A special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims, the Tennessee Supreme Court has held.
The Tennessee Supreme Court had previously held that in order to protect a defendant’s right to due process under the Tennessee Constitution, a special jury instruction is required in certain cases involving both kidnapping and a more serious criminal offense, such as robbery, burglary or rape. The basis for this special jury instruction – which is known as a “White” instruction in light of the eponymous Tennessee Supreme Court case State v. White[1] – traces back to the Tennessee Supreme Court’s earlier decision in the 1991 case State v. Anthony.[2] In Anthony, the Tennessee Supreme Court recognized that “the offense of kidnapping. . . at times ‘could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.’”[3]
Stated differently, because “[i]t is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained,” the Anthony court expressed concern that a defendant could be convicted for two separate crimes –kidnapping as well as a more serious crime – when the defendant had only truly committed the more serious crime.[4] In other words: “Where a defendant is charged with kidnapping and an accompanying offense involving some confinement . . . , there are appropriate due process concerns that the defendant could be convicted of two crimes—e.g. robbery and kidnapping—when he has only committed one crime—robbery.”[5] More simply, as one Court of Criminal Appeals Judge once explained the issue: “I do not believe the legislature intended robbers to be prosecuted as kidnappers.”[6]Continue reading Tennessee Supreme Court holds that a special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims.→
In the latest round of litigation over the constitutionality of Tennessee’s death penalty protocol, thirty-five death-sentenced inmates[1] filed a lawsuit against several Tennessee prison officials challenging the constitutionality of the electric chair as a method of execution. The inmates’ claims in this particular case arose out of Tennessee’s “Capital Punishment Enforcement Act” (CPEA), which is codified at Tenn. Code Ann. § 40-23-114(e). Following nationwide difficulties securing the chemicals necessary to implement Tennessee’s pre-existing lethal injection protocol, the state legislature enacted the CPEA in 2014 in an effort to permit the use of the electric chair as an alternative method of execution should the requisite lethal injection chemicals be unavailable.
The U.S. Court of Appeals for the Second Circuit has officially weighed in on an issue that looks increasingly likely to reach the U.S. Supreme Court: Whether laws that promote pure economic protectionism — known in economic terms as “rent seeking” — are prohibited by the 14th Amendment to the Constitution. As this blog has previously explained, with Nashville’s voters contemplating adding a “local hire” provision to the Metropolitan Charter this August, this debate appears poised to return to Tennessee soon as well.
The Second Circuit’s opinion helpfully outlines the divergence of authority that has emerged with respect to this issue, noting:
In recent years, some courts of appeals have held that laws and regulations whose sole purpose is to shield a particular group from intrastate economic competition cannot survive rational basis review. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir. 2013) (“[N]either precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose[.]”); Merrifield v. Lockyer, 547 F.3d 978, 991, n.15 (9th Cir. 2008) (“[M]ere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review.”); Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (“[P]rotecting a discrete interest group from economic competition is not a legitimate governmental purpose.”). The Tenth Circuit, on the other hand, has squarely held that such a protectionist purpose is legitimate. See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004) (“[A]bsent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest.”).
Ultimately, the majority opinion flatly concludes that: “economic favoritism is rational for purposes of our review of state action under the Fourteenth Amendment.”
Rejecting the majority’s conclusion on this point, however, the similarly informative concurring opinion penned by Judge Christopher Droney reaches a directly contrary view. Judge Droney explains:
[T]here must be at least some perceived public benefit for legislation or administrative rules to survive rational basis review under the Equal Protection and Due Process Clauses. As the majority acknowledges, only the Tenth Circuit has adopted the view that pure economic protectionism is a legitimate state interest. See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004). Two of the circuits that reached the opposite conclusion expressly rejected the Tenth Circuit’s approach. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222‐23 (5th Cir. 2013); Merrifield v. Lockyer, 547 F.3d 978, 991 n.15 (9th Cir. 2008).
I agree with the Fifth Circuit’s reasoning in St. Joseph Abbey, particularly insofar as it disputes the Tenth Circuit’s reliance in Powers on the very Supreme Court cases that the majority cites in support of its holding here. See St. Joseph Abbey, 712 F.3d at 222 (“[N]one of the Supreme Court cases Powers cites stands for that proposition [that intrastate economic protectionism is a legitimate state interest]. Rather, the cases indicate that protecting or favoring a particular intrastate industry is not an illegitimate interest when protection of the industry can be linked to advancement of the public interest or general welfare.” (emphasis in original)); see also Powers, 379 F.3d at 1226 (Tymkovich, J., concurring) (“Contrary to the majority . . ., whenever courts have upheld legislation that might otherwise appear protectionist . . ., courts have always found that they could also rationally advance a non‐protectionist public good.” (emphasis in original)).
