Durham v. Martin et al
Filing
74
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 12/16/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JEREMY R. DURHAM,
Plaintiff,
v.
BUTCH ELEY, as Commissioner of
Finance and Administration, in his
official capacity, 1 et al.,
Defendants.
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Case No. 3:17-cv-01172
Judge Aleta A. Trauger
MEMORANDUM
Before the court is plaintiff Jeremy Durham’s Motion for Summary Judgment (Doc. No.
64), seeking judgment in his favor on the sole remaining claim in this case: whether he was denied
due process in connection with the termination of certain health insurance benefits, which resulted
from his expulsion from the Tennessee legislature. For the reasons set forth herein, the plaintiff’s
motion will be denied.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The basic facts of this case are undisputed. 2 Plaintiff Jeremy Durham was elected to the
108th General Assembly of the Tennessee House of Representatives in November 2012 and served
1
Durham originally sued Larry Martin in his official capacity as the Tennessee
Commissioner of Finance and Administration. Martin was succeeded by Stuart McWhorter and
then Butch Eley, who was appointed to that position in April 2020. Commissioner Eley is
automatically substituted for former-Commissioner Martin as a defendant in this case. Fed. R. Civ.
P. 25(d).
2
Unless otherwise indicated, the facts set forth herein are drawn from the defendants’
Response to [Plaintiff’s] Statement of Undisputed Material Facts (Doc. No. 69) and the plaintiff’s
Response to Defendants’ Supplemental Statement of Undisputed Material Facts (Doc. No. 72).
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2
a full term, which expired in 2014. He was reelected in 2014 to serve a full term as a member of
the 109th General Assembly. Under ordinary circumstances, his term would have expired on the
date of the general election in November 2016. See Tenn. Const. art. II, § 3 (“Representatives shall
hold office for two years . . . from the day of the general election . . . .”).
On September 2, 2016, then-Governor Bill Haslam announced that he would call a special
session of the General Assembly after learning that sixty million dollars in federal highway funds
was in jeopardy. The governor’s proclamation, calling for the special session, identified four
specific items for the General Assembly to consider and act upon. All four items dealt with certain
DUI laws and federal highway funds. (See Proclamation, Doc. No. 33-1.) The Proclamation did
not mention or reference Durham.
Prior to the announcement of the special session, Durham had been the subject of an
investigation and report issued by the Tennessee Attorney General’s office (“Report”) in July
2016. 3 (Doc. No. 72-1, Durham Decl. ¶ 4.) Durham did not receive a copy of the Report until it
was released to the public. (Durham Decl. ¶ 5.) The Report cited anonymous sources and identified
the individuals alleging improper conduct by Durham only as “Jane Doe.” (Durham Decl. ¶ 6.)
The Report concluded that Durham had engaged in “disorderly conduct” while in office. 4 Prior to
issuing the Report, the Attorney General’s office told Durham that he could answer questions from
the office’s investigators, but the Attorney General’s office did not notify Durham of the nature of
3
The Report is not in the court’s record but is available online at
https://www.documentcloud.org/documents/2993307-Final-Report-Into-Inappropriate-ConductRep.html.
4
More specifically, the Report concluded that Durham had engaged in sexually
inappropriate conduct involving at least 22 women between 2012 and 2016. Report at 2.
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the allegations against him or the identity of his accusers in advance of the meeting. (Durham Decl.
¶ 7.) Durham declined to meet with the investigators. (Id.)
Shortly after the Report became public, Representative Mike Stewart called for a special
session of the Tennessee House of Representatives to vote to expel Durham, but the call failed.
(Doc. No. 33 ¶¶ 35, 39; Doc. No. 63 ¶¶ 35, 39.) House Republican Caucus Chair Glen Casada and
Representative Joe Armstrong circulated a second petition to call a special legislative session to
oust Durham. That petition failed as well. (Doc. No. 33 ¶ 40; Doc. No. 63 ¶ 40.)
On July 14, 2016, Durham publicly announced that he would not seek reelection. (Doc.
No. 33 ¶ 42; Doc. No. 63 ¶ 42.)
On July 26, 2016, The Tennessean newspaper quoted defendant Connie Ridley, Director
of Legislative Administration, as stating: “All members of the general assembly who are elected
to serve a full term of office as a member of the general assembly are eligible to continue their
health insurance by paying the appropriate premium amount.” (Doc. No. 33 ¶ 37; Doc. No. 63 ¶
37.)
