Today, Governor Haslam announced a proposal to amend the state constitution affirmatively–and redundantly–cementing the Tennessee Plan in our state’s governing document. The Tennessee Plan–as you know–is how lawyers that know the governor get appointed to the appellate courts and Supreme Court of Tennessee. Never mind the Tennessee Plan has already been interpreted repeatedly as constitutional by the TN Supreme Court–it was a Special Supreme Court in 1996–in the cases of State ex rel. Higgins v. Dunn, 496 S.W.2d 480, 487 (Tenn. 1973) and State ex rel. Hooker v. Thompson, No. 01S01-9605-CH-00106, 1996 WL 570090 (Tenn. Oct. 2, 1996), which have also been affirmed numerous times by other appellate courts.
In 2010, Republicans celebrated taking control of the General Assembly for the first time since Reconstruction. Oddly enough, the justices making those decisions were appointed when Democrats controlled the legislature. Yes, I know, the Governor is making the appointments and every 8 years we Tennesseans select a governor from the other party. However, the members of the Judicial Nominating Commission are appointed by the respective speakers of the House and Senate.
Tenn. Code Ann. Section 17-4-102 – The Judicial Nominating Commission reviews applicants for judicial vacancies on the state trial and appellate courts. From the applicants, the commission makes recommendations to the governor, who makes an appointment to fill the vacancy. Eight of the seventeen members of the commission are appointed by the Speaker of the Senate. Eight of the members are appointed by the Speaker of the House. One member is jointly appointed by the Speakers of the Senate and House.
The commission then selects 3 names from the pool of applicants to recommend them to the governor for appointment to the bench. This reminds me, isn’t there a vacancy in circuit court in Nashville? Alas, it is important to note how the speakers get their list of candidates for commission members. One wouldn’t think a potential candidate (or at least a majority thereof) would get appointed without an express or implied standard he or she must follow in selecting potential candidates prior to submission to the governor for ultimate selection.
In fact, one of the commission members (the Secretary) is also a board member of the Family Action Council of Tennessee, which is ironic considering his practice is devoted to–among others yet listed second–divorce. He is also a former member of the legislature and I am certain he is a fine attorney. The current body still consists of appointments from previous House speakers.
All that being said, it is highly, highly improbable the TN Supreme Court will reverse course in our lifetime. So, why is the governor wasting our time and that of the legislature’s, the 95 county election commissions, ink, paper, etc.? Others have suggested on Twitter this is GOTV efforts. I am not sure of the answer, but let’s consider what else will be on the ballot in 2014.
The 2014 ballot will include a constitutional amendment to forever ban the imposition of a state income tax. Again, the Tennessee Supreme Court has already ruled (3 times) the same unconstitutional pursuant to Article II, Sec. 28. Even the House proponent remarked such on the House floor. Notice a pattern here?
It will also include an amendment to overturn Planned Parenthood of Middle Tenn. v. Sundquist. The language of the amendment is as follows:
Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.
I am sure everyone can see the writing on the wall for the legislature’s 1st session if this passes. In its simplest terms, the TN Supreme Court held that the Tennessee Constitution provides an independent right to privacy and ultimately, more rights to privacy than the U.S. Constitution. In order words, the state and its political subdivisions will have to meet the strict scrutiny standard–a high burden.
In total, 3 constitutional amendments–there’s time for more–2 that affirm repeated rulings of the state’s high court and 1 that overturns their ruling–the law. It’s the economy, stupid. Not that economy. This is the political economy.
Indeed our constitution (ceiling), as interpreted by its highest court ruled that Tennesseans have more privacy guarantees than under the U.S. Constitution (floor). In light of the passage of National Defense Authorization Act, privacy is of grave concern. We should be pleased to know we are afforded greater privacy protections under our state laws, at least for now.
Is the Tennessee Plan amendment a ruse? I haven’t reached a conclusion yet. The income tax amendment idea was born years ago and was driven by public outcry. The privacy amendment is being driven by the group who seemingly has a lock on this General Assembly. Look for more of the same this session like last session on HB 600. The state is determined to wrest control of local decisions away from urban locales. It began with contracting. It goes further to wages and health care. Now, anti-bullying policies of local school districts (HB 1153).
[i]t also clarifies state law to make it clear that districts cannot create their own definitions of bullying….
We are ill equipped at the local school district level to define the term “bullying.” I am a great skeptic of our local school policies, but I am convinced the folks we elected are plenty capable of defining such a term. Even if they weren’t, we elected them.
We can stand by and take the beating or we can act. Hundreds of small protests at the Capitol will capture the media’s attention, but it won’t change the outcome. An opening has been seized by the closed-minded and they are driving the bus.
Rural legislators are making our local, urban decisions for us. It shouldn’t surprise anyone that by and large urban areas have different policies than rural areas if for no other reason there’s more of us and we live closer together. This is the new reality in our state’s political economy. Before long, we can consider it our new normal, and for the foreseeable future. Even if I agreed with their points of view, I don’t want to be subject to the political decision-making of officials whose election I can’t impact. And neither should anyone else.
Perhaps GOTV is the answer. Jobs, anyone?
