STATE EX REL. DESELM v. Jordan

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 16, 2008 Session

STATE OF TENNESSEE ex rel. BEE DESELM, ET AL. v. DIANE JORDAN,

ET AL.

Appeal from the Chancery Court for Knox County

No. 167799-2 Daryl R. Fansler, Chancellor

No. E2007-00908-COA-R3-CV - FILED SEPTEMBER 12, 2008

The plaintiffs brought this action seeking the removal of several Knox County officials from office

on the ground that they were ineligible for their positions by operation of the term limits provision

of the Knox County Charter. Six days after the plaintiffs filed their complaint, the Tennessee

Supreme Court heard arguments in the case of Jordan v. Knox County. The Supreme Court in its

Jordan opinion, released on January 12, 2007, decided all issues raised in the case before us.

Accordingly, we affirm the trial court’s dismissal of the plaintiffs’ complaint on the basis of

mootness.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

SHARON G. LEE, J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR. and D.

MICHAEL SWINEY , JJ., joined.

Herbert S. Moncier, Knoxville, Tennessee, for the Appellants, State of Tennessee and Knox County,

Tennessee, ex rel. Bee DeSelm, James Gray, Carl Seider, H.R. DeSelm, Jennifer Arthur, William

S. Collins, Donna Brien, David Havercom, Mary Hook, Susan Jenkins, and Miriam Levering.

James L. Murphy and Austin L. McMullen, Nashville, Tennessee, for the Appellee, Knox County

Election Commission.

John E. Owings, Knox County Law Director, and Martha Haren McCampbell, Deputy Law Director,

Knoxville, Tennessee, for the Appellees, Diane Jordan, Billy Tindell, John Griess, Mark Cawood,

John R. Mills, Phil Guthe, and Larry Clark.

Robert H. Watson, Jr., Knoxville, Tennessee, for the Appellee, Timothy Hutchison.

OPINION

I. Background

This case is one of many in a long-running controversy regarding the structure, composition,

and election procedures of the Knox County government. Shortly before this action was filed, three

of the plaintiffs in this action filed a declaratory judgment action asking the court to affirm the

validity of the Knox County charter (and presumably the effectiveness of term limits), among other

things. That case, which was dismissed simultaneously with the present action by the trial court in

a single memorandum opinion and judgment, came to be known as DeSelm I, and this case as

DeSelm II. The plaintiffs appealed the decision in both DeSelm I and DeSelm II, and this court did

not grant a motion to consolidate the appeals. In the DeSelm I opinion, State ex rel. DeSelm v.

Knox County, No. E2007-00913-COA-R3-CV, 2008 WL 3896763 (Tenn. Ct. App. E.S., filed Aug.

22, 2008), Judge Susano, writing for this court, ably set forth the lengthy and convoluted history that

provides the factual and procedural background for both DeSelm I and the present case. In the

following paragraphs, therefore, we quote extensively from the background section of DeSelm I,

with additions and deletions as appropriate to reflect the distinctions between DeSelm I and DeSelm

II.

In accordance with Article 7, § 1 of the Tennessee Constitution and Tenn. Code Ann. § 5-1-

201 et seq. (Supp.2007), counties in Tennessee may be organized under either the standard, state

form of county government, or the alternate, charter form of county government, sometimes called

“home rule.” In 1988, the voters of Knox County by referendum adopted the charter form of

government. Then in 1994, by another referendum, county voters approved an amendment to the

charter, subjecting various county officials to term limits. However, in 1995, the Tennessee Attorney

General issued an opinion stating that such term-limit provisions in county charters are

unconstitutional. Tenn. Op. A.G. No. 95-007, 1995 WL 69246 at *1 (Feb. 15, 1995). Officials in

Knox County thus proceeded on the assumption that the purported term limits were ineffective.

DeSelm I, 2008 WL 3896763 at *1.

That assumption remained officially uncontradicted until March 29, 2006, when the

Tennessee Supreme Court ruled that term limits in the Shelby County charter did not violate the state

constitution. Bailey v. County of Shelby, 188 S.W.3d 539, 544 (Tenn. 2006). That ruling seemed

to revive the long-dormant issue of Knox County term limits as well, and raised the specter that

some then-serving county officials might already be term-limited, and might therefore be ineligible

for re-election in 2006. DeSelm I, 2008 WL 3896763 at *1.

