Lisa Howe v. Bill Haslam, as Governor of the State of Tennessee, in his official capacity ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 10, 2013 Session
LISA HOWE, ET AL. v. BILL HASLAM, as Governor of the State of
Tennessee, in his official capacity
Direct Appeal from the Chancery Court for Davidson County
No. 11-778-II Carol L. McCoy, Chancellor
No. M2012-01444-COA-R3-CV - Filed June 26, 2013
Plaintiffs filed a complaint asserting a constitutional challenge to HB600. The trial court,
however, dismissed the complaint because it found Plaintiffs lacked standing because they
had failed to allege an injury-in-fact, that their claims were not ripe for review, and that they
were merely seeking an advisory opinion. Plaintiffs timely appealed to this court. However,
we dismiss the appeal for lack of subject matter jurisdiction, and we remand the case to the
trial court for resolution of Plaintiffs’ Motion and Memorandum to Amend Complaint and
for further proceedings, as necessary, consistent with this opinion
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Dismissed
and Remanded
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.
Abby R. Rubenfeld, Nashville; Shannon P. Minter, Amy Whelan, Christopher Stoll, San
Francisco, CA; James E. Hough, Leah Andrea Ramos, Benjamin Smiley, New York, NY,
for the appellants, Lisa Howe, Erik Cole, Erica Gilmore, Mike Jameson, Shirit Pankowsky,
Marisa Richmond, Wesley Roberts, The Tennessee Equality Project, and The Tennessee
Transgender Political Coalition
Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,
Adam B. Futrell, Assistant Attorney General, William J. Marrett, Jr., Senior Counsel,
Nashville, Tennessee, for the appellee, Bill Haslam, as Governor of the State of Tennessee,
is his official capacity
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
On June 13, 2011, Lisa Howe, Erik Cole, Erica Gilmore, Mike Jameson, Shirit
Pankowsky, Marisa Richmond, Wesley Roberts, The Tennessee Equality Project and The
Tennessee Transgender Political Coalition (collectively “Plaintiffs”) filed a Complaint for
a declaratory judgment in the Davidson County Chancery Court challenging the
constitutionality of Senate Bill 632/House Bill 600 (“HB600”), claiming that it violated the
equal protection guarantees of the United States and Tennessee Constitutions.
According to Plaintiffs’ Complaint,1 “immediately after” Belmont University soccer
coach plaintiff Lisa Howe “c[ame] out” as a lesbian to her team, the “mutual decision” was
made to end her employment with the university. In response to the “public furor” following
Ms. Howe’s departure, the Nashville Metropolitan Council (“Metro Council”) proposed an
amendment to a local ordinance which would prevent contractors doing business with the
Nashville Metropolitan Government from discriminating based upon sexual orientation and
gender identity. The ordinance, No. BL2011-838 (the “Nashville ordinance”) which was
introduced on January 18, 2011, provided in part:2
It is declared to be the policy of the metropolitan government that any person
contracting for building and construction projects or furnishing supplies or
services to the metropolitan government, and to which any funds of the
metropolitan government are expended, shall establish equal employment
1
Because this case was resolved, in part, for failure to state a claim, the facts recited in this opinion
are taken from the Complaint, which must be accepted as true at this stage of the proceedings. See Webb v.
Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011).
2
The preamble to the Nashville ordinance further stated:
WHEREAS, on September 9, 2009, the Council of the Metropolitan Government of
Nashville and Davidson County enacted Ordinance No. BL2009-502 to make it unlawful
for the Metropolitan Government to fail or refuse to hire or promote, or to discharge any
individual, because of such individual’s race, religion creed, gender, gender identity, sexual
orientation, national origin, color, age, and/or disability; and
WHEREAS, based on recent events concerning the employment practices of a particular
Metropolitan Government contractor, it is the desire of the Metropolitan Council that the
Metropolitan Procurement Code be revised to prohibit discrimination based upon sexual
orientation and gender identity.
