Thu
Jun 29 2006
12:00 pm

According to the KNS, a federal judge has formally asked the Tennessee Supreme Court to rule on the validity of Knox County's charter. The request relates to a case involving adult businesses who are challenging local ordinances that were passed under what they (and Knox County Chancellor John Weaver) say is an invalid charter.

Also, Chancellor Weaver has granted the County's request for a 180 day stay of his decision invalidating the charter. This means the charter is still in effect. Does this mean term limits are back on? The ballot is already set, with previously-thought-to-be-term-limited candidates based on Weaver's earlier ruling that the charter, and therefore its term limits, were invalid. More hilarity ensures...

Number9's picture

void the election for County Commission

rikki wrote:

It is now too late to salvage this year's elections. Already defective in execution, they will now be defective in outcome.

For the first time in this entire process I now agree the election for Knox County Commission seats is so flawed it should be voided and moved to November in a special General election. The Primary election for County Commission could be held in September or October in another special election.

There are several other reasons. The most important is that there are too many levels of voter disenfranchisement. Since the Charter is valid and never reached the point of being invalid the Tennessee Supreme Court ruling that decreed term limits are in place for the offices of Knox County Mayor and Knox County Commissioners stands. The Supreme Court ruling must be obeyed.

What other choice is there than to void the election for the Knox County Commission seats?

There are nine ineligible candidates for Knox County Commission who are term limited and cannot serve. This is 50 percent of the Commission seats. The election cannot go forward under these conditions.

This persistent lack of leadership from all levels of local government has tarnished this election. People will stay home and this will affect the Primary Election for US House and Senate seats further disenfranchising voters. The apathy and disgust created in the Knox County Commission election cannot be allowed to spread to other elections.

Rachel's picture

I hadn't thought about this

I hadn't thought about this before, but if the charter is still valid for 180 days, then it seems to me that means term limits are still valid.  Which means the "term-limited" guys who get elected in August won't be eligible to serve when Commission convenes in, when, Sept.?

My, my.  What a mess. 

rikki's picture

brilliant!

When was the deadline for finalizing the ballot? Monday? Weaver postponed responding to the request for a stay just long enough to ensure the term-limited incumbents would be on the ballot. Awesome. Even at my cynical and conspiratorial worst I did not anticipate such a subtle tactic. Weaver is far too clever for ordinary citizens to have a fighting chance.

Number9's picture

Weaver postponed responding

Weaver postponed responding to the request for a stay just long enough to ensure the term-limited incumbents would be on the ballot.

That may have been too clever by half.

By responding to the request after the ballot deadline I believe that will provide cause to void the election. There are plenty of other reasons also. If someone with standing sues Knox County to void the election for County Commission all of the fancy dancing may have been too fancy.

I wonder if Corker's people have figured out that all the local mischief is going to hurt their boy.

Textbook case of voter disenfranchisement. This isn't over by a long shot.

Scott1202's picture

Are term limits still in effect?

If the charter is still in effect, then term limits should still be in effect. Term limits have been ignored since 1995, I'm sure they will continue to be ignored. On another note, our term limits amendment doesnt just specify county commissioners as is the case in Shelby County. Our amendment states that "No individual shall be permitted to hold the same elected office of Knox County Government for more than 2 consecutive terms".

I'm not an attorney, but I'm fairly sure "no individual" includes the Sherriff, Register, Trustee, etc... not just county commissioners.

Number9's picture

On another note, our term

On another note, our term limits amendment doesn't just specify county commissioners as is the case in Shelby County. Our amendment states that "No individual shall be permitted to hold the same elected office of Knox County Government for more than 2 consecutive terms".

That is where the actual problem is. The term limits referendum as written was not constitutional. There is no problem with the Knox County Charter. Never was. The problem was with the term limits referendum of 1994.

The voters of Knox County do not have the authority to reach across to Nashville and term limit Constitutional Offices like the Sheriff or Clerks office. This is exactly what the State Attorney General opined in 1994 after the term limits referendum was approved by voters in Knox County. The only way to term limit State Constitutional offices would be an amendment to the State Constitution. Every County Commissioner that has served more than two terms since 1994 has violated their oath of office and violated the Knox County Charter.

Term limits for the Knox County Mayor (then called County Executive) and the Knox County Commission have been valid since 1994. They have simply been ignored by County Commissioners. No one called their bluff until the Tennessee Supreme Court ruled in the Bailey decision.

What did our Commissioners do? They broke their oath and sued to invalidate the Charter. If this is not treason then what do you call it?

Those people that insist that the Sheriff is term limited do not understand the law and unintentionally provide comfort and cover to these lying Commissions that refuse to obey the law.

