                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                            April 4, 2002 Session

                  PHIL IP WO RKM AN v. D ONA L CA MPB ELL , ET AL.

                  A Direct Ap peal from th e Chan cery Cour t for Davidso n Coun ty
                    No. 01-966-III     The Honorable Ellen Hobbs Lyle, Judge




                          No. M2001-01445-COA-R3-CV - Filed May 7, 2002



        This case involves the extent to which the State of Tennessee may regulate a condemned
prisoner’s right to be attended by his personal minister in the hours leading up to his execution.
Prisoner sued the Commissioner of the Tennessee Department of Corrections and the prison warden
based upon the warde n’s denial of prisoner’s request that his personal religious adviso r be physically
present at all times leading up to his execution. The chancery court ordered the issuance of a writ
of mandamus requiring the prison warden to allow the prisoner’s minister to attend the prisoner at
all times until the prisoner enters the death chamber. We reverse and remand.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and
                                       Remand ed

W. F RANK C RAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. H IGHERS, J. and DAVID R. F ARMER ,
J., joined.

Paul G. Summers, Attorney General, Michael E. Moore, Solicitor General, Mark A. Hudson, Senior Counsel, For Defendants-
Appellants, Donal Campbell, et al

Louis W. Oliver, III, Hendersonville, For Plaintiff-Appellee, Philip Workman

                                                       OPINION


       Before his scheduled execution on March 30, 2001 at 1:00 a.m.1, Plaintiff/Appellee Philip
Workman (“Mr. Workm an”) requested that his perso nal minister, Reve rend Joseph B . Ingle
(“Reverend Ingle”), be permitted to be physically present with him at all times leading up to his
execution. Ricky Bell (“Warden Bell” or “Ward en”), the prison warden, refused to allow Reverend




         1
           The Tennessee Supreme Court issued a stay of execution shortly before Mr. Workman’s execution was to be
carried ou t.
Ingle to remain with M r. Workm an after 10:0 0 p.m., on March 2 9, 2001, citing security concerns
as the reason for his denial of M r. Workm an’s request.

       On March 28, 2001, Mr. Workm an filed suit against Donal Campbell, Comm issioner of the
Tennessee Departmen t of Corrections (“TDOC”) and W arden Bell. In his Complaint, Mr. Workm an
alleged that the Warden’s denial constituted “unusual and unreasonable punishment” under the
United States Constitution, a denial of his religious freedom, and that the denial was “arbitrary and
unfounded in law or fact.” A hearing was held on March 29, 2000, and following the hearing, the
Chancellor entered an Order granting th e relief sought. The Ord er provides in part:

                       After considering the papers filed in support of and in
               opposition to the application, and argu ment of coun sel, the Court
               holds that Tennessee Code Annotated section 40-23-116(a)(3)
               recognizes the right of a condemned perso n to be attended by his
               personal minister until the time the condemned person enters the
               death chamber. The statute makes it the duty of the Wa rden to afford
               the condem ned person this right. The policy being enforced by
               Warden Bell violates that right. Accordingly, the Court under the
               legal authority of a writ of mandamus, commands Warden Ricky Bell
               and the Tennessee Department of Correction to allow Joe Ingle, the
               inmate’s minister of the gospel who has been preparing the inmate for
               death, to remain with the inmate until the inmate enters the d eath
               chamber. The Court’s reasoning is as follows.

                       Tennessee Code Annotated section 40-23-116 is the
               Legislature’s commandm ent on how an execution shall proceed. The
               statute provides the following:

               (1)     In the first instance, the sheriff transports the condemned
                       person from the county to the state penitentiary wh ere the
                       death chamber is located.
               (2)     The Warden is charged by the Legislature with carrying out
                       the death sentence in a sec luded and private d eath chambe r.
               (3)     The Legislature has particularly designated limited persons
                       who may witness the execution.
               (4)     One of those witnesses is a priest or minister of the gospel
                       “who has been preparing the cond emned perso n for death
                       [emph asis added ].”

                      By using the particular wording the minister “who has been
               preparing the condem ned person for death ,” the Legislature
               contemplated that the condemned person would be attended in his

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              final hours by a minister who has a personal relationship with the
              condemned person and who has been preparing the person for the
              execution. The only restriction the Legislature placed on the personal
              minister’s attendance of the condemned person is when the
              condemned person enters the death chamber (“the Warden of the state
              penitentiary in which the death chamber is located shall cause such
              death sentence to be carried out within an enclosure. . . in strict
              seclusion and privacy [emphasis added].” Tenn. Code Ann. § 40-23-
              116(a).

