Mayhew et al v Wilder et al

• Decision Date: 11 January 2001
• Docket Number: 00-01948
• Parties: MARK A. MAYHEW, et al. v. HON. JOHN WILDER, et al
• Court: Tennessee Court of Appeals

MARK A. MAYHEW, et al. v HON. JOHN WILDER, et al.

No. M2000-01948-COA-R10-CV

October 11, 2000 Session

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Filed January 11, 2001

Appeal from the Circuit Court for Davidson County, No. 00C1833

Hamilton V. Gayden, Jr., Judge

A citizen of the state, later joined by three Nashville newspapers, filed this action alleging that Tennessee's fiscal year 2000-2001 budget and revenue bills are void because they resulted from secret meetings in both houses of the General Assembly. The Tennessee Press Association, the Middle Tennessee Chapter of the Society of Professional Journalists, the Tennessee Associated Press Managing Editors and thirteen newspapers were allowed to intervene to challenge the General Assembly's right to meet in closed sessions, but they did not seek to have the budget and revenue bills declared void. The complaint and amended complaints sought declaratory and injunctive relief against various state officials, alleging that any secret meeting of the General Assembly violates the Tennessee Constitution, the United States Constitution, and the State Open Meetings Act. The defendants moved to dismiss, raising the defenses of standing, soverign immunity, separation of powers, and failure to state a claim. The Circuit Court of Davidson County overruled the motion to dismiss, and we granted the defendant's application for an extraordinary appeal under Rule 10, Tenn. R. App. Proc. We find that the Open Meetings Act does not apply to the General Assembly, that the plaintiffs have not stated a claim under either the Tennessee or United States Constitutions, and that the question of when to close legislative meetings is non-justiciable because our Constitution commits that question exclusively to the General Assembly. We, therefore, reverse the lower court's order and dismiss the complaint.

Tenn. R. App. P. 10 Appeal by Permission; Judgment of the Circuit Court

Reversed and Dismissed

Ben H. Cantrell, P.J., M.S., delivered the opinion of the court, in which William B. Cain, JJ., joined. William C. Koch, Jr., J., concurring.

Paul G. Summers, Attorney General and Reporter, Andy D. Bennett, Chief Deputy Attorney General, Michael E. Moore, Solicitor General, Michael W. Catalano, Associate Solicitor General, Ann Louise Vix, Senior Counsel, for the appellants, Hon. John Wilder, Jimmy Naifeh, Paul Summers, Steve Adams, John Morgan and the Tennessee General Assembly, individually and as a body in their official capacity as members of the Senate and the House of Representatives.

George E. Barrett, Douglas S. Johnston, Edmund L. Carey, Jr., James G. Stranch, III, and C. Dewey Branstetter, Jr.,Nashville, Tennessee, for the appellees, Mark A. Mayhew, individually, and on behalf of all the citizens of the State of Tennessee, the Nashville Scene, NashvillePost.com, and Lyle Media, Inc., d/b/a In Review.

Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, for the appellees, The Tennessean, The Jackson Sun, The Knoxville News-Sentinel, Chattanooga Times/Chattanooga Free Press, the Daily News Journal (Rutherford County), the Greenville Sun, the Newport Plain Talk, the Daily Post-Athenian, Rogersville Review, the News-Herald (Louden County), the Herald-News (Rhea County), Monroe County Advocate, the Society of Professional Journalists, Middle Tennessee Chapter and Tennessee Associated Press Managing Editors.

Lucian T. Pera, Memphis, Tennessee, for the appellee, Memphis Publishing Company, d/b/a The Commercial Appeal.

Richard L. Hollow and Nathan D. Rowell, Knoxville, Tennessee, for the appellee, Tennessee Press Association.

Rob Briley, Nashville, Tennessee, Amicus Curiae, Pro Se.

Susan L. Kay, Nashville, Tennessee, for Amicus Curiae Tennessee Chapter, American Civil Liberties Union.

OPINION

I.

After a contentious and protracted legislative session, the Tennessee General Assembly finally passed a budget for fiscal year 2000-2001, HB 2790/SB 2977, and a revenue bill to fund it, HB 3364/SB 3351. On June 30, 2000, one day before the bills were to take effect, an individual citizen sued the Speaker of the House of Representatives, the Speaker of the Senate, and all the other members of the General Assembly alleging that in deliberating the budget and revenue bills toward passage, both legislative houses, and separate and joint committees thereof, repeatedly held sessions that were closed to the public and to the press. The complaint alleged that such secret meetings violated Article II, Section 22 of the Tennessee Constitution, Tenn. Code Ann. § 8- 44-101, et seq., and the due process provisions of the Fourteenth Amendment to the United States Constitution.

