Is it constitutional for Tennessee to give court reporters from a particular trade association easier licensure than non-members?

Plain-English summary

Representative Susan Lynn asked whether the grandfather clause in the new Tennessee Court Reporter Act of 2009 (Tenn. Code Ann. § 20-9-613) unconstitutionally favors members of the Tennessee Court Reporters Association (TCRA) over non-members. The 2009 Act required court reporters to be licensed through an examination and fee process. Like most new occupational-licensing schemes, it provided a grandfather clause to allow already-practicing reporters to be licensed without taking the new examination.

The grandfather clause has two pathways:

Subsection (a) is open to any reporter, TCRA member or not. To qualify, the applicant must (1) be engaged in the practice of court reporting on July 1, 2009; (2) submit an affidavit setting forth past education and work experience; and (3) submit either an affidavit from a judge for whom the reporter has worked, or affidavits from three unrelated licensed attorneys, attesting to the reporter's proficiency. The applicant pays a fee. The deadline to apply was July 1, 2011.

Subsection (b) offers a streamlined pathway specifically for TCRA members in good standing. Subsection (b)(1) gives automatic licensure to TCRA members holding TCRA's "certified court reporter examination" designation as of July 1, 2009 (provided they apply within one year). Subsection (b)(3) does the same for TCRA members holding the "registered professional reporter" designation or higher from a national professional body (NCRA, NVRA, or AAERT).

AG Cooper concluded the statute is constitutional for two reasons.

First, it does not actually exclude non-members. Anyone practicing on July 1, 2009 can still grandfather in under subsection (a), regardless of TCRA membership, by submitting affidavit evidence of proficiency. The streamlined TCRA pathway is an additional option for those who already hold a TCRA or national-association credential, not a substitute for the open subsection (a) pathway.

Second, even if the TCRA pathway were viewed as a separate classification, it survives rational-basis review (Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978)). TCRA was formed to "establish and maintain a proper standard of proficiency in the profession of court reporting"; it has a published code of professional ethics; it operates a voluntary certification program with educational and credentialing requirements. Those purposes line up with the General Assembly's stated purpose for the Act: protecting the public from incompetent court reporters whose work affects "personal freedom and property." Where a private credentialing program shares the same goals as the licensing statute, the legislature has a rational basis for treating membership as a proxy for proficiency.

Court reporting in Tennessee is not a fundamental right and court reporters are not a suspect class, so the grandfather clause is reviewed under rational basis (the most deferential standard of constitutional review). The legislature does not have to use the best, most accurate, or least restrictive classification. It just has to have a reason that a reasonable person could imagine.

The opinion is short and unsurprising for occupational-licensing law. Grandfather clauses in new licensing schemes are routinely upheld. Tying a streamlined pathway to membership in an established professional body is a common technique and is generally sustained on rational-basis grounds, particularly when (as here) an alternative non-membership pathway is also provided.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The grandfather clause's deadlines (July 1, 2011 application deadline for non-TCRA reporters; one-year window for TCRA members from July 1, 2010) have long since passed. Anyone seeking court reporter licensure in Tennessee today must apply through the standard examination process administered by the Board of Court Reporting, not through the original grandfather provisions. The Tennessee Court Reporter Act has also been amended since 2010; verify the current version of Tenn. Code Ann. §§ 20-9-601 et seq. before relying on any specific licensing requirement.

Common questions

Q: What is a "grandfather clause" in occupational licensing?
A: A provision that exempts people already practicing a regulated occupation from new licensure requirements, typically by giving them automatic or streamlined licensure based on their existing experience. The label comes from post-Reconstruction voting laws that exempted descendants of pre-Civil War voters; in modern occupational-licensing context it just means "people already doing this work get a pass."

Q: Why does Tennessee require court reporters to be licensed at all?
A: Court reporters produce the official transcript of testimony in court proceedings. Their accuracy can affect appeals, sentencing, and the outcome of civil disputes. Tenn. Code Ann. § 20-9-601 frames licensing as a public-protection measure: people's freedom and property may turn on whether the transcript correctly reflects what was said in court.

Q: What is rational-basis review?
A: The most deferential level of constitutional review under the Equal Protection Clause. A statutory classification will be upheld if "any state of facts may reasonably be conceived to justify it" (Harrison v. Schrader). The classification need not be the best fit, the most efficient, or the least burdensome; it just needs a conceivable rational reason.

Q: Why isn't a more demanding constitutional review applied?
A: Because court reporting is not a fundamental constitutional right (like voting or marriage), and court reporters are not a suspect class (like racial or religious minorities). When a classification touches neither of those, courts apply rational basis.

Q: Could a non-TCRA reporter who missed the 2011 deadline still practice?
A: Not as a grandfathered licensee. Once the 2011 deadline passed, anyone who had not applied for grandfathering had to obtain licensure through the standard examination process. That is still true today: practicing court reporters in Tennessee must hold a current license, obtained through the Board of Court Reporting's examination and fee requirements.

