FOR PUBLICATION

IN THE SPECIAL SUPREME COURT OF TENNESSEE

AT NASHVILLE

ROBERT L. DeLANEY, ) ) Plaintiff-Appella

nt, ) ) ) Davidson Chancery ) v. ) Hon. Ellen Hobbs Lyle, ) Chancellor ) ) S. Ct. No. 01S01-9808-CH-00144 BROOK THOMPSON, ET AL., ) ) Defendants-Ap

pellees. )

For Plaintiff-Appellant : For Defendants-Appellees : Robert L. DeLaney John Knox Walkup Nashville Attorney General and Reporter Nashville
Michael E. Moore Solicitor General Nashville
Michael W. Catalano Associate Solicitor General Nashville



# O P I N I O N

Judgment of Court of Appeals and Trial Court Reversed; Case Remanded. Davis, C.J.,2 Special Supreme Court

In this case, we are i nvited to decide whether the Tennessee Plan for election of appellate judges, codified as Title 17, Chapter 4 of the Tennessee Code Annotated, is unconstitutional for a var iety of reasons, but most particularly because it contemplates “retention elections” for incumbent appellate judges. I n general, the Tennessee Plan provides that an incumbent appel late judge may run for ree lection unopposed on the ballot, provided the incumbent’s retention has been recommended by the judicial evaluation commission; the judge will be retained in office if a majority of th ose voting in the election for that judge’s seat vote for such retentio n. Tenn. Code Ann. § 17-4- 115(d)(1)(1994). It is

the duty of all courts, i ncluding the Supreme Court, to pass on a constitutional question on ly when it is abso lutely necessary for the determination of the case and of the rights of parties to the litigation. Glasgow v. Fox , 214 Tenn. 656, 666-667, 383 S.W. 2d 9, 13-14 (1964). See also , Jackson v. Davis , 530 F. Supp. 2, 4 n. 1 (E.D. Tenn.), aff’d , 667 F. 2d 1026 (6th Cir. 1981). We ho ld that it is not necessary to address the constitutionality of the Tennessee Plan in this case, bec ause it is not applicable t o the facts of this case. For that reas on, the Court of Appeals erred i n holding the Tennessee Pl an co nsti tu ti on al , j ust a s t he tr ia l j ud ge

er re d i n h ol di ngth e P la n u ncon st it ut io na l. We reach this conclusion because the express provisions of the Tennesse e Plan render it inapplicable to the election for which defendant Brook Thompson, Sta te Coordinator of Elections, refused to accept a q ualifying petition submitted by the plaintiff, Robert L. DeLaney.

Judge Henry Todd’s eig ht year term on the Tennessee Co urt of Appeals was to expire September 1, 1998. Judg e Todd was required to be evaluated by the Judici al Evaluation Commission pursuant to Tenn. Code Ann. § 17-4-201(d)(Supp. 1998) and Rule 27 of the Supreme Court Rules. Ju dge Todd apparently had no intention of running for1 “Part”, as th at term is used in the Te nness ee Co de, is a ter m of a rt, and h ere m eans P art 1 of T itle

17, Chap ter 4—th e entire po rtion of the T ennesse e Plan ha ving to do with “Jud icial Selection.” See 4 Tenn. Cod e Ann. at xiii (1994)(num bering system appearing in the User’s Guide to th e Code). 2 The dissent reasons that Tenn. Code Ann. § 17-4-115( c)(1994) only applies “to incumbent judges seek[i ng] reelecti on,” a

nd that since

Judge Todd did not se ek reel ecti on, the

section did not

apply an

d Judge Todd’s s

eat was to b

e filled pursuant t

o another provi

sion of t

he Tennessee Pl an, Tenn. Code Ann. § 17-4-116(1994). The difficul ty with this r

easoning is that

the recommendation for retenti on must occur be fore the qualifying de adline, and Ten n. Code An n. §17-4-115(c) stipulates that if a judge does not receive suc h a recommendation, only “[a]f ter a judge is elected under this subs ection [Tenn. Code Ann. § 1 7-4-1 15(c) , shall] the provi sions of thi s chapter conce

rning t he evalua

tion a nd

3 reelection, and so advis ed the Judicial Evaluati on Commission.

On March 26, 1998, before the Commiss ion had issued any report concerning retention of the incumbent judges, the plaintiff requested from Thompson a nomin ating petition to run as an independent c andidate for the Tennessee Court of Appeals . By letter dated March 27, 1998, Thompson advised the plain tiff as follows: [I]f the Commission does not recommend on e or more of the judges for retenti on, then that position or positions will be considered contested off ices and this office will issue petitions to any interested persons.

This statement by Thompson in his March 27, 1998 lette r to the plaintiff was entirely consistent with the pro

visions of Tenn. Code Ann. § 17-4 -115 (c), which pr

ovides as follows: Unless the judicial evaluati on commission recommends the retention of a judge, the provisions of this part shall not be applicable . A political party

may nominate a candidate and independent candidates may qualify under the gener al election law for the general election w hich shall be the regular August election. After a judge is elected under this subsecti on the provisions of this ch apter concerning the evaluati on and re tention process sh all again a pply. (Emphasis supplied). 1 The entire Tennessee Plan pertaini ng to the election of appellate judges appears in Part 1 ( “Judicial Selection”)

of Chapter 4 of Title 17 of the Code. Therefore, under Tenn. Code Ann. § 17-4-11 5(c), the failure of the Commissi on to recommend the retention of any judg e would render the Tennessee Pl an inapplicable to the election to fill that judg e’s seat, and the election ther efore would be conducted as any other election (rather tha n as a “retention election) . Under the express di rection of Tenn. Code Ann. § 17-4-115(c), in this situation, politic

al parties can nominate candidat es and independent candidates can quali fy , and only after the election will the Tennessee Pl an again apply. Accordi ngly, any interes ted person would be entitl ed to receive a qualifying petition and to seek to quali fy to have his or her name placed on the ballot in the elec tion for that judge’s seat. 2retent ion proc

ess. ..ag ain appl

y.” Unl ess this l anguage doe s not mean wha

t it says, Tenn. Code

Ann. § 17-4-116, which compris es a part of the Tenness ee Plan, cannot apply t o fill the seat of an incumbent

whose ret

ention has not

been rec

ommended, rega

rdles s of whet

her or not

the inc umbent eventually chooses t o run for reelecti

on. Moreover, under the diss ent’s reading of

the statute, even after the judi cial evaluat ion commission fail ed to approve an incumbent’s ret ention, poli

tical part

ies and potential candi dates would not know whether the Tennessee Plan was to apply t o the electi on until the qualifying dead line passed withou t the incumbe nt filing a declaration of candida cy. Thus, any rights conferred by Tenn. Code Ann. § 17-4-115(c) upon poli tical part

ies to nominate candidat es and upon independent c andidates

to qualify to run i n the elect ion, would b

e effect ively f rustrat ed.

4 Rather than waiting t

o see whether the Commissi on would fail to recommend retention of any judge, on Apr il 3, 1998, the plaintiff filed this action in Davidson Co unty Chancery Court to seek to enjoin Thompson from placing the names of several incumbent judges on the ballot on a ret ention election basis. The plaintiff did not ask the Court to compel the defendant to issue him a qu alifying petition, or to extend the qualifyi ng deadline.

On April 10, 1998, the Judici al Evaluation Commission issued the “Tennessee Appellate Judges Evaluation Report”. This Report did not recommend the retention of Judge Todd, but stated that the Commis sion was informed that Judg e Todd would not seek reelection. Interestingly enough, the Office of the Att orney General had previously advised the Judicial Ev aluation Commission that it c ould not fail to evaluate an i ncumbent judge in just this situation. In Opinion No. 97-101 (July 17, 1997), the Office of the Attorney General stated as follows:

The Judicial Evaluation C ommission is not reliev ed of its obligation to evaluate the judge reg ardless of any express ion of such intention [not to seek reelection], because the Commis sion has not been given any legal authority to utilize such a statement to remove a judge from the evaluation process. Based on the position taken in Thompson ’s March 27 letter to the plaintiff; based on the Attorney General Opinion to the effect that the Commission wa s under an obligation to evaluate Judge Todd regar dless of his intention to run for office; and based upon the above-quoted language of Tenn. Code Ann. § 17-4-115 (c) that “ unless the judicial evaluation commis

sion recommends the

retention of a judge, the provi sions of [the Tennessee Plan] shall not be applic able”, one might have expected the plaintiff to renew his request for a qualifying petition, or Thompson to promptly issue the petiti on without any additional request. How ever, the plaintiff apparently did not again demand a qualifying petition from Thompson until May 12, 1998, more than a month after the Commiss ion issued its Report. While Thompson did on May 13 provide the plaintiff w ith the requested5

qualifying petition, Thompson at that time modif ied the position he had taken in his March 27 letter to plaintiff. In a notice to plaintiff , he stated as follows: If Judge Henry Todd does not file a declaration of candidacy for the off ice of Judge of the Court of Appeals, Middle Sec tion, pursuant to Tennessee Code Annot ated § 17-4-115(a)(1), by the qualifying deadline of May 21, 1998, then any qua lifying petitions for candidacy for the office of Judge of the Court of Appeals, Middle Section, presently held by Judge Todd that are lodg ed with this office wil l not be filed and are void and of no leg al effect. In that situation, Tennessee C ode Annotated § 17-4-116(a) [that is, the Tennessee Plan] will control the fill

ing of the vacancy. (Emphasis supplied.) The plai ntiff did lodge his qualify ing petition on May 19,1998, but Judge Todd did not file a Declar ation of Candidacy by the q ualifying deadline of May 21. Thompson then informed the plaintiff that his q ualifying petition w as void and of no legal effect, because the election was t o be governed by the Tenness ee Plan, specifically Tenn. Code Ann. § 17-4-116 (1994). Thi s, in effect, meant that no election w ould be held for Judge Todd’s seat until after the Governor had appointe d a new judge, something which was unlikely to happen, and did not in fact happen, before Aug ust 6, 1998, the election day specified by Artic

le VII, § 5 of the Tennessee Constitut ion.

As far as we are able to dete rmine from the record before us, the plaintiff never challenged Thompson’s position that Tenn. Code Ann. § 17-4-116 w ould apply to the election for Judge Todd’s seat. Instead, the plaintiff chose to res t his position in the tri al court entirely upon the asserted unconstitutionality of the Ten nessee Plan. The trial court agreed with the plaintiff that the Tennessee Plan was uncons titutional and enjoined Thompson to place the plaintiff’s na me on the ballot for the August 6, 1998 election to f ill Judge Todd’s seat. The defendants appealed, and persuaded the Special Cour t of Appeals appointed to hear this c ase, to dissolve the inj unction. The Special Court of Appeals then reversed the t rial court, and pronounced th e Tennessee Plan constitutional. We granted the plaintiff’s application to appeal , and we now rever se the decision of the Court of Appeals because the Tennessee Plan was not applicable to the election to fill Judge Todd’s seat.

While Thompson recognized in his Marc h 27 letter to the plaintiff that the Commission’s failure to rec ommend Judge Todd’s retention w ould render the Tennessee Plan inapplicable to the elec tion for his seat under Tenn. Code A nn. § 17-4-115(c), he3

The plaintiff agrees with th e defendan ts that Tenn. Cod e Ann. § 17-4-11 6 was, by its terms, applicable t

o the electi on, stated so a t oral argument before t his Court, and reaff irmed this posit

ion in a brie f lodge d subse quen t to oral ar gum ent. Th e plaint iff appa rently a nticipat ed, corr ectly as it turns ou t, that this Cou rt would not reach the me rits of the plaintiff’s co nstitutional ar gume nts unle ss it wa s conv inced that th e Ten nesse e Plan was a pplic able to the el ection to fill Ju dge T odd ’s seat.

6 apparently considered Judge Todd’s subsequent failure to file a Declaration of Candidacy as changing the situati on and triggering the procedure described in Tenn. Code Ann. § 17- 4-116. 3 Thompson was simply inc orrect. Section 17-4-116, a part of the Tennessee Plan, must be read in the light of the preceding section, and most especially Tenn. Code Ann. § 17-4-115 (c), which expressly declar es that the Tennessee Plan is not appl icable if the Judicial Evaluation C

ommission does not recommend that an i ncumbent judge be retained, and will not again be applicable until after the election specified in that subsection. If Tenn. Code Ann. § 17-4- 116 was applicable w hen the Commission has not recommended such retention, then Tenn. C ode Ann. § 17-4-115 (c) w ould be meaningless. We are bound by established principles of statutory construction to construe statutes, whenev er possible, in a way

which gives meani ng to every porti on of the statute. Anderson Fish & Oyster Co. v. Olds , 197 Tenn. 604, 277 S.W. 2d 344 (1954). Therefore, we must reject an i nterpretation which w ould render the provisi ons of Tenn. Code Ann. § 17-4-115(c) meaning less. We therefore hold that when the Commiss ion filed the Report of the Judicial Ev aluation Commission on April 10, 1998, and did not recommend that Judge Todd be retained i n office, the provisions of the Tenness ee Plan became inapplicable to the election for Judge Todd’s seat on the C ourt of Appeals under the plain language of Tenn. Code Ann . § 17-4-115(c) until after the open election specified in that subsection.

Judge Todd’s subsequent failur e to file any declaration of ca ndidacy cannot logically change the result. Otherwise, rather than being inapplicable to the election until after a new judge is elected as expressly commanded by Tenn. Code Ann. § 17-4-115 (c), the Tennessee Plan would merely be conditionally suspende d until such time as the incumbent failed to file a Declaration of Cand idacy. This would be especially anomalous; when a judge’s eight

year term of office expired, political parties, potential candidates and the electorate itself would not know the manner of filling such a regularly recurring vacancy4

As a di rect c

onsequenc

e of Thompso

n’s er roneous a

pplic ation of Tenn. Code Ann. § 1 7-4 116 to the facts of t

his case, wit

h which the plaintif f acquiesced, there was no August 6 election- -retention or otherw ise--to fill Ju dge T odd’s se at, because there were no candidates . This affro nt to the dem ocratic proces s appare

ntly t rouble s neit her part

y. The pr

acti cal co

nsequence

of the parti es’ e

rroneous reading of the stat

ute is that t he judge whos

e retent

ion has not been recommended woul d have the pow er to de term ine, by filin g or failin g to file a d eclaratio n of can didacy , whet her or not the re wo uld be a cont

ested e lect ion to fil l his seat a t the e xpirat ion of his term of of

fice . We can t

hink of no principled reason w hy the electoral proce ss may be frustrated by an incum bent judge w hose retenti on has not been a pproved. 5 Indeed, we m ight be inclined to conside r the appeal m oot, but for the fact that “interests of a public cha racter and of impor tance in th e adm inistration of ju stice gener ally are invo lved.”

7 on the Court of Appeals until the expiration of the q ualifying deadline for the el ection

4

. This cannot have been the Legis lature’s intent, and is c ertainly not the law

unless Tenn. Code Ann. § 17-4-115(c) is entirely inoperativ

e. Therefore, Tenn. Code Ann. § 17-4-116, as a part of the Tennessee Plan, must appl y only to the situati on in which an incumbent appellate court judge whose retention has been recom mended by the Comm

ission fails to file a declaration of candidacy or withdraws as a candidate. This, in fact, seem s the plain and obvious meaning of Tenn. Code Ann. § 17-4-11 5 as understood by Thompson himself as expressed in his M arch 27, 1998 letter to the plai ntiff. It is puzzling that Thompson changed his interpretation, and it is even more puzzling that the plaintiff acquiesced in Thompson’s new, and strained, i nterpretation. One might be forgiven for suspecting that both sides overlooked Tenn. C ode Ann. § 17-4-115(c), in th eir haste to test the constitutionality of the Tennes see Plan.

Since we hold that the Tennesse e Plan was inapplic able to the elec tion to fill Jud ge Todd’s seat for the term commencing September 1, 1998, we need not reac h any of the constitutional challenge s to the Tennessee Plan advanced by the plaintiff. As already pointed out, in the trial cou rt, the plaintiff never chal lenged the defendants’ interpret ation of the Tennessee Plan as applicable t o the election in question.Our jurisdiction i s appellate only, and we are not in a positio n to rule u pon claim s which the plaintif f might h ave asserted, but failed to assert,in the trial court. M oreover, while it appears from the meager record before us that the plaintiff properly quali fied to have his name placed on the ballot for the August 6, 1998 election to fill Judge Todd’s seat, an election which never occurred, the courts cannot turn back the constitutional clock. Article VII, § 5 of the Constitution o f Tennessee prohibits specia l elections to f ill a vacancy in the of fice of Judge except at the time fixed for the biennial elections, and the next such election will not occur until August of the year 200 0. 5McC anless v . Klein , 182 Te nn. 631 , 638, 188 S.W. 2d 745, 747 (Tenn . 1945).

8 We therefore REVERSE th e decision of the Court of Appeals and REMAND this case to the trial court for further proceedings not inc onsistent with this opi nion.

Costs of the appe al are taxe d to the p laintif f, Rober t L. DeLan ey.

_________________________________ Ames Davis, C.J., Special Supreme Court

Concur: Benjamin Hooks, J., Special Supreme Court Gary D. Gerbitz, J., Special Supreme Court Dissent: Robert D. Arnold, J., Special Supreme Court Concurring in Diss

ent: Jeanie M. Todd, J., Special Supreme Court