Tennessee: Unable to come up with way to confirm judges in 2015, legislature starts 2016 with a conference committee

The Tennessee legislature is starting its 2016 session picking up where the 2015 session ended with regards to judicial confirmations. As discussed here, here, and here the issue has proven very complex and a conference committee has already been appointed to try and hash out the differences (h/t TBA Today).

As a review, voters in 2014 approved Amendment 2, a constitutional amendment changing the way Tennessee appellate judges are selected. The amendment called for governors to appoint individuals to “be confirmed by the Legislature” and further provided that “confirmation by default occurs if the Legislature fails to reject an appointee” within a set time period. There were a litany of confirmation methods proposed in 2015, none of which were enacted. A conference committee appointed at the end of the 2015 failed to come up with a plan before time ran out on the session.

Several issues were at play in the various bills and amendments.

  1. Joint session/joint vote? One possible mechanism for confirmation would be for the 99 member House and the 33 member Senate to vote jointly. A joint vote could mean an appointee being confirmed with House-votes only; the entire Senate and most of the House could vote against and still come up with a majority of the 132 member joint session (67 House members in favor > 32 House + 33 Senate rejecting). This particular formulation was favored by the House, but the Senate rejected it.
  2. 1-chamber veto? If the chambers voted separately, as the Senate adopted plan called for last session, would both chambers have to vote “no” to reject an appointee? Would rejection by 1-chamber be enough to scuttle the appointee? A 1-chamber veto could mean a simple majority (17) of the Senate rejecting an appointee favored by the rest of the Senate (16) and the entire House (99).
  3. 1-chamber stall? Recall that confirmation by default occurs if the “Legislature fails to reject”. Under this scenario even if one chamber unanimously voted “no” on an appointee, the other chamber could simply not take a vote, let the clock run out, and the appointee would be confirmed by default. In a reverse of the 1-chamber veto, the 1-chamber stall could mean 17 senators stalling out 99 House members + 16 other members of the Senate who want to reject an appointee. The House balked on this point in particular.
  4. Majority of chamber or all members? Would a “yes” vote require a majority of all members of the chamber present, or “all the members to which each house is entitled”?


Tennessee Update: legislature adjourns, AG says with no law in place legislature has no power to confirm any judges

A followup to this point from earlier. Local news reports from this morning now indicate that the Senate rejected 4-1 with 27 abstentions the House amended version of a plan to provide for confirmation of appellate judges and then proceeded to adjourn. As such, and with no plan in place for confirmation, the state’s Attorney General reportedly indicated the governor is free to appoint anyone to an appellate court with no legislative involvement.

Tennessee: House rejects Senate appellate confirmation plan 92-1, but both chambers OK plan to create merit selection for trial court vacancies

Last year Tennessee voters amended their state constitution to create a quasi-federal system for appointment of appellate judges. The implementing legislation remains hotly contested for appellate confirmation, however, there is agreement on the creation of a merit selection system for interim vacancies on the state’s trial courts.

At the appellate confirmation level the question has been what the phrase “shall be confirmed by the Legislature” means. Can one chamber vote to confirm, the other refuse, and thus kill the nomination? Or would a split vote simply result in no action? Is it a joint vote of the entire legislature, or chamber by chamber?

The Senate version of SB 1 provides for a majority vote of all members of each chamber to which the house is entitled (not just those present) and that the votes would be tabulated separately. The bodies would, in effect, operate independently of each other.

The votes of each house shall be made and tabulated separately. The governor’s appointee shall be confirmed if both houses vote to confirm the appointee by a majority of all the members to which each house is entitled and shall be rejected if both houses vote to reject the appointee by a majority of all the members to which each house is entitled.

The Senate approved its version 30-1 on April 16.

The House version of SB 1 does not include separate tabulation and speaks of a joint vote of all members to which the general assembly is entitled.

The appointee shall be confirmed or rejected by joint vote of both houses of the general assembly. A majority of votes, to which the general assembly is entitled, cast in the affirmative shall confirm the appointee. A majority of votes, to which the general assembly is entitled, cast in the negative shall reject the appointee.

