Could the Tennessee State Capitol Commission file a Heritage Protection Act waiver to relocate the Forrest, Farragut, and Gleaves busts from the state capitol, and did it need the State Building Commission's concurrence to do so?

Plain-English summary

Lt. Governor Randy McNally and House Speaker Cameron Sexton asked the AG two questions about the State Capitol Commission's August 2020 petition to relocate the busts of Nathan Bedford Forrest (Confederate general, placed in 1978), David Glasgow Farragut (Union admiral, placed in 1946), and Albert Gleaves (U.S. Navy admiral, placed between 1939 and 1944) from the second floor of the Tennessee state capitol to the Tennessee State Museum. The Tennessee Historical Commission granted that waiver in March 2021. The legislative leadership wanted to know whether the petition was procedurally proper.

Question 1: Was the State Capitol Commission an appropriate petitioner under the Heritage Protection Act?
Yes. Under Tenn. Code Ann. § 4-1-412(c)(1), only a "public entity exercising control of a memorial" may file a waiver petition. The Act does not define "control," so the AG used the ordinary meaning, drawing on Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512 (Tenn. 2005), and Black's Law Dictionary: "[p]ower or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee." Section 4-8-302(a) gave the State Capitol Commission a master-planning role for the state capitol building, plus authority over furnishings, maintenance, and non-governmental use. That was enough "control" of memorials inside the building to qualify as a petitioner. The opinion expressly noted that the Heritage Protection Act did not require exclusive or primary control, only "control"; multiple public entities could each be appropriate petitioners, and the Tennessee State Museum (under the Douglas Henry State Museum Commission) and the Department of General Services (which has duties for the capitol's second floor under § 4-8-101(a)(2)) might also exercise control.

Question 2: Did the State Capitol Commission need the State Building Commission's concurrence to file the petition?
This question the AG did not answer in the same definitive way. Tenn. Code Ann. § 4-8-302(b) makes "[a]ll actions of the [State Capitol] Commission pursuant to subsection (a) . . . subject to the concurrence of the state building commission." The petition could be characterized two ways: (a) as the implementation or establishment of a plan or policy for the capitol (in which case § 4-8-302(b) concurrence would be required), or (b) as a decision to pursue a legal remedy under the Heritage Protection Act (in which case concurrence arguably would not be required). The Tennessee Historical Commission had received a letter from the General Assembly raising the concurrence issue, considered it, and proceeded to grant the waiver without requiring concurrence. The AG read that as an implicit determination by the Historical Commission that filing the waiver was not an action "pursuant to subsection (a)" and therefore did not need the State Building Commission's blessing, citing Memphis Publ'g. Co. v. Tennessee Petroleum Underground Storage Tank for the implicit-decision principle.

The opinion was a procedural assessment, not a substantive judgment about whether the busts should be relocated. The substantive decision was the Historical Commission's, made on the record and through the administrative-law-judge process required by § 4-1-412(c)(4)-(5).

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The Tennessee Heritage Protection Act has been amended in subsequent legislative sessions; verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the Tennessee Heritage Protection Act?
A: Tenn. Code Ann. § 4-1-412, enacted in 2016, prohibits the removal, renaming, relocation, alteration, rededication, or other disturbance of memorials regarding historic conflicts, entities, events, figures, or organizations on public property without a waiver from the Tennessee Historical Commission. The 2016 statute followed national debates over Confederate memorials and was designed to centralize disposition decisions in the state Historical Commission rather than leaving them to individual public entities.

Q: What did "memorial" cover?
A: Tenn. Code Ann. § 4-1-412(a)(7)(B) defined "memorial" to include busts dedicated on public property in honor of any historic figure. The Forrest, Farragut, and Gleaves busts were all within that definition.

