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.

Waiting, Waiting

Two big things are expected to happen this week, and neither has happened yet.

MCS Superintendent Kriner Cash stated at last week's School Board Work Session that the list of under-enrolled schools that could be closed would be released today, in advance of Thursday's meeting on the sole issue of the TPC Recommendation #113 to close at least 20 schools.

In federal litigation news, participants in last week's failed mediation talks have stated that they expect Judge Mays' decision to be issued early this week.

Nothing yet - as of 4:40 p.m.

The list of schools will be easy enough to post, but it will take some time for our intrepid reporters to read the decision and parse through it in order to tell us what it says.  We don't need a repeat of the health care confusion this summer - be sure to flip to the end, y'all.

Merger Mediation Meltdown (whomp, whomp)

Zack McMillin has the breaking news that the merger mediation talks have failed.  Not too much surprise there - wouldn't we all have been much more surprised if the parties had been able to reach a brokered peace?  On the scale of an Egyptian miracle calling a cease fire between Israel and Gaza?  Maybe we needed one of the Clintons.

Here's hoping that the Commercial Appeal can get its formatting problems fixed, so that the twitter feed doesn't continue to interfere with the text of the article.

My earlier prediction seems to be on track, with a decision expected early next week.

Merger Mediation Madness

Strange times in Memphis.

Don't we have to speculate that Judge Mays' decision was nearly complete?  That between his work and that of his law clerks, many hours had already been expended on writing the decision to decide the September trial?

Late last week came word that the parties to the federal litigation would enter into mediation talks this week.  Talks are continuing today, after ending Monday evening.

But what does it all mean?

Several of the more important players have no role in the mediation - Tennessee Senate Majority Leader Mark Norris and the former head of the Memphis City School Board Martavius Jones come to mind.  Not that they're not plugged in to what's happening, but they're not parties to the litigation or the mediation.

There are reasons to settle, regardless of which side you're on.  The legal fees just keep increasing.  The legal sniping just keeps getting uglier.  The whole process has been incredibly divisive, and we haven't even gotten to the trial where the County Commission alleges "resegregation."

But I would prefer to see a clear, precedent-setting decision on the constitutionality of Senator Norris' laws.  I don't think you should negotiate the constitutionality of a law.  And the state legislature has been getting lazy, and getting away with not following their own processes.  It's a political thicket that judges are loathe to enter, but I would encourage Judge Mays to make a ruling.

I suspect that the political consequences for all sides in settling will be too steep, and that settlement will not occur.  But I'm not willing to put money on any of the possible outcomes - just too unpredictable in this environment.

Stay tuned . . .

Waiting in Memphis

Any day now, United States District Judge Hardy Mays will rule on municipal school districts.  Well, not municipal school districts, but municipal school districts in Tennessee.  Well, not municipal school districts in Tennessee, but municipal school districts in Tennessee under Public Chapter 1.  Poor, poor much-maligned, much-reviled, and much-revised Public Chapter 1.

Municipal school districts are definitely legal, and definitely legal in Tennessee.  The question is whether or not Tennessee Majority Leader Mark Norris, when he drafted Public Chapter 1, drafted a law that is constitutional under the Tennessee Constitution.  There are states where every little township that has a stoplight has a school district.  There is nothing at the federal level that requires that school districts encompass entire counties, but Tennessee has imposed its own rules.  In 1982, the Tennessee legislature banned the creation of new special school districts (of which Memphis was one).  In 1998, the Tennessee legislature banned the creation of new municipal school districts.  The result is that in Tennessee, a state with 95 counties, most school districts were formed at the county level.  Special and municipal school districts are the exception to the rule.

Here's a handy-dandy "State Education Brief" from November 2005 that recounts the history and basis of school district consolidation in Tennessee, published by the Tennessee Advisory Commission on Intergovernmental Relations.

A quirk in Tennessee's constitution requires (generally) that laws may not apply to only one city, one county, one town, one whatever without following a particular procedure.  The question before Judge Mays is whether Public Chapter 1 - and now, Chapters 905 and 970, passed earlier this year to "clarify" matters - complies with the Tennessee constitution.  Zack McMillin summarized the about-to-occur trial here.

The trial was difficult to watch.  It was clear from observing most of the gallery that there are some fundamental misunderstandings about what the case was about.  In the opening minutes, a comment from one of the County Commission's attorneys about the County Commission having been disenfranchished prompted many confused looks and frantic whispering.  The looks and whispering were not sarcastic "I've got your disenfranchisement right here," but more like "wait, what?  we're not disenfranching them, they're trying to disenfranchise us!"  At least a couple of the mayors either had not read (or been briefed?) on what the County Commission is alleging - that the procedure to have a law apply only in one place was not followed.

This initial misunderstanding made it clear to me that not only do the parties disagree on the (any?) issue, but they actually disagree about what issue is at issue.  The County Commission argues that the law was intended only to apply, and actually only does apply to Shelby County.  The County Commission's attorneys at Baker Donelson start with what they believe is the better argument - that these laws (1, 905, and 970) are special, local laws.  If they win that argument, then they win the case - because it is clear that no part of the process for passing special, local laws was followed - the county's legislative delegation was not consulted, and the County Commission definitely didn't vote on whether they wanted this law.  That component of the process is why the County Commission is alleging that it was disenfranchised (please excuse my explanation to the court gallery).

