Does the 2019 Tennessee law that lets only Madison County voters recall school board members, by using a population bracket of 98,200 to 98,300, raise constitutional concerns?

Subject

Constitutionality of Population Bracket in 2019 Tenn. Pub. Acts, ch. 350

Plain-English summary

Public Chapter 350, enacted in 2019, added Tenn. Code Ann. § 49-2-213 to give the registered voters of certain counties the power to petition for an election to recall a member of the local school board. The new section was limited by population: it applies only in counties of at least 98,200 and no more than 98,300 by the 2010 census. As the bill's sponsor acknowledged, that bracket was designed to capture Madison County and only Madison County. The act includes a severability clause.

The AG concluded the law has serious constitutional problems. Tennessee's constitution restricts legislation that singles out one county for special treatment in three overlapping ways: Article I, Section 8 (equal protection), Article XI, Section 8 (the prohibition on suspending general laws or passing laws for individuals inconsistent with general laws), and Article XI, Section 9 (private or local legislation needs local approval). Population brackets do enjoy a presumption of constitutionality, but the presumption applies only when there is some rational basis, related to population, that justifies the variation from the generally applicable rule.

The opinion finds no such basis. Neither the text of Public Chapter 350 nor its legislative history offers a reason why Madison County is differently situated from any other Tennessee county on the question of school-board recall. In fact, the bill's sponsor argued in floor debate that the issue was statewide. Without that justification, Public Chapter 350 raises constitutional concerns under all three constitutional provisions.

The AG also addressed severability. A severability clause signals legislative intent that valid portions survive if other portions fall. But severing the population bracket here would convert a Madison-County-only law into a statewide law, which is the opposite of what the legislature intended. The Tennessee Supreme Court declined to do that in Hart v. City of Johnson City, and the AG predicted a similar court would decline here. So if the bracket is found invalid, the entire act probably falls with it.

Currency note

This opinion was issued in 2019. 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.

Common questions

What's wrong with a population bracket of "not less than 98,200 nor more than 98,300"?

That kind of narrow window is the textbook example of disguised local legislation. Population brackets work constitutionally when they actually correspond to some population-related characteristic the legislature is trying to address (size of school system, demand for particular services). When the bracket is so tight that only one county fits and there is no functional reason for that county to be the one, the bracket reads like a private act in disguise. The opinion cited prior AG analyses of Obion County (Op. 18-18) and Hamilton County (Op. 08-185) reaching the same conclusion.

What three constitutional provisions are at issue?

Article I, Section 8 is the Tennessee equal-protection clause; it requires legislative classifications to have a reasonable relationship to a legitimate state interest. Article XI, Section 8 prohibits "suspending any general law for the benefit of any particular individual" and "passing any law for the benefit of individuals inconsistent with the general laws of the land." Article XI, Section 9 prohibits legislation that is "private or local in form or effect" and applicable to a particular county or municipality unless it provides for local approval.

Why doesn't the severability clause save the rest of the law?

Because the constitutional defect is in the population bracket itself. If a court strikes the bracket, the remaining statutory text would create a statewide school-board recall procedure that the legislature never intended. The AG cited Hart v. City of Johnson City, where the Tennessee Supreme Court refused to sever a population classification because doing so would "creat[e] a population class of all 95 Tennessee counties in order to uphold the Act." Severance is not "judicial legislation."

What would make a population bracket constitutional?

The legislative record (or the face of the bill) needs to articulate a reason connected to population for the variation. As the opinion summarizes from prior AG analyses, "[i]f population is a rational basis for identifying and dealing effectively with specific target areas of the legislation, the population brackets should be justifiable." A bill that addresses, say, school-system size or transit corridors might supply that justification; a bill that just happens to draw a line that captures one county does not.

Background and statutory framework

The Tennessee Constitution's structural protections against special legislation reflect concerns dating to the 19th century about lawmakers passing custom legislation for favored political subdivisions. The combination of Article XI, Sections 8 and 9, and the equal-protection guarantee in Article I, Section 8, requires either statewide application or genuine local approval for laws that target particular counties or municipalities.

Population brackets emerged as a workaround. By framing legislation in terms of population thresholds, lawmakers can write rules that initially apply only to one county while preserving the formal possibility that other counties might one day grow into (or out of) the bracket. Tennessee courts will accept that workaround when there is some plausible connection between the regulated subject and population. They will reject it when the bracket is so narrow that other counties cannot reasonably enter it and when no population-related rationale is offered. Civil Serv. Merit Bd. v. Burson, the leading case, upheld a 300,000+ municipality threshold tied to a particular form of government because the threshold was "potentially applicable throughout the state." A 100-resident-wide bracket fits a different pattern entirely.

The opinion's careful walk through Article XI, Section 9 is also instructive. Even when courts have not struck down population-bracket legislation under that provision, they have done so where the bracket effectively names a single county. Knoxville's Community Development Corp. v. Knox County and Leech v. Wayne County are the two main cases the AG relies on for the proposition that a bracket designed to capture a single county is "designed to apply" only to that county and so falls under the ambit of Section 9.

