legal challenges

What’s next for the proposed super chancery court?

The state Capitol on March 16, 2020. (Erik Schelzig, Tennessee Journal)

The two chambers of the General Assembly are advancing competing versions of a bill seeking to bypass the chancery court in Nashville as the venue for constitutional challenges. The Senate version, which passed 27-6, would create a new super chancery court made up of three judges elected statewide. The House voted 68-23 on Wednesday to establish a special court of appeals comprised of three judges who would stand for retention elections.

The differing approaches appear destined for a conference committee to try to work out the differences. But it’s unclear where the twain might meet.

The Senate measure is sponsored by Judiciary Chair Mike Bell (R-Riceville), a longtime advocate of popular elections for judges. As is Speaker Randy McNally (R-Oak Ridge) and Finance Chair Bo Watson (R-Hixson). So backing off of the contested election element would be a tough bill to swallow. But after the House decided to go with the appeals court concept, the lower chamber appears locked into the idea replace-retain elections for members of the new bench.

A layer of unease about the bill is that the governor would appoint the members of both versions of the new court, which has led to criticism that he would be able to stack the bench to favor his own legislative initiatives that have either already run into trouble in court, or could do so in the future.

One way to lift that concern would be hold open races for the judicial seats in August 2022 rather than have the new chancellors first be appointed by the governor. But that would only work for the Senate bill, as the House measure by definition involves the appointment of judges.

UPDATE: After extensive closed-door huddling, the Senate has retreated on its demand for electing statewide judges. Under a compromise, the chancellor who lands a legal challenge of constitutional or redistricting matters would be joined by two other chancellors from the remaining two grand divisions to preside over the case.

Senate deals setback to effort to block local governments from suing state

The Tennessee Senate meets on June 1, 2020. (Erik Schelzig, Tennessee Journal)

The Senate on Monday rejected a proposal by Sen. Brian Kelsey (R-Germantown) to ban local governments from filing lawsuits to challenge the constitutionality of laws passed by the General Assembly.

Kelsey said his bill would only apply to lawsuits filed after the bill went into effect. But he cited recent legal challenges over school vouchers, voter ID, and funding for large school districts as examples of litigation he is seeking to outlaw.

Kelsey’s bill went off the rails when Republicans like Sens. Ken Yager of Kingston and Page Walley of Bolivar began questioning why local governments should be prevented from challenging the constitutionality of measures that may bring them fiscal harm.

Walley noted that when he was a state House member in the 1990s, 77 small school districts successfully sued the state for more equal education funding. Kelsey argued that instead of the lawsuit filed by the late Lewis Donelson, the small school districts should have pursued their aims by “talking to the legislature.”

Walley agreed it would have been better for the General Assembly to act on its own accord, but recalled “an intransigence” on the part of lawmakers that prevented a solution at the time.

The vote on Kelsey’s amendment failed 14-14, with three Republicans and two Democrats missing the vote. Kelsey asked to move his bill to Wednesday, at which point he is expected to introduce another amendment seeking similar restrictions.

Kelsey’s amendment failed on a 14-14 vote on April 26, 2021.