Tuesday, November 07, 2006

Board of Commissioners' Vote On A New Judge Is, In A Word, Juvenile

If there is a Democratic way of running government, the creation of an unneeded second Juvenile Court judge by the Shelby County Board of Commissioners is about to become its poster child.

It’s too bad, because with less than three whole months under its belt as the new majority on the board of commissioners, the Democrats with this vote set a tone that will cause damage far beyond this single issue.

That’s because this second Juvenile Court judge is one of the lamest ideas to come before the county legislators, much less approved by it. It’s short on justification and long on political payback.

Worst of all, it has the potential of proving that Republicans have been right all these years – Democrats really don’t have a problem raiding the public purse for their own advantage.

Abject Ignorance

Most amazing of all is the fact that the commissioners’ vote appears rooted in an abject ignorance of what the Juvenile Court judge does in the first place. More to the point, the job has long been more administration than judicial, and if the commissioners’ objective is to reduce the number of child support cases pending in Juvenile Court, this was about the worst possible way to go about it.

That’s because the Juvenile Court Judge doesn’t really hear cases. He manages a bureaucracy that among other things includes Juvenile Court referees, lawyers who are appointed to hear the cases in its courts, and a detention facility.

Incredulously, the commissioners voted to create this judgeship without even finding how much it will cost. The salary of the judge - $140,000 – is only the tip of the iceberg, because once the costs of court clerks and support staff are added, the amount could easily spiral to $500,000 a year.

Put The Money Where It Will Do The Most Good

If the Shelby County commissioners have this much money on an unneeded judge, why not simply spend a fraction of that amount to pay the salaries of more referees to hear cases?

Commissioners base their decision on a 1967 private act of the Tennessee Legislature that empowered them (seven years before the county mayor’s office was even created) to appoint a second judge in the event a need was ever proven.

But here’s the thing: the bill was passed in the wake of the creation of the joint city-county court (now only county again), and in the intervening years, former Juvenile Court Judge Kenneth Turner surpassed any conventional thinking of the time to create a system that was viewed as a national model across the U.S. and the subject of a nationally televised documentary.

Stuck In A Time Warp

The system that he developed is light years from the simple notions that inspired the 1967 law – the notion that the judge would only hear cases rather than manage a sprawling operation of which courts is only one part. In other words, the current Juvenile Court bears no resemblance to what was thought to be the case 39 years ago.

Adding a second judge has about as much relevance to today’s operations of Juvenile Court as adding a second sheriff to address jail overcrowding.

While we were admittedly no supporters of Curtis Person’s election to the judgeship, this decision by the commissioners is highly dangerous, because it exposes lame political tendencies that can set public perceptions about the way that the new Democratic majority will rule county government.

After years of being one vote away from a majority, the new seven-member majority gives all the indications of a teenage-like overexcitement at the prospects of doing whatever they like.

Partisanship Over Promise

While it is tempting to say that the Republican push for partisan county elections years ago has finally come home to roost, it’s more to the point to be concerned that Democrats’ years of promising that they would be fairer and more egalitarian have quickly fallen prey to the arrogance of the majority vote.

In brushing aside Republican Commissioner David Lillard’s request for a two-week deferral, the Democrats also sent the message that the environment in county government would be more adversarial and decidedly less civil. Such deferrals have been routine over the years – and no one has profited more from them than Democrats – and it’s a shame that their new adulation with their own power trumps the courtesies and civility that are the grease that makes the wheels of the commission move.

And if the idea wasn’t illogical enough on the surface, Commissioner Steve Mulroy’s suggestion that the administrative duties should bounce back and forth between Person and a second judge sounds like a prescription for chaos and politics in a place that already has too much of them. From someone from whom so much was expected, this vote by Commissioner Mulroy for party purity was particularly demoralizing.

She Deserves Better

It’s widely believed in the county building that the judgeship is being created for Veronica Coleman, former U.S. Attorney and unsuccessful candidate for the post now held by Person, and while we are great admirers of hers, this is the wrong way for her considerable skills to be put to work. She’s an honorable person, and she should take the opportunity now to disassociate herself from the games that are afoot.

