Sherrie L. Durham v. Bill Haslam

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 20, 2015 Session

SHERRIE L. DURHAM v. BILL HASLAM, ET AL.

Appeal from the Circuit Court for Davidson County
No. 14C2598 Walter C. Kurtz, Judge

________________________________

No. M2014-02404-COA-R3-CV – Filed April 1, 2016
_________________________________

Plaintiff filed a complaint against the Governor, all state appellate court judges, the
Tennessee Republican Party, and the Tennessee Democratic Party in which she alleges,
inter alia, that the Tennessee Plan and statutes providing for the appointment of special
and senior judges violate her state and federal constitutional rights. The defendants filed
motions to dismiss, arguing that Plaintiff lacked standing and failed to state a claim for
which relief can be granted. The trial court granted the motions to dismiss, and Plaintiff
appeals. We affirm the trial court‟s judgment dismissing Plaintiff‟s complaint.1

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

PATRICIA J. COTTRELL, S.J., delivered the opinion of the Court, in which BUDDY PERRY,
S.J., and MIKE JONES, S.J., joined.

Sherrie Durham, Mount Juliet, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Blumstein, Solicitor
General; and Janet M. Kleinfelter, Deputy Attorney General; for the appellee, Bill
Haslam, in his official capacity as Governor of the State of Tennessee, et al.

1
After oral argument, Ms. Durham filed a motion for all special judges on this panel to recuse themselves.
We each separately declined. Ms. Durham then sought full court review of our denials. Pursuant to
Section 1.02 of Rule 10B of Rules of the Tennessee Supreme Court, we took no further action in the case,
pending final determination of the recusal issues.
 OPINION

I. PROCEDURAL BACKGROUND

On June 25, 2014, Sherrie L. Durham filed a complaint against Governor Bill
Haslam, the Justices of the Tennessee Supreme Court, all Judges of the Tennessee Court
of Appeals, Donald P. Harris, a senior judge, (the Governor and judges shall be referred
to as “State Defendants”), the Democratic Party of Tennessee together with its chairman,
and the Tennessee Republican Party together with its chairman (all defendants as a group
shall be referred to as “Defendants”). Ms. Durham alleged that the Tennessee Plan,
which is a shorthand reference for the statutory method for selection and retention of
appellate judges, violates the Tennessee and United States Constitutions.

She also alleged that the statutes providing for the appointment of special judges
and senior judges violate the Tennessee and United States Constitutions; challenged
Executive Order 34, by which Governor Haslam created a Commission for Judicial
Appointments to replace the former Judicial Nominating Commission; and complained
that she was not provided a fair and impartial hearing in a separate employment
termination case she filed in 2006 against the Tennessee Department of Labor and
Workforce Development (the “2006 Lawsuit”). As relief, Ms. Durham seeks a
declaratory judgment that the Tennessee Plan, the senior judge statutes, and special judge
statutes are all unconstitutional; injunctive relief; damages in the amount of $1,000,000;
and an award of her attorney‟s fees and costs.

The State Defendants, the Republican Party, and the Democratic Party each filed a
motion to dismiss Ms. Durham‟s complaint pursuant to Tenn. R. Civ. P. 12.02 (1) and
(6). The trial court granted the motions and dismissed Ms. Durham‟s complaint on
October 7, 2014. To the extent Ms. Durham‟s complaint focuses on judicial decisions in
the separate case in which she is a party, the trial court found “those issues need to be
resolved in those cases and not in this case.” With regard to Ms. Durham‟s challenge of
the Tennessee Plan and statutes providing for the appointment of senior and special
judges, the trial court found Ms. Durham lacks standing as a voter and citizen to
challenge the general laws relating to the selection of judges. The trial court also found
Executive Order 34 was properly promulgated. Turning to the political parties, the trial
court found (1) they are private parties that cannot be liable for any purported
involvement with a legislative system of judicial selection; (2) they are not state actors
and are, therefore, not subject to federal constitutional claims under 42 U.S.C. § 1983;
and (3) they have no formal involvement in the process of nominating and appointing

2
judges.

Ms. Durham appeals the trial court‟s order.

II. STANDARD OF REVIEW

The Defendants based their motions to dismiss on Rules 12.02(1) and (6) of the
Tennessee Rules of Civil Procedure. They argued both that the trial court lacked subject
matter jurisdiction because Ms. Durham lacked standing to pursue her claims and that
Ms. Durham‟s complaint failed to state a claim for which relief could be granted. A
motion to dismiss for lack of subject matter jurisdiction “call[s] into question the court‟s
„lawful authority to adjudicate a controversy brought before it,‟ and, therefore, should be
viewed as a threshold inquiry.” Redwing v. Catholic Bishop for Diocese of Memphis, 363
S.W.3d 436, 445 (Tenn. 2012) (quoting Northland Ins. Co. v. State, 33 S.W.3d 727, 729
(Tenn. 2000)). When a court‟s subject matter jurisdiction is challenged, the plaintiff has
the burden of establishing that the court has jurisdiction to adjudicate his or her claim.
Redwing, 363 S.W.3d at 445.

