ELECTRONICALLY FILED 2016 Aug 30 PM 4:30 CLERK OF COURT - CHANCERY IN THE CHANCERY COURT OF SHELBY COUNTY, TENNESSEE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS PAM HAYES, DEBBIE LEWIS, HARRY ADAMS, NEAL BUMPUS, JIM BROWN, JOHN ELLIS, MIKE DAUGHERTY, JACK, SMITH, ADAM SCHMUCK, AND CITIZENS TO SAVE OUR PARKS, INC., Plaintiff, vs. (CH-13-0785-3, THE CITY OF MEMPHIS and THE MEMPHIS CITY COUNCIL, Defendants. CITY’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Come now Defendants, the Memphis City Council and the City of Memphis (collectively “the City”) by and through undersigned counsel, and pursuant to the Tennessee Rules of Civil Procedure and submits its Memorandum of Law in Support of Motion for Summary Judgment, INTRODUCTION Plaintiffs filed the instant action on May 29, 2013 challenging the Memphis City Council's adoption of a Resolution to rename three Memphis City Parks and challenging the removal of @ “Forrest Park” park sign marker and other park signage. Plaintiffs amended their complaint several times in response to motions to dismiss filed by the City Defendants. The City’s Motion to Dismiss the Second Amended Complaint was heard on April 25, 2014. On August 6, 2014, the trial court entered an Order dismissing the case on the basis that all Plaintiffs lacked standing to challenge the renaming of the parks and that the Second Amended Complaint 1failed to state a claim upon which relief could be granted for removal of the “Forrest Park” name marker, Plaintiffs filed a timely appeal of the trial court’s dismissal of their claims. On August 21, 2015, the appeals court issued its opinion affirming dismissal of all but one of the plaintiffs based on lack of standing to challenge the renaming resolution. Hayes v. City of Memphis, No. W201401962COAR3CY, 2015 WL 5000729, (Tenn. Ct. App. Aug. 21, 2015). The appeals court reversed the trial court’s dismissal of the Sons of Confederate Veterans, Nathan Bedford Forrest Camp # 215 (“SCV Camp 215”), based on its finding that the SCV ‘Camp 215 had, under the standard applicable to motions to dismiss, alleged sufficient facts in the complaint to establish standing to challenge the renaming resolution. Because Plaintiffs failed to raise any issue on appeal regarding the trial court’s dismissal of the claim relating to removal of the Forrest Park sign, the court of appeals did not address that claim in its opinion and thus, this Court’s August 6, 2014 order on that issue is final. Pursuant to the court of appeals’ mandate, this matter has been remanded to this Court for resolution of the single remaining issue, to wir: the validity of the renaming resolution. ‘The only remaining Plaintiff, SCV Camp 215, has moved for summary judgment on this claim, which motion is set for hearing on September 30, 2016. The City brings the instant “counter” motion for summary judgment, requesting that the Court deny Plaintiff's motion for summary judgment and grant summary judgment to the City as set forth herein. SUMMARY OF RELEVANT FACTS ‘On February 5, 2013, the City of Memphis, acting through its City Council, passed a resolution (hereinafter “renaming resolution”) renaming Confederate Park, Jefferson Davis Park, and Forrest Park. The Renaming Resolution states that: (1) Nathan Bedford Forest (sic) Park is to be renamed as “Health Sciences Park”; (2) Confederate Park is to be renamed as “Memphis 2Park”; (3) Jefferson Davis Park is to be renamed as “Mississippi Park”; and (4) the Division of Parks & Neighborhoods (or Division’s designee) shall be responsible for immediately affixing all suitable identifying signs and markers of the new names. AC Wharton Jr. was the duly elected Mayor of the City of Memphis, Tennessee at the time of the renaming resolution. Mayor ‘Wharton supported the renaming of Forrest Park to Health Sciences Park, Confederate Park to Memphis Park and Jefferson Davis Park to Mississippi River Park. See Affidavit of AC Wharton Jt. As Mayor, it was Wharton’s opinion that the Memphis City Council possessed the authority to rename City of Memphis parks by resolution or ordinance and that under ordinances adopted by the Memphis City Council, the Mayor of Memphis possessed concurrent authority to name or rename City of Memphis’ parks, subject, however, to the Council disapproving such names and renaming any such park by resolution or ordinance. See Affidavit of AC Wharton Ir. As Mayor ‘of Memphis, Wharton believed that adoption of a Resolution by the Memphis City Council was preferable to an executive action renaming the parks because it allowed the citizens of Memphis the opportunity to participate in the renaming process. See Affidavit of AC Wharton Jr, As Mayor of Memphis, Wharton intended to and did, in fact, consent to and ratify the City Council's Resolution renaming Forrest Park to Health Sciences Park, Confederate Park to Memphis Park and Jefferson Davis Park to Mississippi River Park by directing the Chief Administrative Officer of the City to replace the existing signage in Forrest Park, Confederate Park, Jefferson Davis Park to reflect the new names, Health Sciences Park, Memphis Park and Mississippi River Park. See Affidavit of AC Wharton Jr. After the Renaming Resolution was adopted, affirmative action was taken at Mayor Wharton’s direction to replace the signage in the parks, See Affidavit of AC Wharton Jr, Removal and replacement of park signage is evidence ofMayor Wharton's support for the Resolution, the renaming of the parks and his official natification of the Resolution. See Affidavit of AC Wharton Jr. ARGUMENT AND AUTHORITIES 1. Standard of Review ‘Summary judgment is appropriate in virtually any civil case that can be resolved on the basis of legal issues alone. CAO Holdings, Inc. v. Trost, 333 