Session June 2, 2016,  Heard at Lipscomb
by Permission from the Court of Appeals Chancery Court for
Davidson County No. 14-884-III Ellen H. Lyle, Chancellor
petition for writ of certiorari of Reginald Dion Hughes
("petitioner") to the chancery court from the
Tennessee Board of Probation and Parole's denial of
parole was dismissed pursuant Tennessee Code Annotated
section 41-21-812 following the discovery that petitioner
still owed $258.58 from prior cases. Petitioner appealed the
chancery court's decision, but the Court of Appeals also
dismissed the appeal pursuant to Tennessee Code Annotated
section 41-21-812. Hughes v. Tenn. Bd. Prob. and
Parole, No. M2015-00722-COA-R3-CV (Tenn. Ct. App. July
1, 2015) (order dismissing appeal), perm. app.
granted (Tenn. Feb. 2, 2016). Petitioner then requested
permission to appeal to this court, alleging that section
41-21-812 was unconstitutional. We granted petitioner's
request to review this case and to determine "[w]hether
Tennessee Code Annotated section 41-21-812(a) is
constitutional as applied to this case." After reviewing
the record, the parties' arguments, and the applicable
law, we affirm the judgment of the Court of Appeals and
dismiss petitioner's appeal.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Appeals Affirmed, Case Dismissed
H. Veile,  Franklin, Tennessee, for the
petitioner, Reginald D. Hughes.
Herbert H. Slatery III, Attorney General and Reporter;
Andrée Sophia Blumstein, Solicitor General; Pamela S.
Lorch, Senior Counsel; Michael C. Polovich, Assistant
Attorney General (on appeal); Lee Pope, Assistant Attorney
General (in chancery court), for the appellee, Tennessee
Board of Probation and Parole.
A. Page, J., delivered the opinion of the court, in which
Jeffrey S. Bivins, C.J., and Holly Kirby, J., joined.
Cornelia A. Clark and Sharon G. Lee, JJ., filed separate
A. PAGE, JUSTICE
Facts and Procedural History
1987, petitioner was convicted of two counts of second-degree
murder and received a thirty-year sentence on each count, to
be served consecutively, for an effective sentence of sixty
years. His convictions and sentences were upheld on direct
appeal. State v. Hughes, No. 96, 1988 WL 132698, at
*3 (Tenn. Crim. App. Dec. 14, 1988). Petitioner later
unsuccessfully sought post-conviction relief. Hughes v.
State, No. 02C01-9201-CR-00005, 1992 WL 368651, at *3
(Tenn. Crim. App. Dec. 16, 1992). Petitioner first became
eligible for parole on June 20, 2003, but the Tennessee Board
of Probation and Parole denied parole after a hearing.
Hughes v. Tenn. Bd. of Parole, No.
W2005-00838-COA-R3-CV, 2005 WL 3479632, at *1 (Tenn. Ct. App.
Dec. 20, 2005). He again became eligible for parole on August
22, 2005, but the Tennessee Board of Probation and Parole
denied parole after a hearing. Petitioner also filed three
petitions for writ of habeas corpus, all of which were
denied. Hughes v. Barbee, No. W2012-01767-CCA-R3-HC,
2013 WL 3818108, at *1 (Tenn. Crim. App. July 19, 2013);
Hughes v. Parker, No. W2007-02022-CCA-R3-HC, 2008 WL
1722454, at *1 (Tenn. Crim. App. Apr. 14, 2008); Hughes
v. Mills, No. W2003-02486-CCA-R3-HC, 2004 WL 547010, at
*1 (Tenn. Crim. App. Mar. 19, 2004).
current appeal arose from the Tennessee Board of Probation
and Parole's third denial of parole. In 2011, petitioner
again became eligible for parole, but he was denied parole
after a hearing on August 18, 2011. Petitioner appealed the
denial to the Tennessee Board of Probation and Parole but was
denied relief. He then filed a petition for common law writ
of certiorari in the Lauderdale County Chancery Court, which
was later transferred to the Davidson County Chancery Court.