But can you fault anyone for this mistake? None of the local newspapers or TV stations have done anything to explain what the law about term limits of Constitution Offices is. They have left this vague and impossible to understand. How can our local media be trusted when they allow this confusion to prevail?

The reason the Bailey decision on Shelby County term limits specified only County Commissioners is that they are the only ones affected. The Supreme Court ruled correctly.

One of the great mysteries is the behavior of County Law Director Mike Moyers. Why has he refused to take action? Why hasn't Mayor Mike Ragsdale insisted the term limited Commissioners stand down?

We need leadership but what we get is confusion.

Old Hickory's picture

County Leadership, Leadership in General

You will find no leadership in county government until you come across individuals whose role in life is not dependent on their county employment status, such that they are not afraid of getting tossed at the ballot box or at the county's human resources department. Local County Leadership is not spineless, they just don't have any way to make a good living, with benefits, without working the pubic trough. Where else would Ragsdale, Arms, Werner, Moyers make $100,000 plus perks, plus benefits. Not in Knox County, so what happens, instead of providing leadership to keep the county moving forward, they provide protection of the status quo, so they can keep their overpaid position, offending no one, letting down everyone.

If Ragsdale or Moyers were truly leaders, they would take charge of the circumstances we find ourselves in, make some decisions, rather than spinning and postulating, waiting for some other person or entity will decide what happens. Thats not leadership, that's rank incompetence, which is not tolerated in the private sector.

rikki's picture

more confusion

Actually, the Bailey decision was limited to the county mayor and commission because the Shelby term limits law specifically and exclusively referenced those offices. The written opinion in that case makes it quite clear your assertions are incorrect. The Chief Justice openly mocked the 1994 AG opinion.

The Constitution requires the duties of the "Constitutional officers" be retained by a chartered county, but it does not require the offices themselves be retained. A chartered county could convert Register of Deeds to an appointed position if it wished or merge those duties with the duties of the Trustee. Paraphrasing, the court said that if a county can reassign the Constitutional duties or convert the offices from elected to appointed, it can certainly impose term limits on them.

Knox County's term limits referendum is consistent with the State Constitution as interpreted by the Supreme Court.

This matter has been discussed in at least two local newspapers. 

Number9's picture

Actually, the Bailey

Actually, the Bailey decision was limited to the county mayor and commission because the Shelby term limits law specifically and exclusively referenced those offices.

Had the term limits referendum of 1994 in Knox County been worded only to include the then County Executive, now County Mayor, and the Knox County Commission we would have had term limits in 1994 and the Charter would have never been challenged.

Why the wording of the term limits referendum of 1994 was not corrected is an open question. Was it a planned loophole? Not by the people that brought forward the referendum but from the leaders who knew it was worded so as to be unconstitutional. That was the original failure in leadership. To be fair Ricard Beeler said no one with standing came forward to challenge it. But the County Executive or any member of Knox County Commission would have had standing.

Yet they did nothing.

Knox County's term limits referendum is consistent with the State Constitution as interpreted by the Supreme Court.

I don't understand what point you are trying to make in that statement. Are you suggesting that the Bailey decision is flawed somehow?

Johnny Ringo's picture

The term limits language was

Had the term limits referendum of 1994 in Knox County been worded only to include the then County Executive, now County Mayor, and the Knox County Commission we would have had term limits in 1994 and the Charter would have never been challenged.

Since it was the five County Commissioners who challenged the Charter in the first place, not the Sheriff, the Trustee, the County Clerk or the other county-wide officers, I fail to see how you can support this argument. Wouldn't the term limited Commissioners have been just as motivated to challenge the Charter under your suggested term limits language?

Why the wording of the term limits referendum of 1994 was not corrected is an open question. Was it a planned loophole? Not by the people that brought forward the referendum but from the leaders who knew it was worded so as to be unconstitutional. That was the original failure in leadership.

The term limits language was not drafted by any county official, but by a citizen's organization called Tennessee Term Limits. Because it was placed on the ballot by petition rather than by the actions of any government official, no government official had any input into that language. Neither Richard Beeler, nor the County Commission nor Tommy Schumpert could have in any way influenced how a citizen-brought ballot petition was to be worded.

In other words, the language was not the result of a "failure of leadership"; the leadership of the county had nothing to do with it. If you don't like the way it was written, blame those in the Tennessee Term Limits organization who wrote it and got it enacted, not those who were in office in 1994.

Number9's picture

I agree their motivation would not change

Wouldn't the term limited Commissioners have been just as motivated to challenge the Charter under your suggested term limits language?

