Can Tennessee create a dedicated business court, and would its judges have to be elected?

Subject

Opinion No. 18-33, Establishment of a Business Court or Business Docket, July 30, 2018

Plain-English summary

Senator Brian Kelsey asked whether Tennessee could set up a dedicated business court along the lines of Delaware's Court of Chancery or North Carolina's Business Court, and if so, who would create it and how the judges would get there. The Attorney General split the question into three parts.

First, only the Legislature can create a "business court" as a freestanding inferior court. Article VI, § 1 of the Tennessee Constitution vests judicial power in the Supreme Court and "in such Circuit, Chancery and other inferior Courts as the Legislature shall from time to time, ordain and establish." A long line of Tennessee Supreme Court cases (Ward, McCulley, Spurgeon, Duncan, White) reads that clause as giving the Legislature exclusive authority over the creation, jurisdiction, and reorganization of inferior courts. The Supreme Court does not have the power to invent a new court on its own.

Second, the Supreme Court can do something narrower: establish a "business docket" inside an existing inferior court, using its inherent supervisory authority over the Tennessee judicial system. The opinion specifically cites the Davidson County Business Court Docket Pilot Project as an example of the Supreme Court already exercising this authority. The catch is that the Supreme Court cannot use a docket to alter an inferior court's jurisdiction; only the Legislature can do that.

Third, whichever path is chosen, the presiding judge must be elected. Article VI, § 4 mandates that judges of the Circuit, Chancery, and other inferior courts "shall be elected by the qualified voters of the district or circuit to which they are to be assigned." That bars the Legislature or Supreme Court from simply appointing a business-court judge as a permanent matter. The Supreme Court can, however, use its supervisory authority to assign already-elected judges (or special judges in narrow temporary circumstances under article VI, § 11) to preside over a business docket.

Currency note

This opinion was issued in 2018. 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.

Background and statutory framework

Tennessee's judicial structure starts with Tenn. Const. art. VI, § 1: the Supreme Court plus circuit, chancery, and other inferior courts that the Legislature creates. The Tennessee Supreme Court has consistently treated that as an exclusive grant: see State ex rel. Ward v. Murrell, 90 S.W.2d 945, 946 (Tenn. 1936); McCulley v. State, 53 S.W. 134, 140-44 (Tenn. 1899); Tenn. Att'y Gen. Op. 07-120 (Aug. 13, 2007). The Legislature's discretion under that clause includes creating new courts, transferring jurisdiction among them, deciding how many courts the system needs, and fixing the limits of their jurisdiction (Duncan v. Rhea County, 287 S.W.2d 26, 30 (Tenn. 1955); Spurgeon v. Worley, 90 S.W.2d 948, 949 (Tenn. 1936)).

The Supreme Court's separate role comes from its position as the "supreme judicial tribunal of the state" with "broad inherent authority over the Tennessee judicial system" (In re Bell, 344 S.W.3d 304, 313 (Tenn. 2011)) and from statutory supervisory powers in Tenn. Code Ann. §§ 16-3-501 through 16-3-504. Those statutes give the Supreme Court "general supervisory control over all the inferior courts of the state" and authority to (a) temporarily assign judges of comparable rank, (b) correct caseload imbalances among judicial districts, and (c) "[t]ake affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state." § 16-3-504 calls this "a broad conference of full, plenary and discretionary power upon the supreme court."

The election mandate sits in Tenn. Const. art. VI, § 4: "the Judges of the Circuit and Chancery Courts, and of the other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned." The Tennessee Supreme Court framed this as preserving "an independent judiciary free of the political caprice and whims of other government branches" (State ex rel. Town of Carthage v. Barrett, 840 S.W.2d 895, 899 (Tenn. 1992)).

The opinion did acknowledge a narrow exception in art. VI, § 11, which allows special judges to be appointed "to hold any Courts the Judge of which shall be unable or fail to attend or sit." The Legislature has used that to authorize special and senior judges, vacancy fill-ins, and similar temporary assignments (In re Valentine, 79 S.W.3d 539 (Tenn. 2002); Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731 (Tenn. 2000)). But that exception is for temporary, fill-in roles, not for staffing a permanent business court with appointed judges.

