Retiring Justice Sharon Lee leaves a legacy of bold dissenting opinions | Georgiana Vines

Tennessee Supreme Court Justice Sharon Lee has announced her retirement for next year at a time when she has made history as a dissenter.

She had written so many dissenting opinions in 2017 that the Knoxville Bar Association featured a story, “Justice Sharon G. Lee and the Power of Dissenting Opinions,” that made the point these opinions can have a powerful impact on the legal system.

The story was written by Emily H. Harvey, senior law clerk to Frank G. Clement Jr. of the Tennessee Court of Appeals, Middle Section, and David L. Hudson Jr., director of academic affairs and legal writing, Nashville School of Law. They quoted former U.S. Supreme Court justices, including the late Ruth Bader Ginsburg, as saying a dissenting opinion can sharpen and improve the writing of a majority opinion.

Lee has served 19 years in the Tennessee judiciary, initially being appointed to the Court of Appeals by Gov. Phil Bredesen, a Democrat. Bredesen also appointed her to the state Supreme Court. She has been retained by voters in elections ever since.

“I’m sad to hear of her retirement, as were many Democrats,” Knox County Democratic Chairman Matt Shears said Tuesday. “I’m proud of her service and legacy to the state. She represents the best of our party and the judicial system. I look forward to Justice Lee being an active member of the party.”

Lee, who turns 69 on Dec. 8, wrote Gov. Bill Lee (the two are not related) that she is retiring Aug. 31, 2023. This sets in motion the process for a state judicial commission to seek applicants for the post, probably within the next few weeks; hold hearings; and send the governor three names from which to choose Justice Lee’s successor. Then the legislature has to approve the governor’s choice. All of this is likely to be done by next spring.

Lee considered not seeking another term this year until Justice Constance “Connie” Clark became ill with cancer and died in September 2021. “We didn’t need two justices leaving at the same time. It was just to give more continuity and a more orderly transition” not to retire earlier, she said in an interview Monday.

She said had she been in a contested reelection battle this year like she, Clark and others were in 2014, she would not have run because that would have involved fundraising while knowing she would not serve a full term.

The dissenting opinions the 2017 story looked at questioned majority opinions that provide inadequate constitutional protection against unreasonable searches and seizures, deprive parents who are facing termination of their rights the effective assistance of counsel, and erect barriers for inmates’ access to the courts.

A paper written in 2020 by Jennifer Foster to complete her JD degree from the Nashville School of Law said the themes of Lee’s dissents include fundamental fairness, the majority’s method of deciding cases, giving parties their “day in court” and the importance of constitutional rights such as trial by jury. “Writing boldly and unapologetically she is not afraid to defend her position,” Foster said.

Justice Lee is the longest-serving judge on the state Supreme Court and the only member from East Tennessee. She was chief justice 2014-16, when she promoted access to justice and spearheaded some innovations, including a review of the state’s indigent representation system. At one time, she and two other women formed a majority on the five-member state Supreme Court.

In a statement, Chief Justice Roger A. Page said Lee has always been forward-thinking, innovative and open-minded. “She has never forgotten where she came from and the people she serves. She is a justice of the people and has advocated for transparency and ensuring the Court’s opinions and orders use language that [is] accessible to everyone, not just attorneys,” Page said.

Lee had a small-town practice in Madisonville for 26 years, including with her well-known uncle, the late J.D. Lee, and served as municipal judge for Madisonville and as attorney for Madisonville, Vonore and Monroe County. Her parents, Charles and Judith Lee, were active in Democratic politics in Monroe County and held public offices there. She lost two judge races in the county before being appointed to the appellate court, and now resides in Knoxville.

Some 10 years ago, Justice Lee gave talks on her dad’s World War II service. He was a waist gunner and flight engineer on a B-17 bomber when the plane was shot down on his sixth bombing mission. He was imprisoned at Stalag Luft 1 in Barth, Germany, on the Baltic Coast until liberated on May 13, 1945. Then he returned to Monroe County and rebuilt his life, but he rarely talked about his experiences, his daughter said. She pieced together his experiences from the few discussions they had about them and medals he won.

In retirement, the Webb School and University of Tennessee graduate said she plans to spend more time with her family, which includes two daughters from a marriage to Madisonville lawyer Peter Alliman, and three grandchildren.

“You can’t do a reduced workload on the court. You have to be all in. I felt it was a good time to retire for me and the court,” Justice Lee said.

∎ UPDATE ON TVA BOARD: The last of President Joe Biden’s nominees for the Tennessee Valley Authority board of directors will be up for consideration before the Senate Committee on Environment and Public Works at 10 a.m. Tuesday, Nov. 29. The committee will consider the nomination of Beth Prichard Geer of Brentwood, chief of staff to former Vice President Al Gore, plus some other unrelated nominations.

Five other nominees for the nine-member TVA board of directors cleared the committee on Sept. 29 and await full Senate confirmation. Geer’s nomination is being held up by Sen. Joni Ernst, R-Iowa. Ernst questioned Geer at an April 6 hearing over what she meant in a tweet in 2015 when she tweeted “hideous” after Ernst responded to President Barack Obama’s State of the Union Address.

This column reported two weeks ago that the Biden administration needs to have the TVA board nominees approved by the end of the year or the nomination process will have to start over. Also at the end of the year, the present TVA board no longer will have a quorum if new members aren’t approved. The TVA board meanwhile has approved certain duties going to CEO Jeff Lyash in case that happens.

On Nov. 17, a coalition of national environmental groups sent a letter to Senate Majority Leader Chuck Schumer, calling on the leadership to follow through on a bipartisan deal made last year to confirm all six of Biden’s nominees together.

The coalition, Clean Up TVA, includes the Southern Alliance for Clean Energy, whose executive director, Stephen A. Smith, told this columnist that the TVA board is the last “vestige of oversight” for the executive staff.

“It's critical that the Biden nominees are quickly confirmed so that they can bring the President's policy perspective on decarbonization to bear on TVA decision making. We strongly disagree with the existing TVA board of directors continuing to delegate critical policy decisions to the CEO that would potentially tie the hands of the future board. We hope that the new board of directors and the CEO will revisit these policy decisions on additional fossil fuel generation going forward," Smith said.

The coalition’s other members are the Sunrise Movement, Natural Resources Defense Council and Center for Biological Diversity’s Energy Justice program. In its statement, the coalition said the TVA board ”is poised to make critical decisions on TVA’s long-term energy trajectory in the next two years, including investments in renewable energy development and energy efficiency programs and an Integrated Resource Plan. With the recent passage of the Inflation Reduction Act, TVA also has an opportunity to leverage expanded clean energy tax credits to deploy solar, battery storage, and help customers take advantage of cost-saving energy efficiency technologies.”

TVA generates electricity for more than 10 million customers in Tennessee and portions of Alabama, Mississippi, Kentucky, Georgia, North Carolina and Virginia.

The other nominees who have cleared the committee are Michelle Moore, Richmond, Va.; Robert Klein, Memphis; William Renick, Ashland, Miss.; Adam Wade White, Eddyville, Ky., and Joe Ritch, Huntsville, Ala.

Live video of the Tuesday committee meeting will be available on the EPW Website, Twitter and You Tube.

Georgiana Vines is retired News Sentinel associate editor. She may be reached at gvpolitics@hotmail.com.

This article originally appeared on Knoxville News Sentinel: Georgiana Vines: Retiring Justice Sharon Lee leaves legacy of dissents