Bailey was decided some six weeks after the deadline to qualify for the May 2, 2006 Knox

County primary election had passed. A number of potentially term-limited county officials – twelve

commissioners and several countywide officers – were on the primary ballot, and it was too late to

remove their names. However, county elections officials began making contingency plans for the

August 3, 2006 general election, in the event of a court decision applying Bailey to Knox County

-2-

and thus disqualifying any term-limited candidates who might win their primary races on May 2.

Id.

Then the controversy took an unexpected twist. In the aftermath of Bailey, one of the

plaintiffs herein filed papers seeking to enforce the term limits in the Knox County charter. That

case, styled Gray v. Hutchison, Knox Co. Chancery No. 166649-1, was dismissed on April 5, 2006,

for lack of standing. More significantly, the trial court opined in dicta that the Knox County charter

might be invalid in its entirety, which would of course invalidate the term limits as well. Id.

The plaintiffs filed suit in DeSelm I on April 19, 2006, asking the trial court for a declaratory

judgment contradicting the Gray dicta and affirming the charter’s validity (and thus, presumably, the

term limits’ effectiveness). Meanwhile, on the same day that DeSelm I was filed, five county

commissioners filed a separate lawsuit, which became known as Jordan v. Knox County, Knox Co.

Chancery No. 166799-1. The commissioners, who stood to be disqualified if the charter (and thus

the term limits) were to be ruled valid, sought to have the charter declared invalid, thus essentially

converting the Gray dicta into binding precedent. DeSelm I, 2008 WL 3896763 at *2.

Approximately two weeks later, on May 2, 2006, the Knox County primary election occurred.

Most of the possibly term-limited officials won their primaries, thus potentially qualifying them for

the August general election – pending a decision on the charter. These officials won another victory,

in the courtroom, when the Jordan trial court issued its ruling on June 5, 2006. The trial court in

Jordan essentially adopted the Gray dicta, holding the Knox County charter invalid and thus

invalidating the term limits as well. This ruling meant that all of the May primary winners, including

those who could potentially have been disqualified as term-limited, would appear on the August 3,

2006, general election ballot. Meanwhile, the Supreme Court exercised its reach-down authority,

see Tenn. Code Ann. § 16-3-201(d) (Supp. 2007), and took appellate jurisdiction of the Jordan case.

Oral argument was scheduled for September 6, 2006 – a month and three days after the general

election. Id.

Eight possibly term-limited county commissioners were re-elected on August 3, 2006, as

were a possibly term-limited sheriff, county clerk, register of deeds, and trustee. On August 30,

2006, three of the plaintiffs in DeSelm I filed the present action, seeking to have the May and August

elections involving term-limited officials elections declared void, the winners ousted, and new

elections held. Id. at *3.

On January 12, 2007, the Supreme Court released its opinion in Jordan v. Knox County, 213

S.W.3d 751 (Tenn. 2007). The Supreme Court reversed the trial court in part and affirmed in part,

holding that the Knox County charter was not a valid de jure charter because it did not comply with

the enabling legislation for instituting a charter form of government, but that Knox County had been

operating under a valid de facto government created by the charter. Jordan, 213 S.W.3d at 774, 777.

-3-

The Jordan Court also held that the term limits amendment was valid and applicable to “all elected

Knox County Government officials except for the court clerks and the school board member[s].”

Id. at 755. This ruling settled any controversy created by the Gray dicta regarding term limits, which

was contradicted by the Supreme Court. The ruling also meant that the twelve previously-referenced

officials, who had been re-elected four months earlier, were in fact term-limited and therefore

ineligible to serve. However, the Court stated:

The terms of these public servants who are ineligible for another term

do not, however, end with the filing of this opinion. Pursuant to

article VII, section 5 of the Tennessee Constitution, every officer shall

hold office until a successor is elected or appointed and qualified. In

order to assure the continuous representation of all of the people of

Knox County in local governmental affairs and as a means of

preserving, without interruption, the continuation of essential

governmental services, those county commissioners and state

constitutional officers otherwise precluded from holding the offices

to which they were recently elected may continue as de facto officers

until their successors are named in accordance with law.FN13 See

Hogan v. Hamilton, 132 Tenn. 554, 179 S.W. 128, 129 (1915); see

also Cook v. State, 91 Ala. 53, 8 So. 686, 688 (1890) (holding that a

circuit clerk who was no longer qualified to serve was a de facto

officer until his successor qualified).

