William Thomas McFarland v. Michael S. Pemberton

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 8, 2016 Session

WILLIAM THOMAS MCFARLAND v. MICHAEL S. PEMBERTON ET AL.

Appeal by Permission from the Court of Appeals

Chancery Court for Roane County

No. 2014105 Jon Kerry Blackwood, Senior Judge

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No. E2014-02176-SC-R11-CV – Filed September 20, 2017

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CORNELIA A. CLARK, J., dissenting.

I cannot join the majority’s decision affirming the dismissal of William Thomas

McFarland’s election contest lawsuit. No statute expressly authorizes a county election

commission to convene a quasi-judicial hearing and resolve a pre-election challenge to a

circuit judge candidate’s satisfaction of constitutional residency requirements.1

Furthermore, the majority’s conclusion that county election commissions implicitly have

such authority ignores the fact that, where the General Assembly intends for a county

election commission to exercise such authority, it has enacted statutes expressly

providing such authority. The majority compounds this error by applying its holding

recognizing implicit authority in a manner that negates a statute explicitly granting Mr.

McFarland the right to file this election contest lawsuit challenging Michael S.

Pemberton’s satisfaction of constitutional residency requirements. Because the

majority’s decision is inconsistent with relevant statutes, with longstanding decisions of

this Court, and with commonsense, practical considerations, I dissent.

1

See Tenn. Cons. art. VI, § 4 (providing that every candidate for circuit judge “shall before his

election, have been a resident . . . of the circuit or district [for] one year”).

I. Factual and Procedural Background

On February 3, 2014, Mr. Pemberton filed his candidate nominating petition for

circuit court judge of the Ninth Judicial District with the Roane County Election

Commission (“Election Commission”).2 On March 31, 2014, Willis Hall, a resident of

the Ninth Judicial District and voter in Roane County, obtained, completed, and filed a

complaint with Election Commission. Mr. Hall asserted that Mr. Pemberton’s name

should not be placed on the August 7, 2014 ballot because he had not satisfied the

constitutional one-year district residency requirement and was, therefore, not qualified.

As the majority notes, in response to Mr. Hall’s complaint, the Election

Commission “conducted an independent investigation to determine whether Mr.

Pemberton” had satisfied the residency requirement. The Election Commission “set the

matter for a public hearing at its regular meeting on April 28, 2014.” Notice of the

hearing was published in a local newspaper. Mr. Hall and Mr. Pemberton had no right to

discovery, but they were allowed to submit written materials to the Election Commission,

and before the hearing they submitted U-Haul receipts, vehicle registration documents,

voter registration documents, Mr. Pemberton’s driver’s license, and copies of his utility

bills. As the majority notes, these documents are not included in the record on appeal.

Mr. Hall and Mr. Pemberton also submitted briefs, legal authorities, and affidavits to the

Election Commission, but not all of these documents are included in the record on appeal.

A certified court reporter attended the public hearing on April 28, 2014, and the

record on appeal includes a transcript of the public hearing. Mr. McFarland did not

participate in the hearing in his official capacity as Roane County Attorney, citing a

conflict of interest. The Election Commission retained another attorney to attend the

public hearing “only [to] answer questions from the [Election Commission] itself and

only pertaining to legal matters.” Mr. McFarland also did not participate in the public

hearing in his capacity as a candidate opposing Mr. Pemberton in the election for circuit

court judge.

2

See Tenn. Code Ann. § 2-5-104 (2014) (stating that a candidate, other than a candidate in a

statewide election, an election for representative to the United States Congress, or an election for

municipal office, must “file the candidate’s original nominating petition with the chair or the

administrator of elections of the county election commission in the county in which the candidate is a

resident and [must] file certified duplicates of the nominating petition with the chairs or administrators of

the county election commissions in all counties wholly or partially within the area served by the office”

the candidate is seeking).

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Mr. Hall retained counsel for the hearing, but Mr. Pemberton represented himself.

The Tennessee Coordinator of Elections, Mark Goins, the Assistant Coordinator of

Elections, Beth Henry Robertson, and an attorney, Cara Hart, attended the public hearing

via speakerphone. At the beginning of the hearing, the Roane County Administrator of

Elections, at the request of the chair of the Election Commission, read aloud Tennessee

Code Annotated section 2-2-122—the statute that specifies the factors relevant to

establishing and determining residency for purposes of the election statutes—“so [that]

everybody understands what we are talking about here.”

Mr. Hall and Mr. Pemberton each were allotted fifteen minutes to speak to the

Election Commission, and Mr. Hall’s attorney spoke on his behalf, while Mr. Pemberton

spoke for himself. Mr. Hall’s attorney and Mr. Pemberton discussed the legal test the

Election Commission should apply to determine the issue and referenced prior decisions

of this Court and of the Court of Appeals. The speakers were not placed under oath, and

cross-examination was not allowed. Only the members of the Election Commission, the

Roane County Administrator of Elections, and the State Coordinator of Elections were

allowed to question speakers. Mr. Hall was not allotted time to reply to Mr. Pemberton’s

statement.

The Election Commission allowed members of the public present at the public

hearing to speak as well, so long as they registered their wish to do so. These so-called

“secondary speakers” were each allotted three minutes to speak, but they were not placed

under oath, and cross-examination was not allowed. All of these secondary speakers

supported Mr. Pemberton. At least two of these speakers, Mr. Pemberton’s wife and

sister-in-law, were lawyers and spoke about the legal test the Election Commission

should apply in determining the residency issue.

