Mayhew v. Wilder

words, being to a “gone beyond way property was used one Board member’s Therefore, nonconforming use. concept” lodging place of a different original] [the small, with the trial court’s conclusion get-togethers. agree we private catered rejecting the that the Board did not err telling sup- The most material evidence room Laffertys’ plan latest to add another action are the undis- porting the Board’s Inn. of the Antebellum to the west side con- puted surrounding circumstances subsequent struction and use of the first III. Laffertys por-

addition to the inn. The way judgment We affirm the and remand trayed this addition one order to it, then, further trial court for whatever approval obtain for and after ob- case to the opinion proceedings addition consistent with this taining approval, used the tax the costs of may required. Ac- We also something completely different. be Lafferty Phyllis this cordingly, Laffertys appeal were able to Robert x to their jointly severally, one-story storage Lafferty, transform a 20' 20' execution, necessary, if surety bar with a for which two-story public addition into Laffertys separate outside entrance. The issue. weighed no on the

high-handedness doubt in considering request Board’s mind their undermined the for another addition and their credibility explanation of their about x plans for the 38' 40' addition logical Green Door Pub. It seems to us point that at some the Board looked at it, track what was before considered the MAYHEW, et al Mark A. owners, remem- property record of the had with the first happened bered what WILDER, Hon. et al. John think, addition, began “We’ve been down this road before.” Tennessee, Appeals Court proceeding In a certiorari common-law Section, at Nashville. Middle one, necessary it is not such as this 11, 2001. Jan. ap- with the refusal to agree we Board’s x Laffertys’ 40' prove proposed 38' Appeal Denied Permission to only It is addition to the Green Door Pub. March 2001. Supreme Court necessary that we find that the Board did Appeal of Denial of Rehearing illegally, arbitrarily, capricious- not act by Supreme Denied Court material evidence ly. The record contains April the Board could have rational- from which ly proposed concluded that addition the Antebel- expanded

would have further activity quite lum Inn into a commercial nonconforming original different from its that would be use—a bed and breakfast small so- able to accommodate occasional the Board could Accordingly, cial events. rightly approval expansion withhold changed that it would have grounds Summers, Attorney

Paul G. General and Bennett, Andy Reporter, Deputy D. Chief General, Moore, Attorney Michael E. So- General, Catalano, licitor W. Michael Asso- Vix, General, Ann ciate Louise Solicitor Counsel, Hon. John appellants, Senior Wilder, Naifeh, Summers, Jimmy Paul Adams, the Ten- Morgan John Steve Assembly, individually nessee General and body capacity in their as mem- as a official of Rep- the House bers of the Senate and resentatives. Johnston, Barrett, Douglas E. S.

George Stranch, Jr., Carey, G. Edmund L. James Branstetter, Jr., III, Dewey Nash- and C. Mayhew, ville, TN, appellees, A. for Mark all the and citi- individually, on behalf Tennessee, the Nash- zens of the State of NashvillePost.com, Scene, Lyle ville Inc., Media, In Review. d/b/a Johnson, D. Knight H. and Alan Alfred Nashville, TN, The Tennes- appellees, for sean, Sun, The Knoxville The Jackson News-Sentinel, Chattanooga Times/Chat- Press, News Jour- tanooga Daily Free (Rutherford County), the Greenville nal Talk, Sun, Newport Daily Plain Post-Athenian, Review, Rogersville (Louden County), the Her- News-Herald (Rhea County County), Monroe ald-News Advocate, Jour- Society of Professional nalists, Chapter and Middle Tennessee Managing Press Ed- Tennessee Associated itors. Pera, TN, appel- for Memphis,

Lucian T. lee, Company, Memphis Publishing d/b/a Appeal. The Commercial Richard L. Hollow and Nathan D. Ro- ed a claim under either the Tennessee or well, Knoxville, TN, Constitutions, and that the appellee, Tennes- United States question legislative see Press Association. of when to close meet- ings non-justiciable because our Consti- Nashville, TN, Briley, Rob Amicus Curi- question exclusively tution commits ae, pro se. We, therefore, Assembly. re- Nashville, Kay, TN, Susan L. for Amicus verse the lower court’s order and dismiss Chapter, Curiae Tennessee American Civil complaint. Liberties Union.

I.

OPINION protracted legis- After a contentious and session, the lative Tennessee General As- P.J., CANTRELL, M.S., delivered the sembly finally passed budget for fiscal court, CAIN, JJ., opinion of the in which 2000-2001, year HB and a 2790/SB joined. it, revenue to fund HB bill 3364/SB state, A joined by citizen of the later day On June one before the bills three Nashville newspapers, filed this ac- effect, were take an individual citizen tion alleging year that Tennessee’s fiscal Speaker Repre- sued the of the House of budget 2000-2001 and revenue bills are sentatives, Senate, Speaker of void because resulted from secret all the other members of the As- meetings in both houses of the General sembly alleging deliberating Assembly. The Tennessee Press Associa- budget passage, and revenue bills toward tion, the Middle Tennessee Chapter houses, separate both Journalists, Society of Professional joint thereof, repeatedly committees held Tennessee Managing Associated Press sessions that were closed to the Editors and newspapers thirteen were al- press. complaint alleged to the The that lowed to challenge intervene to the Gener- meetings such secret violated Article Assembly’s right al to meet closed ses- Constitution, Section of the Tennessee sions, they but did not seek to have the 8-44-101, Ann. seq., TenmCode et budget and revenue bills declared void. process provisions the due of the Four- complaint The complaints and amended teenth Amendment to the United States sought declaratory injunctive relief Constitution. officials, against various state alleging that (1) plaintiff sought The a declaration meeting secret of the General Assem- budget that the and revenue bills are void bly Constitution, violates Tennessee (2) effect, injunction prohibit- and of no an Constitution, the United States and the ing Assembly from further Open Meetings State Act. The defendants Act, Open Meetings violations of the dismiss, raising moved to the defenses of (3) imposition supplementary an standing, soverign immunity, separation of provided by remedies statute for a viola- powers, and failure to claim. state a tion Act. Open Meetings County Circuit Court Davidson over- dismiss, grant- July ruled the motion to plaintiff and we On filed an application complaint adding ed the defendant’s for an ex- amended the Nashville Scene, traordinary weekly appeal newspaper, plaintiff under Rule a as a General, Attorney R.App.Proc. Open Comptroller, We find that the Meet- and the ings apply Act does not next to the General and Treasurer as defendants. The Assembly, plaintiffs day, plaintiffs that the have stat- filed motion for leave (4) complaints did not state that the complaint adding file a second amended Fourteenth under the First and claim newspapers,

as two Media, Inc., Con- Amendments to the United States Lyle Post.com and Nashville stitution; Additionally, the motion In Review. d/b/a realign Representative the court to (5) asked injunctive relief for that the claims the limited Briley plaintiff for Rob as immunity; by legislative were barred obtaining a declaration purpose of (6) allege did not complaints Meetings Open court as to whether journals showed that house and senate The sec- Legislature. applied Act revenue acts were budget and that the complaint also asserted ond amended the constitutional passed in violation Assembly’s secret requirements. Article 19 of the Ten- violated Section 10, 2000, the court overruled August On Amend- and the First nessee Constitution par- and notified to dismiss the motion States Constitution. ment to the United ap- contemplating that the court was ties plaintiffs’ granted trial court expert to ad- law a constitutional pointing com- the second amended motion to file available the remedies vise the court about Bri- plaint Representative and to dismiss of either the a violation if the court found him the and to add ley as a defendant the state or Act or of Meetings Open court, Subsequently, the plaintiffs. list of federal constitutions. Bri- Representative sponte, sua held 10, Tenn. Rule granted the State’s We party to the action but

ley could not be a ap- permission R.App.P., application in his official in the case could remain peal. Tennessee an amicus. The capacity as Association, Tennessee the Middle Press II. Society of Professional Chapter of to decide asked is not often This court Journalists, Associated the Tennessee structure the fundamental questions about group and a Managing Editors Press Inevitably, how- government. of our state as plain- intervened newspapers thirteen regard- ever, provisions the constitutional tiffs, seek to have but did not the con- powers of ing separation declared void. and revenue bills budget law immunities of and common stitutional the courts 2000, require a 24, the defendants filed various officials July On executive, legis- following on the to locate the boundaries motion to dismiss Thus, lative, the fun- power. judicial grounds: are must answer questions we damental (1) standing to lacked plaintiffs that the (1) circumstances under what Open Meet- bring the lawsuit under and sub- committees Assembly, legislative or the Tennessee Act or either ings legisla- committees, groups Constitution; States United (2) secret, part and what may meet in tors (2) under the claims plaintiffs’ that the to reviewing in the decision play courts Act, Article Section Meetings Open hold secret sessions. of the Ten- 22, 19 and Article Section non-justiciable; are nessee Constitution III. (3) are not sought the remedies Standing Open for violations available issue of address the we must First Consti- Act or the Tennessee Meetings based on doctrine judge-made a standing, tution;

