Bar association blasts bid to remove judge over absentee ballot ruling

Rep. Tim Rudd (R-Murfreesboro), standing right, attends a GOP caucus meeting on July 24, 2019, in Nashville. (Erik Schelzig, Tennessee Journal)

The Tennessee Bar Association says an effort to oust a Nashville judge over her ruling in an absentee voting case last summer “threatens the bedrock principle of separation of powers.”

Rep. Tim Rudd (R-Murfreesboro) introduced the resolution to begin ouster proceedings against Chancellor Ellen Hobbs Lyle last week. The measure has 67 co-sponsors — enough for the removal to clear the House chamber if it came up for a floor vote. Lyle was appointed to the bench by Republican Gov. Don Sundquist in the 1990s.

Bar Association President Michelle Greenway Seller said in a release that if the ouster succeeds, it could “create a precedent that any time a judge rules against the state, or on a statute, or renders a politically unpopular decision, that decision could potentially trigger legislative removal proceedings against that judge.”

Read the full release below.

NASHVILLE, March 2, 2021 — The Tennessee Bar Association issued a statement today challenging a Tennessee House resolution that would consider removing Nashville Chancellor Ellen Hobbs Lyle from office. House Resolution 23 (HR 23) would “have a chilling effect on the administration of justice in our state and threatens the bedrock principle of separation of powers, which lies at the core of Tennessee’s system of government,” the statement says in part.

Below is the complete statement from TBA President Michelle Greenway Sellers:

Since 1881, the Tennessee Bar Association (TBA) has represented the entire spectrum of the Tennessee legal community, from plaintiff and defense attorneys to judges, government and legal services attorneys, corporate counsel, and many attorneys residing outside the State who retain an interest in the Tennessee legal profession.The TBA is a strong advocate for the profession and the development and maintenance of our justice system. This statement is not intended to be political or partisan, but instead one of extreme concern and caution related to the fundamental importance of the separation of powers and maintaining an independent judiciary in the State of Tennessee. We believe House Resolution 23 (HR 23) will have a chilling effect on the administration of justice in our State, and threatens the bedrock principle of separation of powers, which lies at the core of Tennessee’s system of government.

Article VI, Section 6 of the Tennessee Constitution provides a process for removing judges and attorneys for the state from office for cause. HR 23 appears to be the first time the legislature has used Article VI, Section 6 of the Tennessee Constitution to begin the removal process of a judge from office for cause based on rulings in a judicial proceeding. After a thorough review of HR 23 and the underlying case, the TBA has significant concerns about the resolution’s impact on the constitutional separation of powers in our three branches of government. As stated in the Preamble to Rule 10 of the Code of Judicial Conduct, “[a]n independent, fair and impartial judiciary is indispensable to our system of justice.” Judges should decide matters based on a thorough analysis and interpretation of the law without concern for the decision’s potential political implications.

Article VI, Section 6 is not a tool used as a matter of course, and we respectfully believe that the legislature should not use it in this circumstance. The TBA is concerned that HR 23, if successful, will create a precedent that any time a judge rules against the state, or on a statute, or renders a politically unpopular decision, that decision could potentially trigger legislative removal proceedings against that judge. This also results in the potential for removing a judge any time a ruling is overturned on appeal, when in fact the act of the appeal is a clear measure that the legal process is working appropriately.

Tennessee law provides for multiple avenues to hold judges accountable should that prove necessary. One such avenue, the Board of Judicial Conduct, was created by the legislature itself. The board provides an orderly and efficient method for inquiring into, among other things, the fitness of judges, a judge’s manner of performance of duty, and the judge’s commission of any act that reflects unfavorably upon the judiciary or that may adversely affect the administration of justice. The board is comprised of 16 members, eight of which are appointed by the speakers of the Senate and House, respectively.

Further, the judicial system has in place an appeals process. The state utilized the appeals process in the matters outlined in HR 23. Ultimately, the Tennessee Supreme Court overturned Chancellor Lyle’s temporary injunction, although one justice did agree with her.

The people act as another vehicle for judicial accountability. Article VI, Section 4 of the Tennessee Constitution provides that “…the Judges of the Circuit and Chancery Courts, and of other Inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.” Chancellor Lyle, like many other judges across this state, is an elected judge. She will stand for reelection and face a decision on her continued tenure by the voters in her district. The voters in her district should exercise their judgment about whether or not she should remain in office. Reasonable minds can and will continue to disagree with judicial decisions even in cases like this one of first impression. The remedies related to those disagreements lie in the appellate process and at the voting booth. Processes currently exist as a check on all judges, and those processes work. We strongly encourage members of the General Assembly and the citizens of this state to utilize the appeals process, make complaints to the Board of Judicial Conduct when necessary, and exercise their right to vote. We also urge the General Assembly to reconsider HR 23 and its impact on an impartial, independent judiciary.

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