A review of the Supreme Court decisions confirms the Fifth Circuit’s conclusion that some perceived public benefit was recognized by the Court in upholding state and local legislation. . .
As this author has previously noted, the U.S. Court of Appeals for the Sixth Circuit — which has jurisdiction over Tennessee — was the first Circuit court to resolve this issue, holding in Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) that: “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.” The Tennessee Supreme Court has reached a similar conclusion with respect to the Tennessee Constitution, concluding in Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956) that: “Although [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”
Whether this line of authority will cause Nashville’s local hire ordinance to be invalidated — and whether the U.S. Supreme Court will definitively answer the question to resolve the growing divergence of authority — only time will tell.
Questions about this article? Email Daniel Horwitz at [email protected].
A Victim was injured in a car accident, and he sought chiropractic services from the Plaintiff, Action Chiropractic Clinic. Prior to receiving the chiropractic services, the Victim signed a contract with an “Assignment of Rights” clause. In pertinent part, the Assignment of Rights clause stated:
For treatment provided, I hereby require my Health Insurance, Auto Insurance, or any other party involved to pay by check and mail directly to: ACTION CHIROPRACTIC
. . . .
For the medical expense benefits allowable, and otherwise payable to me under the current Insurance Policy, as payment toward the total charges for Professional Services rendered.
The Assignment of Rights clause specifically named Erie Insurance Exchange as the policy holder. Of note, however, Erie Insurance Exchange was not the Victim’s insurance company. Instead, Erie Insurance Exchange was the insurance provider for the driver who had injured the Victim in the car accident.
Action Chiropractic Clinic ultimately charged the Victim $5,010.00 for its chiropractic services. Shortly thereafter, Erie Insurance Exchange entered into a settlement with the Victim and paid him $8,510.00 for all claims relating to the car accident. However, neither the Victim nor Erie Insurance Exchange paid Action Chiropractic Clinic anything for the chiropractic services that it rendered to the Victim. As a result, Action Chiropractic Clinic sued both the Victim and Erie Insurance Exchange seeking payment, among other things, under the “Assignment of Rights” provision. Continue reading Tennessee Supreme Court holds that insurance assignment clause was ineffective.→
A massive jury verdict finding the railroad company CSX liable for causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial on the damages awarded to the employee’s widow, the Supreme Court of Tennessee has held.
Between 1962 and 2003, Winston Payne worked for CSX Transportation as a switchman, a switch foreman, and a brakeman. Less than three years after he retired, he was diagnosed with lung cancer. In 2007, Mr. Payne filed a lawsuit against CSX both under the Federal Employers’ Liability Act and based on a common law negligence theory, alleging that CSX had negligently exposed him to asbestos, diesel engine exhaust fumes, and radioactive materials, and further alleging that CSX had violated several statutes and regulations designed to protect the safety of railroad employees. According to Mr. Payne, all of these failures contributed to his developing lung cancer.
In contrast, CSX contended that Mr. Payne had instead developed lung cancer due to his history of cigarette smoking. Furthermore, CSX contended if the jury decided to award damages to Mr. Payne based upon its negligence, then any damages award should be reduced by virtue of the impact of Mr. Payne’s cigarette smoking. Mr. Payne died from lung cancer in 2010, and his widow continued the lawsuit in his place.
On August 6, 2015, Davidson County voters will head to the polls to vote on Metro Charter Amendment 3, which has been dubbed the “local hire” amendment. If enacted, the crux of Amendment 3 is that 40% of the work performed on taxpayer-funded construction projects within Davidson County would legally have to be set aside for Davidson County residents.
In recent weeks, opposing advocates have expressed their views on Charter Amendment 3 in editorials published in The Tennessean. First, on June 22, 2015, union organizer and community activist Ashford Hughes penned the op ed: “[A] Vote for Charter Amendment 3 is [a] vote for local jobs,” in which he argued – among other things – that “[i]t makes no sense to bring in out-of-county and out-of-state hires when so many Nashville construction workers, engineers and skilled tradesmen and women are out of work.” Making the contrary case, on June 30, 2015, Nashville Area Chamber of Commerce President Ralph Schulz penned the op ed: “Vote no on Amendment 3: It sounds good, but won’t work,” contending that the measure “would translate to longer delays on Metro construction projects and more money coming out of taxpayers’ pockets.” Various other interested parties have also weighed in on the matter in recent days, disputing the referendum’s likely policy ramifications.
