Petition for Writ of Certiorari — Johnson v. Haslam

Supreme Court US.

70

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1o1149

IN THE

~. | OPFICE OF THE UC. &RK

Supreme Court of the United States

ee

TERRENCE JOHNSON, JIM TIARRIS, JOSHUA ROBERTS,

Petitioners,

Bitnl HASLAM, Governor of the State of Tennessee; MARK GOINS,

Coordinator of Elections; Tre HarGerr, Secretary of State of

‘Tennessee; RICHARD HIOLDEN, Administrator of Elections for

Shelby County; Kim BuckLey, Adininistrator of

Madison County; ALBERT UJ. Trecik, Administrator of Elections

for Davidson County, in their official capacities,

Klections for

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNEPED STATES

COURT OF APPEALS FOR THE SIXTIL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TRICIA LIERZFELD

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF TENNESSEE

PO. Box 120160

Nashville, Tennessee 37212

(615) 320-7142

NANCY G. ABUDU

Counsel of Record

LAUGHLIN MCDONALD

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

230 Peachtree Street

Atlanta, Georgia 30303

(404) 523-272

nabudu@aclu.org

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

br APPEAL

"TS WEPH DECISIONS OF

STRIKING DOWN LAWS TH

MENY THE RIGHT TO VOT

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His DECISION DELOW NisG

MIIEANING ANT SCOPE O11

FOURTH AMENDMENT

VIEFH THI 13 49

LARMAN V. FORSSENIl

Hk COURT OF APPEALS HAS DECIDI

IN IMPORTANT QUESTION OF STAT!

LW THAT CONFLICTS WITH DECISIOT

I THE TENNESSEE SUPREME COU!

PROHIBITING LAWS 1

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HE QUESTIONS PRESI

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THE MEANING PE OF TH

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ENDMEN

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BN TO hh G52) l

U! APPREALS HA

DECIDED AN IMPORTANT QUESTIO?

OF STATE LAW THAT CONFLICTS WITH

DECISIONS OF THE TENNESSE!

SUPREME COURT PROHIBITING LAWS

THAT RETROACTIVELY EXPAND

CONVICTED PERSON'S PERIOD

itis a Ol ni

DISENFRANCHISEMENT

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ASE IS AN APPROPRIA

OR RESOLVING THEM

After reviewing the certificate-of- residency

requirement, the Court) held that) the filing

requirement that the statute “imposed upon the

voter who refuse/d] to pay the poll tax

constitute[d] an abndgment of [the] right to vote

by reason of failure to pay the poll tax” and

contravened the Twenty Fourth Amendment. /d

at 542. It is important to note, however, that the

Court inp Harman did not opine on whether the

certificate-of-residency requirement itself fell

within the Amendment's “other tax” language

Thus, the Supreme Court) has not) addressed

directly the threshold question presently before

this panel: Whether the requirement that the

Plaintiffs pay restitution and child-support

arrears amounts to a “tax” within the meaning of

(>

the Twenty-fourth Amendment's proseriptions

The majority clarms that § 40-29-202(b)

and (c) do not invoke the Twenty-lFourth

Amendment's protections because they condition

voting on payments of obhpations that the

“Plaintiffs themselves incurred.” and “do not

represent taxes on voting imposed by the state.”

May. Op. at 12. 1 beheve this reasoning infirm

Certainly, the types of payments at issue here are

distinguishable from those in Harman and

Harper. The contested payments in both of those

cases were the payments that most commonly

come to mind upon hearing the term “poll tax”

\s previously mentioned, the Supreme Court also

addressed the validity of a “poll tax” in Ffarper ov. Virginia

State Board of Elections, and ultimately declared the poll

tax in state clections unconstitutional under the lqual

Protection Clause of the Fourteenth Amendment. /farper

OH:

LTA } pay Capibaty 1 { : |e

vied Upon each Person Within the purisdict

he taxXINnL powe) md within a certam cla

la} tax upon the privilege of bem.” Blac

Dictionary L159 (6th ed. 1990):° see Harp

LIS. at GOR G69 CLevy by the poll An

imiliar form of taxation GQnternal quotati

marks omuitted)): see also Hlarman BkO I

¢ , pa) \

»279 nn. | 0 82 (describing the tit ! !

