Metropolitan Government of Nashville and Davidson County, Tennessee v. Davidson County Election Commission

03/25/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 3, 2022 Session

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON

COUNTY, TENNESSEE ET AL. v. DAVIDSON COUNTY ELECTION

COMMISSION

Appeal from the Chancery Court for Davidson County

No. 21-0433-IV Russell T. Perkins, Chancellor

___________________________________

No. M2021-00723-COA-R3-CV

___________________________________

At issue is an election commission’s decision to set an election on proposed referendum

measures to a local government’s charter. In pre-election litigation over this decision, the

trial court concluded, for various reasons, that the election commission’s decision to hold

the election should be reversed. The election commission now urges this Court to reinstate

its decision to hold an election and to remand this matter to it with instructions to schedule

a referendum election at a future date pursuant to Tennessee Code Annotated section 2-3-

204(a). As explained in more detail in this Opinion, we conclude that this requested relief

is not proper under the cited statute. Moreover, because this appeal cannot serve as a

vehicle to grant the election commission any relief, we consider the matter moot.

Notwithstanding this posture in the case, we do find it appropriate, in the exercise of our

discretion, to address one of the specific legal issues presented by this appeal as an

exception to the mootness doctrine. As to that issue, which concerns the interpretation of

a form requirement the local government’s charter places on petitions to amend the charter

by referendum election, we agree with the trial court that the referendum petition at issue

in this case ran afoul of the requirement in dispute.

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

Part; Affirmed in Part; and Remanded.

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT

and W. NEAL MCBRAYER, JJ., joined.

James F. Blumstein and Austin L. McMullen, Nashville, Tennessee, for the appellant,

Davidson County Election Commission.

Wallace W. Dietz, Allison L. Bussell, Lora Barkenbus Fox, Catherine J. Pham, and Robert

E. Cooper, Jr., Nashville, Tennessee, for the appellees, Metropolitan Government of

Nashville & Davidson Co., Mayor of Metropolitan Government of Nashville & Davidson

County, and Finance Director of Metropolitan Government of Nashville & Davidson

County.

Daniel A. Horwitz and Lindsay E. Smith, Nashville, Tennessee, for amicus curiae

Nashville Area Chamber of Commerce and Save Nashville Now.

James Roberts, Nashville, Tennessee, for amicus curiae 4 Good Government.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

This case concerns the decision of the Davidson County Election Commission (“the

Commission”) to hold a referendum election on July 27, 2021, with respect to a petition to

amend the Charter of the Metropolitan Government of Nashville and Davidson County,

Tennessee (“Metro Charter” or “Charter”) sponsored by the group 4 Good Government

(“4GG”). A previous petition sponsored by 4GG was declared deficient in a 2020 decision

by the Davidson County Chancery Court. 4GG’s present petition ostensibly aimed to

correct the prior noted defects and recited that it was “to be voted on by the citizens on

May 28, 2021 or June 14, 2021, whichever is earlier as permitted by Metro Charter §

19.01.” Specifically, it proposed the following amendments:

1. Limit Property Tax Rates – Add to Article 6, § 6.07, Paragraph 5:

“Property Tax Rates shall not increase more than 3% per fiscal year upon

enactment without a voter referendum, pursuant to Tenn. Code Ann. § 2-3-

204. For Fiscal Years 2021-2022 and 2022-2023 the property tax rate(s)

shall revert to Fiscal Year 2019-2020’s tax rate(s), or lower if required by

law. This amendment’s provisions are severable.”

2. Recall Elected Officials – (A) Add to Article 15, § 15.07: “Petitions to

recall elected officials filed after January 1, 2021, under this section shall

contain the signatures and addresses of registered qualified voters in

Davidson County equal to ten (10) percent of the citizens voting in the

preceding Metro general election in the district or area from which the

recalled official was elected. Such Petitions shall be filed with the metro

clerk within seventy-five (75) days of the date the notice is filed. This

amendment’s provisions are severable” (B) Replace existing Article 15, §

15.08, Paragraph 2 with: “A recalled official’s name shall not appear on

the recall ballot, but such official may qualify as a write-in candidate. This

amendment’s provisions are severable.”

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3. Abolish Lifetime or Other Benefits for Elected Officials – Add to Article

18, § 18.05, Paragraph 1: “No elected official shall receive any benefits at

taxpayer expense as a result of holding such elected office without a voter

referendum.”

4. Preserve Voters’ Charter Amendments – Create Article 19, § 19.04:

“Voter-sponsored Charter Amendments approved after January 1, 2021,

shall be amended only by voter-sponsored Petition, notwithstanding any law

to the contrary.”

5. Protect Publicly-Owned Parks, Greenways & Lands – Create Article 18,

§ 18.18: “No portion of a publicly-owned park, greenway, or other real

property shall be transferred or conveyed without 31 votes of Metro Council.

All transfers of interest in real property shall be at fair market value based

on an independent appraisal. Public referendum shall be required for

transfers of interest in such publicly-owned properties valued over

$5,000,000, and for leases exceeding twenty (20) years, unless prohibited by

state law.”

6. Protect Promises to Nashville – Create Article 18, § 18.19: “If a

professional sports team leaves Nashville, or ceases playing professional

games for more than twenty-four (24) consecutive months during the term of

a team’s ground lease, all sports facilities and related ancillary development

related to the defaulting team shall revert to public property, and all related

contracts shall terminate, including land leased from the Nashville

Fairgrounds, and just payment shall be paid, if required by law.”

While 4GG filed the petition with the Metropolitan Clerk in late March 2021, the Clerk did

not certify a copy of the petition to the Commission until May 6, 2021. The Commission

voted on May 10, 2021, to place the petition on the ballot. The following day, the

Metropolitan Government of Nashville and Davidson County, the Metro Mayor, and Metro

Finance Director (collectively “Metro Litigants”) filed a petition for writ of certiorari and

writ of mandamus in the Davidson County Chancery Court.1 The Metro Litigants asserted

a number of infirmities with the proposed Charter amendments, in addition to contending

that general deficiencies existed with respect to the petition itself.

