All posts by DanielAHorwitz

Lawless idiots in Tennessee’s General Assembly threaten Nashville’s most respected trial judge and judicial independence itself

By Daniel A. Horwitz

The Tennessee General Assembly is not exactly known for its constitutional literacy.  Its members famously—and proudly—attempt to violate the Constitution on a seemingly weekly basis, costing taxpayers tens (if not hundreds) of thousands of dollars per case and millions of dollars each year when they succeed.

Historically, many have explained away Tennessee’s legislative spigot of unconstitutionality as just another manifestation of the General Assembly’s gleeful stupidity.  By coming after Davidson County Chancellor Ellen Hobbs Lyle, however—a veteran judge appointed by a Republican Governor, and one of Tennessee’s most widely respected jurists—the General Assembly has made clear that its routine incompetence is also paired with a large helping of malice toward constitutional constraints themselves.  Disturbingly, though, while other legislative malpractice is generally remediable through judicial review, the Tennessee House GOP’s latest foray into lawless action is a direct assault on the separation of powers that threatens the independence of Tennessee’s judiciary itself.

The relevant background is as follows: In the summer of 2020, as Tennessee was being ravaged by a deadly pandemic that spread through in-person contact, several voters filed lawsuits in Davidson County Chancery Court seeking to expand absentee ballot access.  The combined lawsuits involved the following two distinct categories of plaintiffs who sued for the right to cast an absentee ballot during the COVID-19 pandemic:

(1) “persons with special vulnerability to COVID-19 and persons who are caretakers for persons with special vulnerability to COVID-19;” and

(2) “persons who neither have special vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to COVID-19,” but who were nonetheless worried about the consequences of becoming infected with COVID-19 or spreading COVID-19 to others.

At the time the cases were pending before Chancellor Lyle, the State of Tennessee took the position that neither category of voters qualified to cast an absentee ballot under applicable Tennessee law.  Thus, the State defendants contended that both categories of voters would have to vote in person, or else, they would have to forgo their right to vote at all.

Upon review of the evidence before her, Chancellor Lyle ruled that “the State’s restrictive interpretation and application of Tennessee’s voting by mail law (Tennessee Code Annotated section 2-6-201), during the unique circumstances of the pandemic, constitutes an unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.”  As a consequence, Chancellor Lyle ordered the State of Tennessee to permit both categories of voters to vote by absentee ballot during the 2020 elections.  Of some note, thirty-four states and the District of Columbia already allowed any voter to vote by absentee ballot during non-pandemic times, and virtually every jurisdiction other than Tennessee had taken significant additional steps to accommodate pandemic circumstances.  Tennessee has also long permitted no-excuse absentee ballot voting for certain favored categories of voters, such as voters who are “sixty years of age or older.”  Those responsible for selectively slicing and dicing absentee ballot access in this way can presumably explain why.

Unhappy with being ordered to expand absentee ballot eligibility to vulnerable voters, their caretakers, and others during a pandemic, the governmental defendants in the case did two things after Chancellor Lyle ruled against them.  First, they asked the Tennessee Supreme Court to take up and review Chancellor Lyle’s order immediately.  Second, they violated her order in material respects, prompting Chancellor Lyle to state—apparently unforgivably—“shame on you.”

While the State’s appeal was pending before the Tennessee Supreme Court, the State defendants—through the Tennessee Attorney General’s Office—abruptly reversed course as to whether the first category of voters listed above was qualified to vote by absentee ballot under existing law.  Specifically, during oral argument before the Tennessee Supreme Court, the Tennessee Attorney General’s Office adopted the irreconcilable and novel position that “persons with special vulnerability to COVID-19 and persons who are caretakers for persons with special vulnerability to COVID-19” already qualified to vote by absentee ballot under the following two provisions of Tennessee law:

(C) The person is hospitalized, ill or physically disabled, and because of such condition, the person is unable to appear at the person’s polling place on election day; or

(D) The person is a caretaker of a hospitalized, ill or disabled person[.]

Tenn. Code Ann. § 2-6-201(5)(C) and (D) (2014 & Supp. 2019).

Two aspects of this concession are worthy of emphasis.  The first is that it is not the position that the State of Tennessee took while the case was before Chancellor Lyle.  The second is that it is not actually what the law says.  Simply put: Fear of becoming “hospitalized, ill or physically disabled” is not the same thing as being “hospitalized, ill or physically disabled.”  Because forcing vulnerable people to take on a genuine risk of death in order to vote would be an unconstitutional burden on the right to vote, though—precisely what Chancellor Lyle had ruled—the State defendants and the Tennessee Attorney General’s Office opted to change state law unilaterally in order to avoid an adverse constitutional ruling.  Of note, months later, Tennessee Attorney General Herbert Slatery—who is not famous for honesty—would go on to ask the U.S. Supreme Court to void the entire U.S. Presidential election on the basis that certain other states had done the same thing.

