Crowe v. Ferguson

• Decision Date: 29 July 1991
• Docket Number: No. 01-S-01-9010-CH00093,01-S-01-9010-CH00093
• Citation: 814 S.W.2d 721
• Court: Tennessee Supreme Court
• Parties: James CROWE, Darrell White, Harold Orr, and Rayburn Smith, Plaintiffs-Appellants, v. Roy W. FERGUSON, Sr. and Joyce Tune; Bedford County Election Commission, Edward Steelman, Kathleen Smith, Mary Ann Brame, Cindy Whitaker, Jesse Baugher, and Anna M. Clanton, Defendants-A 814 S.W.2d 721

Page 721

814 S.W.2d 721

James CROWE, Darrell White, Harold Orr, and Rayburn Smith Plaintiffs-Appellants, v. Roy W. FERGUSON, Sr. and Joyce Tune; Bedford County Election Commission, Edward Steelman, Kathleen Smith, Mary Ann Brame, Cindy Whitaker Jesse Baugher, and Anna M Clanton Defendants-A No. 01-S-01-9010-CH00093.

814 S.W.2d 721

Supreme Court of Tennessee, at Nashville.

July 29, 1991.

William L. Abernathy, Jr., Shelbyville, for plaintiffs-appellants.

John T. Bobo, Shelbyville, for defendants-appellees.

OPINION

DROWOTA, Justice.

This appeal arises out of an election contest for two seats on the County Commission of Bedford County. The Plaintiffs-Appellants, all unsuccessful candidates for County Commissioner, have appealed from a decision of the Bedford County Chancery Court upholding the election and the finding that an individual who runs in a primary election for a party nomination to one office and loses, may then be a candidate for a different office in the ensuing general election, provided that there was no primary for that office. The pertinent Defendants-Appellees are Roy W. Ferguson, Sr. and Joyce Tune, unsuccessful candidates for the offices of Bedford County Executive and Bedford County Clerk, respectively, in the May 1990 primary election, but successful candidates for County Commissioner in the August 1990 general election. The issues in this appeal are (1) whether the trial court was correct in determining that T.C.A. Sec. 2-5-101(f) did not prohibit defendants Ferguson and Tune from appearing as candidates for County Commissioner in the August 1990 election and (2) whether Tune was prohibited from qualifying because, due to reliance on an official opinion, she missed the qualifying deadline. For the reasons set forth below, we affirm the disposition of this case made by the trial court.

The essential facts of this litigation are not in dispute. In the May 1990 primary election, Joyce Tune appeared on the ballot as a Democratic candidate for Bedford County Clerk, and Roy Ferguson, Sr. ran as a Democratic candidate for Bedford County Executive. Both Tune and Ferguson lost their primary races, and thereafter decided to run for a seat on the County Commission. The race for County Commissioners in the August 1990 general election was nonpartisan in that no political party had nominated candidates for the race and, accordingly, candidates Tune and Ferguson appeared on the ballot under the heading "Independents." Both were elected.

The qualifying deadline for the August general election was June 7, 1990. Because there had not been a primary election for the County Commission race, it was only necessary to file a petition by the deadline to qualify for the August general election. Prior to the qualifying deadline, Anna M. Clanton, Bedford County Registrar-at-Large, received an opinion from the State Election Coordinator which stated that under T.C.A. Sec. 2-5-101(f) ¹ persons who had been candidates for County Clerk or County Executive in the May 1990 Democratic primary could not qualify as candidates for the August 1990 County Commission election. Before the June 7, 1990 qualifying deadline, Ferguson filed a qualifying petition for the County Commission election, but the Bedford County Election Commission rejected the petition. Joyce Tune did not file a qualifying petition before the deadline because the Bedford County Registrar-at-Large informed her that she could not qualify. The Registrar based her information on the opinion from the State Election Coordinator alluded to above. Tune asked the Registrar several times prior to the deadline whether there had been a change in the law which would permit her to run for County Commissioner, but the answer was always "no."

