Bad Tennessee Decisions: State v. Marcum

The idea has been advanced recently that it is an attack on the independence of the judiciary to suggest that members of the appellate courts should be dismissed via retention election. I submit that most Tennessee appellate judges should be so dismissed, on the basis that our appellate courts routinely demonstrate legal reasoning so poor as to shock the conscience.

Here is an example: State v. Marcum, 109 S.W.3d 300 (Tenn. 2003). This is a criminal appeal involving the proper interpretation of a statute that is not exactly fit for mixed company, Tennessee Code Annotated § 39–13–501(7). That statute provides:

(7) “[Defined Term]” means [A], [B], [C], [D], or any other intrusion, however slight . . . .

In the statute, the terms that have replaced by letters are assorted acts. The Supreme Court holds, in Marcum, that act [C] can be committed without an "intrusion": "The phrase, 'or any other intrusion,' has no modifying effect upon the defined . . . acts. The word 'or,' as used in the statute, is a coordinating conjunction that functions merely to introduce a generic non-specific alternative."

This is nonsense. The word "or" is certainly disjunctive, but the court has read the word "other" out of the statute. The word "other" is certainly descriptive of the preceding list. Conversation would become impossible otherwise:

Q: Do you have any pets?
A: A dog, a cat, and a fish.
Q: Do you have any other animals?
A: A dog, a cat, and a fish.

Rinse, lather, repeat. The word "other" means that A, B, C, and D are all acts that involve "intrusion," but if the legislature left any off, they count too. Ejusdem generis and Noscitur a sociis both suggest this result: you do not read words in a statute in isolation. (Those principles also reinforce the conclusion that "intrusion" should be an element of each act, given the Defined Term, which, let us say, suggests such an element.) And each word in the statute should have a meaning. Deleting the word "other" yields precisely the result that the court reached: reaching the definition of each item without reference to the "intrusion" element. What we have here instead is sloppy, results-driven adjudication. If the court wants to adopt a "the sonofabitch had it coming" rule for criminal cases, let them do that and then take the consequences. 

A Call to Abolish the Office of the Tennessee Attorney General

The office of Attorney General of the State of Tennessee is an anomaly. First, it is filled by appointment of the Supreme Court, a body before which the Attorney General is charged with representing the interests of the State of Tennessee. Second, it has a disturbing tendency to publish laughably bad advisory opinions.

One of the most visible of those duties is the promulgation of opinions in response to dubia propounded by state officials. Recently, one was submitted regarding HB3576, the 2012 act vetoed by Governor Haslam outlawing Vanderbilt's dissolution-of-the-monasteries policy. The Attorney General's office (over the Attorney General's name) concludes that HB3576 violates the First Amendment's right to freedom of association. Yes, the Attorney General concluded that a legislative act attempting to protect associational freedoms from interference by a private institution actually infringes upon the right to free association.

The Attorney General's Office predicates that conclusion on Boy Scouts of America v. Dale, 530 U.S. 640,
647 (2000). Boy Scouts, of course, is the decision holding that the Boy Scouts cannot be compelled to repeal their restrictions on admission of known homosexuals to certain leadership positions, because doing so would compel the Boy Scouts to associate with persons against their will. The A.G.'s opinion next cites to Wiley Mission v. New Jersey, No. 10-3024 (RBK/JS), 2011 WL 3841437, at *13--16 (D.N.J. 2011), a trial-court decision applying Boy Scouts to conclude that a state law could not compel a nursing home operated by a religious institution to have a home resident on its board of directors. The Attorney General concludes from these authorities that a law prohibiting a private institution from enforcing an all-comers policy on subordinate associations within it impermissibly compels the institution to associate with people against its will.

This is a shockingly poor example of legal reasoning.

Boy Scouts and Wiley Mission---by the Attorney General's own admission and description---concern membership in the plaintiff institution. The private group in those cases said "we choose to limit the scope of our private association to certain people." The right to make that choice and enforce it via one's private group is commonly understood to be guarantied by the First Amendment (at least until one opens up a club house). But this is not what Vanderbilt says at all. Rather, Vanderbilt's statement is "specified conduct is a prerequisite to use of campus facilities and access to otherwise freely available benefits." Vanderbilt is not associating with student groups, because the students who comprise those groups are already Vanderbilt students. Furthermore, the parts of Vanderbilt itself capable of associating or being associated with---its board, faculty bodies, colleges---don't "associate" with student groups or student-group leaders in any meaningful way. The president of Vanderbilt Catholic didn't have an ex officio seat on the board of directors, or a right to harangue the School of Medicine. Rather, the student who could have been president of Vanderbilt Catholic was already on Vanderbilt's campus: the rights, privileges, and (most relevantly) interaction with other members of the university community that he enjoyed qua student would not have been increased by his position at the head of a student organization.

