Craig Robert Nunn v. Tennessee Department of Correction

10/23/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 16, 2017 Session

CRAIG ROBERT NUNN v. TENNESSEE DEPARTMENT OF

CORRECTION, ET AL.

Direct Appeal from the Chancery Court for Davidson County

No. 10-1583-IV Russell T. Perkins, Chancellor

No. M2016-01518-COA-R3-CV

This case involves a sex offender’s complaint for declaratory relief under state law and

42 U.S.C. § 1983 raising various constitutional and other challenges to the conditions

imposed on him in accordance with his sentence to community supervision for life. The

trial court found that most of the offender’s constitutional claims were time-barred. The

trial court reviewed the substantive merit of the remaining claims and found them

meritless. As a result, the trial court granted the motion for summary judgment filed by

the defendants, the Tennessee Department of Correction and the Tennessee Attorney

General. The offender raises numerous issues on appeal. We affirm in part, reverse in

part, and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

in part, Reversed in part, and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which ARNOLD B.

GOLDIN, and KENNY ARMSTRONG, J., joined.

David Louis Raybin, Nashville, Tennessee, for the appellant, Craig Robert Nunn.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor

General, Scott C. Sutherland, Deputy Attorney General, and Brooke K. Schiferle,

Assistant Attorney General, Nashville, Tennessee, for the appellees, Tennessee

Department of Correction, and Herbert H. Slattery III, Attorney General.

OPINION

I. FACTS & PROCEDURAL HISTORY

On January 14, 1999, Craig Nunn pled guilty to four counts of aggravated sexual

battery against four minor children who were patients at a hospital where he worked as a

physician. The four incidents of aggravated sexual battery occurred between December

1997 and February 1998. Nunn received four concurrent sentences of twelve years to be

served in the Tennessee Department of Correction. He was also sentenced to community

supervision for life pursuant to Tennessee Code Annotated section 39-13-524, which, at

the time, provided, in relevant part:

(a) In addition to the punishment authorized by the specific statute

prohibiting the conduct, any person who, on or after July 1, 1996, commits

a violation of § 39-13-502, § 39-13-503, § 39-13-504 [aggravated sexual

battery], § 39-13-522, or attempts to commit a violation of any of these

sections, shall receive a sentence of community supervision for life.1

....

(c) The sentence of community supervision for life shall commence

immediately upon the expiration of the term of imprisonment imposed upon

the person by the court or upon the person’s release from regular parole

supervision, whichever first occurs.

(d)(1) A person on community supervision shall be under the jurisdiction,

supervision and control of the Board of Paroles in the same manner as a

person under parole supervision.2 The board is authorized on an individual

basis to establish such conditions of community supervision as are

necessary to protect the public from the person’s committing a new sex

offense, as well as promoting the rehabilitation of the person.

....

Essentially, the lifetime supervision requirement of Tennessee Code Annotated section

39-13-524 “imposes an additional set of restrictions and requirements on the offender

after serving his or her entire sentence of incarceration.” Ward v. State, 315 S.W.3d 461,

476 (Tenn. 2010). The Tennessee Supreme Court has described the lifetime community

supervision requirement as “punitive in effect, requiring an offender to regularly report to

a parole officer who is granted wide discretion in imposing supervisory requirements, and

to pay a monthly fee.”3 Id. at 474. Pursuant to a related statute, Tennessee Code

1

“The crimes that warrant lifetime community supervision are all quite serious felonies[.]” Bush v. State,

428 S.W.3d 1, 21 (Tenn. 2014).

2

The statute was later amended to substitute “Board of Probation and Parole” for “Board of Paroles.”

1998 Tenn. Pub. Acts, c. 1049, § 11. For clarity, we will refer to the Board as the Board of Probation and

Parole throughout this opinion.

3

Although Tennessee Code Annotated section 39-13-524 provides for a sentence of “community

supervision for life,” Tennessee Code Annotated section 39-13-525(a) provides that “[a]fter a person

sentenced to community supervision pursuant to § 39-13-524 has been on supervision for a period of

fifteen (15) years, the person may petition the sentencing court for release from community supervision.”

If the petitioner has not been convicted of a criminal offense while under community supervision, the

2

Annotated section 39-13-526, a knowing violation of a condition of community

supervision will constitute a separate criminal offense. Tenn. Code Ann. § 39-13-

526(a)(4).

Approximately three months after Nunn pled guilty, on April 26, 1999, the

Tennessee Board of Probation and Parole adopted “Sex Offender Directives” that

established specialized conditions of community supervision for sex offenders. For

example, the Sex Offender Directives required offenders to participate in counseling and

polygraph tests and prohibited them from accessing the internet without approval or

possessing alcohol. The Board of Probation and Parole granted supervising officers some

discretion in imposing the conditions as deemed appropriate based on the particular

offender’s risks and needs.

Nunn was released from serving his twelve-year sentence on March 28, 2009. On

that same date, Nunn was placed on community supervision for life. According to Nunn,

as he was being released from prison, the institutional parole officer placed him on the

sex offender community supervision regime over his objection. Nunn signed a

“Community Supervision Certificate” agreeing to abide by the Sex Offender Directives

adopted by the Board of Probation and Parole, but he wrote beside his signature “under

protest.” Days later, on March 31, 2009, Nunn met his supervising officer, who had him

also sign a copy of the Sex Offender Directives containing the detailed list of specialized

conditions of supervision for sex offenders. The Sex Offender Directives required Nunn

to submit to curfews or electronic monitoring imposed by his supervising officer and to

participate in counseling or treatment and polygraphs as deemed necessary. The Sex

Offender Directives prohibited Nunn from possessing pornographic material, possessing

alcohol, accessing the internet without permission from his supervising officer, working

at an organization that provided services to minor children, or befriending anyone with

minor children. The Sex Offender Directives provided that these conditions of

supervision were “guidelines . . . established for all offenders” and would apply to Nunn

unless either the Board of Probation and Parole or his supervising officer and treatment

provider determined otherwise, and if he did not agree with any condition, he could

petition the Board for a modification.

Approximately eighteen months later, on September 29, 2010, Nunn filed a

complaint for declaratory relief against the Board of Probation and Parole and the

Tennessee Attorney General challenging the Sex Offender Directives as applied to him,

court must conduct a hearing on the petition and “call such witnesses, including the examining

psychiatrist or licensed psychologist with health service designation or the prosecuting district attorney

general, as the court deems necessary to reach an informed and just decision on whether the petitioner

should be released from community supervision.” Tenn. Code Ann. § 39-13-525(d)(2). The petitioner

may also offer witnesses and other proof at the hearing. Id.

3

on several grounds.4 Nunn’s complaint described his suit as one “for declaratory relief

pursuant to Tenn. Code Ann. § 29-14-102 [Tennessee’s Declaratory Judgment Act] and a

violation of civil rights pursuant to 42 U.S.C. § 1983.” Nunn acknowledged that he was

sentenced to community supervision for life but claimed that the conditions of his

supervision were fixed at the time of his offense and could not be made more harsh or

severe thereafter. He claimed that the Sex Offender Directives adopted in 1999, months

after he pled guilty, could not be applied to his community supervision for life. Nunn

asked the trial court to declare that this application of Tennessee Code Annotated sections

39-13-524 and -526 and the Sex Offender Directives violated numerous provisions of the

United States and Tennessee Constitutions regarding ex post facto laws, due process,

equal protection, cruel and unusual punishment, self-incrimination, and separation of

powers. In addition to citing Tennessee’s Declaratory Judgment Act, he asked the court

to also grant him declaratory relief pursuant to 42 U.S.C. § 1983 in order to remedy these

constitutional violations and “the deprivation of civil rights under color of state law.”

Nunn did not seek monetary damages except for an award of attorney’s fees and litigation

costs pursuant to 42 U.S.C. § 1988.

The Board of Probation and Parole and Attorney General filed an answer, and

discovery ensued. Effective July 1, 2012, while the case was still pending, Tennessee

Code Annotated section 39-13-524 was amended to provide that individuals subject to

community supervision for life would be under the jurisdiction and supervision of the

Tennessee Department of Correction rather than the Board of Probation and Parole. See

2012 Tenn. Pub. Acts, c. 727, § 5 (replacing “board of probation and parole” with

“Department of Correction” in the statutory text). Consequently, on August 20, 2012, the

parties entered into an agreed order providing that the Department of Correction would

be substituted as a party defendant in the place of the Board of Probation and Parole. On

October 10, 2014, the parties entered into another agreed order permitting Nunn to file an

amended complaint.

Nunn’s amended complaint stated that it was filed as a suit for declaratory

judgment pursuant to Tennessee Code Annotated section 4-5-225 of the Uniform

Administrative Procedures Act and for declaratory relief pursuant to 42 U.S.C. § 1983.5

4

Although Nunn is also required to register with the Tennessee Sexual Offender Registry, he emphasizes

that he is not challenging the sex offender registry in this case.

5

Tennessee Code Annotated section 4-5-225 states,

(a) The legal validity or applicability of a statute, rule or order of an agency to specified

circumstances may be determined in a suit for a declaratory judgment in the chancery

court of Davidson County, unless otherwise specifically provided by statute, if the court

finds that the statute, rule or order, or its threatened application, interferes with or

impairs, or threatens to interfere with or impair, the legal rights or privileges of the

complainant. The agency shall be made a party to the suit.

4

Nunn’s amended complaint set forth fifteen counts or claims alleging various violations

of constitutional provisions, the Uniform Administrative Procedures Act, and 42 U.S.C. §

1983. Specifically, two of the counts addressed the Uniform Administrative Procedures

Act. Twelve counts asserted the following constitutional violations:

1. Ex post facto violations under the United States and Tennessee

Constitutions;

2. Separation of powers violation under the Tennessee Constitution;

3. Violation of his due process right to earn a living under the United

States and Tennessee Constitutions;

4. Cruel and unusual punishment under the United States and

Tennessee Constitutions;

5. Violation of equal protection under the United States Constitution;

6. Violation of the self-incrimination clauses of the United States and

Tennessee Constitutions;

7. Void for vagueness under the United States and Tennessee

Constitutions;

8. Unlawful bill of attainder under the United States and Tennessee

Constitutions;

9. Additional ex post facto and separation of powers violations;

(b) A declaratory judgment shall not be rendered concerning the validity or applicability

of a statute, rule or order unless the complainant has petitioned the agency for a

declaratory order and the agency has refused to issue a declaratory order.

(c) In passing on the legal validity of a rule or order, the court shall declare the rule or

order invalid only if it finds that it violates constitutional provisions, exceeds the statutory

authority of the agency, was adopted without compliance with the rulemaking procedures

provided for in this chapter or otherwise violates state or federal law.

Nunn did not proceed under this section in his original complaint, nor did he petition the Board of

Probation and Parole for a declaratory order, because Tennessee Code Annotated section 4-5-106(c)

provides that section 4-5-225 “shall not apply to . . . the board of parole.” After the Department of

Correction assumed jurisdiction over persons subject to community supervision for life in 2012, Nunn

petitioned the Department of Correction for a declaratory order regarding the Sex Offender Directives,

and the Department declined to issue a declaratory order, as authorized by Tennessee Code Annotated

section 4-5-223(a)(2) and -225(b).

5

10. Violation of his right to travel under the privileges and immunities

clause and due process clause of the United States Constitution;

11. Violation of due process rights and an unconstitutional taking due to

the impact on his family;

12. Violation of due process in connection with the mandatory therapy

requirement.

Finally, the “pendant civil rights claim” alleged that these same alleged violations of the

United States Constitution also constituted violations of 42 U.S.C. § 1983, as the State of

Tennessee deprived him of “rights, privileges, or immunities secured by the

[Constitution]” within the meaning of section 1983. Nunn claimed that he was entitled to

declaratory relief pursuant to § 1983 due to the deprivation of his civil rights under color

of state law. He sought attorney’s fees pursuant to 42 U.S.C. § 1988.

The Department of Correction and Attorney General (“Defendants”) filed an

answer to Nunn’s amended complaint and asserted that his claims were time-barred by

the applicable statute of limitations. Thereafter, the Defendants filed a motion for

summary judgment asserting that the statute of limitations had expired for all of Nunn’s

declaratory claims asserting constitutional violations except the one regarding separation

of powers. Initially, the Defendants argued that Nunn’s claims pursuant to 42 U.S.C. §

1983 were subject to the one-year statute of limitations applicable to federal civil rights

claims set forth in Tennessee Code Annotated section 28-3-104(a). Next, the Defendants

argued that Nunn’s claims for declaratory relief pursuant to state law were not subject to

any particular statute of limitations simply based on their nature as declaratory judgment

actions, as declaratory judgment actions are merely a procedural device for asserting

substantive claims. Accordingly, the Defendants contended that it was necessary to look

to the nature of the underlying substantive claims in order to determine the statute of

limitations applicable to the claims for declaratory relief. Because Nunn sought

declaratory relief pursuant to state law and asserted his section 1983 claim based on the

same underlying alleged violations of his federal constitutional rights, the Defendants

claimed that the one-year statute of limitations applicable to his 1983 claim should also

apply to his claims for declaratory relief under state law alleging federal constitutional

violations. In addition, the Defendants argued that the same one-year statute of

limitations for section 1983 actions should likewise apply to Nunn’s declaratory claims

for violations of the Tennessee Constitution, as they also alleged violations of his civil

rights. While also suggesting an earlier date, the Defendants argued that the one-year

statute of limitations began to run, at the latest, when Nunn was released from prison on

March 28, 2009, and placed under supervision pursuant to the 1999 Sex Offender

Directives, as he admittedly signed the necessary paperwork under protest. (Nunn’s

6

complaint was filed eighteen months later.)

The Defendants did not argue that Nunn’s claims regarding the UAPA and

separation of powers were time-barred. Instead, the Defendants analyzed the substantive

merit of these claims and argued that they were entitled to summary judgment on these

issues. As an alternative basis for summary judgment, the Defendants also analyzed the

substantive merit of the constitutional claims that they asserted were time-barred and

argued that they were entitled to summary judgment with regard to the merits of those

issues as well. The Defendants submitted numerous documents as exhibits in support of

their motion for summary judgment.

Nunn filed a response and cross-motion for partial summary judgment. Nunn

conceded that the Sex Offender Directives were imposed on him as he left prison on

March 28, 2009, and argued, “The date from which the statute of limitation must be

marked is March 28, 2009.” However, he claimed that Tennessee’s general ten-year

statute of limitations applied to his claims for declaratory relief. Nunn acknowledged that

he was seeking “declaratory relief under state declaratory judgment statutes and pendant

claims under federal statutes permitting identical declaratory relief.” Still, he insisted that

his section 1983 claim was irrelevant to his “state law declaratory relief claim, albeit

citing federal constitutional violations.” Nunn also asserted that the “continuing

violation” doctrine would apply to his section 1983 claim because the enforcement of the

conditions of supervision for sex offenders had become increasingly harsh in recent

years. Nunn further analyzed each of the substantive claims asserted in his complaint and

argued that it was inappropriate to grant summary judgment to the Department based on

the merits of those claims. In fact, he asserted that he was entitled to partial summary

judgment on his ex post facto claim. Nunn submitted a host of exhibits in support of his

response and cross-motion for partial summary judgment, with the exhibits spanning

more than three volumes of the technical record on appeal.