On September 12, 2016, during the special session called by the governor, Representative
Susan Lynn made a motion to expel Jeremy Durham from the House of Representatives. Durham
learned about the motion late in the afternoon of September 12, 2016, through a text alert from an
online newspaper article. (Durham Decl. ¶ 10.) A few hours later, Doug Himes, then-Director of
the Office of Legal Services for the Tennessee General Assembly, emailed Durham to notify him
that the House would be considering a motion to expel him the next day. (Doc. No. 70-1, Himes
Decl. ¶¶ 1, 2 & Ex. A; Durham Decl. ¶ 14.) Durham contacted his personal attorney as soon as he
heard about the motion and discovered that his attorney would not be available to accompany him
to the General Assembly the following morning. (Durham Decl. ¶ 11.) That evening, Durham
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wrote a letter to his House colleagues detailing the ways in which he believed the Attorney
General’s investigation and the motion to expel him had denied him the right to due process. He
also expressed his belief that he would not receive a fair hearing on the House floor. (Durham
Decl. ¶ 18 & Ex. B, Doc. No. 72-1, at 12–19.)
On September 13, 2016, prior to his expulsion, Durham was given an opportunity to
address the House. He spoke for approximately thirteen minutes before voluntarily concluding his
statements. Debate on the motion remained open for an additional hour, during which time
members of the House could pose questions to Durham. Durham, however, was not permitted to
ask questions or to confront the accusers whose allegations formed the basis of the Attorney
General’s Report. At some point during this debate, Durham voluntarily left the House. The House
eventually voted 70-2 to expel Durham. Durham was not present for the vote. He alleges that, due
to Ridley’s comments in The Tennessean, he believed that he would retain his health insurance
benefit, even if he was expelled from the House. (Durham Decl. ¶¶ 22–23.)
On September 26, 2016, after the expulsion, Durham received correspondence from
defendant Connie Ridley’s office stating that his health insurance coverage would end effective
September 30, 2016 and that the decision to terminate his insurance was made by thenCommissioner of Finance and Administration, Larry Martin, in consultation with the Attorney
General. Durham’s (and his family’s) state health insurance coverage ended on September 30,
2016. The communication from Ridley’s office did not provide any process for a hearing or for
appealing the decision to terminate Durham’s health insurance, either before or after the
termination went into effect. (Doc. No. 33-2; see also Durham Decl. ¶ 27 & Ex. C, Doc. No. 721, at 21–24.)
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Tennessee law provides that, “[u]pon retirement from the general assembly, any . . .
representative . . . may elect to retain retiree health benefits by participating in the plan authorized
by the state insurance committee.” Tenn. Code Ann. § 8-27-208(a)(1) (2015). The provision only
applies to officials first elected prior to July 1, 2015, and the statute expressly excludes any former
member of the General Assembly who, after November 2, 2010, is convicted of a felony “arising
out of that person’s official capacity as a member of the general assembly.” Id. § 8-27-208(a)(2),
(b).
Durham has never been convicted of a felony. (Durham Decl. ¶ 2.) Accordingly, if he had
retired after his first term expired in 2014, he would have been eligible to elect to retain retiree
health benefits under Tenn. Code Ann. § 8-27-208. However, following his expulsion, the
Commissioner of Commerce and Insurance, acting in his official capacity and in consultation with
the Tennessee Attorney General, determined that Durham was not entitled to continued health
insurance benefits, because he had not “retired” from the General Assembly. 5
The plaintiff filed suit in August 2017, challenging his expulsion from the legislature and
the termination of state benefits—a state pension as well as the lifetime health insurance benefit—
on the grounds that the expulsion and denial of benefits violated his right to due process. (Doc.
No. 1.) The defendants promptly filed their first Motion to Dismiss, arguing that Durham lacked
standing to bring the case. This court granted the motion, but the Sixth Circuit reversed. Durham
v. Martin, 287 F. Supp. 3d 683 (M.D. Tenn. 2017), rev’d & remanded, 905 F.3d 432 (6th Cir.
2018). Following remand, Durham filed his Amended Complaint, adding a new cause of action
and new defendants. The court granted in part and denied in part the defendants’ second Motion
5
This court previously held as a matter of law that “expulsion” is not equivalent to
retirement. See Durham v. Martin (“Durham III”), 388 F. Supp. 3d 919, 941 (M.D. Tenn. 2019),
aff’d sub nom. Durham v. McWhorter (“Durham IV”), 789 F. App’x 533 (6th Cir. 2020).
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to Dismiss, dismissing for failure to state a claim the plaintiff’s new cause of action, which asserted
that the decision to expel Durham from the legislature constituted an unconstitutional Bill of
Attainder, and dismissing the claims against the new defendants as time-barred. The court also
dismissed for failure to state a claim for which relief could be granted the plaintiff’s claim
pertaining to his right to a state pension. However, the court denied the motion to dismiss the
plaintiff’s claim for deprivation of a vested property right to continued health insurance coverage
without due process of law, finding both that the claim was not barred by sovereign immunity and
that it was not subject to dismissal for failure to state a claim for which relief could be granted.
Durham III, 388 F. Supp. 3d at 942. The defendants appealed only on the basis that the claim was
barred by sovereign immunity, but the Sixth Circuit affirmed. Durham IV, 789 F. App’x at 534.
