Metropolitan Government of Nashville and Davidson County, Tennessee v. Davidson County Election Commission

03/25/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 3, 2022 Session
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE ET AL. v. DAVIDSON COUNTY ELECTION
COMMISSION
Appeal from the Chancery Court for Davidson County
No. 21-0433-IV Russell T. Perkins, Chancellor
___________________________________
No. M2021-00723-COA-R3-CV
___________________________________
At issue is an election commission’s decision to set an election on proposed referendum
measures to a local government’s charter. In pre-election litigation over this decision, the
trial court concluded, for various reasons, that the election commission’s decision to hold
the election should be reversed. The election commission now urges this Court to reinstate
its decision to hold an election and to remand this matter to it with instructions to schedule
a referendum election at a future date pursuant to Tennessee Code Annotated section 2-3-
204(a). As explained in more detail in this Opinion, we conclude that this requested relief
is not proper under the cited statute. Moreover, because this appeal cannot serve as a
vehicle to grant the election commission any relief, we consider the matter moot.
Notwithstanding this posture in the case, we do find it appropriate, in the exercise of our
discretion, to address one of the specific legal issues presented by this appeal as an
exception to the mootness doctrine. As to that issue, which concerns the interpretation of
a form requirement the local government’s charter places on petitions to amend the charter
by referendum election, we agree with the trial court that the referendum petition at issue
in this case ran afoul of the requirement in dispute.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in
Part; Affirmed in Part; and Remanded.
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT
and W. NEAL MCBRAYER, JJ., joined.
James F. Blumstein and Austin L. McMullen, Nashville, Tennessee, for the appellant,
Davidson County Election Commission.
Wallace W. Dietz, Allison L. Bussell, Lora Barkenbus Fox, Catherine J. Pham, and Robert
E. Cooper, Jr., Nashville, Tennessee, for the appellees, Metropolitan Government of
Nashville & Davidson Co., Mayor of Metropolitan Government of Nashville & Davidson
County, and Finance Director of Metropolitan Government of Nashville & Davidson
County.
Daniel A. Horwitz and Lindsay E. Smith, Nashville, Tennessee, for amicus curiae
Nashville Area Chamber of Commerce and Save Nashville Now.
James Roberts, Nashville, Tennessee, for amicus curiae 4 Good Government.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
This case concerns the decision of the Davidson County Election Commission (“the
Commission”) to hold a referendum election on July 27, 2021, with respect to a petition to
amend the Charter of the Metropolitan Government of Nashville and Davidson County,
Tennessee (“Metro Charter” or “Charter”) sponsored by the group 4 Good Government
(“4GG”). A previous petition sponsored by 4GG was declared deficient in a 2020 decision
by the Davidson County Chancery Court. 4GG’s present petition ostensibly aimed to
correct the prior noted defects and recited that it was “to be voted on by the citizens on
May 28, 2021 or June 14, 2021, whichever is earlier as permitted by Metro Charter §
19.01.” Specifically, it proposed the following amendments:
1. Limit Property Tax Rates – Add to Article 6, § 6.07, Paragraph 5:
“Property Tax Rates shall not increase more than 3% per fiscal year upon
enactment without a voter referendum, pursuant to Tenn. Code Ann. § 2-3-
204. For Fiscal Years 2021-2022 and 2022-2023 the property tax rate(s)
shall revert to Fiscal Year 2019-2020’s tax rate(s), or lower if required by
law. This amendment’s provisions are severable.”
2. Recall Elected Officials – (A) Add to Article 15, § 15.07: “Petitions to
recall elected officials filed after January 1, 2021, under this section shall
contain the signatures and addresses of registered qualified voters in
Davidson County equal to ten (10) percent of the citizens voting in the
preceding Metro general election in the district or area from which the
recalled official was elected. Such Petitions shall be filed with the metro
clerk within seventy-five (75) days of the date the notice is filed. This
amendment’s provisions are severable” (B) Replace existing Article 15, §
15.08, Paragraph 2 with: “A recalled official’s name shall not appear on
the recall ballot, but such official may qualify as a write-in candidate. This
amendment’s provisions are severable.”
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3. Abolish Lifetime or Other Benefits for Elected Officials – Add to Article
18, § 18.05, Paragraph 1: “No elected official shall receive any benefits at
taxpayer expense as a result of holding such elected office without a voter
referendum.”
4. Preserve Voters’ Charter Amendments – Create Article 19, § 19.04:
“Voter-sponsored Charter Amendments approved after January 1, 2021,
shall be amended only by voter-sponsored Petition, notwithstanding any law
to the contrary.”
5. Protect Publicly-Owned Parks, Greenways & Lands – Create Article 18,
§ 18.18: “No portion of a publicly-owned park, greenway, or other real
property shall be transferred or conveyed without 31 votes of Metro Council.
All transfers of interest in real property shall be at fair market value based
on an independent appraisal. Public referendum shall be required for
transfers of interest in such publicly-owned properties valued over
$5,000,000, and for leases exceeding twenty (20) years, unless prohibited by
state law.”
6. Protect Promises to Nashville – Create Article 18, § 18.19: “If a
professional sports team leaves Nashville, or ceases playing professional
games for more than twenty-four (24) consecutive months during the term of
a team’s ground lease, all sports facilities and related ancillary development
related to the defaulting team shall revert to public property, and all related
contracts shall terminate, including land leased from the Nashville
Fairgrounds, and just payment shall be paid, if required by law.”
While 4GG filed the petition with the Metropolitan Clerk in late March 2021, the Clerk did
not certify a copy of the petition to the Commission until May 6, 2021. The Commission
voted on May 10, 2021, to place the petition on the ballot. The following day, the
Metropolitan Government of Nashville and Davidson County, the Metro Mayor, and Metro
Finance Director (collectively “Metro Litigants”) filed a petition for writ of certiorari and
writ of mandamus in the Davidson County Chancery Court.1 The Metro Litigants asserted
a number of infirmities with the proposed Charter amendments, in addition to contending
that general deficiencies existed with respect to the petition itself.