FN13. Article VII, section 2 provides that “[v]acancies in county

offices shall be filled by the county legislative body, and any person

so appointed shall serve until his successor is elected at the next

election occurring after the vacancy is qualified.” See State ex rel.

Winstead v. Moody, 596 S.W.2d 811, 812 (Tenn.1980).

Jordan, 213 S.W.3d at 784. As can be seen, this ruling states that the “county legislative body” –

in Knox County, the county commission – had the right to appoint interim replacements for the

twelve term-limited officers, eight of whom were members of the 19-person commission itself. The

commission did so on January 31, 2007.

On March 5, 2007, proceedings in both DeSelm I and DeSelm II, which had essentially been

put on hold while the Jordan case was litigated, resumed. A hearing was held on that date on the

various outstanding motions in the cases, including motions to dismiss that had been filed in this

case by the various defendants. The trial court granted these motions to dismiss. The trial court

held, in a memorandum opinion disposing of both DeSelm I and DeSelm II simultaneously, that it

had no authority to order new elections and that both cases were otherwise moot because of Jordan.

The plaintiffs timely appealed both cases.

-4-

II. Issue Presented

The issue presented in this appeal is whether the trial court erred in dismissing the Plaintiffs’

action because it has been rendered moot by the Supreme Court’s Jordan decision and subsequent

events including the election and installation of new Knox County officials in the positions of those

challenged by this lawsuit.

III. Analysis

A. Standard of Review

The issue of whether the trial court erred in granting the defendants’ motion to dismiss for

mootness is one of law, and thus our standard of review is de novo with no presumption of

correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett,

860 S.W.2d 857, 859 (Tenn. 1993); Alliance for Native Am. Indian Rights in Tenn., Inc. v. Nicely,

182 S.W.3d 333, 338-39 (Tenn. Ct. App. 2005) (“[d]etermining whether a case is moot is a question

of law”); DeSelm I, 2008 WL 3896763 at *4.

B. Mootness Doctrine

The trial court dismissed the plaintiffs’ complaint in this action upon its determination that

the issues raised by the pleadings were moot and that there remained no continuing justiciable

controversy. A case must maintain its justiciability throughout the entire course of the litigation in

order to avoid being dismissed as moot. State ex rel. Cunningham v. Farr, No. M2006-00676-

COA-R3-CV, 2007 WL 1515144 (Tenn. Ct. App. M.S., filed May 23, 2007). In Cunningham, this

court discussed the general principles guiding Tennessee courts in their application of the mootness

doctrine and the justiciability requirement, stating as follows:

To be justiciable, a case must involve presently existing rights, live

issues that are within a court’s power to resolve, and parties who have

a legally cognizable interest in the resolution of these issues. A case

is not justiciable if it does not involve a genuine, existing controversy

requiring the adjudication of presently existing rights. State v. Brown

& Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000);

State ex rel. Lewis v. State, 208 Tenn. 534, 537, 347 S.W.2d 47, 48

(1961); Ford Consumer Fin. Co. v. Clay, 984 S.W.2d 615, 616

(Tenn. Ct. App.1998).

The requirements for litigation to continue are essentially the same as

the requirements for litigation to begin. Alliance for Native Am.

-5-

Indian Rights in Tenn., Inc. v. Nicely, 182 S.W.3d 333, 338 (Tenn.

Ct. App. 2005). Thus, cases must remain justiciable throughout the

entire course of the litigation, including the appeal. State v. Ely, 48

S.W.3d 710, 716 n.3 (Tenn. 2001); Ford Consumer Fin. Co. v. Clay,

984 S.W.2d 615, 616 (Tenn. Ct. App. 1998); 1 Rotunda & Nowak §

2.13, at 268-69. A moot case is one that has lost its justiciability

because it no longer presents a present, live controversy. McCanless

v. Klein, 182 Tenn. 631, 637, 188 S .W.2d 745, 747 (1945); Hurd v.

