Tue
Jun 13 2006
10:23 am

Chancellor Weaver's ruling makes it clear that there were massive systemic failures at every juncture of the Knox County charter process: inception, preparation, filing, administration.  Had the charter been properly written and filed, or had someone been diligent and caught the errors and fixed them in an appropriate manner, we wouldn't be in the mess we're in today.

So who's responsible for this?  (More after the jump.) 

It might be easier to identify who isn't responsible, but I'd like to open the floor for nominations to the Knox County Cavalcade of Incompetents.  In my view, anyone who had any role in drafting, reviewing, preparing, (non-)filing, overseeing, administering, or enforcing the County Charter would be well served to 'fess up now to their errors.  Broadly, that would be anyone on the charter's drafting commission, the County Commission, and anyone who has held any County office of any responsibility since the Charter came to life. 

I'd love to hear some specific names, though.  It's time for the blame game, because mistakes of this magnitude should have genuinely adverse consequences for those responsible. 

If you can't even create your government properly, you're not fit to govern.  The manifest and sustained incompetence of our elected leaders is the second-best argument for term limits; the best argument, of course, being that the people voted for them, expected to get them, and can be expected to vote for them earnestly again.

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R. Neal's picture

Well, I wasn't around during

Well, I wasn't around during any of this so you can't blame me (although I owned property and paid taxes - think I can get a refund?).

But here's a list of suspects from the Charter its own bad self:

OFFICIALS of KNOX COUNTY, TENNESSEE
AT THE TIME OF THIS CODIFICATION

County Executive:
Thomas Schumpert

County Commission:
Diane Jordan
Rudy Dirl
Madeline Rogero
Billy G. Tindell
Wanda Moody
Pat Medley
Bee DeSelm
Scott Davis
Mike Ragsdale
Frank Leuthold
John Griess
Mark Cawood
Ralph Teague
Mary Lou Horner
Leo J. Cooper
Mike McMillan
John Mills
Robert Bratton
Howard Pinkston

County Law Director:
Richard Beeler

County Clerk:
William Mike Padgett

It doesn't say who was running the Election Commission, which I presume had some statutory role in filing certification for the vote on the charter? It also doesn't say who wrote the thing.

Oren Incandenza's picture

That's a fine start.

I believe there was a "charter commission" responsible for authorship.  That's a list I'd really like someone to find.  Meantime, I think fair questions to any of these people would be: (1) how did you actively contribute to the charter process, (2) how did you satisfy yourself that everything was compliant, and (3) what would you do differently if you could, knowing what you know today?

Andy Axel's picture

"cavalcade"

Just wanted to say, "Cavalcade! Damn. That's a good word."

I need to work that into conversation today.

____________________________

"The iPod was not developed by Baptists in Waco." -- G.K.

rikki's picture

simple

(3) what would you do differently if you could, knowing what you know today?

Change one instance of the phrase "constitutional officers" to "Sheriff, Trustee, Register of Deeds, County Clerk and Property Assessor". That's all it would take for Weaver's ruling to dissolve. The charter document required that it be properly ratified with the state, so you can't blame that on the charter commission.

Given the language of the Supreme Court ruling in Bailey, I give Weaver's interpretation 50-to-1 odds of holding up on appeal, but it will certainly hold up long enough to get the incumbents into their first ill-gotten term.

Number9's picture

but it will certainly hold

but it will certainly hold up long enough to get the incumbents into their first ill-gotten term.

Which is the end game of this whole little passion play. Don't look for a White Knight on a white horse because there aren't any left. The Charter will be saved after and only after the ballot is locked.

Removal for cause, violation of their oath, is probably the most realistic option. But that would only remove five of them. The other four ineligible incumbent commissioners would get a free ride.

This is about the ten votes on County Commission that the County Mayor needs to pass his agenda. Will the November ballot have a removal for cause referendum for the five who violated their oath when they sued Knox County to invalidate the Charter? Even if or when they are removed County Commission would select the replacements. No need to concern the voters with such responsibility. So the ten vote majority would be unchanged.

