Third, the Tennessee General Assembly passed one of Governor Bill Lee’s central legislative priorities—a substantial reduction in the current expungement fee that the state assesses people for the privilege of expunging convictions and diverted offenses on their criminal records. Tennessee’s expungement law, which enables people to expunge up to two qualifying convictions, provides an extraordinarily important mechanism for people to move on from an interaction with the criminal justice system and eliminate their criminal record history such that—as a matter of law—it “never occurred.” Although the reform does not wholly eliminate all applicable expungement fees, it reduces the total fee that people will have to pay to expunge a conviction or diversion from $280 to $100 going forward.
These important reforms each move individual rights in the right direction. They reduce private litigants’ ability to abuse the legal process, they curtail the government’s power to infringe upon people’s constitutional rights, and they help ensure that people will not suffer a life sentence for minor criminal convictions solely because they lack the ability to pay a few hundred dollars to expunge their qualifying convictions. Hopefully, progress like this is only a beginning.
In a unanimous, twenty-page opinion released earlier this afternoon, the Tennessee Supreme Court ruled on a pair of critical issues affecting newsgathering in Tennessee. The Court’s ruling strengthens protections for the “fair report” privilege—a legal defense that protects journalists from liability for allegedly defamatory news articles—while at least arguably undercutting Tennessee’s “Shield Law,” which enables journalists to protect their sources. The Court’s opinion, authored by Justice Cornelia Clark, is accessible here.
The first and central holding of the Court’s opinion is that no claim of “malice”—either an express motive to harm another or simply reckless reporting—can overcome the fair report privilege afforded to news media. “We hold that neither express malice nor actual malice can defeat the fair report privilege,” the Court’s opinion reads. “The privilege can only be defeated by showing that a report about an official action or proceeding was unfair or inaccurate.” Because the overwhelming majority of defamation lawsuits are baseless, the Court’s opinion significantly strengthens protections for journalists that could otherwise be eviscerated through creative or fanciful pleading.
On the other hand, however, the Court held that
a journalist’s invocation of the fair report privilege necessarily “triggers
the exception to the shield law in Tennessee Code Annotated section 24-1-208(b),”
which generally protects journalists against having to disclose the sources of
their information. The Court’s opinion
explains:
“[A]ssertion of the fair report privilege will
necessarily entail disclosure of the media defendant’s source of information.
This is because a media defendant asserting the privilege must show that the
allegedly defamatory information is a fair and accurate report of official
actions or proceedings, and therefore, the media defendant must disclose the
source of the allegedly defamatory information.”
The Court made clear, however, that “the exception to the shield law allows a court to compel disclosure of the source of a media defendant’s information—how media defendants know something; it does not authorize a court to compel media defendants to disclose the information the source provided.”
Read the Tennessee Supreme Court’s unanimous opinion in Glenn R. Funk v. Scripps Media, Inc.here.
Pound’s essential
premise was that, by the turn of the twentieth century, the American justice
system had devolved into little more than a game that focused not on adjudicating
controversies on their merits and meting out judgments that substantive justice
compelled, but looked instead to whether litigants had successfully navigated procedural
rules that had little bearing, if any, upon the actual case at bar. Pound decried:
“The inquiry is not: What do substantive law and justice require? Instead, the inquiry is: Have the rules of the game been carried out strictly? If any material infraction is discovered, just as the football rules put back the offending team five or ten or fifteen yards, as the case may be, our sporting theory of justice awards new trials, or reverses judgments, or sustains demurrers in the interest of regular play.”
None of this, of course, was to suggest that procedural rules are not important. Indeed, to the contrary, all agree that procedural rules—such as fair notice and a meaningful opportunity to be heard—are essential to protect substantive rights.
Frequently, however,
procedural rules are distantly removed from substantive protections. Under such circumstances—particularly when a
rule is unclear or an opposing litigant has not been harmed—the notion that
someone should lose their day in court due to technical non-compliance is corrosive
to the justice system’s fundamental purpose: To adjudicate the merits of controversies
and dispense justice based on litigants’ substantive rights.
Frustratingly, despite
many essential improvements over the past century that aimed to reform the
justice game, many judges’ disinterest in providing substantive justice
doggedly persists. Kennerly’s article
provides some recent examples in federal court, but Tennessee is a similar
offender. Tennessee’s intermediate
appellate courts, in particular, have long jumped to dismiss substantive claims
based on procedural technicalities that have little or no relation to litigants’
substantive rights—something that the Tennessee Supreme Court has repeatedly
intervened to chastise over, and over, and over again.
