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Well-known Judges Score Low On Bar Survey

McCalla -- Temperament questioned.
Judge not lest ye be judged. The Memphis Bar Association has turned that biblical admonition on local judges, and the results are harsh.

Some of the best-known judges in Memphis are also some of the worst, according to a bar association survey released Friday.

U.S. District Judge Jon McCalla, in the news this month for a simmering feud with the Burch Porter & Johnson law firm, scored by far the lowest of any federal judge and lowest overall of any judge in any court in Shelby County. On a 1 to 5 scale, McCalla scored an overall rating of 2.27. His lowest ratings were in the categories of proper judicial demeanor (1.83) and open-mindedness (2.03).

"As federal judges, our obligation is to the law and the Constitution, not to please or displease any particular group," McCalla told the Flyer. "Beyond that I can't comment."

Like other judges, McCalla is hamstrung by judicial canons in responding to the survey.

Attorneys rated judges on a scoring scale of 5 for excellent, 3 for satisfactory, and 1 for unsatisfactory. Judges were rated in 10 categories plus "overall performance." The overall performance rating was a separate question, not a composite score of the other 10 categories. Of the 2,907 lawyers who received the survey, 695 responded.

Bailey -- Worst on punctuality.
Attorneys were asked to rate only judges before whom they have practiced, but they were on the honor system so there is a possibility of ballot-stuffing. More than 400 lawyers rated the state court judges; more than 300 rated the federal judges; fewer than 100 rated some of the municipal judges. Responses were anonymous.

The full survey findings can be viewed at www.memphisbar.org.

McCalla has been criticized for his temperament and for berating lawyers. He is currently presiding over the Shelby County jail lawsuit. The two other federal judges, Julia Gibbons and Bernice Donald, had overall performance scores of 4.45 and 4.13, respectively. The federal magistrates and bankruptcy judges all scored 3.78 or higher, with U.S. Bankruptcy Judge David S. Kennedy the highest at 4.79.

Former state lawmaker Karen Williams (3.13 overall), Kay Robilio (2.57), and D'Army Bailey (2.52) fared worst among the Circuit and Chancery Court judges. Williams was rapped for being slow on rulings (1.98), Robilio for shaky knowledge of the law (1.92), and Bailey -- a part-time actor and former mayoral candidate -- for not convening court punctually (1.60).

The Circuit and Chancery Court judges with the highest overall ratings were John McCarroll Jr. (4.56) and Robert Lanier (4.51).

The lowest rating among the Memphis Municipal Court judges went to Earnestine Hunt-Dorse (2.80). In Criminal Court, W. Fred Axley brought up the rear (2.70). Their peers with the highest ratings were Donn Southern (4.61) and W. Otis Higgs Jr. (4.34).

Hunt-Dorse -- Lowest score for a Memphis city court judge.
"One of the obligations of the bar is to educate the public about the judicial system," said Linda Holmes, chairman of the Judicial Evaluation Committee. "This judicial evaluation is one way the bar association can give information to the public."

The Memphis Bar Association has historically been wary of rating judges and backed away from a similar survey two years ago. The canons of the ethics prohibit lawyers from making false statements about a judge or adjudicatory officer, and common sense usually dictates that they keep their mouths shut for the sake of their clients if not themselves.

The flip side of that argument is that lawyers know better than the general electorate who is qualified and unqualified. All judges are elected except for the federal judges and magistrates, who are appointed. Voter turnout in judicial elections is usually the lowest of any elected officials due to apathy and lack of name recognition.

A few judges, such as former Criminal Court judge turned television star Joe Brown, have taken matters into their own hands and molded high-profile public images. But more often than not, if a judge is in the news it is for doing something (or allegedly doing something) bad, not something good.

McCalla, appointed to the federal bench in 1992, is being investigated by the U.S. 6th Circuit Court of Appeals for criticism of his behavior, while Axley, a judge since 1982, has been sued twice for alleged sexual harassment by clerks in his courtroom.

