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Hughes v. Tennessee Board of Probation and Parole

Supreme Court of Tennessee, Nashville

March 23, 2017

REGINALD DION HUGHES
v.
TENNESSEE BOARD OF PROBATION AND PAROLE

          Session June 2, 2016, [1] Heard at Lipscomb University

         Appeal by Permission from the Court of Appeals Chancery Court for Davidson County No. 14-884-III Ellen H. Lyle, Chancellor

         The 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.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed, Case Dismissed

          David H. Veile, [2] 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.

          Roger 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 dissenting opinions.

          OPINION

          ROGER A. PAGE, JUSTICE

         I. Facts and Procedural History

         In 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).

         The 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, [3] 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.[4]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.

         II. Analysis

         Petitioner 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[5] and the Equal Protection, Due Process, and Open Courts provisions of the Tennessee Constitution.[6] 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.

         When 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).

         Tennessee 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."[7] 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.[8] 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 Constitutions.

         A. Right of Access to Courts

         The 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 protection principles.[9]

         Generally, 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.

         Both 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).

         Similarly, 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.

         This 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)).

         Two 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[10] cases and the Boddie[11] cases.

         1. The Griffin Cases

         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.[12] 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 (1971).

         The 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).

         Petitioner 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.

         2. The Boddie Cases

         In 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.

         In 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.

         Similarly, 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).

         In 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 ...

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