Tag Archives: Tennessee Constitutional Law

No, the Double Jeopardy Clause does not prevent re-trial in the Vanderbilt rape case.

By Daniel A. Horwitz

Yesterday, Judge Monte Watkins declared a mistrial in the consolidated prosecutions of Cory Batey and Brandon Vandenburg, which have come to be known collectively as “the Vanderbilt rape case.”  Judge Watkins’ eight-page mistrial order is accessible here.  As explained in detail in this post from last week, Tennessee law presumes jurors to be biased when they give false statements or fail to be forthcoming in response to questions asked during jury selection, and under such circumstances, a new trial is appropriate regardless of the strength of the evidence that was presented.   In this case, the juror in question appears to have lied several times in response to a wide array of questions that he was asked during voir dire.  For example, in page six of Judge Watkins’ ruling, he explains: “[I]t would be difficult to believe that Juror #9 did not [recall] his involvement in a statutory rape case when sexual assault, rape, and unwanted sexual touching [were] mentioned over one hundred and four times during the course of voir dire.”

Following Judge Watkins’ mistrial declaration, several observers have inquired whether the Double Jeopardy clause of the Fifth Amendment prohibits the government from re-trying the two defendants.  It does not.  According to the U.S. Supreme Court, barring bad-faith or prosecutorial misconduct, “a mistrial ruling explicitly contemplates reprosecution of the defendant.”  United States v. Jorn, 400 U.S. 470, 476 (1971).  As the Supreme Court has explained: Continue reading No, the Double Jeopardy Clause does not prevent re-trial in the Vanderbilt rape case.

Is Nashville’s Airbnb Ordinance Constitutional?  Maybe not. 

By Daniel A. Horwitz

A few weeks ago, Lindsay Boyd penned a fun article for the Beacon Center TN Blog about Nashville’s new Airbnb ordinance entitled “My Dog Has More Freedom Than You Do.”  Contrasting Nashville’s newly enacted “Short Term Rental Property” regulations with the comparatively regulation-free environment available to short term dog sitters, Ms. Boyd explains:

“[T]hose of us residing in Nashville will no longer have the same freedoms that our pets do to shop for accommodations or open our homes to prospective vacation renters.  This spring, the city of Nashville announced a new policy for Airbnb operations.

Now, not only do Airbnb operators have to pay the same taxes as hotels, but those whose homes are used strictly for “short term rentals” (or Airbnb business) must also stand in line to vie for a limited number of licenses granted by the city—available to a mere 3% of households per census tract.  Those who fail to obtain these permits and adapt their services to adhere to further regulations on the number of sleeping rooms, signage, parking, and food service, will simply be out of luck—or become outlaws if they continue to operate unabated.”

After reviewing the provisions of Nashville’s short term rental property ordinance, however, I began to wonder:  can Nashville’s Airbnb regulations withstand constitutional scrutiny?  From my vantage point – at least with respect to the provision of the ordinance that caps the total number of short term rental permits at “[n]o more than three percent of the single-family or detached two-family residential units within each census tract”[1] – the answer is no. Continue reading Is Nashville’s Airbnb Ordinance Constitutional?  Maybe not.