Durham v. Martin, Case No. 3:17-cv-01172

• Decision Date: 14 May 2019
• Docket Number: Case No. 3:17-cv-01172
• Citation: 388 F.Supp.3d 919
• Parties: Jeremy R. DURHAM, Plaintiff, v. Larry MARTIN, in his official capacity, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

388 F.Supp.3d 919

Jeremy R. DURHAM, Plaintiff,

v.Larry MARTIN, in his official capacity, et al., Defendants.

Case No. 3:17-cv-01172

United States District Court, M.D. Tennessee, Nashville Division.

Filed May 14, 2019

Amy Rao Mohan, Eric G. Osborne, Michael G. Abelow, William L. Harbison, Sherrard Roe Voight & Harbison, James F. Sanders, William J. Harbison, II, Neal & Harwell, PLC, Nashville, TN, for Plaintiff.

Janet M. Kleinfelter, Leslie Ann Bridges, Tennessee Attorney General's Office, Katherine Dix, Federal Public Defender's Office (MDTN), Nashville, TN, for Defendants.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Before the court is the defendants' Motion to Dismiss (Doc. No. 35) Jeremy R. Durham's Amended Complaint for Declaratory and Injunctive Relief (Doc. No. 33). For the reasons set forth herein, the motion will be granted in part and denied in part.

I. Factual and Procedural Background

Plaintiff Jeremy Durham was elected to the 108th General Assembly of the Tennessee House of Representatives in November 2012 and again in November 2014, for the 109th General Assembly, where he served until his expulsion on September 13, 2016. (Am. Compl., Doc. No. 33 ¶¶ 6, 34.) As a result of the expulsion, Durham was removed from the House membership roll before the end of the 109th General Assembly. (Id. ¶ 6.) He was later informed by the defendants that his expulsion resulted in the termination of certain state benefits in which he claims he had a vested interest. This lawsuit stems from the expulsion and ensuing events, in particular the denial of the state benefits. Durham asserts that his expulsion violated Article 1, Section 10 of the United States Constitution, which prohibits bills of attainder, and his right to due process under the Fourteenth Amendment. He also claims it was in violation of state law. He alleges that the unauthorized expulsion and bill of attainder led to further constitutional deprivations when his benefits were terminated. He brings suit to vindicate the federal constitutional violations under 42 U.S.C. § 1983, seeking his reinstatement on the membership roll of the 109th General Assembly and reinstatement of his state benefits.

As set forth in the Amended Complaint, the Tennessee Attorney General's Office issued a report in July 2016 on Durham's alleged "disorderly conduct" while in office. (Doc. No. 33 ¶ 35.)¹ Shortly thereafter, Representative Mike Stewart called for a special session vote to expel Durham.

The stated purpose of the session was to ensure that Durham's lifetime pension would not vest in November. (Id. ) House Majority Leader Gerald McCormick sponsored a petition in support of the special session. (Id. ¶ 38.) Only twenty-seven representatives signed the petition, as a result of which the call for a special legislative session failed. (Id. ) House Republican Caucus Chair Glen Casada and Representative Joe Armstrong circulated a second petition to call a special legislative session to oust Durham. That petition failed as well. (Id. ¶ 40.)

On July 14, 2016, Durham announced at a press conference that he had withdrawn from the GOP primary for his seat in the upcoming term. On August 4, 2016, Sam Whitson won the GOP primary in Durham's district, thus ensuring that Durham would not be re-elected to serve a third term in the General Assembly. (Id. ¶ 42.) As of that date, there was no plan for the House of Representatives to convene again until after the election of the next General Assembly. Durham's service in the House was over, and he had "effectively retired from the legislature." (Id. ¶ 43.)

However, on September 2, 2016, then-Governor Bill Haslam issued a proclamation to convene the Tennessee General Assembly for a special session. As set forth in the proclamation, the purpose of the special session was to "[c]onsider[ ] and act[ ] upon legislation necessary to ensure that Tennessee law prohibiting an individual under the age of 21 from operating a motor vehicle while intoxicated or under the influence of alcohol maintains compliance with 23 U.S.C. § 161" and, generally, to ensure compliance with federal law relating to federal-aid highway funding, in order for the State to avoid losing up to $60 million in federal highway funds. (Doc. No. 33 ¶¶ 10, 44; Proclamation, Doc. No. 33-1.)

