Legislative and Testimonial Immunity

There have been a number of interesting new land use cases over the last 20 or 30 days, both here in Tennessee and across the country as a whole. Over the next couple of weeks, I’ll try to address some of the more interesting cases. Today will start with a very interesting legislative and testimonial immunity case, Issa v Benson, (Tenn. App. June 24, 2013). A developer seeking a zoning change in Chattanooga sued a City Councilman for defamation, alleging that the Councilman had falsely accused the developer of offering him a bribe to support the zoning change. The Councilman later informed the Council, during argument concerning the zoning change on the floor of the Council, and not surprisingly, the zoning change was defeated. In addition, there was an earlier conversation between the two men where the developer warned that he would have to contest in court any decision denying the zoning change and the Councilman responded that if there was a lawsuit filed, he would testify that the developer had offered him a bribe in order to gain his support.

After the zoning change was defeated, the developer filed a defamation lawsuit and the Councilman filed a motion to dismiss based on both legislative and testimonial immunity (the court calls the latter litigation privilege). First, the court makes clear that the legislative immunity applies to lesser legislative bodies, such as local County and municipal legislatures. The developer tried to argue first that because there may have been a violation of the Open Public Meetings Act that was not an appropriate legislative session and therefore the privilege did not attach. Further he argued that bribery was beyond the bounds of the privilege itself.

The court found both arguments unavailing. First, the applicability of the Open Public Meetings Act was irrelevant to the issue of legislative immunity. Even if there had been a violation of the act, that would not render comments made by a local legislator potentially actionable. The privilege applied regardless of the Open Public Meetings Act.

Second, while certainly bribery is illegal and not to be condoned, the court noted that in a bribe had been offered, the other members of the local legislative body would be interested in that and it would certainly have an effect on the proposed legislation. As a result, the comments concerning the alleged bribery or well within the protection of the privilege and no liability could result.

Finally, the developer’s allegations concerning the earlier meeting took place outside the context of a legislative Council meeting. As a result, the developer argued that the legislative immunity did not apply. The court however ruled that there was a “litigation privilege” or as I usually call it, a testimonial immunity. The court held that since the developer had threatened litigation, the comments of the legislator were protected as “preliminary to proposed or pending litigation.” Since there was a threat of a lawsuit, this comment about the alleged bribery, was preliminary to the defamation lawsuit which was in fact file. As a result, the comments were protected by virtue of the litigation privilege or testimonial immunity.

A final couple of notes are in order. First, you might be wondering whether a witness in a zoning board hearing is protected by the testimonial immunity. In fact, they are. In Evans d/b/a Riverwood Riding Academy of Nashville v Nashville Banner, 1988 WL 105718 (Tenn. App. 1988), the court held:

Tennessee courts have extended this privilege to meetings of local legislative bodies, and to "quasi-judicial" proceedings conducted by state departments and agencies . . .  Zoning boards are generally considered to be "quasi-judicial" bodies having "quasi-judicial" functions. The Tennessee Supreme Court has followed the general rule. The Court has held that a county board of adjustment is acting as a "quasi-judicial" body when it grants a zoning variance. It has also held that "determinations made by a Board of Zoning Appeals are administrative determinations, judicial or quasi-judicial in nature."

The policy underlying the privilege is to encourage the public to speak freely at public, governmental hearings without the fear of a defamation suit. Local boards of zoning appeals take actions which affect not only . . . homes and neighborhoods but also the quality of people's lives. When these boards hold hearings, all interested persons should feel free to express their views without fear of a recriminating lawsuit. To this end, statements made at a public governmental meeting should be absolutely privileged.

Of course, the same safeguards of relevance apply in hearings conducted by local zoning boards that apply to full-fledged trials or legislative proceedings. Thus, before the privilege will apply, the statements must be related to the subject matter of the hearing.

Since the witness who testified against the applicant at the zoning board hearing was immunized, and the newspaper articles describing the hearing faithfully recounted the details, neither the witness who testified nor the newspaper which published the report had any liability for defamation.

Finally, one wonders what the Tennessee Anti-Slap Act of 1997,  Tenn. Code Ann. §4-21-1001, adds in this context. The protection purportedly offered by the statute seems less inclusive than the common law rule described above. As a result, it’s not entirely clear what the impact of the 1997 statute really is.

Generally, we can conclude that a defamation action against either a local legislator or a witness before a local zoning board or planning commission (or legislative body) is likely privileged. In the case of the witness, the testimony must have been generally relevant to the issues before the administrative body, but assuming that, no defamation action can be successfully maintained.