Must a Tennessee general sessions court clerk report every judicial waiver of litigation tax to the Department of Revenue?

Plain-English summary

Tennessee imposes a litigation tax on civil and criminal cases under §§ 67-4-601 to -606, with court clerks responsible for collecting it and paying it over to the Department of Revenue. Judges in some circumstances can waive or suspend the tax (most commonly under § 40-25-123(b) for an indigent criminal defendant in general sessions court). When that happens, § 67-4-605(c) tells the clerk to "immediately report" the waiver to the Department of Revenue, which then forwards the report to the Board of Judicial Conduct.

A 2002 AG opinion (02-063) had read § 67-4-605(c) as applying only to "unauthorized" judicial waivers, on the theory that requiring a Department of Revenue report and a Judicial Conduct review for every authorized waiver of an indigent defendant's tax produced "absurd results." This 2021 opinion, requested in light of the issue arising again, overrules that reading. The statute is plain: "the clerk of the court shall immediately report" any suspension, waiver, release, or order not to collect, regardless of whether it was authorized. There are no exceptions. The Board of Judicial Conduct, on receiving the report, can decline to take action where the waiver was authorized; that is the appropriate place for the absurd-results filter, not the clerk's reporting duty.

The opinion clarifies a parallel point: § 67-4-605(b) (which makes a clerk personally liable for taxes "not collected and paid over") does not apply to the reporting duty. A clerk who fails to report a judicial waiver is not personally liable for the tax under (b); the tax was lawfully waived. The reporting duty has its own enforcement consequences that arise outside (b).

What this means for you

If you are a Tennessee general sessions court clerk

Report every judicial waiver of a litigation tax to the Department of Revenue, no matter the reason for the waiver. The 2021 opinion forecloses the prior "unauthorized waivers only" practice. Set up an internal protocol: when the judge orders a waiver, fill out the Department of Revenue's prescribed reporting form for that case. Document the date and the basis the judge gave. The clerk's exposure for failing to report is not personal tax liability under (b), but failing to follow the statute could still draw administrative consequences and compromise the integrity of the litigation-tax system.

If you are a Tennessee judge waiving a litigation tax

Expect every waiver to be reported to the Department of Revenue and forwarded to the Board of Judicial Conduct. That is not a sanction or finding of misconduct on its own. It is a statutory transparency mechanism. State the statutory basis for your waiver clearly on the record (most commonly § 40-25-123(b) and the indigency finding), so the Board has a clean record if it reviews the report.

If you are an indigent criminal defendant in general sessions court

The litigation-tax waiver under § 40-25-123(b) is still available to you. The judge can suspend the tax based on equitable considerations of your indigency. The 2021 opinion does not change your access to the waiver; it only changes the back-end reporting flow.

If you are a defense attorney or public defender

Encourage clients to document indigency for the record so judges have a clean basis for waivers, which feeds into clean Board of Judicial Conduct review. The waiver is statutorily authorized under § 40-25-123(b); a Board review of an authorized waiver should result in no action.

If you handle Board of Judicial Conduct intake

You should expect to receive significantly more reports under the corrected reading of § 67-4-605(c). Most will reflect lawful § 40-25-123(b) waivers and warrant no action. The volume should not change the substantive review standard.

Common questions

Q: What changed from the 2002 opinion?
A: The 2002 opinion (02-063) read in an exception for "authorized" waivers, on absurdity grounds. The 2021 opinion concludes the statute can be read literally without absurd results, because the Board of Judicial Conduct can dismiss reports of authorized waivers as appropriate. Statutory construction does not require reading in exceptions to avoid that downstream filter.

Q: Are clerks personally liable for tax money when they fail to report?
A: No. § 67-4-605(b) imposes personal liability when the tax was due and not collected. A judicially waived tax is not "due"; the waiver lawfully removes the obligation. The reporting duty exists separately, and its breach has separate consequences (administrative, not personal-tax liability).

Q: What other statutes waive litigation taxes automatically?
A: §§ 55-9-602 (child-restraint violations) and 55-9-603 (seat-belt violations) provide that no litigation tax is "imposed or assessed" against violators. Those are statutory non-impositions, not judicial waivers, so the clerk's reporting duty under § 67-4-605(c) does not engage; the tax was never owed.

Q: When did this take effect?
A: The opinion was issued June 22, 2021. § 67-4-605(c) was amended by 2021 Tenn. Pub. Acts, ch. 303, effective July 1, 2021, to substitute "council on pensions" for "council on pensions and insurance," but the substantive reporting duty was not changed.

Q: What is the Board of Judicial Conduct?
A: A statutory body (Title 17, chapter 5) that replaced the Court of the Judiciary in 2012 (2012 Tenn. Pub. Acts, ch. 819). It receives complaints and reports about judicial conduct and decides whether to investigate.

