Can a new Tennessee General Assembly revisit an election contest decided by the previous General Assembly, including to award attorney's fees?

Subject

Opinion No. 12-30, House Election Contest, March 5, 2012

Plain-English summary

This opinion came out of an actual case that bounced through the Tennessee courts. In the November 2008 election, Donna Rowland defeated Rishi Saxena by 11,650 votes for the Tennessee House seat in District 34. Saxena filed an election contest claiming Rowland was not a qualified voter of the district because she lived elsewhere. The House of the 106th General Assembly created an Ad Hoc Committee under House Resolution 41 to hear the contest. After a hearing in April 2009, the Committee unanimously recommended dismissing Saxena's complaint, and the full House adopted the recommendation 97-0. The Committee found Saxena's claim "frivolous in nature" but did not award fees, and did not reserve the fees issue.

Rowland later sued Saxena in chancery court for attorney's fees under Tenn. Code Ann. § 2-17-115. Both the chancery court and the Court of Appeals threw the case out, ruling that the statute did not create a free-standing cause of action in court and that election contest jurisdiction belonged exclusively to the House under Article II, Section 11. By 2012, Rowland had not sought reelection in 2010 and her term had expired; the 106th General Assembly was also gone.

Representative Steve McManus then asked: could the 107th General Assembly reopen that contest, even just to award fees? The AG said no. Article II, Section 11 vests each House of each General Assembly with sole authority to judge the elections of its members, and that authority is operative "when assembled." The current General Assembly has no power over the prior General Assembly's election contests.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

Article II, Section 11

The Tennessee Constitution at art. II, § 11 says: "The Senate and House of Representatives, when assembled, shall each choose a speaker and its other officers; be judges of the qualifications and election of its members; and sit upon its own adjournment from day to day."

That clause, like the federal analog in U.S. Const. art. I, § 5, makes each chamber the judge of the qualifications and elections of its own members. The Tennessee Supreme Court read it as vesting sole and exclusive authority in each House and Senate "after each legislative body is constituted as of the day of the November general election." State ex rel. Ezzell v. Shumate, 172 Tenn. 451, 459-60, 113 S.W.2d 381, 384-85 (1938); Gates v. Long, 172 Tenn. 471, 474, 113 S.W.2d 388, 389 (1938); Comer v. Ashe, 514 S.W.2d 730, 741 (Tenn. 1974).

The "when assembled" hook

The AG focused on the phrase "when assembled." In Comer v. Ashe, the Supreme Court said the article "shows on its face that it is operative only when the General Assembly is in session." That meant a House's judging authority attached to the particular House that was sitting. The 106th General Assembly's House could judge contests involving its members. The 107th General Assembly's House could not reach back and judge a contest involving someone who was not even a member of the 107th.

Statutory implementation

Tenn. Code Ann. § 2-17-102 implemented the constitutional rule for state legislative contests: "contests for the office of Senator in the General Assembly are decided by the Senate, and contests for the office of Representative in the General Assembly are decided in the House of Representatives." Section 2-17-115 was the fees provision that Rowland tried, and failed, to use as an independent cause of action in chancery court.

The Rowland v. Saxena litigation

The 2011 Court of Appeals decision in Rowland v. Saxena held two things. First, Tenn. Code Ann. § 2-17-115 did not create a separate chancery-court cause of action to recover fees in a legislative election contest. Second, sole jurisdiction over the election contest lay with the General Assembly. The court did note, in dicta, that § 2-17-115 "constitutes the statutory basis upon which the tribunal makes such an award" — meaning, if the House had wanted to award fees, the statute supplied the basis, but the chancery court could not do so.

The committee in 2009 had reportedly been advised it lacked authority to award statutory attorney fees, and so had not done so. By 2012, with Rowland out of office and the relevant General Assembly disbanded, no remaining body had jurisdiction to revisit the question.

Common questions

Why does each General Assembly get sole authority? Isn't that strange?

The "judge of its own elections" rule traces to the federal Constitution and is rooted in separation of powers. The framers thought a legislature should not have to seek judicial confirmation that its own members were properly elected. Tennessee inherited this approach. The downside is exactly what this opinion illustrates: if a House does not resolve a fee question while the General Assembly is sitting, there is no later forum for it. The matter dies with the General Assembly.

Couldn't Rowland just sue in court for the fees?

She tried. The chancery court and Court of Appeals both said no, on grounds that Tenn. Code Ann. § 2-17-115 was not a standalone cause of action and that election contest jurisdiction belonged exclusively to the legislative chamber. Courts cannot insert themselves into a constitutional commitment to the legislative branch.