A motion to dismiss based on Tennessee Rule of Civil Procedure 12.02(6) requires
a court to determine if the pleadings set forth in the complaint state a claim for which
relief can be granted. TENN. R. CIV. P. 12.02(6). A motion under Rule 12.02(6) alleges
the complaint is legally insufficient; it does not challenge the strength of the plaintiff‟s
evidence in support of the claim. Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237
(Tenn. 2014). The proponent of the motion „“admits the truth of all the relevant and
material allegations contained in the complaint, but . . . asserts that the allegations fail to
establish a cause of action.‟” Id. (quoting Webb v. Nashville Area Habitat for Humanity,
Inc., 346 S.W.3d 422, 426 (Tenn. 2011)). In ruling on motions to dismiss for failure to
state a claim, trial courts are directed to „“construe the complaint liberally, presuming all
factual allegations to be true and giving the plaintiff the benefit of all reasonable
inferences.”‟ Id. (quoting Webb, 346 S.W.3d at 426).

On appeal, the appellate court reviews the trial court‟s decision on a motion to
dismiss de novo, affording it no presumption of correctness. Id.

III. SELECTION AND ELECTION OF APPELLATE JUDGES

Ms. Durham contends that the Tennessee Plan is unconstitutional under the
Tennessee Constitution and also deprives her of rights protected by the United States
Constitution. The Tennessee Plan is codified at Tenn. Code Ann. §§ 17-4-101 et seq.
Those statutes established the method for the selection and election of appellate court
judges in Tennessee, as described in more detail in Hooker v. Haslam, 437 S.W.3d 409
3
(Tenn. 2014). Essentially, the Plan included a merit selection process and a merit
retention process. The selection process included vetting by a state judicial nominating
commission,2 Tenn. Code Ann. § 17-4-102(a), and appointment by the Governor from
candidates nominated by the commission to fill a vacancy occurring during the term of
office of a judge of the Court of Appeals, Court of Criminal Appeals or Supreme Court.
Tenn. Code Ann. § 17-4-109.

Additionally, under the Plan, any incumbent appellate judge who sought election
to fill out a term or reelection for a full eight-year term could file a written declaration of
candidacy. Tenn. Code Ann. § 17-4-115(a). Upon proper filing of a declaration of
candidacy, the judge‟s performance was evaluated by the Judicial Performance
Evaluation Commission. If recommended for retention by that Commission, the judge
stood for election in a retention election, in which only the name of the judge, without
party designation, was submitted to the statewide electorate who voted whether or not to
retain that judge. Tenn. Code Ann. §§ 17-4-114 and -115. A judge was elected if a
majority of the voters voted to retain him or her. Tenn. Code Ann. § 17-4-115(d)(1).

When the Tennessee Plan was enacted, and when Ms. Durham filed her complaint,
the relevant provision of the Tennessee Constitution, Article VI, Section 3 provided in
pertinent part:

The Judges of the Supreme Court shall be elected by the qualified voters of
the State. The Legislature shall have power to prescribe such rules as may
be necessary to carry out the provisions of section two of this article.

Article VI, Section 4 made similar provision for intermediate appellate courts,
stating that they and other inferior courts “shall be elected by the qualified voters.”
Article VI, Section 3 of the Tennessee Constitution was amended in November 2014,
after Ms. Durham filed her complaint.3 Following the November 2014 amendment,

2
The judicial nominating commission was allowed to go out of existence, pursuant to Tennessee‟s
“Sunset” law, Tenn. Code. Ann. § 4-29-233(a)(15), and after a year to wind up its business, ceased to
exist as of July 1, 2013. In Hooker v. Haslam, the Special Supreme Court held that any challenges to the
statutory nominating commission process had been rendered moot by the expiration of that commission.
437 S.W.3d at 417.
3
Ms. Durham attempted to amend her complaint to add a challenge to the procedure by which the
proposed amendment of Article VI, Section 3 was included on the ballot in November 2014. However,
the trial court denied Ms. Durham‟s motion to amend her complaint based on her failure to state in her
motion how she proposed to amend her complaint. The trial court specified that Ms. Durham could file
another motion to amend if it was properly supported, but Ms. Durham failed to do this. Instead, she
chose to simply file an amended complaint, with no motion attached. Ms. Durham is not permitted to
amend her complaint without permission from the court. TENN. R. CIV. P. 15.01.
4
Article VI, Section 3 now provides in relevant part:

