IN THE CHANCERY COURT OF TENNESSEE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS, SHELBY COUNTY FLOYD BONNER, Plaintiff, v. Docket No: C.H- 2 3- 35% Part: zu LINDA PHILLIPS, in her official Capacity as Shelby County Administrator of Elections, SHELBY COUNTY ELECTION COMMISSION, And in their official capacities all Members of the SHELBY COUNTY ELECTION COMMISSION, including Mark H. Luttrell, Steve Stamson, Bennie Smith, Frank Uhthorn, and Vanecia Kimbrow, {| [> SHecey éounry, i CHANGERY COURT t i MAR 14 2023 jes it MEGS &M Defendants. COMPLAINT FOR DECLARATORY JUDGMENT, TEMPORARY AND PERMANENT INJUNCTIVE RELIEF To the Honorable Chancellors of the Chancery Court of the Thirtieth Judicial! District at Memphis, Shelby County: COMES NOW the Plaintiff, Floyd Bonner (hereinafter also referred to as the “Plaintiff), by and through undersigned counsel of record, pursuant to Tenn. Code Ann. § 29-14-101, ef seg. and Tenn. R. Civ. P. 57, and submits this Complaint for Declaratory Judgment, Temporary and Permanent Injunctive Relief, pursuant to Tenn. R. Civ. P. 65, against Defendants, Linda Phillips, in her official capacity as Shelby County Administrator of Elections, the Shelby County Election Commission, Mark H. Luttrell, in his official capacity,Steve Stamson, in his official capacity, Bennie Smith, in his official capacity, Frank Uhihomn, in his official capacity, and Vanecia Kimbrow, in her official capacity (collectively hereinafter referred to as the “Defendants’). In support of these causes of action, Plaintiff would show unto this Honorable Court as follows: | PARTIES 4. Plaintiff, Floyd Bonner is a resident of Memphis, Shelby County, Tennessee and a candidate for the office of Mayor in the upcoming Memphis Municipal Election scheduled to be conducted on October 5, 2023. ae Defendant Linda Phillips is the Administrator of Elections for the Shelby County Election Commission and, as such, is responsible for conducting and supervising the October 5, 2023 Memphis Municipal Election. : 3. Defendant Shelby County Election Commission (‘SCEC") is the duly organized and authorized governmental office within Shelby County Government charged with the responsibilty for conducting and supervising the October 5, 2023 Memphis Municipal Election. 4, Defendant Mark H. Luttrell is Chairman of the SCEC and will be responsible for overseeing, conducting, and supervising the October §, 2023 Memphis Municipal Election. 5. Defendant Steve Stamson is a member of the SCEC and will be responsible for overseeing, conducting, and supervising the October 5, 2023 Memphis Municipal Election.6. Defendant Bennie Smith is Secretary of the SCEC and will be responsible for overseeing, conducting, and supervising the October 5, 2023 Memphis Municipal Election. 7. Defendant Frank Uhlhorn is a member of the SCEC and will be responsible for overseeing, conducting, and supervising the October 5, 2023 Memphis Municipal Election. 8. Defendant Vanecia Kimbrow is a member of the SCEC and will be responsible for overseeing, conducting, and supervising the October 5, 2023 Memphis Municipal Election, 9. Hereinafter, whenever the term "Defendants” is used, it is meant and shall collectively refer to all of the foregoing Defendants, I. JURISDICTION & VENUE 10. This Court has jurisdiction to hear this matter and declare rights, status, and other legal relations pursuant to Tenn. Code Ann. § 29-14-102, ef seq. 11. Venue for this cause of action is proper in Shelby County, Tennessee, pursuant to Tenn. Code Ann. § 20-4-101. Il, STATEMENT OF FACTS a. Candidacy for the Office of Mayor 12. On or about October 25, 2022, Floyd Bonner (‘Mr. Bonner” or “Plaintif") announced his intention to run for the office of Mayor of City of Memphis and to be a candidate in the Memphis Municipal Election scheduled to be held on October 5, 2023. 13. Pursuant to the Campaign Financial Disclosure Act at T.C.A § 2-10-105, before any monies are received or spent (except for incidental expenditures in decidingwhether to run for office), Plaintiff was required to certify the name and address of a political Treasurer with the SCEC. 44. Mr. Bonner has filed documents with the SCEC certifying the name of his Treasurer for the October 5, 2023 Memphis Municipal Election. 15. Following the certification of a Treasurer, Mr. Bonner has raised monies for the October 5, 2023 Memphis Municipal Election. 16. Since announcing his candidacy for the office of Mayor of the City of Memphis in the October 5, 2023 Memphis Municipal Election, Floyd Bonner has filed one (1) or more Treasurer Reports with the SCEC. b. Floyd Bonner’s Residency 17. Mr. Bonner is a current resident of Memphis, Tennessee. 48. Mr. Bonner is a lifelong resident of Shelby County, Tennessee. 19. Mr. Bonner'’s business, professional, educational and personal pursuits have involved the City of Memphis over the course of his lifetime. 20. Mr. Bonner is currently serving his second consecutive term as Sheriff of Shelby County, Tennessee. 21. The City of Memphis is located within Shelby County, Tennessee. 22, Mr. Bonner will not have been a resident of the City of Memphis for a period of time five (5) years or longer preceding the October 5, 2023 election. ¢. Referendum Ordinance No. 1852 23. On November 8, 1966 pursuant to Article XI, § 9 of the Tennessee Constitution, Memphis voters approved Referendum Ordinance 1852 which adopted Home Rule.24. The Home Rule Amendment created the Mayor-Council form of government and continued all laws constituting the previous Charter, except those in conflict with the Amendment. 25. The fourth unnumbered paragraph of Section 4 of Referendum Ordinance 1852 provided, in pertinent part, as follows: “..No person shall be elected or appointed as a Councilmember unless he or she shall have been a resident voter and taxpayer of the City of Memphis for not less than five (5) years preceding his or her election or appointment...” 26. The second unnumbered paragraph of Section 4 of Referendum Ordinance 1852 provided, in pertinent part, as follows: “The qualifications of the Mayor shall be the same as those required herein for the members of the Council...” d. Referendum Ordinance No. 4346 27. On November 5, 1996 pursuant to Article XI, § 9 of the Tennessee Constitution the City of Memphis Home Rule Charter was amended by Referendum Ordinance 4346. 28. Memphis voters approved and adopted Referendum Ordinance No. 4346. 29. Referendum Ordinance 4346, inter alia, amended Section 4 of Referendum Ordinance No. 1852 by deleting the second unnumbered paragraph of Section 1. 