This is a suit by the Board of Commissioners of Shelby County in which they are asking the court to issue a writ of mandamus to require the State Registrar of Vital Records “to investigate any and all irregularities or possible violations of law involving statements on the death certificate of Mr. (Elvis) Presley, including a thorough, objective inspection of all medical records surrounding his death.”
The defendant filed a motion to dismiss this case, which was sustained by the lower court and the suit was dismissed. Here, the plaintiffs are appealing and presenting two issues to the appellate court to determine. The appellate court affirms the ruling of the lower court.
BOARD OF COUNTY COMMISSIONERS OF SHELBY COUNTY, Tennessee,
Paula TAYLOR, State of Tennessee Registrar of Vital Records,
Aug. 12, 1994.
Appeal from the Chancery Court of Davidson County at Nashville, Tennessee
William L. Gibbons, Donnie E. Wilson, Memphis, TN.
Sue A. Sheldon, Nashville, TN.
This is a suit by the Board of Commissioners of Shelby County seeking a mandamus to require the State Registrar of Vital Records “to investigate any and all irregularities or possible violations of law involving statements on the death certificate of Mr. (Elvis) Presley, including a thorough, objective inspection of all medical records surrounding his death.” The defendant filed a motion to dismiss for failure to state a claim for which relief can be granted. The Trial Court sustained the motion and dismissed the suit, stating:
The Court finds that the investigatory authority provided to the State Registrar by the above statutory provisions is discretionary only, not ministerial. The courts of this state cannot and do not issue writs of mandamus to require public officials to perform discretionary acts, but only those which are purely ministerial in nature….
The Board has appealed and presented the following issues:
Did the Chancery Court err in dismissing the petitioner’s action for a writ of mandamus on the basis that the authority given the State Registrar by state statute to investigate irregularities or false information on death certificates is merely discretionary rather than mandatory?
Did the Chancery Court err in failing to hold that, even if the statutory authority given to the State Registrar to investigate irregularities or false information on death certificates is discretionary in nature, an abuse of such statutory discretion may be grounds for issuance of a writ of mandamus?
A motion to dismiss for failure to state a claim upon which relief can be granted admits all relevant and material averments in the complaint, but asserts that such facts do not constitute a cause of action. League Central Credit Union v. Mattern, Tenn.App.1983, 660 S.W.2d 787.
The failure to state a claim for which relief can be granted is determined from an examination of the complaint alone. Wolcott’s Fin. Serv., Inc. v. McReynolds, Tenn.App.1990, 807 S.W.2d 708. It is the equivalent of a demurrer under former practice and is a test of the sufficiency of the leading pleading. Cornpropst v. Sloan, Tenn.1975, 528 S.W.2d 188.
When a complaint is tested by a Rule 12.02(6) motion to dismiss, the reviewing court must take all well-pleaded, material allegations as true and construe the complaint liberally in plaintiff’s favor. Dobbs v. Guenther, Tenn.App.1992, 846 S.W.2d 270.
A complaint should not be dismissed for failure to state a claim unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Sullivant v. Americana Homes, Inc., Tenn.App.1980, 605 S.W.2d 246.
The complaint alleges:
- Plaintiff is the legislative body of Shelby County.
- Defendant is the state custodian of records of death.
- Elvis Aaron Presley died August 16, 1977.
- The Shelby County Medical Examiner “issued a death certificate pursuant to requirements of state law” on October 20, 1977.
- Said certificate stated the causes of death were “hypertensive heart disease” and “atherosclerotic heart disease,” and the manner of death as “natural.”
- Since October 20, 1977, “new information has surfaced indicating that false and/or misleading statements may have been entered on said death certificate and that the actual cause of death is not set forth thereon.”
- T.C.A. § 68-3-105(b) declares unlawful a willful and knowing false statement on a death certificate.
- T.C.A. § 68-3-105(a) grants to defendant authority to investigate irregularities or violations of law.
- T.C.A. § 68-3-208 provides defendant access to medical records relating to death certificates.
- On April 29, 1991, the Board adopted a resolution (exhibited to the complaint) requesting an investigation by defendant.
- Said resolution was conveyed to defendant.
- Defendant responded that information was reviewed when the certificate was filed and no further action would be taken.
- Counsel for the Board notified defendant that the resolution of the Board stated facts which (bring into question) the cause of death stated in the certificate.
- No response was received to said notice.
- On December 16, 1991, the Board directed its counsel to file a declaratory judgment and/or mandamus action against defendant.
