Tag Archives: Daniel Horwitz

Revealing Disturbing Gap in Tennessee Law, Tennessee Supreme Court Rules that Allegedly Retarded Death Row Inmate Is Not Entitled to Prove that He’s Retarded

Constitutional Law, Criminal Procedure, Tennessee Constitutional Law, , , ,

By Daniel Horwitz:

Pervis Payne is a death row inmate in Tennessee who may well be mentally retarded.  Significantly, both the United States and Tennessee Constitutions forbid the Government from executing mentally retarded people.  In a unanimous 4-0 opinion, however, the Tennessee Supreme Court has ruled that under Tennessee law, Mr. Payne is not allowed to prove that he is mentally retarded to a court.

Pervis Payne was convicted of murder and sentenced to death in 1988.  Thereafter, both the Tennessee Supreme Court and the U.S. Supreme Court ruled that under the Tennessee and U.S. Constitutions, executing mentally retarded people is cruel, unusual, and categorically forbidden.  Additionally, in 1990, the Tennessee legislature enacted a law providing that: “Notwithstanding any law to the contrary, no defendant with mental retardation at the time of committing first degree murder shall be sentenced to death.”[1]  Following these developments, an individual cannot lawfully be executed if the individual has:

(1) Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below;

(2) Deficits in adaptive behavior; and

(3) The [individual’s] intellectual disability . . . manifested during the developmental period, or by eighteen (18) years of age.

Because all of these legal developments came only after Mr. Payne’s conviction, however, Mr. Payne has never had a hearing on the issue of his alleged mental retardation.  Nonetheless, there is strong reason to believe that he is indeed mentally retarded.  Among other indications, for example, Mr. Payne’s scores from multiple IQ tests administered between 1976 and 2010 all place him within or very near the range of mental retardation.  Significantly, one IQ test that was administered when he was nine years old produced a raw IQ score of 69.  If accurate, such a score would definitively establish Mr. Payne’s mental retardation so long as Mr. Payne could also prove that he has deficits in adaptive behavior.

After reviewing several of Mr. Payne’s IQ tests and evaluating Mr. Payne personally, Dr. Daniel J. Reschly—a professor of education and psychology at Vanderbilt University—recently stated in a sworn affidavit that Mr. Payne “has significant deficits in adaptive behavior due to substantial limitations in the conceptual skills and practical skills domain.”  Based on Mr. Payne’s consistently low IQ scores, his deficits in adaptive behavior, and the fact that Mr. Payne has been intellectually disabled since he was a child, Dr. Reschly also concluded under oath that Mr. Payne satisfies the established constitutional criteria for mental retardation, which would prohibit the Government from executing him.

Armed with this evidence, on April 4, 2012, Mr. Payne’s attorneys attempted to invoke several different procedures under Tennessee law in an effort to win Mr. Payne an evidentiary hearing on his mental retardation claim.  However, the trial court summarily denied all of Mr. Payne’s claims without holding a hearing.  Ultimately, the case reached the Tennessee Supreme Court.

In adjudicating Mr. Payne’s case, the Tennessee Supreme Court was called upon to decide what procedural mechanism Mr. Payne might use to go about proving that he is mentally retarded.  Unfortunately for Mr. Payne, however, the Tennessee Supreme Court ruled that as far as Tennessee law is concerned, no such procedure exists.

a.  Standard Post-Conviction Claim

Under Tennessee law, the traditional procedure for challenging a conviction that has become final is to file a “post-conviction petition.”  Post-conviction petitions are governed by Tenn. Code Ann. § 40-30-101, which is appropriately called the “Post-Conviction Procedure Act.”  Because Tennessee law recognizes what the Tennessee Supreme Court has described as the Government’s “interest[] in preserving the finality of judgments,”[2] however, only certain claims are eligible for consideration.  Specifically, in order to obtain post-conviction relief, defendants must prove that either their convictions or their sentences violate a right that is “guaranteed by the Constitution of Tennessee or the Constitution of the United States.”[3]

Notably, the Post-Conviction Procedure Act also imposes a strict one-year statute of limitations for filing post-conviction petitions.  Specifically, Tenn. Code Ann. § 40-30-102(a) provides that absent exceptional circumstances, a defendant’s post-conviction petition must be filed “within one (1) year of the date on which the judgment became final, or [else] consideration of the petition shall be barred.”  In more cases than not, this one-year statute of limitations operates to foreclose defendants from getting their claims into court at all regardless of their merit.  Why, one might wonder?  The answer is that most defendants in Tennessee are not aware of the strict one-year requirement, and since convicted defendants generally do not have the right to an attorney until after they have filed a post-conviction petition, they often learn about the one-year limitations period only after it has expired.[4]

With respect to the first requirement—that a conviction or sentence violate either the U.S. or Tennessee Constitutions—Mr. Payne’s claim unquestionably qualified.  In December of 2001, the Tennessee Supreme Court held that “the execution of a mentally retarded individual violates the Eighth Amendment to the United States Constitution and article I, § 16 of the Tennessee Constitution.”[5]  Barely six months later, in June of 2002, the U.S. Supreme Court followed suit, holding that the Eighth Amendment to the U.S. Constitution “places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”[6]  Thus, because Mr. Payne asserted that his death sentence was unconstitutional in light of his mental retardation, this claim qualified for post-conviction review.

