David Tulis and I were two of the “unwelcome individuals” that caused all the consternation and “concerning disruption” during the Municipal Judicial Conference held Nov. 4-6 in Franklin, Tenn. That’s how the state described us in testimony and filings Wednesday in U.S. district court in explaining its tough new secrecy controls over the conferences.
By Christopher Sapp / Midstate Bureau Chief NoogaRadio 96.9 FM
Initially, I reached out to the AOC seeking login credentials just so that I could watch the conference from my office while I worked on other things. Being the curious individual that I am, I wanted to know what these conferences were all about and what the judges discussed and debated when they assembled in their official annual meeting. My request was denied.
Following a volley of emails with AOC attorney Rachel Harmon, she and I reached an impasse in our discussion in which I tried to reason with her based on my reading and understanding of the law. I then asked to speak with Director Tate and was told that she also agreed with Harmon and that I would still not be given access to watch the Conference online. Still undaunted, I took a second and third look at the relevant statutes, Tennessee Open Meetings Act, TN Constitution, and the Court’s own ruling in Dorrier v. Dark, 537 S.W.2d 888 (1976).
After a close examination of all of the aforementioned texts, I came away more convinced than ever that the public held a legal right to know what occurred in these Conferences…especially when we, as taxpayers, are funding the damn thing! It was at this point that I reached out to David Tulis looking for anyone in the press who might be a potential ally and have a higher claim of right than I did as an ordinary tax paying citizen. Tulis jumped in with both feet after hearing the merits of my argument.
I subsequently prepared a nine (9) page letter which I later hand-carried over to the TN Supreme Court in Nashville, naively believing that Chief Justice Roger Page, Director Tate’s supervisor at the time, would read and understand. I trusted that surely the Chief Justice would acknowledge the rights provided to me by law and order his subordinates to release the login credentials that I should have been able to obtain in order to watch the meeting from afar. Crickets.
When Chief Justice Page failed to respond and the login credentials did not appear to be forthcoming, Tulis and I decided to walk straight into the Lion’s Den to report on their activities in person. By this time, Tulis had issued me press credentials from his radio station in Chattanooga so that I had a better leg to stand on from a Constitutional point of view.
For whatever reason, the mere presence of two well-dressed mild-mannered reporters with good teeth and firm resolve sent unwarranted shockwaves of panic and consternation throughout the Conference.
We were asked repeatedly to leave by organizers and THP personnel. Event organizers presumptuously erred in assuming that Tulis and I harbored some type of ill-will or the ill-intent of protesters and troublemakers which simply wasn’t the case at all.
Municipal Court Judge Marty Lasley from Soddy-Daisy happened to be in attendance that day and actually knows Mr. Tulis personally. In good faith, Judge Lasley attempted to interject himself into the conversation in an effort to personally vouch for the credibility and non-violent nature of Mr. Tulis, but alas, Judge Lasley’s efforts were futile and the affirmations and testimony offered by this most respectable judge fell on the deaf ears and closed minds of AOC staff and Conference officers.
Interestingly, the AOC went out of their way in arranging to post an armed member of the Tennessee Highway Patrol outside the doors of the Conference in an apparent effort to chill the efforts of anyone attempting entry to the meeting…all in blatant violation of the Open Meetings Act which stipulates it to be the policy of this state that, “the formation of public policy and decisions is public business and shall not be conducted in secret.”
David and I eventually did manage to make entry and were subsequently asked to leave simply because we were not “registered for the conference” which neither the Open Meetings Act or Article I § 19 of our Constitution requires. In a letter requesting the assistance of the Tennessee Highway Patrol prior to the Conference, John Crawford identifies Mr. Tulis and I as “the unwelcome individuals who have been making contact…”
Crawford went on to state that he wanted to “make certain we handle it correctly.” You decide for yourself what signals these statements might suggestively send to state law enforcement officials.
Tulis and I politely, and repeatedly, declined invitations and demands to leave the conference room and Conference organizers patently refused to continue the meetings so long as members of the press were present in the room. Our firm resolve and persistent refusal to leave or to be intimidated into leaving by the presence of law enforcement only increased the sense of panic and frustration on the part of event organizers and AOC staffers. AOC education director John Crawford seemed particularly discombobulated and rattled by our desire to report on the Conference. In trying to reason with everyone, we asserted that once public funds had been expended to secure the use of the ballroom, the room essentially became state property and that we had every right to attend and report on a mandatory meeting of public officials conducting business in their official capacities.
Additionally, we argued, once the contract had been signed, hotel management had no more right or authority to have us removed or criminally trespassed from the property than they would if we had been standing in the middle of a state park or public courthouse. The body camera footage we have since obtained clearly shows hotel managers being goaded and coaxed by AOC staffers into having us criminally trespassed from the property, something the Conference patently refused to do themselves. Why?
Mr. Tulis and I continued to calmly assert our rights and Mr. Tulis was subsequently arrested as a result of his fortitude, persistence and resolve.
Doubly closed conferences
Neither Mr. Tulis nor I were in any way disorderly, unruly, or in breach of the peace at any point during our visit. We were simply there to quietly report on the news and to observe the Conference proceedings as they progressed— as is the right of every tax-paying citizen according to Article I § 19 of the Tennessee Constitution.
Historically, these conferences have largely remained off the radar because no one had either expressed a previous interest in attending or perhaps they lacked the temerity to challenge the status quo of being told that they could not attend.