Following a hearing, the trial court entered an order granting the motion for

summary judgment filed by the Defendants and denying the motion for partial summary

judgment filed by Nunn. First, the trial court concluded that the one-year statute of

limitations provided in Tennessee Code Annotated section 28-3-104(a)(1)(B) applied to

Nunn’s claims pursuant to section 1983 seeking declaratory relief based on federal

constitutional violations. Looking to the substantive nature of the remaining claims, the

trial court found that Nunn was seeking declaratory relief under state law based on the

same alleged violations of his federal constitutional rights that supported his 1983 claims,

“along with parallel violations of the Tennessee Constitution.” As such, the trial court

concluded that the same one-year statute of limitations applied to all of Nunn’s civil

rights claims, whether based on the United States or Tennessee Constitution. The court

found that Nunn knew he was subject to the 1999 Sex Offender Directives when he was

7

released from prison on March 28, 2009, and therefore, the one-year statute of limitations

expired in March 2010. Because Nunn filed his complaint in September 2010, the trial

court found that his civil rights claims under the federal and state constitutions were time-

barred.6 Despite Nunn’s insistence that all of his constitutional claims were “as applied”

challenges,7 the trial court construed two of Nunn’s claims -- based on separation of

powers and vagueness -- as “facial challenges,” and the court analyzed the substantive

merit of those two claims. It also analyzed Nunn’s claims under the UAPA. Finding no

merit in any of Nunn’s claims regarding these issues, the trial court also entered summary

judgment in favor of the Defendants on these claims. As an “alternative analysis,” the

trial court analyzed the substantive merit of Nunn’s ex post facto claim and concluded

that he had not demonstrated any ex post facto violation. Nunn timely filed a notice of

appeal.

II. ISSUES PRESENTED

Nunn raises the following issues, as we perceive them, for review on appeal:

1. Whether Nunn’s suit for declaratory relief pursuant to Tennessee

Code Annotated section 4-5-225 was timely either because it has a

ten-year statute of limitations or because his section 1983 claim is

subject to the continuing violation doctrine;

2. Whether the Sex Offender Directives created and implemented after

the commission of Nunn’s crimes constitute ex post facto laws as

applied to Nunn, violating the state and federal constitutions;

6

Again, the separation of powers claim was not encompassed by the motion or ruling regarding the statute

of limitations. The trial court dismissed as time-barred Nunn’s claims regarding section 1983; the ex post

facto clauses of the United States and Tennessee Constitutions; his due process right to earn a living

under the United States and Tennessee Constitutions; the cruel and unusual punishment provisions of the

United States and Tennessee Constitutions; the equal protection clause of the United States Constitution;

the self-incrimination clauses of the United States and Tennessee Constitutions; void for vagueness

pursuant to the United States and Tennessee Constitutions; unlawful bill of attainder under the United

States and Tennessee Constitutions; the right to travel under the privileges and immunities clause and due

process clause of the United States Constitution; the due process and unconstitutional taking challenge in

connection with his family’s rights; and the due process violation in connection with mandatory therapy.

7

A facial challenge involves the constitutionality of the statute as written, while an as applied challenge is

evaluated considering how the statute operates in practice against the particular litigant and under the

facts of the instant case rather than hypothetical facts. State v. Crank, 468 S.W.3d 15, 24 n.5 (Tenn.

2015) (citing City of Memphis v. Hargett, 414 S.W.3d 88, 107 (Tenn. 2013)). In response to the motion

for summary judgment, Nunn insisted, “Petitioner is NOT making a facial challenge to CSL [community

supervision for life] and, indeed, is NOT assailing his CSL sentence. Petitioner is ONLY assailing the

conditions of CSL which Petitioner asserts are illegal. This is an ‘as applied,’ declaratory judgment suit.”

8

3. Whether the statutes governing community supervision for life

impose cruel and unusual punishment as applied to Nunn;

4. Whether the application of the statutes governing community

supervision for life violates the equal protection clause because the

Department of Correction is authorized to treat similarly situated

persons differently with individualized conditions of supervision;

5. Whether the legislative delegation of authority to the Department of

Correction was unlawful under the separation of powers doctrine of

the Tennessee Constitution;

6. Whether the statutes regarding community supervision for life are

unconstitutionally vague;

7. Whether the statutes imposing community supervision for life

violate Nunn’s constitutional right to be free from bills of attainder;

8. Whether the statutes governing community supervision for life

violate Nunn’s constitutional right to travel;

9. Whether the conditions of supervision violate Nunn’s family’s due

process rights and constitute a taking of his property without due

process;

10. Whether the Sex Offender Directives were promulgated without

compliance with the UAPA.

For the following reasons, we reverse in part, affirm in part, and remand for further

proceedings consistent with this opinion.

III. STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary judgment de

novo with no presumption of correctness. Bryant v. Bryant, 522 S.W.3d 392, 398-99

(Tenn. 2017) (citing Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235,

250 (Tenn. 2015)). This Court also reviews issues involving constitutional and statutory

interpretation de novo, affording no presumption of correctness to the trial court’s

conclusions. Crank, 468 S.W.3d at 21.

9

IV. DISCUSSION

A. Statute of Limitations

At the outset, Nunn argues that his claims for declaratory relief pursuant to

Tennessee Code Annotated section 4-5-225 were timely either because they were subject

to Tennessee’s general ten-year statute of limitations or because the continuing violation

doctrine applies to his section 1983 claim. Nunn asserts that the trial court erroneously

characterized the majority of his constitutional claims as federal civil rights claims

subject to the one-year statute of limitations.

1. Declaratory Judgment Actions & Statutes of Limitation

Generally, “in choosing the applicable statute of limitations, courts must ascertain

the gravamen of each claim” asserted. Benz-Elliott v. Barrett Enters., 456 S.W.3d 140,

149 (Tenn. 2015). We “first consider the legal basis of the claim and then consider the

type of injuries for which damages are sought.” Id. at 151.

However, according to the Tennessee Supreme Court,

Limitations statutes do not apply to declaratory judgments suits, as

such, because a declaratory judgment action is a mere procedural device by

which various types of substantive claims may be asserted. Accordingly, it

is necessary to ascertain the nature of the substantive claims sought to be

asserted in a declaratory judgment action in order to determine the

appropriate statute of limitations. And, if a special statute of limitations

applies to a special statutory proceeding, such as an election contest, it will

be applied when a declaratory judgment action is employed to achieve the

same result as the special proceeding.

Dehoff v. Attorney Gen., 564 S.W.2d 361, 363 (Tenn. 1978) (citation omitted). For a

declaratory judgment action, the appropriate statute of limitations depends on the nature

of the substantive claims sought to be asserted. Taylor v. Reynolds, No. 93-552-I, 1994

WL 256286, at *1 (Tenn. Ct. App. June 10, 1994). A declaratory judgment action is

time-barred if relief on the direct claim would also be barred. Kielbasa v. B & H Rentals,

LLC, No. M2002-00129-COA-R3-CV, 2003 WL 21297315, at *4 (Tenn. Ct. App. May

22, 2003). “‘A contrary rule would allow the plaintiff to make a mockery of the statute

of limitations by the simple expediency of creative labeling.’” Id. (quoting Int’l Ass’n of

Machinists & Aerospace Workers v. Tenn. Valley Auth., 108 F.3d 658, 668 (6th Cir.

1997)).

10

Here, Nunn originally sought declaratory relief under Tennessee’s Declaratory

Judgment Act and under 42 U.S.C. § 1983. In his amended complaint, he sought a

declaratory judgment under Tennessee Code Annotated section 4-5-225 of the UAPA and

under 42 U.S.C. § 1983. At the outset, Nunn suggests that because he is now seeking

relief under the UAPA rather than the Declaratory Judgment Act, he is somehow entitled

to a different limitations period. We respectfully disagree. Initially, it is important to

recognize that a declaratory judgment action filed pursuant to Tennessee Code Annotated

section 4-5-225 is fundamentally different than a petition for judicial review of a final

order of an administrative agency under section 4-5-322 of the UAPA. Taylor, 1994 WL

256286, at *2. The declaratory judgment action is also “distinct from” the administrative

proceeding in which the affected person petitioned the agency for a declaratory order.

Nonprofit Hous. Corp. v. Tenn. Hous. Dev. Agency, No. M2014-01588-COA-R3-CV,

2015 WL 5096181, at *3 n.4 (Tenn. Ct. App. Aug. 27, 2015). A declaratory judgment

action filed pursuant to section 4-5-225 is “an original action for a declaratory judgment.”

Pickard v. Tenn. Dep’t of Env’t & Conservation, No. M2011-01172-COA-R3-CV, 2012

WL 3329618, at *10 (Tenn. Ct. App. Aug. 14, 2012); Taylor, 1994 WL 256286, at *2.

Thus, we agree with the Defendants’ contention that section 4-5-225 “does not transform

a declaratory judgment action from a procedural vehicle into a substantive claim with its

own statute of limitations.”

We reject Nunn’s assertion that Hughley v. State, 208 S.W.3d 388 (Tenn. 2006), is

“virtually on point” and demands application of the general ten-year statute of limitations

to all declaratory judgment actions filed pursuant to section 4-5-225. We recognize that

in Hughley, the Tennessee Supreme Court began its opinion by stating, in general terms:

We granted this appeal to determine the statute of limitations

applicable to suits for declaratory judgments filed pursuant to Tennessee

Code Annotated section 4-5-225, a provision of the Uniform

Administrative Procedures Act, after an agency declines to issue a

declaratory order. We hold that, where an agency is petitioned to issue a

declaratory order pursuant to Tennessee Code Annotated section 4-5-223

and the agency declines to convene a contested case hearing and issue the

declaratory order, the petitioner is not subject to the sixty-day statute of

limitations established by Tennessee Code Annotated section 4-5-

322(b)(1). Instead, because the legislature has not expressly provided for a

statute of limitations, the petitioner’s complaint for declaratory judgment

under Tennessee Code Annotated section 4-5-225 is governed by

Tennessee’s general ten-year statute of limitations, codified at Tennessee

Code Annotated section 28-3-110(3).

Id. at 390. However, in our view, a close reading of Hughley reveals that the general ten-

11

year statute of limitations is not automatically applicable to all declaratory judgment suits

filed pursuant to the UAPA. The facts in Hughley involved a prisoner who was seeking a

declaratory judgment regarding the calculation of his sentence. Id. The trial court held

that his petition for declaratory judgment was untimely because it was not filed within

sixty days of the agency’s refusal to issue a declaratory order. Id. The sixty-day time

period was found in section 4-5-322 of the UAPA, which governs petitions for judicial

review. Id. The supreme court took the opportunity to emphasize the differences

between declaratory judgment actions filed under section 4-5-225 of the UAPA and

petitions for judicial review of an agency’s order pursuant to section 4-5-322 of the

UAPA. When an agency declines to issue a declaratory order, “the aggrieved petitioner

may seek a judicial determination of his concerns by filing a suit for declaratory

judgment in the chancery court of Davidson County,” and the UAPA “does not set forth a

time period within which the complainant must file his suit for declaratory judgment.”

Id. at 391. The court added,

The legislature may have intended to provide a specific limitations period

for declaratory judgment actions following an agency’s decision not to

convene a contested case hearing and issue a requested declaratory order. It

did not, however, do so. By the plain language of the applicable statute,

such a limitations period does not exist. Accordingly, we urge the

legislature to address this issue.

Id. at 394. Lastly, the court was required to determine “what limitations period applies to

Hughley’s suit.” Id. at 395. The court explained:

Neither section 4-5-225 nor any other provision of the Act expressly

provides a limitations period for a suit for declaratory judgment following

an agency’s summary refusal of a petition for declaratory order. Our Court

of Appeals has recognized that “when a petition for declaratory judgment

seeks the same relief that is otherwise available in another statutory

proceeding, then the filing of the declaratory judgment is governed by the

statute of limitations governing that statutory proceeding.” Newsome v.

White, No. M2001-03014-COA-R3-CV, 2003 WL 22994288, at *4 (Tenn.

Ct. App. Dec.22, 2003) (citing Dehoff v. Attorney General, 564 S.W.2d

361, 363 (Tenn. 1978)). In this case, however, Hughley is not seeking the

same relief that is otherwise available in another statutory proceeding. As

noted by our Court of Criminal Appeals, “[t]he validity of any sentence

reduction credits must be addressed through the avenues of the Uniform

Administrative Procedures Act.” Carroll v. Raney, 868 S.W.2d 721, 723

(Tenn. Crim. App. 1993) (emphasis added). Accordingly, Hughley’s

complaint is covered by Tennessee’s general ten-year statute of limitations.

12

See Tenn. Code Ann. § 28-3-110 (2000) (“The following actions shall be

commenced within ten (10) years after the cause of action accrued: ... (3)

All other cases not expressly provided for.”).

Id. (emphasis by underlining added, italics in original). The supreme court broadly stated

its conclusion as follows:

Where an agency declines to convene a contested case hearing in response

to a petition for declaratory order made pursuant to Tennessee Code

Annotated section 4-5-223 and issues only a letter of denial, a petitioner has

ten years in which to file a suit for declaratory judgment pursuant to

Tennessee Code Annotated section 4-5-225.

Id. However, we believe that the supreme court did not mean to foreclose the possibility

that another statute of limitations might apply “‘when a petition for declaratory judgment

seeks the same relief that is otherwise available in another statutory proceeding,’” and in

that case, “‘the filing of the declaratory judgment is governed by the statute of limitations

governing that statutory proceeding.’” Id. (quoting Newsome, 2003 WL 22994288, at

*4).8 Indeed, contrary to Nunn’s position on appeal, this Court has cited Hughley for the

notion that “[t]here is no universal statute of limitations applicable to all actions for

8

In Newsome, a prisoner requested a declaratory order from the Department of Correction, which was

denied, then he filed a petition for declaratory judgment pursuant to section 4-5-225 of the UAPA.

Newsome, 2003 WL 22994288, at *1. The Court of Appeals explained that his declaratory judgment

action was time-barred to the extent that it sought the same relief that would have been available if the

prisoner had timely filed a petition for common law writ of certiorari seeking review of the prison

disciplinary proceeding he sought to challenge. Id. at *4. The Court explained,

Petitions for declaratory judgment under both Tenn. Code Ann. § 4-5-225 and Tenn.

Code Ann. § 29-14-103 (2000) are not governed by specific statutes of limitations.

However, when a petition for declaratory judgment seeks the same relief that is otherwise

available in another statutory proceeding, then the filing of the declaratory judgment is

governed by the statute of limitations governing that statutory proceeding. Dehoff v.

Attorney General, 564 S.W.2d 361, 363 (Tenn. 1978) (a declaratory judgment

challenging a special referendum is governed by the statute of limitations applicable to

election contests); Kielbasa v. B & H Rentals, LLC, No. M2002-00129-COA-R3-CV,

2003 WL 21297315, at *3-5 (Tenn. Ct. App. May 22, 2003) (No Tenn. R. App. P. 11

application filed) (declaratory judgment challenging a decision of a board of zoning

appeals is governed by the statute of limitations for petitions for common-law writs of

certiorari).

Id. Noting the similarity between the relief Mr. Newsome sought in his petition for declaratory judgment

and the relief that would have been available to him through a common law writ of certiorari, the court

determined that the time requirement for filing a petition for writ of certiorari also applied to his petition

for declaratory judgment filed pursuant to the UAPA. Id.

13

declaratory judgment.” Witty v. Cantrell, No. E2010-02303-COA-R3-CV, 2011 WL

2570754, at *9 (Tenn. Ct. App. June 29, 2011); see also Allen v. City of Memphis, 397

S.W.3d 572, 582 (Tenn. Ct. App. 2012).

Again, because declaratory judgment actions do not have a specific statute of

limitations applicable to them “as such,” we must “ascertain the nature of the substantive

claims sought to be asserted” in the action in order to determine the applicable statute of

limitations. Dehoff, 564 S.W.2d at 363. And, according to Hughley, we must consider

whether Nunn’s petition for declaratory judgment “‘seeks the same relief that is

otherwise available in another statutory proceeding.’” Hughley, 208 S.W.3d at 395

(quoting Newsome, 2003 WL 22994288, at *4).

2. The Declaratory Claims asserted by Nunn

a. Section 1983 Claim

42 U.S.C. section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

(Emphasis added.) “Section 1983 creates a private cause of action for citizens whose

federal constitutional rights have been violated by persons acting under color of state

law.” Payne v. Breuer, 891 S.W.2d 200, 202 (Tenn. 1994).