Unfortunately for Mr. Payne, however, these constitutional developments came more than a decade after he was convicted.  Accordingly, the traditional one-year requirement for filing a post-conviction petition had long expired.  As a consequence, Tennessee law prohibited Mr. Payne from having his post-conviction claim heard by a court unless he could “re-open” his post-conviction proceeding by proving that the new rule at issue applies retroactively.

b.  “Re-opening” a Post-Conviction Claim Under Retroactivity Exception

The question of whether a new constitutional rule of criminal procedure applies retroactively is one of the most complex inquiries in constitutional law.  It has also repeatedly befuddled the Tennessee Supreme Court, which has reversed itself on the issue at least four times in the past twenty years[7] only to arrive—in 2014—at a standard that conspicuously conflicts with the text of the standard that it was attempting to adopt.[8]  During the intervening chaos, the Court of Criminal Appeals occasionally applied multiple retroactivity standards to defendants’ claims because it could not parse the Tennessee Supreme Court’s jurisprudence on the matter.[9]

At present, however, the statutory retroactivity standard codified in the Post-Conviction Procedure Act governs retroactivity claims.[10]  This statute provides that new rules apply retroactively if they either: (1) “place[] primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” or (2) “require[] the observance of fairness safeguards that are implicit in the concept of ordered liberty.”  Confusingly, however, with respect to the second rule, the Court held in 2014 that the Tennessee legislature actually intended to adopt “the federal standard from Teague v. Lane,” rather than the “implicit in the concept of ordered liberty” standard that actually appears in the statute.[11]  Thus, at present, the text of the second portion of Tenn. Code Ann. § 40-30-122 is to be ignored in favor of the second Teague v. Lane exception, which provides that retroactivity attaches to “new procedures without which the likelihood of an accurate conviction is seriously diminished.”[12]

Mercifully, the federal judiciary has held unmistakably that the Eight Amendment’s prohibition on executing mentally retarded people applies retroactively to all cases because it places the Government’s ability to execute a certain class of people beyond the Government’s power.[13]  Consequently, there is no doubt that both the Tennessee Supreme Court’s December 2001 decision prohibiting the execution of mentally retarded people and the U.S. Supreme Court’s similar June 2002 decision apply retroactively to Mr. Payne.  Accordingly, one might be forgiven for believing that Mr. Payne would be entitled to a hearing on his mental retardation claim.

Unfortunately for Mr. Payne, however, the aforementioned statute that allows defendants to “re-open” their post-conviction petitions when a new rule is retroactive also provides that even “if retrospective application of [a] right is required,” the petition to re-open the case “must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial[.]”[14]  Whether it violates fundamental fairness to apply such a strict time limitation—or any time limitation—to mentally retarded people; and whether the Government is even permitted to leverage short, strict statutes of limitations in order to insulate itself from otherwise meritorious claims that the Government is attempting to act in excess of its constitutional authority are serious questions for another day.  In this case, however, because Mr. Payne did not file his post-conviction petition until 2012, the court held that his claim was time-barred.  Had he filed his claim at any time between December 2001 and June 2003, though, then there is absolutely no question that he would have been granted relief.

Undiscouraged, Mr. Payne’s attorneys also attempted to use the U.S. Supreme Court’s more recent decision in Hall v. Florida as the “hook” to allow him to get back into court.  In Hall—which was decided in May 2014—the Supreme Court struck down Florida’s death penalty statute because it failed to account for standard error in a defendant’s IQ scores.  According to the Supreme Court, such a rigid requirement “misuse[d] IQ score on its own terms[.]”[15]  Thus, following Hall, “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”[16]

Consequently, the question for Mr. Payne became whether the rule announced in Hall was retroactive, too.  Given its recency, only two courts in the United States had addressed this issue at the time that Mr. Payne’s case was heard, and each reached a bitterly contested, 2-1 decision under the time-pressure of an imminent execution.[17]  In both cases, a two-judge majority concluded that Hall was not retroactive because it merely established new procedures for determining whether a defendant was mentally retarded, rather than establishing another substantive restriction on punishment.

There are, however, strong reasons to doubt this claim.  Most convincingly, Hall unquestionably restricted the universe of people that the Government is permitted to execute—a result that bears all the hallmarks of a substantive ruling.  Specifically, before Hall, individuals with an IQ above 70 were subject to being executed.  After Hall, however, some number of individuals with an IQ above 70 are constitutionally prohibited from being executed.  Like Atkins, such a result is one of substance in that it “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense.”[18]

Unfortunately, the Tennessee Supreme Court did not engage any of this analysis.  Instead, it merely held that because Mr. Payne was unable to identify any “federal appellate decision holding that Hall must be applied retroactively to cases on collateral review,” the court “decline[d] to hold that Hall applies retroactively.”  Consequently, Mr. Payne was not permitted to re-open his post-conviction proceeding on the basis of Hall’s retroactivity, either.

c.  Writ of Error Coram Nobis

As an alternative to the post-conviction statute, Mr. Payne’s attorneys also filed a petition for writ of error coram nobis.  Historically, the common law writ of error coram nobis has served as a “gap-filler” which was invoked “to rectify a recognized wrong when all other possible remedies are no longer available.”[19]  In Tennessee, for example, the writ has been used to correct judgments upon the subsequent discovery of a factual error “which, if known at the time of judgment, would have prevented the judgment from being pronounced.”[20]

Subsequently, however, the Tennessee legislature enacted a coram nobis statute that significantly limited the writ’s application.  Among other things, the legislature imposed a one-year statute of limitations for coram nobis actions and restricted the relief that it provides to factual errors only (rather than legal errors).[21]  It has never been clear whether the statutory writ of coram nobis operated to replace and supersede the common law writ,[22] and indeed, the answer to that question is still not entirely clear even following the Court’s decision in Payne.[23]  Given the one-year statute of limitations contained in the writ of error coram nobis statute, however—and after indicating that Mr. Payne’s claim was more appropriately characterized as a legal claim rather than a factual one—the Court denied Mr. Payne coram nobis relief as well.

d.  Free-Standing Claim Under Tenn. Code Ann. § 39-13-203

Positing yet another procedural vehicle for his claim, Mr. Payne’s attorneys also argued that he had a free-standing claim under Tenn. Code Ann. § 39-13-203 (the “Intellectually Disabled Defendants/Capital Punishment” statute), which was enacted approximately one year after Mr. Payne was convicted.  In pertinent part, this statute provides that: “Notwithstanding any law to the contrary, no defendant [who was mentally retarded] at the time of committing first degree murder shall be sentenced to death.”

