Opinion

Amy Frogge v. Shawn Joseph

Court: Court of Appeals of Tennessee
Filed: Jun 20, 2022
Status: Published
On the bench: Judge Carma Dennis McGee
Cited by: 0 cases
Authority: More cited than 8.8%

“[C]ourts have found sufficient adversity between parties to create a justiciable controversy when suit is brought by the only plaintiff subject to regulation by an enactment.”

How later courts described this case

“[C]ourts have found sufficient adversity between parties to create a justiciable controversy when suit is brought by the only plaintiff subject to regulation by an enactment.”
rejecting the argument that Rule 3(f) should be narrowly construed
finding an issue waived because it was “too broad in scope” and “vague and conclusory in nature”
“[A]s the Act has only one conceivable target -- the Morris facility -- it is extremely unlikely that the state would overlook the violation.”

Written by the judges who cited it.

The opinion

06/20/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 3, 2021 Session

AMY FROGGE, ET AL. v. SHAWN JOSEPH, ET AL.

Appeal from the Chancery Court for Davidson County

No. 20-420-III Ellen Hobbs Lyle, Chancellor

___________________________________

No. M2020-01422-COA-R3-CV

___________________________________

Three members of a school board filed this lawsuit after the school board passed a

resolution approving a severance agreement with the director of schools that contained a

non-disparagement clause preventing the individual school board members from

expressing even truthful criticism of the director of schools. The plaintiff board members

named as defendants the school board and the director of schools. They sought a

declaratory judgment that the non-disparagement clause violated their free speech rights

under the First and Fourteenth Amendments to the United States Constitution and Article

I Section 19 of the Tennessee Constitution, was unconstitutionally overbroad, and was

unenforceable as against the public policy of the State of Tennessee. They also sought a

permanent injunction preventing enforcement of the non-disparagement clause and an

award of their attorney fees and costs pursuant to 42 U.S.C. § 1988(b). The plaintiffs

moved for summary judgment on numerous alternative grounds. The defendants filed

motions to dismiss for failure to state a claim, lack of standing, and lack of ripeness. After

a hearing, the trial court entered an order denying the defendants’ motions to dismiss and

granting the plaintiffs’ motion for summary judgment. The trial court found that the non-

disparagement clause was unenforceable and unconstitutional on several grounds. It

permanently enjoined enforcement of the clause and awarded the plaintiffs their attorney

fees. The defendants appeal, arguing that the case should have been dismissed for lack of

standing and ripeness. We affirm and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ANDY D. BENNETT,

J., joined. W. NEAL MCBRAYER, J., filed a concurring opinion.

J. Brooks Fox, Nashville, Tennessee, for the appellant, Metropolitan Government of

Nashville & Davidson Co., Metropolitan Nashville Board of Public Education.

Charles W. Cagle and Katherine Kimmel, Nashville, Tennessee, for the appellant, Shawn

Joseph.

Daniel A. Horwitz and Lindsay B. Smith, Nashville, Tennessee, for the appellees, Fran

Bush, Jill Speering, and Amy Frogge.

OPINION

I. FACTS & PROCEDURAL HISTORY

In 2016, the Metropolitan Nashville Board of Public Education (“the Board”)

entered into a contract of employment with Dr. Shawn Joseph, whereby Dr. Joseph would

serve as Director of Schools for Metro Nashville for a term from 2016 until 2020.1 During

his tenure, Dr. Joseph’s relationship with the Board and several of its elected members

became tumultuous due to several instances of alleged misconduct and poor performance.

Local news sources reported on the controversies, and the State of Tennessee

recommended that Dr. Joseph’s educator’s license be suspended.

On April 9, 2019, a five-member majority of the Board voted to terminate Dr.

Joseph’s employment contract and approve the terms of a Severance Agreement with him.

Each of the three plaintiffs in this case, Jill Speering, Fran Bush, and Amy Frogge, voted

against approving the Severance Agreement. The Severance Agreement contained the

following provisions that are relevant to this appeal:

This Severance Agreement is entered into on this 17 day of April,

2019, by and between the Metropolitan Nashville Board of Public Education

(“Board”) and Dr. Shawn Joseph (“Dr. Joseph”). . . .

...

1. The Board’s Agreement.

...

f. . . .