The municipalities disagree.  Their Burch Porter attorneys argue that these are not special, local laws - that instead, they are general laws.  Furthermore, the municipalities argue that the court has already decided that at least Chapters 1 and 905 are general laws.  As general laws, the municipalities argue, not only can these laws apply to counties other than Shelby County, but that they actually do apply to at least two other counties.  Secondly, they argue that with some population growth, these laws would also apply in other counties.  Chapter 970, they argue, is not restricted to any county and "simply lifts the restriction on the restrictions on the creation of the municipal school districts after the transfer of administration pursuant to Tenn. Code Ann. § 49-2-502(b)."  (Dkt. No. 369 at 33).  No surprise that the municipalities characterize Chapter 970 in such a bland way, given Judge Mays's previous statement that it is particularly problematic for the municipalities that the law only applies where there is a Transition Planning Commission, and there is only one Transition Planning Commission in the state.

The vast majority of the trial focused on this disagreement over whether these laws are general laws.  The trial had a pretty narrow focus on one of the requirements of the statute:  that in order for the laws to apply in a county, the enrollment of the county school system must increase by 100% as a result of the special school district's surrender.  Baseline, the County Commission says that Shelby County is the only county where the special district (Memphis City Schools) is larger than the county school system (Shelby County Schools).  The County Commission's impressive expert witness testified that natural population growth would not result in any special school district large enough to increase the corresponding county school district by 100%.  The municipalities' less impressive expert disagreed, using a different predictive model.  As a backup argument, the municipalities argued that instead of natural population growth, the focus should be on potential annexation areas.  If, the argument goes, certain Tennessee cities annexed areas in their known annexation zones, the special school district would be larger than the county school district, achieving the necessary population benchmark to bring them under the 905/970 application umbrella - joining little old Shelby County.

A second municipality witness was billed as just a regular old witness that could testify about populations and maps.  Turns out she was an expert mapmaker, and actually the Cartographer for the Tennessee legislature.  A two week delay resulted over a dispute about whether to treat the cartographer as an expert or not.  When the trial resumed, two weeks later, it became apparent that this issue had not been resolved among the parties.  Fast forward to a forced conference among the parties, and by agreement, her testimony was not completed, but she was directed to construct particular maps that would be jointly submitted by the parties.  Phew.

Not discussed at trial was the backup to the backup argument.  The County Commission argues that the caption of the law does not accurately reflect the contents of the law.  A fine point, yes, but a constitutional requirement, nonetheless.

Hmmm.  So how will this turn out?  My money is on Judge Mays finding that the legislature tried to pass a general law.  The special/local law issue is too easy, and would definitely come out for the County Commission.  It is clear that the legislature was trying to pass a general law because it simply did not comply with any of the special/local law requirements.  So if it's a general law, is it actually a general law?  Judge Mays has definitely left plenty of room to rule either way.  I think he will rule that the statutes only apply to Shelby County.  I think the legislative history, as summarized in a chart taking up pages 7-18 of the County Commission PreTrial Response (Dkt. No. 379), is clear that the legislators sought to limit the application of the law to Shelby County.

Here's the thing.  The state legislature, and particularly Senate Majority Leader Mark Norris (R-Collierville), understood that in order to meet constitutional muster, general laws may not apply in only one locale.  But they didn't want it to apply anywhere besides Shelby County.  Turns out other parts of the state do not want their municipalities to willy-nilly form their own school districts.  Explicit in the negotiation and discussion of these statutes was that they would not apply any place other than Shelby County.  So the question is - even in the face of all of that knowledge and discussion in committee, and on the floor, and I have to assume, a number of back rooms - whether the state legislature was successful in making it appear that the statutes are not applicable only to Shelby County.

To me, it's a pretty transparent bait-and-switch.  Of-course-it-won't-apply-anywhere-besides-Shelby-County-but-of-course-it-applies-other-places-besides-Shelby-County.  My money is on Judge Mays finding this little group of statutes unconstitutional.

So if he finds them unconstitutional, then that's the end of the game.  Well, until the appeals start.  And until the legislature's next attempt to revise Public Chapter 1.  But it will mean a respite from federal court activity at least at the District Court level.

But if he finds that these statutes are constitutional under the state constitution, then it just gets uglier from here.  Because the next federal trial is scheduled to start in January.  And that's the case on the federal constitutional claims.  You know, where the County Commission alleges that allowing municipal school districts in Shelby County would have the effect of resegregating public education in Shelby County.  Ugh.

But when, When, WHEN will Judge Mays rule?  Since this decision could negate the need for the second trial, the sooner the better.  But this is a major case, and Judge Mays has a significant caseload.  I think we'll get it either right before or right after Thanksgiving.  This decision is the most important federal court decision in the Western District of Tennessee (if not the state of Tennessee) since the consent order in August 2011.  So it's important that it be well-written, well-reasoned, and in general, as well-done as possible.  Judge Mays understands that it will need to hold up to scrutiny on appeal, and he'll be writing it with that awareness.  And that just takes time.  Once you get past Thanksgiving, though, you start interfering with the holidays.  And if there won't be a second trial, then it seems needless to put the parties (and the court) through trial preparation.

And so, we all are waiting . . . you know, in Memphis.