# FILED
October 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk ROCKY LEE COKER, ) ) Davidson Brd. & Tenn. Cl aims Claimant/Appellant, ) Commission ) Claim No. 97003162 VS. ) ) Appeal No. DON SUNDQUIST, and the STATE ) 01A01-9806-BC-00318 OF TENNESSEE CLAIMS ) COMMISSION, ) ) Defendants/Appellee

s. )
IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE TENNESSEE CLAIMS COMM ISSION AT NASHVILLE, TENNESSEE HONORABLE W. R. BAKER , COMMISSIONER, MID DLE DIVISION Rocky Le e Coke r, C.P .L. STSRCF, Unit 6, #108069 Route 4, Box 600 Pikeville, Tennessee 37367 PRO SE/CLAIMANT/APPELLANT
JOHN KNOX WALKUP Attorney General and Reporter Ms. Heather C. Ross Assistant Attorney General Cordell Hull Building, Second Floor 426 5th Avenue Nor

th Nashville, Tennessee 37243-0499 ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE CONCUR IN THE RE

SULTS: WILLIA M C. KOCH, JR., JUDGE-2-

ROCKY LEE COKE

R, )

) Davidson Brd. &

Tenn. Claims Claimant/Appellan

t, ) Commission ) Claim No. 97003162 VS. ) ) Appeal No. DON SUNDQUIST, and the STATE ) 01A01-9806-BC-00318 OF TENNESSEE CL

AIMS ) COMMISSION, ) ) Defendants/App

ellees. ) 

## O P I N I O N

The captioned claima

nt has appealed f

rom the order of t

he Claims Commission rejecting the claimant’s claim for failing to state a claim for which relief can be grante d.

Claimant’s “Amend

ed Complaint” state

s: 16. At all times material in this caus e, plaintif f was confinedon Unit 2 at Riverben d Ma ximum Security Institution(RMSI) in Nashville, Tennessee. Unit 2 , RMS I, is the housing unit for

those inmates sentenced to death, and is a small isolated group of

inmates separated

from the general population of inmat

es.
- - - - DESCRIPTION OF INCI DENT Date of Occurrence : On or

about 2/10/96 Time: A.M./P.M. Location: Knoxville/Nashville, TN State Agency involved: Governor Don Sund

quist 1. On or about February 10, 1996, the defendant Don Sundquist, with m alicio us intent to injure plaintiff, published, or caused to be written a nd pu blished, of and conc ernin g plaintiff, in a certain newspaper called the Knoxville N ew s Sentinel, printed and published at its Nashville Bureau, Davidson County, Tenne s see, and Knox v ille, Knox County, Tennessee, as well as throughout other areas across the State o f Tennessee, and having a l arge circulation in said County of Davidson, wherein plaintiff then andthere resided, certain false, malicious, and libelous statement s and the wor ds and figure s followin g: 2. Defendant

Sundquist, in his statements of and concerning plainti ff, p ublished, inter alia , that plaintiff had committed the felonious crimes of mass murder and rape, and specifically “That [plaintiff] was the guy who committed 14 murders and two rapes on d eath row,” and th

at plainti f

f “commi tt edthe [m]ost grievous crime[s] imaginable.” A copy of said

publication is atta

ched hereto as Exhibit A
.-3- No Exhibit A appears in

the record

before this Court. However, attached to the amended complaint is an unid

entified photosta

tic document rea

ding as follows: DISHING OUT CRITICI SM Nashville - “I’m a pussy cat,”

Gov. Don Sundquist says. That

remark came last week when a radio reporter askedabout accusations that he is “mean-spirited” in some of his dealings in sta

te government. At the prompting of p

ress secretary Beth Fortune, the governor responded to one such accusation from some of the inmates of death

row. They accuse the governor of be ing “mean spirited” because he took away their satellite dish. Three inmates and four citizens have filed a federal lawsuit aga inst th e governor and correction officials, claiming the satellite dish was paid for by donors and that the governor had no right to re

move it. “That was the guy

who committed 14 murders and two rapes on death row who said I’m mean spirited,” Sundquist said. “If the

y think I ’m mean-spirited , I would question the origin

of the statement.

How can someone who’s committed the most grievous cr imes imaginable -

who is slated to be executed - expect to have television access that most people in Tennessee don’t have” “A satellite dish with a

ll the Playboy channels may be dangerous to their health.” The dish carried HBO and Cinemax to the prisons at Nashville’s Rive rbend Maximum Security Institution. The suit was filed b y conv icted murders Terry King, Rocky Lee Coker and Michael Sample. Sunquist also commented on a

remark he made w

hile attending the National Governor’s Association meet ing in Washington, D.C., last week. Sundquist called R ep ublican presiden tial candidate Steve Forbes “goofy.”