In an order entered on June 22, 2021, the trial court held that a number of the
objections raised by the Metro Litigants were not ripe for pre-election judicial challenge
under City of Memphis v. Shelby County Election Commission, 146 S.W.3d 531 (Tenn.
1
According to the trial court record, the Metro Litigants also asserted other original jurisdiction
claims, and the Election Commission asserted a counterclaim during the course of litigation. These claims
were, however, severed from the instant litigation.
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2004). As the Tennessee Supreme Court generally instructed in that case, “pre-election
challenges to the substantive constitutional validity of referendum measures are not ripe
for determination by a court, while pre-election challenges to the form or facial
constitutional validity of referendum measures are ripe for judicial scrutiny.” Id. at 539.
Despite its finding that some objections to the amendments were not presently ripe for
review under the City of Memphis framework, the trial court nonetheless concluded that
several objections were. It further concluded that several infirmities plagued the
amendments and petition and that the Commission’s decision to place the petition on the
ballot should be reversed. In relevant part, the court’s general conclusions were as follows:
4. The Court agrees with the Metropolitan Government that 4GG’s Petition
did not meet the “prescribe a date” requirement under § 19.01 of the
Metropolitan Charter.
5. The Court agrees with the Metropolitan Government that the “Abolish
Lifetime or Other Benefits for Elected Officials” measure and the “Protect
Promises to Nashville” Amendments are defective in form, confusing to the
electorate, and properly subject to pre-election challenge on this ground.
6. The Court agrees with the Metropolitan Government that the “Limit
Property Tax Rates” Amendment and the “Protect Promise[s] to Nashville”
provision are defective in form and unconstitutional in form under City of
Memphis and 4GG-I.
7. The Court agrees with the Election Commission that certain of the
Metropolitan Government’s specific challenges to the Limit Property Tax
Rates Amendment, the Recall Elected Officials Amendment, Abolish
Lifetime or Other Benefits Amendment, or Protect Promises to Nashville
Amendment relate to substantive constitutionality and are, accordingly, not
ripe for pre-election challenge on those specific grounds.
8. The Court agrees with the Metropolitan Government on the severability
issue and concludes that none of the Amendments can properly be presented
to the qualified voters of Davidson County for referendum election on July
27, 2021.
Certain minor corrections in language were made to certain parts of the trial court’s order
in an “Order of Correction” entered on June 23, 2021, and the Commission thereafter filed
a notice of appeal in this Court on June 25, 2021.2
2
We observe that a separate notice of appeal was also filed in this Court on July 23, 2021, with
specific reference to the June 23, 2021, “Order of Correction.” Whereas a new appeal number was initially
assigned in connection with the second notice of appeal, we consolidated the matters into one appeal in a
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On June 29, 2021, the Commission filed a motion in this Court for “an expedited
briefing schedule and hearing,” while also filing a request with the Tennessee Supreme
Court that it assume jurisdiction over the appeal pursuant to Tennessee Supreme Court
Rule 48 and Tennessee Code Annotated section 16-3-201(d). Of note, four days before
this date, on the same day it filed its notice of appeal concerning the actions taken regarding
its decision to set an election for July 27, the Commission canceled the July 27 election. It
further conditionally reset the election to September 21, 2021. The Commission noted this
information in its motion before the Supreme Court, stating that the resetting had been
“conditioned on authorization from an appropriate court concluding that the Election
Commission acted appropriately in voting to place the proposed amendments on a ballot.”
For their part, the Metro Litigants argued against Supreme Court intervention and
submitted, among other things, that the action was moot:
Worse yet, after its loss at the trial court, the Election Commission
conditionally set the petition for another referendum election on September
21, 2021, far outside the 75- to 90-day timeframe required by state law. Thus,
the conditional September 21 referendum-election date not only fails to
provide a basis for expedited appeal, but it illustrates that this Court cannot
grant the relief requested by Appellant, rendering the case moot.
In an order dated July 9, 2021, the Supreme Court denied the motion to assume
jurisdiction, concluding that extraordinary action to assume jurisdiction was not warranted
in light of the “current totality of the circumstances, including the relevant timeline and the
procedural posture of this case.” (Tenn. July 9, 2021) (order denying motion to assume
jurisdiction). Thereafter, in an order filed July 13, 2021, this Court denied the
Commission’s request for an expedited briefing and hearing schedule.
ISSUES PRESENTED
In the present appeal, the trial court’s findings are vigorously disputed by the parties,
particularly those findings pertaining to “ripeness” under the City of Memphis decision.
The core of this threshold dispute among the parties is reflected in the marked divergence
in how the issues are framed in their appellate briefs. Whereas the Metro Litigants argue
that the trial court properly found several of the petition’s amendments to be defective in
“form” and thus subject to pre-election challenge, the Commission maintains that the trial
court actually relied on, impermissibly, “broad ‘as-applied’ substantive objections” to
block access to a referendum election.
The Commission’s brief specifically presents the following issues for review,
restated verbatim:
per curiam order filed on July 28, 2021.
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1. Whether, consistent with City of Memphis v. Shelby County Election
Commission, a county election commission may rely on substantive
constitutional issues in determining whether to place an otherwise-
qualifying charter-amendment petition on a referendum ballot and
whether the commission’s decision not to consider substantive
constitutional issues can be deemed arbitrary or capricious?
2. Whether, consistent with City of Memphis v. Shelby County Election
Commission, a court, before a referendum election, may, as the Trial
Court did, rely on “as-applied” (as distinct from “facial”) substantive
constitutional challenges of proposed charter amendments to stop an
election that a county election commission has approved and scheduled?
3. Whether, consistent with City of Memphis v. Shelby County Election
Commission, a court may validly characterize an “as-applied” challenge
to the substantive constitutionality/validity of proposed charter
amendments as a challenge to the “form” of the proposed charter
amendments, when a county election commission has approved those
proposed amendments for voter consideration?
