                                                                                         02/21/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                April 16, 2019 Session

      TENNESSEE DEMOCRATIC PARTY v. HAMILTON COUNTY
      ELECTION COMMISSION; MARK GOINS IN HIS OFFICIAL
         CAPACITY AS STATE ELECTION COORDINATOR;
                      AND ROBIN SMITH

               Appeal from the Chancery Court for Hamilton County
                No. 18-0426       Jeffrey M. Atherton, Chancellor
                     ___________________________________

                           No. E2018-01721-COA-R3-CV
                       ___________________________________

Political party filed suit against the county election commission and the State election
coordinator requesting injunctive relief to prevent a county election commission from
allowing a replacement for a candidate in another party’s primary election for the office
of state representative who had withdrawn from the race after the qualifying deadline; the
plaintiff party also sought a declaration that the withdrawal of the original candidate did
not allow for a replacement under the circumstances presented. The primary election
ensued, and the replacement candidate advanced to the general election; thereafter, the
trial court denied the injunction and granted the defendants’ motions to dismiss the
action. After the appeal was filed but before argument, the general election was held and
the other party’s candidate was elected. We have determined that this case is moot and,
accordingly, dismiss the appeal; we deny the request for damages for a frivolous appeal.

              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN WESLEY MCCLARTY, J., joined.

J. Gerard Stranch, IV; Benjamin A. Gastel; and Seamus T. Kelly, Nashville, Tennessee,
for the appellant, Tennessee Democratic Party.

Stephen S. Duggins, Chattanooga, Tennessee, for the appellee, Hamilton County Election
Commission.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and Janet M. Kleinfelter, Deputy Attorney General, for the appellee, Mark
Goins, State Election Coordinator.
Ben M. Rose, Brentwood, Tennessee, for the appellee, Robin Smith.

                    I. FACTUAL AND PROCEDURAL HISTORY

      This is a challenge to the decision of the Hamilton County Election Commission
(“HCEC”) to replace Gerald McCormick, a candidate who had qualified in April of 2018
to run in the August 2, 2018 Republican Party primary for the office of State
Representative and who withdrew after the qualifying deadline, with Robin Smith, a new
candidate.

       On July 19, 2018, the Tennessee Democratic Party (“TNDP”) filed a Complaint
for declaratory and injunction relief or, alternatively, a Petition for Writ of Certiorari,
naming the HCEC and the State Election Coordinator, Mark Goins, as defendants. The
TNDP sought (1) a declaratory judgment that “Gerald McCormick’s withdrawal from
running for House District 26 did not trigger any of the enumerated reasons in
Tenn[essee] Code Ann[otated] section 2-5-101(g)(1)” and (2) an injunction prohibiting
the HCEC and Mark Goins from “approving and/or printing any ballot with any
Republican Candidate appearing as a candidate for House District 26” and from
“counting any votes for Robin Smith from any ballot where she appears as a candidate
for House District 26.” Each defendant filed a motion to dismiss.

      The primary election was held, and Ms. Smith was chosen as the Republican Party
nominee; she subsequently filed a motion to intervene as a defendant in this action, and
the motion was granted by agreement. She also filed a motion to dismiss the case.

      The trial court heard the injunction motion and the motions to dismiss on August
31 and ruled from the bench. The court entered separate orders on September 19
memorializing its ruling denying the injunction and granting the motions to dismiss.
With respect to the motions to dismiss:

    HCEC. The trial court ruled that the TNDP did not have standing to bring an
     action against the HCEC and granted HCEC’s motion to dismiss.

    Mr. Goins. The trial court ruled that it did not have subject matter jurisdiction and
     that all claims against Mr. Goins were barred under the doctrine of sovereign
     immunity; accordingly, it granted Mr. Goins’ Motion to Dismiss.

