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

The budget document includes proposed operating and capital expenditures for the next fiscal year, Tenn. Code

Ann. § 9-4-5101(a), (b) (1999), and the revenue estimates for the same period. 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

WILLIAM C. KOCH, JR., J., concurring.

I concur with the court’s conclusion that the members of the 101st General Assembly did not

violate either Tenn. Const. art. I, § 19, Tenn. Const. art. II, § 22, or the Tennessee Open Meetings

Act, Tenn. Code Ann. §§ 8-44-101, -108 (1993 & Supp. 2000), when certain committees and other

groups of legislators held secret meetings during the 2000 legislative session 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 state government, including the

Legislative Department, must adhere to the requirements of the Constitution of Tennessee. Second,

even though the Judicial Department has the sole constitutional prerogative to adjudge the

constitutionality of the conduct of the Legislative Department, the Judicial Department’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 meetings violated

neither Tenn. Const. art. I, § 19, Tenn. Const. art. II, § 22, nor the Tennessee 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 part of an annual, wellorchestrated process played out each spring in the Legislative Plaza and the State Capitol that

culminates in the enactment of an appropriations bill containing the spending blueprint for state

government for the ensuing fiscal year.1

 This process begins every year on February 1 when the

Governor submits to the General Assembly a state budget2

 and the draft legislation needed to enact

a balanced budget for the ensuing fiscal year. It ends when the General Assembly enacts an
3

Senator Tim Burchett of Knoxville, referring to a meeting arranged for a select group of state senators to which

he was not 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 Secret, THE TENNESSEAN, 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 remotely familiar with this process understands full well that the General

Assembly’s public debates and the eventual adoption of an appropriations bill and accompanying

revenue bills 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 century, legislative leaders, constitutional officers,

administration representatives, and others have met behind closed doors to hammer out spending and

revenue proposals that will please enough legislators to assure their passage. Rather than being open

to all legislators, these meetings are 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 General Assembly have been aware of this process for years.

While not approving of it, the capitol hill press corps has at least acquiesced in it. Some media

representatives, while writing stories critical of the process, have attempted to best their colleagues

by seeking copies of the Governor’s budget or the results of the legislative leadership’s budget

discussions before their public release. This arrangement appeared to have been generally

satisfactory to all participants – both the legislators and the news media – at least until the 101st

General Assembly finally adjourned. 

During its two-year life, the 101st General Assembly proved to be one of the most

contentious legislative sessions in recent history. Controversy swirled from its opening in January

1999 after the Governor called for sweeping changes 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 regular 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 controversy over taxes and spending did not subside when the General Assembly

adjourned. Bolstered by a legislative committee’s conclusion that the state tax system was

inadequate to fund the services needed to maintain Tennessee’s economic vitality, the Governor

called the General Assembly into a second special session to consider his proposal to reduce the state

sales tax rate from 6% to 3.75%, to eliminate the 6% state sales tax on groceries, to revise the

business tax 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 between theSenate and the House of Representatives forestalled any floor
4We must construe the complaint in favor of the plaintiffs and accept all the allegations of fact 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. Burson, 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 Committee, the House Republican Caucus, the

Joint Budget Conference Committee, and the leaders of the Senate and House of Representatives “delibera tely,

repeated ly and flagrantly” conducted “secret, closed meetings” to deliberate toward decisions and to make decisions

regarding the revenue and budget bills that were enacted and took effect on July 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 estimated rate of growth of the state’s economy and the estimates 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, THE TENNESSEAN,

June 23, 2000, at 1A.

-3-

votes on changes in the state tax system. 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 convened on January 11, 2000.

The Governor again placed restructuring the state’s tax system on the legislative agenda by

presenting a proposed budget for the 2000-2001 fiscal year that included $375 million in new

revenue from a revised state tax system. The Governor’s tax plan mirrored the plan he had submitted

without success to the second special legislative session. More than the usual behind-the-scenes

maneuvering occurred over the ensuing months as the legislative leadership and the Governor

searched for common ground. Some of this maneuvering, according to the plaintiffs, occurred in

secret meetings of legislative committees and other groups 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 unproductive legislative sessions in 1999, the General Assembly

eventually abandoned its efforts to restructure the state tax system and enacted the appropriations

bill for the 2000-2001 fiscal year. The appropriations bill balanced the state budget by raising the

revenue estimates beyond the official estimates of the State Funding Board5 and by using nonrecurring revenues to fund recurring expenses. The Governor, calling the General Assembly’s

efforts a “Fudge-It Budget,”6 vetoed the appropriations bill. The General Assembly lost no time

