Shell v. State ( 1995 )

OPINION

DROWOTA, Justice.

Paul Shell, Betty Stimpson and Jeff Stimp-son appeal from the Court of Appeals’ affir-mance of the dismissal by the Tennessee Claims Commission of them action against the State of Tennessee for negligent deprivation of a constitutional right. The appellants’ lawsuit is based on alleged prosecutorial misconduct in the investigation of reports of child sexual abuse in a day care center; this investigation ultimately led to the indictment and prosecution of the appellants for multiple sexual offenses. This appeal presents two issues for our review: (1) whether the appellants’ action, which was filed in October 1989, was viable at that time in light of the legislature’s repeal in May 1989 of the language in Tenn.Code Ann. § 9-8-307(a)(l)(N) authorizing suits against the State for the negligent deprivation of constitutional rights; and (2) assuming that a cause of action for the negligent deprivation of constitutional rights did exist at the time this action was filed, whether the statutory period of limitations on the action had expired when the appellants filed their action in October 1989.

FACTS AND PROCEDURAL HISTORY

During the early 1980’s, these appellants were involved in various capacities with the Georgian Hills Early Childhood Center, a day care facility operated by the Georgian Hills Baptist Church. Paul Shell was the minister of the church; Betty Stimpson was the director of the day care center; and Jeff Stimpson, Betty’s son, was employed by the day care center on a part-time basis. In early 1984, reports of child sexual abuse by certain Georgian Hills employees began to surface. The Shelby County District Attorney’s office, under the guidance of Assistant District Attorney Phyllis Gardner, launched an extensive investigation concerning these reports. This investigation, which was carried out by a “task force” consisting of employees of the city, county, and state governments, led to the arrest of a Georgian Hills employee, Frances Ballard, in June 1984. Ballard was later indicted on multiple counts of aggravated rape and aggravated sexual battery involving 19 different children. See State v. Ballard, 855 S.W.2d 557, 559 (Tenn.1993). The day care center ceased its operations in September 1984.

In December 1984, the Shelby County Grand Jury issued subpoenas to Shell and Betty Stimpson, directing them to turn over the names and addresses of all the children who had attended Georgian Hills for the relevant time period. Shell and Stimpson complied with the subpoenas. In their complaints, Shell and Betty Stimpson state that they were not warned by the district attorney that they were suspects in the investigation at that time.

After being apprised of the results of the district attorney’s investigation, the grand jury charged Shell, Betty Stimpson, and Jeff Stimpson in May 1985 with several sexual abuse offenses. The ensuing criminal prosecutions of Shell and the Stimpsons continued for a period of over three years. During this period, Betty and Jeff Stimpson were tried on various counts in their indictments; their trials, however, failed to produce any convictions. After Jeff Stimpson was acquitted on four counts of aggravated rape in October 1988, the district attorney dismissed all the remaining charges against the appellants on October 28, 1988.

On October 17, 1989, Betty and Jeff Stimp-son filed a complaint with the division of claims administration pursuant to Tenn.Code Ann. § 9-8-307(a)(l)(D) and (N), alleging that Gardner had committed professional malpractice and had deprived them of their constitutional rights to due process of law because of her negligence in handling the investigation and prosecution of their cases. Specifically, the Stimpsons alleged that Gardner had committed prosecutorial misconduct by: (1) disseminating the names of alleged victims to private attorneys, thereby causing the Stimpsons and the day care center to be bombarded with civil lawsuits; (2) using improper interviewing techniques to pressure children into reporting that they had been molested; (3) withholding exculpatory evidence from the grand jury; and (4) ordering the members of the task force to destroy tapes of the initial interviews of the children so that the tapes would be unavailable for inspection by the defense counsel. Shell filed a substantially similar complaint on October 27, 1989. Because the division of claims administration was unable to act upon the complaints within ninety days, the claims were transferred to the Claims Commission for resolution pursuant to Tenn.Code Ann. § 9-8-402(c).

The Claims Commission dismissed the complaint,¹ holding that both causes of action had accrued prior to October 17, 1988, and were therefore barred by the one-year statute of limitations for personal injury actions. Tenn.Code Ann. § 28-3-104. The Court of Appeals affirmed the ruling of the commissioner. We granted the appellants’ Rule 11 application for the limited purpose of deciding the two questions enunciated in the beginning of this opinion.²

/.

Before we address the statute of limitations question, we must first determine whether a cause of action existed for the negligent deprivation of a constitutional right on October 17, 1989 — the date of the Stimp-son complaint. Although this issue was not raised below, it is properly reviewable by this Court because its answer determines whether the Claims Commission had subject matter jurisdiction over these claims in the first instance. Tenn.R.App.P. 13(b).