Nunn’s amended complaint alleged that section 1983 “prohibits the State of

Tennessee from depriving [Nunn] of the ‘rights, privileges, and immunities secured by

the constitution[ and] laws’ in the United States.” The amended complaint alleged that

the federal constitutional violations Nunn alleged in his previous counts for declaratory

relief under state law also “constitute violations of 42 U.S.C. § 1983” due to “the

deprivation of civil rights under color of state law.”

We conclude that this section 1983 claim was subject to a one-year statute of

limitations. Tennessee Code Annotated section 28-3-104(a)(1)(B) provides a one-year

statute of limitations for “[c]ivil actions for compensatory or punitive damages, or both,

brought under the federal civil rights statutes.” Although this statute of limitations does

14

not specifically mention section 1983 actions seeking declaratory relief, it should also

encompass such actions, under the teaching of Dehoff and similar cases, because it would

govern the underlying direct claim sought to be asserted in the declaratory judgment

action. In other words, Nunn’s declaratory claim pursuant to section 1983 should be

governed by the same statute of limitations that would govern a direct claim for damages

under section 1983. See Kielbasa, 2003 WL 21297315, at *4. In Kielbasa, this Court

quoted a Maryland court’s analysis containing the following explanation: “‘if declaratory

relief is sought with reference to an obligation which has been breached and the right to

commence an action for ‘coercive’ relief upon the cause of action arising therefrom is

barred by the statute, the right to declaratory relief is likewise barred.’” Id. at *4 (quoting

Commercial Union v. Porter Hayden, 698 A.2d 1167, 1192-93 (Md. Ct. App. 1997)).

Stated differently, “‘the right to declaratory relief continues until the right to coercive

relief, as between the parties has itself been extinguished. . . . [T]he statutory period

should expire on the coercive and the declaratory causes of action simultaneously.’” Id.

at *3 (quoting Commercial Union, 698 A.2d at 1192-93).9 We find this reasoning

persuasive and conclude that Nunn’s claim for declaratory relief under section 1983 is

subject to the one year statute of limitations that would govern a claim for damages under

the statute.10 See Foster v. State, 150 S.W.3d 166, 167 (Tenn. Ct. App. 2004) (applying

the one year statute of limitations to a “motion for declaratory judgment” that was

essentially a civil rights action based on 42 U.S.C. § 1983).

Alternatively, Nunn argues that his section 1983 claim is not time-barred even

under the one year statute of limitations because “it falls under the continuing harm

exception.” He claims that “the violations underlying his federal civil rights claim are

continuing and growing worse.” Although Nunn does not identify any specific date on

which the statute of limitations should begin to run under this theory, he claims that the

9

The Maryland Court originally quoted these two passages, respectively, from Maguire v. Hibernia

Savings & Loan Soc., 23 Cal. 2d 719, 146 P.2d 673, 681 (Cal. 1944) and a Comment entitled,

Developments in the Law: Declaratory Judgments, 62 Harv. L. Rev. 787 (1949).

10

Federal courts have reached a similar conclusion. See, e.g., Cox v. Shelby State Cmty. Coll., 48 F.

App’x 500, 507 (6th Cir. 2002) (noting that Tennessee’s statute of limitations for federal civil rights

claims does not expressly limit “claims for prospective non-monetary relief” but nonetheless concluding

that a claim for injunctive relief is subject to the one-year statute of limitations). Because Congress failed

to provide a specific statute of limitations for section 1983 actions, federal courts have looked to the state

statute of limitations “most analogous” to the particular 1983 action. Owens v. Okure, 488 U.S. 235, 239

(1989). To eliminate confusion and conflicting decisions, the United States Supreme Court has declared

that section 1983 claims are best characterized as personal injury actions, and “a State’s personal injury

statute of limitations should be applied to all § 1983 claims.” Id. Tennessee has a one-year statute of

limitations specific to “[c]ivil actions for compensatory or punitive damages, or both, brought under the

federal civil rights statutes,” Tenn. Code Ann. § 28-3-104(a)(1)(B), and a one-year statute of limitations

for “injuries to the person.” Tenn. Code Ann. § 28-3-104(a)(1)(A). Again, Nunn seeks declaratory relief

and not damages. Either way, even if we apply Tennessee’s one-year personal injury statute of

limitations instead of the one-year statute for federal civil rights actions, the outcome is the same.

15

“continuing violation is exemplified” by the fact that the Department of Correction

increased the number of his Halloween curfew days in 2014.11 Nunn claims that he is

required to “endure” the conditions of supervision every day of his life and asserts that

the “very application of these conditions is, in itself, the embodiment of a continuing

violation of his constitutional rights.”

“The continuing violation doctrine is a federal common law doctrine[.]” Heath v.

Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 740 (5th Cir.

2017). “The continuing violation doctrine was developed by federal courts interpreting

federal anti-discrimination statutes, particularly Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq. (“Title VII”).” Booker v. The Boeing Co., 188 S.W.3d 639,

643 (Tenn. 2006). At the outset, we note that federal courts have not been consistent as

to whether the continuing violation doctrine is an accrual rule or a tolling doctrine.12 The

11

In this section of Nunn’s brief, he contends that “supervision is now more rigid” than in years past and

suggests that the Sex Offender Directives are now applied in a more restrictive manner, but he does not

point to any new conditions that have been imposed on him that differ from those generally authorized

when he signed the Sex Offender Directives in 2009. For instance, Nunn complains about the increases

in Halloween curfew days over the years, but the Sex Offender Directives he signed in 2009 expressly

provided for curfews, and the Halloween restrictions had been in place since about 2006. Nunn signed a

document agreeing to abide by the Halloween restrictions and curfew on September 16, 2009, more than

one year before he filed his complaint on September 29, 2010.

12

The Seventh Circuit noted this disagreement in Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001):

Some cases say that the doctrine of continuing violation is a tolling doctrine, Davis v.

United States Dept. of Justice, 204 F.3d 723, 726 (7th Cir. 2000) (per curiam); Herman v.

National Broadcasting Co., 744 F.2d 604, 607 (7th Cir. 1984); Matson v. Burlington

Northern Santa Fe R.R., 240 F.3d 1233, 1236-37 (10th Cir. 2001); Fletcher v. Union

Pacific R.R., 621 F.2d 902, 908 (8th Cir. 1980), and if this is right it would, because this

is a section 1983 suit, bring Illinois law [and its doctrine of continuing violation] into

play. . . . But the usual and it seems to us the correct characterization of the doctrine of

continuing violation is that it is a doctrine governing accrual, e.g., Wilson v. Giesen, []

956 F.2d [738, 743 (7th Cir. 1992)]; Taylor v. Meirick, [] 712 F.2d [1112, 1118-19, (7th

Cir. 1983)]; Newell Recycling Co. v. EPA, 231 F.3d 204, 206-07 (5th Cir. 2000);

Pisciotta v. Teledyne Industries, Inc., 91 F.3d 1326, 1332 (9th Cir. 1996) (per curiam);

Page v. United States, 729 F.2d 818, 821 (D.C. Cir.1984), not a tolling doctrine . . . .

Id.; see also Katz v. Vill. of Beverly Hills, 677 F. App’x 232, 236 (6th Cir. 2017) (“the running of the

limitations period can be tolled under the ‘continuing violation’ doctrine”); Printup v. Dir., Ohio Dep’t of

Job & Family Servs., 654 F. App'x 781, 790 n.8 (6th Cir. 2016) (explaining that “continuing violations . .

. toll the applicable statute of limitations” but ultimately concluding that “the continuing violation

doctrine did not delay the accrual of Printup’s causes of action”); Guba v. Huron Cty., 600 F. App’x 374,

379 (6th Cir. 2015) (referencing “the continuing violation doctrine -- a common-law limited exception to

the accrual of a cause of action”); Cox, 48 F. App’x at 507 (considering the federal continuing violation

doctrine in a section 1983 case after noting that federal law governs when the cause of action accrues, but

stating, “We toll a statute of limitations if there is a continuing violation[.]”)

16

distinction is particularly important in a section 1983 case, where the accrual date of the

cause of action is a question of federal law, but state law generally provides the length of

the statute of limitations and the applicable tolling rules. Wallace v. Kato, 549 U.S. 384,

388, 394 (2007). In other words, the federally-recognized continuing violation doctrine

cited by Nunn on appeal only applies in this case if it is an accrual rule. (Nunn cites no

Tennessee law regarding tolling.) We further note that the federal continuing violation

doctrine is not universally applied by federal courts in section 1983 cases. See, e.g.,

Gosselin v. Kaufman, 656 F. App’x 916, 919 (10th Cir. 2016) (“we have never formally

adopted the continuing violation doctrine for § 1983 actions”). The Sixth Circuit

“employs the continuing violations doctrine most commonly in Title VII cases, and rarely

extends it to § 1983 actions.” Agrawal v. Montemagno, 574 F. App’x 570, 575 (6th Cir.

2014). We do not find it necessary to reconcile these conflicting federal decisions in the

case before us because we conclude that the continuing violation doctrine would not save

Nunn’s claims even if it were to be applied in this context.

The Sixth Circuit applies the following test for a continuing violation in the

context of a section 1983 action: “[a] ‘continuous violation’ exists if: (1) the defendants

engage in continuing wrongful conduct; (2) injury to the plaintiff[] accrues continuously;

and (3) had the defendants at any time ceased their wrongful conduct, further injury

would have been avoided.” Broom v. Strickland, 579 F.3d 553, 555 (6th Cir. 2009)

(quoting Hensley v. City of Columbus, 557 F.3d 693, 697 (6th Cir. 2009)). When the

plaintiff alleges a continuing violation in an attempt to toll the running of the statute of

limitations, the court will “look to what event ‘should have alerted the average lay person

to protect his rights.’” Cox, 48 F. App’x at 507 (quoting Dixon v. Anderson, 928 F.2d

212, 218 (6th Cir. 1991)). In Broom, the Sixth Circuit rejected a death-sentenced

prisoner’s argument that the continuing violation doctrine tolled the statute of limitations

for his section 1983 action challenging Ohio’s method of execution. Broom, 579 F.3d at

555. The prisoner argued that the violation “continues anew every single day” that the

protocol remains in place. Id. The court explained, “A continuing violation is

occasioned by continual unlawful acts, not continual ill effects from an original

violation.” Id. (citing Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th

Cir. 2007)). The court reasoned that the prisoner was challenging “the effects from the

adoption of the lethal-injection protocol” and “the continued risk of future harm.” Id. at

555-56. “The critical distinction in the continuing violation analysis is whether the

plaintiff complains of the present consequence of a one time violation, which does not

extend the limitations period, or the continuation of that violation into the present, which

does.” Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003) (internal quotation omitted).

The Sixth Circuit’s opinion in Printup v. Director, Ohio Department of Job and

Family Services, 654 F. App’x 781 (6th Cir. 2016), is also instructive. There, a teacher

brought a section 1983 action against a county, alleging that it failed to properly train

17

social workers who placed her on Ohio’s Central Registry on Child Abuse and Neglect as

an “indicated” child abuse perpetrator, which caused her to lose her job. Id. at 783. The

district court concluded that her claims were time-barred because the statute of

limitations began to run when she was deemed a child abuser and lost her employment.

Id. at 784. On appeal, the Sixth Circuit rejected her argument based on the continuing

violation doctrine, explaining that the teacher’s “continued appearance on the Central

Registry and lack of employment at [the school] were continual ill effects of her initial

designation as a child abuser; they were not occasioned by continual unlawful acts.” Id.

at 789-90.

Other courts have found the continuing violation doctrine inapplicable to sex

offenders asserting section 1983 claims comparable to those in this case. In Cibula v.

Fox, 570 F. App’x 129, 131 (3rd Cir. 2014), a prisoner brought a section 1983 action

against employees of the Pennsylvania Department of Corrections, alleging that they

violated his due process rights by classifying him as a sex offender without a hearing and

violated the Eighth Amendment prohibition against cruel and unusual punishment by

subjecting him to abuse and harassment based on this improperly imposed sex offender

status. Specifically, the prisoner alleged that the corrections officers disclosed his sex

offender status to guards and inmates, which resulted in other inmates abusing and

harassing him. Id. at 132. The complaint was dismissed because it was not filed within

the statute of limitations for section 1983 claims. Id. at 133. The Third Circuit affirmed,

concluding that the prisoner’s claim accrued when he was summarily labeled as a sex

offender. Id. at 134. The court rejected the prisoner’s claim that the continuing violation

doctrine applied, explaining that “the abuse and harassment Cibula allegedly suffered as a

result of these disclosures is best viewed as merely the consequences of the original act of

deeming him a sex offender[.]” Id. at 136 (internal quotation omitted). In other words,

the court explained, these were continual ill effects of the original violation and not

continual unlawful acts. Id.

Other courts have reached similar conclusions. See, e.g., Meggison v. Bailey, 575

F. App’x 865, 867 (11th Cir. 2014) (“Here, the act Meggison contends violated his due-

process rights was his classification as a sex offender subject to Florida’s registration

requirements. This classification will continue to have effects on Meggison into the

future, but a new act has not occurred every time Meggison feels one of those continuing

effects.”); Easterling v. Thurmer, No. 14-CV-1392, 2015 WL 9463156, at *2 (E.D. Wis.

Dec. 28, 2015) (rejecting the plaintiff’s argument that his continued ineligibility to visit

his daughter until he completed sex offender treatment resulted in the statute of

limitations commencing anew each day for purposes of his 1983 claim, as it was the

natural consequence of the original decision regarding his treatment requirement); Rothe

v. Sloan, No. 14-CV-03175-CMA-KMT, 2015 WL 3457894, at *2 (D. Colo. May 29,

2015) (concluding that the plaintiff’s injury accrued when he was required to register as a

18

sex offender, as he was aware then of the adverse consequences of registration, and

“although [the plaintiff] contends that the latest sex offender registry regime is

substantively more punitive than prior statutes, this is not an adequate basis for tolling”);

Matthews v. Rice, 2013 WL 5276128, at *2 (D. Kan. Sept. 28, 2013) (“plaintiff knew or

should have known of the alleged constitutional violations giving rise to his claims at the

time when he was first classified as a sex offender”); Pollard v. Clemants, No. 11-CV-

1810-RBJ-KMT, 2012 WL 2974676, at *3 (D. Colo. July 20, 2012) (rejecting a

prisoner’s argument that the continuing violation doctrine applied because his

classification as a sex offender caused him “on an ongoing daily basis to lose earned time

credits,” as these were only continuing effects of the original classification as a sex

offender); Munsch v. Evans, No. 11-CV-2271 JFB ETB, 2012 WL 528135, at *14

(E.D.N.Y. Feb. 17, 2012) (finding a sex offender’s section 1983 claim regarding the

conditions of his community supervision for life was time-barred, as “the decision to

impose conditions to plaintiff’s lifetime supervision was a one time act with continued

consequences,” and therefore the continuing violation doctrine did not apply) (quotation

omitted); Moore v. Lappin, No. 3:08CV344/MCR/EMT, 2009 WL 3336082, at *3 (N.D.

