Discussion Notes 1. See George Lefcoe and Barney Allison, "The Legal Aspects of Proposition 13: The Amador Valley Case," Southern California Law Review 53 (November 1979): 173. See also Fine v. Firestone, 448 So.2d 984 (Fla. 1984). 2. Are there distinctions between these types of procedural limitations and those applicable to the enactment of statutes? 3. In Evans v. Firestone, 457 So.2d 1351 (Fla. 1984) the Florida Supreme Court declared the following initiative amendment invalid on single-subject, and title and summary grounds, and ordered it withdrawn from the ballot: Citizens' Rights in Civil Actions In civil actions: (a) no party can be found liable for payment of damages in excess of his/her percentage of liability; (b) the Court shall grant a summary judgment on motion of any party, when the Court finds no genuine dispute exists concerning the material facts of the case; (c) noneconomic damages such as pain and suffering, mental anguish, loss of consortium, and loss of capacity for the enjoyment of life shall not be awarded in excess of $100,000 against any party. [The] Amendment establishes citizens' rights in civil actions: provides a party in a lawsuit shall not be required to pay more damages than the jury found him/her responsible for personally; requires courts to dispose of lawsuits when no dispute exists over the material facts thus avoiding unnecessary costs; and allows full recovery of all actual expenses such as lost wages, accident costs, medical bills, etc., but limits noneconomic damages to a maximum of $100,000. Why would the proponents of this amendment seek to place it in the state constitution? How does the procedural posture of the amendment in Evans differ from that in Amador Valley? 4. Often more than one state constitutional amendment is submitted to the voters at the same election. State constitutions provide specific requirements for this situation. See Carter v. Burson, 230 Ga. 511, 198 S.E. 2d 151 (1973) (Constitution provided "When more than one amendment is submitted at the same time they shall be so submitted as to enable the electors to vote on each amendment separately."). See also In re Interrogatories Propounded by the Senate, 181 Colo. 1, 536 P.2d 308 (1975). 5. Would a typographical error, resulting in different versions of a state constitutional amendment being approved in the House and Senate before ratification by the voters void the amendment? See State ex rel Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607, 615 (1976). 6. If a portion of a state constitutional amendment is invalid for some reason, can it be "severed," leaving the valid portion in effect? See McWhirter v. Bridges, 249 S.C. 613, 155 S.E. 2d 897 (1967). E. State Constitutional Conventions James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown and Co., 1950), pp. 205-06. Reprinted by permission. The agencies that drew most of the constitutions adopted during the War for Independence had not been specially called for this purpose. This was largely due to the pressure of the times. Massachusetts set the enduring pattern by its procedure in adopting its constitution of 1780: It submitted to the voters the question of calling a constitutional convention; it used that distinct agency for the framing of a constitution, and submitted the convention's product to the voters. This constitution was the political testament of John Adams; as might be expected there was an unusual measure of intellectual leadership behind the whole venture. But the careful double submission to the voters and the use of the separate agency of the convention seem to have come from a wide belief that this was the proper way to do the job. The central idea of the convention took hold readily. But there was much variation in the procedures for calling such bodies and approving their work. Men showed little sense of the high danger of allowing any question to exist about the legitimacy of agencies charged with so basic a task. Potentially, the most serious question was, who might lawfully take the initiative in calling a convention. From the late nineteenth century on, constitutions commonly said that this authority was in the legislature. Before that time the matter was often uncertain. The courts seem never to have claimed the power. Presidents Lincoln and Johnson called conventions in certain seceded states. They claimed authority as commander in chief; Congressional partisans contested the claim, and students have doubted its merit. With these exceptions, the executive branch did not take the initiative in calling constitutional conventions. Pennsylvania, for a brief time, and Vermont until 1867, experimented with a Council of Censors especially charged with the proposal of constitutional changes; in neither case was the device found satisfactory. The legislature might thus have appeared to hold the initiative in constitutional changes, if only by default of other agencies. But two difficulties remained. One was readily answered. Many constitutions, and almost all of those adopted after the 1820's, provided that the voters should pass on amendments proposed by the legislature; from this it was argued that such was by implication the only proper way to amend. The courts held this to be a justiciable question, and found little trouble in answering it. They ruled that a general revision of a constitution, done in convention, was so different from specific amendment that the provision for proposal of specific amendments could not fairly be interpreted to bar general revision by convention. This recognized what had become wellsettled practice, backed by popular acceptance; in 1887 Jameson noted twenty-seven conventions that had been called for constitutional revision under the general authority of the legislature. Rhode Island had a long history of trouble over its constitution, and there alone had judges denied the legislature's power to call a convention. But in 1935, in a decision not without political overtones, the Rhode Island Supreme Court overruled local precedent and held that the legislature might summon