George Grant v. Elaine Anderson, Clerk Of Williamson County

05/22/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 8, 2017 Session

GEORGE GRANT ET AL. v. ELAINE ANDERSON, CLERK OF

WILLIAMSON COUNTY ET AL.

Appeal from the Chancery Court for Williamson County

No. 44859 Joseph Woodruff, Chancellor

___________________________________

No. M2016-01867-COA-R3-CV

___________________________________

Plaintiffs filed suit seeking declaratory relief to determine the continuing validity of laws

relating to the issuance of marriage licenses and to determine whether the issuance of

marriage licenses violates the state constitution. Plaintiffs also asked the trial court to

enjoin the issuance of all marriage licenses in Williamson County, Tennessee. Upon the

county clerk’s motion to dismiss, the trial court concluded, among other things, that the

plaintiffs lacked standing. We affirm the dismissal of the complaint.

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

as Modified and Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which RICHARD H.

DINKINS and ARNOLD B. GOLDIN, JJ., joined.

David E. Fowler, Franklin, Tennessee, for the appellants, George Grant, Lyndon Allen,

Tim McCorkle, Larry Tomczak, and Deborah Deaver.

Lisa M. Carson and Lee Ann Thompson, Franklin, Tennessee, for the appellee, Elaine

Anderson, Clerk of Williamson County, Tennessee.

OPINION

I.

On January 21, 2016, plaintiffs George Grant, Larry Tomczak, Lyndon Allen, Tim

McCorkle, and Deborah Deaver filed a complaint for declaratory judgment in the

Chancery Court for Williamson County. Two months later, the plaintiffs amended their

complaint. The amended complaint for declaratory judgment identified plaintiffs Grant

and Allen as “ministers . . . having the care of souls” and, as such, authorized by state law

to “solemnize the rite of matrimony.” See Tenn. Code Ann. § 36-3-301(a)(1) (2017).

The complaint identified plaintiffs Tomczak, McCorkle, and Deaver as “residents and

taxpayers of Williamson County, Tennessee . . . [who were] registered to vote in

Tennessee,” although Mr. Tomczak was also described as a minister.

In an introductory paragraph, the plaintiffs concisely stated the declaratory relief

requested. The plaintiffs sought “a declaration that those provisions of the Tennessee law

relative to the licensing of marriages are no longer valid and enforceable” since the

United States Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

The plaintiffs also sought a declaration that “the continued issuance of marriage licenses”

following the Obergefell decision violates their rights under the Tennessee Constitution.

The complaint named as defendants Elaine Anderson, County Clerk for Williamson

County, and Attorney General and Reporter Herbert H. Slatery III.

Understanding the issues raised by the plaintiffs’ case requires an appreciation of

the issues in Obergefell and the Tennessee case underlying that decision. Obergefell

decided cases arising from four states that “define[d] marriage as a union between one

man and one woman.” Id. at 2593. The Court considered two issues. First, “whether the

Fourteenth Amendment requires a State to license a marriage between two people of the

same sex.” Id. And second, “whether the Fourteenth Amendment requires a State to

recognize a same-sex marriage licensed and performed in a State which does grant that

right.” Id.

The Tennessee case, Tanco v. Haslam, raised the latter of the two issues. Id. In

Tanco, same-sex couples who lived and were legally married in other states before

moving to Tennessee challenged the constitutionality of article XI, section 18, of the

Tennessee Constitution1 and Tennessee Code Annotated § 36-3-113.2 7 F. Supp. 3d 759,

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Article XI, section 18, of the Tennessee Constitution, which was adopted and ratified in 2006,

provides as follows:

The historical institution and legal contract solemnizing the relationship of one (1) man

and one (1) woman shall be the only legally recognized marital contract in this state.

Any policy or law or judicial interpretation, purporting to define marriage as anything

other than the historical institution and legal contract between one (1) man and one (1)

woman, is contrary to the public policy of this state and shall be void and unenforceable

in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry

and if such marriage is prohibited in this state by the provisions of this section, then the

marriage shall be void and unenforceable in this state.

TENN. CONST. art. XI, § 18.

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The statute at issue in Tanco provides as follows:

2

762 (M.D. Tenn.), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d

sub nom. Obergefell, 135 S. Ct. 2584. Both the constitutional provision and the statute

declared the public policy of this State to be the legal recognition of a marital contract

between one man and one woman only and that any other forms of marriage were “void

and unenforceable” in the State. TENN. CONST. art. XI, § 18; Tenn. Code Ann. § 36-3-

113 (2017).

