When a Tennessee court strikes down an administrative rule amendment, what does the Secretary of State publish as the official version of the rule?

Subject

Opinion No. 11-78, Publication of Rule Following Court's Invalidation of Rule Amendments, November 15, 2011

Plain-English summary

Secretary of State Hargett asked the AG for guidance on what the Department of State should publish on its official compilation site after the Davidson County Chancery Court invalidated the 2008 amendments to a Tennessee Higher Education Commission rule (Tenn. Comp. R. & Regs. 1540-01-02). The AG's answer was straightforward: when a court invalidates an amendment, the prior rule never went away. The Department of State should publish the older version.

The reasoning rests on a settled rule of law that applies equally to statutes and administrative rules. When a statutory amendment is held unconstitutional or otherwise invalid, the amendment "does not repeal or change the former valid act but leaves it in full force and effect." State v. Driver. The older statute (or rule) remains operative. A "void law has no force and effect," so it cannot have amended, superseded, or repealed anything. Leech v. American Booksellers Ass'n. The Tennessee UAPA codifies the same idea: Tenn. Code Ann. § 4-5-214(b) provides that when a rule amending a previously existing rule is "withdrawn," the prior rule continues in effect.

Federal courts apply the same rule under the federal APA, which Tennessee's UAPA tracks. Action on Smoking & Health (D.C. Circuit, 1983) said the court's judgment vacating rule amendments "had the effect of reinstating the rules previously in force." Paulsen v. Daniels (9th Circuit, 2005) put it bluntly: "The effect of invalidating an agency rule is to reinstate the rule previously in force."

The AG applied this directly to THEC's situation. The Davidson County Chancery Court invalidated the 2008 amendments to Tenn. Comp. R. & Regs. 1540-01-02 on October 17, 2011 (case No. 08-2105-III, National College of Business & Technology v. THEC). That ruling reinstated the rule as it stood in June 2000. The Secretary of State should publish the June 2000 version as the current rule.

One wrinkle. THEC had also amended the rule again in 2009. That 2009 amendment was not challenged in the lawsuit and was not affected by the court's order. The AG concluded that the 2009 amendment substantively does not depend on the 2008 changes, and structurally fits onto the 2000 base just as well as onto the 2008 version. So the published version should be: 2000 rule + 2009 amendment, with the 2008 amendments removed.

There is a footnote that closes a loop. The 2008 rule amendments contained the language that would have repealed the 2000 rule. Because the 2008 amendments are void, the repealing language is also void. The 2000 rule was never effectively repealed.

Currency note

This opinion was issued in 2011. 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.

The underlying principle (that invalidating an amendment reinstates the prior rule) has been a stable feature of Tennessee and federal administrative law for decades. The specific THEC rule, Tenn. Comp. R. & Regs. 1540-01-02, may have been further amended since 2011.

Background and statutory framework

Secretary of State's compilation duty. Tenn. Code Ann. § 4-5-220(b): the Secretary of State is required to compile on its website "an official compilation of all the effective rules and regulations of each agency" and to "update agency rules on the effective date of any new amendment to existing rules or of any new rules."

Withdrawn rule reverts to prior version. Tenn. Code Ann. § 4-5-214(b): when "a rule amending a previously existing rule" is withdrawn, "then such previously existing rule shall continue in effect until it is later amended, repealed or superseded by law."

Tennessee Supreme Court precedent on invalidated amendments. State v. Driver, 598 S.W.2d 774, 776 (Tenn. 1980): when a statutory amendment is declared unconstitutional or otherwise invalid, the amendment "does not repeal or change the former valid act but leaves it in full force and effect."

Void laws have no force. Leech v. American Booksellers Ass'n, 582 S.W.2d 738, 740 (Tenn. 1979). See also In re Swanson, 2 S.W.3d 180, 189 (Tenn. 1999).

Federal APA precedent (persuasive for UAPA interpretation). Action on Smoking & Health v. Civil Aeronautics Board, 713 F.2d 795, 797 (D.C. Cir. 1983) (court's judgment vacating or rescinding rule amendments "had the effect of reinstating the rules previously in force"). Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) ("The effect of invalidating an agency rule is to reinstate the rule previously in force").

The triggering judgment. National College of Business & Technology v. Tennessee Higher Education Commission, No. 08-2105-III, slip op. at 22 (Davidson County Ch. Ct. Oct. 17, 2011).

Common questions

What should the Secretary of State cite as authority when publishing the reinstated rule?

The opinion suggested citing both the Davidson County Chancery Court's October 2011 order and this AG opinion (No. 11-78) as authority. The court order establishes the legal effect; the AG opinion explains the publication step.

Does this principle work the same way if the rule is invalidated on appeal?

Yes. The reasoning depends on the legal status of the amendment, not on which court invalidated it. If an amendment is held void at any level, the prior rule was never repealed.

What if the prior rule itself was problematic?

The opinion didn't address that scenario. As a general matter, invalidating the amendment does not validate the prior rule beyond what it was. If the prior rule has independent legal problems, a challenger would have to bring a separate action.

