In a 2013 decision, an appellate court judge* unilaterally exempted the judiciary from provisions of state transparency laws, and the Tennessee Constitution, with no statutory or constitutional authority to do so, reversing over 20 years of established case law.
The fourth President of the United States James Madison, revered by many as the architect of the United States Constitution, wrote to his friend William T. Barry in 1822, then the Lieutenant Governor of Kentucky, that “[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” As such, many also revere Madison as one of the first champions of open government in the United States. It is for this reason, this strain of classical liberal thought that sought to constrain institutions of government, such that men could not very easily use their political power to abuse and bludgeon one another for selfish ends, that the Tennessee Constitution enshrined principles of open government in Article I, Section 19 (PDF), where its creators wrote “That the printing press shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof.”
Unfortunately, none of that seemed to matter to Elisha Hodge, the Open Records Counsel in the Office of Open Records of the Tennessee Comptroller of the Treasury, from whom I recently sought an advisory opinion when the Board of Professional Responsibility of the Tennessee Supreme Court denied a lawful open records request I had made for documents pertaining to an investigation into the professional conduct of sitting Chief Justice Gary R. Wade. Upon learning that Chief Justice Wade had received a letter from the Board dismissing ethics charges against him with a warning, I filed my request with the Board, citing the Tennessee Open Records Act, or Public Records Act. The Board’s denial of my request for copies of this letter to Wade, and of related records, cited the Supreme Court’s own rules regarding allegations of misconduct as exemptions to Tennessee’s existing transparency laws.
In effect affirming the Board’s denial of my request, Hodge replied to my request for an advisory opinion in this matter in a recent email, stating that she “does not see anything” in the open records request I had submitted to the Board that suggests an exemption in the Court’s document secrecy rules should apply to your humble scribe. (Never mind that I am a taxpaying citizen of the State of Tennessee, or that the Tennessee Constitution is quite clear that anything printed by any branch of government shall be open to public inspection, and that no law may deprive me of that right.) What I was shocked to learn from information contained in Counsel Hodge’s correspondence, and further research, is that the Court of Appeals of Tennessee seems to have presumed, on behalf of the entire judiciary, that the Court’s own rules exempt the judiciary from clear statutory provisions of the state’s open record laws, from clear language in the Tennessee Constitution, and from prior case law in the state.
I had requested, citing statues in the Public Records Act, from Sandy L. Garrett, Chief Disciplinary Counsel at the Board of Professional Responsibility of the Tennessee Supreme Court, a copy of a letter the Board had sent to Tennessee Supreme Court Chief Justice Gary R. Wade dismissing professional misconduct charges against him with a warning, and copies of communications between members of the Board of Judicial Conduct relating to the investigation that prompted this letter. One of Garrett’s deputies, James A. Vick, subsequently replied to and denied my request, citing Tennessee Supreme Court rules that hold documents and evidence in allegations of misconduct against justices in secret.
Though she declined to issue a formal advisory opinion in response to my letter to her, Counsel Hodge cited recent case law to suggest that the Court and Board are within their right to privilege the documents I seek. In Connie Reguli v. James Vick, Lela Hollabaugh, and Tennessee Board of Professional Responsibility (PDF), to which Hodge referred in her email to me, the Court of Appeals of Tennessee at Nashville reversed the Chancery Court of Davidson County’s decision to compel disclosure of documents held by the Board, relating to disciplinary investigations of eight attorneys, one of which was Ms. Reguli, herself. In that case, the Court sought to answer whether Sections 25.1(b) and 25.3 of Tennessee Supreme Court Rule 9 could exempt disclosure of the documents Ms. Reguli sought. (Rule 9 has since been amended, and what once was Section 25 is now Section 32; Mr. Vick cited Sections 32.1 and 32.5 in denying my request for the Board’s letter to Chief Justice Wade.)