Q: Who else might have been an appropriate petitioner?
A: The opinion mentioned the Tennessee State Museum (under the Douglas Henry State Museum Commission, created in 2009 with sole governing authority over the museum) and the Department of General Services (with duties to take care of and preserve the capitol's second floor under § 4-8-101(a)(2)). The opinion explicitly said multiple entities could each qualify under § 4-1-412(c)(1)'s "exercising control" standard.

Q: Why did the State Building Commission concurrence question matter?
A: Section 4-8-302(b) is a structural check on State Capitol Commission decisions: actions "pursuant to subsection (a)" need State Building Commission concurrence. If filing the petition was such an action, then a single body (the State Capitol Commission) could not move on its own. The General Assembly had written to the Historical Commission asserting that concurrence was missing.

Q: How did the Historical Commission resolve the concurrence issue?
A: By proceeding with the petition over the General Assembly's objection. The Historical Commission held the initial hearing on October 16, 2020, held a final hearing with an administrative law judge on March 9, 2021, and issued a final order granting the petition the next day. The opinion read this as an implicit determination that concurrence was not required.

Q: Did this opinion settle the concurrence question for future cases?
A: Not really. The opinion identified two plausible readings and pointed to the Historical Commission's implicit determination, rather than choosing the better reading on its own. A future case in which a court directly addressed § 4-8-302(b) and the Heritage Protection Act could reach a different conclusion.

Q: What happened to the busts?
A: The Historical Commission granted the petition and ordered the busts relocated to the Tennessee State Museum. The opinion noted the State Capitol Commission's policy that placement of statues and memorials inside the capitol "is not intended to be permanent" and that they "may be transferred to the Tennessee State Museum for periodic display within their assigned exhibit areas."

Background and statutory framework

The State Capitol Commission was created by Tenn. Code Ann. § 4-8-301 and given the powers and duties enumerated in § 4-8-302(a): formulating a master plan for the restoration and preservation of the capitol, establishing policies controlling furnishings, governing maintenance, and governing the capitol's use for nongovernmental activities. Section 4-8-302(b) added the concurrence requirement for "[a]ll actions of the [State Capitol C]ommission pursuant to subsection (a)."

The Heritage Protection Act layered a separate process on top. Under § 4-1-412(b)(1), no covered memorial on public property could be removed, renamed, relocated, altered, rededicated, or otherwise disturbed without a waiver from the Tennessee Historical Commission. Section 4-1-412(c) set up the petition-and-hearing process. The petitioner had to be a "public entity exercising control of a memorial" (§ 4-1-412(c)(1)). The Historical Commission held an initial hearing, then a final hearing with an administrative law judge present, and issued a final order.

The interpretive question on the petitioner status was a matter of statutory construction. The Heritage Protection Act required only "control," not "exclusive" or "primary" control. Tennessee precedent on plain-meaning interpretation (English Mountain Spring Water Co. v. Chumley, 196 S.W.3d 144 (Tenn. Ct. App. 2005); Tenn. Code Ann. § 1-3-105(b)) supported giving "control" its ordinary meaning, and Freeman Indus. supplied the dictionary definition. The opinion rejected the implicit narrower reading that would require the State Capitol Commission to be the only entity with control over the busts. Vodafone Americas Holdings added a "common-sense" canon that supported the broader reading.

The question on State Building Commission concurrence was harder because it required characterizing the act of filing a petition. If the petition was itself a plan or policy decision (or implementation of one), then § 4-8-302(b) controlled. If the petition was a separate, statutorily-authorized legal action under the Heritage Protection Act, then it was not "pursuant to subsection (a)" and § 4-8-302(b) did not control. The opinion did not pick a side cleanly; it laid out both readings and recorded the Historical Commission's implicit choice of the second reading.

