1 Tenn. Code Ann. § 9-1-101(a) (1999) provides that the fiscal year for state governm ent begins o n July 1 of each year an d ends on the following Ju ne 30.

2 T he budget do cument i ncludes pr

oposed operati

ng and capit

al expendi

tures f or the nex

t fiscal year

, Tenn. Code Ann. § 9-4-5101(a), (b) (1999), and the revenue es timate s for t

he same peri

od. Tenn. Code Ann. §§ 9-4-5101(c) , -5104. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE October 11, 2000 Session MARK A. MAYHEW, ET AL 

### . v. JOHN WILDER, ET AL 

### . Appeal from the Circuit Court for Davidson County No. 00C1833 Hamilton V. Gayden, Jr., Judge

No. M2000-01948-COA-R10-CV - Filed January 11, 2001

W ILLI AM C. K OCH , J R ., J., concur ring.

I concur with

the court’s conclusion that themembers of the 101st General Assembly did not violate either Tenn. Const. art. I, § 19, Tenn. Const. art. II, § 22, or the Tennessee Op en Meetings Act, Tenn. Code Ann. §§ 8-44-101, -108 (1993 & Supp. 2000), when certain committees and other groups of legislators h

eld secret meeti

ngs during the 2

000 legisla

tive s ession to consider

the state budget, the appropriations bill, and related revenue legislation. My

purpose in filing

this separate opinion is to emphasize three points. First, all departments of s tate g overnment, including the Legislative

Department, must adhere to the requirements of the Constitution of Tennessee. Second,
eventho u gh the Judicial Department has the sole constitutional prerogative to adjudge the constitutionality

of the conduct of

the Legisla

tive Department,

the Judicial Depar

tment’s power is itself circumscribed by the Constitution of Tennessee in order to maintain the proper separation of powers between the two departments. Third, our decision that the challenged mee tings v iolated neithe rTen n. Const. art. I, § 19, Tenn. Const. art. II, § 22, nor the Tenne ssee Open Meetings Act should not be misconstrued as an endorsement of the conduct at issue in this case.

I.

The events that gave rise to this dispute are not uncommon. They are p art of an annual,

wellorc hestr atedprocess played out each spring in the L egislative Plaza and the State Capitol that culmina tes in the enactment o f an appropriati

ons bill containing

the spending blue

print for state government

for the ensuing fiscal year. 1 This pr ocess begins every ye ar on February 1 when the Governor submits to the General Assembly a state budget 2 and the draft legislation

needed to enact
a balanced budget for the ensuing fiscal ye ar. It ends when the G

eneral Assembly

enacts an3 Senator Tim Burchett of Knoxville, referring to a meeti ng arrang

ed for a se

lect gr oup of state senat

ors to which he wa s n ot invited, ob served: “I feel like Rudolp h the red-no sed reinde er. I don’t get to play any reind eer games .” Bonna M. de la C ruz, Business Tax Studied in Secr et , T HE T ENNESSEAN , May 24, 2000, at 1A.
-2- appropriations bill and any other legislation necessary to generate the revenue needed for a balanced budget required by Tenn. Const. art. II , § 24. Anyone even re mo tely familiar with this process understands full well that the General Assembly’s public debates an d the eventual ad

option of an appro

priations bill an d accompanying
revenuebills represent only the tip of the iceberg as far as the General Assembly’s consideration of the State’s annual fiscal blueprint is concerned. Much more activity occurs behind the scenes in the offices of power and in other hideaways in and around Nashville shielded from public scrutiny. For at least the last half

of the twentieth c

entury, leg

islative leaders , consti tutional officers, admi nistrati on representatives, and others have met behind closed doors to hammer out spending and
revenueproposals that will please enough l

egislators to

assure their passage. Rather than being open to all legislators,

these meetings a

re open only

to those who, by virtue of their position or influence, have become part of the inner circle. 3

The news media

covering the Ge

neral Assembly

have been awar

e of this process f

or years. Whilenot approving of

it, the capitol h

ill press corps ha

s at least acquie

sced in it. Some medi

a representative

s, while writing stor

ies critical of th

e process,have attempted to best their colleagues by seeking copies

of the Governor’ s budg et or the results of the legislative leadership’s budget discussions before their public release. This arrangement appeared to have been general l y s ati sfactory

to all participant

s – both the legisla

tors and the news m

edia – at least unt

il the 101st General Assembly finally adjourne d.

