Delaney v. Thompson

FOR PUBLICATION

IN THE SPECIAL SUPREME COURT OF TENNESSEE

AT NASHVILLE

ROBERT L. DeLANEY, )
)
Plaintiff-Appellant, )
)
) Davidson Chancery
)
v. ) Hon. Ellen Hobbs Lyle,
) Chancellor
)
) S. Ct. No. 01S01-9808-CH-00144
BROOK THOMPSON, ET AL., )
)
Defendants-Appellees. )

For Plaintiff-Appellant: For Defendants-Appellees:

Robert L. DeLaney John Knox Walkup
Nashville Attorney General and
Reporter
Nashville

Michael E. Moore
Solicitor General
Nashville

Michael W. Catalano
Associate Solicitor General
Nashville

OPINION

J u d g m e n t o f C o u r t o f
A p p e a l s a n d T r i a l C o u r t
R e v e r s e d ; C a s e R e m a n d e d . D a v i s , C . J . ,
 S p e c i a l S u p r e m e C o u r t

In this case, we are invited to decide whether the Tennessee Plan for election of

appellate judges, codified as Title 17, Chapter 4 of the Tennessee Code Annotated, is

unconstitutional for a variety of reasons, but most particularly because it contemplates

“retention elections” for incumbent appellate judges. In general, the Tennessee Plan

provides that an incumbent appellate judge may run for reelection unopposed on the

ballot, provided the incumbent’s retention has been recommended by the judicial

evaluation commission; the judge will be retained in office if a majority of those voting in

the election for that judge’s seat vote for such retention. Tenn. Code Ann. § 17-4-

115(d)(1)(1994). It is the duty of all courts, including the Supreme Court, to pass on a

constitutional question only when it is absolutely necessary for the determination of the

case and of the rights of parties to the litigation. Glasgow v. Fox, 214 Tenn. 656, 666-667,

383 S.W. 2d 9, 13-14 (1964). See also, Jackson v. Davis, 530 F. Supp. 2, 4 n. 1 (E.D.

Tenn.), aff’d, 667 F. 2d 1026 (6th Cir. 1981). We hold that it is not necessary to address

the constitutionality of the Tennessee Plan in this case, because it is not applicable to the

facts of this case. For that reason, the Court of Appeals erred in holding the Tennessee

Plan constitutional, just as the trial judge erred in holding the Plan unconstitutional. We

reach this conclusion because the express provisions of the Tennessee Plan render it

inapplicable to the election for which defendant Brook Thompson, State Coordinator of

Elections, refused to accept a qualifying petition submitted by the plaintiff, Robert L.

DeLaney.

Judge Henry Todd’s eight year term on the Tennessee Court of Appeals was to

expire September 1, 1998. Judge Todd was required to be evaluated by the Judicial

Evaluation Commission pursuant to Tenn. Code Ann. § 17-4-201(d)(Supp. 1998) and Rule

27 of the Supreme Court Rules. Judge Todd apparently had no intention of running for

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reelection, and so advised the Judicial Evaluation Commission.

On March 26, 1998, before the Commission had issued any report concerning

retention of the incumbent judges, the plaintiff requested from Thompson a nominating

petition to run as an independent candidate for the Tennessee Court of Appeals. By letter

dated March 27, 1998, Thompson advised the plaintiff as follows:

[I]f the Commission does not recommend one or more of the judges for retention,
then that position or positions will be considered contested offices and this office
will issue petitions to any interested persons.

This statement by Thompson in his March 27, 1998 letter to the plaintiff was entirely

consistent with the provisions of Tenn. Code Ann. § 17-4-115 (c), which provides as

follows:

Unless the judicial evaluation commission recommends the retention of a judge, the
provisions of this part shall not be applicable. A political party may nominate a
candidate and independent candidates may qualify under the general election law
for the general election which shall be the regular August election. After a judge is
elected under this subsection the provisions of this chapter concerning the
evaluation and retention process shall again apply.

(Emphasis supplied).1 The entire Tennessee Plan pertaining to the election of appellate

judges appears in Part 1 (“Judicial Selection”) of Chapter 4 of Title 17 of the Code.

