                                                                                              08/14/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  January 3, 2018 Session

STATE OF TENNESSEE v. A.B. PRICE, JR. and VICTOR TYRONE SIMS

                   Appeal from the Circuit Court for Henry County
                        No. 15680 Donald E. Parish, Judge
                      ___________________________________

                            No. W2017-00677-CCA-R3-CD
                        ___________________________________

ALAN E. GLENN, J., dissenting.

       The posture of this matter is that, as the Defendant arrived in the trial court to
enter his plea of guilty and be placed on probation, the trial court announced to the parties
that the court wanted to be “educated” as to the workings of the PSA, to which the
Defendant would be subject. As the majority opinion in this matter explains, the practical
effect of the PSA is that certain alleged infractions of the probation requirements would
not go to the court but, rather, would be handled by a probation officer. Subsequently, a
hearing was held in this matter at which a probation officer testified regarding the general
workings of the PSA. The Defendant, having not yet pled guilty, was not yet subject to
the PSA provisions; and defense counsel had not questioned its constitutionality. One
week later, the trial court filed its lengthy and detailed order, finding that the
constitutionality of the PSA was ripe for the court’s consideration, and concluding that,
were the Defendant subject to its provisions, his rights to due process and equal
protection of the law would be violated.

       The state then appealed this ruling. Although as I understand, the State has not
questioned whether this matter is properly before this court, I believe that it is not, and
will explain why I believe the path of this matter was not in accord with the rights
afforded the parties by the Tennessee Code of Judicial Conduct (“CJC”).

        Tennessee Supreme Court Rule 10, Section 2.11 provides that “[a] judge shall
disqualify himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned,” setting out then the various considerations. Section (A)(1)(c)
of this rule provides, in pertinent part, that disqualification is required if “[t]he judge is a
person who has more than a de minimis interest that could be substantially affected by
the proceeding . . . .” Since an apparent effect of the PSA would be to reduce the number
of alleged probation violation matters reaching trial courts with criminal jurisdiction, I
believe that the parties should have had the opportunity to explore whether Tennessee
courts have an “interest [in the PSA] that could be substantially affected” by its
application. Although neither of the parties filed a recusal request, Comment [2] to this
section provides that “[a] judge is obligated not to hear or decide matters in which
disqualification is required, even though a motion to disqualify is not filed.” While
Comment [3] recognizes the Rule of Necessity, our supreme court, in Hooker v. Haslam,
393 S.W.3d 156 (Tenn. 2012), explained its limited application in declining to apply it,
while the Michigan supreme court had done otherwise in Citizens Protecting Michigan’s
Constitution v. Secretary of State, 755 N.W.2d 147, 149 (2008) in a similar matter,
because, unlike Tennessee, Michigan had no process for selecting a special supreme
court:

               The circumstances in our state are different than those in Michigan.
       As indicated, Tennessee has constitutional and statutory provisions which
       allow the Governor to appoint “special judges” who would have no
       economic interest in the subject matter of the litigation. While it is
       arguable that we have no “economic interest” because of the constitutional
       protections as to compensation set out in article VI, section 7,9 our
       inclination is to conclude, as did the Michigan Supreme Court, that there
       exists the appearance of an “economic interest” in our compensation.

Id. at 168.

        Further, since this case proceeded from the trial court’s wishing to be “educated”
about the PSA to next holding that it was unconstitutional, the Defendant was not asked,
as far as the record shows, whether he would have preferred to be subject to the PSA
procedures rather than returning to court regarding alleged probation violations. I note
that the Defendant made no apparent claims that the PSA was unconstitutional until after
the trial court had ruled that it was and the State had appealed that decision. In fact, the
issues in this matter were framed by the trial court’s ruling and not from anything filed by
the Defendant in the trial court. For all of these reasons, I believe that the judgment of
the trial court must be reversed.

      I next will review the State’s argument that these matters are not yet ripe for our
consideration.

       On appeal, the State argues that the Defendants’ claims “should have been rejected
as unripe and non-justiciable,” because they had “violated no condition of probation, and
no sanction [had] been imposed and [might] never be if [they complied] with the
conditions imposed by the trial court.” As I will explain, I agree with the State.



                                           -2-
        In West v. Schofield, 468 S.W.3d 482 (Tenn. 2015) [hereinafter West II], the
plaintiff, Stephen Michael West, and four other inmates sentenced to death, filed a
declaratory judgment action, asserting that the new protocol of the TDOC calling for
executions to be carried out with a single drug, pentobarbital, rather than the three drugs
which had been used previously, was unconstitutional. In its review of the appeal, our
supreme court noted that executions were to be carried out by lethal injection. Id. at 485.
The alternative method was electrocution, which would be used if lethal injection were
held to be unconstitutional, or the commissioner of corrections certified to the governor
that one or more of the ingredients essential to carrying out a sentence of death by lethal
injection, through no fault of the TDOC, to be unavailable. Id. at 486-87.