What if the prior committee had reserved the fees issue?

The opinion doesn't say a reservation would have changed the outcome. It noted that the 2009 committee did not award fees, did not recommend an award, and did not reserve the issue. Even if a House committee tried to reserve an issue for the next General Assembly, that would arguably exceed the constitutional limit: the House's authority is tied to its own sitting, not transferable.

Does the same rule apply to Senate election contests?

Yes. Article II, Section 11 applies to both chambers. The opinion focused on the House because the case at issue was a House contest, but the same analysis applies to a Senate seat.

What about a contest decided after the new General Assembly is seated?

The opinion did not address that scenario directly. But the consistent rule from Ezzell, Gates, and Comer is that authority attaches when a chamber is "assembled" as of the November general election. If a contest is still pending when a new General Assembly seats itself, the new chamber would be the body with jurisdiction, because the contest concerns its members. The wrinkle in Rowland v. Saxena was that the contest had been fully resolved by the 106th General Assembly, and the question was whether the 107th could reopen it. The answer was no.

Citations

• Tenn. Const. art. II, § 11 (each House judges qualifications and elections of its members "when assembled")
• Tenn. Code Ann. § 2-17-102 (state legislative contests decided by respective chamber)
• Tenn. Code Ann. § 2-17-115 (fees provision)
• State ex rel. Ezzell v. Shumate, 172 Tenn. 451, 113 S.W.2d 381 (1938)
• Gates v. Long, 172 Tenn. 471, 113 S.W.2d 388 (1938)
• Comer v. Ashe, 514 S.W.2d 730 (Tenn. 1974)
• Rowland v. Saxena, No. M2010-00640-COA-R3-CV, 2011 WL 345827 (Tenn. Ct. App. Jan. 31, 2011)
• H.R. 0041, 106th Gen. Assembly (Tenn. 2009)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-030.pdf

Original opinion text

March 5, 2012
Opinion No. 12-30
House Election Contest

QUESTION

If an election contest is decided in a previous General Assembly, may a subsequent General Assembly renew or reexamine the election contest, including for the purpose of considering a request for an award of costs and attorney's fees?

OPINION

In accordance with the plain language of Article II, § 11, of the Tennessee Constitution, the power to judge the qualification and elections of members of a particular General Assembly is vested solely in each House of that General Assembly. Consequently, a succeeding General Assembly has no authority to judge the qualifications and election of the members of a prior General Assembly and, therefore, would have no authority to renew or reexamine an election contest arising out of the election of a member of a prior General Assembly.

ANALYSIS

Per the opinion request, in the November 2008 General Election, Dr. Rishi Saxena and Representative Donna Rowland were candidates for the office of Tennessee House of Representatives for the 34th District. Representative Rowland defeated Dr. Saxena by a margin of 11,650 votes, and the election results were subsequently certified. Dr. Saxena timely filed an election contest asserting that Representative Rowland was not a qualified voter of District 34 because she lived in another district. In light of the election contest, Representative Rowland was provisionally seated as Representative for the 34th House District on January 13, 2009.

Pursuant to House Resolution 41 of the 106th General Assembly, the District 34 Ad Hoc Committee was created to hear the election contest initiated by Dr. Saxena. The Committee was charged with receiving and thoroughly reviewing evidence pertaining to Dr. Saxena's complaint and to report its findings and recommendations to the full House of Representatives. House Resolution 41 specifically authorized the Committee "to exercise such powers and authorities granted in Tennessee Code Annotated, Title 3, chapters 3 and 4, and to operate under the rules of the House of Representatives and to adopt such other rules as may be necessary to complete its duties in a fair and responsible manner." H.R. 0041, 106th Gen. Assembly (Tenn. 2009).

A hearing on Dr. Saxena's complaint was held by the Committee on April 20, 2009. Upon the conclusion of Dr. Saxena's case-in-chief, the Committee members voted unanimously to recommend to the House of Representatives that the contest be dismissed. The Committee subsequently filed its report and recommendation with the House in which it recommended that:

1. The complaint filed by Rishi K. Saxena with respect to the thirty-fourth representative district be dismissed;
2. Representative Donna Rowland's "provisional" status be lifted; and
3. Representative Rowland be seated as all other members of the House of Representatives of the 106th General Assembly are seated.