In Obergefell, the Supreme Court concluded “that the right to marry is a

fundamental right inherent in the liberty of the person, and under the Due Process and

Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not

be deprived of that right and that liberty.” Obergefell, 135 S. Ct. at 2604. So the Court

held that “the State laws challenged . . . in these cases are now . . . invalid to the extent

they exclude same-sex couples from civil marriage on the same terms and conditions as

opposite-sex couples.” Id. at 2605. The Court further held “that there is no lawful basis

for a State to refuse to recognize a lawful same-sex marriage performed in another State

on the ground of its same-sex character.” Id. at 2608.

Here, the plaintiffs seek a declaration that, because of the holdings in Obergefell,

Tennessee Code Annotated § 36-3-103(a) and (c)(1) and § 36-3-104 are invalid and

unenforceable. Section 36-3-103(a) requires parties desiring to marry to first present to

the minister or officer who will solemnize the marriage “a license under the hand of a

county clerk in this state, directed to such minister or officer, authorizing the

solemnization of a marriage between the parties.” Tenn. Code Ann. § 36-3-103(a)

(2017). Subsection (c)(1) of that same section authorizes and directs the county clerk to

(a) Tennessee’s marriage licensing laws reinforce, carry forward, and make

explicit the long-standing public policy of this state to recognize the family as essential to

social and economic order and the common good and as the fundamental building block

of our society. To that end, it is further the public policy of this state that the historical

institution and legal contract solemnizing the relationship of one (1) man and one (1)

woman shall be the only legally recognized marital contract in this state in order to

provide the unique and exclusive rights and privileges to marriage.

(b) The legal union in matrimony of only one (1) man and one (1) woman shall

be the only recognized marriage in this state.

(c) Any policy, law or judicial interpretation that purports to define marriage as

anything other than the historical institution and legal contract between one (1) man and

one (1) woman is contrary to the public policy of Tennessee.

(d) If another state or foreign jurisdiction issues a license for persons to marry,

which marriages are prohibited in this state, any such marriage shall be void and

unenforceable in this state.

Tenn. Code Ann. § 36-3-113 (2017).

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take certain actions following the marriage and receipt of the license executed by the

officiant:

The county clerk issuing a marriage license is hereby authorized to record

and certify any license used to solemnize a marriage that is properly signed

by the officiant when such license is returned to the issuing county clerk.

The issuing county clerk shall forward the record to the office of vital

records to be filed and registered with such office. If a license issued by a

county clerk in Tennessee is used to solemnize a marriage outside

Tennessee, such marriage and parties, their property and their children shall

have the same status as if the marriage were solemnized in this state. A

county clerk is prohibited from issuing a license for a marriage that is

prohibited in this state.

Id. § 36-3-103(c)(1). Section 36-3-104 details the requirements for a marriage license

application. Among other things, the application must state “the names, ages, addresses

and social security numbers of both the proposed male and female contracting parties.”

Id. § 36-3-104(a)(1) (2017). The section also prohibits a county clerk or deputy clerk

from issuing a marriage license until a written application containing all the required

information is submitted. Id.

Plaintiffs also claim that, post-Obergefell, certain criminal penalties no longer

apply. Specifically, plaintiffs point to the penalties that result from an officiant’s failure

to return a marriage license to the county clerk or from an officiant solemnizing a

marriage between parties not capable of marriage. See id. §§ 36-3-303, -305 (2017).

Plaintiffs acknowledge that neither Tennessee Code Annotated § 36-3-103 nor

§ 36-3-104 were at issue in Tanco. And plaintiffs further acknowledge “that Obergefell

never purported to ‘interpret’ the [Tennessee] license laws.” Still, plaintiffs argue that

the holdings in Obergefell serve to either invalidate Tennessee’s marriage licensing laws

or create an uncertainty, namely “how the right of same-sex couples to marry . . . is to be

effectuated.”

In response to the amended complaint for declaratory judgment, the court clerk,

defendant Anderson, moved to dismiss the complaint. As grounds, she cited Rule

12.02(1) and (6) of the Tennessee Rules of Civil Procedure, “lack of jurisdiction over the

subject matter” and “failure to state a claim upon which relief can be granted.” See Tenn.

R. Civ. P. 12.02. Although she raised the issue of the court’s subject matter jurisdiction,

her motion instead focused on justiciability. According to Ms. Anderson, plaintiffs

“failed to present a justiciable case or controversy for the following reasons: (1) Plaintiffs

cannot establish standing . . . ; (2) Minister Plaintiffs’ claims are not ripe for adjudication;

and (3) [she] d[id] not have a real and adverse interest sufficient to establish a legal

controversy.”

