Following a push to promote confidence in the election system, Nashville voters are using new voting machines to cast their votes in the August 1, 2019 Metro election. The purpose of the change was to enhance election integrity by giving voters a paper printout of their ballot choices that can be used to verify selections made on an electronic voting machine and to conduct a hand recount, if necessary. The rollout, however, has not gone as planned.
Earlier today, decorated News Channel 5 investigative reporter Phil Williams announced on Twitter that during the process of scanning his marked ballot, a poll worker had stared at it and was able to determine how he had voted, and that his wife had experienced the same issue:
My wife and I both had the same horrified reaction yesterday when we voted early in the Nashville election. The new system prints out your votes, then an election worker helps feed them into the scanner. In both cases, she was actually staring down at how we voted. Stop it NOW!— Phil Williams (@NC5PhilWilliams) July 21, 2019
You feed it into the scanner face-up, and there was an election worker standing right by the machine. In both our cases, she looked right down at the ballot as it was being fed into the machine.— Phil Williams (@NC5PhilWilliams) July 21, 2019
Thereafter, multiple other voters chimed in to report having the same experience. The issue—which appears to be due in large part to untrained or poorly trained poll workers who missed instructions that marked ballots are not to be touched and should be scanned by voters facedown—seriously compromises the secret ballot, prompting election advocacy group Tennesseans for Sensible Election Laws to issue a litigation threat to the Davidson County Election Commission:
The letter, in full, reads as follows:
TSEL STATEMENT ON NASHVILLE POLL WORKERS VIEWING
VOTERS’ MARKED BALLOTS
Following
reports from News Channel 5’s Phil Williams and other voters that poll workers
in Davidson County, Tennessee have been viewing voters’ marked ballots while
voters were feeding them into scanners, Daniel A. Horwitz, General Counsel for Tennesseans
for Sensible Election Laws,issued the following statement:
“Tennesseans
for Sensible Election Laws is deeply concerned about reports that Davidson
County poll workers have been viewing individual voters’ marked ballots as they
were being fed into scanners. It should
not even be possible for such a scenario to occur, much less actually occur in
practice.
The
secret ballot is critical to maintaining the integrity of Tennessee’s election process.
Ballot secrecy prevents illicit tactics
like vote-buying and ensures that voters will be comfortable voting for
whomever they please without fear of retaliation or intimidation. Simply put: The secret ballot is essential in
order to maintain both confidence in and the security of Tennessee’s entire
election process.
To protect
the secret ballot, Tenn. Code Ann. § 2-9-101(a) provides that: “A voting
machine to be used in Tennessee . . . must ensure voting in absolute secrecy.” Further, under Tenn. Code Ann. §
2-3-108(b)(1), paper ballots must be administered and arranged in such a way
“that it is impossible for any person to see a voter’s ballot while it is
being marked.”
Reports
by Phil Williams and others that their marked ballots were viewed by poll
workers while their votes were being counted make clear that Davidson County’s
new voting process does not comply with applicable ballot secrecy mandates. As a consequence, Tennesseans for Sensible
Election Laws demands that the Davidson County Election Commission take
immediate action to ensure that all marked ballots are fed into scanners facing
down and that poll workers are unable to view them under any
circumstances. Any election official who
attempts to view a voter’s marked ballot must be terminated. If the Davidson County Election Commission
does not take immediate action to maintain legally-mandated ballot secrecy, we
will take legal action yet again to protect Tennessee’s democratic process.”
Tennesseans for Sensible Election Laws is a nonpartisan group of concerned citizens who care about protecting Tennessee’s democratic process. Its mission is to ensure that Tennessee’s election and campaign finance statutes, policies, and regulations protect all Tennesseans’ rights to participate in the political process without unreasonable interference from the state government. Learn more at tn4sense.org.
Paid for by Tennesseans for Sensible Election Laws. David M. Morelli, Jr., Treasurer. Not authorized by any candidate or candidate’s committee, but we don’t think it should be a crime not to tell you that.
If you woke up this morning feeling freer to speak your mind, there’s a reason: A little-noticed law with huge free speech benefits takes effect today. As of July 1, 2019, the “Tennessee Public Participation Act”—Tennessee’s first-ever meaningful Anti-SLAPP law—became effective and affords those who are sued for their speech a host of critical legal benefits.
Because litigation is often prohibitively expensive, bad actors can often intimidate critics into silence by threatening or filing baseless speech-based lawsuits asserting claims like defamation (libel or slander), false light invasion of privacy, business disparagement, or other questionable torts. When faced with the prospect of having to spend tens (if not hundreds) of thousands of dollars in legal fees to defend one’s legal right, for instance, to leave an unfavorable review of a business, self-censorship can also become an extremely attractive proposition. The result of such self-censorship is to undermine both individuals’ right to free speech and the public’s right to hear and receive information.
