Monthly Archives: January 2016

The law protects victims of sexual harassment and domestic violence, even when elected officials do not.

By Daniel Horwitz:

The past week has been a terrible one for victims of sexual harassment and domestic violence.  Two high profile scandals—both involving elected officials—suggest that any number of Tennessee’s politicians have no qualms about leveraging their positions of power to harass, abuse and intimidate women.  The first scandal involves allegations that State Representative Jeremy Durham—a member of the Republican leadership until just a few days ago—sexually harassed legislative staff and interns repeatedly and without hesitation.  The second involves allegations that Nashville Metro Councilmember Loniel Greene—who resigned his seat last night effective immediately—used his position as a public official to intimidate a victim of domestic violence.  According to a recorded phone call, Greene threatened a woman who had reported a domestic violence incident, stating:  “Bitch, I’m smarter than you.  You try to play the system, motherfucker I am the system.”  After stating that “she’s going to have to be shut down,” Councilman Greene then “work[ed] on” the alleged victim in an attempt to silence her.

The response to these allegations from other elected officials was tepid at best.  For example, in an utterly tone-deaf statement that placed responsibility for Representative Durham’s alleged sexual harassment squarely on the shoulders of those who were believed to have been the victims of it, House Speaker Beth Harwell announced that: “I have instructed the Director of the Internship program that interns are not to attend receptions or events related to the legislature, and they are not to give their cell phone numbers to members.”  The response to Councilman Greene’s scandal was similarly listless.  Prior to his resignation, exactly two out of forty total Metro Councilmembers—Councilman Bob Mendes and Councilman Jeremy Elrod—condemned the allegations, while the Mayor suggested that Councilman Greene should consider resigning because the allegations could “becom[e] a distraction.”

In sharp contrast, however, the response by women’s advocates was considerably more pointed.  Said Pat Shea, CEO of the YWCA of Nashville & Middle Tennessee[1]:

“The YWCA of Nashville & Middle Tennessee is appalled at news accounts of a current domestic violence case involving a newly elected Metro Councilman.  How is it that persons in positions of power in Nashville are able to misuse that power to silence victims?  How is it that processes, put in place to protect victims, are not followed?  These patriarchal behaviors raise serious questions about whether we are able to trust the systems set up to protect victims.

As advocates, we are constantly asked ‘why women do not report abuse; why women will not prosecute; why women cannot just leave.’  This recent high profile incident provides a perfect example of why victims don’t, won’t, and can’t.  We want Nashville to be a place where all of our leaders work to make Nashville safer for victims of domestic violence, not more dangerous. ”

Added Sara Beth Myers of AWAKE (Advocates for Women’s and Kids’ Equality):

“Tennesseans should be confident in our laws that protect victims of harassment both in the civil and criminal context. The offices of our state and local elected officials should be paragons of professionalism and transparency, setting an example for every other workplace in Tennessee. In a state in which women are so underrepresented in our legislature, lawmakers and policymakers should be especially deliberate about interacting with their female colleagues both legally and respectfully. The past week’s events revealed a situation in our government that we should all deem unacceptable.”

The presumption of innocence is obviously of paramount importance and should not be discounted.  As such, pending the outcome of formal legal proceedings against Representative Durham and former Councilman Greene, those who have resisted making public condemnations are entitled to the benefit of the doubt.  Elected officials’ collective disregard for the alleged victims of these incidents, however, is far more difficult to explain.  Protecting victims of harassment and domestic violence and protecting the presumption of innocence are not incompatible concepts.  A legal system that fails to do both at once holds little value.

To be absolutely clear at a time when too many elected officials haven’t been: victims are not responsible for being sexually harassed, beaten, or intimidated.  Sexual harassment is illegal.  Domestic violence is illegal.  Intimidating a victim of domestic violence is illegal.  Retaliating against a victim who reports being abused is illegal.  All such acts are despicable.  None should ever be tolerated.