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II.

The chancery court dismissed the action. The court first held that the plaintiffs

lacked standing, concluding that they failed to “aver a special interest or a special injury

not common to the public generally.” In reaching its conclusion, the court examined the

claims of the plaintiffs not only as a whole but also by category, independently analyzing

the allegations of the “Minister Plaintiffs” and the “Citizen Plaintiffs.”

As an independent basis for dismissal of the claims of the Minister Plaintiffs, the

court also determined the ministers’ claims were not ripe. In its view, the Minister

Plaintiffs were “not faced with a choice of immediately complying with a burdensome

law or risking serious criminal and civil penalties.” And the court saw “no need for

immediate compliance or immediate action of any sort since Minister Plaintiffs [we]re

not being compelled to solemnize any upcoming marriages, and may never be asked to

solemnize a state-issued license again.”

The court also agreed with Ms. Anderson’s contention that she did not have an

adverse interest to the plaintiffs. Although state law prohibits county clerks “from

issuing a marriage license for a marriage that is prohibited [by the laws of the state],” the

penalty for violation applies only if the violation was “not in good faith.” Tenn. Code

Ann. §§ 36-3-103(c)(1), -111 (2017). As noted by the court, in their response to the

motion to dismiss, plaintiffs acknowledged that Ms. Anderson was issuing licenses to

same-sex couples on the good faith assumption that Obergefell both authorized and

required the issuance of marriage licenses to same-sex couples.

Finally, although the Attorney General did not file a motion to dismiss, the court

determined that dismissal of the entire action was appropriate. The court reasoned that

“Tennessee’s Constitution restricts the cases a court may entertain to those in which the

parties have standing, [and] therefore, without standing, a court has no subject matter

jurisdiction.” From that premise and noting its holding that the plaintiffs lacked standing,

the court concluded it “[wa]s required to dismiss this action against both the Attorney

General as well as Ms. Anderson because this Court does not have subject matter

jurisdiction.”

III.

As an initial matter, we must determine whether the chancery court had subject

matter jurisdiction over the plaintiffs’ claims. See Redwing v. Catholic Bishop for

Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn. 2012) (noting that subject matter

jurisdiction “should be viewed as a threshold inquiry”). Subject matter jurisdiction refers

to a court’s “lawful authority to adjudicate a controversy brought before it.” Northland

Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). A court’s subject matter jurisdiction

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is derived—“either explicitly or by necessary implication”—from the state constitution or

statute. Benson v. Herbst, 240 S.W.3d 235, 239 (Tenn. Ct. App. 2007). Neither the

conduct of the parties nor any agreement of the parties plays a role; “parties cannot

confer subject matter jurisdiction on a trial . . . court by appearance, plea, consent,

silence, or waiver.” Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct.

App. 1999).

The existence of subject matter jurisdiction depends on “the nature of the cause of

action and the relief sought.” Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994). If

subject matter jurisdiction is lacking, the court must dismiss the case. Dishmon, 15

S.W.3d at 480. Whether a court lacks subject matter jurisdiction presents a question of

law, which we review de novo. Chapman v. DaVita, Inc., 380 S.W.3d 710, 712-13

(Tenn. 2012).

Although our supreme court has stated that “[w]hen a statute creates a cause of

action and designates who may bring an action, the issue of standing is interwoven with

that of subject matter jurisdiction and becomes a jurisdictional prerequisite,” Osborn v.

Marr, 127 S.W.3d 737, 740 (Tenn. 2004), that is not the case here. Subject matter

jurisdiction and standing are “two distinct concepts.” SunTrust Bank, Nashville v.

Johnson, 46 S.W.3d 216, 221 (Tenn. Ct. App. 2000). The court’s conclusion that the

plaintiffs lacked standing did not compel the conclusion that it also lacked subject matter

jurisdiction.

We conclude that the chancery court did have subject matter jurisdiction. In this

instance, subject matter jurisdiction is derived from the Tennessee Declaratory Judgments

Act.3 Under the Act, “[c]ourts of record within their respective jurisdictions have the

power to declare rights, status, and other legal relations whether or not further relief is or

could be claimed.” Tenn. Code Ann. § 29-14-102(a) (2012). The chancery court is a

court of record, and the plaintiffs are seeking a declaration of their respective rights. So

we next consider whether the plaintiffs had standing to seek declaratory or injunctive

relief.

IV.

Lack of standing may be raised as a defense under Rule 12.02(6) of the Tennessee

Rules of Civil Procedure. Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976).

