RECIPIENT OF FINAL EXPUNCTION ORDER IN MCNAIRY COUNTY CIRCUIT COURT CASE NO. 3279 v. DAVID B. RAUSCH, DIRECTOR OF THE TENNESSEE BUREAU OF INVESTIGATION, AND TENNESSEE BUREAU OF INVESTIGATION
No. M2021-00438-SC-R11-CV
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
May 27, 2022
January 26, 2022 Session
In this interlocutory appeal, we address whether the Tennessee Bureau of Investigation (“the TBI“) may refuse to comply with a final expungement order issued by a trial court. We conclude that the TBI lacks authority to refuse to comply with a final expungement order. Thus, we reverse the trial court‘s judgment, grant the Plaintiff‘s motion for partial judgment on the pleadings, and remand this matter to the trial court for any further proceedings consistent with this opinion.
SHARON G. LEE, J., delivered the opinion of the Court, in which ROGER A. PAGE, C.J., and JEFFREY S. BIVINS and HOLLY KIRBY, JJ., joined.
Daniel A. Horwitz and Lindsay B. Smith, Nashville, Tennessee, for the appellant, Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279.
Herbert H. Slatery III, Attorney General and Reporter; Andree Sophia Blumstein, Solicitor General; and Robert W. Mitchell, Miranda H. Jones, and Mallory K. Schiller, Assistant Attorneys General, Law Enforcement and Special Prosecutions Division, for the appellees, David B. Rausch, Director
OPINION
I.
This appeal arises from the trial court‘s denial of cross-motions for partial judgment on the pleadings. The parties do not dispute the relevant facts, and the following summary derives from the allegations of the complaint, which are taken as true, and from admissions in the record.2
In February 2015, the Plaintiff, an unnamed citizen of McNairy County, Tennessee, negotiated a judicial diversion agreement3 in McNairy County Circuit Court Case Number 3279.
By February 2019, the Plaintiff had successfully completed four years of probation. He petitioned for expungement of his records and paid the then-applicable $350 expungement fee.5 The State of Tennessee, through an assistant district attorney general, consented to expungement and submitted an agreed, joint, proposed expungement order to the trial judge, who approved and entered the order on February 19, 2019. The order provides:
It is ordered that all PUBLIC RECORDS relating to such offense above referenced be expunged and immediately destroyed upon payment of all costs to clerk and that no evidence of such
records pertaining to such offense be retained by any municipal, county or state agency, except non-public confidential information retained in accordance with T.C.A. § 10-7-504 andT.C.A. § 38-6-118 .
(Emphasis added). Neither the State nor the Plaintiff filed any post-judgment motion or appeal following entry of the expunction order. The TBI did not seek to intervene in the expungement proceeding.
Thirty days later, in March 2019, the expunction order became final. State v. Allen, 593 S.W.3d 145, 154 (Tenn. 2020) (“[A] trial court‘s order becomes final thirty days after its entry, unless a timely notice of appeal or appropriate post-trial motion is filed.“). A copy of the expunction order was sent to the TBI within thirty days of its entry as required by law.6 The TBI‘s receipt of the expunction order triggered another statute,
Later in 2019, however, the Plaintiff learned that the TBI had not removed all records related to Case No. 3279 from his criminal history and had continued to report the existence of one of the expunged charged offenses. The Plaintiff, through counsel, notified the TBI by email that it should abide by the expunction order and that its noncompliance violated the expunction order and state law. The TBI responded that it had been advised by an assistant attorney general with the Tennessee Attorney General‘s Office that the TBI did not have to remove the expunged records from the Plaintiff‘s criminal history because
The Plaintiff sued the TBI in the Chancery Court for Davidson County,7 and as relevant to this appeal, sought declaratory and injunctive relief under
The Plaintiff argued that final expunction orders are binding on the TBI and that it cannot substitute its judgment of an offense‘s eligibility for expungement for the determination of a court. The Plaintiff also asserted that principles of res judicata
In March 2021, the trial court ruled on the motions, rejecting the TBI‘s challenge to subject matter jurisdiction and concluding that
Applying this ruling, the trial court declined to grant either party‘s motion for partial judgment on the pleadings, explaining that the pleadings did not establish whether Case No. 3279 involved a sexual offense for purposes of the exception the trial court had recognized. The trial court also reserved a ruling on the TBI‘s motion to file under seal the unredacted criminal record in Case No. 3279.
In April 2021, the trial court denied the Plaintiff‘s motion to revise the March 2021 order but allowed the Plaintiff to seek an interlocutory appeal under
We review de novo with no presumption of correctness the trial court‘s ruling on the cross-motions for judgment on the pleadings under
Subject Matter Jurisdiction and Sovereign Immunity
The TBI challenges the trial court‘s subject matter jurisdiction over the Plaintiff‘s claim based on sovereign immunity. The Plaintiff maintains that the TBI waived this argument by failing to seek an interlocutory appeal from the trial court‘s ruling.
