Can Tennessee require people challenging an equine slaughter license to post a bond worth 20% of the facility's cost just to file suit?

Subject

Opinion No. 12-44, Tennessee Constitution's Open Courts Clause, April 3, 2012

Plain-English summary

In 2012, the Tennessee General Assembly was considering HB 3619 / SB 3461, a bill to encourage equine slaughter and processing facilities to locate in Tennessee. As part of that bill, anyone wanting to challenge a license or permit issued to such a facility in court had to post a surety bond equal to 20% of the cost of building the facility (or the operational cost of an existing facility), or have their case dismissed. The bill exempted indigent litigants. Representative Johnny Shaw asked whether this bond requirement violated the Open Courts Clause of the Tennessee Constitution, or alternatively the Equal Protection Clause.

The AG concluded the bond requirement was "constitutionally suspect" under the Open Courts Clause. The equal protection question was pretermitted because the open courts answer disposed of the bill.

Tennessee's Open Courts Clause, Tenn. Const. art. I, § 17, says: "That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." The AG walked through a body of Tennessee precedent and persuasive out-of-state case law to conclude that financial barriers to court access, including pre-trial bond requirements unrelated to court costs, are constitutionally suspect.

A 20% bond on a multi-million dollar facility could easily run into hundreds of thousands of dollars. Even with the indigency exception, the bond would chill non-indigent litigants with legitimate claims. The bond's size and the dismissal-on-non-payment rule suggested its purpose was to discourage challenges, not to defray actual court costs. The AG found that fact pattern hard to defend.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

The proposed bill

HB 3619 / SB 3461 was structured to encourage equine slaughter facilities in Tennessee. The challenge provision in HB 3619, Amend. 1, § 1, said:

(a)(1) If an action is filed in circuit or chancery court to challenge the issuance of a license or permit for an equine slaughter or processing facility, the court shall require a surety bond of the person filing the action. The bond shall be set at an amount representing twenty percent (20%) of the estimated cost of building the facility or the operational costs of an existing facility.

(2) The bonding requirements of this subsection shall not apply to an indigent person.

(b) If the bond required under subsection (a) is not paid within thirty (30) days of the filing of the action, the action shall be dismissed.

The structure was clear: pay a substantial bond up front or your case is dismissed. The "indigent person" carve-out was limited.

Tennessee's Open Courts Clause

Article I, Section 17 reads: "That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."

The clause was "designed 'to ensure that all persons would have access to justice through the courts.'" William C. Koch, Jr., Reopening Tennessee's Open Courts Clause: A Historical Consideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333, 341 (1997). About 38 states have a version of the clause.

Federal access-to-courts doctrine

Although the U.S. Constitution does not contain a textual Open Courts Clause, the right of access to courts has been recognized as fundamental, drawing from several constitutional provisions. Swekel v. City of River Rouge, 119 F.3d 1259, 1261-62 (6th Cir. 1997), summarized:

"It is beyond dispute that the right of access to the courts is a fundamental right protected by the Constitution." . . . the right of access to the courts finds support in several provisions of the Constitution including: the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause, the First Amendment, and the Privileges and Immunities Clause of Article IV.

The access right protects both physical access and "adequate, effective and meaningful" use. Bounds v. Smith, 430 U.S. 817, 822 (1977).

Tennessee's own early precedent

The Tennessee Supreme Court had recognized as early as 1827 that excessive security requirements could violate the Open Courts Clause. Jones v. Kearns, 8 Tenn. (Mart. & Yer.) 241, 247 (1827), held that clerks could not require additional security for costs beyond what statute required.

Out-of-state persuasive cases

The AG marshaled a substantial body of out-of-state precedent reaching the same conclusion about financial barriers:

• Fent v. State ex rel. Dept. of Human Servs., 2010 OK 2, ¶ 16 (Okla. 2010): "fees or costs that are not deemed to be for court-related purposes are violative of the open access to the courts guarantee."
• G.B.B. Investments, Inc. v. Hinterkopf, 343 So.2d 899, 901 (Fla. 3d DCA 1977): constitutional right of access sharply restricts financial barriers to asserting claims.
• Psychiatric Associates v. Siegel, 610 So.2d 419, 425 (Fla. 1992): statute requiring bond sufficient to cover costs and attorney fees before suit can be prosecuted violates open courts right.
• In re Estate of Dionne, 518 A.2d 178, 179-80 (N.H. 1986): Open Courts Clause forbids fee to a judge for holding a special session and rendering judicial decision.
• Ali v. Danaher, 265 N.E.2d 103, 106 (Ill. 1970): Open Courts Clause protects against terms that "unreasonably and injuriously interfere with [a litigant's] right to a remedy."
• R. Communications, Inc. v. Sharp, 875 S.W.2d 314, 317-18 (Tex. 1994): a statute precluding injunctive relief unless the challenger paid assessed taxes or posted a bond equal to double the estimated liability was unconstitutional.
• State v. Flag-Redfern Oil Co., 852 S.W.2d 480, 485-86 (Tex. 1993): regulation requiring deficiency payment within 30 days of seeking judicial review violated Texas's Open Courts Clause.
• Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 450 (Tex. 1993): unconstitutional to require supersedeas bond equal to assessed fine as prerequisite to judicial review.

The Texas Open Courts Clause is particularly close in language to Tennessee's, and the Texas Supreme Court had repeatedly struck down financial barriers.

Application to HB 3619

The bill required a bond of 20% of the cost of building the facility, easily hundreds of thousands of dollars for a real facility. Failure to post within 30 days meant dismissal. The bill's only escape valve was indigency.

The AG noted three problems:

1. The bond wasn't tied to court-related costs. It bore no relation to actual filing fees or administrative expense. The Oklahoma rule in Fent required a connection between fees and court services; here there was none.

2. The bond would chill non-indigent litigants with legitimate claims. Even if you weren't poor enough to qualify as "indigent," a $200,000 bond would deter you from filing.

3. The bond's size and the dismissal trigger suggested its purpose was to discourage litigation opposing licensure, not to address any legitimate state interest in collecting fees.

Result: constitutionally suspect under Tennessee's Open Courts Clause.

Equal protection pretermitted

The AG declined to reach the equal protection question. Once the open courts analysis showed the bond was constitutionally suspect, there was no need to separately analyze equal protection. The opinion left that issue for another day.

Common questions

Why is a bond requirement different from a filing fee?

Filing fees are typically modest and tied to actual court costs. Bond requirements can be much larger, often tied to the value of what's at stake rather than the cost of the litigation. The cases cited by the AG drew the line between fees that bear "a connection . . . to the services rendered by the courts" (allowed) and bonds that function as a financial entry barrier (not allowed).

Could the legislature impose a smaller bond?

The opinion does not draw a line dollar amount. But the cases it cites approve modest court-related fees and disapprove substantial unrelated bonds. A bond of a few hundred dollars to defray administrative costs would likely fare differently from a percentage-of-facility-cost bond.

Does this opinion mean any pre-trial bond is unconstitutional?

No. The opinion focused on bonds that (a) are large relative to the litigant's resources, (b) are unrelated to court services or costs, and (c) function as a deterrent to legitimate litigation. Ordinary cost bonds tied to anticipated court costs are different.

What about the indigency carve-out? Doesn't that save the bill?

The AG explicitly addressed this and said it did not save the bill. The carve-out helped truly indigent litigants but did not help middle-income people, small advocacy groups, or non-profits with legitimate concerns. The chilling effect on those non-indigent litigants was the constitutional problem.

Did the AG say the equal protection clause was also violated?

The AG declined to reach that question. The opinion only said the open courts answer disposed of the matter, making equal protection analysis unnecessary.

Are these challenges to slaughter facilities still relevant today?

The political and policy debates around equine slaughter have continued at the state and federal level. The constitutional analysis in this opinion would apply equally to any state bill imposing similar pre-trial bond requirements on any kind of license challenge, not just equine slaughter.

Citations

• Tenn. Const. art. I, § 17 (Open Courts Clause)
• Jones v. Kearns, 8 Tenn. (Mart. & Yer.) 241 (1827)
• Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir. 1997)
• Bounds v. Smith, 430 U.S. 817 (1977)
• Fent v. State ex rel. Dept. of Human Servs., 2010 OK 2, 236 P.3d 61 (2010)
• Psychiatric Associates v. Siegel, 610 So.2d 419 (Fla. 1992)
• G.B.B. Investments, Inc. v. Hinterkopf, 343 So.2d 899 (Fla. 3d DCA 1977)
• In re Estate of Dionne, 518 A.2d 178 (N.H. 1986)
• Ali v. Danaher, 265 N.E.2d 103 (Ill. 1970)
• R. Communications, Inc. v. Sharp, 875 S.W.2d 314 (Tex. 1994)
• State v. Flag-Redfern Oil Co., 852 S.W.2d 480 (Tex. 1993)
• Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993)
• William C. Koch, Jr., Reopening Tennessee's Open Courts Clause, 27 U. Mem. L. Rev. 333 (1997)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-044.pdf

Original opinion text

Tennessee Constitution's Open Courts Clause

QUESTIONS

1. Does House Bill 3619/Senate Bill 3461, 107th General Assembly, 2nd Sess. (2012) (hereinafter "HB3619") violate the Open Courts Clause of the Tennessee Constitution?