Upon review, the Tennessee Supreme Court issued a partially unanimous and partially split opinion.  To begin, given the State’s above “concession” during oral argument regarding the first category of medically vulnerable voters and their caretakers, the Tennessee Supreme Court unanimously agreed that such voters could vote by absentee ballot.  In particular, the Tennessee Supreme Court’s opinion stated:

At oral argument before this Court, the State conceded that, under its interpretation of Tennessee Code Annotated section 2-6-201(5)(C) and (D), persons who have underlying medical or health conditions which render them more susceptible to contracting COVID-19 or at greater risk should they contract it (“persons with special vulnerability to COVID-19”), as well as those who are caretakers for persons with special vulnerability to COVID-19, already are eligible to vote absentee by mail. We hold that injunctive relief is not necessary with respect to such plaintiffs and persons. We instruct the State to ensure that appropriate guidance, consistent with the State’s acknowledged interpretation, is provided to Tennessee registered voters with respect to the eligibility of such persons to vote absentee by mail in advance of the November 2020 election.

Thus, the Tennessee Supreme Court held that Chancellor Lyle’s injunction compelling that result was no longer necessary given the State’s modified position, which fully conceded the issue.

Next, the Tennessee Supreme Court issued a 4-1 ruling that the second category of voters—those who did not have special vulnerabilities to COVID-19—could not vote absentee, because four Justices determined that the burden that COVID-19 imposed on healthy voters’ right to vote was not unreasonable.  Accordingly, a majority of the Court reversed Chancellor Lyle’s ruling with respect to “persons who neither have special vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to COVID-19” alone.

Now seven months later, dozens of Republican members of Tennessee’s House of Representatives not only remain upset with Chancellor Lyle’s order—they seek to remove her from her office because of it.  The reason?  An allegation of judicial overreach.  Specifically, State Rep. Tim Rudd—the Resolution’s main sponsor—contends:

“The U.S. Constitution plainly states ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations’ (Article I, section 4),’ Rudd said. “The last time I looked, the words, ‘Judiciary having the power to hold elections’ was [sic] not in the U.S. Constitution or the Tennessee State Constitution.”

Again, two matters are worthy of emphasis.  The first is that Representative Rudd appears to be unfamiliar with what actually occurred during the litigation before Chancellor Lyle, because the scope of Article I, section 4—an issue that the United States Supreme Court recently declined to reviewwas not even presented in the case.  Readers will search the Tennessee Supreme Court’s opinion in vain for any reference to it.  The reason?  Chancellor Lyle’s order was a ruling that a Tennessee election law abridged a constitutional right as applied to pandemic circumstances—a ruling that is not even theoretically in conflict with Article I, section 4.  By contrast, what the Tennessee Attorney General and the State defendants in the case did—abruptly change the meaning of state election law during the middle of litigation without any legislative approval or supporting statutory basis for doing so—may well have contravened Article I, section 4.  Consequently, if that is Representative Rudd’s concern, then he is attempting to remove the wrong public officials from office.

The second matter is that seeking to remove a judge from office because the judge ruled that a state statute is unconstitutional is, itself, unconstitutional.  If removal were permitted under these circumstances, the result “would be monstrous and wholly abhorrent to fundamental ideas of justice and judicial independence,” and “the judiciary would no longer be an independent and co-ordinate branch of the government, but a mere servile dependency.”  That is not the author’s characterization.  It is what the Supreme Court of Tennessee ruled regarding the Tennessee Constitution’s removal provision in 1899, when it clearly and unmistakably held that the General Assembly would be forbidden from removing a judge on the basis that the judge “had declared unconstitutional a particular enactment of the legislature.”  See McCulley v. State (State Report Title: The Judges’ Cases), 102 Tenn. 509, 53 S.W. 134, 138 (1899).

Instead, judges may only be removed for valid legal cause, such as misconduct in office.  See, e.g., In re Dender, 571 S.W.2d 491, 492 (Tenn. 1978) (“Article VI, Sec. 6[ ] provides sanctions to be applied against a judge guilty of official misconduct.”); Tenn. Op. Att’y Gen. No. 93-21 (Mar. 12, 1993) (“Removal under Article VI, Section 6 must be for cause, affecting the judge personally or the administration of his office. This requirement prohibits the possibility of arbitrary removals.”) (citation omitted).  In 1987, the Tennessee Supreme Court also expressly reaffirmed that “the removal contemplated by Article VI, section 6 [must be] for cause affecting the official personally or the administration of his office, to be effected after notice and trial.  In re Murphy, 726 S.W.2d 509, 513 (Tenn. 1987).  And while other (Republican) judges’ actual misconduct in office has curiously been ignored by the General Assembly, at least where Chancellor Lyle is concerned, no misconduct has even plausibly been alleged.

Put another way: The claim that Chancellor Lyle violated any law at all is not a serious one.  She adjudicated a legal dispute that was brought to her, which is what judges do.  On appeal, the State of Tennessee outright conceded part of what she ruled, and the Tennessee Supreme Court issued a split opinion reversing her ruling on another aspect of the case.  Unsurprisingly, given the importance of an independent judiciary, removal under these circumstances is not only improper—it is illegal.

Neither is Representative Rudd’s apparent upset about Chancellor Lyle tsk-tsking the State defendants for violating her order a removable offense.  Up until the moment of reversal, Chancellor Lyle’s orders were indisputably valid, and the parties in the case were obligated to follow them.  As the Tennessee Supreme Court has made clear many times: “An order is not rendered void or unlawful simply because it is erroneous or subject to reversal on appeal.  Erroneous orders must be followed until they are reversed.” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Authority, 249 S.W.3d 346, 355 (Tenn. 2008) (citations omitted).  Nonetheless, the State defendants did not comply with her orders.  The legal term for this is “contempt.”  For reasons that are frankly inexplicable, the Tennessee Attorney General’s Office and governmental defendants also routinely violate or otherwise fail to comply with court orders.  Thus, if anything, consequences far more severe than the words “shame on you” were warranted.

