IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 8, 2016 Session

WILLIAM THOMAS MCFARLAND 

v.

MICHAEL S. PEMBERTON ET AL.

Appeal by Permission from the Court of Appeals

Chancery Court for Roane County

No. 2014-105 Jon Kerry Blackwood, Senior Judge

___________________________________

No. E2014-02176-SC-R11-CV – Filed September 20, 2017

___________________________________

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 
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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

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.

William Thomas McFarland, Kingston, Tennessee, appellant, Pro Se1

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

OPINION

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.

 

1 Mr. McFarland was represented by attorneys Wm. Ritchie Pigue and Matthew C. Pietsch in the 

trial court, but he represented himself on appeal to the Court of Appeals and continues to represent 

himself in this appeal.

2 The material facts in this case are undisputed, and the same facts serve as the bases for both the 

majority and dissenting opinions. The only disputed issues involve the application of the law to these 

facts. 
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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 

 

3

In an affidavit filed in the trial court below, the Administrator recounted that Mr. Hall was the 

only person he told about the call to the state election commission. Later that day, the Administrator had 

a telephone conversation with Mr. McFarland on an unrelated matter. The Administrator averred that, in 

that conversation, Mr. McFarland volunteered that he “was not the person who had called the elections 

office in Nashville concerning Mr. Pemberton’s residency.” The Administrator said that he “never 

mentioned anything to Mr. McFarland about another person having called the elections office in 

Nashville and . . . had never told anyone other than Mr. Hall about someone having done so.” 
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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

 

4 The letter from the Coordinator to the Election Commission is not included in the record on 

appeal. However, the letter is referenced in a transcript of the hearing below, which is in the record, and 

the comments in the hearing indicate that the Coordinator instructed the Election Commission on 

resolving the issue of Mr. Pemberton’s residency. 

5

It is unclear whether Mr. McFarland declined to serve as legal advisor to the Election 

Commission in the proceedings because he had previously represented Mr. Hall (the complainant) in an 

unrelated legal suit or because he had filed to run as a candidate in the same election as Mr. Pemberton. 

In any event, the Election Commission retained attorney Frank Q. Vettori for the hearing for the purpose 

of “only answer[ing] questions from the [C]omission itself and only pertaining to legal matters.” 

6 Mr. Hall retained attorney Wesley Kliner to represent him at the hearing. Mr. Kliner is, among 

other things, a former Hamilton County Election Commissioner, and he preceded Mark Goins as the 

Tennessee Coordinator of Elections.

7 Although those submissions were made a part of the Election Commission minutes, they were 

not included in the record in this appeal. As we indicate supra at note 3, a transcript of the actual hearing 

is included in the appellate record. Comments made at the hearing indicate that the parties also submitted 
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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-squarefoot 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 

 

briefs, relevant legal authority, and affidavits to the Election Commission; those submissions are likewise 

not included in this appellate record. 

8 Assistant Coordinator of Elections Beth Henry Robertson and attorney Cara Hart also attended 

the public hearing via speakerphone.
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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 

 

9 That statute provides: “Anyone who may be aggrieved by any final order or judgment of any 

board or commission functioning under the laws of this state may have the order or judgment reviewed by 

the courts, where not otherwise specifically provided, in the manner provided by this chapter.” Tenn. 

Code Ann. § 27-9-101 (2014).
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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. 

 

10 We need not address the correctness of the chancery court’s dismissal of Mr. Hall’s complaint 

for lack of standing. 
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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 defendants14 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 

 

11 Mr. McFarland’s complaint was filed within five days of August 15, 2014, the day the election 

results were certified, in accordance with the election contest statutes. Tenn. Code Ann. § 2-17-105 

(2014). 

12 The five Commissioners named were Lowell P. Malmquist, Vickie Watts, Ralph DePorter, 

Celia Simon, and James Ryans.

13 This statute provides that any party “aggrieved” by the administrative decision “shall, within 

sixty (60) days from the entry of the order or judgment, file a petition of certiorari in the chancery court.” 

Tenn. Code Ann. § 27-9-102 (2014).

14 In this Opinion, any position attributed to the Election Commission or the “Election 

Commission defendants” includes the individual commission members who were sued in their official 

capacities and the Tennessee Coordinator of Elections, Mark Goins. 
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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 timebarred. 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 timebarred pursuant to Tenn. Code Ann. § 27-9-102” and, consequently, the court was 

 

15 The record does not include a transcript of that hearing.
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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?

 

16 While the appellate court did not make a specific finding on Mr. Pemberton’s assertion of gross 

laches, it expressed reluctance to void an election when Mr. McFarland “waited to challenge Pemberton’s 

qualifications until after the election” and commented that waiting until after the election to file the 

challenge prejudices both the candidate whose qualifications are questioned and his financial supporters. 

McFarland, 2015 WL 7166407, at *8. 

17 The trial court did not indicate in its order whether it was granting Mr. Pemberton’s motion to 

dismiss on the pleadings or for summary judgment. From our review of the record, however, it is 

apparent that the trial court relied on matters outside the pleadings in making its decision. Therefore, we 

treat the decision as a grant of summary judgment in favor of all of the defendants. See Gibson v. Trant, 

58 S.W.3d 103, 107 (Tenn. 2001).
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(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
- 12 -

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 
- 13 -

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 

 

18 Article II, section 1 provides: “The powers of the Government shall be divided into three 

distinct departments: the Legislative, Executive, and Judicial.” Tenn. Const. art. II, § 1. Article II, 

section 2 provides: “No person or persons belonging to one of these departments shall exercise any of the 

powers properly belonging to either of the others, except in the cases herein directed or permitted.” Tenn. 

Const. art. II, § 2.
- 14 -

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.”). 

 

19 Given the time-sensitive nature of the case, the City filed a motion asking the Supreme Court to 

assume jurisdiction over the appeal pursuant to Tennessee Code Annotated section 16-3-201, and this 

Court granted the City’s motion. City of Memphis, 146 S.W.3d at 534-35.
- 15 -

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 quasijudicial 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.
- 16 -

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 quasijudicial 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
- 17 -

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. 
- 18 -

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 

 

20 However, even duties which appear on their face to be ministerial, such as counting votes, may 

in some circumstances require the exercise of judgment and discretion. See, e.g., Bush v. Gore, 531 U.S. 

98, 107 (2000) (referring to the various Florida county election commissions using “varying standards to 

determine what was a legal vote” in the 2000 presidential election); Marks, 74 Tenn. at 20 (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).
- 19 -

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,
- 20 -

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 

 

21 This does not indicate disagreement with the holding in City of Memphis that county election 

commissions do not have the authority to perform a purely judicial function such as interpreting the State 

constitution. 
- 21 -

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 

and discretionary functions. See Tenn. Cable Television Ass’n v. Tenn. Pub. Serv. 

Comm’n, 844 S.W.2d 151, 158 (Tenn. Ct. App. 1992) (noting that the Tennessee Public 

Service Commission exercises “co-mingled legislative, executive, and judicial 

functions”).

C. Authority Implied by Necessity 

We must now address whether the Election Code grants county election 

commissions the implicit authority to resolve a challenge to a judicial candidate’s 

qualifications to hold office. This is an issue of first impression with this Court. 

Mr. McFarland argues that, even if the Election Commission’s powers are not 

limited to ministerial functions, the Election Code does not expressly authorize county 

election commissions to hold a hearing when a candidate’s residency is questioned. 

Consequently, he contends, the Election Commission did not have authority to resolve 

Mr. Hall’s complaint regarding Mr. Pemberton’s residency. Only a court may make such 

a determination, he argues, so the Election Commission was required to file a court 

proceeding to address Mr. Pemberton’s residency in response to Mr. Hall’s complaint. 

In response, Mr. Pemberton and the Election Commission defendants argue that 

the legislature implicitly granted county election commissions, in cooperation with the 

Coordinator, the authority to hold hearings to resolve qualification disputes as a 

necessary means of carrying out their joint duty to ensure that only qualified candidates 

are placed on the ballot. They maintain that county election commissions necessarily 

have the implicit authority to hold quasi-judicial hearings on disputes about candidate 

qualifications in order to effectively carry out their duty to place only qualified 

candidates on the ballot. 

As noted above, the general rule is well-settled that boards and commissions are 

creatures of statute and can exercise only such authority as is conferred upon them by 

statute. Medicine Bird Black Bear White Eagle, 63 S.W.3d at 768-69; In re Sentinel 

Trust Co., 206 S.W.3d at 519. It is equally well-settled, however, that when a statute 
- 22 -

imposes a mandatory duty upon a governmental agency to carry out express and 

specifically defined purposes and objectives, the statute carries with it by necessary 

implication the authority to do whatever is reasonably necessary to effectuate the 

legislative mandate. Medicine Bird Black Bear White Eagle, 63 S.W.3d at 768-69 

(“[G]overnmental agencies have only those powers expressly granted by statute and those 

powers required by necessary implication to enable them to fulfill their statutory 

mandate.”) (emphasis added); In re Sentinel Trust Co., 206 S.W.3d at 519 (same); 

Mayhew v. Mayhew, 376 S.W.2d 324, 327 (Tenn. App. 1963) (“[W]hen a power is given 

by statute, everything necessary to make it effectual is given by implication.”). Authority 

vested in an administrative agency by necessary implication “must have its source in the 

language of the statutes themselves.” See Sanifill of Tenn., Inc. v. Tenn. Solid Waste 

Disposal Control Bd., 907 S.W.2d 807, 810 (Tenn. 1995). 

