Walter Bailey v. County of Shelby ( 2005 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 20, 2005 Session
WALTER BAILEY, ET AL. v. COUNTY OF SHELBY, ET AL.
Direct Appeal from the Chancery Court for Shelby County
No. CH-04-0550-3 D.J. Alissandratos, Chancellor
No. W2005-01508-COA-R3-CV - Filed November 22, 2005
This appeal from a declaratory judgment action requires us to determine whether term limits imposed
on Shelby County Commissioners by the 1994 amendments to the Shelby County Charter, Article
II, section 2.03(G), are permissible under Tennessee Code Annotated § 5-1-210 and, if so, whether
§ 5-1-210 is unconstitutional under the Tennessee Constitution, Article VII, Section 1. We hold that
term limits are permitted as “qualifications” under Tennessee Code Annotated § 5-1-210(4). We
further hold that Tennessee Code Annotated § 5-1-210(4), insofar as it permits county charters to
prescribe the qualifications of members of the county legislative body, is void as unconstitutional
under Article VII, Section 1, of the Tennessee Constitution. We accordingly vacate the judgment
of the trial court, award summary judgment to Plaintiffs/Appellants, and enjoin enforcement of
section 2.03(G) of the Shelby County Charter.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., joined. W.
FRANK CRAWFORD , P.J., W.S., filed a dissenting opinion.
Allan J. Wade, Lori Hackleman Patterson and Brandy S. Parrish, Memphis, Tennessee, for the
appellants, Walter Bailey, Julian Bolton and Cleo Kirk.
Leo Bearman, Jr., Jason A. Strain, Memphis, Tennessee, for the appellees, County of Shelby, Shelby
County Election Commission, Gregory M. Duckett, Richard L. Holden, Nancye E. Hines, O. C.
Pleasant, Jr., and Maura Black Sullivan.
Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Ann
Louise Vix, Senior Counsel, for the Intervenor, State of Tennessee.
OPINION
The facts in this case are undisputed and the issues raised are issues of law. Walter Bailey,
Julian Bolton, and Cleo Kirk (collectively, “Appellants”) are elected members of the Shelby County
Board of Commissioners (“the Board of Commissioners”). They also are candidates, as defined by
Tennessee Code Annotated 2-10-102(3),1 for the Board of Commissioners in the election scheduled
to be held in August 2006. Under Article II, section 2.03(G) of the Shelby County Charter (“the
Charter”), they will be ineligible to be elected to or to hold the office of Commissioner when their
current terms expire.
On March 22, 2004, Appellants filed a declaratory judgment action against the County of
Shelby, the Shelby County Election Commission, Gregory M. Duckett, Richard L. Holden, Nancye
E. Hines, O.C. Pleasant, Jr., and Maura Black Sullivan (collectively, “the County”) in the Shelby
County Chancery Court. In their complaint, Appellants sought a declaration that Article II, section
2.03(G) of the Charter, which imposes a limit of two consecutive four-year terms on the Shelby
County Mayor and Board of Commissioners, is unlawful under Tennessee Code Annotated § 5-1-21-
201, et. seq., and void as unconstitutional under Article VII, Section 1, of the Tennessee
Constitution. They further sought an injunction enjoining the County from enforcing the Charter
provision. The parties stipulated to the facts, filed cross-motions for summary judgment, and
stipulated that the summary judgment hearing could be treated as a non-jury trial on the merits.
The trial court determined that, because having served two consecutive four-year terms
renders a prospective candidate ineligible for office, term limits relate to the qualifications for
holding office. It held, therefore, that the Charter’s imposition of term limits is permissible under
Tennessee Code Annotated § 5-1-210(4). It also determined that Tennessee Code Annotated § 5-1-
210(4) is not invalid under Article VII, Section 1, of the Tennessee Constitution. Accordingly, the
trial court denied injunctive relief and awarded summary judgment to the County on June 23, 2005.
Appellants filed a timely notice of appeal to this Court on June 23, 2005. On June 28, 2005,
Appellants filed a motion in the Tennessee Supreme Court pursuant to Tennessee Code Annotated
1
Tennessee Code Annotated § 2-10-102(3) provides:
“Candidate” means an individual who has made a formal announcement of candidacy or who is
qualified under the law of this state to seek nomination for election or elections to public office, or has
received contributions or made expenditures except for incidental expenditures to determine if one
shall be a candidate, or has given consent for a campaign committee to receive contributions or make
expenditures with a view to bringing about the individual's nomination for election or election to state
public office[.]
Tenn. Code Ann. § 2-10-102(3)(2003 & Supp 2004).
-2-
§ 16-3-201(d),2 requesting that the supreme court assume jurisdiction of the appeal on the grounds
that it is a case of unusual public importance involving constitutional issues. They further moved
the court to grant an expedited appeal in order to assure that the issues would be decided in advance
of the February 16, 2006, filing and qualifying deadlines for the next election. The supreme court
denied Appellants’ motion on July 13, 2005. On July 28, 2005, Appellants filed a motion for an
expedited appeal in this Court. The County consented to the motion, and this Court granted
Appellants’ motion on August 3, 2005.
This Court heard oral argument of the matter on September 20, 2005. We vacate the award
of summary judgment to the County and award summary judgment to Appellants. We additionally
enjoin the County from enforcing section 2.03(G) of the Charter.
ISSUES PRESENTED
The issue raised for our review, as presented by Appellants is:
Whether Shelby County Charter, Article II, § 2.03(G), which provides that no
County Mayor or County Commissioner is eligible to be elected to or to hold their
offices for more than two consecutive four-year terms, is illegal and void because it
contravenes Tennessee Constitution, Article VII, Section 1.
