Tennessee Court of Appeals Forces Carriage Operator Off Its High Horse In Breach of Contract Dispute

By Daniel A. Horwitz:

The Court of Appeals horsed around a bit today in a case involving a local carriage operator’s non-compete agreement.  The Court’s opinion in Sugar Creek Carriages v. Hat Creek Carriages, et al.—authored by Judge Frank Clement—is available here.

In 2017, Sugar Creek Carriages—a horse-drawn carriage company based in Nashville—filed a lawsuit seeking to force a former employee to “pony up” $2,500 in liquidated damages for breaching a non-compete contract.  Sugar Creek also sought several thousand bucks from Hat Creek Carriages—its former employee’s new employer—for procurement of breach of contract as well.  The employee was ultimately dismissed from the case, so the lawsuit proceeded on the procurement of breach of contract claim alone.

Unfortunately for Sugar Creek Carriages, its claim proved to be a bit much.  Under Tennessee law, “[t]o establish a claim for procurement of breach of contract, a plaintiff must prove seven elements:

(1) There must be a legal contract;

(2) The wrongdoer must have knowledge of the existence of the contract;

(3) There must be an intention to induce its breach;

(4) The wrongdoer must have acted with malice;

(5) There must be a breach of the contract;

(6) The act complained of must be the proximate cause of the breach of contract; and

(7) There must have been damages resulting from the breach of the contract.”[1]

Thus, even if all other elements are met, a defendant cannot be saddled with liability for procuring a breach of contract if the contract itself is legally void.

Here, Sugar Creek Carriages’ former employee had indeed signed a non-compete clause before switching companies.  As a general matter, though, covenants not to compete are disfavored under Tennessee law both because they are in restraint of trade and because there is a strong public interest in having financially stable citizens who are not deprived of their right to earn a living.[2]  However, if there is a legitimate business interest to be protected, and if the non-compete agreement is reined in by reasonable time and territorial limits, then non-compete clauses are generally enforceable under Tennessee law.[3]  Additional factors that determine whether a non-compete clause can be enforced include:

(1) the consideration supporting the covenant;

(2) the threatened danger to the employer in the absence of the covenant;

(3) the economic hardship imposed on the employee by the covenant;

(4) whether the covenant is inimical to the public interest; and

(5) whether the time and territorial limits must be no greater than necessary to protect the business interest of the employer.[4]

In the case at hand, Sugar Creek contended that its non-compete clause was enforceable because it had “a protectable business interest in the specialized and unique training” that it had provided its former employee.  As far as protecting that interest, however, Sugar Creek put the cart before the horse by simultaneously advertising to the public at large that “anybody is welcome to pay to attend [its horse-drawn carriage] driving school”—not just its employees—and by stating further that anyone who did so would immediately be “prepared to start [their] own horse-drawn carriage business.”

Consequently, Sugar Creek’s central argument that it had provided “specialized and unique training” to its former employee turned out to be lame, and the Court of Appeals quickly put it out to pasture.  Specifically, the Court explained:

“[Sugar Creek’s] advertisement for the same training program explicitly invites members of the public to compete with it.

Assuming the specialized training [Sugar Creek] provided . . . is protectable as a matter of law, the Noncompete Agreement fails to protect that interest because it attempts to shut the barn door well after the horses have bolted. As a consequence, the Noncompete Agreement is unenforceable . . ., which is also fatal to [Sugar Creek’s] claim for procurement of breach of contract.”

Thus, after roughly a year of legal jockeying, the case has finally come to a close.  The Court of Appeals’ unanimous decision has officially forced Sugar Creek off of its high horse, and now unbridled by any fear of liability, Hat Creek Carriages can hit the hay.

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[1] Buddy Lee Attractions, Inc. v. William Morris Agency, Inc., 13 S.W.3d 343, 354-55 (Tenn. Ct. App. 1999) (citing Dynamic Motel Mgmt., Inc. v. Erwin, 528 S.W.2d 819, 822 (Tenn. Ct. App. 1975)).  See also Tenn. Code Ann. § 47-50-109.

[2] Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471, 472 (Tenn. 1984).

[3] Murfreesboro Medical Clinic, P.A. v. Udom, 166 S.W.3d 674, 678 (Tenn. 2005).

[4] Id. See also Allright Auto Parks, Inc. v. Berry, 219 Tenn. 280, 409 S .W.2d 361, 363 (1966).

Tennessee Needs to Provide More Protection to People Sued for Defamation

By Daniel A. Horwitz:

Yesterday morning, the Nashville Post reported on yet another baseless, multimillion dollar defamation lawsuit filed here in Nashville.  The lawsuit follows a series of other recent defamation actions—including since-dismissed attempts to silence dog lovers, supposed media sources, and others—that have been aimed at stifling legitimate public criticism.

It should be emphasized that the overwhelming majority of such lawsuits have no realistic chance of success in a court of law.  Disturbingly, however, regardless of their legally meritless nature, such lawsuits often achieve their intended result—censorship of critical commentary and criticism of the powerful in particular—anyway.  Because, all things being equal, people would prefer not to be sued, voluntary self-censorship can be all-too-appealing.  Thus, to prevent such societal harm, it is long past time that Tennessee adopted a meaningful Anti-SLAPP law to deter would-be censors from threatening those who lawfully exercise their fundamental right to speak freely.