On January 20, 2015, the Tennessee Board of Probation and
Parole filed a motion to dismiss pursuant to Tennessee Code
Annotated section 41-21-812,  asserting that petitioner's
claim should be dismissed because he had "outstanding
unpaid costs from prior lawsuits." The State, relying on
an affidavit from the Clerk and Master of the Lauderdale
County Chancery Court, asserted that petitioner owed court
costs of $49.50 from a prior divorce case in which he was the
plaintiff and $209.35 from his prior case against the
Tennessee Board of Probation and Parole. The chancery court
granted the State's motion on March 16, 2015, because
petitioner had a total of $258.85 in unpaid court costs from
the two prior lawsuits.Petitioner appealed the chancery
court's decision, but the Court of Appeals also dismissed
the appeal pursuant to Tennessee Code Annotated section
41-21-812. Hughes v. Tenn. Bd. Prob. & Parole,
No. M2015-00722-COA-R3-CV (Tenn. Ct. App. July 1, 2015)
(order dismissing appeal), perm. app. granted (Tenn.
Feb. 2, 2016). We now consider petitioner's appeal.
raises one core argument under several provisions of the
United States Constitution and the Tennessee Constitution,
all of which address his right of access to the courts.
Petitioner asserts that the trial court's application of
Tennessee Code Annotated section 41-21-812 and dismissal of
his case due to an outstanding fee of $258.85 violated his
right of access to the courts pursuant to the Due Process and
Equal Protection provisions of the United States
Constitution and the Equal Protection, Due Process, and
Open Courts provisions of the Tennessee
Constitution. Petitioner specifically asserts an
as-applied constitutional challenge. "In contrast to a
facial challenge, which involves the constitutionality of the
statute as written, '[a]n 'as applied' challenge
to the constitutionality of a statute is evaluated
considering how it operates in practice against the
particular litigant and under the facts of the instant case,
not hypothetical facts in other situations.'"
State v. Crank, 468 S.W.3d 15, 24 n.5 (Tenn. 2015)
(quoting City of Memphis v. Hargett, 414 S.W.3d 88,
107 (Tenn. 2013)). Therefore, our analysis is limited to how
the application of Tennessee Code Annotated section 41-21-812
affects the petitioner specifically.
analyzing the constitutionality of a statute, we review the
issue de novo with no presumption of correctness to the lower
court's legal conclusions. Waters v. Farr, 291
S.W.3d 873, 882 (Tenn. 2009) (citing Colonial Pipeline
Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008)). We are
"charged with upholding the constitutionality of
statutes where possible, " State v. Pickett,
211 S.W.3d 696, 700 (Tenn. 2007), and we always "begin
with the presumption that an act of the General Assembly is
constitutional, " Gallaher v. Elam, 104 S.W.3d
455, 459 (Tenn. 2003) (citing State v. Robinson, 29
S.W.3d 476, 479 (Tenn. 2000); Riggs v. Burson, 941
S.W.2d 44, 51 (Tenn. 1997)). "In a civil case heard
without a jury, the trial court's findings of fact are
reviewed de novo, accompanied by a presumption of
correctness, unless the evidence preponderates
otherwise." Hood v. Jenkins, 432 S.W.3d 814,
822 (Tenn. 2013) (citations omitted).
Code Annotated section 41-21-812 states:
(a) Except as provided by subsection (b), on notice of
assessment of any fees, taxes, costs and expenses under this
part, a clerk of a court may not accept for filing another
claim by the same inmate until prior fees, taxes, costs and
other expenses are paid in full.
(b)A court may allow an inmate who has not paid any costs or
expenses assessed against the inmate to file a claim for
injunctive relief seeking to enjoin an act or failure to act
that creates a substantial threat of irreparable injury or
serious physical harm to the inmate.
This section only applies to "a claim brought by an
inmate in general sessions or a trial level court of record
in which an affidavit of inability to pay costs is filed with
the claim by the inmate." Tenn. Code Ann. § 41-21-802.
A claim is defined as "any lawsuit or appeal filed by an
inmate except a petition for post-conviction relief."
