Tennessee State Capitol. (Photo: Ray Di Pietro)
Two former Tennessee Supreme Court justices are taking bipartisan shots at General Assembly legislation setting up a three-judge panel to hear constitutional challenges and calling for the governor to veto the plan.
William “Muecke” Barker, a former chief justice who served on the court from 1998 to 2008 after an appointment by Republican Gov. Don Sundquist, and Penny White, appointed by Democratic Gov. Ned McWherter in 1994 until she failed to be retained in 1996, both say the plan adopted by the legislature last week is unworkable, unnecessary and politically motivated.
“I am very, very disappointed that legislation was passed. It just reeked of partisanship. For years and years we’ve had the system that does work,” said Barker, now a Chattanooga attorney.
Likewise, White, a University of Tennessee School of Law professor, believes the plan will cause inefficiency, delay and higher costs.
“If there was a problem, it’s not a well-thought-out way to solve the problem. But there is no problem in my way of seeing,” White said.
Under current law, challenges to the state are filed in Davidson County and heard by its chancellors because the State Capitol is located in Nashville. But Republican legislators and Gov. Bill Lee have been chafing at decisions coming from Davidson County Chancellor Ellen Hobbs Lyle that led to expansion of absentee ballots during the COVID-19 pandemic in 2020 and Davidson County Chancellor Anne Martin’s ruling against the education savings account program.
Lee said Tuesday he is reviewing the legislation and plans to sign it. He did not respond to questions about the concerns raised for the former judges.
Sen. Mike Bell, R-Riceville, sponsored the legislation to create a three-judge statewide chancery court to hear challenges to state law, executive orders, administrative rules and regulations and redistricting cases. He contended for weeks that Tennessee needs viewpoints reflecting the entire state, not the “liberal” voters of Nashville, who elect the Davidson County chancellors.
When Bell’s legislation differed with a House version of the bill that would have set up a new statewide appeals court, House and Senate members held last-minute, closed-door meetings the night the General Assembly adjourned and settled on a watered-down version but one that still changes the legal landscape.
Barker said he listened to Bell’s argument but didn’t agree with it, contending Davidson County’s chancellors are “among the finest” in the state. “They call them liberal and say they’re making decisions that are against the law. That’s just not right.”
He pointed out the Tennessee attorney general is bound to defend the constitutionality of a statute if it is challenged.
“So apparently, they’re saying they don’t trust (Attorney General) Herb Slatery to defend it properly,” Barker added.
The former chief justice also noted the state has an automatic right to appeal to the Tennessee Court of Appeals on any chancery court decision that finds a law unconstitutional. And if the state loses at that level, it has an automatic right to appeal to the Tennessee Supreme Court.
Four of the five justices on the Supreme Court are Republicans, he pointed out.
“So it’s kind of hard for me to believe they have to have a new court system to take care of something I think doesn’t need repair,” he added.
Under the legislation awaiting Lee’s signature, once a challenge is filed in a chancery court, the Supreme Court justice would appoint two other chancellors to ensure the case has chancellors from East, West and Middle Tennessee.
One of those chancellors would be designated as chief judge. And in case of a disagreement, a majority would prevail among the judges.
The panel would sit in the Supreme Court building in the grand division where the case is filed, unless the Supreme Court designates another location. If the plaintiff is from outside Tennessee, the case would be heard in Sumner County, forcing all parties to travel to Gallatin for the procedures.
Despite numerous changes from his original bill, Bell said he is “satisfied” with the outcome. Initially, Lee would have appointed the three chancellors, and they would have been up for statewide elections in 2022, creating three new powerful positions in the state where only the governor and two U.S. senators run statewide.
This led opponents to point out Republican lawmakers would raise a ruckus if President Joe Biden were to create a court and appoint its members.
Bell, however, said the governor will remain heavily involved because most judicial vacancies are filled by gubernatorial appointments.
“We got representation from all three grand divisions,” Bell pointed out, adding the chancellors will be chosen from random. And even though Chancellor Lyle could be on one of those panels, Bell noted she will be joined by chancellors from the state’s other two grand divisions.
Bell said he doesn’t think the House legislation was designed to undermine his bill, either, calling it instead a “different perspective.” The judiciary and the business community lobbied hard against the legislation in the final week of the session.
Rep. Andrew Farmer introduced an amendment two days before the legislature adjourned that would have created a special appeals court to hear constitutional challenges rather than a new statewide chancery court.
House members also might have been leery of creating powerful positions with statewide elections. The potential replay of Alabama Justice Roy Moore, who was removed from the Supreme Court there for refusing to remove a marble monument of the ten commandments, likely filled some lawmakers with dread.
