Gregory L. Smith v. State of Tennessee ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 27, 2012 Session
GREGORY L. SMITH v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Macon County
No. 2011CV118 John Wooten, Judge
No. M2012-00115-COA-R3-CV - Filed July 17, 2012
This case involves the denial of a handgun carry permit by the Department of Safety to an
individual who had previously been convicted of a felony and sentenced to two years in the
Department of Correction. The applicant appealed to the General Sessions Court, which
reversed the decision of the Department of Safety. The Department of Safety then appealed
to Circuit Court, which affirmed the General Sessions Court and held that the applicant was
entitled to obtain a handgun carry permit because his full civil rights had been restored upon
the issuance of a Certificate of Restoration of Voting Rights. We hold that the applicant is
not entitled to obtain a handgun carry permit pursuant to Tennessee law because the
applicant’s right to seek and hold public office has not been restored by a court of competent
jurisdiction. Reversed and remanded.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M., K IRBY, J., joined.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Whitehouse, Assistant
Attorney General; William E. Young, Solicitor General; Lyndsay F. Sanders, Senior Counsel,
for appellant, State of Tennessee.
Gregory L. Smith, Westmoreland, Tennessee, Pro Se.
OPINION
I. Background
In 1988 Plaintiff/Appellee Gregory L. Smith pleaded guilty to the crime of possession
of a Schedule VI controlled substance, for which Mr. Smith was sentenced to serve two years
in the Department of Correction. According to his brief, Mr. Smith was released from prison
after serving seven months, and subsequently served another year and a half on parole. Upon
completion of his parole, Mr. Smith received a Certificate of Restoration of Voting Rights
from his parole officer.
On August 3, 2011, Mr. Smith applied to the Defendant/Appellant Tennessee
Department of Safety (“Department of Safety”) for a handgun carry permit. On the
application, Mr. Smith disclosed that he had been convicted of felony possession of a
Schedule VI controlled substance and stated that he had obtained full restoration of his rights.
On August 18, 2011, the Department of Safety denied the handgun carry permit on the
ground that Mr. Smith’s right to seek and hold public office had not been restored, making
him ineligible to obtain a handgun carry permit.
On September 12, 2011, Mr. Smith filed a petition in the General Sessions Court for
Macon County seeking review of the Department of Safety’s denial of his application to
obtain a handgun carry permit. The matter was heard on September 28, 2011. The General
Sessions Court reversed the decision of the Department of Safety and ruled that Mr. Smith
was eligible to obtain a handgun carry permit. The Department of Safety filed a notice of
appeal to the Circuit Court of Macon County. In an order entered on December 8, 2011, the
Circuit Court affirmed the ruling of the General Sessions Court that Mr. Smith was eligible
for a handgun carry permit. The Department of Safety filed a notice of appeal to this Court
on January 5, 2012. Also on January 5, 2012, the Department of Safety sought a Motion to
Stay Pending Appeal, which was denied by the trial court on January 12, 2012. On February
13, 2012, the Department of Safety filed a motion in this Court for review of the trial court’s
denial of the motion for stay pending appeal. On February 15, 2012, this Court granted the
stay on the issuance of Mr. Smith’s handgun carry permit.
II. Standard of Review
We review the trial court’s findings of fact de novo with a presumption of correctness,
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of
correctness, however, attaches to the trial court’s conclusions of law and our review is de
novo. Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27
S.W.3d 913, 916 (Tenn. 2000)).
III. Analysis
The Department of Safety submits one issue for review, which we restate:
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Whether the circuit court erred in reversing the Department of
Safety’s denial of [Mr. Smith’s] application for a handgun
permit . . . , where [Mr. Smith] was previously convicted of a
felony drug offense but has received a “Certificate of
Restoration of Voting Rights” from his parole officer.
Both Federal and Tennessee statutes concern the possession of firearms. Pursuant to
Tennessee Code Annotated Section 39-17-1351, any lawful resident of Tennessee over the
age of twenty-one (21) may apply to the Department of Safety to obtain a handgun carry
permit:
(a) The citizens of this state have a right to keep and bear arms
for their common defense; but the general assembly has the
power, by law, to regulate the wearing of arms with a view to
prevent crime.