In summary: Representative Rudd and his clown car are not only, yet again, attempting something that is constitutionally forbidden—they are threatening the independence of Tennessee’s judiciary in the process.  This threat is intolerable and unacceptable.  Their lawless behavior should be condemned by anyone who cares about judicial independence, the Constitution, or the most basic tenets of the rule of law as a consequence.

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Happy 1-3-121 Day to (Almost) All Tennesseans!

By Daniel A. Horwitz

Few would disagree that the government shouldn’t be permitted to act illegally.  In a frighteningly large number of instances, though—due to outmoded doctrines like sovereign immunity, qualified immunity, and absolute immunity for certain government officials—the government can act illegally without experiencing legal consequences for doing so.  The result of that legal construct is that government officials are often free to violate state statutes or provisions of the Tennessee Constitution and the U.S. Constitution without risk, leaving those who are victimized by governmental misconduct unable to do anything about it.

Happily, in 2018, the Tennessee General Assembly enacted a little-noticed law that has had profound practical effects.  Codified at Tenn. Code Ann. § 1-3-121, it provides that:

“Notwithstanding any law to the contrary, a cause of action shall exist under this chapter for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.  A cause of action shall not exist under this chapter to seek damages.”

As a result of Tenn. Code Ann. § 1-3-121, it is now possible for victims of governmental misconduct in Tennessee to obtain certain forms of relief—specifically, declaratory judgments and injunctions—regarding illegal or unconstitutional governmental actions.  And obtain relief under Tenn. Code Ann. § 1-3-121 they have.  As a few examples:

1.  Tennessee’s Bureau of Ethics and Campaign Finance, Registry of Election Finance has been permanently enjoined from enforcing an unconstitutional law that allowed partisan political action committees to participate in the political process just before an election, while prohibiting non-partisan political action committees from doing the same.

2.  Metro Nashville and its ex-Director of Schools have been permanently enjoined from enforcing a contractual gag order against dissenting School Board Members that prevented them from criticizing the ex-Director of Schools—a provision that was also declared illegal as a violation of the First Amendment and multiple state provisions.

3.  A criminal law that exclusively prohibited “false” statements about political candidates—including satire and parody—in campaign literature has been declared unconstitutional under the First Amendment.

4.  The Tennessee Board of Cosmetology and Barber Examiners has been permanently enjoined from enforcing a law that prevented a man from working as a barber solely because he did not have a high school diploma.  And:

5.  The State of Tennessee has been permanently enjoined from implementing a selectively-targeted school voucher law in violation of the Home Rule provision of the Tennessee Constitution.

These examples are not exhaustive.  For example, a lawsuit is presently pending under Tenn. Code Ann. § 1-3-121 to enjoin notorious private prison operator CoreCivic from systematically refusing to maintain a constitutionally adequate level of inmate safety and systematically failing to provide inmates constitutionally adequate health care at its scandal-prone Trousdale Turner Correctional Center.  Additionally, even failed lawsuits—like a lawsuit filed by the Tennessee Democratic Party and U.S. Senate candidate Marquita Bradshaw regarding public records access—have been adjudicated on their merits due to Tenn. Code Ann. § 1-3-121, rather than being dismissed upfront based on the premise that the government cannot be sued at all.

All of this is great news if you believe that the government should be held accountable for breaking the law.  To be sure, though, enacting Tenn. Code Ann. § 1-3-121 should not actually have been necessary.  At least since the Tennessee Supreme Court’s decision in Colonial Pipeline Company v. Morgan—a 2008 opinion addressing litigants’ right to sue the government for declaratory and injunctive relief regarding constitutional violations—it has been clear that “sovereign immunity simply does not apply to a declaratory judgment action challenging the constitutionality of a statute against state officers.”  That decision, however, did not stop Tennessee’s flagrantly dishonest and democracy-hating Attorney General from arguing that the Tennessee Supreme Court’s decision should be ignored and that such claims should be disallowed anyway.[1]  Thus, the General Assembly felt compelled to make clear, beyond any serious dispute, through Tenn. Code Ann. § 1-3-121 that: “Notwithstanding any law to the contrary, a cause of action shall exist under this chapter for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.”  Remarkably, the Attorney General’s Office continues to argue that such lawsuits still should not be allowed regardless of what Tenn. Code Ann. § 1-3-121 unambiguously says on the matter.  Unsurprisingly, those arguments have not proven successful.

Tenn. Code Ann. § 1-3-121 also falls short in a critical respect.  In particular, it makes clear that “[a] cause of action shall not exist under this chapter to seek damages.”  Consequently, because damages generally are not allowed in Tennessee for state constitutional or statutory violations under any other provision, either, many individuals who are deprived of their rights or injured by illegal governmental conduct are left without a complete remedy.  Thus, to ensure that the government can be held fully accountable and deprived of any incentive to act illegally, there remains work left to be done to vindicate the Tennessee Constitution’s still-illusory guarantee that: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”

Nonetheless, it is clear at this point that Tenn. Code Ann. § 1-3-121 has ushered in a new era of governmental accountability across Tennessee.  Thus, to everyone except government officials who behave illegally: Happy 1-3-121 Day to you and yours.