4. Whether the Election Commission erred in its interpretation of the terms
of and remedy for a putative violation of the “prescribe-a-date” provision
of the Metro Charter?
5. Whether the Trial Court properly applied severability principles when it
held that valid proposed amendments may not be presented to voters if
even one of multiple, separate charter amendments proposed in a petition
is invalid?
6. Whether there is any material evidence in the record and a rational basis
to support the Election Commission’s decision to place the proposed
Charter amendments on the ballot?
The Metro Litigants, as the Appellees in this appeal, phrase the issues on appeal as follows:
1. Whether the Chancery Court correctly held that defects in 4 Good
Government’s petition to amend the Metropolitan Charter by referendum
election were ripe for judicial review under City of Memphis v. Shelby
Cty. Election Comm’n, 146 S.W.3d 531 (Tenn. 2004).
2. Whether the Chancery Court correctly held that the Charter amendment
petition failed to “prescribe a date” for the referendum election as
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required by Metropolitan Charter § 19.01 and thus could not be placed on
the ballot.
3. Whether the Chancery Court correctly held that proposed Charter
amendments 1 (“Limit Property Tax Rates”) and 6 (“Protect Promises to
Nashville”) are defective in form and precluded from the ballot because
they involve subject matter beyond the referendum power.
4. Whether the Chancery Court correctly held that proposed Charter
amendments 3 (“Abolish Lifetime or Other Benefits”) and 6 (“Protect
Promises to Nashville”) are defective in form and precluded from the
ballot because their language is vague and confusing such that a voter
could not ascertain the amendments’ meaning for purposes of casting an
intelligent vote.
5. Whether the Chancery Court correctly held that the defective proposed
Charter amendments are not severable from the rest, thereby requiring the
referendum election to be canceled.
The appeal has also prompted several interested groups to file briefs, with
permission of this Court, as amicus curiae. As is relevant to our discussion herein, we
observe that one of these groups, Save Nashville Now, contends that the appeal is moot, a
point also made in passing by the Metro Litigants’ brief. Another participating amicus
curiae, the Nashville Area Chamber of Commerce, has filed a brief in support of the trial
court’s decision relative to the “prescribe a date” provision in the Metro Charter.
DISCUSSION
The present appeal concerns the trial court’s review of the Commission’s action
under the common law writ of certiorari. The standard governing such review is well-
settled law:
Upon review, the court may reverse or modify the decision of an
administrative body or tribunal only upon determining that the action 1)
violated a statutory or constitutional provision; 2) was made in excess of the
agency’s authority; 3) was based on unlawful procedure; 4) was arbitrary or
capricious; or 5) was not supported by material evidence.
Dill v. City of Clarksville, 511 S.W.3d 1, 9 (Tenn. Ct. App. 2015). Whether a board or
tribunal acted illegally is a question of law, and with respect to appellate oversight, “[o]ur
standard of review is the same as that of the trial court.” Id.-7-
Rather than immediately turn to an examination of the merits of the raised
grievances concerning 4GG’s petition and the proposed Charter amendments, we must first
address the question of justiciability. “A case must remain justiciable through the entire
course of litigation, including any appeal.” Alliance for Native Am. Indian Rights in Tenn.,
Inc. v. Nicely, 182 S.W.3d 333, 338 (Tenn. Ct. App. 2005). If a case does not involve a
“genuine, continuing controversy requiring the adjudication of presently existing rights,”
it is not justiciable. Id. Here, the justiciability doctrine at issue is mootness. “A moot case
is one that has lost its justiciability because it no longer involves a present, ongoing
controversy.” Id. If a case no longer serves as a means to provide judicial relief to the
prevailing party, it will be considered moot. Id.The foregoing consideration is especially relevant here in light of the request for
relief advanced by the Commission in the prayer of its brief. In pertinent part, the
Commission requests that this Court reverse the trial court and “remand the matter to the
Commission with instructions to schedule a referendum election at a date in the exercise
of its appropriate, statutory discretion pursuant to T.C.A. § 2-3-204(a).” As discussed in
more detail below, it is not possible for an election to occur within the time parameters
fixed by the cited statute, and therefore, we fail to see how we can order the Commission
to take an action not permitted by law.
However, before turning to that specific timing question, we find it prudent to recap
the posture in which this case presents itself. The present appeal relates to review of the
Commission’s decision to set an election on July 27, 2021 in reference to the proposed
Charter amendments. Specifically, the appeal is from a writ of certiorari proceeding in
which the trial court sustained the Metro Litigants’ challenge to the setting of that July 27
election. The trial court’s judgment was issued on June 22, 2021. Although it appears
from certain filings concerning this case that the State Coordinator of Elections had granted
a request to change the deadline to mail military and overseas ballots in reference to the
July 27 election date, the Commission did not take steps to secure expedited review with
the aim of holding an election on July 27 or at any point within the time frame allotted by
Tennessee Code Annotated section 2-3-204, a point that will be further elaborated upon
below. Instead, the Commission filed its appeal on June 25, 2021, albeit while also
cancelling the July 27 election setting on the same date. The Commission conditionally
reset the referendum election for September 21, 2021, and a few days later, on June 29,
2021, finally sought expedited review in this Court and in the Tennessee Supreme Court.3
The Commission’s request for expedited appellate oversight was clearly to facilitate the
proposed September 21, 2021 election date. The Tennessee Supreme Court declined to
assume jurisdiction, and we denied expedited review. The Supreme Court’s decision
referenced the “current totality of the circumstances, including the relevant timeline and
the procedural posture of this case.”
3
As discussed previously, the Commission requested that the Supreme Court assume jurisdiction
pursuant to Tennessee Supreme Court Rule 48 and Tennessee Code Annotated section 16-3-201(d).