Background and statutory framework

Tennessee's litigation-tax statutes (§§ 67-4-601 to -606) impose a small tax on cases filed in state courts to fund driver-education programs, the public defender program, the criminal-injuries compensation fund, and the general fund. Court clerks have the front-line collection duty. § 67-4-605(a) directs them to collect; § 67-4-605(b) imposes personal liability if they fail to collect and pay over. § 67-4-605(c) creates a separate duty: report any judicial suspension, waiver, release, or order not to collect.

§ 40-25-123(b) gives general sessions court judges discretion to suspend court costs and litigation taxes "for any indigent criminal defendant, as in the presiding judge's opinion the equities of the case require." That power is real, and judges use it routinely.

The tension that the 2002 AG opinion tried to resolve: literal compliance with § 67-4-605(c) means thousands of authorized indigent-defendant waivers funnel into Board of Judicial Conduct review, with most generating no action. The 2002 opinion called that "absurd" and limited the reporting duty to unauthorized waivers. The 2021 opinion took a different view: courts presume the legislature said what it meant, and absurd-results doctrine is not a license to read in exceptions when the statutory language is plain. The Board of Judicial Conduct can administratively close reports where the waiver was lawfully made. That preserves the statutory text and the legislative scheme.

The opinion is also a small case study in implied repeal doctrine. § 67-4-605(c) (the reporting duty) and § 40-25-123(b) (the authorization to waive) are read together. The waiver authorization does not impliedly amend the reporting duty; the two coexist, with both triggered by the same act.

Citations

• Tenn. Code Ann. § 67-4-605(c) (clerk duty to report judicial waiver)
• Tenn. Code Ann. § 67-4-605(a), (b) (collection duty and personal liability)
• Tenn. Code Ann. § 40-25-123(b) (indigent defendant waiver authority)
• Tenn. Code Ann. §§ 67-4-601 to -606 (litigation tax framework)
• 2012 Tenn. Pub. Acts, ch. 819 (Court of the Judiciary replaced by Board of Judicial Conduct)
• 2021 Tenn. Pub. Acts, ch. 303 (housekeeping rename within § 67-4-605(c))
• Tenn. Att'y Gen. Op. 02-063 (the 2002 opinion overruled in part)
• Carson Creek Vacation Resorts v. State Dep't of Revenue, 865 S.W.2d 1 (Tenn. 1993)
• Kyle v. Williams, 98 S.W.3d 661 (Tenn. 2003) (statutes mean what they say)
• Hayes v. Gibson Cnty., 288 S.W.3d 334 (Tenn. 2009) (implied repeal disfavored)

Subject

Duty of Court Clerks to Report Judicial Waiver of Litigation Taxes to the Department of Revenue

