Constitutional Standards of Scrutiny and Using the First Amendment to Interpret the Second

Constitutional Law, Second Amendment, , , ,

By Daniel Horwitz:

In the wake of the U.S. Supreme Court’s landmark Second Amendment rulings in District of Columbia v. Heller and McDonald v. City of Chicago, lower courts have grappled with the appropriate standard of scrutiny to apply to Second Amendment claims. Respectively, Heller and McDonald held that the Second Amendment confers an individual right to keep and bear popularly-used firearms in one’s home, and that Second Amendment is applicable against both the states and the federal government alike.  However, neither case articulated a specific standard of scrutiny for evaluating Second Amendment claims.  As a consequence, the full scope of the right to bear arms — such as whether it applies outside the home, whether it applies to handguns alone, and whether it applies only for purposes of self-protection — remains unclear.

The “standard of scrutiny” applied to a particular claim is of critical legal importance and usually determines whether the claim will succeed.  Generally speaking, and simplifying matters considerably, courts use three different standards to adjudicate constitutional claims: (1) rational basis review; (2) intermediate scrutiny; (3) and strict scrutiny.

The first standard — rational basis review — is the most forgiving.  Under rational basis review, a litigant challenging a law on constitutional grounds “bear[s] the burden of proving that it does not bear a rational relation to any conceivably legitimate governmental purpose—even a hypothetical one.”  With vanishingly few exceptions, nearly all laws satisfy this standard.

The second standard, known as “intermediate scrutiny,” raises the stakes considerably.  Under intermediate scrutiny,  the burden shifts to the government to justify the law at issue.  Under this standard — which is used, among other things, to evaluate classifications based on gender — a law “must serve important governmental objectives, and . . . the discriminatory means employed must be substantially related to the achievement of those objectives.”  Further, the government “must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification” at issue.

The third standard of review, which is the most rigorous, is “strict scrutiny.”  Under strict scrutiny, “the government must prove that the challenged law is both narrowly tailored and the least-restrictive means available to further a compelling governmental interest.”  Strict scrutiny applies in areas such as racial and religious discrimination, and it also applies to many claims involving free speech.

After Heller, several competing theories were presented concerning which standard of scrutiny should apply to Second Amendment claims.  For example, one prominent scholar suggested that “courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms,” and proposed that courts apply a different standard depending on the specific justification presented.  Another theorized that courts would adopt the separate “undue burden” standard that is used to evaluate abortion restrictions.  As this author noted back in 2012, though, in light of Heller‘s undefined standard of scrutiny and its expansive language approving certain “longstanding prohibitions on the possession of firearms,” “the post-Heller world has not turned out nearly as well as gun advocates had hoped.”  Instead, “by January 2, 2009, lower courts had issued rulings on all manner of gun control regulations, and . . . the scoreboard was ‘Gun Control 60, Individual Right 0.’”

Since 2012, however, a few courts have starkly deviated from this practice.  For example, in a recent February 4, 2016 opinion that could have significant nationwide consequences, the U.S. Court of Appeals for the Fourth Circuit held that certain category-based “firearms and magazine bans require strict scrutiny.”  Interestingly, the Fourth Circuit’s opinion on the matter also closely mirrors the standard of review analysis that is commonly employed in the realm of the First Amendment.

Notably, one author — First Amendment scholar David Hudson, who is an occasional guest contributor to this blog —  predicted that this might happen.  For example, in a 2012 article entitled “Turning to the First to understand the Second,” Professor Hudson anticipated that in determining the appropriate standard of scrutiny for Second Amendment claims, “many courts will refer to First Amendment free-speech law and its use of different standards of review.  In other words, judges will use the First to understand the Second.”   His most recent article on the matter — “A Continuing Trend: Using the First to Interpret the Second” — further explores this trend.  It is reposted below with permission:

___________________________________________________________________________

Re-Posted Upon Request From The Newseum Institute:  See more at: http://www.newseuminstitute.org/2016/02/16/a-continuing-trend-using-the-first-to-interpret-the-second/

By David L. Hudson, Jr.: 

The 4th U.S. Circuit Court of Appeals recently used an analogy to First Amendment free-speech law in upholding a Second Amendment challenge and striking down a Maryland law banning semi-automatic rifles and larger-capacity detachable magazines.

In Kolbe v. Hogan, a divided 4th Circuit panel noted that the Maryland law imposed a near complete ban on these semi-automatic rifles and larger magazines. The appeals court analogized to the First Amendment principle that bans on entire mediums of speech are constitutionally suspect.

The U.S. Supreme Court identified this principle in City of Ladue v. Gilleo (1994), a case involving a ban on yard signs. “Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression,” the Court explained in the yard-sign case.

The 4th Circuit majority adopted this rationale in interpreting the Second Amendment right to “keep and bear arms,” writing that Maryland’s law banning semi-automatic rifles was “akin” to a law that bans an entire medium of speech.

Courts have examined and developed, over nearly a 100-year period, a complex and intricate body of First Amendment law. However, Second Amendment law is in its nascent phase. The U.S. Supreme Court did not rule that the Second Amendment right to “keep and bear arms” was an individual right until 2008 and it didn’t rule that this principle applied to state and local governments until 2010.

Sometimes, though, courts have used this First-Second connection to reject gun claims. For example, courts have reasoned that just as the First Amendment doesn’t protect all forms of speech, the Second Amendment doesn’t give one an unqualified right to possess any kind of weapon.

David L. Hudson, Jr. is the Ombudsman for the Newseum Institute First Amendment Center. He is the author of Let The Students Speak!: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011) and Teen Legal Rights.

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Questions about this article?  Email Daniel Horwitz at [email protected].

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Tennessee Supreme Court: If you commit any minor driving infraction in Tennessee, you can be pulled over. Also, you’re a criminal.

Constitutional Law, Fourth Amendment, , ,

By Daniel Horwitz:

Tennessee drivers beware:  stray outside your lane – even an inch, and even for just a moment – and you’re subject to being seized and arrested by law enforcement.  Also, you’ve just committed a crime that can land you in jail for up to a month.

In a pair of companion cases handed down by the Tennessee Supreme Court on Thursday afternoon, the Court observes that “[o]ur legislature has chosen to criminalize the common driving infraction” of crossing lane lines.  Moreover, the Court explains, the fact that “drivers in Tennessee [] cross lane lines ‘all the time’” makes no difference.  No matter how minor the offense, if you’re suspected of having committed any driving infraction of any kind anywhere in the state, then neither the Fourth Amendment nor the Tennessee Constitution will protect you.

These holdings – surprising as they may seem – actually bring Tennessee law in line with the overwhelming majority of jurisdictions that have analyzed the issue over the past twenty years.  In 1996, the United States Supreme Court handed down a controversial – though unanimous – Fourth Amendment decision in Whren v. United States, 517 U.S. 806, 819 (1996).  Authored by the late Supreme Court Justice Antonin Scalia, Whren involved a police seizure for a minor traffic offense that had every appearance of being pretextual.  Although there was strong reason to believe that the real reason why the driver had been stopped was because he was suspected of carrying drugs, the Supreme Court held without equivocation that an officer’s subjective reasons for pulling someone over do not matter.  Simply stated, if police officers “ha[ve] probable cause to believe that [a driver has] violated the traffic code,” then that fact alone “render[s] the stop reasonable under the Fourth Amendment.”

