about an inmate sterilization program in white county tennessee that facially discriminates on the basis of both gender and the exercise of a fundamental right but this appeal turns primarily on one issue can this court reach the merits of the plaintiff's claims if it can your honour's then i respectfully submit that this is one of the simplest cases of this court will ever decide and the reason for that is straightforward as mentioned the challenge to inmate sterilization program discriminates on the basis of both gender and the exercise of a fundamental right both of those defects independently raise the standard of constitutional scrutiny in this case but more importantly they shifted the evidentiary burden of proving the constitutionality to the defendants in response to a dispositive motion for summary judgment as to both issues however the defendants failed to muster any proof whatsoever not a single affidavit or exhibit to meet their burden of proof in this case as a consequence your honour's if this court reaches the merits of this case then there is only one possible outcome here this court should conclude that the defendants failed to meet their burden of proof summary judgment should be entered in the plaintiff's favor and the district court's order an injunction against the ongoing disbursement of sentencing credits within white county based solely on the exercise of the fundamental right to procreate with respect to the equal protection claims though there are two possible remedies either to declare the program an already and withdraw the benefits from the favored class or else to provide the credit in this case the benefit to the plaintiffs either one of those release forms of relief is available i want an equal protection claim as stated  dispositive motion for summary judgment pending that was fully briefed there is simply nothing else to decide other than whether they met their burden of proof in this case and there was no evidence not at all but a single affidavit or exhibit was submitted by the defendants to overcome the secession they had the burden of proving that it is not possible or not likely at least that this program was going to happen again in the future and again there was no evidence whatsoever not a single affidavit or exhibit submitted to the district court after a full briefing to overcome to meet that burden result we i think there's a statute there isn't that or no your honor that is the primary basis that the district court used to find this case was mo respectfully though the statute that was passed in this case has nothing to do with the relief that the plaintiffs are seeking has no bearing whatsoever or is the likelihood of harm us if if what you're denial of equal treatment not the ultimate ability to obtain a benefit this program remains ongoing to the extent that sentencing credits are still being dispersed based exclusively on inmates decision to forgo a fundamental right when you say they're still being dispersed i thought this was a one time thing that happened so people either did or did not get the sentencing credits you wanted to provide some context on this there was initially an order that provided that inmates who came to the court and agreed to be sterilized would get this thirty day sentence credit there was a bit of a national outcry a couple of months later there was a second order that came down it said we're no longer doing this going forward but any inmate who previously got sterilized or agreed to become sterilized can still come back to the court and get a sentence of credit and so hasn't that happened already it is if there was in in the ember twenty seventeen there was an order making clear that this is still available to any inmate who wants to come back to the court and say i got sterilized or i agreed to be sterilized the sentencing credits are still available and being dispersed pursuant to that work or you see being dispersed you have evidence showing that people are still getting sentencing credits because of that what we've submitted your honor is a live order that is admittedly still active signed by the defendant judg this matter that says to clarify these credits are still available to any inmate who either got sterilized or agreed to become sterilized previously as to the statute it only applies prospect of plea your honor it came into effect in may of twenty eighteen the language of that statute makes very clear that it takes effect on the date that it became a law and that it does not apply retrospectively as a  he faces really be a stiff person let me answer that question and in two separate ways you are the first answer is that please have some at least plausible connection to the criminal justice system getting inma sterilized there is there is no tight fit whatsoever is no tailoring no narrow tailoring at all with respect to this inmate sterilization program but acceptance of responsibility in the context of a of a criminal plague remit is is part and parcel of the criminal justice system not so with sterilization more importantly though in a typical case your honor i i understand that there might be some degree of difference or some line drawing available as to whether  coercive or not this court doesn't even have to make this decision in this case your honor because pursuant to a public reprimand related to this program the judge already acknowledged that this program was und of fair enough your honor nonetheless i don't believe that there is any reasonable claim to be made that sterilizing inmates there's any plausible connection to any government interest not certainly not a compelling one and as a result this program fails under both strict screwballs surely it requires or defendant to give up coasters right that's correct your honor and as a result it shifted the burden  this case of gender discrimination and discrimination on the basis of a fundamental right that burden shifted now i'm not saying it is impossible to meet that burden although i think it would be very very difficult to do so nonetheless it was the defendant's obligation in this case to prove that there was a compelling interest involved with respect to its fundamental rights based discrimination to prove that there was some exceedingly persuasive justification for this program with respect to its gender based discrimination and to prove that there was sufficient narrow yes your honor but we have asked for either equal protection remedy or both so i thought are your clients still in jail they are not in jail or