Bee Deselm v. Tennessee Peace Officers Standards and Training Commission ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 26, 2010 Session
BEE DESELM, CARL SEIDER, JAMES GRAY, DONNA BRIAN,
MIKE WHALEN, SUSAN JERKINS, GERALD BONE,
RICHARD HELD, ALBERT AKERMAN, MARGO AKERMAN,
ROBERT CUNNINGHAM, AND MILLIE CUNNINGHAM
v.
TENNESSEE PEACE OFFICERS STANDARDS AND TRAINING
COMMISSION AND TIMOTHY HUTCHISON
An Appeal from the Chancery Court for Davidson County
No. 07-2227-II (III) Ellen Hobbs Lyle, Chancellor
__________________________________
No. M2009-01525-COA-R3-CV - Filed October 8, 2010
This is an appeal of a lawsuit by Knox County citizens to have a former county sheriff
decertified as a peace officer. The plaintiffs’ first lawsuit was dismissed for failure to
exhaust administrative remedies. The plaintiffs then pursued administrative remedies but
were denied administrative relief based in part on an administrative finding that they did not
have standing to seek the relief requested. After that, the plaintiffs filed this lawsuit, seeking
judicial review of the denial of their request for administrative relief. The trial court held that
the plaintiffs did not have standing to sue for declaratory relief, but did have standing under
Tennessee Code Annotated § 4-5-322 to obtain judicial review of the administrative decision
not to investigate the decertification of the former sheriff. Subsequently, the trial court
entered a judgment in favor of the plaintiffs on this claim, remanding the case to the
administrative body with instructions to hold a contested case hearing on the decertification
of the former sheriff. The plaintiffs and the administrative body both appeal. We affirm in
part and reverse in part, concluding that the plaintiffs do not have standing to pursue any of
the relief they seek, and dismiss the case.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is
Affirmed in Part and Reversed in Part
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
and William R. Lundy, Jr., Assistant Attorney General, for the appellant, Tennessee Peace
Officers Standards and Training Commission
Herbert S. Moncier, Knoxville, Tennessee, for the appellees, Bee DeSelm, Carl Seider, James
Gray, Donna Brian, Mike Whalen, Susan Jerkins, Gerald Bone, Richard Held, Albert
Akerman, Margo Akerman, Robert Cunningham, and Millie Cunningham
OPINION
F ACTS AND P ROCEEDINGS B ELOW
In 2002, the then-Sheriff of Knox County, Defendant Timothy Hutchison “(Hutchison”), was
involved in litigation with a County Commissioner in Knox County. In response to
Tennessee Public Records Act requests, Sheriff Hutchison submitted statements later found
by the court to be willfully false.1 That act spawned an onslaught of public controversy and
a tangled web of administrative and legal proceedings. This is the latest in the ensuing
labyrinth of litigation.
The Parties
The Defendant/Appellant Tennessee Peace Officers Standards and Training Commission
(“POST Commission” or “the Commission”) is an administrative body established by
Tennessee’s legislature. See T.C.A. § 38-8-101, et seq. (2006 & Supp. 2009). As its name
implies, the POST Commission’s responsibilities are related to the training and qualifications
of law enforcement officers in Tennessee. See T.C.A. § 38-8-104. By statute, the
Commission’s members include two state sheriffs, police officers, citizens who are not police
officers, one member from the Tennessee Senate, one member from the Tennessee House
of Representatives, and the Tennessee Attorney General & Reporter. T.C.A. § 38-8-102.
The powers and duties of the POST Commission are set out by statute and in the rules
promulgated by the Commission, as authorized in the statutes. See T.C.A. § 38-8-104; see
also POST Commission Rules and Regulations (Tennessee Compiled Rules & Regulations
1110-01-.01, et seq.). The statutes provide that the POST Commission “is charged with the
duty of observing, administering, and enforcing all of the provisions of [the] chapter” relating
to the employment and training of police officers. The statutes grant the Commission the
authority “to adopt and enforce such rules and regulations as may be necessary to carry out
1
The discovery requests and Public Records Act requests sought documents and information about horses
and horse facilities allegedly acquired by the Knox County Sheriff’s Department and related financial
matters.
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the provisions of [the] chapter.” T.C.A. § 38-8-104(a)-(c). Under the statutes and the
regulations, the POST Commission has the power to deny, suspend, or revoke the
certification of law enforcement officers who do not meet the established standards. See
Tenn. Op. Att’y Gen. No. 00-191, 2000 WL 33115961 (Tenn. A.G. 2000).
The twelve Plaintiffs/Appellees (“Plaintiffs”) are “members of a partnership of publicly
spirited citizens.” The Plaintiffs’ partnership was formed for the express purpose of
addressing “alleged misdeeds or threatened wrongs by the government of Knox County and
its officers.” State ex rel. DeSelm v. Owings, No. E2008-02326-COA-R3-CV, 2009 WL
1470704, at *2 (Tenn. Ct. App. May 27, 2009); see also State ex rel. DeSelm v. Knox
County Comm’n, No. E2008-02627-COA-R3-CV, 2010 WL 2978163, at *1, *5 (July 30,
2010).
The wrong sought to be addressed by the Plaintiffs in this case relates to the peace officer
certification of former Sheriff Hutchison. Hutchison served as Knox County Sheriff from
1990 until the implementation of term limits in Knox County, in 2007, forced him to leave
that position. The Plaintiffs seek to have the POST Commission revoke Hutchison’s peace
officer certification, or “de-certify” him. This appeal arises out of the POST Commission’s
refusal to grant the Plaintiffs’ requests.
Requirements for Peace Officer Certification
To understand the Plaintiffs’ request of the POST Commission, some background on peace
officer certification is necessary. The minimum requirements for police officers are set out
in Tennessee Code Annotated § 38-8-106:
Any person employed as a full-time police officer, and any person employed
or utilized as a part-time, temporary, reserve or auxiliary police officer or as
a special deputy, shall:
(1) Be at least eighteen (18) years of age;
(2) Be a citizen of the United States;
(3) Be a high school graduate or possess its equivalent, which shall include a
general educational development (GED) certificate;
(4) Not have been convicted of or pleaded guilty to or entered a plea of nolo
contendere to any felony charge or to any violation of any federal or state laws
or city ordinances relating to force, violence, theft, dishonesty, gambling,
liquor or controlled substances;
(5) Not have been released or discharged under any other than honorable
discharge from any of the armed forces of the United States;
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(6) Have the person’s fingerprints on file with the Tennessee bureau of
investigation;
(7) Have passed a physical examination by a licensed physician or a nurse
practitioner or physician assistant, so long as the task is expressly included in
the written protocol developed jointly by the supervising physician and the
nurse practitioner or physician assistant, whichever is applicable, setting forth
the range of services that may be performed by the nurse practitioner or
physician assistant;
(8) Have a good moral character as determined by a thorough investigation
conducted by the employing agency; and
(9) Be free of all apparent mental disorders as described in the Diagnostic and
Statistical Manual of Mental Disorders, Third Edition (DSM-III) of the
American Psychiatric Association. An applicant must be certified as meeting
these criteria by a qualified professional in the psychiatric or psychological
field.
T.C.A. § 38-8-106 (emphasis added).2 Thus, the absence of any conviction for violation of
a federal or state law related to dishonesty is an affirmative requirement under the statute for
employment as a police officer. For continued employment as a police officer, these
minimum requirements must be maintained. Section 38-8-105 classifies the act of appointing
or paying a person who fails to meet the minimum standards set out in Section 38-8-106 as
a Class A misdemeanor:
(a) Requirements for minimum standards as set forth in this part or as required
by the commission shall be mandatory and binding upon any municipality,
county or political subdivision of this state.
(b) Any person who appoints any applicant, who, to the knowledge of the
appointor, fails to meet the minimum standards as set forth in this part or
required by the commission, and any person who signs the warrant or check
for the payment of the salary of any person who, to the knowledge of the
signer, fails to meet the qualifications as a police officer as provided in this
part or required by the commission, commits a Class A misdemeanor, and
upon conviction shall be subject to a fine not exceeding one thousand dollars
($1,000).
T.C.A. § 38-8-105(a), (b).
2
It is undisputed that these requirements apply to the positions of sheriff and deputy sheriff. See T.C.A. §
8-8-102(9)(A) (2002 & Supp. 2009).
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Consistent with Section 38-8-106, POST Commission Rule 1110-02-.04 provides that the
Commission may suspend or revoke the certification of any law enforcement officer who is
convicted of violating a state or federal law relating to dishonesty:
(2) Suspension or Revocation of Certification. The Commission may initiate
disciplinary action upon receipt of a complaint or on its own initiative.
Complaints received by POST Commission are to be documented and if
allegations are warranted, the proper investigating authority will be notified,
and the proper action taken (T.C.A. §§ [sic] 38-8-104(b) [establishing the
Commission’s authority over enforcement]).
(a) Grounds for Suspension or Revocation. The Commission
may suspend or revoke the certification of any officer who shall,
subsequent to certification under these Rules:
. . .
2. Be convicted of or plead guilty or enter a plea of nolo
contendere to any felony charge or to any violation of any
federal or state laws or city ordinances relating to force,
violence, theft, dishonesty, gambling, liquor and other alcoholic
beverages, controlled substances, or a sufficient number of
misdemeanors to establish a pattern of disregard for the law . .
..
Tenn. Comp. R. & Regs 1110-02-.04(2)(a)(2) (2010) (emphasis added). The POST
Commission Rule adds that certification may be revoked upon conviction of “a sufficient
number of misdemeanors to establish a pattern of disregard for the law.” Under this Rule,
the Commission may initiate disciplinary action on its own initiative or “upon receipt of a
complaint.” The Rule neither describes nor limits who may file such a complaint. However,
it specifies that complaints are to be documented and “if allegations are warranted,” the
Commission is to take “proper action.” Id.; see also Tenn. Op. Att’y Gen. No. 00-191.
Hutchison Found in Criminal Contempt of Court
In 2001, Knox County Commissioner Wanda Moody (“Moody”) made a request under
the Tennessee Public Records Act for numerous documents in the possession of then-Sheriff
Hutchison. See T.C.A. § 10-7-503 (Supp. 2009). Hutchison responded to the request by
providing some, but not all, of the requested documents.
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In January 2002, Moody filed a Petition for Access to Public Records in the Knox County
Chancery Court.3 See Moody v. Hutchison, 159 S.W.3d 15, 17 (Tenn. Ct. App. 2004).
Hutchison still did not produce all of the responsive documents in his possession, and he
submitted written responses that were demonstrably false. Eventually, Moody filed a
contempt petition, seeking to have Hutchison held in contempt of court for filing numerous
untruthful responses to the various document requests. The trial court construed Moody’s
petition as a request that the trial court hold Hutchison in criminal contempt and conducted
an evidentiary hearing on the charges.
After the hearing, the chancellor concluded that Hutchison had made “at least six” false
representations in his responses that amounted to obstruction of justice in the underlying
legal proceeding and, thus, were criminally contemptuous. In an order dated February 12,
2003, the chancery court made six separate findings of criminal contempt against Hutchison
and imposed upon him the maximum fine of $50 for each offense, for a total of $300. Id.
at 22-25. The chancery court’s findings and the fines imposed were affirmed by this Court
on appeal. Id. at 26.
2003 Decertification Complaint to POST Commission
Soon after the Knox County Chancery Court held Hutchison in criminal contempt, a letter
of complaint was sent to the POST Commission by a Knox County citizen, asserting that in
light of the criminal contempt findings, Hutchison’s certification as a peace officer should
be “revoked,” and that he should be disqualified to serve as Sheriff of Knox County.4 The
complaint maintained that Hutchison’s criminal contempt convictions amounted to
conviction of a crime relating to dishonesty under the POST Commission rules.5 Similar
complaints were later filed with the POST Commission raising the same concerns.6
On April 11, 2003, the POST Commission held a meeting at which the members discussed
the complaints against Hutchison. Much of the discussion centered on whether the six
criminal contempt convictions were grounds to decertify him based on Rule 1110-02-.04 or
3
The trial judge was Chancellor Daryl Fansler.