A Rule 12.02(6) motion, also known as a motion to dismiss for failure to state a claim

upon which relief can be granted, “challenges only the legal sufficiency of the complaint,

not the strength of the plaintiff’s proof or evidence.” Webb v. Nashville Area Habitat for

Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). Thus, “[t]he resolution of a 12.02(6)

3

The enactment provided that it could “be cited as the Uniform Declaratory Judgments Act.”

1923 Tenn. Pub. Acts 104.

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motion to dismiss is determined by an examination of the pleadings alone.” Id. By filing

a motion to dismiss, the defendant “admits the truth of all of the relevant and material

allegations contained in the complaint, but . . . asserts that the allegations fail to establish

a cause of action.” Leach v. Taylor, 124 S.W.3d 87, 90 (Tenn. 2004); see also Webb, 346

S.W.3d at 426; Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010);

Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn. 2005). When

a complaint is challenged by a Rule 12.02(6) motion, the complaint should not be

dismissed unless it appears that the plaintiff can prove no set of facts in support of his or

her claim that would warrant relief. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999)

(citing Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997)). Making such a determination

is a question of law. Our review of a trial court’s determinations on issues of law is de

novo, with no presumption of correctness. Id. (citing Stein v. Davidson Hotel Co., 945

S.W.2d 714, 716 (Tenn. 1997)).

In contrast to subject matter jurisdiction, standing is a judicially created doctrine

that asks whether a party advancing a claim is “properly situated to prosecute the action.”

Knierim, 542 S.W.2d at 808. Courts “may and properly should refuse to entertain an

action at the instance of one whose rights have not been invaded or infringed.” Mayhew

v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001) (quoting 59 AM. JUR. 2D Parties §

30 (1987)). Standing limitations also restrict judicial power by keeping courts from

deciding “abstract questions of wide public significance even though other governmental

institutions may be more competent to address the questions and even though judicial

intervention may be unnecessary to protect individual rights.” Warth v. Seldin, 422 U.S.

490, 500 (1975).

A standing analysis focuses on the party, rather than the merits of the claim.

Metro. Air Research Testing Auth., Inc. v. Metro. Gov’t of Nashville & Davidson Cty.,

842 S.W.2d 611, 615 (Tenn. Ct. App. 1992). Even so, the standing inquiry “often turns

on the nature and source of the claim asserted.” Id.

Under the Tennessee Declaratory Judgments Act, persons affected by a state

statute have standing to request a declaration of their rights under a statute. In pertinent

part, the Act provides as follows:

[a]ny person . . . whose rights, status, or other legal relations are affected by

a statute . . . may have determined any question of construction or validity

arising under the . . . statute . . . and obtain a declaration of rights, status or

other legal relations thereunder.

Tenn. Code Ann. § 29-14-103 (2012). Still “some real interest must be in dispute.”

Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838 (Tenn. 2008) (citing Goetz v.

Smith, 278 S.W. 417, 418 (Tenn. 1925)). To establish standing under the Act, “the

person seeking a declaratory judgment must allege facts which show he has a real, as

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contrasted with a theoretical, interest in the question to be decided and that he is seeking

to vindicate an existing right under presently existing facts.” Burkett v. Ashley, 535

S.W.2d 332, 333 (Tenn. 1976).

A.

Here, the source of the plaintiffs’ claims is the Supreme Court’s decision in

Obergefell. In their amended complaint for declaratory judgment, the plaintiffs identify

eight controversies that exist due to Obergefell. The first five of the controversies are

premised on the notion that Tennessee statutes relating to marriage license applications,

requiring marriage licenses, and specifying certain duties of the county clerk with respect

to such licenses are invalid and unenforceable. See Tenn. Code Ann. §§ 36-3-103(a), -

103(c)(1), -104.

We can quickly dispel this notion by looking to Obergefell. The Supreme Court

held that “the State laws challenged by Petitioners in these cases are now held invalid to

the extent they exclude same-sex couples from civil marriage on the same terms and

conditions as opposite-sex couples.” Obergefell, 135 S. Ct. at 2605. This holding states

that it applies to “the State laws challenged by Petitioners.” Id. And plaintiffs have

acknowledged that the laws challenged in Obergefell did not include the Tennessee

statutes that the plaintiffs now assert are invalid and unenforceable. So the plaintiffs’

alleged interest is based on a contingency, invalidation of all of Tennessee’s marriage

licensing laws, that may never occur. Even in the context of declaratory judgment

actions, “[i]t is well settled” that our courts decline to answer such questions. Story v.