What about intervening 2009 amendments that touched the same rule?

The AG handled this directly in the THEC scenario: an unchallenged 2009 amendment should be incorporated into the published reinstated rule, because the 2009 amendment was a separate, independently valid action. The reinstated baseline is the pre-2008 rule, with later valid amendments still in effect.

Does an invalidation of part of an amendment reinstate the entire prior rule, or only the parts the amendment touched?

The opinion addressed an amendment held invalid in its entirety. For partial invalidation, the answer depends on severability: the unchallenged portions of the amendment continue, while the invalidated portions revert to the prior text. Practical publication would require careful redlining.

Citations

• Tenn. Code Ann. § 4-5-220(b)
• Tenn. Code Ann. § 4-5-214(b)
• State v. Driver, 598 S.W.2d 774 (Tenn. 1980)
• Leech v. American Booksellers Ass'n, 582 S.W.2d 738 (Tenn. 1979)
• In re Swanson, 2 S.W.3d 180 (Tenn. 1999)
• Action on Smoking & Health v. Civil Aeronautics Board, 713 F.2d 795 (D.C. Cir. 1983)
• Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005)
• National College of Business & Technology v. Tennessee Higher Education Commission, No. 08-2105-III (Davidson County Ch. Ct. Oct. 17, 2011)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-078.pdf

Original opinion text

November 15, 2011
Opinion No. 11-78
Publication of Rule Following Court's Invalidation of Rule Amendments

QUESTION

How does the judicial invalidation of an amendment to an administrative rule affect the manner in which the rule is published by the Tennessee Department of State?

OPINION

When an amendment to an administrative rule is judicially invalidated, then the previously existing rule is reinstated and should be published by the Tennessee Department of State.

ANALYSIS

The Secretary of State is required by statute to compile on its web site "an official compilation of all the effective rules and regulations of each agency." Tenn. Code Ann. § 4-5-220(b). The statute also mandates that the Secretary of State "update agency rules on the effective date of any new amendment to existing rules or of any new rules." Id. This opinion addresses the effect of a judicial invalidation of a rule amendment on the Department of State's official compilation of rules.

When a statutory amendment is declared unconstitutional or otherwise invalid, the amendment "does not repeal or change the former valid act but leaves it in full force and effect." State v. Driver, 598 S.W.2d 774, 776 (Tenn. 1980). Inasmuch as "a void law has no force and effect," it is ineffective to amend, supersede, or repeal the existing law. Leech v. American Booksellers Ass'n, 582 S.W.2d 738, 740 (Tenn. 1979). Instead, the prior law remains in full force and effect. See In re Swanson, 2 S.W.3d 180, 189 (Tenn. 1999).

This principle applies whether the law in question is a statute or an administrative rule. See Tenn. Code Ann. § 4-5-214(b) (providing that when "a rule amending a previously existing rule" is withdrawn, "then such previously existing rule shall continue in effect until it is later amended, repealed or superseded by law"). See also Action on Smoking & Health v. Civil Aeronautics Board, 713 F.2d 795, 797 (D.C. Cir. 1983) (observing that under federal version of Administrative Procedures Act, upon which Tennessee's Uniform Administrative Procedures Act is patterned, court's judgment vacating or rescinding rule amendments "had the effect of reinstating the rules previously in force"); Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) ("The effect of invalidating an agency rule is to reinstate the rule previously in force").

In accordance with these principles, when a rule amending a previously existing rule is held invalid, then the Secretary of State should reinstate the previous rule as part of its official compilation of rules and regulations.

In particular your request points out that the Tennessee Higher Education Commission's 2008 amendments to Tenn. Comp. R. & Regs. 1540-01-02 recently were invalidated by the Davidson County Chancery Court. National College of Business & Technology v. Tennessee Higher Education Commission, No. 08-2105-III, slip op. at 22 (Davidson County Ch. Ct. Oct. 17, 2011). In accordance with these authorities, the Davidson County Chancery Court's October 17, 2011, order invalidating THEC's 2008 amendments to Tenn. Comp. R. & Regs. 1540-01-02 has the effect of reinstating the previous version of the rules, which became effective in June 2000.[1] Accordingly, the version of the rules that was effective in June 2000 should be published as the current version of the rules. As authority for this version of the rules, the Department of State could cite the Davidson County Chancery Court's October 2011 order, as well as this opinion. Moreover, the published version of Tenn. Comp. R. & Regs. 1540-01-02 should include THEC's 2009 rule amendment. This amendment was not challenged in the Chancery Court action and was not affected by the Chancery Court's order. Substantively, the 2009 rule amendment is not dependent upon any of the changes attempted by the 2008 rule amendments, and, structurally, the 2009 amendment fits into the 2000 rule just as well as into the invalidated 2008 rule.

[1] This conclusion is supported by the fact that the language repealing the 2000 rule was part of the 2008 rule, which has been declared invalid, thereby rendering the repealing language ineffective.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

MARY ELLEN KNACK
Senior Counsel

Requested by:
The Honorable Tre Hargett
Secretary of State
State Capitol
Nashville, Tennessee 37243-0305