All posts by DanielAHorwitz

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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White County, Tennessee Inmate Sterilization Program Terminated By Historic Order

Federal court orders that controversial sterilization program be rescinded; White County officials to pay Plaintiffs’ attorney’s fees, permanently enjoined from making or enforcing any sentencing determination that is based “in whole or in part upon a defendant’s consent—or refusal to consent—to becoming permanently or temporarily sterilized.”

Following an historic reversal at the United States Court of Appeals for the Sixth Circuit last month, an inmate sterilization program instituted by two White County, Tennessee officials has finally come to an end.  The landmark order comes nearly two years after a trio of inmates at the White County jail filed suit against White County General Sessions Court Judge Sam Benningfield—the architect of the program—and the White County Sheriff’s Office, alleging that the program violated the 14th Amendment’s Equal Protection and Due Process clauses.

A consent decree approved by the United States District Court for the Middle District of Tennessee earlier today formally terminates the controversial inmate sterilization program, compelling Judge Benningfield to rescind each of his standing orders regarding the program “in their entirety,” effective immediately.  The Court’s order also permanently enjoins both Judge Benningfield and the White County Sheriff’s Office “from making or enforcing any sentencing determination that is based in whole or in part upon a defendant’s consent—or refusal to consent—to becoming permanently or temporarily sterilized” at any point in the future.  Judge Benningfield and the White County Sheriff were further ordered to pay the costs of the lawsuit and the plaintiffs’ attorney’s fees, which the order provides “shall be donated by Plaintiffs’ counsel to the United States Holocaust Memorial Museum and the Tuskegee History Center.”  Each of the three inmates who sued after refusing to become sterilized also received a 30-day sentencing credit toward a future expungement.

“Inmate sterilization is despicable, it is morally indefensible, and it is illegal,” said Daniel Horwitz, a Nashville-based constitutional lawyer who represented the inmates along with Richard Brooks. “Let this historic order serve as a warning: Whether you are a sitting Judge, a Sheriff who is ‘just following orders,’ or any other government official, if you violate the Constitution, you will be held accountable.”

The Consent Decree and Final Order approved by the U.S. District Court for the Middle District of Tennessee and additional case documents regarding the program appear below.

Consent Decree and Final Order

6th Circuit Opinion Reversing District Court

Plaintiffs’ Complaint for Injunctive and Declaratory Relief

Plaintiffs’ Memorandum in Support of Summary Judgment

6th Circuit Brief of Plaintiffs-Appellants

Selected Media Coverage:

-The Tennessean: Federal court order officially ends Tennessee ‘inmate sterilization’ program

-Vice: A Tennessee County Wanted to Sterilize Inmates for Shorter Sentences. That’s Over Now.

-Fox 17: Tennessee inmates win suit against judge who offered sentencing credits for sterilization

-IFL: Federal Court Ends Tennessee’s Controversial Inmate Sterilization Program

-News Channel 5: White County Inmate Sterilization Program terminated by federal ruling

-The Tennessean: Court revives lawsuit against judge who shortened jail time if inmates got ‘sterilized’

-The Washington Post: Tennessee judge reprimanded for offering reduced jail time in exchange for sterilization

-The Tennessean: 2nd lawsuit challenges Tennessee county’s inmate birth control practice

-WSMV Channel 4: Judge under scrutiny for offering reduced sentences for vasectomies, birth control implants

-BBC News: ‘We were guinea pigs’: Jailed inmates agreed to birth control

-ScotBlog: Lawsuit Seeks to End White County’s Ongoing Sterilization Program

February 2019 Tennessee Bar Results: Vanderbilt, Belmont Maintain Top Spots, Nashville School of Law Last Again

By Daniel A. Horwitz:

The Tennessee Board of Law Examiners has released the results of the February 2019 Tennessee bar exam. The exam—which was taken by 289 prospective lawyers—resulted in an overall passage rate of 46.37%. Special shout out to successful exam-taker Kenny Dyer, whose herculean work as the author’s private investigator on the since re-opened Joseph Webster innocence case cannot be overstated.

