Tennessee Dept. of Human Services v. Vaughn

• Court: Tennessee Supreme Court
• Writing for the Court: HENRY; FONES; BROCK; BROCK; HARBISON; COOPER; HENRY
• Citation: Tennessee Dept. of Human Services v. Vaughn, 595 S.W.2d 62 (Tenn. 1980)
• Decision Date: 11 February 1980
• Parties: TENNESSEE DEPARTMENT OF HUMAN SERVICES, etc., Plaintiff-Petitioner, v. Major VAUGHN, Defendant-Respondent.

Page 62

595 S.W.2d 62

TENNESSEE DEPARTMENT OF HUMAN SERVICES, etc., Plaintiff-Petitioner, v. Major VAUGHN, Defendant-Respondent.

Supreme Court of Tennessee.

Feb. 11, 1980.

Petition to Rehear Denied March 10, 1980.

Harold W. Horne, Memphis, for plaintiff-petitioner.

J. Michael Fletcher, Memphis, for defendant-respondent.

OPINION

HENRY, Justice.

We granted certiorari in this case to examine the constitutionality of so much of Section 36-227(1), T.C.A., as provides that in a bastardy case an "alleged father shall not be compelled to give evidence." We hold it to be unconstitutional.

I.

Tennessee Department of Human Services, as assignee of Donna Rogers, filed its petition in the Juvenile Court at Memphis seeking a determination that respondent was the father of a child born out of wedlock, with the usual and appropriate award for support and maintenance. Pursuant to Section 36-227(1), T.C.A., the case was transferred to the Circuit Court for jury trial "on the issue of paternity." ¹

After the transfer counsel for the petitioner propounded a series of interrogatories to defendant who refused to respond, taking the position that under Section 36-227(1), T.C.A., he was privileged against being required to "give evidence," by interrogatories or otherwise. The trial judge held against the exemption but granted an interlocutory appeal pursuant to Section 27-305, T.C.A., and certified to the Court of Appeals the following question:

Does "evidence" as used in Tennessee Code Annotated, Section 36-227(1) afford the Defendant in a bastardy proceeding a privilege to refuse to answer interrogatories propounded by the Plaintiff?

While not stated with admirable articulation, the constitutional issue fairly inheres in the certified question. One need not play fast and loose with the English language to respond to a question as to whether a given Code section affords a privilege, by saying that it cannot do so because such would be unconstitutional. Indeed, this is a basic, primary and direct response.

Moreover, Section 27-305, T.C.A., ² should not be construed in such a way as to defeat substantial justice, result in a duplication of appeals, nor to evade a response to an issue of critical public importance which continues to recur but evades review.

The New Rules of Appellate Procedure speak to these considerations. Rule 13(b), which applies to all appeals to this Court, provides that "(r)eview generally will extend only to those issues presented for review." (Emphasis supplied). But, the rule goes farther and makes it mandatory for the Court to consider the question of subject matter jurisdiction, "whether or not presented for review," and authorizes the Court, in its discretion, to consider other issues in order "(1) to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial process."

These three reasons cry out for an adjudication on the constitutional issue in this case. Both pragmatism and principle are involved. We meet and decide the issue.

II.

The Court of Appeals reversed, holding that the defendant in a bastardy case had, and could rely on, the statutory privilege.

We respectfully differ with the Court of Appeals, and, while an extended discussion of the matter is not appropriate, we reject out of hand its conclusion that the "Tennessee Rules of Civil Procedure are not laws." These rules, along with the Rules of Criminal Procedure and the Rules of Appellate Procedure, are "laws" of this state, in full force and effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated by this Court and adopted by the General Assembly. Any other construction would thwart, frustrate and emasculate these modern and progressive rules designed "to secure the just, speedy and inexpensive determination" of civil actions (Rule 1, Tenn.R.Civ.P.), the "just determination of every criminal proceeding" (Rule 2, Tenn.R.Crim.P.) and the "just, speedy and inexpensive determination of every proceeding on its merits" (Rule 1, Tenn.R.App.P.).

It ill behooves any court particularly an appellate court to denigrate this trilogy of Rules galvanized into law by joint judicial and legislative action and marking the methodology of trial and appellate practice under modern and enlightened Tennessee jurisprudence. The Legislature rejected the argument that rules governing trial and appellate procedure could not be adopted pursuant to the statutorily prescribed procedure and so do we. We would suggest that it is a foremost mission of the Bench and Bar of this state to unite in an effort to keep out rules current, to continually seek their improvement and to accord to them the respect that two branches of the government intended that they have.

