Metro. Gov't v. Tenn. Dep't of Educ.

• Decision Date: 29 September 2020
• Docket Number: No. M2020-00683-COA-R9-CV,M2020-00683-COA-R9-CV
• Parties: METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY ET AL. v. TENNESSEE DEPARTMENT OF EDUCATION ET AL.
• Court: Tennessee Court of Appeals

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY ET AL. v. TENNESSEE DEPARTMENT OF EDUCATION ET AL.

No. M2020-00683-COA-R9-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

August 5, 2020 Session

September 29, 2020

Appeal from the Chancery Court for Davidson County

No. 20-0143-II

Anne C. Martin, Chancellor

Davidson and Shelby counties sued the State of Tennessee to challenge the constitutionality of the Tennessee Education Savings Account Pilot Program. The trial court found that both counties had standing and that the act was unconstitutional under paragraph 2 of article XI, section 9 of the Tennessee Constitution. The State and intervening defendants appealed. We affirm.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Chancery Court Affirmed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor General, Stephanie A. Bergmeyer, Senior Assistant Attorney General, James Robert Newsom, Assistant Attorney General, E. Ashley Carter, Assistant Attorney General, Matthew Reed Dowty, Assistant Attorney General, and Shanell Lanette Tyler, Assistant Attorney General, for the appellants, Tennessee Department of Education, Commissioner of the Tennessee Department of Education, and Governor of the State of Tennessee.

Jason Irving Coleman, Brentwood, Tennessee, Braden H. Boucek, Nashville, Tennessee, Arif Panju, Austin, Texas, David G. Hodges, Arlington, Virginia, and Timothy Keller, Tempe, Arizona, for the appellants, Natu Bah, Builiguissa Diallo, Star Brumfield, and Bria Davis.

Brian Kirk Kelsey and Daniel R. Suhr, Chicago, Illinois, for the appellants, Greater Praise Christian Academy, Sensational Enlightenment Academy Independent School, Ciera Calhoun, Alexandria Medlin, and David Wilson, Sr. Allison L. Bussell, Melissa S. Roberge, and Robert E. Cooper, Jr., Nashville, Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson County, and Metropolitan Nashville Board of Public Education.

Emmett Lee Whitwell and Marlinee C. Iverson, Memphis, Tennessee, for the appellee, Shelby County Government.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

In 2019, the Tennessee General Assembly enacted the Tennessee Education Savings Account Pilot Program (the "ESA Act" or "the Act"). 2019 TENN. PUB. ACTS, ch. 506 (codified as Tenn. Code Ann. § 49-6-2601-2612). The ESA Act created a system to allow eligible students, in numbers rising over time from 5,000 to 15,000, to receive their share of state and local funds that would normally be sent to the school system they attend. Tenn. Code Ann. §§ 49-6-2604(c), -2605(c). An eligible student would use these funds to attend a private school. See Tenn. Code Ann. § 49-6-2602(9) (defining a "participating school" as "a private school" meeting certain requirements). The Act, based on the criteria for the eligible student, applies only to local education agencies ("LEAs") in Davidson and Shelby counties and the Achievement School District (ASD). Tenn. Code Ann. § 49-6-2602(3)(C).

The Metropolitan Government of Nashville and Davidson County ("Metro"), the Shelby County Government ("Shelby County"), and the Metropolitan Nashville Board of Public Education ("Metro School Board") sued Governor Bill Lee, Tennessee Department of Education Commissioner Penny Schwinn, and the Tennessee Department of Education (collectively "the State defendants" or "the State"). The plaintiffs maintained that the ESA Act violated several provisions of the Tennessee Constitution. The trial court allowed intervenors to participate as defendants: parents of public school children in Davidson and Shelby counties (the Davis and Bah intervenors respectively); and two independent schools wishing to accept eligible students, Greater Praise Christian Academy and Sensational Enlightenment Academy Independent School, plus additional parents who wish to take advantage of the ESA Act (collectively, the "Greater Praise intervenors").

The trial court expedited this matter because the State defendants intended to implement the ESA Act for the 2020-2021 school year. The State had begun accepting student applications and the private schools were making decisions about expansion and enrollment. The Greater Praise intervenors filed a motion to dismiss maintaining that the Metro School Board did not have standing to pursue this action and that all of the constitutional issues raised by the plaintiffs were without merit. The State defendants filed a motion to dismiss arguing that none of the plaintiffs had standing, two of the constitutional claims were not ripe for judicial decision, and the ESA Act did not violate the Tennessee Constitution. The plaintiffs filed a motion for summary judgment, claimingthat the ESA Act violated article XI, section 9 of the Tennessee Constitution. The State defendants filed a motion to consolidate this case with the similar case of McEwen v. Governor Lee, No. 20-0242-II. The Davis and Bah intervenors filed a motion for judgment on the pleadings on the grounds that the plaintiffs' complaint failed to state a claim upon which relief could be granted.