Individual school statistics were as follows:

Vanderbilt Law School maintained its multi-year grip on the state’s top spot with an overall passage rate of 83.33% (in a recent previous year, Belmont Law School had claimed the mantle). Tennessee’s other accredited law schools registered overall passage rates of 71.43% (Belmont), 51.43% (Memphis), 47.06% (Duncan), and 43.48% (UT).

Bringing up the rear again, Nashville School of Law—which probably could have benefited from competition from a public law school in Middle Tennessee but was recently protected from it—mustered an overall passage rate of just 30.00%. For context, in 2014, Nashville School of Law secured new leadership and pledged to improve its state-worst passage rate of what was then 65-70%.  Since that time, the school has posted overall passage rates of 50% (February 2015), 28% (July 2015), 30% (February 2016), 28% (July 2016), 35% (February 2017), 38% (July 2017), 13% (February 2018), and 42% (July 2018). Whether BLE Member/former Tennessee Supreme Court Justice William Barker’s definitely genuine concern that “I just hate for people to come spend all the time and money and years of their lives with no possibility of passing” will ever result in him taking action against a non-immigrant remains to be seen.

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Individual Rights Are Expanding In Tennessee

By Daniel A. Horwitz

The past week has been an excellent one for individual rights in Tennessee, with improvements coming in several independent areas:

First, the Tennessee General Assembly has passed the State’s first meaningful anti-SLAPP law to protect Tennesseans’ right to free speech. The reform will instantly have the effect of deterring people from filing baseless lawsuits aimed at censoring critical commentary and severely punishing people who do. Thus, effective July 1, 2019, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world will be able to wield a powerful protective weapon against foolish bad actors’ efforts to censor and intimidate them through frivolous, failed lawsuits.

Second, following a 2017 lawsuit to terminate a White County, Tennessee inmate sterilization program, the United States Court of Appeals for the Sixth Circuit has ruled that sterilization-for-sentencing-credits arrangements like White County’s are illegal. “Requiring inmates to waive a fundamental right to obtain a government benefit impermissibly burdens that right” in contravention of the Fourteenth Amendment, the Court’s opinion reads. “This decision sends a clear, important message that should never have been necessary in the first place: Inmate sterilization is illegal and unconstitutional,” the inmates’ attorney, Daniel Horwitz (the author), said in a statement to The Tennessean on the ruling.

Third, the Tennessee General Assembly passed one of Governor Bill Lee’s central legislative priorities—a substantial reduction in the current expungement fee that the state assesses people for the privilege of expunging convictions and diverted offenses on their criminal records. Tennessee’s expungement law, which enables people to expunge up to two qualifying convictions, provides an extraordinarily important mechanism for people to move on from an interaction with the criminal justice system and eliminate their criminal record history such that—as a matter of law—it “never occurred.” Although the reform does not wholly eliminate all applicable expungement fees, it reduces the total fee that people will have to pay to expunge a conviction or diversion from $280 to $100 going forward.

These important reforms each move individual rights in the right direction. They reduce private litigants’ ability to abuse the legal process, they curtail the government’s power to infringe upon people’s constitutional rights, and they help ensure that people will not suffer a life sentence for minor criminal convictions solely because they lack the ability to pay a few hundred dollars to expunge their qualifying convictions. Hopefully, progress like this is only a beginning.

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Tennessee Supreme Court Strengthens Protections for Journalists’ Fair Report Privilege; Rules on Source Protection Law

By Daniel A. Horwitz

In a unanimous, twenty-page opinion released earlier this afternoon, the Tennessee Supreme Court ruled on a pair of critical issues affecting newsgathering in Tennessee.  The Court’s ruling strengthens protections for the “fair report” privilege—a legal defense that protects journalists from liability for allegedly defamatory news articles—while at least arguably undercutting Tennessee’s “Shield Law,” which enables journalists to protect their sources.  The Court’s opinion, authored by Justice Cornelia Clark, is accessible here.

The first and central holding of the Court’s opinion is that no claim of “malice”—either an express motive to harm another or simply reckless reporting—can overcome the fair report privilege afforded to news media.  “We hold that neither express malice nor actual malice can defeat the fair report privilege,” the Court’s opinion reads.  “The privilege can only be defeated by showing that a report about an official action or proceeding was unfair or inaccurate.”  Because the overwhelming majority of defamation lawsuits are baseless, the Court’s opinion significantly strengthens protections for journalists that could otherwise be eviscerated through creative or fanciful pleading.