a convention even though the constitution did not expressly authorize it. Discussion Notes 1. On the evolution of the constitutional convention, see John Alexander Jameson, A Treatise on Constitutional Conventions (Chicago: Callaghan and Co., 4th Ed. 1887); Note, "State Constitutional Change: The Constitutional Convention," Virginia Law Review 54 (June 1968): 995; Thad W. Tate, "The Social Contract in America, Snow v. City of Memphis 527 S.W.2d 55 (Tenn. 1975) appeal dismissed 423 U.S. 1083 (1976) FONES, Chief Justice. Plaintiffs Snow, et al., filed a declaratory judgment action in the Chancery Court of Shelby County, asserting that the Constitutional Convention of 1971 exceeded the limitation of the call and created a fifth classification of real property when it defined residential property containing two or more rental units as commercial property. An adjudication declaring said amendment unconstitutional, as violative of Article XI, Section 3, Tennessee Constitution and the 14th Amendment, U.S. Constitution, was sought. From a decree sustaining plaintiff's contention, the City of Memphis, the County of Shelby, and the Attorney General of Tennessee, perfected a direct appeal to this Court. Article II, Section 28 of the Constitution of Tennessee was amended, in compliance with the second method prescribed in Article XI, Section 3 of said Constitution. The process was initiated by the Legislature's enacting Chapter 421, as amended by Chapter 597, Public Acts 1968. Said legislation submitted five questions to the electorate; only one of which, Question 3, received approval of the majority of the voters, in November, 1968. The Question 3 call is set out in it entirety in Appendix A. The call provides, in affirmative terms, that Article II, Section 28 of the Constitution shall require the classification of property into three classes, real property, intangible personal property, and tangible personal property, and that the Convention shall classify real property only into four sub-classifica 1774-1787: Revolutionary Theory as a Conservative Instrument," William and Mary Quarterly 22 (July 1965): 375. 2. Could the initiative be used to call a constitutional convention? See Comment, "Convening a Constitutional Convention in Washington Through the Use of the Popular Initiative," Washington Law Review (May 1970): 535. tions, (a) public utility, (b) industrial and commercial, (c) residential, and (d) farm. Delegates were elected to a Constitutional Convention in August, 1970, and in August, 1971 the Convention convened for the purpose of altering and reforming Article II, Section 28 of the Constitution of Tennessee, pursuant to the Question 3 call. On September 14, 1971, the Convention adopted Resolution 74, which was approved by the voters in August, 1972. Resolution 74, now Article II, Section 28 of the Constitution of Tennessee (see Appendix B), in setting out the classification of residential property, added the following: ". . . provided that residential property containing two (2) or more rental units is hereby defined as industrial and commercial property." This action of the Convention is said by the property owners to create a fifth subclassification of real property beyond the limits of the call, in violation of Article XI, Section 3 of our Constitution. The first issue presented by the plaintiffs' attack on the constitutionality of taxing two or more rental units as commercial property depends upon the proper interpretation and application of the phrase in Article XI, Section 3 of our Constitution, proscribing that no amendment shall become effective, "unless within the limitations of the call of the convention." That phrase has been before this Court for interpretation in connection with the Question 3 call in three prior cases. The Question 3 call is substantially different from any prior call of a limited constitutional convention.' Its departure from the tenor of prior calls provided the issue in Illustration Design Group v. McCanless, 224 Tenn. 284, 454 S.W.2d 115 (1970). 1Compare Appendix A with the three prior calls of limited constitutional conventions in Appendices C, D and E. The first legislative call of a limited constitutional convention was in 1949 and the first limited constitutional convention in this state's history convened in 1953. Plaintiffs asserted that Chapter 421 of Public Acts of 1968, as amended was unconstitutional because the legislature had exceeded the limits of its power in drafting the call, by undertaking to dictate the specific terms of the amendment, thus usurping the function of the Constitutional Convention. In rejecting that contention, the Court said, inter alia, It will be observed that, by the provision of the Constitution above quoted (Art. 11, sec. 3, par. 2), the people have not only delegated authority to the Legislature to propose the call for a convention, and thus limit and define the scope and action of such convention, but they have expressly limited the consideration and action of the convention to the proposals already approved by a vote of the people and within the limits of the call, by this language: "... and the convention shall assemble for the consideration of such proposals as shall have received a favorable vote in said election,..." 