- The Board’s counsel advised the State Attorney General of the two resolutions, and received a response that, at the request of defendant, the Chief Medical Examiner of the State of Tennessee had examined all relevant documents and concluded that there was insufficient reason to conclude that any irregularities or violations of law had occurred in connection with the certificate.
- The State Chief Medical Examiner acknowledged that he did not analyze the autopsy and other relevant records or compare same with the death certificate, and that the Chief Medical Examiner was involved in deciding the cause of death in the certificate while acting as deputy medical examiner of Shelby County.
- Defendant has failed to make a proper objective investigation or to “study the issue comprehensively.”
- It is the affirmative duty of defendant to make the requested investigation.
- There is no other adequate remedy for such failure.
- Defendant refuses to perform her said duty.
The resolution of the Board attached to the complaint states:
Whereas, Elvis Aaron Presley, a citizen of Memphis, Shelby County, Tennessee, died at his home under unusual circumstances and of unknown causes on August 16, 1977; and
Whereas, Dr. Jerry T. Francisco, Shelby County Medical Examiner, in conjunction with pathologists at Baptist Memorial Hospital conducted an official investigation, including the performance of an autopsy, to determine the cause and manner of Mr. Presley’s death; and
Whereas, on or about October 20, 1977, Dr. Francisco signed and issued a Certificate of Death identifying the cause of Mr. Presley’s death as “hypertensive heart disease” with “atherosclerotic heart disease” as a contributing factor and the manner of death as “natural;” and
Whereas, the autopsy documents recently published in a book entitled The Death of Elvis: What Really Happened by Charles C. Thompson, II and James P. Cole (Delacorte Press, 1991) disclose the following:
- That final and complete toxicology reports from Bio-Science Laboratories of Van Nuys, California, and the Orange County (California) Coroner’s Office conclude that Mr. Presley’s death resulted from an overdose of multiple drugs, otherwise known as “polypharmacy.”
- That pathologists at Baptist Memorial Hospital, including recognized authorities on hypertension, discovered no evidence of heart disease and unanimously concluded that Mr. Presley died of a multiple drug overdose.
- That leading medical authorities acting as consultants to Baptist Memorial Hospital, including Dr. George Lundberg of the University of California at Davis; Dr. Robert Stivers, Fulton County (Ga.) Medical Examiner; Robert Cravey, Chief Forensic Toxicologist of the Orange County (California) Coroner’s Office, and Dr. Irving Sunshine of Case Western Reserve University reviewed the entire autopsy record, found no significant medical evidence to support Dr. Jerry T. Francisco’s official ruling, and concluded that Mr. Presley died of a multiple drug overdose.
- That Dr. Francisco’s own outside consultants, Dr. Robert Blanke of the Medical College of Virginia and Dr. Brian Finkle of the University of Utah, have complained that the Shelby County Medical Examiner’s public explanation of his official ruling in the Elvis Presley case distorted and misrepresented their conclusions.
Whereas, Dr. E. Eric Muirhead, Chief Pathologist at Baptist Memorial Hospital who had charge of the Elvis Presley autopsy, publicly confirmed the documented findings of the aforementioned book (The Commercial Appeal, January 5, 1991); and
Whereas, all these elements, when taken together, leave the unmistakable impression that false and/or misleading statements may have been entered on the death certificate of Elvis Presley and that the actual cause of death has been covered up;….
-First Issue: Discretionary or Mandatory-
T.C.A. § 68-3-104 reads as follows:
State registrar.–(a) The commissioner shall: (1) Appoint a state registrar of vital records, herein referred to as the state registrar, who shall be qualified in accordance with classification standards of education and experience; and (2) In case of a vacancy in the office of state registrar, immediately appoint a successor. (b) The state registrar: (1) Under the supervision of the commissioner, shall act as agent of the commissioner and: (A) Shall have charge of the office of vital records and act as the custodian of all the certificates and records received by the state registrar and perform such other duties as the commissioner may prescribe; and (B) Shall be charged with the execution of this chapter and of the regulations of the department throughout the state and have supervisory power over the local registrars and deputy local registrars; (2) Shall prescribe, with the approval of the department, furnish, and distribute such forms as are required by this chapter and the rules and regulations issued hereunder or prescribe such other means for transmission of records as will accomplish the purpose of complete and accurate registration; (3) Shall assist in preparing and publishing reports of vital statistics of this state and such other reports as may be required by the department; (4) May establish or designate additional offices in the state to aid in the administration of the statewide system of vital records; (5) May delegate such functions and duties vested in the state registrar to employees of the office of vital records and to employees of an office established or designated under subdivision (b)(4); and (6) Shall provide copies of certificates or reports required under this chapter or other information derived from such certificates or reports as the state registrar shall determine are necessary to local health agencies for local health planning and program activities. The state registrar shall establish a schedule for such transmittal with each local health agency. The records or other information shall remain the property of the office of vital records and the uses which may be made of such records or other information shall be governed by the state registrar. A schedule for the disposition of the certificates, reports or data provided under this section and § 68-3-103 shall be established by the state registrar. [Acts 1977, ch. 128, § 3; T.C.A., § § 53-404, 53-405.]
