The latest charter twist

US District Judge James Jarvis was hearing motions on a dirty bookstore case today. The bookstore owner's lawyer, Joe Leavitt, challenged knox County's right to regulate such establishments, citing the "invalid" charter, and Jarvis served notice that he will send this issue on to the state Supreme Court next week unless someone comes up with a good reason not to. He said he wanted to clear up this term limits issue.

At first blush I thought this was cool, until it was pointed out to me that what he will be sending on to the Supremes is a dirty bookstore case, not Jordan v Knox County. Those boxes and boxes of evidence will not be reviewed by the high court, should they take this case. ,

Also, I'm thinking this judge, whose wife, Gail Stone Harris Jarvis, ran unsuccessfully for Criminal Court Clerk against longtime incumbent Martha Phillips may have another motive. Gail Jarvis's major issue was term limits, but it wasn't enough to dislodge Phillips, who has held this office since 1984 and enjoys immense personal popularity. It would have taken a very special candidate to beat Phillips.

Judge Jarvis seems to be on a mission.

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Paul Witt's picture

My wife and I got our

My wife and I got our license renewal form in the mail yesterday.  Does anyone know how I can contest the wheel tax?

Bbeanster's picture

Apparently you can't. The

Apparently you can't.
The wheel tax came to us in accordance with state statute and will stand, regardless of the fate of the charter.

At least that is what the lawyers say.

Paul Witt's picture

drat

drat

Anonymous's picture

try anyway!

. . .  it'll make things interesting for them.

Old Hickory's picture

He'll Send It to the Tennessee Supreme Court for Interpretation

I was in federal court this a.m. and he's going to send the question regarding the validity of the charter and the underlying opinion to the Tennessee Supreme Court as a certified question under Rule 23 for the Tennessee Supreme Court's determination, as the invalidity of the home rule charter causes the local adult bookstore law to fail.  The Tennessee Supreme Court could wait until the Tennessee Court of Appeals passes judgment on the case and then accept the certification question from Federal Court in Knoxville or they could just say no, which is highly unlikely, since the validity of the county charter is purely a question of state law and the validity of the adult bookstore ordinance can be a question of federal law involving first amendment liberties.

Somebody needs to ask Moyers (assuming he's still running for Chancellor) why he's hiring Chattanooga lawyers to defend the County on these bookstore cases, particularly since the attorney's in Knox County are paying his salary, the attorney's in Knox County are donating money to his campaign, and the attorney's in Knox County are expected to vote in the election.  Last time I checked, Hamilton County attorney's had no vote in Knox County, but I could be wrong. 

There is an abundance of logic in Jarvis' comments regarding those who invalidated it are the ones who are being asked to fix it, although I'm not sure you want the federal judge deciding that question.

Bbeanster's picture

The lawyer you are

The lawyer you are referencing, Scott Bergthold, is a nationally-recognized expert in the area of adult business regulation. He has drafted ordinances and defended municipalities all over the country, and was recommended to Knox County by the neighborhood that was concerned about the opening of the adult superstore on Lovell Road.

Remember, if the county's charter is held to be unconstitutional -- as I believe you have advocated in other threads on this site -- the county could be held liable for huge attorneys fees and damanges, just like the city of Knoxville, which is about to have to pay up in the Fantasy Video case -- so it pays to hire an expert (the city brought Bergthold in too late.)

Number9's picture

The Weaver ruling is a

The Weaver ruling is a time-bomb for Knox County. Ragsdale's request for a 180 stay and his committee to resolve the supposed deficiencies are a band-aid on a bleeding artery.

This will not stop the many law suits that we the people will have to pay for. A stay is not the remedy needed. Weaver’s ruling must be overturned for the welfare of the people.

Knox Vol JJ's picture

Interesting

 

 Weaver’s ruling must be overturned for the welfare of the people.

 Rule of law shouldn't apply here, is that what I'm hearing? If the charter was not valid from the start then nothing which occurred under its banner has been lawful. Now for any and all that say that this is going to cause a ton of lawsuits, they are probably right but does that change the fact that the charter was invalid--NO. Think along the lines of the warrantless wiretapping program, is it legal--NO. Now you have some Republicans saying the law should be changed to make it legal but that doesn't change the fact that it is currently illegal. Knox County's charter is currently illegal, no change to the charter alters that fact. No "do over" will fix this.

"No party has done so much for so few who need so little.” -Elliot Spitzer on the Republican Party

Car Guy's picture

porn shop coming to a county neighborhood near you?

