IN THE CHANCERY COURT FOR HAMILTON COUNTY, TENNESSEE DENNIS R. MASSENGALE, KAREN MASSENGALE, CARNELL STORIE, ROXIE DAVIS, CRISSY LAWSON, MARION-BRADLEY FIREWORKS RETAILERS and WET WILLY S FIREWORKS SUPERMARKET OF TENNESSEE, INC., v. Plaintiffs, CITY OF EAST RIDGE, and Defendant, ROBERT E. COOPER, JR., ATTORNEY GENERAL AND REPORTER Intervenor/Defendant. DOCKET NO. 11-0742 PART I MEMORANDUM OPINION AND ORDER This matter is before the court on the Plaintiffs 1 Motion for Judgment on the Pleadings ( MJP seeking a ruling in their favor for declaratory and injunctive relief against Defendant City of East Ridge ( East Ridge and Intervenor/Defendant Robert E. Cooper, Jr., Attorney General ( Attorney General (collectively referred to as Defendants. The court heard the parties arguments on February 2, 2012, and took the matter under advisement. Having considered the arguments made by counsel and all of the documents filed in support thereof, the court issues this Memorandum Opinion and Order. 1 The Plaintiffs in this matter are a mixture of residents of the city of East Ridge and licensed fireworks retailers in Tennessee, including Dennis R. Massengale, Karen Massengale, Carnell Storie, Marion-Bradley Fireworks Retailers and Wet Willy s Fireworks Supermarkets of Tennessee, Inc. (collectively referred to as Plaintiffs.
I. BACKGROUND This cause of action involves a constitutional challenge to fireworks legislation which was passed by the Tennessee General Assembly in 2011 and is set to become effective on July 1, 2012. The Plaintiffs filed this MJP asking the court to issue a declaratory judgment and grant injunctive relief on their claim that Public Chapter 475 of the Acts of 2011 (to be codified at Tenn. Code Ann. 68-104-112(c and referred to as the East Ridge fireworks legislation is unconstitutional under both the Tennessee and United States Constitutions. The Plaintiffs filed their MJP on December 22, 2011, to which the Defendants filed a Response in Opposition on January 16, 2012. The Plaintiffs then filed their Reply Memorandum in Support of MJP on January 31, 2012. Public Chapter 475 of the Acts of 2011, referred to as the East Ridge fireworks legislation, states the following: AN ACT to authorize the sale at retail of D.O.T. Class C common fireworks in the city of East Ridge. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Notwithstanding any other provision of law to the contrary, it shall be lawful for any individual, firm, partnership or corporation to sell at retail any D.O.T. Class C common fireworks, as defined in Tennessee Code Annotated, Section 68-104-101, within the city of East Ridge. The provisions of Tennessee Code Annotated, Title 68, Chapter 104, Part 1, shall apply to the sale of fireworks in such city. SECTION 2. This act shall take effect July 1, 2012, the public welfare requiring it. The relevant facts are as follows. Plaintiffs raise two constitutional challenges to the 2
East Ridge fireworks legislation: (1 first, Plaintiffs argue it violates the Equal Protection Clause 2, and (2 additionally, Plaintiffs argue it violates Tennessee Constitution, Article II, 17 (referred to as the Caption Clause requirement. For background purposes and before addressing the parties arguments, the court will give a brief history of Tennessee s fireworks legislation which led to this lawsuit. Originally, it appears the generally applicable law in Tennessee was to allow for commercial fireworks sales statewide. Then, in the 1940 s and 1950 s, Tennessee began prohibiting fireworks sales in large urban counties through a series of private acts 3. In 1955, the Hamilton County Private Act made it unlawful for any person or business in Hamilton County to possess, store, use, manufacture or sell pyrotechnics. 4 Therefore, beyond an exception for authorized public displays, the Hamilton County Private Act made fireworks illegal in all of Hamilton County, including within the city of East Ridge, which is wholly located within Hamilton County, Tennessee. Later, the General Assembly passed a statewide statutory prohibition against the sale of fireworks in large urban counties. Tenn. Code. Ann. 68-104-112(a(4(A made it unlawful for any individual, firm, partnership or corporation to sell at retail any Class C common fireworks within any county having a population greater than two hundred thousand (200,000, according to the 1980 federal census or any subsequent federal census subject to certain statutory exceptions. All parties agree that Hamilton County has a population above 200,000 and fell within this statutory provision. Therefore prior to the 2 Specifically, Plaintiffs allege equal protection violations in contravention of Tennessee Constitution, Article XI, 8, and United States Constitution, Amendment XIV, 1. 3 See Chapter 58, Private Acts of 1947 (the Davidson County Private Act ; Chapter 568, Private Acts of 1949 (the Knox County Private Act ; Chapter 413, Private Acts of 1955 (the Hamilton County Private Act. 4 1955 Private Acts, Chapter 413, 1. 3