To make the political motivations even more transparent, the commissioners seemed intent on waiting to advance this idea so that it couldn’t be put on the ballot where citizens could pick their own judge, rather than allowing seven Democrats – with Republican Commissioner Mike Carpenter’s inexplicable backing – to pick who they want in the job.

All in all, it’s a sad tale of raw, albeit a bit amateurish, political gamesmanship, and hopefully, it’s an aberration and not a sign of things to come for the board of commissioners.


Mike Carpenter said...

Dear Smart City Memphis,

I generally make it a policy not to respond to blog postings, but in this case I will make an exception. I enjoy your blog and read it regularly, but this post misses a few key points.

Starting at the end of your post, you call my vote "inexplicable." It's inexplicable because you didn't ask. Here is the process I went through in making this decision:

First, the State Legislature by private act created the second division of juvenile court in 1967. The 8-5 vote by the County Commission simply authorized the filling of that position in accordance with the private act.

My vote with the Democrat majority on this issue was based on facts I had gathered through review of data and interviews with private citizens who have experience with the court. Admittedly, not everyone agreed another judge was the answer, but everyone agreed there are problems in juvenile court that must be addressed.

I stated emphatically that I did not agree with the timing of this decision. I voted twice during the meeting with my fellow Republicans to defer the issue to allow for more discussion. Both times deferral was voted down. The easy political decision would have been to vote along party lines and vote against the measure. However, based solely on the merits of the proposal, I believed voting with the majority was the right thing to do.
For the record, there were no deals, no quid pro quos in relation to this decision. Right or wrong, I voted my conscience.

The most critical factors for me were these:

• 26,000 delinquency cases affecting 16,000 children were addressed by the court last year. More aggressive law enforcement and the dramatic spike in juvenile crime will increase that number;

• There are an enormous number of child support cases now and the number is growing;

• The Juvenile Court judge is largely administrative with court-appointed referees hearing most of the cases. A judge who hears cases would eliminate a layer of bureaucracy and more swiftly bring closure for families and victims;

• Other court-appointed referees must be interviewed and confirmed by the County Commission, but juvenile court referees do not. A judge would initially be appointed and later elected by the people;

• There are many examples of “model courts” with multiple judges. This can work for Shelby County too.

In terms of cost, I have discussed the issue with county finance staff and am assured that the resources to afford a single judge and the minimal staff requirements are available. Estimates of huge expenses related to this decision are completely distorted, especially in light of the fact that Judge Person in a letter to Jim Huntzicker just requested 7-11% raises for his top staff, most of whom make more than $100,000 per year.

Throughout this process no one from juvenile court ever contacted me with facts about why another judge would be detrimental to their system. During discussion representatives were unable to articulate exactly how this proposal would negatively impact them. I determined based on my research and their presentation that the pros of having a second judge who would actually hear cases outweighed the cons.

There is much more I could include, but I will conclude with acknowledgement that another judge will not address all of the issues in juvenile court, but I believe it is part of the solution.

I would remind you of your post earlier this year in which you said, "With so many at-risk teenagers ending up in Juvenile Court in this community, it’s much more important that the focus be on intervention and inspiration rather than on the judicial kingdom that has built up over 40 years."

A new judge would certianly shakeup the "kingdom" and hopefully focus on intervention.

I cannot speak to the motivations of any other commissioner, but as for mine I made the best decision I could make with the information I had.

I will be a watchdog along with you to insure the court is managed efficiently and with the best interest of our children in mind.

Thank you for your comments and thought-provoking posts on this issue and others


Mike Carpenter
County Commissioner
District 1, Position 3

P.S. Any of your readers can contact me at my e-mail mike@wtcabc.org or call me on my cell at 331-0153 about this issue or any other.

Smart City Consulting said...


Thanks so much for writing, and we appreciate your explanation about the process that led you to be the 8th vote for the second Juvenile Court judge.

You've have a reputation for thoughtful decisions. That's why we found the vote inexplicable - not because you voted with the Democrats. In truth, we need more reaching across the aisle, not less of it. And we didn't think we implied it, but just for the record, we made no suggestion, or harbored a suspicion, that there was a quid pro quo in your vote with the other party.

