As we have pointed out previously, in 1996, then-Shelby County Commissioner Mark Norris argued that Memphians should not have the right to vote in the election of Shelby County Schools board members.
In a meeting of the Board of Commissioners Education Committee on April 26, 1996, he said: “The people who live in the district served will be the ones determining their fate and the fate of their children. It would otherwise simply be irrational, not to mention unconstitutional.”
He was right then, and his opinion is still right today: It is the people (Memphians) who have the right to determine the fate of their school district.
Here’s the complete transcript of that meeting:
April 26, 1996
Shelby County Board of Commissioners Committee #6 – EDUCATION
2:00 p.m.
PRESENT: Mayor Rout
Dr. House (Mr. Anderson ill/absent)
Buck Wellford
Patterson
Bill Gibbons
Julian Bolton
Tommy Hart
Mark Norris
Donnie Wilson, County Attorney
Brian Kuhn, County Attorney
Mr. Lee Winchester, Attorney
Introduction of elected officials:
Brent Taylor, city
Barbara Prescott, MCS
Bill Todd, MCS
Jim Brown, MCS
Laura Jobe, MCS
John Bobango, MCS
Rubye Dobbins, SCS
Karen Hill, SCS
Carolyne Bobo, SCS
Cheryl Hall, SCS
Gene Fletcher, Mayor of Lakeland
Bobby Flaherty, Mayor of Bartlett
Sharon Goldsworthy, Mayor of Germantown
George Harvell, Mayor of Millington
Tom Leatherwood, State Senate
Homer Bunker, SCS
Barbara Swearingen-Holt, city
GIBBONS: At this point I want to thank you for being here at the Education & Libraries Committee. We have one matter before us – Resolution adopting district plan for the election of SCS Board members and directing the county attorney to take certain actions. At this time what I’d like to do is welcome any of you who do not have a handout for this meeting to get up and get them. They are at the end of the table. We have maps indicating where the district lines are, as well as a breakdown of precincts, districts. There are also some pie charts there from the schools. Ok, I’ll make the assumption that everyone has before him or her the basic information. Procedurally this is how we will approach this. I will entertain a motion on the resolutions before committee. I will then open it up for comments from anyone in the audience. I will ask if you are in the audience to simply raise your hand and I will recognize you. I ask that you state your full name for the record. Staff needs that information. After we have heard comments from the audience, I will entertain comments from the commission, prior to voting on any motion pending at that point. At this time I will entertain motions regarding the resolution.
NORRIS: Mr. Chairman, I move adoption of the resolution.
2nd
GIBBONS: Motion has been made for adoption of the resolution. 2nd. Does anyone wish to make any comments on the resolution before us?
FLAHERTY: I’m Bobby Flaherty, mayor of the City of Bartlett. On behalf of the county suburban mayors we support this resolution. As you know, we tried to implement our plan that addressed many other issues such as funding, however we were not able to get a lot of interest. So we do support this plan, this resolution.
GIBBONS: Any other comments? I would call on members of the commission to make any comments.
WELLFORD: There have been many of us working on this project for a while. I would like to point out that contrary to suggestions that were made by those who were for a more ambitious plan in the state legislature, contrary to some suggestions by state legislatures or county executives or mayors. Especially Commissioner Norris has been on top of this from the beginning, and has been in touch with the legislature and has done everything possible to preserve what is good about our county school system, this being the last of a series of efforts to work out problems. I especially commend Commissioner Norris for sticking with it throughout even when criticized by both sides in this controversy. I think this is a reasonable plan and I encourage you to vote for it.
BAILEY: I’ve got a number of questions I want to raise, starting with what does the legislation, and I’ll address this to the county attorney – what does the more recent legislation on our reapportionment require in term of districts?
WILSON: It is the opinion of this office that it requires 7 districts consistent with the Private Act to establish the incorporated and pursuant to the Charter. The Charter did not change anything in the previous legislation done by the SC School Board, which it had 7 members.
BAILEY: Now we’ve done district reapportionment by Charter or by the most recent legislative act?
WILSON: Per general state law.
BAILEY: And state law as I understand it requires that any proposed or any plan out of necessity would include everyone within the confines of a given county, is that right?
