Hearn v. Pleasure

• Decision Date: 29 July 1981
• Citation: 624 S.W.2d 556
• Parties: Carolyn HEARN, et al., Plaintiffs-Appellees, v. Mose PLEASURE, Individually and in his capacity as Commissioner of the State of Tennessee Department of Human Services, Defendant-Appellant.
• Court: Tennessee Court of Appeals

Page 556

624 S.W.2d 556

Carolyn HEARN, et al., Plaintiffs-Appellees, v. Mose PLEASURE, Individually and in his capacity as Commissioner of the State of Tennessee Department of Human Services, Defendant-Appellant.

Court of Appeals of Tennessee, Middle Section, at Nashville.

July 29, 1981.

Rehearing Denied Sept. 25, 1981.

Appeal Denied by Supreme Court Nov. 30, 1981.

David A. Ettinger, Legal Services of Middle Tennessee, Gallatin, and Linda L. Moore, West Tennessee Legal Services, Jackson, for plaintiffs-appellees.

William B. Hubbard, Chief Deputy Atty. Gen., Nashville, for defendant-appellant; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.

OPINION

CANTRELL, Judge.

This action presents the question of the right to pretrial discovery of evidence in the files of the Department of Human Services where the Department has filed a petition in Juvenile Court to terminate parental rights or to remove a child from the custody of its natural parents.

On June 19, 1979, the Department of Human Services filed a petition against Carolyn Hearn in Wilson County Juvenile Court alleging that her child was a dependent and neglected child and should be removed from her custody. The child was taken and placed in the custody of the Department of Human Services pursuant to an emergency ex parte order.

On July 2nd, 1979, the Department of Human Services filed a second petition against Carolyn Hearn in Wilson County Juvenile Court, alleging that two of her other children were dependent and neglected children and should be made wards of the court. The Juvenile Court set a hearing on this petition for September 25th, 1979.

On June 20th, 1979, the Department of Human Services filed a petition against Nancy Jane Collins seeking to terminate her parental rights to her child, Candy Lynn Collins. A hearing was scheduled in Juvenile Court for October 9th, 1979.

Carolyn Hearn, through her attorney, requested on July 10th, 1979 that she be allowed to inspect the Department of Human Services files relative to the petitions brought against her. A similar request was made on behalf of Nancy Jane Collins. The plaintiffs were informed that they would not be allowed to inspect the requested documents and that it was the policy of the Department of Human Services to refuse to voluntarily allow such inspection by parties to petitions seeking to limit parental rights.

On August 20th, 1979, plaintiffs filed motions in the Juvenile Court for Wilson County, Tennessee, asking that the Department of Human Services be ordered to produce for inspection and copying material in its files relevant to the petitions filed against them. These motions were denied. On September 14th, 1979, the plaintiffs filed this action in the Chancery Court of Davidson County, naming the Commissioner of the Department of Human Services as a defendant, alleging that the Department of Human Services had in its files certain documents relevant to the petitions pending against the plaintiffs, and seeking to be allowed to inspect and copy the requested documents. The complaint further sought a declaration that the policy and practice of the defendant in denying access by plaintiffs to the documents described in the complaint was unlawful.

Both sides made motions for summary judgment and the Chancellor entered an order declaring the policy of the defendant to deny opposing counsel or parents access to the relevant Departmental records prior to a court hearing unconstitutional under the provisions of the Tennessee Constitution and the Constitution of the United States. The Chancellor's order permanently enjoined the defendant to make relevant and non-privileged records available to parents reasonably in advance of hearings to terminate parental rights or dependency and neglect hearings.

The Commissioner has appealed.

The first issue raised by the appellant challenges the jurisdiction of the Chancery Court to determine the right to discovery in Juvenile Court. The authorities cited by the appellant deal with the exclusive jurisdiction of juvenile courts over the proceedings involving liberty, well-being, rights and obligations of juveniles. We are of the opinion that the appellant is confusing the jurisdiction of the Chancery Court to render declaratory judgments, injunctions, and to entertain a bill of discovery with the jurisdiction over juveniles themselves. A bill of discovery, although now rendered nearly obsolete by modern discovery rules, is one of the remedies adopted by the early Chancellors to prevent unscrupulous litigants from taking advantage of the common law rule which prevented the parties from testifying in their own behalf. This interesting phenomenon of the early common law and the reaction of the Court of Chancery to it is discussed in Gibson's Suits in Chancery, § 1184.