767 752, 765, (1982); properly the idea that court 102 70 L.Ed.2d 700 “[a] S.Ct. Cohen, 83, 99, should refuse to entertain an action at the Flast v. 392 U.S. 88 S.Ct. (1968). Thus, 1942, 1952, rights instance of one whose have not been 20 L.Ed.2d 947 infringed.” party’s standing depend invaded Par- does not on the or 59 Am.Jur.2d (1987). § parallels ties 30 In state law it likelihood of success of its claim on the Gov’t, v. 842 the constitutional restriction on federal merits. MARTA Metro. jurisdiction to (Tenn.Ct.App.1992). court “cases and controver- S.W.2d Const, However, party’s standing may sies.” U.S. art. 2. It has been because a claims, controversy that no present- hinge said case is on the nature of its stand plaintiff standing judicial ed where the lacks to ex ing inquiry requires “careful Gilligan Morgan, allegations sue. to complaint’s 413 U.S. 93 amination (1973); S.Ct. L.Ed.2d 407 particular plaintiff see also ascertain whether the Littleton, O’Shea v. adjudication particular U.S. S.Ct. entitled to an (1974). 669, L.Ed.2d 674 “In determin- Wright, claims Allen v. asserted.” ing plaintiff whether the personal has a U.S. 104 S.Ct. 82 L.Ed.2d standing, (1984). stake sufficient to confer the fo- 556 should be on complaining cus whether the principles, Based on these we fail fact, party alleged injury has an eco- alleged to see how the have facts otherwise, distinguishes nomic or which they standing sufficient to show that have party, alleged in relation to the viola- complain budget the effect of the about tions, from the undifferentiated mass of They allege and revenue bills. do not the public.” 32 Am.Jur.2d Federal Courts any injury have sustained not com § 676 mon the “undifferentiated mass Tennessee,

In standing doc public.” This conclusion is also true with requires person challenging trine that the respect Representative Briley —al constitutionality of a statute “must record, though this he is before the that he personally show has sustained or is amicus, seeking court as an information danger sustaining, immediate some only. legislator special A does not have a injury direct ... and not merely that he standing challenge a statute where the way suffers some indefinite in common impede statute does not his people generally.” with Parks v. Alexan Briscoe, power. F.2d 1271 Korioth der, (Tenn.Ct.App. (5th Cir.1975). 1980). taxpayer The mere status as a however, actuality plaintiffs, are enough. plaintiff voter is not Id. The must process pass focused on the used to allege that the effect of the statute will original plaintiffs’ two bills. The conten- impose on him “not common to burdens tion that the two bills are void is based on body of the citizens.” Patten v. Chat 8-44-105, Ann. which de- Tenn.Code (1901); tanooga, 108 Tenn. 65 S.W. meeting any clares that action taken at a (Tenn. Stutts, Bennett v. S.W.2d in Act shall Open Meetings violation of the 1975); Shelby County Sachs v. Election The be void and of no effect. three associ- (Tenn.1975). Commission, 525 S.W.2d 672 plaintiffs newspa- ation and the thirteen pers only Open a a declaration that the primary standing

The focus of seek inquiry party, Meetings applies not the merits Act to the General As- is on on Valley Forge sembly legislative of the claims. Col and that closed Christian Tennes- lege Separation v. Americans violate Article Section 19 of the United for State, Inc., Therefore, ana- see we will Church & U.S. Constitution. “chilled” the exclusion of the Nashville- lyze plaintiffs of the various allegations allega We think this they standing reporter. if to ask Post.com to determine have present injury fact. See they seek. tion describes relief (6th Pitcher, Muhammad v. 35 F.3d 1081 Cir.1994). Mayhew alleged Mr. has Allegations A.The injury suffered an distinct that he has Only alleges that one NashvillePost.com He does not large. from the actually excluded employees of its was a member of the media or allege that he is meeting. The legislative from a closed Assembly’s that action has General Mayhew, the Nash- original plaintiff, Mr. prevented speaking, writing, him from Lyle allege only ville Scene and Media any subject. The thirteen printing other legislative that committees and alleged a distinct and newspapers have not legislators met secret sessions groups palpable injury. They alleged have not excluding one and that the overt act of were excluded representatives that their rights by the exercise of reporter chilled or that their con legislative meetings from complaint filed reporters. other chilled. Neither rights stitutional were Society of newspapers, the thirteen Journalists, Society of Professional and the Tennes- Professional Journalists Association, nor the Ten Tennessee Press Editors Managing see Associated Press Managing Press Editors nessee Associated simply alleged legislative that committees palpable viola alleged have a distinct had met secret groups legislators as associations. It is rights tion of their that these sessions violated sessions and standing have also doubtful I, 19 of the Tennessee Con- Article Section rights of their the constitutional assert (the Open Law stitution and the Sunshine Seldin, 422 U.S. members. See Warth Act). Meetings The Tennessee Press As- (1975); 45 L.Ed.2d 95 S.Ct. allege not even sociation does Morton, 727, 92 405 U.S. Sierra Club Assembly met in closed sessions S.Ct. 1361 They legal or the basis for their claim. However, allegation an that because of their some of rely on since defending personal the Sunshine passing role in have demonstrated sufficient Law, litigation than we they have more at stake in the outcome of the stake claims that the merits of the group Tennessee. address will has violated Article Assembly I, Tennessee Constitu- 19 of the Section I, 19 Claims

B.The ARTICLE Section tion. only Nashville- opinion In our

Post.com, Lyle Nashville Scene and Law Claims C.The Sunshine alleged give facts that them

Media have quite dif standing analysis claims under Article standing to make the Law because the Sunshine ferent under 19 of the Tennessee Constitu Section “any citizen of this allowed Legislature allegation of NashvillePost.com tion. The “injunctions, obtain bring suit to actually ex state” reporters of its was one enforce and otherwise meeting impose penalties, is cer cluded from Law].” .... Sunshine standing purposes [the to make the of tainly give to it sufficient 8-44-106(a). a § “When Ann. meeting violated Tenn.Code the claim that the closed by statute authorized expressly is person of the Tennessee Con Article Section 19 action, his or a bring particular or rule to Lyle The Nashville Scene stitution. directly out of right of action arises were her rights that their allege Media statute, he or no title IY. the she needs law to authorize under substantive (1987). Apply § 22 suit.” 59 Am.Jur.2d Parties Law to Does Sunshine Akins, Assembly? Federal Election v.