                       The Court, the refore, conclu des, first, that Tennessee Code
              Annotated section 40-23-116(a)(3) accords the condemned person a
              right to be attended not just by a minister on the prison staff who has
              no relationship with the condemned person but with a “minister of the
              gospel who ha s been prep aring the co ndem ned perso n for death.”
              Secondly, the only restriction the statute places on that right of
              attendance is that the condemned person shall be alone in the d eath
              chamber. Thus, Warden Bell’s policy of requiring the personal
              minister to vacate the death cell at 10:00 p.m. infringes on the right
              accorded the condemned person by the Legislature to have a personal
              minister in attendance.
                       Additionally, of some note is tha t the State has admitted that
              the State performs no preparation no con ducts any activity w ith
              respect to the condemned person from 10:00 p.m. through 12:00 a.m.
              The State has also admitted that the Reverend Joe Ingle has never
              threatened or breached security in his many prison visits.

                      It is therefore ORD ERED that the Court, pursuant to a writ of
              mandamu s, commands the Tennessee Department of Correction and
              Warden Ricky Bell to carry out the dictate of the Tennessee
              Legislature that a condemned person be permitted to prepare for death
              with the attendance of his perso nal minister, in this case the Reverend
              Joe Ingle, and that the Tenn essee Department of Correction and
              Warden Ricky Bell are enjoined from ejecting Reverend Joe Ingle
              from attendance until such time as the condemned person enters the
              death chamber. Pu rsuant to Tennessee Code Annotated section 40-
              23-116 the Reverend Jo e Ingle is not permitted in the de ath chamber.

On April 25, 2001, Defendants filed a Motion to Reconsider or Alternatively to Alter or Amend the
Judgment, which the Chancellor denied on June 6, 2001.




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        Defendants Campbell and Bell (“Defendants”) have appealed, and present the following three
issues for review, as stated in their brief: (1) Whether the chancery court erred in issuing a writ of
mandamus where T.C.A. § 40-23-116(a)(3) does not impose a nondiscretionary, ministerial duty;
(2) Whether the chancery court erred in finding that T.C.A. § 40-23-116(a)(3) gives a condemned
inmate the right to be attended by his personal minister until the time the inmate enters the death
chamber; and (3) Whether the decision to restrict religious visits with the condemned inmate after
10:00 p .m. prior to th e executio n is not arbitra ry or otherw ise impro per.

        We first address the second issue, whether the statute in question, T.C.A. § 40-23-116,
provides Mr. Workm an the right to have his personal minister attend him at all times leading up to
his sched uled exec ution.

       T.C.A . § 40- 23-1 16 pr ovid es, in i ts enti rety:

               § 40-23-116. Capital punishment; procedure; witnesses

                       (a) In all cases in which the sentence of death has been passed
               upon any person by the courts of this state, it is the duty of the she riff
               of the county in which such sentence of death has been passed to
               remove the person so senten ced to death from such county to the state
               penitentiary in which th e death cha mber is loca ted, within a
               reasonable time before the date fixed for the executio n of the death
               sentence in the judgment and mandate of the court pronouncing the
               same. On the date fixed for such execution in the judgment and
               mandate of the court, the warden of the state penitentiary in which the
               death chamber is located shall cause such death sentence to be carried
               out within an enclosure to be prepared for that purpose in strict
               seclusion and privac y. The only witnesses entitled to be present at
               the carrying out of such death sentence are:

                        (1) The warden of the state penitentiary or the warden's duly
               auth orize d dep uty;
                        (2) The sheriff of the county in which the crime was
               committed;
                        (3) A priest or minister of the gospel who has been preparing
               the condemned person for death;
                        (4) The prison physician;
                        (5) Such attendants chosen and selected by the warden of the
               state penitentiary as may be necessary to properly carry out the
               execution of the death sentence;
                        (6) A total of seven (7) members of the print, radio and
               television news media selected in accordance with the rules and
               regulations promulgate d by the depa rtment of corre ction. Those news

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media members allowed to attend any execution of a sentence of
death shall make available cove rage of such execution to other news
media members not selected to attend; and
        (7) Immediate family members of the victim who are eighteen
(18) years of age or older. Such immediate family mem bers shall
include the spouse, child (by birth or adoption), stepchild, stepp arent,
parent, grandparent or sibling of the victim; prov ided, that members
of the family of the condemned prisoner may be present and witness
the execution.
        (8) One (1) defense counsel chosen by the condemned person;
and
        (9) The attorney general and reporter, or the attorney general
and reporter's designee.