In Reguli, Judge* Richard H. Dinkins found that the documents Ms. Reguli sought constitute “work product and work files” as defined by Section 25.3 of the old Rule 9, and were therefore confidential, “[a]pplying the principles of statutory construction,” and that Section 21 “…protects the integrity of the [disciplinary] process when a complaint has been filed pursuant to Section 8 until the complaint has been investigated and a determination has been made as to whether the complaint should be dismissed or further action taken.” The categorization of the documents being sought, and the timing of Ms. Reguli’s records request, were the legal issues at stake in that case.
Scroll to the bottom of the post or click here to view redacted copies of Scoville’s request for state records, and his subsequent, ongoing correspondence with state officials.
I am not an attorney, but presumably, if the Board had sent Chief Justice Wade a letter dismissing misconduct charges against him with a warning, Section 21 of the Rule should not apply to my situation. Disclosing the records I’m seeking, now that the investigation into Chief Justice Wade’s conduct has ostensibly concluded, in other words, poses no threat to the integrity of that investigation. How could the timing of my request be an issue in a concluded investigation?
The Public Records Act directs Court to construe its statutes broadly “…so as to give the fullest possible access to public records.” With respect to whether or not Section 25 applies, or whether the Tennessee Supreme Court’s Rules provide exemptions to the Public Records Act more broadly, we must turn to the footnotes in Reguli. Judge* Dinkins writes in Reguli that, in The Tennessean v. Tennessee Department of Personnel, a case involving an open records investigation into allegations of sexual harassment of state employees, the Court found that the statutory exemptions added to the Act by the legislature since the Act originally became law in 1957 somehow magically include the Court’s rules about its own business (they don’t; the 33 statutory exemptions contain no such language, but more on that in a bit). Further, the Dinkins Court argued that, because nobody in Reguli appeared to question the Court’s authority to rule on the matter, it ruled that Tennessee Supreme Court Rule 9 qualifies as “state law” under the provisions of the Act.
As I intimated to Counsel Hodge in my request for an advisory opinion on the Board’s reply to me and its denial of my lawful records request, in Memphis Publishing Company v. Holt the Tennessee Supreme Court held that, in duly adopting amendments to the Public Records Act in 1984, “…the legislature reserved to itself alone the power to make public policy exceptions to [the Public Records Act]” and further that “Where … the intent of the Legislature appears clear upon consideration of the natural and ordinary meaning of the statutory language, it is not the office of this Court either to extend or limit that language’s import, regardless of how we may perceive the equities of the cause.” Quite plainly, Memphis Publishing Company here precludes Courts from unilaterally exempting records from public inspection, especially when there is no duly-enacted statutory authority from which to derive such an exemption.
Roughly twenty years later, in Tennessean, Judge* Patricia J. Cottrell wrote:
Therefore, the permissible exceptions to the Act’s disclosure requirements were broadened from statutory exceptions to also include exceptions found in any state law including the state constitution, common law, rules of court, and properly authorized rules and regulations, because each of these has the “full force and effect” of law in Tennessee. Swift, 159 S.W.3d at 571.
When interpreting the Act, however, we must remain mindful that the purpose of the Act is to promote public awareness of the government’s actions and to ensure the accountability of government officials and agencies by facilitating access. Memphis Publishing Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d at 74; Swift, 159 S.W.3d at 570. The Act creates a “clear mandate in favor of disclosure.” Tennessean v. Electric Power Bd., 979 S.W.2d 297, 305 (Tenn. 1998); Swift, 159 S.W.3d at 570. A presumption is created that the records described in Tenn. Code Ann. § 10-7-503 are open to the public. State v. Cawood, 134 S.W.3d 159, 165 (Tenn. 2004); Arnold v. City of Chattanooga, 19 S.W.3d 779, 785 (Tenn. 1999). The courts are instructed to interpret the Act broadly “so as to give the fullest possible public access to public records.” Tenn. Code Ann. § 10-7-505(c).
The exceptions to the Act recognized by state law, however, are not subsumed by the admonition to interpret the Act broadly. These exceptions embody the legislature’s decision that there are circumstances where the reasons not to disclose a record “outweigh the policy favoring disclosure.” Swift, 159 S.W.3d at 571. Where the legislature has clearly established a statute’s parameters, courts are not free to apply a “broad” interpretation that disregards specific statutory language.
