The Law Office of Daniel A. Horwitz, Esq.

June 20, 2022

Tennessee Court of Appeals Affirms Trial Court Order Invalidating School Board Censorship Clause in Ex-Director Shawn Joseph’s Severance Agreement

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In a pair of separate opinions issued today, the Tennessee Court of Appeals affirmed a ruling by Davidson County Chancery Court Judge Ellen Hobbs Lyle in favor of Plaintiffs Amy Frogge, Fran Bush, and Jill Speering, all represented by Horwitz Law, PLLC.  The ruling arose out of a lawsuit filed against Metro and ex-MNPS Director Shawn Joseph regarding the legality of the School Board Censorship Clause contained in Joseph’s severance agreement.  In a September 2020 Memorandum Order, Chancellor Lyle struck down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.

Among other things, the School Board Censorship Clause prohibited elected School Board members even from truthfully criticizing “Dr. Joseph and his performance as Director of Schools.”  Upon review of it, Chancellor Lyle ruled that the clause violated the Plaintiffs’ First Amendment rights, unlawfully prohibited them from speaking honestly with their constituents, and violated established Tennessee public policy.  As a result, Chancellor Lyle invalidated the clause as unenforceable and ordered Metro and Joseph to pay the Plaintiffs’ “reasonable costs and attorney’s fees,” which were pledged to charity.  Thereafter, both Metro and Joseph appealed.

Upon review of Chancellor Lyle’s ruling, the Court of Appeals unanimously affirmed in a pair of separate opinions.  By the time the case reached appeal, the Defendants had all but conceded that what they had done was illegal and attempted to use that concession as a basis for avoiding a judgment.  In their majority opinion, Judges Carma Dennis McGee and Andy Bennett noted that: “The fact that the defendants admit in their briefs that their contract was unlawful should not prevent Plaintiffs from having standing to challenge the contract in court.”  In a separate concurring opinion, Judge McBrayer undertook a wider review of several issues that the majority determined Metro and Joseph had waived through deficient briefing, and he held that:

“Here, the chancery court concluded that there was ‘no material dispute that the Nondisparagement Clause contained in the Severance Agreement . . . does not promote a compelling governmental interest, that it is unconstitutional, and that is an overbroad and unenforceable speech restriction.’ Based on my review of the record, I conclude the same.”

“This is a landmark victory on behalf of both elected officials’ free speech rights and citizens’ right to hear from their elected representatives,” said attorney Daniel A. Horwitz, who represented all three Plaintiffs along with co-counsel Lindsay Smith.  “Metro and Joseph should be ashamed of their efforts to gag elected officials and prevent them from speaking honestly with their constituents about issues of tremendous public importance, and their illegal attempt to do so should serve as a costly warning to other government officials to think twice before violating the First Amendment.”

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As part of Horwitz Law’s First Amendment practice, 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.  If you are seeking First Amendment or political law assistance, you can purchase a consultation from Horwitz Law here.

Posted in: Appeals, Constitutional Law, Daniel Horwitz, Election Law, Litigation
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May 30, 2022

In Victory for Horwitz Law PLLC Client, Tennessee Supreme Court Rules that the Tennessee Bureau of Investigation Lacks Authority to Violate Court Orders

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“The determination of whether an offense is eligible for expunction is an obligation entrusted to courts, not the TBI[,]” the Tennessee Supreme Court has ruled.  Accordingly, “the TBI lacked authority to refuse to comply” with a final and unappealed expungement order that no statute “authorize[d] the TBI to disregard or revise[.]”  The Tennessee Supreme Court’s unanimous opinion powerfully vindicates expungement rights under Tennessee law, the right of Tennesseans to sue the government for acting illegally, and citizens’ right to demand that the government comply with court orders.