Ordinance No. BL2011-838, available at:
http://www.nashville.gov/mc/ordinances/term_2007_2011/bl2011_838.htm.
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opportunities for all individuals so that no individual shall be excluded from
employment by such person because of race, creed, color, national origin, age,
sex, gender identity, or sexual orientation, and to ensure compliance with all
applicable laws concerning the employment of individuals with disability.
Ordinance No. BL2011-838, available at http://www.nashville.gov/mc/ordinances/term_20
07_2011/bl2011_838.htm. (emphasis added).
According to Plaintiffs’ Complaint, shortly after the Nashville ordinance was
introduced, the Family Action Council of Tennessee, an organization which attempts to
promote traditional family values, held a private meeting on January 12, 2011 3 to establish
a plan to overturn the ordinance. The meeting was attended by, among others, State
Representative Glen Casada and State Representative-elect Jim Gotto, and “just days” after
the meeting, Rep. Casada introduced HB600.
The Metro Council passed the Nashville ordinance on April 8, 2011. Shortly
thereafter, HB600 was passed by the General Assembly, and the bill was signed into law on
May 23, 2011. The new law added Tennessee Code Annotated section 7-51-1802, known
as the “Equal Access to Intrastate Commerce Act[,]” and it provided in relevant part:
(a)(1) No local government shall by ordinance, resolution, or any other means
impose on or make applicable to any person an anti-discrimination practice,
standard, definition, or provision that shall deviate from, modify, supplement,
add to, change, or vary in any manner from:
(A) The definition of “discriminatory practices” in § 4-21-102 4
or deviate from, modify, supplement, add to, change, or vary any
term as used in such definition and also as defined in such
section[.]
....
(2) Any such practice, standard, definition, or provision imposed or made
3
These incongruous dates are taken from Plaintiffs’ Complaint.
4
Section 4-21-102(4) of the Tennessee Human Rights Act defines “discriminatory practices” as “any
direct or indirect act or practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial,
or any other act or practice of differentiation or preference in the treatment of a person or persons because
of race, creed, color, religion, sex, age or national origin[.]”
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applicable to any person by a local government prior to May 23, 2011, shall be
null and void.
The new law also created a definition for the term “sex” as used in the Tennessee Human
Rights Act, Tenn. Code Ann. § 4-21-102(20):
“Sex” means and refers only to the designation of an individual person as male
or female as indicated on the individual’s birth certificate.5
As stated above, in their Complaint, Plaintiffs alleged that HB600 violated equal
protection guarantees. Specifically, they argued that HB600 (1) nullified existing local anti-
discrimination laws and prevented any such future laws; (2) nullified and prevented future
anti-bullying school policies; and (3) by defining “sex,” excluded transgender individuals
from the protection of all sex discrimination laws. Governor Bill Haslam filed his Answer
to Plaintiffs’ Complaint on July 13, 2011. In his Answer, Governor Haslam maintained the
constitutionality of HB600 and, alternatively, he claimed that Plaintiffs lacked standing to
prosecute the claims asserted because they had failed to allege a distinct and palpable injury,
that they had failed to set forth an actual case or controversy, and that they had failed to state
a claim upon which relief could be granted.
Discovery ensued, and a hearing was held in October 2011 to consider the
enforceability of subpoenas issued against non-parties to the case. In a January 25, 2012
Memorandum and Order, however, the trial court found it unnecessary to address the
subpoena issue,6 because it found the case non-justiciable due to a lack of standing, a lack
of ripeness, and Plaintiffs’ pursuit of a merely advisory opinion. Specifically, the trial court
stated, “No party has claimed an injury beyond potential discrimination, and potential loss
of political and litigious opportunities. In addition, there is no suggestion that the LGBT
community has been deprived of any legal right, such that its members would be specifically
restrained by virtue of their identity.” Acknowledging that justiciability had not been argued
at the October 2011 hearing, the trial court invited the parties to file a motion to seek relief
from the order. Plaintiffs did so, but the motion was denied in a June 25, 2012 Order as
follows:
Having heard and considered the arguments of the parties in their brief
5
Tenn. Code Ann. § 68-3-203(d) further provides, “The sex of an individual shall not be changed on
the original certificate of birth as a result of sex change surgery.”