Consider, for instance, the Court of Appeals’ 2014 opinion in Arden v. Kozawa—a wrongful death case that the Court of Appeals dismissed because the plaintiff had delivered notice to an opposing party using FedEx instead of USPS (the Tennessee Supreme Court sensibly reversed). Or this case from a few weeks ago, where the Court of Appeals declined to consider a litigant’s argument on appeal because—although the issue was raised in the litigant’s briefing—“an issue may be deemed waived when it is argued in the brief but is not designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).” Alternatively, consider the host of hyper-technical dismissals in Health Care Liability Act cases for which this author has blasted the Court of Appeals for “undermin[ing] the fundamental purpose of the civil justice system as an institution.” None of these opinions is even remotely concerned with whether the substance of a litigant’s claim has merit. Instead, the judgments turn on whether the litigants involved adhered to substantively vacuous “rules of the game.”
The Tennessee Court of Criminal Appeals, for its part, is just as guilty. Almost daily, defendants are treated to dismissive rulings based not on the merits of their claims, but based on (often unevenly applied) procedural flaws—waiver and abandonment, failure to preserve issues or exhaust remedies, failure to assert their claims quickly enough, and the like.
Perhaps no case better illustrates the Court of Criminal Appeals’ commitment to the justice game than this August 2018 case. There, a defendant sought to terminate his supposedly outstanding, decades-old court costs. He specifically invoked Tennessee’s ten-year statute of limitations for collecting on judgments as a defense to a District Attorney’s sudden and plainly retaliatory efforts to collect costs as many as twenty-six years after the fact. Unfortunately, the trial court dismissed the defendant’s claim on procedural grounds that both parties essentially agreed were wrong—finding that although the defendant had been served with multiple writs to execute on the judgments at issue, “no pending civil action existed” to collect on them. Thereafter, the defendant appealed.
In a series of previous cases—every single one of them involving a pro se litigant—the Court of Criminal Appeals had deprived similar litigants of their day in court and held that a denial of a motion to terminate court costs cannot be appealed under Tenn. R. App. P. 3(b), which governs criminal appeals.[1] Accordingly, the defendant made clear over and over again in his briefing that he was filing his appeal under Tenn. R. App. P. 3(a)—which governs civil appeals and guarantees litigants an appeal “as of right”—instead. The defendant’s argument also made particularly good sense in the context of his case, given that Tennessee law provides that taxes, costs, and fines that arise out of criminal cases are collectable “in the same manner as a judgment in a civil action.”[2] As an alternative to considering the merits of his appeal under Tenn. R. App. P. 3(a), though, pursuant to longstanding precedent that provides that the relief sought by a pleading—rather than the title assigned to it—controls its treatment, the defendant asked the Court of Criminal Appeals to convert his appeal into a catch-all writ of certiorari instead if Tenn. R. App. P. 3(a) did not afford him a right to appeal after all.[3]
In a cursory, four-page opinion, the Court of Criminal Appeals dismissed the defendant’s appeal on the basis that Tenn. R. App. P. 3(b)—Tennessee’s criminal appeal provision—did not allow it. (Tenn. R. App. P. 3(a) was never mentioned.) The Court also declined the defendant’s request to adjudicate the merits of his appeal as a writ of certiorari—even though the same court routinely extends the government that benefit under similar circumstances.
Given that—as noted above—the defendant had repeatedly indicated that he was appealing under Tenn. R. App. P. 3(a), not Tenn. R. App. P. 3(b), one reading of the Court of Criminal Appeals’ opinion might be that the Court misread the defendant’s claims. Alternatively, a less charitable conclusion might be that—in its haste to dismiss yet another defendant’s appeal on purely technical procedural grounds—the Court of Criminal Appeals didn’t read them at all.
Laudably, the
Tennessee Supreme Court has frequently served as a bulwark against hyper-technical
procedural dismissals of this sort. Consequently,
time and again, it has intervened to reverse and remind Tennessee’s intermediate
appellate courts that courts must not “exalt[] form over substance to deprive a
party of his day in court and frustrat[e] the resolution of the litigation on
the merits.”[4]
Encouragingly, Kendall Southall’s appeal to the Tennessee Supreme Court, in which he asks the Court to order the Court of Criminal Appeals to adjudicate the merits of his claims, still remains under review. For the sake of substantive justice—rather than just the sport of “the justice game”—everyone should hope that the Tennessee Supreme Court intervenes and affirms, yet again, the judiciary’s obligation not to “exalt form over substance”—something that our Supreme Court has repeatedly held that it “refuses to do.”[5]
[1]See State v. Johnson, 56 S.W. 3d 44, 44 (Tenn. Crim. App. 2001)
(“Christopher Joseph Johnson, pro se.”); State v. Hegel, No.