30. Referendum Ordinance 4346, inter alia, amended Section 1 of Referendum Ordinance No. 1852 by deleting the fourth unnumbered paragraph of Section 1.31. Referendum Ordinance 4346, inter alia, substituted the following language in Section 4 of 1852 for the deleted second and fourth unnumbered paragraphs of Section 1: “Each member shall be a resident, as defined by state election laws, of the City and of the district from which he or she is elected.” 32. The second unnumbered paragraph of Section 4 of Referendum Ordinance 1852, was not deleted or substituted by Referendum Ordinance 4346. 33. The second unnumbered paragraph of Section 4 of Referendum Ordinance 1852 remained as follows after the passage of Referendum Ordinance 4346: “...The qualifications of the Mayor shall be the same as those required herein for the members of the Council. 34. Following the passage of Referendum Ordinance 4346, the Home Rule Charter for the City of Memphis no longer contained a durational residency requirement for members of the Memphis City Council. 36. Following the passage of Referendum Ordinance 4346, the Home Rule Charter for the City of Memphis no longer contained a durational residency requirement for the Office of Mayor. e. 2019 Legal Opinion Provided by the City of Memphis to SCEC 36. _ In 2019, Defendant Linda Phillips on behalf of thé SCEC requested a legal opinion from the City of Memphis regarding the following: “.. qualifications to run for elective office for the City of Memphis.”f. The 2019 Wade Opinion 37. On March 15, 2019, attorney Allan J. Wade responded on behalf of the City of Memphis and advised the SCEC, inter alia, of the following three (3) rules governing the qualifications about which the SCEC sought an opinion: i. *...the qualifications for the Mayor shall be the same as for Council members.” Ji, “As to who is eligible to run for offices of City Council and Mayor, the City's charter has provided since 1966 that no person shall be elected or appointed to the Council unless such person is a ‘resident voter and taxpayer of the City of Memphis”. li, “This has been the requirement for every election since 1967.” 38. Floyd Bonner is a resident voter of the City of Memphis. 39. Floyd Bonner is a resident taxpayer of the City of Memphis. 9. 2022 Legal Opinion Provided by the City of Memphis to SCEC 40. In October 2022, Defendant Linda Phillip on behalf of the SCEC and her counsel requested that the City of Memphis provide a legal opinion “about the residency requirements for the Mayor and Council Members for the City of Memphis.” h, The 2022 Wade Opinion 41. On November 2, 2022, attomey Allan J. Wade responded on behaif of the City of Memphis to Defendant Linda Phillips’ request for a legal opinion and advised the SCEC, inter alia, of the following four (4) rules governing the durational residency requirement about which the SCEC sought an opinion:i. “there are no durational residency réquirements for the office of Mayor.”' ‘The previous requirements have been expressly repealed and replaced’? iii, ‘a person's qualifications to serve as Mayor ... are determined at the time he or she is elected.”* iv. "Referendum Ordinance No. 4346 provides that the Mayor or Council members ‘shall be a resident of the City and of the district from which he or she is elected." 42. _Affer the issuance of the 2022 Wade Opinion, the City Attomey for the City of Memphis (Jennifer Sink), has relied on and recited the Wade Opinion as authoritative. i. SCEC Requests a Second Opinion 43. Apparently, the SCEC was not satisfied with the 2022 Wade Opinion as it sent over a second letter to the City of Memphis through its counsel Jacob Swatley, ostensibly asking the very same question the City of Memphis had answered on both March 15, 2019 and November 2, 2022.4 44, On information and belief, upon the City of Memphis’ receipt of the request from Jacob Swatley, City Attorney Jennifer Sink asked attorney Robert D. Meyers to draft a legal opinion. j. The Robert Meyers Opinion 45. On February 28, 2023, attomey Robert Meyers sent his legal opinion directly to attormey Jacob Swatley.> 1 See, the Wade Opinion, page 4, attached hereto as “Exhibit 4." The following persons were noted to have received a carbon copy of the Wade Opinion — Mark Goins, Tennessee Coordinator of Elections, Beth Henry Robertson, Deputy Coordinator of Elections, Mayor Jim Strickiand and Jennifer Sink, City Attorney. 2 See, the Wade Opinion, page 4. 3 See, the Wade Opinion, page 6. ‘At this time, Plaintiff does not know to whom the request was directed, 5 See, the Robert Meyers Opinion, attached hereto as “Exhibit 2."46. The February 28, 2023, legal opinion from Robert Meyers concluded as follows: .itis my opinion that the five-year residency requirement to run for Mayor of the ity of Memphis survived the enactment of Ref. Ord. No. 4346.- Accordingly, candidates for Mayor of the City of Memphis in the 2023 election must meet the five year residency requirement.” ELECTION BY THE SCEC TO FOLLOW THE ROBERT MEYERS OPINION 47. Following Defendants’ receipt of the legal opinion from Robert Meyers, Defendants placed language on the SCEC website regarding the qualifications for the Office of Mayor it intended to enforce in the City of Memphis Municipal Election on October 5, 2023. 48. Specifically, the language posted on Defendants’ website is as follows: “Candidates for mayor must be a resident of the city for five (5) years preceding the election. (See legal opinion here.)"® 49. The legal opinion to which Defendants’ website link is referring is the February 28, 2023 Robert Meyers Opinion. 50. On information and belief, Defendants did not take any official action by vote or otherwise with regard to its decision to ignore the precedents of all Municipal Mayoral elections since the passage of Referendum Ordinance 4346 and the prior legal opinions from the City of Memphis. 51. On information and belief, the City of Memphis has never provided the SCEC with an opinion that Referendum Ordinance 4346 did not remove from the Memphis Home Rule Charter the durational residency requirement to run for the Office of Mayor. 5 See, cony of SCEC website page attached as “Exhibit 3.”IV. CAUSES OF ACTION COUNT I: REQUEST FOR DECLARATORY JUDGMENT 52. Plaintiff repeats, realleges, and incorporates all foregoing allegations as if set forth herein. 53. —_‘T.C.A, § 29-14-01, et seq., provides as follows: Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder. 54, Pursuant to T.C.A § 29-14-101, ef seq., Plaintiff seeks a judgment declaring that the Memphis Home Rule Charter, as amended by Referendum Ordinance 4346 and approved by the voters on November 5, 1996, complied with Article XI § 9 of the Tennessee Constitution. 