The Supreme Court of Tennessee addressed the process of appointing a new justice to the Tennessee Supreme Court in the case of Governor Phil Bredesen v. Tennessee Judicial Selection Commission. The court ruled on several key issues:
1. The initial list of nominees provided to the Governor under the Tennessee Plan remained valid despite one nominee's withdrawal.
2. A nominee rejected by the Governor cannot be included in a subsequent panel of nominees.
3. The Governor's rejection of nominees Lewis and Gordon did not violate the Tennessee Human Rights Act, as judicial nominees do not qualify as 'employees' under the Act.
4. An equal protection challenge to the Governor’s rejection of the first panel was deemed a non-justiciable political question.
5. Other equal protection claims regarding the rejection of the first panel were found to lack merit.
6. The Governor’s rejection letter did not infringe upon the powers of the Judicial Selection Commission as outlined in the Tennessee Plan.
7. The trial court's remedy decision was determined to be erroneous.
The judgment of the Chancery Court was affirmed with modifications. The opinion was delivered by Chief Justice William M. Barker, with Justices Holder and Clark concurring, and Special Justice E. Riley Anderson appointed to replace recused Justice Wade. The case arose following the planned retirements of Justices Anderson and Birch, leading to the Judicial Selection Commission's nomination process, which was initiated in early 2006.
Governor Bredesen returned a panel of nominees for a vacancy on the Tennessee Supreme Court to the Judicial Selection Commission, citing Chancellor Richard Dinkins' withdrawal from consideration. Under Tenn. Code Ann. 17-4-112(a), he requested a new panel that includes qualified minority candidates, emphasizing the importance of diversity and professionalism in judicial appointments. The Commission sought clarification on whether the Governor intended to reject the entire original panel due to his letter. The Governor confirmed his rejection and reiterated his request for a new panel.
On August 22, 2006, the Commission resolved to consider the remaining eight applicants and reopened the application process with a new deadline of August 29, 2006, affirming its commitment to diversity and stating that excluding candidates based solely on race is unconstitutional. Seventeen individuals qualified for consideration, and by September 5, 2006, the Commission selected D’Army Bailey, J. Houston Gordon, and William C. Koch, Jr. as the second panel. Subsequently, on September 18, 2006, the Governor filed a complaint in the Davidson County Chancery Court to challenge the validity of the second panel, asserting that the rejection of the first panel disqualified its nominees from being included in the new submission.
The complaint filed by the Governor asserts that the second panel provided by the Tennessee Judicial Selection Commission is invalid under Tenn. Code Ann. 17-4-112(a) because it includes a rejected nominee from the first panel. The Governor requests a court declaration stating he has no legal obligation to appoint anyone to the Supreme Court vacancy until a valid panel is submitted. The Commission is named as the defendant. The trial court allowed J. Houston Gordon and George T. Buck Lewis to intervene and scheduled a hearing for December 13, 2006, concerning motions for summary judgment. On December 14, the court granted the Governor’s motion, ruling in his favor, ordering the removal of Gordon’s name from the second panel, and instructing the Commission to submit a new nominee to the Governor. Gordon and Lewis appealed the decision, with Gordon seeking a stay pending appeal. Both filed motions in the Supreme Court to assume jurisdiction over the appeal, which the Court granted on January 3, 2007, adopting an expedited schedule for oral arguments on February 2, 2007. The Supreme Court denied Gordon’s request for a stay due to the Commission's announcement to halt further actions pending the appeal.
The review involves issues of statutory interpretation and constitutional law, which are assessed de novo by the Court without deference to the trial court. The parties involved have raised distinct issues for the Court's consideration, with the analysis organized accordingly. The excerpt also outlines the 1994 enactment of the 'Tennessee Plan,' which aims to assist the Governor in appointing qualified judges, reduce political influence, and enhance the integrity of the judicial system.
The Tennessee Plan, enacted by the General Assembly, established a judicial selection commission as part of the state's judicial branch, initially composed of fifteen members appointed by the Speaker of the State Senate and the Speaker of the State House of Representatives. In 2001, the commission was expanded to seventeen members. This plan outlines the process for filling judicial vacancies, where the commission selects nominees for the Governor's appointment.
Key statutory provisions include Section 17-4-109 (a)(2), which mandates that the commission hold a public meeting in Nashville when a supreme court vacancy arises, but allows for an earlier meeting if a judge fails to declare candidacy or if a vacancy is anticipated. Announcements of Justice Anderson’s and Justice Birch’s retirements prompted the commission to initiate the selection process for their replacements.
