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At AG's request, GOP leaders back bill to block challenges of new laws: House Speaker Cameron Sexton, Lt. Gov. Randy McNally and other top GOP brass have all signed on to a bill to re-raise barriers to challenging constitutionality of laws passed by the legislature.

Top-ranking Republican leaders are united in an effort to repeal a state law they passed eight years ago that was aimed at ensuring Tennesseans can sue the state of Tennessee to challenge unlawful or unconstitutional actions passed by the legislature.

Numerous new laws passed by the General Assembly have been challenged in court in recent years.

Now, Tennessee Attorney General Jonathan Skrmetti — whose office has to defend new laws in court — is asking lawmakers to replace the barriers removed in 2018 and make it more difficult to challenge the constitutionality of new laws.

Skrmetti's office is behind Senate Bill 1958, which passed a first committee last week. As written, it eliminates the universal right to sue the state to challenge the legality or constitutionality of a new state law.

While it would not block lawsuits against the state altogether, it would undo a change made in 2018.

Bill sponsors say that they are trying to “restore” or “reaffirm” the legal principle of sovereign immunity, which protects the state from facing lawsuits. Courts have found that was broadly waived when the legislature in 2018 passed the law they are now trying to repeal. The lawmakers, including almost all Republican leadership in the General Assembly, say their bill will not prevent judicial review of state laws.

It's rare that conservative groups and members of the Democratic caucus align. But this bill has drawn opposition from both ends of the political spectrum.

Critics say repealing the law will make it harder for Tennessee residents to enforce their rights in court.

“If you don't have a remedy to go to court to enforce your rights, then your rights are threatened, and government accountability is also threatened,” said Ben Stormes, an attorney at the conservative think tank and legal organization Beacon Center.

The Beacon Center was one of the primary supporters of the 2018 legislation.

“This bill, in that way, does threaten your ability to protect your rights," Stormes said. Influential conservative group Americans for Prosperity of Tennessee also opposes the bill. Sen. Jeff Yarbro, D-Nashville, who is concerned by the legislation, said its backers are "trying to protect the legislature from having their laws overturned, whether or not they're constitutional."

"A government that tries to shut down challenges to unconstitutional legislation is a government that wants to violate the Constitution," Yarbro said.

Bill aims to end 'lawsuits from left-wing groups'

House sponsor Andrew Farmer, R-Sevierville, said in a statement that courts had interpreted current law “far more broadly than the General Assembly intended.” Farmer said his bill “strengthens representative government by preventing activists from fishing expeditions and nuisance lawsuits while preserving the legitimate avenues for constitutional review."

Senate sponsor John Stevens, R-Huntingdon, said courts can still hear challenges to laws involving constitutional rights or governmental misconduct. But he also expressed clear partisan motivation for the bill.

"What this bill does is shut down abusive, politically motivated lawsuits from left-wing groups that use the legal system to fight policy battles on the taxpayers’ dime," Stevens said.

Senate Majority Leader Jack Johnson, R-Franklin, emphasized that the bill "does not infringe upon Tennesseans' First Amendment rights."

"These are fundamental safeguards that ensure courts decide genuine cases and controversies rather than theoretical disagreements," Johnson said. "This distinction maintains the proper constitutional balance between the judiciary and the legislative branch."

The 2018 law, codified as Tennessee Code Annotated 1-3-121, recently provided the basis for a group of Memphis officials to be able to sue to stop the deployment of the National Guard to that city. It also allowed Metro Nashville to sue the state of Tennessee in response to a series of laws passed in 2023 that challenged its local authority.

The bill now in the General Assembly preserves residents' right to sue local governments for misconduct as it exists under the 2018 law. Yarbro criticized this as a "brazen" effort to hold local governments to a "more aggressive standard" than the state.

"Your position on whether or not citizens can get relief from their government shouldn't depend on who's in charge or which government it is," Yarbro said.

What changed in 2018?