E2015-00953-CCA-R3-CO, 2016 WL 3078657 (Tenn. Crim. App. May 23, 2016) (“James
Frederick Hegel, pro se”); Boruff v. State, No. E2010-00772-CCA-R3CO,
2011 WL 846063 (Tenn. Crim. App. Mar. 10, 2011) (“Douglas Boruff, pro
se”); Hood v. State, No. M2009-00661-CCA-R3-PC, 2010 WL 3244877
(Tenn. Crim. App. Aug. 18, 2010) (“Jonathon C. Hood, Clifton, Tennessee,
pro se”); Lewis v. State, No. E2014-01376-CCA-WR-CO, 2015 WL
1611296 (Tenn. Crim. App. Apr. 7, 2015) (“Stephen W. Lewis, Wartburg,
Tennessee, Pro Se”).
[3]See, e.g., Norton v. Everhart, 895
S.W.2d 317, 319 (Tenn. 1995) (“the trial court should have treated the petition
as one for a writ of certiorari. It is
well settled that a trial court is not bound by the title of the pleading, but
has the discretion to treat the pleading according to the relief sought.”); Estate
of Doyle v. Hunt, 60 S.W.3d 838, 842 (Tenn. Ct. App. 2001) (“A trial court is
not bound by the title of a pleading, but rather the court is to give effect to
the pleading’s substance and treat it according to the relief sought
therein.”); Hill v. Hill, No.
M2006-01792-COA-R3CV, 2008 WL 110101, at *3 (Tenn. Ct. App. Jan. 9, 2008)
(same).
[4]Jones v. Prof’l Motorcycle Escort Serv.,
L.L.C., 193 S.W.3d 564, 573 (Tenn. 2006).
See also In re Akins, 87
S.W.3d 488, 495 (Tenn. 2002) (“we . . . avoid exalting form over substance.”); Childress v. Bennett, 816 S.W.2d 314,
316 (Tenn. 1991) (“it is the general rule that courts are reluctant to give
effect to rules of procedure which seem harsh and unfair, and which prevent a
litigant from having a claim adjudicated upon its merits”); City of Chattanooga v. Davis, 54 S.W.3d
248, 260 (Tenn. 2001) (overruling a prior decision that “exalted technical form
over constitutional substance in a manner rarely seen elsewhere.”); State v. Henning, 975 S.W.2d 290, 298
(Tenn. 1998) (“To hold otherwise would exalt form over substance.”); Henley v. Cobb, 916 S.W.2d 915, 916
(Tenn. 1996) (“it is well settled that Tennessee law strongly favors the
resolution of all disputes on their merits”); Norton, 895 S.W.2d at 322 (Tenn. 1995) (emphasizing “the clear
policy of this state favoring the adjudication of disputes on their merits”).
In an opinion released on Thursday, the Tennessee Supreme Court answered a certified question of law from the United States Court of Appeals for the Sixth Circuit in the high-profile case of Cyntoia Brown, the juvenile sex trafficking victim who received a life sentence after being convicted of murdering a John. The Court’s opinion concluded—unanimously and correctly by any reasonable determination—that Ms. Brown will become eligible for parole after serving 51 years in prison.
It should be noted that the Tennessee Supreme Court’s ruling that Ms. Brown is parole eligible after 51 years was the more lenient outcome available in her case—albeit not the one that Ms. Brown’s attorneys had sought for reasons unique to her circumstances. Nonetheless, a flood of national attention to Ms. Brown’s case and a significant misunderstanding of its posture led multiple commentators—Ana Navarro, for instance—to decry the Court’s ruling as “a travesty of justice,” which it most certainly was not:
Cynthia Brown was a 16 girl when she killed a 43 year-old man forcing her to have sex. The Tennessee Supreme Court ordered she must serve 51 years. THIS IS A TRAVESTY OF JUSTICE. Folks, you need to flood Gov. @BillHaslam’s twitter feed and demand he do something about this. https://t.co/EUKdwQnS6J— Ana Navarro (@ananavarro) December 8, 2018
To put the fairness of her punishment in its proper context: Cyntoia Brown’s sentence is grossly unfair, and Tennessee Governor Bill Haslam should grant her clemency immediately. (People like Calvin Bryant and Randy Mills deserve clemency, too.) Indeed, Governor Haslam should have granted her clemency months ago when she first applied. Ms. Brown—a bright, capable young woman who was very much a victim herself and whose rehabilitation is no longer even questioned—has been punished enough, and her sentence should be commuted immediately to bring it into compliance with modern standards of decency.
As for her pending legal challenge, though: Ms. Brown’s case is far from unique. In fact, from a purely legal perspective, her sentence is considerably less severe than fourteen others in Tennessee. There is a material difference between a juvenile life without the possibility of parole sentence—which fourteen Tennessee defendants are serving right now—and a juvenile life with the possibility of parole sentence, which is what Ms. Brown received. (One of those defendants—who is serving three consecutive life without the possibility of parole sentences for felony-murder charges committed when he was 14—is the author’s client.) Specifically: A life with the possibility of parole sentence includes the possibility of parole, while a life without the possibility of parole sentence does not. The issue in Ms. Brown’s case—which the Tennessee Supreme Court has now resolved—was whether her sentence included the possibility of parole.