Your thoughtfulness in posting a comment is appreciated and the justification for your vote is helpful. As you point out, we've noted before that we think that the entire juvenile justice system needs overhauling, and that's the reason that another juvenile court judge seems like something that does nothing but complicate the already cumbersome operations there.

Perhaps a better answer is to split the judicial duties from the others that consume so much of the judge's time - operating a detention facility and some social services. Juvenile Court was a well-known model for the nation a couple of decades ago, and it seems like a good time to take another look to make it one again.

Your point about referees is a good one. But does the county commission actually appoint all of the assistant divorce referees who are hearing pendente lite cases or just the head Divorce Referee nominated by the mayor and confirmed by the commissioners? If you are in fact confirming all of those referee assignments, then commissioners should certainly do the same for those working at Juvenile Court.

And when the county finance officials compute the cost of a new judge, tell them to add in all expenses - the cost of the judge, the cost of clerks, the cost of bailiffs, the cost of construction, etc., and include fringes with the salaries. We think the final cost is closer to our number than to the one you've heard.

That said, we expect that you will be one of the better members of the board of commissioners, as your commitment to explaining your votes proves.

Thank you again for the comment.

Again, thanks for elaborating on your vote. We appreciate your reading and we welcome and are grateful for your taking the time to comment.

Larry said...

I'll chime in here as both a former law enforcement officer and a father.

SCM is correct in that the admin duties need to be taken off the judge. Isn't that why there is clerk???

I've long advocated a 2nd judge but not in the manner the commission is doing it.

Juvenile court should be split into two separate courts ... criminal and civil ... just like other courts in the state.

It's a lot for a judge (or referee) to keep up with changes in both criminal and civil laws.

I personally had to read a change in the law to a referee in the court when he didn't believe me about it. I read it out of the book to him and he was none too pleased that he looked stupid for not knowing the change in the law.

Mike Carpenter, I'll tell you why a 2nd judge thrown in will be detrimental ... especially to children.

The judge sets the philosophy of the court.

For far too many years, the philosophy has been if you're the father, you're wrong unless proven otherwise.

For far too long, the court was too focused on squeezing child support out of fathers. It ignored pleadings from fathers that the mothers were interferring with visitation.

For far too long, the court, along with gov't agencies, lined up and gave mothers support, legal advice, filled out paperwork, etc. to collect child support but told fathers they needed to hire a lawyer.

Juvenile court was hurting children in the name of helping them.

Judge Person has committed to changing that attitude. He has created a pro se office for non-custodial parents.

Judge Person has committed to the philosophy of a presumption of shared parenting. No longer will fathers who want to be fathers have the door slammed in his face.

So, yes, create a position to handle criminal cases but don't throw a judge in with a different philosophy to confuse the situation on the civil side.

William T. Winchester said...

The fallacy of the arguments of Judge Person, the Commercial Appeal, and many others is that the Juvenile Court Judge is an administrative position and the judge does not supposed to hear cases. IF that were true, they might have a sound argument. However, their arguments must fail because the underlying premise that the Juvenile Court Judge does not hear cases is FALSE.

The Tennessee Constitution requires that cases be heard by the elected judges; there is no exception for Shelby County's Juvenile Court. The long-standing practice of appointing one of the referees as a "special judge" every day started back in the nineties when the law changed and former Judge Turner became ineligible to hear the cases that the elected judge is required to hear; the reason being that Judge Turner was not a licensed attorney. There is no such infirmity with the current judge. In fact, during the campaign, Judge Person promised that he would be the judge and take the bench to hear cases; this he has not done.

Another problem with Judge Person's philosophy is that the bulk of the employees at Juvenile Court are supposed to serve the Juvenile Court Clerk, not the Juvenile Court Judge. The employees in the Circuit Court serve the Circuit Court Clerk, not the 9 (NINE) Circuit Court Judges; the employees in the Chancery Court serve the Clerk and Master, not the 3 (THREE) Chancellors; the employees in the General Sessions Court serve the General Sessions Court Clerk, not the 14 (FOURTEEN) General Sessions Judges; etc.