In May 1984, the General Assembly enacted legislation which waived the State’s sovereign immunity under certain conditions. Acts of 1984, ch. 972, 1984 Tenn.Pub.Acts 1026 (now codified at Tenn.Code Ann. § 9-8-307). In this act, the legislature created the Tennessee Claims Commission to hear certain claims against the State; one of the claims the commission was designated to entertain was for the “negligent deprivation of statutory or constitutional rights.” Acts of 1984, ch. 972, § 8(a)(14), 1984 Tenn.Pub. Acts 1026,1030. This section was eventually codified at Tenn.Code Ann. § 9-8-307(a)(l)(N). In May 1989, as part of an act modifying several provisions of § 9-8-307, the General Assembly deleted the words “or constitutional” from § 9-8-307(a)(l)(N). Acts of 1989, ch. 491, § 1, 1989 Tenn.Pub.Acts 853, 854.

The State argues that the 1989 amendment should be applied retroactively so as to bar the appellants’ lawsuit. The State argues that the cause of action for the negligent deprivation of constitutional rights was created by the legislature in response to the United States Supreme Court’s decision in Parrott v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), in which the Court held that the negligent deprivation of an individual’s constitutional rights could, in an appropriate case, give rise to a claim under 42 U.S.C. § 1983. The State asserts that, because the legislature was attempting to encourage plaintiffs to file claims in the Claims Commission in lieu of bringing § 1983 actions against state employees, it created the cause of action.

However, in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) the Supreme Court overruled Parratt and held that mere negligence of the part of state officials does not implicate the due process clause, and therefore does not state a cause of action under § 1983. The State asserts that because of Daniels, the legislature deleted the words “or constitutional” from § 9-8-307(a)(l)(N) in May 1989.

The legislative history of the 1989 amendment supports the State’s explanation. One of the sponsors of the bill, Senator Riley Darnell, explained in the Senate floor debates that:

T.C.A. 9-8-307(a)(l)(N) gives the Claims Commission jurisdiction over claims based on negligent deprivation of statutory or constitutional rights. This was done in part to encourage people to use the Claims Commission to file their lawsuits rather than going to federal court. Since we had done that, the United States Supreme Court has indicated that actions brought under 42 U.S.C. 1983 cannot be based on negligent conduct. Therefore, we’re deleting the word “constitutional” from the bill so that negligent conduct is not one of those that would be brought in lieu of a 1983 civil rights action.

The State concludes that because § 9-8-307(a)(l)(N) was intended to mirror the requirements of a § 1983 action, and because the Supreme Court held that negligence cannot be the basis of a § 1983 action, the 1989 amendment should be retroactively applied to January 21, 1986 — the date the Daniels decision was handed down.

This argument must fail for a number of reasons. First, a basic rule of statutory construction provides that statutes are to be applied prospectively, unless the legislature clearly indicates to the contrary. Woods v. TRW, Inc., 557 S.W.2d 274, 275 (Tenn.1977); United Inter-Mountain Tel. Co. v. Moyers, 221 Tenn. 246, 426 S.W.2d 177, 181 (1968); Menefee Crushed Stone Co. v. Taylor, 760 S.W.2d 223, 226 (Tenn.App.1988). Section 7 of ch. 491 states that “[t]his act shall take effect upon becoming a law, the public welfare requiring it.” The act was passed by both houses on May 24, 1989; it was signed by Governor McWherter on June 1, 1989. It therefore became effective on that date, and there is nothing in the text of the act or in its legislative history to indicate that the legislature intended that it should be applied retroactively.

Moreover, although the legislative history does illustrate that one of the General Assembly’s purposes in enacting § 9-8-307(a)(1)(N) was to provide plaintiffs with an alternative to § 1983, the statute did not by its express terms limit the action to the deprivation of federal constitutional rights, which is the exclusive concern of a § 1983 action. There is no indication in the legislative history of the bill that the provision was not intended to apply equally to the negligent deprivation of state constitutional rights. Therefore, the fact that § 9-8~307(a)(l)(N) was sensitive to changes in § 1983 jurisprudence does not mean that it ceased to have any legal effect after the Daniels decision was rendered.

The State alternatively asserts that the 1989 amendment is a remedial statute because it simply divested the Claims Commission of jurisdiction over this cause of action and placed it within the jurisdiction of the Board of Claims. The State contends that because remedial statutes may be applied to causes of actions that have accrued before the passage of the legislation, the appellants were barred from bringing them action in the Claims Commission.

