Supreme Court

Page to take over as chief justice of Tennessee Supreme Court

The state Supreme Court has elected Roger Page as its new chief justice. He succeeds Jeff Bivins, who has presided over the court since 2016. Both justices were appointed to the state’s highest court by Republican Gov. Bill Haslam.

The change in leadership comes as the state prepares for judicial elections in August 2022, followed by the Supreme Court’s appointment of the state’s next attorney general. Current AG Herbert Slatery hasn’t said whether he will apply for another eight-year term.

Here’s the full release from the Adminstrative Office of the Courts:

Nashville Tennessee Supreme Court Justice Roger A. Page has been elected Chief Justice by his colleagues for a term that begins September 1, 2021. Justice Page succeeds Justice Jeff Bivins, who has served as chief justice since September 2016.

“It is an honor to serve as chief justice and a responsibility that I do not take lightly,” Justice Page said. “Our Supreme Court has over 100 years of judicial experience and is well-prepared to take on the serious and complex issues as the law continues to be amended and revised, to grow and evolve.” 

Justice Page will be sworn-in by Justice Connie Clark in a small ceremony to be held in the courtroom he presided over in the Madison County Criminal Justice Complex on September 1 at 1:30 p.m.  In order to accommodate members of the judicial family, the bar, state leaders, and policymakers, the event will be livestreamed at: https://www.youtube.com/user/TNCourts/featured.

The location and day are not without personal meaning.  Justice Page was ceremoniously sworn-in as a trial judge by federal Judge Julia Smith Gibbons, for whom he clerked after law school, in the same courtroom exactly 23 years ago to the day.

“I began my judicial career in that courtroom and served the community I grew up in as a trial judge for more than thirteen years,” he said. “It means so much to be able to step back into that courtroom to take the oath as chief justice in front of my family. They have given me unconditional support every step of the way.” 

Justice Page graduated from the University of Tennessee College of Pharmacy and worked as a pharmacist in Memphis before he  earned his law degree from the University of Memphis, graduating fourth in his class.  He began his judicial career when he was elected Circuit Court Judge in 1998 for the 26th Judicial District, which includes Chester, Henderson, and Madison counties.

He was appointed to the Court of Criminal Appeals by former Governor Bill Haslam in 2011.  In 2016, Governor Haslam appointed him to the Supreme Court.  For the first time in thirty years, a rural West Tennessean will serve as chief justice.

Justice Page was raised on the family farm in Mifflin,  Chester County, Tennessee, with West Tennessee  roots going back seven generations. His mother and his aunt will join his wife, retired Chancellor Carol McCoy, and two sons and their spouses for the swearing-in ceremony. He also has three grandchildren with another one expected in January 2022. 

“The Supreme Court serves the entire State, and the judiciary significantly reflects the diverse collection of viewpoints, backgrounds, and perspectives at all levels of justice,” Justice Page said. “From big cities and urban neighborhoods to sprawling suburbs to rural farms, small river towns, and communities settled atop mountain ridges, our State encompasses all views.” 

Across the state, the court system is still responding to and recovering from the pandemic, during which jury trials were postponed. On a positive note, judges and their court staff quickly adopted new technologies to ensure courts always remained open and accessible and that cases moved forward as much as possible. New and expanding technologies, together with strategies to increase the use of senior and retired judges as well as alternative dispute resolution, have provided judges with an array of resources.

Justice Page will continue to emphasize the Supreme Court’s prized Access to Justice initiative.  It focuses on civil actions when litigants do not have the right to an attorney and  is critical to the state’s economic growth and the personal stability of its citizens.  

“Courts need to be open, fair, efficient, and accessible to everyone in our state,” Justice Page said. “We have made strides by shoring up the guardian ad litem program and creating the appellate public defender’s office, but there is more work to be done. The equitable, effective, and professional administration of justice benefits everyone from litigants to victims to defendants to taxpayers to communities. Our present opportunity to invest in efficient changes will promote a positive effect on generations to come.”

Expanding access to the courts in rural communities is an issue Justice Page will stress during his term as Chief Justice. One aspect of Access to Justice is expanding high speed internet access into all rural counties of the State.  Justice Page supports judicial efficiency and recognizes that Governor Bill Lee’s efforts in that area will allow courts to expand remote hearings and e-filing, allowing every citizen in the State to have equal access and participation in the judicial system.