At the end of the public hearing, the Election Commission voted unanimously to

place Mr. Pemberton’s name on the ballot, but it offered no explanation for its decision.

There is no indication in the record on appeal that the Election Commission entered any

order or judgment reflecting its determination.3 Instead, later that same day, April 28,

2014, the Election Commission certified the ballot in Roane County listing Mr.

Pemberton and Mr. McFarland as the only two candidates for circuit court judge of the

Ninth Judicial District.4

3

Although statements at the public hearing indicate the Election Commission’s decision was

included in the minutes of the meeting, the minutes are not included in the record on appeal.

4

Mr. Pemberton was also listed on the ballot in the other counties making up the Ninth Judicial

District.

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On May 16, 2014, Mr. Hall filed a quo warranto action and a complaint for

declaratory judgment in the Chancery Court for Roane County, asking the trial court to

declare Mr. Pemberton disqualified based on his failure to satisfy the constitutional

residency requirement. Mr. Hall also argued that the Election Commission’s vote to

place Mr. Pemberton on the ballot constituted “an exercise of power not conferred by law

and/or being conducted outside the laws and regulations governing elections, and,

therefore, invalid and void ab initio.” Mr. Hall later moved to amend the complaint to

include a petition for writ of certiorari pursuant to Tennessee Code Annotated section 27-

9-101 (2014). On July 23, 2014, the Chancery Court entered an order memorializing Mr.

Hall’s voluntary dismissal of his quo warranto action, dismissing Mr. Hall’s declaratory

judgment action for lack of standing, and denying his motion to amend, reasoning that the

amendment would be futile because Mr. Hall was not a party “aggrieved” by the Election

Commission’s decision, within the meaning of section 27-9-101. Mr. Hall did not appeal

the ruling.

Mr. McFarland, who, again, did not participate in the public hearing in any

capacity, also did not attempt to seek judicial review of the Election Commission’s

determination. Rather, he raised questions about Mr. Pemberton’s satisfaction of the

residency requirement throughout the campaign, describing it on one occasion as an issue

“for the voters to decide.”

The election occurred on August 7, 2014, and Mr. Pemberton received the most

votes. The election results were certified on August 15, 2014, and five days later,5 on

August 20, 2014, Mr. McFarland filed this lawsuit. Mr. McFarland cited Tennessee Code

Annotated section 2-17-101, which provides, in relevant part, that “[t]he incumbent office

holder and any candidate for the office may contest the outcome of an election for the

office.” Tenn. Code Ann. § 2-17-101(b) (2014) (emphasis added). Mr. McFarland’s

complaint named as defendants Mr. Pemberton, the five members of the Election

Commission in their official capacities, and Mark Goins in his official capacity as the

Tennessee Coordinator of Elections. The sole basis for Mr. McFarland’s election contest

lawsuit was his allegation that Mr. Pemberton had failed to satisfy the constitutional

residency requirement and was not qualified for the position of circuit judge for the Ninth

Judicial District. Mr. McFarland asserted that raising the issue in an election contest

lawsuit was appropriate, and as support for this assertion, he cited Hatcher v. Bell, 521

S.W.2d 799 (Tenn. 1974). Mr. McFarland asked the trial court to declare the election

void, citing Tennessee Code Annotated sections 2-17-112 and 2-17-113. These statutes

authorize a court to enter a judgment in an election contest lawsuit “[d]eclaring the

election void,” Tenn. Code Ann. § 2-17-112 (2014), and provide that “[i]f the person

whose election is contested is found to have received the highest number of legal votes,

5

Tenn. Code Ann. § 2-17-105 (“The complaint contesting an election under § 2-17-101 shall be

filed within five (5) days after certification of the election.”).

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but the election is declared null by reason of constitutional disqualifications on that

person’s part or for other causes, the election shall be declared void.” Id. § 2-17-113

(emphasis added).

In separate motions, Mr. Pemberton and the Election Commission asked the trial

court to dismiss Mr. McFarland’s complaint and/or grant them summary judgment. They

argued that Mr. McFarland’s complaint, although styled as an election contest lawsuit,

was in substance a collateral attack upon, or attempt to appeal, from the Election

Commission’s determination that Mr. Pemberton’s name should be placed on the ballot,

despite Mr. Hall’s challenge to Mr. Pemberton’s satisfaction of the residency

requirement. Having reframed the lawsuit in this manner, the defendants argued that Mr.

McFarland’s appeal was untimely because it was not filed within sixty days of the

Election Commission’s determination.

As support for this argument, the defendants relied upon Tennessee Code

Annotated sections 27-9-101 and 102. These statutes provide as follows:

27-9-101. Right of review. — Anyone who may be aggrieved by

any final order or judgment of any board or commission functioning under

the laws of this state may have the order or judgment reviewed by the

courts, where not otherwise specifically provided, in the manner provided

by this chapter.

27-9-102. Filing and contents of petition. — Such party shall,

within sixty (60) days from the entry of the order or judgment, file a

petition of certiorari in the chancery court of any county in which any one

(1) or more of the petitioners, or any one (1) or more of the material

defendants reside, or have their principal office, stating briefly the issues

involved in the cause, the substance of the order or judgment complained

of, the respects in which the petitioner claims the order or judgment is

erroneous, and praying for an accordant review.