S.W.3d 73, 81 (Tenn.2010). Summary judgment is appropriate where the moving party can demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Kinsler v. Berkline, LLC, 320 $.W.3d 796, 799 (Tenn. 2010); Tenn. R. Civ. P. 56.04. When a motion for summary judgment is made, the moving party has the burden of showing that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as matter of law.” Tenn, R. Civ. P. 56.04. The moving party may accomplish this by either: (1) affirmatively negating an essential element of the non-moving party’s claim; or (2) showing that the non-moving party will not be able to prove an essential element at trial. Hannan v, Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008). “A disputed fact is material if it must be decided in order to resolve the substantive claim or defense at which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a reasonable jury could legitimately resolve the fact in favor of one side or the other.” Ia. 1 “The City is entitled to judgment as a matter of law on Plaintiff's claim regarding the validity of the renaming Resolution. ‘The essence of Plaintiff's claim is that the City failed to utilize the proper procedure to rename a park. This is a legal argument, which fails as a matter of law. Plaintiff asserts two basic arguments to support its claim that the City’s renaming of Forrest Park to Health Sciences 4Park, Confederate Park to Memphis Park and Jefferson Davis Park to Mississippi River Park was invalid. First, Plaintiff argues that the Memphis City Council lacks any authority to rename parks because such authority is vested in Mayor, as head of the Division of Park Services. See Second Amended Complaint at 4] 104, 120, 126, 132-134. Second, Plaintiff argues that the City Couneil had no authority to rename Forrest Park by resolution, as opposed to ordinance. See Second Amended Complaint at §{] 135-138. The City will address each of Plaintiff's arguments separately. A. The City Council possesses broad and complete authority under the Charter to control city parks, which includes the right to rename such parks. Plaintiff contends that the Memphis City Council lacks the authority to rename City parks ‘and that the sole right to rename parks lies with the Mayor and the division of park services. Plaintiff's argument is predicated on a misconstruction of the Charter of the City of Memphis and Memphis City Ordinance 4763, which was adopted on April 25, 2000 and is codified in the Memphis Code of Ordinances as Chapter 23, Article I, sections 23-1 — 23-85 (“Park Services Ordinance”), as well as a misapplication of well settled rules of statutory construction.’ As demonstrated herein, Plaintiff misconstrues the Park Services Ordinance to (a) grant exclusive powers to the division of park services and the Mayor to rename city parks and (b) to require the City Council to act by Ordinance to alter the alleged exclusive control of the division of park services and the Mayor over city parks. Plaintiff's interpretation of the Park Services Ordinance is in conflict with express provisions of the Charter of the City of Memphis. Further, Plaintiff's interpretation of the applicable Charter provisions ignores the natural and ordinary meaning of " a copy of the Park Services Ordinance is attached hereto as an Exhibit, for ease of reference 5the language used in those provisions and omits any consideration of the order in which the Charter provisions were adopted. For example, as discussed herein, Plaintiff relies on certain provisions found in Section 581 of the Charter, which have unquestionably been amended by subsequent Charter enactments. 1. The City of Memphis Code of Ordinances is subordinate to the Charter of the City of Memphis. ‘The City’s creation of the division of park services did not and cannot lawfully alter the authority of the Memphis City Council found in the Charter of the City of Memphis. Plaintiff asserts that the enactment of Memphis City Ordinance 4763 somehow altered the City Council’s Charter authority to rename parks. Ordinance 4763 (referred to herein as the “Park Services Ordinance”) abolished the Memphis Park Commission and only transferred the former Park ‘Commission's “jurisdiction and control over all parks, playgrounds, recreational areas or centers, park or recreational facilities,. .. now devoted to or designated for use or used for park purposes or as part of the park system” to the “division of park services.” MEMPHIS, TN., CODE OF ORDINANCES ch.23, art. I, § 23-1; art. IV, § 23-1 (2000). The Park Services Ordinance provides that the management and operations of the division of parks services shall be “under the supervision of a director, who shall be appointed and removed in the same manner as other division directors of the city” and who “shall report to, take direction from, and be responsible to the mayor...” Jd. The Park Services Ordinance did not purport to transfer the full power and authority of the City’s governing body over parks, park lands and parkways under the Charter. Rather, the Park Services Ordinance simply replaced an appointed citizen board with a City division to perform administrative day to day management of the City’s parks, under the direct supervision of the Mayor. The parks services division assumed only the powers and authority of 6its predecessor, the Park Commission, and was subject to the same limitations that existed on the Park Commission’s authority. MEMPHIS, TN., CODE OF ORDINANCES ch.23, art. I, § 23-1 (b). ‘The Park Services Ordinance does not express any intention to expand the authority previously exercised by the Park Commission. Plaintiffs" argument regarding the Park Services Ordinance ignores section 579.1 of the Charter of the City of Memphis. It is elemental in Tennessee that City ordinances are subordinate to charter provisions. Wilgus v. City of Murfreesboro, 532 S.W.2d $0 (Tenn. Ct App. 1975). “The city may not by ordinance nullify a mandatory provision of its charter.” Id. By Referendum Ordinance No. 1852, the citizens of the City of Memphis adopted Home Rule for the City of Memphis on November 8, 1966 as authorized by the Tennessee Constitution. See to the Tenn. Const, art. XI, § 9. All private acts, which made up the City’s Charter pr adoption of Home Rule, were continued to the extent they were not inconsistent with the Home Rule Charter.