    Ms. Smith. The trial court granted Ms. Smith’s motion based on TNDP’s lack of
     standing and “on the additional ground that this Court lacks jurisdiction to
     determine a political party’s nominee for elected office following resolution of an
     election contest pursuant to Term. Code Ann. § 2-17-104.”



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       The TNDP appeals, raising several issues. After the notice of appeal was filed but
before briefs were submitted and argument held, the general election was held and Ms.
Smith was elected. Although none of the issues raised by TNDP on appeal directly
address mootness, TNDP discussed the issue in its brief in a footnote to its argument
relating to the trial court’s “failure to timely rule on the TNDP’s [temporary restraining
order] request and request for expedited hearing.” TNDP stated that it anticipated that
defendants would argue that the case was moot “given the election in August and the
subsequent general election that was held in November, 2018.” Each defendant has
raised the question of mootness as an issue on appeal, THDP has responded, and it was
discussed at oral argument.

        For the reasons set out below, we have concluded that the requests for injunctive
relief are moot because the actions sought to be enjoined have occurred, and that the
request for declaratory judgment is moot because Ms. Smith was listed on the ballot and
subsequently elected. Further, none of the exceptions to the mootness doctrine are
present.

                                      II. ANALYSIS

       A) The Applicability of the Mootness Doctrine

        A moot case is one that has lost its justiciability because it no longer involves a
present, ongoing controversy. McCanless v. Klein, 188 S.W.2d 745, 747 (Tenn. 1945);
County of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996). A case will
be considered moot if it no longer serves as a means to provide some sort of judicial
relief to the prevailing party. Knott v. Stewart County, 207 S.W.2d 337, 338-39 (Tenn.
1948); Ford Consumer Fin. Co. v. Clay, 984 S.W.2d 615, 616 (Tenn. Ct. App. 1998). In
other words, “[m]ootness results when events occur during the pendency of a litigation
which render the court unable to grant the requested relief.” Carras v. Williams, 807 F.2d
1286, 1289 (6th Cir. 1986).

       Determining whether a case is moot is a question of law. Alliance for Native
American Indian Rights in Tennessee, Inc., 182 S.W.3d 333, 339 (Tenn. Ct. App. 2005).
An appellate court “will dismiss appeals as moot when ‘by a court decision, acts of
parties, or other causes occurring after the commencement of the action the case has lost
its controversial character.’” West v. Vought Aircraft Industries, Inc., 256 S.W.3d 618,
625 (Tenn. 2008) (quoting McCanless, 188 S.W.2d at 747 (Tenn. 1945)).

      In the complaint, TNDP sought to enjoin the HCEC and Mr. Goins from
“approving and/or printing any ballot with any Republican Candidate appearing as a
candidate for House District 26” and to enjoin the HCEC “from counting any votes for
Robin Smith from any ballot where she appears as a candidate for House District 26” and



                                            -3-
from “temporarily and permanently . . . printing or displaying any ballot containing the
name of any person as the Republican Party candidate for House District 26.”

       The primary and general elections proceeded with Ms. Smith on the ballots. In
light of these events, we agree with the trial court that the requests for injunctive relief
are moot.1 For the same reason, the request for a declaratory judgment, wherein TNDP
sought a declaration that Mr. McCormick’s withdrawal did not trigger Tennessee Code
Annotated section 2-5-101(g)(1)2 and allow Ms. Smith to appear on the primary ballot, is
moot because Ms. Smith was on the ballot and was elected. We proceed to consider
whether any of the exceptions to the application of the doctrine applies in this case.

