Chapter 1
General Provisions

Part 1
Qualifications and Selection

17-1-101. Age.

A judge of the supreme court shall be thirty-five (35) years of age; of other courts, thirty (30) years of age.

Code 1858, § 3910 (deriv. Const. 1834, art. 6, §§ 3, 4); Shan., § 5703; Code 1932, § 9889; T.C.A. (orig. ed.), § 17-101.

Cross-References. Age requirements for judges, Tenn. Const., art. VI, §§ 3, 4.

Expense accounts, §§ 8-26-101, 8-26-102.

Impeachment, title 8, ch. 46, parts 1, 2.

Retired judges, assignment to relieve congested dockets, § 8-36-806.

Salaries, §§ 8-23-103, 8-23-104.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 566.

Tennessee Criminal Practice and Procedure (Raybin), § 24.10.

Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 4.

Law Reviews.

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L. Rev. 53  (2015).

Original Meaning and the Precedent Fallback, 68 Vand. L. Rev. 105 (2015).

Rookie Year on the Federal Bench (Hon. Ronald Lee Gilman), 36 No. 5 Tenn. B.J. 22 (2000).

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

Comparative Legislation. Judges:

Ala.  Code § 12-2-1 et seq.; § 12-3-1 et seq.

Ark.  Code § 16-13-901 et seq.; § 16-13-309 et seq.

Ga.  Const. art. VI, § 7.

Ky. Const. § 117 et seq.

Miss.  Code Ann. § 9-1-9 et seq.

Mo. Rev. Stat. § 476.280 et seq.

N.C. Gen. Stat. § 7A-1 et seq.

Va. Code § 17-2 et seq; § 17-119.1:2 et seq.

Collateral References. 46 Am. Jur. 2d Judges § 7.

48 C.J.S. Judges § 17.

17-1-102. Residence.

Each judge and chancellor of a circuit, criminal or chancery court is required to reside in the judicial district or division for which the judge and chancellor is elected, and a removal from the judicial district or division creates a vacancy in the office.

Code 1858, § 3914 (deriv. Acts 1809 (Sept.), ch. 49, § 7; 1835-1836, ch. 5, § 2); Shan., § 5707; Code 1932, § 9893; modified; T.C.A. (orig. ed.), § 17-102.

Cross-References. Residency requirements for state judges, Tenn Const., art. VI, § 4.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 614.

Tennessee Criminal Practice and Procedure (Raybin), § 24.10.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Attorney General Opinions. Factors used to determine residency status, OAG 95-019 (3/27/95).

17-1-103. Election.

  1. The judges of the supreme court, the court of appeals, and the court of criminal appeals shall be elected by the qualified voters of the state in a statewide retention election conducted in accordance with chapter 4, part 1 of this title, and any appointments to fill a vacancy or a full eight-year term shall be made in accordance with chapter 4, part 1 of this title.
  2. The chancellors, circuit court judges, criminal court judges, and judges of any other state trial court of record shall be elected by the qualified voters of their respective judicial districts, as provided in the general election law set forth in title 2, and any appointments due to a vacancy in any of these offices shall be made in accordance with chapter 4, part 3 of this title.

Code 1858, §§ 307, 308 (deriv. Const. 1834, art. 6, §§ 3, 4); Shan., § 374; mod. Code 1932, § 631; impl. am. Acts 1967, ch. 226, § 3; T.C.A. (orig. ed.), § 17-103; Acts 2016, ch. 528, § 6.

Compiler's Notes. The provision for election of court of appeals judges in this section may be affected by chapter 4 of this title concerning the selection of appellate court judges.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Amendments. The 2016 amendment rewrote the section which read: “The judges of the supreme court, court of appeals and court of criminal appeals are elected by the qualified voters of the state at large; the chancellors, circuit judges and judges of special courts, by the qualified voters of the respective judicial districts and special judicial districts.”

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

Cross-References. Appellate court nominating commission, title 17, ch. 4.

Election of judges, Tenn. Const., art. VI, §§ 3, 4.

Election of judges of court of criminal appeals, § 16-5-103.

Election of judges of the supreme court, §§ 2-3-202, 16-3-101.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 614.

Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 5.

Law Reviews.

Rookie Year on the Federal Bench (Hon. Ronald Lee Gilman), 36 No. 5 Tenn. B.J. 22 (2000).

The Judicial System in Tennessee and Potentialities for Reorganization — Judges in Tennessee (Elvin E. Overton), 82 Tenn. L. Rev. 514.

Cited: State ex rel. Smiley v. Glenn, 54 Tenn. 472, 1872 Tenn. LEXIS 75 (1872); Cousin v. Sundquist, 145 F.3d 818, 1998 FED App. 171P, 1998 U.S. App. LEXIS 10796 (6th Cir. Tenn. 1998), cert. denied, 525 U.S. 1138, 119 S. Ct. 1026, 143 L. Ed. 2d 37, 1999 U.S. LEXIS 1020 (U.S. Feb. 22, 1999); Green v. Jones, — S.W.3d —, 2012 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 10, 2012).

NOTES TO DECISIONS

1. Constitutionality.

Election of judges to the Tennessee Court of Appeals and the Court of Criminal Appeals of Tennessee on a statewide basis is consistent with the requirements of the Tennessee Constitution, because the Court of Appeals and the Court of Criminal Appeals are both single, unified courts, the judges of those courts are not assigned to any district or circuit or grand division, and the judges of those courts serve the entire state. Hooker v. Haslam, 437 S.W.3d 409, 2014 Tenn. LEXIS 195 (Tenn. Mar. 17, 2014), rehearing denied, 437 S.W.3d 409, 2014 Tenn. LEXIS 934 (Tenn. Apr. 23, 2014).

Collateral References. 46 Am. Jur. 2d Judges § 8.

48 C.J.S. Judges §§ 12, 13.

Judges 3.

17-1-104. Oath of office.

Before entering upon the duties of office, every judge and chancellor in this state is required to take an oath or affirmation to support the constitutions of the United States and that of this state, and to administer justice without respect of persons, and impartially to discharge all the duties incumbent on a judge or chancellor, to the best of the judge's or chancellor's skill and ability. The oath shall be administered in accordance with title 8 or any other applicable law.

Code 1858, §§ 309, 310, 3911; Acts 1870, ch. 24, § 2; Shan., §§ 378, 379, 5704; mod. Code 1932, §§ 635, 636, 9890; modified; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 17-104; Acts 2010, ch. 620, § 1; 2015, ch. 38, § 1.

Compiler's Notes For the Preamble to the act concerning legislative intent, please refer to Acts 2015, ch. 38.

Amendments. The 2010 amendment substituted “that of this state” for “of this state” in the first sentence; and substituted “such judge, a retired judge, a retired chancellor or an active or retired judge of the court of general sessions” for “such judge or judge of the court of general sessions” at the end of the last sentence.

The 2015 amendment substituted “The oath shall be administered in accordance with title 8 or any other applicable law” for “The oath may be taken by a supreme court judge before the governor, or another supreme court judge; and by an inferior court judge, before another such judge, a retired judge, a retired chancellor or an active or retired judge of the court of general sessions.”

Effective Dates. Acts 2010, ch. 620, § 2. July 1, 2010.

Acts 2015, ch. 38, § 5. July 1, 2015.

Cross-References. Administration and filing of oath §§ 8-18-1078-18-114.

Oath of special judge, § 17-2-120.

Law Reviews.

Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997).

NOTES TO DECISIONS

1. Special Judge — Oath.

The provision for taking the oath is merely directory, and a special judge may take the oath of office under the general law, or act without taking the oath at all, so far as the validity of his orders and decrees are concerned. Sanders v. Metcalf, 1 Cooper's Tenn. Ch. 419 (1873).

2. Election Contests — Beginning Date of Salary.

Upon the termination of election contest proceedings, the successful party is entitled to the salary from the beginning of the term for which he was elected, though not sworn in until after the contest. State ex rel. Barham v. Graham, 161 Tenn. 557, 30 S.W.2d 274, 1929 Tenn. LEXIS 66 (1930).

Collateral References. 46 Am. Jur. 2d Judges § 9.

48 C.J.S. Judges § 19.

Disqualification of judge by state, in criminal case, for bias or prejudice. 68 A.L.R.3d 509.

Membership in fraternal or social club or order affected by a case as ground for disqualification of judge. 75 A.L.R.3d 1021.

Judges 5.

17-1-105. Practice of law prohibited.

No judge or chancellor shall practice law, or perform any of the functions of attorney or counsel, in any of the courts of this state, except in cases in which the judge or chancellor may have been employed as counsel previous to the judge's or chancellor's election. A newly elected or appointed judge or chancellor can practice law only in an effort to wind up the judge or chancellor's practice, ceasing to practice as soon as reasonably possible and in no event longer than one hundred eighty (180) days after assuming office.

Code 1858, § 3912 (deriv. Acts 1851-1852, ch. 331, § 1); Shan., § 5705; Code 1932, § 9891; T.C.A. (orig. ed.), § 17-105; Acts 2012, ch. 789, § 3.

Amendments. The 2012 amendment added the last sentence.

