BARTON HAWKINS v. TENNESSEE DEPARTMENT OF CORRECTION
No. M2001-00473-COA-R3-CV
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
Filed July 25, 2002
Walter C. Kurtz, Judge
Assigned on Briefs October 9, 2001; Appeal from the Circuit Court for Davidson County, No. 00C-3267
Petitioner, a state inmate, filed the underlying pro se petition for writ of certiorari to challenge the result of a prison disciplinary proceeding against him. The trial court dismissed the suit sua sponte for improper venue. Because the legislature has localized venue for actions brought by inmates to the county where the prison facility is located, we affirm the decision of the trial court, but remand for transfer
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified and Remanded
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Stephanie R. Reevers, Associate Deputy Attorney General, for the appellee, Tennessee Department of Correction.
OPINION
Appellant Barton Hawkins is an inmate who seeks review of actions taken against him by the Disciplinary Board at West Tennessee State Penitentiary in Henning (the Board). The disciplinary actions at issue were imposed after the Board found that Mr. Hawkins had refused a drug screen.
In his petition, Mr. Hawkins claims that because he was unable to produce a urine sample during a routine screening, he was charged with refusing a drug screen in violation of TDOC Policy # 502.01(VI)(F)(2) and found guilty by the Board. Mr. Hawkins alleges that he has shy bladder syndrome which prevented him from producing a urine sample in front of others and that he should have either been given an alternate test or access to a dry room to have the opportunity to produce a sample.1 Mr. Hawkins appealed the Board‘s decision to the warden and wrote several letters to the commissioner of the Tennessee Department of Correction (the Department or TDOC) seeking relief from the disciplinary actions taken against him. His appeals were denied. After exhausting these administrative remedies, Mr. Hawkins filed a petition for writ of certiorari in Davidson County, naming the Department of Correction as the respondent.
In his petition, Mr. Hawkins also claims that after the Board found him guilty of refusing a drug screen, he has since been subjected to monthly urine tests, during which he has also been unable to produce a sample for testing. As a result, he alleges that he has been subjected to write-ups and disciplinary hearings seven (7) times, with the punishment accumulating to 110 days of punitive segregation, loss of privileges and, ironically, three more years of monthly testing which, he asserts, he will be incapable of performing. He alleges he was not allowed to have medical professionals
In his petition, Mr. Hawkins alleged that the Board violated his due process rights by sentencing him to punitive segregation for more than 100 days, imposing excessive fines, and suspending visitation and package privileges for one year.
Before the Department responded to the petition, the trial court entered an order dismissing the action sua sponte for improper venue. Relying on
I. Venue, Jurisdiction, and Suits Against the State
Venue refers to locality, and in the legal sense it signifies the proper locality in which a court of competent jurisdiction may adjudicate an action. It is within the power of the legislature to fix the venue of actions according to its judgment. Tennessee‘s venue rules are largely statutory and are intended to provide the criteria for determining where a lawsuit may or should be filed. Metropolitan Dev. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 880 (Tenn. Ct. App. 1982). Venue is either local or transitory, depending on the subject matter of the cause of action. State v. Graper, 155 Tenn. 565, 569, 4 S.W.2d 955, 956 (1927). A cause of action that may arise anywhere is transitory, but one that could arise in only one place is local. Burger v. Parker, 154 Tenn. 279, 290 S.W. 22 (1927).3 Otherwise transitory actions are considered to be local when a statute prescribes a particular county in which they must be brought. State ex rel. Huskey v. Hatler, 606 S.W.2d 534 (Tenn. 1980). In fact, venue statutes evince legislative purpose to localize transitory actions. White v. Garner, 192 Tenn. 429, 241 S.W.2d 518 (1951).