The process involves public notifications of the meeting details, allowing public attendance and input on nominees. Licensed attorneys can nominate themselves or support nominations. After a public hearing, the commission may conduct additional meetings as needed, conducting independent investigations into the qualifications of potential nominees. Within sixty days of receiving notice of a vacancy, the commission must select and certify three qualified nominees to the Governor, with provisions for earlier selection if certain conditions arise regarding incumbent judges.
The Judicial Selection Commission is responsible for compiling a list of nominees for supreme court positions in compliance with Article VI, § 2 of the Tennessee Constitution, which mandates that no more than two judges may reside in any one grand division of the state. Tennessee Code Annotated section 17-4-109 outlines the Commission's role in nominating candidates for gubernatorial appointment to fill judicial vacancies. When a vacancy occurs, the Governor, as per section 17-4-112, must appoint one nominee from the Commission's initial panel or request a second panel if the first is rejected. If the Governor rejects the first panel, they must provide written reasons for the rejection. Additionally, appointed judges serve until the next regular August election, where their retention is subject to voter approval.
J. Houston Gordon raises two primary issues:
1. He argues that Richard H. Dinkins’ withdrawal from the first panel invalidated it, implying that the Governor's rejection had no legal standing. Gordon contends that the Commission should have replaced Dinkins with another nominee and resubmitted the revised panel to the Governor.
2. Alternatively, he posits that even if the Governor's rejection was valid, the Commission could include a previously rejected nominee on a subsequent panel.
Gordon's first argument relies on section 17-4-109(e), which specifies that the Commission must select and certify three qualified nominees. He asserts that Dinkins' withdrawal means the Commission did not meet this requirement, rendering the certified list void and necessitating the addition of a new nominee.
Statutory construction is central to this case, focusing on interpreting legislative intent without altering the statute’s meaning. The court emphasizes that intent is derived from the plain language of the statute and its context, as established in prior cases. In this instance, the Tennessee Plan does not address the implications of a nominee's withdrawal once the Judicial Selection Commission certifies three nominees to the Governor. The Commission fulfilled its role on July 18, 2006, by certifying Richard H. Dinkins, J. Houston Gordon, and George T. Buck Lewis as nominees. The court rejects Gordon’s argument that the withdrawal of a nominee disrupts the selection process, asserting that such a view misinterprets the statute and undermines the Tennessee Plan’s intent. Allowing a nominee to unilaterally withdraw and impact the process would introduce undesirable manipulation into judicial appointments. The court notes that Gordon's claim of being 'frustrated' by the withdrawal of Dinkins is unpersuasive, as it actually increases the chances for the remaining nominees. There was no legal barrier preventing the Governor from appointing either Gordon or Lewis after Dinkins' withdrawal; he simply chose to reject the initial list and seek a new one. Additionally, Gordon argues that the Tennessee Plan permits the renomination of candidates from a rejected panel, asserting that a second panel can be valid if it includes at least one different nominee from the first.
Gordon's argument that a second panel of nominees, which includes one previously rejected nominee and two new ones, constitutes a different panel from the first is deemed meritless. Section 17-4-112(a) mandates that after the Commission certifies an initial list of three nominees, the governor must fill the vacancy by appointing one of those nominees or request a new panel of three. The term "other," as used in this context, is interpreted through the intent of the general assembly, which aims to assist the governor in appointing the best-qualified individuals for Tennessee's appellate courts. The governor's rejection of the first panel signifies a rejection of all its nominees, implying he would not consider any of them for appointment. Furthermore, the Commission is not permitted to resubmit any nominees who have already been rejected by the governor, as this is not explicitly allowed by statutory provisions. Consequently, the second panel must consist of entirely new nominees, and the Commission overstepped its authority by renominating Gordon. Additionally, Dinkins' withdrawal did not invalidate the first panel.
The document then shifts focus to issues raised by George T. Lewis, who argues that the governor's rejection of both him and Gordon was based solely on their race. Lewis claims that the governor's letter implies that their Caucasian identity was the only reason for the rejection. He raises two issues: first, that the trial court incorrectly ruled that the Tennessee Human Rights Act (THRA) does not apply to the governor's rejection; and second, that the trial court erred in concluding that their constitutional rights to equal protection did not limit the governor's discretion to reject nominees based on race. The analysis will next address Lewis’s claims under the THRA.