It is true that statutes affecting only the method or the procedure for prosecuting or defending a cause of action may be applied retroactively. Saylors v. Riggshee, 544 S.W.2d 609, 610 (Tenn.1976); Burton v. Borden Foods Co., 494 S.W.2d 775, 777 (Tenn.1972); Morford v. Yong Kyun Cho, 732 S.W.2d 617, 620 (Tenn.App.1987). A remedial or procedural statute is one that does not affect the vested rights or liabilities of the parties. Examples of remedial legislation are statutes concerning the venue of an action, Burton, Morford; or statutes dealing with service of process, Saylors. Statutes that create a new right of recovery or change the amount of damages recoverable are, however, deemed to have altered the parties’ vested rights and thus are not considered remedial. Anderson v. Memphis Housing Authority, 534 S.W.2d 125, 127-28 (Tenn.App.1975); School Commissioners v. State, 26 Tenn. 113 (1846).

The effect of the 1989 amendment cannot be fairly characterized as “remedial.” Although the Board of Claims does have residual jurisdiction over claims falling outside the jurisdiction of the Claims Commission, TenmCode Ann. § 9-8-108(a)(l), the Board of Claims is not required to hear any claim that is presented to it; its authority to hear claims is purely discretionary. § 9-8-108(a)(1). There is no statutory authority to appeal from the Board’s decision not to hear a claim. Moreover, a decision on the merits of the claim rendered by the Board of Claims is not appealable, § 9 — 8—108(a)(1), whereas a final decision rendered by the Claims Commission is appealable to the Court of Appeals. Tenn.Code Ann. § 9-8-403(a)(l). Therefore, it is clear that once the Claims Commission is divested of jurisdiction over a particular claim, the plaintiff no longer possesses an unqualified right to have a state administrative tribunal determine the merits of the claim.

This is crucial because of the constitutional and statutory limitations on a plaintiffs ability to bring an action against the State. The State of Tennessee is immune from suit for money damages in federal court by virtue of the Eleventh Amendment to the United States Constitution. Chadhuri v. Tennessee, 767 F.Supp. 860, 862-63 (M.D.Tenn.1991). Moreover, the State is immune from suit in a state court unless the legislature specifically provides to the contrary. Tenn. Const. Art. I, § 17; Tenn.Code Ann. § 20-13-102; Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 779 (1965); Greenhill v. Carpenter, 718 S.W.2d 268, 270 (Tenn.App.1986). Because of these restrictions, and the statutory provisions concerning the Board of Claims, the legislature’s removal of this cause of action from the jurisdiction of the Claims Commission is functionally equivalent to a complete repeal of the cause of action. Therefore, the 1989 amendment cannot be considered remedial or procedural. And it cannot serve to bar the appellants’ cause of action, which had accrued before June 1, 1989 — the effective date of the amendment.

II.

Having decided that a cause of action for the negligent deprivation of a constitutional right did exist in the Claims Commission as of October 17, 1989, we must now decide when the cause of action accrued for statute of limitations purposes. The appellants argue that we should adopt a rule similar to that used in malicious prosecution actions and hold that the action does not accrue until the plaintiff is vindicated by the judicial process³ — in this case, on October 28, 1988, the date the indictments were dismissed. The appellants argue that requiring a criminal defendant to bring the action before vindication is illogical and wasteful of judicial resources because if the defendant is convicted, he could claim no damages for any prose-cutorial misconduct. The appellants also point out that in order to avoid “inconsistent judgments” (presumably a judgment for the plaintiff in the civil action and a judgment of conviction in the criminal prosecution), the trial court in the civil action would invariably stay the proceedings pending the outcome of the criminal prosecution. Therefore, the appellants argue, a rule requiring the plaintiff to file before the criminal proceedings terminate in his favor is a practical nullity that will needlessly burden scarce judicial resources.

The State replies that this action, although based on the deprivation of constitutional rights, is nevertheless a negligence action and should be analyzed accordingly. It argues that established principles of negligence law require the action to be brought within a year of the defendant’s breach of a legal duty owed to the plaintiff. It concludes that this cause of action accrued when the indictment was handed down because the prosecutor allegedly breached the appellants’ due process rights during the pre-indictment investigation of the case.

