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  • Order Denying Rep. Durham Injunction Request

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    Davidson County Chancellor Russell T. Perkins denied Rep. Jeremy Durham's request for an injunction. The injunction may have stopped the release of an investigative report from the Tennessee attorney general looking into allegations of inappropriate conduct by Durham.

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    Order denying Rep. Durham injunction request

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    Davidson County Chancellor Russell T. Perkins denied Rep. Jeremy Durham's request for an injunction. The injunction may have stopped the release of an investigative report from the Tennessee attorney general looking into allegations of inappropriate conduct by Durham.

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    1K vues12 pages

    Order Denying Rep. Durham Injunction Request

    Transféré par

    Anonymous VuGMp3T0
    Davidson County Chancellor Russell T. Perkins denied Rep. Jeremy Durham's request for an injunction. The injunction may have stopped the release of an investigative report from the Tennessee attorney general looking into allegations of inappropriate conduct by Durham.

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    © All Rights Reserved
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    IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE, ‘TWENTIETH JUDICIAL DISTRICT, DAVIDSON COUNTY, PART IV COPY CASENO. 16.0734-1V JEREMY DURHAM, Phintift, HERBERT SLATERY IM, in his Official Capacity as Tennessee Attorney General; BETH HARWELL, in her Official eapacity as Speaker ofthe House of the ‘Tennessee General Assembly; and ‘THE AD HOC SELECT COMMITTEE, Defendants. ORDER ADDRESSING PLAINTIEP'S APPLICATION = TOR A TEMPORARY INJUNCTION Phintff, Representative Jeremy Durham (‘Plainff” or “Rep. Durham”), is a ‘member of the Tennessee House of Representatives of the 108 Tennessee General “Assembly, Rep, Durham represents District 65, which includes part of Williamson County, Tennessee, Since late January or early February 2016, Rep. Durham has been ‘the subject of an internal House investigation, This investigation has been conducted through afour-member Ad Hoe Select Committee ofthe House fermed at the instance of the Speaker of the House, The Ad Hoe Select Committe was appointed and designated by the Atiomey General of Lenessee to lead the investigation. On July 8, 2016, Rep. Durham sued Defendants Herbert Slatery, Ill, Attomey General and Reporter for the Stato of Tennessee (“Attomsy General Slatery"); Representative Beth Harwell, Speaker of the House of the Tennessee General Assembly (Speaker Harwell"); and the Ad Hoe Select Committe as a boly, seeking declaratory relic, temporary and permaneat injunctive relief, and altomeys” fees under 42 US.C. § 1988 and costs, Significantly, Rep. Dusham is requesting the Court to issue a temporary {njunctior “restraining Defendants, and those acting in concert with them, from releasing, publishing, or disseminating any report or other matters regarding the investigation” and restsning “the Comite ftom meeting, acting, of operating in any manner, pending further onder of this Cour.” Memorandum in Support of Motion for Temporary Injunctve Relief (Memorandum in Suppor), p. 5. After a telephonic conference between the Cour and counsel of record on the aflemoon of ily 8, 2016, the Cour set Plains pplieion for a non-evidentary temporary injunction hearing on July 12, 2016 at 1:30 pam Plaintiff ase in his thee-count Verified Complaint for Declaratory Judgment and Injnetive Reet Complain) that: 1) appointing Tennessee's Attomey General, « member of Tennessee's judicial branch, to lead the investigation violates the separation of powers doctite of Article Il, § 12 of the Tennessee Constitution; 2) initiating an investigation prior to issuing a formal House resolution and investigating Rep. Durham aad issuing a report under the circumstances presented here violate Rep. Durham's right ‘to due.process or fundamental fairness as guaranteed by the 14" Amendment to the United States Constitution and as protected by 42 US. § 1983, a federal civil rights statute; and 3) releasing the Attorney General's investigative report now unde pevaling circumstances when the Tennessee General Assembly will ot be in session until Janoary 2017 warans the issuance ofa temporary