If the Tennessee legislature doesn't pass enabling rules under Amendment 2, can the governor still appoint state appellate judges?

Subject

Opinion No. 15-28, Appointment of Appellate Court Judges Pursuant to "Amendment 2" to Article VI, Section 3, of the Tennessee Constitution, March 27, 2015

Plain-English summary

In November 2014, Tennessee voters ratified Amendment 2, which rewrote how the state picks Supreme Court and intermediate-appellate judges. The new rule: the governor appoints, the legislature confirms (or fails to reject within 60 days, in which case the appointee is confirmed by default), and the appointee later faces a statewide retention election. The amendment also said the legislature is "authorized to prescribe such provisions as may be necessary to carry out" sections 2 and 3.

A state representative asked: if the legislature does not enact any such provisions, can the governor still make appointments? The AG said yes. Amendment 2 makes the governor's appointment power directly operational and discretionary. Legislative enabling rules are not required and the legislature cannot, by failing to act, strip the governor of his constitutional duty. The same is true at the confirmation stage: if the legislature does nothing within the 60-day window, the appointee is confirmed by default, which is exactly what the amendment specifies.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Amendment 2 replaced the first two sentences of Tenn. Const. art. VI, § 3, with three new sentences:

1. Appellate judges are appointed by the governor (full term or vacancy), confirmed by the legislature, and thereafter face retention elections.
2. If the legislature fails to reject an appointee within 60 calendar days, confirmation occurs by default.
3. The legislature is "authorized" to prescribe provisions to carry out sections 2 and 3.

The AG read the first sentence as imposing a mandatory duty on the governor ("shall be appointed . . . by . . . the governor") and vesting that office with sole "discretion" over both the choice of appointee and the appointment process. Governor Haslam exercised that discretion through Executive Order No. 41 (November 6, 2014), creating a Governor's Council for Judicial Appointments to provide him slates of nominees with timing deadlines built in.

The second sentence handles confirmation. The legislature can affirmatively reject, but if it does nothing within 60 days, default confirmation kicks in. The AG read that as expressly anticipating legislative inaction.

The third sentence is permissive, not mandatory. "Authorized" empowers the legislature; "prescribe" is to make rules. "Necessary" calls for a legislative judgment. The legislature can adopt rules, but is not required to.

Tennessee constitutional interpretation principles support that reading. Words get their plain meaning (State ex rel. Sonnenburg v. Gaia, 717 S.W.2d 883, 885 (Tenn. 1986)). Provisions must be harmonized so no word is meaningless (Shelby County v. Hale, 292 S.W.2d 745, 748-49 (Tenn. 1956)). Reading sentence three to give the legislature a unilateral veto by inaction would render the first sentence's mandatory appointment duty meaningless.

Common questions

What is Amendment 2?
A 2014 amendment to the Tennessee Constitution that codified the "Tennessee Plan" of judicial selection: gubernatorial appointment, legislative confirmation, and statewide retention elections for appellate judges.

Could the legislature delay or block an appointment by refusing to confirm?
The legislature can affirmatively reject within 60 calendar days. But if it does nothing, the appointee is confirmed by default. So inaction does not block the appointment; only affirmative rejection does.

Does the AG's reading apply to trial-court judges too?
No. Amendment 2 covers Supreme Court and intermediate appellate courts specifically. Trial-court vacancies are governed by other constitutional and statutory provisions.

What about Executive Order No. 41 and the Governor's Council?
Executive Order No. 41 set up an advisory nominating council. The AG noted the governor's discretion permitted him to use whatever process he chose, and the order included fallback rules (if the council fails to act within deadlines, the governor may appoint any qualified person).

Citations

Tenn. Const. art. VI, § 3 (as amended by Amendment 2, 2014); State ex rel. Sonnenburg v. Gaia, 717 S.W.2d 883 (Tenn. 1986); Shelby County v. Hale, 292 S.W.2d 745 (Tenn. 1956); Conger v. Roy, 267 S.W. 122 (Tenn. 1924).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-28.pdf

Original opinion text

Appointment of Appellate Court Judges Pursuant to "Amendment 2" to Article VI, Section 3, of the Tennessee Constitution

Question

Article VI, Section 3, of the Tennessee Constitution, as recently amended, authorizes the Tennessee Legislature "to prescribe such provisions as may be necessary to carry out" Section 3. If the General Assembly does not prescribe any such provisions, would the Governor nevertheless be able to appoint appellate court judges pursuant to Article VI, Section 3?

