|Legal Opinion: |
Text of Document: DATE: October 7, 2008
FROM: Sid Hemsley, MTAS Legal Consultant
SUBJECT: Basic Introduction of Charter Commission Candidates to the Functions and Duties of the Charter Commission Elected in November, 2008
PURPOSE OF INTRODUCTION AND PUBLICATIONS SUPPORTING IT
The City is going to elect a charter commission on the date of the state general election in November, 2008. In connection with that election, I am attaching four publications that I think will help the new charter commission and the general public understand both the election itself, and the duties and functions of the new charter commission.
- Article XI, Section 9 of the Tennessee Constitution;
- Hobday, Victor, An Analysis of the 1953 Tennessee Home Rule Amendments, 2nd Ed., MTAS, 1976;
- Hemsley, Sidney D., Getting to Know (and maybe love) Your Municipal Charter; Revised June, 2008, MTAS;
- Tennessee Attorney General's Opinion No. 06-124.
THE LEGAL SOURCE OF HOME RULE IN TENNESSEE
The legal source of home rule for municipalities in Tennessee is found in Article XI, Section 9 of the Tennessee Constitution. Article XI, Section 9 reflects what are commonly called the home rule amendments to the Tennessee Constitution, adopted by the voters of the state in 1953. Parts of those amendments govern the adoption of home rule, and the amendment of home rule charters, by Tennessee municipalities. Other parts of them govern the local approval of private acts pertaining to non-home rule municipalities passed by the General Assembly, and other limitations on the power of the General Assembly over the affairs of such municipal governments. But here we will be principally concerned with those parts of Article XI, Section 9 that allow municipalities to adopt home rule, and to amend home rule charters. Fourteen Tennessee cities have adopted home rule: Chattanooga, Clinton, East Ridge, Etowah, Johnson City, Knoxville, Lenoir City, Memphis, Mt. Juliet, Oak Ridge, Red Bank, Sevierville, Sweetwater, and Whitwell.
THE IMMEDIATE MEANING OF HOME RULE
What is the immediate meaning of home rule? The most immediate things it means are that it can adopt and amend its own charter without the approval of the Tennessee General Assembly, and that it can amend its own charter only by referendum of its voters. In addition, the Tennessee General Assembly cannot pass private acts governing home rule cities. A legal distinction that may have significance to city attorneys of home rule cities, is that Dillon's Rule does not apply to them. In a nutshell, Dillon's Rule is a rule of statutory construction under which doubts about whether a city has a certain power are construed against the city. [See Southern Contractors v. Loudon County Board of Education, 58 S.W.3d (Tenn. 2001).]
THE IMPORTANCE OF THE FOUR PUBLICATIONS TO THE STUDY OF HOME RULE IN TENNESSEE
The second publication, by Hobday, exhaustively examines the text and the case law interpreting the 1953 home rule Amendments, until 1976. One could easily assume that a publication that old is obsolete. Such an assumption would be wrong. It is still substantively correct, and to this date has no equal for the study of home rule in Tennessee. Hobday was a long time director of the University of Tennesseee's Municipal Technical Advisory Service (MTAS), and was a serious student of home rule. He anticipated most of the questions that had, and might in the future, be asked pertaining to the text and application of Article XI, Section 9 of the Tennessee Constitution. I am in the process of updating that publication, but outside of some statutory and case law updates, most of the update will involve a comparison of home rule in Tennessee with home rule in other states.
The third publication, by Hemsley, who is also the author of this letter, was recently revised. Its provisions on home rule charters, including their amendment, are basically an abbreviated version of what appears in Hobday's publication, with the addition of selected statutory and case law that affects the application of home rule in Tennessee.
The fourth publication, Attorney General's Opinion 06-124, answers several questions about amending home rule charters, principally the question of whether charter amendment proposals must be submitted individually, or as a unit, to the voters. It concludes that it can be done either way. I agree with that opinion, and from personal knowledge and experience I can say that it is done both ways. There are obvious advantages and disadvantages to both methods.
HOW HOME RULE CHARTERS ARE AMENDED
As both the second and third publications point out, Article XI, Section 9 of the Tennessee Constitution provides three ways a home rule charter can be proposed and formulated for submission to voters in a referendum (which are the only ways that a home rule charter can be amended in Tennessee):
First, by passage of an ordinance by the governing body of the home rule municipality;
Second, by a charter commission established by an act of the Tennessee General Assembly, and elected by the qualified voters of the home rule municipality;
Third, by a charter commission of seven members elected at large in a municipal election held pursuant to a petition of the voters.
The third method is the method that is being used by your City to elect the new charter commission in November, 2008, which will consider and propose amendments to the city's home rule charter.
QUALIFICATIONS, ETC., FOR CHARTER COMMISSION CANDIDATES
AND MEMBERS OF CHARTER COMMISSION
Hobday accurately points to a decision by the Tennessee Supreme Court that held that the third method for amending the charter is " self-executing"; that is, no implementing legislation by the Tennessee General Assembly is required to precede the election of the charter commission. However, the same Tennessee Supreme Court decision held that under this method, the home rule city's governing body could, by ordinance, specify the qualifications for candidates for, and members of, the charter commission. [See Washington County Election Commission v. City of Johnson City, 350 S.W.2d 601 (1961).]
