                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   May 21, 2014 Session

                       LISA HOWE, ET AL. V. BILL HASLAM

                Appeal from the Chancery Court for Davidson County
                    No. 11778II    Carol L. McCoy, Chancellor



             No. M2013-01790-COA-R3-CV           - Filed November 4, 2014


W. N EAL M CB RAYER, J., concurring in part.

        I agree with Judge Farmer’s conclusion that the claims arising from HB600’s
reordering of the political process, which strips Appellants of the ability to seek anti-
discrimination protections at the local level, should be dismissed. However, because I find
the United States Supreme Court precedent in Romer v. Evans, 517 U.S. 620 (1996), difficult
to distinguish by reference to the structural barrier it imposes, I write separately. I would
instead distinguish Romer because, unlike the amendment at issue there, the burden HB600
imposes applies equally to any group seeking protected status. Therefore, Appellants have
not suffered a particularized injury sufficient to confer standing.

      I also depart from Judge Farmer in that I find that there is a sufficient case or
controversy so that the Gay Straight Alliance of Hume Fogg Academic Magnet High School
(“GSA-HFA”) may proceed with a declaratory action to determine whether HB600 applies
to Local Education Agencies.

                              I. P OLITICAL P ROCESS C LAIMS

        At issue is whether HB600’s reapportionment of legislative power presents a
justiciable controversy capable of resolution by the Court. HB600 strips local governments
of the ability to create new, non-State recognized, protected classes through ordinance,
resolution, or any other means. Although this prevents seeking protected status at a local
level, local governments in Tennessee “have no authority other than that granted by the
legislature and the legislature may remove or alter that authority as it chooses,” within
constitutional limits. Nichols v. Tullahoma Open Door, Inc., 640 S.W.2d 13, 18 (Tenn. Ct.
App. 1982). Article II, Section 3 of our Constitution vests all of the State’s legislative power
in the General Assembly, and with limited exception, “the General Assembly has the sole and
plenary authority to determine whether, and under what circumstances, portions of that power
should be delegated to local governments.” Southern Constructors, Inc. v. Loudon Cnty. Bd.
of Educ., 58 S.W.3d 706, 711 (Tenn. 2001). States are “afforded wide leeway when
experimenting with the appropriate allocation of state legislative power.” Holt Civic Club
v. Tuscaloosa, 439 U.S. 60, 71 (1978). Against this widely recognized rule is the limited
exception that state reapportionment of legislative power may be challenged where it offends
the Equal Protection Clause. See, e.g., Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457,
470 (1982).

       Although standing was not an issue directly addressed by the Supreme Court in
Romer, Judge Farmer finds that the Romer plaintiffs had standing because their ability to
seek protective legislation was completely thwarted by Colorado constitutional Amendment
2. Judge Farmer then seeks to distinguish Appellants’ political process claims by finding
that, while HB600 does prevent LGBT advocacy at the local level, it does not erect a
complete structural barrier as in Romer. I find this distinction to be untenable and
respectfully disagree.

       It is not clear from the Supreme Court’s analysis in Romer that the structural barrier
imposed by Amendment 2 was the sole basis for conferring standing. In discussing the
Romer plaintiffs, the Supreme Court stated, “[a]mong the plaintiffs . . . were homosexual
persons, some of them government employees . . . [who] alleged that enforcement of
Amendment 2 would subject them to immediate and substantial risk of discrimination on the
basis of their sexual orientation.” Romer, 517 U.S. at 625. The Court further stated that
“Amendment 2 bars homosexuals from securing protection against the injuries that [anti-
discrimination laws] address . . . [t]hat in itself is a severe consequence, but there is more .
. . Amendment 2, in addition, nullifies specific legal protections for this targeted class.” Id.
at 629. Although the Court may have relied on the complete structural barrier raised by
Amendment 2 in conferring standing, it is possible the Court found allegations of an
“immediate and substantial risk of discrimination” and the nullification of “specific legal
protections,” allegations mirrored by the Appellants here, sufficient to confer standing.