The law protects victims of harassment, violence and abuse.  If you have been victimized, resources are available to help you.  If you’re in danger, you can reach the YWCA’s 24-hour crisis and information line at (615) 242-1199 or toll free 1-800-334-4628.  The Legal Aid Society of Middle Tennessee and the Cumberlands has free lawyers available to help those who have been victims of domestic violence, including providing free divorce services and helping victims obtain orders of protection.  The District Attorney’s Office has a Victim Witness Services Division that is exclusively dedicated to helping victims navigate the legal system.  The Tennessee Coalition to End Domestic and Sexual Violence makes a multitude of free resources available to victims of domestic violence and sexual abuse.  Many employment lawyers, although they are not free, will take sexual harassment cases on a contingency basis.  All of these resources exist to help empower victims and stop the cycle of abuse.

It is also important to shed light on the many existing policy shortcomings that need fixing.  Although late in coming, legislative leaders have already acknowledged that the General Assembly’s current sexual harassment policy needs to be overhauled, because “staffers and others who are regularly at the Capitol do not feel comfortable coming forward.”  Sadly, the same is often true of the criminal justice system.  In many instances, for example, the names of victims of domestic and sexual violence are made publicly accessible on arrest warrants, which discourages a significant number of victims from reporting.  There is also a pending dispute in the Tennessee Supreme Court over whether victims’ private, personal information becomes a public record under Tennessee law once their records have been turned over to law enforcement.  On behalf of several domestic and sexual violence prevention advocates who participated in the case as amici curiae, the author has argued that it does not, but the Tennessee Supreme Court will have the final say.  Additionally, the legislature’s failure to adapt to modern forms of harassment has left a void in victims’ protection against abuses such as non-consensual pornography—otherwise known as “revenge porn”—and harassment via electronic media, such as text messages and facebook.

These shortcomings certainly need to be corrected.  While that happens, however, don’t wait.  The law protects victims of sexual harassment and domestic violence, even when elected officials do not.  If you need help, help is available.

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[1] In the interest of full disclosure, the author is a member of the YWCA’s Board of Directors.

Yes, you may legally vote in another party’s primary under Tennessee law.

By Daniel Horwitz:

It’s election season!  In addition to junk mail and jingles, if there’s anything that’s absolutely guaranteed to take place in Tennessee this time of year, it’s an unresolved dispute over whether or not it’s illegal to vote in another party’s primary election.  So is it?

According to the Bernie Sanders campaign, whether you’re a Democrat or not, voting in the Democratic primary is legal.  “Tennessee has open primaries.  Tennesseans can vote for Bernie Sanders regardless of their registered party,” his website declares.  In sharp contrast, however, during several past election cycles, others have taken a markedly different view.  In May 2014, for example, Maury County’s Election Commission formally censured one of its Democratic members for voting in the local Republican Primary.  “Contrary to many public pronouncements by various people, a party primary is not open to anyone to come and essentially make a mockery of the process,” proclaimed Commission member Jason Whatley.  “People who disagree with that are disagreeing with the law and they’re demonstrating a gross misunderstanding of what the law says.”[1]

Despite protestations from many in Commissioner Whatley’s camp, however, the reality of Tennessee law is quite different.  Specifically, unless your party membership has been formally challenged under an obscure procedure that is virtually never utilized, voting in the primary election of a party with which you are not typically affiliated is not illegal at all.  The reasons why, however, require considerable explanation.

In the election law world, the practice of voting in the primary election of a party with which a voter is not traditionally affiliated is known as “crossover voting.”  Alternately considered insidious or a laudable expansion of democracy depending on who is benefiting from it, voters frequently engage in crossover voting for any number of reasons.  For example, a Republican voter might be so disgusted with her party’s candidates in a particular election that she decides to affiliate with the Democratic Party for a single election cycle instead.  Other voters—particularly those who live in highly gerrymandered districts—might vote in an opposing party’s primary in order to exert meaningful influence (called “hedging”) in the ultimate selection of their representatives, given that the winner of the opposing party’s primary is likely—or, in many cases, guaranteed—to win the general election down the road.[2]  Alternatively, a Democratic voter might try to bolster his party’s chances of winning a general election by crossing over and voting for a weak Republican primary candidate who is comparatively less likely to prevail against his Democratic candidate of choice—a tactic known as “raiding.”[3]