Id. § 41-21-801(1). An inmate is defined as
"a person housed in a facility operated by the
department, housed in a county jail or housed in a
correctional facility operated by a private corporation
pursuant to a contract with the state or local
government." Id. § 41-21-801(4).
The Sixth Circuit has recently addressed the
constitutionality of section 41-21-812 in Clifton v.
Carpenter, 775 F.3d 760, 762 (6th Cir. 2014), and
concluded that the statute was unconstitutional as applied in
that case. Id. at 768. In Clifton, the
petitioner was a parolee whose parole was revoked by the
parole board. Id. at 762. When the petitioner
attempted to appeal this decision to the chancery court and
the Tennessee Court of Appeals, the clerk's offices
refused to file the petition because he owed $1, 449.15 in
prior court costs. Id. Recognizing that the
petitioner had a liberty interest at stake in the revocation
of parole and asserting that "[a]ccess to the courts
cannot be contingent on wealth, " the Sixth Circuit
found section 41-21-812 unconstitutional as applied.
Id. at 767-68. While informative, Clifton
is not determinative of the case at bar. As the court in
Clifton recognized, the petitioner in that case had
a liberty interest at stake in the revocation of his parole.
However, in this case, petitioner was already imprisoned and
was requesting early release. "There is a crucial
distinction between being deprived of a liberty one has, as
in parole, and being denied a conditional liberty that one
desires." Greenholtz v. Inmates of Neb. Penal &
Corr. Complex, 442 U.S. 1, 9 (1979). While the
revocation of parole involves the removal of a liberty
interest, "[t]here is no constitutional or inherent
right of a convicted person to be conditionally released
before the expiration of a valid sentence." Id.
at 7. Therefore, because different interests are at stake in
this case than in Clifton, we conclude that
Clifton is not controlling and proceed with a
comprehensive analysis of petitioner's interests and
rights pursuant to the United States and Tennessee
Right of Access to Courts
right of access to courts was first recognized in Ex
parte Hull, 312 U.S. 546 (1941), when the Court struck
down a provision that prohibited prisoners from filing habeas
corpus petitions unless the petition was found to be
"properly drawn" by an investigator from the parole
board. Id. at 549. Since Hull, the United
States Supreme Court has recognized that this right stems
from multiple provisions of the United States Constitution.
While some Courts have relied on the Privileges and
Immunities Clause, U.S. Const. art. IV, § 2, cl. 1;
Chambers v. Baltimore & Ohio R.R. Co., 207 U.S.
142, 154 (1907) (Harlan, J., dissenting), and the First
Amendment's right of petition, U.S. Const. amend. I;
California Motor Transp. Co. v. Trucking Unlimited,
404 U.S. 508, 510 (1972), the analysis utilized in most
access-to-courts cases appears to be grounded in the Due
Process and Equal Protection provisions of the Fourteenth
Amendment, U.S. Const. amend. XIV, § 1; M.L.B. v.
S.L.J., 519 U.S. 102, 120 (1996) (citing multiple equal
protection and due process cases). Therefore, we will address
petitioner's assertions utilizing due process and equal
due process and equal protection analyses merit separate
consideration. However, the United States Supreme Court has
stated that in the right-of-access-to-courts analysis, the
equal protection and due process principles converge.
M.L.B., 519 U.S. at 120 (citing Bearden v.
Georgia, 461 U.S. 660, 665 (1983)).
The equal protection concern relates to the legitimacy of
fencing out would-be appellants based solely on their
inability to pay core costs. The due process concern homes in
on the essential fairness of the state-ordered proceedings
anterior to adverse state action. A "precise
rationale" has not been composed . . . because cases of
this order "cannot be resolved by resort to easy slogans
or pigeonhole analysis, " . . . .
Id. (citations omitted); see also Christopher v.
Harbury, 536 U.S. 403, 415 n.12 (2002) (citing the many
cases and constitutional provisions on which the Court has
based the right of access to courts); Lewis v.
Casey, 518 U.S. 343, 367 (1996) (Thomas, J., concurring)
(noting the Court's "inability . . . to agree upon
the constitutional source of the supposed right" of
access to the courts); Bearden, 461 U.S. at 665-67.
