City of Oakland, Tennessee v. Lenita Mccraw

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 18, 2003 Session

CITY OF OAKLAND, TENNESSEE v. LENITA McCRAW, ET AL.

A Direct Appeal from the Chancery Court for Fayette County

No. 12253 The Honorable William H. Inman, Special Judge

No. W2002-01552-COA-R3-CV - Filed March 17, 2003

This is a municipal incorporation case which tests the constitutionality of Chapter 129, Public

Acts of 2001, codified as T.C.A. § 6-1-210(b) and also presents the issue of whether the action

instituted by an adjoining incorporated municipality to invalidate the incorporation of the

neighboring area is an election contest governed by the limitation period established by T.C.A. § 2-

17-105. The trial court held that Chapter 129, Public Acts of 2001, is unconstitutional and further

held that the incorporated municipality’s action to invalidate the unincorporated area’s referendum

election and to revoke its charter is not an election contest governed by T.C.A. § 2-17-105. The

territory seeking incorporation appeals, and the county election commission that certified the election

appeals by the Tennessee Attorney General, defending the constitutionality of the subject Act. We

affirm.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and DAVID R. FARMER , J., joined.

Brian L. Kuhn and Thomas J. Walsh, Jr., For Appellants, Town of Hickory Withe, Tennessee and

Mayor David Shelton

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Ann Louise

Vix, Senior Counsel, Nashville, For Appellant, Members of the Fayette County Election

Commission

Richard J. Myers, Memphis, For Appellee, City of Oakland

OPINION

This case involves, inter alia, an analysis of the constitutionality of Chapter 129, Public Acts

of 2001, codified as T.C.A. § 6-1-210(b) (“Chapter 129”). Defendant, Town of Hickory Withe,

Tennessee (“Hickory Withe”), is a territory of 2,574 people located in Fayette County. Plaintiff, city

of Oakland, Tennessee (“Oakland”), is an existing municipality adjoining the proposed boundaries

of Hickory Withe. On August 1, 1996, the residents of Hickory Withe held an incorporation election

pursuant to the amendments posed in Chapter 666, Public Acts of 1996, to T.C.A. § 6-1-201, for the

explicit purpose of voting on whether to incorporate the town. The result of the election was a

majority vote in favor of incorporation. Soon thereafter, the Chancery Court of Fayette County,

Tennessee declared Chapter 666 unconstitutional.1

In 1997, the Tennessee General Assembly amended T.C.A. § 6-1-201 through Chapter 98,

Public Acts of 1997. The 1997 amendments reduced the number of actual residents required for the

incorporation of a territory from 1,500 to “not fewer than two hundred twenty-five.” Additionally,

the 1997 amendments added the following subsections under Section 10 of the statute:

(j) Any territory that has conducted an election under this section

before the effective date of this act is deemed to have satisfied the

requirements for incorporation under this chapter, including without

limitation, any petition, time, notice and distance requirements of this

chapter; any action of such newly incorporated municipality in such

territory is hereby validated, ratified and confirmed, and no additional

election under subsection (a) need be held. In addition, any ordinance

of annexation by another municipality for any territory within the

corporate limits such new municipality is void and of no effect.

(k) If a territory has proposed to be incorporated under the provisions

of this section after January 1, 1996, the new municipality shall have

priority over any annexation ordinance of an existing municipality

which encroaches upon any territory of the new municipality.

The 1997 amendments to T.C.A. § 6-1-201 were subsequently declared void pursuant to Article II,

Section 17 of the Tennessee Constitution, as the Supreme Court determined that “Sections 7 through

11 of Chapter 98 of the 1997 Tennessee Public Acts are broader than and outside the caption of the

Act.” Tennessee Mun. League v. Thompson, 958 S.W.2d 333, 338 (Tenn. 1997).

In 1998, the General Assembly again entertained and approved amendments to T.C.A. § 6-1-

201. Chapter 1101, Section 9(f)(3) of the Public Acts of 1998 provided:

(A) Notwithstanding any other provision of law to the contrary, if any

territory with not less than two hundred twenty-five (225) residents

acted pursuant to Chapter 98 of the Public Acts of 1997, or Chapter

1

According to the brief filed by the Attorney General on behalf of defendant members o f the Faye tte County

Election Commission, the chancery court concluded that Chapter 666 was an “unconstitutional special act that violated

Article 11, Section 9 of the Tennessee Constitution.”

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666 of the Public Acts of 1996 from January 1, 1996 through

November 25, 1997, and held an incorporation election, and a

majority of the persons voting supported the incorporation, and

results of such election were certified, then such territory upon filing

a petition as provided in § 6-1-202, may conduct another

incorporation election.

(B) If such territory votes to incorporate, the new municipality shall

have priority over any prior or pending annexation ordinance of an

existing municipality which encroaches upon any territory of the new

municipality. Such new municipality shall comply with the

requirements of Section 13(c) of this act.

Soon after its passage, Chapter 1101, Section 9(f)(3) of Public Acts of 1998 was ruled an

unconstitutional violation of Article XI, Section 8 of the Tennessee Constitution because it created

a special classification in contravention of a general law, not supported by a rational basis.2 Town

of Huntsville v. Duncan, 15 S.W.3d 468, 473 (Tenn. Ct. App. 1999).