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2021/op21-10.pdf

Original opinion text

June 22, 2021
Opinion No. 21-10
Duty of Court Clerks to Report Judicial Waiver of Litigation Taxes to the Department of
Does Tennessee Code Annotated § 67-4-605(c) require general sessions court clerks to
report to the Department of Revenue all general sessions court judges who, pursuant to Tenn. Code
Ann. § 40-25-123(b), suspend litigation taxes for indigent criminal defendants?
Yes. Tennessee Code Annotated § 67-4-605(c) requires a court clerk, including the clerk
of a court of general sessions, to report a judge's suspension of "any privilege tax on litigation."
If so, how does Tenn. Code Ann. § 67-4-605(b) apply to court clerks if they do not report
Tennessee Code Annotated § 67-4-605(b) has no application to court clerks who do not
report a judicial suspension of litigation taxes. Section 67-4-605(b) applies only to a clerk who
fails or refuses to collect and pay over to the Department of Revenue litigation taxes that have not
been judicially suspended, in which case it imposes liability for the tax on the clerk. Since § 67-
4-605(b) does not deal with a clerk's failure to report a judicial waiver of a litigation tax, it simply
has no application to general sessions court clerks who do not report a judicial waiver of litigation
1. The clerks of the various courts in Tennessee generally have a duty to collect
litigation taxes imposed on civil and criminal cases instituted in this State. See Tenn. Code Ann.
§§ 67-4-601 to - 606. Litigation taxes help finance the State's general fund, as well as an array of
important state and local endeavors, such as driver education programs, the public defender
program, and the criminal injuries compensation fund. See id. § 67-4-606. For that reason, court
clerks are required to collect and pay over litigation taxes to the Department of Revenue, and a
clerk who fails or refuses to do so is personally liable for the tax. Id. § 67-4-605(a) and (b).
STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
June 22, 2021
Opinion No. 21-10
Duty of Court Clerks to Report Judicial Waiver of Litigation Taxes to the Department of
Revenue
Question 1
Does Tennessee Code Annotated § 67-4-605(c) require general sessions court clerks to
report to the Department of Revenue all general sessions court judges who, pursuant to Tenn. Code
Ann. § 40-25-123(b), suspend litigation taxes for indigent criminal defendants?
Opinion 1
Yes. Tennessee Code Annotated § 67-4-605(c) requires a court clerk, including the clerk
of a court of general sessions, to report a judge’s suspension of “any privilege tax on litigation.”
The statute contains no exceptions.
Question 2
If so, how does Tenn. Code Ann. § 67-4-605(b) apply to court clerks if they do not report
general sessions court judges who suspend litigation taxes for indigent defendants?
Opinion 2
Tennessee Code Annotated § 67-4-605(b) has no application to court clerks who do not
report a judicial suspension of litigation taxes. Section 67-4-605(b) applies only to a clerk who
fails or refuses to collect and pay over to the Department of Revenue litigation taxes that have not
been judicially suspended, in which case it imposes liability for the tax on the clerk. Since § 67-
4-605(b) does not deal with a clerk’s failure to report a judicial waiver of a litigation tax, it simply
has no application to general sessions court clerks who do not report a judicial waiver of litigation
taxes for indigent defendants.
ANALYSIS
1. The clerks of the various courts in Tennessee generally have a duty to collect
litigation taxes imposed on civil and criminal cases instituted in this State. See Tenn. Code Ann.
§§ 67-4-601 to - 606. Litigation taxes help finance the State’s general fund, as well as an array of
important state and local endeavors, such as driver education programs, the public defender
program, and the criminal injuries compensation fund. See id. § 67-4-606. For that reason, court
clerks are required to collect and pay over litigation taxes to the Department of Revenue, and a
clerk who fails or refuses to do so is personally liable for the tax. Id. § 67-4-605(a) and (b).
Judges, though, are authorized to suspend litigation taxes in certain instances. 1 Pertinent
here, general sessions court judges may "suspend the court costs and the litigation tax as required
by §§ 67-4-602 - 67-4-606, for any indigent criminal defendant, as in the presiding judge's opinion
the equities of the case require." Id. § 40-25-123(b). And whenever a judge suspends or waives
any litigation tax, the court clerk has a statutory duty-without exception-to make a report to the
Department of Revenue.
If the judge of any court suspends, releases, waives, remits or orders the clerk of
the court not to collect any privilege tax on litigation, or in any other manner
releases any party from liability for any privilege tax on litigation, the clerk of the
court shall immediately report such suspension, release, waiver, remission, or order
to not collect such tax, to the department in such manner as shall be prescribed by
the department, and the commissioner or the commissioner's delegate shall
immediately, upon receipt of such a report from any clerk of a court, present such
information to the board of judicial conduct, which court shall take appropriate