East Ridge fireworks legislation, it was illegal for individuals or businesses in East Ridge to sell fireworks. Then, legislation regarding allowing the sale of fireworks in East Ridge was proposed in the General Assembly as early as 2009, and ultimately the East Ridge fireworks legislation, which is being challenged in this lawsuit, was passed in both the House and Senate in the 2011 session. It appears then that, in or around September/October of 2011, the East Ridge City Council passed the proposed fireworks ordinance. Plaintiffs Complaint for Declaratory and Injunctive Relief challenging the constitutionality of the East Ridge fireworks legislation was filed on September 28, 2011. The court will discuss the parties arguments more in depth below, but will now briefly summarize the arguments made in the parties respective briefs and at oral argument. Basically, the Plaintiffs argue the East Ridge fireworks legislation violates their equal protection rights and violates Tennessee s Caption Clause. The Defendants counter that the legislation is not a violation of equal protection because it meets the rational basis test, that the legislation does not violate the Caption Clause because it clearly states the legislation s purpose, and that the Plaintiffs lack standing to bring this action. Regarding equal protection, Plaintiffs argue the East Ridge fireworks legislation is unconstitutional because it is special legislation that exempts only one group (East Ridge residents from a generally applicable law and that there is no reasonable relation between the particular classification utilized and a legitimate governmental purpose. (Plaintiffs MJP, generally. Essentially, Plaintiffs argue that there is a disconnect between the existing Tennessee laws in place that ban fireworks in high-population counties (such as Hamilton County, including the city of East Ridge, which have been upheld as constitutional for safety 4
purposes, and Defendants suggested rational basis for the East Ridge fireworks legislation which is for economic purposes. Defendants maintain that they have met the deferential reasonably conceivable rational basis standard to support allowing the commercial sale of fireworks in East Ridge by showing how East Ridge is uniquely situated with a major interstate exchange immediately adjacent to the Georgia border 5 which provides East Ridge with a unique location likely to draw fireworks buyers passing through the city. (Defendants Response, 2. Both parties agree that the constitutional standard to be applied to this contested legislation is a rational basis analysis, wherein the court is to determine whether the legislative classification ha[s] a reasonable relationship to a legitimate state interest. (Plaintiffs MJP, 8; Defendants Response, 16. The Plaintiffs concede that courts are deferential to legislatures in a rational basis analysis, but Plaintiffs argue that [courts] have never allowed such differentiation in criminal or safety statutes to provide selective, economic benefits. (Plaintiffs Reply, 4. Regarding Tennessee s Caption Clause, Plaintiffs argue the East Ridge fireworks legislation is void because it has a constitutionally defective caption which does not give the required notice of scope of legislation nor the required notice of amendment/repeal of prior law. (Plaintiffs MJP, generally. Article II, 17 of the Tennessee Constitution states the following: Bills may originate in either House; but may be amended, altered or rejected by the other. No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title 5 Purportedly, this is an important fact because Georgia is a state that does not allow the sale of fireworks. 5
