Author: Steve Mulroy

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Opinion Viewpoint

Now or Never

With our usual talent for provocation, the Shelby County Commission raised eyebrows with its decision to put on November’s ballot a referendum to raise the county sales tax by half a percentage point to the maximum allowed by state law.  Some suburban leaders protest because this complicates their plans to split off into municipal school districts. Some (but by no means all) Memphis leaders object because it would interfere with their own plans to “max out” the Memphis sales tax, knocking a planned Memphis referendum off the ballot.  

The irked Memphis leaders have a point, and they ought to be heard. But before you decide among competing sales-tax hikes, there’s stuff you should know.

State law caps “local option” sales taxes at 9.75 percent. We’re now at 9.25 percent. This last 0.5 percent increase that the county, city, and munis are fighting over is the last tax hike allowable by state law. So, it’s our last chance to raise revenue, through sales taxes, to fund the government services required (but often not paid for) by Tennessee.

The countywide sales tax is the only one that guarantees 50 percent of the revenue to education. It’s the only one with the power to take half the revenue raised by the suburbs, redirect it away from the costly, wasteful, re-segregative muni school districts, and funnel it back into the unified school system. It’s the only one that can save the embryonic unified school system as it struggles to come into being amid a serious budget shortfall. And it’s the only one that prioritizes the county as a whole over the needs of individual cities within that county. 

Timing: Back in February, I was against a countywide sales-tax hike. Sales taxes are regressive; they fall most harshly on the poor. At that time, state law prevented the suburbs from having their school referenda until 2014, and Memphis wasn’t considering maxing out the local sales tax. Now the suburbs have already hiked their sales taxes, and Memphis is poised to do likewise. That’s 90 percent of the county. It’s no longer a question of whether to raise sales taxes but what to do with the money.

And the county can’t just wait, give Memphis first crack at a referendum, and try its own thing later. Under state law, if Memphis gets its sales tax, any later county referendum would be just in unincorporated Shelby County, a population segment unlikely to vote to raise taxes. For the county, as a practical matter, it’s now or never.

A City/County Compromise: Under state law, a countywide sales tax imposes a compromise between county interests and city interests. The suburbs get to keep half the revenue raised but have to send half to the countywide education fund. By law, that second half can only be spent on schools, and it gets doled out proportionally to suburban and unified schools alike based on student population — i.e., fairly, based on need. Memphis would get $23 million or so each year to spend however it wants, but an equal amount would go to help Memphis kids get a better education. 

Countywide, this is $30 million annually for education, with at least 80 percent of that going to shore up the new unified school system. They’ll need that money, even if they adopt the cost-cutting measures urged by the Transition Planning Commission (as we’ll urge them to do). This money could move us to universal pre-K, which gets inner-city kids ready for first grade by starting early, when intervention is most effective — a potentially transformative improvement for all of Memphis. 

The Memphis Argument: True, if Memphis got to keep the whole $46 million, it could do more stuff Memphis needs to do. It’s not yet clear just what Memphis would do with the money, but no part of it would go to schools. Some city officials are pitching a combination of plugging a budget hole, funding basic services, and lowering city property taxes. I’ve got my own concerns about raising a regressive sales tax so as to lower a less regressive property tax, but I know Mayor Wharton believes lowering property taxes could help bring more businesses to Memphis, and he’s a smart guy.

Hopefully, by now it’s clear that this isn’t just some “pissing contest” between urban and suburban county commissioners but a crucial question of funding priorities. It requires dialogue, especially between Memphis officials and Memphis-based county commissioners. When the former (and the media) accuse the latter of “ignoring their constituents’ needs just to stick it to the suburbanites,” they’re not helping that dialogue.

County commissioner Steve Mulroy was a member of the majority that voted last week for the county sales-tax referendum.

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Opinion Viewpoint

Occupying Memphis

CREDIT: Jackson Baker

I write from inside a cold, snug tent with the rattle of the Main Street trolley, yards away, for a nighttime serenade. Winding down my night with the Occupy Memphis protesters, I try to answer three questions:

1) Why camp? We live in a country where the top 1 percent own more wealth than the bottom 50 percent and the top 10 percent more wealth than the bottom 90. Specifically, we live in the poorest large city of said country, a city with one of the widest gaps between rich and poor.

This situation was not some random accident but the result of policies that persisted despite their known consequences.

We let deregulated financial elites speculate the world economy to ruin. We then bailed them out without requiring them to repair the harm their unchecked greed caused and had the nerve to blame “irresponsible” middle-class home borrowers.

