                    IN THE SUPREME COURT OF TENNESSEE
                               AT NASHVILLE
                                     February 6, 2013 Session

     CITY OF MEMPHIS, TENNESSEE ET AL. v. TRE HARGETT ET AL.

            Appeal by Permission from the Court of Appeals, Middle Section
                        Chancery Court for Davidson County
                    No. 12-1269-II   Carol L. McCoy, Chancellor


                  No. M2012-02141-SC-R11-CV - Filed October 17, 2013




W ILLIAM C. K OCH JR, J., concurring.

       In 2011, the Tennessee General Assembly amended Tennessee’s voting procedures
to provide for the use of photographic identification in elections.1 The General Assembly
amended these procedures in 20122 and again in 2013.3 I concur with the Court’s decision
to uphold the constitutionality of these procedures as they stood in 2012. I write separately,
however, to address the threshold matter of the standard of review that should be used to
address the constitutionality of these amendments.

                                                    I.

       Throughout this litigation, the plaintiffs have insisted that the courts should employ
the equal protection “strict scrutiny” standard of review to analyze the constitutionality of the
photographic identification requirements in Tenn. Code Ann. § 2-7-112. The State has
acquiesced in this standard. Based on this “concession,” the Court has decided that it “will


        1
         Act of May 20, 2011, ch. 323, 2011 Tenn. Pub. Acts 790 (codified at Tenn. Code Ann. § 2-7-112
(Supp. 2011)); Act of May 21, 2011, ch. 386, 2011 Tenn. Pub. Acts 960 (codified at Tenn. Code Ann. § 2-7-
112 (Supp. 2011)).
        2
        Act of Feb. 23, 2012, ch. 575, 2012 Tenn. Pub. Acts 364 (codified in part at Tenn. Code Ann. § 2-7-
112 (Supp. 2012)); Act of Apr. 23, 2012, ch. 938, § 2, 2012 Tenn. Pub. Acts 1395, 1395 (codified at Tenn.
Code Ann. § 2-7-112 (Supp. 2012)).
        3
        Act of Apr. 4, 2013, ch. 178, 2013 Tenn. Pub. Acts ___ (codified at Tenn. Code Ann. § 2-7-112
(Supp. 2013)); Act of Apr. 1, 2013, ch. 231, § 9, 2013 Tenn. Pub. Acts ___, ___ (codified at Tenn. Code
Ann. § 2-7-112 (Supp. 2013)).
assume, rather than decide, that strict scrutiny applies.” Because other challenges to
Tennessee’s voting procedures will surely arise in the future, the question of the proper
standard of review should be settled now.

       The standards of review are “the metaphorical hinges on the door to the realm of
appellate review.”4 Even though they are treated by many lawyers and judges as routine
matters, the choice of the correct standard of review can be “influential, if not dispositive.”
Schwimmer v. Sony Corp. of Am., 459 U.S. 1007, 1009 (1982) (White, J., dissenting from the
denial of certiorari).5 Because of their importance, the choice of the applicable standard of
review should be the starting point for the resolution of the issues on appeal.6

        Standards of review have been an integral part of American jurisprudence since the
earliest days of our country.7 They are embodied in constitutions, statutes, court rules, and
judicial decisions.8 These standards serve the important function of limiting appellate courts
to their proper role when passing on the conduct of other decision-makers. Evans v. Eaton
Corp. Long Term Disability Plan, 514 F.3d 315, 320 (4th Cir. 2008); Timothy J. Storm, The
Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate


        4
        Todd J. Bruno, Say What?? Confusion in the Courts over What Is the Proper Standard of Review
for Hearsay Rulings, 18 Suffolk J. Trial & App. Advoc. 1, 6 (2013) (“Bruno”).
        5
           See also Bruno, 18 Suffolk J. Trial & App. Advoc. at 6 (stating that standards of review are “more
often than not, outcome-determinative”); 1 Steven A. Childress & Martha S. Davis, Federal Standards of
Review § 1.02, at 1-16 (4th ed. 2010) (“Childress & Davis”) (pointing out that “the proper standard of review
. . . often turns out to be a vital issue on appeal”); Amanda Peters, The Meaning, Measure, and Misuse of
Standards of Review, 13 Lewis & Clark L. Rev. 233, 241 (2009) (quoting Michael D. Zimmerman’s
observation that “[s]tandards of review doom any number of appeals from the start”); Barry Sullivan,
Standards of Review, in Appellate Advocacy 59, 59 (Peter J. Carre et al., eds., 1981) (noting that “a
thoughtful consideration of the appropriate standard of review will often determine the outcome of an
appeal”).
        6
           Timothy P. O’Neill, Standards of Review in Illinois Criminal Cases: The Need for Major Reform,
17 S. Ill. U. L.J. 51, 51 (1992). Major B. Harding, the former Chief Justice of the Florida Supreme Court,
has observed that “[a]fter determining jurisdiction, the next important issue to be resolved in an appellate
matter is the standard of review. Making this determination at the outset helps in guiding attorneys and
judges in the appropriate resolution of the case.” Raymond T. Elligett, Jr. & John M. Scheb, Appellate
Standards of Review - How Important Are They?, Fla. B.J., Feb. 1996, at 33.
        7
        Martha S. Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J. App.
Proc. & Process 47, 47 (2000).
        8
         Richard H. W. Maloy, “Standards of Review” – Just a Tip of the Icicle, 77 U. Det. Mercy L. Rev.
603, 609 (2000) (“Maloy”).