After the June 7, 1990 qualifying deadline, but before the August general election, the State Election Commission, relying upon two opinions issued by the State Attorney General, reversed their earlier opinion and advised the Bedford County Election Commission that T.C.A. Sec. 2-5-101(f) did not prohibit an unsuccessful candidate in the May primary election from running as a candidate in a different, nonpartisan, race in the August general election. Upon learning of this opinion, Tune immediately filed a qualifying petition for the County Commissioner's race (which was accepted). In the August 1990 general election, Tune was elected as a Commissioner for the Seventh District of Bedford County and Roy Ferguson, Sr. was elected as a Commissioner for the First District.

After the August election, the Plaintiffs, unsuccessful candidates for County Commissioner, brought this action predicated upon T.C.A. Sec. 2-5-101(f) to contest the election of Ferguson and Tune as Bedford County Commissioners. The Plaintiffs argued in the trial court (and take the position on appeal) that the opinions of the State Election Commission and the State Attorney General are in error and that T.C.A. Sec. 2-5-101(f) should be interpreted as prohibiting any person defeated in a primary election from qualifying as an independent in any race in the ensuing general election. Furthermore, Plaintiffs contend that Tune filed her qualifying petition after the deadline had passed and that pursuant to T.C.A. Sec. 2-5-101(g) ("no additional candidates may qualify [after the deadline]") she was prohibited from qualifying. When the matter was tried, the Chancellor ruled that T.C.A. Sec. 2-5-101(f) only prohibits a person defeated in a party primary election from running in the general election for an office for which there had been a primary. Because the County Commissioner's election was a non-partisan race without a primary, the Chancellor found that both Ferguson and Tune were eligible as candidates for County Commissioner, even though they had been defeated in the May 1990 Democratic primary elections for different offices. ² The Chancellor also held that Tune was properly on the ballot despite having missed the qualifying deadline due to her reliance on representations made by election officials regarding her ineligibility to run in the general election.

As stated, the first question in this case is whether T.C.A. Sec. 2-5-101(f) prohibits persons who are unsuccessful candidates in a party primary from subsequently running in a non-partisan general election for a different office. We approach this question mindful that the cardinal rule of Tennessee statutory interpretation is to ascertain and give effect to the intent and purpose of the Legislature in relation to the subject matter of the legislation, all rules of construction being but aids to that end. Rippeth v. Connelly, 60 Tenn.App. 430, 447 S.W.2d 380, 381 (1969). A statute must be construed so as to ascertain and give effect to the intent and purpose of the legislation, considering the statute as a whole and giving words their common and ordinary meaning. Marion Cty. Bd. of Comm'ners v. Marion Cty. Election Comm'n, 594 S.W.2d 681, 684-85 (Tenn.1980). The Court should assume that the Legislature used each word in the statute purposely and that the use of these words conveyed some intent and had a meaning and purpose. Anderson Fish & Oyster Company v. Olds, 197 Tenn. 604, 277 S.W.2d 344, 346 (1955). Furthermore, this Court may review previous legislation on the subject in an effort to learn the present intention of the Legislature. Id. 277 S.W.2d at 346.

Tennessee's Election Code, Title 2 of Tennessee Code Annotated, was enacted substantially in its present form in 1972. The purpose of the Election Code was "to restate, supplement, consolidate, clarify, and revise the election laws of this State and other matters related to them in order to establish a uniform law of elections protecting the freedom and purity of elections." Caption to Public Acts, 1972, Chapter No. 740. In 1973, the Legislature enacted the first "Sore Loser" provision, as the present T.C.A. Sec. 2-5-101(f) is often referred to. The pertinent part of the original provision read: "It is unlawful for any person to qualify as an independent candidate and as a primary candidate for the same office in the same year. Neither shall any person defeated in an August primary election qualify as an independent for the same office in the November general election." Public Acts, 1973, Chapter 106, Section 2. The first sentence of this provision is today's T.C.A. Sec. 2-5-101(f)(2).

In 1974, the Legislature altered the original Sore Loser provision by deleting the second sentence and substituting, "Neither shall any person defeated in a primary election qualify as an independent for the general election." Public Acts, 1974, Chapter 731, Section 1. The phrase "for the same office" and references to August and November were deleted. This provision is essentially the same as today's T.C.A. Sec. 2-5-101(f)(3). Clearly, the Legislature, by deleting the phrase "for the same office" intended to expand the scope of the Sore Loser provision. The question, then, is just how far the Legislature intended for this prohibition to reach? In addressing this question, the focus must...