We resisted all attempts to make our tax system more progressive. In the midst of a narrowly averted second Depression, when jobs should have been Job One and stimulative spending our laser focus, we became fixated on ways to cut spending so as to trim the deficit and almost defaulted on our debts in the process.

Then a bunch of people in tents, first in Manhattan, then around the world, changed the conversation and forced us to look at the real issues.

Why wouldn’t I camp?

2) What are “they” like? As the name “the 99 percent” might suggest, they — we — are a diverse lot. Young and old, black and white, unemployed and busy professionals.

They include Jack Armstrong, a large, sardonic 40-something restaurant-industry consultant to whom the Occupy Memphis site between City Hall and the county building “feels like home now” after a month in residence. And Dana Wilson, an earnest 20-something youth education coordinator at Bridges who appears regularly but, because of her dog, sleeps at home “so far.”

My favorite bio is that of Tony Newton, a mortgage-investment lawyer and Occupy camper, who describes his political evolution as going “from Goldwater boy to anarchist” and who favors nationalizing the banks and the Federal Reserve.

They are organized. James Mack, a calm, even-tempered, displaced warehouse worker, coordinates PR. Leroy Crawford, a former songwriter, is part of the “peacekeeper” team, charged with security, who take regular classes in nonviolent conflict resolution.

Regular meetings of the “process” team fine-tune such minutiae as how to maximize use of the hand signals used at the “general assembly” meetings to further their culture of consensus decision-making.

“This is a community,” as Jack (first names are de rigueur here) put it simply the night I was there. He’s right. It’s an experimental community, and so far it’s working.

And they are committed. Committed enough to sleep on blanket-strewn wooden pallets indefinitely through freezing rain and violent thunderstorms, as they did the night before I arrived. Committed enough to drive nonstop to Washington, D.C., to join protests there in the expectation of getting arrested, as several did the night I was there.

In short, they’re not how they’ve been caricatured. As occupier Patrick Buttram, an adjunct University of Memphis professor, put it, “First they said we were hippies and stoners. Then they said we were anarchists and communists. Then they said we were dirty or violent. They’ll keep trying till something sticks.”

3) What do “they” want? Many have asked this question, because the occupiers don’t have five-point plans and faxed talking points. But it takes no clairvoyance to figure it out. They want to bring the fat cats who made the mess to justice and to convert those ill-gotten gains into help for the poor. They point to publicly owned buildings that lie vacant when they could be used to house the homeless and to unlimited corporate campaign spending.

Ask any three of them for solutions and you’ll get four answers, but it’s not hard to put together a list of likely candidates: Tougher regulation of the financial sector. Higher taxes on the wealthy. More spending on the poor. Reducing corporate influence over politics, our economy, and our culture.

Most of all, they want everyone to care about these issues the way they care. “I’m here 24 hours,” said Jared, the tent-erector, peacekeeper, and all purpose fixer of the site. “if we don’t win this time, the fascists take over.”

A little apocalyptic for my taste, I’ll admit. But I wish his sense of urgency on all of you.

Why did I camp? That’s the wrong question. The question you should be asking is, why haven’t you?

Steve Mulroy is a University of Memphis law professor and a Shelby County commissioner.

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Opinion Viewpoint

One Last Appeal

Back in 2006, when Shelby County tried to enforce a term-limits rule
for county commissioners, some officials challenged the rule under the
Tennessee Constitution. The trial court upheld the provision; the
appellate court struck it down; and the county took it to the Tennessee
Supreme Court, where the county ultimately prevailed. 

With luck, a similar judicial ping-pong may happen over the
commission’s attempt to appoint a second judge at Juvenile
Court.  

On Monday, a Tennessee court of appeals panel ruled that the 1967
state law authorizing the Shelby County Commission to appoint a second
judge violated the state Constitution, reversing a trial court decision
siding with the commission. The opinion is based on a strained reading
of the act and should be appealed.

The 1967 statute granted the County Commission the authority to
appoint a second judge whenever it deemed such an appointment
necessary. In 2006, the commission passed a resolution to fill the
vacancy. Judge Curtis Person, who would have had to share power
with the second judge, then sued to block that action. The
second judgeship has remained vacant by court order, pending the
litigation.