See Comm’n the General 11, 118 1777, 141 524 U.S. S.Ct. L.Ed.2d plaintiffs decided that the Having issue, we must standing have to raise the our unre rely

The defendants on if the Sunshine now decide on the merits v. ported City case of Hendersonville Assembly and applies Law to the General of Goodlettsville, City No. 01A01-9401- that its committees. The Act declares to CV-00014, (Tenn.Ct.App. 1994 WL 330404 any body are governing “[a]ll 13, 1994), July which we held that public meetings open to be declared 8-44-106(a) § Code Ann. does not dis times, except provided by public at all as pense re standing with substantive of Tennessee.” Tenn. Constitution quirements prior of our cases. 1994 WL 8-44-102(a). “governing § A Code Ann. think, however, at *4. our We that body” is defined as subsequent published Zseltvay opinion of any public body the members of which Nashville, Metropolitan Government of (2) members, consists of two or more (Tenn.Ct.App.1998) 986 S.W.2d 581 over for authority with the to make decisions City ruled Hendersonville sub silento. body to a public or recommendations Zseltvay In we found specifically that the policy administration and also means or plaintiff lacked standing challenge community agency a action which ad- action Metropolitan pur Council community programs ministers action chasing parcel property. But held we § provisions under the of U.S.C. state, that plaintiff, as a citizen of the [repealed]. Any governing body so de- standing had to assert that the Board of by this remain fined section shall so Parks and Recreation had violated the defined, notwithstanding the fact said, Open Meetings Act. agree “[w]e We governing body may designat- such have appellant compliance with the that strict negotiation ed itself as a committee for with Act a necessity if it is to be bargaining purposes, collective effective_” 986 S.W.2d at 585. Our body strategy governing sessions of decision in Zseltvay was an affirmation of open under such circumstances shall be our earlier decision MARTA v. Metro. at all times. Gov’t, 611 (Tenn.Ct.App.1992), we where said that because the Sunshine specifically Act mention does remedial, Law is it should “be construed Assembly. In fact it does not broadly promote openness and account- specifically any entity except mention ability in government.” 842 S.W.2d at 616. community agency. Supreme action Our says We believe where the statute given guidance has us some in Dor Court “any bring citizen” suit to enforce the Dark, (Tenn.1976), rier 537 S.W.2d 888 Law, Assembly must Sunshine said, “[I]t where the Court is clear for taken be at its word. Act, purposes Legislature of this commission, board, any It seems to us that all the intended to include authority, body, by qualify purpose agency as citizens for the of Tenn. 8-44-106(a). name, and authori origin Code Ann. Therefore whatever whose state, county standing ty may city traced to bring have suit violations be ” Law. action.... 537 S.W.2d at 892. Sunshine 770 (1974). In Dependencies Daugh list does not include 40 Supreme Court’s State, it Assembly because is a crea- v. 159 Tenn. tery 20 S.W.2d Constitution, Legisla- the

ture of the not of (1929), plaintiff challenged 1042 the a stat ture itself. ground Legislature ute on the that the did comply with a state code section outlin statutory A general principle of followed when the ing procedure be construction tells us that the state is not a for more than five Governor held bill by spe bound a statute unless the statute days signing without it. Because the Con state, cifically application or mentions provided in Article 18 stitution Section necessarily implied. to the state is Keeble automatically if that a bill became law the Alcoa, City v. Tenn. 204 days, it for more than governor held five Harmon, (1958); County 249 Davidson said, (1956). the court successive General “[E]ach 200 Tenn. S.W.2d Assembly is a law unto itself in this re legislative history of the Sunshine Law constitutional, does not indicate that the General Assem gard. It is and not statuto it bly passed had itself mind when ry, prohibitions legislature. which bind the bill, Speaking opposition Act. to the greater is than its creations.” The creator Representative op based his McWilliams Binding Legisla 20 S.W.2d at 1043. position applied on the fact that the bill rules an procedural passed ture with governments apply could not local but Assembly would violate Ar other General II, the House or Senate because of Article II, grant right ticle 12’s of the Section Section of the Tennessee Constitution. Legislature to determine its own rules Ill, Debates, House Feb. R. Vol. II, provision that and Article Section 22’s P. 258-259. We cannot find indication powers necessary has all the each House Legislature that the intended to bind itself Legislature of a free branch of Law, provisions Sunshine state. if they subsequently acted as were bound it. V.

Furthermore, we are if in opinion Legislature that even REQUIREMENTS The Constitutional passed to bind when it tended itself Open an LEGISLATURE Law, Sunshine the act would not bind unlim Assembly The General has subsequent Assembly. Article it power legislation, except so far as ited as provides Section 12 of our Constitution restrained, by necessary expressly follows: implication, by the Constitution the rules of may Each house determine Ten and the Constitution of United States proceedings, punish its its members for Duncan, nessee. Prescott behavior, disorderly and with the con- State, (1912); Motlow v. S.W. member, two-thirds, expel a currence of 547, 145 125 Tenn. S.W. same but not a second time for the offence; powers creating legislative department have all In and shall necessary Legisla- power, for a branch of the conferring upon it constitution) (in ture of a free State. un- must be people the full derstood to have conferred legislature general proposition, “[o]ne As a in, it rests complete power as successor, cannot restrict of its sovereign power by, be exercised general questions poli least ” restric- States, subject only to such any country, Territories cy,.... 72 Am.Jur.2d the law and to determine right im- have a fit to they may have seen tions as facts, of the under the direction the pose. court, in criminal cases. as the is therefore su- The constitution legislature. law of the land to our preme the importance of of the As a reminder Keith original.) in the (Emphasis XI, Article Section Rights, Declaration Board, 441, 155 127 Tenn. S.W. Funding “every- declares 16 of the Constitution 142, 144 contained, rights in the bill thing of the general powers the prohibitions out of only excepted constitutional Since State, invi- remain and shall forever Daughtery government, Legislature, the bind (1929), we olate .” 159 Tenn. S.W.2d state provisions the

must examine proceeds then to de- The Constitution respect with to and federal constitutions adopted to government form of scribe the question. this Article people, the whom represent inherent, and all 1 makes Section A. The Tennessee Constitution reform, alter, or abolish to who are free Rights is The Tennessee Declaration of they may proper. think as government the It in Article I of our Constitution. set out II, provide as 1 and Article Sections rights people familiar of a free includes the follows: These granted. that we often take for the powers 1. The Gov- Section to wor- rights part: include in the freedom into three dis- ernment shall be divided 3; chooses, right the ship as one Section Ex- Legislative, departments: tinct 6; by jury, right trial Section to be ecutive, and Judicial. free from unreasonable searches and sei- zures, 7; right process, to due Section persons be- person 2. No Section 8; right to be free from double Section departments to one of these longing 10; open jeopardy, right Section proper- any powers shall exercise courts, 17; right to bear Section and others, ex- belonging to either of the ly arms, 26. But the section relevant Section per- directed or cept in the cases herein controversy and it to this is Section mitted. reads as follows: legislative power, respect With printing press That the shall be free II, vests Article Section every person proceed- to examine the in a Assem- authority of the state any Legislature; or of ings of and a House of bly, consisting of Senate government, and branch or officer providing After Representatives. to restrain the no law shall ever be made of each House for members qualifications The free communication right thereof. election, the mode of the Constitution and is one of the thoughts opinions, II, 12: provides Article Section every citi- rights of man and invaluable the rules write, may Each House determine print may freely speak,

zen members punish its subject, responsible proceedings, for the of its being behavior, and, with the disorderly liberty. prosecu- But in abuse of that two-thirds, expel a mem- concurrence of papers inves- publication tions for the officers, ber, time for the same not a second but the official conduct of tigating offence; powers have all other and shall the truth public capacity, men in Legisla- evidence; necessary for a branch of given thereof be libel, ture of a free State. jury shall indictments for all Then Article 22 pro- government. Sections If the section means that vide: legislative open sessions have to be to the press, meetings Supreme then cabinet and keep

