Session September 8, 2016
by Permission from the Court of Appeals Chancery Court for
Roane County No. 2014-105 Jon Kerry Blackwood, Senior Judge.
appeal addresses the authority of a county election
commission to make a factual determination on the
qualifications of a candidate seeking to be placed on a
ballot. In this case, the defendant filed a petition to run
for circuit court judge. A registered voter filed a complaint
with the county election commission arguing that the
defendant did not reside in the judicial district and,
consequently, should not be placed on the ballot. The
election commission held a hearing on the complaint and voted
unanimously to place the defendant on the ballot. The
defendant won the election. The plaintiff, the
defendant's defeated opponent in the election, filed this
election contest based solely on the defendant's alleged
failure to meet the residency requirement. The trial court
and the Court of Appeals dismissed the complaint. Both held
that the substance of the plaintiff's complaint was a
challenge of the election commission's administrative
decision on the defendant's residency, governed by the
60-day statute of limitations in Tennessee Code Annotated
section 27-9-102 for a petition for a writ of certiorari.
Because the complaint was not filed within sixty days of the
county election commission's final decision, it was
dismissed as untimely. On appeal to this Court, we hold that,
by necessary implication, the county election commission had
the authority under Tennessee's election statutes to hold
a quasi-judicial hearing to make a factual determination to
resolve the voter's complaint challenging the
defendant's residency. We also hold that the county
election commission's decision to certify the defendant
as a qualified candidate on the ballot was a final
administrative decision subject to judicial review by
common-law writ of certiorari. The plaintiff, who had actual
notice of the county election commission's actions, was
"aggrieved" by the election commission's final
administrative decision within the meaning of Tennessee Code
Annotated section 27-9-101 and, thus, had standing to file a
petition for a writ of certiorari. Though the plaintiff's
complaint was styled as an election contest, the gravamen of
the complaint is a request for judicial review of the county
election commission's decision, reviewable through a
petition for a writ of certiorari and subject to the 60-day
statute of limitations for such a petition. Because the
plaintiff filed his complaint well after expiration of the
60-day period, we affirm the lower courts' dismissal of
the complaint as untimely.
R. App. P. 11 Appeal by Permission; Judgment of the Chancery
Court and Court of Appeals Affirmed
William Thomas McFarland, Kingston, Tennessee, appellant, Pro
Jennifer E. Raby, Patrick C. Cooley, and J. Polk Cooley,
Kingston, Tennessee, for the appellee, Michael S. Pemberton
Herbert H. Slatery III, Attorney General and Reporter;
Andrée Blumstein, Solicitor General; and Ryan A. Lee,
Assistant Attorney General, for the appellees, Roane County
Election Commission; Lowell P. Malmquist, Vickie Watts, Ralph
DePorter, Celia Simon, and James Ryan, Roane County Election
Commissioners; and Mark Goins, Tennessee Coordinator of
Kirby, J., delivered the opinion of the Court, in which
Jeffrey S. Bivins, C.J., and Roger A. Page, JJ., joined.
Cornelia A. Clark, J., filed a dissenting opinion. Sharon G.
Lee, J., joined in Justice Clark's dissenting opinion and
also filed a separate dissenting opinion.
and Procedural Background
appeal concerns a judicial election for the Ninth Judicial
District in East Tennessee. The Ninth Judicial District
includes four counties: Loudon, Meigs, Morgan, and Roane.
February 3, 2014, Defendant/Appellee Michael S. Pemberton
filed a nominating petition with the Roane County Election
Commission ("Election Commission") to run for
Circuit Court Judge for the Ninth Judicial District. The
election was to take place on August 7, 2014. In his
petition, Mr. Pemberton listed as his residence an address in
Roane County ("Roane County home"). It is
undisputed that Mr. Pemberton purchased the Roane County home
in January 2013. At all times pertinent to this appeal, Mr.
Pemberton owned a home in Knox County in addition to the
Roane County home.
William Thomas McFarland also filed a petition as a candidate
for election as Circuit Court Judge for the Ninth Judicial
District in the same election.
March 31, 2014, a resident of the Ninth Judicial District,
Willis Hall, went to the Election Commission for the purpose
of challenging Mr. Pemberton's candidacy based on his
residency. Article VI, section 4 of the Tennessee
Constitution provides that every candidate for circuit court
judge "shall[, ] before his election, have been a
resident . . . of the circuit or district one year."
Tenn. Const. art. VI, § 4 (emphasis added). The Roane
County Administrator of Elections, Charles Holiway ("the
Administrator"), told Mr. Hall he could either obtain an
Elections Complaint Form online or the office could print one
for him. He also told Mr. Hall at that time that someone else
had already contacted the Tennessee Election Commission in
Nashville, Tennessee, raising the issue of Mr.
Pemberton's residency. According to the Administrator,
Mr. Hall left his office without filing anything, but he
returned later that day with a completed Elections Complaint
Form and filed it against Mr. Pemberton. Mr. Hall averred
in his complaint that Mr. Pemberton did not meet the
constitutional residency requirement because he was "not
a resident of the [Ninth Judicial] district." Mr. Hall
asserted that, for this reason, Mr. Pemberton "should
not be on the ballot" for circuit court judge.
response to Mr. Hall's complaint, the Administrator
contacted the Tennessee Election Commission about Mr.
