1 Mr. Evans stated in a brief filed in the juve nile cour t that his r

elationsh ip with Ms. Steelman began in 1991. The record contains no evidentiary substantiation for this asse rtion. 

# FILED

October 2, 199 6 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

MICHAEL SCO TT EVANS , ) ) Plaintiff /Appella nt, )

) Davidson Ju venile ) No. 9419- 13267 VS. ) ) Appeal N o. ) 01-A-01- 9511-JV-0 0508 KAREN MARIE BISSON STEELMAN, ) ) Defendant/Appellee. )



## DISSEN TING OPIN ION

Michael Scott Ev ans is seek ing nothing mor

e than to ack

nowledge his parental responsibilities to Jacob Ryan Steel ma n. The majority, however, has decide d t hat he is not entitled to prove in court that he is the boy’s biological father simply because the child’s mother was married to another man when he was born. This dec ision rests squarely o n an er roneous judi cial inter pretation of Tennessee’s legitimat

ion statute s. Rathe

r than per

petuating in

justic e, o ur responsibil ity as common law judges is to reme dy, not ignore, plain judicial mistakes.

I.

The facts of

this case fall into a

n all too com

mon patte rn. Ka

ren Mari e BissonSteelman married Jamie R. Steel m an in July 1993 when she w as only eigh teen years old. The mar riage fou ndered w ithin six mont hs, and in J a nuar y 1994 Ms. St

eelman le ft her husb and and move d into an apartment with Michael Scott Evans. 1 Ms. Steelman admittedly had sex regularly with Mr. Evans. After d iscoveringthat she was pregnant in March 1994, Ms. Steelman open l y acknowledged to Mr. Ev ans and his fam ily as wel l as to her

medical providers a

nd other acqu aintances that Mr. Evans was the chil d’s father.-2- Mr. Evans beg an making pr eparatio ns for the child with the expectation that he would eve ntually mar ry Ms. St eelman. Howeve

r, his re lationship w ith Ms. Steelman soured in June 1994 apparently because of a dispute over their unborn child. O n June 13, 19 94, Ms. S teelman w rote Mr. Evans a no te stating: I have alw ays said t

hat I wo uld never ke ep our childaway fr

om you, but d on’t you da re think for a second that I wo uld let you ta

ke my child from me. Don’t even think about t

rying beca

use you’ll

be sorry. Yes I didn’tgraduate , but that’ s being taken care of now. Ye s I got mar

ried at 18 a

nd am getti ng divorced

. I also got bea

t-up. Y es I am pr

egnant by a man wh o is not my husband, but you also got another man’s wi fe pregna

nt. I promise you ’ll be sorr

y if you try to t ake my childaway. As long as I’m al ive you will not ha ve custody of our

baby. As long as you don’t te st that, yo u will be a ble to see y our child a s much as you want. I can’t han dle all the str

ess that you’ re puttingon me, so for our child ’s sake, please stop. Ms. Steelma n moved out of Mr. Ev ans’s apa

rtment in e arly July 199 4 without telling him wher

e she was going. She

telephoned

Mr. Ev ans inAugust to inform himthat she w as returning to Mr. Steelma n, tha t the child w ould not bear his surname, an d that she would not li st him as the child’s fa

ther on the

birth certificate.

Thereafter, Ms. Steelman kept Mr. Evans in the dark about her pregnancy and the child. On November 24, 1994, Ms. Steelman gave birth to a son named Jacob Ryan Steelma

n. She li sted Mr. Steelma n as the fa

ther on the

child’s bir

th certificate. Mr. Ev ans found out about the c hild’s birt

h three da ys later w hen the hospital te lephoned his residenc e seeking M s. Stee lman.

When Ms. Steelman rebuffed his efforts to see the child, Mr. Evans hired
alawyer and on Dec ember 12, 1994, file d asworn pet ition to legitimat

e the child in the Davidson County Juvenile Court. Mr. Evans made an unconditional offer in the petition to support the child f inanciall y and reque sted the juv enile court to order the partie s to submit to bloo d tests to co nclusively e stablish tha t he was the child’s b iologic al father.-3- Ms. Steelman vigorously opposed Mr. Ev ans’s legi timation petition just as she threatened she would i n her June 1 3, 1994 note . While she did not deny her six-month

sexual liaison with Mr. Evans, she obtained an aff id avit from Mr. Steelman assertingthat he had also conti nued to have sex with Ms. Steelman whileshe was living with Mr. Evans and that he consider ed him self to be the child’s father. She also asserted in her answ er and in a

later mot ion to dismiss that Mr. Evans had no standing under Tenn. C ode Ann. § 36-2-202 ( Supp. 1995) to file
alegitimat ion peti tion. Her ar gument res ted on this court’s c onstruction of Tenn. Code Ann. § 36-2-202(a

) in Cunningham v . Golden , 652 S.W. 2d 910, 913 ( Tenn. Ct. App. 1983) , appeal dism issed, 466 U.S. 966, 104 S. Ct. 2336 (1984), t hat a childborn while its mother was married could not be considered a s a “child n ot born in l awful wedlock ” for the pu rpose of th e legitima tion sta tute.

On June 15, 1995, Mr. Evans filed a formal acknowledgment that he was Jacob Ryan Steelm an’s biol ogical fat her wi th the Putative Father Registry maintained by the Dep artment of Human

Service s in accor

dance wi th Tenn. Code Ann. § 36-2-20 9 (1991 & S upp. 199 5). A juvenile courtrefere e and the ju venile courtjudge late

r dismisse d his petitio n without or dering blood

tests on the ground thathe did not have standing under Tenn. Code Ann. § 36-2 -202 to legi timate Jacob Ryan Steelman. T he major ity has de cided to af

firm. W hile procl aiming that they m

ight interp ret Tenn. Code Ann. § 36-2- 202 differ ently wer e it not for the Cunningham v. Golden decision, they have d ecided not to consider the question anew bec ause they believe that the legislature has somehow written the Cunningham v. Golden decision into the curr ent legitim ation statu tes.

