The Tennessee Supreme Court will hear the Nashville Banner’s appeal seeking to unseal judicial records that may shed light on claims that Davidson County Criminal Court Judge Cheryl Blackburn—who suffered a stroke in 2021—is incompetent. The Tennessee Supreme Court’s order granting the Nashville Banner’s application for permission to appeal is available here: https://horwitz.law/wp-content/uploads/Banner-Rule-10-Grant.pdf
The case arises from a criminal proceeding in Davidson County. On April 8, 2024, Judge Blackburn entered an order “recus[ing] herself from further presiding over the above captioned case.” The order offered no explanation for Judge Blackburn’s recusal. Nor did the court’s docket suggest what may have prompted it.
The Nashville Banner—a news organization—then engaged in newsgathering. Although no sealed documents were identified on the court’s docket, the Davidson County Criminal Court Clerk later confirmed to the Banner that there were actually five sealed filings in the case that the court’s docket did not reflect. The Clerk identified three of those sealed documents—which were filed shortly before Judge Blackburn’s recusal order entered—as:
1. John Doe’s Motion for Disqualification of the Trial Judge and For Continuance
2. Affidavit of John Doe In Support of John Doe’s Motion for Disqualification and to Continue
3. Affidavit of Jane Doe In Support of John Doe’s Motion for Disqualification and to Continue
These documents had been sealed without explanation in contravention of local court rules and long-settled Tennessee sealing precedent. Nevertheless, when the Banner moved to unseal the documents, Criminal Court Judge Angelita Dalton—who was now presiding over the case following Judge Blackburn’s recusal—declined to do so. Judge Dalton’s order states:
[T]his Court further finds that the public disclosure of these particular documents, especially at this premature juncture, would likely result in the publication of claims that (a) are currently insufficiently supported, (b) would annoy, embarrass, oppress, or create undue burdens for involved persons, (c) deny involved persons their rights to substantive, procedural, and administrative due process, and (d) delay court proceedings. The Court further finds that any substantiated concerns related to judicial competency may also be addressed through other appropriate avenues, which counsel for the existing parties are sufficiently equipped to pursue if they have not already.
Following an initial round of appellate review, the Tennessee Court of Criminal Appeals declined to unseal the subject documents. In its ruling, though, the Court of Criminal Appeals determined—without any party asserting the position—that “Rule 10 specifically limits the opportunity to seek appellate review in criminal cases to the State and the Defendant,” meaning that the Court of Criminal Appeals ruled that intervening media entities have no right to pursue an immediate appeal of trial court sealing determinations. Tennessee Rule of Appellate Procedure 10 does not restrict intervenors’ right of appeal in this way, though, and previous appellate cases hold differently. See, e.g., State v. Montgomery, 929 S.W.2d 409, 411 (Tenn. Crim. App. 1996) (granting Rule 10 application for permission to appeal by intervenor “the Memphis Publishing Company” in criminal case).
The Tennessee Supreme Court has now granted review of the Banner’s application for permission to appeal. Thus, the Tennessee Supreme Court will hear just its third media case in a decade.
“We are proud to represent the Nashville Banner in this important case, and we look forward to vindicating the public’s right to transparency,” said Horwitz Law, PLLC principal Daniel A. Horwitz, the Banner’s lead counsel. “The public is entitled to review judicial records that include claims that a judge may be incompetent, and the Banner is committed to ensuring that such records are not sealed from public view improperly.”
Tim Easter was an unlikely candidate to become a judge for the Tennessee Court of Criminal Appeals. In his youth, while driving 54 miles per hour in a 35-mile-per-hour zone, the Williamson County jurist killed a woman on her way to church. According to Metro police officer William Bay, the skidmarks from the accident—which “stretched about 140 feet”—“indicate that he was speeding.” Nevertheless, “no charges were filed against Easter,” who was later sued in connection with the incident. In a judicial application filed by Easter decades later, he misleadingly described the wrongful death matter as an “[a]uto accident case that was settled and dismissed[.]”
It is fair to wonder whether someone who came from a less privileged background—or who looked different than Easter does—would have been prosecuted for vehicular homicide under the same circumstances. At any rate, Easter does not appear to have experienced any consequences whatsoever.
With a background like this, one might reasonably expect Judge Easter’s jurisprudence—which is limited to appeals in criminal cases—to include some measure of grace. That expectation, however, would be wrong. Quite to the contrary, Easter distinguishes himself year after year as one of Tennessee’s most aggressively graceless judges. A recent indefensible decision—which the Tennessee Supreme Court has just designated “not for citation” after considering a Horwitz Law, PLLC amicus brief urging that result—illustrates the point.
Andre Terry is serving a life sentence after being convicted at trial for serious crimes. After exhausting his direct appeal rights, Mr. Terry filed a pro se petition for post-conviction relief. Like many such petitioners, Mr. Terry overlooked a form requirement: he neglected to sign and verify his petition under oath. After Mr. Terry was appointed an attorney, that common oversight was corrected with “no objection” from the State. The parties then proceeded to hearing, and Mr. Terry was denied post-conviction relief on the merits of his claims.
On appeal, Mr. Terry asserted that he should have been granted relief, while the State asserted that relief was properly denied to him. These typical events are hardly worthy of note. What is unusual is what happened next.
Despite the State of Tennessee declining to raise any argument on the matter, the Court of Criminal Appeals sua sponte “ordered supplemental briefing” as to: (1) whether Mr. Terry’s pro se post-conviction was an incurable “nullity” because it was originally unsigned, and (2) whether the effect of being a “nullity” was to deprive the trial court of subject matter jurisdiction to adjudicate the claims presented in it. The unsigned order—which ostensibly was issued based on party-presentation rules—set out in detail the argument it wanted the State to brief. Put another way: The Court of Criminal Appeals invited and detailed an argument for the State to make that the State both had not made for itself and affirmatively waived. Afterward, Judge Easter’s opinion adopted the invited jurisdictional argument and ordered Mr. Terry’s petition dismissed for lack of subject matter jurisdiction because it was originally unverified.
To understate the matter, there are several problems with this approach:
First, rather than respecting party-presentation rules, Judge Easter violated them. As the Tennessee Supreme Court recently explained in its seminal party-presentation decision, the principle of party presentation “rests on the premise that the parties ‘know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.” State v. Bristol, 654 S.W.3d 917, 923 (Tenn. 2022). Further, “in our adversarial system, the judicial role is not ‘to research or construct a litigant’s case or arguments for him or her, but rather to serve as ‘arbiters of legal questions presented and argued by the parties before them[.]’” Id. Suffice it to say that drafting an unraised argument for the State to brief, ordering the Parties to submit supplemental briefing on that argument, and then adopting the invited argument as the Court’s ruling is inconsistent with this principle. It also reasonably calls into question whether Easter, a former prosecutor, and his colleagues were acting as impartial arbiters or as advocates for a particular result.