Unfortunately for Mr. Payne, however, the Tennessee Supreme Court already ruled on the retroactivity of Tenn. Code Ann. § 39-13-203 back in 2001.  In that case, the court concluded that “although the issue as to retroactive application of the statute [wa]s close,”[24] Tenn. Code Ann. § 39-13-203 only applied prospectively.  Disappointingly, the court’s analysis on this point completely failed to engage the question of whether Tenn. Code Ann. § 39-13-203 was substantive or procedural, which is traditionally what governs the inquiry under Tennessee law.[25]  Notably, the case also serves as a prime example of why the late Justice Scalia railed against the use of legislative history in interpreting statutes—which can frequently be manipulated to arrive at whatever decision a reviewing judge would prefer to reach.

Specifically, when it decided the issue in 2001, the court noted that during the 1990 legislative session, a specific amendment was introduced in the State Senate that would have explicitly provided that Tenn. Code Ann. § 39-13-203 applied only prospectively.[26]  The amendment failed and was withdrawn, which one might think would suggest that the legislature disagreed with it and wanted the statute to apply retroactively.  Not so, apparently.  After hypothesizing that “the legislature’s failure to clearly provide for retroactive operation may have been a product of oversight or may have been based on the assumption that no prisoner then on death row was mentally retarded,” the court concluded that “notwithstanding the presence of some ambiguous language in the statute and in the legislative history, there is no evidence of a clear legislative intent to apply the statute retroactively as required by the general rule.”[27]  Accordingly, the court held that Tenn. Code Ann. § 39-13-203 applied only to cases after July 1, 1990.

Revisiting this issue again in Mr. Payne’s case, the Tennessee Supreme Court reaffirmed its 2001 holding in Van Tran that Tenn. Code Ann. § 39-13-203 does not apply retroactively.  Yet again, however, the Tennessee Supreme Court failed to ask whether the statute at issue was merely remedial in nature, which this author finds somewhat baffling.  Interestingly, the Court’s position that the Intellectually Disabled Defendants/Capital Punishment statute does not apply retroactively also shifted from a “close [call]” to an “inescapable conclusion” in Mr. Payne’s case.  Regardless, however, the end result was the same.  According to the court:  “[Mr. Payne] failed to establish that he has a private cause of action to pursue his claim of [mental retardation] pursuant to the intellectual disability statute.”

e.  Additional procedures?

According to a footnote in the court’s opinion, Mr. Payne’s attorneys also claimed that he had a right to an evidentiary hearing on his mental retardation claim under three other procedures available in Tennessee law: a declaratory judgment action; a motion to vacate an illegal sentence; and/or a petition for writ of audita querela.  The court declined to rule on any of these potential claims, however, as the record before it did not indicate that Mr. Payne had yet tried to pursue them.  Even so, the court implied that these procedures would not allow Mr. Payne to obtain an evidentiary hearing on his claim of mental retardation, either.  Accordingly, the court concluded its opinion by “encourag[ing] the General Assembly to consider whether another appropriate procedure should be enacted to enable defendants condemned to death prior to the enactment of the intellectual disability statute to seek a determination of their eligibility to be executed.”

It seems extremely unlikely that the General Assembly will accept this invitation.  Accordingly, as far as mentally retarded defendants who received death sentences after 1990 (and who did not have the benefit of effective counsel between 2001 and 2003) are concerned, the constitutional prohibitions against cruel and unusual punishment exist only in theory as a matter of Tennessee law.  Notably, however, this very likely does not mean that they will be executed.  Instead, it just means that Tennessee’s courts won’t hear the matter, and that federal courts will have to clean up the omission.

Read the Tennessee Supreme Court’s unanimous opinion in Payne v. Tennessee here.

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

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[1] 1990 Tenn. Pub. Acts 730, ch. 1038, § 1, codified at Tenn. Code Ann. § 39-13-203(b) (2014).

[2] Sample v. State, 82 S.W.3d 267, 282 (Tenn. 2002).

[3] Tenn. Code Ann. § 40-30-103.

[4] Occasionally, defendants also encounter some threshold procedural obstacles to filing post-conviction petitions that prevent them from meeting this deadline (not the least of which is trying to practice law without the assistance of an attorney).  For example, although notarization is not required by statute, the standard form for post-conviction petitions inexplicably requires a notary, and prisons are often slow to provide access to them.  Additionally, incarcerated defendants generally require a minimum degree of cooperation from prisons in order to file a post-conviction petition by mail, and in some instances, prison staff have been rumored to obstruct inmates from doing so.

[5] Van Tran v. State, 66 S.W.3d 790, 812 (Tenn. 2001)

[6] Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252, 153 L. Ed. 2d 335 (2002) (quotation omitted).