WILSON: That has been the interpretation of Supreme Court cases that dealt with the issue and that is based on interpretation of the State Supreme Court in terms of the interpretation that the SC School Board members are county officers and they should be elected county wise based on state law.
BAILEY: And of course any district plan that would be drawn that would exclude city residents from participating, which is proposed Plan 10 does, would be violative of state law, wouldn’t it?
WILSON: As interpreted by state courts, yes. Not by federal courts.
BAILEY: So the bottom line is that according to valid standing state Supreme Court decisions we would be acting unconstitutional in approving a plan that excludes city residents, wouldn’t it?
WILSON: Under state law but not under federal law.
BAILEY: Well, but the state law has not been declared invalid has it?
WILSON: Not in terms of the issue as to whether or not county school board members are county officers and should be elected countywide, no.
BAILEY: So state law is standing just as strong as the biggest Oak tree at Shelby Farms, isn’t it?
WILSON: Yes sir. That’s also true of state statutes that have been fully contrary to other issues that have affected other citizens and their rights.
BAILEY: It seems to me that there’s not underway any litigation by the county to declare the state Supreme Court law invalid so that we can maneuver this plan through is there?
WILSON: We have a lawsuit on appeal that challenges this law.
BAILEY: I know but there is no pending litigation which addresses the subject matter by which we are to participate or act on today is there?
WILSON: I believe the case on appeal has questions about the constitutionality of that statute; this particular no because it has not been acted on.
BAILEY: There are no challenges to the state Supreme Court decision at this time is there?
WILSON: No but this is not grounded on state law, it’s on federal law.
BAILEY: Well I understood you to say, and I’m just asking for your legal opinion on this, you’re not in the politics of it. As I understand it we are governed by state law unless state law is declared unconstitutional. Am I correct?
WILSON: Well we are also governed by the U.S. Constitution.
BAILEY: I know we’re governed by the U.S. Constitution, but I’m saying on this subject matter in terms of school apportionment, that’s the subject matter within the province of the state, unless you are dealing with some constitutional infirmatives.
WILSON: That’s the point of the resolution which includes an elective to follow court action which would probably be in the form of Declaratory Judgment in a court to interpret whether or not this particular Redistricting Plan is consistent with the U.S. Constitution, not just the state constitution.
BAILEY: But is it anywhere in jurisprudence, is it anywhere where all the Supreme Court decisions have been challenged and declared unconstitutional as far as what they say about this matter?
WILSON: The matter has not been before a legal forum, a federal forum in this case to determine whether or not it’s unconstitutional.
BAILEY: I know but what I’m saying is here we are in 1996 and these laws have been on the books many years. Our state Supreme Court decisions have always governed. Do you know of any other jurisdiction that is tracking the state Supreme Court decisions?
WILSON: Yes – Alabama.
BAILEY: I’m talking about jurisdictions within this state.
WILSON: The county case vs. the authority of the state law that requires county wide elections. The county case did not find a solution but it did find that the constitution does not require Coffee County and Tullahoma, which is the city involved, did not require them to include them within the confines of having an election for the folks in the rural county residents.
BAILEY: I’ve always been from the school group of law that if you’ve got some statutes that you think are invalid and unconstitutional it seems to me that … has the Attorney General ruled on this? Opined on this?
WILSON: Not on this particular plan.
BAILEY: Have we sought a state Attorney General’s opinion?
WILSON: No we have not.
BAILEY: Why have we not?
WILSON: I haven’t been requested to.
BAILEY: May I put that as a formal request here today to have that done?
As I understand it anytime that you want to contest valid state legislation, it seems to me that’s what we’re doing by challenging, with fist in our face about state statute (?), now it seems to me the appropriate way of doing that is for us to invoke the statutory federal court jurisdiction, is that correct? And we’re not doing that are we?
WILSON: In the resolution it directs us to seek declaratory judgment or clarification from the court whether or not this is a violation of the U.S. Constitution.
BAILEY: I understand that but what I’m saying is right now, the proper way of challenging state statute is to invoke the federal statutory court jurisdiction, a 3-judge panel, is that correct?
WILSON: Well, the process is that if indeed this resolution passes probably by declaratory judgment (?).
BAILEY: If we want to properly attack a state statute, don’t we have to go, have to invoke the statutory jurisdiction of federal courts, that is to sue the attorney general and to sue the governor, and to have a statutory court impound by the federal district courts?
