Or Is a Felony Conviction a Life Sentence for Losing Those Rights?

It hit her quickly, the way an earthquake hits. Mary’s[1] stomach was queasy, her face flushed, her heart raced. But it wasn’t the flu, it was love, enveloping her like a Bay Area fog and blinding her to everything but him as she thought this man two years older than her freshly-kissed eighteen years had keys to the entire world.

However, keys were not needed when he and the alcohol in her convinced her it would be “in good fun” to open unlocked car doors in neighboring counties, take items from the cars, and sell them. The coldness of the handcuffs lifted the fog and eventually she matured to the reality of the bad news she was dating. Her rash of youthful stupidity resulted in the scar of five felony convictions.

Mary eventually married someone else, earned her M.B.A. degree, and ran a successful business and taught Sunday School for the next thirty years and was loved and respected throughout her small Tennessee town. She had three kids, and the last one was diagnosed with Down Syndrome and while initially the diagnosis was a shock, little John revealed a depth of love Mary never knew she had or could receive.

Unfortunately, Mary’s husband suddenly died. After the shock wore off slightly, she hired an attorney with whom she volunteered at the local food bank to help her open an estate for her husband. The attorney also suggested filing a petition to be named conservator over her now-adult child who is disabled. Both petitions were filed the next week and Mary asked to be named fiduciary in both.

Except Mary cannot legally be a fiduciary. Or can she?

Loss of the Right to Be a Fiduciary

There are several statutes, collectively referred to as specific disability statutes,[2] which remove from a felon certain rights other citizens enjoy. A few of these statutes are well-known and often litigated and discussed, such as the loss of the right to vote[3] or to carry a gun.[4] Snuggled inconspicuously among these more famous disability statutes is a one-sentence law, Tenn. Code Ann. § 40-20-115, which has changed little since Tennessee’s pre-Civil War days:

The effect of a sentence of imprisonment in the penitentiary is to put an end to the right of the inmate to execute the office of executor, administrator or guardian, fiduciary or conservator, and operates as a removal from office.

While no case has specifically analyzed this felon fiduciary statute, the Tennessee Supreme Court has mentioned in dicta that this statute removes the right to be a fiduciary from a felon for life. The first appearance was in the 1998 case Cole v. Campbell,[5] a first-impression case in which our state’s highest court weighed whether a convicted felon had standing under the Public Records Act to seek public records. Both the Chancery Court for Hickman County and the Tennessee Court of Appeals, Middle Section, decided a person rendered infamous by a felony conviction was, as a result, not a citizen. Since the Public Records Act opened public records for access by “citizens of Tennessee,” both courts concluded the felon did not have standing under the Act to request the desired records.[6]

The Supreme Court reversed. Finding the Public Records Act itself did not specifically define citizen and did not expressly block a felon from its use,[7] the Court looked for any other statutory provisions in Tennessee restricting a felon from the right to access public records. Relying upon and quoting an extensive Vanderbilt Law Review article titled “The Collateral Consequences of a Criminal Conviction,”[8] the Court described the two types of statutes in this country that historically inflicted upon the convicted felon collateral consequences of the crime beyond the actual criminal sentence:

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 ….”
….
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. 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.[9]

The Court continued with Tennessee-specific statement:

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, the loss of the right to hold public office, and the loss of the right to serve as a fiduciary. Persons convicted of certain violent criminal offenses are prohibited from carrying handguns. The loss of these specific rights of citizenship may be restored pursuant to a statutory proceeding for “restoration of citizenship.”[10]

While the court found and listed some specific disability statutes, including the felon fiduciary statute, it did not find one expressly preventing a felon from seeking public records. Recognizing a punishment cannot be inflicted without statutory authority, the Court concluded the felon was free to access public records as allowed by the Public Records Act because there was no explicit statute stating otherwise.[11]

The Tennessee-specific portion of the Court’s opinion quoted above did not unequivocally state the rights listed were lost for life. However, four years later the Tennessee Supreme Court, in State v. Johnson,[12] condensed the Cole dicta into a concise paragraph clearly coupling losing the right to be a fiduciary with other rights lost for life:

Initially, we observe that Tennessee has “specific disability statutes,” which “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.” Specific disability statutes include the loss of the right to vote, the loss of the right to hold public office, the loss of the right to serve as a fiduciary, and the loss of the right to possess a handgun.[13]

This summarizing statement has been echoed in dicta in opinions issued in the last three years by this state’s Court of Appeals[14] and Court of Criminal Appeals.[15]

Can the Right Be Restored?

