Originally published in The Tennessean, September 23, 2011
Review should not stray into separation of powers
The creation of the Tennessee Court of the Judiciary by legislation in 1979 was a product of cooperation, or comity, between separate and equal branches of government: legislative and judicial.
Now, the General Assembly's creation is being questioned by its own creator. I hope these inquiries do not elevate above political theater and generate a separation-of-powers battle between the two branches. The system has worked pretty well for three decades.
Tennessee's Supreme Court, a direct creature of our state constitution, is the supreme judicial department of the state. The Supreme Court has inherent, absolute power deriving from our common law, not from the General Assembly. The legislature recognizes that the Supreme Court has "general supervisory control over all the inferior courts of the state," by laws it passed that say just that.
The Supreme Court has the plenary role to supervise and adopt ethics rules for judges, and the judiciary decides how they should be disciplined. Judging judges is the Supreme Court's role, and the legislature can pass statutes that help the court do that. Legislators cannot pass laws that conflict with the Supreme Court's supervisory role or frustrate the judiciary's exercise of its powers. When we refer to "separate and equal," or separation of powers, we mean cooperation and not frustration. The legislature cannot cross the line and encroach on the power of the Supreme Court.
The General Assembly has absolute, constitutional power to try impeachments of judges or removal of judges under Article VI. Constitutionally, the legislature can impeach or remove any reasonable way it chooses. The Supreme Court cannot interfere with, frustrate, or cross the line that is relegated to the legislative branch.
So, what is all the fuss about the Court of the Judiciary (COJ)? With a budget of less than $300,000 for personnel, administrative and travel costs for the members, the COJ processed 359 complaints last year. Most were dismissed by disciplinary counsel with a right of appeal to an investigative panel. There are more than 650 judges in Tennessee, and they hear millions of cases annually — from death penalty trials to traffic misdemeanors. Look at the complaint-to-case ratio. The numbers speak for themselves.
Does the Court of the Judiciary need more counsel to screen cases? Yes. Should it change its name? Yes, it is not a court, but an ethics board. Does the COJ need more non-lawyers? Maybe, if that makes complainants feel better about fairness. Does the COJ need members of the legislature appointed by the Supreme Court, to "represent the public?" That might not be a bad idea' they could learn how COJ works. I suggest two legislators, with one being on an investigative panel screening appeals. Should the Supreme Court be the appointing authority? Yes.
Whatever the General Assembly decides, I hope the separation line is not crossed. Our government is based on checks and balances, not power to change.
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