It is important to note that the overwhelming majority of defamation and other speech-based lawsuits are not filed because a person has suffered an actual legal injury. Instead, their purpose is to punish people for lawfully exercising their right to speak freely about a topic that the suing plaintiff wants to censor. Given the cost of litigation, historically, such lawsuits have also been disturbingly effective.
To provide a counterbalance to the financial threat posed by bogus defamation lawsuits, laws aimed at deterring “Strategic Lawsuits Against Public Participation” (Anti-SLAPP laws) afford speakers a number of significant legal protections, all of which are critical to safeguarding free speech and promoting the free exchange of information and ideas. First, Anti-SLAPP laws help deter bad actors from filing baseless lawsuits against people for lawfully exercising their free speech rights in the first place. Second, the best Anti-SLAPP laws provide people who are sued for exercising their First Amendment rights an efficient and expeditious means of getting frivolous speech-based lawsuits dismissed quickly. Third, Anti-SLAPP laws commonly provide a mechanism to punish abusive litigants and attorneys who file baseless defamation claims with significant monetary sanctions. Fourth, Anti-SLAPP laws frequently give people who are sued for exercising their free speech rights the right to recoup whatever attorney’s fees and court costs they incurred for having to defend against a meritless speech-based lawsuit.
Happily, beginning today, Tennessee now boasts an Anti-SLAPP law that affords speakers all of these benefits. Until today, Tennessee only had a limited Anti-SLAPP law that was narrowly restricted to statements made to government agencies. Fortunately, though, earlier this year, Tennessee enacted the “Tennessee Public Participation Act” to protect Tennesseans’ right to free speech, which became effective July 1, 2019. Thus, from today onward, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world can now wield a powerful protective weapon against bad actors’ efforts to censor and intimidate them through frivolous speech-based lawsuits.
The Tennessee Public Participation Act has dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. Under the Act, every “communication made in connection with a matter of public concern”—a term that is defined broadly and expressly encompasses statements involving issues of “health or safety” and “community well-being”—”that falls within the protection of the United States Constitution or the Tennessee Constitution” will come within the ambit of the law’s protection. In other words: Most statements made by citizens within the State of Tennessee—including social media posts and blog posts—now receive heightened protection against speech-based lawsuits, including defamation lawsuits, false light invasion of privacy lawsuits, or lawsuits that assert claims such as “defamation by implication or innuendo.” Defendants who are sued for claims such as “abuse of process” or “malicious prosecution” will frequently enjoy heightened protection under the Tennessee Public Participation Act as well.
Censorship has always been rampant, and it comes in many forms—from firing people who speak out about misconduct in the workplace to libel and slander lawsuits. More than anything, in recent years, the permanence of the internet combined with the reach and speed of social media have made it more attractive than ever to try to censor others through the legal system before harmful information—whether accurate or not—reaches every corner of cyberspace. The good news is that the Tennessee Public Participation Act will now afford significant protection to people who speak out about topics like abuse and other important issues. The text of the law appears below.
The Tennessee Public Participation Act (Effective July 1, 2019):
20-17-101. This chapter shall be known and may be cited as the “Tennessee Public Participation Act.”
20-17-102. The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury. This chapter is consistent with and necessary to implement the rights protected by Article I, §§ 19 and 23, of the Constitution of Tennessee, as well as by the First Amendment to the United States Constitution, and shall be construed broadly to effectuate its purposes and intent.
20-17-103. As used in this chapter:
(1) “Communication” means the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic;
(2) “Exercise of the right of association” means exercise of the constitutional right to join together to take collective action on a matter of public concern that falls within the protection of the United States Constitution or the Tennessee Constitution;
(3) “Exercise of the right of free speech” means a communication made in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution;
(4) “Exercise of the right to petition” means a communication that falls within the protection of the United States Constitution or the Tennessee Constitution and:
(A) Is intended to encourage consideration or review of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body; or
(B) Is intended to enlist public participation in an effort to effect consideration of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body;
(5) “Legal action” means a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable relief initiated against a private party;
(6) “Matter of public concern” includes an issue related to:
(A) Health or safety;
(B) Environmental, economic, or community well-being;
(C) The government;
(D) A public official or public figure;
(E) A good, product, or service in the marketplace;
(F) A literary, musical, artistic, political, theatrical, or audiovisual work; or
(G) Any other matter deemed by a court to involve a matter of public concern; and
(7) “Party” does not include a governmental entity, agency, or employee.
20-17-104.
(a) If a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action.
(b) Such a petition may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court’s discretion, at any later time that the court deems proper.
(c) A response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.
(d) All discovery in the legal action is stayed upon the filing of a petition under this section. The stay of discovery remains in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.
