ELECTRONICALLY FILED 2016 Nov 28 PM 2:58 (CLERK OF COURT - CHANCERY IN THE CHANCERY COURT FOR SHELBY COUNTY, TENNESSEE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS SONS OF CONFEDERATE VETERANS NATHAN BEDFORD FORREST CAMP #215, Plaintiff, % Case No. CH-13-0785-3 CITY OF MEMPHIS AND MEMPHIS CITY COUNCIL, Defendants, PLAINTIFF'S RESPONSE TO CITY’S MOTION FOR SUMMARY JUDGMENT. Plaintiff, Sons of Confederate Veterans Nathan Bedford Forrest Camp #215 (“SCV Camp #215”) submits this memorandum in opposition to the City’s Motion for Summary Judgment and requests that summary judgment be granted in its favor! 1 FACTS ‘The material facts in this case are not in dispute ~ even if there is a disagreement on how the facts in this matter should be interpreted. In 1899 the City of Memphis, by ordinance, named a park “Bedford Forrest Park.” On April 25, 2000, the City of Memphis and Memphis City Council passed an ordinance stating that the division of park services “shall henceforth have complete and full control and management over all parks”, the jurisdiction and control over all parks is “rescinded and such jurisdiction, control and authority shall be transferred to and shall be vested in the division of park services”, "SCV Camp #215 filed its Motion for Summary Judgment on June 3, 2016. On August 30, 2016, the City filed its ‘counter motion for summary judgment, requesting that the Court deny Plaintif’s motion for summary judgment and ‘grant summary judgment to the City. /As many of the facts and legal arguments in the City’s Motion for Summary Judgment were based on the arguments in Plaintiff's Motion for Summary Judgment, the Plaintiff relies upon and incorporates by reference the facts and arguments stated in its Memorandum of Lavr in Support of Plaintiff's Motion for Summary Judgment and the Statement of Uneontroverted Facts in Support of Plaintiff's Motion for Summary Judgmentand “The Memphis City Council may at any time emend, modify or eliminate, by appropriate ordinances duly adopted, the authority, composition or existence of the parks committee)” Memphis City Ordinance No. 4763 (“Park Services Ordinance”. On February 5, 2013, the City Couneil of Memphis passed the “Resolution Naming and Renaming Nathan Bedford Forest [sic] Park, Confederate Park, and Jefferson Davis Park” (Renaming Resolution”) on the first reading, ‘The only issue in this ease is whether or not the: Renaming Resolution is valid. ARGUMENT ‘The substantive arguments in this case concern complex analysis and interpretations of Charter provisions, statutes, and ordinances, but the fundamental issue is simple, The City’s argument boils down to the assertion that the City Council can do whatever it wants with ‘Memphis? parks. Plaintiff, however, argues for the application of limits on the Couneil’s powers that have to do with classic principles of American government such as the separation of powers and the requirements of due process. Plaintiff wanted the opportunity to have their voices heard. The City Council violated legislative procedure in order to circumvent State authority, denying Plaintiff a hearing in the process. ‘The procedure mandated by the City’s Charter for the passage of Ordinances would have given Plaintiff ample time to voice its opposition to the Couneil’s actions. No ordinances shall become effective until the same shall have passed at least three regular meetings of the Boatd of Commissioners, and shall have received at such meeting a majority vote of all of the members composing said board, and unless the same shall have been published in some newspaper circulated in Memphis, Tennessee, by one publication, the same to take place between the date of first and second readings of each ordinance, Memphis City Charter, Article 40, Sec. 354, These three parks are collectively refered to asthe “historic parks” 2Rather than follow this procedure, however, the City Council foreed their action through by passing it as a mere resolution, giving it only a single reading. The City Council's expressed reason for the Renaming Resolution was to circumvent the authority of the State of Tennessee. The Preamble of the Renaming Resolution states, WHEREAS the Tennessee Heritage Protection Act of 2013 [then pending in the Tennessee State House] would forbid the City of Memphis, a home rule municipality, from relocating, removing, altering, renaming or rededicating, or otherwise disturbing and “statue, monument, memorial, nameplate or plaque” in Confederate Park, Jefferson Davis Park, and Nathan Bedford Forest [sic] Park; and WHEREAS, if the City does not take action with respect to these three parks, the City of Memphis may lose the ability at these three parks to honor any citizens who have (or may in the future) serve this community in some exceptional way. .. Renaming Resolution, Preamble, In other words, the City Council sought to do an end-run around State authority on the grounds that Memphis is a Home Rule municipality. This flies in the face of the very Constitutional Provision that ereates the rights of a Home Rule municipality ‘Any municipality after adopting home rule may continue to operate under its existing charter, or amend the same, or adopt and thereafter amend a new charter to provide for its governmental and proprietary