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[1] When pressed during oral argument on the issue in the past, the Office of the Attorney General has been somewhat more candid about its actual position on the matter:  It believes that “Colonial Pipeline was wrongfully decided,” and that it “is an overbroad decision.”  See Transcript of Aug. 17, 2018 Hearing in Zarate v. The Tennessee Board of Cosmetology and Barber Examiners, Davidson County Chancery Court Case No. 18-534-II, p. 11, lines 9–13.

Davidson County Chancery Court Invalidates School Board Censorship Clause in Ex-MNPS Director Shawn Joseph’s Severance Agreement

In an order issued earlier this afternoon, Davidson County Chancery Court Judge Ellen Hobbs Lyle ruled in favor of Plaintiffs Amy Frogge, Fran Bush, and Jill Speering, who earlier this year sued Metro and ex-MNPS Director Shawn Joseph over the legality of the School Board censorship clause contained in Joseph’s severance agreement.  In a Memorandum Order, Chancellor Lyle struck down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.

Among other things, the clause prohibited elected School Board members even from truthfully criticizing “Dr. Joseph and his performance as Director of Schools.”  Upon review of it, Chancellor Lyle ruled that the clause violated the Plaintiffs’ First Amendment rights, unlawfully prohibited them from speaking honestly with their constituents, and violated established Tennessee public policy.  As a result, the clause was invalidated as unenforceable.  Metro and Joseph will additionally be required to pay the Plaintiffs’ “reasonable costs and attorney’s fees,” which have been pledged to charity.

“This is a landmark victory on behalf of both elected officials’ free speech rights and citizens’ right to hear from their elected representatives,” said attorney Daniel Horwitz, who represented all three Plaintiffs.  “Metro and Joseph should be ashamed of their efforts to gag elected officials and prevent them from speaking honestly with their constituents about issues of tremendous public importance, and their illegal attempt to do so should serve as a costly warning to other government officials to think twice before violating the First Amendment.”

Daniel Horwitz is a First Amendment lawyer who represents clients across Tennessee.

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New at the Tennessee Free Speech Blog

By Daniel Horwitz:

As readers of this blog will be aware, its editor has expanded its focus to topics well beyond the Tennessee Supreme Court.  In an effort to focus coverage on free speech issues, the author has also started a separate blog—the Tennessee Free Speech Blog—devoted specifically to free speech cases across Tennessee.  Recent posts from that blog are linked below:

Tennessee Free Speech Blog:

Second-Ever Anti-SLAPP Petition Granted Under the Tennessee Public Participation Act, $26,500.00 in Attorney’s Fees and Sanctions Awarded to Prevailing Defendant

Defending Against Malicious Prosecution Claims in Tennessee

Not With a Bang, But With a Whimper: Strip Club and Valet Parking Company’s SLAPP-Suit Against Neighbors, Councilman Ends Quietly After Total Loss in Five Separate Courts

Fired Preschool Teacher Loses Defamation, False Light Claims Against Church Preschool Due to Common Interest Privilege, Absence of Damages

Clumsy court ruling allows SLAPP-suit to move forward against State Representative John Mark Windle

Tennessee Court of Appeals: You (Still) Can’t Sue People For What They Say During Judicial Proceedings

Tennessee Court of Appeals to Public Officials: Get Ready For Loads of Libel Lawsuits

Knoxville News Sentinel, Reporter Jamie Satterfield Win Dismissal of Defamation Lawsuit

First-Ever Anti-SLAPP Petition In Tennessee Granted in Lawsuit Regarding Negative Yelp Review

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Tennessee Supreme Court Issues Orders Related to Coronavirus Pandemic

By Daniel Horwitz:

In an effort to keep Tennessee’s judiciary functioning during the midst of the coronavirus pandemic, the Tennessee Supreme Court has issued the following orders relating to court operations, CLE, and other proceedings:

Central provisions include that “[d]eadlines set forth in court rules, statutes, ordinances, administrative rules, or otherwise that are set to expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through Wednesday, May 6, 2020,” and that “[a]ll in-person proceedings in all state and local courts in Tennessee, including but not limited to municipal, juvenile, general sessions, trial, and appellate courts, shall be suspended from the close of business on Friday, March 13, 2020, through Thursday, April 30, 2020” absent certain specified exceptions.

As longtime ScotBlog readers are aware, the author has been socially distancing from this blog’s original purpose—summarizing Tennessee Supreme Court decisions and reflecting on other interesting legal issues in the Volunteer State—for quite some time now due to an exploding speech defense, election law, and wrongful death practice that has left little time for regular commentary. As a result, if you, your associates, or your law students would like to fill that void and publish on a platform that still receives thousands of unique visitors each month despite a delinquent editor, please email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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First-Ever Anti-SLAPP Petition In Tennessee Granted in Lawsuit Regarding Negative Yelp Review

On July 1, 2019, the Tennessee Public Participation Act—Tennessee’s first meaningful anti-SLAPP statute—took effect. The statute dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. It also equips people targeted by Strategic Lawsuits Against Public Participation (“SLAPP-suits”) with important tools to secure the dismissal of meritless claims early on in litigation. Perhaps most importantly, the TPPA allows prevailing defendants to get their full attorney’s fees paid by a losing plaintiff if a petition to dismiss is granted. Previously, prevailing defendants were (generally) only able to recover a maximum of $10,000 under Tennessee’s frivolous lawsuit statute, and they were only eligible to do so if a plaintiff failed to state a claim upon which relief could be granted.