I agree their motivation would not change but what grounds could the five oath breaking Commissioners have used to challenge the Charter? It was the opinion of the State Attorney General that effectively put the brakes on term limits.

Beeler said he knew the referendum was worded so as to be unconstitutional. He had no standing to contest it. I am not blaming Beeler. But did Knox County Commission know it was worded incorrectly? I think so. If Beeler knew wouldn't they? It was not in their best interest to help Tennessee Term Limits craft a correctly worded referendum. There in is the problem. They serve their interests over and above the interest of the people.

I am not blaming Tennessee Term Limits for not knowing that the referendum was flawed. Yes Shelby County did a better job of doing their homework and they got it right. That doesn't mean it was easy to see there was a problem.

I also understand that we can impose term limits any time we want by voting. But apparently that is much easier said than done. This is not unique to Knox County or Tennessee. Apathy is a cancer that has spread across the nation.

Who had standing to bring a suit to get the wording right? Wouldn't that be Knox County Commission?

Apparently law suits are the new form of government in Knox County. Voting is passe. What you need is money and lawyers.

Johnny Ringo's picture

I think you're missing something

I agree their motivation would not change but what grounds could the five oath breaking Commissioners have used to challenge the Charter?

The five commissioners didn't challenge the charter on the basis of the language of the 1994 term limits referendum; they challenged it on the basis of the exclusion of the other county-wide officials (the Trustee, the Sheriff, etc) from the Charter, a grounds for challenge that no one ever brought up until Chancellor Weaver suggested it himself in another case. And once it became apparent during the trial that the Charter had not been "proclaimed" by the Secretary of State, they challenged it on that basis as well. The actual language of the 1994 term limits referndum was irrelevant to their challenge.

You may be right that the 1994 language is too broad, or rikki may be right that the Supreme Court's Bailey decision is broad enough to encompass those other county wide officials. But that question won't be answered until after we know whether or not a Charter must include all county wide officials within its provisions - or until the county actually adds them through the Charter Review and referendum process.

Number9's picture

The five commissioners

The five commissioners didn't challenge the charter on the basis of the language of the 1994 term limits referendum; they challenged it on the basis of the exclusion of the other county-wide officials (the Trustee, the Sheriff, etc) from the Charter, a grounds for challenge that no one ever brought up until Chancellor Weaver suggested it himself in another case.

Let's think about which came first. The five breakers of the oath could not have challenge the 1994 term limits referendum IF the term limits referendum had been written according to Tennessee Constitutional law. That was the content of the obiter dicta Weaver spoke of aloud. That was what opened the door.

The return receipt from the Secretary of State has no legs. But it is interesting how the State can not find the amended Charter from Shelby County. Maybe the problem is in Nashville? The term limits referendum took affect upon the vote of the people. The return receipt is a non-issue.

Several questions remain unknown. Weaver could have specified the two deficiencies, suggested a course of action, and not ruled the Charter is invalid. Why did he not do this? Why did Weaver muse out loud that the Charter might not be valid?

There were many attorneys involved in the creation of both the Knox County Charter and the Shelby County Charter. All studied and considered the law and decided it was redundant to define offices that were already defined in the Tennessee Constitution. Yet Weaver stands alone in his interpretation that these offices must also be defined in the Tennessee Constitution. What grounds could the Supreme Court use to uphold his ruling?

We are living through the hell of lawyers fighting over what the meaning of the word “is”, is. The Supreme Court ruled that term limits apply to the County Mayor and County Commission. Local elected official holders chose not to obey the law for 12 years because they felt they had cover. Because they felt the law did not apply to them. They feel they are above the law. They interpret what the law means. When the Supreme Court brought the law to them they sued to invalidate the Charter.

Yet there are some overlooked issues. Weaver had not made his ruling until after the Primary Election. Greg Mackay told us he could not remove the names of the term limited incumbents from the ballot due to State Election law. If half of the Knox County Commission was ineligible to serve, isn’t the Primary Election flawed? If so, should it not be voided? How can an election be certified when half of the office holders are not eligible to serve? Didn't Brook Thompson ignore the Supreme Court ruling when he allowed the election to be certified?

So in this world where only court cases matter and the law can be ignored until excruciatingly detailed court rulings remove all possible doubt, isn't the best way to obtain justice is to sue to invalidate the Knox County Primary Election?

rikki's picture

good ol PubIX

No one can take an issue and get it so completely jumbled into bewildering nonsense like #9 can. I'm not even going to try to straighten out all the statements about the term limits referendum that actually apply to the charter referendum and vice versa. Instead, I'll just state my claims as simply as I can:

The 1994 term limits referendum is not unconstitutional. The Bailey decision makes it clear that Knox County voters can impose term limits on any non-judicial office, including the so-called "constitutional offices." The referendum is fine as written and will be upheld by the TN Supreme Court when and if the matter gets before them.