One treatise explains:

A statute which confers powers or duties in general terms includes by 

implication all powers and duties incidental and necessary to make the 

legislation effective. . . . “[W]here a statute grants a specific power or 

imposes a definite duty, it also, in the absence of limitation, by implication 

confers authority to employ all the means that are usually employed, and 

that are necessary to the exercise of the power conferred or to the 

performance of the duty imposed.” In other words, that which is clearly 

implied is as much a part of a law as that which is expressed. Courts have 

most frequently extended statutes by necessary implication in the realm of 

laws which delegate powers to public officers and administrative agencies. 

The powers granted may involve a multitude of functions discoverable only 

through practical experience. 

Norman J. Singer & Shambie Singer, Sutherland Statutes & Statutory Construction § 

55:4 (7th ed. 2016) (footnotes and citations omitted) (noting relevant cases from 

numerous jurisdictions); see e.g., Stockmeier v. Bd. of Parole Comm’rs, 255 P.3d 209, 

212 (Nev. 2011) (citation omitted) (“An administrative agency’s powers are generally 

limited to the powers set forth by statute, although ‘certain powers may be implied even 

though they were not expressly granted by statute, when those powers are necessary to 

the agency’s performance of its enumerated duties.’”); Vickers v. Lowe, 247 P.3d 666, 

669 (Idaho 2011) (citation omitted) (“Since the Legislature cannot possibly foresee all 

the practical difficulties that state agencies will encounter while carrying out their 

statutory functions, ‘administrative agencies have the implied or incidental powers that 

are reasonably necessary in order to carry out the powers expressly granted.’”). Agency 

authority may not be implied by necessity if doing so would “contravene specific 

statutory language, [or] run counter to the general objectives of the statute.” R.R. 
- 23 -

Comm’n v. Tex. Coast Utils. Coalition, 357 S.W.3d 731, 737 (Tex. Ct. App. 2011)

(citations omitted), aff’d sub nom. Texas Coast Utils. Coal. v. R.R. Comm’n of Texas, 

423 S.W.3d 355 (Tex. 2014). “[I]t is the responsibility of a reviewing court to ensure 

that an agency’s administrative actions do not exceed its legislatively conferred powers. 

That said, the breadth of an agency’s authority encompasses all express and implied 

powers necessary to fulfill the legislative scheme that the agency has been entrusted to 

administer.” In re Virtua-W. Jersey Hosp. Voorhees for a Certificate of Need, 945 A.2d 

692, 698 (N.J. 2008) (citation omitted).

Against this backdrop, we consider the pertinent provisions of the Election Code. 

As noted above, the Election Code was enacted “to regulate the conduct of all elections.” 

Tenn. Code Ann. §§ 2-1-101. One of its stated goals was to secure “freedom and purity 

of the ballot.” Id. § 2-1-102. To that end, the Coordinator supervises all elections and 

advises all county election commissions and administrators “as to the proper methods of 

performing their duties.” Id. § 2-12-202(a)(3). The Coordinator is to “[a]uthoritatively 

interpret the election laws for all persons administering them,” id. § 2-11-202(a)(4), and 

“maintain uniformity in the application, operation and interpretation of the election 

code,” id. § 2-11-201(b).

More specifically, the Election Code directs county election commissions to print 

ballots “on which shall be only the names of candidates who have qualified.” Id. § 2-5-

202 (emphases added); 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 Coordinator must “[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) 

(emphases added). Thus, the Election Code tasks both the Coordinator and the county 

election commissions with the duty of ensuring that only eligible, qualified candidates 

are placed on election ballots. The Election Code does not, however, provide the method 

by which the Coordinator and the county election commissions are to discharge this duty 

in the event of a question or challenge regarding a candidate’s qualifications or 

eligibility for the office sought. 

A review of election laws in other jurisdictions reveals a wide variety of 

approaches. Some, like Tennessee, do not specify a method by which eligibility or 

qualification challenges must be addressed.22 Other jurisdictions specify a particular 

 

22 These states are examples of those that have no specific provision in their election laws 

prescribing a procedure for challenging a prospective candidate’s qualifications for office: Alaska 
- 24 -

procedure for challenging and determining a candidate’s qualifications.23 Many of those 

procedures include a temporal framework for the proceedings in recognition of the timesensitive nature of pre-election challenges to candidate qualifications.

24 As we have 

observed, Tennessee’s Election Code contains neither a special procedure nor any 

temporal framework for resolving a pre-election challenge to a candidate’s qualifications. 

Mr. McFarland argues that, because Tennessee’s Election Code does not 

specifically grant the county election commissions the authority to hold hearings to 

address a candidate’s qualifications, the legislature implicitly meant for such issues to be 

resolved by a court, either pre-election in an action for declaratory relief or post-election 

through an election contest. In support, he cites cases in which candidate qualification 

issues were resolved in court proceedings. See Comer v. Ashe, 514 S.W.2d 730, 741 

(Tenn. 1974) (holding in a pre-election declaratory judgment act that “the courts have 

power, jurisdiction and authority to determine the eligibility of a candidate for State 

Senate” based on his age); Hatcher v. Bell, 521 S.W.2d 799, 803 (Tenn. 1974) (holding 

that candidate can file a post-election election contest challenging residency). Mr. 

McFarland cites Knox County Election Commission v. Breeding as an example of what 

 

(Alaska Stat. § 15.05.010, et seq.); Delaware (Del. Code Ann. tit. 15, § 101 et seq.); Iowa (Iowa Code § 

39.1 et seq.).

23 Some states permit eligible voters to challenge a candidate’s qualifications through the 

administrative process by having a hearing before the appropriate election officials. See, e.g., Ga. Code 

Ann. § 21-2-6 (providing that any eligible voter may file a written complaint challenging a candidate’s 

qualifications with the county superintendent, and the matter is to be decided by the superintendent); 

Miss. Code Ann. § 23-15-963 (describing methods for contesting candidate qualifications with the 

appropriate election officials); N.C. Gen. Stat. Ann. § 163-127.3 (permitting voters to challenge a 

candidate’s qualifications by filing a verified affidavit with the board of elections); Ohio Rev. Code Ann. 

§ 3513.05 (permitting voters to challenge a candidate’s qualifications by filing a protest with the relevant 

election officials); Wis. Stat. Ann. § 5.06 (permitting voters to file a “written sworn complaint” with the 

election commission regarding candidate qualifications). Other states require pre-election challenges to a 

candidate’s qualifications to be brought in a court of law. See, e.g., Ariz. Rev. Stat. Ann. § 16-351 

(providing that voters can challenge a candidate’s qualifications in court); Colo. Rev. Stat. Ann. § 1-13.5-

301(3) (providing that a candidate’s qualifications may be challenged by filing an action “in the district 

court in the county in which the local government is located); La. Stat. Ann. § 18:1403 (providing that 

“district courts shall have exclusive original jurisdiction of actions objecting to candidacy”); 25 Pa. Cons. 

Stat. § 3376 (providing that “contested nominations” of judges must be filed in the court of common 

pleas).

24 See generally La. Stat. Ann. § 18:1409 (imposing time restrictions on court proceedings); N.C. 

Gen. Stat. § 163-127.4 (imposing time restrictions on the administrative hearing panel); see also Wis. 

Stat. Ann. § 5.06 (stating that a complaint under the statute “shall be filed promptly so as not to prejudice 

the rights of any other party” and that “[i]n no case may a complaint relating to nominations, 

qualifications of candidates[,] or ballot preparation be filed later than 10 days after the complainant knew 

or should have known that a violation of law or abuse of discretion occurred or was proposed to occur”).
- 25 -

the Election Commission should have done in this case, which is to initiate a declaratory 

judgment action on its own behalf to resolve any questions raised about Mr. Pemberton’s 

residency. No. E2012-01094-COA-R3-CV, 2012 WL 2146310, at *1 (Tenn. Ct. App. 

June 14, 2012); see Jordan v. Knox Cnty., 213 S.W.3d 751, 766 (Tenn. 2007) (holding 

that the county election commission has standing to seek declaratory judgment as to 

eligibility of those who filed qualifying petitions); Shelby Cnty. Elec. Comm’n v. Turner, 

755 S.W.2d 774 (Tenn. 1988) (holding that the county election commission has standing 

to seek a declaratory judgment regarding whether office of juvenile court clerk should be 

on ballot). In her dissent, Justice Clark adopts a similar position, characterizing prior 

Tennessee caselaw as “holding that the authority of county election commissions is 

ministerial only.”25

While it is clear that a county election commission may initiate court proceedings 

when a candidate’s eligibility to run for a particular office is challenged, the issue before 

this Court is whether it must file such court proceedings. Mr. McFarland argues that 

county election commissions must file court proceedings because they are without 

authority to resolve eligibility issues themselves, despite the fact that they are charged 

with the duty of ensuring that only eligible persons are placed on the ballot. However, he

points to no language in the Election Code limiting county election commissions in this 

way. 

