Can the Tennessee Governor still appoint judges after the Judicial Nominating Commission was 'sunset' and shut down?

Subject

Opinion No. 13-76, Authority of Governor to Fill Judicial Vacancies, October 9, 2013

Plain-English summary

Gov. Bill Haslam asked whether he could still appoint judges to fill vacancies after the Judicial Nominating Commission (JNC) had been "sunset" by the General Assembly. The JNC was terminated as of June 30, 2012, and its one-year wind-up period ended June 30, 2013. The AG concluded yes, the governor still had appointment authority. The reason was a 2009 statute that the General Assembly had specifically enacted to address exactly this situation.

Constitutional framework. Article VII, § 4 of the Tennessee Constitution charges the General Assembly with providing for the filling of all vacancies "not otherwise directed or provided by this Constitution." For judges, the Constitution sets dates for judicial elections but is silent on how to fill mid-term vacancies. The General Assembly fills the gap by statute.

The failsafe. When the General Assembly enacted Chapter 517 of 2009 (which created the JNC), it included Tenn. Code Ann. § 17-4-113, a failsafe provision: if the JNC doesn't furnish a list of three nominees to the governor within 60 days of written notice that a vacancy occurred, "then the governor may fill the vacancy by appointing any person 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."

Reading the failsafe to cover JNC termination. The AG concluded the failsafe operated even when the JNC was terminated entirely (not just when it failed to act in time). Two reasons: (1) avoiding the prejudice to the public interest that would result from a non-functioning judiciary, and (2) the legislative history of Chapter 517, which showed the General Assembly specifically intended § 17-4-113 to cover the post-sunset scenario. The AG quoted in detail an exchange on the Senate floor between Senators Dewayne Bunch and Mark Norris establishing that Sen. Norris (the bill's sponsor and Senate Majority Leader) understood § 17-4-113 to cover JNC termination, leading Sen. Bunch to withdraw a redundant amendment.

The AG distinguished an earlier 2009 opinion (Op. 09-43) that had said the Judicial Selection Commission's sunset would leave no appointment authority. That opinion predated Chapter 517's failsafe.

Currency note

This opinion was issued in 2013. 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.

Tennessee's judicial selection framework changed substantially in 2014 when voters approved Amendment 2 to the Tennessee Constitution, creating the current appellate judicial appointment-and-confirmation process. The JNC structure described in this opinion no longer exists. Anyone analyzing a current judicial vacancy should consult the current Tennessee Constitution and the current Tenn. Code Ann. Title 17 provisions.

Background and statutory framework

Constitutional vacancy authority. Tenn. Const. art. VII, § 4: "The election of all officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct." Article VII, § 5, addresses judicial election dates.

Statutory framework (2013 version). Tenn. Code Ann. §§ 17-4-101 to -201 governed judicial selection. Chapter 517 of 2009 had repealed and replaced the prior framework, creating the 17-member JNC. Tenn. Code Ann. § 17-4-109 set out the JNC's duty to provide a list of three nominees within 60 days of receipt of written notice from the governor. § 17-4-112(a) governed governor's selection from JNC nominees. § 17-4-113 created the failsafe. § 17-4-118 handled trial court vacancies similarly.

Sunset framework. Tenn. Code Ann. § 4-29-233 sunset the JNC as of June 30, 2012. Tenn. Code Ann. § 4-29-112 allowed a one-year wind-up period.

Prior AG opinions on sunset effects. Tenn. Att'y Gen. Op. 09-43 (Mar. 26, 2009) (Judicial Selection Commission termination); Tenn. Att'y Gen. Op. 98-045 (Tennessee State Racing Commission); Tenn. Att'y Gen. Op. 91-38 (Health Facilities Commission); Tenn. Att'y Gen. Op. 82-1 and 95-45 (Public Service Commission). Each found that without a statutory transfer or failsafe, sunset suspended regulatory authority.

Avoidance of public-prejudice construction. State ex rel. Maner v. Leech, 588 S.W.2d 534, 540 (Tenn. 1979), and related cases require courts to avoid statutory readings that impair, frustrate, or defeat the object of a statute, or work to the prejudice of the public interest.