The opinion noted that the Tennessee Supreme Court already operated a Davidson County Business Court Docket Pilot Project (Order Continuing the Davidson County Business Court Docket Pilot Project, Phase 2, No. ADM2017-00638 (Tenn. Dec. 22, 2017)) under which parties could request transfer of qualifying business cases to a docket presided over by an experienced complex-commercial judge.

Common questions

Could the Tennessee Supreme Court create a business court on its own?

No, according to this opinion. Article VI, § 1 was read as giving the Legislature exclusive authority to create inferior courts. The Supreme Court, despite its broad supervisory powers, cannot create a new court without legislative action.

What is the difference between a "business court" and a "business docket"?

A business court is a freestanding inferior court with its own jurisdiction. Creating one requires legislation. A business docket is a routing mechanism inside an existing court (for example, Davidson County Chancery) that channels qualifying business cases to a particular judge. The Supreme Court can establish a docket through its supervisory authority because doing so does not change the jurisdiction of any court.

If the Legislature creates a business court, can it appoint the judge?

No. Article VI, § 4 requires the judges of inferior courts to be elected by the voters of the district. The opinion specifically said neither the Legislature nor the Supreme Court could appoint a permanent business-court judge.

What about the special- and senior-judge statutes?

Those allow appointment in narrow, temporary circumstances under art. VI, § 11: filling in for an absent or recused judge, serving out a vacancy, or taking on a specific case where the elected judge cannot. They are not a workaround for staffing a new permanent court with appointed judges.

Did the AG say the Supreme Court was already doing something here?

Yes. The opinion noted that the Tennessee Supreme Court had been operating the Davidson County Business Court Docket Pilot Project since at least 2017. Under that program, parties in qualifying business cases could request transfer to the business docket, with cases handled by a judge experienced in complex business and commercial disputes. The opinion treated that as a permissible use of the Supreme Court's inherent and statutory supervisory authority.

Are there limits on the Supreme Court's supervisory power even when establishing a docket?

Yes. The Supreme Court cannot alter the jurisdiction of inferior courts because that authority belongs exclusively to the Legislature under article VI, § 1. A docket assignment can move cases within an existing court's jurisdiction; it cannot expand or contract it.

Citations

Constitutional provisions

• Tenn. Const. art. VI, § 1 (judicial power; Legislature creates inferior courts)
• Tenn. Const. art. VI, § 4 (election of inferior court judges)
• Tenn. Const. art. VI, § 11 (special judges in limited circumstances)

Statutes

• Tenn. Code Ann. § 16-3-501 (general supervisory authority of Supreme Court)
• Tenn. Code Ann. § 16-3-502 (specific supervisory powers)
• Tenn. Code Ann. § 16-3-504 ("plenary and discretionary power")

Cases

• State ex rel. Ward v. Murrell, 169 Tenn. 688, 90 S.W.2d 945 (Tenn. 1936)
• McCulley v. State, 102 Tenn. 509, 53 S.W. 134 (Tenn. 1899)
• Gouge v. McInturff, 90 S.W.2d 753 (Tenn. 1935)
• Duncan v. Rhea County, 287 S.W.2d 26 (Tenn. 1955)
• White v. Garner, 192 Tenn. 429, 241 S.W.2d 518 (Tenn. 1951)
• Spurgeon v. Worley, 169 Tenn. 697, 90 S.W.2d 948 (Tenn. 1936)
• In re Bell, 344 S.W.3d 304 (Tenn. 2011)
• State ex rel. Town of Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992)
• In re Valentine, 79 S.W.3d 539 (Tenn. 2002)
• Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731 (Tenn. 2000)

Prior AG opinions

• Tenn. Att'y Gen. Op. 87-02 (Jan. 7, 1987)
• Tenn. Att'y Gen. Op. 07-120 (Aug. 13, 2007)
• Tenn. Att'y Gen. Op. 17-08 (Feb. 8, 2017)
• Tenn. Att'y Gen. Op. 18-14 (Mar. 23, 2018)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-33.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 30, 2018

Opinion No. 18-33

Establishment of a Business Court or Business Docket

Question 1

Consistent with the Tennessee Constitution, may the Legislature or Supreme Court create a business court?