The Tennessee Supreme Court’s decisions in State v. Smith and State v. Davis represent straightforward extensions of this holding, although their potential for abuse is frightening.  Both cases involved drivers who were pulled over for momentarily crossing over lane lines.  On December 6, 2012, after being followed by a trooper without incident for approximately two-and-a-half miles, Defendant Linzey Smith was pulled over for “cross[ing] the fog line ‘by less than six inches’” as she negotiated a winding, sloping portion of a roadway.  Similarly, on October 23, 2009, Defendant William Davis, Jr. was pulled over after his car’s two left wheels briefly drifted over the double yellow line splitting a two-lane road.  After being pulled over, both drivers exhibited signs of intoxication, and each was ultimately arrested for DUI.

The question presented in both cases was whether law enforcement had the requisite level of suspicion to pull the drivers over in the first place.  Both the Fourth Amendment and Article I, Section 7 of the Tennessee Constitution protect individuals from unreasonable seizures.  There is also no doubt – at least in theory – that “an individual does not lose her constitutional rights against unreasonable seizures by driving a car.”[1]  Further, longstanding caselaw establishes that “[a] police officer seizes a motorist when he turns on his blue lights in order to pull the motorist over.”[2]  As a result, every traffic stop implicates an individual’s rights under the Fourth Amendment and the Tennessee Constitution, and all traffic stops must be justified by a minimum level of suspicion.

Generally speaking, two separate types of seizures are permitted under the Constitution.  If law enforcement has probable cause to believe that an individual has committed a crime, then an officer may make a full-scale custodial arrest.  Alternatively, if law enforcement has reasonable suspicion to believe that a criminal offense has been or is about to be committed, then an officer may initiate a brief investigatory stop to investigate the matter further.[3]

Notably, “[t]he level of reasonable suspicion required to support an investigatory stop is lower than that required for probable cause.”[4]  Although non-technical and imprecise, federal judges estimate probable cause and reasonable suspicion to reflect certainty levels of roughly 45% and 31%, respectively.[5]  However, both types of seizures must be justified by specific, articulable facts.

Tennessee law provides that crossing over a lane line even momentarily is a Class C misdemeanor that is punishable by up to 30 days in jail and a $50.00 fine.[6]  Consequently, because the troopers in both Smith and Davis had at least reasonable suspicion to believe that the drivers had strayed from their lanes, the Tennessee Supreme Court held that in each instance, the traffic stops were constitutionally permissible.  The Court also reiterated, however, that “slight weaving within one’s lane ordinarily will not support a stop under any standard.”[7]

In this regard, the Court’s holdings in Smith and Davis are unremarkable.  Broadly considered, they simply reflect the U.S. Supreme Court’s now routine indication that: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”[8]  What is concerning, however, is their profound potential for abuse.

In affirming the legality of the stops at issue, the Tennessee Supreme Court candidly acknowledged the reality that nearly all drivers constantly deviate from their lanes.  “We are confident that drivers in Tennessee [] cross lane lines ‘all the time,’” Justice Bivins’ unanimous opinion declares.  Given this state of affairs, however, it is now a fact of life that virtually any driver in Tennessee can be stopped and jailed anywhere and at any time simply on an officer’s whim for no reason other than that it is impossible to drive perfectly within one’s lane at all times.[9]  Additionally, although the Court went to great lengths to caution that its holdings were “not intended to provide law enforcement officers with ‘carte blanche’ to seize motorists every time they see a vehicle cross a [lane] line,” as a matter of practical reality, they do just that.

Any number of commentators have expressed serious reservations about this development in constitutional jurisprudence.  Perhaps most troublingly, giving police nearly unchecked authority to seize any driver, anywhere, at any time is eerily reminiscent of the “general warrants” that were abused by the British during the pre-revolutionary period—abuses which gave rise to the very existence of the Fourth Amendment itself.[10]  Moreover, Justice Bivins’ observation that “an officer has discretion as to when to stop drivers” – and his additional efforts to emphasize that “[w]e do not mean to require or imply that a stop should be made in all such instances” – should provide Tennesseans little comfort.  If past is prologue, affording all law enforcement officers virtually unfettered discretion to stop, search and arrest any Tennessee driver anywhere and at any time is all but guaranteed to lead to profound abuse of authority and disproportionate enforcement against marginalized groups.  In particular, poor minorities will continue to bear the brunt of minor traffic stops—often for purely pretextual reasons—while whiter, wealthier drivers remain unmolested.  For obvious reasons, to those unlucky few who do not receive the benefit of an officer’s benevolent discretion not to pull them over every time they cross over a lane line, the Tennessee Supreme Court’s efforts to mollify the vast scope of its holdings will be of vanishingly small consolation.

Click to read the Tennessee Supreme Court’s unanimous opinions in State v. Smith and State v. Davis.

Questions about this article?  Email Daniel Horwitz at [email protected].

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[1] See Delaware v. Prouse, 440 U.S. 648, 662-63 (1979).

[2] See State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).

[3] State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968)).

[4] State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008).

[5] See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 Vand. L. Rev. 1293, 1325-28 (1982).

[6] See generally Tenn. Code Ann. § 55-8-103 (2008) (“It is unlawful and, unless otherwise declared in this chapter and chapter 10, parts 1-5 of this title with respect to particular offenses, it is a Class C misdemeanor, for any person to do any act forbidden or fail to perform any act required in this chapter and chapter 10 of this title.”); Tenn. Code Ann. § 55-8-123(1) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety;”); Tenn. Code Ann. § 40-35-111(e) (“The authorized terms of imprisonment and fines for misdemeanors are: . . .  (3) Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both, unless otherwise provided by statute.”).

[7] In this regard, the Court reaffirmed its prior holding in State v. Binette, 33 S.W.3d 215, 219-20 (Tenn. 2000).

[8] Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549 (2001).

[9] Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 TEMP. L. REv. 221, 252-73 (1989).

[10] See id.  See also Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev. 1413, 1413 (Spring, 2013) (“[o]ur streets and highways have become a police state where officers have virtually unchecked discretion about which cars to stop for the myriad of traffic offenses contained in state statutes and municipal ordinances”); David A. Moran, The New Fourth Amendment Vehicle Doctrine: Stop and Search Any Car at Any Time, 47 Vill. L. Rev. 815, 816 (2002) (“the police may, in their discretion, stop and search any vehicle at any time”); Elizabeth Ahern Wells, Note, Warrantless Traffic Stops: A Suspension of Constitutional Guarantees in Post September 11th America, 34 U. Tol. L. Rev. 899, 899 (Summer, 2003) (stating that traffic stops have “evolved into a veritable green light for police officers, resulting in a complete disregard for personal security”).

AGREEMENT REACHED IN MASS EXPUNGEMENT LAWSUIT

Expungement

Nashville citizens win the right to file expungement petitions offsite.

More than 128,000 Nashville residents stand to benefit from an agreement reached late Wednesday afternoon in a lawsuit that sought to help citizens who were arrested but never convicted of a crime clear their names.  The lawsuit aimed to ease filing requirements for criminal record expungement, which is a legal process that results in a person’s public criminal records being removed and destroyed.

Among other things, the expungement process allows people who have been wrongfully arrested to avoid being subjected to legalized discrimination in employment, housing, and educational opportunities.  “Consequences for criminal activity should be reserved for those who are guilty,” Davidson County District Attorney General Glenn Funk has explained.  Once an expungement petition has been processed, expunged records no longer appear on a public background check.

