On November 24, 2005, immediately following the state appellate court's decision in the case, I wrote the following regarding Bailey v. Shelby County.
In 1994, over 80% of the voters of Shelby County -- this would be called a landslide -- voted in favor of a 2 term limit for county commissioners and the county mayor. This year, 3 county commissioners soon to be ineligible under that provision showed their voters the ultimate disrespect: they sued them. In response, the Tennessee Court of Appeals in Jackson this week, in the case of Bailey v. Shelby County, in a 2-1 decision has denied the voters their right under the Tennessee Constitution to establish their form of county government.
Article 7, section 1, of the Tennessee Constitution calls for the elections of specified officers for a county government and states that the General Assembly shall establish the qualifications of those officers. That section also permits the General Assembly to allow for alternate forms of county government, if such an alternate form is approved by the voters of that county in a referendum. In response to that, the General Assembly passed a law requiring voters establishing alternate charters to provide for, among other things, the "qualification for holding office."
The court ruled that the people don't have the right to establish those qualifications, and that the General Assembly violated the Constitution by delegating it to them. To the court, it seems, "alternate" means mostly like and dependent on the original.
In his dissent, Judge Frank Crawford argues, "It is somewhat ludicrous to say that the County can have a new form of government, but it is controlled by the old form of government that the new form replaces."
Ludicrous, indeed. Hopefully, the state Supreme Court will hear this case.
I am happy to say that the Supreme Court heard the case and got it right, though it seems to have thrown Knox County for a loop.
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