Jamesway Construction, Inc. v. David W. Salyers, P.E. (Dissenting)

09/20/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 9, 2024 Session

JAMESWAY CONSTRUCTION, INC. v. DAVID W. SALYERS, P.E.

Appeal from the Chancery Court for Davidson County

No. 23-0419-II Anne C. Martin, Chancellor

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No. M2023-01704-COA-R3-CV

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JEFFREY USMAN, J., dissenting.

The parties in the present appeal duel over the question of whether, when appealing

the decision of an administrative judge to the Board of Water Quality, Oil, and Gas in

relation to an alleged violation of the Water Quality Control Act, a party has 15 or 30 days

in which to appeal. Jamesway Construction, Inc. asserts that the Tennessee Department of

Environment and Conservation (TDEC) only had 15 days to appeal, and, accordingly, that

the administrative judge’s decision became final when TDEC failed to appeal within that

period. TDEC insists that it had 30 days to appeal, and, accordingly, that its appeal was

timely.

Tennessee Code Annotated section 69-3-110(a), a provision of the Water Quality

Control Act, expressly provides that “the administrative judge’s initial order, together with

any earlier orders issued by the administrative judge, shall become final unless appealed to

the board1 by the commissioner2 or other party within thirty (30) days of entry of the initial

order.”3 The majority, nevertheless, concludes that the commissioner or other party does

not actually have 30 days to appeal and instead must appeal within 15 days to prevent the

1

As defined in the Water Quality Control Act, the Board “means the board of water quality, oil

and gas, created in § 69-3-104.” Tenn. Code Ann. § 69-3-103(4).

2

As defined in the Water Quality Control Act, the Commissioner “means the commissioner of

environment and conservation or the commissioner’s duly authorized representative and, in the event of the

commissioner’s absence or a vacancy in the office of commissioner, the deputy commissioner.” Tenn.

Code Ann. § 69-3-103(6).

3

Under the Water Quality Control Act, “[a]ny hearing brought before the board pursuant to § 69-

3-105(i), § 69-3-109, § 69-3-115, § 69-3-116, or § 69-3-118 shall be conducted as a contested case. The

hearing shall be heard before an administrative judge sitting alone pursuant to §§ 4-5-301(a)(2) and 4-5-

314(b), unless settled by the parties.” Tenn. Code Ann. § 69-3-110(a).

administrative judge’s decision from becoming final. While the majority offers a

thoughtful opinion in support of this understanding, I respectfully disagree with the

conclusion reached by my colleagues.

Before we begin to put together the parts to see what the General Assembly has

legislatively designed regarding appeals to the Water Quality, Oil, and Gas Board from

decisions of administrative judges in relation to alleged violations of the Water Quality

Control Act, it is critical to make certain that we know, and have together, all the parts that

make up the final legislative product designed by the legislature. Much of my divide with

my colleagues in the present case involves a disagreement over whether a particular part

should be included as a component in putting together that final product.

The majority discounts a portion of the Tennessee General Assembly’s 2013

amendment of the Water Quality Control Act. Via a 2013 amendment to the Water Quality

Control Act, the General Assembly adopted the following provision:

For the purpose of construing this act in relation to the Uniform

Administrative Procedures Act, compiled in title 4, chapter 5, this act shall

be deemed to be procedural in nature. It is the intent of the general assembly

that this act and the Uniform Administrative Procedures Act shall be

complied with, however when in conflict, the provisions of this act shall

govern.

2013 Tenn. Pub. Acts, ch. 181 § 19. The majority disregards this provision because the

amendment has not been codified into the Tennessee Code Annotated despite being

approved through the legislative process in the General Assembly and signed into law by

the Governor. The majority regards the 2013 amendment as more akin to legislative history

that speaks to the legislative intent rather than actual law.

I disagree with this understanding of the uncodified portion of the 2013 amendment.