Qualifications to hold elected office come in all shapes and sizes. Some, such as 

minimum age requirements, are relatively uncomplicated and may typically be resolved 

by a county election commission by requiring the candidate to produce appropriate 

 

25 Justice Clark also argues in her dissent that a Tennessee statute, Tennessee Code Annotated 

section 2-5-101(g)(1)(E), “evinces the General Assembly’s intent for courts, not county election 

commissions, to determine whether a candidate has satisfied constitutional residency requirements.” It

does not. Section 2-5-101(g)(1)(E) describes the process by which another candidate may qualify if, after 

the qualifying deadline, the current candidate can no longer run because he was “declared ineligible” or 

“disqualified by a court” or “disqualified by the political party executive committee,” leaving no 

remaining candidates for the office on the ballot. Although the statute refers to disqualification by a court 

or by a political party executive committee, we disagree with Justice Clark’s dissent that it indicates that a 

declaration of ineligibility may only be made by a court. The statute can be fairly read as not specifying 

the body that would make a declaration that a candidate is ineligible.

We note that Justice Lee joins in Justice Clark’s dissent and incorporates its analysis into her 

dissent. Consequently, in responding to Justice Clark’s dissent, we also respond to Justice Lee’s insofar 

as it incorporates Justice Clark’s analysis. We will respond separately to the other arguments made in 

Justice Lee’s dissent. 
- 26 -

documentation.26 See, e.g., Tenn. Const. art. II, § 10 (“No person shall be a Senator 

unless he shall be . . . of the age of thirty years . . . .”). Others may be more complicated. 

In Breeding, for example, the home of a candidate for a Knox County state House seat 

was situated on land that straddled the county line between Knox and Anderson counties, 

and the court was asked to issue a declaratory judgment on the county in which the 

candidate resided based on those specific facts. Breeding, 2012 WL 2146310, at *1. 

Some, such as a requirement that a candidate be a licensed lawyer or be certified as a law 

enforcement officer, may require deference to the findings of another board or 

commission. See, e.g., Bivens v. White, No. E2014-02251-COA-R3-CV, 2015 WL 

5444126, at *8 (Tenn. Ct. App. Sept. 16, 2015) (noting that, under section 8-8-102, “[t]he 

POST Commission is the entity responsible for verifying a candidate’s qualifications for 

the office of sheriff”); see also Tenn. Code Ann. § 17-1-106 (requiring that judges “shall 

be learned in the law, which must be evidenced by the judge being authorized to practice 

law in the courts of this state”).

Questions regarding a candidate’s qualifications may come from a voter such as 

Mr. Hall, from an opposing candidate such as Mr. McFarland, or from some other source. 

Challenges to a candidate’s qualifications may arise well in advance of the upcoming 

election, or they may come up shortly before the election. See Barrett v. Giles County, 

No. M2010-02018-COA-R3-CV, 2011 WL 4600431, at *4 (Tenn. Ct. App. Oct. 5, 2011) 

(“Challenges to a candidate’s right to appear on a ballot should ordinarily be brought 

before the election—preferably in time for the issue to be resolved before the ballots have 

to be printed and before the start of absentee and early voting.”). Regardless of the type 

of qualification that is challenged, who raises the issue, or when the question arises, the 

legislative mandate imposed on the Coordinator and the county election commission is 

the same: to ensure that only eligible, qualified candidates are placed on election ballots

in order to secure “freedom and purity of the ballot.” Tenn. Code Ann. § 2-1-102(1); see 

also id. §§ 2-5-202, 2-11-202(a)(12).

Adopting the position advocated by Mr. McFarland and by Justice Clark in her

dissent—that county election commissions have no authority to resolve a factual dispute 

on a candidate’s qualifications—would tie the hands of the Coordinator and county 

election commissions and unduly limit them in discharging this duty. Regardless of the 

circumstances, a county election commission would have no ability to investigate and 

make its own factual determination as to a candidate’s qualifications, even if directed to 

do so by the Coordinator. As was utilized by Mr. Hall in this case, Tennessee’s Secretary 

of State makes an “Elections Complaint Form” available for voters to use to complain 

 

26 But see Comer v. Ashe, 514 S.W.2d 730 (Tenn. 1974), in which the question raised involved a 

candidate for State Senate who would not reach the minimum age for eligibility until shortly after the 

election. 
- 27 -

about perceived election irregularities. According to Mr. McFarland and both dissents, 

neither the Coordinator nor county election commissions have the authority to resolve

such a complaint or even to elicit documentation regarding a candidate’s residency; both 

are powerless to do anything except file a lawsuit and await the court’s decision.27 If this 

were true, neither the Coordinator nor the county election commission could ensure a 

timely resolution of the challenge to the candidate’s qualifications; because Tennessee’s 

Election Code contains no temporal framework for resolving a question on a candidate’s 

qualifications, the timeline would instead be in the discretion of the court. Elections do 

not wait for a judge to issue a ruling. Denying the Coordinator and county election 

commissions the authority to resolve a candidate residency issue in the first instance, as 

Mr. McFarland and both dissents urge, would run counter to the legislature’s decision to 

charge them with the joint duties of placing qualified candidates on the ballot and 

efficiently administering elections. 

Both Mr. McFarland and Justice Clark’s dissent point to the fact that the Election 

Code includes a specific method for a voter to appeal the county election commission

administrator’s rejection of his voter registration application, and the method specified

includes a quasi-judicial hearing before the county election commission. They contend 

that, because the Election Code does not specify a method for resolving questions about a 

candidate’s qualifications, this means that the legislature did not intend for either the 

 

27 Justice Lee observes in her dissent that it is “highly unlikely” that pre-election litigation 

regarding a candidate’s qualifications would be resolved in sufficient time prior to the election. That is 

precisely our point. We agree with Justice Lee that it is preferable to resolve disputes over candidate 

qualifications as soon as practicable, preferably well in advance of the election. See Barrett, 2011 WL 

4600431, at *4. “Doing otherwise ‘prejudices’ the candidate whose qualifications are brought into 

question, as well as that candidate’s financial supporters and those who voted for him.” McFarland, 2015 

WL 7166407, at *8 (citing Barrett, 2011 WL 4600431, at *4). The timing problem Justice Lee highlights 

supports our conclusion that the Election Commission necessarily has the authority to conduct a hearing 

and resolve the matter in the first instance. If it were prohibited from making a determination on a 

complaint challenging a candidate’s qualifications (like Mr. Hall’s), the county election commission’s 

only alternative would be to file a pre-election declaratory judgment action and, as pointed out by Justice 

Lee, run a substantial risk of having the matter remain unresolved in time to prepare the ballots for voting, 

including early voting. See Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 584 (6th Cir. 2006) 

(“Legal disputes involving election laws almost always take more time to resolve than the election cycle 

permits.”). If that were to happen, the result would be a failure by the Coordinator and the county 

election commission to fulfill their joint statutory duty to make certain that the ballot lists only qualified, 

eligible candidates. 

Our analysis applies standard legal principles that are neither novel nor unique. As is the case 

with any legal claim, our holding requires only that a candidate in Mr. McFarland’s position file his 

lawsuit within the applicable statute of limitations, regardless of when it is resolved. Mr. McFarland is 

not relieved of this responsibility because he happens to be a candidate in an election. 
- 28 -

Coordinator or county election commissions to have the authority to make an initial 

determination on a candidate’s qualifications; they may only file a lawsuit asking a court 

to make the determination. We disagree. Among other things, the Election Code 

requires both the Coordinator and the county elections commissions to (1) ensure that 

only qualified voters are permitted to vote, and (2) ensure that only qualified candidates 

appear on the ballot. Id. § 2-11-202(a)(12) (Coordinator); id. § 2-5-202 (election 

commissions); id. § 2-5-204 (election commissions). The fact that the Election Code 

specifies the method for county election commissions to determine a voter’s appeal as to

the first legislative mandate does not mean that the legislature intended to leave either the 

Coordinator or county elections commissions powerless to carry out the second 

legislative mandate. 

Opinions issued by the Office of Tennessee’s Attorney General support this

position. The Attorney General has indicated that, while county election commissions do 

not have “an absolute affirmative obligation . . . to seek out information regarding” a 

candidate’s qualifications to hold the office for which he is applying, the county election 

commissions “should conduct a hearing” on the issue when “reliable information” is 

presented that indicates that a candidate is not qualified for office. Tenn. Att’y Gen. Op. 