Ms. Brown’s trial court ruled that she would be eligible for parole after 51 years. There also has never been any doubt that this was the actual sentence that Ms. Brown received. In its sentencing order, her trial court specifically stated that Ms. Brown “must serve at least fifty-one (51) calendar years before she is eligible for release.” The Tennessee Department of Correction similarly notes that Ms. Brown is parole eligible:
Nonetheless, Ms. Brown’s federal habeas claim sought to convince the U.S. Court of Appeals for the Sixth Circuit to hold that she was not eligible for parole at all. The claim—to put it mildly—was never likely to succeed. Nonetheless, in June, the Sixth Circuit gave the Tennessee Supreme Court the opportunity to clarify the perceived ambiguity in Tennessee’s sentencing scheme and determine whether or not Ms. Brown was parole eligible.
In its opinion on Thursday, the Tennessee Supreme Court concluded that Ms. Brown was indeed parole eligible. According to the Court, this result was dictated by Tennessee’s sentencing statutes, which the Tennessee Supreme Court determined were not in conflict. Even if Tennessee’s sentencing statutes were ambiguous, however, the “rule of lenity” would have required the same outcome. Under that rule, whenever there is an ambiguity in a criminal provision that can reasonably be interpreted in two ways—one that is more favorable to a defendant and one that is less favorable—precedent and fairness compel that the more lenient interpretation be applied.
Contrary to typical circumstances, Ms. Brown argued that she should have been given a sentence that was even harsher than the one she actually received. The reason why she lodged that claim? In a 2012 case—Miller v. Alabama—the U.S. Supreme Court ruled that juvenile life without parole sentences are presumptively unconstitutional. That decision was also held to be retroactive in 2016 following the U.S. Supreme Court’s decision in Montgomery v. Louisiana. As a result, if Ms. Brown had received a life without the possibility of parole sentence, then she would (at least theoretically) be entitled to have her sentence remedied. In other words: Ms. Brown wanted the Sixth Circuit to hold that her sentence was even harsher than it was so that it would be presumptively unlawful. To date, however, it is worth noting that none of Tennessee’s fourteen actual juvenile life without parole defendants have had their presumptively unconstitutional sentences corrected in any regard.
Because the Tennessee Supreme Court has now determined—correctly and by necessity—that Ms. Brown is and always has been parole eligible, her entitlement to resentencing under Miller and Montgomery is not straightforward. She can, and will, continue to argue that she received a “de facto” life without parole sentence because few people will survive 51 years in prison. Nonetheless, anyone who decries the Tennessee Supreme Court’s clarification is, in a literal sense, demanding an even harsher outcome in her case: That Ms. Brown is never eligible for parole at all. The notion that the Tennessee Supreme Court’s failure to embrace that outcome is a “travesty of justice” is farcical, and outrage about the Court’s decision should be tempered accordingly.
Earlier this month, the Tennessee Higher Education Commission voted 8-5 to deny Middle Tennessee State University’s proposal to add a law school to its higher education offerings. Given that Tennessee’s only existing public law schools are located in Memphis and Knoxville, MTSU’s proposal would have added the first and only public law school option to the Middle Tennessee area. Its addition would also have introduced substantial competition into the low-cost segment of Middle Tennessee’s strictly private law school market, which is currently failing to produce.
Blasting criticism of the proposal, MTSU President Sidney A. McPhee called on the Commission to reject the “cartel-like view” that its role was to inhibit competition. Opponents of the plan also appeared to make his point for him. For instance, in urging the Commission to vote down a law school at MTSU, WPLN reports that “[t]he biggest critics of the transfer came from lawyers and law schools in Memphis and Knoxville, where the state’s only other public law schools are located.” Other critics decried the fact that another school in the city: (1) “would take away from other schools’ ability to compete,” (2) “would saturate an already dense legal labor market,” (3) “would make it even more difficult for law school graduates to find work,” and (4) would “insert more law school graduates into an already crowded job market.”
The extent to which “the biggest” critics’ interests in stifling competition factored into the Higher Education Commission’s decision to vote down MTSU’s proposal is not clear. What is clear, however, is that if concerns about enhanced competition in the legal industry or the private law school market—something that uniformly benefits consumers by affording them more choices and lower prices—played any role at all, the Higher Education Commission’s decision was not lawful. Specifically, although Tennessee regulators appear to be unaware of this fact, a vast body of law instructs that raw economic protectionism is an illegitimate governmental interest, and that under both federal and state law, governmental action aimed solely at inhibiting competition is illegal.
