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

By Daniel A. Horwitz:

State Representative John Mark Windle represents the constituents of Tennessee House District 41.  District 41 is home of the now-shuttered Jamestown Regional Medical Center, which closed last year following a series of financial and legal issues.  Among those issues were substantial federal tax liens, which “show the IRS is after more than $474,000 in unpaid taxes associated with the hospital’s owner.

Following the hospital’s closure, in this interview with WATE Channel 6 news, Rep. Windle made several cutting comments about Seamus Lagan, the hospital’s part owner and the CEO of its corporate owner, Rennova Health.  In particular, Rep. Windle stated:

“It’s not fair for people who have children in high school and college and have bills to pay for some thief to come into Tennessee and take these people’s money and mistreat them . . .  Unfortunately, an Irish gangster was allowed to buy the Jamestown Regional Medical Center.  Since that time, he has constantly cheated the employees and mismanaged the hospital to such degree that it’s no longer viable.  He didn’t pay federal income tax withholding, he didn’t pay unemployment compensation, as he’s required to by both federal and state law . . .  He’s simply a thief and should be prosecuted.”[1]

Displeased with the comments that Rep. Windle had made about him, Lagan sued Windle for defamation and false light invasion of privacy in the United States District Court for the Middle District of Tennessee.  Of some note, Lagan’s Complaint—which sought “in no event an amount less than One Hundred Thousand Dollars ($100,000.00)”—was also filed on June 28, 2019, just three days before Tennessee’s new anti-SLAPP statute took effect.

Lagan ultimately filed an Amended Complaint,[2] which Rep. Windle promptly moved to dismiss on two grounds: (1) that Lagan had failed to state a cognizable claim for defamation, and (2) that Lagan’s lawsuit was barred by absolute legislative immunity.  In a Memorandum Opinion issued on May 13, 2020, District Court Judge Waverly Crenshaw denied the motion and allowed the lawsuit to move forward.

With respect to Rep. Windle’s claim that none of the statements over which he had been sued was capable of conveying a defamatory meaning as a matter of law, Judge Crenshaw held that the far more serious statements at issue—those about Lagan being a “gangster” and a “thief” who “should be prosecuted”—were not actionable as defamation, because they were “the classic type of ‘loose, figurative or hyperbolic’ language protected by the First Amendment.”[3]  Even so, Judge Crenshaw declined to dismiss Lagan’s defamation claim because:

“Rep. Windle went further and equated Lagan with JRMC and suggested they are one. . . . Rep. Windle asserted that Lagan owns and controls JRMC, that Lagan cheated JRMC employees, that Lagan mismanaged JRMC by not paying its taxes or employee benefits, all of which caused the closure of JRMC. For now, it is Lagan’s averments that control the Court’s analysis and he avers that he was not part of the hospital’s management team and was only a mere 1% stock owner. Maybe Rep. Windle will be proven right when the facts he relied upon are disclosed, but for now at this preliminary stage, the Court must take as true that Lagan is not JRMC and JRMC is not Lagan. As a result, dismissal is not legally required.”[4]

This ruling is inexplicable.  Both under Tennessee law and in common parlance, a principal can be deemed responsible for the acts of its agents,[5] and Lagan admitted that he was a part owner of the embattled hospital and also the CEO of its corporate owner.  Further, Rep. Windle’s statements regarding the hospital’s financial mismanagement—which Judge Crenshaw held were capable of conveying a defamatory meaning—are self-evidently more innocuous than the statements regarding Lagan being a “gangster” and a “thief” who “should be prosecuted,” which Judge Crenshaw (correctly) held were not.

