Perry Allen v. William B. Lee
M2020-00918-COA-R3-CV
| Tenn. Ct. App. | Jul 14, 2021Background
- Plaintiffs Perry Allen and Roller Express, Inc. (owner/operator of a roller‑skating rink) sued challenging a series of Tennessee governor’s COVID‑19 executive orders that closed entertainment/recreational venues.
- Plaintiffs alleged the orders unlawfully implemented martial law and infringed their liberty interests.
- Complaint filed April 29, 2020 in Davidson County Chancery Court naming the Governor, Secretary of State, and Attorney General.
- Defendants moved to dismiss under Tenn. R. Civ. P. 12.02(6); the trial court granted dismissal on May 26, 2020.
- The closure requirements were repealed (orders lifting closures issued May 22, 2020), and the State later reopened businesses and made vaccines widely available.
- On appeal the Court of Appeals concluded the controversy was moot, declined to exercise exceptions to mootness, vacated the trial court’s judgment, and remanded with instructions to dismiss the complaint as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability / Mootness of the claims | The dispute over the Governor’s authority remains live and merits adjudication (orders still challenged; merits review warranted). | The repeal of the challenged closure orders removed any live controversy; case is moot. | Moot: repeal of closure requirements removed a present, ongoing controversy; appeal dismissed as moot. |
| Public‑interest exception to mootness | The case raises issues of great public importance (executive power in emergencies) that warrant appellate review. | Exception should not apply because the issue is unlikely to recur and record is adequate; general rule favors dismissal. | Exception declined: court found no reasonable expectation the same conduct will recur and declined to retain the case. |
| Capable‑of‑repetition‑yet‑evading‑review exception | Pandemic measures could recur and evade review, so exception should apply. | Plaintiffs cannot show a reasonable expectation the specific closed‑venue restrictions will recur for them. | Exception not met: no reasonable expectation of recurrence; exception reserved for exceptional cases. |
| Voluntary‑cessation (government) exception | Repeal was voluntary cessation to moot litigation; court should not credit unilateral change. | Government repeal genuinely removed the contested requirements; lower burden to show mootness for government cessation. | Exception not applied: repeal appeared genuine; no reasonable expectation restrictions would be reinstated; dismissal appropriate. |
Key Cases Cited
- Fisher v. Hargett, 604 S.W.3d 381 (Tenn. 2020) (context of COVID‑19 as unprecedented public‑health crisis)
- City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013) (justiciability is threshold inquiry)
- Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008) (definition of justiciable controversy)
- Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cty., 301 S.W.3d 196 (Tenn. 2009) (mootness doctrine and restraint in addressing moot issues)
- Hooker v. Haslam, 437 S.W.3d 409 (Tenn. 2014) (enumerating exceptions to mootness)
- Alliance for Native Am. Indian Rights in Tenn., Inc. v. Nicely, 182 S.W.3d 333 (Tenn. Ct. App. 2005) (remand/vacatur practice when appeals become moot)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (standard for voluntary cessation and mootness)
- Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019) (discussing lower burden to show mootness when government voluntarily ceases conduct)