As such, we will address both the due process and equal
protection concerns simultaneously.
the United States and Tennessee Constitutions protect the
right to due process of law. Section 1 of the Fourteenth
Amendment to the United States Constitution provides,
"No State shall make or enforce any law which . . .
deprive[s] any person of life, liberty, or property, without
due process of law . . . ." Article I, section 8 of the
Tennessee Constitution states, "[N]o man shall be taken
or imprisoned, or disseized of his freehold, liberties or
privileges, or outlawed, or exiled, or in any manner
destroyed or deprived of his life, liberty or property, but
by the judgment of his peers, or the law of the land."
We have determined that this provision of the Tennessee
Constitution is "synonymous" with the Due Process
Clause of the Fourteenth Amendment. Gallaher, 104
S.W.3d at 463 (citing Riggs, 941 S.W.2d at 51).
the equal protection of the laws is also guaranteed by both
the United States and Tennessee Constitutions. Section 1 of
the Fourteenth Amendment to the United States Constitution
provides, "No State shall make or enforce any law which
shall . . . deny to any person within its jurisdiction the
equal protection of the laws." There are also two
provisions of the Tennessee Constitution that encompass the
equal protection guarantee. Article I, section 8, which is
set out above, and Article XI, section 8, which provides:
The Legislature shall have no power to suspend any general
law for the benefit of any particular individual, nor to pass
any law for the benefit of individuals inconsistent with the
general laws of the land; nor to pass any law granting to any
individual or individuals, rights, privileges, immunitie[s],
or exemptions other than such as may be, by the same law
extended to any member of the community, who may be able to
bring himself within the provisions of such law.
Court has concluded that Article I, section 8 and Article XI,
section 8 of the Tennessee Constitution provide
"essentially the same protection" as the Equal
Protection Clause of the United States Constitution.
Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139,
152 (Tenn. 1993). Moreover, when analyzing the merit of an
equal protection challenge, this Court has utilized the three
levels of scrutiny―strict scrutiny, heightened
scrutiny, and reduced scrutiny, which applies a rational
basis test―that are employed by the United States
Supreme Court depending on the right that is asserted.
State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994)
(citations omitted). "Strict scrutiny applies when the
classification at issue: (1) operates to the peculiar
disadvantage of a suspect class; or (2) interferes with the
exercise of a fundamental right." Gallaher, 104
S.W.3d at 460 (citation omitted). Heightened scrutiny applies
to cases of state sponsored gender discrimination. See
United States v. Virginia, 518 U.S. 515, 533 (1996)
(quoting Miss. Univ. for Women v. Hogan, 458 U.S.
718, 724 (1982)); Mitchell v. Mitchell, 594 S.W.2d
699, 701 (Tenn. 1980). Reduced scrutiny, applying a rational
basis test, applies to all other equal protection inquiries
and examines "whether the classifications have a
reasonable relationship to a legitimate state interest."
Tenn. Small Sch. Sys., 851 S.W.2d at 153 (quoting
Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988)).
lines or categories of cases have emerged in the due process
and equal protection areas that define the parameters of a
person's right of access to courts. Each set of cases
addresses the issue of when and under what circumstances a
state can place limits on an indigent person's right of
access to the courts. For ease of reference, we will refer to
the two diverging sets of cases as the
Griffin cases and the
first line of cases, while broad in remedy, has limited
applicability. The seminal case is Griffin v.
Illinois, 351 U.S. 12 (1956). Griffin addressed
the issue of requiring transcript fees for indigent prisoners
who were not charged with a capital offense. Id.
at 13-16. The Court stated that "[b]oth equal protection
and due process emphasize the central aim of our entire
judicial system-all people charged with [a] crime must, so
far as the law is concerned, stand on an equality before the
bar of justice in every American court." Id. at
17 (citations and internal quotation marks omitted). The
Court concluded that when a state made appellate review
available, it could not then deny indigent persons that
review simply because of their inability to pay the costs in
advance. Id. at 18. "Griffin does not
represent a balance between the needs of the accused and the
interests of society; its principle is a flat prohibition
against pricing indigent defendants out of as effective an
appeal as would be available to others able to pay their own
way." Mayer v. Chicago, 404 U.S. 189, 196-97
Court later extended the principles espoused in
Griffin to transcript fees in cases involving
violations of a city ordinance, see Mayer v.
