Municipal Elections On; A Confusing Day and Result

Posted by John Branston on Thu, Jul 12, 2012 at 6:05 PM

Judge Mays
  • Judge Mays
The courtroom was packed, the lawyers were numerous, the media attentive, the judge most able, the issue most weighty.

The main part of the decision was clear: Judge Hardy Mays decided not to stop the August 2nd election that will decide whether suburban municipalities go forward with separate school systems. The Shelby County Commission sought to stop the election on the grounds that the state law passed earlier this year violates the state constitution.

Mays, however, did not answer the constitutional question. He only said the election can proceed.

He concluded the long day with a 40-minute monologue that was a rare live demonstration of judicial thinking on an issue of great public interest and importance. There was just one thing missing: volume. No one could clearly hear either Mays or the half dozen attorneys who spoke to him.

To be blunt, Mays was guilty of low talking and mumbling. "Your honor, could you speak up," would have been on point, but lawyers don't say such things. Attorney Leo Bearman, representing the county commission, took a seat in the jury box to hear better. The rest of us mortals could only lean forward, strain, cup our ears, and guess.

The testimony was confusing enough. A lot of it had to do not with Shelby County and Memphis but with Gibson and Carroll counties and whether the new law on starting municipal school systems applies to them. Bearman and Attorney Allan Wade argued that the state law was clearly aimed strictly at Shelby County, which would make it unconstitutional. Tom Cates, representing the suburbs, said the law conceivably could apply to the two smaller counties as well as Shelby County. John Ryder, representing the Election Commission, argued that the show should go on, and if Mays were to later decide there is a constitutional flaw in the law, he could undo it before the results are certified on August 20th.

That possibility remains open.

"I don't think it's game over," said school board member David Pickler, a sentiment seconded by Wade who is on the other side.

Mays, who started promptly at 9:30 a.m. and frequently kept the mood pleasant by making jokes that everyone smiling or chuckling (or asking "what'd he say?"), clearly showed the strain of the issue. Early voting starts Friday. He took off his glasses, cupped his face in his hands, squinted, leaned back in his chair, and talked in a soft voice at a time when a booming baritone, or at least a decent working microphone, would have been more appropriate. In his closing monologue, he was obviously thinking aloud, weighing both sides of the case. What was audible sounded very interesting: "I have jurisdiction .... the issue is ripe ... there is substantial controversy that warrants declaratory judgment ... there must be irreparable harm in a constitutional case ... what is the harm here? ... it's one thing to be wrong and be corrected ... all of that counsels in favor of restraint ... I don't like the idea of a bunch of (untallied) votes sitting down there."

Fascinating stuff. I wish I could have heard it and provided some context. In many years of court reporting I have heard many a judge remind a witness to speak up, please. That goes both ways. The right to be heard has more than one meaning. See my colleague Jackson Baker's report for more details.

Comments (10)

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Now, before all of you start spouting what is what, let us look at the reality of things.


Now, for all of you that think that this is some kind of victory, either way, tell the band to hold the music.

He, again paraphrasing, that he will let the election go on because no harm at this point can come to the Shelby County Commission and the other parties to the commissioners suit. I expected this if he didn't make an outright decision on the constitutionality of the laws. He very well couldn't just take the words of the plaintiffs or the defendants, he has to check the laws, etc himself. I did not expect a final ruling on the constitutionality of the laws today.

So, as David Pickler said, standing along side Alan Wade, this is not over.

So, now all of you can come with the untruths, plain misinformation and what you think. At this point youl will look foolish, because nothing was really done as to whether the muni's will be allowed to form msds.

Thank you

report 5 likes, 13 dislikes   
Posted by oldtimeplayer on 07/12/2012 at 6:26 PM

OTP- you did not want the suburbs to have the right to vote. That is all we wanted. Everybody expected this to end up in court. You don't have to be a white-hating message board lawyer to figure that out.

It is clear that the Judge wanted people to have their say, unlike you. None of this is a surprise.

This is very, very, very bad news for the Shelby County Democrat Party and their candidates. They are the huge losers today. Suburban turnout is going to probably be in the 75-80% range, mostly voting Republican. I'm not so certain that wasn't part of the rationale for the Commission to file the suit.

report 11 likes, 5 dislikes   
Posted by bjc123 on 07/12/2012 at 6:32 PM

Excellent synopsis, JBran. Is JB's superior auditory acuity what will enable him to report more details? The acoustics in our federal courtrooms have always been abysmal. Obviously, no one took that into account when they were renovated (whenever that was).

report 1 like, 7 dislikes   
Posted by M_Awesomeberg on 07/12/2012 at 6:43 PM

MA. Partly, and his excellent reporting skills. I flunked my last hearing exam but a canine could not have picked up some of those exchanges.

report 3 likes, 0 dislikes   
Posted by John Branston on 07/12/2012 at 6:59 PM


Cold, Marty, cold.

And most enjoyable.

I reckon our un-learned friend missed that other point that Judge Mays made..The one about Mr. Bearman's arguments against Norris-Todd not having the likelihood of success on their merits.

Perhaps Mr. Bearman's arguments on constitutional issues surrounding the racial questions will be better recieved. Or not.

report 11 likes, 2 dislikes   
Posted by ArlingtonPop on 07/12/2012 at 7:22 PM

I sat in the hearing today. I was particularly amused when Judge Mays, rocking in his chair, abruptly stopped and look at the attorney before him. He asked "do you represent the city of Memphis?" When the attorney replied "yes", Judge Mays said (paraphrasing, of course) if you are here arguing before me for why they should not be able to start a municipal school district, then why have you made it a point this morning to say you (Memphis), too, might be interesting in forming their own municipal school district? That created a lot of laughter from the left side of the court room (suburban side). The other side of the aisle didn't look so thrilled. Great when the judge points out how silly you all look.

OTP, I've taken then honor of going through past articles and collecting some of your quotes. I'm considering making a "OTP's Greatest Hits"...kinda like the Plaintiff's tried today. I can only wonder what your response will be when EVERYTHING is approved by the courts. What would you say then? Or are you guaranteeing victory?

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Posted by Barkley on 07/12/2012 at 7:27 PM


Sure wish I could have been there. I would have loved to have seen Mr. Bearman's face after his side showed the "Greatest Hits' video, and then Judge Mays saying it was "not helpful".

After all that board talk about the importantance of showing "legislative intent"! Be sure to include those comments, also the claim of an 'equal education" clause in the state Constitution and the ban on MSDs ocurring because of unequal county funding and logistical nightmares.

How do I reserve my copy?

report 10 likes, 0 dislikes   
Posted by ArlingtonPop on 07/12/2012 at 7:55 PM

Me too Me too. I want a copy. I'll even help.

report 7 likes, 1 dislike   
Posted by homersimpson on 07/12/2012 at 8:53 PM

OTP, yes we all know the war was not won today.

To say nothing was won today is a mis-statement though. Not having the referenda enjoined was at the very least a small victory for the suburbs because it wasn't a loss.

No one was going to win the case today, but if we were to ultimately win the war, losing the battle today would've cost us a year at least.

Downplay it if you wish, but it wasn't a meaningless victory.

report 9 likes, 1 dislike   
Posted by GroveReb84 on 07/12/2012 at 9:42 PM

Great writeup. I couldn't make out everything being said and have no idea how it was done, but this is fantastic reporting.


report 3 likes, 0 dislikes   
Posted by James Farrell on 07/13/2012 at 2:50 PM
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