Campbell v. Sundquist
| Decision Date | 26 January 1996 |
| Citation | 926 S.W.2d 250 |
| Parties | Penny CAMPBELL, et al, Plaintiffs-Appellees, v. Don SUNDQUIST, Governor of the State of Tennessee, et al, Defendants-Appellants. |
| Court | Tennessee Court of Appeals |
Charles W. Burson, Attorney General and Reporter, Jerry L. Smith, Deputy Attorney General, for defendants-appellants.
Abby R. Rubenfeld, Nashville, for plaintiffs-appellees.
Rebecca L. Brown, Robert K. Rasmussen, Susan L. Kay, Nashville, for amicus curiae, American Civil Liberties Union of Tennessee.
James L. McHugh, Jr., Carolyn I. Polowy and Paul M. Smith, Washington, D.C.; Irwin Venick, Nashville, for amicus curiae, American Psychological Association, The National Association of Social Workers, and The Tennessee Chapter of the National Association of Social Workers.
Robyn E. Smith of Weed, Hubbard, Berry & Doughty, Nashville, for amicus curiae, American Public Health Association.
Glen G. Dukes, Jr., Nashville, Suzanne Goldberg, Staff Attorney, LAMBDA Legal Defense & Education of New York, for LAMBDA Legal Defense and Education and The Tennesseans for Equality.
Peggy June Griffin, Dayton, amicus curiae, pro se.
This appeal involves a constitutional challenge under the Tennessee Constitution to Tennessee's Homosexual Practices Act, T.C.A. § 39-13-510 (1991). On May 26, 1993, plaintiffs Penny Campbell, John Doe, Jane Doe, James Tallent, and Christopher Simien, 1 filed a "Verified Petition for Declaratory and Injunctive Relief" in the Circuit Court for Davidson County, Tennessee, against defendants Don Sundquist, Governor of the State of Tennessee, 2 Charles W. Burson, Attorney General of the State of Tennessee, and Victor S. Johnson, III, District Attorney General for Davidson County, each in his official capacity. The complaint, as amended, seeks a declaratory judgment pursuant to T.C.A. § 29-14-101, et seq., (1980) that the Homosexual Practices Act (HPA), a criminal law, violates plaintiffs' right to privacy under Article I, Sections 1, 2, 3, 7, 8, 19, and 27 of the Tennessee Constitution and their right to equal protection of the laws under Article I, Section 8 of the Tennessee Constitution. Plaintiffs also seek to enjoin the enforcement of the HPA.
Each of the plaintiffs admitted that they have violated the HPA in the past, and that they intend to continue violating the HPA in the future. Plaintiffs allege that they are each harmed by the HPA because it criminalizes their private, intimate conduct, and that each of them believe they are threatened with prosecution for violations of the statute, which could result in plaintiffs losing their jobs, professional licenses, and/or housing should they be convicted.
Defendants answer filed September 24, 1993, denies that the HPA violates any provision of the Tennessee Constitution.
On July 16, 1993, the defendants filed a Motion to Dismiss on the grounds, inter alia, that the plaintiffs' petition sought an advisory opinion which the court was not authorized to render, that none of the plaintiffs had been prosecuted under the Act and therefore their allegations were speculative and hypothetical, that the plaintiffs lacked standing, and that the issue presented was not ripe or justiciable. On October 4, 1993, the trial court denied the defendants' motion to dismiss, finding that the Declaratory Judgment Act, T.C.A. § 29-14-101, et seq., could properly be used to challenge the constitutionality of statutes imposing criminal sanctions on individuals, and that the plaintiffs had standing to bring this action. On October 4, 1994, the defendants moved for summary judgment on the grounds, inter alia, that this case presented only a question of law, that the applicable statute of limitations had elapsed, that this action could not properly be maintained under the Declaratory Judgment Act, and that the Tennessee Constitution was not violated by the HPA. On December 7, 1994, the trial court entered an order denying the defendants' motion for summary judgment.
