Making a Mess: The Indigent Defense Crisis Undermining the Criminal Justice System Throughout Tennessee

By Daniel Horwitz:

This Sunday evening, veteran Wisconsin defense attorneys Dean Strang and Jerry Buting – the trial lawyers who became overnight sensations following the release of the award-winning Netflix documentary “Making a Murderer” – arrived in Nashville to talk criminal justice reform.  The wide-ranging discussion – billed as “A Conversation on Justice” – touched upon several aspects of America’s poorly-functioning criminal justice system from juvenile interrogation to legal ethics.  Most prominently featured, however, was a plea to improve the sorry state of indigent defense in the United States.

“If we are going to keep putting as many people in prison as we do now,” Strang told the sold-out TPAC auditorium, “then we are at least entitled to a reliable determination of guilt.”  (The United States has roughly 5% of the world’s population, but nearly a quarter of the world’s prisoners.)  Buting concurred.  Compensated at just $40 per hour, “Wisconsin’s appointed criminal defense attorneys are the lowest-paid lawyers in the entire country,” he claimed.  For context, Strang added that “it costs me eighty dollars per hour to keep my law firm’s lights on.”

As moderator Stacey Barchenger – who covers the courts and criminal justice beat for The Tennessean – intimated in response, the state of indigent defense in Tennessee is not much better.  In fact, for several reasons, it’s considerably worse.  And the consequences for society – wrongful convictions and a two-track justice system for the rich and poor – are deplorable.

As any casual observer of American crime drama knows, (almost) everyone in the United States who is accused of committing a crime has the right to an attorney.[1]  Additionally, if a person cannot afford an attorney (and more than 80% of defendants fall into this category), then an attorney will be provided at taxpayer expense.  Whether a defendant receives a public defender (a lawyer who is employed full time by the government to represent poor defendants) or an appointed attorney (who is typically, but not always, a solo practitioner) depends on a variety of factors including geography, prior criminal history, and whether there is more than one defendant involved in a particular case.  Although different in several important ways, the pressures facing public defenders and appointed counsel due to inadequate funding – as well as the consequences of those pressures on poor defendants – frequently overlap.

The right to counsel in state criminal cases – guaranteed by the Sixth Amendment to the United States Constitution and incorporated against the states via the Fourteenth – traces back to the Supreme Court’s landmark 1963 decision in Gideon v. Wainright.[2]  Subsequently, the Supreme Court further established that the right to counsel was not merely intended to provide criminal defendants with the euphemistic “warm body with a law degree.”   Instead, the Sixth Amendment is supposed to guarantee the accused a right to “the effective assistance” of counsel as well.[3]

“In practice,” however, “for a variety of reasons, the impact of Gideon has never come anywhere close to reaching its aspirational goals.”  See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harvard Latino L. Rev. __, n. 41 (forthcoming 2016), available at  Although multifaceted, the main reason why the right to competent counsel has remained so illusory for indigent defendants more than fifty years after Gideon is simple: the American public just isn’t willing to pay for it.  Dollar for dollar, taxpayers would prefer to spend their money on virtually anything in the world before paying for free attorneys for poor people who have been accused of committing crimes.  Accordingly, the funding that has been appropriated for indigent defense has never even approached the amount that is actually necessary to afford poor people a meaningful opportunity to defend themselves.

The solutions to this problem, however, are somewhat more complex.  Given the profound unpopularity of criminal defendants – and given that poor people cannot afford to hire lobbyists and generally do not have a receptive audience in most (if any) state legislatures – adequate funding for indigent defense is never likely to come voluntarily.  Instead, courts must embrace their role as enforcers of constitutional rights and either order legislatures to appropriate sufficient funding for indigent defense or refuse to allow prosecutions to go forward until such funding has been provided.  Public Defenders – many of whom handle hundreds of cases at a time – must also begin pushing back against courts that tolerate inadequate funding by refusing to take on caseloads that exceed ethical standards.  And when both legislatures and courts fail to meet their obligations, advocates need to sue them.  Frustratingly, although reformers do achieve the occasional victory in this regard, successes are usually short-lived, and they are always a long time coming.

For its part, though, Tennessee’s nearly wholesale abdication of its responsibility to ensure that poor defendants receive effective representation provides a fantastic case study on how to run an indigent defense system in a way that virtually guarantees it will fail.  Although funded by the General Assembly, the compensation rate for appointed counsel in Tennessee is set by the Tennessee Supreme Court.  Specifically, Tennessee Supreme Court Rule 13 provides that “[t]he hourly rate for appointed counsel in non-capital cases shall not exceed forty dollars ($40) per hour for time reasonably spent in trial preparation and fifty dollars ($50) per hour for time reasonably spent in court.”  This rate has also been unchanged since 1994, meaning that appointed lawyers for poor defendants are typically the lowest paid professionals in the courtroom.  (In contrast, Tennessee’s judges are paid rather handsomely; based on a just-published survey of judicial salaries conducted by the National Center on State Courts, salaries of Tennessee Supreme Court Justices currently rank twelfth-best in the nation, while salaries for judges who sit on lower appellate courts and in trial courts rank ninth.)

There are several obvious problems with Tennessee’s appointed counsel compensation arrangement that are worth highlighting.

First, there is no justifiable basis for compensating “time reasonably spent in trial preparation” less than “time reasonably spent in court.”[4]  Trial preparation – including meeting with defendants, interviewing witnesses, preparing pre-trial motions, conducting legal research, investigating mitigating circumstances, filing discovery requests, and any number of other activities that are essential to effective trial advocacy – are every bit as important as time physically spent in court.[5]  Longstanding U.S. Supreme Court precedent also supports this reality.  As far back as 1932, for example, the Supreme Court observed that a criminal defendant “requires the guiding hand of counsel at every step in the proceedings against him” – not merely at trial – and that “[w]ithout it, though he be not guilty, [a defendant] faces the danger of conviction because he does not know how to establish his innocence.”[6]

Even so, Tennessee remains one of six states in the United States to pay a reduced hourly rate for trial preparation.[7]  And because lawyers respond to financial incentives much like other humans, that disparity creates an economic incentive to maximize time spent in court and minimize time spent out of court.  For example, when New York’s disparate compensation scheme – $40 per hour for in-court work and $25 per hour for out-of-court work – was struck down as unconstitutional back in 2003, the reviewing court did so in part on the basis that “[t]he lower rate paid for out-of-court time, in particular, operates as a substantial disincentive to perform” many of the pre-trial tasks that are essential to a defendant’s representation.[8]

A second problem is that Tennessee’s appointed counsel compensation rate – a maximum of $50 per hour – is far too low.  To the minimum wage worker or the service employee making just a fraction of that per hour, that assertion likely strikes a nerve.  But factoring in the fact that the “rate of compensation does not take into account the various overhead costs associated with the practice of law, which include the costs of reference materials, office equipment, rent, travel, malpractice insurance and, for most young attorneys, student loans” – not to mention payroll expenses for office staff – the picture becomes a great deal less rosy.[9]  For example, a 2008 survey found that the average annual overhead cost of running a small law firm was $160,000 per lawyer, which roughly translates to overhead expenses of $80 per hour assuming 2,000 billed hours per year.[10]  Accordingly, as Strang himself lamented: “I’m subsidizing the State of Wisconsin’s prosecution of my own clients to the tune of forty dollars an hour every time I take an appointed case.”

Compared with private counsel – whose standard hourly rates (summarized here by the Laffey Matrix) are often 10 to 20 times higher than Tennessee’s appointed compensation rates – this disparity becomes especially pronounced.  But even confined to the universe of appointed criminal defense work, Tennessee’s compensation rate lags substantially behind other jurisdictions.  For example, Alabama pays its appointed criminal defense attorneys $70 per hour.  Arkansas pays them $50-$90 per hour.  South Dakota musters $84.  And compensation rates for non-capital federal cases – which are funded separately by the Federal Criminal Justice Act – currently stand at $129 per hour.  In fact, on a national scale, Tennessee’s appointed attorneys are arguably paid the second-lowest effective rate in the entire country.[11]  Add in the fact that non-attorney staff members in the Administrative Office of the Courts occasionally deduct appointed attorneys’ bills on the basis that they spent too long on a given task, it’s no wonder that Tennessee’s appointed compensation scheme is held in such universal disregard by those involved in it.

Third, and most egregiously, Tennessee’s compensation rates are capped at set maximums.  With few exceptions, attorney compensation is limited to $1,000 for misdemeanors and $1,500 for felonies.  The result of such caps is that after attorneys have spent approximately twenty to thirty hours on a given case, they immediately begin losing money.  Thus, if an attorney is to make a decent living taking appointed cases, then the only feasible way to do so is to maximize the number of cases cleared before a case’s compensation limit has been reached—a strategy that is not-so-fondly referred to as “meet ‘em and plead ‘em.”  It also goes without saying that given the seriousness and complexity of criminal cases – not to mention the severity of their potential consequences – many clients’ cases cannot reasonably be concluded in thirty hours.  Especially under circumstances when a client is innocent and wants to go to trial, criminal cases can and often do take years to complete.

Predictably, this capped compensation arrangement can introduce deeply troubling and profoundly perverse incentives into an indigent defendant’s representation.  By placing enormous financial pressure on attorneys to conclude cases immediately once they have reached the maximum compensation limit (usually via a plea bargain), the caps create a serious conflict of interest between attorneys and their clients that probably violates Rule of Professional Responsibility 1.7(2) (“a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer.”).  As a consequence, indigent defendants all-too-often do not get the zealous advocacy and effective representation to which they are supposed to be constitutionally entitled.

