A special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims, the Tennessee Supreme Court has held.
The Tennessee Supreme Court had previously held that in order to protect a defendant’s right to due process under the Tennessee Constitution, a special jury instruction is required in certain cases involving both kidnapping and a more serious criminal offense, such as robbery, burglary or rape. The basis for this special jury instruction – which is known as a “White” instruction in light of the eponymous Tennessee Supreme Court case State v. White[1] – traces back to the Tennessee Supreme Court’s earlier decision in the 1991 case State v. Anthony.[2] In Anthony, the Tennessee Supreme Court recognized that “the offense of kidnapping. . . at times ‘could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.’”[3]
Stated differently, because “[i]t is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained,” the Anthony court expressed concern that a defendant could be convicted for two separate crimes –kidnapping as well as a more serious crime – when the defendant had only truly committed the more serious crime.[4] In other words: “Where a defendant is charged with kidnapping and an accompanying offense involving some confinement . . . , there are appropriate due process concerns that the defendant could be convicted of two crimes—e.g. robbery and kidnapping—when he has only committed one crime—robbery.”[5] More simply, as one Court of Criminal Appeals Judge once explained the issue: “I do not believe the legislature intended robbers to be prosecuted as kidnappers.”[6]Continue reading Tennessee Supreme Court holds that a special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims.→
In the latest round of litigation over the constitutionality of Tennessee’s death penalty protocol, thirty-five death-sentenced inmates[1] filed a lawsuit against several Tennessee prison officials challenging the constitutionality of the electric chair as a method of execution. The inmates’ claims in this particular case arose out of Tennessee’s “Capital Punishment Enforcement Act” (CPEA), which is codified at Tenn. Code Ann. § 40-23-114(e). Following nationwide difficulties securing the chemicals necessary to implement Tennessee’s pre-existing lethal injection protocol, the state legislature enacted the CPEA in 2014 in an effort to permit the use of the electric chair as an alternative method of execution should the requisite lethal injection chemicals be unavailable.
The U.S. Court of Appeals for the Second Circuit has officially weighed in on an issue that looks increasingly likely to reach the U.S. Supreme Court: Whether laws that promote pure economic protectionism — known in economic terms as “rent seeking” — are prohibited by the 14th Amendment to the Constitution. As this blog has previously explained, with Nashville’s voters contemplating adding a “local hire” provision to the Metropolitan Charter this August, this debate appears poised to return to Tennessee soon as well.
The Second Circuit’s opinion helpfully outlines the divergence of authority that has emerged with respect to this issue, noting:
In recent years, some courts of appeals have held that laws and regulations whose sole purpose is to shield a particular group from intrastate economic competition cannot survive rational basis review. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir. 2013) (“[N]either precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose[.]”); Merrifield v. Lockyer, 547 F.3d 978, 991, n.15 (9th Cir. 2008) (“[M]ere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review.”); Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (“[P]rotecting a discrete interest group from economic competition is not a legitimate governmental purpose.”). The Tenth Circuit, on the other hand, has squarely held that such a protectionist purpose is legitimate. See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004) (“[A]bsent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest.”).
Ultimately, the majority opinion flatly concludes that: “economic favoritism is rational for purposes of our review of state action under the Fourteenth Amendment.”
Rejecting the majority’s conclusion on this point, however, the similarly informative concurring opinion penned by Judge Christopher Droney reaches a directly contrary view. Judge Droney explains:
[T]here must be at least some perceived public benefit for legislation or administrative rules to survive rational basis review under the Equal Protection and Due Process Clauses. As the majority acknowledges, only the Tenth Circuit has adopted the view that pure economic protectionism is a legitimate state interest. See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004). Two of the circuits that reached the opposite conclusion expressly rejected the Tenth Circuit’s approach. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222‐23 (5th Cir. 2013); Merrifield v. Lockyer, 547 F.3d 978, 991 n.15 (9th Cir. 2008).