(b) Except as provided in subsection (r), any resident of
Tennessee who is a United States citizen or permanent lawful
resident, as defined by § 55-50-102, who has reached
twenty-one (21) years of age, may apply to the department of
safety for a handgun carry permit. If the applicant is not
prohibited from purchasing or possessing a firearm in this state
pursuant to § 39-17-1316 or § 39-17-1307(b), 18 U.S.C. §
922(g), or any other state or federal law, and the applicant
otherwise meets all of the requirements of this section, the
department shall issue a permit to the applicant.
However, the plain language of Tennessee Code Annotated Section 39-17-1351 provides that
the Department may only issue a permit to an individual if he or she “is not prohibited from
purchasing or possessing a firearm in this state pursuant to § 39-17-1316 or § 39-17-1307(b),
18 U.S.C. § 922(g), or any other state or federal law.”
Mr. Smith does not dispute that upon his conviction for possession of a Schedule VI
controlled substance, he was prohibited under Tennessee Code Annotated Section
39-17-1307(b) from possessing a handgun. Tenn. Code Ann. § 39-17-1307(b)(1) (1989),
amended by 2008 Pub.Acts, c. 1166, § 1, effective July 1, 2008 (making it a criminal offense
for an individual “convicted of a felony drug offense” to possess a handgun). Tennessee law
also provides that an individual will not be entitled to obtain a handgun carry permit if he or
she is prohibited from doing so pursuant to federal law. See Tenn. Code Ann. §
39-17-1351(b) (requiring that the applicant for a handgun carry permit not be prohibited from
purchasing or possessing a firearm under 18 U.S.C. § 922(g)). Pursuant to federal law, “a
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person convicted in any court of a crime punishable by imprisonment for a term exceeding
one year” is prohibited from possessing a firearm. 18 U.S.C. § 922(g)(1) (providing that
felons are prohibited from “ship[ping] or transport[ing] in interstate or foreign commerce,
or possess[ing] in or affecting commerce, any firearm or ammunition”). Accordingly, due
to the firearms disabilities imposed on those convicted of felonies under both Tennessee and
Federal law, Mr. Smith is not entitled to obtain a handgun carry permit pursuant to Tennessee
Code Annotated Section 9-17-1351(b). Indeed, due to his felony conviction, Mr. Smith not
only lost his ability to obtain a handgun carry permit, but also his right to vote, the right to
seek and hold public office and the right to sit on a jury. Tenn. Code Ann. § 40-11-112
(“Upon conviction for any felony, it shall be the judgment of the court that the defendant be
infamous and be immediately disqualified from exercising the right of suffrage.”); Tenn.
Code Ann. § 40-20-114 (“Every person convicted of a felony or an infamous crime and
sentenced to the penitentiary, . . . is disqualified from qualifying for, seeking or holding any
office under the authority of this state . . . .”); Tenn. Code Ann. § 22-1-102 (providing that
persons “convicted of certain infamous offenses” are “incompetent to act as jurors”)
However, Mr. Smith argues that he is eligible to obtain a handgun carry permit
pursuant to Tennessee Code Annotated Section 39-17-1351(j), which provides:
The department shall not deny a permit application if:
* * *
(3) The applicant, who was rendered infamous or deprived of
the rights of citizenship by judgment of any state or federal
court, has had the applicant's full rights of citizenship duly
restored pursuant to procedures set forth within title 40,
chapter 29, or other federal or state law; provided, however,
that the provisions of this subdivision (j)(3) shall not apply to
any person who has been convicted of burglary, any felony
offense involving violence or use of a firearm or any felony drug
offense involving a Schedule I, II, III, IV or V controlled
substance. If the applicant has been convicted of a felony drug
offense involving a Schedule VI controlled substance, the
provisions of this subdivision (j)(3) shall not apply if the offense
occurred within ten (10) years of the date of application or
renewal.1
1
Mr. Smith’s conviction for Possession of a Schedule VI controlled substance occurred more than
(continued...)
