Tennessee Attorney General Opines on Constitution’s “Open Courts” Provision

Article 1, Section 17of the Tennessee Constitution provides that " all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”  

The Tennessee Attorney General was asked to opinion whether legislation which set a significant surety bond contest the licensure of equine slaughter facilities would likely be held unconstitutional under Tennessee’s Open Courts Clause.  In Opinion 12-44, the Attorney General concluded that imposition of such a bond would likely violate the Open Courts Clause.

The Attorney General said as follows:

The constitutional guarantee of access to courts forecloses unreasonable and arbitrary barriers to a citizen utilizing the courts to reconcile disputes.  Here HB3619 conditions a proceeding to contest licensure upon a party posting a substantial bond, equal to 20% of the estimated cost of building the facility or the operational costs of an existing facility.  Such a bond could easily equal or exceed hundreds 

of thousands of dollars.  Should a party fail to post such a bond, the court is obligated to dismiss the action.  HB3619 provides no means to challenge the licensure of an equine slaughter or processing facility except by posting the bond requirement.  While HB3619 provides that indigent parties may have the bond waived, the bond’s effect upon non-indigent parties with legitimate legal claims would be chilling.  Such a prohibitive requirement would deter citizens from pursuing litigation to contest licensure of these type of facilities, and indeed the large amount of the bond seems to reinforce the perception that the bond’s primary purpose is to discourage litigation opposing licensure.