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Sons of Confederate Veterans Nathan Bedford Forrest Camp #215 v. City of Memphis

Court of Appeals of Tennessee, Jackson

October 24, 2017

SONS OF CONFEDERATE VETERANS NATHAN BEDFORD FORREST CAMP #215
v.
CITY OF MEMPHIS, ET AL.

          Session Date: September 20, 2017

         Appeal from the Chancery Court for Shelby County No. CH-13-0785 JoeDae L. Jenkins, Chancellor

         Appellant appeals from the trial court's grant of summary judgment in favor of appellee concerning appellees' authority to rename three city parks by way of resolution. After a thorough review of the record, we affirm the decision of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Douglas E. Jones, Nashville, Tennessee, for the appellants, Sons of Confederate Veterans, Nathan Bedford Forrest Camp #215.

          Brandy S. Parrish and Allan J. Wade, Memphis, Tennessee, for the appellees, City of Memphis, and Memphis City Council.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Andy D. Bennett and Brandon O. Gibson, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         This is the second iteration of this case on appeal. See Hayes v. City of Memphis, No. W2014-01962-COA-R3-CV, 2015 WL 5000729, at *1 (Tenn. Ct. App. Aug. 21, 2015). On February 5, 2013, Appellee the Memphis City Council ("the City Council") passed a resolution ("the resolution" or "the renaming resolution") to rename three city parks: Confederate Park, Jefferson Davis Park, and Nathan Bedford Forrest Park ("Forrest Park"). Forrest Park was named by way of ordinance in 1899. Jefferson Davis Park was named by resolution in 1905. Confederate Park does not appear to have been named by way of official ordinance or resolution but was commonly referred to as such allegedly as far back as 1901. Pending in the Tennessee General Assembly at the time of the passage of the 2013 renaming resolution was a law that would remove Appellee the City of Memphis's ("the City, " and together with the City Council, "Appellees") ability to rename the parks. The renaming resolution passed on first reading, rather than the three readings undisputedly required for the City Council to pass an ordinance.[1] See Memphis City Charter, art. 40, § 354 (governing the enactment of ordinances by the City Council).

         On May 29, 2013, Appellant Sons of Confederate Veterans Nathan Bedford Forrest Camp #215 ("SCV") and other plaintiffs filed a complaint in the nature of a declaratory judgment action challenging the renaming resolution. On October 21, 2013, SCV and other plaintiffs filed their Second Amended Complaint, which is the operative complaint for purposes of this appeal. The Second Amended Complaint alleged that in 2009, SCV raised funds to place a marker at Forrest Park. The marker was approved by City officials and placed at Forrest Park in 2012. According to the Second Amended Complaint, however, after the passage of the renaming resolution the marker was removed.

         Appellees responded with a motion to dismiss based, in part, upon lack of standing. In response to Appellees' standing argument, SCV filed the affidavit of G. Lee Millar, a member and former commander of SCV. In his affidavit, Mr. Millar stated that SCV placed a granite marker at Forrest Park in 2012 after raising the funds for the project. The marker stated "Forrest Park." According to the affidavit, the marker project was a collaboration between SCV, the City, and the Shelby County Historical Commission. At the time, Mr. Millar explained that there was no marker remaining at Forrest Park that identified the park by name. In his affidavit, Mr. Millar detailed SCV's efforts to raise funds for the marker and obtain approval to place the marker in Forrest Park. According to Mr. Millar, neither he nor anyone associated with SCV was notified prior to the removal of the marker from the park

         The trial court granted the motion to dismiss after analyzing standing as to each plaintiff. This Court reversed as to SCV, holding that it had standing to challenge the renaming of the parks. See Hayes v. City of Memphis, No. W2014-01962-COA-R3-CV, 2015 WL 5000729, at *1 (Tenn. Ct. App. Aug. 21, 2015). We affirmed, however, the trial court's ruling dismissing the claims of the other plaintiffs for lack of standing. Id.

