Dorrier v. Dark

• Decision Date: 17 February 1976
• Citation: 537 S.W.2d 888
• Parties: C. R. DORRIER et al., Appellants, v. James O. DARK, Appellee.
• Court: Tennessee Supreme Court

Page 888

537 S.W.2d 888

C. R. DORRIER et al., Appellants, v. James O. DARK, Appellee.

Supreme Court of Tennessee.

Feb. 17, 1976.

James H. Harris, III, Metropolitan Atty., Dept. of Law of Metropolitan Government of Nashville and Davidson County, Nashville, William F. Howard, Metropolitan Atty., Dept. of Law of Metropolitan Government of Nashville and Davidson County, Nashville, for appellants.

Charles H. Warfield, Farris, Evans & Warfield, William L. Small, Farris, Evans & Warfield, Nashville, for appellee.

OPINION

FONES, Chief Justice.

Written charges of neglect of duty and conduct unbecoming a teacher were preferred against James O. Dark, a tenured teacher, by the Director of Schools. He requested and was granted a hearing before the Metropolitan Board of Education, in accordance with the provisions of T.C.A. § 49--1416, which resulted in a judgment terminating him as a teacher.

Dark sought judicial review of that decision in the Chancery Court of Davidson County pursuant to T.C.A. § 49--1417. In addition to assailing the School Board's decision for lack of merit to the charges, Dark asserted that the Board's action was void because it was 'formulated' in a closed session in violation of T.C.A. § 8--4401 et seq., the Open Meeting Act.

Upon a motion by defendants, the nature of which does not appear in the record, the learned Chancellor held that the decision made by the Metropolitan Board of Education at the hearing conducted pursuant to T.C.A. § 49--1416 was void because the 'meeting' was in violation of T.C.A. § 8--4401. The order recited that, (1) 'upon stipulation of counsel for defendants the Court finds that the Metropolitan Board of Education is 'a governing body' as defined in T.C.A. § 8--4402 and (2) that the Metropolitan Board of Education did meet in executive session to consider testimony concerning plaintiff and reach a decision on plaintiff's termination.'

This was in effect a final determination although the Chancellor retained jurisdiction over the Board and the subject matter, for compliance supervision as authorized in T.C.A. § 8--4406(d).

It is necessary that we waive compliance with Rules 14 and 15 of this Court in order to adjudicate the contentions of the Board on the merits. Having exercised our discretion to do so, the issue raised by the appellant Board is that the entire Open Meetings Act is unconstitutional for one or more of the following reasons: (1) the Act is void for vagueness; (2) the Act abridges free speech; (3) the Act is broader than its caption; and (4) the Act is unreasonable and arbitrary for failure to allow closed meetings under any circumstances. Appellant concludes by urging that elision of a part or parts of the Act cannot save it from the stamp of total unconstitutionality.

Appellant calls our attention to the fact that this Court has heretofore decided only one issue involving the Open Meetings Act. In Memphis Publishing Company v. City of Memphis, 513 S.W.2d 511 (Tenn.1974), we held that the phrase 'adequate public notice' as used in T.C.A. § 8--4403 was not unconstitutionally vague.

In asserting that the Act is void for vagueness, appellant's brief contends that the Open Meetings Act is replete with undefined terms, that men of common intelligence must necessarily guess at their meaning and differ as to their application. More specifically it is stated that 'governing body' and 'public body' are imprecise terms, subject to conjecture and will be interpreted differently by the courts of this State until these ambiguous terms are either defined or the Act declared void by this Court. In the meantime, it is asserted, all government action is cast in doubt by the stringent sanction of nullification provided in T.C.A. § 8--4405.

Parenthetically, we detect a strong implication that as a result of this appeal we are expected to provide a definition of every term in the Act and give an advisory opinion as to the precise scope and coverage with respect to every conceivable body in existence in the State. We have neither constitutional authority nor inherent power to give advisory opinions. This is a court of appeals and errors, and we are limited in authority to the adjudication of issues that are presented and decided in the trial courts, and a record thereof preserved as prescribed in the statutes and Rules of this Court; and finally, as presented here on proper assignments of error and brief in compliance with the Rules of this Court.