Therefore, under Tenn. Code Ann. § 17-4-115(c), the failure of the Commission to

recommend the retention of any judge would render the Tennessee Plan inapplicable to

the election to fill that judge’s seat, and the election therefore would be conducted as any

other election (rather than as a “retention election). Under the express direction of Tenn.

Code Ann. § 17-4-115(c), in this situation, political parties can nominate candidates and

independent candidates can qualify , and only after the election will the Tennessee Plan

again apply. Accordingly, any interested person would be entitled to receive a qualifying

petition and to seek to qualify to have his or her name placed on the ballot in the election

for that judge’s seat.2

1
“Part”, as th at term is used in the Te nness ee Co de, is a ter m of a rt, and h ere m eans P art 1 of T itle
17, Chap ter 4—th e entire po rtion of the T ennesse e Plan ha ving to do with “Jud icial Selection.” See
4 Tenn. Cod e Ann. at xiii (1994)(num bering system appearing in the User’s Guide to th e Code).
2
The dissent reasons that Tenn. Code Ann. § 17-4-115(c)(1994) only applies “to incumbent judges
seek[ing] reelection,” and that since Judge Todd did not seek reelection, the section did not apply and
Judge Todd’s seat was to be filled pursuant to another provision of the Tennessee Plan, Tenn. Code
Ann. § 17-4-116(1994). The difficulty with this reasoning is that the recommendation for retention
must occur be fore the qualifying de adline, and Ten n. Code An n. §17-4-115(c) stipulates that if a
judge does not receive such a recommendation, only “[a]fter a judge is elected under this subsection
[Tenn. Code Ann. § 17-4-115(c), shall] the provisions of this chapter concerning the evaluation and

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 Rather than waiting to see whether the Commission would fail to recommend

retention of any judge, on April 3, 1998, the plaintiff filed this action in Davidson County

Chancery Court to seek to enjoin Thompson from placing the names of several incumbent

judges on the ballot on a retention election basis. The plaintiff did not ask the Court to

compel the defendant to issue him a qualifying petition, or to extend the qualifying

deadline.

On April 10, 1998, the Judicial Evaluation Commission issued the “Tennessee

Appellate Judges Evaluation Report”. This Report did not recommend the retention of

Judge Todd, but stated that the Commission was informed that Judge Todd would not

seek reelection. Interestingly enough, the Office of the Attorney General had previously

advised the Judicial Evaluation Commission that it could not fail to evaluate an incumbent

judge in just this situation. In Opinion No. 97-101 (July 17, 1997), the Office of the

Attorney General stated as follows:

The Judicial Evaluation Commission is not relieved of its obligation to
evaluate the judge regardless of any expression of such intention [not to seek
reelection], because the Commission has not been given any legal authority to
utilize such a statement to remove a judge from the evaluation process.

Based on the position taken in Thompson’s March 27 letter to the plaintiff; based on the

Attorney General Opinion to the effect that the Commission was under an obligation to

evaluate Judge Todd regardless of his intention to run for office; and based upon the

above-quoted language of Tenn. Code Ann. § 17-4-115 (c) that “unless the judicial

evaluation commission recommends the retention of a judge, the provisions of [the

Tennessee Plan] shall not be applicable”, one might have expected the plaintiff to renew

his request for a qualifying petition, or Thompson to promptly issue the petition without any

additional request. However, the plaintiff apparently did not again demand a qualifying

petition from Thompson until May 12, 1998, more than a month after the Commission

issued its Report. While Thompson did on May 13 provide the plaintiff with the requested

retention process...again apply.” Unless this language does not mean what it says, Tenn. Code Ann.
§ 17-4-116, which comprises a part of the Tennessee Plan, cannot apply to fill the seat of an
incumbent whose retention has not been recommended, regardless of whether or not the incumbent
eventually chooses to run for reelection. Moreover, under the dissent’s reading of the statute, even
after the judicial evaluation commission failed to approve an incumbent’s retention, political parties
and potential candidates would not know whether the Tennessee Plan was to apply to the election
until the qualifying dead line passed withou t the incumbe nt filing a declaration of candida cy. Thus,
any rights conferred by Tenn. Code Ann. § 17-4-115(c) upon political parties to nominate candidates
and upon independent candidates to qualify to run in the election, would be effectively frustrated.

