VOL. 47 | NO. 46 | Friday, November 10, 2023
Heavy-handed legislators losing Nashville fights
Spirits in the Metro legal department must be bouncing off the ceiling these days given the recent string of court victories against state meddling in local affairs. The current score: Nashville 3, General Assembly 0.
Can I get an amen?
The most recent case involved the state’s takeover of the Metro Nashville Airport Authority. A panel of judges from across the state unanimously swatted down the move as a violation of the Tennessee Constitution.
Measures passed by legislators to cut the size of the Metro Council in half and to reduce the Council votes necessary to approve fairground upgrades met identical fates.
“Judges are agreeing with our theories and our interpretation of the Constitution and case law,” Wally Dietz, Metro legal director, told The Nashville Scene. “If we continue to obtain victories in trial court, I’m hopeful the legislature will figure out they cannot continue to do this.”
Still pending is a Metro lawsuit challenging the legislature’s vote to take control of the Metro Sports Authority. I don’t know if Vegas is accepting wagers on the outcome of that suit, but I know which way I would bet.
The primary legal issue raised by the city is that each move violates Article XI, Section 9 of the state constitution. That section prohibits legislation applying to only one county or municipality “unless the act by its terms either requires the approval of 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.”
The state attorney general’s office, in defending the legislative acts challenged by Metro, has resorted to some, let’s call them “creative” arguments. For instance, though the laws apply only to Nashville, they theoretically could apply to other places, somehow, someday.
Judges haven’t bought it.
As annoying – not to mention time-consuming and expensive to fight – as the sports and airport authority takeovers and the fairgrounds tampering are, the greatest threat is obviously the frontal assault on the Metro Council size.
As noted here before, a ballot initiative seeking to reduce the Council to 27 members went before voters in 2015. It failed by 25 percentage points. Vox populi, pretty loud.
When the current state measure came before the Tennessee House this spring, Rep. John Ray Clemmons of Nashville called it “the ultimate insult to any voter in a county who’s having its rights denied.”
“This is a fundamental defect of a constitutional nature,” he said of the bill, and he tried to amend it to require a vote by Nashville residents before it could take effect.
“This bill, as currently written, if we don’t adopt the amendment will not stand up in court,” he said. The amendment failed 70-21. The bill passed the House 72-25, and it passed the Senate 23-7, all reflecting the Red-Blue divides of the chambers.
And Clemmons’s prediction proved prophetic.
One of the flaws with the argument by Clemmons – a Democrat, obviously – is that an “ultimate insult” is precisely what Red legislators always want to deliver to Blue Nashville. “Hell, yeah” may not have been the audible response, but it was clearly implied.
This assessment is preliminary. The state could yet prevail in any or all of its efforts to appeal the rulings in Nashville’s favor.
I worry that even my mentioning things, at this stage, could somehow jinx the outcome. I’m superstitious that way. I believe I’ve cost the New York Yankees some baseball games just by randomly tuning in to them on TV.
I’d like to think that Dietz, the Metro legal director, is right in his belief that, should Nashville continue to win, legislators will indeed “figure out they cannot continue to do this.” But I’m not confident of that.
Returning to a baseball reference, I quote the sage and philosopher Lawrence Peter Berra, better known as Yogi: “It ain’t over till it’s over.”
And when it comes to the Assembly’s hostility toward Nashville, it’s never over.
Joe Rogers is a former writer for The Tennessean and editor for The New York Times. He is retired and living in Nashville.