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language oof the Amendment precludes the

hmposition of any “other tax” and the Harman

Court made plain that because the Amendment's

drafters intended the Amendment to “nulliffy]

sophisticated as well as stmple minded modes of

mmMpairing the meght” to vote, Harman, 380 U.S. at

D540 41 Gnternal quotation marks omitted), the

absolute prohibition on taxes tncludes their

“equivalent or milder substitute|s].” /d. at 542

1. Portions of the Payments Under

§ 40-29-202(b) and (c) Are Taxes.

There is a notable absence of case law

developing what constitutes an “other tax” such

that at falls within the purview of the Twenty

fourth Amendment. And those cases that do

address whether a particular payment amounts to

a tax are largely unhelpful because they deal

almost exclusively with the costs levied indirectly

on the right to vote as a-result) of voter

identification requirements and fail to analyze

the issue under the Twenty-fourth Amendment's

“other tax” language. See, e.g., Gonzalez

Arizona, 485 F.8d 1041, 1049 (9th Cir. 2007)

(holding, without much discussion, that Arizona's

identification law did not amount to a poll tax

under the Twenty-Fourth Amendmeni:); /rd

Democratic Party v. Rokita, 458 i. Supp. 2d 775,

826-27 (S.D. Ind. 2006) (rejecting a poll-tax

challenge to Indiana’s” photo-identification law,

but curiously failing to cite or expheitly analyze

the Twenty-Fourth Amendment), affd sub nom

Crawford v. Marion County Election Bd., 472 F.3d

949 (7th Cir. 2007), affd 128 S. Ct. 1610 (2008):

ir

Sa

Common Cause/Ga. cv. Billups, 4839 Fo Supp. 2d

1294, 1354-55 (NLD. Ga. 2006) (holding Ceorgia’s

revised photo-identification statute did not

constitute a poll tax under the Twenty-fourth

Amendment); Common Cause/Ga. vo. Billups, 406

Il Supp. Yd 1826, 1866-70 (ND. Ga. 2005)

(ianding “a substantial likelihood of success” on

the claim that Georgia's photo-identifieation

requirement imposed an unconstitutional poll tax

In violation of the Pwenty-Fourth Amendment):

In re Request for Advisory Opinion Regarding

Constitutionality of 2OOS PA 71, TAO N.W.2d AAA,

163-66 (Mich. 2007) (holding that) Michigan's

identification law did not amount to a poll tax

under the ‘Twenty-fourth Amendment = and

agreeing with Pokita’s reasoning): cf. Wetnschenk

vu. State, 208 S.W.8d 2BO1, 2138-14 (Mo. 2006)

CWhile) requiring payment to obtain a birth

certificate is not a poll tax itis a fee... land]

Harper makes clear that all fees that) impose

financial burdens on eligible citizens’ right to

vote, not merely poll taxes, are impermissible

under federal law.”).

As the precise question at issue here is one of first

Impression im this Cireuit, | turn first to the

Twenty-Fourth Amendment's text. The Supreme

Court has emphasized on numerous occasions

that in interpreting the text of an Amendment,

the courts “are guided by the principle that ‘[t}]he

Constitution was written to be understood by the

voters; its words and phrases were used in their

normal and = ordinary as— distinguished from

techmical meaning.” District of Columbia v.

Heller, 128 S. Ct. 2788, 2788 (2008) (quoting

o9a

(nited States vv. Sprague, 282 US. T16. 7T38l

(1931)) (alteration in original). “Normal meaning

mav of course include an idiomatic meaning, but

it excludes) secret or technical meanings. that

would not have been known to ordinary citizens”

at the time the Amendment was proposed and

ratihied. dd.

Section | of the Amendment reads

The mght of citizens of the United

States to vote im any primary or other

election for President © 01 Vice

President, for electors for President or

Viee President, or for Senator. ot

Representative in Congress, shall not

be demed or abridged by the United

States or any State bv reason. of

failure to pay any poll tax or other tax

LIS. Const. amend. XXIV. In determining what

types of “other taxfes]” the drafters had in mind

the common dictionary definitions of the term

re

‘tax’ are a useful starting point. At the time of

the ‘Twenty-Fourth Amendment, tax Was

ordinarily defined as “a usufally]) pecuniary

charge imposed by legislative or other public

authority upon persons or property for public

purposes: a forced contribution of wealth to meet

the pubhe needs of a government.” Webster's

Third New International Dictionary 23845 (14th

ed. 1961 & 15th ed. 1966). Similarly, the legal

definition of “tax” at the time of the Amendment's

debate and ratification was “[a] forced burden.

charge, exaction, imposition, or contribution

assessed in accordance with some reasonable rule

Siler

of apportionment by authority of a sovereign state

upon the persons or property within its

Jurisdiction to provide pubhe revenue for the

support of the government, the administration of

the law, or the payment of public expenses.”

