                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                      August 18, 2016 Session

           JOSEPH H. JOHNSTON v. TENNESSEE STATE ELECTION
                         COMMISSION, ET AL.

                   Appeal from the Chancery Court for Davidson County
                        No. 15890II Carol L. McCoy, Chancellor
                         ___________________________________

                 No. M2015-01975-COA-R3-CV – Filed September 27, 2016
                        ___________________________________


This appeal requires us to consider whether the plaintiff can bring a declaratory judgment
action against the Tennessee State Election Commission in chancery court. We have
reviewed the relevant authorities and have determined the plaintiff is not entitled to a
declaratory judgment under the Uniform Administrative Procedures Act or the Declaratory
Judgment Act.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated

ANDY D. BENNETT, J., delivered the opinion of the court, in which RICHARD H. DINKINS and
W. NEAL MCBRAYER, JJ., joined.

Joseph H. Johnston, Nashville, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Blumstein, Solicitor General;
and Janet M. Kleinfelter, Deputy Attorney General; for the appellee, Tennessee State
Election Commission.

                                               OPINION

       This is the second appeal involving Joseph Johnston‘s grievance with Tenn. Code
Ann. § 2-7-133(i). The impetus of the first appeal occurred in 2011, when Mr. Johnston filed
suit against, inter alia, the Davidson County Election Commission (―DCEC‖) and the
Tennessee Attorney General, challenging the constitutionality of Tenn. Code Ann. § 2-7-
133(i),1 which sets forth the requirements for any person attempting to be elected by a write-

       1
           Tennessee Code Annotated section 2-7-113(i) states as follows:
in ballot. In the August 2011 election, Mr. Johnston voted for himself as a write-in candidate
for councilperson in Davidson County‘s 18th District, but his vote was not counted because
he had not submitted a notice to the DCEC in accordance with Tenn. Code Ann. § 2-7-133(i).
The trial court dismissed Mr. Johnston‘s claims for lack of subject matter jurisdiction and for
failure to state a claim. Mr. Johnston appealed, and in Johnston v. Davidson County Election
Commission, No. M2011-02740-COA-R3-CV, 2014 WL 1266343 (Tenn. Ct. App. Mar. 26,
2014) (―Johnston I‖), this Court affirmed the trial court, concluding that the statute is
constitutional as written and as applied.

       In May 2015, Mr. Johnston filed notice with the DCEC, pursuant to Tenn. Code Ann.
§ 2-7-133(i), that he was a write-in candidate for the office of councilperson-at-large in the
election to be held on August 6, 2015. On May 18, 2015, Mr. Johnston filed a Petition for
Declaratory Order with the Tennessee State Election Commission (―TSEC‖) requesting the
TSEC to require the ―Davidson County Administrator of Elections to comply with all
statutory requirements relating to educating the public about Tenn. Code Ann. § 2-7-133(i)
and post instructions at all polling places regarding its limitations on voters‘ right to cast
informed votes in the August 6, 2015 election and all future elections‖ and to ―post the
names of all ‗qualified Write-in Candidates,‘ including [Mr. Johnston] at each polling place
where such elective offices are to be voted on.‖ On July 13, 2015, the TSEC entered an order
denying Mr. Johnston‘s request, stating as follows:

               Tenn. Code Ann. § 4-5-223 provides that ―any affected person may
       petition an agency for a declaratory order as to the validity or applicability of a
       statute, rule or order within the primary jurisdiction of the agency.‖ Mr.
       Johnston‘s Petition does not seek an order with regard to the validity or
       applicability of a statute; rather it seeks an order that would impose additional
       obligations on the Davidson County Administrator of Elections above what
       present law requires. Because Mr. Johnston‘s requested relief is akin to
       injunctive relief, and not an order regarding the validity or applicability of a


       Any person attempting to be elected by write-in ballots shall complete a notice requesting
       such person‘s ballots be counted in each county of the district no later than twelve o‘clock
       (12:00) noon, prevailing time, fifty (50) days before the general election. Such person shall
       only have votes counted in counties where such notice was completed and timely filed. The
       notice shall be on a form prescribed by the coordinator of elections and shall not require
       signatures of any person other than the write-in candidate requesting ballots be counted. The
       coordinator of elections shall distribute such form to the county election commissions. Upon
       timely receiving the notice required by this subsection (i), the county election commission
       shall promptly inform the state coordinator of elections, the registry of election finance, as
       well as all other candidates participating in the affected election. A write-in candidate may
       withdraw the notice by filing a letter of withdrawal in the same manner as the original notice
       was filed no later than the fifth day before the election.