6
However, in its Memorandum and Order, the trial court also stated that it found “the enforcement
of the subpoenas would impose a severe hardship upon the nonparties to the litigation[.]”
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and oral arguments, the Court finds that Defendant’s arguments are well taken
and hereby denies Plaintiffs[’] Motion for Relief. The Court finds no
justiciable question is before it in this matter in that none of the Plaintiff[]s had
standing. None of the . . . Plaintiffs alleged an injury-in-fact cognizable by
law. Nor have any of the Plaintiffs stated a claim that is ripe for review. This
Court cannot and will not issue an advisory opinion. Further, the Plaintiffs fail
to state valid claims under the Equal Protection Clause of the 14 th Amendment
to the U.S. Constitution. HB600 is not analogous to the Amendment issue in
Romer v. Evans, 517 U.S. 620 (1996) and is rationally related to at least one
conceivable interest.
The trial court dismissed Plaintiffs’ Complaint, and they timely sought review by this Court.
II. I SSUES P RESENTED
Appellants present the following issues for review, as summarized:
1. Whether the trial court erred in finding the case non-justiciable; and
2. Whether the trial court erred in dismissing Plaintiffs’ Equal Protection claims for
failure to state a claim.
For the following reasons, we dismiss this appeal.
III. D ISCUSSION
The initial and principal inquiry in this case relates to the justiciability of Plaintiffs’
claims. “The doctrines of justiciability, including standing, ripeness, and the prohibition
against advisory opinions guide the courts in deciding whether a particular action presents
a legal controversy.” Thomas v. Shelby County, ---S.W.3d ----, 2011 WL 3558171, at *3
(Tenn. Ct. App. W.S. Aug. 12, 2011) (citing Norma Faye Pyles Lynch Family Purpose LLC
v. Putnam County, 301 S.W.3d 196, 203 (Tenn. 2009)). These interrelated doctrines have
been previously explained by this Court as follows:
It is well-settled that the role of the court is to adjudicate and settle legal rights,
not to give abstract or advisory opinions. A matter qualifies as a “legal
controversy” when and if there exists a real and disputed issue. Theoretical
and abstract questions do not constitute a legal controversy. Rather, [] there
must be a real dispute “between parties with real and adverse interests.” The
determination of whether a matter is ripe for review involves a determination
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of “‘whether the harm asserted has matured sufficiently to warrant judicial
intervention[.]’” Accordingly, the courts will not address an issue that is not
ripe for review. Although a showing of a present injury is not required in a
declaratory judgment action, a real “case” or “controversy” must nevertheless
exist. A lawsuit brought as a declaratory judgment action may be dismissed
for lack of ripeness.
The doctrine of standing is used by the court to determine whether a
plaintiff is “properly situated to prosecute the action.” In order to establish
standing, a party must demonstrate (1) that it has suffered an injury which is
“distinct and palpable,” (2) a causal connection between that injury and the
conduct complained of, and (3) “that a favorable decision will redress that
injury.” “These elements are indispensable to the plaintiff’s case[.]”
Id. (internal citations omitted).
“The party, and not the merits of the case, is the major focus of a determination of
standing.” Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765, 677-78 (Tenn. Ct. App. 2002)
(citing Metro. Air Research Testing Auth., Inc. v. Metro. Gov’t of Nashville and Davidson
County, 842 S.W.2d 611, 615 (Tenn. Ct. App. 1992)). As indicated above, this cause of
action was instituted by multiple plaintiffs: Lisa Howe, Erik Cole, Erica Gilmore, Mike
Jameson, Shirit Pankowsky, Marisa Richmond, Wesley Roberts, The Tennessee Equality
Project and The Tennessee Transgender Political Coalition. These differently-situated
plaintiffs allege varying injuries resulting from the passage of HB600.