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qualifying petition, Thompson at that time modified the position he had taken in his March

27 letter to plaintiff. In a notice to plaintiff, he stated as follows:

If Judge Henry Todd does not file a declaration of candidacy for the office of Judge
of the Court of Appeals, Middle Section, pursuant to Tennessee Code Annotated §
17-4-115(a)(1), by the qualifying deadline of May 21, 1998, then any qualifying
petitions for candidacy for the office of Judge of the Court of Appeals, Middle
Section, presently held by Judge Todd that are lodged with this office will not be
filed and are void and of no legal effect. In that situation, Tennessee Code
Annotated § 17-4-116(a) [that is, the Tennessee Plan] will control the filling of the
vacancy.

(Emphasis supplied.) The plaintiff did lodge his qualifying petition on May 19, 1998, but

Judge Todd did not file a Declaration of Candidacy by the qualifying deadline of May 21.

Thompson then informed the plaintiff that his qualifying petition was void and of no legal

effect, because the election was to be governed by the Tennessee Plan, specifically Tenn.

Code Ann. § 17-4-116 (1994). This, in effect, meant that no election would be held for

Judge Todd’s seat until after the Governor had appointed a new judge, something which

was unlikely to happen, and did not in fact happen, before August 6, 1998, the election

day specified by Article VII, § 5 of the Tennessee Constitution.

As far as we are able to determine from the record before us, the plaintiff never

challenged Thompson’s position that Tenn. Code Ann. § 17-4-116 would apply to the

election for Judge Todd’s seat. Instead, the plaintiff chose to rest his position in the trial

court entirely upon the asserted unconstitutionality of the Tennessee Plan. The trial court

agreed with the plaintiff that the Tennessee Plan was unconstitutional and enjoined

Thompson to place the plaintiff’s name on the ballot for the August 6, 1998 election to fill

Judge Todd’s seat. The defendants appealed, and persuaded the Special Court of

Appeals appointed to hear this case, to dissolve the injunction. The Special Court of

Appeals then reversed the trial court, and pronounced the Tennessee Plan constitutional.

We granted the plaintiff’s application to appeal, and we now reverse the decision of the

Court of Appeals because the Tennessee Plan was not applicable to the election to fill

Judge Todd’s seat.

While Thompson recognized in his March 27 letter to the plaintiff that the

Commission’s failure to recommend Judge Todd’s retention would render the Tennessee

Plan inapplicable to the election for his seat under Tenn. Code Ann. § 17-4-115(c), he

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apparently considered Judge Todd’s subsequent failure to file a Declaration of Candidacy

as changing the situation and triggering the procedure described in Tenn. Code Ann. § 17-

4-116.3 Thompson was simply incorrect. Section 17-4-116, a part of the Tennessee Plan,

must be read in the light of the preceding section, and most especially Tenn. Code Ann. §

17-4-115 (c), which expressly declares that the Tennessee Plan is not applicable if the

Judicial Evaluation Commission does not recommend that an incumbent judge be

retained, and will not again be applicable until after the election specified in that

subsection. If Tenn. Code Ann. § 17-4-116 was applicable when the Commission has not

recommended such retention, then Tenn. Code Ann. § 17-4-115 (c) would be

meaningless. We are bound by established principles of statutory construction to

construe statutes, whenever possible, in a way which gives meaning to every portion of

the statute. Anderson Fish & Oyster Co. v. Olds, 197 Tenn. 604, 277 S.W. 2d 344 (1954).

Therefore, we must reject an interpretation which would render the provisions of Tenn.

Code Ann. § 17-4-115(c) meaningless. We therefore hold that when the Commission filed

the Report of the Judicial Evaluation Commission on April 10, 1998, and did not

recommend that Judge Todd be retained in office, the provisions of the Tennessee Plan

became inapplicable to the election for Judge Todd’s seat on the Court of Appeals under

the plain language of Tenn. Code Ann. § 17-4-115(c) until after the open election specified

in that subsection.

