Tag Archives: Tennessee Constitutional Law

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

Nashville, Tennessee—A groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.”  The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t.  A recent poll of 531 registered voters in Tennessee indicated that 84% of Tennesseans support reforming the law, including 90% of Democrats and 80% of Republicans.  Among other things, the law operates to punish first-time, non-violent drug offenders more severely than defendants who are convicted of violent crimes like Rape and Second Degree Murder.

Calvin Bryant is a beloved former Hillsboro High School football star, a former Tennessee State University student, and a former Tennessean employee.  A decade ago, witnesses described him as a “model citizen” who had “impeccable” character, was “loving toward his family,” “took a great interest in the people who live[d] in his neighborhood,” and was “very generous” with the elderly.  In 2008, however, Mr. Bryant was indicted for selling ecstasy pills to an aggressive government informant who had contacted him repeatedly, reminded Mr. Bryant that “he had helped raise him,” insisted that he needed drugs to earn money to feed his family, and pleaded with Mr. Bryant to help him get some.

The government’s informant had thirty-nine (39) separate convictions on his record in Davidson County alone at the time of the drug sales at issue—many of them violent felonies.  Even so, the informant was paid more than $1,000 in taxpayer money and avoided jailtime in exchange for helping secure Mr. Bryant’s conviction.  Mr. Bryant’s first trial ended in a hung jury after several jurors concluded that Mr. Bryant had been entrapped.  After his second trial, however, Mr. Bryant was convicted of selling drugs.

Even though it was a first-time, non-violent offense—Mr. Bryant had no other criminal history of any kind—because Mr. Bryant’s residence was located within 1,000 feet of a school, Mr. Bryant received a mandatory minimum sentence of seventeen (17) years in prison.  As a result, Mr. Bryant received a considerably longer sentence for committing a first-time, non-violent drug offense than he would have received if he had committed a severe, violent crime such as Rape, Second Degree Murder, Aggravated Robbery, Aggravated Vehicular Homicide, or Attempted First Degree Murder.  Mr. Bryant has been incarcerated for the past decade.  He has at least six years in prison left to serve.

Given the extraordinary circumstances of his prosecution, Mr. Bryant has filed a novel constitutional challenge to the application of Tennessee’s intensely punitive Drug Free School Zone law to his case.  Notably, even the District Attorney who prosecuted Mr. Bryant has submitted an affidavit supporting his early release, stating that: “I fail to see how an additional six years of incarceration will improve Mr. Bryant’s amenability to correction or would be required to maintain public safety.  I additionally fail to see how his release at a time earlier than 2023—and after over nine years of incarceration—will deprecate the seriousness of the offenses for which he was convicted or significantly imperil public safety.”

Tennessee’s intensely punitive Drug Free School Zone law was designed to keep drugs away from children.  Nobody disputes that this is a laudable goal.  However, many people, including several elected officials and judges in Tennessee, have disputed whether the law was ever intended to apply to drug sales between adults inside an adult’s residence and outside of school hours—especially when a government informant has set up a drug transaction inside a school zone on purposeAs one Tennessee judge has explained, for example:

I simply do not believe that the Tennessee legislature intended the scope of the Act to include drugs brought into the protected school zone by law enforcement’s own design. This concept of luring, which commonly takes the form of an undercover sting operation, is inconsistent with the legislative intent of the Act and defeats the overall purpose of “creat[ing] a drug-free school zone to reduce the occurrence of illegal drug activity in and around school facilities in order to enhance the learning environment.”

Mr. Bryant’s petition paints a heartbreaking picture of a law that was never intended for cases like his but which applied to him anyway.  In Davidson County, he notes, so-called “drug free” zones “cover[] almost every habitable portion of Nashville and [nearly] all of its urban core.”  As a result, based solely on a prosecutor’s discretion, the law can be applied “to virtually every drug sale that takes place in Nashville.”  Even so, in the approximately two decades since the law was enacted, only 62 defendants have ever been punished with the school zone sentencing enhancement in Davidson County, which upgrades a defendant’s conviction by a full felony class and renders defendants ineligible for parole for decades.  Although, as a general matter, the law has been used sparingly to punish dangerous or repeat offenders, Mr. Bryant’s petition notes that he has “the dubious distinction of being the only defendant in the history of this jurisdiction to receive Tenn. Code Ann. § 39-17-432’s sentencing enhancement for a first-time offense.”

