Who starts a Tennessee deannexation vote, and do residents have a state constitutional right to demand one?

Subject

Opinion No. 13-45, Referendum on Deannexation, June 11, 2013

Plain-English summary

Tennessee has two ways for territory to be removed from a city or town's boundaries ("deannexed"), both set out in Tenn. Code Ann. §§ 6-51-201 to -204:

• § 6-51-201(a): Three-fourths supermajority referendum. The city or town legislative body passes an ordinance calling an election. If 3/4 of voters voting in the election approve, the territory is deannexed.
• § 6-51-201(b): Ordinance with citizen veto. The city or town legislative body, after notice and hearing, passes a contraction ordinance on its own initiative. The deannexation goes through unless residents file a petition objection (10% of registered voters in the area) within 75 days. If a valid petition is filed, a referendum is held at the next general election. Majority controls.

Either way, the city or town legislative body is the only entity that can start a deannexation. Citizens can't initiate one independently.

Rep. McManus asked three questions about this framework.

1. How is a deannexation referendum initiated? Under § 6-51-202, by an ordinance of the city or town legislative body. There is no other initiation mechanism in the statute.

2. Can residents use § 2-5-151 (the general charter-referendum statute) to initiate a deannexation vote? No. § 2-5-151 sets up requirements for charter-based recall and referendum processes generally. But §§ 6-51-201 to -204 are the specific statute governing deannexation, and they don't authorize citizen-initiated deannexation. Under Keough v. State, 356 S.W.3d 366, 371 (Tenn. 2011), the specific statute controls over the general statute.

3. Does Article I, Section 1 of the Tennessee Constitution give residents a right to demand a deannexation vote? No. Vollmer v. City of Memphis, 792 S.W.2d 446 (Tenn. 1990), held that Article I, Section 1 (and Article XI, Section 16) do not create a citizen right to vote on annexation questions. The Municipal Boundaries Clause (Article XI, Section 9) gives the General Assembly authority "by general law" to "provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered." The legislature has done so in §§ 6-51-201 to -204. That exclusive statutory framework controls.

More broadly, federal and Tennessee cases consistently hold that annexation (and by extension deannexation) decisions don't raise equal protection or due process problems absent invidious discrimination, when the relevant statute is followed. Hunter v. Pittsburgh, 207 U.S. 161 (1907); Deane Hill Country Club v. Knoxville, 379 F.2d 321 (6th Cir. 1967); State ex rel. Wood v. City of Memphis, 510 S.W.2d 889 (Tenn. 1974).

Currency note

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

Tennessee's deannexation statutes have been amended since 2013, and the annexation framework was substantially reformed in 2014 (Public Chapter 707, which changed the annexation-by-ordinance default and gave residents new procedural rights). Anyone advising on a current deannexation question should pull the current §§ 6-51-201 et seq.

Background and statutory framework

Constitutional foundation. The Municipal Boundaries Clause, Tenn. Const. art. XI, § 9, gives the General Assembly authority to "provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered." The General Assembly has done so in Title 6, Chapters 51 et seq.

Deannexation procedure: §§ 6-51-201 to -204.

• § 6-51-201(a) (supermajority referendum). Any incorporated city or town may contract its limits within any given territory, provided 3/4 of the qualified voters voting in an election assent.
• § 6-51-201(b)(1)-(3) (ordinance with citizen veto). City may, after notice and public hearing, contract its limits within any territory by ordinance when it appears in the best interest of the affected territory. Majority of total membership of legislative body must approve. The contraction doesn't occur if opposed by a majority of voters in the area to be deannexed; this concurrence is presumed unless a petition (10% of registered voters in the area) is filed within 75 days. If a valid petition is filed, a referendum is held at the next general election. Majority of those voting controls.
• § 6-51-202. Any referendum referenced in subsection 201 "shall be held under the provisions of an ordinance to be passed for that purpose." This is the procedural rule confirming that ordinance is the initiation mechanism.

Specific vs. general. § 2-5-151 sets up the process for charter-based recall, referendum, and initiative procedures generally. But it doesn't apply to deannexation, because §§ 6-51-201 to -204 are the specific statute for deannexation. Keough v. State. Likewise, charter provisions that authorize citizen-initiated referenda generally don't reach deannexation; the statute controls.

Vollmer v. City of Memphis. The Tennessee Supreme Court directly addressed whether the state constitution creates a citizen right to vote on annexation matters. The Court held no:

• Article XI, § 9 gives the legislature exclusive authority over municipal boundary methods.
• General language in Article I, § 1 and Article XI, § 16 (declaration of rights and inviolability clauses) cannot override the specific grant in Article XI, § 9.

The Court reasoned: "Legislative powers enumerated in one clause must be defined and exercised with reference to limitations and requirements made in other clauses. . . . The general language of one clause should not be permitted to render ineffective the express or specific provisions of another clause." Vollmer, 792 S.W.2d at 448.

