Can the Tennessee House of Representatives require visitors to get a ticket before sitting in the public gallery during a session?

Subject

Whether a ticketing system for public access to the chamber galleries of the Tennessee House of Representatives is permissible under Article II, § 22 of the Tennessee Constitution.

Plain-English summary

Representative Vincent Dixie asked the AG whether the House could require members of the public to obtain a ticket before sitting in the chamber gallery during a legislative session. The AG said yes, on three independent grounds.

First, Article II, § 22 ("the doors of each House and of committees of the whole shall be kept open, unless when the business shall be such as ought to be kept secret") does not guarantee the public a seat. It tells the legislature to keep the doors open. A ticketing system does not close the doors; it manages access to limited seating in a fixed-capacity space. The Tennessee Court of Appeals confirmed in Mayhew v. Wilder (2001) that the constitution does not "provide a right of access to all legislative meetings."

Second, the legislature has rulemaking authority. Article II, § 12 lets each House make "the rules of its proceedings" and gives the General Assembly "all other powers necessary for a branch of the Legislature of a free State." Statutory provisions reinforce this: § 4-8-101(a)(2) makes the Speaker of the Senate and Speaker of the House responsible for preserving the Capitol, § 4-8-101(c) gives the Department of General Services authority to "preserve order among visitors who may be in and around the capitol and annexes," and § 4-8-104(a) vests Capitol security guards with police powers. A ticketing system fits squarely within the legislature's authority to make rules ensuring orderly proceedings.

Third, even if there were a constitutional question, courts would not review it. The political-question doctrine and separation-of-powers principles, as applied in Mayhew, hold that the legislature's decision to limit public access (or close sessions) is "purely political" and "non-reviewable by the courts." The constitutional commitment to make the call is in the legislative article itself; courts will not second-guess.

The AG also notes that ticketing for the Senate and House Galleries of the U.S. Congress is a long-standing practice, illustrating that the underlying technique is unremarkable.

What this means for you

If you are a Tennessee state legislator

The opinion concludes the House has authority to implement a ticketing system for the chamber galleries as a "rule of its proceedings" under Article II, § 12, including its residual power to ensure order and decorum. The opinion treats ticketing as managing limited seating rather than closing the doors.

If you are a member of the public planning to visit the Tennessee Capitol

The opinion holds that Article II, § 22 does not give the public a right of access to legislative sessions; it requires only that the doors be kept open. Gallery seating has a fixed capacity, and the opinion treats a ticketing system as a permissible way to allocate that limited space. The opinion does not set out any procedure visitors must follow.

If you are a journalist covering the legislature

The opinion addresses public access to the chamber galleries under the open-doors clause. It does not discuss press credentials or press-gallery access.

If you are an advocacy group bringing constituents to lobby

The opinion notes that gallery seating capacity is fixed and that a ticketing system is a reasonable means of allocating that space. It does not address how tickets must be distributed among visitors.

If you are litigating government-transparency claims

The opinion relies on Mayhew v. Wilder for the holding that the legislature's decision to hold closed sessions or restrict public access is a "purely political question" non-reviewable by the courts under the separation-of-powers doctrine. On the opinion's analysis, a court would not review the decision to adopt a ticketing system even if it were deemed to close a session.

Common questions

Q: Doesn't 'open doors' mean anyone can walk in?
A: No. The text of Article II, § 22 is "the doors of each House . . . shall be kept open, unless when the business shall be such as ought to be kept secret." It contemplates open sessions but is expressly subject to legislative discretion to close meetings, and the Court of Appeals in Mayhew confirmed that the public has no right of access to legislative meetings as such.

Q: Can a court overturn the legislature's decision to require tickets?
A: On the opinion's analysis, no. It relies on Mayhew v. Wilder, which holds that the legislature's decision to hold closed sessions or restrict public access is a "purely political question" non-reviewable by the courts under the separation-of-powers doctrine. The opinion concludes a court would not review the decision to adopt a ticketing system even if that system were deemed to close a session.

Q: Why doesn't an open-doors requirement guarantee a seat?
A: The opinion reads Article II, § 22 as requiring that the doors be kept open, not as granting a right of access to legislative sessions. Because gallery seating has a fixed capacity, public access is inherently limited to that capacity, and the opinion treats a ticketing system as a reasonable way to allocate the available seats rather than as closing the doors.

Background and statutory framework

Article II of the Tennessee Constitution is the legislative article. Section 22 contains the open-doors clause. Section 12 authorizes each House to set rules of its proceedings and gives the General Assembly residual authority. Section 2 codifies separation of powers: each branch is barred from exercising powers delegated to another.

The Tennessee Court of Appeals decided Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001), against a challenge to closed legislative sessions. The court held that the constitution does not give the public a right to be present, and that the question of when to close sessions is a "purely political question" non-reviewable by the courts. The court relied on the textual commitment to the legislative branch and the residual rulemaking authority in Article II, § 12.

Statutory provisions in Title 4, Chapter 8 govern Capitol facilities and security. Section 4-8-101(a)(2) puts preservation of the Capitol in the hands of the speakers of the Senate and House. Section 4-8-101(c) authorizes the Department of General Services to preserve order. Section 4-8-104(a) gives Capitol security guards police powers.

A ticketing system, on the AG's analysis, is consistent with all three layers (open-doors clause, legislative rulemaking, statutory facility-management authority) and is non-reviewable by courts under separation of powers.

