Category Archives: Constitutional Law

Tennessee Supreme Court Shuts Door On Nearly All Malicious Prosecution Claims That Arise Out of Criminal Proceedings

Constitutional Law, Criminal Procedure,

By Daniel A. Horwitz:

Malicious prosecution—a common law tort claim—is designed to afford civil redress to people who are subjected to maliciously false lawsuits or criminal charges.  Between the two, being an innocent person who is wrongfully charged with a crime based on malicious falsehoods is worse.  As the U.S. Supreme Court has observed, “[a]rrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”[1]  Put another way (as the Fifth Circuit has):

“[A] wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.”[2]

With this context in mind, the tort of malicious prosecution exists to deter people from initiating knowingly baseless charges for malicious purposes and to enable those who are harmed by such charges to be made whole.  Nobody seriously disputes the public policy value of such a tort.  Indeed, independent of civil liability, it is a crime to initiate a knowingly false report to a law enforcement officer for a reason.[3]

By the same token, society has strong interests in encouraging people to report crimes and to insulate those who do so in good faith from retaliatory lawsuits.  Nobody reasonably disputes this, either.  That is why Tennessee (rightly) sets a high bar for malicious prosecution claims and recognizes multiple easy-to-prove defenses along with three separate (and overlapping) common law and statutory immunities from suit—all of which function to protect good-faith reporters from any serious fear of liability and enable them to recover their legal expenses whenever they are improperly sued.

As of yesterday, though, based on practical realities of the criminal justice system that the Tennessee Supreme Court’s unanimous opinion in Mynatt v. NTEU utterly fails to acknowledge, what was previously a high bar has become impossible to clear in nearly all criminal cases.  The essential holding of the Court’s opinion is that “plaintiffs can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused.”[4]  Because Tennessee’s criminal judgment form does not contemplate such a finding, though—and because innocent criminal defendants lack any power to force courts or prosecutors to declare their innocence on their dismissal documents—this standard is illusory as a practical matter.  Thus, when a prosecutor determines that a defendant is innocent and opts to dismiss the charges against him as a result, a defendant who wishes to maintain a subsequent malicious prosecution claim must now object to the dismissal of the charges and demand a trial instead.

This will never (and should never) happen.  It also makes little sense to treat criminal defendants whose cases reach trial more favorably than those against whom evidence was so weak that a prosecutor agreed to dismiss charges without one.  That is not just the author’s view, either.  As Justice Kavanaugh explained for the United States Supreme Court when assessing the same issue under federal law just last year:

“[R]equiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a [malicious prosecution] claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense.”[5]

It is not entirely clear from the Tennessee Supreme Court’s opinion—which contains several glaring errors (like misstating the relevant statute of limitations applicable to criminal proceeding-based malicious prosecution claims and mischaracterizing the substance of the trial court order under review)—that even an acquittal after trial will suffice, either.  As even the most naïve observers of the criminal justice process are aware, an acquittal does not actually reflect a judgment “due to the innocence of the accused,” which is what the Tennessee Supreme Court now says is the standard.  To the contrary, an acquittal “does not prove innocence but, rather, indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime.”[6]  Independently, because a separate element of malicious prosecution claims is that a charge must have been initiated without probable cause, charges that reach trial traditionally preclude malicious prosecution liability based on the “interim adverse judgment rule” on the ground that a charge “had sufficient potential merit to proceed to trial[.]”[7]  A rule that acquitted criminal defendants may (maybe) maintain malicious prosecution claims—but that defendants whose cases were dismissed before trial cannot—is also asinine, “upside down[,]” and has the “perverse consequence of ensuring that some of the most deserving plaintiffs, those who are falsely accused and whose cases were dismissed early on, could not sue . . . .”[8]

All of this is deeply unfortunate.  And the basis for the ruling—which overrules two centuries of Tennessee precedent in favor of adopting the standard for malicious prosecution claims that arise out of civil proceedings—is even worse.  Unlike criminal defendants, civil defendants who are victimized by fraudulent civil litigation have a wide range of tools at their disposal under Tennessee law that enable them to be made whole—including the ability to pursue sanctions even after dismissal,[9] prevent non-merits dismissals merely by moving for summary judgment,[10] and obtain up to $10,000.00 following early-stage dismissals under Tenn. Code. Ann. § 20-12-119(c).  To the extent that the Tennessee Supreme Court was concerned about exposing good-faith reporters to discovery, people who are sued for malicious prosecution for reports to law enforcement also have the ability to stay discovery—every time[11]—merely by petitioning under the Tennessee Public Participation Act, and they can win immediately (and recover their legal expenses) simply by demonstrating that they reported in good faith.

The practical result of the Tennessee Supreme Court’s ruling is that—with the exception of criminal defendants whose charges are dismissed at the earliest possible stage of proceedings for lack of probable cause—no Tennessee criminal defendant will ever be able to maintain a malicious prosecution claim.  A person who falsely accuses, in bad faith, someone of committing a crime can also largely insulate themselves from subsequent malicious prosecution liability just by testifying falsely at a preliminary hearing or filing a false report that facially establishes probable cause.  It goes without saying that society will not benefit from this standard or the perverse incentives it creates.