On the merits, the second judgeship is a sound judicial reform,
endorsed by the Memphis Bar Association, supported by findings of a
special study by the National Center for State Courts, and ratified by
a County Commission report summarizing months of public
hearings. It represents the majority model of juvenile court
structures around the country. More important, the opinion unfairly
overrules the will of the people, as expressed by the state legislature
and County Commission.

The 1967 act established the original Juvenile Court and then
provided:

“[T]here is hereby created a Second Division of the Court. … The
Judgeship of said Second Division shall remain vacant until the
Quarterly County Court of Shelby County shall determine the need
therefore.”

Yesterday’s appellate court reasoned as follows:

1) Under Article VI, Section 1 of the Tennessee Constitution, only
the state legislature can “create” a court.

2) Under Tennessee case law, the presence of a judge is an essential
element of a court — a court doesn’t exist without a judge. Thus,
the state legislature cannot create a court without also creating a
judgeship.

3) The act in question does not really create a judgeship, because
it leaves the question of when to fill the vacancy open to the County
Commission. 

4) By giving the commission power to say when the second
judgeship would be needed, it gave the commission the power to say if
it would ever be needed, which contradicts point one.

Points one and two are fair enough, but from there onward the court
goes astray.

First, the act’s plain language clearly states that the legislature
“hereby created” the second division of the court. The County
Commission did not “create” it.

Second, the act clearly does establish a “judgeship.” Its plain
language refers to “the Judgeship of said Second Division,” which is
held vacant. 

The appellate court goes out of its way to interpret the act’s
language to render the act unconstitutional, reversing the normal
presumption in favor of construing legislation in a manner to keep it
constitutional.

The opinion also proves too much. It is not at all unusual for the
legislature to create a new local court and allow local government to
fill the vacancy. But by the appellate panel’s logic, any time the
legislature does not simultaneously fill a new local court with a judge
the instant it creates it, it is violating the Tennessee Constitution.
In all such cases, there is some length of time during which the
“court” does not come into existence until the local body fills its
vacancy; by the logic of the opinion, the local government then
“establishes” the court, in violation of Article VI, Section 1.

Mindful of prior cases saying the state legislature could not
delegate to local bodies the power to “create” courts, the 1967
legislature was very careful to do the creating itself, leaving the
local body with only the narrow question of filling the vacancy. The
panel opinion simply disregards all this.

Getting a second judge is a good idea. So is challenging a decision
which unfairly and permanently ties the hands of the state
legislature and the County Commission. We should appeal the case to the
state Supreme Court and get the issue decided once and for
all. 

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Opinion Viewpoint

Merely a First Step

There was no shortage of media and public attention paid recently to
the Shelby County Commission’s handling of my proposed ordinance
banning discrimination against gay and transgendered persons. And
rightly so: For the first time in Tennessee, a government body has
officially offered protection against discrimination to the gay,
lesbian, bisexual, and transgendered (GLBT) community.

But there was also some confusion in media reports about the effect
of the “watered down” version which ultimately passed, with some
speculating that, because of its generic language and status as a
resolution rather than an ordinance, it somehow lacked teeth. And, even
if it is legally enforceable (which it is), you could be forgiven for
thinking the commission’s final compromise was no paradigm of moral
clarity.

So, was it a cop-out or a historic first step? The answer is both.
Despite the understandable disappointment of those favoring the
original, more strongly worded version, opponents of unfair
discrimination can rightly celebrate the fact that more than 6,000
Shelby County employees have an enforceable right against
sexual-orientation/gender-identity discrimination that they did not
have a month ago.

A majority of the County Commission espoused the view that GLBT
employees ought not suffer discrimination. So it’s hard to understand
why we’d be afraid to say so in the text of the resolution. But to
placate those concerned (unnecessarily) about implying any endorsement
of homosexual conduct, the commission replaced my proposed language
banning discrimination on the basis of “sexual orientation, gender
identity or expression” with generic language banning all
discrimination on the basis of “non-merit factors.” I didn’t like it,
but I went along because the new language had the same effect.

Given the language’s blandness, one might wonder whether it clearly
protects GLBT employees (or, for that matter, straight employees if
they’re discriminated against by a gay supervisor). But fear not:
Commissioners made clear on the record the intent and effect of the
resolution.

The maker of the substitute resolution stated explicitly that he
intended it to apply to all discrimination, including that on the basis
of “sexual orientation.” Several other commissioners assented,
reaffirming their support for the original, more explicit ordinance and
supporting the substitute only because it accomplished the same end. No
commissioner objected to this interpretation, despite invitations to do
so. Most important, the county attorney advised on the record that the
commissioners’ on-the-record colloquy made that intent clear.