The special legislative session was authorized by Article III, Section 9 of the Tennessee Constitution. (Doc. No. 33 ¶ 9.) That provision specifically empowers the governor, "on extraordinary occasions, [to] convene the General Assembly by proclamation, in which he shall state specifically the purposes for which they are to convene." Tenn. Const. art. III, § 9. On such occasions, the General Assembly "shall enter on no legislative business except that for which they were specifically called together." Id. In a press release dated September 2, 2016, Governor Haslam confirmed that an effort to expel Durham was not on the agenda for the special session. (Doc. No. 33 ¶¶ 11, 45.)

Nonetheless, on September 12, 2016, the first day of the special session, which Durham did not attend, Representative Susan Lynn gave notice that she intended to make a motion the next day to expel Durham from the House for "disorderly behavior." (Id. ¶¶ 14, 48.) Durham, notified by media reports about Lynn's announcement, attended the special session the following morning. (Id. ¶ 52.) That morning, as the House reconvened for the special session to deal with federal highway funds, Lynn introduced her motion and "debate ensued." (Id. ¶ 53.) Durham spoke on his own behalf, arguing that the action was unconstitutional and that he had not been accorded due process. (Id. ¶ 54.) The Tennessee House of Representatives nonetheless voted on the motion and approved it by a margin of seventy votes in favor of expulsion to two against. Durham was not present for the vote. (Id. ¶ 56.) Durham was immediately expelled from the House of Representatives and his name was removed from the House membership roll. (Id. ¶¶ 16, 57.) Durham maintains that his expulsion violated state and federal law.

Shortly after his expulsion from the legislature, Durham inquired about the status of his state health insurance coverage. He was informed that, as a result of the vote to expel him on September 13, his insurance coverage as an active state employee would terminate on September 30, 2016, after which date he would be eligible for COBRA coverage. (Id. ¶¶ 18, 60–61; Doc. No. 33-2.) An email attached to the Amended Complaint, from Angie Gargara, Benefits Administration, to Tammy Rather, which the plaintiff claims was forwarded to him, states:

The question of whether former Representative Durham is entitled to lifetime coverage as a retiree was decided by Commissioner Martin after consultation with the Attorney General's office. It is the Department's decision that expulsion from the General Assembly does not constitute "retirement" that the law requires for lifetime coverage, so Representative Durham is not entitled to that benefit. The Attorney General interpreted "retirement" to exclude expulsion in Attorney General Opinion 80-147.

(Doc. No. 33-2.)

In addition to the loss of his healthcare benefit, Durham claims that, "[a]s a direct and proximate result of his improper and unauthorized expulsion," he lost his state "pension and has been so informed by the State's Benefits Administration Division." (Doc. No. 33 ¶ 19.)

Based on these factual allegations, Durham originally filed suit in this court on August 21, 2017, naming as defendants Larry Martin, in his official capacity as Tennessee Commissioner of Finance and Administration; Connie Ridley, in her official capacity as Director of Legislative Administration; and David H. Lillard, Jr., in his official capacity as Treasurer of the State of Tennessee. The original Complaint asserted a single "Count": that the plaintiff had a protected property interest in his state benefits and was denied due process through the deprivation of these benefits, based on his ultra vires expulsion from the House of Representatives. (Doc. No. 1.)

This court, construing the original Complaint as asserting a claim based on the plaintiff's unlawful expulsion from the legislature, dismissed the Complaint for lack of standing, as the named defendants did not participate in that action. The Sixth Circuit reversed and remanded, finding that the plaintiff Durham had standing to sue the administrators named as defendants, because the injuries he seeks to remedy are fairly traceable to the administrators' conduct, as he adequately alleged that he is not receiving benefits that the defendant administrators should pay. Durham v. Martin , 905 F.3d 432, 433 (6th Cir. 2018).

Following remand, the plaintiff was granted leave to amend his Complaint. In the Amended Complaint, he names four new defendants: Joe McCord, in his official capacity as the former Chief Clerk of the Tennessee House of Representatives; Victor Thompson, in his official capacity as the former Chief Sergent-At-Arms of the Tennessee House of Representatives; Tammy Letzler, in her official capacity as the current Chief Clerk of the Tennessee House of Representatives; and William C. Howse, in his official capacity as the current Sergent-At-Arms of the Tennessee House of Representatives.² (Doc. No. 33.)

The Amended Complaint includes a new cause of action as well. In Count I, Durham claims that his expulsion by the House of Representatives constituted a legislative action that punished him by taking away his vested health insurance and pension benefits without a judicial trial. He asserts that, as such, the action constituted a bill of attainder, which is expressly barred by Article I, Section 10 of the United States Constitution. He claims that the "defendants"—without identifying which of them—deprived him of his constitutional right to not have a bill of attainder passed against him, a violation he seeks to vindicate under 42 U.S.C. § 1983. (Doc. No. 33 ¶¶ 62–72.)

In Count...