> See Memphis, Tean., Referendum Ordinance No. 1852 § 17. The Home Rule Charter expressly provides that “the legislative power of the City shall be vested in the Council which shall have all legislative powers heretofore exercised by the Board of Commissioners, including but not limited to, the right to fix the tax rate and to approve and adopt all budgets.” ‘See Memphis, Tenn., Referendum Ordinance No. 1852 § 1 (emphasis supplied). Part of the City 2 The provisions and sections of the existing Memphis City Charter are not sequentially numbered because the Memphis City Charter encompasses some provisions of the City’s Charter in effect prior to the adoption of the Home Rule Charter as well as referendum ordinances adopted as part of or amending the Home Rule Charter. For ‘the purposes of this memorandum, the pertinent provisions of the private acts making up the City’s Charter prior to the adoption of the Home Rule Charter that continue to be in effect will be identified herein by reference to the original City Charter section number. The pertinent provisions of the Home Rule Charter will be identified herein by reference to the Referendum Ordinance number by which they were enacted,Council's legislative powers “heretofore exercised by the Board of Commissioners” included the following: 1. The power to acquire, improve and maintain parks for the benefit of the public; 2. The authority to establish a park commission by ordinance; 3. The authority to provide, by ordinance or resolution, rules, regulations and provisions to govern the park commission with respect to the control, maintenance, management, conduct or operation of any parks; 4. The authority to establish, by ordinance or resolution, the qualifications and terms of office of the members of the park commission; 5. The authority to provide rules and regulations to govern the park commission with respect to the fiscal and accounting methods and systems to be followed in connection with the park commission’s activities or operations; and 6. The authority to limit, restrict, change or terminate the use or operation of a park or by the park commission, by resolution or ordinance. See Memphis, Tenn. Charter Art. 57, §§ 576, 579, 579.13 Pursuant to the Charter of the City of Memphis, the City Council exercised its authority to create a Park Commission and to eliminate it. Memphis, Tenn. Charter Art. 57, § 579. The Council also exercised its authority under the Charter to create a new Division of Park Services to take the place of and to assume the then existing powers of the abolished Park Commission. The authority of the former Park Commission, transferred to the division of parks services, is limited not only by the terms of the ordinance creating it, but also by the Charter of the City of > A copy of Article $7 of the City Charteris attached to the City's Stateme of Undisputed Material Facts, 8Memphis. This authority is not superior to the Charter authority of the City Couneil over parks. Like its predecessor, the division of park services is subject to the legislative control and authority of the Memphis City Council over City parks. Section 579.1 of the Charter provides as follows: The [Memphis City Council] shall have full and ample power at any time and from time to time to provide by ordinance or resolution the qualifications and terms of office of the members of the Park Commission and the rules, regulations and provisions to govern the Park Commission with respect to the control, maintenance, management, conduct or operation by the Park Commission of any of the parks, playways, playgrounds, recreational centers or park or recreational facilities, devices, concessions or any properties, projects 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 of the City of Memphis or under the control, supervision or jurisdiction of the Park Commission; and the [Memphis City Council] shall have the power and authority from time to time by resolution or ordinance to limit, restrict and to change or entirely terminate the use or operation of any such property for park purposes or by the Park Commission and to provide rules and regulations to govern the Park Commission with respect to the fiscal and accounting methods and systems to be followed in or in connection with any of said activities or operations, including, without limitation of the foregoing, the budgeting, financing, handling and disbursement of the tax funds or receipts appropriated, set aside or devoted to park purposes or uses under the jurisdiction of the Park Commission; provided that the vouchers for all disbursements of such park funds or receipts on the item or items therefor, whether such disbursement is provided by resolution or ordinance to be made by or through the City Comptroller or other official of the City of Memphis or by or through the Park Commission, shall be approved by the Chairman of the Park Commission or by at least two of the Park Commissioners; provided, further, that the Park Commission, in its employment of such superintendents, engineers, assistants, consultants and other subordinate officers and employees as may be necessary for the efficient