Wednesday, November 15, 2006

Wanted: A Long View Of Juvenile Court, Rather Than Short-term Political Gain

The blowup about a second Juvenile Court Judge seems destined to become a defining moment for the Democratic-controlled Shelby County Board of Commissioners.

Finally, after 15 years as the minority party, they achieved the majority on the county legislative body, a benchmark of the shifting demographics that will eventually overhaul all of county politics.

With such a historic moment to make a statement about the vision of the Democratic Party, to usher in a new day in Shelby County Government and to articulate a bold agenda, it becomes more and more unbelievable that the commissioners are squandering their good will to create a second Juvenile Court Judge.

The Law Of Unintended Consequences

We’ve previously stated why we think there is no compelling justification for another judge. More to the point, adding another judge does exactly the opposite of what the Democratic commissioners – supported by Republican Commissioner Mike Carpenter – envision. Rather than reducing the backlog of cases and producing more efficiency at Juvenile Court, the second judge creates an operational nightmare.

If the commissioners succeed, Juvenile Court will be reminiscent of county government when three commissioners (then in charge of various services within the administrative branch) were constantly butting heads over their responsibilities. That was largely why the voters approved in 1974 the creation of the county mayor – a single administrative leader to replace the confusing, disruptive commission structure.

We know that some commissioners’ concerns about the bottlenecks in the juvenile justice system are sincere, but to us, adding a second judge is akin to injecting the same kind of confusion that existed in the days of the County Commission into Juvenile Court operations.

How About Another Sheriff, Too

As we’ve said before, it’s the equivalent of adding a second sheriff because of jail overcrowding, and to follow the suggestion of some commissioners, the two sheriffs would then alternate authority over the jail year to year. There is no one who foresees this kind of administrative structure as anything as a prescription for disaster

As we’ve said before, the Juvenile Court Judge is an administrative position. The judicial function of hearing cases is handled a team of referees, not unlike the team of assistant divorce referees who hear cases in Circuit and Chancery Courts.

There are some who claim that the Juvenile Court Judge is required to hear cases by the state constitution, but we don’t think the Constitution is that definitive, and Tennessee Code Annotated, in setting out the jurisdiction of the Juvenile Court Judge, never says the person in that position has to hear cases. Instead, state law says that the Juvenile Court Judge will “provide” a judicial procedure that guarantees a fair hearing. In fact, the law points out the many other responsibilities of the judge that have nothing to do at all with the courtroom.

Referees Are The Judges

As we have said, if the intent of the commissioners is to address the backlog of cases in Juvenile Court, they need to fund more referees. Here’s what Tennessee law says about Juvenile Court referees: “A referee has the same authority as the judge to issue any and all process…(and) the powers of a trial judge.”

As in the case of assistant divorce referees, where motions can be filed for a Circuit or Chancery judge to review their decisions, lawyers in Juvenile Court can file a similar motion with the Juvenile Court Judge.

In other words, suggestions that only a second elected, fulltime juvenile court judge could reduce the backlog of cases is specious at best. At worst, it comes across as Democrats taking something in the political backroom that they couldn’t get at the ballot box. Also, it promises litigation since there is a similar case where a second Juvenile Court judge was ruled illegal.

More Firepower Aimed At The Problem

Rather than throw another politician at the problem, we suggest that the Board of Commissioners fund four emergency referees and mandate Juvenile Court Judge Curtis Person to deliver weekly reports to the commissioners and the public about the results from this additional judicial help. That way, the public can measure the impact of the additional manpower, and if it fails to solve the problem, then, there’s more credence given to creation of a second judgeship.

In the meantime, we suggest that Shelby County Government – preferably the Wharton Administration in conjunction with the committee being chaired by Commissioner Carpenter to look into this issue and with Judge Person – hire an independent expert to evaluate the entire Juvenile Court operation.

There was a time when Juvenile Court was held up as a national model for other communities, and when former Juvenile Court Judge Kenneth Turner literally wrote the book on juvenile court operations. But we haven’t heard those kinds of accolades lately, and with a disproportionate percentage of youth in this city (when compared to most cities), there’s no place that has more at stake in having the nation’s best Juvenile Court system than Memphis.

Taking A Fresh Look

We believe it’s time for someone to take a fresh look at the entire operations of Juvenile Court. If the Democratic commissioners are right about a second judge, the process will prove them right, and the public can be assured that the new judge is justified by the facts and not just politics.

We suspect that in the end, such a comprehensive review would recommend a much more streamlined structure, perhaps with divided responsibilities between the judicial and correctional. There’s no argument that the Juvenile Court has developed over the years into a bureaucracy that at times seems unwieldy and inefficient, not to mention, in need of a more effective way of changing the lives of the thousands of at-risk youth who flow through it each year.