Q: Can a state require membership in a private professional association as a condition of licensure?
A: That's a different (and harder) question, and is not what this statute does. Subsection (a) of the grandfather clause expressly does not require TCRA membership; it only requires affidavit evidence of proficiency. Mandatory professional-association membership requirements implicate First Amendment freedom-of-association concerns that this opinion does not address.

Background and statutory framework

The Tennessee Court Reporter Act of 2009 (Tenn. Code Ann. §§ 20-9-601 through 616) created a comprehensive licensing scheme for court reporters in Tennessee. Before the Act, court reporting was largely unregulated at the state level, with quality assured through judicial selection, court-rule requirements, and voluntary national certifications (NCRA, NVRA, AAERT). The Act centralized licensure in a Board of Court Reporting and required all practicing reporters to be licensed.

Like most occupational-licensing statutes, the Act recognized that imposing a new examination requirement on people who had already been practicing for years would be both unfair and unnecessary. Existing reporters had demonstrated their competence in the marketplace. So the Act included a grandfather clause at § 20-9-613.

The grandfather clause distinguished between two groups: (a) all practicing reporters, who could submit affidavit evidence of competence; and (b) TCRA members holding existing TCRA or national-association credentials, who could obtain automatic licensure on a streamlined basis. Subsection (a) is the broader path. Anyone practicing on July 1, 2009, regardless of TCRA membership, could grandfather in by submitting (1) an affidavit detailing education and work experience and (2) either an affidavit from a judge for whom they had worked or affidavits from three unrelated licensed attorneys attesting to the reporter's proficiency.

Subsection (b) offers a faster route specifically for TCRA members who already had earned recognized certifications. Subsection (b)(1) covers TCRA members with TCRA's "certified court reporter examination" designation. Subsection (b)(2) gives TCRA members with the certified court reporter designation a one-year window to apply, after which they would have to take the new licensure examination. Subsection (b)(3) covers TCRA members holding the National Court Reporters Association's "registered professional reporter" designation or higher (or the equivalent from NVRA or AAERT).

The constitutional question is whether the existence of the streamlined TCRA pathway in subsection (b) renders the statute unconstitutional. The AG concludes it does not.

The rational-basis standard the AG applies is well established. Harrison v. Schrader, 569 S.W.2d 822, 825 (Tenn. 1978), holds that any statutory classification not implicating a fundamental right or suspect class will be upheld "if some reasonable basis can be found for the classification, or if any state of facts may reasonably be conceived to justify it."

Applying that standard, the AG identifies the rational basis: TCRA's organizational purpose, ethics code, and certification program align with the Act's public-protection goal. TCRA describes its mission as establishing and maintaining "a proper standard of proficiency in the profession of court reporting"; it publishes a Code of Professional Ethics requiring fairness, impartiality, confidentiality, accuracy, and integrity; it operates a voluntary certification program requiring credentialing, education, or experience. Where a private body's mission and standards line up with the legislative purpose, the legislature can rationally treat membership in good standing (combined with a recognized certification) as a reliable proxy for the competence the licensure scheme is trying to ensure.

Importantly, the opinion notes that subsection (b) does not authorize licensure for TCRA membership alone. Subsection (b)(1) requires the certified-court-reporter examination designation; subsection (b)(3) requires a national-association registered-professional-reporter designation. So the TCRA pathway is really a TCRA-plus-additional-credential pathway. That additional credential supplies the proficiency basis; TCRA membership is just the proxy that ensures the credential is current and the holder is in good standing with a peer body.

The non-membership pathway in subsection (a) means the statute does not actually disadvantage non-members; it just gives them a slightly more paperwork-heavy route to the same outcome.

Citations and references

Statutes:

• Tenn. Code Ann. § 20-9-601 (purpose of Tennessee Court Reporter Act of 2009)
• Tenn. Code Ann. § 20-9-609 (court reporter examination)
• Tenn. Code Ann. § 20-9-611 (licensure fee)
• Tenn. Code Ann. § 20-9-613 (grandfather clause)
• Tenn. Code Ann. §§ 20-9-601 through 616 (Tennessee Court Reporter Act of 2009)

Cases:

• Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978), Tennessee Supreme Court (rational-basis test)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-038.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Rules of Board of Court Reporting

QUESTION

Does Tenn. Code Ann. § 20-9-613 unconstitutionally exclude from grandfather court reporter licensure status ("grandfathering") individuals who are not members of the Tennessee Court Reporters Association ("TCRA") and include individuals on the basis of their TCRA membership?

OPINION

No, the statute provides a mechanism for individuals who are not TCRA members to gain grandfather court reporter licensure status as court reporters and in any event has a rational basis to include TCRA membership among the qualifications making an individual eligible for grandfathering.

