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.
[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).
Nashville attorney Daniel Horwitz was helping a man expunge his criminal record when he discovered something unexpected: a conviction for violating Tennessee’s Homosexual Practices Act—from 1995.
“Subject was engaged in sexual intercourse with another male subject,” the misdemeanor citation reads. The charge could have landed the defendant—whom I’ll call John Doe—in jail. Instead, Doe took a plea deal and avoided jail time by admitting that he had, indeed, had sex with a man, a practice forbidden by the law. Horwitz told me he was “aghast” to see the charge.
Pervis Payne is a death row inmate in Tennessee who may well be mentally retarded. Significantly, both the United States and Tennessee Constitutions forbid the Government from executing mentally retarded people. In a unanimous 4-0 opinion, however, the Tennessee Supreme Court has ruled that under Tennessee law, Mr. Payne is not allowed to prove that he is mentally retarded to a court.
Pervis Payne was convicted of murder and sentenced to death in 1988. Thereafter, both the Tennessee Supreme Court and the U.S. Supreme Court ruled that under the Tennessee and U.S. Constitutions, executing mentally retarded people is cruel, unusual, and categorically forbidden. Additionally, in 1990, the Tennessee legislature enacted a law providing that: “Notwithstanding any law to the contrary, no defendant with mental retardation at the time of committing first degree murder shall be sentenced to death.”[1] Following these developments, an individual cannot lawfully be executed if the individual has:
(1) Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below;
(2) Deficits in adaptive behavior; and
(3) The [individual’s] intellectual disability . . . manifested during the developmental period, or by eighteen (18) years of age.
Because all of these legal developments came only after Mr. Payne’s conviction, however, Mr. Payne has never had a hearing on the issue of his alleged mental retardation. Nonetheless, there is strong reason to believe that he is indeed mentally retarded. Among other indications, for example, Mr. Payne’s scores from multiple IQ tests administered between 1976 and 2010 all place him within or very near the range of mental retardation. Significantly, one IQ test that was administered when he was nine years old produced a raw IQ score of 69. If accurate, such a score would definitively establish Mr. Payne’s mental retardation so long as Mr. Payne could also prove that he has deficits in adaptive behavior.
After reviewing several of Mr. Payne’s IQ tests and evaluating Mr. Payne personally, Dr. Daniel J. Reschly—a professor of education and psychology at Vanderbilt University—recently stated in a sworn affidavit that Mr. Payne “has significant deficits in adaptive behavior due to substantial limitations in the conceptual skills and practical skills domain.” Based on Mr. Payne’s consistently low IQ scores, his deficits in adaptive behavior, and the fact that Mr. Payne has been intellectually disabled since he was a child, Dr. Reschly also concluded under oath that Mr. Payne satisfies the established constitutional criteria for mental retardation, which would prohibit the Government from executing him.
Armed with this evidence, on April 4, 2012, Mr. Payne’s attorneys attempted to invoke several different procedures under Tennessee law in an effort to win Mr. Payne an evidentiary hearing on his mental retardation claim. However, the trial court summarily denied all of Mr. Payne’s claims without holding a hearing. Ultimately, the case reached the Tennessee Supreme Court.
In adjudicating Mr. Payne’s case, the Tennessee Supreme Court was called upon to decide what procedural mechanism Mr. Payne might use to go about proving that he is mentally retarded. Unfortunately for Mr. Payne, however, the Tennessee Supreme Court ruled that as far as Tennessee law is concerned, no such procedure exists.
