Is Tennessee's proposed pre-suit notice law for establishment clause claims constitutional?

Subject

Opinion No. 13-100, Constitutionality of Proposed "Local Government Interference Protection Act", December 6, 2013

Plain-English summary

Sen. Randy McNally asked the AG to evaluate Senate Bill 965 / House Bill 540 (108th Tenn. Gen. Assembly, 1st Sess. (2013), as amended in the House). The bill would have created the "Local Government Interference Protection Act," a special pre-suit regime applicable only to claimants who allege a violation of Tennessee's establishment clause (Tenn. Const. art. I, § 3) by a local government unit or local public servant. The AG opinion identified multiple constitutional defects.

Section 5: 60-day pre-suit notice + 120-day cure window for state establishment clause claims. Before filing suit, the claimant would have to send a certified-mail notice identifying the alleged violation. The local government would then have 60 days to respond and (if it elected the "we'll fix it" path) another 120 days to actually make the change. During that 6-month-or-more interval the claimant could not file suit. If the claimant filed too early or failed to comply with the procedural requirements, the court was required to dismiss and order the claimant to pay all litigation expenses including attorney's fees.

The AG concluded this scheme violates:

• Tennessee Constitution Art. I, § 3 (freedom of worship), because it singles out claimants asserting a fundamental religious-liberty right and burdens only them. Under strict scrutiny (State v. Tester, 879 S.W.2d 823 (Tenn. 1994)), the asserted state interest, reducing local government litigation expenses, is not compelling (Shapiro v. Thompson, 394 U.S. 618 (1969)), and the scheme is not narrowly tailored: it sweeps in every establishment clause claim, not just the prayer/historical-document context the legislature gave as the rationale.
• Tennessee Constitution Art. I, § 17 (open courts), because it delays access to immediate judicial relief (preliminary injunctions, TROs under Tenn. R. Civ. P. 65) at the very moment many establishment clause harms occur (a graduation prayer, a Christmas display, a board meeting invocation). Federal precedent treats First Amendment violations as presumptively irreparable harm (Elrod v. Burns, 427 U.S. 347 (1976)). And because Tennessee does not recognize a private cause of action for damages under the state constitution (Bowden Bldg. Corp.; Lee v. Ladd), losing the ability to obtain timely injunctive relief may mean no effective remedy at all.

The mandatory-dismissal provision, including dismissal because the attorney had filed similar suits in the past 24 months, would compound the access-to-courts problem.

The bill could not apply to federal claims under 42 U.S.C. § 1983 in any event: Felder v. Casey, 487 U.S. 131 (1988), preempts state notice-of-claim statutes for federal civil rights claims; Patsy v. Board of Regents, 457 U.S. 496 (1982), bars exhaustion requirements before § 1983 suits.

Section 7: new criminal offense for "offensively repetitious" pre-suit communications. SB 965 would have made it a Class C misdemeanor for a person to communicate (in writing or electronically) with a local government unit or local public servant "in an offensively repetitious manner" with intent to influence cessation of a particular policy, where the communication threatened legal action and the speaker knew it would "alarm or annoy" the official.

The AG found this:

• Content-based restriction on speech about matters of public concern (R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)), so subject to strict scrutiny. No compelling interest exists in shielding officials from "annoying" communications about public matters. Coates v. City of Cincinnati, 402 U.S. 611 (1971), invalidated an "annoying conduct" ordinance.
• Void for vagueness under Grayned v. City of Rockford, 408 U.S. 104 (1972), because "offensively repetitious" and "alarm or annoy" are not adequately defined and would chill protected speech. The more stringent vagueness standard for laws that touch on speech (Davis-Kidd Booksellers v. McWherter, 866 S.W.2d 520 (Tenn. 1993)) applies.

The AG also noted that Tenn. Code Ann. § 39-17-308 (general harassment statute) already addresses genuine harassment without these defects.

Currency note

This opinion was issued in 2013. 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.

SB 965 was a pending bill in 2013. Whether it passed (and if so in what form), or whether a successor bill exists, should be checked against the General Assembly's records before treating this analysis as describing current Tennessee law. The constitutional doctrines cited (strict scrutiny for content-based speech, vagueness, open-courts) remain operative under their respective constitutions, though specific precedents continue to develop.

Background and statutory framework

Tennessee freedom-of-worship clause. Tenn. Const. art. I, § 3 secures "a natural and indefeasible right to worship Almighty God" and prohibits preference "by law" to any religious establishment or mode of worship. The Tennessee Supreme Court has called it "practically synonymous" with the First Amendment's Establishment Clause but with "a substantially stronger guaranty of religious freedom." Martin v. Beer Board for City of Dickson, 908 S.W.2d 941, 946 (Tenn. Ct. App. 1995).