4
There is no indication in the appellate record that the letter of complaint that is the subject of the 2003 POST
Commission proceedings was sent by any of the Plaintiffs in the instant case.
5
The complaint cited Tenn. Comp. R. & Regs. 1110-02-.04.
6
When the original complaints were filed, Hutchison was a member of the POST Commission. By the date
of the POST Commission meeting, at which the complaints against Hutchison were considered, Hutchison
was no longer a Commission member.
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Section 38-8-106(4). Ultimately, the Commission decided to seek an opinion from the
Attorney General as to “[w]hether a finding of criminal contempt by a civil court may be
considered a conviction of a ‘violation of any federal or state laws or city ordinance relating
to force, violence, theft, [or] dishonesty . . .’ as set forth under Tenn. Code Ann. § 38-8-
106(4) . . . .” The Commission deferred substantive consideration of the complaints on
Hutchison pending the receipt of such an opinion.
On May 27, 2003, the Attorney General issued Opinion No. 03-071, in which the Attorney
General’s office opined that a finding of criminal contempt in a civil matter “may not be
considered a criminal conviction for the violation of a law relating to force, violence, theft,
or dishonesty” within the meaning of either Tenn. Code Ann. § 38-8-106(4) or Rule 1110-02-
.04. The Attorney General opinion noted that Tennessee Code Annotated § 29-9-102, the
statute establishing the scope of a court’s power to inflict punishments for contempt of court,
did not include an element of “force, violence, theft, or dishonesty” as a requirement for a
finding of criminal contempt. See T.C.A. § 29-9-102. The opinion commented, however,
that the conduct that serves as the basis for the finding of criminal contempt might involve
“force, violence, theft, or dishonesty” and might be punishable as a separate offense, even
though “a conviction of criminal contempt under Tenn. Code Ann. § 29-9-102 itself does not
include any such element.”
On June 27, 2003, after the POST Commission received Attorney General’s Opinion No. 03-
071, a sub-committee of the Commission held a meeting to discuss the complaints on
Hutchison. After some discussion,7 the sub-committee voted to deny the request to decertify
7
The discussion at the POST Commission sub-committee meeting was reflective of the schism in the
discourse about Hutchison. As the sub-committee began its consideration of the complaints on Hutchison,
Commissioner Carlton Carneal stated:
I would like to address this issue. In the 16-1/2 years I have served on this Commission this
is the biggest bunch of bologna I have ever seen. This Commission was not established as
a place to air dirty laundry because of squabbles amongst Police Departments. The initial
letter that was sent in was something that was intended without a doubt to discredit the
honorable Sheriff of Knox County, Tim Hutchison, who served on this Commission for
approximately eight years. . . . This is not a court of law. . . . What I am saying it is wrong
it should have never been before this Commission.
In response, Commissioner Verna Wyatt stated:
I think when community members write in with a complaint, it is our responsibility to look
into it, and I have got to say, . . . I don’t know the Sheriff I have never met him, . . . but when
I read what the Chancellor wrote, I was very disturbed, because this is a Chief Law
(continued...)
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Hutchison, based on the Attorney General’s opinion. The matter was not pursued further at
that time.
2007: Hutchison Term-Limited, Then Appointed Deputy Sheriff
After Sheriff Hutchison weathered the controversy over the contempt convictions, the “term
limits” charter amendment adopted by the voters of Knox County came to affect Hutchison’s
service as Sheriff of Knox County.
Since 1990, Knox County has operated under an Article VII alternative form of county
government, a “Home Rule” charter. See Jordan v. Knox County, 213 S.W.3d 751, 757
(Tenn. 2007). In 1994, pursuant to voter initiative, the voters of Knox County voted
overwhelmingly in favor of a referendum to amend the Knox County Charter to limit Knox
County elected officials to no more than two consecutive terms. 8 In 1995, however,
Tennessee’s Attorney General issued an opinion that called into question whether a county
could constitutionally impose term limits on its elected officials. The matter was not brought
to a head at that time. In reliance on the Attorney General’s opinion, for many years, the
Knox County Election Commission and other Knox County officials refused to enforce the
term limits charter provision against Knox County elected officials, including Hutchison.
This remained the situation in August 2006, when Hutchison was re-elected to his fifth term
as Knox County Sheriff for the term beginning September 1, 2006. Id. at 759.
On January 12, 2007, the Tennessee Supreme Court issued its decision in Jordan v. Knox
County. In Jordan, the Court held that the term limit provision in the Knox County Charter
was valid, and that the offices to which it applied included that of the Knox County Sheriff.
Jordan, 213 S.W.3d at 784; see also Bailey v. County of Shelby, 188 S.W.3d 539 (Tenn.
2006) (holding that Shelby County’s Term Limits on its Mayor and Commission members
was constitutional). Because term limits go to a candidate’s qualifications for holding office,
it followed that numerous elected officials, including Hutchison, were deemed ineligible for
7
(...continued)
Enforcement Officer and he had six counts of contempt, lying, and that concerned me . . .
. That is not a good thing for a Chief Law Enforcement Officer to be involved in.
8
According to the amendment, “Effective January 1, 1995, no person shall be eligible to serve in any elected
office of Knox County if during the previous 2 terms of that office, the person in question has served more
than a single term.” Charter of Knox County, Tennessee, art. VIII, § 8.17, quoted in Jordan v. Knox County,
213 S.W.3d 751, 757 (Tenn. 2007).
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another term.9 Id. at 779, 784. Therefore, Hutchison’s 2006 election was in effect deemed
void. See Comer v. Ashe, 514 S.W.2d 730, 741 (Tenn. 1974).
Keenly aware of the sweeping effect of its decision, the Jordan Court noted that, under
Tennessee’s Constitution, the affected Knox County officials would remain in office until
a successor was elected or appointed. Jordan, 213 S.W.3d at 784. In Hutchison’s case, his
successor was appointed by the Knox County Commission. To that end, on January 31,
2007, the Knox County Commission met to appoint interim replacements for the twelve
term-limited elected officials, eight of whom were members of the Knox County
Commission itself.10
To replace Hutchison, the County Commission appointed James “J. J.” Jones, a long-time
employee of the Sheriff’s Department, to the position of Knox County Sheriff. Immediately
after this appointment, Jones appointed Hutchison to the office of Deputy Sheriff.
Meanwhile, in the November 2006 election, Knox County voters had amended the Charter
yet again, this time to adopt enhanced retirement benefits for law enforcement officers,
known as the “Uniformed Officers Pension Plan.” The Charter amendment was for “sworn
officers regularly employed by the Sheriff’s Department.” The enhanced Uniformed Officers
Pension Plan was set to become effective on July 1, 2007. Sheriff Jones’ appointment of
Hutchison as Deputy Sheriff, and the effect of the appointment on whether Hutchison would
qualify for the enhanced benefits under the Uniformed Officers Pension Plan, would provide
the impetus for the litigation to follow.
9
The positions that were term-limited included eight county commission seats and the offices of Sheriff,
Register of Deeds, Trustee, and County Clerk. See State ex rel. DeSelm v. Knox County Comm’n, No.
E2008-02627-COA-CV, 2010 WL 2978163, at *1 (Tenn. Ct. App. July 30, 2010).
10
The Knox County Commission meeting that was held in the wake of the Supreme Court’s opinion in
Jordan was referred to in another opinion by this Court: “The aforementioned county commission meeting
of January 31, 2007, at which interim replacements for the twelve term-limited officers were appointed, has
become popularly known as ‘Black Wednesday.’ ” State ex rel. DeSelm v. Knox County, No. E2007-00913-
COA-R3-CV, 2008 WL 3896763, at *4 (Tenn. Ct. App. Aug. 22, 2008). One journalist summarized the
actions of the Commission as follows: “At curtain’s close, the 12 appointments included the son of one
outgoing commissioner, the wife of another outgoing commissioner, the father of a sitting commissioner, a
top aide to the politically muscular sheriff, and a businessman who years earlier had come out on the wrong
end of a sexual harassment suit.” See BACKROOM POLITICS IS BROUGHT TO THE PEOPLE , AND THE PEOPLE
ST E P IN , Dan Barry, The New York Times (Feb. 4, 2008), at
http://www.nytimes.com/2008/02/04/us/04land.html (last visited Sept. 15, 2010). All of these appointments
were eventually invalidated in yet another separate lawsuit, as being in violation of Tennessee’s Open
Meetings Act. See State ex rel. DeSelm v. Knox County Comm’n, 2010 WL 2978163, at *8.
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DeSelm I
Soon after Sheriff Jones appointed Hutchison as Deputy Sheriff, the Plaintiffs became
convinced that the primary purpose of the appointment was to enable Hutchison to qualify
for the enhanced retirement benefits available under the Uniformed Officers Pension Plan.
They asserted that if Hutchison were allowed to remain a Deputy Sheriff for five months
until the scheduled effective date of the Plan, July 1, 2007, and Hutchison thereafter retired
as expected, Knox County taxpayers would be obliged to pay Hutchison a substantial
percentage of his salary, amounting to some $83,000 per year, or a total of $1,660,000 over
a life expectancy of twenty years, and that such a result would be unjust.11 Consequently, the
Plaintiffs commenced efforts to have Hutchison decertified as a law enforcement officer.12
The decertification efforts were premised on the assertion that, contrary to the earlier
Attorney General’s opinion, the 2002 findings of criminal contempt against Hutchison
amounted to a conviction relating to dishonesty under POST Commission Rule 1110-02-.04,
and thus constituted a basis for decertification.
To that end, on February 22, 2007, the twelve Plaintiffs in the instant case 13 filed their first
lawsuit in the Davidson County Chancery Court, a petition for declaratory judgment pursuant
to Tennessee Code Annotated § 29-14-101, et seq. Named as defendants were the POST
Commission, Hutchison, the Tennessee Attorney General, and the Knox County Mayor. The
petition sought a declaration that Hutchison was no longer qualified to be a Tennessee
certified law enforcement officer and Deputy Sheriff for Knox County due to the six findings
of criminal contempt in 2002. See State ex rel. DeSelm v. Tenn. Peace Officers Standards
Comm’n, No. M2007-01855-COA-R3-CV, 2008 WL 4614523, at *1 (Tenn. Ct. App. Oct.
16, 2008) (“DeSelm I”). The Plaintiffs’ petition also asserted claims based on ouster,
mandamus, and a violation of the Little Hatch Act, Tennessee Code Annotated § 2-19-201,
et seq. Id. The defendants in DeSelm I filed a motion to dismiss the complaint, asserting
that the Plaintiffs had failed to state a claim, that venue was improper, that the Plaintiffs did
not have standing to assert the ouster and Little Hatch claims, and that the case was barred
by the doctrine of prior case pending, by res judicata, and by estoppel. Id.
On May 30, 2007, the trial court, Chancellor Ellen Hobbs Lyle presiding, issued a
Memorandum and Order dismissing the claims against the Knox County Mayor, the Attorney
11
The record does not include information on the retirement benefits Hutchison would receive without the
enhanced benefits under the Uniformed Officers Pension Plan.
12
Whether decertification of Hutchison as a peace officer would actually affect his pension benefits is
disputed, as explained below.
13
Gloria Dessert was also a named plaintiff in DeSelm I, but she is not a named plaintiff in the instant case.
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General, and Hutchison, based on improper venue, failure to state a claim, lack of standing,
and sovereign immunity. Id. at *2. The trial court explained that the claims against the
Mayor and Hutchison were localized in Knox County, and that venue for an action against
these parties was improper in Davidson County. The trial court held that the Plaintiffs did
not have standing to bring an ouster or Little Hatch claim, because those statutes provided
only for criminal penalties, and thus, legal proceedings under those statutes could be
instituted only by the Attorney General. The trial court also concluded that claims against
the Attorney General were barred under the doctrine of sovereign immunity. Id.