Hall's allegations. The record reflects that Mark Goins,
the Tennessee Election Coordinator ("Coordinator"),
responded by letter indicating that the Roane County Election
Commission needed to resolve the issue of Mr. Pemberton's
the Election Commission conducted an independent
investigation to determine whether Mr. Pemberton was a
resident of Roane County. To that end, the Election
Commission elicited documentary evidence from both Mr. Hall
and Mr. Pemberton and set the matter for a public hearing at
its regular meeting on April 28, 2014. Notice of the hearing
was published in a local paper, the Roane County News.
McFarland was aware of the upcoming Election Commission
hearing on Mr. Pemberton's residency; in fact, at the
time, he served as the Roane County Attorney and in that
capacity was a legal advisor to the Election Commission. Mr.
McFarland did not serve as legal advisor to the Election
Commission during the hearing on Mr. Pemberton's
residency, however, based on a conflict of
interest. As noted above, by the time of the
hearing, Mr. McFarland was also a candidate for the position
Mr. Pemberton sought. Nevertheless, Mr. McFarland did not
participate in the Election Commission hearing in any
Hall retained counsel to represent him at the
hearing. Mr. Pemberton represented himself at the
hearing. Prior to the hearing, both Mr. Hall and Mr.
Pemberton submitted materials to the Election Commission
regarding Mr. Pemberton's residency. Those materials
included U-Haul receipts, vehicle and voter registrations,
Mr. Pemberton's driver's license, and utility bills.
All of the submissions were made "part of the official
minutes of the [Election Commission]
hearing was conducted as scheduled on April 28, 2014. Mark
Goins, the Tennessee Coordinator of Elections, attended via
speakerphone. At the outset, the Election Commission
read aloud Tennessee Code Annotated section 2-2-122, which
sets forth several principles for determining residency for
purposes of the election statutes. The chair indicated that
the statute was read "so everybody understands what we
are talking about here."
Election Commission then permitted Mr. Hall and Mr. Pemberton
to each present a fifteen-minute argument and answer
questions from the commission members. Neither was allowed to
ask questions of the other.
counsel, Mr. Hall argued that, during all or part of the year
preceding the election (August 8, 2013 through August 7,
2014), Mr. Pemberton was actually a resident of Knox County.
Counsel for Mr. Hall noted that Mr. Pemberton owned a 4,
500-square-foot home in Knoxville-outside the Ninth Judicial
District-and that he and his family had lived in the Knox
County home for some period of time. Mr. and Mrs. Pemberton
both worked in Knoxville, and their five-year-old son
attended kindergarten in a Knox County school near Mrs.
Pemberton's workplace. Counsel for Mr. Hall conceded that
Mr. Pemberton also owned a home in Roane County during the
relevant time period, but he characterized it as a "lake
house" or a "vacation place" and pointed out
that it was located fifty miles from Mr. Pemberton's law
office. Based on these facts and other evidence in the
record, counsel for Mr. Hall argued that the Roane County
home was not Mr. Pemberton's primary residence, so he was
not qualified to be a candidate for a circuit judge position
in the Ninth Judicial District.
response, Mr. Pemberton pointed out that he was born in Roane
County, that he had lived there most of his life, and that
his parents still lived in Roane County and were active in
the community. He conceded that he and his wife and child had
moved to Knoxville for a "20-month period" because
it was closer to work. Nevertheless, Mr. Pemberton claimed,
he purchased the Roane County home in January 2013 with the
intention of returning to live there permanently. Mr.
Pemberton said: "Knoxville to me is a place to sleep . .
. and to work." He estimated to the Election Commission
that he spent about 64% of his nights in his Roane County
home, and he explained how his utility bills supported his
assertion that he and his family lived primarily in the Roane
County home. Mr. Pemberton argued that, under the law,
residency is established by "intent plus action."
He alleged that he had the requisite intent to reside in
Roane County and had acted on that intent by purchasing the
Roane County home and moving into it.
Election Commission permitted other persons who attended the
hearing to register to speak at the hearing. These so-called
"secondary speakers" were each permitted three
minutes to address the Election Commission. All of the
secondary speakers at the hearing spoke in support of Mr.
Pemberton. They generally corroborated Mr. Pemberton's
assertion that he intended to reside permanently in Roane
County, not Knox County. Mr. Pemberton's wife, Dana
Pemberton, was among the secondary speakers. She reaffirmed
that, at all relevant times, her husband intended to make the
Roane County home their permanent address. She explained that
their son attended a Knox County school so that she could be
nearby during the day in case of an emergency.
conclusion of the hearing, the five Commissioners voted
unanimously in favor of placing Mr. Pemberton on the ballot.
They offered no explanation in connection with the vote. The
decision to place Mr. Pemberton on the ballot as a candidate
for Circuit Court Judge was included in the minutes of the
Election Commission meeting for that day. Later that same
day, the Election Commission certified Mr. Pemberton and Mr.
McFarland as the only two candidates on the ballot for the
Ninth Judicial District circuit judge position.
