Category Archives: Constitutional Law

Update: White County Judge Rescinds Sterilization Order…Sort of

By Daniel A. Horwitz

Last week, news broke of White County General Sessions Judge Sam Benningfield’s wildly unconstitutional standing order that White County inmates who declined to submit to sterilization would receive an additional 30 days in jail.  In an order dated July 26, 2017, Judge Benningfield has formally rescinded his prior order with the caveat that he will still be handing out a eugenics discount to anyone who “demonstrate[s] to the court their desire to improve their situations” by being sterilized.

Even as partially rescinded, however, Judge Benningfield’s policy of determining the length of an inmate’s sentence based on whether the inmate has agreed to submit to sterilization remains illegal.  As previously explained:

 In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom.  Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing.  Whether a defendant has submitted to sterilization is not among them.

White County’s backdoor eugenics program needs to be terminated in its entirety.  The program is a moral outrage and a blight on the entire legal profession.  Nobody—and certainly no member of the Bar—should tolerate it.  If Judge Benningfield will not resign his office, he should be removed.

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Eugenics is Illegal

By Daniel A. Horwitz

On Wednesday evening, News Channel 5 broke the unspeakable outrage that a judge in White County, Tennessee, had signed a standing order providing for a 30-day “reduction” in jailtime if an inmate submits to sterilization.  According to the report, 70 inmates have already accepted this “eugenics discount” in exchange for early release.  Somehow, each aspect of the story is even more shocking than the next.

To begin, General Sessions Judge Sam Benningfield—the mastermind behind White County’s backdoor eugenics program—defended his efforts without any apparent sense of shame, telling Channel 5’s Chris Conte that: “I hope to encourage [inmates] to take personal responsibility and give them a chance, when they do get out, to not to [sic] be burdened with children.”

Even worse, Judge Benningfield’s standing eugenics order has apparently been on file since May 15, 2017—meaning that an untold number of lawyers, judges, doctors, and law enforcement personnel have either acquiesced to it or simply turned a blind eye in the face of a policy that the Rome Statute of the International Criminal Court designates as a crime against humanity.

To be absolutely and unequivocally clear: eugenics is illegal.  In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom.  Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing.  Whether a defendant has submitted to sterilization is not among them.

The framing of Judge Benningfield’s eugenics program as a “voluntary sentencing reduction” is also deeply troubling.  It is not.  Simply stated: In White County, Tennessee, any inmate who refuses to be sterilized is punished with an additional 30 days in jail.

Such a program is profoundly coercive—especially for defendants convicted of minor crimes who may avoid jail time entirely if they submit to sterilization.  Anyone familiar with the criminal justice system knows that this length of time is sufficient to send a person’s life into disarray, because an extra month in prison can and frequently does result in job loss, loss of one’s home, or loss of one’s children.  Of note, under Tennessee law, everyone is also at risk of being imprisoned for 30 days at any time for even the slightest traffic infraction based on law enforcement’s discretion.

In addition to its rank illegality and immorality, it goes without saying that using the coercive power of the state to promote sterilization also has severe potential for abuse.  As a historical matter, eugenics programs always target disfavored minorities—from Jews in Nazi Germany to black men in Tuskegee, Alabama.  Firmly in keeping with this tradition, Judge Benningfield’s eugenics program is reserved for White County inmates and apparently targets those suffering from drug addiction.  In this regard, it is no less disgusting.

Judge Benningfield’s eugenics program is an outrage.  He need not serve on the bench any longer, and he need not keep his law degree any longer.  Infuriatingly, this also is not the first time that an officer of the Court who has been charged with upholding the law has implemented a (very recent) sterilization program in Tennessee—a fact that is similarly unconscionable in its own right.  If Tennessee’s administrators of the practice of law took a fraction of the effort that they’ve expended trying to prevent qualified immigrants from taking the bar exam and redirected it toward removing people like Judge Benningfield from the profession, perhaps further abuses like this would be avoided.