On the other hand, however, the Court held that a journalist’s invocation of the fair report privilege necessarily “triggers the exception to the shield law in Tennessee Code Annotated section 24-1-208(b),” which generally protects journalists against having to disclose the sources of their information.  The Court’s opinion explains:

“[A]ssertion of the fair report privilege will necessarily entail disclosure of the media defendant’s source of information. This is because a media defendant asserting the privilege must show that the allegedly defamatory information is a fair and accurate report of official actions or proceedings, and therefore, the media defendant must disclose the source of the allegedly defamatory information.” 

The Court made clear, however, that “the exception to the shield law allows a court to compel disclosure of the source of a media defendant’s information—how media defendants know something; it does not authorize a court to compel media defendants to disclose the information the source provided.”

Read the Tennessee Supreme Court’s unanimous opinion in Glenn R. Funk v. Scripps Media, Inc. here.

This post will be updated.

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The “Justice Game,” and the Tennessee Supreme Court’s Latest Opportunity to Call Foul

By Daniel A. Horwitz

Over at the Litigation & Trial Blog, attorney Max Kennerly has penned an excellent piece on “The Unjust ‘Sporting Theory of Justice’ In Federal Courts.”  The “sporting theory” at issue is a reference to a famous speech entitled “The Causes Of Popular Dissatisfaction With The Administration Of Justice,” which Roscoe Pound—then the Dean of Harvard Law School—delivered at the American Bar Association’s annual convention in 1906.

Pound’s essential premise was that, by the turn of the twentieth century, the American justice system had devolved into little more than a game that focused not on adjudicating controversies on their merits and meting out judgments that substantive justice compelled, but looked instead to whether litigants had successfully navigated procedural rules that had little bearing, if any, upon the actual case at bar.  Pound decried:

“The inquiry is not: What do substantive law and justice require? Instead, the inquiry is: Have the rules of the game been carried out strictly? If any material infraction is discovered, just as the football rules put back the offending team five or ten or fifteen yards, as the case may be, our sporting theory of justice awards new trials, or reverses judgments, or sustains demurrers in the interest of regular play.”

None of this, of course, was to suggest that procedural rules are not important.  Indeed, to the contrary, all agree that procedural rules—such as fair notice and a meaningful opportunity to be heard—are essential to protect substantive rights. 

Frequently, however, procedural rules are distantly removed from substantive protections.  Under such circumstances—particularly when a rule is unclear or an opposing litigant has not been harmed—the notion that someone should lose their day in court due to technical non-compliance is corrosive to the justice system’s fundamental purpose: To adjudicate the merits of controversies and dispense justice based on litigants’ substantive rights.

Frustratingly, despite many essential improvements over the past century that aimed to reform the justice game, many judges’ disinterest in providing substantive justice doggedly persists.  Kennerly’s article provides some recent examples in federal court, but Tennessee is a similar offender.  Tennessee’s intermediate appellate courts, in particular, have long jumped to dismiss substantive claims based on procedural technicalities that have little or no relation to litigants’ substantive rights—something that the Tennessee Supreme Court has repeatedly intervened to chastise over, and over, and over again.

Consider, for instance, the Court of Appeals’ 2014 opinion in Arden v. Kozawa—a wrongful death case that the Court of Appeals dismissed because the plaintiff had delivered notice to an opposing party using FedEx instead of USPS (the Tennessee Supreme Court sensibly reversed).  Or this case from a few weeks ago, where the Court of Appeals declined to consider a litigant’s argument on appeal because—although the issue was raised in the litigant’s briefing—“an issue may be deemed waived when it is argued in the brief but is not designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).”  Alternatively, consider the host of hyper-technical dismissals in Health Care Liability Act cases for which this author has blasted the Court of Appeals for “undermin[ing] the fundamental purpose of the civil justice system as an institution.”  None of these opinions is even remotely concerned with whether the substance of a litigant’s claim has merit.  Instead, the judgments turn on whether the litigants involved adhered to substantively vacuous “rules of the game.”

The Tennessee Court of Criminal Appeals, for its part, is just as guilty.  Almost daily, defendants are treated to dismissive rulings based not on the merits of their claims, but based on (often unevenly applied) procedural flaws—waiver and abandonment, failure to preserve issues or exhaust remedies, failure to assert their claims quickly enough, and the like.

Perhaps no case better illustrates the Court of Criminal Appeals’ commitment to the justice game than this August 2018 case.  There, a defendant sought to terminate his supposedly outstanding, decades-old court costs.  He specifically invoked Tennessee’s ten-year statute of limitations for collecting on judgments as a defense to a District Attorney’s sudden and plainly retaliatory efforts to collect costs as many as twenty-six years after the fact.  Unfortunately, the trial court dismissed the defendant’s claim on procedural grounds that both parties essentially agreed were wrong—finding that although the defendant had been served with multiple writs to execute on the judgments at issue, “no pending civil action existed” to collect on them.  Thereafter, the defendant appealed.

In a series of previous cases—every single one of them involving a pro se litigant—the Court of Criminal Appeals had deprived similar litigants of their day in court and held that a denial of a motion to terminate court costs cannot be appealed under Tenn. R. App. P. 3(b), which governs criminal appeals.[1]  Accordingly, the defendant made clear over and over again in his briefing that he was filing his appeal under Tenn. R. App. P. 3(a)—which governs civil appeals and guarantees litigants an appeal “as of right”—instead.  The defendant’s argument also made particularly good sense in the context of his case, given that Tennessee law provides that taxes, costs, and fines that arise out of criminal cases are collectable “in the same manner as a judgment in a civil action.”[2]  As an alternative to considering the merits of his appeal under Tenn. R. App. P. 3(a), though, pursuant to longstanding precedent that provides that the relief sought by a pleading—rather than the title assigned to it—controls its treatment, the defendant asked the Court of Criminal Appeals to convert his appeal into a catch-all writ of certiorari instead if Tenn. R. App. P. 3(a) did not afford him a right to appeal after all.[3]

In a cursory, four-page opinion, the Court of Criminal Appeals dismissed the defendant’s appeal on the basis that Tenn. R. App. P. 3(b)—Tennessee’s criminal appeal provision—did not allow it.  (Tenn. R. App. P. 3(a) was never mentioned.)  The Court also declined the defendant’s request to adjudicate the merits of his appeal as a writ of certiorari—even though the same court routinely extends the government that benefit under similar circumstances.  

Given that—as noted above—the defendant had repeatedly indicated that he was appealing under Tenn. R. App. P. 3(a), not Tenn. R. App. P. 3(b), one reading of the Court of Criminal Appeals’ opinion might be that the Court misread the defendant’s claims.  Alternatively, a less charitable conclusion might be that—in its haste to dismiss yet another defendant’s appeal on purely technical procedural grounds—the Court of Criminal Appeals didn’t read them at all.

Laudably, the Tennessee Supreme Court has frequently served as a bulwark against hyper-technical procedural dismissals of this sort.  Consequently, time and again, it has intervened to reverse and remind Tennessee’s intermediate appellate courts that courts must not “exalt[] form over substance to deprive a party of his day in court and frustrat[e] the resolution of the litigation on the merits.”[4]

Encouragingly, Kendall Southall’s appeal to the Tennessee Supreme Court, in which he asks the Court to order the Court of Criminal Appeals to adjudicate the merits of his claims, still remains under review.  For the sake of substantive justice—rather than just the sport of “the justice game”—everyone should hope that the Tennessee Supreme Court intervenes and affirms, yet again, the judiciary’s obligation not to “exalt form over substance”—something that our Supreme Court has repeatedly held that it “refuses to do.”[5]