16, 2014, Mr. Hall filed a complaint in the Roane County
Chancery Court for quo warranto and for declaratory judgment,
asking the trial court to declare Mr. Pemberton disqualified
as a candidate for circuit judge for lack of the requisite
residency. The complaint named Mr. Pemberton, the Election
Commission, and the Commission members as defendants. In it,
Mr. Hall directly challenged the Election Commission's
decision on Pemberton's residency and asked that the
Commission's vote to place Mr. Pemberton on the
"ballot be designated as constituting an exercise of
power not conferred by law and/or being conducted outside the
laws and regulations governing elections, and, therefore,
invalid and void ab initio." Subsequently, Mr. Hall
filed a motion to amend the complaint to include a petition
for writ of certiorari pursuant to Tennessee Code Annotated
section 27-9-101 (2014).
23, 2014, the chancery court entered an order denying Mr.
Hall's motion to amend and dismissing his complaint. The
chancery court held that Mr. Hall did not have standing to
file the complaint because he was not "aggrieved"
by the Election Commission's decision within the meaning
of section 27-9-101. Mr. Hall did not appeal the chancery
the controversy over Mr. Pemberton's residency played out
in the local news media, fueled by comments by both
candidates. In early April 2014, Mr. Pemberton told the Roane
County News that he was "not the least bit concerned
about Mr. McFarland's latest attack" based on his
residency. Mr. McFarland pointed out that a private citizen
had filed the complaint against Mr. Pemberton and added that
"people are rightly concerned about a candidate's
qualifications." Mr. McFarland explained: "You have
to be qualified to run for this office or any other office,
and if you do not live in the district, then you are not
qualified to run for this office. It's not an attack. I
think people want to know if [Mr. Pemberton is]
qualified." Around the same time, the Knoxville News
Sentinel quoted Mr. McFarland as saying, "It appears to
me that Mr. Pemberton has not lived in this district for [the
required] time period." Mr. Pemberton countered,
"Rockwood [in Roane County] is my home. It has always
been my home." Mr. Pemberton acknowledged, however, that
he also "happens to have a place in Knoxville where I
stay on occasion."
21, 2014, after Mr. Hall filed his chancery court complaint,
the Roane County News reported: "The controversy
surrounding the residency of circuit court judge candidate
Mike Pemberton is not over." The article stated that Mr.
Pemberton had accused Mr. McFarland "of being behind the
chancery court complaint." Mr. McFarland responded,
"I haven't seen the complaint, but if it's a
complaint that says he does not live in the district, I agree
with it, and so does [sic] a lot of other people." After
the chancery court dismissed Mr. Hall's complaint, Mr.
McFarland told the Roane County News that he was glad because
dismissal of the lawsuit "leaves the issues for the
voters to decide." Mr. Pemberton's Roane County
residency, or lack thereof, remained an issue in the judicial
campaign; various posts on the "Tom McFarland for
Circuit Court Judge" Facebook page stated: "Vote
for Tom! He lives here!" and "We want a judge that
election was conducted as scheduled on August 7, 2014. Mr.
Pemberton won; he received 13, 357 votes (50.6%) to Mr.
McFarland's 13, 017 (49.4%).
August 20, 2014, Mr. McFarland filed an election contest in
the Roane County Chancery Court pursuant to Tennessee Code
Annotated section 2-17-101, et seq. Mr. McFarland named as
defendants Mr. Pemberton, the Roane County Election
Commission, the five members of the Election Commission in
their official capacities, and Mark Goins in his official
capacity as the Tennessee Coordinator of Elections. The
challenge to the election was premised solely on Mr.
McFarland's assertion that Mr. Pemberton did not satisfy
the constitutional residency requirement and, therefore, was
not qualified to hold the office of circuit court judge for
the Ninth Judicial District. On this basis, Mr. McFarland
asked the trial court to declare the election void pursuant
to sections 2-17-112 and 2-17-113.
September 8, 2014, Mr. Pemberton filed a motion to dismiss
or, in the alternative, for summary judgment. Mr. Pemberton
asserted in the motion that he was entitled to judgment as a
matter of law based on (1) the 60-day statute of limitations
for appealing an administrative decision (Tennessee Code
Annotated section 27-9-102 (2014)), (2) the doctrines of
res judicata and collateral estoppel, and (3) gross laches. A
few days later, the Election Commission
defendants filed a motion for summary judgment; the
grounds in that motion were limited to the argument that Mr.
McFarland's complaint was time-barred under section
27-9-102 because he failed to file a timely challenge to the
Election Commission's decision on Mr. Pemberton's
response, Mr. McFarland argued, among other things, that he
was not obligated to appeal the Election Commission's
decision on Mr. Pemberton's residency because the
Election Commission did not have the authority to hold a
hearing and resolve the citizen complaint filed by Mr. Hall.
Mr. McFarland asserted that the Election Commission is a
ministerial body, authorized to perform only ministerial
tasks, and does not have the authority to conduct a
quasi-judicial hearing. He argued that residency is a mixed
question of law and fact, so the Election Commission should
have deferred the question to a court of competent
jurisdiction rather than holding a hearing and resolving the
issue itself. Because the Election Commission's actions
were unauthorized, Mr. McFarland maintained, the decision was
void, he was not obliged to appeal the decision, and the
decision had no preclusive effect under the doctrines of res
judicata or collateral estoppel. Mr. McFarland further argued
that the facts did not support a dismissal on the grounds of
September 30, 2014, the trial court held a hearing on the
defendants' motions to dismiss and for summary
judgment. On October 9, 2014, it entered an order
granting the motions and dismissing Mr. McFarland's
complaint. The trial court held that the hearing conducted by
the Election Commission was a quasi-judicial act and that the
decision resulting from that hearing was a final
administrative decision. The proper method of challenging the
Election Commission's decision, the trial court held, was
by filing a petition for writ of certiorari pursuant to
Tennessee Code Annotated section 27-9-102. The trial court
noted that section 27-9-102 requires the petition for writ of
certiorari to be filed within sixty days of the final
decision. Because Mr. McFarland did not file a petition for
writ of certiorari within sixty days of the Election
Commission's final decision on Mr. Pemberton's
residency, the trial court held that his claim was
time-barred. Mr. McFarland appealed.