We find the State’s contentions generally persuasive.⁴ Although the appellants’ policy arguments are somewhat attractive from a practical standpoint, they are ultimately based on a faulty premise: that this action can or should be analogized to malicious prosecution actions. The legislature definitely did not intend to subject the State to such claims: the Claims Commission does not have jurisdiction over malicious prosecution claims; in fact, it does not have jurisdiction over any intentional torts. Tenn. Code Ann. § 9-8-307(a). Moreover, although state officers and employees are liable in their individual capacities for malicious acts, Tenn.Code Ann. § 9-8-307(h), it is settled that prosecutors are immune from actions for malicious prosecution under both § 1983, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and state common law, Willett v. Ford, 603 S.W.2d 143 (Tenn.App.1979). Because of the unequivocal legislative and judicial pronouncements regarding the availability of an action for malicious prosecution against prosecutors, it would be improper to selectively incorporate certain elements of that cause of action into this negligence action.⁵ We therefore hold that the issue of when this cause of action accrued is to be determined by reference to generally applicable principles of negligence law.

This determination effectively decides the question, for although we have never directly addressed the issue of when an action for the negligent deprivation of a constitutional right accrues, the basic principles governing that issue are clear. For example, in Windsor v. A Federal Executive Agency, 614 F.Supp. 1255 (M.D.Tenn.1983), affd without opinion, 767 F.2d 923 (6th Cir.1985), the plaintiff brought an action against the United States Department of Justice and its agents for, inter alia, the deprivation of his Fifth Amendment Due Process rights. The plaintiffs specific allegation was that the named agents had wrongfully disseminated false information to the Tennessee Board of Professional Responsibility, thereby causing disciplinary proceedings to be brought against him.

The District Court for the Middle District of Tennessee held that the plaintiffs constitutional claims were barred by Tennessee’s one-year statute of limitations for personal injury actions. The Court reasoned as follows:

The plaintiff alleges that the defendants committed their wrongful acts in November 1981; however, this action was not commenced until June 28, 1983, well more than 1 year after the defendants are alleged to have disseminated wrongfully the Thoresen-affidavit. In an obvious effort to avoid the bar of the statute of limitations, Mr. Windsor alleges (in his complaint) that

⅜ * ⅞ oppressive result of Defendants’ conduct remained in effect upon the plaintiff until November of 1982, when the alleged charge was dismissed by the Board. Plaintiff brought this action within one year therefrom * * *

He, thus, appears to contend his action was timely because (1) his cause of action accrued — not in November, 1981, when the defendants acted — but in November 1982, when the effect of their conduct ceased to have an effect upon the plaintiff; or (2) the running of the statute of limitations was tolled, or suspended, during the period that the conduct of the defendants remained in effect upon him.

The Court finds no support whatever for the proposition that Mr. Windsor’s cause of action did not accrue until November, 1982, a year after the defendants are alleged to have disseminated wrongfully the false information. The plaintiff cited no authority supporting such a notion, and the Court’s independent research disclosed none.

Under the law of Tennessee, a cause of action accrues when the plaintiff suffers in actuality a legally-cognizable wrong and thus acquires a right to bring suit for redress. Hodge v. Service Machine Co., 438 F.2d 347, 349 (6th Cir.1971); Vason v. Nickey, 438 F.2d 242, 246 (6th Cir.1971); Armistead v. Clarksville-Montgomery County Sch. Sys., 222 Tenn. 486, 437 S.W.2d 527, 528-29 (1969). Where, as here, it is alleged that the defendants disseminated wrongfully untruthful information about the plaintiff, the cause of action accrues, and the statute of limitations begins to run, at the time such dissemination takes place. Riley v. Dun & Bradstreet, 172 F.2d 303, 308 (6th Cir.1949); Heller v. Smither, 437 F.Supp. 1, 4-5 (D.C.Tenn.1977), aff'd, 578 F.2d 1380 (6th Cir.1978); Applewhite v. Memphis State University, 495 S.W.2d 190, 195 (Tenn.1973).

The Supreme Court has held (in an action brought under 42 U.S.C. § 1983, supra), that the applicable state statute of limitations begins to run at the time of the alleged wrongful conduct, not at the point when the consequences of the conduct became painful. Chardon v. Fernandez, 454 U.S. 6, 7, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981). That being so, it can hardly be said that the statute of limitations does not begin to run until the result of the wrongful conduct ceases to have an effect on the plaintiff.

614 F.Supp. at 1262-63.

With the applicable principles in mind, the first step in our analysis is to determine what conduct, if any, of the defendant in this case could have given rise to a legally cognizable injury. The United States Supreme Court, in Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), and Buckley v. Fitzsimmons, 509 U.S. -, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) has provided the answer; a prosecutor is potentially liable (in other words, possesses only qualified, rather than absolute, immunity) for actions taken in an investigative or administrative capacity, but not in his capacity as an advocate for the State.⁶ Applying the Bums/Buckley rule to this situation, the appellants have stated several legally cognizable injuries. Among these include the prosecutor’s dissemination of the names of the alleged victims to private attorneys, the improper interviewing techniques during the initial investigation, and the destruction of the tapes of the initial investigation.

