Person v. The Board of Commissioners of Shelby County, No. W2007-01346-COA-R3-CV (Tenn. App. 9/28/2009)
| Decision Date | 28 September 2009 |
| Docket Number | No. W2007-01346-COA-R3-CV.,W2007-01346-COA-R3-CV. |
| Parties | CURTIS S. PERSON v. THE BOARD OF COMMISSIONERS OF SHELBY COUNTY, TENNESSEE, ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Shelby County; No. CH-06-2237-3; Kenny W. Armstrong, Chancellor.
Judgment of the Chancery Court Reversed in Part and Affirmed in Part.
Lucian T. Pera, Brian S. Faughnan, Memphis, Tennessee, for the appellant, Curtis S. Person.
Leo Bearman, Jr., Emily Turner Landry, Memphis, Tennessee, for the appellees, The Board of Commissioners of Shelby County, Tennessee, et al., and A. C. Wharton, Jr., Mayor of Shelby County, Tennessee.
Patricia J. Cottrell, P.J., M.S., delivered the opinion of the court, in which Frank G. Clement, Jr. and Richard H. Dinkins, JJ., joined.
In 1967, the General Assembly passed a Private Act consolidating the juvenile courts of Memphis and Shelby County by establishing a new court. The Act also provided for a second division, with the judgeship of that division to remain vacant until the County Commission determined the need for it. Almost forty years later, the Commission adopted a resolution approving the appointment of a judge to the second division of the court. The current judge of the Juvenile Court of Davidson County challenged the attempted creation of a second judgeship, arguing that the relevant portion of the Private Act constituted an unconstitutional delegation of the authority to ordain and establish courts, which power is reserved to the General Assembly by the Tennessee Constitution. Because a judge is a necessary component of a court, in order to "ordain and establish" a court under Art. VI, § 1, the legislation creating or establishing the court must make provision for a judge. The legislature cannot establish a court without also establishing a judgeship. Since Section 20 of the Private Act does not create or establish a judgeship for division 2, it did not effectively create or establish that division or court. Additionally, because in Section 20 of the Private Act the legislature delegated to the Commission the power to decide whether a judge for division 2 was needed, which is the equivalent of delegating to the Commission the authority to establish or create division 2 of the juvenile court, we conclude that Section 20 is an unconstitutional delegation of power reserved to the General Assembly by Art. VI, § 1 of the Tennessee Constitution and, therefore, reverse the trial court's holding on that issue. We affirm the trial court's ruling on Open Meeting Act claims based on a prior resolution that was promptly rescinded by the Commission.
Juvenile Court Judge Curtis Person filed suit against the Mayor of Shelby County ("Mayor") and the Shelby County Board of Commissioners ("Commission") challenging a resolution passed by the Commission that resulted in a second juvenile court division. According to Judge Person, the private act relied upon by the Board and the resulting resolution were unconstitutional under Art. VI, § 1 of the Tennessee Constitution. In addition, Judge Person alleged that the resolution passed by the Commission violated the Open Meetings Act, Tenn. Code Ann. § 8-44-101 et seq.
The following facts are not in dispute. In 1967, the General Assembly passed Chapter 219 of the Private Acts of 1967 ("Private Act") which purported to accomplish two objectives relevant to this case. First, the Private Act established the Juvenile Court of Memphis and Shelby County in Section 1, which provides in pertinent part as follows:
Be it enacted by the General Assembly of the State of Tennessee, That there is hereby created and established in and for the City of Memphis and County of Shelby, Tennessee, a Court with the title and style of Juvenile Court of Memphis and Shelby County, Tennessee. Such Court shall be a Court of Record, presided over by a judge who shall have the qualifications hereinafter provided, and whose salary shall be provided and paid as hereinafter provided. Such Judge shall be known and have the title of Judge of the Juvenile Court of Memphis and Shelby County and shall devote his full time to the duties of such office of Judge, and shall have no other professional activity;
The Private Act provided in Section 6 that the judge who was then judge of the Memphis Municipal Juvenile Court would become the judge of the Juvenile Court of Memphis and Shelby County until a successor was selected. This is the position currently held by Judge Person.
