Nashville judge strikes down anti-tax referendum

A Nashville judge ruled on Tuesday that a citizen group seeking to make drastic changes to the Metro charter did not follow the appropriate laws on petition-driven ballot initiatives and struck down a referendum election that was scheduled for July 27.

Davidson County Chancellor Russell Perkins wrote in his ruling, made public on Tuesday afternoon, that 4 Good Government’s petitions violated laws that require groups to choose a single date for such a referendum election. Perkins said the single date requirement was not merely “hypertechnical ruling.”

4 Good Government had every right to pursue changes to the Metro charter, Perkins wrote, but the group was required by law to meet certain “legal prerequisites.”

“… and the Election Commission’s failure to insist that the ‘prescribe a date requirement’ be complied with as written is not entitled to deference upon review,” Perkins wrote.

The 4 Good Government petitions asked for the referendum to take place on one of two dates, and neither of those dates were the one selected by the Republican-controlled Davidson County Election Commission.

It’s the second time in less than a year that 4 Good Government and its leader Jim Roberts have lost a legal challenge to their efforts to roll back property taxes, require referendums on everything from long-term government leases to land deals and make other dramatic changes to Metro’s day to day operations.

Metro lawyers argued in court earlier this month it is vital that such petition drives follow the letter of the law when the mission is to overhaul how the city government functions.

In a blistering opinion, Perkins took issue with the election commission pushing forward with the referendum despite the legal issues that were raised as the five-person board pondered the petitions over a series of five meetings. Critics said the push for the referendum was based on partisan politics. Commissioners are chosen by the political party in power in the state legislature, meaning three Davidson County commissioners are nominated by Republicans and two are nominated by Democrats.

It was divided, partisan votes that led to the hiring of the outside legal counsel and on the decision to put the matter on the July 27 ballot.

“The Court respectfully concludes that 4GG did not satisfy all of the legal prerequisites for getting the Petition it submitted to the Election Commission placed on the ballot for a referendum election,” Perkins wrote in his order striking down the election. “Additionally, the Petition contained other deficiencies which were brought to the Election Commission’s attention, as discussed above. The Election Commission, therefore, committed prejudicial legal error in its (May 10, 2021) order placing 4GG’s second Petition on the ballot for a referendum election on July 27, 2021 without requesting the Court for a declaratory judgment determination, given the thoughtful concerns raised by the Metropolitan Government, especially in light of the court’s rulings in (last year’s lawsuit over the initial referendum effort that was struck down by Chancellor Ellen Hobbs Lyle).

“This decision by the Election Commission was fraught with essential illegality; the Election Commission’s decision was arbitrary, capricious, and illegal.”

Although Perkins struck down the referendum because of the date requirement, he also ruled that the anti-tax provision was unconstitutional and could not go on the ballot. Perkins’ order spelled out provisions in the state constitution granting property taxing authority to local governments. He said the proposal to take that power away and give it instead to the voters was unconstitutional.

The legal victory was celebrated by Nashville Mayor John Cooper, who opposed the referendum proposal.

“We’re building a great city, and we’re grateful for a ruling that prevents a small group from hijacking Nashville’s future with an unconstitutional California-style referendum,” Cooper said. “Our next budget makes historic investments in our students, our transportation infrastructure, and affordable housing as we maintain a tax rate 24 percent lower than our average rate over the past quarter century – the third lowest property tax rate in Metro history. We will continue to fix problems and find solutions to build a stronger, more equitable city for everyone.”

Roberts and 4 Good Government wanted to reduce the city’s property tax rate to its level prior to last year’s 34 percent increase. Roberts also sought to require voter approval for any future increase of more than 3 percent.

The referendum also would: 

• Make it easier to remove Metro officials by reducing the number of signatures needed to force a recall election, and blocking the recalled official from running for their own office.
• Abolish health insurance benefits for Metro Council members and other elected officials.
• Preserve voter-approved charter amendments by changing the charter itself to say those amendments could only be repealed by way of future voter referendums.
• Make it harder to give away Metro property by requiring 31 Metro Council votes to approve land conveyances instead of the current requirement of 21 votes. Also, voter referendums could be triggered on land deals valued at more than $5 million and on leases of at least 20 years.
• Revert pro sports stadiums and the surrounding developments back to taxpayers in the event a team leaves town or fails to play in its venue for 24 straight months.

The Metro charter requires that petition-driven charter amendment proposals choose a date for the special election. Instead, Roberts picked two dates. But, Metro attorneys, led by Director of Law Bob Cooper and top litigator Allison Bussell, said that by picking two dates 4 Good Government sought to make it easier on themselves to meet the election deadlines for filing the petition. The Nashville Area Chamber of Commerce and Tennesseans for Sensible Elections filed a legal brief in support of Metro, making the case that allowing petition drives to choose multiple dates could lead to a slippery slope where future efforts effectively eliminate the deadline requirement by selecting two, or even more election dates.

The chamber, represented by attorney Daniel Horwitz, also pointed out that in separate legal filings Roberts repeatedly pushed the election commission to expedite their hearings pondering the petitions so that the dates 4 Good Government sought for the election could be achieved.

“As the chamber and TSEL argued at length, the Davidson County Election Commission lacks authority to violate clear provisions of the Metropolitan Charter in an ill-advised effort to apply new and different rules to a favored petitioner,” Horwitz said. “Compliance with straightforward and longstanding legal requirements is not voluntary, and ignoring provisions of the Charter while depriving opponents of fair notice solely because a bare majority of the Election Commission supports a measure is impermissible.”

The election commission, which is led by three Republican-appointed commissioners, chose July 27 as the referendum date in hopes of forcing Metro to implement the tax rollback in the current year’s budget.

The election commission’s attorneys, Vanderbilt professor James Blumstein and Bradley law firm attorney Austin McMullen, argued that technically 4 Good Government did meet the single date requirement because it was impossible for the referendum to take place on the earliest date listed on the petitions based on when the signatures were filed.

The ruling by Perkins is likely to trigger an appeal, and there are other legal challenges lined up. The Nashville Business Coalition, represented by attorney Jamie Hollin, has a July court date on a lawsuit seeking to block the referendum. And Metro is engaged in a related lawsuit over a Metro Council-backed charter amendment proposal that, if passed, would effectively mute the 4 Good Government charter amendments. All 40 Metro Council members backed that proposal, but the three Republian election commissioners opposed the measure and asked a judge to rule on its legality before adding it to the July 27 referendum ballot.

Metro Councilman Bob Mendes, the architect of the council-proposed amendment, said today “was a good day for the people of Nashville.” Mendes said he knows the COVID-19 pandemic was tough on everyone and it’s fair for people to be mad about it.

“I’m hoping we can start looking forward together instead of relitigating the past,” Mendes said, adding there are over 14,000 people who signed the 4 Good Government petition who shouldn’t be considered “radicals,” as claimed by the campaign opposing the referendum. “I think Jim Roberts and whoever paid for his mass mailing campaign are extremists, but most of the 14,000 were mad about change and hard times.

“That’s understandable. I hope the few extremists trying to hurt Nashville get the message and just stop. But we need to find a way to get past demonizing our neighbors who signed the petition.”

The Tennessee Lookout reached out to Delanis through election commission staff for comment late Tuesday.