Would a Tennessee bill letting HOAs sue to ban repeat criminal offenders from a neighborhood survive constitutional challenge?

Plain-English summary

HB1982 would have added a new section, Tenn. Code Ann. § 40-35-123, allowing homeowners' associations, neighborhood associations, neighborhood watches, and other organized resident groups to seek a one-year injunction (renewable) banning a criminal offender from entering the residential area's boundaries. The trigger required: (1) the offender had been convicted of three or more separate offenses of theft, burglary, rape, or criminal homicide, and (2) at least three of those offenses were committed within the residential area's boundaries.

The AG concluded the bill was defensible against a facial constitutional challenge. A facial challenge under United States v. Salerno, 481 U.S. 739 (1987), requires showing "no set of circumstances" under which the statute would be valid. The AG worked through the most likely lines of attack and found each defensible.

On non-delegation, the AG concluded that giving HOAs the power to seek (not impose) an injunction is closer to letting private parties enforce a nuisance remedy than to delegating legislative authority. On substantive due process and equal protection, the AG identified a rational basis (offenders convicted of three crimes in a particular neighborhood have shown a proclivity to commit more there) and noted that imperfect classifications survive rational-basis review. On procedural due process, the AG observed that the statute uses "seek," implying ordinary judicial process under Tenn. R. Civ. P. 65, so notice and hearing would presumably apply. On double jeopardy, the AG concluded the injunction has the hallmarks of a civil regulatory scheme rather than criminal punishment.

The opinion's most important qualification involved intrastate travel. The Sixth Circuit's Johnson v. City of Cincinnati decision recognizes a limited right to intrastate travel and struck down Cincinnati's drug-exclusion zones under strict scrutiny. Some injunctions issued under HB1982 might face the same scrutiny depending on how broadly drawn the residential area is, but because narrow injunctions covering small areas could still pass constitutional muster, the AG concluded the statute is not facially unconstitutional.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What exactly was HB1982 trying to do?
A: It would have created a private right to seek an injunction barring a person with three or more convictions for theft, burglary, rape, or criminal homicide from entering a residential area where at least three of those offenses occurred. The injunction would last one year, could be modified or dissolved, and could be renewed by the plaintiff.

Q: Why didn't this run afoul of the non-delegation doctrine?
A: Tennessee's non-delegation doctrine bars the General Assembly from handing legislative power to private parties (Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003)). The AG concluded HOAs were not making public policy when choosing whether to use a remedy the legislature provided. The model is analogous to nuisance law, where private parties have long been able to seek injunctions against public wrongs (State v. Persica, 168 S.W. 1056 (Tenn. 1914)), and to consent provisions in zoning ordinances (Davis v. Blount County Beer Board).

Q: Would the bill have triggered strict scrutiny?
A: Possibly in individual cases. The Sixth Circuit's Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002), recognized a limited right to intrastate travel and a right to intimate association that were both implicated by a Cincinnati drug-exclusion-zone ordinance. Johnson applied strict scrutiny and struck the ordinance down, partly because the zone covered nearly 10,000 residents, a major historic district, and a growing entertainment area, and because some plaintiffs' grandchildren and lawyers were inside the zone. Smaller HB1982 injunctions over compact areas might survive review, which is why the AG concluded the statute is not facially invalid even if some as-applied challenges would prevail.

Q: Is the injunction a "punishment" for double-jeopardy purposes?
A: The AG concluded no. The double-jeopardy test from Hudson v. United States, 522 U.S. 93 (1997), and Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009), first asks the legislature's intended label and then checks whether the scheme is "so punitive in purpose or effect" that it functions as criminal punishment. HB1982 doesn't expressly label the injunction civil or criminal, but the requirement of three convictions, the geographic nexus, the discretionary "seek" mechanism, and the ability to modify or dissolve all weighed toward a civil regulatory scheme. The AG also noted that neighborhood bans have not historically been regarded as punishment (Doe v. Miller, 405 F.3d 700 (8th Cir. 2005), discussing sex-offender residency restrictions).

Q: What about an as-applied ex post facto challenge?
A: Footnote 3 of the opinion acknowledges that an as-applied ex post facto challenge could exist under Smith v. Doe, 538 U.S. 84 (2002), but a facial ex post facto challenge would not succeed.