56. Pursuant to T.C.A. § 29-14-101, et soq., Plaintiff seeks a judgment declaring that the City of Memphis Home Rule Charter, as amended by Referendum Ordinance 4346, approved by Memphis voters on November 5, 1996, removeid from the Charter the five (5) year durational residency requirement. 86. Pursuant to T.C.A. § 29-14-101, ef seq., Plaintiff seeks a judgment declaring that the City of Memphis Home Rule Charter, as amended by Referendum Ordinance 4346 and approved by Memphis voters on November 5, 1996, does not contain a durational residency requirement to be eligible to run for the office of Mayor. 57. Pursuant to T.C.A § 29-14-101, ef seq., Plaintiff seeks a judgment declaring that the SCEC's requirement that candidates for the office of Mayor in theMemphis Municipal election scheduled for October 5, 2023, be a resident of the City of Memphis for five (5) years is unlawful and contrary to law. 58. Pursuant to T.C.A § 29-14-101, ef seq., Plaintiff seeks a judgment declaring that he is an eligible candidate for the office of Mayor, in the Memphis Municipal Election on October 5, 2023. COUNT II: APPLICATION FOR TEMPORARY INJUNCTION AND PERMANENT INJUNCTION 59. Plaintiff repeats, realleges, and incorporates all foregoing allegations as if set forth herein. 60. Plaintiff seeks a temporary injunction prohibiting Defendants from enforcing the requirement in the Memphis Municipal Election on October 5, 2023, for candidates seeking the office of Mayor to be a resident of the City of Memphis for five (5) years. 61. If the Defendants are allowed to enforce a durational residency requirement, Plaintiff would suffer probable, imminent, and irreparable harm. 62. Plait iff has adequately pled a cause of action for declaratory judgment and is likely to prevail on the merits. 63. The possible harm to Plaintiff and to the public outweighs any harm to. Defendants, thus injunctive relief is appropriate. 64. Plaintiff requests that a permanent injunction issue after a trial on the merits, enjoining and restraining Defendants from violating the Memphis Home Rule Charter, as amended by Referendum Ordinance 4346, by illegally enforcing a durational residency requirement for the office of Mayor in the Memphis Municipal Election on October 5, 2023.PRAYER FOR RELIEF ‘WHEREFORE, PREMISES CONSIDERED, Plaintiff hereby respectfully requests as follows: fe 2. 2 x That process be issued and Defendants be made to appear and answer; A declaration that the City of Memphis Home Rule Charter, as amended by Referendum Ordinance 4346 and approved by the voters on November 5, 1998, complied with Article XI § 9 of the Tennessee Constitution; . A declaration that the City of Memphis Home Rule Charter, as amended by Referendum Ordinance 4348, approved by Memphis voters on November 5, 1996, removed from the Charter the five (5) year durational residency requirement; . A declaration that the City of Memphis Home Rule Charter, as amended by Referendum Ordinance 4346 and approved by Memphis voters on November 5, 1996, does not contain a durational residency requirement to be eligible to run for the office of Mayor; . A declaration that the SCEC’s requirement that candidates for the office of Mayor in the Memphis Municipal election scheduled for October 5, 2023, be a resident of the City of Memphis for five (5) years is unlawful and contrary to the City of Memphis Home Rule Charter; A declaration that Plaintiff is a qualified candidate for the office of Mayor, in the Memphis Municipal Election on October 5, 2023; A temporary injunction prohibiting Defendants from enforcing a five (5) year durational residency requirement for the office of Mayor in the Memphis Municipal Election on October 5, 2023;8. A permanent injunction prohibiting Defendants from enforcing a five (5) year durational residency requirement for the office of Mayor; and 9. Any further relief in law and equity to which Plaintiff is deemed entitled. THIS IS THE FIRST APPLICATION FOR EXTRAORDINARY RELIEF IN THIS CAUSE. Respectfully Submitted, SPENCE PARTNERS. py J -~ Robert L.J. Spence, Jr. Andrew M. Horvath Cat jange Building: 65 Union Avenue, Suite 900 Memphis, Tennessee 38103 Telephone: 901.312.9160 Facsimile: 901.521.9550 Ispence@spencepartnerslaw.com ahorvath@spencepartnersiaw.com jspence@spencepartnerslaw.com Attomeys for PlaintiffDECLARATION |, Floyd Bonner, pursuant to TRCP 72 do hereby declare that | have read the foregoing Complaint and verify under penalty of perjury that the facts contained therein are true and correct to the best of my kno infgrrration and belief. "BouFIAT TO THE CLERK AND MASTER: Defendants shall appear on the day of , 2023, at , Mm. in Part of the Chancery Court of Shelby County for a hearing on a Temporary Injunction as requested in the Complaint and show cause why a Temporary Injunction should not be issued. This the day of 2023, at +m, CHANCELLORLAW OFFICES ae THE WADE LAW FIRM, PLLC ‘5050 Poplar Avenue, Suite 1028 Memphis, Tennessee 38157 ‘Telephone (901) 322-8005 Facsimile (901) 322-8007 November 2, 2022 Linda Phillips Administrator of Elections Shelby County Election Commission 150 Washington Avenue, Suite 205 Memphis, TN 88103 Re: Residency Requirements for Memphis Mayor and City Council Members Dear Linda: I am responding to recent requests from counsel for the Election Commission and from you about the residency requirements for Mayor and Council Members for the City of Memphis. I provided you with guidance by letter dated March 15, 2019 and verbally this year. (A copy of the 2019 Opinion is attached). Apparently, there is still confusion regarding this issue despite my prior advice so I am providing you with a second opinion to clarify any statements in my 2019 Opinion that may not have been erystal clear. LEGISLATIVE HISTORY The City's Charter was restored by the Tennessee Acts of 1879 and was subsequently amended by the Acts of 1905 and 1909 relative to the qualifications for offices of Mayor and the legislative council. + The 1909 Acts created a Mayor Commission form of government to replace the Mayor/Legislative Council form of government created by the Acts of 1879. ‘The 1909 Act largely continued the qualification requirements imposed by the Acts of 1879 and 1905, namely: ‘The qualifications of said Mayor and of the members of said Board of Commissioners shall be those now required by Jaw for the members of the present legislative council, and the Mayor shall have the additional qualifications now provided by law for said office; provided, however, that no 1 The Acts of 1909 adopted the Mayor Commission form of government for the City, which is the predecessor to the present Mayor Council form of government adopted in the City's Home Rule Charter in 1966. See Memphis Ref. Ordinance No. 1852 (Nov. 8, 1966).