The plaintiff sought (1) a declaration that the budget and revenue bills are void and of no effect, (2) an injunction prohibiting the General Assembly from further violations of the Open Meetings Act, and (3) an imposition of the supplementary remedies provided by statute for a violation of the Open Meetings Act.

On July 10, 2000, the plaintiff filed an amended complaint adding the Nashville Scene, a weekly newspaper, as a plaintiff and the Attorney General, Comptroller, and Treasurer as defendants. The next day, the plaintiffs filed a motion for leave to file a second amended complaint adding as plaintiffs two other newspapers, the Nashville Post.com and Lyle Media, Inc., d/b/a In Review. Additionally, the motion asked the court to realign Representative Rob Briley as a plaintiff for the limited purpose of obtaining a declaration of the court as to whether the Open Meetings Act applied to the Legislature. The second amended complaint also asserted that the General Assembly's secret meetings violated Article I, Section 19 of the Tennessee Constitution and the First Amendment to the United States Constitution.

The trial court granted the plaintiffs' motion to file the second amended complaint and to dismiss Representative Briley as a defendant and to add him to the list of plaintiffs. Subsequently, the court, sua sponte, held that Representative Briley could not be a party to the action but could remain in the case in his official capacity as an amicus. The Tennessee Press Association, the Middle Tennessee Chapter of the Society of Professional Journalists, the Tennessee Associated Press Managing Editors and a group of thirteen newspapers intervened as plaintiffs, but they did not seek to have the budget and revenue bills declared void.

On July 24, 2000, the defendants filed a motion to dismiss on the following grounds:

(1) that the plaintiffs lacked standing to bring the lawsuit under the Open Meetings Act or either the Tennessee or United States Constitution;

(2) that the plaintiffs' claims under the Open Meetings Act, Article II, Section 22, and Article I, Section 19 of the Tennessee Constitution are non-justiciable;

(3) that the remedies sought are not available for violations of the Open Meetings Act or the Tennessee Constitution;

(4) that the complaints did not state a claim under the First and Fourteenth Amendments to the United States Constitution;

(5) that the claims for injunctive relief were barred by legislative immunity;

(6) that the complaints did not allege that house and senate journals showed that the budget and revenue acts were passed in violation of the constitutional requirements.

On August 10, 2000, the court overruled the motion to dismiss and notified the parties that the court was contemplating appointing a constitutional law expert to advise the court about the remedies available if the court found a violation of either the Open Meetings Act or of the state or federal constitutions.

We granted the State's Rule 10, Tenn. R. App. P., application for permission to appeal.

II.

This court is not often asked to decide questions about the fundamental structure of our state government. Inevitably, however, the constitutional provisions regarding the separation of powers and the constitutional and common law immunities of various public officials require the courts to locate the boundaries of executive, legislative, and judicial power. Thus, the fundamental questions we must answer are (1) under what circumstances the General Assembly, legislative committees and subcommittees, and other groups of legislators may meet in secret, and (2) what part the courts play in reviewing the decision to hold secret sessions.

III.

Standing

First we must address the issue of standing, a judge-made doctrine based on the idea that "[a] court may and properly should refuse to entertain an action at the instance of one whose rights have not been invaded or infringed." 59 Am. Jur. 2d Parties § 30 (1987). In state law it parallels the constitutional restriction on federal court jurisdiction to "cases and controversies." U.S. Const. art. 3, § 2. It has been said that no case or controversy is presented where the plaintiff lacks standing to sue. Gilligan v. Morgan, 413 U.S. 1 (1973); see also O'Shea v. Littleton, 414 U.S. 488 (1974). "In determining whether the plaintiff has a personal stake sufficient to confer standing, the focus should be on whether the complaining party has alleged an injury in fact, economic or otherwise, which distinguishes that party, in relation to the alleged violations, from the undifferentiated mass of the public." 32 Am. Jur. 2d Federal Courts § 676 (1995).

In Tennessee, the standing doctrine requires that the person challenging the constitutionality of a statute "must show that he personally has sustained or is in immediate danger of sustaining, some direct injury . . . and not merely that he suffers in some indefinite way in common with people generally." Parks v. Alexander, 608 S.W.2d 881, 885 (Tenn. Ct. App. 1980). The mere status as a taxpayer or voter is not enough. Id. The plaintiff must allege that the effect of the statute will impose burdens on him "not common to the body of the citizens." Patton v. Chattanooga, 65 S.W. 414 (Tenn. 1901); Bennett v....