Johnny Ringo's picture

You're probably right, but...

The Supreme Court is going to have to engage in some pretty interesting mental gymnastics in order to overturn Weaver's decision AND uphold the Knox County term limits language as written. To overturn Weaver, the Court is going to have to find that the countywide officials in question - the Sheriff, Trustee and all - do not have to be "created" by the Charter, but may exist alongside the Charter as officers whose offices are created by the State's Constitution and laws. And THEN the Court is going to have to find that even though these officers are not "Charter officers", they may nonetheless be term-limited by the Charter.

The Supreme Court is, at the end of the day, the Supreme Court, and I guess it can do whatever it likes whether it makes sense or not. But I'm going to be very interested to see how they can explain Charter provisions affecting non-charter officers.

Number9's picture

Rikki, if you would be so kind,

The 1994 term limits referendum is not unconstitutional. The Bailey decision makes it clear that Knox County voters can impose term limits on any non-judicial office, including the so-called "constitutional offices." The referendum is fine as written and will be upheld by the TN Supreme Court when and if the matter gets before them.

Did I write that the 1994 term limits referendum is unconstitutional? No, I did not.

Part of the 1994 term limits referendum was unconstitutional. So opined the Tennessee State Attorney General in 1994. Part of it was not. As the Tennessee State Supreme Court recently ruled.

So which is which.

The part of the 1994 term limits referendum that was not constitutional was the part where "constitutional offices" were included in the term limits referendum.

The part of the 1994 term limits referendum that was constitutional was the part where "the non-constitutional offices" of County Mayor and County Commission were included in the term limits referendum. This was upheld by the Tennessee State Supreme Court.

The Knox County Charter is not the problem. The problem was an incorrectly written term limits referendum. After the Supreme Court ruled in the Bailey decision the 1994 referendum is no longer a problem. But Weaver had to go and throw a monkey wrench into the gears. Weaver overstepped and will be reversed.

Rikki, if you would be so kind, could you explain your interpretation that the, "Bailey decision makes it clear that Knox County voters can impose term limits on any non-judicial office, including the so-called "constitutional offices." You are the first I have read to propose this interpretation and I do not understand your reasoning.

Johnny Ringo's picture

I'm not sure either of you is completely correct

#9, the Bailey decision was limited in effect to County Commissioners in Shelby County because the Shelby County term limits language was itself limited to County Commissioners and the County Mayor, the only two offices which arguably were "created" by the Shelby County Charter, and since it was only Shelby County Commissioners that challenged the language, the Supreme Court limited the scope of its holding to the Commissioners.

On the other hand, the Court was pretty emphatic and far reaching in its language, so its not a stretch to say, as rikki does, that given the chance the Court will hold that term limits can apply to any office created by a county charter, including the office of Sheriff, Trustee, Register of Deeds, etc, IF they are "created" by the charter.

That's the trick though. Neither the Shelby County charter nor the Knox County charter "creates" those offices, and as I stated above I really wonder how a Charter can limit the terms of offices that are outside of the scope of the charter.

Number9's picture

That's the trick though.

That's the trick though. Neither the Shelby County charter nor the Knox County charter "creates" those offices, and as I stated above I really wonder how a Charter can limit the terms of offices that are outside of the scope of the charter.

I have been consistent in language. The Charter cannot term limit "constitutional" offices. Neither can an incorrectly worded term limits referendum.

If you want to term limit the Sheriff, which is the elephant in the room no one will talk about, then you must amend the Tennessee Constitution.

Whether you think that is fair or not is irrelevant.

It is very simple, the Tennessee Constitution trumps the County Charter.

rikki's picture

In the Bailey ruling, the

In the Bailey ruling, the Supreme Court interpreted the charter provisions very broadly, referencing the right of a county (or any democratic body) to dissolve and replace its government. They noted that it is the duties of the "constitutional officers" that must be preserved, not the offices. The duties of the Register of Deeds could be transferred to the executive or the legislature or be retained by an officeholder who could remain elected or be converted to an appointed position. Noting this wide range of possibilities in altering how the duties of the Register are performed, the court called it "an unworkable anomaly" to contend that imposing term limits on the office is not allowed. (That and a subsequent remark about how "absurdities should be avoided" are what I consider mockery of the AG opinion)In essence, the Supreme Court considers the charter provisions a way for a county to completely reinvent its government, with the only limitations being that the chartered government have an elected executive and legislature and perform all the duties the state asks of any county.