Federal and state precedent on annexation. Hunter v. Pittsburgh (1907): annexation is a matter of state law, and the state can adjust municipal boundaries without violating individual residents' constitutional rights. Deane Hill Country Club v. Knoxville (6th Cir. 1967): annexation doesn't constitute a taking; affected residents have no due process right to a vote unless the state statute provides one. State ex rel. Wood v. City of Memphis (Tenn. 1974): same. Williams v. City of Nashville (1891): inclusion in city limits is not a taking; the increased burden of municipal services is presumed equaled by the increased advantages.

Common questions

Who can start a deannexation in Tennessee?

Only the city or town legislative body, by ordinance. Residents who want their territory deannexed must persuade the legislative body to act; they cannot independently initiate the process.

What if my city has a charter that allows citizen-initiated referenda generally?

Doesn't help for deannexation. § 2-5-151 and charter provisions for general referenda don't reach deannexation, which is specifically governed by §§ 6-51-201 to -204.

Can residents block a deannexation that the city wants?

Yes, under § 6-51-201(b)(3). After the city passes a contraction ordinance, 10% of registered voters in the territory can file a petition within 75 days. That triggers a referendum at the next general election. If less than a majority votes for deannexation, the ordinance is void.

Can a court force a deannexation?

The opinion didn't address this directly, but under Vollmer, the legislature's framework is exclusive. A court can review a deannexation for procedural compliance with the statute, but the substantive decision is the legislative body's, not the court's.

Why doesn't Article I, Section 1 ("all power inherent in the people") give residents a deannexation right?

Vollmer answered this. Article I, Section 1 is general; Article XI, Section 9 is specific. The specific governs. The legislature, exercising its Article XI, Section 9 authority, set out the deannexation process and didn't include a citizen-initiation mechanism. Article I, Section 1 doesn't add one.

What about due process or equal protection?

Federal cases (Hunter v. Pittsburgh) and Tennessee cases (Vollmer; State ex rel. Wood v. Memphis) hold that annexation/deannexation decisions don't raise constitutional concerns when the state follows its statutory procedure. The exception is invidious discrimination (e.g., racial gerrymandering), which raises equal protection problems, but those are separate from the citizen-vote question.

Citations

Tenn. Code Ann. §§ 6-51-201 to -204 (deannexation); § 2-5-151 (charter referendum procedures). Tenn. Const. art. I, § 1; art. XI, § 9 (Municipal Boundaries Clause); art. XI, § 16. Cases: Vollmer v. City of Memphis, 792 S.W.2d 446 (Tenn. 1990); Keough v. State, 356 S.W.3d 366 (Tenn. 2011); Hunter v. Pittsburgh, 207 U.S. 161 (1907); Deane Hill Country Club, Inc. v. Knoxville, 379 F.2d 321 (6th Cir. 1967); State ex rel. Wood v. City of Memphis, 510 S.W.2d 889 (Tenn. 1974); State ex rel. Vicars v. Kingsport, 659 S.W.2d 367 (Tenn. Ct. App. 1983); Williams v. City of Nashville, 89 Tenn. 487, 15 S.W. 364 (1891). Prior AG opinion: Op. 12-12 (Feb. 9, 2012).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-045.pdf

Original opinion text

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

June 11, 2013

Opinion No. 13-45

Referendum on Deannexation

QUESTIONS

1. How is a referendum on deannexation under Tenn. Code Ann. § 6-51-201(a) initiated?

2. Do the provisions of Tenn. Code Ann. § 2-5-151 governing the process for initiating a petition for recall, referendum or initiative allow an incorporated city or town to hold a deannexation referendum under a provision in its charter generally authorizing referenda?

3. Does Article I, Section 1 of the Tennessee Constitution require that Tennessee citizens within a territory proposed to be deannexed from an incorporated city or town be allowed to hold a referendum to approve any such deannexation?

OPINIONS

1. Under Tenn. Code Ann. § 6-51-202, any referendum under Tenn. Code Ann. § 6-51-201(a) is initiated when the incorporated city or town legislative body passes an ordinance providing for it.

2. No. The process for deannexation in an incorporated city or town, including the conducting of any referendum regarding such deannexation, is governed by the specific provisions of Tenn. Code Ann. § 6-51-201 to -204.

3. No.

ANALYSIS

1. The Tennessee Constitution establishes the process for the creation and alteration of municipalities and their boundaries. The "Municipal Boundaries Clause" of the Tennessee Constitution states in pertinent part:

The General Assembly shall by general law provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered.

Tenn. Const. Art. XI, § 9 (emphasis added).

The General Assembly has established the procedure for changing municipal boundaries at Tenn. Code Ann. §§ 6-51-101 to -410 and specifically addressed the possible contraction or deannexation of territory from an incorporated city or town at Tenn. Code Ann. §§ 6-51-201 to -204. The deannexation of territory from an incorporated city or town is governed by the following procedure:

(a) Any incorporated city or town, whether it was incorporated by general or special act, may contract its limits within any given territory; provided, that three fourths (3/4) of the qualified voters voting in an election assent thereto.

