The Tennessee Court of Appeals, for the second time, has ruled against those seeking to recall Mayor Ron Littlefield.

In an appeal issued Wednesday, the appeals court only reversed Circuit Court Judge Jeff Hollingsworth in one respect. It said the city charter prevails in the number of names needed on the petition rather than the more strict state standard.

However, the court held that a number of the signatures were on pages that were not dated and thus should not count. Recall workers said they were advised by the election office that the pages did not need to be dated.

The appeals court also ruled that recall is a three-step process under state law, not the two-step process under the city charter.

That would include a successful petition drive, then an election for voters to say whether or not they want to recall the official, then an election to name a successor.   

In its first ruling, the appeals court said Judge Hollingsworth's ruling against the recall group was premature because the Election Commission had not at the time certified the recall. After the election panel did so, Mayor Littlefield filed suit for a second time.

Recall leader Jim Folkner said, "The important thing is that the ruling was that we have a valid city charter. There is no need to put it to the voters in November to make it harder for citizens to recall their elected leaders. That is anti-democratic and it will also foment new and needless litigation."

The costs of the appeal were assessed evenly to the appellants, Mr. Folkner, Charles F. Wysong and Darrell Silvey, and the appellees, Ron Littlefield and the Hamilton County Election Commission.

Appeals Court Judge John McClarty, who is from Chattanooga, wrote the 20-page appeal.

Here is the full opinion:

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 29, 2012 Session

RON LITTLEFIELD,

 

ET AL. v. HAMILTON COUNTY ELECTION

COMMISSION,

 

ET AL.

Appeal from the Circuit Court for Hamilton County

No. 11C1520 Hon. W. Jeffery Hollingsworth, Judge

No. E2012-00489-COA-R3-CV-FILED-SEPTEMBER 12, 2012

 

This is the second time the attempt to recall Chattanooga’s mayor has been before this court.

In the initial appeal, we concluded the trial court acted prematurely and without jurisdiction

when it enjoined the election commission from placing the recall issue on the ballot, because

the election commission, at that point in time, had not formally decided whether or not to

certify the recall petition. After we vacated the void judgment of the trial court, the election

commission certified the recall petition and the mayor again filed suit seeking a declaratory

judgment that the petition process was flawed and to enjoin the placement of the recall issue

on the ballot. The trial court found that the petition seeking the recall of the mayor is invalid

and illegal because it does not comply with all the requirements of Tennessee Code

Annotated section 2-5-151. The leaders of the recall effort appeal. We affirm in part and

reverse in part.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in part and Reversed in part; Case Remanded

 

J

OHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D. SUSANO,

J

R., and D. MICHAEL SWINEY, JJ., joined.

Charles F. Wysong, Jr., James Folkner, and Darrell Silvey, Chattanooga, Tennessee, pro se

appellants.

Harold L. North, Jr., Frederick L. Hitchcock, and Tom Greenholtz, Chattanooga, Tennessee,

for the appellee, Ron Littlefield.

J. Christopher Clem, Chattanooga, Tennessee, for the appellee, Hamilton County Election

Commission.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,

and Janet M. Kleinfelter, Deputy Attorney General, Nashville, Tennessee, for the third party

appellee, State of Tennessee.

Michael A. McMahan and Melinda Foster, Chattanooga, Tennessee, for the intervening

appellee, City of Chattanooga.

OPINION

I. BACKGROUND

 

Ron Littlefield (“the Mayor”) is the duly elected and incumbent Mayor of the City of

Chattanooga (“the City”). The Mayor’s current term extends until April 2013.

During the summer of 2010, certain groups and individuals in the City sought the

recall and removal of the Mayor. The pro se appellants, Charles F. Wysong, Jr., James

Folkner, and Darrell Silvey (“the appellants”) are leaders of the recall movement.

On June 16, 2010, the Hamilton County Election Commission (“Election

Commission”) certified and approved the form of a petition to be circulated and signed by

qualified voters seeking the recall and removal of the Mayor. The

1 Election Commission

announced that it would schedule the recall election for the November 2010 state general

election if a sufficient number of signatures were collected. The Election Commission

subsequently began receiving papers bearing signatures purporting to endorse the recall

petition. The voting qualifications of those persons who signed the recall petition were

reviewed and, for those signatures found to be valid, a check mark was placed next to that

name by the staff.

On August 5, 2010, at a meeting of the Election Commission, it was determined that

the number of signatures of registered voters of the City required to support the recall petition

would be computed according to the provisions of Section 3.18 of the Charter of the City of

Chattanooga (“City Charter”). Under the provisions of the City Charter, the Election

Commission determined that 8,957 valid petition signatures would be required for

certification of the recall petition.

1

 

There were several versions of the petition. The following language was included: “If this petition

is determined to have the sufficient number of valid signatures then the Mayor of Chattanooga is

automatically recalled and the board of election commissioners shall at once order and fix a date for holding

said successor election. . . .”

