Robert Bean, Franklin Shaffer, David Autrey v. Ned Ray McWherter in his capacity as Governor of the State of Tennessee, - Concurring

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE

FOR PUBLICATION

Filed: September 8, 1997

ROBERT BEAN, FRANKLIN )
SHAFFER, DAVID AUTRY, )
MACK ROBERTS, KEVIN ANTLE, )
TOM NICHOLS, TAMMIE BEASLEY, )
and ROXANNE LUCE, )
)
Plaintiffs/Appellees, )
) Davidson Chancery
v. )
) Hon. Irvin H. Kilcrease, Jr.,
NED RAY McWHERTER, in his ) Chancellor
capacity as Governor of the State of )
Tennessee, CHARLES W. BURSON, ) No. 01S01-9607-CH-00132
Attorney General of the State of )
Tennessee, TENNESSEE WILDLIFE )
RESOURCES COMMISSION, and
GARY MYERS, Director of the
Wildlife Resources Agency,
)
)
)
FILED
)
Defendants/Appellants. ) September 8, 1997

Cecil W. Crowson
Appellate Court Clerk

FOR APPELLEES: FOR APPELLANTS:

F. Clay Bailey, Jr. John Knox Walkup
Tune, Entrekin & White, P.C. Attorney General & Reporter
Nashville
Michael E. Moore
Solicitor General

Elizabeth P. McCarter
Senior Counsel

OPINION

COURT OF APPEALS REVERSED; CASE REMANDED HOLDER, J.
 This appeal addresses the General Assembly's power to delegate rule-

making authority to administrative agencies. The Court of Appeals held that the

General Assembly could not constitutionally delegate power to the Tennessee

Wildlife Resources Commission ("TWRC") to add or delete animals from the

dangerous species list. We reverse and hold that the legislature may delegate

power to add and delete items from a statutory schedule absent explicit guidance

standards. The legislature, however, must provide a basic standard

accompanied by a general policy when delegating in areas concerning public

health, safety, and general welfare.

BACKGROUND

The plaintiffs, Robert Bean et al., claimed to be owners, dealers, or

licensed propagators of various wildlife species. They filed a complaint seeking

a declaratory judgment against the defendants, the TWRC and the Director of

the Tennessee Wildlife Resources Agency ("Director"). The plaintiffs alleged

that Tenn. Code Ann. § 70-4-403(1) & (3) violated the Tennessee Constitution by

unlawfully delegating legislative authority to both the TWRC and to the Director.

The trial court granted the plaintiffs' petition. The trial court held the

delegation unconstitutional because "the legislature did not provide the agencies

with any standards by which they were to proceed in deleting or adding species

under [the statute]." The Court of Appeals affirmed the trial court and held that

the delegation was unconstitutional due to the absence of specific standards.

The appellate court reasoned that, absent specific standards, the statute vests

the TWRC and the Director with "the discretion to determine what the law shall

be as opposed to discretion as to the law's execution."

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 We find the delegation of power constitutionally valid. For the reasons

stated below, we reverse the Court of Appeals and dismiss the case.

STATUTORY LANGUAGE

The issue in controversy concerns the statutory provisions in Tenn. Code

Ann. § 70-4-403(1) & (3). This statute classifies Tennessee wildlife into five (5)

general classes. Class I includes "all species inherently dangerous to humans."1

Class II includes all native species ("presently occurring in the wild") not listed in

another class. Class III is a domestic or semi-domestic class of animals that: (1)

is not listed in other classifications; and (2) requires "no permits except those

required by the department of agriculture."2 Class IV includes native species that

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The following animals are enumerated as inherently dangerous:

(A) Mammals:
(I) Primates - Gorillas, orangutans, chimpanzees, gibbons,
siamangs, mandrills, drills, baboons, Gelada baboons;
(ii) Carnivores:
(a) Wolves - All species;
(b) Bears - All species; and
(c) Lions, tigers, leopards, jaguars, cheetahs, cougars - All
species;
(iii) Order Proboscidia: Elephants - All species;
(iv) Order Artiodactyla: Rhinoceroses - All species;
(v) Order Artiodactyla: Hippopotamus, African buffalo;
(B) Reptiles:
(I) Order Crocodylia: Crocodiles and alligators - All species; and
(ii) Order Serpentes: Snakes - All poisonous species; and
(C) Amphibians: All poisonous species;
2
Animals specifically listed as Class III are as follows:

(A) Nonpoisonous reptiles and amphibians except caimans and gavials;
(B) Rodents - Gerbils, hamsters, guinea pigs, rats, mice, squirrels and
chipmunks;
(C) Rabbits, hares, moles and shrews;
(D) Ferrets and chinchillas;
(E) Llamas, alpacas, guanacos, vicunas, camels, giraffes and bison;
(F) Avian species not otherwise listed, excluding North American game
birds, ostriches and cassowary;
(G) Semi-domestic hogs, sheep and goats;
(H) All fish held in aquaria;
(continued...)

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may only be possessed by zoos and temporary exhibitors. Class V includes

species that are injurious to the environment.3

This appeals focuses on Class I and Class III. Class I provides that "[t]he

commission, in conjunction with the commissioner of agriculture, may add or

delete species from the list of Class I wildlife by promulgating rules and

regulations." Tenn. Code Ann. § 70-4-403(1). Class III permits "[t]he

commission, in conjunction with the commissioner of agriculture, [to] add or

delete species from the list of Class III wildlife by promulgating rules and

regulations." The delegation of the authority to add and delete species from

Class I and Class III is the focus of this appeal by the defendants. Tenn. Code

Ann. § 70-4-403(3).