In an order entered on June 22, 2021, the trial court held that a number of the

objections raised by the Metro Litigants were not ripe for pre-election judicial challenge

under City of Memphis v. Shelby County Election Commission, 146 S.W.3d 531 (Tenn.

1

According to the trial court record, the Metro Litigants also asserted other original jurisdiction

claims, and the Election Commission asserted a counterclaim during the course of litigation. These claims

were, however, severed from the instant litigation.

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2004). As the Tennessee Supreme Court generally instructed in that case, “pre-election

challenges to the substantive constitutional validity of referendum measures are not ripe

for determination by a court, while pre-election challenges to the form or facial

constitutional validity of referendum measures are ripe for judicial scrutiny.” Id. at 539.

Despite its finding that some objections to the amendments were not presently ripe for

review under the City of Memphis framework, the trial court nonetheless concluded that

several objections were. It further concluded that several infirmities plagued the

amendments and petition and that the Commission’s decision to place the petition on the

ballot should be reversed. In relevant part, the court’s general conclusions were as follows:

4. The Court agrees with the Metropolitan Government that 4GG’s Petition

did not meet the “prescribe a date” requirement under § 19.01 of the

Metropolitan Charter.

5. The Court agrees with the Metropolitan Government that the “Abolish

Lifetime or Other Benefits for Elected Officials” measure and the “Protect

Promises to Nashville” Amendments are defective in form, confusing to the

electorate, and properly subject to pre-election challenge on this ground.

6. The Court agrees with the Metropolitan Government that the “Limit

Property Tax Rates” Amendment and the “Protect Promise[s] to Nashville”

provision are defective in form and unconstitutional in form under City of

Memphis and 4GG-I.

7. The Court agrees with the Election Commission that certain of the

Metropolitan Government’s specific challenges to the Limit Property Tax

Rates Amendment, the Recall Elected Officials Amendment, Abolish

Lifetime or Other Benefits Amendment, or Protect Promises to Nashville

Amendment relate to substantive constitutionality and are, accordingly, not

ripe for pre-election challenge on those specific grounds.

8. The Court agrees with the Metropolitan Government on the severability

issue and concludes that none of the Amendments can properly be presented

to the qualified voters of Davidson County for referendum election on July

27, 2021.

Certain minor corrections in language were made to certain parts of the trial court’s order

in an “Order of Correction” entered on June 23, 2021, and the Commission thereafter filed

a notice of appeal in this Court on June 25, 2021.2

2

We observe that a separate notice of appeal was also filed in this Court on July 23, 2021, with

specific reference to the June 23, 2021, “Order of Correction.” Whereas a new appeal number was initially

assigned in connection with the second notice of appeal, we consolidated the matters into one appeal in a

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On June 29, 2021, the Commission filed a motion in this Court for “an expedited

briefing schedule and hearing,” while also filing a request with the Tennessee Supreme

Court that it assume jurisdiction over the appeal pursuant to Tennessee Supreme Court

Rule 48 and Tennessee Code Annotated section 16-3-201(d). Of note, four days before

this date, on the same day it filed its notice of appeal concerning the actions taken regarding

its decision to set an election for July 27, the Commission canceled the July 27 election. It

further conditionally reset the election to September 21, 2021. The Commission noted this

information in its motion before the Supreme Court, stating that the resetting had been

“conditioned on authorization from an appropriate court concluding that the Election

Commission acted appropriately in voting to place the proposed amendments on a ballot.”

For their part, the Metro Litigants argued against Supreme Court intervention and

submitted, among other things, that the action was moot:

Worse yet, after its loss at the trial court, the Election Commission

conditionally set the petition for another referendum election on September

21, 2021, far outside the 75- to 90-day timeframe required by state law. Thus,

the conditional September 21 referendum-election date not only fails to

provide a basis for expedited appeal, but it illustrates that this Court cannot

grant the relief requested by Appellant, rendering the case moot.

In an order dated July 9, 2021, the Supreme Court denied the motion to assume

jurisdiction, concluding that extraordinary action to assume jurisdiction was not warranted

in light of the “current totality of the circumstances, including the relevant timeline and the

procedural posture of this case.” (Tenn. July 9, 2021) (order denying motion to assume

jurisdiction). Thereafter, in an order filed July 13, 2021, this Court denied the

Commission’s request for an expedited briefing and hearing schedule.

ISSUES PRESENTED

In the present appeal, the trial court’s findings are vigorously disputed by the parties,

particularly those findings pertaining to “ripeness” under the City of Memphis decision.

The core of this threshold dispute among the parties is reflected in the marked divergence

in how the issues are framed in their appellate briefs. Whereas the Metro Litigants argue

that the trial court properly found several of the petition’s amendments to be defective in

“form” and thus subject to pre-election challenge, the Commission maintains that the trial

court actually relied on, impermissibly, “broad ‘as-applied’ substantive objections” to

block access to a referendum election.

The Commission’s brief specifically presents the following issues for review,

restated verbatim:

per curiam order filed on July 28, 2021.

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1. Whether, consistent with City of Memphis v. Shelby County Election

Commission, a county election commission may rely on substantive

constitutional issues in determining whether to place an otherwise-

qualifying charter-amendment petition on a referendum ballot and

whether the commission’s decision not to consider substantive

constitutional issues can be deemed arbitrary or capricious?

2. Whether, consistent with City of Memphis v. Shelby County Election

Commission, a court, before a referendum election, may, as the Trial

Court did, rely on “as-applied” (as distinct from “facial”) substantive

constitutional challenges of proposed charter amendments to stop an

election that a county election commission has approved and scheduled?

3. Whether, consistent with City of Memphis v. Shelby County Election

Commission, a court may validly characterize an “as-applied” challenge

to the substantive constitutionality/validity of proposed charter

amendments as a challenge to the “form” of the proposed charter

amendments, when a county election commission has approved those

proposed amendments for voter consideration?