operation of the park system and activities within its jurisdiction, shall not be authorized to fix any salary or compensation to be paid by the Park Commission in excess of three thousand dollars ($3,000.00) per annum without the consent and approval of the Board of Commissioners of the City of 9Memphis; and provided, further, that no contract involving expenditures in excess of five thousand dollars ($5,000.00) shall be entered into by the Park Commission without the consent and approval of the Board of Commissioners of the City of Memphis. Memphis, Tenn, Charter Art. 57, § 579.1. ‘When read together, the provisions found in Article 57 of the Charter of the City of Memphis confer primary authority on the Memphis City Council to acquire, improve and maintain parks for the benefit of the public. In furtherance of this power, the Memphis City Council is authorized, but not required, to create a Park Commission. Even after creation of a Park Commission, the Memphis City Council retains the express authority “to provide by resolution or ordinance. . . “the rules, regulations and provisions to govem the Park Commission with respect to the control, maintenance, management, conduct or operation by the Park Commission of any of the parks” and “from time to time by resolution ot ordinance to limit, restrict and to change or entirely terminate the use or operation of any such property for park purposes or by the Park Commission”. Memphis, Tenn. Charter Art. 57, § 579.1 (emphasis supplied). In April of 2000, the City Council enacted an ordinance abolishing the Park Commission and transferring commissioners’ “jurisdiction, control and authority” to the City of Memphis Division of Park Services. MEMPHIS, TN., CODE OF ORDINANCES ch.23, art. I, § 23-1; art. IV, § 23-41 (2000). With respect to the Mayor’s authority over the division of parks services, the ordinance merely repeats the authority of the Mayor over other City divisions provided for in the Home Rule Charter, Since 1949, however, the City Council possesses the legislative authority to * Enacted in 1949, the provisions of section $79.1 control over any earlier inconsistent provisions of the Charter regarding the City Couneil’s power and authority with respect to the parks and the park commission, such as section S581, which was adopted in 1901. See Memphis, Tenn, Charter Art. 57, § 581 10determine what powers to confer on the park commission or, its successor, the Division of Park Services, Memphis, Tenn, Charter Art. 57, § 579.1. Further, section 579.1 of the Charter provides the City Council with unconditional authority to provide rules, regulations or provisions to gover the Park Commission, now the division of park services, with respect to the ‘management, conduct or operation of any of the parks and to limit, restrict and to change the ‘operation of any park by the Park Commission. The power to allocate the use of City assets and resources is unquestionably legislative. Section 579.1 expressly and unequivocally permits the City Council to act by resolution. The City Council’s authority has not and cannot be modified, repealed or changed by the enactment of a mete ordinance. It has long been the law in this state, as in many other states, “that a municipal charter is mandatory, taking precedence over ordinances and limiting the actions of the municipality's agents, who must follow the charter.” Fox v. Miles, 164 S.W.3d 593, 598 (Tenn. Ct. App. 2004); see also State ex rel. Lewis v. Bowman, 814 S.W.2d 369, 373 (Tenn, Ct. App. 1991). More than one hundred years ago in the case of Marshall & Bruce Co. v. City of Nashville, 109 Tenn. 495, 512, 71 S.W. 815, 819 (1903), the Tennessee Supreme Court stated: “The provisions of the charter are mandatory, and must be obeyed by the city and its agents; and, if in conflict with an ordinance, the charter must prevail.” See also Barnes v. Ingram, 217 Tenn. 363, 397 S.W.2d 821 (1965). “Municipal corporations have power to pass ordinances, but, in order to be enforceable, they must be legal, reasonable, constitutional, and not, contrary to valid charter provisions; and, if they do not comply with these requirements, they will be set aside by the courts as invalid and illegal.” Marshall, 71 $.W. at 819. Plaii '§ argument that the Park Services Ordinance vests absolute control over the city’s parks in the division of park services and/or the Mayor ignores the express reservation of uthe City Council's powers in the Charter. Section 579.1 of the Charter of the City of Memphis expressly provides the City Council with the power to adopt resolutions to change the use or operation of any park, Section $79.1 of the Charter of the City of Memphis also expressly provides the City Council with the power to adopt resolutions directing the park services division in the maintenance, management, conduct or operation of any park. Memphis, ‘Tenn. Charter Art. 57, § 579.1. Thus, there is no question that the City Council may act by resolution to change the operation of any park or to provide for the park services division to take any action regarding the maintenance, management, conduct or operation of any park. The February 5, 2013 Resolution essentially does both. It provides that three city parks are to be operated under new names, which are designated by the City Couneil and directs the Division of Park Services to take action to affix signs and markers bearing the new names. ‘The City Council’s February 5, 2013 Resolution was well within the legislative power of the Council as provided in the Charter of the City of Memphis. Any concurrent authority possessed by the Mayor and/or Division of Parks Services Director (or the former Park Commission) to name parks does not limit or restrict the City Council’s ultimate authority to adopt a resolution or ordinance directing the division of parks services (or the former Park Commission) in the management, conduct, ‘maintenance or operation of any park. ‘The language of 579.1 is broadly worded fo encompass essentially any activity performed by the division of park services (or the former Park Commission) under the control of the Mayor. Certainly, the name assigned to a park and the signage displayed in a park falls within the purview of “control, maintenance, management, conduct or operation” of any park.