Tag Archives: Constitutional Law

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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Sixth Circuit Upholds Vote On Amendment 1

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

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

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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White County Judge Acknowledges Sterilization-For-Jailtime Deal Still Active; Plaintiffs Seek to Terminate the Program

After a furious national uproar in response to an inmate sterilization program instituted by White County General Sessions Judge Sam Benningfield, in late July of this year, Judge Benningfield publicly announced that he had formally rescinded his previous standing order instituting the sterilization program, which had been compared to eugenics.  Although dozens of inmates had been surgically sterilized by the time the order was “rescinded,” news coverage of the scandal subsided immediately, permitting the fallout from the sterilization program to continue virtually uncovered.

In a recent filing, however, Judge Benningfield and White County Sheriff Oddie Shoupe—who are currently being sued over the sterilization program—acknowledged that the order purporting to rescind the program actually “did not renege on the offer of a 30-day reduction in the jail sentence[s]” of inmates who agreed to be sterilized after all.  This concession confirms concerns that had been raised by the attorney for the inmates who have sued over the program, whose lawsuit alleged that:

“Despite claiming to be an ‘Order Rescinding [his May 15, 2017] Standing Order,’ however, Defendant Benningfield’s July 26, 2017 Supplemental Order states unequivocally that inmates who fail to ‘demonstrate[] to the court their desire to improve their situations and take serious and considered steps toward their rehabilitation by having the [specified long-term surgical sterilization] procedures or agreeing to have same’ will still be incarcerated for 30 days longer than similarly situated inmates who do acquiesce to surgical sterilization.”

Judge Benningfield and Sheriff Shoupe, who have both been named as defendants in the lawsuit over the sterilization program, have asked a federal judge to dismiss the lawsuit against them.  In response to their concession that the inmate sterilization offer is still active, however, on Monday, the Plaintiffs sought an immediate declaratory judgment that Judge Benningfield’s ongoing sterilization program is unconstitutional.  “This program is outrageous, it is morally indefensible, and it’s illegal,” attorney Daniel Horwitz, who is representing the inmates, stated at the outset of the lawsuit.  Selected documents from the case are available below:

Selected Case Documents:

Plaintiff’s Amended Complaint for Injunctive and Declaratory Relief

Defendants’ Notice of Removal

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

Plaintiffs’ Motion for Estoppel Based on Defendant Benningfield’s Public Reprimand

Defendants’ Response in Opposition to Estoppel Based on Defendant Benningfield’s Public Reprimand

Defendants’ Response in Opposition to Partial Summary Judgment

Plaintiffs’ Reply to Defendants’ Response in Opposition to Partial Summary Judgment

Selected Media Coverage:

-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

-ScotBlog: Lawsuit Seeks to End White County’s Ongoing Sterilization Program

 

Slate: If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers.

By Daniel A. Horwitz:

Late last month, the Supreme Court announced that it would hear Janus v. AFSCME, a case that challenges public-sector unions’ right to collect fees from nonmembers. Such “fair share” fees have been a legal bedrock of labor unions since the Supreme Court’s 1977 ruling in Abood v. Detroit Board of Education.  In Abood, the court held that unions could lawfully charge fees to non–union members to help offset the costs of “collective bargaining, contract administration, and grievance adjustment” from which all employees benefit, as long as the union does not use such fees for political purposes.  Continue reading Slate: If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers.

Lawsuit Seeks to End White County’s Ongoing Sterilization Program

An inmate in White County, Tennessee, has filed a lawsuit in White County Chancery Court seeking to put an end to an ongoing sterilization program instituted by White County General Sessions Judge Sam Benningfield.  Under the program, White County inmates who refuse to submit to long-term surgical sterilization are required to serve jail sentences that are 30 days longer than similarly situated inmates who agree to be sterilized.  The lawsuit—filed directly against Judge Benningfield and the White County Sheriff—asks the Chancery Court to declare Judge Benningfield’s sterilization program unconstitutional and prevent the Sheriff from enforcing it.

“This program is outrageous, it is morally indefensible, and it’s illegal,” said attorney Daniel Horwitz, who is representing the inmate.  “We fully expect the Chancery Court to put an end to this abusive and reprehensible program and ensure that it never returns again.”

“Eugenics is illegal in Tennessee and across the United States,” the lawsuit reads.  “Tennessee law provides absolutely no authority to institute or enforce such a program, and both the Tennessee Constitution and the United States Constitution forbid it.  From mass sterilizations in Nazi Germany to eugenics experimentation in Tuskegee, Alabama, eugenics is anathema to any conception of morality and represents one of the most disturbing chapters in the dark history of human cruelty.  Judge Benningfield’s eugenics program should be—and must be—declared illegal and permanently enjoined as a result.”

Judge Benningfield’s sterilization program gained national attention after White County District Attorney Bryant Dunaway expressed concerns about the program’s rank illegality and immorality to a reporter in July 2017.  Thereafter, Judge Benningfield partially rescinded his standing order in response to national outcry.  Because Judge Benningfield’s supplemental order still provides that inmates who refuse to be sterilized must serve sentences that are 30 days longer than those who agree to surgical sterilization, however, the program is still ongoing.

In addition to asking the Court to declare the program unconstitutional, the lawsuit seeks to “[e]njoin the Defendants from subjecting the Plaintiff to an additional 30 days of incarceration for exercising his constitutional right to reproductive freedom.”  It further asks the Court to award the Plaintiff attorney’s fees and have the fee award “donated to the United States Holocaust Memorial Museum and the Tuskegee History Center.”