The results of such idiosyncrasies – (1) disparate pay between in-court and out-of-court work; (2) low compensation rates; and (3) per-case caps on compensation – are measurably terrible for criminal defendants.  The rate of wrongful convictions even in death penalty cases is conservatively estimated to be about 4.1%.  This estimate is even more horrifying given that multiple exceptions (such as higher compensation rates, lifted compensation caps, and dual appointments of attorneys who are required to have significant trial experience) are routinely permitted when the death penalty is at stake.  Accordingly, one might reasonably expect that the wrongful conviction rate for less serious criminal cases is significantly higher.

On a broad scale, extensive evidence also indicates that “those with publicly funded counsel are [both] more likely to be convicted than those with privately paid attorneys” and more likely to receive longer sentences.[12]  Clients represented by salaried public defenders (who – although similarly underfunded – at least have “steady salaries, financial and institutional independence”) also enjoy measurably better outcomes than clients represented by appointed attorneys, who regularly experience the perverse incentives described above.[13]  Accordingly, like the rest of the country, Tennessee boasts a two-track justice system that is definitely not based exclusively on determining guilt versus innocence.  Instead, it has one justice system for the rich, and another for the poor.

Happily (potentially), the Tennessee Supreme Court has recently launched an Indigent Representation Task Force with the supposed goal of fixing these problems.  It is not clear, however, what this task force expects to discover.  When the results are ultimately announced, nobody will be surprised to learn that Tennessee’s decision to fund indigent defense at very nearly the lowest rate in the nation results in terrible outcomes for poor people.  Even if the task force decides to recommend changes to Tennessee’s compensation system, the recommendations are most likely to track those that were previously advanced by the Tennessee Bar Association and other interested organizations back in 2004.  The notion that any of the problems being considered during the Task Force’s “listening tour” are new or unknown, however, is farcical.  The topic of indigent defense is well understood, and it has been studied extensively both locally and nationally on too many occasions to count.

If Tennessee is serious about fixing its indigent defense system – and for now, there is no real indication that it is – then the solutions are simple but politically unpopular.  At a minimum, Tennessee’s compensation rates need to double, the compensation caps need to be lifted, and the disparity between in-court and out-of-court work needs to be done away with for good.  Public Defenders’ offices also need to be funded at a rate that permits attorneys to keep their caseloads below defined national standards.  Whether any of these reforms will actually be put into effect, however, only time will tell.  Until then, poor defendants in Tennessee will continue to serve as data points in a human trial aimed at determining how to provide the least effective criminal representation possible, and sadly, almost nobody will care.

Questions about this article?  Email Daniel Horwitz at

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[1] Contrary to popular belief, everyone accused of a crime does not actually have the right to attorney.  Instead, the right to counsel attaches only when a defendant is charged with a felony, see Gideon v. Wainwright, 372 U.S. 335 (1963), or when actual incarceration is imposed.  See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); Scott v. Illinois, 440 U.S. 367, 373–74 (1979) (“the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.”) (emphasis added).  Thus, accused misdemeanants can and often do go unrepresented, resulting in significant collateral consequences that the justice system has never adequately addressed.

[2] Gideon, 372 U.S. 335.

[3]  Strickland v. Washington, 466 U.S. 668, 687 (1984) (“the proper standard for attorney performance is that of reasonably effective assistance.”).

[4] See generally, John P. Gross, Gideon at 50: A Three-Part Examination of Indigent Defense in America, Part I 12-13, Indigent Defense Counsel of the National Association of Criminal Defense Lawyers (March 2013),

[5] Id.

[6] Powell v. Alabama, 287 U.S. 45, 69 (1932).

[7] Gross, supra, at 12.

[8] New York Cty. Lawyers’ Ass’n v. State, 763 N.Y.S.2d 397, 407 (Sup. Ct. 2003).

[9] Gross, supra, at 8.

[10] Id. at 16 (citing Altman Weil, Survey of Law Firm Economics: Trend Comparison of Overhead Expenses (2003)).

[11] Wisconsin and Oregon respectively compensate their attorneys at $40 per hour and $45 per hour independent of what work is being performed, but unlike Tennessee, neither state imposes maximum compensation limits, which have the consequence of reducing the effective compensation rate realized.  See Gross, supra, at 29 & 32.  However, attorneys in Cook County, Illinois receive $40 per hour in court and $30 per hour out of court, with maximum compensation caps even lower than Tennessee.  Id. at 22.  Some jurisdictions have flat fee rates or higher hourly rates but lower compensation caps, however, making cross-jurisdictional comparisons somewhat difficult.  Id. at 20-32.

[12] Erwin Chemerinsky, The Case Against the Supreme Court 147 (2014).

[13] James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 Yale L.J. 154, 188 (2012).

Memphis’s 48-Hour Investigative Hold Policy Heads to the Supreme Court

By Daniel Horwitz:

In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy.  The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1]  Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.

Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2]  As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours.  If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it.  If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.

The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures.  In the 1991 case County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional.  Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place.  However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error for five separate reasons:

First, this conclusion confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a probable cause determination made by law enforcement, which carries no constitutional significance.  Second, it violates the “administrative purpose” requirement initially established by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only.  Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed.  Fourth, such a holding renders McLaughlin‘s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests that are unsupported by probable cause are already prohibited by the Fourth Amendment.  Fifth, by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to evade judicial review of any kind, this holding substantially diminishes the value of the check on law enforcement that Gerstein was meant to provide.[4]

This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring.  There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted.  Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.

Questions about this article?  Email Daniel Horwitz at

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[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).

[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).

[3] The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.

[4] Horwitz, supra, at 522–23 (citations omitted).

Editorial: Senate Republicans’ inaction puts judiciary in crisis

By Daniel Horwitz, via The Tennessean (original link:


The American judiciary is in crisis. This crisis, however, is not one of competence or capability. Instead, due to unprecedented inaction from the United States Senate, large swaths of the federal judiciary are simply missing — resulting in excessive delays, exploding dockets and inconsistent application of the law in different parts of the country.

At present, more than 10 percent of the federal judiciary is vacant, with the overwhelming majority of such vacancies occurring in federal District Courts. District Courts serve as the judiciary’s workhorses, handling claims like Social Security disability denials and overseeing criminal prosecutions. Astoundingly, however, nearly one-third of federal District Court vacancies are currently designated “judicial emergencies” — a term that is generally defined as a court where filings exceed 600 per judge. Consequently, for anyone who believes that justice delayed is justice denied, the status quo stopped being acceptable many years ago.

The situation is no better at the appellate level. With respect to Court of Appeals nominees, the confirmation process has become so dysfunctional that Senate Republicans are now routinely refusing to confirm qualified nominees whom they themselves proposedto fill vacant positions. The Senate’s failure to fill vacant seats has also put a tremendous strain on sitting judges who must compensate for their missing colleagues — often preventing them from devoting the necessary time and attention to each case that every litigant deserves. Given the judges’ impossibly large caseloads, oral argument is now permitted in fewer than one out of every five cases in many federal circuits — depriving many aggrieved citizens of their cherished day in court.

But nowhere is America’s judicial crisis more apparent than in the U.S. Supreme Court. Having been left without a critical ninth member since February, the Supreme Court has already been unable to resolve myriad split decisions by lower courts — resulting in the same laws carrying different meanings in different parts of the country. Significantly, if the Senate fails to confirm a new justice soon, then the Supreme Court will also be forced to go at least two terms without being able to settle such crucial disputes. The resulting chaos is not only deeply damaging to the rule of law and to the judiciary as an institution — it is also historically unprecedented.

Denying President Barack Obama’s Supreme Court nominee Merrick Garland a Senate confirmation hearing is unparalleled in modern history. Since 1916, with the sole exception of 11 justices who were confirmed by unanimous consent, the Senate has scheduled a confirmation hearing for every single person who has been nominated to fill a Supreme Court vacancy, bar none.

Until now, the Senate also has never failed to do its constitutional duty, either as a matter of partisan obstruction or because a vacancy came up during an election year. In fact, Senate Democrats have confirmed Republican presidents’ Supreme Court nominees 12 separate times in recent history — including permitting conservative lightning rod Clarence Thomas to replace liberal icon Thurgood Marshall in 1991. Additionally, since 1912, six Supreme Court justices have been confirmed during presidential election years, including the 1988 confirmation of Justice Anthony Kennedy under President Reagan.

Moreover, as George H.W. Bush and Jimmy Carter have never forgotten, presidential terms are four years — not eight. Thus, the notion that presidents should simply stop fulfilling their constitutional duties during the final year of their terms — thus wasting a full quarter of an American presidency — is ludicrous.

Ultimately, if Senate Republicans decide that judicial nominees like Merrick Garland are unqualified to hold office for any reason, political or otherwise, then they are within their rights to vote them down. To fail even to hold confirmation hearings for proposed nominees, however, is a flagrant dereliction of duty. Thus, Senate Republicans should rightly be taken to task for refusing to comply with their constitutional obligations. Election year or not, it’s long past time for them to do their job.

Daniel Horwitz is an appellate attorney in Nashville and a member of the American Constitution Society.  Reach him at


Tennessee Supreme Court Restricts Coram Nobis Relief, Overturning Recent Precedent Yet Again

By Daniel Horwitz:

In a 3-1 decision, the Tennessee Supreme Court has ruled that petitions for writ of error coram nobis filed pursuant to Tenn. Code Ann. § 40-26-105 can no longer be used to challenge guilty pleas.  The Court’s decision in Frazier v. State formally overturns its prior decision in Wlodarz v. State,[1] which the Court decided on precisely the same issue just four years ago.