Ballentine’s Law Dictionary 1255 (8d ed. 1969);

see Black's Law Dictionary 28 (4th ed. 1951) CLA]

pecuniary contribution .. . for the support of a

rovernment.'); see also United States v. State Tax

Commn of Miss.. 421 U.S. 599. 606 (1975)

(indicating that the “standard definition of a tax”

Is an “enforced contribution to provide for the

support of government.” (quoting United States |

La Franca, 282 U.S. 568, 572 (1931)). In essence.

a “tax” at the time of the Amendment had the

following essential components: (1) that it be

levied by the government (2) for the support of the

rovernment or the general public.

Contrary to the Plaintiffs’ contention, the

entirety of the payments at issue here is unlikely

to fit the common definition of “tax.” Although

child-support and restitution orders amount. to

forced monetary contributions imposed by the

State of Tennessee or the U.S. Government, their

primary purpose is to benefit dependent children

and the victims of the Plaintiffs’ criminal actions,

as opposed to the public needs of the government.

As a result, | beheve that as a general matter

these payments mav be more’ appropriately

viewed as debts. See Black's Law Dictionary

1628-29 (4th ed. 1951) (noting in the “Practice”

section of the definition of “tax” that a tax, “[iJn a

general sense, [is] any contribution imposed by

government upon individuals, for the use and

bla

service of the state. whether under the name of

toll, tribute, tallage. gabel. impost, duty, custom,

excise, subsidy, aid, supply, or other name. And in

Its essential characteristics is not aie debt”

(emphasis added)): see also Ul'nited States v.

Reorganized CF&l Fabricators of Utah, Inc.. 518

US. 218, 220. 224 (1996) (distinguishing between

a tax and a debt under bankruptev law): ef. Jenny

Lynn Mining Co. v. Ohto Dept of Natural Res..,

780 F.2d 585, 589 (6th Cir. 1986) (One of the

cnaracteristics of a tax as opposed to a tee is that

a tax is an exaction tor public purposes rather

than a voluntary payment tor a private benefit.”)

But, in fact. | need not decide that broader

question here because my inquiry does not end

with consideration of the entirety of the payments

required under § 40-29-202(b) and (c). Although

we may understand child-support and restitution

payments as generally being paid for the benefit

of a party other than the government, a closer

Inspection of the obhgations at issue here

indicates that the government does reap a specific

and definable pecuniarv benefit from at least

some of the obligations required by ‘Tennessee's

statute. In the case of child-support arrears,

Tennessee law specifically authorizes the State to

augment an individual's obligation by five

percent, which is pavable to the government and

is plainly for its benefit. With regard to state and

federal restitution orders, there are also instances

in which the government is the recipient and

intended beneficiary of an individual's payments.

Thus, regardless of whether the entirety of the

payments required by § 40-29-202(b) and (c) can

6a

be properly defined as taxes in each case where

they are imposed, at least some of those required

payments can be so classified.

Looking to Tennessee's child-support-

payment provisions, pursuant to Tennessee Code

§ 8-21-403(a), the Tennessee clerk of a court who

“receivies|, handl[es.] and disbursfes] . . . child

support... under and by order of court 1s entitled

to charge and receive from the obligor the sum of

five percent (5°0) for any and all payments

received during each calendar month.” The five-

percent addition 1s not levied separately from the

child-support order: instead, it is “an obligation of

the obligor and shall be added to the amount of

court-ordered child support, making the total

obligation of the obligor the support plus the

clerk's fee.” /d. In the event that an individual

can afford to pav a portion of his or her child-

support arrears and remits that payment to the

clerk, the clerk is directed to “prorate any such

partial payment as to support and clerk's fee.” /d.

Thus, despite having paid the totality of the

onginal sum owed, an individual would still be

precluded from voting as a result of the failure to

pay only the state's five-percent levy. In essence,

although a child-support obligation in the most

general sense may be more properly considered

something other than a tax, the five-percent levy

added to that obligation, and which by statute

becomes part of that obligation, is an enforced

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“tax because under § 40-35-320 a restitution

order would amount to a forced contribution of

wealth to the State tor the general benefit of both

the State and the public. See also Tenn. Code

Ann. § 389-17-417(c)(2)(B) (requiring that certain

drug-related sentences include “restitution to any

government entity for the costs reasonably

incurred in cleaning the area in which [the drug]

offense occurred”). Second, in the federal system,

restitution orders are generally “governed by the

Victim and Witness Protection Act of 1982

CVWPA")."'2 United States v. Webb, 30 F.3d 687,

689 (6th Cir. 1994) (citing 18 U.S.C. §§ 3663,

3664). Although an order of restitution under the

VWPA is typically paid to and for the benefit of

the victim of the crime, id.: see also 18 U.S.C.

