CITY OF MEMPHIS, TN
Mayor Willie W.
Herenton
The Memphis Environmental
Court
Traditional Enforcement
For
well over a century, local governments have usually addressed environmentally
destructive behavior by using code enforcement and the penalty systems of the
court. However, traditional courts cannot always successfully ensure a safe
environment, free of disrepair, litter and pollution.
In
Memphis prior to 1982, non-compliance with the environmental codes -
which include those governing substandard housing, unsafe
buildings, abandoned automobiles, neglected properties, rodent harborage, animal
control, health, housing, illegal dumping, graffiti and other kinds of
vandalism, construction and fire codes -- was a matter of
little legal consequence. The $50 maximum fines that were occasionally imposed
by the Memphis Municipal Courts were considered by most violators, particularly
slumlords, to be a cost of doing business. It was far more cost-effective for
these defendants to pay a minimal fine, rather than spend substantial sums to
bring the properties in question up to code.
In
Memphis, environmental violations primarily involve four City agencies: the
Health Department, Fire Department, Housing and Community Development, and
Building and Zoning Codes Enforcement. Environmental cases were distributed
among eight municipal courts, all of which had criminal and civil jurisdiction.
Violators were often told to comply with the relevant codes, and their cases
would be continued for a period of time. The case would then be presented to a
different judge by a different prosecutor. This system provided little
opportunity for judges and prosecutors to become familiar with environmental
cases. It also made it extremely difficult to maintain the continuity needed to
adjudicate significant and often-complicated cases. Another serious drawback to
the system was that many violators went unpunished altogether by receiving an
unlimited number of continuances, or by having their cases dismissed outright by
some judges.
A
critical problem that the Memphis Municipal Courts faced was the procedural
set-up of the system, which dictated that environmental code violation cases
should be interspersed with all other cases. Inevitably, environmental violation
cases appeared on the same docket as criminal cases including aggravated
assault, rape and murder; as a result, environmental cases were viewed as
insignificant. The morale and productivity of agency inspectors, who were
responsible for reporting the violations and presenting cases to the courts,
suffered due to the inability of the court system to deal effectively with
environmental issues.
A Growing Problem in
Memphis
In 1982, the problem
of code violations in Memphis had reached a magnitude that could no longer be
ignored. During that year alone, the Health Department received more than 700
complaints about rat infestation in public and private housing, and there were
44 rat bite cases reported. (The Health Department estimated that two or three
times that number of people were actually bitten by rats, but only 44 sought
medical treatment.) There were several thousand illegal dump sites of varying
degree and size in Memphis and Shelby County. There were approximately 12,000
alleged health code violations reported in Memphis, and approximately 10,000
complaints relating to substandard housing. Many substandard housing cases
involved private owners who neglected their property to the point that it
promoted urban blight and threatened public health.
Citizens in Memphis began
demanding resolution to the environmental problems that plagued their
neighborhoods. They started organizing politically to demand stronger code
enforcement of the various municipal ordinances that impacted their
neighborhoods. Elected officials realized that this citizen activism would
require a streamlined approach to the manner in which code enforcement was
conducted. But budgetary considerations, declining inspector morale, and the
inefficiency of the court system itself threatened to undermine any changes to
be made.
Development of the Memphis
Environmental Court
In 1979,
while attending Keep America Beautiful, Inc.'s national conference in
Washington, D.C., Edith (Beaty) Heller, the executive director of the Memphis
City Beautiful Commission (a KAB affiliate program since 1979), met David Jester
of Indianapolis, the nation's first environmental court judge. Impressed by
Judge Jester and the Indianapolis Environmental Court, she returned to Memphis
with the idea of establishing a separate court in Memphis to hear environmental
cases. The concept attracted the attention of Mark Hackett, Director of the
Mayor's Action Center, Sanitation Director Claude Pearson, and Larry Potter, a
former defense attorney and prosecutor, then with the Memphis Attorney's
Office.
In August of
1982, Potter was appointed to a vacancy in the Municipal Court. A working group
including Judge Potter, Hackett, Pearson, Heller and Joyce McMackin, Memphis
City County Clerk, set about the task of establishing a separate environmental
docket. In light of budget constraints, the group recommended that a separate,
environmental docket be established, instead of creating an additional division
of court, and all cases of an environmental nature would be transferred to the
purposed docket.
