                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 5, 2013 Session

                       JACK E. MILLER v. BOYD WYATT

               Appeal from the Circuit Court for Cumberland County
                     No. CV005372       Amy V. Hollars, Judge


            No. E2013-00491-COA-R3-CV-FILED-FEBRUARY 26, 2014


Jack E. Miller, a former City Manager of Crossville, filed this defamation action against
Councilman Boyd Wyatt, based on Wyatt’s statement during a City Council meeting that
Miller had been “discharged from City Manager up here because of misappropriating funds
and not following procedures.” Wyatt moved for summary judgment, arguing, among other
things, that he was protected by legislative privilege under the common law and Tenn. Code
Ann. § 29-20-201(b)(2) (2012), which statute provides that “[a]ll members of boards,
commissions, agencies, authorities, and other governing bodies of any governmental entity
. . . shall be immune from suit arising from the conduct of the affairs of such board,
commission, agency, authority, or other governing body.” The trial court granted summary
judgment on the ground that Wyatt had immunity under § 29-20-201(b) because the alleged
defamatory statement arose “from the conduct of the affairs of” the Crossville City Council.
We agree with the trial court that Wyatt’s statement was made in the course of conducting
the affairs of the City Council and, therefore, was protected by legislative privilege. We
affirm the judgment of the trial court.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Affirmed; Case Remanded

C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which J OHN W.
M CC LARTY and T HOMAS R. F RIERSON, II, JJ., joined.

Mark N. Foster, Rockwood, Tennessee, for the appellant, Jack E. Miller.

Lane Moore, Cookeville, Tennessee, for the appellee, Boyd Wyatt.
                                              OPINION

                                                   I.

        A bit of Crossville’s recent political history provides the backdrop for this case. In
the fall of 2010, Mayor J.H. Graham, III, was running for re-election. Also running for
Mayor was City Councilman Jesse Kerley. Wyatt, a Graham supporter, placed an item on
the agenda of the City Council meeting of October 12, 2010,1 captioned “Item #8: Matters
Relative to Political Ads.” Councilman Wyatt asserted that the purpose of Item #8 was to
discuss and refute certain allegations regarding city employees, including Mayor Graham,
in political advertisements run by Kerley. When Item #8 came up for discussion at the
meeting, Councilman Earl Dean moved for its removal from the agenda stating that it was
improper because “I don’t believe that the politics should be upon this Council.” In response
to Dean’s motion, Wyatt stated:

                This ad, these ads and this Agenda item was [sic] put on here by
                me. And it’s not meant to be a political forum of any kind. It
                wasn’t meant to be a political debate for any – the Mayor’s race,
                or Councilman race, or anything of that nature. Now, I feel very
                strongly. And you will hear from me in regard to this about
                these ads and what they said in regards to the City employees
                and the Council – of which Mr. Dean was part of. Now these
                ads, in my opinion, are not just against Councilman Wyatt,
                Mayor Graham, Councilman Duer. They are also about all of
                this Council, Mr. Kerley.

The motion to remove was defeated by a 3-2 vote, with Dean and Kerley voting to remove
Item #8, and Graham, Wyatt, and Councilman Carl Duer voting to retain it on the agenda.
Dean then left the meeting, apparently in protest.

        After Dean’s exit, Wyatt stated the following:

                First of all, ladies and gentlemen, the Agenda item was put on
                tonight’s meeting by me . . . for the sole purpose of answering
                a political ad by Jesse Kerley that ran in the Chronicle on
                October the 1st and another date that questions the


        1
         This meeting was videotaped and a copy of the recording was provided to the trial court and is
included in the appellate record. Consequently, there is no genuine issue of material fact regarding what
transpired at the meeting.

                                                  -2-
              professionalism, honesty, integrity and accuracy of the City
              employees and Council in regards to recording documentation
              of Council Minutes.

              This ad would lead you to believe that there are employees that
              have not done their job properly, and that the City Manager and
              Council have stood by and let this happen. I want to assure you
              that – this isn’t the case, and that the ads are far from the truth.

              I’ve asked the City Manager to investigate and report back to the
              Council its findings in this matter. He has done so and has
              given the Council copies of the approval of minutes that back up
              his findings. I want to go over his findings with you at this time.