With respect to this latter tactic, it’s worth noting that supporters of both parties have a rich history of organizing “crossover raiding” drives in an attempt to sabotage their opponents’ chances of winning a general election victory.  In 2012, for example, in an effort to bolster Rick Santorum’s chances of becoming the Republican nominee for President over Mitt Romney, liberal activist Markos Moulitsas generated national media attention by encouraging Democrats to crossover to the Republican Primary and vote for Santorum.[4]  Similarly, in 2008, conservative talk radio host Rush Limbaugh encouraged Republicans to crossover and vote for Hillary Clinton in their respective states’ Democratic primaries when then-Senator Barack Obama began surging ahead in the polls.[5]  Although neither of these efforts turned out to be effective, successful crossover raiding has been blamed for primary victories of candidates in any number of elections, including Presidential primary victories in Michigan by George Wallace, Jesse Jackson and John McCain.[6]  A successful crossover voting campaign was also given credit, in part, for the controversial 2008 primary victory of former Tennessee State Senator Rosalind Kurita over challenger Tim Barnes,[7] which was ultimately vacated under internal party procedures by the Tennessee Democratic Party.[8]

Unsurprisingly, in the roughly fifteen states where voters are not required to declare their party affiliation in order to vote in a particular party’s primary, crossover voting is simple, and it is unquestionably legal.  To crossover, a voter in such an “open primary” state need only show up on election day and ask to vote in her primary of choice.  The voter will then be given the opportunity to cast her vote in that party’s primary with no questions asked.

In other states, however, voters are prevented (or, at least, hindered) from engaging in crossover voting because the states hold “closed primaries.”  In closed primaries, only voters who are expressly affiliated with a particular party may vote in that party’s primary elections.  In several jurisdictions—Kentucky, for example—this affiliation requirement effectively eliminates crossover voting because in order to vote in a party’s primary, a voter must be pre-registered with the party long before voting begins.[9]  In other closed primary states, however—Iowa, for instance—the affiliation requirement is effectively meaningless, because voters are permitted to change their party affiliation up until and even on election day itself.[10]

Tennessee falls into the latter category—a technically closed primary state, but one in which the party affiliation requirement exists only in theory.  To start, Tennessee law does not impose any registration requirement on voters whatsoever.  In fact, there is no such thing as party registration in Tennessee.  Instead, the only affiliation requirement contained in Tennessee law is found in Tenn. Code Ann. § 2-7-115(b), which provides that:

“A registered voter is entitled to vote in a primary election . . .  if:

(1) The voter is a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote; or

(2) At the time the voter seeks to vote, the voter declares allegiance to the political party in whose primary the voter seeks to vote and states that the voter intends to affiliate with that party.”

“A bona fide member” of a political party?  “Declares allegiance”?  What do these things even mean?  Additionally, who decides whether someone is a bona fide member of a political party or not?  And how are these requirements even enforced, anyway?

The broad answer to each of these questions is that it’s entirely up to the parties themselves.  Political parties are private organizations.  Accordingly, they enjoy an unquestioned First Amendment right to decide their own membership criteria and to exclude or include anyone they see fit.  See, e.g., Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1188 (2008) (“a party’s right to exclude is central to its freedom of association.”); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981) (“the freedom to associate for the common advancement of political beliefs necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.”) (internal quotation omitted); California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (“our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selects a standard bearer . . . .”) (internal quotations and alterations omitted).   As such, the definition of a “bona fide” member of a particular political party is left exclusively to political parties themselves.[11]

Notably, given this framework, it is also possible to be a bona fide member of both the Democratic Party and the Republican Party (or any other political party) at the same time.  In fact, although Tennessee law prohibits candidates from appearing on the ballot under two separate parties, history offers multiple examples of the same candidate being selected as the nominee of more than one party in the same election—a practice known as “electoral fusion.”  For example, in 1946, future U.S. Supreme Court Justice Earl Warren—who was then the incumbent Governor of California—became the only gubernatorial candidate in California’s history to win both the Republican and Democratic nominations for the state’s governorship.[12]  As such, the fact that a person is considered a “bona fide” Republican by the Tennessee Republican Party does not necessarily foreclose that person from being considered a “bona fide” Democrat by the Tennessee Democratic Party as well.  For precisely the same reason, there would be nothing untoward about a traditionally Republican voter seeking to vote in the Conservative Party’s primary, or a traditionally Democratic voter seeking to vote in the Green Party’s primary.