Creation of the Environmental
Court
In 1983,
the City of Memphis unveiled the nation's third environmental court. It was
designed to serve as the chief vehicle for enforcing a wide range of laws
relating to the health and quality of life of its residents, and to give new
meaning to the term "expedient justice" by its ability to respond in a quick and
consistent manner.
The new
court was placed within an existing division of the Memphis Municipal Court, so
it was implemented without any additional cost to taxpayers. The new
environmental docket of cases was heard on Friday afternoons, with Judge Larry
Potter presiding.
After a
period of time, the advantages of the new environmental court became apparent.
First, the judge could specialize in environmental laws and regulations, thus
focusing on the seriousness of an offense in its proper context. Second,
inspectors were no longer required to wait in court while cases involving other
legal issues were discussed. This improved their morale as well as their
productivity. Inspectors began to learn and understand the laws applicable to
their cases and which arguments would find favor with the judge. Furthermore,
the judge's decisions gave the code enforcement agencies the ability to fashion
their cases in an appropriate manner, since the court developed its own set of
binding precedents.
The third
and perhaps most significant advantage of the environmental court was its
effectiveness. If service could be obtained on a defendant, a case could be
brought to court within a matter of days. In an emergency situation, a case
could appear on the court's docket in 24 to 48 hours.
Swift action
by the court greatly encouraged neighborhood groups throughout the city and
promoted a renewed spirit of cooperation among civic and political leaders. The
media also promoted the new court's innovative efforts as an example of how the
government and the community could work together effectively to resolve local
environmental issues.
With the advent of the court and with
the assistance of the Litter Control Division of the Health Department, great
progress was made and many hundreds of dump sites were eradicated. In 1988,
because of budgetary restrictions, the Litter Control Division was eliminated,
adversely affecting much of the progress that had been made. This was addressed
in 1998 when the Housing and Community Development Department implemented an
Illegal Dumping Force. In just one year, working through the court system the
task force has been successful in eliminating numerous dump sites.
Yet it is
important to understand that at this point the court was still jurisdictionally
limited. Additional innovations were required to surmount the legal system's
shortcomings.
One of these involved applying a new municipal code that
defined each daily violation as a separate offense for which a fine could be
assessed. This made violations that existed for lengthy periods of time very
expensive propositions for defendants who were found guilty, as fines quickly
escalated and often totaled as much as $10,000. Suddenly, the cost of doing
business for some defendants had increased
dramatically.
Another innovation involved on-site
appearances by Judge Potter. Once a guilty verdict had been reached or a guilty
plea entered, the defendant would be informed of the judge's impending on-site
visit, and the case would be continued to allow a reasonable period of time for
the defendant to correct the violation. Most defendants did comply, and Judge
Potter's practice of taking his courtroom into the community also gave residents
an opportunity to see their government "in action."
Another way
to increase compliance was to issue warrants for the arrest of those who ignored
the court summons. In essence, the Warrant Squad of the Memphis Police
Department would give the defendant an "engraved invitation" (arrest warrant) to
make a personal appearance in court. Individuals arrested in this manner were
required to post bond before they could be released from jail, and consequently
the number of people who refused to come to court decreased
substantially.
As another
means of obtaining compliance, the judge would remit hefty fines if violations
were cured quickly. If the court assessed a large fine against an individual,
the defendant would be given an explanation of his constitutional right of
appeal, and then told that the fine could be remitted if compliance was achieved
within a reasonable period of time and verified by the case inspector. More
often than not, defendants quickly rectified the problem.
By way of
example, in one case an inspector from the Health Department approached the
bench along with a young female witness with two small children. The defendant
was a male in his 50s who appeared to be rather affluent but nervous. He was
accused by the Health Department of a continuing violation of the health code in
that the property he was renting to the young woman had defective plumbing. Raw
sewage was flowing from the broken pipes of her home and was pooling in the
front yard. The young woman had for some time been trying to get the defendant
landlord to repair the defective plumbing, but to no avail. She then turned to
the Health Department for assistance. The young woman tearfully admitted that
she had found her two small children playing in the raw sewage and she felt
something should be done.