If nothing happens, or if the chambers split, the person becomes confirmed by default under a constitutional provision that requires rejection or confirmation within 60 days (in session appointments) or 60 days from the start of the next annual session (out of session appointments). House members argued that under the Senate plan, 17 Senators (a majority of the Senate) could vote to confirm, the rest of the Senate plus the entire House could vote to reject, and the person would eventually become confirmed by default.

The vote on the House version of SB 1 was 92-1. The Senate declined to accept SB 1 as amended by the House and a conference committee has been appointed.

One area where both the House and Senate do seem to have agreement on is the creation of a merit selection commission to fill interim vacancies in the state’s trial courts of record. The new Trial Court Vacancy Commission would be made up of 11 members: 5 chosen by the House Speaker, 5 by the Senate Speaker, and 1 jointly. At least 7 of the 11 members would be attorneys (3 House Speaker, 3 Senate Speaker, 1 joint). The Commission would go to work where a vacancy occurred or “is impending” in a court of record due to death, resignation, retirement, or otherwise. The governor would be required to appoint a person from a 3-name list provided by the Commission; the governor could request a second list to bring that total up to 6 names. The Commission’s votes would be by anonymous written ballots. The judge appointed would still have to face voters in the next election to fill the remainder of the unexpired term or for a complete term.

Tennessee: House & Senate trying to agree on how to confirm appellate judges- “points” system? Majority of chamber? Majority of quorum? One chamber veto?

Last fall voters in Tennessee approved Amendment 2, changing the way the state’s appellate judges are selected. The language of the new constitutional amendment provides

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature…The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

If the legislature takes no action on a nomination within a set number of days, the person is confirmed by default.

The question then became how, precisely, would a judge be “confirmed by the Legislature”? Could one chamber of the legislature simply refuse to vote on a nominee, or vote to reject a nominee, and thereby kill the nomination? And was it necessary to have a majority of a chamber or just those present?

These questions were the basis for debate of two sets of legislation this year (HB 142 /SB 1 and HB 792/SB 698). Of these, SB 1 and HB 241 have advanced the furthest.

HB 142/SB 1

As introduced, confirmation would only have occurred if both the House and Senate approved; if the chambers did nothing within 60 days the person would have been confirmed by default. It also included a 1-chamber veto plan that would have allowed rejection by a single chamber to scuttle the appointee.

If either the senate or the house of representatives votes to reject the governor’s judicial appointee within the sixty-day period during which the appointee must be confirmed or rejected, then the appointee is rejected by the general assembly regardless of whether the other body has voted on the question.

That single chamber veto plan was amended out by the Senate Judiciary Committee on April 8. Instead a new provision was put in place that also required a majority of all those members to which the chamber was entitled (rather than simply a quorum).

…the general assembly shall meet in joint session for the purpose of voting either to confirm or to reject the governor’s appointee. The votes of each house shall be made and tabulated separately. The governor’s appointee shall be confirmed if both houses vote to confirm the appointee by a majority of all the members to which each house is entitled and shall be rejected if both houses vote to reject the appointee by a majority of all the members to which each house is entitled. If a vote results in any other outcome, then no action is taken and both houses may vote again to confirm or reject, subject to §17-4-103(b)
Thus a person would need to obtain 49 House members (chamber is “entitled” to 99) and 17 Senators (chamber is “entitled” to 33).
A further floor amendment kept the same language and was approved 30-1 by the full Senate on April 16.
The House version, is the subject of a pending amendment that repeats the Senate’s language, including the “all members” provision, but leaves out the last sentence about what occurs if the houses split (i.e. “no action”).
Moreover, an alternative “points” system amendment has been introduced.  Each member of the House would receive 1 point (for a total of 99), each Senator 3 (for a total of 99). Each member of the House and Senate would then vote “confirm”, “reject” or “present but not voting”. A nominee would need to receive 100 “confirm” points to be confirmed. 100 “reject” points would result in rejection by the general assembly. Anything else would be deemed to be “no action.” These amendments could come up today (April 20) on the House floor.

HB 792/SB 698

The House version as amended also dropped the one chamber veto but provided for obtaining a majority of the House and Senate separately of each house’s members who are present and voting and not “all members” of the chambers. HB 792 was approved by a subcommittee of the House Civil Justice Committee on March 25, the full Civil Justice committee on March 31, and a subcommittee of the House Finance, Ways & Means Committee on April 8 but appears to have stalled at that point.