Though its protections are commonly taken for granted, the First Amendment to the United States Constitution codifies the most important protection in America’s governing charter.  Chief among the rights guaranteed by the First Amendment is the proscription against government action that “abridg[es] the freedom of speech.”  Uncontroversially, the right to speak freely plays an indispensable role in enabling the free exchange of thoughts, information, and ideas.  Indeed, without such a right, democratic government would not be possible at all.  If unaccompanied by the right to speak freely and critically, for example, “free and fair” elections would quickly become unrecognizable.

When it comes to defamation lawsuits, the First Amendment affords citizens enormous protection.  In practice, however, exercising one’s constitutional right to criticize the powerful can result in ruinous financial consequences.

The ability to sue people for defamation (libel in published form, slander by spoken word) or any number of other speech-related torts—like false light invasion of privacy—operate as theoretically narrow exceptions to the broad rule that speech is not illegal.  As a practical matter, however, most people cannot afford the tens (if not hundreds) of thousands of dollars in legal fees that are necessary to defend oneself against even the most frivolous defamation claims.  Nor are most people willing to endure the years of terror and stress that commonly accompany litigation.  As a consequence, in practice, these theoretically narrow exceptions provide enormous space for the powerful and well-resourced to threaten, censor, abuse, and intimidate those who lack the means, knowledge, or fortitude to defend themselves.  Further, when media outlets puff up defamation lawsuits and hype the liability that defendants are facing at the outset of a case regardless of legitimacy—but then fail to follow up after a lawsuit predictably collapses—all that viewers learn is that criticizing powerful people is dangerous.

None of this, of course, is meant to suggest that all defamation lawsuits are meritless.  In the 1966 case Rosenblatt v. Baer, U.S. Supreme Court Justice Potter Stewart persuasively observed that: “The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.”  This worldview still carries widespread acceptance.  Accordingly, even the most ardent defenders of the First Amendment support defamation claims where, for example, someone falsely accuses an innocent child of being a murderer.  Indeed, even this author has filed a defamation suit to protect the reputation of an individual who was subjected to fabricated claims (on national television) of being a rapist and a thief by a woman who had had him kidnapped, tortured and very nearly killed—a lawsuit that ultimately resulted in an admission that the allegations were baseless.

Despite their frequency, however, legitimate defamation suits are few and far between.  Accordingly, the overwhelming majority of people who are sued for defamation are subjected to potential liability for lawfully exercising a constitutional right.  Further, because the First Amendment values not only the right to speak, but also the right to hear and the right to receive information, when individuals are censored, society as a whole suffers.

To deter such harm, many states have adopted “Anti-SLAPP” laws, which afford people who are sued for defamation special protections in response to “Strategic Lawsuits Against Public Participation.”  Although the substance of such laws varies across jurisdictions, they frequently contain provisions requiring mandatory payment of attorney’s fees in the event of a successful defense; an expedited process for reviewing the legitimacy of a plaintiff’s lawsuit; and/or an automatic right to appeal early on in the proceedings.

Tennessee, for its part, has a limited Anti-SLAPP law that provides for the payment of attorney’s fees when a person is improperly sued for exercising “such person’s right of free speech or petition under the Tennessee or United States Constitution in connection with a public or governmental issue,” and when the person sued has “communicate[d] information regarding another person or entity to any agency of the federal, state or local government regarding a matter of concern to that agency.”  Because few statements resulting in defamation lawsuits arise out of reports to government agencies, however, few defendants are able to take advantage of the law’s protection.  Given that speech in the public square is every bit as important as statements made to government agencies, however, it is long past time for these protections to be expanded.

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February 2018 Tennessee Bar Results: Maximiliano Gluzman Passes, Nashville School of Law Posts Anemic 13% Passage Rate

By Daniel A. Horwitz:

Earlier this morning, the Tennessee Board of Law Examiners released the results of the February 2018 Tennessee Bar Exam.  Taken by 281 prospective lawyers, the exam resulted in an unusually low total passage rate of 35%.  Although Vanderbilt Law School and the University of Memphis School of Law posted respectable passage rates of 100% and 58%, respectively, the total rate of successful takers was dragged down substantially by another dismal performance by Nashville School of Law, which posted an overall passage rate of just 13%.

One notable bright spot in the exam was the success of Maximiliano Gabriel Gluzman, the “obviously very, very qualified” Vanderbilt Law School graduate who was denied the opportunity even to take the Tennessee Bar Exam until that denial was unanimously reversed by the Tennessee Supreme Court last summer.  Thereafter, Mr. Gluzman’s case resulted in substantial amendments to Tennessee’s bar eligibility rules for foreign applicants, which will enable the Volunteer State to play an increasingly large role in conducting international business and prevent continued discrimination against foreign applicants going forward.

Mr. Gluzman’s success, while unsurprising, is also particularly sweet for his lawyer (the author), who has spent much of the past year bristling at the Board of Law Examiners’ assertion—supplied by former Tennessee Supreme Court Justice William Barker—that most people like Mr. Gluzman who take the bar exam “don’t pass.”  Like his colleagues on the Board of Law Examiners, former Justice Barker specifically voted against permitting Mr. Gluzman the opportunity even to sit for the bar exam on the basis that: “I just hate for people to come spend all the time and money and years of their lives with no possibility of passing.”  Mr. Gluzman has since passed two bar exams, each on his first attempt.