Effective Dates. Acts 2012, ch. 789, § 7. April 23, 2012.

Cross-References. County judges authorized to practice, § 16-16-106.

Practice of law prohibited, § 23-3-101.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 8.

Law Reviews.

Ethical Obligations of Judges (Joe G. Riley), 23 Mem. St. U.L. Rev. 507 (1993).

Attorney General Opinions. General authority of judges of general sessions to administer oaths is not limited by T.C.A. §§ 8-18-107, 8-18-109(b) or 17-1-105, OAG 03-043 (4/15/03).

NOTES TO DECISIONS

1. Purpose and Policy.

The practice of law by a chancellor or circuit judge is contrary to public policy. Reynolds v. Chumbley, 175 Tenn. 492, 135 S.W.2d 939, 1939 Tenn. LEXIS 66 (1940).

2. Election Contest — Rights of Judge Elect.

Statutory provision refers to an acting judge, and not to a judge elect who has been kept out of office by an election contest; and practice of law pending such contest does not defeat successful contestant's right to salary from the beginning of the term for which elected. State ex rel. Barham v. Graham, 161 Tenn. 557, 30 S.W.2d 274, 1929 Tenn. LEXIS 66 (1930).

3. Construction with Other Law.

Although T.C.A. § 17-1-105 does not have a 180-day limitation on the practice of law after election as judge, Tenn. Sup. Ct. R. 10 is more restrictive and takes precedence; the statute has to yield to the inherent authority of the state supreme court to regulate the conduct of judges. State v. Lipford, 67 S.W.3d 79, 2001 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. 2001).

Collateral References. 46 Am. Jur. 2d Judges § 34.

48 C.J.S. Judges § 9.

Officers 30.

17-1-106. Judges to be lawyers — Exceptions.

  1. In addition to the qualifications provided for judges by Tenn. Const. art. VI, §§ 3 and 4, judges of the supreme court, court of appeals, chancery courts, circuit courts, criminal courts, and courts exercising the jurisdiction imposed in one (1) or more of the chancery courts, circuit courts or criminal courts, shall be learned in the law, which must be evidenced by the judge being authorized to practice law in the courts of this state.
    1. This section shall not apply to courts of general sessions in counties of this state having a population according to the federal census of 1960 or any subsequent federal census as follows:

      not less than  nor more than

      4,000 4,500

      4,700 4,800

      4,900 4,950

      5,100 5,200

      5,250 5,300

      5,900 6,000

      6,250 6,300

      7,250 7,300

      7,800 7,825

      8,000 8,400

      8,400 8,500

      8,500 8,600

      9,500 9,571

      10,600 10,700

      11,500 11,511

      11,512 11,525

      11,850 11,900

      11,900 11,950

      12,170 12,200

      12,500 12,600

      13,000 13,500

      14,300 14,400

      15,400 15,500

      16,100 16,200

      17,000 17,500

      18,000 18,500

      18,800 18,850

      19,000 19,100

      19,100 20,000

      21,000 21,100

      21,450 21,500

      21,500 21,600

      22,200 22,300

      24,200 24,240

      25,500 25,600

      26,950 27,000

      27,650 27,700

      28,600 28,650

      30,400 30,500

      39,100 39,200

      41,550 41,600

      42,150 42,200

      250,000 300,000

    2. This section shall not apply to judges of the county courts nor to chairs of county courts in the various counties of this state except in those counties where such judges or chairs exercise general criminal jurisdiction normally exercised by the criminal and circuit courts, jurisdiction of purely civil cases in which a jury is provided for, except insanity proceedings and condemnation of land proceedings, and jurisdiction to hear and determine divorce cases.
    1. Notwithstanding any provision of subsection (b) to the contrary, this section shall apply to any county having a population of not less than two hundred eighty-seven thousand seven hundred (287,700) nor more than two hundred eighty-seven thousand eight hundred (287,800), according to the 1980 federal census or any subsequent federal census.
    2. Subdivision (c)(1) shall have no effect unless it is approved by a two-thirds (2/3) vote of the county legislative body of any county to which it may apply. Its approval or nonapproval shall be proclaimed by the presiding officer of the county legislative body and shall be certified by such officer to the secretary of state.
  2. Notwithstanding any other public or private act, law or charter provision, subsection (a) shall also apply to judges of city courts of all cities of this state having a population in excess of one hundred sixty thousand (160,000), according to the federal census of 1980 or any subsequent federal census.

Acts 1961, ch. 283, § 1; 1965, ch. 85, § 1; 1965, ch. 336, § 1; 1973, ch. 312, § 1; 1974, ch. 521, § 1; T.C.A., § 17-119; modified; Acts 1983, ch. 180, §§ 1, 2; 1983, ch. 201, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.1, 24.10.

Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 4.

Law Reviews.

Constitutional Law — Necessary Qualifications for Judgeships, 30 Tenn. L. Rev. 640.

The Constitutional Policy That Judges Be Learned in the Law (Frederic S. Le Clercq), 47 Tenn. L. Rev. 689.

Cited: Crawford v. Gilpatrick, 646 S.W.2d 433, 1983 Tenn. LEXIS 608 (Tenn. 1983); Cousin v. Sundquist, 145 F.3d 818, 1998 FED App. 171P, 1998 U.S. App. LEXIS 10796 (6th Cir. Tenn. 1998), cert. denied, 525 U.S. 1138, 119 S. Ct. 1026, 143 L. Ed. 2d 37, 1999 U.S. LEXIS 1020 (U.S. Feb. 22, 1999); City of White House v. Whitley, 979 S.W.2d 262, 1998 Tenn. LEXIS 573 (Tenn. 1998).

NOTES TO DECISIONS

1. Constitutionality.

Requirement that judges referred to herein be authorized to practice law in the courts of Tennessee did not constitute an unreasonable classification under Tenn. Const., art. XI, § 8. .

The qualifications for judges as prescribed by the Constitution are minimum qualifications and the legislature may prescribe additional qualifications not prohibited by the Constitution so long as they do not interfere with nor nullify those constitutionally prescribed. La Fever v. Ware, 211 Tenn. 393, 365 S.W.2d 44, 1963 Tenn. LEXIS 358 (1963).

2. Application.

As the private act creating the court of general sessions for Cocke County conferred jurisdiction concurrent to a limited degree with circuit and criminal courts, but no more than the jurisdiction generally imposed in courts of general sessions, this section, requiring judges to be attorneys, did not apply to the general sessions court of Cocke County. State ex rel. Swann v. Freshour, 219 Tenn. 482, 410 S.W.2d 885, 1967 Tenn. LEXIS 451 (1967), rev'd, Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538, 1968 U.S. LEXIS 1632 (1968).

The issue of whether candidates for the office of county judge were required to be attorneys licensed to practice law in the state was rendered moot by the fact that the candidates were defeated in the general election prior to the adjudication of their appeal from the trial court. Perry v. Banks, 521 S.W.2d 549, 1975 Tenn. LEXIS 683 (Tenn. 1975).

The general sessions judge of Carter County is not subject to the provisions of this section and it is not required that he be licensed to practice law in this state. Ray v. Weaver, 586 S.W.2d 828, 1979 Tenn. LEXIS 501 (Tenn. 1979).

3. Authorized Punishment for Contempt.

Judgment granting a habeas corpus writ was reversed because the general sessions court, regardless of any legal error, had the authority to summarily hold defendant in contempt; under T.C.A. § 16-15-713, the general sessions court judge was authorized to impose a punishment of five days imprisonment upon finding defendant in contempt. Lambert v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 223 (Tenn. Crim. App. Apr. 10, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 536 (Tenn. Aug. 15, 2012), cert. denied, Lambert v. Tennessee, 184 L. Ed. 2d 740, 133 S. Ct. 950, 568 U.S. 1131, 2013 U.S. LEXIS 860 (U.S. 2013).

Collateral References.

Constitutional restrictions on nonattorney acting as judge in criminal proceeding. 71 A.L.R.3d 562.

Validity and construction of constitutional or statutory provision making legal knowledge or experience a condition of eligibility for judicial office. 71 A.L.R.3d 498.

17-1-107. Uniformly reported caseload statistics.

No additional state trial judge positions shall be created until the Tennessee comptroller of the treasury has established uniformly reported caseload statistics, which may include a weighted caseload formula and that prioritizes the need for additional positions among the judicial districts. The Tennessee comptroller of the treasury shall certify the data to the judiciary committee of the house of representatives and the judiciary committee of the senate.

Acts 1997, ch. 430, § 2; 2013, ch. 236, § 37; 2019, ch. 345, § 27; 2019, ch. 420, § 24.

Amendments. The 2013 amendment substituted “the civil justice committee of the house of representatives and the judiciary committee of the senate” for “the judiciary committees of the house of representatives and the senate” at the end of the last sentence.

The 2019 amendment by ch. 345 substituted “judiciary” for “civil justice” following “data to the” in the second sentence.

The 2019 amendment by ch. 420 substituted “comptroller of the treasury” for “judicial council” in the first sentence, and “The Tennessee comptroller of the treasury” for “The judicial council” in the last sentence.