STANDARD OF REVIEW
This issue presented for our review is an issue of law. Our review of a trial court’s
conclusions on matters of law is de novo, with no presumption of correctness. Taylor v. Fezell, 158
S.W.3d 352, 357 (Tenn. 2005). We likewise review the trial court’s application of the law to the
facts de novo, with no presumption of correctness. State v. Thacker, 164 S.W.3d 208, 248 (Tenn.
2005).
2
Tennessee Code Annotated § 16-3-201(d) provides:
(d)(1) The supreme court may, upon the motion of any party, assume jurisdiction over an
undecided case in which a notice of appeal or an application for interlocutory or extraordinary appeal
is filed before any intermediate state appellate court after June 22, 1992.
(2) The provisions of subdivision (d)(1) apply only to cases of unusual public importance in
which there is a special need for expedited decision and which involve:
(A) State taxes;
(B) The right to hold or retain public office; or
© Issues of constitutional law.
Tenn. Code Ann. § 16-3-201(d)(Supp. 2004).
-3-
ANALYSIS
The issue raised for our review, as we perceive it, requires a two-part analysis. First, we must
determine whether Article II, section 2.03(G) (“section 2.03(G)”) of the Charter is permissible under
Tennessee Code Annotated § 5-1-210. This determination turns on whether term limits are a
constitutionally impermissible restriction of the four-year terms to which constitutional officers are
elected, or are an element of qualifications which may be prescribed by the legislature. Second, if
term limits relate to the qualification of a candidate, section 2.03(G) does not does not contravene
the express provisions of § 5-1-210(4) of the Code, and we must determine whether § 5-1-210(4)
violates Article VII, Section 1, of the Tennessee Constitution.
We begin our analysis by noting that, although Appellants rely on various portions of the
Charter in support of their argument, the record does not contain a copy of the Shelby County
Charter. We further note, however, that the parties do not dispute that Shelby County has a charter
form of government, or that in 1994 the Shelby County Charter was amended by referendum of the
voters of Shelby County to include section 2.03(G). The parties also do not dispute that section
2.03(G) provides:
No County Mayor nor any member of the Board of County Commissioners shall be
eligible to be elected to or hold the office of County Mayor or County Commissioner
for more than two consecutive four-year terms. Provided, however, if an individual
is appointed to fill an unfilled term either for Mayor or County Commissioner, this
term shall not be counted as part of the two consecutive elected terms.
Accordingly, we take judicial notice that Shelby County utilizes a charter form of government as
authorized by Tennessee Code Annotated § 5-1-201, et. seq., pursuant to the Tennessee Constitution,
Article VII, Section 1 (“Article VII”); that its Charter became effective on September 1, 1986; and
that the Charter was amended in 1994 to include, inter alia, section 2.03(G). Because it is a
governmental document whose existence is neither in doubt nor disputed and whose contents may
be readily known by all, we additionally can and do take judicial notice of the Shelby County Charter
in its entirety.3
Validity of section 2.03(G) under the Tennessee Code
Article VII, Section 1, of the Tennessee Constitution as amended in 1978 provides:
The qualified voters of each county shall elect for terms of four years a legislative
body, a county executive, a Sheriff, a Trustee, a Register, a County Clerk and an
3
Brannon v. County of Shelby, 900 S.W .2d 30, 33 n.6 (Tenn. Ct. App.1994)(taking judicial notice of the Shelby
County Charter); See City of Memphis v. Int’l Bhd. of Elec. Workers Union, Local 1288, 545 S.W .2d 98, 101 (Tenn.
1976)(taking judicial notice of private acts of the General Assembly authorizing joint city-county agencies in Shelby
County).
-4-
Assessor of Property. Their qualifications and duties shall be prescribed by the
General Assembly. Any officer shall be removed for malfeasance or neglect of duty
as prescribed by the General Assembly.
The legislative body shall be composed of representatives from districts in the
county as drawn by the county legislative body pursuant to statutes enacted by the
General Assembly. Districts shall be reapportioned at least every ten years based
upon the most recent federal census. The legislative body shall not exceed
twenty-five members, and no more than three representatives shall be elected from
a district. Any county organized under the consolidated government provisions of
Article XI, Section 9, of this Constitution shall be exempt from having a county
executive and a county legislative body as described in this paragraph.
The General Assembly may provide alternate forms of county government
including the right to charter and the manner by which a referendum may be called.
The new form of government shall replace the existing form if approved by a
majority of the voters in the referendum.
No officeholder's current term shall be diminished by the ratification of this
article.
Tenn. Const. art. VII, § 1.