In yet another round of litigation concerning Tennessee’s medical malpractice statute (known as the Health Care Liability Act, or the HCLA), the Tennessee Supreme Court has held that litigants may use commercial carriers like FedEx to deliver pre-suit notice letters. This holding is significant because the HCLA specifically provides that pre-suit notice letters must be delivered by “the United States postal service.”[1] Thus, by excusing a plaintiff’s technical non-compliance with the HCLA’s service requirement, the Court’s decision in Arden v. Kozawa represents a further extension of the “substantial compliance doctrine,” which this author has previously described as “the rule that ‘close is close enough.’”[2] Furthermore, Arden represents yet another iteration of the Court’s view that “[s]o long as a health care defendant is not prejudiced” by a plaintiff’s procedural errors, “substantial compliance with . . . statutory requirements will suffice.”[3]
The underlying law in Arden was not in dispute. Before filing a medical malpractice claim, Tennessee law “require[s] medical malpractice plaintiffs to satisfy six pre-suit ‘notice requirements[.]’”[4] Those requirements include, for example, providing a medical malpractice defendant (usually a doctor or a hospital): (1) “[t]he full name and date of birth of the patient whose treatment is at issue;”[5] (2) “[t]he name and address of the attorney sending the notice, if applicable;”[6] and (3) “[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.”[7] Of note, the HCLA also states that plaintiffs must demonstrate that pre-suit notice was actually provided to defendants through either “[p]ersonal delivery of the notice”[8] or “[m]ailing of the notice.”[9]
If a plaintiff chooses to mail the notice, rather than hand-delivering it (something that avoids a great deal of angst, as nobody—doctors included—enjoys being personally served with notice of an impending lawsuit), then the HCLA states that proof of mailing: “shall be demonstrated by filing a certificate of mailing from the United States postal service[.]”[10] In Arden, the plaintiff’s attorney admitted that Continue reading FedEx can deliver HCLA pre-suit notice letters, too, holds Tennessee Supreme Court→
On May 27, 2010, Terrence Feaster savagely beat his housemate, dragged her into a bedroom, tied her feet to an entertainment center, and threatened to kill her if she moved. Mr. Feaster was subsequently arrested and indicted for his crimes. Following a trial, a jury convicted him of voluntary manslaughter, aggravated assault, and false imprisonment. Over Mr. Feaster’s objection, the trial court declined to “merge” any of his convictions, meaning that it did not eliminate any of them for being duplicative.
Approximately two years after Mr. Feaster’s crimes, the Tennessee Supreme Court decided State v. Watkins.[1]Watkins adopted a new test for determining when multiple convictions for offenses that arise under different statutes must be merged in order to avoid violating Tennessee’s Double Jeopardy clause.[2] Importantly, Watkins also expressly abandoned the earlier (four-factor) merger test that the Tennessee Supreme Court had established in State v. Denton.[3] For various reasons, the Denton rule was more favorable to criminal defendants than the Watkins rule, which is now in effect today. Under the current Watkins standard, courts must conduct the following three-factor inquiry to determine whether a defendant’s convictions must be merged:
First: “Tennessee courts must focus upon ascertaining legislative intent. If the General Assembly has expressed an intent to permit [or not to permit] multiple punishment, no further analysis will be necessary, and multiple convictions should be upheld against a double jeopardy challenge.”[4]
Today was a major decision day at the Supreme Court of the United States. Although the Court released only two opinions, both of today’s decisions carry enormous social import in Tennessee and throughout the nation. Each also represents a major victory for the Obama Administration, which secured wins in support of its health care and housing policies. The day’s two decisions were as follows:
In 2010, Congress passed the Patient Protection and Affordable Care Act (“the ACA”), which has since been derided by many as “Obamacare.” Among other provisions of the law, the ACA sought to make insurance more affordable by giving refundable tax credits to individuals with household incomes that fell between 100 percent and 400 percent of the federal poverty line.
The ACA also required the creation of an “Exchange” in each state, which is essentially a marketplace that allows people to compare and purchase health insurance plans. The Act afforded each state the option of establishing its own Exchange, but it also provided that the federal government would establish “such Exchange” if a state chose not to establish its own exchange. At issue in this case, the ACA further provided that tax credits “shall be allowed” to any “applicable taxpayer,” but only if the taxpayer had enrolled in an insurance plan through “an Exchange established by the State[.]” Thus, the specific question presented in this case was whether tax credits would be available on all exchanges, or whether they would only apply to exchanges established by states.
Held: Tax credits are available to individuals in states that have a federal exchange. According to the Supreme Court: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” Consequently, based on the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” tax credits are available to individuals who purchase health insurance on either a federally-created or a state-created insurance exchange.