Supreme Court

Nashville to Supreme Court: You blew it on voucher ruling

Gov. Bill Lee speaks at a press conference in Nashville on March 16, 2020. (Erik Schelzig, Tennessee Journal)

Nashville Mayor John Cooper’s administration is asking the state Supreme Court to review its 3-2 decision upholding Gov. Bill Lee’s signature school voucher law. The high court ruled the Education Savings Accounts didn’t violate the home rule provision in the state constitution that protects jurisdictions from being singled out without local buy-in because the law applies to school districts and not county governments. But the Cooper administration says the justices didn’t take into account that both school systems were merged into the new metropolitan government when voters approved the merger of Nashville and Davidson County in 1962.

“Because Nashville’s public schools are part of Metro, the ESA Act applies directly to Metro, and the state constitution’s Home Rule Amendment therefore also applies, even under the Court’s reasoning,” according to the Cooper administration.

It’s unclear whether the high court will entertain Nashville’s push for reconsideration. Appeals Judge Skip Frierson was sitting in on the case after the death of Justice Connie Clark and turned out to be the tiebreaker in the case.

Here’s the release from Mayor Cooper’s office:

NASHVILLE, TENN. – Today, Metro Nashville filed a petition asking the Tennessee State Supreme Court to review its recent 3-2 decision that found the state’s school voucher program, known as the Education Savings Account Act (ESA Act), to be constitutional, effectively clearing the way for it to move forward. Metro Nashville previously challenged the law’s constitutionality based on the “Home Rule Amendment,” which says that an act of the Legislature that is local in its form or effect, applicable to a county or municipality in its governmental or proprietary capacity, is void, unless approved by a two-thirds vote of the local legislative body or by local referendum.

Alongside key Nashville leaders for our public schools, Mayor John Cooper will host a press conference tomorrow to talk more about this filing and supporting Metro Nashville Public Schools (MNPS). Details are below.

“Great public schools require consistent prioritization, because our kids’ future is our most critical investment,” said Mayor John Cooper. “The state already provides Metro Nashville Public Schools far less funding per student than almost every other county in Tennessee, and now a state voucher program threatens to syphon off even more money away from improving public schools and into the hands of private schools. We hope the Court will consider MNPS’ status as the public school system for both Nashville and Davidson County, and not allow the state to direct taxpayer money away from our schools without our consent.”

The court’s majority opinion, issued on Wednesday May 18th , found that the ESA Act doesn’t violate the “Home Rule Amendment” because “the Act regulates or governs the conduct of the local education agencies and not the counties.” In other words, the court ruled that the ESA Act applies to school districts, not counties, and therefore local-government protections in our state constitution do not apply.

Metro Nashville is asking the Court to review the ruling because the reasoning provided by the majority opinion is wrong, particularly as it applies to Nashville. The newly filed petition argues that as a metropolitan government, Nashville and Davidson County included their combined school systems in the new metropolitan government when our citizens voted in 1962 to consolidate and adopt the Metro Charter.

Because Nashville’s public schools are part of Metro, the ESA Act applies directly to Metro, and the state constitution’s Home Rule Amendment therefore also applies, even under the Court’s reasoning.

“Metro Nashville, through the Metro Council or its voters, has the legal right to say whether taxpayer funds should be spent on private schools,” said Wallace Dietz, Director of Law for Metro Nashville.  “Our state constitution demands no less. We don’t believe the Court’s reasoning for allowing the state’s voucher program to proceed should apply to Nashville, since we are a metropolitan government with a combined city and county school system.”

Dietz continued: “Additionally, The Court concluded that the Home Rule Amendment does not apply to the ESA Act because the face of the Act addresses school districts only and does not impose obligations on counties. Instead, the Act triggers existing county funding obligations by forcing school districts to include students participating in the ESA program in their enrollment counts, even though the students are not attending public schools. This ruling conflicts with other Tennessee Supreme Court cases applying the Home Rule Amendment to bills that did not on their face require counties to do anything, but triggered obligations in existing law.”