The scope of review in interlocutory appeals is narrower than the scope of review in appeals as of right. Parties to an appeal as of right have broad latitude about the issues that may be raised, while review in an interlocutory appeal is limited to the issues certified by the lower courts and to “those matters clearly embraced within” the issues certified. Sneed v. City of Red Bank, 459 S.W.3d 17, 22 (Tenn. 2014) (quoting Tenn. Dep‘t of Mental Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975)). But subject matter jurisdiction is “a threshold inquiry, which may be raised at any time in any court.” Johnson v. Hopkins, 432 S.W.3d 840, 844 (Tenn. 2013). This is true because “[s]ubject matter jurisdiction refers to a court‘s lawful authority to adjudicate a legal matter.” New v. Dumitrache, 604 S.W.3d 1, 14 (Tenn. 2020) (citing Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 2012)). It is the legal concept that “confines judicial power to the boundaries drawn in constitutional and statutory provisions,” Turner v. Turner, 473 S.W.3d 257, 270 (Tenn. 2015) (first citing Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982); and then citing Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)), and subject matter jurisdiction cannot be conferred by consent or waiver. New, 604 S.W.3d at 15 (citing Tennessean v. Metro. Gov‘t of Nashville, 485 S.W.3d 857, 863 (Tenn. 2016)). Thus, the TBI did not waive its challenge to subject matter jurisdiction by failing to seek an interlocutory appeal on the issue. We will address the merits of the TBI‘s challenge to the trial court‘s subject matter jurisdiction.
Sovereign immunity—the common law doctrine that the State cannot be sued without consent in its own courts—is embodied in the constitutional provision that permits suits against the State only “in such manner and in such courts as the Legislature may by law direct.” Smith v. Tenn. Nat‘l Guard, 551 S.W.3d 702, 708 (Tenn. 2018) (quoting
Courts will construe a statute as a waiver of sovereign immunity only if the statute “‘clearly and unmistakably’ express[es] the General Assembly‘s intent to permit claims against the State.” Smith, 551 S.W.3d at 709 (quoting Davidson v. Lewis Bros. Bakery, 227 S.W.3d 17, 19 (Tenn. 2007)). In determining whether a statute satisfies this standard, we focus “on the actual words chosen and enacted by the legislature.” Id. (quoting Mullins v. State, 320 S.W.3d 273, 283 (Tenn. 2010)). We give effect to the legislature‘s intent by applying the text without broadening or narrowing its intended scope; if the statute is clear, we apply the plain meaning without further complication. See Colonial Pipeline, 263 S.W.3d at 836; Milan Supply Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 159 (Tenn. 2021). These principles ensure that courts do not encroach upon the General Assembly‘s “exclusive power to waive Tennessee‘s sovereign immunity.” Smith, 551 S.W.3d at 708-09 (citing Sneed, 459 S.W.3d at 23).
The General Assembly clearly and unmistakably waived sovereign immunity by enacting
“Notwithstanding any law to the contrary, a cause of action shall exist . . . for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action. A cause of action shall not exist under this chapter to seek damages.”
Tenn. Code Ann. § 1-3-121 (Supp. 2021) (emphases added).
The plain meaning of this text expressly recognizes the existence of causes of action “regarding the legality or constitutionality of a governmental action” that seek declaratory or injunctive relief. Causes of action “regarding the legality or constitutionality of a governmental action” must of necessity be brought against governmental entities, and no statutory text excludes the State from the broad term “governmental entities.” The use of this language distinguishes
The TBI, though, insists that
TBI Authority to Refuse to Comply with Final Expunction Orders
We turn next to the certified question—under what circumstances, if any, may the TBI refuse to comply with a final expungement order issued by a trial court. The TBI claims that statutes obligate it to disregard final expunction orders encompassing offenses that are statutorily ineligible for expungement. The Plaintiff responds that statutes simply obligate the TBI to remove expunged records from a person‘s criminal history within sixty days of receipt of an expunction order and entrust courts with adjudicating whether an offense is eligible for expungement. We agree with the Plaintiff.
The general expungement statute requires persons seeking expungement to “petition the court in which the petitioner was convicted of the offense” for which expungement is sought.
Any court ordering the expunction of a person‘s public records of a criminal offense, including orders issued as a result of the successful completion of a . . . judicial diversion program, shall send or cause to be sent a copy of the expunction order to the [TBI] within thirty (30) days from the date of the expunction order for entry into its expunged offender and pretrial diversion database.
Similarly, the provisions of the judicial diversion statute relating to expungement, which apply specifically to the Plaintiff, also do not assign the TBI any responsibility in the process by which a court adjudicates an expungement petition.12 Instead, when charges are dismissed and a person is discharged in judicial diversion proceedings, the person
may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the court under subsection (a) and the public records that are defined in
§ 40-32-101(b) , all recordation relating to the person‘s arrest, indictment or information, trial, finding of guilty and dismissal and discharge pursuant to this section; provided, that no records of a person who is dismissed from probation and whose proceedings are discharged pursuant to this section shall be expunged if the offense for which deferral and probation was granted was a sexual offense as defined by§ 40-39-202 .
If the court determines, after hearing, that the person was dismissed and the proceedings against the person discharged, it shall enter the order. The effect of the order is to restore the person, in the contemplation of the law, to the status the person occupied before the arrest or indictment or information.