It is, however, abundantly clear that all of these injuries occurred well before October 17, 1988 — one year before the Stimpson’s complaint was filed. Moreover, the appellants do not argue that they were unaware of these illegal actions. Indeed, there is ample evidence in the record that the appellants knew of the prosecutor’s wrongdoing. In November 1985, the appellants filed a motion to exclude the prosecutor from participation in the case because of her mishandling of the investigation. Moreover, the affidavit of two attorneys representing the appellants states that they learned in late 1986, during the course of discovery in the related civil cases, that the prosecutor had instructed members of the task force to record over the tapes of the initial interviews. This statement is supported by the fact that the appellants filed motions in the trial court in late 1986 and early 1987 requesting the court to order the State to turn over all exculpatory evidence. Thus, there is no question that the appellants knew of the injuries well before October 17, 1988.

Although we hold that this lawsuit is barred by the statute of limitations, we do not hold that any possible cause of action for prosecutorial misconduct — such as a § 1983 action — invariably accrues upon the return of an indictment. While it is more likely that a prosecutor will be acting as an advocate rather than an investigator after the defendant is formally indicted, it is theoretically possible that the prosecutor could still perform acts of an investigative nature after the indictment. See Buckley v. Fitzsimmons, 509 U.S. -, - n. 5, 113 S.Ct. 2606, 2616 n. 5, 125 L.Ed.2d 209 (1993). In such a case, the plaintiff would not have suffered a legally cognizable injury until after the indictment was returned. Therefore, we hold that the accrual of the cause of action depends on when the plaintiff has suffered a legally cognizable injury.⁷

The judgment of the Court of Appeals is affirmed.

ANDERSON, C.J., BIRCH, J., and O’BRIEN, Special Justice, concur. REID, J., dissents. See separate opinion.

1 . Because the parties' claims were so similar, the Claims Commission consolidated the complaints.

2 . We express no opinion as to the validity of the appellants’ cause of action based on professional negligence.

3 . One of the elements of a malicious prosecution action is that the underlying action has terminated in favor of the plaintiff. See, e.g., Donaldson v. Donaldson, 557 S.W.2d 60, 62 (Tenn.1977); Kauffman v. A.H. Robins Co., 223 Tenn. 515, 448 S.W.2d 400, 402 (1969); Dunn v. Tennessee, 697 F.2d 121, 125 n. 4 (6th Cir.1982).

4 . We are not persuaded that any action for pros-ecutorial misconduct, such as a § 1983 action, inevitably accrues when the indictment is handed down. See p. 423, infra.

5 . The dissent engages in this selective incorporation by first citing several federal cases which analogize a § 1983 action to a state malicious prosecution action, and then concluding that: "[t]he cause of action alleged in the case before the Court is similar to those actions brought under Section 1983 in which the federal courts have found the cause of action does not accrue until the claimant has been absolved of any criminal liability." Dissent, at 428 (emphasis added). The dissent's analysis, however, ignores the fact that the action before us is not based on § 1983. Moreover, the section relied upon by the appellants, § 9-8-307(a)(l)(N), explicitly provides an action against the State for negligence; it makes no mention whatsoever of malicious prosecution. Finally, as discussed above, it is well-settled that a plaintiff may not bring a malicious prosecution against either the State or against a prosecutor individually. Therefore, the dissent’s reliance upon the malicious prosecution analogy, however well-grounded in policy, is simply unwarranted in light of the statutory and judicial pronouncements militating against such an analogy.

6 . Sums and Buckley are § 1983 actions. They are relevant to this action because § 1983 incorporates the common-law immunities historically granted to governmental officers; and Tenn. Code Ann. § 9-8-307(g) provides that “no language contained in this chapter is intended to be construed to abridge the common-law immunities of state officials and employees." See also Willett v. Ford, 603 S.W.2d 143 (Tenn.App.1979) (immunities recognized in § 1983 applicable to common law actions against prosecutors).

7 . While the cause of action for negligent deprivation of constitutional rights no longer exists, this holding is nevertheless important because the statutory period of limitations for § 1983 actions is controlled by state law. Tenn.Code Ann. § 28-3-104; Harrison v. Wright, 457 F.2d 793 (6th Cir.1972).