                                                    -2-
Court, 34 S. Ill. U. L.J. 73, 78 (2009).9 They do so by “defin[ing] the level of examination
the court may apply, including the degree of deference it will accord to the [lower] court’s
findings of fact and conclusions of law.” Hodge v. Craig, 382 S.W.3d 325, 333 n.2 (Tenn.
2012) (quoting 19 James Wm. Moore et al., Moore’s Federal Practice ¶ 206.01 (3d ed.
2009)).10

       The question of the application of the proper standard of review is a question of law.
Warehime v. Warehime, 860 A.2d 41, 46 n.5 (Pa. 2004). Accordingly, the reviewing court
must ultimately decide what standard of review will be used. Worth v. Tyer, 276 F.3d 249,
262 n.4 (7th Cir. 2001); K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.
1996); Citizens Awareness Network v. Montana Bd. of Envtl. Review, 2010 MT 10, ¶ 14, 227
P.3d 583, 588.11

       Parties cannot choose or control the standard or standards of review applicable to their
case. United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992); Town of Chandler v.
Indiana-American Water Co., 892 N.E.2d 1264, 1268 (Ind. Ct. App. 2008). Nor can they
stipulate or create the applicable standard of review. Barnett v. Hicks, 829 P.2d 1087, 1093
(Wash. 1992). In addition, a party cannot waive the application of the correct standard of
review by failing to argue it. Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008); see also
Worth v. Tyer, 276 F.3d at 262 n.4; Vizcaino v. Microsoft Corp., 120 F.3d 1006, 1022 n.4
(9th Cir. 1997) (en banc) (O’Scannlain, J., concurring in part and dissenting in part); Izzarelli
v. Rexene Prods. Co., 24 F.3d 1506, 1519 n.24 (5th Cir. 1994); Borough of Jenkintown v.
Board of Comm’rs of Abington Twp., 858 A.2d 136, 138 (Pa. Commw. Ct. 2004). Appellate
courts have the authority to identify and apply the correct legal standard whether argued by
the parties or not. Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); Thompson v.
Runnels, 705 F.3d 1089, 1098 (9th Cir. 2013).

       Although Tenn. R. App. P. 27(a)(7)(B) envisions that the parties will identify for the
appellate court the standard or standards of review they propose to apply to the issues being


        9
         The Michigan Supreme Court has noted that “[a]bsent a comprehensible standard of review, judicial
review cannot be undertaken in pursuit of the rule of law, but only in pursuit of the personal preferences of
individual judges.” Warda v. City Council of the City of Flushing, 696 N.W.2d 671, 680 (Mich. 2005).
        10
           See also Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 8, 107 P.3d 595, 600 (noting that “[a]n appellate
court’s standard of review is not mere ritualistic legal liturgy. It defines the permissible sweep of critical
testing to be undertaken by a reviewing court.”); 1 Childress & Davis § 1.01, at 1-2 (stating that “a standard
of review prescribes the degree of deference given by the reviewing court to the actions or decisions under
review”); 1 Childress & Davis § 1.03.
        11
             See also Maloy, 77 U. Det. Mercy L. Rev. at 610.

                                                     -3-
presented, a party’s failure to propose a standard of review or to propose the correct standard
of review does not prevent the appellate court from applying the correct standard of review.
Accordingly, it is the appellate court’s “duty . . . to plainly identify the appropriate standard
of review and then to clearly employ that standard when reviewing the prior decision.”
Stevens v. Employer-Teamsters Joint Council No. 84 Pension Fund, 979 F.2d 444, 458 (6th
Cir. 1992).

                                                    II.

        If the plaintiffs were asserting their rights under the United States Constitution, the
choice of the correct standard of review would have been simple because the United States
Supreme Court has already authoritatively identified it. In a recent case involving the use of
photographic identification in state elections, the Court held, based on the facts of the case,
that the challenged photographic identification requirement does not “impose[] ‘excessively
burdensome requirements’ on any class of voters.” Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181, 202 (2008) (quoting Storer v. Brown, 415 U.S. 724, 738 (1974)). In reaching
this conclusion, the Court employed a “balancing approach” in which it “weigh[ed] the
asserted injury to the right to vote against the ‘precise interests put forward by the State as
justifications for the burden imposed by the rule.’” Crawford v. Marion Cnty. Election Bd.,
553 U.S. at 190 (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)).12

        Sensing the futility of a challenge to Tenn. Code Ann. § 2-7-112 based on the United
States Constitution, the plaintiffs in this case limited their claim to their right to vote under
the Constitution of Tennessee. Accordingly, we are at a constitutional crossroad. Were we
to find that the Constitution of Tennessee’s protection of the right to vote is similar to the
United States Constitution’s protection of the right to vote, we could adopt the standard of
review and analysis employed by the United States Supreme Court in Crawford v. Marion
County Election Board. If, however, we were to find that the Constitution of Tennessee
provides different or broader protection of the right to vote than the United States
Constitution, then it would be our responsibility to fashion a standard of review that is
consistent with the Constitution of Tennessee. The parties did not address these matters in
their briefs or oral arguments. Fortunately, this Court has previously addressed similar
issues.




