             IN THE COURT OF APPEALS OF TENNESSEE

                               AT NASHVILLE



AMANDA LINN CASHION, )                 TENNESSEE CLAIMS COMMISSION
                       )               (Middle Division Claim 99000601)
    Claimant/Appellant )

v.
                       )
                       )
                                                            FILED
                                       APPEAL NO. 01A01-9903-BC-00174
                       )                                   September 17, 1999
STATE OF TENNESSEE     )
                       )                                   Cecil Crowson, Jr.
                                                          Appellate Court Clerk
    Defendant/Appellee )               AFFIRMED


Amanda Linn Cashion, Memphis, pro se for Appellant.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor
General; and Martha A. Tarleton, Senior Counsel, Nashville, for Appellee.


                         OPINION

                                       INMAN, Senior Judge


      This claim against the State for damages for alleged libel was filed with the

Division of Claims Administration on October 7, 1998, and subsequently

transferred to the Claims Commission, whose decision was upheld by the Chancery

Court. The claimant, a former probationary staff attorney for the Department of

Mental Health and Mental Retardation, alleges that she was libeled by an opinion

of the Court of Appeals styled Cashion v. Robertson, and reported in 955 S.W.2d

60 (Tenn. Ct. App. 1997), which reviewed and affirmed the judgment of the

Chancery Court.

      The State of Tennessee is alleged to have acted by and through the (1) Court

of Appeals, (Middle Section), as an entity, (2) Judges Koch, Todd, and Cantrell,

(3) the members of the Supreme Court of Tennessee, and (4) John Knox Walkup,

the Attorney General of Tennessee. The Supreme Court is taken to task on account
of its denial of the claimant’s application for permission to appeal the judgment of

the Court of Appeals. We deduce that the purported liability of the Attorney

General is founded upon his official function as Reporter of the decisions of the

Supreme Court.1

       The State filed a Rule 12.02(b) motion to dismiss for failure to state a claim

upon which relief can be granted. The accompanying Memorandum argued that

(1) the claim is barred by the Statue of Limitations, (2) the claim is barred by

absolute immunity, and (3) the opinion of the Court of Appeals was not libelous.

The Claims Commission granted the motion to dismiss, and this appeal resulted.

Our review is de novo on the record with no presumption of correctness. Rule 13,

T.R.A.P.; Tenn. Farmers Ins. Co. v. Amer. Nat. Ins. Co., 840 S.W.2d 933, (Tenn.

Ct. App. 1992); Elliott v. Dollar Gen. Corp., 475 S.W. 651 (1971).                            The

propounded issues involved questions of privilege, immunity, libel and the statue

of limitations.

       The Opinion complained of is reported, as aforesaid, in 955 S.W.2d 60. In

light of this publication, no reason comes to mind to justify a plenary recitation of

the claimant’s abbreviated tenure as a probationary staff attorney for the Tennessee

Department of Mental Health and Mental Retardation, and the reasons for her

termination. Suffice to state that she was employed on July 25, 1994 as “Attorney

III” and assigned to the Arlington Development Center in Shelby County, which

       1
          Claimant also filed a 42 U.S.C.§ 1983 case in the U.S. District Court at Nashville
against Judges Koch, Todd and Cantrell. She also sought review by that Court of her state
claim. The case was referred to the Magistrate Judge, who filed a Report finding, inter alia,
         “The claims asserted by the plaintiff border on the frivolous. It is difficult to believe
         that an attorney ..... could file such pleadings.”
         The Report and Recommendation of Dismissal by the Magistrate Judge was adopted
and approved by U.S. District Judge Thomas A. Higgins on April 7, 1999. The case is on
appeal to the Sixth Circuit. Plaintiff argues that the distinction between the State and Federal
cases is found that, in the former, damages are sought against the State of Tennessee, whose
liability is alleged to be derivative, for the alleged libelous statements in the opinion authored
by Judge Koch, while in the latter, damages are sought against the individual judges for
allegedly depriving the claimant-plaintiff of due process.