-2-

On August 31, 2010, the Mayor filed a verified complaint for declaratory judgment

and injunctive relief against the Election Commission regarding whether it could certify

various signatures purporting to support the recall of the Mayor as being valid and lawful.

The Mayor alleged the signatures and the petition upon which they appeared were void

according to the requirements for validity under Tennessee Code Annotated section 2-5-151.

The Mayor also asserted that even if the Election Commission certified the signatures as

being valid, the recall question could not be placed on the ballot for voting until the next

general county or municipal election, which was not scheduled to occur until August 2012

or March 2013, respectfully.

On September 7, 2010, a hearing was conducted. Based upon the testimony presented

and the facts stipulated for consideration, the circuit court found that Tennessee Code

Annotated section 2-5-151 controlled the recall process. The trial court also held that the

petition seeking the recall of the Mayor did not have the sufficient minimum number of

signatures required by Tennessee Code Annotated section 2-5-151, and that, alternatively,

an insufficient number of dated signatures were presented to comply even with the lower

requirements of the City Charter.

Based on these findings, the trial court concluded that (1) the Election Commission

“is not authorized under law to certify the petition[] for [recall]”; and (2) the Election

Commission “is not authorized by law to add the [recall] of Ron Littlefield as Mayor of the

City of Chattanooga to the November 2, 2010 ballot.” A written order containing the same

findings was entered on September 8, 2010.

On October 7, 2010, Folkner, who had been allowed to intervene, filed a motion for

relief from the final judgment alleging two grounds: (1) that the circuit court lacked subject

matter jurisdiction; and (2) that the Mayor lacked standing to challenge the certification of

the petition seeking his recall from office. The court denied Folkner’s motion, holding that

state law allows a court to enjoin the holding of an election when conducting the election

would be without apparent authority of law or when special circumstances exist. The trial

court held that allowing the recall question to be placed on the November 2010 ballot “would

be the sanctioning of an election which did not have the apparent authority of law.” Folkner

thereafter filed a timely appeal.

In his appeal, Folkner challenged only whether the circuit court had jurisdiction to

enjoin an election. On November 3, 2011, we issued an opinion vacating the injunction

ordered by the circuit court, concluding that the trial court proceedings were premature

because the Election Commission had not formally acted to certify the recall petition.

See

Littlefield v. Hamilton Cnty. Election Comm’n

 

 

 

, No. E2010-02410-COA-R3-CV, 2011 WL

5221744 (Tenn. Ct. App. Nov. 3, 2011).

-3-

Thereafter, the Election Commission met on November 17, 2011, to certify the recall

petition under Section 3.18 of the City Charter, which provision provides that a recall petition

be signed by “qualified voters equal in number to at least 50 per centum of the entire vote for

all candidates for the office of Mayor cast at the last preceding general municipal election.”

Calculated under the provisions of the City Charter, 8,957 valid petition signatures would be

required for certification of the recall petition in this case. The Election Commission

scheduled a contested election on August 2, 2012 to fill the office of Mayor. The Election

Commission disregarded Tennessee Code Annotated section 2-5-151(h), which, requires,

upon appropriate certification of a proper petition seeking the recall of a duly-elected official,

the placement first of the question on the ballot as to whether the elected official should be

recalled before holding a contested election to fill the office.

On December 16, 2011, the Mayor filed a second action against the Election

Commission, seeking, among other things, a declaration that the Election Commission acted

illegally in certifying the recall petition and in setting an election. The Mayor also sought

an injunction prohibiting the Election Commission from placing on the August 2, 2012

election ballot any question or issue regarding whether the Mayor shall be recalled or

whether a new mayor shall be elected.

2

The Mayor asserted that Tennessee Code Annotated section 2-5-151(d), and not the

City Charter, constituted the governing law establishing the minimum number of valid

signatures needed to support a recall petition. The state provision requires that the

“[p]etitions shall be signed by at least fifteen percent (15%) of those registered to vote in the

municipality or county.” Tenn. Code Ann. § 2-5-151(d). Accordingly, if state law governed

the minimum number of qualified signatures needed to support the petition, then 14,854 valid

petition signatures would be required for certification of the recall petition regarding the

Mayor.

The Mayor also challenged the validity of the Election Commission’s acceptance of

undated signatures as failing to comply with the requirements of Tennessee Code Annotated

section 2-5-151(e)(4) that all signatures affixed to a recall petition be dated. In fact, of the

9,718 signatures accepted by the Election Commission as being signatures of registered City

voters, some 5,439 signatures were undated. Consequently, only 4,279 signatures from

registered City voters complied with the state law requirement that the signatures be dated.

The Mayor argued that even if a recall petition is

 

2 properly certified, a referendum election is first

required to consider the question of whether the elected official should be recalled before holding an election

to fill the office.