§ 3663(a)(1)(A), there is. however, at least one

exception relevant to the instant case. Pursuant

to § 3663(c), when a defendant has been convicted

of a crime under the Controlled Substances Act

and when there is “no identifiable victim, the

court may order that the defendant make

restitution” to the federal government. 18 U.S.C.

§ 3663(c)(1). The money collected is then

distributed to the State within which the crime

Since the enactment of the VWPA, Congress has enacted

number of additional statutes yoverning restitution,

including the Mandatory Victims Restitution Act of 1996

(“MVRA”"), which makes restitution to victims of certain

crimes mandatory, see 18 U.S.C. § 3663A,. and supplements

the VWPA. United States v. Lincoln, 277 F.3d 1112, 1113

(oF Cir. 2002) (‘Congress enacted the MVRA as a

supplement to the Victim Witness Protection Act (VWPA)

IS U.S.C. § 3663.")

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65a

occurred, with “65 percent of the total amount”

being “paid to the State entity designated to

administer crime — victim assistance,” id

§ 3663(c)(3)(A), and “35 percent of the total

amount of restitution’ being “paid to the State

entity designated to receive Federal substance

abuse block grant funds,” id. § 3663(c)(3)(B)

Restitution awarded under § 38663(c)

certainly fits the above-referenced definitions of a

“tax. Section 38663(c) imposes a monetary

obligation upon an individual, and the statute

makes plain that the restitution is collected and

then redistributed to fund state-run programming

for the general benefit of its citizens. See also

Reorganized CF] Fabricators, 518 U.S. at 224

(‘|A] tax is a pecuniary burden laid upon

individuals or property for the purpose of

supporting the Government.” (internal quotation

marks omitted)): cf. Wright v. McClain, 835 F.2d

143, 144, 145 (6th Cir. 1987) (holding that a

statute requiring “any person on parole or

granted a suspension of sentence in Tennessee’ to

pay thirty-five dollars per month into funds for

the Corrections Department to “defray the cost to

the general public of monitoring and supervising

the behavior of convicted offenders and _ to

compensate, 1n some measure, victims of emmuinal

misconduct” imposed a tax). Again, although

many restitution orders may not amount to a tax,

[ need not reach that broader question because

some of the restitution orders that § 40-29-202(b)

P tiffs have stated a viable cla

spection 10-29-202(b) an {

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quired under § 40-29-202(b) and (c) amount 1

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also Decker v. Carroll Acad., No. 02A01-9709-CV-

00242, 1999 WL 332705, *12 (Tenn. Ct. App. May

26, 1999) (unpublished) (noting that with regard

to the ex post facto clause, “[t]he Tennessee

Constitution can provide stronger protection than

that provided by the United States Constitution,”

and citing State v. Middlebrooks, 840 S.W.2d 317.

338 (Tenn. 1992), among other cases).

“The [federal] Ex Post Facto Clause is

implicated where a law punishes retrospectively

a law is retrospective if it changes the legal

consequences of acts committed before its

effective date.” Doe, 507 F.3d at 1003 (internal

quotation marks omitted). A claim under the

federal Ex Post Facto Clause generally invokes a

two-part inquiry. First. we determine the nature

of the challenged law, evaluating whether it is

civil, regulatory, or punitive. See Smith v. Doe.

938 U.S. 84, 92 (2003). If the legislature intended

to impose a punishment and the law apphes

retroactively, however, then “that ends the

inquiry. /d. “If, however, the intention was to

enact a regulatory scheme that is civil and

nonpunitive, we must further examine whether

the statutory scheme is so punitive either in

purpose or effect as to negate the State’s intention

to deem it civil.” /d. (internal quotation marks

and alteration omitted). In conducting this

examination, we consider the seven _ factors

outlined in Kennedy v. Mendoza-Martinez, 37

U.S. 144, 168—69 (1963). Smith, 538 U.S. at 97

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Thus, the first and potentially dispositive