ANALYSIS

In the Tennessee Court Reporter Act of 2009 ("the Act"), the General Assembly set out a comprehensive scheme regulating the licensure and practice of court reporting in Tennessee. See Tenn. Code Ann. §§ 20-9-601 through 616. In order to be licensed as a court reporter, an individual ordinarily is required both to pass an examination and to pay a fee. Tenn. Code Ann. §§ 20-9-609 and 611. However, the Act also contains a "grandfather clause," which extends licensure to certain individuals without requiring that they pass an examination:

(a) Any person who is engaged in the practice of court reporting on July 1, 2009, and who provides to the board an affidavit setting forth past education and work experience as a court reporter and an affidavit of a judge for whom the person has worked as an official court reporter or affidavits of three (3) licensed attorneys, unrelated by blood or marriage to the person, and who have utilized the services of the court reporter, which attest to the court reporter's proficiency in court reporting, upon payment of a fee in an amount determined by the board, shall be licensed to practice as a court reporter. The deadline for receiving applications for grandfathering shall be July 1, 2011.

(b)(1) Any member in good standing of the Tennessee Court Reporters Association who holds the certified court reporter examination designation on July 1, 2009, upon payment of the licensure fee in an amount determined by the board, shall be automatically granted a license pursuant to this part and thereby may practice as a court reporter.

(2) Any member in good standing of the Tennessee Court Reporters Association who holds the certified court reporter designation on July 1, 2009, and does not apply for licensure within one (1) year of July 1, 2010, shall be required to pass the licensed court reporter examination and pay applicable licensure fees in order to become a licensed court reporter.

(3) Any member in good standing of the Tennessee Court Reporters Association who holds the registered professional reporter designation, or higher, from the NCRA, NVRA or AAERT on July 1, 2009, upon payment of the licensure fee in an amount determined by the board, shall be automatically granted a license pursuant to this part and thereby may practice as a court reporter.

Tenn. Code Ann. § 20-9-613 ("the grandfather clause").

The grandfather clause does not exclude every non-member of the Tennessee Court Reporters Association. On the contrary, subsection (a) authorizes the grandfathering of any individual, provided that such an individual was engaged in the practice of court reporting on July 1, 2009, and can provide affidavit evidence from a judge or three attorneys attesting to the individual's proficiency.

In subsection (b) the grandfather clause includes TCRA membership among its classifications of individuals eligible for grandfathering. Specifically, subsection (b)(1) authorizes the grandfathering of TCRA members who also have earned from TCRA a certified court reporter examination designation on July 1, 2009. Subsection (b)(3) authorizes the grandfathering of TCRA members who also have earned a registered professional reporter designation from one of several national trade associations.

Legislation which, like the grandfather clause, creates classifications that do not impermissibly interfere with a fundamental right or disadvantage a suspect class are subject to "the rational basis test." Harrison v. Schrader, 569 S.W.2d 822, 825 (Tenn. 1978). Thus, "if some reasonable basis can be found for the classification, or if any state of facts may reasonably be conceived to justify it, the classification will be upheld." Id.

TCRA membership alone does not entitle an individual to grandfathering; the grandfather clause also requires some showing of state or local educational credentialing. There is a rational basis to include TCRA membership among the qualifications making certain individuals eligible for grandfather licensure. The Act "is intended to establish and maintain a standard of competency for individuals engaged in the practice of court reporting . . . for the protection of the public . . . whose rights to personal freedom and property are affected by the competency of court reporters." Tenn. Code Ann. § 20-9-601. Similarly, TCRA "was formed to establish and maintain a proper standard of proficiency in the profession of court reporting." Tennessee Court Reporters Association, TCRA Welcome, at http://www.tncra.com/. TCRA has published an ethical code that sets out standards requiring members of the Association to be fair and impartial, to keep confidences, to be truthful and accurate, and otherwise to maintain the integrity of the profession. Tennessee Court Reporters Association, Code of Professional Ethics, at http://www.tncra.com/about-tcra/code-of-ethics.html. TCRA has developed a certification program aimed at promoting good practice and protecting the public that requires applicants to demonstrate adequate credentialing, education, or experience in order to gain certification. Tennessee Court Reporters Association, Voluntary Certified Court Reporter Program, at http://www.tncra.com/images/stories/pdf/ccr_guidelines.pdf. The congruence of the purposes and goals of TCRA with those of the General Assembly in enacting the Tennessee Court Reporter Act of 2009 furnishes a rational basis to include TCRA membership as a qualification for an individual to be granted grandfather licensure status. Accordingly, the Act's grandfather clause is a constitutionally valid enactment.

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

DOUGLAS EARL DIMOND
Senior Counsel

Requested by:

Honorable Susan Lynn
State Representative
215 War Memorial Building
Nashville, TN 37243-0157