ANALYSIS

The General Assembly may grant an administrative agency the power to

promulgate rules and regulations which have the effect of law in the agency’s

area of operation. Tasco v. Long, 368 S.W.2d 65, 68-69 (1963). This grant of

power, however, should be limited and defined in such a manner that

administrative officials can discern and implement the legislature's will. 16 C.J.S.

2
(...continued)
(I) Bovidae not otherwise listed;
(J) Marsupials;
(K) Common domestic farm animals;
(L) Equidae;
(M) Primates not otherwise listed;
(N) Bobcat/domestic cat hybrids;
(O) Hybrids resulting from a cross between a Class II species and a
domestic animal or Class III species;
(P) Cervidae except white-tailed deer; and
(Q) Furbearing mammals, including those native to Tennessee, raised
solely for the sale of fur.
3
Class V species may only be held in zoos or under such conditions that
will prevent their release into the environment.

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Constitutional Law § 137, 448-49 (1984). An administrative agency may be

afforded discretion as to implementation of legislative policy but not as to

determination of that policy. State v. Edwards, 572 S.W.2d 917, 919 (Tenn.

1978).

Our review of previous case law reveals that this Court has never

succinctly stated a test for determining whether a delegation of power is

constitutional. In Lobelville v. McCanless, 381 S.W.2d 2d 273 (Tenn. 1964), this

Court quoted 16 C.J.S. Constitutional Law § 133, 560-61 for the proposition that

lawful delegations require a "sufficient basic standard" accompanied by "a

definite and certain policy and rule of action." Id. at 274. Legislative delegations

must also contain sufficient safeguards to prevent agencies from acting in an

arbitrary manner. State v. Edwards, 572 S.W.2d 917, 919 (Tenn. 1978); Tasco

Developing and Building Corp. v. Long, 368 S.W.2d 65 (Tenn. 1963). Prior case

law, however, has not enunciated criteria for analyzing whether the legislature's

guidelines or standards are adequate to prevent arbitrary action.

We are mindful of the need for guidance in this area. We have

reexamined Tasco and its progeny and have created a test for analyzing the

adequacy of the standards or guidelines contained in a statute alleged to have

unlawfully delegated legislative power. We, therefore, hold that the test for

determining whether a statute is an unlawful delegation is whether the statute

contains sufficient standards or guidelines to enable both the agency and the

courts to determine if the agency is carrying out the legislature's intent.

Governing standards need not be expressed provided such standards can

be reasonably ascertained from the statutory scheme as a whole. The necessity

of expressed standards is contingent upon the statute's subject matter and on

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the degree of difficulty involved in articulating finite standards. Detailed or

specific legislation may be neither required nor feasible when the subject matter

requires an agency's expertise and flexibility to deal with complex and changing

conditions.

The requirement of expressed standards may also be relaxed when the

discretion to be exercised relates to or regulates for the protection of the public's

health, safety, and welfare. In Tasco v. Long, 368 S.W.2d 65 (Tenn. 1963), this

Court was confronted with a statute that delegated powers to a board to grant

general contractor licenses.4 The statute stated that the board

shall have the power to make such by-laws, rules, and regulations
as it shall deem best, providing the same are not in conflict with the
laws of Tennessee.

Id. at 67. We interpreted the statute's standard as one of reasonableness. Id. at

67-69. The board, therefore, was given the discretion to act provided its

decisions were neither arbitrary nor capricious and were in harmony with the

laws of this state. Id. Although these guidelines were vague, they were held

sufficient under the circumstances.

In Tasco, we found that the policy behind the statute was "to protect the

general public from contractors who are not qualified to perform work which they

4
The Court of Appeals held that the issue in Tasco was not whether the
delegation was constitutional but whether the Board had exceeded its authority.
We, however, framed the issue in Tasco as follows:

The real question for consideration in this lawsuit is whether or not
the State Board for Licensing General Contractors has the right,
power, and authority to classify and limit the license which it issues
to general contractors.

Tasco, 368 S.W.2d at 66.

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have contracted . . ." Id. at 68. Accordingly, Tasco teaches us that minutely

detailed standards are not required when the statute's policy relates to public

health, safety, or welfare and when flexibility is necessary for practical legislation.

The legislative policy of the present statute is clear. The statute outlines a

general scheme designed to protect the public from dangerous animals. If the

agency adds a non-enumerated animal to one of the legislative classes, that

species is regulated pursuant to the legislative scheme. The mere adding or

deleting of animals from a nonexclusive list or moving an animal from one

classification to another does not alter the legislative policy of providing public

protection. See State v. Edwards, 572 S.W.2d 917 (Tenn. 1978) (holding adding

and deleting items from a non-exclusive list permissible).

Because the present statute concerns issues of public safety and welfare,

the requirement of expressed or specific standards is relaxed. The legislative

standard for adding an animal to Class I is whether the animal is "inherently

dangerous." The legislature has also provided a non-exclusive list, in both Class

I and Class III, of animals falling within the legislatively-created categories or

classifications. These lists provide the agency with additional criteria for

classifying animals.

We have carefully considered the entire statutory scheme and find that

the statute implies a standard of reasonableness. We further find that the

statute's guidelines are that animals possessing characteristics consistent with

the legislature's listed examples and statutory definitions are to be classified

pursuant to the legislative scheme. These standards are clearly adequate to

allow both us and the TWRC to determine whether the legislature's intent is

being furthered.

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 We hold the present delegation of power constitutional. We reverse the

Court of Appeals judgment and remand for further proceedings consistent with

this opinion. Costs of this appeal are taxed to the appellees, Robert Bean et al.,

for which execution may issue if necessary.

Janice M. Holder, Justice

Concurring: Anderson, C.J.
Drowota, Reid, Birch, J.J.

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