# FILED

May 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

BILL McMURRY, ) HANCOCK CHANCERY ) Plaintiff/Appell

ant ) NO. 03A01-9804-CH00148 ) v. ) HON. WILLIAM DALE YOUNG ) Chancellor, By

Interchange HANCOCK COUNTY ELECTION ) COMMISSION, JOHN KNOX ) WALKUP, ATTORNEY GENERAL ) OF TENNES SEE, and the ) ELECTION

COMMISSION

of the ) STATE OF TENNESSEE, ) AFFIRMED ) Defendants/Appel

lants )

William A.

Zierer, Morr

istown, for Appel

lant. Janie C. Porter,

Assistant Attorne

y General, Nashville, For A ppellees.

O P I N I O N

INMAN, Senio

r Judge The appellant, a

nonlawyer, w

as elected to the of

fice of General

Sessions Judge of Hancock Cou

nty in the August 19 90 general election

. He timely filed a qualifying petition for the May 5, 1998 primary election, seeking the Republican nomination in the August 1998 general election. A resident license

d attorney, Fl

oyd Rhea, file

d a timely q

ualifying petition as an independent candidate for the office. The Hancock County Election Commission ruled that Judge McMurry was not statutorily

qualified to hold the of

fice and hence not e

ntitled to seek it under T.C.A.§ 16-15-5005, which p rovides:(a) Notwithstanding any other prov i sion o f law to t he cont rary, effective September 1, 1990, all persons occupying the office o f general sessions judge shall be licensed to practice law in this state. Anyperson serving in the office of genera

l sessions judge on

August 1, 1990, w ho is no t a lice nsed at torney may s eek reelec tion to such positionandserveas a general sessio ns judge as long as suc

h person is continuously

reelected. If

a vacancy occ

urs inthe office of a nonattorney general sessions judge elec ted pursuant to

this section, such vacancy shall be filled by a per son licensed to pract

ice law and the qualifications

set out in the first se

nt ence of t his section shall thereafter apply

to such position. (B) Notwithstanding t he provisions of t his section, i f a v acancy occurs in the office of general sessions judge and no licensed attorney appears at the meeting when the vacancy is being filled by

the county legislative

body and offers to b ecome a candi date for the offic

e, the vacancy may

be filled by a person not licensed to practice law. If no licensed attorney qualif

ies for an election being hel

d to fill the office of general sessions judge , or the only att orney candidate

legally withdraws, the county election commission shal l exte nd the qualification

deadline for a period of ten (10) days, during which period persons not licensed t

o practice law m

ay qualify t

o seek the office of g eneral sessions ju

dge. The provisions

of the second sent ence o f this subsection shall not apply in counties having a population

of not less than fifty-one thou sand twenty-f ive (51,025) nor more th an fifty-one th ousand one hundred twe

nty-five (51, 125) accordingto th e 1980 federal census or any subsequent federal census. [Acts 1988, ch. 698; 1 990, ch. 637; 1990 , ch. 862; 1990, ch. 101 7.] His qualifying pe

tition being rejec

ted, Judge McMurry

thereupon filed a complaint for i

njunctive relief

, which was denie

d. He appeals, i

nsisting that (1) the Election Com

mission is estoppe

d from rely

ing on T.C.A. § 16-15-5005, (2) the voters of Hancock County would be deprived of equal protection of the law because there is no r

ational basis to deny

them a choice b

etween a lawy

er Judge with no judicial ex

perience and a nonla

wyer Judge wi

th eight years of experience, and (3) the refusal to allow him to seek re-election to the office deprives him of equal protection, since the statute permits other nonlawyer Judges to seek reele

ction. Where there is no c

onflict in the evidenc

e as to any materia

l fact, the question on appeal is one of law, and the sc

ope of review is de novo with nopresumption of cor rectness accompanyi ng a chancellor's con clusions of law.

Union Carbide Corp. v

. Huddleston, 854 S.W.2d 87 (Te nn. 1993)

. I The issue of estoppe l was not raised at the trial and cannot be raised for the first time on appeal. Lawrence v. Stanford , 655 S.W.2d 927 (Tenn. 198 3). Nonetheless, we

are constrained to observe that the doct rine is inapplicable

to this case, because

Judge McMurry w

as not induced to fore

go a property ri

ght and there is no eviden

ce of an implie

d contract which w

ould justify the application of th e doctrine. See, Elizabethton Housing & Development Agency, Inc. v. Price, 844 S.W.2d 614 (T enn. App. 1992). Moreover, estoppe l generally does not apply to acts of public agencies. State ex rel Moulton v . Williams, 343 S.W.2d 857 (T

enn. 1961). His ar

gument that since

he was also ineligib

le to seek the office in 1 990 - being neither a l awyer nor an i

ncumbent - the E

lection Commission “

caused him to con

tinue his run for ele

ction anyway ,” thereby forever waiving,

as to him, the s

tatutory requir

ements, arr

ogates a certain proprietorship in the

office the im

permissibility

of which needs no ana

lysis. II Judge McMurry next argues that T.C.A. § 16-15-5005 is unconstitutional class legislation which deprives him of equal protection of the laws. Other than residency requirements, A RT . VI, sect. 4 of the Constitution of Tennessee mandates only

a minimum

age for Judges of inf

erior courts. The requirement that a Judge shall be a licensed attorney was legislated by the Genera

l Assembly , whose authority to do so is settled bey

ond peradventure. In LaFever v. Ware, 365 S.W.2d 44 (T enn. 1963), and Perry v. Lawrence Cou

nty Election Co

mmission,

411 S.W.2d 538 (Tenn. 1967), the Supreme Court

held that the Legisl

ature may lawfully prescribe qualificati onsfor Judges that are reasonable, and the requirement that a Judge shall be a

licensed attorney

was upheld. III The appellant fina

lly argues that T .C.A. § 16-15-5 005 effectively strips the voters of Hanco

ck County of their

“inalienable r

ight of suffrage” be

cause the State has imposed on them an “election with only one eligible candidate.” This action is assai

led as insidious because “Hancock C ounty has 7700 citiz

ens and only one qualif

ying resident la

wyer.” W

e see no denial of the

right to suffrage; the voters are free to vote or not vote, as they choose. The choice may be limited in 1998 o

wing to the circum

stances, but this doe s not invalidate the mandated requirement that the General Sessions Judge shall be a licensed attorney, subj ect to the exceptions noted. The judgment

is affirmed a

t the costs of the appe

llant.

_________________________________ William H.

Inman, Senio

r Judge CONCUR:

_______________________________ Houston M. Goddard, Presiding Judge

_______________________________ Charles J. Susano,

Jr., Judge