        IN THE COURT OF APPEALS OF TENNESSEE
                    AT NASHVILLE
                                                     FILED
BRIAN M. McKINNEY,                   )                March 16, 2000
                                     )
     Plaintiff/Appellant,            )              Cecil Crowson, Jr.
                                                   Appellate Court Clerk
                                     )
STATE OF TENNESSEE,                  )
                                     )   Appeal No.
     Plaintiff Intervener/Appellant, )   M1999-00565-COA-R9-CV
                                     )
VS.                                  )   Williamson Circuit
                                     )   No. II-98552
LEVI S. JARVIS,                      )
                                     )
     Defendant/Appellee,             )
                                     )
WILLIAMSON COUNTY                    )
HIGHWAY DEPARTMENT,                  )
                                     )
     Defendant.                      )

APPEALED FROM THE CIRCUIT COURT OF WILLIAMSON COUNTY
               AT FRANKLIN, TENNESSEE

              THE HONORABLE RUSS HELDMAN, JUDGE


FOR APPELLANT McKINNEY:                  FOR APPELLEE JARVIS:

MATHEW R. ZENNER                         CYRUS L. BOOKER
Nashville, Tennessee                     CHARLNETTE A. RICHARD
                                         Nashville, Tennessee
FOR APPELLANT
STATE OF TENNESSEE:

PAUL G. SUMMERS
Attorney General & Reporter

KIMBERLY J. DEAN
Deputy Attorney General
Nashville, Tennessee


                     REVERSED AND REMANDED


                                         BEN H. CANTRELL,
                                         PRESIDING JUDGE, M.S.

                              OPINION
             The question we must decide is whether a state statute violates the

due process and separation of powers provisions of the state constitution when

in some civil actions it prohibits evidence of the failure to wear a car safety belt.

The Circuit Court of Williamson County held the statute unconstitutional. For

the reasons that follow we reverse the circuit court’s order.



                                         I.



             Brian McKinney sued Levi Jarvis for personal injuries suffered

while McKinney was a passenger in a pick-up truck owned and operated by

Jarvis. Jarvis answered the complaint and included as an affirmative defense

McKinney’s failure to wear his seat belt. McKinney moved to strike that defense

on the basis of Tenn. Code Ann. § 55-9-604:

                   (a) The failure to wear a safety belt shall not be
             admissible into evidence in a civil action; provided,
             that evidence of a failure to wear a safety belt, as
             required by this chapter, may be admitted in a civil
             action as to the causal relationship between non-
             compliance and the injuries alleged, if the following
             conditions have been satisfied:

                      (1) The plaintiff has filed a products liability
             claim;

                    (2) The defendant alleging non-compliance with
             this chapter shall raise this defense in its answer or
             timely amendment thereto in accordance with the rules
             of civil procedure; and

                    (3) Each defendant seeking to offer evidence
             alleging non-compliance with this chapter has the
             burden of proving non-compliance with this chapter,
             that compliance with this chapter would have reduced
             injuries and the extent of the reduction of such injuries.

                    (b) Upon request of any party, the trial judge
             shall hold a hearing out of the presence of the jury as
             to the admissibility of such evidence in accordance

                                         -2-
             with the provisions of this section and the Tennessee
             Rules of Evidence.



             Jarvis joined issue on the motion by asserting that the statute

violated the due process and equal protection provisions of the state and federal

constitutions. The court, on its own motion, invited arguments on whether the

statute violates the separation of powers provisions of the Tennessee

Constitution. Considering all the arguments, the court refused to strike the

defendant’s affirmative defense and held that Tenn. Code Ann. § 55-9-604

violates Article I, Section 8 (due process) and Article II, Section 2 (separation of

powers) of the Tennessee Constitution. We granted an interlocutory appeal to

address these two issues.



                                        II.

                                  DUE PROCESS



             Article I, Section 8 of the Tennessee Constitution contains the

states’s prohibition against taking life, liberty, or property without due process:

                    That no man shall be taken or imprisoned, or
             disseized of his freehold, liberties, or privileges, or
             outlawed, or exiled, or in any manner destroyed or
             deprived of his life, liberty or property, but by the
             judgment of his peers, or the law of the land.



             The “law of the land” phrase is synonymous with the “due process

of law” provision in the Fourteenth Amendment to the United States

Constitution. Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997). Perhaps it would

be more accurate to point out that both constitutions adopt an ancient concept of


                                        -3-
liberty as expressed in Chapter 39 of the Magna Carta: “No freeman shall be

taken, or imprisoned, or disseised, or outlawed, or exiled, or otherwise destroyed;

nor shall we go upon him, nor send upon him, but by the lawful judgment of his

peers or by the law of the land.” See Davidson v. City of New Orleans, 96 U.S.

97 (1877).



             This concept of liberty has dual aspects, one procedural and the

other substantive. We do not believe that the appellee contends that the statute

in question violates procedural due process, probably because he understands that

in the passage of legislation, the legislative process itself provides sufficient

procedural safeguards. Rea v. Matteucci, 121 F.3d 483 (9th Cir. 1997); United

States v. Lulac, 793 F.2d 636 (5th Cir. 1986).