Weaver's ruling is wrong more in remedy than in finding. Since a charter is ratified upon majority approval, it could be argued that declaring it invalid is unconstitutional. Leaving the "constitutional offices" undefined may have been a poor choice by both Shelby and Knox Counties. A declaration like "No right, power, duty, obligation or function of any officer, agency or office shall be retained or continued unless this charter expressly so provides, or unless such retention or continuation be required by the Constitution of Tennessee" would have made it clear that offices unmentioned in the charter were to be kept, and there would have been no question about the charter being "incomplete." Still, I'm not that good at mimicking legalese. That language comes from the state Constitution itself, from the section describing how a county can adopt a charter government. Putting it in the charter would just be a redundancy, but now Knox County has assembled a charter review committee to write just such a redundancy.

Weaver does not have the power to unratify the charter. He is obligated to repair it. Other than being properly filed with the state, the charter does not actually need repair. Assuming it does, however, it can be fixed by a review committee and a vote of the people or by a two-thirds vote of county commission. In other words, 13 commissioners could vote to add redundant language to the charter at their next meeting and put the question of the charter's validity to rest.

Stop laughing.

Johnny Ringo's picture

Close, but...

In other words, 13 commissioners could vote to add redundant language to the charter at their next meeting and put the question of the charter's validity to rest.

I'm not laughing, and I wish it was that easy rikki, but no. Although 13 members of County Commission can propose a charter referendum question, obviating the need for a charter review commission, any change to the charter still requires a vote of the people. Since its too late to amend the August ballot, whether you rely on a charter review committee or the county commission, there's just no way to fix the charter before November.

rikki's picture

true

Thanks for the correction.

btw, though I didn't see your 6:15 post before publishing my last post, I think I addressed your point. The gymnastics to which you refer are the "unworkable anomaly" of the Bailey decision. Weaver and the TSC are in agreement on that aspect of the matter -- a half-charter, half-state county government is indeed unworkable, but the TSC could reverse Weaver without reverting to a hodgepodge county/state beast by noting that the enabling legislation allows for a charter that does not explicitly define every required duty, defaulting to the state-created format where necessary.

In some ways, the Shelby approach makes sense. A charter that explicitly attempts to define every required duty runs the risk of omitting something and winding up truly incomplete. Imagine, for example, if a charter eliminates the register of deeds office entirely and assigns some of the tasks to the executive branch and some to the trustee. If they omit some function or leave some discrepancy in language that results in confusion, there is no register of deeds to assume the missing duty, so you really do have an incomplete charter. The safest way to assure no disagreement between state-required duties and charter-defined duties is to simply revert to the constitutional language when you do not want to vary from it, which is what Shelby did, Knox copied and the enabling legislation allows.

Johnny Ringo's picture

The problem is...

but the TSC could reverse Weaver without reverting to a hodgepodge county/state beast by noting that the enabling legislation allows for a charter that does not explicitly define every required duty, defaulting to the state-created format where necessary.

I think Weaver's critique of the charter was not based upon the failure to define the duties of the countywide officials, but upon its failure to "create" them; that is, its failure to set forth the qualifications for each office, or even to say that the Charter creates such office. Remember that in Bailey the Court upheld term limits because they found that term limits were a "qualification for holding office", and as such the enabling legislation allowed county charters to modify or amend such qualifications. But where a charter fails to undertake to define the qualifications for an office - fails even to mention that such an office exists - then how can that charter set forth new qualifications (like term limits) for an office that is not otherwise defined anywhere in the charter? Hence my continuing puzzlement over how the TSC can overturn Weaver's decision AND uphold all of the Knox County term limits provision as written.

I certainly think that the Court could uphold the charter and apply the term limits provision exclusively to those offices "created" by the Knox County charter; i.e. the Commission, the Mayor, the Law Director and (maybe) the School Board, but I don't see how they can go beyond that in any logical sense unless the charter is amended to specifically "create" those offices. As I said before though, being the Supreme Court, they can pretty much do whatever they want, and I doubt very much that they will care whether it makes much sense to me or anyone else.

rikki's picture

creation myth

Where in the law does this notion that a charter must explicitly create each office exist?

Johnny Ringo's picture

In Chancellor Weaver's decision

Where in the law does this notion that a charter must explicitly create each office exist?