Under the Tennessee Constitution, the establishment of a county charter form of government
is permissible only insofar as provided by the General Assembly. County of Shelby v. McWherter,
936 S.W.2d 923, 934 (Tenn. Ct. App. 1996) perm. app. denied (Tenn. Oct. 28, 1996). The General
Assembly has provided for the right of counties to charter as an alternative form of government in
Tennessee Code Annotated § 5-1-201, et. seq. Tennessee Code Annotated § 5-1-210 prescribes the
contents of a county charter and provides:
The proposed county charter shall provide:
(1) For the creation of an alternative form of county government vested with
any and all powers which counties are, or may hereafter be, authorized or required
to exercise under the Constitution and general laws of the state of Tennessee, and any
and all powers and duties of such county which are required or authorized by private
acts effective on the date of ratification of such charter, as fully and completely as
though the powers were specifically enumerated therein;
(2) That such chartered county government shall be a public corporation, with
perpetual succession, capable of suing and being sued, and capable of purchasing,
receiving and holding property, real and personal, and of selling, leasing or disposing
of the same to the extent as other counties;
(3) For a county legislative body, which shall be the legislative body of the
county and shall be given all the authority and functions of the legislative body of the
county being chartered, with such exceptions and with such additional authority as
may be specified elsewhere in this part;
-5-
(4) For the size, method of election, qualification for holding office, method
of removal, and procedures of the county legislative body with such other provisions
with respect to such body as are normally related to the organization, powers and
duties of governing bodies in counties;
(5) For the assignment of administrative and executive functions to officers
of the county government, which officers may be given, subject to such limitations
as may be deemed appropriate or necessary, all or any part of the administrative and
executive functions possessed by the county being chartered and such additional
powers and duties, not inconsistent with general law or the Constitution of
Tennessee;
(6) For the names or titles of the administrative and executive officers of the
county government, their qualifications, compensation, method of selection, tenure,
removal, replacement and such other provisions with respect to such officers, not
inconsistent with general law, as may be deemed necessary or appropriate for the
county government;
(7) For such administrative departments, agencies, boards and commissions
as may be necessary and appropriate to perform the functions of county government
in an efficient and coordinated manner and for this purpose for the alteration or
abolition of existing county offices, departments, boards, commissions, agencies and
functions, except where otherwise provided in this part or prohibited by the
Constitution of Tennessee;
(8) For the maintenance and administration of an effective civil service
system and of county employees' retirement and pension systems and the regulation
of such systems; provided, that nothing in this part or in a charter adopted pursuant
to this part shall impair or diminish the rights and privileges of the existing
employees under civil service or in the existing county employees' retirement and
pension systems. Nothing in this subdivision shall be construed to require any county
to establish a civil service system or to establish and maintain its own retirement and
pension system in the adoption of a charter form of county government;
(9) For the method and procedure by which such charter may subsequently
be amended; provided, that no such amendment shall be effective until submitted to
the qualified voters of the county and approved by a majority of those voters voting
thereon;
(10) For such procedures, methods and steps as are determined to be
necessary or appropriate to effectuate a transition from the existing county
government to the chartered form of county government;
(11) Such terms and provisions as are contained in any private act with
respect to any county owned utility supported by its own revenues and operated,
administered and managed pursuant to such private act; provided, that such terms and
provisions of the charter may subsequently be amended pursuant to subdivision (9);
and
-6-
(12) That the duties of the constitutional county officers as prescribed by the
general assembly shall not be diminished under a county charter form of government;
provided, that such officers may be given additional duties under such charters.
Tenn. Code Ann. § 5-1-210(1998).
The Tennessee Code mandates that a county charter must provide for a legislative branch.
Tenn. Code Ann. § 5-1-210(3). Section 2.03(A) of the Charter provides that the Board of County
Commissioners shall be the legislative branch of Shelby County. The Code also provides that a
county charter shall provide for the “qualification for holding office . . . of the county legislative
body . . . [.]” Tenn. Code Ann. § 5-1-210(4). The trial court determined that the imposition of term
limits is within the purview of “qualification” and that, accordingly, section 2.03(G) of the Charter
did not violate or expand upon the express authority granted by the Code.
Appellants submit that the Code does not authorize the imposition of term limits. At oral
argument, Appellants particularly emphasized their position that term limits are not a “qualification”
as anticipated by the §5-1-210(4), but rather are an inherent part of the “terms” of constitutional
officers prescribed by Article VII. They further submit that Article VII expressly rejects limitations
on the number of terms a constitutional officer may serve. Appellants contend that, because Article
VII provides that county legislative bodies shall be elected for “terms of four years,” any limitation
on the number of consecutive terms is constitutionally invalid. We disagree.
Article VII mandates that the enumerated constitutional officers shall be elected by the
qualified voters of each county, and that they shall be elected to four-year terms. Contrary to
Appellants’ argument, the plural “terms” does not mandate that each officer shall be entitled to be
elected to more than one term. Rather, the duration of each term to which each officer is elected
shall be four years. A limitation on the number of terms an officer may serve consecutively does not
alter the duration of the term for which s/he is elected.
A term is “[a] fixed and definite period of time[.]” Black’s Law Dictionary 1470 (6th ed.
1990). A term of office is “the period during which elected officer or appointee is entitled to hold
office, perform its functions, and enjoy its privileges and emoluments.” Id. at 1471. Once elected,
a constitutional officer is entitled to serve one term of four years and may be removed only “for
malfeasance or neglect of duty as prescribed by the General Assembly.” Tenn. Const. art. VII, § 1.
A qualification, on the other hand, is [t]he possession by an individual of the qualities,
properties, or circumstances, natural or adventitious, which are inherently or legally necessary to
render him eligible to fill an office or to perform a public duty or function.” Black’s Law Dictionary
1241 (6th ed. 1990). Section 2.03(G) of the Charter provides that a person shall not be eligible to
stand for election or to hold the office of County Mayor or County Commissioner for more than two
consecutive four-year terms. Thus, an individual who has been elected to two consecutive four-year
-7-
terms possess an adventitious quality or circumstance which renders him/her ineligible to stand for
a third consecutive term.
We agree with the trial court that term limits fall squarely within “qualification” as used in
§ 5-1-210(4) of the Code. Under section 2.03(G), a mayor or member of the Board of
Commissioners who has served two consecutive four-year terms is ineligible, or disqualified, from
holding office for an additional consecutive term. Whether s/he will be entitled to serve even a
second consecutive four-year term is determined by the will of the people; there is no entitlement
to additional terms.