Additional background: For much of Tennessee’s history, local governments were viewed simply as creatures of the Legislature, subject to its control at will. That one-sided balance of power shifted dramatically in 1953 when Tennessee held a limited Constitutional Convention that focused primarily on state encroachment on local prerogatives.  The main concern was the Legislature’s historic abuse of local legislation, the passing of laws that impacted only one or a small number of counties.  The Convention overwhelmingly approved the Home Rule Amendment to the Tennessee Constitution.  The Home Rule Amendment was approved by Tennessee voters in 1953 and has been a part of our state constitution ever since.

Lee: Unclear when voucher program can get off the ground following high court ruling

Gov. Bill Lee delivers his State of the State Address on Jan. 31, 2022. (Erik Schelzig)

Republican Gov. Bill Lee is hailing the Supreme Court’s decision upholding school vouchers but says “a lot of steps” are still required before the program allowing parents in Nashville and Shelby County to spend taxpayer dollars on private school tuition can go live.

“Once we determine the speed with which the court will make its final decisions, then we can move forward with the particulars to make sure this works and fits, and how it is that we roll it out,” The Associated Press quoted the governor as saying on Friday.

The Supreme Court ruled in a 3-2 decision that the voucher program doesn’t violate the state constitution’s home rule protections, which prevent the General Assembly from passing bills targeted at specific counties without local buy-in. The voucher law affects school districts — which aren’t covered by the home rule provision — and not the counties that fund them, the high court ruled.

Despite the voucher program being frozen since 2019, the Lee administration has included a recurring $29 million item in the budget to cover its costs in the event legal challenges were turned back. But the money has been dedicated toward other priorities, including for the spending plan for the budget year beginning on July 1.

It remains to be seen how much appetite lawmakers have to revisit the voucher question. Of the 51 House members who voted for the final version of the bill in 2019 (just one more than the constitutional minimum), only 37 are up for re-election this fall. Here’s the list of voucher backers who will no longer be around next year:

Mike Carter (R-Ooltewah). Died of pancreatic cancer in May 2021.

Glen Casada (R-Franklin). Not running again this year. Lost bid for Williamson County clerk earlier this month.

Michael Curcio (R-Dickson). Not running again this year.

John DeBerry (D-Memphis). Lost re-election bid as an independent in 2020 after state Democrats decided he couldn’t run in their primary. Now in the Lee administration.

Bill Dunn (R-Knoxville). Didn’t run again in 2020. Now in the Lee administration.

Mark Hall (R-Cleveland). Running for state Senate this year.

Matthew Hill (R-Jonesbough). Lost Republican primary in 2020.

Timothy Hill (R-Blountville). Didn’t run again in 2020. Lost bid for Congress.

Andy Holt (R-Dresden). Didn’t run again in 2020. Now in the Lee administration.

Bill Sanderson (R-Kenton). Stepped down in August 2019.

Jerry Sexton (R-Bean Station). Not running again this year.

Robin Smith (R-Hixson). Resigned in March after pleading guilty to participating in a kickback scheme.

Rick Tillis (R-Lewisburg). Lost Republican primary in 2020.

Micah Van Huss (R-Gray). Lost Republican primary in 2020.

Two other representatives abstained when the vote was initially recorded, but later changed asked the clerk to have their votes changed to yes. The moves are considered a formality because they only be accepted if it doesn’t change the outcome. Neither won’t feature in the next General Assembly:

Martin Daniel (R-Knoxville). Didn’t run again in 2020.

Brandon Ogles (R-Franklin). Not running again this year.

Redistricting lawsuit tests judicial philosophy on Tenn. Supreme Court

State Attorney General Herbert Slatery, right, speaks with Rep. Jerry Sexton (R-Bean Station) on the House floor in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

When the applicants for a recent state Supreme Court vacancy were being interviewed, most went out of their way to declare a dedication textualism — the judicial philosophy focusing on the words as written in law books or the constitution rather than the intent behind why they were drafted that way.