Additionally, while the Cole v. Campbell court did comment that the lost rights could be restored under the restoration of citizenship procedures, a ruling in a later case raises the question on whether losing the right to be a fiduciary is a permanent consequence unable to be restored.

The statutory provision for restoring lost rights of citizenship is Tenn. Code Ann. § 40–29–101 et seq, known as the “Restoration Statute,”[16] which states in part, “Persons rendered infamous or deprived of the rights of citizenship by the judgment of any state or federal court may have their full rights of citizenship restored by the circuit court.”[17] Subsequent sections provide specific procedures, exclusions, and requirements, including notification to the District Attorney,[18] for petitioning the circuit court for a restoration of rights.

However, in the 2012 Court of Criminal Appeals case In re Cox,[19] two convicts had their rights of citizenship restored, including what they thought was a restoration of their right to be a bondsman or bondsman’s agent which had been removed by a specific disability statute upon their convictions. The Criminal Court of Shelby County, sitting en banc, ruled otherwise, stating the right to write bonds was not one of the rights of citizenship restored.[20] The appellate court agreed, finding the statute removing the right of a convicted felon to be a bondsman did not include a provision stating the right could be restored, and, in fact, no other statute did as well.[21] Therefore, the court ruled that losing the right to be a bondsman was a permanent loss.[22]

Based on this reasoning of In Re Cox, one could extrapolate the removal of the right to be a fiduciary cannot be restored and is lost for life. There is no key provision in the felon fiduciary statute unlocking the Restoration Statute as there is, for example, in the statute removing the right to seek and hold public office, which includes the language “unless and until that person’s citizenship rights have been restored by a court of competent jurisdiction.”[23] Further, there is not a separate statute providing an option to restore the right to be a fiduciary as there is for the right to vote[24] and the right to apply for a handgun permit.[25]

The courthouse doors have apparently slammed against Mary’s desire to be named conservator over her son and the personal representative of her husband’s estate.

The Statute Viewed by the Ordinary Meaning of Its Language

While the felon fiduciary statute has been grouped-by-association in dicta with other statutes removing rights for life, a closer look at the plain language of the statute reveals phrases quite different from the words chosen for the other specific disability statutes. Do these differences signal an intention of the General Assembly contrary to the dicta of the appellate courts?

“Right of the Inmate”
The General Assembly’s use of the term “inmate” is unique among the state’s specific disability statutes. The word inmate is not defined in Tennessee code, but Black’s Law Dictionary defines it as “A person confined in a prison, hospital, or similar institution,”[26] which speaks only to the present status of an individual. Conversely, other specific disability statutes employ the words “convicted” or “conviction,” which depict a permanently stained status:

• Loss of right to be a juror: “Persons convicted of a felony or any other infamous offense …” are incompetent to act as jurors.[27]
• Loss of the right to vote: “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.”[28]
• Loss of the right to possess a handgun: It is a Class E felony for the one who “possesses a handgun and has been convicted of a felony.”[29]
• Loss of the right to hold public office: “A person who has been convicted in this state of an infamous crime … shall be disqualified from qualifying for, seeking election to or holding a public office in this state …”[30]
• Loss of ability to be a bondsman or agent of one: “The following persons or classes shall not be bail bondsmen or agents of bail bondsmen or surety companies and shall not directly or indirectly receive any benefits from the execution of any bail bond: jailers, attorneys, police officers, convicted felons, …”[31]
• Loss of ability to work as a police officer or sheriff: Listed qualifications to be either include “[n]ot have been convicted of or pleaded guilty to or entered a plea of nolo contendere to any felony charge …”[32]

The word “convict” was in the original text of the statute instead of “inmate,”[33] but the definition of convict also speaks to present status: “A person who has been found guilty of a crime and is serving a sentence of confinement for that crime; a prison inmate.”[34] The phrase “convicted felon” or any other phrase with a literal definition of permanent status has never appeared in the felon fiduciary statute.

“A sentence of imprisonment in the penitentiary”
If the word “inmate” is not interpreted literally, another part of the statute raises the question of whether all convicted felons lose the right to be a fiduciary. The phrase “the effect of a sentence of imprisonment in the penitentiary” is now unique among the other specific disability statutes. Since felony sentences include non-penitentiary options, is the use of “penitentiary”[35] in the statute an intentional prerequisite? This was the exact distinction considered by the Tennessee Court of Appeals in State v. Black[36] as part of its determination of whether or not the specific disability statute removing the right to seek and hold public office applied on the facts of the case.