The residents of Hickory Withe petitioned to hold a second referendum on incorporation in

September 1998. Acting under the authority of T.C.A. § 6-1-201 and the amendments espoused in

Chapter 1101, Hickory Withe held a second incorporation election on October 24, 1998.3 Hickory

Withe again returned a majority vote in favor of incorporation, and approved a mayor-aldermanic

charter. Defendant David Shelton (“Shelton”) was elected mayor in the inaugural elections of

January 1999.

Defendants concede that the “geographic area describing the proposed corporate limits of the

Town of Hickory Withe includes territory within three miles of the boundaries of the Town of

Oakland.” The Attorney General, acting on behalf of the members of the Fayette County Election

2

In its examination of this section, the court noted:

Section 9(f)(3)(A) enables certain territories to hold elections even though they do

not have at least 1,500 residents and are within three miles of an existing

municipality. Furthermore, Section 9(f)(3)(B) gives these territories retroactive

priority over any prior or pending annexation ordinances of adjoining

municipalities, a priority not afforded to other territories seeking incorporation.

Thus, Sectio n 9(f)(3) creates a special classification o f territories that may hold

incorporation elections while other territories of similar size and location cannot do

so under the applicable general law.

Id. at 472 (emphasis in original).

3

As part of the incorporation and petitioning process, “Hickory Withe representatives prepared and submitted

a Proposed Plan of Services ... which set forth the services to be provided, along with projected revenues and

expenditures for the incorporated territory.”

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Commission (“Election Commission”), further acknowledges that “[t]he Town of Oakland annexed

territory within the proposed corporate limits of the Town of Hickory Withe.” According to the

Affidavit of defendant Shelton, Hickory Withe has continuously operated as a municipal corporation

since the October 1998 election.

In April 2001, the General Assembly undertook to amend T.C.A. § 6-1-210 via Chapter 129,

Public Acts of 2001, adding the following subsection:

(b) Notwithstanding any provision of this chapter or any other law to

the contrary,

IF the registered voters of any unincorporated territory approved a

mayor-aldermanic charter and elected municipal officials, acting

pursuant to the provisions of this chapter on or before December 31,

1999; AND

IF, from the election of such officials until the effective date of this

act, the territory has continuously functioned as a mayor-aldermanic

municipality; AND

IF the territory, between the date of such election and the effective

date of this act, received and expended state funding allocated for

municipalities; THEN

The adoption of such charter, the incorporation of such territory as a

mayor-aldermanic municipality and the election of such officials are

hereby ratified and validated in all respects; and no flaw or defect or

failure to comply with any requirement of incorporation, set forth in

§ 6-1-201(b), shall invalidate the territory’s status as an incorporated

municipality or invalidate any ordinance passed by the board.

Chapter 129, Public Acts of 2001.

Chapter 129 was codified as T.C.A. § 6-1-210(b), and took effect on April 26, 2001, while this

action was still pending.

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Oakland filed its original Complaint for Injunction and Declaratory Relief against defendants

Lenita McCraw, Fayette County Administrator of Elections,4 the Election Commission,5 Shelton,

and Hickory Withe on December 18, 1998. At the heart of Oakland’s complaint is the allegation that

Hickory Withe was incorporated pursuant to an unconstitutional Public Act, therefore rendering the

town’s election, and subsequent incorporation, invalid. Oakland advanced several arguments

attacking the constitutionality of Chapter 1101, including assertions that this act violated Sections

8 and 9 of Article XI of the Tennessee Constitution.6

The Attorney General filed a Motion for Partial Dismissal pursuant to Tenn. R. Civ. P.

12.02(6), or, in the alternative, a Motion for Partial Summary Judgment. As the basis for these

motions, the Attorney General rebuffed plaintiff’s claims that Chapter 1101 was unconstitutional,

and further asserted that “Section 9(f)(3) of the Act is a general law, does not interfere with vested

rights, and is supported by a rational basis.”

Mayor Shelton and the Town of Hickory Withe filed a joint Answer to Oakland’s Complaint

on February 26, 1999. In addition to denying plaintiff’s allegations that Chapter 1101 was

unconstitutional, defendants affirmatively pled that the action should be controlled by T.C.A. § 2-17-

105 as an election contest. Defendants set forth the following affirmative defenses:

38. This Complaint should be dismissed for lack of standing of the

Plaintiff.

39. The Complaint should be dismissed for lack of jurisdiction due to

Plaintiff’s failure to timely file a petition for writ of certiorari.

40. The Complaint should be dismissed for failure to be filed

pursuant to Tennessee Code Annotated 2-17-101, et seq. and for

failure to file within the time limit set forth in that statute.7

41. The Complaint should be dismissed based upon the equitable

principles of estoppel and laches.

4

Plaintiff voluntarily dismissed this cause of action as to defendant McCraw in July 2001, said dismissal being

granted by the court in an Order entered July 12, 2001.

5

The following individuals were sued in their official capacity as Election Commission members: Michael

Thoma s, Erne stine B rown, Maxine M iddlecoff, Alice P. M cClanahan, and W illiam P. Yan cey.

6

Oakland properly notified the Attorney General of the State of Tennessee of its intent to question the

constitutionality of Chapter 1101, Public Acts of 1998.