         B) Exceptions to Mootness

        The evolution and identity of the exceptions to the mootness doctrine were set
forth in Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cty.:



1
   A court should dismiss an appeal as moot “[i]f by the time a controversy reaches the appellate court
questions presented have been deprived of practical significance and have become academic and abstract
in character.” State ex rel. Adventist Health Care Sys./Sunbelt Health Care Corp. v. Nashville Mem’l
Hosp., 914 S.W.2d 903, 907 (Tenn. Ct. App. 1995) (internal citations omitted). These principles are
“especially true” when injunctive relief is sought; “[w]here it appears the act to be enjoined has been
consummated, an action for an injunction presents only a moot question and will be dismissed.” Id
(quoting Badgett v. Broome, 409 S.W.2d 354, 356 (Tenn. 1966)).
2
    Tennessee Code Annotated section 2-5-101 provides:

         (g)(1) If a candidate in a primary election or nonpartisan general election, after the
         qualifying deadline:
                  (A) Dies;
                  (B) Withdraws because of military call up;
                  (C) Withdraws because of physical or mental disability, such physical or mental
                  disability being properly documented by competent medical authority;
                  (D) Withdraws because such candidate is forced to change residence by the
                  candidate's employer for a job-related reason;
                  (E) Is declared ineligible or disqualified by a court or disqualified by the political
                  party executive committee under § 2-5-204;
                  (F) Is declared disqualified by the peace officer standards and training (POST)
                  commission pursuant to § 8-8-102(e); or
                  (G) Is declared disqualified by the Tennessee highway officials certification
                  board pursuant to § 54-7-104;
         leaving no candidates for nomination or office, additional candidates may qualify for the
         election or that nomination by filing their petitions as provided by law no later than
         twelve o’clock (12:00) noon, prevailing time on the fortieth day before the election. If
         any of these events occur within ten (10) days of the fortieth day, the qualifying deadline
         shall be twelve o’clock (12:00) noon, prevailing time on the tenth day following the death
         or withdrawal.


                                                      -4-
       Tennessee courts do not apply the mootness doctrine mechanically. Rather,
       when the question of mootness is raised, they consider many factors,
       including the reason that the case is alleged to be moot, the stage of the
       proceeding, the importance of the issue to the public, and the probability
       that the issue will recur. Over time, the courts have recognized several
       circumstances that provide a basis for not invoking the mootness doctrine.
       These circumstances include: (1) when the issue is of great public
       importance or affects the administration of justice, (2) when the challenged
       conduct is capable of repetition and of such short duration that it will evade
       judicial review, (3) when the primary subject of the dispute has become
       moot but collateral consequences to one of the parties remain, and (4) when
       the defendant voluntarily stops engaging in the challenged conduct.

301 S.W.3d 196, 204 (Tenn. 2009) (footnotes omitted).

       Mr. Goins, HCEC, and Ms. Smith, in varying degrees, rely upon Hatcher v.
Chairman, 341 S.W.3d 258 (Tenn. Ct. App. 2009), in arguing that the public interest
exception does not apply in this case.

        In Hatcher a candidate for election to the Memphis City Council sought a
declaratory judgment that another candidate was not qualified because she was an elected
member of the Memphis School Board and also sought an injunction to prevent that
candidate’s name from being included on the ballot. 341 S.W.3d at 260. After Mr.
Hatcher filed his complaint, the election was held and the other candidate elected; the
trial court dismissed the case pursuant to Tennessee Rule of Civil Procedure 12.02(6),
holding that the case was moot. On appeal, Mr. Hatcher argued that the public interest
exception applied; this court rejected the argument. In so holding, this court approved the
rationale which had been stated by the trial court for its determination:

       [T]he voters have elected [the city councilwoman] by almost 80% of the
       vote, [the city councilwoman] has resigned her position with the Memphis
       City School Board, [the city councilwoman] has been inaugurated into her
       position as City Councilwoman, and [the city councilwoman] has
       performed her duties in that office since the inauguration. The trial court
       reached the conclusion that these events had changed the posture of Mr.
       Hatcher’s case so as to render it moot.