In the Complaint, plaintiff Lisa Howe is identified as “a lesbian and a former soccer
coach at Nashville’s Belmont University, which is a city contractor.” Ms. Howe alleges three
injuries from the passage of HB600: (1) loss of existing legal protections; (2) exposure to a
heightened risk of discrimination; and (3) inability to seek redress at the local level for
discrimination.
Plaintiffs Erik Cole, Erica Gilmore, and Mike Jameson are members of the Metro
Council, and Plaintiffs Gilmore and Jameson co-sponsored the Nashville ordinance. These
plaintiffs claim as injury, that “HB600 severely curtails the[ir] ability . . . to represent and
advocate for all of their constituents, including those who are vulnerable to discrimination
based on their sexual orientation or gender identity and on other bases not covered by state
law, such as veteran status or disability.”
Plaintiff Shirit Pankowsky is identified in the Complaint as a rising senior at Martin
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Luther King, Jr. High School, a public academic magnet school in Davidson County, and the
president and founder of the school’s Gay/Straight Alliance. Plaintiff Pankowsky claims that
HB600, by limiting the term “discriminatory practices” to its definition set forth in the
Tennessee Human Rights–which does not include gender identity or sexual orientation-based
discrimination–voided protections previously guaranteed by the Metropolitan Nashville
Public Schools’ Policy on Bullying and Harassment, which stated:
The Administration of the Metropolitan Nashville Public Schools is committed
to providing all students a learning environment free from bullying or
harassment based on race, color, religion, national origin, handicap/disability,
sexual orientation, ancestry, or gender, including gender identity, express and
appearance.
Metropolitan Nashville Public Schools, Bullying and Harassment, available at
http://www.policy.mnps.org/AssetFactory.aspx?did=57280. She claims that the loss of this
protection “has increased her risk of being bullied, harassed, and discriminated against
because of her actual or perceived sexual orientation.” Additionally, like plaintiff Howe, she
alleges as injury the inability to seek redress at the local level for discrimination.
Plaintiff Dr. Marisa Richmond, a transgender woman, is the president of the
Tennessee Transgender Political Coalition which “advocates for gay and transgender equality
at the state and local level, including advocating for local laws that prohibit discrimination
against transgender people in employment, housing, and other arenas.” In the Complaint,
Plaintiff Richmond alleges four injuries resulting from HB600: (1) loss of existing legal
protections under the Nashville ordinance; (2) inability to seek redress at the local level for
discrimination; (3) exposure to a heightened risk of discrimination; and (4) loss of existing
legal protections against “sex” discrimination towards transgender persons.
Plaintiff Wesley Roberts is a teacher at Hume-Fogg Academic Magnet School, a
Metro public high school, and a co-sponsor of the school’s Gay/Straight Alliance. Plaintiff
Roberts alleges that “[b]y voiding the inclusion of sexual orientation and gender identity in
the Metro public school anti-discrimination policy, HB600 limits [his] ability to protect his
students from harassment and discrimination and ensure that they feel safe and included in
all school activities.” He further claims that HB600 renders futile any efforts to advocate for
policies protecting students against sexual orientation or gender identity-related
discrimination.
