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McFarland v. Pemberton

Supreme Court of Tennessee, Knoxville

September 20, 2017

WILLIAM THOMAS MCFARLAND
v.
MICHAEL S. PEMBERTON ET AL.

          Session September 8, 2016

         Appeal by Permission from the Court of Appeals Chancery Court for Roane County No. 2014-105 Jon Kerry Blackwood, Senior Judge.

         This 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.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Chancery Court and Court of Appeals Affirmed

          William Thomas McFarland, Kingston, Tennessee, appellant, Pro Se. [1]

          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 Elections.

          Holly 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.

          OPINION

          HOLLY KIRBY, JUSTICE.

         Facts and Procedural Background

         This appeal concerns a judicial election for the Ninth Judicial District in East Tennessee.[2] The Ninth Judicial District includes four counties: Loudon, Meigs, Morgan, and Roane.

         On 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.

         Plaintiff/Appellant 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.

         On 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.[3] 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.

         In 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 residency.[4]

         Accordingly, 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.

         Mr. 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.[5] 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 capacity.

         Mr. Hall retained counsel to represent him at the hearing.[6] 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] meeting."[7]

         The hearing was conducted as scheduled on April 28, 2014. Mark Goins, the Tennessee Coordinator of Elections, attended via speakerphone.[8] 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."

         The 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.

         Through 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.

         In 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.

         The 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.

         At the 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.

         On May 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).[9]

         On July 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 court's order.[10]

         Meanwhile, 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."

         On May 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 lives here!"

         The 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%).

         On 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.[11] Mr. McFarland named as defendants Mr. Pemberton, the Roane County Election Commission, the five members of the Election Commission in their official capacities, [12]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.

         On 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)[13]), (2) the doctrines of res judicata and collateral estoppel, and (3) gross laches. A few days later, the Election Commission defendants[14] 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 residency.

         In 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 gross laches.

         On September 30, 2014, the trial court held a hearing on the defendants' motions to dismiss and for summary judgment.[15] 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.

         The 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.

         The 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.[16] Id. at *8 Accordingly, the Court of Appeals affirmed the trial court's dismissal of his complaint. Id.

         We granted Mr. McFarland permission to appeal to this Court.

         Issues on Appeal and Standard of Review

         The decision presented for our review is the trial court's grant of summary judgment.[17] 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.

         In the 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?

         None of 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. 2016).

         Analysis

         I. Background on Election Code

         As 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.

         In 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.

         "It 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. § 2-11-103(a) (2014).

         In 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).

         Further, 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).

         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). 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 certain circumstances).

         The 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. § 2-1-113(a)(4).

         In this 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.

         II. Separation of Powers

         Mr. 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.[18] 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).

         In City 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.[19] Id. at 534-35.

         This 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 535, 538.

         McFarland 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.").

         Thus, 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.

         III. Election Commission Authority

         Mr. 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.

         In 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 the ballot.

         We 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 authority.

         A. Nature of the Election Commission Proceedings

         A 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.

         We 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[3] (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).

         Clearly 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 quasi-judicial function.

         B. Election Commission as Ministerial Body

         Mr. 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.

         As Mr. 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).

         Resolving 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).

         In 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 discretion":

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 omitted).

         To be 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.[20] 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 commission administrators).

         Importantly, 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.

         Moreover, 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).

         These 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).

         The 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. at 346-47.

         The 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.

         After 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.[21] 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 ...


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