at least i don't believe they are still in jail after the clients is that right yes after we entered that stipulation one of my clients got re incarcerated related to a parole violation i believe he is out now but as i mentioned in in our reply brief your honor this is a case about sentence credits as a result the proper inquiry is not when the jail sentence and this when the sentence ends but more importantly are are can you get sentencing credits for non jail time that's that's what we're asking this court to provide your honor yes how does that work it would be a court order that reduces the sentence line by thirty days and the reason why that's important even after the jail term has completed even after the sentences ended is because it affects the plaintiffs collateral rights under state law your honour's under tennessee law expungement are generally available for nonviolent convictions but they are not available until five years after the end of the completion of the sentence with the injunction being the injunction would be against  continuing to disperse sentencing credits doing that but i mean never did that the sheriff has argued that he is obligated to follow the orders that were instituted by judge banning field we have asked this court to declare those orders to be unconstitutional i'm asking this court to enjoin the sheriff from complying with this constitutionally tortious order that distributes sentencing credits both in violation of you enjoying him tell him to fall of the law now written by those that year i would like this court to declare the program unconstitutional and enjoin the sheriff from continuing to follow unconstitutional order i see that my time is i just have one very quick question if you would but i think your answer is just more questions that all three of the plaintiffs have been released from jail one apparently re offended in some fashion violated supervised release and back to back in jail but are they also under the sense of the other two or even all three of the under supervised release in any way or two of two of the three are under supervised release your honor yes ok and how with the sentencing credit help them in in two separate ways here are first it would reduce by thirty days the period of time in which they are under state control but secondly it would accelerate the time period what i would have reduced is because they would they would have started sooner supervised release would have started thirty days sooner that's correct your honor it whether started sooner or take thirty days off the  way the result is the same it was the up and there's a second the second is that under tennessee state law expungement for nonviolent convictions which is what we have here is presumptively available five years after the sentence terminations as a result if you can move that sentence termination date up by thirty days you can get your record expunged thirty days early that is a concrete tangible benefit that will continue to be important to the plaintiffs were guard less of when their jail terms of their sentences and th good afternoon your honor and may it please the court my name is michael schmidt i'm here on behalf of judge sam bedingfield and adi shu the prior sheriff of white county tennessee and the program that  being challenged started with the tennessee department of health a state institution that offered free educational programs to these inmates and one of those educational programs taught the inmates the dangers of neonatal absence syndrome the as a result of going through that program the department of health offered free next going on implants for females and free of us activities for males for those that wanted to go forward  that the judge thought that was a excellent idea and as an incentive offered thirty days off of a sentence credit to those individuals that went through the program and ultimately received that the judge  was publicly reprimanded by the board of judiciary and now with myths that it could be unduly course of to some individuals when you hang the keys of the jail in front of  as far as the three plaintiffs and i guess there's this standing order spawned a total of five lawsuits two of them are currently pending before this court this one in there is a female plaintiff lawsuit where my officers have filed or raise an appeal qualified immunity her denial qualified immunity all those cases have now been resolved in this is the last case that has gone from the standing order  what happened in the case has that been resolved by the sixth circuit no the it was privately settled so the there was a all male class action that was dismissed and that was not appealed and he was serving the sentence out of the criminal court in white county and that is important because the standing order issued by judge bedingfield who was a general sessions judge in white county limited the standing order to those individuals over who had jurisdiction which were individual serving a sentence issued by the general sessions court mr sullivan appeared at the white county jail three days before the standing order was rescinded he wasn't sentenced until one day after this complaint was filed there's mr gentry was also sentenced by the circuit court and mr haskell was the only of the three that was  the general sessions court so at least for two of these individuals there is a concern of what effect an injunction on a general sessions judge would have i would also suggest that an injunction on a sh the third order and you have to correct me if i'm wrong as i recall that order still give a sentencing credit of thirty days to those inmates who opted to credit just because they opted in so to speak that so to answer your first question the third quarter was a clarifying order that clarified the order that allegedly rescinded this whole program and we want to make sure that everyone understood there was bookends in place the program started when the standing order was entered in the program entered when the order rescinding the standing order was entered in those those that category of inmate still receive a thirty day credit and once you up that but did not get a perspective anybody who was serving a sentence under the general sessions court who agreed to get either of the next one implant or the  would have received a thirty day sentence credit and that was what was stated in the order re sending the standing order and then that was what was intended to be clarified in the order clarify we know whether those all of those people