Futility doctrine. State v. Yoakum, 297 S.W.2d 635, 642 (Tenn. 1956), Colonial Pipeline v. Morgan, 263 S.W.3d 827, 844 (Tenn. 2008), and Freeman Industries v. Eastman Chem. Co., 172 S.W.3d 512, 526 (Tenn. 2005), recognize that compliance with administrative procedures is excused when it would be useless and futile. The AG applied this to giving notice to a non-existent JNC.

Common questions

What is "sunset" in Tennessee government?

Tennessee's Sunset Law (Title 4, Chapter 29) automatically terminates regulatory boards and commissions after a set period unless the General Assembly reauthorizes them. The point is to force periodic legislative review. After termination, the agency gets a one-year wind-up period. By default, no successor entity exists unless the General Assembly creates one.

Why was the JNC sunset?

The General Assembly debated judicial selection extensively. Some legislators preferred direct popular election of appellate judges (consistent with the literal text of Tenn. Const. art. VI, § 3). Others preferred merit-based appointment. The 2012 sunset was a political mid-step toward the 2014 constitutional amendment.

Was the AG's reading of the legislative history a stretch?

The AG put significant weight on a single Senate floor colloquy. Some commentators argued that Senator Norris's stated interpretation, however clear, was not the same as a statute. Courts generally do consider unambiguous statements by a bill's sponsor on the floor, but the weight varies. Here, the textual analysis (the failsafe applies "if the judicial nominating commission does not furnish a list") and the avoidance doctrine independently supported the conclusion.

Could the legislature have prevented this by drafting differently?

Yes. The 2009 sunset of the Judicial Selection Commission left a gap because the failsafe provision had been repealed in 1994. The 2009 enactment of § 17-4-113 was designed precisely to prevent a repeat. If the General Assembly had wanted to prevent gubernatorial appointment after JNC sunset, it would have had to amend or repeal § 17-4-113.

What happened to judicial vacancies between 2013 and the 2014 amendment?

Governor Haslam relied on § 17-4-113 to make several appointments during that period. The 2014 constitutional amendment then provided a new selection mechanism for appellate judges, and the General Assembly enacted Tenn. Code Ann. § 17-4-115 and related provisions implementing it.

Citations

Tenn. Code Ann. §§ 17-4-101 to -201, 17-4-101(1), 17-4-109, 17-4-112(a), 17-4-113, 17-4-113(a), 17-4-118, 4-29-112, 4-29-233. Tenn. Const. art. VII, §§ 4, 5. 2009 Tenn. Pub. Acts ch. 517; 1971 Tenn. Pub. Acts ch. 198; 1994 Tenn. Pub. Acts ch. 942. Cases: State ex rel. Maner v. Leech, 588 S.W.2d 534 (Tenn. 1979); Tidwell v. Collins, 522 S.W.2d 674 (Tenn. 1975); Burns v. Duncan, 133 S.W.2d 1000 (Tenn. Ct. App. 1939); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010); In re C.K.G., 173 S.W.3d 714 (Tenn. 2005); Graham v. Caples, 325 S.W.3d 578 (Tenn. 2010); State v. Yoakum, 297 S.W.2d 635 (Tenn. 1956); Colonial Pipeline v. Morgan, 263 S.W.3d 827 (Tenn. 2008); Freeman Industries v. Eastman Chem. Co., 172 S.W.3d 512 (Tenn. 2005). Prior AG opinions: Op. 09-43 (Mar. 26, 2009); Op. 98-045 (Feb. 17, 1998); Op. 91-38 (Apr. 26, 1991); Op. 82-1 (Jan. 5, 1982); Op. 95-45 (May 1, 1995).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-076.pdf

Original opinion text

October 9, 2013

Opinion No. 13-76

Authority of Governor to Fill Judicial Vacancies

QUESTION

Does the Governor have the authority to appoint a qualified person to fill a judicial vacancy that occurs after the Judicial Nominating Commission has been terminated and has wound up its affairs pursuant to Tennessee's "sunset" law?