20-17-105.
(a) The petitioning party has the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.
(b) If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.
(c) Notwithstanding subsection (b), the court shall dismiss the legal action if the petitioning party establishes a valid defense to the claims in the legal action.
(d) The court may base its decision on supporting and opposing sworn affidavits stating admissible evidence upon which the liability or defense is based and on other admissible evidence presented by the parties.
(e) If the court dismisses a legal action pursuant to a petition filed under this chapter, the legal action or the challenged claim is dismissed with prejudice.
(f) If the court determines the responding party established a likelihood of prevailing on a claim:
(1) The fact that the court made that determination and the substance of the determination may not be admitted into evidence later in the case; and
(2) The determination does not affect the burden or standard of proof in the proceeding.
20-17-106. The court’s order dismissing or refusing to dismiss a legal action pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.
20-17-107.
(a) If the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party:
(1) Court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition; and
(2) Any additional relief, including sanctions, that the court determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.
(b) If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney’s fees incurred in opposing the petition.
20-17-108. Nothing in this chapter:
(1) Applies to an enforcement action that is brought in the name of the state or a political subdivision of this state by the attorney general, a district attorney general, or a county or municipal attorney; (2) Can result in findings or determinations that are admissible in evidence at any later stage of the underlying legal action or in any subsequent legal action; (3) Affects or limits the authority of a court to award sanctions, costs, attorney’s fees, or any other relief available under any other statute, court rule, or other authority; (4) Affects, limits, or precludes the right of any party to assert any defense, remedy, immunity, or privilege otherwise authorized by law; (5) Affects the substantive law governing any asserted claim; (6) Creates a private right of action; or (7) Creates any cause of action for any government entity, agency, or employee.
20-17-109. This chapter is intended to provide an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available to those parties under common law, statutory law, or constitutional law or under the Tennessee Rules of Civil Procedure.
20-17-110. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.
Federal court orders that controversial sterilization program be rescinded; White County officials to pay Plaintiffs’ attorney’s fees, permanently enjoined from making or enforcing any sentencing determination that is based “in whole or in part upon a defendant’s consent—or refusal to consent—to becoming permanently or temporarily sterilized.”
Following an historic reversal at the United States Court of Appeals for the Sixth Circuit last month, an inmate sterilization program instituted by two White County, Tennessee officials has finally come to an end. The landmark order comes nearly two years after a trio of inmates at the White County jail filed suit against White County General Sessions Court Judge Sam Benningfield—the architect of the program—and the White County Sheriff’s Office, alleging that the program violated the 14th Amendment’s Equal Protection and Due Process clauses.
A consent decree approved by the United States District Court for the Middle District of Tennessee earlier today formally terminates the controversial inmate sterilization program, compelling Judge Benningfield to rescind each of his standing orders regarding the program “in their entirety,” effective immediately. The Court’s order also permanently enjoins both Judge Benningfield and the White County Sheriff’s Office “from making or enforcing any sentencing determination that is based in whole or in part upon a defendant’s consent—or refusal to consent—to becoming permanently or temporarily sterilized” at any point in the future. Judge Benningfield and the White County Sheriff were further ordered to pay the costs of the lawsuit and the plaintiffs’ attorney’s fees, which the order provides “shall be donated by Plaintiffs’ counsel to the United States Holocaust Memorial Museum and the Tuskegee History Center.” Each of the three inmates who sued after refusing to become sterilized also received a 30-day sentencing credit toward a future expungement.
“Inmate sterilization is despicable, it is morally indefensible, and it is illegal,” said Daniel Horwitz, a Nashville-based constitutional lawyer who represented the inmates along with Richard Brooks. “Let this historic order serve as a warning: Whether you are a sitting Judge, a Sheriff who is ‘just following orders,’ or any other government official, if you violate the Constitution, you will be held accountable.”
The Consent Decree and Final Order approved by the U.S. District Court for the Middle District of Tennessee and additional case documents regarding the program appear below.
Third, the Tennessee General Assembly passed one of Governor Bill Lee’s central legislative priorities—a substantial reduction in the current expungement fee that the state assesses people for the privilege of expunging convictions and diverted offenses on their criminal records. Tennessee’s expungement law, which enables people to expunge up to two qualifying convictions, provides an extraordinarily important mechanism for people to move on from an interaction with the criminal justice system and eliminate their criminal record history such that—as a matter of law—it “never occurred.” Although the reform does not wholly eliminate all applicable expungement fees, it reduces the total fee that people will have to pay to expunge a conviction or diversion from $280 to $100 going forward.