The plaintiff now seeks summary judgment in his favor on the grounds that the material
facts are undisputed and he is entitled to judgment as a matter of law. Specifically, he seeks only
“the restoration of the vested property right” (Doc. No. 64-1, at 19), through an injunction
reinstating his right to lifetime health insurance coverage for himself and his family that was
terminated as a result of his expulsion from the legislature (see also Doc. No. 33, at 13). His motion
(Doc. No. 64) is supported by a Memorandum of Law and Statement of Undisputed Material Facts
(Doc. Nos. 64-1, 64-2). The remaining defendants—Butch Eley, Tennessee Commissioner of
Finance and Administration, Connie Ridley, Director of Legislative Administration, and David H.
Lillard, Jr., Treasurer of the State of Tennessee, in their official capacities only—oppose the
motion. (Doc. No. 68.) Besides responding to the plaintiff’s Statement, the defendants filed their
own Supplemental Statement of Undisputed Material Facts. (Doc. Nos. 69–70.) The plaintiff has
filed a Reply and a Response to the Supplemental Statement. (Doc. Nos. 72, 72.) Although the
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facts are basically undisputed, both parties have filed evidentiary material, referenced herein as
necessary.
II.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “By its very terms, this standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The party bringing the summary judgment motion has the initial burden of identifying
portions of the record—including, inter alia, depositions, documents, affidavits, or declarations—
that it believes demonstrate the absence of a genuine dispute over material facts. Pittman v.
Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018); Fed. R. Civ. P. 56(c)(1)(A). The
non-moving party must set forth specific facts showing that there is a genuine issue for trial.
Pittman, 901 F.3d at 628.
III.
DISCUSSION
A.
Legal Standards
The plaintiff’s claim is brought under 42 U.S.C. § 1983, for deprivation of his rights under
the Fourteenth Amendment, which provides, in relevant part, that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The
due process clause has both procedural and substantive components, EJS Props., LLC v. City of
Toledo, 698 F.3d 845, 855 (6th Cir. 2012), but the court has already construed the Amended
Complaint as stating a claim for violation of the right to procedural due process. Durham III, 388
F. Supp. 3d at 937. “To establish a procedural due process claim, a plaintiff must show that (1)
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[he] had a life, liberty, or property interest protected by the Due Process Clause; (2) [he] was
deprived of this protected interest; and (3) the state did not afford [him] adequate procedural
rights.” Daily Servs., LLC v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014).
B.
Whether the Plaintiff Had a Constitutionally Protected Property Interest
An individual claiming to have a protected property interest “must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth,
408 U.S. at 577. “Property interests . . . are not created by the Constitution. Rather they are created
and their dimensions are defined by existing rules or understandings that stem from an independent
source such as state law[.]” Id.; see also EJS Props., 698 F.3d at 855 (“Whether a person has a
‘property’ interest is traditionally a question of state law.” (citing Logan v. Zimmerman Brush Co.,
455 U.S. 422, 430 (1982)). Thus, a legitimate claim of entitlement “must be grounded in some
statute, rule, or policy,” Hughlett v. Romer–Sensky, 497 F.3d 557, 567 (6th Cir. 2006), or express
or implied contract. Ludwig v. Bd. of Trs. of Ferris State Univ., 123 F.3d 404, 409 (6th Cir. 1997).
Based on these principles, the Supreme Court has found, for instance, that welfare benefits
“are a matter of statutory entitlement for persons qualified to receive them” and that such
entitlement cannot be terminated without a pretermination evidentiary hearing. Goldberg v. Kelly,
397 U.S. 254, 262 (1970). Similarly, a child cannot be “exclu[ded] from the educational process
for more than a trivial period” without due process. Goss v. Lopez, 419 U.S. 565, 576 (1975). And
state employees who, under state statute, can only be terminated for cause have a protected
property interest in their employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–
39 (1985). Likewise, the Sixth Circuit has recognized that “[p]articipation in a public housing
program is a property interest protected by due process” Woods v. Willis, 515 F. App’x 471, 478
(6th Cir. 2013) (citation omitted); that “a social security claimant has a property interest in benefits
for which he or she hopes to qualify,” Hamby v. Neel, 368 F.3d 549, 559 (6th Cir. 2004) (citing
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Flatford v. Chater, 93 F.3d 1296, 1304 (6th Cir. 1996); and that, because “Medicaid is a program
established by Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq., . . . Plaintiffs
likewise have a property interest in the TennCare coverage for which they hope to qualify,” id. at
559. Based on the same principles, at least one court has concluded that a statutorily created
entitlement to life-time health insurance for retired civil servants is a protected property right. See
Jackson v. Roslyn Bd. of Educ., 652 F. Supp. 2d 332, 343 (E.D.N.Y. 2009).