(2) The Board will not make any disparaging or defamatory comments

regarding Dr. Joseph and his performance as Director of Schools. This

provision shall be effective for the Board collectively and binding upon each

Board member individually. Dr. Joseph does not waive any right to institute

litigation and seek damages against any Board member in his/her individual

capacity who violates the terms and conditions [of] this Article of the

Because the defendants filed motions to dismiss pursuant to Tennessee Rule of Civil Procedure

12.02(6) and argue on appeal that the trial court should have dismissed the case, the facts presented in this

opinion are largely taken from the complaint.

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agreement.

(emphasis added). The Severance Agreement defined the term “Disparaging” as “a false

and injurious statement that discredits or detracts from the reputation of another person.”

However, it separately defined “Defamatory” as “a statement or communication tending to

harm a person’s reputation by subjecting the person to public contempt, disgrace, or

ridicule, or by adversely affecting the person’s business.” Because the non-disparagement

clause prohibited “any disparaging or defamatory comments,” (emphasis added), and the

definition of “defamatory” was not limited to false statements, it had the effect of

prohibiting even truthful statements about Dr. Joseph if they tended to harm his reputation

by subjecting him to “public contempt, disgrace, or ridicule” or “adversely” affecting his

business. Dr. Joseph likewise agreed not to make any disparaging or defamatory comments

regarding Metro, the Board, or individual members of the Board.

On May 4, 2020, Ms. Frogge, Ms. Speering, and Ms. Bush (“Plaintiffs”) filed this

lawsuit individually and in their official capacities as Board members, naming as

defendants Dr. Joseph and the Metropolitan Government of Nashville and Davidson

County, acting by and through the Metropolitan Nashville Board of Public Education.

Plaintiffs alleged that the Board had unlawfully censored even truthful criticism of Dr.

Joseph under penalty of personal liability. They claimed that the restriction prevented

them, as elected officials, from speaking candidly and honestly with their constituents and

with other elected officials about matters essential to their official duties. Plaintiffs

contended that the non-disparagement clause effected a prior restraint on their ability to

make constitutionally protected comments regarding Dr. Joseph and his performance as

Director of Schools. They also asserted that the non-disparagement clause constituted a

speaker-based and content-based restriction on speech. Thus, Plaintiffs alleged that the

non-disparagement clause violated their free speech rights under the First and Fourteenth

Amendments to the United States Constitution and Article I Section 19 of the Tennessee

Constitution. Plaintiffs also asserted that the non-disparagement clause had forbidden a

vast amount of constitutionally protected speech and was unconstitutionally overbroad.

They further alleged that the non-disparagement clause was unenforceable because it

contravened Tennessee public policy as expressed in Tennessee Code Annotated section

8-50-602 to the extent that it prohibited Plaintiffs from communicating with other elected

public officials.2 They sought a declaratory judgment that the clause was unconstitutional

and unenforceable pursuant to Tennessee Code Annotated section 29-14-101, et seq., and

section 1-3-121, in addition to 42 U.S.C. § 1983. Plaintiffs also sought a permanent

injunction prohibiting enforcement of the non-disparagement clause and an award of their

attorney fees pursuant to 42 U.S.C. § 1988(b). They attached to their complaint the

Severance Agreement and the minutes from the Board meeting during which Plaintiffs

Tennessee Code Annotated section 8-50-602(a) is part of the Public Employee Political Freedom

Act of 1980 (“PEPFA”), and provides, “No public employee shall be prohibited from communicating with

an elected public official for any job-related purpose whatsoever.”

-3-

voted against the resolution to accept the terms of the Severance Agreement.

Six weeks after the complaint was filed, neither defendant had filed an answer yet,

but Plaintiffs filed a motion for summary judgment.3 At the outset, Plaintiffs noted that

the non-disparagement clause purported to be “binding upon each Board member

individually,” including Plaintiffs, even though they voted against adopting it. Thus,

Plaintiffs maintained that their right to speak and express truthful criticism regarding Dr.

Joseph had been unlawfully restrained by the Board under penalty of personal liability.

Plaintiffs contended that because their speech had been restricted via a prior restraint, on

the basis of its viewpoint, content, and the identity of the speaker, the restriction was

presumptively unconstitutional such that the government would have the burden of proving

the constitutionality of the restriction. Specifically, they argued that strict scrutiny would

apply, so the government was required to demonstrate that the restriction on speech was

narrowly tailed to serve a compelling state interest. Plaintiffs argued that Metro had no

legitimate interest, much less a compelling one, in allowing censorship of political speech

regarding government officials on matters of public importance. Even assuming that such

an interest did exist, Plaintiffs argued that this restriction was not narrowly tailored. They

also separately addressed the constitutionality of the restriction under the free speech

protections of the Tennessee Constitution. Alternatively, Plaintiffs argued that the non-

disparagement clause was unconstitutionally overbroad. They also asserted that the non-

disparagement clause was void and unenforceable because it violates the public policy

embodied in Tennessee Code Annotated section 8-50-602 or because it purported to strip

them of legislative immunity. Alternatively, Plaintiffs asserted that the non-disparagement

clause should be declared unenforceable against them individually because, although it

purported to bind them individually, they did not assent to the contract. For all of these

reasons, Plaintiffs sought summary judgment declaring that the clause was unenforceable

and unconstitutional and a permanent injunction barring its enforcement.