Compounding the outrage is that nobody has yet filed suit over Judge Benningfield’s eugenics program during the two months that it has been in effect.  Whether initiated by the ACLU, a public defender, or a private defense attorney, such a lawsuit needed to be filed yesterday.  If you or a client of yours is affected by White County’s eugenics program and you want assistance pursuing the case, please feel free to contact me at daniel.a.horwitz@gmail.com.  I will gladly take the case pro bono and donate the proceeds to the Holocaust Museum and the Tuskegee History Center.  A program like this violates what the United States Supreme Court has declared to be “one of the basic civil rights of man,” and nobody—least of all the Bar—should tolerate it.

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Defamation Lawsuit Filed Against Restaurateur Randy Rayburn Dismissed in Full

The defamation lawsuit filed against beloved Nashville restaurateur Randy Rayburn has been dismissed outright by Davidson County Circuit Court Judge Kelvin Jones.  The costs of the lawsuit were also assessed against Plaintiff Tom Loftis, the aggrieved former director of The Randy Rayburn School of Culinary Arts at Nashville State Community College, who had sued Mr. Rayburn for a whopping $1.5 million over a March 2, 2016 Tennessean article that had reported that the program was turning out unqualified students.

The lawsuit, first reported by the Nashville Business Journal, drew national media coverage due in part to its “extraordinarily innocuous subject matter.”  According to one media outlet, the lawsuit’s “attempt to fashion a libel lawsuit out of nothing bears far more resemblance to those filed by plaintiffs with fools for lawyers.”  The Plaintiff in the case was represented by Nashville attorneys Gary Blackburn and Bryant Kroll.

In his verbal ruling from the bench dismissing the lawsuit against Mr. Rayburn, Judge Jones noted that under Tennessee law, an allegedly defamatory statement must “be read as a person of ordinary intelligence would understand it in light of the surrounding circumstances.”  Judge Jones also observed that whether a statement is capable of being understood as defamatory “is a question of law to be determined by the court.”  Finding that Mr. Loftis’s Complaint could not satisfy these basic standards even at the motion to dismiss stage, Judge Jones dismissed Mr. Loftis’s lawsuit with prejudice and assessed him the costs of the litigation.

Said Daniel Horwitz, Mr. Rayburn’s lead counsel: “We are pleased that this baseless lawsuit has come to a quick and much-deserved end.  The legal system should not be used to litigate hurt feelings or to deter people from speaking to the media.  We are grateful that Judge Jones dismissed this frivolous lawsuit at its first appearance, and we are thrilled that Mr. Rayburn will be able to recommit his full attention to doing what he loves: running wonderful restaurants, serving his community, and feeding delicious food to his grateful patrons.”

Documents from the case and selected media coverage are available below.

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Case Documents:

Plaintiff’s First Amended Complaint

Defendant’s Motion to Dismiss First Amended Complaint

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

Defendant’s Reply to Plaintiff’s Response

*Order Dismissing Plaintiff’s Complaint With Prejudice

Transcript of Hearing on Motion to Dismiss

Brief of Plaintiff-Appellant Thomas Nathan Loftis, Sr.

Brief of Defendant-Appellee and Cross-Appellant Randy Rayburn

Selected Media Coverage:

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

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

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

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

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

All Briefs Are Now Filed In the Case of the “Obviously Very, Very Qualified” Vanderbilt Law Student Prevented from Taking Bar Exam

By Daniel Horwitz:

Briefing is officially complete in Gluzman v. Tennessee Board of Law Examiners—the case of the “obviously very, very qualified” Vanderbilt Law School student who graduated Vanderbilt with an eye-popping 3.919 GPA but was still denied even the opportunity to take the Tennessee bar exam because he earned his undergraduate degree and his first law degree in his birth country of Argentina.  The case is now awaiting a ruling from the Tennessee Supreme Court.

While his case has been pending, Mr. Gluzman took and passed the New York bar exam on his first attempt.  However, rather than uprooting his family unnecessarily, he still hopes to be able to take the bar exam in Tennessee and practice law near his wife’s business in Memphis.