Du ring its two -year life , the 101st Genera

l Assembly pr

oved to be one of th

e most contentious legislative sessions in recent history. Controversy swir led from its opening in January 1999 after the Gover

nor called for sw

eeping chang

es in the state tax system and presented a budget predicated

on raising $ 365 million in new revenue. At the Governor’s bidding, the General Assembly held a month-long special session during March and April 1999 to consider changing the state tax system but adjourned without acting. After reconvening in reg ular session, the General Assembly raised approximately $171.5 million in new consumer and business taxes, enacted an appropriations bill for the 1999-2000 fiscal year, and then adjourned on May 28, 1999.

The controv ersy

over taxes and spe

nding did not subsid

e when the Gener

al Assembly adjourned. Bolstered by a legislative committee’s conclusion tha t the stat e tax system was inadequate

to fund the serv ices needed to maintain Tennessee’s economic vitality, the Governor calledthe General Assembly into a second special session to consider his proposal to red

uce the state sales tax rate from 6% to 3 .75%, to eliminate t h e 6% state sales tax on groceries, to revise the businesstax structure, and to enact a flat 3.75% state income tax. This special session began on November

1, 1999, and ended abruptly on November 18, 1999. Despite a consensus that the

state tax system should be restructured, vocal public opposition to a state income tax, political partisanship, and a dispute betw een th e Senate

and the House of Representatives forestalled any floor4 We must construe the complaint in favor of t he plaintiffs and accept all the allegations of f

act as true because the State is appealing from the trial co urt’s denial of its mo tion to dismiss. Doe v. Sun dquist , 2 S.W.3d 919, 922 (Tenn. 1999); Riggs v. Burs

on , 941 S.W.2d 44, 47 (Tenn. 1997). The plaintiffs have alleged that throughout 2000 , the House Demo cratic Caucus, the Senate D emocratic Caucu s, the Senate Finance Co mmittee, the House Republican Caucus, the Joint Budget Conference Committee , and the leader s of the Senat

e and House of Representat iv es “delibera tely, repeated ly and flagrantly” conducted “secret, cl osed meeting s” to deli berate toward decisions and to make decisions regardin g the rev enue and budge

t bills that

were enact

ed and took ef

fect on J uly 1, 2000.

5 Tenn. Code Ann. § 9-4-5202 (199 9) requires the State Fund ing Boar d to provide the General Assembly and the Governor with periodic reports concerning the est imated ra

te of gr owth of the st ate’s economy and t

he esti mates of state tax and non-tax revenues.

6 Bonna M. de la C ruz & D uren Chee k, Lawm akers Ap prove a Budg et; Sund quist Vow s Veto , T HE T ENNES SEAN , June 23, 2000, at 1A.
-3- votes on changes in the state tax sy stem. Not long after adjournment of this session, the Governor threatened to call a third special session to complete work on restructuring the state tax system. The second regular session of the 101st General Assembly c onvened onJanuary

11, 2000. The Governor again placed restructuri ng the state’s tax system on the legislative agenda by presenting a proposed budget for the 2000-20 01 fiscal year that included $375 million in new
revenuefrom a revised state tax system. The Governor’s tax plan mirrored the plan he had submitted withoutsuccess to the second special legislative session. More than the usual beh ind-the-scen es maneuvering occurred over the ensuing month

s as the legislative l eadership and the Governor searched for common ground. Some of this maneuvering, according to the plai ntiffs, oc curred in secret meetings of leg

islative committee

s and other group s of legislators. 4 These efforts proved fruitless. Weighed down by the continuing vocal public opposition to a state income tax and the
rancor remaining from