Walker, 404 S.W.2d 803, 804 (Tenn. 1966); see also 26 C.J.S. Declaratory Judgments

§ 31, Westlaw (database updated Mar. 2018) (“The courts do not issue advisory opinions

or answer hypothetical questions where there is no case or controversy, and this rule does

not change when a declaratory judgment is involved . . . .”).

Perhaps more importantly, to the extent Tennessee statutes other than those

challenged in Tanco v. Haslam are implicated, they are solely implicated “to the extent

they exclude same-sex couples from civil marriage on the same terms and conditions as

opposite-sex couples.” Obergefell, 135 S. Ct. at 2605. To create their first five

controversies, the plaintiffs would have us read the words “to the extent they exclude”

out of the opinion. Even the dissenters in Obergefell would not claim that the decision

wiped away marriage licensing laws.

In his dissent, Chief Justice John Roberts complained that the ruling in Obergefell

“invalidate[d] the marriage laws of more than half the States and orders the

transformation of a social institution that has formed the basis of human society for

millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the

Aztecs.” Id. at 2612 (Roberts, C.J., dissenting). But he still recognized that the Court

was “ordering every State to license . . . same-sex marriage.” Id. at 2611 (emphasis

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added). And he accused the Court of taking a “drastic step,” namely “requiring every

State to license and recognize marriage between same-sex couples.” Id. at 2623-24

(emphasis added).

Justice Clarence Thomas, in his dissent, states “[t]he majority’s decision today

will require States to issue marriage licenses to same-sex couples.” Id. at 2631 (Thomas,

J., dissenting) (emphasis added). And Justice Samuel Alito explains in his dissent that

the use of the term “recognize marriage” is “shorthand for issuing marriage licenses and

conferring those special benefits and obligations provided under state law for married

persons.” Id. at 2640 n.1 (Alito, J., dissenting) (emphasis added). These references to the

issuance of marriage licenses would be out of place had Obergefell, as plaintiffs claim,

invalidated Tennessee’s marriage license laws.

Invalidation of our license laws also would be an unusual step. The Supreme

Court generally favors limited remedies “when confronting a constitutional flaw in a

statute.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006). In

such circumstances, the remedy is informed by three interrelated principles, which take

into account separation of powers and the proper roles of the legislative and judicial

branches. Id. at 329. As the Court explained in Ayotte v. Planned Parenthood of

Northern New England:

[f]irst, we try not to nullify more of a legislature’s work than is necessary,

for we know that “[a] ruling of unconstitutionality frustrates the intent of

the elected representatives of the people.” It is axiomatic that a “statute

may be invalid as applied to one state of facts and yet valid as applied to

another.” Accordingly, the “normal rule” is that “partial, rather than facial,

invalidation is the required course,” such that a “statute may . . . be declared

invalid to the extent that it reaches too far, but otherwise left intact.”

Second, mindful that our constitutional mandate and institutional

competence are limited, we restrain ourselves from “rewrit[ing] state law to

conform it to constitutional requirements” even as we strive to salvage it.

Our ability to devise a judicial remedy that does not entail quintessentially

legislative work often depends on how clearly we have already articulated

the background constitutional rules at issue and how easily we can

articulate the remedy. . . .

Third, the touchstone for any decision about remedy is legislative

intent, for a court cannot “use its remedial powers to circumvent the intent

of the legislature.” After finding an application or portion of a statute

unconstitutional, we must next ask: Would the legislature have preferred

what is left of its statute to no statute at all?

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Id. at 329-30 (citations omitted). In Tennessee, the legislative intent is clear. Our

Legislature has expressed its preference that the invalidity of one portion of a statute

should not affect the remaining portions of the statute. See Tenn. Code Ann. § 1-3-110

(2014).4

B.

The last three of the eight controversies identified in the amended complaint for

declaratory judgment stem from “the issuance of marriage licenses without a statute by

the General Assembly prescribing the duties of the [county clerk].” These alleged

controversies do not arise solely from the mistaken notion that Tennessee’s marriage

license laws were totally invalidated by Obergefell and are now unenforceable.

According to the plaintiffs, if our marriage license laws “remain valid, then Obergefell

failed to tell us how the right of same-sex couples to marry . . . is to be effectuated.”

This, the plaintiffs assert, creates an uncertainty. To address this claimed uncertainty, we

consider the plaintiffs in each of their alleged roles.

1. The Minister Plaintiffs

The Minister Plaintiffs, in their roles as ministers, do not have standing. To the

extent their uncertainty arises from licensing of same-sex marriage, they have no real

interest for purposes of standing. On appeal, the Minister Plaintiffs claimed to have

“alleged that they would continue to solemnize opposite-sex marriages in the future.”