Is a want-to-be Sun Tzu laughing at us from his lair in Nashville? The utter contempt for the people and the law knows no bounds.

Number9's picture

Well, I wasn't around during

Well, I wasn't around during any of this so you can't blame me (although I owned property and paid taxes - think I can get a refund?).

But here's a list of suspects from the Charter its own bad self:

OFFICIALS of KNOX COUNTY, TENNESSEE
AT THE TIME OF THIS CODIFICATION

County Executive:
Thomas Schumpert

Randy, I think that document is from 1997. I have been looking for the 1988 version for the correct names. Dwight Kessel served from 1982 to 1994 so he was the County Executive at the time. I believe Tommy Schumpert served from 1994 to 2002.

Billy Tindell, Mary Lou Horner, and Wanda Moody were present on County Commission at the time the Charter was written in 1988. Workman was the County Law Director in 1988.

Rachel's picture

I don't know the entire list

I don't know the entire list of the Charter Commission (it should be available somewhere).  But... Billy Tindell was on it.  Yes, the same Billy Tindell who sued to have the very document he helped write declared invalid.

 Who said irony was dead?

 P.S.  I also heard Susan Richardson Williamson say the other day that she was on it.  I think Frank Leuthold was as well.

Bbeanster's picture

You are making these

You are making these judgments based on one (1) judge's opinion. How do you know that he's not the one who is wrong?

How do you know that the people who wrote the charter aren't at least as smart as he is, and that they maybe had good reasons and ample precedent for writing the document the way they did?

How do you know that Weaver wasn't constructing a case to justify his own previous obiter dicta** which gave birth to this misbegotten lawsuit?

(Law.com: (oh-bitter dick-tah) n. remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts. Generally, obiter dicta is simply dicta.
See also: dicta dictum)

This charter has worked fine for 16 years. The "fatal" flaws Weaver sees hardly constitute sufficient reason to create all this uncertainty (not to mention flout the clear intent of the people who voted for term limits) by tossing it. let's be clear here: Weaver's own ramblings gave the five commission plaintiffs and their lobbyist lawyers who were desperately seeking a way to evade term limits an issue to claim as their own. It also gave them a friendly court to hear their case.

And the result made almost everybody in the courthouse happy.

The fat lady ain't sung on this one yet.

Oren Incandenza's picture

A moment for rebuttal?

Bbeanster says: 

How do you know that the people who wrote the charter aren't at least as smart as he is, and that they maybe had good reasons and ample precedent for writing the document the way they did?

OK -- let's identify them and hear from them.  You're probably the most enterprising reporter in town, so if you'll tell their story maybe you can help set things straight.  Instead of just railing against the opinion, educate us about why it's incorrect, why and how these people did what they did in the charter process.

Sadly, all we have to go on now is the opinion, which is (or should be) based upon the evidence that was properly presented in the courtroom.  If someone had presented evidence that the charter was correctly drafted or filed, I doubt that Chancellor Weaver would have ignored that evidence.  By your own estimation, he's honest and hardworking.  And if he did ignore such evidence, or if he's just flat wrong as a matter of law and it was properly drafted or filed, then Weaver will get reversed.

Aside: all this panic about purported uncertainty in the county government is wholly manufactured.  The laws provide that if your charter fails, you revert to the standard statutory governance scheme.  If you have to re-enact some ordinances, that's not too difficult to manage -- or at least it shouldn't be.  Given our experience, I am about convinced Knox County politicians could screw up a baked potato.

How do you know that Weaver wasn't constructing a case to justify his own previous obiter dicta** which gave birth to this misbegotten lawsuit?

Finally, there's no such thing as dicta.  Everything a judge says or writes tells you something about his or her view of the law.  You ignore it at your peril.

rikki's picture

reasonable assumptions

I offered a fairly detailed explanation for why I think Weaver's ruling is flawed and will be overturned. It's under the heading "Reasonable assumptions."