II.

The threshold i ssue is whether the c onstruction of Tenn. Code Ann . § 36-2- 202(a) in Cunningham v. Golden has become so firmly establishe d that the doctrine of stare decisis pla

ces it beyo n d our consi deration a t this time. While2 2 Roscoe Pound, Jurisprudence 166 (1959).

3 J .T. Fargason Co . v. Ball, 128 Tenn. 137, 141, 159 S.W. 221, 222 (1913); O. W

. Holmes, The Path of

the Law, 10 Harv. L. Rev. 457, 460-61 (1897).

4 DeanPound explained the relationship between the legal principles and the techniques usedto decide cases as follows: “The body of prec epts gets its whole life from the technique of developing and applying them; and that technique gets its color and its direction, and the precepts themselves get

their shape and content for the time being from the traditional ideas or current professional ideas as to the end of law.”1 Roscoe Pound, Jurisprudence 73 (1959). -4- adhering to precedent is usually a wise policy, the courts are not co n strained t o follow prec edents th at have pro duced un just resu lts or are po orly reaso ned.

A.

The common law

consists of

a vast bodyof judicia

l precedents repre senting the co urts’ re solution of c oncrete c ontroversi es using wor kable soluti ons to controlconduct or to define legal re lations. T

hese precede nts provide t he courts withauthorita

tiv e guidance for their

decisions 2 and also en able the ba r and the public to predict

how the co ur ts will deci de future cases. 3 They ser

ve their purposebest when

they are consistent

and unifo rm, State exrel. Pi tts v. Nas hville Base ballClub, 127 Tenn. 292, 303, 1 54 S.W. 1151, 1154 ( 1913); Steedman, Steere & Co. v. Dobbins & Dazey, 93 Tenn. 397, 406, 24 S.W. 1133, 1135 (1894), and it is this uniformity and consistency that undergirds the public’s confidence in the judicial system. Dupuis v. Hand, 814 S.W.2d 340, 345 (Tenn. 1991); Davis v. Davis, 657 S.W.2d 753, 758 (Tenn. 1983).

Judicial decisions a

re shaped not only by legal principles and doctrines but also by the decision-making techniques used to develop and apply them. 4 It is the courts’ respect for the doc trine of stare deci sis that acc ounts for the uni formity of the precede nts and the c onsistency i n the court s’ decisio n-making techniqu es. As
adecision- making tec hnique, the doctrine of stare decisis promotes consistency by requiringadherenc e to settle d principle s of law r ecognized

and follow ed in earlier cases. Staten v. State, 191 Tenn. 157, 159, 2 32 S.W. 2d 18, 19 (1950); Barton’s Lessee v . Shall, 7 Tenn. (Pe ck) 214, 2 32 (1823). Thus, st are deci sis ad monishes courts not t

o overturn decisions in

an arbitrary or ca

valier ma nne r . Fergusonv. Ram

Enters., In c., 900 S.W. 2d 19, 21 (T enn. 1995) ; State v. Kendricks

, 891 S.W.2d 59 7, 603 (Tenn . 1994).5 Shay v. Harpe r, 202 Tenn. 141, 151, 303 S.W.2d 335, 340 (1957) (distinguish prior

decisions to avoid in

justice) ; Griffitts

v. Humphrey, 199 Tenn. 528, 532, 288 S.W.2d 1, 3 (1955) (courtsmust make a clear distinction when an ear lier decision cannot be “sidestepped very gently”).

6 Rigid relianc e on the do ctrine o f stare d ecisis c an confou nd the truth and foster an attitude of contempt for the law. McIntyre v. Balentine, 833 S.W.2d at 56; Dupuis v. Hand, 814 S.W.2d at 345; Hanover v. Ruch, 809 S.W.2d at 898; Davis v. Davis, 657 S.W.2d at 758. -5- As important

as the doct

rine is, stare dec isis is not an inexorable

command, Payne v. Tennessee, 501 U.S. 808, 828, 111 S. Ct. 2 597, 2609-10 (1991), or an inflexible, mechanical formula. City of Memphis v. Overton, 216 Tenn. 29 3, 298, 392 S.W.2 d 98, 100 (1965). It does not com

mand “mindless obedience” fro m the courts. McIntyre v. Bale ntine, 833 S.W. 2d 52, 56 (Tenn. 1992); Hanover v . Ruch, 809 S.W. 2d 893, 898 (Tenn. 1991). Pr ior decisi ons are not

“likethe holy ar

k of the covenant, too sacre d to be touched.” Barton’s Lessee v. Sha ll, 7 Tenn. ( Peck) at232. Since the

law should

servethe needs o f the peopl e, Dupuis v. Hand, 814 S.W.2 d at 345-46; Powell v . Hartfor d Accident & In dem. Co., 217 Tenn. 503, 513, 398 S.W.2 d 727, 732 (1 966), the doctrine of stare decisis sho uld not

impede the growth and

developme nt of thelaw. Hamby v . McDa niel, 559 S.W.2 d 774, 780 (Tenn. 1977); Shousha v. M atthews D rivurself S

erv ., Inc., 210 Tenn. 384, 389, 358 S.W.2d 471, 473 (1962).

The court s must re-examine prior decisions when the circ umstances require

. If they c annot disting uish or side step a prior decision , 5 they must be prepare d to reject andoverrule when necessar y to protec t the inter

ests and ri ghts of the p ublic and to pr omote res pe ct for the la w. 6 The courts should exercise their power sparingly, Edingbo urgh v. Sea rs, Roebuck & Co., 206 Tenn. 660, 664, 3 37 S.W.2 d 13, 14 (1960); J.T. Fargason Co . v. B all, 128 Tenn. at 142, 159 S.W. at 222, an d shouldonly disrega

rd a prior decision when the dif

ficulties caused bydoing so are outweighed by the problems caused by adhering to the earl i er decisio n. Lee v. Harris, 188 Tenn. 373, 376-77 , 219 S.W .2d892, 893 (1949); Steedman, Steere & Co. v. Dobbins & Dazey, 93 Tenn. at 406, 24 S .W. at 1135.