                                                   -2-
       statute, the State Election Commission is completely without authority and
       jurisdiction to grant it.
               Further, the State Election Commission does not have any duty—
       statutory or otherwise—to perform the functions requested by Mr. Johnston‘s
       Petition. The State Election Commission does not administer election laws;
       rather, it appoints individuals to serve on the Davidson County Election
       Commission.

        The present appeal arises from a Petition for Declaratory Judgment Mr. Johnston filed
on July 23, 2015, pursuant to Tenn. Code Ann. § 4-5-225(a), in the Chancery Court of
Davidson County regarding ―the applicability of Tenn. Code Ann. § 2-7-133(i) to write-in
candidates and the duty of the [TSEC] to educate the voting public about the strict limitations
imposed on the right to cast informed votes for write-in candidates who are qualified or not
qualified under the terms of this statute . . . .‖ Mr. Johnston requested a declaratory judgment
be entered ―which clarifies the duty of the [TSEC] to publish instructions applying the
restrictions of Tenn. Code Ann. § 2-7-133(i).‖ On July 31, 2015, Mr. Johnston filed notice of
his write-in candidacy for the office of metro tax assessor in the March 2016 election.

        On August 20, 2015, TSEC filed a motion to dismiss Mr. Johnston‘s petition, arguing
it was barred by the doctrine of res judicata because Mr. Johnston‘s claims had already been
decided by this Court in Johnston I. On August 31, 2015, Mr. Johnston filed an amended
complaint asserting the following ―alternate issue‖: ―Whether the [TSEC] has the authority
and jurisdiction to interpret and administer the application of Tenn. Code Ann. § 2-7-133(i)
to write-in candidates running for election office in Tennessee.‖ Mr. Johnston also filed a
response in opposition to TSEC‘s motion to dismiss asserting that the doctrine of res judicata
does not apply because the claims he raised were based on new facts which did not exist at
the time of his first lawsuit.

        The chancery court held a hearing on September 4, 2015 and entered an order on
September 22, 2015 dismissing Mr. Johnston‘s complaint and amended complaint on the
ground that they were barred by the doctrine of res judicata. Specifically, the court found
that 1) Johnston I was rendered by a court of competent jurisdiction; 2) TSEC and DCEC are
in privity for purposes of res judicata; 3) the claims arise out of the same ―transaction or
occurrence‖; and 4) the underlying judgment was final and on the merits. Mr. Johnston
appeals.

                                          ANALYSIS

        As an initial matter, we must determine whether the chancery court had subject matter
jurisdiction to hear Mr. Johnston‘s suit for declaratory judgment. See TENN. R. APP. P. 13(b)
(providing that an appellate court ―shall‖ consider whether the trial court had subject matter
jurisdiction ―whether or not presented for review‖); Johnson v. Hopkins, 432 S.W.3d 840,
                                              -3-
844 (Tenn. 2013) (stating that ―subject matter jurisdiction is a threshold inquiry, which may
be raised at any time in any court‖); Toms v. Toms, 98 S.W.3d 140, 143 (Tenn. 2003)
(―Appellate courts must address the issue of subject matter jurisdiction even if the issue is not
raised in the trial court.‖). The concept of subject matter jurisdiction involves a court‘s
power to adjudicate a particular type of case or controversy. Osborn v. Marr, 127 S.W.3d
737, 739 (Tenn. 2004). ―Subject matter jurisdiction is conferred by statute or the Tennessee
Constitution; the parties cannot confer it by appearance, plea, consent, silence, or waiver.‖
Johnson, 432 S.W.3d at 843-44 (citing In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn.
2012)). ―The lack of subject matter jurisdiction is so fundamental that it requires dismissal
whenever it is raised and demonstrated.‖ Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d
477, 480 (Tenn. Ct. App. 1999) (citing TENN. R. CIV. P. 12.08).