At the time of the crime in Black, Tenn. Code Ann. § 40-20-114 stated in part, “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 ….”[37] The felon in State v. Black had his right to vote restored by the trial court but was denied restoration of his right to hold public office and appealed that decision.[38] The Court of Appeals initially ruled that the felon had actually never lost his right to seek and hold public office, reasoning that since his sentencing form indicated sentences to both the Tennessee Department of Correction and a community-based alternative, “a sentence to community-based alternative sentencing is not a sentence to the penitentiary”[39] and therefore the penitentiary requirement of the statute was never met.[40] However, on a petition to rehear, the court learned that the felon’s sentence was actually to the Tennessee Department of Correction, but he was immediately placed on probation with community service as a condition to the probation.[41] Even though the felon never spent as much as an hour in the penitentiary, the court reversed itself and ruled his right to seek and hold public office was indeed forfeited by the specific disability statute upon his sentence to the penitentiary.[42]

If the court appointing a fiduciary does not construe the word “inmate” literally, information regarding the proposed fiduciary’s criminal record and the actual sentence is therefore apparently required to determine whether the felon can serve as a fiduciary at all. The Tennessee Criminal Sentencing Reform Act of 1989 not only allows sentencing options other than to a penitentiary, such as work release, sentence to the local jail, and payment of fines and/or restitution,[43] it commands that one convicted of a felony that carries a sentence of one to three years “shall not be sentenced to serve in the department of correction” in certain situations.[44] The threshold increases to six years for defendants convicted in Davidson and Shelby counties.[45] With these various multiple and alternative sentencing options, one must assume the General Assembly intentionally chose the
penitentiary qualifier, raising some unexplained inconsistencies as noted by Neil P. Cohen in a 1974 Tennessee Law Review article:

If the purpose of the provision is to recognize that a prisoner’s confinement precludes an effective performance of the specified functions, it should also include inmates in other institutions who are equally restrained. If the purpose of the law is to recognize the greater moral risk posed by persons convicted of more serious offenses, it ignores those misdemeanors which do not subject the offender to imprisonment in the penitentiary but which clearly involve moral turpitude, and yet includes felonies which involve no moral turpitude.[46]

The Statute Viewed through the Spectacles of History

[Author’s note: I must recognize and thank Vincent McGrath, Laura Sheets, and Allison DeFriese of the Tennessee State Library and Archives, and Eddie Weeks of the Tennessee General Assembly’s Legislative Library. All of these persons were impressively enthusiastic in providing me help with researching the felon fiduciary statute’s history.]

Given these glaring differences in wording and yet its attachment in dicta to rights lost for life, is the felon fiduciary statute simply a stowaway statute, mistakenly swept up with the other famous disability statutes well-travelled in the appellate system? Perhaps not.

The roots of all of these specific disability laws are anchored deep in history. Beginning in ancient Greece and Rome and extending throughout civilized history to modern Europe and colonial America, a criminal suffered numerous collateral consequences of the crime committed.[47] Through early concepts such as infamy and outlawry,[48] these penalties ranged from stripping the criminal of citizenship rights, such as the right to vote or make speeches,[49] to viewing the criminal as so outside the protection of the law that he could be killed without punishment.[50] Through the concept of attainder, modern England imposed corruption of blood, forfeiture of property (in theory it would escheat to the king), and the loss of civil rights (“civil death”),[51] and Colonial America parroted the English system for certain crimes.[52] Even though the new United States Constitution eliminated forfeiture and corruption of blood,[53] states were free to pass their own “civil death” statues, and several did.

Tennessee did not pass a broad civil death statute, but it did pass the specific disability statutes. The felon fiduciary statute was one of those but did not appear in Tennessee law until 1858 in the then-termed “Code of Tennessee,” which was Tennessee’s first legislative codification of laws.[54] In 1857, in response to then-governor (later U.S. Senator and U.S. President) Andrew Johnson’s edict to improve the judicial system, the 32nd General Assembly formed a joint committee of three Senators and five Representatives to review and submit to the legislative body a singular code of laws.[55] Return J. Meigs and William F. Cooper, appointed by the legislature in 1852 to review and organize the scattered laws in this state into one code of laws, had developed collaborative differences, and each one instead wrote his own separate portion.[56] The newly appointed “Joint Code Commission” worked to review and combine the work of Meigs and Cooper, and throughout the winter of 1857 and spring of 1858 portions of this “revised code,” as it was referred to during these sessions, were read to the General Assembly and adopted.[57] While most of the 1,150-page code[58] were revisions or interpretations of existing law, up to one hundred sections were written or suggested by members of the Joint Code Committee.[59] Since the felon fiduciary statute has no citation to a public act, it is possible this law was simply included within the new Code adopted by the legislature.

