Floyd Rodney Burns v. State of Tennessee

11/26/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 20, 2019 Session

FLOYD RODNEY BURNS v. STATE OF TENNESSEE

Interlocutory Appeal from the Tennessee Claims Commission

No. T20161418 William A. Young, Commissioner

No. E2018-02174-COA-R9-CV

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.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Claims Commission

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.

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.

OPINION

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

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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

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“Libel and slander are both forms of defamation; libel being written defamation and slander being

spoken defamation.” Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001).

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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

2

The summons issued upon Detective Burns in the criminal court, attached in this record to the State’s

motion to dismiss, charged Detective Burns with making two statements while under oath in the juvenile

court preliminary hearing that purportedly conflicted with statements made in the police reports he had

prepared concerning the incident involving the Ooltewah basketball players.

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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 Burns’s

amended complaint and the State’s motion to dismiss, the Commission found that the

exhibits did not convert the motion to dismiss to a motion for summary judgment. As

relevant to the issue on interlocutory appeal, the Commission found that it could not

extend the absolute privilege afforded to “high-ranking State executive officials” acting

within the scope of their official duties (“Executive Official Privilege”) to district

attorneys general. The Commission also ruled that at the motion-to-dismiss stage, it

could not conclude that prosecutorial immunity applied to this situation or that the

statements at issue could not be found to be defamatory.

On September 12, 2018, the State filed a motion for permission to file an

interlocutory appeal, pursuant to Tennessee Rule of Appellate Procedure 9, to which

Detective Burns did not file a response. The Commission entered an order granting

permission for interlocutory appeal on November 21, 2018, certifying the following two

issues upon which the State had requested review:

1. Whether the absolute privilege (absolute official privilege) afforded

to State officials made in the course of their official duties extends to

district attorneys general.

2. Whether the absolute immunity afforded to district attorneys general

for actions taken as part of their prosecutorial function extends to

statements made to the media regarding pending criminal cases.

As to the second issue concerning prosecutorial immunity, the State in its motion for

interlocutory appeal before this Court stated that it “no longer seeks immediate review of

this question.” This Court entered an order granting interlocutory review on January 28,

2019, narrowing the “only issue on appeal” to the first issue above.

II. Issue Presented

Pursuant to Tennessee Rule of Appellate Procedure 9, “we are limited on appeal to

the questions certified by the trial court in its order granting permission to seek an

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interlocutory appeal and in this Court’s order granting the appeal.” In re

Bridgestone/Firestone & Ford Motor Co. Litig., 286 S.W.3d 898, 902 (Tenn. Ct. App.

2008) (citing Tenn. R. App. P. 9). Inasmuch as the State had withdrawn the second of the

two issues certified for interlocutory appeal by the Commission, this Court directed in its

order granting interlocutory appeal that the sole issue on appeal would be as follows:

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.

III. Standard of Review

The issue raised in this interlocutory appeal is a question of law. We review

questions of law de novo with no presumption of correctness. See Cunningham v.

Williamson Cty. Hosp. Dist., 405 S.W.3d 41, 43 (Tenn. 2013) (citing Mills v. Fulmarque,

Inc., 360 S.W.3d 362, 366 (Tenn. 2012)).

We note that the Commission decided in this case to proceed with the State’s

motion as a Rule 12.02(6) motion to dismiss the amended complaint despite the State’s

attachment of several exhibits to both its motion to dismiss the initial complaint and its

motion to dismiss the amended complaint. Generally, “[i]f matters outside the pleadings

are presented in conjunction with either a Rule 12.02(6) motion [to dismiss] or a Rule

12.03 motion [for judgment on the pleadings] and the trial court does not exclude those

matters, the court must treat such motions as motions for summary judgment and dispose

of them as provided in Rule 56.” Patton v. Estate of Upchurch, 242 S.W.3d 781, 786

(Tenn. Ct. App. 2007).