As to the Plaintiffs’ claims against the POST Commission, the trial court acknowledged that
the doctrine of sovereign immunity prohibits lawsuits against a state agency such as the
Commission. It found, however, that sovereign immunity had been waived as to the POST
Commission through the promulgation of POST Commission Rule 1110-02-.04, which
authorizes citizens to file complaints with the POST Commission regarding the
decertification of peace officers, and also through the Uniform Administrative Procedures
Act (“UAPA”) declaratory judgment and order provisions, Tennessee Code Annotated §§
4-5-224; 4-5-225. The trial court reasoned that, if the POST Commission acts arbitrarily,
illegally, or fraudulently, or if it abuses its discretion with respect to complaints filed by
citizens, then its actions would be subject to a writ of certiorari. The trial court noted that
the Plaintiffs had neither filed an administrative complaint pursuant to Rule 1110-02-.04, nor
a petition for a declaratory judgment with the POST Commission. Consequently, the trial
court found, the Plaintiffs had not exhausted their administrative remedies.
Both the POST Commission and the Plaintiffs responded to the Chancellor’s decision.
Citing the POST Commission’s 2003 decision against decertifying Hutchison, the Plaintiffs
argued that seeking an administrative remedy would be pointless. The POST Commission,
on the other hand, argued that, based on its 2003 decision, the Plaintiffs were precluded from
filing an administrative complaint or petition for declaratory order with the POST
Commission based on principles of res judicata or collateral estoppel.
The trial court disagreed with both positions, noting that the circumstances had changed since
2003. The trial court explained that the POST Commission’s 2003 decision not to decertify
then-Sheriff Hutchison was premised on an incorrect application of the law, namely, the
“questionable” opinion expressed in Attorney General Opinion No. 03-071. The trial court
reasoned:
The scope of the decertification rule is broader than determined by the
Attorney General. The stated scope of the rule extends to crimes “relating to”
dishonesty; the rule does not narrowly require, as the Attorney General opines,
that dishonesty must be an actual element of the crime. Thus, the nature of a
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crime or charge should be evaluated in light of the underlying facts, which in
this case requires looking to the opinions issued by the Knox County
Chancellor and the Court of Appeals.
The trial court observed that Hutchison’s convictions for criminal contempt were based on
dishonest statements that “went beyond falsehoods; they were designed to impede the
processes of the court. It is difficult to see how such misconduct . . . does not qualify as a
violation of a state law related to dishonesty.” (Citation omitted). Therefore, the trial court
found that the preliminary evidence showed “that the 2003 decision of the POST
Commission was not correct as a matter of law.” On this basis, the chancery court found that
the Plaintiffs had available to them an administrative remedy with the POST Commission,
and that it did not have jurisdiction over the Plaintiffs’ claims against the POST Commission
due to their failure to exhaust their administrative remedies. Thus, all of the Plaintiffs’
claims were dismissed.
The trial court’s ruling prompted the Plaintiffs to immediately file three letter complaints
with the POST Commission. In the first letter, dated May 30, 2007, the Plaintiffs asked the
POST Commission to “hold a special meeting on or before June 15, 2007 and that Timothy
Hutchison be decertified as a law enforcement officer” based on the findings of criminal
contempt. The next day, the Plaintiffs sent a second letter to the POST Commission seeking
declaratory relief “pursuant to T.C.A. § 4-5-225(b)14 for a declaration by P.O.S.T. that the
convictions of Timothy Hutchison submitted to P.O.S.T. by [Plaintiffs’] letter of May 30,
2007 constitute offenses ‘relating to dishonesty’ within the meaning of T.C.A. § 38-8-104(4)
and P.O.S.T. regulation 1110-2-.04(2)(a)(2).” The letter informed the Commission that time
was of the essence because of the impending effective date of the new enhanced pension
plan, July 1, 2007. The next day, on June 1, 2007, the Plaintiffs sent the POST Commission
14
Sections (a) and (b) of the statute provide:
(a) The legal validity or applicability of a statute, rule or order of an agency to specified
circumstances may be determined in a suit for a declaratory judgment in the chancery court
of Davidson County, unless otherwise specifically provided by statute, if the court finds that
the statute, rule or order, or its threatened application, interferes with or impairs, or threatens
to interfere with or impair, the legal rights or privileges of the complainant. The agency shall
be made a party to the suit.
(b) A declaratory judgment shall not be rendered concerning the validity or applicability of
a statute, rule or order unless the complainant has petitioned the agency for a declaratory
order and the agency has refused to issue a declaratory order.
T.C.A. § 4-5-225(a), (b) (2005).
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a third letter seeking similar declaratory relief pursuant to Tennessee Code Annotated § 29-
14-10315 that was “separate and apart” from the action filed pursuant to POST Commission
Rule 1110-02-.04. On June 4, 2007, the POST Commission sent the Plaintiffs a letter stating
that all of their requests would be considered at its June 15, 2007 meeting.
Meanwhile, in the chancery court action, on June 1, 2007, the Plaintiffs filed a motion to set
aside the May 30, 2007 dismissal of its claims against the POST Commission for failure to
exhaust, on the basis that the Plaintiffs had begun to pursue their administrative remedies.
On June 4, 2007, the chancery court denied the Plaintiffs’ motion to alter or amend. In the
order, however, the chancery court added that, if the POST Commission “refuse[d] to
consider the matter or act, or commits error in its response to the plaintiffs’ request for
expedited relief, this Court has jurisdiction under section 4-5-322(a)(1) of immediate review
of a preliminary or procedural agency action if reviewing the final agency decision would not
provide an adequate remedy.” On June 15, 2007, the Plaintiffs filed a motion to renew their
motion to alter or amend the May 30, 2007 order. Id. This was denied as well. The
Plaintiffs then filed the DeSelm I appeal to this Court.
15
That statute provides that any person “affected by” a statute may obtain a declaration of his rights under
the subject statute:
Any person interested under a deed, will, written contract, or other writings constituting a
contract, or whose rights, status, or other legal relations are affected by a statute, municipal
ordinance, contract, or franchise, may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract, or franchise and obtain
a declaration of rights, status or other legal relations thereunder.
T.C.A. § 29-14-103 (2000).
-13-
DeSelm II 16
During the chancery court proceedings and the pendency of the ensuing DeSelm I appeal,
the Plaintiffs continued to pursue their administrative remedies. At the scheduled June 15,
2007 POST Commission meeting, the Plaintiffs’ three letters were presented and discussed.
Although the POST Commission does not typically permit complainants or counsel for
complainants to argue before the Commission during its initial consideration of a citizen
complaint, an exception was made and counsel for the Plaintiffs, Herbert S. Moncier
(“Moncier”), was permitted to attend the meeting and argue on behalf of the Plaintiffs. At
the meeting, the POST Commission treated the Plaintiffs’ May 30, 2007 letter as a request
for emergency relief pursuant to Tennessee Code Annotated § 4-5-320(c),17 because the relief
requested was that Hutchison be decertified “on or before June 15, 2007.” The Plaintiffs’
other two letters were treated as requests for declaratory relief pursuant to Tennessee Code
16
We have labored in vain to find an understandable shorthand manner of distinguishing among the numerous
separate lawsuits stemming from the public controversies referred to in this Opinion, many of which are
styled similarly. For example, in State ex rel. DeSelm v. Knox County, No. E2007-00913-COA-R3-CV,
2008 WL 3896763 (Tenn. Ct. App. Aug. 22, 2008), another panel of this Court considered a complaint
regarding the validity of the Knox County Charter, and referred to that Knox County case as DeSelm I and
another related Knox County case as DeSelm II. Id. at *3. We acknowledge that these are different from
the DeSelm I and DeSelm II to which we refer in this Opinion, both of which were filed in Davidson County.
Notably, the Plaintiffs herein claim to have filed at least eighteen lawsuits “against various and sundry
defendants, including Knox County and county officers.” Owings, 2009 WL 1470704, at *2. The Plaintiffs
attempt to distinguish between the proceedings by reference to the county in which they were brought. In
our view, however, using such a distinction is more confusing than descriptive. Indeed, trying to differentiate
among the various lawsuits may be likened to trying to distinguish among the heads of the mythological
hydra.
17
Section (c) of the statute provides:
(c) No revocation, suspension, or withdrawal of any license is lawful unless, prior to the
institution of agency proceedings, the agency gave notice by mail to the licensee of facts or
conduct that warrant the intended action, and the licensee was given an opportunity to show
compliance with all lawful requirements for the retention of the license. If the agency finds
that public health, safety, or welfare imperatively requires emergency action, and
incorporates a finding to that effect in its order, summary suspension of a license may be
ordered pending proceedings for revocation or other action. These proceedings shall be
promptly instituted and determined.
T.C.A. § 4-5-320(c) (2005).
-14-
Annotated § 4-5-223,18 in effect asking the POST Commission to apply its rules to the facts
of Hutchison’s case.
After discussion, the POST Commission determined that emergency decertification or
suspension of certification was not warranted because (1) the same argument had been
presented and rejected in 2003, and (2) an affidavit from a Knox County Pension Board
representative stated that whether Hutchison remained certified as a peace officer would have
no effect on whether he could participate in the new enhanced pension plan.19 Regarding the
request for declaratory relief, having determined that emergency relief was not mandated, the
Commission proposed holding a contested case hearing on the matter on August 16, 2007.
The Plaintiffs’ counsel argued that such a delay would be a denial of justice, because the new
pension plan would become effective on July 1, 2007, and the Plaintiffs expected Hutchison
to retire or resign soon after he qualified for the enhanced pension benefits. The Commission
18
This statute provides in pertinent part:
(a) Any affected person may petition an agency for a declaratory order as to the validity or
applicability of a statute, rule or order within the primary jurisdiction of the agency. The
agency shall:
(1) Convene a contested case hearing pursuant to the provisions of this
chapter and issue a declaratory order, which shall be subject to review in
the chancery court of Davidson County, unless otherwise specifically
provided by statute, in the manner provided for the review of decisions in
contested cases; or
(2) Refuse to issue a declaratory order, in which event the person
petitioning the agency for a declaratory order may apply for a declaratory
judgment as provided in § 4-5-225.
(b) A declaratory order shall be binding between the agency and parties on the state of facts
alleged in the petition unless it is altered or set aside by the agency or a court in a proper
proceeding.
(c) If an agency has not set a petition for a declaratory order for a contested case hearing
within sixty (60) days after receipt of the petition, the agency shall be deemed to have
denied the petition and to have refused to issue a declaratory order.
T.C.A. § 4-5-223(a)-(c) (2005).
19
The affidavit of the Knox County Pension Board representative was unrebutted in the record before the
POST Commission, save for the argument of the Plaintiffs’ counsel to the contrary.
-15-
was unpersuaded and voted to convene a declaratory order contested case hearing pursuant
to Tennessee Code Annotated § 4-5-223(a)(1) on August 16, 2007.
Immediately after the POST Commission’s June 15, 2007 meeting, on the same day, the
Plaintiffs filed the DeSelm II lawsuit in the Davidson County Chancery Court against the
POST Commission. The DeSelm II lawsuit sought judicial review of the POST
Commission’s refusal to suspend Hutchison’s certification on an emergency basis, pending
its August 2007 contested case hearing. This second lawsuit was assigned to Chancellor Lyle
as well.20 On June 28, 2007, Chancellor Lyle granted the requested relief and ordered the
temporary suspension of Hutchison’s certification, pending the POST Commission’s August
16, 2007 contested case hearing.21 The Chancery Court entered a subsequent order clarifying
that its suspension of Hutchison’s certification was temporary in nature, pending the August
16, 2007 POST Commission decertification hearing. The trial court stated that, at the
conclusion of the hearing, the POST Commission was to decide whether to convert the trial
court’s temporary suspension to permanent decertification by the Commission, or whether
to deny decertification, thereby dissolving the temporary suspension issued by the trial
court.22 The trial court’s decision in DeSelm II was apparently not appealed.