The uncertainty is not about the county government so much as this year's elections. Let's review: filing deadline passes under the Court of Appeals ruling invalidating term limits; deadline for finalizing the ballot passes, absentee ballots are mailed; Supreme Court overturns Court of Appeals, making most incumbents ineligible; two incumbents suspend their campaigns; more than 40 write-in candidates register; voters cast their ballots believing that term limits will be enforced; during early voting, Weaver idly speculates that the charter might be invalid; following the primary, Weaver hears a case which has expanded from the original question -- whether term limits apply to all county offices or just commission and mayor -- to questioning the validity of the charter; write-in candidates who attained 5% support begin raising and spending money; Weaver rules, knocking a couple write-ins from the ballot.

Potentially, we could see another ballot finalized, then fouled before voting begins or during early voting if Weaver's ruling is overturned. Alternately, August winners could be later deemed ineligible, necessitating a special election. Or Weaver's ruling could hold up.

Oren Incandenza's picture

I'm not so sure.

You do write a thoughtful summary of why the ruling could be overturned, but here are the problems I still see, all of which point back to the politicians charged with getting these things right in the first place:

- "The alleged omissions are Weaver's creation."  Not really.  He explains the statutes they had to follow and explains how they failed to follow them.

-- "No offices or duties were created, destroyed or redefined by the charter, and the casual references to 'constitutional offices' in the charter clearly imply the continued existence of those offices, though they are not explicitly named. It is obvious that the intent of the charter was to change nothing at all about the county government except for the need to get state approval for legislative acts."  I would submit that the "casual references" evidence sloppiness and that, when you have to tell me the intent is obvious, it probably is not.  The best way to make your intent obvious is to follow the statute and spell things out.  Nobody did that here.

-- "John Schmid's argument that the unnamed offices were abolished is absurd, as Weaver found, yet Weaver's decision to invalidate the entire charter because those offices are only mentioned implicitly is equally extreme."  I think there's plenty of room for disagreement here.  Again, follow the statute and do what it says, and you button down this issue.  Fail to do so, and you create a governing document that violates the law.

--"Similarly, his conclusion that the failure of county functionaries to properly ratify the charter renders it invalid is an absurdity. Office holders do not have the power to nullify the will of the voters by simple neglect."  Really?  Seems to me they do it all the time at all levels of government.  I doubt any of the people involved here is or was smart or Machiavellian enough to have failed to ratify the charter while thinking this could be the result years later.  But the laws require ratification for a reason, and someone who cared should have made sure it happened.  No one did.

 

rikki's picture

chumps?

The requirements for ratification should have been satisfied, but that is only reason to insist they be met, not reason to invalidate the charter. Mike Moyers submitted the charter to the state last week. Sure, it's 16 years late, but it's better than permanently blowing off the will of the voters.

As for the objections to the language of the charter, it basically boils down to whether you are looking for a technicality by which to trash the thing or a way to repair it. The vague language leaves room for play, but the intent of the voters is plain. Changing a single instance of the phrase "constitutional offices" to a discrete list of those offices would render Weaver's objections to the charter language moot. That's a technicality leveraged against voter intent.

 Voter intent has been clear all along, persistent attempts to ignore or abolish it by executives, commissioners, law directors and judges notwithstanding. Is your position that voters are just sad-ass chumps for trusting a bunch of clowns with the authority to represent them? That might be true. I'd certainly entertain a reasonable argument to that end.

Oren Incandenza's picture

Chumps aplenty.

Please understand: I agree with you that the voters' intent is clear and that we should have term limits.  I think that's clear from the last graf of my post.  But I also think it's unfair to blame Chancellor Weaver for this mess.  Judges can only act on what's properly in front of them.

What I guess I've been trying to avoid saying in so many words is, we're all chumps.  (I didn't live here at some of the relevant times but I'll bear some responsibility anyway.)  We elected people to do a fairly straightforward job, they proved (intentionally or negligently) incapable of doing it, and -- this has sort of been the unsaid part -- all of us should have pushed all of them harder to make sure it happened. 