There is a need for a second judge, and the leading rationale is to have a civil division and an unruly and delinquent division. Of course, the judges should be hearing the cases that the judges are supposed to hear. Judge Person has continued the use of appointing referees as "special judges", in violation of the Tennessee Constitution and Tennessee statutes. This will be brought to head in a Complaint for Writ of Certiorari and for Writ of Habeas Corpus in a delinquency case involving a mentally retarded 13 year old that was transferred to the adult criminal court, remanded after the criminal court found him incompetent, and then sent to Wilder by a "special judge" without any consideration of his mental health.

If the elected judge would take the bench and hear the cases he is required by law to hear, that would eliminate the need for one of the referee positions. With a second judge hearing cases, that would eliminate the need for a second referee. The two eliminated referee positions would more than pay the salary for the second judge, plus an administrative aide for the second judge. If the judges and referees would work full days every day, a good deal of the backlog could be eliminated.

William T. Winchester
Attorney at Law
(901) 685-2440

Anonymous said...

To date, no one, including county commssioners who voted for creating a new judgeship in the juvenile court have produced one single piece of evidence that this position will do anything to alleviate the perceived problems at juvenile court.

Worse than this, these same commissioners also failed to produce any compilation of fact regarding the costs, benefits, or ramifications on the court or the citizens of Shelby County. They ignored the only expert testimony that was given and instead relied on anecdotal evidence provided by their own colleagues.

It is obvious with the expeditious manner that this was moved through the commission, and the unwillingness by these commissioners to defer the vote until all parties had been allowed to have meaningful study of fact, that the primary agenda is purely political and has nothing to do with improving the court or those affected by the court.

Judge Person was elected overwhelmingly by the voters of Shelby County to replace Judge Turner less than 120 days ago. No one, even someone as qualified as Judge Person, can be expected to evaluate and remedy the needs of the juvenile court in this short time frame. As the duly elected Judge of the court, he should be given time to address these issues and bring recommendations before the commission.

It is very disturbing also that many of these commissioners admit in private that the only person being given any serious consideration for this position is one of those that was soundly defeated at the ballot box on August 3rd. This same person also is a client of one of the commissioners and calls into question whether or not this commissioner may have a serious conflict of interest.

The republican commissioners who voted against this measure did so because of the lack of study on this issue.The transcript of the vote is full of arrogance, hypocrisy and partisanship. It is very likely that this will now be a protracted court fight which does nothing to serve the community or the families affected by the court. If those supporting the measure had provided definitive data that supported their position, much of this could have been avoided.

The citizens of this county should demand that this item be deferred until the commission has supplied us with undeniable proof that creating a new judge in juvenile court is the best solution to solving the problems in the court. As of yet, they have failed to do that.

Bill Giannini
Shelby County Republican Party

William T. Winchester said...

Bill Giannini said in his post:

"Judge Person was elected overwhelmingly by the voters of Shelby County to replace Judge Turner less than 120 days ago. No one, even someone as qualified as Judge Person, can be expected to evaluate and remedy the needs of the juvenile court in this short time frame."

Although Judge Person was only elected back in August, he has been part of former Judge Turner's administration for decades. He has been a referee, a chief referee, and Turner's chief legal officer. He has been the architect for most of the current system at juvenile court. He was Turner's hand-picked successor to take over the reign at juvenile court.

Also, do not forget, that at the same time he was drawing his full salary (six figures) as the chief legal officer, he was also drawing his full salary as a state senator. Again, do not forget, that at the same time he was drawing his full salary as the chief legal officer, he spent the bulk of his time in Nashville doing his state senate work.

As a taxpayer, I am highly offended that a public servant would be able to draw a six figure salary and actually show up to work only, at best, one day a week.

William T. Winchester
Attorney at Law
(901) 685-2440

Mike Carpenter said...

I hope it will give everyone some comfort to know that I requested of Chairman Ford and received appointment as Chair of the Ad Hoc Committee on Juvenile Court. The committee will fully study the costs, processes and problems associated with the decision and juvenile court in general. We will meet before the end of the month. You have my word that representatives from all of the the stakeholders will be heard and that pre-existing funding deficiencies in juvenile court will also be discussed. The appointment of a new judge is at a minimum many weeks away. As chair we will not only deal with the judge issue, but a full review of juvenile court. This is the study of the issue I had previously requested prior to my vote and that everyone seems to agree is still warranted. I would welcome any input that could be helpful to the committee's study.

