Nunn v. Tenn. Dep't of Corr.

• Citation: 547 S.W.3d 163
• Decision Date: 23 October 2017
• Docket Number: No. M2016–01518–COA–R3–CV,M2016–01518–COA–R3–CV
• Parties: Craig Robert NUNN v. TENNESSEE DEPARTMENT OF CORRECTION, et al.
• Court: Court of Appeals of Tennessee

547 S.W.3d 163

Craig Robert NUNN

v.TENNESSEE DEPARTMENT OF CORRECTION, et al.

No. M2016–01518–COA–R3–CV

Court of Appeals of Tennessee, AT NASHVILLE.

August 16, 2017 Session

FILED October 23, 2017

Application for Permission to Appeal Denied by Supreme Court March 15, 2018

David Louis Raybin, Nashville, Tennessee, for the appellant, Craig Robert Nunn.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, Scott C. Sutherland, Deputy Attorney General, and Brooke K. Schiferle, Assistant Attorney General, Nashville, Tennessee, for the appellees, Tennessee Department of Correction, and Herbert H. Slattery III, Attorney General.

Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin, and Kenny Armstrong, J., joined.

Brandon O. Gibson, J.

This case involves a sex offender's complaint for declaratory relief under state law and 42 U.S.C. § 1983 raising various constitutional and other challenges to the conditions imposed on him in accordance with his sentence to community supervision for life. The trial court found that most of the offender's constitutional claims were time-barred. The trial court reviewed the substantive merit of the remaining claims and found them meritless. As a result, the trial court granted the motion for summary judgment filed by the defendants, the Tennessee Department of Correction and the Tennessee Attorney General. The offender raises numerous issues on appeal. We affirm in part, reverse in part, and remand for further proceedings.

I. FACTS & PROCEDURAL HISTORY

On January 14, 1999, Craig Nunn pled guilty to four counts of aggravated sexual battery against four minor children who were patients at a hospital where he worked as a physician. The four incidents of aggravated sexual battery occurred between December 1997 and February 1998. Nunn received four concurrent sentences of twelve years to be served in the Tennessee Department of Correction. He was also sentenced to community supervision for life pursuant to Tennessee Code Annotated section 39–13–524, which, at the time, provided, in relevant part:

(a) In addition to the punishment authorized by the specific statute prohibiting the conduct, any person who, on or after July 1, 1996, commits a violation of § 39–13–502, § 39–13–503, § 39–13–504 [aggravated sexual battery], § 39–13–522, or attempts to commit a violation of any of these sections, shall receive a sentence of community supervision for life.¹

....

(c) The sentence of community supervision for life shall commence immediately upon the expiration of the term of imprisonment imposed upon the person by the court or upon the person's release from regular parole supervision, whichever first occurs.

(d)(1) A person on community supervision shall be under the jurisdiction, supervision and control of the Board of Paroles in the same manner as a person under parole supervision.² The board is authorized on an individual basis to establish such conditions of community supervision as are necessary to protect the public from the person's committing a new sex offense, as well as promoting the rehabilitation of the person.

....

Essentially, the lifetime supervision requirement of Tennessee Code Annotated section 39–13–524"imposes an additional set of restrictions and requirements on the offender after serving his or her entire sentence of incarceration." Ward v. State , 315 S.W.3d 461, 476 (Tenn. 2010). The Tennessee Supreme Court has described the lifetime community supervision requirement as "punitive in effect, requiring an offender to regularly report to a parole officer who is granted wide discretion in imposing supervisory requirements, and to pay a monthly fee."³ Id. at 474. Pursuant to a related statute, Tennessee Code Annotated section 39–13–526, a knowing violation of a condition of community supervision will constitute a separate criminal offense. Tenn. Code Ann. § 39–13–526(a)(4).

Approximately three months after Nunn pled guilty, on April 26, 1999, the Tennessee Board of Probation and Parole adopted "Sex Offender Directives" that established specialized conditions of community supervision for sex offenders. For example, the Sex Offender Directives required offenders to participate in counseling and polygraph tests and prohibited them from accessing the internet without approval or possessing alcohol. The Board of Probation and Parole granted supervising officers some discretion in imposing the conditions as deemed appropriate based on the particular offender's risks and needs.