The City Council then had a lengthy discussion about the allegations in Kerley’s political ads,
with Wyatt requesting that the City Manager and City Clerk present certain information,
including past Council meeting minutes, in an attempt to discredit the statements in the ads.
Kerley responded with other information, trying to defend his allegations.

       Near the end of the discussion, the following exchange took place:

              WYATT: Now, you’ve read a letter from a former City Manager
              that’s outrageous.

              KERLEY: I just brought it to show. I didn’t read it. If you want
              to read it, you can read it.

              WYATT: Now, he was discharged from City Manager up here
              because of misappropriating funds and not following
              procedures. And then you want to bring a letter up here from
              him with all kind of garbage here on it about me and the Mayor.
              It’s totally out of order, in my opinion.

              COUNCILMAN DUER: Did you say who the City Manager is?
              I want to get that – I don’t want to reflect on another person.

              WYATT: Pardon me, sir?

              DUER: Please say who the City Manager is, the one you are
              talking about, the letter.

                                              -3-
                WYATT: I think it’s signed by Jack Miller, isn’t it,
                Councilman?

                KERLEY: It sure was.

Kerley testified in his deposition that he had asked Miller to provide him a recommendation,
or Miller’s opinion of Graham. Miller’s handwritten letter discussed at the meeting stated
the following:

                In 30 plus years of public service, I have worked for 5
                Governors, 12 Mayors, over 150 City Council Members,
                including the incumbent Mayor of the City of Crossville, and his
                challenger, Councilman Jesse Kerley. Mr. Kerley asked me to
                compare Mr. Graham with some of the other elected leaders of
                which I had served.

                In my honest evaluation, I believe that J.H. Graham, III, is the
                most ethically challenged, ego-mani[a]cal, narcissistic elected
                official I have ever known. He appeared, to me, to be interested
                only in serving his ego and the financial interests of his relatives
                and political allies. I believe th[at] Mr. Graham is incapable of
                altruistic thought or action!

                Bring back dignity, respect, intellectual integrity, to the office of
                Mayor. Elect Jesse Luke Kerley.

Kerley did not read Miller’s letter at the meeting. He did bring copies of it to show to some
or perhaps all of the other Council members.

       Miller brought this defamation action against Wyatt, based solely on Wyatt’s
allegedly slanderous statement at the City Council meeting, i.e., that Miller “was discharged
from City Manager up here because of misappropriating funds and not following
procedures.”2 The trial court granted Wyatt’s motion for summary judgment, holding, among
other things, that “[t]he undisputed facts demonstrate that the alleged defamatory statement
made by defendant Wyatt ‘arose from the conduct of the affairs’ of the Crossville City
Council, and, hence, Defendant Wyatt has immunity pursuant to Tenn. Code Ann. § 29-20-
201(b)(1).” Miller timely filed a notice of appeal.


        2
         Miller’s complaint initially included other statements that he alleged were defamatory, but he later
voluntarily dismissed his claims based on those other statements.

                                                    -4-
                                           II.

      We address the following issues:

             (1) Whether the trial court erred in granting Wyatt summary
             judgment based upon the court’s determination that the allegedly
             defamatory statement arose from the conduct of the affairs of
             the Crossville City Council and was therefore protected by
             legislative privilege.

             (2) Whether summary judgment was improperly granted in view
             of the fact that Wyatt failed to comply with Tenn. R. Civ. P.
             56.03 by not providing specific citations to the record
             supporting his statement of material facts until two days before
             the motion hearing.

                                           III.

       In reviewing the trial court’s grant of summary judgment, we are guided by the
following well-established standards as recently reiterated by the Supreme Court:

             A summary judgment is appropriate only when the moving party
             can demonstrate that there is no genuine issue of material fact
             and that it is entitled to judgment as a matter of law. Tenn. R.
             Civ. P. 56.04; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5
             (Tenn. 2008). When ruling on a summary judgment motion, the
             trial court must accept the nonmoving party’s evidence as true
             and resolve any doubts concerning the existence of a genuine
             issue of material fact in favor of the nonmoving party. Shipley
             v. Williams, 350 S.W.3d 527, 536 (Tenn. 2011) (quoting Martin
             v. Norfolk S. Ry., 271 S.W.3d 76, 84 (Tenn. 2008)). “A grant
             of summary judgment is appropriate only when the facts and the
             reasonable inferences from those facts would permit a
             reasonable person to reach only one conclusion.” Giggers v.
             Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009)
             (citing Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.
             2000)). “The granting or denying of a motion for summary
             judgment is a matter of law, and our standard of review is de
             novo with no presumption of correctness.” Kinsler v. Berkline,
             LLC, 320 S.W.3d 796, 799 (Tenn. 2010).

