December 3, 2009
Dear Members of Charter Commission:
You have the following question: Can an initiative and referendum provision be put in
the city=s home rule charter?
The answer is yes.
Tennessee Code Annotated, ' 2-5-155 provides that:
Any governmental entity having a charter provision for a petition
for recall, referendum or initiative or any person acting pursuant to
such charter provision shall meet the requirements of this
section.....
[There follows a list of requirements for the petition of the above
actions.]
The City of Knoxville has an initiative and referendum provision in its charter. The
question of whether that provision was legal came before the Tennessee Supreme Court in Bean
v. City of Knoxville, 175 S.W.2d 954 (Tenn. 1943). In the court=s own words, AWe are here
presented with the question of the power of the municipality of Knoxville to legislate. Is it
continued exclusively to the City council, or may it legislate by initiative and referendum@?
The answer was yes, held the court, which declared that:
In the instant case we find that the State has expressly prescribed
the mode or manner in which legislative authority of the City of
Knoxville may be exercised, i.e., either by the City Council or by
initiative or referendum. Moreover, there is no inhibition in our
Constitution against the city=s exercising legislative control by
initiative and referendum.... [At 955-56]
Looking at the Knoxville City Charter, the court observed that:
Section 99 [of the Knoxville City Charter] expressly provides for
the initiative and referendum and set out in detail the way and
manner it is to be exercised. In the light of this provision we think
December 3, 2009
Page 2
the language used in Section 4 of the Charter, AThe corporate
power and authority shall be vested in a legislative body to be
known as the Council@; and that AThe legislative power and all
other powers except as otherwise provided in this Act are hereby
delegated to and vest in said City Council@ etc; clearly confers
upon the municipality the right to adopt ordinances by initiative
and referendum. The words Aexcept as otherwise provided@
necessarily refer to the passage of ordinance in such manner.
Moreover, Section 99 of the Charter not only provides for the
passage or adoption of ordinances by referendum, but also for the
repeal of such in the same manner. [At 955]
Also see England v. City of Knoxville, 194 S.W.2d 489 (Tenn. 1946).
In 1943 when Bean was handed down, home rule did not exist in Tennessee. Home rule
is the product of Article XI, Section 9, of the Tennessee Constitution, which derives from the
1953 amendments to the Constitution. But when Knoxville adopted home rule, it adopted its
existing charter, which Article XI, Section 9 permits. Its existing charter contained (and still
contains) the initiative and referendum provision in its charter when it adopted home rule.
Article XI, Section 9, provides that:
Any municipality after adopting home rule may continue to operate
under its existing charter, or amend the same, or adopt and
thereafter amend a new charter to provide for its governmental and
proprietary powers, duties and functions, and for the form,
structure, personnel and organization of its government, provided
that no charter provision, except with respect to compensation of
its municipal personnel shall be effective if inconsistent with any
general act of the General Assembly....
That provision clearly allows any city that adopts home rule to continue to operate under
its existing charter, to amend that charter, or to adopt a new one, that provides for its powers,
form and structure, as long as the charter provision in question is not inconsistent with any
general law.
There is no general law in Tennessee prohibiting municipal charters from containing an
initiative and referendum provision. For that reason, a city whose charter contains an initiative
and referendum provision and that adopts home rule adopts home rule with the initiative and
referendum provision intact, and an existing home rule city whose charter does not contain an
December 3, 2009
Page 3
initiative and referendum provision but that adopts an amendment to its charter containing an
initiative and referendum provision violates no state general law.
However, a city with an initiative and referendum provision in its charter does not have
carte blanche to pass ordinances by that method. Generally, constitutional and legislative
restrictions on ordinances remain in existence. Probably more important, where only the
municipal legislative body has the authority to adopt the ordinance in question, initiative and
referendum does not apply. [See, for example, City of Ocean City, v. Somerville, 958 A.2d 465
(Sup. Ct. N.J. 2008).
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH./
.