I ; I

estion in the instant case 1s whether thi

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fails to acknowledge that § 40-29-202(b) and (c)

prolong the period of clearly penal

disenfranchisement. See infra Part 1.C.2

Under the present statutory scheme, a

compared to the law that was in effect when, the

Plaintiffs were convicted, sentenced, and

disenfranchised, the State denies the Plaintiffs

the right to vote solely because of their inability

to pay outright their outstanding restitution o1

Child support. Because the Plaintiffs would have

been otherwise entitled to vote automatically

pnor to the 2006 amendments, the statute in thi

Instant case in its Operation essentially expand

the lst of acts for which the State is authorized to

disenfranchise. What is) perhaps even mort

troubling about these provisions when compared

to those that the court faced in May, however, |

that the State is achieving covertly that which it

could) not accomplish outright even ona

prospective basis. Tennessee is not authorized to

deny the right to vote for mere failure to pay an

obligation, as that act is not an “infamous” crime

and the State is certainly not authorized to do so

In instances where the individual has yet to bi

convicted of any act related to the alleged

nonpayment.'© Yet, this is the practical effect

§ 40-29-202(b) and (c)

)

The majority also beheve the fact that restitution and

Child-support obligations exist to serve a civil and social

purpose, as opposed to a penal one, is somehow dispositive

That observation misses the mark. It is not the requirement

that the Platntiffs ultimately make these payments that |

find unconstitutional. Rather, ito i the State decision t

pay

Ss 4

( bal

In sum, | disagree with the majority's

conclusion that § 40-29-202(b) and (c) are not

punitive in intent. The Legislature's placement of

the provisions within the “Criminal Procedure”

Title of the Tennessee Code, coupled with the fact

that the provisions prolong penal

disenfranchisement, lead me to conclude that the

Tennessee leyislature enacted these provisions

with a punitive intent

2. Section 40-29-202(b) and (c) Are

Retrospective and Disadvantage

the Plaintiffs’ Rights.

Because I would conclude that § 40-29

202(b) and (ec) are punitive for purposes of the

state ex post facto analysis, I next turn to

whether the law is “retrospective” and whether it

works to “disadvantage the offender affected by

it.” State v. Pike, 978 S.W.2d 904, 925 (Tenn

1998) Gnternal quotation marks omitted); td. at

926 (indicating that only laws that = affect

substantive rights may disadvantage the

offender). Here, § 40-29-202(b) and (c) are

retrospective in that they apply “to events

occurring before its enactment.” Pike, 978 S.W.2d

at 925 (internal quotation marks omitted). The

Plaintiffs were tried, convicted, sentenced, and

disenfranchised prior to 2006, which was the year

that the Legislature enacted the challenged

provisions. The law works to disadvantage the

Plaintiffs’ substantive rights by imposing upon

condition the Plaintiffs ability to regain the right

ulfrage on those payment >that is DUNItive In Intent

them a greater punishment—a lengthened period

of disenfranchisement—than they would have

received prior to 2006. More specifically, § 40-29-

202(b) ard (ce) preclude the Plaintiffs from

regaining their fundamental right of suffrage

upon mere completion of their sentence, as they

would have been entitled to do under the pre-2006

framework. Instead, the provisions require the

payment of monetary obligations that the

Plaintiffs cannot make. As | have emphasized

repeatedly, were it not for the provisions, the

Plaintiffs would now be able to vote.

The majority disagrees with this

conclusion. It posits that the — Plaintiffs’

punishment did not change after the 2006

amendments and that § 40-29-202(b) and (c) do

not amount to punishment. Again, however, this

conclusion fails to recognize that § 40-29-202(b)

and (c), in fact, increase the Jength of the

Plaintiffs’ punishment. It also fails to recognize

that retroactive changes to the Jength of a

particular punishment impheate Tennessee's ex

post facto prohibition regardless of whether the

type of punishment remains constant. See State ¢

Pearson, 858 S.W.2d 879, S83) (Tenn. 1993)

(Gndicating that the proper inquiry is “whether

the law changes the punishment to the

defendant's disadvantage, or inflicts a greater

punishment than the law allowed when the

offense occurred’). No one contests that prior to

the 2006 amendments, the Plaintiffs would have

regained suffrage upon completion of their

imprisonment, parole, and probation. Now they

are disenfranchised (i.c., punished) for a longer

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

TERRENCE JOHNSON, JIM

HARRIS,ALEXANDER

ae

ee

FRIEDMANN, and JOSHUA )

ROBERTS. )

)

Plaintiffs, Case No.

Vv. ) 3:08ev0187

PHIL BREDESEN, Governor _ ?

of the State of Tennessee, ) Judge

BROOK THOMPSON, ) Thomas A.