Currently, Tennessee law provides that anyone who has been arrested for a crime but never found guilty of it is eligible to have his or her arrest records expunged free of charge.  However, a persistent problem for many poor people who are eligible for expungement is that they are physically required to come down to the clerk’s office and file the necessary paperwork in person.  Unfortunately, for those who lack access to transportation, who can’t afford to take a day off of work, or who live out of town, this requirement has effectively become an insurmountable burden.  For example, in just a single court in Nashville in a single decade alone, more than 128,000 people with a combined 350,000 separate case records that were either dismissed or never prosecuted in the first place have not had their statutory right to expungement vindicated.

In September 2015, attorneys Daniel Horwitz and James Danly filed a lawsuit on behalf of three petitioners seeking to ease requirements for filing expungement petitions.  Among their demands was that eligible individuals be permitted to file expungement petitions by mail, rather than having to do so in person.

On Wednesday, attorneys representing state and local government agencies agreed to allow this reform to be implemented.  “This common sense reform will finally allow thousands of innocent people to access a legal right that has remained frustratingly out of reach for those without means,” said Horwitz.  Once Wednesday’s reform takes effect, eligible individuals will be permitted to file for expungement by mailing a notarized expungement petition to the Davidson County Criminal Court Clerk.

The reform also comes shortly after two bills modeled after the petitioners’ lawsuit that would expand access to the expungement process statewide were introduced in the state legislature.  The first bill, sponsored by Senator Steve Dickerson (R-Nashville) and Representative Harold Love (D-Nashville), would require courts to order that all dismissed case records be expunged “without further action by the person charged” within two years of the date of dismissal.  The second bill, sponsored by Senator Sara Kyle (D-Memphis) and Representative Jason Powell (D-Nashville), would further ease filing requirements by permitting eligible individuals to file expungement petitions online.

“Our efforts to ensure that poor Tennesseans enjoy meaningful access to the expungement process took a very important step forward today,” said Horwitz.   “We’re extremely encouraged by the overwhelming, bipartisan support for reform that this lawsuit has generated, and we’ll continue fighting to ensure that the expungement process becomes accessible to the hundreds of thousands of people who have previously been allowed to fall through its cracks.”

Additional information about the expungement process can be found at: www.ExpungementNashville.com

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You know that state law that prohibits cities in Tennessee from raising the minimum wage? It doesn’t.

Employment Law,

By Daniel Horwitz:

“I firmly believe that we should have a wage that reflects what it really requires to live here [in Nashville] and that’s a [$9.51/hour] living wage,” then-candidate Megan Barry proclaimed last January during her campaign for Mayor.  A few months later, her opponent, Bill Freeman, one-upped her.  “I want to increase the minimum wage one dollar at a time, one year at a time, until we reach a $12 per hour minimum wage in Davidson County,” he announced, even airing a TV spot on the issue.  “It’s long past time, and it’s the right thing to do.”

Raising the minimum wage is perhaps the single most popular economic policy proposal that exists in the United States today.  According to recent polling on the issue, fully 92% of Democrats, 73% of Independents, and 53% of Republicans support raising the minimum wage from its current rate of $7.25 per hour to $12.50 per hour by 2020.  Broadly considered: “Americans, regardless of region, socioeconomic status, or demographic distinction, strongly favor a very significant increase in the federal minimum wage,” pollster Guy Molyneux has explained.

In Tennessee, local support for raising the minimum wage is similarly palpable.  As noted, Nashville Mayor Megan Barry has stated that she supports doing so.  So, too, have several local officials in Chattanooga.  Memphis officials have publicly supported a citywide minimum wage increase as well.  Much to their chagrin, however, all agree that one major obstacle prevents them from carrying out their best laid plans: A 2013 state law that prohibits municipalities from raising the minimum wage above the federal baseline.

The unanimity of agreement on this point is striking.  “Tennessee Code Annotated 50-2-112, restricts municipalities from setting a wage minimum above the state and federal minimums for companies with which it contracts,” explains the Times Free Press.  “State law could thwart Councilman Lowery’s effort to boost Memphis minimum wage,” concurs the Commercial Appeal.  And even as a candidate, Bill Freeman conceded the point.  “[T]he Freeman campaign says [raising the minimum wage] would require the repeal of a statute enacted in 2013 that bans cities from requiring that contractors and vendors pay more than what’s required by federal law,” the Tennessean explained.

The only problem with this analysis is that it’s wrong.  In pertinent part, the 2013 law at issue actually provides as follows:

“Notwithstanding any charter, ordinance or resolution to the contrary, no local government, as a condition of doing business within the jurisdictional boundaries of the local government or contracting with the local government, has the authority to require a private employer to pay its employees a [sic] hourly wage in excess of the minimum hourly wage required to be paid by such employer under applicable federal or state law.”[1]

To the discerning reader, this law contains a loophole (bolded above) large enough that a mack truck could drive through it sideways.  Notice, specifically, how the law does not impose a categorical ban on a local minimum wage increase.  Had the legislature wished to accomplish that result, then the law would have (or should have) looked like this:

“Notwithstanding any charter, ordinance or resolution to the contrary, no local government has the authority to require a private employer to pay its employees an hourly wage in excess of the minimum hourly wage required to be paid by such employer under applicable federal or state law.”

Instead, the restriction contained in Tenn. Code Ann. § 50-2-112(a)(1) is significantly qualified.  Under the express terms of its qualifier, nothing prevents a local government from raising the minimum wage so long as a private employer’s compliance with the local minimum wage increase is not required either: (1) “as a condition of doing business within the jurisdictional boundaries of the local government,” or (2) “as a condition of . . . contracting with the local government.”  Imposing any other condition on a private employer for failing to comply with a minimum wage increase, however, is fair game.  Thus, giving a company the option of either complying with a minimum wage increase or being met with some other type of condition (a higher licensing fee, a monetary penalty, a higher tax assessment, etc.) would not run afoul of Tenn. Code Ann. § 50-2-112(a)(1)’s limitations in any way.

In other words:  If, for example, a company were forced to pay a monetary penalty for failing to comply with a local minimum wage increase—rather than being denied the right to do business or to contract with the local government—then there would be no conflict with Tenn. Code Ann. § 50-2-112(a)(1).  In fact, that’s largely the way that the federal minimum wage law works.  Under the Fair Labor Standards Act—which imposes a $7.25 per hour minimum wage on most businesses—a business that fails to pay its employees a $7.25 per hour minimum wage is (among other things) subject to a civil monetary penalty of up to $1,100 for each violation.[2]

As a result, any city in Tennessee can mandate a local minimum wage increase tomorrow without fear.  So long as the penalty for non-compliance isn’t denial of a business’s right to operate or to contract with the city, a local minimum wage increase would not be preempted.

The propriety of increasing the minimum wage, of course, is a separate issue.  Economists disagree on whether increasing the minimum wage benefits the working poor.[3]  Additionally, legislators have several other proven anti-poverty tools—such as reducing reliance on regressive sales taxes and expanding the Earned Income Tax Credit—available at their disposal that ought to be considered as well.  Whether municipalities in Tennessee are categorically prohibited from enacting a minimum wage law, however, is a far different question.  They are not.

Questions about this article?  Email Daniel Horwitz at [email protected].

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[1] Tenn. Code Ann. § 50-2-112(a)(1) (emphasis added).

[2] See 29 U.S.C.A. § 216 (“Any person who repeatedly or willfully violates section 206 or 207, relating to wages, shall be subject to a civil penalty not to exceed $1,100 for each such violation.”).