 Mike Moyers said in today's News Sentinel:

"I'm not conceding that it is invalid," Moyers said of both the charter and the ordinance. "But I think there are serious questions. I'm not going to pretend. I really and truly believe ... it would be hard to sustain the validity of that ordinance if we are not a charter county."

Unlike most other county ordinances drafted to mirror state law, the rule on adult bookstores was a more homemade law crafted almost entirely without reference to any state law, Moyers explained. "

 

So if there isn't a charter, there isn't an ordinance regulating these businesses.  If there's no ordinance regulating them, then these businesses can start opening up all over Knox County, such as Farragut, Halls, Hardin Valley, Solway and Carter.

I wonder if the 5 commissioners (Griess, Collins, Tindell, Jordan and Guthe) who sued to undo the Knox County charter thought of this? I wonder if the folks who live in the districts of these 5 commissioners now realize what may be coming down the road?

rikki's picture

U.S.?

Surely he meant the Tennessee Supreme Court. Except he is a federal judge. Good grief. Maybe the US Constitution is going to be tossed out because John Hancock signed in the wrong place, just like Ragsdale predicted.

Someone needs to be on the lookout for major land purchases by the Corrections Corp of America. 

Car Guy's picture

the troops

W needs to send in the national guard to restore a democracy to Knox County.

Don Jacobs's picture

For the full story

you'll need to go to

http://www.knoxnews.com/kns/local_news/article/0,1406,KNS_347_4791432,00.html

where ace reporters Scott Barker and Jamie Satterfield have nailed this puppy.

Hildegard's picture

I dunno about the ulterior

Deleted content - Moot point since you changed it from U.S. to State Supreme Court. Jarvis doesn't care what those guys think of him.

Oren Incandenza's picture

So what if he is?

I'd be extremely hesitant to assign an improper motive to Judge Jarvis's decision.  He's a fine judge and with life tenure he's truly independent, unlike our state court judges.  The federal rules allow him to certify questions to the state supreme court and this is an appropriate question for that court's review; he didn't just make up this procedure. 

But even if he is doing this to further his wife's ambitions, so what?  At this point, I'm prepared to embrace almost anything that ushers the cavalcade of incompetents out of the City-County Building.

Bbeanster's picture

Hey, I agree. If the Supreme

Hey, I agree. If the Supreme Court can hear this case and decide it pronto, I'm all for it. Can they review the Jordan case in this process?

I've been pig-biting mad about the Weaver decision for nearly two weeks now, and I take a backseat to no one (except maybe #9)in being pissed at these commissioners.

Since I'm not a lawyer and don't have to kiss judges' butts, I'm just saying that I've got a bridge to sell anybody who doesn't think Jarvis ain't pissed about his wife losing that race. But if he can get this thing solved, hooray for him!

Old Hickory's picture

Need to Understand Weaver's Decision is Correct

If I organize a corporation for Beanster and fail to record it with the secretary of state's office and fail to include a registered agent for service of process, the corporation is not valid, even if you've been running the business for 18 years and have paid taxes, made payroll, etc.  If it is not valid, it is not valid. 

Biggest problem with the local government is they want to operate in the gray areas, out of the ranges of black and white. Right and wrong.  Weaver's opinion is like turning the light on and watching the roaches run for cover, the local government is flawed in its organization and we need a simple form of government 7 commissioners, 7 school board members, across the board staff cuts, turning in all public cars (City has already done that) gas is $2.75 a gallon, no public funds except for public vehicles, fire and police protection, and an understanding that public service is not a lifestyle for the rich and famous, it is middle of the road public employment.  Nobody on the county's staff can earn six figures in private employment, why should we pay them that for their public employment.

The government that governs best does the least.  Put Knox County back on the traditional county government form and quit spending money on Senior Centers, the SuperChamber, industrial development in Blount County of all places, and get the local officials to quit grandstanding and do their job and after 2 terms go do something else.

Car Guy's picture

hey Old Hickory

Who are some of the legal experts you referenced in another thread that feel Weaver's decision won't be overturned?

rikki's picture

bad analogy

The corporate charter analogy doesn't work because the county is not owned by the mayor and commissioners. If it's owned at all, it's by the voters or by the state, neither of which is responsible for the defects. If an employee-owned corporation hired a law firm to draft their by-laws and register the corporation with the state and the lawyers made mistakes similar to what happened here, the firm would be sued for incompetence and neglect, but the corporation would not necessarily dissolve. They would get new attorneys and repair the damage.

Furthermore, an actual corporation requires certification from the state before it exists, but the enabling legislation regarding county charters says the charter is ratified when it wins majority approval from the voters. There is no analogous status with respect to a private corporation.

rikki's picture

p.s.