It is for these reasons that several public officials have erred so substantially in concluding that an individual who traditionally affiliates with one party cannot lawfully attempt to affiliate with another by voting in its primary.[13]  For one thing, public officials have absolutely no authority to determine party membership—only parties do.  For another, affiliating with one political party does not categorically preclude a voter from affiliating with another, since political parties are not necessarily incompatible with one another.  All contrary conclusions reflect a fundamental misunderstanding of the First Amendment as it applies to political parties’ freedom of association.

Enforcement of Bona Fide Party Membership

As noted, however, the Supreme Court has recognized that the First Amendment’s right to freedom of association affords political parties the right to exclude voters from voting in their primaries as well.  See, e.g., La Follette, 450 U.S. at 122 (“the inclusion of persons unaffiliated with a political party may seriously distort its collective decisions—thus impairing the party’s essential functions—and [] political parties may accordingly protect themselves from intrusion by those with adverse political principles.”) (internal quotation omitted).  Accordingly, any political party is well within its rights to exclude a voter from its membership, thus rendering the voter ineligible to participate in the party’s primary.

Under Tennessee law, however, the only mechanism for enforcing political parties’ right to exclude voters from participating in their primaries is found in Tenn. Code Ann. § 2-7-126, which provides that:

“A person offering to vote in a primary may . . . be challenged on the ground that the person is not qualified under § 2-7-115(b).  Such a challenge shall be disposed of under the procedure of §§ 2-7-123 — 2-7-125 by the judge or judges and the other election officials of the party in whose primary the voter applied to vote, with a total of three (3) to decide the challenge.”

In turn, the highly complicated (and practically useless[14]) procedure found in §§ 2-7-123 — 2-7-125 provides that:

“If any person’s right to vote is challenged by any other person present at the polling place, the judges shall present the challenge to the person and decide the challenge after administering the following oath to the challenged voter: “I swear (affirm) that I will give true answers to questions asked about my right to vote in the election I have applied to vote in.”  A person who refuses to take the oath may not vote.

. . . .

The judges may ask any question which is material to deciding the challenge and may put under oath and ask questions of such persons as they deem necessary to their decision. The judges shall ask the administrator of elections to check the original permanent registration records if the voter claims to be registered but has no duplicate permanent registration record.

. . . .

(a) If the judges determine unanimously that the person is not entitled to vote, the person shall vote by paper ballot and the person’s ballot shall be deposited in a sealed envelope marked “Rejected” with the person’s name, the reason for rejection, and the signatures of the judges written on it.

(b) If the judges do not agree unanimously to rejection, the person shall be permitted to vote as if unchallenged.”

Thus, in order to prevent a prospective voter from voting in a party’s primary, the voter must:

  1. Be recognized by a Party “challenger” before casting a vote;
  2. Be challenged on the spot; and
  3. Have that challenge adjudicated unanimously by three previously-appointed Party judges.[15]

Then—but only then—could it conceivably become illegal for a voter to attempt to vote in a particular party’s primary.[16]  For obvious reasons, however—namely, that it is impossible and economically infeasible to carry out party purity challenges across the state in primary elections during which several hundred thousand (or more) votes are often cast—this process simply does not occur in nature.  As such, in practice, nothing prevents a traditionally Democratic voter from voting in the Republican Party’s primary or vice versa.  Under Tennessee law, such a practice—whether pursued for nefarious reasons or otherwise—is perfectly legal unless and until the voter’s right to participate has specifically been challenged by a party official and formally adjudicated against her.

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[1] This particular incident also prompted State Election Coordinator Mark Goins to send a threatening letter – illegally, in the author’s view – to all 475 county Election Commissioners indicating that “they will be subject to removal by the State Election Commission” if they vote in another party’s primary.  See Andy Sher, Tennessee’s county election commissioners can only vote in their party’s primary, Times Free Press (Jul. 28, 2014),  At the time, at least one attorney spoke out against the policy to note – correctly, in the author’s view – that such a threat violated the First Amendment.  Id. (“the state’s new directive is already coming under fire from Chattanooga attorney Jerry Summers, a Democratic member on the Hamilton County Election Commission.  Summers said Saturday in an interview that he doesn’t believe the state’s order passes muster under federal guarantees of free speech and assembly under the U.S. Constitution.”).

