Tag Archives: Constitutional Law

The Tennessee Bureau of Investigation Lacks Authority to Violate Court Orders, Rules Tennessee Supreme Court

Civil Procedure, Constitutional Law, Criminal Law, Expungement,

“The determination of whether an offense is eligible for expunction is an obligation entrusted to courts, not the TBI[,]” the Tennessee Supreme Court has ruled.  Accordingly, “the TBI lacked authority to refuse to comply” with a final and unappealed expungement order that no statute “authorize[d] the TBI to disregard or revise[.]”  The Tennessee Supreme Court’s unanimous opinion powerfully vindicates expungement rights under Tennessee law, the right of Tennesseans to sue the government for acting illegally, and citizens’ right to demand that the government comply with court orders.

The case arose out of a years-old expungement order that was entered by agreement of a District Attorney and approved by a judge following a diversionary plea agreement.  When such an expungement order is entered, Tennessee law obligates the Tennessee Bureau of Investigation to process it within sixty days of receipt.  In lieu of complying with the court’s order, though—and at the urging of Tennessee Deputy Attorney General Scott Sutherland and other misbehaving members of his office—the TBI opted to violate it, believing that the order was wrong.  “But no statute grants the TBI authority to independently review and decline to comply with a final expunction order it considers erroneous,” the Tennessee Supreme Court explained.  Further, as the Plaintiff noted, “willfully disobeying a final court order at the urging of counsel is ‘lawless behavior that would land any other contemnor in jail and would subject any other attorney to professional discipline.’”

Along the way to reaching this holding, the Tennessee Supreme Court forcefully affirmed Tennesseans’ rights to sue the government for acting illegally.  As relevant to the case, in 2018, the Tennessee General Assembly enacted a critical new statute—Tennessee Code Annotated § 1-3-121—that established the right of “any affected person” to sue the government “regarding the legality or constitutionality of a governmental action.”  In full, Tenn. Code Ann. § 1-3-121 provides that:

“Notwithstanding any law to the contrary, a cause of action shall exist under this chapter for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.  A cause of action shall not exist under this chapter to seek damages.”

Despite the clarity of this statute, the Tennessee Attorney General’s Office spent the next several years arguing in transparent bad faith that the statute was meaningless; that it did not mean what it said; and that it did not permit any lawsuits to be filed against state government at all.  But “[t]he General Assembly clearly and unmistakably waived sovereign immunity by enacting Tennessee Code Annotated section 1-3-121,” the Tennessee Supreme Court explained, and “[t]he plain meaning of this text expressly recognizes the existence of causes of action ‘regarding the legality or constitutionality of a governmental action’ that seek declaratory or injunctive relief.”  Accordingly, the Tennessee Supreme Court ruled that the Plaintiff’s lawsuit against the TBI and its Director for willfully violating a court order was permissible, and it ordered a lower court to grant the Plaintiff’s claim for injunctive and declaratory relief, which the court had to that point denied.

“We appreciate the Tennessee Supreme Court unanimously vindicating our client’s expungement rights,” said Horwitz Law PLLC attorney Daniel A. Horwitz, who represented the Plaintiff along with co-counsel Lindsay Smith.  “However, we are disturbed that the Tennessee Attorney General’s Office had to be reminded by a court yet again that its job is to uphold the law, not to encourage government officials to violate it.  Having engaged in lawless behavior that would land any other contemnor in jail and that would subject any other attorney to professional discipline, we hope that Director Rausch and Attorney General Slatery won’t need to be reminded again.”

The TBI and its Director, David Rausch—who asserted the government’s entitlement to violate court orders—were unsuccessfully represented in the case by attorneys Rob Mitchell (BPR 32266), Miranda Jones (BPR 36070), and Mallory Schiller (36191) of the Tennessee Attorney General’s Office.  In advance of the Tennessee Supreme Court’s unanimous reversal, they opposed appellate review in the case on the basis that “there is no probability of reversal.”  Contact them at @TNattygen.

