Can the Tennessee legislature require the Governor to appoint members of a state board only from a list of names submitted by a private trade or professional association?

Plain-English summary

Tennessee has many statutes that require the Governor to pick board members from a list of names submitted by a private trade or professional group. The Tennessee Medical Laboratory Board, the Board of Examiners for Nursing Home Administrators, the Board of Nursing, the Motor Vehicle Commission, the Dental Examiners, and others all use this kind of "list submission" appointment process.

Senator Bo Watson asked whether this arrangement is constitutionally suspect. The AG said no.

The reasoning starts with a long-standing rule from the Tennessee Supreme Court: the Governor does not have an inherent constitutional right to appoint executive officers (Richardson v. Young, 122 Tenn. 471, 125 S.W. 664 (1909)). Because the constitution does not grant that power directly, the General Assembly may set the appointment method itself, including by requiring nomination by a private group.

The Governor still has appointment authority. The list-submission statutes simply narrow the candidate pool. The Tennessee Supreme Court has twice upheld this kind of arrangement (Ford Motor Co. v. Pace; General Motors Corp. v. Capital Chevrolet Co.), and the predominant view in other states is the same. The AG also notes that statutes using "may" instead of "shall" for picking from the list provide even more constitutional cover.

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.

Common questions

Q: Why is this not a delegation of the Governor's authority?
A: Because the Governor still makes the actual appointment. The private organization only submits names. The Governor decides who, from the list, gets the seat. As General Motors Corp. v. Capital Chevrolet Co. notes, there is no requirement that the Governor accept any particular nominee, or even accept the original list as submitted (the Governor can request more names).

Q: Doesn't the Governor have inherent appointment power under the constitution?
A: Not in Tennessee. The Tennessee Supreme Court held in Richardson v. Young that the Governor is not constitutionally vested with an inherent power to appoint state officials in the executive branch. That makes Tennessee different from some other states whose constitutions explicitly grant the executive that authority.

Q: What if a statute gave a private group the exclusive power to make the appointment, with no role for the Governor?
A: The AG explicitly said that question was not before him in this opinion. The opinion only covers the system where the Governor retains the final appointment power. A statute that vested the appointment itself in a private body might raise different constitutional concerns.

Q: Does this violate the prohibition on special privileges in Tenn. Const. art. XI, § 8?
A: No. The AG's earlier Opinion 83-458 explained the majority view: a statute that lets a private association nominate board candidates does not confer a "privilege" on the association; it imposes a duty for the public benefit. So Article XI, § 8 (special privileges clause) is not implicated.

Q: What examples of this kind of appointment process exist in Tennessee law?
A: Just from this opinion: Tennessee Medical Laboratory Board (Tenn. Code Ann. § 68-29-109, names from the Tennessee Medical Association and Tennessee Hospital Association), Board of Examiners for Nursing Home Administrators (§ 63-16-102), Board of Nursing (§ 63-7-202, names from the Tennessee State Nurses' Association), and the Tennessee Motor Vehicle Commission (§ 55-17-103(a), names from the Tennessee Automotive Association).

Q: Would using "may" instead of "shall" matter?
A: The AG noted that "may" gives the Governor more discretion than "shall" and would further shield the appointment system from constitutional challenge. So if a legislator drafting such a statute wants belt-and-suspenders constitutional protection, "may appoint from the list" is safer than "shall appoint from the list."

Background and statutory framework

The constitutional question turns on two distinct strands.

First, the separation-of-powers argument: does giving the legislature (or a private body authorized by legislation) any role in executive appointments improperly intrude on the Governor's authority? Tennessee's answer, going back to Richardson v. Young (1909), is that the Governor's appointment authority is whatever the General Assembly says it is. The constitution does not vest the Governor with an inherent appointment power, so the legislature can shape it, including by limiting nominations to lists from private bodies.

Second, the special-privileges argument under Tenn. Const. art. XI, § 8: does giving one private association the right to nominate amount to an unconstitutional special privilege for that group? The majority view (and the view adopted by the Tennessee AG in Opinion 83-458) is that the nomination role is a duty for the public benefit, not a private privilege.

The Tennessee Supreme Court reinforced this analysis in Ford Motor Co. v. Pace (1960), upholding the Tennessee Motor Vehicle Commission's appointment-from-list scheme against challenges under Article 1, Section 8 (no man can be taken without due course of law), Article 1, Section 17 (open courts), and Article 6, Section 11 (judicial structure). The Court relied on its earlier decision in Prosterman v. Tennessee State Bd. of Dental Examiners (1934), which had upheld a similar provision for the Dental Examiners. Two decades later, in General Motors Corp. v. Capital Chevrolet Co. (1983), the Court reaffirmed Ford Motor and stressed that the Governor retains discretion to refuse a particular nominee or even the entire submitted list.

Citations and references

Statutes and constitutional provisions:

• Tenn. Code Ann. § 68-29-109 (Tennessee Medical Laboratory Board)
• Tenn. Code Ann. § 63-16-102 (Board of Examiners for Nursing Home Administrators)
• Tenn. Code Ann. § 63-7-202 (Tennessee Board of Nursing)
• Tenn. Code Ann. § 55-17-103(a) (Tennessee Motor Vehicle Commission)
• Tenn. Const. art. I, § 8; art. I, § 17; art. VI, § 11; art. XI, § 8

Cases:

• Richardson v. Young, 122 Tenn. 471, 125 S.W. 664 (1909) (Governor has no inherent power to appoint executive officers)
• Ford Motor Co. v. Pace, 335 S.W.2d 360 (Tenn. 1960) (upholding list-submission appointments)
• Prosterman v. Tennessee State Bd. of Dental Examiners, 73 S.W.2d 687 (Tenn. 1934)
• General Motors Corp. v. Capital Chevrolet Co., 645 S.W.2d 230 (Tenn. 1983)

Prior AG opinion:

• Op. Tenn. Att'y Gen. No. 83-458 (Oct. 26, 1983)

Secondary source:

• Annot., Validity of Delegation to Private Persons or Organizations of Power to Appoint or Nominate to Public Office, 97 A.L.R.2d 361 (1964)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-067.pdf

Original opinion text

Submission by Private Entities of Lists for Appointments to State Boards and Agencies

QUESTION

Is it constitutionally suspect for the General Assembly to delegate the Governor's appointing authority to a private entity for the purpose of submitting lists from which the Governor would appoint members of a state licensing board or agency?