Chicago, 404 U.S. 189, 191, 193-96 (1971); a $20 filing
fee required by the Supreme Court of Ohio in a first tier
criminal appeal, see Burns v. Ohio, 360 U.S. 252,
255-58 (1959); a $4 filing fee in a habeas corpus proceeding,
see Smith v. Bennett, 365 U.S. 708, 708 n.1, 714
(1961); the right to counsel in a first tier appeal, see
Douglas v. California, 372 U.S. 353, 355-58 (1963); and
the ability of inmates to assist one another in preparing
habeas corpus petitions, see Johnson v. Avery, 393
U.S. 483, 486, 490 (1969), which was later extended to the
preparation of civil rights actions, see Wolff v.
McDonnell, 418 U.S. 539, 579-80 (1974). However, the
Court determined that indigent defendants do not have a right
to appointed counsel for discretionary appeals. Ross v.
Moffitt, 417 U.S. 600, 621 (1974).
urges us to apply the Griffin cases and conclude
that Tennessee Code Annotated section 41-21-812(a) is
unconstitutional as applied because in Bounds v.
Smith, the United States Supreme Court, relying on the
Griffin cases, stated that the right of access to
courts was a fundamental right. 430 U.S. 817, 828 (1977).
However, the United States Supreme Court in Lewis
warned against extending the principles of the
Griffin/Bounds cases to the generality of civil
cases. Lewis, 518 U.S. at 354-55. The court limited
the language of Bounds and explained that
"several statements in Bounds went beyond the
right of access recognized in the earlier cases on which it
relied, which was a right to bring to court a grievance that
the inmate wished to present." Id. at 354;
see also Bounds, 430 U.S. at 840 (Rehnquist, J.,
dissenting) (stating that the "'fundamental
constitutional right of access to the courts'" that
the majority announced in Bounds was "created
virtually out of whole cloth with little or no reference to
the Constitution from which it is supposed to be
derived"). The Court further explained that the
Bounds access-to-court cases were limited to direct
appeals from convictions, collateral appeals related to a
conviction, and civil rights actions. Id. at 354-55.
The court concluded:
In other words, Bounds does not guarantee inmates
the wherewithal to transform themselves into litigating
engines capable of filing everything from shareholder
derivative actions to slip-and-fall claims. The tools it
requires to be provided are those that the inmates need in
order to attack their sentences, directly or collaterally,
and in order to challenge the conditions of their
confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.
Lewis, 518 U.S. at 355. Therefore, petitioner's
reliance on Bounds is misplaced. Petitioner's
claim does not fit into one of the narrow categories of
cases―direct appeals from convictions, collateral
appeals related to a conviction, and civil rights
actions―to which Lewis limited the
Griffin/Bounds line of cases; therefore, he is not
entitled to relief on this basis.
contrast to the Griffin cases, there is a separate
set of civil cases in which the United States Supreme Court
has relied on a more traditional equal protection and due
process analysis and recognized that parties have a right to
access the courts irrespective of their ability to pay. The
watershed case is Boddie v. Connecticut, 401 U.S.
371 (1971). In Boddie, two welfare recipients could
not afford to pay the court fees and costs of service of
process to obtain a divorce. Id. at 372-73. Relying
on due process principles, the Court concluded that a state
could not deny a married couple the ability to divorce based
on their inability to pay court costs. Id. at 374.
Noting that the only way to obtain a divorce was through the
judicial system, the Court explained that "due process
requires, at a minimum, that absent a countervailing state
interest of overriding significance, persons forced to settle
their claims of right and duty through the judicial process
must be given a meaningful opportunity to be heard."