Sadly, when only 15% of us vote (and when the other 85% probably don't read this blog) we utlimately have no one to blame but ourselves.  But I'd like to think those we elected and trusted to do what we told them to do would at least be able to follow fairly clear rules and procedures.  I think Chancellor Weaver's opinion and the evidence presented to him make it clear that our elected leaders cannot or will not do that, and those responsible should be held accountable.

bill young's picture

rikki's got a point

Best I can figure,Rikki's got a point.The Chancellor was compelled to require the county follow the manner spelled out by the Constitution.However,nothing  indicates that the manner to ratify does not allow the filing of results 16 yrs. later.With respect to the Chancellor's opinion of the duties per the Charter.In the Courts some have agreed with the Chancellor's opinion.Others have argued that as long as the Charter does not grant additional duties(which shall be written into the Charter) the ultimate authority of the Constitution prevails.What the opinion does is root the ambiguity out of the code concerning how a Charter defines duties. So the results are on file & in November we define the duties;the Charter lives.The question is...how will term-limits be enacted.

rikki's picture

accountability

I think we are in general agreement. In my original post, I said "Weaver was operating in a vacuum" in reference to the lack of an uncompromised argument on behalf of the voters. I would have more sympathy for Weaver if not for the fact that he was the first to suggest the charter might be invalid. I also think he went too far in his ruling. The deficits he identifed are real, but they do not seem insurmountable or irreparable, so he should have sought a resolution honoring the will of the voters.

I'm not sure what it might mean to hold accountable those officials who might be responsible for the charter deficiencies. We could remove them from office, but they're not in office anymore. Removing their sucessors seems more vengeful than just. The damages here are fairly abstract, so the legal system will probably not be the venue for holding any officials accountable.

I do think the voters have been penalized by this ruling, and that needs to be remedied. Ragsdale's solution is excellent for fixing the charter if Weaver will consent to a stay, but at this point, it looks like the 2006 county elections, already bruised, will take a further beating. A superfast reach-down appeal by the TSC could prevent candidates who ultimately might be declared ineligible from appearing on the August ballot, but they'd then be replaced by party nominees, and time is rapidly expiring for all that to transpire.

Oren Incandenza's picture

Accountability via memory

Unless they're still in office and can be voted out, the best way to hold them accountable is to remember they had a chance to get this right and failed.  That's why I hope more names will come to the surfaqce.  We should henceforth affix an asterisk next to the name of any official who had anything to do with this train wreck so people can remember to enhance their skepticism of the official accordingly.

Anonymous's picture

rikki or someone who has

rikki or someone who has read the lawsuit--how is it that the charter review committee thinks it can "fix" the technical issues with the charter, without including putting term limits back in? If they're going to further define the constitutional officers, can they not further define term limits so that they can stick? Can anyone explain that? Or are county term limits dead unless another referendum on them is placed on the ballot?

rikki's picture

presumption

I'm not sure what makes you think the committee intends to do anything other than repair the defects in the charter identified by Chancellor Weaver. On the other hand, I don't know why such a large body is needed to correct a small and discrete omission.

If the committee ends up being formed and empowered and they do anything other than honoring the expressed will of Knox County voters, I'd hope someone starts a petition to dissolve the entire county government and elect a new one in 2008 or sooner. It might not be a bad idea to start collecting signatures right away to remove from power any officeholder who has served two or more terms. That would help keep the rewrite committee honest.

Given that the enabling legislation in the state Constitution says a charter is ratified when approved by the voters, it would seem that invalidation of the document is not an option, that repair of the deficient language and negligent filings is the only Constitutional remedy.

Johnny Ringo's picture

Repairing the Charter

Rikki, the only method to "repair" the charter is to call for the creation of a Charter Review Committee, and under the Charter provision that allows for that, 9 of the members must be county Commissioners, and 10 must be non-commissioner citizens, hence the size of the committee. There's no other route to "fixing" the Charter - only an appeal, or a complete re-write which could not go into effect until 2010 by operation of state law. Actually that's not quite right - the County Commission itself can by 2/3 vote of its membership itself suggest charter revisions to go on the ballot, but I think that's unlikely to happen.