The courts mus t have a compell ing reason to overtu rn a prior de cision. Blue Ridge Ins. Co. v. Haun, 197 Tenn. 527, 536, 276 S.W. 2d 711, 715 ( 1954); Barnes

v. Walker, 191 Tenn. 364, 369, 2 34 S.W. 2d 648, 650 (1950). The two most
common circumst ances wa

rranting t he relaxa tion of the d octrine of

stare de cisis-6-

are when the pri or preceden t has becom e obsolet e because of changes in the law, Fergusonv. Ram

Enters., Inc., 900 S.W.2 d at 21; Metropol itan Gov’t v. Poe, 215 Tenn. 53, 80-81, 383 S.W.2d 265, 277 (1964), or when the pri or dec ision has manifest ly misunderst

ood o r misappli ed the law. Summers v. Thom pson, 764 S.W.2 d 182, 199 (T enn. 1988) (Drow ota, J., concurri ng); Foster v. Roberts, 142 Tenn. 350, 360, 2 19 S.W. 729, 731 (19 20); Arnold v. Mayor of Kn oxv ille, 115 Tenn. 195, 202, 90 S.W. 469, 470 (19 05); The Judges ’ Cases, 102 Tenn. 509, 542, 53 S.W. 134, 142 (1899).

The doctrine o f stare decisis doe s not applywith full force toprinciples that have not been directly adopted by the Tenn essee Supre me Court. Swift v. Kirby, 737 S.W.2d 271, 27 7 (Te nn. 1987 ). Lower courts must follow the Tennessee Supreme Court’s de cisions , Payne v. Johnson, 2 Tenn. C as. (Sha nnon) 542, 5 43 (1877); Haun v. Guara nty Sec. Ins . Co., 61 Tenn. A pp. 137, 15 8, 453 S. W.2d 84, 94 (1969); Levitan v . Banniza, 34 Tenn. App. 176, 185, 236 S.W. 2d 90, 95 (1950), but they are not

required to adhere as strict ly to decisi ons of court s of coordi nate
or lesser jur isdiction. While publ i shed intermediat e appella te court de cisions have
some precedential value, Meadows v. State, 849 S.W. 2d 748, 752(Tenn. 1993), the precede ntial value

of unpublishe d opinions is s omewh at weaker. Ford v. State, 184 Tenn. 443, 454 , 20 1 S.W. 2d 539, 544 ( 1947). T hus, inter mediate appellate court dec isions wher

e no applic ation for p ermission to appeal has been filed have no st are decisis effect. Swift v. Kirby, 737 S.W. 2d at 27 7; Boar d of Comm’r s v. Obion County, 188 Tenn. 666, 669, 222 S .W.2d 7, 8 (1949); Gotten v. Gotte n, 748 S.W.2d 430, 431 (Tenn. Ct. App. 1987).

B.

The Tennessee Supreme Court has never co nstrued the meani ng of the phrase“child not b orn in law ful wedlo ck” in Tenn. Cod e Ann. § 36-2 -202(a). The first reported judicial construct ion of this phrase

appeare d in the Cunningham v. Golden decision. This decision has been followed by panels of the Easter n an d Western Sections o f this cour t in one publishe d andthree unpub lished deci sions. Cooper v. Thom pson, 710 S.W.2d 944, 946 (Tenn. Ct . App. 1 985 ); In re Young (Meadows v. Wells), App. No. 01-A-01-9409-GS-00417, slip op. at 2-3 (Te nn. Ct.7 The United Sta tes Supre me Court a

lso decli ned to review the decision even though Justices White

and Blackmun would have noted probable jurisdiction. Cunningham v. Golden, 466 U.S. 966, 104 S. Ct. 2336 (1984).

8 I can find no reliable indicationthat the Tennessee Supreme Court inte

nded to limi

t its commentsconcerning the significance of a simple denial of an applica tion for p ermission to appeal to multi-issue cases. In fact, jus t the co ntrary seems to be the case. See, for exa mple, Swift v. Kirby , 737 S.W.2d at 274, in which the sole issue was the correctness of this court's decision in an earlier case that the "equity of redemption" did not include the statutory right of redemption. -7- App. June 30, 1995) (Mem orandum Op inion), perm. app. denied (Tenn. Oct. 23, 1995); Frady v. Frady, C.A. No. 155, s lip op. a t 3-4 (Tenn. Ct. A pp. Mar. 18, 1991) (Memor andum Opin ion), perm. app. denied (Tenn. June 24, 199 1); In re Doss (Dossv. Daily), C.A. No. 69, slip o p. at 2 (Tenn. Ct . App. June 9, 1 989) (No Tenn. R. App. P. 11 application filed).

The Tennessee Supreme Court declined to review the Cunning ham v . Golden decision 7 and three of the four cases followingit. The se dispositio ns do not addprecede ntial wei ght to Cunningham v. Golden because the simple denial of an application fo r perm ission to appeal does not indicate that the Tennessee Supreme Court agr

ees with any of the

holding s in the de cision. Meadows v. State, 849 S.W.2 d at 752; Swift v. Kirby, 737 S.W. 2d at 277; Bryan v. Aetna Life I ns . Co., 174 Tenn. 602, 611, 13 0 S.W. 2d 85, 88 (19 39); Lingner v . Lingner, 165 Tenn. 525, 529, 56 S.W.2d 749, 750 (1933). 8

Th us Cunningham v. Golden has not become so ingrained in our law that itshould be vie wed as a rule of pr operty. In the absenc e of an a uthoritati v e interpretationof Tenn. Code Ann. § 36-2-202(a) by the Tennesse e Suprem e Court, the doctrine

of s tare dec isis does not prevent us from rec onsidering o ne of our own decisi ons and d eparting from it if th e circumsta nces requi re.

III.

