McIntyre v. Traughber

• Decision Date: 24 June 1994
• Citation: 884 S.W.2d 134
• Parties: Steven McINTYRE, Plaintiff/Appellee, v. Charles TRAUGHBER, Chairman of the Tennessee Board of Paroles, Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 134

884 S.W.2d 134

Steven McINTYRE, Plaintiff/Appellee, v. Charles TRAUGHBER, Chairman of the Tennessee Board of Paroles, Defendant/Appellant.

Court of Appeals of Tennessee Middle Section, at Nashville.

June 24, 1994.

Published Pursuant to Tenn.Ct.App.R. 11.

Charles W. Burson, Atty. Gen. and Reporter, C. Anthony Daughtrey, Asst. Atty. Gen., for appellant.

David L. Raybin, Hollins, Wagster & Yarbrough, Nashville, for appellee.

OPINION

KOCH, Judge.

This appeal involves the efforts of a prisoner convicted of a sex crime to prevent the Board of Paroles from requiring him to obtain a certificate of safety before being released on mandatory parole. The prisoner filed a civil rights action in the Chancery Court for Davidson County alleging that the certification requirement could not be applied to him. The trial court, sitting without a jury, enjoined the board from requiring the prisoner to obtain a certificate of safety and awarded him $5,250 in attorney's fees and costs. We have determined that the board's appeal is now moot because the prisoner has been released from custody and his sentence has expired. Accordingly, we vacate the judgment and remand the case for further proceedings consistent with this opinion.

I.

In October 1976, a Dickson County jury found Steven McIntyre guilty of several criminal offenses, including one crime against nature charge. For the crime against nature conviction, Mr. McIntyre received an indeterminate sentence of not less than five years nor more than five years in the Tennessee State Penitentiary. This sentence was to be served after Mr. McIntyre served the sentences for his other convictions.

Tennessee's parole statutes authorized two types of parole in 1976 when Mr. McIntyre was convicted. The first type was "discretionary parole" which was available after the prisoner had served the minimum sentence required by the indeterminate sentence law; the second type was "mandatory parole" which was granted six months prior to the completion of the maximum sentence. ¹

Prisoners convicted of sex crimes received different scrutiny for parole than other prisoners. As a result of legislation enacted in 1957, no person convicted of a sex crime could be paroled "unless the Department of Mental Health, after an examination of such person, certifies to the Board of Pardons and Paroles that he could be released with safety to the public." ² In 1975 the Attorney General and Reporter advised the board that it should require certificates of safety for sex offenders released on both discretionary and mandatory parole. ³ The General Assembly later enacted different certification requirements for sex offenders, but these requirements did not apply to crimes committed prior to July 1, 1982 ⁴ and thus did not apply to Mr. McIntyre who was convicted in October 1976.

The board denied Mr. McIntyre's request for discretionary parole in November 1990. Thereafter, because of sentence credits earned while he was incarcerated, Mr. McIntyre's mandatory parole date changed from January 1992 to September 15, 1991. Four months before his mandatory parole date, Mr. McIntyre filed this suit seeking to prevent the board from requiring him to obtain the certificate required by Tenn.Code Ann. § 40-28-116(a)(2) (Supp.1993) as a condition to being released on mandatory parole. ⁵ The board responded by asserting that Mr. McIntyre would not be judged by the standards in Tenn.Code Ann. § 40-28-116(a)(2) but rather by the "standard under which the prisoner was sentenced." ⁶

The trial court granted Mr. McIntyre a judgment on the pleadings after determining that applying Tenn.Code Ann. § 40-28-116(a)(2) retroactively to Mr. McIntyre would violate Article I, Section 11 of the Tennessee Constitution which prohibits ex post facto laws. Accordingly, the trial court enjoined the board from applying Tenn.Code Ann. § 40-28-116(a)(2) or Tenn.Code Ann. § 40-28-117(b)(6) (1990) to Mr. McIntyre and awarded him $5,250 in attorneys fees under 42 U.S.C. § 1988 (Supp.1994). The trial court did not, however, specifically enjoin the board from requiring Mr. McIntyre to comply with any certification requirement that might have existed when he was convicted in 1976.

The board appealed to the Court of Criminal Appeals two days after Mr. McIntyre became eligible for mandatory parole. Mr. McIntyre was not released until he had served the remainder of his sentence because he did not obtain a certificate of safety. Following his release, Mr. McIntyre moved to dismiss the board's appeal because of mootness. Rather than acting on the motion, the Court of Criminal Appeals transferred the case to this court on the ground that the appeal was not within its subject matter jurisdiction. McIntyre v. Traughber, App. No. 01-C-01-9110-CH-00318, slip op. at 8 (Tenn.Crim.App. Dec. 31, 1992).

II.

