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


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