On August 30, 2023, a three-judge panel of Tennessee judges ruled that the case of Stephen L. Hughes, et al. v. Bill Lee, et al., Gibson Chancery No: 24475 that the claims by the plaintiffs which assert that Tennessee’s existing statutes that make it a crime to carry a firearm in a public park, greenway, campground and other facilities identified in the “parks statute” (Tennessee Code Annotated 39-17-1311) can move forward against Bill Lee in his capacity as the Governor of the State of Tennessee and against Jonathan Skrmetti, in his capacity as the state’s appointed Attorney General.
On February 16, 2023, the Hughes plaintiffs filled a complaint which asked the court to rule that Tennessee’s “parks statute” and the related statutory scheme which makes it a crime to carry a firearm with the intent to go armed is unconstitutional under the State Constitution, as the state’s constitution has been since 2010 subject to the “shall not be infringed” mandate of the Second Amendment. The lawsuit was initially filed against both Bill Lee and Jonathan Skrmetti in their respective official capacities.
The state’s initial response was that the request merely for the court to rule on the constitutionality of the statutory scheme should be dismissed because the claims could not be brought, according to the state’s attorney, against either Bill Lee or Jonathan Skrmetti. The state’s motion to dismiss was argued to the Court in June 2022 and on August 30, 2023, the three-judge panel rejected all of the state’s claims and ordered that the case could and should proceed against Governor Lee and Attorney General Skrmetti in their official capacity.
Essentially, the Court rejected the state’s claims that neither the Governor nor the Attorney General have authority to enforce the laws in Tennessee and therefore they should not be named as parties in the case even in their official capacities. Here are a few highlights.
The state claimed that the lawsuit should be dismissed because the Governor and the Attorney General are protected by sovereign immunity. The Court quickly rejected that assertion noting that both a statute which was relied on by the Plaintiffs and a Tennessee Supreme Court decision were to the contrary.
Plaintiffs, however, point to Tenn. Code Ann. § 1-3-131, which provides, “Notwithstanding any law to the contrary, a cause of action shall exist under this chapter for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.” See Pls’ Resp. to Mot. to Dismiss by Defs.’ Gov. Bill Lee & Attorney General Jonathan Skrmetti, at 11, June 13, 2023 [hereinafter “Pis.’ Resp.”]. As Plaintiffs note, Pis.’ Resp., at 11, the Supreme Court has construed Tenn. Code Ann. § 1-3-131 as waiving sovereign immunity. Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279 v. Rausch, 645 S.W.3d 160, 168 (Tenn. 2022) (“The General Assembly clearly and unmistakably waived sovereign immunity by enacting Tennessee Code Annotated section 1-3-121.”). Thus, because Plaintiffs seek declaratory and injunctive relief on a constitutional basis regarding the enforcement of the challenged statutes, sovereign immunity is no bar to their claims.
Opinion, pp. 7-8.
The Attorney General also argued that he should not be named as parties to the lawsuit because Tennessee a statute and some case law only require that notice of a constitutional challenge be served on the Attorney but that the statute does not require the Attorney General to be a party. Again, the Court pointed to the Plaintiffs’ analysis that two Tennessee Supreme Court decisions not only authorize but require them to sue the Attorney General when challenging the constitutionality of a state criminal statute.
The Supreme Court indeed states in Beeler, 223 S.W.2d at 917, that “the Attorney General” was “a necessary and proper party defendant” in the declaratory judgment action before it. But the Court actually relies upon a prior case for its construction of the precursor to Tenn. Code Ann. § 29-14-107(b). See Beeler, 223 S.W.2d at 916. In the case cited by the Court for their previous statutory construction, Buena Vista Special School District v. Board of Election Commissioners of Carroll County, 116 S.W. 1008, 1009 (Tenn. 1938), the Court simply states without analysis that “the Attorney General of the State should be made a party” under the Declaratory Judgment Act because the constitutionality of a statute was challenged. State Defendants make a compelling argument for why a plain reading of the statute is a superior construction. See State Defs.’ Reply, at 10-11. But such arguments are irrelevant if our Supreme Court has construed the statute differently.
Opinion, pp. 9-10.
The State also asserted that the Governor should be dismissed because he has no direct enforcement responsibility over this criminal statutory scheme. Again, the Court rejected the State’s misplaced arguments.
Indeed, the Governor’s inclusion in this suit in particularly appropriate when, as here “enforcement and administration responsibilities are diffused among different agencies and levels of state and local government.” Doe v. Haslam, Nos. 3:16-cv-02862 & 3:17-cv-00264, 2017 WL 5187117, at *9 (M.D. Tenn. Nov. 9, 2017) (citing Allied Artists Picture Corp. v. Rhodes, 679 F.2d 656 (6th Cir. 1982)). In Allied Artists, the Sixth Circuit explained that similar suits to this one “may properly be brought against a governor to challenge an unconstitutional law, ‘ [ e ]ven in the absence of specific state enforcement provisions,’ if ‘the substantial public interest in enforcing [the unconstitutional law] places a significant obligation upon the Governor to use his general authority to see that state laws are enforced.”‘ 679 F.2d at 665 & n.5. In consideration of the relief requested and the claims stated in the Petition, as amended, the undersigned find a “substantial public interest” is apparent. The Court further notes that the interest of judicial economy, while not dispositive, is nevertheless served by allowing a constitutional challenge to proceed against the Governor rather than requiring the naming of every state and local official who might enforce a particular statute. Accordingly, we hold the enforcement of Tenn. Code Ann. §§ 39-17-1307, -1311 is fairly traceable to the actions of Governor Lee.
Opinion, p. 17.
The State similarly argued that the Attorney General has no enforcement authority over the criminal statutes and should be dismissed. Again, the Court found the State’s claims unpersuasive and contrary to law.
We find it inconceivable that, if a plaintiff is required by law to add a particular party to a lawsuit, the plaintiff would lack standing against that same party. See Tenn. Code Ann. § 29-14-107(b); Beeler, 223 S.W.2d at 916. At minimum, a sufficient nexus between the statute and the responsibilities of the Attorney General is recognized by the requirement that he be made a party.
Accordingly, we hold the enforcement of Tenn. Code Ann.§§ 39-17-1307, -131I is fairly traceable to Attorney General Skrmetti.
Opinion, p. 19
The unanimous ruling of this three-judge Court allows the case to move forward on the merits which is a constitutional challenge to a statutory scheme that the Governor supports, that the Legislature has protected and allowed to remain the law and that the Second Amendment, the Fourteenth Amendment and the federal civil rights statutes all likely condemn.
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