# FILED
February

26, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk MONROE E. DAVI S, ) DAVID SHEL

TON and ) TRACEY CHADWICK, ) ) Petitioners/Appella

nts, ) Appeal No.

) 01-A-01-9610-CH-00498 v. ) ) Davidson Chancery DON SUNDQUIST, Governor of the ) No. 95- 109 0-II State of Tennessee, and ) CHARLES W. BURSON, ) Attorney Gene

ral and Reporter for the ) State of Tennessee, ) ) Responde nts/Appellees. )
COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CHANCERY COURT FOR DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE
THE HONORABLE EL

LEN HOBB S LYLE, CHA NCELLOR

MONROE E. DAVI S, Pro Se TDOC # 130909 W.T.H.S .F. P. O. Box 1050 Henning, Tennessee 38041-1050
CHARLES W. BURSON Attorney Gene

ral & Reporter JE FFR EY L. HILL Assistant Attorney Gene

ral Civil Rights and Claims Division 2nd Floor, Cordell Hull Building 426 5th Ave

nue Nort h Nashville, Tennessee 37243-0488 ATTORNEYS FOR RESPONDENTS/APPELLEE S

AFFIRMED AND

REMANDED

SAMUEL L . LEWIS, JUDGE-2- 

## OPINION
This is an appea

l by pet itioners/a ppellants, Monroe D avis, Da vid Shelton, and Tracey Chadwic k. Pet itioners are inmates in the custody of the T ennessee Departm ent of Corre ctions and a

re appea ling the j udgmen

t of the Chancery Court

for Davidson County . The

chancery court dism

issed their petition seeking a declaratory judgm ent that Tennessee Code Annotated section 40-2 0-112 is unconstitutional because it encompasses more

than one subj ect in cont

ravention o f articl e 2, sect ion 17 of the Constitution of the State of Tennessee.
Petitioners filed their declaratoryjudgm ent action on 6 April 1995. They named Don Sundquist, in his offi cial capa city as Governor of Tennessee, and Charles Burson, in his official ca pac ity as Attorney General and Reporter of Tennessee, as respondent s. Theref

ore, Re spondents fi led a m otio n to dismis s claim

ing lack of subject matt er juri sdiction. On 15 Sept embe r 1996, the

chancer y cour t f iled a
mem orandum and order granting the motion and dismissing the petition. The court stated as f

ollows: Finally , Tenne ssee code Annotated section 4- 5-223 and 224 providethe exclus ive rem edy fo r the petitioner s, convict ed felons lawfully in th e cu st od y of t he D epa rtme nt of C orrectio n, to chal lenge the applicability of statutes and rules as applied t o them , whether on a c onstitu tional b asis or ot herwise. Th e petitioners in this ca se, howe ver, hav e not com plied with

the jurisdictional prerequisite re quirin g an inmate to first file a petition withthe Department for a declara tory or der rega rding the statutein question. Thus, the Court may not ent ertai n an action for declaratory judgm

ent under section 4-5-224 either. After the chancery cour t entered its order, Petitione

rs filed a copy of a docum ent entitled “Petition for Declara tory Order.” P etitioners contended that the chancery courtshouldame nd its judgm ent based on

this docum

ent becau se they had complied withTennessee Code Annotat e d section 4- 5-223. T he court de nied the m

otion. The rea fte r, P eti ti on ers fil ed a time ly n ot ice of a pp eal . We a ffi rm.
The Uniform

Admi nistrative

Proc edure s Act provides the jurisdictional prerequisites for seeking review of an agency’ s actions through a declarat ory judgm ent proceedi ng. “ A declaratory judgm ent shall no tbe rendered concerni ng the validity or applicab ili ty of a statute, rule or order unless the com plainant has-3-

petitioned the agency for a declaratory order and the agency has refused t o i ssue a declaratory order.” Tenn. Code Ann . § 4-5-224 (b)(1991 ). The prope r agency with which to file a p etition f or a declara tory order is the one which has prim ary jurisdic tion over the statute, rule, or order at issue. See id. § 4-5-223(a ). In ad dition, an agency

is deem ed to have r

efused to i ssue a dec laratory order if it fails toset the petition for a contested ca se hearin g within six ty day s of rece ipt of the petit ion. Id. § 4-5-223(c). Before see king judicial review of the agency’ s action, the petitioner must attempt to resolve his or her grievances thro ug h agency proced ures. A declaratory judgm

ent action is premature if

the petitio ner proce eds directly to judicial review w ithout seeki ng an adm inistrativ e determ

ination.

In the prese nt case, Petitione rs did not al lege prior

to the dismissal that they sought a declaratoryorder fr

om the agency which exercised primary jurisdiction over Tennesse e Code Annotated section 40- 20-112. I n addition, the “ Petition f or DeclaratoryOrder” fails to s a tisfy the requirem ents of Tennessee Code Annotated section 4-5-224(b) for the following reasons. First, M onroe Da vis is the onl y compl ainant

name d in the Pet

ition f or Declaratory

Order. Thus, if

the Petit ion for DeclaratoryOrder were sufficient under Tennessee Code A nnotated section

4-5-223, itwould only

aid Petit ioner Da vis ’ attem

pt at obtainin g a declaratory judgm ent because the complainant must petition the agency an d petitioner s Shelton a nd Chadwick

did not ev en attempt to fi le a petiti on for decl aratory order. See id. § 4-5- 224(b). Second, it

is the opinion of

this court t

hat Petiti oner Dav is did not pet ition the proper agency when

he requeste d a declaratory order fr om Go vernor Su ndquist. Fin all y, Petitione

rs did not give

the Gover

nor the re quired sixt

y day s wit hin which to setthe petition for a contested case hea ring. T he Petitio n for De clarator y Or der is dated 15 Februa

ry 1995 , and Petitioners filed their petition in the chancery court on 6 April 1995 . Thus, there is n o agency which has refused t

o issue a declaratory order as is required by Tennessee Code Annotated section 4-5-224(b).
Therefore, it

results tha

t the judgm

ent of the cha

ncery court is a ffirm ed, and the cause is remanded for any f urther necessary proceedings. Costs on appeal are taxed to the petit

ioners/app ellant s, Monr oe Davis, David Shelton and Tracey Chadwick

.-4- ____________________________________ SAMUEL L . LEWIS, JUDGE
CONCUR:

_____________________________________ BEN H. C ANTREL

L, J.

_____________________________________ WI LL IA M C. K OCH , JR. , J.