Number9's picture

If the committee ends up

If the committee ends up being formed and empowered and they do anything other than honoring the expressed will of Knox County voters, I'd hope someone starts a petition to dissolve the entire county government and elect a new one in 2008 or sooner.

It sounds like you are suggesting the people take back the government. Maybe the "Wheel Tax" crowd and the "Take back the Government" group had a point?

Anonymous's picture

What makes you think...

Rikki said: "I'm not sure what makes you think the committee intends to do anything other than repair the defects in the charter identified by Chancellor Weaver."

 answers:

1) naivete

2) hope

3) despair

4) respect for the will of the voter.

except that unfortunately, the current commissioners obviously viewed term limits as the biggest defect of all.

Number9's picture

We really do need a recall provision in the Charter

I'm not sure what it might mean to hold accountable those officials who might be responsible for the charter deficiencies. We could remove them from office, ...

Under the Charter the only way you could remove a commissioner was at the ballot box. However under the State Constitution there is a recall provision. The Charter does not allow a recall or removal option. In re-writing the Charter a recall provision should be included.

In today's Sentinel there is a disturbing item about Commissioner Mike Hammond. While the rest of the panel of 19 feels term limits should be in the Charter Hammond is soft on the issue.

Voters overwhelmingly approved term limits in 1994.

"The will of the people needs to be a major factor in how we proceed," Anderson said.

Another citizen member of the committee, Nancy Young, said she also supports term limits being part of any future charter.

So, too, did commissioners David Collins, Diane Jordan and Ivan Harmon, all three of whom are members of the review committee. Collins and Jordan are plaintiffs in the lawsuit that led to Weaver's ruling.

"I've never had a problem with term limits. It's just the way this came about. I'm for the wishes of the people," Jordan said.

And Collins added, "I don't have any problem in the revised charter having the term limits in it. I will support that."

"That would be the first thing I'd make sure is in there," Harmon said.

But first-term Commissioner Mike Hammond, also a member of the review committee, said he's not yet willing to decide one way or another on that issue.

"It all depends on what happens Monday. There are several questions that I have, like when would they go into effect," Hammond said.

He also questioned whether the county should have individual referendums on offices like sheriff.

But he added, "Citizens have made it clear they want term limits."

So in District 5 you have John Griess who sued to invalidate the Charter and you have Mike Hammond who can't decide about term limits.

We really do need a recall provision in the Charter.

(link...)

Rachel's picture

I agree with the Beanster

I agree with the Beanster that Weaver's own comments started this mess.  Which makes me wonder why everyone was so suprised at his ruling.  I kind of expected it, since he set it up already.

I heard Frank Leuthold on tee vee say that the Charter Commission omitted specific language about the Constitutional offices because they thought it was unnecessary and already covered by the Constitution, and that may be a good reason.  Leuthold was also very gracious in his remarks about Chancellor Weaver, saying something to the effect that he really couldn't argue with the flaws he found.

Just to be clear, I personally wasn't criticizing the Charter Commission, just Billy Tindell for participating on it and then suing to overturn its work when he thought it was to his personal benefit.

P.S.  Nice piece, Rikki.

rikki's picture

statutory construction

This week's Metro Pulse editorial comes down hard on Chancellor Weaver as the primary culprit in this mess. They point out that the legal principle of statutory construction obligates judges to endeavor to preserve legislation rather than abandon it whenever possible, a principle Weaver seems to have disregarded. The editorial goes so far as to express regret that Weaver has no opposition on the August ballot, leaving voters no recourse against him.

A write-in Democratic candidate for that seat in May would have made it much harder for Weaver to justify keeping this case in his court. It is still possible for someone qualified to be judge to mount a write-in campaign, and with the new voting machines, it is no longer necessary for voters to go out of their way to request a paper ballot. It can all be done right there on the machine, making write-in campaigns more viable than they once were.

Are there any Knox Co lawyers out there willing to mount a write-in campaign against Weaver? 

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