The case arose out of a years-old expungement order that was entered by agreement of a District Attorney and approved by a judge following a diversionary plea agreement.  When such an expungement order is entered, Tennessee law obligates the Tennessee Bureau of Investigation to process it within sixty days of receipt.  In lieu of complying with the court’s order, though, the TBI opted to violate it, believing that the order was wrong.  “But no statute grants the TBI authority to independently review and decline to comply with a final expunction order it considers erroneous,” the Tennessee Supreme Court explained.

Along the way to reaching this holding, the Tennessee Supreme Court forcefully affirmed Tennesseans’ rights to sue the government for acting illegally.  As relevant to the case, in 2018, the Tennessee General Assembly enacted a critical new statute—Tennessee Code Annotated § 1-3-121—that established the right of “any affected person” to sue the government “regarding the legality or constitutionality of a governmental action.”  In full, Tenn. Code Ann. § 1-3-121 provides that:

“Notwithstanding any law to the contrary, a cause of action shall exist under this chapter for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.  A cause of action shall not exist under this chapter to seek damages.”

Despite the clarity of this statute, the Tennessee Attorney General’s Office spent the next several years arguing in bad faith that the statute was meaningless; that it did not mean what it said; and that it did not permit any lawsuits to be filed against state government at all.  But “[t]he General Assembly clearly and unmistakably waived sovereign immunity by enacting Tennessee Code Annotated section 1-3-121,” the Tennessee Supreme Court explained, and “[t]he plain meaning of this text expressly recognizes the existence of causes of action ‘regarding the legality or constitutionality of a governmental action’ that seek declaratory or injunctive relief.”  Accordingly, the Tennessee Supreme Court ruled that the Plaintiff’s lawsuit against the TBI and its Director for willfully violating a court order was permissible, and it ordered a lower court to grant the Plaintiff’s claim for injunctive and declaratory relief, which the court had to that point denied.

“We appreciate the Tennessee Supreme Court unanimously vindicating our client’s expungement rights,” said Horwitz Law PLLC attorney Daniel A. Horwitz, who represented the Plaintiff along with co-counsel Lindsay Smith.  “However, we are disturbed that the Tennessee Attorney General’s Office had to be reminded by a court yet again that its job is to uphold the law, not to encourage government officials to violate it.  Having engaged in lawless behavior that would land any other contemnor in jail and that would subject any other attorney to professional discipline, we hope that Director Rausch and Attorney General Slatery won’t need to be reminded again.”

The TBI and its Director, David Rausch—who asserted the government’s entitlement to violate court orders—were unsuccessfully represented in the case by attorneys Rob Mitchell (BPR 32266), Miranda Jones (BPR 36070), and Mallory Schiller (36191) of the Tennessee Attorney General’s Office.  In advance of the Tennessee Supreme Court’s unanimous reversal, they opposed appellate review in the case on the basis that “there is no probability of reversal.”

The Parties’ oral argument in the case can be viewed here.  The Plaintiff’s briefing in the case is linked below.

Principal Brief: https://horwitz.law/wp-content/uploads/Principal-Brief-of-Appellant-Stampfiled.pdf

Reply Brief: https://horwitz.law/wp-content/uploads/Appellants-Reply-Brief.pdf

Read the Tennessee Supreme Court’s unanimous opinion in Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279 v. David B. Rausch, Director of the Tennessee Bureau of Investigation, and Tennessee Bureau of Investigation, authored by Justice Sharon G. Lee, here: https://www.tncourts.gov/sites/default/files/recipient.of_.finalexp.3279.opn_.pdf

If you are seeking expungement or appellate assistance, you can purchase a consultation from Horwitz Law here.

Posted in: Appeals, Constitutional Law, Daniel Horwitz
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April 15, 2022

Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance Held In Contempt, Ordered to Return $64,000.00 It Collected in Willful Violation of Permanent Injunction

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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.

