                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               September 17, 2014 Session

     CONNIE REGULI, ET. AL. V. BOARD OF PROFESSIONAL
   RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
                Appeal from the Chancery Court for Davidson County
                  No. 131516III Hon. Ellen H. Lyle, Chancellor




               No. M2014-00158-COA-R3-CV - Filed October 13, 2014




This is a declaratory judgment action in which Petitioners, who were respondents in an
ongoing disciplinary proceeding, requested the trial court answer 15 questions concerning
the applicable rules of procedure and evidence and the process and organization of the Board.
The trial court dismissed the action, finding that Petitioners merely sought an advisory
opinion and that it lacked subject matter jurisdiction to afford the relief desired. Petitioners
appeal. We affirm.


       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Affirmed; Case Remanded


J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,
P.J., W.S., and B RANDON O. G IBSON, J., joined.

Janet L. Layman and James Daniel Richardson Roberts, Jr., Nashville, Tennessee, for the
appellants, Connie Reguli and Nathan S. Moore.

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Acting Solicitor
General, and Talmage M. Watts, Senior Counsel, Tax Division, Nashville, Tennessee, for
the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.
                                          OPINION

                                     I. BACKGROUND

        Connie Reguli and Nathan S. Moore (collectively “Petitioners”) are licensed attorneys
in Tennessee and are the subjects of an ongoing disciplinary proceeding brought by the Board
of Professional Responsibility of the Supreme Court of Tennessee (“the Board”). Petitioners
initially filed a petition with the Board’s Office of Disciplinary Counsel in which they sought
an answer to 15 questions concerning the applicable rules of procedure and evidence and the
process and organization of the Board. The Board refused to hear the action and returned the
petition. Petitioners filed the present action against the Board in the trial court in which they
again sought an answer to each of the following 15 questions:

       A. Do the Tennessee Rules of Civil Procedure apply in Board Proceedings as
       authorized by Tenn. R. Sup. Ct. 9? If the answer is “some, but not all,” please
       establish which Rules do apply.

       B. Do the Tennessee Rules of Evidence apply in Board Proceedings as
       authorized by Tenn. R. Sup. Ct. 9? If the answer is “some, but not all,” please
       establish which Rules do apply.

       C. Are the Board of Professional Responsibility, Disciplinary Counsel,
       District Committee Members, and Hearing Panel Judges a “single source”
       which may communicate freely and confidentially within itself at all times?
       And if not, are those communications an ethical violation? If the
       communications are ethical violations, are the communications open records?

       D. Pursuant to the American Bar Association (“ABA”) standards, are damages
       or potential damages (as described under the ABA standard) a necessary
       element for suspension and/or disbarment of an attorney? If so, is the
       Respondent Attorney entitled to know in the petition what damages the
       Disciplinary Counsel intends to proffer? If not in the petition, at what point
       in the proceedings should Disciplinary Counsel be required to produce that
       evidence, and is the Respondent Attorney entitled to discovery regarding the
       same?

       E. In actions against an attorney for discipline, a quasi-criminal proceeding,
       should the standard of proof be “clear and convincing” as applied in at least
       six other jurisdictions (Pennsylvania, Louisiana, Florida, New Jersey, Arizona
       and Washington D.C.) and as recommended by the ABA?

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F. Has the Tennessee Supreme Court exceeded its authority in establishing
absolute immunity for all participants in the disciplinary process, including
Board Members, District Committee Members and Disciplinary Counsel? If
not, under what authority can the Supreme Court create this privilege? Do
Hearing Panel Members enjoy the same absolute immunity as other judges
even when they are improperly selected, either in violation of Tenn. R. Sup.
Ct. 9 or in violation of Due Process?

G. Is a Respondent in a Disciplinary Proceeding entitled to know all District
Committee Members or Hearing Panel Members who have reviewed and/or
acted upon matters involving the Respondent as described in Tenn. R. Sup. Ct.
9, § 8.1, even if said matters resulted in a dismissal of the claim or complaint?

H. Does the selection process of Hearing Panel Judges from the District
Committees (who are nominated and appointed by the Board and Disciplinary
Counsel) create an inherent conflict of interest since the Board essentially sits
in the role of the “Grand Jury,” the Disciplinary Counsel as the “prosecutors,”
and the Hearing Panel Members sit in the role as the “Judges”?

I. Is the application of Tenn. R. Sup. Ct. 9 in violation of the Tennessee
Constitution and of Tenn. Code Ann. since it was not approved by the
Legislature prior to its application as required under Tenn. Code Ann. § 16-3-
404? Does that violation make all actions taken by the Disciplinary Counsel,
the Board and District Committee Members void? Further, does this violation
remove all immunity designated under Tenn. R. Sup. Ct. 9?

J. Is the Hearing Panel an administrative body to the extent that a prevailing
Respondent should be allowed to seek damages for harassment or retaliation
as provided by Tenn. Code Ann. § 4-5-325 and Tenn. Code Ann. § 29-37-104?
If not, is the denial of that right a violation of equal protection under the
Tennessee and the United States Constitutions?

K. Is it a denial of the Respondent Attorney’s due process rights to be denied
a hearing before an elected judge either in the initial petition hearing or in the
appeal of the panel’s decision? Or in the alternative, should the appeal be to
the Chancery Court as provided in Tenn. Code Ann. § 4-5-322(e) which allows
for additional evidence if the evidence is material is there a good cause why
the evidence was not presented to the administrative body? The interference
with the right to practice law, right to contract, and the right to earn a living are
substantially constitutional rights protected under the constitution.