action pursuant to title 17, chapter 5. The commissioner or the commissioner's
delegate shall also report such information to the council on pensions and insurance.
Id. § 67-4-605(c) (as amended by 2021 Tenn. Pub. Acts, ch. 303 to substitute "council on pensions" for
"council on pensions and insurance," effective July 1, 2021).
The clerk's duty to report a general sessions court judge who suspends or waives a litigation
tax pursuant to Tenn. Code Ann. § 40-25-123(b) was the subject of Tenn. Att'y Gen. Op. 02-063,
which concluded that the reporting requirement in Tenn. Code Ann. § 67-4-605(c) is limited to
only "unauthorized waivers of the litigation tax by judges." Tenn. Att'y Gen. Op. 02-063, 2002
WL 1041355 at 3 (May 16, 2002). That conclusion was based on the notion that a literal reading
of § 40-25-123(b) and § 67-4-605(c) together would "yield absurd results" because it would
"require a general sessions clerk to immediately report to the Department of Revenue and the
Department, in turn, to the Court of the Judiciary,² whenever litigation taxes are suspended by a
general sessions judge" even when the judge was appropriately exercising his or her statutory
authority to suspend litigation taxes and would, therefore, not be liable for sanctions by the Court
of the Judiciary. Id. And requiring a report under those circumstances would be "absurd," because
"it makes no sense for the clerk to immediately report the act to the Department of Revenue to, in
turn, make a report to the Court of the Judiciary" when the judge had done nothing to warrant
review or sanctions by the Court of the Judiciary. Id.
Presented now with a request to revisit the question, this Office is constrained to conclude
that § 40-25-123(b) and § 67-4-605(c) can be read together without yielding absurd results and
that, therefore, there is no reason or need to construe § 67-4-605(c) to mean anything other than
1 For instance, Tenn. Code Ann. § 55-9-603, which generally prohibits the operation of a vehicle without wearing a
seat belt, provides that "[n]o litigation tax levied pursuant to title 67, chapter 4, part 6, shall be imposed or assessed
against anyone convicted of a violation of this section." Similarly, Tenn. Code Ann. § 55-9-602, which generally
prohibits the operation of a vehicle without a child passenger restraint system, provides that "[n]o litigation tax levied
pursuant to title 67, chapter 4, part 6, shall be imposed or assessed against anyone convicted of a violation" of certain
parts of that statute.
2 The Court of the Judiciary has been replaced by the Board of Judicial Conduct. See 2012 Tenn. Pub. Acts, ch. 819.
2
Judges, though, are authorized to suspend litigation taxes in certain instances.1
Pertinent
here, general sessions court judges may “suspend the court costs and the litigation tax as required
by §§ 67-4-602 – 67-4-606, for any indigent criminal defendant, as in the presiding judge’s opinion
the equities of the case require.” Id. § 40-25-123(b). And whenever a judge suspends or waives
any litigation tax, the court clerk has a statutory duty—without exception—to make a report to the
Department of Revenue.
If the judge of any court suspends, releases, waives, remits or orders the clerk of
the court not to collect any privilege tax on litigation, or in any other manner
releases any party from liability for any privilege tax on litigation, the clerk of the
court shall immediately report such suspension, release, waiver, remission, or order
to not collect such tax, to the department in such manner as shall be prescribed by
the department, and the commissioner or the commissioner’s delegate shall
immediately, upon receipt of such a report from any clerk of a court, present such
information to the board of judicial conduct, which court shall take appropriate
action pursuant to title 17, chapter 5. The commissioner or the commissioner’s
delegate shall also report such information to the council on pensions and insurance.
Id. § 67-4-605(c) (as amended by 2021 Tenn. Pub. Acts, ch. 303 tosubstitute“council onpensions”for
“council on pensions andinsurance,”effective July 1, 2021).
The clerk’s duty to report a general sessions court judge who suspends or waives a litigation
tax pursuant to Tenn. Code Ann. § 40-25-123(b) was the subject of Tenn. Att’y Gen. Op. 02-063,
which concluded that the reporting requirement in Tenn. Code Ann. § 67-4-605(c) is limited to
only “unauthorized waivers of the litigation tax by judges.” Tenn. Att’y Gen. Op. 02-063, 2002
WL 1041355 at 3 (May 16, 2002). That conclusion was based on the notion that a literal reading
of § 40-25-123(b) and § 67-4-605(c) together would “yield absurd results” because it would
“require a general sessions clerk to immediately report to the Department of Revenue and the
Department, in turn, to the Court of the Judiciary,2
whenever litigation taxes are suspended by a
general sessions judge” even when the judge was appropriately exercising his or her statutory
authority to suspend litigation taxes and would, therefore, not be liable for sanctions by the Court
of the Judiciary. Id. And requiring a report under those circumstances would be “absurd,” because
“it makes no sense for the clerk to immediately report the act to the Department of Revenue to, in
turn, make a report to the Court of the Judiciary” when the judge had done nothing to warrant