Using the analogy of an employee-owned corporation, Weaver's ruling was the equivalent of disbanded the union and handing the assets over to the negligent law firm.

Mark S's picture

Sorry, Old Hickory, I cannot agree

Sorry, Old Hickory, I cannot agree with your analogy.  What you have said about Bbeanster's corporation is unquestionably true.  I cannot agree, however, that the same principles apply to a form of government clearly voted in by the people of a county, and a private corporation established for the personal benefit of Ms. Beanster.

The main reason I cannot agree is Article I, Section 1, of the Tennessee Constitution, and the use that the Supreme Court of Tennessee made of that section in the Memphis term limits case.  The sections states, among other things, that  all power is inherent in the people and that the people have at all times an "unalienable and indefeasicle right to alter, reform, or abolish the government in such manner as they may think proper."  No such rights apply to private corporations.

The Supreme Court's rejoinder to the plaintiffs in the Memphis term limits case seems to me equally applicable to the Jordan case.  The Court stated:

Accepting the plaintiffs’ position in this case would require us to ignore the fundamental principle of self-government embodied in Article I, section 1.  This we are not willing to do.  

Will the same court be willing to ignore the clearly enacted intent of the people of Knox County because of the incompetence of Knox County's elected officials?  I hope not, and I cannot agree that they would be correct in doing so.  Neither can I agree that they would do so unless and until I see them do it.

It is entirely unclear to me why five term limited county commissioners, sworn to uphold the County Charter for (at a minimum) 8 years and in some cases for decades, have a right to bring a suit to declare the same County Charter invalid.  If anyone has an obligation to ensure that the Charter is valid, it would be these same elected officials.  They have failed us, each and every one.  Can they now be heard in a court of equity to say that the charter is invalid, for their own personal benefit?  Once again, I hope not.

Bbeanster's picture

Mark S, you just hit it out

Mark S, you just hit it out of the park.
It seems to me that the chancellor had an obligation to weigh the equities, as well as examine every i-dot and t-cross. And he didn't do that.

Johnny Ringo's picture

That argument was made

"It is entirely unclear to me why five term limited county commissioners, sworn to uphold the County Charter for (at a minimum) 8 years and in some cases for decades, have a right to bring a suit to declare the same County Charter invalid. If anyone has an obligation to ensure that the Charter is valid, it would be these same elected officials... Can they now be heard in a court of equity to say that the charter is invalid, for their own personal benefit?"

Mary Ann Stackhouse from Mike Moyers' office made exactly that argument to Chancellor Weaver in an attempt to get him to dismiss the Jordan case and uphold the Charter. It was ignored.

Mark S's picture

That argument was made

I'm glad it was made.

I still don't understand why it wasn't the end of the story.

Chancellor Weaver has not had any compunction about dismissing other litigants, trying to uphold the clearly ratified intent of the voters, for lack of standing. 

Old Hickory's picture

Let's Draft Madeline Rojero to Clean House on the Sixth Floor

How about a write in campaign featuring Madeline Rojero for County Mayor, "Lets Throw the Sixth Floor Out the Door".

Number9's picture

In order to do that Madeline

In order to do that Madeline would have to fill out a form as a write-in candidate. The deadline is 5:00 PM Friday June 23rd at the Election Commission office.

I hope you can convince her to do that. She has my vote.

Oren Incandenza's picture

Amen to that.

She could get at least 40% of the vote on righteous indignation alone. 

"It's Pit Pat! The magical, pansexual, non-threatening spokesthing!" -- Mr. Show

What is Next?'s picture

State Auditors and Knox County Charter

One thing I have checked on and I find this truly amazing that no one ever caught this.

The state auditors audit the Knox County books on a yearly basis.  I would think that someone in the past 16 years would have noticed that the Charter was not certified by the State of Tennessee.  The document should have a stamp or some kind of mark denoting that is certified under Tennessee.  I wonder why this was never done or better yet, why no one noticed.

 Interesting question - who has the answer?

Number9's picture

The state auditors audit the

The state auditors audit the Knox County books on a yearly basis. I would think that someone in the past 16 years would have noticed that the Charter was not certified by the State of Tennessee. The document should have a stamp or some kind of mark denoting that is certified under Tennessee. I wonder why this was never done or better yet, why no one noticed.

Betty Bean has a very interesting article in today's Shopper.

(link...)

Check this part out:

It turns out that Shelby County may share another problem with Knox. The staff at the attorney general’s office hasn’t been able to find the certified copy of the amended Shelby County charter, either. Kuhn doesn’t think that should matter.