Second, the argument that Judge Easter adopted has been rejected repeatedly by the Tennessee Court of Criminal Appeals in past cases, and it was foreclosed—at minimum—by binding Court of Criminal Appeals precedent. See Sexton v. State, 151 S.W.3d 525, 530 (Tenn. Crim. App. 2004) (“Although the comprehensive petition in the present case was not verified under oath, we do not believe the circumstances justified limiting the petitioner’s claims. . . . We conclude that the circumstances justify the petitioner’s claims being heard on their merits.”); see also Timberlake v. State, No. W2008-00037-CCA-R3-PC, 2009 WL 302294, at *2 (Tenn. Crim. App. Feb. 5, 2009) (“[t]he State, however, ignores the fact that we went on [in Sexton] to conclude that the post-conviction court should have allowed the petitioner the opportunity to verify her amended petition under oath instead of ruling it invalid due to lack of verification”). For whatever reason, though, Judge Easter’s opinion did not mention the precedent that foreclosed it along the way to changing Tennessee law in a way that precluded merits review of post-conviction claims due to a form deficiency.
Third, the argument is just wrong. There is a well-understood—and elementary—legal difference between “jurisdictional” rules (which are non-waivable and, when violated, deprive a court of authority to consider a litigant’s claim) and “claims-processing” rules (which are waivable and do not). There also are obvious reasons why the post-conviction verification requirement in question “represents a mere claims-processing rule”: a conclusion on which “virtually every court to consider the question” agrees. See Hughley v. Gov’t of Virgin Islands, 61 V.I. 323, 334–35 (2014) (collecting cases). Judge Easter’s opinion overlooked the entire concept, however, suggesting unawareness of the entire doctrine.
To understand why any of this matters, it is important to know that nearly every wrongly or unfairly convicted criminal defendant in Tennessee—including the Joseph Websters and Calvin Bryants of the world—relies on post-conviction processes for relief. Permanently foreclosing courts, on jurisdictional grounds, even from considering a defendant’s claims based on a technical form deficiency would consign such defendants to a fate where Tennessee’s courts are forever powerless to grant them relief even if courts agree their claims have merit. Initially failing to verify a post-conviction petition also is a common oversight, particularly given that post-conviction petitioners generally do not have the assistance of an attorney until after they file. Thus, Judge Easter’s opinion, if permitted to stand, would have cut off a huge number of defendants—including wrongfully convicted defendants—from court review and permanently deprived them even of the possibility of relief.
Given that our practice includes exonerating innocent clients through the post-conviction process, Horwitz Law cares about judicial efforts—like this one—to cut off our clients from receiving a hearing on their actual innocence claims. So we submitted an amicus brief detailing the severe flaws in Judge Easter’s opinion and asked the Tennessee Supreme Court to designate it non-citable. Fortunately, after considering Horwitz Law’s amicus brief on the matter, the Tennessee Supreme Court has now designated Judge Easter’s opinion “not for citation.” That uncommon designation renders it non-precedential and prevents it from causing any further mischief. Hopefully, in the future, Judge Easter won’t dangerously speed through controlling doctrine on the way to reaching a preferred destination, leaving skidmarks on the rights of the litigants whose cases he is charged with adjudicating impartially along the way.
Questions about this article? Contact the author at daniel [at] horwitz.law.
Strategic lawsuits against public participation—better known as “SLAPP-suits”—use the legal system to punish constitutionally protected speech.[1] The Tennessee Supreme Court has explained that “[t]he primary aim of a SLAPP is not to prevail on the merits, but rather to chill the speech of the defendant by subjecting him or her to costly and otherwise burdensome litigation.”[2] Using this definition, it is hard to argue that plaintiffs are engaged in anything other than quintessential SLAPP litigation when they: (1) sue someone for their speech; (2) run up a defendant’s litigation expenses for as long as possible before a hearing; and then (3) withdraw their claims just before a reviewing court can rule on them.
Fortunately, like many jurisdictions, Tennessee has enacted an anti-SLAPP statute called the Tennessee Public Participation Act, or the “TPPA.” As Tennessee’s Court of Appeals has explained, “the TPPA is largely intended to deter SLAPP lawsuits and prevent litigants from spending thousands of dollars defending themselves in frivolous litigation.”[3] “[T]housands of dollars,” it should be noted, is a dramatic undercount. Given Tennessee courts’ routine willingness to allow SLAPP-suit filers to delay proceedings through discovery, amendment, and other litigation tactics, the cost of defending a SLAPP-suit through a TPPA hearing routinely exceeds $25,000.00, and it often eclipses hundreds of thousands of dollars or, in some cases, millions.
In theory, the expenses imposed on SLAPP-suit victims do not matter at the end of the day. That is because the TPPA contains an expense-shifting provision—Tennessee Code Annotated section 20-17-107(a)—that requires trial courts to “award to the petitioning party: Court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition[.]” Thus, no matter how long the litigation takes, the TPPA assures SLAPP-suit victims that they will recover their expenses at the end of it. As a result, assuming a plaintiff’s ability to pay the award, the TPPA promises SLAPP-suit victims that they will (mostly[4]) be made whole when litigation ends.
Unsurprisingly, those who are engaged in abusive litigation that is intended to burden speakers with uncompensated expenses are uninterested in paying their victims. And to achieve their nefarious goals, they have employed a simple tactic: file SLAPP-suits; run up a defendant’s litigation expenses for as long as possible; and then voluntarily dismiss their claims on the eve of hearing before a court can rule on them. Lawyers who make SLAPP-suits their business also have employed this tactic over, and over, and over again, often nonsuiting literally minutes before hearing, the night before hearing, or even during a hearing on a TPPA petition. After doing so, they have insisted that SLAPP-suit victims are not entitled to recover a penny of their legal expenses, because the voluntary dismissal precludes all further litigation, and a court has never granted a petitioner’s TPPA petition.
If blessing such a tactic seems antithetical to what the TPPA was designed to accomplish, that is because it is. Filing a bogus speech-based lawsuit, imposing substantial litigation expenses, and—recognizing that one’s claims have no chance of prevailing—dismissing the case right before a court can rule is definitionally the behavior that the TPPA was designed to deter. Even so, dozens if not hundreds of plaintiffs have done exactly that in the short time since the TPPA was enacted in 2019.
The certainty of fee-shifting also is what permits lawyers to defend SLAPP-suit victims on a contingent basis. Without contingency representations, SLAPP-suit victims would be forced to expend—upfront—tens of thousands, hundreds of thousands, or even millions of dollars to defend their speech against bogus lawsuits: an amount of money that few speakers have to spend even if they wanted to. Further, when faced with the choice of taking down a negative Yelp! review or having to liquidate one’s life-savings to defend it, self-censoring to avoid (or end) litigation becomes an easy choice.
Sadly, in a unanimous October 9, 2024 opinion authored by Justice Jeffrey S. Bivins, the Tennessee Supreme Court has now blessed the tactic of filing SLAPP-suits, running up litigation expenses, and then parachuting out of the litigation without consequence by nonsuiting on the eve of hearing. The opinion arose out of the most sympathetic facts possible: a misbehaving landlord filing facially meritless litigation against speakers who successfully advocated for tenants that the landlord had tried to evict illegally—outside the legal process and in contravention of a federal eviction moratorium—by cutting off their heat during the middle of winter. In response to TPPA petitions filed by those speakers, landlord Robert E. Lee Flade ran up the speakers’ litigation costs for roughly seven months; delayed a ruling following an initial TPPA hearing by convincing a trial court to allow him to take discovery first; and then voluntarily dismissed all of his claims just before a second TPPA hearing, leaving the sued speakers with tens of thousands of dollars in legal expenses that the Tennessee Supreme Court has now held they cannot recover due to Mr. Flade’s strategic dismissal.