Tennessee Code Annotated § 5-1-210(4) expressly stipulates that the charter of a county
operating under a charter form of government shall prescribe the qualifications for holding office in
the legislative body. Although § 5-1-210 does not expressly authorize that charters may alter the
qualifications prescribed by the General Assembly for traditional Article VII forms of government,
such authority is implied by a plain reading and liberal construction of the provision. See Southern
Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710-713 (Tenn. 2001)(holding:
the General Assembly’s grant to a local authority of comprehensive governmental power that neither
enumerates the powers nor expressly limits the scope of authority, such as the comprehensive grant
of power seen in the charter provisions contained in Tennessee Code Annotated § 5-1-201, et. seq.,
will be liberally construed.) Accordingly, section 2.03(G) of the Charter does not violate Tennessee
Code Annotated § 5-1-210.
CONSTITUTIONALITY OF TENNESSEE CODE ANNOTATED § 5-1-210(4)
We next turn to whether term limits as prescribed by section 2.03(G) and authorized by
the express provisions of Tennessee Code Annotated § 5-1-210(4) are constitutionally invalid.
Appellants contend that section 2.03(G) violates Article VII for two reasons. First, they
contend that the members of the Board of Commissioners are constitutional officers and that
because term limits are an element of “terms” as utilized in the first sentence of Article VII,
Article VII provides a blanket prohibition on term limits. Accordingly, they assert that even the
General Assembly may not impose term limits on constitutional officers. Second, Appellants
contend that, assuming term limits fall within the purview of “qualification” and are not
constitutionally invalid per se, under the first paragraph of Article VII, only the General
Assembly may prescribe the qualifications of constitutional officers. They contend, therefore,
that § 5-1-210(4) unconstitutionally delegates the authority to prescribe the qualifications of
constitutionally mandated officers.
The County, on the other hand, asserts that the Charter may limit the terms of the County
Commissioners because the Commissioners are not the constitutional officers enumerated in the
first paragraph of Article VII. The County argues that, because the third paragraph of Article VII
provides for the creation of alternate forms of county government, county governments operating
under such alternate forms are not bound by the provisions and limitations of the preceding
portions of Article VII. The County submits that under the broad authority given to the General
-8-
Assembly to provide for alternate forms of county government, the General Assembly may
delegate the power to prescribe the qualifications for member of the county legislative body to
the alternate county governments.
The County’s argument, in summation, is that paragraph three of Article VII is a stand-
alone provision. The County accordingly asserts that the preceding paragraphs of Article VII are
inapplicable where a county government operates under an “alternate form” of government
pursuant to a statute of the General Assembly. The County alternatively submits that, even if the
members of the Shelby County Board of Commissioners are constitutional officers under Article
VII, section 2.03(G) of the Charter is not invalid because it does not reduce the term of any
constitutional officer.
As noted above, we reject Appellants’ assertion that term limits are antithetical to the
constitutional mandate that constitutional officers must be elected to four-year terms, or that this
mandate requires eligibility to an unlimited number of terms. The imposition of term limits
renders some otherwise qualified candidates ineligible, or unqualified.
Appellants also devote considerable attention to the Journal of the Debates of the
Constitutional Convention of 1977 and to opinions of the Attorney General in support of their
contention that, under Article VII, term limits, however categorized, are unconstitutional per se.
However, whether Article VII provides a blanket prohibition against term limits, including term
limits which might be imposed by the General Assembly acting within its constitutional authority
to prescribe the qualifications of constitutional officers, is not properly before this Court.
It is well settled that “a justiciable controversy . . . between persons with adverse
interests” must exist to maintain a declaratory judgment action. Parks v. Alexander, 608 S.W.2d
881, 891-92 (Tenn. Ct. App. 1980) perm. app. denied (Tenn. Dec. 1, 1980). No justiciable
controversy exists where only a theoretical question is raised or where the existence of a
controversy depends upon future, hypothetical facts. Id. at 892. The courts have no jurisdiction
to render advisory opinions based on events which may occur in the future. Id. Thus, whether
the General Assembly may impose term limits on constitutional officers is not an issue properly
before this Court in this case.
In light of our holding that term limits are an element of qualifications, two questions
remain. First, whether paragraph three of Article VII can be construed as a stand-alone
paragraph, such that the provisions of the preceding paragraphs are inapplicable to alternate
forms of county government. Second, if paragraph three is not a stand-alone provision and if
alternate forms of county government must include the officers enumerated in the first paragraph
of Article VII, whether Tennessee Code Annotated § 5-1-210(4) impermissibly delegates
authority to the Charter to prescribe the qualifications of the Shelby County Commissioners.
We accordingly turn to whether the members of the Shelby County Board of
Commissioners are constitutional officers under Article VII, Section 1, of the Tennessee
-9-
Constitution. The County relies on Leech v. Wayne County, 588 S.W.2d 270 (Tenn. 1979), and
Tennessee ex rel. Maner v. Leech, 588 S.W.2d 534 (Tenn. 1979), for the proposition that the
members of legislative bodies in counties operating under an alternate form of government are
not the constitutional officers discussed in paragraph one of Article VII, officers whose
qualifications shall be prescribed by the General Assembly. We agree with the County’s
argument that Leech v. Wayne County and Maner v. Leech affirm that various forms of county
government are constitutionally permitted under Article VII. The Supreme Court has noted:
It is evident that, in broad form, our Constitution now provides for three types of
county government:
a. Article VII government wherein the basic units of government are the county
executive and the county legislative body.
b. A consolidated form of government commonly known as Metropolitan or
"Metro." See Article XI, Section 9, last paragraph. Any county having such a
government is exempt from Article VII government.
c. An alternate form of government either chartered or unchartered created by the
General Assembly. Under this proviso the legislature is specifically authorized to
create diverse forms of county government without regard to the general type
established in Article VII.