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Based on our discussion below pertaining to the text of Tennessee Code Annotated
section 2-3-204, it is not immediately clear to us on what basis the Commission believed
the September date would be appropriate under that statute.4 In any event, that date has
obviously now passed without an election. According to a filing submitted by one of the
participating amicus curiae, Save Nashville Now, it had challenged the Commission’s
decision to schedule an election in September in a separate writ of certiorari proceeding.
According to Save Nashville Now’s submission, the Commission successfully moved to
dismiss that other litigation as moot, apparently arguing, among other things, that there was
no relief to be granted because the Commission had already stipulated that no election
would occur on September 21.
Of course, the Commission now ultimately desires instruction from this Court that
it may reset the election at a future date pursuant to Tennessee Code Annotated section 2-
3-204. As we have already alluded to, this is simply not possible. Tennessee Code
Annotated section 2-3-204 states in part as follows:
(a) Elections on questions submitted to the people shall be held on dates
set by the county election commission but not less than seventy-five (75)
days nor more than ninety (90) days after the county election
commission is directed to hold the election under the law authorizing or
requiring the election on the question. If the election is to be held in more
than one (1) county, the county election commissions shall meet and set the
date jointly.
....
(c) If the date for an election on a question, as set by a county election
commission or by two (2) or more commissions jointly, falls within ninety
(90) days of an upcoming regular primary or general election being held in
the jurisdiction voting on the question, the commission or commissions may
reset the date of the election on a question to coincide with the regular
primary or general election, even though this may be outside of the time
period established herein. All dates dependent on the date of the election shall
be adjusted accordingly and any acts required to be done by these dates shall
be performed timely if done in accordance with the adjusted dates.
4
According to materials submitted by Save Nashville Now, the Commission’s resolution to
conditionally reset the election to September had identified a permissible election window of September 8,
2021 through September 23, 2021. Again, although we fail to understand how the Commission believed
this to be appropriate, such an application of the window in Tennessee Code Annotated section 2-3-204
clearly appears to assume that the timeline was triggered on June 25, 2021, the date the Commission
cancelled the July 27 setting.
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Tenn. Code Ann. § 2-3-204 (emphases added).
At oral argument, when questioned how a future election setting could comply with
this statute, counsel for the Commission argued that it is the decision of this Court that
triggers the timeline for an election setting. Indeed, counsel specifically stated as follows:
“[I]t would be the Court that would be directing the Commission to hold the election and
the time frame would then be triggered by the court’s order.” Counsel then continued on,
stating, “If this Court undoes the order of the trial court . . . it would direct the Commission
to hold the election . . . pursuant to 2-3-204(a). And that’s when the timing would start.”
Respectfully, we disagree. Notably, we observe that a similar argument was offered by the
Commission in another case, one that specifically involved the interpretation of Tennessee
Code Annotated section 2-14-102(a). That statute governs the setting of special elections
for office vacancies and requires them to be held “not less than seventy-five (75) days nor
more than eighty (80) days after the officer or body charged with calling the election
receives notice of the facts requiring the call.” Tenn. Code Ann. § 2-14-102. In Wallace
v. Metropolitan Government of Nashville, 546 S.W.3d 47 (Tenn. 2018), the Commission
argued that the date of the Supreme Court’s ruling should be deemed “the date on which
‘the officer or body charged with calling the [special] election receives notice of the facts
requiring the call,’ thereby triggering the statutory time-frame for setting the special
election.” Id. at 58 n.14. The Supreme Court squarely rejected this argument, stating that
the suggestion was “tantamount to inviting us to judicially amend the statute.” Id. We
similarly decline the argument offered by the Commission here; we find no support for it
in the text of the statute.
As we understand the matter, the Commission was “directed to hold the election,”
see Tenn. Code Ann. § 2-3-204(a), when the Metropolitan Clerk certified a copy of the
petition containing the proposed amendments on May 6, 2021. Indeed, pursuant to the
Metro Charter, the duty to hold an election is contingent upon the Metropolitan Clerk
providing such a certified copy: “The metropolitan clerk shall immediately certify to the
county commissioners of election copy of such resolution or petition and it shall
thereupon be the duty of said commissioners of election to hold a referendum election
with respect thereto.” Metro Charter § 19.01 (emphasis added). Ninety days from May 6,
2021 was August 4, 2021. Whereas the prior July 27, 2021 election date at issue in the
trial court’s order undoubtedly fell within the permitted statutory time frame for the holding
of an election, the Commission canceled that election date and did not seek expedited
review so as to attempt to hold an election within the permitted time frame, whether on
July 27 or otherwise. Instead, it reset the election for September 21, 2021, a date that did
not fall within the time parameters of Tennessee Code Annotated section 2-3-204.
Logically, any future election date also would not fall within the statutorily-mandated time
for holding an election on referendum questions. We cannot, therefore, remand the matter
and order that the Commission set a date for an election on the amendments. The case is
accordingly moot given our inability to provide the requested relief sought by the
Commission. See Nicely, 182 S.W.3d at 338.
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Had the Commission sought expedited appellate review of a proposed election
within the time parameters of Tennessee Code Annotated section 2-3-204 instead of an
election date beyond the time permitted by the statute, no doubt, extremely prompt action
would have been required by this Court, or the Supreme Court. The appellate courts,
however, have given prompt attention to election matters before. See, e.g., Wallace, 546
S.W.3d at 51 (involving a request by the appellant, on the same date he filed his notice of
appeal, that the Supreme Court assume jurisdiction); City of Memphis, 146 S.W.3d at 533
n.1 (involving a case where the Supreme Court’s September 10, 2004 order gave the parties
mere days to brief the matter, with the opinion being quickly issued on September 15,
2004). The Commission did not meaningfully attempt to facilitate such a possibility,
however. Indeed, for whatever reason, it was not until a week after the trial court’s June
22, 2021 judgment that the Commission sought expedited review from this Court and the
Supreme Court. Moreover, as already noted, the Commission represented at that time its
intent to hold an election in September 2021, outside of the permitted time frame.