The state’s highest court has agreed to take on state’s challenge of a recent ruling throwing out new state Senate maps because lawmakers ignored a provision in Tennessee Constitution that multiple districts within a single county must be consecutively numbered. Under the plan passed in January, Nashville would be home to districts 17, 19, 20, and 21 — meaning three of four seats would come up for election in the same year.

Here is what the Tennessee Constitution says on the matter:

In a county having more than one senatorial district, the districts shall be numbered consecutively.

A three-judge panel made up of two Republicans and one Democrat determined that while state Attorney General Hebert Slatery’s office had made a “detailed and nuanced” argument for why lawmakers had arrived at the House maps, the record did not include a sufficient explanation for why federal law or the U.S. Constitution “mandated the non-sequential numbering” of Senate districts.

Slatery’s office in a legal response to the lawsuit backed by the state Democratic Party argued the case should be thrown out for the plaintiff’s lack of standing, the absence of harm to voters, and because opponents had taken too long sue.

“The consecutive numbering of senatorial districts is solely an administrative distinction,” according to the state.

Supporters also argued past failures to consecutively number districts had gone unchallenged, though the historical record suggests otherwise.

The state Supreme Court has agreed to skip the intermediate Court of the Appeals and take up the case directly. Plaintiffs have until 1 p.m. Central on Monday to file their response the government’s motions to overturn the ruling and to lift an injunction on implementing the new maps while the challenge is underway.

UPDATE 1: The court’s newest justice is former associate solicitor general Sarah Campbell. She said during confirmation hearings she would recuse herself from cases involving legal matters she had personally bee involved in while at the AG’s office. A courts spokeswoman says Campbell did not participate in the legal advice given to Republican lawmakers during the redistricting debate.

Campbell previously recused herself from an appeal of the state’s school voucher law and by a man seeking consideration of early release from his life sentence for first-degree murder when he was 16 years old.

UPDATE 2: Plaintiffs have filed their motions. Here’s an excerpt:

In setting out the supposed parade of horribles that will flow from the injunction and touting the State’s compelling interest in the integrity of its election process, not once do Defendants acknowledge the bedrock requirement that the General Assembly must comply with the Tennessee
Constitution in enacting its voting district maps. This is a striking omission. Indeed, the State’s compelling interest in its election process is rendered meaningless if the State can run roughshod over the Constitution simply because fixing the problem is not convenient.

Lawmakers confirm Campbell appointment to state Supreme Court

A joint convention of the General Assembly on Thursday approved Gov. Bill Lee’s nomination of Sarah K. Campbell to the Tennessee Supreme Court.

Here’s a release from the Administrative Office of the Courts:

Sarah Keeton Campbell is officially the newest justice on the Tennessee Supreme Court. Justice Campbell was confirmed today during a joint session of the Tennessee General Assembly, the final step in the appointment process, and took the oath of office.  She was nominated by Governor Bill Lee on January 12 after being one of three candidates out of 11 applicants recommended by the Governor’s Council for Judicial Appointments.

Justice Campbell fills the vacancy created by the passing of Justice Cornelia A. Clark on September 24, 2021. She is Governor Lee’s first Supreme Court appointment and the second justice to navigate the confirmation process that was enacted in 2016 after Tennessee voters approved a ballot initiative in 2014.

“Sarah has created a truly remarkable and unique career focused almost exclusively on appellate work with a strong passion for public service,” Chief Justice Roger A. Page said. “The Court is thrilled to welcome her to the bench as a colleague. She is accomplished and determined, yet humble and personable, and I am sure she will serve the citizens of Tennessee well.” 

Strong Tennessee Values

Justice Campbell was born in LaFollette in Campbell County.  Her extended family still lives in Campbell County and Scott County, where her grandparents made their living working on farms, in factories, and on the railroad. Her father was the first in her family to attend college, and the family moved to Rogersville in Scott County when Justice Campbell was beginning middle school. She graduated from Cherokee High School in Rogersville, where her parents and brother, a local attorney and municipal judge, still reside.