The briefing in Gluzman v. BLE features the involvement of three leading national conservative groups, which have argued that the Board’s crippling regulations violate Mr. Gluzman’s fundamental right to earn a living free from irrational government overreach.  Tennessee’s two flagship law schools—Vanderbilt Law School and the University of Tennessee College of Law—also filed petitions in the case after seeing students disenroll from their law programs once the Board began implementing its new protectionist regulations.  All parties’ briefs in the case are available below.

Petitioner Maximilano Gluzman’s Principal Brief

Brief of Respondent the Tennessee Board of Law Examiners

Petitioner Maximiliano Gluzman’s Reply Brief

Brief of Amici Curiae The Beacon Center, Cato Institute, and Goldwater Institute

Petition of Vanderbilt Law School and University of Tennessee College of Law

Mr. Gluzman’s battle against the Tennessee Board of Law Examiners has attracted national media attention due in part to the Board’s refusal to permit Mr. Gluzman and other lawyers “from the vast majority of countries around the world” from ever being able to take the Tennessee bar exam regardless of their qualifications.  In Mr. Gluzman’s case, the Board’s policy is also particularly difficult to justify, because the Board itself has formally acknowledged that Mr. Gluzman is “obviously a very, very qualified person.”  Selected news coverage about the case is available below.

-Nashville Post: Argentine lawyer challenging Tennessee Board of Law Examiners

-Nashville Post: National conservative groups join local bar fight

-Above the Law: State Bars Foreign Student From Bar Exam — Next Stop, State Supreme Court

-ABA Journal: Vanderbilt law prof who taught Argentine LLM student backs his bid to take the bar exam

-The Tennessean: How Tennessee discriminated against a talented Vanderbilt law grad

-Cato At Liberty Blog: Even Lawyers Have the Right to Earn an Honest Living

-Beacon Center Blog: Banned From the Bar Exam

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Nashville Scene: “The Tennessee Supreme Court Keeps Reversing Itself, and Criminal Defense Attorneys Are Worried”

Via Stephen Elliot, The Nashville Scene: (link)

In 2012, the Tennessee Supreme Court ruled that a defendant who pleads guilty to a crime can appeal the judgment if exculpatory evidence is discovered later.

Four years later, the same court changed its mind.

What occurred in the intervening four years to necessitate such a pivot by the state’s highest court? Nothing, according to Justice Sharon G. Lee.

. . . .

“Since 2014, the Tennessee Supreme Court has aggressively sought to federalize Tennessee law by striking down state-specific protections that prior iterations of the court had developed under Tennessee’s state constitution and civil rules,” says Daniel Horwitz, a Nashville attorney and the editor of ScotBlog, a website devoted to the state Supreme Court. “A few significant state-level protections still remain. However, given that prior precedent — no matter how recent or firmly established — has had virtually no influence on the Tennessee Supreme Court’s decisions to overturn its previous rulings, it stands to reason that these protections are vulnerable to being abandoned as well.”

Read more: http://www.nashvillescene.com/news/features/article/20857900/the-tennessee-supreme-court-keeps-reversing-itself-and-criminal-defense-attorneys-are-worried

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Jason Bryant Statement on Recent Coverage Regarding Lillelid Murders

In the weeks leading up to a scheduled hearing on her petition for resentencing, Ms. Karen Howell—one of the co-defendants who pleaded guilty to the Lillelid murders—along with her co-defendant, Ms. Natasha Cornett, released a pair of lengthy, self-serving statements that several media outlets have since published unedited and without verification.  The Greene County District Attorney’s Office and its agents have since responded to those statements with statements to the media of their own.

Jason Bryant, the then-14-year-old child who has also filed a petition for resentencing on account of his being a juvenile at the time of his offense, has not sought to comment publicly on the case.  However, in response to the recent, prejudicial coverage relating to his upcoming proceedings, Daniel Horwitz, lead counsel for Jason Bryant, has released the following statement on Mr. Bryant’s behalf:

_______________

My heart breaks for the Lillelid family, which suffered what can only be described as a horrific and unspeakable tragedy.  It is, however, highly inappropriate for Karen Howell, Natasha Cornett, the Greene County District Attorney’s Office, or any other party involved in this case to attempt to litigate disputed legal issues through the media.  Those attempts have seriously prejudiced Jason Bryant’s right to a fair proceeding, and they will likely necessitate a change of venue when his hearing takes place.

