Tennessee: Constitutional showdown over recusal statutes?

Greetings TBA Today readers!

According to this post from Gavel Grab, the Tennessee legislature is considering a legislative enactment regarding judicial recusal. For prior blog posts on events in Tennessee, click here and here. For a review of all recent efforts to make changes to Codes of Judicial Conduct, see Issue 5:31.

The Gavel Grab post cites this Knoxville News Sentinel article, as follows:

Legislators are eyeing repeal of the state law that allows keeping the admonishments wayward judges receive secret and imposing stricter rules concerning when judges must bow out of a case when accused of a conflict of interest.

Changing the rules for recusal of a judge, which are now established by the state Supreme Court, also is criticized on policy grounds. But it could also be a violation of the state constitution, according to Chris Craft, presiding judge of the Court of the Judiciary (COJ).

As I noted in my article “’The Legislature Must Save the Court From Itself?’: Recusal, Separation of Powers, and the Post-Caperton World” in the Drake Law Review, it is not unheard of for legislatures to try and impose by law recusal standards for state courts. Moreover, it is also not unheard of for the same courts to strike down the laws as a violation of the state constitution. I suggested four possible outcomes: Cooperation, Co-option, Comity, and Conflict.

Missouri had a similar instance in the late 1990s which was decidedly in the Conflict category. There, the legislature tried to expand a 1978 recusal statute (Mo. Ann. Stat. 105.464).

The expansion was struck down by the state’s Supreme Court on the grounds that its “‘general superintending control over all courts and tribunals’” and power to “‘establish rules relating to the practice, procedure, and pleading for all courts,’” rendered the expansion a “violat[ion of] constitutional principles concerning separation of legislative and judicial functions.”  (Weinstock v. Holden, 995 S.W.2d 408, 410–11 (Mo. 1999) (per curiam)).

A few weeks after Weinstock was handed down, the legislature adopted a repeal of the expansion, but kept in place the original 1978 statute that imposed criminal sanctions for judges who heard cases in which they were related to a party.

So, will Tennessee end up in Cooperation, Co-option, Comity, or Conflict? We’ll see when the legislature comes back on January 10 or even earlier if a bill is filed before session starts.