The trial court held a hearing on April 29, 2020, on the plethora of motions and issued its opinion on May 4, 2020. The learned chancellor dismissed the Metro School Board as a plaintiff for lack of standing, granted the plaintiffs' motion for summary judgment as to article XI, section 9 of the Tennessee Constitution, declared the ESA Act unconstitutional, and enjoined the State defendants from implementing the Act. The trial court deferred ruling on the other motions and, sua sponte, granted the parties the right to seek an interlocutory appeal to the Court of Appeals. On May 13, 2020, the trial court denied the defendants' joint motion for a stay pending appeal.

The State defendants and the Greater Praise and Bah intervenors filed Tenn. R. App. P. 9 applications for permission to appeal from the trial court's order. The State defendants and the Bah intervenors also moved this court for a stay pending appeal. By order of May 19, 2020, this court granted the applications for an appeal, specifying the two issues for appeal as follows:

1) Whether the trial court erred in ruling that the county government plaintiffs have standing to challenge the constitutionality of the ESA Program under the Home Rule Amendment.

2) Whether the trial court erred in ruling that the ESA Program violates the Home Rule Amendment, article XI, section 9 of the Tennessee Constitution.

This court expedited the appeal and declined to review the trial court's order denying a stay pending appeal. On June 4, 2020, the Tennessee Supreme Court declined to assume jurisdiction of the case or to review the denial of a stay.

Since the time the appeal was granted, this court has permitted a number of amici: the McEwen plaintiffs; Catholic Schools in Shelby and Davidson Counties; EdChoice Inc. and Foundation for Excellence in Education, Inc.; and the Tennessee Education Association, Metropolitan Nashville Education Association, and United Education Association of Shelby County.

STANDARD OF REVIEW

Standing

A Tenn. R. Civ. P. 12.02(6) motion to dismiss challenges the legal sufficiency of the complaint. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). We must accept "the allegations of fact as true. However, inferences to be drawn from the facts or legal conclusions set forth in the complaint are not required to be taken as true." Nat'l Gas Distribs. v. Sevier Cnty. Util. Dist., 7 S.W.3d 41, 43 (Tenn. Ct. App. 1999) (citing Riggs v. Burson, 941 S.W.2d 47-48 (Tenn. 1997)). The facts alleged in the complaint in this case regarding standing are mainly based on statutes. The interpretation of statutes is a question of law which we review de novo with no presumption of correctness. Wallace v. Metro. Gov't of Nashville, 546 S.W.3d 47, 52 (Tenn. 2018). Standing is also a question of law reviewed de novo with no presumption of correctness. See Cox v. Shell Oil Co., 196 S.W.3d 747, 758 (Tenn. Ct. App. 2005).

Tennessee Constitution, Article XI, Section 9

Summary judgment is the preferred method "for disposing of purely legal issues." Hawkins v. Case Mgmt. Inc., 165 S.W.3d 296, 299 (Tenn. Ct. App. 2004). The interpretation of a constitutional provision is a question of law which we review de novo with no presumption of correctness. Barrett v. Tenn. Occupational Safety & Health Review Comm'n, 284 S.W.3d 784, 786 (Tenn. 2009).

ANALYSIS

I. County Standing to Challenge the ESA Act

Standing is a judge-made doctrine used to determine whether a party is entitled to have a case decided on the merits. Am. Civil Liberties Union v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006). There are three elements to standing: "a distinct and palpable injury, . . . a causal connection between the claimed injury and the challenged conduct, . . . [and] a showing that the alleged injury is capable of being redressed by a favorable decision of the court." Id. at 620. The main focus of the arguments against standing in this case is on the injury requirement. The defendants and their supporting intervenors put forth several arguments involving the separateness of the LEAs from the county government.

The first argument is that the ESA Act addresses LEAs, not counties. Pursuant to Tenn. Code Ann. § 49-6-2602(7), the ESA Act uses the definition of LEA found in Tenn. Code Ann. § 49-1-103(2): "any county school system, city school system, special school district, unified school system, metropolitan school system or any other local public school system or school district created or authorized by the general assembly." Thus, LEAs include metropolitan and county school systems. Citing Rollins v. Wilson Cnty. Gov't, 154F.3d 626 (6th Cir. 1998), the defendants and intervenors argue that school systems are separate from county governments. Rollins, however is a...