Id. at 377. Crucial to the Court's holding was
the fundamental interest of marriage. Id. at 374;
see M.L.B., 519 U.S. at 113. In announcing the
decision of the Court, the majority stated:
We do not decide that access for all individuals to the
courts is a right that is, in all circumstances, guaranteed
by the Due Process Clause of the Fourteenth Amendment so that
its exercise may not be placed beyond the reach of any
individual, for, as we have already noted, in the case before
us this right is the exclusive precondition to the adjustment
of a fundamental human relationship.
Boddie, 401 U.S. at 382-83.
contrast, the Court in United States v. Kras, 409
U.S. 434 (1973), concluded that unlike in Boddie,
where a fundamental interest in marriage was implicated, the
petitioner in Kras, who was unable to pay the fees
associated with a discharge of debt in bankruptcy, did not
have a fundamental interest in the availability of a
discharge of debt. Id. at 445-46. The Court also
noted that "[i]n contrast with divorce, bankruptcy is
not the only method available to a debtor for the adjustment
of his legal relationship with his creditors. The utter
exclusiveness of court access and court remedy, as has been
noted, was a potent factor in Boddie."
Id. at 445. The bankruptcy fee requirement was also
not a violation of equal protection because rather than
bankruptcy being related to a fundamental interest in
constitutional jurisprudence, like marriage, it was a
regulation on economics and social welfare that is analyzed
under a rational basis standard. Id. at 446. The
Court concluded that charging an indigent litigant bankruptcy
fees when attempting to discharge debt in bankruptcy
proceedings satisfied the rational basis standard.
Id. at 447-49.
in Ortwein v. Schwab, 410 U.S. 656 (1973), welfare
recipients were unable to pay a $25 filing fee in the
appellate courts to challenge an agency determination
reducing welfare benefits. Id. at 656-58. Equating
the case to Kras, the Court concluded that the
interest in welfare benefits "has far less
constitutional significance than the interest of the
Boddie appellants." Id. at 659. The
Court also concluded that there was no equal protection
violation because the regulation was in the area of economics
and social welfare, which is analyzed under a rational basis
justification, and that there was a rational basis for the
fee. Id. at 660. Ortwein made clear that
the United States Supreme Court "has not extended
Griffin to the broad array of civil cases. But
tellingly, the Court has consistently set apart from the mine
run of cases those involving state controls or intrusions on
family relationships." M.L.B., 519 U.S. at 116;
see also Dungan v. Dungan, 579 S.W.2d 183, 185
(Tenn. 1979) (concluding that the state was not required to
pay for newspaper publications for indigent plaintiffs in
divorce cases but that the clerk could mail a copy of the
complaint and summons to the defendant's last known
address and post a copy of the summons in three public places
within the county).
contrast, in M.L.B., the Court struck down
Mississippi's requirement that a party pay in advance
record preparation fees for an appeal following the
termination of the party's parental rights to her two
minor children. Id. at 106-07. The Court compared
Mayer, a case applying the Griffin line of
cases to a transcript fees requirement in cases involving
violations of a city ordinance, and Ortwein, a case
applying the Boddie line to a filing fee requirement
for welfare recipients who were seeking to challenge a
reduction of their welfare benefits, and concluded that
because of the nature of the proceeding―terminating a
person's parental rights―that the case was more
analogous to Mayer. Id. at 119-24. In
making this conclusion, the Court stated that M.L.B. was
endeavoring to defend against the State's destruction of
her family bonds, and to resist the brand associated with a
parental unfitness adjudication. Like a defendant resisting
criminal conviction, she seeks to be spared from the
State's devastatingly adverse action. That is the very
reason we have paired her case with Mayer, not with
Ortwein or Kras . . . .
Id. at 125. The court further elucidated:
In aligning M. L. B.'s case and Mayer-parental
status termination decrees and criminal convictions that
carry no jail time-for appeal access purposes, we do not
question the general rule, stated in Ortwein, that
fee requirements ordinarily are examined only for
rationality. See supra, at 563. The State's need
for revenue to offset costs, in the mine run of cases,
satisfies the rationality requirement, see Ortwein,
410 U.S., at 660, 93 S.Ct., at 1174-1175; States are not
forced by the Constitution to adjust all tolls to account for