Citations and references

Statutes (as of 2021):
- Tenn. Code Ann. § 4-1-412 (Tennessee Heritage Protection Act of 2016)
- Tenn. Code Ann. § 4-1-412(a)(7)(B), (b)(1), (c), (c)(1), (c)(4)-(5)
- Tenn. Code Ann. § 4-8-101(a)(2); § 4-8-301; § 4-8-302(a), (a)(1)-(4), (b)
- Tenn. Code Ann. §§ 4-20-301, -303, -304 (Douglas Henry State Museum Commission)
- Tenn. Code Ann. § 1-3-105(b) (ordinary meaning)

Cases:
- English Mountain Spring Water Co. v. Chumley, 196 S.W.3d 144 (Tenn. Ct. App. 2005) (natural and ordinary meaning)
- Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512 (Tenn. 2005) (definition of "control")
- State v. Strode, 232 S.W.3d 1 (Tenn. 2007) (statutory construction)
- Vodafone Americas Holdings, Inc. & Subsidiaries v. Roberts, 486 S.W.3d 496 (Tenn. 2016) (common-sense construction)
- Memphis Publ'g. Co. v. Tennessee Petroleum Underground Storage Tank, No. 01A01-9607-CH-00300, 1997 WL 445817 (Tenn. Ct. App. May 9, 1997) (implicit decision principle)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2021/op21-07.pdf

Original opinion text

Best-effort reproduction; the linked PDF is authoritative.

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 12, 2021

Opinion No. 21-07

Tennessee Heritage Protection Act – Petition for Waiver Filed by State Capitol Commission

Question 1

Is the State Capitol Commission a "public entity exercising control of a memorial" such that it may file a petition for a waiver under the Tennessee Heritage Protection Act to relocate the Nathan Bedford Forrest, David Glasgow Farragut, and Albert Gleaves memorials that are currently on display in the state capitol building?

Opinion 1

A proper petitioner for a waiver under the Heritage Protection Act need only be "[a] public entity exercising control of a memorial." The Act does not require that the public entity exercise exclusive or even primary control of a memorial before it may file a petition for waiver. The State Capitol Commission does exercise some control of the three memorials by virtue of its power to establish plans and policies for the state capitol building. While there are public entities that arguably also exercise control over the three memorials, the State Capitol Commission is a public entity exercising control of the memorials within the meaning of the Heritage Protection Act and so appears to be an appropriate petitioner under the Act.

Question 2

If the State Capitol Commission is an appropriate entity to file a petition for waiver to relocate the three memorials, did it have authority to do so without the concurrence of the State Building Commission?

Opinion 2

The decision of the State Capitol Commission to file a petition for waiver could be viewed as establishing a plan or policy pursuant to Tenn. Code Ann. § 4-8-302(a), which would require the concurrence of the State Building Commission. But it could also be viewed as a decision to pursue a legal remedy under the Heritage Protection Act, which, arguably, is not an action requiring the concurrence of the State Building Commission. The Tennessee Historical Commission implicitly found the latter when it granted the State Capitol Commission's petition for waiver without requiring it to show concurrence of the State Building Commission.

BACKGROUND

Under the Tennessee Heritage Protection Act of 2016, "no memorial regarding a historic conflict, historic entity, historic event, historic figure, or historic organization that is, or is located on, public property, may be removed, renamed, relocated, altered, rededicated, or otherwise disturbed or altered" without a waiver from the Tennessee Historical Commission. Tenn. Code Ann. § 4-1-412(b)(1) and § 4-1-412(c).

On August 14, 2020, the State Capitol Commission filed with the Tennessee Historical Commission a petition for waiver to relocate the memorial sculptures, busts, of Nathan Bedford Forrest, David Glasgow Farragut, and Albert Gleaves, which are currently located on the second floor of the state capitol building. The petition requests that the memorials be moved to the Tennessee State Museum so that they can be made part of an exhibit honoring Tennessee's military heroes.

The initial hearing on the petition for waiver took place before the Tennessee Historical Commission on October 16, 2020. At the beginning of the hearing, the Historical Commission acknowledged that it had received a letter from the General Assembly informing the commission that it could not properly entertain the petition for waiver because the State Capitol Commission had failed to comply with Tenn. Code Ann. § 4-8-302(b), which requires concurrence by the State Building Commission for actions taken by the State Capitol Commission. After considering the letter, the Tennessee Historical Commission voted to proceed with the initial hearing.