In this case, the defendants do not actually address the fact—or contest the proposition—
that, pursuant to Tenn. Code Ann. § 8-27-208, Durham had “a legitimate claim of entitlement,”
Roth, 408 U.S. at 577, to continued participation in the health insurance plan “authorized by the
state insurance committee,” Tenn. Code Ann. § 8-27-208(a)(1), once he completed one full term
as a legislator, at least up until his ouster from the legislature. The statute itself refers to this benefit
as a “right to continue[d] coverage.” Id. § 8-27-208(a)(2). Consequently, the court finds that the
right to continued participation in the state’s health insurance plan, created by state statute, gave
rise to a legitimate claim of entitlement protected by the Due Process clause.
C.
The Right to Due Process
There is no dispute that the plaintiff was deprived of this interest when the defendants
unilaterally notified him on September 26, 2016 that his insurance benefit would end effective
September 30, 2016. “Procedural due process generally requires that the state provide a person
with notice and an opportunity to be heard before depriving that person of a [constitutionally
protected] property or liberty interest.” Daily Servs., 756 F.3d at 904 (quoting Warren v. City of
Athens, 411 F.3d 697, 708 (6th Cir. 2005)).
The plaintiff points to three arenas in which he should have been, but was not, accorded
adequate process. The first of these is the Attorney General’s investigation, which led to the final
Report that Durham had engaged in misconduct. The plaintiff does not explain the source of any
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due process rights to which he might have been entitled in connection with that investigation,
however, and he fully acknowledges that the failure to accord him “procedural due process related
to the investigation . . . would have been moot . . . were it not for the legislature’s subsequent
actions.” (Doc. No. 64-1, at 12.) Because the report, standing alone, did not have any effect on
Durham’s status as a legislator or his entitlement to insurance benefits and did not provide a basis
for punitive action or criminal charges against him, the court concludes that Durham did not have
any right to due process in connection with the Attorney General’s investigation. Accord Kolley v.
Adult Protective Servs., 725 F.3d 581, 586–87 (6th Cir. 2013) (dismissing procedural due process
claims against social workers and investigators because it was the juvenile court’s duty, rather than
the investigators’, to provide notice and a hearing).
The true crux of the plaintiff’s claim is that his expulsion from the state legislature was
unconstitutional. To be clear, the plaintiff does not seek to vacate his ouster or to be reinstated to
the 109th General Assembly, which no longer exists. 6 He nonetheless ties the termination of his
insurance coverage right to an alleged constitutional violation suffered when he was expelled from
the General Assembly in violation of state law and without adequate process. Specifically, he
asserts that “[p]rocedural due process is owed to legislators who face expulsion” and that he “was
denied notice and procedural due process when the House expelled him on the basis of the onesided investigation he was given no opportunity to contest.” (Doc. No. 64-1, at 12.)
This assertion, however appealing, is firmly negated by Supreme Court and Sixth Circuit
precedent. The Supreme Court has stated that “public office is not property” protected by due
6
Such relief, in any event, would be barred by sovereign immunity and the Eleventh
Amendment. See S & M Brands, Inc. v. Cooper, 527 F.3d 500, 509 (6th Cir. 2008) (the Eleventh
Amendment bars all suits for retroactive relief against the State or state actors in their official
capacity (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 (1984)).
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process. Taylor v. Beckham, 178 U.S. 548, 576 (1900). Despite a passionate and persuasive dissent
by Justice Harlan in that case, see id. at 602 (Harlan, J., dissenting) (“I am of opinion that, equally
with tangible property that may be bought and sold in the market, an office—certainly one
established by the Constitution of a state, to which office a salary is attached, and which cannot be
abolished at the will of the legislature—is, in the highest sense, property of which the incumbent
cannot be deprived arbitrarily in disregard of due process of law.”), the Supreme Court has never
backed away from that decision. See, e.g., Snowden v. Hughes, 321 U.S. 1, 7 (1944) (reaffirming
the holding in Taylor that “an unlawful denial by state action of a right to state political office is
not a denial of a right of property or of liberty secured by the due process clause”).
Although the Supreme Court’s jurisprudence in the years after Snowden has substantially
expanded the scope of property rights protected by the Fourteenth Amendment, the lower courts
remain bound by the earlier decisions. See Velez v. Levy, 401 F.3d 75, 86–87 (2d Cir. 2005) (“We
are mindful that, since Taylor and Snowden were decided, the Court has adopted a more expansive
approach to identifying ‘property’ within the meaning of the 14th Amendment. But while
intervening cases may cast a shadow over Taylor and Snowden, it is [the Supreme] Court’s
prerogative alone to overrule one of its precedents.” (internal citations and quotation marks
omitted)). 7 The Sixth Circuit, specifically, has continued to recognize that Taylor and Snowden
are controlling. See Moncier v. Haslam, 570 F. App’x 553, 559 (6th Cir. 2014) (“Public office is
7
While it seems perverse, and even absurd, to conclude that Durham could have a protected
property interest in his health insurance benefit but not in his elected office, the relevant
jurisprudence appears to support just such a conclusion. See Taylor, 178 U.S. at 599 (Harlan, J.,
dissenting) (“[The majority has] now adjudged, that the office in dispute is not ‘property’ within
the meaning of the 14th Amendment. So that while we may inquire whether a citizen’s land, worth
$100, or his mules, have been taken from him by the legislative or judicial authorities of his state
without due process of law, we may not inquire whether the legislative or judicial authorities of a
state have, without due process of law, ousted one lawfully elected . . . .”).
