Reaction to the Guilty verdict and the legal remedy prescribed by Chancellor Daryl Fansler in the case of the Knoxville News-Sentinel v. the Knox County Commission (The Knox County Commission Sunshine Law trial.
Chancellor Fansler needed Solomon's wisdom for his ruling on how to remedy the Knox County Commission's violation of the Open Meetings Act, but in the end his solution was a fairly simple one. The twelve officeholders, including eight Knox County Commissioners who were appointed in a manner that violated the Sunshine Law, were 30 minutes later rendered non-officeholders again.
Knox County has no Sheriff (the Chief Deputy is acting), no Register of Deeds (deputy is acting) and no County Clerk. Under Fansler's ruling, the 11 remaining elected Knox County Commissioners will appoint people to all of the vacant Commission seats and Constitutional offices. A quorum and majority under the ruling for the purposes of appointing vacancies comprises of six Commissioners. The Chancellor was quite clear that the meeting at which the appointments are made must be open to the public and the public must be afforded ample opportunity for a voice.
Chancellor Fansler also warned Commissioners that they are not to further violate the Sunshine Law, and that the Court would take jurisdiction in this matter, and that any violation of the Chancellor's injunction against private deliberation will result in a Contempt charge, with up to 10 days in jail and a fine of $50 for each instance of violation from today forward. The Commission is also required to submit semi-annual reports detailing compliance with the Open Meetings Act.
Doubtless most of the news-watching and reading portion of the State of Tennessee is aware of the awful tragedy at the Clarksville City Council meeting last night at which a man took his own life, shooting himself in the head after his request to have his home re-zoned commercial (his barber shop was located inside of it) was rejected by the Council. The poor fellow believed that based on his present business situation, the Council's vote not to re-zone his property would "put him under." He lost all hope.
People were obviously terrified by what happened, and Council members were so shaken that the Mayor of Clarksville has decided that no further Council meetings will be held in those chambers-ever. I felt especially sad when I heard the news because I saw the deeper lesson hidden in this terrible turn of events.
I honestly cannot say how I would have voted on this man's request because I don't live in Clarksville (and never have) and can't speak soundly to the needs of the community there. I do know that a local council or County Commission can't always vote based on the needs of one or two good citizens-even though they might like to-because the community as a whole would not be as well served if only the needs of one neighbor are considered and not all neighbors. The question of whether it would have hurt Clarksville to re-zone that poor man's property is a fair one for the citizens to ask, however.
If there is one thing to be learned from the death of Ronald "Bo" Ward, however, it is this: Local officials need to remember that the actions they take have a very direct impact on the lives of the citizens they serve. I have preached for years (usually either to the choir or to deaf ears) that local elections and elections for the State legislature are far more important than anything at the federal level, because those officials have a more immediate say in our everyday life. Local officials-Aldermen, Council members, Commissioners, City and County Mayors-should always take into account that their decisions will affect their neighbors for good or for ill, and for years to come. For that reason, no vote taken should ever be taken lightly.
Some are already complaining that the ruling will be today instead of yesterday, because may were hoping for a resolution in a hurry, but everyone needs to give Chancellor Daryl Fansler a break. I am quite certain that I am not the only person who believes that Fansler is going to have to decide this case with the wisdom of Solomon, and no matter what way he decides there is no real winner.
If he calls a special election, it would make a lot of people happy but it would be constitutionally suspect since the State Constitution provides for appointments in the case of immediate vacancies until the nearest election date.
Fansler could opt to order the Commission to "re-do" the appointment process of January 31, but if this is the option he decides then there is nothing to legally prevent the appointment of the very same people and with a rehash of similar complaints of nepotism and pre-planned outcomes.
The Chancellor could choose to do nothing pending February elections, but that would make the verdict moot and the entire trial a meaningless waste of the time and money of the people of Knox County.
Probably the fairest choice would be to order all of the term-limited officials back to their old posts pending scheduled elections that would remedy and resolve the whole affair in one fell swoop. That would return to office some of the very people the public deem responsible for causing the crisis by not abiding by the term limits approved by Knox County voters in 1994. No matter what way that Fansler chooses, someone could make a good argument that his ruling is wrong.
Considering these circumstances, I am sure it isn't killing anyone to give Daryl Fansler all the time that he needs to make the best judgement that he can.
Heinrich Himmler Reagan Farr, Fuhrer Bredesen defend tobacco Gestapo
Tennessee Gestapo ChiefRevenue CommissionerReagan Farr was to be found in today's News-Sentineldefending the Nazi tactics of his agency, which is now policing where Tennesseans may buy their cigarettes. If you dare buy more than two cartons of cigarettes across State lines, the State of Tennessee has its agents watching you. If you live near the border, nevermind that you are exercising your right as an American citizen to travel where you please and shop where you like, the Gestapo is watching where you buy your cigarettes, and when you try to return home, your tobacco will be seized as soon as you cross the Tennessee line.