And our review of the amended complaint shows no factual allegation that the Minister

Plaintiffs have or intend to solemnize same-sex marriages.

To the extent their uncertainty arises from opposite-sex marriages, we still

conclude that the Minister Plaintiffs lack standing. Declaratory relief may be granted

with respect to a penal or criminal statute. See Erwin Billiard Parlor v. Buckner, 300

S.W. 565, 566 (Tenn. 1927) (holding that pool room proprietors could seek declaratory

judgment that act declaring the operation of pool and billiard rooms for pay and profit

was unconstitutional); see also W. E. Shipley, Annotation, Validity, Construction, and

Application of Criminal Statutes or Ordinances as Proper Subject for Declaratory

Judgment, 10 A.L.R.3d 727, § 2 (1966) (“[I]t now seems reasonably well settled that in

an otherwise proper case declaratory relief may be granted notwithstanding the fact that

the declaration is as to the validity or construction of a statute having criminal or penal

provisions . . . .”). And the Minister Plaintiffs have challenged the validity of statutes

4

The Legislature has also acted in accord with its preference. Just this year the Legislature

adopted a bill to amend Tennessee’s marriage license laws relative to the minimum age for marriage,

making it unlawful for a county clerk to issue a marriage license when “[e]ither of the contracting parties

is under seventeen (17) years of age.” H.R. 2134, § 3, 110th Gen. Assemb., Reg. Sess. (Tenn. 2018).

How can this be, if as plaintiffs claim, the requirement for the issuance of a marriage license has been

completely invalidated? The answer is that it cannot.

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making it a misdemeanor for an officiant to fail to return a marriage license to the county

clerk and making it a misdemeanor and imposing a fine of $500 for solemnizing a

marriage between parties not capable of marriage. See Tenn. Code Ann. §§ 36-3-303, -

305. But their challenge stems from a hypothetical scenario: that there are “no valid

marriage license[s] by which Minister Plaintiffs are authorized to solemnize th[e]

marriage[s].”

2. The Citizen Plaintiffs

The Citizen Plaintiffs claim that “rights accorded them under the Tennessee

Constitution are being violated by the issuance of marriage licenses after Obergefell.”

Specifically, the Citizen Plaintiffs claim that their rights under article I, sections 5, 8, and

23; article II, section 17; and article VII, section 1, have been violated. We must

determine then whether issuance of marriage licenses by the county clerk after Obergefell

invades or infringes on any of the rights under the cited constitutional provisions. The

claimed constitutional violations or infringements are grouped into three separate

allegations or “controversies.”

First, the Citizen Plaintiffs claim deprivation of their rights under article I, section

5 and 8, of our constitution. Article I, section 5, provides for free and equal elections and

guarantees that “the right of suffrage . . . shall never be denied to any person entitled

thereto, except upon conviction by a jury of some infamous crime, previously ascertained

and declared by law, and judgment thereon by court of competent jurisdiction.” TENN.

CONST. art. I, § 5. Section 8 guarantees “[t]hat no man shall be taken or imprisoned, or

disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner

destroyed or deprived of his life, liberty or property, but by the judgment of his peers or

the law of the land.” Id. art. I, § 8.

The Citizen Plaintiffs contend that “they have been deprived of their right to

‘indirectly vote’ on the laws prescribing the duties of the County Clerk” through their

state representatives and senators. No factual allegations support this claim. On appeal,

the Citizen Plaintiffs claim that the county clerk “has unconstitutionally taken it upon

herself to decide, without the legislative definition of her authority required under the

Tennessee Constitution, what should be done in view of Obergefell.” According to the

Citizen Plaintiffs, the county clerk “essentially rewrote or adjudicated the existing statute

by herself and prescribed to herself a duty not existing in the current statute.”

Even if, in carrying out her responsibilities, the county clerk had rewritten the

marriage license laws or prescribed duties to herself not existing in the marriage license

statutes, the Citizen Plaintiffs did not allege how such actions would invade or infringe

upon their voting rights or deprive them of their life, liberty, or property. None of the

Citizen Plaintiffs alleged that they were denied a marriage license; instead, they complain

of the issuance of marriage license to others.

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Second, the Citizen Plaintiffs claim that the county clerk’s actions violate article

II, section 17, of our constitution. Article II, section 17, as codified in Tennessee Code

Annotated, is entitled “Origin and frame of bills.” The title summarizes succinctly the

section’s purpose. As our supreme court explained,

So far as section 17, article 2, is concerned, if the various provisions of an

act are directed toward a common purpose, and that purpose is expressed in

the title, it would make no difference if the several provisions of the act

involved all powers of the Legislature. This section of the Constitution

regulates the syntax of statutes. It imposes no restriction upon the powers

exerted, nor upon the commingling of such powers, so long as the

provisions of the statute are not incongruous and are germane to the subject

expressed in the caption.

