Sun
Jun 18 2006
02:55 pm

It is interesting to read the different viewpoints between optimists and skeptics concerning the Weavergate conundrum. Local optimists believe Knox County government is made up of good people doing their best and they can disagree and still be friends. Local skeptics believe Knox County government is controlled by a very few un-elected people and everything that happens, happens for a reason.

Before the Tennessee Supreme Court issued the Bailey ruling that term limits apply in Shelby County, term limits were ignored in Knox County because of a 1994 opinion from the State Attorney General that State Constitutional offices could not be term limited even though Knox County voters clearly voted in a 1994 referendum on term limits that clearly stated that all office holders in Knox County government would be held to a maximum of two terms.

One of the problems is that the English language can be imprecise. Another problem is that no matter how well a law, Charter, or referendum is worded there is always a lawyer somewhere that can challenge it using some literal absolute interpretation. Optimists may say that Chancellor John F. Weaver was doing his job and had no choice but to enforce the laws of the State of Tennessee. Skeptics may say that the fix was in from the day the Supreme Court ruled in the Bailey decision to enforce term limits.

The outcry from the public is matched by the outrage in the press. Editorials from the Knoxville News Sentinel and The Metropulse have chastised the Weaver ruling as unfortunate, outrageous, and egregious. The most telling opinion is from the Number One optimist Mayor Mike Ragsdale who said, “This would be the same as a federal judge ruling that the U.S. Constitution is invalid simply because Jefferson or Adams signed on the wrong line or that Benjamin Franklin didn’t deliver the right copy to President Washington.”

One of the most significant sources on this matter has been Richard Beeler the former Knox County Law Director who took office in 1990 and was Secretary on the Charter Commission of 1988. His appearance on the Lloyd Daughtery Show and on WBIR’s Inside Tennessee have provided more information than almost any other source. Mr. Beeler defends John F. Weaver as a good judge and astute legal scholar but disagrees with his ruling. Beeler does not seem to fit in either the optimist or skeptic camps. His point is that the Charter had no problem in the fact that the Constitutional offices were not defined. They were not defined in the Shelby Charter either. There are defined in the State Constitution.

Beeler’s other main point is that the Charter became effective upon being ratified by the people and that the return receipt from the Secretary of State is an overblown issue.

But here is where it gets interesting. Beeler notes that the term limits referendum was brought forth by a regular citizen and was not correctly written according to State law. Stop right here, this is the important part. The Charter was never the problem, the term limits referendum was the problem. The State Attorney agreed that the term limits referendum was incorrectly worded when he gave his opinion in 1994 that the Constitutional offices were not affected by referendum. Since 1994 Knox County Commissioners have used that opinion to disregard the will of the people on term limits.

The question people will ask is why did Weaver muse out loud in court that the Charter might not be valid? Betty Bean was far ahead of the curve on this when she wrote about the problem of obiter dicta.

Optimist may say that Weaver is just a very analytical judge who made this ruling in only a legal interpretation of the law. Skeptics may say there is an end game. If the skeptics are right, what is the end game?

Old Hickory's picture

Schmid Appeals Ruling, Weaver's Decision Expected to Be Affirmed

County Commissioner John Schmid, who's on summer vacation from school, in an effort to do something even if it's wrong, filed a notice of appeal, pushing Chancellor Weaver's ruling right on up the judicial chain, pushing the effort's to salvage the county charter into the toilet.  Most legal scholars expect the decision invalidating the county's charter to be upheld on appeal as evidenced by County Mayor (soon to be County Executive) Ragsdale's efforts to garner more time to "fix" the invalid charter.  While the efforts to fix the charter were a noble endeavor, Schmid's latest stunt, supercedes his initial Moncier moment, which is virtually assure the invalidity of the charter and minimize any appeal in front of the Tennessee Supreme Court.  Stating he didn't like what he heard at the commission meeting today, Schmid undertook to bring more agenda minded attorney's into the fray, without fear of paying legal fees or incurring indebtedness for their efforts in this case.

Meanwhile, the courhouse is expected to become a have for more and more lawsuits based upon the invalidity of the charter.  Already two (2) cases have been filed regarding the validity of the appointment of JK Davis to the Knox County General Sessions Court and the pending run off in a local school board race.

A petition is now circulating to have Knox County surrender its authoritative status from the State of Tennessee and be considered part of Blount County and added to the geopraphical boundary of Blount County.  In a related development, the Blount County Commission has indicated to Governor Bredesen that they don't want any of Knox County and have petitioned the folks in Sevier County to see if they would take Knox County.  The Department of Children's Services has fielded a number of Complaints regarding foster homes and potentially adoptable children, the most frequently mentioned of which is a very immature, slow, and severlly retarded child, needing a large amount of remedial services and special needs classes, going by the name of Knox County.

Car Guy's picture

Old Hickory said

"Most legal scholars expect the decision invalidating the county's charter to be upheld on appeal. . . ."

Who are some of the legal scholars?

Bbeanster's picture

Dewey Cheatem and Howe.

Dewey Cheatem and Howe.

Number9's picture

Dewey Cheatem and

Dewey Cheatem and Howe.

Click and clack approved.

rikki's picture

really?