4. Whether the Election Commission erred in its interpretation of the terms

of and remedy for a putative violation of the “prescribe-a-date” provision

of the Metro Charter?

5. Whether the Trial Court properly applied severability principles when it

held that valid proposed amendments may not be presented to voters if

even one of multiple, separate charter amendments proposed in a petition

is invalid?

6. Whether there is any material evidence in the record and a rational basis

to support the Election Commission’s decision to place the proposed

Charter amendments on the ballot?

The Metro Litigants, as the Appellees in this appeal, phrase the issues on appeal as follows:

1. Whether the Chancery Court correctly held that defects in 4 Good

Government’s petition to amend the Metropolitan Charter by referendum

election were ripe for judicial review under City of Memphis v. Shelby

Cty. Election Comm’n, 146 S.W.3d 531 (Tenn. 2004).

2. Whether the Chancery Court correctly held that the Charter amendment

petition failed to “prescribe a date” for the referendum election as

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required by Metropolitan Charter § 19.01 and thus could not be placed on

the ballot.

3. Whether the Chancery Court correctly held that proposed Charter

amendments 1 (“Limit Property Tax Rates”) and 6 (“Protect Promises to

Nashville”) are defective in form and precluded from the ballot because

they involve subject matter beyond the referendum power.

4. Whether the Chancery Court correctly held that proposed Charter

amendments 3 (“Abolish Lifetime or Other Benefits”) and 6 (“Protect

Promises to Nashville”) are defective in form and precluded from the

ballot because their language is vague and confusing such that a voter

could not ascertain the amendments’ meaning for purposes of casting an

intelligent vote.

5. Whether the Chancery Court correctly held that the defective proposed

Charter amendments are not severable from the rest, thereby requiring the

referendum election to be canceled.

The appeal has also prompted several interested groups to file briefs, with

permission of this Court, as amicus curiae. As is relevant to our discussion herein, we

observe that one of these groups, Save Nashville Now, contends that the appeal is moot, a

point also made in passing by the Metro Litigants’ brief. Another participating amicus

curiae, the Nashville Area Chamber of Commerce, has filed a brief in support of the trial

court’s decision relative to the “prescribe a date” provision in the Metro Charter.

DISCUSSION

The present appeal concerns the trial court’s review of the Commission’s action

under the common law writ of certiorari. The standard governing such review is well-

settled law:

Upon review, the court may reverse or modify the decision of an

administrative body or tribunal only upon determining that the action 1)

violated a statutory or constitutional provision; 2) was made in excess of the

agency’s authority; 3) was based on unlawful procedure; 4) was arbitrary or

capricious; or 5) was not supported by material evidence.

Dill v. City of Clarksville, 511 S.W.3d 1, 9 (Tenn. Ct. App. 2015). Whether a board or

tribunal acted illegally is a question of law, and with respect to appellate oversight, “[o]ur

standard of review is the same as that of the trial court.” Id.

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Rather than immediately turn to an examination of the merits of the raised

grievances concerning 4GG’s petition and the proposed Charter amendments, we must first

address the question of justiciability. “A case must remain justiciable through the entire

course of litigation, including any appeal.” Alliance for Native Am. Indian Rights in Tenn.,

Inc. v. Nicely, 182 S.W.3d 333, 338 (Tenn. Ct. App. 2005). If a case does not involve a

“genuine, continuing controversy requiring the adjudication of presently existing rights,”

it is not justiciable. Id. Here, the justiciability doctrine at issue is mootness. “A moot case

is one that has lost its justiciability because it no longer involves a present, ongoing

controversy.” Id. If a case no longer serves as a means to provide judicial relief to the

prevailing party, it will be considered moot. Id.

The foregoing consideration is especially relevant here in light of the request for

relief advanced by the Commission in the prayer of its brief. In pertinent part, the

Commission requests that this Court reverse the trial court and “remand the matter to the

Commission with instructions to schedule a referendum election at a date in the exercise

of its appropriate, statutory discretion pursuant to T.C.A. § 2-3-204(a).” As discussed in

more detail below, it is not possible for an election to occur within the time parameters

fixed by the cited statute, and therefore, we fail to see how we can order the Commission

to take an action not permitted by law.

However, before turning to that specific timing question, we find it prudent to recap

the posture in which this case presents itself. The present appeal relates to review of the

Commission’s decision to set an election on July 27, 2021 in reference to the proposed

Charter amendments. Specifically, the appeal is from a writ of certiorari proceeding in

which the trial court sustained the Metro Litigants’ challenge to the setting of that July 27

election. The trial court’s judgment was issued on June 22, 2021. Although it appears

from certain filings concerning this case that the State Coordinator of Elections had granted

a request to change the deadline to mail military and overseas ballots in reference to the

July 27 election date, the Commission did not take steps to secure expedited review with

the aim of holding an election on July 27 or at any point within the time frame allotted by

Tennessee Code Annotated section 2-3-204, a point that will be further elaborated upon

below. Instead, the Commission filed its appeal on June 25, 2021, albeit while also

cancelling the July 27 election setting on the same date. The Commission conditionally

reset the referendum election for September 21, 2021, and a few days later, on June 29,

2021, finally sought expedited review in this Court and in the Tennessee Supreme Court.3

The Commission’s request for expedited appellate oversight was clearly to facilitate the

proposed September 21, 2021 election date. The Tennessee Supreme Court declined to

assume jurisdiction, and we denied expedited review. The Supreme Court’s decision

referenced the “current totality of the circumstances, including the relevant timeline and

the procedural posture of this case.”

3

As discussed previously, the Commission requested that the Supreme Court assume jurisdiction

pursuant to Tennessee Supreme Court Rule 48 and Tennessee Code Annotated section 16-3-201(d).