In determining that it was not necessary to convert the State’s motion to dismiss to

a motion for summary judgment, the Commission specifically found:

As all of these exhibits [attached to the State’s motion to dismiss] are either

attached as exhibits to the amended complaint or referred to in the amended

complaint, these exhibits, and the consideration of them by the undersigned

in conjunction with the motion to dismiss, do not convert the [State’s]

motion to dismiss to a motion for summary judgment.

Upon review, we determine that the Commission properly considered the items noted and

that such consideration did not necessitate converting the motion to dismiss to a motion

for summary judgment. See W. Express, Inc. v. Brentwood Servs., Inc., No. M2008-

02227-COA-R3-CV, 2009 WL 3448747, at *3 (Tenn. Ct. App. Oct. 26, 2009)

(delineating exceptions to the general rule, including “matters incorporated by reference

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or integral to the claim, items subject to judicial notice, matters of public record, orders,

items appearing in the record of the case, and exhibits attached to the complaint whose

authenticity is unquestioned” (quoting Ind. State Dist. Council of Laborers v. Brukardt,

No. M2007-02271-COA-R3-CV, 2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19,

2009))).

As our Supreme Court has explained with regard to motions seeking dismissal of a

complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6):

A Rule 12.02(6) motion challenges only the legal sufficiency of the

complaint, not the strength of the plaintiff’s proof or evidence. The

resolution of a 12.02(6) motion to dismiss is determined by an examination

of the pleadings alone. A defendant who files a motion to dismiss “‘admits

the truth of all of the relevant and material allegations contained in the

complaint, but . . . asserts that the allegations fail to establish a cause of

action.’”

In considering a motion to dismiss, courts “‘must construe the

complaint liberally, presuming all factual allegations to be true and giving

the plaintiff the benefit of all reasonable inferences.’” A trial court should

grant a motion to dismiss “only when it appears that the plaintiff can prove

no set of facts in support of the claim that would entitle the plaintiff to

relief.” We review the trial court’s legal conclusions regarding the

adequacy of the complaint de novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)

(internal citations omitted).

IV. Executive Official Privilege

On the certified question before us, the State contends that General Pinkston, as a

district attorney general, should be afforded absolute immunity against defamation for the

statements he makes while performing his duties as a state official. While

acknowledging that our Supreme Court’s holding in Jones extends this absolute privilege

only to “cabinet-level executive officials,” see Jones, 426 S.W.3d at 58, the State relies

on the Jones holding to argue that this Court should extend the Executive Official

Privilege to state district attorneys general acting in the performance of their official

duties. Detective Burns contends that the Commission properly determined that the

Executive Official Privilege in Tennessee does not extend to district attorneys general.

As the Commission noted and the parties acknowledge, this question, as it is specific to

district attorneys general, is a matter of first impression in Tennessee. Upon careful

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review of the applicable authorities, as well as the record in this case, we hold that the

Executive Official Privilege does not extend to district attorneys general in Tennessee.

As our Supreme Court has explained concerning defamation claims generally:

To establish a prima facie case of defamation in Tennessee, the

plaintiff must establish that: 1) a party published a statement; 2) with

knowledge that the statement is false and defaming to the other; or 3) with

reckless disregard for the truth of the statement or with negligence in failing

to ascertain the truth of the statement. See Restatement (Second) of Torts §

580 B (1977); Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978).

“Publication” is a term of art meaning the communication of defamatory

matter to a third person. Quality Auto Parts Co. v. Bluff City Buick Co.,

876 S.W.2d 818, 821 (Tenn. 1994).

Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571-72 (Tenn. 1999).

However, “[t]here are two types of privileges that can be raised as a defense in a

defamation case, absolute and qualified.” Simpson Strong-Tie Co. v. Stewart, Estes &

Donnell, 232 S.W.3d 18, 22 (Tenn. 2007). The Executive Official Privilege, at issue

here, is absolute, meaning that it is “a total immunity granted on the basis of the speaker’s

position or status.” See Jones, 426 S.W.3d at 53 (quoting Robert D. Sack, Sack on

Defamation: Libel, Slander and Related Problems § 8.1 (4th ed. 2012)). An absolute

privilege “is not defeated by the defendant’s malice, ill-will, or improper purpose in

publishing the defamatory communication.” Simpson Strong-Tie, 232 S.W.3d at 22

(contrasting an absolute privilege with a qualified or conditional privilege, which “may

be defeated if the defamatory publication was made with malice, ill-will, or for an

improper purpose”) (footnote omitted).