“Chief Justice Bivins did a tremendous job leading the Supreme Court and the judiciary,” Justice Page said. “It was extremely challenging at times, and he rose to the occasion, providing clear direction and effective and innovative solutions. While there is uncertainty about where we are headed, I am confident we have a solid blueprint to work with going forward.”

New edition alert: Lee order snubbed, GOP introduces fees to run, 3-judge panels named

Gov.-elect Bill Lee speaks to a Chamber of Commerce event in Memphis on Dec. 6, 2018. (Erik Schelzig, Tennessee Journal)

In this week’s print edition of The Tennessee Journal:

— Big school districts ignore Lee’s executive order for opting out of masks

— That’ll cost you: State GOP approves fee schedule for candidates, bona fide updates.

— Money matters: Tennessee ends budget year with $2.96B surplus in its general fund.

— A three-judge tour: Supreme Court names first three-judge panels, two headed by Lyle.

— Also: Lee gets the Trump endorsement, Harshbarger late on stock disclosures, Haslam and Sundquist as new radicals, and was Fiscus barking up the wrong tree with her muzzle complaints?

Access the your TNJ copy here or subscribe here.

Pro-voucher groups celebrate Supreme Court arguments

School voucher supporters are lauding Thursday’s state Supreme Court arguments over the state’s appeal of lower court rulings declaring the program violates the Tennessee Constitution’s home rule protections.

Here’s what Justin Owen, the CEO of the conservative Beacon Center think tank, had to say:

We are pleased with today’s arguments in the ESA case and are optimistic that the Supreme Court will rule that this much-needed program can move forward. The local governments of Shelby County and Metro Nashville have stalled this program for nearly two years by claiming that they will suffer financially if parents are allowed to send their children to schools that better meet their needs. Even today, their attorney claimed that these students would burden the government financially if they were given the option to use an ESA to improve their education. Yet at the same time, the local governments admitted today in court that education funding in these two school districts would remain ‘roughly the same’ even if this program takes effect.

It’s terribly disappointing that these local governments continue to outright blame families seeking a lifeline from their failure to provide a quality education to these children. We are confident the Supreme Court will do what is right and look forward to their decision.”

And here is Shaka Mitchell, the the director of the Tennessee chapter of the American Federation for Children:

“We are optimistic the Tennessee Supreme Court will reverse the decision by the lower court and allow students in Shelby and Davidson Counties to access the Education Savings Account program. Thousands of families trapped in failing or low-performing schools had already signed up to participate when the program was halted as a result of the lawsuit.

School choice programs work. They empower parents with resources to find schools that better fit their unique needs and they foster innovation. These programs make both private and public schools create new and better options for all students. At American Federation for Children, we remain focused on students, not systems, and we hope for a favorable outcome in this case.”

Jury trials suspended in Tennessee through end of January

While Gov. Bill Lee has rejected a return to more stringent government measures in response to the worsening COVID-19 pandemic, the state Supreme Court has decided to delay all jury trials until at least the end of January.

Read the unanimous order here:

On March 13, 2020, in response to the COVID-19 pandemic, the Chief Justice of the Tennessee Supreme Court declared a state of emergency for the Judicial Branch of Tennessee government and activated a Continuity of Operations Plan for the courts of Tennessee. See Tenn. Const. Art. VI, § 1; Tenn. Code Ann. §§ 16-3-501 to 16-3-504 (2009); Moore-Pennoyer v. State, 515 S.W.3d 271, 276-77 (Tenn. 2017); Tenn. Sup. Ct. R. 49. This state of emergency constitutes a “disaster” for purposes of Tenn. Sup. Ct. R. 49 and Tenn. Code Ann. § 28-1-116.

On March 25, 2020, the Tennessee Supreme Court continued the suspension of in- person court proceedings and the extension of deadlines. On April 24, 2020, the Court modified the suspension of in-person court proceedings and extended deadlines. Under the Court’s April 24, 2020 order, the Court reviewed and approved comprehensive written plans received from the judicial districts in Tennessee to gradually begin the conduct of in-person court proceedings. On May 26, 2020, the Court extended the state  of emergency, but eased the restrictions on in-person court proceedings, including the lifting of the suspension of jury trials, subject to certain enumerated requirements. On July 9, 2020, the Court ordered the mandatory use of face coverings.

