Bredesen v. Tennessee Jud. Selection Com'n

Decision Date21 February 2007
Citation214 S.W.3d 419
PartiesPhil BREDESEN, Governor of the State of Tennessee v. TENNESSEE JUDICIAL SELECTION COMMISSION, et al.
CourtTennessee Supreme Court

Charles W. Bone and Charles Robert Bone, Nashville, Tennessee; Lyle Reid, Brownsville, Tennessee; and Irma Merrill Stratton and Timothy W. Smith, Memphis, Tennessee, for the appellant, J. Houston Gordon.

John Spaulding Hicks, Nashville, Tennessee, for the appellant, George T. Lewis, III.

Robert E. Cooper, Jr., Attorney General and Reporter, and Janet M. Kleinfelter, Senior Counsel, for the appellee, Governor Phil Bredesen.

Ben H. Cantrell, Nashville, Tennessee, for the appellee, Tennessee Judicial Selection Commission.

OPINION

WILLIAM M. BARKER, C.J., delivered the opinion of the court, in which JANICE M. HOLDER and CORNELIA A. CLARK, JJ., and E. RILEY ANDERSON, Sp. J., joined.1

This appeal concerns the process for appointing a new justice to become the fifth member of the Tennessee Supreme Court. The issues in this case involve the proper interpretation of sections 17-4-101 to 17-4-118 of the Tennessee Code Annotated ("the Tennessee Plan") and matters of constitutional law. For the reasons stated below, we hold that: (1) the first list of nominees certified to the Governor under the Tennessee Plan was not rendered invalid upon one nominee's subsequent withdrawal from consideration for appointment; (2) an individual listed on a panel of nominees certified to the Governor by the Tennessee Judicial Selection Commission ("the Commission") which has been rejected by the Governor may not be included on the second panel of nominees certified to the Governor under the Tennessee Plan; (3) the Governor's rejection of Lewis and Gordon did not violate the Tennessee Human Rights Act ("THRA") because a nominee or applicant to fill a judicial vacancy is not an "employee" for purposes of the THRA; (4) the equal protection challenge to the Governor's rejection of the first panel is a non-justiciable political question; (5) the equal protection challenge to the Governor's rejection of the first panel is otherwise without merit; (6) the Governor's letter rejecting the first list of nominees did not encroach on the powers assigned to the Commission by the Tennessee Plan; and (7) the trial court erred in its determination of the appropriate remedy.

The facts of this case are undisputed. In early 2006, Justices E. Riley Anderson and Adolpho A. Birch, Jr., each announced that they would be retiring from the Tennessee Supreme Court at the end of their terms of office, August 31, 2006. Soon after those announcements, the Tennessee Judicial Selection Commission began the statutory process for filling the vacancies which would occur upon Justices Anderson's and Birch's retirements. One of the expected vacancies was subsequently filled by the Governor's appointment of Justice Gary R. Wade, then Presiding Judge of the Court of Criminal Appeals.

Following the appointment of Justice Wade, the Judicial Selection Commission initiated the process for filling the second expected vacancy on the Court. On July 18, 2006, the Commission certified by letter to the Governor the names of three nominees for the vacancy: Richard H. Dinkins, J. Houston Gordon, and George T. "Buck" Lewis.

Approximately one week later, on July 24, 2006, Richard H. Dinkins submitted a letter to the Governor withdrawing his name from consideration for appointment to the Supreme Court. That same day, Governor Bredesen wrote a letter to the Chairman of the Judicial Selection Commission; the body of the Governor's letter states in its entirety:

I am writing to return to the Judicial Selection Commission the panel of nominees certified to me last week for the vacancy on the Tennessee Supreme Court. I have received a letter from Chancellor Richard Dinkins withdrawing his name as one of the three nominees, and therefore I am requesting pursuant to Tenn.Code Ann. § 17-4-112(a) that the Commission submit a new panel of nominees.

I appreciate the outstanding work that Chancellor Dinkins has done as a trial court judge, and I respect his decision to put his children's needs ahead of his career. This State has been privileged over the past thirteen years to have an excellent Supreme Court that reflects the diversity of Tennessee. As you know, I have always sought to appoint judges who meet the highest professional and personal standards. Among such highly qualified persons, diversity is a significant factor that I believe should be considered. With Chancellor Dinkins' withdrawal, I no longer have the opportunity to consider that factor.

