Tag Archives: Constitutional Law

Tennessee Supreme Court Denies Proposed Rule Change Attempting to Police Discrimination and Harassment

Constitutional Law, Rules of Professional Conduct,

By Daniel A. Horwitz

Earlier today, the Tennessee Supreme Court rejected a proposed rule change that would have subjected attorneys to professional discipline for expressing views that could be considered discriminatory or harassing.  The proposed changes were roundly criticized as an overbroad infringement upon attorneys’ constitutionally protected rights to freedom of speech and association.  The controversial rule received nearly 400 pages of commentary from members of the bar, members of the public, and interested organizations.

Model Rule of Professional Conduct 8.4(g) was initially drafted by the American Bar Association in August of 2016 as an effort to curb discrimination and harassment in the legal profession.  Thereafter, several prominent national commentators promptly criticized it, and to date, nearly every jurisdiction that has considered the proposed change has rejected it.

On November 15, 2017, the Tennessee Board of Professional Responsibility and the Tennessee Bar Association filed a joint petition asking the Tennessee Supreme Court to adopt an amended version of Rule of Professional Conduct 8.4(g).  The proposed amendments would have made certain forms of discrimination and harassment subject to professional sanction, with several exceptions.

Despite its laudable goals, the proposed amendments suffered from serious shortcomings.  As this author noted in a recent Nashville Post article on the proposal:

“Although motivated by good intentions, proposed Rule 8.4(g) is a constitutionally infirm speech code that suffers from several critical flaws. First, it is wildly overbroad; it would, for example, prohibit attorneys from restricting their pro bono practice to female victims of domestic violence or to members of their church, because doing so would constitute sex discrimination and discrimination on the basis of religion, respectively. Second, it grants the Board of Professional Responsibility immense new regulatory authority to punish attorney speech, and based on the BPR’s long history of selective enforcement and a curious exemption in 8.4(g) that makes clear that exercising ‘peremptory challenges . . . on a discriminatory basis does not alone establish a violation,’ it is fair to say that the BPR should not be trusted with such vast censorial authority. Third, more generally, it gives the Government the power to determine what kind of speech is permissible and what kind of speech is illegal—a deeply troubling and downright dangerous proposition that cannot be squared with basic principles of the First Amendment.”

In a formal opinion released in March, the Attorney General of Tennessee similarly concluded that the proposal was unconstitutional.

Upon review, the Tennessee Supreme Court issued a per curiam order denying the BPR’s and TBA’s joint petition.  “The Court has carefully considered the BPR and TBA’s proposed amendment, the comments received, including the points and issues raised therein, and this entire matter. Upon due consideration, the BPR and TBA’s petition to adopt a new Rule 8, RPC 8.4(g) is respectfully DENIED. It is so ORDERED,” today’s Order reads.  The Court’s formal denial is accessible here.

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Tennessee Needs to Provide More Protection to People Sued for Defamation

Constitutional Law, First Amendment, ,

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

Constitutional Law, Election Law, ,

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

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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.

Constitutional Law, Criminal Law, First Amendment, ,

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.

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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

Constitutional Law, Criminal Law, Criminal Procedure, Fourth Amendment, ,

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?

Constitutional Law, Election Law, ,

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

Constitutional Law, Criminal Law, Criminal Procedure,

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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Sixth Circuit Upholds Vote On Amendment 1

Constitutional Law, Election Law, , ,

In a decision issued earlier this morning, the U.S. Court of Appeals for the Sixth Circuit formally upheld Tennesseans’ 2014 vote to ratify Amendment 1 to the Tennessee Constitution.  The amendment provided that:

“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

Following the referendum election—which Tennesseans supported by a margin of 53%-47% in a contest involving nearly 1.4 million voters—opponents of the amendment challenged the results of the election in federal court, arguing that state officials should have disqualified the votes of anyone who declined to vote in the Governor’s race.  The challengers’ claim was premised upon a reading of an inartfully drafted provision of Tennessee’s Constitution, which states that:

“[I]f the people shall approve and ratify such amendment or amendments by a
majority of all the citizens of the State voting for Governor, voting in their favor,
such amendment or amendments shall become a part of this Constitution.”

Although initially accepted by the now-vacated decision of the District Court, the challengers’ reading of the above provision had several critical problems.  Among them, the novel interpretation that they demanded had never previously been applied in any referendum election in Tennessee’s history.  Most importantly, however, as the Yes On 1 Committee argued in an amicus brief filed in the Sixth Circuit, the challengers’ position would have unconstitutionally caused “the votes of tens of thousands of qualified voters—as many as eighty thousand, by some estimates—[to] be subject to wholesale invalidation for no other reason than that the voters who cast them did not support any candidate for governor.”  The same deficiency was noted in an editorial penned by Daniel Horwitz, Yes On 1’s eventual election counsel, in a 2014 op ed published in the Tennessean.