Our Supreme Court recently described the rationale for the development of

privileges providing defenses to defamation as follows in relevant part:

This appeal demonstrates the tension that exists between two

competing social commodities: reputation and information. Protecting the

first commodity are defamation lawsuits, which enable aggrieved

individuals to seek redress from false statements of fact that impugn their

reputations. In the 1966 case Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S. Ct.

669, 15 L. Ed. 2d 597 (1966) (Stewart, J., concurring), former United States

Supreme Court Justice Potter Stewart emphasized the importance of

protecting individuals from reputational harm, noting that: “The right of a

man to the protection of his own reputation from unjustified invasion and

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wrongful hurt reflects no more than our basic concept of the essential

dignity and worth of every human being—a concept at the root of any

decent system of ordered liberty.” The danger posed by defamation

lawsuits is that, if unrestrained, these lawsuits may obstruct access to the

second commodity, information. For this reason, courts have developed a

variety of privileges that provide defenses to defamation claims even when

the accused actually defamed the accuser. See generally Restatement

(Second) of Torts §§ 583-612 (1977).

Funk v. Scripps Media, Inc., 570 S.W.3d 205, 211 (Tenn. 2019) (proceeding to analyze

application of the fair report privilege as a qualified privilege).

In establishing, as a matter of first impression in Tennessee at the time, the

Executive Official Privilege, our Supreme Court stated the following in relevant part:

In Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434

(1959), the U.S. Supreme Court adopted an absolute privilege for federal

executive officials who publish defamatory statements in the performance

of their official duties. In a plurality opinion, Justice John Marshall Harlan

expressed the following rationale:

It has been thought important that officials of government

should be free to exercise their duties unembarrassed by the

fear of damage suits in respect of acts done in the course of

those duties—suits which would consume time and energies

which would otherwise be devoted to governmental service

and the threat of which might appreciably inhibit the fearless,

vigorous, and effective administration of policies of

government.

Id. at 571, 79 S. Ct. 1335. Justice Harlan further explained that the

invocation of the absolute privilege represented “an expression of a policy

designed to aid in the effective functioning of government.” Id. at 572-73,

79 S. Ct. 1335.

In Barr, the Court held that absolute privilege applied to the acting

director of a federal agency who had issued a press release about former

employees of the agency. The former employees contended that the

director’s press release contained defamatory statements. However, the

Supreme Court ruled that the director was protected by absolute privilege

when he issued the press release and dismissed the employees’ claims,

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reasoning that communicating with the media by disseminating the press

release “was an appropriate exercise of the discretion which an officer of

that rank must possess if the public service is to function effectively.” Id. at

575, 79 S. Ct. 1335. The Barr Court acknowledged that conferring an

absolute privilege may lead to “occasional instances of actual injustice,” but

reasoned that such a price is “a necessary one to pay for the greater good.”

Id. at 576, 79 S. Ct. 1335. Previously, in Gregoire v. Biddle, Judge Learned

Hand offered a similar rationale for adopting absolute immunity for

government officials in the context of an allegedly unlawful arrest,

explaining that:

The justification for doing so is that it is impossible to know

whether the claim is well founded until the case has been

tried, and that to submit all officials, the innocent as well as

the guilty, to the burden of a trial and to the inevitable danger

of its outcome, would dampen the ardor of all but the most

resolute, or the most irresponsible, in the unflinching

discharge of their duties.

177 F.2d 579, 581 (2d Cir. 1949).

Immunizing government officials against harassment and giving

them the ability to perform their jobs “in the unflinching discharge of their

duties,” however, is not the only rationale that supports adopting an

absolute privilege against defamation for cabinet-level state executive

officials. Id. In his separate concurring opinion in Barr, Justice Hugo

Black explained that adopting an absolute privilege advanced significant

First Amendment free speech interests. “The effective functioning of a free

government like ours depends largely on the force of an informed public

opinion,” Justice Black explained. Barr, 360 U.S. at 577, 79 S. Ct. 1335

(Black, J., concurring). “This calls for the widest possible understanding of

the quality of government service rendered by all elective or appointed

public officials or employees.” Id. We agree that the public has a vital

interest in receiving information from public officials about the effective, or

ineffective, functioning and performance of the government.