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not property within the meaning of the Fourteenth Amendment.” (quoting Burks v. Perk, 470 F.2d
163, 165 (6th Cir. 1972); citing Snowden, 321 U.S. at 7)).
This court, therefore, is bound by precedent to conclude that, however lacking in process
Durham’s ouster from the state legislature may have been, he did not have a property interest in
his elected office protected by the Fourteenth Amendment, and the absence of process and even
the violation of state law associated with his ouster cannot be said to have violated his Fourteenth
Amendment right to procedural due process. Thus, to the extent Durham’s due process claim
hinges upon the denial of adequate pre-deprivation process in the course of his expulsion from the
legislature, which led to the termination of his right to continued health insurance under the state
plan, it fails on the merits.
This conclusion does not necessarily completely dispose of the plaintiff’s claim, however.
The question is whether the plaintiff can show that he was denied process to which he was due in
connection with the termination of his health insurance benefit. With respect to that deprivation,
the plaintiff asserts that the defendants denied him procedural due process at three distinct times:
(1) when they failed to provide advance notice that his expulsion from the legislature might result
in the termination of his health insurance benefit; (2) when they failed to provide him adequate
notice and a meaningful pre-deprivation opportunity to contest the termination of his benefits after
he had been expelled (see Doc. No. 64-1, at 15 (“Defendants gave Mr. Durham no time to contest
their decision—they simply informed Mr. Durham that his health benefits would cease in four
days. Defendants took the step of depriving Mr. Durham of his property right to health benefits
without any hearing or process.”); and (3) when they failed to inform him of the existence of any
type of post-deprivation procedure he might pursue to contest the termination of health insurance
benefits. (See Doc. No. 64-1, at 14–15.)
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Regarding the first claim, the plaintiff’s briefing does not incorporate any argument in
support of his contention that the defendants were required to formally notify him, prior to his
expulsion—which the defendants had no reason to expect—that his health insurance benefit would
terminate if he was expelled from the legislature. Regardless, the plaintiff’s actual position appears
to be that he reasonably believed that expulsion would not affect his right to health insurance,
based on a newspaper article in July 2016, quoting defendant Ridley as stating that “[a]ll members
of the general assembly who are elected to serve a full term of office as a member of the general
assembly are eligible to continue their health insurance by paying the appropriate premium
amount.” He alleges that, if he had known that his benefit could be terminated, he would have
retired from the General Assembly rather than face expulsion. (Durham Decl. ¶ 28.)
On this point, the court first notes that there appears to be a disputed fact and/or an
unresolved legal question as to whether mid-session resignation to avoid expulsion would have
qualified as “retirement” for purposes of the statute. The defendants do not concede as much (see
Def.’s Resp. to Stmt. Undisp. Fact, Doc. No. 69 ¶ 3 (conceding only that, if Durham had retired
after the expiration of his first term in 2014, he would have been eligible to retain retiree benefit).)
And neither party has addressed the legal aspects of the question. Moreover, the court has already
determined that a statement by Ridley—or, more accurately, an alleged statement by Ridley as
reported in a newspaper article—“cannot create a binding property interest if it is in fact
contradicted by state law.” Durham III, 388 F.3d at 940; see id. at 940–41 (“[R]epresentations and
customs may not create a property right where they are contrary to an existing statute or
regulation.” (quoting Puckett v. Lexington-Fayette Urban Cty. Gov’t, 566 F. App’x 462, 468 (6th
Cir. 2014)). In addition, even assuming that pre-expulsion resignation would have ensured
Durham’s continued entitlement to the health insurance benefit, the plaintiff’s purported reliance
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on hearsay appearing in a newspaper article, without making any further investigation or inquiry,
was objectively unreasonable; he had an independent obligation to apprise himself of what the law
actually said. The plaintiff cites to no authority in support of his suggestion that reliance on a
newspaper article could give rise to a due process violation.
With respect to the plaintiff’s claim regarding insufficient notice of post-deprivation
remedies, “[f]or one hundred years, the Supreme Court has declared that a publicly available
statute may be sufficient to provide such notice because individuals are presumptively charged
with knowledge of such a statute.” Grayden v. Rhodes, 345 F.3d 1225, 1239 (11th Cir. 2003)
(citations omitted); see City of W. Covina v. Perkins, 525 U.S. 234, 241 (1999) (holding that
“individualized notice of state-law remedies” of post-deprivation procedure was not required when
those remedies “are established by published, generally available state statutes and case law”). In
short, the defendants had no obligation to notify the plaintiff of the existence of the state’s statutory
or regulatory procedure for challenging the termination of his health insurance coverage.
