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VOL. 132 | NO. 193 | Thursday, September 28, 2017

City’s Legal Path to Statue Removal Complex

By Bill Dries

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The administration of Memphis Mayor Jim Strickland is setting the stage for a critical Tennessee Historical Commission hearing next month in its bid to remove a statue of Confederate general, slave trader and Ku Klux Klan Grand Wizard Nathan Bedford Forrest from a city park.

The city’s chief legal officer, Bruce McMullen, sent a letter last week to the executive director and the chairman of the historical commission that outlines how the city intends to get the matter heard and decided at the Oct. 13 meeting in Athens, Tennessee.

The city is seeking a waiver from the 2013 state law that forbids the city from removing the statue. The historical commission, at the start of the meeting, will not have any formal rules or criteria in place for how to consider such a waiver petition, but those rules are in draft form, McMullen said.

The Tennessee Historical Commission will have procedural options when Memphis seeks a state-law waiver Oct. 13 to remove Confederate monuments. (Daily News File/Houston Cofield)

The commission could approve that criteria in the normal course of business, but it would then go to the Tennessee Attorney General’s office for review.

“They could come in and submit it and adopt those rules just for a short period of time in order to continue to do business,” McMullen said of his request in the Sept. 19 letter, which is copied to Tennessee Gov. Bill Haslam. “They are not required to adopt emergency rules. They could stonewall us procedurally and say, ‘We’re not going to adopt.’ But if it went our way and they adopted emergency rules … they would then vote up or down our position.”

The emergency rules would be the same rules sent to the attorney general for review.

McMullen cites a part of the state law governing “uniform administrative procedures” for state agencies, including the historical commission, that allows for the passage of such emergency rules if “the rule only delays the effective date of another rule that is not yet effective.”

Bruce McMullen

In his letter to historical commission leaders, McMullen writes that under that condition, the city’s request for emergency rules is “a proper exercise of the commission’s authority.”

That is one of several grounds for a set of emergency rules. Another is that “an immediate danger to the public health, safety or welfare exists and the nature of this danger is such that the use of any other form of rulemaking authorized by this chapter would not adequately protect the public.”

But the city does not plan to argue that point.

If the city’s plan pans out – the historical commission adopts emergency rules, hears the city’s request and grants the waiver – McMullen said those opposed to the removal of the Forrest monument could still appeal the matter to Davidson County Chancery Court. The city could do the same if its waiver request is denied and Strickland has said that would be the administration’s response.

City Council attorney Allan Wade told council members in August that the state law governing the removal of such monuments is more complex than the procedures “for the state putting someone to death by lethal injection.”

Council members vote Tuesday, Oct. 3, on third and final reading of an ordinance that sets in motion the removal of the Forrest monument and a statue of Confederacy president Jefferson Davis from another city park at any point after the Oct. 13 historical commission meeting.

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