Effective Dates. Acts 2013, ch. 236, § 94. April 19, 2013.

Acts 2019, ch. 345, § 148. May 10, 2019.

Acts 2019, ch. 420, § 27. May 21, 2019.

Part 2
Miscellaneous Duties and Powers

17-1-201. Attendance at court required.

Every judge and chancellor is required to hold the terms of courts for which the judge or chancellor is responsible at the regular times appointed by law, unless prevented by sickness of the judge or the judge's family or by some other unavoidable necessity.

Code 1858, § 3937 (deriv. Acts 1853-1854, ch. 39, § 2); Shan., § 5741; Code 1932, § 9933; T.C.A. (orig. ed.), § 17-106.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 617.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Collateral References. 48 C.J.S. Judges § 40.

17-1-202. Penalty for failure to open court.

Any judge or chancellor who fails to open court for which the judge or chancellor is responsible within the first three (3) days of each regular term, without sufficient excuse, shall have one hundred dollars ($100) of salary deducted for the failure.

Code 1858, § 3939 (deriv. Acts 1853-1854, ch. 39, § 1); Shan., § 5743; Code 1932, § 9934; T.C.A. (orig. ed.), § 17-107.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Collateral References. 48 C.J.S. Judges §§ 62, 70, 71.

17-1-203. Powers in other districts.

The judges and chancellors are, notwithstanding § 17-1-102, judges and chancellors for the state at large, and as such, may, upon interchange and upon other lawful ground, exercise the duties of office in any other judicial district in the state.

Code 1858, § 3915 (deriv. Acts 1822, ch. 10, §§ 1, 2; 1826, ch. 2, § 2; 1855-1856, ch. 24); Shan., § 5708; Code 1932, § 9894; modified; T.C.A. (orig. ed.), § 17-108.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 9.

Cited: Jordan v. Knox County, 213 S.W.3d 751, 2007 Tenn. LEXIS 26 (Tenn. 2007).

NOTES TO DECISIONS

1. In General.

Under our judicial system, judges and chancellors, no matter where elected or by whom, are officers for the state at large, and not merely for their own circuits or divisions. McCulley v. State, 102 Tenn. 509, 53 S.W. 134 (1899). See also Saffrons v. Ericson, 43 Tenn. 1, 1866 Tenn. LEXIS 6 (1866); In re Chadwell, 54 Tenn. 630, 1872 Tenn. LEXIS 98 (1872); Stuart v. State, 60 Tenn. 178, 1873 Tenn. LEXIS 432 (1873).

2. Pro Confesso Decree.

A judge, sitting by interchange with chancellor after chancellor adjourned court, had jurisdiction to enter decree pro confesso. Lieberman, Loveman & Cohn v. Knight, 153 Tenn. 268, 283 S.W. 450, 1925 Tenn. LEXIS 28 (1926).

3. Search Warrant.

Circuit judges in Tennessee are judges for the state at large and have broad authority to issue a search warrant for use outside the judicial circuit to which they are elected. United States v. Muncey, 185 F. Supp. 107, 1960 U.S. Dist. LEXIS 3493 (E.D. Tenn. 1960).

Magistrate did not have authority to issue search warrants for defendants'  homes because the magistrate issued the warrants for property located outside his judicial district; the magistrate was not sitting by interchange when he issued the search warrants, no evidence was introduced to establish that he was sitting by appointment or designation when he issued the warrants, and the State did not allege any other lawful ground authorizing him to exercise his duties in another district. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

Trial court properly granted defendants'  motion to suppress drugs and drug paraphernalia seized from their homes pursuant to search warrants because the warrants were invalid under the Fourth Amendment, as the district circuit court judge who issued the search warrants lacked jurisdiction to issue search warrants for defendants'  residences that were located in a different judicial district. Nothing in the record established that the issuing judge obtained jurisdiction to issue the search warrants by interchange, designation, appointment, or other lawful means. State v. Frazier, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

17-1-204. Extraordinary process.

  1. The judges and chancellors shall have interchangeable and concurrent jurisdiction to grant injunctions, attachments and all other extraordinary process, issuable out of, and returnable to, any of the circuit or chancery courts of this state.
  2. Upon making the requisite fiats for, and granting such extraordinary process, it shall be the duty of the judge or chancellor to enclose the papers accompanying the application and the order made, in a sealed envelope, directed to the clerk of the court to which the fiat is directed, which envelope shall be opened only by the clerk or the clerk's deputy.

Code 1858, §§ 3946, 3947 (deriv. Acts 1825, ch. 71, § 3; 1835-1836, ch. 4, § 9); Shan., §§ 5750, 5751; Code 1932, §§ 9946, 9947; T.C.A. (orig. ed.), § 17-109.

Cross-References. Extraordinary process, §§ 29-1-10329-1-109.

Vacancy in office of sheriff, appointment of process servers, § 8-8-108.

Textbooks. Tennessee Jurisprudence, 15 Tenn. Juris., Injunctions, §§ 2, 24.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

NOTES TO DECISIONS

1. Judges Covered.

The power to grant injunctions, attachments and other extraordinary process is intrusted to all our chancellors and circuit and special judges, interchangeably. In re Chadwell, 54 Tenn. 630, 1872 Tenn. LEXIS 98 (1872); Flippin v. Knaffle, 2 Cooper's Tenn. Ch. 238 (1875); Thompson v. Menefee, 6 Tenn. App. 118, — S.W. —, 1927 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1927).

The power of a criminal court judge to grant extraordinary process, including appointment of a receiver, was upheld. Shields v. Coleman, 157 U.S. 168, 15 S. Ct. 570, 39 L. Ed. 660, 1895 U.S. LEXIS 2188 (1895).

Tennessee circuit court possessed jurisdiction to enter an injunction in a child support case to restrain and enjoin an adoptive parent from further prosecution of a lawsuit which the parent filed in California because the petitioners which sought an injunction in the circuit court were requesting that the circuit court act as a court of equity. In re Justin H., — S.W.3d —, 2015 Tenn. App. LEXIS 414 (Tenn. Ct. App. May 29, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 863 (Tenn. Oct. 14, 2015).

2. Jurisdiction.

3. —Discretion.

The power to grant injunction is entrusted by statute to all chancellors, circuit and special judges and there is no statutory provision controlling the exercise of the discretionary power, but the discretion is a legal discretion and controlled by well settled rules, and the exercise of this discretion is not subject to appellate review, except in cases of manifest abuse of the discretion. Thompson v. Menefee, 6 Tenn. App. 118, — S.W. —, 1927 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1927).

4. —Mandatory Injunction.

If a judge had the power and jurisdiction to issue an injunction, he necessarily had the power to issue a mandatory injunction to prevent irreparable injury. Churchwell v. Callens, 36 Tenn. App. 119, 252 S.W.2d 131, 1952 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1952).

5. —Extraordinary Process Returnable to Another Court.

This section has been construed not to authorize any other judge or chancellor to usurp the jurisdiction of the chancery court in which the suit is pending so as to interfere with its judgments and decrees, but at the same time it is held that the issuance of “extraordinary” process made returnable to that court is not such interference. Churchwell v. Callens, 36 Tenn. App. 119, 252 S.W.2d 131, 1952 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1952).

6. —Writ of Attachment for Extraordinary Contempt.

A writ of attachment for extraordinary contempt is an extraordinary process. Churchwell v. Callens, 36 Tenn. App. 119, 252 S.W.2d 131, 1952 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1952).

7. Enjoining Execution.

8. —Own Execution.

Chancery will enjoin its own execution, upon an original bill in a proper case. Anderson v. Mullenix, 73 Tenn. 287, 1880 Tenn. LEXIS 126 (1880).

9. —Enjoining Execution from Another Court.

One chancellor cannot enjoin the decrees of another chancellor, with a view of having them revised, reviewed, or reversed in a different chancery court from that in which they were rendered; but it is competent for any chancellor to enjoin an execution from another chancery court, upon the ground that the judgment has been paid, or otherwise satisfied, or was obtained through fraud, or upon the ground that the judgment debtor is entitled to an equitable setoff. Deaderick v. Smith, 25 Tenn. 138, 1845 Tenn. LEXIS 46 (1845); Whiteside v. Latham, 42 Tenn. 91, 1865 Tenn. LEXIS 23 (1865); Smith v. Johnson, 49 Tenn. 225, 1870 Tenn. LEXIS 220 (1870); Douglass v. Joyner, 60 Tenn. 32, 1872 Tenn. LEXIS 471 (1872); Greenfield v. Hutton, 60 Tenn. 216, 1872 Tenn. LEXIS 476 (1872); Montgomery v. Whitworth, 1 Cooper's Tenn. Ch. 174 (1873); Bond v. Greenwald, 66 Tenn. 466, 1874 Tenn. LEXIS 166 (1874); Grader v. Coltart, 3 Shan. 562 (1875); Smith v. St. Louis Mut. Life Ins. Co., 3 Cooper's Tenn. Ch. 502 (1877); Anderson v. Mullenix, 73 Tenn. 287, 1880 Tenn. LEXIS 126 (1880); Churchwell v. Callens, 36 Tenn. App. 119, 252 S.W.2d 131, 1952 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1952).