In further argument, appellant asks what are government bodies, governing bodies, governmental bodies and public bodies? Our attention is not directed to any particular body whose status is said to be uncertain and undetermined under the terms of the Act. It is vaguely suggested that there is such confusion rampant across the State resulting from the failure of the Legislature to precisely define these and other terms that members of many bodies do not know whether or not they are covered by the Open Meetings Act.

Appellant is not such a body. We note that the terms are sufficiently clear to enable appellant to stipulate that it is a governing body as defined in T.C.A. § 8--4402. Having no specific issue involving the disputed coverage of a body or bodies we must deal with the application of the Act in the abstract.

Appellant relies upon Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Connally was the Commissioner of Labor for the State of Oklahoma, and the construction company had a number of contracts with the State involving the construction of bridges. The construction company brought a suit to enjoin the commissioner and certain county officers of the State of Oklahoma from enforcing the provisions of a statute on the ground that its was unconstitutionally vague. The statute provided, among other things, that persons employed by contractors performing work for the State must pay, '. . . not less than the current rate of per diem wages in the locality where the work is performed . . .' 269 U.S. at 388, 46 S.Ct. at 126. The penalty imposed for violation was a fine of not less than fifty nor more than five hundred dollars or imprisonment for not less than three nor more than six months. Each day that a violation continued was declared to be a separate offense. Specifically, the Commissioner of Labor claimed that the rate of wages paid by the construction company to laborers was $3.20 a day whereas the current rate in the locality where the work was being done was $3.60 per day. According to the proof, the construction company was paying its laborers various rates ranging from $3.20 a day to as high as $6.50 per day. There was proof that representative employers in the area were paying varying rates from as law as $100 per month to $4.05 per hour. Throughout the areas of Oklahoma where the construction company was performing work, the proof showed that employers of construction labor based the wages paid an individual worker upon a variety of factors, such as the class and kind of work performed and the efficiency of the workmen.

The constitutional attack was predicated on the statutory phrase 'the current wage in any locality'--that no one could determine that figure with any degree of certainty. Further the term 'locality' itself was fatally vague and uncertain. The United States Supreme Court agreed, pointing out that the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it, what conduct on their part will render them liable to its penalty,

'. . . and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' (citations omitted). 269 U.S. at 391, 46 S.Ct. at 127.

It is apparent that the decision in Connally rested upon a factual showing that a sum certain representing a current prevailing wage for construction workers was a nonexistent figure both for lack of uniformity in the practice of employers and the uncertainty of determining the boundaries of 'locality.'

We are not impressed that any analogy exists between Connally and the instant case.

We do not have before us a penal statute. The Legislature has imposed no fine or imprisonment against the members of a body who may be in violation of the Open Meetings Act. The sanction is nullification of action taken in violation of the Act and injunction against repeated violations. As this Court pointed out in Memphis Publishing Company v. City of Memphis, supra, we are dealing with a remedial statute where the requirements of specificity are less stringent.

We do not find Connally, or any of the other cases relied upon by appellant to be persuasive on the issue of vagueness.

When a constitutional attack is levied on a statute, we are required to indulge every presumption in favor of its validity and resolve any doubt in favor of, rather than against, the constitutionality of the Act. Memphis, Publishing Company v. City of Memphis, supra; Black v. Wilson, 182 Tenn. 623, 188 S.W.2d 609 (1945) and Corn, et al. v. Fort, 170 Tenn. 377, 95 S.W.2d 620 (1936).

The failure to define 'public body' as used in the definition of 'governing body' is criticized, but the question we must decide is not whether a precise definition of public body would have been desirable or why, but simply whether it was necessary in the context of the Act in order to escape unconstitutional vagueness.

The definition of a 'governing body' is contained in T.C.A. § 8--4402:

"Governing body' means the members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.'

In studying the legislative history of the Open Meetings Act, we observe that at several stages the term 'public body' was defined by...