> 5 Notably, Plaintiff attached an Exhibit to its Second Amended Complaint that supports the City’s position thatthe City Council possesses superior authority to rename parks. ‘The minutes ofthe Perk Commission’s January 23, 12Moreover, the renaming of a park also falls squarely within the City Council's statutory power to limit, restrict and change the use and operation of any properties designated for use as part of the City's park system by resolution or ordinance. Memphis, Tenn. Charter Art. $7, § 579.1. There is simply no merit to Plaintiff's claim that the City Couneil lacks authority to rename any park 2 Section 23-43 of the Park Services Ordinance is irrelevant to the instant action, In its motion for summary judgment, Plaintiff cites to section 23-43 of the Park Services Ordinance for the proposition that the City Council is required to act by ordinance to modify the authority of the division of park services. Section 23-43; however, relates only to the “authority, ‘composition or existence” of a citizen advisory committee for the parks and not to the authority of the division of park services. Sections 23-41 through 23-43 of the Park Services Ordinance authorize the Mayor to establish a “park committee” and provide rules pertaining to the committee, in the event one is established. One such rule, set forth in section 23-42 (9), expressly limits the authority of any such committee as follows: (9) The committee shall meet quarterly to solicit and convey recommendations for improvements, initiatives, programs, 1972 meeting is as attached to the Second Amended Complaint as Exhibit 22. As to the authority of the Commission to rename parks, the Commission’s attorney opined that the Park Commission possessed authority 10 rename a park; however, acknowledged that the City Council could ask the Commission Board to seview any such action taken or the Council could “overrule the Board,” ® Asto the ten acres now known as “Health Sciences Park,” that property was granted to the City of Memphis by the Acts of 1875 in fee simple absolute forever to be used solely and exclusively as end for a public hospital. By the ‘Acts of 1895 the General Assembly authorized the City to sell said hospital grounds or any part thereof upon such terms, and in such manner as it deemed proper or to retain said property and devote it to a park or to any other municipal purpose it deemed appropriate. Acts of 1895, Ch. 84. The General Assembly did not place any restrictions on the manner in which the City could exercise is rights of sale or designation of use of the property Bsolutions and participation regarding parks with the City of Memphis to the director of parks who shall in turn convey those recommendations to the mayor and the Memphis City Council for review. MEMPHIS, TN., CODE OF ORDINANCES ch.23, art. IV, § 23-42 (9) (2000) (emphasis supplied). Section 23-43, erroneously relied on by Plaintiff herein, provides that the City Council may at any time “amend, modify or eliminate, by appropriate ordinances duly adopted, the authority, composition or existence of the parks committee.” MEMPHIS, TN., CODE OF ORDINANCES ch.23, art. IV, § 23-43 (9) (2000). In other words, in the event that a committee is established by the Mayor, as provided in sections 23-42 and 23-43, the City Council still retains the authority to amend or modify the committee's authority or composition or eliminate the committee entirely by adopting “appropriate ordinances.” This section, 23-43, has no bearing, express or implied, on the City Couneil’s authority under the Charter of the City of Memphis to exercise its authority over parks and the division of park services by resolution. Furthermore, section 23-43 reiterates that the authority of any parks committee created by the Mayor is limited to providing recommendations and advice to the Mayor and to the City Council on matters pertaining to the parks. Id. Even a cursory reading of sections 23-42 and 23-43 reveals that the provisions pertain only to the existence, authority and composition of a parks committee and do not in any way relate to the City Council’s authority to modify or abolish the authority of the division of park services. The parks committee, if and when created, has no authority over city parks, is purely advisory and is required to make recommendations, when requested, to both the City Council and the Mayor. Indeed, if anything, section 23-42 evidences the City Council's continuing authority over parks by expressly requiring the parks director to convey committee 4recommendations to the Memphis City Council for review. As set forth hereinabove, the Memphis City Council possesses ultimate authority over city parks, which may be exercised by resolution or ordinanee, pursuant to the Charter of the City of Memphis, to which this and every other ordinance is subordinate. Plaintiff's citation to section 23-43 of the Park Services Ordinance is supremely misplaced. 