Posted in: Constitutional Law, Daniel Horwitz, First Amendment, Litigation
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March 30, 2022

Horwitz Law, PLLC Clients the Nashville Area Chamber of Commerce, Save Nashville Now Prevail in Court of Appeals Litigation Over Invalid Referendum

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Bringing a multi-year saga to its likely conclusion, the Tennessee Court of Appeals has unanimously held that a referendum petition filed by an amorphous entity calling itself “4 Good Government” was fatally defective because it illicitly prescribed multiple election dates, rather than complying with the straightforward “prescribe a date” requirement established by Nashville’s Metropolitan Charter.  The Court of Appeals additionally held that the underlying litigation was moot, precluding any relief from being awarded at this juncture anyhow.  In a pair of amicus briefs filed on behalf of Horwitz Law, PLLC clients the Nashville Area Chamber of Commerce and Save Nashville Now—which the Court of Appeals’ opinion quoted at length—attorneys Daniel A. Horwitz and Lindsay Smith had advanced both positions.  Horwitz Law, PLLC’s clients advanced prevailing arguments as amici curiae before the Davidson County Chancery Court as well.

“As the Nashville Area Chamber of Commerce and Save Nashville Now asserted in their respective amicus briefs—upon which the Court of Appeals’ opinion relied extensively—the Davidson County Election Commission lacks authority to violate clear provisions of the Metropolitan Charter in an ill-advised effort to apply new and different rules to a favored petitioner, and it also lacks authority to reschedule election dates in violation of applicable state and local law,” said Horwitz Law, PLLC principal Daniel A. Horwitz—who represented both groups alongside Horwitz Law, PLLC attorney Lindsay Smith.  “Compliance with straightforward and longstanding legal requirements is not voluntary, and ignoring provisions of the Metro Charter while depriving opponents of fair notice because a bare majority of the Election Commission supports a measure is impermissible.  The Court of Appeals’ opinion is a complete win for both the Nashville Chamber and Save Nashville Now and a total loss for the DCEC, and today’s ruling should be the end of the road for this ill-conceived litigation and egregious waste of taxpayer funds.”

Read the Tennessee Court of Appeals’ unanimous opinion in Case No. M2021-00723-COA-R3-CV here: https://www.tncourts.gov/sites/default/files/davidson.county.election.commission.opn_.pdf

Read the Brief of Amicus Curiae the Nashville Area Chamber of Commerce (asserting a petition defect) here: https://horwitz.law/wp-content/uploads/Brief-of-Amicus-Curiae-Nashville-Area-Chamber-of-Commerce.pdf

Read the Brief of Amicus Curiae Save Nashville Now (asserting mootness) here: https://horwitz.law/wp-content/uploads/Save-Nashville-Now-Amicus.pdf

Selected media coverage regarding the ruling appears below:

The Tennessean: State appeals court rules against election commission in referendum case, legal costs top $720K

The Nashville Post: Appeals court strikes another blow to anti-tax effort

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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.

Posted in: Appeals, Daniel Horwitz, Election Law
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January 1, 2022

Happy New Year to the Tennessee Public Participation Act!

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By Daniel A. Horwitz (Republished from the Tennessee Free Speech Blog):

In 2019, Tennessee’s free speech law underwent a sea change.  The Tennessee Public Participation Act—Tennessee’s first-ever meaningful anti-SLAPP law—took effect, ushering in a host of critical protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts.

Heading into its third year of existence, it is clear at this point that the Tennessee Public Participation Act is working.  If 2021 is a sign of things to come, Tennessee’s free speech law is also headed in the right direction.

Building on a series of important wins in 2020, the results that the TPPA produced in 2021 cannot be overstated.  To list just a few of them:

In June of 2021, the Tennessee Court of Appeals affirmed an anti-SLAPP judgment—the first ever anti-SLAPP judgment issued in Tennessee—in favor of a Wilson County woman who posted a negative Yelp! review.  The end result was that the thin-skinned doctor who baselessly sued her was ordered to pay a cumulative $75,000.00 cost, fee, and sanctions award for his SLAPP-suit across a pair of cases filed in Wilson County Circuit and General Sessions Court.

