In a unanimous panel opinion issued on August 12, 2022, the U.S. Court of Appeals for the Sixth Circuit has ordered that Horwitz Law, PLLC appellate client Kenneth Mynatt’s malicious prosecution and civil conspiracy claims against the United States—maintained under the Federal Tort Claims Act—be reinstated and permitted to move forward. The Court’s unanimous ruling, authored by Judge Richard Griffin, sets critical Circuit precedent that presenting false evidence to secure an indictment is not “discretionary” conduct within the meaning of the Federal Tort Claims Act’s “discretionary function” exception.
“The question here is whether presenting false evidence (in testimonial or documentary form) to a prosecutor and then to a grand jury is the type of conduct ‘that the discretionary function exception was designed to shield.’ The answer here is plainly no,” Judge Griffin explains. In so holding, the Sixth Circuit has joined other federal courts in concluding that “[t]here can be no argument that perjury is the sort of legislative or administrative decision grounded in social, economic, and political policy that Congress sought to shield from second-guessing.” In reversing Middle District of Tennessee District Court Judge William Campbell’s contrary ruling, the Panel further “agree[d] with Mynatt that the district court framed the issue incorrectly and erred[.]”
“We are proud to have represented Mr. Mynatt on appeal and to have won him a unanimous, precedent-setting reversal that permits his Federal Tort Claims Act claims against the United States to move forward,” said Horwitz Law, PLLC principal Daniel A. Horwitz, who represented Mr. Mynatt on appeal along with co-counsel Lindsay Smith.
Read the Sixth Circuit’s unanimous ruling in Kenneth J. Mynatt v. United States of America, et al., here. Mr. Mynatt’s briefing in the case and selected media coverage are available below.
As part of Horwitz Law, PLLC’s appellate practice, Horwitz Law has successfully represented appellate clients in high-stakes, high-profile appeals before the United States Court of Appeals for the Sixth Circuit, the Tennessee Supreme Court, the Tennessee Court of Appeals, the Tennessee Court of Criminal Appeals, the Tennessee Supreme Court Special Workers’ Compensation Appeals Panel, and in administrative agency appeals to Davidson County Chancery Court. Horwitz Law also provides amicus curiae representation in both state and federal appellate courts. If you are seeking appellate representation, you can purchase a consultation from Horwitz Law here.
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 AmyFrogge, 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.
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.
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.”
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.
Third, the Tennessee General Assembly passed one of Governor Bill Lee’s central legislative priorities—a substantial reduction in the current expungement fee that the state assesses people for the privilege of expunging convictions and diverted offenses on their criminal records. Tennessee’s expungement law, which enables people to expunge up to two qualifying convictions, provides an extraordinarily important mechanism for people to move on from an interaction with the criminal justice system and eliminate their criminal record history such that—as a matter of law—it “never occurred.” Although the reform does not wholly eliminate all applicable expungement fees, it reduces the total fee that people will have to pay to expunge a conviction or diversion from $280 to $100 going forward.
These important reforms each move individual rights in the right direction. They reduce private litigants’ ability to abuse the legal process, they curtail the government’s power to infringe upon people’s constitutional rights, and they help ensure that people will not suffer a life sentence for minor criminal convictions solely because they lack the ability to pay a few hundred dollars to expunge their qualifying convictions. Hopefully, progress like this is only a beginning.
Each week, the Institute for Justice — a libertarian public interest law firm that specializes in constitutional litigation — issues a fun “short circuit” newsletter summarizing the interesting U.S. Circuit Court opinions of the week (you can subscribe by clicking here). This week’s summary, authored by John K. Ross, is re-posted below:
Fairfax, Va. nurse engages in sexual innuendo in the workplace. For shame! NLRB: Many staff members enjoyed the odd ribald joke. In fact, the hospital actually fired her for asking management—in concert with other nurses—for certain accommodations. D.C. Circuit: Agreed. Fun Fact: No union = no problem. The NLRB has jurisdiction.
To impose a penalty, in this case for late paperwork, four of six FEC commissioners must vote in favor of enforcement. Is it cool that failing to vote counts as a yes vote? D.C. Circuit: It gives us pause, but we need not resolve the issue just now.
Inmate Liaison Committee member at Fishkill, N.Y. prison files grievance on behalf of prisoners, is sent to solitary confinement for 90 days. Retaliation? Second Circuit: That’s a possibility.
Fifth Circuit: No new trial for a former New Orleans, La. police officer convicted of burning the body of a police-shooting victim to cover up the victim’s death in the aftermath of Hurricane Katrina.
Litigation pro-tip from the Sixth Circuit: When challenging an ordinance that requires your client to mow the curb strip in front of his house, maybe don’t compare the city to North Korea, “a totalitarian regime that notoriously tortures criminal defendants, executes non-violent offenders, and sends those accused of political offenses to ‘brutal forced labor camps.’”
Should the prevailing party in a just-compensation case involving abandoned property receive attorneys’ fees even if the district court doesn’t feel like awarding them? In a word, yes, says the Seventh Circuit.
A strip club in Winnebago County, Wis., successfully demonstrates that the county’s permitting scheme for adult businesses is an unconstitutional prior restraint. Can the county regulate the club under a new zoning code, or is the club now a preexisting nonconforming use? Seventh Circuit: Now that the First Amendment thing is settled, let the state courts figure out the rest.
DEA agents seize $239,400 cash money from train passenger. He’s free to go; they don’t find any contraband. Gov’t: Sucks for you, guy. You don’t have standing to try and get the money back. Seventh Circuit: Yeah, no, he does.
In which the Seventh Circuit expresses concern about the reliability of drug doggies but gives no succor to man sent away for 20 years for cocaine possession.
Officers scuffle with detainee in Ferguson, Mo. jail. After subduing detainee, officers continue to kick and beat him. Blood gets on the officers’ uniforms, so the detainee is charged with damaging property—among other things. Detainee sues, alleges excessive force. Eighth Circuit: Contra the district court, a concussion, scalp laceration, and bruising cannot be considered de minimis for qualified immunity purposes.
Convict to judge: I hope you die slowly of a painful disease. U.S. Marshals to convict: We’re going to arrange for you to be mistreated. Eighth Circuit: No qualified immunity for the marshals. Fun fact: If you get invited to a “blanket party,” do not go.
Hawaiians challenge the “cabotage” requirement of the Jones Act, under which all shipping between domestic ports must be carried out by ships made in America and owned by Americans, alleging that it forces them to pay higher prices for goods.Ninth Circuit: Even if you had standing, which you don’t, you would still lose.
A 370 lb. mountain goat with a nasty attitude and no fear of humans menaces visitors and rangers in Olympic National Park for years, then finally kills a hiker. Ninth Circuit holds negligence suit is barred by the Federal Tort Claims Act’s “discretionary function” exception. Dissent: Doing nothing to protect the public from an unruly beast the size of an NFL lineman was not a “policy” choice—it was garden-variety negligence.
After having previously concluded that the First Amendment does not apply to a Florida prohibition on doctors inquiring about their patients’ gun ownership, a panel of the Eleventh Circuit changes its mind: The First Amendment applies, but the prohibition is still constitutional. (Interested in occupational speech? Read IJ’s latest cert. petition to the U.S. Supreme Court.)
And in en banc news, the Third Circuit will reconsider whether the government must file a forfeiture petition if it wants to keep 10 ultra-rare coins given to Treasury officials for authentication and then not returned to the owner.