Tenn. Code Ann. §§ 27-9-101, -102 (2014).

The trial court held a hearing on the motions, but the record on appeal does not

include a transcript of that hearing. Ultimately, the trial court agreed with the defendants,

ruling that the Election Commission’s April 28, 2014 determination was subject to

judicial review by way of a petition for writ of certiorari under sections 27-9-101 and -

102. The trial court agreed with the defendants that Mr. McFarland’s lawsuit was time

barred because it was not filed within sixty days of the Election Commission’s

determination. The Court of Appeals affirmed. This Court granted Mr. McFarland’s

timely filed application for permission to appeal. The majority now affirms the

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judgments of the courts below. For the reasons herein explained, I cannot join the

majority’s decision.

II. Standard of Review

The material facts are undisputed, and the resolution of this case involves

questions of law and depends upon the interpretation and application of statutes and prior

judicial decisions. De novo review applies, and a presumption of correctness does not

apply to the decisions of the courts below. Tennessean v. Metro. Gov’t of Nashville, 485

S.W.3d 857, 862-63 (Tenn. 2016).

In construing statutes, the primary objective of appellate courts is to determine and

effectuate legislative intent and purpose. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368

(Tenn. 2012). The statutory text is of central importance, and the words used must be

given their natural and ordinary meaning in the context in which they appear and in light

of the statute’s general purpose and the entire statutory scheme. Griffin v. Campbell

Clinic, P.A., 439 S.W.3d 899, 903 (Tenn. 2014). “Statutes relating to the same subject or

sharing a common purpose must be construed in a manner that ‘advance[s] their common

purpose or intent.’” Id. (quoting Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn.

1997)). “[A court’s] ultimate goal is to select a reasonable construction that avoids

statutory conflict and provides for harmonious operation of the laws.” Id. (internal

quotation marks and alterations omitted). Appellate courts avoid construing a statute in a

manner that unduly restricts or expands the statute’s coverage. Bryant v. Baptist Health

Sys. Home Care of E. Tenn., 213 S.W.3d 743, 748 (Tenn. 2006) (citing Houghton v.

Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002)); Owens v. State, 908

S.W.2d 923, 926 (Tenn. 1995)). “Courts may supply words when reasonably called for.

Nevertheless, it is the prerogative of the legislature, and not the courts, to amend

statutes.” City of Knoxville v. Entm’t Res., LLC, 166 S.W.3d 650, 658 (Tenn. 2005)

(internal quotation marks and alterations omitted). “Just as we may not overlook or

ignore any of the words in a statute, we must be circumspect about adding words to a

statute that the General Assembly did not place there.” Coleman v. State, 341 S.W.3d

221, 241 (Tenn. 2011) (internal citation omitted). “‘[W]here the legislature includes

particular language in one section of a statute but omits it in another section of the same

act, it is generally presumed that the legislature acted purposefully in the subject included

or excluded.’” In re Kaliyah S., 455 S.W.3d 533, 554 (Tenn. 2015) (quoting State v.

Pope, 427 S.W.3d 363, 368 (Tenn. 2013)).

In applying these rules to the statutes at issue in this appeal, it is also important to

remember that the Election Commission, like other governmental departments and

agencies, has “no inherent or common-law power” and is “purely a creature[] of statute.”

State ex rel. Com’r of Transp. v. Med. Bird Black Bear White Eagle, 63 S.W.3d 734,

768-69 (Tenn. Ct. App. 2001), perm. app. denied (Tenn. Dec. 10, 2001). As such, the

Election Commission has “only those powers expressly granted by statute and those

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powers required by necessary implication to enable [it] to fulfill [its] statutory mandate.”

Id. at 769 (emphasis added) (citing Sanifill of Tenn., Inc. v. Tenn. Solid Waste Disposal

Control Bd., 907 S.W.2d 807, 810 (Tenn. 1995); Tenn. Pub. Serv. Comm’n v. S. Ry., 554

S.W.2d 612, 613 (Tenn. 1977)). Application of these principles reveals the fatal flaws in

the majority’s analyses.

III. Analysis

A. Authority of County Election Commissions

The General Assembly has not enacted any statute explicitly authorizing county

election commissions to convene quasi-judicial hearings to resolve challenges to a

candidate’s satisfaction of constitutional residency requirements. However, the General

Assembly has enacted a statute explicitly providing that, where a county administrator of

elections refuses to accept an application for voter registration, the applicant may appeal

the administrator’s decision to the county election commission. Tenn. Code Ann. § 2-2-

125(a)-(b) (2014). This statute very specifically provides the procedures and times

governing the challenge and the appeal. It requires the administrator to “tell the

registrant the reason” the application was rejected and to “write the reason on the back of

the original permanent registration record.” Id. § 2-2-125(a). The administrator also

must “tell the registrant that the registrant has a right to appeal the decision to the

commission within ten (10) days and offer the registrant an appeal form.” Id. § 2-2-