Speaking of people who spend a huge amount of “time and money and years of their lives with no possibility of passing,” however, it is long past time for the Tennessee Board of Law Examiners to take a serious look at what has been going on at Nashville School of Law.  For context, in 2014, Nashville School of Law secured new leadership and pledged to improve its state-worst passage rate of what was then 65-70%.  Since that time, the school has posted overall passage rates of 50% (February 2015), 28% (July 2015), 30% (February 2016), 28% (July 2016), 35% (February 2017), 38% (July 2017), and 13% (February 2018).  In other words: the school is on a downward trajectory, and it hasn’t had a majority of its students pass the bar exam in years.  Thus, if the Board of Law Examiners’ concern—expressed passionately with regard to foreign applicants like Mr. Gluzman—that prospective students will spend time and money training for an exam that they have little hope of passing was genuine, then presumably, Nashville School of Law’s consistently anemic passage rate will at some point come under the Board’s microscope.

It should be emphasized that Nashville School of Law has produced many wonderful, capable graduates—including the author’s co-counsel in another major Supreme Court victory earlier this week.  Thus, the issue likely has less to do with poor instruction than it does an administration that has liberalized admissions standards and accepted applicants who statistically have no reasonable chance of passing the bar exam after graduating.  As the author has previously explained:

Driven by a rapid decrease in law school applicants over the past several years (the total number of law school applicants has declined precipitously since 2010, falling from a high of 87,900 to a low of 54,130 in 2015), the academic credentials of incoming law students have measurably decreased.  Controversially, many law schools have responded to this problem (and the corresponding loss of revenue) by decreasing their admissions standards, which has predictably resulted in lower bar passage rates post-graduation.

In other words: to make up for lost revenue, many law schools have simply let in anybody who is willing to pay tuition.  The result is a major disservice to countless students who ultimately waste years of their lives and tens of thousands of dollars (or more)—not including opportunity costs—in pursuit of a profession that they likely will never be able to practice.

If Nashville School of Law were accredited by the American Bar Association, it would have been subject to discipline for both its lax admissions standards and its atrocious bar passage rate a long time ago, as Duncan School of Law was earlier this week.  However, Nashville School of Law is not an ABA-accredited law school, and it is instead regulated directly by the Tennessee Supreme Court.  Hopefully, at some point soon, the Court will step in and force the school to improve its admissions standards in the name of protecting hundreds of future applicants from wasting their time and money on a degree that they will never be able to use.

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Mr. Wallace Goes to Court (Update: He Won)

UPDATE: By Order issued 4/10/2018, Nashville’s Mayoral Election must be held in May.  The Court’s unanimous opinion is available here.  

“We are grateful that the Tennessee Supreme Court has issued a powerful, persuasive, and unanimous opinion vindicating Mr. Wallace’s claim that the Charter is clear and that Metro Government cannot unilaterally nullify a referendum supported by 83% of voters.” —Jamie Hollin and Daniel Horwitz, Counsel for Ludye Wallace

_______________________

Yesterday afternoon, the Tennessee Supreme Court’s full gallery of onlookers was treated to an unprecedented event: an emergency appeal demanding that Metro Nashville hold a near-immediate special election to fill the vacancy in its Mayor’s office.  The office became vacant on March 6, 2018, when ex-Mayor Megan Barry resigned after pleading guilty to felony theft.  Following an extraordinary oral argument in which lawyers for the city argued that they had provided an “inaccurate” ballot summary to voters, the Court announced that it would issue a ruling sometime this week.

The emergency appeal—filed on behalf of Mayoral candidate and former Metro Councilman Ludye Wallace—centers on Section 15.03 of Nashville’s Metro Charter.  In pertinent part, that section reads: “There shall be held a special metropolitan election to fill a vacancy for the unexpired term in the office of mayor . . . whenever such vacancy shall exist more than twelve (12) months prior to the date of the next general metropolitan election.”  Consequently, the case turns on when “the next general metropolitan election” is scheduled to take place.  If, as Mr. Wallace argues, “the next general metropolitan election” is not until August 2019, then a special election must be held in May.  If, as Metro argues, there will be a “general metropolitan election” in August 2018, however, then the election can be held then.

Helpfully, the Metro Charter expressly defines “general metropolitan elections.”  One provision of the Charter—Section 15.01—is specifically titled “When general metropolitan elections held,” and it makes clear that such elections are only held every fourth August in odd-numbered years.  Another Charter provision referring exclusively to those four-year August elections—Section 15.02—uses the term “the general metropolitan election” seven separate times.  And another Charter provision—Section 18.06—reflects that Metro has uniformly considered those specific four-year August elections to be the only type of “general metropolitan elections” for decades.

Most clearly, however, because Section 15.03 was enacted by voter referendum in 2007, Metro was also required to provide a summary of the provision at the time that it was being considered for adoption by voters.  By law, that summary had to be “worded so as to convey [the amendment’s] meaning.”  Helpfully, in clear (and admittedly unambiguous) terms, the ballot summary stated: “This amendment would require that a special election be held to fill a vacancy in the office of mayor . . . whenever more than twelve (12) months remain in the unexpired term.”