“My parents and grandparents taught me to work hard, live with integrity, and treat everyone with fairness and respect,” Justice Campbell said. “I am proud of my rural East Tennessee roots.  The values I learned there shaped who I am today.”

Justice Campbell attended the University of Tennessee, Knoxville, on a full-tuition merit scholarship and was recognized as a Torchbearer, the university’s highest student honor.  While a student at UT, she was elected president of the Student Government Association; served as chairperson of the Undergraduate Academic Council; and was a founding member of the Baker Scholars Program. She graduated from the College Scholars program with emphases in political science, educational policy, and Spanish.

“I did not have any lawyers in my family, but I was always drawn to public service,” Justice Campbell said. “I developed an interest in the law while at UT and decided to attend law school with the aim of using my legal education to improve my community.”

Justice Campbell was awarded a full-tuition merit scholarship to Duke University School of Law, where she served as managing editor of the Duke Law Journal, was a member of moot court, and participated in the Appellate Litigation Clinic. She graduated magna cum laude and in the top 10 percent of her class. While at Duke, she also earned a master’s degree in Public Policy.

A Focus On Appellate Law

Justice Campbell quickly realized the intense legal research, analysis and writing required when cases are appealed after trial or an initial court decision was her niche.  After graduating from law school, she secured a federal clerkship with Judge William H. Pryor Jr. on the U.S. Court of Appeals for the Eleventh Circuit. That position was followed by a clerkship with Justice Samuel A. Alito, Jr. on the Supreme Court of the United States. There are approximately 36 U.S. Supreme Court clerkships each year, and obtaining a clerkship is extremely competitive with candidates with the highest credentials from the most prestigious law schools applying.

“My clerkships were formative experiences. I was fortunate to clerk for two of the finest jurists in the country. Those experiences allowed me to refine and strengthen my research and writing skills and gain an appreciation for the limited yet important role of a judge in our constitutional structure,” Justice Campbell said. “I found it very rewarding to work on the complicated legal issues that came before the appellate courts.  It was then that I developed an interest in becoming a judge.”

After practicing in Washington D.C. at Williams & Connolly, LLP, Justice Campbell felt the time was right to come home to Tennessee. For the past six years, she has worked in the Tennessee Attorney General’s Office, most recently as the Associate Solicitor General and Special Assistant to the Attorney General. During that time, she has represented her home state in both federal and state appellate courts, handling a wide range of criminal, civil, and constitutional law issues.

“Serving on the Tennessee Supreme Court is the opportunity of a lifetime,” Justice Campbell said. “I thank Governor Lee for putting his trust in me to serve Tennesseans in this capacity, and I also thank the General Assembly for confirming me to the position. I do not take the task before me lightly. The job of a judge is to decide cases fairly and impartially by applying neutral, objective principles.  That is how I will approach each case that comes before me.”

Family & Community Involvement

Justice Campbell met her husband Scott while they were students at the University of Tennessee. The couple currently resides in Nashville and have three children.   Mr. Campbell has dedicated his career to public education, serving both as a teacher and principal.  The family belongs to Christ Presbyterian Church.

Justice Campbell is a member of the Tennessee Bar Association, the TBA Leadership Law Alumni Association, the American Law Institute, and the Federalist Society.  She has been an invited speaker to dozens of continuing legal education courses focused on updates and reviews on state and federal appellate law.

A public investiture ceremony will be planned for the spring.

New TNJ edition alert: How the GOP’s new congressional, state Senate maps shake out in Tennessee

It all fits together somehow.

The latest print edition of The Tennessee Journal is out. Here’s what’s in it:

 — From one into three: Congressional remap cracks Dem stronghold of Nashville.

— State Senate redistricting solidifies current GOP seats.

— Read state Supreme Court nominee Sarah Keeton Campbell’s answers about finding meaning in messy legislation, how oral arguments influence appellate cases, and what she would take into consideration in appointing a new attorney general.