The only question properly before the court, then, is whether the defendants were required
to provide the plaintiff with adequate notice (more than four days) and a meaningful opportunity
to contest the termination of his benefits after the expulsion.
D.
What Process Was Due?
Generally, to comport with due process, a state must provide pre-deprivation procedures
before taking property, regardless of the adequacy of its post-deprivation remedies. Zinermon v.
Burch, 494 U.S. 113, 132 (1990). And to determine the adequacy of the procedure accorded, courts
apply the balancing test developed in Mathews v. Eldridge, 424 U.S. 319 (1976), which requires
the weighing of three factors: (1) “the private interest that will be affected by the official action”;
(2) “the risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards”; and (3) “the
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Government’s interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.” Id. at 335. 8
Addressing these factors, Durham argues that he was afforded, at best, “abbreviated
process” and that, under the first Mathews factor, his interest in lifetime health insurance benefits
was a “substantial property interest” affected by the defendants’ action. Mathews, 424 U.S. at 335.
As for the second factor, the plaintiff asserts that the risk of erroneous deprivation through the
procedures used was high, as he was never permitted to question the evidence against him that led
to his ouster and the termination of his health insurance benefit, and there was no contested factfinding process. He also contends that the probable value of additional or substitute procedural
safeguards—specifically post-deprivation process—does not excuse the absence of predeprivation process, because, as the plaintiff states,
[e]ven if Defendants were to hold a hearing and find factually for Mr. Durham, that
would not undo the expulsion, which per Defendants’ position and this Court’s
prior rulings, makes it legally necessary that Mr. Durham not receive benefits. In
other words, there is no post-deprivation procedure that the state could provide that
would restore Mr. Durham to the position he was in prior to the deprivation of due
process.
(Doc. No. 64-1, at 16.) On the strength of this argument, he concludes that the second Mathews
factor weighs in his favor as well. (Id.) As to the final factor, Durham maintains that the
government’s interest in denying him health insurance benefits is minimal in light of the fact that
“every other person elected to the legislature who completes a full term” is entitled to such
8
The failure to provide pre-deprivation process may, however, be excused under the socalled “Parratt doctrine,” Parratt v. Taylor, 451 U.S. 527, 539 (1981), “(1) the deprivation was
unpredictable or ‘random’; (2) predeprivation process was impossible or impracticable; and (3)
the state actor was not authorized to take the action that deprived the plaintiff of property or
liberty.” Daily Servs., 756 F.3d at 907 (quoting Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.
1995)). However, in this case, the parties do not actually address the Parratt doctrine. The court
therefore accepts the plaintiff’s uncontested presumption that the Parratt doctrine is not
implicated.
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coverage and that no one would be harmed by extending him the same benefit and thus, that “there
is no government interest to justify denying Mr. Durham due process.” (Id. at 17.)
For their part, the defendants do not actually address the Mathews factors. Instead, they
argue that, because he was expelled from the legislature, Durham no longer had a right to health
insurance benefits and, as a result, no right to due process associated with the termination of that
benefit. The court is not persuaded. The plaintiff had a protected property interest in continued
health insurance benefits. He was accorded what would clearly constitute, at best, abbreviated
process in connection with his expulsion from the legislature. Although, as set forth above, the
House did not owe him any particular process, Durham did have a protected interest in the health
insurance benefit. As a result, he was entitled to adequate process in connection with the
termination of that benefit. 9
Anticipating the possibility that the court might conclude as much, the defendants argue in
the alternative that, even assuming that he was entitled to process, the plaintiff could have, but did
not, avail himself of the state’s post-deprivation process. Specifically, they contend that the
plaintiff had multiple paths available under state law to challenge the Tennessee Benefits
Administration’s termination of his health insurance coverage. First, he could have pursued an
appeal of that decision under Tenn. Code Ann. § 8-27-102. A decision rendered in such an appeal
would then have been reviewable under the procedures outlined in the Tennessee Uniform
Administrative Procedures Act (“APA”), Tenn. Code Ann. §§ 4-5-301 et seq. Under the APA,
parties have the ability to conduct discovery and to present documentary evidence and witness
9
Clearly, if the House had accorded Durham adequate notice and a contested hearing
before ousting him from the legislature, that type of procedure, even though not required, would
likely also have provided all the process to which Durham would have been entitled in association
with the termination of his health insurance benefit as well.
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17
testimony. See Tenn. Comp. R. & Regs. 1360-04-01-.11 & 1360-04-01-.16. Alternatively, Durham
could have requested a declaratory order from the Benefits Administration under Tenn. Code Ann.
§ 4-5-223, which allows an “aggrieved party” to “petition an agency for a declaratory order as to
the validity or applicability of a statute, rule or order within the primary jurisdiction of the agency.”