Plaintiff Tennessee Equality Protect (“TEP”) “is a statewide non-profit organization
dedicated to promoting and sustaining the equality of gay and transgender persons within the
State of Tennessee through the establishment of fair and equitable laws protecting their rights
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and the elimination of laws that discriminate against them.” According to the Complaint,
TEP’s members include gay and transgender persons, some of whom are employees of
Nashville city contractors and/or parents of students in Davidson County and other local
school districts. Plaintiff Tennessee Transgender Political Coalition (“TTPC”), led by
plaintiff Richmond, is a “Tennessee non-profit organization . . . that educates on and
advocates for transgender-related legislation at the federal, state, and local levels[,]” and
whose members include gay and transgender Tennesseans. TEP and TTPC allege several
injuries: (1) loss of existing legal protections; (2) increased risk of discrimination; (3)
inability to seek redress at the local level for discrimination; (4) regarding its transgender
members, loss of existing legal protections against “sex” discrimination; and (5) impairment
of advocacy efforts.
As stated above, following a hearing concerning subpoenas, the trial court issued a
Memorandum and Order on January 25, 2012, in which it found the case non-justiciable due
to its conclusion that the Plaintiffs lacked standing and that they were seeking an advisory
opinion regarding an unripe claim. The Memorandum and Opinion was not a final judgment;
it invited the parties to file a motion to seek relief within thirty days noting that the matter
would be dismissed absent a subsequent order granting relief from the trial court’s
determination therein.
On March 26, 2012,7 Plaintiffs filed a motion seeking relief from the Memorandum
and Order. Additionally, on June 14, 2012, Plaintiffs filed a Motion and Memorandum to
Amend Complaint to remove as plaintiffs now-former Metro Council members Erik Cole and
Mike Jameson and now-former high school student Shirit Pankowsky, acknowledging that
these individuals no longer had standing in the case. The motion also sought to add as a
plaintiff the Gay/Straight Alliance of Hume-Fogg Academic Magnet High School (“GSA-
HFA”).
Following a hearing on June 15, 2012,8 the trial court entered an Order on June 25,
2012, in which it denied Plaintiffs’ request for relief from the Memorandum and Order. The
court continued to make an across-the-board finding that Plaintiffs lacked standing because
they had failed to allege an injury-in-fact, that their claims were not ripe for review, and that
they were merely seeking an advisory opinion. The court then dismissed the case and
7
An Agreed Order was entered extending the deadline by which Plaintiffs were required to seek relief
from the Memorandum and Order.
8
According to Plaintiffs’ appellate brief, this hearing was not transcribed.
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certified the Order as final pursuant to Tennessee Rule of Civil Procedure 58.9
In their brief to this Court, Plaintiffs state that at the June 15, 2012 hearing on
Plaintiffs’ request for relief from the Memorandum and Order, “Plaintiffs . . . alerted the
court to Plaintiffs’ Motion and Memorandum to Amend Complaint, which they had filed the
previous day[,]” but “[t]he trial court never ruled on that motion.” The June 25, 2012 Order
does not mention Plaintiffs’ request to amend their Complaint to add and remove plaintiffs
based upon changed circumstances, and our review of the record has uncovered no ruling by
the trial court on such request.
Despite Plaintiffs’ acknowledgment that the trial court failed to rule on Plaintiffs’
Motion and Memorandum to Amend Complaint, none of the parties has raised the issue of
whether Plaintiffs have appealed from a final, appealable judgment. We must, however, sua
sponte, review the record to determine whether this Court properly possesses appellate
jurisdiction. Davis v. Shelby County Sheriff’s Dept., No. W2006-00980-COA-R3-CV, 2007
WL 609159, at *3 (Tenn. Ct. App. Feb. 28, 2007) (citing Huntington Nat’l Bank v. Hooker,
840 S.W.2d 916, 922 (Tenn. Ct. App. 1991)).
Rule 3 of the Tennessee Rules of Appellate Procedure provides that “every final
judgment entered by a trial court from which an appeal lies to the Supreme Court or Court
of Appeals is appealable as of right.” (emphasis added). “A final judgment is ‘one that
resolves all the issues, in the case, ‘leaving nothing else for the trial court to do.’’” Watson
v. Bradley County School Bd., 2011 WL 332669, at *6 (Tenn. Ct. App. Jan. 28, 2011)
(quoting In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003)). In the absence of
a final judgment, this Court lacks subject matter jurisdiction. Id.