-4-

Further, the Mayor argued the process by which the recall petition was circulated was

improper pursuant to state law. For example, the form of the petition to which many of the

signatures were attached did not set forth any question for a vote of the people, and, more

specifically, failed to set forth the full text of the question of whether the Mayor shall be

recalled, as required by Tennessee Code Annotated section 2-5-151(b)(2), (e)(1), (f)(2), and

(i); and did not contain an accurate description of the recall process as set forth in Section 2-

5-151, but instead represented that the Mayor is “automatically recalled” once the required

number of signatures is obtained.

Additionally, several versions of the recall petition were circulated by those seeking

the Mayor’s recall, with each differing from the actual petition originally approved for

circulation by the Election Commission. All of the versions of the petition failed to set forth

any question, and the unapproved versions omitted spaces where the date each person signed

could be identified. Nevertheless, the Election Commission approved signatures contained

on these non-approved petitions.

On December 30, 2011, the Election Commission filed an answer in which it claimed

that the minimum signature requirements of Tennessee Code Annotated section 2-5-151 were

unconstitutional and violated the Class Legislation Clause of the Tennessee Constitution,

article XI, section 8. Following a hearing on January 23, 2012, the circuit

3 court denied all

pending motions. In denying a motion to dismiss for failure to join other parties, the trial

court found that Folkner, one of the appellants, was not a necessary or indispensable party

to this action at that time.

4

On February 9, 2012, the day before the final hearing, the appellants filed a motion

to intervene in the action, identifying a single issue as the basis for the intervention: that the

minimum signature requirement in Tennessee Code Annotated section 2-5-151 was

unconstitutional because the requirement did not apply in all of Tennessee’s 95 counties.

3

 

The provision provides in relevant part:

The Legislature shall have no power to suspend any general law for the benefit of any

particular individual, nor to pass any law for the benefit of individuals, inconsistent with

granting to any individual or individuals, rights, privileges, immunitie[s] or exemptions

other than such as may be, by the same law extended to any member of the community, who

may be able to bring himself within the provisions of such law.

4

 

During the hearing, the court asked the parties whether the City should be made a party. The City

was later permitted to intervene by order entered on January 30, 2012. The Tennessee Attorney General was

brought in as a third-party defendant when the Election Commission contested the constitutionality of

Tennessee Code Annotated section 2-5-151.

-5-

The circuit court granted the motion to intervene, limited solely to the issue of the

constitutionality of the state statutory requirement.

The following day, the circuit court held a final hearing. Just before the start of the

hearing, the appellants filed a motion to recuse Judge Hollingsworth from hearing the case.

As grounds for the motion, the appellants alleged that campaign contributions made six years

earlier by members of the law firm representing the Mayor (Judge Hollingsworth’s former

employing law firm) created a question as to his impartiality in the matter. In denying the

motion, Judge Hollingsworth held as follows:

* Recusal is not practical or necessary if recusal is based merely upon a prior

affiliation with a law firm, and that he still considers recusal on a case-by-case

basis involving particular lawyers;

* He did not practice with two of the Mayor’s lawyers, North and Greenholtz;

he was associated with the third lawyer, Hitchcock, for only about a year, did

not perform the same type of work as Hitchcock, and seldom crossed paths

professionally with Hitchcock.

* Neither North nor Greenholtz contributed to his 2006 judicial campaign; and

* The campaign contributions occurred six years previous.

Following closing arguments, the trial court made the following findings and

conclusions, which were incorporated into an order filed on February 14, 2012:

* The constitutional issue raised by the Election Commission and the

appellants could be easily resolved by eliding subsection (l) from Tennessee

Code Annotated section 2-5-151. As a result, it is not necessary to decide the

constitutional issue;

* Solely on the number of valid signatures obtained, the recall petition does

not meet the requirements of Tennessee Code Annotated section 2-5-151;

* The 2002 restatement of the City Charter was not an enactment of a

“contrary charter provision” as contemplated by Tennessee Code Annotated

section 2-5-151(j); thus, the City Charter did not govern the requirement for

a minimum number of signatures;

-6-

* Even if the City Charter governed the number of signatures required, state

law requires that each signature be dated.

See Tennessee Code Annotated

section 2-5-151(e)(4). Approximately 5,439 signatures did not have a date

beside the signature, and as such, the recall petition did not have a sufficient

minimum number of dated signatures to satisfy the requirements of the City

Charter; and

* The recall petition itself violated Tennessee Code Annotated section 2-5-

151(f)(2) in that it does not contain the question to be presented to voters. The

trial court noted that “[t]he clear intent of T.C.A. § 2-5-151 is to impose what

has been referred to in this litigation as a ‘“three step process.”’ Required

steps are: 1. certification of properly executed petitions containing the

required number of valid signatures calling for the recall of Mayor Littlefield;

2. a city wide election for the voters to determine whether Mayor Littlefield

should be recalled; and 3. if the voters recall the Mayor, an election could be

held to select his successor. The process approved by the Election

Commission skips the second step of this required process which is the actual

recall election. As a result, the process mandated by the Election Commission

is illegal and invalid.

