Independence of the Judiciary

By STEVEN J. MULROY, Bredesen Professor of Law, University of Memphis

Separation 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.

“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.

The mail voting case is a good example. Judge Lyle ordered expanded mail voting in early June. Had the Kelsey provision been in place, that order would have been suspended. By the time the appellate process wound up through final appeal, it would have been too late for the August election. (And though the Tennessee Supreme Court did ultimately scale back Judge Lyle’s order expanding mail voting eligibility, it kept in place the bulk of it. Mail voting continued to be expanded through November to anyone medically vulnerable to COVID or those residing with them, which amounted to well over two-thirds of Tennessee voters.)

The ban on local government lawsuits is another bad use of “Never.” Sometimes, only a local government will have standing to bring a constitutional challenge. Other times, only a local government can avoid costly, protracted disputes regarding standing, or marshal the resources necessary for an effective challenge.

The “Super Chancery Court” idea is even worse. Aside from the blatant politicization of the judiciary, the use of statewide elections would have meant that only the independently wealthy, or those indebted to deep-pocketed special interest groups, would be able to afford the exorbitant costs of a statewide campaign. Constitutional decision-making paid for by Charles Koch, or George Soros? Pick your poison.

Perhaps the most blatant assault on the separation of powers was the attempt to remove Judge Lyle. Even though unsuccessful, the mere attempt to do so creates a chilling effect on judges throughout Tennessee. They have all got to be looking over their shoulder now: in constitutional cases, they rule against the State at their peril.

The Special Role Of Lawyers. As attorneys, we have a special duty to sound the alarm about such tampering with the rule of law. This means both the ‘outside game’ of public statements, op-eds, and the like, and the ‘inside game’ of calling key decisionmakers.

This past spring, we had both. Prominent lawyers and former judges called legislators and the governor’s office to oppose all these measures. The Memphis Bar Association commendably took strong public stands against all of them as well. And bar associations across the state came to Judge Lyle’s defense.

But some bar associations declined to intervene on the other bills, either because of divided opinion, a fear of seeming too partisan, or both.

This is shortsighted. Every one of these bills was a clear attempt to unfairly tilt the scales of justice toward the State and away from the individual rights that it is the judiciary’s unique role to protect. This should be a concern to all lawyers—Democratic, Republican, liberal, or conservative. This skewing effect is often opaque to the general public. It is up to lawyers to make it transparent.

This is a lesson we have to learn going forward, for we have not seen the last of these efforts to skew the court system. 

Steve Mulroy is a University of Memphis law professor, a former Shelby County Commissioner, and a board member of the Memphis Bar Association.

Mid-South Immigration Advocates (MIA) received a grant from the Memphis Bar Foundation for its Survivors' Project Expense Fund protecting victims of domestic abuse, sexual assault, and other violent crime. Learn more about how MIA empowers immigrant communities by helping people obtain economic security, maintain family unity, and escape violence in this video.