The common law

treated children born out of w edlock har shly. Bec ause th ey were considered to be no one’s children, they could not require thei r biological f

ather to s upport them and could not inherit from their biological parent. Allen v. Harvey, 568 S.W. 2d 829, 831- 32 (Tenn. 1 978); Swanson v. Swanso n, 3 2 Tenn. (2 Swan) 445, 453 (1852). Because there w as no judicial9 The General Assembly’s reasons for cre ating this judicial remedy were clearly reflected

in the bill’s preamble whichstated that “the frequent applications to this General Assembly, have become troublesome, and havea tendency to expo se the mor als of society, and unnecessarily put the State to considerable expence for public printing, and time of the Legislature.”

10 Tenn. Const. art. XI, § 7 provided: The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the bene fits of in dividualsinconsistent with the general laws of the land; nor to pa ss any la w granting to any individual or individuals, rights, privileges, immunities, or exemp tions, other than such as may be, by the same law, extended to a n y member of the community, who may be a bl e to bring himself within the provisions of such la

w: provided alw ays, the L egislatur e shall ha ve power to grant such charters of incorporation as they may deem expedient for the public good. The Tennessee Supreme court later noted that this provision prevented the General Assembly from passing private laws legitimating particular individuals. Swanson v. Swanson , 32 Tenn. (2 Swan) at 454. -8- remedy, the only wa

y to legitim ate a chi ld born out of wedlockwas by “th e transcen dent

power of an act of parliament.” 1 William Blackstone, Commentaries *459.
During the early years of Tennessee’s statehood, the General Assembly wa s frequent ly called upo n to enact l egislation to legitima te partic ular in dividuals

. Theseacts were looked upon with disfavor; McCormi ck v. C antrell , 15 Tenn. (7 Yer.) 615, 623 (1835). The number of these re quests had in creased so much by 1805 that the G eneral A ssembly empoweredthe courts to legitimate children born out of wedloc k. Act o f Oct. 3, 1805, c h. 2, 1805 Tenn. Pub. Acts 4. 9 The cre ation of this judicial remedy did not succeed in divertin g legitima tion matte

rs from the legislature to the courts. Accordi ngly, the drafters of the Constit

ution of 1835 included a provi sion in the new c onstitution pr ohibiting the

Genera l Assembl y from suspending a

ny general

law for the benef

it of any pa

rticul ar indivi dual. Tenn. Const. of

1835, art . XI, § 7. 10 Later, the draf ters of the Constitution

of 1870 included a pr ovision spec ifically prohibiting t he General Assem

bly from "pass[ing] acts adopt

ing or legit

imatizing persons." Tenn Cons t. art. XI, § 6.
The original legitimation act provided that any of the i nperior [ sic] or c ounty courts of law in this s ta te, shall have

full powe

r and author

ity to alter

the name of any ille gitimate p erson on app lic ati on of any per so n wishing to make legitimate any of their offspring not bor n in wedloc k: Provided , said app licant11 CompareCode of Tennessee § 3640 (1858) with Shannon’s Code of Tennessee § 5406 (1896); C ode of

Tennessee § 9565 (1932); Tenn. Code Ann. § 36-302 (1955). The G eneral Assembly amended the provision in 1965 to requirethat the application for legitimation include the state anddate of the child’s birth. Act of Mar. 2, 1965, ch. 112, § 2, 1965 Tenn . Pub. Acts 418. -9-

intends to make said illegi timate pe rson heir, or joint heir to his or her estate. Act of Oct. 3, 1805, c h. 2, § 1, 1805 Tenn. Pub. Acts 4. This provision was altered slightly in the 1858 Code of Tennessee to provide:

The application to legitimate achild not born in lawful wedlock i s made by a

petition in writing, signed by the person wi shi ng to legitim ate such c hild, and setting forth the reasons therefor. Code of Tenne ssee § 3640 ( 1858). T his language

has been c arr ied forward essential ly unchanged i nto the cur rent code and was the very language construed in Cunningham v. Golden

. See Tenn. Code Ann. § 36-2-202(a). 11

The Genera

l Assembl y has amended the le gitimation statutes twice since the Cu nningham v. Golden decision, but neither change re lated to the

class of persons permitte d to file le giti mati on actions un der Tenn . Code Ann. § 36-2- 202(a) or to the cla ss of children for whom legitimation could be requested. In 1992, the General Assembly provided natural f athers w ith a second pr

ocedure f or acknowle dging the pat

ernity of a child born out of wedlock. It authorized them to execute a

notarize d “acknow ledgment of paternity ” at the hos pital whe re the childwas born. It also re quired the hospital to f orward t he bi rth certifi cate and acknowle dgment

of paternity to the juvenile court and directed the juvenile court to enter an ord er of legiti mation co nsisten t with thes e document s. Act of Apr. 30, 1992, ch. 1012, § 1, 1992 T enn. Pub. Acts 10 49, 1050 (codifie d at Tenn. Code Ann. § 36-2-202(

b)(1), - 202(b)(2) (Supp. 1992)). In addition , the 1992 l egislation provided that this ne w alter nate proc edure coul d not be used w ithout the mother’s
co n sent and that any order of

legitimat

ion based on a

n “acknow ledgment of paternity” could be rescinded if a later blood test proved conclusi vely that “ the named father

cannot be the natural father o f the child .” Act of Apr. 30, 1992, c h. 1012, § 1, 1992 T enn. Pub. Acts 1049, 1050 (codif ied at Tenn. Code A

nn. § 36-2- 202(b)(3), -202(b)(4) (Supp. 1992)).12 Act of Apr. 21, 1994, ch. 988, § 6, 1994 Tenn. Pub. Acts 1016, 1019.

13 A panel of the Eastern Section of this court has recently held that Tenn. Code Ann. § 36-2-202(c) is unconstitutional if interpreted to require maternal consent bef ore a natural father may file an application under Tenn. Code Ann. § 36-2-202(a) to legitimate a child. In re Hood (Vineya rd v. Hood), App. No. 03-A-01-9508-JV-00296, slip op. at 14 (Tenn. Ct. App. June 10, 1996) (No Tenn. R. App. P. 11 application filed). While this analysis is fundamentally sound, the panel could have avoided decidin g the constitutional question by pointing out that the legislative history of the maternal consent r equirem ent clea rly demonstr

ates tha t it applie s only to the “acknowledgment

of paternity” proceedings under Tenn. Code Ann. § 36-2-202(b), not to legitimation petitions filed directly in court under Tenn. Code Ann. § 36-2-202(a).