125(b). The statute expressly declares that “[t]he action of the [county] commission on

the registrant’s application for registration on appeal shall be a final administrative

action.” Id. § 2-2-125(c). “If the commission determines, after notice and hearing for the

appellant, that the appellant was not entitled to register, the commission shall give the

appellant a written statement of its reasons for so holding.” Id. § 2-2-125(d) (emphasis

added). Finally, the statute provides that “[i]f the commission believes that the appellant

has violated the law in registering,” the commission must “report the matter to the grand

jury and the district attorney general.” Id. § 2-2-125(e). These statutes illustrate that

when the General Assembly intends to confer quasi-judicial authority on county election

commissions, it does so explicitly, by providing a detailed and specific procedural

framework to circumscribe the authority it confers.6 The General Assembly has not

6

Other election statutes also illustrate that when the General Assembly intends for election

officials to exercise quasi-judicial authority, it provides such authority expressly. See Tenn. Code Ann. §

2-11-202(a)(5)(B) (2014) (describing the authority the Coordinator of Elections has when investigating

the administration of election laws and conferring on the Coordinator of Elections the power to issue

subpoenas, summon witnesses, administer oaths, take depositions, compel the production of documents,

exhibits, records, and things, and require testimony on any issue related to the investigation); Tenn. Code

Ann. § 2-12-209(c) (describing the process that applies when a county election commission files a

petition with the Coordinator of Elections concerning the county legislative body’s failure to appropriate

funds for the county election commission at a level comparable to previous years).

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explicitly conferred any quasi-judicial authority on a county election commission to

determine a candidate’s satisfaction of constitutional residency requirements. 7 This

Court should apply the well-established rule of statutory construction and presume that

the General Assembly acted intentionally when it explicitly conferred quasi-judicial

authority on county election commissions to determine voter registration appeals and

purposefully chose not to confer such authority on a county election commission to

determine a candidate’s satisfaction of constitutional residency requirements when it

failed to enact a statute doing so. See In re Kaliyah S., 455 S.W.3d at 554.

By judicially clothing county election commissions with such authority in the

absence of a statute, the majority’s decision gives rise to many practical problems. For

example, county election commissions have no power to compel witnesses to testify, no

obligation to place persons who speak under oath, no obligation to permit interested

parties to engage in discovery, no power to compel discovery¸ no procedural framework

for quasi-judicial hearings, including no defined standard of proof, no defined evidentiary

rules, no guidance on whether such a decision must be reduced to writing or may be

given orally, and no guidance on creating a record. Additionally, where, as here, a person

is seeking an office that includes more than one county, it is not clear whether each

county election commission within the district has implicit authority to determine the

candidate’s satisfaction of constitutional residency requirements or only the candidate’s

county of residence. Certainly no statute addresses this issue. Given the specific

guidance the General Assembly has provided elsewhere throughout the election code, the

majority’s decision creating these uncertainties is inconsistent with the overall statutory

scheme.

The majority’s decision allowing a county election commission to determine this

issue is also incongruent with another statute that evinces the General Assembly’s intent

for courts, not county election commissions, to determine whether a candidate has

satisfied constitutional residency requirements. See Tenn. Code Ann. § 2-5-101(g)(1)(E)

(2014) (describing the process for replacing a candidate who “[i]s declared ineligible or

disqualified by a court or disqualified by the political party executive committee under §

2-5-204” after the qualifying deadline (emphasis added)); see also Comer v. Ashe, 514

S.W.2d 730, 736 (Tenn. 1974) (“We digress to point out that Tennessee has no statute

precisely prohibiting the candidacy of an ineligible or disqualified candidate, however,

implicit in our law is the right of the courts to make such determination on a case by case

7

To be sure, county election commissions have ministerial authority to determine whether a

candidate has met statutory qualification requirements, such as submission of a nominating petition in the

proper form, Tenn. Code Ann. § 2-5-102, or filing a nominating petition by the statutorily prescribed

deadline, id. § 2-5-101, or listing the proper licenses needed for particular offices on the nominating

petition, id. § 2-5-106. These ministerial duties are easily accomplished without the exercise of quasi-

judicial authority, which no statute confers upon county election commissions.

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basis and under appropriate circumstances.” (emphasis added)). The majority disagrees

that section 2-5-101(g)(1)(E) evinces the General Assemblyʼs intent to vest courts, rather

than election commissions, with the authority to determine a candidateʼs residency

qualifications, noting that the statute does not specify the body that must declare a

candidate ineligible. But this is precisely my point! Had the General Assembly intended

to vest county election commissions with the authority to make a ruling on a candidateʼs

qualifications or eligibility, it would not have limited its description of the process that is

to be used for replacing disqualified or ineligible candidates to candidates declared

“ineligible or disqualified by a court or disqualified by the political party executive

committee).ˮ Tenn. Code Ann. § 2-5-101(g)(1)(E) (emphasis added).

Indeed, the General Assembly’s decision not to grant such quasi-judicial authority

to county election commissions is entirely consistent with a century of precedent from

this Court holding that the authority of county election commissions is ministerial only.

City of Memphis v. Shelby Cnty. Election Comm’n, 146 S.W.3d 531, 535 (Tenn. 2004)

(“[A]s ministerial officers, the [County Election] Commission and the [State Election]

Coordinator have limited discretion.”); id. at 539 n.7 (describing the Shelby County

Election Commission as “a non-judicial, ministerial body”); Shelby Cnty. Election

Comm’n v. Turner, 755 S.W.2d 774, 776 (Tenn. 1988) (“[T]he Election Commission has

only ministerial duties.”); Peeler v. State ex rel. Beasley, 231 S.W.2d 321, 323 (Tenn.