The Parties’ oral argument in the case can be viewed here.  The Plaintiff’s briefing in the case is linked below.

Principal Brief: https://horwitz.law/wp-content/uploads/Principal-Brief-of-Appellant-Stampfiled.pdf

Reply Brief: https://horwitz.law/wp-content/uploads/Appellants-Reply-Brief.pdf

Read the Tennessee Supreme Court’s unanimous opinion in Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279 v. David B. Rausch, Director of the Tennessee Bureau of Investigation, and Tennessee Bureau of Investigation, authored by Justice Sharon G. Lee, here: https://www.tncourts.gov/sites/default/files/recipient.of_.finalexp.3279.opn_.pdf

Tennessee Court of Appeals Affirms First-Ever Anti-SLAPP Judgment Under the Tennessee Public Participation Act

Civil Procedure, Constitutional Law, Defamation, First Amendment, Judgments, Tort Law, ,

In a precedent-setting, unanimous ruling, the Tennessee Court of Appeals has affirmed the first trial court judgment ever issued under the Tennessee Public Participation Act, Tennessee’s recently enacted anti-SLAPP statute.  The ruling establishes several critical precedents for free speech law in Tennessee, and it represents a total victory for Wilson County woman Kelly Beavers, who has spent nearly two years defending her constitutional right to post a negative review on Yelp!.

“This precedent-setting victory for Ms. Beavers and her family sends a clear warning to anyone who would abuse the judicial process in an attempt to censor honest, critical consumer reviews and other constitutionally protected speech,” said Horwitz Law, PLLC attorney Daniel Horwitz, a First Amendment, anti-SLAPP, and speech defense lawyer who represented Ms. Beavers along with Sarah Martin.  “The First Amendment protects every person’s right to speak freely, and this ruling makes clear that the consequences for plaintiffs who file baseless defamation suits in Tennessee will be severe.”

The case at issue arose out of a lawsuit filed by Dr. Kaveer Nandigam and his corporation, Nandigam Neurology, PLC, against Kelly Beavers regarding a negative Yelp! review.  After Ms. Beavers took her father to see Dr. Nandigam and had a terrible experience there, she exercised her First Amendment right to post a negative review on Yelp!, a popular consumer review website.  Dr. Nandigam threatened to sue her if she did not remove the review, and ultimately, he did sue her for defamation and false light invasion of privacy regarding it when she refused to do so.

After Dr. Nandigam dismissed and then refiled his lawsuit against her, Ms. Beavers filed a Petition to Dismiss the Plaintiffs’ claims under the Tennessee Public Participation Act.  Ms. Beavers’ petition was granted, and the Tennessee Court of Appeals has now affirmed that dismissal in its entirety while ordering the Plaintiffs to pay Ms. Beavers’ legal fees and potential sanctions.  “As [Ms. Beavers] aptly notes in her principal brief, ‘the TPPA . . . was designed to prevent and deter such abuse, not to enable it,'” the Court of Appeals ruled.  Ms. Beavers’ claims for attorney’s fees and sanctions against Dr. Nandigam remain pending and will be adjudicated upon remand.  The Court of Appeals’ opinion additionally orders that: “We remand this matter to the general sessions court for a determination of the proper amount of reasonable fees incurred by Defendant during this appeal” as well.

Read the Tennessee Court of Appeals’ unanimous ruling in Nandigam Neurology, et al. v. Kelly Beavers here: https://www.tncourts.gov/sites/default/files/nandigamneurologyv.beavers.opn_.pdf

 

Happy 1-3-121 Day to (Almost) All Tennesseans!

Constitutional Law, Tennessee Constitutional Law, ,

By Daniel A. Horwitz

Few would disagree that the government shouldn’t be permitted to act illegally.  In a frighteningly large number of instances, though—due to outmoded doctrines like sovereign immunity, qualified immunity, and absolute immunity for certain government officials—the government can act illegally without experiencing legal consequences for doing so.  The result of that legal construct is that government officials are often free to violate state statutes or provisions of the Tennessee Constitution and the U.S. Constitution without risk, leaving those who are victimized by governmental misconduct unable to do anything about it.