Fla. Oct. 15, 2009) (finding the continuing violation doctrine did not apply to the

plaintiff’s due process claim in connection with being placed on the sex offender registry

because he “complain[ed] of the present consequence of a one time violation, which does

not extend the limitations period”); compare Washington v. Texas Dep’t of Criminal

Justice, 653 F. App’x 370, 372 (5th Cir. 2016) (rejecting a sex offender’s argument that

“his continuation on the sex offender caseload caused him continuing harm” within the

meaning of a Texas exception to the statute of limitations for his section 1983 claim, as

he alleged “continuing injury . . . not wrongful continuing conduct”).13

Here, we also find that the continuing violation doctrine, if applied in this context,

would not save Nunn’s section 1983 claim. He seeks to challenge his placement under

community supervision pursuant to the Sex Offender Directives upon his release from

prison in 2009 (over his objection) and the present consequences or “continual ill effects”

of that placement. Nunn’s placement under supervision pursuant to the Sex Offender

Directives in 2009 was “an event that would alert a potential civil rights plaintiff to

13

Although the Tenth Circuit has not formally adopted the continuing violation doctrine in section 1983

cases, in Romero v. Lander, 461 F. App’x 661, 666-67 (10th Cir. 2012), the court held that a prisoner’s

section 1983 claim accrued when he was initially classified as a sex offender, and the fact that he endured

adverse consequences for years thereafter did not extend the statute of limitations. The court noted that

the statute begins to run on a section 1983 claim when the injury occurs, not when the consequence of that

injury manifests itself. Id. at 667. In Romero, the restrictions for sex offenders were reimposed on the

prisoner during subsequent incarcerations and were more harsh than those originally imposed. Still, the

court explained, “even if we accepted Mr. Romero’s assertion that he lacked knowledge of the future

impact of his classification, . . . ‘[a] plaintiff need not know the full extent of his injuries before the statute

of limitations begins to run.’” Id. at 669 (quoting Indus. Constructors Corp. v. United States Bureau of

Reclamation, 15 F.3d 963, 969 (10th Cir. 1994)).

19

protect his rights.” See Cox, 48 Fed. App’x at 507. We reject Nunn’s suggestion that the

statute of limitations would commence anew each day that he is subject to those

conditions of supervision or each time one of the conditions set forth in the Sex Offender

Directives is applied to him.

In sum, we conclude that the one year statute of limitations for civil actions

brought under the federal civil rights statutes applies to Nunn’s section 1983 claim, and

he is not entitled to relief under the continuing violation doctrine. The accrual date for a

section 1983 cause of action is a question of federal law. Wallace, 549 U.S. at 388.

“Ordinarily, the limitation period starts to run when the plaintiff knows or has reason to

know of the injury which is the basis of his action.” Eidson v. State of Tenn. Dep’t of

Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007). The trial court found that Nunn

knew he was subject to the 1999 Sex Offender Directives when he was released from

prison on March 28, 2009, and placed under such supervision pursuant to those Sex

Offenders Directives over his objection. Using this “latest possible” date, the trial court

found that Nunn’s civil rights claims filed in September 2010 were time-barred.14 Nunn’s

brief on appeal likewise states, “The date from which the statute of limitation must be

marked is March 28, 2009.” He measures the statute of limitations “from the date the

correctional officer presented him with the conditions he was to endure for the remainder

of his life.” Aside from Nunn’s argument regarding the continuing violation doctrine,

which we have already rejected, the parties present no issue on appeal challenging the

trial court’s conclusion that the statute of limitations began to run on March 28, 2009,

when the institutional parole officer placed Nunn under supervision pursuant to the Sex

Offender Directives over his objection. As such, we will not review the trial court’s

conclusion as to that issue. See, e.g., Jackson v. City of Cleveland, No. E2015-01279-

COA-R3-CV, 2016 WL 4443535, at *8 n.6 (Tenn. Ct. App. Aug. 22, 2016), perm. app.

denied (Tenn. Dec. 15, 2016) (considering the appellant’s argument regarding the

continuing violation doctrine but noting that he raised no argument about the discovery

rule and therefore waived any consideration of that issue).15 The trial court properly

14

The trial court and the parties proceeded as if the substitution of the Department of Correction in the

2014 amended complaint (pursuant to the agreed order) would relate back to the filing of the original

complaint against the Board of Probation and Parole in 2010. No issue is raised on appeal regarding this

subject. In fact, the Defendants’ brief “presumes the amended complaint relates back to the filing date of

the original complaint.” As a result, we have not analyzed the issue on appeal.

15

Nunn has argued throughout this proceeding that “[t]he date from which the statute of limitation must

be marked is March 28, 2009.” He included this statement in his response to the motion for summary

judgment before the trial court and repeats it in his brief on appeal. He reasoned that “because we are

dealing with a 10-year statute of limitation for declaratory judgments involving the Department of

Correction, [his] suit filed September 29, 2010 was timely since it was less than two years since he had

been released from prison when the directives were applied to him.” Nunn has continued to measure the

limitations period “from the date the correctional officer presented him with the conditions he was to

endure for the remainder of his life” on March 28, 2009. The trial court found that the statute of

20

found Nunn’s section 1983 claim time-barred pursuant to the one year statute of

limitations and properly granted summary judgment to the Defendants on this claim.

b. Alleged Violations of the Federal Constitution

Next, we must determine the statute of limitations applicable to Nunn’s various

“counts” for declaratory relief under Tennessee law asserting violations of the United

States Constitution. Nunn’s amended complaint alleged the following claims for

declaratory relief based on violations of the United States Constitution, which the

Defendants claimed were time-barred:

 Ex post facto violations;

 Violation of his due process right to earn a living;

 Cruel and unusual punishment;

limitations commenced on March 28, 2009. In the statement of issues listed in Nunn’s brief on appeal, he

raised one lengthy issue regarding the statute of limitations:

Since Petitioner’s case is one for declaratory relief under Tenn. Code Ann. § 4-5-225

which authorizes relief if the agency rule “violates constitutional provisions, exceeds the

statutory authority of the agency, was adopted without compliance with the rulemaking

procedures provided for in this chapter or otherwise violates state or federal law,” which

carries a 10-year period of limitation, whether the chancellor erroneously characterized

the suit as exclusively a federal civil rights complaint, dismissing it because of the 1-year

federal civil rights limitations period; in any event the continuing and escalating harm

constitutes an exception to the federal civil rights limitation.

Although not a model of clarity, this issue fairly encompasses two issues: (1) whether the trial court erred

in applying the one year statute of limitations for federal civil rights claims rather than the general ten

year statute of limitations; and (2) whether the continuing harm exception should apply to his section

1983 claim. After repeatedly arguing throughout his brief that the statute of limitations commenced on

March 28, 2009, and presenting the aforementioned issue, Nunn appeared to change course. His brief

stated, “The issues here assume the operative date for the communicant of the statute of limitations is

March 28, 2009 when Petitioner was placed on CSL [community supervision for life] under the

jurisdiction of the TBOPP.” Nunn then briefly suggested that the statute of limitations may have

“commenced anew” either when the Department of Correction assumed jurisdiction over community

supervision for life in 2012 or when it implemented regulations in 2014. However, Nunn cited no

authority for this argument and did not cite to any location in the record where he pursued this argument

before the trial court. We decline to consider this late-raised alternative argument because it was not

listed as an issue presented for review in Nunn’s brief. “‘Courts have consistently held that issues must

be included in the Statement of Issues Presented for Review required by Tennessee Rules of Appellate

Procedure 27(a)(4). An issue not included is not properly before the Court of Appeals.’” Bunch v.

Bunch, 281 S.W.3d 406, 410 (Tenn. Ct. App. 2008) (quoting Hawkins v. Hart, 86 S.W.3d 522, 531

(Tenn. Ct. App. 2001)). Our supreme court has clearly stated that “an issue may be deemed waived when

it is argued in the brief but is not designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).”

Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012).

21

 Violation of equal protection;

 Violation of the self-incrimination clause;

 Unlawful bill of attainder;

 Violation of his right to travel under the privileges and immunities clause

and due process clause;

 Violation of due process rights and an unconstitutional taking due to the

impact on his family;

 Violation of due process in connection with the mandatory therapy

requirement;

 Violation of due process due to vagueness.16

The trial court correctly noted that Nunn “seeks declaratory relief based on the same

violations of his federal constitutional rights that support his § 1983 claims[.]” This

conclusion is supported by the record and not disputed by Nunn. In fact, in response to

the motion for summary judgment, Nunn acknowledged that he was seeking “declaratory

relief under state declaratory judgment statutes and pendant claims under federal statutes

permitting identical declaratory relief.” Still, he insisted that his section 1983 claim was

irrelevant to his “state law declaratory relief claim, albeit citing federal constitutional

violations.” Nunn claimed that his reliance on federal constitutional claims as the basis

for seeking declaratory relief did not transform his claims into “federal civil rights”

claims because he was seeking declaratory relief pursuant to section 4-5-225 of the

UAPA. Nunn insists that “parties may assert alternative claims and defenses and request

alternative relief in a single complaint.” Benz-Elliott v. Barrett Enters., 456 S.W.3d 140,

148 (Tenn. 2015). When that happens, courts must ascertain the gravamen of each claim

in order to choose the applicable statute of limitations. Id. at 149.

Clearly, Nunn has pursued two different avenues for seeking declaratory relief

16

We will include the count alleging vagueness in our discussion of the statute of limitations. The section

of the trial court’s order granting summary judgment based on the statute of limitations referenced the

dismissed counts by count number and included the count number corresponding to Nunn’s allegation of

unconstitutional vagueness. In addition, though, the trial court went on to substantively analyze the

vagueness issue based on the court’s finding that the vagueness issue was a facial challenge to the statutes

governing community supervision for life. Nunn has insisted throughout this proceeding that he is not

asserting a facial challenge. When interpreting a trial court’s order, “we ascertain the intent of the court,

and, if possible, make the order in harmony with the entire record in the case and to be such as ‘ought to

have been rendered.’” Byrnes v. Byrnes, 390 S.W.3d 269, 277 (Tenn. Ct. App. 2012) (quoting Lamar

Adver. Co. v. By-Pass Partners, 313 S.W.3d 779, 786 (Tenn. Ct. App. 2009)). The determinative factor is

the intention of the court as collected from all parts of the judgment. Corrozzo v. Corrozzo, No. M2012-

01317-COA-R3-CV, 2013 WL 4107625, at *7 (Tenn. Ct. App. Aug. 13, 2013). We will treat the trial

court’s order as granting summary judgment on the vagueness count based on the statute of limitations to

the extent that it was an as-applied challenge but substantively analyzing the issue to the extent that Nunn

raised a facial challenge.

22

regarding the same alleged violations of the United States Constitution. He sought

declaratory relief pursuant to 42 U.S.C. § 1983, and he sought declaratory relief pursuant

to Tennessee Code Annotated section 4-5-225 of the UAPA. Examining the nature and

scope of 42 U.S.C § 1983 is helpful. Section 1983 “has become the principal civil

remedy for the enforcement of federal constitutional and statutory rights.” King v. Betts,

354 S.W.3d 691, 702 (Tenn. 2011). However, “[s]ection 1983 does not create or confer

substantive rights.” Id. (citing Chapman v. Houston Welfare Rights Org., 441 U.S. 600,

617 (1979) (“[O]ne cannot go into court and claim a ‘violation of § 1983’—for § 1983 by

itself does not protect anyone against anything.”)). Instead, section 1983 “provides a

remedy for violations of rights protected by the United States Constitution or by a federal

statute other than Section 1983 itself.” Id. (citing Albright v. Oliver, 510 U.S. 266, 271

(1994); Graham v. Connor, 490 U.S. 386, 393–94 (1989); Baker v. McCollan, 443 U.S.

137, 144 n.3 (1979)). A plaintiff who files suit pursuant to section 1983 “‘must point to

another source, either the United States Constitution or federal statutes, for the

substantive rights they seek to enforce.’” Id. (quoting 1 Bodensteiner & Levinson § 1:1,

at 1-5) (emphasis added).

Section 1983 “provides ‘a uniquely federal remedy against incursions under the

claimed authority of state law upon rights secured by the Constitution.’” Wilson v.

Garcia, 471 U.S. 261, 271-72 (1985) (quoting Mitchum v. Foster, 407 U.S. 225, 239

(1972)). “[I]t is ‘the purest coincidence,’ when state statutes or the common law provide

for equivalent remedies.” Id. at 272 (quoting Monroe v. Pape, 365 U.S. 167, 196 n.5

(1961) (Harlan, J., concurring)). However, the section 1983 remedy “is, in all events,

‘supplementary to any remedy any State might have.’” Id. (quoting McNeese v. Bd. of

Educ., 373 U.S. 668, 672 (1963)). “Section 1983 does not displace, but rather

supplements, the remedies that may be available under state law.” King, 354 S.W.3d at

702 n.15.

Pursuant to the Tennessee’s version of the UAPA, a chancery court considering a

petition for declaratory judgment is authorized to declare the challenged rule or order

invalid if it “violates constitutional provisions.” Tenn. Code Ann. § 4-5-225(c). The

question, then, is whether the UAPA declaratory judgment action asserting constitutional

violations should be governed by the statute of limitations applicable to a section 1983

claim. We conclude that it should not.

Returning to the rules set forth in Dehoff, the UAPA declaratory judgment action

“is a mere procedural device by which various types of substantive claims may be

asserted,” and we must “ascertain the nature of the substantive claims sought to be

asserted in a declaratory judgment action in order to determine the appropriate statute of

limitations.” Dehoff, 564 S.W.2d at 363. Here, the substantive claims sought to be

asserted in the section 1983 action and the UAPA action are identical – violations of

23

federal constitutional rights. But the substantive claim is not the section 1983 claim

itself. Although Tennessee Code Annotated section 28-3-104(a)(1)(B) provides a one

year statute of limitations for “[c]ivil actions . . . brought under the federal civil rights

statutes,” it does not state that it applies to all civil actions brought for violations of

federal constitutional rights. Thus, examining the substantive rights asserted in this

UAPA declaratory judgment action does not lead us to an otherwise applicable statute of

limitations.

Dehoff also provides that “if a special statute of limitations applies to a special

statutory proceeding, such as an election contest, it will be applied when a declaratory

judgment action is employed to achieve the same result as the special proceeding.”

Dehoff, 564 S.W.2d at 363. As the court recognized in Hughley, “‘when a petition for

declaratory judgment seeks the same relief that is otherwise available in another statutory

proceeding, then the filing of the declaratory judgment is governed by the statute of

limitations governing that statutory proceeding.’” Hughley, 208 S.W.3d at 395 (quoting

Newsome, 2003 WL 22994288, at *4). In Dehoff, the claims for declaratory relief

asserted by the plaintiffs “amount[ed] to an election contest,” and because the petition

was not filed within the ten-day limitation period for such contests, it was time-barred.

Dehoff, 564 S.W.2d at 364. In Newsome, this reasoning was applied to a UAPA petition

for declaratory judgment that sought the same relief that would have been available

through a timely filed petition for writ of certiorari, which was “[t]he only procedural

vehicle for obtaining direct judicial review of a prison disciplinary proceeding.”

Newsome, 2003 WL 22994288, at *4.17 And, in Johnson v. Metropolitan Government for

Nashville Davidson County, Tennessee, 54 S.W.3d 772, 774 (Tenn. Ct. App. 2001), the

court similarly treated a petition for declaratory judgment as an untimely petition for a

writ of certiorari because that was “the only mechanism by which a court may review

such administrative decisions.” The same reasoning has also been applied to declaratory

judgment actions seeking the same relief that would have been available in a quo

warranto proceeding to challenge annexation. See Allen v. City of Memphis, 397 S.W.3d

572, 582 (Tenn. Ct. App. 2012) (finding a petition for declaratory judgment filed well

beyond the quo warranto limitation period was time-barred). “With rare exception, the

appropriate avenue by which to contest an annexation . . . is the filing of a timely action

in quo warranto.” Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 712

17

Citing language from Dehoff, several other cases have also applied the requirements for filing a petition

for writ of certiorari to a declaratory judgment action seeking the same relief. See State ex rel. Moore &

Assocs. v. West, 246 S.W.3d 569, 581 (Tenn. Ct. App. 2005) (“Where the relief sought in a declaratory

judgment action is the same relief that is available under common law writ of certiorari, the action will be

treated as a certiorari action, and the requirements of such an action will be applied.”); Campbell v.

Bedford Cty. Reg’l Planning Comm’n, No. M2003-00025-COA-R3-CV, 2004 WL 626724, at *1 (Tenn.

Ct. App. Mar. 29, 2004) (dismissing the declaratory judgment action as untimely); Kielbasa, 2003 WL

21297315, at *3 (same).