Citations

Constitutional and statutory provisions:

• Tenn. Const. art. II, § 2 (separation of powers)
• Tenn. Const. art. II, § 12 (rules of proceedings; residual power)
• Tenn. Const. art. II, § 22 (open doors)
• Tenn. Code Ann. § 4-8-101(a)(2), (c) (preservation of Capitol; DGS order authority)
• Tenn. Code Ann. § 4-8-104(a) (Capitol security police powers)

Cases:

• Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001), political question; non-reviewable

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-002.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 14, 2024
Opinion No. 24-002

Validity of a Ticketing System for Public Access to the House of Representatives

Question

Is a ticketing system to access the House of Representatives chamber gallery permissible under article II, section 22 of the Tennessee Constitution?

Opinion

Article II, section 22 of the Tennessee Constitution does not prohibit the House of Representatives from using a ticketing system to manage public access to the chamber galleries.

ANALYSIS

We assume that the "ticketing system" referred to in the question implements a requirement that a member of the general public obtain a ticket to enter and be present in the legislative chamber galleries while legislative business is being conducted.

Article II, section 22 of the Tennessee Constitution contemplates that sessions during which the General Assembly conducts its business will be open to the public, but it does not guarantee the public a right of access to legislative sessions. It provides that "[t]he doors of each House and of committees of the whole shall be kept open, unless when the business shall be such as ought to be kept secret." Thus, according to its unambiguous language, the "open door" provision of article II, section 22 is expressly subject to any decision of the General Assembly to close the meetings during which business is conducted.

As the Tennessee Court of Appeals has held, the Tennessee Constitution "does not provide a right of access to all legislative meetings." Mayhew v. Wilder, 46 S.W.3d 760, 772 (Tenn. Ct. App. 2001), perm. to appeal denied Mar. 19, 2001 and Mar. 30, 2001. That is, neither article II, section 22, nor any other provision of the Tennessee Constitution gives the public a right to be present during legislative meetings. Id.

On the most basic level, a "ticketing system" would not run afoul of the "open door" provision of section 22 because it would not close the doors to the public; it would merely manage public access to the limited space that is available. The chamber galleries in the Capitol Building provide seating from which visitors can view legislative proceedings taking place in the chamber. The galleries have a fixed seating capacity. So even though the doors "shall be kept open," public access to the proceedings is inherently limited to the seating capacity in the galleries. That space limitation necessitates a system for managing access and allocating the space available for the public in the galleries. A ticketing system is a common and reasonable way of allocating the available seating.

A ticketing system for access to the chamber galleries would comport with the constitutional and statutory authority vested in the General Assembly to regulate and manage access to the Capitol Building. The Tennessee Constitution empowers "Each House" to establish "the rules of its proceedings" and vests the General Assembly with "all other powers necessary for a branch of the Legislature of a free State." Tenn. Const. art. 2, § 12. Indeed, state law obligates the "speaker of the senate" and the "speaker of the house" to "take care of and preserve" the Capitol Building—including the chambers, galleries, rooms, and hallways—and to keep them "in good order." Tenn. Code Ann. § 4-8-101(a)(2). And to ensure that the General Assembly can conduct business in an orderly way free of disruptions, Capitol security guards "are vested with police powers," id. § 4-8-104(a), and the Department of General Services "has the authority to preserve order among visitors who may be in and around the capitol and annexes," id. § 4-8-101(c).

These statutory and constitutional provisions support the proposition that the House of Representatives has authority to implement a ticketing system to manage access to the chamber galleries as a "rule of its proceedings." Tenn. Const. art. 2, § 12. In particular, the residual clause in article 2, section 12, which grants the General Assembly "all other powers necessary for a branch of the Legislature," would authorize the House to have rules to ensure order and decorum during legislative proceedings so that it may conduct its business efficiently.

And, in any event, the legislature's decision to hold closed sessions or restrict public access—whether by a ticketing system or otherwise—is not subject to court review. Mayhew, 46 S.W.3d at 773 (agreeing that article II, section 22 of the Constitution "contemplates openness in legislative deliberations" but holding that "the [legislature's] decision to hold closed sessions is non-reviewable by the courts").

As the court explained in Mayhew, a legislative decision to limit public access is non-reviewable by the courts under the doctrine of the separation of powers. Article II, section 2 of the Tennessee Constitution prohibits each one of the three branches of government—i.e., the executive, the legislative, and the judicial branches—from exercising the powers delegated to any other one of the three branches.

Accordingly, under the separation-of-powers doctrine, purely "political questions"—i.e., questions within the purview of the legislature—are not subject to review by the judicial branch. Mayhew, 46 S.W.3d at 773-74. And "the question of when to close sessions of the Legislature is a purely political question." Id. at 773. That is because

[t]here is a "textually demonstrable constitutional commitment" of this issue to the legislative department. Not only is it contained in the legislative article, but to hold that the court must judge when the legislative business ought to be kept secret would greatly diminish the Legislature's granted power to make its own rules, and to exercise "all the powers necessary for a branch of the Legislature of a free State."

Id.

Since "the Constitution gives the Legislature the sole right" to decide if and when to close sessions of the Legislature, the Legislature will not be "require[d] . . . to satisfy the judiciary when the Legislature wishes to close its doors." Id. Accordingly, even if a legislative "ticketing system" is deemed to close a session or sessions of the Legislature, a court would not review or undertake to rule on the legislative decision to adopt that ticketing system.

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Vincent Dixie
State Representative
425 Rep. John Lewis Way N.
Suite 408 Cordell Hull Bldg.
Nashville, TN 37243