Court of Appeals affirmed the decision of the trial court.
See McFarland v. Pemberton, No.
E2014-02176-COA-R3-CV, 2015 WL 7166407, at *8 (Tenn. Ct.
App. Nov. 16, 2015), perm. app. granted (Tenn. Mar. 24,
2016). The appellate court first agreed with the trial court
that the Election Commission hearing was a quasi-judicial
proceeding and that its decision on Mr. Pemberton's
residency was a final administrative decision. Id.
at *3-4. It held specifically that the Election Commission
acted within its statutory authority in holding the hearing
to determine whether Mr. Pemberton was qualified to be placed
on the ballot. Id. at *5-6.
appellate court then determined that Mr. McFarland was a
party who was "aggrieved" by the Election
Commission's decision because "he had a 'special
interest in the agency's final decision.'"
Id. at *7 (quoting Wood v. Metro. Nashville
& Davidson Cnty. Gov't, 196 S.W.3d 152, 158
(Tenn. Ct. App. 2005)). Noting that the sole issue raised in
Mr. McFarland's election challenge was Mr.
Pemberton's residency, the appellate court said that the
substance of Mr. McFarland's complaint was "a
challenge to the Commission's quasi-judicial proceeding
and final determination" and the appropriate method for
challenging that decision was through a writ of certiorari
under section 27-9-101. Id. Because Mr. McFarland
did not file his challenge to the administrative decision
within sixty days, the appellate court concluded that Mr.
McFarland's claim "is time-barred pursuant to Tenn.
Code Ann. § 27-9-102" and, consequently, the court
was without jurisdiction to adjudicate his
claim. Id. at *8 Accordingly, the
Court of Appeals affirmed the trial court's dismissal of
his complaint. Id.
granted Mr. McFarland permission to appeal to this Court.
on Appeal and Standard of Review
decision presented for our review is the trial court's
grant of summary judgment. We review a grant of summary
judgment de novo, with no presumption of correctness in the
trial court's decision. Rye v. Women's Care Ctr.
of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015).
Summary judgment is appropriate only when "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." Tenn. R. Civ. P. 56.04. On appeal, we
must "make a fresh determination of whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied." Rye, 477 S.W.3d at 250.
order granting this appeal, we instructed the parties to
brief the following issues:
(1) Did the county election commission have the authority to
convene a hearing in response to a citizen's complaint
and determine whether a candidate for the position of Circuit
Court Judge for the Ninth Judicial District satisfied the
constitutional residency requirement set out in article VI,
section 4 of the Tennessee Constitution?
(2) Is the county election commission's determination
that the candidate for Circuit Court Judge for the Ninth
Judicial District satisfied the constitutional residency
requirement a quasi-judicial act that is subject to review
pursuant to Tennessee Code Annotated section 27-9-101?
(3) Did the Court of Appeals err in holding that the
plaintiff, although not a party to the petition seeking
review pursuant to section 29-9-101, nevertheless qualifies
as an aggrieved party for purposes of seeking review pursuant
to section 27-9-101?
(4) Did the Court of Appeals err in holding that the
plaintiff's failure to seek review of the county election
commission's determination pursuant to section 27-9-101
now bars the plaintiff from filing an election contest
pursuant to Tennessee Code Annotated section 2-17-101?
these issues involves a material factual dispute. Rather, all
involve the interpretation of statutes and other issues that
are purely legal in nature. Consequently, we address the
issues in this appeal de novo, giving no deference to the
decisions of the lower courts. See Tennessean v. Metro.
Gov't of Nashville, 485 S.W.3d 857, 862-63 (Tenn.
Background on Election Code
background for our analysis of the issues presented in this
appeal, a brief review of the structure of Tennessee's
Election Code is in order.
1972, Tennessee's General Assembly enacted the Election
Code "to regulate the conduct of all elections."
Tenn. Code Ann. § 2-1-102 (2014). The stated goals are
to secure "freedom and purity of the ballot, " to
require voters "to vote in the election precincts in
which they reside, " to promote "[i]nternal
improvement . . . by providing a comprehensive and uniform
procedure for elections, " and to encourage
"[m]aximum participation by all citizens in the
electoral process." See id.
is well settled that the power of the Legislature, except as
restrained by the Constitution, is supreme . . . in the
creation of subordinate governmental agencies, and in
prescribing their powers and duties." Waldaur v.
Britton, 113 S.W.2d 1178, 1181 (Tenn. 1938) (quoting
White v. Decatur, 144 So. 873, 874 (Ala. 1932)). In
exercising its power to regulate elections, the General
Assembly enacted chapter eleven of the Election Code, which
created the state election commission. Tenn. Code Ann. §
2-11-101 (2014); see Peterson v. Dean, 777 F.3d 334,
337-38 (6th Cir. 2015) (describing the statutory hierarchy of
state and county election officials). The seven members of
the state election commission are elected "by joint
resolution of both houses of the general assembly."