On December 7, 1994, the plaintiffs filed a motion for summary judgment, supported by affidavits of ten expert witnesses as well as discovery materials previously filed with the court. On February 2, 1995, the trial court entered an order granting summary judgment to the plaintiffs. In its order the trial court found that private sexual activity between consenting adults of the same sex is protected by the state constitutional right to privacy, that the State had failed to show a compelling state interest sufficient to prohibit private sexual activity between consenting adults of the same sex, and that the HPA is overbroad in that it prohibits behavior which is constitutionally protected. The court pretermitted the equal protection issue and declined to enjoin the enforcement of the HPA.
The appellants timely filed a notice of appeal on February 24, 1995, and present four issues for our review. As stated in the appellants' brief those issues are:
Whether the trial court erred in ruling that the plaintiffs could bring this action against state officials under the Tennessee Declaratory Judgment Act?
Whether the trial court erred in ruling that there was sufficient state action to allow the plaintiffs to maintain their claims when plaintiffs admitted none of them is or ever has been directly threatened with or subjected to prosecution under T.C.A. § 39-13-510?
Whether the trial court erred in holding that the plaintiffs filed this case within the applicable statute of limitations when the record shows § 39-13-510 became effective on November 1, 1989, and no state action other than passage of the act is alleged, and this action was filed on May 26, 1993.
Whether the trial court erred in holding that the right to privacy first announced in Davis v. Davis, 842 S.W.2d 588 (Tenn.1992) encompasses the right to engage in homosexual sodomy and that the state must demonstrate a compelling state interest to prohibit such activity?
The appellees also present two additional issues for our review. As stated in the appellees' brief, those issues are:
Whether the "Homosexual Acts" Statute which criminalizes certain private sexual acts between some consenting adults while leaving the very same acts legal when engaged in by different adults, creates a constitutionally-impermissible classification that violates the right to equal protection of the laws guaranteed by the Tennessee Constitution?
Whether an injunction should be issued against enforcement of T.C.A. § 39-13-510 because it is an unconstitutional criminal statute that imposes an unwarranted restriction on the fundamental right to privacy as protected by the Tennessee Constitution?
This case is before us pursuant to the trial court's grant of summary judgment to the plaintiffs. A trial court should grant a motion for summary judgment only if the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Tenn.R.Civ.P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); Dunn v. Hackett, 833 S.W.2d 78, 80 (Tenn.App.1992). The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd, 847 S.W.2d at 210. When a motion for summary judgment is made, the court must consider the motion in the same manner as a motion for directed verdict made at the close of the plaintiff's proof; that is, "the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence." Id. at 210-11. In Byrd, the Tennessee Supreme Court stated:
Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. [citations omitted]. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.
Id. at 211. (emphasis in original). Disputed facts "must bear directly and materially upon the legal elements of the claim or defense being tested by the summary judgment motion." Phan v. Sanders, 818 S.W.2d 18, 19 (Tenn.App.1991) (quoting Macon County Livestock Market, Inc. v. Kentucky State Bank, Inc., 724 S.W.2d 343, 348 (Tenn.App.1986)).
T.C.A. § 39-13-510 (1991) provides:
Homosexual acts--It is a Class C misdemeanor for any person to engage in consensual sexual penetration, as defined in § 39-13-501(7), with a person of the same gender.
T.C.A. § 39-13-501(7) (1991) provides:
"Sexual penetration" means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body, but emission of semen is not required....
We will first address the appellants' arguments regarding the plaintiffs' standing to bring this action under the Declaratory Judgment Act. In doing so we consider plaintiffs' first two issues together. The appellants argue that the plaintiffs do not have standing to maintain this action, because none of the plaintiffs have been prosecuted under the HPA; therefore, none of them have suffered an injury as a result of the statute. The appellants further argue that of the twenty-five arrests reported for violations of T.C.A. § 39-13-510, twelve resulted from public activity, and one resulted from activity involving a juvenile. The appellants contend that while the disposition of the remaining twelve arrests is unknown, the appellees...
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