These important reforms each move individual rights in the right direction. They reduce private litigants’ ability to abuse the legal process, they curtail the government’s power to infringe upon people’s constitutional rights, and they help ensure that people will not suffer a life sentence for minor criminal convictions solely because they lack the ability to pay a few hundred dollars to expunge their qualifying convictions. Hopefully, progress like this is only a beginning.
In a unanimous, twenty-page opinion released earlier this afternoon, the Tennessee Supreme Court ruled on a pair of critical issues affecting newsgathering in Tennessee. The Court’s ruling strengthens protections for the “fair report” privilege—a legal defense that protects journalists from liability for allegedly defamatory news articles—while at least arguably undercutting Tennessee’s “Shield Law,” which enables journalists to protect their sources. The Court’s opinion, authored by Justice Cornelia Clark, is accessible here.
The first and central holding of the Court’s opinion is that no claim of “malice”—either an express motive to harm another or simply reckless reporting—can overcome the fair report privilege afforded to news media. “We hold that neither express malice nor actual malice can defeat the fair report privilege,” the Court’s opinion reads. “The privilege can only be defeated by showing that a report about an official action or proceeding was unfair or inaccurate.” Because the overwhelming majority of defamation lawsuits are baseless, the Court’s opinion significantly strengthens protections for journalists that could otherwise be eviscerated through creative or fanciful pleading.
On the other hand, however, the Court held that
a journalist’s invocation of the fair report privilege necessarily “triggers
the exception to the shield law in Tennessee Code Annotated section 24-1-208(b),”
which generally protects journalists against having to disclose the sources of
their information. The Court’s opinion
explains:
“[A]ssertion of the fair report privilege will
necessarily entail disclosure of the media defendant’s source of information.
This is because a media defendant asserting the privilege must show that the
allegedly defamatory information is a fair and accurate report of official
actions or proceedings, and therefore, the media defendant must disclose the
source of the allegedly defamatory information.”
The Court made clear, however, that “the exception to the shield law allows a court to compel disclosure of the source of a media defendant’s information—how media defendants know something; it does not authorize a court to compel media defendants to disclose the information the source provided.”
Read the Tennessee Supreme Court’s unanimous opinion in Glenn R. Funk v. Scripps Media, Inc.here.
In an opinion released on Thursday, the Tennessee Supreme Court answered a certified question of law from the United States Court of Appeals for the Sixth Circuit in the high-profile case of Cyntoia Brown, the juvenile sex trafficking victim who received a life sentence after being convicted of murdering a John. The Court’s opinion concluded—unanimously and correctly by any reasonable determination—that Ms. Brown will become eligible for parole after serving 51 years in prison.
It should be noted that the Tennessee Supreme Court’s ruling that Ms. Brown is parole eligible after 51 years was the more lenient outcome available in her case—albeit not the one that Ms. Brown’s attorneys had sought for reasons unique to her circumstances. Nonetheless, a flood of national attention to Ms. Brown’s case and a significant misunderstanding of its posture led multiple commentators—Ana Navarro, for instance—to decry the Court’s ruling as “a travesty of justice,” which it most certainly was not:
Cynthia Brown was a 16 girl when she killed a 43 year-old man forcing her to have sex. The Tennessee Supreme Court ordered she must serve 51 years. THIS IS A TRAVESTY OF JUSTICE. Folks, you need to flood Gov. @BillHaslam’s twitter feed and demand he do something about this. https://t.co/EUKdwQnS6J— Ana Navarro (@ananavarro) December 8, 2018
To put the fairness of her punishment in its proper context: Cyntoia Brown’s sentence is grossly unfair, and Tennessee Governor Bill Haslam should grant her clemency immediately. (People like Calvin Bryant and Randy Mills deserve clemency, too.) Indeed, Governor Haslam should have granted her clemency months ago when she first applied. Ms. Brown—a bright, capable young woman who was very much a victim herself and whose rehabilitation is no longer even questioned—has been punished enough, and her sentence should be commuted immediately to bring it into compliance with modern standards of decency.
As for her pending legal challenge, though: Ms. Brown’s case is far from unique. In fact, from a purely legal perspective, her sentence is considerably less severe than fourteen others in Tennessee. There is a material difference between a juvenile life without the possibility of parole sentence—which fourteen Tennessee defendants are serving right now—and a juvenile life with the possibility of parole sentence, which is what Ms. Brown received. (One of those defendants—who is serving three consecutive life without the possibility of parole sentences for felony-murder charges committed when he was 14—is the author’s client.) Specifically: A life with the possibility of parole sentence includes the possibility of parole, while a life without the possibility of parole sentence does not. The issue in Ms. Brown’s case—which the Tennessee Supreme Court has now resolved—was whether her sentence included the possibility of parole.