At the time, the governor was wearing a la rge c owb oy ha t th at s ome mig ht l abel goof y. “I probably sh

ouldn’t have said

that,” Sundquist sai

d of the reference t

o Forb es. “Sometimes y ou’re brutally hones t, and I’m doing my best to obey the 11t h Commandment to not speak ill of another Republican. “But s ometim es you have to call them like you see them. I’m going to try to do better.”

- - - --4- 17. Defe ndant’s article in this matter, and attach e d to the original cla

im as Exhibit

A, i s entitled “Dishing Out Critici sm- Sundquist lashes death row convicts who called him ‘mean spirited.’ ” The statements in the article we r e in tention ally

made by defendant Sundquist, in a false and misleading manner, in re taliati on for a civil action brought against him by three inmates names in the article. 18. The statements made by defendant were thereforemade specifically about the small group of

inmates in the article, of which plaintiff was a member, were false, misleadin g, and the statement s were directed

at plaintiff. This is bec ause p laintiff’s name is explicitly stated in the article, andplai ntiff i s one of the three inmates in the small group who brought the civil action. Any reasonable person reading the article would know that defendant’s statement s were a direct, malicious and retaliatory act by defendant

against the smallgroup of inm a tes generally and against plaintiff part icu lar ly.
The Order of the

Commission states: The main reason why

this Commission finds this to be a claim on which relief ca nno t be granted is that the newspaper

article in questio

n is not libelous or inj urious at all. Any body who reads that newspaper article gets the messa ge: men who have been sentenced to death in a Tennessee Court deserve to be deprived of entertainment, and when such men use language like “mean spirited” and go to Court to

get their entertainment

back thenthey are being

ridiculous. Anybody who reads that n

ewspa per article recognizes that the quotation, “That

was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” was an exaggeration, just a piece of mockery; anybody who reads that newspaper

sees that this statement is not statistically precise. All human-beings - -not just hold ers of high offices and newspaperwomen-- use exaggera tion sometime s. People may say that men sentenced to death by Tenne ssee juries have “committed the m ost gri evous crimes imaginable,” while they know that only peo

ple like Mao Tse-Tung a

nd Pol Pot really have “committed the most grievous crimes ima ginable .” We all talk like that

sometimes, and talking like that is not slander or libel. And there is a very good reason why

it is not slander or libel: because

nobody who he

ars it takes it with nit-picking precision. Take the case

of the mother who s

ays to her child, “You’rejus t th e wo rst lit tle boy I’ ve ever seen!” Nobody would say t o he r se rio usl y, “You’re a liar! You’ve seen two little boys this morning who are worse than he is! ” This claimant is argu

ing that mockery

is libel, and it is not.

- - - - Th e State’s motion to dismiss is granted. The complaint, as amended, is dismissed.-5- On appeal, the cl

aimant presents th

e following issue

s; I. Whether

the Claims Commission er r ed in dismissing Plaintiff’s complaint for libel andgroup libel, and erroneou sly

f ound that Defenda

nt Sundquist’s state

ments in the article about Plaintiff were not libelous or injur

ious at all? II. Whether

the Cl a ims Commission erred in dismissing Plaintiff’s complaint, thereby failing to consider Plaintiff’s claims of infliction of humiliation and emotional dis tre ss, and fal se l ight inv asi on o f pr iva cy?
Pr ior to consideration of appellant’s issues, it must be recognized that this is a c lai m against the state andnot a lawsuit against a newspaper or the person whose alleged oral remar ks were allegedly published by the newspaper.
T.C.A. § 9-8-112 pr

ovides in pertinen

t part as follows: Final ju d gments against state employees. - (a) The boardof claims is

authorized to pay

final judgments f

or state employees,

as defined in § 8-42-101, f or a ny damage

s, including interest

there on, which are awarded in a final judgment in a civil lawsuit

against the employee in a court of co mpetent

jurisdiction where it is determined by the boa r d that the incident on whi

ch such damage

s w ere awarded occurred when the employee was

acting in good faith with in the scope of such employee’s official duty and under apparent lawful authority

or orders. (1) No final judgment or interest thereonshall be paid where the employ

ee’s conduct amo

unted tog ross negligence o

r willful, intention

al or malicious con

duct.
The Claim

does not allege a final judgment against the originator or the publisher of the allegedly defama torystatements. Moreover, the Claim states that the accused state employee acted “with reckless di

sregard, inten

tional, reckless

and malicious, with improper motives and malice with intent to cause shock, mental suffering and severe emotional distress, humiliation, anxiety pain and suffering, and depression.”