Id. at 261. Looking to both LaRouche v. Crowell, 709 S.W.2d 585 (Tenn. Ct. App. 1985),
and Perry v. Banks, 521 S.W.2d 549 (Tenn. 1975), for guidance, this court affirmed the
lower’s court determination of mootness:

              Mr. Hatcher’s case is one primarily involving personal rights rather
       than rights of great public concern. In his complaint, Mr. Hatcher alleges


                                            -5-
       that he has been injured by the election of [the city councilwoman]. This
       may be true; however, he has failed to allege facts sufficient to show that
       the voting public was injured. In fact, from the record, it appears that the
       voters made their preference known in their overwhelming election of [the
       city councilwoman].

Hatcher, 341 S.W.3d at 262–63.

        In the case at bar, Mr. Goins contends that “the dispute in this case does not
involve any constitutional rights,” and that the record gives no indication that conduct
similar to that giving rise to this dispute is substantially probable to recur. Further, Mr.
Goins asserts that “[a] decision on the merits will provide little assistance to public
officials, because this action is dependent on the specific facts and circumstances
involved” and that “this case fails to present any appreciable degree of urgency.”
Ultimately, Mr. Goins sees this case as one that primarily involves personal rights, as in
Hatcher, and thus cannot be rid of its mootness by the “great public interest” exception.
HCEC relies upon Hatcher in arguing that the “overwhelming election of Ms. Smith”
precludes the TNDP from claiming the voting public was injured.

       TNDP attempts to distinguish this case from Hatcher by stating that TNDP is not
challenging whether candidate Smith is qualified to hold office; instead, TNDP is
challenging “the legality of permitting her to be on the ballot.” According to TNDP, a
candidate filing an untimely qualifying petition, as Ms. Smith has done, cannot legally
win an election with her name appearing on the ballot. In its reply brief, TNDP contends
that the election was “unlawful” and is not moot “as the TNDP, its members, and the
public have been deprived of a free and fair election held in accordance with state law[,]
and the candidate appearing unlawfully on the ballot is holding and exercising political
power gained through an unlawful election.”

        We do not believe that this is the “great public interest” necessary to satisfy the
exception to the mootness doctrine. In this regard, we are guided by the standard set
forth in the Norma Faye Pyles Lynch case:

              Our judicial heritage speaks to restraint in addressing issues when
       the parties do not have a continuing, real, live, and substantial interest in the
       outcome. Accordingly, as a general rule, Tennessee’s appellate courts
       should dismiss appeals that have become moot regardless of how appealing
       it may be to do otherwise. However, under “exceptional circumstances
       where the public interest clearly appears,” Dockery v. Dockery, 559 S.W.2d
       952, 955 (Tenn. Ct. App. 1977), the appellate courts may exercise their
       judgment and discretion to address issues of great importance to the public
       and the administration of justice. State v. Rodgers, 235 S.W.3d [92] at 97
       [(Tenn. 2007)]. To guide their discretion, the courts should first address the


                                             -6-
          following threshold considerations: (1) the public interest exception should
          not be invoked in cases affecting only private rights and claims personal to
          the parties; (2) the public interest exception should be invoked only with
          regard to “issues of great importance to the public and the administration of
          justice”; (3) the public interest exception should not be invoked if the issue
          is unlikely to arise in the future; and (4) the public interest exception should
          not be invoked if the record is inadequate or if the issue has not been
          effectively addressed in the earlier proceedings.

                 If the threshold considerations do not exclude the invocation of the
          public interest exception to the mootness doctrine, the courts should then
          balance the interests of the parties, the public, and the courts to determine
          whether the issues in the case are exceptional enough to address. In making
          this determination, the courts may consider, among other factors, the
          following: (1) the assistance that a decision on the merits will provide to
          public officials in the exercise of their duties, (2) the likelihood that the
          issue will recur under similar conditions regardless of whether the same
          parties are involved, (3) the degree of urgency in resolving the issue, (4) the
          costs and difficulties in litigating the issue again, and (5) whether the issue
          is one of law, a mixed question of law and fact, or heavily fact-dependent.