Judges of the Supreme Court or any intermediate appellate court shall be
appointed for a full term or to fill a vacancy by and at the discretion of the
governor; shall be confirmed by the Legislature; and thereafter, shall be
elected in a retention election by the qualified voters of the state.
Confirmation by default occurs if the Legislature fails to reject an appointee
within sixty calendar days of either the date of appointment, if made during
the annual legislative session, or the convening date of the next annual
legislative session, if made out of session. The Legislature is authorized to
prescribe such provisions as may be necessary to carry out Sections two
and three of this article

Thus, Article VI, Section 3 has been amended to incorporate the basic components of the
Tennessee Plan: (1) appointment by the Governor to fill a vacancy, adding legislative
confirmation, and (2) retention elections.

In a large part of her argument, Ms. Durham relies on language from the earlier
version of Article VI, Section 3 that “[t]he Judges of the Supreme Court shall be elected
by the qualified voters of the State.” She contends the Tennessee Plan4 violates this
constitutional provision because that statutory method allegedly deprives her and other
Tennessee citizens of the opportunity guaranteed by the Tennessee Constitution to elect
appellate court judges.

The Tennessee Plan, or some variant thereof, has been challenged on numerous
occasions, and each time the courts have determined it is constitutional. The Tennessee
Supreme Court first addressed it in State by Shriver ex rel. Higgins v. Dunn, 496 S.W.2d
480 (Tenn. 1973). In that case, the Court considered whether a retention election
involving only a yes/no vote was the type of election contemplated in Article VI, Section
3 of the Tennessee Constitution. Dunn, 496 S.W.2d at 488. Answering in the
affirmative, the Dunn Court wrote:

The Constitution of Tennessee does not define the words, “elect”,
“election”, or “elected” and we have not found nor have we been referred to
any provision of the Constitution or of a statute or to any decision of one or
our appellate courts defining these words.

4
She makes similar challenges to the statutes providing for appointment of senior judges
and special judges, which will be discussed later in this opinion.
5
Id. at 489. Noting that the Tennessee Constitution refers to referenda, which are limited
to an approval or disapproval, as “elections,” the Court reasoned that a yes/no vote to
retain an appellate judge also qualifies as an election. Id. at 489. The Dunn Court
continued, “This is particularly the case, since Article 7, Section 4 reposes wide
discretion in the Legislature with respect to elections and the filling of vacancies.” Id.
See also State ex rel. Hooker v. Thompson, 249 S.W.3d 331, 338 (Tenn. 1996).

The most recent case to consider the Tennessee Plan is Hooker v. Haslam, 437
S.W.3d 409 (Tenn. 2014). In that case, as here, the plaintiff argued that the Tennessee
Plan was unconstitutional because the retention election process was inconsistent with the
Constitution‟s requirement that appellate judges be elected by qualified voters despite the
fact that two prior holdings of the Tennessee Supreme Court had established otherwise.
Id. at 414-16. In a thorough opinion, the Hooker v. Haslam Court, composed of Special
Justices, reviewed the earlier holdings that the retention election portion of the Tennessee
Plan is constitutional. Id. at 426.

The Hooker v. Haslam Court noted that the Court deciding Thompson had not
simply applied stare decisis, but, instead, had “itself considered and analyzed the
question.” Id. The Hooker v. Haslam Court also determined that, although it could
dispose of the case on the basis of stare decisis, it would conduct its own independent
review “in order to obviate any further attempts to bring taint and invalidity challenges to
existing precedent.” Id.

The Court defined the question as whether the phrase “shall be elected by the
qualified voters” referred only to a contested popular election “or whether it included
other kinds of elections in which the members of the public vote, such as a referendum or
a retention election.” Id. at 426-27. It is not necessary to recount the entirety of the
Court‟s reasoning, but only to recognize that the Court held that a retention election
offers voters an opportunity to choose or elect between two alternatives and,
consequently, was consistent with the Tennessee Constitution. Id. at 428-29. The
opinion in Hooker v. Haslam was delivered on March 17, 2014. Ms. Durham filed her
complaint in this case on June 25, 2014.

The issue raised herein by Ms. Durham as to the constitutionality of the Tennessee
Plan has been decided contrary to her position. This Court, of course, is bound by
decisions of the Tennessee Supreme Court. In any event, the constitutional language Ms.
Durham relies upon no longer appears in the Tennessee Constitution, and the statutory
basis for the retention election of appellate judges has been replaced by the November
2014 amendment to that Constitution. Consequently, her arguments that the challenged
statutes violate the Tennessee Constitution should be considered moot. Nonetheless, we
6
now turn to the trial court‟s bases for dismissing the complaint herein.

