Attorneys at Matthew J. Crigger PLC Secure Release of Father Jailed for Contempt and Prevent Further Confinement

In the post-divorce contempt proceeding of Hopwood v. Hopwood (No. M2016-01752-COA-R3-CV), the Tennessee Court of Appeals reversed the trial court’s decision to jail the Father until he pad $8,122.43 in obligations to the Mother/Ex-Wife.  Though the court upheld the finding of contempt for failure to satisfy the obligations, the court agreed that the trial court imposed the incorrect remedy and further found that no further confinement was warranted.


Who Is to Say What the Law Is?

Throughout my six semesters of law school I probably read thousands of cases covering a wide-range of legal topics.  However, the first (and second) case assigned to me as reading in a classroom was Marbury v. Madison.  I remember that both my high school American government teacher, Coach Dan Norris, and my college political science professor, Dr. David Brodsky, said that, if I remember one thing from their class, it should be Marbury v. Madison.  Most court opinions decide a dispute between individuals and/or businesses or interpret some law.  Marbury v. Madison went further and defined the roles of our branches of government.  This case established that is was the job of the Supreme Court to decide what the law is.  In other words, it is the Supreme Court’s job to interpret laws passed by Congress to determine if the law is in conflict with the Constitution.  Furthermore, the case found that if a law is in conflict with the Constitution, it cannot stand.  In Marbury v. Madison, the Court found that the part of the Judiciary Act of 1789 which attempted to add to the Constitution’s grant of jurisdiction to the Supreme Court was unlawful.  The issue boiled-down to whether the Supreme Court could issue an order (a writ of mandamus) commanding James Madison, the then secretary of state, to make William Marbury a justice of the peace.  The Supreme Court found that it could not constitutionally issue such an order. What good would a Constitution be if courts could just ignore it?  It is important to note that this power did not become really relevant again until the infamous Dredd Scott case and then not until the Great Depression where the Supreme Court had to review the laws passed by Congress in the wake of the Great Depression.  For that lesson, I must thank Coach Neil Skalitsky.

The Constitution does not address the issue of whose job it is to say what the law is.  Read Article III of our Consitutional from beginning to end.  Judicial review is not a built-in provision.  Nonetheless, in Marbury v. Madison, the Supreme Court found that Congress had attempted to do something that was in conflict with the written Constitution and struck that action down, establishing the doctrine of judicial review.  The Supreme Court thus became a very powerful branch of government and one that could act as a check on the actions of the other branches of government.

Not All the Important Supreme Court Cases Receive All the Media Attention

Those who criticize Justice Antonin Scalia’s jurisprudence, specifically for his dissent in Obergefell v. Hodges, the recent Supreme Court case that legalized same-sex marriage, should take a closer look at his legal philosophy and legal opinions before passing judgment.  Perhaps the most important protection that our Constitution affords us as citizens of the United States is the right to be free from unreasonable searches as seizures.  In two recent opinions authored by Justice Scalia, the Supreme Court found that an individual’s property rights outweighed the government’s interest in an intrusion.

In United States v. Jones (2012), Justice Scalia wrote for the Supreme Court in holding that the police’s placement of a GPS device on an individual’s car without a warrant for the purpose of tracking the vehicle violated the prohibition against unlawful searches a seizures.  In my home county, this case had a profound effect on the prosecution of a aggravated burglary suspect.  In Florida v. Jardines (2013), Justice Scalia wrote for the Supreme Court in holding that the use of a drug-sniffing dog at the front door of a person’s home constituted a search and could not be supported without a warrant.  Justice Scalia quipped regarding the implied permission a person has to approach another’s door and knock or ring the doorbell: “This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.”

The Importance for Public Office Holders to Respect the Roles of Government Branches

The current dispute in Rowan County Kentucky that centers around the county clerk’s refusal to issue marriage licenses in the wake of the Supreme Court’s ruling in Obergefell v. Hodges that legalized same-sex marriage across all states illustrates the need for public office holders to respect the roles of the various branches of our national, state, and local governments.  In Rowan County Kentucky, no couples (heterosexual or otherwise) have received a marriage license since the Court’s ruling.  The office has thus ceased to function properly.

In the simplest terms, it is the role of the legislative branches of our government to make laws, the role of the judicial branches to decide disputes and to interpret laws under the U.S. and state constitutions where necessary, and the role of the executive branches to execute and enforce the law.  A county clerk’s office is a part of a county’s executive branch of government.  Among other duties, it is tasked with fulfilling various functions under state and local law, such as issuing marriage licenses.  Whether a clerk agrees or disagrees with the Court’s ruling legalizing same-sex marriage is irrelevant to his or her duty to issue marriage licenses under the law.  The U.S. Supreme Court has found that our U.S. Constitution, the supreme law of our land, guarantees the right to marry a person of one’s choosing.  Agree of disagree, the issue has been decided.