Since a bill of discovery falls within the ancient and inherent jurisdiction of the Chancery Court and it is not disputed that the Chancery Court has the jurisdiction to grant injunctive relief and to render declaratory judgments, we conclude that the Chancellor had jurisdiction over the action filed by the appellees.

We believe the remaining issues raised by the appellant can be summarized as follows: Does the denial of pretrial discovery in Juvenile Court conflict with the Due Process provisions of the Constitution of the United States or of the State of Tennessee?

At the outset we should stress three things. First, what plaintiffs are seeking is pre-trial discovery of evidence in the files of the Department of Human Services. T.C.A. § 37-218 makes clear that any party may subpoena witnesses and compel production of papers at the hearing itself. Second, a party has the absolute right to appeal and a trial de novo in the Circuit Court. T.C.A. § 37-258. Third, the concept of due process is closely related to the concept of "fairness." "A basic requirement of due process is a fair trial in a fair tribunal." State ex rel Anglin v. Mitchell, 596 S.W.2d 779 (Tenn.1980).

From the perspective of history, we would have to say that the Due Process provisions of our Constitution did not cover the right to pre-trial discovery. Discovery was unknown to the early common law. Before the plight of litigants touched the King's conscience and the Chancellors came to their aid and granted some limited relief under the bill of discovery, a trial at common law was a sporting event where the parties were expected to act like gentlemen but where the rules of the game did not require an adversary to tip his hand. This influence on the development of the common law is discussed in Wigmore on Evidence, Vol. VI, § 1845, p. 488:

(a) In the first place, the common law originating in a community of sports and games, was permeated essentially by the instincts of sportsmanship. This has had both its higher and lower aspects. On one hand, it has contributed a sense of fairness, of chivalrous behavior to a worthy adversary, of carrying out a contest of equal and honorable terms. The presumption of innocence, the character rule, the privilege against self-crimination and other specific rules (to name those of evidence alone) show the effect of this instinct against taking undue advantage of an adversary. The minor rules of professional etiquette (surviving more markedly in England than in the United States) illustrate the same tendency even more clearly. On the other hand, it has contributed to lower the system of administering justice, and in particular of ascertaining truth in litigation, to the level of a mere game of skill or chance. Some of the effects of this unfortunate tendency have been noted in other places (§§ 57, 194 supra ; § 2251 infra ). It may be seen also in the rule allowing a new trial for an immaterial error in a ruling upon evidence (§ 21 supra ), and in the general attitude towards rules of procedure as expedients for winning the game of litigation irrespective of the ascertainment of truth. The right to use a rule of procedure or evidence precisely as one plays a trump card or draws to three aces or holds back a good horse till the home stretch, is a distinctive result of the common law moral attitude toward parties in litigation.

Now one of the cardinal moral assumptions in a contest of skill or chance is that a player need not betray beforehand his strength of resource, and that the opponent cannot complain of being surprised. The accepted laws and moral standards of bridge protect the player from exposing his cards before playing them; the owner of the racing stable keeps as a valuable secret the time made by his horse in the last private trial before the race; and a chessplayer's skill consists largely in concealing from the opponent the farseeing sequence of moves which he has planned.

It is this feature of games and sports that has influenced powerfully the policy of the common law in the present aspect. "Nemo tenetur armare adversarium contra se." To require the disclosure to an adversary of the evidence that is to be produced would be repugnant to all sportsmanlike instincts. Thus the common law permitted a litigant to reserve his evidential resources (tactics, documents, witnesses) until the final moment, marshalling them at the trial before his surprised and dismayed antagonist.

Such was the spirit of the common law; and such in part it still is. It did not defend or condone trickery and deception; but it did regard the concealment of one's evidential resources and the preservation of the opponent's defenseless ignorance as a fair and irreproachable accompaniment of the game of litigation. There is no accounting for this except as a product of a characteristic instinct of the Anglo-Norman community in which our law took shape.

Coupled with the sporting instinct was the belief that the elaborate rules of pleading in common law courts could reduce a case to one controverted fact which could be submitted to the jury.

Written pleadings formed the traditional basis of...