Happily, in 2018, the Tennessee General Assembly enacted a little-noticed law that has had profound practical effects.  Codified at Tenn. Code Ann. § 1-3-121, it provides that:

“Notwithstanding any law to the contrary, a cause of action shall exist under this chapter for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.  A cause of action shall not exist under this chapter to seek damages.”

As a result of Tenn. Code Ann. § 1-3-121, it is now possible for victims of governmental misconduct in Tennessee to obtain certain forms of relief—specifically, declaratory judgments and injunctions—regarding illegal or unconstitutional governmental actions.  And obtain relief under Tenn. Code Ann. § 1-3-121 they have.  As a few examples:

1.  Tennessee’s Bureau of Ethics and Campaign Finance, Registry of Election Finance has been permanently enjoined from enforcing an unconstitutional law that allowed partisan political action committees to participate in the political process just before an election, while prohibiting non-partisan political action committees from doing the same.

2.  Metro Nashville and its ex-Director of Schools have been permanently enjoined from enforcing a contractual gag order against dissenting School Board Members that prevented them from criticizing the ex-Director of Schools—a provision that was also declared illegal as a violation of the First Amendment and multiple state provisions.

3.  A criminal law that exclusively prohibited “false” statements about political candidates—including satire and parody—in campaign literature has been declared unconstitutional under the First Amendment.

4.  The Tennessee Board of Cosmetology and Barber Examiners has been permanently enjoined from enforcing a law that prevented a man from working as a barber solely because he did not have a high school diploma.  And:

5.  The State of Tennessee has been permanently enjoined from implementing a selectively-targeted school voucher law in violation of the Home Rule provision of the Tennessee Constitution.

These examples are not exhaustive.  For example, a lawsuit is presently pending under Tenn. Code Ann. § 1-3-121 to enjoin notorious private prison operator CoreCivic from systematically refusing to maintain a constitutionally adequate level of inmate safety and systematically failing to provide inmates constitutionally adequate health care at its scandal-prone Trousdale Turner Correctional Center.  Additionally, even failed lawsuits—like a lawsuit filed by the Tennessee Democratic Party and U.S. Senate candidate Marquita Bradshaw regarding public records access—have been adjudicated on their merits due to Tenn. Code Ann. § 1-3-121, rather than being dismissed upfront based on the premise that the government cannot be sued at all.

All of this is great news if you believe that the government should be held accountable for breaking the law.  To be sure, though, enacting Tenn. Code Ann. § 1-3-121 should not actually have been necessary.  At least since the Tennessee Supreme Court’s decision in Colonial Pipeline Company v. Morgan—a 2008 opinion addressing litigants’ right to sue the government for declaratory and injunctive relief regarding constitutional violations—it has been clear that “sovereign immunity simply does not apply to a declaratory judgment action challenging the constitutionality of a statute against state officers.”  That decision, however, did not stop Tennessee’s flagrantly dishonest and democracy-hating Attorney General from arguing that the Tennessee Supreme Court’s decision should be ignored and that such claims should be disallowed anyway.[1]  Thus, the General Assembly felt compelled to make clear, beyond any serious dispute, through Tenn. Code Ann. § 1-3-121 that: “Notwithstanding any law to the contrary, a cause of action shall exist under this chapter for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.”  Remarkably, the Attorney General’s Office continues to argue that such lawsuits still should not be allowed regardless of what Tenn. Code Ann. § 1-3-121 unambiguously says on the matter.  Unsurprisingly, those arguments have not proven successful.