In order to protect a record otherwise covered by the Act from public disclosure, the government must establish by a preponderance of the evidence that the record falls within an exception to the Act. Tenn. Code Ann. § 10-7-505(c). In order to do that, the government must show that the record is excluded from disclosure by state law. Swift, 159 S.W.3d at 571.
In the footnotes in Reguli, however, a mere six years after Tennessean, Judge* Dinkins (cleverly, and possibly deliberately) ignored the three paragraphs Judge* Cottrell had written after the first paragraph cited above. That’s significant, because the language in Judge* Cottrell’s opinion that follows the first paragraph above creates limitations on and defines boundaries around the language in that first paragraph. Dinkins writes in Reguli (again, emphasis added):
In The Tennessean v. Tenn. Dep’t of Pers., this court addressed an effort by the Tennessean newspaper and one of its reporters for access to documents held by the Tennessee Department of Personnel relative to investigations of alleged harassment of employees; disclosure was resisted based on the claim that the documents were protected by the attorney client privilege and/or the work product doctrine. In addressing the wording of Tenn. Code Ann. § 10-7-503(a) which provided an exception to public access if provided by “state law”, we reviewed the evolution of the Act and noted that the “state law” provision in the statute had broadened since its enactment in 1957:
Therefore, the permissible exceptions to the Act’s disclosure requirements were broadened from statutory exceptions to also include exceptions found in any state law including the state constitution, common law, rules of court, and properly authorized rules and regulations, because each of these has the ‘full force and effect’ of law in Tennessee.
The Tennessean v. Tenn. Dep’t of Pers., 2007 WL 1241337 at *5 (citing Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App. 2004). No question is raised in this appeal that Tenn. Sup. Ct. R. 9 qualifies as “state law” within the meaning of Tenn. Code Ann. § 10-7-503, and we hold that it does so qualify.
Et voila — magic! The Dinkins Court held that Tennessee Supreme Court Rule 9 (and the Sections underneath it, which the Board of Professional Responsibility cited in denying lawful records requests to both Ms. Reguli and me, respectively) qualifies as “state law” under the statutory exemption language in the Tennessee Public Records Act, simply because it says so.
Again, I am not an attorney, but it seems that, like former United States Supreme Court Chief Justice John Marshall presumed the prerogative of judicial review in Marbury v. Madison, without any explicit legal authority so to do, Judge* Dinkins has here presumed that the Court’s Rules, simply because it writes them, or simply because the Court finds such on its own, exempt the judiciary from both open records statutes and the very clear language of the state constitution, in clear contradiction with established case law in both Memphis Publishing Company and Tennessean. Whether Rule 9 “has the ‘full force and effect’ of law” should have no bearing on the matter when the Tennessee Supreme Court has previously held that the Court may not exempt records without the natural, ordinary language of statutory authority so to do, or when Tennessee Constitution says “no law shall ever be made to restrain the right” of Tennesseans to examine “the proceedings of the Legislature; or of any branch or officer of the government….”
At least with judicial review, we who are inclined to prefer liberty-maximizing public policy can see some moral value in additional checks and balances against abuses of power by a majority faction that controls both the legislature and the executive. It’s much more difficult to make a case that secrecy rules governing investigations into the misconduct of sitting public officials, wrought by those very sitting public officials and the institution in which they operate, serves any clear, liberty-maximizing public interest. Tennesseans have a right to know if their judges are being censured behind closed doors; the state constitution says this in very plain language.
I shouldn’t have to be the first person to observe, either, that really no duly established court in Tennessee can impartially rule in any matter pertaining to the very Board of Professional Responsibility to which all attorneys and justices in Tennessee are subject in disciplinary matters. Any court in Tennessee will always have an incentive to ensure that the Board may conceal any state records which would undermine its legitimacy, the Board’s legitimacy, or the legitimacy of any attorney or justice in the state. This is, simply put, a textbook moral hazard. I also shouldn’t have to be the first person to observe that, if the Board investigated misconduct charges against Chief Justice Wade, and found that those charges lacked sufficient merit to proceed with public censure under the Court’s Rules, then neither he nor they, presumably, have anything to hide.