1950) (“Except in so far as some discretion is reposed in the commission to reconcile, if

it can, inconsistencies or contradictions appearing on the face of the returns, the duties of

this commission are entirely ministerial.”); Curtis v. State ex rel. Moreland, 43 S.W.2d

391, 393 (Tenn. 1931) (“It is not controverted but that the duties of the election

commissioners, as a canvassing board, are ministerial in character, and as such subject to

the writ of mandamus.”); Taylor v. Carr, 141 S.W. 745, 750 (Tenn. 1911) (“The duties of

the commissioners of election are only ministerial.”). Because county election

commissions are creatures of statute, the General Assembly clearly has the prerogative to

make the choice it has and to withhold from them the authority to convene quasi-judicial

hearings and make determinations about a candidateʼs satisfaction of residency

requirements.

Moreover, the General Assembly’s decision to withhold such quasi-judicial

authority from county election commissions is consistent with the entire statutory

scheme. County election commissions are partisan by statutory design, and their

members are appointed by another body that is partisan by statutory design—the state

election commission. Tenn. Code Ann. §§ 2-12-101, -103 (2014). Three members of

each county election commission are appointed by the members of the majority party on

the state election commission, while two members of each county election commission

are appointed by the minority party on the state election commission. Id. § 2-12-103(b).

Persons appointed to a county election commission must be registered voters who have

been residents of Tennessee for five years and residents of the county for which they are

appointed for two years. Id. § 2-12-102(a)(1). Legal knowledge or training is not

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required for appointment to county election commissions. Commissioners serve two-

year terms, until their successors are appointed and qualified. Id. § 2-12-101(a). The

state election commission has the authority to remove a commissioner who becomes

unqualified and discipline or remove a commissioner for cause. Id. § 2-12-101(b).

Given the partisan nature of county election commissions, the brief terms commissioners

serve, the lack of any requirement for legal knowledge or training, and the ability of the

state election commission to discipline members of county election commissions, the

General Assembly’s decision not to imbue county election commissions with quasi-

judicial decision making authority about a candidate’s satisfaction of constitutional

residency requirements is entirely reasonable and is, in fact, a wise policy choice.

I do not question the General Assemblyʼs right to make a policy choice. My

conclusion that county election commissions do not have such authority is grounded on

the utter lack of statutory authority conferring such authority on them, and on the

potential conflicts that may result from the majority's decision judicially granting such

authority.

To support its holding that county election commissions are implicitly imbued

with such authority, the majority relies on a statute that requires the Tennessee

Coordinator of Elections to “[e]nsure that all election commissions within the state shall

prohibit any person from becoming qualified to have such person’s name placed on any

ballot wherein such person is seeking to be nominated or elected to an office for which

such person is ineligible.” Tenn. Code Ann. § 2-11-202(a)(12). The majority’s reliance

is misplaced. This statute is a mandate to the Coordinator of Elections, not to county

election commissions. As such, this statute cannot serve as a proper basis for conferring

implicit authority on county election commissions. As already noted, the Election

Commission has “only those powers expressly granted by statute and those powers

required by necessary implication to enable [it] to fulfill [its] statutory mandate.” Med.

Bird Black Bear White Eagle, 63 S.W.3d at 768 (emphasis added). Because this statute

is not a mandate to county election commissions, it cannot be a proper basis for implicit

authority.

It is true, as the majority points out, that county election commissions are charged

with printing ballots “on which shall be only the names of candidates who have qualified

and who are to be voted on at the polling place in which the ballots are to be used.”

Tenn. Code Ann. § 2-5-202 (2014). But this statute cannot be read in isolation. In the

context of the election statutes, “qualified,” in section 2-5-202, simply refers to a

candidate who has filed a nominating petition that meets the statutory requirements and

deadlines. See id. § 2-5-101(a) (stating that “[c]andidates shall qualify by filing all

nominating petitions . . . by the deadlines set out in the schedule in this section”

(emphasis added)); id. § 2-5-102 (prescribing the form and requirements for nominating

petitions). Moreover, even assuming the term “qualified” in section 2-5-202 is not

limited to the context in which it appears, where doubts exist about a candidate’s

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satisfaction of qualification requirements, county election commissions may file a

declaratory judgment action and ask a court to decide. See Jordan v. Knox Cty., 213

S.W.3d 751, 765 (Tenn. 2007) (stating that the Knox County Election Commission had

standing to seek a declaratory judgment from the trial court as to the eligibility of the

individuals who had submitted qualifying petitions for re-election). Nothing in this

statute authorizes or implicitly requires county election commissions to convene quasi-

judicial hearings to make this determination. Contrary to the majorityʼs assertion,

reading statutes in context is not unusual but is one of the rules courts ordinarily apply

when engaged in statutory construction.

