State of Tennessee, ex rel., Bee DeSelm v. Tennessee Peace Officers Standards Commission, Tennessee Attorney General Timothy Hutchison and Knox County Mayor Mike Ragsdale

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 15, 2008 Session

STATE OF TENNESSEE, ex rel. BEE DESELM, et al., v. TENNESSEE
PEACE OFFICERS STANDARDS COMMISSION, et al.

Direct Appeal from the Chancery Court for Davidson County, Part III
No. 07-343-III Hon. Ellen Hobbs Lyle, Chancellor

No. M2007-01855-COA-R3-CV - Filed October 16, 2008

Plaintiffs brought this action against the Tennessee Peace Officers Standards Commission, the
Tennessee Attorney General, Knox County Mayor and Timothy Hutchison seeking declaratory
judgment that Hutchison was disqualified to serve as a deputy sheriff of Knox County. Responding
to a Motion to Dismiss, the Chancellor dismissed the action and, on appeal, we affirm.

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

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which PATRICIA J.
COTTRELL, P.J.M.S., and SHARON G. LEE, J., joined.

Herbert S. Moncier, Knoxville, Tennessee, for Plaintiffs/Appellants.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and
William R. Lundy, Jr., Assistant Attorney General, Nashville, Tennessee, for Appellees, Tennessee
Peace Officers Standards and Training Commission and Tennessee Attorney General.

Mary Ann Stackhouse, Knoxville, Tennessee, for Appellee, Knox County Mayor Mike Ragsdale.

Gary M. Prince and Jeffrey R. Thompson, Knoxville, Tennessee, for Appellee, Timothy Hutchison.
 OPINION

Plaintiffs filed a Complaint against the Tennessee Peace Officers Standards
Commission, Tennessee Attorney General Robert Cooper, Jr., Knox County Mayor Mike Ragsdale,
and Timothy Hutchison, seeking a declaratory judgment that Hutchison was disqualified to be a
Tennessee Certified Law Enforcement Officer and Deputy Sheriff for Knox County, due to his
contempt convictions for making false statements to a court, for dishonest acts, and for participating
in political activity.

Plaintiffs sought a declaratory judgment and mandamus commanding the Tennessee
Peace Officers Standards and Training Commission to revoke Hutchison’s certification as a law
enforcement officer, suspending him from the office of deputy sheriff, a writ of mandamus
commanding Ragsdale not to sign checks to Hutchison, and seeking removal and ouster of
Hutchison.

Plaintiffs alleged that Hutchison was convicted of six counts of criminal contempt
in a case styled Moody v. Hutchison, for making false statements to the court. Further, Jordan v.
Knox County, 2007 WL 92351 (Tenn. 1/12/07), held that Knox County’s Charter Term Limits were
valid and applied to the office of Knox County sheriff, and that after a valid election was held
electing the new sheriff, J. J. Jones, Jones appointed Hutchison to the office of deputy sheriff, when
he did not meet the qualifications because of his criminal convictions. Plaintiffs further alleged that
Hutchison had participated in political activity as a deputy sheriff, in violation of various statutes,
but the Attorney General had issued an opinion finding that convictions for criminal contempt of
court for making false statements to a court were not “offenses relating to dishonesty” for the
purposes of Tenn. Code Ann. §38-8-106(4).

Essentially, plaintiffs sought a declaratory judgment that such convictions did
disqualify Hutchison from being a certified law enforcement officer and deputy sheriff, and sought
to have his certification revoked and remove him from office.

Mayor Ragsdale filed a Motion to Dismiss, asserting that plaintiffs had failed to state
a claim, that venue was improper, that plaintiffs lacked standing, that the lawsuit was barred by the
doctrine of prior cases pending in Knox County, collateral estoppel and res judicata, etc. A similar
motion was filed on Hutchison’s behalf, as well as the POST Commission and the Attorney General.

Plaintiffs then filed a Rule 15.01 Motion to Amend, seeking to amend their Complaint
to state that plaintiffs’ claims were based on deprivation of substantive due process, and to make
clear that no monetary judgment was sought against any defendant other than Hutchison.