Tenn. Code Ann. § 2-11-104(b) (2014). By statute, the
state election commission is bipartisan; four of its members
must be from the majority political party and three must be
from the minority political party. Id. §
turn, the state election commission appoints the members of
the county election commissions. Each county has its own
election commission, with five members to each commission.
Id. § 2-12-101(a) (2014). Similar to the state
election commission, the county election commissions are
bipartisan, each with three members from the majority
political party and two from the minority political party.
County election commission members hold office for two years.
Id. Each county election commission appoints a
county administrator of elections "who shall be the
chief administrative officer of the commission and who shall
be responsible for the daily operations of the office and the
execution of all elections." Id. §
2-12-201(a); see id. § 2-12-116(1).
the Election Code requires Tennessee's Secretary of State
to appoint a Coordinator of Elections
("Coordinator"). The Coordinator serves as the
"chief administrative election officer of the
state." Id. § 2-11-201(b). Tennessee Code
Annotated section 2-11-202 lists the duties of the
Coordinator. See generally id. § 2-11-202
(2014). One of the Coordinator's many duties is to
"[a]dvise election commissions, primary boards, and
administrators of elections as to the proper methods of
performing their duties." Id. §
2-11-202(a)(3). The Coordinator is also required to
"[a]uthoritatively interpret the election laws for all
persons administering them." Id. §
2-11-202(a)(4). In addition, the Coordinator must
"maintain uniformity in the application, operation and
interpretation of the election code, " id.
§ 2-11-201(b), and "may make rules and regulations
as necessary to carry out the provisions of the election
code, " subject to the Secretary of State's
concurrence, id. § 2-11-201(c).
to this case, the Election Code requires the Coordinator to
"[e]nsure that all election commissions within the state
shall prohibit any person from becoming qualified to have
such person's name placed on any ballot wherein such
person is seeking to be nominated or elected to an office for
which such person is ineligible." Id. §
2-11-202(a)(12). Under the statutes, the county election
commissions must have ballots printed "on which shall be
only the names of candidates who have qualified."
Id. § 2-5-202; see id. § 2-5-204
(indicating that "[e]ach qualified candidate's name
shall be placed on the ballot as it appears on the
candidate's nominating petitions" except under
Election Code further provides that meetings by boards and
commissions created under the election statutes must be open
to the public and are subject to the Tennessee Open Meetings
Act, Tennessee Code Annotated section 8-44-101, et seq.
Id. § 2-1-113(a)(2) (2014). The boards and
commissions must give notice of meetings, and the official
minutes of such meetings are to "be kept in permanent
form and shall include the vote of each member on all issues
passed upon. Minutes shall be available to the public for
examination at reasonable times." Id. §
appeal, Mr. McFarland argues that, by conducting a
quasi-judicial hearing to resolve the complaint on Mr.
Pemberton's residency, the Election Commission exceeded
its authority. Mr. McFarland cites two bases for this
argument: (1) the Election Commission made a determination on
a constitutional issue, thus violating the separation of
powers provisions in the Tennessee Constitution, Article II,
sections 1 and 2, and (2) the Election Code does not
specifically grant the Election Commission the authority to
perform anything other than ministerial tasks, nor does it
grant authority to determine a candidate's residency by
necessary implication. We address these issues in turn.
Separation of Powers
McFarland first argues that, in making a determination on the
question of Mr. Pemberton's residency, the Election
Commission violated the separation of powers provisions in
the Tennessee Constitution, Article II, sections 1 and
2. In support, Mr. McFarland cites this
Court's decision in City of Memphis v. Shelby Cnty.
Election Comm'n, 146 S.W.3d 531, 533 (Tenn. 2004).
of Memphis, the City passed an ordinance which, if approved
by the voters in a referendum, would have permitted the City
to levy an additional privilege/payroll tax. City of Memphis,
146 S.W.3d at 534. The ordinance was duly enacted by the
Memphis City Council, signed by the City Mayor, and submitted
to the Shelby County Election Commission for placement on the
local election ballot. However, Tennessee's Coordinator
of Elections sent a letter to the Shelby County Election
Commission declaring that he would not approve any ballot
that contained the ordinance because it was
"unconstitutional unless and until the General Assembly
authorizes cities to impose such a tax." Id.
(quoting letter from the Coordinator to the Shelby County
Election Commission). After the county election commission
received the Coordinator's letter, it refused to place
the ordinance on the ballot. The City then filed a petition
in chancery court, asking the court to require the county
election commission to put the ordinance on the ballot. After
the trial court refused to do so, the City was granted
permission to appeal directly to the Tennessee Supreme
Court. Id. at 534-35.
Court in City of Memphis reversed the trial court's
decision. It held that neither the Coordinator of Elections
nor the county election commission had the authority to
refuse to include a duly enacted referendum question on a
ballot based on either's opinion that the measure was
"substantively unconstitutional." Id. at
536-38. In reaching that conclusion, the Court noted that
nothing in the Election Code granted either the Coordinator
or the county election commission the authority to make a
substantive constitutional ruling. It held: "Determining
the substantive constitutionality of such measures is a
function reserved for the judicial branch of
government." Id. at 536. The City of Memphis
Court observed that any statute that would purport to grant
the Coordinator or the county election commission "such
broad interpretive authority would run afoul of the principle
of separation of powers embodied in the Tennessee
Constitution, " because only the judiciary is empowered
to rule on the constitutionality of a legislative enactment.