Basically, it is not clearly spelled out in the enabling statutes, which say only that the charter must provide for all the "executive and administrative duties" of the county government. As I understand Chancellor Weaver's decision, he reads that as requiring the "creation" of all the countywide offices. But the answer to your question is that such a requirement is nowhere explicity set forth in law, which is why neither Knox County nor Shelby County included those offices within the purview of their charters, and why Shelby county is as concerned about Chancellor Weaver's decision as Knox County is.

R. Neal's picture

Also, just to clarify an

Also, just to clarify an error that has been repeated several times in this thread and elsewhere, the Knox County Charter very clearly creates the office of sheriff and its duties.

Number9's picture

Also, just to clarify an

Also, just to clarify an error that has been repeated several times in this thread and elsewhere, the Knox County Charter very clearly creates the office of sheriff and its duties.

How can the Charter create a "constitutional" office? Wasn't the office of Sheriff created before the Charter?

R. Neal's picture

From the charter, under

From the charter, under Article III "Executive Branch":

Sec. 3.09. Sheriff.

The Sheriff shall be the Chief Law Enforcement Officer of the County and is charged with the enforcement of such ordinances as provided in this Charter. The Sheriff shall be elected by the qualified voters of Knox County according to law, and shall have all powers and duties, either expressly or impliedly, now or hereafter conferred by law and this Charter.

Number9's picture

The Sheriff shall be elected

The Sheriff shall be elected by the qualified voters of Knox County according to law, and shall have all powers and duties, either expressly or impliedly, now or hereafter conferred by law and this Charter.

"Conferred by law and this Charter" means both the Tennessee State Constitution and the Knox County Charter. I don't understand how that "creates" the office of Sheriff.

Constitution trumps Charter.

R. Neal's picture

OK, sorry. "Defines".

OK, sorry. "Defines". Whatever. I don't even know what you are talking about any more, except maybe shilling for Tim Hutchison. Any normal person with any reasoning ability can read the charter and see that term limits apply to all elected officials except judges, and that the office of sheriff is an elected official. Your argument seems to be that the constitution doesn't allow charters at all.

(The charter also allows for severability if any part is found to be invalid or illegal, and also allows for the state constitution to apply for anything not covered. But competing interests seem to want to interpret these provisions in various different ways depending on their agenda. The argument ought to be a) what's wrong with the charter, and b) how do you fix it. The rest of it is cheap and poorly performed local political theater.)

Number9's picture

I don't even know what you

I don't even know what you are talking about any more, except maybe shilling for Tim Hutchison. Any normal person with any reasoning ability can read the charter and see that term limits apply to all elected officials except judges, and that the office of sheriff is an elected official. Your argument seems to be that the constitution doesn't allow charters at all.

I am in agreement with the 1994 opinion of the State Attorney General. I am not shilling for any officer or office. I am pointing out that a local power play is being made to take local control over State Constitutional offices. The Constitution does allow Charters and I am not contesting that. I support the Charter and Home Rule.

It is clear that there are "competing interests" that wish to interpret the law to their advantage and gain. You are completely correct about severability. Weaver over reached when he threw out the baby with the bath water.

Whatever people want the law to be is irrelevant. The law is as it is written. The Knox County Charter cannot trump the State Constitution. Weaver's ruling should be found unconstitutional. If the law is to be changed it should be done by Constitutional Amendment or Charter Amendment, not by Chancellor Weaver.

My premise is simple. There is nothing wrong with the Charter. Part of the 1994 term limits referendum was flawed. You are correct that anyone who can read can see that the referendum applied to all offices. The State Attorney General opined that was not Constitutional. Do you have issue the 1994 ruling by the State Attorney General?

Rachel's picture

You are correct that anyone

You are correct that anyone who can read can see that the referendum applied to all offices. The State Attorney General opined that was not Constitutional. Do you have issue the 1994 ruling by the State Attorney General?

Like Rikki, I'm having trouble following your arguments(?), but are you now implying that the AG's opinion has some weight?  Because it doesn't, you know.  It was just an opinion - one that has now been definitely rejected by the TCS in the Shelby County case.

Number9's picture

Like Rikki, I'm having

Like Rikki, I'm having trouble following your arguments(?), but are you now implying that the AG's opinion has some weight? Because it doesn't, you know. It was just an opinion - one that has now been definitely rejected by the TCS in the Shelby County case.

I understand the difference between an opinion and a ruling.

I had asked Rikki about how Bailey trumps the AG opinion. Did not get a reply. You seem to agree that the State Attorney General opinion was, "definitely rejected by the TCS in the Shelby County case." Can you briefly explain how Bailey rejects the 1994 State Attorney General opinion?

Richard Beeler did a great job explaining what I am writing about on "Inside Tennessee" and on the "Lloyd Daugherty" program. If one of you will explain what you mean I would be glad to admit if I am wrong. Why is it hard to understand that the Charter is not the problem?