Mr. Bryant’s petition also highlights the fact that “Davidson County’s own Grand Jury has observed that the [District Attorney’s] previous application of the school zone enhancement was arbitrary and capricious,” having formerly been applied in a way that turned substantially on a defendant’s poverty.  It explains:

“[G]iven the location-based nature of the sentencing enhancement at issue, Mr. Bryant’s sentence was also enhanced dramatically based on his poverty alone.  If, for example, Mr. Bryant had lived in a wealthy, residentially-zoned suburb like Belle Meade, then he likely would have been eligible for release after serving just two years and five months in prison for the exact same conduct.  Because Mr. Bryant lived in the Edgehill Housing Projects, however, Mr. Bryant must serve a mandatory minimum sentence of at least fifteen (15) years before he even becomes eligible for parole.”

Further, Mr. Bryant’s petition notes that before the new District Attorney reformed his office’s use of the school zone sentencing enhancement in 2014, “Davidson County’s application of Tenn. Code Ann. § 39-17-432 was unmistakably race-based.”  “Although there is abundant evidence that people of all races in Nashville use and sell drugs at roughly equal rates,” his petition explains, fully “87% of defendants in this jurisdiction who received enhanced sentences under Tenn. Code Ann. § 39-17-432 were people of color.”

Most importantly, however, Mr. Bryant notes that in the time since his conviction, Tenn. Code Ann. § 39-17-432 has been reformed both judicially and operationally to avoid precisely the type of strict liability penalty that applied in his case.  Consequently, if Mr. Bryant had committed the exact same offense today, then he would likely have been subject to a maximum sentence of between two and eight years in prison, rather than seventeen years.  Further, given his status as a first-time, non-violent offender, Mr. Bryant may well have avoided prison time at all.

Mr. Bryant has asked Davidson County Criminal Court Judge Steve Dozier to declare his sentence unconstitutional as applied to the unique circumstances of Mr. Bryant’s case, arguing that these circumstances render his sentence excessive under both the Eighth Amendment and Article 1, Section 16 of the Tennessee Constitution.  Mr. Bryant has also petitioned Judge Dozier for release while he submits an application for a pardon or commutation.  More than a dozen supporters—including Mr. Bryant’s own prosecutor, local politicians, business owners, friends, family members, and civil rights activists—have also filed affidavits in support of Mr. Bryant’s early release.  A hearing on Mr. Bryant’s petition is set for December 15, 2017 in Davidson County Criminal Court, Division 1.

“The fact that Tennessee law punishes first-time, non-violent drug sales more harshly than rape and murder is insane,” said attorney Daniel Horwitz, who is representing Mr. Bryant.  “Mr. Bryant was a promising young college student and a pillar of his community at the time of his conviction, and he made a single mistake that has already cost him a full decade of his life behind bars.  Mr. Bryant has more than paid his debt to society, and he deserves to be released.  This is the most unfair sentence I have ever seen.”

Read Mr. Bryant’s Verified Petition for Sentencing Relief here.

Selected Media Coverage

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

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

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

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

Selected Case Filings

Calvin Bryant Petition for Sentencing Relief


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Lawsuit Seeks to End White County’s Ongoing Sterilization Program

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

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

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

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

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

Selected media coverage regarding the program appears below:

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

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

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

Tennessee judge rescinds inmate sterilization-for-freedom program

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


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

By Daniel A. Horwitz

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

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

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

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

Petitioner Maximilano Gluzman’s Principal Brief

Brief of Respondent the Tennessee Board of Law Examiners

Petitioner Maximiliano Gluzman’s Reply Brief

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

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

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

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

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

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

-Nashville Post: National conservative groups join local bar fight

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

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

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

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

-Beacon Center Blog: Banned From the Bar Exam


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All Briefs Are Now Filed In the Case of the “Obviously Very, Very Qualified” Vanderbilt Law Student Prevented from Taking Bar Exam

By Daniel Horwitz:

Briefing is officially complete in Gluzman v. Tennessee Board of Law Examiners—the case of the “obviously very, very qualified” Vanderbilt Law School student who graduated Vanderbilt with an eye-popping 3.919 GPA but was still denied even the opportunity to take the Tennessee bar exam because he earned his undergraduate degree and his first law degree in his birth country of Argentina.  The case is now awaiting a ruling from the Tennessee Supreme Court.