I agree with the Fifth Circuit’s reasoning in St. Joseph Abbey, particularly insofar as it disputes the Tenth Circuit’s reliance in Powers on the very Supreme Court cases that the majority cites in support of its holding here. See St. Joseph Abbey, 712 F.3d at 222 (“[N]one of the Supreme Court cases Powers cites stands for that proposition [that intrastate economic protectionism is a legitimate state interest]. Rather, the cases indicate that protecting or favoring a particular intrastate industry is not an illegitimate interest when protection of the industry can be linked to advancement of the public interest or general welfare.” (emphasis in original)); see also Powers, 379 F.3d at 1226 (Tymkovich, J., concurring) (“Contrary to the majority . . ., whenever courts have upheld legislation that might otherwise appear protectionist . . ., courts have always found that they could also rationally advance a non‐protectionist public good.” (emphasis in original)).
A review of the Supreme Court decisions confirms the Fifth Circuit’s conclusion that some perceived public benefit was recognized by the Court in upholding state and local legislation. . .
As this author has previously noted, the U.S. Court of Appeals for the Sixth Circuit — which has jurisdiction over Tennessee — was the first Circuit court to resolve this issue, holding in Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) that: “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.” The Tennessee Supreme Court has reached a similar conclusion with respect to the Tennessee Constitution, concluding in Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956) 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.”
Whether this line of authority will cause Nashville’s local hire ordinance to be invalidated — and whether the U.S. Supreme Court will definitively answer the question to resolve the growing divergence of authority — only time will tell.
Questions about this article? Email Daniel Horwitz at [email protected].
On August 6, 2015, Davidson County voters will head to the polls to vote on Metro Charter Amendment 3, which has been dubbed the “local hire” amendment. If enacted, the crux of Amendment 3 is that 40% of the work performed on taxpayer-funded construction projects within Davidson County would legally have to be set aside for Davidson County residents.
In recent weeks, opposing advocates have expressed their views on Charter Amendment 3 in editorials published in The Tennessean. First, on June 22, 2015, union organizer and community activist Ashford Hughes penned the op ed: “[A] Vote for Charter Amendment 3 is [a] vote for local jobs,” in which he argued – among other things – that “[i]t makes no sense to bring in out-of-county and out-of-state hires when so many Nashville construction workers, engineers and skilled tradesmen and women are out of work.” Making the contrary case, on June 30, 2015, Nashville Area Chamber of Commerce President Ralph Schulz penned the op ed: “Vote no on Amendment 3: It sounds good, but won’t work,” contending that the measure “would translate to longer delays on Metro construction projects and more money coming out of taxpayers’ pockets.” Various other interested parties have also weighed in on the matter in recent days, disputing the referendum’s likely policy ramifications.
On May 27, 2010, Terrence Feaster savagely beat his housemate, dragged her into a bedroom, tied her feet to an entertainment center, and threatened to kill her if she moved. Mr. Feaster was subsequently arrested and indicted for his crimes. Following a trial, a jury convicted him of voluntary manslaughter, aggravated assault, and false imprisonment. Over Mr. Feaster’s objection, the trial court declined to “merge” any of his convictions, meaning that it did not eliminate any of them for being duplicative.
Approximately two years after Mr. Feaster’s crimes, the Tennessee Supreme Court decided State v. Watkins.[1]Watkins adopted a new test for determining when multiple convictions for offenses that arise under different statutes must be merged in order to avoid violating Tennessee’s Double Jeopardy clause.[2] Importantly, Watkins also expressly abandoned the earlier (four-factor) merger test that the Tennessee Supreme Court had established in State v. Denton.[3] For various reasons, the Denton rule was more favorable to criminal defendants than the Watkins rule, which is now in effect today. Under the current Watkins standard, courts must conduct the following three-factor inquiry to determine whether a defendant’s convictions must be merged:
First: “Tennessee courts must focus upon ascertaining legislative intent. If the General Assembly has expressed an intent to permit [or not to permit] multiple punishment, no further analysis will be necessary, and multiple convictions should be upheld against a double jeopardy challenge.”[4]
Today was a major decision day at the Supreme Court of the United States. Although the Court released only two opinions, both of today’s decisions carry enormous social import in Tennessee and throughout the nation. Each also represents a major victory for the Obama Administration, which secured wins in support of its health care and housing policies. The day’s two decisions were as follows:
In 2010, Congress passed the Patient Protection and Affordable Care Act (“the ACA”), which has since been derided by many as “Obamacare.” Among other provisions of the law, the ACA sought to make insurance more affordable by giving refundable tax credits to individuals with household incomes that fell between 100 percent and 400 percent of the federal poverty line.
