Should the Tennessee Supreme Court decide if the governor is incapacitated? Constitutional amendment considers the issue.

February 12th, 2013 by Bill Raftery Leave a reply »

Tennessee may join 25 other states in letting the supreme court play a role in gubernatorial incapacity determinations.

Under SJR 103 the Attorney General would (in consultation with the Secretary of State, Comptroller of the Treasury, and Treasurer) petition the Supreme Court seeking a declaration the governor was “unable to perform the powers and duties of the office.” The court would rule on the petition and could remove the governor, who could then re-petition the Supreme Court for reinstatement.

If the Governor failed to file such a petition within 30 days of being temporarily removed, the Attorney General, Secretary of State, Comptroller of the Treasury, and Treasurer could decide themselves (apparently with no input by the Supreme Court) that the Governor was permanently removed from office.

What makes the Tennessee proposal interesting is that a similar effort was undertaken in Illinois and Indiana. As I noted in Gubernatorial Removal and State Supreme Courts, there are at least two instances in which Supreme Courts have had to weigh in on gubernatorial disability (the article lists the 25 states that currently give the supreme court or chief justice some role in the disability process, for those interested).

The more contentious instance was in 2008, when Illinois Governor Rod Blagojevich was investigated, and later impeached and sent to prison, on corruption charges. At the time the state’s Attorney General attempted to have the Supreme Court declare the governor unable to serve due to a “disability”. The state’s constitution does provide for such a review by the state’s supreme court, but the court declined to entertain the case and the legislature impeached and removed Blagojevich shortly thereafter.

The other usage was in the Indiana in 2003. Governor Frank O’Bannon suffered a stroke on September 8 of that year. The Supreme Court, at the request of legislative leaders and O’Bannon’s own family, issued an order on September 10 that the Governor was “unable to discharge the powers and duties of the office”. O’Bannon died on September 13.