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(emphasis added). Federal law contains a similar provision. See 18 U.S.C. § 921(a)(20)
(providing that a felony conviction shall not prevent an individual from obtaining a firearm
if the individual “has had civil rights restored”). The Sixth Circuit discussed the federal
statute preventing individuals convicted of felonies from possessing firearms in United
States v. Cassidy, 899 F.2d 543 (6th Cir. 1990). In Cassidy, the Sixth Circuit held that when
considering whether an individual is prohibited from possessing a firearm due to the federal
firearms disability, courts should look to state law to determine if the “state law restored civil
rights to [the individual], without expressly limiting the [individual’s] firearms privileges.”
Id. at 546. The Sixth Circuit has held that applying Federal and Tennessee law, the rights
which must be restored include “the right to vote, the right to seek and hold public office and
the right to serve on a jury.” Id. at 549. Only if these three rights have been restored pursuant
to Tennessee law, is Mr. Smith eligible under both Tennessee and Federal law to obtain a
handgun carry permit. Accordingly, we look to Tennessee law to determine whether Mr.
Smith’s full civil rights have been restored for purposes of the Tennessee and Federal
firearms disabilities.
According to Mr. Smith, the trial court was correct in ruling that he is eligible to
obtain a handgun carry permit because his rights were fully restored pursuant to Tennessee
Code Annotated Section 40-29-105 when he was issued a Certificate of Restoration of
Voting Rights upon completion of his sentence. In contrast, the Department of Safety argues
that the Certificate of Restoration of Voting Rights did not restore Mr. Smith’s ability to seek
and hold public office, which is governed by Tennessee Code Annotated Section 40-29-114.
To decide this issue, we must consider the statutory scheme governing civil disabilities
imposed on individuals convicted of felonies, as well as the restoration of those rights.
Our Supreme Court has discussed the nature of the civil disabilities that Tennessee
statutes impose upon persons convicted of felonies:
Virtually every jurisdiction subjects a convicted
defendant not only to criminal punishment but also sanctions
that restrict civil and proprietary rights. Walter M. Grant et al.,
Special Project, The Collateral Consequences of a Criminal
Conviction, 23 Vand.L.Rev. 929 (1970) (hereinafter ‘Special
Project’). Such restrictions, or civil disabilities, date back to
ancient Greece and Rome, when a criminal conviction rendered
1
(...continued)
ten years prior to his application for a handgun carry permit. Accordingly, so long as his full civil rights have
been restored, he is eligible to obtain a handgun pursuant to Tennessee law. See Tenn. Code Ann. §39-17-
1351(j)(3).
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one ‘infamous,’ and resulted in the loss of the right to vote, hold
office, make speeches or assemble. The sanctions were viewed
as retributive and deterrence measures imposed against those
who committed crimes because they entailed the loss of rights
most cherished by society. Civil disabilities were also imposed
in early English common law in the form of ‘attainder.’ A
person convicted of treason or a felony, i.e., attained, was not
only subjected to criminal punishment but also the loss of
property, voting, and other civil rights. Id. at 941–944.
In this country civil disabilities continue to play a
significant role in the criminal justice system and generally fall
into one of two categories: civil death statutes and specific
disability statutes.
Civil death statutes are "blanket provisions that deprive
the criminal of [all] rights while he is serving a prison sentence
for life or less than life." Special Project, supra, at 950. As
defined in Black's Law Dictionary, civil death is:
[t]he state of a person who, though possessing
natural life, has lost all civil rights and as to them
is considered civilly dead.... In some states, some
persons convicted of serious crimes are declared
to be civilly dead which means that certain civil
rights and privileges of the convicted offender
including the right to vote, contract and sue and
be sued are forfeited.
Black's Law Dictionary 245 (6th ed. 1990); see also 21A
Am.Jur.2d Criminal Law, § 1032 (1981 & Supp.1997).