Frazier marks yet another step in the Court’s increasingly activist efforts to overturn past precedent and eschew stare decisis in cases that bolstered the rights of the accused under Tennessee law.  Following the recent departure of Justices Gary Wade and Janice Holder, the Tennessee Supreme Court’s new conservative majority has aggressively sought to limit and overturn earlier rulings that established protections for criminal defendants—even, in some instances, when both the government and defendants agreed that certain rights existed.[2]  The Court’s recent decisions following this approach have run the gamut from issues involving jury instructions to narrowing the means by which defendants are permitted to prove that they suffer from an intellectual disability.  Perhaps most controversially, however – at least for the moment – in May 2016, the Court issued its decision in State v. McCormick on the “community caretaking doctrine,” which created a new exception to the warrant requirement in Tennessee and overturned the Court’s prior decision in State v. Moats on the very same question barely three years earlier.[3]

The specific issue involved in Frazier was Tennessee’s coram nobis statute, which is codified at Tenn. Code Ann. § 40-26-105.  Coram nobis is a venerable common law writ dating back to sixteenth century England that has been used throughout the United States to cure injustice when no other procedural mechanism was available.  Perhaps the most famous example of the writ’s issuance in recent history is the posthumous exoneration of George Stinney Jr. in 2014– a 14-year-old black child who was executed in South Carolina in 1944 after being convicted of a capital crime that he did not commit.  Broadly speaking, however, from a historical perspective, “the common law writ of error coram nobis has served as a ‘gap-filler’ which was invoked ‘to rectify a recognized wrong when all other possible remedies [we]re no longer available.’”[4]

Frazier involved a defendant who pleaded guilty to second degree murder in 2004.  In 2011, he sought coram nobis relief from his conviction based on newly discovered evidence.  It is not clear from the court’s opinion what the newly discovered evidence was, but suffice it to say that defendants sometimes do plead guilty to crimes that they did not commit or plead guilty for other reasons that are unrelated to their guilt.  As result, most people agree that some type of relief should be available to defendants who can make a credible showing that they are innocent of a crime for which they pleaded guilty, were unlawfully coerced or threatened into pleading guilty, or pleaded guilty as a result of some other constitutional infirmity.  Based on a variety of limitations that require defendants to assert such claims quickly after their pleas are accepted or else lose them forever, however, there is often no procedural mechanism available to defendants who seek to prove the illegitimacy of a guilty plea several years after it was entered.  Thus, in such situations, it is natural for a defendant to turn to the writ of error coram nobis for relief when no other remedy is available.

The only question at issue in Frazier was “whether a criminal defendant who pleads guilty may later attack that plea by seeking error coram nobis relief.”[5]  The uncertainty arose out of Tenn. Code Ann. § 40-26-105’s use of the word “trial” – rather than a more general term like “hearing” or “proceeding” – which at least plausibly lends itself to the conclusion that guilty pleas were intended to be excluded from the statute’s ambit.   Specifically, the relevant section of Tennessee’s coram nobis statute provides:

The relief obtainable . . .  shall be confined to errors [outside] the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding.  Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.[6]

In 2012, however, this uncertainty was resolved by the Tennessee Supreme Court in Wlodarz v. State, which held without equivocation that: “a writ of error coram nobis is available to challenge a guilty plea . . . .”[7]   In Wlodarz, the Court explained in a lengthy section entitled “Guilty Plea Proceeding as a Trial” that “[n]umerous authorities interpret the term trial broadly.”[8] The Court’s majority also cited extensive precedent from the United States Supreme Court, the Tennessee Supreme Court, the Tennessee Court of Criminal Appeals, and the legal treatises American Jurisprudence and Corpus Juris Secundum to support that proposition.[9]  Consequently, the Wlodarz court concluded that “[i]t is inappropriate, in our view, to trivialize a guilty plea proceeding by holding that it does not constitute a ‘trial.’”[10]  The Court further observed that “[i]f this Court were to say that a guilty plea proceeding is not a trial and thus, not subject to the writ of error coram nobis, we would be the first to so hold, brushing aside centuries of tried and tested jurisprudence.”[11]

Importantly, no legislative changes of any kind were made to the coram nobis statute after Wlodarz was decided.  At least to this author’s knowledge, the decision was not followed by any other legal or factual developments that might have caused the Tennessee Supreme Court to reconsider it, either.  Instead, the only intervening fact of significance was a recent change in the composition of the Tennessee Supreme Court.  Thus, without any particular reason for doing so, the current Court decided to grant review in Frazier “to reexamine the availability of the error coram nobis statute as a procedural mechanism to collaterally attack a guilty plea.”[12]

Upon review, a three-Justice majority explained that “[t]he plain and ordinary meaning of the term ‘litigated on [or at] the trial’ in the context of criminal prosecutions refers to a contested proceeding involving the submission of evidence to a fact-finder who then must assess and weigh the proof in light of the applicable law and arrive at a verdict of guilt or acquittal.”[13]  The majority then recited that its “oath is to do justice, not to perpetuate error” – a familiar line invoked by courts when overturning established precedent – and further held that the value of stare decisis was limited in this instance because “Wlodarz is only a few years old.”[14]  Accordingly, Frazier’s majority decision formally overruled Wlodarz and held that the term “trial,” as used in Tennessee’s coram nobis, must actually be construed narrowly.

In a short but hard-hitting dissent, Chief Justice Sharon Lee lambasted the majority for having dispensed with stare decisis so readily.  She noted: “The principle of stare decisis, that the Court should follow precedential decisions, is ‘a foundation stone of the rule of law.’”[15]  This foundation, she explained, “promotes consistency in the law and confidence in this Court’s decisions,” and it “gives firmness and stability to principles of law so that people may know their legal rights.”[16]  Further, Chief Justice Lee observed:

We previously set out the circumstances when the Court may and should disregard stare decisis, overrule precedent, and overturn a settled rule of law: when there is obvious error or unreasonableness in the precedent; when a change in conditions makes the precedent obsolete; when adherence to precedent would likely cause greater harm to the community than would disregarding stare decisis; or, especially, when prior precedent conflicts with a constitutional provision.  The Court should follow precedent unless an error has been committed, and it becomes plain and palpable.  The Court may also revisit an earlier decision where experience with its application reveals that it is unworkable or badly reasoned.  Here, none of those compelling reasons are posed.[17]

As noted in this article’s introduction, Frazier represents just another star in a constellation of recent judicial activism by the Court’s new conservative majority, which has all but rushed to overturn past precedent that bolstered the rights of criminal defendants.  This pattern is also likely to continue.  Coming down the pipeline, for example, the Tennessee Supreme Court recently granted review in State v. Tuttle by expressing its “interest[] in briefing and argument of the question whether this Court should revisit the continuing vitality of State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989).”  Ten months ago, the Court also heard argument in State v. Reynolds, which may well result in Tennessee’s imminent adoption of its first-ever “good faith” exception to law enforcement misconduct.  (Note:  In the interest of full disclosure, this author participated in drafting an amicus curiae brief in Reynolds on behalf of the Tennessee Association of Criminal Defense Lawyers that opposed such a result.)

Jacumin represents one of Tennessee’s most celebrated state constitutional protections, requiring law enforcement officials in this State to establish a comparatively greater degree of confidence before obtaining search warrants.  Based on the Court’s recent jurisprudence, however, Jacumin’s continued survival (and the survival of myriad other precedential decisions) seems unlikely.  Regardless of the specific question involved, the Tennessee Supreme Court’s new philosophy is clear: no prior precedent bolstering the rights of the accused under Tennessee law – no matter how recent or long-established – stands on firm footing any longer.

Questions about this article?  Email Daniel Horwitz at

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[1] 361 S.W.3d 490 (Tenn.2012).

[2] See, e.g., State v. Brown, 479 S.W.3d 200, 210 (Tenn. 2015) (“we are not required to accept the State’s concession and decline to do so in this instance. . . .  We are also not persuaded by Mr. Brown’s and the State’s interpretation of Rule 36.1, although we recognize that some panels of the Court of Criminal Appeals have embraced this interpretation of the rule.”).

[3] 403 S.W.3d 170 (Tenn. 2013).

[4] Daniel A. Horwitz, Revealing Disturbing Gap in Tennessee Law, Tennessee Supreme Court Rules that Allegedly Retarded Death Row Inmate Is Not Entitled to Prove that He’s Retarded, (Apr. 19, 2016), (quoting Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012)).

[5] Frazier v. State, No. M-2014-02374-SC-R-11-ECN, 2016 WL 3668035, at *1 (Tenn. July 7, 2016).

[6] Tenn. Code Ann. § 40-26-105(b).

[7] 361 S.W.3d at 504.

[8] Id. at 501-04.

[9] Id.

[10] Id. at 503.

[11] Id. at 504.

[12] Frazier, 2016 WL 3668035, at *2.

[13] Id. at *3.

[14] Id. at *6 (quoting Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 599 (Tenn. 1999)).

[15] Id. (dissenting opinion) (quoting Kimble v. Marvel Entm’t, LLC, 135 S.Ct. 2401, 2409 (2015)).

[16]  Id. (quotations and citations omitted).

[17] Id. at *7 (citations omitted).

First Amendment Rights of Public Employees

By Daniel Horwitz:

News Channel 2 viewers were treated to a fun story last night about the free speech rights of public employees.  According to the segment, Nashville District Fire Chief Tim Lankford was recently disciplined for controversial, conservative-leaning statements that he made on his facebook page, which were perceived by his employer as being “racial, stereotypical, and threatening toward members of the public.”  The statements included posts such as: “The first man who goes into the restroom with my daughter won’t have to worry about the surgery,” as well as a diatribe about the Supreme Court’s marriage equality ruling that concluded with Chief Lankford stating that he was “so disturbed” by the opinion that he could “barely function at his job.”  Chief Lankford’s discipline also comes on the heels of independent sanctions being levied against two local police officers and a Sherriff’s deputy for statements made on facebook about the military lifting its ban on transgender service members and about the Black Lives Matter movement.  All of which led News Channel 2’s reporter to wonder:  Can public employees be disciplined for their speech without running afoul of the First Amendment?

