Burns v. State

• Decision Date: 26 November 2019
• Docket Number: No. E2018-02174-COA-R9-CV,E2018-02174-COA-R9-CV
• Citation: 601 S.W.3d 601
• Court: Tennessee Court of Appeals
• Parties: Floyd Rodney BURNS v. STATE of Tennessee

601 S.W.3d 601

Floyd Rodney BURNS

v.STATE of Tennessee

No. E2018-02174-COA-R9-CV

Court of Appeals of Tennessee, Eastern Section, AT KNOXVILLE.

August 20, 2019 Session

FILED November 26, 2019

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; and Laura Miller, Assistant Attorney General, for the appellant, the State of Tennessee.

Bryan E. Delius and Bryce W. McKenzie, Sevierville, Tennessee, for the appellee, Floyd Rodney Burns.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Kenny W. Armstrong, J., joined.

Thomas R. Frierson, II, J.

This appeal arose from a claim filed with the Tennessee Claims Commission ("the Commission") against the State of Tennessee ("the State"), seeking an award of damages for defamation allegedly committed by a district attorney general through statements made to the media concerning the claimant. The State filed, inter alia , a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim upon which relief could be granted, and the claimant filed, inter alia , a response objecting to the motion. Following a hearing, the Commission denied the State's motion to dismiss upon finding, in pertinent part, that the Commission did not have the authority to extend absolute immunity to district attorneys general. Upon the State's application, the Commission and this Court each granted permission for interlocutory review. Having considered the certified question of whether the absolute privilege afforded to state officials for statements made in the course of their official duties, as recognized in Jones v. State , 426 S.W.3d 50 (Tenn. 2013), extends to district attorneys general, we determine that the privilege does not apply and accordingly affirm the Commission's judgment.

I. Factual and Procedural Background

The claimant, Detective Floyd Rodney Burns ("Detective Burns"), had been employed with the Gatlinburg Police Department for approximately twenty-five years when the statements at issue in this defamation action were made. Detective Burns served as the lead investigator in the alleged assault and rape of an Ooltewah High School basketball player with a pool cue by teammates during a December 2015 team trip to a tournament in Gatlinburg. In February 2016, Detective Burns testified during a preliminary hearing conducted in the Hamilton County Juvenile Court concerning charges of failure to report child abuse that had been brought against the high school's athletic director and men's basketball coaches by Hamilton County District Attorney General Neal Pinkston ("General Pinkston"). As part of their coverage of the assault and resulting investigation, several media news outlets reported, inter alia , that Detective Burns had testified during the preliminary hearing that the assault did not constitute a rape because the alleged assailants were not seeking sexual gratification. At issue in this action are statements that General Pinkston subsequently made to the news media regarding Detective Burns's testimony.

As demonstrated by a press release emailed from General Pinkston's office to news outlets, General Pinkston issued the following statement to the media on February 17, 2016:

At the request of Hamilton County District Attorney General Neal Pinkston the Tennessee Bureau of Investigation will investigate Gatlinburg Police Department Detective Floyd Rodney Burns for perjurious testimony related to statements he made during sworn testimony in Hamilton County Juvenile Court on Monday, February 15, 2015, regarding the assaults and rapes of four Ooltewah High School freshmen basketball players at a tournament in Sevier County last December.

General Pinkston has instructed me to tell you he will have no further comment until the investigation is completed.

News reports attached to the pleadings in this case demonstrate that General Pinkston's office then issued the following statement on February 18, 2016:

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.

On March 15, 2016, Detective Burns filed a claim alleging "libel (defamation)" in the Division of Claims Administration, asserting that he had been damaged by the widespread publication of General Pinkston's purportedly defamatory statements accusing him of perjury. See Tenn. Code Ann. § 9-8-307(a)(1)(R) (Supp. 2019) (providing the Claims Commission with "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.")¹ Detective Burns requested an award of $300,000 in damages.