In contrast, the other category—specific disability
statutes—designate a particular civil disability that occurs upon
the conviction and remains in effect throughout the defendant's
life unless restored by a specific statutory procedure. Special
Project, supra, at 951. A civil disability pursuant to such a
statute may include the loss of the right to vote, hold office,
serve as a juror, possess firearms, and the denial of professional
or occupational licensing. [Special Project, supra, at 952.].
.
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Like the vast majority of states, Tennessee does not have
a civil death statute but rather a series of specific disability
statutes. These include the loss of the right to vote, see Tenn.
Code Ann. § 40-20-112; the loss of the right to hold public
office, see Tenn. Code Ann. § 40-20-114; and the loss of the
right to serve as a fiduciary, see Tenn. Code Ann. § 40-20-115.
Cole v. Campbell, 968 S.W.2d 274, 276–77 (Tenn. 1998). Therefore, to remove a specific
disability imposed by the Legislature, an individual must follow the statutory restoration
procedure peculiar to that disability. See State v. Johnson, 79 S.W.3d 522, 527 (Tenn. 2002)
(discussing the nature of “specific disability statutes”).
This Court recently discussed the restoration of the right to vote for persons, such as
Mr. Smith, convicted of a crime after July 1, 1986, but before July 1, 1996:
For persons convicted of infamous crimes after July 1,
1986, but before July 1, 1996, restoration of the right to vote
was granted by a certificate of restoration issued by the
pardoning, supervising, or incarcerating authority, not by the
courts. Tenn. Code Ann. § 40-29-105(b)(3). The authority
issuing the certificate was required to send a copy to the
coordinator of elections. Tenn. Code Ann. § 40-29-105(b)(4).
The statute specifically provided that a person eligible for
restoration “may request, and then shall be issued a certificate of
restoration.” Tenn. Code. Ann. § 40-29-105(b)(3). As the U.S.
District Court stated, under the immediately prior system, “if he
is eligible, his right to vote is restored.” [United States v.]
White, 808 F.Supp. [586,] 588 [(M.D. Tenn. 1992)].
State v. Black, No. M2000-02935-COA-R3-CV, 2002 WL 1364043, at * 7 (Tenn. App. Ct.
June 25, 2002). According to our Supreme Court, the purpose of this statute, referred to as
the Restoration Statute, is to “wipe out the transgressions of the offending person and to give
him [or her] another chance in society.” Bryant v. Moore, 198 Tenn. 335, 279 S.W.2d 517,
518 (Tenn. 1955). However, at the time of Mr. Smith’s conviction, a separate provision
governed the restoration of the right to seek and hold public office:
Every person convicted of a felony or an infamous crime and
sentenced to the penitentiary, either on the state or federal level,
is disqualified from qualifying for, seeking or holding any office
under the authority of this state unless and until the person's
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citizenship rights have been restored by a court of competent
jurisdiction.
Tenn. Code Ann. § 40-20-114 (1979), amended by 2007 Pub. Acts, c. 325, § 1, eff. July 1,
2007;2 see also Tenn. Code Ann. § 40-20-112 (providing that a person shall be rendered
infamous “upon conviction for any felony”).
Mr. Smith argues that, pursuant to the Restoration Statute, not only his right to vote
and sit on a jury,3 but also his right to seek and hold public office were restored, citing
2
The current version of Tennessee Code Annotated Section 40-20-11 provides, in pertinent part:
(a) A person who has been convicted in this state of an infamous crime, as
defined by § 40-20-112, other than one specified in subsection (b), or
convicted under the laws of the United States or another state of an offense
that would constitute an infamous crime if committed in this state, shall be
disqualified from qualifying for, seeking election to or holding a public
office in this state, unless and until that person's citizenship rights have
been restored by a court of competent jurisdiction.