The Private Act also addressed a second division of the court in Section 20,1 which provides as follows:
Be it further enacted, That there is hereby created a Second Division of the Court. The Judge of said Division shall be subject to all of the provisions of this Act in the same manner as is the Judge provided for in this Act. The Judgeship of said Second Division shall remain vacant until the Quarterly County Court of Shelby County shall determine the need therefore (sic) and by resolution set a date for the election or appointment of said Judge. The Judge of the Second Division shall be learned in the law and licensed to practice law in this State. (emphasis added).
Since enactment of the Private Act in 1967, the second division has not come into existence. The Juvenile Court of Memphis and Shelby County has operated for over 40 years with a single division and a single judge.
On November 6, 2006, the Commission passed a resolution to recognize the need for and to approve the second division ("November Resolution") referenced in Section 20 of the Private Act.2 Ten days later, Judge Person filed suit, claiming that the Commission violated the Open Meetings Act in the enactment of the November Resolution and seeking a declaratory judgment under Tenn. Code Ann. § 29-14-102 et seq. that Section 20 of the Private Act was unconstitutional. Upon filing of the complaint, Judge Person received permission from the trial court to conduct expedited discovery to determine whether the Commission had violated the Open Meetings Act. Shortly thereafter, the Commission unanimously rescinded the November Resolution on November 20, 2006.
After the Commission rescinded the November Resolution, the trial court granted defendants' motion to quash the expedited discovery, finding that the Open Meetings Act allegations were moot. There was no judicial determination as to whether the Open Meetings Act had been violated.3 The lawsuit was not, however, dismissed pending resolution of the claim that Section 20 of the Private Act was unconstitutional.
On February 5, 2007, the Commission passed a revised second resolution recognizing the need for and approving a second division under Chapter 20 of the Private Act ("February Resolution"). According to the February Resolution, the Private Act had created two divisions but only one judgeship. The resolution went on to state that the Private Act authorized the second division judgeship to be filled by the Commission when the Commission deemed it was needed. Consequently, the February Resolution4 provided as follows:
That the need to implement and appoint a judge to the already created and established Second Division of Juvenile Court of Memphis and Shelby County, Tennessee be and the same is hereby approved.
Judge Person then renewed his request for a temporary injunction to prevent appointment of a judge to the second division pursuant to the February Resolution based upon the unconstitutionality of Chapter 20. There is no allegation that the Commission violated the Open Meetings Act when it passed the February Resolution.5 In February of 2007, the trial court granted Judge Person's temporary injunction request preventing the Commission from filling the judgeship in division two pending a decision on the merits.
The trial court subsequently found in a May 18, 2007 Memorandum Opinion that Section 20 of the Private Act was constitutional and lifted the temporary injunction. The trial court found that the legislature "clearly enacted and created" the second division in Section 20. The question, according to the trial court, was whether it was constitutionally permissible for the legislature to delegate to the Commission the power to decide when to fill the judicial position. The trial court relied on Tennessee cases on the delegation of legislative authority and found that delegation was permissible so long as there was not delegation of authority to adopt or not adopt a law or authority to create or not create a court. Finding that the legislature may delegate to the Commission the decision when to fill the judgeship position, the trial court concluded that Section 20 was constitutional. The trial court granted a stay of its judgment pending appeal, thus preventing the Commission from appointing a judge for division two.
Judge Person then filed this appeal on two grounds.6 First, Judge Person argues that the trial court erred when it found Section 20 of the Private Act to be constitutional under the Tennessee Constitution. Second, Judge Person appealed the trial court's order which quashed Judge Person's discovery request upon the determination that the Open Meetings Act claim had been mooted by the Commission's decision to rescind the November Resolution. According to Judge Person, the trial court should have allowed discovery to proceed in order to determine whether the Open Meetings Act had been violated and what remedies would be appropriate.
Judge Person asked the Tennessee Supreme Court to assert jurisdiction over this appeal under Tenn. Code Ann. § 16-3-201, and that request was denied.
A trial court's rulings on questions of constitutional law are reviewed de novo by an appellate court. Bredesen v. Tennessee Judicial Selection Comm., 214 S.W.3d 419, 424 (Tenn. 2007).
We must begin with the presumption that legislative acts are constitutional. State v....
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