WILSON: We would file a lawsuit in a U.S. District court.
BAILEY: Well, I’m just concerned. I mean, and it’s your opinion then that if we really want to properly attack a state statute, then we shouldn’t just violate the law in the face of what we’re bound by state law. Because we are bound by state law. Is that correct?
WILSON: Until they declare it unconstitutional.
BAILEY: My question is, are we not bound by state law right now?
WILSON: Yes we are but we are always bound by the U.S. Constitution which is included in your oath as commissioner that you swore to firmly uphold the U.S. constitution.
BAILEY: Are you telling this commission to violate the state law …
WILSON: No I am not. There is a real and substantial argument that can be made in this particular case that our dissolution of our district *** can result in the dilution in the Shelby County School District. That’s all I’m saying.
BAILEY: We are doing two things here. We are taking executive action for overt misconduct. And as I understand the law if state law is in place, then the proper way to contest the state legislation as opposed to committing an act in violation and then contesting it, is that correct? Is that what we would be doing?
WILSON: This resolution also includes a directive for this office to seek declaratory judgment as to constitutionality of the juditional client (?).
BAILEY: We are asking to on Monday to commit an act.
WILSON: Commissioner, there are federal cases that are consistent that inclusion would involve state law in particular to our situation. We are not going out on a limb. The Coffee County case had language based on other cases that I alluded to in other circuits that dealt with the issue of dilution. These are federal cases which are real and substantial decisions.
BAILEY: You have a proper way of attacking the state law and that’s by invocation of the federal statutory panel, is that not correct?
WILSON: The decision that would be following would probably be a lawsuit. I think if the courts want to convene a 3-judge panel it would be filed in federal court.
BAILEY: And before the state law is invalidated, a federal court has to invalidate it, is that correct?
WILSON: That’s right.
BAILEY: So state law is invalid right now, just like running a traffic controlled state law? Is that correct?
WILSON: That’s correct.
BAILEY: Any other criminal code in state law is valid until it’s declared invalid. Is that correct?
WILSON: Yes, that’s correct.
BAILEY: And we’re ultimately presumptious to say that we can go ahead and violate state law under the assumption that we’re so correct in our opinion about state law being unconstitutional that we’re gambling. I mean that’s what we’re doing aren’t we?
WILSON: Well the state law is clear. The case of *** (Vilov and Esponzi?) is insistent that state law requires the election of county school board members be countywide.
BAILEY: We would be acting unlawfully based upon state law. We would be violating state law.
(arguing – cannot understand)
BAILEY: Mr. Chairman can I get an answer regarding state law?
WILSON: I answered that commissioner.
BAILEY: So we violate state law? Is that correct?
WILSON: Commissioner, ***
BAILEY: And that’s my very point, Mr. Chairman. This is a good example. Here we are – we have an opinion that state law controls until it’s declared unconstitutional and here we are, urged to commit, to violate the law, the state law, to proceed ahead, staked on our own understanding (?) and here we are lawmakers. And we’re asked to ignore laws we don’t like, hoping that they’ll get declared unconstitutional, as if there is some great urgency in the first place. And it seems to me we are setting a very poor example by *** state law. Where do you draw the line? What state law do you ***? Do we draw it with redistricting? Do we draw it with DUIs? Do we draw it with other criminal offenses, behavior, conduct? I mean where do we draw the line? You can’t pick and choose laws. This isn’t the civil disobedient days. But here we are. We’re asked to commit an act to engage in conduct that is clearly volative of state law and it seems to me that’s reprehensible. Especially when there is no call for it, there’s no real urgency, while we take procedure to honor these dual systems, no rights are being injured for us to continue on as we are until we get a ruling from the courts. It seems to me that there’s a great danger in this when we start picking and choosing state laws that we’ve got to obey and respect as opposed to those ***. And I think that we’re setting a poor example for the people in this community when we talk about obeying the laws and even our lawmaker running in a *** with the city, and I think that’s dead wrong. I think that’s reprehensible. There’s no real urgency for it. I think it *** pandering for those who have irrational fears about our school systems, and it seems to me that we ought to put a halt to this nonsense. And if we want to have our day in court, the courts are accessible. It’s not like it’s a situation that the courts are not accessible. We’re *** court decisions, is that correct? So why don’t we be obedient to the state law until such time as it’s invalidated if it is. We may be dead wrong. And I would strongly urge us not to look headlong into this thing, and it seems to me here again that there is no great urgency about this at all. Except the politics of it. Here we have a plan. A plan that would exclude all of the taxpayers who contribute to the welfare of the county at large and the county school board in particular. Here we have a plan that excludes all of them from participating in the political process, and it seems to me that that is dead wrong. Dead wrong. And it’s very divisive. What it does is *** is drawing the line between suburban residents and urban residents. That’s what it’s doing. We’re promoting and fostering further devisiveness between those two residents and I think it’s poor leadership on our part to further conduct ourselves in this way, violate the state law and come up with a plan that would dare to, by its objective, exclude all those residents of Memphis. It doesn’t exclude those in Millington, or Collierville, or Germantown, but yet you want to exclude those within Memphis. It seems to me, Mr. Chairman, that’s wrong, and I don’t want to be party to it, and I’m going to fight with every ounce of strength that I can muster against it.
