The opinion
ROCKY LEE COKER, )
) Davidson Brd. & Tenn. Claims
Claimant/Appellant, ) Commission
) Claim No. 97003162
VS.
DON SUNDQUIST, and the STATE
)
)
)
Appeal No. FILED
01A01-9806-BC-00318
OF TENNESSEE CLAIMS )
October 23, 1998
COMMISSION, )
)
Cecil W. Crowson
Defendants/Appellees. )
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEAL FROM THE TENNESSEE CLAIMS COMMISSION
AT NASHVILLE, TENNESSEE
HONORABLE W. R. BAKER, COMMISSIONER, MIDDLE DIVISION
Rocky Lee Coker, C.P.L.
STSRCF, Unit 6, #108069
Route 4, Box 600
Pikeville, Tennessee 37367
PRO SE/CLAIMANT/APPELLANT
JOHN KNOX WALKUP
Attorney General and Reporter
Ms. Heather C. Ross
Assistant Attorney General
Cordell Hull Building, Second Floor
426 5th Avenue North
Nashville, Tennessee 37243-0499
ATTORNEYS FOR DEFENDANTS/APPELLEES
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
CONCUR IN THE RESULTS:
WILLIAM C. KOCH, JR., JUDGE
ROCKY LEE COKER, )
) Davidson Brd. & Tenn. Claims
Claimant/Appellant, ) Commission
) Claim No. 97003162
VS. )
) Appeal No.
DON SUNDQUIST, and the STATE ) 01A01-9806-BC-00318
OF TENNESSEE CLAIMS )
COMMISSION, )
)
Defendants/Appellees. )
OPINION
The captioned claimant has appealed from the order of the Claims Commission rejecting
the claimant’s claim for failing to state a claim for which relief can be granted.
Claimant’s “Amended Complaint” states:
16. At all times material in this cause, plaintiff was
confined on Unit 2 at Riverbend Maximum Security
Institution (RMSI) in Nashville, Tennessee. Unit 2, RMSI, is
the housing unit for those inmates sentenced to death, and is
a small isolated group of inmates separated from the general
population of inmates.
----
DESCRIPTION OF INCIDENT
Date of Occurrence: On or about 2/10/96 Time: A.M./P.M.
Location: Knoxville/Nashville, TN State Agency involved:
Governor Don Sundquist
1. On or about February 10, 1996, the defendant
Don Sundquist, with malicious intent to injure plaintiff,
published, or caused to be written and published, of and
concerning plaintiff, in a certain newspaper called the
Knoxville News Sentinel, printed and published at its
Nashville Bureau, Davidson County, Tennessee, and
Knoxville, Knox County, Tennessee, as well as throughout
other areas across the State of Tennessee, and having a large
circulation in said County of Davidson, wherein plaintiff then
and there resided, certain false, malicious, and libelous
statements and the words and figures following:
2. Defendant Sundquist, in his statements of and
concerning plaintiff, published, inter alia, that plaintiff had
committed the felonious crimes of mass murder and rape, and
specifically “That [plaintiff] was the guy who committed 14
murders and two rapes on death row,” and that plaintiff
“committed the [m]ost grievous crime[s] imaginable.” A
copy of said publication is attached hereto as Exhibit A.
-2-
No Exhibit A appears in the record before this Court. However, attached to the amended
complaint is an unidentified photostatic document reading as follows:
DISHING OUT CRITICISM
Nashville - “I’m a pussy cat,” Gov. Don Sundquist
says.
That remark came last week when a radio reporter
asked about accusations that he is “mean-spirited” in some of
his dealings in state government.
At the prompting of press secretary Beth Fortune, the
governor responded to one such accusation from some of the
inmates of death row. They accuse the governor of being
“mean spirited” because he took away their satellite dish.
Three inmates and four citizens have filed a federal
lawsuit against the governor and correction officials, claiming
the satellite dish was paid for by donors and that the governor
had no right to remove it.
“That was the guy who committed 14 murders and
two rapes on death row who said I’m mean spirited,”
Sundquist said. “If they think I’m mean-spirited, I would
question the origin of the statement. How can someone who’s
committed the most grievous crimes imaginable - who is
slated to be executed - expect to have television access that
most people in Tennessee don’t have”
“A satellite dish with all the Playboy channels may be
dangerous to their health.”
