Monthly Archives: July 2016

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

By Daniel Horwitz:

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

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

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

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

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

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

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

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

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

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

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

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

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

Questions about this article?  Email Daniel Horwitz at

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

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

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

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

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

[6] Tenn. Code Ann. § 40-26-105(b).

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

[8] Id. at 501-04.

[9] Id.

[10] Id. at 503.

[11] Id. at 504.

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

[13] Id. at *3.

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

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

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

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

First Amendment Rights of Public Employees

By Daniel Horwitz:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[12] Tenn. Code Ann. § 8-50-603(a).

[13] Tenn. Code Ann. § 8-50-603(b).