Floyd Rodney Burns v. State of Tennessee

11/26/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 20, 2019 Session

FLOYD RODNEY BURNS v. STATE OF TENNESSEE

Interlocutory Appeal from the Tennessee Claims Commission
No. T20161418 William A. Young, Commissioner

No. E2018-02174-COA-R9-CV

This appeal arose from a claim filed with the Tennessee Claims Commission (“the
Commission”) against the State of Tennessee (“the State”), seeking an award of damages
for defamation allegedly committed by a district attorney general through statements
made to the media concerning the claimant. The State filed, inter alia, a Tennessee Rule
of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim upon which
relief could be granted, and the claimant filed, inter alia, a response objecting to the
motion. Following a hearing, the Commission denied the State’s motion to dismiss upon
finding, in pertinent part, that the Commission did not have the authority to extend
absolute immunity to district attorneys general. Upon the State’s application, the
Commission and this Court each granted permission for interlocutory review. Having
considered the certified question of whether the absolute privilege afforded to state
officials for statements made in the course of their official duties, as recognized in Jones
v. State, 426 S.W.3d 50 (Tenn. 2013), extends to district attorneys general, we determine
that the privilege does not apply and accordingly affirm the Commission’s judgment.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Claims Commission
Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; and Laura Miller, Assistant Attorney General, for the appellant, the
State of Tennessee.

Bryan E. Delius and Bryce W. McKenzie, Sevierville, Tennessee, for the appellee, Floyd
Rodney Burns.
 OPINION

I. Factual and Procedural Background

The claimant, Detective Floyd Rodney Burns (“Detective Burns”), had been
employed with the Gatlinburg Police Department for approximately twenty-five years
when the statements at issue in this defamation action were made. Detective Burns
served as the lead investigator in the alleged assault and rape of an Ooltewah High
School basketball player with a pool cue by teammates during a December 2015 team trip
to a tournament in Gatlinburg. In February 2016, Detective Burns testified during a
preliminary hearing conducted in the Hamilton County Juvenile Court concerning
charges of failure to report child abuse that had been brought against the high school’s
athletic director and men’s basketball coaches by Hamilton County District Attorney
General Neal Pinkston (“General Pinkston”). As part of their coverage of the assault and
resulting investigation, several media news outlets reported, inter alia, that Detective
Burns had testified during the preliminary hearing that the assault did not constitute a
rape because the alleged assailants were not seeking sexual gratification. At issue in this
action are statements that General Pinkston subsequently made to the news media
regarding Detective Burns’s testimony.

As demonstrated by a press release emailed from General Pinkston’s office to
news outlets, General Pinkston issued the following statement to the media on February
17, 2016:

At the request of Hamilton County District Attorney General Neal Pinkston
the Tennessee Bureau of Investigation will investigate Gatlinburg Police
Department Detective Floyd Rodney Burns for perjurious testimony related
to statements he made during sworn testimony in Hamilton County Juvenile
Court on Monday, February 15, 2015, regarding the assaults and rapes of
four Ooltewah High School freshmen basketball players at a tournament in
Sevier County last December.

General Pinkston has instructed me to tell you he will have no further
comment until the investigation is completed.

News reports attached to the pleadings in this case demonstrate that General Pinkston’s
office then issued the following statement on February 18, 2016:

General Pinkston believes Detective Burns perjured himself in Hamilton
County Juvenile Court on Monday, February 15. That’s the only reason he

2
 asked the TBI to investigate. He swore an oath to prosecute crimes, no
matter who commits them.

On March 15, 2016, Detective Burns filed a claim alleging “libel (defamation)” in
the Division of Claims Administration, asserting that he had been damaged by the
widespread publication of General Pinkston’s purportedly defamatory statements
accusing him of perjury. See Tenn. Code Ann. § 9-8-307(a)(1)(R) (Supp. 2019)
(providing the Claims Commission with “exclusive jurisdiction to determine all monetary
claims against the state based on the acts or omissions of ‘state employees’” with regard
to “[c]laims for libel and/or slander where a state employee is determined to be acting
within the scope of employment.”)1 Detective Burns requested an award of $300,000 in
damages.

Detective Burns attached to his claim two online articles, “Angry D.A. Seeks
Perjury Charge Against Gatlinburg Detective,” WDEF News (Feb. 17, 2016) and
“Gatlinburg detective defends testimony, district attorney responds, claims detective
perjured himself,” The Chattanooga Times Free Press (Feb. 18, 2016), reflecting the
statements at issue made by General Pinkston. In his claim, Detective Burns alleged that
“General Pinkston’s allegation that [Detective Burns] committed perjury was published
in several media outlets including CBS News, the Chattanooga Times Free Press, the
Knoxville News Sentinel, the Mountain Press, WTVC, WRCB, WDEF, WTVR, WVLT,
and WATE.” Detective Burns also attached a printout of a tweet sent online via Twitter
by a reporter with Mountain Press, dated February 17, 2016, stating: “Release from their
office doesn’t specify what part of his testimony they’re looking at. No more details to
be released at this time.”