the three unprod

uctive legis

l ative sessions in 19

99, the General A

ssembly eventually

abandoned its efforts to restructure the stat e tax sy stem and enacted the appropriations bill for the 2000-2001 fiscal year. The appropriations bill balanced the state budg et by raising the
revenueestimates beyond the official estimates of the State Funding Board 5 and by using nonrecurringrevenues to fund recurring expenses. The Governor, calling the Gener al Assembly’s effortsa “Fudge-It Budget,” 6 vetoedthe a ppropriations bill. The General Ass

embly lost no ti

me overriding the Governor’s veto and then adjourning sine die on June 28, 2000.

This lawsuit was filed in the Circuit Court fo r Davidson C ounty two day s after the 101st GeneralAssembly adjourned. Complaining of the GeneralAssembly’s “habitual and willful resort to secrecy,” an individual ci tizen, later j oined by memb ers of the print me

dia and several o

f their professional associations, asserted that theGeneral Assembly had violated Tenn. Const. art. I, § 19, Tenn. Const . art . II, § 22, and the Ten nes see O pen Meet ings Act by “d eli bera tel y, rep eat edl y a n d flagrantly conducting sec

ret, closed meetings of legislative committees.” The

y also asser

ted that this conduct had “undermined public confidence in the fiscal and governmental soundness of the State of Tennessee.” All of the plaintiffs requested declaratory r elief. Some plaintiffs als

o demanded that the trial court invalidate the appropriations bill and any other revenue bills enacted in violation of7 Tenn. Code Ann. § 8-44-105 states , in part, that any ac

tion taken at

a meeting in violation of t he Tennessee Open M eetings Act is vo id and of no effect.

8 Tenn. Code Ann. § 8-44-106(d) require s government enti ties found t

o have violated t

he Tennessee Open Meeting s Act to subm it semi-annual wr itten reports to the court rega rding their co mpliance w ith the Act.

9 The complaint names every member of the General Assembly as a defendant. One legislator, Representati ve Robert W. B riley of Nashv ille , later soug ht to be “real igned” as a plai

ntiff. The trial court

initia lly grant ed Representative Briley’s motion but later relegated him to the status of am icus curiae after striking him as a plaintiff and d ismissing him as a defend ant. This de cision has no t been app ealed. Th erefore, Re presentative Briley is the only membe r of the 101 st General A ssembly that is no t a defenda nt in this suit.
-4- the Tennessee Open

Meetings Act. 7 Other

plaintiffs insisted that the General Assembly should be required to report semi-an

nually to the courts on its compliance with the Tennessee Open Meetin gs Act. 8

On behalf of

all defendants, 9 the Attorney General and Reporter moved to dismiss the complaint on various procedural and substantive grounds, including lack of standing, legislative imm uni ty, and failure to state a claim. After the trial court denied the motion to dismiss and set the
case for an expedited trial, we granted the Attorney General’s Tenn. R. App. P. 10 application for
an extraordinary appeal. We took this step because the trial court’s decision to conduct a trial and to appoint a

constitutional law expert in accordance with Tenn. R. Evid. 702 & 706 departed from the accepted

and usual course of judicial proceedings. The pivotal questions in this case are issues of law that can be

dealt with quite sa

tisfactorily

based on the rec

ord as it stands.

II. S UBORDINATION OF THE G ENERAL A SSEMBLY TO THE C ONSTITUTI ON
The Constitution of Tenn

essee isthe tangible pro

duct of our citizen

s’ aspiration to live under the rule of law. It provides evidence of the solemn transaction, unfolding ever since 1796, by which the governed confer power on the government to prom ote a nd protect their peace, safety, and happiness. Tenn. Const. art. I, § 1. Thus, rather than being the source of the people’s rig hts, the Consti tution of Tennessee is the product of the exercise of the people’s inherent power of selfgovernment

that pre-existed the Constitution itself. Cummings v. Beeler , 189 Tenn. 151, 175-76, 223 S.W.2d 913, 923 (1949) ; Stra tton Claimants v. Mor ris Claimants , 89 Tenn. 497, 512-13, 15 S.W. 87, 90 (1891); Ridley v. Sherbrook , 43 Tenn. (3 Cold.) 569, 574-75 (1866).