powers, duties and functions, and for the form, structure, personne! and organization of its government, provided that no charter provision except with respect to compensation of municipal personnel shall be effective if inconsistent with any general act of the General Assembly... ‘Tenn. Const. Art. XI, Sec. 9 (emphasis added); See also County of Shelby v. MeWherter, 936 $.W.2d 923, 933-34 (Tenn. Ct. App. 1996), City of Memphis v. Shelby Cnty., 469 S.W.3d 931, S41 (Tenn. Ct. App. 2015). Byen s0, while the Tennessee Heritage Protection Act was still pending, the City of Memphis could have acted according to proper procedures to rename the Parks at issue, In their haste to preempt the rightful authority of the State, however, they threw out proper procedures,Accordingly, Plaintiffs request that this Court rule that the Renaming Resolution is ultra vires on the grounds that () the City Council improperly acted by resolution instead of by ordinance, and (Il) the Renaming Resolution violated the division between the Legislative and Executive powers of the City of Memphis enshrined in the City Charter. A. The City Council unlawfully sought to change the name of the historic parks by resolution instead of by ordinance. ‘There is a clear definition of what procedure is required to pass an Ordinance, and the City Council acknowledges that they did not follow this procedure. In their defense, the City cites certain provisions of the Park Services Ordinance, which state that certain directions may be given to the Division by the City Council “by resolution or ordinance.” ‘Though there is little guidance as to the distinction between resolutions and ordinances in the laws of the City of Memphis, the General Assembly and the Courts of the State of Tennessee have given clear guidance on when an Ordinance must be used: (A) Any permanent action must be accomplished by ordinance and (B) any repeal of an existing ordinance must be accomplished by a measure of equal dignity (Le, not by a mere resolution). 1, Tenn, Code Amn. § 6-54-512 requires that all permanent actions by a City Council be enacted by ordinance, Tennessee Code Annotated § 6-54-512 lays out which actions are to be performed by an ordinance. It states: The following actions of the governing body of a municipality shall be by ‘ordinance unless otherwise allowed by general law to be done by resolution: (1) Any action required by general law or the charter of a municipality to be by ordinance; ot (2) Any action that (A) Levies a tax; (B) Makes a special assessment; (C) Is permanent in nature; ot 4(D) Has a regulatory or penal effect. ‘Tenn, Code Ann, § 6-5-512, The Renaming Resolution is permanent in nature, and clearly violates provision (2)(C) of this law. It makes no provision for a timeframe during which the Renaming Resolution is meant to apply, nor is the Renaming Resolution of such a nature as to be temporary in itself (as when the City Charter authorizes the setting of the dates of meetings by Resolution). In their Memorandum in Support of Summary Judgment, Defendants allege that different provision of the Code - Tenn. Code Ann. § 6-20-215° - is inapplicable to this case because it applies only to cities with a City Manager-Commission Charter.‘ This is allegedly indicated in that statue by the language “Any city incorporated under chapters 18-22 of this title may...” Such language does not appear in Tenn, Code Ann, § 6-54-512. Rather, the statute purports to apply to “the governing body of a municipality.” Thus, all goveming bodies of all municipalities in the State must effect actions that are permanent in nature via ordinance. The City Council did not comply with this general law of the General Assembly in attempting to rename the historic parks, so the Renaming Resolution is ultra vires and invalid. 2. Courts in Tennessee require that any repeal of an ordinance be accomplished by a measure of equal dignity. In City of Bluff City v, Morrell, 764 S.W.2d 200 (Tenn. 1988), the ‘lennessee Supreme Court stated > A prior brief of the Plaintiff referenced Tenn. Code Ann. § 6-20-21 forthe readings needed for an ordinance, The Defendant argued that the provisions of chapters 18-22 of Title 6 of the Tennessee Code only apply to cities and unincorporated territories who adopted a City Manager-Commission Charter after the passage of the Act allowing such incopporations in 1921. * Defendant acknowledged in its brief that PI claims in this e350) iff never alleged that Tenn. Code Ann, § 6.20-215 supported theWe are also of the opinion that passage of a motion "to kill the annexation suit" is inappropriate, We are in agreement with the Court of Appeals that the act which repeals an ordinance must be of equal dignity with the act which establishes it, and must be enacted in the manner required for passing a valid ordinance. An ordinance can be repealed only by another ordinance, and not by a mere resolution, order, or motion, or by a void ordinance, Id, at 203 (emphasis added), This ruling has been echoed by Courts in Tennessee even where the Court was not necessarily aware of the ruling in Morrell ‘Common sense dictates that after an ordinance has been duly enacted, it cannot bbe amended except by an act or acts of the legislative body equal in dignity to the ‘act which gave birth to the ordinance. Stated otherwise, an ordinance may not be amended by resolution or other act of the legislative body which does not fulfil all the requirements for the passage afer ordinance. 