Opinion

Yes.

ANALYSIS

In the November 4, 2014, general election the voters of Tennessee ratified "Amendment 2," which changes Article VI, Section 3, of the Tennessee Constitution by deleting the first two sentences of Section 3 and replacing them with the following three sentences:¹

[1] Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state.

[2] Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session.

[3] The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

As amended, Article VI, Section 3, provides for three separate processes related to the selection of appellate judges. The first is the appointment process for filling appellate judicial vacancies. Control of that process is vested in the Governor. The second is the confirmation process for appellate judges appointed by the Governor. Management of that process lies with the Legislature. The third is the election process for incumbent appellate judges. Amendment 2 gives the qualified voters of Tennessee the right to elect those judges in a retention election.

Whether Amendment 2 requires the Legislature to enact or adopt any particular provision as a prerequisite to the Governor's appointment of appellate judges is a question of interpretation of the language of Amendment 2. Interpretation of the language of Tennessee Constitution is governed by certain long-standing principles. Words in the Constitution are given their plain, ordinary, and inherent meaning. Courts construe constitutional provisions as written without reading any ambiguities into them. When a provision clearly means one thing, courts will not give it another meaning. Courts must presume that the language in the Constitution has been used with sufficient precision to convey the intent of those who framed and adopted the language. State ex rel. Sonnenburg v. Gaia, 717 S.W.2d 883, 885 (Tenn. 1986). Since constitutional provisions must be taken literally unless the language is ambiguous, there is no need to resort to other means or rules of interpretation when the words are free from doubt and express plainly and clearly the sense of the framers. Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745, 748 (1956). Constitutional provisions will not be read to conflict with one another; rather, they must be harmonized and construed to make every word operative and effective and to render no word idle or meaningless. Id. at 748-49.

The Amendment 2 language pertinent to the question that has been asked is not ambiguous. The first sentence of Amendment 2 provides that Tennessee's appellate judges "shall be appointed . . . by . . . the governor," either for a full term or to fill a vacancy.² Appointment, moreover, is "at the discretion of the governor," which perforce includes discretion in both the appointment process and the choice of appointee.³ Once appointed, an appellate judge who wishes to serve an additional term must stand for election in a state-wide retention election.

According to the plain, ordinary, inherent meaning of this first sentence of Amendment 2, the Governor is required to ("shall") make judicial appointments and is alone vested with discretion as to the process for making those appointments. Ipso facto, the Legislature may not prescribe any provision that would prohibit the Governor from fulfilling his constitutionally mandated duty to make an appointment and the Legislature can have no say in an appointment process that lies within the discretion of the Governor.

The Governor's constitutionally mandated responsibility to appoint appellate judges and his constitutionally vested control over the appointment process are stand-alone and self-executing. No "enabling" legislation is required, or permitted. The Legislature may neither prohibit the Governor from making judicial appointments, nor may it control how or when the Governor makes judicial appointments. The corollary is that what the Legislature may not do by affirmative action, it may not do by inaction. Therefore, the Legislature's failure to enact provisions for "carrying out" Section 3 cannot and does not have any negative impact on the Governor's appointment power and prerogative. Whether the Legislature does or does not enact such provisions is simply irrelevant to the appointment process.

To be sure, the Governor's judicial appointees are subject to confirmation by the Legislature. As specified in the first sentence of Amendment 2, an appellate judge must be appointed by the Governor and must be confirmed in that appointment by the Legislature. Separate and distinct from the appointment process, the legislative confirmation process is addressed in the second sentence of Amendment 2. According to the plain, ordinary, inherent meaning of that sentence, the Legislature may reject an appointee only by taking affirmative action to do so within the specified time limit. Confirmation, on the other hand, may be by affirmative action or by inaction. The Legislature may act affirmatively to confirm, but if it does not act within the specified time limits either to confirm or reject, the appointee is confirmed by default. Thus, to the extent that legislation is necessary to carry out this part of Section 3, the result of any failure by the Legislature to prescribe the necessary measures will be confirmation by default.