While his case has been pending, Mr. Gluzman took and passed the New York bar exam on his first attempt.  However, rather than uprooting his family unnecessarily, he still hopes to be able to take the bar exam in Tennessee and practice law near his wife’s business in Memphis.

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

Petitioner Maximilano Gluzman’s Principal Brief

Brief of Respondent the Tennessee Board of Law Examiners

Petitioner Maximiliano Gluzman’s Reply Brief

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

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

Mr. Gluzman’s battle against the Tennessee Board of Law Examiners has attracted national media attention due in part to the Board’s refusal to permit Mr. Gluzman and other lawyers “from the vast majority of countries around the world” from ever being able to take the Tennessee bar exam regardless of their qualifications.  In Mr. Gluzman’s case, the Board’s policy is also particularly difficult to justify, because the Board itself has formally acknowledged that Mr. Gluzman is “obviously a very, very qualified person.”  Selected news coverage about the case is available below.

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

-Nashville Post: National conservative groups join local bar fight

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

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

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

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

-Beacon Center Blog: Banned From the Bar Exam

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Tennessee Supreme Court Holds that Divorce Contracts Must be Enforced as Written

By Daniel Horwitz:

In a common-sense opinion that clarified a muddled conflict among lower courts, the Tennessee Supreme Court has held that fee-shifting provisions in divorce agreements must be enforced as written.  Offering a forceful defense of the right to contract, Chief Justice Bivins’ unanimous opinion in Eberach v. Eberach instructs all lower courts that they do not have any discretion to deny attorney’s fees to a prevailing party if a contract agreed to by both parties makes such an award mandatory.

Eberach involved litigation between a former husband and wife following their divorce.  In 2011, the couple divorced and entered into a “marital dissolution agreement,” or “MDA.”  In lay terms, an MDA is a binding contract that sets out the terms of a divorce.  Among other things, the parties’ MDA provided that:

“In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action.”

Three years later, the ex-couple found themselves embroiled in litigation over the wife’s plan to relocate to Ohio with their three children.  Ultimately, the trial court granted the wife permission to move to Ohio and awarded her $20,000.00 in attorney’s fees.  Thereafter, the trial court’s decision was affirmed by the Court of Appeals, which upheld both the relocation and the trial court’s fee award.  However, the Court of Appeals declined to award the wife additional compensation for the attorney’s fees that she had incurred on appeal.

Upon review, the Tennessee Supreme Court observed that various tribunals of the Court of Appeals had “been inconsistent in their analysis of claims for attorney’s fees in cases in which the claim is based on a contractual provision in a MDA.”  One line of cases held that appellate courts have discretion to deny attorney’s fees to a prevailing party “even in the face of a controlling contractual fee provision requiring such an award.”[1]  Another line of authority held that “when a MDA fee provision mandates an award of attorney’s fees to the prevailing party, the Court of Appeals does not have discretion to deny an award of appellate attorney’s fees.”[2]  Additionally, a third line of cases “observed that an award of appellate attorney fees in Tennessee is within the court’s sound discretion,” but then went on “to award attorney’s fees on appeal solely on the basis of the parties’ MDA fee provisions without further discussion.”[3]

Clarifying this conflicting precedent, the Tennessee Supreme Court instructed with unmistakable clarity that “parties are contractually entitled to recover their reasonable attorney’s fees when they have an agreement that provides the prevailing party in a [lawsuit] is entitled to such fees.”   “In such cases,” the Court explained, trial courts “do[] not have the discretion to set aside the parties’ agreement and supplant it with its own judgment.”  The Court further instructed that “[t]he same is and must be true of our appellate courts.”  Thus, “[a]bsent fraud, mistake, or some other defect, our courts are required to interpret contracts as written.”