79-292 (June 15, 1979). The Attorney General later explained:

[C]ounty election commissions have a duty not to put a candidate’s 

name on the ballot if they know that the candidate is unqualified for the 

office he or she seeks. This duty is a negative corollary to the positive 

requirement of T.C.A. § 2-5-204(a) that “[e]ach qualified candidate’s name 

shall be placed on the ballot as it appears on his nominating petitions.” 

This Office has cautioned that a county election commission’s duty 

not to put the name of an unqualified candidate on the ballot should not be 

construed as an affirmative obligation generally to seek out information 

regarding a candidate’s qualifications. However, when “reliable 

information” is presented to a county election commission that a candidate 

is disqualified for some reason . . . the commission has a duty to conduct a 

hearing on that issue to determine whether the candidate is or is not 

qualified. It is not easy to define “reliable information” in the abstract, but 

it seems reasonable to require something more than an unsupported or 

uncorroborated allegation that a candidate is unqualified for some reason.

Accordingly, in the event that a county election commission receives 

some “reliable information” that a candidate for sheriff has not obtained a 

mental health certification, it would have the duty to investigate and 

determine whether this statutory qualification for the office has been met. 
- 29 -

It is reasonable to assume that, in conducting this investigation, a county 

election commission would have authority to require a candidate to produce 

proof of the certification required by T.C.A. § 8-8-102(a)(7). Without such 

authority county election commissions would have no way of obtaining the 

information they may need to satisfy their duty to determine whether a 

challenged candidate is qualified for office.

Tenn. Att’y Gen. Op. 94-108 (Sept. 20 1994) (emphasis added) (citations omitted).

We agree. The Election Code imposes upon the Coordinator and county elections 

commissions an affirmative duty to carry out an express and specifically defined 

objective, namely, to ensure that only eligible, qualified candidates are placed on 

Tennessee’s ballots. These Election Code provisions carry with them, by necessary 

implication, the authority to take reasonably necessary measures to effectuate the

legislative mandate. See In re Sentinel Trust Co., 206 S.W.3d at 519; Medicine Bird 

Black Bear White Eagle, 63 S.W.3d at 768-69; Sanifill of Tenn., Inc., 907 S.W.2d at 810. 

Given the inexorable deadlines involved in elections, what measures are reasonably 

necessary may depend on the circumstances, including the nature of the qualification that 

is challenged, the difficulty of resolving the challenge, and how far in advance of the 

election the challenge arises.

In her dissent, Justice Clark acknowledges Tennessee caselaw holding that an 

agency may have powers required by necessary implication to fulfill its statutory 

mandate, but she argues that this well-settled principle has no application to Tennessee’s 

Election Coordinator or to county election commissions.

28 This highlights a juncture at 

which the majority and Justice Clark’s dissent part ways. Seeing that the Election Code 

does not explicitly address whether or how a county election commission is to resolve 

questions about a candidate’s qualifications, Justice Clark concludes that the legislature 

did not intend for a county election commission to have powers not explicitly set out in 

the Election Code and instead intended for county election commissions to bring such 

questions to a court. In contrast, we focus on the legislature’s policy decision to entrust

the Coordinator and county election commissions with the joint duty to make certain that 

only qualified persons are placed on Tennessee’s election ballots. We conclude from this 

policy decision that the legislature would not have intended for us to construe the 

Election Code in a manner that would deny county election commissions the authority

necessary for them to fulfill their statutory duties. 

 

28 Justice Clark’s argument is based in part on observations regarding “the partisan nature of 

county election commissions.” We note that the record in this case indicates that all members of the 

Election Commission present at the hearing voted in favor of placing Mr. Pemberton on the ballot.
- 30 -

Justice Clark’s dissent also seeks to de-link the statutory duty of county election 

commissions to ensure that ballots contain “only the names of candidates who have 

qualified” from the statutory duty of 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.” See Tenn. Code Ann. §§2-5-

202, 2-11-202(a)(12).

29 We decline to do so. Under the facts of this case, the duties and 

implied powers of the Coordinator and the Election Commission must be viewed 

together. In this lawsuit, Mr. McFarland named as defendants both the Coordinator and 

the Election Commission. Moreover, when the Election Commission was confronted 

with Mr. Hall’s complaint regarding Mr. Pemberton’s residency, it consulted the 

Coordinator, whose statutory duties require him to “[a]dvise election commissions, 

primary boards, and administrators of elections as to the proper methods of performing 

their duties” and “[a]uthoritatively interpret the election laws for all persons 

administering them.” Tenn. Code Ann. § 2-11-202(a)(3)-(4). Via speakerphone, the 

Coordinator was present at the Election Commission’s hearing on Mr. Pemberton’s 

residency. Thus, in the context of this case, the duties and implied authority of the 

Election Commission and the Coordinator are interrelated and must be analyzed as such. 

Therefore, respectfully, we do not agree with Justice Clark’s separation of the Election 

Commission from the Coordinator under the facts of this case. Overall, we conclude that, 

in enacting the Election Code, the legislature intended for both the Coordinator and 

county election commissions to have authority that “encompasses all express and 

implied powers necessary to fulfill the legislative scheme that [they have] been entrusted 

to administer.” In re Virtua-W. Jersey Hosp., 945 A.2d at 698. 

 

29 Justice Clark’s dissent argues that a “qualified” candidate, as used in these statutes, “simply 

refers to a candidate who has filed a nominating petition that meets the statutory requirements and 

deadlines.” Under this interpretation, a candidate would be “qualified” within the meaning of these 

statutes if he merely filed a nominating petition that appeared on its face to meet the constitutional and 

statutory requirements, regardless of whether the candidate actually met the requirements. We disagree. 

We read the term “qualified” in its normal and natural sense to include requiring candidates to actually

fulfill the applicable residency requirement. See Hatcher, 521 S.W.2d at 800-03 (referring to allegations 

that defendant Hatcher did not meet the constitutional residency requirement for judges as asserting that 

he was “disqualified from holding the office to which he was elected” and “constitutional disqualification 

of the winning candidate”). 

Justice Clark’s dissent also indicates that some statutes regarding the Coordinator’s duties should 

not be considered because they use the term “ineligible.” We do not view any distinction between the 

terms “disqualified” and “ineligible” as having a bearing on our analysis of the issues presented in this 

case. See id. at 800-04 (referring variously to the contention that defendant Hatcher did not meet the 

constitutional residency requirement for judges as “constitutional disqualification” or “ineligible” to hold 

the office). 
- 31 -

Both Mr. McFarland and Justice Clark’s dissent argue that the quasi-judicial 

hearing conducted by the Coordinator and the Election Commission was an 

unsatisfactory way to determine whether Mr. Pemberton was a resident of Roane County. 

Among other things, both observe that Mr. Pemberton’s statement to the Election 

Commission was not sworn, and the interested parties did not have the right to engage in 

discovery. In addition, Mr. McFarland claims to have discovered some additional facts 

that were not brought to the attention of the Election Commission in the hearing.

We note that, even though Mr. McFarland was Mr. Pemberton’s opposing 

candidate in the circuit judge election, Mr. McFarland nevertheless chose not to 

participate in the Election Commission hearing.

30 Had he participated, he could have 

raised his concerns about the proceedings, such as the fact that Mr. Pemberton’s 

statement was unsworn. 

In this case, both the Coordinator and the Election Commission proceeded in a 

deliberate but timely fashion when a question was raised regarding Mr. Pemberton’s 

residency. After receiving Mr. Hall’s complaint—on the form the Election Commission 

had supplied to him—the Commission sought guidance from Coordinator Goins. After 

consulting with Mr. Goins, the Election Commission set Mr. Hall’s complaint for a 

formal hearing at their regular meeting and notified the public of the hearing. It 

permitted Mr. Hall (via retained counsel) and Mr. Pemberton to submit pre-hearing 

evidence and legal briefs to support their positions. No objection was made to the 

decision by the Election Commission and Coordinator Goins to hold a hearing to resolve

the issue of Mr. Pemberton’s residency.31 

Under the facts of this case, holding a quasi-judicial hearing was a reasonably 

necessary measure to enable the Coordinator and the Election Commission to make a

decision on whether to certify Mr. Pemberton on the ballot as a qualified candidate for 

the office of Circuit Court Judge for the Ninth Judicial District. The Election Commission 

hearing permitted both parties to fully present their positions, and allowed other 

interested parties (including Mr. McFarland had he chosen to do so) to participate, all 

 

30 Mr. McFarland has explained that he did not act as the legal advisor to the Election 

Commission because of a conflict of interest, but his argument appears to conflate his participation as 

legal counsel with his participation as an interested party. Any conflict of interest as legal counsel would 

not have precluded Mr. McFarland from participating in the hearing as the opposing candidate for the 

same position. Mr. McFarland has offered no reason for his decision not to participate in the hearing as 

an interested party. 

31 In fact, in his presentation to the Election Commission, counsel for Mr. Hall told the Election 

Commission, “[I]t is your job, commissioners, to make the decision” on Mr. Pemberton’s residency. 
- 32 -

open to the public. The Election Commission was able to receive the necessary 

information and make its decision in time for its own preparation for early voting and 

Election Day, and in time for the candidates, their contributors, and voters to act in light 

of the residency decision. 