Even though venue is considered a personal privilege of the defendant that can be waived if not raised in a timely manner, Metropolitan Dev. & Hous. Agency, 637 S.W.2d at 880, waiver is not available when a transitory action has been localized by statute. In that situation, venue has become part of the court‘s authority
Jurisdiction involves a court‘s lawful authority to adjudicate a controversy brought before it. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). The jurisdiction of a court in its broad sense is its power to hear and determine controversies, and in a more restricted sense is its power to adjudicate a particular case. 21 C.J.S. Courts § 9.
Jurisdiction is implicated in the case before us, not only because of localized venue, but also because it is a lawsuit against a state entity. Article I, section 17 of the
Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.
This provision embodies the concept of sovereign immunity, which means that a governmental entity cannot be sued in its own courts without giving consent. Northland Ins. Co., 33 S.W.3d at 729. Thus, as a sovereign, the State is immune from suit except as it consents to be sued. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777 (1965). Legislation authorizing suits against the state must be so plain, clear, and unmistakable as to leave no doubt of the intention of the legislature that it should be done. Northland Ins. Co., 33 S.W.3d at 729; Daley v. State, 869 S.W.2d 338 (Tenn. Ct. App. 1993); Sweeney v. State Dep‘t of Trans., 744 S.W.2d 905 (Tenn. Ct. App. 1987).
Only the legislature has constitutional authority to determine how, or even if, lawsuits against the State may be brought. Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001). Even where authorization for suit against the state exists, suits may only be brought in those courts and under those conditions specified by the legislature . . . . Crowe v. Harton, 579 S.W.2d 888, 890 (Tenn. Ct. App. 1979). As the Constitution of Tennessee clearly states, the legislature may direct the manner and the courts in which a lawsuit against the State may be brought. When it makes such direction, the requirements are jurisdictional. Southwest Williamson County Cmty. Ass‘n v. Saltsman, 66 S.W.3d 872, 882 (Tenn. Ct. App. 2001).
II. Venue for Civil Actions by State Inmates
The trial court based its dismissal of Mr. Hawkins‘s claim on
The statute relied upon by the trial court was adopted in 1996 as part of a statutory scheme governing civil litigation by state prison inmates. The set of statutes was intended to reduce frivolous claims filed by inmates and clearly countenanced claims arising from an inmate‘s treatment during incarceration. See
Mr. Howse, a state prisoner, filed a civil rights claim to challenge the conditions of confinement and treatment by TDOC employees at a TDOC facility in Lake County. He filed the suit in Davidson County against the commissioner and various TDOC employees. The defendants, state officials or employees, moved to dismiss, and the trial court granted the motion citing improper venue as the basis. On appeal, this court agreed, stating that the conduct complained of occurred at the facility in Lake County and that
The holding and the reasoning of Howse are applicable herein. The only difference in the action brought by Mr. Howse and the action brought herein is that the first was pursuant to
III. Venue for Common Law Writ of Certiorari
We must consider the venue statute applicable to petitions seeking judicial review of the decision of a board or commission through a common law writ of certiorari action.5
Such [aggrieved] party shall, within sixty (60) days from the entry of the order or judgment, file a petition for certiorari in the chancery court of any county in which any one or more of the petitioners, or any one or more of the material defendants reside, or have their principal office, stating briefly the issues involved in the cause, the substance of the order or judgment complained of, the respects in which the petitioner claims the order or judgment is erroneous, and praying for an accordant review.
The grant of the writ is simply an order to the Board to send up its record for review.
Because the certiorari procedure is for the purpose of a limited review of a lower tribunal‘s decision, venue is determined by the situs of the lower tribunal, board or commission whose decision would be reviewed if the writ is granted, not by the residence of the parties. Delta Loan & Fin. Co. of Tenn. v. Long, 206 Tenn. 709, 713-14, 336 S.W.2d 5, 6-7 (1960); McKee v. Board of Elections, 173 Tenn. 269, 272, 117 S.W.2d 752 (1938).
McKee, 117 S.W.2d at 754.The revisory power of a higher court is limited to the correction of errors of tribunals located within the territorial jurisdiction of the appellate body. It is the situs of the lower tribunal, and not the residence of the parties, that points out the proper appellate tribunal.