No department of state governmen t transce nds the Constitution of Tennessee. Each department

derives its power and authority from the Constitution and must, in turn, sub ordinate itself to the Constitution’s requirements. Lynn v. Polk , 76 Tenn. 121, 130 (1881) (Turne y, J.). Thus, unli ke the Brit ish Par lia men t, o ur G ener al A sse mbl y’s p owe r is lim ite d an d res tra ine d by t h e Constitution. Moore v. Love , 171 Tenn. 682, 686-87, 107 S.W.2d 98 2, 983 (1937); Louisville & Nashville R .R. v. C ounty Court of Davidson , 33 Tenn. (1 Sneed ) 637, 670-71 (185

4); Smith v. Normant , 13 Tenn. (5 Yer.) 271, 273 (1833).10 Tenn. Const. art. II, § 3 vests all legislative au thority in the Ge neral Assem bly; Tenn. C onst. art. III, § 1 v ests

the executive power

in the Governor; a

nd Tenn. Const. art . VI, § 1 vests t he judicial

power in the Supreme Court and the circuit, chance ry, and other courts estab lished by the G eneral Asse mbly. T he Consti tution of Tennesse

e does not define the powers of each department in express term s. Richardson v. Young , 122 Tenn. 471,493, 125 S.W. 664, 668 (1910). However, t

he Supreme Cour

t of Tennes see recen

tly r estate d a simpli

fied des cripti

on of each of

these roles

when it noted that “[t]he legis lative branch has the authorit y to make, alter, and repeal the law; the executive branch administers and enforces the law; and the judicial bran

ch has the auth

ority to i nterpret and apply

the law.” Richardson v. Tennessee Bd. of Dentistry , 913 S.W .2d 446 , 453 (T enn. 199 5).
-5- Our decision that the GeneralAssembly an d its members did not v

iolate Tenn. Const.

art. I, § 19 or Tenn. Const. art. II, § 22 is based, not upon our conclusion that the Genera l Assembly is somehow exempt from complia nce with the Co

nstitution, but rather upon our conclusion that the Constitution of Tennessee itself entrusts the General Assembly with the prerogative to work in secret wh enever it decides to. While t

he plaintiffs are

at liberty to

assail the wisdom of

the founders’ decision to permit t

he General Asse

mbly to work in

secret, we are

not.
III. T HE P OWER OF THE C OURTS T O R EVIEW A CTS OF THE G ENERAL A SSEMBLY
The Constitution of Tenn essee protects

the people’s rights explicitly in Tenn. Const. art. I’s Declarationof R ights and by providing other limitations and restrictions on the exercise of government al power e lsewhere in its te xt and structure. Am

ong the most import

ant of these restrictions is the allocation of governmental p

ower to three separate

departments of g

overnment – the executive, the leg

islative, and the ju

dicial. 10 This separation of governmental power, required by Tenn. Const. art. II, §§ 1, 2, is intended to secure l ib erty by preventing the

accumulation of excessive authority in

a single department of government. Mistretta v. United States , 488 U.S. 361, 381, 109 S. Ct. 647, 660 (1989); T HE F EDERALIST Nos. 47, 51 (James Madison ) (Edward M. Ear

le ed., 1976); 1 C HARLES DE S ECONDAT , B ARON DE M ONTESQUIEU , T HE S PIRIT OF LAWS 163 (London, G. Bell & Sons, Ltd. 1914).

Whilethe departments of government have been characterized as “independent” and “coequal,” Summers v. T

hompson , 764 S.W.2d 182, 189 (Tenn. 1988); Moore v. Love , 171 Tenn. at 686-87, 107 S.W.2d at 983-84, they have also bee n viewed as “interdepende nt” because the

ir functions overlap. State v. King , 973 S.W.2d 586, 588 (T enn. 1998); Underwood

v. State , 529 S.W.2d 45, 47 (Tenn . 1975). By mand ating these overlappin g f unctions, t he framers of our Constitution created an extensive system of checks and balances which gives each department the
means to resist encroa

chment by oth

er departments.