review or sanctions by the Court of the Judiciary. Id.
Presented now with a request to revisit the question, this Office is constrained to conclude
that § 40-25-123(b) and § 67-4-605(c) can be read together without yielding absurd results and
that, therefore, there is no reason or need to construe § 67-4-605(c) to mean anything other than
1
For instance, Tenn. Code Ann. § 55-9-603, which generally prohibits the operation of a vehicle without wearing a
seat belt, provides that “[n]o litigation tax levied pursuant to title 67, chapter 4, part 6, shall be imposed or assessed
against anyone convicted of a violation of this section.” Similarly, Tenn. Code Ann. § 55-9-602, which generally
prohibits the operation of a vehicle without a child passenger restraint system, provides that “[n]o litigation tax levied
pursuant to title 67, chapter 4, part 6, shall be imposed or assessed against anyone convicted of a violation” of certain
parts of that statute.
2
The Court of the Judiciary has been replaced by the Board of Judicial Conduct. See 2012 Tenn. Pub. Acts, ch. 819.
what the legislature-in clear and unambiguous language-has said: A court clerk must report a
judge's suspension or waiver of litigation taxes in all instances.
"The most basic rule of statutory construction is to ascertain and give effect to the intention
and purpose of the legislature." Carson Creek Vacation Resorts, Inc. v. State Dep't of Revenue,
865 S.W.2d 1, 2 (Tenn. 1993). In determining legislative intent and purpose, a court must not
unduly restrict or expand a statute's coverage beyond its intended scope. Worley v. Weigels, Inc.,
919 S.W.2d 589, 593 (Tenn. 1996). Rather, a court ascertains a statute's purpose "from the plain
and ordinary meaning of its language within the context of the entire statute without any forced or
subtle construction that would limit or extend the meaning of the language." State v. Flemming,
Furthermore, it is not for the courts to alter or amend a statute. Gleaves v. Checker Cab
Transit Corp., Inc., 15 S.W.3d 799, 803 (Tenn. 2000). A court must not question the
reasonableness of a statute or substitute its own policy judgments for those of the legislature.
Mooney v. Sneed, 30 S.W.3d 304, 306-07 (Tenn. 2000); BellSouth Telecomms., Inc. v. Greer, 972
S.W.2d 663, 673 (Tenn. Ct. App. 1997). Instead, courts must "presume that the legislature says
in a statute what it means and means in a statute what it says." Kyle V. Williams, 98 S.W.3d 661,
664 (Tenn. 2003). Accordingly, courts must construe a statute as it is written. Gleaves, 15 S.W.3d
The language of Tenn. Code Ann. § 67-4-605(c) is plain and clear. Its reporting
requirements apply in all instances: "If the judge of any court suspends, releases, waives, remits
or orders the clerk of the court not to collect any privilege tax on litigation, or in any other manner
releases any party from liability for any privilege tax on litigation, the clerk of the court shall
the department [of revenue] [Emphasis added.] The statute contains no exceptions.
The later enactment of Tenn. Code Ann. § 40-25-123(b) did not impliedly amend Tenn.
Code Ann. § 67-4-605(c) to limit a clerk's reporting duties to only those instances when a judge
lacks statutory authority to waive or suspend a litigation tax. It is well established that the General
Assembly is presumed to know the state of the law on the subject under consideration at the time
it enacts legislation. 3 Neff v. Cherokee Ins. Co., 704 S.W.2d 1, 4 (Tenn. 1986). New statutes
change preexisting law only to the extent expressly declared. Johnson v. Hopkins, 432 S.W.3d
840, 848 (Tenn. 2013). A statute not repealing directly or by implication any previous law is
cumulative to such law. Id. Repeals and amendments by implication are not favored. Id.; Hayes
v. Gibson Cnty., 288 S.W.3d 334, 337 (Tenn. 2009). An amendment by implication can occur
only when the terms of a later statute are so repugnant to an earlier statute that they cannot stand
together. Hayes, 288 S.W.3d at 337. If the enactments are capable of being construed so that they
both may stand, the court should so construe them. Kentucky-Tennessee Clay Co. v. Huddleston,
3 In fact, when the General Assembly has enacted statutes that expressly allow judges to suspend litigation taxes, the
statutes have specifically referred to title 67, chapter 4, part 6. See note 1, supra, and accompanying text.
3
what the legislature—in clear and unambiguous language—has said: A court clerk must report a
judge’s suspension or waiver of litigation taxes in all instances.
“The most basic rule of statutory construction is to ascertain and give effect to the intention
and purpose of the legislature.” Carson Creek Vacation Resorts, Inc. v. State Dep’t of Revenue,
865 S.W.2d 1, 2 (Tenn. 1993). In determining legislative intent and purpose, a court must not
unduly restrict or expand a statute’s coverage beyond its intended scope. Worley v. Weigels, Inc.,
919 S.W.2d 589, 593 (Tenn. 1996). Rather, a court ascertains a statute’s purpose “from the plain
and ordinary meaning of its language within the context of the entire statute without any forced or
subtle construction that would limit or extend the meaning of the language.” State v. Flemming,
19 S.W.3d 195, 197 (Tenn. 2000).
Furthermore, it is not for the courts to alter or amend a statute. Gleaves v. Checker Cab
