Judges question limits of state power during Nashville Airport Authority lawsuit hearing

The future of Metro Nashville's Airport Authority now lies in the hands of three Tennessee judges.

Metro Nashville's mayor-appointed and Metro Council-approved Airport Authority board was nixed in May when Gov. Bill Lee signed a new law restructuring the board to give state officials authority to appoint six of the board's eight seats.

Metro Nashville sued Lee and the speakers of both Tennessee General Assembly chambers in June, arguing the new state law exclusively erodes Metro Nashville's local authority in violation of the Tennessee Constitution. It is one of a string of Metro lawsuits accusing the state legislature of overstepping its bounds. A separate panel of judges recently ruled in favor of Metro in a case concerning voting thresholds for Nashville's Fairgrounds Speedway.

Attorneys representing Metro, the state and the MNAA delivered their final arguments to the three-judge panel Friday and volleyed the judges' multitude of questions, the majority of which were aimed at the state.

The panel is expected to release a ruling in the next few weeks.

The MNAA oversees business at the Nashville International and John C. Tune airports. Previously, Nashville's mayor appointed all seven MNAA board seats, each of which were approved by Metro Council.

The new statute scraps that model, instead giving two appointments each to Gov. Bill Lee, Lt. Gov. Randy McNally, R-Oak Ridge, and House Speaker Cameron Sexton, R-Crossville, leaving the mayor with two appointments. The law applies only to metropolitan governments with populations over 500,000 — criteria met solely by Nashville-Davidson County.

Metro attorneys say this is a blatant violation of the Home Rule Amendment, which prevents the state legislature from enacting laws that impact the governance of only a particular city or county without the approval of local voters. State attorneys say the law would apply to airports in other major Tennessee cities — Memphis, Knoxville and Chattanooga — if in the future they consolidate their governments and in some cases grow substantially in population.

"The state cannot use form of government or a population threshold as a 'get-out-of-local-approval-free' card," Assistant Metro Attorney Melissa Roberge said Friday.

The three-judge panel decided against Metro's request to intervene before the new board of state appointees took over on July 1. The board has since operated with six members — former Nashville Mayor John Cooper did not appoint board members to the two vacant seats. Metro Law Director Wallace Dietz said he does not know whether newly elected Mayor Freddie O'Connell will make appointments to the positions, but he is closely following the case.

'What's the constitutional limit?'

Senior Deputy Attorney General J.P. Urban said the statute applies generally and doesn't rip county officials from their positions — the state doesn't consider Metro Nashville Airport Authority board members to be county officials involved in county business.

While Urban agreed that the statute does wrest approval authority from the council, he said home rule doesn't cover the power to make appointments. Urban also argued it's within the state's authority to give the Airport Authority additional planning and zoning powers, including the ability to seek eminent domain. The purpose of the statute is "to give them the tools that they need … to make sure they have continued success," he said.

The panel, including Scott County Criminal Court Judge Zack Walden, Davidson County Chancery Court Judge Anne C. Martin and 29th Judicial District Circuit Court Judge Mark Hayes, pressed state counsel on these points.

Hayes asked state attorney Tim Simonds if, by that logic, the state legislature then had the ability to assume control over other boards: hospital, industrial development, levee and drainage districts.

"What's the constitutional limit?" Hayes asked. "Is it, 'If we build it, we can tear it down?'"

George Cate, attorney for the MNAA, said so long as a law is generally applicable, the answer is yes. Cate said Metro may have to share power it once held completely, but that does not equate to the law causing them to suffer a disability.

"There is nothing prohibiting the state legislature from removing powers," he said.

Martin said the law would give the airport authority "incredible power. It takes Metro out of the equation and gives them the ability to do things they can't currently do."

Roberge said the limit to the state's power to seize control is the home rule amendment.

"If the state wants to take control of all of them ... it can do that," she said. "But it can't take control of just one."

A battle over 'efficiency'

Attorneys for the state and MNAA argued the new law promotes efficiency of decision-making by giving airport authorities more autonomy.

Cate said areas that consolidate to become Metropolitan governments signal that they are seeking government efficiency, and populations of more than 500,000 suggest higher demand on airports and local officials.

Walden asked state attorneys whether the law could have been designed to exclude other counties or deter Shelby County from forming a Metropolitan government, since it would then have to relinquish control over its airport authority. Urban said the law applies to all counties that could change to meet the criteria, and he doubts Shelby County would decide on consolidation based on "one statute about board makeup."

Simonds, representing the state, said the metropolitan government and population threshold criteria "are melded to the statute."

"If the statute cannot survive by just striking out the threshold language, because it then applies to all four (airport authorities), doesn't that mean the purpose of the statute was for it to just apply to one?" Walden asked.

Simonds disagreed, because other airport authorities could meet the criteria in the future.

"It's really not the court's function to try to substitute its wisdom and judgment for the legislature in terms of … what could underlie the legislation," Cate said, encouraging the panel to consider whether a Metro government with more than 500,000 residents justifies a statute that increases efficiency.

"We're not asking you to second-guess the legislature," Roberge said. "We're just asking, is there any nexus between what this act does, which is create a classification, and what its stated reason is, and there simply isn't."

This article originally appeared on Nashville Tennessean: Judges question limits of state power over Nashville Airport Authority