Contested Elections as Secret Weapon: Legislative Control Over Judicial Decisionmaking

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The current interbranch tensions in the federal government have been just as potent, if not more so, at the state level. Legislative challenges to state judiciaries are accumulating nationwide. In one state, Tennessee, the newly-elected Republican majority in the General Assembly has flexed its legislative muscle in several ways, ranging from the outright hostile – threatening the imposition of contested elections for the state’s appellate judges and a takeover of the body that governs judicial conduct – to the more sublime. A less-publicized, but no less significant, step that the legislature took in 2011 was to overrule a recent decision of the Tennessee Supreme Court, Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), which had explicitly rejected the federal Celotex standard for burden-shifting on a motion for summary judgment. Hannan had simply reaffirmed a decade-old line of cases, but was characterized by the dissenting justice and, subsequently, by the defense bar, as a radical change in Tennessee law. Thus, it became a prime target of the business-oriented General Assembly. This article explores the role of summary judgment in the current showdown between the legislative and judicial branches in Tennessee. After briefly tracing the history of the Celotex standard in Tennessee, including the background underlying the Hannan decision, the article considers the constitutionality of the legislation in light of the explicit separation of powers provision in the Tennessee Constitution and cases interpreting it. It also examines whether the new law exceeds the General Assembly’s statutory rule-making powers. The article concludes by revisiting the larger context of the interbranch battle, most notably the legislature’s ongoing threat to institute contested judicial elections in lieu of the current “Tennessee Plan,” which calls for appointment by the Governor and “yes-no” retention elections rather than contested elections. Because the courts will eventually have to decide the constitutionality of the statute overruling Hannan, the threat of contested elections could be characterized as a weapon supporting the General Assembly’s move to usurp the judiciary’s traditional power to promulgate its own rules of practice and procedure.