Citations

• Tenn. Code Ann. § 49-2-213 (created by 2019 Tenn. Pub. Acts, ch. 350)
• 2019 Tenn. Pub. Acts, ch. 350, §§ 1, 2
• Tenn. Const. art. I, § 8; art. XI, §§ 8, 9
• Tenn. Att'y Gen. Op. 19-05 (Apr. 5, 2019)
• Tenn. Att'y Gen. Op. 18-10 (Mar. 14, 2018)
• Tenn. Att'y Gen. Op. 18-18 (Apr. 4, 2018)
• Tenn. Att'y Gen. Op. 08-185 (Dec. 12, 2008)
• Tenn. Att'y Gen. Op. 97-47 (Apr. 14, 1997)
• Civil Serv. Merit Bd. v. Burson, 816 S.W.2d 725 (Tenn. 1991)
• Doe v. Norris, 751 S.W.2d 834 (Tenn. 1988)
• Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997)
• Knoxville's Cmty. Dev. Corp. v. Knox Cty., 665 S.W.2d 704 (Tenn. 1984)
• Farris v. Blanton, 528 S.W.2d 549 (Tenn. 1975)
• Leech v. Wayne County, 588 S.W.2d 270 (Tenn. 1979)
• Lowe's Cos. v. Cardwell, 813 S.W.2d 428 (Tenn. 1991)
• Catlett v. State, 336 S.W.2d 8 (Tenn. 1960)
• Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2019/op19-18.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 25, 2019

Opinion No. 19-18

Constitutionality of Population Bracket in 2019 Tenn. Pub. Acts, ch. 350

Question
Does 2019 Tenn. Pub. Acts, ch. 350, which applies only to Madison County by means of a narrow population bracket, raise constitutional concerns?

Opinion
Yes.

ANALYSIS

Public Chapter 350 amends Tenn. Code Ann., title 49, ch. 2, part 2, to add a procedure that allows the registered voters of a county to petition for an election to recall a member of the local board of education. 2019 Tenn. Pub. Acts, ch. 350, § 1, codified at Tenn. Code Ann. § 49-2-213. But this new section "only applies in counties having a population of not less than ninety-eight thousand two hundred (98,200) nor more than ninety-eight thousand three hundred (98,300), according to the 2010 federal census or any subsequent federal census." Tenn. Code Ann. § 49-2-213(e). Because of this narrow population bracket, the recall procedure currently applies only to Madison County, as the legislature apparently intended it to do. See 2010 Census - Tennessee, U.S. Census Bureau; see also House Session B, Debate on S.B. 0185, 111th Gen. Assem., at 1:00:53 (May 1, 2019) (statement of Rep. Todd) (noting the population bracket "restricts [the bill] to Madison County only").

Public Chapter 350 also includes a severability clause: "If any provision of this act or its application to any person or circumstance is held invalid, then the invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to that end the provisions of this act shall be severable." 2019 Tenn. Pub. Acts, ch. 350, § 2.

A public act that applies only to a single county raises potential concern under three separate provisions of the Tennessee Constitution. Article I, section 8, generally provides for equal protection of the laws. See Civil Serv. Merit Bd. v. Burson, 816 S.W.2d 725, 730-32 (Tenn. 1991); Tenn. Att'y Gen. Op. 18-10 (Mar. 14, 2018). Article XI, section 8, prevents "suspend[ing] 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." And article XI, section 9, prohibits legislation that is "private or local in form or effect [and] applicable to a particular county or municipality" unless the legislation also depends on local approval. See Civil Serv. Merit Bd., 816 S.W.2d at 729 (alteration in original) (quoting Tenn. Const. art. XI, § 9); see also Farris v. Blanton, 528 S.W.2d 549, 551-52 (Tenn. 1975) (noting that section 9 applies to "legislation [that] was [not] designed to apply to any other county").

To pass muster under article I, section 8, and article XI, section 8, legislative classifications, including distinctions among counties based on population, must have "a reasonable relationship to a legitimate state interest." Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988). As this Office has explained on numerous occasions, legislative classifications based on population brackets do enjoy a presumption of constitutionality, but they must also be supported by some justification related to population. See Tenn. Att'y Gen. Op. 19-05 (Apr. 5, 2019) (collecting past opinions). Statutory population brackets

will be deemed constitutional as long as there is a reason relating specifically to differences in population that could possibly justify the variation from the generally applicable law. If population is a rational basis for identifying and dealing effectively with specific target areas of the legislation, the population brackets should be justifiable. But if there is no rational basis on which to justify the population bracket exemption at issue, it will be deemed unconstitutional.

Id. The legislation "need not, on its face, contain the reasons for a certain classification," Civil Serv. Merit Bd., 816 S.W.2d at 731; such classifications should be upheld if "any state of facts may reasonably be conceived to justify" the distinction. Riggs v. Burson, 941 S.W.2d 44, 53 (Tenn. 1997).

