Environmental Law Section Fall 1999 Newsletter Articles

 

Meet Judge Larry Potter
Interview conducted by Barry Turner

From the Chair
by Ed Calloway

The Hon. Larry Potter is judge of the Shelby County Environmental Court. Barry Turner interviewed Judge Potter at his office in Memphis on August 26, 1999. The interview has been edited for length.

Turner: What was your background in the practice of law before coming to the bench?

Potter: I graduated from the University of Memphis Law School in December of 1977, and was admitted to the bar in July of 1978. I then went to work in the Memphis Public Defender’s Office doing all criminal cases, and became the Chief Public Defender. I went into private practice for a while. Then I came back and prosecuted criminal cases for a short period of time. I then went to work as an assistant city attorney for Memphis handling issues involving code violations.

Turner: When did you come to the bench?

Potter: In 1982, I was appointed to a vacancy on the municipal bench in Memphis. I ran for the position in 1983 and was elected. In late 1982, after first taking the position on the municipal court, I immediately started looking at the possibility of an environmental court. An individual I had worked with in city hall, Mark Hatcher, had given me some information about the first Environmental Court in the country, which is in Indianapolis. The court had been established with the help of Keep America Beautiful. Hatcher was the director of the Mayor’s Action Center in Memphis. The Action Center was a clearinghouse for complaints about problems in the city. The center responded to the complaints, a lot of which were of an environmental nature. The Memphis municipal courts were not really responding to these violations. After I was elected, Hatcher suggested I set up an environmental court in Memphis.

Turner: How did you go about doing that?

Potter: I looked at the environmental court in Indianapolis. Of course, that court was a full-time environmental court, and had considerable resources available to it. We set up an environmental docket in our municipal court. There was no cost to the taxpayers since we used an existing division of city court. The practice in the municipal courts at that time was that no cases were heard on Friday afternoons. I decided to hear environmental cases on Friday afternoons. All cases of an environmental nature were transferred into my court. It was really rather simple to do. The mayor and council supported it, and the other municipal judges did not want to hear these types of cases.

Turner: What was the response of the city regulators to your environmental docket?

Potter: Some people in the agencies were less than appreciative. They did not think I was serious. Although some city agency heads were not supportive at first, eventually, they came around when they saw that I was serious about this. I think the hesitance initially was because nothing had been done before. In the past, city codes inspectors felt like they were being put on trial by the judges, because they had the audacity to bring a businessman to court. The judges would frown on that. But I never thought it was fair to blame the judges. These cases were put into all the city courts, and there was no continuity on those matters. A judge would go from an assault and battery to littering and not see the littering as serious. I think both are serious.

Turner: What was the public’s response to the court?

Potter: The people began to respond to what we were doing, and more cases began coming to the court. A lot of neighborhood groups pushed the agencies into court. For example, one large business was brought into court by an agency, because of an inner city neighborhood complaining about some issues. Nothing had ever been done about this business, and all I could do was assess fines. But that had never happened before and the groups could see that I meant business.

Turner: Was a fine your only way to address a violation?

Potter: Yes. I began to research and learned that if problems had been in existence for a long time, inspectors needed to charge a continuing violation. Then a fine can be assessed on a day-by-day basis. This had never been done before. A $60 fine was a cost of doing business. It was cheaper to pay than to fix the problem. By using continuing violations, fines became substantial, some thousands of dollars in fines and costs. We began to see people become receptive to rectifying the problem. My theory is that it does no good to assess fines if the problem is not addressed. I wanted to see the violation rectified. I wanted it cleaned up. One of the cases that came to the court was Jack’s Foods. It was a food business, like a grocery store. He would buy surplus food, and sell it to people in the inner city. The health department claimed that the food was in bloated and dented cans, and probably contained botulism. The inspectors brought some of the cans in, and photographs of open bins of dry food with rat droppings. This man also was selling meat without a permit, and with no sanitary facilities to prepare and sell the meat. These were continuing violations. I heard proof; the inspectors made a good presentation. The defendant reminded me of my grandfather. He claimed the inspectors were lying. He said he was providing a service for the people in the inner city. If not for him, they would not eat, because they could not afford to go to Kroger’s or the other big grocery stores. This was the first case where I decided to go look at the site. The next morning, when I got to the site, I thought he would have cleaned up some, but he had not. The cans were bad. I saw rat droppings, and the meat being sold was so old, on some ribs, the meat had pulled away from the bones. When we got back to court, I fined him about $9,000, plus costs. What bothered me is that I did not have jurisdictional authority to stop this man from operating. All I could do was assess fines. Fortunately, he went out of business, because he could not pay fines. But this case prompted me to try and use what I call “judicial creativity,” within the bounds of the law, of course.