On July 24, 2020, Metro filed a motion to dismiss pursuant to Tennessee Rule of

Civil Procedure 12.02(6), asserting four grounds for dismissal: (1) lack of standing to

challenge the Severance Agreement, (2) lack of ripeness, (3) failure to state a claim “under

the First Amendment,” and (4) failure to state a claim under the PEPFA. Metro filed a

single memorandum which stated that it was both in support of its own motion to dismiss

and in response to Plaintiffs’ motion for summary judgment. First, regarding standing,

Metro argued that a non-party to a contract has no standing to challenge the contract, and

therefore, Plaintiffs did not have standing to challenge the Severance Agreement because

Tennessee Rule of Civil Procedure 56.01 provides:

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a

declaratory judgment may, at any time after the expiration of thirty (30) days from the

commencement of the action or after service of a motion for summary judgment by the

adverse party, move with or without supporting affidavits for a summary judgment in the

party's favor upon all or any part thereof.

-4-

they were not parties to it. Metro noted that the contract itself stated that it was “by and

between” the Board and Dr. Joseph. According to Metro, the non-disparagement clause

“says nothing about the Plaintiffs’ speech” and should be interpreted to apply only to “the

Board.” Thus, Metro contended that the First Amendment was not implicated because

Plaintiffs’ individual speech was not affected. In a footnote, Metro stated that Plaintiffs

“cannot be individually liable under a contract to which they did not expressly agree.”

Next, Metro argued that Plaintiffs’ claims were speculative and not ripe for review.

Because Plaintiffs were asserting a “pre-enforcement” challenge to the non-disparagement

clause, Metro argued that they were required to show a credible fear of its enforcement

against them. Metro argued that the probability of harm was not substantial or of sufficient

immediacy to warrant a declaratory judgment. According to Metro, the complaint did not

sufficiently allege that Plaintiffs intended to make any statements at all or that Dr. Joseph

would attempt to enforce the clause against them individually if they did. Thus, Metro

suggested that Plaintiffs could challenge the validity of the non-disparagement clause in

the event that they actually made a statement and that Dr. Joseph decided to sue them, at

which point, according to Metro, their claims would become ripe.

Metro also argued that the complaint failed to state a claim for a violation of the

First Amendment for two reasons: (1) the restriction did not constitute a “prior restraint”

on speech but a “subsequent punishment” after speech, and (2) there was no governmental

interference with speech when the agreement threatened liability to a private individual

rather than the government. Finally, Metro argued that the complaint failed to state a claim

for a violation of the PEPFA. Aside from discussing these four bases for Metro’s motion

to dismiss, however, the memorandum did not otherwise respond to the issues analyzed in

Plaintiffs’ motion for summary judgment.

Plaintiffs filed a response to Metro’s motion to dismiss, arguing that Metro’s

standing and ripeness arguments were both premised on an erroneous interpretation of the

Severance Agreement that would go to the merits of the case rather than matters of standing

and ripeness. Plaintiffs insisted that they had standing for several reasons. First, Plaintiffs

claimed that they had standing to petition the court to construe a contractual provision that,

by its plain terms, purported to be “binding upon each Board member individually” and to

seek a declaration regarding the validity and constitutionality of the provision. According

to Plaintiffs, Metro’s argument that the non-disparagement clause did not affect Plaintiffs’

speech strained the plain language of the Severance Agreement “beyond recognition.”

Plaintiffs said they “certainly agree[d] with Metro that they did not assent to be bound by

the contract,” (emphasis added), but Plaintiffs pointed out that this was “one of Plaintiffs’

own pending merits arguments” due to the clear and unambiguous language to the contrary

within the Severance Agreement itself. Plaintiffs also asserted that they had “statutory

standing” to seek a declaratory judgment under the Declaratory Judgment Act, Tenn. Code

Ann. § 29-14-101, et seq., or pursuant to Tennessee Code Annotated section 1-3-121.