Tennessee Code Annotated section 1-1-108(a) authorizes the Tennessee Code Commission

to

rearrange, regroup and renumber the titles, chapters, sections and parts of

sections of the statutes, codes and code supplements and to change reference

numbers to agree with any renumbered chapter or section; to change the

wording of and prepare new section headings and symbols; to substitute the

proper section or chapter reference where the terms “this act” or “the

preceding section” or similar expressions are used in the statutes; to correct

manifest misspelling and typographical errors and to change capitalization

and spelling for the purpose of uniformity; to change references to

governmental agencies, departments and officers when part or all of the

powers, rights and/or duties of such agencies, departments or officers have,

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by an act of the general assembly, been transferred to other agencies,

departments or officers; to omit enacting clauses, repealing clauses,

severability clauses, conditional clauses, preambles, captions and statements

declaring legislative intent; and to make other stylistic, nonsubstantive

changes if such changes are consistent with style guidelines that have been

approved by the commission and submitted to the judiciary committee of the

senate and the civil justice committee of the house of representatives.

However, Tennessee law also provides that when “preparing the manuscript of the revised

compilation (including pocket supplements and replacement volumes) for publication and

distribution, the commission shall not alter the sense, meaning or effect of any act of the

general assembly, but shall copy the exact language of the text of the statutes, codes and

session laws of a public and general nature of the state of Tennessee.” Id. A contrary

approach allowing for “alteration of the sense, meaning or effect of any act of the general

assembly” by the Tennessee Code Commission would raise serious constitutional

concerns. See generally Tenn. Const. art. II (setting forth multiple clauses that address the

lawmaking process in the Tennessee General Assembly); Tenn. Const. art. III, § 18

(describing the procedure for presentment and signing or vetoing legislation by the

Governor).

Despite the prohibition on altering the sense, meaning, or effect of the text of the

statute as passed and even when exercising caution,4 it is possible for the Code Commission

to err. Tennessee courts have indicated that when such an error occurs it is the public act

that was passed into law by the General Assembly rather than the modified version that

appears in the code that is the law. See, e.g., State v. Frazier, No. M2016-02134-CCA-R9-

CD, 2017 WL 4251118, at *5 (Tenn. Crim. App. Sept. 25, 2017) (noting the existence of

a “codification error” and “that ‘[w]hen there is a conflict in the codification process, the

Public Act as originally passed controls’”); State v. Ford, No. M2007-00431-CCA-R3-CD,

2008 WL 1968824, at *4 (Tenn. Crim. App. May 7, 2008) (“Presumably, the Code’s

shortened and incomplete definition of ‘magistrate’ results from a codification error. When

there is a conflict in the codification process, the Public Act as originally passed controls.”);

State v. Hicks, 835 S.W.2d 32, 37 (Tenn. Crim. App. 1992) (stating that “the Public Act is

controlling and, when there is a conflict during the process of codification, the Act as

originally passed control”); see also Shelby Cnty. v. King, 620 S.W.2d 493, 498 (Tenn.

1981) (Brock, J., concurring) (“This change, however, is apparently the result of an

inadvertence of the Code Commission, since no public act in 1978 authorized such a

change in the wording of T.C.A., s 67-3012. . . . [T]he apparent change in T.C.A., s 67-

3012, purporting to extend the exemption to use taxes as well as the sales tax is wholly

4

The Tennessee Supreme Court has indicated that in fulfilling its duties “the Code Commission

should exercise great care in altering the text of a statute” because it is not authorized to “alter the sense,

meaning or effect of any act of the general assembly.” Garrison v. Bickford, 377 S.W.3d 659, 665 n.7

(Tenn. 2012) (citations omitted).

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ineffectual.”); cf. Westbrook Ins. Co. v. Crosby, No. 2:22-cv-2406-MSN-atc, 2023 WL

3767085, at *19 (W.D. Tenn. Jun. 1, 2023) (“If the Code Commission was responsible for

the change, then that change could not have altered the meaning of 56-7-105 because the

Code Commission lacks authority to make substantive changes to the meaning of the

Tennessee Code.”).5 Accordingly, I disagree with the majority’s understanding of the

uncodified portion of the 2013 amendment as no more than an indication of an unrealized

legislative intent rather than a part of Tennessee law. In other words, the 2013 amendment

to the Water Quality Control Act is one of the parts, one of the component pieces, that

make up the final legislative design for the process for appeals from administrative judges

before the Board of Water Quality, Oil, and Gas under the Water Quality Control Act.