        Furthermore, in light of the Supreme Court’s other political process cases, it seems
likely that even a partial barrier to LGBT advocacy may be sufficient to confer standing. See
Washington, 458 U.S. 457; Gordon v. Lance, 403 U.S. 1 (1971); Hunter v. Erickson, 393
U.S. 385 (1969); Reitman v. Mulkey, 387 U.S. 369 (1967). In Washington v. Seattle School
District No. 1, 458 U.S. 457 (1982), a Seattle school district adopted a plan to promote the
desegregation of its schools. 458 U.S. at 461. In response, the State of Washington passed
Initiative 350, which prevented school districts from bussing students for purposes of
desegregation, although it contained broad exemptions to allow bussing for other reasons.
Id. at 462. In Hunter v. Erickson, 393 U.S. 385 (1969), an amendment to the Akron City
Charter required that any fair housing ordinance relating to discrimination must be passed

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by a vote of the electorate at-large. 393 U.S. at 387, 389. However, other types of housing
ordinances could be passed by the City Council. Id. Each of these cases found that even a
partial structural barrier to the political process can constitute a violation of the Equal
Protection Clause. Seattle Sch. Dist. No. 1, 458 U.S. at 487; Hunter, 393 U.S. at 393.

        Because Romer relies on the Supreme Court’s political process cases, 517 U.S. at 625,
it must be interpreted in light of subsequent cases expounding upon the political process
doctrine. The most recent articulation of the political process doctrine can be found in the
Court’s decision in Schuette v. Coalition to Defend Affirmative Action, Integration and
Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), –– U.S. ––, 134
S. Ct. 1623 (2014). In Schuette, proponents of affirmative action brought suit against the
Governor of Michigan and various boards of public universities after the passage of a State
constitutional amendment that barred the consideration of race-based criteria in admissions
decisions. 134 S. Ct. at 1629-30. The Court, in a plurality opinion, held that the political
process doctrine stands for the proposition that the reapportionment of legislative power may
be challenged only where a serious risk of “specific injuries from hostile discrimination [are]
at issue.” Id. at 1634.

       Justices Scalia and Thomas joined the Schuette plurality insofar as its decision
repudiated the political process doctrine handed down by Reitman v. Mulkey, 387 U.S. 369
(1967), and its progeny. Id. at 1640. Their concurrence noted that the Court’s political
process cases create a danger of swallowing the rule of state sovereignty, creating a situation
where a state may permanently forfeit its ability to legislate over racial issues. Id. at 1646.
They would return to the principle that, where a plaintiff brings an Equal Protection
challenge against a facially neutral act, they must bear the burden of proving a disparate
impact as well as a discriminatory purpose or intent. Id. at 1640.

        The plurality’s holding in Schuette, that a challenge to the reapportionment of
legislative power must be accompanied by a risk of specific injury, is consistent with our
general requirements for standing. Standing must be based on a particularized harm, rather
than an injury that is shared by citizens of the State generally. ACLU of Tenn. v. Darnell, 195
S.W.3d 612, 620 (Tenn. 2006); City of Chattanooga v. Davis, 54 S.W.3d 248, 280 (Tenn.
2001) (refusing to confer standing on plaintiff where whatever harm he may have suffered
was indistinguishable from the public at large); Mayhew v. Wilder, 46 S.W.3d 760, 767
(Tenn. Ct. App. 2001).

       Appellants’ political process claims are insufficient to confer standing because their
asserted injury lacks particularity. This case is unlike Romer, in which the amendment at
issue specifically targeted the LGBT population. 517 U.S. at 624. As the Colorado Supreme
Court noted in the litigation leading to Romer, “[r]ather than attempting to withdraw

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antidiscrimination issues as a whole from state and local control, Amendment 2 singles out
one form of discrimination and removes its redress from consideration by normal political
process.” Evans v. Romer, 854 P.2d 1270, 1285 (Colo. 1993). HB600 is more akin to the
former situation, stripping local governments of the ability to create any new protected
classes under State antidiscrimination legislation and placing that power in the hands of the
General Assembly. While HB600 may prevent LGBT citizens from seeking protection under
antidiscrimination laws at the local level, it imposes the same burden on any group that seeks
such protection. Therefore, because Appellants are not at risk of any specific injury, I would
find that their claims lack particularity and concur with Judges Farmer and Stafford’s
conclusion that they lack standing to pursue their political process claims.

             II. A PPLICATION OF HB600 TO L OCAL E DUCATION A GENCIES

        In regard to Mr. Roberts’ and the GSA-HFA’s claims concerning the application of
HB600 to Local Education Agencies, I do not find the issue is moot. While Mr. Roberts has
failed to show a sufficient injury to confer standing, I would allow GSA-HFA to proceed
with the declaratory action to determine whether HB600 applies to Local Education
Agencies. The difference in these two Appellants’ claims lies in the fact that GSA-HFA has
student members who could demonstrate a sufficient injury to confer standing whereas
Mr. Roberts is seeking to assert standing on behalf of others.