Id. at 537. Describing the Coordinator and the
members of the county election commissions as
"ministerial officers, " the Court concluded that
such officers "are prohibited from exercising this
uniquely judicial function" of determining the
constitutionality of statutes and ordinances. Id. at
argues that City of Memphis applies in this case. Because the
residency requirement at issue emanates from the Tennessee
Constitution, Article VI, section 4, the argument goes,
resolving an issue regarding a candidate's residency is
tantamount to deciding a constitutional issue. This argument
fails. The relevant constitutional language is clear; it
requires a candidate for circuit judge to "have been a
resident . . . of the circuit or district one year."
Tenn. Const. art. VI, § 4. The question presented to the
Election Commission in Mr. Hall's complaint required no
interpretation of this provision. The issue presented was
merely factual, namely, "the factual question of whether
the Candidate resides in [Roane] County." Knox Cnty.
Election Comm'n v. Breeding, E2012-01094-COA-R3-CV,
2012 WL 2146310, at *3 (Tenn. Ct. App. June 14, 2012)
(emphasis in original); see also Huskey v. Crisp,
865 S.W.2d 451, 454 (Tenn. 1993) (holding that the legal
definition of "residence" varies depending on
context and approving of the appellate court's conclusion
that "the issue of residence was a question of fact for
the jury to determine"); Asberry v. Garrett,
No. 01-A-01-9511-CH-00515, 1996 WL 334366, at *2 (Tenn. Ct.
App. June 19, 1996) ("The issue of one's residence
is a question of fact.").
City of Memphis is not applicable in this case, and we reject
Mr. McFarland's argument that the Election
Commission's decision on Mr. Pemberton's residency
violated the doctrine of separation of powers.
Election Commission Authority
McFarland next argues that the Election Commission had no
authority to make a final administrative decision on Mr.
Pemberton's residency. He first asserts that the Election
Commission's actions were legislative because the
Commission "made new law rather than execute one already
in existence." Appellant's Brief at p. 12, McFarland
v. Pemberton, No. 2014-105 (Tenn. Apr. 22, 2016). Even if the
Election Commission's actions were not legislative, Mr.
McFarland argues, the Election Commission still overstepped
its authority because county election commissions are
authorized to perform only ministerial duties, and the
decision on Mr. Pemberton's residency went beyond the
performance of a ministerial duty.
response, Mr. Pemberton and the Election Commission
defendants maintain that the Election Commission proceedings
were quasi-judicial in nature, not legislative, because the
Commission merely applied the law as written and did not
enact any new laws. They note that the Election Code
authorizes the Election Commission to perform many tasks that
are not ministerial in nature. Because the Election Code
expressly requires the Election Commission to ensure that
only qualified candidates are placed on the ballot, they
argue that the Election Commission is, by necessary
implication, also authorized to do what is needed to carry
out this express duty, including making a quasi-judicial
determination on whether a candidate is qualified to be on
first ascertain the nature of the proceedings conducted by
the Election Commission in this case, and then we address
whether the Election Commission's actions were within its
Nature of the Election Commission Proceedings
governmental act is "legislative" if it creates new
laws, such as ordinances or regulations. Fallin v. Knox
Cnty. Bd. of Comm'rs, 656 S.W.2d 338, 342 (Tenn.
1983) (contrasting legislative actions with those that are
quasi-judicial). Applying this principle, we have little
difficulty concluding that the proceedings conducted by the
Election Commission were not legislative in nature. In making
a determination on Mr. Pemberton's residency, at no time
did the Election Commission purport to create new law.
Consequently, we reject Mr. McFarland's argument that the
Election Commission's actions were legislative in nature.
agree, however, with Mr. McFarland that the Election
Commission actions at issue in this appeal were not merely
"ministerial." It appears instead that the Election
Commission's determination on Mr. Pemberton's
residency was "quasi-judicial" in nature. This
Court has described the difference between a ministerial act
and a quasi-judicial act as follows:
The law recognizes certain duties of public officials as
ministerial and others as discretionary or quasi judicial. .
. . "[W]hile it is not always easy to determine where
the line of distinction (demarcation) lies between a
ministerial act and an act involving the exercise of
judgment, the distinction . . . (between) merely ministerial
and judicial and other official acts is generally said to be
that, where the law prescribes and defines the duties . . .
to be performed with such precision and certainty as to leave
nothing to the exercise of discretion or judgment, the act is
ministerial, but where the act to be done involves the
exercise of discretion and (or) judgment it is not to be
deemed merely ministerial."
State ex rel. Hammond v. Wimberly, 196 S.W.2d 561,
563 (Tenn. 1946) (quoting State ex rel. Millers Nat'l
Ins. Co. v. Fumbanks, 151 S.W.2d 148, 150 (Tenn. 1941));
accord Mayor of City of Jackson v. Thomas, 313
S.W.2d 468, 480-81 (Tenn. 1957) (comparing various
definitions of "ministerial act" as contrasted with
"judicial act"); see City of Memphis, 146 S.W.3d at
535 (quoting Black's Law Dictionary 52 (7th ed. 1999))
("A 'strictly ministerial duty' is defined as:
'A duty that is absolute and imperative, requiring
neither the exercise of official discretion nor
judgment.'"); State ex rel. Stewart v. Marks, 74
Tenn. (6 Lea) 12, 20 (1880) (noting that some duties of the
board of inspectors were ministerial, such as counting votes,
but determining which votes were genuine and intelligible was
a quasi-judicial act).
the Election Commission's factual determination on Mr.