Moore’s populist stances against gay marriage, which drew a suspension from the court in 2016, garnered support across the state. But according to reports he had strong support from the legal community before allegations came from women that he sexually assaulted them at the ages of 14, 16 and 28 when he was in his 30s. Those revelations derailed his run for a U.S. Senate seat.
State Rep. Darren Jernigan of Old Hickory was the lone Democrat serving on a conference committee that hashed out the final agreement and, thus, had little say in its language. He declined to sign the panel’s final report because of concerns about its practicality, expense and the rush to make change in the courts.
“I heard several times, oh, we can fix it next year if that’s a problem. That seemed to be their take. We’re doing this to figure out what the kinks are and we’ll fix it next time around. That just seemed to be the mood,” Jernigan said of his Republican counterparts.
Jernigan pointed out statewide elections would be expensive, likely leading to the election of urban chancellors, not rural judges from places such as Pickett County. Thus, trial lawyers with favorable views of certain judges would be pouring money into campaigns.
“That’s your Roy Moore. That’s your Alabama comes to prominence, and they’ll need money, but that philosophy comes with it,” Jernigan pointed out.
In fact, Rep. Michael Curcio, chairman of the House Criminal Justice Committee and a member of the conference committee, said he never liked the approach of creating three statewide elected chancellors.
Curcio, a Dickson Republican, said he didn’t like the price tag associated with Bell’s bill. The legislature put $2.4 million in the budget to handle creation of the court.
Ultimately, Curcio contends the best plan won, using existing judicial resources “to create an equitable panel” with judges selected from across the state.
“When you’re dealing with statewide issues, you need to have, in my opinion, statewide review of that, and that’s why the three-judge panel’s necessary,” Curcio said.
Curcio, though, balks at the notion such a court would be “unworkable,” since the Supreme Court would select a presiding judge and a majority would decide disagreements. He calls the legislature’s assessment “pretty complete.”
Yet Sen. Jeff Yarbro, a Nashville Democrat who criticized judiciary changes from the outset, said nothing positive will evolve from “this kind of meddling” in the court system. Instead, it will cause a “mess” for judges statewide, said Yarbro, an attorney.
The Supreme Court will be forced to “rush” new rules for these three-judge panels, and chancellors across the state will be asked to take on work they’ve never done, he said.
“It’s less extreme than creating a brand new court, but it’s still going to have a fair bit of collateral damage,” Yarbro said.
From motive to legislative language, the proposal for setting up a new court “was just pure politics,” he added, rather than concern about the “fair and just administration of the courts.”
Still trying to kill it
Chattanooga attorney Lee Davis, who helped spearhead statewide opposition, wants the governor to veto the bill out of concern for “integrity of the courts.” He led a petition drive during the last two weeks to prevent the court overhaul.
“From a process point of view, the whole thing is flawed and it just gives the appearance of a power grab,” Davis said.
Davis and former justices Barker and Smith all believe the new courtroom scenario will cause logistical problems, as well as a nightmare in handling the nuts and bolts of cases. For instance, which judge will rule when an attorney tries to introduce a piece of evidence and the opposing attorney objects? Trial courts have a single judge for a reason, he said, to provide efficiency and predictability.
Appellate courts have multiple judges, to ensure trial court judges handled the case properly, including the finding of facts.
Davis compared the legislation to baseball, saying if the pitcher isn’t throwing strikes, three umpires aren’t placed behind the plate. Rather, a manager will put in a new pitcher who can get batters out.
“The legislature’s upset because a couple of laws got struck down,” Davis said.
The Supreme Court, however, ruled in favor of the state on absentee balloting after it changed its mind on the eve of arguments and is set to rule on the governor’s voucher program.
“The legislature’s response is to say, ‘We don’t like it, so now we want to have three umpires behind home plate.’ Whereas the real answer is stop writing bad laws,” Davis said.
In contrast, Nashville attorney Daniel Horwitz calls the final legislation “a modest change” compared to the first proposal.
“Most constitutional challenges are filed in federal court, and this legislation has no bearing on those challenges,” Horwitz said in a statement. It wouldn’t affect constitutional challenges such as one in Chattanooga involving the Tennessee Public Participation Act, Horwitz said.
Nor would the legislation affect the state’s case involving the fetal heartbeat law, which was put on hold by a U.S. District Court judge almost immediately after the governor signed it in 2020.
Horwitz predicted few cases would fall within the “narrow statutory criteria” set up by the new legislation. The outcome of cases could even be “expedited,” he said, because constitutional claims usually pose legal questions “that are reviewable de novo (meaning anew) by appellate courts without affording deference to a trial court’s ruling.”
He noted that when the state lost constitutional cases before the Davidson County Chancery Court, appellate rulings affirming those decisions were unanimous.
“Ultimately, the Tennessee Supreme Court gets the final say if it wants to weigh in on constitutional challenges filed in state court, and this statute does not change that in any way,” he said.
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