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« "The legacy of excellence and a majority will be our goals. " | Main | Drug Pushers at the Legislature » August 6, 2007The 77 Percent Rule
But one small facet of the race, now down to a runoff between former Congressman Bob Clement and former Metro Law Director Karl Dean, interests me. That's the divergent views of Clement and Dean on the Metro charter amendment passed last year that gives voters the right to reject property tax increases. The issue makes me glad I'm not a Nashville voter. Here's why: Clement, whom I consider only marginally competent to run a major city, issued a press release on election night last week slamming Dean for a legal opinion Dean issued last year calling the charter amendment unconstitutional. Dean, who, though he is more liberal, strikes me as much more competent than Clement, in fact did issue that legal opinion. It's non-binding - the charter amendment is law until successfully challenged in court. And that's why the legal opinion is potential political dynamite in the mayoral race. You see, Dean has, to my knowledge, never issued his political position on the charter amendment. He has never said how he voted on it, nor has he said that, as mayor, he would live by it or try to overturn it. Absent that information, Clement can portray Dean as being against the will of the people when it comes to property tax inceases. Voters approved the charter amendment, sponsored by Ben Cunningham's Tennessee Tax Revolt, in a landslide - 77 percent of voters voted for it, and it passed in virtually every precinct in the city. That means it was backed by a majority of Republicans and by a majority of Democrats. That means it was backed by a majority of wealthy voters, middle class voters and poor voters. That means it was backed by a majority of voters at all levels of education. That means it was backed by a majority of blue collar voters and white collar voters. That means it was backed by a majority of whites and by a majority of minorities. In short, the charter amendment giving Nashvillians the right to vote on property tax increases may be the single most popular tax law on the books in Nashville, as voters overwhelmingly expressed a desire for more participatory democracy and more control over tax rates. With his election-night press release Clement has, in effect, promised to live by the expressed will of the people as expressed in their overwhelming support for that charter amendment if he is elected mayor, and put a hard question in front of Karl Dean, whose failure to state allegiance to the will of the people on the issue, combined with that legal opinion issued in his name, leaves open the serious possibility that he would try to overturn the charter amendment rather than submit a property tax increase to a referendum. As I wrote on Nov. 8, 2006, a mayor or city council that challenges the property tax referendum law in court is on shaky political ground. There is conflicting legal opinion as to whether the state constitution permits such referenda, and the city's political establishment will no doubt take the amendment to court to try to overturn it - but that can only happen after the Metro Council passes a property tax hike and sends it to a referendum. But in trying to overturn the charter amendment, the city's political establishment will also be seeking to overturn the expressed will of the people of Nashville, the will of the people they are supposed to serve - and they'll be doing it for the express purpose of ramming through a tax increase after voters have rejected it in a referendum.Bob Clement gets that. He also gets that when you're asking voters to make you their mayor, it's wise not to go against 77 percent of them on a major issue. If Karl Dean cares what the people of Nashville think about property tax rates and participatory democracy, he'll soon declare that, if elected mayor, he will abide by the referendum requirement and direct his legal department not to challenge it in court. I'm thrilled that I don't have to go into a voting booth next month and choose between them. Update: Buried deep in a Rex in the City roundup in today's Nashville City Paper: About the property tax opinion, Dean said the Law Department, which he then headed, was required to provide the opinion when the Metro Council requested it and said he has no intention of challenging the amendment if he wins the election.Well, good. Posted in Nashville
Comments
Well, fear not...if you are looking for a Mayoral candidate who will ask his law director to make political, not legal, opinions in order to play to the mob; I think Bob Clement is the right guy for you. Karl Dean's legal opinion cited examples of State law which could be used to challenge the referendum. Instead of attacking the person who wrote the opinion, I think the smart thing to do would be to lobby state legislators to change those provisions so that the referendum would be on a solid legal footing. Posted by: Sean Braisted at August 6, 2007 3:34 PMGood post. Dean baffles me. Ostensibly he is a smart guy but he got slammed on this. His stated intention, to not challenge the amendment, is weak. Does he support it? It seems not. His big issue is education but he offers little in the way of genuine reform. He is against any sort of vouchers and had nothing to say on charter schools. He sent his own kids to private schools... he is selling what he himself chose not to consume. He seems like a good guy and may be competent but he can't help but impress one as an elitest. Posted by: m kennedy at August 6, 