The Division of Claims Administration transferred the claim to the Commission
on June 13, 2016. See Tenn. Code Ann. § 9-8-402(c) (Supp. 2019) (“If the division fails
to honor or deny the claim within the ninety-day settlement period, the division shall
automatically transfer the claim to the administrative clerk of the claims commission.”).
The Commission, with Commissioner William O. Shults presiding, entered an order
governing the proceedings on June 20, 2016.

Upon transfer to the Commission, Detective Burns filed a complaint, substantively
identical to his previous claim, on July 8, 2016. The State responded by filing a motion
to stay discovery and a motion to dismiss the complaint, pursuant to Tennessee Rule of
Civil Procedure 12.02(6), for failure to state a claim upon which relief could be granted.
As pertinent to this appeal, the State contended that General Pinkston had “absolute
official privilege for public statements made in his official capacity” and that, in the
1
“Libel and slander are both forms of defamation; libel being written defamation and slander being
spoken defamation.” Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001).
3
alternative, he possessed “absolute prosecutorial immunity for statements made regarding
the initiation of criminal charges.” The State also argued that the statements at issue were
not defamatory.

In support of its argument that General Pinkston’s statements were protected by an
absolute official privilege, the State argued that the Tennessee Supreme Court’s holding
in Jones v. State, 426 S.W.3d 50 (Tenn. 2013), should be applied to district attorneys
general. See Jones, 426 S.W.3d at 58 (holding in a case involving statements made to the
media by the Tennessee Department of Correction (“TDOC”) Commissioner concerning
the demotion of an employee that “cabinet-level executive officials ‘have an absolute
privilege to publish defamatory matter concerning another in communications made in
the performance of [their] official duties.’” (quoting Restatement (Second) of Torts § 591
(1977))). As the State acknowledges, the Jones decision included the following footnote:

This case concerns statements made by TDOC Commissioner Little, who is
a cabinet-level official. We do not decide in this case whether the privilege
of absolute immunity extends beyond cabinet-level officials.

Jones, 426 S.W.3d at 56 n.7.

Detective Burns filed responses in opposition to the motion to stay discovery and
the motion to dismiss, maintaining in the latter that neither absolute privilege nor
prosecutorial immunity applied and that the statements at issue were defamatory. In an
order entered August 8, 2016, following a telephonic hearing, the Commission placed the
claim in abeyance upon finding that Detective Burns had been charged with perjury in the
Hamilton County Criminal Court and that proceeding with discovery in this civil action
could potentially compromise Detective Burns’s constitutional right against self-
incrimination.2 Following a subsequent telephonic hearing, the Commission, with
Commissioner William A. Young now presiding, entered an order on April 2, 2018,
removing the claim from abeyance and allowing Detective Burns to file an amended
complaint.

In his amended complaint, Detective Burns averred that the criminal charge of
perjury against him had been dismissed. Retaining the earlier allegations lodged in his
complaint, Detective Burns also averred that publication of the allegedly defamatory
statements had become more widespread and that he had “suffered great damage to his
reputation, his active cases [had] been postponed, and he [had] been ridiculed by the

2
The summons issued upon Detective Burns in the criminal court, attached in this record to the State’s
motion to dismiss, charged Detective Burns with making two statements while under oath in the juvenile
court preliminary hearing that purportedly conflicted with statements made in the police reports he had
prepared concerning the incident involving the Ooltewah basketball players.
4
public and media outlets.” He again requested an award of $300,000 in damages. The
State responded by filing a motion to dismiss the amended complaint, pursuant to
Tennessee Rule of Civil Procedure 12.02(6), maintaining its arguments that General
Pinkston’s statements were covered by absolute privilege or, in the alternative,
prosecutorial immunity and that the statements were not defamatory.

Following a hearing, the Commission entered an order denying the State’s motion
to dismiss the amended complaint on August 13, 2018. Noting that additional documents
consisting of media reports had been attached as exhibits to both Detective Burns’s
amended complaint and the State’s motion to dismiss, the Commission found that the
exhibits did not convert the motion to dismiss to a motion for summary judgment. As
relevant to the issue on interlocutory appeal, the Commission found that it could not
extend the absolute privilege afforded to “high-ranking State executive officials” acting
within the scope of their official duties (“Executive Official Privilege”) to district
attorneys general. The Commission also ruled that at the motion-to-dismiss stage, it
could not conclude that prosecutorial immunity applied to this situation or that the
statements at issue could not be found to be defamatory.

On September 12, 2018, the State filed a motion for permission to file an
interlocutory appeal, pursuant to Tennessee Rule of Appellate Procedure 9, to which
Detective Burns did not file a response. The Commission entered an order granting
permission for interlocutory appeal on November 21, 2018, certifying the following two
issues upon which the State had requested review:

1. Whether the absolute privilege (absolute official privilege) afforded
to State officials made in the course of their official duties extends to
district attorneys general.

2. Whether the absolute immunity afforded to district attorneys general
for actions taken as part of their prosecutorial function extends to
statements made to the media regarding pending criminal cases.