Detective Burns attached to his claim two online articles, "Angry D.A. Seeks Perjury Charge Against Gatlinburg Detective," WDEF News (Feb. 17, 2016) and "Gatlinburg detective defends testimony, district attorney responds, claims detective perjured himself," The Chattanooga Times Free Press (Feb. 18, 2016), reflecting the statements at issue made by General Pinkston. In his claim, Detective Burns alleged that "General Pinkston's allegation that [Detective Burns] committed perjury was published in several media outlets including CBS News, the Chattanooga Times Free Press, the Knoxville News Sentinel, the Mountain Press, WTVC, WRCB, WDEF, WTVR, WVLT, and WATE." Detective Burns also attached a printout of a tweet sent online via Twitter by a reporter with Mountain Press , dated February 17, 2016, stating: "Release from their office doesn't specify what part of his testimony they're looking at. No more details to be released at this time."

The Division of Claims Administration transferred the claim to the Commission on June 13, 2016. See Tenn. Code Ann. § 9-8-402(c) (Supp. 2019) ("If the division fails to honor or deny the claim within the ninety-day settlement period, the division shall automatically transfer the claim to the administrative clerk of the claims commission."). The Commission, with Commissioner William O. Shults presiding, entered an order governing the proceedings on June 20, 2016.

Upon transfer to the Commission, Detective Burns filed a complaint, substantively identical to his previous claim, on July 8, 2016. The State responded by filing a motion to stay discovery and a motion to dismiss the complaint, pursuant to Tennessee Rule of Civil Procedure 12.02(6), for failure to state a claim upon which relief could be granted. As pertinent to this appeal, the State contended that General Pinkston had "absolute official privilege for public statements made in his official capacity" and that, in the alternative, he possessed "absolute prosecutorial immunity for statements made regarding the initiation of criminal charges." The State also argued that the statements at issue were not defamatory.

In support of its argument that General Pinkston's statements were protected by an absolute official privilege, the State argued that the Tennessee Supreme Court's holding in Jones v. State , 426 S.W.3d 50 (Tenn. 2013), should be applied to district attorneys general. See Jones , 426 S.W.3d at 58 (holding in a case involving statements made to the media by the Tennessee Department of Correction ("TDOC") Commissioner concerning the demotion of an employee that "cabinet-level executive officials ‘have an absolute privilege to publish defamatory matter concerning another in communications made in the performance of [their] official duties.’ " (quoting Restatement (Second) of Torts § 591 (1977) )). As the State acknowledges, the Jones decision included the following footnote:

This case concerns statements made by TDOC Commissioner Little, who is a cabinet-level official. We do not decide in this case whether the privilege of absolute immunity extends beyond cabinet-level officials.

Jones , 426 S.W.3d at 56 n.7.

Detective Burns filed responses in opposition to the motion to stay discovery and the motion to dismiss, maintaining in the latter that neither absolute privilege nor prosecutorial immunity applied and that the statements at issue were defamatory.

In an order entered August 8, 2016, following a telephonic hearing, the Commission placed the claim in abeyance upon finding that Detective Burns had been charged with perjury in the Hamilton County Criminal Court and that proceeding with discovery in this civil action could potentially compromise Detective Burns's constitutional right against self-incrimination.² Following a subsequent telephonic hearing, the Commission, with Commissioner William A. Young now presiding, entered an order on April 2, 2018, removing the claim from abeyance and allowing Detective Burns to file an amended complaint.

In his amended complaint, Detective Burns averred that the criminal charge of perjury against him had been dismissed. Retaining the earlier allegations lodged in his complaint, Detective Burns also averred that publication of the allegedly defamatory statements had become more widespread and that he had "suffered great damage to his reputation, his active cases [had] been postponed, and he [had] been ridiculed by the public and media outlets." He again requested an award of $300,000 in damages. The State responded by filing a motion to dismiss the amended complaint, pursuant to Tennessee Rule of Civil Procedure 12.02(6), maintaining its arguments that General Pinkston's statements were covered by absolute privilege or, in the alternative, prosecutorial immunity and that the statements were not defamatory.

Following a hearing, the Commission entered an order denying the State's motion to dismiss the amended complaint on August 13, 2018. Noting that additional documents consisting of media reports had been attached as exhibits to both Detective...