When the legislature authorizes any deviation from Article VII government its
action must be ratified by the people in a referendum called for that purpose.
Tennessee ex rel. Maner v. Leech, 588 S.W.2d at 537 (footnote omitted). We disagree with the
County, however, that Maner v. Leech stands for the proposition the members of the Board of
Commissioners are not members of the legislative body discussed in Article VII, paragraph one,
and that paragraph three must be read as a stand-alone provision. To so conclude would be
tantamount to concluding the alternate forms of county government envisioned by paragraph
three, forms which are neither defined nor limited in number, may eliminate the constitutional
officers mandated by paragraph one of Article VII.4
That at least three forms of government are constitutionally permitted does not necessitate
a conclusion that some of the forms may dispense with the constitutional officers mandated in
the first sentence of Article VII. The third paragraph of Article VII, as amended in 1978, grants
the General Assembly “very broad powers and discretion with respect to the structure of local
4
The County asserts that the Charter could not eliminate the Board of Commissioners because Tennessee Code
Annotated § 5-1-210(3) expressly mandates that a county charter shall provide for a county legislative body. This is true.
However, we note that § 5-1-210 does not likewise provide for the other constitutional officers listed in Article VII. If,
as the County asserts, paragraph three of Article VII is a stand-alone provision and alternate forms of county governments
are not constitutionally required to include the officers listed in paragraph one, then, under the County’s logic, charter
county governments could dispense with, for example, the office of Sheriff, which is not expressly provided for in § 5-1-
210. W e find such a result untenable.
-10-
governments[.]” Leech v. Wayne County, 588 S.W.2d at 272 (emphasis added). Accordingly,
“the constitution does not mandate a uniform structure of county governments across the state. It
specifically authorizes legislation creating different forms of local organization.” Id.(emphasis
added).
Form, moreover, is the “[a]ntithesis of ‘substance.’” Black’s Law Dictionary 651 (6th ed.
1990). Form relates to the “legal or technical manner or order to be observed.” Id. Although the
third paragraph of Article VII grants the General Assembly broad authority to provide for
alternate forms or structures of county government, it does not eradicate the substantive
requirements provided in the preceding portions of Article VII. The assertion that alternate
forms of county government anticipates that these governmental structures may not include the
constitutional officers named in the first sentence of the article is not supported by the language
of Article VII or the case law.
The plain language of Article VII provides for at least three distinct county governmental
structures. As the supreme court observed in Maner v. Leech and Leech v. Wayne County,
Article VII provides for: traditional Article VII county governments; Article XI, Section 9,
consolidated governments; and Article VII “alternate forms” of government, including charter
governments. An examination of Article VII’s treatment of the second form of government,
which is distinctly and separately provided for in Article XI, Section 9, of the Tennessee
Constitution, illustrates that, unless expressly excepted, each of the three forms of government
must substantively include the constitutional officers designated in paragraph one.
The second paragraph of Article VII expressly exempts counties operating under an
Article XI, Section 9 home-rule consolidated form of government from having a county
executive and county legislative body, two of the constitutional officers mandated in paragraph
one. This express exemption necessarily implies that, unless otherwise provided in Article XI,
the remaining constitutional officers must be included in an Article XI, home-rule form of county
government. Any contrary construction would render the express exemption superfluous. The
third paragraph of Article VII, however, contains no like exemption for counties operating under
an alternate or charter form of government.
The proposition that county governments operating under a form of government other
than the traditional form may eliminate the constitutional officers also is unsupported by the case
law. In Metropolitan Government of Nashville and Davidson County v. Poe, 383 S.W.2d 265(Tenn. 1964), the Tennessee Supreme Court considered this proposition in the context of the
consolidated government of Nashville and Davidson County, which operates as a consolidated
home-rule government under a metropolitan charter pursuant to Article XI, Section 9 of the
Tennessee Constitution. In that case, the court upheld a charter provision transferring some
duties of the county sheriff to the Nashville chief of police. Metro. Gov’t of Nashville and
Davidson County, 383 S.W.2d at 273. In so holding, the court noted that although the office of
sheriff is a constitutional one, the duties of the sheriff are prescribed by the General Assembly by
statute. Id. The court opined that, in light of the purpose of the consolidated form of government
-11-
to “eliminate duplication and overlapping of duties and services by which economic savings to
taxpayers will be realized,” there was no “constitutional infirmity against” transferring a duty
from the sheriff to the chief of police. Id. at 276-77.
The supreme court expressly rejected, however, the proposition that a charter government
organized pursuant to Article XI, Section 9, could eliminate the constitutional office of sheriff.
The court stated:
Article 7, Section 1 of the Constitution of Tennessee provides that 'There shall be
elected in each County, by the qualified voters therein, one Sheriff, one Trustee,
one Register;' etc. In the Constitution of 1796, Article 6, Section 1, it was
provided that 'There shall be appointed in each county, by the county Court, one
sheriff, one coroner, one trustee', etc.
In the Constitution of 1834, by Article VII, Section 1, it was provided that 'There
shall be elected in each County, by the qualified voters therein, one Sheriff, one
Trustee, one Register', etc.
It is obvious that express provisions have been made in all three Constitutions
adopted by the voters of Tennessee for the office of Sheriff, and any language that
may have been employed in any prior decisions of this Court, and particularly in
Robinson v. Briley, supra, [374 S.W.2d 382 (Tenn. 1963)] from which it might be
remotely concluded that we held the office of Sheriff or any other constitutional
office could be or was abolished by the Charter was a mere inadvertence and not
meant to be a holding of this Court.