Administrative Proceedings
On June 29, 2007, a notice of hearing was filed by the Tennessee Department of Commerce
and Insurance (“TDCI”) with the Administrative Procedures Division of the Secretary of
State’s Office, noticing the contested case hearing on Plaintiffs’ request for declaratory relief
for August 16, 2007. The Administrative Procedures Division assigned the matter to
Administrative Judge Mary M. Collier (“Admin. Judge Collier”).
After the notice of hearing was filed, several pre-hearing motions were filed by parties who
asserted an interest in the contested case. The Plaintiffs propounded discovery requests to
the POST Commission and to Hutchison, asking that they be required to respond by July 17,
2007, in order to allow time for a reply before the scheduled hearing. Attorneys for TDCI,
20
The second lawsuit was initially assigned to a different part of the chancery court, but was subsequently
transferred to Chancellor Lyle based on her involvement in the previous case. Although the Plaintiffs sought
to consolidate the second lawsuit with the first, that motion was denied.
21
At the trial court hearing, counsel for Hutchison made a special appearance and informed the trial court that
Sheriff Jones had reassigned Hutchison to a position that apparently did not require certification as a peace
officer, and emphasized that his certification had no bearing on his retirement.
22
Plaintiffs also requested that the trial court in DeSelm II enter an order prohibiting any Knox County
official from processing or approving of pension benefits for Hutchison. The trial court denied this relief.
-16-
the Tennessee Attorney General, and Hutchison all filed motions to dismiss.23 These motions
resulted in telephonic hearings before Admin. Judge Collier on July 17 and July 23, 2007.
On July 27, 2007,24 Admin. Judge Collier executed an order designating the proper parties
in the case. The Plaintiffs’ attorney, Moncier, had been initially misidentified as the
Petitioner; Admin. Judge Collier granted his request to identify the Plaintiffs as the
Petitioners. Because the TDCI challenged the Plaintiffs’ standing to pursue an action for a
declaratory order or a contested case regarding decertification, the TDCI was identified as
a Respondent. Because the Plaintiffs sought decertification of Hutchison, and because his
certification had already been temporarily suspended in DeSelm II, Hutchison was also
named as a Respondent in the administrative proceedings. Once Admin. Judge Collier
resolved these matters, she recused herself from the case because she had been employed
with the Attorney General’s office in 2003. The case was reassigned to Administrative Judge
Randall LaFevor.
Based on his review of the record, on August 3, 2007, Admin. Judge LaFevor executed an
order dismissing the Plaintiffs’ petition for declaratory relief.25 A copy of that order was sent
by fax to the Plaintiffs’ attorney on that same day. Admin. Judge LaFevor dismissed the
Plaintiffs’ petition based on his conclusion that they did not have standing. He rejected the
Plaintiffs’ assertion that they were “affected person[s]” under Tennessee Code Annotated §
4-5-223(a) based upon their status as Knox County taxpayers. Admin. Judge LaFevor noted
that, under the regulations of another state agency, the term “affected person” is defined as
someone “upon whom a statute, rule or order produces a specific and direct effect or
result.”26 Tenn. Comp. R. & Regs. 1200-10-.11(3) (emphasis added). He cited numerous
appellate court decisions as well. Admin. Judge LaFevor explained that the alleged harm to
the Plaintiffs, i.e. higher taxes resulting from the failure to decertify a law enforcement
officer, is not the type of connection required to establish standing:
In general practice, the affected persons who petition for Declaratory Orders
are those whose activities are authorized or regulated by the agency (e.g.
23
These motions were not included in the record on appeal. They are alluded to, however, in the orders filed
by the administrative judges involved in this case.
24
Though apparently executed earlier, the order was filed on August 1, 2007.
25
Some evidence in the record indicates that the order was executed on August 7, 2007.
26
Admin. Judge LaFevor recognized that the definition of the term “affected person” by another state agency
would not be controlling on the POST Commission, but found that the definition reflected the common usage
of the term in the context of administrative proceedings.
-17-
agency licenses, certificate holders, etc.). They are persons “upon whom a
statute, rule or order produces a specific and direct effect or result;” as
opposed to persons, like the Petitioners in this case, over whom the agency has
no authority or jurisdiction. The POST Commission has no authority to
impose, alter or amend tax laws, or to directly affect the taxation of the citizens
of Knox County. Additionally, it has no authority to award a retirement
benefit to police officers, or to increase or decrease the amount of a retirement
benefit conferred by Knox County or any other governmental entity. In short,
the POST Commission exercises no powers or duties that could lead to a
“specific or direct effect or result” to the claimed interests of the Petitioners.
(Footnote omitted). Thus, Admin. Judge LaFevor concluded, the Plaintiffs’ status as
taxpayers was insufficient to establish standing to seek declaratory relief “when they have
shown no specific and direct connection to the agency.”
After disposing of the Plaintiffs’ claims for declaratory relief, Admin. Judge LaFevor went
further and offered a recommendation. Admin. Judge LaFevor noted that the POST
Commission had not fully addressed the Plaintiffs’ May 30, 2007 letter of complaint
requesting Hutchison’s decertification; it had concluded that summary suspension of
Hutchison’s certification was not warranted but had not yet addressed the underlying
complaint seeking permanent revocation of Hutchison’s certification. Admin. Judge LaFevor
observed that the POST Commission was required to follow Rule 1110-02-.04(2)(a)(2),
which states that “[c]omplaints received by POST Commission are to be documented and if
allegations are warranted, the proper investigating authority will be notified, and the proper
action taken.” Because the POST Commission had taken no “follow-up action” on the
complaint, Admin. Judge LaFevor recommended that the POST Commission “reconsider”
that complaint “and take such further action as may be required by the POST Commission
Rules and Regulations.” Admin. Judge LaFevor acknowledged that he had no authority to
order the POST Commission to take action related to the Plaintiffs’ May 30, 2007 complaint,
because only the Plaintiffs’ complaint for declaratory relief was at issue in the contested case,
but nevertheless offered his recommendation in the interest of promoting a full resolution of
the case. The order issued by Admin. Judge LaFevor became final on August 22, 2007.
By letter to the POST Commission dated August 10, 2007, Moncier, on behalf of the
Plaintiffs, inquired about whether the Plaintiffs’ complaint seeking Hutchison’s
decertification would be heard on August 16, 2007, as the POST Commission originally
scheduled. If so, Moncier requested that the Commission send him a copy of the full agenda
for the meeting. In two letters dated August 14, 2007, a representative of the TDCI informed
Moncier that the POST Commission’s contested case hearing scheduled for August 16, 2007
had been cancelled in light of Admin. Judge LaFevor’s ruling, and that “all that exists is a
-18-
complaint that has not been acted on by the Commission.” The TDCI representative
indicated, however, that the POST Commission intended to reconsider the Plaintiffs’ May
30, 2007 complaint for decertification, as is required under POST Commission Rule 1110-
02-.04(2). The next day, the TDCI representative sent Moncier another letter; this letter
informed him that the matter would be considered by the POST Commission on August 17,
2007. The letter explained that, although the POST Commission did not typically permit
complainants or counsel for complainants to provide input or make presentations before the
Commission in the course of its consideration of a complaint, it would nevertheless permit
counsel for the Plaintiffs to submit a two-page written summary for consideration at the
August 17, 2007 meeting.27 The record indicates that the Plaintiffs’ counsel did not submit
such a summary for the Commission’s consideration.
On August 17, 2007, the POST Commission conducted the meeting as scheduled. The
appellate record contains a transcript of those proceedings. Present at the meeting were
fourteen POST Commission members, five POST Commission staff members, and three staff
attorneys for the TDCI. The issue before the members was whether to dismiss the complaint
at the meeting or refer the complaint for investigation and further action.28 After
deliberations, the POST Commission voted to dismiss the complaint. Its dismissal was based
on the fact that the Commission had made a decision on decertification of Hutchison in 2003,
in reliance on Attorney General Opinion No. 03-071, and no factual changes had occurred
since that time.29 It was also based on evidence that Hutchison had already retired and
decertifying him would have no effect on his retirement benefits. One Commissioner
commented, “He is retired now and it’s a moot point.” The POST Commission therefore
voted to dissolve the Chancery Court’s temporary suspension of Hutchison’s certification in
DeSelm II.
27
The TDCI representative explained in a previous letter that complaints were ordinarily presented to the
POST Commission “anonymously in order to prevent any prejudice . . . .”
28
Actually, the POST Commission had under consideration two complaints against Hutchison, the one filed
by the Plaintiffs and one filed by two other citizens around the same time; both asserted that the criminal
contempt convictions left Hutchison no longer qualified to serve as a peace officer.
29
The POST Commission apparently did not have before it the Knox County Chancery Court order finding
Hutchison in criminal contempt of court, but was aware that the penalty imposed on Hutchison was a $300
fine. The fact that only a $300 fine was levied against Hutchison was interpreted by Commission members
as an indication that the offense was not of the most serious nature.
-19-
DeSelm III
On October 4, 2007, the Plaintiffs filed the instant lawsuit against the POST
Commission and Hutchison (collectively, “Defendants”) in the Davidson County Chancery
Court below (“DeSelm III”). This third lawsuit was assigned to Chancellor Lyle as well.
In Count I, the Plaintiffs sought a declaration that the POST Commission’s 2003 ruling was
legally erroneous, that Hutchison’s convictions for criminal contempt amounted to
convictions for violation of a state law related to dishonesty within the meaning of Tennessee
Code Annotated § 38-8-106(4) and that, therefore, Hutchison was no longer qualified to be
a certified law enforcement officer.30 Counts II and III of the Plaintiffs’ complaint asserted
that, because there was no investigation into Hutchison’s moral character prior to his
appointment as deputy sheriff, and because he did not actually have good moral character
when he was appointed, he was not qualified to serve as a law enforcement officer under
Tennessee Code Annotated § 38-8-106(8). In Count IV, Plaintiffs sought a declaration that
the effective date of Hutchison’s disqualification from holding office related back to the
dates of the disqualifying events, all of which took place on or before January 31, 2007.
Because he was not qualified under these provisions, the Plaintiffs asserted, Hutchison could
not lawfully claim any benefit as a law enforcement officer after January 31, 2007.
In Count V of the Plaintiffs’ complaint, they requested judicial review of the POST
Commission’s August 17, 2007 denial of the Plaintiffs’ request for a contested case hearing
to consider the decertification of Hutchison. In Count VI, the Plaintiffs sought judicial
review of Admin. Judge LaFevor’s order dismissing the Plaintiffs’ claims for declaratory
relief.
On November 28, 2007, the Defendants filed a motion to sever and dismiss Counts I through
IV, and to consolidate Counts V and VI as a single petition for judicial review pursuant to
Tennessee Code Annotated § 4-5-322. On December 7, 2007, the administrative record was
filed in the Chancery Court. On March 13, 2008, the Defendants filed a motion to dismiss
Counts V and VI of the Plaintiffs’ complaint for lack of standing, because the Plaintiffs were
not “aggrieved parties” within the meaning of Tennessee Code Annotated § 4-5-322.
30
The Plaintiffs also alleged that Hutchison violated Tennessee Code Annotated § 38-8-310, which prohibits
law enforcement officers from engaging in political activity, supporting or opposing a political candidate in
any election. In addition, the Plaintiffs pointed out that “[a]ny person who appoints any applicant, who, to
the knowledge of the appointor, fails to meet the minimum standards as set forth [in chapter 8] or as required
by the [POST Commission]” commits a Class A misdemeanor, apparently referring to Sheriff Jones. T.C.A.
§ 38-8-105(b) (2006).