Although the Commission has offered argument that this Court has “remedial
authority” to give relief by ordering an election and invokes Rule 36 of the Tennessee Rules
of Appellate Procedure in support thereof, we disagree with its position. Rule 36 provides
that this Court shall “grant the relief on the law and facts to which the party is entitled or
the proceeding otherwise requires and may grant any relief, including the giving of any
judgment and making of any order.” Tenn. R. App. P. 36. We fail to see how this text
gives us a license to order an election inconsistent with the timing required by law. Indeed,
as we have noted, the statute places limits on when the election shall be held. Just as we
cannot endorse the Commission’s argument that our decision triggers the timeline for the
setting of an election, an argument which is an effective invitation to “judicially amend the
statute,” Wallace, 546 S.W.3d at 58 n.14, we cannot otherwise ignore what the clear
language of the statute requires.
Although the appeal is technically moot in light of our foregoing discussion, we
acknowledge that case law allows this Court, in its discretion, to conclude that exceptions
to the mootness doctrine exist. Among other reasons, we may conclude that issues are
deserving of consideration when the “public interest” militates in favor of addressing
disputed issues of great importance to the public and the administration of justice. Norma
Faye Pyles Lynch Family Purpose LLC v. Putnam Cty., 301 S.W.3d 196, 208 (Tenn. 2009).
To guide our discretion in deciding whether such a “public interest” exception is
applicable, we address the following threshold considerations:
(1) the public interest exception should not be invoked in cases affecting only
private rights and claims personal to the parties; (2) the public interest
exception should be invoked only with regard to “issues of great importance
to the public and the administration of justice”; (3) the public interest
exception should not be invoked if the issue is unlikely to arise in the
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future; and (4) the public interest exception should not be invoked if the
record is inadequate or if the issue has not been effectively addressed in the
earlier proceedings.
Id. at 210–11 (internal footnotes omitted). If the above considerations do not exclude the
invocation of the public interest exception to mootness, we then “balance the interests of
the parties, the public, and the courts to determine whether the issues in the case are
exceptional enough to address.” Id. at 211. As part of this balancing, we may consider,
among other things, the following:
(1) the assistance that a decision on the merits will provide to public officials
in the exercise of their duties, (2) the likelihood that the issue will recur under
similar conditions regardless of whether the same parties are involved, (3)
the degree of urgency in resolving the issue, (4) the costs and difficulties in
litigating the issue again, and (5) whether the issue is one of law, a mixed
question of law and fact, or heavily fact-dependent.
Id. (internal footnotes omitted).
Here, as a matter of public interest, the issue pertaining to the “prescribe a date”
provision from Metro Charter § 19.01 is worthy of current examination notwithstanding
the fact that the case is otherwise moot. The “prescribe a date” provision from Metro
Charter § 19.01 requires that a petition proposing amendments to the Charter “prescribe a
date not less than eighty (80) [days] subsequent to the date of its filing for the holding of a
referendum election at which the electorate of the metropolitan government will vote to
ratify or to reject the amendments proposed.” Metro Charter § 19.01. This provision is at
issue here due to the fact that 4GG’s petition to amend the Charter did not prescribe a single
date; rather, 4GG’s petition proposed for amendments “to be voted on by the citizens on
May 28, 2021 or June 14, 2021, whichever is earlier as permitted by Metro Charter §
19.01.” The trial court’s conclusion that 4GG’s petition ran afoul of the “prescribe a date”
provision is deserving of consideration for a number of reasons in our opinion. First, this
is not a matter that is confined to private rights and claims. Rather, the issue broadly
concerns the interest of the public at large and the manner in which citizens may amend
the Charter. We consider this to be a matter of great public interest, and this case provides
an opportunity to resolve this issue and avoid further protracted litigation on it in the future.
As should be evident from our ensuing discussion, there is obviously an incentive for
petitioners to not prescribe a single date in petitions to amend the Charter, and bringing
clarity as to the propriety (or lack thereof) of this practice is a worthy use of our judicial
resources. The general public interest in this provision is evidenced by, among other
things, the filing of an amicus brief on the issue by the Nashville Area Chamber of
Commerce.
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In addition to the above considerations, we note that there is nothing impeding our
review of the issue now, as there is no need for further development of a factual record. In
our view, the question before us is a legal one, namely whether the Charter does, in fact,
require citizens proposing Charter amendments to prescribe a single date in their petition.
Additionally, we are of the opinion that our examination of the issue now will provide
guidance to the Commission as to how it should carry out its duties moving forward. See
Norma Faye Pyles Lynch Family Purpose LLC, 301 S.W.3d at 211 (noting the relevance
of considering the assistance that a decision will provide to public officials). Finally, we
consider the concern that exists over the costs already incurred by the parties in this case
and the potential time difficulties5 that could accompany any future pre-election judicial
review.
Having found it appropriate to address the issue pertaining to the “prescribe a date”
provision, we now turn our attention to the heart of the matter. The trial court concluded
that the Commission had acted improperly by not finding it consequential that 4GG’s
petition did not “prescribe a date” as required under the Metro Charter. In relevant part,
the trial court correctly observed that 4GG’s petition had listed “two alternative dates” and
opined that “[l]egal prerequisites . . . must be met and the Election Commission’s failure
to insist that the ‘prescribe a date’ legal requirement be complied with as written is not
entitled to deference upon judicial review.” The trial court reasoned that the “prescribe a
date” requirement
1) sets the governing timeline; 2) permits the Election Commission to
determine whether the petition violates the prohibition on submitting a
petition to voters more than once every two years; 3) prevents backdoor
extensions of the deadline for obtaining signatures; 4) provides clarity for
potential signatures; and 5) consistent with fairness, notifies potential
opponents, in advance of the petition’s filing, what the Petition prescribes as
the election date for purposes of a potential counter-campaign.
