Can the Tennessee legislature let a small water utility district hold a popular election for its commissioners by writing a population-bracket bill?

Subject

Opinion No. 13-22, Election of Utility District Commissioners, March 18, 2013

Plain-English summary

Senator Ken Yager asked whether SB513, which used a narrow population bracket to single out one water utility district and require its commissioners be elected by a plurality vote of customers, violated the Tennessee Constitution's general-law clause. Article XI, section 8 prohibits the legislature from "suspending any general law for the benefit of any particular individual" or passing "any law for the benefit of individuals inconsistent with the general laws of the land."

The AG concluded SB513 did not violate that provision. The reason is that the underlying general law, Tenn. Code Ann. § 7-82-307, already builds in the flexibility SB513 used. Subsection (a)(2)(B), enacted in 2012, contemplates that some single-county utility districts will be selected by a plurality vote of customers (those that were doing so on July 1, 2011) and expressly grants the General Assembly authority to approve customer-plurality voting for other single-county districts as well. SB513 was doing what § 7-82-307(a)(2)(B) said the legislature could do, so it was not "suspending" a general law; it was operating within an exception that the general law itself authorized.

Article XI, section 8 only applies, under Riggs v. Burson, when a statute contravenes some general law that has mandatory statewide application. Section 7-82-307 created a framework, but it did not require that every single-county utility district use the same selection method. The statute set out a default (appointment by county mayor) and then provided exceptions (popular vote for certain pre-2011 districts, and any additional districts the General Assembly might add). SB513 added one of those additional districts. That's the kind of statute the general law itself anticipated, so the constitutional bar against suspending general law did not apply.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tenn. Code Ann. § 7-82-307 has been amended several times since 2013. The structural point in this opinion (that a general law can authorize tailored deviations and a population-bracket bill that fits within that authorization is not "suspending" the general law) remains good doctrine, but the specific subsection numbering and rules for utility district selection should be checked against the current version of the statute.

Background and statutory framework

Utility districts in Tennessee are political subdivisions created under Title 7, chapter 82 of the Tennessee Code to provide water, sewer, gas, or similar services. They are governed by boards of commissioners. Tenn. Code Ann. § 7-82-307 governs how those commissioners are chosen.

In 2012, the General Assembly rewrote subsection (a) of § 7-82-307 to create a more uniform statewide framework. As amended, the default rule is that single-county utility districts are governed by commissioners appointed by the county mayor from a list of nominees. But subsection (a)(2)(B) carves out two exceptions:

1. Pre-2011 customer-vote districts. A single-county utility district that selected commissioners by a plurality vote of customers as of July 1, 2011 must continue using that method.

2. Districts approved by the General Assembly. Other single-county districts may use the plurality-vote method if the General Assembly approves it.

Subsection (a)(7) declares the General Assembly's intent to create a "uniform general law of statewide application" for selecting utility district commissioners.

SB513 invoked the second exception. It described a particular water utility district by reference to two parameters (under 1,600 customers, located in a county with a population between 41,800 and 41,900 under the 2010 census). That description picked out one specific district. The bill provided that this district's commissioners would be elected by a plurality vote of customers.

The general-law clause in article XI, section 8 forbids the legislature from passing a special law that suspends a general law. Under Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997), the clause is triggered only when the special statute contravenes a general law with mandatory statewide application. Because § 7-82-307 was not mandatory in this way (it expressly allowed legislative approval of customer-vote selection), SB513 did not contravene it. SB513 was an exercise of the very authority § 7-82-307(a)(2)(B) gave the legislature.

The opinion noted that population-bracket bills like SB513 are a common tool in Tennessee, particularly for tailoring local government rules to one or two counties. They survive article XI, section 8 challenges when the underlying general law leaves room for them. Where the general law instead imposes a mandatory uniform rule, a population-bracket carve-out would fail.

Common questions

What is a population-bracket bill?

A Tennessee bill that defines its scope by reference to a narrow population range, often matching exactly one county. The bill technically applies generally to any county in that range, but in practice the range was chosen so only one county fits. Population-bracket bills are a workaround for the constitutional rule against private or local legislation.

Why doesn't a population-bracket bill automatically violate the general-law clause?

Because the clause prohibits suspending a general law, not enacting a local rule. If the general law has built-in flexibility for local variation (as § 7-82-307 did), a population-bracket bill that operates within that flexibility is not "suspending" anything. If the general law instead imposes a uniform statewide rule with no exceptions, a population-bracket bill that contradicts it would likely fail.

What was the default rule the SB513 district would have been subject to if SB513 had not passed?

Appointment of commissioners by the county mayor from a list of nominees. The mayor would have picked the commissioners under § 7-82-307(a)(4).

Does this opinion mean any small utility district can switch to customer-plurality voting?

No. The opinion turned on the legislature specifically approving the switch in SB513. The general law required either (1) being on the customer-vote method since July 1, 2011, or (2) legislative approval. SB513 supplied the legislative approval for this one district. A district that wanted to switch without a new bill would have to fit within the July 1, 2011 grandfathering provision.

Could a utility district board change its own selection method?