Davis v. Hailey, 227 S.W. 1021, 1022 (Tenn. 1921). The Citizen Plaintiffs contend that,

if the county clerk’s “actions exceed the authority that she legally possesses after

Obergefell, then Citizen Plaintiff’s [sic] constitutional rights under Article II, Section 17

have been violated.”

We disagree. The Citizen Plaintiffs misread article II, section 17. Section 17 has

nothing to do with the duties or responsibilities of the county clerk or the issuance of

marriage licenses; the section has everything to do with the requirements for bills

introduced in the Legislature, which are not at issue here.

Finally, the Citizen Plaintiffs claim their rights under article I, section 23, and

article VII, section 1, have been rendered “meaningless.” Article I, section 23,

guarantees citizens the “right, in a peaceable manner, to assemble together for their

common good, to instruct their representatives, and to apply to those invested with the

powers of government for redress of grievances, or other proper purposes, by address or

remonstrance.” TENN. CONST. art. I, § 23. Article VII, section 1, provides, among other

things, for the election of a county clerk and that the county clerk’s “duties shall be

prescribed by the General Assembly.” Id. art. VII, § 1.

The Citizen Plaintiffs complain that their right to instruct their representatives

would be meaningless if the county clerk is “allowed to continue exercising an authority

and fulfilling a duty that has not been prescribed to her either by the legislature or

‘created’ by a final appellate adjudication of how Obergefell affected Tenn. Code Ann.

[§] 36-3-104(a).” As discussed above, Tennessee Code Annotated § 36-3-104(a)(1)

specifies the requirements for a marriage license application and prohibits a county clerk

from issuing a marriage license until an application meeting the requirement has been

submitted. Tenn. Code Ann. § 36-3-104(a)(1).

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If the county clerk is exercising an authority or fulfilling a duty that has not been

statutorily prescribed for her, we fail to see how that renders meaningless the Citizen

Plaintiffs’ “right . . . to instruct their representatives.” And it is beyond question that our

Legislature retains the constitutional authority to prescribe the duties of the county clerk.

In claiming an injury or harm resulting from the county clerk’s actions, the Citizen

Plaintiffs also seem to ignore that they have a very meaningful say in how the county

clerk fulfills her duties. The Citizen Plaintiffs, assuming they remain qualified voters,

elect a county clerk every four years. TENN. CONST. art. VII, § 1.

Further, even assuming for the sake of argument that their rights under any of the

cited constitutional provisions have been invaded or infringed to a degree, the Citizen

Plaintiffs’ injuries would be shared by the public at large. “Standing . . . may not be

predicated upon an injury to an interest that the plaintiff shares in common with all other

citizens.” Am. Civil Liberties Union of Tenn. v. Darnell, 195 S.W.3d 612, 620 (Tenn.

2006); Mayhew, 46 S.W.3d at 767. Thus, without a particularized injury or harm arising

from the county clerk’s actions, the Citizen Plaintiffs lack standing. See City of

Chattanooga v. Davis, 54 S.W.3d 248, 280 (Tenn. 2001).

In a filing of supplemental authority after oral arguments in this case, the Citizen

Plaintiffs suggest that the Legislature recently relaxed the particularized injury

requirement in these circumstances. Heretofore, “the courts of this state have yet to

recognize a general ‘public rights’ exception to the standing requirement.” Id. The

enactment referenced by the Citizen Plaintiffs added a new section to the chapter of the

Tennessee Code addressing statutory construction. The section, which took effect upon

becoming law, provides as follows: “Notwithstanding any law to the contrary, a cause of

action shall exist under this chapter for any affected person who seeks declaratory or

injunctive relief in any action brought regarding the legality or constitutionality of a

governmental action.” Act of Apr. 2, 2018, ch. 621, 2018 Tenn. Pub. Acts. (codified at

Tenn. Code Ann. § 1-3-121).