A prompt, efficient resolution to questions regarding candidate qualifications 

protects the integrity of the electoral process and serves the public interest by ensuring at 

an earlier stage that the candidates on the ballot are eligible to hold office. Under the 

Election Code, the Coordinator and the Election Commission had the implicit authority to 

conduct the quasi-judicial hearing in order to effectively carry out their joint duty to place 

only qualified candidates on the ballot. See, e.g., In re Sentinel Trust Co., 206 S.W.3d at 

519; Medicine Bird Black Bear White Eagle, 63 S.W.3d at 768-69. Accordingly, we 

hold that the Election Commission in this case was authorized to conduct a quasi-judicial 

proceeding on Mr. Hall’s complaint challenging Mr. Pemberton’s residency. 

IV. Judicial Review of Administrative Decision

In the course of ascertaining whether the Election Commission had authority to 

make a factual determination on Mr. Pemberton’s residency, we have already determined 

that the Election Commission actions at issue in this case constituted a quasi-judicial 

administrative decision. This holding is important in another context; the nature of the

administrative action drives the type of judicial remedy available.

The threshold question in determining whether an administrative decision is 

subject to judicial review by common-law writ of certiorari is whether the administrative 

body performed a legislative or a quasi-judicial function.32 McCallen v. City of 

Memphis, 786 S.W.2d 633, 638 (Tenn. 1990) (citing Fallin, 656 S.W.2d at 341). 

“Common law certiorari is available where the court reviews an administrative decision 

in which that agency is acting in a judicial or quasi-judicial capacity.” Davison v. Carr, 

659 S.W.2d 361, 363 (Tenn. 1983); see Ben H. Cantrell, Review of Administrative 

Decisions by Writ of Certiorari in Tennessee, 4 Mem. St. U. L. Rev. 19, 20 (Fall 1973) 

(noting that the common-law writ of certiorari is available to review judicial or quasijudicial actions of administrative bodies). The common-law writ is not available if the 

administrative decision at issue was legislative in nature; the judicial remedy for an 

erroneous legislative administrative action is a suit for declaratory judgment. Fallin v. 

Knox Cnty. Bd. of Comm’rs, 656 S.W.2d 338, 342 (Tenn. 1983); State ex rel. Moore & 

Assocs. v. West, 246 S.W.3d 569, 575 (Tenn. Ct. App. 2005).

 

32 “The terms ‘quasi-judicial’ and ‘administrative’ are interchangeable in this context.” State ex. 

rel. Moore & Assocs. v. West, 246 S.W.3d 569, 575 (Tenn. Ct. App. 2005).
- 33 -

Thus, if the agency’s act is quasi-judicial, the proper method of challenging the 

governmental action is through common-law writ of certiorari, whereas a legislative 

action must be challenged by filing a declaratory judgment action. See McCallen, 786 

S.W.2d at 638-40; Fallin, 656 S.W.2d at 342. “This distinction in remedies is made 

because [quasi-judicial] determinations . . . are accompanied by a record of the evidence 

produced and the proceedings had in a particular case, whereas, [legislative acts are] not 

ordinarily accompanied by a record of evidence.” Fallin, 656 S.W.2d at 342; see 

Cantrell, 4 Mem. St. U. L. Rev. at 20. 

As we have observed, the Election Commission’s hearing in this case had many of 

the hallmark characteristics of an adversarial judicial proceeding.33 After hearing the 

evidence and considering the governing Election Code provision, the Election 

Commission members voted to certify Mr. Pemberton as a qualified candidate on the 

ballot. Because the Election Commission was performing a quasi-judicial function, its 

decision was subject to judicial review by common-law writ of certiorari.

In arguing why the Election Commission hearing should not be deemed quasijudicial, Justice Clark points out ways in which the proceedings did not follow judicial 

protocols. For example, her dissent notes that the witnesses were not placed under oath 

and the Rules of Evidence were not followed. We agree with the Court of Appeals below 

that “the hearing lacked the full formality of a judicial proceeding, but that is not the 

standard for a quasi-judicial act to which Tenn. Code Ann. § 27-9-101 would apply.”

McFarland, 2015 WL 7166407, at *4; see generally Cantrell, 4 Mem. St. U. L. Rev. at 

20. A variety of agency decisions not necessarily made in conformity with judicial 

conventions have been deemed administrative or quasi-judicial decisions reviewable via a 

petition for a writ of certiorari. See, e.g., McCallen, 786 S.W.2d at 640-41 (holding that 

decision of city council approving zoning of development was administrative or quasijudicial, and thus reviewed under a common law writ of certiorari); Fallin, 656 S.W.2d at 

342 (“[T]he remedy of certiorari . . . will continue to be the proper remedy for one who 

seeks to overturn the determination of a Board of Zoning Appeals. . . .”); Davison, 659 

S.W.2d at 362 (holding that, in an ouster proceeding, decision of Board of 

Commissioners of the City of Watauga was properly reviewed by common-law writ of 

certiorari); Moore & Assocs., 246 S.W.3d at 575 (“The decision of whether to grant a 

building permit, for example, is an administrative act, even if made by a legislative 

 

33 For example, each side was permitted to submit evidence and briefs in advance. At the 

beginning of the hearing, the chairman outlined the law governing the Commission’s factual 

determination. The parties were allowed to make arguments. Other interested citizens were allocated 

time to give statements on behalf of the parties. Importantly, a court reporter made a record of the 

hearing. See Cantrell, 4 Mem. St. U. L. Rev. 19 at 20 (quoting Louis L. Jaffe, Judicial Control of 

Administrative Action 166, 173 (1965)) (noting that the term “judicial” refers to any proceeding between 

parties “where decision is to be taken on a record made at a hearing required by law”). 
- 34 -

body.”) (citing McCallen, 786 S.W.2d at 639). Therefore, despite the fact that the 

Election Commission hearing was not governed by strict judicial rules,34 our view is in 

line with that of the Court of Appeals: “The Commission applied existing law to the facts 

at hand to reach a decision, created a record of the proceeding, and issued a determination 

that authorized the Commission to certify the ballots without requiring approval of the 

board’s decision from another government body. For these reasons, we find the hearing 

was quasi-judicial.” McFarland, 2015 WL 7166407, at *4.

In their dissents, Justices Clark and Lee both claim that the Election Commission’s 

vote and decision to place Mr. Pemberton on the ballot was not an “order or judgment” 

within the meaning of section 27-9-102. The decision of the Election Commission to 

place Mr. Pemberton on the ballot was no less a reviewable “order or judgment” than a 

resolution of a city council approving a planned development, see, e.g., McCallen, 786 

S.W.2d at 634, or a vote by a municipal board of commissioners to remove one of their 

members from office, see Davison, 659 S.W.2d at 362. As the Election Commission’s 

final administrative action, its vote and certification of Mr. Pemberton as a candidate for 

circuit court judge for the Ninth Judicial District constituted its “final order or judgment” 

within the meaning of section 27-9-101. Thus, we must respectfully disagree with both 

dissents’ argument that the decision of the Election Commission was not reviewable by a 

petition for a writ of certiorari based on the lack of a final order or judgment. 

We next consider Mr. McFarland’s standing to file a petition seeking judicial 

review of the Election Commission’s decision on Mr. Pemberton’s residency. Tennessee 

Code Annotated section 27-9-101 authorizes “[a]nyone who may be aggrieved by any 

final order or judgment of any board or commission functioning under the laws of this 

state” to seek judicial review of the administrative decision by filing a petition for writ of 

certiorari in state court.35 See Metro. Gov’t of Nashville v. Bd. of Zoning Appeals of 

 

34 Justice Clark’s dissent criticizes informalities in the Election Commission hearing, such as 

Election Commission members addressing Mr. Pemberton by his first name and the Election Commission 

chair’s acknowledgment that he had known a speaker “a long time.” We do not believe that these 

informalities signify any impropriety in the Election Commission proceedings. 

35 As we explained in Stewart v. Schofield, Tennessee Code Annotated section 27-8-101 codifies 

the common law writ of certiorari, and section 27-9-101 pertains to review of administrative decisions. 

368 S.W.3d at 460 n.3. Section 27-8-101 provides: 

The writ of certiorari may be granted whenever authorized by law, and also in all 

cases where an inferior tribunal, board, or officer exercising judicial functions has 

exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the 

court, there is no other plain, speedy, or adequate remedy. 

Tennessee Code Annotated section 27-9-101 provides: 
- 35 -

Nashville, 477 S.W.3d 750, 757 (Tenn. 2015); Stewart v. Schofield, 368 S.W.3d 457, 460 

& n.3 (Tenn. 2012). The next statute provides the statute of limitations for such actions, 

and specifies that the petition for the writ must be sought “within sixty (60) days from the 

entry of the order or judgment” to be reviewed. Tenn. Code Ann. § 27-9-102.