7

T.C.A . § 2-17-105 (1994) provide s:

Time for filing compla int. – The complaint contesting an election under § 2-17-

101 shall be filed within ten (10) days after the election.

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On August 2, 1999, the Tennessee Supreme Court entered an Order designating Judge William H.

Inman to hear the case “to its conclusion.”

The Attorney General filed a Motion to Continue Trial on October 25, 1999. The Attorney

General sought continuance on the grounds that defendant was planning to appeal the Court of

Appeals’ decision in Town of Huntsville v. Duncan, in which the court found that “Section 9(f)(3)

of Chapter 1101 of the Public Acts of 1998 is unconstitutional because it offends Article XI, Section

8 of the Tennessee Constitution.” The trial court granted defendant’s motion, recognizing that “[a]

principal issue in this litigation involves the constitutionality of Section 9(f)(3) of Chapter 1101,

Public Acts of 1998.”

On November 1, 1999, the Attorney General filed a joint Motion for Partial Summary

Judgment asserting that defendants were entitled to judgment as a matter of law “as to the allegations

that these Defendants violated T.C.A. § 6-1-202(a).” In May 2000, Oakland countered with its own

Motion for Summary Judgment, insisting that Huntsville v. Duncan was controlling authority with

regard to the issue of whether Chapter 1101 was constitutional. As further support for this assertion,

Oakland noted that the Tennessee Supreme Court had recommended the Eastern Section’s amended

opinion in Huntsville for publication.

Upon the Supreme Court’s Order of May 1, 2000 designating Huntsville for publication, the

Attorney General filed a Notice of Withdrawal of defendants’ motions for partial dismissal and

partial summary judgment. Defendants, moreover, stipulated and agreed that “Section 9(f)(3) of

1998 Tenn. Pub. Acts Ch. 1101 is unconstitutional because it establishes a classification that is not

supported by a rational basis as required by Article XI, Section 8 of the Tennessee Constitution.”

The trial court subsequently granted Oakland’s Motion for Partial Summary Judgment to the extent

that “Section 9(f)(3)(B) of Chapter 1101 of the 1998 Public Acts is unconstitutional as held by the

Court of Appeals in Town of Huntsville et al. v. Duncan, C/A 03A01-9901-CH-00024.”

On April 26, 2001, Chapter 129 was signed into law. Immediately thereafter, Oakland

amended its complaint8 to challenge the constitutionality of Chapter 129 and to further request that

the court grant the following relief:

The Court declare [Chapter 129] unconstitutional generally, and/or as

it applies to the Plaintiff particularly and therefore void, and

permanently enjoin enforcement of said Act.

The Court grant plaintiff a permanent injunction prohibiting

defendants from conducting any further elections of any kind for the

Town of Hickory Withe.

8

The court permitted Oakland to amend its complaint pursuant to a Consent Order entered M ay 9, 2001 . We

note that Oakland properly notified the Attorney General of its intent to challenge the constitutionality of Chapter 129.

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Defendants Shelton and Hickory Withe filed a joint Answer in response to Oakland’s

amended Complaint in May 2001.9 As part of their answer, defendants affirmatively pled “that the

passage and signing into law of House Bill 1930/Senate Bill 1903, Chapter 129 of the Public Acts

of 2001 (the “Ratification Act”) has cured any alleged violations of T.C.A. 6-1-201 et seq. that

occurred during the incorporation of Hickory Withe....”

On February 15, 2002, Oakland filed a Motion for Partial Summary Judgment challenging

the constitutionality of Chapter 129 on the following basis:

For grounds, Oakland will show that Chapter 129 is unconstitutional:

pursuant to Const. Art. 11, § 9, because it is a special law regarding

the incorporation of a municipality; and, pursuant to Const. Art. 11,

§ 8, because it is a special law in contravention of a general law that

creates an arbitrary class, and whose status as such has already been

adjudicated in Town of Huntsville v. Duncan, 15 S.W.3d 468 (Tenn.

Ct. App. 1999). There is thus no genuine issue of material fact that

as a matter of law Oakland is entitled to partial summary judgment

that Chapter 129 is unconstitutional and thus void.

The Attorney General filed a response to plaintiff’s motion, defending the constitutionality of

Chapter 129. Specifically, the Attorney General argued that Chapter 129 does not create a special

class, as it “validates the incorporation of every city that has incorporated in Tennessee since June

30, 1991 and is still actively operating.” Alternatively, the Attorney General suggested that if

Chapter 129 does, in fact, create a special class, such class is justified by a rational basis.

On April 15, 2002, the court entered an Order granting Oakland’s Motion for Partial

Summary Judgment. In concluding that Chapter 129 was an unconstitutional violation of Article XI,

Section 9 of the Tennessee Constitution, the court noted:

The intended effect of Chapter 129 is to validate the

incorporation of various small territories – such as Hickory Withe –

whether the general laws for incorporation were complied with or not.

Stated differently, Chapter 129 undertook to remove the shadow of

Duncan from various small towns whose creation and existence were

mirror images of Helenwood, the town involved in Duncan. Chapter

129 thus squarely offends Article 11 Section 9 of the Constitution

which declares “[t]he General Assembly shall by general law provide

the exclusive methods by which municipalities may be created,

merged, consolidated and dissolved and by which municipal

boundaries may be altered.” See Frost v. City of Chattanooga, 488

S.W.2d 370 (Tenn. 1972).