Q: Did the AG say the bill was clearly constitutional?
A: No. The opinion's bottom line is that the bill is "defensible against a facial constitutional challenge." That is a deliberate phrasing. The AG flagged the Johnson line of intrastate-travel cases and acknowledged that the procedure for issuing injunctions was left to court rules. As-applied challenges in specific cases (especially involving broad geographic zones, or where family or legal access ties are at stake) could still succeed.

Background and statutory framework

Tennessee already had several civil tools that bore family resemblance to the proposed HB1982 mechanism, including nuisance injunctions and zoning consent procedures. The bill drew on that tradition but applied it to crime-prevention in residential neighborhoods, with a private trigger and a defined class of qualifying offenses (theft, burglary, rape, criminal homicide).

The opinion's analytical structure tracks the four constitutional doctrines most likely to be invoked: non-delegation, substantive due process and equal protection, procedural due process, and double jeopardy. The AG's central observation is that under the demanding Salerno standard for facial challenges, the existence of some valid applications saves the statute, even if other applications might be vulnerable.

The most important live question identified by the opinion is intrastate travel. The Sixth Circuit's Johnson decision is the controlling federal-circuit precedent in Tennessee on banning offenders from defined urban zones. The opinion essentially advises that HB1982 injunctions would have to be drawn narrowly enough that the strict-scrutiny risk from Johnson does not reach them. The opinion does not address how that would interact with rights to visit specific places like attorneys' offices or family members' homes, which were dispositive in Johnson.

Citations and references

Constitutional provisions:
- U.S. Const. amend. V (Double Jeopardy)
- Tenn. Const. art. I, § 10 (Double Jeopardy)

Statutes (proposed):
- House Bill 1982, 108th General Assembly (proposed Tenn. Code Ann. § 40-35-123)

Existing statutes referenced:
- Tenn. Code Ann. § 68-14-302 (HOA definition); §§ 39-14-103, 39-14-402, 39-13-503, 39-13-201 (qualifying offenses)
- Tenn. R. Civ. P. 65; 65.06 (injunctions; contempt)

Cases:
- United States v. Salerno, 481 U.S. 739 (1987) (U.S. Supreme Court; facial-challenge standard)
- Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993) (Tennessee Supreme Court)
- Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003) (Tennessee Supreme Court; non-delegation)
- Davis v. Blount County Beer Board, 621 S.W.2d 149 (Tenn. 1981) (Tennessee Supreme Court)
- State v. Persica, 168 S.W. 1056 (Tenn. 1914) (Tennessee Supreme Court)
- Romer v. Evans, 517 U.S. 620 (1996) (U.S. Supreme Court)
- Fritts v. Wallace, 723 S.W.2d 948 (Tenn. 1987) (Tennessee Supreme Court)
- FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) (U.S. Supreme Court)
- Dandridge v. Williams, 397 U.S. 471 (1970) (U.S. Supreme Court)
- New York Transit Authority v. Beazer, 440 U.S. 568 (1979) (U.S. Supreme Court)
- Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002) (federal court of appeals; intrastate travel)
- Roberts v. United States Jaycees, 468 U.S. 609 (1984) (U.S. Supreme Court; intimate association)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (U.S. Supreme Court; procedural due process)
- Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393 (Tenn. 2013) (Tennessee Supreme Court)
- Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009) (Tennessee Supreme Court; double jeopardy)
- Hudson v. United States, 522 U.S. 93 (1997) (U.S. Supreme Court; civil vs. criminal punishment)
- Smith v. Doe, 538 U.S. 84 (2002) (U.S. Supreme Court; ex post facto)
- Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (federal court of appeals)
- NCAA v. Tarkanian, 488 U.S. 179 (1988) (U.S. Supreme Court; state action)

Subject

Opinion No. 14-81, Constitutionality of Legislation Providing for Neighborhood Injunctions, September 9, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-081.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 9, 2014
Opinion No. 14-81
Constitutionality of Legislation Providing for Neighborhood Injunctions

QUESTION

Would the legislation that was House Bill 1982 of the 108th General Assembly, as amended (hereinafter "HB1982"), which would allow a homeowners' association or other neighborhood group to request an injunction to prohibit a criminal offender from entering the boundaries of the residential area, violate the United States or Tennessee Constitution?

OPINION

HB1982 is defensible against a facial constitutional challenge.