This Code of 1858, as it is now referenced, may reveal the original intent of the felon fiduciary statute as the language differences discussed earlier were apparent in the original code as well. While the felon fiduciary statute, located in the chapter titled, “Of the Judgment in Criminal Actions, and Its Consequences”, stated, “The effect of a sentence of imprisonment in the penitentiary is to put an end to the right of the convict …,”[60] just a few sentences prior in the same chapter were sections removing the right to give evidence or exercise the elective franchise “upon conviction” of specified infamous crimes,[61] and disqualifying those “convicted of a felony” from holding state office.[62] Perhaps the statute’s original intention was indeed only to immediately and automatically remove the right to be a fiduciary from a felon serving time in the penitentiary without having to follow any statutory resignation procedures.[63]

Since 1858 the felon fiduciary statute has remained intact with two exceptions. As stated earlier, the 1982 Replacement reflected a change in wording from “convict” to “inmate”.[64] In 2013, as part of several revisions of the conservatorship statutes, the words “fiduciary or conservator” were added to “executor, administrator or guardian.”[65]

Conclusion

So, can our fictitious felon Mary serve as a conservator for her adult disabled child and as a personal representative of her husband’s estate? Did the Tennessee Supreme Court really intend to signal that the right of a felon to be a fiduciary is removed for life upon conviction? If so, when the General Assembly added the words “fiduciary or conservator,” did it intend to forever prevent a freed felon from serving as an officer of a corporation, a partner, an agent, or another fiduciary such as a power of attorney?[66] Or, was the felon fiduciary statute merely serving as an immediate, procedure-free instrument to remove those currently incarcerated in state prison from the office of their fiduciary positions? If so, are they automatically restored to their fiduciary positions upon release from the state pen?

Interpretation and clarification of this law is best left to the appellate courts and the General Assembly. In the meantime, for the attorney representing a client desiring to be a conservator over the person or property of a person with a disability, the question must be asked “Have you ever been convicted of a felony?” as Tenn. Code Ann. § 34-3-104 requires the answer to be stated in the petition.[67] For the attorney representing someone wanting to be a personal representative of an estate, a guardian, or other fiduciary role, asking the question and informing the court of all the details if the answer is yes is a prudent best practice.