Pemberton's residency required the exercise of discretion
and judgment. The Election Commission conducted a hearing at
which the members considered statements by Mr. Hall's
attorney and by Mr. Pemberton, heard remarks by other
scheduled speakers, and weighed utility bills and various
other indicia of where Mr. Pemberton had resided for the year
preceding the election. At the conclusion of the hearing, the
Election Commission members took a vote and unanimously voted
to place Mr. Pemberton on the ballot. Under all of these
circumstances, the Election Commission's factual
determination on Mr. Pemberton's residency and the
resulting decision to place Mr. Pemberton on the ballot as a
candidate for circuit judge constituted the performance of a
Election Commission as Ministerial Body
McFarland contends that county election commissions are
merely ministerial bodies, with no authority to undertake
tasks that are not ministerial in nature. Thus, he asserts,
the Election Commission had no authority to conduct a
quasi-judicial hearing and to make a factual determination on
Mr. Pemberton's residency, and its actions are,
therefore, null and void.
McFarland suggests, we must ascertain whether the Election
Commission was acting within its authority when it resolved
Mr. Hall's complaint regarding Mr. Pemberton's
compliance with the residency requirement:
It is a fundamental rule of law that the departments,
agencies, and commissions of government have no inherent or
common-law power of their own. They are purely creatures of
statute. Accordingly, governmental agencies have only those
powers expressly granted by statute and those powers required
by necessary implication to enable them to fulfill their
statutory mandate. Actions taken by a governmental agency
without the required authority are nullities.
State ex rel. Comm'r of Transportation v. Med. Bird
Black Bear White Eagle, 63 S.W.3d at 768-69 (Tenn. Ct.
App. 2001) (citations omitted); see also In re Sentinel
Trust Co., 206 S.W.3d 501, 519 (Tenn. Ct. App. 2005).
this issue requires interpretation of the Election Code with
respect to the authority granted to the Election Commission.
"The construction of a statute presents a question of
law, and this Court interprets statutes de novo with no
presumption of correctness accorded to the rulings of the
courts below." Martin v. Powers, 505 S.W.3d
512, 518 (Tenn. 2016) (citing Baker v. State, 417
S.W.3d 428, 433 (Tenn. 2013)). "The most basic principle
of statutory construction is to ascertain and give effect to
the legislative intent without unduly restricting or
expanding a statute's coverage beyond its intended
scope." In re Kaliyah S., 455 S.W.3d 533, 552
(Tenn. 2015) (quoting Owens v. State, 908 S.W.2d
923, 926 (Tenn. 1995)). "To that end, we begin with the
actual words of the statute, to which we accord their natural
and ordinary meaning." Martin, 505 S.W.3d at 518 (citing
Baker, 417 S.W.3d at 433).
various contexts over the years, this Court has referred to
county election commission members as "ministerial
officers." For example, in City of Memphis, the Court
cited favorably several cases characterizing the Coordinator
and the members of county election commissions as
"ministerial officers" with "limited
The City correctly points out that the Coordinator and the
Commission [members] are ministerial officers. Shelby
County Election Comm'n v. Turner, 755 S.W.2d 774,
776 (Tenn. 1988) ("[T]he Election Commission has only
ministerial duties."); Peeler v. State ex rel.
Beasley, 190 Tenn. 615, 231 S.W.2d 321, 323 (1950)
(holding that the duties of county election commissions are
ministerial); Curtis v. State, 163 Tenn. 220, 43
S.W.2d 391 (1931); Taylor v. Carr, 125 Tenn. 235,
141 S.W. 745, 750 (1911) (holding that "the duties of
commissioners of election are only ministerial"); see
State ex rel. Tidwell v. Morrison, 152 Tenn. 59, 274
S.W. 551, 552 (1924). The trial court in this case accurately
characterized the Commission's duties as ministerial. The
Commission and the Coordinator respectively perform important
functions vital to the maintenance and advancement of our
political system. Nonetheless, as ministerial officers, the
Commission and the Coordinator have limited discretion.
City of Memphis, 146 S.W.3d at 535 (footnote
sure, under most circumstances, many of the duties of the
county election commissions listed in the Election Code may
fairly be described as ministerial, such as certifying voting
machines, keeping and writing the minutes of commission
meetings, and determining a uniform time for opening the
polls. See Tenn. Code Ann. § 2-12-116(6),
(12), & (13). Other duties in the Election Code, however,
inherently involve a level of discretion and judgment. For
example, county election commissions are required to
"promulgate such policies as are necessary to aid the
personnel of the election commission office in the
performance of their duties." Tenn. Code Ann. §
2-12-116. They also are charged with appointing an
administrator of elections, approving a budget, hiring legal
counsel, and adopting and implementing procedures to preserve
the integrity and security of the vote. See Tenn. Code Ann.
§ 2-12-116 (1), (2), (4), and (15); see also Tenn. Code
Ann. § 2-12-201 (listing duties for the county election
the Election Code also requires county election commissions
and their administrators to process voter registration
applications. Generally, United States citizens who are
Tennessee residents and are eighteen years old before the
date of the next election are qualified voters, and they may
register to vote in the precinct in which they reside.
