Can the Tennessee legislature extend the term of the Shelby County General Sessions Court Clerk so the election lines up with other Shelby County offices?

Subject

Opinion No. 13-49, Term of Shelby County General Sessions Court Clerk, July 1, 2013

Plain-English summary

Shelby County's General Sessions Court Clerk is a position originally created by Chapter 123 of the 1941 Tennessee Private Acts and last amended on election timing by Chapter 113 of the 1957 Private Acts. The 1957 amendment set a four-year term starting in 1960, with elections every four years thereafter, on the first Thursday in August.

Rep. Karen D. Camper asked whether the General Assembly could pass a new private act extending the term of the sitting clerk to August 2018, moving the election to that year so the position lines up with other Shelby County elected officials' election cycles.

The AG concluded yes, with one condition: the act must include a local-approval clause. The General Assembly has broad authority to amend private acts that create county offices. The Tennessee Constitution gives the legislature power "to ordain and establish" inferior courts and the supporting offices (Tenn. Const. art. VI, § 1), and that includes court clerks. Article XI, Section 9 of the Tennessee Constitution prohibits abridging (shortening) the term of a county office by special, local, or private act, but the AG read prior opinion 05-013 to mean it does not prohibit extending a term.

But Article XI, Section 9 contains a separate, mandatory requirement for any private or local act applicable to a particular county: "any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval of a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected." So the amendment must itself require either a two-thirds vote of the Shelby County Commission or a majority vote in a Shelby County election.

Without that local-approval clause, the act is "void and of no effect."

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.

The August 2018 date referenced in the question request is long past. Anyone considering a similar election-consolidation private act for a county office today should re-verify the Tennessee Supreme Court's current treatment of the "extending vs. abridging" distinction under Art. XI, § 9, and confirm the local-approval mechanics, which have not been disturbed but have been the subject of subsequent litigation on adjacent issues.

Background and statutory framework

Origin of the position. Chapter 123 of the 1941 Tennessee Private Acts established the General Sessions Courts for Shelby County. The 1941 Act, available through the CTAS website, included Section 13 governing the Clerk's election.

1957 amendment to Section 13. Chapter 113 of the 1957 Private Acts revised Section 13 to provide that Vance Griffin would serve initially, and thereafter the Clerk would be elected at the next general election and at every four-year general election thereafter, on the first Thursday in August beginning in 1960.

General Assembly's plenary power. The Tennessee General Assembly has unlimited legislative power except as restrained by the U.S. Constitution and the Tennessee Constitution. Mayhew v. Wilder, 46 S.W.3d 760, 770 (Tenn. Ct. App. 2001) (citing Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229 (1912); Motlow v. State, 125 Tenn. 547, 145 S.W. 177 (1912)).

Court-creation power. Article VI, Section 1 of the Tennessee Constitution vests the General Assembly with power "to ordain and establish" inferior courts, including General Sessions Courts. The power to create the court necessarily includes the power to create supporting offices like the Clerk. Hodge v. State, 135 Tenn. 525, 188 S.W. 203 (1916).

Restriction on abridging terms. Article XI, Section 9 provides in pertinent part:

The General Assembly shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term for which such public officer was selected.

The AG's prior opinion 05-013 (Jan. 26, 2005) read this to forbid shortening a term but not extending it. Extending a term doesn't remove the officer, abridge the term, or alter the salary; it lengthens the time the officer serves.

Local approval requirement. The second clause of Article XI, Section 9, as relevant here, voids any private or local act applicable to a particular county or municipality unless the act by its terms "either requires the approval of a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected."

The practical effect. A bill amending Chapter 123 to extend the GS Clerk's term to August 2018 must include either:

• A two-thirds-of-Shelby-County-Commission approval clause; or
• A majority-of-Shelby-County-voters approval clause.

If neither is present, the bill is void under Article XI, § 9.

Common questions

Can the legislature shorten an elected county officer's term mid-term?

No. Article XI, § 9 expressly prohibits a private or local act that removes the incumbent, abridges the term, or alters the salary before the end of the term. The opinion treats extending as the reverse case and concludes that's allowed.

Why does extending need local approval if the constitutional prohibition only mentions abridging?

Article XI, § 9 has two distinct clauses. The first prohibits removal, abridgment, or salary alteration. The second requires local approval for any private or local act applicable to a particular county. Extending a term is a private or local act applicable to Shelby County, so it triggers the local-approval requirement even though it isn't an abridgment.

What if the Shelby County Commission won't give two-thirds approval?

The bill can require approval by majority vote of the Shelby County citizens at an election instead. The choice between the two mechanisms is the legislature's; it just has to pick one and state it in the bill.

Could the legislature simply move the position from elected to appointed?

That would be a substantive structural change beyond what this opinion addressed. The opinion is narrower: the question was about extending the term and moving the election cycle. Restructuring the office itself would raise other constitutional and statutory issues (including how the Clerk fits within the Article VI court structure) and would still need local approval under Art. XI, § 9.

Could the same approach be used for clerks in other counties?