(b)(1) Any incorporated city or town, whether it was incorporated by general or special act, may after notice and public hearing, contract its limits within any given territory upon its own initiative by ordinance when it appears in the best interest of the affected territory.

(2) Such contraction of limits within any territory shall not occur unless a majority of the total membership of the city legislative body approves such contraction.

(3) Such contraction of limits within any territory shall not occur if opposed by a majority of the voters residing within the area to be deannexed. The concurrence of a majority of the voters shall be presumed unless a petition objection to deannexation signed by ten percent (10%) of the registered voters residing within the area proposed to be deannexed is filed with the city recorder within seventy-five (75) days following the final reading of the contraction ordinance. If such petition is filed, a referendum shall be held at the next general election to ascertain the will of the voters residing in the area that the city proposes to deannex. The ballot shall provide a place where voters may vote for or against deannexation by the city. If a majority of those voting in the referendum fail to vote for the deannexation, the contraction ordinance shall be void and the matter may not be considered again for two (2) years. If a majority vote for deannexation, the ordinance shall become effective upon certification of the result of the referendum.

Tenn. Code Ann. § 6-51-201. The referendum referenced in Tenn. Code Ann. § 6-51-201(b)(3) "shall be held under the provisions of an ordinance to be passed for that purpose." Tenn. Code Ann. § 6-51-202.

This Office recently explained this deannexation process: "[U]nder current deannexation law, an incorporated city or town may contract its limits upon the approval of three fourths of the qualified voters. The city or town must provide for the election by ordinance. An incorporated city or town may in the alternative, by ordinance, contract its territorial limits. That contraction may not occur if opposed by a majority of the voters residing within the area to be annexed. Thus, in either case, the city or town legislative body must pass an ordinance before deannexing territory within its limits." Tenn. Att'y Gen. Op. 12-12 at 3 (Feb. 9, 2012).

2. The aforementioned specific process for conducting elections on referendums concerning deannexation would control and supersede any governmental entity's charter provisions generally allowing referendum elections as well as the more general provisions of Tenn. Code Ann. § 2-5-151(a) setting forth the process a governmental entity must follow to conduct a referendum or recall authorized by that entity's charter. See, e.g., Keough v. State, 356 S.W.3d 366, 371 (Tenn. 2011). Thus, any election to vote on a deannexation proposal must be conducted in the manner established by the General Assembly in Tenn. Code Ann. §§ 6-51-201 to -204.

3. Any referendum on deannexation must be conducted as required by Tenn. Code Ann. §§ 6-51-201 to -204. Article I, Section 1 of the Tennessee Constitution does not grant to Tennessee citizens the constitutional right to initiate a different type of referendum to determine whether their property should be allowed to be deannexed and placed back within the unincorporated county territory. This section provides:

That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

Tenn. Const. Art. I, § 1.

The Tennessee Supreme Court has specifically concluded that neither Article I, Section 1 nor Article XI, Section 16 of the Tennessee Constitution creates a constitutional right for citizens to vote on annexation questions. Vollmer v. City of Memphis, 792 S.W.2d 446, 448 (Tenn. 1990). The Court observed that the General Assembly had enacted the annexation statute at issue in Vollmer in accord with the express provisions of the Municipal Boundaries Clause of the Tennessee Constitution. The Court then noted that this express grant of discretionary authority to the General Assembly to develop the appropriate process for annexation matters took precedence over the general language of Article I, Section 1 and Article XI Section 16, explaining:

In construing the Constitution, the whole instrument must be taken into consideration, and no part so construed as to impair or destroy any other part. Legislative powers enumerated in one clause must be defined and exercised with reference to limitations and requirements made in other clauses. Every clause should be given effect. The general language of one clause should not be permitted to render ineffective the express or specific provisions of another clause.

Id.

More broadly, both federal and Tennessee courts have held that in annexation cases, absent some showing of invidious discrimination, there is no equal protection or due process argument that can successfully be made when the statute is properly followed. Hunter v. Pittsburgh, 207 U.S. 161, 178-79 (1907); Deane Hill Country Club, Inc. v. Knoxville, 379 F.2d 321, 325 (6th Cir. 1967), cert. denied, 389 U.S. 975 (1967); State ex rel. Wood v. City of Memphis, 510 S.W.2d 889, 892 (Tenn. 1974); State ex rel. Vicars v. Kingsport, 659 S.W.2d 367, 369-70 (Tenn. Ct. App. 1983). See also Williams v. City of Nashville, 89 Tenn. 487, 493, 15 S.W. 364, 365 (1891).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Steve McManus
State Representative
Suite 20 Legislative Plaza
Nashville, Tennessee 37243