or substance of the law repealed, revived or amended. Specifically, Plaintiffs argue that neither the caption nor the text of the East Ridge fireworks legislation identifies that it is amending or repealing Tenn. Code Ann. 68-104-112 or the Hamilton County Private Act of 1955, despite the actual effect of the East Ridge fireworks legislation repealing or amending those prior laws. Defendants maintain that the East Ridge fireworks legislation creates a new stand-alone provision applicable to firework sales in East Ridge and that it clearly gives notice of its singular substance of allowing firework sales in East Ridge. Furthermore, Defendants argue the East Ridge fireworks legislation implicitly allows for certain things (i.e., the storage and transportation of fireworks to effectuate the legislation s purpose the sale of fireworks and that any repeal of prior law by implication does not have to be mentioned explicitly in the legislation and would be harmless error even if it did. (Defendants Response, 24-25. Finally, Defendants also argue that the Plaintiffs lack standing to bring this cause of action before the court at this time. Defendants maintain that the Plaintiffs, who are an alleged mix of East Ridge residents and fireworks retailers in Tennessee, have moved for this action prior to any discovery based on their bare-bone allegations and have not met their burden for showing a distinct and palpable injury nor a causal connection between the alleged injury and legislation. As such, Defendants have denied standing and argue that they are entitled to a presumption of correctness on their denials of the pleadings because they are the non-movant in this action. Plaintiffs concede that standing is disputed, but argue that it is a legal dispute and the court must decide whether factual development is required in order for Plaintiffs to establish standing. (Plaintiffs Reply, 3. 6
II. ISSUES Whether the court should grant Plaintiffs Motion for Judgment on the Pleadings? Specifically, there are three sub-issues: (1 Whether the East Ridge fireworks legislation violates the Plaintiffs right to equal protection under the constitutions of the United States and the State of Tennessee?; (2 Whether the East Ridge fireworks legislation is void because its caption and accompanying text violates Tennessee s Caption Clause requirement?; and, (3 Whether Plaintiffs have standing to bring this action at this time? III. STANDARD OF REVIEW Motions for judgment on the pleadings are governed by Rule 12.03 of the Tennessee Rules of Civil Procedure. Rule 12.03 allows a party to file a motion for judgment on the pleadings [a]fter the pleadings are closed but within such time as not to delay the trial. Tenn. R. Civ. P. 12.03. When reviewing a motion for judgment on the pleadings, the court must accept as true all well-pleaded facts and all reasonable inferences drawn therefrom alleged by the party opposing the motion. Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 470 (Tenn. 2004 (quoting McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn. 1991. Additionally, [c]onclusions of law are not admitted nor should judgment on the pleadings be granted unless the moving party is clearly entitled to judgment. Id. Generally, a motion for judgment on the pleadings is in effect a motion to dismiss for failure to state a claim upon which relief can be granted. Stoneybrook Golf Course, LLC v. City of Columbia, No. M2009-01780-COA-R3-CV, 2010 WL 2922023, at *5 (Tenn. Ct. App. July 26, 2010 (citing Waldron v. Delffs, 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998. 7
However, this case presents the less common situation where the Plaintiffs are the party seeking the judgment on the pleadings as compared to responding to the Defendants motion to dismiss or judgment on the pleadings. As such, with the Defendants as the non-movants opposing this motion, the court must accept as true all of Defendants factual denials and all reasonable inferences of such denials, and the Plaintiffs, as the moving party, must show they are clearly entitled to judgment. IV. DISCUSSION The parties have briefed and argued the constitutional issues very well. However, before the court can reach those issues, the court must address standing. This is true because even if a statute is unconstitutional, the party challenging the statute must still be properly before the court. As the Tennessee Court of Appeals has court stated: [O]nly those who have a right to raise a question of its unconstitutionality may invoke the aid of the courts to have it judicially set aside, and the constitutionality of a legislative act is open to attack by those persons whose rights are affected thereby. Before a law can be assailed by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement of his rights. Assailants must therefore show the applicability of the statute to them and that they are thereby injuriously affected. National Gas Distributors v. Sevier County Utility District, 7 S.W.3d 41, 44 (Tenn. Ct. App. 1999 (citing Parks v. Alexander, 608 S.W.2d 881, 885 (Tenn. Ct. App. 1980 (quoting 16 Am. Jur. 2d Constitutional Law 188 (1979. Plaintiffs filed this declaratory judgment action pursuant to Tenn. Code Ann. 29-14- 103, which allows for interested persons to have their legal rights determined and have 8