Here, nothing in the record indicates that the trial court ruled on Plaintiffs’ Motion and
Memorandum to Amend Complaint to add and remove plaintiffs. We decline to hold that
its dismissal of Plaintiffs’ request to amend the Memorandum and Order or its entry of a final
judgment pursuant to Rule 58 should serve as an implicit denial of Plaintiffs’ request to
amend. Because Plaintiffs’ Motion and Memorandum to Amend Complaint–and the claims
asserted by the would-be plaintiffs therein–remains outstanding, we conclude that there is
9
Tennessee Rule of Civil Procedure 58 provides:
Entry of a judgment or an order of final disposition is effective when a judgment containing
one of the following is marked on the face by the clerk as filed for entry:
(1) the signatures of the judge and all parties or counsel, or
(2) the signatures of the judge and one party or counsel with a certificate of counsel that a
copy of the proposed order has been served on all other parties or counsel, or
(3) the signature of the judge and a certificate of the clerk that a copy has been served on all
other parties or counsel. . . .
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no final judgment in this case from which Plaintiffs may appeal. See Farnsworth v. Kenya,
No. 02A01-9707-CV-00145, 1997 WL 685009, at *1 (Tenn. Ct. App. W.S. Nov. 4, 1997)
(dismissing the appeal for lack of a final judgment where the trial court failed to rule on the
plaintiff’s motion to amend his complaint); see also Watson, 2011 WL 332669, at *6-7
(dismissing the appeal for lack of a final judgment where the trial court failed to rule on the
defendants’ request for Rule 11 attorney fees); Davis, 2007 WL 609159, at *3 (dismissing
the appeal for lack of a final judgment where the trial court failed to rule on the plaintiff’s
motion to amend his complaint). Without a final judgment, we must dismiss this appeal for
lack of subject matter jurisdiction and remand the case for resolution of Plaintiffs’ Motion
and Memorandum to Amend Complaint.10 All other issues necessarily are pretermitted.
10
Because this case was dismissed, in major part, due to a lack of standing, we find the trial court’s
apparent failure to consider Plaintiffs’ motion to amend to add and remove plaintiffs particularly troubling.
In their Motion and Memorandum to Amend Complaint, Plaintiffs contended that the modifications sought
would not affect the standing qualifications alleged in the Complaint. Essentially, they argued that former-
council-member plaintiffs Cole and Jameson shared the same interest and rights as current-plaintiff and
current-council-member Gilmore and that would-be-plaintiff GSA-HFA shared the same interest and rights
as would-be-dismissed plaintiff Pankowsky. Respectfully, however, it is the trial court’s province to consider
whether the proposed amendment would affect the standing issue. See, e.g., Davis v. Arnett, 177 S.W.2d 29(Tenn. Ct. App. 1942) (finding that the trial court did not err in allowing the addition of a plaintiff where the
rights of the defendant were not affected, changed, or prejudiced). In any event, even assuming arguendo
that granting Plaintiffs’ request to amend would not affect standing in the case, the converse is not true. For
example, by Plaintiffs’ concession, now-graduated plaintiff Pankowsky no longer possesses standing to assert
claims, yet her would-be-successor, GSA-HFA, has not been added as a plaintiff to, in essence, assume her
claims.
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IV. C ONCLUSION
This appeal is dismissed for lack of subject matter jurisdiction. This case is remanded
to the trial court for resolution of Plaintiffs’ Motion and Memorandum to Amend Complaint
and for further proceedings, as necessary, consistent with this opinion. Costs of this appeal
are taxed to Appellants, Lisa Howe, Erik Cole, Erica Gilmore, Mike Jameson, Shirit
Pankowsky, Marisa Richmond, Wesley Roberts, The Tennessee Equality Project and The
Tennessee Transgender Political Coalition, and their surety, for which execution may issue
if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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