Nearly all of Tennessee’s public officials should purchase libel insurance to protect themselves from baseless defamation lawsuits regarding statements that they make on the job. That’s the clear message that a panel of Tennessee’s Court of Appeals has sent to public employees across the state in Burns v. State, No. E2018-02174-COA-R9-CV, 2019 WL 6341041 (Tenn. Ct. App. Nov. 26, 2019), a recent decision that will carry predictable and wide-ranging consequences.
In December 2015, an Ooltewah, Tennessee teenager was viciously raped with a pool cue in what was described as a high school basketball team-related “hazing incident.” The victim suffered serious injuries and required emergency surgery. The rape also resulted in a slew of criminal charges against both the assailants and several of the team’s coaches, who had allegedly failed to report it in compliance with mandatory reporting statutes.
During early criminal proceedings, Gatlinburg Police Department Detective Rodney Burns provided disturbing testimony regarding the attack, contending, among other things, that it was not rape, but just “something stupid kids do.” The presiding judge characterized the detective’s testimony as “troubl[ing],” which can fairly be described as an understatement. As the Times Free Press reported:
“Detective Rodney Burns with the Gatlinburg Police Department testified Monday about his investigation into the Dec. 22 attack, saying it was not sexual in nature. He said those accused of rupturing the boy’s bladder and colon with a pool cue received no sexual gratification during the attack, arguing that what happened wasn’t sexual assault.
‘There was no rape or torture, no screams of anguish,’ Burns said. Later, he testified that the victim’s screams caused the perpetrators to run out of the room and alerted the coaches something was wrong.
While on the stand, Burns also testified that the three adults charged in this case each handled the situation correctly and were cooperative during his investigation. He said this case has been blown out of proportion.”
“Detective Burns in his testimony before Juvenile Court Judge Rob Philyaw said the case ‘appeared to be kids being kids – a hazing thing. It was something stupid that kids do and shouldn’t have been done.’
He praised the action of the three defendants, saying they were very helpful in handling of the case.
He said attacks against three other players on the team were not charged as rapes, but as assaults, because their clothing was not penetrated as in the case of the 15-year-old who was seriously injured. He said all were clothed and the case did not involve ‘sexual gratification.'”
Significantly, Judge Philyaw was not the only individual who expressed concern about Detective Burns’ testimony, which caused an international uproar. Instead, given apparent “differences between the detective’s testimony and what he wrote in an earlier report,” Hamilton County District Attorney Neal Pinkston asked the Tennessee Bureau of Investigation to investigate whether Detective Burns had committed perjury.
On February 18, 2016, Pinkston’s office issued a public statement explaining that: “General Pinkston believes Detective Burns perjured himself in Hamilton County Juvenile Court on Monday, February 15. That’s the only reason he asked the TBI to investigate. He swore an oath to prosecute crimes, no matter who commits them.” Burns was ultimately indicted for two counts of aggravated perjury by a Hamilton County Grand Jury, though the charges were later dropped.
Unhappy with District Attorney Pinkston’s statements about him, Detective Burns filed a claim for libel with the Division of Claims Administration. Burns’ libel lawsuit asserted that he had been damaged by the publication of Pinkston’s allegedly defamatory statements accusing him of perjury, and he demanded that the State of Tennessee pay him $300,000.00 in damages as a consequence. See Tenn. Code Ann. § 9-8-307(a)(1)(R) (Supp. 2019) (affording the Claims Commission “exclusive jurisdiction to determine all monetary claims against the state based on the acts or omissions of ‘state employees’” with regard to “[c]laims for libel and/or slander where a state employee is determined to be acting within the scope of employment.”). Seeking to have the case thrown out immediately, the State of Tennessee moved to dismiss Burns’ libel claim on the basis that District Attorney Pinkston was absolutely privileged to make allegedly defamatory statements during the course of his official duties.
The State’s defense was based on the Tennessee Supreme Court’s decision in Jones v. State, 426 S.W.3d 50 (Tenn. 2013), which had recognized such a privilege for cabinet-level officials in an effort to shield such officials from frivolous lawsuits and enable them to spend their time serving the public free from concerns about defamation litigation. (Somewhat inexplicably, lawyers representing the State also apparently failed to raise the long-recognized and clearly applicable litigation privilege as a defense, which affords litigants absolute immunity from defamation liability for “statements made in the course of judicial proceedings.” See Jones v. Trice, 360 S.W.2d 48, 51 (Tenn. 1962).) Upon review of a narrow certified question of law as to whether the Tennessee Supreme Court’s holding in Jones applied more broadly to other public employees, a unanimous panel of the Tennessee Court of Appeals held that the absolute privilege recognized in Jones was restricted to high-ranking officials only, and that District Attorneys like Pinkston were not permitted to invoke it. Specifically, the Court explained:
The State posits that for the public policy reasons that initially engendered the Executive Official Privilege, district attorneys general should enjoy absolute immunity, arguing specifically that the absolute privilege would facilitate (1) the need for district attorneys general to communicate while exercising their duties without fear of facing litigation, (2) the public’s right to be informed regarding the prosecution of crimes and the activities of the district attorney’s office, and (3) the need for district attorneys general to focus their time on official duties without spending time defending defamation lawsuits. The State’s argument in this regard reflects our Supreme Court’s recognition of “the tension that exists between two competing social commodities: reputation and information.” See Funk, 570 S.W.3d at 211; see also Jones, 426 S.W.3d at 56 (“We recognize that in some cases, the application of an absolute privilege to cabinet-level state officials may leave aggrieved individuals without a remedy.”). See generally Barr v. Matteo, 360 U.S. 564, 571 (1959). However, in Jones, our Supreme Court determined that this balance weighed toward the commodity of information only insofar as the Court adopted absolute immunity for “cabinet-level executive officials.” See Jones, 426 S.W.3d at 58.