Although Rule 3.6(a) of the Rules of Professional Conduct strongly counsels against public comment in cases like this, Rule 3.6(c) includes an exception permitting attorneys to make public statements when it becomes necessary to correct a misimpression in the public record due to “the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”  Consequently, the purpose of this statement is to correct three such misimpressions.

First, Mr. Bryant did not shoot anyone, and no jury has ever determined that he did.

Second, former District Attorney General Berkeley Bell’s statement that “the co-defendants blamed the shooting on Bryant because he was the youngest of the group” is accurate, as is his statement that “Bryant wasn’t part of the group.”  In contrast, Karen Howell’s and Natasha Cornett’s self-serving statements assigning Jason Bryant the blame for the Lillelids’ murders are not.  When Jason Bryant’s adult co-defendants discovered that Mr. Bryant—who was the only outsider to the otherwise closely-knit group, and who was also the youngest member of the group by far—was actually a juvenile who had pretended to be significantly older than he was, one of his adult co-defendants instructed him that he had to take responsibility for the Lillelids’ slayings.  That individual then pointed a gun at Mr. Bryant, shot him in the hand, and threatened to kill him if he did not.  Mr. Bryant still has visible scars from this event where the bullet went through his hand and entered his leg.

Third, Mr. Bryant was threatened and coerced into joining the group plea bargain to life without the possibility of parole against his will and against his clear legal interests.  Jason Bryant was just a fourteen-year-old child at the time of the Lillelids’ murders, and thus, he was not eligible for the death penalty on account of his being a juvenile.  As such, Mr. Bryant gained nothing from accepting a group plea bargain to a life sentence without the possibility of parole, which served only to spare his adult co-defendants the death penalty.

It is our position that these facts and the U.S. Supreme Court’s recent Eighth Amendment jurisprudence establishing that it is nearly categorically unconstitutional to sentence juveniles to life without the possibility of parole entitle Mr. Bryant to a new sentencing hearing.  These issues, however, must be decided in a court of law, rather than in the court of public opinion.  Accordingly, this will be Mr. Bryant’s first and only public statement on this case.  We ask that the parties and the media respect the judicial process and refrain from further prejudicing Mr. Bryant’s right to a fair proceeding going forward.

_______________

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Metro Drops “Obscene Bumper Sticker” Citation Against Dustin Owens; Concedes Bumper Sticker Is Protected By the First Amendment

Nashville, Tennessee, March 13, 2017—In response to a lawsuit filed by Dustin Owens after he was cited for displaying what his arresting officer claimed was an “obscene bumper sticker,” lawyers for the Metropolitan Nashville Police Department have conceded that “Mr. Owens is correct that the bumper sticker at issue does not fit the criteria of ‘obscene and patently offensive’ as those terms are defined in Tenn. Code Ann. § 55-8-187 and under relevant First Amendment jurisprudence.”  As a result, Metro has agreed to dismiss Mr. Owens’ citation, and it will also submit to a declaratory judgment that the bumper sticker at issue “is protected by the First Amendment to the U.S. Constitution.”  Under the parties’ settlement agreement, Metro will also pay for the costs of Mr. Owens’ lawsuit.

Mr. Owens’ resounding legal victory comes after extensive local and national media coverage of his arrest for displaying the following crass but comical bumper sticker:

Said Daniel Horwitz, Mr. Owens’ lead counsel: “The statute under which Mr. Owens was cited is facially unconstitutional.  Hard-core censorship of this nature also has no place in a free society.  We’re ecstatic about this victory, and we appreciate Metro’s prompt concession that the position taken by Mr. Owens’ arresting officer was nakedly meritless.”