have received these credits or that i'm going to record cleared all of them the record is not clear on that i spoke with the judge a couple of weeks ago and he told me that he hasn't had anybody in a couple of months come by to ask for any sort of sentence credit from how i understood it worked there it's not like someone goes and asked for a sentence credit at the time it happened you got the sentence credit so there's no more sentence credits being handed out the time what happened sorry order came out at the time between the two orders when there was this live program if i was it inmate now raise my hand and i said i would like of the sec to me here's your sentence credit even before the person got a sect well i guess nope no male god of the sect to me but there were there are no actual men who got the sect means pursuant to the judge's program that's correct some how many people signed up to have a sect to me but did not get one for men i believe the number was under five that the record keeping is an excellent for fema the next point on implants there were i believe around forty who actually got the implant in there maybe a give or take a couple of individuals there and and so when the complaint was filed in this case my clients have argued the plaintiffs lack standing and we have two issues here we have standing and moved this and the primary reason at the time of following this complaint was there was no injury in fact there was no concern there was some sort of possible possible future eminent injury coming down the line these gentlemens lives were not changed in any way shape or form by the entry of any of these three orders other than they saw other people get a sentence credit now those sentence credits were not issued on the basis of sex or on the basis of exercise of a  fundamental right they were such that they were given to the women who had the employer right correct so the women were giving up their asserted constitutional right to procreate correct but the this does not rise to a level of an equal protection claim because there was no disparate treatment the women were not treated differently than the men and you know so basically the same offer was handed down to everybody all in the end mates under the general sessions jurisdiction here is your same offer well the oxford was different between men and women in that usually of a sect a means are considered fairly permanent they may not they may be able to be reversed but would seem superficially can tommy and ron that would seem superficially to be different than an implant that i would presume can be taken out that is correct the the way the process was administered was different for females and males and if discovery would have gone forward in this case it would have shown that judge bending field required thirty days of waiting for men before they got the sec to me to make sure that what they were doing was in their best interest basically he didn't want somebody agreeing he wanted them to have a couple of nights to sleep on that that is probably what explains why their words less men that received them the females in so the at the time of the complaint was filed the order had already been re and you know i guess the backup of all that this would be a little bit different there was a claim for damages in this case but they only want a declaration in the injunction and so when we're looking at the complaint at the time it was filed the order had already been rescinded and importantly along with that the reason it had been rescinded is because the department of health a separate entity a state and agency said we are no longer going to offer any of these services if they are connected in any way shape or form to a sentence credit the department of health basically was dissing itself from white count and so this is an instance in which there was the defendant ceased his alleged unlawful conduct in order to avoid some sort of ruling from a court the state agency the vehicle through which this could have happened initiated this whole process by saying we're out we're no longer involved in this were there people either males or females who got sentencing credit  so isn't a theory these three plaintiffs that they are denied sentencing credits because they refused to give up their right to procreate which is a fundamental right so why isn't that something that could be a continuing violation that could be cured by an injunction well i think there's a difference between putting an impediment to access a fundamental right and offering  a motivation to take a different route and for example there were state funding of abortion there's been decisions through i forget if it's medicare but they've that they were going to fund only medically necessary abortions and not abortions that were by choice and the supreme court and i'm sorry to have the side of this case i can provide to the court basically said when you put a barrier and said you cannot access that's one thing using funding to encourage people's conduct is another and in this case it's we were not these gentlemen all exercise their fundamental right there was no burden there was no barrier there we did not stop them in any way shape or form there was an encouragement for those that thought it was in their best interest to receive this free medical health care from the department of health for whatever reasons in their lives a lot of them are addicted to drugs a lot of them if they haven't wanted children the judge of it was talking about the seeing these families come time and time again before him and he was really trying to do something that was well no good deed there's the department of health is not going to do this anymore if that's not sufficient for standing then when the tenth tennessee came down with the statute making it illegal and individuals were released from carson aeration the idea that there's going to be some sort of continuing harm at this case other than they didn't get a sentence credit is not not present now the idea that maybe this sentence credit i think in the brief he said length of sentence affects employment opportunities or length of sentence affects your ability being under some sort of court supervision those were my ability to go get my my cases expunged first the one gentleman that was mentioned as far as being under eight year supervision he's under the circuit court jurisdiction he's not under the jurisdiction the general sessions court and i have believed difference that if if the are you saying that he should