The only method by which the Constitution may be amended is set out in Article
11, Section 3 of the Constitution itself.
Id. at 268.
Metropolitan Government of Nashville and Davidson County concerned the charter of a
county operating under the second type of county government, the type recognized in paragraph
two of Article VII, Section 1 and organized pursuant to Article XI, Section 9. However, the
reasoning of the supreme court in that case is equally applicable here. Although it permits
alternate forms of county governments other than and in addition to the traditional form and that
formed pursuant to Article XI, Section 9, Article VII continues to expressly provide for certain
constitutional officers. The pertinent part of Article VII currently provides: “The qualified
voters of each county shall elect for terms of four years a legislative body, a county executive, a
Sheriff, a Trustee, a Register, a County Clerk and an Assessor of Property.” Tenn. Const. art.
VII, § 1. There is nothing in the case law to support the contention that an alternate structure of
county government could eliminate the constitutional officers substantively required by Article
VII, Section 1 of the Tennessee Constitution.
-12-
We also observe that Tennessee Code Annotated § 5-1-210(12) implicitly recognizes that
paragraph three of Article VII is not a stand-alone provision, and that the constitutional officers
named in paragraph one of Article VII may not be eliminated from county government. When
the language of a statute is clear, we must utilize the plain, accepted meaning of the words used
by the legislature to ascertain the statute’s purpose and application. If the wording is ambiguous,
we must look to the entire statutory scheme and at the legislative history to ascertain the
Legislature’s intent and purpose. We must construe statutes in their entirety, neither constricting
nor expanding the legislature’s intent. In so doing, we assume that the legislature chose the
words of the statute purposely, and that the words chosen “convey some intent and have a
meaning and a purpose” when considered within the context of the entire statute. Eastman
Chemical Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004)(citations omitted).
Section 5-1-210(12) of the Tennessee Code mandates that a county charter must provide
“[t]hat the duties of the constitutional county officers as prescribed by the general assembly shall
not be diminished under a county charter form of government; provided, that such officers may
be given additional duties under such charters.” Tenn. Code Ann. § 5-1-210(12)(1998). A plain
reading of this subsection compels a conclusion that county governments must include the
constitutional officers whose statutorily defined duties may not be diminished by the charter.
These constitutional officers are those prescribed by Article VII.
Finally, although we are neither persuaded by nor rely on it for our determination here,
we note that Shelby County itself has recognized that its charter form of government represents a
structural organization, and that its elected county officers include constitutional officers. The
Introduction to the Charter states:
The Charter contains a strong prohibitionary section which, among other
things, prevents its use in any way to . . . diminish the duties of the elected
constitutional officers of Shelby County. (Emphasis added.)
....
It is appropriate that, after over 180 years of existence, the County replace
the present structure of County Government, as it has evolved, with a totally
responsive, responsible and modern structure. (Emphasis added.)
Additionally, section 2.02 of the Charter provides: “The Legislative Branch is vested with all
other powers of the county not specifically, or by necessary implication, vested in some other
official of the County by the Constitution or by statute not inconsistent with this Charter.”
Section 6.04, furthermore, provides: “The duties of the constitutional County officers as
prescribed by the general assembly shall not be diminished under this Charter[.] (Emphasis
added.)
-13-
There is nothing in the language of paragraph three of Article VII to indicate that it
should be read as a stand-alone paragraph such that the provisions of the preceding paragraphs
are inapplicable to alternate forms of government. Article VII contains neither an express nor
implied provision that alternate forms of county government, forms which, unlike Article XI,
Section 9 consolidated home-rule governments, are entirely undefined, are exempt from having
the constitutional county officers which have been prescribed by every Tennessee Constitution
since 1796. Although the courts have not previously addressed whether the third type of county
government, Article VII alternate-form government, must include the officers constitutionally
mandated for traditional Article VII/type one and Article XI/type two forms of county
government, that it may not is unsupported by a plain reading of Article VII and the reasoning of
the supreme court in Metropolitan Government of Nashville and Davidson County. In the
absence of an express exemption like that provided in paragraph two of Article VII for Article
XI, Section 9 consolidated governments, this Court is loathe to disturb a historical Tennessee
constitutional mandate.
Having concluded that alternate forms of county government must include the
constitutional officers named in Article VII, we next turn to whether Tennessee Code Annotated
§ 5-1-210(4) unconstitutionally delegates the authority to prescribe the qualifications of
constitutional officers. Appellants assert that it does. The County, on the other hand, relies on
Southern Constructors, Inc. v. Loudon County Board of Education, 58 S.W.3d 706 (Tenn. 2001),
for the proposition that it does not. The County also asserts that, because paragraph three of
Article VII is a stand-alone provision which does not vest the authority to prescribe the
qualifications of elected officials of alternate forms of government in any particular entity, the
General Assembly may delegate this authority to the alternate government.
As discussed above, we reject the County’s argument that paragraph three of Article VII
is a stand-alone paragraph. Accordingly, we reject the County’s argument that, because
paragraph three does not expressly state who shall prescribe the qualifications of the county
officers in an alternate form of government, the General Assembly may delegate this authority to
the Charter. We also reject the County’s assertion that, assuming alternate forms of county
government must include the officers named in paragraph one of Article VII, section 2.03(G) of
the Charter is not unconstitutional because it does not diminish the duties of any constitutional
officer. This assertion is irrelevant to whether the General Assembly constitutionally may
delegate its Article VII authority to prescribe the qualifications of members of county legislative
bodies.