In both McKee and Delta Loan & Finance, the court found that only the statutory writ of certiorari was applicable and that the procedures now appearing in
In Potts, the court found that
Potts, 221 Tenn. at 591, 428 S.W.2d at 796-97.In our opinion, sec. 27-902 [now § 27-9-102], quoted supra, merely fixes permissible venue for review of Boards and Commissions. It does not have the effect of giving the trial court of any county wherein the party affected may have residence subject matter jurisdiction
over the review of a Board or Commission exclusively located elsewhere. That section merely specifies the courts where the writ might be sought if other jurisdictional requirements are met.
The rule that venue is determined by the situs of the lower tribunal is consistent with the venue statute‘s language regarding the material defendant‘s principal office. McKee, Delta Loan & Finance, and Potts involved suits against commissions or officials whose principal office was exclusively located in Davidson County, and all involved a venue dispute between the county of the petitioner‘s residence and Davidson County.
The Department herein states that the Department ultimately oversees prison discipline and that the Department‘s principal office is located in Davidson County, thereby making that county the only appropriate venue. However, this court has found that both the prison disciplinary board and the warden of a prison were proper respondents or defendants in a common law writ of certiorari action seeking review of a prison disciplinary board decision, and refused to adopt the Department‘s argument that it was the only proper defendant in such actions. Seals v. Bowlen, M1999-00997-COA-R3-CV, 2001 Tenn. App. LEXIS 547, at *10-*14 (Tenn. Ct. App. July 26, 2001) (rehearing denied Aug. 27, 2001). This decision was based upon the purpose of a petition for writ of certiorari, which is to seek review of a decision by a lower tribunal, that can include a board, commission, or officer. Subsequently, reaffirming the holding of Seals, we have found, depending on the circumstances, parties other than the Department may properly be named as defendants. Robinson v. Clement, 65 S.W.3d 632, 635-36 (Tenn. Ct. App. 2001).8
Accordingly, we are not convinced that an action seeking judicial review of the decision of a prison disciplinary board is an action against the Department.9 To the
material respondent is the board which conducted the hearing and rendered the decision being challenged. Because the situs of that lower tribunal determines venue under the common law writ of certiorari venue statute, venue would lie in the county where the prison is located.
Our courts have addressed the issue of proper venue for common law writ of certiorari petitions brought by inmates to challenge disciplinary actions. In two of these cases, both decided without consideration of
In Williams, as in the case before us, the petitioner inmate named as the only respondent the Tennessee Department of Correction.10 Relying on Potts and McKee, this court held in Williams that it is the situs of the lower tribunal whose decision would be reviewed if the writ were granted that determines the proper venue. Accordingly, the court held:
Williams, 1995 Tenn. App. LEXIS 640, at *10.In the case before us, petitioner seeks review of actions taken by the prison disciplinary board, the prison warden, and the commissioner of the Department of Correction. Petitioner is not seeking review of a decision of a state
board exclusively located elsewhere.11 The situs of the disciplinary board involved herein is at WTHSF, in Lauderdale County. Furthermore, petitioner is an inmate at the same institution. The warden and members of the disciplinary board, employees of the prison, have their principal office in Lauderdale County, and likely have their residences there as well. The incident from which the charge against petitioner stems occurred in Lauderdale County as did the disciplinary board‘s hearing on the matter and the warden‘s affirmance of the Board‘s decision. Only the commissioner of the Department of Correction is located in Davidson County.
