Monday, September 30, 2019

Tennessee Public Participation Act, Tenn. Code Ann. § 20-17-101 et seq.

During its last session, the Tennessee General Assembly adopted the Tennessee Public Participation Act, Tenn. Code Ann. § 20-17-101, et seq. This new provision is much broader than the original Anti-Slap Act which was passed in 1997, Tenn. Code Ann. § 4-21-1001. The older act offered limited protection for communications with public entities. The recent legislation allows the defendant public participant (a neighborhood organization for example) to file a motion (the act actually calls it a petition) to dismiss and the case against the public participant may be dismissed if the legal action is based on that party’s exercise of the right to free speech, right to petition, or right of association. I won’t describe the burdens of production and persuasion further. My interest is to briefly look at this act in relationship to land-use appeals brought under the common law writ of certiorari.

Recall that the certiorari statute requires the administrative tribunal and “other parties of record” be named as respondents in the petition for writ of certiorari. Tenn. Code Ann. § 27-9-104. This term, “other parties of record” has never been defined precisely, and it is unclear as to whether neighbors opposing a particular development are parties of record. I have generally used a rough rule of thumb that I will bring in a neighborhood group which has hired an attorney to represent it before the zoning board or planning commission. Perhaps the neighborhood organization is not a party of record, but the fact that they cared enough to retain counsel is indicative of a desire to participate in the process.

But suppose after naming and serving the neighborhood organization, the neighborhood organization sues under the Tennessee Public Participation Act. The act is so new, it is hard to understand how these two statutes may interreact. Let me make just a couple of observations.

First, legal action is defined by the TPPA as a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable for relief initiated against a private party. Tenn. Code Ann. § 20-17-103 (5). Since a petition for writ of certiorari does not usually state a legal or equitable claim for relief as against any neighbor or neighborhood group, only against the local government and its administrative board the relief sought is usually a reversal of the decision of the administrative body (and attorneys fees if applicable), it is not clear that a neighbor brought into a cert proceeding can file a motion to dismiss under the TPPA. In fact, under Tenn. Code Ann. § 27-9-110, if a respondent is named in the petition, and that respondent does not desire to defend the case, the respondent does not need to do anything, including filing an answer. No adverse consequences will flow from this failure to respond. Remember too that the answer does get filed until 30 days after the filing of the transcript, which would give a neighborhood a chance to look at the transcript and make a decision as to filing an answer after receipt of that document.

Second, perhaps prior to filing the petition for writ of certiorari, counsel for the appealing party should contact the attorney for the neighborhood organization and simply ask if they want to be involved. If not, the neighborhood organization is not named, and if there is a complaint later, (for example, after the appealing party wins and the decision of the local administrative body is reversed), where the neighbors argue that they should have been involved and that the judgment is invalid as a result, the communication with the attorney for the organization may be enough to demonstrate that the neighborhood organization waived its right to participate.

Another option for the petitioner, would be to file against the local government and its administrative body, and only give notice of the appeal to the neighborhood organizations. The neighborhood group if it so desires could petition for leave to intervene after such notice. See Tenn. Code Ann. § 27-9-110(b).

Third, an interesting component of the TPPA is that discovery is stayed upon the filing of a petition to dismiss until the court rules. Tenn. Code Ann. § 20-17-104(d).  This might be a disadvantage in most cases, but in certiorari proceeding there is little to no discovery in any event, and so an automatic stay of discovery has little to no bearing on the proceedings of the litigation.

Frankly, I don’t see that there is any reason for a neighborhood organization to file a petition to dismiss under the TPPA in response to a common law writ of certiorari. But it has already happened in one case of mine, and I suspect that such petitions for dismissal will be increasingly frequent.

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