never have been given the sentence credit because he was never under the jurisdiction of the  he never did get a sentence credit with that because the three say that he's he he was not within he was not encompass by the standing order because the general sessions judge did not have the ability to give a sentencing credit to this individual so he's you're saying he's got a proper plaintiff that's exactly what i'm saying and which one is that that is sol then and gentry is also out of the circuit court in both of them were actually sentenced on august twenty fifth two thousand and seventeen which is one day after the standing water was rescinded and so if at the time there is a question  so they are sentenced and i don't know the intricacies of tennessee they're sentenced by the circuit court then you're saying as opposed to the general sessions court both of them have sentencing the ability to sentence general sessions typically does misdemeanors does eleven twenty ninth circuit court can also do that but who sentenced them the circuit court circuit court and they were sentenced the day after the first order was res so you're saying neither gentry nor sullivan qualify correct in fact that's the when this case was originally filed mr sullivan was the sole plaintiff i filed a motion to dismiss saying he's circuit court this order doesn't even apply to him how can he claim injury from an order that doesn't apply to him and the judge when it exercises jurisdiction over him there was an amended complaint added the other two plaintiffs in this case and of those two plaintiffs only one was out of the general sessions court and so i would ask to see my time is up i would ask the court to find that in this case the court lacked jurisdiction because there was no standing of the other individuals named who could you and so why would relief or has not be appropriate in terms of giving him a thirty day sentencing i believe that if you're looking at the equitable leave relief that the court has the ability to provide what the court is doing in that case is saying just because the court entered the general sessions court entered this order everybody that was in the jail now gets a sentence of credit because effectively any individual that saul someone else that refused to give up their fundamental right in order to get out thirty days earlier everybody in that jail is going  get the relief because we're hypothesizing thirty because he was not injured there was no injury in fact there was no threat and injury and the relief of the differential in treatment cogniza that he was that he was not in the same class of individuals that was granted the thirty day sentence credit so you don't have that identity of parties that were treated different he was sentenced by the circuit court that's how we know that this was applied much more broadly than just general sessions defendants but more than that in tennessee all three of these plaintiffs just like all other criminal defendants came before judge bedingfield before ultimately some of their cases were sentenced by the circuit court i think there's there's certainly no evidence in the record that this this order did not apply to the additional plaintiffs here and i think the record is quite clear that it did including  particular plaintiffs gentry who signed up for this specific to me program i also want to note and emphasize there is no evidence in this record whatsoever that all of these other potential plaintiffs are people eligible for the sentencing credit that is still being handed out have in fact received it yet that this is exhausted there's not they had an opportunity to prove that and an injunction wasn't necessary here there's no evidence in the record sport this claim this this statement about five  me defendants and several dozen necks put on implant plaintiffs that have already received their creditors this is the first i've heard of this because it is simply not in the record with respect to an injunction i also just want to emphasize the reason why this order was partially rescinded as opposing counsel mentioned it was rescinded because the state of tennessee department of health indicated through its representatives that it will no longer issue ert offer free sterilization not because there isn't any acknowledgement from the defendants that this program is constitutionally problematic not because there's been any knowledge meant that it is unlawful or that there's any crop like any legal problem with  whatsoever simply a third party has said we're no longer providing free sterilization it's a night providing free sterilization to any inmates then at all or are there some other aspects to that i'm simply reading from the order rescinding previous standing order to page i d one forty seven document thirteen two this is the justification provided by defendant bedingfield as to why this worker was partially rescinded it starts where as the state of tennessee department of health has indicated to the court through its representatives that it will no longer offer free the sec timmy's to wake county inmates serving a sentence for the general sessions court and will not provide that for an expert on implant twenty county inmates serving a sentence for the general sessions court is here by word the previous order in this regard is your virus and right that's and that's not because there's been any acknowledgment of some underlying illegality here and to the extent that they're saying there is there is no chance that this program will return  think that matters if you really would as injunctive relief to take away the thirty day credits that have been given that is a determination that we leave up to the article three judges here there are two possible remedies available have we've asked for either one or both that is certainly a potential equal protection remedy it is it is one that this court is empowered to provide your honor just want to know one last thing before my time runs out as noted there's that one might be able to dispute what qualifies and as an incentive or a burden right but in this case we have a judge who was publicly reprimanded in an agreed order states that you now realize this order inmates into undergoing a surgical procedure which would cause at least a temporary sterilization it was therefore improper we've argued that he's stopped by that admission we had a extended section in our briefing about it to which there was no today we very much appreciate them the case will be submitted and you may call the