Good faith will keep council from sallying out beyond legal authority

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131108 rainmaker

Actions in bad faith are the focus of “Rainmaker” (1997), which explores fraud by an insurance company, Great Benefit.

By David Tulis

Before city of Chattanooga’s governing council stands a proposal to give benefits to homosexual live-in lovers who have been intimate at least 365 days and who share lives with  city employees.

A reasonable question for council members is whether the ordinance can be approved in good faith, given their state constitution’s Tennessee Marriage Protection Amendment. Such laws emanate the intention of the people; such declarations positively glow with meaning and express in brief form the outlook and worldview of the people and their representatives of what is good for Tennesseans and their commonwealth.

The gay lobby is pressuring city council members to approve the package, pretending it is a public good vs. a private one, and saying it is not offending the marriage provisions in the law. Is it possible to agree with the pleadings of gay activists and act in good faith?

A person acts in either of two states of mind: Good faith. Or bad faith.

Good faith — what makes it good?

What is good faith?

Good faith is a state of mind consisting in honesty in belief of purpose, faithfulness to one’s duty or obligation, and an absence of intent to defraud or to seek unconscionable advantage. In business, good faith is the observance of reasonable commercial standards for fair dealing in a given trade or business.

Good faith is the bedrock of local economy, in my hometown of Chattanooga and in yours. Good faith is when men look each other in the eye, agree to bind themselves toward a certain end, and work to honor their agreement, even to the hurt of either one or the other. Good faith is the template in which local economy and national economy operate. It allows for self-interest, but also implies “interest in the other” and “care for the other”  — putting one’s neighbor first.

‘Great Benefit,’ an insurance rascal

The opposite of good faith is bad faith. Bad faith becomes an issue in litigation and is defined as “dishonesty of belief or purpose.” Judicial decisions have pinned down some examples of bad faith, including “evasion of the spirit of the bargain; lack of diligence and slacking off, willfully rendering of imperfect performance, abuse of power to specify terms, and interference with or failure to cooperate in the other party’s performance.”

When an insurance company unreasonably and without foundation refuses to provide coverage in violation of the duties of good faith and fair dealing owed to the insured — you have bad faith. A great movie about this sort of miscreancy is based on a John Grisham novel. Matt Damon in Francis Ford Coppola’s 1997 movie “Rainmaker” portrays a young lawyer, Rudy Baylor, who tackles an insurance company stiff-arming a dying man and his family. Great Benefit is depicted at every turn as abusing the trust of its insureds and skulking about during litigation to avoid a judgment sought by a young attorney in his first case. ‡

The limits of rulemaking

The city council faces the same test that confronts members of the federal congress. What is their authority under the constitution and the statute, and how far afield might they exercise their grants? Republicans and Democrats alike frequently ignore constitutional strictures, having learned how to do that from Christians who rejected their holy scriptures as a rule of faith and practice.

The ordinance is proposed as a private benefit to certain non-married relations of employees in a city that is wholly a creature of the general assembly. In Tennessee law, cities have no authority to act outside their charters, nor outside the letter and spirit of either the Tennessee constitution nor the Tennessee Code Annotated, its statutes written not in Latin, but in vulgar American English so they are plain to all.

Cities have no power in Tennessee except such as are given to them by their charters and the general law. A city must act within its charter rights, according to City Transp. Co. v. Pharr (1948). Its powers are to be strictly construed.  A power exercised under Chattanooga city charter must be expressly conferred or fairly implied from the language or purposes of the act in question. In litigation, if there is any fair or reasonable doubt concerning the existence of a power (such as conferring homosexual benefits), it is resolved by the courts as against the city corporation — the power is denied.

“An ordinance may be declared unconstitutional because violative of the spirit of the constitution equally as if in contravention of the words or paragraphs thereof,” says Tennessee Jurisprudence (Nashville v. Hager, 5 Tenn. Civ. App. [Higgins] 192 [1914]). “An ordinance may not conflict with the Tennessee constitution” (Robinson v. Mayor of Franklin, 20 Tenn. [1 Hum] 156 [1839]). As a governmental agency, a city has “no vested rights which it may assert as against the state,” to quote from an 1891 Indiana case.

In other words, Chattanooga has no liberty to sit on the lap of its mother, the legislature, and rear back a hand to slap her on the cheek.

Tennessee’s people by a 81 percent endorsed marriage to be between one man and one woman. The legislature, prior to the plebiscite, agreed. City council in Chattanooga is being asked to confer private benefits to sexual partners who are not married to the city employee who is asking for taxpayer funds. This money is to be spent, in some cases, on an intimate who is of the same sex. The endorsement of marriage by the amendment effectively establishes public policy to favor family, marriage and lawful union under law.

The city council, heeding the law of the land and of the people, is wise therefore to act in good faith within its grant of authority, and to reject domestic partner benefits as outside the scope of its power.

‡ Part of the story involves Kelly Riker, an abused wife whose husband violates every civilized norm of conscience.

Sources: “Municipal corporations,” Tennessee Jurisprudence; “municipal corporations,” American Jurisprudence 2d; Black’s Law Dictionary

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