2. Does HB3619 violate the Equal Protection Clause of the Tennessee Constitution?

OPINIONS

1. HB3619's requirement that litigants pay a substantial mandatory pre-trial surety bond or have their action dismissed is constitutionally suspect under Tennessee's Open Courts Clause.

2. The answer to this question is pretermitted by the response to Question 1.

ANALYSIS

HB3619 "intends to encourage the location of equine slaughter and processing in facilities in Tennessee that meet all sanitary, safety and humane slaughter requirements established by state or federal law or regulation." HB3619, Amend. 1, §1. The questions posed seek guidance on whether the process for challenging licensure of these facilities set forth in HB3619 is constitutionally suspect.

HB3619 establishes the following requirements for any party seeking to challenge licensure in a court proceeding:

(a) (1) If an action is filed in circuit or chancery court to challenge the issuance of a license or permit for an equine slaughter or processing facility, the court shall require a surety bond of the person filing the action. The bond shall be set at an amount representing twenty percent (20%) of the estimated cost of building the facility or the operational costs of an existing facility.

(2) The bonding requirements of this subsection shall not apply to an indigent person.

(b) If the bond required under subsection (a) is not paid within thirty (30) days of the filing of the action, the action shall be dismissed.

Id. at §1(a) & (b).

1. The initial question is whether the posting of this type of surety bond violates the Open Courts Clause of the Tennessee Constitution, which provides "[t]hat all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." Tenn. Const. art. 1, § 17.

Tennessee's Open Courts Clause was designed "to ensure that all persons would have access to justice through the courts." William C. Koch, Jr., Reopening Tennessee's Open Courts Clause: A Historical Consideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333, 341 (1997). This type clause exists in various forms in thirty-eight states, including Tennessee. Id. Although this clause does not explicitly appear in the United States Constitution (id.), the concept of open access to courts is implicit in several provisions of the federal Constitution and has long been recognized in federal jurisprudence. As the Sixth Circuit Court of Appeals succinctly explained:

"It is beyond dispute that the right of access to the courts is a fundamental right protected by the Constitution." Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 959 (6th Cir.1986). In fact, the right of access to the courts finds support in several provisions of the Constitution including: the Due Process Clause of the Fourteenth Amendment, Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974), the Equal Protection Clause, Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987), the First Amendment, Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987) (citing Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)), and the Privileges and Immunities Clause of Article IV, see, e.g., Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148, 28 S.Ct. 34, 35, 52 L.Ed. 143 (1907); Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990).

The right of access in its most formal manifestation protects a person's right to physically access the court system. Without more, however, such an important right would ring hollow in the halls of justice. See Chambers, 207 U.S. at 148, 28 S.Ct. at 35 ("In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship. . . ."). Access to courts does not only protect one's right to physically enter the courthouse halls, but also insures that the access to courts will be "adequate, effective and meaningful." Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977).

Swekel v. City of River Rouge, 119 F.3d 1259, 1261-62 (6th Cir. 1997), cert. denied sub nom. Swekel v. Harrington, 522 U.S. 1047 (1998).

An early Tennessee case recognized that excessive security requirements could violate Tennessee's Open Courts Clause. Jones v. Kearns, 8 Tenn. (Mart. & Yer.) 241, 247 (1827) (Supreme Court concluding that Open Courts Clause prohibited clerks of the courts from requiring any additional security for costs once the security required by statute had been provided). Since that date, courts in other jurisdictions have found that similar constitutional provisions requiring open access to the courts prohibit impeding such access through unreasonable financial barriers. As the Oklahoma Supreme Court explained in summarizing these various court cases:

The recurring element in these cases is that fees or costs that are not deemed to be for court-related purposes are violative of the open access to the courts guarantee. The upshot is that such fees, whatever they are called, impose an unreasonable burden on litigants. Cf. Crocker v. Finley, 99 Ill. 2d 444, 77 Ill. Dec. 97, 459 N.E.2d 1346 (1984). A connection between filing fees imposed and the services rendered by the courts or for maintenance of the courts is required.