The calamitous consequences of the Tennessee Supreme Court’s opinion in Flade—which strips the TPPA of its deterrent value—are assured. Simply put: No longer do calculated abusers of the legal system have to worry about being ordered to pay their victims’ legal fees. Instead, such abusers of the legal process are now empowered—as a matter of right—to file SLAPP-suits; wait and see if their victims are willing or able to hire an attorney to defend against them; run up their victims’ litigation expenses as long as possible before a TPPA hearing; and then voluntarily dismiss their claims before a court can rule. Because lawyers who defend SLAPP-litigation—even successfully—can no longer be assured that they will be paid for doing so, Flade also represents the end of SLAPP-suit contingency representations in Tennessee.
Confronted with the inevitable results of sanctioning this proven abuse, the Tennessee Supreme Court’s opinion explains that “[w]e do not intend to minimize [these] concerns. However, the[se] policy-based arguments are best addressed to the legislative branch.” Thus, according to the Tennessee Supreme Court, its hands were tied by the text of Tennessee Rule of Civil Procedure 41.01(1), which “permits liberal use of voluntary nonsuits at any time prior to ‘final submission’ to the trial court for decision in a bench trial or in a jury trial before the jury” absent certain specified exceptions.
Lest anyone be fooled, the Tennessee Supreme Court has never followed this approach to interpreting Rule 41.01(1) before now. For example, despite the Rule’s explicit prohibition against taking a voluntary dismissal “when a motion for summary judgment made by an adverse party is pending,” the Tennessee Supreme Court has held that “it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”[5] The Tennessee Supreme Court has found other “implicit” exceptions to Rule 41.01(1)’s text, too, including inventing an entire category of exceptions for what it calls “The Vested Rights Implied Exception.”[6] Thus, far from interpreting Rule 41 in a way that ties the judiciary’s hands, the Tennessee Supreme Court has interpreted it atextually in a way that furthers judicial policy preferences throughout the Rule’s existence.
With these considerations in mind, no one should be misled by the Tennessee Supreme Court’s claim that this result was compelled by text. It was not—and the TPPA plausibly fell within three recognized exceptions to Rule 41.01(1) (two of them text-based) anyway. The Tennessee Supreme Court’s effort to distinguish as “inapposite” TPPA-based claims from several other claims that Tennessee law holds courts may adjudicate post-nonsuit—including claims “involving sanctions under Rule 11 of the Tennessee Rules of Civil Procedure,” “an award of damages for a frivolous appeal under Tennessee Code Annotated section 27-1-122,” and “legislation concerning ‘abusive civil actions’”—also demonstrates the malleability of the judiciary’s approach to the question presented by itself.
In summary, as it has before, the Tennessee Supreme Court made a policy choice; here, to defang the TPPA and reward those who file SLAPP-suits in Tennessee with the freedom to do so without fear of incurring consequences. The repercussions of that decision will be borne most heavily by the people who need the TPPA most—speakers of modest means who need lawyers to defend them on contingency—who will now be forced to incur significant debt to defend their speech; self-censor to avoid or end litigation; or defend themselves pro se. No one should celebrate this policy choice, and Tennessee’s free speech protection scorecard has now been downgraded as a result of it.
Questions about this article? Contact the author at daniel [at] horwitz.law.
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[1] Daniel A. Horwitz, The Need for a Federal Anti-SLAPP Law, N.Y.U. J. Legis. & Pub. Pol’y Quorum (June 15, 2020), https://perma.cc/A8F4-FQ6G.
[2]Charles v. McQueen, 693 S.W.3d 262, 267 (Tenn. 2024).
[4] By statute, a defending litigant can only recover expenses “incurred in filing and prevailing upon the petition[.]” Tenn. Code Ann. § 20-17-107(a)(1). Thus, not all expenses are compensable, so the provision falls slightly short of this goal.
[5]See, e.g., Stewart v. Univ. of Tennessee, 519 S.W.2d 591, 593 (Tenn. 1974) (“it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”); Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975) (“where a summary judgment is pending, the right to a nonsuit rests in the sound discretion of the trial judge.”).
[6]Flade v. Shelbyville, No. M2022-00553-SC-R11-CV, 2024 WL 4448736, at *13 (Tenn. Oct. 9, 2024).
A snappy weekly newsletter from the lawyers at Horwitz Law, PLLCsummarizing the week’s decisions from the Tennessee Court of Appeals.
January 1–5, 2024
“Extremely intoxicated, hostile, and belligerent” Army lieutenant makes a series of increasingly poor decisions. After a night out drinking at a bar during a bachelor party, he removes his shirt, places it on the ground, and starts urinating on it. He then gets himself arrested and charged with public intoxication, resisting arrest, and assault on a police officer. Afterward, he engages in extensive Facebook messenger correspondence with his “companion” from the evening—distinct from his “then-girlfriend, now wife”—in an attempt to ascertain what happened, and she tells him exactly how intoxicated, aggressive, and violent he was. The Secretariat of bad judgment then sues his arresting officers “for defamation and negligence per se” (claiming, among other things, “that he was not intoxicated, aggressive, or violent when he was arrested”). During the litigation, he repeatedly conceals and otherwise lies about his damning correspondence with his “companion,” which he alternately claims did not exist, he forgot about, his wife told him to delete, and/or was work product created at the direction of his attorney. Davidson County Circuit Court: Your “blatant prevarication and misconduct warrants the most severe sanctions,” so you are ordered to pay over $60,000 in fees and costs, and all of your claims are dismissed with prejudice. Tennessee Court of Appeals: And those sanctions “were directly related to the discovery abuses and were not excessive under the circumstances.” (DAH)
After Husband and Wife divorce, Wife sues Husband based on a provision of their marital dissolution agreement that says she gets half the equity in their formerly shared home “when the house sells.” Chancery Court for Montgomery County: Wife gets half the equity as of the date of the Parties’ divorce in 2019. Tennessee Court of Appeals: No, wife gets half the equity as of the date of the house’s sale in 2023. But Husband gets an unjust enrichment credit for the twenty-two consecutive monthly payments that he has already paid Wife based on their alleged oral agreement about the amount of her equity interest, even though the agreement violates the statute of frauds. This case is otherwise remanded so Husband can introduce evidence about improvements and other expenditures he made and so Wife can introduce evidence that she’s entitled to reimbursement for her rent because Husband kicked her out before the house was sold. Also, the relevant provision of the Parties’ “not a model of clarity” MDA—which resulted from “the parties’ self-drafting of a form document they obtained from an unknown source”—is internally inconsistent, so this entire opinion is declared non-citable. (DAH)
Homeowner contracts with Contractor to build a “log home.” Contractor contracts with Subcontractor to provide some labor and materials. Subcontractor: I did more than $60,000 of work for which Contractor never paid me, so I’m entitled to payment from Homeowner, who flipped the property (which cost $382,000.00 to build) for a cool $1.5 million after construction was completed. Tennessee Court of Appeals: Not yet you aren’t. Although Tennessee law allows unpaid subcontractors to file unjust enrichment claims against property owners, they have to exhaust their available remedies against the contractors with whom they were in privity first, and getting a default judgment against the deadbeat contractor without demonstrating that you can’t collect on it isn’t exhaustive enough. (DAH)
Company sues Employees for holding events using the company’s name and failing to remit proceeds. During the litigation, Employees’ counsel “inadvertently included”—twice—a privileged email from one of the Employees in his trial court filings. Employees’ counsel then continues to file the privileged email in the court record and “discusses the substance and contents of the email at length” at least twice more after that. Employees: Company shouldn’t get to use the privileged email, particularly because Company “trap[ped]” us into making a bunch of apparently false statements using information gleaned from it. Tennessee Court of Appeals: It’s true that Tennessee Code Annotated § 23-3-105 subjected the email to the attorney-client privilege. But Tennessee Rule of Evidence 502 requires privilege holders to take “reasonable steps to prevent disclosure,” and repeatedly filing and citing the email was definitely not that, so the email is now admissible. The waiver of privilege is limited to the email alone, though; it doesn’t extend to “any undisclosed communications concerning the same subject matter.” (DAH)