14 The majority makes much of the fact that the General Assembly has not amended Tenn. Code Ann. § 36-2-202(a) since the Cunningham v. Golden decision. Citing Hamby v. McDaniel , 559 S.W.2d 774, 776 (Te nn. 1977), it asserts that this legislative inaction is "persuasive evidence" that the legislature approves of Cunningham v. Golden's constru ct ion of "child not born in lawful

wedlock ." While th

e majorit y correctly cite s Hamby v. McDa niel , reaso n and common sense caution against reading too much into legislative inaction. The "inaction doctrine" relied on so heavily by the majority has few defende rs today. WilliamH. Eskridge, Jr., The New Tex tualism , 37 U.C.L.A. L. Rev. 621, 640 (1989), reprinted in 2A Norma

n J. Singer, Statutes and Statutory Construction 581 (5th e d. 1992). The fail ure to enact legislation cannot be associated with any particular legislative initiative or propos al, and, as Justice Scalia ha s pointed out, it is "impossib le to asse

rt with an y degree of assur ance tha t .

. . [legislative] failure to act represents (1) a pproval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indif ferenc e to (continued...) -10- The General Assembly amended the “acknowledgment of patern i ty” procedure in 1994. 12 The appa rent purpos e of this a

mendment w as to clar

ify the pr ocedure for filin g the notar ized ackno wledgmen

t of pater

nity and birt h certifi catewith the j uveni le c ourt and to r emove the provision pe

rmitting th e father to use a late

r blood test

to rescind

an order of paternity. This amendment also changed the designation of the maternal consent requiremen t from Tenn. Code Ann. § 36-2-202(b)(3) to Tenn. Code Ann. § 36-2-202(c). 13

The phrase “c hild not born i n lawful w edlock” in Tenn. C ode Ann. § 36-2- 202(a) has existed without change for almost one hundred an d fo rty years

. Neither of the tw o amendme nts to Tenn. Code Ann. § 36-2-202 enacted af ter the Cunningham v. Golden decision altered this phrase. Nothing in t he language

of the amendmen

ts themsel ves or in their legisla tiv e history confirms, or even implies, that the Gen eral As s embly inten ded to depar t from the

common, traditional meaning of

the phrase

in favor of

th e i nterpret ative gloss put on the phrasein Cunningham v. Golden or even that it was aware of the Cunningham v. Golden decision. Since the re is no direct, reliable

support for

the notion tha

t the General Assembly has somehow approved the Cunningham v. Golden decision, 1414 (...continued)

the status quo, or even (5) political coward ic e." Johnson v. Transportation Agency , 480 U.S. 616, 671-72, 107 S. Ct. 1442, 1472 (1987) (Scalia, J., dissenting). The General Assembly's decision to limit the availability of the alter native "acknowledgment

of paternity" procedure in Tenn. Code Ann. § 36-2-202(b) to children "born to an unmarried

woman" does not necessarily indicate that it intended the phrase "child born out of lawful wedlock" in Tenn. Code Ann. § 36-2-202(a) to mean the same thing. It isequally, if notmore, plausible that the General Assembly

wished to limit the availability of the alternative procedureto only unma

rried women in ord

er to protect t

he interests of a married woman's husband. -11- the 1992 and 1994 a

mendments to Tenn. Code Ann. § 36-2-202, like the doc trine of stare de cisis, sho uld not prevent us from r econsider ing th e C unningham v. Golden decision.

IV.

Tennessee’s legitimat

ion statutes must be understood and applied not just in light of their histo rical background but also in light of contemporary circumst ances. This court overlooked

the common me aning of the phrase “c hild not born inlawful w edlock” when it deci ded Cunningham v. Golden in 1983 and therebymistakenly restricted the class of persons perm i tted to fil e legitima tion actions. As a result, the court placed a cloud over the constit

utionalityof Tenn. Code Ann. § 36-2-202(a) andalso placed the statute in conflict with other statutes dealing with the rights of children w hose biologic al parent s are not m arried to each othe r. Because the consequences of continuing to follow the erroneo u s constructi on of Tenn. Code Ann. § 36 -2-202(a) far outw eigh the be nefits of correct ing our mistake, I will not hesitate t o reinter pret Te nn. Code

Ann. § 36- 2- 202(a).

A.
Statutory construct

ion is essential ly a judicial function

. Worley v . Weige ls, Inc., 919 S.W.2d 589, 592 (Tenn. 1996); Roseman v. Rose man, 890 S.W. 2d 27, 29 (Tenn. 1 994). It refers to the proc ess by whic h the court s ascerta in and t he n give the fulles t possible e ffect toa statute’s purpose. Cronin v. Howe, 906 S.W. 2d 910, 912 (Tenn . 1995); Wilson v. Johnson County, 879 S.W. 2d 807, 809 ( Tenn. 1994). When called upon to construe a statute , the cour ts must take

care not to-12-

unduly restric t the statut e’s applic ation or co n versely to expand its coverage beyondits inten ded scope

. Kultura, I nc. v. Southern Le asing Corp., 923 S.W. 2d 536, 539 (Tenn . 1996); In re Store y (Storey v. Bradf ord Furn itu re Co.), 910 S.W.2 d 857, 8 59 (Tenn. 1995); In re Conservatorship of Clayton (Salvatore v. Clayton), 914 S.W.2d 84, 90 (Tenn. Ct. App. 1995).