[2] See, e.g., Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at (“In northeast Tennessee, Republicans are all but guaranteed a victory come November, meaning that it is very often the case that the primary election is, for all intents and purposes, “the race,” as Lt. Governor Ramsey himself noted when asked for his stance on the primary question. For that reason, liberal voters who want to actually have some say in the election may do well to cross over in late summer to nominate a Republican candidate whose views align closer to their own.”).

[3] See, e.g., Seok-ju Cho and Insun Kang, Open primaries and crossover voting, Journal of Theoretical Politics (2014).

[4] Joseph B. White, Michigan: Inviting Crossover Voting?, The Wall Street Journal (Feb. 23, 2012), available at

[5] Aaron Blake, Michigan Democratic Party encourages crossover voting in GOP presidential primary,  The Washington Post (Feb. 22, 2012), available at

[6] Id. 

[7] Jeff Woods, Devil Woman: Scorned by her own political party, Rosalind Kurita is defiant and determined, The Nashville Scene (Oct. 23, 2008), (“Barnes contested the results, charging essentially that Republicans commandeered the Democratic primary by organizing a crossover campaign”); David J. Luciano, The flip side of the 9/13 Kurita/Barnes Executive Committee hearing, Clarksville Online (Sep. 17, 2008), (“It was proven that a significant [sic] higher number of voters who historically vote in Republican primaries switched over to vote in the Democratic primary in this election.  The suggestion is that Rosalind Kurita used her ties to Ron Ramsey, who had pledged openly to “help her in any way [he] could” to turn out Republican voters to vote for her in an attempt to maintain Republican leadership of the Senate.”).

[8] See Kurita v. State Primary Bd. of Tennessee Democratic Party, 2008 WL 4601574 (M.D. Tenn. Oct. 14, 2008) aff’d, 472 F. App’x 398 (6th Cir. 2012).

[9] Ky. Rev. Stat. Ann. § 116.055 (“Before a person shall be qualified to vote in a primary election, he shall possess all the qualifications required of voters in a regular election. In addition, he shall be a registered member of the party in whose primary election he seeks to vote, and shall have been registered as a member of that party on December 31 immediately preceding the primary election, or, in the case of new registrations made after December 31 immediately preceding the primary election, he shall have registered and remained registered as a member of that party. No person shall be allowed to vote for any party candidates or slates of candidates other than that of the party of which he is a registered member. The qualifications shall be determined as of the date of the primary, without regard to the qualifications or disqualifications as they may exist at the succeeding regular election, except that minors seventeen (17) years of age who will become eighteen (18) years of age on or before the day of the regular election shall be entitled to vote in the primary if otherwise qualified. However, any registered voter, whether registered as a member of a party, political organization, political group, or as an independent, shall be qualified to vote in primary elections for candidates listed in all nonpartisan races.”)

[10] Iowa Code Ann. § 43.42 (“Any registered voter may change or declare a party affiliation at the polls on election day and shall be entitled to vote at any primary election. Each voter doing so shall indicate the voter’s change or declaration of party affiliation on the voter’s declaration of eligibility affidavit.”).

[11] The Tennessee Democratic Party’s bylaws do not define a “bona fide” member, and they do not establish any affiliations requirements for prospective voters at all.  However, the TNDP’s bylaws do  expressly allow party members to bring a challenge to a candidate’s status as a bona fide Democrat on the basis that the candidate has “fail[ed] to vote in at least three of the immediate prior five Democratic primaries[.]”  See Bylaws of the Tennessee Democratic Executive Committee 2010, Article III, Section 2(l) (“In the event that a county party, in compliance with its Bylaws, challenges a candidate for any office be it local, county, state or federal, against appearing on the ballot as a Democrat for failing to vote in at least three of the immediate prior five Democratic primaries, the challenge shall be referred to the County Party Development Committee which shall by a simple majority vote of the members make a recommendation to the State Party Chair.”)  Similarly, the Tennessee Republican Party’s bylaws do not establish specific bona fide membership requirements for voters, but do include flexible affiliation standards for establishing the bona fide status of prospective Republican candidates.  See Bylaws of the Tennessee Republican Party, Article IX, Section 1-2.