Company A initiates arbitration proceeding against Companies B and C, wins, and then petitions the Davidson County Chancery Court to confirm the arbitration award. Companies B and C: Hold on, we didn’t even know the proceeding existed until we received the motion to confirm the award! Davidson County Chancery Court: That’s too bad; you all objected too late, so the arbitration award is confirmed. Tennessee Court of Appeals: Actually, because “absence of notice may warrant vacatur under the [Federal Arbitration Act],” the award is vacated for now, in part because Company A failed to include a ton of information in the appellate record that would allow us to determine when notice was provided. On remand, the trial court must determine both whether one of the companies even agreed to arbitrate and when the companies actually received notice of the arbitration, too. (DAH)
Father and Stepmother sue to terminate Mother’s parental rights over Child. Father/Stepmother: Child lives with us, and Mother hasn’t seen her or supported her in years, among other issues. Chancery Court for Sumner County: And those are both valid grounds for termination, but Tennessee’s termination of parental rights statutes recognize “that terminating an unfit parent’s parental rights is not always in the child’s best interests,” and it is not in Child’s best interest here. Tennessee Court of Appeals: “Upon review of the evidence, we agree with the trial court’s assessment and findings.” (Editorial note: Mother nearly had her parental rights terminated because she waived multiple potentially valid defenses, which Tennessee law really should not allow.) (DAH)
A victory for Horwitz Law, PLLC client Theresa Baldwin! In 2022, Ms. Baldwin was sued for a cornucopia of speech-based tort claims after she criticized two adults (one of them an oft-sanctioned lawyer) who took her minor daughter into their home and elsewhere against Ms. Baldwin’s instructions to stay away. And because—after more than a year of litigation—the Plaintiffs failed to establish any element of their various claims, the Tennessee Public Participation Act means that Ms. Baldwin wins and gets to recover her legal fees. Read the Circuit Court of Robertson County’s Order Granting Defendant’s Tenn. Code Ann. § 20-17-104(a) Petition to Dismiss the Plaintiffs’ Amended Complaint Pursuant to the Tennessee Public Participation Act here: https://horwitz.law/wp-content/uploads/2022-247-Order-Granting-TPPA-Petition.pdf.
The Tennessee Supreme Court unanimously reversed a Tennessee Court of Appeals opinion that had found there was clear and convincing evidence that both parents of a young infant found with 22 rib fractures had committed “severe child abuse.” Instead, the state high court found in In Re Markus E. that there was insufficient evidence that the parents’ actions or omissions were “knowing.”
The case involved a prematurely born infant – known in court papers as Markus E. – who suffered from a variety of ailments, including neonatal Graves disease, an overactive thyroid condition, chronic subdural hematomas, bronchitis and — most disturbingly – 22 rib fractures.
A child abuse specialist at Vanderbilt determined that the likely cause of the fractures was child abuse. Because of this diagnosis, the Department of Children’s Services (DCS) got involved and ultimately sought a termination of the parental rights of both the mother and father of Markus E.
In September 2015, a juvenile court in Davidson County found Markus E. to be a dependent and neglected child. The parents appealed the dependency and neglect finding to circuit court. While this appeal was pending, DCS moved to terminate both parent’s parental rights. Ultimately, in May 2019, a trial court issued a 73-page opinion granting DCS’s petition to terminate the parental rights of both parents. The court credited expert testimony that the rib fractures were caused by child abuse. The Tennessee Court of Appeals also found clear and convincing evidence to support the ground of severe child abuse as to both parents.
On appeal, the Tennessee Supreme Court reversed in its May 19, 2023. Writing for the majority, Justice Holly Kirby explained that to terminate parental rights, a party, such as DCS in this case, must first establish a ground of termination and then show that termination of parental rights is in the best interests of the child.
DCS sought two grounds in this case: (1) severe child abuse for both parents; and (2) substantial noncompliance with the permanency plan by the mother.
The bulk of the Tennessee Supreme Court’s analysis examined what is “knowing” within the meaning of the “severe child abuse” statute in Tennessee. The statute defines “severe child abuse” as follows:
The knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily injury or death and the knowing use of force on a child that is likely to cause serious bodily injury or death.
Kirby explained that “a parent’s failure to protect can be considered knowing if the parent was deliberately ignorant, as where the parent avoids actual knowledge of the abuse or neglect but is aware of facts, circumstances, or information that would put a reasonable parent on notice of the risk and the need to protect the child.”
She added that a person can knowingly commit severe child abuse “when he or she is either in deliberate ignorance of or in reckless disregard of the information that has been presented to him or her.”
She also explained that in these type cases, “the evidence shows that one parent inflicted the abuse and the other parent failed to protect the child from it.”
Kirby noted that Markus E. suffered many physical injuries and problems and that there was no finding that these were non-accidental, inflicted injuries.” The mother, in fact, had taken her child to a variety of hospitals and health care providers when she had custody. Furthermore, Kirby wrote that “[b]ecause rib fractures are not necessarily accompanied by external bruising or other identifiable body damage, the source of the pain, even from an acute or recent injury, may not be obvious.”
Kirby concluded that “the evidence in the record does not clearly and convincingly show that the failure of Mother and Father to protect Markus from the non-accidental rib fractures was ‘knowing.’”
Justice Sarah Campbell wrote a short concurring opinion that agreed with nearly all of Justice Kirby’s analysis. However, Campbell wrote that in interpreting legislature purpose, the emphasis must be on the statutory text: “My only point of disagreement with the majority opinion is its suggestion that statutory interpretation requires consideration of a statute’s purposes and objectives separate and apart from its text.”
Questions about this article? Contact daniel [at] horwitz.law.
Procedural rules matter. They help ensure that litigation moves along in an orderly and understandable way. They can also be used as a shield and, when an opponent has misunderstood them, as a sword.
That is the story of Ingram v. Gallagher, a healthcare liability action (better known as a “medical malpractice” claim) filed against a physician, a hospital, and two other defendants. After filing suit, the plaintiff filed an amended complaint naming only the physician as a defendant. Under Tennessee law—Tennessee Rule of Civil Procedure 15.01, in particular—plaintiffs may amend once “as a matter of course” at any time before a responsive pleading has been served, so the plaintiff’s amended complaint became the operative pleading in the case immediately upon its filing.
Five minutes after amending his complaint, the plaintiff filed a notice of voluntary dismissal—often called a “nonsuit”—regarding the non-physician defendants. He also tendered a proposed order dismissing those defendants without prejudice. The intended purpose of the filing was to protect the plaintiff’s right to refile his claims against the dismissed defendants within the following year—something that Tennessee’s savings statute permits as a matter of right when a plaintiff has taken a nonsuit. The trial court then entered the nonsuit order, which the plaintiff later sought to alter or amend so he could reinstate his claims against the other defendants. The plaintiff also attempted to amend one of the earlier-dismissed defendants back into the case through another amended complaint several months later.