Section 21. Each House shall a open. Court conferences would also be journal it, proceedings, publish of its authority We know of no position. for that except parts such as the welfare of the secret;.... may require kept state to be IX, Article Section of the 1790 Penn- Section 22. The doors of each House sylvania language Constitution contains and of committees of the whole shall be nearly identical to that contained in Article kept open, unless when the business I, Section 19 of our Constitution. None of ought shall be such as to be secret. kept interpreting Pennsylvania cases suggests required open Constitution that it 1. Does Article I, Section meetings Legislature. specifi- of the More II, Conflict with Article cally, suggest the cases the section 21 and 22? Sections guarantee was a speech of free and the I, plaintiffs interpret The Article right subject. to write In print any or on guarantee press Section 19 as a Dennie, Respublica Joseph 4 Yeates 267 legislative unrestricted free access to all (Pa.1805), Pennsylvania Supreme sessions, meetings. or its committee Court made this comment the mean- about II, met with When the reference Article IX, ing of Article 7: Section Sections and 22 to the business of the evident, acts, it that legislative Thus is secret, Legislature ought kept to be any government, or of branch of the are plaintiffs argue that there ais hierar discussion; open every Constitution, I, chy and since Article may freely speak, print citizen write or appears Section 19 the Declaration of subject, any is accountable for but XI, Rights and is declared Article Sec privilege. of that There shall abuse inviolate, any ques tion 16 to be forever press. be no licenses of the Publish as open tion should be resolved in favor of you please in instance without the first legislative meetings. control; you but are answerable both to We think argument this overlooks individual, community you and the if prior holdings our that we must construe proceed lengths. to unwarrantable our Constitution as a whole to harmonize I, are confident that Article We Section give effect to each of its provisions. prior 19 of our restricts re- Constitution Sundquist, S.W.2d Wolf and dissemina- publication straints on the (Tenn.Ct.App.1997). But if we accept even governmental tion of materials critical of plaintiffs’ argument, argument their right provide actions. It does not provisions assumes that the constitutional meetings. legislative access to all actually in are conflict. To create the conflict, I, Article 19 has to be Section 2. Do THE HAVE ANY POWER TO saying press right COURTS

read as “the has the REVIEW THE LEGISLATURE’S DECISION Legislature.” attend all HOLD say that, TO CLOSED SESSIONS? clearly The section does not nor is that that even if the interpretation necessarily implied. assert right preserved Legislature right in Article has a limited to hold Section right people 19 is the to use the closed sessions under Article Section sparingly printing press proceedings right to examine the must be exercised Legislature any subject judicial other branch and is review. We case Prominent on the surface agree contemplates that the Constitution question is deliberations, political held involve but openness textually constitu- found demonstrable two we hold that for at least reasons to a of the issue coor- tional commitment sessions non- decision to hold closed aor lack of political department; dinate courts. reviewable manageable judicially discoverable it; resolving impos- standards for SepaRation A. of The Powers initial sibility deciding poli- of without an seen, II, As we Article Section 2 of have clearly a kind cy determination of person our a prohibits belong- Constitution discretion; impossibil- the nonjudicial or ing great departments to one the of three independent ity undertaking of a court’s government exercising powers of from the lack expressing resolution of the without delegated department, except to another respect gov- coordinate branches of due per- as the Constitution directs or itself ernment; for un- an unusual need or course, may, mits. courts of hold an political adherence to a deci- questioning unconstitutional, Legislature act of the made; already potentiality or the of sion Barrett, Carthage Town v. South of multifarious pro- from embarrassment (Tenn.1992), S.W.2d 895 certain lim- departments various nouncements may provide ited cases the courts a reme- question. one (or inaction) dy where the action 217, 691. 369 U.S. 82 S.Ct. executive branches legislative deprive any of the criteria Judged by set people the rights. of their constitutional quoted excerpt out in the from Baker v. Carr, In Baker v. U.S. 82 S.Ct. Carr, question the when to close ses (1962), L.Ed.2d 668 United political a purely sions of the is Legislature States held that Supreme Court the Ten- question. “textually demonstra There is nessee Legislature’s re-appor- refusal is ble constitutional commitment” this legislative tion the districts state’s violated department. to the Not legislative sue equal provisions protection the Unit- legislative it arti only is contained ed In States Constitution. Powell v. cle, court must judge but hold that the McCormack, 395 U.S. S.Ct. ought when the business to be (1969), 23 L.Ed.2d 491 the same court held dimmish kept greatly secret would Representatives House of could Legislature’s power to make its granted not duly exclude a member who had been rules, powers “all the own to exercise requirements elected possessed all the necessary Legislature for a branch expressly prescribed in the membership II, § of a free Art. State.” Constitution. addition, “judicially In see no we can However, manageable these are discoverable and standards” incursions deciding Legislature’s busi- question presented rare. and for when the Where “ought secret.” So far as type kept the relief are of the that do ness to be sought resolution, know, as a whole has judicial Legislature admit if the we once, in only military closed presented purely “political ques is a been issue tion,” at the time of the vote powers provisions emergency in 1861 separation of non-justiciable. the Union. Doubtless make it to secede from of our constitutions argue that on a 1944. In there are those who would Id. at 89 S.Ct. Baker Carr, and so divisive the question important what so court discussed makes open. been proceedings have We question non-justiciable: should acknowledge question that had that been We have noted how the Open Tennessee us, presented to provoked it would have an Meetings apply Act does not Legis- how, did, extended not, discussion. But what stan- lature and even if it it would dards would we have resolved the ques- opinion, our bind a subsequent General Therefore, tion? We think the gives Assembly. Constitution per- this case is not Legislature right the sole authority plaintiffs. make suasive for the decision. people press and the help- are not process. less in this point At this Article power “The legislature powerful Section becomes tool in only by limited the Constitution....” promoting an open government. If the Quinn Hester, 135 Tenn. 186 S.W. Legislature power abuses the delegated to legislature “The has un it in Article Section press is free limited to act in sphere, its own the people inform of the abuse. But the except by so far as restrained the Consti remedy must be in the court of tution of the state of and the United in opinion judiciary. and not the States.” Bank Commerce & Trust Co. of Senter, 569, 260 S.W. 146 Legislative Immunity B. political questions When must be all enjoyed by govern- Of the immunities decided, the co-equal” courts are “the least ment the legislative immunity officials government. branch of the Anderson perhaps the sweeping most and absolute. County Quarterly Judges Court v. the of Speech This shield arises under the and Circuit, 28th Judicial Debate Clauses state and federal (1978). They “expected are to eschew the II, constitutions. Article Section 13 of the id., normal political process,” and lean “to Tennessee Constitution provides: over encroaching backward to avoid on the shall, legislative representatives in branch’s .” Id. at 878. Senators cases, treason, require Legislature except felony, To the the all or satisfy judiciary peace, when the breach of the be Legislature privileged wishes to from during close arrest already its doors would continue an the session of the General Assembly, advanced and and in dangerous govern going returning trend of to and same; ing through any speech the courts. from the and for or House, debate in either shall not be Colorado, plaintiffs rely on Cole v. questioned any place. in (Colo.1983), 673 P.2d 345 which held that The words are almost identical to the sec- Open Meetings the state’s Act required I, in ond sentence Article Section of 6[1] legislative caucus meetings open to be the There- United States Constitution. though even the Colorado had Constitution fore, I, interpreting the cases Article Sec- II, provisions similar to our Article Section particularly helpful. tion are 6[1] But, Cole, 12 and in Article Section 22. States, Open Meetings the Act was enacted In Gravel v. United U.S. popular (1972), explicitly initiative and included 92 S.Ct. 33 L.Ed.2d Legislature. Supreme The court held that the United held it “in- States Court part act became of Speech the rules of each controvertible” that and De- Therefore, had, House. Legislature protect- bate Clause Article Section 6 statute, amending that ed a criminal decided member the Senate “from legislative liability questioning the business of caucus or civil else- and from senate, was not as ought kept respect “such to be secret.” where than with action) ‘legitimate at lator’s falls within the legislative actions].” 408 U.S. [his against ... legislative sphere’ 92 S.Ct. 2614. The Court said: action legislator calling question it into or Speech Clause was de- Debate civil, or must be dis- whether criminal co-equal to assure a branch of the signed missed.).” Thus, we are convinced government speech, wide freedom of de- under the and Debate Clause Speech without intimi- bate deliberation Constitution, are legislators our individual dation or threats from Executive suit, including immune kind It from protects Branch. thus members prosecutions and dam- directly im- criminal suits for against prosecutions injunctions, declaratory judg- pinge upon ages, threaten the legislator’s act is process. long We have no doubt Sena- ments —so as pro- part Legislature’s tor Gravel not be made answer— deliberative in terms questions either terms cess.1 defending prosecution— himself from protection In addition to