— Legislative roundup: Senate Ethics Committee to consider ousting a sitting member before pending legal issues come to conclusion, treasurer of anti-Tillis PAC says she registered group at the behest of Cade Cothren.

Also: A forgiveness fest between Justin Jones and Glen Casada, the Memphis police chief has her gun stolen out of her husband’s Porsche, and Bud Hulsey gets a new phone.

As always, access the your copy of the TNJ here.

Or subscribe here.

TNJ exclusive: Lee chooses Campbell for Tenn. Supreme Court

Republican Gov. Bill Lee is naming associate state solicitor general Sarah Campbell to the bench of the Tennessee Supreme Court, The Tennessee Journal has learned.

Campbell, 39, is an associate solicitor general and special assistant to state Attorney General Herbert Slatery. She grew up in Rogersville before attending Duke law school and going on to clerk for U.S. Supreme Court Justice Samuel Alito. She later worked for the Williams & Connolly law firm in Washington before joining the AG’s office in 2015.

Campbell has represented the state in appeals of federal rulings regarding Tennessee laws on abortion, absentee ballots, and lethal injections. Her references included Solicitor General Andrée Blumstein and state House Judiciary Chair Michael Curcio (R-Dickson).

UPDATE: Lee’s office has made it official.

“Sarah is a highly accomplished attorney and brings valuable experience from the federal level, including the U.S. Supreme Court,” Lee said in a release. “Her commitment to an originalist interpretation of the state and federal constitutions will serve Tennesseans well. She is well-suited for the state’s highest court and I am proud to appoint her to this position.”

If confirmed with by the General Assembly (which is a largely forgone conclusion), Campbell will succeed Justice Connie Clark, who died in September. Campbell is Lee’s first appointment to the Supreme Court. Clark and Sharon Lee were appointed by Democratic Gov. Phil Bredesen, while his Republican successor Bill Haslam named Jeff Bivins, Holly Kirby, and Roger Page to the bench.

Here are some of Campbell’s answers to the Governor’s Council for Judicial Appointments before she was named as a finalist alongside state Court of Appeals judges Kristi Davis and Neal McBrayer.

Should legislative intent in the enactment of state laws factor into judicial rulings?
Campbell:
There are a lot of problems with legislative history. That’s not the law. . . . Particularly when legislative history is cherry-picked in a way to say this is what the sponsors were trying to do. It completely ignores that there were those other interests on the other side that were also being taking into account in that legislative process. All we can say for sure is what language is in the statute.

Who is your judicial role model?
Campbell: My judicial philosophy is very similar to Justice Samuel Alito and Judge William Pryor [of the 11th Circuit, both of whom she clerked for]. I am an originalist and textualist, I believe in judicial modesty and humility. . . to know what the judiciary’s role is vis-à-vis the other branches of government, and not to stray into roles other than what the constitution actually assigns the judiciary.

Does your youth affects your qualifications?
Campbell: Look at the quality and breadth of my experience so far in my career, rather than my age or just the number of years I have been practicing. If you look at the number of cases and sorts of cases I have handled, particularly in the attorney general’s office, where I have been responsible for making the strategic calls and supervising teams of attorneys in cases that are both legally challenging and of significant importance to the state and citizens. That sort of experience sets me apart compared with other lawyers who are my age.

What is the Federalist Society’s significance?
Campbell: One of the ways in which my views became a lot clearer and more nuanced is because at my law school there was a Federalist Society chapter that had great events. At a lot of law schools, particularly elite law schools, there isn’t much intellectual diversity.

How would you deal with negative media attention in high-profile cases?
Campbell: As an appellate judge, my review would be limited to the record that’s before me in that case. And any material outside of that record, whether it’s been media reports, social media, or whatever the case may be, that would be improper for an appellate judge to consider.