Consistent with the Supreme Court’s holding in Barr, the

Restatement (Second) of Torts provides for an absolute privilege against

defamation claims for high-ranking federal and state executive officials.

See Restatement (Second) of Torts § 591 (1977) (“An absolute privilege to

publish defamatory matter concerning another in communications made in

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the performance of his official duties exists for (a) any executive or

administrative officer of the United States; or (b) a governor or other

superior executive officer of a state.”). Comment c to Section 591 further

explains that “the absolute privilege stated in Clause (b) protects the

superior officers of the state governments, including at least the governor,

the attorney-general or the heads of state departments whose rank is the

equivalent of cabinet rank in the Federal Government.” Id. cmt. c.

“Like their federal counterparts, high-ranking elected state officials

and other officials of cabinet level or equivalent rank are generally held

entitled to an absolute privilege as to their defamatory communications

while exercising discretionary functions.” David Elder, Defamation: A

Lawyer’s Guide § 2:14 (2003). Many states have adopted the Restatement

(Second) of Torts’ absolute privilege against defamation claims for certain

executive officials. In Johnson v. Dirkswager, for example, the Minnesota

Supreme Court held that a state-level commissioner who allegedly uttered

defamatory comments to the public about an employee through a press

release was entitled to an absolute privilege. 315 N.W.2d 215 (Minn.

1982). Weighing the “public’s right to know [against] a defamed

individual’s right to redress,” the Minnesota Supreme Court ultimately

concluded that “the balance is to be struck in favor of the public’s right to

know” because the state employee’s interest must “yield[ ] to the needs of a

free, democratic society to be apprised of the conduct of the public business

by its public officials.” Id. at 221, 223. In Hackworth v. Larson, the

Supreme Court of South Dakota had reached an identical holding in a case

involving the South Dakota Secretary of State, who had issued press

releases stating that she had fired two employees. 83 S.D. 674, 165

N.W.2d 705 (1969). As the Hackworth court explained: “It is thought

desirable to encourage free and uninhibited dissemination of information

about governmental activities even if on occasions an individual suffers

harm thereby.” Id. at 709, 165 N.W.2d 705.

More recently, in Salazar v. Morales, the Texas Court of Appeals

adopted the absolute privilege reflected by the Restatement (Second) of

Torts as applied to the Texas Attorney General. 900 S.W.2d 929 (Tex.

App. 1995). Salazar involved a defamation claim asserted against the

Texas Attorney General regarding comments that he had made to the press

about a former employee’s termination. In affirming the Texas Attorney

General’s motion to dismiss, the Texas Court of Appeals determined that

the Texas Attorney General “ha[d] an absolute privilege to publish

defamatory statements in communications made in the performance of his

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official duties.” Id. at 932. The Salazar court also observed that: “All of

the state courts that have addressed the issue have agreed that an absolute

privilege . . . applies to state attorneys general.” Id., citing Kilgore v.

Younger, 30 Cal. 3d 770, 180 Cal. Rptr. 657, 640 P.2d 793, 797-98 (1982);

Little v. Spaeth, 394 N.W.2d 700, 706 (N.D. 1986); Matson v. Margiotti,

371 Pa. 188, 88 A.2d 892, 896 (1952); Levinsky v. Diamond, 151 Vt. 178,

559 A.2d 1073, 1078 (1989); Gold Seal Chinchillas, Inc. v. State, 69 Wash.

2d 828, 420 P.2d 698, 701 (1966); Morton v. Hartigan, 145 Ill. App. 3d

417, 99 Ill. Dec. 424, 495 N.E.2d 1159, 1164-65 (1986).