In March of 2021—and then again in July 2021—Circuit Courts in separate counties affirmed the constitutionality of the Tennessee Public Participation Act over a Plaintiff’s constitutional challenge.

In December of 2021, the Tennessee Court of Appeals signaled that it would treat the TPPA’s statutory discovery stay seriously, entering an immediate order staying discovery pending appeal upon a defendant’s application for extraordinary appeal on the matter.

Also in December of 2021, SmileDirectClub’s multi-billion dollar SLAPP-suit against NBC Universal was dismissed under the TPPA.

Also in December of 2021, the Circuit Court of Overton County granted several public school parents’ TPPA petitions to dismiss a SLAPP-suit filed by a public school teacher who had been lawfully accused of sexual predation and harassment against students.

Also in December of 2021, the Tennessee Court of Appeals affirmed both an anti-SLAPP judgment and a $39,000 fee and sanctions award issued against a congressional candidate who sued a trio of activists for criticizing him on Facebook.  The Court of Appeals additionally issued appellate sanctions against the candidate for filing a frivolous appeal.

There were some setbacks for the TPPA, though.  Most prominently, the U.S. District Court for the Middle District of Tennessee held for the first time that the Tennessee Public Participation Act does not apply in federal court—one of many reasons why a federal anti-SLAPP law remains essential.  The media’s nasty habit of covering SLAPP-suits only at their inception and hyping the liability that a defendant faces—then failing to follow up once a SLAPP-suit predictably fails—has not improved, either, even when media defendants themselves are the targets.

All considered, however, 2021 was a tremendous year for Tennessee’s nascent anti-SLAPP law.  Here’s to more wins—and more protected speech—in 2022.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.

Posted in: Constitutional Law, Daniel Horwitz, Defamation, First Amendment, Tennessee Public Participation Act
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October 2, 2021

Following Unanimous Ruling by the Tennessee Court of Appeals, Horwitz Law, PLLC Client Kenneth Mynatt Wins Malicious Prosecution Appeal

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In an opinion issued September 28, 2021, the Tennessee Court of Appeals has ordered that Horwitz Law, PLLC appellate client Kenneth Mynatt’s malicious prosecution and civil conspiracy claims be reinstated.  The Court’s unanimous ruling, authored by Judge Thomas R. Frierson, explains that the retirement of a criminal charge does not categorically preclude a subsequent civil malicious prosecution claim under Tennessee law, because the retirement of a criminal charge is not necessarily a compromise resolution or a final termination of proceedings.  The ruling creates important and controlling precedent in Tennessee regarding when civil malicious prosecution claims may be filed after criminal charges have been retired.  Accordingly, Mr. Mynatt’s lawsuit will be allowed to move forward.

“In this matter, Mr. Mynatt asserted unambiguously in his complaint that he had refused all ‘deals’ or agreements with the District Attorney concerning his criminal charges,” the Court’s opinion explains.  “Mr. Mynatt claimed that he was innocent of the charges and that the District Attorney was made aware of his claim that the evidence against him had been falsified.”  “Significantly, the retirement of the charges brought against Mr. Mynatt [also] was not the final disposition or termination of those charges,” and “Mr. Mynatt maintained his innocence regarding the charges throughout the complaint.”  Further, the Court’s opinion explains, “if the charges against him were dismissed because of a lack of proof of his guilt, then such a termination would clearly be as favorable as” other dispositions that may sustain a malicious prosecution claim.  “We therefore conclude that the trial court’s judgment granting Defendants’ motion to dismiss must be reversed.”

Malicious prosecution claims are notoriously difficult to win in Tennessee.  They are not impossible, however, and allegations like Mr. Mynatt’s can sustain them.  “We are proud to have represented Mr. Mynatt on appeal and to have won him a unanimous reversal that permits his claims to move forward,” said Horwitz Law, PLLC principal Daniel A. Horwitz, who represented Mr. Mynatt along with Horwitz Law attorney Lindsay Smith.