important questions of law settled before the controversy has reached a more critical stage. See Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 837 (Tenn. 2008 (citing 26 C.J.S. Declaratory Judgments 3 (2001. However, with regard to a declaratory judgment action, [a]lthough a plaintiff need not show a present injury, an actual case or controversy is still required. Colonial Pipeline, 263 S.W.3d at 837 (citing Cardinal Chem. Co. v. Morton Int l, 508 U.S. 83, 95, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993 (stating that a party seeking a declaratory judgment has the burden of establishing the existence of an actual case or controversy. The Colonial court went on to state that [a] bona fide disagreement must exist and that courts still may not render advisory opinions based on hypothetical facts. Id. at 838 (citations omitted. The justiciability doctrines of standing and ripeness still exist in declaratory judgment actions. Id. To have standing to sue, a plaintiff must establish standing by a preponderance of the evidence. Fannon v. City of LaFollette, 329 S.W.3d 418, 424 (Tenn. 2010. Additionally, the party challenging the statute must show that their rights would be infringed or that they would be injuriously affected. National Gas Distributors, 7 S.W.3d at 44. Therefore, in this case, Plaintiffs must show by a preponderance of the evidence that their rights would be infringed or that they would be injuriously affected by the passage of the East Ridge fireworks legislation. In this case, the Defendants have clearly challenged and denied that Plaintiffs have met their burden to show standing. Defendants have denied standing on the basis of lack of factual discovery, failure of Plaintiffs to establish any distinct and palpable injury from the East Ridge fireworks legislation, and failure of Plaintiffs to establish a causal connection 9
between the alleged injury (safety; property rights; etc. and the challenged conduct (the East Ridge fireworks legislation. (Defendants Response, 2. Defendants have challenged both the individual citizens standing and the entity Plaintiffs standing. (Defendants Response, 7-15. With that background and context, the court views the first issue to resolve in this matter as the following. Have the Plaintiffs shown that they are clearly entitled to this motion for judgment on the pleadings by meeting their burden by a preponderance of the evidence to establish standing based on their allegations in the Complaint 6 in the face of a denial by the Defendants, who are the non-movants and are entitled to a presumption of correctness on all factual denials and reasonable inferences drawn therefrom? For the court to answer this question, it will have to analyze the disputed legislation and the parties, considering their alleged harm and interests at this time. A. The Plaintiffs Standing in the Context of a Declaratory Judgment Action. Courts are generally precluded from adjudicating an action at the instance of one whose rights have not been invaded or infringed. Fannon, 329 S.W.3d at 424 (quoting American Civil Liberties Union of Tennessee v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006 (citations omitted. Additionally, standing may not be predicated upon an injury to an interest that [a] plaintiff shares in common with all other citizens. Fannon, 329 S.W.3d at 427 (quoting Darnell, 195 S.W.3d at 620. This means that private citizens cannot maintain an action complaining of the wrongful acts of public officials unless such private citizens aver special interest or a special injury not common to the public generally. Fannon, 329 S.W.3d at 427 (quoting Bennett v. Stutts, 521 S.W.2d 575, 576 (Tenn. 1975. 6 The court would note the Complaint appears to be unverified and has no affidavits attached to it. 10