In light of the recent significant increase in the number of COVID-19 cases in Tennessee, particularly in the rural areas of the State, and the Court’s receipt of a number of reports of instances of failure to comply with the approved comprehensive written plans of judicial districts by judges, attorneys, and litigants, including in some instances the appearance in open court of attorneys and litigants who have tested positive for COVID-19, the Court considers it necessary to take additional steps to protect all participants in the judicial system and the public at large. As a result, the Court orders:

  1. The suspension of all jury trials from November 23, 2020, through January 31, 2021, subject only to exceptions which may be granted by the Chief Justice on a case-by-case basis.
  2. The previously approved comprehensive written plans of the respective  judicial districts continue in full force and effect.
  3. The Court’s July 9, 2020 mandatory face coverings order remains in full force and effect and continues to apply to all persons who enter the courthouse for court-related business.
  4. As required by the previous orders of this Court and by the approved comprehensive written plans of judicial districts, all court matters should be conducted by means such as video conferencing and telephonic conferences, if possible, as an alternative to in-court proceedings. The Court also re- emphasizes that all in-court proceedings should be scheduled and conducted in a manner to minimize wait-time in courthouse hallways.
  5. Judges and attorneys have an ethical obligation to strictly adhere to the approved comprehensive written plans of judicial districts and to the provisions of all applicable orders of this Court related to COVID-19.
  6. No participant in a proceeding, including judges, lawyers, parties, witnesses, clerks and court officers, shall appear in court or in a court-related proceeding, including a deposition, who has tested positive for COVID-19 until the participant has strictly complied with the requirements of the Centers for Disease Control regarding isolation of individuals who have tested positive for COVID-19.
  7. This order applies statewide to all courts and court clerks’ offices except administrative courts within the Executive Branch and federal courts and federal court clerks’ offices located in Tennessee.

Under the terms of this order, the courts of Tennessee remain open, consistent  with the Judicial Branch’s obligation to mitigate the risks associated with COVID-19. Judges should work with local law enforcement and other county officials to ensure that, to the extent possible, courthouses remain accessible to carry out essential constitutional functions and time-sensitive proceedings.

Except as otherwise provided herein, the provisions of the Court’s May 26, 2020 and July 9, 2020 orders shall continue to govern, and the provisions of this order shall remain in effect until further order of this Court.

This order is intended to be interpreted broadly for protection of the public from risks associated with COVID-19.

It is so ORDERED.

Alexander supports effort to promptly vote on Ginsburg replacement

U.S. Sens. Marsha Blackburn (R-Brentwood) and Lamar Alexander (R-Maryville) attend a Tennessee Titans event in Nashville on Dec. 13, 2019 (Erik Schelzig, Tennessee Journal)


U.S. Sen Lamar Alexander (R-Maryville) wants to promptly take up the confirmation of President Donald Trump’s nomination to succeed the Supreme Court Justice Ruth Bader Ginsburg even though he was among Republicans who argued against taking up Democratic President Barack Obama’s nomination to fill a high court vacancy in 2016.

“No one should be surprised that a Republican Senate majority would vote on a Republican President’s Supreme Court nomination, even during a presidential election year,” Alexander said. “The Constitution gives senators the power to do it. The voters who elected them expect it. Going back to George Washington, the Senate has confirmed many nominees to the Supreme Court during a presidential election year. It has refused to confirm several when the President and Senate majority were of different parties. Senator McConnell is only doing what Democrat leaders have said they would do if the shoe were on the other foot.” 

“I have voted to confirm Justices Roberts, Alito, Sotomayor, Gorsuch and Kavanaugh based upon their intelligence, character and temperament. I will apply the same standard when I consider President Trump’s nomination to replace Justice Ginsburg,” he said.

Here’s what Alexander said in 2016:

Tennessee reaction to passing of Ruth Bader Ginsburg

The passing of U.S. Supreme Court Justice Ruth Bader Ginsburg on Friday was met with condolences from across the country and within Tennessee.