I therefore request that the Commission send me a new panel of nominees that includes qualified minority candidates. I further request that the Commission select the new panel as expeditiously as possible, so that I can make this appointment before September 1st, when the court vacancy occurs.

On August 9, 2006, the Chairman of the Judicial Selection Commission wrote a letter to Governor Bredesen, noting that the Commission had met the preceding day. The Chairman's letter stated that "[t]he Commission voted to request the governor to clarify, in writing, if he intended to reject the entire panel in his July 24, 2006 letter and if so, his reasons for rejecting the panel." The Governor responded in a letter (also dated August 9) to the Chairman of the Commission, stating:

In my previous letter, I requested that the Judicial Selection Commission submit to me a new panel of nominees for the vacancy on the Tennessee Supreme Court pursuant to Tenn.Code Ann. § 17-4-112(a). By invoking Section 17-4-112(a), I rejected the first panel of nominees. Please accept this letter as a reaffirmation that I rejected the panel for the reason stated in my previous letter, which is attached and incorporated herein.

On August 22, 2006, the Judicial Selection Commission met and passed a resolution stating, in summary, that the remaining eight original applicants (following Richard H. Dinkins' withdrawal of his name from consideration) would be considered for the second panel to be submitted to the Governor; the Commission also reopened the application process to allow others to file applications, setting a new deadline of August 29, 2006, for the filing of applications. The resolution also stated that "the Commission is committed to submitting a diverse body of qualified candidates to the Governor for consideration, and therefore deems a per se exclusion of an applicant solely on the basis of his or her race to be unconstitutional."

Seventeen individuals (including the remaining eight original applicants) timely qualified for consideration by the Commission. On September 5, 2006, the Commission met to select the second panel of nominees for the vacancy on the Court. In a letter dated September 7, 2006, the Commission certified to the Governor the names of D'Army Bailey, J. Houston Gordon, and William C. Koch, Jr., as the second panel of nominees.

On September 18, 2006, the Governor (represented by the Attorney General & Reporter) filed a "complaint for declaratory judgment" in the Davidson County Chancery Court, seeking a ruling as to the validity of the second panel. The complaint alleged that the Governor's rejection of the first panel constituted a rejection of each of the nominees on that panel and that "in submitting a second panel to the Governor, the Tennessee Plan requires that the Commission submit a panel that contains three new nominees and does not include one or more of the rejected nominees from the first panel." The Governor went on to allege in the complaint that the second panel submitted to him by the Commission is "not a validly constituted panel pursuant to Tenn.Code Ann. § 17-4-112(a) as it contains the name of a rejected nominee from the first panel." The complaint concluded by asking the trial court to declare that "Plaintiff [the Governor] has no legal duty to make any appointment to fill the current vacancy in the Supreme Court pursuant to Tenn.Code Ann. § 17-4-112(a), unless and until the Commission submits a panel that is validly constituted in accordance with Tenn.Code Ann. § 17-4-112(a)[.]"

The Tennessee Judicial Selection Commission was named as the defendant in the complaint filed by the Governor. The trial court subsequently permitted J. Houston Gordon and George T. "Buck" Lewis to intervene in the proceedings. The court scheduled a hearing on December 13, 2006, for oral arguments on the parties' respective motions for summary judgment.

On December 14, 2006, the trial court issued its memorandum opinion and order, granting the Governor's motion for summary judgment, effectively ruling in favor of the Governor on all issues. The court ordered the Commission to remove J. Houston Gordon's name from the list of nominees on the second panel and to select a third nominee from the remaining previous applicants for the second vacancy and to certify his or her name to the Governor.

Gordon and Lewis both filed notices of appeal. Gordon also filed in the trial court a motion for a stay pending appeal. Gordon and Lewis simultaneously filed motions in the Supreme Court, requesting that this Court assume jurisdiction of the appeal, pursuant to Tennessee Code Annotated section 16-3-201(d) (Supp.2006) (the "reach-down statute"). In his reach-down motion, Gordon also moved this Court to stay the trial court's judgment pending the appeal. The Governor filed a response to the reach-down motions, agreeing with the request that this Court assume jurisdiction of this appeal.

On January 2, 2007, the trial court denied the motion for a stay pending appeal. On January 3, this Court granted the two reach-down motions and thereby assumed jurisdiction of the appeal; we also adopted an expedited briefing schedule and set the case for oral argument on February 2 2007. Due to a public announcement by the Chairman of the Judicial Selection...

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