        12
         This case does not present an occasion to analyze the standard of review used by the United States
Supreme Court in Crawford. However, a more detailed analysis can be found in 4 Ronald D. Rotunda &
John E. Nowak, Treatise on Constitutional Law § 18.31(a) (5th ed. 2013) (“Rotunda & Nowak”); see also
3 Rotunda & Nowak § 18.3(a) (5th ed. 2012).

                                                   -4-
       There can be little debate that the right to vote protected by Article I, Section 5 is a
fundamental right. May v. Carlton, 245 S.W.3d 340, 346 (Tenn. 2008); Bemis Pentecostal
Church v. State, 731 S.W.2d 897, 901 (Tenn. 1987). However, this right is not absolute. It
has long been accepted that states have a compelling interest in securing the right to vote
freely and effectively. Burson v. Freeman, 504 U.S. 191, 208 (1992), rev’g Freeman v.
Burson, 802 S.W.2d 210 (Tenn. 1990). As the United States Supreme Court has noted,
“[p]reservation of the ‘purity of the ballot box’ is a formidable-sounding state interest.”
Dunn v. Blumstein, 405 U.S. 330, 345 (1972).

        In 1869, this Court held that “[t]he duty of the Legislature is, to protect both the public
interest and the private right in the franchise, and for this purpose, it may provide reasonable
regulations for the exercise of the right . . . and adopt precautions against frauds and
violence.” State v. Staten, 46 Tenn. (6 Cold.) 233, 255-56 (1869) (Andrews, J.). The drafters
of the 1870 Constitution of Tennessee incorporated this holding in Article IV, Section 1,
which states that “[t]he General Assembly shall have power to enact . . . laws to secure the
freedom of elections and the purity of the ballot box.” This Court has observed that Article
I, Section 5 and Article IV, Section 1 were adopted “in a spirit of conservatism appropriate
to the times” and that the purpose of these provisions was “to preserve . . . a republican form
of government for the State.” Cook v. State, 90 Tenn. 407, 410, 16 S.W. 471, 472 (1891).

        Article I, Section 5 and Article IV, Section 1 should be read together. Earnest v.
Greene Cnty., 138 Tenn. 442, 445, 198 S.W. 417, 417 (1917). They must also be construed
in light of this Court’s holding that the General Assembly

               may employ every legislative means, however vigorous, to
               accomplish the ends contemplated by the framers of the
               Constitutions. The Legislatures are, as a rule, the judges of the
               means13 to be adopted, and their necessity. The power to
               regulate and reform is theirs. They are presumed to know the
               condition and wants of the State.

Cook v. State, 90 Tenn. at 413-14, 16 S.W. at 473, as well as its holding that “[i]t is
fundamental and axiomatic that a State legislature is the reservoir of all the reserved power
of the people, except as it may be limited and circumscribed by the state and federal
Constitutions.” Ledgerwood v. Pitts, 122 Tenn. 570, 588, 125 S.W. 1036, 1039 (1910).




       13
         The Tennessee Reporter uses the word “means,” but the Southwestern Reporter uses the word
“measures.”

                                                -5-
        In 1891, this Court, striking what it believed to be the proper balance between Article
I, Section 5 and Article IV, Section 1, articulated a standard for reviewing constitutional
challenges to statutes regulating the manner in which elections are conducted. The case
involved a challenge to a statute requiring voters to mark their ballot to signify the candidate
for whom they had voted. The Court stated:

              The Constitution surrounded the right of suffrage with some
              inconveniences, and authorized the Legislature to attach more.
              In the exercise of its power, the Legislature must be reasonable
              and just, not imposing impossible or oppressive conditions, else
              its legislation will be void.

Cook v. State, 90 Tenn. at 412-13, 16 S.W. at 473. This standard bears a strong resemblance
to the United States Supreme Court’s “excessively burdensome requirements” standard in
Crawford.

        The standard of review contained in Cook v. State has remained unaltered for over one
hundred twenty years. During this time, the power of the General Assembly to secure the
“purity of the ballot box” has not been diminished, and the right to vote is neither more nor
less fundamental today than it was in 1891. Accordingly, in the absence of argument from
either party regarding the replacement of the Cook standard with another standard, I would
review the constitutionality of the 2011 and 2012 amendments to Tenn. Code Ann. § 2-7-112
using the “impossible or oppressive conditions” standard in Cook v. State. Based on my
review of the record, I would find that the plaintiffs have failed to present evidence
demonstrating that requiring the use of photographic identification in the voting process in
the manner authorized by Tenn. Code Ann. § 2-7-112 amounts to an impossible or oppressive
condition on the ability of an otherwise qualified voter to cast his or her vote in elections
conducted in Tennessee.




                                                    ________________________________
                                                    WILLIAM C. KOCH JR., JUSTICE




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