A party with standing to file a petition for writ of certiorari under section 27-9-101 

is “anyone who may be aggrieved” by the administrative decision at issue. We have 

recognized:

The doctrine of standing is used to determine whether a particular plaintiff 

is entitled to judicial relief. Knierim v. Leatherwood, 542 S.W.2d 806, 808 

(Tenn. 1976). It is the principle that courts use to determine whether a 

party has a sufficiently personal stake in a matter at issue to warrant a 

judicial resolution of the dispute. SunTrust Bank, Nashville v. Johnson, 46 

S.W.3d 216, 222 (Tenn. Ct. App. 2000). Persons whose rights or interests 

have not been affected have no standing and are, therefore, not entitled to 

judicial relief. Lynch v. City of Jellico, 205 S.W.3d 384, 395 (Tenn. 2006).

“The sort of distinct and palpable injury that will create standing must be an 

injury to a recognized legal right or interest.” Wood v. Metro. Gov’t of 

Nashville and Davidson County, 196 S.W.3d 152, 158 (Tenn. Ct. App. 

2005). Such a legal right or interest may, but not must, be created or 

defined by statute.

Metro. Gov’t of Nashville, 477 S.W.3d at 755 (quoting State v. Harrison, 270 S.W.3d 21, 

27-28 (Tenn. 2008)). “Extending the authority to appeal and to seek judicial review to all 

persons who are ‘aggrieved’ [under section 27-9-101] reflects an intention to ease the 

strict application of the customary standing principles.” City of Brentwood v. Metro. Bd. 

of Zoning Appeals, 149 S.W.3d 49, 57 (Tenn. Ct. App. 2004) (quoting Federal Election 

Comm’n v. Akins, 524 U.S. 11, 19 (1998)); see Roten v. City of Spring Hill, No. M2008-

02087-COA-R3-CV, 2009 WL 2632778, at *3 (Tenn. Ct. App. Aug. 26, 2009).

In this case, the question of standing presents in an unusual procedural context. 

Ordinarily, standing is raised by a defendant who seeks to have the case dismissed based 

on the petitioner’s lack of standing; the petitioner then responds by arguing that he or she 

has the required special interest or special injury to maintain the suit. This case presents 

the converse. Mr. McFarland argues that he did not have standing to seek judicial review 

 

Anyone who may be aggrieved by any final order or judgment of any board or 

commission functioning under the laws of this state may have the order or judgment 

reviewed by the courts, where not otherwise specifically provided, in the manner 

provided by this chapter. 
- 36 -

of the Election Commission’s decision, so he did not forgo an opportunity for judicial 

review of the Election Commission’s decision. Mr. McFarland asserts that he could not 

have been “aggrieved” as that term is used in section 27-9-101 because he was not a party 

to the administrative proceeding and he did not attend or participate in the hearing.36 He 

further contends that he did not suffer a legally cognizable injury as a result of the 

Election Commission’s decision because the Commission proceedings took place in 

advance of the election. Mr. McFarland claims that he could not have been “aggrieved” 

until after he was defeated in the election by Mr. Pemberton. Thus, he was not an 

aggrieved party and could not have sought judicial review of the Election Commission’s 

decision under section 27-9-101.37 

This question requires us to construe section 27-9-101.

38 As we have noted, the 

role of this Court in statutory interpretation is “to assign a statute the full effect of the 

 

36 In her dissent, Justice Clark wonders “how anyone, particularly someone who did not 

participate in the hearing, could have discerned that” judicial review of the Election Commission’s 

decision to place Mr. Pemberton on the ballot could be obtained through a petition for a writ of certiorari. 

She notes that “nothing in the record indicates that Mr. McFarland was advised that he could seek judicial 

review of the Election Commission’s determination.” As explained below, this Court did not make the 

choice to permit someone who is not a party to administrative proceedings to file a petition for a writ of 

certiorari to review the administrative decision; that was a policy decision made by the legislature when 

section 27-9-101 was enacted in 1932. Although Mr. McFarland chose not to participate in the Election 

Commission’s public hearing on Mr. Pemberton’s residency, it is undisputed that he had actual

knowledge of it. As to anyone advising Mr. McFarland that he could seek judicial review of the Election 

Commission’s decision, we note that Mr. McFarland is not only an attorney, he was the county attorney 

for the Election Commission itself. And he sought to be elected as a trial judge for that judicial district. 

We do not think that the Election Commission was obliged to advise Mr. McFarland of his legal rights 

with respect to its decision.

 

37 In support of his argument, Mr. McFarland cites the reasoning of the Michigan intermediate 

appellate court in Martin v. Secretary of State, 760 N.W.2d 726 (Mich. Ct. App. 2008). He fails to note, 

however, that the intermediate appellate decision in Martin was reversed. See Martin v. Secretary of 

State, 755 N.W.2d 153, 154 (Mich. 2008). 

38 Instead of analyzing section 27-9-101, Justice Lee asserts that “[n]o candidate should have to 

spend time and money during a campaign to litigate an issue that would be rendered moot by the 

candidate’s win at the polls.” Respectfully, a candidate’s preference in this regard is not relevant to our 

legal interpretation of section 27-9-101; it is safe to assume that many claimants facing the expiration of 

an applicable limitations period have reasons why they would prefer not to file their lawsuit at a given

time. In enacting section 27-9-101, the legislature did not carve out an exception for persons who might 

prefer not to have to meet its accompanying statute of limitations. Our job in this appeal is to use 

established legal principles to interpret the statutes and then apply them to the facts of this case. 

Justice Lee’s dissent also makes assertions such as “the majority’s decision renders the election 

contest statute meaningless.” Again, this is hyperbole, not legal analysis. Justice Lee’s dissent offers no 

explanation on how she would expect the Coordinator and county election commissions to discharge their 
- 37 -

legislative intent without restricting or expanding the intended scope of the statute.”

Metro. Gov’t of Nashville, 477 S.W.3d at 756 (citing Lee Med., Inc. v. Beecher, 312 

S.W.3d 515, 526 (Tenn. 2010), and Larsen–Ball v. Ball, 301 S.W.3d 228, 232 (Tenn. 

2010)). In doing so, we give the words of the statute “their natural and ordinary meaning 

in the context in which they appear and in light of the statute’s general purpose.” Id. 

(quoting Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012)).

In Metro Gov’t of Nashville v. Bd. of Zoning Appeals of Nashville, we were 

called upon to construe the phrase “anyone who may be aggrieved” as used in section 27-

9-101. In that case, the Nashville zoning board granted a private party a permit to erect 

one billboard and a permit to improve another one. Metro. Gov’t, 477 S.W.3d at 753. 

The Metropolitan Government of Nashville (“Metro”), while apparently not a party to the 

zoning board proceedings, filed a petition for a writ of certiorari seeking judicial review 

of the zoning board’s decision. Id. The chancery court held that Metro did not have 

standing to file the petition. Metro appealed, and the Court of Appeals reversed. Id. at 

754. We granted permission to appeal.

On appeal, the Metro Gov’t Court noted that “Section 101 refers to ‘anyone,’” and 

added that the Court was not “aware of any . . . authority limiting the definition of the 

term ‘anyone,’ as that word is used in Section 101, to exclude Metro as a potential 

petitioner.” Id. at 757. The Court stated: “Section 101 ‘[e]xtend[s] the authority . . . to 

seek judicial review [of boards of zoning appeals decisions] to all persons who are 

‘aggrieved’ [and] reflects an intention to ease the strict application of the customary 

standing principles.’” Id. at 758 (quoting City of Brentwood, 149 S.W.3d at 57); see also 

Roten, 2009 WL 2632778, at *3 (noting that section 27-9-101 should be interpreted 

broadly). On this basis, the Metro Gov’t Court held that Metro fell within the scope of 

the phrase “anyone who may be aggrieved by any final order or judgment of any board or 

commission functioning under the laws of this state” in section 27-9-101. Id. at 757-58.

As in Metro Gov’t, we are not aware of any authority limiting the definition of the 

term “anyone” as used in section 27-9-101 to exclude Mr. McFarland. Id. at 757. It is 

undisputed that Mr. McFarland had notice of the Election Commission hearing on Mr. 

Pemberton’s residency, and he is not excluded on the basis that he chose not to 

participate in it. Similarly, we have little trouble concluding that Mr. McFarland had a 

cognizable injury and was “aggrieved” by the Election Commission’s decision to place 

Mr. Pemberton on the ballot for circuit judge of the Ninth Judicial District. Mr. 

Pemberton was Mr. McFarland’s opponent for the same position; in fact, he was Mr. 

 

joint statutory duty to ensure that only qualified candidates are placed on the ballots if they are prohibited 

from making even a routine initial determination on a factual question regarding a candidate’s 

qualifications. 
- 38 -

McFarland’s only opponent. The Election Commission’s factual determination on Mr. 