As a general matter, litigants in the United States must pay their own attorney’s fees regardless of whether they win or lose.  Under this so-called “American Rule”—to which Tennessee adheres—“a party in a civil action may recover attorney’s fees only if: (1) a contractual or statutory provision creates a right to recover attorney’s fees; or (2) some other recognized exception to the American Rule applies, allowing for recovery of such fees in a particular case.”[4]  “Otherwise,” as the Eberach court observed, “litigants are responsible for their own attorney’s fees.”  Of note, the general presumption that parties must bear their own legal fees places the United States at odds with the legal regimes of many European nations, which generally adhere to a “loser pays” framework.

The most common exception to the American rule is a private agreement between parties which provides that in the event of litigation, the loser must pay the winner’s attorney’s fees.  Significantly, in Eberach, the husband and wife had executed such an agreement.  Thus, the only question presented in Eberach was whether the Court of Appeals was required to enforce it.

Emphatically answering this question in the affirmative, the Court’s opinion in Eberach furthers Tennessee’s longstanding commitment to protecting the right to contract.  In Tennessee, the right to contract has constitutional origins, and it is enforceable as a fundamental right.[5]  Tennessee statutory law also provides that: “All contracts, . . . in writing and signed by the party to be bound, . . .  shall be enforced as written.”[6]  In keeping with this tradition, the Eberach court explained that “one of the bedrocks of Tennessee law is that our courts are without power to make another and different contract from the one executed by the parties themselves.”  As such, the Court mandated that the terms of the husband’s and wife’s MDA be enforced.

Having resolved that the wife was entitled to attorney’s fees for her successful litigation in the Court of Appeals, the Court then remanded the case to the trial court to “determine the appropriate amount of Wife’s reasonable attorney’s fees on the appeal.”  Additionally, applying its just-announced holding to itself, the Tennessee Supreme Court also explained that the attorney’s fee award must cover the costs of the wife’s appeal “to this Court” as well.  Thus, going forward, litigants in Tennessee—and divorcees in particular—can have renewed faith that the terms of their contracts will, in fact, be enforced as written.

Read the Court’s unanimous opinion in Eberach v. Eberach here.

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[1] See Grisham v. Grisham, No. W2010- 00618-COA-R3-CV, 2011 WL 607377, at *11 (Tenn. Ct. App. Feb. 22, 2011) (holding that the trial court erred in failing to award wife her reasonable trial court attorney’s fees pursuant to MDA fee provision, but declining to award appellate attorney’s fees pursuant to the Court of Appeals’ discretion); Brown v. Brown, No. W2005-00811-COA-R3-CV, 2006 WL 784788, at *6 (Tenn. Ct. App. Mar. 29, 2006) (affirming the trial court’s award of trial court fees under the parties’ MDA, but equitably denying wife’s request for appellate fees pursuant to the Court of Appeals’ discretion); Elliott v. Elliott, 149 S.W.3d 77, 88 (Tenn. Ct. App. 2004) (affirming the trial court’s award of fees to wife pursuant to parties’ MDA fee provision, but denying wife’s request for appellate attorney’s fees); Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 22071454, at *8, *10 (Tenn. Ct. App. Sept. 3, 2003) (affirming trial court’s award of attorney’s fees pursuant to MDA, but equitably declining to award either party attorney’s fees incurred on appeal).

[2] See, e.g., Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782, at *9-10 (Tenn. Ct. App. Apr. 28, 2010) (affirming trial court’s award of fees pursuant to MDA and holding that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Treadway v. Treadway, No. M2014-00898-COA-R3-CV, 2015 WL 1396652, at *7 (Tenn. Ct. App. Mar. 24, 2015) (awarding appellate attorney’s fees pursuant to the parties’ MDA); Brinton v. Brinton, No. M2009-02215-COA-R3-CV, 2010 WL 2025473, at *6 (Tenn. Ct. App. May 19, 2010) (same); Corbin v. Corbin, No. W2008-00437-COAR3-CV, 2009 WL 454134, at *7 (Tenn. Ct. App. Feb. 24, 2009) (same); Waugh v. Waugh, No. M2006-021540COA-R3-CV, 2007 WL 2200278, at *4 (Tenn. Ct. App. July 30, 2007) (same); Hogan, 1999 WL 1097983, at *4-5 (reversing trial court’s denial of attorney’s fees, and awarding attorney’s fees to Mother for trial court and appellate level proceedings pursuant to the parties’ MDA).