Turner: What were you able to do?

Potter: One of the things I did was the on-site inspections, but I can’t do that in every case. The psychology behind it is that if defendants know a judge is coming, surely they will clean up, and in most circumstances they did. Another creative thing we did was use remittitur. An example was a case I heard involving abandoned automobiles, a housing code case. The inspector said they had been trying to get something done for 10 years and the defendant would not clean it up. He had 60 abandoned automobiles on a small residential lot and the neighbors were up in arms about this. The defendant said there were only 35 cars, and they were not abandoned, but classics he was going to restore one day. I looked at photographs of the automobiles. They had no doors or hoods, and trees were growing through the bodies. I assessed $6,000 in fines for the continuing violations. I knew I had this man’s attention. Sometimes, if you get them by the wallet, their hearts will follow. I asked him if he would like to save himself some $5,000. He said yes, and I told him to remove the vehicles within a reasonable time and come back to court. If the inspector certified that they were gone, I would remit the fine. No one thought he would do it, because they had been dealing with him for 10 years. But he did. All the cars were removed and he was in compliance.

Turner: The 1991 legislation (1991 Tenn. Pub. Acts, ch. 426) established your court as a general sessions court and gave you Rule 65 injunctive power. How did that come about?

Potter: When we started in 1982, the court was a municipal court. In 1991, I discussed the idea of creating a county environmental court with then Shelby County Mayor Morris and County Commissioner Perkins. Shelby County had been given home rule jurisdiction. We wrote legislation creating a county-wide environmental court with injunctive authority to be able to order someone to take certain action, or to refrain from taking certain action. When that legislation was presented, it passed overwhelmingly. Partisan issues were set aside. Of course, economics always enters into this. How much is it going to cost to establish a new general sessions court? What we did was in Shelby County at that time, any citizen who got a traffic ticket, it was a state criminal offense, and most of the fines went to Nashville. I suggested to Mayor Morris that the county create its own traffic code, for speeding, running stop signs, things of that nature. It would be civil, not criminal, and the fines would stay in Shelby County. This was done and it produced more than enough revenue to fund the environmental court.

Turner: When did you begin functioning as a general sessions court?

Potter: In July 1991. The first case in which injunctive relief was requested was one involving a “topless bar.” Not exactly what we had envisioned, but it was a case involving a zoning code violation. It was in a neighborhood close to a school, and it was enjoined from operating.

Turner: What subject matter areas are within the jurisdiction of the Shelby County Environmental Court?

Potter: Generally, it covers four major areas. Health code violations, housing code violations, building code violations and fire code violations. There is a lot under the health code, including pollution control, infectious diseases, sanitation, and rabies and mosquito control.

Turner: Is all of this civil in nature?

Potter: Ninety-five percent is civil. But I have jurisdiction over all county ordinance violations, city ordinance violations, and state law, so it’s a three-tiered approach. By an interlocal agreement with the City of Memphis, we hear all of their environmental cases. We also have an agreement with the cities of Arlington and Lakeland to hear their environmental cases, and we are working on an agreement with the city of Millington.

Turner: I noticed that the 1991 legislation provided for Assistant District Attorneys to serve this court. How does that work?

Potter: We have two assistant district attorneys who work in my court full time. They present all the cases. But they are rotated, and I have tried to get the attorney general not to do that, because it takes me a lengthy period of time to educate new people about what we are dealing with. An assistant attorney general’s experience is in the criminal area, not the civil area. Now, I have two individuals who have been with me before and both are fairly knowledgeable. I would like to keep them; I do not like the revolving door. They are Don Seimer, who is lead prosecutor, and Perry Mceleu.

Turner: Have you seen an increase in environmental cases since 1991?

Potter: Yes. Since 1991, the cases increased dramatically. There was a decrease beginning in 1994, and in 1999 we have seen it begin to increase again. We are not exactly sure why. We are in the process of tracking all environmental cases to determine who is bringing them, and how long it is taking to get to court. We think the cases began to decrease when the “e-team” disbanded.

Turner: What was the “e-team”?