Nunn was released from serving his twelve-year sentence on March 28, 2009. On that same date, Nunn was placed on community supervision for life. According to Nunn, as he was being released from prison, the institutional parole officer placed him on the sex offender community supervision regime over his objection. Nunn signed a "Community Supervision Certificate" agreeing to abide by the Sex Offender Directives adopted by the Board of Probation and Parole, but he wrote beside his signature "under protest." Days later, on March 31, 2009, Nunn met his supervising officer, who had him also sign a copy of the Sex Offender Directives containing the detailed list of specialized conditions of supervision for sex offenders. The Sex Offender Directives required Nunn to submit to curfews or electronic monitoring imposed by his supervising officer and to participate in counseling or treatment and polygraphs as deemed necessary. The Sex Offender Directives prohibited Nunn from possessing pornographic material, possessing alcohol, accessing the internet without permission from his supervising officer, working at an organization that provided services to minor children, or befriending anyone with minor children. The Sex Offender Directives provided that these conditions of supervision were "guidelines ... established for all offenders" and would apply to Nunn unless either the Board of Probation and Parole or his supervising officer and treatment provider determined otherwise, and if he did not agree with any condition, he could petition the Board for a modification.

Approximately eighteen months later, on September 29, 2010, Nunn filed a complaint for declaratory relief against the Board of Probation and Parole and the Tennessee Attorney General challenging the Sex Offender Directives as applied to him, on several grounds.⁴ Nunn's complaint described his suit as one "for declaratory relief pursuant to Tenn. Code Ann. § 29–14–102 [Tennessee's Declaratory Judgment Act] and a violation of civil rights pursuant to 42 U.S.C. § 1983." Nunn acknowledged that he was sentenced to community supervision for life but claimed that the conditions of his supervision were fixed at the time of his offense and could not be made more harsh or severe thereafter. He claimed that the Sex Offender Directives adopted in 1999, months after he pled guilty, could not be applied to his community supervision for life. Nunn asked the trial court to declare that this application of Tennessee Code Annotated sections 39–13–524 and –526 and the Sex Offender Directives violated numerous provisions of the United States and Tennessee Constitutions regarding ex post facto laws, due process, equal protection, cruel and unusual punishment, self-incrimination, and separation of powers. In addition to citing Tennessee's Declaratory Judgment Act, he asked the court to also grant him declaratory relief pursuant to 42 U.S.C. § 1983 in order to remedy these constitutional violations and "the deprivation of civil rights under color of state law." Nunn did not seek monetary damages except for an award of attorney's fees and litigation costs pursuant to 42 U.S.C. § 1988.

The Board of Probation and Parole and Attorney General filed an answer, and discovery ensued. Effective July 1, 2012, while the case was still pending, Tennessee Code Annotated section 39–13–524 was amended to provide that individuals subject to community supervision for life would be under the jurisdiction and supervision of the Tennessee Department of Correction rather than the Board of Probation and Parole. See 2012 Tenn. Pub. Acts, c. 727, § 5 (replacing "board of probation and parole" with "Department of Correction" in the statutory text). Consequently, on August 20, 2012, the parties entered into an agreed order providing that the Department of Correction would be substituted as a party defendant in the place of the Board of Probation and Parole. On October 10, 2014, the parties entered into another agreed order permitting Nunn to file an amended complaint.

Nunn's amended complaint stated that it was filed as a suit for declaratory judgment pursuant to Tennessee Code Annotated section 4–5–225 of the Uniform Administrative Procedures Act and for declaratory relief pursuant to 42 U.S.C. § 1983.⁵ Nunn's amended complaint set forth fifteen counts or claims alleging various violations of constitutional provisions, the Uniform Administrative Procedures Act, and 42 U.S.C. § 1983. Specifically, two of the counts addressed the Uniform Administrative Procedures Act. Twelve counts asserted the following constitutional violations:

1. Ex post facto violations under the United States and Tennessee Constitutions;

2. Separation of powers violation under the Tennessee Constitution;

3. Violation of his due process right to earn a living under the United States and Tennessee Constitutions;

4. Cruel and unusual punishment under the United States and Tennessee Constitutions;

5. Violation of equal protection under the United States Constitution;

6. Violation of the self-incrimination clauses of the United States and Tennessee Constitutions;

7. Void for vagueness under the United States and Tennessee Constitutions;

8. Unlawful bill of attainder under the United States and Tennessee Constitutions;

9. Additional ex post facto and separation of powers violations;

10. Violation of his right to travel under the privileges and immunities clause and due process clause of the United States

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