“The determination of whether an offense is eligible for expunction is an obligation entrusted to courts, not the TBI[,]” the Tennessee Supreme Court has ruled. Accordingly, “the TBI lacked authority to refuse to comply” with a final and unappealed expungement order that no statute “authorize[d] the TBI to disregard or revise[.]” The Tennessee Supreme Court’s unanimous opinion powerfully vindicates expungement rights under Tennessee law, the right of Tennesseans to sue the government for acting illegally, and citizens’ right to demand that the government comply with court orders.
The case arose out of a years-old expungement order that was entered by agreement of a District Attorney and approved by a judge following a diversionary plea agreement. When such an expungement order is entered, Tennessee law obligates the Tennessee Bureau of Investigation to process it within sixty days of receipt. In lieu of complying with the court’s order, though—and at the urging of Tennessee Deputy Attorney General Scott Sutherland and other misbehaving members of his office—the TBI opted to violate it, believing that the order was wrong. “But no statute grants the TBI authority to independently review and decline to comply with a final expunction order it considers erroneous,” the Tennessee Supreme Court explained. Further, as the Plaintiff noted, “willfully disobeying a final court order at the urging of counsel is ‘lawless behavior that would land any other contemnor in jail and would subject any other attorney to professional discipline.’”
Along the way to reaching this holding, the Tennessee Supreme Court forcefully affirmed Tennesseans’ rights to sue the government for acting illegally. As relevant to the case, in 2018, the Tennessee General Assembly enacted a critical new statute—Tennessee Code Annotated § 1-3-121—that established the right of “any affected person” to sue the government “regarding the legality or constitutionality of a governmental action.” In full, Tenn. Code Ann. § 1-3-121 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.”
Despite the clarity of this statute, the Tennessee Attorney General’s Office spent the next several years arguing in transparent bad faith that the statute was meaningless; that it did not mean what it said; and that it did not permit any lawsuits to be filed against state government at all. But “[t]he General Assembly clearly and unmistakably waived sovereign immunity by enacting Tennessee Code Annotated section 1-3-121,” the Tennessee Supreme Court explained, and “[t]he plain meaning of this text expressly recognizes the existence of causes of action ‘regarding the legality or constitutionality of a governmental action’ that seek declaratory or injunctive relief.” Accordingly, the Tennessee Supreme Court ruled that the Plaintiff’s lawsuit against the TBI and its Director for willfully violating a court order was permissible, and it ordered a lower court to grant the Plaintiff’s claim for injunctive and declaratory relief, which the court had to that point denied.
“We appreciate the Tennessee Supreme Court unanimously vindicating our client’s expungement rights,” said Horwitz Law PLLC attorney Daniel A. Horwitz, who represented the Plaintiff along with co-counsel Lindsay Smith. “However, we are disturbed that the Tennessee Attorney General’s Office had to be reminded by a court yet again that its job is to uphold the law, not to encourage government officials to violate it. Having engaged in lawless behavior that would land any other contemnor in jail and that would subject any other attorney to professional discipline, we hope that Director Rausch and Attorney General Slatery won’t need to be reminded again.”
The TBI and its Director, David Rausch—who asserted the government’s entitlement to violate court orders—were unsuccessfully represented in the case by attorneys Rob Mitchell (BPR 32266), Miranda Jones (BPR 36070), and Mallory Schiller (36191) of the Tennessee Attorney General’s Office. In advance of the Tennessee Supreme Court’s unanimous reversal, they opposed appellate review in the case on the basis that “there is no probability of reversal.” Contact them at @TNattygen.
The Parties’ oral argument in the case can be viewed here. The Plaintiff’s briefing in the case is linked below.
Read the Tennessee Supreme Court’s unanimous opinion in Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279 v. David B. Rausch, Director of the Tennessee Bureau of Investigation, and Tennessee Bureau of Investigation, authored by Justice Sharon G. Lee, here: https://www.tncourts.gov/sites/default/files/recipient.of_.finalexp.3279.opn_.pdf
The Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance “is in contempt of court,” a senior Chancery Court judge has found. The finding arose from the Registry’s willful collection of $64,000.00 in PAC fees in violation of a permanent injunction prohibiting it from doing so. “[T]he Registry shall refund all improperly collected registration fees, obtained through the enforcement of Tenn. Code Ann. §2-10-121 in violation of this Court’s injunction, within 15 days,” the Court’s order reads. It further “ORDERED that additional coercive fines will be considered if defendant fails to refund the registration fees as ordered above[.]”
The contempt proceeding at issue arose from an injunction secured by the election reform advocacy group Tennesseans for Sensible Election Laws in 2018. Based in part on misconduct by the Tennessee Attorney General’s Office, that injunction was thereafter upheld on appeal by the Tennessee Court of Appeals, which additionally concluded that a mid-litigation statutory amendment to the underlying statute did not moot the case. A subsequent order issued in December 2021 opted to keep the injunction in place, finding that the Registry had “failed to allege, or meet, the ‘significant change in the law’ standard for relief from prospective enforcement of a final judgment containing an injunction.”
In advance of the contempt trial, discovery revealed that despite knowing that the court’s permanent injunction remained unmodified, Registry officials had opted to begin enforcing the enjoined statute again at the recommendation of the Tennessee Attorney General’s Office. It additionally revealed that the Registry “expected” a contempt petition to result from its renewed enforcement. In defense of its violation of a permanent injunction, though, the Registry asserted that “sovereign immunity bars” a contempt petition against the government “as a matter of law”—a position that would mean the government may violate court orders without consequence. “[T]his simply cannot be[,]” Senior Judge Wright concluded in an April 6 2022 order, noting that such a result would render the separation of powers doctrine “a nullity” and reduce the judiciary “to a paper tiger with the authority to declare an action of the legislative or executive branch to be unconstitutional but an inability to enforce its judgment.”
Upon review of the Registry’s behavior, Judge Wright concluded that “[t]he injunction at issue was lawful,” that it “is clear and unambiguous,” and that the Registry’s “conscious choice” and “deliberate” decision to enforce the enjoined statute was “willful.” Accordingly, “the Court FINDS that the defendant willfully violated this Court’s injunction by a preponderance of the evidence,” Judge Wright’s order reads.
“While the Tennessee Attorney General’s lawless approach to court orders and constitutional rights continues unabated, so does TSEL’s commitment to vindicating the rights of Tennesseans to participate in elections without illicit governmental interference,” said Daniel A. Horwitz, who represented TSEL with attorneys Jamie Hollin and Lindsay Smith. “Court orders are not voluntary—even for the state officials who wrongly believe themselves to be above the law. We look forward to ensuring the return of $64,000.00 that the Tennessee Attorney General’s Office instructed the Registry to steal.”
The Registry was unsuccessfully represented by attorneys Alex Rieger, Matt Jones, and Janet Kleinfelter, all of the Tennessee Attorney General’s Office. Contact them at @TNattygen.
In 2019, Tennessee’s free speech law underwent a sea change. The Tennessee Public Participation Act—Tennessee’s first-ever meaningful anti-SLAPP law—took effect, ushering in a host of critical protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts.
Heading into its third year of existence, it is clear at this point that the Tennessee Public Participation Act is working. If 2021 is a sign of things to come, Tennessee’s free speech law is also headed in the right direction.
Building on a series of important wins in 2020, the results that the TPPA produced in 2021 cannot be overstated. To list just a few of them:
In June of 2021, the Tennessee Court of Appeals affirmed an anti-SLAPP judgment—the first ever anti-SLAPP judgment issued in Tennessee—in favor of a Wilson County woman who posted a negative Yelp! review. The end result was that the thin-skinned doctor who baselessly sued her was ordered to pay a cumulative $75,000.00 cost, fee, and sanctions award for his SLAPP-suit across a pair of cases filed in Wilson County Circuit and General Sessions Court.
In March of 2021—and then again in July 2021—Circuit Courts in separate counties affirmed the constitutionality of the Tennessee Public Participation Act over a Plaintiff’s constitutional challenge.
When Tennesseans head out to trick-or-treat this Halloween, they can expect to see all sorts of spooky things. But while most Halloween frights are imaginary, there is one terror that should make all Tennesseans shudder: The Middle Division of the Tennessee Court of Appeals’ increasingly evident unwillingness to check illegal government action.
This problem—little recognized outside of the small circle of Tennessee public interest lawyers who sue the government—is genuinely frightening. In the past few months alone, judges of the Middle Division of the Tennessee Court of Appeals have held that the government can circumvent judicial review of unconstitutional laws by enacting temporary new laws while refusing to disavow enforcement of the challenged ones. The Tennessee Supreme Court has stepped in and granted review. They have also refused review of whether the government can flagrantly, unapologetically, and deliberately violate final court orders. Again, the Tennessee Supreme Court has stepped in and granted review. Most recently, the Middle Division of the Tennessee Court of Appeals held that citizens who are subject to unconstitutional criminal speech restrictions cannot sue to challenge them before being arrested, reasoning—inexplicably—that even the Tennessee Court of Appeals’ own previous enforcement of the same statute in a civil case represented a “wrongful attempt[] to use [the statute] to establish civil liability,” and that a District Attorney sending a criminal threat letter should really be considered a “civil” matter. “Ironically, the statute does not criminalize a favorable but knowingly false statement a candidate makes about himself/herself,” a trio of Middle Division judges quipped while reinstating the unconstitutional criminal speech restriction at issue. What the panel was describing, of course, is called “viewpoint discrimination”—an “egregious form of content discrimination” that should offend the judiciary, rather than amuse it. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). Further review of this similarly baffling government-friendly ruling is forthcoming, too.
With this context in mind, any couple looking for a last-minute costume idea has one readily available: Illegal government action paired with the Middle Division of the Tennessee Court of Appeals. Nothing in Tennessee today is quite as scary.
Earlier this year, Tennessee enacted the Reentry Success Act of 2021 into law. The Reentry Success Act overhauls Tennessee’s parole laws, and it was designed to reform several components of the parole hearing process, parole determinations, and parole eligibility.
As soon as the Reentry Success Act took effect, however, the Tennessee Board of Parole began insisting that the Act would not be effective for a huge number of its beneficiaries. As grounds, Board of Parole staff attorney Rachel Hitt complained that “the Board does not have the ability or resources necessary to identify” those cases—part of Tennessee Governor Bill Lee’s PR-first, substance-last approach to criminal justice reform. Accordingly, one inmate who was presumptively entitled to be released on parole under the Reentry Success Act of 2021 filed suit, seeking to compel the Board of Parole to comply with the law.
In a late Friday afternoon ruling, Davidson County Chancellor Anne C. Martin agreed that the Board of Parole had violated the Reentry Success Act of 2021. “[T]he Court finds that the Board failed to adhere to the requirement of the Act, codified at Tenn. Code Ann. § 40- 35-503(i) and (j), when it denied [the Petitioner’s] June 23, 2021 request for a parole hearing earlier than July of 2022 and in reasonable proximity to his release eligibility date,” the Court’s ruling reads. Accordingly, it is “ORDERED, ADJUDGED and DECREED that Mr. Hughes’ petition is GRANTED and this matter is REMANDED to the Board of Parole with instructions to DETERMINE his release eligibility date and SET A PAROLE HEARING within sixty (60) days of that date.”
“The Board of Parole has long been Tennessee’s most disgraceful government agency, and the Lee Administration should be ashamed of its two-faced approach to criminal justice reform,” said attorney Daniel A. Horwitz, who represented Mr. Hughes with Horwitz Law, PLLC attorney Lindsay Smith. “Laws are not suggestions—even for unqualified patronage appointees and others who draw taxpayer-funded salaries. We look forward to reuniting Mr. Hughes with his family by Christmas.”
“This precedent-setting victory for Ms. Beavers and her family sends a clear warning to anyone who would abuse the judicial process in an attempt to censor honest, critical consumer reviews and other constitutionally protected speech,” said Horwitz Law, PLLC attorney Daniel Horwitz, a First Amendment, anti-SLAPP, and speech defense lawyer who represented Ms. Beavers along with Sarah Martin. “The First Amendment protects every person’s right to speak freely, and this ruling makes clear that the consequences for plaintiffs who file baseless defamation suits in Tennessee will be severe.”
After Dr. Nandigam dismissed and then refiled his lawsuit against her, Ms. Beavers filed a Petition to Dismiss the Plaintiffs’ claims under the Tennessee Public Participation Act. Ms. Beavers’ petition was granted, and the Tennessee Court of Appeals has now affirmed that dismissal in its entirety while ordering the Plaintiffs to pay Ms. Beavers’ legal fees and potential sanctions. “As [Ms. Beavers] aptly notes in her principal brief, ‘the TPPA . . . was designed to prevent and deter such abuse, not to enable it,'” the Court of Appeals ruled. Ms. Beavers’ claims for attorney’s fees and sanctions against Dr. Nandigam remain pending and will be adjudicated upon remand. The Court of Appeals’ opinion additionally orders that: “We remand this matter to the general sessions court for a determination of the proper amount of reasonable fees incurred by Defendant during this appeal” as well.
On June 4, 2021, Horwitz Law, PLLC filed an amici curiae brief on behalf of the Nashville Area Chamber of Commerce and the election advocacy group Tennesseans for Sensible Election Laws in Metropolitan Government, et al. v. Davidson County Election Commission, et al., Davidson County Chancery Court Case No. 21-0433-IV. Chancellor Russell T. Perkins entered an order accepting the brief on June 7, 2021.
The organizations’ brief asserts that the Davidson County Election Commission acted unlawfully by approving a multi-date referendum petition despite the Metro Charter’s unambiguous requirement that petitioners “prescribe a date” for an election in order to afford appropriate notice to voters. The brief also contends that the Election Commission acted unlawfully and exceeded its jurisdiction by setting the referendum election at issue for an entirely separate third date. Significantly, until now, the Election Commission has long maintained that the Metro Charter’s “prescribe a date” requirement forbids the Election Commission from altering the election date selected by petitioners, making its actions a significant departure from its own longstanding, established practice.
“Both organizations are concerned with the Davidson County Election Commission’s seemingly partisan-motivated, selective interpretations and abrupt change in position regarding long-established rules,” said attorney Daniel A. Horwitz—who filed the brief along with Horwitz Law, PLLC attorney Lindsay Smith—in a statement to the Tennessean. “The Election Commission’s position also ensures a constant stream of expedited, pre-election litigation, and it creates serious concerns that going forward, partisanship will dictate outcomes regarding what is supposed to be the neutral process of election administration.”
In 2019, Tennessee’s free speech law underwent a sea change. The Tennessee Public Participation Act—Tennessee’s first-ever meaningful anti-SLAPP law—took effect, ushering in a host of protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts. Due to a recent decision out of Hamilton County, the constitutionality of the TPPA has now been expressly affirmed. After nearly two years, it is also clear that the TPPA is working as intended “to encourage and safeguard the constitutional rights of persons to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law. . .” See Tenn. Code Ann. § 20-17-102.
Bedsole v. Sinclair Broadcast Group, Inc. is a defamation lawsuit concerning the TV show “Tiny House Nation.” After being sued, the defendants in that case raised claims for dismissal under the TPPA. In response, the plaintiff asserted that the TPPA was unconstitutional in its entirety based on the Tennessee Constitution’s separation of powers doctrine. Thus, in late February 2021, the Hamilton County Circuit Court held a hearing on the contested constitutionality of the statute.
There are, of course, several immediate problems with any broad claim that the Tennessee Public Participation Act is “unconstitutional.” To begin, the TPPA is a collection of statutory provisions, not a single statute. It has many different features—an automatic stay on discovery provision, fee-shifting and discretionary sanctions provisions, an interlocutory appeal provision, and several other provisions—all of which function independently. Several of those provisions also are not even theoretically unconstitutional, and there is no serious argument otherwise. More generally, anti-SLAPP statutes like the TPPA—which is narrowly tailored to preserve judicial discretion—also promote compelling public interests and serve as an essential tool to protect the oft-ignored rights of third parties.
Upon review, the Hamilton County Circuit Court issued a short but forceful ruling affirming the TPPA’s constitutionality. “The TPPA, at least in the eyes of this Court, is clearly predicated upon public policy concerns,” the Court explained. “There can be no serious questions that the intent of the legislature in passing this statute was to effect a more beneficial public policy.” Further, “the over-arching purpose of the statute”—“to provide protection to [Tennessee’s] citizens from SLAPP lawsuits”—“do[es] not mandate any particular result but leave[s] the ultimate decision within the discretion of the trial court.” Indeed, the Court noted, “the statute actually broadens the court’s authority to move past the very low requirements of Rules 8 and 12, and to impose attorney’s fees following a burden shift not previously available to the litigants.” Thus, the Court held, “the constitutional challenge of the Plaintiff is DENIED.”
To be sure, this ruling is excellent news for anyone who cares about free speech in Tennessee. Before the TPPA was enacted,bad actors could credibly threaten to impose tens—if not hundreds—of thousands of dollars’ worth of litigation expenses in SLAPP-suits over a period of several years if their baseless retraction or other demands were not met in legally frivolous speech-based tort cases. That is no longer true, given the very real possibility that a plaintiff who files a SLAPP-suit will be ordered to pay the other side’s legal fees and could potentially be sanctioned. The end result is that negotiating power has flipped, outcomes have dramatically improved, and any number of SLAPP-suits have been avoided entirely because plaintiffs were not willing to risk the severe consequences associated with filing one. Speech defense attorneys (like the author) are also able to defend against SLAPP-suits on a contingent basis now, rather than having to do so on a pro bono basis when a defendant cannot afford to pay for a vigorous defense.
The evidence that the TPPA is working as intended is also indisputable at this juncture. To date, TPPA petitions have been granted in four total cases:
This lawsuit against a woman who posted a negative Yelp! review about a business (fees and sanctions pending appeal);
This lawsuit against a woman who called 911 and sought an order of protection ($26,500.00 fees and sanctions award);
This lawsuit against three community activists who criticized a congressional candidate ($39,000.00 fees and sanctions award); and
This lawsuit regarding charges of animal cruelty (fees and sanctions TBD).
Why, specifically, is the TPPA so effective? The answer is “for several reasons,” but the following three changes are instructive:
1. Prior to the TPPA being enacted, no matter how much money a plaintiff forced a defendant to spend on legal fees in order to defend against a bogus SLAPP-suit, a prevailing defendant’s ability to recover his or her legal expenses after securing a dismissal and then upholding the dismissal through appeal was capped at $10,000.00. That is no longer the case, because under the TPPA, defendants who are subjected to baseless SLAPP-suits can recover their full legal fees and be made whole after winning. That difference has also had enormous practical consequences when it comes to negotiating power and settlement leverage, and it enables rapid dismissals by agreement in cases that might otherwise have lasted years.
2. Prior to the TPPA being enacted, plaintiffs could impose massive litigation costs and expenses and subject defendants to intrusive discovery simply by making baseless allegations that they did not have to substantiate with evidence until much later in a case. That is no longer true, either, because the TPPA allows defendants who are subjected to speech-based lawsuits to force plaintiffs to come forward with admissible evidence to substantiate their claims immediately. If a plaintiff cannot or does not do so, the plaintiff’s lawsuit will be dismissed with prejudice, and the plaintiff will be ordered to pay the defendant’s full legal fees.
3. Trial court judges make mistakes from time to time, and prior to the TPPA being enacted, an erroneous trial court ruling that a cognizable claim for defamation had been alleged could take years to correct—forcing defendants to go through intrusive and costly discovery or even a full-blown trial in the interim. As a consequence, an incorrect trial court ruling frequently had the effect of coercing defendants to settle baseless SLAPP-suits just to avoid the cost and stress of litigation. Now, however, defendants who are subjected to frivolous speech-based lawsuits have a right to take an immediate interlocutory appeal to the Court of Appeals and avoid such expenses by getting damaging trial court errors corrected early.
Even with the TPPA in place, of course, competently defending against defamation and other speech-based lawsuits remains a complex and expensive proposition that requires specialized expertise. Definitionally, the type of people who file SLAPP-suits—and the lawyers who take their cases—are also willing to abuse the legal process in order to censor, intimidate, and retaliate against critics, which means that such cases invariably involve unethical and abusive people as a matter of course. There are also a disturbingly large number of ways that the legal system can be abused successfully by bad actors and unethical people generally, so it remains important to have a competent speech defense lawyer who can effectively push back.
The good news, though, is that with the TPPA in place, litigants’ ability to impose legal consequences now goes in both directions. Plaintiffs who file SLAPP-suits can now be forced to pay very large sums of money to the people they have baselessly sued as well. As detailed above, that has happened already, and while certain gaps in speech-based protections remain, it will continue to happen as long as the TPPA remains in effect. This is good news for everyone who cares about the right to speak freely, as well as the right to hear what others have to say.
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 in general. Disturbingly, though, while other legislative malpractice is typically 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 review—was 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 such 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.
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.
[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.