[3] Compare Economist Statement on the Federal Minimum Wage, Over 600 Economists Sign Letter In Support of $10.10 Minimum Wage, Economic Policy Institute, Jan. 14, 2014, available at http://www.epi.org/minimum-wage-statement/, with Richard V. Burkhauser and Joseph J. Sabia, Why Raising the Minimum Wage Is a Poor Way to Help the Working Poor:  An Analysis of Senators Kerry and Kennedy’s Minimum Wage Proposal, Employment Policies Institute, July 2004, available at https://www.epionline.org/wp-content/studies/burkhauser_07-2004.pdf.

The law protects victims of sexual harassment and domestic violence, even when elected officials do not.

Employment Law, Family Law, Tort Law, ,

By Daniel Horwitz:

The past week has been a terrible one for victims of sexual harassment and domestic violence.  Two high profile scandals—both involving elected officials—suggest that any number of Tennessee’s politicians have no qualms about leveraging their positions of power to harass, abuse and intimidate women.  The first scandal involves allegations that State Representative Jeremy Durham—a member of the Republican leadership until just a few days ago—sexually harassed legislative staff and interns repeatedly and without hesitation.  The second involves allegations that Nashville Metro Councilmember Loniel Greene—who resigned his seat last night effective immediately—used his position as a public official to intimidate a victim of domestic violence.  According to a recorded phone call, Greene threatened a woman who had reported a domestic violence incident, stating:  “Bitch, I’m smarter than you.  You try to play the system, motherfucker I am the system.”  After stating that “she’s going to have to be shut down,” Councilman Greene then “work[ed] on” the alleged victim in an attempt to silence her.

The response to these allegations from other elected officials was tepid at best.  For example, in an utterly tone-deaf statement that placed responsibility for Representative Durham’s alleged sexual harassment squarely on the shoulders of those who were believed to have been the victims of it, House Speaker Beth Harwell announced that: “I have instructed the Director of the Internship program that interns are not to attend receptions or events related to the legislature, and they are not to give their cell phone numbers to members.”  The response to Councilman Greene’s scandal was similarly listless.  Prior to his resignation, exactly two out of forty total Metro Councilmembers—Councilman Bob Mendes and Councilman Jeremy Elrod—condemned the allegations, while the Mayor suggested that Councilman Greene should consider resigning because the allegations could “becom[e] a distraction.”

In sharp contrast, however, the response by women’s advocates was considerably more pointed.  Said Pat Shea, CEO of the YWCA of Nashville & Middle Tennessee[1]:

“The YWCA of Nashville & Middle Tennessee is appalled at news accounts of a current domestic violence case involving a newly elected Metro Councilman.  How is it that persons in positions of power in Nashville are able to misuse that power to silence victims?  How is it that processes, put in place to protect victims, are not followed?  These patriarchal behaviors raise serious questions about whether we are able to trust the systems set up to protect victims.

As advocates, we are constantly asked ‘why women do not report abuse; why women will not prosecute; why women cannot just leave.’  This recent high profile incident provides a perfect example of why victims don’t, won’t, and can’t.  We want Nashville to be a place where all of our leaders work to make Nashville safer for victims of domestic violence, not more dangerous. ”

Added Sara Beth Myers of AWAKE (Advocates for Women’s and Kids’ Equality):

“Tennesseans should be confident in our laws that protect victims of harassment both in the civil and criminal context. The offices of our state and local elected officials should be paragons of professionalism and transparency, setting an example for every other workplace in Tennessee. In a state in which women are so underrepresented in our legislature, lawmakers and policymakers should be especially deliberate about interacting with their female colleagues both legally and respectfully. The past week’s events revealed a situation in our government that we should all deem unacceptable.”

The presumption of innocence is obviously of paramount importance and should not be discounted.  As such, pending the outcome of formal legal proceedings against Representative Durham and former Councilman Greene, those who have resisted making public condemnations are entitled to the benefit of the doubt.  Elected officials’ collective disregard for the alleged victims of these incidents, however, is far more difficult to explain.  Protecting victims of harassment and domestic violence and protecting the presumption of innocence are not incompatible concepts.  A legal system that fails to do both at once holds little value.

To be absolutely clear at a time when too many elected officials haven’t been: victims are not responsible for being sexually harassed, beaten, or intimidated.  Sexual harassment is illegal.  Domestic violence is illegal.  Intimidating a victim of domestic violence is illegal.  Retaliating against a victim who reports being abused is illegal.  All such acts are despicable.  None should ever be tolerated.

The law protects victims of harassment, violence and abuse.  If you have been victimized, resources are available to help you.  If you’re in danger, you can reach the YWCA’s 24-hour crisis and information line at (615) 242-1199 or toll free 1-800-334-4628.  The Legal Aid Society of Middle Tennessee and the Cumberlands has free lawyers available to help those who have been victims of domestic violence, including providing free divorce services and helping victims obtain orders of protection.  The District Attorney’s Office has a Victim Witness Services Division that is exclusively dedicated to helping victims navigate the legal system.  The Tennessee Coalition to End Domestic and Sexual Violence makes a multitude of free resources available to victims of domestic violence and sexual abuse.  Many employment lawyers, although they are not free, will take sexual harassment cases on a contingency basis.  All of these resources exist to help empower victims and stop the cycle of abuse.

It is also important to shed light on the many existing policy shortcomings that need fixing.  Although late in coming, legislative leaders have already acknowledged that the General Assembly’s current sexual harassment policy needs to be overhauled, because “staffers and others who are regularly at the Capitol do not feel comfortable coming forward.”  Sadly, the same is often true of the criminal justice system.  In many instances, for example, the names of victims of domestic and sexual violence are made publicly accessible on arrest warrants, which discourages a significant number of victims from reporting.  There is also a pending dispute in the Tennessee Supreme Court over whether victims’ private, personal information becomes a public record under Tennessee law once their records have been turned over to law enforcement.  On behalf of several domestic and sexual violence prevention advocates who participated in the case as amici curiae, the author has argued that it does not, but the Tennessee Supreme Court will have the final say.  Additionally, the legislature’s failure to adapt to modern forms of harassment has left a void in victims’ protection against abuses such as non-consensual pornography—otherwise known as “revenge porn”—and harassment via electronic media, such as text messages and facebook.

These shortcomings certainly need to be corrected.  While that happens, however, don’t wait.  The law protects victims of sexual harassment and domestic violence, even when elected officials do not.  If you need help, help is available.

Questions about this article?  Email Daniel Horwitz at [email protected].

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[1] In the interest of full disclosure, the author is a member of the YWCA’s Board of Directors.

Yes, you may legally vote in another party’s primary under Tennessee law.

Constitutional Law, Election Law, First Amendment, , ,

By Daniel Horwitz:

It’s election season!  In addition to junk mail and jingles, if there’s anything that’s absolutely guaranteed to take place in Tennessee this time of year, it’s an unresolved dispute over whether or not it’s illegal to vote in another party’s primary election.  So is it?