ANALYSIS

HB1982 would add a new section, 40-35-123, to the Tennessee Code, which would provide as follows:

A homeowners' association, as defined in § 68-14-302, neighborhood association, neighborhood watch or any organized group of citizens that reside within a residential area, may seek an injunction or restraining order prohibiting an offender from entering the boundaries of the residential area, if:

(1) The offender has been convicted of three (3) or more separate offenses of theft, as defined in § 39-14-103; burglary, as defined in § 39-14-402; rape, as defined in § 39-13-503; or criminal homicide, as defined [in] § 39-13-201; and

(2) Three (3) or more of the offenses were committed within the boundaries of the residential area.

Injunctions would last for one year unless modified or dissolved, and could be renewed by the plaintiff.

A legislative act is facially constitutional unless "no set of circumstances exist[s] under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 525 (Tenn. 1993). HB1982 is defensible against a facial challenge based on the non-delegation doctrine, substantive due process and equal protection, procedural due process, and the prohibition against double jeopardy.

First, HB1982 does not run afoul of the non-delegation doctrine. The General Assembly may not delegate its legislative power to private individuals, see Gallaher v. Elam, 104 S.W.3d 455, 464 (Tenn. 2003), and it might be contended that HB1982 endows homeowners' associations ("HOAs") with legislative power to determine whether the offenders should be excluded from certain residential areas. But while HOAs choose whether to enforce a remedy with which they have been provided, they make no public policy in doing so. Cf. Davis v. Blount County Beer Board, 621 S.W.2d 149, 150 (Tenn. 1981) (upholding consent provision of liquor zoning ordinance, stating: "The effect of a protest is to deny the permit, but that effect is derived from the legislative enactment and the ordinance passed pursuant thereto, not from the residence owner."). In this regard, HB1982 is similar to the law of nuisance, which has traditionally allowed injunctions at the instance of private parties. See, e.g., State v. Persica, 168 S.W. 1056, 1059 (Tenn. 1914) ("Nor can it be doubted that the law-making power of the state may, within constitutional limits, prescribe such an agency as is provided for in this act to represent the interest of the public in setting in motion such a law as this.").

Second, HB1982 is defensible against a substantive-due-process or equal-protection challenge. Unless legislation infringes a fundamental right or targets a suspect class, it will stand if it passes rational-basis scrutiny. Romer v. Evans, 517 U.S. 620, 631 (1996); Fritts v. Wallace, 723 S.W.2d 948, 949 (Tenn. 1987). To do so, it must merely "bear[] a rational relation to some legitimate end." Romer, 517 U.S. at 631; see Fritts, 723 S.W.2d at 949 ("if the court is able to conceive of a rational basis for the regulatory measures that is reasonably related to the legitimate government interest in protecting the public, the measure must be sustained"). It is irrelevant whether the reasons given actually motivated the legislature; rather, the question is whether some rational basis exists upon which the legislature could have based the challenged law. See FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993); see also Fritts, 723 S.W.2d at 949.

One can readily conceive of a rational basis for HB1982: persons who have been convicted of three offenses carried out in a particular residential area have demonstrated a proclivity for committing crimes there, and prohibiting them from entering the area might prevent them from committing more. The analysis is slightly different for equal-protection purposes; rather than identify a rational reason for excluding the offenders, a reviewing court must find a rational reason for treating thieves, burglars, rapists, and killers differently from other persons. HB1982 does not, for example, apply to offenders convicted of arson. But legislation "does not violate the Equal Protection Clause merely because the classifications [it makes] are imperfect." Dandridge v. Williams, 397 U.S. 471, 485 (1970). A law can be underinclusive or overinclusive without running afoul of the Equal Protection Clause. New York Transit Authority v. Beazer, 440 U.S. 568, 592 n.38 (1979). Barring the class of offenders that the legislation does is reasonably likely to safeguard the neighborhood.

The United States Court of Appeals for the Sixth Circuit, however, has recognized a limited right to intrastate travel, i.e., the right to travel locally through public spaces and roadways. See Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002). In Johnson, the court found this right to be implicated by a city ordinance that banned persons convicted of drug crimes from entering "drug exclusion zones." The court also found that the ordinance implicated the right to freedom of intimate association where it infringed on one's rights to participate in the upbringing of grandchildren and to visit one's attorney. Id. at 501 (citing, inter alia, Roberts v. United States Jaycees, 468 U.S. 609, 617-618 (1984)). Applying strict scrutiny, the court concluded that the ordinance was not narrowly tailored to advancing the governmental interest of protecting the quality of life in the drug exclusion zone and struck the law down. Id. at 506.