Tenn. Code Ann. § 1-3-121 also falls short in a critical respect.  In particular, it makes clear that “[a] cause of action shall not exist under this chapter to seek damages.”  Consequently, because damages generally are not allowed in Tennessee for state constitutional or statutory violations under any other provision, either, many individuals who are deprived of their rights or injured by illegal governmental conduct are left without a complete remedy.  Thus, to ensure that the government can be held fully accountable and deprived of any incentive to act illegally, there remains work left to be done to vindicate the Tennessee Constitution’s still-illusory guarantee that: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”

Nonetheless, it is clear at this point that Tenn. Code Ann. § 1-3-121 has ushered in a new era of governmental accountability across Tennessee.  Thus, to everyone except government officials who behave illegally: Happy 1-3-121 Day to you and yours.

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[1] When pressed during oral argument on the issue in the past, the Office of the Attorney General has been somewhat more candid about its actual position on the matter:  It believes that “Colonial Pipeline was wrongfully decided,” and that it “is an overbroad decision.”  See Transcript of Aug. 17, 2018 Hearing in Zarate v. The Tennessee Board of Cosmetology and Barber Examiners, Davidson County Chancery Court Case No. 18-534-II, p. 11, lines 9–13.

Davidson County Chancery Court Invalidates School Board Censorship Clause in Ex-MNPS Director Shawn Joseph’s Severance Agreement

Constitutional Law, First Amendment, Tennessee Constitutional Law,

In an order issued earlier this afternoon, Davidson County Chancery Court Judge Ellen Hobbs Lyle ruled in favor of Plaintiffs Amy Frogge, Fran Bush, and Jill Speering, who earlier this year sued Metro and ex-MNPS Director Shawn Joseph over the legality of the School Board censorship clause contained in Joseph’s severance agreement.  In a Memorandum Order, Chancellor Lyle struck down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.

Among other things, the clause prohibited elected School Board members even from truthfully criticizing “Dr. Joseph and his performance as Director of Schools.”  Upon review of it, Chancellor Lyle ruled that the clause violated the Plaintiffs’ First Amendment rights, unlawfully prohibited them from speaking honestly with their constituents, and violated established Tennessee public policy.  As a result, the clause was invalidated as unenforceable.  Metro and Joseph will additionally be required to pay the Plaintiffs’ “reasonable costs and attorney’s fees,” which have been pledged to charity.

“This is a landmark victory on behalf of both elected officials’ free speech rights and citizens’ right to hear from their elected representatives,” said attorney Daniel Horwitz, who represented all three Plaintiffs.  “Metro and Joseph should be ashamed of their efforts to gag elected officials and prevent them from speaking honestly with their constituents about issues of tremendous public importance, and their illegal attempt to do so should serve as a costly warning to other government officials to think twice before violating the First Amendment.”

Daniel Horwitz is a First Amendment lawyer who represents clients across Tennessee.

###

White County, Tennessee Inmate Sterilization Program Terminated By Historic Order

Constitutional Law, Criminal Law, Criminal Procedure, , ,

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.

–Consent Decree and Final Order

–6th Circuit Opinion Reversing District Court

–Plaintiffs’ Complaint for Injunctive and Declaratory Relief

–Plaintiffs’ Memorandum in Support of Summary Judgment

–6th Circuit Brief of Plaintiffs-Appellants

Selected Media Coverage:

-The Tennessean: Federal court order officially ends Tennessee ‘inmate sterilization’ program

-Vice: A Tennessee County Wanted to Sterilize Inmates for Shorter Sentences. That’s Over Now.

-Fox 17: Tennessee inmates win suit against judge who offered sentencing credits for sterilization

-IFL: Federal Court Ends Tennessee’s Controversial Inmate Sterilization Program

-News Channel 5: White County Inmate Sterilization Program terminated by federal ruling

-The Tennessean: Court revives lawsuit against judge who shortened jail time if inmates got ‘sterilized’

-The Washington Post: Tennessee judge reprimanded for offering reduced jail time in exchange for sterilization

-The Tennessean: 2nd lawsuit challenges Tennessee county’s inmate birth control practice

-WSMV Channel 4: Judge under scrutiny for offering reduced sentences for vasectomies, birth control implants

-BBC News: ‘We were guinea pigs’: Jailed inmates agreed to birth control

-ScotBlog: Lawsuit Seeks to End White County’s Ongoing Sterilization Program

Tennessee Supreme Court Clarifies Sentencing Provision in Cyntoia Brown Case; Media and Public Badly Misunderstand the Court’s Opinion

Constitutional Law, Criminal Law,

By Daniel A. Horwitz

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.