Robilio -- Knowledge of law questioned.
At the Flyer's request, McCalla's office provided a thick folder of internal reports showing that he has consistently had fewer cases pending than his colleagues over the past eight years. He also gets consistently high marks from jurors.

Axley wrote a brief note to the bar association while the survey was in the works, saying "the questions are appropriate" and he looked forward to the results.

A longer response to the survey came from Bailey, who wrote: "I think that to have a meaningful evaluation it should be broader based than simply a survey of attorneys. Others affected by a judge's performance such as jurors, litigants, and court personnel should also have some input ... ."

The survey was the product of several months of research, including input from judges on the questions. It could become the judicial benchmark, so to speak, by default because other measurements of judicial performance are either nonexistent or not widely disseminated. Jurors, for example, fill out questionnaires at the conclusion of trials but the results are rarely seen by anyone other than the judges themselves.

The survey will be repeated every two years. Holmes said she has had only a handful of reactions so far. Three judges commended her for the survey and another asked a technical question.-- John Branston

MLGW: Pay For NBA Arena Or Lower Utility Rates?

Memphians need look no further than a "No Taxes NBA" yard sign to see that the debate on getting an NBA team here is centered on who will pay for the arena.

To aid in the financing of the proposed arena, Memphis Light, Gas and Water has pledged to contribute approximately $50 million to the arena from its Water Division. However, some Memphis business owners and residents have speculated that if MLGW has the money to contribute to the arena financing plan, then that money should instead be applied to a rate decrease.

MLGW president Herman Morris, when he was head of the utility's legal department, had a similarly conservative view on what money belonged to the utility and what belonged to its customers. The Flyer recently obtained a legal memorandum written by Morris on March 30, 1995, and addressed to MLGW's then-president Bill Crawford, detailing the utility's obligations to its rate-payers.

Though the document Morris prepared for Crawford was written to address the legality of the commingling of funds within the utility, Morris also discusses the utility's responsibility to rate-payers with regard to any surplus funds. In the nine-page memorandum, Morris states that, under the utility's charter, surplus funds in any MLGW division are the property of rate-payers and must be applied to a rate decrease.

"It is my opinion that ... a Tennessee court could find that the customers of MLGW who are entitled to have the surplus funds used to reduce their rates have a property interest in such funds, and further, that MLGW holds those funds in trust for those customers," Morris' memo reads.

Under the proposed financing plan, MLGW has pledged to contribute approximately $2.5 million a year in "payment in lieu of taxes" (PILOT) money, for a total of about $50 million over a 23-year period.

Morris' 1995 legal interpretation may give opponents of the NBA financial plan added ammunition in their battle to keep tax-paid dollars out of the deal. Whether or not MLGW can contribute to the financing of the arena seems to hinge on the definition of "surplus." And while some rate-payers think MLGW should apply surplus money to a rate decrease, the city of Memphis and MLGW don't see the money as surplus.

Tom Jones, senior advisor to Shelby County mayor Jim Rout, offers this explanation of MLGW's PILOT funds:

"MLGW, as a public utility, does not pay property taxes. It pays payment in lieu of taxes [PILOT], rather than taxes, of an amount determined by the city and county government. MLGW has never paid a PILOT for the water department because there was a 30-year-old bond issued, and before now they have been paying off that bond. Those bonds are about to be paid off and for the first time the city has the opportunity to collect PILOT money from the water department and has chosen to earmark that money for the arena," says Jones.

According to Marlin Mosby, bond consultant for the city of Memphis, without the proposed arena financing plan, MLGW would not have begun paying PILOT money to the city until 2012. Mosby says that under the current arena proposal, the city would "defease" the debt owed by the water department in order to free up money in the utility so that it can begin paying the city PILOT funds in July of this year. This PILOT money would go directly to the city, which has allocated it for the NBA arena.