[7] Compare Meadows v. State, 849 S.W.2d 748, 755 (Tenn. 1993) (“we decline to apply the federal standard of retroactivity announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and hold that a new state constitutional rule is to be retroactively applied to a claim for post-conviction relief if the new rule materially enhances the integrity and reliability of the fact finding process of the trial.”); with Van Tran, 66 S.W.3d at 811 (appearing to hold that Meadows standard applies despite state statute adopting Teague standard); with Keen v. State, 398 S.W.3d 594, 601 (Tenn. 2012) (appearing to equate Meadows standard and Teague standard); with Bush v. State, 428 S.W.3d 1, 15 (Tenn. 2014) (expressly acknowledging difference between Meadows standard and Teague standard, holding that Tenn. Code Ann. § 40-30-122 codifies Teague standard, and holding that statutory standard prevails).

[8] See Daniel A. Horwitz, Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J.L. & Pol’y 215, 232 (2015) (noting that “[r]ather than applying the comparatively broad retroactivity standard that had in fact been included in the Post-Conviction Procedure Act, the Bush court instead held that an even narrower [] standard–which the court summarily concluded that the legislature must have “intended” to enact based upon a pair of confused statements made by the bill’s House sponsor nineteen years earlier–would henceforth govern retroactivity law in Tennessee.”), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2564583.

[9] See, e.g., Bush v. State, No. M2011-02133-CCA-R3PC, 2012 WL 2308280 *6-9 (Tenn. Crim. App. June 15, 2012).

[10] Bush v. State, 428 S.W.3d 1, 20 (Tenn. 2014).

[11] Id.

[12] Teague v. Lane, 489 U.S. 288, 313, 109 S. Ct. 1060, 1077, 103 L. Ed. 2d 334 (1989).

[13] See, e.g., In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (“there is no question that the new constitutional rule abstractly described in Penry and formally articulated in Atkins is retroactively applicable to cases on collateral review.”); Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002) (“In Atkins, the Supreme Court held at the end of its term that executing a mentally retarded individual violates the Eighth Amendment’s ban on cruel and unusual punishments. This holding applies retroactively; in Penry v. Lynaugh, when the question was last before it, the Court recognized that a constitutional rule barring execution of the retarded would fall outside Teague v. Lane’s ban on retroactive application of new constitutional rules because it placed the ability to execute the retarded ‘beyond the State’s power.’”) (internal citation omitted).

[14] Tenn. Code Ann. § 40-30-102(b)(1).

[15] Hall v. Florida, 134 S. Ct. 1986, 2001, 188 L. Ed. 2d 1007 (2014).

[16] Id.

[17] See Goodwin v. Steele, Nos. 14-3739, 14-3743, 2014 WL 11128597, at *2 (8th Cir. Dec. 9, 2014) (per curiam); In re Henry, 757 F.3d 1151, 1159-61 (11th Cir. 2014).

[18] Montgomery v. Louisiana, 136 S. Ct. 718, 728, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016) (internal quotations omitted); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“the Constitution places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”) (internal quotations omitted).

[19] Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012).

[20] State v. Mixon, 983 S.W.2d 661, 667 (Tenn. 1999)

[21] See Tenn. Code Ann. § 40-26-105; Tenn. Code Ann. § 27-7-102 & 103.  It is not clear that the criminal coram nobis statute – which mentions neither factual errors nor a statute of limitations period – actually compels this result, but the Tennessee Supreme Court has held as much nonetheless.

[22] To the author’s knowledge, the Tennessee Supreme Court also has never opined on whether a legislative effort to limit the application of a common law judicial writ would violate the Tennessee Constitution’s separation of powers doctrine.

[23] The Court suggests that the answer is “yes,” however, holding that an earlier case containing language that suggested considerably broader coram nobis relief than the coram nobis statute provides “d[id] not provide the Petitioner with a common law remedy in coram nobis.”

[24] Van Tran, 66 S.W.3d at 798.

[25] See, e.g., Shell v. State, 893 S.W.2d 416, 419 (Tenn. 1995) (“statutes affecting only the method or the procedure for prosecuting or defending a cause of action may be applied retroactively.  A remedial or procedural statute is one that does not affect the vested rights or liabilities of the parties.”).

[26] Van Tran, 66 S.W.3d at 798.

[27] Id.

Op Ed: Veto bill aimed at quelling sexual harassment claims

Civil Procedure

From today’s Tennessean, my op ed on proposed civil fee-shifting for claims against government officials:

___________________________________________________________________________

By Daniel Horwitz:

Imagine being a young legislative aide who is on the receiving end of unwanted sexual advances by her employer, a prominent state representative.  He frequently comments on your appearance and suggests that you start dressing in more revealing clothing.  He calls you late at night and asks you to meet him at local bars while his wife thinks he’s working.  One day, he summons you to his office, shuts the door, and gropes you.  When you resist, he warns you not to tell anyone.  The next day, after you decline his request to come in for another “private meeting,” he fires you.

What do you do?  If you can prove what happened in court, of course, then you can hold him accountable.  But if you sue, you also fear repercussions.  What will happen to your career?  Do you want a long, high-profile legal battle, and can you even afford one against someone who has the government’s vast resources at his disposal?  What if a jury doesn’t believe you?

One way that society attempts to correct this power imbalance is by requiring government wrongdoers to pay a victim’s legal fees if the victim’s lawsuit is successful.  Federal and state laws commonly include such “fee-shifting” provisions in order to incentivize people to file suit when their constitutional or civil rights have been violated.  Notably, such provisions also play an important role in promoting public policy, since society has a strong interest in rooting out misconduct like sexual harassment even when a victim’s monetary damages are insubstantial.

Following the legislature’s recent approval of SB2377/HB1679, however, Tennessee is on the verge of taking the opposite approach: requiring alleged victims to pay the government’s legal fees if a lawsuit against a government official is unsuccessful.  Significantly, this penalty also is not restricted to claims that are deemed frivolous or unfounded; instead, it would apply no matter why the allegations failed.  For example, even if a victim withdraws a lawsuit voluntarily because she runs out of money to keep fighting it, she would still be required to pay the government a crippling monetary penalty.

