Statement on Senate Bill No. 915 / House Bill No. 1072, & Senate Bill No. 868/ House Bill No. 1130.

 

Statement by the Board of the Memphis Bar Association
 

As representatives of the Memphis Bar Association, we have a distinct interest in preserving the independence of the judiciary, access to the courts, and the rule of law.  SB915/HB1072 jeopardizes all three.  

 

By providing an automatic interlocutory appeal, and stay pending final outcome of the appeal, of any trial court order granting any sort of relief in a constitutional challenge to a state statute, this bill takes away an essential type of discretion from the co-equal judicial branch.  This includes the trial courts, intermediate appellate courts, and the Tennessee Supreme Court, all of whom currently have discretion on such decisions.  This provision raises serious concerns about the separation of powers and the bill's constitutionality. 

 

This provision also threatens individual liberty.  There are many cases where the matter being litigated is time-sensitive, and the implementation of an unconstitutional statute can cause immediate and irrevocable violations of constitutional rights.  Giving the state an automatic stay pending the sometimes-lengthy appellate process would allow such violations to move forward, rendering the eventual appellate review moot.  Rather than giving the State a blanket pass pending appeal, such matters are best left to the sound discretion of the judiciary on a case-by-case basis. 

 

The bill also permanently bars any local government entity from ever challenging the constitutionality of a state statute.  This also encroaches on judicial independence and threatens constitutional rights, by depriving state statutes of a key source of judicial review.  There are sometimes cases where only a local government entity may have standing to challenge a state statute, or where the standing of other litigants is more open to question and thus expensive and time-consuming motion practice.  There are other situations where only local government entities have the resources to challenge unconstitutional laws.  

 

All of the above provisions add up to an attempt by the legislative branch to insulate itself from meaningful judicial scrutiny.  If it passes, the judicial branch will be weaker, as will Tennesseans' protection against unconstitutional laws.

 

We respectfully urge the General Assembly to reject this bill

 

We also have concerns over another legislative attempt to reduce judicial scrutiny of the constitutionality of state action.  HB1130/SB868 creates an unnecessary and expensive extra layer of judiciary using a more unwieldy selection process, reserving to it exclusive jurisdiction over any constitutional challenge to any state legislative or executive action.  It removes such authority from local single-judge trial courts, which are familiar with local concerns and can act nimbly and quickly when the need arises, and gives it to an unwieldy three-judge trial court panel whose members reside in all three Grand Divisions but who must convene in Nashville to consider cases. 

 

Rather than having such “super-chancellors” elected from their respective districts, as is the case with regular chancellors and every other trial judge of record in Tennessee, they would be elected in partisan elections statewide from “residency districts”—i.e., they would be required to reside in their respective Grand Division, but would be elected statewide. Creating this extra layer of judiciary would add over $1.1 million in annual state spending.   We can see no reason for this unusual (and expensive) arrangement other than a partisan one: to ensure that the judges all owe their allegiance to the statewide party in power.  Besides injecting gratuitous and unhelpful partisan considerations into the judicial process, this selection procedure will tend to produce judges who are more sympathetic to the party in power, and thus less willing to engage in robust judicial review.  Further, unlike the bills mentioned above, which only insulate from meaningful judicial constitutional review state legislative action, this bill applies to any constitutional challenge to any action taken by the legislature, the executive branch, or any administrative agency.

 

Such an entirely new group of judges is both unnecessary and also an inefficient allocation of judicial resources, because constitutional challenges to state action represent only a very tiny fraction of the overall statewide caseload. 

 

For the above reasons, we urge the General Assembly to reject this bill as well.

 

Contact:  Steve  Mulroy 901-603-877

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