The problem with this approach, as a unanimous opinion authored by Justice Bivens explained, was that the plaintiff had already filed his first amended complaint, which eliminated any other defendants as parties, before he filed his nonsuit. Under Tennessee law, the effect of an amended complaint is to “supersede[] and destroy[]” the original complaint as a pleading, essentially rendering it a nullity.[1] Thus, after the plaintiff’s amended complaint was filed, there was only one defendant in the case. And because of that, there were no other defendants for the trial court to dismiss from the action, rendering void both the plaintiff’s attempted nonsuit dismissing those defendants and the trial court’s order purporting to dismiss them.
The practical effect of this chronology was that the plaintiff could not seek to alter or amend the trial court’s nonsuit order, which was void. By amending the other defendants out of his complaint, the plaintiff also functionally abandoned his claims against those defendants. And because the issue of whether Tennessee’s savings statute applies to abandoned, rather than dismissed, claims is not entirely clear (the text of Tenn. Code Ann. § 28-1-105(a), which requires a “judgment or decree,” suggests that the answer is no), the Plaintiff’s subsequent attempt to reinstate his claims against one of the earlier defendants now risks being time-barred—an issue that lower courts will eventually have to sort out on remand.
Interestingly, nobody involved in the case appears to have noticed these issues, either. The plaintiff certainly did not. Neither, it seems, did the trial court. Instead, the issue was apparently identified for the first time by the Tennessee Supreme Court after it accepted review, pretermitting its consideration of the issue that it had actually granted review to address: whether a voluntary dismissal of one of multiple defendants in a Governmental Tort Liability Act case may be set aside through a motion to alter or amend. Due to a procedural misstep that risks foreclosing the plaintiff’s claims against that defendant on a different ground, though, that issue does not appear to matter in this case any longer.
Malicious prosecution—a common law tort claim—is designed to afford civil redress to people who are subjected to maliciously false lawsuits or criminal charges. Between the two, being an innocent person who is wrongfully charged with a crime based on malicious falsehoods is worse. As the U.S. Supreme Court has observed, “[a]rrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”[1] Put another way (as the Fifth Circuit has):
“[A] wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.”[2]
With this context in mind, the tort of malicious prosecution exists to deter people from initiating knowingly baseless charges for malicious purposes and to enable those who are harmed by such charges to be made whole. Nobody seriously disputes the public policy value of such a tort. Indeed, independent of civil liability, it is a crime to initiate a knowingly false report to a law enforcement officer for a reason.[3]
By the same token, society has strong interests in encouraging people to report crimes and to insulate those who do so in good faith from retaliatory lawsuits. Nobody reasonably disputes this, either. That is why Tennessee (rightly) sets a high bar for malicious prosecution claims and recognizes multiple easy-to-prove defenses along with three separate (and overlapping) common law and statutory immunities from suit—all of which function to protect good-faith reporters from any serious fear of liability and enable them to recover their legal expenses whenever they are improperly sued.
As of yesterday, though, based on practical realities of the criminal justice system that the Tennessee Supreme Court’s unanimous opinion in Mynatt v. NTEUutterly fails to acknowledge, what was previously a high bar has become impossible to clear in nearly all criminal cases. The essential holding of the Court’s opinion is that “plaintiffs can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused.”[4] Because Tennessee’s criminal judgment form does not contemplate such a finding, though—and because innocent criminal defendants lack any power to force courts or prosecutors to declare their innocence on their dismissal documents—this standard is illusory as a practical matter. Thus, when a prosecutor determines that a defendant is innocent and opts to dismiss the charges against him as a result, a defendant who wishes to maintain a subsequent malicious prosecution claim must now object to the dismissal of the charges and demand a trial instead.
This will never (and should never) happen. It also makes little sense to treat criminal defendants whose cases reach trial more favorably than those against whom evidence was so weak that a prosecutor agreed to dismiss charges without one. That is not just the author’s view, either. As Justice Kavanaugh explained for the United States Supreme Court when assessing the same issue under federal law just last year:
“[R]equiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a [malicious prosecution] claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense.”[5]
It is not entirely clear from the Tennessee Supreme Court’s opinion—which contains several glaring errors (like misstating the relevant statute of limitations applicable to criminal proceeding-based malicious prosecution claims and mischaracterizing the substance of the trial court order under review)—that even an acquittal after trial will suffice, either. As even the most naïve observers of the criminal justice process are aware, an acquittal does not actually reflect a judgment “due to the innocence of the accused,” which is what the Tennessee Supreme Court now says is the standard. To the contrary, an acquittal “does not prove innocence but, rather, indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime.”[6] Independently, because a separate element of malicious prosecution claims is that a charge must have been initiated without probable cause, charges that reach trial traditionally preclude malicious prosecution liability based on the “interim adverse judgment rule” on the ground that a charge “had sufficient potential merit to proceed to trial[.]”[7] A rule that acquitted criminal defendants may (maybe) maintain malicious prosecution claims—but that defendants whose cases were dismissed before trial cannot—is also asinine, “upside down[,]” and has the “perverse consequence of ensuring that some of the most deserving plaintiffs, those who are falsely accused and whose cases were dismissed early on, could not sue . . . .”[8]
All of this is deeply unfortunate. And the basis for the ruling—which overrules two centuries of Tennessee precedent in favor of adopting the standard for malicious prosecution claims that arise out of civil proceedings—is even worse. Unlike criminal defendants, civil defendants who are victimized by fraudulent civil litigation have a wide range of tools at their disposal under Tennessee law that enable them to be made whole—including the ability to pursue sanctions even after dismissal,[9] prevent non-merits dismissals merely by moving for summary judgment,[10] and obtain up to $10,000.00 following early-stage dismissals under Tenn. Code. Ann. § 20-12-119(c). To the extent that the Tennessee Supreme Court was concerned about exposing good-faith reporters to discovery, people who are sued for malicious prosecution for reports to law enforcement also have the ability to stay discovery—every time[11]—merely by petitioning under the Tennessee Public Participation Act, and they can win immediately (and recover their legal expenses) simply by demonstrating that they reported in good faith.
The practical result of the Tennessee Supreme Court’s ruling is that—with the exception of criminal defendants whose charges are dismissed at the earliest possible stage of proceedings for lack of probable cause—no Tennessee criminal defendant will ever be able to maintain a malicious prosecution claim. A person who falsely accuses, in bad faith, someone of committing a crime can also largely insulate themselves from subsequent malicious prosecution liability just by testifying falsely at a preliminary hearing or filing a false report that facially establishes probable cause. It goes without saying that society will not benefit from this standard or the perverse incentives it creates.
Considered broadly: If the Tennessee Supreme Court wants to shut the door to righteous civil claims—something it has been increasingly aggressive about doing—it should just say so. Pretending that claims are available when—as a practical matter—they are illusory compromises the judiciary’s integrity and misleads the public by suggesting that wrongs have remedies when they do not. Judges—who enjoy absolute immunity from nearly all such claims of wrongdoing—also are not likely to appreciate the genuine consequences of such an approach. Perhaps it will take a member of the judiciary being wrongfully arrested based on maliciously false criminal charges, suffering the personal and professional humiliation of a false-but-widely-publicized criminal accusation, and finding him or herself without redress after the charge is dismissed for that to change. Until then, Mr. Mynatt deserved better.