A declaratory order would then be reviewable by the Chancery Court and the Tennessee Court of
Appeals, and the plaintiff, through this process, could have challenged “the agency’s application
of a statute or rule as unconstitutional” or “the constitutionality of the procedure used by an
agency.” Colonial Pipeline v. Morgan, 263 S.W.3d 827, 843 (Tenn. 2008). They argue that,
because the state offered post-deprivation process of which the plaintiff failed to avail himself, the
plaintiff’s due process claim fails for this reason as well.
The defendants go on from there, however, to agree with the plaintiff’s conclusion that any
post-deprivation remedy would have been futile. The defendants specifically posit that, because
the plaintiff had been expelled from the legislature, he did not qualify as a retiree, and, as a matter
of state law, he was no longer entitled to continued health insurance coverage. (See Doc. No. 68,
at 8 (“Plaintiff’s expulsion set him on a collision course for denial of his retiree health benefits; so
long as the expulsion is on the books, that is the only possible outcome under the statute.”).) As
set forth above, the plaintiff agrees: “[T]here is no post-deprivation procedure that the state could
provide that would restore Mr. Durham to the position he was in prior to the deprivation of due
process.” (Doc. No. 64-1, at 16 (emphasis added).)
The plaintiff does not actually dispute the availability of the post-deprivation procedures
identified by the defendants. Instead, he simply agrees with the defendants that pursuing the
available post-deprivation remedies would have been futile. The court, however, does not agree.
The plaintiff only contends that post-deprivation process would have been futile because he wants
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18
the court to reinstate his benefits rather than simply award him the process he was denied, as
discussed below. And the defendants assert that the process would have been futile on the basis
that their interpretation of state law mandates that the plaintiff be denied continued health insurance
coverage, no matter what recourse the plaintiff sought. But neither of these positions actually
establishes—as a matter of either fact or law—that additional process would have been futile in
this case. To establish the inadequacy of post-deprivation procedures, the plaintiff must actually
prove that it would have been futile to pursue post-deprivation remedies. See Copeland v.
Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Ragland v. Comm’r N.J. Dep’ of Corr., 717
F. App’x 175, 177 (3d Cir. 2017) (“[The] post-deprivation remedy must be ‘meaningless or
nonexistent’ to be inadequate.” (quoting Hamlin v. Vaudenberg, 95 F.3d 580, 585 (7th Cir. 1996));
Barhite v. Trierweiler, No. 2:13-cv-169, 2014 WL 5782638, at *9 (W.D. Mich. Nov. 6, 2014)
(“[I]n order to satisfy due process, the post-deprivation remedy does not have to guarantee a
successful outcome, nor is [it] required to provide relief equivalent to that available in a § 1983
action.” (citing Parratt, 451 U.S. at 543–44)).
The parties’ assertion in this case that post-deprivation process would have been futile is
not proof; it is speculation. If Durham had pursued post-deprivation process, he would, at the very
least, have had the ability to argue to several different decision-makers during that process that his
ouster, and therefore his change in status, was illegal. He also could have argued to these different
decision-makers that the interpretation of state law by these defendants is wrong. He has not shown
that a finding in his favor on these issues would not have permitted state authorities to reinstate his
benefits, even if they did not have the power to reinstate him to his elected office. See Bohler v.
City of Fairview, No. 20-5016, 2020 WL 6483126, at *4 (6th Cir. Nov. 4, 2020) (“Bohler did not
even request a postdeprivation hearing, making it difficult for him to show the hearing would have
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19
been inadequate.”); Cole v. Warren Cty., No. 1:11-CV-00189-JHM, 2012 WL 1950419, at *8
(W.D. Ky. May 30, 2012) (“The Plaintiffs have not pursued any post-deprivation remedies and,
therefore, cannot allege that their post-deprivation remedies were inadequate to remedy the
deprivation.”).
In sum, the court finds that the plaintiff has failed to establish, as a matter of fact or law,
that a post-deprivation remedy would have been insufficient to excuse the absence of predeprivation process. He has not shown that the second Mathews factor weighs in his favor.
Consequently, he also cannot show that additional or substitute procedural requirements would
have been necessary, so the third factor, the government’s interest, likewise does not weigh in
favor of finding a due process violation. Weighing the Mathews factors, the court finds that the
plaintiff has not established a violation of his due process rights and that he is not entitled to
summary judgment in his favor.
E.
Alternatively: No Available Remedy
To be clear, aside from arguing that he was owed due process by the House before being
kicked out of the legislature, the plaintiff does not argue that the provision of pre-deprivation
process in his case would have made a difference to his claim for continued health insurance
coverage. And, although he could have done so, the plaintiff does not request relief in the form of
an injunction requiring the defendants to accord him pre-deprivation process he was denied prior
to the termination of his health insurance benefit. He specifically contends, instead, that any
additional process would have been futile. 10 At the same time, the plaintiff expressly recognizes
that the ordinary remedy for a due process violation would be to issue an injunction requiring the
10
For the same reasons as discussed above, the court is not convinced that the provision of
pre-deprivation process would have been futile.