24

(Tenn. 2009). In each of these cases – election contests, quo warranto proceedings, and

certiorari proceedings -- the “special statutory proceeding” that would have been

available for the plaintiff to seek the same relief was in the nature of a mandatory

procedural mechanism or proceeding. Accordingly, the plaintiff was not permitted to

bypass that procedure by simply filing a petition for declaratory judgment.

The situation before us is different. Although Nunn’s UAPA declaratory

judgment action seeks the same relief that is otherwise available through another

statutory remedy, section 1983 is not a mandated statutory proceeding like an election

contest, quo warranto action, or petition for writ of certiorari. This distinction has been

noted under the federal rules. See Katzenbach v. McClung, 379 U.S. 294, 296 (1964)

(“even though Rule 57 of the Federal Rules of Civil Procedure permits declaratory relief

although another adequate remedy exists, it should not be granted where a special

statutory proceeding has been provided”) (emphasis added).18

In Highwoods Properties, Inc., 297 S.W.3d at 709, the Tennessee Supreme Court

stated, “Subject to some exceptions, a declaratory judgment action should not be

considered where special statutory proceedings provide an adequate remedy.” The court

said that the plaintiffs in that case -- “having allowed their special statutory [quo

warranto] cause of action to expire -- are not entitled to a second bite of the apple under

the Declaratory Judgment Act.” Id. However, we conclude that the same reasoning does

not extend to Nunn’s situation. A section 1983 claim is “supplementary to whatever

relief is afforded by state common-law or statutory remedies.” Collard v. Kentucky Bd.

of Nursing, 896 F.2d 179, 184 (6th Cir. 1990). “Although principles of collateral

estoppel and res judicata may effectively keep civil rights plaintiffs from getting two

bites at the apple, they, at least initially, often have two apples to bite.” Id.

Considering these principles, we conclude that Nunn’s UAPA declaratory

judgment claim asserting violations of the United States Constitution is not subject to the

one-year statute of limitations that governs his section 1983 claim. Even though Nunn is

attempting to utilize the UAPA declaratory judgment action to achieve the same result as

his section 1983 claim, his section 1983 claim is not the type of “special statutory

proceeding” discussed in Dehoff that requires us to apply its statute of limitations.

As it is, we are left to determine what statute of limitations applies to Nunn’s

18

The advisory commission comment to Federal Rule of Civil Procedure 57, regarding declaratory

judgments, further notes the distinction: “A declaration may not be rendered if a special statutory

proceeding has been provided for the adjudication of some special type of case, but general ordinary or

extraordinary legal remedies, whether regulated by statute or not, are not deemed special statutory

proceedings.” According to the comment, “the fact that another remedy would be equally effective

affords no ground for declining declaratory relief.” Fed. R. Civ. P. 57 cmt.

25

UAPA declaratory judgment action asserting violations of the United States Constitution.

The procedural mechanism of a declaratory judgment action is not subject to a statute of

limitations “as such,” Dehoff, 564 S.W.2d at 363, and we discern no statute of limitations

that would specifically apply to asserted violations of substantive constitutional rights.

“Where no specific statute of limitations can be identified, the general ten-year statute of

limitations applies.” Witty, 2011 WL 2570754, at *9. Tennessee Code Annotated section

28-3-110(a)(3) provides that “[t]he following actions shall be commenced within ten (10)

years after the cause of action accrued: . . . [a]ll other cases not expressly provided for.”

Finding no statute of limitations applicable to Nunn’s UAPA declaratory claims alleging

violations of the United States Constitution, we conclude that such claims are subject to

the general ten-year statute of limitations. See Hughley, 208 S.W.3d at 395 (applying the

ten-year statute of limitations to a prisoner’s UAPA declaratory judgment action where

he was not seeking the same relief otherwise available in another statutory proceeding).

c. Alleged Violations of the Tennessee Constitution

Finally, we consider the counts in Nunn’s complaint seeking declaratory relief

under the UAPA for alleged violations of the Tennessee Constitution. Again, when

considering a request for a declaratory judgment pursuant to the UAPA, the chancery

court is authorized to determine whether the challenged rule or order “violates

constitutional provisions.” Tenn. Code Ann. § 4-5-225(c). Nunn’s complaint sought

declaratory relief for the following claims under the Tennessee Constitution, which the

Defendants claimed were time-barred:

 Ex post facto violation;

 Violations of his due process rights;

 Cruel and unusual punishment;

 Violation of his right against self-incrimination;

 Violation of due process due to vagueness; and

 Unlawful bill of attainder.19

In their motion for summary judgment, the Defendants asserted that “the one-year statute

of limitations for § 1983 actions also applies to violations of the Tennessee Constitution,

which often mirror the federal claims.” As authority for this statement, the Defendants

cited a footnote from Mata-Cuellar v. Tennessee Department of Safety, No. 3:10-0619,

2010 WL 3732172, at *4 n.2 (M.D. Tenn. Sept. 20, 2010), in which the district judge

19

We do not mention here Nunn’s claim regarding separation of powers under the Tennessee Constitution

because the Defendants did not move for summary judgment on this claim based on the statute of

limitations, and the trial court did not find that it was time-barred. This claim will be discussed separately

hereinafter.

26

stated, “The court could find no case law addressing what the statute of limitations for a

Tennessee Constitution claim might be, but, if such a claim is viable, the one-year

limitation for Section 1983 claims, which will often mirror the state constitutional claim,

certainly seems appropriate.” The district judge referenced “the one-year statute of

limitations that appears to apply” when discussing an issue regarding certification of a

class action. Id. at *4. In the case before us, the trial judge cited Mata-Cuellar

approvingly when concluding that the one year statute of limitations applicable to section

1983 actions, found at Tennessee Code Annotated section 28-3-104(a), should also apply

to claims alleging violations of the Tennessee Constitution.

We respectfully disagree with the trial court’s conclusion. Tennessee Code

Annotated section 28-3-104(a)(1)(B) provides a one year statute of limitations for “[c]ivil

actions . . . brought under the federal civil rights statutes.” (Emphasis added.) We

cannot agree with the trial court’s conclusion that the statute of limitations applicable to

actions “brought under the federal civil rights statutes,” Tenn. Code Ann. § 28-3-

104(a)(1)(B), should also apply to claims alleging violations of the Tennessee

Constitution. “While 42 U.S.C. § 1983 expressly provides a remedy for the violation of

federally protected rights, numerous courts have held that a claimed violation of a state

constitution is not cognizable under § 1983.” Johnston v. Swing, No. M2012-01760-

COA-R3-CV, 2013 WL 3941026, at *4 (Tenn. Ct. App. July 26, 2013) (citing Baker v.

McCollan, 443 U.S. 137, 140 (1979); Radvansky v. City of Olmsted Falls, 395 F.3d 291,

314 (6th Cir. 2005)). Accordingly, this is not a situation in which Nunn could have

asserted his state constitutional claims in a section 1983 action. Nunn’s request for

declaratory relief under the UAPA regarding the Tennessee Constitution did not seek the

same relief that was otherwise available in a claim under section 1983. And even if it

had, for the reasons discussed in the previous section, the section 1983 remedy would be

supplementary to any state law remedies.

We also recognize that Tennessee courts have the authority to interpret the

Tennessee Constitution differently than the federal constitution. State v. Tuttle, 515

S.W.3d 282, 307 (Tenn. 2017). Generally, the Tennessee Supreme Court “‘will not

interpret a state constitutional provision differently than a similar federal constitutional

provision unless there are sufficient textual or historical differences, or other grounds for

doing so.’” State v. Pruitt, 510 S.W.3d 398, 415 (Tenn. 2016) (quoting Phillips v.

Montgomery Cnty., 442 S.W.3d 233, 243 (Tenn. 2014)). Still, our state constitutional

protections “remain on the books” and “provide an alternative theory for relief.” See

Sutton, Jeffrey S., What Does -- and Does Not -- Ail State Constitutional Law, 59 Kan. L.

Rev. 687, 712-13 (2011) (recognizing “a chronically underappreciated subject: the role of

the constitutions of the fifty states in American constitutionalism”). “[S]tate

constitutional law is no less a form of American constitutional law than federal

constitutional law.” Id. at 687. Recognizing the independent source of such claims, we

27

conclude that Nunn’s claims for declaratory relief alleging violations of the Tennessee

Constitution are not subject to the statute of limitations set forth in Tennessee Code

Annotated section 28-3-104(a)(1)(B) for civil actions “brought under the federal civil

rights statutes.”

When no specific statute of limitations can be identified as applicable, the general

ten-year statute of limitations applies. See Witty, 2011 WL 2570754, at *9. Finding no

statute of limitations applicable to Nunn’s UAPA declaratory claims alleging violations

of the Tennessee Constitution, we conclude that such claims are subject to the general

ten-year statute of limitations. See Hughley, 208 S.W.3d at 395 (applying the ten-year

statute of limitations to a prisoner’s UAPA declaratory judgment action where he was not

seeking the same relief otherwise available in another statutory proceeding).

Because the general ten year statute of limitations applies to Nunn’s UAPA claims

for declaratory relief alleging violations of the United States and Tennessee

Constitutions, the trial court erred in finding those claims time-barred. Due to its ruling

regarding the statute of limitations, the trial court did not consider the substantive merit

of Nunn’s constitutional claims, with three exceptions. The trial court found that Nunn’s

claims regarding vagueness and separation of powers were facial challenges to the

relevant statutes, and the trial court analyzed the merits of those two claims. In addition,

even though the trial court deemed it time-barred, the court engaged in an “alternative

analysis” of Nunn’s ex post facto claim. So, the trial court considered the merits of these

three claims but did not reach the other issues.

On appeal, we decline Nunn’s invitation to review the substantive merit of any

constitutional claims that we find were not barred by the statute of limitations, even in the

absence of a ruling by the trial court on those issues. Tennessee appellate courts

generally do not address issues that were not adjudicated by the trial court. See

Hagewood v. Am. Cas. Co. of Reading, Pa., No. M2005-02003-WC-R3-CV, 2006 WL

3455200, at *4 (Tenn. Workers Comp. Panel Nov. 29, 2006); Bowers v. Estate of

Mounger, No. E2016-01724-COA-R3-CV, 2017 WL 2820071, at *11 (Tenn. Ct. App.

June 29, 2017); Voigt v. Plate, No. E2016-00473-COA-R3-CV, 2017 WL 776093, at *9

(Tenn. Ct. App. Feb. 28, 2017); Mid-S. Maint. Inc. v. Paychex Inc., No. W2014-02329-

COA-R3-CV, 2015 WL 4880855, at *14 (Tenn. Ct. App. Aug. 14, 2015); Fisher v.

Ankton, No. W2014-00882-COA-R3-CV, 2015 WL 2107752, at *8 (Tenn. Ct. App. May

5, 2015); Rock-Tenn Converting Co. v. City of Memphis, No. W2014-00626-COA-R3-

CV, 2014 WL 4415943, at *9 (Tenn. Ct. App. Sept. 9, 2014); Coleman v. Humane Soc’y

of Memphis, No. W2012-02687-COA-R9-CV, 2014 WL 587010, at *17 n.11 (Tenn. Ct.

App. Feb. 14, 2014); Blackwell v. Comanche Constr., Inc., No. W2012-01309-COA-R9-

CV, 2013 WL 1557599, at *4 (Tenn. Ct. App. Apr. 15, 2013); Shaffer v. Memphis

Airport Auth., Serv. Mgmt. Sys., Inc., No. W2012-00237-COA-R9CV, 2013 WL 209309,

28

at *4 (Tenn. Ct. App. Jan. 18, 2013). As a court of appeals, “we are limited in authority

to the adjudication of issues that are presented and decided in the trial courts.” In re

Adoption of E.N.R., 42 S.W.3d 26, 31-32 (Tenn. 2001).

We remand for the trial court to consider, in the first instance, Nunn’s claims for

declaratory relief under the UAPA for the alleged constitutional violations regarding due

process, cruel and unusual punishment, equal protection, the privileges and immunities

clause, self-incrimination, unconstitutional taking, and unlawful bills of attainder. We

will review the trial court’s substantive rulings resolving Nunn’s claims regarding

separation of powers, ex post facto issues, and unconstitutional vagueness. Finally, we

will review Nunn’s argument regarding the non-constitutional issue substantively

addressed by the trial court, regarding compliance with the UAPA.

B. Separation of Powers

In his amended complaint, Nunn alleged that the application of the statutes

regarding community supervision for life violates the separation of powers principles set

forth in Article II, sections I, II, and III of the Tennessee Constitution. He asserted that

the statutes “impermissibly vest a purely legislative power” in the Department of

Correction, which is an agency of the executive branch of government. Although he

recognized that the General Assembly may grant power to an administrative agency to

promulgate rules and regulations, Nunn claimed that in this case, the General Assembly

impermissibly delegated to an agency its discretion as to “what the law shall be.” Again,

Tennessee Code Annotated section 39-13-524(d)(1) provides:

(d)(1) A person on community supervision shall be under the jurisdiction,

supervision and control of the department of correction in the same manner

as a person under parole supervision. The department is authorized on an

individual basis to establish such conditions of community supervision as

are necessary to protect the public from the person’s committing a new sex

offense, as well as promoting the rehabilitation of the person.

(Emphasis added.) Nunn’s amended complaint alleged that “[t]he ‘individual basis’

authorization granted in the above statutory provision vests the [Department of

Correction] with the power to create specific supervision criteria and conditions for

persons supervised pursuant to the statute.” Nunn claimed that the conditions of

supervision are arbitrarily created, implemented, and modified at the complete discretion

of the Department. Because each violation of a condition of community supervision

constitutes a separate criminal offense pursuant to Tennessee Code Annotated section 39-

13-526, Nunn argued that the Department’s conditions of supervision “function entirely

and specifically as criminal statutes for which a person can be charged and convicted for

29

specific acts which were entirely outside the contemplation of the General Assembly.”

He asserted that this power effectively conveys to a parole officer the authority to create a

penal statute. Thus, Nunn claimed that a “legislative function” was impermissibly vested

in the TDOC without sufficient standards or guidelines to determine legislative intent.

When evaluating the constitutionality of a statute, “we begin with the presumption

that an act of the General Assembly is constitutional” and “resolve every doubt in favor

of the statute’s constitutionality.” Gallaher v. Elam, 104 S.W.3d 455, 459-60 (Tenn.

2003) (quotation omitted). “Due to the strong presumption that acts of the General

Assembly are constitutional, the party attacking the constitutionality of a statute ‘must

bear a heavy burden in establishing some constitutional infirmity of the Act in question.’”

Id. (quoting West v. Tenn. Hous. Dev. Agency, 512 S.W.2d 275, 279 (Tenn. 1974)).

Article II section 1 of the Tennessee Constitution provides, “The powers of the

Government shall be divided into three distinct departments: the Legislative, Executive,

and Judicial.” Section 2 provides: “No person or persons belonging to one of these

departments shall exercise any of the powers properly belonging to either of the others,

except in the cases herein directed or permitted.” Tenn. Const. art. II, § 2. Section 3

provides, in relevant part, that “[t]he Legislative authority of this State shall be vested in

a General Assembly[.]” Tenn. Const. art. II, § 3. Still, “the doctrine of separation of

powers is not absolute,” as “the functions of the three branches of government often

overlap.” Gallaher, 104 S.W.3d at 463 (citing State v. King, 973 S.W.2d 586, 588 (Tenn.

1998)). For instance, “the General Assembly may delegate to an administrative agency

the authority to implement the expressed policy of particular statutes.” Id. at 464 (citing

State v. Edwards, 572 S.W.2d 917, 919 (Tenn. 1978)). A grant of such authority to an

administrative agency may include the power to promulgate rules and regulations in the

agency’s area of operation. Id. (citing Bean v. McWherter, 953 S.W.2d 197, 199 (Tenn.

1997)). In that case, “the enactment of reasonable rules and regulations is administrative

in character, [and] it does not amount to the exercise of a legislative function, despite the

agency’s exercise of discretion.” Id.

The separation of powers argument presented by Nunn has already been

considered by the Tennessee Court of Criminal Appeals. In State v. Grainger, No.