Coordinator of Elections. ) Wiseman, Jr.

RILEY DARNELL, Secretary ?

of State of Tennessee, )

JAMES JOHNSON,

4

Administrator of Elections

for Shelby County, KIM

BUCKLEY, Administrator of

Elections for Madison

County, and RAY BARRETT,

Administrator of Elections

for Davidson County, in their

official capacities,

~e oe ~— oe oe eee? oe

Defendants.

MEMORANDUM OPINION

Before the Court are (1) a Motion for

Judgment on the Pleadings as to the Constitutional

Challenges Contained in the Amended Complaint

(Doc. No. 58) filed by defendants Phil Bredesen,

Brook Thompson and Riley Darnell (collectively. the

“State Officials’), and (2) Plaintiffs’ Motion for

Judgment on the Pleadings or in the Alternative

Motion for Partial Summary Judgment (Doc. No. 68).

The motions have been fully briefed and the parties

presented oral argument on their motions at a

hearing conducted on September 15, 2008.

For the reasons set forth below the Court finds

that the State Officials’ motion is meritorious and

that they are entitled to judgment in their favor as a

matter of law as to Counts One through Five of the

Amended Complaint. Those Counts’ will be

dismissed, leaving for adjudication only plaintiff

Alexander Friedmann’s due-process claims under the

United States and Tennessee Constitutions, set forth

in Count Six of the Amended Complaint. Plaintiffs’

motion for judgment will be denied.

[. INTRODUCTION

After this Court issued its Memorandum

Opinion and Order (Doc. Nos. 44 and 45) denying the

County Official defendants’ motions to dismiss,

plaintiffs filed an Amended Complaint (Doc. No. 57)

in which they joined a new plaintiff, Joshua Roberts.

In the Amended Complaint as in the original

Complaint, Plaintiffs seek to invalidate’ those

portions of Tenn. Code Ann. § 40-29-202 that

condition the restoration of voting rights for people

previously convicted of a felony upon their payment

of certain legal financial obligations, namely

restitution and child support. Plaintiffs assert that

this statute, by denying the vote to those who have

not satisfied certain legal) financial obligations,

violates their fundamental right to vote and

discriminates among citizens on the basis of wealth.

More specifically, Plaintiffs claim that the statutory

provisions at issue violate the Equal Protection

Clause of the Fourteenth Amendment to the United

States Constitution (Counts One and Two), the

Twenty-Fourth Amendment to the United States

Constitution (“Count Three”), the Ex Post-Facto

Clauses of the United States and Tennessee

Constitutions (“Count Four”), and the Privileges and

Immunities Clauses of the United States and

Tennessee Constitutions (“Count Five’). Count Six of

the Amended Complaint asserts that the State of

Tennessee has refused to restore plaintiff Alexander

Friedmann’s voting rights despite the State's failure

to produce any documentation showing Mr.

Friedmann owes outstanding restitution, in violation

of the Due Process Clauses of the United States and

Tennessee Constitutions. Plaintiffs name as

defendants those state and county officials, in their

official capacity, they allege are responsible for the

implementation and enforcement of the state

statutory scheme as it pertains to voter eligibility

and registration. They seek declaratory and

injunctive relief, nominal damages, attorney's fees

and costs.

The State Officials have now filed their motion

for judgment on the pleadings under Rule 12(c) of the

Federal Rules of Civil Procedure, asserting that,

QO38a

remain ineligible to apply for a voter registratio

card or to have the right to suffrage restored unle;

they have “paid all restitution to the victim or

victims of the offense ordered by the court as part of

the sentence,” Tenn. Code Ann. § 40-29-202(b), and

unless they are “current in all child support

obligations.” Tenn. Code Ann. § 40-29-202(c)

Plaintiffs Terrence Johnson, Jim Harris and

Joshua Roberts are all convicted felons and resident:

of Tennessee who have served their prison sentence:

and satisfied the conditions of supervised release

and wish to vote in upcoming elections. They aré

incligible under § 40-29-202 to apply for restoration

of their voting rights, however, because they owe

past-due child support payments and/or restitution

to the victims of the crimes for which they were

convicted.