The Court issued a Memorandum and Order on May 30, 2007, and found that the
claims against Ragsdale, Hutchison, and the Attorney General had to be dismissed for improper
venue, failure to state a claim, lack of standing, and sovereign immunity. The Court found that

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plaintiffs’ claims against POST were colorable, but that the Court had no jurisdiction until plaintiffs
filed a complaint with POST and exhausted their administrative remedies. The Court found that the
claims against Ragsdale and Hutchison were localized in Knox County, and thus venue was
improper. The Court held that plaintiffs did not have standing to bring an ouster or Little Hatch Act
claim, and that the claims against the Attorney General were barred by sovereign immunity. Finally,
the Court held that it had no jurisdiction to hear a claim against POST until the administrative
remedies had been exhausted, and that the filing of a claim with POST was not barred by res
judicata.

Plaintiffs then filed a Motion to Alter or Amend, seeking to have the Court consider
the claim against POST by virtue of having filed a claim with POST on May 30, 2007 (immediately
after the judgment went down), and also sought to have the dismissal of the claims against POST
reversed because POST had not plead that administrative remedies were not exhausted. The Court
denied the motion on June 4, 2007, and on June 7, 2007, plaintiffs filed a “Supplemental Filing in
Support of T. R. Civ. P. 59.04 Motion to Alter or Amend this Court’s Memorandum Dated May 30,
2007", and attached a claim filed with POST on June 1, 2007. On June 15, 2007, plaintiffs filed a
Motion to Supplement Complaint, to add events that had happened since the filing of the first
Complaint. Plaintiffs then filed a Motion to Renew their earlier Motion to Alter or Amend.

After numerous filings by the parties, the Court issued a Memorandum and Order on
June 28, 2007, and found that plaintiffs’ latest motion had to be denied, because the Court had
already dismissed plaintiffs’ claims, had denied plaintiffs’ subsequent motion to alter or amend, and
thus the lawsuit could not be resurrected. The Court suggested that the plaintiffs could file a new
lawsuit, and plaintiffs had done so, but denied plaintiffs relief in any event.

These issues are presented for review:

1. Does sovereign immunity forbid bringing a declaratory judgment action as
to the validity of an attorney general opinion?

2. Do appellants have standing to bring actions for declaratory judgment and
seek additional relief?

3. Were appellants entitled to Tenn. R. Civ. P. 59.04 relief from the May 30,
2007, Memorandum Opinion pending POST’s administrative actions on
appellants’ complaints?

4. Were appellants entitled to file a supplemental Complaint, seek injunctive
relief, and renew their Tenn. R. Civ. P. 59.04 motion?

5. Was venue as to Hutchison and Ragsdale proper in Davidson County?

Appellants argue that the Trial Court erred in holding that sovereign immunity barred

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their claims for a declaratory judgment action pertaining to an opinion issued by the Attorney
General. Appellants rely on the opinion in Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. 1996),
wherein the Supreme Court ruled that the plaintiffs could bring suit against the State under the
Declaratory Judgment Act challenging the constitutionality of a state statute. In that opinion, the
Court relied upon the express language of the Act, which states that any person “whose rights, status,
or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may
have determined any question of construction or validity arising under” said statute or ordinance.
Id., see also Tenn. Code Ann. §29-14-103.

Campbell is clearly distinguishable from this case, in that attorney general opinions
are neither statutes nor municipal ordinances, nor any of the other types of instruments referred to
in the Declaratory Judgment Act. Attorney general opinions are persuasive in nature, but do not
carry the weight of law. City of Cleveland v. Bradley County, 1999 WL 281086 (Tenn. Ct. App.
Apr. 16, 1999). The other difference is that the appellants’ rights/status were not directly affected
by the opinion in issue, which dealt with Hutchison’s certification as a peace officer. The Trial Court
correctly ruled that appellants’ claim under the Declaratory Judgment Act against the Attorney
General regarding said opinion was barred by sovereign immunity. Additionally, we know of no
cause of action under which a party can sue the Attorney General on the basis of disagreement with
an opinion issued by the Attorney General.

Appellants next argue that the Trial Court incorrectly ruled that they did not have
standing to pursue their claims of ouster pursuant to Tenn. Code Ann. §8-47-102, nor their claims
under the Little Hatch Act, found at Tenn. Code Ann. §2-19-202 et seq. The Trial Court held that
claims under the Little Hatch Act had to be filed by the Attorney General pursuant to Tenn. Code
Ann. §2-19-208, because it provides for only a criminal penalty, which is accurate. Violations of
the Act are a misdemeanor, and there is no provision in the Act for a private right of action. Also,
the Trial Court found that ouster suits had to be filed by the Attorney General, or county/city
attorneys, as set forth in the ouster statute. Tenn. Code Ann. §8-47-102 expressly provides that these
are the only individuals empowered to bring such an action.

