Separation of Powers

Separation of Powers The Good, The Bad, and The Ugly

Tennessee Constitution Article II, Section 1 The powers of the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial.

Tennessee Constitution Article II, Section 2 No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.

Tennessee ConstitutionArticle II, Section 3General Assembly The Legislative authority of this State shall be vested in a General Assembly

Tennessee Constitution Article VI, Section 1Supreme Court The judicial power of this State shall be vested in one Supreme Court and in such Circuit, Chancery and other inferior Courts as the Legislature shall from time to time, ordain and establish

Tennessee Constitution Article VI, Section 2 Supreme Court …The jurisdiction of this Court shall be appellate only, under such restrictions and regulations as may from time to time be prescribed by law; but it may possess such other jurisdiction as is now conferred by law on the present Supreme Court.

“The people have entrusted to this department the supreme judicial power, and placed it and its jurisdiction, beyond the legislative power. Neither can one interfere with or control the other, in the proper discharge of its functions.” Miller v. Conlee, 37 Tenn. 432 (Tenn. 1858).

“The supreme court has the power to adopt all rules and orders necessary and proper to make effective its appellate jurisdiction and to enforce its judgments, and it has the power to make and establish a rule, when a case arises to which there is no rule then in use that applies.” Foster v. Burem, 48 Tenn. 783, 1870 Tenn. LEXIS 148 (1870)

“The supreme court has both the inherent power and statutory authority to make and enforce reasonable rules of practice.” Denton v. Woods, 86 Tenn. 37, 5 S.W. 489, 1887 Tenn. LEXIS 21 (1887)

Modern Rule Making In 1965, the Legislature passed the statute that codified the modern rule making procedure

“(Justice) Harbison, the primary drafter of the Tennessee Rules of Civil Procedure (adopted by the court in 1970), chaired the court‘s Advisory Committee on the Rules of Civil Procedure and was instrumental in the promulgation and implementation of the Tennessee Rules of Evidence. Before Harbison’s tenure on the court, Tennessee‘s courts had functioned without any uniform rules of procedure.” Tennessee Encyclopedia of History and Culture, http://tennesseeencyclopedia.net/entry.php?rec=597

“Rules of Civil Procedure along with the Rules of Criminal Procedure and the Rules of Appellate Procedure, are “law” of this state, in full force and effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated by this court and adopted by the general assembly.” Tennessee Dep't of Human Services v. Vaughn, 595 S.W.2d 62, 1980 Tenn. LEXIS 417 (Tenn. 1980).

“The statutory scheme of rule making contemplates that the supreme court will make appropriate use of the advisory commissions authorized by 16-3-601.” State v. Best, 614 S.W.2d 791, 1981 Tenn. LEXIS 437 (Tenn. 1981).

“It is an inherent power of a court to promulgate necessary procedural rules. Such power exists by virtue of the establishment of a court and not by largess of the General Assembly. Of course, courts may not enact laws governing substantive rights as such would be an invasion by the judiciary of the legislative function.” Haynes v. McKenzie Mem. Hosp., 667 S.W.2d 497 (Tenn. Ct. App. 1984); State v. Johnson, 673 S.W.2d 877 (Tenn. Crim. App. 1984).

“Conflicts between provisions of the Tennessee Rules of Civil Procedure and provisions of the Tennessee Code Annotated which cannot be harmoniously construed will be resolved in favor of the Tennessee Rules of Civil Procedure.” Mid-South Pavers, Inc. v. Arnco Constr., Inc., 771 S.W.2d 420, 1989 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1989).

“(W)hen the court finds that (1) a statute can legitimately be construed in various ways, and (2) one of those constructions presents a constitutional conflict, then it is it's duty to adopt a construction which will sustain the statute and avoid that constitutional conflict, if its recitations permit such a construction. In no case, though, is the judiciary empowered to substitute its own policy judgments for those of the General Assembly or to adopt a construction that is clearly contrary to the intent of the General Assembly” State v. Mallard, 40 S.W.3d 473 (Tenn. 2001)

The Legislature’s “power in this regard, however, is not unlimited, and any exercise of that power by the legislature must inevitably yield when it seeks to govern the practice and procedure of the courts. Only the Supreme Court has the inherent power to promulgate rules governing the practice and procedure of the courts of this state.” State v. Mallard, 40 S.W.3d at 480-481

Do We Have a Problem? The Inn’s Perspective on Hannan, Gossett and the Summary Judgment Statutes

Summary Judgment Cases • Do you believe the Hannan holding was a good policy decision? • 47% Yes • 53% No • Do you believe the Gossett holding was a good policy decision? • 42% Yes • 53% No

General Assembly’s “Reversals” • Do you believe the Hannan statute is a good policy decision? • 56% Yes • 42% No • 2% Declined to answer • Do you believe the Gossett statute is a good policy decision? • 55% Yes • 42% No • 3% Declined to answer

Constitutionality of Statutes • Do you believe the statutes concerning summary judgment are constitutional? • 55% Yes • 40% No • 5% Declined to answer

Authority to Promulgate Rules • Where should rulemaking authority lie? • 73% Supreme Court • 20% General Assembly • 7% Declined to answer • Comments by members: • Depends on type of rulemaking • Proposed by Supreme Court, adopted unless General Assembly acts to disapprove • Not sure, each has exercised such authority in Tennessee at various times

Demographics • 71% of respondents were litigators • Of litigators: • 35% primarily represent Plaintiffs • 65% primarily represent Defendants

Your Background and Your Responses • If you are not a litigator, you tend to: • Believe Hannan is good policy, but Gossett is not • Believe the Hannan statute is bad policy, but the Gossett statute is good policy • Believe the statutes are constitutional • Believe rulemaking authority should lie with Supreme Court

Your Background and Your Responses • If you are a litigator who primarily represents Plaintiffs, you tend to: • Believe Hannan and Gossett are good policy • Believe the responsive statutes are bad policy • Believe the statutes are unconstitutional • Believe rulemaking authority lies with Supreme Court

Your Background and Your Responses • If you are a litigator who primarily represents Defendants, you tend to: • Believe Hannan and Gossett are bad policy • Believe the responsive statutes are good policy • Believe the responsive statutes are constitutional • Believe rulemaking authority should lie with Supreme Court

Separation of Powers Panel

Clip

Joe Haynes Attorney and Former State Senator (Davidson Co) 94th to 107th General Assemblies

Separation of Powers