OPINION: New state court for constitutional challenges needs more thought, time

Clint Cooper, Chattanooga Times Free Press, Tenn.
·4 min read

May 3—When the question is about setting up an entire new state court, and how much politics would be involved in the selecting of judges for such a court, we recommend a slower and more considered process than is currently taking place in the General Assembly.

On Monday, legislation establishing a three-judge panel to hear constitutional challenges to Tennessee laws was to be heard in Senate and House committees. The measure has already passed the House, but the Senate passed it with a change. Now the House must consider it again.

In the meantime, the legislature put $2.4 million toward the new panel (which would have a $2 million recurring expense) in its just-passed fiscal 2022 budget.

But it was only mid-March when House sponsor Sen. Mike Bell, R-Riceville, first began talking about introducing such legislation. It seems to us a longer process is needed to be sure such a court isn't duplicative, is constitutional and can be created without being overtly politicized.

We understand the desire for such a court. In the recent past, a Davidson County Chancery Court, elected by one of the state's most liberal constituencies, nixed a measure passed by an overwhelming majority of legislators and made a ruling not supported by most Tennesseans.

Two cases where other judges might have ruled differently, as suggested by supporters of the bill, are the unconstitutional declaration by Chancellor Anne Martin of Gov. Bill Lee's education savings account program over a violation of Home Rule, and the permission granted by Chancellor Ellen Hobbs Lyle to expand absentee balloting during the height of the COVID-19 pandemic in 2020. But Republicans say there have been others.

Bell says it comes down to this: The legislation "would put judges in positions to hear cases against the state that more accurately reflect voters of the state if they're elected statewide."

The wording of the bill would give the court "exclusive original jurisdiction" over any civil case involving constitutional challenges, state statutes (including those that apportion or redistrict state legislative or congressional districts), executive orders, administrative rules, or regulations and claims for declaratory judgment or injunctive relief.

The bill further states the court would hear those cases brought against a state department, agency or state official when the attorney general requests the case be transferred to the court's jurisdiction.

Certainly, if it expedites rulings that might take longer in other courts, that would be a plus.

But opponents say the measure is costly, duplicative and political, especially if Lee appoints the first panel of judges — one each from the state's three grand divisions — from a list compiled by the Trial Court Vacancy Commission to start serving Oct. 1 (and who would then face statewide election in 2022. Opponents also maintain the panel wouldn't have all that many cases on which to rule.

And while they claim the creation of such a panel is akin to "court packing" or "judge shopping," what they don't say is that for each case to be held in the same liberal court is a sort of "forced" judge shopping. In other words, because the chancellors in Davidson County are more likely to rule against conservative ideas, Republicans — and Tennesseans as an extension — will never get the fair consideration they should.

That said, in addition to certifying whether such a court would pass state constitutional muster, are their other compromises or solutions?

What if such a court started with judges elected in 2022 instead of with the governor-appointed panel first? What if an arrangement could be worked out where chancellors in each of the state's grand divisions alternately heard cases (instead of all cases being heard by Davidson County chancellors)? What if cases were heard by chancellors in the jurisdiction of sponsors of the bill that may be in question at the time?

We admit there are legal minds who could poke holes in our suggestions and even offer some better ideas that would result in cases being heard by a fairer representation of Tennessee voters. But the point is the limited time necessary to come up with and consider such solutions.

Although Lt. Gov. Randy McNally said last week the measure is still fluid and may not be the only solution to the problem, the 112th General Assembly may end its session as soon as this week.

So instead of jamming a "best-we-can-get" bill through the Republican supermajority at the last minute, why not put off the idea for further study until a fair solution can be crafted?