While the common law doctrine of absolute immunity remains the

majority rule, we note that other states afford executive officials only a

qualified privilege for statements made in the course of their official duties.

See [Robert D. Sack,] Sack [on Defamation: Libel, Slander and Related

Problems] § 8.2.5 [(4th ed. 2012)] (“A few states deny absolute immunity

to public officials altogether and grant a qualified privilege for statements

made in the course of official duties.”). The Hawaii Supreme Court, for

example, has rejected the application of an absolute privilege to state

officials, instead holding that such officials are entitled to a qualified

privilege. Towse v. Hawaii, 64 Haw. 624, 647 P.2d 696, 701-02 (1982).

Similarly, in Chamberlain v. Mathis, the Arizona Supreme Court adopted a

qualified privilege for the Director of the Arizona Department of Health

Services, reasoning in that case that the rationale supporting absolute

immunity is “countered by basic principles of equal justice.” 151 Ariz.

551, 729 P.2d 905, 912 (1986).

We note that “the overwhelming majority of cases have struck the

balance in favor of encouraging public officials to speak with complete

candor—and without fear of legal recourse—with respect to their official

duties.” Gold Seal, 420 P.2d at 701. Pennsylvania, for example, reaffirmed

the common law’s absolute privilege against defamation for all “high

public officials.” See Lindner v. Mollan, 544 Pa. 487, 677 A.2d 1194, 1196

(1996) (“This Court has never called into question, much less overruled, the

common law doctrine of absolute privilege for high public officials.”). We

agree with this longstanding majority rule. Accordingly, we adopt the

position taken by the Restatement (Second) of Torts that cabinet-level

executive officers are entitled to an absolute privilege from defamation

claims arising out of comments made within the scope of their official

duties. Restatement (Second) of Torts § 591.

Jones, 426 S.W.3d at 53-56 (underlined emphasis added).

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In finding that the Executive Official Privilege did not apply to General Pinkston

as a district attorney general, the Commission considered, inter alia, the Tennessee

Supreme Court’s holding in Jones and stated in pertinent part:

Having very carefully considered the Jones case, with the

understanding that our Supreme Court has articulated the application of

absolute privilege to “high-ranking state executive officials,” and

considering the rationale set forth by [the State’s] counsel herein, and the

counterarguments made by [Detective Burns’s] counsel, the undersigned

does not perceive that he has the authority to conclude that our High

Court’s holding in Jones would extend to a person in the position of district

attorney general. While understanding and very much appreciating the hard

work, tireless dedication and vigorous advocacy by district attorneys

general across the State to protect our citizenry from crime, and while

recognizing the important public policy considerations advocated by [the

State], the Commission is thus far unconvinced that the categorization our

Supreme Court intended or would intend for the term “high-ranking State

executive officials” would embrace the position of district attorney general.

The Commission has considered the statutory duties of district attorneys

general as set forth in Tenn. Code Ann. § 8-7-103. Clearly, those duties

include the very important role of prosecution of crime, but the enumerated

duties appear to be absent responsibilities which would fall into the realm

of those responsibilities attributed to “high-ranking State executive

officials.” As but one example, the duties do not appear to include

establishment and enforcement of policies which would be applicable to the

State as a whole. It is for these reasons that the Commission respectfully

overrules that portion of the [State’s] motion which is based upon the claim

of absolute privilege.

The Commission thereby focused on whether the position of district attorney

general fit within the parameters of the privilege, which was designated in the Jones

holding as applying to “cabinet-level executive officials.” See Jones, 426 S.W.3d at 51,

56, 58. In its order, the Commission utilized the phrase, “high-ranking State executive

officials.” The term, “high-ranking” was employed by the Jones Court in further

explanation of its holding concerning cabinet-level officials. See id. at 58 (“This

privilege ensures that high-ranking state executive officials will enjoy ‘complete freedom

of speech when discharging their duties.’” (quoting Robert D. Sack, Sack on Defamation:

Libel, Slander and Related Problems § 8.2 (4th ed. 2012))). In Jones, our Supreme Court

adopted the position taken in § 591 of the Restatement (Second) of Torts (1977), which

provides:

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An absolute privilege to publish defamatory matter concerning another in

communications made in the performance of his official duties exists for

(a) any executive or administrative officer of the United States; or

(b) a governor or other superior executive officer of a state.

