6 minute read
Let Me Stop You Right There: State Preemption of Local Authority is a Nationwide Trend
In the spring of 2023, Tennesseans couldn’t escape news of friction between the General Assembly and local city leaders. Making headlines in Middle Tennessee were bills that seemed aimed at urban areas, some with specific impacts in Metro Nashville alone. Among these were laws affecting local governance of police, cityowned facilities, and the structure of government.
Legislation during this session relating to police oversight boards resulted in the effective dissolution of the Nashville and Memphis organizations.1 The boards for the Metro Nashville Airport Authority and the Metro Sports Authority were vacated and reconstituted to provide the state with seats,2 the size of the Metro Nashville City Council was halved,3 and changes to the Convention Center Authorities Act of 2009 restricted Nashville’s use of funds generated by its flagship convention hall, Music City Center.4 Finally, enabling legislation for metropolitan governments was revised regarding “[r]equired votes for improvement to public facilities,”5—a complicated way to make it easier for NASCAR to hold races at the Nashville fairgrounds. Predictably, litigation ensued.6
The session’s preemptive legislation was not limited to urban areas, however. From the abrogation of the pending ordinance doctrine7 to the prohibition against requiring that corrections officers live in the area they serve,8 from the “de-annexation” law allowing certain property owners to remove themselves from a municipality9 to the creation of a state-wide food truck fire permit regime,10 there was no shortage of fodder for discussion about local control, and this is a conversation not limited to the Volunteer State.
The National League of Cities has referred to the last several years as “The Era of Preemption.”11 The League, which represents 49 state municipal leagues and over 2600 cities—1566 of which are in the South—notes that actions to assert state control over local government decisions are accomplished both through express preemption and Dillon’s Rule provisions.12
Dillon’s Rule is a canon of construction that calls for strict and narrow construction of local governmental authority. The Tennessee Supreme Court has identified “shortcomings” with Dillon’s Rule, has articulated several exceptions to it, and has acknowledged that it is within the Court’s power to abrogate the rule.13 However, the Court has also acknowledged the “constitutional reality that, with limited exceptions, local governments are creatures of the state and possess no more authority than has been conferred upon them by the General Assembly,” which justifies continuation of Dillon’s Rule in the state.14
While it does appear that increased local preemption legislation has a correlative relationship to states where Republicans control the legislative and executive branches,15 causation cannot be so easily established. John Wilkerson, General Counsel for the Arkansas Municipal League, noted during an April 2023 presentation to the International Municipal Lawyers’ Association that citizens who unsuccessfully ask for a change at the local level will often turn to the state, ostensibly finding that approach easier than further engagement with local leaders or even campaigning for change in local leadership. Wilkerson also suggested that when businesses suspect their plans don’t align with local community interests, it is easier to lobby for statewide action than to take the more traditional approach of adjusting plans, working with local residents, and, failing all else, accepting defeat as part of the democratic process.16
Certainly Nashville’s experience with “the Amp”—a proposed dedicated bus transit lane for the city—bears out the idea that locals can find it easier to influence legislation from the top down. In 2012, the Amp was unveiled by local leaders, with $7.5 million in design and preliminary work approved by the Metro Council. In the face of contentious debate within the community, certain residents sought intervention from state lawmakers. By mid-2015, state legislation had all but killed the Amp, making any such project subject to state approval. Local leaders soon abandoned the project.17
The recent fairgrounds legislation aimed at Nashville would seem to support arguments that businesses will “forum shop” for friendly legislators. Bristol Motor Speedway wanted to establish NASCAR racing on the grounds of the current Nashville Fairgrounds—a proposal endorsed by the Mayor. Community reaction was mixed, and local scuttlebutt was that there were not enough Metro Council votes to secure the deal, since a charter provision required a two-thirds majority vote to approve the necessary demolition on the site. That issue was resolved when State Representative Jon Lundberg (from Bristol) proposed successful legislation intended to invalidate Metro’s Charter provision, reducing the votes needed. The bill became law on May 5, and, by May 26, legislation approving the deal was in front of the Metro Council.18
As evidenced by Nashville’s experience, preemption is not as simple as party politics, and there appears to be no ideological purity from cheerleaders or detractors. The Era of Preemption is a political approach to the legal puzzle of determining how governmental institutions share and balance powers. As the Tennessee Supreme Court reminded us in 2001, the concept of preemption is a doctrine;19 it has no inherent positive or negative value. At the end of the day, preemption is a tool wielded in the implementation of policy preferences that exists in tension with the overlapping jurisdictions of state, local, and federal government. If nothing else, this means that the Era of Preemption is one that will doubtless keep Middle Tennessee’s lawyers engaged—figuratively and literally—for years to come.
Endnotes
1 2023 Tenn. Pub. Ch. 454.
2 2023 Tenn. Pub. Ch. 410; 2023 Tenn. Pub. Ch.488.
3 2023 Tenn. Pub. Ch. 21.
4 2023 Tenn. Pub. Ch. 430.
5 2023 Tenn. Pub. Ch. 364.
6 See, e.g., Cochrane, Emily. “Nashville Sues To Block Law That would Shrink its Council by Half,” N.Y. Times (Mar. 13, 2023), https://www.nytimes.com/2023/03/13/us/politics/nashville-council-lawsuit.html;
Stephen Elliot, “Metro Sues Over State’s Racetrack Changes,” Nashville Scene (May 24, 2023), https://www.nashvillescene.com/news/ pithinthewind/metro-sues-over-state-s-racetrackchanges/article_556adc6c-7591-598d-9398-be8dbe493e4d.html;
Stephen Elliot, “Metro Sues State Again,” Nashville Scene (June 12, 2023), www.nashvillescene.com/news/pithinthewind/metrosues-state-again/article_e7583ce5-1661-5b5a-8da726175f2324ae.html
7 2023 Tenn. Pub. Ch. 453.
8 2023 Tenn. Pub. Ch. 240.
9 2023 Tenn. Pub. Ch. 398.
10 2023 Tenn. Pub. Ch. 390.
11 National League of Cities “City Rights in an Era of Preemption: A State-by-State Analysis 2018 Update,” https://www.nlc.org/resource/city-rights-in-an-era-ofpreemption-a-state-by-state-analysis/
12 Id. at 1.
13 S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706 (Tenn 2001).
14 Id. at 714.
15 “City Rights,” at 3.
16 John Wilkerson, General Counsel, Arkansas Municipal League, CLE Presentation at International Municipal Lawyers’ Association 2023 Mid-Year Conference (April 23, 2023).
17 Joey Garrison, “Nashville MTA: Amp is dead,” The Tennessean (Jan. 22, 2015), https://www.tennessean.com/story/news/local/2015/01/22/nashville-mtaamp-dead/22172861/
18 See Connor Daryani, “State Advances Legislation to Shake up Path to Racetrack Overhaul,” Nashville Scene, (Mar. 22, 2023), https://www.nashvillescene. com/news/pithinthewind/state-advances-legislationto-shake-up-path-to-racetrack-overhaul/article_363fcd2a-c8f3-11ed-a479-0ba5c6b9f0e5.html; 2023 Tenn. Pub. Ch. 364;
Eli Motycka, “Mayor’s office moves on NASCAR deal,” Nashville Post, (May 26, 2023), https://www.nashvillepost.com/politics/metro/ mayor-s-office-moves-on-nascar-deal/article_cbbfd30c-70d9-54f7-8818-5946936e39b6.html
19 See S. Constructors, Inc., 58 S.W.3d at 712.