Furthermore, another statute requires county election commissions to submit

sample ballots to the Coordinator of Elections for approval. Id. § 2-5-206(c) (2014)

(requiring county election commissions to “prepare a sample ballot of all candidates and

mail this sample ballot to the coordinator of elections for approval”). “No ballot shall be

printed or funds expended” for printing ballots until the Coordinator of Elections

approves or disapproves a sample ballot, which must occur “within ten (10) days of the

[Coordinator of Elections’] receipt of the sample ballot.” Id. Candidates, candidate

representatives, and other parties with standing have the right to “apply to the chancery

court in the county wherein the allegedly defective ballot may be used, for any

appropriate relief” under the election code or the rules of civil procedure. Id. § 2-5-

206(d). Unlike the majority, I am fully confident in the ability of courts to expedite

lawsuits related to elections and issue any other appropriate and necessary orders to

ensure that elections are not disrupted. Considered in context, these statutes impose

duties and responsibilities on the Coordinator of Elections and cannot properly serve as

the basis for clothing county election commissions with quasi-judicial powers by

implication.8

For all these reasons, I would hold that the Election Commission lacked authority

to convene a quasi-judicial hearing to determine Mr. Pemberton’s satisfaction of

constitutional residency requirements.

8

The statute on which the majority relies, Tenn. Code Ann. § 2-11-202(a)(12), actually addresses

the Coordinator of Elections’ responsibility to ensure that county election commissions not allow persons

ineligible for office to become qualified for placement on the ballot. A person may be qualified for an

office, having satisfied residency, age, and other constitutional requirements, but nevertheless be

ineligible for the office for another reason. See, e.g., Tenn. Code Ann. 8-18-101(1)-(4) (2016)

(enumerating matters that render a person ineligible to hold office); Id. § 2-5-101(f) (describing

circumstances where it is “unlawful” for candidates to qualify). But even if this statute concerns

qualifications rather than ineligibility, it is a mandate to the Coordinator of Elections, and as such, cannot

serve as a basis for conferring authority by implication on county election commissions.

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B. Review by Petition for Writ of Certiorari was not Available

Even assuming, for argument’s sake, that the Election Commission has implicit

authority to convene a quasi-judicial hearing to determine a candidate’s satisfaction of

constitutional residency requirements, however, the majority errs by concluding that the

Election Commission did so here and that its decision was subject to judicial review by

way of a petition for writ of certiorari.9

Nothing about the public hearing the Election Commission held resembled a

quasi-judicial hearing. The Election Commission did not receive testimony from

witnesses who were placed under oath and were subject to cross-examination. Rather, it

allotted time for oral presentations from a lawyer representing a citizen and a candidate.

Only members of the Election Commission, the Roane County Administrator of

Elections, and the Coordinator of Elections were permitted to ask questions. The

Election Commission accepted and considered unauthenticated documents Mr. Hall and

Mr. Pemberton presented before the hearing, but they had no opportunity to engage in

discovery, nor did they have any opportunity during the public hearing to counter or

impeach these documents. Neither Mr. Hall nor Mr. Pemberton had the right to control

the presentation of information to the Election Commission. Rather, the Election

Commission permitted anyone who attended the public hearing to make a three-minute

oral presentation, but again, none of these speakers was placed under oath or subject to

cross-examination.

Furthermore, the public hearing lacked the appearance of impartiality essential to

judicial and quasi-judicial proceedings. During the hearing, members of the Election

Commission referred to Mr. Pemberton by his first name, and at least one member of the

Election Commission disclosed his friendship with Mr. Pemberton. The Election

Commission announced rules at the beginning of the hearing but did not abide by those

rules strictly, allowing Mr. Pemberton’s wife to speak twice, despite the three-minute

limitation, and allowing another secondary speaker who supported Mr. Pemberton to

make comments about the costs of electricity in an effort to bolster Mr. Pemberton’s

explanation of the utility bills Mr. Pemberton had submitted before the hearing. After

this secondary speaker spoke, the Chair of the Election Commission reminded the

secondary speakers to limit their “remarks to residency,” and remarked, “I let [the

previous speaker] get away with it, and I’ve known him a long time.” These comments

and the manner in which this hearing was conducted call into question the impartiality of

the Election Commission. Impartiality is the bedrock principle of the judicial system,

9

To be clear, I view this hearing as entirely unauthorized, but in the interest of responding to the

majorityʼs analysis, I have addressed why, even if it is assumed the Election Commission had authority to

convene a quasi-judicial hearing, the hearing in this case fails entirely to satisfy even the minimal

requirements of due process, such as an impartial adjudicator and notice and opportunity to be heard.

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and any hearing purporting to be quasi-judicial must include an impartial decision maker.

See Moncier v. Bd. of Profʼl. Responsibility, 406 S.W.3d 139, 161 (Tenn. 2013) (“A

basic requirement of due process is a fair trial before a fair tribunal, and this principle

applies to administrative adjudicators as well as to courts.ˮ); Smith v. State, 357 S.W.3d

322, 342 (Tenn. 2011) (“The principles of impartiality, disinterestedness and fairness are

fundamental concepts in our jurisprudence.ˮ (internal quotation marks omitted)).