Appellants argue that pursuant to Bennett v. Stutts, 521 S.W.2d 575 (Tenn. 1975),
private citizens can bring such a suit if they show a special interest or special injury not common to
the public generally. Appellants state that they have shown such a special interest, in that they are
“public spirited citizens” who are trying to protect local taxpayers. Clearly, this is not adequate to
show a special interest or injury that is not common to the general public, as citizens of Knox County
are taxpayers. The Trial Court properly held that appellants did not have standing to bring these
claims.

Appellants take issue with the Trial Court’s ruling on venue, as the Trial Court found
that the claims against Hutchison and Ragsdale were localized to Knox County, and thus the
Davidson County Chancery Court was an improper venue. The Trial Court was correct in its ruling,
as the statute regarding venue expressly states:

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 (a) In all civil actions of a transitory nature, unless venue is otherwise expressly
provided for, the action may be brought in the county where the cause of action arose
or in the county where the defendant resides or is found.

(b) If, however, the plaintiff and defendant both reside in the same county in this
state, then such action shall be brought either in the county where the cause of action
arose or in the county of their residence.

(c) Where the action is brought either in the county where the cause of action arose
or in the county where the defendant resides, process may be sent to another county
as in local action, and it shall not be necessary nor required that the defendant be in
the county of action either when the action is commenced, or during the time between
the commencement of the action and service of process.

Tenn. Code Ann. §20-4-101.

As the Trial Court found, both Ragsdale and Hutchison reside in Knox County and
the events in issue occurred in Knox County and there was, therefore, no basis for filing suit against
the defendants in Davidson County. The issue is without merit.

Appellants also argue that the Court erred in failing to grant them Rule 59 relief from
the May 30, 2007 judgment, because they immediately filed a claim with POST after the judgment
was entered. As the Trial Court found, however, the proper remedy would be for appellants to re-file
their lawsuit after their administrative remedies were exhausted, and the Trial Court did not abuse
its discretion in denying appellants Rule 59 relief. As we have previously explained, the purpose of
a Rule 59 motion is to allow the trial court to correct a mistake before a judgment becomes final, and
may be granted “(1) when the controlling law changes before a judgment becomes final, (2) when
previously unavailable evidence becomes available, or (3) when, for sui generis reasons, a judgment
should be amended to correct a clear error of law or to prevent injustice.” Vaccarella v. Vaccarella,
49 S.W.3d 307 (Tenn. Ct. App. 2001). None of these conditions appeared in this case. The filing
of a claim on the day of the judgment does not warrant relief on this record.

Likewise, appellants’ complaints regarding the Trial Court’s denial of their later Rule
59 motion are also meritless. Appellants had already sought Rule 59 relief from the Court’s order,
which was denied, but they filed a motion seeking to “renew” their earlier Rule 59 motion, which
did not state any new basis for relief.

Appellants argue that the Court abused its discretion in denying their motion to
supplement their complaint, but as this Court has explained, “[t]he trial court's decision to deny a
motion to amend a complaint is reviewed under an abuse of discretion standard.” Merriman v.
Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App.1979). The Supreme Court has summarized the abuse
of discretion standard of review as follows:

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 A trial court's ruling “will be upheld so long as reasonable minds can disagree as to
the propriety of the decision made.” A trial court abuses its discretion only when it
“appl[ies] an incorrect legal standard, or reach[es] a decision which is against logic
or reasoning that cause[s] an injustice to the party complaining.” The abuse of
discretion standard does not permit the appellate court to substitute its judgment for
that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)(citations omitted).

Factors to be considered by the court in determining whether to grant a motion to
amend include: “[u]ndue delay in filing; lack of notice to the opposing party; bad faith by the moving
party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing
party, and futility of amendment.” Merriman, 599 S.W.2d at 559.

In this case, appellants sought to amend their complaint after the final order had been
entered by the Trial Court dismissing their claims, and after the Rule 59 motion seeking to alter and
amend the order had been denied. The amendment was arguably untimely, and would have
prejudiced the opposing party by renewing claims that had already been dismissed. Reasonable
minds could disagree about the propriety of the decision, and the Trial Court did not abuse its
discretion.

The Judgment of the Trial Court is affirmed, and the cost of the appeal is assessed
to the plaintiffs, collectively.

_________________________
HERSCHEL PICKENS FRANKS, P.J.

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