Like many lawsuits, sexual harassment claims frequently cost hundreds of thousand dollars to litigate.  It is also safe to assume that most people don’t have that kind of money lying around, so individuals who fail to win a lawsuit against state employees will often be forced to declare bankruptcy.  Tellingly, the legislature’s own fiscal impact report acknowledges this reality, stating that “there will not be a significant number of attorneys’ fee awards collected as a result of the bill.”  Consequently, SB2377/HB1679 cannot honestly be described as an effort to reimburse taxpayers for successfully defending against frivolous lawsuits, as its Senate sponsor Mike Bell claimed.  Instead, it’s a deliberate attempt to deter victims from bringing government officials’ wrongdoing to light in the first place.

The immediate effect of such a change will be to discourage victims of official misconduct from pursuing their claims in court at all.  Remarkably, this naked attempt to intimidate victims was also the top legislative priority of Tennessee Attorney General Herbert Slatery, who is supposed to be the one individual above all in Tennessee who is tasked with protecting the public interest.

Even more disturbingly, General Slatery promoted this “reform” while his office was supposed to be conducting an investigation into alleged misconduct by State Representative Jeremy Durham, who recently resigned his leadership post after being accused of sexually harassing three women who work at the statehouse.  Astoundingly, General Slatery has also stated unequivocally and without embarrassment that the purpose of SB2377/HB1679 is to ensure that such victims “have something at risk” if they decide to file suit.

It is difficult to overstate just how troubling it is that the Attorney General’s primary response to sexual harassment at the state Capitol has been to try to sweep it under the rug.  Simply put, General Slatery’s effort to intimidate victims in this manner is shameful, and it is beneath the dignity of his office.

The proper response to wrongdoing by government officials is to root it out, to punish it, and to prevent it from occurring in the first place—not to use the threat of bankruptcy to deter victims from coming forward.  Regrettably, SB2377/HB1679 would do, and is intended to do, just that.  It should be vetoed by Governor Haslam accordingly.

Daniel A. Horwitz is an attorney in Nashville.  Reach him at [email protected] and @Scot_Blog.

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Law Enforcement Investigative Files Are Not Public Records, Holds Tennessee Supreme Court

Tennessee Public Records Act, Victims' Rights

By Daniel Horwitz:

[Disclosure:  The author filed an amicus curiae brief in support of the victim in this case on behalf of four organizations committed to preventing domestic and sexual violence.  The author’s brief is accessible here.]

In one of the most eagerly anticipated and hotly contested decisions in recent memory, the Tennessee Supreme Court has ruled 4-1 that the Nashville Police Department’s investigative records concerning the Vanderbilt rape case are not subject to disclosure under the Tennessee Public Records Act.  The Court’s ruling comes approximately ten months after the case’s closely-watched oral argument, which pitted a vast media coalition headlined by The Tennessean against Metro government, the Tennessee Attorney General’s Office, and the alleged victim in the case, who intervened to protect her privacy under the pseudonym “Jane Doe.”

The lawsuit arose out of a public records request filed by The Tennessean in October of 2013, which sought access to records involving an alleged rape at Vanderbilt University that resulted in the arrest of four Vanderbilt football players.  Among other information, The Tennessean’s public records request sought text messages and videos that had been sent or created by third-party sources, such as then- Vanderbilt football coach James Franklin.

On October 23, 2013, Metro denied The Tennessean’s public records request.  Specifically, Metro contended that the requested records were part of an open criminal investigation and were thus exempt from public disclosure under Tennessee Rule of Criminal Procedure 16(a)(2), which prohibits “discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case.”  After The Tennessean filed suit in Davidson County Chancery Court seeking access to the requested records, the victim in the case intervened, arguing that her own private records – including a video recording of the alleged rape and her private text messages – were exempt from public disclosure under Tennessee’s victims’ rights laws.  After a full hearing, the trial court ruled that some, but not all, of the requested records were public.

Ultimately, the case reached the Tennessee Supreme Court.  Upon review, four of the Court’s five justices held that the police department’s entire investigative file was exempt from public disclosure under Tennessee Rule of Criminal Procedure 16(a)(1) and 16(b)(1).  The court also clarified that victims need not take any action to protect certain records from public disclosure following a defendant’s conviction.  At least for the time being, however, the full scope of victims’ privacy rights under Tennessee’s victims’ rights provisions remains unclear.

The Tennessee Public Records Act

As a general matter, all governmental records are considered public records under the Tennessee Public Records Act unless they are specifically exempted from disclosure.[1]  When the Tennessee Public Records Act was first adopted in 1957, it only provided for two such exemptions—medical records of patients in state hospitals, and military records involving national and state security.[2]  In the half-century since, however, the Tennessee legislature has systematically added more than forty additional statutory exemptions to the Tennessee Public Records Act.  For example, included among the Act’s restrictions is an exemption that prohibits public disclosure of student educational records and an exemption that blocks public disclosure of inmate emergency transfer plans.[3]

Additionally, the Tennessee Public Records Act has since been amended to include a “catch-all” provision that further restricts disclosure of records that are not specifically exempted by statute.  This provision establishes that requested records are not public if there is any other exemption to disclosure that is “otherwise provided by state law.”[4]  Notably, for purposes of this “catch-all” provision, “state law” has been interpreted to include other statutes, the Tennessee Constitution, Tennessee common law, rules of court, and administrative rules and regulations.[5]

Tennessee Rule of Criminal Procedure 16

The Court’s four-justice majority ruled that the records requested by The Tennessean were barred from disclosure under Tennessee Rule of Criminal Procedure 16.  Rule 16 governs the exchange of information between prosecutors and defense counsel in criminal cases.  Specifically, 16(a)(1) provides that upon request, “the state shall disclose” certain records “to the defendant.”  (16)(b)(1) further clarifies which records are “subject to disclosure,” specifying, for example, that “documents and tangible objects” and “reports of examinations and tests” must be disclosed to the defendant upon request.  Additionally, Rule 16(a)(2) specifies that certain records are not subject to disclosure.  Records that are not subject to disclosure under Rule 16(a)(2) – which embodies what is commonly recognized as a “work-product exemption” – include “documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case.”

