by William A. "Zan" Blue, Jr., 2020-2021 Roundtable General Counsel
The leaders of our business community need to stand up and be heard defending judicial independence. An independent judiciary using the rule of law is a necessary condition for a properly functioning economy.
Judges must be able to make findings of fact, interpret the law and apply the law to the facts without being intimidated by the transitory politics of the moment. A judge’s decision may be right or wrong, but if the judge has carefully considered the evidence, found the facts, carefully considered the law, and applied the law to the facts, then the judge has done his or her job properly.
In last summer’s state absentee-ballot voting case, Nashville Chancellor Ellen Hobbes Lyle did just that. Some who disagreed with her decision took an extraordinary step: They filed House Resolution 23 to start the process of ousting her from her judicial seat. The resolution claimed Chancellor Lyle “committed serious ethical violations and abused her authority by pursuing a personal and partisan agenda.”
This proposed resolution was roundly criticized by legal professionals across Tennessee as an alarming threat to the independence of our state’s judiciary – as it should have been. Business leaders should also realize that this and a similar Senate proposal threaten Tennessee’s business climate. Politically motivated attempts to intimidate judges undermine the judicial independence that is a foundation of our political, social and economic system.
In business, as in law and in government, the consistent application of rules and established processes creates a stable environment so decision-makers can act with confidence. Tennessee’s business climate has benefited greatly from measures enhancing the effectiveness, accountability and efficiency of our state’s rule of law and independent judiciary – particularly these:
In 2011, our state enacted the bipartisan Tennessee Civil Justice Act, which delivered predictability and certainty to businesses by instituting new rules on damages, product liability, venues, and class actions.
In 2014, business interests strongly supported the effort championed by former Governors Haslam and Bredesen in favor of the judicial-selection amendment to the Constitution of Tennessee, which clearly established our Tennessee Plan of merit selection and periodic retention elections for appellate court justices.
A year later, the business community worked with our state’s Supreme Court to launch the Business Court Docket Pilot Project, which created a dedicated legal lane for adjudicating complex and difficult business litigation in a fair, efficient manner.
H. Res. 23 threatened to undermine one of the most stable elements of our state’s business climate – the carefully-developed independence of our judiciary and our effective processes of judicial appeal and accountability. The proponents of this legislation proposed overriding that independence and those processes – and the will of the voters who elected one of our state’s most-respected judges – with a retaliatory effort motivated by their disagreement with her rulings in one case.
Tennesseans don’t expect legislators, or anyone else, to always agree with how our judges interpret or apply the law in individual cases. We disagree with each other all the time – and we settle those disagreements in court or through elections.
Tennesseans do expect our General Assembly to use its extraordinary power to remove a judge only in rare cases when he or she violates the public trust. The people of Tennessee granted their legislature that extraordinary power by placing it in our state Constitution, and previous General Assemblies have used that power, judiciously and rarely, to protect the integrity of state government by removing judges who committed crimes and judicial misconduct.
When a Tennessee judge has clearly committed a crime or violated our state’s established rules of judicial conduct, it’s clearly appropriate for the General Assembly to consider exercising its extraordinary constitutional power of removal. But in cases where a legislator—or anyone else—disagrees with how a judge applies our laws to the facts of a case, our system provides two clear, routine, non-extraordinary avenues for those seeking redress.
The first is to challenge a judge’s decisions through Tennessee’s judicial appeal process. In the case of Chancellor Lyle’s 2020 absentee-ballot case rulings, this process worked exactly as it was supposed to work: On expedited appeal before the Tennessee Supreme Court, the Attorney General modified its positions with concessions, the Court overturned some parts of her decision, and the Court affirmed other portions. One justice would have affirmed the entire decision. The appeal process worked exactly as it should.
The second is Tennessee’s electoral process, in which the deciders are the Tennessee voters in a judge’s jurisdiction. For Chancellor Lyle, the time for that process is yet to come.
And legislators who disagree with how the judiciary has applied the law have yet a third option: They can use the equally-well-established, transparent and effective legislative process to amend existing laws, repeal them, or create new ones.
Confidence in our state’s government and business climate both grow when our elected leaders use extraordinary discretion in exercising their extraordinary constitutional powers. Wisely, House subcommittee and Republican leaders appear to have decided that their disagreements with Chancellor Lyle’s rulings in the 2020 state absentee-ballot case did not justify starting a removal process against her through House Resolution 23. We trust and expect that Tennessee Senate leaders will also choose wisely, and decline to pursue similar Senate legislation targeting Chancellor Lyle.