We begin our analysis by noting that when considering the constitutionality of a statute,
we start with the presumption that acts by the General Assembly are constitutional. Osborn v.
Marr, 127 S.W.3d 737, 741 (Tenn. 2004). As the County asserts, and as we have noted above,
Southern Constructors recognized that a general provision granting “comprehensive
governmental power to the local authority without either enumerating the powers or expressly
limiting the scope of authority . . . [will] be liberally construed.” Southern Constructors, 58
S.W.3d at 713(citations omitted; emphasis in the original). As the Southern Constructors court
-14-
further noted, Article VII, Section 1 and Tennessee Code Annotated §§ 5-1-201 to 5-1-214 are
examples of a comprehensive grant of power. Thus, counties operating under a charter form of
government are not “strictly limited to those powers otherwise granted by the General Assembly,
and they possess broad authority for the regulation of their own local affairs.” Id. We do not
find this particularly helpful, however, where in § 5-1-210(4) the General Assembly has
expressly granted the authority to prescribe the qualifications of the members of the county
legislative bodies to the local government. No liberal construction of the comprehensive grant
contained in § 5-1-201, et. seq., is necessary.
Additionally, although paragraph three of Article VII vests broad authority in the General
Assembly to structure county governments, we do not believe the supreme court’s reasoning in
Southern Constructors stands for the proposition the General Assembly may delegate its
authority to prescribe the qualifications of the constitutional county officers. In Southern
Constructors, the supreme court addressed whether a county school board had the authority to
arbitrate a dispute with a contractor. The Southern Constructors court engaged in a lengthy
analysis of the Dillon Rule, a judicially created rule of statutory construction under which courts
construe statutes granting authority to local governments strictly and narrowly. Id. at 710. The
court “retain[ed] Dillon’s Rule, subject to its exceptions, as a rule of construction to determine
the scope of local governmental authority.” Southern Constructors, Inc. v. Loudon County Bd. of
Educ., 58 S.W.3d 706, 714 (Tenn. 2001). As noted above, the court recognized an exception
where the General Assembly grants comprehensive power, such as that granted by Tennessee
Code Annotated §§ 5-1-201 to 5-1-214, to a local authority. Id. at 713. Finding no “expressed
intention by the General Assembly to confer general powers upon county boards of education or
to have the expressed powers broadly construed,” the court applied the Dillon Rule in Southern
Constructors. Id. at 715. Nevertheless, the court concluded that the power of the school board to
arbitrate its dispute with Southern Constructors was fairly implied by the express powers to
contract provided by Tennessee Code Annotated § 49-2-203. Id. at 716.
In examining the circumstances under which Dillon’s Rule may not apply, the Southern
Constructors court addressed the authority of the General Assembly to delegate its powers to
other entities. The court noted that the General Assembly may delegate its authority under two
circumstances: “when the Constitution itself authorizes the delegation and when the delegation
is ‘sanctioned by immemorial usage originating anterior to the Constitution and continuing
unquestioned thereunder.’” Id. at 712 n.3 (quoting Kee v. Parks, 283 S.W. 751, 753
(1926)(quoting Wright v. Cunningham, 91 S.W. 293, 297-98)). In the case now before us, there
can be no argument that the General Assembly’s delegation of authority to charter county
governments found in Tennessee Code Annotated 5-1-210(4) is sanctioned by “immemorial
usage.” Thus, we turn to whether the constitution itself authorizes the General Assembly to
delegate its authority to prescribe the qualifications of the constitutional officers to the Charter.
Article VII provides, “[t]heir qualifications and duties shall be prescribed by the General
Assembly.” Tenn. Const. art. VII, § 1 (emphasis added). The General Assembly has prescribed
the qualifications for the members of county legislative bodies in Tennessee Code Annotated § 5-
-15-
5-102. When used in the constitution, the word “shall” generally is construed as being
mandatory rather than directive. West Tenn. Motor Exp., Inc. v. Tennessee Pub. Serv. Comm’n,
514 S.W.2d 742, 746 (Tenn. 1974). In order to be valid, legislation must comply with mandatory
provisions of the constitution. State v. Hailey, 505 S.W.2d 712, 714 (Tenn. 1974). We find
nothing in the language of Article VII that would support the proposition that the General
Assembly’s duty to prescribe the qualifications of constitutional officers is directive or
permissive and not mandatory, or that the General Assembly may delegate this authority.
The supreme court’s analysis of the General Assembly’s authority to delegate its
Tennessee Constitution Article II , Section 3 legislative authority is applicable here. The
supreme court has opined that, although the General Assembly may delegate to an administrative
agency the power to implement the policies expressed by a particular statute, it may not delegate
authority that is “purely legislative.” Gallaher v. Elam, 104 S.W.3d 455, 464 (Tenn.
2003)(citations omitted). In delegating the power to implement law, moreover, the General
Assembly must do so in a statute that “contains sufficient standards or guidelines to enable both
the agency and the courts to determine if the agency is carrying out the legislature’s intent.” Id.
(quoting Bean v. McWherter, 953 S.W.2d 197, 199 (Tenn. 1997)). Thus, the General Assembly
may not delegate its Article II constitutional authority to make law, but only the sufficiently
defined power to facilitate implementation of the law as intended. The Attorney General of
Tennessee, moreover, also has opined that the General Assembly may not delegate its duty to
prescribe the qualifications of constitutional officers. Tenn. Op. Atty. Gen. No. 02-037, 2002
WL 531163 (Tenn.A.G.). There is simply no support in either the Tennessee Constitution or the
case law for the proposition that the General Assembly may delegate its Article VII authority to
prescribe the qualifications of members of a county legislative body.