Considered broadly: If the Tennessee Supreme Court wants to shut the door to righteous civil claims—something it has been increasingly aggressive about doing—it should just say so.  Pretending that claims are available when—as a practical matter—they are illusory compromises the judiciary’s integrity and misleads the public by suggesting that wrongs have remedies when they do not.  Judges—who enjoy absolute immunity from nearly all such claims of wrongdoing—also are not likely to appreciate the genuine consequences of such an approach.  Perhaps it will take a member of the judiciary being wrongfully arrested based on maliciously false criminal charges, suffering the personal and professional humiliation of a false-but-widely-publicized criminal accusation, and finding him or herself without redress after the charge is dismissed for that to change.  Until then, Mr. Mynatt deserved better.

Read the Tennessee Supreme Court’s unanimous ruling in Mynatt v. Nat’l Treasury Emps. Union, Chapter 39, No. M2020-01285-SC-R11-CV, 2023 WL 3243237 (Tenn. May 4, 2023), authored by Chief Justice Roger Page, here: https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%202020-1285-SC.pdf

Questions about this article?  Contact the author at daniel [at] horwitz.law.

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[1] United States v. Marion, 404 U.S. 307, 320 (1971).

[2] Richey v. Smith, 515 F.2d 1239, 1244 n.10 (5th Cir. 1975).

[3] Tenn. Code Ann. § 39-16-502.

[4] Mynatt v. Nat’l Treasury Emps. Union, Chapter 39, No. M202001285SCR11CV, 2023 WL 3243237, at *1 (Tenn. May 4, 2023).

[5] Thompson v. Clark, 212 L. Ed. 2d 382, 142 S. Ct. 1332, 1340 (2022).

[6] State v. Turner, No. W200700891CCAR3CD, 2010 WL 2516901, at *9 (Tenn. Crim. App. June 22, 2010), aff’d, 352 S.W.3d 425 (Tenn. 2011).

[7] Parrish v. Latham & Watkins, 400 P.3d 1, 4 (Cal. 2017).

[8] Tr. of Oral Argument at 73:10–17, Thompson v. Clark, 142 S. Ct. 1332 (2022) (No. 20-659), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-659_lkgn.pdf.

[9] Menche v. White Eagle Prop. Grp., LLC, No. W2018-01336-COA-R3-CV, 2019 WL 4016127, at *10 (Tenn. Ct. App. Aug. 26, 2019).

[10] See Tenn. R. Civ. P. 41.01(1).

[11] Cf. Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 734, 74 P.3d 737, 741 (2003) (noting that California’s anti-SLAPP law “potentially may apply to every malicious prosecution action”).

Tennessee Court of Appeals Affirms Trial Court Order Invalidating School Board Censorship Clause in Ex-Director Shawn Joseph’s Severance Agreement

Appeals, Civil Procedure, Constitutional Law, Contract Law, First Amendment, Opinions, Tennessee Constitutional Law

In a pair of separate opinions issued June 20, 2022, the Tennessee Court of Appeals affirmed a ruling by Davidson County Chancery Court Judge Ellen Hobbs Lyle in favor of Plaintiffs Amy Frogge, Fran Bush, and Jill Speering, all represented by Horwitz Law, PLLC.  The ruling arose out of a lawsuit filed against Metro and ex-MNPS Director Shawn Joseph regarding the legality of the School Board Censorship Clause contained in Joseph’s severance agreement.  In a September 2020 Memorandum Order, Chancellor Lyle struck down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.

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

Upon review of Chancellor Lyle’s ruling, the Court of Appeals unanimously affirmed in a pair of separate opinions.  By the time the case reached appeal, the Defendants had all but conceded that what they had done was illegal and attempted to use that concession as a basis for avoiding a judgment.  In their majority opinion, Judges Carma Dennis McGee and Andy Bennett noted that: “The fact that the defendants admit in their briefs that their contract was unlawful should not prevent Plaintiffs from having standing to challenge the contract in court.”  In a separate concurring opinion, Judge McBrayer undertook a wider review of several issues that the majority determined Metro and Joseph had waived through deficient briefing, and he held that:

“Here, the chancery court concluded that there was ‘no material dispute that the Nondisparagement Clause contained in the Severance Agreement . . . does not promote a compelling governmental interest, that it is unconstitutional, and that is an overbroad and unenforceable speech restriction.’ Based on my review of the record, I conclude the same.”
“This is a landmark victory on behalf of both elected officials’ free speech rights and citizens’ right to hear from their elected representatives,” said attorney Daniel A. Horwitz, who represented all three Plaintiffs along with co-counsel Lindsay Smith.  “Metro and Joseph should be ashamed of their efforts to gag elected officials and prevent them from speaking honestly with their constituents about issues of tremendous public importance, and their illegal attempt to do so should serve as a costly warning to other government officials to think twice before violating the First Amendment.”  Selected case documents and media coverage are linked below.

Selected Case Documents:

*Tennessee Court of Appeals Opinion Affirming Summary Judgment and Awarding Appellate Fees

*Concurring Opinion Affirming Judgment

*Post-Remand Order Granting $110,000.00 Attorney’s Fee Award

*Order Granting Summary Judgment and Denying Defendants’ Motions to Dismiss

*Order Granting $58,543.52 Attorney’s Fee Award

–Principal Brief of Plaintiffs-Appellees

–Reply Brief of Plaintiffs-Appellees

–Plaintiffs’ Complaint

–Plaintiffs’ Memorandum in Support of Motion for Summary Judgment

–Metro Response/Joseph Response In Opposition to Summary Judgment

Selected Media Coverage:

-The Tennessean: Tenn. appeals court finds part of MNPS director Joseph’s severance deal unconstitutional

-Channel 5: Court invalidates censorship clause in MNPS former director Shawn Joseph’s termination contract

-Main Street Nashville: Court rules non-disparagement clause in termination contract was unconstitutional

-TCOG: Non-disparagement clause violates free-speech rights of Nashville school board members, court says

-The Tennessean: Judge finds part of MNPS director Shawn Joseph’s severance agreement ‘unconstitutional’

-Fox 17: Court order finds clause in ex-MNPS director’s contract is unconstitutional, unenforceable

-Channel 4: Judge rules censorship clause in former Director of School’s severance agreement unconstitutional

###

As part of Horwitz Law’s First Amendment practice, Horwitz Law has successfully represented and advised numerous state and local elected officials, candidates for public office, PACs and political organizations, county political parties, and other political law clients across Tennessee.  If you are seeking First Amendment or political law assistance, you can purchase a consultation from Horwitz Law here.

The Tennessee Bureau of Investigation Lacks Authority to Violate Court Orders, Rules Tennessee Supreme Court

Civil Procedure, Constitutional Law, Criminal Law, Expungement,

“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.

Principal Brief: https://horwitz.law/wp-content/uploads/Principal-Brief-of-Appellant-Stampfiled.pdf

Reply Brief: https://horwitz.law/wp-content/uploads/Appellants-Reply-Brief.pdf

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

Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance Held In Contempt, Ordered to Return $64,000.00 It Collected in Willful Violation of Permanent Injunction

Constitutional Law, Election Law, First Amendment, ,

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.

Read the Chancery Court’s Memorandum Opinion and Order on Plaintiff’s Petition for Contempt here: https://horwitz.law/wp-content/uploads/Memorandum-Opinion-and-Order-on-Plaintiffs-Petition-for-Contemp-1.pdf

The Spookiest Thing In Tennessee Today Is the Middle Division of the Tennessee Court of Appeals’ Refusal to Check Illegal Government Action

Civil Procedure, Constitutional Law, Tennessee Constitutional Law

By Daniel A. Horwitz

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.

What makes the Middle Division’s near-constant refusal to rule against the government when it acts illegally so inexplicable is that nobody else seems to struggle with the issue.  The Tennessee Supreme Court does its job of holding the government accountable when it breaks the law.  So do federal courts.  So do judges from other Divisions of the Tennessee Court of Appeals. So do Tennessee’s trial courts.  So, too, does even the Constitution-hating Tennessee General Assembly itself, which recently enacted a law stating that Tennessee’s judiciary must adjudicate claims filed by “any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.”  The Middle Division alone, however, is apparently unwilling to do so.

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.

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Tennessee Court of Appeals Affirms First-Ever Anti-SLAPP Judgment Under the Tennessee Public Participation Act

Civil Procedure, Constitutional Law, Defamation, First Amendment, Judgments, Tort Law, ,

In a precedent-setting, unanimous ruling, the Tennessee Court of Appeals has affirmed the first trial court judgment ever issued under the Tennessee Public Participation Act, Tennessee’s recently enacted anti-SLAPP statute.  The ruling establishes several critical precedents for free speech law in Tennessee, and it represents a total victory for Wilson County woman Kelly Beavers, who has spent nearly two years defending her constitutional right to post a negative review on Yelp!.

“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.”

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

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.

Read the Tennessee Court of Appeals’ unanimous ruling in Nandigam Neurology, et al. v. Kelly Beavers here: https://www.tncourts.gov/sites/default/files/nandigamneurologyv.beavers.opn_.pdf

 

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

Constitutional Law, Judgments, Opinions,

By Daniel A. Horwitz

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

Historically, many have explained away Tennessee’s legislative spigot of unconstitutionality as just another manifestation of the General Assembly’s gleeful stupidity.  By coming after Davidson County Chancellor Ellen Hobbs Lyle, however—a veteran judge appointed by a Republican Governor, and one of Tennessee’s most widely respected jurists—the General Assembly has made clear that its routine incompetence is also paired with a large helping of malice toward constitutional constraints 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.

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

Constitutional Law, Tennessee Constitutional Law, ,

By Daniel A. Horwitz

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Law, First Amendment, Tennessee Constitutional Law,

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

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

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

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

###

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

Constitutional Law, First Amendment, , , ,

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

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

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

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

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

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