When a statute designates who may bring an action, “his or her right of action

arises directly out of the statute, and he or she needs no title under the substantive law to

authorize suit.” Mayhew, 46 S.W.3d at 768-69 (quoting 59 AM. JUR. 2D Parties § 22

(1987)). Our reading of the new statute is that it does not relax the particularized injury

requirement for standing in cases “brought regarding the legality or constitutionality of a

governmental action.” Unlike, for example, the Tennessee Public Meetings Act, which

permits “any citizen of the state” to seek relief, Tenn. Code Ann. § 8-44-106(a) (2016),

the new statute applies to “any affected person.” Act of Apr. 2, 2018, ch. 621, 2018

Tenn. Pub. Acts. (codified at Tenn. Code Ann. § 1-3-121). The language of the new

statute is sufficiently similar to the standing provision of the Tennessee Declaratory

Judgments Act, which grants standing to “[a]ny person . . . whose rights, status, or other

legal relations are affected by a statute.” Tenn. Code Ann. § 29-14-103. As such, we

conclude that the new statute retains a particularized injury requirement.

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V.

In addition to determining that the plaintiffs lacked standing, the chancery court

also determined that the plaintiffs’ claims were not ripe and that the county clerk did not

have an adverse interest to the plaintiffs. To be ripe, “the dispute [must] ha[ve] matured

to the point that it warrants a judicial decision.” B & B Enters. of Wilson Cty., LLC v.

City of Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010). To some extent, the ripeness

doctrine overlaps with the injury requirement for standing. Erwin Chemerinsky, A

Unified Approach to Justiciability, 22 CONN. L. REV. 677, 682 (1990). Beyond the

existence of a controversy with sufficient immediacy and reality to warrant the

declaratory judgment action, there must also be “some one having a real interest in the

question who may oppose the declaration sought.” Miller v. Miller, 261 S.W. 965, 972

(Tenn. 1924); Hatcher v. Chairman, 341 S.W.3d 258, 261 (Tenn. Ct. App. 2009); 26

C.J.S. Declaratory Judgments § 30.

In light of our conclusion that the allegations of the amended complaint for

declaratory judgment did not establish the plaintiffs’ standing and the overlap between

the doctrines of standing and ripeness, we find it unnecessary to address whether the

plaintiffs’ claims were also ripe for judicial determination. We decline to address the

question of whether the county clerk possessed a real interest sufficient to oppose

declaratory relief.

VI.

Although we have determined that the chancery court properly dismissed the

claims of the plaintiffs for lack of standing upon the motion for the county clerk, there

remains one party defendant. The plaintiffs also named the Attorney General of the State

as a party under Tennessee Code Annotated § 29-14-107(a). That statute requires a party

seeking declaratory relief to name as parties “all persons . . . who have or claim any

interest which would be affected by the declaration.” Tenn. Code Ann. § 29-14-107(a)

(2012). But because the plaintiffs were challenging the issuance of marriage licenses by

the county clerk and not necessarily seeking to test the constitutionality of Tennessee’s

marriage license laws, it does not appear that the Attorney General was a necessary party

to this action. See Shelby Cty. Bd. of Comm’rs v. Shelby Cty. Quarterly Court, 392

S.W.2d 935, 940 (Tenn. 1965).

Generally, we confine ourselves only to the issues raised by the parties. Hodge v.

Craig, 382 S.W.3d 325, 334 (Tenn. 2012); Tenn. R. App. P. 13(b). We do so because

party control over issue presentation is one of the defining characteristics of the

American adversarial system. See U.S. v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J.,

concurring). Still courts may sometimes engage in a sua sponte review of issues not

raised by the parties on appeal. See, e.g., Singleton v. Wulff, 428 U.S. 106, 121 (1976);

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Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of Conn., 84 A.3d 840, 855-69

(Conn. 2014); Bell v. Todd, 206 S.W.3d 86, 90-91 (Tenn. Ct. App. 2005); Heatherly v.

Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct. App. 2000). For example,

our courts have considered justiciability issues even when parties have not presented such

issues for review. See, e.g., Hooker v. Haslam, 437 S.W.3d 409, 433 (Tenn. 2014)

(mootness); Osborn, 127 S.W.3d at 740 (standing).

Although the Attorney General did not move for dismissal, we conclude it is

appropriate to also dismiss any claims against the Attorney General based on standing.

See Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn. 1975) (approving but not

encouraging dismissal for failure to state a claim in the absence of a motion to dismiss

under Tennessee Rule of Civil Procedure 12). The standing analysis would be no

different if the Attorney General had also moved to dismiss for failure to state a claim

upon which relief can be granted. And the result would be the same.

VII.

We conclude that the chancery court had subject matter jurisdiction over the

proceeding. But because we conclude that the plaintiffs lacked standing, we affirm the

dismissal of the complaint. The case is remanded for any further proceedings as are

necessary and consistent with this opinion.

_________________________________

W. NEAL MCBRAYER, JUDGE

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