9

The Attorney General filed an Answer to Oakland’s Amended Complaint on May 25, 2001.

-7-

Oakland correctly points out that only those territories

incorporated under Chapter 98 of the 1997 Public Acts, which was

declared unconstitutional in Tenn. Mun. League v. Thompson, 958

S.W.2d 333 (Tenn. 1997), would require validation, if possible, and

that the only difference between Chapter 129 (in controversy here)

and Section 9(f)(3), (in controversy in Duncan), is “that the latter

made the [various small towns] continued existence contingent upon

another vote, while the former simply decrees it.” Chapter 129 is a

special law creating a number of small towns in stark contravention

of the Constitution.

Seven days after the filing and entrance of this Order, Hickory Withe filed a motion seeking

clarification of the status of the case, and the April 15 Order. The basis for Hickory Withe’s motion

was its assertion that the trial court’s April 15 Order did not provide a final judgment or resolution

on the following issues: (1) “whether the Court had jurisdiction of this matter because the Complaint

was not filed within ten (10) days of the election pursuant to T.C.A. §§ 2-17-101 et seq., and

specifically T.C.A. § 2-17-105 (1998);” (2) “whether or not laches and estoppel applied to the Town

of Oakland Complaint;” and (3) “whether or not it should have been filed as a Petition for Certiorari

within the proper deadline set forth in the Petition for Certiorari statute being T.C.A. § 27-9-101 et

seq.”

On May 13, 2002, the Attorney General, acting pursuant to T.R.C.P. 54.02, moved for entry

of a final judgment on the constitutionality of Chapter 129. The Attorney General’s motion was

granted by Order of the trial court on June 10, 2002. Shortly thereafter, the Attorney General filed

a Motion to Revise the June 10 Order, citing concern that the “Order may not be sufficient to support

an appeal under Rule 54.02.”

The Attorney General filed a Notice of Appeal, appealing the trial court’s April 15 Order on

June 27, 2002. Defendants Shelton and Hickory Withe followed the Attorney General’s lead, and

filed a joint Notice of Appeal on July 5, 2002, challenging the court’s April 15 ruling. The Attorney

General filed a Revised Notice of Appeal on July 9, 2002.

On October 9, 2002, the trial court entered a Final Order on the remaining issues10 raised by

Hickory Withe and Oakland in their cross motions for summary judgment. The court, in its

Memorandum Opinion, stated with regard to these issues:

Hickory Withe, in a fall-back position of sorts, argues that if

it cannot prevail under the Ratification Act (declared invalid by this

Court) its efforts to incorporate under prior law must be

10

The following issues were withdrawn prior to entry of the Final Order: (1) whether the Plan of Services

subm itted by H ickory W ithe complied with applicable statutory guideline s; and (2) whether O akland ’s complaint was

properly brought under T.C.A. § 29-35-101.

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acknowledged as valid, notwithstanding its (1) admitted violation of

the three mile limit, (2) its assertion that it did not rely exclusively

upon a particular statute, (3) its concession that the boundaries of

Hickory Withe cannot be judicially redrawn to obviate the three mile

violation. Hickory Withe argues that the Oakland complaint is

untimely because not filed within the familiar ten day period

regarding election contests.

Keeping within the parameters of Rule 56, the undersigned is

of the opinion that (1) T.C.A. §§ 2-17-101 et seq. is not implicated in

this case, which does not involve an election contest. See, e.g.,

Brown v. Vaughn, 310 S.W.2d 444 (Tenn. 1957), and Forbes v. Bell,

816 S.W.2d 716 (Tenn. 1991). The standing to sue issue is clearly

not a defense to this action, see, e.g., Collierville v. Fayette County

Election Commission, 539 S.W.2d 334 (Tenn. 1976), and neither is

the equitable principle of laches.

Based on these findings, the court granted Oakland’s Motion for Summary Judgment, denied the

motion of defendant Hickory Withe, and ordered the immediate dissolution of Hickory Withe’s

Charter.

On October 16, 2002, defendants Shelton and Hickory Withe filed a joint Notice of Appeal,

challenging the Final Order of October 9. Defendants noted:

[T]hey currently have an appeal pending from a prior order of this

Court in this case, that being an appeal from the Court’s Order of

April 15, 2002, as made final by the Court’s order of June 10, 2002,

holding that the Tennessee Ratification Act, Tenn.Code Ann. § 6-1-

210(b), violates Article XI, Section 9 of the Tennessee Constitution.

The Final Order which is the subject of the present appeal addresses

other issues in the case. Approximately concurrently with the filing

of this Notice of Appeal, a joint motion is being filed with the Court

of Appeals on behalf of all parties to both appeals, moving the Court

of Appeals to consolidate the two appeals and to expedite their

resolution.

Therefore, on appeal, defendants Hickory Withe, Shelton, and Attorney General (acting on

behalf of Election Commission) present the following issue for review: Whether Chapter 129, Public

Acts of 2001, violates Article XI, Section 9, of the Tennessee Constitution. Defendants Hickory

Withe and Shelton present for review the additional issue of whether the court lacks jurisdiction over

this matter, “because the complaint was not filed within 10 days of the election in question, as

required by T.C.A. § 2-17-101 et seq. governing election contests.”