Based on these findings, the trial court ordered that the Election Commission “remove the

election of a successor for Mayor Littlefield from the ballot of the election scheduled on

August 2, 2012.” The appellants timely filed their notice of appeal.

II. ISSUES

 

The appellants raised the following issues, which we restate as follows:

1. Whether the City Charter or the state statute controls relative to the

requisite number of signatures needed for a valid recall of the Mayor.

2. Whether Judge Hollingsworth should have recused himself.

3. Whether the appellants are entitled to rely on the advice given by the

Election Commission relative to the need for signature dates on the recall

petitions at issue.

4. Whether the Mayor has standing to petition for the injunctive relief

requested.

-7-

The Election Commission presented the following restated issues:

1. Whether the trial court properly held that the referendum vote on August

1, 2002, which restated the entire City Charter, did not effectively “enact”

Section 3.18 of the Charter.

2. Whether the trial court correctly determined that application of Tennessee

Code Annotated section 2-5-151 to city council races was not properly before

the trial court.

5

3. Did the trial court err in failing to hold that Tennessee Code Annotated

section 2-5-151 cannot survive strict scrutiny or a “rational basis” test for

unequal application of recall and referendum votes?

4. Whether the trial court properly applied the doctrine of elision to avoid

ruling on the constitutionality of Tennessee Code Annotated section 2-5-151?

5. Tennessee Code Annotated section 2-5-151 requires the “question” be

voted on if the recall is certified. In what form should the “question” be put

on the ballot?

6. May the Election Commission accept a recall petition under a substantial

compliance standard?

The Election Commission also adopted and incorporated the issues raised by the appellants.

III. STANDARD OF REVIEW

 

Under 13(d) of the Tennessee Rules of Appellate Procedure, this court reviews the

trial court’s findings of fact “de novo upon the record of the trial court, accompanied by a

presumption of the correctness of the finding, unless the preponderance of the evidence is

otherwise.” With respect to the trial court’s conclusions of law, and application of law to

facts, these conclusions are generally reviewed de novo without a presumption of

correctness.

See Jordan v. Knox Cnty., 213 S.W.3d 751, 763 (Tenn. 2007); S. Constructors,

Inc. v. Loudon Cnty. Bd. of Educ.

 

 

 

, 58 S.W.3d 706, 710 (Tenn. 2001). Issues of

“constitutional interpretation are questions of law, which will be reviewed de novo without

The Election Commission asserted that the state statute

 

5 allows voters from one city council district

to recall elected officials from other districts.

-8-

any presumption of correctness given to the legal conclusions of the courts below.”

See

Colonial Pipeline Co. v. Morgan

 

 

 

, 263 S.W.3d 827, 836 (Tenn. 2008).

With regard to the recusal issue, the trial court’s decision must be affirmed unless it

has abused its discretion.

See Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn.

2001). A finding of an abuse of discretion is appropriate “only when the court that made the

decision applied incorrect legal standards, reached an illogical conclusion, based its decision

on a clearly erroneous assessment of the evidence, or employs reasoning that causes an

injustice to the complaining party.

See Konvalinka v. Chattanooga-Hamilton Cnty. Hosp.

Auth

 

 

 

., 249 S.W.3d 346, 358 (Tenn. 2008).

The rules governing statutory construction are as follows:

Our duty in construing statutes is to ascertain and give effect to the intention

and purpose of the legislature. “Legislative intent is to be ascertained

whenever possible from the natural and ordinary meaning of the language

used, without forced or subtle construction that would limit or extend the

meaning of the language.”

When the statutory language is clear and unambiguous, we must apply its plain

meaning in its normal and accepted use, without a forced interpretation that

would limit or expand the statute’s application. Where an ambiguity exists, we

must look to the entire statutory scheme and elsewhere to ascertain the

legislative intent and purpose. The statute must be construed in its entirety,

and it should be assumed that the legislature used each word purposely and

that those words convey some intent and have a meaning and a purpose. The

background, purpose, and general circumstances under which words are used

in a statute must be considered, and it is improper to take a word or a few

words from its context and, with them isolated, attempt to determine their

meaning.

Jordan

 

 

 

, 213 S.W.3d at 763 (citations omitted). The Court continued:

Construction should not impair, frustrate, or defeat the object of a statute. It

is the duty of the Court to place a construction on a statute that will not be

prejudicial to the public interest. These rules of construction apply to local

ordinances, a county charter and any amendments, or any other legislation by

a local government.

Id

 

 

 

., at 763 (citations omitted).

-9-

IV. DISCUSSION

A.

 

The controlling state statute at issue, Tennessee Code Annotated section 2-5-151,

provides as follows:

(a) 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.

