Monday, December 3, 2012

Judge Mays Did Not Find Munis Unconstitutional

We've been Waiting in Memphis for Forever!  Well, not quite forever.  In some parts of the country, getting a big federal decision like this within two months of the trial would be a feat unto itself.

Just as last week's school board meeting adjourned, U.S. District Judge Samuel H. ("Hardy") Mays, Jr. issued his decision on whether Shelby County's six municipalities, the six other than Memphis, can withdraw from the merged Shelby County Schools and create their own, individual school districts.  Judge Mays' decision was a dampening "Not Yet".  Here's the decision.

Decent coverage from Bill Dries.  Strong coverage from Zack McMillin.  Better coverage from Jackson Baker.

It's been almost a week, and the dust is settling.  And new dust is kicking up.  But let's start with the decision.

Judge Mays issued a very limited decision that answered only some of the questions surrounding whether the formation of municipal school districts in Shelby County may proceed.  Of the three statutes in question, Judge Mays only addressed Chapter 905, leaving Chapters 1 and 970 for another day - and further briefing.

The result is that Chapter 905 was found unconstitutional.  Chapter 905 governs the process that a municipality would go through to create its own school district.  Judge Mays found that the law was unconstitutional for two reasons.  Though I doubted he would do so, Judge Mays found that the law was actually a private act, and that the requirements for a private act were not followed - those requirements including the ability of the County Commission to vote on (and possibly reject) the law's application to Shelby County.  The now famous passage from this aspect of the decision is:  "There is in the history a sense of a wink and a nod, a candid discussion of the bill's purpose occasionally blurred by a third-party correction.  The history is clear, however, that the bill never would have passed had it not been intended to apply only to Shelby County."

However, the Judge spent a much greater portion of the decision on the question of whether there are other counties where Chapter 905 could apply.  Judge Mays went through a detailed discussion of the population forecasts given by the experts, finding the County Commission's expert credible and the municipalities' expert less so.  Judge Mays decided that the law could not reasonably, realistically apply in any Tennessee county besides Shelby County based on current populations in current school districts.  To Judge Mays, this called into question the intention of the state legislature, and allowed him to get into the legislative history.  Once he got to the legislative history, and the many exchanges between the legislators, the decision was an easy one.

The result is that any actions taken under Chapter 905 are voided - including the referenda in all 6 municipalities to form their own school districts, and the elections of school boards.  Those newly elected school boards will not be sworn in, and will have to at least go through the motions of another election (if the municipal school districts proceed).

Not voided is the possibility of municipal school districts.  Though Judge Mays will hear further argument, and may eventually rule on Chapters 1 and 970, both are currently still in force.  This means that once the merger is complete at the start of school in August 2013, the municipalities may again proceed their withdrawal process.  But the schools of the future possible municipal school districts will remain in the merged district for at least the 2013-14 school year.

Further litigation - at least in the form of appeals - seems likely.  The municipal mayors will meet tomorrow with their lawyers to map out their route.  School Board Chair Billy Orgel is pushing for a negotiated peace without further litigation.  Former SCS Board Chair David Pickler is working on a third way  - proposing that the municipalities either form (or align with existing) charter management organizations to operate the schools in the municipal borders.

Judge Mays, in my view, has made it clear that he does not wish to rule on this.  And I think he's right that it is not preferred that a federal judge decide these kinds of issues.  But I think the open hostility among the parties has poisoned their ability to get to a negotiated peace, and that it will likely fall to him (or the Sixth Circuit above him, though probably not the Supreme Court) to decide whether the state legislature has acted appropriately.

No real winners here, and only one clear loser.  Senate Majority Leader Mark Norris could pooh-pooh objections from other politicians who complained that his quickly (and poorly) drafted statutes did not meet constitutional muster and were a state attempt to meddle in local affairs.  Senator Norris did not have to work very hard to work himself into an outrage when the state Attorney General interpreted Norris' law as it had been written, but reached a different result than Norris.  But he's been working on this group of laws for nearly two years at this point - revising and editing the language, cajoling and pitching to his legislator colleagues.  And in the end, a federal judge has agreed with the senator's detractors - that the law was ill-advised and did not meet the requirements of the Tennessee Constitution - a document, of course, that Norris has sworn to protect and defend - as a state legislator and an attorney.  We'll find out what route Senator Norris will take in the next legislative session in January - whether he has been chastened or emboldened.  I don't think there's a third way for him.

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