                                           -5-
Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013).

        “Courts have the prerogative to decide as a matter of law whether statements are
privileged.” Evans v. Nashville Banner Publ’g Co., No. 87-164-II, 1988 WL 105718 at *6
(Tenn. Ct. App. M.S., filed Oct. 12, 1988). There are no disputed issues of material fact in
this case.

                                             IV.

                                             A.

       The concept of legislative immunity is deeply rooted in American jurisprudence. The
United States Supreme Court, in Bogan v. Scott-Harris, 523 U.S. 44, 48-49 (1998),
addressing the issue of whether local legislators are absolutely immune from suit under
federal § 1983 for their legislative activities, observed that

              [t]he principle that legislators are absolutely immune from
              liability for their legislative activities has long been recognized
              in Anglo-American law. This privilege “has taproots in the
              Parliamentary struggles of the Sixteenth and Seventeenth
              Centuries” and was “taken as a matter of course by those who
              severed the Colonies from the Crown and founded our Nation.”
              Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 786, 95
              L.Ed. 1019 (1951). The Federal Constitution, the Constitutions
              of many of the newly independent States, and the common law
              thus protected legislators from liability for their legislative
              activities.

The High Court, after conducting an examination of the common law from the mid-
nineteenth century, concluded that

              [b]ecause the common law accorded local legislators the same
              absolute immunity it accorded legislators at other levels of
              government, and because the rationales for such immunity are
              fully applicable to local legislators, we now hold that local
              legislators are likewise absolutely immune from suit under §
              1983 for their legislative activities.




                                              -6-
Id. at 49. The Bogan Court reviewed and applied several rationales for granting absolute
immunity to local legislators engaged in legislative activity, including its observations that
(1) “[r]egardless of the level of government, the exercise of legislative discretion should not
be inhibited by judicial interference or distorted by the fear of personal liability,” id. at 52;
(2) “the time and energy required to defend against a lawsuit are of particular concern at the
local level, where the part-time citizen-legislator remains commonplace,” id.; (3) “the threat
of liability may significantly deter service in local government,” id.; and (4) “the ultimate
check on legislative abuse – the electoral process – applies with equal force at the local level,
where legislators are often more closely responsible to the electorate.” Id. at 53.

        This Court, recognizing “the obvious policy determination that the importance of
legislators freely speaking their minds outweighs the countervailing argument that those
people who are defamed should be able to recover damages for injury to their reputations,”
held in Cornett v. Fetzer, 604 S.W.2d 62, 63 (Tenn. Ct. App. 1980) that “an absolute
privilege should be recognized in this state for remarks made by city council members which
relate to matters within the scope of that body’s authority.” Id.; see also Issa v. Benson, No.
E2012-01672-COA-R3-CV, 2013 WL 3227049 at *4-5 (Tenn. Ct. App. E.S., filed June 24,
2013) (following Cornett and holding city councilman’s statements to other council members
prior to meeting are protected by absolute legislative privilege).

       The Tennessee General Assembly adopted and codified the common law legislative
privilege for city council members and other legislators at the local level when it amended
the Governmental Tort Liability Act (“the GTLA”) in 1986 to provide the following:

              (1) The general assembly finds and declares that the services of
              governmental entity boards, commissions, authorities and other
              governing agencies are critical to the efficient conduct and
              management of the public affairs of the citizens of this state.
              Complete and absolute immunity is required for the free
              exercise and discharge of the duties of such boards,
              commissions, authorities and other governing agencies.
              Members of boards, commissions, authorities, and other
              governing agencies must be permitted to operate without
              concern for the possibility of litigation arising from the faithful
              discharge of their duties.

              (2) All members of boards, commissions, agencies, authorities,
              and other governing bodies of any governmental entity, created
              by public or private act, whether compensated or not, shall be
              immune from suit arising from the conduct of the affairs of such

                                               -7-
              board, commission, agency, authority, or other governing body.
              Such immunity from suit shall be removed when such conduct
              amounts to willful, wanton, or gross negligence.

Tenn. Code Ann. § 29-20-201(b).

        Although the legislative privilege is absolute, and bars a defamation claim when it is
held to apply, it is not without limits. The privilege “ ‘does not give a member of a
subordinate legislative body the right to use his or her position as a forum for private slanders
against others.’ ” Issa, 2013 WL 3227049 at *4 (quoting Cornett, 604 S.W.2d at 63).
Because a reason supporting the legislative privilege is “ ‘to insure an uninhibited debate
concerning matters before a legislative body, it follows that such a privilege is applicable
only if the defamatory remarks are made relating to matters within the scope of that body’s
authority.’ ” Id. In Bogan, the U.S. Supreme Court framed the issue this way:

              Absolute legislative immunity attaches to all actions taken “in
              the sphere of legitimate legislative activity.” . . . Although the
              [federal] Court of Appeals did not suggest that intent or motive
              can overcome an immunity defense for activities that are, in fact,
              legislative, the court erroneously relied on petitioners’ subjective
              intent in resolving the logically prior question of whether their
              acts were legislative.

              Whether an act is legislative turns on the nature of the act, rather
              than on the motive or intent of the official performing it. The
              privilege of absolute immunity “would be of little value if
              [legislators] could be subjected to the cost and inconvenience
              and distractions of a trial upon a conclusion of the pleader, or to
              the hazard of a judgment against them based upon a jury’s
              speculation as to motives.” Tenney, 341 U.S., at 377, 71 S.Ct.,
              at 788 (internal quotation marks omitted). Furthermore, it
              simply is “not consonant with our scheme of government for a
              court to inquire into the motives of legislators.”

                                     *      *         *

              This leaves us with the question whether, stripped of all
              considerations of intent and motive, petitioners’ actions were
              legislative.



                                                -8-
Bogan, 523 U.S. at 54-55. The GTLA similarly provides immunity only for “suit arising
from the conduct of the affairs of such board, commission, agency, authority, or other
governing body.” Tenn. Code Ann. § 29-20-201(b)(2).

        In the present case, Miller argues that Wyatt’s allegedly defamatory statement that
Miller had been discharged as City Manager because of “misappropriating funds” did not
arise from the conduct of the affairs of the Crossville City Council. In his brief, Miller
argues that “electioneering and politics are fine, but politicians who are also government
officials do not receive the protection afforded government officials in conducting the affairs
of the government merely because the politician/official attempts to improperly insert
electioneering and politics into the time and space that should be devoted to the affairs of the
government.”

       This Court was recently presented with similar arguments in Issa, where a city
councilman, Benson, was sued by Issa for allegedly telling other council members before the
meeting that Issa had offered him a bribe in an attempt to influence a rezoning vote. 2013
WL 3227049 at *1. The trial court granted Benson’s motion for judgment on the pleadings
on the ground of legislative privilege. Issa appealed. Affirming the trial court, we stated the
following:

              Issa argues that Benson’s statements are not protected by the
              legislative privilege because, in part, they were not made during
              a regularly-scheduled, open meeting of the Chattanooga City
              Council. Issa points out that in Cornett, the allegedly
              defamatory remarks were made during a regularly-scheduled,
              open city council meeting. We, however, do not believe this is
              a decisive distinction. . . . [O]ur inquiry centers on the nature
              and scope of the statements at issue vis-a-vis Benson’s
              legislative functions. Issa argues essentially that Benson’s
              remarks were gratuitous, and beyond the scope of a legitimate
              legislative function. Additionally, Issa argues that bribery is not,
              per se, part of the legislative function in regards to rezoning
              issues.

              Issa’s arguments are unavailing. Issa takes what we believe to
              be an unwarranted and extremely narrow view of what
              constitutes legislative function. The same policy reasons . . . for
              applying the legislative privilege to a legislative body such as
              the Chattanooga City Council are just as applicable to Benson’s
              statements to his fellow council members as it would have been

                                              -9-
              if he had made the same statement to those same council
              members in a regular scheduled open meeting of the
              Chattanooga City Council. While bribery of a public official is,
              of course, illegal and thus never officially part of a city council’s
              legislative agenda, a city council may well have a legitimate
              basis for knowing whether individuals seeking certain actions
              from the council have attempted to secure support by illegal
              means. Whether an individual attempts to bribe a council
              member in order to influence a vote surely is relevant
              information for the council to consider in weighing that vote.
              While we take no position on the truth of Benson’s allegations,
              we do hold that they are of a legislative character under the
              allegations of Issa’s complaint. Having decided that, we do not
              probe into Benson’s motivations. We hold that Benson’s
              allegations fell within the scope of his legislative function and
              are protected by the legislative privilege.

Issa, 2013 WL 3227049 at *4-5.

        In this case, the allegedly defamatory statement was made in the course of a regularly
scheduled, open meeting of the Crossville City Council. This factor, while not dispositive
under our ruling in Issa, nonetheless weighs in favor of applying legislative privilege, and
brings the facts of this case closer to those in Cornett. Moreover, a majority of the council
voted to reject the attempt to remove Item #8 from the agenda, reflecting a majority view that
the topic of the political advertisements was an appropriate matter for discussion. We do
observe generally that if a city council member becomes aware of allegations of impropriety
by a city employee, it would fall within the legitimate business of the council to discuss and
investigate the allegations. We hold that, under the circumstances here, Wyatt’s statement
arose from the conduct of the affairs of the Crossville City Council, fell within the scope of
his legislative function, and therefore was cloaked with immunity. Having decided that, we
do not probe into Wyatt’s intentions or motivations. Issa, 2013 WL 3227049 at *5; Bogan,
523 U.S. at 55 (stating “it simply is not consonant with our scheme of government for a court
to inquire into the motives of legislators”) (internal quotation marks omitted).

                                               B.

       Miller argues that the trial court’s summary judgment also should be reversed because,
he argues, Wyatt failed to comply with the requirements of Tenn. R. Civ. P. 56.03, which
provides in pertinent part:



                                              -10-
              In order to assist the Court in ascertaining whether there are any
              material facts in dispute, any motion for summary judgment
              made pursuant to Rule 56 of the Tennessee Rules of Civil
              Procedure shall be accompanied by a separate concise statement
              of the material facts as to which the moving party contends there
              is no genuine issue for trial. Each fact shall be set forth in a
              separate, numbered paragraph. Each fact shall be supported by
              a specific citation to the record.

Miller argues that “although Wyatt met the 30-day deadline for filing a motion for summary
judgment, he did not comply with the requirement of [Rule 56.03] that each statement of
material fact upon which the movant relies be supported by a specific citation to the record.”
Miller asserts that Wyatt did not provide specific citations to the record until Wyatt filed a
brief in support of his summary judgment motion two days before the hearing. Wyatt argues
that he complied with Rule 56.03 and that in any event, the trial court has broad discretion
to waive the rule’s requirements.

        We agree with Wyatt that this is an issue that falls within the trial court’s broad
discretion. See Butler v. Diversified Energy, Inc., No. 03A01-9804-CV-00146, 1999 WL
76102 at *3 (Tenn. Ct. App. E.S., filed Jan. 28, 1999) (holding that “the provision of Rule
56.03 of the Tennessee Rules of Civil Procedure, directing a simple concise statement of the
material facts to accompany any motion for summary judgment, is for the benefit of the trial
court, and could be, as it was in this case, waived”); see also Newell v. Maitland, No.
W2007-01704-COA-R3-CV, 2008 WL 2122331 at *8 (Tenn. Ct. App. W.S., filed May 21,
2008). It was within the trial court’s discretion to allow the summary judgment hearing to
proceed as scheduled, despite Miller’s argument that Wyatt had provided specific citations
to the record only two days before the hearing. It would also have been within the court’s
discretion to allow more time if the court thought it was needed. In this case, where all of
the facts pertinent to the dispositive issue of legislative privilege were captured on videotape
and provided to the court, there was clearly no error in allowing the hearing to proceed as
scheduled.

                                              V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Jack E. Miller. This case is remanded to the trial court, pursuant to applicable law,
for collection of costs assessed below.




                                              -11-
__________________________________________
CHARLES D. SUSANO, JR., PRESIDING JUDGE




      -12-
