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Wednesday, May 16, 2012

Constitutional can't

As many people know, Senator Brian Kelsey brought a resolution (SJR710) to change the constitution and allow for the appointment of judges (similar to the federal system).

Personally I have long supported an election system but that is an argument for another day.

Anyway, the Kelsey constitutional amendment can't pass. Is it because of my personal preference? No. It wouldn't work even if I did support it.

For the policy wonks out there here is the details on the why not.

The issue begins with the caption: which is limited to amending Article VI Section 3. It needed to amend Article VI Sections 3 & 4 and Article VII Section 5.

The SJR710 resolution, as amended, says:

AMEND Senate Joint Resolution No. 710* by deleting the first resolving clause in its entirety and by substituting instead the following:
REPRESENTATIVES CONCURRING, that a majority of all the members of each house
concurring, as shown by the yeas and nays entered on their journals, that it is proposed:
That Article VI, Section 3, of the Constitution of Tennessee be amended by
deleting the first and second sentences and by substituting instead the following:
Judges of the Supreme Court or any intermediate appellate court
shall be appointed for a full term or to fill a vacancy by and at the
discretion of the governor; shall be confirmed by the Legislature; and
thereafter, shall be elected in a retention election by the qualified voters of
the state. Confirmation by default occurs if the Legislature fails to reject
an appointee within sixty calendar days of either the date of appointment,
if made during the annual legislative session, or the convening date of the
next annual legislative session, if made out of session. The Legislature is
authorized to prescribe such provisions as may be necessary to carry out
sections two and three of this article.

CURRENT: Article VI Section 4 says:

Section 4. The Judges of the Circuit and Chancery Courts, and of other Inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.

These two provision regarding "intermediate appellate courts" and "other inferior courts" are contrary to each other regarding a district or a statewide assignment.
In the Kelsey Resolution, Court of Appeals Judges can all theoretically be elected from one county.

Then in the last sentence of Article VII Section 5

No special election shall be held to fill a vacancy in the office of judge or district attorney, but at the time herein fixed for the biennial election of civil officers, and such vacancy shall be filled at the next biennial election recurring more than thirty days after the vacancy occurs.

The words "judge or" would need to be struck in order for it to comply with the resolution.

The Kelsey SJR 0710, amending the Constitution for appellate judicial selection, is placing in direct conflict, two different sections of the Constitution by failing to caption and amend the provision broadly enough to accomplish his goal at the Court of Appeals' level. Statewide vs District.

This is a disaster and, as the only Republican Senator having voted against it, I figured I should be the one to bring the bad news. Now, because of timing and the rules for changing the constitution, the constitution can not be changed for 6 more years at best and even then, it would not have any real practical effect until 2022 when the next term for judges comes up.

Of course we can still follow the constitution and allow for the election of judges. That can be changed by fixing the definition of election to what it has always meant. Not by changing the constitution.


  1. Where was the legal staff?

  2. SJR 710 for the first time includes intermediate appellate judges in Art. VI, Sec. 3. Under the current constitution, they are covered by Art. VI, Sec. 4. The two sections are not in conflict with one another because the language that currently includes intermediate appellate judges in Sec. 4 simply references "other inferior Courts." "Other inferior Courts" means all courts other than those explicitly listed in Sec. 3. By explicitly listing intermediate appellate judges in Sec. 3, there is no reason to amend the current language of Sec. 4.

    SJR 710 changes the selection process for full terms and vacancies for judges of the Supreme Court and intermediate appellate courts from election to appointment. There is no conflict between this new language in Art. VI, Sec. 3 and the vacancy provision in Art. VII, Sec. 5 because the latter section already references "appointment or election to fill a vacancy." Senator Campfield's selective quotation of Art. VII, Sec. 5 omitted the key sentence that obviates the need to amend Art. VII, Sec. 5. It works in tandem with the appointment process in SJR 710.


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