Reluctantly, but out of a sense of urgency, U.S. District Judge Hardy Mays set Wednesday afternoon as a quick deadline for attorneys’ filings and Thursday morning for a hearing on a Shelby County Commission suit to halt the suburban referenda on municipal school districts now set for August 2.
Mays announced the schedule Monday afternoon at a status conference with attorneys representing the relevant parties in this latest turn of legal events regarding the forthcoming city/county school merger.
“If we don’t get something done this week, my inclination is not to do anything,” Mays said, noting that absentee voting (but not vote-counting) seems to have already begun, with early voting set to commence next week and the election itself less than a month away.
Mays discounted the idea of a temporary restraining order, saying his decision would be on whether or not to enjoin the referenda altogether.
“No judge in his right mind wants to enjoin an election, but, on the other hand, to let it go forward [without statutory authority] would be a mockery,” said Mays, but he carefully limited the substance of this week’s hearing to issues of the standing of the parties and whether 2012 legislation enabling next month’s referenda improperly singled out Shelby County.
The first of those matters has to do with an allegation by Tom Cates, lawyer for the suburban municipalities, that the seven members of the County Commission who brought the suit did so without proper notice, in violation of the state Sunshine Law, and without taking a vote of the full Commission. The second has to do with the plaintiffs’ contention that two bills passed by state Senator Mark Norris fail to apply statewide and are thus unconstitutional.
Mays made it clear that a second allegation by the plaintiffs, that the referenda would tend to cause school resegregation, could not be argued in less than two months’ time. “There’s no way that a court…can decide on discriminatory effects without hearing proof,” the judge said, and Leo Bearman, attorney for the Commission plaintiffs, would respond that “if we don’t persuade Your Honor” on the grounds to be dealt with this week, he would attempt to offer persuasion on the matter of resegregation later on.
Attorneys for the state of Tennessee, the City of Memphis, the Memphis City Council, and the Memphis Education Association were among those present and taking part in the status conference, but the main arguments were borne by Bearman and Cates.
At a “town meeting” on the schools matter held later at the Bartlett Municipal Center, Bartlett Mayor Keith McDonald addressed the issue of whether this year’s Norris legislation, which set population limits under which only Shelby County could qualify at the moment, might come to apply to other Tennessee counties later on.
Here Is the kernel of McDonald’s argument, one which led him to be optimistic about Mays’ forthcoming ruling:
And here is County Commissioner Terry Roland of Millington at the same meeting, making the argument that the 3rd Party Complaint was filed in violation of Commission rules: