City of Smithville vs. DUD

— “You can’t trust water: Even a straight stick turns crooked in it.” — W.C. Fields —

I’m stepping away from the legal topics for this post and heading into the realm of local politics. I do so with an understanding that politics is divisive and this post may turn some people off. However, I was  taken aback by this subject and just needed to get it out. And local politics is not partisan, it is personal.

So, in DeKalb County, Tennessee, there is a big fight between the DeKalb Utility District (DUD) and the City of Smithville (City) regarding water. Behind all the fuss is lots of money. Apparently, DUD buys a boatload of water from the City. Well, DUD decided that it wanted to streamline services by building its own water treatment plant. That way, they would not be dependent upon the City for their water. That sounds simple enough, and maybe a little business savvy on the part of DUD. The City opposed this as DUD is the City’s biggest water customer. And that is all fine and well.

What is not all fine and well is the fact that the City of Smithville Board of Alderman apparently voted to and actually did hire a public relations firm to “educate the public.” Really, they wanted to stop this water treatment plant from being built. Here’s the kicker. The public relations group that was hired was The Calvert Street Group out of Nashville, Tennessee. This group was hired in April 2012 and paid “$5,000 per month, plus expenses.” The arrangement also included a potential $25,000 bonus if The Calvert Street Group stopped the DUD from building its water treatment plant. The City of Smithville Secretary-Treasurer, Hunter Hendrixson, testified at the Tennessee Utility Management Review Board (UMRB) that as of “March 2013, before the UMRB hearing, the City had paid the Calvert Street Group in excess of $78,000, not including legal fees to the attorneys representing ‘ratepayers’ in UMRB proceedings.”

There are still legal battles pending between the two groups. I’m not necessarily worried about the fact that they are fighting over rates or that they don’t really get along. I’m concerned with the fact that the unnecessary quibbling of these groups is costing taxpayers/ ratepayers in the City of Smithville and beyond a lot of money. And this is apparently at the behest of a few as opposed to the majority. In an article in WJLE dated April 4, 2013, the UMRB board reviewing this issues is quoted as saying, “I believe there was major bias demonstrated throughout this hearing today where the public relations firm [The Calvert Street Group] actually drummed up the people to sign the petition and even offered them prizes if they got a lot of people signed up.”  See http://www.wjle.com/news/2013/umrb-dismisses-dud-ratepayers-petition (Emphasis added)

If the public is not behind the frenzy and it is really being ginned up by this firm, what is the point? Who really wants to stop this plant from being built? These are questions that may not get answered. But I was told by a professor years ago to “follow the money” in order to get to people’s motivations about things. At this point, I haven’t found the end of the rainbow.

The Calvert Street Group certainly has. It is apparently still employed by the City as of January 2014. There was a “robo call” made per the Group’s order to all DUD members about a public hearing in January. “Only one DUD customer showed up for the hearing and he did not speak.” That’s another $5,000 of taxpayer money sent to Nashville.

The City’s opposition to this water plant by DUD stems from an argument that purchasers of water from the City will have to have a rate hike if DUD gets its own plant. The only thing that has happened thus far is that the City has spent in excess of $100,000 on a PR firm that was able to get one DUD customer to a public hearing. Money well spent.

The rate hikes behind all this is a bit fuzzy as well. The City must run its utilities and services, per statute, at cost. Meaning, they cannot profit from these entities. Yet, the City has a surplus over its operational budget according to WJLE’s reporting. (Also this information can be found at the State Comptroller’s website.) Recently, the City has voted to raise the rates to DUD to $5.00 per thousand gallons of water. That is a 144% increase. A recent study of the City’s operational expenses found that the City’s average cost is “$2.67” but could be as low as “$2.25.” (Warren Study, See WJLE.COM) Is this rate hike arbitrary? Is it retaliatory? If the goal was to stop DUD from building the treatment plant, this is not the way to go about it.

Yes, lets charge our best customer double what they have been paying… that’ll keep them coming back for more. (Maybe that was a bit overboard but I haven’t seen a good reason yet)

It is unclear what will happen with the water plant and whether DUD will get relief from the rate hikes placed upon it by the City. But there is something to be taken from this fiasco. Do not sleep on local politics. I can claim as an excuse my preparation for law school finals and the bar exam. But I live in this city, own property in this city and drink the water that this City provides. I was completely unaware that my representatives had voted to pay this amount of money to a PR firm. That’s on me. It won’t go unnoticed again.

More research is needed to see who the actual board members were at the time of the hiring. However, the agreement between the City and The Calvert Street Group is a month to month agreement. It has been renewed or allowed to continue in excess of 20 months at $5,000 per month. What have we received in return? I would argue nothing, but that’s just me. That’s on the current board members.

That’s where I stand. Please feel free to comment below. If you agree, fine. If you don’t, please tell me why. I believe in open debate and honest disagreements. But please give me something to work with, namely facts.

Full disclosure, I am not a DUD member nor am I a DUD ratepayer. I live in the City of Smithville. I understand there is pending litigation regarding these issues and this is meant only as an opinion of the issues publicly stated. There may be many more facts that have yet to be disclosed. I am open to changing my mind if and when those facts appear that warrant such an alteration. 

Information for this post came from WJLE.com articles covering this issue. All credit is given to WJLE.com for their work and coverage of this important issue. 

Liar Liar!

I had the pleasure of witnessing, what must truly be a singular event in the practice of law. It occurred on Friday last, in small claims court in my home town. It was a simple detainer action which my partner was hired to administer. The lease was solid, the owner kept great records, and the Defendant was Pro Se. Nothing to it, right?

That’s what we expected. The Plaintiff claimed damages in an amount equal to unpaid rent plus costs. The Defendant says “I paid rent.” Still this is in the realm of normalcy. People make these claims all the time. You see, when we say “the truth, the whole truth and nothing but the truth”, we don’t really mean it. We only want the pertinent truth and just a snapshot of that. But courts do expect the truth.

I am thoroughly convinced that some degree of perjury is committed every time the court is in session. Most of the time it occurs with things none too important. My favorite is the Defendant, appearing for driving on a suspended licence who swears to the judge he will not drive until he gets them back. That same Defendant usually walks out of court, gets in his car and drives home. But what I witnessed on this day shook me a bit.

You see, the tenant (Defendant) says she paid rent. But she went on to say, “I have proof.” Ok. At this point, my partner is perplexed. She was prepared, she had exhibits, she had witnesses, and she even had a recording of the Defendant stating that rent had not been paid since September. So obviously, this peaked my partner’s interest.

The Defendant proceeds to introduce to the court 4 photocopies of checks that had been sent by her to plaintiff. And deposited in plaintiff’s bank. Now, the Plaintiff does not have a record of these, and they kept great records. They just didn’t exist.

The judge instructs defendant to show the photocopies to Plaintiff’s counsel before presenting to the judge. My partner is 100% blind, but she has impeccable intuition. (not to mention a heightened sense of hearing, which is a topic for another post) She has an assistant who peered over these copies. It took only a brief glance for suspicion to set in. The judge was warned by plaintiff that these appeared to be altered.

Could this really be happening? I began to get nervous for the Defendant. It felt wrong just to watch. I felt that, at any moment, the judge would lay down the papers, rise from his chair, and proceed to reign down a ferocious and inflamed barrage of condemnation on this woman. Usually, in reality, this looks very similar to contempt and jail. (But I like fire and condemnation better!)

Yet, the judge, as calming as the setting sun, asked the parties to stand and be sworn in. Following the ordinary spiel about truth and whole truth came a very emphasized “under penalty of PERJURY!”

The defendant subsequently admitted under oath and on the record that she had a friend “fix up” these documents. She had no explanation as to why. And, to be honest, she did herself a favor by not laboring the court with petty excuses.

Still, I sat in amazement. First, wondering to myself what it must have felt like to knowingly present false documents to a court of law. It almost, and I stress almost, made me feel sorry for her. But second, I could not believe the reaction from the judge. It was as unexpected as the perjury. But in the end, the court may have the last laugh.

The court explained to Defendant that he was going to present this forgery issue to the D.A. and see if the general wanted to pursue criminal charges. So, it seems that Ms. Defendant may have a place to stay after she has to vacate the rental… The county clink!

If you are ever before a court for any reason, just be honest. The truth will come out, and if that happens while you are still the same room with the judge, do not expect to be treated as generously as this woman was!

Brandon J. Cox, esq.
201 West Main Street
Smithville, TN 37166
(615) 597-5297

State Ordered to Pay for Murderer’s Sex-Change Operation

This post is simply an intro into the poll question that I posed below.   The First Circuit of the United States Court of Appeals held on January 17, 2014 that a State must pay for an inmate’s sex-change operation.

See opinion here: http://media.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=12-2194P.01A

If you read through this, the Court found that the Plaintiff, Michelle Kosilek (formerly Robert) suffered from “gender identity disorder”, a disorder recognized by the American Psychiatric Association.  The Court also held that a sex-change operation was “medically necessary” to treat this disorder.  Since the plaintiff is an inmate in the Massachusetts Department of Corrections, the State of Massachusetts must pay for this procedure.