injunction to prevent Paint from suffering unecessary, ineperable harm. Defendants counter, urging that Plant's claims are barred by legislaive and sovereign immunity, that Plaintiff has not asserted viable separation of powers ord process claims, and tat Plaintiff has not made the requisite showing for this Couto issue a temporary injunetion. ‘Temporary Injunction Standard In devidng & motion for temporary injuneton, the inquiry is based on the language of Tenn. R. Cv, P,65:04(2), which eads in its entirety a follows: 2 ‘A temporary injunction may be granted during the pendency of an action if itis clearly shown by verified complaint, affidavit or other evidence that the movant’ rights are being or will be violated by an adverse party and the movant will suffer immediate and ireparable injury, loss or damage ‘pending a final judgment in the action, or that the acts or omissions of the ‘adverse party will tnd to render such final judgment ineffectual. 114, In following this language, Tennessee appellate cours have distilled four factors for the Court's consideration in determining whether to grant a temporary injunction: 1) The threat of iereparable harm to the applicant if the injunction is not granted; 2) The balance betwen the harm the applicant i seeking to prevent and the injury tat granting the injunction would inflict on the party the sxpliant is proposing to enjoin, 23) The probability that the applicant will ueseed on the merits; and 4) The public interes. See Moody v Hutchison, 247 8.W 34 187, 199-200 (enn, Ct App. 2007). Tese factors are considentions, not a bard and fast tet, Ulimaely, the above-quoted language of Tenn. R. Civ, P. 65.040) contols the Cours disposition of a temporary injunction request, Unlee Tenn. R Civ. P, 65.04() the Cour is required to “set forth findings of {act and conclusions of law whieh constitute the grounds ofits action.” Id Facts Based on the current stale of the record, the Court makes the following preliminary Sndings of fact 1. Rep, Dutham i a metmber ofthe Tennessee House of Representatives. He is cemnenily running for r-lection in a contested primary and in a contested ection if he wins the primary, The primary election isn early August 2016; carly voting inthe primary election begins ina few days. In late January 2016, a Tennessee newspaper published atces about Rep. Darham’s allegedly inappropriate text messages to tuee women, which raised question of unwelcome advanceslcommunication. ‘ong the way, a few of Tennessee's highest elected officals expressed concern about Rep, Dusham’s allege inappropriate behavior, with more than cone of them (inciting Speaker Harwell) suggesting tht Rep. Dhar resign fiom the House of Representatives. Rep. Dutham didnot resign from his position as a member ofthe House of Representative, bute di in late Fanury 2016, resign fom the leadership position of Majority Party Whip of his partys caucus in the House. In ate January 2016, there were published media reports tht Rep. Dusham ‘would be investigated and that Tennessee's Attomey General was being requested or designated to lead te investigation. (On Februry 4, 2016, Speaker Harwell appointed Representative Ravmesh [Akbeir, Andrew Farmer, Steve McDaniel, and Billy Spivey to serve as members of an Ad Hoo Select Committee under Aricle I, § 12 of the ‘Tennessee Constitution, The appointment was made by alte ofthe same dite, ‘The charge of the Ad Hoc Select Committe was “to investigate ‘whether the public allegations concerning Representative Durham constitute disorderly behavior and whether such behavior or othe citcumstance justify expulsion of Representative Durham fom the General Assembly, under Article I § 12 ofthe Tennessee Constitution.” Affidavit of Representative Steve MeDaniel,Fitst Exhibit Tn this letter, Speaker Harwell appointed Representative MeDaniel to serve as the chair of the Ad Hoc Select Committee, See id 7. On Febmiary 8, 2016, the Ad Hoc Seleet Committee adopted a resolution appointing and designating the Office ofthe Attorney General and Reporter to “provide necessary and proper aid and assisunce to the Committee” in conducting an investigation of Rep. Durham, to serve as legal counsel and investigate under Tenn, Code Ann §3-4-102(), and to “conduct a fll, and thorough investigation ofthe allegations of disorderly and inappropriate behavior snd misconduct by Representative Durham” and directing the Atomey General to “prepare a report of the findings ofthe investigation