OPINION

As this Office has previously opined, requiring the Governor to make appointments to a state board or agency from a list of names submitted by a private entity does not violate the doctrine of separation of powers or otherwise violate the Tennessee Constitution.

ANALYSIS

Various Tennessee statutes require the Governor to appoint the members of certain state boards and agencies from lists of names submitted by one or more private entities. For example, Tenn. Code Ann. § 68-29-109 provides that the Governor "shall appoint" the members of the Tennessee Medical Laboratory Board from lists submitted by various organizations listed at subsection (d), including the Tennessee Medical Association and the Tennessee Hospital Association. Likewise, Tenn. Code Ann. § 63-16-102 provides that the members of the Board of Examiners for nursing home administrators "shall be appointed" by the Governor from lists submitted by the Tennessee Hospital Association, the Tennessee Health Care Association, and other organizations.

The instant question is whether this amounts to an unconstitutional delegation of the Governor's appointing authority. But, in fact, it is not a delegation of that authority, since the Governor retains the power to appoint board members. Thus, the thrust of the inquiry is whether the Governor's authority may be so restricted. The Tennessee Constitution, however, does not address such appointing authority. As a result, the General Assembly may vest that authority as it chooses. Whether such appointing authority could be vested exclusively in a private entity or organization is not before us, since the Governor retains the ultimate appointing authority under all of the statutory schemes at issue. This analysis is consistent with the thorough and enduring interpretation in Richardson v. Young, 122 Tenn. 471, 125 S.W. 664 (1909), of the manner in which the Tennessee Constitution distributes the appointment authority between the General Assembly and the Governor.

In Opinion No. 83-458, this Office opined that a similar system established by Tenn. Code Ann. § 63-7-202 does not violate the doctrine of separation of powers or otherwise violate the Tennessee Constitution. This section requires the Governor to appoint members of the Tennessee Board of Nursing from a list of names submitted by the Tennessee State Nurses' Association, provided that the names are submitted at least forty-five days prior to the expiration of the departing member's term of office. The opinion states:

This office has previously opined that statutory provisions which require the Governor to appoint members to administrative state agencies from lists submitted by private professional or trade associations are not unconstitutional. . . . Although the Tennessee appellate courts have not ruled on the validity of such provisions, courts in other jurisdictions have upheld such provisions.

The majority of cases in other jurisdictions have held that statutes similar to T.C.A. § 63-7-202 do not confer a special "privilege" or right upon an association but rather confer a duty from which the general public benefits. Thus, such provisions would not violate Article XI, § 8 of the Tennessee Constitution.

The majority of cases have also held that these statutes are not a violation of the separation of powers doctrine. Unless the state constitution specifically vests the governor with authority to appoint executive officers, the cases have held that the legislature may establish the method to make official appointments. The Tennessee Supreme Court has held that the governor is not vested with an inherent power to appoint state officials in the executive branch. Richardson v. Young, 122 Tenn. 471, 125 S.W. 664 (1909). Therefore, it is the opinion of this office that T.C.A. § 63-7-202 is not a violation of the separation of powers.

Op. Tenn. Att'y Gen. 83-458 (Oct. 26, 1983). The Tennessee Supreme Court has twice upheld a similar system used to appoint members of the Tennessee Motor Vehicle Commission, all of whom are "to be selected and appointed by the governor from a list of qualified persons furnished by the Tennessee Automotive Association." Tenn. Code Ann. § 55-17-103(a). In Ford Motor Co. v. Pace, 335 S.W.2d 360 (Tenn. 1960), the Court held that this system did not violate Article 1, Section 8; Article 1, Section 17; or Article 6, Section 11 of the Tennessee Constitution. Id. at 367 (citing Prosterman v. Tennessee State Bd. of Dental Examiners, 73 S.W.2d 687 (Tenn. 1934) (upholding similar provision for Tennessee State Board of Dental Examiners)). Although some decisions from other States have held this type of system to be unconstitutional, the predominant view seems to be that such arrangements do not unconstitutionally delegate or restrict the appointment authority. The decisions from those state courts which interpret the doctrine of separation of powers similarly to Richardson v. Young are particularly inclined to uphold these sorts of provisions. See Annot., Validity of Delegation to Private Persons or Organizations of Power to Appoint or Nominate to Public Office, 97 A.L.R.2d 361 (1964).

In General Motors Corp. v. Capital Chevrolet Co., 645 S.W.2d 230 (Tenn. 1983), the Court quoted without criticism the discussion in Ford Motor Co. The Court noted that "[t]here is no requirement that the Governor accept any particular nominee, or that he accept an original list submitted." Id. at 236. Accordingly, it appears that although a requirement that the Governor "shall" appoint the members of a board or agency from a list submitted by a private organization would be permissible, a provision allowing additional discretion on the Governor's part, such as changing "shall" to "may," would further shield the system of appointments from constitutional challenge.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GINA J. BARHAM
Deputy Attorney General

JONATHAN N. WIKE
Assistant Attorney General

Requested by:

The Honorable Bo Watson
State Senator
6A Legislative Plaza
Nashville, TN 37243-0211