(b) Notwithstanding the provisions of subsection (a) to the contrary, a
person convicted in this state of an infamous crime, as defined by §
40-20-112, or convicted under the laws of the United States or another state
of an offense that would constitute an infamous crime if committed in this
state, and the offense was committed while that person is holding an elected
public office at the federal level, or in this or any other state or any political
subdivision of this or any other state, shall be forever disqualified from
qualifying for, seeking or holding any public office in this state or any
political subdivision of this state, if the offense was committed in the
person's official capacity or involved the duties of the person's office. This
subsection (b) shall apply even if the person's citizenship rights have been
restored, but shall not be construed as limiting the restoration of any other
citizenship rights, including the right of suffrage provided for in § 2-2-139,
§ 2-19-143, or § 40-29-105.
Accordingly, all persons convicted of infamous crimes now must seek restoration of their right to seek and
hold public office from “a court of competent jurisdiction,” regardless of whether they were sentenced to the
penitentiary.
3
From our research, no specific statute governs the restoration of the right to sit on a jury after a
felony conviction. The United States District Court came to the same conclusion in United States v. White,
808 F. Supp. 586 (M.D. Tenn. 1992):
It should be noted that though [the Tennessee Code Annotated Section 40-
(continued...)
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Tennessee Code Annotated Section 40-29-105(b), which provides:
(b) For all persons convicted of infamous crimes after July 1,
1986, but before July 1, 1996, the following procedures shall
apply:
(1) A person rendered infamous or deprived of the rights of
citizenship by the judgment of any state or federal court may
have full rights of citizenship restored upon:
* * *
(C) Being granted final release from incarceration or supervision
by the board of probation and parole, or county correction
authority;
(emphasis added). However, it is well-settled that the use of the word “may” in a statute
generally connotes “discretion or permission and will not be treated as a word of command,
unless there is something in the context of the subject matter of the statute under
consideration to indicate that it was used in that sense.” Steppach v. Thomas, 346 S.W.3d
488 (Tenn. Ct. App. 2011) (citing Williams v. McMinn County, 209 Tenn. 236, 352 S.W.2d
430, 433 (Tenn. 1961)); see also Bd. of County Commr's of Shelby County v. Taylor, No.
93–1490–I, 1994 WL 420922, at *4 (Tenn. Ct .App. Aug. 12, 1994) (holding that “a
provision couched in permissive terms is generally regarded as directory or discretionary”
3
(...continued)
29-102] procedure is clearly applicable to the restoration of the right to
seek and hold public office, it is not clearly applicable to the restoration of
the right to sit on a jury. [Tennessee Code Annotated Section] 22-1-102
makes no mention of how that right can be restored, nor does [Section] 40-
29-101 expressly state that the circuit court proceeding will restore the right
to serve on a jury. In addition, State v. Bell, 745 S.W.2d 858 (Tenn. 1988),
a case describing Tennessee’s decision to exclude convicted felons from
serving on juries, does not mention a procedure for regaining that right. Id.
at 861.
Id. at 589. Here, the Department of Safety does not argue that Mr. Smith is ineligible to obtain a handgun
carry permit because his right to sit on a jury has not been restored; the Department of Safety only argues
that Mr. Smith’s right to seek and hold public office has not been restored. Issues not raised on appeal are
considered waived. See Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002).
Accordingly, we only consider the issue of whether Mr. Smith’s right to seek and hold public office has been
restored.
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and “[t]his is true of the word ‘may’”). Accordingly, while Tennessee Code Annotated
Section 40-29-105(b)(1)(C) provides that an individual’s full citizenship rights may be
restored upon final release from incarceration or parole, the statute does not provide that final
release, without more, operates to fully restore an individual’s civil rights.
Mr. Smith further argues that his full civil rights have been restored based on
Tennessee Attorney General Opinion 97-169 (1997), which appears to state that the
automatic procedures outlined in Tennessee Code Annotated Section 40-29-105(c) are
sufficient to restore all civil rights to an individual:
It has been suggested that the General Assembly, by
enacting Tenn. Code Ann. § 39-17-1351(j)(3), intended that a
felon must obtain restoration of rights through a court
proceeding in order to be eligible to obtain a handgun carry
permit. In other words, the suggestion is that the General
Assembly did not intend that a felon who obtained restoration of
rights through the automatic procedure available from July 1,
1986 until June 30, 1996 be able to obtain a handgun carry
permit.