(b) Before a petition may be circulated, at least one (1) registered voter of the

city or county shall file with the county election commission:

(1) The proper form of the petition; and

(2) The text of the question posed in the petition.

(c) The county election commission shall certify whether the petition is in

proper form within thirty (30) days after the filing of the documentation

required by subsection (b). The individual or individuals filing the petition

shall have fifteen (15) days to cure any defects in the documentation required

by subsection (b) by filing revised documentation in proper form with the

county election commission. The county election commission shall determine

within five (5) days whether or not the revised documentation shall be certified

for final approval.

(d) Petitions shall be signed by at least fifteen (15%) of those registered to

vote in the municipality or county. The disqualification of one (1) or more

signatures shall not render a petition invalid, but shall disqualify such

signatures from being counted towards the statutory minimum number of

signatures required in this section.

(e) Upon filing, each completed petition shall contain the following:

(1) The full text of the question attached to each petition;

(2) The genuine signature and address of registered voters only,

pursuant to the requirements of § 2-1-107;

(3) The printed name of each signatory; and

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(4) The date of the signature.

(f)(1) Completed petitions shall be filed with the election commission within

seventy-five (75) days after final certification by the county election

commission as required by subsection (c).

(2) In addition, a petition for recall, referendum or initiative shall be filed at

least sixty (60) days before a general municipal or county election may be held

on the question contained in such petition. The question contained in a

petition filed less than sixty (60) days before an upcoming general municipal

or county election will be placed on the ballot of the following general

municipal or county election.

* * *

(h) The county election commission shall certify whether or not the completed

petition meets all applicable requirements within thirty (30) days of filing of

the completed petition.

(i) Upon certification by the county election commission pursuant to

subsection (h), the election commission shall publish the question contained

in the petition pursuant to § 2-12-111.

(j) This section shall control notwithstanding any statutory provision or

charter provision of a municipality or county to the contrary; provided, that any

contrary charter provision of a municipality or county which is enacted after

July 1, 1997, shall control with respect only to the requirements set forth in

subsection (d) relating to the statutory minimum number of signatures required

in a petition, and to the provisions of (f)(1) relating to the seventy-five-day

deadline for filing of a petition after final certification by the county election

commission.

(k) This section shall control any petition with signatures filed with the county

election commission on or after June 25, 1997.

(l) Notwithstanding any other provision of law to the contrary, the provisions

of this section shall not apply to any county having a metropolitan form of

government and a population greater than one hundred thousand (100,000),

according to the 2000 federal census or any subsequent federal census.

-11-

The appellants and the Election Commission argue that Tennessee Code Annotated

section 2-5-151 is unconstitutional under the Class Legislation Clause, Tennessee

Constitution, article XI, section 8, because the law exempts metropolitan governments from

its operation. The Election Commission asserts that the statute decreases the ability of those

state citizens outside of Davidson County to recall an elected official. It is further contended

that Section 2-5-151 is the only provision in Tennessee law that allows the citizens to force

a referendum vote by the voters, and the statute permits voters outside a political district to

recall officials in other districts.

In particular, the Election Commission argues that Section 2-5-151 is unconstitutional

because it permits officials to be recalled by voters outside a political district. The Election

Commission asserts that, in contrast, the City Charter’s recall provision protects each city

councilman from being recalled by voters from the entire city. It is argued that allowing

residents across the City to recall a councilman in one district violates

Brown v. Board of

Commissioners

 

 

 

, 722 F.Supp. 380 (E.D. Tenn. 1989).

In response to this argument by the Election Commission, the trial court observed as

follows:

THE COURT: . . . It doesn’t make a distinction there that I can see, but what’s

that got to do with this case because that’s not what we’re dealing with here?

Here we’re dealing with a citywide election for an officer, an official who

holds a . . . citywide office. And so even if that were true, what’s that got to

do with what we’re dealing with here today?

* * *

THE COURT: It’s not dealing with what we’re dealing with here and I’m

restricted to a decision in this case dealing with these facts.

The circuit court held that the constitutional issue should not be reached because

subsection (l) could be elided from the remainder of Tennessee Code Annotated section 2-5-

151. It was determined by the court that eliding this subsection to remove the contested

provision would not, and could not, affect the remaining provisions of Tennessee Code

Annotated section 2-5-151 as applied to this case involving the City’s Mayor, and as such,

would not affect the requirements for a minimum number of dated signatures supporting a

recall petition. Thus, the trial court properly recognized that because the constitutional

argument by the appellants and the Election Commission would not result in any relief being

granted to them, even if successful, resolution of these issues is not “absolutely necessary for

-12-

determination of the case and the rights of the parties.”

See, e.g., State v. Taylor, 70 S.W.3d

717, 720 (Tenn. 2002).

Our Supreme Court has recognized that the doctrine of elision, while not automatic,

may be appropriately applied in cases where “a conclusion can be reached that the legislature

would have enacted the act in question with the unconstitutional portion omitted.