The search f

or a statut e’s purpose

necessar ily begins w ith the wor

ds of the statuteitself. Spencer v. Towson Moving & Storage, Inc., 922 S.W. 2d 508, 510 (Tenn. 1996); Winter v. Smith, 914 S.W.2d 527, 538 (Tenn. Ct. App. 1995). Unless the legisla

ture signa ls otherw ise, we

assign thes e words th eir natural and ordinary meaning. State exrel. Me tro. Gov’t v. Spicew ood Creek Wa tershed Di st., 848 S.W.2 d 60, 62 (T enn. 1993). W e consider not only the

immediat

e context i n which the words ap pear, McClain v. Henr y I. S i egel Co., 834 S.W. 2d 295, 296 (Tenn. 1992), but also the sta tute’s ove rall purposes an d establishe d public polic y. State v. Turne r, 913 S.W. 2d 158, 160(Tenn. 1995) (cons ideration of the statute’s
ove rall p urposes); Cronin v. Howe, 906 S.W. 2d at 912 (c onsiderati on of public policy).

When possible, we must avoid constructions that render a ny part of a

statute inoperativ e or void, Tidwell v . Colli ns, 522 S .W.2d 674, 676-77 (Tenn. 1975); Mangrum v. Owe ns, 917 S.W.2d 244, 246 (Tenn. Ct. App. 1995), or that pla ce one statutein confli ct with ano ther. State ex rel. Boone v. Sundquist, 884 S.W. 2d 438, 444 (Tenn. 1994); State ex re l. Metro

. Gov’t v. Spicew ood Creek Wa tershed Di st., 848 S.W.2 d at 6 2. Thus, the meaning of

an ambiguou s word or p hrase in on e statutemay be discovered by considering the lan gua ge and purpose of related statutes. State v. B louvett, 904 S.W.2d 11 1, 1 13 (Tenn. 1995); Roseman v. Roseman, 890 S.W.2d at

29; Lyons v. Rasar, 872 S.W. 2d 895, 897 (Tenn. 1994).

The courts shoul d construe unambiguous s tatutes ac cording to t heir plain meaning. Atchley v. Life C are Ctr., 9 06 S.W. 2d 428, 431 ( Tenn. 199 5); Neff v. Cherokee Ins. C o ., 704 S.W. 2d 1, 3 (T enn. 1986) . When, however , a statu te is ambiguous or unclear, we may resor t to thevarious ru les of stat utory constr

uction to ascerta in its purpose

and the pro per scope

of its applica

tion. No s ingle rule

of constructi on is prefe

rable to th e others, and thus we shouldbring all applic able15 The presumption that a child born to a married woman was the offspring of the mother’s husbandhas been traced to Goodright v. Moss, 2 Cowp. 591, 98 Eng. Rep. 1257 (1777), and is commonly

referred to as “Lord Mansfield’sRule.” It stems from Lord Mansfield’s statement that “the declarations of a father or mother , cannot be admitted to bastardize the issue born after marriage.” Goodright

v. Moss, 2 Cowp. at 592, 98 Eng. Rep. at 1257. Despite its widespread acceptance, Lord Mansfield’s Rule has not escaped serious acade mic criticism. See 7 John Henry Wigmore, Evidence in Trials at Common Law §§ 2063, 2064 (James H. Chadbourn rev. 1978).

16 Bureau of the Census, U.S. Dep’t of Commerce, Statistical Abstract of the United States : 1995, at 77 (115th ed. 1995) (statistics demonstrating that three of every ten live births in 1992 were to an unmarried woman). The nonmar ital birth rate in Tenne ssee has inc reased 252% during the past thirty years. In 1994, 33.4% of the childrenborn in Tennessee were born to unmarried mothers. Tennessee Comm’n on Children & Youth, Kids Count: The State of the Child in Tennessee, 1995, at 8 (1996).

17 Tenn. Code Ann. § 31-2-105 (Supp. 1996).

18 Tenn. Code Ann. § 34-11-102(a) (Supp. 1995); Tenn. Code Ann. § 36-2-102 (1991); Tenn. Code Ann. § 36-2-203 (1991). -13- rules to bear in order to a scertain a statute’s meaning an d applica tion. O.H. May Co. v. Ande rson, 156 Tenn. 216, 219-20 , 300 S.W . 12, 14 ( 1927 ); Davenpor t v. Chrysler Credit Cor

p., 818 S.W.2d 23 , 27 (Tenn. Ct. App . 1991).

B.

Tenn. Code Ann. § 36-2-202( a) must be const rued in light of i ts contemporary milieu. The law and societ

y’s attitude t oward children bor n to
women who are not married to the child’s biological father have changed significa ntly since the late eighteenth cen tur y when Lord Mansfield decided Goodright

v. Moss

. 15 We do a di sservice not only to th e par ties in this case but also to the law

itself if we perm it our under standing and

applicati on of

old statutes to be frozen in a patte

rn imposed b y an earli er generation’s pr ejudices a

nd limitation s.

One-third o f all children born in Tennessee today are born to unmarried mothers. 16 The lega

l position of these chil dren is ma rkedly dif ferent t han that of thei r counterpa

rts two hun dred year s ago. T hey have a statutory r

ight to inher

it from their

biological mother and father. 17 They have a statutor y right to re ceive support from both o f their biologica l parents. 18 In addition, they have a19 Pickett v. Brown, 462 U.S. 1, 18, 103 S. Ct. 2199, 2209 (1983) (statute of limitations

for seeking child support

from a bio logical f

ather) ; Gomez v. Perez, 409 U.S. 53 5, 538, 93 S. Ct. 872, 875 (1973) (

right to ch

ild suppor

t from a bi ological

parent) ; Weber v. Aetna Casualty & Sur. Co., 406 U.S. 164, 175-76, 92 S. Ct. 1400, 1406- 07 (1972) (right to receive worker’s compensation benefits).

20 The reasoning of these decisions indicate that the Tennessee Sup reme C ourt has concluded

that the Constitution of Tennessee provides broader protection for the rights of biological parents than does the United States Constitution. Thus, the Tennessee Supreme Court has not followed Justice Scal ia’s plurality opinion that unmarried fathers do not have a constituti onallyprotect

ed liber ty interest in their relationship with their biological children born to married

mothers. See Michael H. v. Gerald D., 491 U.S. 110, 113-32, 109 S. Ct. 2333, 2337- 46 (1989).