The pertinent part of the statute states: “The department
shall not deny a permit application if . . . [t]he applicant . . . has
had his or her full rights of citizenship duly restored pursuant to
the procedures set forth within title 40, chapter 29 . . . .” Tenn.
Code Ann. § 39-17-1351(j)(3). Title 40, chapter 29 of the
Tennessee Code provides three procedures for the restoration of
rights, the procedure applicable to a particular felon depending
upon the date of his conviction . . . .
“In construing statutes, [we] must presume that the
legislature has knowledge of its prior enactments and knows the
state of the law at the time it passes legislation.” State v.
Levandowski, No. 03-S-01-9611-CR-000116, 1997 WL 610823,
at *1 (Tenn. Oct. 6, 1997). In this instance, the tape recordings
of the debates in committee and on the floor of both houses
concerning this statute evidence that the legislators were well
aware of the automatic restoration procedure in place from 1986
to 1996. In the end, however, the General Assembly passed a
final bill that did not distinguish between the automatic
procedure and the court procedure for restoration of rights for
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purposes of obtaining a handgun carry permit. On this point, the
statute is clear and unambiguous. Only “[w]hen the language is
ambiguous and does not yield a clear interpretation ... may [we]
consult the legislative history for additional interpretive
guidance.” Carter v. State, 952 S.W.2d 417, 419 (Tenn. 1997).
Therefore, felons who have had their rights restored under the
automatic procedures in place in 1986 to 1996 are eligible to
obtain a handgun carry permit, if otherwise qualified.
Tenn. Att. Gen. Op. 97-169, n.7 (1997) (emphasis added). Based on this opinion, Mr. Smith
argues that the Certificate of Restoration of Voting Rights issued to him by his parole officer
restored all his civil rights and made him eligible to obtain a handgun carry permit.
In contrast, the Department of Safety points to a later opinion involving this issue,
which specifically retracts portions of Tennessee Attorney General Opinion 97-169 with
regard to individuals who had been sentenced to the penitentiary, such as Mr. Smith.
Tenn. Code Ann. § 40-20-114 provides that felons or infamous
criminals sentenced to the penitentiary may have their rights to
seek and hold public office restored only when citizenship rights
have been restored by a court of competent jurisdiction. This
suggests that the certification that conditions such as release or
expiration of sentence have been met under Tenn. Code Ann. §
40-29-105(b) will not restore all rights in penitentiary sentence
cases.
Tenn. Code Ann. § 39-17-1351(b) requires that the applicant for
a handgun permit not be prohibited from purchasing or
possessing a firearm under 18 U.S.C. § 922(g). The federal
statute prohibits gun possession or purchase by persons
convicted of a crime punishable by imprisonment exceeding one
year. This prohibition can be removed if the convicting state has
restored “civil rights” to the felon, without expressly limiting
firearm privileges. 18 U.S.C. 921(a)(20).
* * *
United States v. White, [ 808 F. Supp. 586 (M.D. Tenn. 1992)],
provides case authority for the requirement of a court order for
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removal of handgun permit disabilities in certain 1986–96 cases.
In that case, the court stated that the restoration of rights
certificate provisions of Tenn. Code Ann. § 40-29-105 concern
the restoration of voting rights. The court cited Tenn. Code Ann
§ 40-29-114, requiring a court order to restore the rights to seek
and hold public office to a felon who has been sentenced to the
penitentiary. The court directed that a felon who has been
sentenced to the penitentiary must follow the procedure in Tenn.
Code Ann. §§ 40-29-101– 102 to accomplish this. White, at 588.