To cast the case as a test of how to balance religious expression and protections against discrimination, as the clerk’s attorney is characterized as doing in this Wall Street Journal Article, misses the point.  A person is free to believe and express themselves religiously.  However, for a public office holder to act or refuse to act solely upon those beliefs frustrates the functionality of government.  A court’s decision would mean nothing if a government official,such as a clerk, could pick and choose how to apply it.

The case is on appeal as the clerk appealed a federal district court judge’s decision to require her to issue marriage licenses.  The Supreme Court refused to stay the district judge’s order pending appeal and the plaintiffs are seeking to hold the clerk in contempt for her continued refusal to issue the certificates.

Testifying in Court: A Few Simple Guidelines

As an attorney, I know that testifying in court can be very stressful for my clients.  Here are a few simple guidelines I have picked up from judges and other attorneys that can help with the process:

  1. Carefully listen to and focus on the question being asked;
  2. Pause for a few seconds before answering if you need time to think;
  3. If you have a tendency to try and answers questions quickly then slowly tap your foot three times after each question before answering;
  4. Answer the question directly;
  5. If the answer is “yes” or “no” then answer “yes” or “no”‘; and
  6. If an answer needs to be explained, explain it after making a direct answer.

Cases can often turn on the credibility of the witnesses.  A witness who directly answers questions will usually appear much more credible to a court.

Can I Not Even Ask My Mom for a Campaign Contribution?: Personal Solicitation of Campaign Funds by Judges

Tomorrow, January 20, 2015, the United States Supreme Court will have to balance the freedom of political speech against the compelling interest the public has in an independent judiciary. The Court will be deciding whether to strike down bans on the personal solicitation of campaign funds by judges.  30 of the 39 States with judicial elections have such bans.  Four federal appeals courts have struck down such bans.  Most of the American legal establishment and the ABA however support the bans.


Tennessee does not allow judges to personally solicit campaign contributions. A judge in Tennessee may however establish a campaign committee to solicit contributions. See Canon 4, Rules 4.1 and 4.4 of the Judicial Code of Conduct.

Bans on the personal solicitation of campaign funds by judges are perhaps most important in those States where appellate court judges, who interpret state laws and state constitutions, are elected.  In Tennessee only trial court judges are elected.  Allowing judges in those States where appeals court judges are elected to personally solicit campaign funds could infringe upon the independence of the judiciary.  Appeals court judges could end up in the position of having to interpret laws for groups or individuals from which they personally solicited and received contributions.  Decisions could be affected by the desire to receive further contributions in upcoming elections.

Opponents of the personal solicitation bans argue requiring that contributions be solicited through committees is just a facade because judges just end up telling the committee who to call for contributions.  Why not just let the judges themselves make the calls?

The Vanderbilt Rape Trial and Distilling the Intoxication Defense in Tennessee

In the heavily covered Vanderbilt rape trial which is now underway in Nashville and in which several former Vanderbilt football players face sexual assault and rape allegations, one of the key issues that the jurors will have to consider is the intoxication of the accused.  It has come out in pretrial hearings that the defense team will offer an expert witness on the effects of alcohol on the brain.

Intoxication is generally not a defense to a crime in Tennessee.  However, evidence of intoxication, whether voluntary or involuntary, can be used at trial if it is relevant to negate the mental state of the accused.  Most crimes carry with them a mental state that must be proved by the prosecution to have existed in the mind of the accused, beyond a reasonable doubt, in order to gain a conviction.  Examples of mental states are intentional, knowing, and reckless.

If the mental state required for the crime is recklessness (which occurs when a person is aware of but consciously disregards a substantial and unjustifiable risk-the example that comes to mind is discharging a firearm towards a crowd of people without aiming or intending to hit anyone), voluntary intoxication is not relevant in the case.  In other words, voluntary intoxication is no excuse to reckless conduct.

However, a person could be so voluntarily intoxicated that he or she cannot act intentionally or knowingly.  For example, such a person so intoxicated could not be convicted of an intentional and premeditated first degree murder.  The state could still potentially convict the person of a reckless murder, a lesser offense.

If a person is involuntarily intoxicated (i.e. drugged) and the jury finds that as a result of the involuntary intoxication the person lacked the substantial capacity to either appreciate the wrongfulness of the person’s conduct or to conform that conduct to the requirements of the law that is alleged to have been violated, the person has established a true defense to the crime charged and there is no criminal responsibility.

What does all this mean for the Vanderbilt rape trial?  Likely the only issue in the case regarding the intoxication of the accused will be whether their voluntary intoxication negates the mental state that the state must prove.  The most serious crime charged in the case is aggravated rape.  Aggravated rape and/or rape can be proved by establishing, among the other requirements, that the accused acted intentionally, knowingly, or recklessly.  So, if the jury finds that one or more of the defendants was voluntarily intoxicated but nonetheless acted recklessly in committing the rape the state will still be able to secure a conviction.  The voluntary intoxication of the defendants could however negate the mental states for any intentional or knowing crimes charged in the case.