Open-courts clause. Tenn. Const. art. I, § 17: "[A]ll 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."

Strict scrutiny standard. Grutter v. Bollinger, 539 U.S. 306, 333 (2003); Shaw v. Hunt, 517 U.S. 899, 908 (1996); Doe v. Norris, 751 S.W.2d 834, 842 (Tenn. 1988). Government must demonstrate compelling state interest and narrow tailoring.

Federal civil-rights preemption. Felder v. Casey holds that state notice-of-claim laws are preempted by the Supremacy Clause when applied to § 1983 claims brought in state court. Patsy v. Board of Regents bars exhaustion of state administrative remedies as a prerequisite to § 1983 actions. Together they meant SB 965 could not be applied to federal establishment clause claims, regardless of forum.

Irreparable harm from First Amendment violations. Elrod v. Burns establishes that loss of First Amendment freedoms "for even minimal periods of time, unquestionably constitutes irreparable injury." Applied by Chaplaincy of Full Gospel Churches, Baker v. Adams County, Doe v. Pittsylvania County, and ACLU v. City of St. Charles in establishment-clause contexts.

Vagueness doctrine. Grayned v. City of Rockford sets the two-pronged test: laws must (1) give ordinary persons fair notice of what is prohibited, and (2) provide explicit standards to prevent arbitrary enforcement. City of Chicago v. Morales and Coates v. City of Cincinnati applied the doctrine to invalidate "annoying" and "loitering" ordinances. Heightened review when speech is implicated. Davis-Kidd Booksellers; State v. Lakatos.

Tennessee state-constitutional remedies gap. Bowden Bldg. Corp.; Lee v. Ladd; Boling v. Gibson County. Tennessee does not recognize an implied private cause of action for damages based on state constitutional violations. Injunctive relief is therefore disproportionately important. Overstreet v. Lexington-Fayette Urban Gov't, 305 F.3d 566, 578 (6th Cir. 2002), recognizes harm not fully compensable by money damages is typically irreparable.

Hooker v. Sundquist precedent. 150 S.W.3d 406 (Tenn. Ct. App. 2004) approved a narrow pre-litigation screening mechanism, but only for a vexatious-litigator situation under Rule 11. The AG distinguished SB 965's broad sweep from Hooker's narrow remedy for proven abuse.

Common questions

What was the legislature trying to accomplish?

The bill's findings cited rising local government legal costs from establishment clause lawsuits (prayer at meetings, ceremonial displays, etc.) and a desire to give localities a "safe harbor" to fix violations before being sued and ordered to pay attorney's fees under 42 U.S.C. § 1988. The AG accepted the goal as legitimate but found the means unconstitutional.

Could the legislature impose any pre-suit requirements?

Some, perhaps. A narrowly tailored Rule 11-style sanctions process for repeated frivolous filings (the Hooker model) would likely survive. A broad pre-suit notice that applies to every plaintiff regardless of merit, with mandatory dismissal and fee-shifting for non-compliance, would not.

What about the criminal speech offense in Section 7?

The AG was unsparing: a content-based, vague restriction on speech about public matters cannot survive strict scrutiny. Officials annoyed by repetitive complaint emails have ordinary harassment statutes (§ 39-17-308) and the political process available.

Did the bill cover federal § 1983 establishment clause claims?

No. Felder v. Casey preempted that. The bill applied only to state-law establishment clause claims, but those are the very claims for which Tennessee provides no damages remedy, magnifying the access-to-courts problem.

What happened to SB 965?

The AG opinion was issued during the legislative process. The bill's eventual fate (passed in some form, died in committee, etc.) should be verified against legislative records, not from this opinion.