The Sixth Circuit’s opinion held that for purposes of the federal lawsuit, a separate state court decision that had previously determined that all votes in a referendum election must be counted regardless of whether or not a voter had voted in the Governor’s race was entitled to preclusive effect.  In a footnote, however, the Sixth Circuit also explained that it would have reached the same conclusion independently, noting that:

“[P]laintiffs’ preferred reading of the text of Article XI, Section 3, while not implausible on its face, would be patently unreasonable in effect. Not only would their proposed construction—requiring a voter to vote for governor as a prerequisite to casting a valid vote on Amendment 1—contravene longstanding practice and pre-election instructions published to the public, and effectively nullify the votes of thousands of citizens; it would also conflict with another provision of the Tennessee Constitution. Article IV, Section 1 prohibits the imposition of any additional qualification to vote, beyond age, U.S. citizenship, state residency, and registration. To adopt plaintiffs’ proposed interpretation would be to run afoul of our obligation, in construing state law, “to avoid constitutional difficulty” when fairly possible.”

“The issues involved in this lawsuit had absolutely nothing to do with abortion,” said Daniel Horwitz, election counsel for the Yes On 1 Campaign. “Instead, this was a direct challenge to pro-life voters’ right to vote itself, and fortunately, the right to vote won. Anybody who cares about the integrity of the democratic process should be both gratified and reassured by this outcome.”

The Sixth Circuit’s decision in the case is available here.

Selected Case Documents:

–Brief of the “Yes On 1” Campaign as Amicus Curiae

–Sixth Circuit Opinion Reversing District Court

–Sixth Circuit Order Denying En Banc Review

Selected Media Coverage:

-The Tennessean: Appeals court won’t reconsider Tennessee abortion measure decision

-Patch: Federal Court Denies Challenge To Tennessee Abortion Amendment

-Yes on 1: Yes on 1 Files State Court Motion on Behalf of Disenfranchised Voters

-The Tennessean: Amendment 1 plaintiffs on shaky legal ground

-The Tennessean: Appeals court upholds vote count on Tennessee abortion measure Amendment 1

-The Tennessean: Fate of Tennessee abortion measure Amendment 1 now up to appeals court

-Pro Life News: Tennessee: Pro-Life Win as Judge Says State Counted Votes Correctly on Amendment 1

-News Channel 5: Vote Counting For Tennessee Abortion Measure Argued In Federal Court

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Memphis Immigrant Wins Freedom Following U.S. Supreme Court Victory

Constitutional Law, Criminal Law, Criminal Procedure, Sixth Amendment, ,

By Daniel A. Horwitz:

Memphis, Tennessee—A Memphis man who secured a groundbreaking win before the U.S. Supreme Court this summer has officially won his freedom after a nearly nine-year legal battle to avoid being deported.  At the request of the U.S. Attorney for the Western District of Tennessee, the indictment against Mr. Lee was formally dismissed earlier this month, and his case is finally over.

In 2009, Mr. Jae Lee—a South Korean immigrant and successful Memphis restaurateur—was indicted for what the U.S. Court of Appeals for the Sixth Circuit described as “a relatively small-time drug offense.”  Thereafter, Mr. Lee pleaded guilty based on the advice of his defense attorney, who assured Mr. Lee that he would not be deported if he did so.

Unfortunately for Mr. Lee, his attorney’s advice was wrong, and spectacularly so.  Under federal immigration law, possession of ecstasy with intent to distribute is considered an “aggravated felony,” rendering Mr. Lee deportable immediately.  Consequently, when the Government initiated deportation proceedings against him, Mr. Lee sought to withdraw his guilty plea, asserting that his attorney had ineffectively assisted him by misadvising him about the consequences of pleading guilty.  Noting the strong evidence of his guilt, however, the District Court refused to allow Mr. Lee to withdraw his guilty plea, and the Sixth Circuit affirmed the District Court’s decision.

Ultimately, the United States Supreme Court agreed to hear Mr. Lee’s case in order to clarify the legal standard that governs ineffective assistance of counsel claims with respect to immigration-related plea bargaining.  In a 6-2 opinion, the Supreme Court held that “Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.”[1]  As a result, the Supreme Court permitted Mr. Lee to withdraw his guilty plea and proceed to trial instead.

The two dissenting Justices who ruled against Mr. Lee—Clarence Thomas and Samuel Alito—held that Mr. Lee could not have been prejudiced by his attorney’s incompetent advice because Mr. Lee intended “to pursue a defense at trial with no reasonable chance of success.”[2]  As this author explained in his 2016 Harvard Latino Law Review article on the matter, however, this analysis is overly simplistic in several respects, and it significantly mischaracterizes the relevant prejudice inquiry.