OPINION

Following the enactment in 2009 of Tenn. Code Ann. § 17-4-113, the Governor has the authority to appoint any qualified person to fill a judicial office that becomes vacant after the termination and wind-down of the Judicial Nominating Commission.

ANALYSIS

This opinion request inquires about the Governor's authority to appoint a qualified person to fill a judicial vacancy that occurs after the Judicial Nominating Commission ("JNC") has been terminated and has wound up its activities pursuant to Tennessee's "sunset" law. The JNC was terminated by the General Assembly as of June 30, 2012, and the one-year period during which the JNC was allowed by statute to wind up its affairs ended on June 30, 2013. See Tenn. Code Ann. § 4-29-233 (terminating the judicial nominating commission as of June 30, 2012); Tenn. Code Ann. § 4-29-112 (authorizing a one-year time period for a terminated state entity to wind up its affairs).

The Tennessee Constitution, Article VII, Section 4, specifies that: "The election of all officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct." With regard to judicial vacancies, the Constitution provides in Article VII, Section 5, for the dates on which judicial elections shall be held, but otherwise the Constitution is silent on how to fill judicial vacancies. Accordingly, under the general delegation of authority contained in Article VII, Section 4, the General Assembly is charged with maintaining the continuous and efficient operation of Tennessee's judicial branch by providing a mechanism for "the filling of all [judicial] vacancies."

Pursuant to this constitutional authority, the General Assembly in 1971 enacted statutory provisions generally allowing the Governor to fill judicial vacancies from a list of nominees selected by an appointed advisory body. See 1971 Tenn. Pub. Acts, ch. 198. These statutes have been amended on several occasions, including significant recent changes by 2009 Tenn. Pub. Acts, ch. 517 ("Chapter 517"), and are currently codified at Tenn. Code Ann. §§ 17-4-101 to -201.

In 2009, Chapter 517 repealed and replaced in their entirety the code provisions related to filling judicial vacancies at both the appellate and trial level. In so doing, it introduced several changes to the process, including creating the seventeen-member JNC to review applicants for vacancies in the judiciary and to provide to the Governor a list of nominees whom the JNC selects as best qualified to fill the vacancy. See Tenn. Code Ann. §§ 17-4-102 to -109. Specifically, Chapter 517 gave the following duties to the JNC in filling appellate judicial vacancies:

(a)(1) If a vacancy occurs during the term of office of a judge of the court of appeals or court of criminal appeals, then the judicial nominating commission shall, at the earliest practicable date, hold a public meeting in the grand division from which the vacancy is to be filled. However, if an incumbent judge fails to file a written declaration of candidacy required by § 17-4-114 or § 17-4-115, or if the commission is reliably informed that a vacancy is impending for another reason, then the public meeting may be held prior to the actual occurrence of the vacancy.

(2) If a vacancy occurs during the term of office of a judge of the supreme court, then the judicial nominating commission shall, at the earliest practicable date, hold a public meeting in Nashville. However, if an incumbent judge fails to file a written declaration of candidacy as required by § 17-4-114 or § 17-4-115, or if the commission is reliably informed that a vacancy is impending for another reason, then the public meeting may be held prior to the actual occurrence of the vacancy.

. . . .

(e) As soon as practicable, and no later than sixty (60) days from receipt of written notice from the governor that a vacancy has occurred, the commission, with the assent of a majority of all the members to which it is entitled under § 17-4-102(a), shall select three (3) persons whom the commission deems best qualified and available to fill the vacancy and shall certify the names of the three (3) persons to the governor as nominees for the judicial vacancy. However, if an incumbent judge fails to file a written declaration of candidacy as required by § 17-4-114 or § 17-4-115, or if the commission is reliably informed that a vacancy is impending for any other reason, then the commission may meet, select such persons and certify the names of such nominees to the governor prior to actual receipt of written notice from the governor that a vacancy has occurred.