for the events that occurred at the sub- Clause, Speech legislators Debate en meeting. committee joy a immunity, common law which 92 S.Ct. Id. Supreme United has de States Court In Eastland v. United States Ser scribed these terms: Fund, vicemen’s U.S. S.Ct. recognized legis- We have also that state 1813, (1975), 44 L.Ed.2d 324 the Court enjoy immunity lators common-law from Speech that the held and Debate Clause liability legislative acts, im- for their an immunity extended the to congress same munity in origin is similar and ra- that being prospective men from sued for relief tionale that accorded Congressmen to McCormack, damages. or for In Powell Clause, Speech under or the Debate 486, 1944, 395 U.S. 89 23 S.Ct. L.Ed.2d 491 Brandhove, Tenney 71 U.S. (1969), Supreme the Court held that the (1951). 783, 95 L.Ed. 1019 In Ten- S.Ct. congressmen individual properly were dis that ney, Congress we concluded did not because protection missed of the abrogate § intend to Clause, the common- Speech and Debate but that immunity law of state Al- legislators. plaintiff could maintain action and ob though Tenney involved an action for declaratory tain a judgment against clerk, damages holding § under its is doorkeeper, House and the ser § actions geant-at-arms. equally applicable recog State courts have injunctive Speech seeking declaratory that the or relief. nized and Debate Clauses § In against holding of their constitutions bar suits that not create indi “does legislators declaratory injunc- liability” vidual or civil for acts “in a for undertaken traditionally relief. have legislators tive See Consumers Education and field where Nolan, distinguish ... did Protective Association v. 470 Pa. to act” we (the (1977)(“[I]f A.2d 675 it for those legis- damages between actions and not, course, immunity apply we have held the Sunshine 1. This does of bills. Since that General, void, Attorney Comptroller it is or the Law does not make these bills Treasurer, parties, despite being appropriate but as these also. named to dismiss defendants separate sought against position no relief de- We take on whether the General these no Assembly, Repre- allegations Senate or the of fendants there are no of their House bodies, sentatives, wrongdoing. Presumably they separate in a joined were as could purpose proper prospective injunctive against relief for declar- for the of case be sued or appropriations atory of enforcement the revenue relief. Indeed, prospective for ognized relief. we have history the extensive of such a recognized private right elsewhere “a civ- Supreme access. Id. The Court action, il an injunction pointed whether for out the Bill of Rights was damages, creates a distraction and against “enacted the backdrop long time, forces [legislators] to divert their history of trials being presumptively energy, and attention from legisla- open.” their Id. at 100 S.Ct. 2814. “In tive tasks litigation.” to defend the ... guaranteeing such freedoms as those of Although separation powers doc- speech press, the First Amendment justifies trine privilege a broader can protecting be read as right Congressmen than legislators everyone for state give to attend trials so as to actions, in criminal generally meaning we have explicit guarantees.” to those Id. equated legislative immunity Supreme S.Ct. 2814. The legislatures which state are pointed entitled un- Court out “right that the of access der 1983 to Congress- places that accorded traditionally open public, men under the been, Constitution. criminal long as trials have be amalgam seen as assured Supreme Virginia Court v. Consumers First Amendment guarantees speech Union, 446 U.S. 100 S.Ct. press.” Id. at 100 S.Ct. 2814. 64 L.Ed.2d 641 later, years Several the United States Therefore, legislator’s immunity Supreme guar Court further defined the from suit performing when or her leg his antees of the First Amendment. The islative prevents duties the courts from pointed Court out in dealing with the making Legislature justify its decision right claim of First Amendment of access to hold closed sessions. proceedings, to criminal the Court has em phasized two complementary B. consider United States Constitution 1) place process ations: whether the plaintiffs The allege also Legis- historically open at issue have been to the lature’s act of closing its committee meet- 2) press general public and whether ings speech press violates the free and free public plays significant positive access a provisions of the First Amendment to the role in the functioning particular United States Constitution and the due process question. in Press-Enterprise Co. process provisions of the Fifth and Four- Superior California, Court 478 U.S. of teenth Amendments. 2735, (1986); 106 1 S.Ct. 92 L.Ed.2d Herzke, 652, see also Ballard v. 1. The First Amendment (Tenn.1996). Supreme 661 The Court then pointed appellants, As out qualified went on to hold that there is a Supreme there are no United States Court right pre First Amendment of access to cases recognizing a First Amendment liminary in hearings as conducted Califor right legislative of access to state meet accessibility nia in of light of the tradition However, ings. Supreme Court has hearings public to these of and that types recognized right a First Amendment of hearings access to such is essential to the proceedings access to criminal trial even justice proper functioning of the criminal when specifically provided not for in the 10-13,106 system. Id. at S.Ct. 2735. Constitution. Newspapers, Richmond Inc. 555, Virginia, was, however, 448 U.S. 100 There no law S.Ct. common (1980). right right govern- 66 L.Ed.2d 973 This of of meetings attend only access was found after League the Court rec- ment bodies. See Abood v. of

777 Alaska, Ennis, Tennessee Rudolph 743 & L. Sunshine: P.2d Women Voters of Public, (Alaska 1987) 42 Society People’s Business Goes (citing of Profes- Labor, Tenn.L.Rev. Sun- Secretary sional Journalists v. (D.Utah enacted until Law was not 1985); shine itself John F.Supp. 1974. Watkins, Ar- Open Meetings under the J. Act, kansas Freedom of Information not the First Amendment was Since Note, (1984); Open

Ark.L.Rev. 268 Meet- of a his- adopted against backdrop long Fights ing Statutes: The Press being pre- tory of sessions Know”, “Right to 75 Harv.L.Rev. find we cannot that the sumptively open, (1962)). Legislative debates were Amendment right had a First plaintiffs in traditionally England held secret legislative meetings. access to this was carried over into colonial tradition 2. The Due Process Clause Society

America. Journal- of Professional ists, Watkins, (citing F.Supp. at 572 must whether Due We next decide 271). supra, at This tradition “resulted States Process Clause of the United Con- Congress both Continental gives plaintiffs a cause of stitution conducting Constitutional Convention their Amendment Fourteenth action.2 The F.Supp. in secret.” 616 proceedings provides the United States Constitution not re- Although constitutionally 572. any person deprive that no state shall quired, and life, the United States Senate liberty pro- without property due Const, House of have held their Representatives XIV, of law. amend. cess U.S. regular public sessions in basis since have not Because However, life, 1794 and Id. respectively. will claimed a we confine our loss the committee sessions have been routine- inquiry to have been de- whether ly only held open liberty property by since the prived of their Although majority Legislature. mid Id. acts of the 1970’s.

states, all, if not have enacted some form Supreme States The United requiring of a Law Sunshine select branch- liberty guaranteed has Court held that governments es of the state hold some “ Amendment by the Fourteenth ‘denotes public, of their we find no can bodily merely from restraint freedom instance these acts were to be where held of the individual to con right but also Abood, constitutionally required, see 743 tract, of the common engage P.2d at 340. life, useful occupations acquire knowl of to suggests enjoy history