Recently, Chancellor McCoy of the Davidson County Chancery Court stated that [t]he Declaratory Judgments Act deals only with present rights that have accrued under presently existing facts. It gives the courts no power to determine future rights or possible controversies in anticipation of events that may or may not occur. Howe v. Haslam, No. 11-00778-II, Chancery Court for Davidson County (Jan. 25, 2012 (citing Third Nat. Bank in Nashville v. Carver, 218 S.W.2d 66, 69 (Tenn. Ct. App. 1948. The question then becomes have the individual and/or entity Plaintiffs established their rights have been invaded or infringed by a special interest/injury not common to the public at this time and that Plaintiffs are clearly entitled to a judgment on the pleadings in the face of Defendants denials? The Tennessee Court of Appeals recently summarized standing, in a plaintiff s action for declaratory judgment in which the court found no live case or controversy existed, as follows: 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. Norma Faye Pyles Lynch Family Purpose LLC v. Putnam County, 301 S.W.3d 196, 203 (Tenn.2009(citing compare 13 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Richard D. Freer, Federal Practice and Procedure 3529, at 612 (3d ed.2008..., with Barbara Kritchevsky, Justiciability in Tennessee, Part One: Principles and Limits, 15 Mem. St. U.L.Rev. 1, 3 n. 5 (1984. It is well-settled that the role of the court is to adjudicate and settle legal rights, not to give abstract or advisory opinions. Id. (citations omitted. A matter qualifies as a legal controversy when and if there exists a real and disputed issue. Id. Theoretical or abstract questions do not constitute a legal controversy. Id. Rather, a there must be a real dispute between parties with real and adverse interests. Id. The determination of whether a matter is ripe for review involves a determination of whether the harm asserted has matured sufficiently to warrant judicial 11
intervention[.] American Civil Liberties Union of Tennessee v. Darnell, 195 S.W.3d 612, 620 n. 7 (Tenn.2006(quoting Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975. Accordingly, the courts will not address an issue that is not ripe for review. City of Memphis v. Shelby County Election Com'n, 146 S.W.3d 531, 539 (Tenn.2004. Although a showing of present injury is not required in a declaratory judgment action, a real case or controversy must nevertheless exist. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 837 38 (Tenn.2008. A lawsuit brought as a declaratory judgment action may be dismissed for lack of ripeness. Id. The doctrine of standing is used by the court to determine whether a plaintiff is properly situated to prosecute the action. Marceaux v. Sundquist, 107 S.W.3d 527, 531 (Tenn.Ct.App.2002 (quoting Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn.1976. 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. Id. (citations omitted. These elements are indispensable to the plaintiff's case[.] Id. Thomas v. Shelby County, No. W2010-01472-COA-R3-CV, 2011 WL 3558171, at *3 (Tenn. Ct. App. Aug. 12, 2011. The Thomas court found that the plaintiff s assertion that he was likely to suffer a future injury by reason of a possible future dispute was not sufficient to show ripeness for a current controversy. Id. The three indispensable elements that a plaintiff must show to establish standing were discussed in detail in the Darnell case. See Darnell, 195 S.W.3d 612, 620-627. The Darnell court stated as follows: First, a plaintiff must show a distinct and palpable injury: conjectural or hypothetical injuries are not sufficient. City of Brentwood, 149 S.W.3d at 55 56; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992. Standing also may not be predicated upon an injury to 12
an interest that the plaintiff shares in common with all other citizens. Mayhew, 46 S.W.3d at 767. Were such injuries sufficient to confer standing, the State would be required to defend against a profusion of lawsuits from taxpayers, and a purpose of the standing doctrine would be frustrated. See Parks v. Alexander, 608 S.W.2d 881, 885 (Tenn.Ct.App.1980 (stating that one purpose of standing is to protect the State from a profusion of lawsuits. The second essential element of standing is a causal connection between the claimed injury and the challenged conduct. Mayhew, 46 S.W.3d at 767. A plaintiff may satisfy this element by establishing the existence of a fairly traceable connection between the alleged injury in fact and the defendant's challenged conduct. DaimlerChrysler Corp., 547 U.S. at, 126 S.Ct. at 1861. The third and final element necessary to establish standing is a showing that the alleged injury is capable of being redressed by a favorable decision of the court. Petty, 91 S.W.3d at 767; DaimlerChrysler Corp., 547 U.S. at, 126 S.Ct. at 1861. It is important to note that standing does not depend upon a plaintiff's likelihood of success on the merits; however, the standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. City of Brentwood, 149 S.W.3d at 56. Darnell, 195 S.W.3d at 620. In Darnell, plaintiff s alleged injury was their ability to lobby an informed electorate was hindered by the Secretary of State s untimely publication regarding a proposed amendment to the Tennessee Constitution. Id. at 621. However, the trial court held the plaintiffs failed to show the first element of standing an injury in fact. Specifically, the Chancellor in that case found that the plaintiffs failed to offer proof of hard, concrete facts showing that the plaintiffs actually put forth an actual lobbying effort 13