Similarly, in Cobb, this court rejected the argument of the respondents, the warden and the chair of the disciplinary board at Lake County Regional Correctional Facility and the commissioner of TDOC, that under
In other cases involving venue for writ of certiorari petitions seeking review of prison disciplinary actions, the results have been contrary to that reached in Williams and Cobb. See, e.g., Bishop v. Conley, 894 S.W.2d 294, 296 (Tenn. Crim. App. 1994) (stating that because appellant seeks relief against an agency of state government, the writ should have been filed in the county which is the official situs of the agency‘s head office).12
Although we recognize the differing conclusions reached by our courts on the issue of venue for a common law writ of certiorari action seeking review of a prison disciplinary board decision, we are persuaded the Williams and Cobb result is the more correct one. That is because the material defendant in a writ of certiorari action is the Board, officer, or lower tribunal that made the decision which would be reviewed, and the situs of the Board determines venue. Applying those principles to prison disciplinary boards leads to the necessary conclusion that venue is in the county where the prison is located.
Therefore, we conclude that the statute governing venue of petitions for certiorari to review decisions of boards and commissions does not meet the otherwise provided by law exception to
IV. The Department‘s Position
The Department asserts that
In Morris v. Snodgrass, 871 S.W.2d 484 (Tenn. Ct. App. 1993), the Court recognized that
Tenn. Code Ann. § 20-4-101(a) pertaining to venue in transitory actions was not applicable to suits against state officials since such actions were not transitory. The Court also noted that becauseTenn. Code Ann. § 4-4-101 was a statute of specific nature which had been interpreted by the Supreme Court as placing venue for suits against certain state officials in Davidson County, it prevailed over a statute of more general application. Id. at 484. Similarly, whileTenn. Code Ann. § 41-21-803 has the general effect of localizing transitory actions brought by inmates, it does not alter the effect ofTenn. Code Ann. § 4-4-101 , requiring that actions naming state agencies or heads of agencies be brought in Davidson County.In addition,
Tenn. Code Ann. § 41-21-803 makes the statute applicable only to the extent that there are no preexisting provisions of law to the contrary. The localizing effect ofTenn. Code Ann. § 4-4-104 on suits against state officials is clearly otherwise provided by law and suits naming state agencies are therefore excepted from the effect ofTenn. Code Ann. § 41-21-803 by the statute itself.
Morris v. Snodgrass, 871 S.W.2d 484 (Tenn. Ct. App. 1993), was a declaratory judgment action seeking to have two statutes declared unconstitutional and naming the Comptroller, the Attorney General, and the Commissioner of the Department of Correction as defendants. This court held that venue for the lawsuit was exclusively Davidson County because venue for lawsuits against state officials such as these defendants is established in Davidson County by virtue of Tenn. Code Ann. § 4-4-10413 and by court interpretations of that statute placing venue for suits against certain state officials in Davidson County. Id. at 485-87.
The Morris court traced these principles to Delta Loan & Finance, supra, wherein a petition for review of a decision of the Commissioner of the Department of Insurance and Banking was filed in Shelby County. In determining that only Davidson County had jurisdiction to hear the action, the Supreme Court in Delta Loan & Finance relied first upon older cases holding that since the situs of a municipal corporation is local, it cannot be sued in another county in a transitory action . . . the court of such other county has no
The Morris court quoted from Delta Loan & Finance, to the effect that:
Morris, 871 S.W.2d at 486 (quoting Delta Loan & Fin., 336 S.W.2d at 6).Though the statutes make some exceptions not here material, the rule is that a commissioner or head of a department of state government may be sued as such only in the county of his official residence; and a number of cases have held that such a suit may not be maintained as a transitory action in another county.
The Morris court also relied on and quoted the Tennessee Supreme Court‘s decision in Chamberlain v. State ex rel Brown, 215 Tenn. 565, 387 S.W.2d 816 (1965):
Morris, 871 S.W.2d at 486 (quoting Chamberlain, 215 Tenn. at 568, 387 S.W.2d at 817).14 (...continued)T.C.A. § 23-2003 makes a writ of mandamus against a public official returnable in the county where the office is kept. The situs and office of the Department of Insurance and Banking is in Davidson County. This would be true of each division thereof, there being no statute to the contrary.
and safekeeping of the prisoners therein.