Neither the text of Public Chapter 350 nor its legislative history provides a rationale for the distinction it creates between Madison County and all other counties with respect to the recall of members of local boards of education. Nor is any rational basis for such a distinction readily apparent.

Absent a rational basis for the distinction between Madison County and all other counties, Public Chapter 350 raises constitutional concerns under article I, section 8, and article XI, section 8, of the Tennessee Constitution. See Knoxville's Cmty. Dev. Corp. v. Knox Cty., 665 S.W.2d 704, 705 (Tenn. 1984) (finding "no reason to justify the discriminatory classification" of a narrow population bracket); Tenn. Att'y Gen. Op. 18-18 (Apr. 4, 2018) (concluding legislation that applied only to Obion County by means of a narrow population bracket lacked any apparent rational basis and raised constitutional concerns); Tenn. Att'y Gen. Op. 08-185 (Dec. 12, 2008) (finding impermissible class legislation when a population bracket only included Hamilton County, and "there ha[d] been no subsequent amendments to the law exempting counties in other population brackets from the 'general' requirements . . . to suggest that it has ceased to be a law of general application").

Public Chapter 350 could also raise concerns under article XI, section 9, of the Tennessee Constitution, which prohibits legislation that is, in effect, applicable only to a particular county if the legislation does not provide for local approval. Public Chapter 350 applies only to Madison County currently and does not provide for local approval. Moreover, in contrast to other legislation that courts have held not to implicate article XI, section 9, the population bracket in Public Chapter 350 is so narrow that it is unlikely to ever apply to another county. See Civil Serv. Merit Bd., 816 S.W.2d at 729 (holding that legislation that applied only to municipalities with populations of at least 300,000 that did not have a mayor-aldermanic form of government was "potentially applicable throughout the state" and thus "not local in effect even though at the time of its passage it might have applied to [only one county]"). Public Chapter 350 does not establish a minimum threshold that other counties may ultimately reach, nor does it apply broadly to particular types of municipal governments; it instead appears to be "designed to apply" only to Madison County and to affect local matters there, i.e. the recall of a member of the local board of education. Farris, 528 S.W.2d at 552. Accordingly, Public Chapter 350 raises constitutional concerns under article XI, section 9. See Leech v. Wayne County, 588 S.W.2d 270, 274 (Tenn. 1979); Tenn. Att'y Gen. Op. 18-18; Tenn. Att'y Gen. Op. 97-47 (Apr. 14, 1997).

"The inclusion of a severability clause in [a] statute has been held . . . to evidence an intent on the part of the legislature to have the valid parts of the statute enforced if some other portion of the statute has been declared unconstitutional." Lowe's Cos. v. Cardwell, 813 S.W.2d 428, 431 (Tenn. 1991) (citing Catlett v. State, 336 S.W.2d 8 (Tenn. 1960)). Generally, "a court may, under appropriate circumstances and in keeping with the expressed intent of a legislative body, elide an unconstitutional portion of a statute and find the remaining provisions to be constitutional and effective." Id. at 430. But if an unconstitutional portion of a statute is "so interwoven with other portions" of the statute that the legislature would not have passed the law without that portion, the entire statute will be held unconstitutional. Hart v. City of Johnson City, 801 S.W.2d 512, 518 (Tenn. 1990) (internal quotation marks omitted).

Here, if a court determines the population bracket in Public Chapter 350 to be unconstitutional, the severability clause in the act would most likely not save the whole act from being declared unconstitutional. Severing the population bracket that was designed to include only Madison County would transform a law that applies only to one county into a law that applies to every county in Tennessee. Because that result is directly contrary to the intent of the legislature, a court would most likely decline to engage in "judicial legislation" by severing the population bracket. See Hart, 801 S.W.2d at 518 (internal quotation marks omitted). Confronted with a similar question in Hart, the Tennessee Supreme Court declined to sever the population classifications from the act at issue. To do so, it explained, would have "creat[ed] a population class of all 95 Tennessee counties in order to uphold the Act, . . . including 81 counties which were expressly excluded from the Act by their elected representatives." Id.

HERBERT H. SLATERY III
Attorney General and Reporter

Requested by:
The Honorable Raumesh Akbari
State Senator
425 5th Avenue North
Suite 764, Cordell Hull Bldg.
Nashville, TN 37243

Footnotes:
1 Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=CF.
2 During discussion on the bill, some legislators noted that some counties already provide a procedure for recalling members of local school boards of education in their charters. See House Session, Debate on S.B. 0185, 111th Gen. Assem., at 2:25:16-54 (Apr. 30, 2019) (statement of Rep. Todd). But the bill's sponsor also recognized that most counties do not have such a procedure, and the discussion of the bill in the General Assembly does not suggest a reason that Madison County is differently situated than all other counties in Tennessee. Indeed, the bill's sponsor indicated that the problem addressed by the bill was not limited to Madison County and argued that the provisions of the bill should have statewide application for that reason. See House Session A, Debate on S.B. 0185, 111th Gen. Assemb., at 40:17 (May 1, 2019) (statement of Rep. Todd).