Several defendants quickly benefited from the TPPA’s added protections after the statute took effect, resulting in plaintiffs quickly dropping defamation claims or providing additional bases for dismissal in speech-based lawsuits that were ultimately dismissed on other grounds. Today, however, in a ruling by Wilson County General Sessions Judge Barry Tatum, the first-ever petition to dismiss a plaintiff’s claims under the Tennessee Public Participation Act has been granted.

The case arose out of a lawsuit filed by Dr. Kaveer Nandigam and his corporation, Nandigam Neurology, PLC, against Kelly Beavers regarding a negative Yelp review. After Ms. Beavers took her father to see Dr. Nandigam and had a terrible experience, she exercised her First Amendment right to leave a negative review on Yelp!, a popular consumer review website. Dr. Nandigam quickly threatened to sue her if she did not remove the review, and ultimately, he did sue her for defamation and false light invasion of privacy regarding it when she refused.

After Dr. Nandigam dismissed and then refiled his lawsuit against her, Ms. Beavers filed an immediate Petition to Dismiss the Plaintiffs’ claims under the TPPA. Earlier this morning, her petition was granted. Thus, pending a potential appeal to the Tennessee Court of Appeals, all of the Plaintiffs’ claims against her have been dismissed with prejudice.

“This is a huge win for Kelly Beavers and the First Amendment, and it’s a huge loss for Dr. Nandigam and anyone else who would abuse the legal process to promote censorship of honest, critical consumer reviews,” said Daniel Horwitz, a speech defense lawyer who represented Ms. Beavers. Ms. Beavers’ claims for attorney’s fees and sanctions against both Dr. Nandigam and his attorney, Bennett Hirschhorn (a real estate lawyer and landlord whose relevant First Amendment experience otherwise appears limited to having been charged with “distributing pornographic photographs” after graduating law school), remain pending.

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Joseph Webster’s Wrongful Conviction Gets the “Undisclosed” Treatment

Joseph Webster—the Nashville man whose case earlier this year became the first in history to be approved for reinvestigation by the Davidson County District Attorney’s Conviction Review Unit—has officially gone national. After a series of explosive local stories by WPLN’s Julieta Martinelli and Fox 17’s Dennis Ferrier, the Undisclosed Podcast—a popular program dedicated to exploring wrongful convictions that is coming off a string of successful exonerations in Philadelphia—has aired the first episode of its new series on Joseph Webster’s case. The episode can be viewed here.

Webster’s conviction has attracted widespread coverage due in part to its sensational details—a man serving a life sentence for a crime committed by his brother—and in part because the evidence of his innocence is overwhelming. Since being convicted, the lone witness who identified him as a perpetrator has recanted her identification of Webster multiple times. Further, four separate witnesses—including the brothers’ mother and the real perpetrator’s ex-girlfriend—have come forward to say that Webster’s brother not only confessed to committing the murder, but also bragged about doing so. DNA testing has additionally excluded Webster as a potential contributor to the DNA found on the murder weapon. Further, new eye witnesses have come forward to provide evidence that exculpates Webster and a description of the killer that does not match Webster at all. Separately, a treasure trove of new evidence points to two other individuals—Mr. Webster’s brother and his longtime right hand—as having being the real perpetrators who committed the crime, which still remains an unsolved cold case as to the second individual involved.

Webster’s original conviction review application is available here. Selected local media coverage from the case appears below.

-WPLN: Nashville District Attorney Agrees To Review Conviction In 1998 Murder Case

-Fox 17: FERRIER FILES: Is Nashville man serving a life sentence innocent?

-Fox 17: FERRIER FILES: Nashville murder conviction investigation to be reopened

-Fox 17: FERRIER FILES: Imprisoned man’s DNA not on murder weapon

-The Tennessean: District attorney redesigns ‘burdensome’ process of searching for wrongful convictions

-News Channel 5: Nashville murder conviction being reopened

-WPLN: Investigation: After Pledging To Examine Innocence Claims, Nashville DA Has Yet To Open A Case

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Tennesseans For Sensible Election Laws Issues Litigation Threat Over Davidson County Election Officials Viewing Marked Ballots

Following a push to promote confidence in the election system, Nashville voters are using new voting machines to cast their votes in the August 1, 2019 Metro election. The purpose of the change was to enhance election integrity by giving voters a paper printout of their ballot choices that can be used to verify selections made on an electronic voting machine and to conduct a hand recount, if necessary. The rollout, however, has not gone as planned.