[12] Richard Rodda, The not-always-accurate memoirs of Earl Warren, California Journal 378 (Nov. 1977), available at

[13] Of course, Tennessee law requires voters to choose a single party with which to affiliate in each election.  See Tenn. Code Ann. § 2-19-107 (“A person commits a Class D felony who:  . . . (2) Votes in the primary elections of more than one (1) political party on the same day.”).

[14] See Green Party of Tennessee v. Hargett, 882 F. Supp. 2d 959, 1004 (M.D. Tenn. 2012) (“[A]t the time of voting, the voter can simply declare affiliation with the party to vote in [a Party’s] primary election.  Although a challenge to such a declaration is permitted under Tennessee law, given [Parties’] limited support and resources, . . . prospects for realistic challenges across the State at the time of the primary voting would be, at best, nominal.”); rev’d and remanded on mootness groundsGreen Party of Tennessee v. Hargett, 700 F.3d 816 (6th Cir. 2012).  See also  Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at (observing that “election officials rarely enforce [the affiliation requirement] at the polls as it is not something they are prepared to deal with.”).

[15] Tenn. Code Ann. §§ 2-7-123 – 2-7-125.

[16] Tenn. Code Ann. § 2-19-107 provides that: “A person commits a Class D felony who: (1) Intentionally and knowing that such person is not entitled to, registers or votes in any manner or attempts to register or vote in any manner where or when such person is not entitled to under this title, including voting more than once in the same election.”

Man vs. Drone: Lawsuit Could Clarify Rights of Drone Operators to Fly Over Private Land

By Daniel Horwitz:

Earlier this month, Nashville attorney and former U.S. Army helicopter pilot James Mackler filed a cutting-edge lawsuit in federal court that could be the first case to resolve the growing tension between homeowners’ private property rights and the rights of hobbyists to fly drones in U.S. airspace.  Mackler’s complaint – which is accessible here – asks the court to rule that drones constitute “aircraft” under federal law, and thus, that they can legally be flown above private property just like commercial airplanes.

The lawsuit pits Kentucky resident William Merideth – the self-described “Drone Slayer” – against his neighbor John Boggs, whose drone Mr. Merideth blasted out of the sky above his home with three rounds from his Benelli M1 shotgun.  In addition to seeking $1,500 in damages to replace his drone, Mr. Merideth has asked the court to declare as a matter of law that flying a drone in the “navigable airspace” controlled by the Federal Aviation Administration (FAA) is not illegal.  At present, according to the FAA, the federal government has exclusive jurisdiction over “the safety and management of U.S. airspace from the ground up,”[1] which generally includes the airspace over private property.

At common law, the rights of landowners extended ad coelum et ad infernos[2]—“all the way to heaven and all the way to hell.”  In the 1946 U.S. Supreme Court case United States v. Causby, however, the Court modified this common law rule for “air rights” by holding instead that landowners “own[] at least as much of the space above the ground as the[y] can occupy or use in connection with the land.”[3]  The Supreme Court’s decision in Causby represented a marked evolution in American understanding of airspace as “a public highway,”[4] and it has long been recognized as an essential ruling that permitted the commercial airline industry to develop and function.  With respect to airspace that a private landowner can use or is actually using, however, there is little doubt that such airspace still constitutes private property that cannot be crossed without the owner’s consent.

As Mackler’s lawsuit exemplifies, the growing popularity of drones throughout the United States is forcing society to grapple with our previously-settled understanding of private and public airspace once again.  Unlike commercial airplanes, drones operated by hobbyists present profound privacy and public safety concerns that federal law has yet to address.  Accordingly, states and municipalities have scrambled to enact a patchwork of laws aimed at balancing the interests of landowners against those of drone operators, which has resulted in significant confusion over where landowners’ rights end and drone owners’ rights begin.  If decided on its merits, the (un)neighborly dispute between Merideth and Boggs could represent the judiciary’s first attempt to resolve this balance under federal law.  As a result, until the FAA unveils precise rules governing private drone operation, the lawsuit could provide a measure of certainty to home owners and drone owners alike.