The Tennessee Human Rights Act (THRA), outlined in Title 4, Chapter 21 of the Tennessee Code Annotated, is central to Lewis's argument regarding the Governor's rejection of his and Gordon's nominations based on alleged racial discrimination. Lewis cites section 4-21-101, emphasizing the Act's purpose to uphold federal civil rights policies, prevent discrimination in employment and public accommodations, and ensure personal dignity and public welfare. Section 4-21-401(a) defines discriminatory practices by employers, including refusal to hire or discrimination based on race, creed, color, religion, sex, age, or national origin. Lewis claims the Governor qualifies as an "employer" under the THRA and that he and Gordon are "applicants" covered by the Act. He argues that their rejection based on race violates the THRA. Conversely, the Governor contends that the appointment process for judicial vacancies does not constitute an employment decision under either state or federal law, thereby arguing the THRA's inapplicability to such appointments. Both parties present comprehensive arguments regarding whether judicial nominees qualify as "employees" under the THRA, referencing Title VII of the Civil Rights Act and relevant case law, but the core issue remains whether a nominee for a judicial vacancy is considered an "employee" under the THRA.
The Tennessee Human Rights Act (THRA) defines 'employer' but does not define 'employee.' One of the THRA's primary purposes is to implement federal Civil Rights policies, and Tennessee courts rely on federal decisions for interpreting the THRA. The THRA is interpreted similarly to Title VII of the Federal Civil Rights Act, which defines 'employee' as an individual employed by an employer. This definition is limited, excluding certain officials and their staff. The determination of whether a hired individual is an employee follows common-law agency principles, which consider factors such as the hiring party's control over the work, the skills required, the tools used, the work location, the relationship duration, and the hiring party's business nature. Courts apply these principles to distinguish between employees and independent contractors under federal discrimination statutes.
Key factors relevant to determining whether an individual is an employee include the skill required for the work, the source of tools, work location, duration of the relationship, the hiring party's right to assign additional projects, the hired party's discretion over work hours, payment methods, the role in hiring assistants, whether the work is part of the hiring party's regular business, the hiring party's business status, provision of employee benefits, and tax treatment of the hired party. No single factor is decisive.
In Thompson v. City of Austin, the Texas Court of Appeals ruled that municipal court judges were not employees under the Texas Commission on Human Rights Act (TCHRA) because the city council had no control over how the judges performed their duties. Similarly, it was concluded that state court judges and nominees are not employees for purposes of the TCHRA, as the Governor lacks authority over the judges' performance and cannot demote or terminate them. Judges can only be removed under specific circumstances, such as retention elections or impeachment.
The trial court's ruling that the TCHRA does not apply to this case was affirmed. The document also addresses Lewis's equal protection claims, asserting that the Governor's rejection of the first panel was based on racial classification, which he argues is presumptively invalid and should be reviewed under strict scrutiny.
The rejection of the first panel was deemed unnecessary for achieving a compelling state interest and was not narrowly tailored to such an interest. Lewis references three Supreme Court cases—Grutter v. Bollinger, Gratz v. Bollinger, and Regents of University of California v. Bakke—arguing that they establish that race can only be a consideration in admissions when there is a compelling state interest and narrowly tailored policy in place. He asserts that these criteria were not satisfied in his case, leading to a violation of equal protection principles due to the Governor's rejection of the first panel. The Governor counters that these cases pertain specifically to public educational admissions programs with provisions for minority applicants, which differ from the discretionary authority he exercised under the Tennessee Plan for judicial appointments. He emphasizes that the core issue is the legality of considering diversity in judicial appointments without violating the Equal Protection Clause. The Governor also cites the Supreme Court's approach to discretionary appointment challenges, referencing Mayor of Philadelphia v. Educational Equality League, where a similar system of nominating and appointing board members was upheld.
African-American community members initiated a lawsuit against the Mayor, claiming a violation of the Equal Protection Clause due to discriminatory practices in appointing members of the Educational Nominating Panel, which negatively impacted the representation of African-Americans on the Board of Education. Although the court ruled on different grounds, it acknowledged the complexities involved in equal protection challenges related to discretionary appointments by state and local officials, particularly concerning the tension between judicial oversight and elected officials' ability to fulfill their electoral mandates. The case also raised intricate federal-state relationship issues, particularly in light of the Fourteenth Amendment’s protections for minority rights. The Governor contended that, despite the absence of federalism issues since the case is in state court, the challenges identified in prior cases remain pertinent. He argued that even if the Equal Protection Clause applies to discretionary appointments for judicial vacancies, the trial court correctly determined that there was no prima facie case of racial discrimination against Lewis. Additionally, if equal protection analysis were deemed necessary, the Governor asserted that his actions complied with the strict-scrutiny standard. The court emphasized the importance of the separation of powers doctrine, as enshrined in the Tennessee Constitution, which mandates distinct roles for the legislative, executive, and judicial branches to preserve republican governance.