Earlier today, decorated News Channel 5 investigative reporter Phil Williams announced on Twitter that during the process of scanning his marked ballot, a poll worker had stared at it and was able to determine how he had voted, and that his wife had experienced the same issue:

My wife and I both had the same horrified reaction yesterday when we voted early in the Nashville election. The new system prints out your votes, then an election worker helps feed them into the scanner. In both cases, she was actually staring down at how we voted. Stop it NOW!— Phil Williams (@NC5PhilWilliams) July 21, 2019

You feed it into the scanner face-up, and there was an election worker standing right by the machine. In both our cases, she looked right down at the ballot as it was being fed into the machine.— Phil Williams (@NC5PhilWilliams) July 21, 2019

Thereafter, multiple other voters chimed in to report having the same experience. The issue—which appears to be due in large part to untrained or poorly trained poll workers who missed instructions that marked ballots are not to be touched and should be scanned by voters facedown—seriously compromises the secret ballot, prompting election advocacy group Tennesseans for Sensible Election Laws to issue a litigation threat to the Davidson County Election Commission:

The letter, in full, reads as follows:

TSEL STATEMENT ON NASHVILLE POLL WORKERS VIEWING VOTERS’ MARKED BALLOTS

Following reports from News Channel 5’s Phil Williams and other voters that poll workers in Davidson County, Tennessee have been viewing voters’ marked ballots while voters were feeding them into scanners, Daniel A. Horwitz, General Counsel for Tennesseans for Sensible Election Laws,issued the following statement:

Tennesseans for Sensible Election Laws is deeply concerned about reports that Davidson County poll workers have been viewing individual voters’ marked ballots as they were being fed into scanners.  It should not even be possible for such a scenario to occur, much less actually occur in practice.

The secret ballot is critical to maintaining the integrity of Tennessee’s election process.  Ballot secrecy prevents illicit tactics like vote-buying and ensures that voters will be comfortable voting for whomever they please without fear of retaliation or intimidation.  Simply put: The secret ballot is essential in order to maintain both confidence in and the security of Tennessee’s entire election process.

To protect the secret ballot, Tenn. Code Ann. § 2-9-101(a) provides that: “A voting machine to be used in Tennessee . . . must ensure voting in absolute secrecy.”  Further, under Tenn. Code Ann. § 2-3-108(b)(1), paper ballots must be administered and arranged in such a way “that it is impossible for any person to see a voter’s ballot while it is being marked.” 

Reports by Phil Williams and others that their marked ballots were viewed by poll workers while their votes were being counted make clear that Davidson County’s new voting process does not comply with applicable ballot secrecy mandates.  As a consequence, Tennesseans for Sensible Election Laws demands that the Davidson County Election Commission take immediate action to ensure that all marked ballots are fed into scanners facing down and that poll workers are unable to view them under any circumstances.  Any election official who attempts to view a voter’s marked ballot must be terminated.  If the Davidson County Election Commission does not take immediate action to maintain legally-mandated ballot secrecy, we will take legal action yet again to protect Tennessee’s democratic process.”

Tennesseans for Sensible Election Laws is a nonpartisan group of concerned citizens who care about protecting Tennessee’s democratic process. Its mission is to ensure that Tennessee’s election and campaign finance statutes, policies, and regulations protect all Tennesseans’ rights to participate in the political process without unreasonable interference from the state government.  Learn more at tn4sense.org.

Paid for by Tennesseans for Sensible Election Laws.  David M. Morelli, Jr., Treasurer.  Not authorized by any candidate or candidate’s committee, but we don’t think it should be a crime not to tell you that.

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The “Tennessee Public Participation Act”⁠—Tennessee’s First-Ever Meaningful Anti-SLAPP Law⁠—Takes Effect Today

By Tennessee First Amendment, Speech Defense, and Anti-SLAPP Lawyer Daniel Horwitz:

If you woke up this morning feeling freer to speak your mind, there’s a reason: A little-noticed law with huge free speech benefits takes effect today. As of July 1, 2019, the “Tennessee Public Participation Act”—Tennessee’s first-ever meaningful Anti-SLAPP law—became effective and affords those who are sued for their speech a host of critical legal benefits.

Because litigation is often prohibitively expensive, bad actors can often intimidate critics into silence by threatening or filing baseless speech-based lawsuits asserting claims like defamation (libel or slander), false light invasion of privacy, business disparagement, or other questionable torts. When faced with the prospect of having to spend tens (if not hundreds) of thousands of dollars in legal fees to defend one’s legal right, for instance, to leave an unfavorable review of a business, self-censorship can also become an extremely attractive proposition. The result of such self-censorship is to undermine both individuals’ right to free speech and the public’s right to hear and receive information.

It is important to note that the overwhelming majority of defamation and other speech-based lawsuits are not filed because a person has suffered an actual legal injury. Instead, their purpose is to punish people for lawfully exercising their right to speak freely about a topic that the suing plaintiff wants to censor. Given the cost of litigation, historically, such lawsuits have also been disturbingly effective.

To provide a counterbalance to the financial threat posed by bogus defamation lawsuits, laws aimed at deterring “Strategic Lawsuits Against Public Participation” (Anti-SLAPP laws) afford speakers a number of significant legal protections, all of which are critical to safeguarding free speech and promoting the free exchange of information and ideas. First, Anti-SLAPP laws help deter bad actors from filing baseless lawsuits against people for lawfully exercising their free speech rights in the first place. Second, the best Anti-SLAPP laws provide people who are sued for exercising their First Amendment rights an efficient and expeditious means of getting frivolous speech-based lawsuits dismissed quickly. Third, Anti-SLAPP laws commonly provide a mechanism to punish abusive litigants and attorneys who file baseless defamation claims with significant monetary sanctions. Fourth, Anti-SLAPP laws frequently give people who are sued for exercising their free speech rights the right to recoup whatever attorney’s fees and court costs they incurred for having to defend against a meritless speech-based lawsuit.