The Election Commission also did not issue a judgment or order after the public

hearing. No authority need be cited because no one contends that the Election

Commission entered a judgment or order. Rather, the Election Commission simply voted

to place Mr. Pemberton’s name on the ballot and certified the ballot as final on the same

day the hearing occurred. The Chair of the Election Commission indicated that the

decision would be included in the minutes and that the documents submitted on the issue

and a letter from the Coordinator of Elections would be appended to the minutes. The

minutes are not included in the record on appeal, nor does the record indicate when, or if,

those minutes were adopted. Additionally, nothing in the record indicates that Mr. Hall

was advised of any right to appeal the determination, and indeed, when he attempted to

obtain judicial review, his appeal was dismissed for lack of standing and because he was

not an aggrieved party. Finally, nothing in the record indicates that Mr. McFarland was

advised that he could seek judicial review of the Election Commission’s determination.

The majority concludes that the Election Commission was not obliged to advise Mr.

McFarland of his legal rights with respect to this decision, noting that Mr. McFarland is

an attorney and served as county attorney at the time. But, again, the majority ignores the

foundational legal principle that parties in judicial or quasi-judicial proceedings are

entitled to minimal due process, and courts universally recognize that minimal due

process consists of notice and an opportunity to be heard. Moncier, 406 S.W.3d at 153

(“Two of the ʻessential requirements of due process . . . are notice and an opportunity to

respond.ʼˮ (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985));

Cooper v. Williamson Cnty. Bd. of Educ., 803 S.W.2d 200, 202 (Tenn. 1990) (“It is

axiomatic that due process requires the opportunity of the party charged to be heard at a

meaningful time and in a meaningful manner, before an impartial tribunal.ˮ). Mr.

McFarland did not forfeit these minimal due process rights by becoming a lawyer.

Given all these circumstances, I have no idea how anyone, particularly someone

who did not participate in the hearing, could have discerned that the Election

Commission’s public hearing was a quasi-judicial hearing, and that judicial review of the

Election Commission’s determination could be obtained by filing a petition for writ of

certiorari, despite the fact that no order or judgment had been entered. Indeed, the statute

governing judicial review by way of a petition for writ of certiorari expressly presupposes

that the board or commission decision under review will be reflected in a final order or

judgment. Again, the statute provides:

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Anyone who may be aggrieved by any final order or judgment of

any board or commission functioning under the laws of this state may have

the order or judgment reviewed by the courts, where not otherwise

specifically provided, in the manner provided by this chapter.

Tenn. Code Ann. § 27-9-101 (emphasis added). Indeed, the sixty days for seeking review

by way of a petition for writ of certiorari actually runs from the date of “entry of the order

or judgment.” Id. § 27-9-102. Since the Election Commission did not enter an order or

judgment that triggered the running of the sixty-day period, the majority’s determination

that Mr. McFarland’s lawsuit is untimely is inexplicable.

Therefore, even if it has implicit authority to do so, I do not agree that the Election

Commission actually convened a quasi-judicial hearing or produced an order or judgment

from which Mr. McFarland could have obtained judicial review by way of a petition for

writ of certiorari.10

C. Election Contest Lawsuit Remains Available

Finally, even accepting for argument’s sake that the Election Commission had

authority to convene and did convene a quasi-judicial hearing and that Mr. McFarland

could have sought review of the Election Commission’s determination by way of a

petition for writ of certiorari, the majority still errs by depriving Mr. McFarland of his

separate and explicit statutory right to bring an election contest lawsuit. The statutes

expressly affording candidates the right to bring an election contest lawsuit do not

condition this right upon the county election commission not having decided the issue

before the election. Rather, Tennessee Code Annotated section 2-17-101(b) provides:

“The incumbent office holder and any candidate for the office may contest the outcome

of an election for the office.” Another statute plainly identifies challenges to the

constitutional qualifications of the winning candidate as a proper basis for an election

contest action and requires courts to declare the election void when an election contest

succeeds on that basis. See Tenn. Code Ann. § 2-17-113 (2014) (“If the person whose

election is contested is found to have received the highest number of legal votes, but the

election is declared null by reason of constitutional disqualifications on that person’s part

or for other causes, the election shall be declared void.” (emphasis added)). No provision

of this comprehensive statutory scheme conditions the right to file an election contest

upon the county election commission not having previously determined the issue.

10

If the Election Commission had decided the issue the other way, then logically, under the

majority’s holding, Mr. Pemberton, too, would have been limited to seeking review of the Election

Commission’s determination by way of a petition for writ of certiorari. This would also represent a

departure from established Tennessee law, which permits a candidate to file a lawsuit in chancery court to

compel an election commission to place the candidate’s name on the ballot. See, e.g., State ex rel.

Sonnenburg v. Gaia, 717 S.W.2d 883 (Tenn. 1986).

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Additionally, more than thirty years ago this Court confirmed that a losing

candidate has a right to contest the election based on a winning candidate’s lack of

constitutional qualifications, even if other avenues for challenging the candidate’s lack of

qualifications are available. Hatcher v. Bell, 521 S.W.2d 799, 803 (Tenn. 1974) (“We

hold, therefore, that an election contest is a proper proceeding to test the validity of an

election on the charge that the candidate receiving the highest number of votes cast in the

election has not complied with the residence requirement set forth in the Constitution and

was ineligible on the day of the election to hold the office; and that the appellee, being a

candidate in the election, is a proper party to institute the proceeding.”). The Hatcher

Court rejected the argument that a quo warranto action was the exclusive means of

challenging a successful candidate’s qualification, stating:

Appellant has cited us to several cases where this court has approved the

bringing of a quo warranto action to challenge the eligibility of a successful

candidate to hold the office to which he was elected. We have no quarrel

with these decisions. However, there is no basis in reason why the same

circumstance—that is, the constitutional disqualification of the candidate

receiving the highest number of votes in an election—can not be the

predicate of an election contest as well as a quo warranto proceeding,

depending on the party filing, the ultimate purpose of the proceeding, and

the time of filing. The circumstance, if proven, would be determinative of

the validity of the election, which is the target of an election contest. It also

would be determinative of the right of the successful candidate to hold the

office to which he is elected, the target of a quo warranto proceeding. The

election contest statute gives to the unsuccessful candidate the right to

contest the validity of the election by suit filed within ten days of the

election, without limitation to any specific ground or grounds of contest.