The Commission takes umbrage at the trial court’s interpretation of the “prescribe
a date” provision, even initially arguing that 4GG’s petition was compliant with the Charter
requirement. According to the Commission, 4GG’s petition permissibly proposed
“alternate dates” but with “a clear decision rule about which of the alternative dates
controls.” The trial court’s insistence on a single date, it submits, reads an emphasis into
the provision that “does not appear in the text.” Indeed, the Commission argues that “[t]he
Trial Court read the provision as if the word ‘a’ were underlined and bolded.” True enough,
5
Parties, of course, should pursue every available procedural means, with expediency, to timely
seek judicial review, whether at the trial or appellate level, when there are time-sensitive election matters
at stake. Of note, according to the submission of Save Nashville Now, the Commission apparently argued,
in the context of the writ of certiorari proceeding relative to the setting of the September 2021 election date,
that sufficient time exists for a judicial challenge once a referendum is set under Tennessee Code Annotated
section 2-3-204.
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the word “a,” as utilized in the phrase “a date” in Metro Charter § 19.01, is neither
underlined nor bolded, but we fail to see how that in any way changes the fact that the
“prescribe a date” provision textually demands a single date. Indeed, the language simply
is what it is, and here, the controlling language provides that the petition “shall . . . prescribe
a date not less than eighty (80) [days] subsequent to the date of its filing for the holding of
a referendum election.” Metro Charter § 19.01 (emphasis added). Thus, it is clear: in order
to be compliant with the Charter’s requirements, the petition “shall” prescribe “a date.”
This language and its accompanying context contemplate a single date, not multiple dates
accompanied by a “decision rule.”
The Commission argues, however, that the importance of a single prescribed date is
not what it seems, apparently in an attempt to repudiate the notion that a single prescribed
date is, in fact, demanded. Pointing to Tennessee Code Annotated section 2-3-204(a), the
Commission observes that it ultimately is responsible for the setting of an election date.
Based on our prior discussion in this Opinion pertaining to the text of Tennessee Code
Annotated section 2-3-204(a), we obviously will not quibble with the argument that the
date prescribed in a referendum petition does not absolutely control when a referendum
election will occur. That said, this does not mean that the requirement to prescribe a date
is itself somehow advisory or lacks importance. It is a requirement per the text, not a
suggestion; indeed, the text mandates that “a date” be prescribed, and that date affects, as
the trial court recognized, the deadline for complying with another “form” requirement
incident to submitting a referendum petition to an election. Consider the practical interplay
between the following two requirements that must be adhered to when attempting to amend
the Charter. First, although the Charter can be amended “upon petition,” the petition must
be “signed by ten (10) per cent of the number of the registered voters of Nashville-
Davidson County voting in the preceding general election.” Metro Charter § 19.01.
Moreover, as already discussed in connection with this issue, the petition “shall also
prescribe a date not less than eighty (80) [days] subsequent to the date of its filing for the
holding of a referendum election.” Id. Given the latter mandate to prescribe “a date” and
the temporal marker associated therewith, the Charter effectively requires that, in order to
be sufficient, petitions to amend it must have garnered the requisite number of signatures
at least eighty days prior to the prescribed date.
To ignore the plain language connected to the “prescribe a date” requirement from
the Charter, of course, would completely eviscerate this deadline. As the Nashville Area
Chamber of Commerce has argued on appeal:
[A]llowing petitioners to prescribe multiple dates on a petition means that
there is no actual deadline for gathering signatures at all, because if
petitioners can simply reserve multiple backup election dates, then
petitioners may unilaterally extend their signature deadline and rely on
backup dates indefinitely until a sufficient number of signatures has been
secured.
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The “prescribe a date” requirement therefore does “prevent[] backdoor extensions of the
deadline for obtaining signatures,” as the trial court noted, and also “provides clarity for
potential signatures.” Without knowing this deadline, citizens will not know the period in
which support or opposition to a signature campaign needs to be mounted.6
6
As far as notice is concerned, the trial court also decided, as already outlined, that “consistent with
fairness, [the “prescribe a date” requirement] notifies potential opponents, in advance of the petition’s filing,
what the Petition prescribes as the election date for purposes of a potential counter-campaign.” The
Nashville Area Chamber of Commerce emphasizes the importance of this consideration in its amicus brief,
arguing that permitting the reservation of multiple potential dates
would also give proponents of a petition a seriously unfair advantage over their
opponents regarding an election itself, given that it would enable petitioners—and only
petitioners—to know when an election will be held. Petitioners alone control when their
signatures are filed with the Metro Clerk. Thus, by prescribing two or more election dates
on a petition—the Election Commission’s “clear decision rule” proposal would allow
petitioners to prescribe hundreds of potential dates if they wished—and then indicating that
the election will be held on “whichever [date] is earlier as permitted by Metro Charter §
19.01,” petitioners alone can control the date of a referendum election based strictly upon
the date when they file their signatures.
Thus, regardless of how many dates a petition prescribes, petitioners (and
petitioners alone) will know—in advance of filing—when an election will be held, because
petitioners alone will know when they intend to file their petition with the Metro Clerk.
By contrast, opponents of a petition—who have no way of knowing or controlling when a
petition will be filed—will necessarily be left to guess the date of the election until the
moment that petitioners file their signatures with the Metro Clerk.
The unfair advantage that such superior knowledge affords petitioners
cannot be overstated. For example, it would allow petitioners—and only petitioners—to
buy, in advance of filing their signatures with the Metro Clerk, the bulk of prime
advertising spots “during the pivotal final days before the election,” Tennesseans for
Sensible Election Laws v. Tennessee Bureau of Ethics & Campaign Fin., No. M2018-
01967-COA-R3-CV, 2019 WL 6770481, at *20 (Tenn. Ct. App. Dec. 12, 2019)—or even
the critical “weeks immediately before” an election, see Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 334 (2010)—because only they will know in advance of filing
when Election Day will be. Id. (“It is well known that the public begins to concentrate on
elections only in the weeks immediately before they are held. There are short timeframes
in which speech can have influence.”).