WILSON: I’d like to make a statement. *** principle of American constitutional law that federal court says that *** to transcend the limits imposed by the U.S. constitution. No act by the state legislature which is repugnant to the constitution of the U.S. can be of any validity. A state law even if passed and exercised in the state acknowledged powers must yield to the supremacy of the federal constitution. Moreover, if a state constitution provision is *** a provision in state constitution *** as consistent with the rights under the federal constitution. By chairman *** conflict with the constitution or general knowledge of the State of Tennessee or County Charter of forgery ***. *** Therefore the following question is posed – Can a reasonable real and substantial argument be made that the inclusion of all of the districts of the Shelby county school board members result in an unconstitutional dilution of any district votes? The answer is yes. The basis for the foregoing is not grounded solely on the Coffee County case or another federal case ***. For example, *** plaintiffs brought action charging that the constitutionality of the North Carolina statute under which residents living within the geographic jurisdiction of a city school board were permitted to vote for the election of county board members. The Court of Appeals held that the inclusion of votes of the city residents resulted in dilution of votes of county residents. In a series of *** cases the Alabama statute requiring a countywide election, the court held *** that the inclusion of city of Tuscaloosa for example who had a population of 56% of the total county population resulted in the dilution of the voters (?) of the board of the county electorates. In Holden County (?) the court also held that based upon Alabama’s state requirement of countywide election to include city residents diluted the votes of county school board residents. In Dockett vs. Coffee County the court upheld that the inclusion of the city of Tullahoma residents in the election for the rural Coffee County School Board did not constitute dilution. It stated that the U.S. Constitution does not require Tennessee and Coffee County to include *** but it may as long as it does not unconstitutionally dilute the voters of the rural county of Coffee residents. In short, in Docket vs. Coffee County the final persuasion and conclusion of the court *** that the benchmark would determine whether inclusion of our district voters are constitutionally dilutes the resident votes as well as the decision in terms of *** if it is irrational. To show that it is not irrational you must show that the city voters have substantial interest in the county school board election. To determine whether or not there is a substantial interest you must look at number 5, which includes the ***, voter strength of the non-resident ***, constitutional concerns that county residents would have little or no control over their own school board if the out of district voters have a substantial interest, *** possible crossovers, and the number of joint ***. I believe that it would be up to the federal courts, and the courts would have the *** where appropriate, and this apparently is an instance where there could be a strong and reasonable argument could be made that they could result in *** in all honesty. That is something that the federal court should decide. I can analyze this as something that the court would have to look at all factors that I have ***.
BAILEY: Well why don’t we wait and let the courts decide before we hide our heads in the sand, that it is clearly in violation of state law.