21 Several more recent intermediate appellate court decisions have characterized a related presumption as conclusive. See Rooker v. Rimer, 776 S.W.2d 124, 128 (Tenn. Ct. App. 1989); Tyler v. Tyler, 671 S.W.2d 492, 494 (Tenn. Ct. App. 1984). While the presumption of legitimacy has been viewed as one of the strongest

known to the law, Anderson v. Anderson, 52 Tenn. App. 241, 260, 372 S.W.2d 452, 461 (1962), the Tennessee Sup reme Cour

t has neve r held that it is conclusive. See Pressley v. Pressley, App. No. 0 3-A-01- 9311-CV- 00400, slip op. at 4 (Tenn. Ct. App. Feb. 10, 1995) (Susano, J., co nc urring) (No Tenn. R. App. P. 11 application filed). -14- constitutional right not to b e discrim inated aga

in st becaus e of the ma

rital sta tus of their bi ological pa

rents. 19

Alon g with these

improvements in the le gal status o f children whose biological parents are not married to each other, the Tennessee Supreme Court has redefined and expande d the pare ntal rights of biologic al parent s. Like many of its
co unterpa

rts in other sta

tes, the Court has h eld unequivoc ally that pa rents, notwithsta

ndi ng thei r marita

l status, p ossess funda

mental ri ghts with r

egard to their biologi cal childr en. Petrosky v. Keene, 898 S.W.2d 726, 728 (Tenn. 1995); Nale v. Robe rtson, 871 S.W.2d 674, 678 (Tenn. 1994). 20 Thus, in contemporary society, the legal rights and status of c hildren and

their par ents do not

necessar ily depend upon whethe

r the par ents wer e marri ed to each other when their chil d or children w ere born.

Until relative ly recent

times, Lord Man sfield’s R ule provide d a convenient substitute for eithe r unavaila ble or unre liable pro of

of parentage. In the pla

ce of inherently

suspect te stimony fr

omthe child’s motheror father, the rule confirmed that le gitimacy of

all childr

en should be a

societal n orm. T

his rebutta

ble presumptio n of legitimacy 21 for children born to a m arried w oman place d the burden on those desir

ing to prove otherwise to rebut the presumption with clear, strong, and convi ncing pro of. Gower v. State, 155 Tenn. 138, 144, 2 90 S.W. 978,22 K.S. v. R.S., No. 55S04- 9602-CV- 00162, 199 6 WL 42040 0, at *3 (I nd. July 29, 1996); Pursley v. Hisch, 85 N.E.2d 270, 271 (Ind. App. Ct. 1949); Smith v. R obbins, 283 N.W.2d725, 729 (Mich. Ct. App. 1979 ); In re Legi timation of Locklear , 334 S.E.2d 46, 50-51 (N.C. 1985); State v. Coliton , 17 N.W.2d 546, 551 (N.D. 1945); In re Esta te of Marriott, 515 P.2d 571, 573 (Okla. 1973); see also

Unif. Act on Paternity § 1, 9B U.L.A. 350 (1987); but see Weidenbacher v. Duclos, 661 A.2d 988, 992 n.11 (Conn. 1995) (declining to decide the meaning of “child born out of wedlock”).

23 Leonard v . Leonard

, 360 So. 2d 71 0, 712 (Al a. 1978) ; Estey v. Mawdsley, 217 A.2d 493, 494 (Conn. Cir. Ct. 196 6); Wilkins v. Georgia Dep’t of H

uman Reso urces, 337 S.E.2d 20, 22 (Ga. 198 5); Johnson v. Studley-Preston, 812 P.2d 1216, 1219 (I dah o 1991); K.S. v. R.S., supranote 21, at *3; Pursley v. Hisch, 85 N.E.2d at 271; Bartlett v. Commonwealth, 705 S.W.2d 470, 472 (Ky. 1 986); Spielmaker v. Lee, 517 N.W.2d 558, 559 (Mich. Ct. App. 1994); Girard v. Wagenma

ker, 434 N.W.2d 227, 228 (Mich. Ct. App. 1988), rev'd on othe r groun ds , 470 N. W.2d 372 (1991 ); State ex rel. Mads en v. Sold

ier, No. A-94-747, 1996 WL 169877, at *3 (Neb. Ct. App. April 9, 1996); Commissioner of Pub. Welfare v. Koehler, 30 N.E.2d 587, 589 (N.Y. 19 40); Batcheldor

v. Boyd, 423 S.E.2d

810, 813 (N.C. Ct. App. 19 92); State v. Coliton, 17 N.W.2d at 551. -15- 980 (1927); J

ackson v. Thornton, 133 Tenn. 36, 39, 179 S.W. 384, 384 (1915); Frazier v. McFerr

en, 55 Tenn. App. 431, 440, 402 S. W.2d 467, 472 (1964); State

ex rel. Ha rd esty v. Sparks, 28 Tenn. App. 329, 335, 190 S. W.2d 302, 304-05 (1945). This presump tion is n o longer required because of the widespread availabil ity of highly re liablescientifi c tests tha t can prove

or disprove parentage. See Tenn. C ode Ann. §§ 24 -7-112, - 117 (Supp. 1996) (appl ications of blood, genetic, an d DNA testing ).

C.

The phrase “c hild not

born in law ful wedlo ck” and similar phrases have a long history of judicial construction. Only the Cunningham v. Golden decision and the few Tennessee cases followingit have limited its meaning to children born to an unmarr

ied mother . Virtu ally every othe r court c onsidering t

he question has heldthat the term “wedlock” in these phrases ref ers to the ma rital sta

tus of the child’s biological parents with regard to each other. 22 Thus, phrases su ch as “chi ld born out of lawful wedlock” have been consistently construed to include n ot only children born to unma

rried w omen but als o children whose biologic al parent s are not married to each other. 23

In addition to bein g out of stepwith the pr evailing understandingof the meaning of the phra se, the c onstruction of “child bor

n out of lawful w edlock” in Cunningham

v. Golden places Tenn . Code Ann. § 36-2-202 on a collision c ourse24 Tenn. Code Ann. §§ 36-2-201, -209 (1991 & Supp. 1995).