Opinion 1

The Tennessee Constitution gives the Legislature the exclusive authority to create inferior courts, including a business court.

Question 2

May the Supreme Court create a business docket in an inferior court?

Opinion 2

Yes, within the limits established by the Tennessee Constitution.

Question 3

If the Legislature creates a business court or the Supreme Court establishes a business docket, must a judge assigned to the business court or to the business docket be elected or may the Legislature or Supreme Court appoint a judge?

Opinion 3

The judges must be elected in accordance with the Tennessee Constitution.

ANALYSIS

1. Pursuant to its exclusive constitutional authority to create inferior courts, the Legislature may create a business court. Because the Tennessee Constitution reserves to the Legislature the exclusive authority to create inferior courts, the Tennessee Supreme Court is not authorized to create a business court.

The judicial power of Tennessee is constitutionally vested in the Supreme Court and "in such Circuit, Chancery and other inferior Courts as the Legislature shall from time to time, ordain and establish." Tenn. Const. art. VI, § 1. The effect of this constitutional provision is to confer exclusive authority on the Legislature to create and establish inferior courts in Tennessee. See State ex rel. Ward v. Murrell, 169 Tenn. 688, 90 S.W.2d 945, 946 (1936); McCulley v. State, 102 Tenn. 509, 53 S.W. 134, 140-44 (1899); Tenn. Att'y Gen. Op. 07-120 (Aug. 13, 2007) (article VI, section 1 "confers exclusive authority on the Legislature to create and establish inferior courts in Tennessee"). It follows that only the Legislature, and not the Supreme Court, is authorized to create inferior courts, including a business court.

The constitutional authority vested in the Legislature to establish inferior courts includes the authority to determine the jurisdiction of those courts and to allocate the judicial power among them. See Ward, 90 S.W.2d at 946; see also Gouge v. McInturff, 90 S.W.2d 753, 753 (Tenn. 1935) (article VI, section 1, confers on the Legislature the power to prescribe and define the jurisdiction of those inferior courts that it establishes). Under the Constitution, "[t]he Legislature has discretion to create new courts, to transfer to one court jurisdiction formerly exercised by another court, to determine how many and what kind of courts are required for the administration of justice, and to fix the limit of their jurisdiction." Tenn. Att'y Gen. Op. 17-08 (Feb. 8, 2017).

It is thus "well-settled that the Legislature has the power not only to create inferior Courts under the constitutional provision but to diminish or to enlarge or to transfer their jurisdiction in the interest of efficiency and economy." Duncan v. Rhea County, 287 S.W.2d 26, 30 (Tenn. 1955). Accordingly, "[t]he power of the Legislature to establish special courts, under Section 1, Article 6 of the Constitution, is well established." White v. Garner, 192 Tenn. 429, 241 S.W.2d 518, 520 (1951).

Pursuant to this well-established authority, the Legislature may create a special business court and direct that cases otherwise within the jurisdiction of existing inferior courts be transferred to this new court. See Spurgeon v. Worley, 169 Tenn. 697, 90 S.W.2d 948, 949 (1936) ("The broad power conferred by article 6, § 1, upon the Legislature to establish courts necessarily conveys power to define their jurisdiction and to transfer jurisdiction from existing courts . . . to the newly created court. Without such power[,] a special court could serve no purpose.").

2. Although the Tennessee Supreme Court may not create a business court, it does, as the "supreme judicial tribunal of the state," have "broad inherent authority over the Tennessee judicial system," In re Bell, 344 S.W.3d 304, 313 (Tenn. 2011) (internal quotation marks omitted), pursuant to which it may create a business docket or direct a particular category of claims, such as commercial claims, to a specific court that has been established by the Legislature.

The inherent authority of the Supreme Court includes "general supervisory control over all the inferior courts of the state." Tenn. Code Ann. § 16-3-501; see also Tenn. Att'y Gen. Op. 87-02 (Jan. 7, 1987) (recognizing that the "supervisory authority over the Tennessee judicial system is a part of the inherent power of the Tennessee Supreme Court").