No one admires Veronica Coleman – clearly heir apparent for the second judgeship - more than we do, but for the commissioners to appoint her to a tainted judgeship does a disservice to her and to the integrity of the court itself.

The Bigger Picture

Let’s hope that every one will now take a step back, take a deep breath and take a different approach to all of this, an approach that could actually produce solutions to the real problems at Juvenile Court.

In the end, the goal should be to once again have a Juvenile Court system that is the standard for the rest of the country. Within that context, appointing a second judge becomes even more irrelevant.


William T. Winchester said...

As stated in paragraph (e) below, "Any party may, within five (5) days thereafter, excluding nonjudicial days, file a request with the court for a hearing by the judge of the juvenile court." The key phrase being "the judge of the juvenile court."

There is no question there is an entire class of cases that MUST BE HEARD by the JUDGE OF THE JUVENILE COURT, not another Referee playing judge of the day.

Also, the Tennessee Court of Appeals had this to say about Shelby County's Juvenile Court:


An Appeal from the Juvenile Court for Shelby County
Nos. P155 & P658 Claudia S. Haltom, Referee

No. W2004-02980-COA-R3-JV - Filed June 1, 2006

[The Tennessee Court of Appeals made the following comments in their opinion]:

This case illustrates the labyrinth of proceedings that can occur in the Juvenile Court of Memphis and Shelby County.


In attempting to address Mother’s argument that his notice of appeal of the custody issue was not timely, Father explained that his efforts to appeal the custody determination in docket number P658 were confounded by the Juvenile Court’s assignment of two docket numbers to the parties’ disputes.

This Court is not unsympathetic to the confusion inherent in the proceedings below, with each issue handled by a different Juvenile Court Referee and references to the Juvenile Court Judge which were heard by yet another Referee appointed as Special Judge to hear the referred matter.

This confusion would be compounded by the assignment of two different docket numbers to the custody and contempt petitions.

Such a convoluted web of proceedings would be difficult for an attorney to unravel, much less a party proceeding pro se.

One person's "model" court is another person's laughing stock.

This opinion was not written by any partisan persons; it was written by Tennessee's appellate court judges.

Need I say more?

William T. Winchester
Attorney at Law

§ 37-1-107. Referees

(a) The judge of the juvenile court may appoint one (1) or more suitable persons to act as referees at the pleasure of the judge. A referee shall be a member of the bar and may qualify and shall hold office at the pleasure of the judge. The compensation of a referee shall be fixed by the judge with the approval of the county legislative body or the pertinent governing body, and paid from public funds.

(b) The judge may direct that any case or class of cases shall be heard in the first instance by the referee in all cases wherein the juvenile court has jurisdiction in the manner provided for the hearing of cases by the court.

(c) A referee has the same authority as the judge to issue any and all process. The referee in the conduct of the proceedings has the powers of a trial judge.

(d) Upon the conclusion of the hearing in each case, the referee shall transmit to the judge all papers relating to the case, together with the referee's findings and recommendations in writing. Any hearing by a referee on any preliminary matter is final and not reviewable by the judge of the juvenile court, except on the court's own motion. The setting of bond in detention hearings and any matter that is a final adjudication of a juvenile shall not be construed to be a preliminary matter under this section and are reviewable by the judge of the juvenile court upon request or upon the court's own motion as provided in this section.

(e) Any party may, within five (5) days thereafter, excluding nonjudicial days, file a request with the court for a hearing by the judge of the juvenile court. The judge may, on the judge's own motion, order a rehearing of any matter heard before a referee, and shall allow a hearing if a request for such hearing is filed as herein prescribed. Unless the judge orders otherwise, the recommendation of the referee shall be the decree of the court pending a rehearing.

(f) In case no hearing before the judge is requested, or when the right to a hearing is waived, the findings and recommendations of the referee become the decree of the court when confirmed by an order of the judge. The final order of the court is, in any event, proof of such confirmation, and also of the fact that the matter was duly referred to the referee. A party may appeal such order pursuant to the provisions of § 37-1-159.

(g) All prior sections governing the organization, jurisdiction, and management of juvenile courts referred to in this section, that are not in conflict with this section, remain in full force and effect, and all sections in conflict with this section are hereby repealed.

Smart City Consulting said...

Why is the "labyrinth" of Juvenile Court any different than the labyrinth of referees used in Circuit and Chancery Courts?

And is there not already a Tennessee appeals court ruling that determined that a second judge was not legal?

William T. Winchester said...