        The plaintiff in a declaratory judgment action is not required to demonstrate a present
injury, but there must be an actual case or controversy. Colonial Pipeline Co. v. Morgan, 263
S.W.3d 827, 837-38 (Tenn. 2008). “A bona fide disagreement must exist; that is, some real
interest must be in dispute.” Id. at 838 (citing Goetz v. Smith, 278 S.W. 417, 418 (Tenn.
1925)). The prohibition from rendering advisory opinions applies even to actions for
declaratory judgment. Id. (citing Third Nat’l Bank v. Carver, 218 S.W.2d 66, 69 (Tenn. Ct.
App. 1948)). Justiciability doctrines such as standing, ripeness, mootness, and political
question continue to apply to such actions. Id. (citing Texas v. United States, 523 U.S. 296,
300-01 (1998) (holding declaratory judgment action was not ripe); Cardinal Chem. Co. v.
Morton Int’l, Inc., 508 U.S. 83, 83 (1993) (finding declaratory judgment action moot)). An
action for declaratory judgment may proceed only so long as there is a “substantial
controversy, between parties having adverse legal interests, of sufficient immediacy and
reality to warrant [it].” Hatcher v. Chairman, 341 S.W.3d 258, 261 (Tenn. Ct. App. 2009)
(quoting Evers v. Dwyer, 358 U.S. 202, 204 (1958)).

       Judge Farmer concludes that the issue is moot on the basis of the Governor’s answer
where he asserts, “HB600 does not apply to Local Education Agencies and does not overturn,
prohibit, or affect school anti-discrimination or anti-bullying policies in any way.” However,
this assertion was made by the State in its Answer to the original Complaint, and as no

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answer has been filed to Appellants’ Amended Complaint, it is unclear whether the State still
takes this position. See In re Polichuk, 506 B.R. 405, 440 n.37 (Bankr. E.D. Pa. 2014)
(“Once a pleading is superceded [sic] by an amended answer or response, however, the
admissions in the superceded pleading, as a general rule, lose their binding force.”). In fact,
some of the statements made by the State at oral argument suggest that it may have reversed
its position on this issue. The State’s argument before this Court did not suggest that HB600
was inapplicable to Local Education Agencies, but rather that HB600 did not invalidate anti-
bullying policies because they were of general applicability. Moreover, when requested to
stipulate to this construction of the statute, the Governor, through counsel, declined.

        Regardless of whether the Governor agreed to stipulate to the applicability of HB600
to Local Education Agencies, his interpretation would not be binding on the State or any
other governmental entity—including this Court. “[Q]uestions of law are not subject to
stipulation by the parties to a lawsuit and . . . a stipulation purporting to state a proposition
of law is a nullity.” Mast Adver. & Pub., Inc. v. Moyers, 865 S.W.2d 900, 902 (Tenn. 1993);
see also Hyneman v. Hyneman, 152 S.W.3d 549, 555 (Tenn. Ct. App. 2003) (“Parties may
stipulate to questions of fact or legal strategies but may not stipulate to questions of law.”);
Cedyco Corp. v. Whitehead, 253 S.W.3d 877, 880 (Tex. App. 2008) (“[A] request for
admission asking a party to admit or deny a purely legal issue is improper, and a deemed
admission involving a purely legal issue is of no effect.”); Wilson v. Ridgeway Area Sch.
Dist., 596 A.2d 1166, 1168 (Pa. Commw. Ct. 1991) (finding that allegations related to issues
of law do not constitute judicial admissions) ; J. R. Meade Co. v. Forward Const. Co., 526
S.W.2d 21, 30 (Mo. Ct. App. 1975) (holding that the trial court is not bound by the parties
admissions regarding questions of law). The proper construction of a statute is a task for the
court, not parties to litigation.

      Here, I find that the case or controversy requirement is satisfied with respect to GSA-
HFA’s request for a declaratory judgment on whether HB600 applies to Local Education
Agencies. Furthermore, although there is some suggestion that the State may agree with
Appellants’ construction, such an agreement would not necessarily render the matter moot.

        Insofar as Judge Farmer’s opinion is meant to be its own construction of HB600, I
decline to make such an interpretation as that issue is not before the Court. Therefore,
because I conclude that the application of HB600 to Local Education Agencies presents a
justiciable case or controversy, GSA-HFA’s request for a declaratory judgment on the
application of HB600 to Local Education Agencies should be remanded to the trial court for
further proceedings.

                                                     _________________________________
                                                     W. NEAL McBRAYER, JUDGE

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