Tenn. Code Ann. § 17-4-109. An appellate judicial vacancy can be filled by the Governor from an initial panel of nominees received by the Governor from the JNC, or the Governor can reject the JNC's initial panel of three nominees and request a second panel of three nominees. Tenn. Code Ann. § 17-4-112(a). The Governor then, within sixty days following receipt of the additional panel, must fill the vacancy "by appointing any one (1) of the six (6) nominees certified by the commission." Id. Chapter 517 enacted a similar process involving the JNC for filling judicial vacancies at the trial court level, although the Governor cannot request a second panel of three nominees for a trial court vacancy. See Tenn. Code Ann. § 17-4-118.

The JNC created in 2009 was subject to a standard two-year "sunrise" provision, whereby it would be terminated after two years unless its existence was reauthorized. Thereafter, the JNC was "sunset" and terminated on June 30, 2012, pursuant to Tenn. Code Ann. § 4-29-233. The JNC wound up its business on June 30, 2013, in accordance with Tenn. Code Ann. § 4-29-112.

This Office previously opined that when the General Assembly terminated the Judicial Selection Commission, created by 1994 Tenn. Pub. Acts, ch. 942, through a "sunset" provision, but did not expressly repeal or effect an implied repeal of the statutory scheme for appointing judges, the General Assembly intended that the appointment process overseen by the Commission be suspended. See Tenn. Att'y Gen. Op. 09-43 (Mar. 26, 2009) (opining that under then-existing law judicial vacancies could not be filled by appointment following the 2009 "sunset" of the Judicial Selection Commission, as that regulatory scheme would be deemed suspended and unenforceable without further legislation being enacted). The Office has reached the same conclusion in other situations in which a "sunset" provision terminated an agency or commission.

Unlike the statutory scheme involving the Judicial Selection Commission that was the subject of Opinion No. 09-43, Chapter 517 contained a new provision that authorized the Governor to appoint any qualified person to a judgeship in the event that the JNC failed to act in a timely manner. Specifically, Section 1 of Chapter 517, codified at Tenn. Code Ann. § 17-4-113, provides as follows:

(a) If the judicial nominating commission does not furnish a list of three (3) nominees to the governor within sixty (60) days after receipt of written notice from the governor that a vacancy has occurred, then the governor may fill the vacancy by appointing any person 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.

(b) The term of a judge appointed under this section shall expire on August 31 after the next regular August election occurring more than thirty (30) days after the vacancy occurs.

This "failsafe" provision allows the Governor to fill a judicial vacancy if the JNC "does not furnish a list of three (3) nominees to the governor within sixty (60) days after receipt of written notice from the governor that a vacancy has occurred." Tenn. Code Ann. § 17-4-113(a).

The JNC's nominating function implements the General Assembly's intent "to assist the governor in finding and appointing the best qualified persons available for service" on the courts. Tenn. Code Ann. § 17-4-101(1). By also enacting the failsafe provision of Tenn. Code Ann. § 17-4-113, which allows the Governor to fill vacancies in the absence of such nominations, the General Assembly 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. This conclusion is consistent with the General Assembly's constitutional responsibility under Article VII, Section 4, to ensure the continuous existence of a competent and effective judiciary.

Under Tennessee law, courts should avoid a statutory construction that "would work to the prejudice of the public interest" or that "impairs, frustrates or defeats the object of a statute." State ex rel. Maner v. Leech, 588 S.W.2d 534, 540 (Tenn. 1979). See also Tidwell v. Collins, 522 S.W.2d 674, 676 (Tenn. 1975) (same); Burns v. Duncan, 133 S.W.2d 1000, 1007-08 (Tenn. Ct. App. 1939) (noting that "consequences cannot alter statutes, but may help to fix their meaning"). Consistent with this directive, with the legislative priorities contained within the statutory language and with the General Assembly's constitutional obligation to sustain the ongoing operation of the judicial branch, it would be logical to read the language of Tenn. Code Ann. § 17-4-113 to empower the Governor to fill judicial vacancies in all circumstances in which the JNC fails to act, including when the JNC has been terminated and therefore cannot act.