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Based on our discussion below pertaining to the text of Tennessee Code Annotated

section 2-3-204, it is not immediately clear to us on what basis the Commission believed

the September date would be appropriate under that statute.4 In any event, that date has

obviously now passed without an election. According to a filing submitted by one of the

participating amicus curiae, Save Nashville Now, it had challenged the Commission’s

decision to schedule an election in September in a separate writ of certiorari proceeding.

According to Save Nashville Now’s submission, the Commission successfully moved to

dismiss that other litigation as moot, apparently arguing, among other things, that there was

no relief to be granted because the Commission had already stipulated that no election

would occur on September 21.

Of course, the Commission now ultimately desires instruction from this Court that

it may reset the election at a future date pursuant to Tennessee Code Annotated section 2-

3-204. As we have already alluded to, this is simply not possible. Tennessee Code

Annotated section 2-3-204 states in part as follows:

(a) Elections on questions submitted to the people shall be held on dates

set by the county election commission but not less than seventy-five (75)

days nor more than ninety (90) days after the county election

commission is directed to hold the election under the law authorizing or

requiring the election on the question. If the election is to be held in more

than one (1) county, the county election commissions shall meet and set the

date jointly.

....

(c) If the date for an election on a question, as set by a county election

commission or by two (2) or more commissions jointly, falls within ninety

(90) days of an upcoming regular primary or general election being held in

the jurisdiction voting on the question, the commission or commissions may

reset the date of the election on a question to coincide with the regular

primary or general election, even though this may be outside of the time

period established herein. All dates dependent on the date of the election shall

be adjusted accordingly and any acts required to be done by these dates shall

be performed timely if done in accordance with the adjusted dates.

4

According to materials submitted by Save Nashville Now, the Commission’s resolution to

conditionally reset the election to September had identified a permissible election window of September 8,

2021 through September 23, 2021. Again, although we fail to understand how the Commission believed

this to be appropriate, such an application of the window in Tennessee Code Annotated section 2-3-204

clearly appears to assume that the timeline was triggered on June 25, 2021, the date the Commission

cancelled the July 27 setting.

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Tenn. Code Ann. § 2-3-204 (emphases added).

At oral argument, when questioned how a future election setting could comply with

this statute, counsel for the Commission argued that it is the decision of this Court that

triggers the timeline for an election setting. Indeed, counsel specifically stated as follows:

“[I]t would be the Court that would be directing the Commission to hold the election and

the time frame would then be triggered by the court’s order.” Counsel then continued on,

stating, “If this Court undoes the order of the trial court . . . it would direct the Commission

to hold the election . . . pursuant to 2-3-204(a). And that’s when the timing would start.”

Respectfully, we disagree. Notably, we observe that a similar argument was offered by the

Commission in another case, one that specifically involved the interpretation of Tennessee

Code Annotated section 2-14-102(a). That statute governs the setting of special elections

for office vacancies and requires them to be held “not less than seventy-five (75) days nor

more than eighty (80) days after the officer or body charged with calling the election

receives notice of the facts requiring the call.” Tenn. Code Ann. § 2-14-102. In Wallace

v. Metropolitan Government of Nashville, 546 S.W.3d 47 (Tenn. 2018), the Commission

argued that the date of the Supreme Court’s ruling should be deemed “the date on which

‘the officer or body charged with calling the [special] election receives notice of the facts

requiring the call,’ thereby triggering the statutory time-frame for setting the special

election.” Id. at 58 n.14. The Supreme Court squarely rejected this argument, stating that

the suggestion was “tantamount to inviting us to judicially amend the statute.” Id. We

similarly decline the argument offered by the Commission here; we find no support for it

in the text of the statute.

As we understand the matter, the Commission was “directed to hold the election,”

see Tenn. Code Ann. § 2-3-204(a), when the Metropolitan Clerk certified a copy of the

petition containing the proposed amendments on May 6, 2021. Indeed, pursuant to the

Metro Charter, the duty to hold an election is contingent upon the Metropolitan Clerk

providing such a certified copy: “The metropolitan clerk shall immediately certify to the

county commissioners of election copy of such resolution or petition and it shall

thereupon be the duty of said commissioners of election to hold a referendum election

with respect thereto.” Metro Charter § 19.01 (emphasis added). Ninety days from May 6,

2021 was August 4, 2021. Whereas the prior July 27, 2021 election date at issue in the

trial court’s order undoubtedly fell within the permitted statutory time frame for the holding

of an election, the Commission canceled that election date and did not seek expedited

review so as to attempt to hold an election within the permitted time frame, whether on

July 27 or otherwise. Instead, it reset the election for September 21, 2021, a date that did

not fall within the time parameters of Tennessee Code Annotated section 2-3-204.

Logically, any future election date also would not fall within the statutorily-mandated time

for holding an election on referendum questions. We cannot, therefore, remand the matter

and order that the Commission set a date for an election on the amendments. The case is

accordingly moot given our inability to provide the requested relief sought by the

Commission. See Nicely, 182 S.W.3d at 338.

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Had the Commission sought expedited appellate review of a proposed election

within the time parameters of Tennessee Code Annotated section 2-3-204 instead of an

election date beyond the time permitted by the statute, no doubt, extremely prompt action

would have been required by this Court, or the Supreme Court. The appellate courts,

however, have given prompt attention to election matters before. See, e.g., Wallace, 546

S.W.3d at 51 (involving a request by the appellant, on the same date he filed his notice of

appeal, that the Supreme Court assume jurisdiction); City of Memphis, 146 S.W.3d at 533

n.1 (involving a case where the Supreme Court’s September 10, 2004 order gave the parties

mere days to brief the matter, with the opinion being quickly issued on September 15,

2004). The Commission did not meaningfully attempt to facilitate such a possibility,

however. Indeed, for whatever reason, it was not until a week after the trial court’s June

22, 2021 judgment that the Commission sought expedited review from this Court and the

Supreme Court. Moreover, as already noted, the Commission represented at that time its

intent to hold an election in September 2021, outside of the permitted time frame.