The reasoning is general. The General Assembly can amend private or local acts creating county offices, can extend (but not abridge) terms by private act, and must include local-approval clauses to make the act effective. The opinion's analysis would apply to similar private-act court clerks elsewhere, subject to any county-specific charter or home-rule features that would complicate the picture (e.g., Davidson County's metropolitan government).

What happened to the underlying proposal?

The opinion only addressed legal authority; it did not predict legislative outcomes. The August 2018 timing referenced in the request has long passed. Anyone tracking the current Shelby County General Sessions Clerk election cycle should check the latest version of the relevant private acts.

Citations

Tenn. Priv. Acts, ch. 123 (1941) (Shelby County General Sessions Courts); Tenn. Priv. Acts, ch. 113, § 1 (1957) (election timing amendment). Tenn. Const. art. VI, § 1 (court creation); art. XI, § 9 (abridging-term prohibition and local-approval requirement). Cases: Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001); Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229 (Tenn. 1912); Motlow v. State, 125 Tenn. 547, 145 S.W. 177 (Tenn. 1912); Hodge v. State, 135 Tenn. 525, 188 S.W. 203 (1916). Prior AG opinion: Op. 05-013 (Jan. 26, 2005).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-049.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

July 1, 2013

Opinion No. 13-49

Term of Shelby County General Sessions Court Clerk

QUESTION

May the General Assembly amend Chapter 123 of the 1941 Private Acts to extend the term of the Shelby County General Sessions Court Clerk who is serving upon the effective date of such amendment to August 2018 and move the election for this position to the first Thursday in August 2018 so that this position will be on the same election cycle as other elected officials in Shelby County?

OPINION

Yes, provided that the legislation, by its terms, requires approval by either a two-thirds vote of the county commission or a majority vote of the citizens of Shelby County.

ANALYSIS

Chapter 123 of the 1941 Tennessee Private Acts ("Chapter 123") establishes the General Sessions Courts for Shelby County. Section 13 of this Act, as amended by Section 1 of Chapter 113 of the 1957 Tennessee Private Acts ("Chapter 113"), defines the process for electing the Clerk of the Court of the Shelby County General Sessions Court in relevant part as follows:

Vance Griffin, a citizen of Shelby County, is hereby designated and appointed as Clerk of said Court of General Sessions, to serve from and after the first day of the month following the enactment hereof, at and after which time the Clerk of the Circuit Court of Shelby County shall no longer act as Clerk of the said Court of General Sessions.

The said Vance Griffin shall serve as such Clerk until the next general election held pursuant to law and until his successor is duly elected and qualified. At such election a Clerk of said Court of General Sessions shall be elected to serve until the general election to be held on the first Thursday in August, 1960, at which time and every four years thereafter a Clerk of said Court of General Sessions shall be elected for a term of 4 years. Such Deputy Clerks and assistants to the Clerk as may be necessary for the proper operation and administration of the duties of said office of the Clerk of the Court of General Sessions shall be appointed and their compensation fixed in the same manner as is now provided by law for the appointment and the fixing of compensation of Deputy Circuit Court Clerks upon petition by the Clerk to a Judge of the Circuit Court.

Tenn. Priv. Acts, ch. 113, § 1 (1957).

The General Assembly possesses the authority to amend Section 13 to extend the current term of the Shelby County General Sessions Court Clerk who is serving on the effective date of such amendment to August 2018 and to move the election for this position to the first Thursday in August 2018. The General Assembly has unlimited power of legislation, except so far as it is restrained, expressly or by necessary implication, by the Constitution of the United States and the Constitution of Tennessee. Mayhew v. Wilder, 46 S.W.3d 760, 770 (Tenn. Ct. App. 2001) (citing Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229 (Tenn. 1912)); Motlow v. State, 125 Tenn. 547, 566, 145 S.W. 177, 182 (Tenn. 1912). No constitutional barrier exists to the General Assembly making the aforementioned changes to Section 13. The Tennessee Constitution vests the General Assembly with the power "to ordain and establish" inferior courts, such as General Sessions Courts. Tenn. Const. art. VI, § 1. This power would include the creation of positions supporting these courts, such as the Shelby County General Sessions Clerk. See Hodge v. State, 135 Tenn. 525, 530-37, 188 S.W. 203, 204-05 (1916).

Nor does Article XI, Section 9, of the Tennessee Constitution prevent the General Assembly from extending the Court Clerk's term. This provision provides in relevant part that "[t]he General Assembly shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term for which such public officer was selected." Tenn. Const. art. XI, § 9 (emphasis added). This Office has previously opined that while this constitutional provision prevents the General Assembly from abridging or shortening the term of a county or municipal office, it does not prevent the General Assembly from altering the terms of any such office by extending it. See Tenn. Att'y Gen. Op. 05-013 at 1-2 (Jan. 26, 2005).

Article XI, Section 9, of the Tennessee Constitution does nonetheless require that "any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval of a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected." Thus, the General Assembly to amend Section 13 must require that any such amendment be approved by either a two-thirds vote of the county commission or a majority vote of the citizens of Shelby County.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:

The Honorable Karen D. Camper
State Representative
32 Legislative Plaza
Nashville, TN 37243-0187