Plaintiffs also asserted that they had prudential standing due to the “myriad constitutional

-5-

injuries” arising from the non-disparagement clause.

Aside from the issue of standing, Plaintiffs also argued that their claims were ripe

for review. Initially, they noted that this non-disparagement clause was not present in “a

standard contract between private parties.” Plaintiffs emphasized that they were elected

officials subject to a government-imposed speech restriction due to the Board’s status as a

party to the Severance Agreement and its adoption of the Severance Agreement via

legislative resolution. At the same time, Plaintiffs also noted that unlike the typical case

where a plaintiff initiates a “pre-enforcement” challenge to a generally applicable statute,

here, they sought a declaration regarding the validity of a contract that explicitly purported

to bind them individually. Plaintiffs argued that the Severance Agreement itself integrated

a specific and credible threat of enforcement against Plaintiffs, suggesting that they would

be subject to claims for damages if they violated it. They noted that Dr. Joseph had not

disclaimed any right to enforce the provision that he and Metro had recently negotiated and

agreed upon. Plaintiffs contended that review was appropriate under Tennessee Code

Annotated section 29-14-104, which states, “A contract may be construed either before or

after there has been a breach thereof.” Plaintiffs also asserted that they were forbidden

from expressing even truthful criticism of a public figure and former government official,

and therefore, their claims were ripe under the principles applicable to First Amendment

cases. In response to Metro’s argument that they did not sufficiently plead an intention or

desire to make any statements, Plaintiffs quoted allegations from their complaint stating

that the non-disparagement clause, among other things, “forbids the Plaintiffs—three duly

elected officials who have a duty and obligation to their constituents—from speaking

candidly and honestly with their constituents and with other elected officials” and

“prohibits the Plaintiffs from reporting crime, cooperating with official investigations,

providing truthful testimony, or making constitutionally protected statements in their

official and individual capacities regarding matters of public concern.”

Finally, Plaintiffs argued that their complaint sufficiently stated a claim for relief

under “the First Amendment,” to the extent that the issue was raised in Metro’s motion to

dismiss. However, Plaintiffs noted that their complaint had also asserted “multiple

additional cognizable claims . . . nearly all of which Metro’s motion ignores.” Plaintiffs

argued that Metro had waived any argument as to those alternative issues. Regarding the

PEPFA, which Metro did mention, Plaintiffs clarified that they were not seeking to impose

liability against Metro in the form of a claim under the PEPFA but merely to demonstrate

that the non-disparagement clause violated the public policy expressed in the statute and

should therefore be declared void. Plaintiffs noted that Metro had not submitted any

evidentiary material in their attempt to contest Plaintiffs’ standing, so there was “no

evidence to rebut at this juncture.” Anticipating that Metro might submit evidence at a

later date, Plaintiffs attached an affidavit from Plaintiff Amy Frogge “[i]n the event that

such evidence is presented” by Metro. Ms. Frogge stated that she was presently restricted

from speaking and had refrained from doing so, but she described many of the “true

statements” she would make to her constituents and others regarding Dr. Joseph and his

-6-

widely reported controversies if the non-disparagement clause was invalidated.

Dr. Joseph followed Metro’s lead and likewise filed a response in opposition to

Plaintiffs’ motion for summary judgment along with a motion to dismiss pursuant to Rule

12.02(6) for lack of standing and ripeness. Dr. Joseph’s motion to dismiss simply stated

that he joined the motion to dismiss and the summary judgment response filed by Metro.

His response to the motion for summary judgment raised an alternative argument that the

non-disparagement clause was not subject to strict scrutiny or unconstitutional because

Plaintiffs were public employees. Both Metro and Dr. Joseph responded to Plaintiffs’

statement of undisputed material facts, admitting that all the facts listed by Plaintiffs were

in fact undisputed.

Plaintiffs filed an additional response to Dr. Joseph’s motion to dismiss but noted

that Dr. Joseph raised no new grounds for dismissal. Plaintiffs also filed a “collective

reply” to the defendants’ responses to the motion for summary judgment. Plaintiffs

reiterated the numerous alternative grounds on which they had based their summary

judgment motion, including that the non-disparagement clause was a content-based,

viewpoint-based, and speaker-based speech restriction that was presumptively

unconstitutional and triggered strict scrutiny, and that it could not withstand such scrutiny

because it did not further a compelling government interest and was not narrowly tailored.

