THE BATTLE OF THE BRANCHES:
TENNESSEE’S NEW “SPECIAL CHANCERY COURTS” What happens when the legislature doesn’t like the judiciary’s interpretation of a statute? Sometimes, nothing. But sometimes, the legislature passes a law that legislatively overrules the offending judicial ruling. The Lilly Ledbetter Fair Pay Act of 2009 is one example.1 Even when the judicial branch declares a statute unconstitutional, the legislature usually tweaks the offending statute in an effort to address the constitutional deficiencies. For example, when the U.S. Supreme Court declared the death penalty unconstitutional in 1972 and then reinstated it four years later, state legislatures rapidly rewrote their statutes to comply with the Court’s requirements. In Tennessee, however, the General Assembly has found a novel way to express its disagreement with recent judicial rulings: create a special judicial body to consider constitutional challenges to statutes involving state defendants. On May 26, 2021, Governor Bill Lee signed into law Public Chapter No. 566, which set forth a process for establishing “Special Chancery Courts” that became effective July 1.2 Because of their unorthodox nature and the fact that the legislation establishing them went through several iterations prior to passage, Tennessee lawyers are asking, quite reasonably, how the new courts are structured and what exactly they will do. Impetus for the Legislation The genesis of the Special Chancery Courts can be found in a couple of recent decisions by courts in Davidson County. In 2019, the General Assembly passed legislation creating an education savings account, or “school voucher” program. Under the program, individual students could choose to receive their pro rata share of the tax dollars that would otherwise be paid to their public school and use these funds to pay tuition at private schools.3 Notably, the school voucher program applied only to students in Davidson and Shelby Counties. The statute was immediately challenged by those two counties as violating the “home rule” provision of the Tennessee Constitution, which provides: any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.4 After an expedited hearing, on May 14, 2020, Davidson County Chancellor Anne C. Martin held the school voucher program
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unconstitutional and granted an interlocutory appeal to the Tennessee Court of Appeals.5 On September 29, 2020, the Court of Appeals affirmed.6 In another judicial outcome that displeased some members of the General Assembly’s majority party, on June 4, 2020, Davidson County Chancellor Ellen Hobbs Lyle ruled that Tennessee must allow all eligible voters to vote by absentee ballot due to the COVID-19 pandemic. This ruling expanded the statutory scope of absentee voting, which required that the voter meet one of 14 requirements. Chancellor Lyle held that enforcing these requirements during the pandemic constituted “an unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.”7 The Tennessee Supreme Court would later vacate the temporary injunction that had been issued by Chancellor Lyle.8 Stung by these decisions, the General Assembly initiated three separate legislative initiatives during its 2021 session that were designed to insulate its statutes from judicial meddling. First was a bill allowing the state an interlocutory appeal as of right from a trial court’s decision holding a statute unconstitutional that “[g]rants, continues, or modifies an injunction . . . or [d]enies a motion to dissolve or modify an injunction.”9 At the same time, House Resolution 23 was filed, which took the more direct approach of urging the General Assembly to remove Chancellor Lyle from office.10 After vocal opposition by state and local bar associations, 11 this expression of legislative pique died in committee. The Three-Judge Panels The third bill eventually became Public Chapter No. 566. It provides that a civil action that (a) challenges the constitutionality of a statute, executive order, or administrative regulation, (b) seeks declaratory or injunctive relief, and (c) is brought against “the state, a state department or agency, or a state official acting in their official capacity” shall be heard by a “three judge panel” rather than a single trial judge. The Act provides that, when such an action is filed, the plaintiff shall notify the presiding judge of the district, who shall notify the Tennessee Supreme Court, which then shall appoint two judges – one from each of the other two Grand Divisions – to sit with the original trial judge.12 The Supreme Court shall designate one of the judges to serve as the chief judge, and rulings shall be by majority vote. Appeals from decisions of the three-judge panel shall lie in the Court of Appeals. Venue for such actions is the county where the plaintiff resides or, in multiple plaintiff cases, where any plaintiff resides. If the plaintiff is from out of state, venue lies in Sumner County.13 Therefore, the Davidson
DICTA
August 2021