Lawyers call this “legislative history.” It’s a common tool used by
courts to interpret legislation whose text isn’t clear. A court
interpreting this act would either apply the general language to
protect GLBT employees or decide the language was ambiguous, look to
the legislative history, and reach the same conclusion.

Much was made in the media about the change from ordinance to
resolution. As a general matter, an ordinance carries more weight. In
this case, however, the distinction is largely technical.

To regulate private businesses, as I originally proposed, we would
need an ordinance. But the amended version dealt only with county
employees (not including school employees) and as such could be done by
resolution.

Even as a resolution, the measure is legally binding on the county
and enforceable in court. A gay/transgendered employee claiming
discrimination can file a grievance which can be resolved
administratively, if need be, by the Civil Service Merit Board. If the
employee gets no relief there, he or she can appeal the decision in
Chancery Court, using the resolution as evidence that the county
“arbitrarily and capriciously” violated its own policy.

For the record, neither my original proposal nor the final
compromise version required unisex bathrooms or abolished
gender-specific dress codes or provided protection for pedophilia,
bestiality, or any other activity forbidden by law. Those arguing the
contrary either fundamentally misunderstood the proposal or used
cynical scare tactics.

Going forward, we can do better. Proponents are considering bringing
a similar measure before the Memphis City Council soon. If that
happens, the council should consider a full ordinance which lists
prohibited types of discrimination, specifically including “sexual
orientation, gender identity or expression” and which applies to city
employees, contractors, and large businesses in Memphis. Hopefully,
leaders will see our resolution for what it is: an important step but
merely a first step.

Steve Mulroy is a University of Memphis law professor and Shelby
County commissioner.

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Opinion Viewpoint

Let’s Have Instant Runoffs

Last November, voters in four City Council districts were asked to go back to the polls one month after the main city election to decide runoff elections. That extra election cost about $250,000 and yielded a typically abysmal 4 percent turnout rate (compared to 38 percent in the city election).

This year, the Memphis City Charter Commission can give us the benefits of a runoff without a second election, saving money, increasing turnout, improving campaigns, and making election results more representative. They can do so by putting on the referendum ballot a proposal for Memphis voters to approve Instant Runoff Voting (IRV) in city elections.

In IRV, voters rank candidates in preference order: “1,” “2,” “3,” etc. Voters can rank as many or as few candidates as they wish. If a candidate gets a majority of first–place votes, that candidate wins. If not, the candidate with the fewest first-place votes is eliminated. Votes for that candidate are redistributed among the remaining candidates based on those voters’ second-place choice. If someone thereby gains a majority, they are elected. If not, the next-weakest candidate is eliminated and the vote redistributed, until someone gets a majority.

IRV is used in San Francisco, Minneapolis, Oakland, Sarasota, and a number of other cities and was recently adopted in North Carolina by the cities of Cary and Hendersonville. It’s used for overseas absentee ballots in Arkansas, North Carolina, South Carolina, Louisiana, and other states. Globally, it’s used to elect the leaders of Ireland and India, the national legislature of Australia, and the mayor of London, among others.

IRV represents a growing trend. And the system presents several other advantages. It eliminates the “spoiler problem,” preventing a candidate from winning office with, say, 32 percent of the vote. It elects consensus candidates whose support is broad as well as deep. Not every voter will get their first choice, but far fewer will get their last choice.

It also encourages positive campaigning: Candidates want to be the first-place choice of their base and the second-place choice of their rival’s base.

IRV gives lesser-known, lesser-funded candidates more of a chance. No longer is voting for such a candidate “throwing away your vote.” If in 2000, for example, you wanted to vote for Ralph Nader but were afraid it would be in effect a vote for Bush, you could have ranked Nader “1” and Gore “2.” Because of this, IRV makes elections more competitive, thus boosting voter turnout.

Finally, voters can vote based on who they think will do the best job, without consulting the latest poll to see who’s “really got a chance of winning.”

For these reasons, Memphis should adopt IRV for all City Council elections, including those in the two “superdistricts” which currently don’t have runoffs. If the seven “single-member district” council-persons have to earn a majority of the vote, shouldn’t the six “superdistrict” councilpersons have to do the same?

Memphis should also use IRV for the mayor’s race. Doing this would mean getting permission from the federal court that decided the “majority vote” civil rights case filed in 1988. But this is doable. Since the lawsuit was filed, Memphis has changed from majority-white to majority-black. No longer can one seriously doubt the ability of African-American Memphians to elect candidates of their choice, which is why the feds originally got involved.