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20
defendants to provide the requisite process. (See Doc. No. 64-1, at 17 (“In many instances, the
remedy for a procedural due process violation is to provide the process that should have been
provided.”).) The court, even if it found a due process violation, would not grant relief that was
not actually requested and which, instead, the plaintiff affirmatively disclaims.
The plaintiff maintains that, in this case, the appropriate remedy—“the only real remedy
possible under these circumstances”—is an “injunction restoring his health benefits.” (Doc. No.
64-1, at 17.) He argues that the court “cannot order that Mr. Durham be given process as a remedy
because it would not address his injury.” (Id.) This is because (1) “it is too late for the legislature
to give him process, since it was adjourned four years ago and cannot be brought back into session”
and (2) “any post-deprivation process provided by Defendants would necessarily be inadequate
because, having been expelled (however improperly), Mr. Durham is unable to obtain benefits as
a matter of state law.” (Id. at 16–17.)
The plaintiff’s argument is hopelessly circular. His due process claim related to the
deprivation of his health insurance benefit is inextricably intertwined with his claim that he was
entitled to due process before being expelled from the legislature. The cases upon which he relies
confirm as much. First, he cites McCarley v. Sanders, 309 F. Supp. 8 (M.D. Ala. 1970), in which
an Alabama district court ruled in favor of a state senator who brought suit claiming that his
expulsion from the state legislature violated due process. The court vacated the expulsion,
effectively reinstating him to the senate and awarding backpay (without addressing the question
of sovereign immunity). See id. at 11–12. The court dismissed the defendants’ contention, based
on Snowden and Taylor, that the plaintiff did not have a property interest in his senate seat:
[I]t is now well established that the State’s interest must be balanced with the
interests of the individual, and that a person may not be discharged or expelled from
a state public office upon a ground involving criminal guilt, infamy, disgrace, or
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21
other grave injury to the individual until after such notice and hearing as is requisite
to due process of law.
McCarley, 309 F. Supp. at 11 (citing Wieman v. Updegraff, 344 U.S. 183, 191, 192 (1952);
Slochower v. Bd. of Higher Educ., 350 U.S. 551, 555, 556 (1956); Cafeteria & Rest. Workers
Union v. McElroy, 367 U.S. 886, 898 (1961)). None of the authority cited in McCarley concerned
elected officials, however, and, as set forth above, this court is bound by the Sixth Circuit’s
determination that Snowden and Taylor remain good law. 11
The plaintiff also relies on Galbreath v. Hale County, No. 15-308-CG-N, 2017 WL
3402964 (S.D. Ala. Aug. 8, 2017), which held that “reinstatement is an available remedy for a pretermination procedural due process violation.” Id. at *2. It is presumably for that premise that the
plaintiff cites Galbreath, but the court there went on to hold that reinstatement as a remedy is
available “only where a tenured employee would not have been dismissed if his procedural due
process right had been observed.” Id. at *3 (quoting Hopkins v. Saunders, 199 F.3d 968 (8th Cir.
2000)). By analogy, then, Hopkins and Galbreath indicate that reinstatement of Durham’s benefit
in this case would be appropriate if the plaintiff could establish that he would have been entitled
to the benefit if he had been accorded due process. Here, the plaintiff asserts that he would not
have been ousted from the legislature if he had been accorded due process. But, to emphasize the
point, the court reiterates that Durham was not entitled to any kind of process in connection with
11
The Fifth Circuit appears to be the only federal appellate court to have concluded that
Taylor and Snowden are no longer binding. See, e.g., Gordon v. Leatherman, 450 F.2d 562, 565
(5th Cir. 1971) (citing approvingly the district court’s conclusion, but without reference to any
other authority, that “[a] an elected official ‘has a property right in his office which cannot be taken
away except by due process of law’”); see also Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979)
(“An elected city official who is entitled to hold an office under state law has a property interest
in his office which can be taken from him only by procedures meeting the requirements of due
process.” (citing Gordon, 450 F.2d at 565), and Bishop v. Wood, 426 U.S. 341 (1976), which
involved the termination of a city police officer without a hearing).
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22
the House’s expelling him from his elected position. Further, he states that he would not have been
entitled to reinstatement of his health insurance benefit if he had been accorded procedural rights
in connection with that termination. He therefore cannot establish, based on Hopkins or Galbreath,
that reinstatement is warranted. He seeks no other remedy and, therefore, would be entitled to
none, even if he had established a due process violation.
IV.
CONCLUSION
For the reasons set forth herein, the plaintiff’s Motion for Summary Judgment (Doc. No.
64) will be denied. An appropriate Order is filed herewith.
ALETA A. TRAUGER
United States District Judge
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