That supervisory authority is necessary "to ensure the harmonious, efficient[,] and uniform operation of the judicial system of the state." Tenn. Code Ann. § 16-3-501. Within the scope of the Supreme Court's supervisory powers is the authority (1) to "[d]esignate and assign temporarily any judge or chancellor to hold or sit as a member of any court, of comparable dignity or equal or higher level, for any good and sufficient reason"; (2) to "[t]ake affirmative and appropriate action to correct and alleviate any imbalance in caseloads among the various judicial districts of the state"; and (3) to "[t]ake affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state." Tenn. Code Ann. § 16-3-502(3)(A), (D), (E). These and other supervisory powers granted to the Supreme Court "constitute a broad conference of full, plenary and discretionary power upon the [S]upreme [C]ourt." Id. § 16-3-504; see also Tenn. Att'y Gen. Op. 18-14 (Mar. 23, 2018).

Accordingly, pursuant to its broad inherent constitutional and statutory authority over the state judicial system, the Supreme Court may implement a business docket in, or direct particular commercial claims to, a specific court that has been established by the Legislature, to, for example, "correct or alleviate any condition or situation adversely affecting the administration of justice within the state," Tenn. Code Ann. § 16-3-502(3)(E), or for any other reason permitted by the Constitution and applicable statutes. There are, however, some statutory and constitutional limitations on the exercise of the Court's inherent authority. For example, the Supreme Court could not alter the jurisdiction of inferior courts because that authority rests exclusively with the Legislature under article VI, section 1.

3. If the Legislature creates a business court or the Supreme Court establishes a business docket, a judge of the business court or a judge assigned to the business docket must be elected in accordance with the requirements and procedures of the Tennessee Constitution and applicable law.

The Tennessee Constitution mandates that "the Judges of the Circuit and Chancery Courts, and of the other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned." Tenn. Const. art. VI, § 4. This provision "preserves 'an independent judiciary free of the political caprice and whims of other government branches.'" Tenn. Att'y Gen. Op. 18-14 (Mar. 23, 2018) (quoting State ex rel. Town of Carthage v. Barrett, 840 S.W.2d 895, 899 (Tenn. 1992)). Thus, a judge of a business court created by the Legislature and a judge designated by the Supreme Court to preside over a business docket must be elected. Neither the Legislature nor the Supreme Court may appoint a judge to a business court. Pursuant to its supervisory authority, the Supreme Court may assign elected judges or special judges to preside over a business docket or particular cases that are part of the business docket in the limited circumstances permitted by the Constitution and applicable statutes.

[1] The Tennessee Supreme Court has, in fact, exercised this authority in establishing and continuing its "Business Court Docket Pilot Project," which "provide[s] expedited resolution of business matters by a judge who is experienced in handling complex business and commercial disputes." Order Continuing the Davidson County Business Court Docket Pilot Project, Phase 2, at 1, No. ADM2017-00638 (Tenn. Dec. 22, 2017). Under this program, any party in a business case that meets the criteria established by the Supreme Court may request the case be transferred to the business docket. See id. at 3-4.

[2] The law does provide for appointment of unelected judges, on a temporary basis and in a limited capacity, in certain circumstances when it is impossible or impracticable for an elected judge to preside over a particular case or set of cases. The Legislature has authority under article VI, section 11 of the Tennessee Constitution to "make provisions that special Judges may be appointed, to hold any Courts the Judge of which shall be unable or fail to attend or sit; or to hear any cause in which the Judge may be incompetent." See In re Valentine, 79 S.W.3d 539, 545 (Tenn. 2002). The Legislature has exercised that authority to "enact[] several statutes relating to the appointment of special/substitute judges," Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 736 (Tenn. 2000), including statutes that allow the Governor or Supreme Court to appoint a judge to serve out the remaining term of a judicial vacancy or to serve in other temporary and limited capacities, e.g. as a special or senior judge. See Tenn. Att'y Gen. Op. 18-14 (Mar. 23, 2018) (collecting these statutes).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Brian Kelsey
State Senator
716 Cordell Hull Bldg.
Nashville, Tennessee 37243