In 2002, the United States Court of Appeals for the Sixth Circuit held for the first time that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose” and violates the 14th Amendment to the U.S. Constitution.[1] As far as state law is concerned, the Tennessee Supreme Court has long held that protectionism is forbidden by the Tennessee Constitution as well. In the 1956 case Consumers Gasoline Stations v. City of Pulaski, for instance, the Tennessee Supreme Court held that “[a]lthough [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”[2] A wealth of additional state precedent spanning more than a century also supports this premise.[3]
With this context in mind, if attempts to stifle competition in the private Middle Tennessee law school market or in the legal industry more broadly played any role in the Commission’s 8-5 decision to reject MTSU’s proposal to add a law school, then MTSU is entitled to a new hearing. Just as unconstitutional hostility to a litigant’s religious beliefs cannot play a role in an administrative proceeding, nor can unconstitutional hostility to competition factor into the Higher Education Commission’s decisions. Given the prominent and visible role that raw economic protectionism of private industry appears to have played in the Commission’s decision to vote down a law school at MTSU, however, the school should seriously consider its right to appeal.
[1]Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).
[2]Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956).
[3]See, e.g., Harbison v. Knoxville Iron Co., 53 S.W. 955, 957 (Tenn. 1899) (“The ‘liberty’ contemplated in [the Tennessee Constitution] means not only the right of freedom from servitude, imprisonment, or physical restraint, but also the right to use one’s faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof.”); Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 806 (Tenn. 2015) (noting Tennessee’s established public policy favoring citizens’ “access to employment and the ability to earn a livelihood.”).
The Davidson County Circuit Court has issued its final order regarding the Fraternal Order of Police’s attempt to prevent voters from weighing in on a community oversight board that would review citizen complaints regarding Metro police officers. In a final ruling, the Court determined that the FOP had standing to challenge the requisite number of signatures necessary to trigger a referendum election. It additionally determined, however, that the FOP’s challenge was without basis.
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.
In 2007, Drayton Smith—an accomplished wills and estate planning attorney—pleaded guilty to charges of receipt and possession of child pornography. He was sentenced to five years in federal prison, another ten years of supervised probation, and required to register as a sex offender for life. In a separate proceeding, he also consented to his immediate disbarment from the practice of law.
Yesterday, the Tennessee Supreme Court affirmed a panel decision forbidding Mr. Smith from having his law license reinstated. Under the deferential standard of review that applies to appeals of agency determinations, the decision was plainly correct. Nonetheless, the case gives rise to much broader concerns about Due Process and character and fitness requirements themselves.
In 2014, after his release from prison but during his probation, Mr. Smith petitioned a panel of Tennessee’s Board of Professional Responsibility (BPR)—the judicial agency that handles lawyer discipline—for reinstatement of his law license. Mr. Smith’s physicians, the deputy director of the Tennessee Lawyers Assistance Program, several character witnesses, and a separate medical expert testified at Mr. Smith’s hearing, as did Mr. Smith himself.
The testimony presented at Mr. Smith’s hearing covered several topics. Mr. Smith’s doctors testified about his treatment and opined that he was unlikely to reoffend. Mr. Smith’s character witnesses—who included multiple current attorneys, former clients, and two retired judges—testified that he was a capable, intelligent attorney, and that he enjoyed a reputation as a skilled lawyer who represented his clients competently and with honesty and integrity. As to the crime that he had committed, Mr. Smith testified that he had been convicted of possessing approximately 40 photographs of prepubescent girls, which he had downloaded while “suffering from chronic clinical depression.” (He has since been diagnosed with pedophilia as well.) Mr. Smith further testified that he thought of his crime as victimless at the time, but that “[s]ince his arrest, he had come to understand through counseling the harm that his actions caused to the persons in the images.” Finally, Mr. Smith detailed the personal and professional consequences that he had experienced as a result of his crime, which can fairly be summarized as having lost everything.
Perhaps unsurprisingly, the Board of Professional Responsibility vigorously opposed Mr. Smith’s reinstatement. In so doing, it emphasized a component of one of Mr. Smith’s medical reports, which indicated that during his treatment, he had scanned comic strips from a newspaper and then colored their clothing to make them appear nude—behavior that one doctor noted was “an indirect measure of interest in children.” According to the BPR’s prosecutor, that behavior, which had stopped, was not disclosed to Mr. Smith’s probation officer, and it could be construed as possession of pornography (no) or use of a computer with internet access in violation of his probation (the Court noted that there was no evidence introduced on the matter). The BPR’s prosecutor also cross-examined a church official who had come to support Mr. Smith and asked her whether Mr. Smith had sought “forgiveness from you or the church for his actions.”