IV. STANDING

The trial court granted Defendants‟ motions to dismiss Ms. Durham‟s complaint,
in part, on the basis that Ms. Durham lacks standing to challenge the statutes regarding
selection and retention of appellate court judges. In her complaint, Ms. Durham
described herself as “a voter, citizen and resident of Wilson County” and as “a party to an
appeal currently pending before the Tennessee Court of Appeals.” Holding that Ms.
Durham lacked standing, the trial court wrote:

As a voter and citizen, she has no standing to challenge the general laws
relating to the selection of the judges. As a voter and citizen, Plaintiff
asserts an interest applicable to all citizens. As such, she has no standing to
bring this suit. . . . [T]he same holds true for the Plaintiff as someone with
litigation pending in court. Here she speculates that somehow she will be
negatively impacted by a system peopled by “team players” selected as
judges by the overtly partisan system she challenges. While her status as a
person who has a case pending may be more narrow than that of a voter, it
still only places her among the scores of thousands of persons who have
cases pending in Tennessee State Courts.

The doctrine of “standing” considers whether a particular litigant is properly
situated to have a court decide issues the litigant raises in a particular action. Am. Civil
Liberties Union of Tenn. v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006) (citing Warth v.
Seldin, 422 U.S. 490, 498 (1975)). Our Supreme Court has opined that a plaintiff must
show three indispensable elements to establish standing: (1) a distinct and palpable
injury; (2) a causal connection between the claimed injury and challenged conduct; and
(3) a showing that the alleged injury can be redressed by a favorable judicial decision.
Darnell, 195 S.W.3d at 620. The Darnell Court explained that “[s]tanding . . . may not
be predicated upon an injury to an interest that the plaintiff shares in common with all
other citizens.” Id. (citing Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App.
2001)).

Ms. Durham has failed to allege any injury that is distinguishable from other
voters, citizens, or litigants. Instead, Ms. Durham complains that she, along with the
other citizens and voters of Tennessee, is denied the opportunity to select appellate court
judges, senior judges, and special judges, by popular contested elections. This alleged
injury is shared by all voters and citizens of Tennessee. As stated earlier, standing cannot
be based on an alleged injury that a plaintiff has in common with all other citizens.
Darnell, 195 S.W.3d at 620. In Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App.
7
2001), the Court of Appeals quoted with approval the following language from American
Jurisprudence 2d when addressing the issue of standing:
In determining whether the plaintiff has a personal stake sufficient to confer
standing, the focus should be on whether the complaining party has alleged
an injury in fact, economic or otherwise, which distinguishes that party, in
relation to the alleged violations, from the undifferentiated mass of the
public.

Mayhew, 46 S.W.3d at 767 (quoting 32 AM. JUR. 2D Federal Courts § 676 (1995)). The
Mayhew court continued that a plaintiff challenging the constitutionality of a statute is
required to show that he or she „“personally has sustained or is in immediate danger of
sustaining, some direct injury . . . and not merely that he [or she] suffers in some
indefinite way in common with people generally.”‟ Id. (quoting Parks v. Alexander, 608
S.W.2d 881, 885 (Tenn. Ct. App. 1980)).5

In Moncier v. Haslam, 1 F. Supp. 3d 854 (E.D. Tenn. 2014), the federal district
court for the Eastern District of Tennessee did not consider the merits of a challenge to
the Tennessee Plan because the court found the plaintiff lacked standing. Moncier, 1 F.
Supp. 3d at 861. The plaintiff wanted to appear on the August 2014 ballot as a candidate
for a position on the Tennessee Court of Criminal Appeals, even though he had not
applied to the Judicial Nominating Commission, as required by the Tennessee Plan. Id.
at 856-57. The plaintiff filed suit alleging that the Tennessee Plan violated his rights
under the First and Fourteenth Amendments to the United States Constitution because he
was denied access to the August 2014 ballot and the right to political association. Id. at
857. The district court determined that the plaintiff lacked standing, writing:

While the Court recognizes plaintiff‟s injury in that he was denied the
opportunity to be placed on the August 2014 ballot, it is difficult to find, on
the basis of his allegations and arguments, that his claim is not a
generalized grievance shared by a large class of citizens, all of whom are
denied the opportunity to be placed on the August 2014 ballot.
Undoubtedly, any Tennessean who desires to run for the office of an
appellate judge would encounter the exact same obstacles that plaintiff has
asserted here. The Court thus finds that plaintiff has failed to demonstrate
standing.

5
Ms. Durham argues she has suffered a direct injury as a result of her negative experiences
litigating her employment termination claim. However, any complaint Ms. Durham has regarding her
employment termination lawsuit, whether due to a particular judge or otherwise, should be raised in that
lawsuit, not here or in a separate action.