The doctrine of justiciability prompts courts to stay their hand in cases that do not involve a genuine and existing controversy requiring the present adjudication of present rights. State ex rel. Lewis v. State, 208 Tenn. 534, 537, 347 S.W.2d 47, 48 (1961); Dockery v. Dockery, 559 S.W.2d 952, 954 (Tenn.Ct.App.1977). Thus, our courts will not render advisory opinions, Super Flea Mkt. v. Olsen, 677 S.W.2d 449, 451 (Tenn.1984); Parks v. Alexander, 608 S.W.2d 881, 892 (Tenn.Ct.App.1980), or decide abstract legal questions. State ex rel. Lewis v. State, 208 Tenn. at 538, 347 S.W.2d at 49.

Cases must be justiciable not only when they are first filed but must also remain justiciable throughout the entire course of the litigation, including the appeal. Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990); Kremens v. Bartley, 431 U.S. 119, 128-29, 97 S.Ct. 1709, 1715 (1977); 13A Charles A. Wright et al., Federal Practice and Procedure §§ 3533, 3533.10 (2d ed. 1984) ("Federal Practice and Procedure"). The concept of mootness deals with the circumstances that render a case no longer justiciable. Davis v. McClaran, App. No. 01-A-01-9304-CH-00164, slip op. at 2, 19 T.A.M. 1-3, 1993 WL 523667 (Tenn.Ct.App. Dec. 10, 1993), perm. app. granted (Tenn. Mar. 28, 1994) ("[m]ootness is a doctrine of justiciability"); Federal Practice and Procedure § 3533, at 211.

A moot case is one that has lost its character as a present, live controversy. McCanless v. Klein, 182 Tenn. 631, 637, 188 S.W.2d 745, 747 (1945); Krug v. Krug, 838 S.W.2d 197, 204 (Tenn.Ct.App.1992); LaRouche v. Crowell, 709 S.W.2d 585, 587 (Tenn.Ct.App.1985). The central question in a mootness inquiry is whether changes in the circumstances existing at the beginning of the litigation have forestalled the need for meaningful relief. Federal Practice and Procedure § 3533.3, at 261. A case will generally be considered moot if it no longer serves as a means to provide relief to the prevailing party. Church of Scientology v. United States, 506 U.S. 9, ----, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992); Knott v. Stewart County, 185 Tenn. 623, 626, 207 S.W.2d 337,338-39 (1948); Massengill v. Massengill, 36 Tenn.App. 385, 388-89, 255 S.W.2d 1018, 1019 (1952).

Thus, a suit brought to enjoin a particular act becomes moot once the act sought to be enjoined takes place. Badgett v. Broome, 219 Tenn. 264, 268, 409 S.W.2d 354, 356 (1966); Malone v. Peay, 157 Tenn. 429, 433, 7 S.W.2d 40, 41 (1928). Similarly, an appeal concerning the legality of a prisoner's incarceration becomes moot upon the prisoner's unconditional release. State ex rel. Lewis v. State, 208 Tenn. at 538, 347 S.W.2d at 49; State v. Doe, 813 S.W.2d 150, 152 (Tenn.Crim.App.1991).

Tennessee's courts have recognized several exceptions to the mootness rule. The two most common exceptions involve: (1) issues of great public interest and importance to the administration of justice, Walker v. Dunn, 498 S.W.2d 102, 104 (Tenn.1972); New Rivieria Arts Theatre v. State ex rel. Davis, 219 Tenn. 652, 658, 412 S.W.2d 890, 893 (1967), and (2) issues capable of repetition yet evading review. LaRouche v. Crowell, 709 S.W.2d at 587. Many times the courts combine these exceptions. Bemis Pentecostal Church v. State, 731 S.W.2d 897, 903 (Tenn.1987); New Rivieria Arts Theatre v. State ex rel. Davis, 219 Tenn. at 658, 412 S.W.2d at 893; Dockery v. Dockery, 559 S.W.2d at 955.

III.

Decisions concerning whether to take up cases that fit into one of the exceptions to the mootness doctrine are discretionary with the appellate courts. Dockery v. Dockery, 559 S.W.2d at 954. We have decided that our discretion in this case should be guided by State ex rel. Lewis v. State where the Supreme Court determined that an appeal in a case challenging the constitutionality of a statute became moot upon the prisoner's unconditional release from custody. State ex rel. Lewis v. State, 208 Tenn. at 538, 347 S.W.2d at 49.

Mr. McIntyre no longer has a personal stake in the outcome of this litigation. He has served his entire sentence and has been released from custody. He can no longer be incarcerated for his 1976 crime against nature conviction, and the courts cannot provide him with any relief greater than the release he has already obtained by serving his entire sentence.

We have also determined that this case does not involve one of the exceptional situations that would warrant addressing the appeal on its merits. The record before us does not reveal how many, if any, other prisoners are currently incarcerated for sex crimes committed prior to July 1, 1982. Thus, we have no way to determine whether the issues in this case are of great importance to the administration of justice or whether cases like this will occur again and evade effective judicial review.

The ordinary practice in disposing of a case that has become moot on appeal is to vacate the judgment and remand the case with directions that it be dismissed. Lewis v. Continental Bank Corp., 494 U.S. at 482, 110 S.Ct. at 1256; United States Dep't of Treasury v. Galioto, 477 U.S. 556, 560, 106...