In Richardson v. Young, the Court of Appeals delineates the powers of government branches: legislative power involves creating laws; executive power pertains to enforcing laws; and judicial power focuses on interpreting laws. The Tennessee Constitution ensures that no branch encroaches upon the powers of another, although the separation of powers doctrine is not absolute, allowing for some interdependence among branches. Courts sometimes face cases where an alleged violation of equal protection intersects with separation of powers, necessitating a determination of whether the issue is justiciable or a political question. The political question doctrine, as outlined in Mayhew v. Wilder, prohibits one government branch from exercising the powers of another unless expressly permitted by the Constitution. Courts can declare legislative acts unconstitutional and, in limited situations, provide remedies for constitutional rights violations. The U.S. Supreme Court cases Baker v. Carr and Powell v. McCormack illustrate rare instances where courts intervened in legislative matters. However, many issues remain non-justiciable when they involve fundamental political questions, lack clear judicial standards, or require nonjudicial policy determinations.
The equal protection claim brought by Lewis is deemed a non-justiciable political question based on principles established in Mayhew and factors from Baker v. Carr. Lewis's claim challenges the Governor's appointment to fill a judicial vacancy, which is constitutionally assigned to a political department, specifically the Legislature as per the Tennessee Constitution. The General Assembly implemented the Tennessee Plan, granting the Governor exclusive authority to make such appointments.
The second factor from Baker v. Carr highlights the absence of clear judicial standards to resolve this claim. The implications of allowing equal protection challenges to judicial appointments could lead to extensive litigation, potentially destabilizing the Tennessee judicial system. The document notes the complexities surrounding remedies for appointments already made, particularly concerning the validity of a judge's status post-appointment or retention election.
Lewis's proposed remedy, requesting the Court to direct the Governor to appoint either him or Gordon, fails to account for the Governor's right to seek a second panel under the Tennessee Plan, highlighting the lack of manageable standards. The conclusion reached is that the equal protection challenge is non-justiciable and does not imply that the Governor's rejection of the nominees violated equal protection principles. Furthermore, there is no prima facie evidence of racial discrimination in Lewis's case, as affirmed by the trial court.
The Tennessee Plan mandated that the Commission certify a panel of applicants deemed the “best qualified” for a Supreme Court vacancy, resulting in a panel of Dinkins, Gordon, and Lewis. Following Dinkins' voluntary withdrawal from consideration, the Governor's July 24 letter indicated his rejection of the panel and requested a new one, citing the lack of a complete panel. Lewis's claim of racial discrimination is based on the Governor's mention of diversity as a consideration; however, the letter emphasized the Governor's commitment to appointing judges of the highest standards. The Governor's decision to seek a new panel was a statutory option exercised in response to the incomplete panel, not indicative of a discriminatory intent. Comparisons to Supreme Court cases involving educational admissions, such as Grutter and Gratz, are deemed inapplicable, as this situation pertains to the Governor's discretionary authority under a legislative statute. Even if the letter were interpreted as a racial classification, it would not constitute a violation of equal protection principles as outlined by the Supreme Court, which requires strict scrutiny for government-imposed racial classifications to ensure they serve compelling interests.
Determining whether racial classifications are "benign" or motivated by illegitimate racial notions is complex, leading courts to apply strict scrutiny to all such classifications. This level of scrutiny aims to expose improper uses of race and ensure that any governmental action is pursuing a sufficiently important goal. While all uses of race are scrutinized, not all are deemed unconstitutional. Any unequal treatment based on race results in an injury that implicates the Equal Protection Clause, but the validity of specific laws is assessed by the court under strict scrutiny.