According to the Bernie Sanders campaign, whether you’re a Democrat or not, voting in the Democratic primary is legal.  “Tennessee has open primaries.  Tennesseans can vote for Bernie Sanders regardless of their registered party,” his website declares.  In sharp contrast, however, during several past election cycles, others have taken a markedly different view.  In May 2014, for example, Maury County’s Election Commission formally censured one of its Democratic members for voting in the local Republican Primary.  “Contrary to many public pronouncements by various people, a party primary is not open to anyone to come and essentially make a mockery of the process,” proclaimed Commission member Jason Whatley.  “People who disagree with that are disagreeing with the law and they’re demonstrating a gross misunderstanding of what the law says.”[1]

Despite protestations from many in Commissioner Whatley’s camp, however, the reality of Tennessee law is quite different.  Specifically, unless your party membership has been formally challenged under an obscure procedure that is virtually never utilized, voting in the primary election of a party with which you are not typically affiliated is not illegal at all.  The reasons why, however, require considerable explanation.

In the election law world, the practice of voting in the primary election of a party with which a voter is not traditionally affiliated is known as “crossover voting.”  Alternately considered insidious or a laudable expansion of democracy depending on who is benefiting from it, voters frequently engage in crossover voting for any number of reasons.  For example, a Republican voter might be so disgusted with her party’s candidates in a particular election that she decides to affiliate with the Democratic Party for a single election cycle instead.  Other voters—particularly those who live in highly gerrymandered districts—might vote in an opposing party’s primary in order to exert meaningful influence (called “hedging”) in the ultimate selection of their representatives, given that the winner of the opposing party’s primary is likely—or, in many cases, guaranteed—to win the general election down the road.[2]  Alternatively, a Democratic voter might try to bolster his party’s chances of winning a general election by crossing over and voting for a weak Republican primary candidate who is comparatively less likely to prevail against his Democratic candidate of choice—a tactic known as “raiding.”[3]

With respect to this latter tactic, it’s worth noting that supporters of both parties have a rich history of organizing “crossover raiding” drives in an attempt to sabotage their opponents’ chances of winning a general election victory.  In 2012, for example, in an effort to bolster Rick Santorum’s chances of becoming the Republican nominee for President over Mitt Romney, liberal activist Markos Moulitsas generated national media attention by encouraging Democrats to crossover to the Republican Primary and vote for Santorum.[4]  Similarly, in 2008, conservative talk radio host Rush Limbaugh encouraged Republicans to crossover and vote for Hillary Clinton in their respective states’ Democratic primaries when then-Senator Barack Obama began surging ahead in the polls.[5]  Although neither of these efforts turned out to be effective, successful crossover raiding has been blamed for primary victories of candidates in any number of elections, including Presidential primary victories in Michigan by George Wallace, Jesse Jackson and John McCain.[6]  A successful crossover voting campaign was also given credit, in part, for the controversial 2008 primary victory of former Tennessee State Senator Rosalind Kurita over challenger Tim Barnes,[7] which was ultimately vacated under internal party procedures by the Tennessee Democratic Party.[8]

Unsurprisingly, in the roughly fifteen states where voters are not required to declare their party affiliation in order to vote in a particular party’s primary, crossover voting is simple, and it is unquestionably legal.  To crossover, a voter in such an “open primary” state need only show up on election day and ask to vote in her primary of choice.  The voter will then be given the opportunity to cast her vote in that party’s primary with no questions asked.

In other states, however, voters are prevented (or, at least, hindered) from engaging in crossover voting because the states hold “closed primaries.”  In closed primaries, only voters who are expressly affiliated with a particular party may vote in that party’s primary elections.  In several jurisdictions—Kentucky, for example—this affiliation requirement effectively eliminates crossover voting because in order to vote in a party’s primary, a voter must be pre-registered with the party long before voting begins.[9]  In other closed primary states, however—Iowa, for instance—the affiliation requirement is effectively meaningless, because voters are permitted to change their party affiliation up until and even on election day itself.[10]

Tennessee falls into the latter category—a technically closed primary state, but one in which the party affiliation requirement exists only in theory.  To start, Tennessee law does not impose any registration requirement on voters whatsoever.  In fact, there is no such thing as party registration in Tennessee.  Instead, the only affiliation requirement contained in Tennessee law is found in Tenn. Code Ann. § 2-7-115(b), which provides that:

“A registered voter is entitled to vote in a primary election . . .  if:

(1) The voter is a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote; or

(2) At the time the voter seeks to vote, the voter declares allegiance to the political party in whose primary the voter seeks to vote and states that the voter intends to affiliate with that party.”

“A bona fide member” of a political party?  “Declares allegiance”?  What do these things even mean?  Additionally, who decides whether someone is a bona fide member of a political party or not?  And how are these requirements even enforced, anyway?

The broad answer to each of these questions is that it’s entirely up to the parties themselves.  Political parties are private organizations.  Accordingly, they enjoy an unquestioned First Amendment right to decide their own membership criteria and to exclude or include anyone they see fit.  See, e.g., Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1188 (2008) (“a party’s right to exclude is central to its freedom of association.”); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981) (“the freedom to associate for the common advancement of political beliefs necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.”) (internal quotation omitted); California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (“our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selects a standard bearer . . . .”) (internal quotations and alterations omitted).   As such, the definition of a “bona fide” member of a particular political party is left exclusively to political parties themselves.[11]

Notably, given this framework, it is also possible to be a bona fide member of both the Democratic Party and the Republican Party (or any other political party) at the same time.  In fact, although Tennessee law prohibits candidates from appearing on the ballot under two separate parties, history offers multiple examples of the same candidate being selected as the nominee of more than one party in the same election—a practice known as “electoral fusion.”  For example, in 1946, future U.S. Supreme Court Justice Earl Warren—who was then the incumbent Governor of California—became the only gubernatorial candidate in California’s history to win both the Republican and Democratic nominations for the state’s governorship.[12]  As such, the fact that a person is considered a “bona fide” Republican by the Tennessee Republican Party does not necessarily foreclose that person from being considered a “bona fide” Democrat by the Tennessee Democratic Party as well.  For precisely the same reason, there would be nothing untoward about a traditionally Republican voter seeking to vote in the Conservative Party’s primary, or a traditionally Democratic voter seeking to vote in the Green Party’s primary.

It is for these reasons that several public officials have erred so substantially in concluding that an individual who traditionally affiliates with one party cannot lawfully attempt to affiliate with another by voting in its primary.[13]  For one thing, public officials have absolutely no authority to determine party membership—only parties do.  For another, affiliating with one political party does not categorically preclude a voter from affiliating with another, since political parties are not necessarily incompatible with one another.  All contrary conclusions reflect a fundamental misunderstanding of the First Amendment as it applies to political parties’ freedom of association.

Enforcement of Bona Fide Party Membership

As noted, however, the Supreme Court has recognized that the First Amendment’s right to freedom of association affords political parties the right to exclude voters from voting in their primaries as well.  See, e.g., La Follette, 450 U.S. at 122 (“the inclusion of persons unaffiliated with a political party may seriously distort its collective decisions—thus impairing the party’s essential functions—and [] political parties may accordingly protect themselves from intrusion by those with adverse political principles.”) (internal quotation omitted).  Accordingly, any political party is well within its rights to exclude a voter from its membership, thus rendering the voter ineligible to participate in the party’s primary.

Under Tennessee law, however, the only mechanism for enforcing political parties’ right to exclude voters from participating in their primaries is found in Tenn. Code Ann. § 2-7-126, which provides that:

“A person offering to vote in a primary may . . . be challenged on the ground that the person is not qualified under § 2-7-115(b).  Such a challenge shall be disposed of under the procedure of §§ 2-7-123 — 2-7-125 by the judge or judges and the other election officials of the party in whose primary the voter applied to vote, with a total of three (3) to decide the challenge.”