3. Section 581 of Charter has been amended by subsequent Charter enactments, Plaintiff also relies on Section 581 of the Charter of the City of Memphis to support its contention that the City Council is required to establish the rules and regulations to govern the Park Commission by ordinance, rather than by resolution. Specifically, Plaintiff relies on the following provision found in section 581: The Board of Commissioners of the City shall have full and ample power to establish, by ordinance, rules and regulations to govern said Park Commission, and to govem the employment and discharge of employees, and to fix the official bonds and compensation of such Park Commissioners and the employees. ‘Memphis, Tenn, Charter Art. 57, § 581 (Acts 1899, ch. 142, § 7; Acts 1901, ch. 103, § 1). Plaintiff's argument fails because this section has been amended by a later Charter enactment, Specifically, it has been amended and superseded by section $79.1, which is captioned “Authority of Board of Commissioners to prescribe qualifications and term of members of Park Commission and rules and regulations governing commission; disbursements by Park Commission; etc.” and therefore, expressly encompasses the same issue as the prior enactment found in section 581. See City’s Stmt of Undis. Mat. Fact, §§ 2-5. Section 579.1 expressly provides that the City Council “shall have full and ample power at any time and from time to time to provide by ordinance or resolution the qualifications and terms of office of the Ismembers of the Park Commission and the rules, regulations and provisions to govern the Park Commission with respect to the control, maintenance, management, conduct or operation by the Park Commission of any of the parks... .” Memphis, Tenn. Charter Art. 57, § 579.1. (Priv. Acts 1949, ch. 494, § 2). Enacted in 1949, the provisions of section 579.1 control over any carlier inconsistent provisions of the Charter regarding the City Council's power and authority with respect to the parks and the park commission, such as section $81, which was adopted in 1901. See Memphis, Tenn. Charter Art. 57, § 581. In addition, Section 579.1 was enacted as Chapter 494 of the Tennessee Private Acts of 1949, which contains an express repealer provision for all laws or parts of laws in conflict with its provisions and expressly amends all prior Acts constituting the Charter of the City of Memphis. Tenn. Priv. Acts 1949, ch. 494, §§ 1, 5 (See Exhibit 2 to City's Stmt. of Undis. Mat, Fact). Because both sections, 581 and $79.1, permit the City Council to act by ordinance, it is not necessary for Section $79.1 to repeal the prior section; however, there is no question that Section $79.1 constitutes an express amendment of the Charter to permit the City Council to also act by resolution. In any event, Plaintif’s reliance on section 581 is misplaced. B. The City had the authority to rename Forrest Park through a resolution or ordinance adopted by the City Council. In somewhat of an absurd contradiction, Plaintiff asserts that the Renaming Resolution is, void because the “name of Forrest Park can be changed only by ordinance.”” See Second Amended Complaint at §f] 135-137. In their Second Amended Complaint, Plaintiffs cite to " Notably, ony the Memphis City Council possesses the authority to enact Ordinances, In light of Plaintif’ fist ‘argument, that ony the Mayor or the Division of Park Services has the authority o rename a City park, Plant apparently, and erroneously, contends that no one has authority to change the name of Forrest Park 16Tennessee Code Annotated section 6-20-215 (d) to support this claim, which provides in relevant part: “No ordinance shall be amended, except by ordinance.” In its motion for summary judgment, Plaintiff relies on “basic hom book law in Tennessee” and makes no reference to Tennessee Code Annotated section 6-20-215 (d). Plaintif’s claim fails under either argument. 1, Tennessee Code Annotated section 6-20-215 Plaintiff's reliance on Tennessee Code Annotated section 6-20-215 is misplaced because that statute is not applicable to the City of Memphis. The provisions of chapters 18-22 of Title 6 of the Tennessee Code apply only to cities and unincorporated territories who adopted a City Manager-Commission Charter after the passage of Act allowing such incorporations in 1921 See Tenn. Code Ann. § 6-18-101(a)(1); Acts of 1921, ch. 173. The City was already in existence in 1921 and has never adopted a charter under chapters 18-22 of Title 6 of the Tennessee Code, but has operated under its original charter granted in 1879, as amended from time to time. ‘The City of Memphis adopted a Home Rule Charter in 1966 thereby supplanting the former Mayor/Commission form of government with an elected Mayor-Council Home Rule form of government. Thus, the City of Memphis’ Home Rule Charter governs the manner in which it enacts its laws and policies and whether or to what extent it may act by resolution versus ordinance. See Memphis, Tenn., Referendum Ordinance No. 1852 § 1 2. Basic horn book law in Tennessee In its summary judgment motion, Plaintiff claims that it is “basic hombook law in ‘Tennessee that ‘the act which repeals an ordinance must be of equal dignity with the act which establishes it and it must be enacted in the manner required for passing a valid ordinance. 