301 S.W.3d at 210–11.

        The decision being challenged in this case is the action of the Election
Commission in allowing Ms. Smith to qualify as a candidate in the primary election,
which led to her qualification for, and subsequent election to, the House of
Representatives. The TNDP does not articulate a public issue, other than that which is
inherent in the contention that the HCEC’s action violated Tennessee Code Annotated
section 2-5-101(g)(1). In our judgment this is a challenge to the timeliness of Ms.
Smith’s qualifying as a candidate, given the circumstances of Mr. McCormick’s
withdrawal after the qualifying deadline; it is an issue that is unlikely to recur in the
future, does not involve the structural integrity of the election itself or the results and, due
to the uniqueness of the circumstances, our decision on the merits would not significantly
provide guidance in the administration of the election law. For whatever reason, the
TNDP did not pursue a determination prior to the election of the issue for which it now
seeks declaratory relief.3

3
    As to declaratory judgments, this Court has stated:

          The Tennessee Declaratory Judgments Act, Tenn. Code Ann. §§ 29-14-101 – 113 (2008),
          makes the equitable remedy of declaratory judgment available to courts; however, in
          order for such remedy to lie, there must be a showing of a “‘substantial controversy,
          between parties having adverse legal interests, of sufficient immediacy and reality to
          warrant a declaratory judgment.’” Evers v. Dwyer, 358 U.S. 202, 204, 79 S.Ct. 178, 179,


                                                     -7-
       Nothing in the record suggests that these facts are likely to recur—or that they will
evade review if they do recur. The parties discussed at length the delay in this case—
though disagreeing as to whether the trial court or the plaintiff was at fault in causing
such delay—so it stands to reason that this case would not evade review if it did recur.
The defendants have carried their burden in demonstrating that the “capable of repetition
yet evading review” exception is not applicable here, and TNDP failed to provide any
contrary evidence or argument.4

          B) Remaining Issues

        Ms. Smith has stated as an issue on appeal “[w]hether the trial court’s dismissal
was entered pursuant to Rule 12.02(1) or Rule 12.02(6) of the Tennessee Rules of Civil
Procedure.” Other than stating the standards of review under Rule 12.02(1) and Rule
12.02(6), Ms. Smith only addresses this issue in the conclusion of her brief, stating “the
trial court should be affirmed in all respects, except that it characterized the dismissal
being made pursuant to Tenn. R. Civ. P. 12.02(1) rather than 12.02(6), which was in
error.” She presents no further argument. We discern no error in the court’s dismissal of
this action pursuant to Rule 12.02(1).

        Finally, in Ms. Smith’s brief and the motion to dismiss filed with this Court, she
argued that the TNDP’s appeal should be dismissed because the issues are moot and
asked the Court to award “Frivolous Appeal Damages.” This court is authorized by
statute to award damages against an appellant if we determine that the appeal is frivolous
or that it was taken solely for delay. Tenn. Code Ann. § 27-1-122. The statute, however,
is to be interpreted and applied strictly to avoid discouraging legitimate appeals.
Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2004) (citing Davis v. Gulf
Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977) (discussing the predecessor of Tenn. Code
Ann. § 27-1-122)). Upon due consideration, the appeal is not frivolous, and we decline
to award damages.




          3 L.Ed.2d 222 (1958) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312
          U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)). If, because of the passage of
          time, a case has lost its character as a present, live controversy, or the questions involved
          have been deprived of their practical significance, the courts have refused to decide them
          because they are then “moot” or “academic.” See Perry v. Banks, 521 S.W.2d 549, 550
          (Tenn. 1975).

Hatcher, 341 S.W.3d at, 261.
4
    TNDP does not argue that either of the other exceptions apply.


                                                      -8-
                                   III. CONCLUSION

      For the foregoing reasons, we affirm the holding of the trial court that this case is
moot; accordingly, the appeal is dismissed.




                                                  RICHARD H. DINKINS, JUDGE




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