Collateral References. Attachment 70.

17-1-205. Appointment of receivers.

The judges of the circuit courts and chancellors may also concurrently appoint receivers in vacation, whenever necessary in the proceedings of either the circuit or chancery courts, and the clerks of the courts, when required by the fiat, shall take bond with good security, from the receiver or applicant, as the case may be, for the faithful discharge of the duties of receiver.

Code 1858, § 3948 (deriv. Acts 1833, ch. 47, § 1); Shan., § 5752; Code 1932, § 9948; T.C.A. (orig. ed.), § 17-110.

Cross-References. Vacancy in office of sheriff, appointment of process servers, § 8-8-108.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 120, 359, 364.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

NOTES TO DECISIONS

1. Collateral Attack.

When a court having jurisdiction appoints a receiver, neither the appointment nor powers conferred on receiver are subject to collateral attack. Robertson v. Citizens' Bank of Watertown, 168 Tenn. 230, 77 S.W.2d 62, 1934 Tenn. LEXIS 44 (1934).

2. Courts Covered — Time for Appointment — Notice.

All the courts in this state are authorized to appoint receivers in proper cases, and the appointment may be made in vacation or in term time, upon notice or good cause shown why such notice should not be given. Williams v. Noland, 2 Cooper's Tenn. Ch. 151 (1874); Johnson v. Tucker, 2 Cooper's Tenn. Ch. 398 (1875); Johnston v. Hanner, 70 Tenn. 8, 1878 Tenn. LEXIS 176 (1878); Roberson v. Roberson, 71 Tenn. 50, 1879 Tenn. LEXIS 29 (1879); Enochs v. Wilson, 79 Tenn. 228, 1883 Tenn. LEXIS 48 (1883); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

3. —Appellate Courts.

Appellate courts may appoint receivers. Fleming v. Fleming, 8 Tenn. App. 315, — S.W.2d —, 1928 Tenn. App. LEXIS 145 (Tenn. Ct. App. 1928).

4. Receiver in Chancery Appointed by Criminal Judge.

The judge of a criminal court may appoint a receiver in a cause pending in a chancery court, and a federal court has no power to appoint another receiver and take the property out of the former receiver's hands. Shields v. Coleman, 157 U.S. 168, 15 S. Ct. 570, 39 L. Ed. 660, 1895 U.S. LEXIS 2188 (1895).

5. Receiver's Certificates — Issue and Status.

For a discussion of the character, issue and legal status of receiver's certificates issued by a court of equity, see Crosby v. Morristown & C. G. R. Co., 42 S.W. 507, 1897 Tenn. Ch. App. LEXIS 67 (1897).

6. Receiver's Compensation.

There is an implied contract on the part of him who obtains the appointment of a receiver to compensate such receiver. But a nonconsenting defendant is not so liable. Where on appeal there was no remand, decree of affirmance in appellate court is not res judicata as to right to compensation, and independent suit lies against complainant in first suit, and sureties on bonds, the liability of sureties on attachment bond being limited to amount of its penalty. Taylor v. Smith, 172 Tenn. 247, 111 S.W.2d 1020, 1937 Tenn. LEXIS 74 (1938).

7. Defenses against Receiver Suing.

Any defense, in a suit authorized to be brought by the receiver, which is good against the corporation represented by him, is good against receiver. King's, Inc. v. Maryland Casualty Co., 169 Tenn. 404, 88 S.W.2d 456, 1935 Tenn. LEXIS 63 (1935).

17-1-206. Marriage rites.

The several judges and chancellors of this state, including retired chancellors and retired judges of courts of record of this state and persons who were members of quarterly county courts or county commissions on August 1, 1984, are authorized to solemnize the rites of matrimony. For the purposes of this section, the several judges of the United States courts who are citizens of Tennessee are deemed to be judges of this state.

Code 1858, § 3949 (deriv. Acts 1845-1846, ch. 168, § 4); Shan., § 5753; Code 1932, § 9949; Acts 1965, ch. 11, § 1; 1973, ch. 66, § 2; T.C.A. (orig. ed.), § 17-111; Acts 1985, ch. 223, §§ 1, 2; 2003, ch. 376, §§ 1, 2.

Cross-References. Persons who may solemnize marriages, § 36-3-301.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mandamus, § 5.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. County Judge.

A county judge was authorized to solemnize the rites of marriage under statute providing “the several judges and chancellors of this state are authorized to solemnize the rites of matrimony.” Warren v. State, 156 Tenn. 614, 3 S.W.2d 1061, 1927 Tenn. LEXIS 156 (1928).

Collateral References. 48 C.J.S. Judges § 40; 55 C.J.S. Marriage § 29.

Part 3
Vacancies

17-1-301. Vacancies in office.

  1. If a vacancy occurs during the term of office of a judge of the supreme court, the court of appeals, or the court of criminal appeals, then the governor shall appoint a qualified person to fill the vacancy. The governor's appointee shall be confirmed and shall stand for election in a retention election in accordance with chapter 4, part 1 of this title.
  2. If a vacancy occurs in the office of a chancellor, circuit court judge, criminal court judge, or judge of any other state trial court of record, the vacancy shall be filled in accordance with chapter 4, part 3 of this title.

Acts 1870, ch. 24, § 6; 1871, ch. 128, §§ 1, 2; 1895, ch. 76, § 6; Shan., §§ 381, 6316; mod. Code 1932, §§ 637, 10609; modified; Acts 1965, ch. 289, § 1; impl. am. Acts 1967, ch. 226, § 3; 1969, ch. 138, § 1; 1979, ch. 384, § 1; T.C.A. (orig. ed.), § 17-112; Acts 1999, ch. 315, § 1; 2007, ch. 190, § 1; 2016, ch. 528, § 7.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Amendments. The 2016 amendment rewrote the section which read: “(a) If a vacancy occurs during the term of office of a judge of a circuit, chancery or criminal court, or any other state trial court of record, then the vacancy must be filled by the qualified voters of the judicial district at the next regular August election occurring more than thirty (30) days after the vacancy arises. For the purposes of this subsection (a), a vacancy shall be deemed to exist if, prior to September 1, the duly elected successor to any judicial office becomes ineligible as a result of death or other disqualifying event. In accordance with § 17-4-118, the governor shall appoint a person to discharge the duties of such office until August 31 following the election.“(b) If a vacancy occurs during the term of office of a judge of the court of appeals or court of criminal appeals, then the vacancy must be filled in accordance with chapter 4 of this title, from the grand division in which the vacancy occurs.“(c) If a vacancy occurs during the term of office of a judge of the supreme court, then the vacancy must be filled in accordance with chapter 4 of this title and the requirements of Tenn. Const. art. VI, § 2.”

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

Cross-References. Court of appeals and court of criminal appeals, vacancy, § 17-4-112.

Election to fill vacancy, § 8-18-104.

Grand divisions, title 4, ch. 1, part 2.

Impeachment of judges or chancellors, title 8, ch. 46.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 7.

Law Reviews.

Constitutional Law — Necessary Qualifications for Judgeships, 30 Tenn. L. Rev. 640.

The Constitutional Policy That Judges Be Learned in the Law (Frederic S. Le Clercq), 47 Tenn. L. Rev. 689.

Attorney General Opinions. Residency requirements for the appellate courts, OAG 94-141 (11/28/94).

Filling supreme court vacancy after negative retention election vote, OAG 96-117 (9/9/96).

Cited: Barry v. Lauck, 45 Tenn. 588, 1868 Tenn. LEXIS 52 (1868); Gold v. Fite, 61 Tenn. 237, 1872 Tenn. LEXIS 366 (1872); La Fever v. Ware, 211 Tenn. 393, 365 S.W.2d 44, 1963 Tenn. LEXIS 358 (1963); Cornelius v. McWilliams, 641 S.W.2d 508, 1982 Tenn. App. LEXIS 494 (Tenn. Ct. App. 1982).

NOTES TO DECISIONS

1. Vacancy on Supreme Bench.

Under the constitution of 1834, the governor had no power to fill a vacancy on the supreme bench longer than until the office could be filled by election, and it was his duty to order the election after notice as required by law. Calloway v. Sturm, 48 Tenn. 764, 1870 Tenn. LEXIS 144 (1870).

2. County Judge.

Under this section, upon the happening of a vacancy in the office of county judge, it was the duty of the governor to order an election to fill the vacancy, and in the meantime to appoint some suitable person to fill the office until the election. State ex rel. Smiley v. Glenn, 54 Tenn. 472, 1872 Tenn. LEXIS 75 (1872).

3. Repeal.

The repealing clause of Acts 1971, ch. 198, § 17, did not repeal this section as there was no conflict with former §§ 17-4-10117-4-116 and the repeal only applied to areas which were in conflict. State by Shriver v. Dunn, 496 S.W.2d 480, 1973 Tenn. LEXIS 480 (Tenn. 1973).