-2- November 2, 2022 person shall be ineligible to said office because of having heretofore held said office. (Acts 1909, ch. 298, § 2) ‘These requirements carried forward to the Mayor Commission form of government. by the 1909 Act were as follows: No person shall be eligible to a seat in either Board of the Legislative Council who is not a citizen of the United States, or who holds any office or agency under the City of Memphis, County of Shelby, or State of Tennessee (Acts 1905, Ch. 54, Sec. 16); or who has not resided five years next preceding his election in the City of Memphis (Ibid., Acts 1879, ch. 11, secs. 5, 7; Acts 1899, ch. 200, sec. 1); or who is not a frecholder (Acts 1906, ch. 64, sec. 16); or who is in arrears for taxes (Acts 1905, ch. 54, sec. 16; Acts 1879, ch. 11, sec. 7.) No person shall be eligible for the office of Mayor who is not at least thirty years of age, of good moral character, and who has not been a bona fide resident of the City of Memphis for five years next preceding his election, and not in arrears for taxes, or who at the time of his election and qualification holds any other office, or who is directly or indirectly interested in any contract with the City. (Acts 1905, ch. 54, § 6), By Referendum Ordinance No. 1852 Memphis Voters adopted Home Rule pursuant to Article XT, § 9 of the Tennessee Constitution on November 8, 1966. This Home Rule Amendment created a Mayor Council form of government and continued all laws constituting the previous charter except for any laws in conflict with the Home Rule Amendment, which were expressly repealed. See Memphis Ref Ord. No. 1852, § 17 (Nov. 8, 1966). ‘The second and fourth unnumbered grammatical paragraphs of Section 1 of Referendum Ordinance No. 1852 contained the following qualifications for the Legislative Council in the home ruled government! ‘The Council shall consist of thirteen (13) members, six (6) elected from the City at large and seven (7) elected from the seven districts hereinafter described. Each member shall be a resident of the City and each district Councilman shall be a resident of the district from which he or she is elected. There shall be no more than seven (7) districts. No person shall be elected or appointed as a Councilman unless he or she shall have been a resident voter and taxpayer of the City of Memphis for not less than five (5) years preceding his or her election or appointment, or unless he or she shall have resided during the five (5) years preceding his-3- November 2, 2022 or her election or appointment in territory that has been annexed to and at the time of such election or appointment forms a part of the City of Memphis, but it shall not be necessary for the territory in which such person resides to be annexed for five (5) years; nor shall any person be elected or appointed as a member of the Council from a particular council district unless he or she has been a resident of such district for not less than six (6) months preceding his or her election ‘The second unnumbered grammatical paragraph of Section 4 of Referendum Ordinance No, 1852 contained the following qualifications for the Mayor in the home ruled government? The qualifications of the Mayor shail be the same as those required herein for members of the Council, and no candidate for Mayor shall qualify for any other elective office. ‘The City's Home Rule Charter was amended by Referendum Ordinance No. 4346 by referendum vote of Memphis voters in accordance with Article XI § 9 on November 5, 1996 to approve the following Question: QUESTION: Shall the Home Rule Charter of the City of Memphis, Tennessee, be amended to require that the Memphis Electoral System be composed of nine districts, seven of them having the same boundaries as the existing Districts 1 through 7 and being represented, as now, by one Council Member each; that District 8 be composed of all those precincts in the existing Districts 3, 4, 6, and 7, less the 14 precincts needed to reduce District 8's population to approximately one-half the total City's population, and that District 8 be represented by three (3) Council Members elected by position’ that District 9 be composed of all those precincts presently in Districts 1, 2, and 5 plus the 14 precincts needed to increase District 9's population to approximately one-half the City's population, and that District 9 be represented by three (3) Council Members elected by position. That no run-off election will be required for Districts 8 and 9. That each Council Member shall be a resident, as defined by State election laws, of the City and of the District from which he or she is elected. Emphasis Added. Section 1 of Referendum Ordinance 4346 explained: A. Section 1 of the Memphis Referendum Ordinance No. 1852 adopted November 8, 1966 ("P.0.P. Home Rule Amendment"), is hereby amended by deleting the second (2nd) and the fourth (4th) paragraph of Section 1 and by substituting in lieu thereof the following unnumbered grammatical-4- ‘November 2, 2022 paragraphs which shall be placed after the first grammatical paragraph of Section 1, to-wit? ‘That the Council shall be composed of nine (9) districts, with districts 1 through 7, both inclusive, being represented by one (1) council member each and with multi-member districts 8 and 9 each being composed of approximately one-half the city's total population and each being represented by three (3) council members elected by position. There is no runvoff election required for candidates seeking election in multi-member districts 8 or 9. Each member shall be a resident, as defined by state election laws, of the City and of the district from which he or she is elected. B. The following language shall be added immediately preceding the penultimate unnumbered grammatical paragraph of Section 1 of the P.O.P. Home Rule Amendments: ‘The City’s Home Rule Charter has not been amended since Referendum Ordinance 446 to change the qualifications for the Legislative Council and no amendment has changed the language in Section 4 of Home Rule Amendment No. 1852 pertaining the qualification requirements for the Mayor. OPINIONS Presently there are no durational residency requirements for the offices of Legislative Council and Mayor. The previous requirements have been expressly repealed and replaced. # Tennessee's