When Tennesseans head out to trick-or-treat this Halloween, they can expect to see all sorts of spooky things. But while most Halloween frights are imaginary, there is one terror that should make all Tennesseans shudder: The Middle Division of the Tennessee Court of Appeals’ increasingly evident unwillingness to check illegal government action.
This problem—little recognized outside of the small circle of Tennessee public interest lawyers who sue the government—is genuinely frightening. In the past few months alone, judges of the Middle Division of the Tennessee Court of Appeals have held that the government can circumvent judicial review of unconstitutional laws by enacting temporary new laws while refusing to disavow enforcement of the challenged ones. The Tennessee Supreme Court has stepped in and granted review. They have also refused review of whether the government can flagrantly, unapologetically, and deliberately violate final court orders. Again, the Tennessee Supreme Court has stepped in and granted review. Most recently, the Middle Division of the Tennessee Court of Appeals held that citizens who are subject to unconstitutional criminal speech restrictions cannot sue to challenge them before being arrested, reasoning—inexplicably—that even the Tennessee Court of Appeals’ own previous enforcement of the same statute in a civil case represented a “wrongful attempt[] to use [the statute] to establish civil liability,” and that a District Attorney sending a criminal threat letter should really be considered a “civil” matter. “Ironically, the statute does not criminalize a favorable but knowingly false statement a candidate makes about himself/herself,” a trio of Middle Division judges quipped while reinstating the unconstitutional criminal speech restriction at issue. What the panel was describing, of course, is called “viewpoint discrimination”—an “egregious form of content discrimination” that should offend the judiciary, rather than amuse it. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). Further review of this similarly baffling government-friendly ruling is forthcoming, too.
What makes the Middle Division’s near-constant refusal to rule against the government when it acts illegally so inexplicable is that nobody else seems to struggle with the issue. The Tennessee Supreme Court does its job of holding the government accountable when it breaks the law. So do federal courts. So do judges from other Divisions of the Tennessee Court of Appeals. So do Tennessee’s trial courts. So, too, does even the Constitution-hating Tennessee General Assembly itself, which recently enacted a law stating that Tennessee’s judiciary must adjudicate claims filed by “any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.” The Middle Division alone, however, is apparently unwilling to do so.
With this context in mind, any couple looking for a last-minute costume idea has one readily available: Illegal government action paired with the Middle Division of the Tennessee Court of Appeals. Nothing in Tennessee today is quite as scary.
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