Judge Crenshaw additionally held that Rep. Windle was not protected by absolute legislative immunity regarding the statements over which he was sued.  Rejecting this defense, his Memorandum Opinion states:

“Indeed, Rep. Windle is entitled to legislative immunity for comments made as part of the legislative function. [sic]  Issa v. Benson, 420 S.W.3d 23, 26 (Tenn. Ct. App. 2013), which encourages the unencumbered exercise of legislative speech and debate.  Miller v. Wyatt, 457 S.W.3d 405, 409 (Tenn. Ct. App. 2014). But, legislative immunity is not all encompassing. Id. at 410.  It applies only to remarks relating to the official’s “legitimate legislative function,” Issa, 420 S.W.3d at 426, 428, which depends on the nature and scope of the statement.  Id. at 428; see Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998).[6]

Lagan has alleged facts that plausibly suggest Rep. Windle was not acting in his legislative capacity.  The Verified Amended Complaint alleges that Rep. Windle’s comments were made directly to the press outside of the legislative process.  In other words, Lagan plausibly pleads that Rep. Windle’s comments had nothing to do with the deliberative legislative process.  Construing the Verified Amended Complaint in the light most favorable to Lagan, as required, Rep. Windle’s motion to dismiss must be denied.”

This ruling, too, is inexplicable.  To begin, legislative immunity extends far beyond mere “legislative speech and debate” as intimated.  Instead, given “the importance of legislators freely speaking their minds,”[7] the absolute legislative privilege “attaches to all actions taken ‘in the sphere of legitimate legislative activity’”[8] and applies broadly to all statements made by a legislator that “relat[e] to matters within the scope of [the legislator’s] authority.”[9]  Here, given that the very interview over which Rep. Windle was sued expressly identifies him as a State Representative who had been “receiving numerous calls from constituents” regarding the hospital closure, and given further that Lagan’s own Complaint appended as an exhibit and expressly incorporated a letter to the Tennessee Department of Labor and Workforce Development regarding the hospital that was printed on Rep. Windle’s official stationary, the notion that his statements did not relate to matters within his role as a legislator is farcical.

Because Rep. Windle’s Motion to Dismiss was denied, the lawsuit against him moves forward.  Thus, he will now be subjected to discovery—an expensive and frequently abusive and intrusive process—regarding the statements over which he has been sued.  Worse, Judge Crenshaw ordered that Rep. Windle could not move to dismiss Lagan’s lawsuit on summary judgment until he first comes to the settlement table.  See May 13, 2020 Order, Case 2:19-cv-00050, Doc. #46 (“the parties are directed to engage in at least two attempts to resolve this case, one of which must take place before any other dispositive motion may be filed.”).  The predictable result is that elected officials across—at minimum—the State of Tennessee will now be more inclined than they were before to self-censor and refrain from candid discussion of issues that are important to their constituents out of fear of personal liability and concern that judges will allow transparent SLAPP-suits like Seamus Lagan’s to go forward against them.

Read District Judge Waverly Crenshaw’s Memorandum Opinion denying Rep. Windle’s Motion to Dismiss For Failure to State a Claim here.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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[1] See SEAMUS LAGAN, Plaintiff, v. JOHN MARK WINDLE, Defendant., No. 2:19-CV-00050, 2020 WL 2494457, at *1 (M.D. Tenn. May 13, 2020).

[2] The filing of Lagan’s Amended Complaint arguably enabled Representative Windle to seek dismissal under Tennessee’s now-in-effect anti-SLAPP statute, see Barrett v. Chesney, No. W201401921COAR9CV, 2015 WL 5679922, at *5 (Tenn. Ct. App. Sept. 28, 2015) (“An ‘amended complaint,’ complete in itself without adoption or reference to original, supersedes and destroys the original complaint as a pleading[.]”); Shell v. Williams, No. M2013-00711-COA-R3CV, 2014 WL 118376, at *2, n. 4 (Tenn. Ct. App. Jan. 14, 2014) (same), though a Tennessee Public Participation Act Petition to dismiss was not filed.

[3] Lagan, 2020 WL 2494457, at *2 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990)).

[4] Id.

[5] See, e.g., White v. Revco Disc. Drug Centers, Inc., 33 S.W.3d 713, 723 (Tenn. 2000).

[6] Lagan, 2020 WL 2494457, at *2 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990)).

[7] Cornett v. Fetzer, 604 S.W.2d 62, 63 (Tenn. Ct. App. 1980).

[8] Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S. Ct. 966, 972, 140 L. Ed. 2d 79 (1998)

[9] Cornett, 604 S.W.2d at 64 (emphasis added).

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