As to the second issue concerning prosecutorial immunity, the State in its motion for
interlocutory appeal before this Court stated that it “no longer seeks immediate review of
this question.” This Court entered an order granting interlocutory review on January 28,
2019, narrowing the “only issue on appeal” to the first issue above.

II. Issue Presented

Pursuant to Tennessee Rule of Appellate Procedure 9, “we are limited on appeal to
the questions certified by the trial court in its order granting permission to seek an
5
interlocutory appeal and in this Court’s order granting the appeal.” In re
Bridgestone/Firestone & Ford Motor Co. Litig., 286 S.W.3d 898, 902 (Tenn. Ct. App.
2008) (citing Tenn. R. App. P. 9). Inasmuch as the State had withdrawn the second of the
two issues certified for interlocutory appeal by the Commission, this Court directed in its
order granting interlocutory appeal that the sole issue on appeal would be as follows:

Whether the absolute privilege afforded to State officials for statements
made in the course of their official duties, as recognized in Jones v. State,
426 S.W.3d 50 (Tenn. 2013), extends to district attorneys general.

III. Standard of Review

The issue raised in this interlocutory appeal is a question of law. We review
questions of law de novo with no presumption of correctness. See Cunningham v.
Williamson Cty. Hosp. Dist., 405 S.W.3d 41, 43 (Tenn. 2013) (citing Mills v. Fulmarque,
Inc., 360 S.W.3d 362, 366 (Tenn. 2012)).

We note that the Commission decided in this case to proceed with the State’s
motion as a Rule 12.02(6) motion to dismiss the amended complaint despite the State’s
attachment of several exhibits to both its motion to dismiss the initial complaint and its
motion to dismiss the amended complaint. Generally, “[i]f matters outside the pleadings
are presented in conjunction with either a Rule 12.02(6) motion [to dismiss] or a Rule
12.03 motion [for judgment on the pleadings] and the trial court does not exclude those
matters, the court must treat such motions as motions for summary judgment and dispose
of them as provided in Rule 56.” Patton v. Estate of Upchurch, 242 S.W.3d 781, 786
(Tenn. Ct. App. 2007).

In determining that it was not necessary to convert the State’s motion to dismiss to
a motion for summary judgment, the Commission specifically found:

As all of these exhibits [attached to the State’s motion to dismiss] are either
attached as exhibits to the amended complaint or referred to in the amended
complaint, these exhibits, and the consideration of them by the undersigned
in conjunction with the motion to dismiss, do not convert the [State’s]
motion to dismiss to a motion for summary judgment.

Upon review, we determine that the Commission properly considered the items noted and
that such consideration did not necessitate converting the motion to dismiss to a motion
for summary judgment. See W. Express, Inc. v. Brentwood Servs., Inc., No. M2008-
02227-COA-R3-CV, 2009 WL 3448747, at *3 (Tenn. Ct. App. Oct. 26, 2009)
(delineating exceptions to the general rule, including “matters incorporated by reference
6
or integral to the claim, items subject to judicial notice, matters of public record, orders,
items appearing in the record of the case, and exhibits attached to the complaint whose
authenticity is unquestioned” (quoting Ind. State Dist. Council of Laborers v. Brukardt,
No. M2007-02271-COA-R3-CV, 2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19,
2009))).

As our Supreme Court has explained with regard to motions seeking dismissal of a
complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6):

A Rule 12.02(6) motion challenges only the legal sufficiency of the
complaint, not the strength of the plaintiff’s proof or evidence. The
resolution of a 12.02(6) motion to dismiss is determined by an examination
of the pleadings alone. A defendant who files a motion to dismiss “‘admits
the truth of all of the relevant and material allegations contained in the
complaint, but . . . asserts that the allegations fail to establish a cause of
action.’”

In considering a motion to dismiss, courts “‘must construe the
complaint liberally, presuming all factual allegations to be true and giving
the plaintiff the benefit of all reasonable inferences.’” A trial court should
grant a motion to dismiss “only when it appears that the plaintiff can prove
no set of facts in support of the claim that would entitle the plaintiff to
relief.” We review the trial court’s legal conclusions regarding the
adequacy of the complaint de novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)
(internal citations omitted).

IV. Executive Official Privilege

On the certified question before us, the State contends that General Pinkston, as a
district attorney general, should be afforded absolute immunity against defamation for the
statements he makes while performing his duties as a state official. While
acknowledging that our Supreme Court’s holding in Jones extends this absolute privilege
only to “cabinet-level executive officials,” see Jones, 426 S.W.3d at 58, the State relies
on the Jones holding to argue that this Court should extend the Executive Official
Privilege to state district attorneys general acting in the performance of their official
duties. Detective Burns contends that the Commission properly determined that the
Executive Official Privilege in Tennessee does not extend to district attorneys general.
As the Commission noted and the parties acknowledge, this question, as it is specific to
district attorneys general, is a matter of first impression in Tennessee. Upon careful
7
review of the applicable authorities, as well as the record in this case, we hold that the
Executive Official Privilege does not extend to district attorneys general in Tennessee.

As our Supreme Court has explained concerning defamation claims generally:

To establish a prima facie case of defamation in Tennessee, the
plaintiff must establish that: 1) a party published a statement; 2) with
knowledge that the statement is false and defaming to the other; or 3) with
reckless disregard for the truth of the statement or with negligence in failing
to ascertain the truth of the statement. See Restatement (Second) of Torts §
580 B (1977); Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978).
“Publication” is a term of art meaning the communication of defamatory
matter to a third person. Quality Auto Parts Co. v. Bluff City Buick Co.,
876 S.W.2d 818, 821 (Tenn. 1994).

Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571-72 (Tenn. 1999).

However, “[t]here are two types of privileges that can be raised as a defense in a
defamation case, absolute and qualified.” Simpson Strong-Tie Co. v. Stewart, Estes &
Donnell, 232 S.W.3d 18, 22 (Tenn. 2007). The Executive Official Privilege, at issue
here, is absolute, meaning that it is “a total immunity granted on the basis of the speaker’s
position or status.” See Jones, 426 S.W.3d at 53 (quoting Robert D. Sack, Sack on
Defamation: Libel, Slander and Related Problems § 8.1 (4th ed. 2012)). An absolute
privilege “is not defeated by the defendant’s malice, ill-will, or improper purpose in
publishing the defamatory communication.” Simpson Strong-Tie, 232 S.W.3d at 22
(contrasting an absolute privilege with a qualified or conditional privilege, which “may
be defeated if the defamatory publication was made with malice, ill-will, or for an
improper purpose”) (footnote omitted).

Our Supreme Court recently described the rationale for the development of
privileges providing defenses to defamation as follows in relevant part:

This appeal demonstrates the tension that exists between two
competing social commodities: reputation and information. Protecting the
first commodity are defamation lawsuits, which enable aggrieved
individuals to seek redress from false statements of fact that impugn their
reputations. In the 1966 case Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S. Ct.
669, 15 L. Ed. 2d 597 (1966) (Stewart, J., concurring), former United States
Supreme Court Justice Potter Stewart emphasized the importance of
protecting individuals from reputational harm, noting that: “The right of a
man to the protection of his own reputation from unjustified invasion and
8
 wrongful hurt reflects no more than our basic concept of the essential
dignity and worth of every human being—a concept at the root of any
decent system of ordered liberty.” The danger posed by defamation
lawsuits is that, if unrestrained, these lawsuits may obstruct access to the
second commodity, information. For this reason, courts have developed a
variety of privileges that provide defenses to defamation claims even when
the accused actually defamed the accuser. See generally Restatement
(Second) of Torts §§ 583-612 (1977).

Funk v. Scripps Media, Inc., 570 S.W.3d 205, 211 (Tenn. 2019) (proceeding to analyze
application of the fair report privilege as a qualified privilege).

In establishing, as a matter of first impression in Tennessee at the time, the
Executive Official Privilege, our Supreme Court stated the following in relevant part:

In Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434
(1959), the U.S. Supreme Court adopted an absolute privilege for federal
executive officials who publish defamatory statements in the performance
of their official duties. In a plurality opinion, Justice John Marshall Harlan
expressed the following rationale:

It has been thought important that officials of government
should be free to exercise their duties unembarrassed by the
fear of damage suits in respect of acts done in the course of
those duties—suits which would consume time and energies
which would otherwise be devoted to governmental service
and the threat of which might appreciably inhibit the fearless,
vigorous, and effective administration of policies of
government.

Id. at 571, 79 S. Ct. 1335. Justice Harlan further explained that the
invocation of the absolute privilege represented “an expression of a policy
designed to aid in the effective functioning of government.” Id. at 572-73,
79 S. Ct. 1335.

In Barr, the Court held that absolute privilege applied to the acting
director of a federal agency who had issued a press release about former
employees of the agency. The former employees contended that the
director’s press release contained defamatory statements. However, the
Supreme Court ruled that the director was protected by absolute privilege
when he issued the press release and dismissed the employees’ claims,
9
reasoning that communicating with the media by disseminating the press
release “was an appropriate exercise of the discretion which an officer of
that rank must possess if the public service is to function effectively.” Id. at
575, 79 S. Ct. 1335. The Barr Court acknowledged that conferring an
absolute privilege may lead to “occasional instances of actual injustice,” but
reasoned that such a price is “a necessary one to pay for the greater good.”
Id. at 576, 79 S. Ct. 1335. Previously, in Gregoire v. Biddle, Judge Learned
Hand offered a similar rationale for adopting absolute immunity for
government officials in the context of an allegedly unlawful arrest,
explaining that:

The justification for doing so is that it is impossible to know
whether the claim is well founded until the case has been
tried, and that to submit all officials, the innocent as well as
the guilty, to the burden of a trial and to the inevitable danger
of its outcome, would dampen the ardor of all but the most
resolute, or the most irresponsible, in the unflinching
discharge of their duties.

177 F.2d 579, 581 (2d Cir. 1949).

Immunizing government officials against harassment and giving
them the ability to perform their jobs “in the unflinching discharge of their
duties,” however, is not the only rationale that supports adopting an
absolute privilege against defamation for cabinet-level state executive
officials. Id. In his separate concurring opinion in Barr, Justice Hugo
Black explained that adopting an absolute privilege advanced significant
First Amendment free speech interests. “The effective functioning of a free
government like ours depends largely on the force of an informed public
opinion,” Justice Black explained. Barr, 360 U.S. at 577, 79 S. Ct. 1335
(Black, J., concurring). “This calls for the widest possible understanding of
the quality of government service rendered by all elective or appointed
public officials or employees.” Id. We agree that the public has a vital
interest in receiving information from public officials about the effective, or
ineffective, functioning and performance of the government.

Consistent with the Supreme Court’s holding in Barr, the
Restatement (Second) of Torts provides for an absolute privilege against
defamation claims for high-ranking federal and state executive officials.
See Restatement (Second) of Torts § 591 (1977) (“An absolute privilege to
publish defamatory matter concerning another in communications made in
10
the performance of his official duties exists for (a) any executive or
administrative officer of the United States; or (b) a governor or other
superior executive officer of a state.”). Comment c to Section 591 further
explains that “the absolute privilege stated in Clause (b) protects the
superior officers of the state governments, including at least the governor,
the attorney-general or the heads of state departments whose rank is the
equivalent of cabinet rank in the Federal Government.” Id. cmt. c.

“Like their federal counterparts, high-ranking elected state officials
and other officials of cabinet level or equivalent rank are generally held
entitled to an absolute privilege as to their defamatory communications
while exercising discretionary functions.” David Elder, Defamation: A
Lawyer’s Guide § 2:14 (2003). Many states have adopted the Restatement
(Second) of Torts’ absolute privilege against defamation claims for certain
executive officials. In Johnson v. Dirkswager, for example, the Minnesota
Supreme Court held that a state-level commissioner who allegedly uttered
defamatory comments to the public about an employee through a press
release was entitled to an absolute privilege. 315 N.W.2d 215 (Minn.
1982). Weighing the “public’s right to know [against] a defamed
individual’s right to redress,” the Minnesota Supreme Court ultimately
concluded that “the balance is to be struck in favor of the public’s right to
know” because the state employee’s interest must “yield[ ] to the needs of a
free, democratic society to be apprised of the conduct of the public business
by its public officials.” Id. at 221, 223. In Hackworth v. Larson, the
Supreme Court of South Dakota had reached an identical holding in a case
involving the South Dakota Secretary of State, who had issued press
releases stating that she had fired two employees. 83 S.D. 674, 165
N.W.2d 705 (1969). As the Hackworth court explained: “It is thought
desirable to encourage free and uninhibited dissemination of information
about governmental activities even if on occasions an individual suffers
harm thereby.” Id. at 709, 165 N.W.2d 705.

More recently, in Salazar v. Morales, the Texas Court of Appeals
adopted the absolute privilege reflected by the Restatement (Second) of
Torts as applied to the Texas Attorney General. 900 S.W.2d 929 (Tex.
App. 1995). Salazar involved a defamation claim asserted against the
Texas Attorney General regarding comments that he had made to the press
about a former employee’s termination. In affirming the Texas Attorney
General’s motion to dismiss, the Texas Court of Appeals determined that
the Texas Attorney General “ha[d] an absolute privilege to publish
defamatory statements in communications made in the performance of his
11
 official duties.” Id. at 932. The Salazar court also observed that: “All of
the state courts that have addressed the issue have agreed that an absolute
privilege . . . applies to state attorneys general.” Id., citing Kilgore v.
Younger, 30 Cal. 3d 770, 180 Cal. Rptr. 657, 640 P.2d 793, 797-98 (1982);
Little v. Spaeth, 394 N.W.2d 700, 706 (N.D. 1986); Matson v. Margiotti,
371 Pa. 188, 88 A.2d 892, 896 (1952); Levinsky v. Diamond, 151 Vt. 178,
559 A.2d 1073, 1078 (1989); Gold Seal Chinchillas, Inc. v. State, 69 Wash.
2d 828, 420 P.2d 698, 701 (1966); Morton v. Hartigan, 145 Ill. App. 3d
417, 99 Ill. Dec. 424, 495 N.E.2d 1159, 1164-65 (1986).

While the common law doctrine of absolute immunity remains the
majority rule, we note that other states afford executive officials only a
qualified privilege for statements made in the course of their official duties.
See [Robert D. Sack,] Sack [on Defamation: Libel, Slander and Related
Problems] § 8.2.5 [(4th ed. 2012)] (“A few states deny absolute immunity
to public officials altogether and grant a qualified privilege for statements
made in the course of official duties.”). The Hawaii Supreme Court, for
example, has rejected the application of an absolute privilege to state
officials, instead holding that such officials are entitled to a qualified
privilege. Towse v. Hawaii, 64 Haw. 624, 647 P.2d 696, 701-02 (1982).
Similarly, in Chamberlain v. Mathis, the Arizona Supreme Court adopted a
qualified privilege for the Director of the Arizona Department of Health
Services, reasoning in that case that the rationale supporting absolute
immunity is “countered by basic principles of equal justice.” 151 Ariz.
551, 729 P.2d 905, 912 (1986).

We note that “the overwhelming majority of cases have struck the
balance in favor of encouraging public officials to speak with complete
candor—and without fear of legal recourse—with respect to their official
duties.” Gold Seal, 420 P.2d at 701. Pennsylvania, for example, reaffirmed
the common law’s absolute privilege against defamation for all “high
public officials.” See Lindner v. Mollan, 544 Pa. 487, 677 A.2d 1194, 1196
(1996) (“This Court has never called into question, much less overruled, the
common law doctrine of absolute privilege for high public officials.”). We
agree with this longstanding majority rule. Accordingly, 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. Restatement (Second) of Torts § 591.

Jones, 426 S.W.3d at 53-56 (underlined emphasis added).
12
 In finding that the Executive Official Privilege did not apply to General Pinkston
as a district attorney general, the Commission considered, inter alia, the Tennessee
Supreme Court’s holding in Jones and stated in pertinent part:

Having very carefully considered the Jones case, with the
understanding that our Supreme Court has articulated the application of
absolute privilege to “high-ranking state executive officials,” and
considering the rationale set forth by [the State’s] counsel herein, and the
counterarguments made by [Detective Burns’s] counsel, the undersigned
does not perceive that he has the authority to conclude that our High
Court’s holding in Jones would extend to a person in the position of district
attorney general. While understanding and very much appreciating the hard
work, tireless dedication and vigorous advocacy by district attorneys
general across the State to protect our citizenry from crime, and while
recognizing the important public policy considerations advocated by [the
State], the Commission is thus far unconvinced that the categorization our
Supreme Court intended or would intend for the term “high-ranking State
executive officials” would embrace the position of district attorney general.
The Commission has considered the statutory duties of district attorneys
general as set forth in Tenn. Code Ann. § 8-7-103. Clearly, those duties
include the very important role of prosecution of crime, but the enumerated
duties appear to be absent responsibilities which would fall into the realm
of those responsibilities attributed to “high-ranking State executive
officials.” As but one example, the duties do not appear to include
establishment and enforcement of policies which would be applicable to the
State as a whole. It is for these reasons that the Commission respectfully
overrules that portion of the [State’s] motion which is based upon the claim
of absolute privilege.

The Commission thereby focused on whether the position of district attorney
general fit within the parameters of the privilege, which was designated in the Jones
holding as applying to “cabinet-level executive officials.” See Jones, 426 S.W.3d at 51,
56, 58. In its order, the Commission utilized the phrase, “high-ranking State executive
officials.” The term, “high-ranking” was employed by the Jones Court in further
explanation of its holding concerning cabinet-level officials. See id. at 58 (“This
privilege ensures that high-ranking state executive officials will enjoy ‘complete freedom
of speech when discharging their duties.’” (quoting Robert D. Sack, Sack on Defamation:
Libel, Slander and Related Problems § 8.2 (4th ed. 2012))). In Jones, our Supreme Court
adopted the position taken in § 591 of the Restatement (Second) of Torts (1977), which
provides:
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 An absolute privilege to publish defamatory matter concerning another in
communications made in the performance of his official duties exists for

(a) any executive or administrative officer of the United States; or
(b) a governor or other superior executive officer of a state.

We note that in the area of identifying privileges that may be employed in defense
of a defamation claim, the Tennessee Supreme Court again adopted the position of the
Restatement (Second) of Torts in a recent decision by adopting the “modern version” of
the fair report privilege set forth in the Restatement. See Funk, 570 S.W.3d at 217 (“[I]n
keeping with our earlier decisions concerning defamation law, we adopt the approach of
the Restatement (Second) of Torts section 611.”) (citing Jones, 426 S.W.3d at 56 (for the
Court’s adoption of § 591 “as governing the executive and administrative officers’
privilege”); Simpson Strong-Tie, 232 S.W.3d at 22-24 (for the Court’s adoption of § 586
“as governing the attorneys’ privilege”). In keeping with our High Court’s approval to
date of the Restatement (Second) of Torts as it applies to this area of the law, we examine
the position taken in the Restatement as to district attorneys general.

Concerning the Executive Official Privilege set forth in § 591(b), the Restatement
explains in an official comment to the section:

c. All of the state courts that have considered the question have agreed
that the absolute privilege stated in Clause (b) protects the superior
officers of the state governments, including at least the governor, the
attorney-general or the heads of state departments whose rank is the
equivalent of cabinet rank in the Federal Government. A good
number of the States have gone further, and have extended the
absolute privilege to state officers of various ranks below that of
cabinet level. The greater number of the state courts have not made
the extension to the point of the federal rule and some have
expressly confined the absolute privilege to superior officers of the
States. This leaves the inferior state officers in these States with
only a conditional privilege, as stated in § 598A.

The Restatement thus notes that in a majority of state jurisdictions, state officers who are
not at cabinet or high-ranking level are entitled to the defense of a conditional privilege
but not an absolute privilege. Section § 598A of the Restatement provides:

An occasion makes a publication conditionally privileged if an inferior
administrative officer of a state or any of its subdivisions who is not
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 entitled to an absolute privilege makes a defamatory communication
required or permitted in the performance of his official duties.

In its illustrations to § 591, the Restatement specifically addresses the situation of a state
attorney general versus district attorneys general:

3. A, the Attorney-General of State X, issues a press release explaining
the delay of his office in prosecuting certain offenses against the
State, in the course of which he accuses B of suppressing evidence
that might lead to a conviction. A is absolutely privileged, and is not
liable to B.

4. The same facts as in Illustration 3, except that A is not Attorney-
General, but is a local district attorney. A has only a conditional
privilege, as stated in § 598A, even if it is found that the press
release is within the scope of his official duties.

In support of its position in this case, the State correctly tracks our Supreme
Court’s adoption of the Restatement (Second) of Torts in this area and the distinction
made in the Restatement between an absolute privilege for state attorneys general and a
conditional privilege for district attorneys general. The State then asserts that this Court
should follow the minority of jurisdictions addressing this question by extending the
absolute privilege to state district attorneys general in Tennessee. Upon careful
consideration, we disagree.

In adopting the Executive Official Privilege, the Jones Court quoted the Texas
Court of Appeals as stating: “All of the state courts that have addressed the issue have
agreed that an absolute privilege . . . applies to state attorneys general.” Jones, 426
S.W.3d at 55 (quoting Salazar v. Morales, 900 S.W.2d 929, 932 (Tex. Ct. App. 1995))
(citations to other jurisdictions omitted here but included in quotation above). The Jones
Court also noted that in comment c to § 591, the Restatement of Torts listed state
attorneys general as among those high-ranking officers entitled to the absolute privilege
when acting within the scope of their official duties. Jones, 426 S.W.3d at 55. However,
because the issue before our Supreme Court in Jones was whether a cabinet-level state
commissioner was entitled to the Executive Official Privilege, the Court did not directly
address whether the privilege would apply to the state attorney general in Tennessee.

On appeal in this action, the State contends that the Executive Official Privilege
should apply to both the state attorney general and to district attorneys general. We must
emphasize that the question certified for interlocutory appeal does not ask this Court to
decide whether the Executive Official Privilege applies to the state attorney general. We
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therefore make no holding in this regard. See Tenn. R. App. P. 9; In re
Bridgestone/Firestone, 286 S.W.3d at 902 (explaining that on interlocutory appeal, this
Court is limited to the question or questions certified for interlocutory review). However,
assuming, arguendo, that the Executive Official Privilege, as recognized in Jones, were
to be found to apply to the state attorney general, we still cannot agree with the State’s
argument in this case that such an extension would extend to district attorneys general in
Tennessee as well.

The State posits that for the public policy reasons that initially engendered the
Executive Official Privilege, district attorneys general should enjoy absolute immunity,
arguing specifically that the absolute privilege would facilitate (1) the need for district
attorneys general to communicate while exercising their duties without fear of facing
litigation, (2) the public’s right to be informed regarding the prosecution of crimes and
the activities of the district attorney’s office, and (3) the need for district attorneys
general to focus their time on official duties without spending time defending defamation
lawsuits. The State’s argument in this regard reflects our Supreme Court’s recognition of
“the tension that exists between two competing social commodities: reputation and
information.” See Funk, 570 S.W.3d at 211; see also Jones, 426 S.W.3d at 56 (“We
recognize that in some cases, the application of an absolute privilege to cabinet-level state
officials may leave aggrieved individuals without a remedy.”). See generally Barr v.
Matteo, 360 U.S. 564, 571 (1959). However, in Jones, our Supreme Court determined
that this balance weighed toward the commodity of information only insofar as the Court
adopted absolute immunity for “cabinet-level executive officials.” See Jones, 426
S.W.3d at 58.

Upon adopting the Executive Official Privilege, the Jones Court proceeded to
analyze whether the TDOC Commissioner, who had made the statements at issue in that
case, was an official of such rank that his statements, if made within the scope of his
official duties, would be protected by the privilege. The Court stated in relevant part:

In Tennessee, commissioners serve as the heads of state departments
and function as part of the “Governor’s Cabinet.” These officials formulate
official policy and exercise significant supervisory authority in conducting
state business. Such officials must have the flexibility to make important
decisions free from fear that they will have to defend themselves from
lawsuits. Gregoire [v. Biddle], 177 F.2d [579,] 581 [(2nd Cir. 1949)].
Uninhibited communication with the public about governmental affairs is
essential and must be protected. Barr, 360 U.S. at 577, 79 S.Ct. 1335
(Black, J., concurring). Because providing cabinet-level executive officials
with anything less than absolute immunity from defamation claims would
also force such officials to spend time responding to lawsuits rather than
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 discharging their public duties, see Gregoire, 177 F.2d at 581, we hold that
providing absolute immunity to such officials is appropriate.

Id. at 56 (footnotes omitted). The Jones Court thus found that a state commissioner was
at the high-ranking level of “formulat[ing] official policy.” Id.

In reaching its decision concerning the inapplicability of the Executive Official
Privilege in this case, the Commissioner considered the statutory duties of district
attorneys general. Tennessee Code Annotated § 8-7-103 (2016) provides:

Each district attorney general:

(1) Shall prosecute in the courts of the district all violations of the state
criminal statutes and perform all prosecutorial functions attendant
thereto, including prosecuting cases in a municipal court where the
municipality provides sufficient personnel to the district attorney
general for that purpose;

(2) Shall prosecute in the federal court all criminal cases removed from
a state court in the district to any inferior court;

(3) May cooperate and assist, upon the request or direction of the
attorney general and reporter, in the bringing, prosecution, defense,
preparation, and trial of all cases in the circuit and chancery courts in
which the attorney general and reporter is required to appear for the
protection of the state or the public interest;

(4) Shall give an opinion, without charge, whenever called upon by any
county officer in the district, upon a question of criminal law relating
to the duties of the county officer’s office;

(5) Shall submit to the office of executive director for the district
attorneys general conference within ninety (90) days after the end of
each fiscal year, a written report specifying:

(A) Each source from which funds were received by the office of
the district attorney general during the fiscal year;

(B) The amount of funds received from each source; and

(C) The disposition of such funds;
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 (6) Shall have discretion in the performance of duties and
responsibilities in the allocation of resources available to such
district attorney general, any other law notwithstanding; and

(7) Shall have authority to delegate the foregoing duties and
responsibilities to an assistant district attorney general.

We determine that the Commission properly found that, while vital to the public, the
statutory duties of district attorneys general do not include formulating official policy at
the state level.

In support of its position, the State relies in part on a handful of state appellate
decisions from other jurisdictions wherein those states have extended an absolute official
privilege to district attorneys general. See Bianchi v. McQueen, 58 N.E.3d 680, 702 (Ill.
App. Ct. 2016); Foster v. Pearcy, 387 N.E.2d 446, 449 (Ind. 1979); Sims v. Barnes, 689
N.E.2d 734 (Ind. Ct. App. 1997); Candelaria v. Robinson, 606 P.2d 196, 199 (N.M. Ct.
App. 1980); Pickering v. Sacavage, 642 A.2d 555, 559 (Pa. Commw. Ct. 1994);
O’Connor v. Donovan, 48 A.3d 584, 592 (Vt. 2012). As the State acknowledges, these
authorities constitute persuasive rather than controlling authority for Tennessee state
courts. Having considered these authorities, we are not persuaded that this minority view
should sway us from the confines of the Tennessee Supreme Court’s adoption of the
Executive Official Privilege as limited to cabinet-level or high-ranking state executive
officials. See Jones, 426 S.W.3d at 56 n.7 (“We do not decide in this case whether the
privilege of absolute immunity extends beyond cabinet-level officials.”).

Finally, within this interlocutory appeal, the State has at no time requested
certification of a question as to whether district attorneys general in Tennessee should be
afforded a conditional privilege as state officials. See Simpson Strong-Tie Co., 232
S.W.3d at 22 (“[A] qualified or conditional privilege is one that may be defeated if the
defamatory publication was made with malice, ill-will, or for an improper purpose.”).
We will therefore issue no holding in this decision concerning whether district attorneys
general should be afforded a conditional privilege due to their status as state officials.
See Tenn. R. App. P. 9; In re Bridgestone/Firestone, 286 S.W.3d at 902. We note that
depending on the situation, other privileges or immunities may apply to protect a district
attorney general’s statements made within the scope of his or her official duties as a
prosecutor, such as absolute prosecutorial immunity for “conduct intimately associated
with the judicial process,” see Morton v. State, No. M2008-02305-COA-R3-CV, 2009
WL 3295202, at *3 (Tenn. Ct. App. Oct. 13, 2009), or the absolute immunity of the
litigation privilege for “statements made in the course of judicial proceedings,” see Jones
v. Trice, 360 S.W.2d 48, 51 (Tenn. 1962). We emphasize that within the parameters of
18
this interlocutory appeal, we have reached no conclusion as to whether General Pinkston
made the statements at issue within the scope of his official duties.

V. Conclusion

For the reasons stated above, we hold that the Executive Official Privilege, the
absolute privilege afforded to state executive officials for statements made in the course
of their official duties, as recognized in Jones v. State, 426 S.W.3d 50 (Tenn. 2013), does
not extend to district attorneys general. We therefore affirm the Commission’s judgment
in this regard. This case is remanded to the Commission, pursuant to applicable law, for
further proceedings consistent with this opinion and collection of costs assessed below.
The costs on appeal are assessed against the appellant, the State of Tennessee.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

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