-20-
On April 24, 2008, the trial court entered an order on the Defendants’ motion to dismiss the
Plaintiffs’ complaint. At the outset, consistent with the holdings in DeSelm I, the trial court
dismissed all of the claims against Defendant Hutchison because the Davidson County
Chancery Court did not have subject matter jurisdiction over him and venue was improper
because Hutchison is a Knox County resident being sued for events that occurred in Knox
County.31 Second, the trial court agreed with Admin. Judge LaFevor’s finding that the
Plaintiffs’ status as taxpayers did not give them standing as “affected person[s]” under
Tennessee Code Annotated § 4-5-223 to seek a declaratory order from the POST
Commission. Third, the trial court held that sovereign immunity precludes a declaratory
judgment action pursuant to Tennessee Code Annotated § 29-14-101, et seq., from being
brought against the State or one of its commissions. Thus, the trial court dismissed Counts
I, II, II, IV, and VI of the Plaintiffs’ complaint.
However, as to Count V, consistent with its holding in DeSelm I, the trial court held that the
Commission had waived sovereign immunity with respect to the claims brought pursuant to
POST Commission Rule 1110-02-.04. The trial court further held that the Plaintiffs had
stated a claim for relief and had standing with respect to Count V. To reach this conclusion,
the trial court allowed that it had to go through “a number of steps,” and then outlined its
reasoning. It noted that POST Commission Rule 1110-02-.04 “provides a process for citizen
complaints” by virtue of the provision, stating that “[c]omplaints received by POST
Commission are to be documented and if allegations are warranted, the proper investigating
authority will be notified, and the proper action taken (T.C.A. §§[sic] 38-8-104(b)).” The
trial court reiterated that Attorney General Opinion No. 03-071 was erroneous, and that the
POST Commission, in relying on it, had applied the wrong legal standard to the Plaintiffs’
complaint. The trial court maintained that the facts demonstrated that the findings of
criminal contempt against Hutchison may have been convictions of violations of state law
related to dishonesty, and asserted as well that the findings of criminal contempt could have
constituted “a sufficient number of misdemeanors to establish a pattern of disregard for the
law.” See Tenn. Comp. R. & Regs. 1110-02-.04(2)(a)(2). Therefore, the trial court found,
the POST Commission did not take “proper action” as required under Rule 1110-02-.04.
The trial court then addressed the issue of standing and the procedural grounds for
challenging in court the POST Commission’s improper handling of the Plaintiffs’ complaint.
The trial court concluded that the Plaintiffs’ complaint should be construed as a petition for
writ of certiorari pursuant to Tennessee Code Annotated § 27-8-101, et seq. The statute, it
said, “provides review of the actions of an inferior tribunal on extreme grounds: where the
tribunal violates the law and there is no other plain, speedy or adequate remedy.” Because
31
Plaintiffs did not challenge the dismissal of the claims against Hutchison individually. Therefore, any
claims against Hutchison individually are not at issue in this appeal.
-21-
the POST Commission had repeatedly denied the Plaintiffs declaratory relief and continued
to adhere to its 2003 ruling, the trial court reasoned, this was “one of those unusual cases
qualifying for relief under section 27-8-101, et seq.” Thus, the trial court held that the
Plaintiffs had standing and had stated a claim to challenge the refusal of the POST
Commission to investigate and decide the proper action to be taken in response to the
Plaintiffs’ complaint.
A few days later, on April 29, 2008, on its own initiative, the trial court changed course
somewhat with respect to Count V of the Plaintiffs’ complaint. The trial court noted that the
Plaintiffs’ complaint had not been verified and did not state that it was the first application
for the writ, both of which are jurisdictional requirements for a petition for a writ of
certiorari. Because the trial court had concluded previously that a writ of certiorari was the
only procedure by which the Plaintiffs could challenge the actions of the POST Commission,
the trial court dismissed Count V of the complaint.
In short order, the Plaintiffs filed a number of motions in the trial court. The motions filed
included a motion and a supplemental motion for additional findings pursuant to Rule 52.02
of the Tennessee Rules of Civil Procedure, as well as a motion to alter or amend the April
24, 2008 order pursuant to Rule 59.04. As to the April 29, 2008 order, they filed a Rule
52.02 motion for additional findings, a Rule 59 motion to alter or amend, and a Rule 60
motion to set the order aside. Finally, the Plaintiffs filed a motion to amend their complaint
to include a new Count VII, a petition for writ of certiorari, in an attempt to cure the
jurisdictional defect identified by the trial court in its April 29, 2008 order. On May 30,
2008, the POST Commission filed a motion to dismiss the Plaintiffs’ complaint on the basis
of prior suit pending, and also filed responses to all of the other motions filed by the
Plaintiffs.
On July 11, 2008, the trial court entered an order holding in abeyance all of the parties’
outstanding motions pending the outcome of the appeal to this Court in DeSelm I.
On October 16, 2008, this Court issued its Opinion in DeSelm I. State ex rel. DeSelm v.
Tenn. Peace Officers Standards Comm’n, No. M2007-01855-COA-R3-CV, 2008 WL
4614523 (Tenn. Ct. App. Oct. 16, 2008). The DeSelm I appellate court agreed with the trial
court’s conclusion that the Plaintiffs’ declaratory judgment action against the Attorney
General was barred by the doctrine of sovereign immunity, and held that the Plaintiffs’
claims against Hutchison and the Knox County Mayor were appropriately dismissed for
improper venue. Id. at *3-4. The appellate court also held that the Plaintiffs’ claims of
ouster and the claims brought pursuant to the Little Hatch Act were properly dismissed based
on lack of standing. Id. at *3. The Plaintiffs had argued that, pursuant to Bennett v. Stutts,
521 S.W.2d 575 (Tenn. 1975), they had standing to bring such a suit if they showed a special
-22-
interest or special injury not common to the public generally, and that they had demonstrated
such a special interest as “ ‘public spirited citizens’ who are trying to protect local
taxpayers.” The DeSelm I Court rejected that argument, holding that, “[c]learly, this is not
adequate to show a special interest or injury that is not common to the general public, as
citizens of Knox County are taxpayers.” Id.
This Court in DeSelm I also reviewed the trial court’s denial of the Plaintiffs’ Rule 59
motion for relief from the May 30, 2007 order dismissing their claims against the POST
Commission for failure to exhaust administrative remedies. As noted above, the Plaintiffs’
motion to set aside the dismissal was based on the fact that the Plaintiffs began to pursue
their administrative remedies after the trial court indicated that they were required to do so.
In affirming the trial court’s decision, the DeSelm I Court observed that a Rule 59 motion
is intended to allow a trial court to correct a mistake before a judgment becomes final, and
that such relief is appropriate when (1) the controlling law changes before a judgment
becomes final, (2) previously unavailable evidence becomes available, or (3) for sui generis
reasons, a judgment should be amended to correct a clear error of law or to prevent injustice.
Id. at *4 (citing Vaccarella v. Vaccarella, 49 S.W.3d 307 (Tenn. Ct. App. 2001)). Finding
none of those conditions present in DeSelm I, the appellate court affirmed the trial court’s
denial of the Plaintiffs’ motion for Rule 59 relief. Id.
After issuance of the appellate court’s decision in DeSelm I, on March 13, 2009, the POST
Commission filed an amended motion in the Chancery Court below in DeSelm III to dismiss
the Plaintiffs’ complaint, arguing that the decision in DeSelm I barred further claims for
relief against the POST Commission based on the doctrines of res judicata and collateral
estoppel. The POST Commission also argued that the case was moot for lack of a justiciable
controversy. On March 31, 2009, the Plaintiffs filed a response, arguing that DeSelm I was
not binding authority in DeSelm III because it was an unpublished opinion, that the DeSelm
I incorrectly concluded that the Plaintiffs did not have standing, and that DeSelm I did not
address any of the issues relied upon by the POST Commission in its motion to dismiss the
DeSelm III action.
On May 1, 2009, the trial court entered an order on the outstanding motions. It denied the
Plaintiffs’ motion for relief pursuant to Rules 52, 59, and 60 with respect to Counts I, II, III,
IV, and VI of the Plaintiffs’ complaint.
As to Count V of the complaint, however, the trial court set aside the dismissal. The order
explained the trial court’s reasoning for doing so. It again reiterated its firm conclusion that
Attorney General Opinion No. 03-071 was legally erroneous, and that the Plaintiffs had a
stated a colorable claim in their assertion that the POST Commission erroneously relied on
it. The trial court then reversed its prior ruling that Count V was, in substance, a petition for
-23-
a writ of certiorari. However, it remained convinced that the Plaintiffs’ complaint to the
POST Commission contained allegations that were warranted, and that the POST
Commission’s own rules required it to investigate such a complaint and take proper action.
The trial court stated bluntly that the POST Commission had “repeatedly refused to take
proper action on the plaintiffs’ May 30, 2007 citizen complaint.”
The trial court acknowledged that a group of citizens such as the Plaintiffs would not
normally have standing to rectify wrongful acts by an agency charged with the responsibility
for an individual’s license or privilege. It described this case as “unusual” in the sense that
the rules promulgated by the POST Commission “actually provide for citizen participation
by a complaint procedure.” The trial court then considered the POST Commission’s
“refusal” to investigate decertifying Hutchison, as well as the Plaintiffs’ “second tier
connection as citizens” to the POST Commission’s decision with respect to two issues: (1)
whether there was an appropriate legal theory for the wrong alleged by the Plaintiffs, and (2)
whether the Plaintiffs had standing to assert any claim based on that wrong. It explained:
Rectifying the incorrect interpretation of its decertification standards to
Officer Hutchison’s convictions for dishonesty that is at the heart of this case
is confounded by the plaintiffs’ second tier connection as citizens whose rights
before the POST Commission are limited to filing complaints requesting
POST to investigate Officer Hutchison’s certification. Finding a legal theory
for the plaintiffs’ appeal to this Court of the POST decision not to decertify
Officer Hutchison is like, to coin a phrase from Luigi Pirandello’s title “Six
Characters in Search of an Author,” “One Court in Search of a Legal Theory.”
In other words, the plaintiffs’ standing is a difficult issue, and for that reason
the Court has wrestled with this case, at first deciding upon one legal rationale
only to later find a flaw.
After studying the Plaintiffs’ complaint, the appellate court decision in DeSelm I, and the
applicable law, the trial court in DeSelm III found “a viable legal theory for the plaintiffs.”
It then construed the Plaintiffs’ claim as a petition for judicial review pursuant to Section 4-
5-322, which provides that “[a] person who is aggrieved by a final decision in a contested
case is entitled to judicial review under this chapter . . . .” Having thus characterized the
Plaintiffs’ claim, the trial court then concluded that the Plaintiffs qualified as “aggrieved”
persons within the meaning of Section 4-5-322 of the UAPA. The trial court detailed its
analysis to reach this conclusion:
In arriving at this decision, the Court’s detailed reasoning begins with
that part of Tennessee Code Annotated section 4-5-322(a)(1) that provides
judicial review of a final decision of an administrative agency to a “person
-24-
who is aggrieved by a final decree in a contested case.” “Aggrieved” is not
defined in the statute, but its meaning has been explained in case law.
In City of Brentwood v. Metropolitan Board, 149 S.W.3d 49 (Tenn. Ct.
App. 2004), using federal case law, the court explained that “history associates
the word ‘aggrieved’ with a congressional intent to cast the statutory net
broadly – beyond the common law interest and substantive statutory rights
upon which prudential standing traditionally rests.” With this premise, the
court held that a neighboring city, Brentwood, had standing to appeal the
decision of the Davidson County Board of Zoning Appeals issuance of a
building permit for a billboard in Davidson County along the corridor with
Brentwood. The court also found, from identifying the purpose of the
statutory scheme as stated therein, that Brentwood’s interest in the case was
within those sought to be protected by the zoning ordinance.