Added David L. Hudson, Jr., who also represented Mr. Owens in the lawsuit: “Mr. Owens’ bumper sticker is clearly protected speech, a form of parody, and not remotely close to obscenity.  I applaud Dustin’s courage in challenging his unconstitutional citation, and I am proud to have represented him.”

Mr. Owens’ Complaint against the MNPD and his Application for a Temporary Injunction are available here and here, respectively.  The individuals referenced in this release will be available for further comment at daniel.a.horwitz@gmail.com and davidlhudsonjr@gmail.com once the parties’ settlement agreement has been approved by the Court.

Selected media coverage regarding the case is available at the following links:

Selected Media Coverage:

-Patch: Obscenity Charges Dropped In Nashville Stick Figure Sex Case

-Faultlines: Nashville Cops Hate Stick Figure Sex (and the First Amendment)

-Heat Street: Tennessee Cops Back Down on Fine For ‘Obscene’ Bumper Sticker of Stick Figures

-TechDirt: Driver Sues State After Receiving Ticket For ‘Obscene’ Stick Figure Vehicle Decal

Case Filings:

Plaintiff’s Complaint

Plaintiff’s Application for Temporary Injunction

*Order Granting Judgment to Plaintiff

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Bill Introduced to Allow In-Home Beauty Services in Tennessee

Nashville, Tenn. – February 8, 2017 — State Senator Steve Dickerson, R-Nashville, and State Representative Sam Whitson, R-Franklin, introduced legislation today that would allow Tennesseans to purchase cosmetology services in the privacy of their own homes.

The reform comes after The Tennessee Board of Cosmetology and Barber Examiners filed a complaint last year against Belle, a popular Nashville-based technology company that provides on-demand health and beauty services.  The Board initially alleged that Belle was violating the state’s cosmetology laws, but withdrew its complaint after Belle formally contested the Board’s allegations.  The Board’s decision to withdraw its complaint was covered widely in local, state and national media including Forbes​, ​Yahoo, ​Reason, ​the Nashville Business Journal​ and ​​the Memphis Commercial Appeal, among others.

“As we move forward into the 21st century, we must update state rules and regulations to reflect the realities of the 21st century economy,” said Senator Dickerson.  “This bill will remove barriers that are denying Tennesseans the opportunity to develop and grow in their chosen profession. By removing these impediments, we allow the entrepreneurial spirit of Tennesseans to flourish, increase freedom and enhance choice for our state’s consumers.”

“The regulatory structure of our state must be thoughtfully crafted in such a manner as to allow for constant innovation and facilitate consistent growth in the new economy,” added State Representative John Ray Clemmons, D-Nashville, an early supporter of the reform.  “Tennessee must strive to attract entrepreneurial talent and new jobs.”

“Last fall, the Tennessee Board of Cosmetology unlawfully attempted to shut down one of Nashville’s most exciting new tech companies for the sole purpose of protecting an out-of-date industry competitor from competition,” said Daniel Horwitz, Belle’s attorney.  “This bill ensures that the Board will be prevented from engaging in such lawless behavior ever again.”

“The repeal of these outdated regulations means beauty professionals can freelance in a way that they see fit, and whether that’s with us or by themselves, I believe everyone has that right,” said Armand Lauzon, CEO of Belle. “This new legislation paves the way for further innovations and economic growth in Tennessee, and perhaps most importantly, it will allow consumers to have the right to make the choices they deserve.”

Read more about the case below:

Tennessee Regulators Drop Complaint, Won’t Block Beauty App From Operating

Tennessee Wants To Shut Down This Beauty And Health App For Offering ‘Highly Disturbing’ Competition

Regulators withdraw complaint against Nashville-based startups

Tennessee Cosmetology Board Admits it Doesn’t Have Authority To Regulate Tech Companies

How This Nashville Tech Company Challenged a State Regulatory Board and Won

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New in the February 2017 Tennessee Bar Journal: Safeguarding Crime Victims’ Private Records Following The Tennessean v. Metro

By Daniel Horwitz:

In March 2016, the Tennessee Supreme Court ruled 4–1 that law enforcement’s investigative files are categorically exempt from public disclosure under the Tennessee Public Records Act (TPRA) throughout the pendency of a criminal case. The underlying lawsuit pitted a vast media coalition spearheaded by The Tennessean against both law enforcement officials and a rape victim who intervened to protect her privacy interests under the pseudonym “Jane Doe.” Ultimately, the court’s majority opinion represented a resounding victory for law enforcement and a significant setback for Tennessee’s news media, which lost on every substantive claim presented. At present, however, how the court’s ruling will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is uncertain.

