Separation of Powers

The Good, The Bad, and The Ugly

Tennessee Tennessee Constitution Constitution

Article II, Section 1Article II, Section 1

The powers of the The powers of the Government shall be Government shall be

divided into three distinct divided into three distinct departments: the departments: the

Legislative, Executive, Legislative, Executive, and Judicial. and Judicial.

Tennessee Tennessee Constitution Constitution

Article II, Section 2Article II, Section 2

No person or persons No person or persons belonging to one of these belonging to one of these

departments shall exercise departments shall exercise any of the powers properly any of the powers properly belonging to either of the belonging to either of the

others, except in the cases others, except in the cases herein directed or permittedherein directed or permitted..

Tennessee Tennessee ConstitutionConstitution

Article II, Section 3Article II, Section 3General AssemblyGeneral Assembly

The Legislative authority of The Legislative authority of this State shall be vested in this State shall be vested in

a General Assemblya General Assembly

Tennessee Tennessee Constitution Constitution

Article VI, Section Article VI, Section 11

Supreme CourtSupreme Court

The judicial power of this State The judicial power of this State shall be vested in one shall be vested in one

Supreme Court and in such Supreme Court and in such Circuit, Chancery and other Circuit, Chancery and other

inferior Courts as the inferior Courts as the Legislature shall from time to Legislature shall from time to

time, ordain and establishtime, ordain and establish

Tennessee Tennessee Constitution Constitution

Article VI, Section Article VI, Section 2 2

Supreme CourtSupreme Court

……The jurisdiction of this Court The jurisdiction of this Court shall be appellate only, under shall be appellate only, under

such restrictions and such restrictions and regulations as may from time to regulations as may from time to time be prescribed by law; but it time be prescribed by law; but it

may possess such other may possess such other jurisdiction as is now conferred jurisdiction as is now conferred by law on the present Supreme by law on the present Supreme

Court.Court.

““The people have entrusted The people have entrusted to this department the to this department the

supreme judicial power, and supreme judicial power, and placed it and its jurisdiction, placed it and its jurisdiction,

beyond the legislative beyond the legislative power. Neither can one power. Neither can one

interfere with or control the interfere with or control the other, in the proper other, in the proper

discharge of its functions.discharge of its functions.””

Miller v. ConleeMiller v. Conlee, 37 Tenn. 432 (Tenn. , 37 Tenn. 432 (Tenn. 1858).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 Modern Rule MakingMaking

In 1965, the Legislature In 1965, the Legislature passedpassed

the statute that codified the the statute that codified the

modern rule making modern rule making procedureprocedure

“(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

by16-3-601.”

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 Do We Have a ProblemProblem??

The InnThe Inn’’s Perspective on s Perspective on HannanHannan, , GossettGossett and the and the

Summary Judgment Summary Judgment StatutesStatutes

Summary Judgment Summary Judgment CasesCases

•Do you believe the Do you believe the HannanHannan holding holding was a good policy decision?was a good policy decision?• 47% Yes47% Yes• 53% No53% No

•Do you believe the Do you believe the GossettGossett holding holding was a good policy decision?was a good policy decision?• 42% Yes42% Yes• 53% No53% No

General Assembly’s General Assembly’s ““ReversalsReversals””

• Do you believe the Do you believe the HannanHannan statute is statute is a good policy decision?a good policy decision?• 56% Yes56% Yes• 42% No42% No• 2% Declined to answer2% Declined to answer

• Do you believe the Do you believe the GossettGossett statute is statute is a good policy decision?a good policy decision?• 55% Yes55% Yes• 42% No42% No• 3% Declined to answer3% Declined to answer

Constitutionality of Constitutionality of StatutesStatutes

• Do you believe the statutes Do you believe the statutes concerning summary judgment concerning summary judgment are constitutional?are constitutional?• 55% Yes55% Yes• 40% No40% No• 5% Declined to answer 5% Declined to answer

Authority to Promulgate Authority to Promulgate RulesRules

• Where should rulemaking authority lie?Where should rulemaking authority lie?• 73% Supreme Court73% Supreme Court• 20% General Assembly20% General Assembly• 7% Declined to answer7% Declined to answer

• Comments by members:Comments by members:• Depends on type of rulemakingDepends on type of rulemaking• Proposed by Supreme Court, adopted Proposed by Supreme Court, adopted

unless General Assembly acts to unless General Assembly acts to disapprovedisapprove

• Not sure, each has exercised such Not sure, each has exercised such authority in Tennessee at various timesauthority in Tennessee at various times

DemographicsDemographics

• 71% of respondents were 71% of respondents were litigatorslitigators

• Of litigators:Of litigators:• 35% primarily represent 35% primarily represent

PlaintiffsPlaintiffs• 65% primarily represent 65% primarily represent

DefendantsDefendants

Your Background and Your Your Background and Your ResponsesResponses

• If you are not a litigator, you tend to:If you are not a litigator, you tend to:• Believe Believe HannanHannan is good policy, but is good policy, but

GossettGossett is not is not• Believe the Believe the HannanHannan statute is bad statute is bad

policy, but the policy, but the GossettGossett statute is statute is good policygood policy

• Believe the statutes are Believe the statutes are constitutionalconstitutional

• Believe rulemaking authority should Believe rulemaking authority should lie with Supreme Courtlie with Supreme Court

• If you are a litigator who primarily If you are a litigator who primarily represents Plaintiffs, you tend to:represents Plaintiffs, you tend to:• Believe Believe HannanHannan and and GossettGossett are good are good

policypolicy• Believe the responsive statutes are Believe the responsive statutes are

bad policybad policy• Believe the statutes are Believe the statutes are

unconstitutionalunconstitutional• Believe rulemaking authority lies Believe rulemaking authority lies

with Supreme Courtwith Supreme Court

Your Background and Your Your Background and Your ResponsesResponses

• If you are a litigator who primarily If you are a litigator who primarily represents Defendants, you tend to:represents Defendants, you tend to:• Believe Believe HannanHannan and and GossettGossett are are

bad policybad policy• Believe the responsive statutes are Believe the responsive statutes are

good policygood policy• Believe the responsive statutes are Believe the responsive statutes are

constitutionalconstitutional• Believe rulemaking authority should Believe rulemaking authority should

lie with Supreme Courtlie with Supreme Court

Your Background and Your Your Background and Your ResponsesResponses

Separation of Powers Separation of Powers PanelPanel

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Joe HaynesJoe Haynes

Attorney and Former State Senator (Davidson Co)

94th to 107th General Assemblies