In turn, the highly complicated (and practically useless[14]) procedure found in §§ 2-7-123 — 2-7-125 provides that:

“If any person’s right to vote is challenged by any other person present at the polling place, the judges shall present the challenge to the person and decide the challenge after administering the following oath to the challenged voter: “I swear (affirm) that I will give true answers to questions asked about my right to vote in the election I have applied to vote in.”  A person who refuses to take the oath may not vote.

. . . .

The judges may ask any question which is material to deciding the challenge and may put under oath and ask questions of such persons as they deem necessary to their decision. The judges shall ask the administrator of elections to check the original permanent registration records if the voter claims to be registered but has no duplicate permanent registration record.

. . . .

(a) If the judges determine unanimously that the person is not entitled to vote, the person shall vote by paper ballot and the person’s ballot shall be deposited in a sealed envelope marked “Rejected” with the person’s name, the reason for rejection, and the signatures of the judges written on it.

(b) If the judges do not agree unanimously to rejection, the person shall be permitted to vote as if unchallenged.”

Thus, in order to prevent a prospective voter from voting in a party’s primary, the voter must:

  1. Be recognized by a Party “challenger” before casting a vote;
  2. Be challenged on the spot; and
  3. Have that challenge adjudicated unanimously by three previously-appointed Party judges.[15]

Then—but only then—could it conceivably become illegal for a voter to attempt to vote in a particular party’s primary.[16]  For obvious reasons, however—namely, that it is impossible and economically infeasible to carry out party purity challenges across the state in primary elections during which several hundred thousand (or more) votes are often cast—this process simply does not occur in nature.  As such, in practice, nothing prevents a traditionally Democratic voter from voting in the Republican Party’s primary or vice versa.  Under Tennessee law, such a practice—whether pursued for nefarious reasons or otherwise—is perfectly legal unless and until the voter’s right to participate has specifically been challenged by a party official and formally adjudicated against her.

Questions about this article?  Email Daniel Horwitz at [email protected].

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[1] This particular incident also prompted State Election Coordinator Mark Goins to send a threatening letter – illegally, in the author’s view – to all 475 county Election Commissioners indicating that “they will be subject to removal by the State Election Commission” if they vote in another party’s primary.  See Andy Sher, Tennessee’s county election commissioners can only vote in their party’s primary, Times Free Press (Jul. 28, 2014), http://www.timesfreepress.com/news/local/story/2014/jul/28/county-election-commissioners-can-only-vote-in/262916/.  At the time, at least one attorney spoke out against the policy to note – correctly, in the author’s view – that such a threat violated the First Amendment.  Id. (“the state’s new directive is already coming under fire from Chattanooga attorney Jerry Summers, a Democratic member on the Hamilton County Election Commission.  Summers said Saturday in an interview that he doesn’t believe the state’s order passes muster under federal guarantees of free speech and assembly under the U.S. Constitution.”).

[2] See, e.g., Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (“In northeast Tennessee, Republicans are all but guaranteed a victory come November, meaning that it is very often the case that the primary election is, for all intents and purposes, “the race,” as Lt. Governor Ramsey himself noted when asked for his stance on the primary question. For that reason, liberal voters who want to actually have some say in the election may do well to cross over in late summer to nominate a Republican candidate whose views align closer to their own.”).

[3] See, e.g., Seok-ju Cho and Insun Kang, Open primaries and crossover voting, Journal of Theoretical Politics (2014).

[4] Joseph B. White, Michigan: Inviting Crossover Voting?, The Wall Street Journal (Feb. 23, 2012), available at http://blogs.wsj.com/washwire/2012/02/23/michigan-inviting-crossover-voting.

[5] Aaron Blake, Michigan Democratic Party encourages crossover voting in GOP presidential primary,  The Washington Post (Feb. 22, 2012), available at https://www.washingtonpost.com/blogs/the-fix/post/michigan-democratic-party-encourages-crossover-voting-in-gop-presidential-primary/2012/02/22/gIQA1qjoTR_print.html.

[6] Id. 

[7] Jeff Woods, Devil Woman: Scorned by her own political party, Rosalind Kurita is defiant and determined, The Nashville Scene (Oct. 23, 2008), http://www.nashvillescene.com/nashville/devil-woman/Content?oid=1198631 (“Barnes contested the results, charging essentially that Republicans commandeered the Democratic primary by organizing a crossover campaign”); David J. Luciano, The flip side of the 9/13 Kurita/Barnes Executive Committee hearing, Clarksville Online (Sep. 17, 2008), http://www.clarksvilleonline.com/2008/09/17/the-flip-side-of-the-913-kuritabarnes-executive-committee-hearing/ (“It was proven that a significant [sic] higher number of voters who historically vote in Republican primaries switched over to vote in the Democratic primary in this election.  The suggestion is that Rosalind Kurita used her ties to Ron Ramsey, who had pledged openly to “help her in any way [he] could” to turn out Republican voters to vote for her in an attempt to maintain Republican leadership of the Senate.”).

[8] See Kurita v. State Primary Bd. of Tennessee Democratic Party, 2008 WL 4601574 (M.D. Tenn. Oct. 14, 2008) aff’d, 472 F. App’x 398 (6th Cir. 2012).

[9] Ky. Rev. Stat. Ann. § 116.055 (“Before a person shall be qualified to vote in a primary election, he shall possess all the qualifications required of voters in a regular election. In addition, he shall be a registered member of the party in whose primary election he seeks to vote, and shall have been registered as a member of that party on December 31 immediately preceding the primary election, or, in the case of new registrations made after December 31 immediately preceding the primary election, he shall have registered and remained registered as a member of that party. No person shall be allowed to vote for any party candidates or slates of candidates other than that of the party of which he is a registered member. The qualifications shall be determined as of the date of the primary, without regard to the qualifications or disqualifications as they may exist at the succeeding regular election, except that minors seventeen (17) years of age who will become eighteen (18) years of age on or before the day of the regular election shall be entitled to vote in the primary if otherwise qualified. However, any registered voter, whether registered as a member of a party, political organization, political group, or as an independent, shall be qualified to vote in primary elections for candidates listed in all nonpartisan races.”)

[10] Iowa Code Ann. § 43.42 (“Any registered voter may change or declare a party affiliation at the polls on election day and shall be entitled to vote at any primary election. Each voter doing so shall indicate the voter’s change or declaration of party affiliation on the voter’s declaration of eligibility affidavit.”).

[11] The Tennessee Democratic Party’s bylaws do not define a “bona fide” member, and they do not establish any affiliations requirements for prospective voters at all.  However, the TNDP’s bylaws do  expressly allow party members to bring a challenge to a candidate’s status as a bona fide Democrat on the basis that the candidate has “fail[ed] to vote in at least three of the immediate prior five Democratic primaries[.]”  See Bylaws of the Tennessee Democratic Executive Committee 2010, Article III, Section 2(l) (“In the event that a county party, in compliance with its Bylaws, challenges a candidate for any office be it local, county, state or federal, against appearing on the ballot as a Democrat for failing to vote in at least three of the immediate prior five Democratic primaries, the challenge shall be referred to the County Party Development Committee which shall by a simple majority vote of the members make a recommendation to the State Party Chair.”)  Similarly, the Tennessee Republican Party’s bylaws do not establish specific bona fide membership requirements for voters, but do include flexible affiliation standards for establishing the bona fide status of prospective Republican candidates.  See Bylaws of the Tennessee Republican Party, Article IX, Section 1-2.