[3] Wilkinson v. Wilkinson, No. W2012-00509-COA-R3-CV, 2013 WL 614708, at *10 (Tenn. Ct. App. Feb. 19, 2013); (citing Archer, 907 S.W.2d at 419) (emphasis supplied)). See also Hanna v. Hanna, No. W2014-02051- COA-R3-CV, 2015 WL 1951932, at *4 (Tenn. Ct. App. Apr. 30, 2015) (stating its discretion then awarding fees on appeal based on the parties’ MDA requiring that the “court shall award reasonable attorney’s fees to the party seeking to enforce [the MDA]”) (alterations in original); Williams v. Williams, No. M2013-01910-COA-R3-CV, 2015 WL 412985, at *14 (Tenn. Ct. App. Jan. 30, 2015) (affirming the trial court’s award of fees pursuant to the parties’ MDA, stating its discretion and determining that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Dodd v. Dodd, No. M2011-02147-COA-R3-CV, 2012 WL 3193339, at *6 (Tenn. Ct. App. Aug. 6, 2012) (holding that Mother was entitled to recover her trial court attorney’s fees pursuant to the parties’ MDA, but using its discretion and concluding that Mother was justified in recovering attorney’s fees).

[4] Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing Fezell, 158 S.W.3d at 359; John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998)).

[5] See Tenn. Const. art. XI, § 2; Tenn. Const. art. I, § 20.  See also ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (“equity respects and upholds the fundamental right of the individual to complete freedom to contract”) (quotation omitted).

[6] Tenn. Code Ann. § 47-50-112(a).

Nashville Scene: “The Tennessee Supreme Court Keeps Reversing Itself, and Criminal Defense Attorneys Are Worried”

Via Stephen Elliot, The Nashville Scene: (link)

In 2012, the Tennessee Supreme Court ruled that a defendant who pleads guilty to a crime can appeal the judgment if exculpatory evidence is discovered later.

Four years later, the same court changed its mind.

What occurred in the intervening four years to necessitate such a pivot by the state’s highest court? Nothing, according to Justice Sharon G. Lee.

. . . .

“Since 2014, the Tennessee Supreme Court has aggressively sought to federalize Tennessee law by striking down state-specific protections that prior iterations of the court had developed under Tennessee’s state constitution and civil rules,” says Daniel Horwitz, a Nashville attorney and the editor of ScotBlog, a website devoted to the state Supreme Court. “A few significant state-level protections still remain. However, given that prior precedent — no matter how recent or firmly established — has had virtually no influence on the Tennessee Supreme Court’s decisions to overturn its previous rulings, it stands to reason that these protections are vulnerable to being abandoned as well.”

Read more: http://www.nashvillescene.com/news/features/article/20857900/the-tennessee-supreme-court-keeps-reversing-itself-and-criminal-defense-attorneys-are-worried

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New in the February 2017 Tennessee Bar Journal: Safeguarding Crime Victims’ Private Records Following The Tennessean v. Metro

By Daniel Horwitz:

In March 2016, the Tennessee Supreme Court ruled 4–1 that law enforcement’s investigative files are categorically exempt from public disclosure under the Tennessee Public Records Act (TPRA) throughout the pendency of a criminal case. The underlying lawsuit pitted a vast media coalition spearheaded by The Tennessean against both law enforcement officials and a rape victim who intervened to protect her privacy interests under the pseudonym “Jane Doe.” Ultimately, the court’s majority opinion represented a resounding victory for law enforcement and a significant setback for Tennessee’s news media, which lost on every substantive claim presented. At present, however, how the court’s ruling will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is uncertain.