Judge Todd’s subsequent failure to file any declaration of candidacy cannot

logically change the result. Otherwise, rather than being inapplicable to the election until

after a new judge is elected as expressly commanded by Tenn. Code Ann. § 17-4-115(c),

the Tennessee Plan would merely be conditionally suspended until such time as the

incumbent failed to file a Declaration of Candidacy. This would be especially anomalous;

when a judge’s eight year term of office expired, political parties, potential candidates and

the electorate itself would not know the manner of filling such a regularly recurring vacancy

3
The plaintiff agrees with th e defendan ts that Tenn. Cod e Ann. § 17-4-11 6 was, by its terms,
applicable to the election, stated so at oral argument before this Court, and reaffirmed this position
in a brie f lodge d subse quen t to oral ar gum ent. Th e plaint iff appa rently a nticipat ed, corr ectly as it
turns ou t, that this Cou rt would not reach the me rits of the plaintiff’s co nstitutional ar gume nts
unle ss it wa s conv inced that th e Ten nesse e Plan was a pplic able to the el ection to fill Ju dge T odd ’s
seat.

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on the Court of Appeals until the expiration of the qualifying deadline for the election4.

This cannot have been the Legislature’s intent, and is certainly not the law unless Tenn.

Code Ann. § 17-4-115(c) is entirely inoperative. Therefore, Tenn. Code Ann. § 17-4-116,

as a part of the Tennessee Plan, must apply only to the situation in which an incumbent

appellate court judge whose retention has been recommended by the Commission fails to

file a declaration of candidacy or withdraws as a candidate. This, in fact, seems the plain

and obvious meaning of Tenn. Code Ann. § 17-4-115 as understood by Thompson himself

as expressed in his March 27, 1998 letter to the plaintiff. It is puzzling that Thompson

changed his interpretation, and it is even more puzzling that the plaintiff acquiesced in

Thompson’s new, and strained, interpretation. One might be forgiven for suspecting that

both sides overlooked Tenn. Code Ann. § 17-4-115(c), in their haste to test the

constitutionality of the Tennessee Plan.

Since we hold that the Tennessee Plan was inapplicable to the election to fill Judge

Todd’s seat for the term commencing September 1, 1998, we need not reach any of the

constitutional challenges to the Tennessee Plan advanced by the plaintiff. As already

pointed out, in the trial court, the plaintiff never challenged the defendants’ interpretation of

the Tennessee Plan as applicable to the election in question. Our jurisdiction is appellate

only, and we are not in a position to rule upon claims which the plaintiff might have

asserted, but failed to assert, in the trial court. Moreover, while it appears from the

meager record before us that the plaintiff properly qualified to have his name placed on

the ballot for the August 6, 1998 election to fill Judge Todd’s seat, an election which never

occurred, the courts cannot turn back the constitutional clock. Article VII, § 5 of the

Constitution of Tennessee prohibits special elections to fill a vacancy in the office of Judge

except at the time fixed for the biennial elections, and the next such election will not occur

until August of the year 2000.5

4
As a direct consequence of Thompson’s erroneous application of Tenn. Code Ann. § 17-4 116 to the
facts of this case, with which the plaintiff acquiesced, there was no August 6 election--retention or
otherw ise--to fill Ju dge T odd’s se at, because there were no candidates . This affro nt to the dem ocratic
process apparently troubles neither party. The practical consequence of the parties’ erroneous
reading of the statute is that the judge whose retention has not been recommended would have the
pow er to de term ine, by filin g or failin g to file a d eclaratio n of can didacy , whet her or not the re wo uld
be a contested election to fill his seat at the expiration of his term of office. We can think of no
principled reason w hy the electoral proce ss may be frustrated by an incum bent judge w hose
retention has not been approved.
5
Indeed, we m ight be inclined to conside r the appeal m oot, but for the fact that “interests of a
public cha racter and of impor tance in th e adm inistration of ju stice gener ally are invo lved.”

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 We therefore REVERSE the decision of the Court of Appeals and REMAND this

case to the trial court for further proceedings not inconsistent with this opinion.

Costs of the appeal are taxed to the plaintiff, Robert L. DeLaney.

_________________________________
Ames Davis, C.J., Special Supreme Court

Concur:
Benjamin Hooks, J., Special Supreme Court
Gary D. Gerbitz, J., Special Supreme Court

Dissent:
Robert D. Arnold, J., Special Supreme Court

Concurring in Dissent:
Jeanie M. Todd, J., Special Supreme Court

McC anless v . Klein , 182 Te nn. 631 , 638, 188 S.W. 2d 745, 747 (Tenn . 1945).

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