In considering how the different parts fit together, as a starting point, Tennessee

Code Annotated section 69-3-110(a) of the Water Quality Control Act expressly provides

for an appeal to the Board of Water Quality, Oil, and Gas being timely when filed to the

within 30 days. This is a specific provision and would seem to govern, establishing 30

days as the permissible period for appeals to the Board of Water Quality, Oil, and Gas.

However, as properly noted by the majority, the Uniform Administrative Procedures Act

(UAPA) provides that “[a] petition for appeal from an initial order shall be filed with the

agency, or with any person designated for such purpose by rule of the agency, within fifteen

(15) days after entry of the initial order.” Tenn. Code Ann. § 4-5-315(b). Initially, this

would not seem to pose a problem for the 30-day window under Tennessee Code Annotated

section 69-3-110(a) as the language relating to the timing for appeals to the Board of Water

Quality, Oil, and Gas under the Water Quality Control Act is plainly more specific than

the Uniform Administrative Procedures Act. But, there is, again as is properly noted by

the majority, an added complication. The UAPA also provides that “[i[n any other case of

conflict between this chapter and any statute, whether general or specific, this chapter shall

control . . . .” Tenn. Code Ann. § 4-5-103(b). Additionally, as currently codified, the Water

Quality Control Act also states in a section enacted prior to the 2013 amendment that “it is

intended that all procedures in this part shall be in conformity with the Uniform

Administrative Procedures Act, compiled in title 4, chapter 5.” Tenn. Code Ann. § 69-3-

102(d). Such a result would fit within the framework of the UAPA’s objective which was

a response to the “growth in the number of agencies” and the accompanying problem that

had arisen in terms of “an ‘incoherent, and indeed incomprehensible hodgepodge’ of

procedures and a ‘very fragmented’ judicial review process” through creation of a

mechanism to “clarify and bring uniformity to the procedure of state administrative

5

Tennessee courts are far from alone in this understanding which aligns both with the federal

approach and that of other states. See, e.g., Stephan v. United States, 319 U.S. 423, 426 (1943) (indicating

that the United States “Code cannot prevail over the Statutes at Large when the two are inconsistent”);

Cont. Hydraulics Inc. v. Dept of Employment and Economic Dev., 832 N.W.2d 298, 301 n.4 (Minn. Ct.

App. 2013) (“Although this uncoded session law is not contained in Minnesota Statutes, it is binding

Minnesota law.”); State v. McFee, 136 Or. App. 160, 901 P.2d 870, 873 (1995) (noting that “when the law

as adopted by the legislature differs in substance from the law as codified, we must follow the legislature’s

version”).

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agencies and judicial review of their determination[s].” Pickard v. Tenn. Dep’t of Env’t &

Conservation, No. M2011-01172-COA-R3-CV, 2012 WL 3329618, at *9 (Tenn. Ct. App.

Aug. 14, 2012) (citations omitted).

This is the point where the majority’s assembly of the various components of the

legislature’s statutory design ends. While posing a problem in terms of rendering the 30-

day period of Tennessee Code Annotated section 69-3-110(a) a nullity, this configuration

would make sense in putting together the conflicting statutory provisions. My concern,

however, is that there is still a remaining unaccounted-for part—the 2013 amendment to

the Water Quality Control Act. As noted above, section 19 of chapter 181 of the 2013

Tennessee Public Acts provides:

[f]or the purpose of construing this act in relation to the Uniform

Administrative Procedures Act, compiled in title 4, chapter 5, this act shall

be deemed to be procedural in nature. It is the intent of the general assembly

that this act and the Uniform Administrative Procedures Act shall be

complied with, however when in conflict, the provisions of this act shall

govern.