Potter: The environmental team, or e-team, was four inspectors from housing, health, zoning and fire, who were cross-trained. The Mayor’s Action Center I mentioned earlier, the complaint clearinghouse, would farm out a complaint to the agency it thought it should go to. If it went to health and the health inspector did not think it was a health violation, it would go back to the center. This was very frustrating for the people in the neighborhoods where the problem was. There was a “think tank” created to address some of these issues, and from this the idea of the e-team came. The concept was to have four inspectors — the e-team — and they would cross train each other so that when they went out, if the violation was not in their area, they would recognize it as a violation of another area and write it up. The e-team was very successful. When the e-team was operating, we saw the cases increasing. The agencies then began to complain about who was supervising these people. So we set up a team to supervise them and turned it over to the agencies. But within six months, the agencies disbanded the e-team. When the e-team ceased, our cases dropped.

Turner: I know your environmental court was the first in Tennessee. Were you involved in the creation of the other environmental courts in Tennessee?

Potter: Yes, we took the concept and exported it to Chattanooga, to Knoxville, and to Metro Nashville. There is also now an environmental court in Jackson and in Knox County. I have been told by Keep America Beautiful that our court is the most active in the country. There are probably more environmental courts in Tennessee than in any other state. I also have traveled across the country helping other cities and counties establish environmental courts based on what we have done in Memphis.

Turner: What do you see as the future initiatives or direction of the court?

Potter: We are working on several things. Bringing back the e-team. We are in the process of establishing a community court. We are going to hold court in the community in the northern part of the city twice a month in a neighborhood shopping center. We will be dealing with cases coming out of that neighborhood. We will also have a criminal court judge there doing misdemeanor violations, and those individuals convicted and sentenced to do community service will work on our environmental cases; we are going to clean up that area. We plan to have this operational by the first of the year. We are also working with our citizen review panel, which allows the citizens themselves to bring a case to this court. There are 11 citizens on the panel. Both the city and the county mayors were asked to make appointments to the panel, as were some community-based organizations. My assistant, Paula Rhodes, and I trained these citizens to recognize violations. The city council approved a change in the law, and there are certain criteria: the condition has been in existence at least six months, it was turned in to the Mayor’s Service Center, and an individual is willing to come to court to testify. If the criteria are met, then the information is presented to the panel, and if the panel believes there is a violation, the panel will draft a summons for my signature. If I think there is a violation, I will sign the summons, and this will start the case moving. This is working, and the panel is becoming more and more active. Finally, we are going to establish a computer system with 18 years of our environmental court records. When people come to court, I will know if they have been here before, what they did, and what the outcome was. I will have an environmental “rap sheet.”

First of all, I’m honored to be the chair of the Environmental Law Section for the 1999-2000 season. I will do my best to fill the shoes of Joe Sanders, my esteemed predecessor.

Now down to business.

This year, the section is planning three functions. The 1999 Tennessee Environmental Law Forum will be held November 10th at the BellSouth Building in Nashville. This year, Bill Penny has again orchestrated a varied and substantive agenda, with noted national speakers on each topic. (See program information on the next page.) One new initiative this year is the inclusion of space for exhibitors to display their wares and for our members to learn more about the services available to help solve clients’ environmental issues cost effectively. I certainly hope that the whole membership can attend what is really the premier substantive environmental continuing legal education seminar in Tennessee.

The section will hold a meeting at the Loews Vanderbilt Plaza on January 14th, 2000, as part of the TBA Mid-Winter Meeting. At this meeting, we’ll conduct official business such as filling any vacancies on the executive committee, and update the membership on plans for upcoming events. Anyone interested in becoming more involved in the section should try to attend, or contact me in advance of the meeting — we’ve never turned away an enthusiastic volunteer.

Finally, we’ll be sponsoring some portion of the presentation at the 29th Annual Solid and Hazardous Waste Exhibition in Gatlinburg, May 3 – 5, 2000. The section will again pursue CLE credit for as much of the program as possible, and will coordinate one presentation of special interest to environmental lawyers in Tennessee. Other options under consideration include breakfast with the TDEC Commissioner or other policymakers, or a small reception. We again solicit volunteers to help coordinate all this activity, which has been a great success the last two years.

One other development of note is the establishment of a listserve that allows one to send messages simultaneously to all the members of the section. We hope this will serve as a forum for dissemination of information about developments in Tennessee environmental law (which is generally developed without any documentation), section news, or discussion of issues relevant to the section’s purpose. To access the listserve, send an e-mail, including your address and the word subscribe in the subject heading to environ-law@tba.org

The executive committee has started planning for these activities, but we always welcome suggestions from the membership at large as to the most useful role for the section. Any feedback you can provide as to what purpose you believe the section could serve that it doesn’t currently is invaluable. The section exists solely to serve the professional interests of its members. Please help us make sure it does the best job possible.