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[1] See State v. Johnson, 56 S.W. 3d 44, 44 (Tenn. Crim. App. 2001) (“Christopher Joseph Johnson, pro se.”); State v. Hegel, No. E2015-00953-CCA-R3-CO, 2016 WL 3078657 (Tenn. Crim. App. May 23, 2016) (“James Frederick Hegel, pro se”); Boruff v. State, No. E2010-00772-CCA-R3CO, 2011 WL 846063 (Tenn. Crim. App. Mar. 10, 2011) (“Douglas Boruff, pro se”); Hood v. State, No. M2009-00661-CCA-R3-PC, 2010 WL 3244877 (Tenn. Crim. App. Aug. 18, 2010) (“Jonathon C. Hood, Clifton, Tennessee, pro se”); Lewis v. State, No. E2014-01376-CCA-WR-CO, 2015 WL 1611296 (Tenn. Crim. App. Apr. 7, 2015) (“Stephen W. Lewis, Wartburg, Tennessee, Pro Se”).  

[2] Tenn. Code Ann. § 40-24-105(a).

[3] See, e.g., Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995) (“the trial court should have treated the petition as one for a writ of certiorari.  It is well settled that a trial court is not bound by the title of the pleading, but has the discretion to treat the pleading according to the relief sought.”); Estate of Doyle v. Hunt, 60 S.W.3d 838, 842 (Tenn. Ct. App. 2001) (“A trial court is not bound by the title of a pleading, but rather the court is to give effect to the pleading’s substance and treat it according to the relief sought therein.”); Hill v. Hill, No. M2006-01792-COA-R3CV, 2008 WL 110101, at *3 (Tenn. Ct. App. Jan. 9, 2008) (same).

[4] Jones v. Prof’l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 573 (Tenn. 2006).  See also In re Akins, 87 S.W.3d 488, 495 (Tenn. 2002) (“we . . . avoid exalting form over substance.”); Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991) (“it is the general rule that courts are reluctant to give effect to rules of procedure which seem harsh and unfair, and which prevent a litigant from having a claim adjudicated upon its merits”); City of Chattanooga v. Davis, 54 S.W.3d 248, 260 (Tenn. 2001) (overruling a prior decision that “exalted technical form over constitutional substance in a manner rarely seen elsewhere.”); State v. Henning, 975 S.W.2d 290, 298 (Tenn. 1998) (“To hold otherwise would exalt form over substance.”); Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996) (“it is well settled that Tennessee law strongly favors the resolution of all disputes on their merits”); Norton, 895 S.W.2d at 322 (Tenn. 1995) (emphasizing “the clear policy of this state favoring the adjudication of disputes on their merits”).

[5] King v. Pope, 91 S.W.3d 314, 325 (Tenn. 2002).

Tennessee Supreme Court Clarifies Sentencing Provision in Cyntoia Brown Case; Media and Public Badly Misunderstand the Court’s Opinion

By Daniel A. Horwitz

In an opinion released on Thursday, the Tennessee Supreme Court answered a certified question of law from the United States Court of Appeals for the Sixth Circuit in the high-profile case of Cyntoia Brown, the juvenile sex trafficking victim who received a life sentence after being convicted of murdering a John. The Court’s opinion concluded—unanimously and correctly by any reasonable determination—that Ms. Brown will become eligible for parole after serving 51 years in prison.

It should be noted that the Tennessee Supreme Court’s ruling that Ms. Brown is parole eligible after 51 years was the more lenient outcome available in her case—albeit not the one that Ms. Brown’s attorneys had sought for reasons unique to her circumstances. Nonetheless, a flood of national attention to Ms. Brown’s case and a significant misunderstanding of its posture led multiple commentators—Ana Navarro, for instance—to decry the Court’s ruling as “a travesty of justice,” which it most certainly was not:

Cynthia Brown was a 16 girl when she killed a 43 year-old man forcing her to have sex.
The Tennessee Supreme Court ordered she must serve 51 years.
THIS IS A TRAVESTY OF JUSTICE.
Folks, you need to flood Gov. @BillHaslam’s twitter feed and demand he do something about this. https://t.co/EUKdwQnS6J— Ana Navarro (@ananavarro) December 8, 2018

To put the fairness of her punishment in its proper context: Cyntoia Brown’s sentence is grossly unfair, and Tennessee Governor Bill Haslam should grant her clemency immediately. (People like Calvin Bryant and Randy Mills deserve clemency, too.) Indeed, Governor Haslam should have granted her clemency months ago when she first applied. Ms. Brown—a bright, capable young woman who was very much a victim herself and whose rehabilitation is no longer even questioned—has been punished enough, and her sentence should be commuted immediately to bring it into compliance with modern standards of decency.

As for her pending legal challenge, though: Ms. Brown’s case is far from unique. In fact, from a purely legal perspective, her sentence is considerably less severe than fourteen others in Tennessee. There is a material difference between a juvenile life without the possibility of parole sentence—which fourteen Tennessee defendants are serving right now—and a juvenile life with the possibility of parole sentence, which is what Ms. Brown received. (One of those defendants—who is serving three consecutive life without the possibility of parole sentences for felony-murder charges committed when he was 14—is the author’s client.)  Specifically: A life with the possibility of parole sentence includes the possibility of parole, while a life without the possibility of parole sentence does not. The issue in Ms. Brown’s case—which the Tennessee Supreme Court has now resolved—was whether her sentence included the possibility of parole.

Ms. Brown’s trial court ruled that she would be eligible for parole after 51 years. There also has never been any doubt that this was the actual sentence that Ms. Brown received. In its sentencing order, her trial court specifically stated that Ms. Brown “must serve at least fifty-one (51) calendar years before she is eligible for release.” The Tennessee Department of Correction similarly notes that Ms. Brown is parole eligible:

Nonetheless, Ms. Brown’s federal habeas claim sought to convince the U.S. Court of Appeals for the Sixth Circuit to hold that she was not eligible for parole at all. The claim—to put it mildly—was never likely to succeed. Nonetheless, in June, the Sixth Circuit gave the Tennessee Supreme Court the opportunity to clarify the perceived ambiguity in Tennessee’s sentencing scheme and determine whether or not Ms. Brown was parole eligible.

In its opinion on Thursday, the Tennessee Supreme Court concluded that Ms. Brown was indeed parole eligible. According to the Court, this result was dictated by Tennessee’s sentencing statutes, which the Tennessee Supreme Court determined were not in conflict. Even if Tennessee’s sentencing statutes were ambiguous, however, the “rule of lenity” would have required the same outcome. Under that rule, whenever there is an ambiguity in a criminal provision that can reasonably be interpreted in two ways—one that is more favorable to a defendant and one that is less favorable—precedent and fairness compel that the more lenient interpretation be applied.

Contrary to typical circumstances, Ms. Brown argued that she should have been given a sentence that was even harsher than the one she actually received. The reason why she lodged that claim? In a 2012 case—Miller v. Alabama—the U.S. Supreme Court ruled that juvenile life without parole sentences are presumptively unconstitutional. That decision was also held to be retroactive in 2016 following the U.S. Supreme Court’s decision in Montgomery v. Louisiana. As a result, if Ms. Brown had received a life without the possibility of parole sentence, then she would (at least theoretically) be entitled to have her sentence remedied.  In other words: Ms. Brown wanted the Sixth Circuit to hold that her sentence was even harsher than it was so that it would be presumptively unlawful.  To date, however, it is worth noting that none of Tennessee’s fourteen actual juvenile life without parole defendants have had their presumptively unconstitutional sentences corrected in any regard.

Because the Tennessee Supreme Court has now determined—correctly and by necessity—that Ms. Brown is and always has been parole eligible, her entitlement to resentencing under Miller and Montgomery is not straightforward. She can, and will, continue to argue that she received a “de facto” life without parole sentence because few people will survive 51 years in prison. Nonetheless, anyone who decries the Tennessee Supreme Court’s clarification is, in a literal sense, demanding an even harsher outcome in her case: That Ms. Brown is never eligible for parole at all. The notion that the Tennessee Supreme Court’s failure to embrace that outcome is a “travesty of justice” is farcical, and outrage about the Court’s decision should be tempered accordingly.

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MTSU was denied a law school.  Was the Higher Education Commission’s decision legal?

By Daniel A. Horwitz

Earlier this month, the Tennessee Higher Education Commission voted 8-5 to deny Middle Tennessee State University’s proposal to add a law school to its higher education offerings.  Given that Tennessee’s only existing public law schools are located in Memphis and Knoxville, MTSU’s proposal would have added the first and only public law school option to the Middle Tennessee area.  Its addition would also have introduced substantial competition into the low-cost segment of Middle Tennessee’s strictly private law school market, which is currently failing to produce.

Blasting criticism of the proposal, MTSU President Sidney A. McPhee called on the Commission to reject the “cartel-like view” that its role was to inhibit competition.  Opponents of the plan also appeared to make his point for him.  For instance, in urging the Commission to vote down a law school at MTSU, WPLN reports that “[t]he biggest critics of the transfer came from lawyers and law schools in Memphis and Knoxville, where the state’s only other public law schools are located.”  Other critics decried the fact that another school in the city: (1) “would take away from other schools’ ability to compete,” (2) “would saturate an already dense legal labor market,” (3) “would make it even more difficult for law school graduates to find work,” and (4) would “insert more law school graduates into an already crowded job market.”

The extent to which “the biggest” critics’ interests in stifling competition factored into the Higher Education Commission’s decision to vote down MTSU’s proposal is not clear.  What is clear, however, is that if concerns about enhanced competition in the legal industry or the private law school market—something that uniformly benefits consumers by affording them more choices and lower prices—played any role at all, the Higher Education Commission’s decision was not lawful.  Specifically, although Tennessee regulators appear to be unaware of this fact, a vast body of law instructs that raw economic protectionism is an illegitimate governmental interest, and that under both federal and state law, governmental action aimed solely at inhibiting competition is illegal.

In 2002, the United States Court of Appeals for the Sixth Circuit held for the first time that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose” and violates the 14th Amendment to the U.S. Constitution.[1]  As far as state law is concerned, the Tennessee Supreme Court has long held that protectionism is forbidden by the Tennessee Constitution as well.  In the 1956 case Consumers Gasoline Stations v. City of Pulaski, for instance, the Tennessee Supreme Court held that “[a]lthough [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”[2]  A wealth of additional state precedent spanning more than a century also supports this premise.[3]

Nor is the legal prohibition against raw protectionism a dead letter.  Over the past two years, a series of high-profile victories—from the case of bar applicant Maximiliano Gluzman to the case of on-demand beauty and health service provider Project Belle—were specifically defended on that basis, and recent Tennessee statutory law similarly provides that “arbitrarily limiting entry and reducing competition” is not a legitimate public purpose.  In sum:  At least in Tennessee, the prohibition against economic protectionism is real, it is meaningful, and it is enforceable.

With this context in mind, if attempts to stifle competition in the private Middle Tennessee law school market or in the legal industry more broadly played any role in the Commission’s 8-5 decision to reject MTSU’s proposal to add a law school, then MTSU is entitled to a new hearing.  Just as unconstitutional hostility to a litigant’s religious beliefs cannot play a role in an administrative proceeding, nor can unconstitutional hostility to competition factor into the Higher Education Commission’s decisions.  Given the prominent and visible role that raw economic protectionism of private industry appears to have played in the Commission’s decision to vote down a law school at MTSU, however, the school should seriously consider its right to appeal.

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[1] Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).

[2] Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956).

[3] See, e.g., Harbison v. Knoxville Iron Co., 53 S.W. 955, 957 (Tenn. 1899) (“The ‘liberty’ contemplated in [the Tennessee Constitution] means not only the right of freedom from servitude, imprisonment, or physical restraint, but also the right to use one’s faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof.”); Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 806 (Tenn. 2015) (noting Tennessee’s established public policy favoring citizens’ “access to employment and the ability to earn a livelihood.”).

FOP Lawsuit Contesting Legality of Community Oversight Referendum Dismissed; Referendum to Be Held November 6, 2018

By Daniel A. Horwitz

The Davidson County Circuit Court has issued its final order regarding the Fraternal Order of Police’s attempt to prevent voters from weighing in on a community oversight board that would review citizen complaints regarding Metro police officers.  In a final ruling, the Court determined that the FOP had standing to challenge the requisite number of signatures necessary to trigger a referendum election.  It additionally determined, however, that the FOP’s challenge was without basis.

The Court’s final order is available here.

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