                                                2
was then the subject of litigation brought by the U.S. Department of Justice

involving the Department’s alleged failure to provide a safe environment for the

residents. The claimant was critical of the Department’s handling of the federal

litigation, and did not report for work for several days. On August 22, 1994 she

was informed of her termination because she was not “fitting in”. Her termination

was effective as of August 25, 1994. On September 2, 1994 pursuant to T.C.A. §

4-5-223, she petitioned the Department and the Civil Service Commission for a

declaratory order respecting her rights as a probationary employee under T.C.A.§

8-30-312. A declaratory ruling was denied, and the claimant thereupon filed a

complaint in the Davidson County Chancery Court seeking a declaratory judgment

of her rights as a probationary employee. The complaint was dismissed for failure

to state a claim for which relief could be granted. The claimant appealed to the

Court of Appeals which affirmed the judgment in an opinion giving alleged rise to

this action.

      The claim is focused on the following portion of the opinion authored by

Judge Koch:

      “Ms. Cashion promptly shared Mr. Boyd’s remarks with her
      immediate supervisor. During this meeting, Ms. Cashion was
      extremely critical of the DMHMR’s handling of the federal
      investigation and of its standards and procedures at Arlington. She
      returned to Memphis following the meeting but did not report for
      work at Arlington for several days. She decided to work at home
      because the Department had not provided her with ‘proper office
      space’ . . . and because she believed that her work was on hold. . . Ms.
      Cashion met with Stanley Lipford . . .and Larry Durvin . . .when she
      returned to Arlington on August 22, 1994. When Ms. Cashion
      vehemently protested her dismissal, Dr. Durbin and Mr. Lipford
      instructed her to clear out her desk, return her keys, and leave . . .
      Arlington . . . by the end of the day.”

      The claimant exegetes the quoted remarks as “a false, inaccurate, misleading

depiction of the appellant as staff counsel,” and “. . . by describing claimant to be



                                         3
a person who is unreliable, unreasonable, unstable, near-hysterical, temperamental,

almost violent, over-bearing, overly demanding,” she was “portrayed as a person

no reasonable employer in his right mind would not consider firing her.”

                                       III

      With respect to the allegation of libel, our perplexity is boundless, because

however subjectively extrapolated, the remarks are clearly not libelous. A citation

of authority for this conclusion is not required. We agree with the finding of the

Commission that “This Commission cannot find anything at all in this opinion that

describes the ‘claimant to be a person who is unreliable, unreasonable, unstable,

near-hysterical, temperamental, almost violent, over-bearing, overly-demanding’--

this opinion just does not say any such thing and does not leave any such

impression. This opinion simply does not have the ‘the tendency to injure

Claimant’s professional reputation and to hold Claimant up to scorn and ridicule

. . .’ (as the addendum to the complaint says). Can this claimant be complaining

about some other opinion, different from the one published at 955 S.W.2d 60?”

                                        IV

      Parenthetically, at this juncture of the case, we note that the Claims

Commissioner considered the State’s reply to the claimant’s opposition to the

motion to dismiss without affording the claimant an opportunity to submit a

response. Claimant treats this action as seriously impeding her presentation. Any

response would have been necessarily argumentative, and hence its absence was

not - could not - be crucial. This issue is de minimis and need not be further

noticed.

                                        V




                                        4
      We pretermit the issue of the Statute of Limitations, which inferentially

recognizes the viability of a claim had it been timely presented. Our view of this

litigation is no less critical than the views of the Federal Court or the Tennessee

Claims Commission. The purported claim is utterly devoid of merit.

                                         VI

      We now take up the issue of immunity. A claim for libel is within the

jurisdiction of the Claims Commission if the state employee is determined to be

acting within the scope of employment. T.C.A. § 9-8-307(a)(1)(R). But the

defamatory matter constituting libel must first be proved, else the issue is moot;

and we have heretofore summarily held that nothing in the subject opinion is

remotely libelous. Syllogistically, then, the issue of immunity is moot and

unnecessary to be discussed. But the point should in all events be pressed: Judges

are absolutely immune from monetary liability for decisions within the scope of

their official functions, and the State is entitled to plead this defense pursuant to

T.C.A. § 9-8-307(d) in its capacity as employer.