We note that in the area of identifying privileges that may be employed in defense

of a defamation claim, the Tennessee Supreme Court again adopted the position of the

Restatement (Second) of Torts in a recent decision by adopting the “modern version” of

the fair report privilege set forth in the Restatement. See Funk, 570 S.W.3d at 217 (“[I]n

keeping with our earlier decisions concerning defamation law, we adopt the approach of

the Restatement (Second) of Torts section 611.”) (citing Jones, 426 S.W.3d at 56 (for the

Court’s adoption of § 591 “as governing the executive and administrative officers’

privilege”); Simpson Strong-Tie, 232 S.W.3d at 22-24 (for the Court’s adoption of § 586

“as governing the attorneys’ privilege”). In keeping with our High Court’s approval to

date of the Restatement (Second) of Torts as it applies to this area of the law, we examine

the position taken in the Restatement as to district attorneys general.

Concerning the Executive Official Privilege set forth in § 591(b), the Restatement

explains in an official comment to the section:

c. All of the state courts that have considered the question have agreed

that the absolute privilege stated in Clause (b) protects the superior

officers of the state governments, including at least the governor, the

attorney-general or the heads of state departments whose rank is the

equivalent of cabinet rank in the Federal Government. A good

number of the States have gone further, and have extended the

absolute privilege to state officers of various ranks below that of

cabinet level. The greater number of the state courts have not made

the extension to the point of the federal rule and some have

expressly confined the absolute privilege to superior officers of the

States. This leaves the inferior state officers in these States with

only a conditional privilege, as stated in § 598A.

The Restatement thus notes that in a majority of state jurisdictions, state officers who are

not at cabinet or high-ranking level are entitled to the defense of a conditional privilege

but not an absolute privilege. Section § 598A of the Restatement provides:

An occasion makes a publication conditionally privileged if an inferior

administrative officer of a state or any of its subdivisions who is not

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entitled to an absolute privilege makes a defamatory communication

required or permitted in the performance of his official duties.

In its illustrations to § 591, the Restatement specifically addresses the situation of a state

attorney general versus district attorneys general:

3. A, the Attorney-General of State X, issues a press release explaining

the delay of his office in prosecuting certain offenses against the

State, in the course of which he accuses B of suppressing evidence

that might lead to a conviction. A is absolutely privileged, and is not

liable to B.

4. The same facts as in Illustration 3, except that A is not Attorney-

General, but is a local district attorney. A has only a conditional

privilege, as stated in § 598A, even if it is found that the press

release is within the scope of his official duties.

In support of its position in this case, the State correctly tracks our Supreme

Court’s adoption of the Restatement (Second) of Torts in this area and the distinction

made in the Restatement between an absolute privilege for state attorneys general and a

conditional privilege for district attorneys general. The State then asserts that this Court

should follow the minority of jurisdictions addressing this question by extending the

absolute privilege to state district attorneys general in Tennessee. Upon careful

consideration, we disagree.

In adopting the Executive Official Privilege, the Jones Court quoted the Texas

Court of Appeals as stating: “All of the state courts that have addressed the issue have

agreed that an absolute privilege . . . applies to state attorneys general.” Jones, 426

S.W.3d at 55 (quoting Salazar v. Morales, 900 S.W.2d 929, 932 (Tex. Ct. App. 1995))

(citations to other jurisdictions omitted here but included in quotation above). The Jones

Court also noted that in comment c to § 591, the Restatement of Torts listed state

attorneys general as among those high-ranking officers entitled to the absolute privilege

when acting within the scope of their official duties. Jones, 426 S.W.3d at 55. However,

because the issue before our Supreme Court in Jones was whether a cabinet-level state

commissioner was entitled to the Executive Official Privilege, the Court did not directly

address whether the privilege would apply to the state attorney general in Tennessee.