[12] Richard Rodda, The not-always-accurate memoirs of Earl Warren, California Journal 378 (Nov. 1977), available at http://www.unz.org/Pub/CalJournal-1977nov-00378.

[13] Of course, Tennessee law requires voters to choose a single party with which to affiliate in each election.  See Tenn. Code Ann. § 2-19-107 (“A person commits a Class D felony who:  . . . (2) Votes in the primary elections of more than one (1) political party on the same day.”).

[14] See Green Party of Tennessee v. Hargett, 882 F. Supp. 2d 959, 1004 (M.D. Tenn. 2012) (“[A]t the time of voting, the voter can simply declare affiliation with the party to vote in [a Party’s] primary election.  Although a challenge to such a declaration is permitted under Tennessee law, given [Parties’] limited support and resources, . . . prospects for realistic challenges across the State at the time of the primary voting would be, at best, nominal.”); rev’d and remanded on mootness grounds, Green Party of Tennessee v. Hargett, 700 F.3d 816 (6th Cir. 2012).  See also  Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (observing that “election officials rarely enforce [the affiliation requirement] at the polls as it is not something they are prepared to deal with.”).

[15] Tenn. Code Ann. §§ 2-7-123 – 2-7-125.

[16] Tenn. Code Ann. § 2-19-107 provides that: “A person commits a Class D felony who: (1) Intentionally and knowing that such person is not entitled to, registers or votes in any manner or attempts to register or vote in any manner where or when such person is not entitled to under this title, including voting more than once in the same election.”

Man vs. Drone: Lawsuit Could Clarify Rights of Drone Operators to Fly Over Private Land

Property Law,

By Daniel Horwitz:

Earlier this month, Nashville attorney and former U.S. Army helicopter pilot James Mackler filed a cutting-edge lawsuit in federal court that could be the first case to resolve the growing tension between homeowners’ private property rights and the rights of hobbyists to fly drones in U.S. airspace.  Mackler’s complaint – which is accessible here – asks the court to rule that drones constitute “aircraft” under federal law, and thus, that they can legally be flown above private property just like commercial airplanes.

The lawsuit pits Kentucky resident William Merideth – the self-described “Drone Slayer” – against his neighbor John Boggs, whose drone Mr. Merideth blasted out of the sky above his home with three rounds from his Benelli M1 shotgun.  In addition to seeking $1,500 in damages to replace his drone, Mr. Merideth has asked the court to declare as a matter of law that flying a drone in the “navigable airspace” controlled by the Federal Aviation Administration (FAA) is not illegal.  At present, according to the FAA, the federal government has exclusive jurisdiction over “the safety and management of U.S. airspace from the ground up,”[1] which generally includes the airspace over private property.

At common law, the rights of landowners extended ad coelum et ad infernos[2]—“all the way to heaven and all the way to hell.”  In the 1946 U.S. Supreme Court case United States v. Causby, however, the Court modified this common law rule for “air rights” by holding instead that landowners “own[] at least as much of the space above the ground as the[y] can occupy or use in connection with the land.”[3]  The Supreme Court’s decision in Causby represented a marked evolution in American understanding of airspace as “a public highway,”[4] and it has long been recognized as an essential ruling that permitted the commercial airline industry to develop and function.  With respect to airspace that a private landowner can use or is actually using, however, there is little doubt that such airspace still constitutes private property that cannot be crossed without the owner’s consent.

As Mackler’s lawsuit exemplifies, the growing popularity of drones throughout the United States is forcing society to grapple with our previously-settled understanding of private and public airspace once again.  Unlike commercial airplanes, drones operated by hobbyists present profound privacy and public safety concerns that federal law has yet to address.  Accordingly, states and municipalities have scrambled to enact a patchwork of laws aimed at balancing the interests of landowners against those of drone operators, which has resulted in significant confusion over where landowners’ rights end and drone owners’ rights begin.  If decided on its merits, the (un)neighborly dispute between Merideth and Boggs could represent the judiciary’s first attempt to resolve this balance under federal law.  As a result, until the FAA unveils precise rules governing private drone operation, the lawsuit could provide a measure of certainty to home owners and drone owners alike.

Questions about this article?  Email Daniel Horwitz at [email protected].

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[1] Andrea Peterson and Matt McFarland, You may be powerless to stop a drone from hovering over your own yard, The Washington Post (January 13, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/01/13/you-may-be-powerless-to-stop-a-drone-from-hovering-over-your-own-yard/.

[2] United States v. Causby, 328 U.S. 256, 274, 66 S. Ct. 1062, 1072, 90 L. Ed. 1206 (1946) (citing 1 Coke, Institutes, 19th Ed. 1832, ch. 1, s 1(4a); 2 Blackstone, Commentaries, Lewis Ed. 1902, p. 18; 3 Kent, Commentaries, Gould Ed. 1896, p. 621.).

[3] Causby, 328 U.S. at 264.

[4] Id. at 261.

Metro Can Sue Its Own Zoning Board, Holds Tennessee Supreme Court

Civil Procedure,

By Daniel Horwitz:

In March 2012, an advertising company applied to Metro’s Department of Codes and Building Safety for two digital display billboard permits.  The Department’s Zoning Administrator denied the company’s two permit requests, so the company appealed the denial to Metro’s Board of Zoning Appeals (“the Board”).  On a 4-2 vote, the Board overturned the Zoning Administrator’s decision, and it granted the company the two digital display permits that it sought.

Unhappy with the Board’s decision, Metro Legal filed a lawsuit against the Board and various other parties under the appeal provision set forth in Tenn. Code Ann. § 27-9-101, which governs zoning appeals.  In response, the parties that Metro Legal sued filed a motion to dismiss the lawsuit on the basis that Metro “does not have standing to bring suit [against its] own Board.”  The trial court granted the parties’ motion to dismiss, finding that Metro did not have a legal right to appeal the Board’s decision under Tenn. Code Ann. § 27-9-101.  Further, the trial court held that Metro had not suffered an injury, which is a necessary precondition to filing any kind of lawsuit.  As a result, Metro Legal appealed the trial court’s decision to dismiss its lawsuit to the Tennessee Court of Appeals, and the case ultimately reached the Tennessee Supreme Court.

1.  Metro’s Right to Appeal Under Tenn. Code Ann. § 27-9-101

The statute governing zoning appeals provides broadly that: “Anyone who may be aggrieved by any final order or judgment of any board or commission . . . may have the order or judgment reviewed by the courts, where not otherwise specifically provided, in the manner provided by this chapter.”[1]  Thus, the first question presented was whether the term “anyone” in Tenn. Code Ann. § 27-9-101 included Metro.

Reviewing the applicable statutory text, the Tennessee Supreme Court easily concluded that for purposes of Tenn. Code Ann. § 27-9-101, “anyone” did indeed include Metro.  Writing for a unanimous court, Justice Bivins explained that:  “Section 101 refers to ‘anyone,’ and we conclude that Metro, a public corporation, falls within the scope of the term ‘anyone.’”  Further, he noted, “[e]ven were we to construe ‘anyone’ as referring to ‘persons,’ the Tennessee Code defines ‘person’ as including corporations[, and] Metro is a public corporation[.]”  Accordingly, he reasoned, Metro enjoys the right to pursue zoning appeals under Tenn. Code Ann. § 27-9-101 just like anyone else.