On March 9, 2021, the Tennessee Historical Commission, in the presence of an administrative law judge, held a final hearing on the waiver petition and then issued a final order granting the petition. Among other findings of fact, the Historical Commission found:

• The Albert Gleaves bust was placed in the state capitol sometime between 1939 and 1944. Gleaves was an admiral in the U.S. Navy; he served in the Spanish-American War and World War I.
• The David Glasgow Farragut bust was placed in the state capitol in 1946. Farragut was an officer in the U.S. Navy; he served in several wars, including the Civil War.
• The Nathan Bedford Forrest bust was placed in the state capitol in 1978 in accordance with Senate Joint Resolution 54 (sponsored by Sen. Douglas Henry and adopted on May 4, 1973). Forrest was a lieutenant general in the Confederate army during the Civil War.
• The busts of Gleaves, Farragut, and Forrest are part of the Tennessee State Museum collection.
• Recent action of the State Capitol Commission provides that placement of statues and memorials inside the state capitol is not intended to be permanent. Tennessee State Capitol Commission Policy Regarding Criteria for Commemorative Works, adopted on November 10, 2015, states that "[o]nce accepted, the memorial will be displayed in the Capitol building for a period of time deemed appropriate by the Capitol Commission, after which time they [sic] may be transferred to the Tennessee State Museum for periodic display within their assigned exhibit areas."

ANALYSIS

1. Whether the State Capitol Commission is an appropriate entity to file a waiver petition.

Under the Heritage Protection Act, a petition for waiver may be filed only by "[a] public entity exercising control of a memorial." Tenn. Code Ann. § 4-1-412(c)(1). "Memorial" includes "busts" that have been "dedicated on public property in honor of any . . . historic figure." Id. § 4-1-412(a)(7)(B). Accordingly, only a public entity that exercises "control" of the busts of Nathan Bedford Forrest, David Glasgow Farragut, and Albert Gleaves is entitled to file a petition for waiver to relocate those three busts. The State Capitol Commission is a public entity. Id. § 4-8-301.

Because "control" is undefined by the Act, the "natural and ordinary meaning" of that word prevails. English Mountain Spring Water Co. v. Chumley, 196 S.W.3d 144, 148 (Tenn. Ct. App. 2005); Tenn. Code Ann. § 1-3-105(b). The ordinary meaning of "control" is the "'[p]ower or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee' as well as '[t]he ability to exercise a restraining or directing influence over something.'" Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 518 (Tenn. 2005) (quoting the definition of "control" in Black's Law Dictionary 329 (6th ed. 1990) in construing undefined statutory phrase "controlled by").

Under this definition of "control," the State Capitol Commission exercises control over the Forrest, Farragut, and Gleaves memorials because the General Assembly has granted the State Capitol Commission the authority to direct and manage the state capitol by charging and empowering it to formulate a master plan for the restoration and preservation of the capitol. Tenn. Code Ann. § 4-8-302(a)(1) (creating the State Capitol Commission to "[f]ormulate and develop a plenary master plan and program for the adaptive restoration and preservation of the state capitol, including the building and contiguous grounds."). The General Assembly has also given the commission the authority to establish policies addressing the capitol's furnishings, maintenance, and use, policies which govern and regulate the capitol. Id. § 4-8-302(a)(2) (State Capitol Commission has the power and duty to "establish policy controlling the furnishings, including, but not limited to, wall, floor and window coverings of the state capitol"); id. § 4-8-302(a)(3) and § 4-8-302(a)(4) (the Commission "[e]stablishes policy governing maintenance of the state capitol" and "the use of the state capitol for any nongovernmental activities.").