a. Standard Post-Conviction Claim
Under Tennessee law, the traditional procedure for challenging a conviction that has become final is to file a “post-conviction petition.” Post-conviction petitions are governed by Tenn. Code Ann. § 40-30-101, which is appropriately called the “Post-Conviction Procedure Act.” Because Tennessee law recognizes what the Tennessee Supreme Court has described as the Government’s “interest[] in preserving the finality of judgments,”[2] however, only certain claims are eligible for consideration. Specifically, in order to obtain post-conviction relief, defendants must prove that either their convictions or their sentences violate a right that is “guaranteed by the Constitution of Tennessee or the Constitution of the United States.”[3]
Notably, the Post-Conviction Procedure Act also imposes a strict one-year statute of limitations for filing post-conviction petitions. Specifically, Tenn. Code Ann. § 40-30-102(a) provides that absent exceptional circumstances, a defendant’s post-conviction petition must be filed “within one (1) year of the date on which the judgment became final, or [else] consideration of the petition shall be barred.” In more cases than not, this one-year statute of limitations operates to foreclose defendants from getting their claims into court at all regardless of their merit. Why, one might wonder? The answer is that most defendants in Tennessee are not aware of the strict one-year requirement, and since convicted defendants generally do not have the right to an attorney until after they have filed a post-conviction petition, they often learn about the one-year limitations period only after it has expired.[4]
With respect to the first requirement—that a conviction or sentence violate either the U.S. or Tennessee Constitutions—Mr. Payne’s claim unquestionably qualified. In December of 2001, the Tennessee Supreme Court held that “the execution of a mentally retarded individual violates the Eighth Amendment to the United States Constitution and article I, § 16 of the Tennessee Constitution.”[5] Barely six months later, in June of 2002, the U.S. Supreme Court followed suit, holding that the Eighth Amendment to the U.S. Constitution “places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”[6] Thus, because Mr. Payne asserted that his death sentence was unconstitutional in light of his mental retardation, this claim qualified for post-conviction review.
Unfortunately for Mr. Payne, however, these constitutional developments came more than a decade after he was convicted. Accordingly, the traditional one-year requirement for filing a post-conviction petition had long expired. As a consequence, Tennessee law prohibited Mr. Payne from having his post-conviction claim heard by a court unless he could “re-open” his post-conviction proceeding by proving that the new rule at issue applies retroactively.
b. “Re-opening” a Post-Conviction Claim Under Retroactivity Exception
The question of whether a new constitutional rule of criminal procedure applies retroactively is one of the most complex inquiries in constitutional law. It has also repeatedly befuddled the Tennessee Supreme Court, which has reversed itself on the issue at least four times in the past twenty years[7] only to arrive—in 2014—at a standard that conspicuously conflicts with the text of the standard that it was attempting to adopt.[8] During the intervening chaos, the Court of Criminal Appeals occasionally applied multiple retroactivity standards to defendants’ claims because it could not parse the Tennessee Supreme Court’s jurisprudence on the matter.[9]
At present, however, the statutory retroactivity standard codified in the Post-Conviction Procedure Act governs retroactivity claims.[10] This statute provides that new rules apply retroactively if they either: (1) “place[] primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” or (2) “require[] the observance of fairness safeguards that are implicit in the concept of ordered liberty.” Confusingly, however, with respect to the second rule, the Court held in 2014 that the Tennessee legislature actually intended to adopt “the federal standard from Teague v. Lane,” rather than the “implicit in the concept of ordered liberty” standard that actually appears in the statute.[11] Thus, at present, the text of the second portion of Tenn. Code Ann. § 40-30-122 is to be ignored in favor of the second Teague v. Lane exception, which provides that retroactivity attaches to “new procedures without which the likelihood of an accurate conviction is seriously diminished.”[12]
Mercifully, the federal judiciary has held unmistakably that the Eight Amendment’s prohibition on executing mentally retarded people applies retroactively to all cases because it places the Government’s ability to execute a certain class of people beyond the Government’s power.[13] Consequently, there is no doubt that both the Tennessee Supreme Court’s December 2001 decision prohibiting the execution of mentally retarded people and the U.S. Supreme Court’s similar June 2002 decision apply retroactively to Mr. Payne. Accordingly, one might be forgiven for believing that Mr. Payne would be entitled to a hearing on his mental retardation claim.
Unfortunately for Mr. Payne, however, the aforementioned statute that allows defendants to “re-open” their post-conviction petitions when a new rule is retroactive also provides that even “if retrospective application of [a] right is required,” the petition to re-open the case “must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial[.]”[14] Whether it violates fundamental fairness to apply such a strict time limitation—or any time limitation—to mentally retarded people; and whether the Government is even permitted to leverage short, strict statutes of limitations in order to insulate itself from otherwise meritorious claims that the Government is attempting to act in excess of its constitutional authority are serious questions for another day. In this case, however, because Mr. Payne did not file his post-conviction petition until 2012, the court held that his claim was time-barred. Had he filed his claim at any time between December 2001 and June 2003, though, then there is absolutely no question that he would have been granted relief.