25 Tenn. Code Ann. §§ 36-2-101, -115 (1991 & Supp. 1995).

26 Tenn. Code Ann. § 31-2-105.

27 In re Estate of Armstrong (Adams v. Manis), 85 9 S.W.2d 323, 327 (Tenn. Ct. App. 1993) (finding

no conne ction bet

ween the legitima tion and intestate succession statutes); Matthews v. White, App. No. 02-A-01-9210-JV-00295, slip op. at 4-5 (Tenn. Ct. App. July 1, 1993), perm. app. denied

(Tenn. Nov. 1, 1993) (the purpose of the paternity statutes differs from the purpose of the legitimation statutes).

28 See also Webb v. Dunlap, App. No. 03-A-01-9406-JV-00211, slip op. at 4-5 (Ten n. Ct. App. Dec. 6, 1994) (No Tenn . R. App. P. 1 1 applica tion filed ); Matthews v. White, supranote 26, slip op. at 4; Bass v. Norman, C.A. No. 164, slip op. at 4-5 (Tenn. Ct. App. Dec. 29, 1989) (No Tenn. R. App. P. 11 application filed). -16- withother statutes defining the rights and responsibilities of unmarried biological parents and their children. Our legi timation st atutes, 24 paternit y statutes, 25 and statutepertainin g to intesta te succes sion 26 are all

intended toremove th e commonlaw disabilities of children born to parents who are not married to each other

. Thesestatutes de fine the

obligation

of biological parents to support their children and also defin e the right s of these c hildren to s uppo rt and to inh erit fro m both biological par ent s. Notw ithstanding e arlier d ecisions drawing nic e distincti ons between the “purpos es” of the se statute s, 27 they sh ould be c onstrued in pari materia in order to assure that

their operation and e ffect is uniform a nd consistent.
The pate rnity statutes apply tochildren “born out of l awful w edlock. ” Tenn. Code Ann. § 36-2-101( 1). We have repe atedly cons trued this phrasein the context of pater nity procee dings to inclu de children who are born to an unmarried
woman and to children who are born to a marri ed woman whose husba nd is not the child’s b iologic al father. Tindle v. Gay, 891 S.W. 2d 617, 618 ( Tenn. Ct. App. 199 4); Frazi er v. M

cFerren , 55 Tenn. App. at 438, 402 S. W.2d at 4 71. 28 Likewise, we have

construed the statute

giving perso ns “born out o f wedloc k” the right to inherit from their biologica l parents i n a similar fas hion. In re Est ate of Armstrong (Adams v. Manis), 859 S.W.2d at 327.

Cons truing Tenn. C ode Ann. § 36-2-202( a) to apply to childre n whose

m otheris not married to their biological father is consistent with the Tennes se e Supreme Court’s r

ecognit io n of the rights of biological parents who have taken positi ve steps t o establi sh a relatio nship wit h their chi ldren. Nale v. Robertson , 871 S.W.2 d at 678. W

hile promot

ing consiste ncy among our statut es, it al so-17-

aligns Tennesse e with approximately two-thir ds of our sis ter state s that give putat ive fa thers the right to rebut the presumption that a child born to a married
woman is the issue

of the marriage. State ex rel. Roy Allen S. v. Stone, No. 23355, 1996 WL 328367, at *12 (W. V a. June 14, 1996); Weidenbac her v. D uclos, 661 A.2d at 999; Traci Dallas, Note, Rebuttingthe Marital Presumption: A Developed Relationsh ip Test, 88 Colum. L. Rev. 369, 373-74 (1988).

V.

The courts shoul d avoid const ruing statu tes in a way that renders them constitution ally suspect. State ex rel. Mynatt v. King , 137 Tenn. 17, 31, 191 S.W. 352, 355 (1917); Illinois Cent. R.R . v. Crider , 91 Tenn . 489, 506, 19 S.W. 618, 622 (1892). We should

also avoid deciding constitutional issues unless required to do so. Owensv. State , 908 S.W .2d 923, 92 6 (Tenn. 1995); Watts v. Memphis Transit Manageme nt Co. , 224 Tenn. 721, 727, 462 S.W.2d 495, 498 (1971); Stokes v. L eung , 651 S.W .2d 704, 71 1 (Tenn. Ct. App. 1982). My constructi on furthers both goals.

In addition tocreating d isharmon y between Tenn . Code Ann. § 36-2-202(a) and Tenn. Code Ann. §§ 31-2-105 & 36-2-101(1), the maj ority's interpretation also places the

statute on a colli sion course with the Due Process and Equal Protecti on Clauses of

the Constit

ution of Tennessee. My constru ction of Tenn. Code Ann. § 36-2-202(a) avoids t hese cons titutio nal infirm ities. Accord ingly, I do not join in the

discussion of

the constit

utionality of

Tenn. C ode Ann. § 36-2- 202(a) in Section IV of the majo rity's op inion. In m y mind, Tenn . Code Ann. § 36-2-202(a), as construed by the majority, deprives putative bi ological f athers of a fundamen tal const itution al right wit hout du e process o f law.

The courts should not permit legitimation proceed ings to be used a s a vindictive

vehicle to disrupt families. Putative fathe rs seeking the benef its and obligations thatflo w from pa rentage m

ust act pro mptly and in g ood faith to demonstrate their desire to establis h a parental relationship with their biological-18-

children. In this ca se, Mr. Evans’s prompt actions, coupled with Ms. Steelman’s concession s about the

child’s pa

rentage, indicate t

hat Mr. E vans is not seeking to disrupt an intact familyfor an impro per reason. Accordi ngly, I w ould find tha t he has standingto pursue this legitima tion procee ding.

_________________

___________ WILLIAM C. KOCH, JR., JUDGE