The ACA also required the creation of an “Exchange” in each state, which is essentially a marketplace that allows people to compare and purchase health insurance plans. The Act afforded each state the option of establishing its own Exchange, but it also provided that the federal government would establish “such Exchange” if a state chose not to establish its own exchange. At issue in this case, the ACA further provided that tax credits “shall be allowed” to any “applicable taxpayer,” but only if the taxpayer had enrolled in an insurance plan through “an Exchange established by the State[.]” Thus, the specific question presented in this case was whether tax credits would be available on all exchanges, or whether they would only apply to exchanges established by states.
Held: Tax credits are available to individuals in states that have a federal exchange. According to the Supreme Court: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” Consequently, based on the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” tax credits are available to individuals who purchase health insurance on either a federally-created or a state-created insurance exchange.
Yesterday, Judge Monte Watkins declared a mistrial in the consolidated prosecutions of Cory Batey and Brandon Vandenburg, which have come to be known collectively as “the Vanderbilt rape case.” Judge Watkins’ eight-page mistrial order is accessible here. As explained in detail in this post from last week, Tennessee law presumes jurors to be biased when they give false statements or fail to be forthcoming in response to questions asked during jury selection, and under such circumstances, a new trial is appropriate regardless of the strength of the evidence that was presented. In this case, the juror in question appears to have lied several times in response to a wide array of questions that he was asked during voir dire. For example, in page six of Judge Watkins’ ruling, he explains: “[I]t would be difficult to believe that Juror #9 did not [recall] his involvement in a statutory rape case when sexual assault, rape, and unwanted sexual touching [were] mentioned over one hundred and four times during the course of voir dire.”
Following Judge Watkins’ mistrial declaration, several observers have inquired whether the Double Jeopardy clause of the Fifth Amendment prohibits the government from re-trying the two defendants. It does not. According to the U.S. Supreme Court, barring bad-faith or prosecutorial misconduct, “a mistrial ruling explicitly contemplates reprosecution of the defendant.” United States v. Jorn, 400 U.S. 470, 476 (1971). As the Supreme Court has explained: Continue reading No, the Double Jeopardy Clause does not prevent re-trial in the Vanderbilt rape case.→
The Supreme Court of the United States issued four opinions today that addressed patent royalty payments, administrative searches of hotel guest logs, use of force against detainees, and the application of the Fifth Amendment’s takings clause to personal property.
A few of the Justices also offered a rare, entertaining glimpse into Supreme Court humor. “[H]aving the Court of Appeals calculate ‘just compensation’ in this case would be a fruitless exercise,” Justice Thomas wrote in a concurring opinion involving government takings of raisins. “In this world, with great power there must also come—great responsibility,” quoted Justice Kagan in a case involving royalties over a Spider-Man toy, who also quipped that “[p]atents endow their holders with certain superpowers,” and that “[t]he parties had contemplated that royalties would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).” The day’s four opinions were as follows: Continue reading SCOTUS Decision Day Roundup: Spider-Man royalties, raisin takings, and some Supreme Court humor→
A few weeks ago, Lindsay Boyd penned a fun article for the Beacon Center TN Blog about Nashville’s new Airbnb ordinance entitled “My Dog Has More Freedom Than You Do.” Contrasting Nashville’s newly enacted “Short Term Rental Property” regulations with the comparatively regulation-free environment available to short term dog sitters, Ms. Boyd explains:
“[T]hose of us residing in Nashville will no longer have the same freedoms that our pets do to shop for accommodations or open our homes to prospective vacation renters. This spring, the city of Nashville announced a new policy for Airbnb operations.
Now, not only do Airbnb operators have to pay the same taxes as hotels, but those whose homes are used strictly for “short term rentals” (or Airbnb business) must also stand in line to vie for a limited number of licenses granted by the city—available to a mere 3% of households per census tract. Those who fail to obtain these permits and adapt their services to adhere to further regulations on the number of sleeping rooms, signage, parking, and food service, will simply be out of luck—or become outlaws if they continue to operate unabated.”
After reviewing the provisions of Nashville’s short term rental property ordinance, however, I began to wonder: can Nashville’s Airbnb regulations withstand constitutional scrutiny? From my vantage point – at least with respect to the provision of the ordinance that caps the total number of short term rental permits at “[n]o more than three percent of the single-family or detached two-family residential units within each census tract”[1] – the answer is no. Continue reading Is Nashville’s Airbnb Ordinance Constitutional? Maybe not. →