Undiscouraged, Mr. Payne’s attorneys also attempted to use the U.S. Supreme Court’s more recent decision in Hall v. Florida as the “hook” to allow him to get back into court. In Hall—which was decided in May 2014—the Supreme Court struck down Florida’s death penalty statute because it failed to account for standard error in a defendant’s IQ scores. According to the Supreme Court, such a rigid requirement “misuse[d] IQ score on its own terms[.]”[15] Thus, following Hall, “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”[16]
Consequently, the question for Mr. Payne became whether the rule announced in Hall was retroactive, too. Given its recency, only two courts in the United States had addressed this issue at the time that Mr. Payne’s case was heard, and each reached a bitterly contested, 2-1 decision under the time-pressure of an imminent execution.[17] In both cases, a two-judge majority concluded that Hall was not retroactive because it merely established new procedures for determining whether a defendant was mentally retarded, rather than establishing another substantive restriction on punishment.
There are, however, strong reasons to doubt this claim. Most convincingly, Hall unquestionably restricted the universe of people that the Government is permitted to execute—a result that bears all the hallmarks of a substantive ruling. Specifically, before Hall, individuals with an IQ above 70 were subject to being executed. After Hall, however, some number of individuals with an IQ above 70 are constitutionally prohibited from being executed. Like Atkins, such a result is one of substance in that it “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense.”[18]
Unfortunately, the Tennessee Supreme Court did not engage any of this analysis. Instead, it merely held that because Mr. Payne was unable to identify any “federal appellate decision holding that Hall must be applied retroactively to cases on collateral review,” the court “decline[d] to hold that Hall applies retroactively.” Consequently, Mr. Payne was not permitted to re-open his post-conviction proceeding on the basis of Hall’s retroactivity, either.
c. Writ of Error Coram Nobis
As an alternative to the post-conviction statute, Mr. Payne’s attorneys also filed a petition for writ of error coram nobis. Historically, the common law writ of error coram nobis has served as a “gap-filler” which was invoked “to rectify a recognized wrong when all other possible remedies are no longer available.”[19] In Tennessee, for example, the writ has been used to correct judgments upon the subsequent discovery of a factual error “which, if known at the time of judgment, would have prevented the judgment from being pronounced.”[20]
Subsequently, however, the Tennessee legislature enacted a coram nobis statute that significantly limited the writ’s application. Among other things, the legislature imposed a one-year statute of limitations for coram nobis actions and restricted the relief that it provides to factual errors only (rather than legal errors).[21] It has never been clear whether the statutory writ of coram nobis operated to replace and supersede the common law writ,[22] and indeed, the answer to that question is still not entirely clear even following the Court’s decision in Payne.[23] Given the one-year statute of limitations contained in the writ of error coram nobis statute, however—and after indicating that Mr. Payne’s claim was more appropriately characterized as a legal claim rather than a factual one—the Court denied Mr. Payne coram nobis relief as well.
d. Free-Standing Claim Under Tenn. Code Ann. § 39-13-203
Positing yet another procedural vehicle for his claim, Mr. Payne’s attorneys also argued that he had a free-standing claim under Tenn. Code Ann. § 39-13-203 (the “Intellectually Disabled Defendants/Capital Punishment” statute), which was enacted approximately one year after Mr. Payne was convicted. In pertinent part, this statute provides that: “Notwithstanding any law to the contrary, no defendant [who was mentally retarded] at the time of committing first degree murder shall be sentenced to death.”
Unfortunately for Mr. Payne, however, the Tennessee Supreme Court already ruled on the retroactivity of Tenn. Code Ann. § 39-13-203 back in 2001. In that case, the court concluded that “although the issue as to retroactive application of the statute [wa]s close,”[24] Tenn. Code Ann. § 39-13-203 only applied prospectively. Disappointingly, the court’s analysis on this point completely failed to engage the question of whether Tenn. Code Ann. § 39-13-203 was substantive or procedural, which is traditionally what governs the inquiry under Tennessee law.[25] Notably, the case also serves as a prime example of why the late Justice Scalia railed against the use of legislative history in interpreting statutes—which can frequently be manipulated to arrive at whatever decision a reviewing judge would prefer to reach.