Read the Tennessee Court of Appeals’ unanimous ruling in Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39 et al., here.  Mr. Mynatt’s briefing in the case is available below.

– Principal Brief of Appellant Kenneth J. Mynatt

– Reply Brief of Appellant Kenneth J. Mynatt

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As part of Horwitz Law, PLLC’s appellate practice, Horwitz Law has successfully represented appellate clients in high-stakes, high-profile appeals before the United States Court of Appeals for the Sixth Circuit, the Tennessee Supreme Court, the Tennessee Court of Appeals, the Tennessee Supreme Court Special Workers’ Compensation Appeals Panel, and in administrative agency appeals to Davidson County Chancery Court.  Horwitz Law also provides amicus curiae representation in both state and federal appellate courts.  If you are seeking appellate representation, you can purchase a consultation from Horwitz Law here.

Posted in: Constitutional Law, Daniel Horwitz, Litigation
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September 24, 2021

Davidson County Chancery Court Orders Tennessee’s Board of Parole to Stop Violating the Reentry Success Act of 2021

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Earlier this year, Tennessee enacted the Reentry Success Act of 2021 into law.  The Reentry Success Act overhauls Tennessee’s parole laws, and it was designed to reform several components of the parole hearing process, parole determinations, and parole eligibility.

As soon as the Reentry Success Act took effect, however, the Tennessee Board of Parole began insisting that the Act would not be effective for a huge number of its beneficiaries. As grounds, Board of Parole staff attorney Rachel Hitt complained that “the Board does not have the ability or resources necessary to identify” those cases—part of Tennessee Governor Bill Lee’s PR-first, substance-last approach to criminal justice reform.  Accordingly, one inmate who was presumptively entitled to be released on parole under the Reentry Success Act of 2021 filed suit, seeking to compel the Board of Parole to comply with the law.

In a late Friday afternoon ruling, Davidson County Chancellor Anne C. Martin agreed that the Board of Parole had violated the Reentry Success Act of 2021.  “[T]he Court finds that the Board failed to adhere to the requirement of the Act, codified at Tenn. Code Ann. § 40- 35-503(i) and (j), when it denied [the Petitioner’s] June 23, 2021 request for a parole hearing earlier than July of 2022 and in reasonable proximity to his release eligibility date,” the Court’s ruling reads.  Accordingly, it is “ORDERED, ADJUDGED and DECREED that Mr. Hughes’ petition is GRANTED and this matter is REMANDED to the Board of Parole with instructions to DETERMINE his release eligibility date and SET A PAROLE HEARING within sixty (60) days of that date.”

“The Board of Parole has long been Tennessee’s most disgraceful government agency, and the Lee Administration should be ashamed of its two-faced approach to criminal justice reform,” said attorney Daniel A. Horwitz, who represented Mr. Hughes with Horwitz Law, PLLC attorney Lindsay Smith.  “Laws are not suggestions—even for unqualified patronage appointees and others who draw taxpayer-funded salaries.  We look forward to reuniting Mr. Hughes with his family by Christmas.”

Case Documents

-The Court’s September 24, 2021 ruling can be found here: https://horwitz.law/wp-content/uploads/21-0618-II-9-24-21-SIGNED.pdf

-Mr. Hughes’ Brief can be found here: https://horwitz.law/wp-content/uploads/Hughes-Brief.pdf

-Mr. Hughes’ Petition for a Writ of Certiorari can be found here: https://horwitz.law/wp-content/uploads/Hughes-Petition-and-Attachments.pdf

-Background on the Reentry Success Act of 2021 and its presumption of parole for eligible inmates can be found here: https://horwitz.law/wp-content/uploads/Reentry-Success-Act-of-2021-White-Paper-DAH-7-1-21.pdf

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Daniel A. Horwitz is a Nashville-based lawyer who represents clients across Tennessee.  If you are seeking representation, you can purchase a consultation from Horwitz Law here.