Plaintiffs noted they had also alleged that the clause was unconstitutionally overbroad,

violated the Tennessee Constitution, and was unenforceable because it violated public

policy, it unlawfully waived their legislative immunity, and Plaintiffs did not assent to be

bound by it. Plaintiffs noted that neither Metro nor Dr. Joseph had argued that the non-

disparagement clause furthered a compelling governmental interest or was narrowly

tailored, nor did they introduce any evidence in response to the motion for summary

judgment. As a result, Plaintiffs argued, if the trial court concluded that strict scrutiny

applied to the constitutional claims, Metro had necessarily failed to meet its burden of

proving that the non-disparagement clause satisfied strict scrutiny, and it must be

invalidated accordingly. Plaintiffs further noted that neither defendant had addressed their

claims regarding overbreadth, the Tennessee Constitution, or legislative immunity “in any

regard.” Plaintiffs noted that Metro even appeared to agree with their position that they

did not assent to be bound by the non-disparagement clause.

Plaintiffs perceived only three limited arguments advanced by the defendants that

might arguably prevent the application of strict scrutiny. First, Plaintiffs noted Metro’s

argument that there was no state action because the contract threatened private liability to

Dr. Joseph, not the government. However, Plaintiffs noted that even Dr. Joseph had

acknowledged within his response that the Severance Agreement was adopted by the Board

in compliance with Tennessee statutes and “became an official action of the Board.” Thus,

Plaintiffs argued that “state action is present” because of the legislative resolution, in

addition to the fact that the Board was a party to the very contract imposing the restriction.

Next, Plaintiffs addressed Metro’s argument that the language of the Severance Agreement

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limited its application only to the Board and not to Plaintiffs individually. They noted that

the non-disparagement clause plainly stated that it was “binding upon each Board member

individually” and that Dr. Joseph did not waive any right “to institute litigation and seek

damages against any Board member in his/her individual capacity who violates the terms

and conditions [of] this Article of the agreement.” As such, they claimed that it clearly

affected their speech. Finally, Plaintiffs suggested that Dr. Joseph’s argument regarding

public employees was misplaced because they were elected officials, and in any event,

strict scrutiny still applies when such speech restrictions are based on the speaker, content,

or viewpoint. For all these reasons, Plaintiffs argued that there was no genuine dispute of

material fact and that it was entitled to summary judgment declaring that the non-

disparagement clause was unconstitutional, unenforceable, and violated public policy.

Less than 48 hours before the hearing on the motions, Metro and Dr. Joseph filed a

“joint reply” in further support of their own motions to dismiss. It stated, “[B]oth parties

to the contract (the Board and Dr. Joseph) agree that the provision should be interpreted to

limit only the speech of the School Board itself (or those speaking on behalf of the Board),

not that of individual Board members.” The joint reply stated, “If there was a question

previously, Plaintiffs now have their answer: both the Board and Dr. Joseph (the parties to

the contract) have disavowed any interpretation of the severance agreement that would

prevent the Plaintiffs from speaking freely, either as individual board members or as

individual citizens.” According to the defendants, under those circumstances, “Plaintiffs

cannot demonstrate a ‘cognizable injury’ sufficient enough to convey standing and

imminent enough to establish ripeness.” They maintained that Plaintiffs were “nonparties

to the Severance Agreement” and therefore had no cognizable injury that would give them

standing to challenge the contract or a ripe claim to pursue. They suggested that “Plaintiffs

are free to make any statement they wish about Dr. Joseph because the contract provision

only prohibits statements by the School Board itself.”4

After a hearing, the trial court entered an order denying the defendants’ motions to

dismiss and granting Plaintiffs’ motion for summary judgment on the basis that there was

no material dispute that the non-disparagement clause “does not promote a compelling

governmental interest, that it is unconstitutional, and that it is an overbroad and

unenforceable speech restriction.” After reciting the undisputed facts, the court set out the

numerous specific bases on which Plaintiffs had sought summary judgment. The trial court

explained that in the First Amendment context, when the government restricts speech based

on its content and the viewpoint expressed, the restriction is presumptively unconstitutional

and may be justified only if the government proves that the restriction is narrowly tailored

to serve compelling state interests. Thus, the court concluded that Plaintiffs could meet

In response, Plaintiffs submitted a news report from a local television station regarding the

Severance Agreement and its non-disparagement clause. According to the news report, Metro’s Law

Director who negotiated the Severance Agreement said he “could not say” whether individual board

members could actually be sued under the contract because his office had never dealt with that legal issue,

but he added, “That was something that Dr. Joseph wanted in the agreement.”