Further, the notion that a weak defense necessarily means that a defendant will be convicted at trial is also quite simply wrong.  Several reasons support this conclusion, including the fact that the Government retains discretion not to take a case to trial at all for any reason.  As the above-mentioned article explains: “longstanding precedent entrusts to the Executive Branch’s ‘absolute discretion’ all decisions ‘not to prosecute or enforce, whether through civil or criminal process.’”  See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 8 (2016).  Accordingly, no matter how strong the evidence of a defendant’s guilt, all immigrants “are potentially eligible for relief from deportation [and from being criminally prosecuted at all] through the Executive Branch’s use of prosecutorial discretion.”

Mr. Lee’s case aptly proves this point.  After the Supreme Court permitted Mr. Lee to withdraw his guilty plea back in June, the U.S. Attorney’s Office filed a motion to dismiss the indictment against him.  No specific reason was offered to justify the Government’s decision, and because prosecutorial discretion is absolute, the Government is not obligated to provide one.  If anyone were looking for a reason to support the U.S. Attorney’s decision to drop the charges, however, one need look no further than the Sixth Circuit’s opinion in Mr. Lee’s own case, which explained—in a ruling against him—that:

“[W]e should not be read as endorsing Lee’s impending deportation. It is unclear to us why it is in our national interests—much less the interests of justice—to exile a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small-time drug offense.”[3]

Ultimately, the Government’s decision to drop the case represents a tremendous win for Mr. Lee and his new lawyer, Mr. Patrick McNally, who was part of Mr. Lee’s Supreme Court team and secured the final dismissal of his indictment.  “[S]omeone finally understood the harm that his [first] lawyer’s advice caused him,” Mr. McNally told The Tennessean after the Supreme Court’s ruling in June.

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[1] Lee v. United States, 137 S. Ct. 1958, 1961 (2017).

[2] Lee v. United States, 137 S. Ct. 1958, 1969 (2017) (Thomas, J., dissenting).

[3] Lee v. United States, 825 F.3d 311, 316–17 (6th Cir.), cert. granted, 137 S. Ct. 614 (2016), and rev’d and remanded, 137 S. Ct. 1958 (2017).

White County Judge Sam Benningfield Publicly Reprimanded for Instituting Inmate Sterilization Program, Retaliating Against Defendants

Constitutional Law, Criminal Law, ,

White County General Sessions Judge Sam Benningfield, the architect of a controversial sterilization-for-jailtime program that has been compared to eugenics and is the subject of a pending federal lawsuit, has been publicly reprimanded by the Tennessee Board of Judicial Conduct.  The Board’s Order, entered November 20, 2017 and accessible here, concludes that Judge Benningfield violated Code of Judicial Conduct Rule 1.1 (Compliance with the Law) and Rule 1.2 (Promoting Confidence in the Judiciary).

Benningfield was publicly reprimanded for two separate incidents, both of which are referenced in this federal lawsuit against him.

First, Benningfield was found to have retaliated against a defendant for registering a valid hearsay objection—threatening to withdraw the entire county’s house arrest program and inform other defendants in the county that “they can thank [her]” for what happened if she failed to do so.  The defendant’s attorney ultimately withdrew his hearsay objection following Judge Benningfield’s threat.

Second, and more prominently, Judge Benningfield was found to have instituted an illegal sterilization-for-jailtime program in White County, Tennessee.  “[Y]ou now realize that this [program] could unduly coerce inmates into undergoing a surgical procedure which would cause at least a temporary sterilization, and it was therefore improper,” the public reprimand states.

Last week, several inmates who sued over the program sought an immediate order terminating it on the basis that it was still pending and violates the 14th Amendment.  The public reprimand indicates that since the inmates’ most recent filing, Judge Benningfield has entered an order ending the program.

Notably, the Board of Judicial Conduct’s public reprimand stops short of recommending Judge Benningfield’s removal from office.  (Attorney Daniel Horwitz, who is representing the inmates who sued Judge Benningfield, has previously stated that “if Judge Benningfield will not resign his office, he should be removed.“)   If sterilizing inmates and retaliating against defendants who exercise their rights in his courtroom does not merit removal, however, one might reasonably wonder what a judge could do that would.  Selected documents from the lawsuit filed against Judge Benningfield are available below.

–Plaintiffs’ Amended Complaint for Injunctive and Declaratory Relief

–May 15, 2017 Standing Order

–July 26, 2017 Order Rescinding Previous Standing Order

–Defendants’ Motion to Dismiss

–Plaintiffs’ Response in Opposition to Motion to Dismiss

–Plaintiffs’ Motion to Certify State Law Claims

–Plaintiffs’ Motion for Partial Summary Judgment

Selected media coverage about the case

-The Washington Post: Tennessee judge reprimanded for offering reduced jail time in exchange for sterilization

-The Tennessean: 2nd lawsuit challenges Tennessee county’s inmate birth control practice

-WSMV Channel 4: Judge under scrutiny for offering reduced sentences for vasectomies, birth control implants

-BBC News: ‘We were guinea pigs’: Jailed inmates agreed to birth control

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