Pemberton’s residency and the resulting decision to place him on the ballot, if erroneous, 

forced Mr. McFarland into a contested election against an opponent who was not 

qualified to hold office. See Wood, 196 S.W.3d at 158; see also Martin v. Sec’y of State, 

755 N.W.2d 153, 154 (Mich. 2008) (“[A] candidate for elective office suffers a 

cognizable injury in fact if, due to the improper interpretation and enforcement of 

election law, he or she is prevented from being placed on the ballot or must compete 

against someone improperly placed on the ballot.”). This is the same type of special 

interest held to support standing for a candidate who files a pre-election declaratory 

judgment action challenging the opposing candidate’s qualifications to hold office. See 

Comer v. Ashe, 514 S.W.2d at 742 (upholding the standing of a state senate candidate in 

a pre-election declaratory judgment action against his opponent for alleged ineligibility to 

hold office based on age). 

Thus, Mr. McFarland had a sufficient special interest and/or personal stake in the 

outcome of the Election Commission’s decision so as to qualify as “anyone who may be 

aggrieved” by the decision. His decision not to participate in the Election Commission 

hearing does not change the fact that he had notice of it and had a personal stake in the 

outcome of it. Therefore, he had standing to seek judicial review of the Election 

Commission’s final decision under section 27-9-101. 

In sum, Mr. McFarland had an available statutory remedy, to seek judicial review 

of the Election Commission’s decision under section 27-9-101, and he failed to avail 

himself of this statutory remedy during the election with Mr. Pemberton. We next 

consider the consequences of his failure to do so. 

V. Gravamen of the Complaint

Mr. McFarland filed his complaint in this case with the heading “Complaint to 

Contest Election.” It cites Tennessee Code Annotated section 2-17-101, Tennessee’s 

election contest statute, as the basis for his claim for relief. 

The Court of Appeals below held that, despite being styled as an election contest,

Mr. McFarland’s complaint was in substance an appeal from the Election Commission’s 

administrative decision. The appellate court reasoned that “the appropriate method for 

obtaining judicial review of [a quasi-judicial action of an administrative body] is by 

common law writ of certiorari.”39 McFarland, 2015 WL 7166407, at *7 (quoting Moore 

 

39 The trial court had also held that Mr. McFarland’s complaint was barred by the 60-day statute 

of limitations, reasoning that “the proper method of challenging the Election Commission’s determination 

was by a writ of certiorari as provided by in the Tenn. Code Ann. [§] 27-9-102.” 
- 39 -

& Assocs., 246 S.W.3d at 575). As such, the court treated Mr. McFarland’s complaint as 

a petition for writ of certiorari. Because a petition for a writ of certiorari must be filed 

within sixty days of the administrative decision, and Mr. McFarland’s complaint was 

filed well outside the 60-day limitations period, the appellate court held that it was timebarred. Id. (citing Tenn. Code Ann. § 27-9-102). 

In the case upon which the Court of Appeals relied, Moore & Associates, the local 

zoning board administrator refused to issue a certificate of compliance for the plaintiff’s 

hotel. 246 S.W.3d at 573. The plaintiff did not appeal the administrator’s decision to the 

zoning board, as provided by statute. Instead, the plaintiff filed a declaratory judgment 

action against the zoning administrator, asking the court to declare that the hotel was in 

compliance with the zoning code and require the zoning administrator to issue a 

certificate of compliance. Id. The trial court granted the relief sought, and Metro 

government appealed. Id. at 573-74. 

On appeal, the Court of Appeals in Moore & Associates noted that the plaintiff 

chose not to appeal the administrator’s decision to the zoning board. A zoning board’s 

decision on whether to issue a certificate of compliance is a quasi-judicial decision, not a 

legislative one, the appellate court held. As such, the zoning board’s decision is 

reviewable by a court only through a writ of certiorari, and only after all administrative 

remedies have been exhausted. Id. at 577-78, 581. By filing a declaratory judgment 

action based on the decision of the zoning administrator, the appellate court surmised, the 

plaintiff sought to circumvent the narrower standard of review applicable to a petition for 

writ of certiorari.40 After reviewing the complaint, the appellate court viewed it as, in 

effect, a petition for writ of certiorari. It held: “Regardless of the name given to the 

 

40 The court in Moore & Associates explained the apparent reason for the plaintiff’s decision to 

file a declaratory judgment action as opposed to a petition for writ of certiorari—to avoid the restrictive 

standard of review associated with the writ:

The primary consequence of a determination that a party must seek judicial 

review through the common law writ of certiorari procedure is that the trial court must 

apply a limited standard of review to decisions already made by administrative officials, 

rather than address the issue de novo as the initial decision maker.

Under the limited standard of review in common law of writ of certiorari 

proceedings, courts review a lower tribunal’s decision only to determine whether that 

decision maker exceeded its jurisdiction, followed an unlawful procedure, acted illegally, 

arbitrarily, or fraudulently, or acted without material evidence to support its decision.

Moore & Assocs., 246 S.W.3d at 574 (citing cases); see Tenn. Code Ann. § 27-8-101; see also Stewart, 

368 S.W.3d at 463; 421 Corp. v. Metro Gov’t of Nashville and Davidson Cnty., 36 S.W.3d 469, 474 

(Tenn. Ct. App. 2000). 
- 40 -

original pleading, courts should look to the substance of the action.”41 Id. at 581 (citing 

Johnson v. Metro. Gov’t for Nashville Davidson Cnty., 54 S.W.3d 772, 774 (Tenn. Ct. 

App. 2001)); see also id. at 576 (“Regardless of the labels assigned to the complaint or 

the language of the requests for relief, the nature of Moore & Associates’ claim is clear 

from its complaint.”). 

The legal principle referenced in Moore & Associates is longstanding in 

Tennessee. In this Court’s recent decision in Benz-Elliot v. Barrett Enters., L.P., the 

Court referred to it as the “oft-recited law in this State that to determine the governing 

statute of limitations, a court must ascertain the ‘gravamen of the complaint.’ ” 456 

S.W.3d 140, 147 (Tenn. 2015) (internal quotations omitted). Benz-Elliot clarified that, 

for a complaint that contains multiple claims, courts must look to the gravamen of each 

claim, rather than to the gravamen of the entire complaint, to determine the statute of 

limitations applicable to a given claim. Id. at 148-49, 51. To determine the gravamen of 

a claim, it held, “a court must first consider the legal basis of the claim and then consider 

the type of injuries for which damages are sought.” Id. at 151. 

The principle of determining the statute of limitations according to the gravamen 

of the claim has been applied by Tennessee courts in a number of contexts. See, e.g., 

Dehoff v. Attorney Gen., 564 S.W.2d 361, 363-64 (Tenn. 1978) (determining that an 

action for declaratory judgment was untimely because in substance it was actually an 

election contest); Vance v. Schulder, 547 S.W.2d 927, 931 (Tenn. 1977) (“At various 

stages of this litigation, the parties have relied upon each of five (5) possible statutes of 

limitations . . . . The applicable statute of limitations in a particular cause will be 

determined according to the gravamen of the complaint.”). 

Specifically, this reasoning has been applied to dismiss a declaratory judgment 

action where the gravamen of the complaint was a petition for writ of certiorari and it was

filed outside the 60-day time limitation for such a petition. For example, in Johnson v. 

Metropolitan Gov’t for Nashville Davidson County, the plaintiff was terminated from his 

position as a registered nurse. 54 S.W.3d at 773. The termination letter stated that the 

plaintiff’s termination was done “in accordance with the Rules and Regulations of the 

Metropolitan Department of Hospitals,” for which no administrative review was 

available. Id. The plaintiff filed an action for declaratory judgment in chancery court,

seeking several declarations related to his allegedly wrongful termination. Id. The 

appellate court treated the complaint as a petition for writ of certiorari because “the only 

mechanism by which a court may review such administrative decisions” is a petition for 

writ of certiorari under section 27-9-101. Id. at 774. The complaint was filed well after 

 

41 The court ultimately dismissed the petition because the plaintiff had not exhausted its 

administrative remedies by first appealing to the zoning board. Moore & Assocs., 246 S.W.3d at 582.
- 41 -

the 60-day limit for a writ of certiorari, so the appellate court held that “the decision of 

the Hospital in dismissing [the plaintiff] was no longer reviewable” and dismissed the 

case. Id. at 774-75; see also Campbell v. Bedford Cnty. Reg’l Planning Comm’n, No. 

M2003-00025-COA-R3-CV, 2004 WL 626724, at *4-5 (Tenn. Ct. App. Mar. 29, 2004) 

(dismissing complaint for declaratory judgment because it was in substance a petition for 

a writ of certiorari and was filed well beyond the 60-day statute of limitations for seeking 

the writ); Kielbasa, 2003 WL 21297315, at *4-5 (same); see also Davidson v. Carr, 659 

S.W.2d 361, 363 (Tenn. 1983) (stating that “[c]ommon law certiorari is available where 

the court reviews an administrative decision in which that agency is acting in a judicial or 

quasi-judicial capacity”); Case v. Shelby Cnty. Civil Serv. Merit Bd., 98 S.W.3d 167, 171 

(Tenn. Ct. App. 2002) (stating that a common-law writ of certiorari “is available from 

administrative decisions where an administrative board or agency is acting in a judicial or 

quasi-judicial capacity”). But see Bean v. Wilson Cnty. School Sys., 488 S.W.3d 782, 

789-90 (Tenn. Ct. App. 2015) (rejecting claim that decision of school administrators was 

reviewable by writ of certiorari because “[t]he entire certiorari scheme envisions a ‘final 

order or judgment’ before a board, commission, or officer exercising judicial or quasijudicial authority, with a record of the hearing preserved for judicial review”).