See In re

Swanson

 

 

 

, 2 S.W.3d 180, 188-89 (Tenn. 1999) (“We recognize that the legislature’s

endorsement of elision does not automatically make it applicable to every situation; however,

when a conclusion can be reached that the legislature would have enacted the act in question

with the unconstitutional portion omitted, then elision of the unconstitutional portion is

appropriate.”).

It is clear in this case that the legislature would have enacted the remaining sections

of Tennessee Code Annotated section 2-5-151 with subsection (l) omitted, as this is what

occurred. Tennessee Code Annotated section 2-5-151 did not contain an exemption for

counties with metropolitan governments with a certain population in its original enactment.

See

 

 

 

1997 Tenn. Pub. Acts, ch. 558. Thus, in 1997, the statute applied to all 95 counties. The

exemption for metropolitan governments was added eight years later by 2005 Tennessee

Public Acts, chapter 428:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF

TENNESSEE:

SECTION 1. Tennessee Code Annotated, Section 2-5-151, is amended by

adding the following as a new subsection thereto:

(l) Notwithstanding any other provision of law to the contrary, the provisions

of this section shall not apply to any county having a metropolitan form of

government and a population greater than one hundred thousand (100,000)

according to the 2000 federal census or any subsequent federal census.

SECTION 2. This act shall take effect upon becoming a law, the public

welfare requiring it.

See

 

 

 

2005 Tenn. Pub. Acts, ch. 428. The original enactment of Tennessee Code Annotated

section 2-5-151 also contained its own severability clause.

See 1997 Tenn. Pub. Acts, ch.

558 (“If any provision of this act or the application thereof to any person or circumstance is

held invalid, such invalidity shall not affect other provisions or applications of the act which

-13-

can be given effect without the invalid provision or application, and to that end the provisions

of this act are declared to be severable.”).

6

Consequently, even if an issue exists with the constitutionality of Tennessee Code

Annotated section 2-5-151 due to the existence of the later-enacted subsection (l), the remedy

would be to elide the offending provision, subsection (l).

As to the issue raised regarding recall matters involving city council members, we do

not find such relevant to this situation involving the Mayor. Accordingly, we find such

separate recall petitions are not at issue in this matter.

B.

 

The appellants, joined by the Election Commission, assert that Judge Hollingsworth

should have recused himself from this lawsuit. During oral argument, however, it was

stipulated that this issue has been withdrawn. Therefore, we will not consider this issue.

6

 

Tennessee Code Annotated section 1-3-110 contains a general severability clause for the Tennessee

Code, and this provision specifically provides that the unconstitutionality of one provision of a statute should

not affect other provisions:

It is hereby declared that the sections, clauses, sentences and parts of the Tennessee Code

are severable, are not matters of mutual essential inducement, and any of them shall be

exscinded if the code would otherwise be unconstitutional or ineffective. If any one (1) or

more sections, clauses, sentences or parts shall for any reason be questioned in any court,

and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or

invalidate the remaining provisions thereof, but shall be confined in its operation to the

specific provision or provisions so held unconstitutional or invalid, and the inapplicability

or invalidity of any section, clause, sentence or part in any one (1) or more instances shall

not be taken to affect or prejudice in any way its applicability or validity in any other

instance.

See

 

 

 

 

Tenn. Code Ann. § 1-3-110.

-14-

C.

 

The appellants and the Election Commission assert that the City Charter was

effectively “enacted after July 1, 1997” per City Ordinance No. 11272, which provided it was

to “[a]mend and restate the Charter of the City of Chattanooga in its entirety. . . .”

In 1990, the City Charter was substantively modified by an agreed order entered by

the United States District Court in a Voting Rights Act case,

Brown v. Board of

Commissioners

 

 

 

, 722 F.Supp 380 (E.D. Tenn. 1989). Among other changes, the agreed order

replaced the former Commission form of government, in which Commissioners were elected

City-wide, with a Mayor-Council form of government, in which members of the Council

were elected by district. Although this agreed order included provisions necessary to

implement a new form of government, it did not comprehensively rewrite the then-existing

City Charter.

Subsequently, by Ordinance No. 9435, the City Council proposed a change to the

recall provisions of the City Charter to conform those provisions to the new Mayor-Council

form of government. The Ordinance, ratified by the voters in November 1990, was the last

modification to the material provisions of Section 3.18 of the City Charter:

In the case of an official elected at large, a petition signed by qualified voters

equal in number to at least fifty per centum (50%) of the entire vote for all

candidates for the office of mayor cast at the last preceding general municipal

election, demanding an election of a successor of the person sought to be

removed shall be filed with the commissioners of election of Hamilton County

. . . .

In 1997, the legislature adopted Public Chapter 558, now codified at Tennessee Code

Annotated section 2-5-151, to provide for uniform requirements for any petition for recall,

referendum, or initiative. Section 2-5-151(a) provides that “[a]ny 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.” The statute

provides in section 2-5-151(j) that “[t]his section shall control notwithstanding any statutory

provision or charter provision of a municipality or county to the contrary.”

Under Tennessee Code Annotated section 2-5-151(d), recall petitions must be signed

by “at least fifteen percent (15%) of those registered to vote in the municipality or county.”

However, a municipality may adopt a different minimum number of signatures, if, and only

if, a “contrary charter provision of a municipality or county . . . is enacted after July 1, 1997.”

See

 

 

 

Tenn. Code Ann. § 2-5-151(j). Accordingly, unless a city enacts a charter provision,

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after July 1, 1997, that provides for a different minimum signature requirement needed to

support a recall petition, Tennessee Code Annotated section 2-5-151 governs and establishes

the basic requirements for petitions in all cases.

The legislative history of Tennessee Code Annotated section 2-5-151 reveals the

legislature’s intent to require municipalities to “amend their charter” after July 1, 1997, if

they desired to adopt requirements different than those imposed by Section 2-5-151. As

noted by the Attorney General, the only relevant reference to the statutory minimum

signature requirements was the following explanation offered by Senator Rochelle, the

Senate Sponsor:

Now what these two amendments relate to is the issue of where you have

differing provisions out there. It is how you handle when a municipal charter

provides for recall referendum or initiative. That is the only time it comes into

play is municipal charters. This sets up a uniform way of doing it in

amendment one. Amendment one to one was requested by Senator Fowler and

it is a late filed amendment. It says that if a municipality wants to do it a

different way, they can amend their charter after July 1, 1997 and that would

control.

So we start out uniform, if any city is dissatisfied with it, they’d

be able to change it.

See

 

 

 

Tenn. Op. Atty. Gen. No. 97-149 (Oct. 23, 1997) (emphasis added). Thus, to override

the uniform state standard for minimum signatures on a recall petition, municipalities must

“amend their charter” after July 1, 1997 to adopt a different minimum.

In 2002, changes were made to the City Charter primarily to remove obsolete

references to the old Commission form of government. The City Council, in Ordinance No.

11272, implemented the changes by amending and restating the entire City Charter, rather

than reciting each individual amendment. After passing City Council, the Ordinance was

incorporated into a Notice of Election. Pursuant to that Notice, the following question was

submitted to the voters of the City at the general county election held on August 1, 2002:

Shall Ordinance No. 11272 to amend and restate the Charter of the City of

Chattanooga, Tennessee be approved, which amendment, among other

changes: (1) conforms the pre-existing city charter with the court order

creating the mayor/council form of government; (2) repeals former charter

provisions conflicting with the court order; (3) substitutes the word “mayor”

for “board of commissioners” or “commissioner” wherever the same refers to

the administrative powers and functions of city government; (4) substitutes the

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words “city council” wherever the same refers to the board of commissioners

or commission in its legislative or quasi-judicial capacities.

The voters approved Ordinance No. 11272 by a majority vote.

The circuit court held that the 2002 City Charter restatement did not amount to an

“enactment” of a “contrary charter provision” under Tennessee Code Annotated section 2-5-

151(j), finding that the Ordinance only removed obsolete references to a prior form of

government and otherwise continued the prior recall procedures “in full force and effect.”

We disagree. We find that the 2002 City Charter restatement was sufficient to “enact”

a “contrary charter provision” pursuant to Tennessee Code Annotated section 2-5-151(j)

(allowing a contrary charter provision of a municipality with respect

only to the statutory

minimum number of signatures required in a petition (subsection (d))) (emphasis added).

Thus, we conclude the minimum signature requirement contained in Section 3.18 of the City

Charter governs the minimum number of signatures required for a recall petition. The parties

have stipulated that the amount of valid petition signatures under the provisions of the City

Charter would be 8,957.

Tennessee Code Annotated section 2-5-151 otherwise controls. As noted in

subsection (a), “[a]ny governmental entity having a charter provision for a petition for recall

. . .

shall meet the requirements of this section.” (Emphasis added). Accordingly, Tennessee

Code Annotated section 2-5-151(e)(4) requires that all signatures affixed to a recall petition

be dated. Therefore, all 8,957 signatures must bear dates.

D.

 

The appellants argue they “relied” upon “bad advice” from the Election Commission

regarding the number of dated signatures needed to properly and lawfully certify a recall

petition. They ask that the recall process be allowed to proceed on the basis of estoppel. As

to the appellants, this issue is well outside of the scope of the limited intervention they were

awarded. Since this issue was adopted by the Election Commission, it is properly before us.

We have concluded, however, that the issue must be resolved against the Commission. We

reject the proposition that a governmental entity can be forced into taking illegal action based

upon the principles of estoppel.

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E.

 

The appellants and the Election Commission argue that the Mayor does not have

standing to challenge an attempt to seek his recall. As the Supreme Court has recognized,

[t]o establish standing, a plaintiff must show three elements: (1) a distinct and

palpable injury, as opposed to a conjectural or hypothetical injury; (2) a causal

connection between the claimed injury and the challenged conduct; and (3) the

alleged injury is capable of being redressed by a favorable decision of the

courts.

See Lynch v. City of Jellico

 

 

 

, 205 S.W.3d 384, 395 (Tenn. 2006) (citations omitted).

As the elected official at whom the recall efforts were directed, the Mayor certainly

had an interest that was distinct from the voters as a whole. Not only would he be subject

to an election in violation of applicable state law, but he could be ousted from his position

as Mayor in the process. Therefore, more so than any other party, the Mayor has shown that

he would suffer a distinct and palpable injury that is different from the public at large.

See

City of Chattanooga v. Davis

 

 

 

, 54 S.W.3d 248, 280 (Tenn. 2001). Also, the recall procedures

adopted by the Election Commission would have affected those interests specifically.

Finally, these interests could have been, and in fact were, redressed by a favorable decision

of this court. Thus, all three elements were met in this case to show that the Mayor had

standing to bring these issues before the court. Furthermore, no authority has been cited

suggesting that a duly elected official lacks standing to challenge the legality of procedures

used to institute a recall election. We find this issue has no merit.

F.

 

The Election Commission presents the issue regarding the “three step” versus “two

step” recall process, arguing that the two step process was approved by the Tennessee

Supreme Court in

State ex rel. Brown v. Howell Election Commissioners, 183 S.W. 517

(Tenn. 1916). It is asserted the two step process saves costs by requiring only one election.

The circuit court held that Tennessee Code Annotated section 2-5-151 properly set

forth a three step process. The court concluded that in the instant case, the certification of

the recall petition was illegal, in part, because the recall petition failed to contain a question

to be proposed to voters, as required by subsections (b)(2), (e)(1), (f)(2) and (i). The Election

Commission set a contested election without first presenting the question of the recall to the

voters, and the recall petition itself puts forth no question for its signatories to consider.

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Tennessee Code Annotated section 2-5-151 establishes a three step process for recall

elections. As noted by the trial court, first, “[w]e have the certification of the petitions” with

a question as to whether the incumbent office holder should be removed. Second, “[w]e have

a referendum” whether to remove the incumbent office holder. Third, “if that official is

recalled by the voters, then we have an election for the replacement of that position.”

The

Brown case does not support the Election Commission’s argument that the

Supreme Court has “validated” a process for recall elections where the “question” of recall

and the selection of a successor are combined into one proceeding. The argument disregards

the fact that the legislature passed a law more than 80 years

after the Brown decision to

establish a uniform procedure by which recall elections are conducted. (Emphasis added).

There is no merit to this issue.

G.

 

The Election Commission asserts that the Supreme Court has held that “only a

substantial compliance, rather than a strictly literal compliance, with the election laws is

required.”

Lanier v. Revell, 605 S.W.2d 821, 822 (Tenn. 1980). Accordingly, the Election

Commission argues that the court should not find the recall invalid for noncompliance with

the “requirement of the date for signatures obtained.”

Despite outdated case law to the contrary, the legislature has not allowed for

“substantial compliance” regarding the matter before us. Subsection (h) of Tennessee Code

Annotated section 2-5-151 provides that “[t]he county election commission

shall certify

whether or not the completed petition meets

all applicable requirements within thirty days

of filing of the completed petition.” (Emphasis added). The legislature did not give authority

to the Election Commission to certify partial compliance or to pick and choose which of the

applicable requirements were sufficient for compliance. This issue is meritless.

V. CONCLUSION

 

We affirm the findings and conclusions of the trial court that: (1) it was not necessary

to decide the issue of the constitutionality of Tennessee Code Annotated section 2-5-151; (2)

the “three step” recall process is required pursuant to Tennessee Code Annotated section 2-5-

151; (3) Tennessee Code Annotated section 2-5-151(e)(4) requires dated signatures and the

recall petition did not have a sufficient minimum number of dated signatures to satisfy the

requirements of the city charter; (4) the Mayor has standing; and (5) the illegal recall process

cannot be allowed to proceed on the bases of estoppel and/or substantial compliance. We

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reverse the trial court as to its finding (1) that the referendum vote of August 1, 2002, did not

effectively “enact” Section 3.18 of the City Charter, and (2) that Tennessee Code Annotated

section 2-5-151(d) governs the requisite number of signatures required to support a recall

petition. We find that the City Charter prevails as to the necessary number of signatures to

support the recall effort. This cause is remanded, with the costs of this appeal assessed

evenly to the appellants, Charles F. Wysong, Jr., James Folkner, and Darrell Silvey, and the

appellees, Ron Littlefield and the Hamilton County Election Commission.

___________________________________

JOHN W. McCLARTY, JUDGE

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