Last night’s segment does not explore the applicable First Amendment doctrine in detail, but the short answer is “sometimes.”   Sadly, for most of the 20th century, public employers had an unfettered right to take adverse employment actions against public employees for their speech whether it was expressed inside or outside of the workplace.  Specifically, the Court’s thinking went: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[1]

Happily, though – at least for those of us who believe that more speech contributes to a better democracy – the Supreme Court eventually decided to change course.  In a series of cases beginning with the Court’s 1968 decision in Pickering v. Board of Education, the Court aimed to strike a balance “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[2]  Approximately four decades of tweaking later, following the Supreme Court’s contentious 2006 decision in Garcetti v. Ceballos,[3] the current state of the doctrine is as follows:

Determining whether a public employee’s First Amendment rights have been violated currently requires a three-part inquiry.

First, to be protected, the employee’s speech must address a matter of public concern, rather than a purely private matter.[4]  “Matters of public concern include speech that ‘relat[es] to any matter of political, social, or other concern to the community.’”[5]  This requirement is broadly construed, so in addition to encompassing commentary on political issues writ large,[6] “speech falling into this category includes informing the public that a governmental entity failed to discharge its governmental responsibilities or bringing to light actual or potential wrongdoing or breach of public trust on the part of a governmental entity or any officials therein.”[7]

Second, the employee must also have been speaking as a private citizen, rather than speaking pursuant to his or her official job responsibilities.  “When public employees make statements pursuant to their official duties,” the Supreme Court has explained, “employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[8]  Thus, although speech by public employees on matters of their employment is sometimes protected under federal and state whistleblower laws, for First Amendment purposes, public employees who speak in their capacity as public employees enjoy no First Amendment protection whatsoever.

Third, if the employee’s speech involved a matter of public concern and was not made pursuant to the employee’s official duties, then courts must attempt to “balance the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[9]  In Garcetti, the Supreme Court instructed that “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”[10]  However, lower courts have interpreted this requirement to mean that an employee’s interest in commenting upon matters of public concern must “outweigh” his or her employer’s interest in promoting an efficient and effective workplace, meaning that this final factor often derails otherwise-valid First Amendment claims as well.[11]  If the employee can satisfy all three of these requirements, however, then disciplining the employee for speaking out violates the employee’s rights under the First Amendment.

Satisfying each of these three requirements is undeniably difficult— especially for first responders who require the public’s complete trust that they will discharge their duties fully and impartially without regard to factors like a person’s race, gender, or sexual orientation.  (As former New York Mayor Rudy Giuliani celebrated during his speech at the Republican National Convention on Monday, for example: “When the[ police] come to save your life, they don’t ask if you are black or white, they just come to save you!”)  Accordingly, public employees often do not enjoy quite the level of First Amendment freedom that many expect or hope to see.  Of note, however, the limited First Amendment protections afforded to public employees stand in stark contrast to those held by private employees, who enjoy no First Amendment protections with regard to their employment at all.

Of course, the First Amendment also is not the only source of protection for free speech.  Additional protections can be and often are conferred upon public employees by federal law, state law, union agreements, or by contract.  For example, pursuant to Tennessee’s Public Employee Political Freedom Act (PEPFA): “it is unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because such employee exercised that employee’s right to communicate with an elected public official.”[12]  Taking disciplinary action against a public employee who exercises his or her right to communicate with a public official under PEPFA can also result in severe consequences to a government employer, including “treble damages plus reasonable attorney fees.”[13]  Thus, the First Amendment functions as only a protective floor upon which additional free speech protections can be – and should be – built higher.

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[1] Connick v. Myers, 461 U.S. 138, 143-44 (1983) (quoting  McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892), citing Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930); Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882).

[2] 391 U.S. 563, 568 (1968).

[3] 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).

[4] See Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 180 (6th Cir. 2008).

[5] Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (quoting Connick, 461 U.S. at 146.).

[6] See, e.g., Pickering, 391 U.S. at 571 (protecting commentary on use of tax dollars and school spending).

[7] Rodgers, 344 F.3d at 596 (internal quotation marks and alterations omitted).

[8] Garcetti, 547 U.S. at 421 (2006).

[9] Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 180 (6th Cir. 2008).

[10] Garcetti, 547 U.S. at 419 (2006).

[11] See, e.g., Housey v. Macomb Cty., 534 F. App’x 316, 321 (6th Cir. 2013).

[12] Tenn. Code Ann. § 8-50-603(a).

[13] Tenn. Code Ann. § 8-50-603(b).

Revealing Disturbing Gap in Tennessee Law, Tennessee Supreme Court Rules that Allegedly Retarded Death Row Inmate Is Not Entitled to Prove that He’s Retarded

By Daniel Horwitz:

Pervis Payne is a death row inmate in Tennessee who may well be mentally retarded.  Significantly, both the United States and Tennessee Constitutions forbid the Government from executing mentally retarded people.  In a unanimous 4-0 opinion, however, the Tennessee Supreme Court has ruled that under Tennessee law, Mr. Payne is not allowed to prove that he is mentally retarded to a court.

Pervis Payne was convicted of murder and sentenced to death in 1988.  Thereafter, both the Tennessee Supreme Court and the U.S. Supreme Court ruled that under the Tennessee and U.S. Constitutions, executing mentally retarded people is cruel, unusual, and categorically forbidden.  Additionally, in 1990, the Tennessee legislature enacted a law providing that: “Notwithstanding any law to the contrary, no defendant with mental retardation at the time of committing first degree murder shall be sentenced to death.”[1]  Following these developments, an individual cannot lawfully be executed if the individual has:

(1) Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below;

(2) Deficits in adaptive behavior; and

(3) The [individual’s] intellectual disability . . . manifested during the developmental period, or by eighteen (18) years of age.

Because all of these legal developments came only after Mr. Payne’s conviction, however, Mr. Payne has never had a hearing on the issue of his alleged mental retardation.  Nonetheless, there is strong reason to believe that he is indeed mentally retarded.  Among other indications, for example, Mr. Payne’s scores from multiple IQ tests administered between 1976 and 2010 all place him within or very near the range of mental retardation.  Significantly, one IQ test that was administered when he was nine years old produced a raw IQ score of 69.  If accurate, such a score would definitely establish Mr. Payne’s mental retardation so long as Mr. Payne could also prove that he has deficits in adaptive behavior.

After reviewing several of Mr. Payne’s IQ tests and evaluating Mr. Payne personally, Dr. Daniel J. Reschly—a professor of education and psychology at Vanderbilt University—recently stated in a sworn affidavit that Mr. Payne “has significant deficits in adaptive behavior due to substantial limitations in the conceptual skills and practical skills domain.”  Based on Mr. Payne’s consistently low IQ scores, his deficits in adaptive behavior, and the fact that Mr. Payne has been intellectually disabled since he was a child, Dr. Reschly also concluded under oath that Mr. Payne satisfies the established constitutional criteria for mental retardation, which would prohibit the Government from executing him.

Armed with this evidence, on April 4, 2012, Mr. Payne’s attorneys attempted to invoke several different procedures under Tennessee law in an effort to win Mr. Payne an evidentiary hearing on his mental retardation claim.  However, the trial court summarily denied all of Mr. Payne’s claims without holding a hearing.  Ultimately, the case reached the Tennessee Supreme Court.

In adjudicating Mr. Payne’s case, the Tennessee Supreme Court was called upon to decide what procedural mechanism Mr. Payne might use to go about proving that he is mentally retarded.  Unfortunately for Mr. Payne, however, the Tennessee Supreme Court ruled that as far as Tennessee law is concerned, no such procedure exists.

a.  Standard Post-Conviction Claim

Under Tennessee law, the traditional procedure for challenging a conviction that has become final is to file a “post-conviction petition.”  Post-conviction petitions are governed by Tenn. Code Ann. § 40-30-101, which is appropriately called the “Post-Conviction Procedure Act.”  Because Tennessee law recognizes what the Tennessee Supreme Court has described as the Government’s “interest[] in preserving the finality of judgments,”[2] however, only certain claims are eligible for consideration.  Specifically, in order to obtain post-conviction relief, defendants must prove that either their convictions or their sentences violate a right that is “guaranteed by the Constitution of Tennessee or the Constitution of the United States.”[3]

Notably, the Post-Conviction Procedure Act also imposes a strict one-year statute of limitations for filing post-conviction petitions.  Specifically, Tenn. Code Ann. § 40-30-102(a) provides that absent exceptional circumstances, a defendant’s post-conviction petition must be filed “within one (1) year of the date on which the judgment became final, or [else] consideration of the petition shall be barred.”  In more cases than not, this one-year statute of limitations operates to foreclose defendants from getting their claims into court at all regardless of their merit.  Why, one might wonder?  The answer is that most defendants in Tennessee are not aware of the strict one-year requirement, and since convicted defendants generally do not have the right to an attorney until after they have filed a post-conviction petition, they often learn about the one-year limitations period only after it has expired.[4]

With respect to the first requirement—that a conviction or sentence violate either the U.S. or Tennessee Constitutions—Mr. Payne’s claim unquestionably qualified.  In December of 2001, the Tennessee Supreme Court held that “the execution of a mentally retarded individual violates the Eighth Amendment to the United States Constitution and article I, § 16 of the Tennessee Constitution.”[5]  Barely six months later, in June of 2002, the U.S. Supreme Court followed suit, holding that the Eighth Amendment to the U.S. Constitution “places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”[6]  Thus, because Mr. Payne asserted that his death sentence was unconstitutional in light of his mental retardation, this claim qualified for post-conviction review.