We are not inclined to restrict judicially the grounds of contest to eliminate

therefrom a challenge to the validity of an election predicated on the

constitutional disqualification of the successful candidate at the time of

election. To do so would leave the unsuccessful candidate without any

effective remedy by which he might challenge the validity of the election.

Hatcher, 521 S.W.2d at 802-03 (citations omitted and emphasis added). The Hatcher

Court’s rationale applies with even greater force here. “[T]here is no basis in reason why

the same circumstance—that is, the constitutional disqualification of the candidate

receiving the highest number of votes in an election—cannot be the predicate of an

election contest as well as a [quasi-judicial hearing before the Election Commission].”

Id. No statute requires candidates to seek a pre-election determination of an opponent’s

satisfaction of constitutional residency requirements from a county election commission.

No statute provides that if a citizen seeks such a determination, any candidate who

disagrees with the determination must seek judicial review of it by way of a petition for

writ of certiorari. No statute provides that any candidate who does not seek judicial

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review of the county election commission’s determination of a citizen’s complaint will be

precluded from bringing an election contest action raising the same issue. Even though

the General Assembly has chosen not to enact these statutes restricting a candidate’s right

to bring an election contest, the majority’s decision writes these restrictions into

Tennessee law, and in doing so, the majority has implicitly overruled Hatcher. The

majority denies that its decision amounts to an overruling of Hatcher and attempts to

distinguish Hatcher on the facts. But the Courtʼs holding in Hatcher had nothing at all to

do with the facts of the case and everything to do with the language of the statute. The

statutory language then and now clearly and unambiguously grants unsuccessful

candidates the unlimited right to bring an election contest action challenging the

successful candidateʼs satisfaction of constitutional residency requirements. This right is

not conditioned upon a showing that an election commission has not already considered

and decided the issue.

In the face of this clear and unambiguous language, I cannot join the majority in

judicially amending statutes to restrict a candidate’s right to bring an election contest

when the General Assembly has chosen not to adopt these restrictions in the thirty years

since Hatcher. Statutes expressly provide Mr. McFarland with the right to bring this

election contest lawsuit after the election. Providing candidates with this post-election

option makes sense as a practical matter. A candidate may raise the residency issue

during the election, as Mr. McFarland did here, but litigating in court during the middle

of campaigning is difficult for all parties. If the candidate wins the election, expending

resources on a challenge to his opponent’s satisfaction of residency requirements will be

unnecessary. Waiting until after the election may also lessen the disruptive effect of the

lawsuit because the General Assembly has provided specific procedures and an expedited

schedule for litigating and resolving election contest lawsuits and has included strict and

short deadlines for filing the complaint, for holding the trial, and for rendering the

decision. See Tenn. Code Ann. § 2-17-105 through -110. Indeed, had this lawsuit

proceeded according to the schedule statutorily provided for election contests, as it

should have done, it would have been resolved long ago on the merits.11

Therefore, although I strongly disagree with the majority’s conclusions regarding

the Election Commission’s implicit authority, even if the majority is correct on those

points, those holdings still provide no justification for the majority’s decision to deprive

Mr. McFarland of his separate and express statutory right to bring an election contest

lawsuit challenging Mr. Pemberton’s satisfaction of constitutional residency

11

I have no idea how this case would be decided on the merits were Mr. McFarland’s election

contest lawsuit allowed to proceed, and I am not at all suggesting that the outcome would be different. I

also am not unaware of or unsympathetic to the questions and problems that could result were Mr.

McFarland’s lawsuit ultimately successful on the merits. Nevertheless, my role, and the role of this

Court, is to interpret, not rewrite, the statutes the General Assembly has enacted. In my opinion,

Tennessee statutes afford Mr. McFarland the right to bring this election contest lawsuit.

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requirements. Until and unless the General Assembly enacts a statute declaring that a

county election commission’s determination of that issue supersedes a candidate’s right

to file an election contest and limits the candidate to seeking review of the election

commission’s determination by a petition for writ of certiorari, I am unwilling to read

those restrictions into the election contest statutes. The majority’s decision to do so is

inconsistent with the express language of the election contest statutes, with this Court’s

holding in Hatcher, and with this Court’s obligation to avoid interpreting statutes in a

manner that expands or restricts their plain language.

IV. Conclusion

For all these reasons, I dissent from the majority’s decision. I would reverse the

decisions of the courts below and remand for further proceedings in accordance with the

expedited schedule provided in the election contest statutes.

I am authorized to state that Justice Lee concurs in this dissent.

CORNELIA A. CLARK, JUSTICE

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