The dish carried HBO and Cinemax to the prisons at
Nashville’s Riverbend Maximum Security Institution. The
suit was filed by convicted murders Terry King, Rocky Lee
Coker and Michael Sample.
Sunquist also commented on a remark he made while
attending the National Governor’s Association meeting in
Washington, D.C., last week.
Sundquist called Republican presidential candidate
Steve Forbes “goofy.” At the time, the governor was wearing
a large cowboy hat that some might label goofy.
“I probably shouldn’t have said that,” Sundquist said
of the reference to Forbes. “Sometimes you’re brutally
honest, and I’m doing my best to obey the 11th
Commandment to not speak ill of another Republican.
“But sometimes you have to call them like you see
them. I’m going to try to do better.”
----
-3-
17. Defendant’s article in this matter, and attached
to the original claim as Exhibit A, is entitled “Dishing Out
Criticism - Sundquist lashes death row convicts who called
him ‘mean spirited.’ ” The statements in the article were
intentionally made by defendant Sundquist, in a false and
misleading manner, in retaliation for a civil action brought
against him by three inmates names in the article.
18. The statements made by defendant were
therefore made specifically about the small group of inmates
in the article, of which plaintiff was a member, were false,
misleading, and the statements were directed at plaintiff. This
is because plaintiff’s name is explicitly stated in the article,
and plaintiff is one of the three inmates in the small group
who brought the civil action. Any reasonable person reading
the article would know that defendant’s statements were a
direct, malicious and retaliatory act by defendant against the
small group of inmates generally and against plaintiff
particularly.
The Order of the Commission states:
The main reason why this Commission finds this to be
a claim on which relief cannot be granted is that the
newspaper article in question is not libelous or injurious at all.
Any body who reads that newspaper article gets the message:
men who have been sentenced to death in a Tennessee Court
deserve to be deprived of entertainment, and when such men
use language like “mean spirited” and go to Court to get their
entertainment back then they are being ridiculous. Anybody
who reads that newspaper article recognizes that the
quotation, “That was the guy who committed 14 murders and
two rapes on death row who said I’m mean spirited,” was an
exaggeration, just a piece of mockery; anybody who reads that
newspaper sees that this statement is not statistically precise.
All human-beings --not just holders of high offices and
newspaperwomen-- use exaggeration sometimes. People may
say that men sentenced to death by Tennessee juries have
“committed the most grievous crimes imaginable,” while they
know that only people like Mao Tse-Tung and Pol Pot really
have “committed the most grievous crimes imaginable.” We
all talk like that sometimes, and talking like that is not slander
or libel. And there is a very good reason why it is not slander
or libel: because nobody who hears it takes it with nit-picking
precision. Take the case of the mother who says to her child,
“You’re just the worst little boy I’ve ever seen!” Nobody
would say to her seriously, “You’re a liar! You’ve seen two
little boys this morning who are worse than he is!” This
claimant is arguing that mockery is libel, and it is not.
----
The State’s motion to dismiss is granted. The
complaint, as amended, is dismissed.
-4-
On appeal, the claimant presents the following issues;
I. Whether the Claims Commission erred in
dismissing Plaintiff’s complaint for libel and group libel, and
erroneously found that Defendant Sundquist’s statements in
the article about Plaintiff were not libelous or injurious at all?
II. Whether the Claims Commission erred in
dismissing Plaintiff’s complaint, thereby failing to consider
Plaintiff’s claims of infliction of humiliation and emotional
distress, and false light invasion of privacy?
Prior to consideration of appellant’s issues, it must be recognized that this is a claim
against the state and not a lawsuit against a newspaper or the person whose alleged oral remarks
were allegedly published by the newspaper.
T.C.A. § 9-8-112 provides in pertinent part as follows:
Final judgments against state employees. - (a) The
board of claims is authorized to pay final judgments for state
employees, as defined in § 8-42-101, for any damages,
including interest thereon, which are awarded in a final
judgment in a civil lawsuit against the employee in a court of
competent jurisdiction where it is determined by the board
that the incident on which such damages were awarded
occurred when the employee was acting in good faith within
the scope of such employee’s official duty and under apparent
lawful authority or orders.