The third sentence of Amendment 2 "authorize[s]" the Legislature to "prescribe" any provisions that may be "necessary" to carry out Section 3.⁴ The common, ordinary meaning of "authorized" is to "empower" or "to give power or permission to" someone, or to "give legal or official approval for something." "Prescribe" is commonly understood to mean "to make an official rule," or "to specify as a guide, direction, or rule of action." Thus, according to the plain, ordinary, inherent meaning of the third sentence of Amendment 2, the Legislature is permitted, but is not required, to specify rules, if any, necessary to carry out Amendment 2.

When Amendment 2 empowers the Legislature to make any necessary provisions, it has inherently designated the Legislature as the arbiter, in the first instance, of what is necessary. Determining what is "necessary" involves making a judgment about what is "required," "absolutely needed," or "compulsory." Therefore, if the Legislature opts not to prescribe provisions for carrying out Section 3, then the Legislature must have determined that no such provisions are needed for it to conduct its confirmation process.

One cannot logically read the third sentence of Amendment 2 to mean that, if the Legislature does not prescribe any provisions for carrying out Section 3, then the Governor is precluded from fulfilling his constitutional obligation to appoint judges to vacant appellate positions. Such a reading would give the Legislature the power, by mere inaction, to strip the Governor of his constitutionally mandated duty to make judicial appointments, and would be tantamount to reading that duty out of the Constitution. Such a reading would also allow the Legislature to divest the Governor of his constitutionally vested discretion to make the appointments by whatever process he deems appropriate. Such a reading is, therefore, insupportable, because it would be contrary to the plain import of the first sentence of Amendment 2, and, indeed, would render meaningless the entire first sentence of Amendment 2.

The reading that properly harmonizes the provisions of Section 3 and makes every word effective is that the Legislature may enact rules to determine and govern the legislative process, consistent with the framework contained in Amendment 2, related to legislative confirmation of the Governor's appointees. If the Legislature does not enact any such rules, then, presumably it has not deemed any such rules to be necessary. But that would in no way affect or impede the ability of the Governor to make judicial appointments.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Jon Lundberg
State Representative
20 Legislative Plaza
Nashville, Tennessee 37243

¹ The last two sentences of Article VI, Section 3, were unchanged by Amendment 2. Before the ratification of Amendment 2, Article VI, Section 3, provided as follows: The Judges of the Supreme Court shall be elected by the qualified voters of the State. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Every Judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the State for five years. His term of service shall be eight years.

² This clause is to be read in conjunction with Article VII, Section 5, of the Tennessee Constitution, which provides that "[n]o appointment or election to fill a vacancy shall be made for a period extending beyond the unexpired term." In the context of Article VII, Section 5, there is a "vacancy" in any judicial office without an incumbent, so that an appointment may be made to fill an office for the first time or to fill a preexisting office in which there is no incumbent. Conger v. Roy, 267 S.W. 122, 125 (Tenn. 1924).

³ After ratification of Amendment 2, Governor Haslam exercised that discretion to establish the appointment process he presently intends to follow. Executive Order No. 41 (issued on Nov. 6, 2014) creates the Governor's Council for Judicial Appointments and sets out an appointment process which, in essence, calls for the Council to furnish the Governor with a slate of nominees for any given vacancy or impending vacancy on an appellate court and then calls for the Governor to fill that appellate court vacancy by appointing one of those nominees to the vacant position. The Executive Order includes deadlines for various steps in the appointment process. If the Council does not furnish the required panel or panels of nominees within the specified time limits, the Governor may fill the vacancy by appointing any qualified person to the position.

⁴ Amendment 2 also authorizes the Legislature to prescribe provisions for carrying out Article VI, Section 2, but that is not relevant here, since Article VI, Section 2, deals with the composition and jurisdiction of the Tennessee Supreme Court.