When the legislature creates new judgeships and points to a procedure that depends on a body the legislature has already abolished, how does the Trial Court Vacancy Commission actually fill the seats?

Plain-English summary

In 2018 the General Assembly created three new trial-court judgeships in the Sixteenth, Nineteenth, and Twenty-first Judicial Districts (SB 5/HB 10). The bill said the "type of court," "type of judge," and "part of court" for each new position would be designated under Tenn. Code Ann. § 16-2-512. The problem: § 16-2-512 routes the decision through the Judicial Council, and the General Assembly had terminated the Council in 2010, even though Title 16, Chapter 21 (the Council statute) was never formally repealed.

Chair William C. Koch, Jr. of the Trial Court Vacancy Commission asked AG Slatery how the Commission should proceed.

The opinion picks the option that best honors the legislature's intent. Because § 16-2-512 is still on the books and SB 5/HB 10 specifically invoked it, the Commission should follow § 16-2-512 as closely as possible. The Commission steps into the role of the now-defunct Judicial Council. The flow is:

1. The presiding judge of each district (Sixteenth, Nineteenth, Twenty-first) recommends the type of judge, type of court, and division or part of court to the Commission. Tenn. Code Ann. § 16-2-512(a).

2. The Commission, in the Council's place, approves or rejects each recommendation. Tenn. Code Ann. § 16-2-512(b).

3. If the Commission approves, the Governor sends a vacancy notice to the Commission. Tenn. Code Ann. § 17-4-308(h).

4. The AOC publishes the vacancy and invites applications under Tenn. Code Ann. § 17-4-308(d), (g). The AOC also notifies the election commission in each affected county of the type of judge and the part of court that will be subject to election. Tenn. Code Ann. § 16-2-512(c).

5. The Commission holds the required public hearing and forwards its recommendations to the Governor under Tenn. Code Ann. § 17-4-308(f), (g).

The opinion considered, but rejected, the alternative reading: that the § 16-2-512 reference is inoperative because the Council no longer exists. That reading would render the legislature's express choice meaningless. Tennessee statutory construction prefers the reading that gives effect to legislative intent.

Currency note

This opinion was issued in 2018. 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.

The General Assembly may have since amended Title 16, Chapter 21 or the trial court vacancy process to reflect the Judicial Council's permanent absence. Anyone working on judicial vacancy procedure today should pull the current statutes.

Common questions

Q: Why did the legislation reference a procedure tied to an abolished body?
A: The General Assembly terminated the Judicial Council in 2009 and finished winding it up in 2010, but it never formally repealed Title 16, Chapter 21 governing the Council. SB 5/HB 10 carried forward the cross-reference to § 16-2-512 mechanically. The opinion treats the cross-reference as a clear signal that the legislature wanted that procedure followed, with the Trial Court Vacancy Commission as the natural successor body to make the type-of-court call.

Q: Why is the Commission the right body to step in for the Council?
A: The Commission already screens trial-court vacancy applicants, holds public hearings, and recommends nominees to the Governor under § 17-4-308. It is the standing body in the same statutory neighborhood with the relevant institutional capacity. No other entity in the trial-court selection process is positioned to evaluate the presiding judges' recommendations.

Q: What does "type of judge, type of court, and division or part of court" actually mean?
A: A "type of court" might be circuit, chancery, or criminal. A "type of judge" is the judge appointed to that type of court. A "division or part of court" identifies which seat within the court the judgeship occupies. Each affects ballot wording and election commission preparation, which is why the AOC has to relay the decision down to the county election commissions.

Q: Could the Governor just declare what type each new court should be without going through this process?
A: The opinion treats the § 16-2-512 cross-reference in SB 5/HB 10 as binding on the process. Skipping the presiding-judge recommendation and Commission review would be inconsistent with the legislature's express choice. The opinion does not address what would happen if the General Assembly later amended the law to give the Governor that authority.

Background and statutory framework

Tennessee fills trial-court vacancies through a multi-step process anchored in Tenn. Code Ann. § 17-4-308. The Tennessee Trial Court Vacancy Commission screens applicants, holds at least one public hearing within 60 days of the Governor's vacancy notice, and forwards three nominees to the Governor.

When the General Assembly creates a new judgeship rather than filling an existing vacancy, Tenn. Code Ann. § 16-2-512 layers in an additional step: the presiding judge recommends the type of court and type of judge, and the Judicial Council (or, after this opinion, the Commission in its place) approves or rejects the recommendation. The AOC then handles downstream publication and election-commission notification.

The Judicial Council was originally created in 1943 under Tenn. Code Ann. § 16-21-101. The General Assembly terminated it on June 30, 2009 and finished its wind-up period on June 30, 2010. The compiler's notes to § 16-21-101 reflect that termination, but the underlying statute was not repealed. SB 5/HB 10 (2018 Pub. Acts ch. 974) cross-referenced § 16-2-512 in directing how the three new judgeships should be designated. The AG's opinion harmonizes the cross-reference by substituting the Commission for the abolished Council.

Citations

• Tenn. Code Ann. § 16-2-512(a), (b), (c)
• Tenn. Code Ann. § 16-21-101 (and compiler's notes)
• Tenn. Code Ann. § 17-4-308(d), (f), (g), (h)
• S.B. 5 / H.B. 10, 110th Tenn. Gen. Assem. (2018 Tenn. Pub. Acts ch. 974)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-21.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 24, 2018
Opinion No. 18-21

Trial Court Selection Process

Question 1
What procedure should the Tennessee Trial Court Vacancy Commission follow to select nominees to fill the three new judgeships created by S.B. 5/H.B. 10, 110th Gen. Assem. (2018 Tenn. Pub. Acts, ch. 974)?