        Previously, in related litigation, the court had explained the need for the
justiciability as to inmates’ claims that the protocol for lethal injections was
unconstitutional:

       For a controversy to be justiciable, a real question rather than a theoretical
       one must be presented and a legally protectable interest must be at stake.
       Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 915 (1949). If the
       controversy depends upon a future or contingent event, or involves a
       theoretical or hypothetical state of facts, the controversy is not justiciable.
       Story v. Walker, 218 Tenn. 605, 404 S.W.2d 803, 804 (1966). If the rule
       were otherwise, the “courts might well be projected into the limitless field
       of advisory opinions.”

West v. Schofield, 460 S.W.3d 113, 130 (Tenn. 2015) [hereinafter West I] (emphasis in
original).

       Further, the court outlined the process utilized to ascertain whether a dispute was
yet justiciable:

               In determining whether a particular case is ripe, courts typically
       engage in a two-part analysis, evaluating “[1] the fitness of the issues for
       judicial decision and [2] the hardship to the parties of withholding court
       consideration.” Abbott Labs., 387 U.S. at 149, 87 S. Ct. 1507; see also B &
       B Enters., 318 S.W.3d at 848; Warshak v. United States, 532 F.3d 521, 525
       (6th Cir. 2008) (en banc) (describing the two-part inquiry as: “(1) [I]s the
       claim fit for judicial decision in the sense that it arises in a concrete factual
       context and concerns a dispute that is likely to come to pass? [A]nd, (2)
       what is the hardship to the parties of withholding court consideration?”
       (citations and internal quotation marks omitted)).

                                             -3-
West II, 468 S.W.3d at 491.

       The court explained why the inmates’ claims were not yet ripe for adjudication:

              No allegation of the amended complaint, or any other portion of the
       record on appeal, demonstrates that the Inmates are presently subject to
       execution by electrocution. Moreover, the plain language of the CPEA
       establishes that none of the Inmates will ever become subject to execution by
       electrocution unless one of two statutory contingencies actually occurs.
       Indeed, the CPEA authorizes the use of electrocution as a method of
       execution, if, and only if, one of the following contingencies occurs:

                     (1) Lethal injection is held to be unconstitutional by
              a court of competent jurisdiction in the manner described
              in subsection (d); or

                     (2) The commissioner of correction certifies to the
              governor that one (1) or more of the ingredients essential
              to carrying out a sentence of death by lethal injection is
              unavailable through no fault of the department.

       Tenn. Code Ann. § 40-23-114(e).
Id.

       These contingencies were fatal to the claims of the inmates regarding the method
of execution:

              [T]he Electrocution Causes of Action are not ripe for judicial decision
       because they involve a method of execution that does not now presently
       apply to the Inmates and will never apply to them unless one of two statutory
       contingencies occurs in the future.

Id. at 492.

       Similarly, in the present appeal, I also conclude that the matter is not yet fit for
adjudication, because, as the state asserts as to each, “[t]he defendant has violated no
condition of probation, and no sanction has been imposed and may never be if he
complies with the conditions imposed by the trial court.”

      Next, the court in West II examined whether the parties would suffer a hardship if
the complaint of the inmates was not heard at that time:
                                           -4-
              The second part of the ripeness analysis requires consideration of
       whether withholding adjudication of the Electrocution Causes of Action at
       this time will impose any meaningful hardship on the parties. “The
       prototypical case of hardship comes from the claimant who faces a choice
       between immediately complying with a burdensome law or ‘risk[ing]
       serious criminal and civil penalties.’” Warshak, 532 F.3d at 526 (quoting
       Abbott Labs., 387 U.S. at 153, 87 S. Ct. 1507). This prototypical hardship
       is not present in this litigation. The CPEA does not force the Inmates to
       make any choice. In fact, as already discussed, the CPEA provides for
       carrying out executions for electrocution if, and only if, one of two
       statutory contingencies actually occurs. The CPEA does not direct the
       Inmates “to engage in, or to refrain from, any conduct.”

West II, 468 S.W.3d at 492.

      As did our supreme court in West II, I believe that the Defendants will undergo no
hardship by our court’s not reviewing the constitutionality of the PSA at this time. The
imposition of sanctions will not occur in the absence of a future probation violation.

        Since this matter is not yet ripe for our consideration, we cannot not review the
trial court’s additional decisions that the PSA violates the rights to due process and equal
protection of the law.

                                     CONCLUSION

        If one branch of government invalidates the actions of another branch, concluding
that the powers and authority of the reviewing branch have been impinged upon, I believe
it to an absolute necessity that the reviewing branch scrupulously and fairly follows its
procedures in doing so. Since, in my opinion, that was not done here, I would reverse the
judgment of the trial court.


                                          ______________________________________
                                          ALAN E. GLENN, JUDGE




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