Continue reading New in the February 2017 Tennessee Bar Journal: Safeguarding Crime Victims’ Private Records Following The Tennessean v. Metro

The Tennessee Supreme Court Has Agreed to Hear a Laughably Egregious Case of Economic Protectionism

The Tennessee Supreme Court has agreed to hear a laughably egregious case of economic protectionism in its upcoming term.  The case pits Vanderbilt Law School alumnus Maximiliano Gluzman – a preeminently qualified lawyer who graduated Vanderbilt’s LL.M. program with an almost impossible 3.919 GPA – against the Tennessee Board of Law Examiners, which has refused to allow Mr. Gluzman to take the Tennessee bar exam solely because he’s foreign.

Given the extraordinary facts of Mr. Gluzman’s case, the Board will struggle to mount a straight-faced claim that its decision to deny Mr. Gluzman the opportunity to take the Tennessee bar exam is based on anything other than its interest in protecting Tennessee’s native-born attorneys from competition—a result that benefits lawyers but harms consumers by artificially raising prices.  As a consequence, the case has the potential to extend Tennessee’s already-robust precedent on economic liberty to an industry that it has never reached before: legal services.

In 2002, the United States Court of Appeals for the Sixth Circuit – which has jurisdiction over Tennessee – established ground-breaking federal precedent by holding 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]  Significantly, though, the Tennessee Supreme Court boasts an even prouder history of protecting economic liberty under the comparable provisions of Tennessee’s state Constitution.  For example, in the 1956 case Consumers Gasoline Stations v. City of Pulaski, the Tennessee Supreme Court held that: “Although [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]  Additionally, more than half a century before that, the Tennessee Supreme Court held in Harbison v. Knoxville Iron Co. that:

“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.[3]

Of note, the Tennessee General Assembly has since expanded these precedents even further as a legislative matter by enacting the “Right to Earn a Living Act” in 2016,[4] which recognized that: “it is in the public interest to ensure the right of all individuals to pursue legitimate entrepreneurial and professional opportunities to the limits of their talent and ambition” without unnecessary governmental interference.

Ostensibly, bar admission rules are intended to protect the public from unqualified attorneys.  Historically, however, they’ve often been wielded to keep disfavored minorities—like Jews and women—from becoming lawyers instead.[5]  Barriers imposed between states themselves have also been used more often than not to “insulat[e] [in-state] practitioners from out-of-state competition,”[6] rather than being adopted for the purpose of promoting any actual public interest.  Such is the case with respect to Mr. Gluzman as well—a fact that the Tennessee Supreme Court is highly unlikely to overlook.

In Mr. Gluzman’s case, there can be no serious claim that he would pose even the slightest threat to the public if he were permitted to take the Tennessee bar exam.  In fact, during Mr. Gluzman’s hearing before the Board of Law Examiners, the Board itself conceded that Mr. Gluzman was “obviously a very, very qualified person.”  His extraordinary academic credentials also support this conclusion in full.  For example, while competing against Vanderbilt’s American JD students (in his second language, no less), Mr. Gluzman was able to graduate with an eye-popping 3.919 GPA—good enough to put him at the top of Vanderbilt’s Dean’s List each semester and quite possibly making him the most academically-qualified foreign applicant ever to apply to take the bar exam in Tennessee.  Two of Mr. Gluzman’s Vanderbilt Law School professors also provided expert testimony in support of his application to take the bar exam, with one observing that Mr. Gluzman was “one of the very best students I ever had the privilege of teaching in 20 years,” and the other testifying that he was “clearly top of the class.”  Mr. Gluzman’s application to take the Tennessee bar exam also comes after more than a decade of professional success as a corporate lawyer in Argentina.

