published Wednesday, August 15th, 2012

Smartt: The Tennessee Disaster

Ammon Smartt

Have you or your business ever been sued? If you have, I’m sure you hired an attorney who gave you legal advice on how to prevail in litigation. Did that advice include ideas like improperly influencing the judge to rule in your favor? I hope not! That would be illegal! Improperly influencing a judge would be a serious violation of due process and likely a criminal act. Judges are supposed to be independent. Justice is blind (think of Lady Justice blindfolded), right?

Recently, Governor Haslam was involuntarily put in an awkward position. He was required by law to appoint a “special” supreme court to hear any potential appeal of a case challenging the constitutionality of the Tennessee Plan, or the plan used in Tennessee to appoint appellate court judges. All five justices of the Supreme Court recused themselves because they got their current jobs under the Tennessee Plan. 

The problem: Governor Haslam is a defendant in the litigation. His administration has an interest in the outcome of the case similar to the five justices who recused themselves. In any other context, this “special” court would not be viewed as independent or capable of hearing the case. How would plaintiffs across the state react if every defendant was able to choose the judge to hear their case years after the controversy began and after the defendant, directly or indirectly, had the opportunity to assess how the judge would rule in the case?

Let me be clear: In appointing a special supreme court, neither Governor Haslam nor the five justices he appointed have done anything wrong under the law. To the contrary, Governor Haslam is doing what the law requires. This conundrum, however, is yet another significant problem the Tennessee Plan has brought to our state. The Tennessee Plan should be called the “Tennessee Disaster.” The legislative adoption of the Tennessee Disaster in the 1970s has introduced all sorts of instability into our legal system. This controversy is just the latest example. 

Almost everyone in current leadership in the legislative and executive branches has publicly acknowledged that there are constitutional problems with the Tennessee Disaster. Some acquiesce and fail to stand up against the Tennessee Disaster because they prefer appointment over election of judges.That is understandable, but there is a right way and a wrong way to change the constitution. The amendment process is the right way. Judicial activism is the wrong way.  The unintended consequences of standing on the sidelines and allowing judges to inject their own policy preferences into the law will be significant for future generations. 

Unfortunately, the problems with the Tennessee Disaster are now systemic, and the only way to fix the problems is to change the system. As this current litigation illustrates, a legislative fix is ideal. 

Fortunately, legislative leaders like state Sen. Brian Kelsey and state Representative John Lundberg, with the support of Governor Haslam, Lieutenant Governor Ron Ramsey, and Speaker of the House Beth Harwell, have proposed a constitutional amendment to adopt a modified federal model of appointment for Tennessee. They should be congratulated for their efforts last legislative session to fix the Tennessee Disaster. 

Our elected representatives and senators must support the modified federal model one more time next year to get the proposed amendment on the ballot. They should be supported in that effort during the next legislative session, or we will all face continued instability and calls for contested elections.       

Chattanooga native Ammon Smartt is a business attorney practicing in Nashville.

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