NORRIS: Commissioner Bailey I have great respect for you, your opinions and feelings as a commissioner, as well as your skills as an attorney. One of the most effective sound bites might be in violation of state law but let me assure you that before signing on as co-sponsor of this resolution, I determined that it was NOT in violation of state law, based upon consultation with county attorney and with the attorney for the Shelby County School Board. Now, what I think needs to be clarified is this – I received late last night a fax a letter by chairman in which he states with great emotion that this districting plan is in direct conflict with the clear language of the Education Improvement Act. That is the legislation that we are dealing with here. Nowhere in that state Act is there the requirement that the jurisdiction be countywide; in fact it’s silent. It does not tell you how to draw the district. The state law to which Mr. Wilson alludes based on my consultations with him earlier were common law decisions under the state constitution that were adopted prior to the enactment of the Education Improvement Act. What has changed here, Commissioner Bailey, is the Education Improvement Act itself. It has changed the law in Tennessee and as to how the districts must be drawn it is silent. Now, we learned in the Coffee County case at the end of 1995 – I think I came into possession of it in January of this year – that indeed there are different factors that have to be weighed in how one complies with the Education Improvement Act in Tennessee. The test that was derived in Coffee County vis a vis the city of Tullahoma would apply here in Shelby County I’m quite certain would work the result different than that that was worked over in Coffee County, to wit, because of the voter dilution, because of the population and demographics here in Shelby County. There is no way that we could draw county wide districts without so effectively diluting others’ rights as to be unconstitutional. Even the State of Tennessee would not have us do that. I think that is clear and all of us in taking our oaths of office to uphold both the general laws of the State of Tennessee and the United State Constitution. Coffee County makes it clear that we are doing that. We can serve both masters. We can do it fairly. And we can also do it in a way that is rational to the concerns of the administration of both school systems. The people who live in the district served will be the ones determining their fate and the fate of their children. It would otherwise simply be irrational, not to mention unconstitutional. Mr. Chairman, I would suggest that we might refer to Mr. Lee Winchester, who is here in the audience. He has probably put as much research into this issue as anyone. I appreciated Commissioner Wellford’s comments, but I would say it’s been a team effort. Many people have done extensive research into this complex area. It is an emotional area, but it shouldn’t be political and I really hope that we can really stay above that and keep it from that because what is at stake here is the best interests of our children and their educations. I would yield to Mr. Winchester to correct me if I’m wrong in my interpretations because the last thing any of us want to do is something that is “illegal”. I feel confident that this is not in violation of state law.
GIBBONS: Mr. Winchester, Commissioner Norris has yielded to you. I had already given everyone in the audience an opportunity to speak. In this case a commissioner has specifically yielded to you to speak, so I’m going to allow you to speak, so proceed.
WINCHESTER: Chairman very briefly the state heard your county attorney, Mr. Wilson, expound to various aspects of the legal ramifications of this, as well as Commission Norris and I’m in court with those. There is one thing that Mr. Wilson stated with which I take some slight issue and that is his statement that the, and I may be mis-interpreting *** in Mr. Wilson’s statement, and that is the Educational Improvement Act of 1991, the legislation is underway as this districting plan is being prepared, calls for a county wide vote. It simply makes the statement that school boards will be selected by the people. The Sixth Circuit Court of Appeals on a case which is now final and which has not been overruled, which is the United States court system under which the Shelby County jurisdiction resides has spoken with vitality identifying the people, and I use that language as being, and this was in the Duncan case which is now a final decision, as being the people in the geo political entity which is to be governed by the district.
WILSON: Mr. Winchester I would like to clarify something. As I quoted the Supreme Court case as being *** as determining the Tennessee Constitution as requiring county offices be elected county wide. As I recall that’s what I said. Not the Education Improvement. The Education Improvement Act does not require countywide election. As I mentioned *** and it determined the constitution had required a countywide election as elected countywide. I want the record to clarify that and my position.
WINCHESTER: I stand corrected and agree with Mr. Wilson with reference to this statement and I now understand what he said. Let me make one point with reference to the change over taken place as result of the 1991 Act dealing with that common law aspect. Number 1, you had the Duncan v. Coffee County case that deals specifically with the issues, the identification (indemnification?) of the geo political entity. Number 2, you have in that Educational Improvement Act a deliberate effort on the part of our state legislature. As demonstrated by its action in trying to rename the county school superintendent and take it out from the *** case, trying to rename him Director of Administration. In the same Act saying everything he does as Director of Administration is the same as the former County Superintendent and in any places where we’ve overlooked renaming him whenever the word “county superintendent” is included, we now mean the Director of Administration, but he’s one in the same. Well they are renaming the roses. The significance of that is that they can’t, pardon my vernacular, Commissioner Bailey, you’ve been around me and I’ve been around you enough to know that I speak kind of in circles sometimes. But whistling Dixie and Yankee Doodle at the same time. They are trying to say, trying to get this out from under the “county office ruling” as *** on one hand, and on the other perhaps in my thinking of Duncan v. Coffee County we’re trying to uphold the *** case. I think that I’m prepared to express a very, very firm opinion that if the county commission enacts the resolution that’s on the floor consideration by this board, it will be upheld in a vote through the United States Deputy and the United States Circuit Court of Appeals for the Sixth Circuit. I’m happy to answer any questions dealing with any of the specific language contained, either in the Act or in the Duncan case or in some of the cases that Mr. Wilson has cited. I respect the opinions of others who dicker with me. That’s what makes the law go around. If everyone that practices law agreed with me I wouldn’t have anybody to fight with.