Ms. Brown’s trial court ruled that she would be eligible for parole after 51 years. There also has never been any doubt that this was the actual sentence that Ms. Brown received. In its sentencing order, her trial court specifically stated that Ms. Brown “must serve at least fifty-one (51) calendar years before she is eligible for release.” The Tennessee Department of Correction similarly notes that Ms. Brown is parole eligible:
Nonetheless, Ms. Brown’s federal habeas claim sought to convince the U.S. Court of Appeals for the Sixth Circuit to hold that she was not eligible for parole at all. The claim—to put it mildly—was never likely to succeed. Nonetheless, in June, the Sixth Circuit gave the Tennessee Supreme Court the opportunity to clarify the perceived ambiguity in Tennessee’s sentencing scheme and determine whether or not Ms. Brown was parole eligible.
In its opinion on Thursday, the Tennessee Supreme Court concluded that Ms. Brown was indeed parole eligible. According to the Court, this result was dictated by Tennessee’s sentencing statutes, which the Tennessee Supreme Court determined were not in conflict. Even if Tennessee’s sentencing statutes were ambiguous, however, the “rule of lenity” would have required the same outcome. Under that rule, whenever there is an ambiguity in a criminal provision that can reasonably be interpreted in two ways—one that is more favorable to a defendant and one that is less favorable—precedent and fairness compel that the more lenient interpretation be applied.
Contrary to typical circumstances, Ms. Brown argued that she should have been given a sentence that was even harsher than the one she actually received. The reason why she lodged that claim? In a 2012 case—Miller v. Alabama—the U.S. Supreme Court ruled that juvenile life without parole sentences are presumptively unconstitutional. That decision was also held to be retroactive in 2016 following the U.S. Supreme Court’s decision in Montgomery v. Louisiana. As a result, if Ms. Brown had received a life without the possibility of parole sentence, then she would (at least theoretically) be entitled to have her sentence remedied. In other words: Ms. Brown wanted the Sixth Circuit to hold that her sentence was even harsher than it was so that it would be presumptively unlawful. To date, however, it is worth noting that none of Tennessee’s fourteen actual juvenile life without parole defendants have had their presumptively unconstitutional sentences corrected in any regard.
Because the Tennessee Supreme Court has now determined—correctly and by necessity—that Ms. Brown is and always has been parole eligible, her entitlement to resentencing under Miller and Montgomery is not straightforward. She can, and will, continue to argue that she received a “de facto” life without parole sentence because few people will survive 51 years in prison. Nonetheless, anyone who decries the Tennessee Supreme Court’s clarification is, in a literal sense, demanding an even harsher outcome in her case: That Ms. Brown is never eligible for parole at all. The notion that the Tennessee Supreme Court’s failure to embrace that outcome is a “travesty of justice” is farcical, and outrage about the Court’s decision should be tempered accordingly.
Earlier this month, the Tennessee Higher Education Commission voted 8-5 to deny Middle Tennessee State University’s proposal to add a law school to its higher education offerings. Given that Tennessee’s only existing public law schools are located in Memphis and Knoxville, MTSU’s proposal would have added the first and only public law school option to the Middle Tennessee area. Its addition would also have introduced substantial competition into the low-cost segment of Middle Tennessee’s strictly private law school market, which is currently failing to produce.
Blasting criticism of the proposal, MTSU President Sidney A. McPhee called on the Commission to reject the “cartel-like view” that its role was to inhibit competition. Opponents of the plan also appeared to make his point for him. For instance, in urging the Commission to vote down a law school at MTSU, WPLN reports that “[t]he biggest critics of the transfer came from lawyers and law schools in Memphis and Knoxville, where the state’s only other public law schools are located.” Other critics decried the fact that another school in the city: (1) “would take away from other schools’ ability to compete,” (2) “would saturate an already dense legal labor market,” (3) “would make it even more difficult for law school graduates to find work,” and (4) would “insert more law school graduates into an already crowded job market.”
The extent to which “the biggest” critics’ interests in stifling competition factored into the Higher Education Commission’s decision to vote down MTSU’s proposal is not clear. What is clear, however, is that if concerns about enhanced competition in the legal industry or the private law school market—something that uniformly benefits consumers by affording them more choices and lower prices—played any role at all, the Higher Education Commission’s decision was not lawful. Specifically, although Tennessee regulators appear to be unaware of this fact, a vast body of law instructs that raw economic protectionism is an illegitimate governmental interest, and that under both federal and state law, governmental action aimed solely at inhibiting competition is illegal.