269 Hourglass Lounge, inc. x. City of Johnson City, 899. $.W.2d 860, 862 (Tenn. Ct. App. 1994) (emphasis added) (appeal denied by Supreme Court), See also, Jefferson County v Morristown, 1999 WL 817519 (Tenn. Ct. App. 1999) Defendant seeks to distinguish Morrell on the grounds that it is an annexation case, and by noting that the case cited by the Morrell Court as support for the equal dignity doctrine notes the principle that the City Charter is the fundamental law of a city, The argument is muddled, and illogical. Is Defendant asking this Court to invalidate the doctrine announced in Morrell? Is Defendant suggesting that the doctrine should only be applied in cases of annexation, or only to ceases with fact situations similar to that contemplated in Morrell? fit is the latter, the language of the Supreme Court is against the Defendant, The Morrell Court laid down a general procedural rule. The Court could easily have said “the act which repeals an annexation ordinance. . .”, but the Court opted not to qualify its statement. Moreover, the case which the Morrell Court cites ~ City of Lebanon v. Baird, 756 $.W.2d 236 (Tenn. 1988) ~ does not concem an annexation suit, nor does Hourglass Lounge. 6The Ordinance whereby Nathan Bedford Forrest Park was initially named therefore can only be repealed by another ordinance ~ not by a resolution ‘The law properly places limits on municipalities’ legislative powers in order to safeguard the ability of the citizens to influence their representatives’ behavior and “to prevent hasty and ill-considered legislation.” Metropolitan Government of Nashville and Davidson County v. Mitchell, $39 $.W.2d 20, 21 (Tenn, 1976). A municipality without such limits would be a fearsome prospect. ‘The City takes the position that its home rule charter supersedes well established ‘Tennessee law which requires a legislative act of equal dignity to abolish or amend an ordinance. Home rule has no such effect. The court addressed that specific issue when Shelby County took the position that its home rule charter superseded the state Educational Improvement Act. The court held, “There is no authority in either the Tennessee Constitution or the home rule enabling statute, T.C.A. § 5-1-201 ef seq. (1991 & Supp. 1995), for the proposition that a county is not subject to the general laws of this State simply because it elects to be a home rule county.” County of Shelby v. MeWherter, 936 S.W. 2 923, 934 (Tenn. Ct. App. 2015). In this case, the City Council of Memphis ignored all procedural limits on its activities in order to preempt the General Assembly's rightful exercise of authority. This Court should thus rile the Renaming Resolution at issue in this case to be an ultra vires action, and invalidate it. B, The City Couneil’s Resolution violated the division between the Legislative and Executive powers of the City of Memphis established by the City’s Charter. As in most jurisdictions in the United States, there is an explicit separation of powers between the Legislative and Executive bodies of the City of Memphis. The Council shall be vested with all other powers of the City not specifically vested in some other officer or officers of the City. The Council shall not,however, exercise executive or administrative powers nor interfere in the operation of the administrative divisions. ‘Memphis, Tenn., Referendum Ordinance No. 1852.5 Thus, when the City Council established the Division of Park Services as a part of the administrative apparatus of the City, it put all power over the Parks which it did not expressly reserve outside of its own immediate jurisdiction. ‘There is created and established a division of park services, which shall henceforth have complete and full control and management over all parks, playgrounds, recreational areas or centers, park or recreational facilities, parkways, boulevards, devices, concessions or any properties, projects, budgets or operations now or at any time devoted to or designated for use or used for park purposes or as part of the park system within the city. ‘The management and operations of the division of park services shall be under the supervision of a director of such division, who shall be appointed and removed in the same manner as other division directors of the city. The director of the division of park services shall report to, take direction from, and be responsible to the mayor for the efficient, economical and professional administration of the division of park services. Park Services Ordinance, Section 2-26. The Park Services Ordinance explicitly puts power over all Memphis parks in the hands of a division subject to the Mayor; that is the City’s administrative division of government, ‘Accordingly, by this Ordinance, the City Council transferred its own power over the Parks granted by the Charter of the City of Memphis to a Division outside of its immediate control. Disregarding this reality, the Defendant argues that the City Charter gives the City Council power over the Parks. “A Charter Provision is the organic law of the City and is superior