Chancellor says open records case is new legal territory.
The parents of the Nashville Covenant School shooter Audrey Hale, through their legal counsel, told a Nashville judge on Thursday, June 8, they are in the process of assigning all ownership of their daughter’s writings to the children of The Covenant School.
The documents are still in the hands of the Metropolitan Nashville Police Department (MNPD) after they were seized from the home of Ronald and Norma Hale and the vehicle of their daughter at the scene of her assault on the school, which left six dead, including three children, not including Hale who was herself killed by police.
“The papers that are at issue in this court, by the law of intestate succession, are theirs,” the Hales’ attorney, David Raybin, said. “There is no will that I am aware of. This morning, we are in the process of assigning all rights to the written documents to the children of the school, the intervenors.”
Raybin spoke to the court in Thursday’s hearing, which was originally scheduled for parties to discuss the merits of a public records lawsuit against MNPD. The lawsuits were filed by various parties and later merged into a singular case, all of which are seeking the public release of the shooter’s writings seized by authorities.
The court instead heard arguments requesting the court to pause proceedings from those suing MNPD, as they filed an appeal to Chancellor I’Ashea Myles’ May ruling, which allowed the parents of Covenant students, as well as the school and Covenant Presbyterian Church, to enter the lawsuit as third-party intervenors.
Myles is expected to issue an order soon on whether or not to pause proceedings to allow the appeal to be heard in the higher court regarding the inclusion of the parents, the church and the school in the case. Parties suing MNPD have requested the appeals court to take up the issue on an expedited basis, but a ruling by that court has yet to be made either way.
Hale Family’s Surprise Move
Ed Yarbrough, attorney for the parents of the children of The Covenant School, introduced Raybin, saying the court may “want to hear” information they “came into” and asked for him to be allowed to make his announcement, which was granted by Myles.
The shooter’s parents have not spoken publicly following the shooting, aside from a very brief comment from Norma Hale, reportedly obtained in a phone call with ABC News on the day of the shooting.
Aside from those few comments, the Hale family has remained silent and has made no previous interventions or filings in this public records lawsuit until this week.
Raybin, the parents’ attorney, said he would file with the court the information regarding the transfer of ownership of the writings to the Covenant families and then request to withdraw from the suit. Prior to his comments Thursday, no public filings had been made outlining the actions being taken by his clients.
“The ownership of [the documents], we will assign to the children of The Covenant School,” he said. “The papers at issue were taken from my clients’ home, they are the owners of this home. The papers were taken from a vehicle, my clients are the owners of this vehicle … and they are the owners of the papers. Therefore, they can assign under the law, intestate succession, to whomever they wish, these papers.”
He added the Hales would not make any “money out of this” but would simply assign the documents “for a nominal sum or as a gift” in paperwork over the next week.
He did not state in his comments in court whether or not the Hales believe their daughter’s writings should be released by MNPD but noted that it was an issue the court must decide.
“I wanted to advise the court that the papers at issue are my client’s, and they are assigning them to the children—the intervenors who are here … and no one else,” he said. “Those papers are in the constructive possession of the police, but whether they should be released or not is something [this court] will decide.”
He added it was important for the court to be aware of the actions made by the parents, as the third-party intervenors in the case may now be “differently postured because they now have ownership in the papers at discussion.”
The comments by Raybin came as a surprise to at least some of the attorneys of those suing for the release of the records, as Myles called for Douglas Pierce, attorney for the National Police Association, to request a sidebar if needed as he was out of his seat discussing the matter audibly with another attorney as an attorney for Covenant parents spoke.
New Legal Questions Arise
Myles, on many occasions Thursday, indicated the legal matters at question in this case are unlike any other case in Tennessee history, thus, precedent has not been set.
She added on various other occasions that no matter her decision, she was confident one of the many parties would appeal her decision, leaving the Court of Appeals and possibly the Tennessee Supreme Court with settling questions not answered currently through precedent.
Pierce said the appeal was filed now instead of at the end of the case due to a new Tennessee rule (pdf) of procedure regarding intervention set forth in 2018. The rule states that when a court makes a decision on intervention, that determination is final, with Pierce arguing the law should be construed as appeals being required now rather than later in the case or risk making the entire case moot.
“Our point is, if this proceeding goes forward, it would essentially render our appeal null,” he said.
Myles said the rule change was “very new,” and thus, “very little jurisprudence in how it should work in application” currently exists.
Normally, attorneys and Myles debated, appeals would all be held until the end of the case. However, the rule states orders on intervention are final, and the question remains as to whether it should be appealed upon being made or upon a final determination made in the case at large.
Myles argued the rule change, made in 2018, was really made to protect those who were denied intervention in a case, not necessarily for an original party to object to intervention being granted. She stated she had “trouble understanding” why those opposed to intervention by Covenant parties “have problems” with their arguments being heard.
Pierce argued the stay is necessary because if intervention is allowed now in a public records case where a party may or may not have standing, then “anyone who wants to shut down” public records act proceedings may now have precedent to do so.
Appeal Could Delay Process
Myles said those seeking the documents were essentially stepping in front of themselves, as public records challenges are by Tennessee law to be heard on an expedited basis.
She added with an appeal very likely, it would make sense for the whole case to go up on appeal to a higher court as a whole.
“If we have a show cause hearing, you will have an opinion from me in short order…” she said. “Then the whole case can go up on appeal, with a complete record, to the Court of Appeals and perhaps even to the [Tennessee] Supreme Court. Right now, the case is bifurcated, where we’re asking the Court of Appeals frankly to look at a singular issue while we haven’t gotten to the main issue of this case.”
She also questioned the presumption by the appealing parties that if the Court of Appeals later determined the Covenant intervenors should not have been allowed to intervene, that her court could not follow the higher court’s rule to make a decision without the argument of the Covenant parties considered.
Pierce said it was a complicated scenario for the court to be in, and it was hard to tell what the future held for the case.
“You would agree, frankly, that there has been no case law really construing the unique facts of this case,” Myles said. “Because this is really an intersection between an open records request, which is something that is meant to come outside the regular rules of procedure in court, to be heard on an expedited basis. The statute itself says immediately… and dealing with a new rule that there really isn’t any guidance from the Court of Appeals or the Supreme Court on…”
Myles stated the appeal, which has not yet been approved by the Court of Appeals to be heard on an expedited basis, could go on for “months,” in direct contrast to the law stating public records cases should be heard quickly.
Any potential delays by filing the appeal, Myles questioned, could essentially mean the appellants are waiving their right to an expedited process.
Pierce said their hope is the higher court would agree to an expedited time frame, but they were not waiving the right to a speedy decision in the lower court by appealing the singular issue of intervention.
He said if the request for an expedited appeal was denied, he was uncertain if the parties would drop their appeal altogether, but it would have to be taken into consideration if necessary.
Uncharted Territory
Pierce noted the appeal was not the only reason the show cause hearing was pushed, as an attorney representing one of the parties suing MNPD withdrew from the case due to a conflict and new counsel needed time to catch up.
“This case is getting in its own way to go and get some finality,” Myles said. “Either way, it’s going up to the Court of Appeals and probably the [Tennessee] Supreme Court.”
An attorney for the Metropolitan Government of Nashville and Davidson County, representing MNPD, said they agreed a legal precedent had not been set but also noted a hearing on the merits should “happen quickly.”
“Because this is, frankly, an area of the law that is not clear,” Myles explained. “I go back to, either side, most likely, is going to go up to the Court of Appeals, to say is this how we should apply this rule. I think that’s probably a good thing. You all are asking me to make a decision in uncharted territory with [other cases as precedent], and none of them actually get to the real issue.”