Id. §§ 2-2-102, -104, -107. The Election
Code requires the county administrator of elections to
declare a registrant to be a registered voter if he
determines from the registrant's answers to the questions
on the application "and other questions, if necessary,
" that the registrant is entitled to register.
Id. § 2-2-120 (2014). If the administrator
rejects the registration, the registrant has a right to
appeal the administrator's decision to the county
election commission. Id. § 2-2-125(a)-(b).
Under the Election Code, "[t]he action of the [county]
commission on the registrant's application for
registration on appeal shall be a final administrative
action." Id. § 2-2-125(c). This provision
explicitly gives county election commissions the authority to
make a quasi-judicial final administrative decision regarding
voter qualifications. Id.
the Tennessee Coordinator of Elections, as the State's
chief administrative officer responsible for elections,
supervises all elections in cooperation with the county
election commissions and "[a]dvise[s] election
commissions, primary boards, and administrators of elections
as to the proper methods of performing their duties."
Id. § 2-12-202(a)(3). The Coordinator is also
required to "[a]uthoritatively interpret the election
laws for all persons administering them, " id.
§ 2-11-202(a)(4), "maintain uniformity in the
application, operation and interpretation of the election
code, " id. § 2-11-201(b), and "may
make rules and regulations as necessary to carry out the
provisions of the election code, " subject to the
concurrence of the Secretary of State, id. §
2-11-201(c). Relevant to this case, the Election Code
requires the Coordinator to "[e]nsure that all election
commissions within the state shall prohibit any person from
becoming qualified to have such person's name placed on
any ballot wherein such person is seeking to be nominated or
elected to an office for which such person is
ineligible." Id. § 2-11-202(a)(12).
Election Code provisions demonstrate that the Coordinator is
not merely a ministerial officer and county election
commissions are not strictly ministerial bodies. This Court
acknowledged as much in City of Memphis:
Without question, the Commission and the Coordinator have
certain statutorily prescribed ministerial duties that
allow-indeed require-them to do such things as examine ballot
initiatives to determine whether signature requirements are
met, determine whether submissions are timely, and determine
whether candidates have properly qualified to be placed on
the ballot. See Tenn. Code Ann. § 2-1-101 through -216
(2003) et seq.
Id. (emphasis added).
Sixth Circuit has addressed the nature of the statutory
responsibilities given to county election commissions in the
context of determining whether a county election commission
could permissibly dismiss an administrator based on political
party affiliation. Peterson 777 F.3d at 341-42. Generally,
the Peterson court explained, dismissal based on political
party affiliation, referred to as "patronage dismissal,
" is prohibited unless the employee had been serving in
a confidential and/or policymaking position. Id. at
341 (discussing Elrod-Branti exception to general prohibition
against patronage dismissal, which refers to Branti v.
Finkel, 445 U.S. 507 (1980), and Elrod v.
Burns, 427 U.S. 347 (1976)). In the course of
determining whether county election administrators hold a
"policymaking" position, the court discussed the
nature of the positions of county administrator and county
election commission member. The appellate court noted that
county election commission members hold policymaking
positions, described as "[p]ositions specifically named
in relevant federal, state, county, or municipal law to which
discretionary authority with respect to the enforcement of
that law or the carrying out of some other policy of
political concern is granted." Id. at 342-43.
Election administrators, the court held, have even greater
discretion in that they are given "a significant amount
of the total discretionary authority available
to…." the election commissions. See id.
Sixth Circuit acknowledged several Tennessee Supreme Court
opinions indicating "that the office of election
administrator is purely ministerial in nature, with only
limited discretionary powers." Id. at 347. It
noted, however, that those decisions addressed the issue in
different contexts, and it concluded that the election
administrator's duties are not merely ministerial:
No doubt, administrators execute numerous clerical,
administrative, and purely ministerial responsibilities. The
administrator must requisition supplies, maintain voter
registration files, conduct classes for poll workers, prepare
election notices, compile and disseminate information to the
public, and attend seminars. . . . Moreover, the fact that
some duties of the administrator may be classified as
"ministerial" does not preclude the determination
that other designated duties, such as budgeting,
reapportionment, and acting as an adviser to the commission
are policymaking and inherently political tasks.
Peterson, 777 F.3d at 347.
reviewing the Election Code provisions on the duties of
county election commissions, we disagree with Mr.
McFarland's contention that county election commissions
are merely ministerial bodies with no authority to undertake
tasks that are not ministerial in nature. The Election
Code clearly gives county election commissions the authority
to perform functions that are discretionary in addition to
their ministerial duties. It specifically makes a county
election commission's rejection of a voter registration
application a "final administrative action, " which
is certainly discretionary rather than ministerial. See Tenn.
Code Ann. § 2-2-125(c). We agree with the Court of
Appeals below that "it would be a mistake to suggest
county election commissions only have the authority to
perform ministerial functions." McFarland, 2015 WL
7166407, at *5 (citing the Peterson district court opinion,
Peterson v. Dean, No. 3:09-628, 2013 WL 652525, *8
(W.D. Tenn. Feb. 21, 2013), aff'd 777 F.3d 334
(6th Cir. 2015)). In discharging their statutory
duties, county election commissions perform both ministerial