Because more than eighteen months remained in ex-Mayor Barry’s term when she resigned, it would seem clear that Section 15.03 requires “that a special election be held to fill a vacancy in the office of mayor,” since all agree that “more than twelve (12) months remain in the unexpired term.”  Attempting to avoid this result, however, Metro lawyers argued to the court yesterday that the ballot summary they provided to voters was inaccurate.

Responding to that claim, Mr. Wallace’s counsel argued that such a position—if tolerated—would call “the integrity of the referendum process and the democratic process itself into question.”  Although that contention did not appear to be well-received by one Justice, it was certainly well supported.  Under similar circumstances, court after court has held that “[t]he citizen initiative constitutional amendment process relies on an accurate, objective ballot summary for its legitimacy.”  See In re Advisory Opinion to the Atty. Gen. re Additional Homestead Tax Exemption, 880 So. 2d 646, 653 (Fla. 2004).  See also Zukerberg v. Bd. of Elections & Ethics, 97 A.3d 1064, 1079 n. 77 (D.C. 2014) (“the summary is very important, because it will likely form the basis of a voter’s decision.”).  In a recent decision concerning Amendment 1 to the Tennessee Constitution, the U.S. Court of Appeals for the Sixth Circuit similarly explained that misleading voters without notice creates a Due Process problem.

Here, in undisputed reliance upon Metro’s “inaccurate” ballot summary, 83 percent of Nashville’s voters voted in favor of the amendment, and it carried every single precinct in the county.  As Mr. Wallace has argued, the measure also ensures that Nashville’s residents will promptly be able to ensure “that their Mayor is someone who was actually elected to represent them.”  Consequently, the notion that Metro can bait voters into supporting a referendum under a specifically defined set of terms and then attempt to change the provision’s meaning after the fact is, frankly, preposterous.

In a statement released to the media after the Tennessee Supreme Court exercised its jurisdiction to hear the case, Mr. Wallace’s lawyers stated that “[w]e are optimistic that the unambiguous terms of the Metro Charter and the clearly expressed will of 83 percent of Nashville’s voters will soon be vindicated.”  For the sake of the rule of law—and to protect the legitimacy of the referendum process—every Metro voter should hope they’re right.

Selected Case Documents

*Tennessee Supreme Court’s Opinion and Order

Wallace Principal Brief

Metro’s Principal Brief

Wallace Reply Brief

Wallace Application for Extraordinary Jurisdiction

Selected Media Coverage

-The Tennessean: Tennessee Supreme Court moves up Nashville mayoral special election to May

-The Nashville Scene: Supreme Court: Mayoral Election Must Be Held in May

-The Nashville Post: Supreme Court moves mayoral election to May

-The Nashville Business Journal: Supreme Court strikes down August mayoral election date

-Nashville Business Journal: Tennessee Supreme Court to decide fate of Nashville mayoral election

-WPLN: Nashville Must Hold Next Mayor’s Election In May, Court Rules

-Nashville Post: Supreme Court will decide mayoral election date

-Nashville Scene:  Metro Legal Could Cost the City Money for Another Election

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Tennesseans for Sensible Election Laws: It Shouldn’t Be a Crime to Make Fun of Your State Representative. In Tennessee, It Is.

Republished with permission from Tennesseans for Sensible Election Laws, a new organization seeking to ensure that Tennessee’s election statutes, policies, and regulations protect the rights of all Tennesseans to participate in democracy and support candidates of their choosing without unreasonable governmental interference.

_________________________

If you decide that you’ve had enough of the nonsense in Nashville and you send postcards to potential voters claiming your representative “has cauliflower for brains”—or if you publish or distribute any other “campaign literature in opposition to any candidate in any election” that you know to be false—police can arrest you for committing a Class C misdemeanor, lock you in a cage for a month, and fine you for every postcard you send.  Frighteningly, if Tennessee House Representative Karen Camper (D-Memphis) and Tennessee Senator Reginald Tate (D-Memphis) get their way, the “crime” of distributing false campaign literature would be elevated to a Class A misdemeanor, allowing the state to lock you up for nearly a year.

What country is this, and what happened to America?

The often-misunderstood Citizens United v. FEC case turns eight years old this year.  In that case, the Supreme Court ruled that the First Amendment protects people from being thrown in jail for exercising their right to free speech.  What better time is there to explore why the ideas behind Tenn. Code Ann. § 2-19-142 are so bad?

It goes without saying that giving government officials the power to imprison people who criticize or make fun of them is a dangerous, slippery slope.  With that context in mind, it is also worth noting that the Camper/Tate bill that the General Assembly is considering this legislative session helps nobody more than it helps Rep. Camper and Sen. Tate.  If you can’t write that your representative has cauliflower for brains, what can you write?  You can write a bunch of boring technical, legal, or public policy jargon that most people don’t understand.  When people read those kinds of things, they either vote for people who already hold office—like Rep. Camper and Sen. Tate—or they get frustrated and don’t vote at all.  Either way, incumbents win.

In a case involving an Ohio state law that criminalized political speech the same way that Tenn. Code Ann. § 2-19-142 does, Cato Institute constitutional scholar Ilya Shapiro once argued to the Supreme Court that “‘truthiness’—a ‘truth’ asserted ‘from the gut’ or because it ‘feels right,’ without regard to evidence or logic—is . . . a key part of political discourse.”  He also recognized that “the government [is not] well-suited for evaluating when a statement crosses the line into falsehood.”  That’s doubly true for people who have both the power to make laws and a personal interest in the outcome of their next election.  (And ultimately, Shapiro proved right: Ohio backed away from trying to enforce its unconstitutional law against a nonprofit that wanted to put up a billboard.)