The report and recommendation of the Ad Hoc Committee was adopted by the House of Representatives on April 27, 2009, by a vote of 97-0. While the Committee's report and recommendation did make a finding that Dr. Saxena's claim "was frivolous in nature," it did not recommend any award of costs and attorney's fees to Representative Rowland, nor did it reserve the issue of an award of costs and attorney's fees for future reconsideration. In accordance with the terms of House Resolution 41, upon submission of the committee's report and recommendation the District 34 Ad Hoc Committee ceased to exist.

On May 18, 2009, Representative Rowland filed suit against Dr. Saxena in Rutherford County Chancery Court seeking an award of attorney's fees based upon the provisions of Tenn. Code Ann. § 2-17-115 and the findings of the District 34 Ad Hoc Committee that Dr. Saxena's complaint "was frivolous in nature." The Chancery Court found, however, that pursuant to Art. 2, § 11 of the Tennessee Constitution sole jurisdiction was vested in the General Assembly to decide election contests in the State House and State Senate and that Tenn. Code Ann. § 2-17-115 did not create an independent cause of action for attorney's fees. Accordingly, the Chancery Court dismissed the Complaint for lack of jurisdiction. See Rowland v. Saxena, No. M2010-00640-COA-R3-CV, 2011 WL 345827 (Tenn. Ct. App. Jan. 31, 2011).

Representative Rowland appealed the dismissal of her case and on appeal, the Court of Appeals stated that it was called upon to "determine whether Tenn. Code Ann. § 2-17-115 allows a Chancery Court to entertain an action solely to recover counsel fees and costs incurred in an election contest for a seat in the Tennessee House of Representatives." Id. at 1. The Court of Appeals affirmed the Chancery Court's ruling that Tenn. Code Ann. § 2-17-115 does not create a separate cause of action to recover attorney's fees, although it did note in dicta that the statute "constitutes the statutory basis upon which the tribunal makes such an award." Id. at 4.

In the interim, Representative Rowland did not seek re-election as Representative of House District 34 in the November 2010 general election and thus her term has expired. The term of the 106th General Assembly also expired as of the date of the November 2010 general election.

The question presented is whether the current General Assembly (107th General Assembly) could renew or reexamine this election contest, including for the purpose of considering a request for an award of costs and attorney's fees by former Representative Rowland. The determination of the answer to this question begins with an analysis of Article II, § 11 of the Tennessee Constitution, which vests each House of the General Assembly with the authority to judge the qualifications and elections of its members. The constitutional provision provides in pertinent part as follows:

The Senate and House of Representatives, when assembled, shall each choose a speaker and its other officers; be judges of the qualifications and election of its members; and sit upon its own adjournment from day to day . . . .

Tenn. Const. art. II, § 11. This section of the Constitution has been construed as vesting sole and exclusive authority in the House and Senate to judge the qualifications and election of their respective members after each legislative body is constituted as of the day of the November general election. State ex rel. Ezzell v. Shumate, 172 Tenn. 451, 459-60, 113 S.W.2d 381, 384-85 (1938); Gates v. Long, 172 Tenn. 471, 474, 113 S.W.2d 388, 389 (1938); Comer v. Ashe, 514 S.W.2d 730, 741 (Tenn. 1974). Pursuant to Article II, § 11, the General Assembly has enacted Tenn. Code Ann. § 2-17-102, which provides that "contests for the office of Senator in the General Assembly are decided by the Senate, and contests for the office of Representative in the General Assembly are decided in the House of Representatives."

While there is no Tennessee case law addressing the question of whether a subsequent General Assembly can reexamine an election contest filed in a prior General Assembly, this Office concludes that the question is controlled by the plain language of Article II, § 11 of the Tennessee Constitution. In accordance with the express language of Article II, § 11, the authority of the House and Senate to judge the "qualifications and election of its members" attaches to the House and Senate ". . . when assembled . . . ." (emphasis added). In Comer v. Ashe, the Supreme Court noted the significance of the phrase "when assembled," as used in Article II, § 11, and observed that "[t]his Article shows on its face that it is operative only when the General Assembly is in session." Comer v. Ashe, 514 S.W.2d at 733. Thus, once assembled, the House and Senate may, without question, take appropriate action relative to election contests involving their respective members. However, it is equally clear that the power to judge the qualification and elections of members of a particular General Assembly is vested solely in each House of that General Assembly. Thus, the House of Representatives of the 106th General Assembly was vested solely with the power to judge the qualifications and election of its members. Consequently, the 107th General Assembly has no authority to judge the qualifications and election of the members of the 106th General Assembly and, therefore, would have no authority to renew or reexamine an election contest arising out of the election of a member of the 106th General Assembly.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Steve McManus
State Representative
Suite 20 Legislative Plaza
Nashville, TN 37243