While most delivered laudatory commentary about Ginsburg’s trailblazing career, Republican U.S. Senate Candidate Bill Hagerty wasted little time in calling on President Donald Trump to quickly nominate a conservative replacement on the nation’s highest court. Senate Republicans in 2016 famously refused to take up then-President Barack Obama’s nomination to succeed deceased Justice Antonin Scalia, who had died in February of that year, because of the upcoming election.

Here is some reaction from Tennessee officials:

President Donald Trump can — and should — nominate a constitutionalist to fill this Supreme Court vacancy; the future of our nation for generations to come depends on it.” 

— Republican U.S. Senate nominee Bill Hagerty of Nashville.

Justice Ginsburg was a smart, talented trailblazer who paved the way for women in the judiciary. She worked hard to achieve prominence on her own merit, and I thank her for her service to our country. 

— U.S. Sen. Marsha Blackburn (R-Brentwood)

She made a major difference in the lives of all Americans, but particularly in the lives of the young women who just want a chance to compete on a level playing field and pursue their dreams.

— U.S. Rep. Steve Cohen (D-Memphis)

Justice Ginsburg brought decency, intelligence and principle to the Supreme Court. Her life inspired many Americans, especially young women. Her service to our country deserves great respect.

U.S. Sen. Lamar Alexander (R-Maryville)

The Nashville Post’s Stephen Elliott dug out some comments from Alexander dating back to political fight over the 2016 Supreme Court vacancy:

Judge orders state to include specific guidance on absentee ballot eligibility due to COVID-19

A judge has ordered Tennessee Secretary of State Tre Hargett’s office to include wording in absentee ballot application forms to make clear that people at greater risk from contracting COVID-19 are eligible to vote by mail.

Nashville Chancellor Ellen Hobbs Lyle’s ruling Tuesday came after the state Supreme Court agreed to vacate the injunction she had imposed earlier when the state took what the chancellor called the “extraordinary step of a last-minute concession during oral arguments” that people with a special vulnerability to COVID-19 (or those who care for people who do) had a valid reason to cast absentee ballots. Had the state taken this position earlier, Lyle said, the case would have been settled long before it reached the Supreme Court.

The high court’s ruling had instructed Hargett’s office to “ensure that appropriate guidance is provided to Tennessee registered voters” about the state’s new stance. While Hargett issued a press release that included reference to people with a special vulnerability to COVID-19 being able to vote by mail, the new application form included no such information.

As such, Lyle ruled the application forms should now include the following excuses for people seeking to vote by mail:

I am hospitalized, ill or physically disabled and unable to appear at my polling place to vote (this includes persons who have underlying medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it).

I am a caretaker of a hospitalized, ill or physically disabled person (this includes caretakers for persons who have underlying medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it).

Lyle also deemed that other materials issued by the state on the subject of absentee balloting — such as language highlighted at the bottom of the form offering a $1,000 reward for information leading to a conviction for voter — to be “confusing and misleading.” But the chancellor said those details fell outside of her purview.

Hargett’s office was critical of the decision.

“It is ironic to us that the same Chancellor who chastised us for changing the form is now upset because we did not change the form,” Hargett spokeswoman Julia Bruck said in an emailed statement. “The Chancellor is legislating from the bench.”

Hedy Weinberg, the exeutive director of the state chapter of the American Civil Liberties Union, lauded the decision:

The court’s ruling today will ensure that people with special vulnerability to COVID-19 and their caretakers know exactly how to request mail-in ballots. The state’s delay in making this information clear is yet another example of voter suppression in Tennessee. Our state should be working to make it as easy as possible for people to vote, not creating obstacles at every turn and requiring a court order to fix them. We applaud the court for compelling the state to make Tennesseans’ voting rights clear and to do so quickly.

Read the ruling here.

Supreme Court: Reversal on vulnerable voters makes absentee balloting ruling unnecessary

The state Supreme Court has vacated a lower court’s temporary injunction allowing anyone fearful of contracting COVID-19 to cast absentee ballots after the state reversed itself to say it considers people with an underlying vulnerability to the virus — or those caring for someone who does — to be eligible to vote by mail.