Further, Tenn. Code Ann. § 2-19-142 ignores that saying nasty things about the other guy or gal is as American as apple pie.  When Thomas Jefferson ran for president in 1800, he accused President John Adams of “trying to start a war with France,” “importing mistresses from Europe,” and committing that cardinal sin of “trying to marry one of his sons to a daughter of King George.”  Adams, a known verbal pugilist, repaid Jefferson in kind, saying that if people elected the man who wrote the Declaration of Independence, their homes would spontaneously combust.  (And thanks to Lin-Manuel Miranda, many people now know that Adams also called Alexander Hamilton a “Creole bastard”—but that was actually true!)

If politicians want to literally handcuff themselves from being able to joke about some of the more cartoonish candidates for Tennessee governor and U.S. Senate this year, I suppose they can be my guest—because that’s exactly what Tenn. Code Ann. § 2-19-142 does.  Of course, Tennesseans who support sensible election laws shouldn’t let this happen.  Vote against Rep. Camper and Sen. Tate in the next election.  After all, they have cauliflower for brains.

Paid for by Tennesseans for Sensible Election Laws.  George S. Scoville III, Treasurer.  Not authorized by any candidate or candidate’s committee, but we don’t think it should be a crime not to tell you that.

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Tennesseans for Sensible Election Laws is a non-partisan, non-profit group of concerned citizens who care about protecting Tennessee’s democratic process.  Our mission is to ensure that Tennessee’s election statutes, policies, and regulations protect the rights of all Tennesseans to participate in democracy and support candidates of their choosing without unreasonable governmental interference.

We work toward this mission by supporting pro-democracy candidates for public office, initiating strategic litigation, engaging in direct lobbying, and promoting public awareness.   Follow us on Facebook and Twitter, and please click here to support our work.

Estate of Jocques Clemmons Secures Return of Phone; Deletion of Social Media Data Procured by MNPD

In an important win against investigative abuse, the Estate of Jocques Clemmons has secured all of the relief that it sought in a February 9, 2018 lawsuit concerning the Metro Nashville Police Department’s efforts to search Mr. Clemmons’ cell phone and social media accounts following his death.  The MNPD and MNPD Detective Danny Satterfield—who procured the warrants at issue and was similarly sued by Mr. Clemmons’ estate—also formally acknowledged that the search warrants that were sought against Mr. Clemmons could “be construed as overbroad.”

Following a settlement agreement reached on March 2nd, the MNPD agreed to relinquish Mr. Clemmons’ cell phone to his mother, which it had refused to turn over for more than a year following Mr. Clemmons’ death.  Yesterday, in keeping with the parties’ settlement agreement, the MNPD also filed a Declaration of Compliance certifying that the defendants had “administratively expunged and destroyed all data in their possession retrieved from Jocques Clemmons’ Instagram account and Facebook account.”  Accordingly, earlier this morning, the U.S. District Court for the Middle District of Tennessee issued a Final Order terminating the case.

The lawsuit arose out of a fatal officer-involved shooting on February 2017, during which Mr. Clemmons was shot in the back.  Days after Mr. Clemmons was killed, MNPD Detective Danny Satterfield filed three search warrant applications seeking “any/all data contained and/or stored within” Mr. Clemmons’ Facebook account, Instagram account, and cell phone.  Without any stated time or content limitation whatsoever, the warrants specifically sought Mr. Clemmons’ “pictures, videos, audio, text messages, incoming/outgoing Facebook Messanger [sic] conversations, voicemails, chat logs, contact information, call logs, emails, internet data, Wi-Fi data, IP address(es), search history, maps, locations, GPS data, drafts, deleted files/folders, etc.”

Officer Satterfield’s search warrant applications stated under oath that he had probable cause to believe that all of the data on Mr. Clemmons’ social media accounts and cell phone contained “certain evidence” of a crime committed by Mr. Clemmons, who was by then deceased and not subject to arrest.  A month later, however, the MNPD acknowledged that whether Mr. Clemmons’ social media accounts or cell phone contained any relevant evidence was actually “unknown.”   Disturbingly, such efforts to rifle through decedents’ social media accounts and cell phones in search of damaging information after controversial officer-involved shootings are not isolated.

“While we remain disappointed that these three wildly overbroad and comically unconstitutional search warrants were ever sought or approved in the first place, we appreciate that the MNPD has now taken the steps necessary to remedy those prior illegalities,” said attorney Daniel Horwitz, who represented Mr. Clemmons’ estate. “The Clemmons family is very happy to have back his phone—which contains several cherished family photos—and it is satisfied that the MNPD has now destroyed the data that it unlawfully obtained from Mr. Clemmons’ social media accounts following his death.”

Selected Case Documents:

Clemmons Complaint & Exhibits (MNPD Social Media Warrants)

*Settlement Agreement

Defendants’ Declaration of Compliance

Final Order

Selected Media Coverage:

-Patch: After A Year, Nashville Police Return Jocques Clemmons’ Phone

-The Tennessean: More than a year after Jocques Clemmons died, police returned his phone to family

-News Channel 5: Metro Police Return Clemmons’ Cell Phone After Lawsuit Is Filed

-The Tennessean: A year after Jocques Clemmons’ death, police still have his phone. His family wants it back.

