County of Shelby v. McWherter

• Decision Date: 03 June 1996
• Parties: 115 Ed. Law Rep. 553 COUNTY OF SHELBY, a Political Subdivision of the State of Tennessee; Board of County Commissioners of Shelby County, Tennessee; and Charles R. Perkins, as Chairman of the Board of County Commissioners of Shelby County, Tennessee, Plaintiffs-Appellants, James W. Anderson, Superintendent of Shelby County Board of Education, Rubye Dobbins, Carolyn Bobo, Tom Brooks, Homer Bunker, Finis F. Fields, Cheryl Hall and Karen Hill, Individually and comprising the Shelby County Board of Education, Plaintiffs-Intervenors-Appellants, v. Ned McWHERTER, Governor of the State of Tennessee; Riley C. Darnell, Secretary of the State of Tennessee; Charles W. Burson, Attorney General of the State of Tennessee; and Shelby County Election Commission, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 923

936 S.W.2d 923

115 Ed. Law Rep. 553

COUNTY OF SHELBY, a Political Subdivision of the State of Tennessee; Board of County Commissioners of Shelby County Tennessee; and Charles R. Perkins, as Chairman of the Board of County Commissioners of Shelby County, Tennessee Plaintiffs-Appellants James W. Anderson, Superintendent of Shelby County Board of Education, Rubye Dobbins, Carolyn Bobo, Tom Brooks, Homer Bunker, Finis F. Fields, Cheryl Hall and Karen Hill Individually and comprising the Shelby County Board of Education, Plaintiffs-Intervenors-Appellants, v. Ned McWHERTER, Governor of the State of Tennessee; Riley C. Darnell, Secretary of the State of Tennessee; Charles W. Burson, Attorney General of the State of Tennessee; and Shelby County Election Commission, Defendants-Appellees.

Court of Appeals of Tennessee, Western Section, at Jackson.

June 3, 1996.

Application for Permission to Appeal

Denied by Supreme Court

Oct. 28, 1996.

Brian L. Kuhn, Memphis, for Plaintiffs-Appellants.

R. Lee Winchester, Memphis, for Plaintiff-Intervenor-Appellants.

Charles W. Burson, Attorney General, Michael E. Moore, Solicitor General, Andy D. Bennett, Associate Chief Deputy, for Defendants-Appellees.

CRAWFORD, Presiding Judge, Western Section.

This appeal involves a declaratory judgment suit. Shelby County's complaint ¹ seeks an interpretation and declaration of the constitutionality of certain sections of the Educational Improvement Act of 1992 (EIA), as amended, now codified in Title 49 of the Tennessee Code Annotated. Shortly after the complaint was filed, the Shelby County Board of Education was allowed to intervene ² in this suit to defend the constitutionality of a section of the act, T.C.A. § 49-2-201(c), as hereinafter discussed.

There are no disputed factual issues, and the trial court, without elaboration, held that the act, as amended, was constitutional except for the provisions of T.C.A. § 49-2-201(c), which the court declared to be unconstitutional.

Shelby County has appealed and presents the following issues for review as quoted from its brief:

1. Whether the Trial Court erred in finding the provisions of the Educational Improvement Act of 1992, adopted as Chapter 535 of the Public Acts of 1992, as amended by Chapter 40 of the Public Acts of 1995, is constitutional in all respects except for the provisions of T.C.A. § 49-2-201(c) in the specific areas as follows:

a. Whether T.C.A. § 49-2-203(a)(15) and § 49-2-301(d) violated Article XI, Section 17, of the Tennessee Constitution by abolishing the County Superintendent position.

b. Whether T.C.A. § 49-2-201(a)(1), (b); T.C.A. § 49-2-203(a)(15)(B)(I) and § 49-2-301(h)(1) are unconstitutional and in violation of Article I, Section 8, of the Tennessee Constitution and the Fourteenth Amendment of the U.S. Const. as being void for vagueness.

c. Whether the provisions of the Shelby County Home Rule Charter superseded the provisions of the Educational Improvement Act in Shelby County, Tennessee, relative to elected Boards of Education.

The Board of Education presents one issue for review, which, as quoted in its brief, is:

Assuming arguendo, that all other aspects of the Educational Improvement Act of 1991 are Constitutional, is T.C.A. § 49-2-201(c) likewise Constitutional or does it violate Article XI, § 9 of the Tennessee Constitution?

The first issue for our review is: "Whether T.C.A. § 49-2-203(a)(15) and § 49-2-301(d) violated Article XI, Section 17, of the Tennessee Constitution by abolishing the County Superintendent position."