When race-based actions are necessary to achieve a compelling governmental interest, they may still comply with constitutional standards if they meet the narrow-tailoring requirement. The Supreme Court upheld the University of Michigan Law School's admissions policy, which considered class diversity, recognizing a compelling state interest in promoting educational benefits derived from diversity. The Court emphasized that education underpins good citizenship and that public institutions must be accessible to all individuals, regardless of race or ethnicity. This accessibility is crucial for effective civic participation and leadership in the nation, particularly in higher education, where law schools play a significant role in training future leaders. The representation of diverse racial and ethnic groups among leaders is essential for fostering legitimacy and inclusivity within governance.
Achieving a diverse judiciary, particularly at the state level, is supported by extensive research highlighting its importance for fair justice and the safeguarding of constitutional rights, especially for vulnerable minorities. The lack of racial and ethnic diversity in the judiciary poses significant challenges related to judicial independence and public confidence in the legal system. Governors are encouraged to consider diversity among various factors, such as educational background and professional experience, when making judicial appointments. The debate centers on whether race was a permissible factor in the appointment process, with Lewis acknowledging that the Governor could have considered race when selecting from nominees but arguing that race should not solely dictate the rejection of candidates. The conclusion drawn is that while race may be a factor, it should not be the exclusive reason for rejecting nominees, and the focus should instead be on individual qualifications. Additionally, the analysis of equal protection would require scrutiny of whether the methods used to achieve diversity are appropriately tailored to the stated governmental objectives.
Chancellor Dinkins' withdrawal from consideration for judicial appointment limited the Governor's options under Tennessee Code Annotated section 17-4-112 (a) to rejecting the remaining nominees and requesting a new panel that included qualified minority candidates. The Governor's action was deemed narrowly tailored to achieve diversity in judicial appointments. The court held that: (1) the Tennessee Human Rights Act (THRA) does not apply to this case, (2) Lewis’s equal protection challenge to the Governor's actions is a non-justiciable political question, and (3) Lewis's equal protection arguments lack merit.
The Judicial Selection Commission supported Lewis's argument regarding the THRA's applicability, but the court affirmed the trial court's ruling that the THRA does not apply. The Commission contended that the Governor's request for a new panel including minority candidates overstepped the Commission's authority under the Tennessee Plan. The trial court characterized the Governor's letter as a "request," not an executive directive, and the court agreed with this assessment, concluding that it did not encroach upon the Commission's powers.
Additionally, the Commission argued the trial court erred in remedy determination, but the court upheld the order requiring the Commission to certify a second panel of nominees excluding Gordon and Lewis. The court specified that the Commission should not solicit new applicants or hold further public hearings and should utilize the existing applicant pool to select a third nominee to complete the panel already featuring Judge D’Army Bailey and Judge William Koch.
The Commission contends that the trial court's remedy is excessively restrictive, hampering its ability to fulfill statutory duties. They request the Court to reverse the Chancellor’s Order that limits the selection of the third nominee to the current pool of applicants and to grant the Commission discretion in selecting that nominee. While acknowledging the trial judge's concern about the judicial vacancy's impact, the Commission argues that the court's ruling undermines its authority under the Tennessee Plan, which allows the Commission significant discretion in its procedures.
Tennessee Code Annotated § 17-4-109(e) mandates that the Commission selects and certifies three qualified nominees for judicial vacancies. The Commission asserts that the inclusion of an ineligible nominee on a prior panel rendered that panel void ab initio, necessitating a complete reinstitution of the selection process for all nominees. Furthermore, the Commission argues it was wrongfully limited from accepting additional applications for the second panel. To meet the statutory requirement of selecting the three most qualified candidates, the Commission must evaluate all applicants together. Selecting from a differing group of applicants would contradict the statute's intent. At the time of the oral argument, the court had been without a fifth justice for over five months. However, the conclusion regarding the withdrawal of a nominee does not affect the panel's validity.
An ineligible nominee's inclusion on a certified list to the Governor results in the panel being void ab initio, while the withdrawal of a nominee from a valid panel does not invalidate the panel. Therefore, the Commission must re-initiate the selection process for a second panel of three nominees to be certified to the Governor to fill a judicial vacancy, modifying the trial court's judgment to overrule its previous remedy. The Commission is encouraged to act quickly but retains discretion on how to select and certify the nominees. It may consider previously submitted applications, accept new ones, or hold additional hearings. Upon completion, the Commission must certify three nominees to the Governor. The judgment of the trial court is affirmed with modifications, and costs are assigned to the appellants, J. Houston Gordon and George T. Lewis, who are ineligible for nomination on the new second panel due to their prior erroneous inclusion.