In 2002, the United States Court of Appeals for the Sixth Circuit held for the first time that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose” and violates the 14th Amendment to the U.S. Constitution.[1] As far as state law is concerned, the Tennessee Supreme Court has long held that protectionism is forbidden by the Tennessee Constitution as well. In the 1956 case Consumers Gasoline Stations v. City of Pulaski, for instance, the Tennessee Supreme Court held that “[a]lthough [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”[2] A wealth of additional state precedent spanning more than a century also supports this premise.[3]
With this context in mind, if attempts to stifle competition in the private Middle Tennessee law school market or in the legal industry more broadly played any role in the Commission’s 8-5 decision to reject MTSU’s proposal to add a law school, then MTSU is entitled to a new hearing. Just as unconstitutional hostility to a litigant’s religious beliefs cannot play a role in an administrative proceeding, nor can unconstitutional hostility to competition factor into the Higher Education Commission’s decisions. Given the prominent and visible role that raw economic protectionism of private industry appears to have played in the Commission’s decision to vote down a law school at MTSU, however, the school should seriously consider its right to appeal.
[1]Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).
[2]Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956).
[3]See, e.g., Harbison v. Knoxville Iron Co., 53 S.W. 955, 957 (Tenn. 1899) (“The ‘liberty’ contemplated in [the Tennessee Constitution] means not only the right of freedom from servitude, imprisonment, or physical restraint, but also the right to use one’s faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof.”); Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 806 (Tenn. 2015) (noting Tennessee’s established public policy favoring citizens’ “access to employment and the ability to earn a livelihood.”).
Late last week, the Tennessee Supreme Court issued a trio of critically important decisions on criminal-constitutional issues. Continuing a recent trend on the topic, criminal defendants got walloped.
1. Further Restricting Coram Nobis Relief
In Nunley v. State of Tennessee, the Court significantly restricted the measure of relief available under the writ of error coram nobis. Coram nobis is a procedural vehicle used to help remedy wrongful convictions based on new evidence that is discovered after a defendant has been convicted. Regrettably, the Court’s unanimous decision in Nunley narrowed the writ’s already limited scope even further.
Nunley involved a defendant who was convicted of aggravated rape in 1998 and alleged that DNA testing proved that he was innocent of the crime. Mr. Nunley further alleged that in 2014, he discovered that the State had withheld critical exculpatory evidence when the Shelby County District Attorney’s Office included four previously-undisclosed exhibits in a responsive pleading that it filed in opposition to his petition for DNA testing under the Post-Conviction DNA Analysis Act.
Upon review, the Court rejected Mr. Nunley’s plea for relief. Three critical, novel holdings are worthy of emphasis:
First, the Court held that the writ of error coram nobis cannot be used to advance claims under Brady v. Maryland, 373 U.S. 83 (1963). A “Brady” claim is a claim that a defendant’s right to a fair trial was violated because the State withheld exculpatory evidence that it is constitutionally required to provide to defendants. This oft-overlooked violation can be characterized as pervasive in Shelby County and other areas in Tennessee. Further, when Brady violations are acknowledged—even in capital cases—the Board of Professional Responsibility of the Tennessee Supreme Court has given District Attorneys little more than a slap on the wrist. Henceforth, however, Brady claims will no longer be cognizable via the writ of error coram nobis. Instead, they must be brought via the Tennessee Post-Conviction Procedure Act.
Second, the Court held that “timeliness under the statute of limitations is an ‘essential element’ of a coram nobis claim that must appear on the face of the petition.” Unless tolled, a writ of error coram nobis must be filed within one year of the date of a defendant’s conviction or it will be forever unavailable as time-barred. Given, among other things, the overwhelming difficulties associated with reinvestigating one’s case from prison and Tennessee’s structurally deficient indigent defense system, this time limitation is so short that it renders the writ practically useless. According to the National Registry of Exonerations, criminal defendants who were exonerated in 2017 “spent an average of 10.6 years incarcerated for their convictions.” Similarly, in 2016, “[a]lmost two-thirds of the DNA exonerations in 2016 were murder cases, and the average time from conviction to exoneration was 21 years.” Accordingly, absent rare and extraordinary circumstances, the one-year statute of limitations will operate to foreclose virtually all meaningful opportunities for relief under Tennessee’s coram nobis statute.
Third, and most significantly, the Court held that “coram nobis petitions with inadequate allegations are susceptible to summary dismissal on the face of the petition, without discovery or an evidentiary hearing.” Importantly, the vast majority of coram nobis petitions are filed by pro se inmates who have no right or ability to have an attorney assist them. As a result, this easily-overlooked bombshell will essentially end coram nobis relief across Tennessee, because vanishingly few pro se litigants will be able to draft a petition that successfully navigates the procedural morass necessary to state a cognizable claim for relief on their own. Thus, when coram nobis petitions are filed, nearly all of them will now be dismissed summarily: (1) without a response; (2) without a hearing; and (3) without the opportunity to have an attorney file an amended petition to correct any shortcomings in the inmate’s pleadings. As a consequence, for nearly all practical purposes, the writ of error coram nobis is now dead.