Contact: [email protected]

 

Posted in: Constitutional Law, Criminal Law
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June 29, 2021

Horwitz Law, PLLC Files Suit to Vindicate Nashville Woman’s First Amendment Right to Display Vanity Plate

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When Nashville woman Leah Gilliam purchased a vanity plate to celebrate her interests in astronomy and gaming, it did not occur to her that her constitutionally protected speech could land her in jail.  Due to the Tennessee Department of Revenue’s determination—more than a decade after the fact—that Ms. Gilliam’s “69PWNDU” vanity plate is illegally “offensive,” though, she is now at risk of prosecution if she does not submit to the State of Tennessee’s unlawful prior restraint.  Accordingly, Horwitz Law, PLLC has filed suit on Ms. Gilliam’s behalf, arguing that Tennessee’s vanity plate law violates the First Amendment by discriminating based on viewpoint and is unconstitutionally vague.

“The First Amendment forbids the government from discriminating against citizens based on the viewpoint they express,” said Horwitz Law, PLLC principal Daniel A. Horwitz, who represents Ms. Gilliam along with attorneys Lindsay Smith and David Hudson.  “Ms. Gilliam’s harmless vanity plate is transparently protected by the First Amendment, and the only illegality involved is the Tennessee Department of Revenue’s decision to violate her First Amendment rights.”

In addition to her lawsuit against Tennessee Department of Revenue Commissioner David Gerregano, Ms. Gilliam has filed an application for a temporary injunction seeking to enjoin enforcement of Tennessee’s vanity plate revocation law against her pending the conclusion of judicial review.

Daniel A. Horwitz is a First Amendment and speech defense lawyer who represents clients across Tennessee.  If you are seeking speech defense or First Amendment representation, you can purchase a consultation from Horwitz Law here.

Contact: [email protected]

Posted in: Constitutional Law, Daniel Horwitz, First Amendment
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June 24, 2021

Horwitz Law, PLLC Wins Appeal of First-Ever Anti-SLAPP Judgment Under the Tennessee Public Participation Act

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In a precedent-setting, unanimous ruling, the Tennessee Court of Appeals has affirmed the first trial court judgment ever issued under the Tennessee Public Participation Act, Tennessee’s recently enacted anti-SLAPP statute.  The ruling establishes several critical precedents for free speech law in Tennessee, and it represents a total victory for Wilson County woman Kelly Beavers, who has spent nearly two years defending her constitutional right to post a negative review on Yelp!, a popular consumer review website.

“This precedent-setting victory for Ms. Beavers and her family sends a clear warning to anyone who would abuse the judicial process in an attempt to censor honest, critical consumer reviews and other constitutionally protected speech,” said Horwitz Law, PLLC attorney Daniel Horwitz, a First Amendment, anti-SLAPP, and speech defense lawyer who represented Ms. Beavers.  “The First Amendment protects every person’s right to speak freely, and this ruling makes clear that the consequences for plaintiffs who file baseless defamation suits in Tennessee will be severe.”

The case at issue arose out of a lawsuit filed by Dr. Kaveer Nandigam and his corporation, Nandigam Neurology, PLC, against Kelly Beavers regarding a negative Yelp! review.  After Ms. Beavers took her father to see Dr. Nandigam and had a terrible experience there, she exercised her First Amendment right to post a negative review on Yelp!, a popular consumer review website.  Dr. Nandigam threatened to sue her if she did not remove the review, and ultimately, he did sue her for defamation and false light invasion of privacy regarding it when she refused to do so.

After Dr. Nandigam dismissed and then refiled his lawsuit against her, Ms. Beavers filed a Petition to Dismiss the Plaintiffs’ claims under the Tennessee Public Participation Act.  Ms. Beavers’ petition was granted, and the Tennessee Court of Appeals has now affirmed that dismissal in its entirety while ordering the Plaintiffs to pay Ms. Beavers’ legal fees and potential sanctions.  “As [Ms. Beavers] aptly notes in her principal brief, ‘the TPPA . . . was designed to prevent and deter such abuse, not to enable it,'” the Court of Appeals ruled.  Ms. Beavers’ claims for attorney’s fees and sanctions against Dr. Nandigam remain pending and will be adjudicated upon remand.  The Court of Appeals’ opinion additionally orders that: “We remand this matter to the general sessions court for a determination of the proper amount of reasonable fees incurred by Defendant during this appeal” as well.