Questions about this article?  Email Daniel Horwitz at

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[1] Andrea Peterson and Matt McFarland, You may be powerless to stop a drone from hovering over your own yard, The Washington Post (January 13, 2016),

[2] United States v. Causby, 328 U.S. 256, 274, 66 S. Ct. 1062, 1072, 90 L. Ed. 1206 (1946) (citing 1 Coke, Institutes, 19th Ed. 1832, ch. 1, s 1(4a); 2 Blackstone, Commentaries, Lewis Ed. 1902, p. 18; 3 Kent, Commentaries, Gould Ed. 1896, p. 621.).

[3] Causby, 328 U.S. at 264.

[4] Id. at 261.

Metro Can Sue Its Own Zoning Board, Holds Tennessee Supreme Court

By Daniel Horwitz:

In March 2012, an advertising company applied to Metro’s Department of Codes and Building Safety for two digital display billboard permits.  The Department’s Zoning Administrator denied the company’s two permit requests, so the company appealed the denial to Metro’s Board of Zoning Appeals (“the Board”).  On a 4-2 vote, the Board overturned the Zoning Administrator’s decision, and it granted the company the two digital display permits that it sought.

Unhappy with the Board’s decision, Metro Legal filed a lawsuit against the Board and various other parties under the appeal provision set forth in Tenn. Code Ann. § 27-9-101, which governs zoning appeals.  In response, the parties that Metro Legal sued filed a motion to dismiss the lawsuit on the basis that Metro “does not have standing to bring suit [against its] own Board.”  The trial court granted the parties’ motion to dismiss, finding that Metro did not have a legal right to appeal the Board’s decision under Tenn. Code Ann. § 27-9-101.  Further, the trial court held that Metro had not suffered an injury, which is a necessary precondition to filing any kind of lawsuit.  As a result, Metro Legal appealed the trial court’s decision to dismiss its lawsuit to the Tennessee Court of Appeals, and the case ultimately reached the Tennessee Supreme Court.

1.  Metro’s Right to Appeal Under Tenn. Code Ann. § 27-9-101

The statute governing zoning appeals provides broadly that: “Anyone who may be aggrieved by any final order or judgment of any board or commission . . . may have the order or judgment reviewed by the courts, where not otherwise specifically provided, in the manner provided by this chapter.”[1]  Thus, the first question presented was whether the term “anyone” in Tenn. Code Ann. § 27-9-101 included Metro.

Reviewing the applicable statutory text, the Tennessee Supreme Court easily concluded that for purposes of Tenn. Code Ann. § 27-9-101, “anyone” did indeed include Metro.  Writing for a unanimous court, Justice Bivins explained that:  “Section 101 refers to ‘anyone,’ and we conclude that Metro, a public corporation, falls within the scope of the term ‘anyone.’”  Further, he noted, “[e]ven were we to construe ‘anyone’ as referring to ‘persons,’ the Tennessee Code defines ‘person’ as including corporations[, and] Metro is a public corporation[.]”  Accordingly, he reasoned, Metro enjoys the right to pursue zoning appeals under Tenn. Code Ann. § 27-9-101 just like anyone else.

Seeking a contrary holding, Metro’s opposing litigants highlighted the fact that the legislature had considered – but failed to enact – a separate version of the zoning appeal statute that would have expressly afforded municipalities the right to appeal.  By opting not to enact that version, they argued, the legislature must have intended to deny municipalities the right to appeal zoning decisions.  Rejecting this line of reasoning, however, the Court explained that it was “[un]aware of any [] authority limiting the definition of the term ‘anyone’ . . .  to exclude Metro as a potential petitioner.”[2]