Election Laws defer to the charter of a local government for the qualifications to serve in an elected office for such local government. Referendum Ordinance No. 4346 provides that “[elach member shall be a resident, as defined by state election laws, of the City and of the district from which he or she is elected.” Tennessee's Election Laws define residency in the context of eligibility to vote and the place at which a person may vote. The reference in Referendum Ordinance No. 4846 to ‘Tennessee's Blection Laws was not intended to require that a person qualifying to sorve as Mayor or Council. member be a qualified voter, but only that the provisions of the Election Code that define a person's residence be used to determine whether a person qualifying to serve as Mayor or Council member is a resident “of the City and of the distriet from which he or she is elected.” ‘The principal provision of Tennessee's Election Laws relevant to this determination is Tennessee Code Annotated § 2-2-122. Tennessee Code Annotated § 2- 2-122 equates residency with domicile such that a person can only have one residence for purposes of the Election Code. For the purposes of clarity and completeness the provisions of Tennessee Code Annotated § 2-2-122 most relevant to Memphis are reproduced below, namely? 2 The previous provisions were arguably ambiguous and inimical to the main purposes of Referendum Ordinance No. 4346, which was to remedy discrimination in voting practices.-5- November 2, 2022 § 2-2-122, Residence (@) The determination of whether a person is a resident or where the person resides or has residence for purposes of the election code shall be made in the light of the following principles: (1) The residence of a person is that place in which the person's habitation is fixed, and to which, whenever the person is absent, the person has a definite intention to return; provided, that a person may not register to vote using a business location as the registration address when the sole basis for the person's presence at such location is based on a business or commercial use; (2) A change of residence is generally made only by the act of removal joined with the intent to remain in another place. There can be only one (1) residence; (8) A person does not become a resident of a place solely by intending to make it the person's residence. There must be appropriate action consistent with the intention; (4) A person does not lose residence if, with the definite intention of returning, the person leaves home and goes to another country, state or place within this state for temporary purposes, even if of one or more years duration; (5) The place where a married person's spouse and family have their habitation is presumed to be the person's place of residence, but a married person who takes up or continues abode with the intention of remaining at a place other than whore the person's family resides is a resident where the person abides} () A person may be a resident of a place regardless of the nature of the person's habitation, whether house or apartment, mobile home or public institution, owned or rented; however, a commercial address may not be used for residential purposes, unless the applicant provides evidence of such applicant's residential use of such address: (7) A person does not gain or lose residence solely by reason of the person's presence or absence while employed in the service of the United States or of this state, or while a student at an institution of learning, or while kept in an institution at public expense, or while confined in a public prison or while living on a military reservation; and (8) No member of the armed forces of the United States, or such member's spouse or dependent, is a resident of this state solely by reason of being stationed in this state. (G1) The following factors, among other relevant matters, may be considered in the determination of where a person is a resident: (A) The person's possession, acquisition or surrender of inhabitable property: (B) Location of the person's occupation; (C) Place of licensing or registration of the person's personal property: (D) Place of payment of taxes which aré governed by residences (B) Purpose of the person's presence in a particular place: and (F) Place of the person's licensing for activities such as driving.-6- November 2, 2022 (2) In determining the residency of a person involuntarily confined in a state institution, the mere anticipation of a future grant of living quarters in a specific half-way house shall not be sufficient to establish intent to reside in such half-way house following release from the institution. Finally, a person’s qualifications to serve as Mayor or City Council member are determined at the time he or she is elected. All prior Charter provisions speak of qualifications “for a seat” or qualifications “next preceding” or “preceding” his or her lection. Moreover, Referendum Ordinance No. 4346 provides that the Mayor or Council members “shall be a resident of the City and of the district from which he or she is elected.” Thus, the qualification provisions are requirements to serve not to run for office. ‘Thus, for the purposes of administering City clections, your office should not refuse a candidate's petition based on questions about residency; of course, your office may refuse to place the name of any candidate on the ballot if you have evidence that such a person is ineligible under Tennessee Law to hold any elected office, irrespective of residency. Please let me know if you have any questions concerning these matters. Very truly yours, /s/ Allan). wade CC: Mark Goins, Tn. Coordinator of Elections Beth Henry Robertson, Deputy Coordinator of Elections Mayor Jim Strickland Jennifer Sink, City Attorney‘LAW OFFICES ALLAN J. WADE, PLLC 5050 Poplar Avenue, Suite 1028 Memphis, Tennessee 38157 Telephone (901) 322-8005 Allan J. Wade Brandy S. Partish March 15, 2019 Linda Phillips Administrator of Elections Shelby County Election Commission 150 Washington Avenue, Suite 205 Memphis, TN 38103 Dear Ms. Phillips: I am responding to your email in which you wrote: We are taking a sizeable number of phone calls from people interested in running for elective office for the City of Memphis. My problem is that I have three conflicting documents that lists the qualifications for City of Memphis office. One specifies a minimum ages another specifies a different minimum and the third does not have a minimum age. None of them address the Super Districts and one reference Members of the Board of Education, which suggests that none of