TN Legislator Propose Bizarre Bill on Church/State Suits

Rob Boston of Americans United writes about a new bill proposed in the Tennessee state legislature that would make it considerably harder to bring church/state suits to court. State Sen. Randy McNally (yeah, his parents should be beaten for that one) introduced SB 965. The bill does two rather contradictory things:

As introduced, affords local governments an opportunity to implement a written policy governing invocation practices before a lawsuit is filed on establishment clause grounds; requires a plaintiff send notice of the alleged violation to the local government before filing a lawsuit; prohibits repetitious communications sent to local governments with intent to induce the government to forgo a lawsuit.

So if you want to sue a school or local government for violating the Establishment Clause, you have to write to them first and give them a chance to fix it (which is not a bad idea, and I don’t know of any organization involved in such matters that doesn’t already do that), but you better not write to them multiple times. That would be a “repetitious communication” and that’s also illegal. Rob Boston responds:

Just to be clear, it’s Americans United policy to send a letter any time we believe a government entity is in violation of the First Amendment. Our hope is that by explaining where local officials have gone wrong, we can persuade them to make changes and settle the matter outside of court.

We do that because it’s the right thing to do. It just makes sense. But there is nothing in federal law that requires us to do it. I don’t believe a state legislator in Tennessee can draft new rules for how cases are filed in federal courts.

They can’t. This would be struck down in a heartbeat. The federal courts are bound by the Federal Rules of Civil Procedure, not by state law.

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What Are Your Thoughts?leave a comment
  • Maybe I’m just too pessimistic, but I can see how this would be great for them:

    * They’re sent one communication, and they can feign ignorance, and it can’t be taken to court because the plaintiff first had to communicate once.

    * They’re sent more than one, because the first was ignored, and they can then claim to have gotten both, and now it’s illegal.

    Ahhh, the devious thinking of a creationist.

  • Ben P

    They can’t. This would be struck down in a heartbeat. The federal courts are bound by the Federal Rules of Civil Procedure, not by state law.

    This is a blatant quibble, but the way things usually work, I could see the law being simply ignored by everyone except the legislator who will feel good about passing it. It’s actually the repititious communications part that could lead to it being struck down.

    In practice, suppose a local government does something unconstitutional. Someone files a lawsuit without first writing a letter. The local government will more than likely have state counsel, either a city attorney, municipal league or a state attorney general’s office.

    The author of the bill clearly envisions that the defense attorney will file a motion to dismiss the suit.

    In my experience a federal judge probably wouldn’t even bother formally striking down the law, they’d just deny the motion, stating a suit was initiated properly under the Federal Rules, and just dare someone to appeal it by arguing state law trumps the FRCP. I would think that most attorney generals would be smart enough not to even bother with such a motion. They’d just be wasting time.

    The repetitious communications is interesting though. I’d wager a 50-50 shot that’s also unconstitutional under the first amendment. It looks like a harassment law but sending “two letters” simply can’t rise to harassment that might create an exception. Sending 100 might, but I doubt that’s what’s occurring. If someone were dumb enough to charge the ACLU or whoever under the law, they’d raise the first amendment as a defense and I could see it getting struck down.

  • subbie

    The bill is patently unconstitutional, but it’s not quite as bad as you paint it. The summary you linked to had this line at the bottom: “The offense would not apply to a person providing a written notice to a local government unit or local public servant pursuant to this bill.”

    That the bill is unconstitutional is established by Felder v. Casey, 487 U.S. 131 (1988), which struck a Wisconsin statue that required civil rights claimants to file a notice of claim against the state before filing suit.

  • eric

    It seems to me this will have the opposite of the intended effect. Since filing without notification can’t be made illegal, but multiple notifications could still be illegal under this state law, the safest thing to do once it passes is to not notify.

    Of course by “intended” I mean “intended, if one was naive and took them at their word.” The real intention here is the same as rules requiring ultrasounds and counseling before an abortion: to make the procedure so onerous, you deter people from doing it.

  • The Constitution says that citizens have the right to petition for redress of grievances.

    Using “strict constructionism,” since it doesn’t say “petitions” with an S, it’s obvious that the founding fathers only meant for it do be done once.

  • I can’t see how prohibiting a plaintiff from sending more than one letter is constitutional under the free speech clause. Like Ben P said, two letters is not harrassment under any test.

  • Reginald Selkirk

    prohibits repetitious communications sent to local governments with intent to induce the government to forgo a lawsuit.

    Let’s protect freedom of religion (not) by stifling freedom of speech.