Maybe, perhaps, just possibly, the problem is in Nashville in the Secretary of State office? Shouldn't someone in Nashville be looking through their file cabinets?

More important parts from Betty's article:

Weaver based his decision on three charter deficiencies: that the duties of four elected offices were not adequately defined; that the charter was not properly registered with the secretary of state and that the language of the term limits amendment was too vague.

Although a Knox County chancellor’s decision isn’t binding on Shelby County, Kuhn concedes that there are many similarities between the two charters, and that the fundamental flaw Weaver cited – omitting the four job descriptions – applies to the Shelby charter as well.

Kuhn says those job descriptions were not required.

“Those four offices – we did not include those offices in our language, either. Under state law, we felt we could not affect those offices at all, and we did not feel we had to include them,” Kuhn said. “We had 11 members of our charter commission – we had eight or nine attorneys, including a couple county attorneys, and we felt like we did a very thorough job.”

Paul Witt's picture

Actually, I think the last

Actually, I think the last paragraph pretty well summarizes what I thought when Weaver ruled.

“When a municipality forms a charter, they might miss a technical aspect, but there’s plenty of law that not complying with a technical element does not defeat the legal authority of the entity to continue. Most of the law on charters is city law, but it certainly deals with charters.”

So if he's right then what exactly is the problem with our charter?

Number9's picture

“When a municipality forms

“When a municipality forms a charter, they might miss a technical aspect, but there’s plenty of law that not complying with a technical element does not defeat the legal authority of the entity to continue. Most of the law on charters is city law, but it certainly deals with charters.”

Bingo.

The issue was severability. You do not throw out the baby with the bath water.

Richard Beeler has made more sense than Weaver on every level.

Mark S. observed:

Article I, Section 1, of the Tennessee Constitution, and the use that the Supreme Court of Tennessee made of that section in the Memphis term limits case. The sections states, among other things, that all power is inherent in the people and that the people have at all times an "unalienable and indefeasicle right to alter, reform, or abolish the government in such manner as they may think proper."

Factchecker's picture

Madeline would also

Madeline Rogero would also need to pledge Rocky Top as her favorite song, the Bible as her favorite band --oh yeah--book, and Ronald Reagan as her favorite hero (besides Jesus). 

_________________________________

Never has the left been so right.

Oren Incandenza's picture

Follow-up

"Can they review the Jordan case in this process?"

--An interesting question.  Effectively, they'll have to review the Jordan decision, but it gets before the court thanks to the legal equivalent of a triple-bank billiards shot.  As I understand it, the (sensible, creative, aggressive) argument in the adult ordinance case is that the ordinance is invalid for lots of reasons, including because the charter has been ruled invalid.  The charter's validity is a pure question of state law, which is why Judge Jarvis can -- and possible ulterior motives aside, was right to -- certify it to the Tennessee Supreme Court.  So the Jordan case gets there indirectly; if Weaver's right, then the adult ordinance is no good, and if Weaver's in error then the adult ordinance clears that hurdle, although I believe there are other arguments against its validity.  I don't know how inclined the TSC will be to drill down into the evidence presented in Jordan, especially since the record in Jordan may or may not be provided to them in the adult ordinance case.

"Pig-biting mad"

 Now that's a good turn of phrase.

Old Hickory's picture

It's Hard to Feel Sorry for Moyers

As the chief legal mind within the county government, in my opinion, he has ultimate responsibility for seeing the actions of the county government are in compliance with a multitude of state and federal laws, rules, and regulations.  It is no small task, however, it appears that there was a wholesale absense of any ongoing analysis of the validity of the charter, particularly in light of a number of challenges regarding term limits and the predisposition to have the State Attorney General and other courts addressing term limits guide or pacify the concerns the law director should have had regarding the validity of matters wholly germane to Knox County.  The political nature of the law directors position prevented him from taking the logical position that term limits apply to everybody elected in Knox County, not just a select body of 19 commissioners.  When a community has 5 commissioners that file suit to invalidate the county's charter and try to defeat the term limits bar, there are much deeper problems in the community that just the validity of the charter, you have a major cultural problem regarding holding public office and the mere notion that a commissioner would want to "hang around" another term should be everybody's worst nightmare regarding potential payoffs, bribes, insides deals, backroom agreements, and a complete evisceration of the role of acting for the good of the community.

Mark S's picture

Old Hickory, I could not agree more

Old Hickory, I could not agree more with your comment that this whole situation reflects a major cultural problem regarding holding office in Knox County.  Well said.

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