It is seen that some functions of the registrar are assigned by the word, “shall,” and some are assigned by the word, “may.” It may reasonably be inferred that the word, “shall,” is intended to designate a positive affirmative duty and that the word, “may” designates permissive action. The only function assigned to the registrar that might have some relation to this suit is found in subsection (b)(1)(B) which states that the registrar:
(B) Shall be charged with the execution of this chapter and of the regulations of the department throughout the state and have supervisory power over the local registrars and deputy registrars.
It is arguable that the registrar has a mandatory duty to see that the statutory plan of recording vital statistics is carried out. However, the complaint alleges no failure to see that the statutory plan of recording vital statistics is being carried out.
T.C.A. § 68-3-105 provides in pertinent part as follows:
Violations–Enforcement–Penalties.–(a)(1) The state registrar has the authority to investigate cases of irregularities or violations of law, personally or by an accredited representative, and all registrars shall aid the state registrar, upon request, in such investigations. (2) When the state registrar shall deem it necessary, the state registrar shall report cases of violations of any of the provisions of this chapter to the district attorney general who shall forthwith initiate and promptly follow up the necessary court proceedings against the person alleged to be responsible for the violation of law. (3) Upon request of the department, the attorney general and reporter shall likewise assist in the enforcement provisions of this chapter. (b) It is unlawful for any person to: (1) Willfully and knowingly make any false statement in a certificate, record or report required to be filed under this chapter, or in an application for an amendment thereof or in an application for a certified copy of a vital record, or willfully and knowingly supply false information intending that such information be used in the preparation of any such report, record or certificate, or amendment thereof;….
In 73 Am.Jur.2d, Statutes § § 22 and 24, pp. 281, 282, 283, is found the following selected text:
The intention of the legislature as to the mandatory or directory nature of a particular statutory provision is determined primarily from the language thereof. Words or phrases which are generally regarded as making a provision mandatory include “shall,” and “must.” On the other hand, a provision couched in permissive terms is generally regarded as directory or discretionary. This is true of the word “may,” or “authorizes,” or “power,” or the phrase “it is lawful,” especially where the act to be done does not affect third persons and is not clearly beneficial to them, or to the public generally….
An imperative obligation is sometimes regarded as imposed by a statutory provision, notwithstanding the fact that it is couched in permissive, directory, or enabling language, such as “may,” or “it is lawful,” or “it shall be lawful,” or “authority,” or “power and authority,” or “authorized and empowered.” This is true where the sense, purpose, or policy of a statute requires it, or where such construction is necessary to give effect to the clear intention of the legislature. The fact that a contrary construction would render the statute obnoxious to some constitutional inhibition may indicate such intention. However, permissive, directory, or enabling language of a statute is presumed to be used in its ordinary sense, unless it would manifestly defeat the object of the provision.
In the present case, this Court finds no occasion to interpret the grant of authority to investigate as a mandate to do so in every case in which a publication or other information gives rise to a suspicion that a portion of a death certificate designating cause of death “may be” inaccurate.
The fact of death might be vital to the decision of whether a death certificate should be filed; but the opinion of the maker of the certificate as to cause of death is not in the same category.
It is noteworthy that subsection (a)(c) provides for reports to the district attorney general “when the State Registrar shall deem it necessary,” which is a clear provision of discretion for such action by the defendant.
If the complaint had stated as a fact that a violation of T.C.A. § 68-3- 105(b)(1) had occurred, then it would be arguable that the registrar had a duty to investigate such violation. However, the complaint does not allege that such a violation has in fact occurred. It states only that:
… All these elements, when taken together, leave the unmistakable impression that false and/or misleading statements may have been entered on the certificate…. (Emphasis supplied.)
Such a suggestion of the possibility of a violation is an inadequate basis upon which to base a mandatory duty of investigation. Appellant’s brief cites no part of the record where this Court might find an allegation of fact that a violation of law occurred in the preparation of the subject certificate of death. Both the complaint and its exhibit are confined to “what might have been” as suggested by hearsay in a book, newspaper, or public statement of an individual.