[8] Tr. of Oral Argument at 73:10–17, Thompson v. Clark, 142 S. Ct. 1332 (2022) (No. 20-659), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-659_lkgn.pdf.
[9] Menche v. White Eagle Prop. Grp., LLC, No. W2018-01336-COA-R3-CV, 2019 WL 4016127, at *10 (Tenn. Ct. App. Aug. 26, 2019).
[11]Cf. Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 734, 74 P.3d 737, 741 (2003) (noting that California’s anti-SLAPP law “potentially may apply to every malicious prosecution action”).
As news of Dominion Voting System’s record-shattering settlement in its defamation case against Fox News spread across newswires, the Tennessee Court of Appeals quietly issued a landmark defamation decision of its own. In particular, in a little-noticed April 18, 2023 ruling in Pragnell v. Franklin, No. E2022-00524-COA-R3-CV, 2023 WL 2985261 (Tenn. Ct. App. Apr. 18, 2023), the Court of Appeals settled three critical and previously unanswered questions about the Tennessee Public Participation Act, Tennessee’s still-novel anti-SLAPP statute.
Prangell arose from a nasty fallout among former coworkers at investment advisory firm Innovative Advisory Partners. After four members of the firm left to form a new investment group, a dispute arose and litigation ensued. Shortly after that litigation was initiated, Innovative Advisory Partners amended something called a “Form U5 Uniform Termination Notice” to state that its former members had been discharged due to “[v]iolation of client privacy rights, misrepresentation and selling away”—the latter meaning selling securities without approval or authorization. Maintaining that such allegations had been made maliciously and with actual knowledge that the statements were false, the former members sued Innovative Advisory Partners and its CEO for defamation.
The Plaintiffs’ defamation suit began with the trial court issuing a categorically unconstitutional prior restraint enjoining the Defendants from publishing further information that the Plaintiffs contended was false—a frustratingly common occurrence in Tennessee that received no further mention. The Defendants then petitioned to dismiss the Plaintiffs’ lawsuit under the Tennessee Public Participation Act. As grounds, the Defendants asserted that the Plaintiffs had filed the complaint in response to Defendants’ exercise of their right to free speech, that the Defendants’ speech related to a matter of public concern, and that the statements in their amended U5 disclosure were true.
The Plaintiffs responded in opposition to the Defendants’ TPPA Petition, appending several declarations that at least facially supported their disputed defamation claim. The Plaintiffs further maintained that the Defendants’ TPPA Petition was frivolous and that they were entitled to attorney’s fees for having to respond to it. The Defendants then replied with evidence of their own.
Upon review of the Parties’ filings, the trial court found that the TPPA applied, it denied the Defendants’ TPPA Petition on its merits, and it ruled that it was not filed frivolously. Everyone appealed. Thereafter, the Court of Appeals accepted interlocutory review, which TPPA petitioners and respondents may seek as a matter of right under Tenn. Code Ann. § 20-17-106 (“The court’s order dismissing or refusing to dismiss a legal action pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.”).
Upon review, the Court of Appeals resolved three previously unanswered questions about how critical provisions of the TPPA operate, all of which will provide substantial guidance for litigants and trial courts in future TPPA cases.
First, the Court of Appeals settled the definition of “prima facie” under the TPPA. The term is used twice in the statute. It appears, first, in Tenn. Code Ann. § 20-17-105(a), which provides at step one of the TPPA’s burden-shifting framework that: “The petitioning party has the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.” It also appears a second time, in Tenn. Code Ann. § 20-17-105(b), at step two of the TPPA’s burden-shifting framework, which provides that: “If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.”
The reason the definition of “prima facie” matters—and why the quantum of evidence necessary to satisfy the standard is so critical—is because it affects whether the TPPA applies at all, and if so, whether a defendant’s TPPA petition should be granted. Previous litigants—including Daily Wire host Candace Owens en route to her record-setting TPPA win against a failed congressional candidate earlier this year—had fought over the proper definition of “prima facie” within the meaning of the TPPA, given that the term been defined differently across Tennessee law in several circumstances. Cf. State v. Bryant, 585 S.W.2d 586, 589 (Tenn. 1979) (“‘prima facie’ may be used in various senses, with a range of meaning”). Resolving this dispute, the relevant portion of the Court of Appeals’ opinion states that:
Tennessee courts have defined the prima facie case standard in other contexts, thus rendering it a term with a well-recognized meaning in the common law. See, e.g., Anderson v. State, 55 Tenn. 13, 14, 1873 WL 5945, at *1 (1873) (“Prima facie evidence is that evidence which is sufficient to establish a fact unless rebutted.”); Union Planters Corp. v. Harwell, 578 S.W.2d 87, 93 (Tenn. Ct. App. 1978) (“As we understand it, a prima facie case is made out when some credible proof … is presented on the issues required to be offered in evidence by a plaintiff for a plaintiff’s recovery.”); Pickard v. Berryman, 142 S.W.2d 764, 769 (Tenn. Ct. App. 1939) (explaining that “prima facie case” “means merely that [the plaintiff’s] evidence, assuming it to be true, is sufficient to prevent his suit being dismissed”); Macon Cnty. v. Dixon, 100 S.W.2d 5, 9 (Tenn. Ct. App. 1936) (“Prima facie evidence is that which, standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed. It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for that purpose.”).
Pragnell, 2023 WL 2985261, at *10.
Thus, the prevailing definition of “prima facie” for purposes of Tenn. Code Ann. § 20-17-105(a) and (b) requires that “‘some credible proof’” be presented to support a litigant’s claim. Id. at *11 (quoting Union Planters Corp., 578 S.W.2d at 93). The Court of Appeals also held that this standard does not apply to the third step of the TPPA’s burden-shifting framework (regarding a defendant’s ability to establish a valid defense) and remanded for reconsideration of the matter, explaining that:
To the extent that the initial two steps of the dismissal procedure require only a prima facie showing pursuant to the express statutory language, see Tenn. Code Ann. § 20-17-105(c), the rules of statutory construction instruct that we should infer “that if the Legislature had intended to enact a certain provision missing from the statute, then the Legislature would have included the provision. Thus, the missing statutory provision is missing for a reason—the Legislature never meant to include it.” Effler v. Purdue Pharma L.P., 614 S.W.3d 681, 689 (Tenn. 2020). In other words, with respect to establishing a defense to the defamation claim, Defendants would be required to make more than a prima facie demonstration in order to achieve dismissal of the defamation claim.
Id. at *12.
Second, in a blockbuster footnote that bears heavily upon the multibillion-dollar defamation claim pending between SmileDirectClub and NBC Universal, the Court of Appeals held that no inferences are to be drawn in favor of the opposing party at the TPPA stage. Id. at n.4 (“We note that the TPPA does not state that the evidence must be viewed in the light most favorable to a particular party, as is the case with summary judgment proceedings.”). This means that—unlike the standard for summary judgment—evidence furnished at the TPPA stage should not be construed liberally by a trial court or in a manner that is favorable to the party furnishing it. The most significant practical result of this holding is that in public-figure defamation cases—in which plaintiffs must demonstrate actual malice to prevail—a plaintiff must immediately come forward with clear and convincing evidence of actual malice in order to survive dismissal.