them are particularly current. TCA § 8-18-101 suggests that a person has to be 18 to run for office. I couldn‘t find anything on the City website (other than the Charter and the Ordinances) that explained the requirements. So, what do you all think the requirements are? I read the charter and Ordinance 1852 and 2246 but do not know what, if any, court cases might have modified this. I’ve attached what is slightly ahead of a stab in the dark. I really do need this information pretty quickly; we ere taking 3 - 5 calls per day on this topic. I quess I don’t understand the problem. As to who is eligible to run for offices of City Council and Mayor, the City’s charter has provided since 1966 that no person shall be elected or appointed to the Council unless such person is a “resident voter and taxpayer of the City of Memphis.” See Referendum Ordinance No. 1852, § 1. Referendum Ordinance No. 1852, § 4 provides that the qualifications for the Mayor shall be the same as for Council members. This has been the requirements for every election since-2- March 15, 2019 1967. Certainly, the Election Commission knows who is a “resident voter.” The term “resident voter” was construed by the Tennessee Supreme Court in Halbert v. Shelby Cty. Election Comm'n, 31 S.W.3d 246, 249 (Tenn, 2000). At issue was Section 937 of the Charter of the Memphis City Schools, which used the eligibility language in the City’s Home Rule Charter verbatim, including the term “resident voter.” The Supreme Court held in that case “that the term “resident voter” as used in the School Board's charter provision establishing the eligibility requirements for service on the Board of Education of the Memphis City Schools xequires the candidate to possess the legal qualifications which would entitle him or her to vote in the election if registered. We hold also that registration laws do not affect the qualifications for voting; they merely regulate how “voters” may exercise this right. Halbert v. Shelby Cty. Election Comm'n, 31 8.W.3d at 249. So, let's start with the basics of the Election Code. Tenn. Code Ann. § 2-1-105 addresses Voting eligibility and provides that “only qualified voters who are registered under this title may vote at elections in Tennessee. (Emphasis ours) . Tenn. Code Ann. § 2-2-102 addresses qualifications of voters and provides that “A citizen of the United States eighteen (18) years of age or older who is a resident of this state is a qualified voter unless the citizen is disqualified under the provisions of this title or under a judgment of infamy pursuant to § 40-20- 112.” Tenn. Code Ann. § 2-2-122 outlines the principles for determining residency for purposes of the Election Code. In Dunn v. Blumstein, 405 U.S. 330, 336 (1972) the United States Supreme Court struck down a Tennessee durational residency requirement which authorized the registration of only those persons who, at the time of the next election, will have been residents of the State for a year and residents of the county for three months. The Court held that durational residence requirements completely bar from voting all residents not meeting the fixed durational standards. By denying some citizens the right to vote, such laws deprive them of *a fundamental political right...” The Court did hold however that “[i]t is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud. Id. at 348. In response to this holding the City’s Charter was amended by Referendum Ordinance No. 4346 to define residence and durational requirements to be the same as defined by state election laws.-3- March 15, 2019 Tenn. Code Ann. § 2-2-109 provides that a qualified voter may register or have the voter's registration altered at the commission office at any time the office is open, except that applications for registration shall not be processed for twenty- nine (29) days before an election. In sum, we have consistently opined that “resident voter” is the same as a voter qualified to vote in an election under state election laws. Moreover, a qualified candidate for Council or Mayor need only be a resident of the City and a district for 30 days before the election. While the charter provisions relating to City Court Clerk and City Judges have not been amended, it is our opinion that absent a court decision that justifies a five (5) year durational residency requirement for those positions, such a restriction must yield to the holding in Dunn v. Blumstein, Thus, the xules applicable to Mayor and Council members apply to the City Court Clerk and City Judges. I trust I have adequately responded to your inquiry. Very truly yours, /s] dfillan 9. Wade Allan J. Wade Cc: Jim Strickland, Mayor City Council Members Bruce McMullen, City Attorney John Ryder, EsqGLANKLER Serene B RR O N ‘wwew.glankler.com 301.876.1715 smeyers@agankier.co February 28, 2023 VIA US MAIL AND Jacob Swatley, Esq. Harris Shelton 6060 Primacy Parkway Memphis, TN 38119 jswatley@harrisshelton.com RE: ‘Residency requirement for candidates running for the position of Mayor of the City of Memphis on October 5, 2023 Dear Mr. Swatley: Because of my experience as a Commissioner on the Shelby County Election ‘Commission (“SCEC”) City Attomey Jennifer Sink asked me to respond to the SCEC’s question regarding the residency requirement for the Mayor of Memphis, Tennessee directed to the of Memphis, which I have set forth below. QUESTION PRESENTED When must a candidate for Memphis Mayor establish residency in the City of Memphis to be eligible to run for (or hold) that office? SHORT ANSWER ‘A candidate for the position of Mayor of the City of Memphis must have lived within the City limits for the five (5) years preceding the election for Mayor. LEGAL ANALYSIS ‘The legal analysis of your question requires a two-fold analysis. First, we must determine if the Mayor's five (5) year residency requirement survived the enactment of Ref. Ord. No. 4346. ‘Next, we must analyze whether the five year residency requirement will stand up to constitutional scrutiny.Jacob Swatley, Esq. Page 2 February 28, 2023 The five (5) year residency requirement for the Mayor of Memphis survived the enactment of Ref. Ord. No. 4346 Beginning with the Tennessee Legislative Act of 1905, the City of Memphis’ Charter was amended by adding a residency requirement for candidates running for Mayor. The residency requirement for the position of Mayor of the City of Memphis was set at five years. This was continued by the Acts of 1909. This requirement was maintained when the Citizens of Memphis passed the Home Rule Amendment, Reference Ordinance No. 1852 (November 8, 