2.  Metro’s Injury

Having established that Tenn. Code Ann. § 27-9-101 affords Metro the right to seek judicial review of zoning decisions under circumstances when it has been “aggrieved,” the next question to be decided was whether it is even possible for Metro “to be aggrieved by an erroneous decision made by one of its own boards.”  Holding in the affirmative, the Court explained that “when applied to local governments, aggrievement encompasses interference with a local government’s ability to fulfill its statutory obligations, or substantial, direct, and adverse effects on the local government in its corporate capacity.”  Since Metro alleged in its complaint that the Zoning Board’s decision would interfere with its duty to enforce municipal zoning ordinances, the Court concluded that Metro had alleged an injury sufficient to justify judicial review.  Specifically, the court explained:

“Metro has established that it is ‘aggrieved’ by its allegation that, if the [Board’s] ruling is allowed to stand, it will be unable to enforce certain of its ordinances.  That allegation is within Section 101‟s zone of interests. Accordingly, Metro has established its standing to bring this action under Section 101.”

3.  Policy Considerations

In holding that Metro has the legal right to appeal decisions made by the Board of Zoning Appeals, the Court also relied heavily on a single crucial policy consideration:  the fact that a contrary result would mean that only wealthy individuals would be able to appeal adverse zoning decisions.  Specifically, the Court noted, if Metro did not have the right to appeal Board decisions on behalf of taxpayers, then only individuals or entities with sufficient resources to file a lawsuit would be able to challenge the Board in court.  Rejecting this result as unacceptable, the Court explained that it was “persuaded particularly” by the concern that:

“The enforcement of a governmental body’s zoning code should not depend upon the economic status of individuals.  Indeed, such a scenario stands to defeat the very purpose of a zoning code.”

The Court’s sensitivity to the fact that legal rights should not be a function of poverty is welcome and should be applauded by all.  One can only hope, however, that its concern for indigent citizens will extend beyond those affected by zoning decisions.  It is well documented, for example, that within the criminal justice system, outcomes that should depend exclusively on guilt or innocence are instead highly dependent on a defendant’s economic status—leading inexorably to the conclusion that “[t]here is a crisis in legal representation for the poor throughout the country.”[3]  Similarly, on behalf of several domestic and sexual violence prevention advocates who are seeking to protect rape victims from having their most sensitive personal information disclosed, the author has beseeched the Justices to recognize that “the vast majority of victims of sexual and domestic violence lack the means to retain private counsel to protect their rights in any—much less every—phase of Tennessee’s justice system.”  See Tennessean v. Metro. Gov’t of Nashville, No. M-2014-00524-SC-R11-CV, Brief of Amici Curiae Domestic and Sexual Violence Prevention Advocates 32, available at  Accordingly, these advocates have implored the Court to hold that rape survivors should benefit from a presumption in favor of non-disclosure with respect to their private, personal information, rather than being forced to hire an attorney to protect their rights in the event that someone seeks access to their private records.

Whether the Court will take citizens’ poverty and economic status into consideration outside the context of zoning disputes, however, only time will tell.

Read the Tennessee Supreme Court’s unanimous opinion in Metro. Gov’t of Nashville-Davidson Cty. v. Bd. of Zoning Appeals of Nashville here.

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[1] Tenn. Code Ann. § 27-9-101.

[2] In the author’s view, a much stronger argument would have been that Tenn. Code Ann. § 13-7-206 – which governs the first step of the zoning appeals process – specifically affords “municipalit[ies]” the right to appeal, while Tenn. Code Ann. § 27-9-101 – which governs the second step of the zoning appeals process – does not.  Pursuant to the doctrine of in pari materia, one could argue persuasively that this conspicuous difference indicates that the legislature intended for the two provisions to function differently.  See, e.g., Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 560 (Tenn. 2013) (holding that where to statutory provisions are “enacted together,” “the doctrine of in pari materia requires us to interpret the[] two sections together. . . . Although legislative silence is not generally indicative of an intent not to act, legislative silence in [] context offers a strong suggestion that the legislature intend[s provisions to] function differently.”) (internal citations omitted).

[3] Stephen B. Bright, The Right to Counsel in Death Penalty and Other Criminal Cases: Neglect of the Most Fundamental Right and What We Should Do About It, 11 J.L. SOC’Y 1, 3 (2010), available at