III.

Section 36-227(1), T.C.A., governs the conduct of the trial both in the juvenile and circuit courts. It provides, in part, that

(b)oth the mother and the alleged father shall be competent to testify but the alleged father shall not be compelled to give evidence. (Emphasis supplied).

We declined in Patrick v. Dickson, 526 S.W.2d 449 (Tenn.1975), to extend the Rules of Civil Procedure "to paternity cases in the juvenile courts," and noted that such cases are "quasi-criminal in character." 526 S.W.2d at 450-51. Subsequently, we held in Wilkerson v. Benson, 542 S.W.2d 811 (Tenn.1976):

It is not made a criminal offense in Tennessee for one to father an illegitimate child. Our bastardy statutes (§§ 36-222, et seq., T.C.A.) are civil in nature and are intended to provide for the support, maintenance, education and funeral expenses of the child, and for the expenses of the mother's confinement and recovery, along with those incurred in connection with her pregnancy. 542 S.W.2d at 813.

The conflict, if any, between these two cases is more apparent than real.

"Quasi-criminal" actions are governed by the rules of pleading relating to civil actions. O'Dell v. City of Knoxville, 214 Tenn. 237, 379 S.W.2d 756 (1964). In Frazier v. McFerren, 55 Tenn.App. 431, 402 S.W.2d 467 (1964), the Court, on an appeal from a juvenile court, held that a bastardy hearing was a civil suit and the preponderance of the evidence standard prevailed.

Under Section 36-227, T.C.A., paternity actions are certified to the circuit court whenever a jury trial is demanded. It may not be transferred to the criminal court. Circuit courts are governed by the Rules of Civil Procedure. These rules apply to bastardy cases transferred from the juvenile court.

We are not asked to determine the scope of the rules relating to interrogatories. Our consideration is limited to the constitutionality of the privilege statutorily afforded to the putative father against being required to "give evidence." This phrase includes testimony in open court, and by deposition or interrogatories.

The practical result of the privilege afforded to the putative father is that, in circuit court, he may depose the mother and demand that she respond, but when she attempts to pursue a similar practice she runs squarely into the stone wall of a statutory exemption. The parties do not deal at arm's length. The one enjoys an advantage, the other suffers a detriment. This different treatment of litigants does not comport with "the law of the land."

Justice and the judicial process both suffer if an unwed mother is frustrated in her effort to obtain a full and fair hearing, with the putative father being exempted from the very rules she must abide. Public interest is heavily involved. This is far more than just a suit between these particular parties involving private rights only. The public policy of the State is involved in any bastardy hearing. Sometimes issues of such overriding importance arise that the courts are under a duty to speak. This is such a case.

We would abide the "grace and discretion" referred to by this Court in Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 658, 315 S.W.2d 245, 249 (1958), for here, as there, "an injustice would be done by enforcing the Rule."

What is the injustice?

It shocks and affronts justice to say, in effect, that in a bastardy hearing an unwed mother may be required to respond to interrogatories or to give a deposition covering her whole conduct but that the other party to the "tango" may seal his lips and silently lurk in the protective shadow of the law.

Article XI, Section 8 of the Constitution of Tennessee withholds from the Legislature the power "to suspend any general law for the benefit of any particular individual" or "to pass any law for the benefit of individuals inconsistent with the general laws of the land" or "to pass any law granting to any individual or individuals, rights, privileges, immunitie, (immunities) or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law."

This section is closely akin to the "law of the land" proviso. It demands that all persons in this case litigants who are similarly situated or circumstanced, be governed by the same rule of law. The law must embrace and affect alike all persons similarly situated and must make no arbitrary or capricious classification.

We regard the exemption provided in favor of men in Section 36-227(1), T.C.A., as being a blatant declaration of male supremacy, male chauvinism at its very worst, and a throwback to the days when laws were made by men and for men. Such laws must perish. We live in a new day.

We adopt the language of the concurring opinion in Robinson v. Trousdale County, 516 S.W.2d 626 (Tenn.1974):

My research indicates that the first decision of the Supreme Court of the United States to invalidate a sex discriminatory law was Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). In that case the Court held that a mandatory provision of the Idaho Probate Code giving preference to men over women in...