IT. STANDARD OF REVIEW

A motion for judgment on the pleadings under

Rule 12(c) of the Federal Rules of Civil Procedure

applies the same standards as a motion to dismis:

under Rule 12(b)(6). Lindsay v. Yates, 498 F.3d 434,

138 (6th Cir. 2007); Kottmyer v. Maas, 436 F.3d 684

689 (6th Cir. 2006). Under the applicable standard,

the court reviews the complaint in the light most

favorable to the non-moving party, accepting as tru

all well pleaded factual allegations. Commercial

Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327

336 (6th Cir. 2007) (citing United States v. Moriarty

8 F.3d 329, 332 (6th Cir. 1993)). The court need not

accept as true legal conclusions or unwarranted

factual inferences cor.tained in the pleadings. Jd

(citing Gregory v. Shelby County, 220 F.3d 433, 446

(6th Cir. 2000)). To survive the motion, “the

complaint must contain” direct or inferential

allegations respecting all the material elements

under some viable legal theory.” /d. (citing Mezibor

v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)). See also

Shuptrine v. McDougal Littell, No. 1:07-ev-181, 2008

WL 400453, at * 1 (K.D. Tenn. Feb.12, 2008) (ruling

on a Rule 12(¢c) motion and identifying the standard

for a motion to dismiss under Rule 12(b)(6), in lyht

of Bell Atl. Corp. v. Twombly, U.S. —, 127 5. Ct.

1955, 1974 (2007), as whether the complaint pleads

enough facts to state a claim to rehef that 1s

plausible on its face).

Although Plaintiffs’ motion, lke the State

Officials’, is characterized first as a motion for

judgment on the pleadings, the only pleading the

Court can consider is the Amended Complaint, as the

State Officials have not filed an answer to the

Amended Complaint. They did file an answer to the

original complaint in which they denied or were

without sufficient information to admit or deny most

of the factual allegations in the complaint.

Regardless, there is no dispute regarding the import

and effect of the statutes at issue, and the State

Officials, for purposes of the Plaintiffs’ motion, do not

dispute those facts set forth in the Plaintiffs’

Statement of Material Facts. It appears that the

issues presented are strictly legal in nature and do

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not require the resolution of any factual issues in any

party's favor.”

Hl. ANALYSIS AND DISCUSSION

A. Whether § 40-29-202 Violates the Equal

Protection Clause

The State Officials argue that subsections (b)

and (c) of § 40-29-202 do not violate the lHqual

Protection Clause of the United States Constitution

because: (1) felons do not have a fundamental right

to vote; (2) wealth quahfications do not discriminate

against a suspect class; and (3) because felons do not

have a fundamental night to vote, the statutory

limitations on restoration of felon voting rights are

subject to a rational-basis analysis, which the State

meets. In response, Plaintiffs do not dispute that the

State may disenfranchise convicted felons, but

essentially argues that once the right to vote is

restored, any restrictions on that right should be

subject to strict scrutiny. They also argue that § 40

29-202 has a disparate impact on the indigent

Minally, they argue that the distinction made by the

statute between those ex-felons who can and cannot

pay restitution and past-due child support is not

rationally related to any legitimate government

purpose and, alternatively, that they should be able

‘The State Officials do contest the Plaintiffs’ faetual assertion

that the challenged statutory) provisions disproportionatels

affeet the indigent.

O74

further, the Court is cognizant of the fact that

the statutory requirement that convicted felons be

current in all child-support payments before being

ehgible for reenfranchisement bears a particularly

tenuous” relationship with any legitimate state

objective particularly when, as appears to be the case

for plaintiffs Johnson and Harris, the parent owing

past-due child support actually has custody of the

child and cannot in any sense be charged with being

a “dead-beat” parent. Plaintiffs argue that this

restriction on voting-rights restoration is no more

rational than a requirement that a convicted felon be

current on mortgage payments or credit card bills

before being permitted to register to vote. Plaintiffs

may well be correct, but the fact remains that

Tennessee has a legitimate interest 1n encouraging

payment of child support obligations, and § 40-29-

202(c) is not unrelated to the promotion of that

interest.

Kssentially the only real argument Plaintiffs

offer in their attempt to negate the validity of the

state Officials’ proffered rational basis for the

legislation at issue is that “|t]here is no reason to

beheve that the non-payment of an often sizeable

financial obligation immediately upon release from

Supervision can in any way be used as a proxy for

determining a citizen’s commitment to abide by the

laws. If anything, the [legal financial oblgation]

requirement creates a serious barrier for purposes of

rehabilitation and reintegration into society -

status. Nor have they addressed what effect doing so might

have on their ehgibility to resister to vote

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Article 1. Section 11 of the ‘Tennessee

Constitution states 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.” Similarly, the United States Constitution

provides that “[n]o State shall... pass any... ex

post facto Law.” U.S. Const., Art. 1, § 10. Although

the Tennessee Supreme Court has construed the

state provision to have a broader reach than its

federal counterpart, Utlev vu. Tenn. Dept of

Corrections, 118 S.W.3d 705. 715 (Tenn. Ct. App.

