Contested elections as secret weapon: legislative control over judicial decision-making.

• Author: Cornett, Judy M.
• Position: Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts

1. INTRODUCTION

   What does a battle over contested election of judges look like? In Tennessee, it has taken the form of a battle over summary judgment. Since 1971, Tennessee has chosen its appellate judges through merit selection. (1) Pursuant to the "Tennessee Plan," vacancies on the appellate bench are filled by a process of application by interested lawyers, nomination of three candidates by the Judicial Nominating Commission, appointment by the governor, evaluation by the Judicial Evaluation Commission, and retention by the voters every eight years thereafter. (2) In these retention elections, voters vote "yes" or "no" on the question: "Shall (Name of Candidate) be retained or replaced in office as a Judge of the (Name of Court)?" (3) Because the Tennessee Constitution has provided since 1835 that "Judges of the Supreme Court shall be elected by the qualified voters of the State," (4) critics of the Tennessee Plan have argued that retention elections are unconstitutional, and that only contested elections can satisfy the constitutional mandate. (5)

   Because the legislation authorizing the Judicial Nominating Commission and the Judicial Evaluation Commission expired on June 30, 2008, (6) proponents of contested judicial elections began agitating for legislation establishing judicial elections or, in the alternative, an amendment to the Tennessee Constitution to provide for retention elections. (7) In 2009, however, the Tennessee General Assembly passed legislation extending the Tennessee Plan until June 30, 2012. (8) With the Tennessee Plan again set to expire, the debate over contested elections has begun anew, but with an additional twist: In January 2011, for the first time since Reconstruction, the Tennessee General Assembly convened in Nashville with a Republican majority in both houses. (9) Indeed, early in the session, a bill was introduced to abolish the Tennessee Plan and institute contested elections for all appellate judges. (10) The Lieutenant Governor and Speaker of the Senate, Senator Ron Ramsey, proposed a constitutional amendment to "legitimize" the Tennessee Plan, fearing the repercussions of "high-spending political contests" for judges. (11) Ramsey's proposal was supported by both Tennessee Governor Bill Haslam, also a Republican, and House Speaker Beth Harwell. (12) However, Republican legislators broke with their leadership to pass a resolution in support of a constitutional amendment combining the federal advise-and-consent model for nominating judges with the current system of judicial retention elections. (13) Supporters of the current system have expressed concern that the constitutional amendment route is simply "a back door way to bring on popular election of judges." (14)

   But the battle over contested election for appellate judges cannot be evaluated in a vacuum. In Tennessee, the issue of contested elections is part of a much larger issue: legislative power over the judiciary. Ironically, when Tennessee entered the union in 1796, its constitution called for complete legislative control over the judiciary, including election of all judges "by joint ballot of the two houses of the General Assembly." (15) Legislative power over the judiciary gradually eroded (16) until, in 1978, the General Assembly passed a comprehensive reform package which reorganized the Tennessee trial courts and granted the supreme court greater rulemaking power. (17) But with the advent of the Republican-controlled General Assembly, challenges have been raised to the supreme court's power to appoint the Attorney General (18) and to the operation of the Court of the Judiciary, the disciplinary body that oversees all Tennessee judges, a majority of whose members are appointed by the Tennessee Supreme Court. (19) This makes Tennessee one among many states in which the legislature has openly challenged the power of the judiciary. (20)

   An additional line of attack has been opened on individual rulings of the supreme court. In the 2011 session of the General Assembly, the majority succeeded in passing legislation overruling two recent decisions of the Tennessee Supreme Court that were seen as excessively pro-plaintiff and thus unfriendly to business interests. (21) In the first of those decisions, Hannan v. Alltel Publishing Co., (22) the supreme court interpreted Tennessee Rule of Civil Procedure 56 and rejected the federal Celotex standard for summary judgment, (23) instead requiring that the movant for summary judgment either "negate an essential element of the [nonmovant's] claim" or "show that the [nonmovant] cannot prove an essential element of [its case] at trial" in order to prevail on its summary judgment motion. (24) In the second decision, Gossett v. Tractor Supply Co., the court rejected the federal McDonnell-Douglas framework for evaluating summary judgment motions in retaliatory discharge cases, holding instead that the Hannan summary judgment standard should be applied to those cases. (25)

