Memphis Pub. Co. v. City of Memphis

• Decision Date: 29 July 1974
• Citation: 513 S.W.2d 511
• Parties: The MEMPHIS PUBLISHING COMPANY et al., Appellants, v. CITY OF MEMPHIS et al., Appellees.
• Court: Tennessee Supreme Court

Page 511

513 S.W.2d 511

The MEMPHIS PUBLISHING COMPANY et al., Appellants, v. CITY OF MEMPHIS et al., Appellees.

Supreme Court of Tennessee.

July 29, 1974.

Rehearing Denied Aug. 30, 1974.

Milton P. Rice, Atty. Gen., W. Henry Haile, Asst. Atty. Gen., Nashville, Armistead F. Clay, Memphis, for appellants.

Richard L. Hollow, Knoxville, amicus curiae.

Frierson M. Graves, Jr., E. Brady Bartusch, Myron A. Halle, Jr., Memphis, William F. Howard, Charles E. Griffith, III, Nashville, Tenn., Melvin Fleischer, C. Cleveland Drennon, Jr., Memphis, for appellees.

OPINION

CHATTIN, Justice.

For convenience the parties will be referred to as they were in the court below: that is, the appellants as the defendants; and the appellees as the complainants.

Following the trend established by other states, the legislature enacted Chapter 442, Public Acts of 1974. The stated purpose of the Act is:

'The General Assembly hereby declares it to be the policy of this State that the formation of public policy and decisions is public business and shall not be conducted in secret.'

On April 19, 1974, complainants brought a declaratory judgment suit in the Chancery Court of Shelby County seeking to have the Act declared unconstitutional. Finding the notice provision of the Act so vague and ambiguous that men of reasonable minds would have to guess at its meaning, the Chancellor declared that part of the Act unconstitutional.

Defendants have perfected an appeal, pursuant to T.C.A. Section 27--306, directly to this Court. Complainants did not appeal or file an assignment of error in this Court.

Defendants insist there are two reasons why this Court cannot consider the merits of the case. First, they argue complainants failed to prove their authority to bring the suit as required by Rule 9 of the Tennessee Rules of Civil Procedure. Second, they assert this is not a proper case for a declaratory judgment.

The parties filed a one-paragraph stipulation of facts in lieu of a bill of exceptions. No reference is made in the stipulation as to the parties' authority to bring this suit. Consequently, in the absence of proof we must assume the Chancellor acted correctly by allowing complainants to proceed with the suit.

Since this case presents a real, rather than a theoretical, question; and the parties have a real interest in the litigation, this is a proper case for a declaratory judgment action. Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949); Miller v. Miller, 149 Tenn. 463, 261 S.W. 965 (1923).

'The only controversy necessary to invoke the action of the court and have it to declare rights under our declaratory judgment statute is that the question must be real, and not theoretical; the person raising it must have a real interest, and there must be some one having a real interest in the question who may oppose the declaration sought. It is not necessary that any breech should be first committed, any right invaded, or wrong done.' Miller v. Miller, supra; Williams v. American Plan Co., 216 Tenn. 435, 392 S.W.2d 920 (1965).

The pleadings show the above conditions are present in this controversy.

With respect to whether the notice provision of Chapter 442 is unconstitutionally vague and ambiguous, Section 3(a) of Chapter 442 provides:

'Any such governmental body which holds a meeting previously scheduled by statute, ordinance, or resolution, shall give adequate public notice of such meeting.

'Section 3(b) provides:

'Any such governmental body which holds a meeting not previously scheduled by statute, ordinance, or resolution, or for which notice is not already provided by law, shall give adequate public notice of such meeting.

'Section 3(c) provides:

'The notice requirements of this Act are in addition, and not in substitution of any other notice required by law.'

Defendants concede that some uncertainty is created by the use of a phrase so broad in scope as 'adequate public notice.' However, they insist that such usage is necessary because the phrase is designed to apply to a variety of situations. Further, defendants insist that those who desire to obey the statute will have no difficulty in understanding it. State v. Netto, Tenn., 486 S.W.2d 725 (1972).

Complainants insist, in the language of the Chancellor, the Section is unconstitutionally vague because:

'There is no way to construe that term except to say that it means adequate public notice under the circumstances, and that would mean different things to different people of common intelligence.'

We think it is impossible to formulate a general rule in regard to what the phrase 'adequate public notice' means. However, we agree with the Chancellor that adequate public notice means adequate public notice under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public. In the abstract this is a vague concept. But when applied in a real situation or a given set of facts and circumstances, we doubt that such a variation of opinion would exist as to promote confusion. If we were dealing with a penal statute the Act might require more specificity to be constitutional. But since we are required to resolve any doubts in favor of, rather than against, the...