On Wednesday, in the Middle District of Tennessee, Judge Aleta A. Trauger ruled that ex-Congressman Jeremy Durham of the Tennessee House of Representatives possessed a “statutorily created entitlement to life-time health insurance for retired civil servants,” but that said entitlement was validly removed, following Durham’s expulsion from Tennesee House, as Durham argued for procedural due process requirements for the wrong purported property interest.
The associated opinion explained that Durham was voted out of the state legislature following the release of an Attorney General’s report concluding that “Durham had engaged in sexually inappropriate conduct with at least 22 women between 2012 and 2016.” Durham, who had already served a full congressional term from 2012-14, was expelled four months prior to the completion of his second term following a House vote.
Thirteen days after the expulsion, the Commissioner of Finance and Administration (COFA) notified Durham that his healthcare provided ended four days later. The plaintiff then sued the Tennesee House, arguing that the completion of one congressional term required the government to continue to provide Durham health insurance, or at minimum to not remove the health insurance without appropriate due process.
Durham pointed to an article from The Tennessean that quoted the Director of Legislative Administration for the Tennessee House, as saying: “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.” As such, the plaintiff proffered, the Fourteenth Amendment’s protection of due process procedures before removal of a valid entitlement —in this case, health insurance for life for all congressmen completing just one full term— required Durham to receive notice and a right to be heard from THOR before THOR’s rescission of Durham’s insurance passed constitutional muster.
The defendant did not challenge the fact that there exists a “statutorily created entitlement to life-time health insurance for retired civil servants…” to which the procedural due process protections of the Fourteenth Amendment apply. The House proffered that Durham failed to have a valid property interest in the entitlement, given Durham was expelled, in lieu of retiring, from the body. The defendant asserted that the Tennessee law covering health insurance for the House explicitly states that “upon retirement from the general assembly,” an ex-congressperson qualifies for lifetime health insurance, regardless of how many full terms one has completed prior to retirement.
The court disagreed, explaining that the health insurance entitlement is tied directly into the question of whether Durham’s expulsion from the Tennessee House was valid. Having and losing an entitlement, the court held, is exactly the type of deprivation of a property interest that due process protects. If the defendants had, for example, “accorded Durham adequate notice and a contested hearing before ousting him from the legislature, that type of procedure…would likely also have provided all the process to which Durham would have been entitled in association with the termination of his health insurance benefits as well…. 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 (health insurance) status, was illegal. He also could have argued to these different decision-makers that the interpretation of state law by (the defendant) is wrong.”
The court, nonetheless, denied the plaintiff a motion for summary judgment. The opinion explained that while it was unclear what due process the Fourteenth Amendment required in the present case, the question need not be answered today as Durham requested a remedy the court could not provide. Judge Trauger explained that it was undisputed that the plaintiff only prayed for the court to issue an injunction to return the plaintiff to his elected office and not restore his health insurance. However, “this court…is bound by precedent to conclude that…he did not have a property interest in his elected office protected by the Fourteenth Amendment…. 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…it fails on the merits.”