Third, the Court of Appeals resolved the standard for frivolity. The question arose out of the Parties’ dispute over Tenn. Code Ann. § 20-17-107(b), which provides that: “If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney’s fees incurred in opposing the petition.” Id. Construing the meaning of “frivolous” for TPPA purposes, the Court of Appeals ruled that a TPPA petition is frivolous when it is “baseless or ‘utterly lacking in an adequate factual predicate as to make the filing of such a [petition] highly unlikely to succeed.” Pragnell, 2023 WL 2985261, at *15 (quoting Milan Supply Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 161 (Tenn. 2021)). Affirming the trial court’s ruling that the Defendants’ TPPA Petition had not been filed frivolously, the Court of Appeals also concluded (as onlookers had assumed) that a trial court’s determination on the matter is reviewable only for abuse of discretion.
On May 24, 2022, a gunman massacred 19 elementary school students and two teachers in Uvalde, Texas. 376 law enforcement officials who responded to the scene—who lied about at least a dozen critical facts of the shooting afterward—stood idly by while the gunman’s hour-long execution of young children and their teachers unfolded before them. “Law enforcement responders failed to adhere to their active shooter training, and they failed to prioritize saving the lives of innocent victims over their own safety,” an Interim Report by the Texas Legislature’s Investigative Committee concluded. The same committee also determined that law enforcement’s fatal failures were not attributable to “malice or ill motives”; instead, “systematic failures and egregious poor decision making” were the culprits.
In a unanimously wrong decision issued by the Tennessee Supreme Court on February 16, 2023, Tennessee’s high court has ruled that if this exact scenario unfolds in Tennessee tomorrow, then the government need not pay for any of the harm caused. Only a concurring opinion by Justice Kirby—which expressly (and blessedly) calls for review of Tennessee’s outmoded, extra-statutory, judge-invented “public duty doctrine”—explains why. The practical effect of the Court’s opinion, though, is clear: If heads, then the government wins. If tails, then the plaintiff suing the government loses. In virtually all instances, however, the government will not have to pay.
To understand how Tennessee law arrived at this disturbing point, some background is useful. At common law, governments were generally immune from any lawsuit based on the doctrine of “sovereign immunity.” The origins of that despotic doctrine are unapologetically monarchical. “‘[D]eeply rooted in feudal notions of the divine right of kings,’ sovereign immunity, which protects the state and its political subdivisions from tort liability, is based upon the premise that ‘the King can do no wrong.’”[1]
In 1975, a closely divided Tennessee Supreme Court disagreed about whether sovereign immunity was part of Tennessee’s common law. Disputing that it was, two dissenting Justices complained that interpreting Tennessee’s straightforward law on the matter “does not require brilliance—just intellectual honesty”; that application of sovereign immunity had “produced ludicrous results”; that the Tennessee Supreme Court had woven “a tangled web . . . to protect and promote an unjust rule of law”; and that they would “condemn this legal monstrosity to the oblivion which it so richly deserves.”[2] The dissenting Justices’ views did not carry the day.
Sovereign immunity’s questionable origins aside, all agree that Tennessee’s General Assembly has authority to enact legislation allowing the government to be sued for tortious misconduct. In the 1970s, a slightly more evolved Tennessee General Assembly also did just that. In particular, “[i]n 1973, following the lead of other states that had abolished or limited sovereign immunity by statute or judicial decision, our General Assembly passed the Tennessee Governmental Tort Liability Act[.]”[3]
The GTLA’s most important provision—Tenn. Code Ann. § 29-20-205—states that: “[i]mmunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment” except for specified exceptions (such as intentional misconduct) that are listed in the statute. Based on this provision and the sole purpose underlying it (to allow tort victims of government negligence to recover), one might reasonably expect that the government could be sued successfully when its negligence causes harm. Given another judicially manufactured common law doctrine—the “public duty doctrine”—that appears nowhere in the GTLA, though, the practical reality is quite different.
“The public duty doctrine originated at common-law and shields a public employee from suits for injuries that are caused by the public employee’s breach of a duty owed to the public at large.”[4] This is a complex way of saying that if a public employee owes a duty to every member of the public, then the government is immune from suit if that duty is violated as to any specific person. Thus, based on this doctrine, the Tennessee Supreme Court explained in 1975 that “[i]t is the settled law in this state that private citizens, as such, cannot maintain an action complaining of the wrongful acts of public officials unless such private citizens aver special interest or a special injury not common to the public generally.”[5]
To be sure, the Tennessee Supreme Court is aware that “[t]he public duty doctrine is not expressly listed as an exception to the waiver of immunity for injuries resulting from negligent acts or omissions of governmental employees” set forth in Tenn. Code Ann. § 29-20-205,[6] which instead delineates ten exceptions that are not the public duty doctrine. Given that, how can it be that the public duty doctrine is still applied as an exception to liability in negligence cases arising under the GTLA? The answer is straightforward and unsettling: Because regardless of the statute that the Tennessee General Assembly enacted, the Tennessee Supreme Court preferred a policy that prevented the government from being sued instead. “We think that on balance, the State is better served by a policy that both protects the exercise of law enforcement discretion and provides accountability for failure to perform a duty,” the Tennessee Supreme Court explained in 1995.[7] Given the Tennessee Supreme Court’s traditional fondness of proclaiming that “[i]t is not the role of this Court to substitute its own policy judgments for those of the legislature[,]”[8] the Court’s explicit embrace of such judicial policymaking is curious.
In any case, since 1995, the Tennessee Supreme Court has held that “the public duty doctrine was not abolished by the Governmental Tort Liability Act and that sound policy reasons support its continuance[.]”[9] As a result, in order to sue the government for negligence caused by an employee, a plaintiff must generally raise a negligence claim under the GTLA and then overcome the separate immunity conferred by the public duty doctrine as well.
Until yesterday, doing so was difficult but not impossible. In particular, based on the same 1995 decision discussed above, the Tennessee Supreme Court held that plaintiffs could overcome the public duty doctrine’s additional layer of immunity when one of the following three circumstances applied to establish a “special duty”:
1) officials, by their actions, affirmatively undertake to protect the plaintiff, and the plaintiff relies upon the undertaking; 2) a statute specifically provides for a cause of action against an official or municipality for injuries resulting to a particular class of individuals, of which the plaintiff is a member, from failure to enforce certain laws; or 3) the plaintiff alleges a cause of action involving intent, malice, or reckless misconduct.[10]
The first two exceptions are sufficiently rare that few plaintiffs can rely on them. Thus, in virtually all cases in which the public duty doctrine applies, plaintiffs need to plead a negligence claim under the GTLA and also allege “reckless misconduct” to overcome the public duty doctrine. The reason why was simple: The GTLA itself provides that intentional and malicious conduct remain subject to immunity.[11] Thus, in most cases, the only non-exempt theory of relief that permitted a plaintiff to navigate both the GTLA’s and the public duty doctrine’s overlapping layers of immunity were negligence claims that involved reckless misconduct.
Based on this difficult-but-not-impossible state of affairs, at least some plaintiffs who found themselves the victims of government negligence could and did recover for their injuries. For instance, in April 2022, the Court of Appeals reinstated a negligence claim filed by a gunshot victim who alleged negligence on the part of a sheriff’s deputy, unanimously explaining that “[t]he complaint also contains sufficient factual allegations of reckless misconduct such that the special duty exception to the public duty doctrine could apply.”[12] Thus, the Plaintiff’s negligence-combined-with-recklessness claim went forward. Other victims of governmental negligence that involved recklessness were able to survive early dispositive motions and then recover, too.
