Judicial departmentalism in Tennessee (Updated)

In June, a judge in the Western District of Tennessee declared the state's drag-show ban constitutionally invalid and enjoined the Shelby County D.A. from enforcing the law. The D.A. of Blount County, located in the Eastern District of Tennessee, announced intent to enforce the law there with the help of police, including against the organizers and hosts of an upcoming pride event. Organizers of the upcoming event and a drag performer sued local officials and the state A.G. Chris Geidner and FIRE are dismissive of and outraged by the actions of the Blount County officials.

Update: A judge in the Eastern District issued a TRO that includes prohibiting defendants from interfering with Blount Pride Fest, scheduled for Saturday. More below.

Let's break this out.

On the surface, this is an easy case, without full-bore judicial departmentalism. The W.D. Ky. order "ENJOINS District Attorney Steven J. Mulroy from enforcing the AEA within his jurisdiction in SHELBY COUNTY, TENNESSEE." The Blount County prosecutor was not a party to that case and not bound by the injunction. Nor should he be bound by the declaratory judgment, which declares the rights of "the parties." Accepting that non-judicial actors must adhere to judicial precedent (i.e., rejecting departmentalism in favor of judicial supremacy), district court opinions do not establish binding precedent, within the district and certainly not outside the district. The district court's declared the law invalid in general. But the law of precedent dictates the effect of its declaration beyond the parties; the law of precedent says district court decisions are persuasive on other courts. There is no good argument that a district court opinion should have greater effect on executive officials than on other courts. And in a judicial-departmentalist world (where judicial precedent does not bind non-judicial actors), the fact that the precedent comes from an out-of-district trial court means the Blount County DA does not even face the guaranteed judicial loss (and attorney's fees) as if he pursued new enforcement in the face of binding judicial precedent.

On the surface, things are proceeding as they should. One group of rights-holders successfully sued to stop enforcement by one official against them; a second executive official pursued enforcement against a second group of rights-holders; the second group of rights-holders sues the second executive and raises the same (strong) constitutional arguments, including pointing to the prior district court opinion as persuasive authority; and we see what happens. My guess is they would get a TRO or preliminary injunction allowing this weekend's event to occur, have the law declared invalid (because First Amendment law is clear, even without the prior district court opinion on this law), and recover attorney's fees.

Here is where the case gets complex. Blount Pride, the plaintiffs in the second action, argue (¶¶ 85-90 in the Complaint) that the Blount County DA and all state executive officials are bound by the prior DJ. They argue that county DA's act as the state in enforcing state laws, thus the DJ against the Shelby County DA binds all state officials who enforce this law on behalf of the state--the AG (who litigated the first case, although not named as a party) and every county DA. Although they do not specify, I think they are using this for a preclusion argument.

But the scope-of-judgment problem is not about the defendants bound in the first case--it is about the plaintiffs protected in the second case. The first action declared the rights of and protected that plaintiff, Friends of Georges. Although the injunction used typically sloppy language, we know that DJ's declare the rights of "the parties" and injunctions should extend no further than necessary to protect the plaintiff--again, so long the plaintiff (and its members*) are protected, the injunction goes no further. The plaintiffs thus argue that the prior DJ as to Friends of George dictates to every official who enforces the anti-drag law that it is constitutionally invalid and cannot be enforced against Blount Pride.

[*] See also Michael Morley and Andrew Hessick's forthcoming piece arguing against associational standing.

This argument fails on three points:

    1) If Blount Pride believes it is protected by the existing WD Tenn. judgment, its move should be to return to that court for further relief where the DJ has been ignored. My guess is Blount Pride knows its rights had not been declared.

    2) Given # 1, this lawsuit attempts to use non-mutual preclusion--a new plaintiff, not party to the prior case, using preclusion against a prior party. But governments (and government officials sued in their official capacities) are not subject to non-mutual preclusion.

    3) The preclusion argument ignores Doran--"[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute." That is this case. The prior DJ and injunction stops enforcement of the anti-drag law "with respect to" Friends of George and its members; it cannot directly interfere with enforcement of the anti-drag law against anyone else, such as Blount Pride. Even if every DA and the AG were parties to the first case, that judgment has no direct effect on the efforts to enforce the law against new individuals.

Michael Dorf wrote a post considering what it means to say § 3 is self-executing:

However--and this is an obvious but crucial point--that does not mean that it is literally self-executing. State and local election officials who attempt to place Donald Trump's name on a primary or general election ballot will not find their hands stayed by a mysterious force field or a lightning bolt.

Section 3 is self-executing in the way that other self-executing provisions of law are, not in the way that laws of nature are. To say that Section 3 is self-executing is to say only that government officials can and indeed must give it effect even absent implementing legislation.

I would add that effect will be given when disputes--likely multiple disputes--over attempted application reach court for the court to resolve.

We can say the same about the First Amendment. No mysterious force field or lightning bolt stops the Blount County DA from attempting to enforce the anti-drag law, even if the First Amendment protects drag performance. When the DA and a drag performer dispute whether the law is valid, the case must move to court to resolve that particular dispute. That is what happened when Friends of George disputed with the Shelby County DA. It now happens separately when Blount Pride disputes with the Blount County DA.

Again, things in Tennessee are playing as they should within the judiciary--certainly if you are a judicial departmentalist and even if you are a judicial supremacist. Adjudicating constitutional rights requires litigation. That process is long and cumbersome and not as clean as the First Amendment "protects your right to dress and perform in drag" and "First Amendment protections apply everywhere." But it gets where we are supposed to be.

Update: Two words on the new TRO. First, as always, the court overdid the order, prohibiting defendants from "enforcing, detaining, arresting, or seeking warrants or taking any other action to enforce or threaten to enforce T.C.A. § 7-51-1407 pending further order of this Court," without limitation to the plaintiffs (the festival organizers and one drag performer). This is not a class action and such breadth is not necessary to protect these plaintiffs.* Second, the court in no way believed that the prior district court opinion controlled. The court called the opinion "well-written, scrupulously researched, and highly persuasive," "well-reasoned," providing "an adequate basis for [a] decision," and reflected the analysis "the Court is likely to adopt" in this case. But--contrary to plaintiffs' arguments and shouts from FIRE, Geidner, and others--defendants' enforcement threats did not violate or ignore that order, nor did defendants do anything a priori wrong in threatening enforcement.

[*] A few years ago, I spoke (with Suzette Malveaux) to the National Association of Attorneys General about universal injunctions. A point I thought of, but did not get a chance to make, is that they, among all litigants, should be circumspect on this. While they may love universality when suing the federal government, universality could and would come back to bite them as defendants in challenges to state law. That point, unmade, stands.