FILED

February 26, 1997

Cecil W. Crowson

Appellate Court Clerk

MONROE E. DAVIS, )

DAVID SHELTON and )

TRACEY CHADWICK, )

)

Petitioners/Appellants, ) Appeal No.

) 01-A-01-9610-CH-00498

v. )

) Davidson Chancery

DON SUNDQUIST, Governor of the ) No. 95-1090-II

State of Tennessee, and )

CHARLES W. BURSON, )

Attorney General and Reporter for the )

State of Tennessee, )

)

Respondents/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

MONROE E. DAVIS, Pro Se

TDOC # 130909

W.T.H.S.F.

P. O. Box 1050

Henning, Tennessee 38041-1050

CHARLES W. BURSON

Attorney General & Reporter

JEFFREY L. HILL

Assistant Attorney General

Civil Rights and Claims Division

2nd Floor, Cordell Hull Building

426 5th Avenue North

Nashville, Tennessee 37243-0488

ATTORNEYS FOR RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
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OPINION

This is an appeal by petitioners/appellants, Monroe Davis, David Shelton,

and Tracey Chadwick. Petitioners are inmates in the custody of the Tennessee

Department of Corrections and are appealing the judgment of the Chancery Court for

Davidson County. The chancery court dismissed their petition seeking a declaratory

judgment that Tennessee Code Annotated section 40-20-112 is unconstitutional

because it encompasses more than one subject in contravention of article 2, section

17 of the Constitution of the State of Tennessee.

Petitioners filed their declaratory judgment action on 6 April 1995. They

named Don Sundquist, in his official capacity as Governor of Tennessee, and Charles

Burson, in his official capacity as Attorney General and Reporter of Tennessee, as

respondents. Therefore, Respondents filed a motion to dismiss claiming lack of

subject matter jurisdiction. On 15 September 1996, the chancery court filed a

memorandum and order granting the motion and dismissing the petition. The court

stated as follows:

 Finally, Tennessee code Annotated section 4-5-223 and 224

provide the exclusive remedy for the petitioners, convicted felons

lawfully in the custody of the Department of Correction, to

challenge the applicability of statutes and rules as applied to

them, whether on a constitutional basis or otherwise. The

petitioners in this case, however, have not complied with the

jurisdictional prerequisite requiring an inmate to first file a

petition with the Department for a declaratory order regarding the

statute in question. Thus, the Court may not entertain an action

for declaratory judgment under section 4-5-224 either.

After the chancery court entered its order, Petitioners filed a copy of a document

entitled “Petition for Declaratory Order.” Petitioners contended that the chancery

court should amend its judgment based on this document because they had complied

with Tennessee Code Annotated section 4-5-223. The court denied the motion.

Thereafter, Petitioners filed a timely notice of appeal. We affirm.

The Uniform Administrative Procedures Act provides the jurisdictional

prerequisites for seeking review of an agency’s actions through a declaratory

judgment proceeding. “A declaratory judgment shall not be rendered concerning the

validity or applicability of a statute, rule or order unless the complainant has
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petitioned the agency for a declaratory order and the agency has refused to issue a

declaratory order.” Tenn. Code Ann. § 4-5-224(b)(1991). The proper agency with

which to file a petition for a declaratory order is the one which has primary

jurisdiction over the statute, rule, or order at issue. See id. § 4-5-223(a). In addition,

an agency is deemed to have refused to issue a declaratory order if it fails to set the

petition for a contested case hearing within sixty days of receipt of the petition. Id.

§ 4-5-223(c). Before seeking judicial review of the agency’s action, the petitioner

must attempt to resolve his or her grievances through agency procedures. A

declaratory judgment action is premature if the petitioner proceeds directly to judicial

review without seeking an administrative determination.

In the present case, Petitioners did not allege prior to the dismissal that they

sought a declaratory order from the agency which exercised primary jurisdiction over

Tennessee Code Annotated section 40-20-112. In addition, the “Petition for

Declaratory Order” fails to satisfy the requirements of Tennessee Code Annotated

section 4-5-224(b) for the following reasons. First, Monroe Davis is the only

complainant named in the Petition for Declaratory Order. Thus, if the Petition for

Declaratory Order were sufficient under Tennessee Code Annotated section 4-5-223,

it would only aid Petitioner Davis’ attempt at obtaining a declaratory judgment

because the complainant must petition the agency and petitioners Shelton and

Chadwick did not even attempt to file a petition for declaratory order. See id. § 4-5-

224(b). Second, it is the opinion of this court that Petitioner Davis did not petition

the proper agency when he requested a declaratory order from Governor Sundquist.

Finally, Petitioners did not give the Governor the required sixty days within which

to set the petition for a contested case hearing. The Petition for Declaratory Order is

dated 15 February 1995, and Petitioners filed their petition in the chancery court on

6 April 1995. Thus, there is no agency which has refused to issue a declaratory order

as is required by Tennessee Code Annotated section 4-5-224(b).

Therefore, it results that the judgment of the chancery court is affirmed, and

the cause is remanded for any further necessary proceedings. Costs on appeal are

taxed to the petitioners/appellants, Monroe Davis, David Shelton and Tracey

Chadwick.
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____________________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_____________________________________

BEN H. CANTRELL, J.

_____________________________________

WILLIAM C. KOCH, JR., J.