There is state court authority in accord with this conclusion. In
State v. Black, 2002 WL 1364043 (Tenn. Ct. App. June 25,
2002), the court, citing White, mentioned that there are two
distinct restoration procedures for 1986–96 felons. These are:
the certificate for the right to vote and a court order for the
rights to seek and hold public office. Black, at *6. The question
then is whether an otherwise eligible penitentiary-sentenced
1986–96 felon would need both a court order and a certificate to
qualify for a handgun permit, or whether a court order alone
would suffice.
The necessity to obtain a court order in some 1986–96 cases
involving persons sentenced to the penitentiary is created by
Tenn. Code Ann. § 40-20-114. That law speaks in terms of an
order restoring “citizenship rights,” which can be restored to
such persons “by a court of competent jurisdiction.” The “court
of competent jurisdiction” is the circuit court, Tenn. Code Ann.
§ 40-29-101, and the procedure is set forth in Tenn. Code Ann.
§§ 40-29-102–104. These statutes do not by context or otherwise
limit themselves to a particular right. Therefore, although the
question is not free from doubt, it appears that an otherwise
eligible 1986–96 felon sentenced to the penitentiary who
obtained a court order restoring his citizenship rights under this
section would not be required to also present a certificate in
order to obtain a handgun permit.
Thus the Department of Safety is not authorized to accept a
penitentiary-sentenced felon's § 40-29-105(b) certificate as
sufficient proof that federal firearms disabilities have been
removed. Such felons must present a court order restoring
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citizenship rights. As to felons convicted between July 1, 1986,
and July 1, 1996, and not sentenced to the penitentiary, a
certificate of restoration is necessary.
This office has previously addressed issuance of handgun
permits to felons in general. Tenn. Op. Atty. Gen. No. 97-169.
Neither the question presented in that opinion, nor the analysis,
specifically dealt with felons who were sentenced to the
penitentiary. To the extent that the previous opinion could be
read to suggest that otherwise eligible penitentiary-sentenced
inmates have their full rights of citizenship restored for handgun
purposes by issuance of a certificate of restoration, it is hereby
withdrawn.
* * *
For the reasons set forth above, an otherwise eligible felon
convicted during the 1986-1996 period and sentenced to the
penitentiary must obtain restoration of his or her “citizenship
rights” by court order before obtaining a handgun permit. The
means for accomplishing such restoration is suggested by the
following excerpt from White:
The reference in T.C.A. § 40-20-114 to the
restoration of citizenship rights by a “court of
competent jurisdiction” refers to the procedures
outlined in T.C.A. § 40-29-101 and § 40-29-102.
White, at 588.
The procedure requires the filing of a petition in circuit court in
the county of the felon's residence or conviction with proper
notice to prosecutors and satisfactory proof of character. Tenn.
Code Ann. §§ 40-29-102–103.
Tenn. Op. Atty. Gen. 02-119 (2002) (footnotes omitted) (emphasis added). According to this
opinion, the automatic procedures outlined in Tennessee Code Annotated Section
40-29-105(b)(3) are sufficient to fully restore the civil rights of an individual convicted of
a felony, but not sentenced to a penitentiary. However, for an individual convicted of a felony
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and sentenced to the penitentiary, the individual must separately seek restoration of his or her
right to seek and hold public office pursuant to Tennessee Code Annotated Section
40-20-114, which requires a proceeding in “a court of competent jurisdiction.”
To determine whether Tennessee Code Annotated 40-20-114 indeed provides that an
individual sentenced to the penitentiary is required to seek restoration of his or her right to
seek and hold public office through a court proceeding, even if the individual was convicted
of a felony prior to 1996, we must employ the rules of statutory construction. The Tennessee
Supreme Court recently reiterated the rules, stating:
Our role is to determine legislative intent and to effectuate
legislative purpose. [Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 526 (Tenn. 2010)]; In re Estate of Tanner, 295 S.W.3d
610, 613 (Tenn. 2009). The text of the statute is of primary
importance, and the words must be given their natural and
ordinary meaning in the context in which they appear and in
light of the statute's general purpose. See Lee Med., Inc., 312
S.W.3d at 526; Hayes v. Gibson Cnty., 288 S.W.3d 334, 337
(Tenn. 2009); Waldschmidt v. Reassure Am. Life Ins. Co., 271
S.W.3d 173, 176 (Tenn. 2008). When the language of the statute
is clear and unambiguous, courts look no farther to ascertain its
meaning. See Lee Med., Inc., 312 S.W.3d at 527; Green v.