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

This lawsuit was filed in the Circuit Court for Davidson County two days after the 101st

General Assembly adjourned. Complaining of the General Assembly’s “habitual and willful resort

to secrecy,” an individual citizen, later joined by members of the print media and several of their

professional associations, asserted that the General Assembly had violated Tenn. Const. art. I, § 19,

Tenn. Const. art. II, § 22, and the Tennessee Open Meetings Act by “deliberately, repeatedly and

flagrantly conducting secret, closed meetings of legislative committees.” They also asserted that this

conduct had “undermined public confidence in the fiscal and governmental soundness of the State

of Tennessee.” All of the plaintiffs requested declaratory relief. Some plaintiffs also demanded that

the trial court invalidate the appropriations bill and any other revenue bills enacted in violation of
7

Tenn. Code Ann. § 8-44-105 states, in part, that any action taken at a meeting in violation of the Tennessee

Open M eetings Act is vo id and of no effect.

8

Tenn. Code Ann. § 8-44-106(d) require s government entities found to have violated the Tennessee Open

Meeting s Act to subm it semi-annual written reports to the court rega rding their compliance w ith the Act.

9

The complaint names every member of the General Assembly as a defendant. One legislator, Representative

Robert W. Briley of Nashv ille, later sought to be “realigned” as a plaintiff. The trial court initially granted

Representative Briley’s motion but later relegated him to the status of am icus curiae after striking him as a plaintiff and

dismissing 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-annually to the courts on its compliance with the Tennessee Open Meetings

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

immunity, 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 satisfactorily based on the record as it stands.

II.

SUBORDINATION OF THE GENERAL ASSEMBLY TO THE CONSTITUTION

The Constitution of Tennessee is the tangible product of our citizens’ 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 promote and protect their peace, safety, and

happiness. Tenn. Const. art. I, § 1. Thus, rather than being the source of the people’s rights, the

Constitution 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); Stratton Claimants v. Morris 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 government transcends the Constitution of Tennessee. Each

department derives its power and authority from the Constitution and must, in turn, subordinate itself

to the Constitution’s requirements. Lynn v. Polk, 76 Tenn. 121, 130 (1881) (Turney, J.). Thus,

unlike the British Parliament, our General Assembly’s power is limited and restrained by the

Constitution. Moore v. Love, 171 Tenn. 682, 686-87, 107 S.W.2d 982, 983 (1937); Louisville &

Nashville R.R. v. County Court of Davidson, 33 Tenn. (1 Sneed) 637, 670-71 (1854); Smith v.

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

the executive power in the Governor; and Tenn. Const. art. VI, § 1 vests the judicial power in the Supreme Court and

the circuit, chance ry, and other courts estab lished by the G eneral Assembly. The Constitution of Tennessee 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, the Supreme Court of Tennessee recently restated a simplified description of each of these roles when

it noted that “[t]he legislative branch has the authority to make, alter, and repeal the law; the executive branch administers

and enforces the law; and the judicial branch has the authority to interpret 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 General Assembly and its members did not violate Tenn. Const. art. I,

§ 19 or Tenn. Const. art. II, § 22 is based, not upon our conclusion that the General Assembly is

somehow exempt from compliance with the Constitution, but rather upon our conclusion that the

Constitution of Tennessee itself entrusts the General Assembly with the prerogative to work in secret

whenever it decides to. While the plaintiffs are at liberty to assail the wisdom of the founders’

decision to permit the General Assembly to work in secret, we are not.

III.