to the Article I, § 12 Ad Hoe Select Comnitee” Afidavit of Representative Steve McDaniel, Second Exhibit, 8 On April 6, 2016, Representative McDaniel forwarded a Memorandum to Speaker Harwell, which included a Status Report and Interim Recommendation, and Attorney General Slater's leter of April 5, 2016 ‘Ahough the documents iititng the investigation do not mention sexual harassment or aay applicable policy against sexual harassment, General Slatrys let of April 5, 2016 touches on sexual harassment in the context of investigating inappropriate conduct. General Sltery reported that the information in the investigation to that point indicted that Representative Durham had “made inappropriate comments ofa sexual nature oF [engaging] in inapproprite physical contact” with some of the women interviewed General Slatery also mentioned that Rep. Dusham had used his “supetior postion of power, acces to their personal contact information, the pretext of legitimate business, and alcohol, as part of his inappropriate conduct” General Slatery devote approximately two paragraphs inthis interim report to discussing sexual harasment. General Sltery concluded this letter by 5 recommenting that the exoployer consider taking interim measures “to prevent future inappropriate conduct” and to “avoid conact between the partes.” In ‘ts Apsil 6, 2016 Memorandum to Spesker Harwell, the Ad Hoe Select Commitee recommended that interim measures be tken “to prevent continuation ofthe conduct desrbed within the Atomey Generals lete.” Shortly thereafter, Speaker Harwell moved Rep. Durham's office and took cher measures to avoid Rep. Duta ftom having contact with the woman ‘who had reported that he engaged in misconduct, After the investigation was initiated, there was conespondence between Rep. Darham (or his legal counsel) and the Attomey General's Office: 2) On February 12, 2016, Attomey Genera Satery sent letter to Rep. Durham by centfed mail giving him netce of the ivestigation and requesting certain aces, information, anl devices fom Rep. Durham. ') On February 22,2016, Attomey General Satry seat leter via hand- delivery to Rep, Dutham advising Rep. Dusham thatthe Offic ofthe Auomney General would begin examining date on Rep. Durham's clectronie devices beginning on February 29, 2016, ‘The letter asked Rep. Dusham to advise the Office ofthe Atomey General by the close of business on Febroary 26, 2016, if he was asserting that any ofthe data “constiutes attomey-client privileged communication, private spoustl and other family communication and/or private financial and medical information.” ©) On March 8, 2016, the Attomey General's Office sent Rep. Dutham’s legal counsel leer reflecting the resus of a rent meeting about clevionie data and ema and social media accounts. 6 4) On March 14, 2016, Rep, Durham's legal counsel sent a reply tothe March 8, 2016 lever thanking the Attomey General's Office for sneetng with them on March 4, 2016 raising separation of powers and other concerns, and requested that ceruin electronically stored information be forenscallypreseved ©) On March 17,2016 the Atorney General's Office sent alter to Rep, Dushar's legal counsel rejecting the validity of the separation of powers and other concems and suggesting the use of « forensics exper ‘Rep, Durham's legal counsel mailed and emailed eter dated April 7, 2016 tthe Attorney General's Office, This eter requested that Rep. Durham be given an opportunity to meet with the Ad Hoe Select Committee “before the punitive measures set forth in [he] Apel 6, 2016 lotesi Recommendation are imposed against Me, Durham.” ‘The lever raised concems about faimess, the vagueness of the allegations and the opportunity to present Rep. Duchan’s side ofthe story tothe Commit, before the interim report was released tothe public. 2) On April 8, 2016, the Atomey General's Office sent a letter responding 0 the April 7, 2016 leter from Rep. Durham's legel counsel and affiming the propriety, legality, and integrity ofall he investigation 1) On Apil 20, 2016, the Office of the Attorney General mailed and emailed a letter to Rep. Durham's legal counsel related to obtaining lectronically stored information and reiterating their willingness to sereen confidential information from investigative review. ') On April 26, 2016, counsel for Rep. Durham reiterated his view that certain devices contained “privileged information protected by attomey-

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