IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 4, 2002 Session

PHIL IP WO RKM AN v. D ONA L CA MPB ELL , ET AL.

A Direct Ap peal from th e Chan cery Cour t for Davidso n Coun ty No. 01-966-III The Honorable Ellen Hobbs Lyle, Judge

No. M2001-01445-COA-R3-CV - Filed May 7, 2002 This case involves the extent to which the State of Tennessee may regulate a condemned prisoner’s right to be attended by his personal minister in the hours leading up to his execution. Prisoner sued the Commissioner of the Tennessee Department of Corrections and the prison warden based upon the warde n’s denial of prisoner’s request that his personal religious adviso r be physically present at all times leading up to his execution. The chancery court ordered the issuance of a writ of mandamus requiring the prison warden to allow the prisoner’s minister to attend the prisoner at all times until the prisoner enters the death chamber. We reverse and remand. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and Remand ed W. F RANK C RAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. H IGHERS, J. and DAVID R. F ARMER , J., joined. Paul G. Summers, Attorney General, Michael E. Moore, Solicitor General, Mark A. Hudson, Senior Counsel, For Defendants- Appellants, Donal Campbell, et al Louis W. Oliver, III, Hendersonville, For Plaintiff-Appellee, Philip Workman OPINION Before his scheduled execution on March 30, 2001 at 1:00 a.m.^[1], Plaintiff/Appellee Philip Workman (“Mr. Workm an”) requested that his perso nal minister, Reve rend Joseph B . Ingle (“Reverend Ingle”), be permitted to be physically present with him at all times leading up to his execution. Ricky Bell (“Warden Bell” or “Ward en”), the prison warden, refused to allow Reverend final hours by a minister who has a personal relationship with the condemned person and who has been preparing the person for the execution. The only restriction the Legislature placed on the personal minister’s attendance of the condemned person is when the condemned person enters the death chamber (“the Warden of the state penitentiary in which the death chamber is located shall cause such death sentence to be carried out within an enclosure. . . in strict seclusion and privacy [emphasis added].” Tenn. Code Ann. § 40-23- 116(a).

The Court, the refore, conclu des, first, that Tennessee Code Annotated section 40-23-116(a)(3) accords the condemned person a right to be attended not just by a minister on the prison staff who has no relationship with the condemned person but with a “minister of the gospel who ha s been prep aring the co ndem ned perso n for death.” Secondly, the only restriction the statute places on that right of attendance is that the condemned person shall be alone in the d eath chamber. Thus, Warden Bell’s policy of requiring the personal minister to vacate the death cell at 10:00 p.m. infringes on the right accorded the condemned person by the Legislature to have a personal minister in attendance. Additionally, of some note is tha t the State has admitted that the State performs no preparation no con ducts any activity w ith respect to the condemned person from 10:00 p.m. through 12:00 a.m. The State has also admitted that the Reverend Joe Ingle has never threatened or breached security in his many prison visits.

It is therefore ORD ERED that the Court, pursuant to a writ of mandamu s, commands the Tennessee Department of Correction and Warden Ricky Bell to carry out the dictate of the Tennessee Legislature that a condemned person be permitted to prepare for death with the attendance of his perso nal minister, in this case the Reverend Joe Ingle, and that the Tenn essee Department of Correction and Warden Ricky Bell are enjoined from ejecting Reverend Joe Ingle from attendance until such time as the condemned person enters the death chamber. Pu rsuant to Tennessee Code Annotated section 40- 23-116 the Reverend Jo e Ingle is not permitted in the de ath chamber.

On April 25, 2001, Defendants filed a Motion to Reconsider or Alternatively to Alter or Amend the Judgment, which the Chancellor denied on June 6, 2001.

Defendants Campbell and Bell (“Defendants”) have appealed, and present the following three issues for review, as stated in their brief: (1) Whether the chancery court erred in issuing a writ of mandamus where T.C.A. § 40-23-116(a)(3) does not impose a nondiscretionary, ministerial duty; (2) Whether the chancery court erred in finding that T.C.A. § 40-23-116(a)(3) gives a condemned inmate the right to be attended by his personal minister until the time the inmate enters the death chamber; and (3) Whether the decision to restrict religious visits with the condemned inmate after 10:00 p .m. prior to th e executio n is not arbitra ry or otherw ise impro per.