             Substantive due process, on the other hand, prevents the state from

infringing on the rights to life, liberty, or property when the state action does not

promote any legitimate state interest. Vernon v. State, 18 So.2d 388 (Ala. 1944);

Palko v. State of Connecticut, 302 U.S. 319 (1937). See also Newton v. Cox, 878

S.W.2d 105 (Tenn. 1994). The test under substantive due process is whether

there is a reasonable connection between the statute and the promotion of the

safety and welfare of the community. People v. Santiago, 379 N.Y.S.2d 843

(1975). If the statute does not impinge on fundamental rights, the court’s only

interest is whether “the legislature was acting in pursuit of permissible state

objectives and, if so, whether the means adopted were reasonably related to

accomplishment of those objectives.” 16B Am. Jur. 2d Constitutional Law §

912; Newton v. Cox, 878 S.W.2d 105 (Tenn. 1994); Maryhaven Center of Hope

v. Wing, 674 N.Y.S.2d 395 (1998). In this respect the test is the same as that

                                        -4-
applied to a challenge on equal protection grounds. Eastern Enterprises v.

Chater, 110 F.3d 150 (1st Cir. 1997).



               The appellee does not insist that a fundamental right is curtailed by

Tenn. Code Ann. § 55-9-604. Therefore, our only inquiry is whether there is

some rational connection between the statute and a legitimate state interest.



               The mandatory use of automobile seat belts is a question of state

interest. Even if the states were indifferent to it, the interest has been thrust upon

them by the United States Congress. Congress declared that it was in the public

interest for the states to adopt mandatory seat belt use laws. (49 U.S.C.A. §

30127(d)). In 1994 Congress enacted a system of rewards and punishments for

compliance/non-compliance. 23 U.S.C.A. § 153(a)(2) and (h). Tennessee enacted

its own mandatory seat belt law in 1986.1 See 1986 Tenn. Pub. Acts 866 (now

codified in Tenn. Code Ann. § 55-9-603, 604, amended by 1994 Tenn. Pub. Acts

661).



               Prior to the legislative mandate, however, a majority of the states

rejected the seat belt defense, meaning that they did not recognize a common-law

duty to buckle up. Amend v. Bell, 570 P.2d 138 (Wash. 1977). Among the

reasons the Amend court cited why the state might wish to exclude evidence of

the failure to use a seat belt were (1) the defendant should not be able to diminish

the consequences of his negligence by the plaintiff’s failure to anticipate the

defendant’s part in causing the accident itself; and (2) allowing the seat belt


        1
         Tennessee has had a seat belt law since 1963, and the same prohibition against using
the failure to wear a seat belt as a defense has been in place since then. 1963 Pub. Acts 102.
The mandatory requirement came later.

                                             -5-
defense would lead to a veritable battle of experts as to what injuries would have

or have not been avoided had the plaintiff been wearing a seat belt. In Fischer

v. Moore, 517 P.2d 458 (Colo. 1973), the court said that a tortfeasor must accept

the plaintiff as he finds him, and that he may not rely upon the injured party’s

failure to utilize a voluntary protective device to escape all or a portion of the

damages which the plaintiff incurred as a consequence of the defendant’s

negligence.



              We think these are legitimate interests for the state to deal with.

Everyone may not agree with the choice made by the legislature, but the choice

does have a rational connection to the legitimate state interests.



                                       III.

                           SEPARATION OF POWERS



              Article II, Section 1 of the Tennessee Constitution divides the

powers of the government into three departments: the legislative, the executive,

and the judicial. Article II, Section 2 prohibits anyone belonging to one

department from exercising any of the powers properly belonging to either of the

others, except as the constitution itself directs or permits. The trial judge held

that under these constitutional provisions it is the sole domain of the judiciary to

decide what evidence may be excluded from the trier of fact in a comparative

fault case. Therefore, the legislature crossed the line into the judicial domain

when it passed Tenn. Code Ann. § 55-9-604. We disagree.




                                        -6-
             In our discussion in Part II of this opinion we may have already

answered this question. By finding that the statute addressed a legitimate

question of public policy, we have implicitly found that it is a question that falls

into the legislative realm. The legislative power is the authority to make, order,

and repeal law; the judicial power is to interpret and apply the law. State v. King,

973 S.W.2d 586 (Tenn. 1998); State v. Brackett, 869 S.W.2d 936 (Tenn. Cr. App.

1993). It is primarily for the legislature to determine the public policy of this

state. Cary v. Cary, 937 S.W.2d 777, 781 (Tenn. 1996). “When the legislature

. . . has spoken upon a particular subject, its utterance is the public policy of the

State upon that subject, and the courts are without power to read into the

Constitution a restraint of the legislature with respect thereto.” Cavender v.

Hewitt, 239 S.W. 767 at 768 (1922).



             In many instances the legislature has determined that the people of

the state would be better served by restricting the evidence that may be used in

court. See Tenn. Code Ann. § 24-1-203 (the Dead Man’s Statute); Tenn. Code

Ann. § 47-2-202 (the Sales Articles’s Parol Evidence Rule); Tenn. Code Ann. §

47-3-117 (the restriction on proof of other agreements affecting negotiable

instruments). The various testimonial privileges and statutes of frauds found

throughout the code could be placed in the same class. We think these statutes

are the products of legitimate legislative activity.



             The judgment of the court below holding that Tenn. Code Ann. §

55-9-604 violates the due process and separation of powers provisions of our

constitution is reversed. We remand the cause to the Circuit Court of Williamson




                                        -7-
County for further proceedings. Tax the costs on appeal to the appellee, Levi S.

Jarvis.




                                      _______________________________
                                      BEN H. CANTRELL,
                                      PRESIDING JUDGE, M.S.


CONCUR:




____________________________
WILLIAM B. CAIN, JUDGE



____________________________
PATRICIA J. COTTRELL, JUDGE