1966). Ref. Ord. No. 1852 established that the Mayor’s qualifications “shall be the same as those required herein for members of the Council,” which required five years of residency. In 1995, in a lawsuit challenging the selection of City Councilman, United States District Court Judge Jerome Tumer for the Westem District of Tennessee, ruled that the electoral system for selecting members of the City Council established in 1968 in accordance with Ref. Ord. No. 1852! violated the Constitution of the United States. In response to Judge Tumer’s ruling, on December 19, 1995, Reference Ordinance No. 4346? was passed by the citizens of Memphis. This ordinance addressed the makeup of the City Council and changed the way citizens of Memphis elected members of the Council. This referendum expressly states that ‘[eJech [council] Member shall be a resident, as defined by state election laws, of the City and of the district from which he or she is elected.” See Ref. Ord. No. 4346, §1. One can see that the caption of the referendum, reproduced in footnote 2 below, addresses only the “election of 13 City Council members” and does not mention the position of Mayor at all, let alone put voters on notice that they were changing the residency requirement for Mayor. Neither did the publication of the Official Ballot by the Election Commission in the Commercial Appeal on October 11, 1996 (Exhibit “A”). Under Tennessee law, interpreting referendums requires an understanding of the “collective intent” of the electorate that voted for the measure. Jordan v. Knox County, 213 S.W.3d 751, 783 (Tenn. 2007), Absent ambiguity, the meaning is interpreted to be that meaning which is “apparent upon the face of the initiative measure.” id, at 781. Applying this instruction to Ref. Ord. No. 4346 you can see that it expressly addresses changing the residency requirement ' “No person shall be elected or appointed as a Councilman unless he or she shall have been a resident voter and taxpayer of the City of Memphis for not less than five (5) years preceding his or her election or appointment, or ‘unless he or she shall have resided during the five (5) years preceding his or her election or appointment in ° teritory that has been annexed to and at the time of such election or appointment forms a part of the City of Memphis, but it shall not be necessary for the territory in which such person resides to be annexed for five (5) years; nor shall any person be elected or appointed as a member of the Council from a particular council district tunless he or she has been a resident of such district for not less than six (6) months preceding his or her election.” See Ref, Ord. No. 1852, §2 2‘An Ordinance to propose an amendment to the charter of the City of Memphis same being Chapter 11 of the Acts of 1879, as amended, pursuant to the provisions of Article XI, Section 9 of the constitution of the state of Tennessee (Chome rule amendment) so as to adopt a plan with will result in the election of 13 city couneil members and to give cach voter the opportunity to vote for and be represented by four council members and to submit the proposed ‘ordinance to the qualified voters of the city of Memphis at the fist general state election to be held November 5, 1996." resolved. period.Jacob Swatley, Esq. Page3 February 28, 2023 for the Council, but itis silent as to the residency requirements of the Mayor. Thus, it is apparent on the face of the referendum (Ref, Ord. No. 4346) that it only addresses the residency requirement for the Council and not for Mayor. Therefore, one could not say that the “collective intent” of the electorate was to change the residency requirement for Mayor. Moreover, Section 2 of Ref. Ord. No. 4346 provides “that all laws constituting the present Charter of the City of Memphis not in conflict with this amendatory Home Rule Ordinance, be and the same are continued in full force and effect, and all laws in conflict therewith are hereby repealed.” See Ref. Ord. No. 4346, §2. Therefore, Ref. Ord. No. 4346 continued “in full force and effect” all laws that are not in conflict with this amendment including the residency requirement for the City Mayor. Thus, the five-year residency requirement for Mayor under Ref. Ord. No. 1852 remained in place.” In addition, repeals by implication are not favored and will only-be found when an itreconcilable conflict or repugnance clearly exists between the early ordinance and the later ordinance. See Oliver v. King, 612 A.W.24 152, 154 (Tenn. 1981). To conclude otherwise, would mean the voters who approved Ref. Ord. No, 4346 were unaware that they were repealing by implication the Mayor’s residency requirement. Based on the foregoing analysis, it is my opinion that the five-year residency requirement to run for Mayor of the City of Memphis survived the enactment of Ref. Ord. No. 4346. Accordingly, candidates for Mayor of the City Memphis in the 2023 election must meet the five year residency requirement. The five (5) year residency requirement for the Mayor of Memphis is constitutional ‘An analysis of the residency requirement for the Mayor of the City of Memphis would not be complete without considering the constitutionality of the requirement. In examining the constitutionality of the five (5) year residency requirement for the position of Mayor of the City of Memphis, I start with the fact that there has not been a constitutional challenge to the Mayor's residency requirement. Late last year, the Sixth Circuit Court of Appeals addressed the issue of candidate residency requirement in Burrell v. Tipton Cnty. Election Comm'n, No. 22-5867, 2022 WL 10225146 (6th Cir. Oct. 18, 2022). In Burrell, the Plaintiff challenged the denial of 2 Temporary Restraining Order he sought against the Tipton County Election Commission by the United States District Court. One of Burrell’s claims was that the mayoral residency requirement of six ‘months violated his First and Fourteenth Amendment rights. The Burrell Court found that when assessing barriers to run for public office the applicable standard of review required by the Supreme Court was that such laws be “closely scrutinized” and found “reasonably necessary to the accomplishment of legitimate state objectives.” Burrell, 2022 WL 10225146 (citing, Bullock * Teon. Code, {§6-3-103 provides that “[nJo person shall be eligible for the office of Mayor unless such person thas resided within the municipality for atleast one (I) year next preceding the election.” However, this requirement oly applies to cities incorporated under the mayor-aldermanic form of government. Tens. Op. Atty. Gen. No. 