(1) No final judgment or interest thereon shall be
paid where the employee’s conduct amounted to gross
negligence or willful, intentional or malicious conduct.
The Claim does not allege a final judgment against the originator or the publisher of the
allegedly defamatory statements. Moreover, the Claim states that the accused state employee
acted “with reckless disregard, intentional, reckless and malicious, with improper motives and
malice with intent to cause shock, mental suffering and severe emotional distress, humiliation,
anxiety pain and suffering, and depression.”
First Issue: Finding that alleged statements were not libelous or injurious.
-5-
The claim asserts that the claimant is a prisoner incarcerated on “Death Row.” This is
an admission that claimant is the subject of a final judgment of conviction of murder in the first
degree.
Under the circumstances of this case, the appellant is “libel-proof; that is, as a matter of
law would suffer no damages to his reputation by the words alleged to have been spoken.
Cardillo v. Doubleday, 2nd Cir. 1975; 518 F.2d 638; Ray v. Time, Inc., (W.D. Tenn. 1976), 452
F.Supp. 618.
The claim fails to state an actionable wrong for the reason that it states that the alleged
defamation referred to a group of three of which claimant is a member and the claim does not
allege that the claimant himself was named in the alleged defamatory statement.
The gravamen of an action for defamation is injury to the reputation of the plaintiff - not
injury to his self esteem, emotions or mental state.
Character is:
The predisposition or habit, or aggregate of ethical qualities
which belong to and distinguish an individual person; the
general result of the one’s distinguishing attributes.
----
That moral predisposition or habit or aggregate of ethical
qualities, which is believed attached to a person on the
strength of the common opinion and report concerning him.
----
Although “character” is often used in the sense of
“reputation”, the terms are distinguishable.
----
“Character” is what a man is, and reputation is what he is
supposed to be. “Character” depends on attributes possessed,
and reputation on attributes which others believe one to
possess.
Black’s Law Dictionary, Fourth Edition, p. 294.
-6-
The words, character and reputation have been used interchangeably because where
character is relevant, it is proved by a “character witness” whose testimony must be confined to
reputation. Thus, “character” must be proven by reputation and not by acts.
In Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., et al, the appeal was from
the dismissal of the suit of an employee of Bluff City against his employer for slander by
accusing him of falsifying records. The Supreme Court dismissed the slander action as time-
barred and said:
The basis of an action for defamation, whether it be
for slander or libel, is the defamation resulted in an injury to
the person’s character and reputation.
Clearly, the words “character and reputation” were intended to mean “reputation in
respect to character, for character may be shown only by reputation.
In Little Stores v. Isenberg, the plaintiff obtained a jury verdict for damages from a false
allegation of shoplifting. This Court affirmed and said:
The “character” of an accused means his fixed
disposition or tendency, as shown by his habits, through the
manifestation of which his general reputation, good or
otherwise, is obtained. Keith v. State, 127 Tenn. 40, 152 S.W.
1029 (1913).
The claim shows on its face that the claimant is a convicted murderer worthy of death.
Therefore, neither his reputation nor his character could be impaired by the language allegedly
spoken and published.
This Court concludes that the State is not liable to a convicted murderer, for his character
is judicially declared to be evil, and, as a result, his reputation is that of a murderer.
For the foregoing reasons, the claim fails to state grounds for recovery.
-7-
Second Issue: Humiliation, emotional distress, invasion of privacy.
These elements of damage may apply if a valid right of action for defamation is shown.
However, the claim does not allege an actionable case of defamation without which there can
be no recovery for humiliation, emotional distress or invasion of privacy.
No merit is found in appellant’s second issue.
This opinion is not authority for the principle that prison inmates may not resort to the
Courts to redress libels committed against them in or out of prison. See Cardillo, above.
The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the
appellant. The cause is remanded to the Trial Court for necessary further proceedings.
AFFIRMED AND REMANDED.
_________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR
____________________________:
BEN H. CANTRELL, JUDGE
CONCUR IN RESULTS:
____________________________
WILLIAM C. KOCH, JR., JUDGE
-8-