Unfortunately for Mr. Payne, however, these constitutional developments came more than a decade after he was convicted.  Accordingly, the traditional one-year requirement for filing a post-conviction petition had long expired.  As a consequence, Tennessee law prohibited Mr. Payne from having his post-conviction claim heard by a court unless he could “re-open” his post-conviction proceeding by proving that the new rule at issue applies retroactively.

b.  “Re-opening” a Post-Conviction Claim Under Retroactivity Exception

The question of whether a new constitutional rule of criminal procedure applies retroactively is one of the most complex inquiries in constitutional law.  It has also repeatedly befuddled the Tennessee Supreme Court, which has reversed itself on the issue at least four times in the past twenty years[7] only to arrive—in 2014—at a standard that conspicuously conflicts with the text of the standard that it was attempting to adopt.[8]  During the intervening chaos, the Court of Criminal Appeals occasionally applied multiple retroactivity standards to defendants’ claims because it could not parse the Tennessee Supreme Court’s jurisprudence on the matter.[9]

At present, however, the statutory retroactivity standard codified in the Post-Conviction Procedure Act governs retroactivity claims.[10]  This statute provides that new rules apply retroactively if they either: (1) “place[] primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” or (2) “require[] the observance of fairness safeguards that are implicit in the concept of ordered liberty.”  Confusingly, however, with respect to the second rule, the Court held in 2014 that the Tennessee legislature actually intended to adopt “the federal standard from Teague v. Lane,” rather than the “implicit in the concept of ordered liberty” standard that actually appears in the statute.[11]  Thus, at present, the text of the second portion of Tenn. Code Ann. § 40-30-122 is to be ignored in favor of the second Teague v. Lane exception, which provides that retroactivity attaches to “new procedures without which the likelihood of an accurate conviction is seriously diminished.”[12]

Mercifully, the federal judiciary has held unmistakably that the Eight Amendment’s prohibition on executing mentally retarded people applies retroactively to all cases because it places the Government’s ability to execute a certain class of people beyond the Government’s power.[13]  Consequently, there is no doubt that both the Tennessee Supreme Court’s December 2001 decision prohibiting the execution of mentally retarded people and the U.S. Supreme Court’s similar June 2002 decision apply retroactively to Mr. Payne.  Accordingly, one might be forgiven for believing that Mr. Payne would be entitled to a hearing on his mental retardation claim.

Unfortunately for Mr. Payne, however, the aforementioned statute that allows defendants to “re-open” their post-conviction petitions when a new rule is retroactive also provides that even “if retrospective application of [a] right is required,” the petition to re-open the case “must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial[.]”[14]  Whether it violates fundamental fairness to apply such a strict time limitation—or any time limitation—to mentally retarded people; and whether the Government is even permitted to leverage short, strict statutes of limitations in order to insulate itself from otherwise meritorious claims that the Government is attempting to act in excess of its constitutional authority are serious questions for another day.  In this case, however, because Mr. Payne did not file his post-conviction petition until 2012, the court held that his claim was time-barred.  Had he filed his claim at any time between December 2001 and June 2003, though, then there is absolutely no question that he would have been granted relief.

Undiscouraged, Mr. Payne’s attorneys also attempted to use the U.S. Supreme Court’s more recent decision in Hall v. Florida as the “hook” to allow him to get back into court.  In Hall—which was decided in May 2014—the Supreme Court struck down Florida’s death penalty statute because it failed to account for standard error in a defendant’s IQ scores.  According to the Supreme Court, such a rigid requirement “misuse[d] IQ score on its own terms[.]”[15]  Thus, following Hall, “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”[16]

Consequently, the question for Mr. Payne became whether the rule announced in Hall was retroactive, too.  Given its recency, only two courts in the United States had addressed this issue at the time that Mr. Payne’s case was heard, and each reached a bitterly contested, 2-1 decision under the time-pressure of an imminent execution.[17]  In both cases, a two-judge majority concluded that Hall was not retroactive because it merely established new procedures for determining whether a defendant was mentally retarded, rather than establishing another substantive restriction on punishment.

There are, however, strong reasons to doubt this claim.  Most convincingly, Hall unquestionably restricted the universe of people that the Government is permitted to execute—a result that bears all the hallmarks of a substantive ruling.  Specifically, before Hall, individuals with an IQ above 70 were subject to being executed.  After Hall, however, some number of individuals with an IQ above 70 are constitutionally prohibited from being executed.  Like Atkins, such a result is one of substance in that it “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense.”[18]

Unfortunately, the Tennessee Supreme Court did not engage any of this analysis.  Instead, it merely held that because Mr. Payne was unable to identify any “federal appellate decision holding that Hall must be applied retroactively to cases on collateral review,” the court “decline[d] to hold that Hall applies retroactively.”  Consequently, Mr. Payne was not permitted to re-open his post-conviction proceeding on the basis of Hall’s retroactivity, either.

c.  Writ of Error Coram Nobis

As an alternative to the post-conviction statute, Mr. Payne’s attorneys also filed a petition for writ of error coram nobis.  Historically, the common law writ of error coram nobis has served as a “gap-filler” which was invoked “to rectify a recognized wrong when all other possible remedies are no longer available.”[19]  In Tennessee, for example, the writ has been used to correct judgments upon the subsequent discovery of a factual error “which, if known at the time of judgment, would have prevented the judgment from being pronounced.”[20]

Subsequently, however, the Tennessee legislature enacted a coram nobis statute that significantly limited the writ’s application.  Among other things, the legislature imposed a one-year statute of limitations for coram nobis actions and restricted the relief that it provides to factual errors only (rather than legal errors).[21]  It has never been clear whether the statutory writ of coram nobis operated to replace and supersede the common law writ,[22] and indeed, the answer to that question is still not entirely clear even following the Court’s decision in Payne.[23]  Given the one-year statute of limitations contained in the writ of error coram nobis statute, however—and after indicating that Mr. Payne’s claim was more appropriately characterized as a legal claim rather than a factual one—the Court denied Mr. Payne coram nobis relief as well.

d.  Free-Standing Claim Under Tenn. Code Ann. § 39-13-203

Positing yet another procedural vehicle for his claim, Mr. Payne’s attorneys also argued that he had a free-standing claim under Tenn. Code Ann. § 39-13-203 (the “Intellectually Disabled Defendants/Capital Punishment” statute), which was enacted approximately one year after Mr. Payne was convicted.  In pertinent part, this statute provides that: “Notwithstanding any law to the contrary, no defendant [who was mentally retarded] at the time of committing first degree murder shall be sentenced to death.”

Unfortunately for Mr. Payne, however, the Tennessee Supreme Court already ruled on the retroactivity of Tenn. Code Ann. § 39-13-203 back in 2001.  In that case, the court concluded that “although the issue as to retroactive application of the statute [wa]s close,”[24] Tenn. Code Ann. § 39-13-203 only applied prospectively.  Disappointingly, the court’s analysis on this point completely failed to engage the question of whether Tenn. Code Ann. § 39-13-203 was substantive or procedural, which is traditionally what governs the inquiry under Tennessee law.[25]  Notably, the case also serves as a prime example of why the late Justice Scalia railed against the use of legislative history in interpreting statutes—which can frequently be manipulated to arrive at whatever decision a reviewing judge would prefer to reach.

Specifically, when it decided the issue in 2001, the court noted that during the 1990 legislative session, a specific amendment was introduced in the State Senate that would have explicitly provided that Tenn. Code Ann. § 39-13-203 applied only prospectively.[26]  The amendment failed and was withdrawn, which one might think would suggest that the legislature disagreed with it and wanted the statute to apply retroactively.  Not so, apparently.  After hypothesizing that “the legislature’s failure to clearly provide for retroactive operation may have been a product of oversight or may have been based on the assumption that no prisoner then on death row was mentally retarded,” the court concluded that “notwithstanding the presence of some ambiguous language in the statute and in the legislative history, there is no evidence of a clear legislative intent to apply the statute retroactively as required by the general rule.”[27]  Accordingly, the court held that Tenn. Code Ann. § 39-13-203 applied only to cases after July 1, 1990.

Revisiting this issue again in Mr. Payne’s case, the Tennessee Supreme Court reaffirmed its 2001 holding in Van Tran that Tenn. Code Ann. § 39-13-203 does not apply retroactively.  Yet again, however, the Tennessee Supreme Court failed to ask whether the statute at issue was merely remedial in nature, which this author finds somewhat baffling.  Interestingly, the Court’s position that the Intellectually Disabled Defendants/Capital Punishment statute does not apply retroactively also shifted from a “close [call]” to an “inescapable conclusion” in Mr. Payne’s case.  Regardless, however, the end result was the same.  According to the court:  “[Mr. Payne] failed to establish that he has a private cause of action to pursue his claim of [mental retardation] pursuant to the intellectual disability statute.”

e.  Additional procedures?

According to a footnote in the court’s opinion, Mr. Payne’s attorneys also claimed that he had a right to an evidentiary hearing on his mental retardation claim under three other procedures available in Tennessee law: a declaratory judgment action; a motion to vacate an illegal sentence; and/or a petition for writ of audita querela.  The court declined to rule on any of these potential claims, however, as the record before it did not indicate that Mr. Payne had yet tried to pursue them.  Even so, the court implied that these procedures would not allow Mr. Payne to obtain an evidentiary hearing on his claim of mental retardation, either.  Accordingly, the court concluded its opinion by “encourag[ing] the General Assembly to consider whether another appropriate procedure should be enacted to enable defendants condemned to death prior to the enactment of the intellectual disability statute to seek a determination of their eligibility to be executed.”

It seems extremely unlikely that the General Assembly will accept this invitation.  Accordingly, as far as mentally retarded defendants who received death sentences after 1990 (and who did not have the benefit of effective counsel between 2001 and 2003) are concerned, the constitutional prohibitions against cruel and unusual punishment exist only in theory as a matter of Tennessee law.  Notably, however, this very likely does not mean that they will be executed.  Instead, it just means that Tennessee’s courts won’t hear the matter, and that federal courts will have to clean up the omission.

Read the Tennessee Supreme Court’s unanimous opinion in Payne v. Tennessee here.

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[1] 1990 Tenn. Pub. Acts 730, ch. 1038, § 1, codified at Tenn. Code Ann. § 39-13-203(b) (2014).

[2] Sample v. State, 82 S.W.3d 267, 282 (Tenn. 2002).

[3] Tenn. Code Ann. § 40-30-103.