-The Nashville Scene: It’s Been One Year Since the Jocques Clemmons Shooting

-The Nashville Scene: Why Does MNPD Need to Search Jocques Clemmons’ Social Media?

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Can the Tennessee Democratic Party Disqualify Angie Dalton for Fundraising for Republicans?

By Daniel A. Horwitz:

Election season is back!  As Nashville gears up for a major transit referendum and readies itself to choose critical new officeholders for…Register of Deeds and several other county offices that we inexplicably elect, the time for junk mail, jingles, and internal party shenanigans is officially upon us.

This blog has previously tackled the issue of whether trying to vote in another party’s primary is illegal (it’s not).  For this edition of “is that really allowed?”, we examine whether a political party can disqualify a candidate from running as a Democrat after fundraising for Republicans (or vice versa).  The answer: Yes—and candidates can also be disqualified by parties for any other reason the party sees fit.

Yesterday afternoon, a Democratic voter in Nashville officially contested the Democratic qualifications of Angelita (“Angie”) Dalton, who is running for Criminal Court Judge.  In August of last year, before being elevated to Criminal Court Judge by Republican Governor Bill Haslam, then-General Sessions Judge Dalton apparently contributed $250.00 to the Republican Party of Tennessee after attending a GOP fundraiser headlined by Vice President Mike Pence:

The donation appears to implicate some judicial ethics issues—Rule 4.1(A)(4) of Tennessee’s Code of Judicial Conduct prohibits sitting judges from “mak[ing] a contribution to a political organization”—but Judge Dalton’s primary concern is certain to be political.  Given most Tennessee Democrats’ outright revulsion to Vice President Pence, to the Trump White House, and to the Tennessee Democratic Party’s chief political opponent (the Republican Party of Tennessee) in general, Democrats, it seems, are not pleased.

It should first be noted that despite their pervasiveness, political parties are private organizations that enjoy a First Amendment right to set their own rules and determine the terms of their association.  The Supreme Court has held over and over again that governmental interference with a private group’s membership requirements “may impair the ability of the original members to express only those views that brought them together.” [1]  In Roberts v. U.S. Jaycees, for example, the U.S. Supreme Court held that “[f]reedom of association therefore plainly presupposes a freedom not to associate.”[2]   The Supreme Court has also made clear that this freedom is at its zenith when it comes to political parties’ “right to choose their own standard-bearers.”[3]

Enter Judge Dalton’s $250.00 contribution to the Tennessee Democratic Party’s chief political rival.  Can she still run as a Democrat despite that donation, or is such a contribution grounds for disqualification?  If the TNDP would like to disqualify her—which it has no obligation to do—the answer is that Judge Dalton can absolutely be disqualified from running in the upcoming Democratic Primary.  Some Democrats (like the author, for instance), have also called for more robust enforcement of the Democratic Party brand to prevent people like Sheriff David Clarke from ruining it.  Whether the TNDP will act on the pending petition to disqualify Judge Dalton, however, is a different question entirely.

Tennessee law expressly provides—as it must—that “[a] party may require by rule that candidates for its nominations be bona fide members of the party.”  See Tenn. Code Ann. § 2-13-104.  Tennessee law also provides that the state executive committee of a political party “with which a primary candidate filed [a qualifying] petition” is empowered to “determine[] that the candidate is not qualified” and have him or her removed from the party’s primary ballot.  See Tenn. Code Ann. § 2-5-204(a).

In determining whether a candidate qualifies as a “bona fide” Democrat, the TNDP’s bylaws helpfully include a specific definition.  Specifically, they provide:

“A bona fide Democrat is defined as an individual whose record of public service, actions, accomplishment, public writings and/or public statements affirmatively demonstrates that he or she is faithful to the interests, welfare and success of the Democratic Party of the United States and of the State of Tennessee. The State Party or a county party may make exceptions to this rule for requesting individuals in the spirit of an inclusive and a growing Party.”

Whether Judge Dalton’s contribution to the Tennessee Republican Party indicates that she is not “faithful to the interests, welfare and success of the Democratic Party” is an unreviewable question that only the TNDP is equipped to answer.  If past is prologue, the TNDP is also unlikely to act on the challenge, in which case Judge Dalton would remain qualified to run as a Democrat.  As to whether the TNDP is permitted to disqualify her from doing so, however, the law is equally clear: it can.

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[1] Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252, 82 L. Ed. 2d 462 (1984).

[2] Id. (emphasis added).

[3] Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 453, 128 S. Ct. 1184, 1192, 170 L. Ed. 2d 151 (2008) (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359, 117 S. Ct. 1364, 1370, 137 L. Ed. 2d 589 (1997)).

Estate of Jocques Clemmons Files Suit Over Social Media Search Warrants

Nashville, TN—The Estate of Jocques Scott Clemmons, the Nashville man who was fatally shot in the back by Metro Nashville Police Officer Joshua Lippert on February 10, 2017, has filed a lawsuit regarding the MNPD’s successful efforts to search his social media accounts following his death.

