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Absolute executive privilege does not apply to district attorney general.

The absolute privilege against a Tennessee defamation claim given to some state officials “for statements made in the course of their official duties” does not extend to district attorneys general.

In Burns v. State of Tennessee, No. E2018-02174-COA-R9-CV (Tenn. Ct. App. Nov. 26, 2019), plaintiff was the lead investigator for the Gatlinburg Police Department on a case involving a high school basketball player who was assaulted with a pool cue. Plaintiff testified during a preliminary hearing, and according to news coverage of the hearing plaintiff stated that “the assault did not constitute a rape because the alleged assailants were not seeking sexual gratification.” After reports regarding plaintiff’s testimony, General Neal Pinkston, who was the Hamilton County District Attorney, sent out a press release to news outlets stating that General Pinkston had requested the TBI to “investigate [plaintiff] for perjurious testimony related to statements he made during sworn testimony” in the preliminary hearing. The next day, General Pinkston’s office released a statement saying “General Pinkston believes [plaintiff] perjured himself in Hamilton County Juvenile Court on Monday, February 15.”

Plaintiff filed this defamation suit based on these two statements from General Pinkston’s office, asserting that he “had been damaged by [their] widespread publication” and pointing out that the statements were published by many news outlets. Defendant (the State of Tennessee) filed a motion to dismiss, arguing that “General Pinkston had absolute official privilege for public statements made in his official capacity.” The Claims Commission denied the motion to dismiss, finding that it could not extend the absolute privilege granted to “high-ranking State executive officials” to district attorneys general, and the Court of Appeals agreed.

The only issue on appeal was “whether the absolute privilege (absolute official privilege) afforded to State officials [acting] in the course of their official duties extends to district attorneys general.” The Court of Appeals began its analysis by reviewing the history of the executive official privilege against defamation claims. The executive official privilege was first established in Tennessee by the Supreme Court in Jones v. State, 426 S.W.3d 50 (Tenn. 2013). In Jones, the Supreme Court noted that the absolute privilege would protect high-ranking government officials against harassment, give them freedom to do their job, and “advance significant First Amendment free speech interests.” The Supreme Court relied heavily on the Restatement (Second) of Torts in the Jones opinion, eventually holding: “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.”

Using the Jones opinion as its background, the Court of Appeals determined here that the executive official privilege should not extend to district attorneys general. The Court pointed out that an illustration in the Restatement specifically found that a local district attorney would not have an absolute privilege, but rather a conditional one. It also reviewed the statutory duties of district attorneys general, finding that such duties “do not include formulating official policy at the state level.” Noting that the majority of states to consider this issue had refused to extend the absolute privilege to district attorneys general, the Court held that “the Executive Official Privilege, the absolute privilege afforded to state executive officials for statements made in the course of their official duties…does not extend to district attorneys general.”

Importantly, the Court specifically stated that it was not deciding whether district attorneys general should be granted a conditional privilege, as the State had not made such an argument, and that it was not determining whether absolute prosecutorial immunity or “the absolute immunity of the litigation privilege” applied in this case.

This case further clarified one of the possible defenses to a defamation case in the state of Tennessee. While the Court’s opinion made clear that some privilege might apply here depending on the facts of this defamation case, it ruled in this matter of first impression that district attorneys general are not entitled to the absolute executive official privilege.

NOTE:  to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers.   Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented.  In this case, the opinion was released about three months after oral argument.

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