First Issue

: Finding that all

eged statement

s were not libelous

or injurious.-6- The claim asserts that theclaimant is a priso ner incarcera

ted on “Death

Row.” This is
an admission thatclaimant is the subject of a fina l judgment of conv

iction of murder in

the first degree.

Under

the circumstances of

this case, the appellant is “libel-proof; that is, as a matter of law would suffer no da

mages t o his rep utation by the words alleged to have been spoken. Cardillo v. Doubleday , 2nd Cir. 1975; 518 F.2d 638; Ray v. Time, Inc., ( W.D. Tenn. 1976), 452 F.Supp. 618.

The claim fails

to state an actionable wrong for the reason that it states that the alleged defamation referred to a group of three of which claimant is a member and the claim does not allege that the

claimant himself w

as named in the all

eged defamat

ory stateme

nt.

The gravamen

of an action for defamation is injury to the reputation of the plaintiff - not injury to his self esteem, emotions or mental state.

Character is: The predisposition or h

abit, or aggr

egate of ethic

al quali tie s which belong to and distinguish an individual person; the general resu

lt of the one’s disti

nguishing attri

butes.

- - - - That moral predisp

ositio n or habit or aggregate of ethical qualities, which is believed attached to

a p erson on the strength of the c

ommon opinion and re

port concerning

him.

- - - - A lthough “character” is often used in the sense of “reputation”, the terms are distinguishable.

- - - - “Character” is what a man is, and reputation is what

he is supposed to be. “Character” depends on attributes possessed, andreputation on attributes whi ch ot hers believe one to possess. Black’s Law Dictionary, Fourth Edition, p. 294.-7- The words, character and reputation have been used int erc hangeably because where character is relevant, it is proved by a “character witness” whose testimony must be confined to reputation. Thus,

“character”

must be proven by

reputation and no

t by acts.

In Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., et al , the appeal was from the dismissal of the suit of an employee of Bluff City ag ainst his employer for slander by accusi ng him of falsify

ing records. Th

e Supreme Court dis

missed the slander

action as tim

e barred and said: The basis of a n action for defamation, whether it be

for slander

or libel, is the defamation resulted in an inju ry to the person’s character and reputation.
Cle arl y, the words “charac te r and reputation” were intended to

mean “reputatio

n in respect to character, for character may be shown only by reputation.

In Little Stores v. Isenberg , the plaintiff obtained a jury verdict for damages fr

om a false allegation of shoplifting. This Court affirmed and said:

Th e “character”

of an accused me

ans his fix e d disposition or tendency, a s shown by his habits, through the manifestation of which his gene ral r ep utation, good or otherwise, is obtained. Keith v. State , 127 Tenn. 40, 152 S.W. 1029 (1913).
The claim shows on its face that the claimant is a convicted murderer worthy of death. Therefore, neither

his reputa tion nor hi s character co uld be impa ired by the langu age allegedly spoken and published.

This Court concludes th

at the State is not lia

ble to a convicted murderer, for his character is judicially declared to be evil, and, as a result, his reputation is that of a murderer.

For t he fo rego ing r easo ns, the cla im f ail s to sta te gr oun ds f or r ecov ery.-8-

Second Issue : Hu mil iat ion , em oti ona l di str ess , in vas ion of p riv acy.

These elements of dama

ge may ap ply if a valid right of action for defamation is shown. However, the claim does not allege an actionable case of d efamation without which there can be n o rec ove ry fo r hu mil iat ion , em oti ona l di str ess or i nva sio n of pri vacy.
No merit is found in appellant’s second issue.

This opinion is not authority for the principle that prison inmates may not resort to the Courts to redress libels committed against them in or out of prison. See Cardillo , above.

The judgment of the TrialCourt is affirmed. Costs of this appeal are assessed against the appellant. The c

ause is remanded

to the Trial Court f

or necessary

further procee

dings.

AFFIRMED AND REMANDED.

_________________________________ HENRY F. TODD PRESIDING JUDG E, MID DLE SECT IO N

CONCUR

____________________________: BEN H. CANTRELL, JUDGE
CONCUR IN RESUL

TS:

____________________________ WILLIA M C. KOCH, JR., JUDGE