We do not interpret Morris quite as broadly as the Department. While in that case this court held that
The argument made by the Department herein was addressed in both Williams15 and Cobb, wherein this court stated that blanket statements to the effect that only the courts of Davidson County have the necessary subject matter jurisdiction to review the actions of a state agency16
We conclude that prior judicial interpretation of
It is not debatable that the legislature has authority to direct that suits against state departments or other state entities, commissioners, officers, or employees be filed in a county other than Davidson. The legislature has exercised that authority in a number of situations. See, e.g.,
When the legislature directs a venue for specific actions against state entities, courts cannot ignore that directive. Rather, our task is to determine legislative intent. As discussed earlier, the legislature has, in
V. The More Specific Statute Governs
The Tennessee Supreme Court has provided guidance on how to reconcile two venue statutes and has held that the more specific statute governs over the more general. Five Star Exp., 866 S.W.2d at 946. In that case, the Court determined that the appropriate venue for workers’ compensation
Therefore, it would seem that the workers’ compensation venue statute would fit squarely into this exception [unless venue is otherwise expressly provided for] to the general rule [in
Tenn. Code Ann. § 20-4-101(a) ] regarding venue of transitory actions. This conclusion is buttressed by the basic rule of statutory construction which provides that a general statute concerning a subject must defer to a more specific statute concerning the same subject. See Watts v. Putnam County, 525 S.W.2d 488 (Tenn. 1975); Koella v. State ex rel. Moffett, 218 Tenn. 629, 405 S.W.2d 184 (1966).
Id. at 946;19 see also Ferguson v. Ram Enter., Inc., 900 S.W.2d 19 (Tenn. 1995) (reaffirming the Five Star Exp. holding where the workers’ compensation venue statute provides a Tennessee forum,
but applying the general venue statute when a Tennessee forum is not available under the workers’ compensation venue statute).
A similar result was reached in Valley Fid. Bank & Trust Co. v. Ayers, 861 S.W.2d 366, 369 (Tenn. Ct. App. 1993), wherein this court held that the specific venue statute relating to chancery court controlled over the general statute on venue in transitory actions. In Frye v. Memphis State Univ., 671 S.W.2d 467, 468-69 (1984), the Tennessee Supreme Court held that the legislature intended that the more specific procedures found in the statutes governing tenure of university faculty apply to administrative actions, and judicial review of those actions, against tenured faculty rather than the more general procedural provisions of the Uniform Administrative Procedures Act. That action was brought in Shelby County. Similarly, in Phillips, the Court found that the legislature intended to provide for venue to contest suspension or dismissal of a tenured faculty member in the county where the college or university holding the administrative hearing was located. Phillips, 771 S.W.2d at 411.
Before we apply the more specific governs rule, we must first determine whether
It is clear to us that the set of statutes found at
This part does not authorize a claim for preventive relief against the department, an employee of the department, or of any other agency, agent, employee or officer of this state if the claim is brought by a person housed in a facility operated by the department and the claim accrued while the person was housed in the facility.
This section evidences an implicit understanding that other types of actions may be brought or relief sought and granted against the department or state agencies, officials, or employees. We think the legislature clearly envisioned that the types of actions which might accrue during a state inmate‘s incarceration would include actions involving the conditions of his or her confinement, including sanctions resulting from enforcement of prison rules. Such actions would necessarily involve state entities, officials, or employees as defendants.
The clear language of
Consequently, we are unpersuaded by the Department‘s argument that
However, the statute makes no such distinction. The language of
Accordingly, we agree with the decision of the Davidson County Circuit Court that it was without jurisdiction to hear this matter because the action was filed in the wrong court. However, the consequence of that holding is not necessarily dismissal.