Read the Tennessee Court of Appeals’ unanimous ruling in Nandigam Neurology, et al. v. Kelly Beavers here: https://www.tncourts.gov/sites/default/files/nandigamneurologyv.beavers.opn_.pdf

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Horwitz Law, PLLC has successfully defended clients against multiple multimillion-dollar libel, slander, false light, and other speech-based lawsuits in Tennessee’s state and federal courts.  Clients represented by Horwitz Law have avoided tens of millions of dollars’ worth of threatened liability and frequently recovered some or all of their attorney’s fees against the people who baselessly sued them.  If you are seeking speech defense, anti-SLAPP, or First Amendment representation, you can purchase a consultation from Horwitz Law here.

Posted in: Daniel Horwitz, Defamation, First Amendment, Tennessee Public Participation Act
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June 22, 2021

Horwitz Law, PLLC Clients the Nashville Area Chamber of Commerce, Tennesseans for Sensible Election Laws Prevail in Davidson County Election Litigation

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In a thorough, 42-page opinion, Davidson County Chancellor Russell Perkins has ruled that the Davidson County Election Commission acted unlawfully when it set an election on a legally defective referendum opinion.  “4GG’s Petition . . . did not prescribe a date as required by Section 19.01; it clearly prescribed, or listed, two alternative dates,” Chancellor Perkins ruled.  “Legal prerequisites, however, must be met and the Election Commission’s failure to insist that the ‘prescribe a date’ legal requirement be complied with as written is not entitled to deference upon judicial review.”  “4GG’s Petition did not meet the ‘prescribe a date’ requirement under § 19.01 of the Metropolitan Charter.”

In so ruling, Chancellor Perkins adopted the central argument advanced by the Nashville Area Chamber of Commerce and Tennesseans for Sensible Election Laws as amici curiae in the case.  On June 4, 2021, Horwitz Law, PLLC filed an amici curiae brief on behalf of clients the Nashville Area Chamber of Commerce and Tennesseans for Sensible Election Laws in Metropolitan Government, et al. v. Davidson County Election Commission, et al., Davidson County Chancery Court Case No. 21-0433-IV.  The brief argued, among other things, that the Davidson County Election Commission acted unlawfully by approving a multi-date referendum petition despite the Metro Charter’s unambiguous requirement that petitioners “prescribe a date” for an election in order to afford appropriate notice to voters.

“Compliance with straightforward and longstanding legal requirements is not voluntary, and ignoring provisions of the Charter while depriving opponents of fair notice solely because a bare majority of the Election Commission supports a measure is impermissible,” said Horwitz Law, PLLC principal Daniel A. Horwitz—who represented both groups alongside Horwitz Law, PLLC attorney Lindsay Smith—in a statement to the Tennessean on the ruling.  “As the Chamber and TSEL argued at length, the Davidson County Election Commission lacks authority to violate clear provisions of the Metropolitan Charter in an ill-advised effort to apply new and different rules to a favored petitioner,” Horwitz added in a statement to the Tennessee Lookout.

Read Chancellor Perkins’ June 22, 2021 Memorandum and Final Order in Davidson County Chancery Court Case No. 21-0433-IV here.

Read the Brief of Amici Curiae of Nashville Area Chamber of Commerce and Tennesseans for Sensible Election Laws in Support of Petitioner here: https://horwitz.law/wp-content/uploads/Brief-of-Amici-Curiae-the-Chamber-and-TSEL.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.

Posted in: Daniel Horwitz, Election Law
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