   These two legislative attacks on specific supreme court rulings could be viewed simply as isolated victories by special interests, or as discrete instances of legislative dissatisfaction with specific rulings of the court. Indeed, by flexing its legislative muscle, the General Assembly might simply be showing its disregard for the judicial branch; the legislature might be saying that it is the ultimate arbiter of the law of Tennessee. But this relatively benign interpretation of the legislature's action overlooks the larger context. The General Assembly's attempt to control the summary judgment standard constitutes a broadside attack on the supreme court's ability to interpret its own rules. And, by holding contested elections--the proverbial "sword of Damocles"--over the head of the supreme court, the legislature dared the court to reinstate the Hannan standard by holding the legislation unconstitutional. Thus, whatever power the General Assembly believes it has to control the interpretation of the rules of civil procedure is augmented by its threat to subject the justices of the supreme court and intermediate appellate court judges to contested elections.

   In the remainder of this article, we will explore the role of summary judgment in the current showdown between the Tennessee Supreme Court and the General Assembly. In Part II, we will briefly discuss Public Chapter No. 498. In Part III, we will explore the constitutionality of the Act repealing Hannan. In Part IV, we will examine whether the Act exceeds the General Assembly's statutory rulemaking powers. And in Part V, we will conclude by restating the larger context, including the political realities, of the inter-branch battle.

2. PUBLIC CHAPTER NO. 498

   On the last day of the 2011 regular legislative session, May 20, the Tennessee General Assembly passed Public Chapter No. 498, which purported to overrule Hannan by adopting the Celotex standard for summary judgment. (26) The operative section of the Act creates a new section of the Tennessee Code Annotated, section 20-16-101, which reads as follows:

   In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:

   (1) Submits affirmative evidence that negates an essential element of the nonmoving party's claim; or

   (2) Demonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. (27)

   The enacted bill contained findings that expressed the legislature's purpose to overrule Hannan on the basis of its conflict with federal law and the finding, unsupported by any evidence in the legislative history, that "this higher Hannan standard results in fewer cases being resolved by summary judgment in state court, increasing the litigation costs of litigants in Tennessee state courts and encouraging forum shopping...." (28) The enacted bill also provided that "[e]xcept as set forth herein, Rule 56 of the Tennessee Rules of Civil Procedure remains unchanged." (29)

   The most obvious question arising from this attempt to either amend Tennessee Rule of Civil Procedure 56 or overrule the Tennessee Supreme Court's interpretation of it is whether the enactment is constitutional. (30) The stage is set for the Tennessee Supreme Court to answer the age-old question: "Who has the power to prescribe the procedure of the ... courts?" (31) Because there is no precise federal or state analogue to what has happened in Tennessee--and because Tennessee's current supreme court is especially astute and articulate in matters of civil procedure (32)--the constitutional challenge that is sure to come will shed light on the current status of inter-branch power on the state level. (33)

   A second question arising from enactment of the new law is whether the legislature can depart from its own established processes for amending court rules of practice and procedure. (34) In Tennessee, as in the federal system, the constitution establishes only the supreme court, reserving to the legislature the power to establish inferior courts. (35) Analogous to Congress's enactment of the Rules Enabling Act, (36) the Tennessee legislature has arguably delegated rulemaking power for the inferior courts to the Tennessee Supreme Court: "The supreme court may make rules of practice for the better disposal of business before it." (37) "The supreme court has the power to prescribe by general rules the forms of process, writs, pleadings and motions, and the practice and procedure in all of the courts of this state in all civil and criminal suits, actions and proceedings." (38) "[Such rules] shall not abridge, enlarge or modify any substantive right, and shall be consistent with the constitutions of the United States and Tennessee." (39)

   Tennessee's process for promulgating the rules of civil procedure differs from the federal process, however. While Congress...