Rikki, if you would be so kind, could you explain your interpretation that the, "Bailey decision makes it clear that Knox County voters can impose term limits on any non-judicial office, including the so-called "constitutional offices." You are the first I have read to propose this interpretation and I do not understand your reasoning.

rikki's picture

yes, indeed

a local power play is being made to take local control over State Constitutional offices.

Giving counties control over their office holders is the whole point of home rule and charter government. This "power play" happened back in 1988, and voters approved it.

The position you are advocating was called "an unworkable anomaly" by the Chief Justice of the state Supreme Court because it creates an absurd hybrid of home rule government and state-subservient government. Why someone so passionate about "taking back our government" wants the state to have power over that government is beyond me.

Rachel's picture

Can you briefly explain how

Can you briefly explain how Bailey rejects the 1994 State Attorney General opinion?

Well, for one thing, because it's a TCS ruling and not an AG opinion.

Also, the AG opined that term limits couldn't be applied to county officials.  The TCS in Bailey clearly said term limits could be applied to county commissioners in home rule counties, and certainly implied that they could also be applied to other elected county officials.  Like most folks, I'm betting that when the TCS rules further, it will explicitly allow term limits for other county officials, as folks intended when they voted for term limits.

I'm no lawyer, and I don't pretend to understand all the fine pts of this the way Rikki and Johnny do, but I don't find Bailey that difficult to read.

Number9's picture

Why someone so passionate

Why someone so passionate about "taking back our government" wants the state to have power over that government is beyond me.

I am passionate about returning government to its rightful owners the people. It is currently held by a political machine that does not serve the people.

I would prefer that the Courts and the Sheriff's office not be under the control of the political machine.

Checks and balances. Judges should be elected not appointed. The Top Cop should be elected. The Top Cop should be the Sheriff.

I think most people would agree our local government is broken and in need of repair. I do not trust this government to repair itself. You need look no farther than Ragsdale's Charter Committee to understand.

Weaver caused this. He had a reason. Is that reason to bring the Sheriffs office under the control of the Charter?

If so say hello to Metro Government and more compromise and corruption.

Rachel's picture

Is that reason to bring the

Is that reason to bring the Sheriffs office under the control of the Charter?

If so say hello to Metro Government and more compromise and corruption.

If you think your conclusion follows from your premise, you need a course in logic.

rikki's picture

no such thing

There is no such thing as a "constitutional office" in a legal sense. That phrase is just a convenience for referring to every office except county mayor and commissioner. It's a fiction used by those wishing to subvert term limits. The officials described by that phrase are agents of the county in which they serve, not agents of the state. A chartered county has authority over them, including the authority to eliminate them and reassign their duties if a majority of voters so wishes.

Johnny Ringo's picture

"Constitutional Officers"

There is no such thing as a "constitutional office" in a legal sense.

Actually the term "constitutional officers" comes from Article VII, Section 1, Paragraph 1 of the Tennessee Constitution, which reads:

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. 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.

What the Court in Bailey had to decide, and what the Court in Jordan may have to decide is whether Paragraph 3 of Art. VII, Sec. 1 supercedes Paragraph 1. Paragraph 3 states:

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.

Number9's picture

From rikki:There is no such

From rikki:

There is no such thing as a "constitutional office" in a legal sense. That phrase is just a convenience for referring to every office except county mayor and commissioner. It's a fiction used by those wishing to subvert term limits. The officials described by that phrase are agents of the county in which they serve, not agents of the state. A chartered county has authority over them, including the authority to eliminate them and reassign their duties if a majority of voters so wishes.

Not exactly. In fact not at all. That is simply wrong.

Tennessee Code Annotated § 5-1-210 prescribes the
contents of a county charter and provides:

(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.

there is also:

Article VII, Section 1, Paragraph 1 of the Tennessee Constitution, which reads:

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. 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.

From Johnny Ringo:

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.

Further Johny Ringo ponders:

What the Court in Bailey had to decide, and what the Court in Jordan may have to decide is whether Paragraph 3 of Art. VII, Sec. 1 supercedes Paragraph 1. Paragraph 3 states:

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.

Number9 asks:

Are County Commissioners office holders from an article in the Tennessee State Constitution? No, they are office holders from an article in the Knox County Charter.

The Jordan case Johnny Ringo refers to is what I have called the "hell no we won't go five" case from Diane Jordan, David Collins, Billy Tindell, Phil Guthe, and John Griess, in other words the Weaver case.

