Legislation creating a so-called super-court to hear constitutional challenges would allow the governor to appoint the three-judge panel and then the attorney general to shift every pending case to the new court, according to an amendment.
Senate Bill 454 is the key piece of legislation moving through the Legislature that could change the landscape of the Tennessee judiciary in response to legal decisions that have confounded Republicans in the last few years. Two other judicial bills were scrapped, likely because they were rendered moot.
Filed by Sen. Mike Bell, R-Riceville, the measure would enable Gov. Bill Lee to pick three chancellors from the state’s three grand divisions using a candidate list put together by the Trial Court Vacancy Commission, according to an amended version of the bill. That body is appointed by the speakers of the House and Senate.
The new judges would start serving Oct. 1 and then face statewide election for an eight-year term in 2022.
The statewide chancery court would have “exclusive original jurisdiction” over any civil case involving constitutional challenges, state statutes, including those that apportion or redistrict state legislative or congressional districts, executive orders, administrative rules or regulations and claims for declaratory judgment or injunctive relief.
The court would be able to hear those cases brought against a state department, agency or state official when the attorney general requests the case be transferred to the court’s jurisdiction.
The Senate Judiciary Committee voted 7-2 Tuesday to send Senate Bill 868 to the Finance, Ways and Means Committee.
Bell, who chairs the committee, argued that Tennessee needs to set up a new method for hearing cases across the state, rather than putting every decision at the trial court level in the hands of Davidson County chancellors.
“Why should judges who are elected by the most liberal constituency in the state … why should they be the ones deciding cases that affect the state in general?” said Bell, arguing judges should reflect the state’s political makeup.
Bell rejected the notion that judges are not political animals and pointed toward several cases that led to his legislation, including a ruling that struck down the governor’s voucher law.
Smarting from legal losses, Republicans lawmakers have introduced several pieces of legislation this year designed to remove decisions from Davidson County courts.
Davidson County Chancellor Anne Martin ruled two years ago that Gov. Bill Lee’s education savings account program was unconstitutional because it violated the state’s Home Rule provision by targeting only Davidson and Shelby counties.
A bill that could have led to the removal of Davidson County Chancellor Ellen Hobbs Lyle for her decisions on absentee balloting in 2020 fell only after an uproar by the judiciary.
Republicans also saw their fetal heartbeat law run into an injunction by a Trump-appointed judge and had their voting registration bill enjoined two years ago. A watered-down version passed in 2020.
Why should judges who are elected by the most liberal constituency in the state. . . why should they be the ones deciding cases that affect the state in general? – Sen. Mike Bell, arguing judges should reflect the state's political makeup. Bell added he isn't trying to make the judiciary nonpartisan.
Democratic members of the committee challenged the legislation.
Sen. Katrina Robinson, a Memphis Democrat, questioned why initial appointments would be made by the governor if the idea is to remove partisanship from the equation. Bell, though, said he isn’t trying to remove partisanship from the judiciary.
The chancery court, which is estimated to cost $1 million for pay and benefits, according to the Tennessee Journal, would sit in Supreme Court chambers in Knoxville, Nashville and Jackson. If a chancellor is recused, the Supreme Court would appoint a replacement from that same grand division.
Candidates for the statewide chancery court would be required to abide by the same election rules as current chancery candidates and would not be able to raise money directly. Instead, they would have to use an intermediary to gather funds.
Rep. John Ray Clemmons, a Nashville Democrat and attorney who opposed the legislation in a House subcommittee, blasted the legislation.
“Gov. Lee and the supermajority have clearly and purposefully decided to remake the judiciary. I hate to break it to them, but their problem isn’t the judges, it’s their unconstitutional legislation,” Clemmons said.
Legislation introduced this year would enable the governor to appoint 10 new judgeships, he noted.
“That is the definition of court-packing – plain and simple,” Clemmons said. “Lawyers and all those who support an independent judiciary, as a co-equal branch of government, should be up in arms with these brazen attacks on our court system.”
Gov. Lee and the supermajority have clearly and purposefully decided to remake the judiciary. I hate to break it to them, but their problem isn't the judges, it's their unconstitutional legislation. – Rep. John Ray Clemmons, D-Nashville
“Judge shopping” alleged
House Bill 1196, sponsored by Rep. Johnny Garrett, R-Goodlettsville, enables plaintiffs who sue the state in a constitutional challenge to file the lawsuit in their home county, instead of Davidson County, where the State Capitol is located. Out-of-state challenges would be filed in Sumner County, just northeast of Nashville.
Critics of the legislation, which passed the House on a 69-21 vote, called the measure “judge shopping” or “forum shopping.”
However, Bell, sponsor of the Senate version, SB454, sent the bill to the general subcommittee on Tuesday, usually a sign the bill is dead for the year. It could be brought back in 2022.
In House debate, Garrett, an attorney, defended the bill, saying, “Although the center of our government is in Nashville, our government is across the great state of Tennessee and not just in Nashville.”
Rep. Mike Stewart, a Nashville Democrat and attorney, questioned whether the legislation is “a response to any particular ruling by a Davidson County court.”
Garrett responded by saying it was stemmed from a call he received at his law practice. He contended a West Tennessee resident should be able to file a legal challenge in his own county “where he was able to elect his own judge.”
Stewart pointed out state law already allows people to file tax cases in their own county yet most large taxpayers choose to bring cases in Davidson County because they understand judges in Nashville have the expertise and experience to handle those types of cases.
Garrett, though, contended tax cases “are not limited to the expertise” of Davidson County judges.
State Rep. David Hawk, R-Greeneville, backed up Garrett, saying a farmer from East Tennessee shouldn’t have to drive to Nashville and spend three days away from the farm working on a legal case against the Tennessee Department of Environment and Conservation.
“I take offense to what’s been said already,” Hawk said, arguing the legislation would give “equal representation” across the state.
Debating the statewide court
House Bill 1130, the companion piece to Bell’s statewide chancery court legislation, made its way out of the Civil Justice Subcommittee last week despite criticism it would replicate the Tennessee Court of Appeals. It is to be heard Wednesday in the House Civil Justice Committee.
“I don’t understand the need for essentially creating a court of appeals at the trial court level. Isn’t this what the court of appeals is for and the very nature of this bill is what the court of appeals does following the trial court?” Clemmons said in subcommittee debate.
Rep. Andrew Farmer, a Sevierville Republican who chairs the subcommittee, defended the bill he’s sponsoring, saying the new court is not designed to be a court of appeals, even if it operates similarly.
“We’re not taking or trying to usurp any authority or power from our current court of appeals,” Farmer said. “The idea is to set up a statewide court that would represent fairly the eastern, the middle and western portions of our state as a whole instead of having one portion of our state hearing something.”
Rep. Michael Curcio, R-Dickson, pushed House Bill 1436 to passage on a 68-24 vote, claiming it will allow Tennessee to respond to a U.S. Supreme Court decision dealing with gerrymandering, the practice of drawing legislative district lines to benefit one political party.
Curcio’s bill would set up a new panel of judges to handle gerrymandering cases as Tennessee prepares to set new district lines in 2022 for legislative and congressional districts.
House Minority Leader Karen Camper, D-Memphis, balked at the need to set up a new judicial panel. Democrats have been pushing for an independent commission to handle redistricting, which is done every 10 years once federal Census figures are finished.
Curcio responded, “If we are challenged for a partisan, gerrymandering claim, we’re getting ahead of that issue.”
Bell, sponsor of the Senate version, SB1363, sent that measure to general subcommittee as well, meaning it is likely dead for the year. It could be recalled.