M2012-02545-CCA-R3-CD, 2014 WL 2803526 at *3 (Tenn. Crim. App. June 18, 2014),

perm. app denied (Tenn. Nov. 20, 2014), a criminal defendant was convicted of three

counts of knowingly violating a condition of community supervision for life, including

one count for possessing alcohol, another count for failure to successfully complete sex

offender treatment, and a third count for viewing pornography. The defendant argued on

appeal that Tennessee Code Annotated section 39-13-524(d)(1) violates Article II,

section 3 of the Tennessee Constitution, providing that the legislative authority of this

state shall be vested in the General Assembly. Because of the similarity of the issues

30

presented, we quote from the court’s thorough discussion of the separation of powers

issue at length:

Defendant asserts that the General Assembly unconstitutionally

delegated its lawmaking authority to the Department of Correction (which

by legislation took the place of the Board of Probation and Parole after

Defendant was placed on CSL [community supervision for life]) by

enacting Tennessee Code Annotated section 39-13-524(d)(1). Specifically,

Defendant argues that Tennessee Code Annotated section 39-13-524(d)(1)

unlawfully authorized an executive branch entity to define a criminal act

and the scope of its applicability. In other words, according to Defendant,

by granting an executive branch entity the power to define and create

certain conditions of CSL, and by stating that a knowing violation of any

such condition is a crime as set forth in Tennessee Code Annotated section

39-13-526, the General Assembly authorized the executive branch to act in

a legislative capacity to define and proscribe criminal acts.

In support of his argument, Defendant directs our attention to the

wording of Tennessee Code Annotated section 39-13-526(b)(1), which

states, “(b)(1) If the conduct that is a violation of a condition of community

supervision does not constitute a criminal offense, the violation is a Class A

misdemeanor.” Defendant implicitly asserts that a plain reading of this

section of the statute clearly shows that under the challenged statute (Tenn.

Code Ann. § 39-13-524(d)(1)), the Board of Probation and Parole (now the

Department of Correction) is authorized to criminalize an act or omission

that the General Assembly has not criminalized, simply by including the act

or omission as a condition of CSL. Defendant acknowledges that there are

some restrictions on the executive branch when determining the

individualized conditions. That is, the specialized conditions must be

“necessary to protect the public from the [defendant’s] committing a new

sex offense, as well as promoting the rehabilitation of the person.” Tenn.

Code Ann. § 39-13-524(d)(1). However, Defendant argues that this “policy

statement” is “too broad” to provide any restriction on what can be a

condition of CSL, which becomes the basis of a criminal charge upon being

included as a condition of CSL, even if the act is otherwise not a crime.

....

Defendant relies upon Tasco v. Long, 212 Tenn. 96, 368 S.W.2d 65

(Tenn. 1963) for the well settled proposition that the General Assembly

cannot delegate its law making authority. Defendant concedes, however,

that even in criminal cases, the General Assembly may delegate to agencies

or departments of the executive branch rule making authority pertaining to

“implementation of criminal laws and criminal sanctions created by the

31

General Assembly.” Defendant argues that the language in Tennessee

Code Annotated section 39-13-524(d)(1) fails to establish meaningful

standards for the executive branch to follow and in fact provides complete

discretion in legislative activity to the executive branch. Our supreme court

has set forth the law regarding this issue as follows:

Article II, section 3 of the Tennessee Constitution

vests the state’s legislative power in the General Assembly.

In general, “legislative power” is “the authority to make,

order, and repeal law.” Id. The General Assembly may not

delegate power that is “purely legislative.” State v. Edwards,

572 S.W.2d 917, 919 (Tenn. 1978); see also Chattanooga–

Hamilton County Hosp. Auth. v. Chattanooga, 580 S.W.2d

322, 328 (Tenn. 1979). Therefore, the General Assembly

may not delegate to an executive branch agency the exercise

of the legislature’s discretion as to what the law shall be. See

Dep’t of Pub. Welfare v. Nat’l Help “U ” Ass’n, 197 Tenn. 8,

270 S.W.2d 337, 339 (1954). However, the General

Assembly may delegate to an administrative agency the

authority to implement the expressed policy of particular

statutes. See Edwards, 572 S.W.2d at 919. A grant of such

authority may include the power to promulgate rules and

regulations that have the effect of law in the agency’s area of

operation. See Bean v. McWherter, 953 S.W.2d 197, 199

(Tenn. 1997). Because the enactment of reasonable rules and

regulations is administrative in character, it does not amount

to the exercise of a legislative function, despite the agency’s

exercise of discretion. See Tasco Developing & Bldg. Corp.

v. Long, 212 Tenn. 96, 368 S.W.2d 65, 68-69 (1963); see also

INS v. Chadha, 462 U.S. 919, 953 n. 16, 103 S. Ct. 2764, 77

L.Ed.2d 317 (1983) (noting that rulemaking by administrative

agencies resembles lawmaking).

The test for determining whether a legislature’s

delegation of power to an administrative agency is

unconstitutional is “whether the statute contains sufficient

standards or guidelines to enable both the agency and the

courts to determine if the agency is carrying out the

legislature’s intent.” Bean, 953 S.W.2d at 199.

Gallaher v. Elam, 104 S.W.3d 455, 464 (Tenn. 2003).

32

In Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1997), our supreme

court also held that,

Detailed or specific legislation may be neither required nor

feasible when the subject matter requires an agency’s

expertise and flexibility to deal with complex and changing

conditions.

The requirement of expressed standards may also be

relaxed when the discretion to be exercised relates to or

regulates for the protection of the public’s health, safety, and

welfare.

Bean, 953 S.W.2d at 199.

By legislative enactment, any individualized conditions of CSL must

be necessary to protect the public from the defendant committing an

additional sex offense and promote the rehabilitation of the defendant.

Obviously, these relate to the public’s safety and welfare. The standards in

the statute enable both the executive branch and the judicial branch to

determine if the executive branch is carrying out the intent of the General

Assembly. We hold that under Bean and Gallaher, Tennessee Code

Annotated section 39-13-524(d)(1) does not violate Article II, section 3 of

the Tennessee Constitution. Defendant is not entitled to relief on this issue.

Grainger, 2014 WL 2803526, at *4-5; see also State v. Grammer, No. E2016-00497-

CCA-R3-CD, 2017 WL 1177069, at *1 (Tenn. Crim. App. Mar. 29, 2017), perm. app.

denied (Tenn. June 9, 2017) (recognizing the holding in Grainger); State v. Kennedy, No.

E2011-00769-CCA-R3-CO, 2012 WL 2109286, at *5 (Tenn. Crim. App. June 12, 2012),

perm. app. denied (Tenn. Feb. 15, 2013) (rejecting a defendant’s argument that the

statutes providing for community supervision for life violate the separation of powers

doctrine by impermissibly vesting a purely legislative power in an executive branch

agency).

On appeal, Nunn acknowledges the holding in Grainger but argues that it is not

entitled to much weight because “there does not appear to have been any significant

evidentiary record concerning the promulgation and scope of CSL given that the case

arose in the context of a conviction for violating CSL.” He also argues that the other

cases addressing this issue, such as Kennedy, “do not appear to have had any evidentiary

record regarding the Sex Offender Directives.”

33

We cannot determine the extent of the evidentiary record before the Court of

Criminal Appeals based on its opinions. Still, we do not agree with Nunn’s suggestion

that the size of the evidentiary record in this case necessitates a different result. The

Grainger court carefully considered the same arguments and the same statutory language

that Nunn challenges here and concluded that the statutes provide sufficient guidelines to

enable the executive branch and the judicial branch to determine if the agency is carrying

out the legislative intent. Id. at *5. The Grainger court noted that any individualized

conditions of community supervision for life must be, according to the statute, necessary

to protect the public from the defendant committing an additional sex offense and

promote the rehabilitation of the defendant. Id. Because these issues relate to the

public’s safety and welfare, the court explained, the requirement of expressed standards

may be relaxed. Id. We agree with the thorough and well-reasoned opinion in Grainger

and adopt its reasoning. We likewise conclude that the statutes regarding community

supervision for life do not violate Article II sections 1 through 3 of the Tennessee

Constitution.

C. Vagueness

Next, we address the allegation of unconstitutional vagueness. Nunn asserts that

Tennessee Code Annotated sections 39-13-524 and 39-13-526 are unconstitutionally

vague “because persons of ordinary intelligence may not understand what conduct is

prohibited.” Nunn claims the statutes are so vague that persons must necessarily guess at

their meaning and differ as to their application.

“‘[T]he root of the vagueness doctrine is a rough idea of fairness.’” Moncier v.

Bd. of Prof’l Responsibility, 406 S.W.3d 139, 152 (Tenn. 2013) (quoting Colten v.

Kentucky, 407 U.S. 104, 110 (1972)). The Tennessee Supreme Court recently explained

the vagueness doctrine in State v. Crank, 468 S.W.3d 15, 22-23 (Tenn. 2015):

“‘It is a basic principle of due process that an enactment is void for

vagueness if its prohibitions are not clearly defined.’” State v. Pickett, 211

S.W.3d 696, 704 (Tenn. 2007) (quoting Grayned v. City of Rockford, 408

U.S. 104, 108, 92 S. Ct. 2294, 33 L.Ed.2d 222 (1972)). By virtue of the

Due Process Clause of the Fourteenth Amendment to the Federal

Constitution and article I, section 8 of the Tennessee Constitution,20 a

criminal statute cannot be enforced when it prohibits conduct “‘in terms so

vague that [persons] of common intelligence must necessarily guess at its

meaning and differ as to its application.’” Id. (quoting Leech v. Am.

20

The Fourteenth Amendment to the United States Constitution and Article I, section 8 of the Tennessee

Constitution are synonymous and provide the same protection with regard to the vagueness doctrine. City

of Knoxville v. Entm't Res., LLC, 166 S.W.3d 650, 655 (Tenn. 2005).

34

Booksellers Ass’n, 582 S.W.2d 738, 746 (Tenn. 1979)). The primary

purpose of the vagueness doctrine is to ensure that our statutes provide fair

warning as to the nature of forbidden conduct so that individuals are not

“held criminally responsible for conduct which [they] could not reasonably

understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617,

74 S. Ct. 808, 98 L.Ed. 989 (1954). In evaluating whether a statute

provides fair warning, the determinative inquiry “is whether [the] statute’s

‘prohibitions are not clearly defined and are susceptible to different

interpretations as to what conduct is actually proscribed.’” Pickett, 211

S.W.3d at 704 (quoting State v. Forbes, 918 S.W.2d 431, 447-48 (Tenn.

Crim. App. 1995)); see also State v. Whitehead, 43 S.W.3d 921, 928 (Tenn.

Crim. App. 2000).

A second, related purpose of the vagueness doctrine is to ensure that

our criminal laws provide “minimal guidelines to direct law enforcement.”

State v. Smith, 48 S.W.3d 159, 165 (Tenn. Crim. App. 2000) (citing Forbes,

918 S.W.2d at 448). The vagueness doctrine does not permit a statute that

“authorizes and encourages arbitrary and discriminatory enforcement,”

State v. Harton, 108 S.W.3d 253, 259 (Tenn. Crim. App. 2002) (citing City

of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67

(1999)), which typically occurs when a statute “delegates basic policy

matters to policemen, judges, and juries for resolution on an ad hoc and

subjective basis,” Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d

520, 531 (Tenn. 1993) (citing Grayned, 408 U.S. at 108-109, 92 S. Ct.

2294).

Despite the importance of these constitutional protections, this Court

has recognized the “inherent vagueness” of statutory language, Pickett, 211

S.W.3d at 704, and has held that criminal statutes do not have to meet the

unattainable standard of “absolute precision,” State v. McDonald, 534

S.W.2d 650, 651 (Tenn. 1976); see also State v. Lyons, 802 S.W.2d 590,

592 (Tenn. 1990) (“The vagueness doctrine does not invalidate every

statute which a reviewing court believes could have been drafted with

greater precision, especially in light of the inherent vagueness of many

English words.”). In evaluating a statute for vagueness, courts may

consider the plain meaning of the statutory terms, the legislative history,

and prior judicial interpretations of the statutory language. See Lyons, 802

S.W.2d at 592 (reviewing prior judicial interpretations of similar statutory

language); Smith, 48 S.W.3d at 168 (“The clarity in meaning required by

due process may . . . be derived from legislative history.”).

(Emphasis added.)

35

We begin with an examination of the statutory language. The statutes challenged

by Nunn are Tennessee Code Annotated sections 39-13-524 and -526. Section 39-13-

524(d)(1) provides:

A person on community supervision shall be under the jurisdiction,

supervision and control of the department of correction in the same manner

as a person under parole supervision. The department is authorized on an

individual basis to establish such conditions of community supervision as

are necessary to protect the public from the person’s committing a new sex

offense, as well as promoting the rehabilitation of the person.

Section -526 then provides, in pertinent part:

It is an offense for a person to knowingly violate a condition of community

supervision imposed upon the person pursuant to § 39-13-524.

Tenn. Code Ann. § 39-13-526(a).21 The Tennessee Supreme Court has acknowledged

that when a sex offender is subject to community supervision for life, he or she must

“regularly report to a parole officer who is granted wide discretion in imposing

supervisory requirements” for each offender. Ward, 315 S.W.3d at 474.

We also look to the legislative history. Before these particular statutes were

adopted in 1996, the Tennessee General Assembly adopted the Tennessee Standardized

Treatment Program for Sex Offenders Act in 1995. Tenn. Code Ann. § 39-13-701, et

seq. The Act declared that “the comprehensive evaluation, identification, treatment, and

continued monitoring of sex offenders who are subject to the supervision of the criminal

justice system are necessary in order to work toward the elimination of recidivism by the

offenders.” Tenn. Code Ann. § 39-13-702(a). Accordingly, the Act created “a program

that standardizes the evaluation, identification, treatment, and continued monitoring of

sex offenders at each stage of the criminal justice system, so that the offenders will curtail

recidivistic behavior, and so that the protection of victims and potential victims will be

enhanced.” Tenn. Code Ann. § 39-13-702(b). The Act also created, in the Department of

21

Tennessee Code Annotated section 39-13-526(b) further provides:

(b)(1) If the conduct that is a violation of a condition of community supervision does not

constitute a criminal offense, the violation is a Class A misdemeanor.

(2) If the conduct that is a violation of a condition of community supervision also

constitutes a criminal offense that is classified as a misdemeanor, the violation is a Class

A misdemeanor.

(3) If the conduct that is a violation of a condition of community supervision also

constitutes a criminal offense that is classified as a felony, the violation is a Class E

felony.

36

Correction, a twelve-member (and later, thirteen-member) “sex offender treatment

board.” Tenn. Code Ann. § 39-13-704(a). The sex offender treatment board had several

duties, including the following:

The board shall develop guidelines and standards for a system of programs

for the treatment of sex offenders that can be utilized by offenders who are

placed on probation, incarcerated with the department of correction, placed

on parole, or placed in community corrections. The programs developed

shall be as flexible as possible, so that such programs may be utilized by

each offender to prevent the offender from harming victims and potential

victims. The programs shall be structured in a manner that the programs

provide a continuing monitoring process, as well as a continuum of

treatment programs for each offender as that offender proceeds through the

criminal justice system, and may include, but shall not be limited to,

polygraph examinations by therapists and probation and parole officers,

group counseling, individual counseling, outpatient treatment, inpatient

treatment, or treatment in a therapeutic community. The programs shall be

developed in a manner that, to the extent possible, the programs may be

accessed by all offenders in the criminal justice system. . . .

Tenn. Code Ann. § 39-13-704(d)(2).