-8-

their summary judgment burden in this case if they could affirmatively negate an essential

element of the nonmoving party’s claim, by demonstrating beyond material dispute that

the non-disparagement clause was not narrowly tailored to further a compelling

governmental interest. Also, the court explained that Plaintiffs would be entitled to

summary judgment on their overbreadth claim if they could demonstrate beyond material

dispute that a substantial number of the applications of the non-disparagement clause were

unconstitutional in relation to its plainly legitimate sweep.

The court noted that Metro opposed the motion for summary judgment and

simultaneously moved to dismiss on the grounds that the wording of the Severance

Agreement only restricted the speech of the Board, Plaintiffs lacked standing and their

claims were not ripe, and the complaint failed to state a claim under the First Amendment

or the PEPFA. Initially, the trial court rejected Metro’s argument that there was no state

action because it was undisputed that the non-disparagement clause was adopted by a

formal School Board Resolution, and additionally, the Board itself was a party to the

contract containing the speech restriction. As for the wording of the non-disparagement

clause, the trial court again rejected Metro’s argument, finding the text “clearly states

without ambiguity” that it was “binding upon each Board member” and not merely to the

Board as a collective body. The court noted that the clause further referenced Dr. Joseph’s

right to institute litigation and seek damages against any board member “in his/her

individual capacity” should they violate the terms of the agreement. Given this

unambiguous language, the court concluded that Metro’s proposed interpretation “would

make no sense.” The court noted that it could not make a new contract for parties who had

spoken for themselves. With specific reference to the matter of standing, the court noted

Metro’s argument that Plaintiffs were not parties to the contract, so they could not maintain

their claims. However, the trial court rejected this argument “because the contract that they

are challenging expressly states that it binds them, and it still affects them and purports to

subject them to individual damages liability.” It reasoned that the defendants’ “joint

collusion to prevent even truthful criticism of one another,” while asserting that no one had

standing to challenge it, was “insufficient to eliminate the existence of a constitutional

injury” and did not preclude judicial review of the censorship. It found that the contract

“unambiguously applies to the Plaintiffs” and that the matter was “fully justiciable.”

Finally, the trial court rejected Dr. Joseph’s argument regarding public employees.

Having rejected the defendants’ only arguments in opposition to the application of

strict scrutiny, the court concluded that the non-disparagement clause restricted Plaintiffs’

speech on the basis of its viewpoint, content, and speaker, so strict scrutiny applied with

the government bearing the burden of proving the constitutionality of its restriction. The

court found that strict scrutiny would also apply under the Tennessee Constitution. The

court found that neither defendant had offered any explanation as to how an elected

governmental body could lawfully contract away its legislative authority or latitude to

express its views as part of an employee severance agreement. It noted that neither

defendant even argued that the non-disparagement clause furthered a compelling

-9-

government interest or that it was narrowly tailored, nor did they introduce any evidence

in response to the motion for summary judgment. As a result, the court concluded that

Metro failed to meet its burden of proving that the non-disparagement clause satisfied strict

scrutiny, and it must be invalidated.

The trial court also noted that neither defendant addressed Plaintiffs’ arguments

regarding overbreadth, the Tennessee Constitution, or legislative immunity, and the non-

disparagement clause was therefore “invalidated on each of these grounds” as well.

Regarding Plaintiffs’ mutual assent argument, the trial court agreed that “Plaintiffs did not

assent to be bound” by the non-disparagement clause, so it “cannot lawfully be enforced

against them or subject them to damages in any regard.” Regarding the PEPFA, the trial

court noted that both defendants perceived the claim to be in the nature of a cause of action

for damages when Plaintiffs had already clarified that the PEPFA was actually a component

of their much broader claim for declaratory relief that the non-disparagement clause

violated public policy. The court found that neither defendant explained how the non-

disparagement clause could be compatible with the public policy set forth in the PEPFA

regarding communication with public officials.

In summary, at the conclusion of the 27-page order, the trial court declared the non-

disparagement clause unconstitutional, permanently enjoined its enforcement, granted

Plaintiffs’ motion for summary judgment and denied the defendants’ motions to dismiss.

The trial court ruled that Plaintiffs were entitled to recover their attorney fees and costs

pursuant to 42 U.S.C. § 1988 and directed them to file an application for fees. Both Metro

and Dr. Joseph prematurely filed notices of appeal to this Court prior to the final award of

attorney fees. The trial court ultimately entered its final order awarding attorney fees on

November 25, 2020.