I do not see that Weaver can be upheld. Weaver basically does away with "constitutional offices". To upheld Weaver would violate:

Tennessee Code Annotated § 5-1-210

(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.

R. Neal's picture

Doesn't TCA also say that

Doesn't TCA also say that constitutional county officers, including sheriff, are to be elected for a term of four years? Doesn't say anything about allowing for subsequent four year terms after the first four years. I mean, if we are going to parse what the meaning of is is, then that sounds like term limits of one term to me! Heh.

Number9's picture

Hmm, I have said this several times...

Hmm, I have said this several times...

Look Under Bingo

Knox County officials are being excoriated for not sending a copy of the Knox County Charter to the Secretary of State’s office in Nashville. This failure is one reason given by Chancellor John Weaver in ruling the charter invalid.

Turns out the Secretary of State’s office doesn’t have a copy of the Shelby County charter on file either.

Officials are now questioning the odds of two of the largest counties in Tennessee, and the only two charter counties, both forgetting to send documentation to the Secretary of State. It’s beginning to look more like some bureaucrat put the two charters in a file and it got misplaced.

You will recall there was some turmoil within the Secretary of State’s office back in the day. Secretary of State Gentry Crowell committed suicide during an investigation of big money bingo and official corruption and is thus not around to be questioned in the matter.

(link...)

bill young's picture

how we got here

The Consitutinal Convention of '77 was called because the bankers wanted art.XI;sec 7 amended....it read "The Legislature shall fix the rate of interest....not to exceed 10% per annum."...the amendment read:"if no applicable statute is hereafter enacted...the rate shall not exceed 10% per annum."...which repealed the 10% limit on interest rates.The other major amendment(art.VII;sec.1) was a favor for Fate Thomas,the politically powerful sheriff of Davidson County;at that time,the sheriff served two yr.terms & "no person shall be eligible to the office of sheriff more than six years in any term of eight years."Thomas didn't cotton to those two years out of office.So the amendment read:"for terms of four years."..which repealed limits on the terms of office for the sheriff & why only home-rule counties can limit terms.In 1978,the voters ratified both amendments.I wish both had failed. I voted for Jake in '78 but have no clue how voted on those amendments or if I voted on them at all.

Scott1202's picture

Not exactly. In fact not at

Not exactly. In fact not at all. That is simply wrong.

Tennessee Code Annotated § 5-1-210 prescribes the
contents of a county charter and provides:

(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

Number9,

Our term limits law,(which is what it is as amended to our charter), in no way diminishes the duties of any elected official in our county government. It limits their terms. Their duties remain unchanged.

Number9's picture

Number9, Our term limits

Number9,

Our term limits law,(which is what it is as amended to our charter), in no way diminishes the duties of any elected official in our county government. It limits their terms. Their duties remain unchanged.

I wasn't referring to term limits in that example. I was referring to having the office of Sheriff under control of the Charter which is the end result of the Weaver ruling. Not only is it bad constitutional law but it would open the door for Metro Government.

There are three forms in government in Tennessee. Constitutional Government, Charter Government, and Metro Government.

Courts and the office of Sheriff should not be under the control of the Charter or Metro. There needs to be a firewall. We have divided government for a reason. I have no problem with term limits for the Sheriff. Just do it the right way.

rikki's picture

9 is for nuts

There are three forms in government in Tennessee. Constitutional Government, Charter Government, and Metro Government.

Don't forget the fourth form, the hybrid Constitutional/Charter form devised by the AG in 1994, recently dubbed "an unworkable anomaly" by the Supreme Court, but still heroically championed by PubIX. There's also the fifth form which may be exclusively yours, the Historically Constitutional Charter Government, wherein a county ratifies a charter, but due to having once not had a charter, never really does because the Constitutional Government that preceded it trumps the charter by virtue of having been around longer.

 Also, since replying to a question from you within four hours of you posing it is insufficient to prevent you from accusing me of not replying at all, I can only conclude that you remain too insanely mean-spirited to converse with. Future queries you may direct to me will indeed be met with no reply at all.

James D.'s picture

By the way, I think the

By the way, I think the Sheriff is really only required by State Law to operate the jail system. That is how it should be in Knox County. Let the Sheriff run the jail, and have an appointed "top cop" to protect and serve...this would ensure a well-qualified cop that could focus on law enforcement, rather than countywide political empire building.

Bill Young's picture

sheriff

Thats true,the sheriff is only required to run the jails...that's the way it is in Nashville...Davidson County Sheriff Fate Thomas ran a political machine so powerful it could curry favor with the '77 Constitutional Convention...in '90 Thomas was sent to jail for mail fraud & theft.

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