NASHVILLE — Before ending their annual legislative session this week, Tennessee lawmakers' final act was to push through a bill that attempts to find friendlier legal venues to handle constitutional challenges filed against state laws as well as lawsuits involving legislative redistricting and state agency actions.
The result of a last-minute House and Senate compromise Wednesday night among Republicans who had disagreed on the approach for weeks, the bill creates a new, three-judge panel to hear such lawsuits. They are currently heard by elected judges in Nashville, which is the seat of state government and has a Democrat-leaning electorate.
Democrats opposed the measure, but after heated debate it easily passed the Republican-dominated House on a 67-22 vote with the Senate later following through and passing it 27-2. Four of the six Democrats in the Senate walked out and did not vote.
The bill has not gone to Republican Gov. Bill Lee, who has not said what he will do.
Senate Judiciary Committee Chair Mike Bell of Riceville, sponsor of the upper chamber's bill, has made no bones about his belief that liberal-leaning Nashville voters elect chancellors more aligned with their views. That, Bell and others argue, puts them out of step with most areas of the state.
Bell and other GOP critics say Nashville chancellors have ruled against the state in several high-profile cases. That list includes the state's private school voucher program, a Lee initiative, and the state's decades-old public-school funding formula vote, as well as a 2020 ruling broadening voting by mail last fall in the midst of the COVID-19 pandemic. The state Supreme Court eventually ruled in favor of the state but only after state attorneys agreed that people with underlying health conditions were eligible to vote by mail under the "ill or hospitalized" excuse.
"Why should judges who are elected by the most liberal constituency in the state, again, I'm taking this head on, why should they be the ones deciding cases that affect the state in general?" Bell said last month of Nashville Chancery Court judges.
However, House and Senate Republicans had disagreed for weeks over their approach. Bell and fellow Senate Republicans first passed a bill to make the three-judge panel a "super" Chancery Court with judges initially appointed by the governor. Then in 2022, they would run in competitive, statewide partisan elections under Bell's proposal. Each judge would have to come from one of the state's three geographic grand divisions.
Read the report on House Bill No. 1130/Senate Bill No. 868View
House Republicans' version, however, required the three new judges be appointed initially by the governor with a member from each of the state's grand divisions. They would then be elected later by voters, not in standard partisan elections but in nonpartisan yes/no retention elections as other appellate judges now are.
The compromise approved by a House and Senate conference committee does away with the election process and pares things down to already sitting county-level judges who are all elected. One judge would come from the county where a lawsuit is filed. The other two would be appointed on a case-by-case basis by the Tennessee Supreme Court and each would have to come from different grand divisions.
Cases would be heard in Supreme Court offices located in the grand division where cases are filed. Those offices are in Knoxville, Nashville and Jackson. If the plaintiff resides or is located outside Tennessee, the suit would be filed in Sumner County, home to Rep. Johnny Garrett, R-Goodlettsville, and House Majority Leader William Lamberth, both of whom are attorneys.
Republicans lauded their compromise, with Bell saying, "I believe it's better than what either body passed to start with. We have all three Grand Divisions represented. This is much more equitable, much more fair to the citizens of the state of Tennessee."
Senate Minority Leader Jeff Yarbro, a Democratic attorney from Nashville, said "folks, this is madness. We're just lighting the bomb on fire and throwing it at the judiciary."
Noting the legislation gives the state Supreme Court only 56 days to put formalized rules in place governing the process, Yarbro said the conference committee put together its compromise report in 45 minutes. "If we're going to change the operation of the third branch of government, we shouldn't do it at 9 o'clock at night. We don't even know what's in it."
Earlier in the House, Rep. John Ray Clemmons, D-Nashville, an attorney, called it "completely unprecedented" to have three judges operating together in a trial court and he questioned how that would work in the fact-finding process of a hearing or trial.
Garrett said procedural motions and other processes would be governed by two of the three judges agreeing. Clemmons raised concerns about what confusion that might create for jurors in a jury trial. Calling the conference committee report "sausage making at its worst," Clement charged the proposal was "rotten meat to begin with."
Another House Republican and attorney, Rep. Bruce Griffey of Paris, praised the compromise, saying "we all know from history in America that lawyers and judges are humans like everybody else. They have their political philosophy."
Chattanooga attorney Lee Davis ripped into the bill Thursday, saying lawmakers "started the day wanting to create an entirely new chancery court and then they ended the day by basically restructuring our trial courts and telling judges they're going to have training wheels."
Likening the situation to a baseball game, Davis said "they just put three umpires behind home plate to call balls and strikes. That's what they accomplished yesterday. They don't like the way the game is played currently.
"They [legislators] need to learn to throw in the strike zone, that's the problem," Davis added.
Contact Andy Sher at email@example.com or 615-255-0550. Follow him on Twitter @AndySher1.