Like the general expungement statute, the judicial diversion statute assigns to the court the task of adjudicating the expungement petition and requires the TBI to enter information from expunction orders into its expunged criminal offender and pretrial diversion database,
No statute precludes district attorneys general from consulting the TBI on expungement petitions. Indeed, the expungement statute may well contemplate that such consultations will occur, as it provides sixty days for district attorneys general to submit recommendations to the court on expungement petitions.
To hold that the TBI possesses such authority would eviscerate principles of res judicata, which serve the core judicial function of settling disputes between contending parties. Regions Bank v. Prager, 625 S.W.3d 842, 847 (Tenn. 2021) (quoting Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991)). Res judicata, or claim preclusion, “bars a second suit between the same parties or their privies on the same claim with respect to all issues which were, or could have been, litigated in the former suit.” Id. (quoting Elvis Presley Enters., Inc. v. City of Memphis, 620 S.W.3d 318, 323-24 (Tenn. 2021)). As a “rule of rest,” res judicata promotes finality, consistency, and economy in our justice system. Elvis Presley Enters., 620 S.W.3d at 324 (quoting Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012)).
Res judicata “is not based on any presumption that the final judgment was right or just. Rather, it is justifiable on the broad grounds of public policy which requires an eventual end to litigation.” Regions Bank, 625 S.W.3d at 847 (quoting Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976)); Restatement (Second) of Judgments, § 17 cmt. d (Am. L. Inst. 1982). To paraphrase Justice Robert Jackson, a final judgment is not final because it is infallible; it is infallible only because it is final. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) (describing the authority of the Supreme Court of the United States), superseded by statute on other grounds, Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, as recognized in Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Recourse for judicial error may be sought by an appeal or a proper request for relief from a final judgment—not by an attempt to relitigate a final order in a second lawsuit. See Restatement (Second) of Judgments, § 17 cmt. d, reporter‘s note.
The TBI has established no basis for disregarding the res judicata effect of the Plaintiff‘s final expunction order. The doctrine of res judicata bars the government, just like any other person within its jurisdiction, from relitigating its claims and defenses against the same parties. See Alaska Dep‘t of Env‘t Conservation v. E.P.A., 540 U.S. 461, 490 n.14 (2004) (“Preclusion principles . . . unquestionably do apply against the United States, its agencies and officers.“); United States v. Mendoza, 464 U.S. 154, 162-63 (1984) (holding that there is an exception for nonmutual collateral estoppel against the United States but not, “of course,” for res judicata).
A party relying on res judicata must establish four elements: “(1) that the underlying judgment was rendered by a court of competent jurisdiction; (2) that the same parties or their privies were involved in both suits; (3) that the same claim or cause of action was asserted in both suits; and (4) that the underlying judgment was final and on the merits.” Regions Bank, 625 S.W.3d at 848. The Plaintiff has established these four elements in this proceeding. The Circuit Court of McNairy County unquestionably had jurisdiction over the expungement petition.
The Plaintiff‘s expunction order is res judicata and binding on the State and the persons and entities in privity with the State, including the TBI. As the Supreme Court of the United States has recently stated, if citizens “must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021). For all these reasons, we conclude that the TBI lacked authority to refuse to comply with the Plaintiff‘s expunction order. The determination of whether an offense is eligible for expunction is an obligation entrusted to courts, not the TBI.
The Plaintiff successfully completed judicial diversion, the charges against him were dismissed, and he petitioned to expunge those charges. The State, acting through its representative, the District Attorney General, consented to the expungement order. The circuit court entered the expungement order. After thirty days, the expungement order became final. The TBI received a copy of the expungement order. The TBI‘s only responsibilities at that point were to enter information about the Plaintiff into its expunged criminal offender and pretrial diversion database and remove the expunged records from the Plaintiff‘s criminal history within sixty days of receipt of the expunction order.
III.
The judgment of the trial court is reversed, and the Plaintiff‘s motion for partial judgment on the pleadings is granted. This matter is remanded to the trial court for any further proceedings consistent with this opinion. Costs of this appeal are taxed to David B. Rausch, Director of the Tennessee Bureau of Investigation, and the Tennessee Bureau of Investigation.
SHARON G. LEE, JUSTICE
Notes
The court may defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty and with the consent of the qualified defendant. The deferral shall be for a period of time not less than the period of the maximum sentence for the misdemeanor with which the person is charged or not more than the period of the maximum sentence of the felony with which the person is charged.
No order deferring further proceedings and placing the defendant on probation as authorized by this subsection (a) may be entered by the court on or after July 1, 1998, unless there is attached to it a certificate from the Tennessee bureau of investigation stating that the defendant does not have a prior felony or Class A misdemeanor conviction.
is only a certification that according to its expunged criminal offender and pretrial diversion database the defendant is not disqualified from deferral and probation under this section by virtue of a prior felony or Class A misdemeanor conviction. The certificate is not a certification that the defendant is eligible for the deferral and probation, and it shall continue to be the duty of the district attorney general, and judge to make sufficient inquiry into the defendant‘s background to determine eligibility.