By Bill Dries,
October 11, 2013

Tennessee Gov. Bill Haslam can fill vacancies in state trial and appellate court positions without getting a list of finalists from the Judicial Nominating Commission, which went out of existence at the end of June.

Haslam got a legal opinion on the complex scenario Wednesday, Oct. 9, from Tennessee Attorney General Robert Cooper.

The Tennessee Assembly adjourned its 2013 session without both chambers approving a bill to renew the existence of the 17-member commission. The legislation was a casualty of an end-of-session disagreement between the Republican leaders of the House and Senate, in which one chamber voted down a bill favored by the leadership of the other chamber.

Since then, several appeals court judges, including two members of the Tennessee Supreme Court, have announced they will not seek re-election in the state judicial retention elections next August.

Just before it went out of existence, the commission took applications and sent Haslam two sets of three finalists each. Haslam has since made his selections based on those lists, even though the vacancies don’t take effect until the summer of 2014.

But the commission didn’t have enough time left to do the same for the vacancy created with the resignation of Tennessee Supreme Court Justice Janice Holder, of Memphis, at the end of her current term, Aug. 31, 2014.

The opinion requested by Haslam cites the “failsafe provision” the Legislature put in the latest version of a state law governing the judicial mechanism, which has existed in some form since 1971.

The failsafe says if the Judicial Nominating Commission does not send a list of three nominees to the governor within two months of when the governor notifies the commission in writing of the vacancy, the governor can fill the vacancy on his own.

The governor can appoint anyone “who is duly licensed to practice in this state and who is fully qualified under the constitution and statutes of this state to fill the office.”

The appointment runs out Aug. 31 – after the next regular August election and more than 30 days after the vacancy occurs.

By putting that language into the 2009 version of the mechanism, Cooper wrote the Legislature “evidenced a separate intent to ensure that judicial vacancies are filled in a timely manner and recognized that the need for a functioning judiciary carries a greater priority than the JNC’s advisory role.”

And Cooper opined that the intent is consistent with the Legislature’s role in the Tennessee Constitution to “ensure the continuous existence of a competent and effective judiciary.”

To make the point that the Legislature included the failsafe to cover the specific event of the commission not being renewed, Cooper included a transcript of a 2009 state Senate floor debate in which Sen. Dewayne Bunch questioned Senate Majority Leader Mark Norris of Collierville about that specific scenario.

Norris said the failsafe covered and was intended to cover the commission not being renewed by the Legislature.

Cooper’s opinion also includes a footnote that reflects the still-complex judicial scenario, even if it resolves the governor’s ability to make judicial appointments.

“If an incumbent appellate judge fails to seek re-election, ‘then a vacancy is created in the office upon the expiration of the incumbent’s term effective Sept. 1,’” the footnote reads, with the second part quoting from the state statute on the matter.

Until the recent set of resignations, judges would set the effective date for their resignations before their current terms expired. That meant the governor would make an appointment and the appointee would begin serving before a retention election. It also meant the appointee’s name would be on the ballot for the retention election.

The opinion doesn’t deal with questions about whether the appointee in these circumstances would begin serving Sept. 1 and then go on the ballot in a special election the following August.

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