Under § 7-82-307(a)(9), the board of certain utility districts (those exempt from mayor-appointment under (a)(2)) could submit a resolution to the utility management review board to change to mayor-appointment under (a)(4) or (a)(5). The reverse (moving from mayor-appointment to customer-vote) generally required legislative action.

Citations

Tenn. Code Ann. § 7-82-307 (especially subsections (a)(2)(B), (a)(4), (a)(7), (a)(9)); Tenn. Const. art. XI, § 8 (general-law clause); Riggs v. Burson, 941 S.W.2d 44, 78 (Tenn. 1997), cert. denied, 522 U.S. 982 (1998); 2012 Tenn. Pub. Acts, ch. 538, § 1.

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-022.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

March 18, 2013

Opinion No. 13-22

Election of Utility District Commissioners

QUESTION

Does the provision of Senate Bill 513/House Bill 691 of the 108th Tennessee General Assembly, Sess. 1 (2013) (hereinafter "SB513"), which provides that commissioners of a water utility district in a county within a narrow population bracket must be elected by a plurality of the customers of the district, violate article XI, section 8, of the Tennessee Constitution by unlawfully suspending a general law?

OPINION

No. Pursuant to Tenn. Code Ann. § 7-82-307(a)(2), commissioners in single-county and multi-county utility districts selected by a plurality vote of customers as of July 1, 2011, will continue to be selected by that method and the General Assembly is authorized to approve this method of selection for other utility districts. For this reason, SB513, if enacted into law as currently proposed, would not violate article XI, Section 8, of the Tennessee Constitution by unlawfully suspending a general law.

ANALYSIS

SB513 states, in relevant part, that any water utility district having less than 1,600 customers in any county with a population of not less than 41,800 nor more than 41,900 under the 2010 census or any subsequent federal census is to be governed by a five-member board of commissioners elected by a plurality vote of the customers of the utility district.

The election of utility district commissioners is governed by Tenn. Code Ann. § 7-82-307. Subsection (a) of this provision was rewritten in 2012, to be effective on January 1, 2013. 2012 Tenn. Pub. Acts, ch. 538, § 1. This statute now provides in pertinent part:

(A) Each utility district shall select board members using the selection method set forth in subdivisions (a)(4) or (a)(5).

(B) The commissioners of any single-county utility district using a selection method other than appointment by a county mayor as provided in subdivision (a)(4) on May 6, 2004, shall be appointed by the county mayor unless, on July 1, 2011, or hereafter approved by the general assembly, the selection method used by a single county utility district is a plurality vote of customers of the utility district voting in an election held by the utility district or the single-county district is located in a county with a metropolitan form of government and the selection method is by appointment by a county probate judge.

Tenn. Code Ann. § 7-82-307(a)(2)(A) & (B) (emphasis added). The term "single-county utility district" refers to a utility district with a service area located in only one county. A multi-county utility district has a service area in more than one county and is generally incorporated under Tenn. Code Ann. §§ 7-82-601 to -609.

The General Assembly's intent was to create a uniform general law for filling vacancies on a utility district board. The statute provides in this regard that:

The method of filling vacancies set forth in subdivisions (a)(2), (4) and (5) is the uniform method created by the legislature for the filling of vacancies on a utility district board of commissioners. It is the legislature's intent to create a uniform general law of statewide application for selecting utility district commissioners.

Tenn. Code Ann. § 7-82-307(a)(7) (emphasis added).

The question posed is whether, in light of Tenn. Code Ann. § 7-82-307(a)(7), the provision of SB513 providing for the popular election of utility district commissioners in certain utility districts violates article XI, Section 8, of the Tennessee Constitution. This section provides in relevant part:

General laws only to be passed. — The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with 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, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.

Tenn. Const. art. XI, § 8 (emphasis added). In order to trigger application of article XI, section 8, a statute must contravene some general law that has mandatory statewide application. Riggs v. Burson, 941 S.W.2d 44, 78 (Tenn.), cert. denied, 522 U.S. 982.

In this case, Tenn. Code Ann. § 7-82-307, while creating a law of statewide application for selecting utility district commissioners, does not dictate that all utility districts must follow a single method of selecting commissioners. Commissioners in single-county utility districts will generally be selected by the county mayor from a list of nominees. Tenn. Code Ann. § 7-82-307(a)(4). But single-county utility districts electing commissioners by a plurality vote of customers as of July 1, 2011 must continue to do so even after the effective date of 2012 Tenn. Pub. Acts, ch. 538. Tenn. Code Ann. § 7-82-307(a)(2)(B). Further, Tenn. Code Ann. § 7-82-307(a)(2)(B) expressly authorizes the General Assembly to allow other utility single-county districts to use this method of selecting directors, which is exactly what SB513 seeks to accomplish. Additionally, utility district commissioners in a single-county utility district located in a county with a metropolitan form of government and whose method of selection as of July 1, 2011 was by a county probate judge will continue to be selected by that method. For this reason, SB513, if enacted into law as proposed, would not violate article XI, section 8, of the Tennessee Constitution by unlawfully suspending a general law. Id.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Ken Yager
State Senator
6 Legislative Plaza
Nashville, Tennessee 37243-0212