If this can be legally upheld, there is nothing to stop the revenuers from confiscating food bought across State lines where there are no food taxes. If you don't believe this is a real infringement on your liberties, consider this:
So far, Farr said officials are only confiscating the cigarettes brought into the state by motorists. No cars have been seized, he said, and no motorist stopped had more than 10 cartons of cigarettes.
Let's translate: Farr's secret police aren't stopping big smugglers who are bringing cigarettes to Tennessee for resale, they are stopping the everyday traveller who has bought a carton or two for themselves.
Of course, the Fuhrer himself supports "the program," saying "I stand by my commissioner."
Farr has previously indicated his personal disdain for legislators and for the process of constitutional government, so it ought to come as no surprise that he has run afoul of a legislator determined to uphold his oath to defend both the Constitution of Tennessee and the United States: State Representative Stacey Campfield.
Farr apparently does not believe in critical free speech from the opposition, so he spends his time calling legislators and demanding that they remove blog posts critical of him or his agency. It is okay for Farr's revenuers to sit at the border and impede on motorists' rights to travel and to purchase as they please, and we can't criticize this because Farr "is a lawyer." Alert the presses!
Campfield is right to ask the Attorney General for a legal opinion on this matter. What's more, I would actually encourage citizens to file suit against the State to bring this henous practice to an end-this could end up in the U.S. Supreme Court folks.
Remember: Today it starts with travelling smokers-who is next on the Bredesen/Farr secret police hit list? It could be anyone.
At last, Knox County Commission Chairman Scott Moore and myself have come to a key point of agreement: “This process, we said, would not be a perfect process,” Moore continued. “If the chancellor is not strict on what he wants us to do, you’ll see chaos.”
Chairman Moore is absolutely correct. In terms of the best option for how to deal with the present crisis, the News-Sentinel lawsuit was decided five months and three days from a Primary election (February 5) that would provide the perfect legal and constitutional opportunity to have the election needed to fill the eight vacant seats without special permission from the General Assembly (or at least to begin the process via a Primary). It makes sense for Chancellor Daryl Fansler to simply return the original term-limited office-holders to their old offices until an election that is called at the earliest legal date should replace them.
Fansler may rule on how the Knox County Commission's violation of the Sunshine Law is to be remedied as early as today.
However the Chancellor should choose to remedy the situation, he must be so clear that the Commission knows exactly what it must do to remain above board and within the confines of the law. This will not only prevent further litigation, but may have the effect of allowing the Commission to move on with its immediate business.
If the remedy ruling is not so clear that Commissioners know exactly how to proceed, we are likely to see another process tainted by allegations of cronyism, favoritism, and violations of the Open Meetings Act. If that occurs, more time in Court will likely bog down the Commission further as questions of legitimacy dog them all the way until the election. It is in the Chancellor's power to resolve the controversy of how to replace the original term-limited officials with a single ruling. He must decide in a way specific enough that it leaves no room for error on the part of the Knox County Commission.
Deliberations began at 9 A.M. and the jury sent for lunch at midmorning. The jury returned just after 1:30 with all of its verdicts. Both News-Sentinel editor Jack McElroy and attorney Herb Moncier are jubilant, and rightly so-they got the guilty verdict they were looking for.
The story is far from over, however. As has been pointed out in all of the commentary I have written on the trial up to this point, the Open Meetings Act has literally no teeth-it imposes no criminal penalties, nor does it dictate that the guilty must pay any financial damages. From a practical point of view, this is a verdict with great symbolism but could have very little substance.
The ball is now in Chancellor Daryl Fansler's court, because it is he who will now decide what the Knox County Commission must do to rectify their violation of the Sunshine Law. Effectively, he has three options: First, he could order the Commission to simply "re-do" the appointments in a much more open fashion. With the possible exception of Josh Jordan, it would not be surprising if the rest of the eight replacement Commissioners were re-appointed under such a scenario. Fansler's second option would be to order that all of the original term-limited officeholders, including former Sheriff Tim Hutchison and former County Clerk William Mike Padgett be returned to their posts pending the 2008 February Primary, when the process of electing replacements can commence. This second option makes the most sense and could rectify any public perception of a "fix."
The third option, of course, is for the Chancellor to take no effective action. I doubt that this will occur considering the sheer amount of taxpayer time and money spent on and during this trial.
Whatever he decides, the weight of Tennessee history now rests on Daryl Fansler's shoulders.
Fansler turned aside Chief Deputy Law Director Mary Ann Stackhouse’s bid to poll jurors on whether each of the 19 commissioners violated the law. But he approved her request that jurors be asked whether the law was violated in each of the appointments.