(internal footnote omitted).
Although the notice given by the prescribed date is not necessarily exact in reference to the actual
date of an election given the authority of the Commission to set the election date within the window
provided for in Tennessee Code Annotated section 2-3-204, the above cited concerns by the Chamber of
Commerce are certainly still real ones. Of course, regardless of this consideration, we have already noted
how the “prescribe a date” requirement affects the timeline for actually obtaining signatures.
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Although the Commission appears to argue in its brief that it is entitled to deference
as to its belief that alternative dates can satisfy the “prescribe a date” requirement, we
disagree. In the previously-discussed Wallace decision, the Supreme Court noted that
“principles of statutory construction guide us in our interpretation of the Charter.” Wallace,
546 S.W.3d at 52. In further stating that its review of a particular provision of the Charter
was “without any deference to the interpretations of the Commission,” id., the Supreme
Court explained in relevant part as follows:
This is not a case in which an administrative agency has construed and
applied its own rules or policies. The issue in this case is the proper
construction of a provision of the Charter. . . . To the extent that the
Commission’s interpretation of the Charter is akin to an agency’s
interpretation of its controlling statutes, we are not bound by that
interpretation, particularly where the controlling statute is not ambiguous.
The Commission’s interpretation of the Charter is certainly entitled to our
respect; however, it is not entitled to our deference.
Id. at 52 n.7 (internal citation omitted). As we have already explained, the language of the
Charter here is clear: a petition seeking to amend the Charter “shall” prescribe “a date.”
Metro Charter § 19.01. This is a requirement that must be met per the language in the
Charter. Further, although it is true that an ensuing election date might not actually
coincide with the date a petition prescribes due to the authority given to the Commission
by general state law, the prescribed date is in no way meaningless as more or less suggested
by the Commission. Indeed, as we have noted herein, given the signature requirement that
exists under Metro Charter § 19.01, the prescribed date in effect dictates the governing
deadline by which supporters of a referendum measure must obtain the requisite number
of signatures to warrant holding a referendum election. We agree with the trial court that
the petition here was invalid given the petitioners’ failure to prescribe a single date in
compliance with the Charter, and therefore, the Commission acted illegally in acting to set
an election with regard to the petition’s proposed amendments.
As to the issues directly connected to the proposed Charter amendments themselves,
we note initially that resolution of these remaining issues would not have been necessary
even if this appeal could have, at the outset, theoretically served as a means to provide the
Commission with relief. We make this observation given our conclusion above concerning
the “prescribe a date” provision from the Metro Charter. Indeed, given the petition’s failure
in form with respect to that requirement, the petition was, as the trial court recognized,
“invalid as a whole.” This is not to say that we would have been foreclosed from addressing
the remaining issues because of our holding concerning the “prescribe a date” provision if
this case otherwise presented a live controversy. It is simply to acknowledge that
addressing the remaining issues would have been unnecessary to the ultimate determination
of whether the proposed amendments should have been set for an election. In other words,
our opinion on the “prescribe a date” issue would have given us an occasion to pretermit
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any remaining concerns connected to the petition.7 That issue alone would have been
dispositive of resolving the propriety of the Commission’s action.
This initial observation notwithstanding, the question here is whether we should
address the remaining issues on appeal given the otherwise moot nature of the case. When
the Commission addressed the question of mootness in a filing before our Supreme Court
in support of its request for relief under Tennessee Supreme Court Rule 48 (an argument
which is incorporated by reference in its reply brief in this Court), it contended that the
“public interest” exception was applicable. As evidenced by our discussion above, we
certainly agree with the Commission on this point inasmuch as this appeal relates to the
“prescribe a date” provision, and our Opinion on this issue will hopefully assist the
Commission to evaluate the validity of any future referendum petition vis-à-vis the
“prescribe a date” requirement. We respectfully disagree, however, that the remaining
issues argued on appeal are appropriate for our consideration. As we perceive it, beyond
the fact that any opinion on these particular issues would be purely advisory, we can only
speculate that these same specific questions will manifest in the future. We therefore
exercise our discretion to abstain from any other appellate pronouncements given the
mootness of the case.
A threshold consideration guiding our discretion relative to the public interest
exception is whether an issue is unlikely to arise in the future. See Norma Faye Pyles
Lynch Family Purpose LLC, 301 S.W.3d at 210. Moreover, assuming this and other
threshold considerations do not exclude the invocation of the public interest exception, we
are permitted to consider, among other things, the likelihood that the issue will recur under
similar conditions and the degree of urgency in resolving the issue. Id. at 211. Here, any
utility in expressing an opinion on any of the specific proposed Charter amendments
presupposes that these matters will (a) again be an object of a future referendum petition
(b) timely garner sufficient citizen support to satisfy the Charter’s signature requirement,
(c) exist in substantially the same form, and (d) be the subject of a future pre-election
judicial challenge. In our view, assuming that all of these things will occur is unduly
speculative to warrant continued judicial involvement in a case that is otherwise moot.
7
In a somewhat similar vein, albeit for different reasons, it would have been unnecessary to address
the issues raised connected to the sixth proposed Charter amendment, the amendment labeled “Protect
Promises to Nashville,” even if this case were not moot. The trial court cited a number of reasons why this
amendment could not survive pre-election judicial review, but the Metro Litigants accurately observe that
not every one of these rulings was challenged in the Commission’s principal brief. Indeed, without
commenting on whether or not the trial court properly considered the specific issue pre-election or
otherwise accurately analyzed the issue, the trial court made findings regarding alleged violations of certain
statutes, including Tennessee Code Annotated section 9-21-125, that do not appear to be challenged in the
Commission’s initial brief. Argument was not offered on the matter by the Commission until its reply brief.