Thank you to everyone for your comments and your passion.


Mike Carpenter

Anonymous said...

It sounds like William Winchester can't handle the facts. The judge just doesn't hear cases. And if he doesn't like someone working one day a week and earning six figures, he ought to check out the state courts where a hard week seems to get the judges working about 25 hours.

Anonymous said...

It sounds like Carpenter got caught with his hand in the cookie jar. He needs to remember he's playing out in the open now and not in the back rooms. If he wants someone to be judge, they need to win it at the ballot box instead of making deals with Democrats.

Steve Mulroy said...

I agree with the arguments posted by Commissioner Carpenter and attorney William Winchester on the need for a second judge in Juvenile Court. Everyone involved in the issue seems to acknowledge the need for additional resources to deal with a backlog. The Juvenile Court staff itself has suggested two additional referees. I believe that it would be better to add a second judge and have both judges actually hearing cases, as voters expect a judge to do.
The idea of separate criminal and civil divisions within the court is one I have heard from many attorneys who practice there, and who agree that a second judge is needed. I am open to this idea and hope to study it as we go forward with the committee process referred to by Commissioner Carpenter.
I intend no criticism of Judge Person, for whom I have great affection and respect. I would be for a second judgeship regardless of who won the Juvenile Court race this August. Indeed, the decision has more to do with this August's County Commission election. Now that we have 8 new members, the Commission was able to look fresh at a reform idea which had long been suppressed, in part out of deference to former Judge Turner.
Finally, rotating administrative responsibilities among sitting judges is a common approach in courts, and one which need not lead to administrative chaos. It will force judges to work together to reach consensus while leaving a clear chain of command. As I indicated in my letter last week to the C-A, it is by far more common than the system we currently have in Juvenile Court.
I think Smart City does a real public service in fostering discussion in important areas, and I hope people will keep an open mind on this topic as we go forward.

Steve Mulroy
County Commission
District 5

Smart City Consulting said...

Commissioner Mulroy:

Thank you for the reply and the information.

There's clearly some problem areas in Juvenile Court - we've referred to them earlier, as Commissioner Carpenter points out - but rather than the board of commissioners respond with a political answer to an organizational question - add another elected official and the attendent staff support - what about the idea of taking a comprehensive approach to the entire Juvenile Court system? That sounds like what Commissioner Carpenter wants to do, and we think it's needed, and we hope he gets the support from his fellow commissioners to make it as through and objective as possible.

As Larry comments and others have said to us, there is no argument that the judge is now an administrative post and that referees hear cases. There's a backlog of cases, but to get the definitive answer about the cause of it and other issues, there needs to be an independent evaluation that looks at the the structure and all possible options for the most efficient organizational structure for the court. If that objective review recommends a second judge, then the public is more assured that the decision is rooted in reform, not politics.

Thanks for the comment, and more importantly, for serving in your office.

Anonymous said...

Why can't politicians ever just say they screwed up?

Anonymous said...

Carpenter just doesn't get it. When you're in a hole, quit digging. Now he's the chairman of a committee looking into Juvenile Court, and he's got to make sure it's honest. That's going to be tough as the lone Republican in a Democratic power grab.

WellInformedLady said...

I think that a lot of people are focusing on the money and that is understandable. But what about these questions. Why is this the only court in the County with just one judge/a monarchy so to speak. Also, if a judge would sit on the bench, the docket would move much faster. Why shouldn't this judge sit on the bench, why is this judgship still viewed as primarily administrative? There is a very large turnover of staff at juvenile court so the court never has a full staff. There are tons of problems at the court, like children waiting three years to be legitimated. How does this delay help the taxpayers? Shelby County ranks as the second lowest county in collections of child support when the percentages are looked at (ie: amount due vs. amount collected). Shelby county child support caseworkers have a much larger caseload than any other child support caseworkers across the state. Those are all serious issues that need to be addressed/ changed if the court is to be more effecient. There are also problems in other areas of the court, like probation. They are just not getting the media attention. For example why are so many children being referred to adult court? The increase in serious crimes is far less than the increase of referrals to adult court? Why? There are more than enough issues that need correcting to keep two judges busy, on the bench and off the bench.

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