The
defendant admitted that the plumbing was not functioning in a proper manner, but
he did not intend to repair the problem since he was losing money on the rental
property. He further stated that he resented the intrusion of the Health
Department into his business and that he was embarrassed that a man of his
stature was forced to "waste his valuable time by coming to court to deal with
such trivial matters." After all proof had been taken, the judge found the
defendant guilty and then asked his deputy to give the defendant a tour of the
jail facility so that he could see how proper plumbing was supposed to work. He
was given the choice of repairing the plumbing, or paying a fine and court costs
for each day he was in violation. The plumbing was promptly repaired, but the
court could not order the defendant to repair the problem because of the
jurisdiction's limitations.
Despite the
Court's innovations and the significant progress that had been achieved, much
remained to be done. The main vehicle for gaining compliance remained the
assessment of fines and, granted, they were substantial in some cases. However,
the Memphis Environmental Court was still a municipal court, and it did not have
the jurisdictional authority to order an individual to clean up alleged
violations.
The
Memphis/Shelby County Environmental Court
As a result of the negligent landlord case and others,
Judge Potter and City and County officials worked to eliminate jurisdictional
limitations posed by City and County divisions. In 1991 the Tennessee State
Legislature created the Shelby County Environmental Court, and expanded the new
court's powers to include the "injunctive authority" to mandate that defendants
comply with the environmental codes. The court now could execute an order
stating that the defendant must take action, or refrain from a certain action.
Defendants who violated the court order would be held in contempt, which is
punishable by jail time.
Evidence of
the Environmental Court's success is exhibited in the fact that since 1991,
approximately 95 percent of cases are brought to a successful outcome, resulting
in the elimination of public health hazards and public and private
nuisances.
Additional Factors for Success
The
continued success of the Environmental Court relies on the participation of both
citizens and governmental agencies of Memphis and Shelby County. Judge Larry
Potter oversees the Environmental Court, and with the help of Memphis Mayor W.W.
Herenton and Shelby County Mayor Jim Rout, he recently initiated a community
service project that utilizes county probationers to clean up community
neighborhoods. He has also helped to develop new anti-neglect legislation
pertaining to private residential property, and is in the process of re-writing
the Commercial Anti-Neglect Code.
Judge Potter
also worked with both mayors to develop the "E-Team," an environmental S.W.A.T.
team -- comprising inspectors selected from the Fire, Health, Housing, and
Construction code enforcement agencies, based on their outstanding job
performance - that pro-actively targets certain areas of the city. With the
support of both mayors, the judge established a Citizen's Environmental Review
Panel. This required changes to existing municipal codes and the training of
ordinary citizens, who are appointed by the mayors to serve on the Panel, in
environmental regulations and laws. For the first time, private citizens in
Memphis/Shelby County can present complaints to the Review Panel for their
consideration, and the panel can approve a complaint for presentation to the
court by an affidavit of complaint. The judge then initiates the legal process
by having the defendant summoned to court.
Currently, Judge Potter is working to create the nation's
first community-based environmental court. The court would sit in different
areas of Memphis to hear cases that originate in those areas, with immediate
input from the surrounding neighborhoods. This court, together with the
community-based criminal court, would use defendants convicted of criminal
charges arising out of local neighborhoods to clean up environmental violations
in these areas, and would, in certain instances, allow local residents to
supervise the work. Now, for the first time in the history of the Environmental
Court, Memphis Police Department officers are writing citations based on
environmental violations, supported fully by department officials.
Judge Potter
travels extensively around the country, consulting and advising communities on
the establishment of environmental courts. To date there are approximately 70
environmental courts across the U.S., many of which have been inspired by or
patterned after the Memphis/Shelby County Environmental Court, which is
considered to be a national model.
For more information, please
contact:
Shelby County Environmental Court
201 Poplar Avenue, L.L. 56
Memphis, TN 38103
Phone: (901) 545-3456
Fax: (901) 545-3611
E-mail: Potter-L@co.shelby.tn.us
Rhodes-P@co.shelby.tn.us
Web Site:
www.envirocourt.co.shelby.tn.us
Return to Previous Page