II. ISSUES PRESENTED

The parties raise numerous issues on appeal. Because Metro’s statement of the

issues is somewhat difficult to follow, we quote it directly from Metro’s brief:

STATEMENT OF THE ISSUES

The Severance Agreement at-issue was entered into between the

School Board and then-director of schools, Dr. Joseph. Plaintiffs (all board

members at the time) voted against it, did not sign it, and were not parties to

the contract. Accordingly, the Agreement did not bind the Plaintiffs. Further,

the Board and Dr. Joseph (the only parties to the contract) have explained

that it was never their intent to interfere with Plaintiffs’ free speech rights.

Thus, Plaintiffs do not have a concrete and particularized injury-in-fact.

There was never any prohibition of Plaintiffs’ speech, or any enforcement

(or even threatened enforcement) of the Agreement’s nondisparagement

- 10 -

clause.

Therefore, because Plaintiffs’ allegations are insufficient to show an

injury-in-fact, redressability, or ripeness, Plaintiffs do not have standing

(whether under federal or state law) to sue over a contract to which they were

not parties. Finally, Plaintiffs have failed to allege any attempt to speak with

a public official, or any related discrimination on the part of the Metropolitan

Government which would give rise to a claim under TENN. CODE ANN. §

8-50-602(a).

Did the Trial Court err by not dismissing this case?

Dr. Joseph presents two issues for review on appeal, which we also quote from his brief:

I. Whether Plaintiffs may prevail on a motion for summary judgement

in a §1983 action without establishing that they suffered an injury in

fact or that their claims can be redressed by the requested relief.

II. Whether qualified immunity should be extended to a former

government employee in a suit initiated by his former employers to

effectuate the policy rationale underpinning the doctrine of qualified

immunity.

Finally, in their posture as appellees, Plaintiffs present the following issues on appeal:

(1) Whether the trial court correctly determined that the Plaintiffs had

prudential, statutory, and/or individualized standing to maintain their

claims.

(2) Whether the Defendants’ failure to raise an argument on appeal

regarding the trial court’s rulings that the Plaintiffs had prudential

standing to maintain their facial overbreadth claim and statutory

standing to seek a declaration forecloses the Defendants’ claims

regarding the Plaintiffs’ individualized standing.

(3) Whether the trial court correctly determined that the Plaintiffs had

individualized standing to maintain their claims.

(4) Whether the trial court abused its “wide” discretion to issue a

declaration regarding the constitutionality of the legislatively ratified

School Board Censorship Clause in Joseph’s severance agreement.

(5) Whether the Defendants’ failure to appeal three grounds upon which

the trial court invalidated the School Board Censorship Clause

forecloses the Defendants’ merits arguments.

(6) Whether Joseph’s merits arguments are waived because they are

presented for the first time on appeal.

(7) Whether the trial court erred in declaring the School Board

Censorship Clause unconstitutional and illegal due to its facial

- 11 -

overbreadth; its content-, viewpoint-, and speaker-based speech

restrictions; its contravention of article I, § 19 of the Tennessee

Constitution; or its violations of Tennessee public policy.

(8) Whether either Defendant appealed the trial court’s November 25,

2020 order on attorney’s fees.

(9) Whether Metro may adopt Joseph’s argument regarding the trial

court’s November 25, 2020 order on attorney’s fees when Joseph’s

position cannot apply to Metro.

(10) Whether Joseph’s claim regarding the trial court’s November 25,

2020 order on attorney’s fees is waived because he failed to advance

it below and took a conflicting position before the trial court.

(11) Whether the allegations in the Plaintiffs’ Complaint are admitted due

to the Defendants’ failure to deny them in a responsive pleading.

(12) Whether the Plaintiffs should recover their attorney’s fees regarding

this appeal.

For the following reasons, we affirm the decision of the chancery court and remand for

further proceedings.

III. DISCUSSION

A. Defining the Issues on Appeal

We begin by noting the lack of clarity in Metro’s statement of the issues. This Court

emphasized the importance of clearly defining issues presented for review on appeal in

Cartwright v. Jackson Capital Partners, L.P., 478 S.W.3d 596, 613-15 (Tenn. Ct. App.

2015), in which we explained:

At the outset, it is necessary to identify the issues properly presented

for our review in order to define the scope of our review on appeal. “‘Scope

of review’” defines the issues that may be reviewed by an appellate court

when an order or judgment has been properly appealed. Hodge v. Craig, 382

S.W.3d 325, 333 n.2 (Tenn.2012). The scope of our review depends largely

on whether issues have been properly raised on appeal and presented in the

manner prescribed by Tennessee Rule of Appellate Procedure 27. Id. at 333-

34. Appellants must include in their brief “a statement of the issues they

desire to present to the court and an argument with respect to each of the

issues presented.” Id. at 334-35 (footnote omitted); see Tenn. R. App. P.