Specifically, when it decided the issue in 2001, the court noted that during the 1990 legislative session, a specific amendment was introduced in the State Senate that would have explicitly provided that Tenn. Code Ann. § 39-13-203 applied only prospectively.[26] The amendment failed and was withdrawn, which one might think would suggest that the legislature disagreed with it and wanted the statute to apply retroactively. Not so, apparently. After hypothesizing that “the legislature’s failure to clearly provide for retroactive operation may have been a product of oversight or may have been based on the assumption that no prisoner then on death row was mentally retarded,” the court concluded that “notwithstanding the presence of some ambiguous language in the statute and in the legislative history, there is no evidence of a clear legislative intent to apply the statute retroactively as required by the general rule.”[27] Accordingly, the court held that Tenn. Code Ann. § 39-13-203 applied only to cases after July 1, 1990.
Revisiting this issue again in Mr. Payne’s case, the Tennessee Supreme Court reaffirmed its 2001 holding in Van Tran that Tenn. Code Ann. § 39-13-203 does not apply retroactively. Yet again, however, the Tennessee Supreme Court failed to ask whether the statute at issue was merely remedial in nature, which this author finds somewhat baffling. Interestingly, the Court’s position that the Intellectually Disabled Defendants/Capital Punishment statute does not apply retroactively also shifted from a “close [call]” to an “inescapable conclusion” in Mr. Payne’s case. Regardless, however, the end result was the same. According to the court: “[Mr. Payne] failed to establish that he has a private cause of action to pursue his claim of [mental retardation] pursuant to the intellectual disability statute.”
e. Additional procedures?
According to a footnote in the court’s opinion, Mr. Payne’s attorneys also claimed that he had a right to an evidentiary hearing on his mental retardation claim under three other procedures available in Tennessee law: a declaratory judgment action; a motion to vacate an illegal sentence; and/or a petition for writ of audita querela. The court declined to rule on any of these potential claims, however, as the record before it did not indicate that Mr. Payne had yet tried to pursue them. Even so, the court implied that these procedures would not allow Mr. Payne to obtain an evidentiary hearing on his claim of mental retardation, either. Accordingly, the court concluded its opinion by “encourag[ing] the General Assembly to consider whether another appropriate procedure should be enacted to enable defendants condemned to death prior to the enactment of the intellectual disability statute to seek a determination of their eligibility to be executed.”
It seems extremely unlikely that the General Assembly will accept this invitation. Accordingly, as far as mentally retarded defendants who received death sentences after 1990 (and who did not have the benefit of effective counsel between 2001 and 2003) are concerned, the constitutional prohibitions against cruel and unusual punishment exist only in theory as a matter of Tennessee law. Notably, however, this very likely does not mean that they will be executed. Instead, it just means that Tennessee’s courts won’t hear the matter, and that federal courts will have to clean up the omission.
Read the Tennessee Supreme Court’s unanimous opinion in Payne v. Tennesseehere.
Questions about this article? Email Daniel Horwitz at [email protected].
[4] Occasionally, defendants also encounter some threshold procedural obstacles to filing post-conviction petitions that prevent them from meeting this deadline (not the least of which is trying to practice law without the assistance of an attorney). For example, although notarization is not required by statute, the standard form for post-conviction petitions inexplicably requires a notary, and prisons are often slow to provide access to them. Additionally, incarcerated defendants generally require a minimum degree of cooperation from prisons in order to file a post-conviction petition by mail, and in some instances, prison staff have been rumored to obstruct inmates from doing so.
[5]Van Tran v. State, 66 S.W.3d 790, 812 (Tenn. 2001)
[6]Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252, 153 L. Ed. 2d 335 (2002) (quotation omitted).
[7]CompareMeadows v. State, 849 S.W.2d 748, 755 (Tenn. 1993) (“we decline to apply the federal standard of retroactivity announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and hold that a new state constitutional rule is to be retroactively applied to a claim for post-conviction relief if the new rule materially enhances the integrity and reliability of the fact finding process of the trial.”); with Van Tran, 66 S.W.3d at 811 (appearing to hold that Meadows standard applies despite state statute adopting Teague standard); with Keen v. State, 398 S.W.3d 594, 601 (Tenn. 2012) (appearing to equate Meadows standard and Teague standard); with Bush v. State, 428 S.W.3d 1, 15 (Tenn. 2014) (expressly acknowledging difference between Meadows standard and Teague standard, holding that Tenn. Code Ann. § 40-30-122 codifies Teague standard, and holding that statutory standard prevails).