Unlike the Tennessee Public Records Act, however, Rule 16 only governs the exchange of information between the government and a criminal defendant.  As a consequence, the majority ruled that “Rule 16 is the more specific provision and controls the discovery and disclosure of materials in a criminal case to the exclusion of the Public Records Act.”[6]  “Because Rule 16 does not provide for disclosure to a third party of materials subject to discovery between the State and a defendant,” the Court’s majority held, the public “cannot gain access to these materials under the Public Records Act.”[7]

The majority also contended that a contrary conclusion would produce absurd results.  Specifically, the court argued:  “If Rule 16 did not function as an exception to the Act, a defendant would have no reason to seek discovery under Rule 16, but would file a public records request and obtain the entire police investigative file, which could include more information than the defendant could obtain under Rule 16. . . .  This absurd result was not intended by the Legislature and would have a negative impact on [both] a police department’s ability to investigate criminal activity and a defendant’s ability to obtain a fair trial.”[8]

In dissent, Justice Gary Wade argued that Rule 16 does not provide such a blanket exemption for law enforcement records under the Tennessee Public Records Act.  Specifically, he noted, Rule 16 “is silent as to the dissemination of discovery information to the public,” and “silence in a rule is not affirmative law and is ordinarily irrelevant to the interpretation of the rule.”[9]  Further, he observed, as Justice Stewart once wrote in an opinion for the U.S. Supreme Court:   “In ascertaining the meaning of a [rule], a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark.”[10]

Addressing the majority’s distinction between records available to a defendant and records available to the public under Rule 16, Justice Wade also argued that “the majority’s conclusion rests upon . . . a failure to accord proper weight to the public nature of criminal proceedings.”[11]  Citing both the U.S. Constitution and the Tennessee Constitution for the proposition that in all criminal prosecutions, a defendant enjoys a constitutional right to a public trial,[12] he contended that such a distinction was unwarranted.  Accordingly, Justice Wade concluded, “Rule 16 does not prohibit public access to discoverable materials,”[13] and only the explicit restriction contained in Rule 16 – the work-product exemption – should govern.  As a result, Justice Wade held that third-party records that were received by law enforcement should be subject to disclosure under the Tennessee Public Records Act unless the records are exempt from disclosure under Tennessee law’s separate victims’ rights provisions.

Victims’ Rights

Because the majority’s opinion broadly concluded that Tennessee Rule of Criminal Procedure 16 exempts all police records from public disclosure during the course of a criminal prosecution, the majority did not directly address whether some of the requested records would also have been protected from disclosure under Tennessee’s victims’ rights laws.  This separate argument, however – which represented the position advocated by both the victim and the author on behalf of several domestic and sexual violence prevention advocates – was directly adopted by Justice Wade in dissent.  He wrote:

“Both article I, section 35 and section 40-38-102(a)(1), which are designed to insure protections to victims, qualify as ‘state law’ for purposes of the catch-all exception to disclosure under the TPRA.  Exceptions must be recognized pursuant to the catch-all provision when, as here, there is a significant risk that the disclosure of documents will contravene rights guaranteed by provisions in the Tennessee Code and the Tennessee Constitution.

. . . .

[Victims’ records] qualify for protection under the victims’ rights provisions—which . . . apply both during and after the prosecution.”

In this regard, Justice Wade’s opinion mirrors the separate opinion issued by Judge Neal McBrayer in the Tennessee Court of Appeals, who had similarly held that “victim’s rights under Article 1, § 35 of the Tennessee Constitution and Tennessee Code Annotated sections 40-38-101 through 506. . . . constitute ‘state law’ exceptions to the Public Records Act.”[14]  At present, however, whether the four justices representing the Court’s majority will embrace this view in a future case remains unclear.  Given that the only two jurists who have squarely addressed this claim have both ruled that Tennessee’s victims’ rights provisions protect certain private information about victims from public disclosure, though, and given that the majority’s opinion makes multiple overtures to the legislature’s “wise[]” decision to enact exemptions protecting victims’ private records from disclosure,[15] there is strong reason to believe they would.

Read the Tennessee Supreme Court’s majority opinion in Tennessean v. Metro. Gov’t of Nashville here, Justice Wade’s dissent here , and Justice Kirby’s concurrence here.

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

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[1] See, e.g., Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (noting that Tenn.Code Ann. § 10–7–505(d) “expressly sets up a presumption of openness to records of governmental entities” and that “the burden is placed on the governmental agency to justify nondisclosure of the records.”).

[2] Act of Mar. 18, 1957, ch. 285, 1957 Tenn. Pub. Acts 932.  See also Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App. 2004) (“As originally enacted, the public records statutes excepted only two classes of records from disclosure. These records included the medical records of patients in state hospitals and military records involving the security of the United States or the State of Tennessee.”).

[3] See Tenn. Code Ann. § 10-7-504(a)-(s).

[4] Tenn. Code Ann. § 10-7-503(2)(A) (2012).