Article XI, Section 17 of the Tennessee Constitution provides: "No county office created by the Legislature shall be filled otherwise than by the people or the County Court." ³ Article XI, Section 17 was designed "to preserve the right of choice to the people, either directly or through their designated agents, the justices of the county court." Carr v. State ex rel. Armour, 196 Tenn. 256, 261, 265 S.W.2d 556, 558 (1954). T.C.A. § 49-2-301(c), (d) (Supp.1995) provide:

(c) The office and position of county superintendent of public instruction is hereby abolished as of July 1, 1992, but any incumbent holder of such office on July 1, 1992, may continue to hold office and exercise the power for the term to which such person was elected by the people or the county legislative body, or until there is a vacancy in the office, whichever occurs first.

(d) In place of the abolished office of the county superintendent of public instruction, each local board of education is authorized to employ a director of schools, as provided for in § 49-2-203, subject to requirements of law. This director of schools may be referred to as "superintendent" but all references to or duties or powers of the former county superintendents of public instruction shall be deemed to be references to or powers or duties of the director of schools. Failure to change a reference to "county superintendent" to "superintendent" or "director of schools" shall not be deemed to continue to revive the former office of position of county superintendent, it being the intention herein to convert the former elected office of superintendent of public instruction to an administrative position filled by the applicable local board of education.

T.C.A. § 49-2-203(a)(14), (15) (Supp.1995) provide:

(a) It is the duty of the local board of education to:

* * *

(14) Develop and implement an evaluation plan for all certificated employees in accordance with the guidelines and criteria of the state board of education, and submit such plan to the state commissioner of education for approval;

(15)(A) Notwithstanding any other public or private act to the contrary, employ a director of schools under a written contract of up to four (4) years' duration, which may be renewed. Any such person transferred during the term of such person's contract shall not have such person's salary diminished for the remainder of the contract period. The board may dismiss the director for cause as specified in this section or in chapter 5, part 5 of this title, as appropriate. The director of schools may be referred to as the "superintendent" and references to or duties of the former county superintendents shall be deemed references to or duties of the director of schools employed under this section. The school board is the sole authority in appointing a superintendent.

(B)(i) Notwithstanding the provisions of subdivision (15)(A) to the contrary, in those local education agencies where the director of schools or school superintendent is not currently appointed by the local board of education, the legislative body of any such county or municipality may, by a two-thirds ( 2/3) vote taken within one (1) year of elections subsequent to the 1993 election and within one (1) year of subsequent elections, elect to retain the current method of appointing or electing such director or superintendent for an additional term of office or for a period of four (4) years, whichever is less. If this subdivision (a)(15)(B)(i) does not become a law more than one (1) year before the 1993 election for superintendent by the local legislative body of a county, then the legislative body may vote at any time prior to the election of the superintendent to retain the current method of election of the superintendent by the county legislative body. Any subsequent elections shall comply with the provisions of subdivision (a)(15)(B)(ii).

Shelby County asserts that the office of county superintendent is a "county office" within the meaning of Article XI, Section 17 of the Tennessee Constitution, and, therefore, the office may be filled only by vote of the people or by the Shelby County Commission. The County contends that the director of schools and the county superintendent of public instruction are the same "county office" as evidenced by the fact that the two positions entail identical responsibilities and duties, and that, therefore, the appointment of the superintendent by the board of education violates the Tennessee Constitution's mandate that county officials be elected by the people or the county commission. The crux of the County's argument is that the office of county superintendent has been unconstitutionally legislated out of existence.

The State, on the other hand, contends that the Legislature has simply determined that duties previously performed by a county officer (the county superintendent of public instruction) should now be performed by a county employee (the director of schools). The State contends that the director of schools is a county employee rather than a county officer, and, therefore, Article XI, Section 17 of the Tennessee Constitution does not apply to the manner of selecting the director of schools.

The application of Article XI, Section 17, turns upon the question of whether the "director of schools" is a "county office" holder or merely a county employee. In Cagle v. McCanless, 199 Tenn. 128, 285 S.W.2d 118 (1955), the Supreme Court of Tennessee considered the question of whether Chapter 31 of the Private Acts of 1955 was unconstitutional under Article XI, Section 17. The Act in question abolished the position of Superintendent of Public Instruction in Hamilton County and vested the superintendent's duties in a "Director of Schools." The Act provided that the position of director of schools would be selected by the county board of education. Prior to the enactment of Chapter 31, the position of county superintendent was filled by the County Court. The plaintiffs alleged that the Act was unconstitutional, because "it is attempting to abolish the office of the Superintendent of Public Instruction in Hamilton County Tennessee, and to create the same office with the identical duties and responsibilities under the name of Director of Schools of said county...." Cagle, 285 S.W.2d at 118. The plaintiffs essentially argued that Chapter 31 of the Private Acts of 1955 was an attempt by the...