[4] Occasionally, defendants also encounter some threshold procedural obstacles to filing post-conviction petitions that prevent them from meeting this deadline (not the least of which is trying to practice law without the assistance of an attorney).  For example, although notarization is not required by statute, the standard form for post-conviction petitions inexplicably requires a notary, and prisons are often slow to provide access to them.  Additionally, incarcerated defendants generally require a minimum degree of cooperation from prisons in order to file a post-conviction petition by mail, and in some instances, prison staff have been rumored to obstruct inmates from doing so.

[5] Van Tran v. State, 66 S.W.3d 790, 812 (Tenn. 2001)

[6] Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252, 153 L. Ed. 2d 335 (2002) (quotation omitted).

[7] Compare Meadows v. State, 849 S.W.2d 748, 755 (Tenn. 1993) (“we decline to apply the federal standard of retroactivity announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and hold that a new state constitutional rule is to be retroactively applied to a claim for post-conviction relief if the new rule materially enhances the integrity and reliability of the fact finding process of the trial.”); with Van Tran, 66 S.W.3d at 811 (appearing to hold that Meadows standard applies despite state statute adopting Teague standard); with Keen v. State, 398 S.W.3d 594, 601 (Tenn. 2012) (appearing to equate Meadows standard and Teague standard); with Bush v. State, 428 S.W.3d 1, 15 (Tenn. 2014) (expressly acknowledging difference between Meadows standard and Teague standard, holding that Tenn. Code Ann. § 40-30-122 codifies Teague standard, and holding that statutory standard prevails).

[8] See Daniel A. Horwitz, Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J.L. & Pol’y 215, 232 (2015) (noting that “[r]ather than applying the comparatively broad retroactivity standard that had in fact been included in the Post-Conviction Procedure Act, the Bush court instead held that an even narrower [] standard–which the court summarily concluded that the legislature must have “intended” to enact based upon a pair of confused statements made by the bill’s House sponsor nineteen years earlier–would henceforth govern retroactivity law in Tennessee.”), available at

[9] See, e.g., Bush v. State, No. M2011-02133-CCA-R3PC, 2012 WL 2308280 *6-9 (Tenn. Crim. App. June 15, 2012).

[10] Bush v. State, 428 S.W.3d 1, 20 (Tenn. 2014).

[11] Id.

[12] Teague v. Lane, 489 U.S. 288, 313, 109 S. Ct. 1060, 1077, 103 L. Ed. 2d 334 (1989).

[13] See, e.g., In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (“there is no question that the new constitutional rule abstractly described in Penry and formally articulated in Atkins is retroactively applicable to cases on collateral review.”); Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002) (“In Atkins, the Supreme Court held at the end of its term that executing a mentally retarded individual violates the Eighth Amendment’s ban on cruel and unusual punishments. This holding applies retroactively; in Penry v. Lynaugh, when the question was last before it, the Court recognized that a constitutional rule barring execution of the retarded would fall outside Teague v. Lane’s ban on retroactive application of new constitutional rules because it placed the ability to execute the retarded ‘beyond the State’s power.’”) (internal citation omitted).

[14] Tenn. Code Ann. § 40-30-102(b)(1).

[15] Hall v. Florida, 134 S. Ct. 1986, 2001, 188 L. Ed. 2d 1007 (2014).

[16] Id.

[17] See Goodwin v. Steele, Nos. 14-3739, 14-3743, 2014 WL 11128597, at *2 (8th Cir. Dec. 9, 2014) (per curiam); In re Henry, 757 F.3d 1151, 1159-61 (11th Cir. 2014).

[18] Montgomery v. Louisiana, 136 S. Ct. 718, 728, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016) (internal quotations omitted); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“the Constitution places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”) (internal quotations omitted).

[19] Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012).

[20] State v. Mixon, 983 S.W.2d 661, 667 (Tenn. 1999)

[21] See Tenn. Code Ann. § 40-26-105; Tenn. Code Ann. § 27-7-102 & 103.  It is not clear that the criminal coram nobis statute – which mentions neither factual errors nor a statute of limitations period – actually compels this result, but the Tennessee Supreme Court has held as much nonetheless.

[22] To the author’s knowledge, the Tennessee Supreme Court also has never opined on whether a legislative effort to limit the application of a common law judicial writ would violate the Tennessee Constitution’s separation of powers doctrine.

[23] The Court suggests that the answer is “yes,” however, holding that an earlier case containing language that suggested considerably broader coram nobis relief than the coram nobis statute provides “d[id] not provide the Petitioner with a common law remedy in coram nobis.”

[24] Van Tran, 66 S.W.3d at 798.

[25] See, e.g., Shell v. State, 893 S.W.2d 416, 419 (Tenn. 1995) (“statutes affecting only the method or the procedure for prosecuting or defending a cause of action may be applied retroactively.  A remedial or procedural statute is one that does not affect the vested rights or liabilities of the parties.”).

[26] Van Tran, 66 S.W.3d at 798.

[27] Id.

Tennessee’s February 2016 Bar Results Released: Vanderbilt Reclaims Top Spot, Nashville School of Law Performs Poorly Again

The results of the February 2016 Tennessee bar exam are out.  Following a July 2015 exam that saw Belmont University post the highest passage rate of all Tennessee law schools, Vanderbilt Law School has reclaimed its fairly consistent place on top of the pile with a 92.31% overall passage rate and a 100% passage rate for first-time takers.  Among re-takers, four of five Vanderbilt graduates passed the February 2016 exam, good for an 80% passage rate among those taking the test for a second time or more.

On the other side of the coin, Nashville School of Law registered its second abysmal performance in a row, posting only a 30.08% overall passage rate and a frighteningly low 17.1% passage rate among re-takers.  First-time NSL graduates performed slightly better, however, registering a cumulative passage rate of 47.1%.

Overall, Tennessee’s passage rate for all takers from all law schools combined was just 51.06%, reflecting both a bar exam that has become more difficult in recent years and a decrease in the quality of recent law school graduates.  Driven by a rapid decrease in law school applicants over the past several years (the total number of law school applicants has declined precipitously since 2010, falling from a high of 87,900 to a low of 54,130 in 2015), the academic credentials of incoming law students have measurably decreased.  Controversially, many law schools have responded to this problem (and the corresponding loss of revenue) by decreasing their admissions standards, which has predictably resulted in lower bar passage rates post-graduation.

The complete bar passage results from Tennessee’s February 2016 bar exam, available at the Tennessee Board of Law Examiners’ website, are copied below.

School Stats

Summary of Stats







Op Ed: Veto bill aimed at quelling sexual harassment claims

From today’s Tennessean, my op ed on proposed civil fee-shifting for claims against government officials:


By Daniel Horwitz:

Imagine being a young legislative aide who is on the receiving end of unwanted sexual advances by her employer, a prominent state representative.  He frequently comments on your appearance and suggests that you start dressing in more revealing clothing.  He calls you late at night and asks you to meet him at local bars while his wife thinks he’s working.  One day, he summons you to his office, shuts the door, and gropes you.  When you resist, he warns you not to tell anyone.  The next day, after you decline his request to come in for another “private meeting,” he fires you.

What do you do?  If you can prove what happened in court, of course, then you can hold him accountable.  But if you sue, you also fear repercussions.  What will happen to your career?  Do you want a long, high-profile legal battle, and can you even afford one against someone who has the government’s vast resources at his disposal?  What if a jury doesn’t believe you?

One way that society attempts to correct this power imbalance is by requiring government wrongdoers to pay a victim’s legal fees if the victim’s lawsuit is successful.  Federal and state laws commonly include such “fee-shifting” provisions in order to incentivize people to file suit when their constitutional or civil rights have been violated.  Notably, such provisions also play an important role in promoting public policy, since society has a strong interest in rooting out misconduct like sexual harassment even when a victim’s monetary damages are insubstantial.

Following the legislature’s recent approval of SB2377/HB1679, however, Tennessee is on the verge of taking the opposite approach: requiring alleged victims to pay the government’s legal fees if a lawsuit against a government official is unsuccessful.  Significantly, this penalty also is not restricted to claims that are deemed frivolous or unfounded; instead, it would apply no matter why the allegations failed.  For example, even if a victim withdraws a lawsuit voluntarily because she runs out of money to keep fighting it, she would still be required to pay the government a crippling monetary penalty.

Like many lawsuits, sexual harassment claims frequently cost hundreds of thousand dollars to litigate.  It is also safe to assume that most people don’t have that kind of money lying around, so individuals who fail to win a lawsuit against state employees will often be forced to declare bankruptcy.  Tellingly, the legislature’s own fiscal impact report acknowledges this reality, stating that “there will not be a significant number of attorneys’ fee awards collected as a result of the bill.”  Consequently, SB2377/HB1679 cannot honestly be described as an effort to reimburse taxpayers for successfully defending against frivolous lawsuits, as its Senate sponsor Mike Bell claimed.  Instead, it’s a deliberate attempt to deter victims from bringing government officials’ wrongdoing to light in the first place.

The immediate effect of such a change will be to discourage victims of official misconduct from pursuing their claims in court at all.  Remarkably, this naked attempt to intimidate victims was also the top legislative priority of Tennessee Attorney General Herbert Slatery, who is supposed to be the one individual above all in Tennessee who is tasked with protecting the public interest.

Even more disturbingly, General Slatery promoted this “reform” while his office was supposed to be conducting an investigation into alleged misconduct by State Representative Jeremy Durham, who recently resigned his leadership post after being accused of sexually harassing three women who work at the statehouse.  Astoundingly, General Slatery has also stated unequivocally and without embarrassment that the purpose of SB2377/HB1679 is to ensure that such victims “have something at risk” if they decide to file suit.

It is difficult to overstate just how troubling it is that the Attorney General’s primary response to sexual harassment at the state Capitol has been to try to sweep it under the rug.  Simply put, General Slatery’s effort to intimidate victims in this manner is shameful, and it is beneath the dignity of his office.