4. Time of Election.

A vacancy in the office of judge or district attorney-general only be filled at a special election held at the same time as a biennial August general election. State by Shriver v. Dunn, 496 S.W.2d 480, 1973 Tenn. LEXIS 480 (Tenn. 1973).

5. Appointment to Fill Vacancy.

Where death of supreme court judge occurred more than 30 days before August election, as governor made no appointment to fill part of term expiring August 31, 1972, governor's appointment of person to fill the term beginning September 1, 1972 had no validity. State by Shriver v. Dunn, 496 S.W.2d 480, 1973 Tenn. LEXIS 480 (Tenn. 1973).

6. Juvenile Court.

This section is not applicable to vacancies in the juvenile courts. Stambaugh v. Price, 532 S.W.2d 929, 1976 Tenn. LEXIS 611 (Tenn. 1976).

Collateral References. 46 Am. Jur. 2d Judges §§ 17, 18.

48 C.J.S. Judges § 32.

Judges 8.

17-1-302. [Repealed.]

Code 1858, §§ 312-314 (deriv. Acts 1853-1854, ch. 32, § 6); Acts 1895, ch. 76, § 6; impl. am. Acts 1907, ch. 436; Shan., §§ 382-384, 6316; mod. Code 1932, §§ 638-640, 10609; Acts 1969, ch. 138, § 2; impl. am. Acts 1972, ch. 740, § 7; impl. am. Acts 1979, ch. 384, § 1; T.C.A. (orig. ed.), § 17-113; repealed by Acts 2016, ch. 528, § 8, effective January 28, 2016.

Compiler's Notes. Former § 17-1-302 concerned writs for special elections.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-1-303. Vacancy in office of county judge.

  1. Whenever a vacancy, either by death, resignation or removal, occurs in the office of county judge, it shall be filled by the qualified voters of the county at the first regular election in August for any of the county officers, more than forty-five (45) days after the happening of the vacancy. In the meantime, the county legislative body, at its first meeting after the happening of the vacancy, shall elect a person learned in the law and legally qualified to discharge the duties of the office until the election by the people can be had. If the county legislative body fails or refuses to elect a successor to fill the office until the next regular August election, at its first meeting after the happening of the vacancy, then the governor shall appoint some person learned in the law and legally qualified to discharge the duties of the office, who shall serve until the next regular election in August, at which time the vacancy shall be filled by the qualified voters of the county.
  2. Unless the county legislative body is to have a regular meeting within ten (10) days after the vacancy occurs, it shall be the duty of the county clerk, or, in the county clerk's absence or inability to act, of the county clerk's deputy, and the clerk or deputy is empowered, immediately upon the occurrence of the vacancy, to give notice of a special meeting of the county legislative body to be held ten (10) days after the date of the notice, unless the date thus set falls upon a Sunday or holiday, in which case the meeting shall be fixed for the next business day, for the election of the person to fill the vacancy. The meeting shall be held upon the date thus fixed, and the presiding officer for the meeting shall be elected by the county legislative body.

Acts 1871, ch. 128, § 3; Shan., § 386; mod. Code 1932, § 641; Acts 1933, ch. 141, § 1; mod. C. Supp. 1950, § 641; Acts 1965, ch. 289, § 3; impl. am. Acts 1978, ch. 934, §§ 7, 22, 36; T.C.A. (orig. ed.), § 17-115.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 7.

Law Reviews.

Constitutional Law — Necessary Qualifications for Judgeships, 30 Tenn. L. Rev. 640.

The Constitutional Policy That Judges Be Learned in the Law (Frederic S. Le Clercq), 47 Tenn. L. Rev. 689.

Cited: State ex rel. Condon v. Maloney, 108 Tenn. 82, 65 S.W. 871, 1901 Tenn. LEXIS 12 (1901); La Fever v. Ware, 211 Tenn. 393, 365 S.W.2d 44, 1963 Tenn. LEXIS 358 (1963).

NOTES TO DECISIONS

1. County Judgeship.

Vacancies in the office of county judge could be filled in any manner prescribed by statute. Caldwell v. Lyon, 168 Tenn. 607, 80 S.W.2d 80, 1934 Tenn. LEXIS 91, 100 A.L.R. 1152 (1935).

2. Validity of Special Acts.

Private Acts 1949, ch. 523, § 3, providing for appointment of judge of county court in event of vacancy violated Tenn. Const., art. I, § 8, since it was in conflict with this section. State ex rel. Howard v. Register, 198 Tenn. 422, 280 S.W.2d 934, 1955 Tenn. LEXIS 391 (1955).

Collateral References. 46 Am. Jur. 2d Judges §§ 17, 18.

48 C.J.S. Judges §§ 31, 32.

Judges 8.

17-1-304. Powers after vacation of office.

  1. Whenever any trial judge vacates the office of judge for any cause whatsoever, other than the death or permanent insanity of the judge, the judge shall have and retain, as to cases pending before the judge, the trial of which has begun prior to the judge's vacation of office, all the powers in connection with the cases that the judge might have exercised therein, had the vacation of office not occurred.
  2. The judge's powers in this respect shall not extend beyond sixty (60) days from the date of such vacation of office.
  3. The powers shall especially include, but shall not be limited to, the right to render judgments, to hear and determine motions for new trial, to grant appeals and to approve bills of exceptions.
  4. The powers may be exercised by the judge either within or without the geographical limits assigned by law to the judge.

Acts 1945, ch. 21, § 1; C. Supp. 1950, § 9949.1; Acts 1973, ch. 116, § 1; T.C.A. (orig. ed.), § 17-116.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.12.

Tennessee Jurisprudence, 16 Tenn. Juris., Judges, §§ 7, 9.

Law Reviews.

The Constitutional Policy That Judges Be Learned in the Law (Frederic S. Le Clercq), 47 Tenn. L. Rev. 689.

Cited: De Long v. Pans Hans Properties, 626 S.W.2d 697, 1982 Tenn. LEXIS 376 (Tenn. 1982); State v. Brown, 644 S.W.2d 418, 1982 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 1982).

NOTES TO DECISIONS

1. Death in Office.

Where chancellor died before entry of decree, successor had right to review case de novo and write his own findings and this section, placing a time limit thereon, had no application. Bedford County Hospital v. County of Bedford, 42 Tenn. App. 569, 304 S.W.2d 697, 1957 Tenn. App. LEXIS 98 (Tenn. Ct. App. 1957).

2. Time Limitation.

Where the chief justice wrote a letter of designation prior to the expiration of the 60 day limitation asking the chancellor to conclude a case which was pending at the time he vacated office, and the chancellor rendered judgment in that case after the expiration of the 60 days, even where the letter of designation was not properly recorded, the court held the time limitation to be merely directory. Williams v. Daniel, 545 S.W.2d 120, 1976 Tenn. App. LEXIS 258 (Tenn. Ct. App. 1976).

Defendant, who was allowed a total of 90 days in which to perfect his appeal from a judgment of conviction for rape, was not excused from filing a bill of exceptions on his contention that the trial judge had resigned his office and consequently was unavailable for authentication of the bill of exceptions, where the trial judge's authority to authenticate the bill extended 60 days beyond his resignation and, if he were inaccessible, his successor could have authenticated the bill. Pennington v. State, 542 S.W.2d 100, 1976 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. 1976).

Retired judge who had heard defendants' trial for first-degree murder could not act on defendants' motion for a new trial or sign their bill of exceptions more than 60 days after the judge vacated his office. White v. State, 542 S.W.2d 628, 1976 Tenn. Crim. App. LEXIS 352 (Tenn. Crim. App. 1976).

Where defendant makes a motion for a new trial, the jury's adverse verdict is held in abeyance until the trial judge has overruled such motion, but where defendant's motion was overruled by a judge who had resigned his office more than 60 days previously, the overruling has no effect, defendant's conviction must be reversed and a new trial must be granted. Williams v. State, 550 S.W.2d 246, 1976 Tenn. Crim. App. LEXIS 323 (Tenn. Crim. App. 1976).

3. New Trial.

New trial should not have been granted on the modification of a parenting plan, because a mother never specifically requested it, she failed to show entitlement, she did not comply with a first judge's direction for a written submission to assist in a ruling on a motion to alter or amend, and she did not utilize T.C.A. § 17-1-304; the new trial was granted by a second judge due to the fact that he did not hear the proof presented to the first judge, and no transcript of the original proceeding existed. Myers v. Myers, — S.W.3d —, 2007 Tenn. App. LEXIS 610 (Tenn. Ct. App. Sept. 26, 2007).

Collateral References. 48 C.J.S. Judges § 46.

Judges 31.

17-1-305. New trial in event of vacancy in office.

When a vacancy in the office of trial judge exists by reason of death, permanent insanity as evidenced by adjudication, impeachment and conviction under Tenn. Const. art. V, or removal under Tenn. Const. art. VI, §  6, after verdict, but before the hearing of the motion for new trial, the trial judge's successor shall rule on the defendant's motion for new trial after the successor judge has reviewed the transcript and entire record of the trial.

Acts 1945, ch. 21, § 2; mod. C. Supp. 1950, § 9949.2; T.C.A. (orig. ed.), § 17-117; Acts 1994, ch. 833, § 1; 1996, ch. 926, § 1.