8
Id. at 861. The Moncier court explained that “when a plaintiff asserts that the law has not
been followed, the plaintiff‟s „injury is precisely the kind of undifferentiated, generalized
grievance about the conduct of government that [the Supreme Court] ha[s] refused to
countenance in the past.”‟ Id. at 859 (quoting Lance v. Coffman, 549 U.S. 437, 442
(2007)).

The Moncier court held that any person seeking to apply for an appellate court
position would suffer the same alleged injury as the plaintiff, affirming that a plaintiff‟s
interest must be different from not only the general public, but also from any large class
of citizens. We conclude that litigants in Tennessee courts are such a large class, in
response to Ms. Durham‟s allegation that she has standing because she is a litigant in the
2006 Lawsuit.

Accordingly, we hold that Ms. Durham has failed to allege an injury that is not
distinct from that suffered in general by other citizens subject to the same law. See
Darnell, 195 S.W.3d at 620; Thomas v. Shelby Cnty., 416 S.W.3d 389, 393 (Tenn. Ct.
App. 2011).

Finally, as stated earlier, to establish standing, a plaintiff must show a distinct and
palpable injury and a causal connection between the claimed injury and challenged
conduct. Ms. Durham has failed to allege any palpable injury. She has been unable to
point out any injury to her resulting from the method for selecting appellate judges. Her
primary complaint is a deprivation of her alleged right to vote directly in a contested
election for appellate judges. However, no such right exists. As settled by Tennessee
Supreme Court decisions construing the Tennessee Constitution, and then by amendment
of that Constitution, it is clear that no such right can be found in the Tennessee
Constitution. Any argument that such a right can be found in the United States
Constitution is baseless because, under that Constitution, federal judges are appointed for
lifetime terms and never stand for any type of election. Additionally, Ms. Durham has
had, and still has, the right to vote for or elect appellate judges in a retention election.

Ms. Durham has also argued that, somehow, the method of selecting and electing
state appellate judges has disadvantaged her in her 2006 Lawsuit. She has failed to allege
any specific injury to her resulting from that method. Since her only appearance in an
appellate court in that earlier litigation, any alleged harm would have occurred in the
Court of Appeals decision affirming Judge Harris‟s denial of her recusal motion, as
discussed below. There is a procedure for challenging that decision, and that procedure
does not include this type of collateral attack. Also, she has not and cannot allege any
specific connection between the Tennessee Plan method selection of judges and the
opinion by the panel of judges deciding her appeal.

9
 The trial court‟s dismissal of Ms. Durham‟s complaint for lack of standing is
affirmed.

V. TRIAL COURT, SPECIAL, AND SENIOR JUDGES

A. Trial Court Judges Herein

Ms. Durham appears to raise an issue specifically related to both the trial judge
who granted Defendants‟ motions to dismiss in this case as well as the trial judge who
ultimately ruled on a motion to dismiss and a motion to recuse in the 2006 Lawsuit. The
2006 Lawsuit involved a challenge by Ms. Durham to the termination of her employment
with the State of Tennessee. See Durham v. Tenn. Dep’t of Labor and Workforce Dev.,
M2014-00428-COA-R3-CV, 2015 WL 899024 (Tenn. Ct. App. Feb. 27, 2015). In that
case, Ms. Durham filed a motion to recuse Senior Judge Donald P. Harris, a defendant in
this case, who was sitting as a special judge after Judge Barbara Haynes recused herself
upon Ms. Durham‟s motion seeking the same. Id. at *3. Judge Harris denied Ms.
Durham‟s motion requesting his recusal, and Ms. Durham appealed that decision. Id. at
*9-10. The Court of Appeals in the 2006 Lawsuit described Ms. Durham‟s argument in
support of her motion to recuse Judge Harris as follows:

In her January 2014 motion, Ms. Durham contended that the “strong”
appearance of bias on the part Judge Harris, coupled with his “unlawful
appointment,” required Judge Harris to recuse himself from the matter. Ms.
Durham alleged that Judge Harris “was hand picked by the defendants” and
was neither elected nor “randomly assigned to the case.” She asserted that
Judge Harris‟s “conduct in the case” was “so far beyond the pale of
normalcy” that it could only be attributed to bias and a conspiracy between
the judge and Defendants. Ms. Durham further asserted that Judge Harris‟s
“entire employment depends upon the defendants who without oversight or
recourse can hire or fire him as they see fit.” Her argument, as we perceive
it, is that not only are the statutes governing the appointment and
assignment of special judges unconstitutional, but that any special judge
would be biased against her because the judge‟s “employment” depends
upon the State.

Id. at *10.