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MTSU was denied a law school.  Was the Higher Education Commission’s decision legal?

Constitutional Law, Tennessee Constitutional Law, ,

By Daniel A. Horwitz

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]

Nor is the legal prohibition against raw protectionism a dead letter.  Over the past two years, a series of high-profile victories—from the case of bar applicant Maximiliano Gluzman to the case of on-demand beauty and health service provider Project Belle—were specifically defended on that basis, and recent Tennessee statutory law similarly provides that “arbitrarily limiting entry and reducing competition” is not a legitimate public purpose.  In sum:  At least in Tennessee, the prohibition against economic protectionism is real, it is meaningful, and it is enforceable.

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.

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[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.”).

Tennessee Supreme Court Releases Trio of Decisions Restricting Criminal Defendants’ Rights

Constitutional Law, Criminal Law, Criminal Procedure, , ,

By Daniel A. Horwitz

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.

***

Taken together, the Tennessee Supreme Court continues its steady campaign to restrict the rights of the criminally accused.  As a result, criminal defendants in Tennessee—particularly those who are innocent—may be forced to turn to federal courts for habeas corpus relief under equitable exceptions that excuse defendants’ failure to comply with inadequate state processes instead.

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Supreme Court Solicits Comments on Proposed Rule Changes

Constitutional Law, Contract Law, Criminal Law, Tennessee Court Rules, , ,

By Daniel A. Horwitz

Following the demise of proposed Rule 8.4(g) last month—a well-intentioned but dangerous and constitutionally infirm speech code—two additional rule changes have been proposed to the Tennessee Supreme Court for consideration.  The court is currently soliciting comments on both proposals.

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.

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

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Restaurateur Wins Defamation Suit (Again)

Constitutional Law, First Amendment, ,

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.

Given the serious threat that the case posed to the viability of newsgathering in Tennessee, the lawsuit attracted national attention from First Amendment organizations like The First Amendment Center’s Newseum Institute and TechDirt.  Following a disturbing trend in local media of inflating the legitimacy of almost uniformly baseless defamation lawsuits when they are filed but failing to cover them after they fail, however, the Court of Appeals’ decision has gone unreported in Nashville.

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.

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Selected Case Documents:

–Plaintiff’s First Amended Complaint

–Defendant’s Motion to Dismiss First Amended Complaint

–Plaintiff’s Response to Motion to Dismiss (1)/Plaintiff’s Response to Motion to Dismiss (2)

–Defendant’s Reply to Plaintiff’s Response

–Transcript of Hearing on Defendant’s Motion to Dismiss

–*Order Dismissing Plaintiff’s Complaint With Prejudice

–Brief of Plaintiff-Appellant Thomas Nathan Loftis, Sr.

–Brief of Defendant-Appellee and Cross-Appellant Randy Rayburn

–*Appellate Court Order Denying Plaintiff’s Appeal and Remanding for Consideration of Attorney’s Fees Award

Selected Media Coverage:

-The Tennessean: Defamation lawsuit against restaurateur Randy Rayburn dismissed — again

-TechDirt: Judge Dumps Stupid Libel Suit Featuring A Man Suing A Third Party For Things A Journalist Said

-Nashville Business Journal: Nashville restaurateur Randy Rayburn faces $1.5 million lawsuit

-TechDirt: Former University Official Files Libel Lawsuit Against His Replacement For Things A Journalist Said

-Nashville Business Journal: Judge dismisses $1.5M suit against well-known restaurateur

-First Amendment Center’s Newseum Institute: Unusual Defamation Suit Targets Source of Story