Tennesseans Have a Right to Expect Fairness and Equal Justice from Our Courts – Not Politics and Abuse of Power

Justice Penny White

Add your name to the Open Letter to Gov. Lee and the General Assembly

As Tennesseans, we are entitled to expect our elected leaders to honor the vital aspects of our democracy, to elevate the principles of fairness and equal justice over politics, and to act with integrity, respecting the rule of law and its application to all of us, not only some of us.  And we should require that our elected leaders embrace the essential role that courts play in safeguarding against abusive government power.

I grew up in Tennessee, was educated in the public schools in the Tri-Cities, and was the first member of my family to graduate from college.  My eighth-grade civics teacher, Coach Roger Herron, instilled in me the duties of citizenship – to participate in government, to engage in debate, and, as he was fond of saying, “to speak . . . or forever hold your peace.” Coach Herron’s inspiration led me to law school, which has provided me with the equally important responsibility of helping others in their quest for justice.  As a lawyer, I have been honored to advocate for fairness and justice for my clients in the courts, including the US Supreme Court.  In 40 years of practice, I have stood in awe of courageous judges who, with a firm commitment to equal justice, have ruled as the law required despite the unpopularity of their decisions, but I have also mourned judicial decisions that lacked any rationale separate from their obvious political expediency.

When judicial decisions are influenced by politics, the fundamental tenet of our government as a three branch system of checks and balances goes askew. 

This is because in America and in Tennessee, we count on our courts to be the “great levelers,” the branch of government that checks governmental power in steadfast loyalty to the Supreme Law of the Land, the US Constitution.  Since 1803, the duty of the courts to declare – independent of politics, without “fear or favor” – that the executive or legislative branches have exceeded their authority has been the crown jewel of our democracy.

To legitimately level, courts must be impartial and independent.  For their decisions to be respected and followed, courts must act with integrity, free from political influence and inherent conflicts of interest.  Impartiality is so fundamental to the legitimacy of our courts and their decisions that judicial ethics requirements prohibit a judge from deciding any case in which there is even an  appearance of bias or impropriety.  Bias, favoritism,  preconceptions or expectations of outcome have no place in the judiciary.

Our elected officials are now proposing to modify Tennessee’s trial court system for the first time in more than a hundred years in a manner that will disrupt the fundamental separation and balance of powers between the branches of state government; undermine the independence and integrity of the courts; and thwart the rights of citizens to challenge governmental action.  The proposal would create  a statewide chancery court with the exclusive, original  jurisdiction, i.e., authority,  to determine whether state laws, executive actions, or administrative rules or regulations violate the constitution.  Empowering three judges, initially appointed by the governor, and only these judges, to determine whether the governor, the executive, or the legislative branch has overstepped their political authority undermines and politicizes our justice system, to the detriment of all Tennesseans and the values we share.

At the most fundamental level, this new “super” chancery court would suffer from the very evil that courts must avoid – the appearance of partiality.  A judge must not only hold the “balance nice, clear and true;” the public must perceive that the judge is doing so, for justice is as it is perceived to be.  The creation of a court made up of judges who are initially appointed by the Governor, whose sole duty (and jurisdiction) is to rule on cases challenging executive, legislative, or administrative actions, interferes with the separation of powers, undermines the independence of the judiciary, and threatens to reduce the public’s confidence in the courts’ integrity, confidence that is essential to public support for and adherence to the rule of law.  Moreover, the appointed judges would face legitimate inquiries into the potential conflict of interests.

The proposed legislation has practical as well as constitutional implications.  From a purely practical point of view, this so-called statewide court tramples on the rights of citizens guaranteed by Tennessee’s open courts provision.  Imagine, for example, that a deserving, yet disadvantaged individual in Mountain City, Tennessee, files a lawsuit, as our state constitution and laws provide, in her home judicial district in Johnson County, Tennessee, raising a question about the constitutionality of a law as applied in that county.  That litigant would have to bear the expense of her attorney, witnesses, and herself, traveling to the so-called chancery court for the hearing on the matter (based on the proposal that the three statewide chancellors would sit in the appellate court buildings in the three grand divisions). And what about others interested in the outcome of the litigation?  They, too, would have to make the trip.  Moreover, the decision would be made by an eastern grand division statewide chancellor, appointed by the Governor, who may have to look at a map to even find Johnson County.  There are a host of reasons that, for centuries, Tennessee’s trial courts have conducted business in the county seats of Tennessee’s 31 judicial districts rather than in the Supreme Court buildings in Knoxville, Nashville, Jackson.  The creation of a statewide chancery court undermines the open courts provision of the Tennessee Constitution, thwarts citizens’ ability to observe legal proceedings concerning their neighbors and  their communities, and disparately impacts people without financial resources, while also removing the right to vote for local circuit and chancery judges.

Creating a new statewide chancery court will cost Tennesseans millions of dollars, a pure waste of taxpayer money in light of the lack of and demonstrated need for the new court.  Most often, when populations grow and court dockets increase or become backlogged, the legislature undertakes a thorough study to determine whether the increase needs support the creation of an additional circuit, criminal, or chancery court in a judicial district.  Not this time.  And the reason that a study was not undertaken is simple.  A study would not have demonstrated a need because this new court is not being created to eliminate delay or aid judges whose dockets are overwhelming; this new court is being created to attempt to wrest from the people the right to an independent, impartial tribunal in which to challenge government overreach.  Moreover, the fiscal note attached to the legislation is grossly understated, ignoring existing employee salaries and benefits, minimal office equipment, and many other essentials that establishing a brand new court system requires.

Rather than meeting a need, the creation of the new state-wide chancery court would likely have a deleterious effect on the efficiency of our state trial courts.  Lawsuits that raised constitutional as well as other issues would, presumably. have to be bifurcated, i.e., divided,  between the local courts with general jurisdiction and the state-wide court with exclusive constitutional jurisdiction, resulting in delay, expense, and inefficiency.  Moreover, since there will be three statewide chancellors, all exercising original jurisdiction, there is a likelihood of a divergence of opinion – unless everyone that is appointed is expected to never find any governmental act unconstitutional.  And it is likely that we would see increased litigation and forum shopping, as well as instability and uncertainty as different state-wide chancellors reach different conclusions.

As Tennesseans we deserve more from our elected officials.  We deserve to have leaders who undertake to resolve some of the myriad of challenges that Tennesseans face, rather than those who propose spending taxpayer dollars to create mechanisms to circumvent the checks and balances system on which democracy depends.

I hope you will join me in following Coach Herron’s lead, speak now  and encourage Governor Lee and Members of the Tennessee General Assembly, to live up to the charge that we have as citizens, that they have as our elected leaders – to be guided by principles of justice, of fairness, and of equal application of the law – not by political expediency.