THE POWER OF THE COURTS TO REVIEW ACTS OF THE GENERAL ASSEMBLY

The Constitution of Tennessee protects the people’s rights explicitly in Tenn. Const. art. I’s

Declaration of Rights and by providing other limitations and restrictions on the exercise of

governmental power elsewhere in its text and structure. Among the most important of these

restrictions is the allocation of governmental power to three separate departments of government –

the executive, the legislative, and the judicial.10 This separation of governmental power, required

by Tenn. Const. art. II, §§ 1, 2, is intended to secure liberty 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); THE FEDERALIST Nos. 47, 51 (James Madison) (Edward M. Earle

ed., 1976); 1 CHARLES DE SECONDAT,BARON DE MONTESQUIEU,THE SPIRIT OF LAWS 163 (London,

G. Bell & Sons, Ltd. 1914).

While the departments of government have been characterized as “independent” and “coequal,” Summers v. Thompson, 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 been viewed as “interdependent” because their

functions overlap. State v. King, 973 S.W.2d 586, 588 (Tenn. 1998); Underwood v. State, 529

S.W.2d 45, 47 (Tenn. 1975). By mandating these overlapping functions, the framers of our

Constitution created an extensive system of checks and balances which gives each department the

means to resist encroachment by other departments. Anderson County Quarterly Court v. Judges

of the 28th Judicial Circuit, 579 S.W.2d 875, 878 (Tenn. Ct. App. 1978). It also gives each

department the means to assure that the other departments conform their conduct to constitutional

requirements.

The people of Tennessee, in the various Constitutions adopted since 1796, have decided how

much governmental power to apportion to the Legislative Department and the other departments of

government. Tennessee Conservation League v. Cody, 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 constitutions has

apportioned a “larger share” of governmental power to the Legislative Department. Moore v. 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 General Assembly’s power to enact laws is limited only by the explicit and

implicit restrictions in the 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 522, 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 the exclusive

prerogative to control the expenditure of public moneys. 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 General Assembly’s conduct comports with the

requirements of the Constitution of Tennessee is the power of the courts to invalidate legislative

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; see also Louisville &

Nashville R.R. v. County Court of Davidson, 33 Tenn. at 671 (holding that the Constitution’s

limitations on the General Assembly “would be worse than useless” if the courts did not have the

power to determine whether the General Assembly’s acts conflicted with the Constitution).

Thus, it is now beyond reasoned dispute that the courts have the sole authority to determine

whether legislative actions comport with constitutional principles. Richardson v. Tennessee Bd. of

Dentistry, 913 S.W.2d at 453; 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 General

Assembly’s considerable legislative discretion, Helms v. Tennessee Dep’t of Safety, 987 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 (Tenn. 1996). These principles prevent the courts from

usurping or infringing upon the General Assembly’s policy-making role.

IV.

LIMITS OF CONSTITUTIONAL REVIEW

The courts are the final arbiters of the meaning of the Constitution of Tennessee.

Metropolitan Gov’t v. Tennessee State Bd. of Equalization, 817 S.W.2d 953, 955 (Tenn. 1991).

They are not free to construe the Constitution 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. Hale,

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. Hale, 200 Tenn. at 510-11, 292

S.W.2d at 748; Bank v. Cooper, 10 Tenn. (2 Yer.) 609, 621-22 (1831) (Kennedy, J., concurring),
-7-

rather than their own subjective notions of popular will not reflected in the Constitution itself.

Stratton Claimants v. Morris Claimants, 89 Tenn. at 512, 15 S.W. at 90; Luehrman v. Taxing Dist.,

70 Tenn. 425, 438 (1879).

When discharging their 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 constitutional text

its ordinary and inherent meaning. State ex rel. Cohen v. Darnell, 885 S.W.2d 61, 63 (Tenn. 1994);

Martin v. 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 not empower the courts

to second-guess the General Assembly’s policy judgments, to superimpose their own views on the

General Assembly, or to pass upon the wisdom or necessity of the General Assembly’s policy

decisions. Baldwin v. Knight, 569 S.W.2d 450, 452 (Tenn. 1978); Louisville & Nashville R.R. v.

County Court of Davidson, 33 Tenn. at 668.

We have measured the 101st General Assembly’s conduct against the provisions in the

Constitution of Tennessee pertaining to the conduct of legislative meetings. Based on the plain

requirements of these sections, we have determined that the 101st General Assembly and its

members did not violate either Tenn. Const. art. I, § 19, Tenn. 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 Senate Rule

83(2) or House Rule 80(8). Nor have we decided whether the General Assembly’s practice 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 policy or proper legislative procedure. Cognizant of our

constitutionally assigned role in this tripartite government, we leave these decisions to the legislators

themselves and ultimately to the citizens who elect them.

_________________________________

WILLIAM C. KOCH, JR., JUDGE