City of Memphis v. Shelby Cty Elec. Com'n, W2004-02182-SC-RDM-CV.

Decision Date15 September 2004
Docket NumberNo. W2004-02182-SC-RDM-CV.,W2004-02182-SC-RDM-CV.
Citation146 S.W.3d 531
PartiesTHE CITY OF MEMPHIS v. SHELBY COUNTY ELECTION COMMISSION, et al.
CourtTennessee Supreme Court

Allan J. Wade, Lori Hackleman Patterson, Brandy S. Parrish, Sara L. Hall, Memphis, Tennessee, for the appellant, The City of Memphis.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Ann Louise Vix, Senior Counsel, Charles L. Lewis, Deputy Attorney General, Nashville, Tennessee, for the appellee, Shelby County Election Commission, Gregory M. Duckett, Richard J. Holden and Maura Black Sullivan, Members.

OPINION

FRANK F. DROWOTA, III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

In this expedited appeal, this Court is asked to decide whether the Shelby County Election Commission exceeded its authority by refusing to place Referendum Ordinance No. 5072 on the November 2, 2004, ballot based upon the State Election Coordinator's opinion that the Ordinance is unconstitutional. We hold that the Shelby County Election Commission exceeded its authority in refusing to place the measure on the ballot. Accordingly, the judgment of the trial court is reversed, and the Commission is hereby ordered to include Referendum Ordinance No. 5072 on the November 2, 2004, ballot.

I. Motion to Assume Jurisdiction

On September 10, 2004, the City of Memphis ("City") filed a motion pursuant to Tennessee Code Annotated section 16-3-201 requesting that this Court assume jurisdiction of this appeal and render an expedited decision. The City asserted that this is a case of unusual public importance involving constitutional separation of powers issues. The City maintained that expediting the appeal is necessary to enable the Shelby County Election Commission to prepare and to distribute to military personnel by September 18, 2004, the ballots for the November 2, 2004, general election. This Court immediately ordered the parties to submit briefs addressing the following issues: (1) whether the Shelby County Election Commission and Commission Members ("Commission") had the authority to refuse to place Referendum Ordinance No. 5072 on the November 2, 2004, ballot because they believed it to be unconstitutional; and (2) whether Referendum Ordinance No. 5072 is unconstitutional.

Upon due consideration of the well-written and thorough briefs, prepared on short notice,1 this Court finds that the City's motion is well taken. We agree with the City that this is a case of unusual public importance, presenting a special need for expedited decision and involving issues of constitutional law. See Tenn.Code Ann. § 16-3-201 (Supp.2003). Accordingly, we hereby grant the City's motion, assume jurisdiction of this appeal, and, as explained below, reverse the judgment of the trial court.

II. Factual and Procedural Background

Petitioner, the City, is a home rule municipality duly chartered under Article XI, section 9 of the Tennessee Constitution. The Commission is responsible for administering public elections in Shelby County and in the City. On August 17, 2004, the Memphis City Council passed on third and final reading Referendum Ordinance No. 5072. If approved by the voters, this measure would amend the City's Charter by adding the following provision:

The Council of the City of Memphis is authorized by Ordinance to authorize the City of Memphis to levy and collect an additional privilege tax and/or fee on the privilege of engaging in certain vocations, occupations, callings and employment related activities within the City and to authorize the use of revenue derived therefrom for budget expenditures for fire, police and for corresponding reductions of ad valorem taxes for expenditures made from such revenues.

The City's Comptroller delivered to the Commission a copy of Referendum Ordinance No. 5072, along with a suggested referendum question (collectively "Ordinance"), for inclusion on the November 2, 2004, ballot. There is apparently no dispute that the Ordinance was duly enacted by the Memphis City Council, signed by the Mayor, and properly and timely submitted to the Commission for inclusion on the ballot. However, on August 26, 2004, the Commission refused to place the Ordinance on the ballot. In doing so, the Commission relied upon an August 25, 2004, letter from Brook Thompson, Tennessee Coordinator of Elections ("Coordinator"). In this letter, the Coordinator declared that he would not approve any ballot containing the Ordinance and stated that a privilege/payroll tax, to which the Ordinance ultimately speaks, "is unconstitutional unless and until the General Assembly authorizes cities to impose such a tax."