2007 4:25 PMSean, you just referred to 77 percent of Nashville voters as "the mob," even though they tend to vote for the Democrat most of the time. As for the legal case, there is conflicting legal opinion on it. As I understand it, there is a case out of Memphis that could be used as precedent to show that the Nashville amendment is constitutional. My guess is, given the huge landslide by which it was approved, whoever is mayor will not try to challenge it in court - especially as the constitutional issue is, at best, murky - because the people of Nashville clearly want control over property tax increases. Posted by: Bill Hobbs at August 6, 2007 7:45 PMYes, indeed, in Nashville the "mob" does tend to vote Democrat in partisan elections; that doesn't mean that every decision they make is within the bounds of the Tennessee Constitution. I would say the same thing if the State Law prohibited Municipalities to set the minimum wage, and the voters in Davidson County defied that to create a living wage. There may be some Memphis case law that could be used to defend the referendum as passed by the Nashville voters, but if you read the decision the overwhelming evidence points to an intent to require that the county legislative body shall set the tax rate. That of course is not to say that an activist court made up of Conservatives will rule against the constitution an state statuatory law in favor of the voters deciding the tax rate, it is simply to say that as the Constitution and State Law is currently to be interpreted, it offers no outlet to allow for the popular vote on taxation. The Metro Legal decision offered many examples...by doing so, it offers the State Legislature that chance to amend the State laws to better articulate the intent of our State Government. I don't want a Legal Director who will write their legal opinions to fit the will of the populace; I want a legal director who will write opinions with the strongest legal foundation as possible. In a similar vein, I want a Mayor who will make the best decisions for Nashville, not necessarily the best political ones. I don't want a populist, I'd sooner have a Conservative to a populist, though my strongest desire would be for a liberal. I don't think we are necessarily getting a Liberal with Dean, but I know we aren't getting a populist...and that is good enough for me. Posted by: Sean Braisted at August 6, 2007 9:00 PMSean, The way the charter amendment works is the Metro council would set the new tax rate, as the constitution provides, and then voters would approve or reject it - just as they already can do with wheel tax increases and local sales tax increases. Some critics say the constitution does not permit county commissions to delegate tax decision making to voters, but that is not what happened with the charter amendment. What happened with the charter amendment is that the voters - the sovereign in our system - gave themselves that power. The county commission is a passive actor in this. They will still set the tax rate, as the constitution provides, but tax rates above a certain level will trigger a referendum in which the people can vote to roll it back. (As I've demonstrated in other posts using data from 10 years of local tax referendum elections in Colorado, voters tend to approve higher taxes at the local level more often than not.) If voters reject or approve the tax rate they are not "setting" the tax rate, as the constitution provides. They are merely ratifying or rejecting the rate set by the council. The Council is then free to set another tax rate, and if it is below the trigger level there would be no referendum. Also, the charter amendment does not permit voters to initiate a tax increase or tax decrease via referendum. I've read the applicable parts of the state constitution and it has no language prohibiting voters from amending their city or county charters to give themselves the rights and powers outlined above. Also, voters already have the right to accept or reject increases in the wheel tax or local sales tax, so clearly the constitution as a whole is not opposed to the concept of voters having final say on tax rates set by the county commission. It is, at best, a murky legal situation. Posted by: Bill Hobbs at August 7, 2007 8:14 AMThe opinion is very weak which lends credence that it was slanted to reach a desired conclusion rather an objective exposition of the law: Most of the opinion is filled with quotations from the code or constitution that don't deal with the specific question, and from which Dean infers a great deal more than meets the eye. It discusses only one case in any detail that dealt with a tax referendum, the Gibson Co. case which applied to a private act for a special school district and not to the statute authorizing creating a consolidated county government for Davidson County. It barely mentioned, and then only in a footnote, that there were two recent Tennessee Attorney General’s opinions that held that tax referendums were permissible, but never analysed those opinions or attempts to distinquish those cases from the Metro Charter amendment in question. In Tennnessee, the state Attorney General is a constitutional officer appointed by the Supreme Court, and his opinions are accorded great deference especially on matters of governmental power, at least until the Court speaks. For Karl Dean to fail to discuss and distinquish those opinions from the instant case makes the opinion he rendered rather suspect. Posted by: Micheal Deal at August 7, 2007 1:44 PMPost a comment
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