The three memorials at issue, which are located on the second floor in the state capitol building, are thus necessarily subject to the "control" of the State Capitol Commission by virtue of its power to establish plans and policies for the state capitol building. See Vodafone Americas Holdings, Inc. & Subsidiaries v. Roberts, 486 S.W.3d 496, 535 (Tenn. 2016) (statutes must be construed in a "common-sense" manner).

Other public entities, namely the Tennessee State Museum under the supervision of the Douglas Henry State Museum Commission and the Department of General Services under the supervision of the General Assembly, may also be said to exert some control over the memorials on the second floor in the state capitol building. But that does not mean that the State Capitol Commission is not an appropriate petitioner for a waiver under the Heritage Protection Act. The Act does not require a petitioner to have exclusive or even primary control of the memorial. The Act merely provides that the petitioner must be "[a] public entity exercising control of a memorial." Tenn. Code Ann. § 4-1-412(c)(1). In other words, more than one public entity can be an appropriate petitioner for a waiver under the plain language of the Act. See State v. Strode, 232 S.W.3d 1, 9 (Tenn. 2007) (a court's role is "to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope").

Because the State Capitol Commission exercises "control" within the meaning of the Heritage Protection Act, it appears to be an appropriate public entity to file a petition with the Tennessee Historical Commission for a waiver to relocate the Forrest, Farragut, and Gleaves memorials.

2. Whether the State Capitol Commission was authorized to file its waiver petition without the concurrence of the State Building Commission.

Under Tenn. Code Ann. § 4-8-302(b), "[a]ll actions of the [State Capitol C]ommission pursuant to subsection (a) shall be subject to the concurrence of the state building commission." Thus, the question is whether filing a petition for waiver under the Heritage Protection Act is an action taken by the State Capitol Commission pursuant to subsection (a) of 4-8-302. Subsection 4-8-302(a) provides that it is the power and duty of the State Capitol Commission to formulate a master plan for restoration and preservation of the state capitol. And consistent with that plan, the State Capitol Commission is to establish policies "controlling" the furnishings of the state capitol and policies "governing" the maintenance and use of the state capitol.

On the one hand, one could view the filing of the waiver petition as an action of the State Capitol Commission implementing or establishing a plan or policy under subsection (a), in which case the concurrence of the State Building Commission would be required. For example, as the Tennessee Historical Commission noted at the final hearing, the Tennessee Capitol Commission has established a "Policy Regarding Criteria for Commemorative Works" to address the period of time for which commemorative works are to be displayed inside the Capitol. If the petition for waiver is viewed as implementing this policy, or if the petition for waiver is viewed as establishing an altogether new policy or as formulating a plan under subsection (a), concurrence of the State Building Commission is necessary.

On the other hand, one could view the filing of the waiver petition as a decision by the State Capitol Commission to pursue a legal remedy under the Heritage Protection Act, i.e., not an action pursuant to subsection (a) to create or implement a plan or a policy, in which case the concurrence of the State Building Commission arguably would not be required. Since the Historical Commission was aware of the issue regarding the concurrence of the State Building Commission and nevertheless entertained and granted the State Capitol Commission's petition for waiver without that concurrence, the Historical Commission implicitly found that filing the petition was not an action taken by the State Capitol Commission pursuant to subsection 4-8-302(a) and so did not require Building Commission concurrence. See Memphis Publ'g. Co. v. Tennessee Petroleum Underground Storage Tank, No. 01A01-9607-CH-00300, 1997 WL 445817, at *8 (Tenn. Ct. App. May 9, 1997) (finding an issue squarely before court was impliedly decided because there was no other plausible construction of the court's decision).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:

The Honorable Randy McNally
Lieutenant Governor
425 Rep. John Lewis Way N.
Suite 700 Cordell Hull Building
Nashville, TN 37243

The Honorable Cameron Sexton
House Speaker
425 Rep. John Lewis Way N.
Suite 600 Cordell Hull Building
Nashville, TN 37243