Although the Commission has offered argument that this Court has “remedial

authority” to give relief by ordering an election and invokes Rule 36 of the Tennessee Rules

of Appellate Procedure in support thereof, we disagree with its position. Rule 36 provides

that this Court shall “grant the relief on the law and facts to which the party is entitled or

the proceeding otherwise requires and may grant any relief, including the giving of any

judgment and making of any order.” Tenn. R. App. P. 36. We fail to see how this text

gives us a license to order an election inconsistent with the timing required by law. Indeed,

as we have noted, the statute places limits on when the election shall be held. Just as we

cannot endorse the Commission’s argument that our decision triggers the timeline for the

setting of an election, an argument which is an effective invitation to “judicially amend the

statute,” Wallace, 546 S.W.3d at 58 n.14, we cannot otherwise ignore what the clear

language of the statute requires.

Although the appeal is technically moot in light of our foregoing discussion, we

acknowledge that case law allows this Court, in its discretion, to conclude that exceptions

to the mootness doctrine exist. Among other reasons, we may conclude that issues are

deserving of consideration when the “public interest” militates in favor of addressing

disputed issues of great importance to the public and the administration of justice. Norma

Faye Pyles Lynch Family Purpose LLC v. Putnam Cty., 301 S.W.3d 196, 208 (Tenn. 2009).

To guide our discretion in deciding whether such a “public interest” exception is

applicable, we address the following threshold considerations:

(1) the public interest exception should not be invoked in cases affecting only

private rights and claims personal to the parties; (2) the public interest

exception should be invoked only with regard to “issues of great importance

to the public and the administration of justice”; (3) the public interest

exception should not be invoked if the issue is unlikely to arise in the

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future; and (4) the public interest exception should not be invoked if the

record is inadequate or if the issue has not been effectively addressed in the

earlier proceedings.

Id. at 210–11 (internal footnotes omitted). If the above considerations do not exclude the

invocation of the public interest exception to mootness, we then “balance the interests of

the parties, the public, and the courts to determine whether the issues in the case are

exceptional enough to address.” Id. at 211. As part of this balancing, we may consider,

among other things, the following:

(1) the assistance that a decision on the merits will provide to public officials

in the exercise of their duties, (2) the likelihood that the issue will recur under

similar conditions regardless of whether the same parties are involved, (3)

the degree of urgency in resolving the issue, (4) the costs and difficulties in

litigating the issue again, and (5) whether the issue is one of law, a mixed

question of law and fact, or heavily fact-dependent.

Id. (internal footnotes omitted).

Here, as a matter of public interest, the issue pertaining to the “prescribe a date”

provision from Metro Charter § 19.01 is worthy of current examination notwithstanding

the fact that the case is otherwise moot. The “prescribe a date” provision from Metro

Charter § 19.01 requires that a petition proposing amendments to the Charter “prescribe a

date not less than eighty (80) [days] subsequent to the date of its filing for the holding of a

referendum election at which the electorate of the metropolitan government will vote to

ratify or to reject the amendments proposed.” Metro Charter § 19.01. This provision is at

issue here due to the fact that 4GG’s petition to amend the Charter did not prescribe a single

date; rather, 4GG’s petition proposed for amendments “to be voted on by the citizens on

May 28, 2021 or June 14, 2021, whichever is earlier as permitted by Metro Charter §

19.01.” The trial court’s conclusion that 4GG’s petition ran afoul of the “prescribe a date”

provision is deserving of consideration for a number of reasons in our opinion. First, this

is not a matter that is confined to private rights and claims. Rather, the issue broadly

concerns the interest of the public at large and the manner in which citizens may amend

the Charter. We consider this to be a matter of great public interest, and this case provides

an opportunity to resolve this issue and avoid further protracted litigation on it in the future.

As should be evident from our ensuing discussion, there is obviously an incentive for

petitioners to not prescribe a single date in petitions to amend the Charter, and bringing

clarity as to the propriety (or lack thereof) of this practice is a worthy use of our judicial

resources. The general public interest in this provision is evidenced by, among other

things, the filing of an amicus brief on the issue by the Nashville Area Chamber of

Commerce.

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In addition to the above considerations, we note that there is nothing impeding our

review of the issue now, as there is no need for further development of a factual record. In

our view, the question before us is a legal one, namely whether the Charter does, in fact,

require citizens proposing Charter amendments to prescribe a single date in their petition.

Additionally, we are of the opinion that our examination of the issue now will provide

guidance to the Commission as to how it should carry out its duties moving forward. See

Norma Faye Pyles Lynch Family Purpose LLC, 301 S.W.3d at 211 (noting the relevance

of considering the assistance that a decision will provide to public officials). Finally, we

consider the concern that exists over the costs already incurred by the parties in this case

and the potential time difficulties5 that could accompany any future pre-election judicial

review.

Having found it appropriate to address the issue pertaining to the “prescribe a date”

provision, we now turn our attention to the heart of the matter. The trial court concluded

that the Commission had acted improperly by not finding it consequential that 4GG’s

petition did not “prescribe a date” as required under the Metro Charter. In relevant part,

the trial court correctly observed that 4GG’s petition had listed “two alternative dates” and

opined that “[l]egal prerequisites . . . must be met and the Election Commission’s failure

to insist that the ‘prescribe a date’ legal requirement be complied with as written is not

entitled to deference upon judicial review.” The trial court reasoned that the “prescribe a

date” requirement

1) sets the governing timeline; 2) permits the Election Commission to

determine whether the petition violates the prohibition on submitting a

petition to voters more than once every two years; 3) prevents backdoor

extensions of the deadline for obtaining signatures; 4) provides clarity for

potential signatures; and 5) consistent with fairness, notifies potential

opponents, in advance of the petition’s filing, what the Petition prescribes as

the election date for purposes of a potential counter-campaign.