        (b) No other person o r persons than those m entioned in
subsection (a) are allowed or permitted to be present at the carrying
out of the death sentence. It is a Class C misdemeanor for the warden
of the state penitentiary to permit any other person or persons than
those provided for in subsection (a) to be present at such legal
execution.

        (c)(1) Photographic or recording equipment shall not be
permitted at the execution site until the execution is completed, the
body is removed, and the site has been restored to an orderly
condition. However, the physical arrangement of the execution site
shall not be disturbed.

      (2) A violation of subdivision (c)(1) is a Class A
misdemeano r.

         (3) The department shall promulgate rules that establish
criteria for the selection of news media representatives to attend an
execution of a death sentence in accord ance with the Uniform
Administrative Proce dure s Ac t, com pile d in t itle 4 , cha pter 5. In
promulga ting such rules, the department shall solicit
recommendations from the Tennessee Press Association, the
Tennessee Associated Press Managing Editors, and the Tennessee
Association of Broadcasters. For each execution of a death sentence,
applications for attendance shall be accep ted by the department.
When the number of application s require, lots to select news med ia
representatives will then be drawn b y the warden of the state
penitentiary at which such death sentence is to be carried out. All



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                  such drawings shall be condu cted in ope n meetings and notice shall
                  be properly given in accordance with § 4-5-203.

                         (d) If the immediate family members of the victim choose to
                  be present at such execu tion, they shall be allowed to wit ness the
                  execution from an area that is separate from the area to which other
                  witnesses are admitted. If facilities are not available to provide
                  immediate family members with a direct view of the execution, the
                  warden of the state penitentiary may broadcast the execution by
                  means of a closed circuit television system to the area in which the
                  immediate family members are located.

T.C.A. § 40-23-116 (Su pp. 2001)(emp hasis added). Con struction of a statute in its application to
the facts of the case is an issue of law, and the appellate standard of review is de novo without any
presumption of correctness given to the trial court’s conclusions of law. The most basic principle
of statutory construction is to ascertain and give effect to the legislative intent without undu ly
restricting or expan ding a statute’s coverage be yond its inten ded scop e. See Allen v. City of
Gatlinburg, 36 S.W.3d 73 (Tenn. Ct. App. 2001). In determining the intent of the legislature, the
court is to examine the natural and ordinary meaning of the language used without a forced or subtle
construction that would limit or extend the meaning of the language. See Penley v. Honda Motor
Co., 31 S.W.3d 181 (Tenn. 2000). “The statutory construction should reflect the meaning of the
statute from the entire context thereof and from the statute’s general purpose.” Wachovia Bank of
N.Carolina, N.A. v. Johnson, 26 S.W.3d 62 1, 624 (Tenn. Ct. Ap p. 2000).

        In the instant case, the trial court construing the statute found that the legislature intended “by
using the particular wording the minister ‘who has been preparing the co ndemned p erson for death’”
that such person would be attended in his final hours by the minister until he en ters the death
chambe r. We disagree with the trial co urt’s interpreta tion.

        The plain language of T.C.A. § 40-23-116 describes only the manner in which priso n officials
must carry out the death sentence and who may be present to witness the execution. In the phrase,
“A priest or minister of the gospel who has been preparing the condemned person for death,” the
words, “who has been preparing the condem ned person for death” describe only which priest or
minister is legally entitled to be present at the prisoner’s execution. Mr. Workman does not cite, nor
are we aware of, other statutory provisions whereby the Tennessee legislature provides a condemned
prisoner a right to be attended by his personal minister until the time of execution.

      Certa inly, the legislature may, as it has in the past, amend the death penalty statute to provide
condemned prisoners with greater statutory rights,2 but that is a matter left solely to the legislature.
We hold that T.C.A. § 40-23-1 16 does not pro vide condem ned prisoners a right to have th eir

         2
          W e note that, in May of 2000, the state legislature amended T.C.A. § 40-23-116 to permit a prisoner to have
his defense counsel present at his execution.