Days after Mr. Clemmons was killed, MNPD Officer Danny Satterfield filed three separate search warrant applications seeking “any/all data contained and/or stored within” Mr. Clemmons’ Facebook account, Instagram account, and cellular telephone.  Without any stated time or content limitation whatsoever, the warrants specifically sought Mr. Clemmons’ “pictures, videos, audio, text messages, incoming/outgoing Facebook Messanger [sic] conversations, voicemails, chat logs, contact information, call logs, emails, internet data, Wi-Fi data, IP address(es), search history, maps, locations, GPS data, drafts, deleted files/folders, etc.”  Officer Satterfield also sought nearly identical information from Mr. Clemmons’ Instagram account and cell phone.

Mr. Clemmons was already deceased at the time of Officer Satterfield’s warrant applications.  Accordingly, he was not subject to arrest for any crime.  Even so, Officer Satterfield claimed that the warrants were necessary to investigate an “aggravated assault” that Mr. Clemmons had committed against Officer Lippert.  Notably, however, video released prior to Officer Satterfield’s warrant applications had already revealed that the altercation that Officer Satterfield claimed to be investigating had not occurred.

Officer Satterfield’s warrant applications stated under oath that he had probable cause to believe that all of the data on Mr. Clemmons’ social media accounts and cell phone contained evidence of Mr. Clemmons’ supposed aggravated assault against Officer Lippert.  In a subsequent statement, however, the MNPD acknowledged that whether Mr. Clemmons’ social media accounts or cell phone contained any relevant evidence was, in fact, “unknown.”  Based on the warrants’ lack of probable cause and several other constitutional deficiencies, Mr. Clemmons’ estate has filed suit seeking the return of all property seized as a result of Officer Satterfield’s defective search warrants.

“Mr. Clemmons’ Facebook and Instagram accounts had no conceivable bearing on the supposed crime that the MNPD claimed to be investigating, and Officer Satterfield’s comically unconstitutional warrant applications did not even bother to pretend that they did,” said Nashville attorney Daniel Horwitz, who filed the lawsuit on behalf of Mr. Clemmons’ estate.  “Further, at the time that Officer Satterfield applied for the search warrants at issue, there was literally nobody on earth who was less likely to be arrested than Mr. Clemmons, who had been deceased for nearly a week.  These search warrants could not have been any less valid if they were written in crayon.”

“We hope that the Mayor and the MNPD will do right by Mr. Clemmons’ family by returning his cell phone and relinquishing whatever private information they pulled from his social media accounts in their effort to assassinate his character,” Horwitz added.

The lawsuit was filed in the U.S. District Court for the Middle District of Tennessee.  The plaintiff’s pleadings are copied below.

Plaintiff’s Complaint

MNPD Search Warrants and Search Warrant Applications

###

Selected Media Coverage

The Tennessean: A year after Jocques Clemmons’ death, police still have his phone. His family wants it back.

The Nashville Scene: It’s Been One Year Since the Jocques Clemmons Shooting

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Tennessee Supreme Court Reforms Eligibility Rules for Foreign Attorneys

By Daniel A. Horwitz:

In an order issued late Friday afternoon, the Tennessee Supreme Court officially reformed its rules to provide a clear path for international lawyers to obtain licensure in Tennessee.  The Court’s amendment to Tennessee Supreme Court Rule 7 § 7.01, which governs admission requirements for attorneys educated in foreign jurisdictions, comes on the heels of a recent win by attorney Maximiliano Gluzman, whose victory before the Tennessee Supreme Court last summer made national news.

Despite acknowledging that Gluzman—who had graduated Vanderbilt Law School’s LL.M program with an eye-popping 3.919 GPA while competing against American J.D. students in his second language—was “obviously very, very qualified,” the Tennessee Board of Law Examiners still attempted to prevent him from taking the Tennessee bar exam because he had received his first law degree from Argentina.  After getting the Board’s denial overturned last August, however, Gluzman is set to take the Tennessee bar exam next month.  Based on the Court’s reforms, other international lawyers will now be able to follow his lead.

“The Tennessee Supreme Court should be applauded for implementing this sensible rule change, which will significantly benefit consumers, provide Tennesseans greater access to new markets, and help solidify Tennessee’s increasingly large role in conducting international business,” said Daniel Horwitz, Gluzman’s attorney.  “We’re proud to have set this change in motion, and we’re thrilled that other qualified international lawyers will now be able to follow in Mr. Gluzman’s footsteps.”

Tennessee’s law schools—which can now offer LL.M. programs with confidence that they will offer practical value to graduates—welcomed the news as well.   “We’re pleased that the Court was willing to revisit the rule and provide greater clarity to prospective students and law schools,” University of Tennessee College of Law Associate Dean for Academic Affairs Alex B. Long told the Nashville Post.

The Court’s rule changes were formally prompted by a joint petition initiated by the University of Tennessee College of Law and Vanderbilt Law School, which the two law schools had filed in support of Gluzman during his litigation against the Board.  Previously, based on the Board’s former interpretation of Tennessee Supreme Court Rule 7 § 7.01, lawyers “from the vast majority of countries around the world” were forever prohibited from taking the Tennessee bar exam regardless of their ability or qualifications, since only a handful of jurisdictions follow the American model of separate undergraduate and legal degrees.  As a result of the Court’s amendments, however, foreign attorneys are now eligible to take the Tennessee bar exam if they satisfy either of the following two criteria:

First, foreign lawyers can take the bar exam if an approved credential evaluation service determines that their foreign education was “substantially equivalent” to an American legal education.  In evaluating an applicant’s foreign education, approved credential services will focus primarily on the scope of the applicant’s curriculum, whether an applicant received instruction in common law, and the number credit hours that applicants completed in their home countries.  Thereafter, if the evaluation service determines that an applicant’s education was substantially equivalent to an American legal education, the applicant will be permitted to take the Tennessee bar exam.  During Gluzman’s case, the Board formally conceded that notwithstanding its prior interpretation of the rule, this standard should not be construed as requiring separate undergraduate and legal degrees.