State Election Coordinator Mark Goins told Associated Press reporter Jonathan Mattise in May that “in consultation with the Attorney General’s office the fear of getting ill does not fall under the definition of ill.”

But under questioning during oral arguments in the Supreme Court last week, Janet Kleinfelder of the AG’s office conceded that voters’ underlying conditions or of those living with them would be allowed to vote by mail.

“If the voter has made that decision, then yes, they may vote absentee,” Kleinfelter said.

Justice Cornelia Clark wrote in the majority opinion:

At oral argument before this Court, the State conceded that, under its interpretation […] persons who have underlying medical or health conditions which render them more susceptible to contracting COVID-19 or at greater risk should they contract it (“persons with special vulnerability to COVID-19”), as well as those who are caretakers for persons with special vulnerability to COVID-19, already are eligible to vote absentee by mail. We hold that injunctive relief is not necessary with respect to such plaintiffs and persons. We instruct the State to ensure that appropriate guidance, consistent with the State’s acknowledged interpretation, is provided to Tennessee registered voters with respect to the eligibility of such persons to vote absentee by mail in advance of the November 2020 election.

The high court said the lower court erred in extending the order to people who have no specific vulnerability to COVID-19.

Supreme Court turns down state’s effort to halt expanded absentee voting amid pandemic

The Tennessee Supreme Court has declined to immediately halt a judge’s order that the state must allow any voters concerned about being infected by COVID-19 to cast their ballots by mail. But the state’s highest court did agree to directly take up the full legal challenge of the ruling, bypassing the intermediate Court of Appeals.

Nashville Chancellor Ellen Hobbs Lyle earlier this month found the state’s position that fear of coronavirus infection was not a sufficient reason to request an absentee ballot presented an “unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.”

When state election officials responded by creating a new category on the application form for those worried about COVID-19 rather than have it covered by the existing medical exception, Lyle called out the state for failing to adhere to her original order.

“Shame on you for not following that procedure and just taking matters into your own hands,” Lyle said in a recent hearing.

While the expedited appeal will speed up the state’s legal challenge, it appears unlikely the high court will decide the case before the Aug. 6 primary. Absentee ballots are already being sent out, and in-person early voting begins on July 17.

Hagerty, Sethi denounce Supreme Court decision blocking Trump from ending DACA

Then-Gov. Bill Haslam, Rep. Mark White, and Sen. Todd Gardenhire pose for a photo in March 2018 with supporters of offering instate tuition for students whose parents brought them to country illegally as children. (Erik Schelzig, Tennessee Journal)

Republican U.S. Senate candidates Bill Hagerty and Manny Sethi are denouncing a decision by the U.S. Supreme Court’s decision that President Donald Trump can’t immediately dismantle the Deferred Action for Childhood Arrivals, or DACA, program from children brought to the country without legal authorization.

The opinion was written by Chief Justice John Roberts, a Republican appointee. He was joined by the high court’s four more liberal members.

Here’s the statement from Hagerty:

The Supreme Court’s decision to prevent the Trump Administration from dismantling DACA, an immigration policy created via Executive Order by the Obama Administration is appalling and another reminder as to why we need to confirm more constitutionalist judges to the federal bench. We need justices and judges who will not legislate from the bench, but respect the Constitution. Joe Biden and a Democrat Senate majority would confirm nominees who will get it wrong every time. In the Senate, I will support constitutionalist judges and work with President Trump to fix our broken immigration system and build the wall at our southern border.

And here is Sethi:

This is a travesty: My parents waited seven years to immigrate to America legally, and they gave back to the community here in Tennessee. It’s incredibly offensive to me as a first generation American to see other people break the law get benefits, and their children be rewarded for it. Congress needs to fix the system by building the wall, ending chain biased migration, and pausing all legal immigration until we get our economy back on track.

Meanwhile, Sen. Lamar Alexander (R-Marville), the man Hagerty is hoping to replace, struck a different tone about the decision:

The Supreme Court’s decision will provide temporary relief to current DACA recipients, but it is clear to me that Congress must act to fix our broken immigration system. Congress should work together to achieve a permanent result both for DACA recipients and border security, and any other improvements to legal immigration that we can agree on—this means something the Senate and the House can pass and that the president will support.

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