Independence of the Judiciary By STEVEN J. MULROY, Bredesen Professor of Law, University of Memphis
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eparation of powers is much in the news of late in the Volunteer State. The TBA recently sponsored a CLE on the subject, where I was honored to present alongside former Tennessee Supreme Court Justices (and fellow law professors) Penny White and William Koch.
Why the recent focus? A series of assaults on judicial independence this spring by the General Assembly. Fortunately, these assaults were unsuccessful for the most part. But they should trigger alarm bells among all Tennessee lawyers who care about the separation of powers and the rule of law. Attempted Removal Of A Judge. First came the attempt to remove Davidson County Chancellor Ellen Hobbs Lyle as punishment for ruling against the State in last year’s lawsuit to expand mail voting during the pandemic. [Full disclosure: I served as counsel for the plaintiffs in this lawsuit.] Article VI, Section 6 of the Tennessee Constitution allows the legislature to remove a sitting judge by a two-thirds vote after providing the judge notice of the ‘causes’ for the removal. This language has been interpreted in modern times as providing for removal ‘for cause,’ and not just because the legislature disagrees with a particular decision. Although the Senate ultimately stopped this fit of legislative pique, a majority of the House had initially co-sponsored a resolution to begin the removal process. Automatic Stays & Bans On Local Government Plaintiffs. Next came a bill sponsored by local state senator Brian Kelsey which would have given the State an automatic stay pending “the final outcome of the appeal” whenever a trial court granted preliminary injunctive relief against the State in a constitutional lawsuit. This was also a response to the mail voting lawsuit. This same bill would have permanently barred all local governments from ever bringing a constitutional challenge against the State. This provision was a response to the so-far successful efforts by Shelby County and Metro Nashville to block Tennessee’s latest school voucher bill. (The lawsuit is still pending.) This bill failed on the Senate floor in a 14-14 tie vote. The only trace of it that passed was a provision entitling the State to an interlocutory appeal (but not an automatic stay) in such constitutional cases. 8
“Super Chancery Court.” Finally came a bill which would have created a new statewide Chancery Court which would have exclusive jurisdiction over all constitutional challenges to state action. This three-judge trial court would have one judge from each Grand Division, but all three would be elected in statewide elections. Currently, Chancery Court judges in the state capital hear such challenges. The bill’s sponsor said on the record in committee that the point was to remove authority from ‘liberal’ judges from Davidson County, where they elect only Democrats, and give it to judges who would reflect the overall statewide ideology (i.e., Republican). This bill made significant progress through the committee process until it was eventually watered down. As passed, the three-judge court to hear such constitutional claims would consist of one currently serving trial judge from each Grand Division, all appointed for the occasion by the Tennessee Supreme Court on a case-by-case basis. Rigging The Game, Eroding Judicial Review. All of these came alarmingly close to fruition. They all represent legislative attempts to change the rules of the game, or the players, to protect the State from meaningful judicial review. Take the provision saying that the State always gets a stay pending final appeal. As we all know, the answer in the law is very rarely “Always” or “Never,” but almost always “It depends.” Sometimes, the matter litigated is time-sensitive, and it is necessary to immediately block imminently impending state action to protect the irrevocable violation of constitutional rights.