The proper response to wrongdoing by government officials is to root it out, to punish it, and to prevent it from occurring in the first place—not to use the threat of bankruptcy to deter victims from coming forward.  Regrettably, SB2377/HB1679 would do, and is intended to do, just that.  It should be vetoed by Governor Haslam accordingly.

Daniel A. Horwitz is an attorney in Nashville.  Reach him at and @Scot_Blog.

Law Enforcement Investigative Files Are Not Public Records, Holds Tennessee Supreme Court

By Daniel Horwitz:

[Disclosure:  The author filed an amicus curiae brief in support of the victim in this case on behalf of four organizations committed to preventing domestic and sexual violence.  The author’s brief is accessible here.]

In one of the most eagerly anticipated and hotly contested decisions in recent memory, the Tennessee Supreme Court has ruled 4-1 that the Nashville Police Department’s investigative records concerning the Vanderbilt rape case are not subject to disclosure under the Tennessee Public Records Act.  The Court’s ruling comes approximately ten months after the case’s closely-watched oral argument, which pitted a vast media coalition headlined by The Tennessean against Metro government, the Tennessee Attorney General’s Office, and the alleged victim in the case, who intervened to protect her privacy under the pseudonym “Jane Doe.”

The lawsuit arose out of a public records request filed by The Tennessean in October of 2013, which sought access to records involving an alleged rape at Vanderbilt University that resulted in the arrest of four Vanderbilt football players.  Among other information, The Tennessean’s public records request sought text messages and videos that had been sent or created by third-party sources, such as then- Vanderbilt football coach James Franklin.

On October 23, 2013, Metro denied The Tennessean’s public records request.  Specifically, Metro contended that the requested records were part of an open criminal investigation and were thus exempt from public disclosure under Tennessee Rule of Criminal Procedure 16(a)(2), which prohibits “discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case.”  After The Tennessean filed suit in Davidson County Chancery Court seeking access to the requested records, the victim in the case intervened, arguing that her own private records – including a video recording of the alleged rape and her private text messages – were exempt from public disclosure under Tennessee’s victims’ rights laws.  After a full hearing, the trial court ruled that some, but not all, of the requested records were public.

Ultimately, the case reached the Tennessee Supreme Court.  Upon review, four of the Court’s five justices held that the police department’s entire investigative file was exempt from public disclosure under Tennessee Rule of Criminal Procedure 16(a)(1) and 16(b)(1).  The court also clarified that victims need not take any action to protect certain records from public disclosure following a defendant’s conviction.  At least for the time being, however, the full scope of victims’ privacy rights under Tennessee’s victims’ rights provisions remains unclear.

The Tennessee Public Records Act

As a general matter, all governmental records are considered public records under the Tennessee Public Records Act unless they are specifically exempted from disclosure.[1]  When the Tennessee Public Records Act was first adopted in 1957, it only provided for two such exemptions—medical records of patients in state hospitals, and military records involving national and state security.[2]  In the half-century since, however, the Tennessee legislature has systematically added more than forty additional statutory exemptions to the Tennessee Public Records Act.  For example, included among the Act’s restrictions is an exemption that prohibits public disclosure of student educational records and an exemption that blocks public disclosure of inmate emergency transfer plans.[3]

Additionally, the Tennessee Public Records Act has since been amended to include a “catch-all” provision that further restricts disclosure of records that are not specifically exempted by statute.  This provision establishes that requested records are not public if there is any other exemption to disclosure that is “otherwise provided by state law.”[4]  Notably, for purposes of this “catch-all” provision, “state law” has been interpreted to include other statutes, the Tennessee Constitution, Tennessee common law, rules of court, and administrative rules and regulations.[5]

Tennessee Rule of Criminal Procedure 16

The Court’s four-justice majority ruled that the records requested by The Tennessean were barred from disclosure under Tennessee Rule of Criminal Procedure 16.  Rule 16 governs the exchange of information between prosecutors and defense counsel in criminal cases.  Specifically, 16(a)(1) provides that upon request, “the state shall disclose” certain records “to the defendant.”  (16)(b)(1) further clarifies which records are “subject to disclosure,” specifying, for example, that “documents and tangible objects” and “reports of examinations and tests” must be disclosed to the defendant upon request.  Additionally, Rule 16(a)(2) specifies that certain records are not subject to disclosure.  Records that are not subject to disclosure under Rule 16(a)(2) – which embodies what is commonly recognized as a “work-product exemption” – include “documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case.”

Unlike the Tennessee Public Records Act, however, Rule 16 only governs the exchange of information between the government and a criminal defendant.  As a consequence, the majority ruled that “Rule 16 is the more specific provision and controls the discovery and disclosure of materials in a criminal case to the exclusion of the Public Records Act.”[6]  “Because Rule 16 does not provide for disclosure to a third party of materials subject to discovery between the State and a defendant,” the Court’s majority held, the public “cannot gain access to these materials under the Public Records Act.”[7]

The majority also contended that a contrary conclusion would produce absurd results.  Specifically, the court argued:  “If Rule 16 did not function as an exception to the Act, a defendant would have no reason to seek discovery under Rule 16, but would file a public records request and obtain the entire police investigative file, which could include more information than the defendant could obtain under Rule 16. . . .  This absurd result was not intended by the Legislature and would have a negative impact on [both] a police department’s ability to investigate criminal activity and a defendant’s ability to obtain a fair trial.”[8]

In dissent, Justice Gary Wade argued that Rule 16 does not provide such a blanket exemption for law enforcement records under the Tennessee Public Records Act.  Specifically, he noted, Rule 16 “is silent as to the dissemination of discovery information to the public,” and “silence in a rule is not affirmative law and is ordinarily irrelevant to the interpretation of the rule.”[9]  Further, he observed, as Justice Stewart once wrote in an opinion for the U.S. Supreme Court:   “In ascertaining the meaning of a [rule], a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark.”[10]

Addressing the majority’s distinction between records available to a defendant and records available to the public under Rule 16, Justice Wade also argued that “the majority’s conclusion rests upon . . . a failure to accord proper weight to the public nature of criminal proceedings.”[11]  Citing both the U.S. Constitution and the Tennessee Constitution for the proposition that in all criminal prosecutions, a defendant enjoys a constitutional right to a public trial,[12] he contended that such a distinction was unwarranted.  Accordingly, Justice Wade concluded, “Rule 16 does not prohibit public access to discoverable materials,”[13] and only the explicit restriction contained in Rule 16 – the work-product exemption – should govern.  As a result, Justice Wade held that third-party records that were received by law enforcement should be subject to disclosure under the Tennessee Public Records Act unless the records are exempt from disclosure under Tennessee law’s separate victims’ rights provisions.

Victims’ Rights

Because the majority’s opinion broadly concluded that Tennessee Rule of Criminal Procedure 16 exempts all police records from public disclosure during the course of a criminal prosecution, the majority did not directly address whether some of the requested records would also have been protected from disclosure under Tennessee’s victims’ rights laws.  This separate argument, however – which represented the position advocated by both the victim and the author on behalf of several domestic and sexual violence prevention advocates – was directly adopted by Justice Wade in dissent.  He wrote:

“Both article I, section 35 and section 40-38-102(a)(1), which are designed to insure protections to victims, qualify as ‘state law’ for purposes of the catch-all exception to disclosure under the TPRA.  Exceptions must be recognized pursuant to the catch-all provision when, as here, there is a significant risk that the disclosure of documents will contravene rights guaranteed by provisions in the Tennessee Code and the Tennessee Constitution.

. . . .

[Victims’ records] qualify for protection under the victims’ rights provisions—which . . . apply both during and after the prosecution.”

In this regard, Justice Wade’s opinion mirrors the separate opinion issued by Judge Neal McBrayer in the Tennessee Court of Appeals, who had similarly held that “victim’s rights under Article 1, § 35 of the Tennessee Constitution and Tennessee Code Annotated sections 40-38-101 through 506. . . . constitute ‘state law’ exceptions to the Public Records Act.”[14]  At present, however, whether the four justices representing the Court’s majority will embrace this view in a future case remains unclear.  Given that the only two jurists who have squarely addressed this claim have both ruled that Tennessee’s victims’ rights provisions protect certain private information about victims from public disclosure, though, and given that the majority’s opinion makes multiple overtures to the legislature’s “wise[]” decision to enact exemptions protecting victims’ private records from disclosure,[15] there is strong reason to believe they would.

Read the Tennessee Supreme Court’s majority opinion in Tennessean v. Metro. Gov’t of Nashville here, Justice Wade’s dissent here , and Justice Kirby’s concurrence here.

Questions about this article?  Email Daniel Horwitz at

Like ScotBlog?  Follow along on Twitter @Scot_Blog or on facebook at


[1] See, e.g., Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (noting that Tenn.Code Ann. § 10–7–505(d) “expressly sets up a presumption of openness to records of governmental entities” and that “the burden is placed on the governmental agency to justify nondisclosure of the records.”).

[2] Act of Mar. 18, 1957, ch. 285, 1957 Tenn. Pub. Acts 932.  See also Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App. 2004) (“As originally enacted, the public records statutes excepted only two classes of records from disclosure. These records included the medical records of patients in state hospitals and military records involving the security of the United States or the State of Tennessee.”).

[3] See Tenn. Code Ann. § 10-7-504(a)-(s).

[4] Tenn. Code Ann. § 10-7-503(2)(A) (2012).