The Commission takes umbrage at the trial court’s interpretation of the “prescribe

a date” provision, even initially arguing that 4GG’s petition was compliant with the Charter

requirement. According to the Commission, 4GG’s petition permissibly proposed

“alternate dates” but with “a clear decision rule about which of the alternative dates

controls.” The trial court’s insistence on a single date, it submits, reads an emphasis into

the provision that “does not appear in the text.” Indeed, the Commission argues that “[t]he

Trial Court read the provision as if the word ‘a’ were underlined and bolded.” True enough,

5

Parties, of course, should pursue every available procedural means, with expediency, to timely

seek judicial review, whether at the trial or appellate level, when there are time-sensitive election matters

at stake. Of note, according to the submission of Save Nashville Now, the Commission apparently argued,

in the context of the writ of certiorari proceeding relative to the setting of the September 2021 election date,

that sufficient time exists for a judicial challenge once a referendum is set under Tennessee Code Annotated

section 2-3-204.

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the word “a,” as utilized in the phrase “a date” in Metro Charter § 19.01, is neither

underlined nor bolded, but we fail to see how that in any way changes the fact that the

“prescribe a date” provision textually demands a single date. Indeed, the language simply

is what it is, and here, the controlling language provides that the petition “shall . . . prescribe

a date not less than eighty (80) [days] subsequent to the date of its filing for the holding of

a referendum election.” Metro Charter § 19.01 (emphasis added). Thus, it is clear: in order

to be compliant with the Charter’s requirements, the petition “shall” prescribe “a date.”

This language and its accompanying context contemplate a single date, not multiple dates

accompanied by a “decision rule.”

The Commission argues, however, that the importance of a single prescribed date is

not what it seems, apparently in an attempt to repudiate the notion that a single prescribed

date is, in fact, demanded. Pointing to Tennessee Code Annotated section 2-3-204(a), the

Commission observes that it ultimately is responsible for the setting of an election date.

Based on our prior discussion in this Opinion pertaining to the text of Tennessee Code

Annotated section 2-3-204(a), we obviously will not quibble with the argument that the

date prescribed in a referendum petition does not absolutely control when a referendum

election will occur. That said, this does not mean that the requirement to prescribe a date

is itself somehow advisory or lacks importance. It is a requirement per the text, not a

suggestion; indeed, the text mandates that “a date” be prescribed, and that date affects, as

the trial court recognized, the deadline for complying with another “form” requirement

incident to submitting a referendum petition to an election. Consider the practical interplay

between the following two requirements that must be adhered to when attempting to amend

the Charter. First, although the Charter can be amended “upon petition,” the petition must

be “signed by ten (10) per cent of the number of the registered voters of Nashville-

Davidson County voting in the preceding general election.” Metro Charter § 19.01.

Moreover, as already discussed in connection with this issue, the petition “shall also

prescribe a date not less than eighty (80) [days] subsequent to the date of its filing for the

holding of a referendum election.” Id. Given the latter mandate to prescribe “a date” and

the temporal marker associated therewith, the Charter effectively requires that, in order to

be sufficient, petitions to amend it must have garnered the requisite number of signatures

at least eighty days prior to the prescribed date.

To ignore the plain language connected to the “prescribe a date” requirement from

the Charter, of course, would completely eviscerate this deadline. As the Nashville Area

Chamber of Commerce has argued on appeal:

[A]llowing petitioners to prescribe multiple dates on a petition means that

there is no actual deadline for gathering signatures at all, because if

petitioners can simply reserve multiple backup election dates, then

petitioners may unilaterally extend their signature deadline and rely on

backup dates indefinitely until a sufficient number of signatures has been

secured.

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The “prescribe a date” requirement therefore does “prevent[] backdoor extensions of the

deadline for obtaining signatures,” as the trial court noted, and also “provides clarity for

potential signatures.” Without knowing this deadline, citizens will not know the period in

which support or opposition to a signature campaign needs to be mounted.6

6

As far as notice is concerned, the trial court also decided, as already outlined, that “consistent with

fairness, [the “prescribe a date” requirement] notifies potential opponents, in advance of the petition’s filing,

what the Petition prescribes as the election date for purposes of a potential counter-campaign.” The

Nashville Area Chamber of Commerce emphasizes the importance of this consideration in its amicus brief,

arguing that permitting the reservation of multiple potential dates

would also give proponents of a petition a seriously unfair advantage over their

opponents regarding an election itself, given that it would enable petitioners—and only

petitioners—to know when an election will be held. Petitioners alone control when their

signatures are filed with the Metro Clerk. Thus, by prescribing two or more election dates

on a petition—the Election Commission’s “clear decision rule” proposal would allow

petitioners to prescribe hundreds of potential dates if they wished—and then indicating that

the election will be held on “whichever [date] is earlier as permitted by Metro Charter §

19.01,” petitioners alone can control the date of a referendum election based strictly upon

the date when they file their signatures.

Thus, regardless of how many dates a petition prescribes, petitioners (and

petitioners alone) will know—in advance of filing—when an election will be held, because

petitioners alone will know when they intend to file their petition with the Metro Clerk.

By contrast, opponents of a petition—who have no way of knowing or controlling when a

petition will be filed—will necessarily be left to guess the date of the election until the

moment that petitioners file their signatures with the Metro Clerk.

The unfair advantage that such superior knowledge affords petitioners

cannot be overstated. For example, it would allow petitioners—and only petitioners—to

buy, in advance of filing their signatures with the Metro Clerk, the bulk of prime

advertising spots “during the pivotal final days before the election,” Tennesseans for

Sensible Election Laws v. Tennessee Bureau of Ethics & Campaign Fin., No. M2018-

01967-COA-R3-CV, 2019 WL 6770481, at *20 (Tenn. Ct. App. Dec. 12, 2019)—or even

the critical “weeks immediately before” an election, see Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 334 (2010)—because only they will know in advance of filing

when Election Day will be. Id. (“It is well known that the public begins to concentrate on

elections only in the weeks immediately before they are held. There are short timeframes

in which speech can have influence.”).