7Plaintiff quotes City of Bluff City v. Morrell, 764 S.W.2d 200, 202 (Tenn. 1988) in support of its position on this issue. Plaintiff's analysis ignores other well settled principles of Tennessee law, namely that “[t]he charter is the organic law of the municipality to which all its actions are subordinate.” City of Lebanon v, Baird, 756 8.W.2d 236, 241 (Tenn. 1988). The City Council’s authority to act by resolution to change the operation of City parks and to provide rules and regulations regarding the operation or maintenance of any park was established in the Charter of the City of Memphis subsequent to the ordinance establishing “Bedford Forrest Park”. The decision in Morrell was based on a distinct set of circumstances, which are not present in the instant. In Morrell, the Bluff City city council passed an annexation ordinance on final reading. However, prior to the operative date of the annexation, a group of residents ‘brought a quo warranto proceeding challenging the annexation. During the period of time that the annexation was held in abeyance by the quo warranto proceeding, the city council attempted to rescind the annexation ordinance by a motion, The Supreme Court held that such a motion was not effective to nullify the annexation ordinance because “an act which repeals an ordinance must be of equal dignity with the act which establishes it, and must be enacted in the same manner required for passing a valid ordinance.” Id. at 202. Ironically, the court in Morrell relies on the decision in City of Lebanon v. Baird. Id. ‘The decision in Baird, when read in its entirety, negates Plaintiff's claim that the City of Memphis may only change the name of “Bedford Forrest” park by ordinance. On the issue of whether an action must be taken by adoption of an ordinance, the court Baird expressly held as follows: Furthermore, the distinction between a resolution, which is essentially an administrative action, and an ordinance must be ‘maintained by the city if its charter draws the distinction and requires it, In such case, an ordinance has the force of law; a 18resolution does not. If, however, more than one means or method of accomplishing a legitimate _municipal_goal_is authorized, the city has the discretion to choose which means it will utilize. South Central Bell Telephone Co. v. City of Chattanooga, 578 S.W.2d 950, 952 (Tenn.App.1978). Baird, 756 S.W.2d at 242 (emphasis supplied). The decision in Morrell, involving annexation in Bluff City, is not instructive or applicable to the instant case. The controlling authority in the instant case is the Charter of the City of Memphis, which was adopted after the Ordinance establishing “Bedford Forrest Park” and expressly permits the City Council to act by resolution “to change or entirely terminate the Use or operation of any . . . property for park purposes” and/or to adopt “provisions to govern the Park Commission with respect to the control, maintenance, management, conduct or operation by the Park Commission of any of the parks.” As alleged by Plaintiff, the Ordinance establishing “Bedford Forrest Park” was adopted by the City’s Legislative Council in 1899. See Second Amended Complaint at {¥] 54-55, exhibit 8. The City’s Legislative Council was replaced in 1909 by an elected Mayor and Board of Commissioners. Thereafter, the Tennessee General Assembly amended the City’s Charter in 1949 to expressly authorize the Board of Commissioners of the City by resolution or ordinance “to change or entirely terminate the use or operation of any such property for park purposes” and to adopt “provisions to govern the Park Commission with respect to the control, maintenance, management, conduct or operation by the Park Commission of any of the parks”, See Memphis, Tenn, Charter Art. $7, § $79.1 This provision of the City’s Charter was incorporated into the City’s Home Rule Charter in 1966 and the powers under Section 579.1 were vested in the City Council. The Council was expressly authorized to adopt policies for the administration of all units of City government. Jd, ‘A Charter provision is the organic law of the City and is superior to an ordinance. The 19Charter may amend, modify or repeal an ordinance. The Charter may also specify the procedure for adoption of laws, legislative actions and amendments to ordinances." In this case, the provisions of Charter Section 579.1 specifically permit the Council to act by resolution as it relates to the control, maintenance, management, conduct or operation by the Park Commission of any of the parks. The Council's resolution renaming the parks in the instant case was consistent in all respects with its legislative powers and past actions.’ Where, as here, there is an express provision of the City’s Home Rule Charter that permits the City to take an action by resolution, contrary “hornbook” law is not applicable. The City Council’s authority to act by resolution to change the operation of City parks to provide rules and regulations regarding the operation or maintenance of any park was established in the Charter of the City of Memphis subsequent to the ordinance establishing “Bedford Forrest Park”. The enactment of this Charter provision clearly constitutes an act of greater “dignity” than the Ordinance establishing jedford Forrest” park. B. The City Council decision to rename the three city parks was ratified by the Mayor of the City of Memphis. Plaintiff has alleged that the division of park services and the Mayor have “complete and full control and management over all parks” pursuant to the “Park Services Ordinance”. $9 104- 110). On this basis, Plaintiff alleges that the City Council lacks the authority to adopt the * Indeed, the City’s Charter contains specific provisions which allow the Council to amend an ordinance by resolution, Section 332 of the City's Charter authorizes the Couneil to amend its annual budget ordinance “by resolution or ordinance.” Additionally, the Council is authorized by resolution or ordinance to enter into banking contracts with any solvent bank. In the case of death, resignation or recall of the Mayor, the City Council may appoint a successor within a twenty (20) day period, which may only be accomplished by resolution, ° tn fact, the Council acted under this authority to rename and re-designate a portion of Audubon Park “Cancer Survivors Park” by resolution in 2006, 20renaming resolution at issue in this case and contends that