06- 055, 206 WL 1197448. It does not apply to municipalities formed pursuant to private act, such as the City of Memphis. resolved period.Jacob Swatley, Esq. Page4 February 28, 2023 ¥. Carter, 405 U.S. 134, 144 (1972)). This standard is lower than the standard used to review residency requirement to be an eligible voter. See Dunn v. Blumstein, 405 U.S. 330,336 (1972) (holding “State must show a substantial and compelling reason for imposing durational residence requirements [on the opportunity to vote}.”) The Supreme Court in Bullock focused on a Texas filing-fee requirement for candidates, The Sixth Circuit Court of Appeals has applied Bullock’s standard to durational residency requirements for state or municipal office. Beil v. City of Akron, 660 F.2d 166 (6th Cir. 1981). Beil upheld the City of Akron’s requirement that candidates for the position of ward councilman, have resided for at least one year in the ward they seek to represent. Id. at 167, 169. Beil adopted and applied the same standard of scrutiny from Bullock, determining that “the one year durational residency requirement of the City of Akron is reasonably necessary to effectuate an important municipal interest.” Jd. at 169. In no case has the Sixth Circuit or the Supreme Court demanded that municipalities must affirmatively show that durational residency requirements are “substantially related to an important government interest,” as the Plaintiff in Burrell suggests. Burrell, 2022 WL 10225146, at *4. Rather, the correct standard is whether the requirement is reasonably necessary to effectuate an important government interest. Id. Thus, the Sixth Circuit held that the District Court in Burrell correctly concluded that Mason's six-month durational residency requirement is reasonably necessary to effectuate an important municipal interest. Jd. Municipal interests for durational residency requirements include exposing candidates to the scrutiny of the electorate, protecting the community from outsiders not seriously committed to the community, and having officeholders who are familiar with the problems of the community.’ Joseph v. City of Birmingham, 510 F. Supp. 1319, 1336 (ED. Mich. 1981). In both Joseph and Beil, one-year durational residency requirements were upheld as serving these legitimate interests. Note, that the Supreme Court has upheld even longer residency requirements for state office Sununu v. Stark, 420 U.S. 958 (1975) (affirming a seven-year residency requirement for state senators); Chimento v. Stark, 414 U.S. 802 (1973) (affirming a seven-year residency requirement for governor). While these offices may be more powerful than the position of town or city mayor, “{tJhe smaller governmental unit is equally entitled to protect its smaller self.” Beil, 660 F.2d at 168. The Burrell Court also held that because the length of the residency requirement for the mayor of Mason is proportional to the power of the position, it satisfies the standard of being reasonably necessary to effectuate the town’s interests. ‘Now tuming to the five (5) year residency requirement for the position of Mayor of the City of Memphis, should there be a constitutional challenge in the future, I believe that Memphis’s Mayoral residency requirement will be found constitutional (although I cannot 4 As noted by the District Cour, the municipality's important interests do not have to be affirmatively displayed in a town or city charter alongside the durational residency requirements. In both Bei? and Joseph, these municipal interests were not explicitly advanced in the charter and in both the one-year Gurational residency requirements were upheld. See Beil, 660 F.2d at 167-68; Joseph, 510 F. Supp. at 1337-38. resolved, period.Jacob Swatley, Esq. Page 5 February 28, 2023 guarantee that it will). The bases for my prognostication are: (1) the fact that the five year residency requirement was voted on by the voting citizens of the City of Memphis by referendum; (2) the five (5) year resideney is reasonably necessary to effectuate an important government interest (candidates exposed to the scrutiny of the electorate; protecting the community from outsiders not seriously committed to the community, and having officeholders who are familiar with the problems of the community); (3) the residency requirement is proportional to the power of the position (Memphis is the first or second largest city in Tennessee); and (4) the position of Mayor of the City of Memphis is an especially powerful role. But one example of the power of the Mayor is the fact that he has the sole contracting power for the City of Memphis. Lhope this answers the SCEC’s question. Very truly yours, GLANKLER BROWN, PLLC Robert D. Meyers RDM/met Cc: monice@haglerlaweroup.com Linda phillips@shelbycountytn.zov markluttrellir@email.com mark.goii v Jennifer.sink@memphistn.sov mayor@memphistn.gov 487400858667, v.1 resolved pericd.Shelby County Election Commission City of Memphis Municipal Election—October 5, 2623 Offices to be Elected: Mayor BS City Couneil District 1 City Council District 2 — City Council Distriat 3 City Council District 4 City Council District 5 City Council Distriot 6 City Councit District 7 City Council District 8, Position 4 City Councit District 8, Position 2 City Councit District 8, Position 3 City Councit District 9, Position 1 City Council District 9, Position 2 City Council District 9, Position 3 Memphis Court Clerk Key Dates: First Day to Pick up Petitions Monday, May 22, 2023 First Day for Absentee Request Friday, July 7, 2023 Qualifying Deadline Thursday, July 20, 2023 12:00 Noon Withdrawal Deadline Thursday, July 27, 2023 Voter Registration Deadiine Tuesday, September 5, 2023 First Day of Early Voting Friday, September 15, 2023, Last Day for Absentee Request Thursday, September 28, 2023 Last Day of Early Voting Saturday, September 30, 2023 Election Day ‘Thursday, October 5, 2023 Run-Off (If Required) ‘Thursday, Novernber 16, 2023 Candidates for mayor must be a resident of the city for five (5) years preceding the election.~ (See legal opinion here. Candidates for city council and clerk must be a resident voter of the district they seek to represent. Candidates who have been convicted of a felony must provide a certified copy of the judicial order that restores their citizenship rights to the Election Commission by the qualifying deadiine, ‘There is a $100 filing fee for all candidates. Sorry, no cards or checks—only cash will be accepted for the fling fee. Candidates who receive more than 10% of the votes in their race will have the filing fee refunded.