It may take time and money to prepare our voting machines for IRV, but the Charter Commission can give voters a referendum that empowers the city to adopt IRV once the technical problems are resolved or make it effective some number of years in the future. And the money saved in stopping unnecessary runoff elections will pay for any technical adjustments in the long run.

The Memphis Charter Commission has a once-in-a-generation chance to move Memphis forward, away from an outdated election system. Let’s hope the voters get a chance to decide.

Steve Mulroy is a law professor at the University of Memphis and a member of the Shelby County Commission.

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Opinion Viewpoint

A Clean-Up, Not a Burial

In an 11-0 vote, the Shelby County Commission recently passed an ordinance regulating “sexually oriented businesses” (the aptly named S.O.B.s). While most will say it’s about time, civil libertarians might worry about a New Puritanism. Fear not: This is not some Moral Majority crusade to Disney-fy Memphis but a relatively moderate regulation to weed the industry of a few bad apples.

Secondary effects: Throughout the County Commission’s discussion of this ordinance, I stressed that it is not our place to shut down all adult businesses based on our moral disapproval. Instead, we must regulate such businesses to narrowly target what the courts call their “secondary effects” — increasing crime and decreasing property values in surrounding areas.

We know such secondary effects are here in Memphis, as evidenced by the studies prepared and compiled by the national experts we hired.

Background checks: The new ordinance is provided under state law as a model for counties to adopt. It says adult-business owners and employees must get an operating license. The license will involve a background check to ensure that within recent years they haven’t committed certain crimes associated with S.O.B.s — prostitution, public indecency, rape, exploitation of minors, etc. If an owner or employee commits such a crime, their license is revoked for five years.

County consultant Eric Kelly, an Austin, Texas-based national expert on these issues, has worked on similar ordinances throughout the country. He’s told us that in cities with such laws, most S.O.B.s continue to operate but in compliance with the law. Businesses that base their profits on prostitution and other illegal activities fall by the wayside. The intent here is not to ban all S.O.B.s but to make them behave themselves.

That’s not to say the ordinance is perfect. A few doubts nag.

Alcohol: First, the model ordinance bans alcohol at S.O.B.s. Not even “brown bagging” is allowed. Reasonable people can disagree about the wisdom of this provision, but my vote was influenced by some practical and legal realities.

All S.O.B.s in Shelby County are in the city of Memphis. Once the county adopted the state-supplied model S.O.B. ordinance, it applies, by default, inside Memphis, unless the city adopts its own new law. If the county removed the liquor ban or changed any other part of the model law, it could not apply inside Memphis, making our action almost meaningless.

At the same time, my consultations with City Council members made me think it likely the city would adopt its own ordinance, likely one without the liquor ban. In such a case, the county’s ordinance could serve as a useful “backstop” to the city’s. That is, S.O.B. operators mulling a court challenge to the city ordinance might think twice before doing so, since invalidating the city law would only result in the tougher county ordinance automatically becoming effective inside Memphis.

Kelly tells us the alcohol ban needn’t kill all adult businesses in Memphis. Instead, it will force S.O.B.s to change their business model so they don’t rely on liquor sales for their profits, as S.O.B.s in other cities have done. But if the City Council wishes, it can enact its own ordinance allowing alcohol.

Bookstores: The ordinance regulates all adult bookstores the same as strip clubs, even bookstores without private booths for viewing porn and engaging in sex acts. Since adult bookstores without the infamous booths have less of a connection to secondary effects and more of a First Amendment argument that they promote “speech” rather than “conduct,” I am sponsoring a resolution encouraging the sheriff to enforce this law only on those bookstores with “on-site viewing.”

Zoning: Finally, the ordinance fails to address the problem of long-established S.O.B.s operating in residential areas (rather than the industrial-zoned areas where they belong), simply because they were grandfathered in under our zoning laws. To address this problem, I am sponsoring land-use code changes which would remove such grandfather protections for businesses that violate the S.O.B. ordinance. Over the long term, we want adult businesses in industrial zones, not residential ones.

Our new ordinance comes not to bury adult businesses but to clean them up. It’s one that neither Jerry Falwell nor Larry Flynt would like, which is fine by me.

Shelby County commissioner Steve Mulroy is a professor of law at the University of Memphis, where he teaches constitutional law, including First Amendment issues.