Applying the foregoing analysis to the plaintiffs in this case, the Court
concludes that the plaintiffs are aggrieved persons as required by Tennessee
Code Annotated section 4-5-322(a)(1) to permit them to seek judicial review.
In so concluding, the Court determines that “aggrieved” persons, as stated in
the Brentwood case’s citation of federal law, casts a broader net. This Court
concludes that the term “affected” persons in Tennessee Code Annotated
section 4-5-223 is not as broad. Relying heavily on the statement in the
Brentwood case of federal law that “aggrieved” looks beyond the common law
interest and substantive statutory rights upon which prudential standing
traditionally rests, this Court reasons that POST’s rules, themselves, open that
agency’s inquiries concerning decertification, somewhat, to the public with the
provision in Rule 1110-2-.04(2) [sic] that “complaints received by POST
Commission are to be documented and if allegations are warranted, the proper
investigating authority will be notified, and the proper action taken.” In this
case the plaintiffs availed themselves of the right granted to them under
POST’s rules by filing a complaint with POST on May 30, 2007. The
allegations of the plaintiffs’ complaint before this Court are that POST refused
to investigate the complaint and commence a decertification hearing based
upon POST’s application of an erroneous legal standing. These allegations,
the Court concludes, are sufficient to establish that the plaintiffs are
“aggrieved” as required by Tennessee Code Annotated section 4-5-322(a)(1)
to challenge the refusal of the POST Commission to investigate the plaintiffs’
complaint and take proper action.
Further, . . . the Court concludes that the plaintiffs have stated a claim
that the number and character of Deputy Sheriff Hutchison’s convictions state
a viable claim of misconduct, committed with respect to official work, and
qualify as a violation of state law related to dishonesty to warrant an
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investigation and decertification hearing by POST. The Court further
concludes that the plaintiffs have stated a claim that the POST Commission’s
narrow construction of the scope of the decertification law in relation to the
plaintiffs’ May 30, 2007 citizen complaint that resulted in the Commission not
investigating the complaint, not reviewing the conduct and not applying the
proper scope of the decertification standards to decide what actions should be
taken violated the plaintiffs’ Rule 1110-2-.04(2) [sic] right that “proper action”
be taken on citizen complaints. For these reasons, as well, the plaintiffs come
within the zone of interest sought to be protected by the statutes in issue.
Thus, the trial court “rel[ied] heavily” on this Court’s analysis of federal law in the City of
Brentwood case in determining that the term “aggrieved person” in Section 4-5-322 “casts
a broader net” than the term “affected [person]” in Section 4-5-223 and, thus, would include
the Plaintiffs under the circumstances of this case. Explaining the imperative for its lengthy
analysis, the trial court stated that “it is the process, investigation, deliberate and correct
review and explanation to the citizenry of this matter by the POST Commission which is
essential” and “important for the credibility of the law enforcement certification process in
Tennessee.”
After determining that the Plaintiffs had standing to assert that their rights under Rule 1110-
02-.04 were violated, the trial court nevertheless concluded that the Plaintiffs did not have
the right to participate in any contested case hearing on the decertification of Hutchison.
Again recognizing the Plaintiffs’ “second-tier connection” to the proceedings, it stated that
“POST’s obligation to the plaintiffs is to act on the latter’s complaint using a correct legal
standard. That obligation, though, does not give the plaintiffs the right to participate in the
contested case hearing. As required by statute, the decertification hearing must be prosecuted
at the behest of POST.” 32
On June 4, 2009, the Plaintiffs filed a motion pursuant to Rule 12.03 of the Tennessee Rules
of Civil Procedure for judgment on the pleadings, asking the trial court to “grant[ ] the relief
sought by Plaintiffs’ May 30, 31 and June 1, 2007 complaints and request[s] to P.O.S.T.”
Specifically, the Plaintiffs argued that, pursuant to Section 4-5-223(c), they were entitled to
judicial review of the POST Commission’s refusal to issue a declaratory order, stating,
among other things, that Hutchison was not qualified to serve as sheriff as of the date of his
criminal contempt convictions in February 2003, that the POST Commission’s 2003
32
The Plaintiffs and the POST Commission filed motions for interlocutory appeal of the trial court’s May
1, 2009 decision. These motions were rendered moot by the trial court’s subsequent entry of a final order.
-26-
conclusion that Hutchison should not be decertified as a result of those convictions was
erroneous, and that the POST Commission’s August 17, 2007 decision to dissolve the
temporary suspension of Hutchison’s certification was incorrect as a matter of law.
On June 26, 2009, the trial court entered a final order granting the Plaintiffs’ motion for
judgment on the pleadings with respect to Count V of the complaint. Incorporating the
language in its May 1, 2009 order, the trial court held that “POST’s failure to convene an
investigation and [take] proper action constitute grounds for judgment on the pleadings in
this case to reverse that action by POST and send this matter back to the POST Commission
for investigation and proper action against Officer Hutchison.” In addition, the trial court
held that “the POST Commission’s August 17, 2007 termination of this Court’s Temporary
Suspension Order in [DeSelm III] was erroneous as a matter of law.” Therefore, the trial
court concluded that the POST Commission’s decision “not to investigate and take proper
action on the plaintiffs’ May 30, 2007 complaint violated Tennessee Code Annotated § 38-8-
106(4) and the POST Commission’s Rule 1110-2-.04(2)(a)(2) [sic].” Based on these
holdings, the trial court remanded the case to the POST Commission with the following
instructions:
(1) under POST Commission Rule 1110-02-.04(2)(a)(2), crimes “relating to”
dishonesty do not require that dishonesty be an element of the crime, and
Hutchison’s six convictions for criminal contempt are convictions which
trigger suspension or revocation of certification under that rule;
(2) the POST Commission’s 2003 decision not to investigate Hutchison does
not apply and does not bar investigating and taking action on the May 30, 2007
complaint filed by Plaintiffs because of changed circumstances; first,
Hutchison was given a different position with the Knox County Sheriff’s
Department in 2007, and secondly, Hutchison’s convictions were affirmed
after that decision was made;
(3) the POST Commission must convene a contested case hearing to decide
whether to suspend or revoke Hutchison’s certification using these standards;
and
(4) Plaintiffs have standing to pursue this action based on the ability to file
complaints provided in POST Commission Rule 1110-02-.04(2), but they are
not allowed to participate in any contested case hearing on remand, because
they lack standing to do so.
Both the POST Commission and the Plaintiffs now appeal this decision.
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ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
The POST Commission raises several issues on appeal:
1. The trial court did not have subject matter jurisdiction to hear the case
2. The POST Commission’s decision whether to investigate a complaint filed
under POST Commission Rule 1110-02-.04(2) is not subject to judicial review
under Section 4-5-322
a. Section 4-5-322 applies to the review only of contested cases
b. Plaintiffs do not have standing to seek relief under 4-5-322
c. POST Commission Rule 1110-02-.04 does not confer any
procedural rights on Plaintiffs
3. Decisions concerning whether to investigate and/or bring an action against
a peace officer’s certification rests within the sound discretion of the POST
Commission and are not subject to judicial review
On cross-appeal, the Plaintiffs raise the following issues:
1. The trial court and the Administrative Judge failed to consider all of
Plaintiffs’ claims for standing
2. The trial court erred in dismissing Counts I, II, III, and IV of their
complaint
a. the POST Commission does not have sovereign immunity
from declaratory judgment actions
b. The trial court and the Administrative Judge failed to
consider all of Plaintiffs’ standing claims
3. Restrictions on their rights at a new contested hearing before the POST
Commission conflicts with their rights under the Tennessee Rules of the
Administrative Procedures Division
4. The Manifest Public Fairness Doctrine should be applied to have the trial
court resolve the conflicts between its orders and the 2003 POST Commission
order; the June 15, 2007 POST order and the August 17, 2007 order
We review the trial court’s findings of fact de novo on the record, presuming those facts to
be correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). We review
questions of law de novo on the record, with no such presumption of correctness. See State
v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997); Ridings v. Ralph M. Parsons Co., 914
S.W.2d 79, 80 (Tenn. 1996); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993).
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A NALYSIS
As a threshold matter, we are required to determine whether this Court has subject matter
jurisdiction to adjudicate the Plaintiffs’ claims. Subject matter jurisdiction is the “authority
of a court to adjudicate a controversy brought before it.” Haley v. Univ. of Tenn.-Knoxville,
188 S.W.3d 518, 522 (Tenn. 2006) (quoting Kane v. Kane, 547 S.W.2d 559, 560 (Tenn.
1977)). In the proceedings below, the issue of the Plaintiffs’ standing to bring this action
was the subject of much debate, and was a predominant issue in the various chancery court
rulings. In cases in which “a statute creates a cause of action and designates who may bring
an action, the issue of standing is interwoven with that of subject matter jurisdiction and
becomes a jurisdictional prerequisite.” Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004);
see also Pub. Employees for Envt’l Responsibility (Peer) v. Tenn. Water Quality Control
Bd., No. M2008-01567-COA-R3-CV, 2009 WL 1635087, at *6 (Tenn. Ct. App. June 10,
2009). Standing is a necessary prerequisite to the court’s exercise of jurisdiction. Osborn,
127 S.W.3d at 740. Stated differently, in the context of this case, if the Plaintiffs do not have
standing to bring the claims asserted below, then this Court and the trial court below are
without subject matter jurisdiction to hear them. Id. at 741. Thus, we must join the parties
and the trial court in further exploration of the doctrine of standing.
The determination of whether subject matter jurisdiction exists is a question of law, which
we review de novo, with no presumption of correctness in the trial court’s decision. Staats
v. McKinnon, 206 S.W.3d 532, 542 (Tenn. Ct. App. 2006). We consider first whether the
trial court erred in dismissing Counts I, II, III, IV, and VI of the Plaintiffs’ complaint. We
then address separately whether the trial court erred in finding that the Plaintiffs had standing
to assert the claims in Count V.
Counts I-IV and VI
Counts I-IV of the Plaintiffs’ complaint seek declaratory relief that Hutchison should not be
a certified law enforcement office on various bases, namely, his criminal contempt
convictions, his alleged lack of good moral character, the lack of an investigation into his
moral character, and declaratory relief on the effective date of his disqualification as a
certified law enforcement officer. Count VI seeks judicial review under Tennessee Code
Annotated § 4-5-322 of the decision of the Administrative Procedures Division to deny the
Plaintiffs a contested case hearing.33 The trial court dismissed these Counts of the complaint
based in part on its finding that “the plaintiffs’ status as taxpayers does not give them
standing,” in agreement with the finding of Admin. Judge LaFevor.
33
Apparently, the trial court construed this count in the complaint as a request for declaratory relief,
considering Counts I-IV along with Count VI.
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The doctrine of standing is “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.’ ” Mayhew v. Wilder, 46 S.W.3d 760, 766-67 (Tenn. Ct. App.
2001) (quoting 59 A M. J UR. 2 D Parties § 30 (1987)). The doctrine “is used to determine
whether a particular plaintiff is entitled to judicial relief. It requires the court to determine
whether the plaintiff has alleged a sufficiently personal stake in the outcome of the litigation
to warrant a judicial intervention.” Wood v. Metro Nashville & Davidson County Gov’t, 196
S.W.3d 152, 157 (Tenn. Ct. App. 2005) (citations omitted). “To establish standing, a
plaintiff must show: (1) that it has sustained a distinct and palpable injury, (2) that the injury
was caused by the challenged conduct, and (3) that the injury is one that can be addressed by
a remedy that the court is empowered to give.” Id. at 157-58.
The doctrine of standing is an important check on the power of the judicial branch in a
democracy. As this Court has recognized, the doctrine of standing precludes courts from
adjudicating an action at the insistence of one whose rights have not been infringed:
Grounded upon “concern about the proper – and properly limited – role of the
courts in a democratic society,” the doctrine of standing precludes courts from
adjudicating “an action at the instance of one whose rights have not been
invaded or infringed.” . . . Without limitations such as standing and other
closely related doctrines “the courts would be called upon to decide abstract
questions of wide public significance even though other governmental
institutions may be more competent to address the questions and even though
judicial intervention may be unnecessary to protect individual rights.”