Transit Corp., Inc., 15 S.W.3d 799, 803 (Tenn. 2000). A court must not question the
reasonableness of a statute or substitute its own policy judgments for those of the legislature.
Mooney v. Sneed, 30 S.W.3d 304, 306-07 (Tenn. 2000); BellSouth Telecomms., Inc. v. Greer, 972
S.W.2d 663, 673 (Tenn. Ct. App. 1997). Instead, courts must “presume that the legislature says
in a statute what it means and means in a statute what it says.” Kyle v. Williams, 98 S.W.3d 661,
664 (Tenn. 2003). Accordingly, courts must construe a statute as it is written. Gleaves, 15 S.W.3d
at 803.
The language of Tenn. Code Ann. § 67-4-605(c) is plain and clear. Its reporting
requirements apply in all instances: “If the judge of any court suspends, releases, waives, remits
or orders the clerk of the court not to collect any privilege tax on litigation, or in any other manner
releases any party from liability for any privilege tax on litigation, the clerk of the court shall
immediately report such suspension, release, waiver, remission or order to not collect such tax, to
the department [of revenue] . . . .” [Emphasis added.] The statute contains no exceptions.
The later enactment of Tenn. Code Ann. § 40-25-123(b) did not impliedly amend Tenn.
Code Ann. § 67-4-605(c) to limit a clerk’s reporting duties to only those instances when a judge
lacks statutory authority to waive or suspend a litigation tax. It is well established that the General
Assembly is presumed to know the state of the law on the subject under consideration at the time
it enacts legislation.3
Neff v. Cherokee Ins. Co., 704 S.W.2d 1, 4 (Tenn. 1986). New statutes
change preexisting law only to the extent expressly declared. Johnson v. Hopkins, 432 S.W.3d
840, 848 (Tenn. 2013). A statute not repealing directly or by implication any previous law is
cumulative to such law. Id. Repeals and amendments by implication are not favored. Id.; Hayes
v. Gibson Cnty., 288 S.W.3d 334, 337 (Tenn. 2009). An amendment by implication can occur
only when the terms of a later statute are so repugnant to an earlier statute that they cannot stand
together. Hayes, 288 S.W.3d at 337. If the enactments are capable of being construed so that they
both may stand, the court should so construe them. Kentucky-Tennessee Clay Co. v. Huddleston,
922 S.W.2d 539, 542 (Tenn. Ct. App. 1995).
3
In fact, when the General Assembly has enacted statutes that expressly allow judges to suspend litigation taxes, the
statutes have specifically referred to title 67, chapter 4, part 6. See note 1, supra, and accompanying text.
Here, Tenn. Code Ann. § 67-4-605(c) and Tenn. Code Ann. § 40-25-123(b) can stand
together, and together they require a clerk to make reports to the Department of Revenue whenever
a judge suspends litigation taxes, regardless of whether the suspension is authorized or
unauthorized. Invocation of the absurdity doctrine is almost never appropriate when a statute is
unambiguous. See Barnhart V. Sigmon Coal Co., Inc., 534 U.S. 438, 459 (2002) (when legislation
is unambiguous, the doctrine may rarely be invoked to override the legislation). Cf. Martin v.
Powers, 505 S.W.3d 512, 518 (Tenn. 2016) (absurdity doctrine is generally employed when
necessary to resolve statutory conflict and to provide for the harmonious operation of the laws).
Indeed, the Tennessee Supreme Court has observed that "[t]he power to disregard a clear statutory
text on the ground that it dictates an absurd result has been subject to criticism in recent years."
Seals v. H & F, Inc., 301 S.W.3d 237, 251 (Tenn. 2010) (citing John F. Manning, The Absurdity
Doctrine, 116 Harv. L Rev. 2387 (2003)). Although the absurdity doctrine remains a part of our
State's statutory construction jurisprudence, the Court cautioned that it is a doctrine that "should
be applied sparingly-only when a result is manifestly absurd, and not simply unpleasant or
peculiar." Id.
Construing the three reporting requirements of Tenn. Code Ann. § 67-4-605(c) to apply in
all instances in which a judge suspends litigation taxes does not produce a result that is "manifestly
absurd." On the contrary, for various reasons explained below, the reporting requirements under
Tenn. Code Ann. § 67-4-605(c) serve specific purposes, and, as policy decisions of the General
Assembly, they should not be second-guessed. See Hughes V. Tennessee Bd. of Probation and
Parole, 514 S.W.3d 707, 722 n. 14 (Tenn. 2017) (courts are not at liberty to disregard express
statutory language or to second-guess policy choices made by the General Assembly); Mooney, 30
S.W.3d at 306-07 (a court must not question the reasonableness of a statute or substitute its own
First, Tenn. Code Ann. § 67-4-605(a) requires the clerk to pay over "any privilege tax
imposed by Tenn. Code Ann. § 67-4-602" to the Department of Revenue. Whether the clerk fails
to pay the tax over to the department due to a judge's authorized or unauthorized waiver of the tax,
the result is the same: the department does not receive the tax.
Second, requiring the Department of Revenue to make reports to the Council on Pensions
and Insurance in all instances in which a judge suspends litigation taxes supports the mission of
the Council. The Council was created to develop and recommend standards and state policy
relating to pensions and insurance for state and local governments within Tennessee. See id. §§ 3-