2003), when a party raises a challenge under both

state and federal Ex Post Facto Clauses, the

Tennessee appellate courts conduct a single analysis

for both claims, and they follow United States

Supreme Court precedent when interpreting both the

federal and state clauses. Doe v. Bredesen, 507 F.3d

998, 1008 (6th Cir. 2007) (citing King v. Tenn. Bd. of

Paroles, No. M2005-2821-COA-R3-CV, 2007 WL

1555815 (Tenn. Ct. App. May 29, 2007); Powers v.

Tenn. Bd. of Probation & Paroles, No. M2005-1529-

COA-R3-CV, 2007 WL 1515141, at *7 (Tenn. Ct. App.

May 23, 2007): In re Rahim, No. M2006-2216-COA-

R3-CV, 2007 WL 1308322, at *2 (Tenn. Ct. App. May

3, 2007)).

The Ex Post Facto Clause of the United States

Constitution prohibits laws that punish

retrospectively. “ ‘[A] law is retrospective if it

changes the legal consequences of acts committed

before its effective date. ~ United States v. Davis, 397

F.3d 340. 347 (6th Cir. 2005) (quoting Miller v.

Florida, 482 U.S. 423, 430 (1987)). “ ‘[T]he focus of

120a

Smith. 538 U.S. at 92- 93 (citing Flemming v. Nestor,

363 U.S. 603, 617 (1960)). The first question then is

whether the Tennessee legislature, in amending the

felon franchise ‘restoration provisions, “indicated

either expressly or [implicitly] a preference for one

label or the other.” i.e., civil or criminal. Smith, 538

U.S. at 93 (quoting Hudson v. United States, 522

U.S. 93, 99 (1997)).

Plaintiffs here insist that the provisions they

challenge are criminal and punitive in nature, citing

the recent case of May v. Carlton, 245 S.W.3d 340,

349 (Tenn. 2008), in which the Tennessee Supreme

Court held that “laws disenfranchising felons are

penal in nature.” See also Gaskin v. Collins, 661

SW2d 865. 868 (Tenn. 1983) (holding that the Ex

Post Facto Clause of the Tennessee Constitution

“prohibits the General Assembly from retroactively

disenfranchising convicted felons who have never

been adjudged infamous”). Plaintiffs also point out

that the provision at issue falls within the “Criminal

Procedure” section of the Tennessee Code, which

Plaintiffs insist “further establishes that Tennessee's

disenfranchisement law is an additional criminal

penalty for conviction.” (Doc. No. 67, at 22.)

In reality, although the challenged statute

falls within Title 40 of the Tennessee Code,

“Criminal Procedure,” it also falls within the Chapter

entitled “Restoration of Citizenship,” the purpose of

which is clearly not punitive in nature. Moreover,

although laws disenfranchising felons are punitive in

nature, laws providing for the re-enfranchisement of

felons are not. The Court concludes that the

statutory provisions at issue were not intended to be

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ug Whether § 40-29-202 Violates the

Privileges and Immunities Clause

of the U.S. and Tennessee

Constitutions

Plaintiffs do not cite, nor has the Court

discovered, any case stating that the right to vote in

federal elections is a privilege or immunity of the

citizens of the United States. Even assuming for

purposes of this motion that the right to vote is a

privilege or immunity of the citizens of the United

states, Plaintiffs’ claim under the Privileges or

Immunities Clause of the Fourteenth Amendment

fails for the same reasons as their claims under the

Kqual Protection Clause (Counts One and Two). The

“privilege” or mght of ex-felons to vote in) federal

elections can be suspended without violating the

Constitution. Richardson v. Ramurez, 418 U.S. at 56

Plaintiffs therefore cannot legitimately claim that

the privilege has been “abridged” in violation of the

Privileges or Immunities Clause of the Fourteenth

Amendment. Quite simply, a- practice that 1s

authorized under § 2 of the Fourteenth Amendment

cannot be deemed prohibited under § 1. Moreover, to

the extent Tennessee's re-enfranchisement scheme

does abridge Plaintiffs’ right or privilege to vote, it is

rationally related to a legitimate povernmental

interest as discussed above tn connection with

Plaintiffs’ Mqual Protection Clause challenge

IV. PLAINTIFFS’ MOTION FOR JUDGMENT