ACLU of Tenn. v. Darnell, 195 S.W.3d 612, 619-20 (Tenn. 2006) (citations omitted), quoted
in Owings, 2009 WL 1470704, at *3.
The Supreme Court of Tennessee addressed the standing of private citizens to challenge the
actions of public officials in Bennett v. Stutts, 521 S.W.2d 575 (Tenn. 1975), cited by both
parties in this case. In Bennett, eighteen residents and taxpayers of Dyer County filed a
lawsuit against the Dyer County Quarterly Court and its members, seeking to invalidate the
election of the Dyer County Superintendent of Public Instruction. The plaintiffs in Bennett
alleged that the election, carried out by secret ballot of the Quarterly Court, was conducted
in direct violation of a statute that required that all votes be held openly, with each member’s
vote entered on the record. Bennett, 521 S.W.2d at 576 (citing T.C.A. § 5-518). The
plaintiffs asserted that the Quarterly Court engaged in a pattern of persistent violation of this
statutory requirement, and they sought a declaration voiding the election of the
Superintendent and restraining and enjoining the Superintendent from taking office or
performing any of the duties of office. Id. The trial court held that the action should have
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been filed as a quo warranto proceeding or by the candidate in the challenged election. The
plaintiffs then amended their complaint to state a quo warranto claim for relief. However,
the trial court then dismissed the lawsuit for lack of standing, finding that quo warranto
actions must be brought by the Attorney General, not by private citizens.
In affirming the decision of the trial court, the Supreme Court recognized the “settled law in
this state that private citizens, as such, cannot maintain an action complaining of the
wrongful acts of public officials unless such private citizens aver special interest or a special
injury not common to the public generally.” Bennett, 521 S.W.2d at 576 (citing Patton v.
City of Chattanooga, 65 S.W. 414 (Tenn. 1901); Skelton v. Barnett, 227 S.W.2d 774 (Tenn.
1950); Badgett v. Broome, 409 S.W.2d 354 (Tenn. 1966)). In further explanation, the Court
quoted the following excerpt from A MERICAN J URISPRUDENCE 2 D:
Public wrongs or neglect or breach of public duty generally cannot be
redressed at a suit in the name of an individual or individuals whose interest
in the right asserted does not differ from that of the public generally, or who
suffers injury only in common with the public generally, and not peculiar to
himself, even, it seems, though his loss is greater in degree, unless such right
of action is given by statute.
The broad general principle is asserted that in the absence of a statute
imposing liability, an action will not lie in behalf of an individual who has
sustained a private injury by reason of the neglect of a public corporation to
perform a public duty. When the duty of taking appropriate action for the
enforcement of a statute is entrusted solely to a named public officer, private
citizens cannot intrude upon his functions. In cases of purely public concern
and in actions for wrongs against the public, whether actually committed or
only apprehended, the remedy, whether civil or criminal, is as a general rule
by a prosecution instituted by the state in its political character, or by some
officer authorized by law to act in its behalf, or by some of those local
agencies created by the state for the arrangement of such of the local affairs of
the community as may be entrusted to them by law.
Id. at 577 (quoting 59 Am. Jur. 2d Parties § 30).
The Bennett Court acknowledged that requiring such actions to be brought by the Attorney
General “can create insurmountable problems,” and cautioned that “[p]ublic spirited citizens
should not be stifled or stopped in their search for [a] solution to public wrongs and official
misconduct such as are involved in this case.” Id. To prevent the stifling of such citizens,
the Bennett Court noted that, “[i]f the District Attorney General, in matters such as this,
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should act arbitrarily or capriciously or should be guilty of palpable abuse of his discretion
in declining to bring such an action, or in authorizing its institution, the courts will take
jurisdiction upon the relation of a private citizen, in the name of the State of Tennessee.” Id.
(citing cases). Under the circumstances in Bennett, however, the Court held that the
plaintiffs did not have standing, because they did not have a special injury not common to
the public generally. Id.
In the instant case, the POST Commission argues that, as in Bennett, the Plaintiffs did not
have standing to bring this action, because they failed to establish a special interest or an
injury not common to the public generally. In support, it cites two recent decisions from this
Court.
First, the Commission points out that, in DeSelm I, the Plaintiffs argued that they had
standing to pursue actions for ouster and claims under the Little Hatch Act, because they
were “public spirited citizens” trying to protect local taxpayers. The appellate court in
DeSelm I rejected this argument summarily, holding that such a basis for standing was
“clearly” inadequate to show a special interest or injury not common to the public generally.
DeSelm I, 2008 WL 4614523, at *6.
Second, the POST Commission cites State ex rel. DeSelm v Owings, No. E2008-02326-
COA-R3-CV, 2009 WL 1470704, at *2 (Tenn. Ct. App. May 27, 2009). In that case, the
same Plaintiffs involved in the instant case 34 sought a declaratory judgment and a writ of
mandamus, asking the trial court to require that the Knox County officers who were elected
in August 2008 be sworn in immediately following the certification of the election results.
The Plaintiffs asserted that they had standing to pursue the action. In Owings, the Plaintiffs
described themselves “as members of partnership of publicly spirited citizens” with “13
objectives in pursuit of the partnership’s ‘purpose,’ ” and purported to act for themselves and
“voters, taxpayers, candidates, [and] civic[-]minded citizens.” Owings, 2009 WL 1470704,
at *2. They sought to bolster their claim of standing by pointing out that they had
participated in some eighteen lawsuits against various defendants in furtherance of the
partnership’s purpose, arguing that their initiation of these lawsuits reflected their “special
interest, not shared by the public generally.” Id. The trial court nevertheless dismissed the
complaint for lack of standing.
On appeal in Owings, the Plaintiffs acknowledged the general rule that private citizens may
not bring suit based on the wrongful acts of public officials unless they could aver a special
interest or special injury not common to the public generally. They argued, however, that
34
The ten plaintiffs in Owings are all Plaintiffs in the instant case. Richard Held and Susan Jerkins, who are
Plaintiffs in the instant case, were not named plaintiffs in Owings.
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their lawsuit fell within the exception set out in Bennett v. Stutts, because they had served
a copy of the complaint on the Attorney General, who refused to proceed with the action.
Because he refused to proceed, the Plaintiffs argued that the trial court was obligated to hold
a hearing to determine whether the Attorney General had wrongfully refused to proceed with
the action, regardless of whether Plaintiffs otherwise had standing. Id. at *4. This Court
rejected that argument, holding that a recalcitrant Attorney General does not convert a
plaintiff without standing in the traditional sense into a plaintiff who has standing:
Bennett’s reference to the district attorney general is simply a recognition of
the unique role of the attorney general in suits of this nature. However, despite
this unique role, Bennett makes clear that the attorney general cannot “act
arbitrarily or capriciously” or “be guilty of palpable abuse of his discretion in
declining to” pursue or allow such a suit to be pursued in the attorney general’s
name. Bennett does not expressly say that the failure to act of a recalcitrant
attorney general will, ipso facto, convert a plaintiff, without standing in the
traditional sense, into a plaintiff with standing. In the absence of such an
express holding by the High Court, we conclude that the failure of an attorney
general to act or allow his or her name to be used, simply means that the
attorney general’s preeminent role in this area will give way to a plaintiff with
standing.
Id. at *5 (citations omitted; emphasis in original). Thus, it held that the Plaintiffs did not
have standing because they did not “aver special interest or a special injury not common to
the public generally.” Id. (quoting Bennett, 521 S.W.2d at 576); see also State ex rel.
DeSelm v. Knox County Comm’n, No. E2008-02627-COA-R3-CV, 2010 WL 2978163, at
*5-7 (July 30, 2010) (following Owings, holding that these plaintiffs lacked standing to seek
removal of Knox County office holders in a quo warranto action because they did not have
a special interest or a special injury not common to the public); State ex rel Watson v.
Waters, No. E2009-01753-COA-R3-CV, 2010 WL 3294109, at *6 (Tenn. Ct. App. Aug. 20,
2010) (holding that citizens seeking relief as to officials in Sevier County did not have
standing).
In this case, the Plaintiffs argue that the trial court erred in dismissing their claims for
declaratory relief in Counts I, II, III, IV, and VI based on lack of taxpayer standing. They
assert that this Court’s decisions in DeSelm I and Owings are unreported decisions that are
merely advisory, not controlling, and that they should not be followed in this case. Plaintiffs
argue that this Court in those cases misconstrued Bennett v. Stutts in determining that
Plaintiffs lacked standing.
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We are unpersuaded by the Plaintiffs’ argument that the DeSelm I and Owings cases should
be disregarded because they are not reported decisions, and we agree with the analysis in
those cases. Here the Plaintiffs have shown no special interest or injury beyond their concern
as “public spirited citizens.” The fact that this “partnership” has filed numerous lawsuits
does not, in and of itself, create a “special interest” necessary for standing. Thus, we must
agree with both Chancellor Lyle and Admin. Judge LaFevor that the Plaintiffs do not have
standing to seek declaratory relief pertaining to Hutchison’s certification as a peace officer.
Therefore, we affirm the trial court’s conclusion that the Plaintiffs lacked standing to seek
declaratory relief requested in Counts I, II, III, IV, and VI of their complaint.
Alternatively, the Plaintiffs argue that, if this Court affirms the trial court’s conclusion that,
as taxpayers, they did not have standing to pursue Counts I, II, III, IV, and VI, then this Court
should remand the case to the trial court to consider other bases for establishing standing,
including: (1) derivative statutory standing; (2) standing under Bennett v. Stutts; (3)
constitutional “local” taxpayer standing; (4) Tennessee taxpayer standing; and (5)
constitutional political association standing; (6) derivative right to sue from action localized
to Knox County; (7) right to sue the State provided by legislature; and (8) special interest and
injury standing. They claim that the issue of standing was not fully developed in this case,
and they request that this Court remand the case for consideration of these alternative bases
for standing.
We must respectfully decline the Plaintiffs’ request for a remand for further consideration
of their standing to maintain this lawsuit. From our careful review of the record, the trial
court was fully presented with the Plaintiffs’ arguments regarding standing, and it conducted
an exhaustive analysis of the case and the arguments presented by the parties. We find no
basis in the record for a remand of the case for reconsideration of these issues.
Count V
We next address the Plaintiffs’ standing to maintain Count V of their complaint, construed
by the trial court as a petition for judicial review of the actions of the POST Commission,
pursuant to Section 4-5-322 of the UAPA. T.C.A. § 4-5-322.
The trial court below held that the Plaintiffs had standing, pursuant to Section 4-5-322, to
seek judicial review of the POST Commission’s August 17, 2007 decision not to refer the
issue of Hutchison’s decertification for further investigation. It found such standing arose
from POST Commission Rule 1110-02-.04(2), which authorizes citizens to file complaints
with the Commission regarding officer certification, and provides further that if the
allegations are warranted, the POST Commission must notify the investigating authority and
take “proper action.” Because the Plaintiffs filed such a complaint, the trial court held, they
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were “aggrieved” persons under Section 4-5-322 as a result of the POST Commission’s
failure to take “proper action” on their complaint. On appeal, the POST Commission argues
that the trial court erred in concluding that the Plaintiffs are “aggrieved” persons within the
meaning of Section 4-5-322, because they do not have a special interest in the agency’s final
decision, and they are not subject to a special injury not common to the public generally.
The Plaintiffs maintain that the trial court correctly held that they had standing to bring the
action for judicial review under the UAPA, because “POST Rule 1110-02-.04(a)(2) [sic]
provided Appellees a right to present the claims. After POST voted to convene a contested
hearing on the claims, Appellees became a party . . . .”35 They argue that, in accordance with
the caselaw upon which the trial court relied, the UAPA should be given a liberal
construction and should be interpreted so as to confer standing upon them as “aggrieved”
persons.