Happily, beginning today, Tennessee now boasts an Anti-SLAPP law that affords speakers all of these benefits. Until today, Tennessee only had a limited Anti-SLAPP law that was narrowly restricted to statements made to government agencies.  Fortunately, though, earlier this year, Tennessee enacted the “Tennessee Public Participation Act” to protect Tennesseans’ right to free speech, which became effective July 1, 2019.  Thus, from today onward, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world can now wield a powerful protective weapon against bad actors’ efforts to censor and intimidate them through frivolous speech-based lawsuits.

The Tennessee Public Participation Act has dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. Under the Act, every “communication made in connection with a matter of public concern”—a term that is defined broadly and expressly encompasses statements involving issues of “health or safety” and “community well-being”—”that falls within the protection of the United States Constitution or the Tennessee Constitution” will come within the ambit of the law’s protection. In other words: Most statements made by citizens within the State of Tennessee—including social media posts and blog posts—now receive heightened protection against speech-based lawsuits, including defamation lawsuits, false light invasion of privacy lawsuits, or lawsuits that assert claims such as “defamation by implication or innuendo.”  Defendants who are sued for claims such as “abuse of process” or “malicious prosecution” will frequently enjoy heightened protection under the Tennessee Public Participation Act as well.

Censorship has always been rampant, and it comes in many forms—from firing people who speak out about misconduct in the workplace to libel and slander lawsuits. More than anything, in recent years, the permanence of the internet combined with the reach and speed of social media have made it more attractive than ever to try to censor others through the legal system before harmful information—whether accurate or not—reaches every corner of cyberspace. The good news is that the Tennessee Public Participation Act will now afford significant protection to people who speak out about topics like abuse and other important issues. The text of the law appears below.

The Tennessee Public Participation Act (Effective July 1, 2019):

20-17-101. This chapter shall be known and may be cited as the “Tennessee
Public Participation Act.”

20-17-102. The purpose of this chapter is to encourage and safeguard the
constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury. This chapter is consistent with and necessary to implement the rights protected by Article I, §§ 19 and 23, of the Constitution of Tennessee, as well as by the First Amendment to the United States Constitution, and shall be construed broadly to effectuate its purposes and intent.

20-17-103. As used in this chapter:

(1) “Communication” means the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic;

(2) “Exercise of the right of association” means exercise of the constitutional right to join together to take collective action on a matter of public concern that falls within the protection of the United States Constitution or the Tennessee Constitution;

(3) “Exercise of the right of free speech” means a communication made
in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution;

(4) “Exercise of the right to petition” means a communication that falls
within the protection of the United States Constitution or the Tennessee Constitution and:

(A) Is intended to encourage consideration or review of an issue
by a federal, state, or local legislative, executive, judicial, or other
governmental body; or

(B) Is intended to enlist public participation in an effort to effect
consideration of an issue by a federal, state, or local legislative,
executive, judicial, or other governmental body;

(5) “Legal action” means a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable relief initiated against a private party;

(6) “Matter of public concern” includes an issue related to:

(A) Health or safety;

(B) Environmental, economic, or community well-being;

(C) The government;

(D) A public official or public figure;

(E) A good, product, or service in the marketplace;

(F) A literary, musical, artistic, political, theatrical, or audiovisual
work; or

(G) Any other matter deemed by a court to involve a matter of
public concern; and

(7) “Party” does not include a governmental entity, agency, or employee.

20-17-104.

(a) If a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action.

(b) Such a petition may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court’s discretion, at any later time that the court deems proper.

(c) A response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.

(d) All discovery in the legal action is stayed upon the filing of a petition under this section. The stay of discovery remains in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.

20-17-105.

(a) 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.

(b) 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.

(c) Notwithstanding subsection (b), the court shall dismiss the legal
action if the petitioning party establishes a valid defense to the claims in the legal action.

(d) The court may base its decision on supporting and opposing sworn
affidavits stating admissible evidence upon which the liability or defense is based and on other admissible evidence presented by the parties.

(e) If the court dismisses a legal action pursuant to a petition filed under this chapter, the legal action or the challenged claim is dismissed with prejudice.

(f) If the court determines the responding party established a likelihood of prevailing on a claim:

(1) The fact that the court made that determination and the
substance of the determination may not be admitted into evidence later in
the case; and

(2) The determination does not affect the burden or standard of
proof in the proceeding.

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.

20-17-107.

(a) If the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party:

(1) Court costs, reasonable attorney’s fees, discretionary costs,
and other expenses incurred in filing and prevailing upon the petition; and

(2) Any additional relief, including sanctions, that the court
determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.

(b) 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.