The Senate as amended, repeats the language of SB 1 as amended including the “all members” provision, but leaves out the last sentence about what occurs if the houses split (i.e. “no action”). Approved by the Senate Judiciary Committee April 8, it appears to have stalled out in favor of SB 1.


Four states debate redrawing judicial districts/circuits: should it be a question of caseload? Population? Who should be on the commissions?

This year marks a dramatic uptick in the number of states that are examining the possibility of redrawing their judicial circuits/districts. How states plan on doing this and whether the districts should be redrawn focused on population or court workload are key questions at play.


Section 110 (appellate) and Sections 112 (trial) of the Kentucky constitution contend with the issue of judicial districts. In particular redrawing trial districts puts the Supreme Court into the mix.

The Circuit Court districts existing on the effective date of this amendment to the Constitution shall continue under the name “Judicial Circuits,” the General Assembly having power upon certification of the necessity therefor by the Supreme Court to reduce, increase or rearrange the judicial districts.

SB 49 adds to this by directing the Supreme Court submit a “suggested plan of correction” for circuit/district lines or the reallocation of judgeships. Interestingly, the plan calls for the use of two different criteria to be used

  • Appellate districts: “population only”
  • Trial districts/circuits: “populations or caseloads”

Moreover, SB 49 retains the policy that the General Assembly ultimately makes the decision to draw the lines; this a marked difference as compared to a 2013 constitutional amendment (HB 391) that would have let the Chief Justice redraw the lines as workload required.

SB 49 was approved 31-1-1 in the Senate and approved by the House State Government Committee; it is currently pending on the House floor.


HB 430 creates a judicial redistricting commission to recommend changes to district lines for the 2017 legislature. The commission would be made up of 7 members

  • 1 House or Senate member chosen jointly by majority leaders
  • 1 House or Senate member chosen jointly by minority leaders
  • 2 District Court Judges chosen by Chief Justice
  • 1 District Court Clerk chosen by clerk’s association
  • 1 County Commissioner chosen by counties association
  • 1 member of bar chosen by Bar President

In addition to a catchall provision, the commission would examine judicial redistricting using 6 factors

  1. population of the judicial districts
  2. judicial district’s weighted caseload as determined by judicial workload studies
  3. relative proportions of civil, criminal, juvenile, and family law cases
  4. extent to which special masters, alternative dispute resolution techniques, and other measures have been used
  5. distances in highway miles between county seats in existing judicial districts and any judicial districts that may be proposed by the commission
  6. impact on counties of any changes proposed in the judicial districts

HB 430 was narrowly approved by the full Montana House on a 51-49 vote on 2nd Reading on March 23. It was ultimately approved by the full House on a 54-46 vote yesterday (March 24) and is awaiting transmission to the Senate.

North Carolina

SB 226 directs the Legislative Research Commission (made up entirely of legislators) to study the state’s current trial court districts. The criteria do not mention population, instead focus on three others

  • improve the efficiency of the court system
  • provide for improved administration
  • better balance the caseloads in the various districts

SB 226 is currently in the Senate Rules Committee.


HB 144 was to be a bill about efiling in Tennessee courts. As amended in its entirety yesterday (March 24) it now creates a new way for Tennessee to redraw its judicial district lines. Amendment 1 to HB 144 directs the creation of a task force to recommend new judicial district lines and a joint House/Senate committee to review the proposal.

The Advisory Task Force to Review the Composition of Tennessee’s Current Judicial Districts would be made up of 13 members chosen by the House Speaker (6), Senate Speaker (6), and a joint appointment (1). The members would have to consist of

  • 3 current trial court judges, one from each grand division in the state
  • 3 current district attorneys, one from each grand division in the state
  • 3 current public defenders, one from each grand division in the state
  • 4 other members to be determined by speakers

There is no direction regarding the criteria for the new lines, other than

  • reasonable and timely access to Tennessee’s circuit, chancery, and criminal courts
  • promote the efficient utilization of publicly-funded resources allocated for the courts

The Task Force would make its report to a new Joint Legislative Committee on Judicial Redistricting made up of 5 House and 5 Senate members. The Joint Legislative Committee would remain a permanent feature in law being reconstituted every 8 years; the Advisory Task Force would have to be reenacted each time.