CHOOSING CHARTER COMMISSION MEMBERS AT LARGE
But Article XI, Section 9 of the Tennessee Constitution requires that the members of the Charter Commission be "chosen at large." An interesting question is whether the governing body of the City, or any other home rule city, could provide that members of a future charter commission be elected from districts, at large. The unreported federal case of Operation Rainbow-Push, Inc. v. Shelby County Election Commission, 2006 WL 2435081 (W.D. Tenn.) declared that the answer was yes, observing that "The Court notes the current system explicitly requires at-large voting, and that there is no provision in the Tennessee Constitution that requires at-large candidacy." [At 3]
BROAD AUTHORITY OF MEMBERS OF CHARTER COMMISSION TO MAKE CHARTER CHANGE PROPOSALS
There are no restraints in Article XI, Section 9 of the Tennessee Constitution, on the scope of the charter commissions right to consider and propose home rule charter amendments. But two statutory restraints on home rule amendment questions that appear on the ballot appear in Tennessee Code Annotated, ' 6-53-108(b) and (c):
- Subsection (b): This provision effectively authorizes the governing body of all but one home rule municipality (Memphis) to propose a home rule charter amendment by ordinance to establish, increase or decrease the property tax.
- Subsection (c): Under this provision, the chief financial officer of home rule cities must attach what is commonly called a "fiscal note" on every proposed home rule charter amendment, containing: an estimate of the net cost saving, net cost increase or decrease in yearly revenues, if any, that will occur if the amendment is approved.
Because anyone who reads Tennessee Code Annotated, ' 6-53-108(b) and (c) are probably going to read (a) as well, it needs to be noted here that (a) also authorizes home rule municipalities to adopt private acts that have not been approved by the two-thirds vote required by Article XI, Section 9 of the Tennessee Constitution by petition and referendum. As pointed out above, Article XI, Section 9 of the Tennessee Constitution contains provisions governing home rule cities, but it also contains other provisions governing the passage of private acts by non-home rule cities. One of the ways private acts are approved locally by non-home rule cities is by a two-third vote of the local governing body of the city. Another way is by referendum of the voters of the non-home rule city. As I have pointed out at considerable length in Getting to Know (and maybe love) Your Municipal Charter, pp. 14-19, Tennessee Code Annotated, ' 6-53-108(a) clearly violates Article XI, Section 9 of the Tennessee Constitution, and is therefore unconstitutional.
Needless to say, despite the absence of restraints in Article XI, Section 9 of the Tennessee Constitution on the scope of amendments the charter commission members can consider and propose, charter commission members are restrained by the reality that charter amendments that they may propose can be intercepted by other state and federal laws governing the subject of the charter amendment or amendments in question. It is clearly the law in Tennessee that the General Assembly can pass general laws that apply to all municipalities, including home rule municipalities. Likewise, many federal laws apply to all municipalities, including home rule municipalities. For example, Muhammad v. City of Memphis, W.D. Tenn. Case No 88-2899, 90-2093 and 91-2139, the same court that handed down Operation Rainbow- Push, Inc., above, held that the at large election system used by the City of Memphis under its home rule charter, violated Section 2 of the Federal Voting Rights Act and enjoined the city from using that election system.
ORGANIZATION AND MEETINGS OF CHARTER COMMISSION
As Washington County Election Commission, above, also points out, Article XI, Section 9 of the Tennessee Constitution contains no provisions governing the qualification of charter commission candidates or members, when and where the charter commission shall meet, and to whom it reports its proposals, but declares that Article XI, Section 9 contains a provision that it
"shall be the duty of the legislative body of such municipality to publish any proposal so made and to submit the same to its qualified voters," etc. So, the plain implication is that the commissioners shall report their proposals to the City's legislative body. [At 605.]
That provision of Article XI, Section 9 of the Tennessee Constitution, applies to proposals made by all three methods of amending the charter. But with respect to the third method of amending the charter with which the City is concerned, there is a distinction between reporting the charter commissions proposals to the city's governing body for the purpose of publishing them and submitting them to the qualified voters, and submitting them for the purpose of obtaining the city governing body's approval of those proposals. No such approval of those proposals by the city's governing body is required to be sought or obtained by the charter commission, although it certainly makes sense for the charter commission to consult with the city's governing body in the course of formulating their proposals.
The City has the advantage of having a number of residents who served on the most recent charter commission, and a charter review commission, with whom MTAS staff worked, and who know a good deal about organizing the work and progress of such commissions.
TIME FRAME FOR CHARTER COMMISSION TO COMPLETE ITS WORK
Under Article XI, Section 9 of the Tennessee Constitution, the charter commission's proposals, if any, must be submitted to "the qualified voters at the first general state election which shall be held at lest sixty (60) days after such publication. "Hobday considers in detail what constitutes a general state election, but they are generally conceded to be the state elections held in August and November of even-numbered years. For that reason, the charter commission will have until August, 2010 or November 2010, to formulate its proposals, less the time required for publication of the proposals and the minimum of 60 days that must pass prior to the referendum on the proposals following the publication of the proposals.
If I can be of further help to you, or to the new charter commission to be elected in November, please let me know.