Our in Tennessee that ... those edge generally not ... as legislative historically privileges long recognized local bodies did essential fact, happiness by free operate public. orderly pursuit feel the need to In to the of ” Regents Colleges State pointed by appellant, as free access men.’ Board out of of Roth, 564, 572, S.Ct. required v. 408 92 to local bodies state U.S. (1972) 2706-07, it, (quoting 33 L.Ed.2d 548 action to and sources indicate secure Nebraska, 262 U.S. 43 Meyer that an earlier version of the Sun- v. 1957 (1923)). 625, 626, 67 L.Ed. 1042 As strong opposition met with S.Ct. shine Law was noted, liberty right have does in the Richard L. Hollow we Legislature. See Regents process. State appellees were de- due See Board contend of Roth, hearings prived oppor- Colleges and an v. of notice 408 U.S. S.Ct. tunity Accordingly, we will limit to be heard. 33 L.Ed.2d 548 requisites procedural our discussion Appointment not right include the to attend meetings of A. The Court’s Expert governmental Leg- bodies. Therefore the aof “Law” islature’s acts did deprive not order, In its August the lower right. court indicated an appoint legal intent to expert testify regarding trial consti- The Supreme Court has fur order, tutional In August law. its ther held that the Fourteenth Amend the court said it “contemplating ap- was procedural ment’s protection property pointing a expert constitutional law to tes- a “safeguard security of interests tify in court ... as to the remedies avail- person already that a acquired has in spe able to the court” if plaintiffs prevailed cific benefits. These property interests — on the merits. The court cited Rules 702 Roth, many take forms.” interests — and 706 of the Tennessee Evi- Rules of 408 U.S. at “Property S.Ct. 2701. dence as authority. its Rule 702 provides: interests, course, are not by created scientific, technical, If spe- or other Rather, Constitution. they are created cialized knowledge substantially will as- and their by dimensions are defined exist sist the trier of fact to understand the ing rules or understandings that stem issue, evidence or to determine a fact in from an independent source such as state qualified a witness an expert by as law.” Id. at 92 S.Ct. 2701. We can skill, knowledge, experience,-training, or find no authority proposition for the may testify education in the form of an press property has a opinion or otherwise. interest in attending all Rule 706 authorizes the court to appoint Legislature. We have dealt with the inter experts under certain circumstances. est created Article Section 22 of our Constitution and how the legislature’s deci We do not think the rules of evi sion to hold closed sessions pres does not appoint dence authorize a court to an ex justiciable Therefore, ent a question. due pert questions witness on of law. Rule process does require notice and an refers to the “trier of fact” and an expert’s opportunity to be heard Legis before the assistance in determining a “fact in issue.” lature makes that decision. It is the duty of the court to determine the Pullen, law. Whitaker v. 22 Tenn. 466

As we have appellees found that (1842); Crawley, 6 S.W.3d deprived were not liberty of their or prop- Wakefield (Tenn.1999). erty actions, Legislature’s there can be no claim for process. a denial of due does, however, The court have This issue is without merit. appoint an amicus curiae to aid and in reaching assist the court

VI. proper pending questions resolution of parties We directed the Ferguson Paycheck, to brief two issues. questions (Tenn.1984); other that were raised in University the Vanderbilt Mitchell, Although court below. our disposition of 162 Tenn. 36 S.W.2d 83 the case on the merits ques makes these do not think the We difference moot, tions we will address them power because between this and what the trial capable yet are of repetition judge just and will degree— did is a matter of evade if review not likely ignore. addressed the which we most The would Crowell, one, courts. LaRoucke v. involving difference is a fundamental (to 585 (Tenn.Ct.App.1985). the an power appoint court’s inherent curiae) orders in granted by no error in the lower court’s power and the find amicus respect. this the Procedure to obtain Rules of Civil fact-finding

assistance with the court’s VIL to be in duties. The former is exercised Ferguson, “rare court’s order over- and unusual” cases. reverse the lower We may Expert 747. fact witnesses dismiss and enter an ruling S.W.2d at the motion to be more a matter employed complaint. as of course. the dismissing order here Court of

cause is remanded to the Circuit Representative Briley’s proceed- further County B. Davidson for may necessary. Tax the ings that as Amicus Curiae be costs Status appeal appellees. granted first Rep The trial court Briley, in capacity, resentative his official J., KOCH, concurring. the a in right plaintiff to be this action.

Then court on its own motion ruled the Jr., J„ KOCH, WILLIAM C. Briley could Representative not act as concurring. plaintiff, a would be allowed act as but to I concur with the court’s conclusion that brief, amicus, an a and file “examine wit members 101st General Assem- the of the fully participate any hearing nesses Const, bly either Tenn. art. did violate in regard the court has to this matter.” Const, II, § I, § Tenn. art. This curious turn events has not been Act, Open Meetings Tennessee TenmCode appealed parties, by any including (1993 8-44-101, §§ Ann. & Supp. -108 Representative Briley. 2000), when certain committees legislators meetings do held secret appellants argue groups single during there a session to authority no member con- is Assembly budget, appropriations in a participate General sider state bill, against remaining legislation. My lawsuit revenue members related But, opinion Representative Briley purpose filing separate this manner. this First, depart- is no a all longer operating emphasize points. as member of the three including Assembly government, but as friend of the ments of state out, court. must adhere to pointed Legislative Department, As we have the court appoint requirements does of the Constitution of power have the an amicus So, Second, though even Judi- question curiae. comes down to Tennessee. constitutional proper Department one of whether the role of an ami- cial has the sole adjudge cus the constitutionali- examining par prerogative includes witnesses and Legislative De- ticipating hearings party ty in the as would. conduct Department’s try part partment, We hesitate to to define the an Judicial by the Constitution plays aiding gen the court. In is itself circumscribed amicus eral, to maintain the necessity must exist a for the of Tennessee in order “there between the proper separation powers a member of the bar to serve services of Third, departments. our decision that reaching proper the court in resolution of two challenged violated neither questions presented pending or issues Const, Const, I, § Tenn. Ferguson, art. before the court.” S.W.2d Open Thus, nor the Tennessee at the role of an amicus art. Act misconstrued long Meetings should not be many duties —so as these include of the conduct issue of the court and as an endorsement duties serve the interests . in this case. litigants. not Id We the interests

I. passage. their than being open Rather to legislators, all these open are gave dispute events that rise to this who, only to those posi- virtue of their are not They part uncommon. are of an influence, tion or have annual, part become process played well-orchestrated inner circle.3 spring out each in Legislative Plaza Capitol the State in culminates covering The news media the General the enactment an appropriations bill Assembly process have been aware of this containing spending blueprint for state it, years. approving While not government ensuing year.1 for the fiscal capítol press hill corps has at least ac- process begins every year This on Febru- quiesced in it. representa- Some media ary 1 when the Governor to submits tives, writing while stories critical of the Assembly budget2 General a state and the process, have attempted to best their col- draft legislation needed to enact bal- leagues seeking copies of the Gover- budget ensuing year. anced for the fiscal budget legisla- nor’s or the results of the It Assembly ends when the General enacts tive leadership’s budget discussions before an appropriations bill and other legis- public their arrangement release. This necessary generate lation to the revenue appeared generally to have been satisfac- needed for a budget required by balanced tory all participants legisla- —both Const, II, § art. tors and the news media—at least until the Anyone remotely even familiar with this Assembly finally adjourned. 101st General process understands full well that the Gen- life, During two-year its 101st Gen- Assembly’s eral public debates and the Assembly eral be proved to one adoption appropriations eventual of an bill most in re- contentious sessions and accompanying represent revenue bills history. Controversy cent swirled from its only tip iceberg as far as the opening January after the Gover- Assembly’s General consideration of the sweeping changes nor called for blueprint State’s annual fiscal is con- system presented budget state tax cerned. Much activity more occurs behind predicated raising on million in new $365 scenes the offices of and in bidding, revenue. At the Governor’s hideaways in and around Nashville Assembly month-long spe- held a shielded from scrutiny. For at least cial during April session March and century, leg- the last half of the twentieth changing system tax leaders, consider the state officers, islative constitutional ad- adjourned acting. but without After re- ministration representatives, and others session, convening regular have met behind closed hammer doors to Assembly mil- spending proposals approximately out and revenue raised $171.5 taxes, please enough legislators will lion in and business assure new consumer 9-l-101(a) (1999) Knoxville, § pro- 1. Tenn.Code Ann. 3. Senator Tim Burchett of refer year government vides that the fiscal for state group ring meeting arranged for a select to a begins July year invited, 1 of each and ends on the he of state senators to which was following June 30. Rudolph observed: "I feel like the red-nosed get play any reindeer. I don’t reindeer budget proposed op- 2. The document includes Cruz, games.” Bonna la Business Tax M. de erating capital expenditures for the next Secret, Tennessean, May Studied in 9-4-5101(a), (b) year, fiscal Tenn.Code Ann. 2000, at 1A. (1999), and the revenue estimates for the period. §§ same Tenn.Code Ann. 9-4- 5101(c),-5104. on the system tax structuring the state’s appropriations bill for an