regarding the proposed amendment. Id. The only proof 7 offered in that case was sketchy at best that some of the plaintiffs testified in their depositions that they had contacted their legislators. Id. The Tennessee Supreme court upheld the trial court in finding that the plaintiffs in Darnell failed to establish a distinct, concrete injury in fact resulting from the alleged [challenged conduct] and that the plaintiffs failed to establish any causal connection between their claimed injuries and the alleged [challenged conduct]. Id. at 622. B. The Plaintiff Parties and Their Allegations There are three individual Plaintiffs 8 and two entity Plaintiffs in this matter. The court will review the individual and entity Plaintiffs and their alleged interest/harm in this matter if the legislation is enforced. i. Individual Plaintiffs. The individual Plaintiffs are Dennis R. Massengale, Karen Massengale (collectively the Massengales, and Carnell Storie. The Massengales are alleged to be citizens, taxpayers, residents, and homeowners in East Ridge that own a business situated in an area close to where East Ridge seeks to authorize the sale of fireworks. (Complaint 4. The Massengales claim that the sale of fireworks will harm them because it will lead to diminished property value, diminished access to their business, enhanced risks of damage from fire or explosion, and increased costs related to insuring their property and business. (Complaint 4. Defendants denied these allegations and argued Plaintiffs have put forth no 7 The court would note that in reviewing the standing-related cases submitted by the parties, most (if not all of the cases involved some proof submitted by the plaintiffs other than just a mere complaint. Whereas in the instant case, the only proof offered by the individual and entity Plaintiffs is an unverified complaint without any affidavits or deposition testimony attached. 8 Originally this matter involved five individual Plaintiffs but Roxie Davis and Crissy Lawson voluntarily dismissed their claims by court order entered November 30, 2011. 14
evidence establishing standing, and, alternatively, that even if Plaintiffs have sufficiently alleged damage the damage they claim would be shared in common with all other citizens of East Ridge and is not sufficient to establish standing. (Defendants Response, 9. At this point, and in the context of a denial by the non-movant Defendants, the court views the Massengales allegations as merely conclusory and unsupported statements about a potential harm that might happen in the future. Seeing no evidentiary support, or even affidavit by the Massengales stating as such, the court finds these statements to be speculative and conjectural at this time. These Plaintiffs have put forth no evidence, or even a specific allegation with some support, showing how they will have particularized harm different from other citizens, nor have they put forth evidence showing a causal connection between the alleged harm (diminished property value; enhanced risk of fire damage; etc. and the disputed legislation (the sale of fireworks in East Ridge. Even if the court were not to give reasonable inferences to Defendants denial of Plaintiffs standing, the court is still not convinced that merely being a citizen of East Ridge is enough to allow any East Ridge citizen to challenge the East Ridge fireworks legislation. The Plaintiffs will need to: (a further articulate how their alleged harm is different from any other Tennessee citizens if the sale of fireworks in East Ridge is allowed; and (b further articulate the causal connection between the alleged harm (safety; property devaluation; etc. and the challenged conduct (allowing the sale of fireworks in East Ridge. The other individual Plaintiff is Carnell Storie ( Storie. He alleges he is a resident of East Ridge who owns real property in the city and has been able to rely upon Tennessee s statutory prohibitions on fireworks to ensure the peace and safety of his family and his 15
