Tennessee GOP measure to oust Nashville judge fails

A resolution to remove Davidson County Chancellor Ellen Hobbs Lyle over her ruling last year to expand absentee voting during the pandemic is dead after the measure failed to clear a necessary House subcommittee.

Republican lawmakers targeted Lyle over her ruling that fear of COVID-19 was an adequate reason to request an absentee ballot. The resolution’s lead sponsor, state Rep. Tim Rudd, R-Murfreesboro, said Lyle “attempted to disregard state law and implement her own rules, personal opinions and policies that were in direct contradiction of existing state law.”

The legislation, which would have enabled state Speaker Cameron Sexton to appoint a committee to consider removing Lyle, failed to advance in the House civil justice subcommittee. A companion resolution was filed last week in the Senate by Sen. Frank Niceley.

The prospect of removing Lyle was strongly opposed by the legal community as well as Democrats. The Nashville and Tennessee bar associations came out in full-throttle opposition, and a statewide Committee for an Independent Judiciary, led by some of Tennessee’s most recognized attorneys, launched last week in response to Rudd’s proposal.

Rudd asked the subcommittee to postpone hearing the legislation until later in the session, arguing that a proponent seeking to testify in support, conservative activist David Fowler, could not appear because his wife was in the hospital for surgery.

Subcommittee chairman Rep. Andrew Farmer, R-Sevierville, allowed the legislation to be considered after hearing from experts who opposed the resolution. Rep. Bruce Griffey, R-Paris, asked for a roll call after Farmer ruled the resolution failed on a voice vote by the committee members.

Rudd reportedly called subcommittee Chairman Andrew Farmer “a disgrace” when the meeting convened and even bumped a reporter standing between them.

“Members get … very passionate about their legislation and sometimes I think that kind of overrides and may have spilled over today with Rep. Rudd. I know he worked hard, and I know he cared about this piece of legislation,” Farmer said, noting he did not respond to Rudd’s anger.

Rudd’s resolution failed on a voice vote, and Farmer said he detected only two members who supported it. Rep. Bruce Griffey, a Paris Republican, tried to call for a roll-call vote, but Farmer said the rules require the resolution’s sponsor to request such a count when introducing the bill in the subcommittee.

Rudd tried to request the bill’s consideration be postponed until next week. But one member had called for the question on the issue, and Farmer, a Sevierville Republican, allowed the voice vote, which apparently sparked Rudd’s temper. 

The subcommittee included two Republicans who didn’t sign on as co-sponsors of the Rudd’s measure, Reps. Michael Curcio of Dickson and Johnny Garrett of Goodlettsville, as well as Democratic Reps. Antonio Parkinson of Memphis and John Ray Clemmons of Nashville. Garrett, an attorney, said he abstained from the vote because of his profession.

Farmer signed on as a co-sponsor but ultimately opposed the legislation, especially after hearing testimony against the bill. He said the subcommittee’s direction was clear.

“If we’d moved that forward, I think we would have set bad precedent,” Farmer said. “I think that through the testimony we heard, that mechanisms set up for something very heinous, some arbitrary ruling, something very criminal.”

On a scale of 1-10, Farmer said he didn’t think Lyle’s rulings on the absentee ballot lawsuit would have “measured at all.”

Among those appearing in opposition to the resolution were Knoxville attorney Celeste Herbert, who detailed Lyle’s long legal career including her 25-plus years on the bench for Nashville’s Chancery Court. Lyle was appointed to the bench by Republican Gov. Don Sundquist, and tabbed by the Republican-majority Supreme Court in 2015 to preside over a first-of-its-kind business court in Nashville. Herbert called Lyle one of the smartest people she knows.

The Davidson County Chancery Court is where administrative lawsuits, and cases related to constitutionality of recently passed laws are considered. Because Republicans control the governor’s office and lay claim to a super majority in the House and Senate, the Davidson County Chancery Court has served as a check and balance on state government, according to the court’s proponents.

The Supreme Court reversed a critical portion of Lyle’s ruling allowing all voters afraid of contracting COVID-19 to ask for and be granted an absentee ballot. But another component of her ruling, which allowed voters with pre-existing conditions making them prone to the virus and their caretakers to vote absentee, was rendered moot when the state flip-flopped on its argument to Lyle and said it would not block those voters from voting absentee.

“Ellen has served this state with distinction,” Herbert said. “She is one of the top trial judges in this state.”

The issue of expanding voting by mail during the pandemic was considered in state legislatures and courts across the country. Tennessee was one of five states not to allow all voters to vote by mail for the November election.

“This alarming resolution serves as a reminder of the importance of protecting our state’s independent judiciary for the benefit of all of our citizens,” the Committee for an Independent Judiciary co-founders said in a joint statement following the subcommittee hearing. “In a matter of days, over 750 citizens joined forces to form the Committee for an Independent Judiciary and combat this assault on the balance of power in Tennessee.

“We are grateful for the committee’s members and are also bolstered by the Civil Justice Subcommittee’s thoughtful consideration, from all sides, and we believe wise judgment not to pass this resolution. This grassroots committee will continue on the path of educating Tennesseans as to why an independent judiciary upholds us all.”