Attorney General Opinions. Grounds for impeachment of a United States District Court Judge, OAG 97-080 (5/21/97).

Law Reviews.

Procedure and Evidence — 1960 Tennessee Survey (Edmund M. Morgan), 13 Vand. L. Rev. 1197.

NOTES TO DECISIONS

1. Entry on Minutes — Necessity.

This section did not change the rule that courts speak only through their minutes. Jackson v. Handell, 46 Tenn. App. 234, 327 S.W.2d 55, 1959 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1959).

Oral pronouncements and handwritten notations by trial judge to effect that motions for new trial were overruled had no binding force where order was not entered on minutes before death of judge and subsequent orders by successor judge overruling motions were void. Jackson v. Handell, 46 Tenn. App. 234, 327 S.W.2d 55, 1959 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1959).

2. New Trial.

Where, on appeal, the technical record of the trial court reflected that the jury returned the verdict of guilty and that a judgment approving such verdict and sentence was in the record and the record further showed that defendant timely filed his motion for new trial and that the motion for new trial was heard and overruled on February 26, 1965, but such record was not signed by the judge trying the case and such judge died on March 29, 1965, the case was reversed and remanded for further proceedings. Howard v. State, 217 Tenn. 556, 399 S.W.2d 738, 1966 Tenn. LEXIS 609 (1966).

T.C.A. § 17-1-305 must be read together with other statutes, such as T.C.A. §§ 17-2-101 and 17-2-202 (incompetency provisions removed in 2012), which allow a different judge to sit by interchange over a case when the regular trial judge is incompetent to hear the case. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

In a death penalty case, the court properly denied defendant's motion for new trial because the successor judge properly concluded he was able to fulfill his duties as thirteenth juror; he found the weight of the trial evidence supported the verdicts, and the credibility of witnesses was not an overriding issue. State v. Hall, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Oct. 22, 2013), aff'd, 461 S.W.3d 469, 2015 Tenn. LEXIS 241 (Tenn. Mar. 20, 2015).

Original trial judge denied defendant's original motion for new trial in 1992, nearly 20 years before his death, such that the only motion for new trial that was filed during the effective date of the prior statute was not undisposed of at the time of the original judge's death. State v. Hall, 461 S.W.3d 469, 2015 Tenn. LEXIS 241 (Tenn. Mar. 20, 2015), cert. denied, Hall v. Tennessee, 193 L. Ed. 2d 349, 136 S. Ct. 479, — U.S. —, 2015 U.S. LEXIS 7117 (U.S. 2015).

New and amended motions for new trial, filed in 2009 and 2011, would not satisfy the plain language of the 1980 statute because those motions were not filed within the time provided by rule of the court; the motions were not presented to the original judge within 30 days of the order of defendant's sentences because these motions existed only by virtue of the delayed appeal, and because none of defendant's motions for new trial fell within the scope of the prior statute, its terms were inapplicable and did not afford a basis for relief. State v. Hall, 461 S.W.3d 469, 2015 Tenn. LEXIS 241 (Tenn. Mar. 20, 2015), cert. denied, Hall v. Tennessee, 193 L. Ed. 2d 349, 136 S. Ct. 479, — U.S. —, 2015 U.S. LEXIS 7117 (U.S. 2015).

Successor judge specified that he would consider certain testimony as it related to the use of shackles on defendant. Because this was an issue raised in defendant's new and amended motions for new trial that were filed as a part of the delayed appeal, this evidence was properly considered by the judge Blackwood when determining whether he could rule on the motions for new trial. State v. Hall, 461 S.W.3d 469, 2015 Tenn. LEXIS 241 (Tenn. Mar. 20, 2015), cert. denied, Hall v. Tennessee, 193 L. Ed. 2d 349, 136 S. Ct. 479, — U.S. —, 2015 U.S. LEXIS 7117 (U.S. 2015).

Witness credibility was not presented as an overriding issue that might have rendered the successor judge unable to rule upon the motions for new trial. State v. Hall, 461 S.W.3d 469, 2015 Tenn. LEXIS 241 (Tenn. Mar. 20, 2015), cert. denied, Hall v. Tennessee, 193 L. Ed. 2d 349, 136 S. Ct. 479, — U.S. —, 2015 U.S. LEXIS 7117 (U.S. 2015).

Post-conviction court properly denied petitioner post-conviction relief because he failed to show that trial counsel was deficient for failing to raise an ex post facto claim; application of the amended version of the statute raised no ex post facto concerns because it was a procedural rule, and the change in the statute did not affect the nature of conduct for which petitioner was convicted, aggravate the crime, change the range of punishment, or alter the evidence needed to convict him. Askew v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 26, 2016).

Post-conviction court properly denied petitioner post-conviction relief because he failed to show that trial counsel was deficient for failing to raise a due process claim; petitioner failed to show that application of the amended version of the statute violated his due process rights because the amendment clearly changed a procedural rule and did not implicate petitioner's right to notice, foreseeability, and fair warning with respect to his conduct that led to his criminal charges. Askew v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 26, 2016).

3. Habeas Corpus.

Appellate court overruled defendant's assertion pursuant to his habeas corpus petition that trial court lacked statutory authority to render a valid judgment pursuant to T.C.A. § 17-1-305 because claim that trial judge died before ruling on his motion for new trial was one that would make the judgment voidable and not void since proving the judge's death required proof beyond the face of the record. Demonbreun v. State, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 529 (Tenn. Crim. App. June 24, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 731 (Tenn. Sept. 29, 2008).

Collateral References. 48 C.J.S. Judges § 56.

17-1-306. Death or insanity pending appeal.

  1. Whenever such a vacancy arising from death or permanent insanity, evidenced by adjudication, occurs after disposition of the motion for new trial and appeal prayed and granted, but before the expiration of the time allowed for filing the bill of exceptions, the successor judge has and possesses the power to approve the bill of exceptions in such case if, after hearing, the successor judge finds that it fairly states the truth of the case.
  2. If such successor judge is unable to determine the truth of the case as stated in the bill of exceptions, the successor judge has the power to award a new trial to the losing party.

Acts 1945, ch. 21, § 3; C. Supp. 1950, § 9949.3; T.C.A. (orig. ed.), § 17-118.

Cross-References. Bills of exception abolished, T.R.A.P. 24.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.12.

Tennessee Jurisprudence, 12 Tenn. Juris., Exceptions, Bill of, § 15.

Law Reviews.

Civil Procedure and Evidence — Tennessee Survey 1970 (Jerry J. Phillips), 38 Tenn. L. Rev. 127.

Cited: Jackson v. Handell, 46 Tenn. App. 234, 327 S.W.2d 55, 1959 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1959); Howard v. State, 217 Tenn. 556, 399 S.W.2d 738, 1966 Tenn. LEXIS 609 (1966).

NOTES TO DECISIONS

1. Entry on Record.

This section was not intended to modify the rule that the court speaks only through its minutes, therefore when judge had orally stated that he overruled motions for new trial and made written notations that the motions were overruled but such judge died before such ruling was entered on the record the succeeding judge had no power to rule that the deceased judge had overruled such motions and therefore decree that such motions were overruled was void and the cases were required to be retried. Jackson v. Handell, 46 Tenn. App. 234, 327 S.W.2d 55, 1959 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1959).

2. Application of Section.

Under the language of this section the authority of a successor judge is limited to circumstances where a vacancy occurred because of death or adjudicated insanity and does not extend to special judge designated under § 17-2-110 because of incapacitating illness of trial judge. State ex rel. Speight v. Mt. Carmel Center, Inc., 224 Tenn. 485, 457 S.W.2d 33, 1970 Tenn. LEXIS 387 (1970).

Collateral References. 4 C.J.S. Appeal and Error § 470; 48 C.J.S. Judges §§ 31, 56, 101.

Judges 32.

Part 4
Secretarial Assistance

17-1-401. Provision for secretarial assistance.

  1. Secretarial assistance to trial judges and chancellors of courts of record whose entire compensation is paid by this state shall be provided on the basis of need by the administrative director of the courts.
  2. In addition to the judges and chancellors set out in subsection (a), the administrative director of the courts shall provide a salary supplement to an existing secretary to the judge of any court created by private act that is located in a county having a metropolitan form of government and a population in excess of three hundred thousand (300,000), according to the 1980 federal census or any subsequent federal census, if the judge of the local court has concurrent criminal and civil jurisdiction with judges of courts of record. The amount of the salary supplement shall be equal to the salary supplement provided a secretary of the circuit court of the county.

Acts 1967, ch. 175, § 1; T.C.A., § 17-120; Acts 1991, ch. 379, § 1; 1993, ch. 66, §§ 28, 29.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Law Reviews.

The Tennessee Court System — Law and Equity Courts (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 361.

NOTES TO DECISIONS

1. At-Will Employment.

Any policy requiring an incoming judge to continue the employment of an outgoing judge's secretarial assistant, whom the incoming judge may not know and with whom the incoming judge may not have an established positive working relationship, would pose a risk of undermining the efficient functioning of the judicial system. Moore-Pennoyer v. State, 515 S.W.3d 271, 2017 Tenn. LEXIS 184 (Tenn. Mar. 28, 2017).