community. (Complaint 5. Storie s alleged harm is that the sale of fireworks will undermine protections from the (misuse of fireworks and will diminish the value of his property. (Complaint 5. Again, at this point in the context of a denial by the non-movant Defendants, the court views Storie s allegations as merely conclusory and unsupported statements about a potential harm that might happen in the future. Seeing no evidentiary support, or even affidavit by Storie stating as such, the court finds these statements to be speculative and conjectural at this time. While Plaintiffs are correct that standing under the declaratory judgment act does not require them to show the extent of harm they will suffer, Plaintiffs still must meet all the elements of standing, including: (1 injury in fact; (2 causal connection; and (3 redressability. Within those standing elements, Plaintiffs must meet all requirements such as showing how their harm is particularized and not the same as the general citizenry. Standing is not established by an individual plaintiff simply because they allege through an unverified complaint that they are a resident of East Ridge and that the East Ridge fireworks legislation might affect their legal rights in some unspecific way in the future. Here, these individual Plaintiffs have not met their burden to establish how allowing fireworks sales (and implicitly fireworks storage to facilitate sales in East Ridge will harm these individuals rights. Specifically, the Plaintiffs have not shown injury in fact nor a causal connection regarding how fireworks sales might impinge on Plaintiffs safety rights (or property rights. The court need not address any other arguments as to these Plaintiffs at this time because when a case is to be decided upon constitutional grounds, the court should use judicial restraint to resolve the 16
matter as narrowly as possible. See Darnell, 195 S.W.3d at 625. As such, the Plaintiffs must come forward with more factual development of their particularized harm and causal connection to show standing. ii. Entity Plaintiffs. The entity Plaintiffs are Marion-Bradley Fireworks Retailers ( MBFR and Wet Willy s Fireworks Supermarket of Tennessee, Inc. ( Wet Willy s (collectively entity Plaintiffs. MBFR is alleged to be an association of Tennessee residents who are engaged in the storage and sale of fireworks that have long adhered to the statutory prohibition against fireworks storage and sales in urban counties. (Complaint 8. The alleged harm MBFR claims is that the East Ridge fireworks legislation undermines the business model of these existing fireworks sellers and would result in economic harm. (Complaint 8. There are several reasons to deny standing to entity Plaintiff MBFR at this time. First, MBFR is alleged to be an association and therefore would be subject to standing requirements of an association. For an association to establish standing, the association must show the following: (1 its members would otherwise have standing to sue in their own right; (2 the interests it seeks to protect are germane to the organization s purpose; and (3 neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit. Darnell, 195 S.W.3d at 626 (citations omitted. Despite this requirement, Plaintiff MBFR has not clearly identified the organization s purpose nor alleged the interests the association seeks to protect in this lawsuit that are germane to that unknown organizational purpose. Furthermore, the association has failed to even allege the third prong, that the claim asserted does not require the participation of its individual members. Second, at 17
this point in the context of a denial by the non-movant Defendants, the court views MBFR s allegations as merely conclusory and unsupported statements about a potential harm that might happen in the future. Seeing no evidentiary support, or even affidavit by MBFR stating as such, the court finds these statements to be speculative and conjectural at this time. Third, per Defendants denial, it is possible (perhaps even likely that MBFR could benefit from the East Ridge fireworks legislation as more business opportunities may arise upon enforcement of the legislation. However, that issue is not for the court to decide at this time, the court merely finds that the Plaintiff has not met its burden of showing MBFR s rights have been invaded or infringed to establish standing. Here, similar to the National Gas Distributors case, MBFR s only claimed injury appears to be that it might be forced to compete with other fireworks businesses. Specifically, MBFR has not shown how fireworks sales will harm MBFR s safety or property rights. As to the businesses, the court is of the opinion that statutes are presumed to be constitutional and that the possibility of