Nashville attorney Patrick Flynn believes that such a plan would be contrary to the City of Memphis' charter. "By definition, surplus funds are funds that are not needed at the present time," says Flynn. "If the PILOT payments were not scheduled to be paid until 2012, then the money for those payments is not due at this time and is therefore surplus. As I understand the Memphis charter, surplus funds must go into a rate decrease for the MLGW rate-payers."

Under the MLGW charter (which is included as an amendment to the charter of the city of Memphis), "Any surplus thereafter remaining over and above safe operating margins, shall be devoted solely to rate reduction."

The charter says that all revenues the utility collects for the Water Division must be applied, in order, to six categories of expenditures. The charter also says that any "surplus" funds after the six categories have been satisfied must go to a rate decrease for MLGW customers.

Moreover, under the trustee relationship that Morris' memo says is created between the utility and rate-payers, the utility is bound by law to act to the greatest benefit of the rate-payers.

"Obligations imposed by the MLGW charter ... can be interpreted to impose a trustee relationship on MLGW as it relates to those rate-payers. If so, those rate-payers would have a property interest in the surplus funds and could bring suit to enjoin MLGW from transferring funds to other divisions ... ," the memo reads. He adds in the memo that depriving rate-payers of this property interest without "due process of law" would open the city up to lawsuits as rate-payers could seek to enjoin the city from transferring the money.

"Under the Tennessee Constitution, property interests are secured by the Constitution and cannot be taken away except by 'due process of law' or 'the law of the land.' If ... the MLGW charter, by its terms, creates a legitimate property interest in its customers' entitlement to a specific use of the surplus funds, procedural due process requires notice and an opportunity to be heard by a fair and impartial tribunal before the property right is taken away. A referendum on the Charter Amendment should satisfy this requirement," reads Morris' memo.

Morris also states that for the utility to legally act contrary to its charter, the charter must first be amended. However, his memorandum states that attempting to procure such an amendment "might also threaten the financial rating [AA] of MLGW, to the extent that it created a perception of confusion, instability, or financial problems."

According to the memo, the liability is not limited to the city of Memphis and MLGW. He notes that not only could the city be held liable for depriving rate-payers of property rights, but that the "municipal officers" could be held personally liable as well. In this case, this personal liability would extend to Mayor Herenton, all members of the Memphis City Council, and to Morris himself.-- Rebekah Gleaves

The full text of Herman Morris' 1995 memorandum to Bill Crawford is available on the Flyer's Web site: www.memphisflyer.com

Behind the Numbers

What the Arena Financing Plan Says

"State law permits the City, by resolution of the City Council, to receive from the City water system operated by MLGW an annual payment in lieu of taxes (PILOT) on all water system properties in an amount not to exceed the taxes that would be payable if the water system were privately owned."

(Editor's note: The financing plan proposes to use the PILOT payments to finance some of the arena debt, starting in 2003. The annual payment would start at $2.1 million in 2003 and increase to over $3 million in the final year, 2025.)

What the MLGW Annual Report Says

"Operating revenues in the Water Division amounted to $60 million in 1999, an increase of 4.1 percent over 1998, and operating expenses for 1999 totaled $36.1 million, down 1.3 percent from 1998. After providing for operating expenses, debt service, bond reserves, renewals and replacements, and other expenses, the balance of net revenues amounted to $11.7 million."

What the City Charter Says

"The revenue received each year from the operation of the water division, before being used for any other purpose, shall be used for the following purposes." (Editor's note: The purposes listed are operating expenses, bond interest, capital reserves, dividends to the city of Memphis, and expansion of the Water Division.)

"Any surplus thereafter remaining over and above safe operating margins shall be devoted solely to rate reduction."

What Herman Morris Jr. Said In 1995 As counsel For MLGW

"It is my opinion that, under the facts presented in the instant matter, a Tennessee court could find that the customers of MLGW who are entitled to have the surplus funds used to reduce their rates have a property interest in such funds, and further, that MLGW holds those funds in trust for those customers."

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