House, Senate approve opposing court plans to hear redistricting, constitutional challenges

Members of the Tennessee General Assembly on the floor of the House of Representatives. (Photo: John Partipilo)
Members of the Tennessee General Assembly on the floor of the House of Representatives. (Photo: John Partipilo)

Republicans say it’s necessary to move statewide legal decisions out of Davidson County. Democrats contend it is “sausage making” and “court packing” at its worst.

Either way, the House voted 68-23 to create a three-member statewide appellate court – to be appointed by the governor – to hear redistricting cases and constitutional challenges to state law.

“What we started with here was rotten meat to begin with, and now we’ve amended it to make it worse,” said Rep. John Ray Clemmons, a Nashville Democrat.

The measure the House approved is markedly different than the Senate version, and unless the House concurs, the matter could go to a conference committee to hash out the difference. Lawmakers are trying to wrap up the final day of the 112th General Assembly’s first year, but it was unclear whether they could do all of their work Wednesday or would have to come back Thursday before adjourning.

Democrats roundly bashed GOP legislation creating a new court with judges appointed by Gov. Bill Lee, saying it creates “bigger government.” They also noted that House Republicans should support President Joe Biden’s plan to increase the size of the Supreme Court if it backs this measure.

Clemmons argued the Republican-controlled House is trying to reinvent the judicial system to get better outcomes. Republican leaders have been seething since Davidson County Chancellor Ellen Hobbs Lyle ruled against the state last year and ordered wider access to absentee ballots amid the COVID-19 pandemic. 

Ultimately, the Supreme Court overruled Lyle but only after the state changed its stance at the last minute and agreed to let people with underlying health concerns and their caregivers vote absentee in the 2020 election cycle.

Rep. Andrew Farmer, a Sevierville Republican sponsoring HB1130, countered saying the measure would spread decisions across the state in its three grand divisions.

“This would bring a sense of equity throughout the state,” Farmer said. “Instead of having one portion of the state or one individual making determinations, this is going to spread it out on the eastern, middle and western districts where the expectation of values will be aligned with the whole state.”

The governor would appoint the three members who would then face retention elections for eight-year terms after serving one year.

Earlier, Rep. Michael Curcio, a Dickson Republican, backed Farmer, saying, “We don’t need a chancellor in one specific part of the state making a decision that impacts the entire state.”

Democrats roundly bashed the legislation, saying it creates “bigger government.” They also noted that House Republicans should support President Joe Biden’s plan to increase the size of the Supreme Court if it backs this measure.

The Legislature has already approved $2.4 million in the next fiscal budget to pay for personnel to serve and work in the court, whether it’s a chancery or appellate court.

Rep. Michael Curcio, R-Dickson (Photo: Tennessee General Assembly)
Rep. Michael Curcio, R-Dickson (Photo: Tennessee General Assembly)

  We don't need a chancellor in one specific part of the state making a decision that impacts the entire state.   – Rep. Michael Curcio, R-Dickson on creation of a new court. Constitutional cases are currently heard in Nashville as it is the state capital.

Senate legislation that passed Wednesday would create a statewide chancery court whose members would be appointed by the governor and elected statewide in competitive races.

Sen. John Stevens, a Huntingdon Republican and attorney, contended judges are elected to the bench with specific demeanors and philosophies, and at the trial court level, those affect the finding of facts that can follow cases through the Supreme Court.

“It’s been commented that perhaps it’s undemocratic to have the entire citizenry of Tennessee,” Stevens said, to elect judges rather than just the voters of Davidson County where constitutional challenges go to Chancery Court. He disagreed.

Earlier, Democratic Sen. Heidi Campbell of Nashville called the legislation part of a “consistent trend” against democracy. She also complained that it would turn the judiciary into a “partisan body.”

Senate Minority Leader Jeff Yarbro of Nashville said the legislation is unnecessary and warned senators it would become a “political court” set up because of a “string of cases” the state has lost.

Sen. Jeff Yarbro, D-Nashville: "Every person here could be a litigant." (Photo: John Partipilo)
Sen. Jeff Yarbro, D-Nashville: “The person who is going to handpick this brand new court is effectively one of the litigants.” (Photo: John Partipilo)

“Now we’re going to start a brand new court with brand new judges and the person who is going to handpick this brand new court is effectively one of the litigants,” Yarbro said of the governor.

The Senate version was to go back to the House Wednesday evening to determine whether it would concur.

Kelsey passes judicial amendment

After running into rejection of legislation prohibiting cities and counties from suing the state, Sen. Brian Kelsey, R-Germantown, found an amendment Wednesday that garnered a 17-10 favorable vote.

His new amendment would enable the state attorney general to file appeals automatically if a court grants an injunction against a state statute. Kelsey said the amendment is supported by several groups, including the Tennessee Municipal League and Farm Bureau.

“This speeds up the process,” Kelsey told senators.

Yarbro pointed out the new amendment isn’t as objectionable as the original measure. But he raised opposition, saying it gives the state an advantage over citizens who challenge state law.

“Court’s one of those places where every person should be equal,” Yarbro said.

The House version of the bill, HB1072, which has already been approved, would allow state laws to take effect even if a chancellor places a restraining order or injunction on the new statute.

Under Kelsey’s version, the AG would be able to seek an immediate appeal of a chancellor’s injunction. He noted the Court of Appeals would be required to hear the appeal.

Stevens, who supported the bill, said the legislation would allow the matter to be heard and resolved “rather than being left in a lurch.”

The Senate version of the bill will have to go back to the House for concurrence.