Green, 293 S.W.3d 493, 507 (Tenn. 2009).
Mills v. Fulmarque, 360 S.W.3d 362, 368 (Tenn. 2012).
Giving the words in Tennessee Code Annotated 40-20-114 their plain and ordinary
meaning, we must agree with both the Department of Safety and the Tennessee Attorney
General. Tennessee Code Annotated Section 40-20-114, as it existed when Mr. Smith
pleaded guilty to felony possession of a Schedule VI controlled substance, clearly provides
that for an individual sentenced to the penitentiary, he or she must seek restoration of the
right to seek and hold public office through a proceeding in “a court of competent
jurisdiction.” Tennessee Code Annotated Section 40-20-114 is part of a broad statutory
scheme involving the rights lost to individuals based on felony convictions and the
procedures required to restore those rights. As such, we must interpret the statutes in pari
materia, so as to make that scheme consistent in all its parts. Wells v. Tennessee Bd. of
Regents, 231 S.W.3d 912, 917 (Tenn. 2007); Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.
1994); State v. Allman, 68 S.W.2d 478, 479 (Tenn. 1934). Courts are required to construe
a statute, or set of statutes, “so that the component parts are consistent and reasonable.” In
re Sidney J., 313 S.W.3d 772, 775 (Tenn. 2010) (quoting Cohen v. Cohen, 937 S.W.2d 823,
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827 (Tenn. 1996)). Accordingly, we must construe Tennessee Code Annotated Section 40-
20-114 so that it is consistent with the broad statutory scheme involving restoration of rights
to individuals convicted of felonies. Taking the statutory scheme as a whole, we agree with
the United States District Court that the proceeding by “a court of competent jurisdiction”
to restore the right to seek and hold public office clearly refers to a proceeding in the circuit
court pursuant to Tennessee Code Annotated Section 40-29-102–4. See White, 808 F.Supp.
at 588. Thus, the issuance of a Certificate of Voting Rights by the parole board is insufficient
to also restore an individual’s right to seek and hold public office when the individual has
been sentenced to the penitentiary. See State v. Black, No. M2000-02935-COA-R3-CV, 2002
WL 1364043, at * 7 (Tenn. App. Ct. June 25, 2002) (drawing a distinction between the
restoration of the right to seek and hold public office and the restoration of other civil rights).
Without the restoration of the right to seek and hold public office, an individual convicted
of a felony and sentenced to a penitentiary has not had his or her full civil rights restored. The
result is that the individual is prohibited from possessing a firearm pursuant to both
Tennessee and Federal law.
It is undisputed that Mr. Smith was sentenced to the penitentiary for two years when
he pleaded guilty to the crime of possession of a Schedule VI controlled substance for resale.
Because Mr. Smith was sentenced to the penitentiary, he was required to file a petition in
Circuit Court to attain restoration of his right to seek and hold public office. It is also
undisputed that Mr. Smith did not petition the Circuit Court to have his right to seek and hold
public office restored. Mr. Smith’s right to seek and hold public office was removed in 1988
as a result of his guilty plea and the right has never been restored. Because his full civil rights
have not yet been restored, Mr. Smith is ineligible to obtain a handgun carry permit under
Tennessee and Federal law. Accordingly, we reverse the judgment of the trial court and
reinstate the determination of the Department of Safety denying Mr. Smith’s application for
a handgun carry permit.
IV. Conclusion
Based on the foregoing, the judgment of the Circuit Court of Macon County is
reversed, and this cause is remanded for all further proceedings as may be necessary and
consistent with this opinion. Costs of this appeal are assessed to Plaintiff/Appellee Gregory
L. Smith, for which execution may issue if necessary.
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J. STEVEN STAFFORD, JUDGE
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