Before moving on, permit me to preempt two responses. First, the idea that use of Vanderbilt intellectual property constitutes an association. Perhaps it does: perhaps there is case law out there standing for the proposition that the right to use Vanderbilt trademarks enjoyed by sanctioned students groups constitutes a constitutionally significant form of association. But the A.G.'s opinion is not predicated on that ground; it certainly does not appear in the opinion's summation of Boy Scouts and Wiley Mission. Indeed, given the existence of an entire body of intellectual-property law dedicated to the question of implied association based on mark usage, I find the thesis questionable at best. Furthermore, nothing appears on the face of the facts that suggests that student groups receive a per se license to use Vanderbilt's name or marks.

Second, there is the issue of money. I find it unlikely that anybody really gives a hang about funding in this debate. But even if they do, universities constantly disclaim the idea that their financial support of student organizations transforms student speech into university speech. Above that, in light of Title IX, it seems wholly risible to claim that the state cannot compel an educational institution to spend money for state-specified purposes regardless of the school's desire to serve those same purposes.

The much apter analogy is that the university is serving in this case as a forum. It permits students to meet in university spaces, to advertise via university communication media, and to access the university's logistical apparatus. Maybe there is a compelling body of case law that prevents the state from compelling private fora from discriminating on  association grounds. But that body is not headed by Boy Scouts. If this is the best the Attorney General can do, it is not an office this State needs.

Public Riparian Easements in Tennessee

"While the beds of all streams not navigable in the legal sense belong to the riparian proprietors and are private property, yet if in its natural state the volume of a stream, whether ordinary or when swollen by rains at certain periods of the year occurring with reasonable certainty, is such that the stream can be used profitably for commercial purposes in the transportation of the products of the forest, mines, tillage of the soil, or other articles of commerce, the public has an easement of highway therein, and this easement cannot be unreasonably obstructed by the riparian proprietors."

Miller v. State, 137 S.W. 760, 762 (Tenn. 1911)

Holes in the Limitations Period

Be careful, when mustering old authorities regarding limitations periods: they were retroactively tolled during the late unpleasantness.

"[A]t all events, possession has been adverse since the date of the deed, as set forth in the answer, eleventh August, 1855, and more than 20 years have elapsed since then to the date of filing this bill, excluding time from sixth May, 1861, to first January, 1867."

Burns v. Headrick, 85 Tenn. 102, 2 S.W. 259, 261 (1886).

Docket Numbers

Docket numbers in Tennessee's appellate courts are an absurdity. Something must be done about them. Their excessive length must be a burden on clerks, and they render citation to unpublished cases perversely cumbersome.

Take this docket number: M2008-02369-COA-R3-CV. Let's look at its elements:

1. A letter, "M," standing for the Middle Division. An interesting fact as a historical matter, but 1) entirely irrelevant, because the entire Court of Appeals has statewide jurisdiction, the divisions being strictly administrative and 2) already discernible from the notation in the style that the case is on appeal from the 20th judicial district. The M can be omitted.
2. All four digits of the year of filing. I know we had difficult with the whole Y2K thing, or at least thought we would. But we know it's the twenty-first century, and by the time we get to another one, the courts will have had to change computers again. Drop two digits.
3. The number of the filing. This is the only element that actually needs to stay the same.
4. Three letters telling us that this is in the Court of Appeals. This can be reduced. Tennessee has three appellate courts: Appeals, Criminal Appeals, and Supreme. We can get by with one letter: A (Appeals), C (Criminal), or S (Supreme).
   
5. R3 --- I'm not actually sure what this means. It can't be that important.
6. Two letters duplicating information we already have: "CV." The Supreme Court needs to be able to sort cases into "civil" and "criminal" categories. The other appellate courts do not, because they by definition only hear one type. Drop these letters from everything except the Supreme Court's docket numbers.

Thus, we can actually have a docket number like this: 08-02369-A. Better still if we move some elements and get A08-02369. That almost approaches federal elegance. Much better.

You Must Cut Down the Largest Shrubbery in the Neighborhood

. . . with an injunction: Granberry v. Jones, 188 Tenn. 51 (1949). Unfortunately for the complainant, injunctions are not much more useful against shrubs than herrings against trees (but the court does provide a nice primer on the law of nuisance and hedges: "‘it has been held that no landowner has a cause of action from the mere fact that the branches of an innoxious tree, belonging to an adjoining land owner, overhang his premises, his right to cut off the overhanging branches being considered a sufficient remedy").

Well I'll Be

I'm gobsmacked: the Tennessee Supreme Court issued a cogent and well-reasoned opinion on the separation of powers:

Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995) (discussing appropriate role of administrative agencies in determining constitutional questions).

Of course, it was fifteen years ago.

Terrible Journalism

Terrible journalism is easy to come by, especially in "flagrant ignorance about religion" flavor. This piece, however, demonstrates a more subtle failure. I know nothing after reading the article that I didn't already know from the headline. Why do these windows violate the zoning restrictions? I certainly don't know. Do the zoning regulations prohibit tenants from opening the existing windows? Why can't the Margaritaville install windows that look exactly like the original windows but that open wider and more easily? Or do the zoning regulations simply prohibit storefronts that are only partially enclosed (in which case what windows are installed is entirely beside the point: the practice of opening them alone is offensive)?

But the article doesn't say any of that. It creates further uncertainty, rather than educating: poor writing on any level.