Anderson County Quarterly Court v. Judges
o f the 28th Judicial Cir

cuit , 579 S.W.2d 875, 878 (Tenn. Ct. App. 1978). It also gives ea c h department the me

ans to assure that

the other depart

ments conform the

ir conduct to constitutional requirements.

The people of Tennessee, in the various Constitutions adopted since 1796, have decided how much governmentalpower to apportion to the Legislative Department and the other departments of government. Tennessee Conservation League v. C ody , 745 S.W.2d 854, 857 (Tenn. 1987); Illustration Design Group, Inc . v. McCanless , 224 Tenn. 284, 294, 454 S.W.2d 115, 119 (1970);-6-

Richardson v. Young , 122 Tenn. at 492, 125 S.W. at 668. Each of these co nstitutions has apportioneda “larger share” of governmental power to the L egislative Department. Moorev. Love , 171 Tenn. at 687, 107 S.W.2d at 984; The Judges Cases , 102 Tenn. 509, 528-29, 53 S.W. 134, 138 (1899). Thus, the Genera l Assembly’s

power to enact la

ws is limite d on ly b y the explicit and implicit restrictio

ns inthe Constitution of Tennessee and the United States Constitution. Perry v. Lawrence County Election Comm’n , 219 Tenn. 548, 551, 411 S.W.2d 538, 539 (1967); Williams v. Carr , 218 Tenn . 564, 578, 404 S.W.2d 5 22, 529 (1966); Beasley v. Cunningham , 171 Tenn. 334, 338-39, 103 S.W.2d 18, 19 (1937). Included in this broad grant of power is th e exclusive prerogative

to control the expen

diture of public mo

neys. Peay v. Nolan , 157 Tenn. 222, 228-29, 7 S.W.2d 815, 816 (1928); State ex rel. Weldon v. Thomason , 142 Tenn. 527, 534, 221 S.W. 491, 494 (1920).

The chief means of assuring that the Gene ral Assembly’s conduct comports with the requirements

of the Constitution of Tennessee is the power of the courts to invalida te le gislative actions that violate the Constitution. Over one hundred years

ago, Justice Peter Turney noted that the Constitution of Tennessee would be a “dead letter” without the judiciary’s power to invalidate legislative acts on constitutional grounds. Lynn v. Polk , 76 Tenn. at 127; se e also Louis ville & Nashville R.R. v. County Court of Davidson , 33 Tenn. at 671 (h olding that the Co

nstitution ’s limitations on the General Assembly “would be worse than usel ess” if the courts did not have the power to determine whether the General Assembly’s ac ts conflicted with the Constitution).
Thus, it is now beyond reasoned dispute that the courts have th

e sole authority

to determine whether legislative actions comport with constitutional principles. Richardson v. Tennessee Bd. of Dentistry , 913 S.W.2d at453; Tennessee Small Sch. Sys. v. McWherter

, 851 S.W.2d 139, 148 (Tenn. 1993 ). However, the doctrine of separation of powers requires the courts to respect the Gene r a l Assemb ly’s considerable legislative discretion, Helms v. Tennesse e Dep’t of Safety

, 98 7 S.W.2d 545 , 549 (Tenn. 1999); Riggs v. Burson , 941 S.W .2d at 54, and to presume that legislative actions are constitutional. Taylor v. State , 995 S.W.2d 78, 85 n.7 ( Tenn. 1999); Holder v. Tennessee Judicial Selection Comm’n , 937 S.W.2d 877, 883 (Te nn. 1996). T hese principles prevent the courts from usurping or infringing upon the General Assembly’s policy -making role.

