A resolution designed to remove Chancellor Ellen Hobbs Lyle from the bench may have died, but other legislation is pending that could move cases against the state out of Davidson County into more conservative parts of Tennessee.
Cases against the state of Tennessee are filed in Davidson County courts because the State Capitol is located in Nashville.
But state Sen. Mike Bell, a Riceville Republican from southeast Tennessee, said Wednesday he is planning to introduce legislation that would move cases against the state to different judicial jurisdictions, either surrounding counties or into one of the state's three grand divisions. He also mentioned the possibility of setting up judicial panels to hear those cases.
The bill's language isn't settled yet, but it could involve any challenge of state law, not just constitutional challenges, Bell said. He noted this legislation came up before the latest situation involving Lyle, who was targeted by a resolution that could have led to her removal because some state lawmakers disagreed with her 2020 rulings on expanding absentee balloting during the COVID-19 pandemic. They claim she broke state law.
"My rationale for that is that those cases are all heard in Chancery Court in Davidson County . But why should a chancellor who's elected by the most liberal constituency in the state of Tennessee be making the decisions for all the state of Tennessee," said Bell, chairman of the Senate Judiciary Committee.
Nashville and Memphis are the state's bluest political areas, while the Legislature is controlled by Republicans with a supermajority.
Lyle was appointed to the Chancery Court post by former Republican Gov. Don Sundquist twice and has served there for more than two decades. But she drew the ire of Republican lawmakers when she ruled that fear of COVID-19 could be an excuse for casting an absentee ballot in the 2020 voting cycle.
Ultimately, the state Attorney General's Office flipped its legal stance and agreed with plaintiffs who challenged Tennessee's absentee ballot law, enabling people with underlying health conditions to vote by mail, in addition to their caregivers. The Supreme Court, though, overruled Lyle's decision to allow all voters to cast absentee ballots because of the virus.
The House Civil Justice Subcommittee voted Tuesday to kill Rep. Tim Rudd's resolution, which would have set up a legislative committee to investigate Lyle's rulings and potentially recommend she be removed from the bench. Rudd, R-Murfreesboro, called subcommittee Chairman Andrew Farmer a "disgrace" after his bill failed on a voice vote and told him he should be "ashamed" of the way he handled the matter.
Rudd asked for the matter to be "rolled" until the end of the subcommittee's calendar, possibly three weeks, but Farmer opted to take testimony from people scheduled to speak. Then, using a rules maneuver, subcommittee members defeated Rudd's bill on a voice vote.
Farmer later defended himself in an interview, saying he followed the subcommittee's rules. The Sevierville Republican noted that Rudd's bill would have set bad precedent for the Legislature.
Bell, though, said he is simply renewing legislation to change the way legal challenges to the state are handled after filing a bill in 2020. He noted he disagrees with former Tennessee Supreme Court Justice William Koch and U.S. Supreme Court Justice John Roberts, who've said judges make rulings based on the law, not on political affiliations.
"I think judges absolutely have political philosophies and that's why it's such a high-stakes issue in the president's race and it's even been high stakes at times in the state of Tennessee," Bell said.
Bell cited the decision by Davidson County Chancellor Anne Martin in which she found the governor's education savings account program unconstitutional, as well as Lyle's ruling to expand absentee voting as examples for why such a move is needed.
Senate Minority Leader Jeff Yarbro responded to Bell's proposal by saying the assignment of cases and jurisdiction shouldn't be turned into a "partisan issue." He pointed out 95-99% of cases involving the state don't deal with politics and, instead, require specialization to ensure consistency within the courts.
"I don't think that we should upset decades of history in a rush and certainly not based on a handful of polarized-type issues, because we're not asking these people to make political decisions. We're asking them to make legal decisions," said Yarbro, a Nashville Democrat.
Yarbro raised questions about whether this type of legislation could create new problems and undermine the "credibility of the judiciary."
"Most of the cases they've lost were predictable losers from the start, because they weren't legal," Yarbro said.
A group of prominent attorneys formed within the last week to fight the legislation affecting Chancellor Lyle and to stop the Legislature from affecting the impartiality of judicial decisions.
Nashville attorney Bob Boston, who testified before the House Civil Justice Subcommittee Tuesday in opposition to Rudd's resolution, said Wednesday he has similar concerns about Bell's pending legislation.
"I don't believe that changes, in fact, I think it would perpetuate an attack on the independence of the judiciary, because it's still finding a way to apply then-prevailing popular opinion into a case that should be decided on the merits right then," Boston said.
Boston noted he understands the rationale and sentiment but not how such a move would work without "blatant politics" becoming part of the judiciary. Davidson County judges are elected in non-partisan elections while judges in other counties align with parties.
The attorney described a problematic scenario for redistricting in 2022 when a Republican plan could be challenged in court. If a special court is set up to reflect "popular political interests," the court could rule one way. But if the political structure of the Legislature were to change in the next year and the redistricting question comes up again, the court could be restructured and the questions decided in a different manner through a different court that more closely aligns with the new controlling party, he said.
"It looks to me like it becomes a game of ping-pong that takes away certainty, but more importantly, independence," Boston said.
In fact, state Rep. Michael Curcio, R-Dickson, is sponsoring legislation, House Bill 1436, to create a three-judge panel to hear challenges of redistricting, once new maps are completed in 2022. Curcio carried the same bill in 2020.
The U.S. Supreme Court ruled that challenges on legislative redistricting fell under the purview of states, Curcio said, and with redistricting coming up, he noted he wants to get ahead of potential lawsuits.
"It's a direct response to the Supreme Court opinion," Curcio said.
The panel would not handle civil rights challenges, which would continue to go to federal court, he said.
Redistricting challenges would continue to be filed in Davidson County, according to the legislation. The Tennessee Supreme Court's chief justice would appoint three judges from each grand division of the state serving on the Court of Appeals to hear the case and make a ruling.
No member of the panel could be a former member of the General Assembly in an effort to "avoid political bias," the legislation says. Appeals would go to the Supreme Court.
Read more at TennesseeLookout.com.