Dominy v. Davidson Cnty. Election Comm'n
| Docket Number | M2022-00427-COA-R3-CV |
| Decision Date | 31 May 2023 |
| Parties | DUANE DOMINY ET AL. v. DAVIDSON COUNTY ELECTION COMMISSION |
| Court | Tennessee Court of Appeals |
Session May 3, 2023
Appeal from the Chancery Court for Davidson County No. 21-500-III Ellen Hobbs Lyle, Chancellor
Plaintiffs brought an action against the Davidson County Election Commission, asserting that the Election Commission violated the Tennessee Open Meetings Act and Metro Code 2.68.020. The chancery court granted judgment on the pleadings to the Election Commission, concluding no violation occurred and that even if there had been a violation it was cured by a subsequent public meeting. Plaintiffs appealed. Defending the chancery court's judgment, the Election Commission argues that the trial court's ruling was correct on the merits and that the Plaintiffs are also not entitled to relief because they lack standing and because the matter has become moot. Because the Election Commission presented a well-developed and well-supported argument in favor of mootness and because the Plaintiffs have failed to respond to that argument, we conclude that opposition to the Election Commission's mootness argument has been waived. Accordingly, we dismiss this appeal.
Tenn R. App. P. 3 Appeal as of Right; Appeal Dismissed
James D.R. Roberts, Jr., Dickson, Tennessee, for the appellants Duane Dominy and Daniel Baron.
Junaid A. Odubeko, Edmund S. Sauer, and Richard W. F. Swor Nashville, Tennessee, for the appellee, Davidson County Election Commission.
Jeffrey Usman, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Carma Dennis McGee, J., joined.
This appeal has its origins in a petition to amend the charter of the Metropolitan Government of Nashville and Davidson County ("Metro"). In August 2020, the group 4 Good Government filed a petition seeking to hold a referendum to amend the Metro Charter by repealing tax increases, putting a cap on the issuance of bonds, and limiting transfers of public lands. The petition included the requisite number of signatures, but concerns arose regarding the validity of the petition.[1]
Presented with a petition which raised questions regarding potential deficiencies and the responsibility of the Election Commission, the Election Commission participated in two meetings with the Department of Law of the Metropolitan Government of Nashville and Davidson County ("Metro Legal"). These meetings took place on September 18, 2020, and September 22, 2020. They were not open to the public.
The Plaintiffs allege that the Election Commission violated Metro Code 2.68.020[2]and the Open Meetings Act, found at Tennessee Code Annotated section 8-44-101 et seq., by holding these meetings. The Election Commission subsequently held a public meeting on September 25, 2020. During this public meeting, there was an extensive discussion about whether the Election Commission should proceed with a referendum on the proposed amendments to the Metro Charter. The discussion, however, regarding the September 18 and 22 meetings was more limited in nature. After listening to public comments, the Election Commission voted to file for declaratory judgment to place before a court the question of the validity of the proposed charter amendment. The Election Commission also set a conditional date for the referendum.
The Plaintiffs subsequently filed a complaint alleging a violation of the Open Meetings Act and Metro Code 2.68.020, seeking declaratory judgment, an injunction, damages, attorney's fees, and costs.[3] The complaint alleged that the Election Commission conducted two secret, non-public meetings with Metro Legal, that Metro Legal was not actually the Election Commission's legal counsel because of its adverse interests, that third parties were present, that the Election Commission "began to engage in the formation of public policy and decisions" during the meetings, and that the substance of these meetings was not made public during the subsequent meeting held September 25, 2020. The Election Commission filed an answer in opposition and moved for judgment on the pleadings.
The chancery court granted judgment on the pleadings to the Election Commission, dismissing the complaint. The chancery court found that declaratory judgment was inappropriate because there was an adequate remedy under the Open Meetings Act.[4] The chancery court determined that the Plaintiffs had standing to challenge the proceedings as a violation of the Open Meetings Act,[5] that the pending litigation exception applied to render the meeting non-violative thereof,[6] and that the meeting on September 25, 2020, cured[7] any Open Meetings violation. The chancery court also found that the Metro Code merely provided logistics for implementing the Open Meetings Act but not a basis for a right of action. The Plaintiffs appealed.
On appeal, the parties contest whether the chancery court erred in its judgment, with the Plaintiffs arguing that the Election Commission held secret meetings and that the pending litigation exception did not apply because of the presence of third parties, because of Metro Legal's adverse interests, and because the complaint alleged that policy was formulated at the meetings. The Plaintiffs further assert that any cure was ineffective because the substance of the discussions at the prior meetings was never revealed.
The Election Commission argues that the chancery court was correct in its substantive rulings. The Election Commission also asserts that the claims are not justiciable because the Plaintiffs do not have standing and because any claims for relief are moot.
In advancing its mootness argument, the Election Commission notes that a case must remain justiciable until its disposition and that a moot case "has lost its justiciability either by court decision, acts of the parties, or some other reason occurring after commencement of the case." Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 204 (Tenn. 2009); see City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013) ().
The Election Commission cites to four cases in which this court dismissed claims alleging Open Meetings Act violations based upon mootness, arguing they mirror the circumstances of the present case. See Turnbull Pres. Grp., L.L.C. v. Dickson Cnty., No. M2021-00542-COA-R3-CV, 2022 WL 1711706, at *1 (); Person v. Bd. of Comm'rs of Shelby Cnty., No. W2007-01346-COA-R3-CV, 2009 WL 3074616, at *13-14. (Tenn. Ct. App. Sept. 28, 2009) (where the actions taken at a meeting held in violation of the Open Meetings Act were quickly rescinded, the issue was moot even though the plaintiff requested "additional remedies" other than invalidation of the governing body's act); Cathey v. City of Dickson, No. M2001-02425-COA-R3-CV, 2002 WL 970429 (); Hicks v. Metro. Gov't of Nashville & Davidson Cnty., No. 86-49-II, 1986 WL 10885, at *1 (Tenn. Ct. App. Oct. 3, 1986) ().
The Election Commission also notes that, after the challenged meetings, it held public discussion and debate and took public action on the petition, electing to set a conditional date for the referendum, voting to hire counsel, and obtaining a court decision regarding the validity of the petition. It further notes that 4 Good Government subsequently, in the spring of 2021, filed a second petition to amend the charter[8] and that the time limit set by statute for holding the election on the first petition has long expired. It argues that these facts have rendered any claim regarding a violation of the Open Meetings Act moot.
In their reply brief, Plaintiffs observe that the Election Commission has raised several issues, including the mootness argument.[9] The Plaintiffs designate the mootness argument with Roman numeral IV in the outline of their reply argument, but while they address other arguments raised by the Election Commission, the Plaintiffs note the Election Commission's mootness argument but do not provide any response thereto. The extent of the discussion of the mootness argument in the Plaintiffs' brief consists of the following statement: At oral argument, a concern that the reply brief referenced but did not respond to the mootness argument was noted in the questions from the court.[10] Having reviewed the Plaintiffs' appellate briefing, there is no argument therein addressing the mootness argument raised by the Election Commission or even an assertion that the Election Commission's argument is without validity.
The Tennessee Supreme Court has indicated that the role of the courts "is limited to deciding issues that qualify as justiciable, meaning issues that place some real interest in dispute." City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013) (citing Colonial Pipeline Co v. Morgan, 263 S.W.3d 827, 838 (Tenn. 2008)). Because courts "may not render advisory opinions...
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