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In support of its position, the State relies in part on a handful of state appellate decisions from other jurisdictions wherein those states have extended an absolute official privilege to district attorneys general. See Bianchi v. McQueen, 58 N.E.3d 680, 702 (Ill. App. Ct. 2016); Foster v. Pearcy, 387 N.E.2d 446, 449 (Ind. 1979); Sims v. Barnes, 689 N.E.2d 734 (Ind. Ct. App. 1997); Candelaria v. Robinson, 606 P.2d 196, 199 (N.M. Ct. App. 1980); Pickering v. Sacavage, 642 A.2d 555, 559 (Pa. Commw. Ct. 1994); O’Connor v. Donovan, 48 A.3d 584, 592 (Vt. 2012). As the State acknowledges, these authorities constitute persuasive rather than controlling authority for Tennessee state courts. Having considered these authorities, we are not persuaded that this minority view should sway us from the confines of the Tennessee Supreme Court’s adoption of the Executive Official Privilege as limited to cabinet-level or high-ranking state executive officials. See Jones, 426 S.W.3d at 56 n.7 (“We do not decide in this case whether the privilege of absolute immunity extends beyond cabinet-level officials.”).
See Burns v. State, No. E201802174COAR9CV, 2019 WL 6341041, at *10-12 (Tenn. Ct. App. Nov. 26, 2019) (emphasis added). The Court took care to emphasize, however, that despite the State’s apparent failure to assert them, several other outcome-determinative defenses might well apply.
The Court of Appeals’ decision in Burns carries significant, immediate, and predictable consequences. Specifically, because it is now clear that virtually no public officials qualify for the absolute privilege that immunizes from suit statements made during the course of their official duties, the risk of being subjected to defamation lawsuits is significantly heightened. Worse, such lawsuits—which are almost uniformly meritless but can nonetheless be ruinously expensive—generally will not be subject to the heightened protections available under the newly enacted Tennessee Public Participation Act, which expressly does not apply to any “governmental entity, agency, or employee.” See Tenn. Code Ann. § 20-17-103(7). Accordingly, all governmental employees should seriously consider purchasing libel insurance to protect themselves in the event that they are sued in their individual (rather than official) capacities for statements made during the course of their official duties, particularly if their roles include sharing information about alleged criminal conduct, misconduct investigations, or suspected abuse.
Read the Tennessee Court of Appeals’ unanimous decision in Burns v. State of Tennessee, authored by Judge Thomas R. Frierson II, here.
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 See Burns v. State, No. E201802174COAR9CV, 2019 WL 6341041, at *12 (Tenn. Ct. App. Nov. 26, 2019) (“Finally, within this interlocutory appeal, the State has at no time requested certification of a question as to whether district attorneys general in Tennessee should be afforded a conditional privilege as state officials. See Simpson Strong-Tie Co., 232 S.W.3d at 22 (“[A] qualified or conditional privilege is one that may be defeated if the defamatory publication was made with malice, ill-will, or for an improper purpose.”). We will therefore issue no holding in this decision concerning whether district attorneys general should be afforded a conditional privilege due to their status as state officials. See Tenn. R. App. P. 9; In re Bridgestone/Firestone, 286 S.W.3d at 902. We note that depending on the situation, other privileges or immunities may apply to protect a district attorney general’s statements made within the scope of his or her official duties as a prosecutor, such as absolute prosecutorial immunity for “conduct intimately associated with the judicial process,” see Morton v. State, No. M2008-02305-COA-R3-CV, 2009 WL 3295202, at *3 (Tenn. Ct. App. Oct. 13, 2009), or the absolute immunity of the litigation privilege for “statements made in the course of judicial proceedings,” see Jones v. Trice, 360 S.W.2d 48, 51 (Tenn. 1962). We emphasize that within the parameters of this interlocutory appeal, we have reached no conclusion as to whether General Pinkston made the statements at issue within the scope of his official duties.”).