Continue reading New in the February 2017 Tennessee Bar Journal: Safeguarding Crime Victims’ Private Records Following The Tennessean v. Metro

The Tennessee Supreme Court Has Agreed to Hear a Laughably Egregious Case of Economic Protectionism

The Tennessee Supreme Court has agreed to hear a laughably egregious case of economic protectionism in its upcoming term.  The case pits Vanderbilt Law School alumnus Maximiliano Gluzman – a preeminently qualified lawyer who graduated Vanderbilt’s LL.M. program with an almost impossible 3.919 GPA – against the Tennessee Board of Law Examiners, which has refused to allow Mr. Gluzman to take the Tennessee bar exam solely because he’s foreign.

Given the extraordinary facts of Mr. Gluzman’s case, the Board will struggle to mount a straight-faced claim that its decision to deny Mr. Gluzman the opportunity to take the Tennessee bar exam is based on anything other than its interest in protecting Tennessee’s native-born attorneys from competition—a result that benefits lawyers but harms consumers by artificially raising prices.  As a consequence, the case has the potential to extend Tennessee’s already-robust precedent on economic liberty to an industry that it has never reached before: legal services.

In 2002, the United States Court of Appeals for the Sixth Circuit – which has jurisdiction over Tennessee – established ground-breaking federal precedent by holding that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose” and violates the 14th Amendment to the U.S. Constitution.[1]  Significantly, though, the Tennessee Supreme Court boasts an even prouder history of protecting economic liberty under the comparable provisions of Tennessee’s state Constitution.  For example, in the 1956 case Consumers Gasoline Stations v. City of Pulaski, the Tennessee Supreme Court held that: “Although [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”[2]  Additionally, more than half a century before that, the Tennessee Supreme Court held in Harbison v. Knoxville Iron Co. that:

“The ‘liberty’ contemplated in [the Tennessee Constitution] means not only the right of freedom from servitude, imprisonment, or physical restraint, but also the right to use one’s faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof.[3]

Of note, the Tennessee General Assembly has since expanded these precedents even further as a legislative matter by enacting the “Right to Earn a Living Act” in 2016,[4] which recognized that: “it is in the public interest to ensure the right of all individuals to pursue legitimate entrepreneurial and professional opportunities to the limits of their talent and ambition” without unnecessary governmental interference.

Ostensibly, bar admission rules are intended to protect the public from unqualified attorneys.  Historically, however, they’ve often been wielded to keep disfavored minorities—like Jews and women—from becoming lawyers instead.[5]  Barriers imposed between states themselves have also been used more often than not to “insulat[e] [in-state] practitioners from out-of-state competition,”[6] rather than being adopted for the purpose of promoting any actual public interest.  Such is the case with respect to Mr. Gluzman as well—a fact that the Tennessee Supreme Court is highly unlikely to overlook.

In Mr. Gluzman’s case, there can be no serious claim that he would pose even the slightest threat to the public if he were permitted to take the Tennessee bar exam.  In fact, during Mr. Gluzman’s hearing before the Board of Law Examiners, the Board itself conceded that Mr. Gluzman was “obviously a very, very qualified person.”  His extraordinary academic credentials also support this conclusion in full.  For example, while competing against Vanderbilt’s American JD students (in his second language, no less), Mr. Gluzman was able to graduate with an eye-popping 3.919 GPA—good enough to put him at the top of Vanderbilt’s Dean’s List each semester and quite possibly making him the most academically-qualified foreign applicant ever to apply to take the bar exam in Tennessee.  Two of Mr. Gluzman’s Vanderbilt Law School professors also provided expert testimony in support of his application to take the bar exam, with one observing that Mr. Gluzman was “one of the very best students I ever had the privilege of teaching in 20 years,” and the other testifying that he was “clearly top of the class.”  Mr. Gluzman’s application to take the Tennessee bar exam also comes after more than a decade of professional success as a corporate lawyer in Argentina.

Despite this sterling record of achievement, however, the Board of Law Examiners denied Mr. Gluzman not only the opportunity to become a lawyer in Tennessee—it told him that he may never even take the Tennessee bar exam.  The purported basis for the Board’s denial was that Mr. Gluzman’s undergraduate and legal education were not “substantially equivalent” to an American education: a conclusion that itself conflicts with an expert foreign credential evaluation report filed in his case that unequivocally concluded otherwise.  According to the Board, though, a foreign applicant like Mr. Gluzman must have earned “a degree that is equivalent to a Bachelor’s degree or higher followed by a degree that is equivalent to a Juris Doctorate degree,” which he did not.