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A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.

1993), our Supreme Court said:

Once it is shown by the moving party that there is no genuine issue

of material fact, the nonmoving party must then demonstrate, by

affidavits or discovery materials, that there is a genuine, material fact

dispute to warrant trial. In this regard, Rule 56.05 provides that the

nonmoving party cannot simply rely upon his pleadings but must set

forth specific facts showing that there is a genuine issue of material

fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from

the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.

1995). Since only questions of law are involved, there is no presumption of correctness regarding

a trial court’s grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of

the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren

v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

I.

Because this court is required to abstain from ruling on the constitutionality of a statute

unless such a ruling is absolutely necessary, we begin by examining Hickory Withe’s second issue,

the question of whether the trial court lacks jurisdiction over this matter “because the complaint was

not filed within 10 days of the election in question, as required by T.C.A. § 2-17-101 et seq.

governing election contests.”

In arguing that Oakland’s complaint is time barred as an election contest under the 10-day

statute of limitations set forth in T.C.A. § 2-17-105, Hickory Withe relies primarily on the Tennessee

Supreme Court’s decision in Dehoff v. Attorney General, 564 S.W.2d 361 (Tenn. 1978). Dehoff

involved a referendum election, posing to voters the question of whether the term of the Rutherford

County judge should be changed from an eight-year term to a four-year term. Id. at 62. A majority

of the votes cast were for the four-year term. Id. More than three months following the election,

citizens and registered voters of Rutherford County filed a declaratory judgment suit seeking to have

the election declared invalid for, among other things, constitutional reasons. Id. The defendant

denied that there were any grounds for declaring the election invalid and asserted the further defense

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that the action should be dismissed because it was not filed within the ten-day statute of limitations

as required by then T.C.A. § 2-1705. Id. at 362-63. The Supreme Court, in affirming the decision

of the chancellor that the action was in reality an election contest and was barred because it was not

timely filed, stated:

Accordingly, in the case at bar, it is clear that insofar as the

plaintiffs seek to contest the election of May 2, 1974, the applicable

period of limitations is the ten day period prescribed by T.C.A., § 2-

1705, and since the suit was not filed within that ten day period, it is,

to that extent, barred as held by the Chancellor.

The election code of this State does not specifically define

“election contest.” However, in Hatcher v. Bell, Tenn., 521 S.W.2d

799 (1974), this Court, speaking through Mr. Justice Cooper, has

given a broad interpretation to the words “election contest” as they

are used in the election code. Thus, we said:

There is no question but that a suit which attempts to

go behind the election returns, to recount the votes or

otherwise assail the manner and form of the election

is an election contest. (Citations omitted). But an

election contest is not limited to an attack on the

integrity of the election process, nor is it limited to an

attack by a candidate who makes claim to the office.

* * *

We also said in the Hatcher case that the target of an election

contest is the validity of the election.

Id. at 363.

Concerning contested elections, T.C.A. § 2-17-101 (1994) provides:

2-17-101. Jurisdiction - Standing. - (a) Except as otherwise

expressly provided in this chapter, election contests shall be tried in

the chancery court of the division in which the defendant resides. The

chief justice of the supreme court shall assign a chancellor from a

different division to decide a contested election of chancellor.

(b) The incumbent office holder and any candidate for the office may

contest the outcome of an election for the office. Any campaign

committee or individual which has charge of a campaign for the

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adoption or rejection of a question submitted to the people may

contest the election on the question.

We believe that Hickory Withe’s reliance on Dehoff is misplaced. Under Dehoff, the

plaintiffs had standing to file an election contest. See Brackin v. Sumner County, 814 S.W.2d 57,

61 (Tenn. 1991); Rodgers v. White, 528 S.W.2d 810, 811 (Tenn. 1975).

Oakland, in contrast, has no standing to proceed in an election contest concerning a

referendum involving the citizens of the community of Hickory Withe. The City of Oakland is not

qualified to vote in that referendum, and it is not a “campaign committee or individual which has

charge of a campaign for the adoption or rejection of a question submitted to the people.” T.C.A.

§ 2-17-101(b). To adopt Hickory Withe’s argument would effectively deny Oakland a remedy while

it obviously has a remedy in a quo warranto proceeding. See Corp. of Collierville v. Fayette County

Election Comm’n, 539 S.W.2d 334 (Tenn. 1976) (wherein the town of Collierville, Tennessee filed

a proceeding to declare invalid the incorporation of Piperton for violation of the statute proscribing

encroachment within two miles of Collierville’s boundaries). The opinion presented the question:

“Does the existing city have standing to sue to invalidate the charter of the proposed city when the

two-mile provision and the resulting 15-month mandatory waiting period are ignored.” Id. The

Supreme Court answered this question in the affirmative. Id. at 336. The trial court had sustained

a motion to dismiss, holding that since this was a quo warranto proceeding, Collierville had no

standing to sue, as it would have to be brought in the name of the district attorney general. Id. at

335. The Supreme Court’s ruling was premised on its finding that Collierville, as an existing city,

was an “‘arm of the state,’and a repository of a portion of the state’s sovereign power,” which in turn

conferred the right to sue to challenge the corporate existence of Piperton. Id. at 337.

