Is the Tennessee Plan Constitutional?

Since 1994, the elections of judges for eight-year terms to the Tennessee Supreme Court have been conducted pursuant to the Tennessee Plan, in which judges are recommended to the governor by the Judicial Evaluation Commission and retained or rejected by the qualified voters of the state. However, the Tennessee Constitution provides for Supreme Court judges to be elected for eight-year terms by the voters, and some argue that judicial selection in Tennessee should return to this method. In fact, pending litigation and legislation in Tennessee may return the state to its previous method of judicial elections.

In the Tennessee Constitutions of 1796 and 1835, supreme court judges were selected by the legislature. The 1870 Constitution changed that method to provide that they be elected by the qualified voters instead: Article VI, Section 3, of the Tennessee Constitution provides that, “The judges of the Supreme Court shall be elected by the qualified voters of the state” for eight-year terms. That Section has remained un-amended since the constitution was enacted in 1870.

From 1870 until 1971, the legislature did not attempt to change that method of electing supreme court judges. In 1971, however, the legislature adopted the Tennessee Plan (Chapter 198, Public Acts of 1971, page 510) so as to provide for the filling of vacancies on the supreme court by a procedure under which the governor chooses a judge for appointment from three persons nominated by the Appellate Court Nominating Commission.

Governor Bryant Winfield Culberson Dunn appointed a judge to the supreme court from the list recommended by the Judicial Nomination Commission pursuant to that Act. In State ex rel Higgins v. Dunn, the Tennessee Supreme Court set aside that appointment because it held it was made too late.¹ In this three-to-one decision, the court also ruled that the Tennessee Plan’s provision for filling vacancies was not unconstitutional because the Tennessee Constitution does not define “elected;” the constitution authorizes “elections” for referenda, constitutional amendments and ratification of private acts, which are all limited to approval and disapproval, just as the Tennessee Plan is limited to voter approval or disapproval of judges.

In a vigorous dissent, Judge Allison Humphreys argued that, if supreme court judges are to be elected by retention elections only, then “the Legislature can do away with popular elections for civil officers. This means that the Legislature constitutionally keeps all constitutional civil officers in office until they are recalled by a per centum of the vote the Legislature chooses to fix.”²

Proponents of the Tennessee Plan claim that the ruling in Higgins v. Dunn establishes the constitutionality of the Tennessee Plan. However, opponents of the Tennessee Plan contend that the Higgins decision does not apply to elections under the Tennessee Plan for eight-year terms because that case involved only an appointment of a judge to fill a vacancy, not an eight-year term; it held that the appointment was void under the statute; the statute involved in that decision was repealed by the next session of the legislature following the decision; the three-to-one majority opinion failed to consider the meaning of the words “elected by the qualified voters” at the time of the adoption of the 1870 constitution. Further, if that decision was recognized as precedent on the meaning of those words, it could lead to the legislature passing a new statute to have retention elections for the governor and members of the Tennessee Senate and House.

Opponents of the Tennessee Plan also contend that, as a matter of law, the Higgins case decided in 1973 was overruled by the Tennessee Supreme Court in Delaney vs. Thompson.³ That case reviewed a trial court decision which held that, since the constitutionality of the Tennessee Plan as related to an eight-year term was not addressed in the Higgins case, the Higgins decision was not controlling. The trial court further held that the Tennessee Plan is unconstitutional on its face because it does not allow the qualified voters to exercise their constitutional right to elect judges. On appeal, the Tennessee Court of Appeals reversed that holding by the trial court and held that the Tennessee Plan is constitutional. The supreme court granted an appeal and reversed the ruling of the court of appeals.

Opponents of the Tennessee Plan further assert that the public has never consented to the election of supreme court judges by retention elections for eight- year terms and, therefore, the meaning of the words “elected by the qualified voters” at the time the constitution was adopted in 1870 should still be followed. At the constitutional convention where the 1870 Constitution was adopted, it was decided that the Tennessee Constitution should be changed so that supreme court judges would be elected for eight-year terms by the qualified voters. Thus, many argue that the plain meaning of “elected by the qualified voters” is that judges had to be elected by the voters in popular elections.

In 1977, the Tennessee Legislature proposed an amendment to the Tennessee Constitution to authorize the election of supreme court judges by retention elections rather than by the qualified voters. That amendment was rejected by the public in a referendum. Nevertheless, in 1994, the state legislature enacted the Tennessee Plan for the retention election of Supreme Court judges. Presently in Tennessee, opponents of the Tennessee Plan are contending that the Tennessee public has never consented to the retention election of Supreme Court judges for eight-year terms. Whether the Tennessee Plan will remain in effect in its present form in the future is still a matter of great debate.

 

Endnotes

1 496 S.W.2d 480 (1973).

2 Id. at 493.

3 982 S.W.2d 857 (1998).

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].