Upon review, Mr. Smith’s hearing panel ruled that he had “failed to prove by clear and convincing evidence that he possesses the moral qualifications required to practice law in Tennessee.” The panel’s unusually long decision was multi-pronged. First, it found that Mr. Smith’s character witnesses were insufficiently knowledgeable about the precise details of his crime, treatment, and post-release conduct to have a credible opinion as to whether he should be reinstated. Second, it expressed concern that Mr. Smith had not disclosed the comic strip incident to his probation officer, which it took as an indicator of dishonesty and potential probation violations. Third, and most importantly, the hearing panel noted that:
“[T]here is a negative public stigma attached to individuals convicted of paraphilia and pedophilia offenses. Several of [Mr. Smith’s] friends . . . testified [that he] has lost friends, had his reputation damaged and will suffer public scorn from his criminal history and conviction. Moreover, both Dr. Battle and Dr. Abel testified as to the negative social stigma attached to sex offenders and pedophilia/paraphilia patients. Dr. Abel testified the general public believes paraphilia patients cannot be successfully treated. Even [Mr. Smith] acknowledged during his testimony, people are going to hate him just because they know he is a sex offender and that is not something that will go away.”
In other words: the panel “expressed concern with [Mr. Smith]’s status as a sex offender and, if [he] were reinstated, the impact of that status on the integrity of the bar.”
The hearing panel’s ruling was ultimately affirmed by the Tennessee Supreme Court, which reviews agency determinations under a highly deferential standard of review that ensures that they are virtually never disturbed except in the most outrageous cases. Under that standard of review, the Court defers to all credibility determinations made by an agency, and it also gives the agency complete authority to determine the relative weight of the evidence presented to it. After doing so, as long as there is more than a scintilla of “substantial and material” evidence in the record to support the agency’s decision, the decision must be affirmed.
Given this deferential standard of review, there is little doubt that the Tennessee Supreme Court correctly affirmed the hearing panel’s decision to deny Mr. Smith reinstatement. Of special note, though, it did so only after an intermediate court held that the panel’s ruling had been “based solely on the nature of the crime committed and . . . [was] arbitrary and capricious and not supported by substantial and material evidence.” The case also saw the BPR’s attorney chastised by the Tennessee Supreme Court for (badly) missing a filing deadline and then “attempt[ing] to use its own missed deadline as both weapon and shield.” But the greatest import of the case is not its ultimate outcome for Mr. Smith. Instead, it was the BPR’s troubling conduct along the way.
There is no doubt whatsoever that child pornography is widely viewed and treated as one of society’s most heinous crimes. Those who believe that people convicted of possessing child pornography cannot suffer too much have a great deal of company. Regardless, however, the BPR’s conduct in Mr. Smith’s case should concern everyone, because there is little reason to believe that it is or will be isolated.
Whether they are entitled to do so or not, government agency prosecutors should not be compelling clergy to divulge whether a person—any person—has asked forgiveness from their faith community or from God. Whether they are entitled to do so or not, government agency prosecutors should not be positing that a person—any person—may have committed an uncharged, unproven criminal violation. And whether they are entitled to do so or not, the Board of Professional Responsibility should not premise its determination about whether a person has the “moral qualifications required to practice law” upon vague and undefined notions of “public stigma”—a dangerously overbroad criterion that has frightening potential to be extended to anything that a handful of elite government agency appointees collectively deem “unpopular.”
It is also fair to worry that if the same searching inquiry and zeal were deployed against every other lawyer in Tennessee, there would not be anyone left to practice law in this state. Indeed, if the BPR were interested in applying disciplinary rules evenhandedly, then its own agency prosecutor would find himself sanctioned for missing a filing deadline in Mr. Smith’s case—a prosecution that it has very recently brought against others. That will not happen, of course, and it shouldn’t. Even so, the knowledge that disciplinary rules are broad enough to enable the BPR to bring its hammer down selectively on anyone it pleases should concern everyone.
In theory, bar “character and fitness” requirements are intended to protect the public from unqualified and unethical lawyers. As explained in a previous post, however, in the not-too-distant-past, such requirements were “wielded to keep disfavored minorities—like Jews and women—from becoming lawyers instead.” With this disturbing historical context in mind, the same people who will be understandably pleased with the outcome of Mr. Smith’s case should also be concerned that the next person who is denied the opportunity to practice law due to the “public stigma” surrounding his or her past may be significantly less concerning.
Mr. Smith’s case also forces the rest of society to grapple with a number of difficult questions that the BPR has left unanswered. When people who are convicted of possessing child pornography get out of prison, do we want them to be unemployed forever? If not, what jobs should they be permitted to hold? Whatever those jobs are, why is being a lawyer different? If Mr. Smith’s honesty and integrity were as indisputable as all of his character witnesses claimed, would that change your view?