20-17-108.  Nothing in this chapter:

(1) Applies to an enforcement action that is brought in the name of the
state or a political subdivision of this state by the attorney general, a district attorney general, or a county or municipal attorney;
(2) Can result in findings or determinations that are admissible in
evidence at any later stage of the underlying legal action or in any subsequent legal action;
(3) Affects or limits the authority of a court to award sanctions, costs,
attorney’s fees, or any other relief available under any other statute, court rule, or other authority;
(4) Affects, limits, or precludes the right of any party to assert any
defense, remedy, immunity, or privilege otherwise authorized by law;
(5) Affects the substantive law governing any asserted claim;
(6) Creates a private right of action; or
(7) Creates any cause of action for any government entity, agency, or
employee.

20-17-109. This chapter is intended to provide an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available to those parties under common law, statutory law, or constitutional law or under the Tennessee Rules of Civil Procedure.

20-17-110. If any provision of this chapter or the application thereof to any
person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.

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The Tennessee Justice System Has a Bigoted Personnel Problem. Unfortunately, the Bureaucrats Responsible for Overseeing It Don’t Care.

By Daniel Horwitz:

It seems that almost every week now, government officials involved in Tennessee’s justice system make headlines for their overt, unapologetic bigotry. In May of this year, for instance, Shelby County Criminal Court Judge Jim Lammey gained national attention after posting an article that referred to Muslim immigrants as “foreign mud” and said that Jews should “get the f**k over the Holocaust.” Weeks later, Coffee County District Attorney Craig Northcutt provoked an initial wave of outrage after posting (among other disqualifying nonsense) that Muslims’ “belief system is evil, violent and against God’s Truth,” only to outdo himself shortly thereafter when a video surfaced of him proclaiming that gay couples don’t enjoy constitutional rights and would not be protected by domestic violence statutes within his jurisdiction. And today, the Knoxville News Sentinel reports that Knox County Sheriff’s Detective Grayson Fritts recently declared that “federal, state and county governments should arrest, try, convict and ‘speedily’ execute people within the LGBTQ community” for participating in Pride parades.

These outrages are not isolated. They also are not surprising, given the shockingly indifferent way that such disqualifying conduct is treated by the bureaucrats who oversee Tennessee’s justice system. And they will continue to occur over and over and over again until administrators like BPR Chief Disciplinary Counsel Sandy Garrett are replaced with competent, capable people who consider bigotry and misconduct by public officials at least as problematic as private attorneys loaning poor clients money so that they can pay their rent.

This is not an exaggeration. Tennessee’s Board of Professional Responsibility—the shadowy, quasi-governmental body that regulates lawyers in Tennessee—has routinely turned a blind eye to racism and approached the absolute worst forms of misconduct with kid gloves under circumstances when the violators were participants in Tennessee’s justice system. In 2014, for instance, a Shelby County District Attorney who was caught (and admitted) withholding exonerating evidence in a capital murder case received nothing more than a public censure. In other circumstances, misconduct in the form of racist comments made by District Attorneys during prosecutions were ignored by the body entirely. And indeed, during an insane attempted power grab last year that would have afforded the BPR wide-ranging authority to censor and prosecute a vast amount of constitutionally protected, private attorney speech, at Ms. Garrett’s urging, the BPR itself sought to carve out a special disciplinary exemption for prosecutors who exercised racist peremptory challenges during jury selection.

By contrast, trivial violations that most reasonable people would not consider misconduct at all are met with fire and fury. For instance, in only the latest indication that Tennessee’s BPR has lost both its purpose and its mind, the Board came down hard on one lawyer for what is apparently considered an egregious offense in this State: Helping a poor client pay her rent.  Ultimately, the punishment he received was identical to the sanction that the BPR levied against the above-mentioned Memphis prosecutor who hid exonerating evidence in a capital murder case—a fact that says just about everything that needs to be said about the BPR, its judgment, and its priorities.

Most troublingly, though, Garrett’s BPR has helped prevent serious misconduct by public officials from coming to light by aggressively prosecuting attorneys across the state for having the audacity to speak up or speak out against judges. Indeed, notwithstanding the absence of any conceivable harm to the public, there appears to be no surer way to guarantee severe professional sanction in Tennessee—including summary, indefinite suspension—than to stand up to a judge. Given this context, it is fair to wonder whether the culture of silence and censorship that Garrett’s BPR fosters—whether deliberately or otherwise—serves to inhibit whistleblowing and allows misconduct by public officials to fester unchecked for years. Indeed, one wonders whether that’s the point.

Year after year, bar associations and self-important bar leaders across Tennessee wonder aloud why the legal profession is consistently held in such low esteem by the general public. Curiously, the existence of bigoted judges and prosecutors, a structurally inadequate indigent defense system, and highly questionable behavior by professional regulators—both with respect to the way they treat practicing attorneys and prospective lawyers—never seem to come up as possible explanations.  Certainly, the solutions sought by the BPR don’t address any of the many legitimate reasons why the public would hold the entire legal system in low regard.  Instead, to the exclusion of any justifiable priority, the approach of Tennessee’s BPR has largely been to censor and prosecute lawyers who criticize governmental participants in a legal system that is failing daily.

Though few dare to challenge the BPR’s behavior and priorities given credible fear of retaliation, it is past time that the BPR secured new leadership.  As Garrett’s BPR demonstrates year after year, the body quite simply lacks the judgment to oversee or regulate the practice of law in Tennessee.  Having failed to do her job competently for long enough, the Tennessee Supreme Court should replace her.  Alternatively, for the good of the profession, Garrett should do the honorable thing and resign.

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