Sunday column: On Supreme submission to the legislature

Back in 2011, right after Republicans had taken solid control of the General Assembly, a bill was enacted to overrule a state Supreme Court procedural standard and, in doing so, the Tennessee constitution’s “separation of powers” doctrine arguably was violated.

The only Republican to join several Democrats in voting no was the late Sen. Mike Faulk of Church Hill, who went on to serve as a judge after leaving the Legislature.

Last week, a majority of the state Supreme Court — maybe with a bow to today’s political winds with last year’s hotly-contested re-election campaigns in mind? — said that going along with the legislative majority’s wishes was just fine with them.

But there was a ringing dissent from former Justice Gary Wade, writing before his resignation from the bench took effect in September, that quoted Alexander Hamilton writing in the Federalist Papers on the dangers from the “natural feebleness of the judiciary” that is “in continual jeopardy of being overpowered” by the executive branch.

The executive has a “sword” in its overall powers and the legislative branch has great strength in controlling spending, or “the purse.” The judiciary is thus inherently the underdog in a balancing of powers and must be vigilant in defending its independence, Hamilton said. Wade said the Tennessee judiciary was not.

“In consequence (of last week’s decision), we are unable to address the issue of whether the General Assembly has created or amended a rule of procedure in such a way that strikes at the very heart of this court’s exercise of judicial power,” wrote Wade. (As you may recall, Wade was denounced as a “liberal Democrat” back in the combative 2014 campaign — a charge he disputed as best judges can when they’re not supposed to be political.)

Naturally, other judges disagreed. The case involved complicated legal issues beyond the separation-of-powers question. Four of the five justices wrote opinions, a rather unusual thing.

Basically, the central issue was a line of Supreme Court decisions spelling out when a lawsuit can be dismissed by “summary judgment” without going to trial. The preamble of the 2011 law, sponsored by Republicans, says the Supreme Court’s standard “results in fewer cases” being summarily dismissed, “increasing the litigation costs of litigants in Tennessee state courts.”

It goes on to declare “the purpose of this legislation is to overrule the summary judgment standard” developed by the Supreme Court, which, it is noted, conflicts with the standard developed by federal courts.

There are reasonable arguments on both sides as to what the standard should be and no point in getting into them in this limited space. (It’s a big deal in lawyer circles, and the case is known as Michelle Rye vs. Women’s Center of Memphis if you want to look it up.) But the appearance of politics in judicial decision-making is fairly intriguing here and may have ramifications in decisions to come.

Republicans, as a general proposition, seem to worry about businesses and others who get sued being harassed by costly and frivolous lawsuits that cut into profits, the obvious inspiration for the 2011 law. Democrats are perhaps more prone to worry about those who have suffered grievous injury being denied a chance to present their case to a jury of their peers.

Also in 2011, the Legislature, with a lot more fanfare, enacted a tort reform law that puts a $750,000 cap on “non-economic” damages that a jury can award in a lawsuit. The state constitution declares that the right to trial by jury “shall be inviolate,” and some critics (mostly, but not all, Democrats) contend that the right to trial by jury is violated by a legislative-imposed limit. The Supreme Court also recently ruled in a Chattanooga case that it is “premature” for a decision on the issue, but it seems a pretty safe bet that, when they get around to it, the majority will take the pro-business side and declare that the Legislature’s action is just fine by them.

The Supremes also have implemented by court order, on a pilot project basis, a special “business court” with the goal that, when one business is fighting with another over money matters, they can get faster decisions in resolving disputes than by waiting in line with non-business folk. No chance of the Legislature overruling that decision.

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