      The United States Supreme Court has held that the particularly sensitive

duties of certain public officials require that they have absolute immunity from

money damages for decisions within the scope of their official functions. See, e.g.,

Nixon v. Fitzgerald, 457 U.S. 731, 746, 102 S.Ct. 2690, 2699, 73 L.Ed.2d 349

(1982) (President); Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 2911-12,

57 L.Ed.2d 895 (1978) (officials with functions similar to those of judges); Stump

v. Sparkman, 435 U.S. 349, 362, 98 S.Ct 1099, 1107, 55 L.Ed.2d 331, 342, reh’g

denied 436 U.S. 951, 98 S.Ct. 2862, 56 L.Ed.2d 795 (1978), on remand Sparkman

v. McFarlin, 601 F.2d 261 (7th Cir. 1979) (judges); Imbler v. Pactman, 424 U.S.




                                         5
409-23, 96 S.Ct. 984, 990-92, 47 L.Ed.2d 128, 137-40 (1976) (prosecutors). For

these officials, the threat of liability would inhibit the performance of their duties:

      When officials are threatened with personal liability for acts taken
      pursuant to their official duties, they may well be induced to act with
      an excess of caution or otherwise skew their decision in ways that
      result in less than full fidelity to the objective and independent criteria
      that ought to guide their conduct.


      Chief among such public officials are judges. It has long been recognized

by the United States Supreme Court that judicial acts enjoy common law immunity.

See Wilkes v. Dinsman, 48 U.S. 89, 12 L.Ed. 618 (1849); Randall v. Brigham, 74

U.S. 523, 19 L.Ed. 285 (1868). In 1872, the Supreme Court declared that it was

a general principle of the highest importance that a judicial officer should be free

to act upon his own convictions, without apprehension of personal consequences

to himself.   Bradley v. Fisher, 13 Wall 335, 347, 80 U.S. 335, 20 L.Ed. 646

(1871).   For this reason, the Court in Bradley held that judges of general

jurisdiction are not liable in civil actions for their judicial acts. Tennessee law is

in accord with this approach. See Heath v. Cornelius, 511 S.W.2d 683 (Tenn.

1974).

      Judges sued under 42 U.S.C. § 1983 have absolute immunity for acts within

the judicial role. Pierson v. Ray 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288

(1967). If the Court has jurisdiction and the judge is discharging his legal duties,

the doctrine of judicial immunity applies. See Kurz v. State of Michigan, 548 F.2d

172, 174 (6th Cir. 1977), cert. denied, 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462,

reh’g denied 434 U.S. 1089, 98 S.Ct. 1289, 55 L.Ed.2d 796 (1978). See also Lopez

v. Vanderwater, 620 F.2d 1229, 1233 (7th Cir. 1980), cert. dismissed, 449 U.S.

1028 (1980); Birch v. Mazander, 678 F.2d 754, 755 (8th Cir. 1982); Scott v. Hayes,

719 F.2d 1562 (11th Cir. 1983).


                                          6
       In determining whether a public official such as a judge should be entitled

to absolute immunity in a particular case, the Court has adopted a “functional

approach.” See, e.g., Nixon v. Fitsgerald, 457 U.S. at 746-47, 102 S.Ct. at 2699-

700, 73 L.Ed.2d at 349; Butz v. Economou, 438 U.S. at 508-514, 98 S.Ct. 2911-15,

57 L.Ed.2d 895; Stump v. Sparkman, 435 U.S. at 362, 98 S.Ct. at 1107, 55 L.Ed.2d

331; Imbler v. Pachtman, 424 U.S. at 420-23, 430, 96 S.Ct. at 990-92, 47 L.Ed.2d

at 137-40, 143 (1976).

       Applying the functional approach in suits against judges, the cases “suggest

an intelligible distinction between judicial acts and the administrative, legislative,

or executive functions that judges may on occasion be assigned by law to

perform.” Forrester v. White, 484 U.S. at 227, 108 S.Ct. at 544, 98 L.Ed.2d at 565.