[8]See Daniel A. Horwitz, Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J.L. & Pol’y 215, 232 (2015) (noting that “[r]ather than applying the comparatively broad retroactivity standard that had in fact been included in the Post-Conviction Procedure Act, the Bush court instead held that an even narrower [] standard–which the court summarily concluded that the legislature must have “intended” to enact based upon a pair of confused statements made by the bill’s House sponsor nineteen years earlier–would henceforth govern retroactivity law in Tennessee.”), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2564583.
[9]See, e.g., Bush v. State, No. M2011-02133-CCA-R3PC, 2012 WL 2308280 *6-9 (Tenn. Crim. App. June 15, 2012).
[12]Teague v. Lane, 489 U.S. 288, 313, 109 S. Ct. 1060, 1077, 103 L. Ed. 2d 334 (1989).
[13]See, e.g., In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (“there is no question that the new constitutional rule abstractly described in Penry and formally articulated in Atkins is retroactively applicable to cases on collateral review.”); Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002) (“In Atkins, the Supreme Court held at the end of its term that executing a mentally retarded individual violates the Eighth Amendment’s ban on cruel and unusual punishments. This holding applies retroactively; in Penry v. Lynaugh, when the question was last before it, the Court recognized that a constitutional rule barring execution of the retarded would fall outside Teague v. Lane’s ban on retroactive application of new constitutional rules because it placed the ability to execute the retarded ‘beyond the State’s power.’”) (internal citation omitted).
[17]See Goodwin v. Steele, Nos. 14-3739, 14-3743, 2014 WL 11128597, at *2 (8th Cir. Dec. 9, 2014) (per curiam); In re Henry, 757 F.3d 1151, 1159-61 (11th Cir. 2014).
[18]Montgomery v. Louisiana, 136 S. Ct. 718, 728, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016) (internal quotations omitted); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“the Constitution places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”) (internal quotations omitted).
[19]Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012).
[20]State v. Mixon, 983 S.W.2d 661, 667 (Tenn. 1999)
[21]See Tenn. Code Ann. § 40-26-105; Tenn. Code Ann. § 27-7-102 & 103. It is not clear that the criminal coram nobis statute – which mentions neither factual errors nor a statute of limitations period – actually compels this result, but the Tennessee Supreme Court has held as much nonetheless.
[22] To the author’s knowledge, the Tennessee Supreme Court also has never opined on whether a legislative effort to limit the application of a common law judicial writ would violate the Tennessee Constitution’s separation of powers doctrine.
[23] The Court suggests that the answer is “yes,” however, holding that an earlier case containing language that suggested considerably broader coram nobis relief than the coram nobis statute provides “d[id] not provide the Petitioner with a common law remedy in coram nobis.”
[25]See, e.g., Shell v. State, 893 S.W.2d 416, 419 (Tenn. 1995) (“statutes affecting only the method or the procedure for prosecuting or defending a cause of action may be applied retroactively. A remedial or procedural statute is one that does not affect the vested rights or liabilities of the parties.”).
Concluding in Rye v. Women’s Care Ctr. of Memphis that the seven-year-old summary judgment standard established by the Tennessee Supreme Court in Hannan v. Alltel Publ’g Co. had proven to be “unworkable” and “functioned in practice to frustrate the purposes for which summary judgment was intended,” the Court has officially overruled Hannan effective immediately.[1] In its place, the Court “fully embrace[d]” the summary judgment standard that has been used in federal cases since 1986.[2]
The federal summary judgment standard empowers litigants to force their opponents to “put up [evidence] or shut up” before trial.[3] If, in response to a properly supported motion for summary judgment, the responding (“nonmoving”) party is unable to muster sufficient evidence to demonstrate that there is a genuine dispute of a material fact that requires a trial, then summary judgment must be granted in favor of the moving party. In contrast, under the prior Hannan standard, several courts had concluded that “it is not enough to rely on the nonmoving party’s lack of proof even . . . after the deadline for discovery ha[s] passed. Under Hannan, we are required to assume that the nonmoving party may still, by the time of trial, somehow come up with evidence to support [a] claim.”[4] After determining that this standard was “unworkable and inconsistent with the history and text of Tennessee Rule [of Civil Procedure] 56,”[5] a majority of the Court concluded that Hannan should be overruled.