WELLFORD: Is the Duncan v. Coffee County case the one that talks about the federal constitutional principle of one man/one vote?
WINCHESTER: Absolutely. That’s what it’s founded on and it’s been the subject of dissolution being as effective a deprivation of one man/one vote.
WELLFORD: What state had legislation establishing voting districts and representation that was challenged and that resulted in the Supreme Court ruling establishing one man/one vote.
WINCHESTER: I think Mr. Wellford that you know the answer to that. That was the State of Tennessee and we’ve already plowed that field.
GIBBONS: Are there any other questions of Mr. Winchester while we have him up?
BAILEY: Lee, you and I go back a long way and have been good friends through the years, but and I’ve probably have agreed with you more than I’ve disagreed. But it seems to me, I hope I’m not interpreting you as urging the invalid Act by law and go ahead and pass the plan in the face of valid state law.
WINCHESTER: I’m saying on one hand in conjunction with Mr. Kuhn that the law itself is some of the reasons that have always been fraught with ambiguities. The Education Improvement Act of 1991 I challenged the constitutionality of that, the state constitutionality. I’m saying that if you interpret it the way some of the state decisions, some of the old common law decisions. If you interpret it that way then clearly it would be unconstitutional as a dilution of the one man/one vote rule. And accordingly it has to be interpreted generally and compatibly with this district being planned that’s under consideration or something similar to it that doesn’t place 70% of the vote for the rural Board of Education in the hands of people who do not reside in the jurisdiction of the board’s school system, and that has been defined and delineated in the Duncan v. Coffee County case.
BAILEY: But you agree too, though, that currently in terms of state law that this plan violates state law?
WINCHESTER: That was the part I said I disagree with Mr. Wilson on. I think that the evolutionary process has changed those old decisions and that if the state Supreme Court were to rule on it, and I don’t think that’s the proper place to take it. If they were to rule on it again they would say those old decisions are obsolete and that is a misinterpretation of the Education Improvement Act of 1991.
BAILEY: Being obsolete though doesn’t invalidate them does it?
WINCHESTER: Not automatically, no.
BAILEY: So they are still valid, even though you have determined them to be obsolete, the evolutionary development has caused them to become obsolete, they are still *** and binding aren’t they?
WINCHESTER: If the law were not subject to interpretation we’d be in a stagnant society, so the answer to your question is yes, you can make an argument on either side of that.
BAILEY: And as a proper forum to contest those obsolete laws, in terms of going to federal court and if it’s a situation deemed to be urgent, there are two processes we can follow. 1) We can ask the court to go to statutory court jurisdiction and ask for an expedited hearing or an emergency hearing. Isn’t that correct?
WINCHESTER: I’ve been in this room when Commissioner Bolton made some very persuasive arguments, Mr. Bailey, about the need to move forward with the districting plan and get on about the business of the districting plan. And if you want to say you’ve got to be trying (?) to follow the law, then the law dictates exactly what Commissioner Bolton has been urging and that is to get on with it and put a district plan into effect, and at the same time this particular resolution says “and while we’re about it let’s go into district court and make sure the opinions that we are getting dealing with the legality of this situation are accurate”. In this isolated case, Commissioner Bailey is wrong, which is a unique situation.
WILSON: Mr. Chairman, there is sufficient federal legislation just as there have been state cases guided an interpretation of state law regarding the election of county, school board members as county officers, that can guide this body as to the federal law in terms of cases. The state upper law in terms of the cases and guiding this body in terms of what the supreme law of the land, which is the United States Constitution. The law being wishy washy in terms of what is in fact the state law as determined by the Tennessee Supreme Court. There are higher authorities in terms of federal law which I think is clearer and is not benevolous so as to give pause as to whether or not there are suspicious basis to enact this legislation.