No, there is not an appeals court ruling stating that a second judge is illegal.

Judge Person keeps referring to an Attorney General Opinion (not a court ruling) that Judge Person himself requested last May anticipating what is now occurring, that says the General Assembly cannot authorize a county commission to create a second division of the Juvenile Court. That is NOT what is occurring now. The AG Opinion does not reference Shelby County or the Private Act passed by the General Assembly that created our Juvenile Court.

When the General Assembly passed that Private Act, shown below, the General Assembly CREATED the second division. The General Assembly left it to the County Commission to decide when to fill the position. The County Commission is now filling the second division.

Sec. 9-235. Second division authorized.
There is hereby created a second division of the court. The judge of such division shall be subject to all of the provisions of this division in the same manner as is the other judge provided for in this division. The judgeship of the second division shall remain vacant until the board of county commissioners shall determine the need therefor and by resolution set a date for the election or appointment of such judge. The judge of the second division shall be learned in the law and licensed to practice law in this state.
(Priv. Acts 1967, Ch. 219, § 20)

Larry said...

Is it true that the Feds will pick up 75% of the cost of hiring a referee?

Probably has something to do federal bribes for child support enforcement.

And while it doesn't warm my heart to hear that, it does shift the burden from the heavily in debt county.

William T. Winchester said...

Regarding your question about the Circuit and Chancery Court Judges and the Divorce Referees, in Circuit and Chancery, the Divorce Referees are used for one thing - the determination of pendente lite child support and spousal support. Any party not satisfied with the Divorce Referee's decision can appeal that decision to the trial judge.

The reason that the Divorce Referees are used for the pendente lite support issues is so the party needing such support can get a quick hearing on the issue without having to wait for a hearing date from the trial judge.

In Juvenile Court, the Referees are used for everything, and as the Tennessee Court of Appeals stated, the same parties are assigned different docket numbers depending on the issue, a different Referee is used depending on the issue, etc. In Chancery and Circuit Court, once the case is assigned to a specific judge, it remains with that judge absent some extraordinary reason.

William T. Winchester
Attorney at Law

Smart City Consulting said...

Wasn't that bill that you are cited passed solely to get around the fact that at the time of his election, Kenneth Turner didn't have a law degree, and some folks were concerned that the judge had to have one? It wasn't passed because there was any sense that a second judge would be needed to handle court coases.

Anonymous said...

Anyone who has tried cases in juvenile court can tell you another judge is a wonderful idea regardless of party.

You can't appeal to "the judge" it doesn't work that way in juvenile court in Shelby county. There is a special judge who is appointed by the judge.

Calling juvenile court a "model court" is scary.

Mike Carpenter said...

The only way I knew to get this to you was to post. Let me know if you have questions.

January 3, 2007

Mike Carpenter 331-0153

Commissioner Carpenter Calls for Experts to Study Juvenile Court

(Memphis) – County Commissioner Mike Carpenter, who chairs the Ad Hoc Committee on Juvenile Court, is proposing that the county contract with the National Center for State Courts (NCSC) for an in-depth, internal analysis of operations within the court. NCSC is a not-for-profit organization that provides technical assistance to courts and governmental entities.

“The scope of juvenile court is enormous,” said Carpenter. “We can easily identify the problems that exist, but having the expertise to know how to solve them is beyond the experience and abilities of any County Commissioner.”

According to Carpenter, the NCSC would conduct an onsite analysis of the internal workings of Juvenile Court and within approximately sixty days submit recommendations in a written report. Carpenter believes the study would compliment the review currently underway by his committee. The cost of the study is estimated between $30,000-40,000 depending on scope.

“The County contributes $12 million to the Juvenile Court budget and the remaining $20 million comes from state and federal governments. The cost for the study is well worth the benefit to our community’s children,” said Carpenter.

In addition to seeking the support of his fellow Commissioners for the proposal, Carpenter has already won the support of Juvenile Court for the review. Officials with Juvenile Court have agreed to participate fully in the study and provide the necessary data for a thorough review.

“This cannot be us against them if we are truly interested in changing outcomes for children and families impacted by Juvenile Court,” said Carpenter. “We have to have involvement from Juvenile Court and other appropriate stakeholders.”

Carpenter said the study would not deal with the merits of a second division on juvenile court, but could be helpful in the event a second-division is filled.

“The courts now have to decide if the Commission can fill the second division authorized by the legislature. If the court determines a second division is constitutional, then this study could provide some direction in implementing that change in the most orderly manner,” said Carpenter.

Carpenter’s proposal will be on the committee’s agenda January 17 and before the full Commission on January 22. For more information on the National Center for State Courts visit their website at


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