In all likelihood,[6] the immediate effect of the Court’s decision in Rye will be to increase the number of cases that are decided at the summary judgment stage. Thus, fewer cases will end up going to trial and being decided by a jury, and litigants are less likely to settle claims. Helpfully, the Tennessee Supreme Court’s “full[] embrace” of the federal summary judgment standard also harmonizes state and federal civil procedure, and it finally settles an area of law that had created a substantial degree of confusion among both lower courts and the Justices of the Tennessee Supreme Court themselves.[7]Continue reading In its most consequential ruling of the year, Tennessee Supreme Court modifies Tennessee’s summary judgment standard, adopts federal “put up or shut up” rule.→
After being accused of sexually harassing a city clerk, Mr. David Young – then the city administrator for the City of LaFollette – was fired by a majority vote of the LaFollette City Council. Thereafter, Mr. Young sued the City in Circuit Court for retaliatory discharge under the Tennessee Public Protection Act.[1] In his complaint, Mr. Young requested a jury trial, which the City opposed. Ultimately, the dispute over whether Mr. Young was entitled to a jury trial was appealed to the Tennessee Supreme Court. After considering several disparate constitutional and statutory provisions, the court concluded that Mr. Young had neither a constitutional nor a statutory right to have his case tried by a jury, and thus, his request for a trial by jury was denied.
Initially, the City argued that the Government Tort Liability Act (GTLA) expressly precluded a right to trial by jury. The GTLA specifically states that claims brought under its provisions shall be tried “without the intervention of a jury.”[2] According to the court, however, the Tennessee Public Protection Act is “an independent statute which establishes its own rights and remedies apart from the procedures that apply under the GTLA.”[3] Thus, the GTLA’s prohibition against jury trials did not apply.
Separately, the Tennessee Constitution expressly includes a right to trial by jury. Specifically, Tenn. Const. art. I, § 6 provides that “the right of trial by jury shall remain inviolate[.]” Notwithstanding this apparent clarity, however, the Tennessee Supreme Court has held repeatedly that art. I, § 6 only provides a narrow right to trial by jury for claims that “existed at common law.”[4] Incongruously, in practical terms, this means that the Tennessee Constitution only guarantees a right to trial by jury for claims that existed “under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.”[5] In this particular case, because the Tennessee Public Protection Act “was enacted by the Tennessee Legislature in 1990, almost two hundred years after the adoption of the first Tennessee Constitution,” the court explained that art. I, § 6 did not apply to Mr. Young’s retaliatory discharge claim, either.[6]
The Supreme Court of Tennessee’s opinion in State v. Knowles presents an undeniably horrifying set of facts involving multiple allegations of rape of a young child. Considered apart from the outrageous crime involved, however, the legal issue presented in Knowles was fairly straightforward. In child sexual abuse cases where the jury has heard proof of more than one alleged instance of sexual misconduct, Tennessee law requires the prosecution to “elect” the particular offense for which it is seeking a conviction. The “election” requirement serves at least five separate purposes, although the majority’s opinion only mentions two of them.
First, the election requirement serves to “allow the State some latitude in the prosecution of criminal acts committed against young children who are frequently unable to identify a specific date on which a particular offense was committed.”[1] Second, it “preserve[s] a criminal defendant’s right under [Article I, Section 6 of] the state constitution to a unanimous jury verdict”[2] by ensuring that the jurors “deliberate over and render a verdict on the same offense.”[3] Additionally, however, as Justice Wade’s dissenting opinion reflects, the election requirement also: [3] “ensures that a defendant is able to prepare for and make a defense for a specific charge,” [4] “protects a defendant against double jeopardy by prohibiting retrial on the same specific charge,” and [5] “enables the trial court and the appellate courts to review the legal sufficiency of the evidence.”[4]
In this case, the prosecution misidentified the factual basis for the charged offense by mistakenly “electing” to submit an allegation to the jury that all parties agree did not occur. Specifically, the prosecution elected to allege that one particular sexual act had taken place, when in fact, the evidence clearly reflected that a different act occurred. Unfortunately, this mistake was perpetuated in the trial court’s instructions to the jury, which read, in pertinent part, that: Continue reading Tennessee Supreme Court Affirms Conviction Despite Prosecutor Submitting Wrong Allegation to Jury→