We first address the second issue, whether the statute in question, T.C.A. § 40-23-116, provides Mr. Workm an the right to have his personal minister attend him at all times leading up to his sched uled exec ution.

T.C.A . § 40- 23-1 16 pr ovid es, in i ts enti rety:

§ 40-23-116. Capital punishment; procedure; witnesses

(a) In all cases in which the sentence of death has been passed upon any person by the courts of this state, it is the duty of the she riff of the county in which such sentence of death has been passed to remove the person so senten ced to death from such county to the state penitentiary in which th e death cha mber is loca ted, within a reasonable time before the date fixed for the executio n of the death sentence in the judgment and mandate of the court pronouncing the same. On the date fixed for such execution in the judgment and mandate of the court, the warden of the state penitentiary in which the death chamber is located shall cause such death sentence to be carried out within an enclosure to be prepared for that purpose in strict seclusion and privac y. The only witnesses entitled to be present at the carrying out of such death sentence are:

(1) The warden of the state penitentiary or the warden's duly auth orize d dep uty; (2) The sheriff of the county in which the crime was committed; (3) A priest or minister of the gospel who has been preparing the condemned person for death; (4) The prison physician; (5) Such attendants chosen and selected by the warden of the state penitentiary as may be necessary to properly carry out the execution of the death sentence; (6) A total of seven (7) members of the print, radio and television news media selected in accordance with the rules and regulations promulgate d by the depa rtment of corre ction. Those news media members allowed to attend any execution of a sentence of death shall make available cove rage of such execution to other news media members not selected to attend; and (7) Immediate family members of the victim who are eighteen (18) years of age or older. Such immediate family mem bers shall include the spouse, child (by birth or adoption), stepchild, stepp arent, parent, grandparent or sibling of the victim; prov ided, that members of the family of the condemned prisoner may be present and witness the execution. (8) One (1) defense counsel chosen by the condemned person; and (9) The attorney general and reporter, or the attorney general and reporter's designee.

(b) No other person o r persons than those m entioned in subsection (a) are allowed or permitted to be present at the carrying out of the death sentence. It is a Class C misdemeanor for the warden of the state penitentiary to permit any other person or persons than those provided for in subsection (a) to be present at such legal execution.

(c)(1) Photographic or recording equipment shall not be permitted at the execution site until the execution is completed, the body is removed, and the site has been restored to an orderly condition. However, the physical arrangement of the execution site shall not be disturbed.

(2) A violation of subdivision (c)(1) is a Class A misdemeano r.

(3) The department shall promulgate rules that establish criteria for the selection of news media representatives to attend an execution of a death sentence in accord ance with the Uniform Administrative Proce dure s Ac t, com pile d in t itle 4 , cha pter 5. In promulga ting such rules, the department shall solicit recommendations from the Tennessee Press Association, the Tennessee Associated Press Managing Editors, and the Tennessee Association of Broadcasters. For each execution of a death sentence, applications for attendance shall be accep ted by the department. When the number of application s require, lots to select news med ia representatives will then be drawn b y the warden of the state penitentiary at which such death sentence is to be carried out. All such drawings shall be condu cted in ope n meetings and notice shall be properly given in accordance with § 4-5-203.

(d) If the immediate family members of the victim choose to be present at such execu tion, they shall be allowed to wit ness the execution from an area that is separate from the area to which other witnesses are admitted. If facilities are not available to provide immediate family members with a direct view of the execution, the warden of the state penitentiary may broadcast the execution by means of a closed circuit television system to the area in which the immediate family members are located.

T.C.A. § 40-23-116 (Su pp. 2001)(emp hasis added). Con struction of a statute in its application to the facts of the case is an issue of law, and the appellate standard of review is de novo without any presumption of correctness given to the trial court’s conclusions of law. The most basic principle of statutory construction is to ascertain and give effect to the legislative intent without undu ly restricting or expan ding a statute’s coverage be yond its inten ded scop e. See Allen v. City of Gatlinburg, 36 S.W.3d 73 (Tenn. Ct. App. 2001). In determining the intent of the legislature, the court is to examine the natural and ordinary meaning of the language used without a forced or subtle construction that would limit or extend the meaning of the language. See Penley v. Honda Motor Co., 31 S.W.3d 181 (Tenn. 2000). “The statutory construction should reflect the meaning of the statute from the entire context thereof and from the statute’s general purpose.” Wachovia Bank of N.Carolina, N.A. v. Johnson, 26 S.W.3d 62 1, 624 (Tenn. Ct. Ap p. 2000).