On August 27, 2004, the City filed a "petition for writ of mandamus, for injunctive relief, and for a declaratory judgment," challenging the Commission's refusal to place the Ordinance on the ballot. A hearing was held on September 7, 2004, before Chancellor Arnold Goldin. Although characterizing the duties of the Commission and the Coordinator as ministerial in nature, the Chancellor concluded that these officials had the authority to refuse to place the Ordinance on the ballot. The Chancellor further found that the Ordinance would be unconstitutional because it would unlawfully increase the taxing power of the City in violation of Article XI, section 9 of the Tennessee Constitution.2 The City filed a notice of appeal on September 8, 2004, and, two days later, filed a motion asking this Court to assume jurisdiction of the appeal pursuant to Tennessee Code Annotated section 16-3-201. We granted the City's motion.

III. Authority of the Commission

The City argues that the Commission and the Coordinator are ministerial officials who had no authority to refuse to place the Ordinance on the ballot because they believed it to be unconstitutional. In support of its argument, the City points to several statutes, discussed hereinafter, delineating the duties of the Commission, as well as to several statutes setting forth the duties of the Coordinator whose opinion the Commission relied upon in refusing to place the Ordinance on the ballot. The Commission responds that it has the duty to review proposed referendum measures and to determine initially whether such measures comply with state statutes and with the state constitution.

The City correctly points out that the Coordinator and the Commission are ministerial officers. Shelby County Election Comm'n v. Turner, 755 S.W.2d 774, 776 (Tenn.1988) ("[T]he Election Commission has only ministerial duties."); Peeler v. State ex rel. Beasley, 190 Tenn. 615, 231 S.W.2d 321, 323 (1950) (holding that the duties of county election commissions are ministerial); Curtis v. State, 163 Tenn. 220, 43 S.W.2d 391 (1931); Taylor v. Carr, 125 Tenn. 235, 141 S.W. 745, 750 (1911) (holding that "the duties of commissioners of election are only ministerial"); see State ex rel. Tidwell v. Morrison, 152 Tenn. 59, 274 S.W. 551, 552 (1924). The trial court in this case accurately characterized the Commission's duties as ministerial. The Commission and the Coordinator respectively perform important functions vital to the maintenance and advancement of our political system. Nonetheless, as ministerial officers, the Commission and the Coordinator have limited discretion.

Black's Law Dictionary defines a "ministerial officer" as "[o]ne who performs specified legal duties when the appropriate conditions have been met, but who does not exercise personal judgment or discretion in performing those duties." Black's Law Dictionary 1113 (7th ed.1999). A "strictly ministerial duty" is defined as: "A duty that is absolute and imperative, requiring neither the exercise of official discretion nor judgment." Id. at 522.3 These definitions illustrate how, as ministerial officers performing ministerial acts, the Commission and the Coordinator must implement the election laws, not determine the substantive constitutionality of ballot measures.

Without question, the Commission and the Coordinator have certain statutorily prescribed ministerial duties that allow—indeed require—them to do such things as examine ballot initiatives to determine whether signature requirements are met, determine whether submissions are timely, and determine whether candidates have properly qualified to be placed on the ballot. See Tenn.Code Ann. § 2-1-101 through -216 (2003) et seq. However, these statutes do not require or even permit the Commission to refuse to include a referendum question on the ballot because the Commission believes the question to be substantively unconstitutional. See Tenn Code Ann. §§ 2-12-101 through 2-12-216 (delineating the duties of the Commission). The Commission contends that it has the power and duty to make an "initial determination" whether the law authorizes the acts it is required to perform. This contention is true with respect to the Commission's performance of its ministerial duties. However, it is inaccurate to say that the Commission has the power and duty to perform an initial or cursory review of the substantive constitutionality of measures to be placed on the ballot for referendum. Determining the substantive constitutionality of such measures is a function reserved for the judicial branch of government.

Furthermore, the Coordinator, an appointed, ministerial official, also lacks the statutory authority to forbid the inclusion of a referendum question based upon the Coordinator's opinion that the measure is substantively unconstitutional. The Coordinator's statutory duty to approve the "form of the ballot" does not provide authority to determine the substantive constitutionality of referendum questions, like the Ordinance at issue in this case. The "forms of ballots on voting machines" and the "form of paper ballots" are prescribed by ...

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