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       L. Is the Board in and of itself an unlawful body in that it acts as a Grand Jury
       without the procedural and constitutional safeguards of a regularly-convened
       Grand Jury?

       M. Since the District Committee Members act as “judges,” does the selection
       and retention of the members (allowing two three-year terms and then a
       reappointment after one year, with the provision that if a term expires, the
       member continues to serve on any pending matter in which he or she has been
       appointed) create an inherently insulated system which violates due process?

       N. Is the application of certain Canons in disciplinary proceedings
       unconstitutional in that they are unconstitutionally vague, i.e.: “interference
       with the administration of justice” (Rule 8.4); “providing competent
       representation” (Rule 1.1); “act with reasonable diligence and promptness”
       (Rule 1.3)?

       O. Have the Board, Disciplinary Counsel, and/or the District Committee
       Members failed to establish standards for prosecution and making said
       standards available for review by licensed and practicing attorneys resulting
       in an unjust and unequal administration of discipline?

        The Board responded to the petition by filing a motion to dismiss, claiming that the
exclusive remedies and procedures for attorneys in disciplinary proceedings are provided by
the Tennessee Supreme Court in Rule 9, which does not contemplate declaratory judgment
actions. The Board also asserted that the trial court lacked jurisdiction over the subject
matter and that dismissal was appropriate because Petitioners had failed to state a claim upon
which relief may be granted. The trial court agreed with the Board and dismissed the action,
finding that Petitioners merely sought an advisory opinion, that it did not have subject matter
jurisdiction because the Board was immune from suit and because it simply lacked authority
to answer the questions posed by Petitioners. This timely appeal followed.

                                         II. ISSUE

       We restate the issue raised on appeal by Petitioners as follows:

       Whether the trial court erred in granting the Board’s motion to dismiss.




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                              III. STANDARD OF REVIEW

        The trial court’s dismissal of a case based on lack of subject matter jurisdiction or for
failure to state a claim is a conclusion of law. Blackburn v. Blackburn, 270 S.W.3d 42, 47
(Tenn. 2008); Button v. Waite, 208 S.W.3d 366, 369 (Tenn. 2006) (citing State v. Cawood,
134 S.W.3d 159, 163 (Tenn. 2004)). The trial court’s conclusions of law are subject to a de
novo review with no presumption of correctness. Blackburn, 270 S.W.3d at 47; Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                                     IV. DISCUSSION

        A plaintiff in a declaratory judgment action need not show a present injury, but an
actual “case” or “controversy” is still required. Cardinal Chem. Co. v. Morton Int’l, 508 U.S.
83, 95 (1993). A bona fide disagreement must exist; that is, some real interest must be in
dispute. Goetz v. Smith, 278 S.W. 417, 418 (Tenn. 1925). Indeed, “a declaratory judgment
action cannot be used by a court to decide a theoretical question, render an advisory opinion
which may help a party in another transaction, or allay fears as to what may occur in the
future.” State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000)
(internal citations and quotations omitted).

        We agree with the trial court that Petitioners merely sought an advisory opinion to
assist them in their ongoing disciplinary proceedings. Petitioners should have simply raised
the questions contained in the petition as a defense in their respective Rule 9 proceedings,
where relevant. Rule 9 even provides an avenue for appeal in the event that Petitioners were
unsuccessful in their defense. See Tenn. Sup. Ct. R. 9, § 33.1. With these considerations in
mind, we conclude that the trial court did not err by refusing to render an advisory opinion
to assist Petitioners in their Rule 9 proceedings and that the action was properly dismissed
for failure to state a claim upon which relief may be granted. Likewise, we also agree that
the trial court lacked subject matter jurisdiction over the action.

       “The concept of subject matter jurisdiction implicates a court’s power to adjudicate
a particular type of case or controversy.” Staats v. McKinnon, 206 S.W.3d 532, 541-42
(Tenn. Ct. App. 2006) (citations omitted). Parties cannot confer subject matter jurisdiction
on a court by appearance, plea, consent, silence, or waiver. Id. at 542 (citations omitted).
In this case, Petitioners filed the present action against the Board, which is entitled to
sovereign immunity as an agent of the Tennessee Supreme Court, a state organization.
Sovereign immunity may only be waived or held inapplicable. Neither exception applies in
this case when this declaratory judgment action was not raised as a facial constitutional
challenge to enjoin a state official from enforcing an unconstitutional statute. Colonial
Pipeline v. Morgan, 263 S.W.3d 827, 853 (Tenn. 2008). Additionally, the trial court did not

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have jurisdiction to rule on the validity of a Supreme Court Rule. Barger v. Brock, 535
S.W.2d 337, 342 (Tenn. 1976) (“[T]he inferior courts of the state may not entertain any suit
or action challenging the validity of any Rule of this Court. Such a suit would be in the
nature of a bill of review or to impeach a judgment of this Court, and, in effect, would
constitute an appeal to the chancery court from the action of this Court. Such a proceeding
is unknown to the law.”). In keeping with that standard, the Board’s decisions may only be
reviewed as expressly authorized by the Tennessee Supreme Court. Brown v. BPR, 29
S.W.3d 445, 449 (Tenn. 2000). With these considerations in mind, we affirm the court’s
dismissal of the action.

                                   V. CONCLUSION

       The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellants, Connie
Reguli and Nathan S. Moore and their surety, if any.


                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




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