Notes

1. Mary is a fictitious character.
2. Walter Matthews Grant et al., “Special Project, The Collateral Consequences of a Criminal Conviction,” 23 Vand. L. Rev. 929, 951 (1970)[hereinafter “Special Project”].
3. Tenn. Code Ann. § 40-20-112 (2014).
4. Tenn. Code Ann. § 39-17-1307(c)(1) (2014).
5. Cole v. Campbell, 968 S.W.2d 274 (Tenn. 1998).
6. Id. at 275.
7. Id.
8. Id. at 276.
9. Id. (quoting Special Project, supra note 2, at 950)(brackets in original)(internal citations omitted).
10. Id. (statutory references omitted)(emphasis added).
11. Id. at 277.
12. State v. Johnson, 79 S.W.3d 522 (Tenn. 2002).
13. Id. at 527(quoting Cole v. Campbell, supra note 5, at 276)(internal citations and statutory references omitted)(emphasis added).
14. See Blackwell v. Haslam, No. M2012-01991-COA-R3CV, 2013 WL 3379364 at *12 (Tenn. Ct. App. June 28, 2013), appeal denied (Oct. 16, 2013).
15. See State v. Baltimore, No. W2013-01599-CCA-R3CD, 2014 WL 1921320 at *2 (Tenn. Crim. App. May 13, 2014), appeal denied (Sept. 19, 2014); In re Cox, 389 S.W.3d 794, 798 (Tenn. Crim. App. 2012), appeal denied (Nov. 21, 2012).
16. Blackwell, 2013 WL 3379364 at *11.
17. Tenn. Code Ann. § 40-29-101(a) (2014).
18. Tenn. Code Ann. § 40-29-105 (2014).
19. In re Cox, 389 S.W.3d 794 (Tenn. Crim. App. 2012) appeal denied (Nov. 21, 2012).
20. Id. at 797.
21. Id. at 799-800.
22. Id. at 801.
23. Tenn. Code Ann. § 40-20-114(a) (2014).
24. Tenn. Code Ann. § 40-29-202 (2014).
25. Tenn. Code Ann. § 39-17-1351(j)(3) (2014).
26. Black’s Law Dictionary (9th ed. 2009).
27. Tenn. Code Ann. § 22-1-102 (2014).
28. Tenn. Code Ann. § 40-20-112 (2014).
29. Tenn. Code Ann. § 39-17-1307(c)(1) (2014).
30. Tenn. Code Ann. § 40-20-114(a) (2014).
31. Tenn. Code Ann. § 40-11-128 (2014).
32. Tenn. Code Ann. § 38-8-106(4) (2014) (police officer) & Tenn. Code Ann. § 8-8-102(a)(5) (2014) (sheriff).
33. There is no reference to a public act or compiler note for the felon fiduciary statute that explains the change. The word “inmate” first replaced “convict” in the 1982 Replacement Volume. Several statutes during the late 1990’s have compiler’s notes that state that “inmate” replaced “convict” for “reasons of stylistic conformity.” See e.g. Tenn. Code Ann. 41-21-224 (1999).
34. Black’s Law Dictionary (9th ed. 2009)(emphasis added).
35. See Tenn. Code Ann. § 41-1-101(b) (definition of “penitentiary”).
36. State v. Black, No. M2000-02935-COA-R3-CV, 2002 WL 1364043 (Tenn. Ct. App. Sept. 26, 2002).
37. Id. at *4. The General Assembly amended this statute in 2007 by, among other changes, removing any requirement of a sentence to a penitentiary. (2007 Tenn. Pub. Acts, c. 325, § 1, eff. July 1, 2007). However, the legislature left the felon fiduciary statute alone.
38. Id. at *2.
39. Id. at *4.
40. Id. at *12.
41. State v. Black, No. M2000-02935-COA-R3-CD, 2002 WL 31126693 at *1 n.1 (Tenn. Ct. App. Sept. 26, 2002).
42. Id. at *1 (The court still reversed the trial court by ruling the right was restored when he was granted restoration of his right of citizenship.).
43. Tennessee Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-104 (c).
44. Id. at (b)(1). The certain situations involve whether or not the county has contracted with or intends to contract with the Department of Correction.
45. Id. at (b)(2). Those are the only two Tennessee counties in the 2010 census with populations greater than 477,811. http://www.census.gov/2010census/data (last accessed November 18, 2014).
46. Neil P. Cohen, “Tennessee Civil Disabilities: A Systematic Approach,” 41 Tenn. L. Rev. 272.
47. For a comprehensive overview of the history of specific disability statutes, see Special Project, supra note 2, and Mirjan R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study, 59 J.Crim. L., Criminology & Police Sci. 347 (1968) [hereinafter Damaska].
48. Damaska, supra note 47, at 350-52.
49. Id. at 350-51.
50. Id. at 353.
51. “Special Project,” supra note 2, at 942-43.
52. Id. at 949. For a lengthy discussion on attainder and its related “bills of pains and penalties,” see United States v. Brown, 381 U.S. 437 (1965)).
53. Id. at 950 (exception was for crimes of treason but only for the life of the felon).
54. 5 Robert H. White, Messages of the Governors of Tennessee 1857-1869, 72 (1952). The next codification was seventy four years later, known as Shannon’s Code. In the preface for that version, Robert T. Shannon wrote of the 1858 code: “For its symmetry and beauty of analytical arrangement, compactness and brevity of expression, and clearness of meaning, said Code has justly taken first rank among the American Codes.”
55. Id. at 68-69.
56. Id. at 69-71.
57. Id. at 71.
58. Id. at 72.
59. Id. at 71.
60. Code of Tennessee § 5230 (Return J. Meigs & William F. Cooper, eds., E.G. Eastman & Co. 1858) (“Code of 1858”).
61. Id. at § 5226.
62. Id. at § 5227.
63. See Id. § 2237 (current version at Tenn. Code Ann. § 30-1-112(2014)). A specific removal procedure for conservators is found at Tenn. Code Ann. § 34-1-123(2014), and for personal representatives for estates at Tenn. Code Ann. § 30-1-151(2014).
64. See supra note 33.
65. 2013 Tenn. Pub.Acts, c. 435, § 33.
66. See Tenn. Code Ann. § 35-2-102
67. The statute also requires a statement of any misdemeanor convictions as well.

SCOTT PILKINTON is the staff attorney for Judge Randy Kennedy of the Seventh Circuit Court of the 20th Judicial District (Nashville/Davidson County). After a career in media relations and marketing in the sports and business worlds, he graduated from Nashville School of Law in 2011, earning the school’s Founders’ Award and membership in the Honorable Society of Cooper’s Inn. After working as a solo practitioner, he joined Judge Kennedy in 2013.