HB 114 as amended was approved yesterday (March 24) by the House Civil Justice Committee and referred to the House Finance, Ways & Means Committee.

Plans to strip Tennessee Supreme Court of power to appoint state attorney general killed in House but advancing in Senate

I mentioned earlier this week of the unique power held by the Tennessee Supreme Court under the state’s constitution to appoint the state’s Attorney General.

An Attorney General and Reporter for the State, shall be appointed by the Judges of the Supreme Court and shall hold his office for a term of eight years.

There’s been a series of attempts in recent years to remove this power (detailed here in 2014) and the latest iteration appears to have cleared its first Senate hurdle but be facing defeat in the House.

There are five plans currently pending before the legislature. The proposal that seems to have drawn the most focus has been for popular election to 6 year terms with a limit of two consecutive terms (HJR 72 and the almost identical SJR 63). That plan was rejected by the House Civil Justice’s subcommittee on Civil Justice on March 11, but cleared the Senate Judiciary on March 3.

All five plans detailed below the fold.

Continue reading Plans to strip Tennessee Supreme Court of power to appoint state attorney general killed in House but advancing in Senate

Tennessee: state’s supreme court picks attorney general, now legislator wants court to vote in public

Tennessee is unique in that the state’s Supreme Court, not the governor or legislature or voting public at large, names the state’s Attorney General (Art. VI, Sec. 5)

An Attorney General and Reporter for the State, shall be appointed by the Judges of the Supreme Court and shall hold his office for a term of eight years.

Since 1997 over a dozen constitutional amendments have been introduced into the state’s legislature to remove this power from the Supreme Court as detailed here and here. This year, however, lawmakers appear to be taking a new approach; require the Supreme Court vote on the AG in public.

HB 1306 scheduled for a hearing today before a subcommittee of the House Civil Justice Committee would provide

Prior to appointing the attorney general and reporter, any meeting in which the justices of the supreme court vote for a candidate for the office shall be subject to the open meetings law…

Part of impetus may be last year’s move by the state’s Supreme Court to appoint the Republican Governor’s legal counsel as the new Attorney General, rejecting an effort by the serving Attorney General to obtain another term in office.

This marks the second attempt this session to force a state court of last resort to deliberate in public. Montana’s legislature narrowly rejected on a 48-52 vote a proposal to subject that state’s Supreme Court to open meetings requirements for all its deliberations as detailed here.


Tennessee: let legislature set terms of office for trial courts

Most states specify in their state constitutions the terms of office for judges. The practice goes back, at least for higher level courts, to the Revolution and/or statehood; a complaint was that a judge who displeased the Crown or later legislature might find their term of office reduced to zero. In Tennessee, this takes the form of Article VI, Section 4 for trial judges

The Judges of the Circuit and Chancery Courts, and of other Inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned. Every judge of such courts shall be thirty years of age, and shall before his election, have been a resident of the state for five years, and of the circuit or district one year. His term of service shall be eight years.

HJR 91 of 2015, however, would delete that last sentence and allow the legislature to set any term it wished.

The term of service shall be set by the general assembly.

HJR 91 has been filed in the House but not yet assigned to a committee.

Tennessee Legislative Year in Review: Defining what is a “case” for court statistical purposes, judges carrying guns into courthouses


HB 1520 Removes the requirement that judges must complete Tennessee Peace Officers Standards and Training (POST) training in order to carry a firearm in the discharge of the judge’s official duties.

HB 1640 Extends the Tennessee board of judicial conduct to 2018.

HB 1809 Redefines criminal “case” for court statistics/caseload/weighted caseload purposes.

SB 1546 Terminates the judicial information system advisory committee.

SB 1570 Terminates the Tennessee court information system (TnCIS) steering committee.

SB 1673 Beginning July 1, 2015, reduces, from 50 percent to 40 percent, the amount of collected court fees, fines, costs, and taxes a third – party agent can receive for its fee. Prohibits state funds from being used to pay for any computer system or software changes that may be necessitated by the proposed legislation. Provides any changes shall be funded by fees collected by court clerks which are dedicated funds for computer related expenses of court clerks under existing statute.