When the statutes regarding community supervision for life, Tennessee Code

Annotated sections 39-13-524 to -526, were enacted in 1996, the general assembly also

amended the statute governing the Board of Probation and Parole to expressly provide

that the Board had the power “[t]o establish conditions of supervision for and supervise

sex offenders sentenced to community supervision for life pursuant to Tennessee Code

Annotated, Section 39-13-524.” See 1996 Pub. Acts, c. 972, § 2 (amending Tennessee

Code Annotated section 40-28-104). The “Bill Summary” for the corresponding senate

bill explained that “The conditions of such supervision shall be established on an

individual basis to ensure that such person does not commit new sex offenses.”

http://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=HB2575&GA=99.

Specialized conditions of community supervision for life for sex offenders known

as the “Sex Offender Directives” were approved by the Sex Offender Treatment Board on

April 26, 1999, and were adopted and implemented by the Board of Probation and Parole

on or about the same date. When the Board of Probation and Parole established the Sex

Offender Directives, it also “granted probation and parole officers some discretion

imposing the conditions already established by the board as deemed appropriate based on

37

the particular offender’s risks and needs.”22

After the Department of Correction assumed responsibility for the community

supervision for life program on July 1, 2012, the commissioner of correction sent a

memorandum on July 2, 2012, stating that the Department thereby adopted all existing

policies of the field services division of the Board of Probation and Parole going forward,

with the understanding that the policies would be revised and rewritten as the

implementation process moved forward. (The record contains no evidence to

demonstrate that the Department of Correction has otherwise taken formal action to adopt

the Sex Offender Directives, and the Department claims that it has not done so.)23

However, pursuant to the current administrative procedures promulgated by the

Department of Correction regarding community supervision for life, sex offenders

sentenced to community supervision for life must comply with “the TDOC specialized

conditions for sex offenders [and] the CSL rules.”

Finally, we consider prior judicial interpretations of the statutory language. In

Kennedy, in addition to considering the separation of powers issue discussed above, the

Court of Criminal Appeals considered a defendant’s argument that the statutes providing

for community supervision for life were “void for vagueness” because the statutes failed

to detail or specify the conditions of community supervision. Kennedy, 2012 WL

2109286, at *4. The court rejected this argument as follows:

“A statute is void for vagueness if it is so vague, indefinite, and uncertain

that persons must speculate as to its meaning, and if it fails to give a person

of ordinary intelligence fair notice that his or her conduct is forbidden by

the statute.” State v. Whaley, 982 S.W.2d 346, 348 (Tenn. Crim. App.

1997). “The vagueness doctrine does not invalidate every statute which a

reviewing court believes could have been drafted with greater precision.”

22

The Board of Probation and Parole adopted a policy providing that sex offenders “shall be

supervised pursuant to the conditions of parole, the sex offender unit manual, the Standards of

Supervision [that an Officer schedules on behalf of each offender] and the directives as adopted

by both the Board and SOTB [sex offender treatment board].” The policy defined “directives” as

“rules in addition to the general conditions [governing all parolees] that a sex offender on

probation or parole supervision is expected to follow, when the Court or Board, respectively, has

imposed that special condition.”

23

The 2012 legislation also added Tennessee Code Annotated section 40-28-602, which required

the commissioner of correction to appoint a director of probation of parole who shall, under the

supervision of the commissioner, “[e]stablish conditions of supervision for and supervise sex

offenders sentenced to community supervision for life pursuant to § 39-13-524.” See 2012 Pub.

Acts, c. 727, § 43. The parties do not mention this statute on appeal or whether such a director

was appointed.

38

State v. Lyons, 802 S.W.2d 590, 592 (Tenn. 1990). Here, the relevant

statute clearly establishes the prohibited conduct, and that the Defendant

would be placed under the Board of Probation and Parole’s supervision for

life.

Id. at *7. A federal district court has also considered and rejected the argument that the

community supervision for life statutes are unconstitutionally vague. In Reagan v.

Bredesen, No. 3:07-CV-199, 2008 WL 901496, at *2 (E.D. Tenn. Mar. 31, 2008), the

district court explained:

Plaintiffs claim that the conditions of community supervision, to

which they are subject and for which violation they can be prosecuted, are

not outlined in the statutes themselves and thus are facially vague.

Conditions of community supervision, however, have been promulgated by

the Board of Probation and Parole for the State of Tennessee pursuant to

authority granted by the legislature. . . .

The conditions with which a sex offender must comply are clearly

set forth and are not vague. Accordingly, plaintiffs have failed to state a

due process violation. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct.

1855, 75 L.Ed.2d 903 (1983) (“the void-for-vagueness doctrine requires

that a penal statute define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement”).

Id.; see also Daniel v. Bredesen, No. 3:07-CV-175, 2008 WL 901506, at *3 (E.D. Tenn.

Mar. 31, 2008).

In the case before us, the trial court concluded that Tennessee Code Annotated

sections 39-13-524 and -526 are not void for vagueness because they “are clear regarding

the criminal conduct that is prohibited, and the Sex Offender Directives are equally

unambiguous and are directly related to protecting the public and promoting Petitioner’s

rehabilitation.”

Nunn’s argument on appeal regarding vagueness is somewhat difficult to follow.

Constitutional challenges asserting that a statute is void for vagueness may be either

facial challenges or as applied challenges. See Crank, 468 S.W.3d at 24. Here, Nunn

insists that he “is not making a facial challenge to CSL and, indeed, is not assailing his

CSL sentence. . . . this is an ‘as applied,’ declaratory judgment suit.” “It is typically

preferable for courts to address constitutional challenges on an as-applied basis, thereby

limiting the analysis to the facts of the case at hand.” Crank, 468 S.W.3d at 24.

Accordingly, we will limit our review to an as-applied challenge and consider “how [the

39

statute] operates in practice against the particular litigant and under the facts of the instant

case, not hypothetical facts in other situations.” Id. at 24 n.5. Again, however, we begin

with the presumption that the statute is constitutional. Gallaher, 104 S.W.3d at 459. A

party challenging the constitutionality of a statute carries a heavy burden to overcome

that presumption. Id. at 459-60.

The issue Nunn presents in his brief focuses on the statutes themselves --

“Whether Tenn. Code Ann. 39-13-524 and 39-13-526 are unconstitutionally vague[.]” In

general, he notes that vague statutes do not give fair notice that certain activities may be

unlawful and do not set reasonably clear guidelines for law enforcement officials and

courts, inviting arbitrary and discriminatory enforcement. State v. Forbes, 918 S.W.2d

431, 448 (Tenn. Crim. App. 1995). In an attempt to demonstrate the vagueness of the

statutes, Nunn suggests that several of the individualized conditions set forth in the Sex

Offender Directives are vague and subject to differing interpretations by different

supervising officers. For example, Nunn points to directives providing that sex offenders

such as Nunn may not “befriend” any person with minor children, may not possess

pornography, and may not work where services are provided to children. He notes that

the directives also provide that a sex offender’s supervising officer can create conditions

of individual supervision deemed appropriate by the officer. As we perceive his

argument, Nunn essentially complains that the governing statutes impermissibly leave the

details regarding conditions of supervision open to a supervising officer’s interpretation

and discretion.

A special condition for an offender’s supervision may be added at the discretion of

the officer. Over the years during which Nunn has been subject to community

supervision, his various supervising officers have differed as to whether he can attend

weddings or professional football games. One officer told Nunn that his wife could have

alcohol in the house while another said it was not acceptable. Nunn’s supervising

officers have also differed as to what it means to “befriend” someone. Nunn claims that

these differences of opinion are especially noteworthy because he can be charged with a

criminal offense if he violates a condition of his supervision.

In our view, the fact that Nunn’s supervising officers have differed as to the

individualized conditions they have imposed on Nunn over the years does not render the

governing statutes unconstitutionally vague. The “void for vagueness” doctrine is based

on fairness and is intended “‘only to give ‘fair warning’ of prohibited conduct.’” State v.

Thomas, No. E2013-01738-CCA-R3-CD, 2015 WL 513583, at *28 (Tenn. Crim. App.

Feb. 5, 2015), perm. app. denied (Tenn. Aug. 12, 2015) cert. denied 136 S. Ct. 1458, 194

L. Ed. 2d 559 (2016) (quoting Phillips v. State Bd. of Regents of State Univ. and Cmty.,

863 S.W.2d 45, 48-49 (Tenn. 1993)). “A law is not void for vagueness if an ‘ordinary

person exercising ordinary common sense’ can sufficiently understand the law and

40

comply with [it.]”24 Moncier, 406 S.W.3d at 152 (quoting Arnett v. Kennedy, 416 U.S.

134, 159 (1974)). Statutes that are “applicable in a wide variety of situations, must

necessarily use words of general meaning, because greater precision is both impractical

and difficult,” and this does not render the statute unconstitutionally vague. State v.

Lyons, 802 S.W.2d 590, 592 (Tenn. 1990). “Absolute precision in drafting prohibitory

legislation is not required since prosecution could then easily be evaded by schemes and

devices.” State v. Wilkins, 655 S.W.2d 914, 916 (Tenn. 1983). And, as noted in the

previous section regarding separation of powers,

Detailed or specific legislation may be neither required nor feasible when

the subject matter requires an agency’s expertise and flexibility to deal with

complex and changing conditions.

The requirement of expressed standards may also be relaxed when

the discretion to be exercised relates to or regulates for the protection of the

public’s health, safety, and welfare.

Bean, 953 S.W.2d at 199. The statutes regarding community supervision for life

obviously relate to public safety and welfare. Grainger, 2014 WL 2803526, at *5.

According to section 39-13-524, “The department is authorized on an individual basis to

establish such conditions of community supervision as are necessary to protect the public

from the person’s committing a new sex offense, as well as promoting the rehabilitation

of the person.” Tenn. Code Ann. § 39-13-524(d)(1) (emphasis added). Thus, the statute

contemplates that individualized and differing conditions may be applied to each sex

offender to protect the public and promote the offender’s rehabilitation. As a result,

Nunn is subject to the Sex Offender Directives and any specialized conditions imposed

by his supervising officer. Over the years, he has been made aware of the individualized

conditions imposed on him by each supervising officer and has not been charged with

violating any condition of his community supervision due to any inadvertent violation.25

24

For example, in Wells v. Tennessee Board of Regents, 9 S.W.3d 779, 788 (Tenn. 1999), the

supreme court explained that a statute providing for dismissal of a tenured professor for

“capricious disregard of accepted standards of professional conduct” was not void for vagueness,

even though the employee “must use common sense in discerning what is appropriate behavior.”

25

See, e.g., Corzine v. Laxalt, No. 3:17-CV-00052-MMD-WGC, 2017 WL 3159990, at *4 (D.

Nev. July 25, 2017) (rejecting a sex offender’s “void for vagueness” challenge to Nevada’s

lifetime supervision program on the basis that the statute created a punishment for violating any

conditions imposed by the parole board without spelling out those conditions, as this argument

“misstates how the statute actually functions” and the defendant “could not have been punished

for violating any conditions until after they had actually been imposed, thereby giving him

sufficient notice of the prohibited conduct”); State v. Bond, 365 N.J. Super. 430, 436, 839 A.2d

888, 891 (App. Div. 2003) (rejecting a void for vagueness challenge to a statute providing that

persons on supervision for life would be supervised “as if on parole and subject to conditions

41

Thus, considering the effect of the statutes as applied to Nunn and how they operate

under the facts of this case, he has received sufficient notice of his individualized

conditions and what the statutes require of him.

Furthermore, section 39-13-526 provides that “[i]t is an offense for a person to

knowingly violate a condition of community supervision imposed upon the person

pursuant to § 39-13-524.” Tenn. Code Ann. § 39-13-526(a) (emphasis added). As noted

above, “The primary purpose of the vagueness doctrine is to ensure that our statutes

provide fair warning as to the nature of forbidden conduct so that individuals are not

‘held criminally responsible for conduct which [they] could not reasonably understand to

be proscribed.’” Crank, 468 S.W.3d at 22-23 (quoting Harriss, 347 U.S. at 617). The

“void for vagueness” doctrine “prohibits holding an individual criminally liable for

conduct that a person of common intelligence would not have reasonably understood to

be proscribed.” Thomas, 2015 WL 513583, at *28. Consequently, a statute’s “scienter

requirements alleviate vagueness concerns.” Gonzales v. Carhart, 550 U.S. 124, 149,

(2007) (rejecting a void for vagueness challenge, explaining that a statute’s requirement

of deliberate and intentional action would prevent criminal liability for one acting by

mistake and therefore the statute did not serve as a trap for one acting in good faith).

“[T]he constitutionality of a vague statutory standard is closely related to whether that

standard incorporates a requirement of mens rea.” Colautti v. Franklin, 439 U.S. 379,

395 (1979).

[T]he requirement of a specific intent to do a prohibited act may avoid

those consequences to the accused which may otherwise render a vague or

indefinite statute invalid. The constitutional vice in such a statute is the

essential injustice to the accused of placing him on trial for an offense, the

nature of which the statute does not define and hence of which it gives no

warning. But where the punishment imposed is only for an act knowingly

done with the purpose of doing that which the statute prohibits, the accused

cannot be said to suffer from lack of warning or knowledge that the act

which he does is a violation of law. The requirement that the act must be

willful or purposeful may not render certain, for all purposes, a statutory

definition of the crime which is in some respects uncertain. But it does

relieve the statute of the objection that it punishes without warning an

offense of which the accused was unaware.

Screws v. U.S., 325 U.S. 91, 101-02 (1945) (citation omitted) (emphasis added).

A scienter requirement in a statute also “narrow[s] the scope of [its] prohibition

appropriate to protect the public and foster rehabilitation”).

42

and limit[s] prosecutorial discretion.” McFadden v. U.S., 135 S. Ct. 2298, 2307 (2015)

(quoting Gonzales, 550 U.S. at 149-150). Considering that Tennessee Code Annotated

section 39-13-526 provides that it is an offense for a person to “knowingly violate” a

condition of supervision, the statute provides the necessary “minimal guidelines to direct

law enforcement” and does not authorize arbitrary and discriminatory enforcement.

Crank, 468 S.W.3d. at 22-23; see Boyce Motor Lines, Inc. v. U.S., 342 U.S. 337, 342

(1952) (“The statute punishes only those who knowingly violate the Regulation. This

requirement of the presence of culpable intent as a necessary element of the offense does

much to destroy any force in the argument that application of the Regulation would be so

unfair that it must be held invalid [on the ground of vagueness].”).

Having considered the statutory text, legislative history, and prior judicial

interpretations of the statutory language, we conclude that Tennessee Code Annotated

sections 39-13-524 and -526 are sufficiently precise to put Nunn on notice of what

conduct is prohibited and provide sufficient standards for law enforcement. The statutes

are not void for vagueness.

D. Ex Post Facto

The next issue Nunn presents in his brief is framed as follows:

Given that Tenn. Code Ann. §§ 39-13-524 and 39-13-526 convey to the

TDOC the specific power to ‘alter the definition of criminal conduct’ by

ostensibly conferring the right to create individual, novel rules of

supervision governing Petitioner’s day to day conduct, all having the full

force and effect of a criminal statute, whether theses punitive Sex Offender

Directives derived from these statutes, but created and implemented after

the commission of the Petitioner’s crimes, constitute ex post facto laws as

applied to petitioner in violation of the Ex Post Facto Clauses of the state

and federal constitutions.

Nunn insists that he is not challenging “lifetime supervision itself” or his sentence to

community supervision for life. Instead, he is challenging the set of restrictions and

conditions that was “imposed on him as he was departing prison.” Nunn complains that

the heightened standards of supervision set forth in the Sex Offender Directives did not

exist at the time of his offenses in 1997 and 1998 but were adopted in 1999, months after

he pled guilty to the offenses. Nunn argues that the Board of Probation and Parole and/or

the TDOC has unlawfully “created these crimes long after [Nunn] committed his

offense.” Nunn seeks relief from these conditions of supervision because, he alleges,

their application violates the ex post facto protections of the United States and Tennessee

Constitutions.