“I’m going to do it office by office,” Fansler said of the interrogatories.
The Chancellor has ruled that the jury must make a decision on whether the Sunshine Law was violated in the case of each of the individual eight Commission appointments on January 31. It is one thing to make a very general determination (i.e. "The Knox County Commission violated the Open Meetings Act"), but it is quite another to determine that the Act was violated in each individual appointment. The Chancellor's ruling will effectively mean that the jury must make a determination about the validity of each appointment.
This also means that unless the jury finds that the Sunshine Law was violated in every case, the Chancellor is unlikely to throw out the entire appointment process. Chancellor Fansler's declaration about this key jury instruction may have already determined at least part of the outcome of this case. That the jury must make a verdict in each appointment may have already denied News-Sentinel editor Jack McElroy the victory he is seeking, since at least a portion of the outcome of January 31 is now likely to stand as it was at the end of that day.
Fansler's decision about the nature of jury deliberations is also likely to prolong the amount of time that it takes for the jury to finalize all of its verdicts. We are not now likely to see a jury in deliberation for only a few hours, but for several days at the very least.
Jack McElroy can't be terribly pleased this morning.
The smoking ban that still shocks me in this State where tobacco still hovers as the number one and number three cash crop takes effect today. As a non-smoker (I do enjoy an occasional cigar, but only once in a great while), the ban doesn't really concern me on a personal level, but I am concerned about the loss of freedom that is the result of this kind of legislation.
In reviewing comments so far this morning on the News-Sentinel story on the issue, the non-smokers appear to be gloating. "We no longer have to put up with a smoking section," they are saying. Some of these same people claim to favor the repeal of dry laws and the liberalization of other blue laws in this State. Ye hypocrites!
I have said all along that if a business owner wants to ban smoking in their establishment, they are certainly free to do so. In a free market, people vote with their feet and their dollars. If more people are frequenting businesses that do not allow smoking in their establishments, proprietors will eventually get the message. But alas, we have traded an ethic of freedom for the safe climate of legal paternalism.
The public smoking ban that takes effect today may very well become something that we as a people eventually become acclimated to, as its proponents suggest. The widespread acceptance of a minor tyranny does not make the strafing of freedom involved in such a law a good thing. This is a republic, not a raw democracy. Simply because the majority believe that something is good does not make it so, nor does it make removing liberty acceptable because the majority like the idea.
In accepting the smoking ban, the State of Tennessee is starting to travel down the same dangerous road that much of the rest of the country has already embarked upon-the notion that the State can better care for us than we can for ourselves.
For the last three weeks, both sides in the case of The Knoxville News-Sentinelv. The Knox County Commission have presented their arguments with enough persuasion that it is hard to say that this case is as cut-and-dry as some people seem to think. Among the people who think the jury will not take very long to reach a verdict is Don Bosch, who shared with me off-camera during the taping of Inside Tennessee that he did not believe the jury would be out longer than a couple of hours, all told.
I'm not quite as certain that the jury will have such an easy time if they do their job (and there is no reason to believe that they will not), because there is enough of the Plaintiff's case that rests on speculative evidence to make the process at least taxing, and no honest juror can determine guilt on speculation alone.
Throughout the trial, I have presented my honest view that regardless of whether you believe that Commissioners broke the Sunshine Law on January 31-and I believe based on the evidence that they likely did-that the News-Sentinel, and more specifically its editor Jack McElroy, have an agenda of their own. Throughout this trial, we've heard about the factions on the Knox County Commission. I have long believed that McElroy and the News-Sentinel editorial board side with Knox County Mayor Mike Ragsdale and his supporters, and that the lawsuit has more to do with the paper's access to the Commission, than it does the access of ordinary citizens (I do not think this is necessarily the case for the nine citizens also part of the suit). Even so, the paper has done what it believes is its public and civic duty in acting as an advocate for public access to the affairs of state.
Later this morning, after Chancellor Daryl Fansler instructs them, the case that has so animated the press and local public opinion here will find its way to the jury.
One thing that I absolutely agree with News-Sentinel editor Jack McElroy about is the jury's solemn responsibility:
At times, the testimony has been painfully tedious. Not only did the jurors have to watch videos of two full County Commission meetings, they had to sit staring at nothing happening during the long recesses in the Jan. 31 meeting.
They listened to dozens of journalists and politicians (can it get any worse than that?), and they learned more about the sausage-making aspect of politics than most citizens ever want to know.
Starting Monday afternoon, or thereabouts, they'll begin trying to make sense of the details, answering questions about a complex and esoteric law and achieving what's almost impossible in human affairs - agreement among 12 individuals.
This is precisely why the jury's job will not be easy, and it is also why we can thank God that we have trial by jury in America.
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