RE: Local approval of general laws of local application
We write to bring to your attention what we believe is an oversight in the drafting of general bills of local application. What is being overlooked is the constitutional requirement that acts local in form or effect be approved locally before the act can take effect. Several general acts of local application passed in the 2007 session, and not one required in the act itself that it be approved locally. Although this constitutional issue is not often contested, we feel that this is an issue that could cause these acts, if contested, to be ruled invalid.
The constitutional provision requiring local approval of private acts and acts local in form or effect is in Article XI, § 9:
. . . [A]ny act of the General Assembly private or local in form or effect applicable to a particular county or municipality . . . shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.
Several of the acts passed in 2007 and in past years have required municipalities or counties to implement the act by passing an ordinance or resolution by a two-thirds vote, and, leaving aside the obvious lack of a requirement that the act itself must receive approval, it might be argued that this satisfies the local approval requirement. In most cases, however, the requirement for a two-thirds vote to pass an ordinance or resolution is different from the two-thirds vote required to approve a local act.
Municipalities, for example, operate under differing charter and general law provisions, but, in the absence of direction from one of these sources, the question whether an ordinance or resolution has received a two-thirds vote would be determined by rules of procedure adopted by the governing body. Most municipalities use Robert’s Rules of Order. Under these rules, a two-thirds vote is two-thirds of those voting when there is a quorum. Counties operate generally under Tennessee Code Annotated, § 5-6-107, under which a two-thirds vote would be two-thirds of the sitting members.
In contrast to these rules, Tennessee courts have prescribed that a two-thirds vote to approve a local act means a two-thirds vote of the total authorized membership of the governing body. The constitutional requirement is not satisfied by a two-thirds vote of those present, a two-thirds vote of those voting, or even a two thirds vote of the sitting members. See State ex rel. Doyle v. Torrence, 310 S.W.2d 425 (Tenn. 1958), and Kesterson v. McKee, 527 S. W.2d 144 (Tenn. App. 1975).
The constitutional requirement for local approval of local acts was added in 1953 as a protection for local governments. Now local governments find themselves accepting extra authority, and thus relinquishing this protection, through local acts that do not require local approval. This might make it more difficult for local governments to object if some members of the General Assembly decide sometime in the future to restrict local authority, or do other harmful things, through local acts that do not require local approval.
The constitutional requirement appears to us clear and relatively easy to comply with. We urge you to try to ensure that private acts and general laws local in effect conform to this requirement, and we offer our help in doing this.
MUNICIPAL TECHNICAL ADVISORY SERVICE
MTAS Legal Consultant
COUNTY TECHNICAL ASSISTANCE SERVICE
CTAS Legal Consultant
cc: Mike Garland, Executive Director, CTAS
Bob Schwartz, Executive Director, MTAS