[5] See Swift, 159 S.W.3d at 571-72 (“the General Assembly [] amended Tenn.Code Ann. § 10–7–503(a) by replacing the phrase ‘state statute’ with ‘state law.’ The change is significant for two reasons. First, it signaled a return to the General Assembly’s original understanding that statutes were not the sole source of exceptions from the public records statutes’ disclosure requirements. Second, it broadened the permissible sources of exceptions from disclosure to include not only statutes, but also the Constitution of Tennessee, the common law, the rules of court, and administrative rules and regulations because each of these has the force and effect of law in Tennessee.”) (citing Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 148 (Tenn.1993) (Constitution of Tennessee); Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 713 (Tenn.2002) (rules of court); Emery v. Southern Ry., 866 S.W.2d 557, 561 (Tenn.Ct.App.1993) (the common law); Kogan v. Tennessee Bd. of Dentistry, No. M2003–00291–COA–R3–CV, 2003 WL 23093863, at *5–6 (Tenn.Ct.App. Dec. 30, 2003) (No Tenn. R.App. P. 11 application filed) (administrative rules and regulations)).

[6] Tennessean v. Metro. Gov’t of Nashville, No. M201400524SCR11CV, 2016 WL 1084422, at *11 (Tenn. Mar. 17, 2016).

[7] Id.

[8] Id. at *10.

[9] Id. at *18 (Wade, J., dissenting) (citing State v. Collier, 411 S.W.3d 886, 897 (Tenn. 2013)).

[10] Id. (quoting Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 (1980)).

[11] Id.

[12] U.S. Const. amend. VI; Tenn. Const. art. I, § 9.

[13] Tennessean, 2014 WL 4923162, at *19 (dissenting opinion),

[14] Tennessean v. Metro. Gov’t of Nashville, No. M2014–00524–COA–R3–CV, 2014 WL 4923162, at *6 (Tenn. Ct. App. Sept. 30, 2014) (McBrayer, J., dissenting).

[15] Tennessean, 2016 WL 1084422, at *12.Tennessean, 2016 WL 1084422, at *12.

A win for substance over form: Tennessee Supreme Court holds that Tennessee’s one-year savings statute applies to tolling agreements.

Civil Procedure, Contract Law, ,

By Daniel Horwitz:

In an increasingly rare win for substantive law and justice over blind adherence to procedural technicalities, the Tennessee Supreme Court held in a 3-1 decision on Monday that Tennessee’s one-year savings statute applies to tolling agreements.

The case arose out of a legal malpractice dispute between a construction company and its law firm.  After the construction company found itself on the losing end of a $1.66 million judgment, the company notified its law firm that it was considering filing a malpractice claim against it.  Thereafter, the parties entered into an agreement that voluntarily extended the deadline for filing legal malpractice claims.  Pursuant to that agreement – known in legalese as a “tolling agreement” – the statute of limitations was extended by four months following the outcome of the company’s appeal.[1]  Notably, the tolling agreement also made no mention of Tennessee’s “savings statute,” the importance of which is discussed further below.

The company ultimately filed a legal malpractice lawsuit against its law firm on September 21, 2011.  Because the company’s appeal concerning its $1.66 million judgment had not yet been decided, there was also no doubt that based on the parties’ tolling agreement, the lawsuit was not time-barred.

Approximately seven months later, on April 16, 2012, the company voluntarily dismissed its lawsuit.  Like many other states, Tennessee has a “savings statute” that “allows a case that has been dismissed, for reasons other than a dismissal on the merits, to be refiled within a set period [of time]—even after the statute of limitations has run on the action.”[2]  Specifically, under Tennessee’s savings statute, a plaintiff that dismisses a lawsuit voluntarily is permitted to re-file the lawsuit “within one (1) year after” the dismissal.[3]

The Tennessee Supreme Court has explained on several occasions that the primary purpose of the savings statute is “to aid the Courts in administering the law fairly between litigants without binding them to minor and technical mistakes made by their counsel in interpreting the complexities of [Tennessee’s] laws of procedure.”[4]  In practice, though, the savings statute also provides several other benefits, such as giving parties an additional year to settle their claims, allowing a plaintiff to switch attorneys, or allowing an attorney to withdraw from a case after filing a lawsuit without unduly harming the plaintiff’s legal interests.  Thus, “the savings statute confers upon a plaintiff who files a second action within one year of a voluntary non-suit of a first action the same procedural and substantive benefits that were available to the plaintiff in the first action.”[5]

The company’s appeal was ultimately handed down on October 1, 2012.  Consequently, under the parties’ tolling agreement, the company’s (first) lawsuit had to be filed no more than four months later by January 29, 2013.  Because the company had already filed its first lawsuit and then taken a voluntary dismissal on April 16, 2012, however, the company relied on Tennessee’s savings statute for the proposition that it had an additional year after April 16, 2012 – meaning until April 16, 2013 – to re-file its claim.  Accordingly, the company re-filed its malpractice lawsuit on April 8, 2013.

The law firm ultimately filed a motion to dismiss the company’s second lawsuit on the basis that it had been filed too late.  According to the law firm, Tennessee’s savings statute did not apply to tolling agreements, and the company’s initial lawsuit had not been filed within the applicable statute of limitations.  Thus, the law firm argued, the merits of the company’s re-filed lawsuit could not be considered.

The hyper-technical justification offered to support the law firm’s position in this regard was that Tennessee’s savings statute applies only if an action “is commenced within the time limited by a rule or statute of limitation[.]”  Because, according to the law firm, the company’s lawsuit had only been commenced within the time permitted by the parties’ tolling agreement – rather than having been commenced within the time permitted by “a rule or statute of limitation” – Tennessee’s savings statute didn’t apply.