This is the latest-in-time measure of the various parts adopted by the General Assembly in

statutorily designing the appeals process before the Board of Water Quality, Oil, and Gas.

In my view, for the reasons noted above, we cannot disregard this provision on the basis it

was left uncodified by the Code Commission. Section 19 of chapter 181 of the 2013

Tennessee Public Acts remains law.

When we consider the 2013 amendment to the Water Quality Control Act as part of

the legislative design, it renders the deadline 30 days, not 15 days, for appeals filed to the

Board of Water Quality, Oil, and Gas for actions under the Water Quality Control Act. As

noted by the majority, the Tennessee Supreme Court has directed that in the event of

conflicting statutory provisions the more specific statutory provision takes precedence over

the more general provision. Falls v. Goins, 673 S.W.3d 173, 180 (Tenn. 2023) (quoting

Lovlace v. Copley, 418 S.W.3d 1, 20 (Tenn. 2013)). No provision at issue in the present

case approaches the level of specificity of Tennessee Code Annotated section 69-3-110(a)

which directly specifies the number of days (30) in which an appeal may be filed in

precisely this type of matter. The complication, though, remains that the UAPA claims to

govern in the event of both specific and general conflicts between its terms and other

statutory provisions. Nevertheless, under the 2013 amendment to the Water Quality

Control Act, this Act now specifically rejects applying the UAPA in event of a conflict

with the terms of the Water Quality Control Act. Thus, while the UAPA claims to apply

in the event of “any conflict” more generally, the Water Quality Control Act specifically

states that its terms apply rather than the UAPA. This is supportive of TDEC’s

understanding but not the firmest ground upon which to fully rest the analysis in the present

case. Ultimately, providing for additional security in the footing in this case is adherence

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to the Tennessee Supreme Court’s construction principal that “when ‘two acts conflict and

cannot be reconciled, the prior act will be repealed or amended by implication to the extent

of the inconsistency between the two.’” See Falls, 673 S.W.3d at 180 (quoting Hayes v.

Gibson Cnty., 288 S.W.3d 334, 337 (Tenn. 2009)). As asserted by Justice Antonin Scalia

and Professor Bryan Garner, there is “no doubt about it” that an implied repeal occurs when

a later statute “specifically permits what an earlier statute prohibited or prohibits what it

permitted.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 327 (2012). This understanding is consistent with previous decisions of the

Tennessee Supreme Court. For example, in Hayes v. Gibson County, a 2001 public act

was held to be irreconcilable with a 2000 private act where the public act established a

minimum salary of $50,805 for the juvenile court clerk while the private act mandated a

set salary of $32,000. Hayes, 288 S.W.3d at 338. The Tennessee Supreme Court reasoned

that because the public act mandated that the clerk absolutely could not be paid at the level

established by the private act, “the statutes are in irreconcilable conflict.” Id. at 339; see

also, e.g., Chartis Cas. Co. v. State, 475 S.W.3d 240, 246 (Tenn. 2015) (“The plain

language of section 578, stating that the assessments ‘shall no longer be imposed on

insurers,’ further supports our conclusion that the three workers’ compensation statutes

have been repealed insofar as they are inconsistent with section 578.”). The 2013

Amendment which states that the terms of the Water Quality Control Act apply when in

conflict with the UAPA, is later in time than the conflicting UAPA provision which

purports that it controls over conflicting statutory provisions and the conflicting Water

Quality Control Act provision that would favor the UAPA in any statutory conflict. Given

the conflicting nature of these provisions, each purporting to determine which statute

controls in the event of a conflict, the provision later in time, the 2013 amendment to the

Water Quality Control Act, applies. Accordingly, we return to where we began the highly

specific provision of Tennessee Code Annotated section 69-3-110(a), which directly

specifies the number of days (30) in which an appeal may be filed in precisely this type of

matter, with the UAPA not successfully rendering this provision a nullity. Therefore, I

would conclude that TDEC’s appeal was timely filed, and, thus, I respectfully dissent from

the majority’s thoughtful opinion in this case.

s/ Jeffrey Usman

JEFFREY USMAN, JUDGE

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