Flores, 221 S.W.3d 14, ----, 2006 WL 1641520, at *13 (Tenn. Ct.

App. 2006); County of Shelby v. McWherter, 936 S.W.2d 923, 931

(Tenn. Ct. App. 1996). Thus, a case will be considered moot if it no

longer serves as a means to provide some sort of judicial relief to the

prevailing party. Knott v. Stewart County, 185 Tenn. 623, 626, 207

S.W.2d 337, 338-39 (1948); Ford Consumer Fin. Co. v. Clay, 984

S.W.2d at 616; Massengill v. Massengill, 36 Tenn.App. 385, 388-89,

255 S.W.2d 1018, 1019 (1952).

Determining whether a case or an issue has become moot is a

question of law. Hurd v. Flores, 221 S.W.3d at ----, 2006 WL

1641520, at *13; Alliance for Native Am. Indian Rights in Tenn.,

Inc. v. Nicely, 182 S.W.3d at 338-39. Thus, unless the case fits

within one of the recognized exceptions to the mootness doctrine,FN8

the courts will ordinarily vacate the judgment and remand the case to

the trial court with directions that it be dismissed. Ford Consumer

Fin. Co. v. Clay, 984 S.W.2d at 617; McIntyre v. Traughber, 884

S.W.2d at 138.

FN8. The courts have recognized several exceptions to the mootness

doctrine. Exercising their discretion, McIntyre v. Traughber, 884

S.W.2d 134, 137 (Tenn. Ct. App. 1994); Dockery v. Dockery, 559

S.W.2d 952, 955 (Tenn. Ct. App. 1977), they have declined to

dismiss cases when the issue involves important public interests,

when the issue is important to the administration of justice, and when

an issue is capable of repetition but will evade judicial review.1 State

ex rel Anglin v. Mitchell, 596 S.W.2d 779, 782 (Tenn. 1980); New

Riviera Arts Theatre v. State, 219 Tenn. 652, 658, 412 S.W.2d 890,

893 (1967); LaRouche v. Crowell, 709 S.W.2d 585, 587-88 (Tenn.

Ct. App. 1985).

Cunningham, 2007 WL 1515144, at *2-3.

1

The plaintiffs in the present case do not argue that any of the exceptions to the mootness doctrine apply.

-6-

As we stated in DeSelm I, “[t]he governmental controversies underlying this case have

continued apace in the 17 months since the final judgment, and recent developments – which have

come to our attention by way of motions to consider post-judgment facts hereby granted by us – are

significant to our mootness analysis.” DeSelm I, 2008 WL 3896763 at *4. At the Knox County

Commission meeting of January 31, 2007, interim replacements for the twelve term-limited officers

were appointed. Id. Those appointments were eventually invalidated in yet another separate lawsuit

by some of the plaintiffs in this case, among others, as being in violation of the Open Meetings Act,

Tenn. Code Ann. § 8-44-101, et seq. (Supp. 2007). Id. This ruling, in McElroy v. Strickland, Knox

Co. Chancery No. 168933-2, was announced on October 5, 2007. Id. The court in that case denied

a motion asking it to order a special election, stating it lacked authority to do so. Instead, the

commission made a second set of interim appointments on February 20, 2008, ostensibly conducted

in compliance with the Open Meetings Act. Id. Meanwhile, the process of electing permanent

replacements, who will fill out the remainder of the ousted officials’ four-year terms, began with the

primary election of February 5, 2008, and concluded with the general election of August 7, 2008.

Id. The officials elected on August 7, 2008 were sworn in and installed on August 29, 2008.

