Penny Campbell v. Don Sundquist, Governor of the State of Tennessee - Partially Dissenting

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
PENNY CAMPBELL, ET AL., )
)
Plaintiffs/Appellees, )
) Appeal No.
) 01-A-01-9507-CV-00321
VS. )
) Davidson Circuit
) No. 93C-1547
DON SUNDQUIST, Governor of )
the State of Tennessee, et al., )
)
Defendants/Appellants. ) FILED
Jan. 1, 1996
PARTIAL DISSENT Cecil Crowson, Jr.
Appellate Court Clerk
I respectfully dissent from part I of the majority opinion holding that the
appellants have standing to maintain this action under the Declaratory Judgment Act.
In my opinion this case does not involve present rights that have accrued under
presently existing facts. See Dobbs v. Guenther, 846 S.W.2d 270 (Tenn. App. 1992).
None of the plaintiffs in this action have been prosecuted under the
HPA; none of them allege that they have even been threatened with prosecution.
They do allege that they fear they will be prosecuted for engaging in conduct
prohibited by the Act. I do not think such allegations give the plaintiffs a special
interest in the statute as opposed to the public in general. See Parks v. Alexander,
608 S.W.2d 881 (Tenn. App. 1980). All the complaint expresses is a fear that the
plaintffs will be prosecuted if they choose to violate the Act. Every member of the
public is affected in exactly the same way.
The plaintiffs' reliance on Erwin Billiard Parlor v. Buckner, 156 Tenn.
278, 300 S.W. 565 (1927) is misplaced. In that case the plaintiffs were the owners
and operators of a legal business that would be closed by the operation of the statute
in question. Their interests were different from the interests of the public at large.
They had a right under presently existing facts to challenge the constitutionality of the
statute.
For these reasons the State's motion to dismiss should have been
granted.
II.
On the merits of this appeal, I concur in part III of the majority opinion.
___________________________________
BEN H. CANTRELL, JUDGE