It’s too bad that Tennessee lawmakers have already concluded their 2014 legislative session, so they can spend the summer in their districts campaigning. It strikes me that a simple amendment to the Public Records Act that very clearly precludes the judiciary (and/or the executive) from unilaterally exempting itself from the Act without duly-enacted statutory authority would go a long way toward resolving this matter specifically, and strengthening government transparency more generally.
It is also entirely possible that my source is wrong, and has inadvertently misled me about any kind of formal investigation into Chief Justice Wade’s professional conduct, and that no letter dismissing charges, with or without a warning, actually exists. If that is the case, however, why would the Board not simply deny my request saying “no such records exist,” instead of pointing to secrecy rules about allegations of misconduct by justices? If the same sunlight shone on the Court that shines on other branches and levels of government, the Board of Professional Responsibility would either produce the documents, or outright deny they exist. The bad news is that, even if the Board does change course, and denies the existence of this letter and this investigation outright, the Court’s secrecy rules will make sure Tennesseans never know the truth. Will Tennessee media outlets start working sources, and pressure the Board to produce these records? I can think of no greater cause for a press that at one time, anyway, spoke truth to power. They clearly have a stake in reversing this underhanded behavior by the Court and its overseer.
Open Records Counsel Hodge has, for the time being, referred my ongoing request for both a copy of the letter from the Board to Chief Justice Wade, and for an advisory opinion on the Board’s withholding of the letter, to Deputy Attorney General Janet Kleinfelter, whose job entails representing the State of Tennessee on open records matters. One would think that responsibility falls under the purview of the Open Records Counsel, but I digress. At this stage, everyone seems to agree that the Board of Professional Responsibility investigated allegations of misconduct regarding Chief Justice Wade, and sent him a letter dismissing those charges with a warning; but nobody is willing to affirm what I think is my very clear constitutional right to examine that letter (and other documents associated with the investigation), and the disposition of my request, absent litigation, now rests with an agent of the Tennessee Attorney General’s office.
That in and of itself, too, is loaded with a number of perverse incentives because, as I pointed out in a recent editorial in the Daily Caller, Tennessee is the only state in the Union whose Supreme Court appoints its Attorney General. Let that sink in for a moment: the person now tasked with determining whether or not I am lawfully entitled to inspect records pertaining to government business works for a man appointed by the very body whose business I am seeking to inspect. Further, Deputy General Kleinfelter previously represented Vick and the Board of Professional Responsibility in Reguli. What are the odds Kleinfelter will approach my request with an view toward my rights and liberties as a citizen? Indeed, to the rights and liberties of all citizens of Tennessee? Nine days have passed since Hodge forwarded my request to Kleinfelter via email; I have not received a reply from the Attorney General’s office, and I wonder if I should expect to hear at all.
I have been in contact with some national public interest law firms to see if they deal in state-level open records disputes and, if so, if they would be willing to help me pursue both my original records request, and possibly a claim against the Board of Professional Responsibility of the Tennessee Supreme Court on behalf of myself, and on behalf all Tennesseans from whom the state judiciary currently presumptively, unilaterally and, I’d argue, unlawfully hides its business from citizens, especially business relating to the alleged ethical shortcomings of the sitting Tennessee Supreme Court Chief Justice. If you represent a public interest firm, or are an attorney in private practice with the appetite and bandwidth for pro bono work in this matter, please contact me at my personal website. If you’re not able to represent me in this matter, please share this blog post far and wide, in your own blogs, on your Facebook pages, Twitter accounts, and any other means of communicating at your disposal. As former U.S. Supreme Court Justice Louis Brandeis wrote in a 1913 Harper’s Weekly article, “Sunlight is said to be the best of disinfectants….” We simply cannot count on the beneficence of government officials to do what’s right in situations like this without a critical mass of public education and action.
*An earlier version of this story incorrectly described appellate court judges, generally and by name, as “justices.” It has since come to my attention that only judges on the Supreme Court carry the title “justice,” and lower court judges go by “judge.” I apologize for the error.