From the above authorities, we conclude that Oakland’s suit to challenge the corporate

existence of Hickory Withe is not an election contest, and therefore not barred by the ten-day

limitation provision established for election contests in T.C.A. § 2-17-105.

II.

The second issue presented for review is whether Chapter 129, codified as T.C.A. § 6-1-

210(b) (2002), violates the Municipal Boundaries Clause of Article XI, Section 9. Statutes enacted

by the legislature are presumed constitutional. Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856,

858 (Tenn. 1996). Thus, we must “indulge every presumption and resolve every doubt in favor of

constitutionality.” Id.

Oakland alleges that Chapter 129 is a special law in violation of Article XI, Section 9, of the

Tennessee Constitution as it validates the corporate existence of a “handful class” of municipalities,

despite said municipalities’ failure to comply with the three mile incorporation requirement set forth

in T.C.A. § 6-1-201(b). Defendants counter that Chapter 129 is a general law under the Municipal

Boundaries Clause and, in the event that Chapter 129 creates a special classification, the

classification is valid as it is supported by a rational basis.

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The Municipal Boundaries clause of Article XI, Section 9 of the Tennessee Constitution

provides:

The General Assembly shall by general law provide the exclusive

methods by which municipalities may be created, merged,

consolidated and dissolved and by which municipal boundaries may

be altered.

Tenn. Const. art. XI, § 9 (emphasis added).

Under T.C.A. § 6-1-201, a territory is entitled to incorporate if it complies with certain

requirements. Included among these requirements is the provision that “no unincorporated territory

shall be incorporated within three (3) miles of an existing municipality....” It is undisputed that

Hickory Withe violated T.C.A. § 6-1-201(b) by incorporating within three miles of Oakland’s

corporate limits. Despite this infraction, Hickory Withe maintains that its corporate existence is

validated by Chapter 129.

To reiterate, Chapter 129, codified as T.C.A. § 6-1-210(b) (2002), provides:

Notwithstanding any provision of this chapter or any other law to the

contrary,

IF the registered voters of any unincorporated territory approved a

mayor-aldermanic charter and elected municipal officials, acting

pursuant to the provisions of this chapter on or before December 31,

1999; AND

IF, from the election of such officials until April 26, 2001, the

territory has continuously functioned as a mayor-aldermanic

municipality; AND

IF the territory, between the date of such election and April 26, 2001,

received and expended state funding allocated for municipalities;

THEN

The adoption of such charter, the incorporation of such territory as a

mayor-aldermanic municipality and the election of such officials are

hereby ratified and validated in all respects; and no flaw or defect or

failure to comply with any requirement of incorporation, set forth in

§ 6-1-201(b), shall invalidate the territory’s status as an incorporated

municipality or invalidate any ordinance passed by the board.

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We turn to this court’s decision in Town of Huntsville v. Duncan, 15 S.W.3d 468 (Tenn. Ct.

App. 1999) for guidance in determining whether Chapter 129 is a special law in violation of the

Municipal Boundaries Clause of Article XI, Section 9.11 Although Huntsville was not decided upon

the same constitutional provision as the one before this court, the factual and legal analysis instituted

by the Huntsville court is analogous to the situation at bar. In Huntsville, the plaintiffs filed suit

challenging the constitutionality of Chapter 1101, Public Acts of 1998. Id. at 469. Defendant town

of Helenwood, an adjoining territory of less than 1,500 people, held an incorporation election in

November 1997 pursuant to Chapter 1101. Id. at 470-71. A majority of voters voted in favor of

incorporation, and Helenwood was thereby incorporated despite the fact that it had less than 1,500

citizens and was situated within three miles of Huntsville. Id. at 471.

11

Defendants appear to contend that Hu ntsville is not controlling authority because the statute involved in that

case was ruled unconstitutional and invalidated on the basis that the “act created a classification that was not supported

by a rational basis under Article XI, Section 8 of the Tennessee Constitution.” Because Hu ntsville involved the

application of Section 8, not Section 9, defendants suggest that Huntsville is not dispositive of the issue of whether

Chapter 1 29 violates the Municipal Bo unda ries Clause of Section 9.

Article XI, Section 8 pro vides:

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 b enefit of ind ividuals

inconsistent with the general laws of the land; nor to pass any law granting to any

individual or individuals, rights, privileges, immunitie, [immunities] or exemptions

other than such as may be, b y the same law extended to any member of the

com munity, who m ay be a ble to bring himself within the provisions of such law.

No corp oration shall be created or its powers increased or diminished by special

laws but the General Assembly shall provide by general laws for the organization

of all corporations, hereafter created, which laws may, at any time, be altered or

repealed, and n o such alteration or rep eal shall interfere w ith or divest rights

which have become vested.

Tenn. Const. art. XI, § 8 (emphasis added).

According to the court in Hu ntsville, “Tennessee courts have long recognized the similarity between Article

XI, Section 8, and the Equal Protection Clause of the Federal Constitution, and have therefore applied an equal protection

analysis to constitutional challenges brought pursuant to Article XI, Section 8.” Id. at 472 (citations omitted). Section

8 is a broadly defined equal protection provision that assigns to the General Assembly the power to organize corporations

pursuant to ge neral laws, thereby prohibiting the cre ation o f corporatio ns through sp ecial laws.