Celebration for ex-Haslam adviser hosted by Haslam at Haslam Center

State Attorney General Herbert Slatery, right, speaks with Rep. Jerry Sexton (R-Bean Station) on the House floor in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

Bill Haslam is hosting a reception for state Attorney General Herbert Slatery, the former governor’s onetime legal adviser, at the Tennessee State Museum on Wednesday. The event celebrates an award Slatery has received from the National Association of Attorneys General. The museum building, incidentally, was recently named the Haslam Center.

Cohosting the event is Gif Thornton, a lobbyist and managing partner of the Adams & Reese law firm. He also chairs the Governor’s Council for Judicial Appointments, which recently submitted a slate of three state Supreme Court finalists for Gov. Bill Lee to choose from.

Tennessee is the country’s only state where the attorney general is chosen by the Supreme Court. Slatery’s eight-year term is up this fall, but he has declined to say whether he will seek another appointment to the job.

Here’s the invite to the reception:

New TNJ edition alert: Supreme Court finalists in their own words, Little Debbie lawsuit

The Tennessee Supreme Court building is seen in Nashville on Dec.8, 2021. (Erik Schelzig, Tennessee Journal)

The latest print edition of The Tennessee Journal is out. Here’s what’s in it this week:

— We spent two days at judicial selection hearings so you didn’t have to. Here’s what the finalists for the Supreme Court had to say about legislative intent, their judicial role models, and the significance of the Federalist Society.

— Little Debbie snack maker files lawsuit to block new Pharmacy Benefit Manager law championed by House Speaker Cameron Sexton.

— Of the state’s 15 largest counties, all but two are moving to partisan school board nomination contests.

— Indicted senators update: Kelsey seeks delay for federal campaign finance trial, prosecutors seek to seize Robinson property following conviction.

Also: The state’s revenue collection surge continues, racial tension on the MTSU board, and a difference in perception about automotive incentives in the Beacon Center’s Pork Report.

As always, access your copy of the TNJ here or subscribe here.

Read up on your state Supreme Court finalists here

The Tennessee Supreme Court building is seen in Nashville on Dec.8, 2021. (Erik Schelzig, Tennessee Journal)

After two days of interviews, the Governor’s Council for Judicial Appointment whittled down the list of nine applicants to three for Gov. Bill Lee to choose from.

You can read the finalists’ applications here:

Sarah Campbell, associate solicitor general and special assistant to state Attorney General Herbert Slatery.

Kristi M. Davis, state appeals judge.

Neal McBrayer, state appeals judge.

The vacancy was created by the passing of Justice Connie Clark in September.

Big shakeup in Supreme Court sweepstakes as Lee to hire Skrmetti as legal counsel

The Tennessee Supreme Court building is seen in Nashville on Dec.8, 2021. (Erik Schelzig, Tennessee Journal)

Just as the Governor’s Council for Judicial Appointments was getting ready to interview candidates for a state Supreme Court vacancy on Wednesday, The Tennessee Journal has learned a major contender is dropping out to instead become Gov. Bill Lee’s top legal adviser.

Jonathan T. Skrmetti, the chief deputy to state Attorney General Herbert Slatery will succeed Lang Wiseman, who stepped down on Friday.

Skrmetti is a Harvard law graduate who worked for the civil rights division of the U.S. Justice Department before serving as an assistant U.S. attorney in Memphis from 2011 to 2014. While later working at Butler Snow, Skrmetti was a member of the legal advisory board for the Beacon Center, the conservative think tank and advocacy group. Hired as the No. 2 position in the AG’s office in 2018, he spearheaded the state’s efforts to negotiate a $26 billion national settlement with opioid producers and distributors.

Skrmetti’s withdrawal from the Supreme Court application process leaves nine candidates for job. The Council for Judicial Appointments will narrow the field down to three for Lee to choose from.

UPDATE: The governor’s office has made it official:

“Jonathan is a dedicated public servant and highly qualified legal professional,” Lee said in a release. “He will bring significant experience and tremendous value to our work on behalf of Tennesseans, and I am confident he will continue to serve our state with integrity.”