Fent v. State ex rel. Dept. of Human Services, 2010 OK 2, ¶ 16, 236 P.3d 61, 68 (2010). See also Trinity River Authority v. URS Consultants, Inc., 889 S.W.2d 259, 261 (Tex. 1994).

For example, Florida courts have determined that Florida's Open Courts Clause restricts the creation of financial barriers to court access. See G.B.B. Investments, Inc. v. Hinterkopf, 343 So.2d 899, 901 (Fla. 3d DCA 1977) (holding that the constitutional right of access to the courts sharply restricts the imposition of financial barriers to asserting claims and defenses in court). In Psychiatric Associates v. Siegel, the Florida Supreme Court held that statutes requiring persons to post bond sufficient to cover costs and attorney fees before their action can be prosecuted violates their constitutional right of access to courts. Psychiatric Associates v. Siegel, 610 So.2d 419, 425 (Fla. 1992).

The Supreme Court of New Hampshire considered whether a statute that required a party to pay fees to the probate court to hold a special session and render a judicial determination violated New Hampshire's Open Courts Clause. The Court, relying upon the guarantee that "every subject of this state is entitled . . . to obtain right and justice freely, without being obliged to purchase it," determined that New Hampshire's Open Courts Clause "forbid[s] the payment of a fee to a judge in consideration of his holding a special session and rendering a judicial decision for a party." In re Estate of Dionne, 518 A.2d 178, 179-180 (N.H. 1986) (citing Christy & Tessier v. Witte, 495 A.2d 1291 (1985)).

Similarly, although Illinois recognizes that the Open Courts Clause of the Illinois Constitution does not guarantee to the citizen the right to litigate without expense, the Clause does protects a citizen "from the imposition of such terms as unreasonably and injuriously interfere with his right to a remedy in the law or impede the due administration of justice." Ali v. Danaher, 265 N.E.2d 103, 106 (1970) (quoting Williams v. Gottschalk, 83 N.E. 141, 142 (1907); Adams v. Corriston, 7 Minn. 456, 461 (1862)).

Finally, Texas has perhaps the most similar Open Courts Clause to Tennessee's and has developed a wealth of authority addressing the impropriety of financial barriers to court access. Texas's Open Courts Clause states that "[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art I, § 13. In interpreting this provision, the Texas Supreme Court has on several occasions invalidated fee or surety requirements on the grounds such requirements unreasonably interfered with an individual's access to courts. See R. Communications, Inc. v. Sharp, 875 S.W.2d 314, 317-18 (Tex. 1994) (holding that a statute precluding injunctive relief when challenging a sales tax assessment unless the challenging party paid the assessed taxes or posted a bond equal to double the estimated tax liability was unconstitutional); State v. Flag-Redfern Oil Co., 852 S.W.2d 480, 485-86 (Tex. 1993) (finding that a regulation requiring payment of a deficiency assessment within thirty days of seeking judicial review of the assessment violated the Open Courts Clause); Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 450 (Tex. 1993) (holding unconstitutional an environmental regulatory statute authorizing the assessment of fines prior to judicial review and requiring a supersedeas bond in the amount of the fines assessed as a prerequisite to judicial review).

The application of these principles to the question presented leads to the conclusion that the process proposed by HB3619 to contest the licensure of equine slaughter facilities would likely be held unconstitutional under Tennessee's Open Courts Clause. The constitutional guarantee of access to courts forecloses unreasonable and arbitrary barriers to a citizen utilizing the courts to reconcile disputes. Here HB3619 conditions a proceeding to contest licensure upon a party posting a substantial bond, equal to 20% of the estimated cost of building the facility or the operational costs of an existing facility. Such a bond could easily equal or exceed hundreds of thousands of dollars. Should a party fail to post such a bond, the court is obligated to dismiss the action. HB3619 provides no means to challenge the licensure of an equine slaughter or processing facility except by posting the bond requirement. While HB3619 provides that indigent parties may have the bond waived, the bond's effect upon non-indigent parties with legitimate legal claims would be chilling. Such a prohibitive requirement would deter citizens from pursuing litigation to contest licensure of these type of facilities, and indeed the large amount of the bond seems to reinforce the perception that the bond's primary purpose is to discourage litigation opposing licensure.

2. The answer to Question 2 is pretermitted, given the response to Question 1 that HB3619 is constitutionally suspect under the Tennessee Constitution's Open Courts Clause.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ALEXANDER S. RIEGER
Assistant Attorney General

Requested by:
The Honorable Johnny W. Shaw
State Representative
36-C Legislative Plaza
Nashville, Tennessee 37243-0180