                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 4, 2006 Session

 ALEXANDER C. WELLS v. TENNESSEE BOARD OF REGENTS, ET AL.

                    Appeal from the Chancery Court for Davidson County
                        No. 95-2144-III  Carol McCoy, Chancellor



                No. M2005-00938-COA-R3-CV - Filed on September 27, 2006


PATRICIA J. COTTRELL, J., dissenting.

        It is elementary that a statute waiving sovereign immunity must clearly do so, and any statute
purporting to waive that immunity must be strictly construed. Courts are to determine to what extent
and in what ways the Legislature has allowed suits against the State. The statute allowing the suit
herein, Tenn. Code Ann. § 49-8-304, authorizes de novo judicial review of the termination or
suspension of tenured state university professors. The statute does not mention or refer to backpay
or the award of damages. This court cannot imply such a remedy or interpret the statute so as to
enlarge the waiver of sovereign immunity beyond that intended by the legislature.

        Mr. Wells bases his entitlement to backpay on Chapdelaine. The discussion in Chapdelaine
of the award of backpay in light of the sovereign immunity of the State is very limited. It appears,
however, that the Court found a waiver of immunity in Tenn. Code Ann. § 49-1417 as it existed at
that time. This reliance is explained by language in then-existing Tenn. Code Ann. § 49-1421,
quoted in the Chapdelaine opinion, that stated that tenured college and university teachers were
entitled to judicial review of board decisions “for the same purposes and in the same manner
provided by § 49-1417.” See also Eads v. Humphries, 562 S.W.2d 805, 806 (quoting the statute).

        At that time, Tennessee Code Annotated § 49-1417 was part of the statutory scheme
applicable to tenured teachers in local school systems. Thus, at the time of the employment action
at issue in Chapdelaine, tenured teachers at colleges governed by the State Board of Education were
entitled to a judicial review co-extensive in scope and remedy with that available to tenured teachers
in local elementary and secondary schools. The Chapdelaine court, finding that Tenn. Code Ann.
§ 49-1417 provided jurisdiction of actions brought by tenured teachers to review their dismissal,
noted that the Court had “consistently approved awards of back pay as to teachers in the city and
county school systems.” Chadelaine, 532 S.W.2d at 550.

       In 1976, however, the General Assembly severed the connection between actions regarding
tenured college and university professors in Board of Regents schools from those regarding
elementary and secondary teachers in local school systems. 1976 Tenn. Pub. Acts, ch. 839. That
legislation is now codified at Tenn. Code Ann. § 49-8-301, et seq. (dealing with tenure for faculty
at institutions within the state university and community college system, governed by the State Board
of Regents). Thus, the basis for the Chapdelaine court’s reliance on authority governing public
school teachers in local systems no longer exists.

        The current Board of Regents statutes provide for de novo judicial review of the dismissal
or suspension of a tenured faculty member. Tenn. Code Ann. § 49-8-304. Thus, the court’s review
is limited to the propriety of the Board’s decision to dismiss or suspend the tenured professor.
Nothing in that statute, or the statute regarding the Board’s adoption of policies for “the termination
of faculty with tenure,” Tenn. Code Ann. § 49-8-301(a)(3), or the statutes regarding procedures for
and review of such actions, Tenn. Code Ann. §§ 49-8-302 through - 304, authorizes the payment or
award of backpay. An action for judicial review of the Board’s decision does not include the
remedies available in a 42 U.S.C. § 1983 action or one brought under various state and federal
statutes prohibiting employment discrimination.

       There is certainly an argument that the Chapdelaine court did not rely exclusively on Tenn-
Code Ann. § 49-1417. The opinion includes language indicating that judicial review of a termination
decision would be less than satisfactory or effective if backpay were not available. Of course, a
decision that the Board’s termination decision must be overturned brings other concrete relief. In
any event, the doctrine of sovereign immunity precludes full monetary relief against the State in
many situations. Exceptions to that doctrine must be explicit and have not generally been based on
concepts of equity or implication.

        While I understand the majority’s adherence to Chapdelaine, I would interpret that opinion
as relying primarily on a statutory scheme that has been changed, effectively eliminating the basis
for the backpay ruling. It appears to me that the proper interpretation of Chapdelaine and the
availability of an award of backpay against the State under a statute that is silent as to that remedy
are issues that need to be addressed by the Tennessee Supreme Court.




                                                       ___________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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