The Court of Appeals then rejected Ms. Durham‟s argument in support of her
motion to recuse:

Ms. Durham‟s motion to recuse contained nothing to support her
10
 allegations that Defendants “hand picked” Judge Harris. There is nothing in
the record to support Ms. Durham‟s allegations of conspiracy. On the
contrary, the record reflects that the trial court went to great lengths to
accommodate all of the parties in this matter and to move the action to trial.
To the extent that Ms. Durham relies on Judge Harris‟s position as an
employee of the State for the proposition that he has a financial interest in
the matter because he is financially compensated by the State, we note that
all of the State‟s judges are State employees. Gay v. City of Somerville, 878
S.W.2d 124, 128 (Tenn. Ct. App. 1994). . . . Finding no evidence of
particularized bias or prejudice on the part of Judge Harris, we affirm the
trial court‟s denial of Ms. Durham‟s motion to recuse.

Id. at *11 (footnote omitted).

As the trial court herein noted, Ms. Durham is attempting, in this case, to
collaterally attack the Court of Appeals‟ decision from the 2006 Lawsuit affirming that
trial court‟s judgment denying Ms. Durham‟s motion to recuse Judge Harris. As the trial
court found, this is “clearly impermissible.” The appropriate way to appeal a decision by
the Court of Appeals is to file a petition for permission to appeal with the Supreme Court,
see TENN. R. APP. P. 11, not attack the decision in a separate action. See Hood v. Jenkins,
432 S.W.3d 814, 825 (Tenn. 2013) (precluding party from making collateral attack on
prior judgment); Young v. Barrow, 130 S.W.3d 59, 67 (Tenn. Ct. App. 2003) (holding
litigant cannot collaterally attack decisions from earlier case when party could have filed
timely appeal).

Judge Walter C. Kurtz was the special trial court judge in this case. The record
does not reflect, and Ms. Durham does not contend, that she filed a motion at the trial
level asking Judge Kurtz to recuse himself. Thus, we hold that she has waived the right
on appeal to complain about the appointment of Judge Kurtz to adjudicate her case at
trial. See Alexander v. Armentrout, 24 S.W.3d 267, 272 (Tenn. 2000) (holding argument
not raised at trial may not be raised for the first time on appeal); Watson v. Watson, 309
S.W.3d 483, 497 (Tenn. Ct. App. 2009) (noting appellate court may treat issue not raised
at trial as waived).

B. Senior and Special Judges Generally

Ms. Durham challenges the statutes governing the appointment of special judges
and senior judges, alleging they are unconstitutional because they do not provide for the
election of such judges by the “qualified voters.” However, the Tennessee Constitution
specifically addresses special judges in the context of disqualification of a judge for
interest. Article VI, Section 11 provides that the legislature may make provision for the
11
appointment of special judges to hear any cause in which a judge may be disqualified.
Accordingly, the General Assembly has enacted Tenn. Code. Ann. §§ 17-2-101 et seq.
and §§ 17-2-301 et seq., which provide for the appointment of special judges and senior
judges.

The specific claim raised by Ms. Durham was decided contrary to her position in
State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567 (Tenn. Ct. App. 1994), in which the
court determined that Art. VI, Sec. 11, establishing the authority of the legislature to
provide for special judges, was not undermined by the general language of Art. VI, Sec.
4. Id. at 575.

Ms. Durham also argues that any special judge or senior judge would be inclined
to decide against her because such judge was appointed by state officials. She filed
motions asking the judges on this panel to recuse ourselves based, in part, on the same
reasoning. Those motions were denied. Ms. Durham was unable to make any allegations
that would require disqualification under the Tennessee Constitution, Art. VI, Sec. 11;
Tenn. Code Ann. § 17-2-101; or Tenn. R. Sup. Ct. Rule 10, RJC 2.11. A party
challenging the impartiality of a judge „“must come forward with some evidence that
would prompt a reasonable, disinterested person to believe that the judge‟s impartiality
might reasonably be questioned.‟” Duke v. Duke, 398 S.W.3d 665, 671 (Tenn. Ct. App.
2012) (quoting Eldridge v. Eldridge, 137 S.W.3d 1, 7-8 (Tenn. Ct. App. 2002)). Ms.
Durham has made no specific allegation that would raise any question of the impartiality
of special judges or senior judges as a group.

It is worth noting that Ms. Durham has pursued a course of seeking recusal of
sitting judges, seeking to create a conflict by suing those judges. The procedure for using
special and senior judges exists in part for the situation where a judge recuses himself or
herself. As this court stated in Durham v. Tenn. Dep’t of Labor and Workforce Dev.,
2015 WL 899024, at *11:

Assuming, for the sake of argument, that all State judges have some sort of
personal interest in the outcome of this lawsuit because they are State
employees, the “Rule of Necessity” would apply to Ms. Durham‟s motion
to recuse, absent evidence of a particularized and distinct bias, prejudice, or
appearance of impropriety. See Hooker v. Haslam, 393 S.W.3d 156, 167
n.8 (Tenn. 2012).