9-101 to -104. Currently, Tenn. Code Ann. § 67-4-606(a)(3) provides that nearly a third of the
privilege taxes, including the litigation taxes, collected are apportioned to the general fund, which
subsidizes, in turn, compensation and benefits of state employees. Requiring the Department of
Revenue to report to the Council taxes that were not collected by clerks due to judges' suspension
of those taxes is important information for the Council to have for planning and policy purposes.
Third, requiring the department to make reports to the Board of Judicial Conduct in all
instances in which a judge suspends litigation taxes is reasonable. By its express terms, the statute
provides that the report is made so that the Board of Judicial Conduct may "take appropriate action
pursuant to title 17, chapter 5." Tenn. Code Ann. § 67-4-605(c) (emphasis added). If a judge
properly suspends a litigation tax under express statutory authority, the "appropriate action" is no
4
Here, Tenn. Code Ann. § 67-4-605(c) and Tenn. Code Ann. § 40-25-123(b) can stand
together, and together they require a clerk to make reports to the Department of Revenue whenever
a judge suspends litigation taxes, regardless of whether the suspension is authorized or
unauthorized. Invocation of the absurdity doctrine is almost never appropriate when a statute is
unambiguous. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 459 (2002) (when legislation
is unambiguous, the doctrine may rarely be invoked to override the legislation). Cf. Martin v.
Powers, 505 S.W.3d 512, 518 (Tenn. 2016) (absurdity doctrine is generally employed when
necessary to resolve statutory conflict and to provide for the harmonious operation of the laws).
Indeed, the Tennessee Supreme Court has observed that “[t]he power to disregard a clear statutory
text on the ground that it dictates an absurd result has been subject to criticism in recent years.”
Seals v. H & F, Inc., 301 S.W.3d 237, 251 (Tenn. 2010) (citing John F. Manning, The Absurdity
Doctrine, 116 Harv. L Rev. 2387 (2003)). Although the absurdity doctrine remains a part of our
State’s statutory construction jurisprudence, the Court cautioned that it is a doctrine that “should
be applied sparingly—only when a result is manifestly absurd, and not simply unpleasant or
peculiar.” Id.
Construing the three reporting requirements of Tenn. Code Ann. § 67-4-605(c) to apply in
all instances in which a judge suspends litigation taxes does not produce a result that is “manifestly
absurd.” On the contrary, for various reasons explained below, the reporting requirements under
Tenn. Code Ann. § 67-4-605(c) serve specific purposes, and, as policy decisions of the General
Assembly, they should not be second-guessed. See Hughes v. Tennessee Bd. of Probation and
Parole, 514 S.W.3d 707, 722 n. 14 (Tenn. 2017) (courts are not at liberty to disregard express
statutory language or to second-guess policy choices made by the General Assembly); Mooney, 30
S.W.3d at 306-07 (a court must not question the reasonableness of a statute or substitute its own
policy judgments for those of the legislature).
First, Tenn. Code Ann. § 67-4-605(a) requires the clerk to pay over “any privilege tax
imposed by Tenn. Code Ann. § 67-4-602” to the Department of Revenue. Whether the clerk fails
to pay the tax over to the department due to a judge’s authorized or unauthorized waiver of the tax,
the result is the same: the department does not receive the tax.
Second, requiring the Department of Revenue to make reports to the Council on Pensions
and Insurance in all instances in which a judge suspends litigation taxes supports the mission of
the Council. The Council was created to develop and recommend standards and state policy
relating to pensions and insurance for state and local governments within Tennessee. See id. §§ 3-
9-101 to -104. Currently, Tenn. Code Ann. § 67-4-606(a)(3) provides that nearly a third of the
privilege taxes, including the litigation taxes, collected are apportioned to the general fund, which
subsidizes, in turn, compensation and benefits of state employees. Requiring the Department of
Revenue to report to the Council taxes that were not collected by clerks due to judges’ suspension
of those taxes is important information for the Council to have for planning and policy purposes.
Third, requiring the department to make reports to the Board of Judicial Conduct in all
instances in which a judge suspends litigation taxes is reasonable. By its express terms, the statute
provides that the report is made so that the Board of Judicial Conduct may “take appropriate action
pursuant to title 17, chapter 5.” Tenn. Code Ann. § 67-4-605(c) (emphasis added). If a judge
properly suspends a litigation tax under express statutory authority, the “appropriate action” is no
action, so there is no harm in making the report and no reason to ignore the plain statutory
language. What would be-if not "absurd"-at least highly problematic would be a statutory
construction that placed on the clerk the responsibility of determining in each instance in which a
judge suspends litigation taxes whether the suspension is legally authorized or not. The
legislature's policy decision to not put clerks in this untenable position should not be second-
Moreover, construing Tenn. Code Ann. § 67-4-605(c) to apply only when a judge suspends
