Penny Campbell v. Don Sundquist, Governor of the State of Tennessee - Partially Dissenting

• Court: Court of Appeals of Tennessee
• Decided: January 1, 1996
• Docket: 01A01-9507-CV-00321
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

PENNY CAMPBELL, ET AL., ) ) Plaintiffs/Appellees, ) ) Appeal No. ) 01-A-01-9507-CV-00321 VS. ) ) Davidson Circuit ) No. 93C-1547 DON SUNDQUIST, Governor of ) the State of Tennessee, et al., ) ) Defendants/Appellants. ) FILED Jan. 1, 1996

PARTIAL DISSENT Cecil Crowson, Jr. Appellate Court Clerk

I respectfully dissent from part I of the majority opinion holding that the

appellants have standing to maintain this action under the Declaratory Judgment Act.

In my opinion this case does not involve present rights that have accrued under

presently existing facts. See Dobbs v. Guenther, 846 S.W.2d 270 (Tenn. App. 1992).

None of the plaintiffs in this action have been prosecuted under the

HPA; none of them allege that they have even been threatened with prosecution.

They do allege that they fear they will be prosecuted for engaging in conduct

prohibited by the Act. I do not think such allegations give the plaintiffs a special

interest in the statute as opposed to the public in general. See Parks v. Alexander,

608 S.W.2d 881 (Tenn. App. 1980). All the complaint expresses is a fear that the

plaintffs will be prosecuted if they choose to violate the Act. Every member of the

public is affected in exactly the same way. The plaintiffs' reliance on Erwin Billiard Parlor v. Buckner, 156 Tenn.

278, 300 S.W. 565 (1927) is misplaced. In that case the plaintiffs were the owners

and operators of a legal business that would be closed by the operation of the statute

in question. Their interests were different from the interests of the public at large.

They had a right under presently existing facts to challenge the constitutionality of the

statute.

For these reasons the State's motion to dismiss should have been

granted.

II.

On the merits of this appeal, I concur in part III of the majority opinion.

___________________________________ BEN H. CANTRELL, JUDGE