Tulis and I are cut from a different cloth. It was only AFTER Tulis and I expressed a desire to observe the Conference that the AOC bowed up in the refusal to open the meeting to reporters and developed their unconstitutional policy to “close” the Conferences and prevent attendees from disclosing ANY information on them.
Press power recognized by law
Article I § 19 of the TN Constitution declares, “That the printing press shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof.”
Also, it is important to remember that the Open Meetings Act is supplementary to, and not a replacement of, our Article I § 19 rights. Tenn. Code Ann. § 8-44-101(b) states, “This part shall not be construed to limit any of the rights and privileges contained in article I, § 19 of the Constitution of Tennessee.” Therefore, whether or not the “meeting” would be covered under the Open Meetings Act, the fact that these officers of government are mandated to assemble and attend as part of their official duties, and especially when public monies are being expended in the process, Article I § 19 still declares it to be a right of the press to examine the proceedings of this branch of government. The judiciary isn’t special nor are they above the rule of law…or at least they shouldn’t be.
Rights guarded by ferocious law
To ensure that the judiciary remains within the bounds of the law, Article XI § 16 of the TN Constitution was specifically written to “guard against transgression of the high powers” under “any pretense whatever.” The People went on to speak through the through the mouth of the legislature to state that “everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate.” This provision of our Constitution places bright-line limitations on the actions of government officials, including those of the Tennessee Supreme Court and that entire branch of government.
Rachel Harmon and Asst. Attorney General Janet Kleinfelter tried to portray Mr. Tulis and me as some type of troublemakers or security threat. They would like everyone to believe that we were causing an interruption to the proceedings. But the only thing the AOC was interested in “securing” at the time was the continued secrecy of their discussions and to prevent public disclosure of their activities by the watchful eye of the press. Organizers were absolutely terrified by our presence and patently refused to continue with the Conference so long as anyone from the press was in the room.
Why? If the only items they were discussing related to continuing legal education and technical nuances of the law, why would it matter if we watched and reported on their activities or inquired into their public speakers or the curricula they were being taught? Interestingly, nobody offered to wand our clothing or pat us down for weapons while we were there either so the security of their attendees wasn’t their primary concern, keeping their discussions a secret was!
‘Frustrate or interfere’
We issued an Open Records Request in order to obtain documents related to the event, but in their response the AOC hid behind attorney-client privilege over their internal emails and pretty much all of the other items we requested were denied under Supreme Court Rule 34(2)(C)(viii) which is a rather vaguely written and obscurely worded rule which essentially becomes a subjective “catch-all” for denying requests for information.
This rule preempts and forbids disclosure of any record or document that could subjectively be deemed to “frustrate or interfere with the judicial function of the courts or potentially undermine the inherent constitutional powers granted to the court…”
The question we have is what are they trying to cover up and in what universe would the disclosure of contracts, expenses, and disbursements “frustrate or interfere with the judicial function” or “potentially undermine the inherent constitutional powers granted to the Court?” What exactly are they trying to prevent the public from knowing? Director Deborah Tate mysteriously decided to retire and announced her departure from the AOC amidst our Open Records Request.
Coincidence? I think not.
Tulis and I eventually managed to defeat a finding for probable cause over the wrongful arrest and bogus criminal trespassing charges in December, but we were left with even more questions as a result of our experience and interactions with the AOC.
Lockdown for ‘security’
On her very first day in command, Director Michelle Long implemented the new Education Policy 3.04 that on Monday became the subject of federal litigation in Nashville.
This policy is a full-throated affront to, and repudiation of, Tennessee Constitution Article I § 19, Article XI § 16, TN Open Meetings Act, and the Court’s own ruling in Dorrier v. Dark, 537 S.W.2d 888 (1976). Since it would be absolute suicide to have the merits of this policy litigated any the our Tennessee Courts, as every sitting judge has sworn an oath of allegience to not only the Constitutions, but also to the TN Supreme Court.
As a result of these divided loyalties, we don’t imagine that there isn’t a judge in the state who would issue a ruling in contravention to the policies of the Supreme Court, even if that policy directly violated the provisions of our state’s Constitution. Every attorney in this state obtains their law licenses from the TN Supreme Court and they’re not likely to jeopardize their careers over this issue, regardless of the merits of our claim.
Our only recourse and remedy at this point is publicity and public awareness about the issue. If the Federal Courts do not adequately intervene, public outcry may be the only way of opening the judiciary to public inspection and oversight.
When the self-styled “guardians of the Constitution” cannot be trusted to follow and uphold the very Constitution they purport to be guarding so diligently, it’s time for the people of Tennessee to do something about it.
Fortunately, our story has since captured the interest and attention of Buck Dougherty and The Center Stage, folks with far deeper pockets and better name recognition than David Tulis and I have. In conclusion, this new policy really is a gag-order which seeks to further shield the judiciary from public oversight and the discerning eye of the press and it simply cannot be allowed to stand.
Surely, our Chief Justice must know and understand the constitutional rights secured to the people under Article I § 19 as well as the limitations placed on his office by Article XI § 19, if not, the Chief Justice should be replaced immediately.
Trooper unlawfully blocking entry to Judicial Conference
Gubernatorial Candidate John Gentry questions Conference officials
Tulis cellphone video of his arrest.
Video after we beat the criminal trespassing charges in Franklin.