In contrast, Section 9 is a more direct and precisely defined equal protection provision that gives the General

Assembly the exclusive power to create municipalities by general law. However, because Hickory W ithe is currently

operating as a municipal corporation, and recognizing that Sections 8 and 9 are both equal protection provisions that

prohibit the creation o f corporatio ns and municipalities respectively, we find that Hu ntsville is, at a minimum,

persuasive authority with regard to the issue o f whether Chapter 1 29 is a special law in violatio n of the Municipal

Boundaries Clause.

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Plaintiff, Town of Huntsville, “specifically contest[ed] Section 9(f)(3) of Chapter 1101,

which permit[ted] certain territories to hold incorporation elections even though these territories

[did] not satisfy the minimum requirements for such elections as set forth in the general law.” Id.

at 469-70 (citing T.C.A. § 6-1-201 (1998)). The parties filed cross motions for summary judgment,

and the trial court granted summary judgment in favor of defendants, “finding that Section 9(f)(3)

is constitutional.” Id. at 470. Plaintiffs raised five issues on appeal, including the separate issues

of whether Section 9(f)(3) violated Article XI, Section 8, and Article XI, Section 9. Id.

Considering first the issue of whether Section 9(f)(3) violated Section 8 by “(a) creating a

class of territories that can incorporate despite the general population and distance requirements

applicable to municipalities statewide, [and] (b) without any rational basis for the classification,” the

court of appeals concluded that “Article XI, Section 8 is implicated in this case because Section

9(f)(3) contravenes the general law pertaining to the incorporation of municipalities.” Id. at 471-72.

As support for this holding, the court noted that the statute in question enabled a specific class of

territories to hold incorporation elections despite their failure to comply with the population and

distance requirements set forth in T.C.A. § 6-1-201. Id. at 472. The court further noted:

Section 9(f)(3) gives these territories retroactive priority over any

prior or pending annexation ordinances of adjoining municipalities,

a priority not afforded to other territories seeking incorporation.

Thus, Section 9(f)(3) creates a special classification of territories that

may hold incorporation elections while other territories of similar size

and location cannot do so under the applicable general law.

Id., (Emphasis in original).

Based on its conclusion that Section 9(f)(3) created a special classification, unsupported by a rational

basis (a point that will be discussed in further detail later in this opinion), the court pretermitted all

other issues presented on appeal, including the issue of whether Section 9(f)(3) violated Article XI,

Section 9. Id. at 473.

Similar to Chapter 1101, Chapter 129 enables a specific class of territories to incorporate

despite failure to comply with a particular provision established in T.C.A. § 6-1-201. Specifically,

Chapter 129 validates the corporate existence of certain territories, including Hickory Withe, even

though these territories violated the three mile requirement set forth in T.C.A. § 6-1-201(b). Further,

we note that Chapter 129 validates the corporate existence of territories that encroach upon the three

mile limit in violation of T.C.A. § 6-1-201(b), but does not validate the incorporation of territories

that fail to comply with the population provision of (a)(1), the plan of services requirement under

(a)(2), and the public hearing provision in (a)(3). By restricting the validation provision to those

territories that failed to comply with the distance requirement set forth in T.C.A. § 6-1-201(b), and

thereby refusing or neglecting to extend the same privilege or right to those territories whose only

incorporation flaw was its failure to comply with the population, plan of services, or public hearing

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requirements of T.C.A. § 6-1-201(a), the legislature further limited the class of territories who are

entitled to benefit from Chapter 129.

By Hickory Withe’s own admission, Chapter 129 currently applies to only ten municipalities

in Tennessee. Under the language of this statute, only territories in which registered voters

“approved a mayor-aldermanic charter and elected municipal officials, acting pursuant to the

provisions of this chapter on or before December 31, 1999,” fall within the purview of subsection

(b). (emphasis added). This date restriction effectively prohibits the inclusion of any new territory

into this group. Simply stated, subsection (b) only applies to the ten specific territories

acknowledged by Hickory Withe, as the restriction date precludes application to any territory that

was not approved as a mayor-aldermanic municipality by a majority of registered voters, in an

election held on or before December 31, 1999.

For these reasons, we hold that Chapter 129 creates a special classification, and is therefore

a special law in violation of Article XI, Section 9.

Having determined that Chapter 129 is a special law in violation of Article XI, Section 9, we

now consider whether there is a rational basis supporting the special classification created by this

statute. We begin by noting that there is no Tennessee case law directly stating that a special law

violating Section 9 is valid if supported by a rational basis. Moreover, we do not hold that a court

is required to conduct a rational basis analysis when considering the constitutionality of a statute

under Article XI, Section 9. However, we recognize that the Tennessee Supreme Court, in the 1990

case of Hart v. City of Johnson City, applied a rational basis analysis in determining whether

population classifications set out in an amendment to a statute authorizing municipal annexation

contests violated Article XI, Section 9 because the amendment was a special law. 801 S.W.2d 512,

515 (Tenn. 1990) (“[W]e have never upheld class legislation in annexation statutes. Such statutes

are subject to an entirely different constitutional prohibition, the Municipal Boundaries Clause found

in art. XI, § 9.”). We therefore proceed with an analysis of whether there is a rational basis to

support Chapter 129.