Selected media coverage regarding the program appears below:

-Judge under scrutiny for offering reduced sentences for vasectomies, birth control implants

-White County Inmates Given Reduced Jail Time If They Get Vasectomy

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

Tennessee judge rescinds inmate sterilization-for-freedom program

Judge to inmates: Get sterilized and I’ll shave off jail time

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Breaking: Foreign Vanderbilt Law School Graduate Wins Right to Take the Tennessee Bar Exam

By Daniel A. Horwitz

Maximiliano Gluzman, the “obviously very, very qualified” Vanderbilt Law School graduate who was denied the opportunity even to take the Tennessee Bar Exam, has officially won his case before the Tennessee Supreme Court.  Based on the Court’s order approving his petition, Mr. Gluzman will be able to take the upcoming bar exam scheduled for February 2018.

“We conclude that the requirements of section 7.01 should not be applied to preclude Mr. Gluzman from taking the Tennessee bar examination,” the Court held in a per curiam order.  “As a result, the BLE may not hereafter rely upon section 7.01 of Rule 7 as a basis to deny Mr. Gluzman permission to take the Tennessee bar examination.”  The Court’s order is available here.

“We are ecstatic that the Tennessee Supreme Court has vindicated Mr. Gluzman’s claim that he was wrongfully denied the opportunity to take the Tennessee Bar Exam,” said Daniel Horwitz, Mr. Gluzman’s attorney.  “Mr. Gluzman is as qualified to practice law as any attorney in Tennessee, and he will be a tremendous asset to the legal profession.  Justice was served today.”

The briefing in Gluzman v. BLE featured the participation of three leading national conservative groups, which argued that the Board’s crippling regulations violated Mr. Gluzman’s fundamental right to earn a living free from irrational government overreach.  Tennessee’s two flagship law schools—Vanderbilt Law School and the University of Tennessee College of Law—also filed petitions in the case after seeing students disenroll from their law programs once the Board began implementing its protectionist regulations.  All parties’ briefs from the case are available below.

Petitioner Maximilano Gluzman’s Principal Brief

Brief of Respondent the Tennessee Board of Law Examiners

Petitioner Maximiliano Gluzman’s Reply Brief

Brief of Amici Curiae The Beacon Center, Cato Institute, and Goldwater Institute

Petition of Vanderbilt Law School and University of Tennessee College of Law

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

-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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Tennessee Advisory Committee to the U.S. Commission on Civil Rights Holds Comprehensive Hearing on Civil Asset Forfeiture

By Daniel A. Horwitz

In what may well have been the most comprehensive hearing on civil asset forfeiture ever held, the Tennessee Advisory Committee to the U.S. Commission on Civil Rights held a day-long hearing on Tennessee’s forfeiture laws at the Nashville Public Library on Monday, July 24th.  The hearing featured testimony from District Attorneys past and present, police officers, legislators, attorneys, scholars, local and national advocacy groups, individuals affected by Tennessee’s forfeiture laws, and others interested in the topic.  Video footage of the Committee’s hearing is available at the links that follow:

U.S. Commission Opening Remarks and Introduction

Panel 1—Law Enforcement

Panelists: Glenn R. Funk (District Attorney, Nashville and Davidson County);  D. Michael Dunavant (District Attorney, Tennessee’s 25th Judicial District, President Trump’s nominee for U.S. Attorney for the Western District of Tennessee); Stephen D. Crump (District Attorney, Tennessee’s 10th Judicial District); Carlos Lara (Lieutenant, Metro Nashville Police Department)

Panel 2—Legislators

Panelists: State Representative Mike Carter (R-Ooltewah); State Representative John Ray Clemmons (D-Nashville); State Representative William G. Lamberth (R-Cottontown); State Representative Martin Daniel (R-Knoxville); State Representative Harold M. Love, Jr. (D-Nashville); State Representative G.A. Hardaway (D-Memphis)

Panel 3—National and State Organizations

Panelists: Vikrant Reddy (Senior Research Fellow, Charles Koch Institute); Lee McGrath (Senior Legislative Counsel, Institute for Justice); Hedy Weinberg (Executive Director, ACLU of Tennessee); Julie Warren (State Director, Tennessee/Kentucky Right on Crime)

Panel 4—Practitioners and Academics

Panelists: George Frank Lannom (Tennessee Association of Criminal Defense Lawyers);  Joy Radice (Professor of Law, University of Tennessee College of Law); John Morris Miles (Attorney, Union City); Ben Raybin (Attorney, Nashville); Kyle Mothershead (Attorney, Nashville); Elliot Ozment (Attorney, Nashville)

Panel 5—Advocacy Organizations

Panelists: Jackie Sims (Tennessee State Conference of the NAACP); Christopher M. Bellamy (President, Napier-Looby Bar Association); Samuel Lester (Street Outreach and Advocacy Coordinator, Open Table Nashville)

The hearing record will remain open for public comment until August 23, 2017.  If you would like to submit comments for consideration, please email Jeff Hinton, Southern Regional Director for the U.S. Commission on Civil Rights, at jhinton@usccr.gov.  Following the conclusion of the public comment period, the Tennessee Advisory Committee will consider all commentary and prepare a final report and recommendation.

Selected press coverage of the hearing is available below.

-Fox 17:  Tenn. Attorneys say law enforcement wrongfully benefits from drug seizures

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