IV. L IMITS OF C ONSTITUTIONAL R EVIEW
The courts are the f

inal arbiters of t

he meaning of th

e Co ns titution of Tennessee. Metropolitan Gov’t v. Tennessee State Bd. of Equalization , 817 S.W.2d 953, 955 (Tenn. 19 91 ). They are not free to construe theConstitution of Tennessee arbitrarily, Henley v. State , 98 Tenn. 665, 681, 41 S.W. 352, 355 (1897), and their construction of constitutional provisions must respect the intentions of the persons who adopted the constitutional provision at issue. Cleveland Surgery Ctr., L.P. v. Bradley County Mem’l Hosp. , 30 S.W.3d 278, 281-82 (Tenn. 2000); Shelby County v. H ale , 200 Tenn. 503, 510, 292 S.W.2d 745, 748 (1956). These intentions are reflected in the text of the Constitution itself. Hatcher v. Bell , 521 S.W.2d 799, 803 (Tenn. 1974). Thus, the courts must be guided chiefly by the text of the Constitution, Shelby County v. H ale , 200 Tenn. at 5 10-11, 292 S.W.2d at 748; Bank v. Cooper , 10 Tenn. (2 Yer.) 609, 621-22 (1831) (K enn edy, J., concurring),-7-

rather than their ow n subjecti ve notions of popular will not reflected in the Constitution itself. Stratton Claimants v. Morris Cl aimants , 89 Tenn. at 512, 15 S.W. at 90; Luehrman v. Taxing D ist. , 70 Tenn. 425, 438 (1879).

When discharging t

heir responsibility to construe the Constitution, the courts may not amend
or alter the Constitution under the guise of construction. Ashe v. Leech , 653 S.W.2d 398, 401 (Tenn. 1983); Moore v. Love , 171 Tenn. at 693, 107 S.W.2d at 986. They must give

the consti

tutional t ext its ordinary and inherent meaning. State ex rel. Cohe n v. Darnell, 885 S.W.2d 61, 63 (Tenn. 1994); Martinv. Beer Bd. , 908 S.W.2d 941, 947 (Tenn. Ct. App. 1995). They must also construe the text in light of the practices and usages that were well known when the provision at issue was adopted. Peay v. Nolan , 157 Tenn. at 230, 7 S.W.2d at 817 ; State ex rel. Witcher v. Bilbrey , 878 S.W.2d 567, 573 (Tenn. Ct. App. 1994), and in light of the construction and analysis of earlier cases. Dodds v. Duncan , 80 Tenn. 731, 733 ( 1884); Jenkins v. Ewin , 55 Tenn. (8 Heisk.) 456, 475 (1872).

A constitutional challenge to legislative action requires the courts to measure the General Assembly’s conduct against the applicable constitutional provisions. It does notempower the cour

ts to second-guess the General Assembly’s policy judgments, to superimpose their ownviews on the GeneralAssembly, or to pass upon the wisdom or necessity of the General Assembly’s policy decision s. Baldwin v. Knight , 569 S.W.2d 450, 452 (T enn. 1978); Louisville & Nashville R.R. v
. County Court of Davidson , 33 Tenn. at 668.

We have measured the 101st General As sembly’s co nduct against the provisions in the Constitution of Tennessee pertaining to the conduct of legi slative meetings . Based on the pla in requirements

of these sections , we have determ in ed th at the 101st Gener al Assembly a

nd its members did not violate

either Tenn. Const

. art. I, § 19, T

enn. Const. art. II, § 22, or the Tennessee Open Meetings Act by holding meetings from which the public and the press were excluded. That is all we have decided. We have not decided whether or not these meetings violated Sen ate Rul e 83(2) or House Rule 80(8). Nor have we decided whether the General As sembly’s pra ctice of holding secret meetings or of deciding to hold secret meetings without a public vote of any sort is
or is not consistent with

good public polic

y or proper

legisl ative procedure. Cognizant of our constitutionally

assigned role in

this tripartite

government, we

leave these dec

isions tothe legislators themselves and ult

imately to the

citizens who elect

them.

_________________________________ WILLIA M C. KOCH, JR., JUDGE