Turf battle between legislature, judiciary lies on horizon in Tenn.

Tennessee’s Supreme Court justices soon must wrestle with the thorny issue of whether, and to what extent, the state’s legislature can overrule its high court.

The question comes as judges and judicial systems across the country are taking shots from lawmakers and politicians for being unaccountable and out of touch with mainstream America, and after a year that saw the Tennessee General Assembly pass two laws explicitly aimed at overturning state Supreme Court decisions that lawmakers didn’t like.

On the campaign trail, presidential hopeful and former Speaker of the House Newt Gingrich has said he would ignore some Supreme Court decisions, abolish courts he doesn’t like and force judges to appear before Congress to explain “radical” decisions.

In statehouses, 2011 saw more efforts to remove judges than any other year in recent history, according to Bill Raftery of the National Center for State Courts. Fourteen bills in seven states sought the impeachment of judges, including one that would have abolished the entire Superior Court of New Hampshire. In all but two instances, impeachment was sought simply because lawmakers didn’t like judges’ decisions, according to Raftery.

High-profile battles

Critics say the attacks threaten the separation-of-powers doctrine at the heart of American democracy and warn that the courts should remain independent of the executive and legislative branches and free from the improper influence of politics.

Tennessee already has seen its share of high-profile battles. Trial lawyers and consumer activists said the tort reform package that Republican Gov. Bill Haslam successfully pushed through the legislature in 2011 undermines Tennesseans’ constitutional right to a jury trial by capping the damages that jurors can award. And lawmakers who wish to reform the Tennessee Court of the Judiciary — the body that investigates ethical complaints against judges and determines discipline — have been accused of trying to infringe on a coequal branch of government.

But behind the headlines, a subtler and more fundamental controversy is bubbling. Two bills that easily passed the General Assembly in 2011 go so far as to tell the courts how to interpret their own procedural rules for resolving disputes. In the words of Mark Chalos, a Nashville attorney at the plaintiffs’ firm Lieff Cabraser Heimann & Bernstein, lawmakers went beyond changing the substance of a law, which he said would be OK, and changed the rule lawyers and judges play by, which he said crosses the line.

“The Tennessee Constitution and Tennessee law is clear that it is exclusively in the courts’ purview to make rules for resolving disputes,” Chalos said. “There is a concern that this legislature is ignoring the constitutional limits on its powers.”

But Rep. Vance Dennis, R-Savannah and a sponsor of both bills, said there’s nothing wrong with overruling the Tennessee Supreme Court “if the judicial branch does something that is contrary to the will of the people.”

“I think that’s certainly the way our three-tiered system of government is supposed to work,” Dennis said. “That’s all part of the checks and balances.”

Laws target rulings on civil lawsuits

The two laws explicitly state their purpose is to overrule recent Supreme Court decisions that spelled out standards for determining whether to grant summary judgment in civil lawsuits.

When a judge enters a summary judgment, he is picking the winner of a lawsuit before the case goes to trial based on a showing that the other side essentially has no case. Summary judgment allows litigants to save the time and expense of going to trial by disposing of weak lawsuits before they get there. While summary judgment can be requested by either a plaintiff or defendant, in practice it primarily benefits defendants.

In a split 4-1 decision in 2008, the Tennessee Supreme Court sought to clarify confusion over how Tennessee courts should evaluate motions for summary judgment. The court’s opinion in Hannan v. Alltel Publishing Co. departed from the standard used in federal courts and made it harder for defendants to win a motion for summary judgment in Tennessee. The decision upset businesses worried about increased litigation costs.

The Hannan case was followed in 2010 by a 3-2 Supreme Court decision in Gossett v. Tractor Supply Co. that articulated another departure from the summary judgment standards used in federal courts and made it harder for employers to dispose of discrimination and retaliation lawsuits brought by workers.

At the end of the 2011 legislative session, the bills sponsored by Dennis and Sen. Brian Kelsey, R-Germantown, easily cleared the legislature. In no uncertain terms, the laws tell Tennessee judges to ignore the Supreme Court’s rulings in the Hannan and Gossett cases and follow the summary judgment standards used in the federal court system.

The situation has created a great amount of confusion in Tennessee courtrooms, said Brentwood personal injury attorney John Day, who said the Tennessee Supreme Court ultimately must decide whether the laws can stand. Day, like Chalos, believes the legislature overreached.

One-sided burden … or frivolity filter?

The court’s answer will help define the future of the state’s judiciary and its relationship with the other branches of government. Also at stake is the ease with which Tennesseans will be able to hold wrongdoers accountable in court. The Republican-led legislature’s moves have been decidedly pro-business and carried out in the name of job creation; they make it harder for consumers and employees to win lawsuits against corporations and other organizations.

“The new summary judgment statute places an unfair burden on people who have been harmed and are trying to hold wrongdoers accountable,” Chalos said.

Supporters of the bill, however, said the new laws simply allow the courts to weed out frivolous lawsuits that could proceed to trial under the Hannan and Gossett frameworks.

“I don’t know of any industry that didn’t support” the bills, said Ed Lancaster, general counsel for the Tennessee Farmers Insurance Cos. The insurer was among the business interests that lobbied in favor of the legislation. “The weak cases go to trial. That’s what Hannan did. There’s a reason why the federal courts and 46 states don’t go with that standard. And there’s a reason why the trial lawyers prefer it.”

Day, however, said the business lobby’s economic arguments are undermined by the fact that the laws have created confusion that will cost a lot of money to sort out.

“I can’t overemphasize to you how important it is that the rules of the Supreme Court be established. Can you imagine sitting down to play a card game and not knowing what the rules are?” he said. “It will cost millions of dollars in attorneys’ time to try to figure out what this law means. … For what? To prevent people from getting a jury trial? I don’t think it’s worth it.”

Day said it could take two years before the constitutionality of the laws makes its way before the Supreme Court. Two recent opinions, however, suggest that the courts are preparing to take a stand.

In July, shortly after the laws took effect, the Supreme Court went out of its way in Webb v. Habitat for Humanity to re-emphasize its stance in the 2002 case State v. Mallard.

“As a constitutional matter, this Court ‘has the inherent power to promulgate rules governing the practice and procedure of the courts of this state,’ and ‘this power cannot be constitutionally exercised by any other branch of government,’ ” the unanimous opinion states.

And just last month, the Court of Appeals also noted Mallard and, in a footnote to its decision in Lee v. Lyons Construction Co. Inc., directly rebuked the General Assembly’s attempts to overrule the Hannan decision with legislation.

“The legislative effort to dictate the practice and procedure to be followed by the courts under these circumstances is inappropriate and unavailing due to the separation and independent powers of the three branches of government,” the footnote states.

The constitutionality of the two laws was not at issue in these two cases, however, as both were appeals of lawsuits filed in 2009 before the laws took effect.

Lawmakers’ focus on the judiciary isn’t expected to let up in 2012. Kelsey has already floated a number of judicial bills. One would change the way the state appoints appellate judges, replacing the current model whereby the governor appoints judges who must stand in uncontested, yes-no retention elections every eight years with one in which appellate judges would be appointed by the governor and confirmed by the state Senate to lifetime appointments.


Turf battle between legislature, judiciary lies on horizon in Tenn.
Brandon Gee
January 2, 2012
The Tennessean