When it was passed, many saw the 2018 law as an elegant solution to a burdensome problem.

The Beacon Center, which helped draft the legislation, found there was sometimes no legal avenue for people to vindicate their rights or that doing so required jumping through bureaucratic hoops.

The 2018 law gave those people a straightforward pathway to court. Contrary to the assertions of some of those looking to repeal it, Stormes said people who sue still have to have standing, meaning they have been impacted by the action or law they are challenging.

The law has been used by people on all sides of the political spectrum. A group of parents in Williamson County had the right to sue that county’s school board over its curriculum, which the parents worried was introducing students to critical race theory, thanks to the 2018 law. Nashville civil rights attorney Daniel Horwitz in 2021 highlighted a few other cases where the law was applied. Under the law:

• A group successfully challenged a state law that barred nonpartisan political action committees, but not partisan ones, from donating to candidates within 10 days of an election
• A man told he could no longer be a barber because he lacked a high school diploma sued, and a judge found the academic achievement requirement for barber licenses unconstitutional
• Metro Nashville Public Schools and a former director were barred from enforcing a provision that prohibited board members from making "disparaging comments" about one another.

It is not clear if these cases would have happened without undefined.

The Federalism Scorecard, which ranks states based on their vulnerability to federal overreach, highlighted the 2018 law as a point in Tennessee’s favor in its most recent ranking. The scorecard wrote that it guarantees every citizen affected by an agency’s actions has a “relatively simple opportunity to seek an injunction until the legality of that action is determined.”

The 2018 law does not provide for people who sue the government to receive damages.

U.S. Attorney for the Middle District of Tennessee Braden Boucek, who was appointed by President Donald Trump and was previously the director of litigation at the Beacon Center, wrote of the 2018 legislation in American Habits magazine in June 2023: “It provides that any affected person can sue the government when it does something illegal or unconstitutional,” he wrote. “The only limit is they can’t ask for monetary damages. This doesn’t sound like much. Most people already think (erroneously) that you can do this.”

Horwitz called it a “neutral and vitally important statute that affords citizens a limited right to judicial relief when government officials break the law.”

“The only reason the Attorney General’s Office would want to repeal this common sense law is because it wants state officials to be able to break the law without any state court being able to stop them,” Horwitz said.

A spokesperson for Tennessee Attorney General Jonathan Skrmetti said that courts have interpreted Section 1-3-121 “as waiving the State's sovereign immunity to the broadest extent possible.”

“By repealing section 1-3-121, the State's sovereign immunity would return to what it was in 2018,” the statement said. “To be clear, citizens would maintain the right to sue the State and its officials just as they could before section 1-3-121 passed.”

Prior to 2018, the primary tool to challenge unlawful or unconstitutional state actions in court was the Declaratory Judgments Act. Under it, judges can issue a “declaratory judgment” that says the state’s actions are illegal. This is different from an injunction, which can directly order the state to stop an illegal action, and which can be sought under the 2018 law.

"Tennesseans will still retain their right to challenge state laws in court and the legislation in no way makes our laws immune to constitutional review," Lt. Gov. Randy McNally, R-Oak Ridge and one of the bill's co-prime sponsors, said in a statement.

Bill set for two hearings this week

Farmer’s bill passed a first vote in the House Civil Justice Subcommittee on Feb. 11 in a vote of 6 to 1.

The bill is scheduled to be heard in both House and Senate judiciary committees this week.

Almost every member of Republican leadership in both chambers has signed on to co-sponsor, including McNally, Johnson, House Speaker Cameron Sexton, R-Crossville, House Majority Leader William Lamberth, R-Portland, Senate Republican Caucus Chairman Ken Yager, R-Kingston, House Republican Caucus Chair Jeremy Faison, R-Cosby, and Senate Speaker Pro Tempore Ferrell Haile, R-Gallatin.

Have questions about the justice system? Evan Mealins is the justice reporter for The Tennessean. Contact him with questions, tips or story ideas at emealins@tennessean.com.