# FILED
February 9, 1999 Cecil W. Crowson Appellate Court Cle rk 

### IN THE COURT OF APPEA LS OF TENNESSEE

AT NASHVILLE

DANIEL B. TAYLOR, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9707-CH-00338 VS. ) ) Davidson Chancery ) No. 96-859-II STATE OF TENNESSEE, ) JOHN DOE, STATE COOR DINATOR ) OF ELECTIONS, MS. BOBBIE WHITE, ) SHELBY COUNTY REGISTR AR OF ) VOTERS; and CHARLES W. BURSON, ) ATTORNEY GENERAL, ) ) Defendants/Appellees. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. MCCOY, CHANCELLOR

DANIEL B. TAYLOR #102957 Northwest Correctional Center Route 2, Box 660 Tiptonville, Tennessee 38079 Pro Se/Plaintiff/Appellant JOHN KNOX WALKUP Attorney General & Reporter KEVIN STEILING Senior Counsel 425 Fifth Avenue, North Nashville, Tennessee 37243-0490

AFFIRMED AND REMAN DED

BEN H. CANTRELL PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N1 The State di d not assert that thi s proceeding i s a collat eral attack on Mr. Taylor’s o rigina l convicti on. We willnot address i t here. - 2 -

The only question presented in this complaint is whether a law making all felonies infamous cri mes c an, upon conviction, be applied to crimes committed before the date of the act. The Chancery Court of Da vidson County dismissed the plaintiff’s request for a declaratory judgment. We affirm.

I.

The pl aintiff , Daniel B. Taylor, was convicted on October 6, 1982 of a murder committed on September 20, 1980. On the date the crime was c ommitted murder was not an infamous crim e. In 19 81 the Tenn essee legislature amended Tenn. Code Ann. § 40-20-112 to make al l feloniesinfamous crimes res ulting in a loss of the right to vote. Upon his conviction, Mr. Taylor was declared to be infamous. 1

Mr. Taylor sought a declarati on that the law, as applied to him, violated the ex post facto provisions of Article I § 17 of the Tennessee Constitution and Article I § 10 of the United States Const itution. He also relie d on Arti cle I § 5 of th e Tennessee Constitution and its guarant ee of the right of suffrage. The Stat e filed a motion to dismiss for fail ure to state a claim. The chancellor

analyzed all three claims and granted the State’s motion.

II.

We will deal with Arti cle I § 5 of the Tennessee Constitution fir st. That section provides that

the right of suffrage

“shall never be denied to any person entitled thereto, except upon conviction by a j ury of some infamous crime, previously ascertained and declared by law . . . . ” Mr. Taylor asserts that this secti on means that the crime must be infamous at th e time it was committed. In Gaskin v. Collins , 661 S .W.2d 865 (Tenn. 1983) our Supreme C ourt declared that the act in question was- 3 -

unconstitutional when applied to convictionsthat occurred prior to the act’s effective date. The Court said that Arti cle I § 5 “prohi bits the General Assembly from retroactively disenfr

anchising convicted felons. ” 661 S.W.2d at 868.

What about convictions that occur red after the act? The State argued in Gaskin

that the legislature had the power t o disenfranchise any convic ted felon by its simple act -- regar dless of whether the legisl ature acted before or after the convict ion. The Supreme Court rejected that argument and said the phrase “previ ously asc ertained and declared by law in Article I § 5 qualifies the words “infamous crimes” and “places a time limitation on whe n an act shall be declared infam ous; that is, before conviction of the crime by a jury. ” 661 S.W.2d at 86 7 (emphasis added). We are of the opinio n that Gaskin resolvesthis question in favor of the State.

III.

The United StatesConstitution prohibits the states from passing ex post facto laws, Article I § 10, a nd the Tennessee Constitution echoes that prohibition as “contrary to the principles of a free Government.” Arti cle I § 11. Under both charters, however, the prohibitions run only against penal laws, laws that punish “an act which
was not punishable at the time it was committed or adds punishment, or

changes the rules of evidence by which less or different testimony is sufficient to convict than was previously required.” State v. Young, 904 S.W.2d 603 at 607 (Tenn. Cr. App. 1995). See Collins v. Youngblood , 497 U.S. 37 (1990); Kaylor v. Bradley , 912 S.W.2d 728 (Tenn. App. 1995).

In Goats v. State , 364 S.W. 2d 889 (Tenn. 1963), the Court said that the revocation of a drivers license by the Department

of Safety after

the driver had been convicted of driving under the influence was not a part of the trial or conviction for a criminal act. Thus, the statute givi ng the Department of Saf ety t hat power did not- 4 -

violate the separation of powers. In State v. Conley , 639 S.W.2d 435 (Tenn. 1982), the Court said that allowi ng the State t o dec lare the defendant an habitual offend er and to bar him from driv ing a motor

vehicle did not

amount to double jeopardy, even though the convictions used to inv oke the Habitual Offenders Ac t also allowed the suspension of his license for an indefinite period of time. The Court said that a matter is criminal (thus subjecting the defendant t o jeopardy) only if im prisonment or the assessment

of a fi ne may foll ow conviction. 639 S.W.2d at 436. The courts thus make a disti n ction between criminal statutes and remedial statut es that do nothing more than deprive the defendant of a privilege. 639 S.W.2d at 437.

We think the laws disenfranchising convicted felons are simply remedial statutes and are not

laws that invoke or inc rease criminal penalties. Therefore, they
are not ex

post facto laws within the prohibition of the State or Federal Constitution.

We affirm the judgment of the trial court and remand the cause for any further proceedings necessar y. Tax the costs on appeal to the appellant.

____________________________ BEN H. CANTRELL PRESIDING JUDGE, M.S. CONCUR:

_____________________________ WILLIAM C. KOCH, JR.,JUDGE

_____________________________ WILLIAM B. CAIN, JUDG E