         On June 3, 2016, SCV filed a motion for summary judgment, seeking a declaration that the renaming resolution was ultra vires. The motion was accompanied by a statement of undisputed material facts and memorandum of law. Therein, SCV argued that the renaming of Forrest Park was invalid because the park was named by ordinance and therefore must be renamed by ordinance. With regard to the other two parks, SCV argued that the City Council's action was likewise invalid because the City Council has delegated all authority over the administration of parks to the City of Memphis Division of Park Services ("Division of Park Services"), under the control of the Memphis Mayor, which authority could only be regained through the adoption of an ordinance. SCV's statement of undisputed facts included facts concerning the adoption of the Forrest Park name by ordinance in 1899, the adoption of ordinances by the City Council concerning the administration of parks, and the adoption of the renaming resolution.

         Appellees responded by filing their own motion for summary judgment and memorandum on August 30, 2016. Therein, Appellees argued that the Memphis City Charter authorized the City Council to act by resolution or ordinance with regard to the administration of parks and that that authority was not delegated to the Division of Park Services. Further, Appellees contended that any ordinance purporting to give the Memphis Mayor authority over the Division of Park Services did not alter the Memphis City Charter's express provision allowing the City Council to act with regard to the administration of parks. Concurrent with the filing of their motion, Appellees filed the affidavit of then-Memphis Mayor AC Wharton, Jr., who stated that he fully supported the renaming of the subject parks. As such, Mayor Wharton stated that he "intended to and did, in fact, consent to and ratify" the renaming resolution. At some point, Appellees also filed a statement of undisputed material facts containing facts concerning the Memphis City Charter, the enactment of certain provisions of the Memphis City Charter, the passage of the renaming resolution, and Mayor Wharton's support for the resolution.

         On November 28, 2016, SCV filed a response to Appellees' motion for summary judgment. Largely, SCV's response includes the same argument as had been contained in SCV's motion for summary judgment. In addition to those arguments, SCV also asserted that the City Council's action was invalid because it violated Tennessee Code Annotated section 6-54-512, requiring, inter alia, that all permanent actions taken by municipalities be performed by ordinance.

         On December 2, 2016, Appellees filed their response to SCV's motion for summary judgment. In addition to arguments raised in their motion for summary judgment, Appellees again asserted that SCV lacked standing to challenge the renaming resolution. Appellees later filed an objection to any consideration of SCV's argument concerning Tennessee Code Annotated section 6-54-512.

         A hearing was held on the parties' cross motions for summary judgment on December 13, 2016. At the hearing, Appellees again objected to any consideration of section 6-54-512. However, counsel for Appellees later stated the following

Now, if they intend not to rely on the statute, we can move on, and that won't be an issue. If they intend to rely on it, then we have one or two courses of action. We can stipulate as to certain facts that we believe are undisputed that would address the issue, or they can be given the opportunity to amend their complaint to address the issue. And I'll let [counsel for SCV] choose whatever he wants. . . .
* * *
I have no problem with him relying on it today provided that we stipulate to certain facts that the Court can look at to determine whether it is permanent in nature.

         The parties thereafter entered into a joint stipulation of additional undisputed material facts. These facts generally concerned Appellees' efforts over the years to rename various parks throughout the City, much of which occurred by resolution. At the conclusion of the hearing, the trial court requested that each party submit proposed findings of fact and conclusions of law.

         On February 24, 2016, the trial court entered an order granting Appellees' motion for summary judgment and denying the motion of SCV. Therein, the trial court ruled that the Memphis City Charter provides the City Council with complete legislative authority to act by resolution regarding the operation or management of a city park. Because the Memphis City Charter is an "act of greater dignity" than the ordinances that established the subject parks, the trial court further ruled that the Memphis City Charter controlled the method by which the parks could be renamed, thereby exempting the decision from the requirement that the ordinance renaming Forrest Park only be accomplished by ordinance. Finally, the trial court concluded that the power to rename the parks resided with either the Mayor or the City Council, both of whom consented to the change in this case. In a footnote, the trial court also addressed Appellees' standing argument, concluding that the previously filed affidavit by Mr. Millar was sufficient to show that SCV and the City actively collaborated in the placement of the granite marker at Forrest Park. Further, the trial court noted that Appellees advanced no facts that called into question the facts established by Mr. Millar's affidavit. As such, the trial court concluded that SCV established standing for purposes of summary judgment.

         Issues Presented

SCV raises the following issues for this Court's review:
1. Whether changing the name of a park without setting a time limit after which said name change expires constitutes a "permanent" act as that term is used in Tenn. Code Ann. § 6-54-512.
2. Whether a municipal legislature may repeal or alter an ordinance using less than the full procedures prescribed ...

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