Robert Bean, Franklin Shaffer, David Autry, Mack Roberts v. Ned Ray McWherter, Governor of the State of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE

FILED
ROBERT BEAN, FRANKLIN SHAFFER, ) February 1, 2000
DAVID AUTRY, MACK ROBERTS, )
) Cecil Crowson, Jr.
Plaintiffs/Appellants, ) Appellate Court Clerk
) Appeal No.
) M1999-01493-COA-R3-CV
VS. )
)
) Davidson Chancery
NED RAY McWHERTER, in his capacity as ) No. 91-2558-I
Governor of the State of Tennessee, )
CHARLES W. BURSON, Attorney General of )
the State of Tennessee, TENNESSEE )
WILDLIFE RESOURCES COMMISSION and )
GARY MYERS, Director of the Wildlife )
Resources Agency, )
)
Defendants/Appellees. )

OPINION ON PETITION TO REHEAR

The appellants have asked the court to rehear this appeal because we
did not address the facial conflict between the definitions of Class II and Class III
wildlife, leaving the public without any guidance as to what species are in Class II.

Since the possession of Class II wildlife without a permit is a crime, and no permit is

required for the possession of those species in Class III, the determination of what is

included in Class II is the critical determination. And a person of ordinary intelligence

must be able to make it. State v. Thomas, 635 S.W.2d 114 (Tenn. 1982).

As we pointed out in the opinion the definition of Class II is perhaps the

simplest of all: native species not listed in other classes. The appellants argue,

however, that since the Class III definition also includes “all species not listed in other

classes” and there is no list in Class II, there is nothing left in Class II.

If the appellants are correct in their analysis (a point on which we
express no opinion), then they are under no threat of prosecution for possessing

wildlife not listed in Classes I, IV and V. All other species would fall under Class III,
which requires no permits except those required by the Department of Agriculture.
Tenn. Code Ann. § 40-4-403(3). But this is not a fatal case of vagueness; rather it is
an ambiguity which requires the application of rules of construction. “That is not
uncertain or vague which by the orderly processes of litigation can be rendered

sufficiently definite and certain for purposes of judicial decision.” Donathan v. McMinn

County, 213 S.W.2d173 at 176 (Tenn. 1948). What is certain is that the legislature
intended to require a permit for the possession of certain classes of animals. The

courts can, on the issue being properly presented, decide whether there is a Class II

or whether Class III occupies the entire field of unlisted species. We do not think the
confusion renders the statute unconstitutionally vague.

We, therefore, overrule the petition to rehear.

_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.

_________________________________
WILLIAM C. KOCH, JR., JUDGE

_________________________________
WILLIAM B. CAIN, JUDGE

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