454 S.W.2d 120. The Court appears to place a great deal of emphasis on the effect of the language, "unless within the limitations of the call." Its holding has been urged upon this Court in three subsequent lawsuits, including this one, as demanding a literal interpretation of that phrase with the result that it is said a constitutional convention must confine its deliberations and actions strictly within the detailed terms of the call. Said cases are Southern Railway Company v. Dunn, 483 S.W.2d 101 (Tenn. 1972), and Southern Railway Company v. Fowler, 497 S.W.2d 891 (Tenn.1973). In Fowler, the plaintiffs contended that the Constitutional Convention exceeded the limitations of the call by sub-classifying tangible personal property, and in authorizing the Legislature to subclassify intangible personal property. The case was tried in the Chancery Court of Davidson County and then Chancellor Drowota, now a member of the Court of Appeals, filed a Memorandum opinion containing these incisive observations with respect to Illustration Design Group v. McCanless, supra: This present litigation has revealed at least two adverse effects of the Illustration Design Group holding. The first is a very practical concern. That is, Illustration Design Group invites litigation like these present suits after every effort to amend the Constitution by the Convention method. Having granted the Legislature power to, in effect, draft proposed amendments, the Legislature can be expected to use that power to the full- The second adverse effect, apparent from As conceived by Article XI, Section 3, Con- It is apparent to this Court that such restrictions upon the function of a limited Constitutional Convention are contrary to the intent of the 1953 convention, and to legal and historical precedent in framing constitutional law in Tennessee and our sister states. The issue thus presented, is of great significance in the fundamental law of this State and must be clarified. A brief review of the background and events leading directly to the amendment of the second paragraph of Article XI, Section 3 of our Constitution, dealing with the Convention method of amendment, is appropriate. The pre-amended provision as it appeared in our 1870 Constitution, with respect to amending by the Convention method, provided as follows: The Legislature shall have the right, at any votes cast shall be in favor of said proposition, then delegates shall be chosen, and the Convention shall assemble in such mode and manner as shall be prescribed. By Senate Joint Resolution No. 20, Public Acts of 1945, the Legislature authorized and directed the Governor to appoint a Constitution Revision Commission. The purpose of the Commission was to make a study of the needs for revision of the Constitution of Tennessee and present its recommendations to the 1947 Session of the General Assembly. Seven distinguished lawyers were appointed by the Governor and, after more than a year of study, the Commission's report was submitted to the 75th General Assembly on November 8, 1946. Said Commission recommended that nine sections of the Constitution be changed and devoted must of its report to the procedure best calculated to bring about the suggested changes. Eleven efforts to amend the 1870 Constitution by the legislative method had failed because of the obstacle of obtaining voter ratification by a majority of all those voting for representatives.2 We judicially note, that in said efforts to amend by that process, only a small percentage of the voters who voted for representatives cast their ballots either for or against constitutional amendments, leaving the required majority of those voting for representatives, unattainable. After a careful study of the authorities, said Commission reached the conclusion that a limited constitutional convention was authorized by the above quoted Convention method contained in the 1870 Constitution, but an opinion from the Attorney General was requested. (Report of Constitution Revision Commission, pp. 2-8). Attorney General Beeler rendered the requested opinion on May 16, 1946, finding a limited Constitutional Convention invalid and unconstitutional. Of significance to our inquiry is the following excerpt from his opinion: The last sentence of Art. 11, Sec. 3, is the one using the wording "to alter, reform or abolish." This sentence and these words do not confer upon the Legislature the power or authority to limit the Constitutional Convention to a consideration of any particular amendments; but a Constitutional Convention once called and assembled is sovereign in character and must be left free to either “alter, reform or abolish" and existing Constitution. 2"-And if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Representatives, voting in their favor,-" Article 11, Section 3, Constitution of 1870. To hold otherwise would be to reduce the Constitutional Convention to nothing more nor less than a rubber stamp. Its members would be shackled and manacled... in common, every day language "hamstrung" and "hogtied." The framers of this constitutional provision intended to provide the State with the benefit of the collective coordinate judgment of the individual members making up the Constitutional Convention and it was not intended that the Legislature by a limiting Act could short-circuit the Constitutional Convention by the submission to it of certain specific amendments. To hold otherwise would be to reduce the Convention to a servile agency of State Government. (Emphasis supplied).3 The suit was brought by Cummings in his official capacity as Secretary of State, seeking a declaratory judgment as to the constitutionality of Chapter 49 of the Public Acts of 1949, for the immediate purpose of determining whether or not the Secretary of State should expend public funds for the holding of the special election on November 8, 1949, submitting the question of calling the limited Constitutional Convention. The court observed that it must be conceded that authority is granted to the Legislature to propose to the people a call of a convention to alter, reform or abolish the Constitution as a whole; that the question to be determined was whether or not the call could limit the convention to amending the Constitution in part. 223 S.W.2d, at 921. In upholding the 1949 Act and establishing the limited constitutional convention as a political entity, Justice Burnett, writing for the Court, said: The power to "alter, reform or abolish" the The Constitutional provision above quoted does not prohibit the revision or amendment of a part of the Constitution by the Convention method.... The thing that the people 3Among the cases relied upon by Attorney General Beeler in reaching the foregoing conclusion were: Carton v. Sec. of State, 151 Mich. 337, 115 N.W. 429; Goodrich v. Moore, 2 Minn. 61, Gil. 49; Sproule v. Fredericks, 69 Miss. 898, 11 So. 472. |