Separately, it is worth asking who—specifically—benefits from denying Mr. Smith the opportunity to practice his lifelong profession. If Mr. Smith were able to return to his job, for instance, it stands to reason that he could begin paying restitution to the victims whose photos he downloaded. By getting his law license back, Mr. Smith would also become a tax-paying, productive member of society again, rather than an unemployed one. Further, by allowing Mr. Smith to practice law, people in need of legal assistance regarding wills and estate matters would have another capable option available to them in the marketplace for those legal services—meaning that the public would enjoy the greater choice, improved service, and lower prices that always result from enhanced competition.
Perhaps more than any other, the legal profession is obsessed with its reputation among the public. Despite this obsession, however, it consistently enjoys one of the worst reputations of any major profession—just barely outpacing lobbyists and members of Congress, who are disproportionately made up of lawyers as well.
Although the bar seems unaware of it, the public is unimpressed with lawyers for any number of legitimate reasons, chief among them being that the legal system is profoundly abusive—particularly to those who have to navigate it alone; that the vast majority of people cannot afford legal services; and that justice is only really available to those who can afford it. Despite the serious structural problems with the profession, however, bar regulators have done little and less to address any of them. Instead, they have focused their efforts to “protect the integrity of the profession” on causes like enforcing speech codes that prohibit lawyers from criticizing judges; advocated for new speech codes that would enable bar regulators to punish all manner of disfavored speech; demanded unquestioned and borderline dogmatic respect for participants in the legal system; and agitated for robust “civility” enforcement.
Taken together, one could be forgiven for concluding that the legal profession’s primary response to widespread criticism has not been to address its root causes, but to make such criticism illegal. Whether the bar regulators who are in a position to address the structural problems in the profession are interested in doing so, however, remains an open question.
Read the Tennessee Supreme Court’s unanimous opinion in Drayton Beecher Smith, II v. Board of Professional Responsibility of the Tennessee Supreme Court, authored by Chief Justice Jeffrey Bivins,here.
Tennessee Supreme Court holds that the Health Care Liability Act’s statute of limitations is not extended if a plaintiff sends pre-suit notice to the wrong defendant.
Tiffinne Runions, a Madison County mother who lost her child five days after childbirth, has also lost her day in court based on a misaddressed pre-suit notice. As a result, Ms. Runions’ lawsuit did not fail based on a judge or jury rejecting the merits of her claim that “the defendants’ negligent conduct . . . caused the baby’s death.” Instead, her lawsuit never even made it past the courthouse doors due to her attorney’s mistake about who owned the hospital that delivered her baby.
Over the past decade, one medical malpractice claim after another in Tennessee has been derailed following plaintiffs’ unsuccessful attempts to comply with certain pre-suit notice requirements mandated by Tennessee’s Health Care Liability Act (HCLA). As a result, the Tennessee Supreme Court’s unanimous decision to dismiss Ms. Runions’ lawsuit even before its merits could be considered represents only the latest casualty in a long line of medical malpractice cases—known as “healthcare liability” claims in Tennessee—that have been doomed from their inception due to attorneys’ procedural mistakes.
In 2009, interest groups representing both healthcare providers and injured patients worked together “to draft and pass” several amendments to Tennessee’s medical malpractice statute that aimed to improve medical malpractice litigation for all involved. According to the Tennessee Supreme Court, the goals of the 2009 amendments were “to give defendants written notice that a potential healthcare liability claim may be forthcoming,” to “facilitate early resolution of healthcare liability claims,” and to “equip[] defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.” To accomplish these goals, the legislature required medical malpractice plaintiffs to satisfy six pre-suit “notice requirements,” and it further required plaintiffs to file a “certificate of good faith” with their complaints in cases in which expert testimony would eventually be required.
Due to the myriad technical dismissals that resulted from these reforms, however, the 2009 amendments unexpectedly turned out to be red tape with fangs for medical malpractice plaintiffs. . . . Thus, what began as a laudable effort to improve medical malpractice litigation in Tennessee has instead created new procedural barriers that cause many cases to be dismissed on grounds that are completely unrelated to the merits of a plaintiff’s claim.[1]
Critically, the HCLA provides that a plaintiff who complies with the statute’s mandatory pre-suit notice requirements automatically receives a 120-day extension to the one-year statute of limitations for filing suit. In theory, this extension benefits both parties by affording them a longer period of time to negotiate a potential settlement before contentious litigation begins. In practice, however, the extension functions as a “fatal booby trap for unwary plaintiffs,” because “if a plaintiff’s attorney has erred in complying with one or more of the HCLA’s pre-suit notice requirements, then he almost invariably will not discover his error until the initial one-year statute of limitations has expired.”[2]
The Court’s opinion in Runions v. Jackson-Madison County General Hospital District makes clear that this “fatal booby trap” has just claimed another victim. In Runions, the aggrieved mother (or, more accurately, her attorney) attempted to comply with all of the HCLA’s pre-suit notice requirements before filing her lawsuit. Critically, however, her attorney made one significant misstep: he misidentified the hospital’s owner and operator. As the Court explains:
“Ms. Runions knew that she and her baby received medical treatment at Jackson-Madison County General Hospital, but she did not correctly identify the District as the owner and operator of Jackson-Madison County General Hospital. Instead, she identified and gave pre-suit notice to Bolivar General Hospital, Inc.; West Tennessee Healthcare, Inc.; and West Tennessee Healthcare Network through their registered agent, Ms. Higgs, who also served as general counsel for the District.”