Johnson thus suggests that some injunctions issued under HB1982 might be subject to strict scrutiny, which, in practice, is a very difficult standard to meet. But the neighborhood at issue in Johnson comprised nearly 10,000 residents; it contained a large historic district and a fast-growing entertainment district. Id. at 502. It also contained one plaintiff's grandchildren and another's lawyer. Id. at 505. Injunctions issued under HB1982 may not have such broad application; they might define relatively small areas that do not significantly trench upon an offender's interests in localized travel or freedom of association. Because these applications could withstand constitutional scrutiny, the legislation is not facially unconstitutional.

Third, HB1982 does not facially violate procedural-due-process rights. Procedural due process generally guarantees that individuals be given notice and an opportunity to have their legal claims heard at a meaningful time and in a meaningful manner. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 407 (Tenn. 2013). Although HB1982 does not specify the procedure by which an HOA can obtain an injunction, it does require that the HOA or other neighborhood group "seek" one; in other words, an injunction does not issue automatically upon an offender's third conviction. Some sort of proceeding must therefore take place at which the HOA demonstrates that the offender has committed three qualifying offenses within the residential area. Tenn. R. Civ. P. 65, which covers injunctions and restraining orders, and applicable judicial decisions would therefore presumably apply. Affording an offender the opportunity to be heard may be constitutionally required, but trial courts can, as a practical matter, afford adequate process when confronted with an application for an injunction under HB1982.

Fourth and finally, HB1982 can be defended against a double-jeopardy challenge. Both the Fifth Amendment to the United States Constitution and Article I, § 10, of the Tennessee Constitution provide that no person shall "for the same offence . . . be twice put in jeopardy of life or limb." Among the fundamental guarantees encompassed in the principle of double jeopardy is the protection against multiple punishments for the same offense. See Waters v. Farr, 291 S.W.3d 873, 892 (Tenn. 2009). The Double Jeopardy Clauses do not "prohibit the imposition of all additional sanctions that could, 'in common parlance,' be described as punishment." Id. (quoting Hudson v. United States, 522 U.S. 93, 98-99 (1997)). Instead, the Clauses protect "only against the imposition of multiple criminal punishments for the same offense, and then only when such occurs in successive proceedings." Id. (quoting Hudson, 522 U.S. at 99) (emphasis in Hudson).

Determining whether an injunction entered under HB1982 is criminal or civil in nature for double-jeopardy purposes involves application of a two-pronged, multi-factored analysis. First, courts ascertain "whether the legislature, 'in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.'" Id. at 893 (quoting Hudson, 522 U.S. at 99). Second, even if the legislature intended to establish a civil penalty, courts review the statutory scheme to ensure that it is not "so punitive[,] either in purpose or effect," as to turn the intended civil sanction into a criminal punishment. Id. (quoting Hudson, 522 U.S. at 99); see also id. (identifying the seven non-dispositive factors used to guide this inquiry).

HB1982 does not contain an explicit civil or criminal label, nor does it imply a legislative preference for one or the other. But the seven guideposts tip the balance in favor of a civil regulatory scheme. An act's rational connection to a nonpunitive purpose is a "most significant" factor, Smith v. Doe, 538 U.S. 84, 102 (2002), and as discussed above, HB1982 has a legitimate nonpunitive purpose in safeguarding neighborhood safety, which is advanced by banning offenders who have repeatedly committed crimes there. Also, the requirement of three convictions, the nexus between the geographical scope of the injunction and the place of commission of the offenses, the fact that the injunction is not automatically triggered by conviction, and the ability to modify or dissolve the injunction are all features that strongly suggest that the legislation is not excessive in relation to its regulatory purpose. Finally, bans on entering particular neighborhoods have not historically been regarded as punishment. Cf. Doe v. Miller, 405 F.3d 700, 720 (8th Cir. 2005) (stating that residency restriction on sex offenders "is unlike banishment in important respects, and we do not believe it is of a type that is traditionally punitive").

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JAMES E. GAYLORD
Senior Counsel

Requested by:
The Honorable Antonio Parkinson
State Representative
36 Legislative Plaza
Nashville, Tennessee 37243