Upon review, a majority of the Tennessee Supreme Court summarily rejected this conclusion for several reasons.

First, the court explained, based on longstanding precedent, “the rights and obligations of contracting parties are governed by the law in effect when they entered into their contract, and existing law becomes as much a part of the contract as if specifically incorporated therein.”  Thus, the court reasoned, “in the absence of evidence of contrary intention, the parties must be held to have contemplated the application of [the savings statute] to the terms of their agreement.”

Second, the court held that even assuming that a tolling agreement itself doesn’t qualify as “a rule or statute of limitation,” the company’s first lawsuit had nonetheless been filed “within the time limited by [the] statute of limitation” because the parties’ tolling agreement had expressly “paused and extended the applicable statute of limitations.”  Accordingly, Tennessee’s savings statute had to be given effect.

Third, the court reiterated once again that “[b]ecause the savings statute is remedial, courts must give it a broad and liberal construction.”  Accordingly, the court concluded, when applying Tennessee’s savings statute, hyper-technical procedural claims should not prohibit a party’s lawsuit from going forward.

With these concerns in mind, the court held that “[i]f parties to a tolling agreement wish to foreclose application of the savings statute, they must include clear, explicit language in the tolling agreement to that effect.  Otherwise, without such explicit indication that the parties intend to circumvent the savings statute, it will normally apply.”  Accordingly, if parties that enter into tolling agreements wish to foreclose the application of Tennessee’s savings statute going forward, then the parties must specifically state in their tolling agreements that Tennessee’s savings statute is not intended to apply.

Commendably, the court’s majority decision in Circle C. Construction breaks a recent trend in decisions that have eschewed Tennessee’s longstanding tradition of “decid[ing cases] on the merits whenever possible,”[6] and have instead permitted “technical procedural hurdles to prevent otherwise valid claims from being adjudicated on their merits.”[7]  Specifically, following the recent retirements of Tennessee Supreme Court Justices Wade and Holder, civil plaintiffs have increasingly found themselves trapped by procedural obstacles that have prevented them from getting their claims past the courtroom door.  In particular, Justice Kirby has provided an especially reliable pro-civil defendant vote, having consistently voted to dismiss plaintiffs’ claims before a trial in employment cases, governmental tort cases, and in traditional tort cases like the one discussed above—in which Justice Kirby served as the court’s lone dissenter.

In fairness, however, Justice Kirby’s jurisprudential bent in favor of civil defendants can also be described as foreseeable in light of her tenure as a Court of Appeals judge.  For example, careful court-watchers will recall that one of the first cases decided by the Tennessee Supreme Court following Justice Kirby’s confirmation was a 4-0 decision by her future colleagues to reinstate a jury’s $3 million verdict in a retaliatory discharge action that then-Judge Kirby had dismissed while presiding as a member of the Court of Appeals.[8]  Where Justice Page – just confirmed by the General Assembly as the Tennessee Supreme Court’s fifth member – will come down on this increasingly prevalent dispute, however, only time will tell.

Read the Tennessee Supreme Court’s majority opinion in Circle C. Construction, LLC v. D. Sean Nilsen et al. here, and Justice Kirby’s dissenting opinion here.

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

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[1] Traditionally, legal malpractice claims must be filed within one year.  In this case, if it had not been extended, then the company’s lawsuit would have had to be filed by March 15, 2011.

[2] Decision at 6 (citing Clark v. Hoops, LP, 709 F. Supp. 2d 657, 669 (W.D. Tenn. 2010)).

[3] Tenn. Code Ann. § 28-1-105.  See also Rajvongs v. Wright, 432 S.W.3d 808, 811 (Tenn. 2013) (“The saving statute provides that if a timely filed action is dismissed without prejudice, a plaintiff may ‘commence a new action within one (1) year after’ the dismissal.”); Tenn. R. Civ. P. 41.01 (“Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause . . . .”).

[4] Gen. Acc. Fire & Life Assur. Corp. v. Kirkland, 356 S.W.2d 283, 285 (1962).

[5] Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995)

[6] Moreno v. City of Clarksville, No. M201301465SCR11CV, 2015 WL 5526858, at *16 (Tenn. Sept. 18, 2015) (Wade, J., dissenting).

[7] Daniel A. Horwitz, The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap, Vol. 15, No. 5 Nashville Bar Journal 14 (June 2015) (feature article), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577156.

[8] See Ferguson v. Middle Tennessee State Univ., 451 S.W.3d 375 (Tenn. 2014) (reversing Ferguson v. Middle Tennessee State Univ., No. M2012-00890-COA-R3CV, 2013 WL 1304490 (Tenn. Ct. App. Mar. 28, 2013)).

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

Constitutional Law, Second Amendment, , , ,

By Daniel Horwitz:

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

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

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

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

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

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

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

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

___________________________________________________________________________

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

By David L. Hudson, Jr.: 

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

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

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

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

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

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

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

_______________________________________________________________________

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

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

Constitutional Law, Fourth Amendment, , ,

By Daniel Horwitz:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employment Law,

By Daniel Horwitz:

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

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

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

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

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

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

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

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

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

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

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

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

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

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

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

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

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

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

Employment Law, Family Law, Tort Law, ,

By Daniel Horwitz:

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

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

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

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

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

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

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

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

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

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

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

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

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

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

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

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

Constitutional Law, Election Law, First Amendment, , ,

By Daniel Horwitz:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Enforcement of Bona Fide Party Membership

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

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

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

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

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

. . . .

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

[6] Id. 

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

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

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

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

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

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

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

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

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

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

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

Property Law,

By Daniel Horwitz:

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

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

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

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

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

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

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

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

[4] Id. at 261.