# Petition for Writ of Certiorari — Johnson v. Haslam > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1031%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2011 - **Citation:** 563 U.S. 1008 ## Text Supreme Court US. 70 \ a4 ma 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 L RSC)! Ie (ON NT 1¢ 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 RETROACTIVELY EAPANI PERSONS PERIOD OF ISENFRANCHISEM]! HE QUESTIONS PRESI JATIONAL IMPORTANCI : AN APPROPRIA1 ' ) ' Hit COUR \PPEAIT ONFLICTS WITH DECISIONS OF THI OURT STRIKING DOWN LAWS THA YENY THE RIGHT TO VOTE BAS! PERSON'S ECONOMIC STATI rt DECISIO i THE MEANING PE OF TH TWENTY-FOURTH WY ON V ENDMEN ELICTS ITI LIS COURT 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 Hk QUI LJ ING rar! NATIONAITI IMPORTANCI] 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 ! ! . = | || Ts)> pore H 1()T) \ i ( el ae ( ( _ 4 ate Capitatior 4 Ta f:) ‘ BIE ' ‘ f } 1 ePnLiol . frye 1) pI | | { | | } | 1 i YMename) rohibit By . lif | ‘i ryt | | nya hia pe rvay | itt | |) / / ' | r fy , j q) ' ] q | A | ( ( I (*t ] ' | | —_— | i” I 1 1) { I , | r } Hiy\ ior | hh } i W { int | | } I é 1 f 4 i)? waee { ) . rit i] [ i now \ | | . ] rT) On (“Maan 1 l } tine: wmystead | { 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 - ; | , 7 1 } ‘ t " | ’ " I Cit } eA , ¥ . " Ty | 1 I [ blgation ln LOW pes eee , a - ‘ { ’ »< mg) t rhs i ¢?T 11] ( \ at: ¢*? +{ } LU). 1 pe ‘ > + ‘ ’ on 4 , »») ? } | | ( | ) i { PCC da Unt L¢ ‘ i bildtci } ] ; 7. SG ‘ ] ‘ t 1? : er ndividual ODP ALCO a . ees ‘ eo fade? | ‘ vernme { rruai Th 1] wate 1) ram ' " thy, rT ‘ ; +1. ; } | : ' l u 1] t y i 7 > > ’ | j Cj I it r¢ l [ { . . | , | the tate eneral tune A ¢ ’ ; ] } | ; ) Lt \ } UI , ti ' , t \ . ‘ r p rthye ! " ! Re i! by Ve] rt} nendment torl } ' ‘ j . ‘ ls ft} y r i > ? , j . ; +a? t1¢ rY ‘ ¢ I , TT { { t reman ms the State fron x C1 . Pr ' - " ; ; > " tf ) T ? T til LD] f iW . | if \ i i Sz Pati { de minin t provided 1 Ostant sinha ; y > ederi ) ( ) 14 i / 4 SO ' ; ~ } I . ; ‘ cr, “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.") h | 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 { Operate Analogously ti Tax that . . quired under § 40-29-202(b) and (c) amount 1 ohibited tax is not altered by the fact that th iyment ma ilso meet tl broader definit debt becaus« mai hothy i( OY (b) and r ire paym«e rerequlsit Otl! 1 etinitio! instead mn i} t | " { t issu Harman to the payments requil ere | help to clar the paramete! i t I t10Nn OF ta 1 pi further ipport conclusion t t th ventv-] nent e1 t rt in I ‘) r] - cr : ter mai | i } ' mpor . , me {| Depart tted | ntil nel | | f i pre a | } Lic biti? } ‘ + gry Del ly I i! iT rddut e | | i I A at | preclude ah Mira | | J tel | mnounted Pat ae | paste +) | | mancial oblis il yr aenpt yilar rder titi O} } , rd ) Or mar Dil il iT fog upport "al a ) ’ Hlarne ‘ ‘ | rT ty DD. Ove &, Ld : redery | 1¢ ) } f / ; i 1 ‘ Xjly . 3 T Lhict ( yt | | : | , fs ib] . t } , } 7 | 1w) , . | , | ' 7 ; ' ’ ri¢ | {Ji tant mapas ' j rt ' aby i a ( iT) ’ | ' | ‘ | : 1) if ta . : i mimnoiut r¢ yt) i [ il , | » BL | rne} ‘ ra Ul th , r (>) ct ’ iy aeti | j | {ict rt 7 a }uil ‘ | ra al eteee eC] thy " tf Bee ’ | 4 as loop 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 «> Thus, the first and potentially dispositive I ; I estion in the instant case 1s whether thi | P af 2 wt ? , 7 | ' lative | » | 1 } | b b ‘ PO_IYQP' ; sf ' , ‘ ; t ' 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 RA sy , i « iF. r> ‘ | " | ‘ y ; ‘ 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 Le Fs 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 11Qa : : z t 3 Bat. mse ¢ i see ‘ 4 ‘ { | 1] | ii b? } ; > y+ —a © eS ' } . i i } ari f 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 } ; i } ‘ ! ‘ Al } } ae cil 4 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1031%3A1. Public record. Not legal advice.