2. Growing Expansion of “Good Faith” Exception to Unlawful Searches
In State v. Lowe, the Tennessee Supreme Court addressed a suppression issue in a gruesome case involving two murdered newborns. The contested search warrant involved a magistrate’s “simple and good-faith clerical error of incorrectly indicating on one of three copies of the warrant that it was issued at 11:35 ‘PM’ while correctly indicating on the other two copies that it was issued at 11:35 ‘AM.’” Although there is an extremely good reason why law enforcement is required to state the time of issuance on a search warrant—it helps “ensure that the warrant is obtained [legally] before the search is conducted, not [illegally] afterwards”—the error in Lowe genuinely appeared to have been a clerical one committed in good faith.
Following a similar set of circumstances, in 2011, the Tennessee General Assembly enacted the “Exclusionary Rule Reform Act,” which provides that evidence “shall not be suppressed” if the court determines that the violation was the result of a good faith mistake or “technical” violation. In a holding that would traditionally be important, the Tennessee Supreme Court unanimously determined that, in enacting the ERRA, the General Assembly encroached upon the exclusive province of the judiciary in violation of the Tennessee Constitution’s separation of powers doctrine. Accordingly, the Court held that “the ERRA represents an impermissible encroachment by the legislature upon this Court’s authority,” and it invalidated the ERRA as unconstitutional.
Even so, the Court nonetheless did precisely what the ERRA instructed, and it adopted its central legislative demand as a matter of Tennessee common law. Notably, this is the second time in three years that the Tennessee Supreme Court has “asserted” its authority under the separation of powers doctrine, only to “acquiesc[e] to the standard proposed by the General Assembly” and adopt as a matter of Tennessee common law precisely what the legislature had promulgated as a matter of statute.
In sum: finding that “the magistrate’s good-faith mistake was inconsequential,” the Court held that “the exclusionary rule should not be applied under these circumstances,” and it declined to suppress the evidence gathered as a result.
3. Wholesale Embrace of the “Good Faith” Exception
Third and finally, in a case relying on its just-released decision in Lowe, the Tennessee Supreme Court took up State v. Daniel, a decision involving whether the “good faith” exception should apply when law enforcement fails to provide a defendant with a copy of a search warrant at all.
One scholar has written about the Tennessee Supreme Court’s breakneck sprint toward a wholesale “good faith” exception in Tennessee. Somewhat less noticed has been the fact that Tennessee Supreme Court has also changed the Tennessee Rules of Criminal Procedure to accommodate it, bolstering its permanence. Effective July 1, 2018, Rule 41 was amended to afford trial courts discretion to determine whether to exclude evidence that was gathered pursuant to a search warrant that is noncompliant with Rule 41. See 2018 Tenn. Ct. Order 0002, No. ADM2017-01892 (Tenn. 2018). The amendment altered the critical language of subsection (g)—which had stated that a motion to suppress “shall be granted” if a search warrant is defective—to read instead that the motion “may” be granted. This rule change, however, is merely a matter of formality, having already been adopted informally by judicial fiat. In 2015, in a cursory section on page 32 of its decision in State v. Corrin Reynolds, the Tennessee Supreme Court expressly held that the notion that the word “shall” in Rule 41 ever actually meant what it said “would be peculiar indeed.”
With this context in mind, the Court easily concluded that the “good faith” exception to unlawful searches applied in Daniel, finding that although the search warrant at issue was not provided to the defendant, the mistake was an honest one and did not result in any prejudice. As a consequence, while continuing to characterize the good faith exception as a “narrow” one despite decision after decision indicating otherwise, the Court determined that the evidence would not be suppressed.
The first proposal is a petition to amend Rule 25, governing the Tennessee Lawyers’ Fund for Client Protection. The proposed changes are detailed here. I have a problem with one of the proposals, which caps attorney compensation at the randomly low amount of $500.00. Such a rule would significantly interfere with what is typically a strongly-enforced right to contract. It would also have no result other than ensuring that clients can’t get legal representation to handle qualifying fraud claims. Simply stated: lectures on lawyers’ duties aside, no lawyer will work a complex case with a potential value of up to $250,000.00 for just $500 plus expenses, and there are other matters that are significantly more worthy of pro bono assistance. My concerns about this portion of the proposed change are detailed in this Twitter thread, and the text of the change at issue is as follows:
18.01. No lawyer shall charge or accept compensation for prosecuting a claim on behalf of a claimant unless approved by the Board (a) on a contingency basis or (b) in excess of a flat fee of $500.00 plus reimbursement of expenses. Lawyers owe a duty to the public to assist individuals wronged by members of the profession and may count hours spent assisting a claimant in the prosecution of a claim as pro bono hours if conducted without receiving a fee.