(internal footnote omitted).

Although the notice given by the prescribed date is not necessarily exact in reference to the actual

date of an election given the authority of the Commission to set the election date within the window

provided for in Tennessee Code Annotated section 2-3-204, the above cited concerns by the Chamber of

Commerce are certainly still real ones. Of course, regardless of this consideration, we have already noted

how the “prescribe a date” requirement affects the timeline for actually obtaining signatures.

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Although the Commission appears to argue in its brief that it is entitled to deference

as to its belief that alternative dates can satisfy the “prescribe a date” requirement, we

disagree. In the previously-discussed Wallace decision, the Supreme Court noted that

“principles of statutory construction guide us in our interpretation of the Charter.” Wallace,

546 S.W.3d at 52. In further stating that its review of a particular provision of the Charter

was “without any deference to the interpretations of the Commission,” id., the Supreme

Court explained in relevant part as follows:

This is not a case in which an administrative agency has construed and

applied its own rules or policies. The issue in this case is the proper

construction of a provision of the Charter. . . . To the extent that the

Commission’s interpretation of the Charter is akin to an agency’s

interpretation of its controlling statutes, we are not bound by that

interpretation, particularly where the controlling statute is not ambiguous.

The Commission’s interpretation of the Charter is certainly entitled to our

respect; however, it is not entitled to our deference.

Id. at 52 n.7 (internal citation omitted). As we have already explained, the language of the

Charter here is clear: a petition seeking to amend the Charter “shall” prescribe “a date.”

Metro Charter § 19.01. This is a requirement that must be met per the language in the

Charter. Further, although it is true that an ensuing election date might not actually

coincide with the date a petition prescribes due to the authority given to the Commission

by general state law, the prescribed date is in no way meaningless as more or less suggested

by the Commission. Indeed, as we have noted herein, given the signature requirement that

exists under Metro Charter § 19.01, the prescribed date in effect dictates the governing

deadline by which supporters of a referendum measure must obtain the requisite number

of signatures to warrant holding a referendum election. We agree with the trial court that

the petition here was invalid given the petitioners’ failure to prescribe a single date in

compliance with the Charter, and therefore, the Commission acted illegally in acting to set

an election with regard to the petition’s proposed amendments.

As to the issues directly connected to the proposed Charter amendments themselves,

we note initially that resolution of these remaining issues would not have been necessary

even if this appeal could have, at the outset, theoretically served as a means to provide the

Commission with relief. We make this observation given our conclusion above concerning

the “prescribe a date” provision from the Metro Charter. Indeed, given the petition’s failure

in form with respect to that requirement, the petition was, as the trial court recognized,

“invalid as a whole.” This is not to say that we would have been foreclosed from addressing

the remaining issues because of our holding concerning the “prescribe a date” provision if

this case otherwise presented a live controversy. It is simply to acknowledge that

addressing the remaining issues would have been unnecessary to the ultimate determination

of whether the proposed amendments should have been set for an election. In other words,

our opinion on the “prescribe a date” issue would have given us an occasion to pretermit

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any remaining concerns connected to the petition.7 That issue alone would have been

dispositive of resolving the propriety of the Commission’s action.

This initial observation notwithstanding, the question here is whether we should

address the remaining issues on appeal given the otherwise moot nature of the case. When

the Commission addressed the question of mootness in a filing before our Supreme Court

in support of its request for relief under Tennessee Supreme Court Rule 48 (an argument

which is incorporated by reference in its reply brief in this Court), it contended that the

“public interest” exception was applicable. As evidenced by our discussion above, we

certainly agree with the Commission on this point inasmuch as this appeal relates to the

“prescribe a date” provision, and our Opinion on this issue will hopefully assist the

Commission to evaluate the validity of any future referendum petition vis-à-vis the

“prescribe a date” requirement. We respectfully disagree, however, that the remaining

issues argued on appeal are appropriate for our consideration. As we perceive it, beyond

the fact that any opinion on these particular issues would be purely advisory, we can only

speculate that these same specific questions will manifest in the future. We therefore

exercise our discretion to abstain from any other appellate pronouncements given the

mootness of the case.

A threshold consideration guiding our discretion relative to the public interest

exception is whether an issue is unlikely to arise in the future. See Norma Faye Pyles

Lynch Family Purpose LLC, 301 S.W.3d at 210. Moreover, assuming this and other

threshold considerations do not exclude the invocation of the public interest exception, we

are permitted to consider, among other things, the likelihood that the issue will recur under

similar conditions and the degree of urgency in resolving the issue. Id. at 211. Here, any

utility in expressing an opinion on any of the specific proposed Charter amendments

presupposes that these matters will (a) again be an object of a future referendum petition

(b) timely garner sufficient citizen support to satisfy the Charter’s signature requirement,

(c) exist in substantially the same form, and (d) be the subject of a future pre-election

judicial challenge. In our view, assuming that all of these things will occur is unduly

speculative to warrant continued judicial involvement in a case that is otherwise moot.

7

In a somewhat similar vein, albeit for different reasons, it would have been unnecessary to address

the issues raised connected to the sixth proposed Charter amendment, the amendment labeled “Protect

Promises to Nashville,” even if this case were not moot. The trial court cited a number of reasons why this

amendment could not survive pre-election judicial review, but the Metro Litigants accurately observe that

not every one of these rulings was challenged in the Commission’s principal brief. Indeed, without

commenting on whether or not the trial court properly considered the specific issue pre-election or

otherwise accurately analyzed the issue, the trial court made findings regarding alleged violations of certain

statutes, including Tennessee Code Annotated section 9-21-125, that do not appear to be challenged in the

Commission’s initial brief. Argument was not offered on the matter by the Commission until its reply brief.