Citations

Constitutional: U.S. Const. amends. I, XIV; Tenn. Const. art. I, §§ 3, 17, 19. Statutory: Tenn. Code Ann. §§ 10-7-101 to -702 (Public Records Act); 39-17-308 (harassment); 39-16-517 (proposed); 42 U.S.C. § 1983. Rules: Tenn. R. Civ. P. 11, 65.03, 65.04. Cases: Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009); Felder v. Casey, 487 U.S. 131 (1988); Patsy v. Board of Regents of State of Florida, 457 U.S. 496 (1982); Johnson v. Robinson, 415 U.S. 361 (1974); State v. Tester, 879 S.W.2d 823 (Tenn. 1994); Grutter v. Bollinger, 539 U.S. 306 (2003); Shaw v. Hunt, 517 U.S. 899 (1996); Doe v. Norris, 751 S.W.2d 834 (Tenn. 1988); Shapiro v. Thompson, 394 U.S. 618 (1969); Elrod v. Burns, 427 U.S. 347 (1976); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006); Baker v. Adams County/Ohio Valley School Board, 310 F.3d 927 (6th Cir. 2002); Lee v. Weisman, 505 U.S. 577 (1992); Doe v. Pittsylvania County, Va., 842 F. Supp. 2d 927 (W.D. Va. 2012); ACLU of Illinois v. City of St. Charles, 794 F.2d 265 (7th Cir. 1986); Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434 (Tenn. Ct. App. 1999); Lee v. Ladd, 834 S.W.2d 323 (Tenn. Ct. App. 1992); Overstreet v. Lexington-Fayette Urban Gov't, 305 F.3d 566 (6th Cir. 2002); Hooker v. Sundquist, 150 S.W.3d 406 (Tenn. Ct. App. 2004); Martin v. Beer Board for City of Dickson, 908 S.W.2d 941 (Tenn. Ct. App. 1995); Amelkin v. McClure, 330 F.3d 822 (6th Cir. 2003); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905 (Tenn. 1996); Bemis Pentecostal Church v. State, 731 S.W.2d 897 (Tenn. 1987); Coates v. City of Cincinnati, 402 U.S. 611 (1971); Grayned v. City of Rockford, 408 U.S. 104 (1972); City of Chicago v. Morales, 527 U.S. 41 (1999); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993); State v. Lakatos, 900 S.W.2d 699 (Tenn. Crim. App. 1994).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-100.pdf

Original opinion text

Full opinion text unavailable from the official source in non-truncated form. See the linked PDF above for the complete text. Key text below preserves the question, opinion, and substantive analysis as extracted from the source.

December 6, 2013

Opinion No. 13-100

Constitutionality of Proposed "Local Government Interference Protection Act"

QUESTION

Do the provisions of Senate Bill 965/House Bill 540 of the 108th Tennessee General Assembly, 1st Sess. (2013), as amended in the Tennessee House of Representatives (hereinafter "SB965") violate the United States or Tennessee Constitutions?

OPINION

Yes. The provisions of SB965 imposing pre-litigation requirements for claims alleging "establishment clause" violations under the Tennessee Constitution would violate the right of freedom of worship provision of Article I, Section 3 of the Tennessee Constitution and the open access to courts provision of Article I, Section 17 of the Tennessee Constitution. The provisions creating a criminal offense prohibiting certain communications would violate the First Amendment to the United States Constitution and Article I, Section 19, of the Tennessee Constitution and would be void for vagueness under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This response pretermits the need to examine any other possible constitutional issues with SB965.

ANALYSIS

SB965 would amend Tennessee Code Annotated, Title 29, relative to "Remedies and Special Proceedings" in judicial proceedings, by adding a new chapter called the "Local Government Interference Protection Act." SB965, Section 5(a)(1), specifies:

At least sixty (60) days prior to any claimant filing an establishment clause claim against a local government unit or local government servant, the claimant or the claimant's attorney shall provide written notice [by certified mail, return receipt requested] of the potential claim to the local government unit or local public servant who the claimant intends to name as a defendant. No such action shall be commenced until such notice has been provided.

The written notice shall state: (A) the state constitutional provision alleged to be violated; (B) the specific facts that constitute the alleged violation of the constitutional provision; (C) that the local government unit or local public servant has a sixty-day period in which to respond, and; (D) that the local government unit or local public servant "should contact legal counsel regarding any questions about the notice or the local government unit or local public servant's rights under state law." Id. at Section 5(a)(3).

The local government unit or local public servant is provided a response time following the notice during which no establishment clause lawsuit may be initiated in a Tennessee state or federal court. SB965, Section 5(b), specifies, among other things, that the entity has 60 days to respond by certified mail and may (1) commit to alter the policy, (2) challenge the validity of the allegation, (3) state that the issue is the same as a previously corrected violation, or (4) state that the issue was previously determined not to be a violation. If the entity commits to alter, it has 120 days to do so. If the claimant disputes the cure, a second 30-day window applies.

Section 6 requires the claimant or claimant's attorney filing a U.S. Constitution Establishment Clause claim to file an affidavit certifying that the statutory notice was provided, along with a list of all establishment-clause lawsuits the claimant and the claimant's attorney have filed in the past 24 months against other local government units or local public servants in this state, with final dispositions.