Upon discovering the error, “Ms. Runions moved to amend her complaint to substitute the District for Bolivar General Hospital, Inc. d/b/a Jackson-Madison County General Hospital.” Normally, permitting such an amendment is standard practice; Tennessee Rule of Civil Procedure 15.01 makes clear that permission to amend pleadings should be “freely given” early on in a case, and the error at issue in Ms. Runions’ case was identified almost immediately. Additionally, when a plaintiff has sued the wrong party, Tennessee Rule of Civil Procedure 15.03 provides further that “[a]n amendment changing the party or the naming of the party by or against whom a claim is asserted” should be treated as if it occurred on the date when the plaintiff’s original complaint was filed.
The entire purpose of Tennessee Rule of Civil Procedure 15.03 is to prevent a claim from becoming time-barred by the statute of limitations due to a mere “mistake concerning the identity of the proper party.” In Runions, however, by the time the mistake was discovered, the harm was incurable.
After providing pre-suit notice to the hospital, Ms. Runions’ attorney believed that the statute of limitations had been extended by 120 days based on the HCLA’s automatic extension provision. Because her pre-suit notice had identified the wrong hospital owner, however, the extension was never triggered—something that she did not discover until it was too late. Accordingly, by the time that Ms. Runions learned that her pre-suit notice was defective, the one-year, unextended statute of limitations had already elapsed, and Ms. Runions’ lawsuit was forever time-barred.
As this author has previously noted, this framework conflicts with both Tennessee law generally and the stated purposes of the HCLA specifically. From a broad perspective, “Tennessee law reflects a longstanding, consistent public policy that favors resolving litigation on its merits, rather than promoting dismissals based on purely procedural grounds.”[3] Further, based on an information asymmetry concerning whether the applicable statute of limitations has been extended, mandating strict compliance with the HCLA’s notice provisions in order to trigger the 120-day extension “function[s] to undermine dialogue between litigants by creating perverse litigation incentives that facilitate only mock settlement negotiations and delusive discovery.”[4] As a result, significant reform is in order.
Notably, although Ms. Runions will not be able to pursue a medical malpractice claim against the hospital that delivered her child, she may well be able to pursue a legal malpractice claim against the attorney who represented her. According to practitioners in the space, such claims are rapidly increasing in frequency. Indeed, given how easily attorneys can find themselves on the receiving end of such claims due to the HCLA’s significant procedural complexities, most plaintiff’s lawyers no longer take medical malpractice cases at all.
Read the Tennessee Supreme Court’s unanimous opinion in Tiffinne Wendalyn Gail Runions v. Jackson-Madison County General Hospital District, authored by Justice Sharon G. Lee, here.
[3]Id. at n. 28 (citing Brown v. Samples, No. E2013-00799-COA-R9-CV, 2014 WL 1713773, at *8 (Tenn. Ct. App. Apr. 29, 2014) (collecting cases and holding that “Tennessee courts have long recognized that the interests of justice are promoted by providing injured persons an opportunity to have their lawsuits heard and evaluated on the merits”); Givens v. Vanderbilt Univ., No. M2013-00266-COA-R3-CV, 2013 WL 5773431, at *4 (Tenn. Ct. App. Oct. 24, 2013) (“We conclude that section 121 does not require a court to dismiss a complaint with prejudice for noncompliance with the notice requirement of that section. This conclusion is in keeping with the general principle that ‘Tennessee law strongly favors the resolution of all disputes on their merits.’” (quoting Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn.1996))); Bowers v. Gutterguard of Tennessee, Inc., M2002-02877-COA-R3-CV, 2003 WL 22994302, at *5, (Tenn. Ct. App. Dec. 17, 2003) (“[I]t is the general rule that courts are reluctant to give effect to rules of procedure . . . which prevent a litigant from having a claim adjudicated upon its merits.” (quoting Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991))). See also Chambers, 2014 WL 1266101 at *5.).
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