To reiterate, it is the “settled law in this state that private citizens, as such, cannot maintain
an action complaining of the wrongful acts of public officials unless such private citizens
aver special interest or a special injury not common to the public generally.” Bennett, 521
S.W.2d at 576 (citing Patton v. City of Chattanooga, 65 S.W. 414 (Tenn. 1901); Skelton v.
Barnett, 227 S.W.2d 774 (Tenn. 1950); Badgett v. Broome, 409 S.W.2d 354 (Tenn. 1966)).
This “special interest” or “special injury,” also referred to as a “distinct and palpable injury,”
means an injury that is not common to the public generally. Wood, 196 S.W.3d at 157
(citations omitted).
The statute at issue, Section 4-5-322(a), specifies that relief may be had only by an
“aggrieved” person:
(a)(1) A person who is aggrieved by a final decision in a contested case is
entitled to judicial review under this chapter, which shall be the only available
method of judicial review. A preliminary, procedural or intermediate agency
action or ruling is immediately reviewable if review of the final agency
decision would not provide an adequate remedy.
T.C.A. § 4-5-322(a)(1) (2005) (emphasis added). Our Supreme Court has recognized that,
regardless of whether review of an administrative board’s decision is through the procedures
set out in the UAPA or through a petition for a writ of certiorari, “review of a final order or
judgment of any board of commission functioning under the laws of this state is limited to
35
The Plaintiffs also argue that the appellate court decisions in DeSelm I and Owings are not instructive on
the issue of standing as to Count V either, because they are unreported cases. As noted above, this argument
is without merit.
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those ‘aggrieved’ by the decision.” Roberts v. State Bd. of Equalization, 557 S.W.2d 502,
503 (Tenn. 1977).
The term “aggrieved” is not defined in the statute. As used in Section 4-5-322, however, the
term does not include all persons who are “aggrieved” with in the lay meaning of the term,
i.e., persons who are “troubled or distressed in spirit.”36 This Court has held that “[t]o qualify
as a person aggrieved, in the legal sense, or as a person having a direct, immediate, and
substantial interest in the subject matter of the litigation, a party must have a personal or
property right to assert or defend in court in their own name, not a mere general interest in
the subject matter of the litigation in common with other citizens.” Metro. Gov’t of
Nashville & Davidson County v. Dep’t of Safety, 1986 WL 8973, at *6 (Tenn. Ct. App. Aug.
20, 1986). In the context of administrative proceedings, an “aggrieved person” is a person
who has a special interest in the agency’s final decision, or one who claims to have suffered
a special injury as a result of the decision that is not “common to all citizens similarly
situated.” McRae v. Knox County, No. E2003-01990-COA-R3-CV, 2004 WL 1056669, at
*3 (Tenn. Ct. App. May 7, 2004) (quoting Town of East Ridge v. City of Chattanooga, 235
S.W.2d 30, 32 (Tenn. 1950)). “The sort of distinct and palpable injury that will create
standing must be an injury to a recognized legal right or interest.” Wood, 196 S.W.3d at 158.
Where a party seeks relief under a statutory right, “the doctrine of standing requires the party
to demonstrate that its claim falls within the zone of interests protected or regulated by the
statute in question.” Id. Thus, in order to be “aggrieved,” a person “must satisfy the
requirements of standing to sue.” Tenn. Envt’l Council v. Solid Waste Disposal Control
Bd., 852 S.W.2d 893, 896 (Tenn. Ct. App. 1992).
In finding standing to assert Count V, the trial court relied in part on City of Brentwood v.
Metropolitan Board of Zoning Appeals, 149 S.W.3d 49 (Tenn. Ct. App. 2004), in which the
court held that a neighboring city, Brentwood, had standing to seek judicial review of a
decision of the Davidson County Board of Zoning Appeals regarding a building permit for
a billboard in Davidson County along the corridor with Brentwood. In particular, the trial
court relied on the appellate court’s statement that “[h]istory associates the word ‘aggrieved’
with a congressional intent to cast the standing net broadly – beyond the common-law
interests and substantive statutory rights upon which ‘prudential’ standing traditionally
rested.” Id. at 57 (quoting Federal Election Com’n v. Akins, 524 U.S. 11, 19 (1998)).
Casting a “broad net” then, the trial court in the instant case found that the Plaintiffs came
“within the zone of interest to be protected by the statutes in issue.”
In City of Brentwood, the court observed that, in land use cases, “many courts have
recognized that local governments may have standing to challenge the land use decisions of
36
WEBSTER ’S THIRD NEW INT ’L DICTIONARY 41 (1993).
-36-
neighboring local governments as long as the necessary aggrievement exists.” Id. at 58. It
explained that, in land use cases, “the concept of ‘aggrievement’ supplies the distinct and
palpable injury needed to have standing. When applied to local governments, aggrievement
encompasses interference with a local government’s ability to fulfill its statutory obligations,
or substantial, direct, and adverse effects on the local government in its corporate capacity.”
Id. (citations omitted). In its petition, the City of Brentwood had alleged that the
construction of the subject billboard would damage the “aesthetically appealing entrance to
Brentwood, thereby hurting the image of the City and its attractiveness to future residents,
businesses, tourists and other visitors,” and would interfere with Brentwood’s “Franklin
Road corridor program.” Id. at 59. This was found to be a substantial, direct, and adverse
effect on Brentwood in its corporate capacity, so the City of Brentwood was deemed to be
“aggrieved” within the meaning of the statutes. Id.
Assuming that the analysis in City of Brentwood would apply to the claim in Count V of the
complaint,37 with respect, we find that it only confirms our misgivings about the trial court’s
analysis of the Plaintiffs’ standing to maintain Count V. In City of Brentwood, to determine
standing, the Court focused on whether the interests Brentwood sought to protect were
“within the zone of interests protected by Nashville’s zoning ordinance.” Id. at 55, 56.
Ultimately, Brentwood was deemed to have standing because it would suffer “substantial,
direct, and adverse effects” from the construction of the billboard. Id. at 59. In other words,
Brentwood stood to suffer a direct injury from the outcome, the ultimate decision of the
administrative body.
In the case at bar, as to the ultimate outcome of the POST Commission proceedings, the trial
court correctly found that the only injury that the Plaintiffs would suffer was that of (very)
concerned taxpayers. It found standing to assert Count V, however, because the Plaintiffs
filed a complaint with the Commission, their complaint stated “a viable claim of misconduct”
by Hutchison, and the POST Commission did not take “proper action” in response to their
complaint. Thus, although the Plaintiffs would suffer no direct and palpable injury from the
POST Commission’s final decision not to decertify Hutchison, they were found to have
suffered direct and palpable injury from the POST Commission’s failure to take the proper
steps to reach its decision. The Plaintiffs, by filing a complaint within the Commission, were
in effect deemed to have created standing with regard to the process, but not the ultimate
outcome.
37
Count V of the complaint was construed below as asserting a claim under Tenn. Code Ann. § 4-5-322. The
City of Brentwood case evaluated standing and aggrievement under Tenn. Code Ann. §§ 13-7-206(b) and
27-9-101. City of Brentwood, 149 S.W.3d at 56-57.
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Even if the City of Brentwood “broad net” analysis of standing is applied, this is simply a
bridge too far. If a person was not “aggrieved” within the meaning of Section 4-5-322 before
he or she filed a complaint with the POST Commission, he or she cannot be converted into
an “aggrieved” person simply by filing such complaint. See Owings, 2009 WL 1470704, at
*5 (“Bennett does not expressly say that the failure to act of a recalcitrant attorney general
will, ipso facto, convert a plaintiff, without standing in the traditional sense, into a plaintiff
with standing.” (Emphasis in original)).
This rule of law is consistent with the terms of the administrative regulation relied on by the
Plaintiffs, POST Commission Rule 1110-02-.04. The Rule does not expressly confer any
rights on persons who file a decertification complaint, nor does it purport to provide legal
recourse to those whose complaints are not treated satisfactorily. The Plaintiffs imply such
legal recourse from the provisions that complaints filed with the Commission will be
documented, and that, “if allegations are warranted,” proper action will be taken. The POST
Commission Rule, however, “places no restriction on who may file a complaint with the
POST Commission[;] . . . there is no requirement that the person filing the complaint be a
law enforcement agency or have any particular standing.” Tenn. Op. Atty. Gen. No. 00-191.
The complaint may be anonymous, or it may come from someone who is not a citizen of the
affected county, or of Tennessee, or even of the United States. The logical extension of the
Plaintiffs’ reasoning would confer standing on a person outside of Tennessee to seek judicial
review of the POST Commission’s mishandling of their complaint against a Tennessee law
enforcement officer. Such a result does not comport with the well-established law of
standing. Therefore, under these circumstances, we cannot find that the mere filing of a
complaint with the POST Commission, even one with apparent merit, creates standing to
seek judicial review of the POST Commission’s handling of the complaint.
The Plaintiffs insist that, given the clear merit of their cause, there must be some means for
it to be addressed by the courts. However, “[t]he primary focus of a standing inquiry is on
the party, not on the merits of the party’s claim. Thus, a party’s standing does not depend on
the likelihood of success of its claim on the merits.” Wood, 196 S.W.3d at 158 (citations
omitted).
This analysis is consonant with the longstanding judicial construction of Tennessee law that
private citizens, as such, cannot maintain a legal action regarding the wrongful acts of public
officials, absent a “special interest or a special injury not common to the public generally.”
Bennett, 521 S.W.2d at 576 (citing cases). “The legislature is presumed to know the
interpretation which courts make of its enactments,” and “the fact that the legislature has not
expressed disapproval of a judicial construction of a statute is persuasive evidence of
legislative adoption of the judicial construction.” Hamby v. McDaniel, 559 S.W.2d 774, 776
(Tenn. 1977) (citing cases). The legislature is, of course, at liberty to enact legislation which
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would expressly afford public-spirited citizens such as the Plaintiffs a legal remedy, and has
done so on in specific instances. See, e.g., State ex rel. Wolfenbarger v. Moore, No. E2008-
02545-COA-R3-CV, 2010 WL 520995, *3 (Tenn. Ct. App. Feb. 12, 2010) (quoting T.C.A.
§ 8-47-110), perm. to app. granted and denied, Aug. 25, 2010). The Legislature has enacted
no such provision in this case, and this Court is not at liberty to judicially create such a
remedy.
C ONCLUSION
Accordingly, we affirm the trial court’s decision to dismiss Counts I, II, III, IV, and VI for
lack of standing. We reverse the trial court’s conclusion that the Plaintiffs had standing to
challenge the POST Commission decision not to refer Hutchison’s decertification for further
investigation. Consequently, Count V must be dismissed for lack of standing. Therefore,
the Plaintiffs do not have standing to maintain any of the claims in their complaint, and the
complaint must be dismissed in its entirety. In light of these holdings, we find that the other
issues raised by the parties and not directly addressed herein are pretermitted.38
The decision of the trial court is reversed in part and affirmed in part as set forth above, and
the complaint is dismissed. Costs on appeal are to be taxed to Appellees Bee DeSelm, Carl
Seider, James Gray, Donna Brian, Mike Whalen, Susan Jerkins, Gerald Bone, Richard Held,
Albert Akerman, Margo Akerman, Robert Cunningham, and Millie Cunningham, for which
execution may issue, if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
38
On June 9, 2010, the Plaintiffs filed a “Motion to Apply The Manifest Public Fairness Doctrine.” In that
motion, the Plaintiffs requested that this Court apply the doctrine “to correct on remand any deficiencies the
Court may determine pursuant to any arguments that Appellees did not correctly style the case as being
brought in the name of the State of Tennessee for their claims pursuant to T.C.A. § 29-35-110.” In light of
our holding herein, we deny the Plaintiffs’ motion.
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