enacted pro- presenting adjourned agenda by year, fiscal and then 1999-2000 year 28,1999. fiscal budget for the 2000-2001 May posed on revenue million in new that included $375 controversy spend- and The over taxes system. The Gov- tax a revised state from As- did not subside when the General ing plan he had mirrored plan tax ernor’s legisla- adjourned. by Bolstered sembly to the second success submitted without that the state tive conclusion committee’s than the More legislative session. special fund the inadequate was system tax maneuvering oc- usual behind-the-scenes maintain Tennessee’s services needed to ensuing months as the curred over called the vitality, economic the Governor and the Governor legislative leadership special Assembly into a second General ground. Some of for common searched to reduce proposal to consider his session according plain- maneuvering, 3.75%, this tax rate from 6% to the state sales tiffs, legisla- in secret tax on occurred the 6% state sales to eliminate legis- groups and other tax struc- tive committees groceries, to revise the business ture, fruitless. proved a flat income efforts and to enact 8.75% state lators.4 These began continuing on No- vocal special tax. This session down Weighed 1999, 1, abruptly and ended tax and vember to a state income public opposition Despite 1999. a consensus November un- the three remaining from the rancor system tax re- the state should be legislative sessions productive structured, public opposition vocal to a Assembly eventually abandoned General tax, political partisanship, and state income sys- tax the state its efforts to restructure and the dispute between Senate bill for appropriations tem and enacted Representatives House of forestalled appropria- year. fiscal The the 2000-2001 tax changes floor votes on the state budget by the state tions bill balanced long adjournment of system. Not after beyond the the revenue estimates raising session, this the Governor threatened to Funding estimates of the State official complete special call a third session to using non-recurring reve- Board5 and sys- tax restructuring work on the state expenses. The Gov- recurring nues to fund tem. Assembly’s ef- ernor, calling the General vetoed the Budget,”6 “Fudge-It forts a regular The second session of the 101st Assem- bill. The General Assembly January appropriations convened on overriding the Governor’s bly re- no time again placed 2000. The Governor lost regarding the make decisions complaint in favor of sions and to 4. We must construe the accept allegations budget all the bills that were enacted revenue and appealing true the State is fact as because July effect on and took court’s denial of its motion to from the trial Sundquist, 2 dismiss. Doe v. S.W.3d (1999) requires §Ann. 9-4-5202 5. Tenn.Code Burson, 1999); (Tenn. Riggs v. Funding provide the Gen- Board to the State (Tenn. 1997). alleged plaintiffs have periodic Assembly with eral Governor throughout Democratic the House concerning rate of reports the estimated Caucus, Caucus, the Senate Democratic economy and the esti- growth state’s Committee, Repub the House Senate Finance revenues. of state tax and non-tax mates Caucus, Budget the Joint Conference lican Committee, and the leaders of the Senate Cheek, Law- & Duren M. de la Cruz 6. Bonna "deliberately, Representatives re House Budget; Sundquist Vows Approve a makers "secret, peatedly flagrantly” conducted Veto, at 1A. June Tennessean, meetings” deci to deliberate toward closed trial, veto and then adjourning expedited granted sine die on June case for an we 28, 2000. Attorney Tenn.R.App.P. General’s ap- plication for an extraordinary appeal. We This lawsuit was filed the Circuit step took this because the trial court’s Court for County days Davidson two after decision to conduct a appoint trial and to Assembly adjourned. 101st General expert constitutional law in accordance Complaining Assembly’s of the General with TenmR.Evid. 702 departed & 706 “habitual and willful resort to an secrecy,” accepted from the course of usual citizen, joined by individual later mem- judicial proceedings. pivotal ques- print bers of the media and several of tions in this case are issues of law that can associations, their professional asserted quite satisfactorily with be dealt based on Assembly had violated Const, Const, the record as it stands. § Tenn. art. § art. Open and the Tennessee

Meetings by “deliberately, Act repeatedly II. secret, flagrantly conducting closed committees.” THE SUBORDINATION OP GENERAL ASSEMBLY They also asserted that this conduct had Constitution “undermined confidence in the fis- The Constitution of Tennessee is the governmental cal and soundness of the tangible product aspiration of our citizens’ State of All Tennessee.” to live provides under the rule of law. It requested declaratory plain- relief. Some transaction, evidence of the solemn unfold tiffs also demanded that trial court ing governed since ever which appropriations invalidate the any bill and power government pro confer on the other revenue bills enacted in violation of protect peace, safety, mote and their Open Meetings Const, Tennessee Act.7 Other I, § happiness. Tenn. art. plaintiffs insisted that the General Assem- Thus, being rather than the source of the bly required report should be semi- people’s rights, the of Tennes Constitution annually to the courts on compliance its product see is the of the exercise of the with Open Meetings the Tennessee Act.8 people’s self-government inherent pre-existed the Constitution itself. defendants,9

On behalf of all the Attor- Beeler, Cummings ney 189 Tenn. 175- Reporter General and moved to dis- (1949); 76, 223 S.W.2d complaint miss the Stratton procedural various Claimants, Claimants v. Morris 89 Tenn. grounds, including and substantive lack of 497, 512-13, (1891); Ridley standing, legislative immunity, and 15 S.W. failure (3 Cold.) Sherbrook, to state a claim. After the trial court 43 Tenn. 574- denied the motion dismiss and set states, lator, part, Representative Briley §

7. Tenn.Code Ann. 8-44-105 Robert W. Nashville, meeting action taken at a "realigned” in violation sought later to be as Open Meetings Act Tennessee is void initially plaintiff. granted The trial court and of no effect. Representative Briley’s motion but later rele- gated curiae after him to the status of amicus 8-44-106(d) requires 8. Tenn.Code Ann. striking plaintiff dismissing him a him as government entities found to have violated as a defendant. This decision has not been Open Meetings the Tennessee Act to submit Therefore, appealed. Representative Briley is reports semi-annual re- written to the court only member of the 101st General Assem- garding compliance the Act. their with bly a defendant this that is not suit. complaint every 9. The names member Assembly legis- aas defendant. One pow- governmental on the exercise of government of state tions department No Tennessee. in its text and structure. transcends the Constitution of er elsewhere power and re- department important Each derives its of these Among the most must, authority the and governmental from Constitution allocation of strictions is the turn, in itself to the Constitu subordinate of separate departments to three power Polk, 76 requirements. Lynn tion’s v. executive, legislative, government-the J.). (1881) Thus, 121, (Turney, Tenn. 130 gov- of judicial.10 separation This and the Parliament, unlike British our General required Tenn. power, ernmental Const, Assembly’s power is limited and restrained II, 1, 2, §§ art. is intended Love, by the Moore v. 171 Constitution. accumula- liberty by preventing secure 982, 682, 686-87, 107 983 Tenn. S.W.2d authority single in a de- tion of excessive (1937); R.R. v. Louisville & Nashville Mistretta v. partment government. of (1 Davidson, County 33 Tenn. Court States, 361, 381, 109 S.Ct. United 488 U.S. of Sneed) 637, (1854); 670-71 v. Nor Smith (1989); 102 L.Ed.2d 714 The (5 Yer.) (1833). mant, 271, Tenn. 273 13 (James Madison) 47, 51 Federalist Nos. (Edward 1976); ed., M. Earle 1 Charles Assembly