“Issues cannot be raised for the first time in a reply brief.” Tennison Bros., Inc. v. Thomas, 556 S.W.3d
697, 732 (Tenn. Ct. App. 2017). Very simply, the failure to challenge one basis for the court’s ruling
relative to the amendment results in waiver and can therefore pretermit the necessity of engaging with the
other trial court rationales that were properly challenged on appeal.
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“Our judicial heritage speaks to restraint in addressing issues when the parties do not have
a continuing, real, live, and substantial interest in the outcome,” and “as a general rule,
Tennessee’s appellate courts should dismiss appeals that have become moot regardless of
how appealing it may be to do otherwise.” Id. at 210. Here, we find that the remaining
issues presented involve several interesting academic questions, but the likelihood that
these same issues will materialize again, and in the same form, is but a guess. As noted
above, we can only speculate that these same amendments will again be the subject of a
future referendum petition. Citizens may be motivated to pursue the same referendum
efforts, or they may not be. Moreover, a future signature drive for a referendum petition
may garner enough signatures under the Charter, or it may not.8 Additionally, the particular
concerns that may animate future action by citizens could be different. Indeed, as time
changes, so too can one’s plans and goals, and a given referendum effort may itself be fixed
with a narrow temporal objective. As to this concern, it is of note that one of the
amendments that was at issue in this case—amendment one—specifically sought, among
other things, to affect fiscal years 2021-2022 and 2022-2023.
To summarize our discussion herein, this appeal cannot serve as a means to facilitate
the Commission’s prayed-for relief. Indeed, assuming arguendo that we were to find in
favor of the Commission on all issues, directing it to reset an election on the proposed
amendments for a future date would necessarily contravene the time parameters established
in Tennessee Code Annotated section 2-3-204. Nevertheless, given the clear legal concern
associated with the “prescribe a date” issue and the utility that addressing that matter would
have to evaluating the validity of any future petition to amend the Charter, we have
exercised our discretion to address that issue despite the mootness of the case. We have
also concluded, however, that the remaining issues pertaining to the proposed Charter
amendments should not be broached in this appeal. As discussed herein, we find it unduly
speculative that these same issues will manifest in the future, and we accordingly refrain
from offering any advisory opinion as to a hypothetical and uncertain course of events.9
8
The speculation that surrounds this consideration is of particular note in light of certain facts the
administrative record contains in reference to the present referendum petition. The petition to amend the
Charter was submitted on March 25, 2021. This submission of the petition, and its accompanying
signatures, therefore occurred on a date less than 80 days before the earlier of the alternative prescribed
dates in the petition. As we have opined herein, the Charter effectively requires that, in order to be
sufficient, petitions to amend it must have garnered the requisite number of signatures at least eighty days
prior to the prescribed date. Although not specifically discussed previously in this Opinion, as the issue
raised over it in the trial court was not pursued on appeal by any of the parties, 4GG’s petition was actually
circulated in two versions. Each version prescribed the same alternative dates for an election, but one
version proposed a filing date for March 8, 2021. Another version proposed a filing date by March 25,
2021. (The two versions also contained some other textual differences, albeit not in relation to the text of
the proposed amendments themselves). It thus appears 4GG intended to garner sufficient signatures by
March 8 in order to present a petition that would comply with the earlier of the alternative prescribed dates
for election. Of course, as already indicated, the petition and accompanying signatures ultimately were not
submitted until March 25.
9
We are of the opinion that similar concerns countenance against application of the “capable of
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CONCLUSION
Although the controversy over the case at issue is moot given our inability to
potentially provide the Commission with any relief, we have found there to be sufficient
public interest to warrant addressing the “prescribe a date” concern raised in this case. As
to that matter, we agree with the trial court that the Commission acted illegally in deciding
to hold a referendum election given the referendum petition’s failure to prescribe a single
date for an election. As to the remaining issues in this case, we find it appropriate to yield
to the general bar of restraint posed by the mootness doctrine and therefore refrain from
offering any advisory opinion on such matters, and the trial court’s judgment on those
issues is vacated.
s/ Arnold B. Goldin
ARNOLD B. GOLDIN, JUDGE
repetition yet evading review” exception to mootness that is also potentially available in a court’s discretion.
See Allen v. Lee, No. M2020-00918-COA-R3-CV, 2021 WL 2948775, at *3 (Tenn. Ct. App. July 14, 2021)
(noting that a mere possibility that an act might reoccur is not sufficient to invoke the exception).
Hypothetically assuming, however, that a future referendum petition submitted these same amendments to
the Commission and the Commission voted to set them for an election, there is obviously a concern that
any pre-election judicial review be expedited. That time constraints would exist, though, does not mean
that these questions should necessarily evade review. As discussed earlier, courts frequently act in
recognition of the time-sensitive nature of election matters when the posture of the case is appropriate that
it do so. As it relates to this point, and as discussed earlier, Save Nashville Now has represented that the
Commission apparently argued, in the context of the writ of certiorari proceeding relative to the setting of
the September 2021 election date, that sufficient time exists for a judicial challenge once a referendum is
set under Tennessee Code Annotated section 2-3-204. We agree with this sentiment in theory, at least to
the extent that litigation is expedited and the parameters of the Supreme Court’s City of Memphis decision
are properly adhered to in litigation. As alluded to in this Opinion, the City of Memphis decision is
instructive that the scope of pre-election judicial review is somewhat narrow. It does not, for instance,
permit consideration of a referendum measure’s substantive validity pre-election. See City of Memphis,
146 S.W.3d at 539-40; see also James D. Gordon, III, & David B. Magleby, Pre-Election Judicial Review
of Initiatives and Referendums, 64 Notre Dame L. Rev. 298, 307 (1989) (discussing how one problem
associated with pre-election review of substantive validity relates to the time pressure). Permissible topics
of inquiry, such as whether a referendum measure is in proper “form,” should not demand drawn-out
litigation; such topics should be able to be resolved in an expedient fashion if the courts, both trial and
appellate, are properly alerted to the associated time constraints that bear on the questions involved.
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