No longer. Courtesy of the Tennessee Supreme Court’s decision in Lawson v. Hawkins Cnty., 2023 WL 2033336, at *6 (Tenn. Feb. 16, 2023), the Tennessee Supreme Court has now determined that:
The [GTLA] removes immunity only for “negligent” employee acts. Common-law precedent and statutory context make clear that the term “negligent” in section -205 means ordinary negligence, not gross negligence or recklessness. The Court of Appeals erred by holding otherwise.
The reasoning underlying the opinion is exceedingly poor. For instance, the opinion relies heavily on Tennessee’s COVID liability statute—which was enacted in 2020, and which also had little bearing upon and did not purport to address the question presented—to determine the meaning of a statute enacted almost fifty years earlier. That is an unusual departure from traditional interpretive methods, particularly given that the opinion was authored by the same Justice who—only six months ago, and in another government-favoring opinion that similarly raised eyebrows—took pains to emphasize the importance of examining “[o]riginal public meaning” and “authoritative dictionaries published around the time of a statute’s enactment[,]”[13] none of which appears to have been consulted. Also ignored was directly relevant Tennessee statutory law, which has long recognized that simple negligence claims may include recklessness. See, e.g., Tenn. Code Ann. § 29-39-104(a)(1) (providing that recklessness may support an award of punitive damages in negligence cases); Wilson v. Americare Sys., Inc., 397 S.W.3d 552, 553 (Tenn. 2013) (remanding for consideration of punitive damages award in suit arising from, among other things, reckless misconduct in case where “the negligence of the staff, the owner, and its management company caused Ms. Farrar’s death.”). The decision conflicts with recent authority from other jurisdictions that bears directly on the point, too. See, e.g., Weis v. Baumann, No. DBDCV216038973S, 2021 WL 4895122, at *3 (Conn. Super. Ct. Sept. 22, 2021) (“While not all negligent acts are reckless, reckless conduct will almost certainly always also be negligent.”).
Given the continued application of the public duty doctrine, the practical effect of the Lawson Court’s ruling is certain: Virtually no plaintiff will be able to recover against the government in a negligence case. In particular, to be able to sue under the GTLA, a plaintiff is now required to assert a simple negligence claim alone, because claims of recklessness are not subject to liability. After asserting such a simple negligence claim, though, the plaintiff’s claim will be dismissed for failure to assert recklessness based on the public duty doctrine’s overlapping layer of immunity forbidding simple negligence claims. So heads, the government wins, and tails, the plaintiff suing the government loses.
One Justice, at least, has recognized the “Catch-22 for plaintiffs” that the Tennessee Supreme Court has now assured. Specifically, in a concurring opinion, Justice Kirby noted that:
If the plaintiff’s complaint alleges that the governmental entity’s employee was reckless in order to qualify for the “reckless misconduct” special duty exception to the public duty doctrine, then dismissal under the GTLA is likely because immunity is not removed for reckless conduct. Conversely, if the complaint alleges that the governmental employee was negligent in order to avoid dismissal under the GTLA, the plaintiff risks dismissal under the public duty doctrine by making his claim ineligible for the special duty exception for reckless misconduct.[14]
Justice Kirby’s concurrence also calls upon the Tennessee Supreme Court to consider whether it should “discontinue application” of the outmoded public duty doctrine “in deference to the statutes governing immunity” that do not embrace it.[15]
Regrettably, the Tennessee Supreme Court’s decision in Lawson is yet another example of courts undermining citizens’ ability to sue the government in the face of statutes that expressly provide they can. Courts’ extra-statutory eagerness to gut the remedies afforded by 42 U.S.C. § 1983—the most important civil rights statute ever enacted—through the judge-made doctrine of qualified immunity is perhaps the best known example. Less well known is the fact that courts have gutted, for instance, the remedies afforded by statutes like the law enforcement proviso of the Federal Tort Claims Act following a successful reform effort that was designed to ensure that federal law enforcement officials could be sued for intentional torts. In every such case, though, courts’ response to legislative efforts to afford citizens a remedy has been to ensure that that remedy is as useless as possible and to leave tort victims like Mrs. Lawson without a remedy.
On a broader level, this reliable pattern is corrosive to democracy. Unlike tacitly intimidating judges by visiting their homes, the right way to advocate for policy change is democratically—by petitioning legislators to change the law by adopting needed reforms, and by voting them out of office when they refuse. When courts disrespect the results of the democratic process after citizens have advocated for reform successfully, though—for instance, when they rule that “on balance, the State is better served by a policy” that protects the government from being sued regardless of the legislation that the democratic process produced—the resulting message that judges (most of whom are former government lawyers) do not actually respect the democratic process is clear. Unless and until the judiciary as a whole sheds its heavy preference for government-friendly outcomes, though, it seems unlikely that confidence in the American judiciary—currently at a historic low—is at risk of improving anytime soon.
In a unanimous panel opinion issued on August 12, 2022, the U.S. Court of Appeals for the Sixth Circuit has ordered that Horwitz Law, PLLC appellate client Kenneth Mynatt’s malicious prosecution and civil conspiracy claims against the United States—maintained under the Federal Tort Claims Act—be reinstated and permitted to move forward. The Court’s unanimous ruling, authored by Judge Richard Griffin, sets critical Circuit precedent that presenting false evidence to secure an indictment is not “discretionary” conduct within the meaning of the Federal Tort Claims Act’s “discretionary function” exception.
“The question here is whether presenting false evidence (in testimonial or documentary form) to a prosecutor and then to a grand jury is the type of conduct ‘that the discretionary function exception was designed to shield.’ The answer here is plainly no,” Judge Griffin explains. In so holding, the Sixth Circuit has joined other federal courts in concluding that “[t]here can be no argument that perjury is the sort of legislative or administrative decision grounded in social, economic, and political policy that Congress sought to shield from second-guessing.” In reversing Middle District of Tennessee District Court Judge William Campbell’s contrary ruling, the Panel further “agree[d] with Mynatt that the district court framed the issue incorrectly and erred[.]”
“We are proud to have represented Mr. Mynatt on appeal and to have won him a unanimous, precedent-setting reversal that permits his Federal Tort Claims Act claims against the United States to move forward,” said Horwitz Law, PLLC principal Daniel A. Horwitz, who represented Mr. Mynatt on appeal along with co-counsel Lindsay Smith.
Read the Sixth Circuit’s unanimous ruling in Kenneth J. Mynatt v. United States of America, et al., here. Mr. Mynatt’s briefing in the case and selected media coverage are available below.
As part of Horwitz Law, PLLC’s appellate practice, Horwitz Law has successfully represented appellate clients in high-stakes, high-profile appeals before the United States Court of Appeals for the Sixth Circuit, the Tennessee Supreme Court, the Tennessee Court of Appeals, the Tennessee Court of Criminal Appeals, the Tennessee Supreme Court Special Workers’ Compensation Appeals Panel, and in administrative agency appeals to Davidson County Chancery Court. Horwitz Law also provides amicus curiae representation in both state and federal appellate courts. If you are seeking appellate representation, you can purchase a consultation from Horwitz Law here.