BAILEY: Let me ask Mr. Winchester – isn’t it true though that anytime you have a *** with the constitutionality with the state law you go ahead and invoke the statutory jurisdiction of the federal court, get you a 3-judge panel, and let the state Attorney General come in and argue.
WINCHESTER: At the same time you have to have a jurisdictional issue (situation?).
BAILEY: Are you saying we don’t have one here?
WINCHESTER: I’m saying if this is adopted we have a jurisdictional issue or something that has been voted in, if that be the case, I’m saying that ask that it be upheld. And if we don’t have anything we can’t go in and say “Mr. District Court, Mr. Court of Appeals, we don’t know what we were going to vote on but we want ya’ll to expound on the subject a little bit more.” That’s kind of tough to get over that hurdle of having a jurisdictional issue.
BAILEY: Well not if you have a proposed plan. What I’m saying is in case you also get an extradited hearing, an emergency hearing, if the court deems it important enough an issue.
WINCHESTER: If this is adopted, I suspect that such a motion might well be made simply because of the expense involved and the difficulty for the people going in to qualify for the office and so forth. But I can’t predict that with any degree of certainty, but it certainly might take place. I think it will probably take place either way.
GIBBONS: Thank you, sir. Does any other member of the commission have any comments? I will make a few brief comments without trying to be repetitious. Bringing the commission’s attention to our Oath of Office, yes we are sworn to support, obey and defend the constitution of the State of Tennessee and the Charter of the County of Shelby. But first and foremost we are sworn to support, obey and defend the United States. And where there is a conflict between the United States Constitution and the state law, clearly the United States Constitution must prevail. Now, under state law we are mandated to elect a county board of education. The county attorney has issued an opinion that that election must be August of this year. Accordingly, I along with Commissioner Norris directed the resolution that is before you. With regard to whether or not that election should be countywide or not, I have reviewed the case law extensively. I know Commissioner Norris has. I know Mr. Wilson has. I know Mr. Winchester has. Mr. Donelson, who represents the various mayors of suburban cities has, and all of us have reached the same conclusion. That it would be a violation of the United States Constitution for us to proceed with a countywide election of the school board under the circumstances that we face. Namely that it would traumatically dilute the votes of in district voters. Commissioner Bailey, I read the Coffee County case six times and every time I read it I reach the same conclusion. For those who advocate to proceed to simply follow state law, regardless of what federal case law may say, I must say that they *** of the elected officials throughout the south in the 1950’s, who said “despite what Brown vs. the Board of Education may say” or “despite what other federal courts may say”, state law requires us to keep schools segregated. So we’re not going to do anything to desegregate the schools. We all know what happened as a result of elected officials throughout the south taking that attitude. The courts had to step in and take action to desegregate the schools themselves. I think that’s a pretty good analogy. We face the situation where I think clearly based on federal case law it would be unconstitutional of us to have a countywide election. And I don’t think we can sit back, Commissioner Bailey, and simply say that despite that case law based on, despite those federal court decisions, based on state law we’re going to have a countywide election. I might add that to my knowledge there has not been an Appellate Court decision at this point, which indicates that state law requires us to have a countywide election. The only thing I’m aware of is a Chancery Court decision here which is on appeal, and an attorney general’s opinion which applies to a lot of these old cases that we’ve talked about *** to apply those to the present state law requiring the election of county school boards. If you weigh that against the Coffee County decision and other federal court decisions I think that our course of action is clear.
With that, unless any other commissioners have any comments, I’ll call for the vote.
There is a motion on the table to recommend approval and it has been duly seconded. All those who say aye. Those opposed. Call the roll.
Wilbun No
Rendtorff Aye
Hart Aye
Bailey No
Gibbons Aye
Norris Aye
Wellford Aye
Bolton No
Motion passes by a vote of 5 to 3. This resolution has been submitted in a timely manner for inclusion of the agenda for the Monday meeting of the Board of Commissioners that begins at 1:30. I appreciate all of you for attending and giving your input.
End
What’s good for the goose . . .
wish this could be printed in the CA.