The plaintiffs sought the following relief in this action, as quoted from their complaint: (1)

“removal and forfeiture of office of [the] officers who were ineligible to be elected to their offices

in August 2002 effective September 1, 2002 because of Knox County Charter Term Limits”; (2) “to

declare void, or to void, actions taken by Defendants in the unlawful exercise of said offices”; (3)

“a declaratory judgment that Diane Jordan, Mary Lou Horner and John Mills [three of the

commissioners] were ineligible to be lawfully appointed to the Knox County Review Committee;

that the Knox County Charter Review Committee was not lawfully constituted; that the votes of [the

three commissioners] constituted an unlawful exercise of office; and that the actions of the Charter

Review Committee are void”; (4) that the court “issue mandatory injunctive relief in aide of its

judgment on this complaint”; and (5) for “damages including attorney fees and cost.” The plaintiffs

amended their complaint to include a request that the trial court declare the Knox County primary

election of May 3, 2006, and the general election of August 3, 2006, void, and that the trial court

issue an order to the Knox County Election Commission to hold a special election qualifying period,

special primary election, and special general election.

In light of the facts that all of the officials that this action sought to have removed as term-

limited no longer hold office, that their replacements have been ostensibly duly elected and

inaugurated in accordance with Tennessee law, and that the Supreme Court clearly held in Jordan

that the officials found to be term-limited in that case legitimately held office as de facto officers

until their successors were named in accordance with law, all of the issues raised by the complaint

are now moot.

Regarding the allegations in the complaint that certain of the actions taken by the county

commission are void because some of the commissioners were ineligible to hold office because of

-7-

the term limits charter provision, the Jordan Court, as already quoted above, stated that “[i]n order

to assure the continuous representation of all of the people of Knox County in local governmental

affairs and as a means of preserving, without interruption, the continuation of essential governmental

services, those county commissioners and state constitutional officers otherwise precluded from

holding the offices to which they were recently elected may continue as de facto officers until their

successors are named in accordance with law.” Jordan, 213 S.W.3d at 784 (emphasis added). The

Supreme Court clearly held that the defendant officers involved in this controversy had legitimately

held, and would legitimately continue to hold, office “until their successors are named in accordance

with law.” Id.

Although the process was not always a smooth one, as demonstrated by the voluminous

litigation it has spawned, the successors have now been named, elected, and inaugurated. As we

stated in DeSelm I, “it is abundantly clear from the above-stated facts, including post-judgment facts,

that the validity of the 2006 elections is itself also a moot point . . . .” The following observation

from DeSelm I is equally applicable to the present case:

The whole thrust of the plaintiffs’ argument has been that the interim

appointments authorized by Jordan should have lasted only until a special,

or “new,” election could be held, rather than until the August 7, 2008,

election. Even if the plaintiffs could prove this – which we doubt,

particularly given that the Supreme Court had every opportunity to so hold

in Jordan, yet did not do so – it would be impossible to fashion any

meaningful relief at this point, as permanent replacements have already been

elected[.]

DeSelm I, 2008 WL 3896763, at *5 (emphasis added). Regarding the plaintiffs’ request that the trial

court (and now this court) declare the 2006 elections “void,” plaintiffs’ counsel at oral argument,

while acknowledging that the general election was then scheduled to occur in less than two months,

stated, “I’m asking you to do that because it’s not moot at this moment . . . and . . . because in the

future, when these matters arise at the last minute . . . we have to be prepared next time to have our

courts step in[.]” It has been clearly held that this court is neither inclined nor authorized to issue an

advisory opinion in the absence of a live, justiciable controversy. State v. Brown & Williamson

Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000); Super Flea Market of Chattanooga, Inc. v.

Olsen, 677 S.W.2d 449, 451 (Tenn. 1984); Parks v. Alexander, 608 S.W.2d 881, 892 (Tenn. Ct.

App. 1980). The claim “for attorney fees and cost” must also be denied because there is no

underlying basis for recovery contained in the pleadings in this case.

-8-

IV. Conclusion

For the aforementioned reasons, the judgment of the trial court dismissing the complaint as

moot is affirmed. Costs on appeal are assessed to the Appellants, State of Tennessee and Knox

County, Tennessee, ex rel. Bee DeSelm, James Gray, Carl Seider, H.R. DeSelm, Jennifer Arthur,

William S. Collins, Donna Brien, David Havercom, Mary Hook, Susan Jenkins, and Miriam

Levering.

___________________________________________

SHARON G. LEE, JUDGE

-9-