“To withstand scrutiny under the rational basis standard, a classification must ‘have some

basis which bears a natural and reasonable relation to the object sought to be accomplished, and there

must be some good and valid reason why the particular individual or class upon whom the benefit

is conferred, or who are subject to the burden imposed, not given to or imposed upon others, should

be so preferred or discriminated against.’” Huntsville, 15 S.W.3d at 472 (citing State v. Nashville,

C. & S. L. R. Co., 124 Tenn. 1, 135 S.W. 773, 775 (1911); Knoxville’s Cmty. Dev. Corp. v. Knox

County, 665 S.W.2d 704, 705 (Tenn. 1984)). The reasonableness of a classification is determined

upon the facts of the particular case. Huntsville, 15 S.W.3d at 472 (citing Estrin v. Moss, 221 Tenn.

657, 430 S.W.2d 345, 349 (1968)).

In his brief, the Attorney General asserts that Chapter 129 is clearly supported by a rational

basis, and further notes:

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The Ratification Act promotes predictability and protects the interests

of members of the public who have relied on the corporate existence

of these cities. It protects these cities from operating under the threat

that their existence may, any time in the future, be challenged and

even extinguished based on a technical failure many years in the past.

Hickory Withe echoes the rationale advanced by the Attorney General that Chapter 129 creates

predictability and stability, and further states:

In effect, the legislators exercised their judgment to declare that those

groups of citizens who have made a serious and sustained effort to

organize and function as a municipality, and who have been operating

as such for some period of time, deserve to be recognized as such.

Moreover, with the passage of time, such communities typically have

taken actions, have made contractual promises, have incurred debts,

have begun projects, and in general have created expectations, all of

which would be unduly disrupted if they are suddenly subject to

challenge. Indeed, in this very case, the challenge came on the eve of

the election of officers, after campaigns had been conducted.

While we are sympathetic to the notion that Chapter 129 creates stability and predictability

for residents of the ten territories covered under this provision, including Hickory Withe, we must

also consider the interests of existing municipal corporations such as Oakland, who are also directly

affected by this statute. Under T.C.A. § 6-1-201, existing municipal corporations are entitled to a

protected three mile zone between their corporate boundaries and the boundaries of municipalities

seeking incorporation. By exempting specific territories from the three-mile incorporation

requirement set forth in T.C.A. § 6-1-201, Chapter 129 threatens the reasonable expectations of

existing municipal corporations.

With regard to Hickory Withe’s assertion that the expenditure of time and money or the

creation of contracts in furtherance of, or reliance upon, incorporation provides a rational basis for

the statute in question, we note that Oakland filed its complaint challenging the validity of the

October 24, 1998 election less than two months after the election. There is no indication in the

record that Hickory Withe entered into any contracts or incurred any debts during this time. In his

affidavit, Mayor Shelton averred that he “spent a considerable amount of personal money and time

running for offices for the Town of Hickory Withe,” and noted that numerous citizens volunteered

“thousands of hours” in helping to organize the town. Mayor Shelton additionally suggested that the

town provided generous financial support to its volunteer fire department.12 In Huntsville, this court

determined that “[t]he mere fact that residents ... expended money and effort to incorporate cannot

justify exemption from a general law....” Town of Huntsville v. Duncan, 15 S.W.3d 468, 473

12

We note that the fire department was incorporated in February 1999, more than one year after Oakland filed

its complaint

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(Tenn. Ct. App. 1999). On this basis, we find that the mere fact that Mayor Shelton and other

candidates spent time and money in campaigning for public office, even when combined with

evidence that several citizens volunteered thousands of hours toward the organization of Hickory

Withe, does not constitute a rational basis in support of the special classification established by

Chapter 129.

As a final note, we are unable to “discern a rational difference” between Hickory Withe in

the one instance, and the hundreds of other small Tennessee communities who are prohibited from

seeking incorporation because these communities lack 1,500 or more citizens, encroach too closely

upon the boundaries of existing municipalities, or failed to comply with the plan of services or public

hearing requirements set forth in T.C.A. § 6-1-201. See Huntsville, 15 S.W.3d at 473. “The record

does not reflect any intrinsic difference between the community of [Hickory Withe] and these other

small communities.” Id. We find simply that there is no rational basis to distinguish Hickory Withe

from other similar small communities.

Because we find no rational basis to support the special classification created by Chapter 129,

we hold that Chapter 129 is unconstitutional as it creates a special classification, unsupported by

rational basis, in contravention of Article XI, Section 9, of the Tennessee Constitution.

III.

In conclusion, we affirm the trial court’s order granting partial summary judgment for

plaintiff, City of Oakland, holding that Chapter 129, Public Acts of 2001, violates Article XI, Section

9, of the Tennessee Constitution. We further affirm the trial court’s order granting Oakland’s

Motion for Summary Judgment holding that Oakland’s action to invalidate Hickory Withe’s

referendum election and to revoke its charter is not an election contest governed by the 10-day

limitation period for such actions. Costs of appeal are assessed against defendants Town of Hickory

Withe, David Shelton, and Members of the Fayette County Election Commission and their sureties.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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