to an ordinance.” See City’s Memorandum in Support of Motion for Summary Judgment, pg. 19. The title of Memphis, Tenn., Referendum Ordinance No, 1852 is “An Ordinance to Amend the Charter ofthe City of Memphis, Same Being Chapter 11, of the Acts of 1879, as Amended, Pursuant to the Provisions of Article 11, Section 9, of the Constitution of the Stete of Tennessee (Home Rule Amendment).” The final sentence of the preamble states thatthe Charter ofthe City of Memphis is amended pursuant tothe ordinance. Thus, Ordinance No. 1852 isnot merely an ordinance, but an amendment to the Memphis Home Rule Charter. A copy of this Referendum Ordinance No, 1852 was attached as Exhibit 3 to the Defendant's Statement of Undisputed Facts &‘The implication is that the Park Services Ordinance cannot strip the City Council of its powers, over the Parks. To a certain extent, this is true. The Legislative power of the City remains with the City Council, Should they desire to do so, they could pass an Ordinance abolishing the Division of Park Services, and reinstating the Parks Commission, Short of that, however, the Park Services Ordinance passed by the City Council is the law of the City by which the City Council must abide unless it conflicts with the Charter, In that case, the Ordinance is invalid. Thus, the City Council should be held to the laws they, themselves, have passed. They gave power over the Parks to the Division of Park Services, which is outside of their immediate control, They may not peremptorily snatch it back. The Renaming Resolution at issue in this case violates the Charter of the City of Memphis, and is thus ultra vires. It should be invalidated. C. The Mayor’s acquiescence to the Couneil’s ultra vires Resolution does not cure its unlawfulness. ‘The Mayor’s actions in this case do not affect any of the arguments presented above, This is the case — first ~ because of the separation of powers enshrined by the Memphis City Charter. Just as the City Council is forbidden from interfering with the administration of the laws, the Mayor is given no power to make laws. Again, “[tJhe Council shall be vested with all other powers of the City not specifically vested in some other officer or officers of the City.” Memphis, Tenn., Referendum Ordinance No. 1852. The powers vested in the Mayor are. The mayor shall make all contracts authorized by the city council, unless otherwise ordered, and shall supervise their execution. He or she shall make known to the city couneil the wants and necessities of the city, from time to time, recommending such action and the adoption of such measures as the welfare of the city may demand. He or she shall supervise all the officers of the city, and shall see that all laws and ordinances are enforced.Memphis Code of Ordinances, Sec 2-6-1, attached hereto as Exhil A. ‘Thus, the Mayor has no Legislative power beyond recommending legislation. Since the Ordinance that named Nathan Bedford Forrest Park could only be repealed by another Ordinance, the Mayor had no power to rename Nathan Bedford Forrest Park, and any attempt to ratify the Renaming Resolution is void Moreover, the Mayor’s acquiescence cannot cure the violation of the principle that the City Council may not interfere with the administration of the Laws. To say otherwise would be to treat the provisions of the City Charter establishing the separation of powers as if they could be ignored by the government of the City whenever convenient, Hypothetically, had Nathan Bedford Forrest Park been named in some way other than by Ordinance, the Mayor could have used whatever procedures ate in place for the operations of the Division of Park Services to change the Park's name. ‘That is not what happened in this case. In this case, the City Council passed an ulira vires Resolution, and the Mayor acted after that Resolution. Accordingly, the Mayor’s actions were every bit as ultra vires as the City Council's actions, and cannot ratify anything, CONCLUSION Defendants would have this Court rule that the City Council has the power to do as they please with the City’s parks. However, any and all of the City's actions must work within the limits set by the State of Tennessee and the City’s own laws. The Renaming Resolution violates many of these limits, and was explicitly set out to frustrate the rightful exercise of the States supreme Legislative power. The City Couneil passed the Renaming Resolution without regard for the right of the citizens of Memphis to have a say in the passage of laws, and without regard for the laws themselves. 10‘Accordingly, this Court should rule that the Renaming Resolution is ultra vires, and invalidate it, thereby restoring the original names of these Parks. Respectfully submitted, SCHULMAN, LeROY AND BENNETT By: S Douglas E. Jdhes, #4324 Barbara J. Perutelli, #11097 “Theresa J Neisen Maniatis, #30433 501 Union Steet, Suite 701 Nashville, TN 37219-0676 (615) 244-6670 Attorneys for Plaintiff CERTIFICATE OF SERVICE ‘The undersigned hereby certifies that a true and correct copy of the foregoing has been served via electronic mail and U.S, Mail postage prepaid on this the S9day of November, 2016 to Allan J. Wade and Brandy S, Parrish, One Commerce Square, Suite 2275, Memphis, TN 37103, attorneys for the Defendants. uw