Finally, based upon the same reasoning we used to conclude that Ms. Durham
lacks standing to challenge the Tennessee Plan, we also hold Ms. Durham lacks standing
to challenge the statutes regarding the appointment of special judges, Tenn. Code Ann. §§
17-2-101 et seq., and/or the statutes regarding the appointment of senior judges, Tenn.
12
Code Ann. §§ 17-2-301 et seq. We affirm the trial court‟s decision to dismiss these
claims.

VI. OTHER CHALLENGES

A. Executive Order 34

On October 16, 2013, Governor Haslam issued Executive Order 34, which
established the Governor‟s Commission for Judicial Appointments for Purposes of Filling
Vacancies in the Trial and Appellate Courts in Tennessee (the “Commission”). The
Commission was created to replace the former Judicial Nominating Commission, which
“sunsetted” and wound up its affairs on June 30, 2013. Ms. Durham alleges in her
complaint that Executive Order 34 is invalid because it was not promulgated pursuant to
the provisions of the Uniform Administrative Procedures Act (“UAPA”), codified at
Tenn. Code Ann. §§ 4-5-101‒4-5-325. Ms. Durham further alleges that the Commission
violates the Open Meetings Act by meeting in secret.

The trial court properly concluded that the Governor is exempt from the
requirements of the UAPA and that the Commission created in Executive Order 34 is not
subject to the Open Meetings Act. Tennessee Code Annotated section 4-5-106(a)
specifically states that “This chapter shall not apply to . . . the governor . . . .”

The Open Meetings Act (the “Act”), codified at Tenn. Code Ann. §§ 8-44-101 et
seq., provides that “[a]ll meetings of any governing body are declared to be public
meetings open to the public at all times . . . .” Tenn. Code Ann. § 8-44-102(a).
“Governing body” is defined, in pertinent part, as “[t]he members of any public body
which consists of two (2) or more members, with the authority to make decisions for or
recommendations to a public body on policy or administration . . . .” Tenn. Code Ann.
§ 8-44-102(b)(1)(A). Our Supreme Court has explained:

[F]or the purpose of this Act, the Legislature intended to include any board,
commission, committee, agency, authority or any other body, by whatever
name, whose origin and authority may be traced to State, City or County
legislative action and whose members have authority to make decisions or
recommendations on policy or administration affecting the conduct of the
business of the people in the governmental sector.

Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976).

As the State Defendants point out, the Governor cannot be a “governing body,” as
defined, because he is not made up of two or more members. The Commission that the
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Governor established pursuant to Executive Order 34 is not a “governing body” either
because it does not meet the first prong of the definition of “public body” set out in
Dorrier v. Dark. The Commission does not derive its origin or authority from any state,
city, or county legislative action. The Commission was created by the Governor to
advise him on judicial appointments. Executive Order 34 makes clear that the
Commission is only authorized to make recommendations to the Governor on potential
candidates to be appointed to fill judicial vacancies. Its members are not authorized to
make decisions or recommendations on policy, and any recommendations on candidates
it may make are to the Governor, who is not a “public body.”

Thus, the trial court was correct in concluding that the Governor did not violate
the UAPA in promulgating Executive Order 34 and that the Commission does not operate
in violation of the Open Meetings Act because the Act does not apply to the
Commission‟s activities.

B. Conspiracy Claims

The elements of a cause of action alleging conspiracy include “(1) a common
design between two or more persons, (2) to accomplish by concerted action an unlawful
purpose, or a lawful purpose by unlawful means, (3) an overt act in furtherance of the
conspiracy, and (4) resulting injury.” Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 38
(Tenn. Ct. App. 2006) (citing Morgan v. Brush Wellman, Inc., 165 F. Supp. 2d 704, 720
(E.D. Tenn. 2001)). Allegations of conspiracy must be asserted with specificity;
conclusory allegations that are not supported by material facts are not sufficient to state a
conspiracy claim. Id.

Ms. Durham‟s complaint refers to conspiracy in only two paragraphs:
¶73. The actions of the defendants in creating and implementing the
Tennessee Plan, Senior and Special Judge statutes, and conspiring with one
another to maintain their own individual property right interest in their
appointments deprives plaintiff of her constitutional rights under the color
of state law in violation of 42 U.S.C. § 1983.

