IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
February 9, 1999
DANIEL B. TAYLOR, ) Cecil W. Crowson
) Appellate Court Clerk
Plaintiff/Appellant, )
) Appeal No.
) 01-A-01-9707-CH-00338
VS. )
) Davidson Chancery
) No. 96-859-II
STATE OF TENNESSEE, )
JOHN DOE, STATE COORDINATOR )
OF ELECTIONS, MS. BOBBIE WHITE, )
SHELBY COUNTY REGISTRAR OF )
VOTERS; and CHARLES W. BURSON, )
ATTORNEY GENERAL, )
)
Defendants/Appellees. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE CAROL L. MCCOY, CHANCELLOR
DANIEL B. TAYLOR #102957
Northwest Correctional Center
Route 2, Box 660
Tiptonville, Tennessee 38079
Pro Se/Plaintiff/Appellant
JOHN KNOX WALKUP
Attorney General & Reporter
KEVIN STEILING
Senior Counsel
425 Fifth Avenue, North
Nashville, Tennessee 37243-0490
AFFIRMED AND REMANDED
BEN H. CANTRELL
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
CAIN, J.
OPINION
The only question presented in this complaint is whether a law making
all felonies infamous crimes can, upon conviction, be applied to crimes committed
before the date of the act. The Chancery Court of Davidson County dismissed the
plaintiff’s request for a declaratory judgment. We affirm.
I.
The plaintiff, Daniel B. Taylor, was convicted on October 6, 1982 of a
murder committed on September 20, 1980. On the date the crime was committed
murder was not an infamous crime. In 1981 the Tennessee legislature amended
Tenn. Code Ann. § 40-20-112 to make all felonies infamous crimes resulting in a loss
of the right to vote. Upon his conviction, Mr. Taylor was declared to be infamous. 1
Mr. Taylor sought a declaration that the law, as applied to him, violated
the ex post facto provisions of Article I § 17 of the Tennessee Constitution and Article
I § 10 of the United States Constitution. He also relied on Article I § 5 of the
Tennessee Constitution and its guarantee of the right of suffrage. The State filed a
motion to dismiss for failure to state a claim. The chancellor analyzed all three claims
and granted the State’s motion.
II.
We will deal with Article I § 5 of the Tennessee Constitution first. That
section provides that the right of suffrage “shall never be denied to any person entitled
thereto, except upon conviction by a jury of some infamous crime, previously
ascertained and declared by law . . . .” Mr. Taylor asserts that this section means that
the crime must be infamous at the time it was committed. In Gaskin v. Collins, 661
S.W.2d 865 (Tenn. 1983) our Supreme Court declared that the act in question was
1
The State did not assert that this proceeding is a collateral attack on Mr. Taylor’s original
conviction. We will not address it here.
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unconstitutional when applied to convictions that occurred prior to the act’s effective
date. The Court said that Article I § 5 “prohibits the General Assembly from
retroactively disenfranchising convicted felons.” 661 S.W.2d at 868.
What about convictions that occurred after the act? The State argued
in Gaskin that the legislature had the power to disenfranchise any convicted felon by
its simple act -- regardless of whether the legislature acted before or after the
conviction. The Supreme Court rejected that argument and said the phrase
“previously ascertained and declared by law in Article I § 5 qualifies the words
“infamous crimes” and “places a time limitation on when an act shall be declared
infamous; that is, before conviction of the crime by a jury.” 661 S.W.2d at 867
(emphasis added). We are of the opinion that Gaskin resolves this question in favor
of the State.
III.
The United States Constitution prohibits the states from passing ex post
facto laws, Article I § 10, and the Tennessee Constitution echoes that prohibition as
“contrary to the principles of a free Government.” Article I § 11. Under both charters,
however, the prohibitions run only against penal laws, laws that punish “an act which
was not punishable at the time it was committed or adds punishment, or changes the
rules of evidence by which less or different testimony is sufficient to convict than was
previously required.” State v. Young, 904 S.W.2d 603 at 607 (Tenn. Cr. App. 1995).
See Collins v. Youngblood, 497 U.S. 37 (1990); Kaylor v. Bradley, 912 S.W.2d 728
(Tenn. App. 1995).
In Goats v. State, 364 S.W.2d 889 (Tenn. 1963), the Court said that the
revocation of a drivers license by the Department of Safety after the driver had been
convicted of driving under the influence was not a part of the trial or conviction for a
criminal act. Thus, the statute giving the Department of Safety that power did not
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violate the separation of powers. In State v. Conley, 639 S.W.2d 435 (Tenn. 1982),
the Court said that allowing the State to declare the defendant an habitual offender
and to bar him from driving a motor vehicle did not amount to double jeopardy, even
though the convictions used to invoke the Habitual Offenders Act also allowed the
suspension of his license for an indefinite period of time. The Court said that a matter
is criminal (thus subjecting the defendant to jeopardy) only if imprisonment or the
assessment of a fine may follow conviction. 639 S.W.2d at 436. The courts thus
make a distinction between criminal statutes and remedial statutes that do nothing
more than deprive the defendant of a privilege. 639 S.W.2d at 437.
We think the laws disenfranchising convicted felons are simply remedial
statutes and are not laws that invoke or increase criminal penalties. Therefore, they
are not ex post facto laws within the prohibition of the State or Federal Constitution.
We affirm the judgment of the trial court and remand the cause for any
further proceedings necessary. Tax the costs on appeal to the appellant.
____________________________
BEN H. CANTRELL
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
WILLIAM B. CAIN, JUDGE
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