Conveniently, because the vast majority of countries around the world combine undergraduate and legal educations into just a single degree over the course of a five- or six-year period, one expert witness testified that only “[foreign] students from nine Canadian provinces, a few Australian students, and a few Japanese students” may ever hope to win permission take the Tennessee bar exam under the Board’s current standard.  Attorneys from anywhere else in the world, however, are forever prohibited from becoming lawyers in Tennessee unless they opt to re-do their entire undergraduate and legal education in the United States.  Obviously, no foreign applicant is willing to forfeit the time (seven years) and money (hundreds of thousands of dollars at a minimum, factoring in opportunity costs) necessary to satisfy that requirement.  Instead, the only rational decision is to move to states like Texas, which makes an effort to accommodate foreign attorneys rather than placing insurmountable barriers in front of them for the purpose of curbing competition.

Exacerbating this groundless discrimination, LL.M. Degrees – which many states permit to “cure” any claim of insufficient foreign credentials – from law schools like Vanderbilt and the University of Tennessee are now disregarded as useless by the Tennessee Board of Law Examiners if an attorney does not hail from one of the three aforementioned countries with law schools that match American JD programs.  Thus, if permitted to stand, the Board’s decision would significantly undermine the integrity of the LL.M. programs offered by Tennessee’s two flagship law schools.  Fearing lasting and devastating consequences from the Board’s grievous error, the Board’s decision immediately prompted Vanderbilt University and UT to file a joint petition in support of Mr. Gluzman highlighting the seriousness of the problem that the Board had created.  Even then, however, the Board opted to ignore it.

In addition to disregarding Mr. Gluzman’s surpassing personal qualifications, the reality that the Board of Law Examiners is not actually focused on protecting the public from unqualified lawyers is revealed by the fact that it has taken no apparent interest in the declining bar passage rates posted by Nashville School of Law in recent years.  The last time the bar exam was administered in Tennessee, for example, fully 72% of Nashville School of Law graduates failed it—a fact that did not visibly cause the Board of Law Examiners even the slightest concern.  Now, however, an indisputably qualified Vanderbilt Law School graduate wants to sit for the bar exam, but because he’s foreign, the Board won’t even let him take it?  Plainly, the Board’s motives have little and less to do with protecting the public from unqualified lawyers, and a great deal more to do with protecting American attorneys from foreign competition.  Whether the Board’s decision – and all of its attendant consequences – will be permitted to stand, however, only time will tell.

Gluzman v. Tennessee Board of Law Examiners is expected to be heard in the Spring or Summer of 2017.  Read Mr. Gluzman’s brief before the Tennessee Board of Law Examiners here.

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[1] Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).

[2] 292 S.W.2d 735, 737 (Tenn. 1956).

[3] 53 S.W. 955, 957 (Tenn. 1899).

[4] See Tenn. Code Ann. § 4-5-501, et seq. (2016).

[5] See Deborah Rhode, Moral Character As A Professional Credential, 94 Yale L.J. 491, 497-502 (1985) (noting that State bars historically have excluded women, Jews, those of Eastern European decent, religious fanatics, Communists, and adulterers, among others, because these allegedly socially unacceptable or radical political behaviors were said to have demonstrated a propensity to violate professional norms).

[6] Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 278 (1985).

Slate: An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of “Homosexual Acts”

By Mark Joseph Stern, for Slate:

Nashville attorney Daniel Horwitz was helping a man expunge his criminal record when he discovered something unexpected: a conviction for violating Tennessee’s Homosexual Practices Act—from 1995.

“Subject was engaged in sexual intercourse with another male subject,” the misdemeanor citation reads. The charge could have landed the defendant—whom I’ll call John Doe—in jail. Instead, Doe took a plea deal and avoided jail time by admitting that he had, indeed, had sex with a man, a practice forbidden by the law. Horwitz told me he was “aghast” to see the charge.

Continue reading Slate: An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of “Homosexual Acts”

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

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 daniel.a.horwitz@gmail.com.

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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.