Insofar as it permits the qualifications of the constitutional officers to be prescribed by a
county charter, Tennessee Code Annotated § 5-1-210(4) is unconstitutional. In accordance with
Tennessee Code Annotated § 1-3-110,5 we may elide unconstitutional portions of a statute and
leave the remainder intact where we conclude that the General Assembly would have enacted the
statute with the unconstitutional provision omitted. In re Swanson, 2 S.W.3d 180, 189 (Tenn.
5
Tennessee Code Annotated § 1-3-110 provides:
It is hereby declared that the sections, clauses, sentences and parts of the Tennessee Code are
severable, are not matters of mutual essential inducement, and any of them shall be exscinded if the
code would otherwise be unconstitutional or ineffective. If any one (1) or more sections, clauses,
sentences or parts shall for any reason be questioned in any court, and shall be adjudged
unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining
provisions thereof, but shall be confined in its operation to the specific provision or provisions so held
unconstitutional or invalid, and the inapplicability or invalidity of any section, clause, sentence or part
in any one (1) or more instances shall not be taken to affect or prejudice in any way its applicability
or validity in any other instance.
Tenn. Code Ann. § 1-3-110 (2003).
-16-
1999). Accordingly, we elide the phrase “qualifications for holding office” from Tennessee Code
Annotated 5-1-210(4).
CONCLUSION
The power to alter or amend the Constitution of Tennessee belongs not to the General
Assembly, but to the people. Illustration Design Group, Inc. v. McCanless, 454 S.W.2d 115,
118 (Tenn. 1970). The judicial branch of government, moreover, has a duty to determine the
substantive constitutionality of statutes, ordinances, and like measures. City of Memphis v.
Shelby County Election Com'n, 146 S.W.3d 531, 536 (Tenn. 2004). In so doing, it may not
amend the constitution. The Tennessee Constitution may be amended only as provided in Article
XI, Section 3 of the constitution itself. “A change effected in any other way is revolutionary, and
lies wholly outside the domain of law.” Derryberry v. State Bd. of Election Commissioners, 266
S.W. 102, 105 (Tenn. 1924)(citations omitted).
Article VII, Section 1 of the Tennessee Constitution stipulates that “[t]he qualified voters
of each county shall elect for terms of four years a legislative body, a county executive, a Sheriff,
a Trustee, a Register, a County Clerk and an Assessor of Property.” Although in 1978 the people
of Tennessee amended the constitution and authorized the General Assembly to provide for
alternate forms of county government, the people did not authorize the substantive elimination of
the traditional constitutional officers from county government. Paragraph three of Article VII,
Section 1, as amended, therefore, cannot be read as a stand-alone provision in the absence of
language which excepts it from the remainder of the section. In the absence of language which
excerpts it from the remainder of the Article, to construe paragraph three of Article VII, Section 1
as a stand-alone provision is inconsistent with the wording of the Article in its entirety. Thus, the
members of Shelby County’s legislative body, the Shelby County Board of Commissioners, like
the Sheriff and the other Article VII officers, are constitutional officers.
The dissent asserts that this conclusion is “somewhat ludicrous” because it “say[s] that
the County can have a new form of government but it is controlled by the old form of
government that the new form replaces.” We respectfully disagree with the dissent that our
holding compels such a reading of Article VII, Section 1. As noted above, paragraph three
permits the General Assembly to provide for an unlimited number of “forms” of county
government upon approval by a majority of the voters in a referendum, and it permits the General
Assembly to provide for the manner by which such a referendum may be called. There is noting
in the wording of paragraph three, however, that indicates that this new “form” may be so distinct
as to eliminate the constitutional officers specifically mandated by paragraph one, and there is
nothing in the language of paragraph one to indicate that paragraph one does not apply to the
remainder of Section 1. That the constitution requires the inclusion of a legislative body, a
county executive, a sheriff, a trustee, a register, a county clerk, and an assessor of property does
not stand for the proposition that an alternate form of government is “controlled” by the old form.
It simply requires that the new form include a legislative body of some type and six specific
officers. We cannot agree with the dissent that this requirement “controls” the form that an
-17-
alternate government might take. Indeed, the duties and qualifications of these officers within
the alternate form, and the remainder of the officers and employees, structure, operation, and
method of amendment of an alternate form are entirely uncontrolled by the very limited mandate
of paragraph one.
As the dissent agrees, the imposition of term limits by the Shelby County Charter falls
within the penumbra of “qualifications” as utilized in Article VII, Section 1 of the Tennessee
Constitution and Tennessee Code Annotated § 5-1-210(4). Without opining on whether the
General Assembly may impose term limits on members of the Shelby County Board of
Commissioners, we hold that Tennessee Code Annotated § 5-1-210(4) expressly but
unconstitutionally delegates the General Assembly’s Article VII, Section 1 authority to prescribe
the qualifications of members of the county legislative body to counties operating under a charter
form of government. We accordingly elide the phrase “qualifications for holding office” from
Tennessee Code Annotated 5-1-210(4).
HOLDING
In light of the foregoing, the judgment of the trial court awarding summary judgment to
Shelby County is vacated. We award summary judgment to Plaintiffs/Appellants. Accordingly,
Shelby County is enjoined from enforcing section 2.03(G) of the Shelby County Charter. Costs
of this Appeal are taxed to the Appellees, County of Shelby, Shelby County Election
Commission, Gregory M. Duckett, Richard L. Holden, Nancye E. Hines, O.C. Pleasant, Jr., and
Maura Black Sullivan.
___________________________________
DAVID R. FARMER, JUDGE
-18-