Despite this sterling record of achievement, however, the Board of Law Examiners denied Mr. Gluzman not only the opportunity to become a lawyer in Tennessee—it told him that he may never even take the Tennessee bar exam.  The purported basis for the Board’s denial was that Mr. Gluzman’s undergraduate and legal education were not “substantially equivalent” to an American education: a conclusion that itself conflicts with an expert foreign credential evaluation report filed in his case that unequivocally concluded otherwise.  According to the Board, though, a foreign applicant like Mr. Gluzman must have earned “a degree that is equivalent to a Bachelor’s degree or higher followed by a degree that is equivalent to a Juris Doctorate degree,” which he did not.

Conveniently, because the vast majority of countries around the world combine undergraduate and legal educations into just a single degree over the course of a five- or six-year period, one expert witness testified that only “[foreign] students from nine Canadian provinces, a few Australian students, and a few Japanese students” may ever hope to win permission take the Tennessee bar exam under the Board’s current standard.  Attorneys from anywhere else in the world, however, are forever prohibited from becoming lawyers in Tennessee unless they opt to re-do their entire undergraduate and legal education in the United States.  Obviously, no foreign applicant is willing to forfeit the time (seven years) and money (hundreds of thousands of dollars at a minimum, factoring in opportunity costs) necessary to satisfy that requirement.  Instead, the only rational decision is to move to states like Texas, which makes an effort to accommodate foreign attorneys rather than placing insurmountable barriers in front of them for the purpose of curbing competition.

Exacerbating this groundless discrimination, LL.M. Degrees – which many states permit to “cure” any claim of insufficient foreign credentials – from law schools like Vanderbilt and the University of Tennessee are now disregarded as useless by the Tennessee Board of Law Examiners if an attorney does not hail from one of the three aforementioned countries with law schools that match American JD programs.  Thus, if permitted to stand, the Board’s decision would significantly undermine the integrity of the LL.M. programs offered by Tennessee’s two flagship law schools.  Fearing lasting and devastating consequences from the Board’s grievous error, the Board’s decision immediately prompted Vanderbilt University and UT to file a joint petition in support of Mr. Gluzman highlighting the seriousness of the problem that the Board had created.  Even then, however, the Board opted to ignore it.

In addition to disregarding Mr. Gluzman’s surpassing personal qualifications, the reality that the Board of Law Examiners is not actually focused on protecting the public from unqualified lawyers is revealed by the fact that it has taken no apparent interest in the declining bar passage rates posted by Nashville School of Law in recent years.  The last time the bar exam was administered in Tennessee, for example, fully 72% of Nashville School of Law graduates failed it—a fact that did not visibly cause the Board of Law Examiners even the slightest concern.  Now, however, an indisputably qualified Vanderbilt Law School graduate wants to sit for the bar exam, but because he’s foreign, the Board won’t even let him take it?  Plainly, the Board’s motives have little and less to do with protecting the public from unqualified lawyers, and a great deal more to do with protecting American attorneys from foreign competition.  Whether the Board’s decision – and all of its attendant consequences – will be permitted to stand, however, only time will tell.

Gluzman v. Tennessee Board of Law Examiners is expected to be heard in the Spring or Summer of 2017.  Read Mr. Gluzman’s brief before the Tennessee Board of Law Examiners here.

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[1] Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).

[2] 292 S.W.2d 735, 737 (Tenn. 1956).

[3] 53 S.W. 955, 957 (Tenn. 1899).

[4] See Tenn. Code Ann. § 4-5-501, et seq. (2016).

[5] See Deborah Rhode, Moral Character As A Professional Credential, 94 Yale L.J. 491, 497-502 (1985) (noting that State bars historically have excluded women, Jews, those of Eastern European decent, religious fanatics, Communists, and adulterers, among others, because these allegedly socially unacceptable or radical political behaviors were said to have demonstrated a propensity to violate professional norms).

[6] Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 278 (1985).