Trial judge must remain free to select, supervise, and remove the secretarial assistant, and in turn, the secretarial assistant must remain free to leave the employment at any time should the secretarial assistant's working relationship with the trial judge become strained or dysfunctional; these purposes are served by the employment-at-will-doctrine. Moore-Pennoyer v. State, 515 S.W.3d 271, 2017 Tenn. LEXIS 184 (Tenn. Mar. 28, 2017).

When a trial judge's service ends, whether by term expiration, death, resignation, election defeat, or otherwise, the secretarial assistant's employment also ends; although secretarial assistants to outgoing judges may seek to obtain employment with an incoming judge, the incoming judge has no obligation to hire the secretarial assistant, and the secretarial assistant has no claim of right to continue in the position. Moore-Pennoyer v. State, 515 S.W.3d 271, 2017 Tenn. LEXIS 184 (Tenn. Mar. 28, 2017).

Trial judge secretarial assistants have occasionally been extended temporary employment in extraordinary circumstances, in the interim between a judge leaving office unexpectedly during a term (most often because of death or sudden, unexpected resignation) and a new judge being selected; such rare and temporary arrangements do not alter the at-will nature of a trial judge secretarial assistant's employment status. Moore-Pennoyer v. State, 515 S.W.3d 271, 2017 Tenn. LEXIS 184 (Tenn. Mar. 28, 2017).

Secretarial assistant's complaint against an elected trial judge failed to state a claim for tortious interference with her employment relationship because her employment automatically ended when the former trial judge's term ended, and the assistant remained employed until the end of the former judge's term; while the assistant had the right to seek new employment with the elected judge, she had no entitlement to the position. Moore-Pennoyer v. State, 515 S.W.3d 271, 2017 Tenn. LEXIS 184 (Tenn. Mar. 28, 2017).

Trial judge's secretarial assistant is an at-will employee, and as a result, the secretarial assistant's employment may be terminated at any time during the term of the trial judge to whom he or she is assigned, either by the judge or the secretarial assistant; if the relationship is not terminated during the trial judge's term, the secretarial assistant's employment automatically terminates when the trial judge's service ends. Moore-Pennoyer v. State, 515 S.W.3d 271, 2017 Tenn. LEXIS 184 (Tenn. Mar. 28, 2017).

2. Employment.

T.C.A. §§ 17-1-401(a) and 17-1-402(a) clearly limit the responsibility of the Administrative Office of the Courts (AOC) to determining whether a particular trial judge needs secretarial assistance and to fixing the salary of any secretarial assistant position for which a need has been determined to exist; once a secretarial assistant position is authorized, the trial judge, not the AOC, has the authority to select, supervise, and remove the secretarial assistant. Moore-Pennoyer v. State, 515 S.W.3d 271, 2017 Tenn. LEXIS 184 (Tenn. Mar. 28, 2017).

17-1-402. Fixing of salaries — Approval by chief justice — Payment.

  1. All salaries for secretarial positions shall be fixed within the limits of the appropriation for the salaries by the administrative director of the courts and the commissioner of finance and administration, with the approval of the chief justice of the supreme court.
  2. The salaries shall be payable in equal monthly installments out of the treasury upon the warrants of the commissioner of finance and administration.

Acts 1967, ch. 175, § 2; T.C.A., § 17-121; Acts 1993, ch. 66, § 30.

NOTES TO DECISIONS

1. Employment.

T.C.A. §§ 17-1-401(a) and 17-1-402(a) clearly limit the responsibility of the Administrative Office of the Courts (AOC) to determining whether a particular trial judge needs secretarial assistance and to fixing the salary of any secretarial assistant position for which a need has been determined to exist; once a secretarial assistant position is authorized, the trial judge, not the AOC, has the authority to select, supervise, and remove the secretarial assistant. Moore-Pennoyer v. State, 515 S.W.3d 271, 2017 Tenn. LEXIS 184 (Tenn. Mar. 28, 2017).

17-1-403. Sole authority authorizing secretarial assistance.

It is declared to be the legislative intent that this part shall supersede any and all existing general laws authorizing secretarial assistance for trial judges and chancellors or providing for their compensation, and that this part constitutes the sole authority for such purposes.

Acts 1967, ch. 175, § 3; T.C.A., § 17-122.

Chapter 2
Special Judges and Interchange

Part 1
Special Judges

17-2-101. Grounds of incompetency.

No judge or chancellor shall be competent, except by consent of all parties, to sit in the following cases:

  1. Where the judge or chancellor is interested in the event of any cause;
  2. Where the judge or chancellor is connected with either party, by affinity or consanguinity, within the sixth degree, computing by the civil law;
  3. Where the judge or chancellor has been of counsel in the cause;
  4. Where the judge or chancellor has presided on the trial in an inferior court; or
  5. In criminal cases for felony, where the person upon whom, or upon whose property, the felony has been committed, is connected with the judge or chancellor by affinity or consanguinity within the sixth degree, computing by the civil law.

Code 1858, § 3913 (deriv. Acts 1825, ch. 54, § 2; 1835-1836, ch. 68, § 1; 1843-1844, ch. 25, § 1); Shan., § 5706; Code 1932, § 9892; T.C.A. (orig. ed.), § 17-201.

Cross-References. Change of venue for incompetency, disqualification of judge, § 20-4-208.

Disqualification of judge, Tenn. Const., art. VI, § 11.

Rule Reference. This section is referred to in the Commentary under Tenn. Sup. Ct. R. 10, Canon 3(E).

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 620.

Tennessee Criminal Practice and Procedure (Raybin), § 24.11.

Tennessee Jurisprudence, 16 Tenn. Juris., Judges, §§ 18-20; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 5.

Law Reviews.

Constitutional Law — Separation of Powers — Procedure for Removal of Judge an Interference with Judicial Processes, 9 Vand. L. Rev. 88.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

Comparative Legislation. Special judges and interchange:

Ala.  Code § 12-1-12 et seq.

Ark.  Code §§ 16-13-103, 16-15-108, 16-10-117, 16-13-213, 16-13-405.

Ky. Rev. Stat. Ann. § 26A.020.

Mo. Rev. Stat. § 476.450.

N.C. Gen. Stat. § 7A-45.1.

Va. Code §§ 17-7, 17-7.1.

NOTES TO DECISIONS

1. Judgment by Incompetent as a Nullity.

Where a judgment is rendered by one incompetent to sit, it is a nullity. Reams v. Kearns, 45 Tenn. 217, 1867 Tenn. LEXIS 119 (1867).

2. Doubt as to Competency.

Any doubt as to competency of trial judge should be resolved in favor of defendant. Hamilton v. State, 218 Tenn. 317, 403 S.W.2d 302, 1966 Tenn. LEXIS 569 (1966).

3. Ministerial Acts.

Ministerial acts, in no way affecting the interests of the prisoner on the merits, may be performed by a judge incompetent to sit. Glasgow v. State, 68 Tenn. 485, 1876 Tenn. LEXIS 33 (1876).

4. Affinity Disqualifying.

A judge whose wife is a sister to the mother of a litigant is disqualified, because of connection by affinity; but a judge whose son's wife is an aunt of a litigant is not disqualified, there being no connection by affinity. Waterhouse v. Martin, 7 Tenn. 373, 7 Tenn. 374, 1824 Tenn. LEXIS 19 (1824); Hume v. Commercial Bank, 78 Tenn. 1, 1882 Tenn. LEXIS 131, 43 Am. Rep. 290 (1882).

A judge whose wife's sister is married to a litigant is not disqualified. Hume v. Commercial Bank, 78 Tenn. 1, 1882 Tenn. LEXIS 131, 43 Am. Rep. 290 (1882).

5. Presiding in Inferior Court.

Where judge while sitting as general sessions judge signed warrant for defendant's arrest after ex parte hearing, judge was disqualified from sitting as criminal court judge at defendant's trial for robbery. Hamilton v. State, 218 Tenn. 317, 403 S.W.2d 302, 1966 Tenn. LEXIS 569 (1966).

6. Acts While District Attorney.

A judge, who previous to his election to the bench, sent the bill of indictment against the prisoner is disqualified in that case. Mathis v. State, 50 Tenn. 127, 1871 Tenn. LEXIS 73 (1871).

Defendant was denied the right to a fair trial because of counsel's errors in that the failure of defense counsel to adequately investigate and support a motion for the recusal of the presiding trial judge resulted in prejudice to defendant, and defendant was denied the right to a fair trial before an impartial tribunal; the potential injury to the judicial process due to the appearance of impropriety and unfair lack of impartiality by a judge imposing a death sentence was too great to allow the sentence of death to stand. The judge's former role as the prosecutor of defendant on other criminal charges at the same time as his trial for murder, multiple and regular instances of communication between the judge and other prosecutors regarding defendant's criminal cases, and the judge's acquisition of defendant's statement regarding his involvement in the murders compelled a conclusion that Strickland  prejudice had been established by, among other things, operation of the denial of due process and the specter of potential unfairness. Smith v. State, 357 S.W.3d 322, 2011 Tenn. LEXIS 1152 (Tenn. Dec. 19, 2011), cert. denied, Smith v. Tennessee, 184 L. Ed. 2d 48, 133 S. Ct. 104, 568 U.S. 828, 2012 U.S. LEXIS 6925 (U.S. 2012).