Second, foreign lawyers who have actively practiced law “for at least five of the eight years prior to applying to take the Tennessee bar” are eligible to take the Tennessee bar exam if they obtain either an “LL.M. Degree from a law school that is accredited by the ABA” or an LL.M. degree from a Tennessee law school approved by the Tennessee Supreme Court.  Thus, obtaining an LL.M. degree—which is essentially a master’s degree in American law—can “cure” a defect in an applicant’s foreign education, thereby allowing the applicant to sit for the Tennessee bar exam after graduating.

Critically, however, all applicants must also pass the Tennessee bar exam before they will be able to practice law in Tennessee.  This, of course, is no easy feat, especially given the number of foreign attorneys who would be taking the exam in their second language.  Even for many American-educated students, the bar exam often proves insurmountable.  For example, over the past few years, the failure rate among Nashville School of Law graduates has consistently hovered around 70%.

Taken together, the Court’s reforms should be universally applauded.  Ensuring that Tennessee’s businesses have access to high quality international lawyers is critical to several of the state’s leading industries, from agriculture to automobile manufacturing to intellectual property to any number of additional sectors in between.  As such, attracting foreign legal talent—which is currently concentrated in jurisdictions like New York, Texas, California—will quickly benefit both Tennessee’s businesses and consumers alike.

Selected news coverage about the case is available at the following links:

-Nashville Post: Supreme Court amends bar eligibility rules

-Nashville Post: Supreme Court rules Argentine can take Tennessee Bar

-Bloomberg: Argentine LL.M. With 3.9 GPA Wins Bid to Take Tenn. Bar Exam

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

-Nashville Post: National conservative groups join local bar fight

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

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

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

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

-Beacon Center Blog: Banned From the Bar Exam

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Court Denies Relief in Eighth Amendment Challenge to School Zone Law

Nashville, Tennessee—In an order issued earlier this morning, Calvin Bryant, a former college student and beloved Hillsboro High School football star who received a 17-year mandatory minimum sentence for a first-time, non-violent drug offense, was denied sentencing relief by Criminal Court Judge Steve Dozier.  The injustice of Mr. Bryant’s sentence garnered substantial local and national media attention, in part because his first-time, non-violent drug offense landed him a punishment that was more severe than the sentence that he would have received had he committed a violent crime like Rape or Second Degree murder.  Mr. Bryant—who has already served a decade in prison—had also received an outpouring of support from national advocacy groups and elected officials across the political spectrum.  Judge Dozier’s order denying him relief is accessible here.

“[I]n certain situations, such as with the Petitioner, a strict interpretation and enforcement of the Act can lead to sentences that courts and some members of the community would be hard-pressed to describe as fair.  This is especially true in Davidson County, where much of the county, and especially those areas with a higher concentration of minority populations, falls within the ambit of the Act,” the Court wrote in its Order.  However, “while the Court recognizes the Petitioner’s contention that his sentence is severe, the Court is of the opinion that the sentence is not so unjust as to give rise to an inference of gross disproportionality.  Thus, the Court must find the Petitioner’s sentence is constitutional,” the Order reads.

“While we respect the Court’s opinion, the fact that Tennessee law punishes first-time, non-violent drug sales between adults more harshly than violent crimes like rape and murder cannot be justified under any rational sentencing scheme,” said Daniel Horwitz, Bryant’s attorney.  “We continue to believe that Mr. Bryant’s mandatory minimum sentence is grossly disproportionate based on applicable precedent, and I have every expectation that this opinion will ultimately be overturned.”

The Court’s order also expressly encourages Mr. Bryant and his many supporters to seek clemency from the Governor, which he will do while his appeal is pending.  “In order to secure Mr. Bryant’s early release from his grossly excessive sentence, I intend to petition Governor Haslam to commute Mr. Bryant’s first-time, non-violent drug offense to the “lesser” offense of rape,” Horwitz stated.

Selected Media Coverage

-Patch:  Nashville Case Highlights Drug-Free School Zone Reform Efforts

-Reason: How a Drug-Free School Zone Sent a Tennessee College Student to Prison For 17 Years

-Nashville Scene:  Council Members Petition Judge Over Drug-Free School Zone Case

-The Tennessean:  He got 17 years for selling drugs near school. Now 12 Nashville officials are fighting on his behalf

-ScotBlog: Eighth Amendment Challenge Filed Against Tennessee’s “Drug Free School Zone” Law

-Families Against Mandatory Minimums: Calvin Bryant: 17 Years for a First Offense/FAMM Reacts to Denial in Calvin Bryant’s Drug-Free School Zone Case

-The Tennessean:  Judge agrees man’s 17-year sentence for dealing drugs is ‘harsh,’ but leaves it in place

Selected Case Filings

Calvin Bryant Petition for Sentencing Relief

Appendix

Order

###

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