the resolution is void. For the reasons set forth hereinabove, Defendants dispute Plaintiff’ legal argument on this issue; however, even assuming arguendo that the Council lacked authority to rename the parks, the Renaming Resolution was ratified by the Mayor of Memphis, curing any alleged deficiency in the renaming procedure ‘When a municipality fails to act within its charter or under applicable statutory authority, its action is considered ultra vires, or beyond the scope of its powers, and is therefore void or voidable, Baird, 756 8.W.2d at 241, ‘The Baird court described the two circumstances in which a municipal action may be found ultra vires as follows: Under Tennessee law, a municipal action may be declared ultra vires for either of two reasons: (1) because the action was wholly outside the scope of the city’s authority under its charter or a statute, or (2) because the action was not undertaken consistent with the mandatory provision of its charter or a statute, Baird, 756 S.W.2d at 241 Plaintiff herein alleges the second scenario; that the park renaming was not undertaken consistent with the provisions of the City’s Charter and Ordinances. Where a city’s failure to do an authorized act in the manner prescribed by its charter or other law under which it is attempting to act, the defect may be cured by a subsequent ratification by the city. Id. at 244, Ratification must, however, conform to the procedure initially required by law for the action to have been intra vires and thus must be done by an affirmative act. Id. ‘Turning to the instant case, Plaintiff has not offered any particular procedure that must be undertaken by the Mayor or the division of park services in order to effect a name change. Instead, Plaintiff merely asserts that the authority to rename rests with the Mayor and the division of park services. Under the circumstances, all that is required is that the Mayor or the 21division of park services take some affirmative action to ratify or authorize the Renaming Resolution. ‘The City has submitted undisputed facts demonstrating that the Mayor did, in fact, authorize and ratify the renaming of Forrest Park to Health Sciences Park, Confederate Park to Memphis Park and Jefferson Davis Park to Mississippi River Park. Indeed, Plaintiff's Second Amended Complaint makes the following allegations sufficient to establish that the renaming was ratified by the Mayor: 142. The City of Memphis, relying on the Renaming Resolution, has removed some of the signs in the three historic parks. 143. The Renaming Resolution and removal of signage from the three historical parks was improper and illegal. 144, George Little, Chief Administrative Officer 10 Memphis's mayor instructed Memphis employees or subcontractors to remove the Forrest Park name marker. See Second Amended Complaint {ff 142-144. In addition, the City has offered the affidavit of AC Wharton Jr., which unequivocally establishes that the Mayor of the City of Memphis fully authorized and ratified the renaming of the parks. See City’s Stunt of Undis, Mat. Fact, $f] 14-20, Exhibit 5. Wharton was the duly elected Mayor of the City of Memphis, Tennessee at the time the renaming resolution was adopted. Jd. AAs the duly elected Mayor of Memphis, Wharton supported the renaming of Forrest Park to Health Sciences Park, Confederate Park to Memphis Park and Jefferson Davis Park to Mississippi River Park. Id. As Mayor, Wharton possessed authority to rename City of Memphis parks by executive order or direction to the Director of the Division of Park Services. Jd. This authority was concurrent with the authority of the Memphis City Council to rename a Park by resolution or ordinance, Id. As Mayor of Memphis, Wharton believed that adoption of a Resolution by the Memphis City Council was preferable to executive 22action renaming the parks because it allowed the citizens of Memphis the opportunity to participate in the renaming process. Jd. Wharton, acting as Mayor, intended to and did, in fact, consent to and ratify the Resolution renaming Forrest Park to Health Sciences Park, Confederate Park to Memphis Park and Jefferson Davis Park to Mississippi River Park by directing the Chief Administrative Officer of the City to replace the existing signage in Forrest Park, Confederate Park, Jefferson Davis Park to reflect the new names, Health Sciences Park, Memphis Park and Mississippi River Park. /d. Replacing the signage is an affirmative action evidencing the Mayor's support for the Resolution, the renaming of the parks, as well as his official ratification of the Resolution. Id. CONCLUSION Plaintiff's claims that the City Council lacked authority to rename the City parks through the February 5, 2013 Resolution is belied by section 579.1 of the City’s Charter, the Parks Services Ordinance and Tennessee decisional law. WHEREFORE PREMISES CONSIDERED, for the reasons set forth above, the City of Memphis and the Memphis City Council respectfully request that this Honorable Court enter an order enter an Order granting Summary Judgment in Defendants favor on all remaining claims by Plaintiff. Regechtily submitted, ALLAN J. WADE (4339) BRANDY S. PARRISH (21631) Allan J. Wade, PLLC One Commerce Square, Suite 2275 Memphis, Tennessee 38103 (901) 322-8005 23awade@thewadefirm.com bparrish@thewadefirm.com CERTIFICATE OF SERVICE 1 certify that 1 forwarded a copy of the foregoing document to the following individuals by clectronic means of filing with this Court; or for documents filed manually and for those for whom the Court records show do not receive the electronic transmission, then by U.S. mail, postage prepaid, this the 30th day of August 2016: Douglas E. Jones 501 Union Street, Suite 701 Nashville, TN 37219-0676 Brandy S. Parrish 24