Even if a court concluded that the language of Tenn. Code Ann. § 17-4-113 is unclear on this question, the legislative history of Chapter 517 shows that the General Assembly adopted Tenn. Code Ann. § 17-4-113 in part to avoid the situation in which no authority would exist to fill judicial vacancies after the "sunset" and windup of the Judicial Selection Commission. Where the plain language of a statute does not resolve an issue, courts will consider the history and purpose of legislation in order to ascertain legislative intent. See, e.g., Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010); In re C.K.G., 173 S.W.3d 714, 724 (Tenn. 2005).

When Chapter 517 was being debated on the Senate floor during its third and final reading, Senator Dewayne Bunch proposed Senate Amendment Number 11. Senator Bunch's amendment would have provided that Tenn. Code Ann. § 17-1-301 (dealing generally with judicial vacancies) be amended to specify at the end of subsections (a), (b), and (c) that:

However, if for any reason the judicial nominating commission is clearly unable to fulfill its statutory duty to submit a panel of nominees to the governor for consideration, then the governor shall proceed to appoint a person, who is licensed to practice law in this state and who is fully qualified under the constitution and statutes of this state, to discharge the duties of the office.

Senator Bunch's proposed amendment would have granted the Governor authority to fill a judicial vacancy if the JNC were unable to submit a panel of nominees "for any reason," which Senator Bunch stated would include the JNC being "sunset."

Senator Mark Norris, the Senate Majority Leader, who was presenting the bill on the Senate floor, responded to Senator Bunch's amendment by stating that the issue was already addressed in the bill by the language now codified as Tenn. Code Ann. § 17-4-113. Senator Bunch reiterated his concern that under the bill as written, if the JNC were to sunset, "we'd be in the same place we are now," and that his Amendment No. 11 was needed so that "if this were to sunset in the future, that the authority to, for the governor to appoint an interim would still exist." Senator Norris acknowledged Senator Bunch's "valid concern," recognizing that this issue "was one of several things we were trying to address by, by the wording of the, of Judiciary Amendment [No.] 1 that's before us."

Senator Bunch then stated that the goal of his amendment was as follows: "I want to be clear that if this sunsets in the future, that the authority for the governor to make an interim appointment will exist and will not be dependent upon the bill, the committee being in existence." Senator Norris responded unequivocally, "I do agree with that Senator Bunch and I have always agreed on that proposition. So if that, if it's important for that to be part of the record, that is my interpretation of what is proposed in the amendment [Judiciary Committee Amendment No. 1] that's before us."

Following an unrelated exchange, Senator Norris returned to the subject of the effect of a JNC sunset and said, "I will respond to Senator Bunch's inquiry. I agree with him that is the, that is the intent of Judiciary Amendment [No.] 1 that is before us. I agree with his concern and his analysis of that issue and I believe that it's my intention that the bill as before us as amended addresses that in the manner which he thinks it should be." In light of Senator Norris's statement, Senator Bunch withdrew his amendment, stating, "Now that the legislative record reflects that that is the intent and that is the desire and that is the goal of this legislation, I would withdraw Amendment No. 11."

Thus, as clearly set forth in the legislative history, Senator Bunch withdrew Senate Amendment Number 11 when Senator Norris made clear that language in the pending bill, which ultimately was codified as Tenn. Code Ann. § 17-4-113, authorized the Governor to appoint any qualified applicant to fill a judicial vacancy if the JNC were terminated under the "sunset" laws.

Accordingly, consistent with the General Assembly's responsibilities under Article VII, Section 4, of the Tennessee Constitution, statutory language allowing the Governor to fill judicial vacancies even absent action by the JNC, and clearly stated legislative intent to grant the Governor the power to act even if the JNC were allowed to "sunset," the provisions of Tenn. Code Ann. § 17-4-113 should be read to operate even after the JNC's termination. Under such circumstances, the Governor would have the statutory authority to appoint any qualified person to fill a judicial vacancy. As Tenn. Code Ann. § 17-4-113 governs judicial vacancies at the trial and appellate levels, the Governor would have the power to fill vacancies at both levels.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

STEVEN A. HART
Special Counsel

Requested by:

The Honorable Bill Haslam
Governor
State Capitol
Nashville, TN 37243