On appeal in this action, the State contends that the Executive Official Privilege

should apply to both the state attorney general and to district attorneys general. We must

emphasize that the question certified for interlocutory appeal does not ask this Court to

decide whether the Executive Official Privilege applies to the state attorney general. We

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therefore make no holding in this regard. See Tenn. R. App. P. 9; In re

Bridgestone/Firestone, 286 S.W.3d at 902 (explaining that on interlocutory appeal, this

Court is limited to the question or questions certified for interlocutory review). However,

assuming, arguendo, that the Executive Official Privilege, as recognized in Jones, were

to be found to apply to the state attorney general, we still cannot agree with the State’s

argument in this case that such an extension would extend to district attorneys general in

Tennessee as well.

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.

Upon adopting the Executive Official Privilege, the Jones Court proceeded to

analyze whether the TDOC Commissioner, who had made the statements at issue in that

case, was an official of such rank that his statements, if made within the scope of his

official duties, would be protected by the privilege. The Court stated in relevant part:

In Tennessee, commissioners serve as the heads of state departments

and function as part of the “Governor’s Cabinet.” These officials formulate

official policy and exercise significant supervisory authority in conducting

state business. Such officials must have the flexibility to make important

decisions free from fear that they will have to defend themselves from

lawsuits. Gregoire [v. Biddle], 177 F.2d [579,] 581 [(2nd Cir. 1949)].

Uninhibited communication with the public about governmental affairs is

essential and must be protected. Barr, 360 U.S. at 577, 79 S.Ct. 1335

(Black, J., concurring). Because providing cabinet-level executive officials

with anything less than absolute immunity from defamation claims would

also force such officials to spend time responding to lawsuits rather than

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discharging their public duties, see Gregoire, 177 F.2d at 581, we hold that

providing absolute immunity to such officials is appropriate.

Id. at 56 (footnotes omitted). The Jones Court thus found that a state commissioner was

at the high-ranking level of “formulat[ing] official policy.” Id.

In reaching its decision concerning the inapplicability of the Executive Official

Privilege in this case, the Commissioner considered the statutory duties of district

attorneys general. Tennessee Code Annotated § 8-7-103 (2016) provides:

Each district attorney general:

(1) Shall prosecute in the courts of the district all violations of the state

criminal statutes and perform all prosecutorial functions attendant

thereto, including prosecuting cases in a municipal court where the

municipality provides sufficient personnel to the district attorney

general for that purpose;

(2) Shall prosecute in the federal court all criminal cases removed from

a state court in the district to any inferior court;

(3) May cooperate and assist, upon the request or direction of the

attorney general and reporter, in the bringing, prosecution, defense,

preparation, and trial of all cases in the circuit and chancery courts in

which the attorney general and reporter is required to appear for the

protection of the state or the public interest;

(4) Shall give an opinion, without charge, whenever called upon by any

county officer in the district, upon a question of criminal law relating

to the duties of the county officer’s office;

(5) Shall submit to the office of executive director for the district

attorneys general conference within ninety (90) days after the end of

each fiscal year, a written report specifying:

(A) Each source from which funds were received by the office of

the district attorney general during the fiscal year;

(B) The amount of funds received from each source; and

(C) The disposition of such funds;

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(6) Shall have discretion in the performance of duties and

responsibilities in the allocation of resources available to such

district attorney general, any other law notwithstanding; and

(7) Shall have authority to delegate the foregoing duties and

responsibilities to an assistant district attorney general.

We determine that the Commission properly found that, while vital to the public, the

statutory duties of district attorneys general do not include formulating official policy at

the state level.

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.”).

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

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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.

V. Conclusion

For the reasons stated above, we hold that the Executive Official Privilege, the

absolute privilege afforded to state executive officials for statements made in the course

of their official duties, as recognized in Jones v. State, 426 S.W.3d 50 (Tenn. 2013), does

not extend to district attorneys general. We therefore affirm the Commission’s judgment

in this regard. This case is remanded to the Commission, pursuant to applicable law, for

further proceedings consistent with this opinion and collection of costs assessed below.

The costs on appeal are assessed against the appellant, the State of Tennessee.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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