        Mr. Johnston brought his complaint for declaratory judgment pursuant to the Uniform
Administrative Procedures Act (―UAPA‖), Tenn. Code Ann. § 4-5-225(a), which authorizes
the filing of a suit for declaratory judgment in the chancery court of Davidson County to
determine the ―legal validity or applicability of a statute, rule or order of an agency to
specified circumstances.‖ However, Tenn. Code Ann. § 4-5-106(c) expressly states that
Tenn. Code Ann. § 4-5-225 ―shall not apply to . . . the state election commission . . . .‖
Therefore, the UAPA expressly excludes the TSEC from the declaratory judgment
provisions, and Mr. Johnston was not entitled to the declaratory relief he requested pursuant
to Tenn. Code Ann. § 4-5-225(a).2

       Having found that Mr. Johnston cannot proceed under the UAPA, we now consider
whether he can proceed under the Declaratory Judgment Act, Tenn. Code Ann. § 29-14-101–
113. The appellee argues that the rule of sovereign immunity bars Mr. Johnston‘s suit for
declaratory judgment under the Declaratory Judgment Act. We agree.

       The doctrine of sovereign immunity is enshrined in the Tennessee Constitution and
has been codified by our Legislature in the Tennessee Code. Article 1, section 17 of the
Tennessee Constitution states, in part, ―[s]uits may be brought against the State in such
manner and in such courts as the Legislature may by law direct.‖ Tennessee Code Annotated
section 20-13-102(a) provides:

        No court in the state shall have any power, jurisdiction or authority to entertain
        any suit against the state, or against any officer of the state acting by authority
        of the state, with a view to reach the state, its treasury, funds or property, and
        all such suits shall be dismissed as to the state or such officers, on motion, plea
        or demurrer of the law officer of the state, or counsel employed for the state.

        2
          Mr. Johnston filed a Petition for Declaratory Order before the TSEC pursuant to Tenn. Code Ann. §
4-5-223. Tennessee Code Annotated section 4-5-106(c) also expressly excludes the TSEC from the
declaratory order provisions of Tenn. Code Ann. § 4-5-223.
                                                   -4-
Pursuant to these constitutional and statutory provisions, ―suits cannot be brought against the
State unless explicitly authorized by statute.” Colonial Pipeline Co. v. Morgan, 263 S.W.3d
827, 849 (Tenn. 2008); see also Greenhill v. Carpenter, 718 S.W.2d 268, 270 (Tenn. Ct.
App. 1986) (―[N]o suit against the State may be sustained absent express authorization from
the Legislature.‖).

        In Colonial Pipeline Company v. Morgan, 263 S.W.3d at 827 (Tenn. 2008), the
Tennessee Supreme Court specifically addressed the interplay between the doctrine of
sovereign immunity and the Declaratory Judgment Act in the context of subject matter
jurisdiction. The Court held that the Declaratory Judgment Act grants a court subject matter
jurisdiction to prevent the enforcement of an unconstitutional statute and to ―issue
declaratory or injunctive relief against the Defendants in their individual capacity, so long as
the court’s judgment is tailored to prevent the implementation of unconstitutional legislation
and does not ‗reach the state, its treasury, funds, or property.‘‖ Colonial Pipeline Co., 263
S.W.3d at 853-54 (quoting Tenn. Code Ann. § 20-13-102) (emphasis added). Thus, an
allegation pertaining to an unconstitutional statute is a threshold requirement to remove or
waive immunity, and Mr. Johnston has not made such an allegation in this suit.3 Here, Mr.
Johnston‘s complaint and amended complaint sought a declaration as to the TSEC‘s duty to
educate voters about the provisions of Tenn. Code Ann. § 2-7-133(i); there is no request for a
declaration of unconstitutionality. Accordingly, the chancery court lacked jurisdiction to hear
his suit for declaratory judgment under the Declaratory Judgment Act.

                                                CONCLUSION

       The chancery court lacked subject matter jurisdiction to hear Mr. Johnston‘s petition;
therefore, the matter is vacated and the trial court is instructed to dismiss Mr. Johnston‘s
complaint. Costs of the appeal are assessed against the appellant, Mr. Johnston.




                                                                         _________________________
                                                                         ANDY D. BENNETT, JUDGE




        3
            In Johnston I, this Court considered Mr. Johnston‘s constitutional challenge to Tenn. Code Ann. § 2-
7-133(i).
                                                      -5-