43

The Tennessee Supreme Court has held that “the ex post facto clause of the

Tennessee Constitution has the same definition and scope as the federal ex post facto

clause.” State v. Pruitt, 510 S.W.3d 398, 402 (Tenn. 2016). The United States

Constitution provides that no state shall pass any ex post facto law. U.S. Const. art. I, §

10, cl. 1. The Tennessee Constitution provides that “laws made for the punishment of

acts committed previous to the existence of such laws, and by them only declared

criminal, are contrary to the principles of a free Government; wherefore no Ex post facto

law shall be made.” Tenn. Const. art. I, § 11. “The animating principle of the prohibition

against ex post facto laws is basic fairness[.]” Pruitt, 510 S.W.3d at 410. Four categories

of laws are included in the constitutional prohibition against ex post facto laws:

1st. Every law that makes an action, done before the passing of the law, and

which was innocent when done, criminal; and punishes such action. 2nd.

Every law that aggravates a crime, or makes it greater than it was, when

committed. 3rd. Every law that changes the punishment, and inflicts a

greater punishment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or

different, testimony, than the law required at the time of the commission of

the offence, in order to convict the offender.

Id. at 411 (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)). In

order to come within the prohibition of the ex post facto clause, a law must be

retrospective (applying to events occurring before its enactment) and it must

disadvantage the offender (by altering the definition of criminal conduct or increasing the

punishment for the crime). Id. at 416-17.

In this case, the trial court found that “there was no new law.” The trial court

explained that Tennessee Code Annotated section 39-13-524 and -526 were already in

effect when Nunn committed his offenses. The trial court acknowledged that “the terms

of Mr. Nunn’s CSL were not fully established” when he committed his offenses and that

“the terms and conditions of CSL changed administratively over the years.” Still, the

court concluded that “the fact that the administrative details changed” did not mean that

Nunn was unconstitutionally subjected to a retrospective law in violation of the ex post

facto clause.

On appeal, Nunn argues that the trial court approached the issue too narrowly. He

argues that the ex post facto clause can be implicated even without a substantive change

in the statutory language if administrative policies or regulations having the force and

effect of law are changed to his disadvantage. Because the Sex Offender Directives were

implemented after the commission of his crimes, he argues that the Sex Offender

44

Directives constitute ex post facto laws as applied to him. Nunn appears to argue that

applying the Sex Offender Directives to him implicates two categories of ex post facto

laws discussed above. First, he suggests that the Sex Offender Directives have changed

his punishment, inflicting a greater punishment than the law annexed to the crime when

committed. Second, Nunn claims that the TDOC has altered the definition of criminal

conduct with its individualized conditions of supervision and created new definitions of

behavior that is criminalized, whereas before his conviction these acts were not. Nunn

argues that the 1999 Sex Offender Directives essentially “define crimes” for him because

a violation of the conditions of his supervision can result in incarceration.

We recognize that administrative rules and regulations are not necessarily immune

from the ex post facto analysis. As this Court explained in Utley v. Tennessee

Department of Correction, 118 S.W.3d 705, 716 n.18 (Tenn. Ct. App. 2003):

The Ex Post Facto Clauses do not apply just to the Legislative Branch.

They also apply to rules, regulations, or policies enacted by the Executive

Branch exercising delegated legislative power, Smith v. Scott, 223 F.3d

1191, 1193-94 (10th Cir. 2000); Prater v. United States Parole Comm’n,

802 F.2d 948, 953-54 (7th Cir. 1986), as long as they have the force and

effect of law. Griggs v. Maryland, 263 F.3d 355, 359 (4th Cir.2001);

Miller v. Mitchell, 25 S.W.3d 658, 663 (Mo. Ct. App. 2000). Thus,

administrative rules and policies may be subject to the Ex Post Facto

Clauses’ prohibitions. Garner v. Jones, 529 U.S. [244, 255, 120 S.Ct.

1362, 1370, 146 L.Ed.2d 236 (2000)].

However, the Utley Court added that “[p]olicy changes that simply clarify how an

Executive Branch agency exercises pre-existing discretionary authority do not run afoul

of the Ex Post Facto Clauses.” Id. (citing D’Joy v. New York State Div. of Parole, 127 F.

Supp. 2d 433, 439 (S.D. N.Y. 2001); Jaami v. Conley, 958 S.W.2d at 125-26 (declining

to set aside discretionary prisoner classification policies)). The Utley Court also observed

that “neither the federal nor the state Ex Post Facto Clause should be interpreted to

require or even permit the courts to micromanage the endless array of legislative or

administrative adjustments to parole policies and procedures.” Id. at 713.

We conclude that the promulgation of the Sex Offender Directives was a policy

change that simply clarified how the supervising agency would exercise its pre-existing

discretionary authority. See Utley, 118 S.W.3d at 715 n.18. When Nunn committed his

four offenses in 1997 and 1998, Tennessee Code Annotated section 39-13-524(a)

provided that a person who committed aggravated sexual battery on or after July 1, 1996,

“shall receive a sentence of community supervision for life.” The statute continued,

45

A person on community supervision shall be under the jurisdiction,

supervision and control of the board of probation and parole in the same

manner as a person under parole supervision. The board is authorized on

an individual basis to establish such conditions of community supervision

as are necessary to protect the public from the person’s committing a new

sex offense, as well as promoting the rehabilitation of the person.

Tenn. Code Ann. § 39-13-524(d)(1). Nunn interprets this statute to mean that “[t]he

‘individual conditions’ of community supervision contemplated by this statute were to be

‘in the same manner as a person under parole supervision.’” (quoting Tenn. Code Ann. §

39-13-524(d)(1)). He claims that the conditions of supervision that existed for persons on

“normal” parole at the time of the commission of his offense “were fixed” in their

application to him “and could not be made more harsh or severe.” Simply put, Nunn

claims that the 1999 Sex Offender Directives cannot be applied to him because they did

not exist when he committed his crimes.

We respectfully disagree with Nunn’s reading of the statute. It clearly provided

that persons on community supervision would be “under the jurisdiction, supervision and

control” of the board (now department) in the same manner as a person under parole

supervision. But the very next sentence expressly stated that the board was authorized

“on an individual basis” to establish the “conditions” of community supervision that were

necessary to protect the public from each person’s commission of a new offense and

promote the rehabilitation of each person. Tenn. Code Ann. § 39-13-524(d)(1). This

statutory language was sufficient to put Nunn on notice that the supervising agency could

establish individualized or specialized conditions of supervision to protect the public

from him and to promote his rehabilitation. The Board of Probation and Parole had the

power “[t]o establish conditions of supervision” for sex offenders sentenced to

community supervision for life. Tennessee Code Annotated section 40-28-104 (1996).

Accordingly, we reject Nunn’s assertion that the conditions of his supervision were

“fixed” at the time he committed his last offense or somehow limited to those then-

imposed on regular parolees. The Tennessee Supreme Court has recognized that

pursuant to Tennessee Code Annotated section 39-13-524, a sex offender’s supervising

officer “is granted wide discretion in imposing supervisory requirements.” Ward, 315

S.W.3d at 474; see also Calvert v. State, 342 S.W.3d 477, 490 (Tenn. 2011) (noting that

community supervision requires “regular reporting to a parole officer who has the

discretion to impose conditions of supervision”).

The adoption of the Sex Offender Directives in 1999 was simply a policy change

that clarified how the executive branch agency would exercise its “pre-existing

discretionary authority” to impose these individualized conditions of supervision. Utley,

118 S.W.3d at 715 n.18. The copy of the Sex Offender Directives signed by Nunn

46

expressly states that the listed conditions are “guidelines” established for sex offenders

that will apply “until my Officer and treatment provider, or the Board determines

otherwise.” Thus, the Sex Offender Directives were in the nature of “guidelines intended

to provide a framework for the [agency’s] exercise of pre-existing statutory discretion,”

Utley, 118 S.W.3d at 719, and their adoption did not run afoul of the ex post facto clause.

In any event, we reject Nunn’s contention that the Sex Offender Directives

inflicted greater punishment than the law allowed when the crimes were committed. See

Pruitt, 510 S.W.3d at 411 (quoting Calder, 3 U.S. (3 Dall.) 386). In order to determine

whether the punishment for criminal conduct has increased, we must identify the

available punishment for the offenses at the time the defendant committed them. Lay v.

Comm’r, Tenn. Dep’t of Corr., No. M2005-02245-COA-R3-CV, 2007 WL 2089742, at

*4 (Tenn. Ct. App. July 10, 2007). We focus on “the standard of punishment prescribed

by each statute, rather than the punishment actually imposed.” Doe v. Gwyn, No. E2010-

01234-COA-R3-CV, 2011 WL 1344996, at *11 (Tenn. Ct. App. Apr. 8, 2011). Pursuant

to the existing statutes, Nunn was sentenced to community supervision for life with

individualized conditions, and he remains under supervision for life with individualized

conditions. The guidelines established by the Sex Offender Directives did not increase

Nunn’s punishment beyond what was prescribed when the crime was committed.26

Nunn also complains about the fact that he can now be punished for acts that were

not crimes when he committed his offenses. He claims that an ex post facto violation

exists because he can now be prosecuted for a criminal offense if he accesses the internet

or possesses alcohol, when the conditions of supervision for regular parolees when he

committed his offenses did not prohibit these same acts. However, these facts do not

implicate the ex post facto clause. Again, the Tennessee Constitution provides that “laws

made for the punishment of acts committed previous to the existence of such laws, and by

them only declared criminal, are contrary to the principles of a free Government;

wherefore no Ex post facto law shall be made.” Tenn. Const. art. I, § 11 (emphasis

added). The ex post facto clause would prohibit a “law that makes an action, done before

the passing of the law, and which was innocent when done, criminal,” Pruitt, 510 S.W.3d

at 411, but that is not the situation before us. The Sex Offender Directives and Tennessee

Code Annotated section 39-13-526 do not make any action criminal that was innocently

taken by Nunn before the passing of the law.

The Court of Criminal Appeals rejected a similar argument in State v. Gibson, No.

E2003-02102-CCA-R3-CD, 2004 WL 2827000, at *1 (Tenn. Crim. App. Dec. 9, 2004),

perm. app. denied (Tenn. Mar. 21, 2005), where the defendant was convicted of one

26

For the same reasons, we discern no merit in Nunn’s argument that the 2012 statutory amendment

transferring authority over the community supervision for life program to the Department of Correction

has increased his punishment beyond what was prescribed at the time of his offenses.

47

count of failure to report to the Tennessee Bureau of Investigation sexual offender

registry. On appeal, the defendant argued that “the imposition of additional criminal

penalties amounted to increased punishment for his original sexual assault conviction in

violation of the ex post facto provisions of both the United States Constitution and the

Tennessee Constitution.” Id. The Court of Criminal Appeals rejected this argument,

explaining that his sentence was imposed not as additional punishment for his original

sex offense, but rather for his separate offense of failing to timely file monitoring forms

with the TBI, which did not violate any prohibition against ex post facto laws. Id. at *3.

“‘It is hornbook law that no ex post facto problem occurs when the legislature creates a

new offense that includes a prior conviction as an element of the offense, as long as the

other relevant conduct took place after the law was passed.’” Id. at *4 (quoting Russell v.

Gregoire, 124 F.3d 1079, 1088-89 (9th Cir. 1997)). As such, the fact that the defendant’s

original conviction was one of several elements required in order to be convicted for the

offense of failure to report to the sex offender registry was “of no consequence for an ex

post facto analysis.” Id. The same reasoning applies here. If Nunn is eventually

convicted of the offense of knowingly violating a condition of his community

supervision, it will be as punishment for a separate offense taking place after adoption of

the Sex Offender Directives. The Department of Correction has not impermissibly

altered the definition of criminal conduct in violation of the ex post facto clause.

E. UAPA

Finally, Nunn argues that the “Sex Offender Directives were not promulgated in

compliance with the Administrative Procedures Act.” The allegations in Nunn’s

amended complaint regarding the UAPA were vague. For Counts 13 and 14, his

amended complaint alleged:

COUNT THIRTEEN

92. The rules and orders promulgated by the TDOC to which the Petitioner

is subject were not adopted in conformity with the administrative

procedures act. “Any agency rule not adopted in compliance with this

chapter shall be void and of no effect and shall not be effective against any

person or party nor shall it be invoked by the agency for any purpose.”

Tenn. Code Ann. § 4-5-216.

COUNT FOURTEEN

93. This Court must declare the rule or order invalid because the rules and

orders violate constitutional provisions, exceed the statutory authority of

the agency, were adopted without compliance with the rulemaking

procedures provided for in this chapter or otherwise violates state or federal

law. Tenn. Code Ann. § 4-5-223.

48

On appeal, Nunn added very little to this allegation. His brief claims that the “rules and

orders promulgated by the TDOC to which the Petitioner is subject were not adopted in

conformity with the Uniform Administrative Procedures Act.” Nunn mentions that the

Sex Offender Directives were created by the Sex Offender Treatment Board and enforced

by the Board of Probation and Parole before the Department of Correction acquired

jurisdiction over them. He then summarily declares, “It is this TDOC adoption and

promulgation that was in direct contravention of the Administrative Procedures Act and

thus the directives are void.”

We decline to consider the merits of this issue. Nunn does not specify which

“rules and orders”27 he seeks to challenge or how they fail to comply with any particular

provision of the UAPA. “The UAPA requires a state agency in Tennessee to follow

uniform procedures when making rules.” Abdur’Rahman v. Bredesen, 181 S.W.3d 292,

311 (Tenn. 2005) (citing Tenn. Code Ann. § 4-5-201 et seq). The UAPA contains

“detailed procedures govern[ing] public hearings on the content of proposed rules, the

conduct of those hearings, approval of the rules by the Attorney General, filing of the

rules with the Secretary of State, and publication in the administrative register.” Id. Part

2 of the UAPA contains sections -201 through -231 regarding “Rulemaking and

Publications,” and Nunn only cites section -216 providing that an agency rule not adopted

in compliance with this chapter shall be void.

“It is not the role of the courts, trial or appellate, to research or construct a

litigant’s case or arguments for him or her, and where a party fails to develop an

argument in support of his or her contention or merely constructs a skeletal argument, the

issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Sup.Ct., 301 S.W.3d 603, 615

(Tenn. 2010). “Parties must thoroughly brief the issues they expect the appellate court to

consider.” Waters v. Farr, 291 S.W.3d 873, 919 (Tenn. 2009) (Koch, J., concurring in

part and dissenting in part). “The adversarial system of justice is premised on the idea

that ‘appellate courts do not sit as self-directed boards of legal inquiry and research, but

essentially as arbiters of legal questions presented and argued by the parties before

27

With several exceptions, the UAPA defines a “rule” as an “agency statement of general

applicability that implements or prescribes law or policy or describes the procedures or practice

requirements of any agency.” Tenn. Code Ann. § 4-5-102(12). It defines an “order” as “an

agency action of particular applicability that determines the legal rights, duties, privileges,

immunities or other legal interests of a specific person or persons.” Tenn. Code Ann. § 4-5-

102(7). The brief filed by the appellees states, “Petitioner offers nothing in support of his claim

that TDOC adopted or promulgated anything related to the sexual offender directives which are

the subject of his community supervision, because they have not done so.” The Department

claims that it simply “determines which Directives are applied to an individual person on

community supervision.”

49

them.’” Malmquist v. Malmquist, No. W2007-02373-COA-R3-CV, 2011 WL 1087206,

at *11 n.21 (Tenn. Ct. App. Mar. 25, 2011) (quoting State v. Northern, 262 S.W.3d 741,

767 (Tenn. 2008) (Holder, J., concurring in part and dissenting in part)). Because Nunn

failed to develop more than a skeletal argument regarding “compliance with the

Administrative Procedures Act,” we do not reach the merits of this vaguely articulated

issue.

V. CONCLUSION

For the aforementioned reasons, the decision of the chancery court is hereby

affirmed in part, reversed in part, and remanded for further proceedings. Costs of this

appeal are taxed one-half to the appellees, Tennessee Department of Correction and the

Attorney General, and one-half to the appellant, Craig Nunn, and his surety, for which

execution may issue if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

50