SB965 § 6(c)(3) requires mandatory dismissal with prejudice of an establishment clause claim where the claimant or the claimant's attorney has, within the previous 24 months, filed a similar lawsuit dismissed on the ground that the claimant failed to establish that there was no set of circumstances under which the challenged policy could comply with the establishment clause.

Article I, Section 3, of the Tennessee Constitution provides a right of freedom of worship: "That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience . . . and that no preference shall ever be given, by law, to any religious establishment or mode of worship."

Similar to the First Amendment's Establishment Clause, which prohibits laws "respecting an establishment of religion," the Tennessee Constitution's counterpart contained in Article I, Section 3, prohibits giving a "preference by law to any religious establishment or mode of worship." "Even though Tenn. Const. art. I, § 3, is 'practically synonymous' with the First Amendment, the Tennessee Supreme Court has also observed that it contains a substantially stronger guaranty of religious freedom." Martin v. Beer Board for City of Dickson, 908 S.W.2d 941, 946 (Tenn. Ct. App. 1995). Tennessee courts nonetheless typically apply the same criteria as the United States Supreme Court in its federal Establishment Clause cases when addressing alleged violations of the Tennessee Constitution's counterpart. Id. at 949-51.

SB965 is applicable only to claimants asserting a violation of the rights guaranteed by Article I, Section 3, of the Tennessee Constitution allegedly committed by a local government unit or a local public servant. It is without question that the free exercise of religion as reflected in the establishment clauses of the Tennessee and United States Constitutions is a fundamental constitutional right. See, e.g., Johnson v. Robinson, 415 U.S. 361, 375 n. 14 (1974). SB965 seeks to delay litigation by persons alleging a violation of this constitutional right under the Tennessee Constitution. Thus, an equal protection analysis of SB965 requires strict scrutiny of this legislative classification that interferes with the exercise of a fundamental right. See State v. Tester, 879 S.W.2d 823, 827-28 (Tenn. 1994). A legislative enactment reviewed under a strict scrutiny analysis will only be sustained if a state can demonstrate a compelling state interest and that the statute is narrowly tailored to meet the state's compelling interest. Grutter v. Bollinger, 539 U.S. 306, 333 (2003); Shaw v. Hunt, 517 U.S. 899, 908 (1996); Doe v. Norris, 751 S.W.2d 834, 842 (Tenn. 1988).

SB965 would not be sustained under strict scrutiny review. SB965 sets forth the rationale supporting its enactment, stating that "the increase in lawsuits challenging prayer and invocations in public meetings and the display of historical documents has resulted in rising legal costs, including substantial attorney fee awards to plaintiffs, incurred by local governments to defend against such claims." SB965 § 3(7). The purpose of SB975 is "to create a safe harbor for local governments desiring to avoid needless litigation and to encourage them to adopt a resolution, a written policy governing invocation practices to the extent permissible under the Establishment Clause." Id. § 3(9). The goal of SB965 is to reduce "the threat of costly litigation expenses, and the potential loss of taxpayer money, resulting from ['establishment clause'] claims [that] seriously interferes with the efficient and economical operation of local governments." Id. § 3(8).

Reducing local government litigation expenses is unlikely to constitute a compelling state interest. Cf. Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (stating that the "saving of welfare costs cannot justify an otherwise invidious classification"). Even assuming that reducing local government litigation costs may be found to constitute a compelling state interest, the provisions of SB965 are not narrowly tailored to accomplish that goal without interfering with a person's constitutional right to access to the courts to challenge an alleged violation of his or her free exercise of religion.

The Tennessee Constitution Article I, Section 17 provides: "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."

While SB965, Section 3, refers to concerns regarding lawsuits challenging prayer and invocations in public meetings and the display of historical documents, SB965 is not limited only to those specific challenges, but encompasses any judicial claim involving alleged violations by a local government of Article I, Section 3 of the Tennessee Constitution. Moreover, a substantial number of claimants asserting violations of Tennessee's "establishment clause" would likely assert immediate and irrevocable harm from the alleged violation. Courts have found that a demonstration of a likelihood of success on an alleged violation of a fundamental constitutional right, with a chilling effect on protected activity, may be sufficient to demonstrate immediate and irrevocable harm for purposes of granting preliminary injunctive relief. See generally Elrod v. Burns, 427 U.S. 347, 373 (1976); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 298-302 (D.C. Cir. 2006); Baker v. Adams County/Ohio Valley School Board, 310 F.3d 927, 929-30 (6th Cir. 2002).