VI. Transfer
The general rule is that a court lacking subject matter jurisdiction over a case has no authority to transfer it, unless that authority is specifically conferred by statute, rule, or constitutional provision. Norton, 895 S.W.2d at 319. The Tennessee Supreme Court has clearly stated that trial courts possess no inherent authority to transfer cases in the absence of statutory authority. Id. at 320; Coleman v. Coleman, 190 Tenn. 286, 293-94, 229 S.W.2d 341, 344-45 (Tenn. 1950). In Norton, the Court invited the legislature to enact a broad transfer statute. Norton, 895 S.W.2d at 320. The legislature has since done so in
Transfer of actions or appeals.-Notwithstanding any other provision of law or rule of court to the contrary, when an original civil action, an appeal from the judgment of a court of general sessions, or a petition for review of a final decision in a contested case under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, is filed in a state or county court of record or a general sessions court and such court determines that it lacks jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was originally filed. Upon such a transfer, the action or appeal shall proceed as if it had been originally filed in the court to which it is transferred on the date upon which it was actually filed in the court from which it was transferred.
We find Mr. Hawkins is entitled to the benefit of this statute and that it is in the interest of justice that this action be transferred to the appropriate trial court. Accordingly, we remand to the trial court for entry of an order transferring this action to the appropriate court in the county where West Tennessee State Penitentiary is located.
VII. Conclusion
Pursuant to
Costs of this appeal are taxed to the Department of Correction, for which execution may issue if necessary.
PATRICIA J. COTTRELL, JUDGE
Notes
Five Star Exp., Inc. v. Davis, 866 S.W.2d 944, 945 at n.1 (Tenn. 1993) (citations omitted).There are two types of actions for purposes of venue. A transitory action is one in which the injury occurred to a subject not having an immovable location; therefore a transitory action could have occurred anywhere. Typical examples of transitory actions are actions sounding in tort and contract. On the other hand, a local action is an action in which the injury occurred to an immovable object; the classic example is an action involving injury to real property. Local actions must be brought in the county in which the property is located.
On appeal, this court, even though specifically stating that the venue issue need not be conclusively addressed by us because the inmate had not raised that issue on appeal, observed:
Davis, 31 S.W.3d at 577. Sweatt v. Conley, No. 01-A-01-9706-CH-00246, 1997 Tenn. App. LEXIS 862 (Tenn. Ct. App. Dec. 5, 1997), appeal after remand sub nom. Sweatt v. Tennessee Dep‘t of Corr., 2002 Tenn. App. LEXIS 319 (Tenn. Ct. App. May 2, 2002), involved an inmate‘s action against various employees of the Department and a doctor, seeking declaratory and mandamus relief and also alleging a violation of civil rights. The various defendants moved to dismiss on the basis of, among other things, improper venue. This court determined that venue in Davidson County was improper because a claim for civil rights violation is a transitory action and subject, therefore, toHowever, there was a strong implication in the trial court‘s ruling that venue for this case would have been proper in Davidson County if Mr. Davis had supplied it with the residential addresses of the individual defendants. While that may be consistent with the result of Sweatt v. Conley, supra, we are not sure that case applies here, since it did not consider the effect of
Tenn. Code Ann. § 41-21-803 .
(...continued)Contrary to the contention of defendants that the review is of the final action of the Board of Regents, the focus of the judicial review in the chancery court is upon the procedure followed and the evidence adduced at the administrative hearing, conducted at the institution involved. Any witnesses that may testify in the chancery court are likely to reside in the county where the institution is located. We think (continued...)
Phillips, 771 S.W.2d at 411.that the legislature intended to provide for venue in the county where the university or community college is located. In providing for jurisdiction in a chancery court having jurisdiction, the legislature has obviously excluded, the chancery court having jurisdiction. If, as defendants contend, the judicial review of all actions of Board of Regent institutions is exclusively in the chancery court of Davidson County, a chancery court was inappropriate.
In Phillips, the Board of Regents relied on
(a) Each department shall maintain a central office at the capitol, which shall be the official residence of each commissioner, or head of department.
(b) The commissioner of each department may, in the commissioner‘s discretion and with the approval of the governor, establish and maintain at places other than the seat of government, branch offices for any one (1) or more functions of the commissioner‘s department.