Opinion 1
Because the General Assembly has not repealed title 16, chapter 21 of the Tennessee Code, and has specifically referred to it and identified it as providing the appropriate procedure for filling the three new judgeships created by S.B. 5/H.B. 10, 110th Gen. Assem. (2018), the Commission should comply with Tenn. Code Ann. § 16-2-512 to the extent possible, even though the Judicial Council established by title 16, chapter 21, no longer exists. To do so, the Commission should implement the following process to fill the three new judgeships:

• The presiding judges of the Sixteenth, Nineteenth, and Twenty-first Judicial Districts, respectively, will each recommend the type of judge, type of court, and division or part of the court to the Commission. See Tenn. Code Ann. § 16-2-512(a).

• The Commission, in place of the Judicial Council, will review and either approve or reject each of the recommendations of the presiding judges. See Tenn. Code Ann. § 16-2-512(b).

• If the Commission approves the recommendation(s), the Governor will send notice(s) of vacancy to the Commission in accordance with Tenn. Code Ann. § 17-4-308(h).

• Upon receipt of the Governor's notice of each vacancy, the Administrative Office of the Courts will

  • publish notice of the vacancy and invite interested persons to submit applications in accordance with Tenn. Code. Ann. § 17-4-308(d) and (g); and

  • notify the election commission in each of the counties in the affected districts of the type of judge, and type and division or part of court subject to election. Tenn. Code Ann. § 16-2-512(c).

• The Commission will conduct hearings and forward its recommendations to the Governor in accordance with Tenn. Code Ann. § 17-4-308(f) and (g).

ANALYSIS

When a state trial court vacancy occurs, the Tennessee Trial Court Vacancy Commission is required to screen applicants for the vacant position and recommend three nominees to the Governor. Tenn. Code Ann. § 17-4-308 (Supp. 2017). This selection process begins when the Commission receives written notice from the Governor that a trial court vacancy exists. Tenn. Code Ann. § 17-4-308(h). Within 60 days after receiving this notice, the Commission must screen the candidates, hold at least one public hearing, and then forward its recommendations to the Governor.

The Governor's notice of a trial court vacancy customarily contains a full and specific designation of the court where the vacancy has occurred. For example, rather than just stating that there is a trial court vacancy in a particular judicial district, the notice identifies not only the judicial district but also states whether the vacancy exists for a circuit, chancery, or criminal court and, when applicable, the division of the court. When the Commission receives notice from the Governor of a trial court vacancy, the Administrative Office of the Courts ("AOC"), on behalf of the Commission, publishes notice of the vacancy and invites persons interested in being nominated for the position to submit their applications. Tenn. Code Ann. § 17-4-308(d) & (g). The AOC's published notice contains the specific information identifying the vacancy described in the Governor's notice.

During its recently concluded 2018 session, the 110th Tennessee General Assembly enacted S.B. 5/H.B. 10, which creates three new judgeships in the Sixteenth, Nineteenth, and Twenty-first Judicial Districts. The legislation was signed into law by Governor Haslam on May 21, 2018, and is effective as of that date.

Legislation creating a judgeship customarily specifies the type of judgeship being created. But S.B. 5/H.B. 10 states only that "an additional trial court" is being created in each of the three districts. It then provides that the "type of court," "type of judge," and "part of court" shall be designated as provided in Tenn. Code Ann. § 16-2-512 (2009).

Tennessee Code Annotated § 16-2-512 provides that when a new judgeship is created, the presiding judge of the district shall recommend to the Judicial Council the "type" and "part" of court where the new judge will serve. Tenn. Code Ann. § 16-2-512(a). The Judicial Council must then either accept or reject the recommendation of the presiding trial judge. Tenn. Code Ann. § 16-2-512(b). If the recommendation is accepted, the statute requires the AOC to notify the election commission in each county of the affected district of the type of judge and part of court that will be subject to election. Tenn. Code Ann. § 16-2-512(c).

The Judicial Council was originally established in 1943. Tenn. Code Ann. § 16-21-101 (2017). However, the General Assembly "terminated" the Council on June 30, 2009, and its "wind-up period" was completed on June 30, 2010. Tenn. Code Ann. § 16-21-101, compiler's notes. Even though the Judicial Council no longer exists, the General Assembly has not repealed title 16, chapter 21, governing the Council.

Because the Council no longer exists, an essential part of the process for identifying trial court vacancies eventually subject to election no longer exists. But because the legislation establishing the Judicial Commission is still part of the Tennessee Code and is specifically referenced by S.B. 5/H.B. 10 as the process to follow in identifying trial court vacancies, there is a question about how the Commission is to proceed with filing the three new judgeships created by S.B. 5/H.B. 10. One option is to construe the reference in S.B. 5/H.B. 10 to Tenn. Code Ann. § 16-2-512 as inoperative since the Judicial Council has been disbanded. Another option is to give effect to the intent of the General Assembly, as evidenced by its express reference to Tenn. Code Ann. § 16-2-512, to the extent possible by following the process in Tenn. Code Ann. § 16-2-512 to the fullest extent possible.

Since the General Assembly has not repealed title 16, chapter 21 of the Tennessee Code and has specifically referred to it and identified it as providing the appropriate procedure, the better option, the one that would give fullest effect to the intent of the legislature, is for the Commission to comply with Tenn. Code Ann. § 16-2-512 to the extent possible.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
William C. Koch, Jr., Chair,
Tennessee Trial Court Vacancy Commission
C/o Nashville School of Law
4013 Armory Oaks Drive
Nashville TN 37204-4577