New super-chancery court would be appointed by governor, take over cases … against governor

Senators reach to their voting buttons during a floor session on March 16, 2020. Seated from left are Republican Sens. Mark Pody of Lebanon, Paul Rose of Covington, Richard Briggs of Knoxville, Janice Bowling of Tullahoma, and Paul Bailey of Sparta. (Erik Schelzig, Tennessee Journal)

The latest version of the Republican effort to create a statewide chancery court with jurisdiction over constitutional challenges would allow all pending cases to be transferred to the new panel upon the motion of the Attorney General. The initial three members of the court would be appointed by Gov. Bill Lee, who is usually named as the defendant in lawsuits challenging new laws and executive orders.

The governor would select three chancellors — one from each Grand Division — from lists of finalists chosen by the Trial Court Vacancy Commission, which is entirely made up of appointees of the House and Senate speakers. The appointed chancellors would serve until the
August 2022 elections for the next eight-year judicial terms. At that point, the three chancellors would be elected via a statewide popular vote, a process unseen since the state adopted the Tennessee Plan for yes-no retention elections in the 1990s (which was overwhelmingly affirmed in a 2014 constitutional amendment.)

Tennessee currently has only three offices elected statewide: the governor and two U.S. senators. The old Public Service Commission used to be popularly elected — current state Sen. Sara Kyle (D-Memphis) was among the last members until then-Gov. Don Sundquist replaced it with the appointed Tennessee Regulatory Authority in 1996.

Here’s the (UPDATED) amendment proposed by Senate Judiciary Chairman Mike Bell (R-Riceville):


SECTION 1. Tennessee Code Annotated, Title 16, Chapter 11, is amended by adding the following as a new part:

16-11-301.

There is created and established a court of original jurisdiction in this state to be designated and styled the statewide chancery court.

16-11-302.

(a) The statewide chancery court shall be composed of three (3) chancellors, of whom no more than one (1) shall reside in each grand division of the state.

(b) The chancellors of the statewide chancery court shall be appointed and elected in the manner provided by § 17-1-103(b) and title 17, chapter 4, part 3; provided, however, that the judicial district for each chancellor is the state of Tennessee and each chancellor must be elected in a statewide election. Candidates for statewide chancery court must file an original nominating petition, pursuant to § 2-5-103.

(c) The governor shall appoint three (3) persons to serve as chancellors of the statewide chancery court, and each person so appointed shall serve in that capacity until September 1, 2022, or until the person’s successor is elected and qualified. At the August 2022 general election, and every eight (8) years thereafter, the qualified voters of the state shall elect three (3) chancellors for a full eight-year term.

(d) The initial terms of the chancellors shall begin on October 1, 2021.

(a) Notwithstanding any law to the contrary, the statewide chancery court has exclusive original jurisdiction over any civil cause of action that meets each of the following criteria:

(1) Challenges the constitutionality or validity of:

(A) A state statute, including a statute that apportions or redistricts state legislative or congressional districts;

(B) An executive order; or

(C) An administrative rule or regulation;

(2) Includes a claim for declaratory judgment or injunctive relief; and
(3)

(A) Is brought against the state or a state department, agency, or official acting in their official capacity; or

(B) In which the attorney general intervenes on behalf of the state, pursuant to § 29-14-107(b), and requests that the issue of constitutionality or validity be certified to the statewide chancery court. The court from which an issue is certified, pursuant to this subdivision (a)(3)(B), shall maintain jurisdiction over the remainder of the case and shall enter a stay in proceedings until the statewide chancery court has ruled on the issue certified.

(b) The statewide chancery court has the same powers and privileges that any chancery court has pursuant to § 16-11-101, except that the court’s jurisdiction is limited as provided in subsection (a).

(c) Except as provided in § 16-11-305(c), the court of appeals shall have jurisdiction of appeals from the decisions of the statewide chancery court. Notice of such appeal must be filed with the court of appeals.

16-11-304.

(a) The statewide chancery court shall sit in the supreme court buildings in Knoxville, Nashville, and Jackson, unless a location is otherwise designated by the supreme court, and shall hear, try, and dispose of the action as a three-judge panel.

(b) In the event of a disagreement among the chancellors, the opinion of the majority prevails.

(c) If a chancellor is recused from a case before the court or is otherwise temporarily unable to serve, then the supreme court shall appoint as a replacement another elected trial court judge with civil jurisdiction who is from the same grand division as the chancellor being replaced and who shall serve by interchange, as provided in Rules 10B and 11 of the Tennessee Supreme Court Rules.

(d) At the first meeting of the court after the initial appointments and subsequent regular judicial elections, the members of the court shall choose the presiding judge of the statewide chancery court.

(e) The clerk and master of the statewide chancery court must be appointed by the chancellors and shall serve as provided in title 18, chapter 5.

(f) The rules promulgated by the supreme court shall govern the practice and procedure in the statewide chancery court, including certification of questions to the statewide chancery court and the transfer of cases to and from the statewide chancery court.

16-11-305.

(a) Pursuant to Article II, Sections 4, 5, and 6 of the Constitution of Tennessee, which vest the power of apportionment with the general assembly, the statewide chancery court shall not impose a substitute plan for a plan enacted by the general assembly apportioning or redistricting state legislative or congressional districts under this part unless the court first gives the general assembly a period of time to remedy any defects identified by the court in the court’s findings of fact and conclusions of law. The period of time given must not be less than fifteen (15) calendar days from the issuance of the court’s findings of fact and conclusions of law, and in setting the period of time, the court shall consider whether the general assembly is currently in session or out of session.

(b) If the general assembly does not enact a new plan within the period of time set by the court pursuant to subsection (a), then the court may impose an interim districting plan for use only in the next election cycle, provided the interim districting plan differs from the districting plan enacted by the general assembly only to the extent necessary to remedy any defects identified by the court.

(c) A party in an action challenging a statute that apportions or redistricts state legislative or congressional districts that is dissatisfied with the final judgment of the statewide chancery court may appeal to the supreme court, as a matter of right, within thirty (30) days from the entry of the judgment of the statewide chancery court. The record on appeal must conform to the requirements of Rule 24 of the Tennessee Rules of Appellate Procedure.

SECTION 2. Tennessee Code Annotated, Section 4-5-223(a)(1), is amended by deleting the language “chancery court of Davidson County” and substituting “statewide chancery court”.

SECTION 3. Tennessee Code Annotated, Section 4-5-225(a), is amended by deleting the language “chancery court of Davidson County” and substituting “statewide chancery court”.

SECTION 4. Tennessee Code Annotated, Section 17-1-103(b), is amended by redesignating the subsection as subdivision (b)(1) and adding the following subdivision (b)(2):

(2) Each of the three (3) elections for chancellor of the statewide chancery court must be won by the person from the appropriate grand division that receives the highest number of votes.

SECTION 5. Tennessee Code Annotated, Section 2-13-202, is amended by designating the existing language as subsection (a) and adding the following as subsection (b):

(b) Statewide political parties shall nominate their candidates for the statewide chancery court by vote of the members of the party in a May primary election, or in the presidential preference primary, whichever is applicable.

SECTION 6. Any case for which the statewide chancery court has jurisdiction that is pending on October 1, 2021, must be transferred to the statewide chancery court, upon motion by the attorney general.

SECTION 7. For the purpose of appointing the initial chancellors of the statewide chancery court, this act takes effect upon becoming a law, the public welfare requiring it. For all other purposes, this act takes effect October 1, 2021, the public welfare requiring it.

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