The statute imposes upon the registrar no mandatory duty of investigation except as she is “charged with the execution of this chapter” which is seeing that the system is operating as intended. The authority to investigate is not a mandatory duty to investigate, especially in the absence of a serious allegation of the actual occurrence of a violation.
If the duty of an official to perform an act is non discretionary, mandamus is a proper remedy even though the existence of that duty must be determined and adjudicated by a court in the mandamus suit. State, ex rel SCA Chemical Waste Services, Inc. v. Konigsberg, Tenn.1982, 636 S.W.2d 430.
Performance of a purely administrative duty may be enforced by mandamus. Brown v. State, ex rel, Jubilee Shops, Inc., 221 Tenn. 283, 426 S.W.2d 192 (1968).
An act is ministerial, and subject to mandamus, when there is no room for the exercise of discretion because the act is a positive command of the law, but where the act to be done involves the exercise of discretion or judgment, it is discretionary and may not be compelled. Lamb v. State, ex rel Kisabeth, 207 Tenn. 159, 338 S.W.2d 584 (1960).
Mandamus will not lie to control official judgment or discretion. Byram v. City of Brentwood, Tenn.App.1991, 833 S.W.2d 500.
An act is discretionary and will not support the granting of a mandamus to compel performance when an official has lawful authority to determine of his own will whether or not he will perform the act, where the act is truly discretionary the writ of mandamus can only compel the official to exercise his discretion one way or another; it cannot dictate how the discretion is to be exercised. Bradley v. State, ex rel, Haggard, 222 Tenn. 535, 438 S.W.2d 738 (1969).
The rule is so general and obvious as to be almost axiomatic, that a public official, clothed with discretionary or quasi judicial power, as contradistinguished from mere ministerial duty, cannot be coerced by mandamus or restrained by injunction in the exercise of his judgment under that power; otherwise, the court would substitute its judgment for his, which is not permissible. North British Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155 (1901).
It is arguable that the defendant may have a duty to investigate offenses which have actually occurred, but the complaint does not state that an offence has occurred and therefore does not state a claim for which the arguable duty may be compelled. It would be ridiculous to postulate that the defendant is under a non-discretionary duty to investigate to determine whether or not any irregularity or law violation occurred in respect to every death certificate received for registration. Consequently, the defendant must be presumed to have discretion as to whether such investigation should be made in a particular case.
This Court agrees with the Trial Court that the action desired by the Board is discretionary and not mandatory; and that it not therefor be forced by mandamus.
-Second Issue: Abuse of Discretion-
The Commission concedes that no Tennessee authority requires the issuance of a mandamus where discretion has been abused.
Moreover, if, as previously discussed, the complaint fails to state a basis for requiring the discretionary act, it likewise fails to state facts which show an abuse of discretion in failing to perform the discretionary act.
Appellant cites a federal trial court opinion in which the Court overruled a motion to dismiss an action to compel the Environmental Protection Agency to enforce the Clean Water Act. The opinion does not state what facts were alleged in the complaint to trigger the duty to act.
Other authorities from other jurisdictions cited by appellant have been examined. They do not support appellant’s insistence that the complaint in this case states facts which show abuse of discretion and justify the issuance of a mandamus.
Although not pled or discussed in the briefs, it should be noted that county officers and boards may bring mandamus to compel the performance of duties over which they have supervision or the performance of which is necessary to the performance of their own duties; but they are not entitled to mandamus to compel the performance of duties by other officers over which they have no supervision and where a failure to perform will not prevent the relators from performing any duty of their office or to enforce the performance of acts in which they have no interest or to enforce purely private demands. See 55 C.J.S. Mandamus, 346c, p. 77, notes 58, 59 and 60.
In 52 Am.Jur.2d Mandamus § 392, p. 717 is found the following text:
But a public officer may not institute a mandamus proceeding to compel the performance by another officer or board of a duty in which the relator has no interest and which does not affect the performance of the duties relating to his office. (Citing Rogers v. Meredith, 274 Ala. 179, 146 So.2d 308);; Blanchford v. Gloucester, 331 Mass. 6, 116 N.E.2d 695; Northeast Tarrant County Water Authority v. Trinity River Authority, Tex.Civ.App., 370 S.W.2d 746.
The complaint contains no statement that the defendant is subject to the supervision of the Board or that the Board or Shelby County would in any way be prejudiced by the failure of defendant to perform the acts which the Board seeks to compel by mandamus. The complaint is subject to a motion to dismiss for lack of allegations supporting standing of the Board to bring this action.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the appellant, and its surety. The cause is remanded to the Trial Court for any necessary further proceedings.
Affirmed and Remanded.
LEWIS and CANTRELL, JJ., concur.