Seeking a contrary holding, Metro’s opposing litigants highlighted the fact that the legislature had considered – but failed to enact – a separate version of the zoning appeal statute that would have expressly afforded municipalities the right to appeal.  By opting not to enact that version, they argued, the legislature must have intended to deny municipalities the right to appeal zoning decisions.  Rejecting this line of reasoning, however, the Court explained that it was “[un]aware of any [] authority limiting the definition of the term ‘anyone’ . . .  to exclude Metro as a potential petitioner.”[2]

2.  Metro’s Injury

Having established that Tenn. Code Ann. § 27-9-101 affords Metro the right to seek judicial review of zoning decisions under circumstances when it has been “aggrieved,” the next question to be decided was whether it is even possible for Metro “to be aggrieved by an erroneous decision made by one of its own boards.”  Holding in the affirmative, the Court explained that “when applied to local governments, aggrievement encompasses interference with a local government’s ability to fulfill its statutory obligations, or substantial, direct, and adverse effects on the local government in its corporate capacity.”  Since Metro alleged in its complaint that the Zoning Board’s decision would interfere with its duty to enforce municipal zoning ordinances, the Court concluded that Metro had alleged an injury sufficient to justify judicial review.  Specifically, the court explained:

“Metro has established that it is ‘aggrieved’ by its allegation that, if the [Board’s] ruling is allowed to stand, it will be unable to enforce certain of its ordinances.  That allegation is within Section 101‟s zone of interests. Accordingly, Metro has established its standing to bring this action under Section 101.”

3.  Policy Considerations

In holding that Metro has the legal right to appeal decisions made by the Board of Zoning Appeals, the Court also relied heavily on a single crucial policy consideration:  the fact that a contrary result would mean that only wealthy individuals would be able to appeal adverse zoning decisions.  Specifically, the Court noted, if Metro did not have the right to appeal Board decisions on behalf of taxpayers, then only individuals or entities with sufficient resources to file a lawsuit would be able to challenge the Board in court.  Rejecting this result as unacceptable, the Court explained that it was “persuaded particularly” by the concern that:

“The enforcement of a governmental body’s zoning code should not depend upon the economic status of individuals.  Indeed, such a scenario stands to defeat the very purpose of a zoning code.”

The Court’s sensitivity to the fact that legal rights should not be a function of poverty is welcome and should be applauded by all.  One can only hope, however, that its concern for indigent citizens will extend beyond those affected by zoning decisions.  It is well documented, for example, that within the criminal justice system, outcomes that should depend exclusively on guilt or innocence are instead highly dependent on a defendant’s economic status—leading inexorably to the conclusion that “[t]here is a crisis in legal representation for the poor throughout the country.”[3]  Similarly, on behalf of several domestic and sexual violence prevention advocates who are seeking to protect rape victims from having their most sensitive personal information disclosed, the author has beseeched the Justices to recognize that “the vast majority of victims of sexual and domestic violence lack the means to retain private counsel to protect their rights in any—much less every—phase of Tennessee’s justice system.”  See Tennessean v. Metro. Gov’t of Nashville, No. M-2014-00524-SC-R11-CV, Brief of Amici Curiae Domestic and Sexual Violence Prevention Advocates 32, available at http://works.bepress.com/cgi/viewcontent.cgi?article=1023&context=daniel_horwitz.  Accordingly, these advocates have implored the Court to hold that rape survivors should benefit from a presumption in favor of non-disclosure with respect to their private, personal information, rather than being forced to hire an attorney to protect their rights in the event that someone seeks access to their private records.

Whether the Court will take citizens’ poverty and economic status into consideration outside the context of zoning disputes, however, only time will tell.

Read the Tennessee Supreme Court’s unanimous opinion in Metro. Gov’t of Nashville-Davidson Cty. v. Bd. of Zoning Appeals of Nashville here.

Questions about this article?  Email Daniel Horwitz at [email protected].

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[1] Tenn. Code Ann. § 27-9-101.

[2] In the author’s view, a much stronger argument would have been that Tenn. Code Ann. § 13-7-206 – which governs the first step of the zoning appeals process – specifically affords “municipalit[ies]” the right to appeal, while Tenn. Code Ann. § 27-9-101 – which governs the second step of the zoning appeals process – does not.  Pursuant to the doctrine of in pari materia, one could argue persuasively that this conspicuous difference indicates that the legislature intended for the two provisions to function differently.  See, e.g., Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 560 (Tenn. 2013) (holding that where to statutory provisions are “enacted together,” “the doctrine of in pari materia requires us to interpret the[] two sections together. . . . Although legislative silence is not generally indicative of an intent not to act, legislative silence in [] context offers a strong suggestion that the legislature intend[s provisions to] function differently.”) (internal citations omitted).

[3] Stephen B. Bright, The Right to Counsel in Death Penalty and Other Criminal Cases: Neglect of the Most Fundamental Right and What We Should Do About It, 11 J.L. SOC’Y 1, 3 (2010), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4457&context=fss_papers.

Tennessee Supreme Court gives trial courts more latitude in determining proper sanctions for spoliation of evidence.

Civil Procedure, ,

By Daniel Horwitz:

On March 3rd, 2008, Lee Ann Tatham purchased two new Bridgestone tires in Murfreesboro, Tennessee.  Unfortunately, however, less than three months later, one of the two tires failed while she was driving on the interstate, causing her to spin out.  Thereafter, Ms. Tatham’s car careened across the highway, struck a guardrail, flipped, and landed in a ditch.  Ms. Tatham survived the accident, but she suffered a broken back as a result of it.

Because her car was completely totaled in the accident, Ms. Tatham’s insurance company advised her to transfer the title of her vehicle to the wrecker service that had towed it away.  The wrecker service subsequently destroyed her vehicle – including the defective tire – as part of its routine practice.  Ms. Tatham did not seek to have the tire destroyed by the wrecker service, and she did not know that it would be.  Additionally, because she had not yet hired an attorney, Ms. Tatham was not aware that she was supposed to have the defective tire preserved as evidence.

Eventually, Ms. Tatham brought a products liability lawsuit against Bridgestone seeking compensation for her injuries.  Thereafter, Bridgestone filed a motion to dismiss Ms. Tatham’s lawsuit on the basis that the tire at issue had improperly been destroyed.  The trial court denied Bridgestone’s motion, and it permitted Ms. Tatham’s case to go forward.  This appeal followed.

Spoliation of Evidence

As a general matter, people are not allowed to destroy evidence that will be relevant to a future legal proceeding.  Failing to preserve evidence – or, in legal parlance, “spoliation of evidence” – exposes a litigant to being sanctioned once the legal proceeding begins.[1]  In Tennessee, the range of potential remedies that a trial court can use to punish a party for destroying evidence is extensive.  Possible sanctions include “dismissal of the action, rendering a judgment by default, limiting the introduction of certain claims or evidence, entering an order designating that certain facts shall be taken as established, and striking out pleadings or parts of pleadings.”[2]

Broadly speaking, trial sanctions for spoliation of evidence are intended to serve two purposes.  First, they “attempt[] to place the non-spoliator in a position similar to where it would have been prior to the destruction of evidence.”[3]  Second, Continue reading Tennessee Supreme Court gives trial courts more latitude in determining proper sanctions for spoliation of evidence. →

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.

Civil Procedure, Tennessee Constitutional Law, ,

By Daniel Horwitz:

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. →