(By the way, this Plaintiff is in prison for murder of ex-wife)

The Plaintiff claimed that failure to provide this “medically necessary” procedure violated plaintiff’s eighth amendment rights.  The Eighth Amendment in this context protects against cruel and unusual punishment.  We can debate as to whether this is cruel and unusual punishment or whether it is necessary but I won’t do that here.  I only ask this simple question:

Should the state be forced to pay for an inmate’s sex-change operation?

“Young lawyers attend the courts, not because they have business there, but because they have no business.”

This quote is by Washington Irving.   He is best known as the author of such short stories as The Legend of Sleepy Hollow and Rip Van Winkle (by the way, the very Rip Van Winkle lives in Tennessee… but that is another story).

I have tried to find the context in which this quote was used, but to no avail.  Mr. Irving apparently studied law and passed the bar in the early 1800s.  That may have been the genesis of this quote.

The message behind the quote is true.  “Baby lawyers” as we are fondly called by the veterans of the legal profession, are often in court every time the door is open.  I certainly have been.  But, not because I had a case or a client to represent.  Rather, I was there soaking in the atmosphere.  You see, law school did a great deal of nothing with respect to preparing me to practice law.  Moot court was a great experience but it is called “moot” for a reason.  It is nothing like the real thing.

Sitting in General Sessions weekly has taught me much in the way of the variety of the law.  Everything that could happen in a small town does, and it finds its way into the General Sessions courtroom.  As an aside, the multiplicity of the people and the creativity of their arguments, makes for an entertaining session.  But I have picked up on other things as well.  Like, the way the Court reacts to certain types of arguments, or how other more seasoned attorneys approach difficult legal issues.  It has truly been a learning experience thus far.

As I gain experience, I find myself with less and less time to sit back and observe.  And I imagine, those days, once passed will no longer be available to me.  Yet, I must disagree with Mr. Irving, in one respect.  Young lawyers attend with no business there, but it does serve a purpose.  The best way to learn anything is to do it.  If you aren’t afforded an opportunity to do it yet, then the next best way of learning is to watch someone who knows what they are doing, do it.  So I shall continue to darken the doors of the courtrooms for as long as I can.

Fighting the Good Fight

I hate to lose. That’s incompatible with the practice of law, or at least doing appointed work. By appointed work I mean cases which the Court appoints me to represent an indigent client. It is great for young attorneys to take such work because of the experience to be gained. And I, like all new attorneys, am really practicing in every sense of the word. I need the experience.

That being said, these cases often come with lousy facts. Facts that, no matter what sugary topping you put on them, are bad facts. On top of that, sort of the cherry on the fecal cake, is the client’s wishes regarding the outcome of the case.  The client is always right, even when they aren’t. It feels like this in practice at least.

My experience to date with such clients has been positive. My clients have been respectful and open to my counsel. However, part of my job is to give options and advise. Once you give a client the option of shooting for the moon, all other possibilities seem to dissipate.  Even so, often celestial goals are often out of reach in reality. But again, the client is always right, and so I fight the good fight.

Losing is not in my nature, its contrary to my very being. Years of competitive sports, namely baseball, are to blame. But I find myself in cases with tenaciously bad facts and insistent clients. The only solution in this math equation of toiletry is losing. Yet I fight the good fight.

That is what advocacy is about in the end. I put forth the best case, the best argument possible for my client. Albeit often a bad case or terrible argument.  In doing so, I stand before the Court preparing to be shot down.  It is inevitable, the barrage of flak that is soon to be heading in the direction of every ill conceived word that has come from my lips.  But, still, I fight the good fight.

Knowing my fate is inevitable does not deter me from the mission. Everyone, no matter their crime or indignation, should be afforded the opportunity to be heard. This is in fact one of the foundations of this great country. We as citizens of the United States are afforded certain rights. We are entitled to the due process of law. That’s why Courts are able to appoint attorneys to those who can’t afford them. Some things in life are so precious, it would be unjust to require an individual to attempt to protect or defend on their own.  That’s where I come in and that’s why I fight the good fight.

I would encourage everyone to read Gideon’s Trumpet by Anthony Lewis.  It’s not a very long book but covers the landmark case of Gideon v. Wainwright and the fight for legal counsel for indigent clients.

Brandon J. Cox, esq.
201 West Main Street
Smithville, TN 37166
(615) 597-5297