27(a)(4) (providing that briefs must contain a “statement of the issues

presented for review”). “The requirement of a statement of the issues raised

on appeal is no mere technicality.” Owen v. Long Tire, LLC, No. W2011-

01227-COA-R3-CV, 2011 WL 6777014, at *4 (Tenn. Ct. App. Dec. 22,

2011). In Hodge, the Tennessee Supreme Court emphasized the importance

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of properly presenting issues for review and indicated that “a properly framed

issue may be the most important part of an appellate brief.” Id. at 334 (citing

Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of

Persuading Judges 83 (2008); David E. Sorkin, Make Issue Statements Work

for You, 83 Ill. B.J. 39, 39 (Jan. 1995)). “Rather than searching for hidden

questions, appellate courts prefer to know immediately what questions they

are supposed to answer.” Id. (citing Bryan A. Garner, Garner on Language

& Writing 115 (2009); Robert L. Stern, Appellate Practice in the United

States § 10.9, at 263 (2d ed. 1989)). “The issues should be framed as

specifically as the nature of the error will permit in order to avoid any

potential risk of waiver.” Id. at 335 (citing Fahey v. Eldridge, 46 S.W.3d 138,

143-44 (Tenn. 2001); State v. Williams, 914 S.W.2d 940, 948 (Tenn. Crim.

App. 1995)). “Parties should refrain from incorporating several separate and

distinct errors into a single issue.” Williams, 914 S.W.2d at 948-49 (finding

an issue waived because it was “too broad in scope” and “vague and

conclusory in nature”). Instead, “[a] separate issue should be presented for

each error raised in the appellate court.” Id. at 948 (citing Leeson v. Chernau,

734 S.W.2d 634, 637 (Tenn. Ct. App. 1987)). The Rules of Appellate

Procedure “‘do[ ] not contemplate that an appellant may submit one blanket

issue as to the correctness of the judgment and thereby open the door to

argument upon various issues which might affect the correctness of the

judgment.’” Id. at 948 n.5 (quoting Leeson, 734 S.W.2d at 637).

“[P]roperly drafted issues will assist the writer of the appellant’s brief,

the writer of the appellee’s brief, the panel of appellate judges who are

assigned the responsibility of addressing the issues in an opinion, and the

staff of each appellate judge.” Williams, 914 S.W.2d at 948. If an issue is not

properly drafted, “[t]he attorney preparing the appellee’s brief will entertain

doubt as to the precise issue that is to be addressed[.]” Id. The appellee is

entitled to fair notice of the appellate issues so as to prepare his or her

response, and, more importantly, “this Court is not charged with the

responsibility of scouring the appellate record for any reversible error the

trial court may have committed.” Owen, 2011 WL 6777014, at *4. “It is not

the role of the courts, trial or appellate, to research or construct a litigant’s

case or arguments for him or her, and where a party fails to develop an

argument in support of his or her contention or merely constructs a skeletal

argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Sup.

Ct., 301 S.W.3d 603, 615 (Tenn. 2010). “The adversarial system of justice is

premised on the idea that ‘appellate courts do not sit as self-directed boards

of legal inquiry and research, but essentially as arbiters of legal questions

presented and argued by the parties before them.’” Malmquist v. Malmquist,

No. W2007-02373-COA-R3-CV, 2011 WL 1087206, at *11 n. 21 (Tenn. Ct.

App. Mar. 25, 2011) (quoting State v. Northern, 262 S.W.3d 741, 767 (Tenn.

2008) (Holder, J., concurring in part and dissenting in part)). Thus, “appellate

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courts may properly decline to consider issues that have not been raised and

briefed in accordance with the applicable rules.” Waters v. Farr, 291 S.W.3d

873, 919 (Tenn. 2009).

...

“‘Courts have consistently held that issues must be included in the

Statement of Issues Presented for Review required by Tennessee Rules of

Appellate Procedure 27(a)(4). An issue not included is not properly before

the Court of Appeals.’” Bunch v. Bunch, 281 S.W.3d 406, 410 (Tenn. Ct.

App. 2008) (quoting Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App.

2001)).

With these principles in mind, we return to Metro’s statement of issues, which bears

repeating: