The Law Office of Daniel A. Horwitz, Esq.

The Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance “is in contempt of court,” a senior Chancery Court judge has found.  The finding arose from the Registry’s willful collection of $64,000.00 in PAC fees in violation of a permanent injunction prohibiting it from doing so.  “[T]he Registry shall refund all improperly collected registration fees, obtained through the enforcement of Tenn. Code Ann. §2-10-121 in violation of this Court’s injunction, within 15 days,” the Court’s order reads.  It further “ORDERED that additional coercive fines will be considered if defendant fails to refund the registration fees as ordered above[.]”

The contempt proceeding at issue arose from an injunction secured by the election reform advocacy group Tennesseans for Sensible Election Laws in 2018.  Based in part on misconduct by the Tennessee Attorney General’s Office, that injunction was thereafter upheld on appeal by the Tennessee Court of Appeals, which additionally concluded that a mid-litigation statutory amendment to the underlying statute did not moot the case.  A subsequent order issued in December 2021 opted to keep the injunction in place, finding that the Registry had “failed to allege, or meet, the ‘significant change in the law’ standard for relief from prospective enforcement of a final judgment containing an injunction.”

In advance of the contempt trial, discovery revealed that despite knowing that the court’s permanent injunction remained unmodified, Registry officials had opted to begin enforcing the enjoined statute again at the recommendation of the Tennessee Attorney General’s Office.  It additionally revealed that the Registry “expected” a contempt petition to result from its renewed enforcement.  In defense of its violation of a permanent injunction, though, the Registry asserted that “sovereign immunity bars” a contempt petition against the government “as a matter of law”—a position that would mean the government may violate court orders without consequence.  “[T]his simply cannot be[,]” Senior Judge Wright concluded in an April 6 2022 order, noting that such a result would render the separation of powers doctrine “a nullity” and reduce the judiciary “to a paper tiger with the authority to declare an action of the legislative or executive branch to be unconstitutional but an inability to enforce its judgment.”

Upon review of the Registry’s behavior, Judge Wright concluded that “[t]he injunction at issue was lawful,” that it “is clear and unambiguous,” and that the Registry’s “conscious choice” and “deliberate” decision to enforce the enjoined statute was “willful.”  Accordingly, “the Court FINDS that the defendant willfully violated this Court’s injunction by a preponderance of the evidence,” Judge Wright’s order reads.

“While the Tennessee Attorney General’s lawless approach to court orders and constitutional rights continues unabated, so does TSEL’s commitment to vindicating the rights of Tennesseans to participate in elections without illicit governmental interference,” said Daniel A. Horwitz, who represented TSEL with attorneys Jamie Hollin and Lindsay Smith.  “Court orders are not voluntary—even for the state officials who wrongly believe themselves to be above the law.  We look forward to ensuring the return of $64,000.00 that the Tennessee Attorney General’s Office instructed the Registry to steal.”

The Registry was unsuccessfully represented by attorneys Alex Rieger, Matt Jones, and Janet Kleinfelter, all of the Tennessee Attorney General’s Office.  Contact them at @TNattygen.

Read the Chancery Court’s Memorandum Opinion and Order on Plaintiff’s Petition for Contempt here: https://horwitz.law/wp-content/uploads/Memorandum-Opinion-and-Order-on-Plaintiffs-Petition-for-Contemp-1.pdf

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Horwitz Law has successfully represented and advised numerous state and local elected officials, candidates for public office, PACs and political organizations, county political parties, and other political law clients across Tennessee regarding campaign finance, election, and political law issues. Horwitz Law has also successfully represented clients in landmark election-related litigation concerning local, state, and federal election law. Daniel A. Horwitz—Horwitz Law’s founding member—formerly served as election counsel for the Tennessee Democratic Party, and he currently serves as General Counsel for Tennesseans For Sensible Election Laws, an election-reform oriented multicandidate political campaign committee and advocacy group.

If you are seeking campaign finance, election law, or political law assistance, you can purchase a consultation from Horwitz Law here.

In the last chapter of year-long saga, the dismissal of Déjà Vu Showgirls’s SLAPP-suit against Linda Schipani—previously dismissed outright for failure to state any cognizable claim for relief—has been unanimously upheld by the Sixth Circuit Court of Appeals. Said Daniel Horwitz, Schipani’s attorney:

“Deja Vu has lost the same case so many times it’s difficult to keep up, but the end result is always the same: Complete vindication for Linda Schipani—who will continue to be a successful, respected businesswoman despite the best efforts of her misbehaving neighbor—and a total loss for Déjà Vu, which has become synonymous with frivolous litigation and failure.  Déjà Vu and its contractors should take this resounding loss as a lesson and stop filing baseless SLAPP-suits against their neighbors for exercising their First Amendment rights going forward.”

Déjà Vu Showgirls is a strip club located on Church St. in Nashville.  In an effort to enhance its customer experience, one of the services that Déjà Vu (briefly) provided its customers was valet parking: A service that ticked off its adjacent neighbors when its valet contractor—a company called “The Parking Guys”—trespassed on its neighbors’ property, parked vehicles in neighboring businesses’ parking lots without permission, obstructed road access, and blocked their ingress and egress.  The fact that Déjà Vu carried on its disruptive valet parking operation both without a valid permit to operate and outside of permitted hours didn’t help matters, either, leading to a permanent valet permit for the strip club being denied by city officials.

Unsatisfied that it could not continue to provide valet services to its customers, Déjà Vu and its valet contractor convinced themselves that they had been the victims of an elaborate anti-stripper conspiracy.  Thus, to vindicate their (imaginary) victimization, Déjà Vu and The Parking Guys took to state and federal court, where they sued Metro’s Traffic and Parking Commission, Metro Councilman Freddie O’Connell, and two of Déjà Vu’s neighbors—Linda Schipani and Lee Molette—asserting laughably ridiculous claims.  The claims that Déjà Vu and The Parking Guys filed against their neighbors over absolutely immunized testimony that their neighbors had given to the Traffic and Parking Commission, in particular, were legally baseless for approximately half a dozen reasons, and all of them repeatedly failed accordingly.

When the dust settled, Déjà Vu lost essentially the same claims before one Commission and the following five separate courts:

1. The Davidson County Chancery Court, which denied all claims and held further that: “The Petitioner asserts before this Court that the Councilman and others who spoke against the permit are actually opposing the permits due to the adult nature of the Déjà Vu business, but the administrative record contains no evidence that this is the case, and indeed the record reflects the Petitioner did not raise this concern to the Commission.”
2. The Tennessee Court of Appeals, which affirmed the Chancery Court’s denial, ordered The Parking Guys to pay Schipani’s appellate costs, and held further that “there was material evidence to support the Commission’s decision, and that its decision was not arbitrary.”
3. The Tennessee Supreme Court, which kept the Tennessee Court of Appeals’ decision in place and denied any further effort to appeal in state court;
4. The U.S. District Court for the Middle District of Tennessee, which also dismissed all claims alleged due to the Plaintiffs’ failure even to state a legally cognizable claim for relief; and
5. The U.S. Court of Appeals for the Sixth Circuit, which similarly affirmed the District Court’s dismissal of all claims alleged on the basis that—as Mrs. Schipani emphasized in her briefing—“[t]he complaint does not allege membership in a protected class, or that there was any discriminatory animus on account of class membership. . . .  In fact, the complaint contains no indication of any class membership at all.  Plaintiffs therefore failed to state a claim under § 1985 against any of the defendants in their complaint.”

The deadline to appeal to the U.S. Supreme Court having expired yesterday, Déjà Vu’s SLAPP-suit and its utterly failed efforts to sue its Councilman and neighbors over testimony that the strip club did not like have officially come to an ignominious end.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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