I gripe about problems with the way we regulate the legal profession a lot (e.g.: https://t.co/FMoBpnUSsp). There’s a proposed rule change that’s pending right now that provides an excellent example of bad regulation guaranteeing poor outcomes and unintended consequences.
The second proposed change is to amend Rule 13 to adjust the hourly rates and per-case caps for appointed indigent criminal defense work. $9.7 million in additional and much-needed funding was recently appropriated for indigent defense in Tennessee, which is currently in a state of crisis. The proposed changes are available here, and the TBA is soliciting input here. The changes, if adopted, would modestly increase case caps and compensate both in-court and out-of-court work at $50/hour.
Compensating in-court and out-of-court work at the same rate is a marked and arguably legally mandated improvement. However, as a whole, the changes are not nearly significant enough to address the catastrophic problems and perverse incentives involved in Tennessee’s indigent defense system. In particular, retaining case caps ensures a serious and rapid conflict of interest in appointed cases, because after attorneys spend between 10-60 hours on a defendant’s representation (depending on the type of case), the attorney stops getting paid. For instance, under even the improved case caps, a lawyer defending a client charged with First Degree murder will only be paid for the first 60 hours of work. Further, even if the case at issue is deemed especially “complex or extended”—a characterization that should apply to every serious felony case—a lawyer will only be compensated for a maximum of 120 hours of work no matter how long the case lasts. For cases that can often take years to resolve, the economic pressure to push a client to plead guilty after the cap has been hit is enormous.
For anyone interested in providing commentary on the proposed rules, written comments may be emailed to [email protected] or mailed to:
James Hivner, Clerk
Tennessee Appellate Courts
100 Supreme Court Building
401 7th Avenue North
Nashville, TN 37219-1407
In a resounding win, celebrated Nashville restaurateur Randy Rayburn has again beaten back a multi-million dollar defamation and false light lawsuit filed against him by Thomas Nathan Loftis, Sr., the former director of Nashville State’s culinary program. In a unanimous ruling, the Tennessee Court of Appeals affirmed the outright dismissal of Mr. Loftis’s claims on the basis that Loftis had advanced a “far-fetched and not a reasonable interpretation” of the statements that he had sued over, and that “the statements in the newspaper article are not defamatory as a matter of law.” The Court of Appeals also ordered Mr. Loftis to pay for the costs of the lawsuit, and it further ordered the Trial Court to determine whether Loftis must pay Mr. Rayburn’s legal fees.
Mr. Loftis’s lawsuit was novel in that it was filed over statements that had been authored by a Tennessean newspaper journalist in an article in which Mr. Rayburn—the supposed source of the statements at issue—was not even quoted. As a result, the lawsuit attempted to run an end-around Tennessee’s source-protection statutes, and it also served as a warning that anyone who is even referenced in a news article containing critical coverage can be threatened with multi-year, multi-million dollar litigation. Had the lawsuit been permitted to go forward, it stands to reason that news sources would have been far less likely to speak to journalists on the record or to interact with the media at all.
Significantly, the case also involved a stunning, outright acknowledgement from Mr. Loftis’s counsel that Mr. Rayburn had been sued in part because the newspaper that had actually published the statements at issue was more likely to be able to defend itself. Specifically, during oral argument before the Court of Appeals, Mr. Loftis’s counsel had the following exchange with the Court:
Judge Neal McBrayer: “Why isn’t the Tennessean the proper party here?”
Gary Blackburn (Attorney for Tom Loftis): “Your Honor, there were practical reasons for that . . . . It is easier to bring a lawsuit against the person who uttered the words than against a publication that buys ink by the barrel, as they say, and has lots of resources.“
Unfortunately, this strategy—which is rarely acknowledged so openly—is all-too-common in the defamation world. Given the enormous costs of civil litigation, powerful people seeking to stifle criticism often file flagrantly baseless claims against those perceived to have limited resources in the hopes of being able to censor them. As a result, as the author has explained previously, being able to sue for defamation “provide[s] enormous space for the powerful and well-resourced to threaten, censor, abuse, and intimidate those who lack the means, knowledge, or fortitude to defend themselves.”
All considered, the Court of Appeals’ decision constitutes a total victory and complete vindication for Mr. Rayburn, who has maintained that the lawsuit was frivolous from the beginning. “We’re thrilled about this resounding win, which fully vindicates Mr. Rayburn and the First Amendment yet again,” said Daniel Horwitz, Mr. Rayburn’s attorney. “Filing a lawsuit this frivolous was a very poor decision, and unfortunately for Mr. Loftis, it is about to become an expensive one as well.”
The Court of Appeals’ unanimous decision, authored by Judge Andy Bennett, is available here. Selected case documents and media coverage are available below.