Most legal scholars expect the decision invalidating the county's charter to be upheld on appeal

A legal scholar I ain't, but you've got this exactly backwards. There is no way the same Supreme Court that unanimously supported the opinion Chief Justice Barker wrote in the Bailey case will uphold Weaver's ruling. Schmid's appeal is the best hope for having the will of Knox County voters upheld. Ragsdale's effort to remedy the charter is a distant second.

Those trying to undermine term limits have shot their wad with Weaver's ruling. It's all delay tactics and prayers that higher courts won't have the courage to call for a special election and/or appointed replacements for them from here on out. If anything, the Ragsdale solution is part of their effort to get past the August vote without being definitively removed from office.

Weaver disregarded statutory construction. Do your legal scholars expect the Court of Appeals and Supreme Court to do the same?

Johnny Ringo's picture

As pointed out earlier by

As pointed out earlier by Number9 in another post, the exact same statutes have been looked at by the State Attorney General, the Shelby County Chancellor, the Western Section Court of Appeals and the Tennessee Supreme Court, and all of them came to different conclusions about what that language meant. So there really is no telling what the Supreme Court will do with this case, if they take it.

The Court could:

a) Uphold the Charter, but strike down the limits provision as overbroad in attempting to apply term limits to officials that are not "created" by the Charter;

b) Uphold the Charter and hold that term limits apply to "all elected County officials";

c) Uphold the Charter, but apply term limits only to those offices arguably "created" by the Charter, including the Commission, the Mayor, the Law Director and the School Board;

d) Uphold the Charter and apply term limits to the above-named list of officials except for the School Board, which the Court might find is outside the scope of term limits for other reaons; or

e) Uphold Chancellor Weaver's ruling, depriving Knox County of a Charter, leading to 1001 lawsuits over every aspect of County government for the past 16 years and guarenteeing no return to charter government, or term limits, until 2010 at the earliest.

In short, its a crapshoot. There is no "most likely" outcome. And it will take time. The Supreme Court "expedited" the appeal in Bailey because of the upcoming election, and it still took about 4 months from the time they accepted the case for appeal until it was decided. The Court will probably consider that at this point there is no way it can affect the upcoming election, so where's the emergency? From the Court's point of view I would guess, whether someone is elected in violation of term limits and serves 6 months or two years is of little moment. Thus, given where we are, its use of "reach down" authority, particularly in light of its refusal to do so in Bailey, is less, rather than more likely.

So we could have a process that first must travel through the Court of Appeals, taking several months to a year, and then perhaps to the Supreme Court, taking additional months to a year, and at the end of the day we have no real clue what the Court will do.

Ragsdale's solution allowed the fate of Knox County to stay in the voter's hands. Sure the Charter Committee might have done something egregious to term limits. In that case, the voters could have voted them down, since all amendments to the Charter must be approved by referendum. Now we are back where we started, with Knox County's fate placed in the hands of the judiciary. I wish I had your confidence in the outcome, Rikki.

rikki's picture

My confidence is mainly with

My confidence is mainly with the Tennessee Supreme Court. Their reading of the charter provisions in the Constitution (the enabling legislation) is quite expansive, and I believe they will honor both the will of the voters and statutory construction. I do still worry that none of the litigants before them will argue on behalf of voters and citizens.

You are correct about the timing issues. County citizens are pretty much screwed on that front, with directly voting incumbents out of office being their only recourse. Of course, that has always been an option, apparently one that even voters have no confidence in their ability to exercise.

Here are some concerns relating to the Ragsdale solution: what if one or more of the commissioners on the review committee loses in August and gets replaced before the committee finishes its work? Probably not a big deal, but the deficiencies with the charter aren't really a big deal either. What if voters reject the amendments, either because the committee comes up with something unacceptable or because, well, they are voters, and they are subject to getting confused or duped? What if the review committee does a great job and voters approve their amendments -- won't we still need a court ruling to figure out what to do with the incumbents? 

Johnny Ringo's picture

All good questions

The most interesting thing about all of this mess is the number of questions that can be raised that have no real answers. I don't think it will matter if incumbants on the Charter Review Commission lose, because if the goal is to get ballot questions on the November ballot, then the Commission will have to be finished with its work well before September 1st, when any new Commissioners would take office. If the voters reject the changes, and Weaver stays the course and is not reversed by the appellate courts, then we have an invalid charter with all that implies. I don't have a good answer for your last question - it depends on what if anything the Review Committee does with regard to term limits.

Old Hickory's picture

There's a reason only 2 counties tried Home Rule

Shelby County went that way to attempt to insulate East Shelby County from the socio-economic concerns regarding the City of Memphis and the City of Memphis School System.

Knox County went that way when Howard Baker's law firm sold them a bill of goods and charged them $350,000 to set up a Home Fool form of government which is now invalid, further enhancing the leadership void which is very pronounced here in Knox County.

Home Rule is a very complicated and time consuming form of government, which to work and work well, requires a lot less than 19 commissioners and more frequent meetings that 12 per year.  Our set up doesn't get it and the sooner we acknowledge the set up is wrong, regardless of term limit impact, the better off we will be in establishing a form of government that works well.

Number9's picture

Our set up doesn't get it

Our set up doesn't get it and the sooner we acknowledge the set up is wrong, regardless of term limit impact, the better off we will be in establishing a form of government that works well.

I do not understand how having to use private acts in the Tennessee State legislature is a good thing compared to being able to write our own Knox County ordinances.

Could you expand on your opinion why Home Rule is not the superior form of local government?

I don't get it.

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