[5] See Swift, 159 S.W.3d at 571-72 (“the General Assembly [] amended Tenn.Code Ann. § 10–7–503(a) by replacing the phrase ‘state statute’ with ‘state law.’ The change is significant for two reasons. First, it signaled a return to the General Assembly’s original understanding that statutes were not the sole source of exceptions from the public records statutes’ disclosure requirements. Second, it broadened the permissible sources of exceptions from disclosure to include not only statutes, but also the Constitution of Tennessee, the common law, the rules of court, and administrative rules and regulations because each of these has the force and effect of law in Tennessee.”) (citing Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 148 (Tenn.1993) (Constitution of Tennessee); Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 713 (Tenn.2002) (rules of court); Emery v. Southern Ry., 866 S.W.2d 557, 561 (Tenn.Ct.App.1993) (the common law); Kogan v. Tennessee Bd. of Dentistry, No. M2003–00291–COA–R3–CV, 2003 WL 23093863, at *5–6 (Tenn.Ct.App. Dec. 30, 2003) (No Tenn. R.App. P. 11 application filed) (administrative rules and regulations)).

[6] Tennessean v. Metro. Gov’t of Nashville, No. M201400524SCR11CV, 2016 WL 1084422, at *11 (Tenn. Mar. 17, 2016).

[7] Id.

[8] Id. at *10.

[9] Id. at *18 (Wade, J., dissenting) (citing State v. Collier, 411 S.W.3d 886, 897 (Tenn. 2013)).

[10] Id. (quoting Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 (1980)).

[11] Id.

[12] U.S. Const. amend. VI; Tenn. Const. art. I, § 9.

[13] Tennessean, 2014 WL 4923162, at *19 (dissenting opinion),

[14] Tennessean v. Metro. Gov’t of Nashville, No. M2014–00524–COA–R3–CV, 2014 WL 4923162, at *6 (Tenn. Ct. App. Sept. 30, 2014) (McBrayer, J., dissenting).

[15] Tennessean, 2016 WL 1084422, at *12.Tennessean, 2016 WL 1084422, at *12.

A win for substance over form: Tennessee Supreme Court holds that Tennessee’s one-year savings statute applies to tolling agreements.

By Daniel Horwitz:

In an increasingly rare win for substantive law and justice over blind adherence to procedural technicalities, the Tennessee Supreme Court held in a 3-1 decision on Monday that Tennessee’s one-year savings statute applies to tolling agreements.

The case arose out of a legal malpractice dispute between a construction company and its law firm.  After the construction company found itself on the losing end of a $1.66 million judgment, the company notified its law firm that it was considering filing a malpractice claim against it.  Thereafter, the parties entered into an agreement that voluntarily extended the deadline for filing legal malpractice claims.  Pursuant to that agreement – known in legalese as a “tolling agreement” – the statute of limitations was extended by four months following the outcome of the company’s appeal.[1]  Notably, the tolling agreement also made no mention of Tennessee’s “savings statute,” the importance of which is discussed further below.

The company ultimately filed a legal malpractice lawsuit against its law firm on September 21, 2011.  Because the company’s appeal concerning its $1.66 million judgment had not yet been decided, there was also no doubt that based on the parties’ tolling agreement, the lawsuit was not time-barred.

Approximately seven months later, on April 16, 2012, the company voluntarily dismissed its lawsuit.  Like many other states, Tennessee has a “savings statute” that “allows a case that has been dismissed, for reasons other than a dismissal on the merits, to be refiled within a set period [of time]—even after the statute of limitations has run on the action.”[2]  Specifically, under Tennessee’s savings statute, a plaintiff that dismisses a lawsuit voluntarily is permitted to re-file the lawsuit “within one (1) year after” the dismissal.[3]

The Tennessee Supreme Court has explained on several occasions that the primary purpose of the savings statute is “to aid the Courts in administering the law fairly between litigants without binding them to minor and technical mistakes made by their counsel in interpreting the complexities of [Tennessee’s] laws of procedure.”[4]  In practice, though, the savings statute also provides several other benefits, such as giving parties an additional year to settle their claims, allowing a plaintiff to switch attorneys, or allowing an attorney to withdraw from a case after filing a lawsuit without unduly harming the plaintiff’s legal interests.  Thus, “the savings statute confers upon a plaintiff who files a second action within one year of a voluntary non-suit of a first action the same procedural and substantive benefits that were available to the plaintiff in the first action.”[5]

The company’s appeal was ultimately handed down on October 1, 2012.  Consequently, under the parties’ tolling agreement, the company’s (first) lawsuit had to be filed no more than four months later by January 29, 2013.  Because the company had already filed its first lawsuit and then taken a voluntary dismissal on April 16, 2012, however, the company relied on Tennessee’s savings statute for the proposition that it had an additional year after April 16, 2012 – meaning until April 16, 2013 – to re-file its claim.  Accordingly, the company re-filed its malpractice lawsuit on April 8, 2013.

The law firm ultimately filed a motion to dismiss the company’s second lawsuit on the basis that it had been filed too late.  According to the law firm, Tennessee’s savings statute did not apply to tolling agreements, and the company’s initial lawsuit had not been filed within the applicable statute of limitations.  Thus, the law firm argued, the merits of the company’s re-filed lawsuit could not be considered.

The hyper-technical justification offered to support the law firm’s position in this regard was that Tennessee’s savings statute applies only if an action “is commenced within the time limited by a rule or statute of limitation[.]”  Because, according to the law firm, the company’s lawsuit had only been commenced within the time permitted by the parties’ tolling agreement – rather than having been commenced within the time permitted by “a rule or statute of limitation” – Tennessee’s savings statute didn’t apply.

Upon review, a majority of the Tennessee Supreme Court summarily rejected this conclusion for several reasons.

First, the court explained, based on longstanding precedent, “the rights and obligations of contracting parties are governed by the law in effect when they entered into their contract, and existing law becomes as much a part of the contract as if specifically incorporated therein.”  Thus, the court reasoned, “in the absence of evidence of contrary intention, the parties must be held to have contemplated the application of [the savings statute] to the terms of their agreement.”

Second, the court held that even assuming that a tolling agreement itself doesn’t qualify as “a rule or statute of limitation,” the company’s first lawsuit had nonetheless been filed “within the time limited by [the] statute of limitation” because the parties’ tolling agreement had expressly “paused and extended the applicable statute of limitations.”  Accordingly, Tennessee’s savings statute had to be given effect.

Third, the court reiterated once again that “[b]ecause the savings statute is remedial, courts must give it a broad and liberal construction.”  Accordingly, the court concluded, when applying Tennessee’s savings statute, hyper-technical procedural claims should not prohibit a party’s lawsuit from going forward.

With these concerns in mind, the court held that “[i]f parties to a tolling agreement wish to foreclose application of the savings statute, they must include clear, explicit language in the tolling agreement to that effect.  Otherwise, without such explicit indication that the parties intend to circumvent the savings statute, it will normally apply.”  Accordingly, if parties that enter into tolling agreements wish to foreclose the application of Tennessee’s savings statute going forward, then the parties must specifically state in their tolling agreements that Tennessee’s savings statute is not intended to apply.

Commendably, the court’s majority decision in Circle C. Construction breaks a recent trend in decisions that have eschewed Tennessee’s longstanding tradition of “decid[ing cases] on the merits whenever possible,”[6] and have instead permitted “technical procedural hurdles to prevent otherwise valid claims from being adjudicated on their merits.”[7]  Specifically, following the recent retirements of Tennessee Supreme Court Justices Wade and Holder, civil plaintiffs have increasingly found themselves trapped by procedural obstacles that have prevented them from getting their claims past the courtroom door.  In particular, Justice Kirby has provided an especially reliable pro-civil defendant vote, having consistently voted to dismiss plaintiffs’ claims before a trial in employment cases, governmental tort cases, and in traditional tort cases like the one discussed above—in which Justice Kirby served as the court’s lone dissenter.

In fairness, however, Justice Kirby’s jurisprudential bent in favor of civil defendants can also be described as foreseeable in light of her tenure as a Court of Appeals judge.  For example, careful court-watchers will recall that one of the first cases decided by the Tennessee Supreme Court following Justice Kirby’s confirmation was a 4-0 decision by her future colleagues to reinstate a jury’s $3 million verdict in a retaliatory discharge action that then-Judge Kirby had dismissed while presiding as a member of the Court of Appeals.[8]  Where Justice Page – just confirmed by the General Assembly as the Tennessee Supreme Court’s fifth member – will come down on this increasingly prevalent dispute, however, only time will tell.

Read the Tennessee Supreme Court’s majority opinion in Circle C. Construction, LLC v. D. Sean Nilsen et al. here, and Justice Kirby’s dissenting opinion here.

Questions about this article?  Email Daniel Horwitz at

Like ScotBlog?  Follow along on Twitter @Scot_Blog or on facebook at

[1] Traditionally, legal malpractice claims must be filed within one year.  In this case, if it had not been extended, then the company’s lawsuit would have had to be filed by March 15, 2011.

[2] Decision at 6 (citing Clark v. Hoops, LP, 709 F. Supp. 2d 657, 669 (W.D. Tenn. 2010)).

[3] Tenn. Code Ann. § 28-1-105.  See also Rajvongs v. Wright, 432 S.W.3d 808, 811 (Tenn. 2013) (“The saving statute provides that if a timely filed action is dismissed without prejudice, a plaintiff may ‘commence a new action within one (1) year after’ the dismissal.”); Tenn. R. Civ. P. 41.01 (“Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause . . . .”).

[4] Gen. Acc. Fire & Life Assur. Corp. v. Kirkland, 356 S.W.2d 283, 285 (1962).

[5] Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995)

[6] Moreno v. City of Clarksville, No. M201301465SCR11CV, 2015 WL 5526858, at *16 (Tenn. Sept. 18, 2015) (Wade, J., dissenting).

[7] Daniel A. Horwitz, The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap, Vol. 15, No. 5 Nashville Bar Journal 14 (June 2015) (feature article), available at

[8] See Ferguson v. Middle Tennessee State Univ., 451 S.W.3d 375 (Tenn. 2014) (reversing Ferguson v. Middle Tennessee State Univ., No. M2012-00890-COA-R3CV, 2013 WL 1304490 (Tenn. Ct. App. Mar. 28, 2013)).