Our decision that the General Secondat, Montesquieu, de de BaroN not violate Tenn. and its members did Const, Const, Spirit (London, & of Laws 163 G. Bell I, § art. art. 19 or Tenn. Ltd.1914). Sons, II, based, § 22 upon our conclusion Assembly is somehow departments government of While the from exempt compliance with the Constitu- “independent” have characterized as been tion, upon but rather our conclusion that “co-equal,” Thompson, v. Summers en- Constitution of Tennessee itself (Tenn.1988); 182, Moore v. 764 S.W.2d 189 Assembly pre- trusts the General with the Love, 686-87, at 171 Tenn. at 107 S.W.2d rogative to work secret whenever it 983-84, they have been viewed as also decides to. While the are at their functions “interdependent” because liberty to assail the wisdom of the found- 586, King, 973 overlap. State v. S.W.2d permit ers’ decision to the General Assem- State, (Tenn.1998); v. 529 588 Underwood secret, bly to work we are not. (Tenn.1975). mandating By S.W.2d functions, of overlapping these the framers III. sys- our Constitution created an extensive Courts To The Power of the Review gives and balances which tem of checks Assembly Acts of General to resist en- department each the means departments. protects The Constitution of Tennessee croachment v. rights County Quarterly Court people’s explicitly Tenn. Anderson Const, Circuit, the 28th Judicial Rights Judges art. I’s Declaration of of It (Tenn.Ct.App.1978). restric- by providing other limitations and S.W.2d 10. Tenn. Const, However, legisla § 3 vests all 125 S.W. art. recently authority Assembly; Supreme Court of Tennessee restated tive in the General Const, Ill, power simplified description each of these roles § 1 the executive art. vests Const, VI, Governor; legislative branch "[t]he and Tenn. art. when it noted in the make, alter, repeal authority judicial power Supreme 1 vests the in the has law; circuit, chancery, the executive branch administers and the and other Court law; Assembly. judicial and the branch by the and enforces the courts established General interpret apply the authority to of Tennessee not define has the The Constitution does Dentist department express v. TennesseeBd. powers of law.” Richardson each 1995). (Tenn. ry, Young, terms. Richardson v. 122 Tenn. gives department

also each the means to to invalidate acts on constitu- Polk, departments grounds. Lynn assure that the other tional conform 76 Tenn. at 127; their conduct see require- constitutional also Louisville & Nashville R.R. Davidson, County Court ments. 33 Tenn. (holding that the limita- Constitution’s Tennessee, people in the various Assembly tions on the General “would be Constitutions adopted since have de worse than useless” if the courts did not governmental cided how much power to have the to determine whether apportion to the Legislative Department Assembly’s acts conflicted with departments and the other government. Constitution). League Cody, Tennessee Conservation v. Thus, beyond dispute it reasoned is now 854, (Tenn.1987); 745 S.W.2d 857 Illustra authority to that the courts have the sole McCanless, Design tion Group, Inc. v. 224 actions legislative determine whether com 284, 294, 115, (1970); Tenn. 454 S.W.2d 119 port with Rich principles. constitutional 492, Young, Richardson v. 122 Tenn. at Dentistry, ardson v. Tennessee Bd. 913 125 at 668. Each of S.W. these constitu of 453; Sys. S.W.2d at Tennessee Small Sch. apportioned “larger tions has share” of (Tenn. McWherter, 139, v. 851 S.W.2d 148 governmental power Legislative De 1993). However, separa the doctrine of Love, partment. Moore v. 171 Tenn. at re powers requires tion of the courts to 687, Cases, 984; 107 S.W.2d at The Judges Assembly’s considerable spect the General 509, 528-29, 134, 102 Tenn. 53 S.W. 138 discretion, legislative v. Tennessee Helms (1899). Thus, Assembly’s General (Tenn. 545, Dep’t 987 549 Safety, S.W.2d power only to enact laws is limited 1999); Burson, 54, at Riggs v. 941 S.W.2d explicit implicit restrictions in the presume legislative actions are Constitution of Tennessee and the United State, Taylor constitutional. v. 995 S.W.2d Perry States Constitution. v. Lawrence 78, (Tenn.1999); n. Holder v. Tennes 85 7 Comm’n, 548, County Election 219 Tenn. Comm’n, 937 see Judicial Selection 551, 538, (1967); 411 S.W.2d 539 Williams (Tenn.1996). 877, prin S.W.2d These 883 Carr, 564, 578, v. 218 Tenn. 404 S.W.2d ciples prevent usurping the courts from 522, (1966); Beasley Cunningham, 529 v. Assembly’s infringing upon the General 334, 18, 338-39, 171 Tenn. 103 S.W.2d 19 policy-making role. (1937). grant Included this broad power prerogative is the exclusive to con IV. expenditure public moneys. trol Nolan, 222, 228-29, v. Peay 157 Tenn. 7 Review Limits of Constitutional 815, (1928); S.W.2d 816 State ex rel. Wel final arbiters of the The courts are the Thomason, 527, 534, don 142 221 v. Tenn. of Tennessee. meaning of the Constitution (1920). 491, S.W. 494 Tennessee State Bd. Metropolitan Gov’t v. 953, assuring Equalization, The chief means of 817 S.W.2d 955 (Tenn.1991). Assembly’s comports They General conduct with are not free to con- requirements strue the of Tennessee arbi- Constitution of Constitution 665, 681, State, trarily, Henley Tennessee is the of the courts to v. 98 Tenn. 352, (1897), invalidate actions that violate 41 and their construc- S.W. 355 re- years provisions the Constitution. Over one hundred tion of constitutional must ago, Turney spect persons Peter that the who Justice noted intentions of at is- adopted provision Constitution of Tennessee would be a the constitutional Ctr., L.P. v. judiciary’s power Surgery “dead sue. letter” without Cleveland Knight, bly’s policy decisions. Baldwin Bradley County Hosp., Mem’l 30 S.W.3d (Tenn.1978); Louis- (Tenn.2000); Shelby County v. 569 S.W.2d 281-82 County Nashville R.R. v. Court Hale, 745, ville & 200 Tenn. Davidson, Tenn. at 668. These intentions are reflected itself. the text of the Constitution 101st have measured the We Bell, Hatcher v. S.W.2d against provisions Assembly’s conduct (Tenn.1974). Thus, the courts must be pertain- of Tennessee the Constitution guided chiefly by the text of the Constitu legislative meetings. conduct of ing to the tion, Hale, County v. Shelby Tenn. of these plain requirements Based on the 510-11, 748; 292 S.W.2d at Bank Coo sections, we have determined (2 Yer.) (1831) per, 10 Tenn. 621-22 Assembly and its members 101st General Const, ., (Kennedy, concurring), rather than J art. did not violate either Tenn. Const, subjective will popular § their own notions of art. or the holding not reflected the Constitution itself. Meetings byAct Open Tennessee Claimants, Stratton Claimants v. Morris which the and the meetings from 90; That is all we have press 89 Tenn. at 15 S.W. at Luehrman were excluded. (1879). Dist., or 425, decided. We have not decided whether Taxing v. 70 Tenn. 438 Rule meetings not these violated Senate to discharging responsibility When their 83(2) 80(8). have we or House Rule Nor Constitution, construe the the courts Assembly’s whether the General decided not amend or alter the Constitution under meetings or of practice holding secret Leech, guise of construction. Ashe v. deciding to hold secret without 398, (Tenn.1983); 653 S.W.2d 401 Moore v. sort is or is not consis- public vote Love, 693, 171 at Tenn. 107 S.W.2d at 986. good public policy proper leg- tent with They give must the constitutional text its Cognizant of our con- procedure. islative ordinary meaning. and inherent ex State tripartite role in this stitutionally assigned Darnell, rel. v. Cohen 885 S.W.2d 63 to government, we leave these decisions (Tenn.1994); Bd., Martin v. Beer ultimately legislators themselves They (Tenn.Ct.App.1995). S.W.2d who elect them. to citizens light must also construe the text in practices usages that were well known provision adopted.

when the at issue was Nolan, Peay v. 157 Tenn. at 7 S.W.2d 817; Bilbrey, ex v. State rel. Witcher (Tenn.Ct.App.1994), Tennessee STATE of analy- in light of the construction and Duncan, sis of earlier cases. Dodds v. (1884); Ewin, Tenn. Jenkins David Eric PRICE. (8 Heisk.) Tennessee, Appeals of Court of Criminal challenge A constitutional at Knoxville. to measure the requires action the courts July Assembly’s against conduct General Appeal Application for Permission It applicable provisions. constitutional by Supreme Denied Court empower does not the courts to second- 26, 2001. Feb. Assembly’s policy judg- guess the General ments, views on superimpose their own Assembly, pass upon necessity Assem- wisdom or

Case Details

Case Name: Mayhew v. Wilder

Court Name: Court of Appeals of Tennessee

Date Published: Jan 11, 2001

Citation: 46 S.W.3d 760

Court Abbreviation: Tenn. Ct. App.