Tennessee Advisory Opinions January 01, 2006: TN Att. Gen. Op. 06-163

Advisory Opinion Text

Ask the Election Commission to place on the November ballot, an advisory, non-binding referendum to allow the people of Lincoln County to decide whether we need to study and look hard at land use codes for Lincoln County. There would be no cost to put this referendum on the ballot.

You have asked whether a private act is necessary in order for the Lincoln County Election Commission to place such a non-binding advisory referendum on the November ballot. It is well-settled law in Tennessee that the right to call an election cannot exist without an express grant of power by the legislature. See Brewer v. Davis, 28 Tenn. 208 (1948). See also McPherson v. Everett, 594 S.W.2d 677, 680 (Tenn. 1980). This Office has previously determined that there is no general provision in the constitution or statutes of this state that authorizes a local government to hold an advisory or non-binding referendum election. See Tenn. Atty. Gen. Op. 95-013 (March 8, 1995); Tenn. Atty. Gen. Op. 81-336 (June 2, 1981) (copies attached). However, this Office has also opined that the General Assembly has the constitutional power to authorize local governments to hold such advisory referendum elections. See Tenn. Atty. Gen. Op. 00-081 (May 1, 2000) (Copy attached). Accordingly, it is our opinion that an appropriate private act would be necessary in order for the Lincoln County Election Commission to place a non-binding advisory referendum concerning zoning in Lincoln County on the ballot.

MICHAEL E. MOORE Acting Attorney General

ANDY D. BENNETT

Chief Deputy Attorney General

Requested by:

Honorable Curt Cobb State Representative 108 War Memorial Building Nashville, TN 37243-0182

JANET M. KLEINFELTER
Senior Counsel