Judicial acts protected by the doctrine of judicial immunity include, for example,

acting to disbar an attorney as a sanction for contempt of court, or barring a witness

from the courtroom. See, e.g., Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir. 1994);

Bradley v. Fisher, 13 Wall at 354, 80 U.S. 335, 20 L.Ed. 646. Administrative

decisions for which absolute immunity is not extended include the demotion or

discharge of court personnel such as a probation officer or a secretary. See, e.g.,

Forrester, 484 U.S. at 229, 108 S.Ct. at 545, 98 L.Ed.2d 555; Cameron, 38 F.3d

at 272-73. The Court considers such unprotected administrative decision as “acts

that simply happen to have been done by judges.” Forrester at 227, 108 S.Ct. at

544.

       In applying the functional approach to a specific case, a court must make a

two-part inquiry into the nature of the defendant official’s function and the effect

of liability upon the execution of that function. The Supreme Court in Forrester

v. White has described the analysis under the functional approach:



                                          7
      Under that approach, we examine the nature of the functions with
      which a particular official or class of officials has been lawfully
      entrusted, and we seek to evaluated the effect that exposure to
      particular forms of liability would likely have on the appropriate
      exercise of those functions.

Forrester at 224, 108 S.Ct. at 542, 98 L.Ed. 2d 555.

      In the case at Bar, the issue is whether the writing and issuing of an opinion

in an appeal before the Tennesssee Court of Appeals is a judicial function. The

answer to that question is, of course, “yes”.        In light of this, the Claims

Commissioner properly dismissed the claimants claim as barred by judicial

immunity.

      Moreover, we hold that statements made in the course of judicial

proceedings, including those in pleadings, that are relevant and pertinent to the

issues involved, are absolutely privileged and cannot be a predicate for liability in

an action for libel. See, Lambdin Funeral Service, Inc. v. Griffith, 559 S.W.2d 791

(Tenn. 1978). Statements made in the course of a judicial proceeding which are

relevant and pertinent are subject to this absolute privilege and cannot be the basis

for a libel action even if the statements are false, known to be false, or even

malicious. Myres v. Pickering Firm, Incorporated, 959 S.W.2d 152 (Tenn. Ct.

App. 1997).

      The claimant argues that this absolute privilege does not apply to the

allegedly defamatory opinion because it included “statements which purport to

describe Claimant/Appellant/Plaintiff’s comments, appearance, attitude, conduct,

behavior and demeanor while she was an employee with the Tennessee Department

of Mental Health and Mental Retardation, offering no references to the Record, no

attribution to sources, no characterization as to whether the statements were




                                         8
contested or uncontested, supported or unsupported.” She contends that such a

discussion was unnecessary to a resolution of the case.

      Her appeal centered on her dismissal because she was not “fitting in.” She

argues the following statements were libelous and not relevant and pertinent to the

opinion. “Ms. Cashion promptly shared Mr. Boyd’s remarks with her immediate

supervisor.”; “During the meeting, Ms. Cashion was extremely critical of the

DMHMR’s handling of the federal investigation and of its standards and

procedures at Arlington.”; “She returned to Memphis following the meeting but did

not report for work at Arlington for several days.”; “She decided to work at home

because the Department had not provided her with ‘proper office space’ . . . and

because she believed that her work was on hold . . .”; “Ms. Cashion met with

Stanley Lipford and Larry Durbin . . . when she returned to Arlington on August

22, 1994.”; :When Ms. Cashion vehemently protested her dismissal, Dr. Durbin

and Mr. Lipford instructed her to clear out her desk, return her keys, and leave . .

. Arlington . . . by the end of the day.” It is elementary that a judicial opinion

should recite the evidence of record or discussed in the briefs which supports an

action taken. “Fitting in” required some explanation.

      We need not burden this matter further. The judgment is affirmed at the

costs of the appellant.

      The sitting Judges of the Court of Appeals of Tennessee recused themselves

from a consideration of this case. The Chief Justice of the Supreme Court of

Tennessee, within his statutory purview, designated the undersigned Senior Judges

of Tennessee to hear this case.




                                         9
_______________________________
                                       William H. Inman, Senior Judge
CONCUR:



_______________________________
John K. Byers, Senior Judge



_______________________________
L. Terry Lafferty, Senior Judge




                                  10