In light of these principles, we turn to the gravamen of Mr. McFarland’s 

complaint. As noted above, the complaint is designated as an election contest, filed 

pursuant to the election contest statute, Section 2-17-101. The sole basis for the election 

contest is Mr. McFarland’s allegation that Mr. Pemberton did not reside in the Ninth 

Judicial District one year prior to the election, which is constitutionally required for 

anyone who seeks to hold the office of circuit judge. In the first few pages of his 

complaint, Mr. McFarland details the facts upon which he bases his claim that Mr. 

Pemberton was a resident of Knox County during the year before the election. In 

paragraph 27 of the complaint, he alludes to the proceedings before the Election 

Commission: “Despite the fact that a qualified voter in Roane County, Tennessee, 

challenged Defendant Pemberton’s qualifications as a legal resident in the Ninth Judicial 

District, Defendant Election Commission certified, without debate, Defendant as a 

candidate and allowed his name to be placed on the August 7, 2014 election ballot.” In 

his prayer for relief, Mr. McFarland asks that the election be declared void, solely on the 

basis of Mr. Pemberton’s alleged lack of residency in the Ninth Judicial District. 

In contrast to Benz-Elliot, Mr. McFarland’s complaint contains but one claim. It 

is apparent that the single claim in his complaint is premised on the same issue decided 

by the Election Commission in the pre-election hearing, namely, whether Mr. Pemberton 

lived in Knox County or Roane County during the requisite period prior to the election. 

He argues, in effect, that the Election Commission got it wrong. He seeks the same relief 

as would have been sought under a petition for writ of certiorari: constitutional 

disqualification of Mr. Pemberton for the office of circuit judge for the Ninth Judicial 
- 42 -

District. Under Benz-Elliot, considering the legal basis of Mr. McFarland’s claim and 

considering the type of injury for which he seeks relief, the gravamen of his claim is a 

petition for writ of certiorari, seeking judicial review of the Election Commission’s 

decision. 

As we have held, under section 27-9-101, Mr. McFarland was a party who was 

“aggrieved by [a] final order or judgment of” the Election Commission. He had standing 

to file a petition for writ of certiorari to obtain judicial review of the Commission’s 

decision. Considering the gravamen of Mr. McFarland’s complaint, the 60-day 

limitations period for a petition for writ of certiorari is the applicable statute of 

limitations. In other words, Mr. McFarland was required to file his action within sixty 

days of the Election Commission’s decision. Because he did not file the complaint until 

well after that time period, it must be dismissed as untimely. 

Our holding is based upon the peculiar facts in this case. It does not mean that Mr. 

McFarland was time-barred from filing an election contest based on any other ground.

Further, had the issue of Mr. Pemberton’s residency not been the subject of a quasijudicial decision of the Election Commission, Mr. McFarland would not have been timebarred from challenging Mr. Pemberton’s residency in an election contest. See Hatcher, 

521 S.W.2d at 803 (holding that candidate can file an election contest challenging 

residency). 

Justice Clark claims in her dissent that our ruling implicitly overrules Hatcher v. 

Bell. It does not. We readily acknowledge and “have no quarrel” with the Hatcher

holding, namely, that “an election contest is a proper proceeding to test the validity of an 

election on the charge that the candidate receiving the highest number of votes cast in the 

election has not complied with the residence requirement set forth in the Constitution and 

was ineligible on the day of the election to hold the office; and that . . . [a] candidate in 

the election[] is a proper party to institute the proceeding.” Hatcher, 521 S.W.2d at 803. 

The facts in Hatcher, however, did not include a prior administrative decision on the 

residency of the successful candidate in the election. The Court in Hatcher was not called 

upon to determine the applicable statute of limitations according to the gravamen of the 

petitioner’s complaint. In contrast, our task in this case is to determine the applicable 

statute of limitations.

In numerous cases, Tennessee courts have been called upon to determine the 

gravamen of a complaint because, as one commentator noted, “[t]he gravamen dictates 

which statute of limitation controls.” Donald F. Paine, Please Pass the Biscuits and 

Gravamen, Tenn. B.J., 20, 20 (1993); see also Benz-Elliott, 456 S.W.3d at 151 (citing 

Paine, 29 Tenn. B.J. at 20). Mr. McFarland is no different from any other claimant in this 

regard. Neither dissent offers any reason why the gravamen of Mr. McFarland’s 
- 43 -

complaint does not determine the statute of limitations applicable to his claim. Indeed, 

Justice Lee’s dissent responds to our holding primarily by imagining a series of

hypotheticals that purport to demonstrate that our decision will somehow encourage

manipulation of the electoral process.42 We must not, however, decide this case by 

conjuring up various scenarios that could result from one holding or another. Rather, we 

must base our decision on solid legal analysis and interpretation of the relevant statutes.

“It is well settled in this state that the gravamen of an action, rather than its 

designation . . . determines the applicable statute of limitations.” Pera v. Kroger Co., 674 

S.W.2d 715, 719 (Tenn. 1984). “[A] court must identify the gravamen of each claim 

alleged to determine the applicable statute of limitations. Identifying the gravamen of a 

claim requires a court to consider both the legal basis of the claim and the injury for 

which damages are sought.” Benz-Elliott, 456 S.W.3d at 141. In this appeal, we apply 

established legal principles to the facts presented. No more, no less. 

Under the facts of this case, the Election Commission decided the issue of Mr. 

Pemberton’s residency in a quasi-judicial proceeding and rendered a final decision that 

was reviewable through a petition for common law writ of certiorari under section 27-9-

101. Applying the legal principles enunciated in Benz-Elliot, the gravamen of Mr. 

McFarland’s claim is a petition for judicial review of the Election Commission’s 

decision, i.e., a petition for writ of certiorari. Because Mr. McFarland failed to file his 

complaint within the 60-day time limitation for filing a petition for writ of certiorari, this 

action is time-barred.

CONCLUSION

We hold that, by necessary implication, the Election Commission had the 

authority under Tennessee’s Election Code to hold a quasi-judicial hearing to resolve Mr. 

 

42 The implication that our decision encourages manipulation of the electoral process is ironic 

indeed, given the allegations of manipulation against Mr. McFarland in this case. As outlined above, Mr. 

Hall and Mr. McFarland knew each other well at the time Mr. Hall filed his administrative complaint 

objecting to Mr. Pemberton’s candidacy based on residency—Mr. Hall had been Mr. McFarland’s client. 

This fact was one reason why Mr. McFarland “recused” himself from acting as county attorney in the 

Election Commission hearing at issue. Mr. Pemberton quite publicly accused Mr. McFarland of 

manipulating the process by enlisting a voter—Mr. Hall—to challenge Mr. Pemberton’s residency. In 

this way, Mr. Pemberton claimed, Mr. McFarland got the Election Commission to resolve the issue of Mr. 

Pemberton’s residency before the election while retaining the opportunity for a “second bite at the apple” 

in the form of a post-election contest. Gamesmanship in elections can arise in any statutory framework, 

and we are confident that our Legislature was aware of this possibility when it enacted the Election Code 

and chose to confer upon the Coordinator and the county election commissions the joint duty to place 

only qualified candidates on the ballot. 
- 44 -

Hall’s complaint challenging the Mr. Pemberton’s residency and, thus, his eligibility to 

be placed on the ballot for Circuit Court Judge for the Ninth Judicial District. We hold 

that the Election Commission’s decision to certify Mr. Pemberton as a qualified 

candidate on the ballot was a final administrative decision subject to judicial review by 

common-law writ of certiorari. Mr. McFarland, who had actual notice of the Election 

Commission hearing, was “aggrieved” by the Election Commission’s final decision 

within the meaning of Tennessee Code Annotated section 27-9-101 and, therefore, had 

standing to file a petition for writ of certiorari. Looking at the gravamen of Mr. 

McFarland’s complaint, though it is styled as an election contest, it is essentially a 

petition for writ of certiorari seeking judicial review of the decision of the Election 

Commission and, thus, was subject to the 60-day statute of limitations for such a petition. 

Mr. McFarland’s complaint was filed well after expiration of the 60-day period, so we 

affirm the lower courts’ dismissal of the complaint as untimely. 

The decisions of the trial court and Court of Appeals are affirmed. Costs on 

appeal are to be taxed to Petitioner/Appellant William Thomas McFarland, for which 

execution may issue, if necessary.

_________________________________

 HOLLY KIRBY, JUSTICE