business competition alone is not enough to warrant judicial intervention by this court at this time. As such, the Plaintiffs must come forward with more factual development of their particularized harm and causal connection to show standing. Wet Willy s is alleged to be a distributor of fireworks that maintains a number of retail stores selling fireworks in East Tennessee. The alleged harm that Wet Willy s claims is that the East Ridge fireworks legislation damages the business of Wet Willy s because Wet Willy s has spent money locating its stores in areas authorized by Tennessee. (Complaint 9. Wet Willy s alleges it will be forced to face diminished sales or to expand their business operations so they can effectively compete. (Complaint 9. 18
Again, the court is of the opinion that Plaintiff Wet Willy s has not met its burden to show standing at this time. At this point in the context of a denial by the non-movant Defendants, the court views Wet Willy s allegations as merely conclusory and unsupported statements about a potential harm that might happen in the future. Seeing no evidentiary support, or even affidavit by Wet Willy s stating as such, the court finds these statements to be speculative and conjectural at this time. Additionally, per Defendants denial, it is possible (perhaps even likely that Wet Willy s could benefit from the East Ridge fireworks legislation as more business opportunities may arise upon enforcement of the legislation. However, that issue is not for the court to decide at this time, the court merely finds that the Plaintiff has not met its burden of showing Wet Willy s rights have been invaded or infringed to establish standing. Here, similar to the National Gas Distributors case, Wet Willy s only claimed injury appears to be that it might be forced to compete with other fireworks businesses. Specifically, Wet Willy s has not shown how fireworks sales will harm Wet Willy s safety or property rights. As to the businesses, the court is of the opinion that statutes are presumed to be constitutional and that the possibility of business competition alone is not enough to warrant judicial intervention by this court at this time. As such, the Plaintiffs must come forward with more factual development of their particularized harm and causal connection to show standing. The court, while cognizant of the importance of Plaintiffs constitutional challenges, cannot proceed with this matter at this time. This is a declaratory judgment action, sought prior to any discovery, wherein the non-movant Defendants have denied factual standing assertions of the Plaintiffs and the Plaintiffs only proof of standing is an unverified 19
Complaint with largely conclusory statements. This court must decline to rule upon the constitutional issues at this time as it finds the Plaintiffs lack standing. In view of the constitutional challenge and approaching implementation of the legislation s date, the court is going to dismiss this case without prejudice because Plaintiffs have not shown standing and may not be able to show standing until the legislation has been in effect for some time and the effects of the East Ridge fireworks legislation become known. In view of the effective date of July 1, 2012, the court is going to dismiss the Complaint so the Plaintiffs can file an expedited appeal to the Court of Appeals in an effort to have the issue decided before July 1, 2012, if they indeed have standing, on a legal basis, to challenge the constitutionality of the East Ridge fireworks legislation. V. CONCLUSION In light of the foregoing, the court hereby orders that Plaintiffs Motion for Judgment on the Pleadings is DENIED. Based upon the foregoing, the Plaintiffs Complaint for a Declaratory Judgment is dismissed without prejudice at the Plaintiffs cost. ENTER: CHANCELLOR, PART I 20
CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and exact copy of this Order has been placed in the United States Mail addressed to: Jeffrey P. Yarbro, Esq. Ronald D. Wells, Esq. Abigail Turner, Esq. Robinson, Smith & Wells Bass, Berry & Sims PLC 633 Chestnut Street, Suite 700 150 Third Avenue South, Suite 2800 Chattanooga, TN 37450 Nashville, TN 37201 Christopher Varner, Esq. Steven A. Hart, Esq. Evans, Harrison & Hackett, PLLC Office of Attorney General 835 Georgia Avenue, Suite 800 P.O. Box 20207 Chattanooga, TN 37402 425 Fifth Avenue North Nashville, TN 37202 John R. Anderson, Esq. Grant, Konvalinka & Harrison, P.C. 633 Chestnut Street, Suite 900 Chattanooga, TN 37450 This the day of February, 2011. S. Lee Akers, Clerk and Master By: Deputy Clerk and Master 21