“Issues cannot be raised for the first time in a reply brief.” Tennison Bros., Inc. v. Thomas, 556 S.W.3d

697, 732 (Tenn. Ct. App. 2017). Very simply, the failure to challenge one basis for the court’s ruling

relative to the amendment results in waiver and can therefore pretermit the necessity of engaging with the

other trial court rationales that were properly challenged on appeal.

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“Our judicial heritage speaks to restraint in addressing issues when the parties do not have

a continuing, real, live, and substantial interest in the outcome,” and “as a general rule,

Tennessee’s appellate courts should dismiss appeals that have become moot regardless of

how appealing it may be to do otherwise.” Id. at 210. Here, we find that the remaining

issues presented involve several interesting academic questions, but the likelihood that

these same issues will materialize again, and in the same form, is but a guess. As noted

above, we can only speculate that these same amendments will again be the subject of a

future referendum petition. Citizens may be motivated to pursue the same referendum

efforts, or they may not be. Moreover, a future signature drive for a referendum petition

may garner enough signatures under the Charter, or it may not.8 Additionally, the particular

concerns that may animate future action by citizens could be different. Indeed, as time

changes, so too can one’s plans and goals, and a given referendum effort may itself be fixed

with a narrow temporal objective. As to this concern, it is of note that one of the

amendments that was at issue in this case—amendment one—specifically sought, among

other things, to affect fiscal years 2021-2022 and 2022-2023.

To summarize our discussion herein, this appeal cannot serve as a means to facilitate

the Commission’s prayed-for relief. Indeed, assuming arguendo that we were to find in

favor of the Commission on all issues, directing it to reset an election on the proposed

amendments for a future date would necessarily contravene the time parameters established

in Tennessee Code Annotated section 2-3-204. Nevertheless, given the clear legal concern

associated with the “prescribe a date” issue and the utility that addressing that matter would

have to evaluating the validity of any future petition to amend the Charter, we have

exercised our discretion to address that issue despite the mootness of the case. We have

also concluded, however, that the remaining issues pertaining to the proposed Charter

amendments should not be broached in this appeal. As discussed herein, we find it unduly

speculative that these same issues will manifest in the future, and we accordingly refrain

from offering any advisory opinion as to a hypothetical and uncertain course of events.9

8

The speculation that surrounds this consideration is of particular note in light of certain facts the

administrative record contains in reference to the present referendum petition. The petition to amend the

Charter was submitted on March 25, 2021. This submission of the petition, and its accompanying

signatures, therefore occurred on a date less than 80 days before the earlier of the alternative prescribed

dates in the petition. As we have opined herein, the Charter effectively requires that, in order to be

sufficient, petitions to amend it must have garnered the requisite number of signatures at least eighty days

prior to the prescribed date. Although not specifically discussed previously in this Opinion, as the issue

raised over it in the trial court was not pursued on appeal by any of the parties, 4GG’s petition was actually

circulated in two versions. Each version prescribed the same alternative dates for an election, but one

version proposed a filing date for March 8, 2021. Another version proposed a filing date by March 25,

2021. (The two versions also contained some other textual differences, albeit not in relation to the text of

the proposed amendments themselves). It thus appears 4GG intended to garner sufficient signatures by

March 8 in order to present a petition that would comply with the earlier of the alternative prescribed dates

for election. Of course, as already indicated, the petition and accompanying signatures ultimately were not

submitted until March 25.

9

We are of the opinion that similar concerns countenance against application of the “capable of

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CONCLUSION

Although the controversy over the case at issue is moot given our inability to

potentially provide the Commission with any relief, we have found there to be sufficient

public interest to warrant addressing the “prescribe a date” concern raised in this case. As

to that matter, we agree with the trial court that the Commission acted illegally in deciding

to hold a referendum election given the referendum petition’s failure to prescribe a single

date for an election. As to the remaining issues in this case, we find it appropriate to yield

to the general bar of restraint posed by the mootness doctrine and therefore refrain from

offering any advisory opinion on such matters, and the trial court’s judgment on those

issues is vacated.

s/ Arnold B. Goldin

ARNOLD B. GOLDIN, JUDGE

repetition yet evading review” exception to mootness that is also potentially available in a court’s discretion.

See Allen v. Lee, No. M2020-00918-COA-R3-CV, 2021 WL 2948775, at *3 (Tenn. Ct. App. July 14, 2021)

(noting that a mere possibility that an act might reoccur is not sufficient to invoke the exception).

Hypothetically assuming, however, that a future referendum petition submitted these same amendments to

the Commission and the Commission voted to set them for an election, there is obviously a concern that

any pre-election judicial review be expedited. That time constraints would exist, though, does not mean

that these questions should necessarily evade review. As discussed earlier, courts frequently act in

recognition of the time-sensitive nature of election matters when the posture of the case is appropriate that

it do so. As it relates to this point, and as discussed earlier, Save Nashville Now has represented that the

Commission apparently argued, in the context of the writ of certiorari proceeding relative to the setting of

the September 2021 election date, that sufficient time exists for a judicial challenge once a referendum is

set under Tennessee Code Annotated section 2-3-204. We agree with this sentiment in theory, at least to

the extent that litigation is expedited and the parameters of the Supreme Court’s City of Memphis decision

are properly adhered to in litigation. As alluded to in this Opinion, the City of Memphis decision is

instructive that the scope of pre-election judicial review is somewhat narrow. It does not, for instance,

permit consideration of a referendum measure’s substantive validity pre-election. See City of Memphis,

146 S.W.3d at 539-40; see also James D. Gordon, III, & David B. Magleby, Pre-Election Judicial Review

of Initiatives and Referendums, 64 Notre Dame L. Rev. 298, 307 (1989) (discussing how one problem

associated with pre-election review of substantive validity relates to the time pressure). Permissible topics

of inquiry, such as whether a referendum measure is in proper “form,” should not demand drawn-out

litigation; such topics should be able to be resolved in an expedient fashion if the courts, both trial and

appellate, are properly alerted to the associated time constraints that bear on the questions involved.

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