¶89. For all of the above stated reasons, the Tennessee Plan is patently
unconstitutional and the defendants, Democratic and Republican parties are
aware of the same. These defendants for the purpose of commercial gain
actively conspire with the remaining defendants to violate Ms. Durham‟s
constitutional rights under color of law. The defendants make false
statements to the public concerning the true nature of retention elections;
they conceal information that is necessary for a fair assessment of the
judicial candidates and the election process; they are in a fiduciary position
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 in relation to voters; voters rely upon their fraudulent statements to their
detriment. The defendants have a duty to deal honestly with Ms. Durham, a
voter.

The trial court found these allegations “conclusory and factless.” The court wrote:

Plaintiff contends that the parties “conspire” with the other
Defendants to maintain a system of judge selection and “the
Defendants‟ actions further their own individual interest and
not the interests of Ms. Durham.” This allegation does not
meet specificity requirements. Conspiracy claims must be
pled with specificity, conclusory allegations are not sufficient.

As the trial court pointed out, the political parties are barred from any formal
involvement in the judicial selection process. Executive Order Number 34 specifically
excludes anyone from serving on the Commission who holds an office in any political
party or political organization.6 When the Judicial Nominating Commission was still in
force, members of political parties were barred from participating in that commission as
well. See Tenn. Code Ann. § 17-4-104(a) (Supp. 2015) (“[n]o member of the judicial
nominating commission shall be a salaried office holder of this state or the United States,
nor shall any member of the commission hold any office in any political party or political
organization”); Tenn. Code Ann. § 17-4-104(b) (Supp. 2015) (“[a]ny member of the
judicial nominating commission who becomes a salaried office holder of this state or the
United States or who accepts any office in any political party or political organization
ipso facto vacates the member‟s office as a member of the commission”). Moreover, the
political parties are private organizations, not state actors, and, therefore, are not subject
to federal constitutional claims based on 42 U.S.C. § 1983. See Federspiel v. Ohio
Republican Party State Cent. Comm., 85 F.3d 628, 628 (6th Cir. 1996) (affirming trial
court‟s dismissal of § 1983 case because Republican party is not state actor); Schneller v.
Philadelphia Newspapers, Inc., 577 Fed. Appx. 139, 143 (3rd Cir. 2014) (holding that
Republican party is not state actor subject to liability pursuant to 42 U.S.C. § 1983).

Moreover, the Tennessee Democratic Party and the Tennessee Republican Party

6
Executive Order No. 34 states at section 2(l) that:

Any member of the Commission who becomes a salaried office holder of this State or the
United States, or who accepts any office in any political party or political organization,
vacates the member‟s office as a member of the Commission.

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are barred from any formal involvement in the judicial selection process, which is the
basis of Ms. Durham‟s complaint. Ms. Durham fails to specify in her complaint
particular acts by particular individuals that were unlawful and that caused her to suffer
harm. Accordingly, the trial court correctly dismissed the claims against the political
parties.

Absent the necessary specificity of particular acts by individuals who shared a
common design to accomplish an unlawful purpose through concerted action, or a lawful
purpose through unlawful means, resulting in injury to Ms. Durham, her conspiracy
claims against State Defendants must also fail. None of the acts she alleged occurred are
unlawful in purpose or means. Additionally, she lacks standing to bring these claims.

We conclude the trial court acted properly in dismissing Ms. Durham‟s conspiracy
claims.

C. Amendment 2

The final issue Ms. Durham raises on appeal concerns the amendment of Article
VI, Section 3 of the Tennessee Constitution that occurred as a result of the November
2014 general election. Ms. Durham argues in her brief that this amendment is void. The
only reference Ms. Durham makes in her complaint to what she refers to as “Amendment
2” is the following:

¶91. In yet another attempt to deceive Tennessee voters, the defendants
caused to be placed upon the November 2014 ballot a constitutional
amendment referendum that if passed seeks to take away Ms. Durham‟s
right to elect appellate judges. Instead of focusing their efforts on
government business, the defendants use taxpayer resources to campaign
for the passage of the amendment because the amendment is in their
personal best interest. For all of the above stated reasons, the amendment if
passed will also be unconstitutional.

As discussed above, prior to the amendment of Article VI, Section 3, Ms. Durham
did not have the right to vote in a contested, popular election for appellate judges. The
allegations in her complaint are not based on any factual allegations and are opinion and
conclusion only. In any event, the amendment was adopted by the voters.

In her complaint, Ms. Durham fails to set forth any claim for which relief can be
granted with respect to the amendment of Article VI, Section 3. Accordingly, we reject
Ms. Durham‟s allegation that the amendment and the resulting election is void.

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 VII. CONCLUSION

For the reasons set forth above, we affirm the trial court‟s judgment in all respects.
Costs of this appeal shall be taxed to the appellant, Sherrie L. Durham, for which
execution shall issue if necessary.

_________________________________
PATRICIA J. COTTRELL, S. JUDGE

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