Reginald Dion Hughes v. Tennessee Board of Probation and Parole (Dissent)

We granted permission to appeal believing this case presented us with an opportunity to address the constitutionality of Tennessee Code Annotated section 41-21-812 (2014)—an issue that merits our attention given a 2014 decision of the United States Court of Appeals for the Sixth Circuit holding the statute unconstitutional as applied in certain circumstances.  See Clifton v. Carpenter, 775 F.3d 760, 767-68 (6th Cir. 2014) (holding the statute unconstitutional when applied to bar a petitioner whose parole had been revoked from appealing the parole board’s decision because he owed $1,449.15 in court costs from prior cases).  Having now reviewed the record on appeal and the relevant statutory provisions, I am convinced that the statute does not apply to authorize dismissal of Mr. Hughes’s appeal.  As a result, I have concluded, like Justice Lee, that it is unnecessary to address the constitutionality of this statute in this appeal.  See West v. Schofield, 468 S.W.3d 482, 493–94 (Tenn. 2015)(“[C]ourts decide constitutional issues only when necessary.”).  Therefore, while I do not disagree with the majority’s discussion of the relevant constitutional principles or take issue with the outcome the majority reaches on the constitutionality of the statute, I am unable to join the majority decision affirming the dismissal of the petitioner’s appeal.  Rather, I would hold that dismissing an inmate’s claim based on Tennessee Code Annotated section 41-21-812 is permissible only if the record establishes that the inmates’ outstanding court costs were assessed against the inmate “under this part,” meaning in a manner consistent with Tennessee Code Annotated section 41-21-808(b).Because the record on appeal fails to establish that costs of the divorce action were assessed against Mr. Hughes “under this part,” consistently with section 41-21-808(b), I would reverse the dismissal and remand to the trial court for consideration of Mr. Hughes’s petition for certiorari on the merits.