Crutchfield v. Collins

• Decision Date: 06 October 1980
• Citation: Crutchfield v. Collins, 607 S.W.2d 478 (Tenn. App. 1980)
• Parties: Amos CRUTCHFIELD et al., Plaintiffs-Appellees, v. David COLLINS et al., Defendants-Appellants.
• Court: Tennessee Court of Appeals

Page 478

607 S.W.2d 478

Amos CRUTCHFIELD et al., Plaintiffs-Appellees, v. David COLLINS et al., Defendants-Appellants.

Court of Appeals of Tennessee, Middle Section.

Oct. 6, 1980 Certiorari Denied by Supreme Court Oct. 31, 1980.

James S. Roach, Thomas M. Daniel, Memphis, for plaintiffs-appellees.

Robert B. Littleton, Deputy Atty. Gen., John C. Zimmerman, Asst. Atty. Gen., Nashville, Carroll C. Johnson, Asst. Shelby County Atty., Memphis, for defendants-appellants.

OPINION

TODD, Judge.

This suit relates to the right to vote of three plaintiffs convicted of infamous crimes. The Chancellor ruled in the affirmative and the defendants election officials have appealed. There was an effort to convert this case into a class action, but the Chancellor declined to do so, and no complaint is made on appeal as to this decision.

The three plaintiffs are registered voters in Shelby County, Tennessee and are incarcerated in the Shelby County Penal Farm pursuant to sentences in Shelby County Criminal Court upon convictions of the offense of petty larceny. The dates of the convictions are 1980, 1978 and 1971.

Article 1, Sec. 5 of the Constitution of Tennessee reads as follows:

Elections to be free and equal-Right of suffrage.-The elections shall be free and equal, and the right of suffrage, as hereinafter declared, 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, and judgment thereon by court of competent jurisdiction.

Article IV, Sec. 1-2 of the Constitution of Tennessee read in pertinent part as follows:

Sec. 1. Right to vote-Election precincts-Military duty.-Every person, being eighteen years of age, being a citizen of the United States, being a resident of the State for a period of time as prescribed by the General Assembly, and being duly registered in the county of residence for a period of time prior to the day of any election as prescribed by the General Assembly, shall be entitled to vote in all federal, state, and local elections held in the county or district in which such person resides. All such requirements shall be equal and uniform across the state, and there shall be no other qualification attached to the right of suffrage.

The General Assembly shall have power to enact laws requiring voters to vote in the election precincts in which they may reside, and laws to secure the freedom of elections and the purity of the ballot box.

Sec. 2. Right of suffrage may be excluded for crime.-Laws may be passed excluding from the right of suffrage persons who may be convicted of infamous crimes.

Prior to 1972, T.C.A. § 40-2712 read as follows:

Disfranchisement by conviction.-Upon conviction of the crimes of abusing a female child, arson and felonious burning, bigamy, burglary, felonious breaking and entering a dwelling house, felonious breaking into a business house, outhouse other than a dwelling house, bribery, buggery, counterfeiting, violating any of the laws to suppress the same, forgery, invest, larceny, horse-stealing, perjury, robbery, receiving stolen property, rape, sodomy, stealing bills of exchange or other valuable papers, subornation of perjury, and destroying a will, it shall be part of the judgment of the court that the defendant be infamous, and be disqualified to exercise the elective franchise and no person so convicted shall be disqualified to testify in any action, civil or criminal by reason of having been convicted of any of the above offenses, and the fact of conviction for any one or more of the foregoing crimes may only be used as a reflection upon his credibility as a witness. (Code 1858, § 5226 (deriv. Acts 1829, ch. 23, § 71); Shan., § 7199; mod. Code 1932, 11762; Acts 1941, ch. 64, § 1; C.Supp. 1950, § 11762; Acts 1953, ch. 194, § 1.) (Emphasis supplied)

By Chapter 740, § 4, Acts of Adjourned Session 1972, the foregoing code section was amended to read as follows:

Disfranchisement by conviction.-Upon conviction of the crimes of abusing a female child, arson and felonious burning, bigamy, burglary, felonious breaking and entering a dwelling house, felonious breaking into a business house, outhouse other than a dwelling house, bribery, buggery, counterfeiting, violating any of the laws to suppress the same, forgery, incest, larceny, horse-stealing, perjury, robbery, receiving stolen property, rape, sodomy, stealing bills of exchange or other valuable papers, subornation of perjury, and destroying a will, it shall be part of the judgment of the court that the defendant be infamous, and no person so convicted shall be disqualified to testify in any action, civil or criminal by reason of having been convicted of any of the above offenses, and the fact of conviction for any one or more of the foregoing crimes may only be used as a reflection upon his credibility as a witness. (Code 1858, § 5226 (deriv. Acts 1829, ch. 23, § 71); Shan., § 7199; mod. Code 1932, 11762; Acts 1941, ch. 64, § 1; C. Supp. 1950, § 11762; Acts 1953, ch. 194, § 1; 1972 (Adj.S.), ch. 740, § 4(70).) (Emphasis supplied)

By subsequent code enactment the title of the above statute has been changed to: "Judgment of Infamy-Competency as Witness", but the text of the section is unchanged since 1972.

None of the judgments of convictions of the three plaintiffs contains a declaration of infamy or disfranchisement as required by the statutes quoted above.

The Chancellor was of the opinion that the Constitution empowers the Legislature to specify disfranchisement as part of the penalty for crimes declared by law to be infamous crimes, but that the Constitution was not self-executing in this regard, so that loss of voting rights by conviction could be lost only as provided by statute. Accordingly, the Chancellor ordered:

2. That the defendant, David Collins, State Election Coordinator, submit a plan to this Court within four (4) days which will insure that the plaintiffs will be allowed to vote in future elections in the State of Tennessee;

3. That after the approval of said voting plan by the plaintiffs and this Court, that said plan will be implemented by the defendants with all deliberate speed;

The issue for review is not as stated by appellants, but is: Are the three plaintiffs entitled to vote in the State of Tennessee?

Appellants insist that constitutional provisions are presumed to be mandatory, citing State ex rel. v. Burrow, 119 Tenn. 376, 104 S.W. 526 (1907) which states:

Presumably they are all mandatory. Certainly no provision will be construed otherwise, unless the intention that it shall be unmistakably and conclusively appears upon its face.

Id. at p. 381, 104 S.W. 526. (Emphasis supplied)

In the judgment of this Court, the "intention otherwise" unmistakably...