litigation taxes without statutory authority to do so would effectively amend the statute and
impermissibly limit its scope. It is the prerogative of the General Assembly, not the courts, to
amend statutes. In re Swanson, 2 S.W.3d 180, 187 (Tenn. 1999); 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"); Loftin v.
Langsdon, 813 S.W.2d 475, 480 (Tenn. Ct. App. 1991) (unless "manifest injustice" would result,
a court may not supply words to a statute that would limit the statute's meaning). Had the General
Assembly intended that a clerk's duty to report a judge's suspension of litigation taxes applied
only to unauthorized suspensions, it could have and would have explicitly done so by amending
Tenn. Code Ann. § 67-4-605(c) when it enacted Tenn. Code Ann. § 40-25-123(b)-or when it
enacted other similar statutes, e.g., Tenn. Code Ann. §§ 55-9-602; 55-9-603.⁴
In sum, Tenn. Code Annotated § 67-4-605(c) requires court clerks, including general
sessions court clerks, to report, without exception, a judge's suspension of "any privilege tax on
litigation." This construction allows the statute to stand with Tenn. Code Ann. § 40-25-123(b) and
results in no "manifest absurdity."
2. Under Tenn. Code Ann. § 67-4-605(b), a court clerk, including a general sessions
court clerk, who fails or refuses to collect and pay over to the Department of Revenue the litigation
tax imposed by § 67-4-602 is personally liable for the tax. But subsection 605(b) does not apply
when a general sessions court clerk does not collect and pay the tax because a general sessions
court judge has suspended or waived that litigation tax; in that instance the court clerk would
4 See note 1, supra.
5
action, so there is no harm in making the report and no reason to ignore the plain statutory
language. What would be—if not “absurd”—at least highly problematic would be a statutory
construction that placed on the clerk the responsibility of determining in each instance in which a
judge suspends litigation taxes whether the suspension is legally authorized or not. The
legislature’s policy decision to not put clerks in this untenable position should not be second-
guessed.
Moreover, construing Tenn. Code Ann. § 67-4-605(c) to apply only when a judge suspends
litigation taxes without statutory authority to do so would effectively amend the statute and
impermissibly limit its scope. It is the prerogative of the General Assembly, not the courts, to
amend statutes. In re Swanson, 2 S.W.3d 180, 187 (Tenn. 1999); 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”); Loftin v.
Langsdon, 813 S.W.2d 475, 480 (Tenn. Ct. App. 1991) (unless “manifest injustice” would result,
a court may not supply words to a statute that would limit the statute’s meaning). Had the General
Assembly intended that a clerk’s duty to report a judge’s suspension of litigation taxes applied
only to unauthorized suspensions, it could have and would have explicitly done so by amending
Tenn. Code Ann. § 67-4-605(c) when it enacted Tenn. Code Ann. § 40-25-123(b)—or when it
enacted other similar statutes, e.g., Tenn. Code Ann. §§ 55-9-602; 55-9-603.4
In sum, Tenn. Code Annotated § 67-4-605(c) requires court clerks, including general
sessions court clerks, to report, without exception, a judge’s suspension of “any privilege tax on
litigation.” This construction allows the statute to stand with Tenn. Code Ann. § 40-25-123(b) and
results in no “manifest absurdity.”
2. Under Tenn. Code Ann. § 67-4-605(b), a court clerk, including a general sessions
court clerk, who fails or refuses to collect and pay over to the Department of Revenue the litigation
tax imposed by § 67-4-602 is personally liable for the tax. But subsection 605(b) does not apply
when a general sessions court clerk does not collect and pay the tax because a general sessions
court judge has suspended or waived that litigation tax; in that instance the court clerk would
simply lack the requisite authority to collect and pay the tax to the Department of Revenue.
4
See note 1, supra.
And since § 67-4-605(b) does not deal at all with a clerk's failure to report a judicial waiver
of a litigation tax, it has no application to court clerks who do not report a judicial waiver of
litigation taxes for an indigent defendant. A clerk's failure to report the suspension or waiver of
litigation taxes to the department, however, could lead to other repercussions depending on the
circumstances. See, e.g., Tenn. Code Ann. § 18-1-301(5) (providing that a clerk of court may be
removed from office for neglect of duty).
Suite 716 Cordell Hull Bldg.
6
And since § 67-4-605(b) does not deal at all with a clerk’s failure to report a judicial waiver
of a litigation tax, it has no application to court clerks who do not report a judicial waiver of
litigation taxes for an indigent defendant. A clerk’s failure to report the suspension or waiver of
litigation taxes to the department, however, could lead to other repercussions depending on the
circumstances. See, e.g., Tenn. Code Ann. § 18-1-301(5) (providing that a clerk of court may be
removed from office for neglect of duty).
HERBERT H. SLATERY III
Attorney General and Reporter
ANDRÉE SOPHIA BLUMSTEIN
Solicitor General
LAURA T. KIDWELL
Assistant Solicitor General
Requested by:
The Honorable Mike Bell
State Senator
425 Rep. John Lewis Way N.
Suite 716 Cordell Hull Bldg.
Nashville, TN 37243