August 30, 2007
RE: Local approval of general laws of local application
Dear Director:
We write to bring to your attention what we believe is an oversight in the drafting
of general bills of local application. What is being overlooked is the constitutional
requirement that acts local in form or effect be approved locally before the act can take
effect. Several general acts of local application passed in the 2007 session, and not one
required in the act itself that it be approved locally. Although this constitutional issue is
not often contested, we feel that this is an issue that could cause these acts, if contested,
to be ruled invalid.
The constitutional provision requiring local approval of private acts and acts
local in form or effect is in Article XI, § 9:
. . . [A]ny act of the General Assembly private or local in form or effect
applicable to a particular county or municipality . . . shall be void and of no effect
unless the act by its terms either requires the approval by a two-thirds vote of the
local legislative body of the municipality or county, or requires approval in an
election by a majority of those voting in said election in the municipality or
county affected.
Several of the acts passed in 2007 and in past years have required municipalities or
counties to implement the act by passing an ordinance or resolution by a two-thirds vote,
and, leaving aside the obvious lack of a requirement that the act itself must receive
approval, it might be argued that this satisfies the local approval requirement. In most
cases, however, the requirement for a two-thirds vote to pass an ordinance or resolution is
different from the two-thirds vote required to approve a local act.
Municipalities, for example, operate under differing charter and general law
provisions, but, in the absence of direction from one of these sources, the question
whether an ordinance or resolution has received a two-thirds vote would be determined
by rules of procedure adopted by the governing body. Most municipalities use Robert’s
Rules of Order. Under these rules, a two-thirds vote is two-thirds of those voting when
there is a quorum. Counties operate generally under Tennessee Code Annotated, § 5-6107, under which a two-thirds vote would be two-thirds of the sitting members.
In contrast to these rules, Tennessee courts have prescribed that a two-thirds vote
to approve a local act means a two-thirds vote of the total authorized membership of the
governing body. The constitutional requirement is not satisfied by a two-thirds vote of
those present, a two-thirds vote of those voting, or even a two thirds vote of the sitting
members. See State ex rel. Doyle v. Torrence, 310 S.W.2d 425 (Tenn. 1958), and
Kesterson v. McKee, 527 S. W.2d 144 (Tenn. App. 1975).
The constitutional requirement for local approval of local acts was added in 1953
as a protection for local governments. Now local governments find themselves accepting
extra authority, and thus relinquishing this protection, through local acts that do not
require local approval. This might make it more difficult for local governments to object
if some members of the General Assembly decide sometime in the future to restrict local
authority, or do other harmful things, through local acts that do not require local
approval.
The constitutional requirement appears to us clear and relatively easy to comply
with. We urge you to try to ensure that private acts and general laws local in effect
conform to this requirement, and we offer our help in doing this.
Sincerely,
MUNICIPAL TECHNICAL ADVISORY SERVICE
Dennis Huffer
MTAS Legal Consultant
COUNTY TECHNICAL ASSISTANCE SERVICE
Libby McCroskey
CTAS Legal Consultant
cc: Mike Garland, Executive Director, CTAS
Bob Schwartz, Executive Director, MTAS