                                                         -6-
personal religious ministers present at all times leading up to their execution, nor does it require a
prison warden to p rovide condem ned prisoners with su ch a right.
        We next address together the first issue concerning the use of mandamus and the third issue
of whether the restrictive religious visit was imp roper. The writ of mandam us is never granted to
control or coe rce the exerc ise of d iscret iona ry pow er by a governme nt official. See State v. Mayor
& Aldermen, 195 S.W.2d 1 1 (1946); White's Creek T pk. Co. v. Marsh all, 61 Tenn . 104 (1872);
Barnhart v. Neisler, 25 Tenn. 493 (1846). The object of a writ of mandamu s is to compel an official
to perform an act which he has a legal duty to perform. See Bradley v. State ex rel. Haggard, 222
Tenn. 53 5, 438 S.W .2d 738 (1 969). In determining whether an act is a "ministerial act" for which
mandamus may lie, courts look to whether the law defines the duties to be performed "with such
precision and certainty as to leave nothing to the ex ercise of discretion or judgment." Lamb v. State,
207 Tenn. 159, 338 S.W.2d 584, 586 (1960)(quoting C.J.S. Mandamus § 63). Where the duty
involves the exercise of discretion or judgement, the act is discretion ary. See id. A discretionary act,
which will not support the issuance of a mandamus to compel performance, is defined as one done
by an official who has lawful autho rity to determine whether or not he will perform the act. See
Bradley v. State ex rel. Haggard, 222 Tenn. 535 , 438 S.W.2d 7 38 (1969).

         Since we have h eld that T.C .A. § 40-23-116 do es not require a prison warden to allow a
condemned prisoner the right to have his personal minister present until he enters the death chamb er,
we must next determine whether W arden Bell acted prop erly in restricting visits by Mr. Workman ’s
minister. Courts will not, by mandamus, disturb the decision and action of public officials vested
in discretionary powers, "except where they act in an arbitrary and oppressive manner, or act beyond
their jurisdiction, or where they refuse to assume a jurisdiction which the law devo lves upo n them."
Peerless Constr. Co. v. Bass, 14 S.W.2d 73 2, 733-34 (Tenn .1929)(citations omitted).

        In this case, the Warden’s discretion comes from Tennessee Department of Corrections
policies regarding death row inmates. Specifically, Policy 506.16.2, Section VI.(C)(2)(b) provides:

                A final visit by the inmate’s personal priest or minister may be
                permitted by the warden immed iately prior to the execution. This
                visit shall take place at the front of the inmate’s cell. This visit shall
                be limited to one (1) hour d uration. The warden shall decide the
                hours the visit will occur.

(emphasis added ). Warden Bell’s affidavit submitted to the trial court states, in part:

                        4.      I have determined tha t a condemned inmate may meet
                with his personal priest or m inister up until 10:00 p.m. prior to the
                execution. The basis for this decision is that the presence of the priest
                or minister in the death watch area presents a security risk. The
                identity of the execution team is kept confidential for the security of
                the institution and for the safety of the staff members and their
                families. Members of the execution team and their families may be


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               subject to retaliation and harassment if their identities became known
               throughout the institution or to the public at large.
                       5.       At appro xima tely 10:00 p.m. members of the
               execution team, including the extraction team and others necessary to
               carry out an execution , begin to arrive at the execution area to be gin
               final preparations for the execution . If the priest or minister is
               allowed to stay with the condemned inmate during this time, he or she
               may learn the identities of the execution team. As members of the
               execution team move abo ut the building making fin al preparations,
               they are in plain view of the priest or minister from the visitation area
               and the death watch area. This creates a security risk by
               compromising the confidentiality of the execution team members’
               identities.

Although the Defendants/Appellants presented no evidence that Reverend Ingle himself posed any
particular secur ity risk, we find nothing in the record to indicate that the Warden acted in “an
arbitrary and oppressive manner” or that he exceeded his discretionary authority under Department
of Corre ction s poli cy in limiting Reverend Ingle’s visit. The Warden’s concern regarding
confidentiality of the execution team finds statutory support in T.C.A. § 10-7-504(h)(1) (Supp.
2001), which p rovides in relevant part:

                       (h)(1) Notwithstanding any other law to the contrary, those
               parts of the record identifying an individual as a person who has been
               or may in the future be directly involved in the process of executing
               a sentence of death shall be treated as confidential and shall not be
               open to public inspection. For the purposes of this section "person"
               includes, but is not limited to, an employee of the state who has
               training related to direct involvem ent in the pro cess of exec uting a
               sentence of death, a contractor or employee of a contractor, or a
               volunteer who has direct involvement in the process of executing a
               sentence of death. Records made confidential by this section include,
               but are not limited to, records related to rem uneration to a person in
               connection with such person's participation in or preparation for the
               execution of a sentence of death.

(emphasis added ).

        Since no legal duty exists which requires a prison warden to allow a condemned prisoner to
be attended by his personal minister until the time of his execution, and the Warden did not
arbitrarily or improperly restrict Reverend Ingle’s access to Mr. Workman, the trial court erred in
issuing the w rit of mandam us. We, therefore, reverse the Order of the cha ncery court and remand
the case to the trial court for such other pro ceedings as may be necessary. Costs o f this appeal are
assessed to the Defend ant/Appellant.


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__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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