Former chief justice says judicial bill raises questions

The Tennessee State Capitol with gates locked.
The Tennessee State Capitol with gates locked. (Photo: John Partipilo)

Former Tennessee Supreme Court Chief Justice William Koch is scratching his head over legislation enabling the state to bypass court injunctions for laws facing constitutional challenges.

“I’m not exactly sure what the statute is designed to fix,” Koch said, the day after the House passed a bill that would ensure state laws take effect even if a legal challenge is filed and regardless of a court stay or injunction – until the case is resolved by the Supreme Court.

William C. "Bill" Koch, Jr., dean, Nashville School of Law (Photo: tncourts.gov)
William C. “Bill” Koch, Jr., dean, Nashville School of Law and former Justice of the Tennessee Supreme Court (Photo: tncourts.gov)

Under current law, the state can make what is called an interlocutory appeal if a judge places an injunction on a state law involved in a constitutional challenge.

“What this (bill) does is say there is an automatic stay,” Koch said. In essence, he said, the legislation “takes the judges out of the equation.”

“I think there is some question about the validity since the amendment appears to be telling courts how to try cases,” said Koch, now president and dean of the Nashville School of Law.

Koch spoke to a legislative panel last fall on the governor’s authority during a state of emergency and again this year when he opposed legislation that could have led to removal of Davidson County Chancellor Ellen Hobbs Lyle for her rulings last year requiring the state to expand absentee balloting during the COVID-19 pandemic.

A day after the House passed its bill and the Senate turned down an amendment that would have prohibited local governments from filing lawsuits against the state, Koch said the legislation could “violate the separation of powers.” He further noted it seems to be a search for a remedy “when it’s unclear why they need it.”

Koch added that state appeals courts still could lift a stay of a lower court’s injunction until the case is resolved.

Republican lawmakers have been chafing this session over Lyle’s decisions and other court rulings that dealt setbacks to their legislation, including the fetal heartbeat bill passed in 2020, and filed bills to change the legal landscape.

Asked about the spate of legislation Tuesday, Gov. Bill Lee said, “I think what is of concern across the country and including Tennessee are activist judges who actually are trying to legislate from the bench. I think that’s the move we are seeing here, is a desire to, in fact, have an independent judiciary that is not an activist judiciary.”

The governor declined to say whether he believes judges are legislating from the bench here and refused to answer when specific cases were mentioned during a press conference.

Sen. Brian Kelsey, R-Germantown, is set to bring a revamped amendment Wednesday morning to the Senate floor after his Monday evening defeat. In a 14-14 vote, senators rejected his amendment to stop local governments from suing the state, as some members said legal action is the only method for cities and counties to seek changes in state policy affecting their residents and taxpayers.

William Koch, former Chief Justice of the Tennessee Supreme Court and current dean of the Nashville School of Law, says pending legislation to remake the state’s judiciary could “violate the separation of powers” and “takes judges out the equation.”

Republican lawmakers have been trying to shift the judiciary this session, in part because of decisions by Chancellor Lyle last fall. One piece of legislation that was turned back in committee would have enabled the Legislature to study Lyle’s rulings and potentially remove her from the bench.

Legislation also is moving through the Legislature to create a so-called super-chancery court made up of three chancellors – initially appointed by the governor – to take up constitutional challenges to the state. The three chancellors would go up for statewide re-election after one year.

The measures voted on Monday night would cut the legs from under local governments filing lawsuits against the state. They would not affect current litigation but would set the tone to keep cities and counties from taking further legal action against the state.

Lawmakers are irritated by litigation filed by Metro Nashville Public Schools and Shelby County Schools over education funding. The governor has been irked for two years by litigation stopping his education savings account program from taking effect. It is to be heard by the Tennessee Supreme Court.

State Rep. John Ray Clemmons pointed out during the House floor debate Monday night that two legal procedures are available for the state to seek a stay of court injunctions enabling state laws to take effect while a case is being decided. Yet the state opted not to seek either of those last fall in the case dealing with absentee balloting, he said.

At least one Republican lawmaker pointed out the state could start spending money on an unconstitutional law or program until the outcome is decided by the highest court.

But the bill’s sponsor, Rep. Michael Curcio, contended the laws the Legislature passes “are presumed to be constitutional.”

“If a court of final jurisdiction presumes it is unconstitutional, then game over,” said Curcio, R-Dickson.