Thoughts in a Haystack

Via the blog of Americans United for Separation of Church and State, comes news of the latest candidate for the country's stupidest state legislator.

That would be state Sen. Randy McNally (guess which party) who has "crafted" SB 0965, which requires that "certain administrative-type procedures be followed prior to a person filing a suit against a local government or governmental unit based on a violation of the establishment clause." Specifically, the claimant must:

... at least 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 must provide written notice of the potential claim to the local government unit or local public servant whom the claimant intends to name as a defendant.

Then the government has 60 days to respond to the claimant and state that (1) action will be altered to bring the local government into compliance with the establishment clause; (2) the local government challenges or rebuts the claim; (3) state that the violation that have been corrected to comply with the establishment clause; or (4) that the alleged violation is the same as a previous allegation that was determined not to be a violation.

If the local government takes option (1), it then has 120 days to implement the change. If it doesn't act at all, then suit can be brought. If the claimant believes that whatever action has been taken does not correct the violation, then s/he must sent another notice stating why the claimant believes the action taken fails to correct the alleged violation (isn't this fun?) and wait another 30 days before filing suit.

Then get this:

If a claimant files an establishment clause claim prior to the expiration of the 120-day period, or otherwise fails to comply with the requirements of this bill, the claimant will not be entitled to receive, and the court will order the claimant to pay, any litigation expenses, including attorney's fees, discretionary costs, and other costs.

Don't make a mistake negotiating this labyrinth or the government can recover all its costs against you!

It gets worse, the Tennessee state legislature is trying to impose these limitations on the Federal courts:

Under this bill, any claimant or claimant's attorney filing an establishment clause claim in any state or federal court of this state that names any local government unit or local public servant as a defendant must:

(1) File an affidavit with the claim certifying that the claimant or the claimant's attorney has provided notice prior to filing the establishment clause claim as required by this bill (described above); and

(2) Attach the following documentation to the affidavit:

(A) A list of all lawsuits alleging violations of that portion of the first amendment to the United States constitution that prohibits laws respecting an establishment of religion, or article 1, section 3 of the constitution of Tennessee, or both, previously filed by the claimant and the claimant's attorney against other local government units or local public servants in this state within the previous 24 months, which must set forth the final disposition of these prior lawsuits, and if dismissed, the grounds for the dismissal; and

(B) Evidence establishing compliance with the written notice requirement.

This kind of law is known as a "notice of claim" statute, a requirement that is in common use (though not nearly so Byzantine in application) in cases against state and local governments involving personal or property damage. The Supreme Court has already addressed whether states can impose a requirement, in order to bring suit to enforce constitutional rights, to notify local governments of the violation and then wait a period for to give the governmental entity an opportunity to correct it. In Felder v. Casey, 487 U.S. 131 (1988), the Court held that, even in cases brought in state courts, states cannot impose such a limitation:

[T]he notice provision operates, in part, as an exhaustion requirement by forcing claimants to seek satisfaction in the first instance from the governmental defendant. Congress never intended that those injured by governmental wrongdoers could be required, as a condition of recovery, to submit their claims to the government responsible for their injuries. ...

... States retain the authority to prescribe the rules and procedures governing suits in their courts. That authority does not extend so far as to permit States to place conditions on the vindication of a federal right. Congress meant to provide individuals immediate access to the federal courts, and did not contemplate that those who sought to vindicate their federal rights in state courts could be required to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries.

If state laws cannot impose notice of claim requirements on actions brought its own courts, it follows, even more clearly, that they cannot impose such limitations on cases brought in Federal courts.

But they're not finished yet:

Under this bill, a person commits an offense who intentionally, without or prior to the filing of a complaint, lawsuit, or other legal action in any federal or state court of this state communicates, in writing or by electronic communication, with a local government unit or local public servant in a 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) Intends the communication to be a threat of initiating legal action against the local government 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

(2) Makes a threat within the communication to initiate legal action against the local government or local public servant challenging the policy, practice, action or custom.

Umm, guys ... in case you haven't noticed, you've just made it a crime to provide the notice of claim you prescribed above (remember, if the local government says it will correct the violation but doesn't, you have to send a second, repetitious notice of claim!). Gee, requiring someone to commit a crime in order to bring suit against a government for violations of civil rights might just constitute a civil rights violation in and of itself, dontcha think?

Then there could be the little matter of the part of the First Amendment that prohibits abridging the right of the people peaceably to petition the Government for a redress of grievances, which certainly includes the right to inform the government that you will take all legal steps to enforce your rights.
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Update: Opps! I missed the provision at the very bottom that says: "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."