Furthermore, denying only claimants asserting "establishment clause" violations the ability to seek immediate judicial relief may result in those claimants being denied any effective relief as the alleged violations may have been completed during the pre-litigation notice and governmental response time. See, e.g., Lee v. Weisman, 505 U.S. 577, 592-98 (1992) (graduation prayer); Doe v. Pittsylvania County, Va., 842 F. Supp. 2d 927, 934-35 (W.D. Va. 2012) (county board meeting prayers); ACLU of Illinois v. City of St. Charles, 794 F.2d 265, 274-75 (7th Cir. 1986) (city's lighted Latin cross). Removing the ability of a claimant to obtain immediate judicial relief regarding State "establishment clause" violations may also effectively deny that claimant meaningful access to the courts because Tennessee law does not recognize an implied private cause of action for damages based upon violations of the Tennessee Constitution. Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 446 (Tenn. Ct. App. 1999); Lee v. Ladd, 834 S.W.2d 323, 324 (Tenn. Ct. App. 1992). See also Overstreet v. Lexington-Fayette Urban Gov't, 305 F.3d 566, 578 (6th Cir. 2002).

SB965 provides that any State "establishment clause" claim shall, upon motion, be "dismissed with prejudice" if "the notice of claim is not provided" and documented, or if the claim is duplicative of, or similar to, a prior lawsuit by the claimant or the claimant's attorney within 24 months that was dismissed on the ground that the policy could not be implemented in a manner that comports with the establishment clause. SB965 § 6(c)(3). Mandatory dismissal, with prejudice, of an "establishment clause" claim based upon the foregoing vague provision would constitutionally interfere with a claimant's constitutional right of access to the courts to assert an alleged constitutional violation. See Tenn. Const. art. I, § 17. The mandatory dismissal is required not only due to prior litigation by this particular claimant, but even due to prior litigation by the attorney chosen by the current claimant. In contrast to the situation where sanctions are imposed after a violation of Tenn. R. Civ. P. 11 has been demonstrated due to repeated, frivolous, and vexatious litigation, there does not appear to exist a sufficient governmental interest in imposing such a mandatory dismissal only in cases wherein the claimant is asserting violations of the State "establishment clause." See Hooker v. Sundquist, 150 S.W.3d 406 (Tenn. Ct. App. 2004).

SB965 also creates a new criminal offense at Tenn. Code Ann. § 39-16-517. SB965 § 7. SB965 then creates the following new offense:

A person commits an offense who intentionally, without or prior to the filing of a complaint, lawsuit, or other legal action in any state court communicates, in writing or by electronic communication, with a local government unit or local public servant in an offensively repetitious manner with the intent to influence, persuade, or induce the local government unit or local public servant to terminate, halt or cease a particular policy, practice, action or custom and the person:

(1) (A) Intends the communication to be a threat of initiating legal action against the local government unit or local public servant challenging the particular policy, practice, action or custom, and a reasonable person would perceive the communication to be a threat of initiating legal action; or

(B) Makes a threat within the communication to initiate legal action against the local government unit or local public servant challenging the policy, practice, action or custom; and

(2) Makes the communication knowing that it will alarm or annoy the local government unit or local public servant.

Id. at § 7(b). A violation of this provision is a Class C misdemeanor, punishable only by a fine of up to $2,500.00.

This criminal offense is facially unconstitutional as violative of the First Amendment of the United States Constitution and the right to freedom of speech under Article I, Section 19, of the Tennessee Constitution. In contrast to the prohibitions upheld in the general criminal harassment statute, see Tenn. Code Ann. § 39-17-308, the offense created by Section 7 is a content-based restriction on speech involving matters of public concern. Regulations based upon the content of speech are presumptively invalid. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992). Content-based restrictions on speech are subject to analysis under the strict-scrutiny test. There is no compelling state interest in a local governmental entity or local public servant being free from receiving written or electronic communications regarding a matter of public interest that includes a threat of initiating legal action and that may "alarm or annoy the local government unit or local public servant" as provided in Section 7 of SB965. See Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971).

Section 7, as amended, is also constitutionally invalid under federal due process standards as being "void for vagueness" because this provision fails to adequately define its prohibitions (such as what comprises "an offensively repetitious manner" and when the person should know "that it will alarm or annoy the local government unit or local public servant" in the context of "threatening" litigation) and what communication constitutes a violation. Grayned v. City of Rockford, 408 U.S. 104, 108-10 (1972); City of Chicago v. Morales, 527 U.S. 41, 56 (1999); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 531-33 (Tenn. 1993).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

STEVEN A. HART
Special Counsel

Requested by:

The Honorable Randy McNally
State Senator
307 War Memorial Building
Nashville, TN 37243-0205