In the instant case, the trial court construing the statute found that the legislature intended “by using the particular wording the minister ‘who has been preparing the co ndemned p erson for death’” that such person would be attended in his final hours by the minister until he en ters the death chambe r. We disagree with the trial co urt’s interpreta tion.

The plain language of T.C.A. § 40-23-116 describes only the manner in which priso n officials must carry out the death sentence and who may be present to witness the execution. In the phrase, “A priest or minister of the gospel who has been preparing the condemned person for death,” the words, “who has been preparing the condem ned person for death” describe only which priest or minister is legally entitled to be present at the prisoner’s execution. Mr. Workman does not cite, nor are we aware of, other statutory provisions whereby the Tennessee legislature provides a condemned prisoner a right to be attended by his personal minister until the time of execution.

Certa inly, the legislature may, as it has in the past, amend the death penalty statute to provide condemned prisoners with greater statutory rights,2 but that is a matter left solely to the legislature. We hold that T.C.A. § 40-23-1 16 does not pro vide condem ned prisoners a right to have th eir personal religious ministers present at all times leading up to their execution, nor does it require a prison warden to p rovide condem ned prisoners with su ch a right. We next address together the first issue concerning the use of mandamus and the third issue of whether the restrictive religious visit was imp roper. The writ of mandam us is never granted to control or coe rce the exerc ise of d iscret iona ry pow er by a governme nt official. See State v. Mayor & Aldermen, 195 S.W.2d 1 1 (1946); White's Creek T pk. Co. v. Marsh all, 61 Tenn . 104 (1872); Barnhart v. Neisler, 25 Tenn. 493 (1846). The object of a writ of mandamu s is to compel an official to perform an act which he has a legal duty to perform. See Bradley v. State ex rel. Haggard, 222 Tenn. 53 5, 438 S.W .2d 738 (1 969). In determining whether an act is a "ministerial act" for which mandamus may lie, courts look to whether the law defines the duties to be performed "with such precision and certainty as to leave nothing to the ex ercise of discretion or judgment." Lamb v. State, 207 Tenn. 159, 338 S.W.2d 584, 586 (1960)(quoting C.J.S. Mandamus § 63). Where the duty involves the exercise of discretion or judgement, the act is discretion ary. See id. A discretionary act, which will not support the issuance of a mandamus to compel performance, is defined as one done by an official who has lawful autho rity to determine whether or not he will perform the act. See Bradley v. State ex rel. Haggard, 222 Tenn. 535 , 438 S.W.2d 7 38 (1969).

Since we have h eld that T.C .A. § 40-23-116 do es not require a prison warden to allow a condemned prisoner the right to have his personal minister present until he enters the death chamb er, we must next determine whether W arden Bell acted prop erly in restricting visits by Mr. Workman ’s minister. Courts will not, by mandamus, disturb the decision and action of public officials vested in discretionary powers, "except where they act in an arbitrary and oppressive manner, or act beyond their jurisdiction, or where they refuse to assume a jurisdiction which the law devo lves upo n them." Peerless Constr. Co. v. Bass, 14 S.W.2d 73 2, 733-34 (Tenn .1929)(citations omitted).

In this case, the Warden’s discretion comes from Tennessee Department of Corrections policies regarding death row inmates. Specifically, Policy 506.16.2, Section VI.(C)(2)(b) provides:

A final visit by the inmate’s personal priest or minister may be permitted by the warden immed iately prior to the execution. This visit shall take place at the front of the inmate’s cell. This visit shall be limited to one (1) hour d uration. The warden shall decide the hours the visit will occur.

(emphasis added ). Warden Bell’s affidavit submitted to the trial court states, in part: subject to retaliation and harassment if their identities became known throughout the institution or to the public at large.

__________________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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