7. Interest as Disqualification.

If a judge has the slightest interest in a cause, he is incompetent to preside on its trial, both by the common law and by Tenn. Const., art. VI, § 11. Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874).

The fact that a suit involved the constitutionality of the 1932 code, and that the supreme court in accordance with statute appointed the code commission which drafted the code, and publicly commended the industry and ability of the commissioners, did not disqualify the justices of that court to hear the cause. Interest as a citizen in a public question does not disqualify. Chumbley v. People's Bank & Trust Co., 165 Tenn. 655, 57 S.W.2d 787, 1932 Tenn. LEXIS 100 (1933).

Fact that a trial judge in a divorce proceeding had an office sharing arrangement with the lawyer of one of the parties to the divorce proceeding during a portion of the time that the lawyer was representing the party in a different matter did not require the judge's recusal. Kinard v. Kinard, 986 S.W.2d 220, 1998 Tenn. App. LEXIS 543 (Tenn. Ct. App. 1998), modified, 986 S.W.2d 220, 1998 Tenn. App. LEXIS 598 (Tenn. Ct. App. 1998).

The fact that a judge was once professionally associated with a lawyer for one of the parties in a case is not, without more, grounds for disqualification. Kinard v. Kinard, 986 S.W.2d 220, 1998 Tenn. App. LEXIS 543 (Tenn. Ct. App. 1998), modified, 986 S.W.2d 220, 1998 Tenn. App. LEXIS 598 (Tenn. Ct. App. 1998).

8. Prejudice.

A judge who, before he has tried the case, declares that he can prove defendant's guilt whether defendant confesses or not, is incompetent under spirit of this section, but where the judge denies such decision in advance, it must be made to appear beyond any doubt that such decision had been made. In re Cameron, 126 Tenn. 614, 151 S.W. 64, 1912 Tenn. LEXIS 82 (1912).

In absence of bill of exceptions Court of Appeals would presume that question of prejudice of presiding judge was resolved against appellant. Talley v. Talley, 51 Tenn. App. 622, 371 S.W.2d 152, 1962 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1962).

In habeas corpus proceeding, judge who had previously expressed himself to effect that the petitioner had already served enough time in the penitentiary and to the effect that he intended to grant the petition regardless of proof should have excused himself and failure to do so required reversal of judgment sustaining petition and required that case be remanded for trial before impartial judge. Leighton v. Henderson, 220 Tenn. 91, 414 S.W.2d 419, 1967 Tenn. LEXIS 392 (1967).

9. Waiver of Incompetency.

Confession of judgment in writing waives incompetency of a justice on account of relationship, and estops the party to question the validity of the judgment on account of such incompetency. Hilton v. Dan'l Miller & Co., 73 Tenn. 395, 1880 Tenn. LEXIS 148 (1880); Holmes v. Eason, 76 Tenn. 754, 1882 Tenn. LEXIS 6 (1882).

Where no objection is made on account of incompetency, and the parties go to trial upon the merits, the proceedings are not void. If the incompetency is waived in writing, or by entry of record, the judgment is valid in all respects. Certain incompetencies are waived by going to trial without objection. Posey v. Eaton, 77 Tenn. 500, 1882 Tenn. LEXIS 91 (1882); Holmes v. Eason, 76 Tenn. 754, 1882 Tenn. LEXIS 6 (1882); Hume v. Commercial Bank, 78 Tenn. 1, 1882 Tenn. LEXIS 131, 43 Am. Rep. 290 (1882); Radford Trust Co. v. East Tenn. Lumber Co., 92 Tenn. 126, 21 S.W. 329, 1892 Tenn. LEXIS 57 (1892); Grundy County v. Tennessee C., I. & R.R., 94 Tenn. 295, 29 S.W. 116, 1894 Tenn. LEXIS 46 (1895); Cooper v. Hamilton Perpetual Bldg. & Loan Ass'n, 97 Tenn. 285, 37 S.W. 12, 1896 Tenn. LEXIS 141, 56 Am. St. R. 795, 33 L.R.A. 338 (1896); In re Cameron, 126 Tenn. 614, 151 S.W. 64, 1912 Tenn. LEXIS 82 (1912).

The right to be tried by a judge who is constitutionally qualified can be waived, but such waiver must be voluntarily, knowingly and intelligently given. State v. Blackmon, 984 S.W.2d 589, 1998 Tenn. LEXIS 747 (Tenn. 1998).

10. —Time for Objection.

The objection cannot be made for the first time on appeal, where the trial is de novo in the circuit court, and the objection should come before trial is had on the merits. Wroe v. Greer, 32 Tenn. 172, 1852 Tenn. LEXIS 43 (1852); Hilton v. Dan'l Miller & Co., 73 Tenn. 395, 1880 Tenn. LEXIS 148 (1880).

Incompetency of judge, held waived in civil case for failure to make objection in limine on the hearing. Obion County use of Houser Creek Drainage Dist. v. Coulter, 153 Tenn. 469, 284 S.W. 372, 1926 Tenn. LEXIS 8 (1926).

Defendants waived recusal when the trial judge advised the parties at the beginning of the first trial that he knew the plaintiffs and had attended college with them and defendants did not question his impartiality. Corrado v. Hickman, 113 S.W.3d 319, 2003 Tenn. App. LEXIS 195 (Tenn. Ct. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 629 (Tenn. June 30, 2003).

11. —Criminal Cases.

Incompetency of trial judge in criminal case cannot be waived by consent of defendant. Hamilton v. State, 218 Tenn. 317, 403 S.W.2d 302, 1966 Tenn. LEXIS 569 (1966).

Right to waive disqualification of judge exists in both criminal and civil cases. State ex rel. Roberts v. Henderson, 223 Tenn. 115, 442 S.W.2d 629, 1969 Tenn. LEXIS 394 (1969) (overruling Wilson v. State, 153 Tenn. 206, 281 S.W. 151, 1925 Tenn. LEXIS 19 (1925) holding that defendant cannot waive disqualification in criminal cases).

Voluntary plea of guilty amounted to waiver of right to have criminal court judge disqualified on ground that such judge, while general sessions judge, issued warrant for arrest of defendant. State ex rel. Roberts v. Henderson, 223 Tenn. 115, 442 S.W.2d 629, 1969 Tenn. LEXIS 394 (1969).

12. Transfer of Cause.

Where judge of one division of circuit court had filed original divorce suit as an attorney and would have been disqualified to hear petition for change of custody of child, transfer to another division of the court was a more natural solution to the problem than the appointment of a special judge. Talley v. Talley, 51 Tenn. App. 622, 371 S.W.2d 152, 1962 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1962).

13. Abuse of Discretion.

Unless the grounds for recusal fall within those enumerated in T.C.A. § 17-2-101 or in Tenn. Const. art. 6, § 11, the trial judge's refusal to recuse is reviewed as an abuse of discretion. Baker v. Hooper, 50 S.W.3d 463, 2001 Tenn. App. LEXIS 172 (Tenn. Ct. App. 2001), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 546 (Tenn. July 2, 2001).

14. Insufficient Evidence To Require Recusal.

Judge was not required to recuse himself in a case where the defendant was represented by a law firm whose former partner made a contribution to the judge's campaign; plaintiff failed to show that the trial judge had any knowledge of the sources of prior campaign contributions. Todd v. Jackson, 213 S.W.3d 277, 2006 Tenn. App. LEXIS 458 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1080 (Tenn. Nov. 13, 2006), cert. denied, — U.S —, 127 S. Ct. 1851, 167 L. Ed. 2d 344, 2007 U.S. LEXIS 3232 (U.S. 2007).

Defendant's conviction for premeditated first-degree murder and his subsequent sentence to death were both proper because there was no indication in the record before the appellate court that the trial judge prejudged any factual issues that arose related to defendant's re-sentencing hearing; thus, the appellate court was unable to conclude that the trial court abused its discretion in denying the motion for recusal. State v. Rimmer, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 250 S.W.3d 12, 2008 Tenn. LEXIS 108 (Tenn. Feb. 20, 2008).

In terminated employee's defamation suit against a doctor, trial court did not err by denying employee's untimely post-trial motion to recuse trial judge under T.C.A. § 17-2-101 where record did not show that any relationship existed between the judge's son and the doctor. Rose v. Cookeville Reg'l Med. Ctr., — S.W.3d —, 2008 Tenn. App. LEXIS 286 (Tenn. Ct. App. May 14, 2008).

Although the trial judge had previously prosecuted defendant when he worked as an assistant district attorney general, neither Tenn. Const. art. VI, § 11, T.C.A. § 17-2-101(3), nor Tenn. Sup. Ct. R. 10, Canon 3(E)(1) mandated that the trial judge recuse himself because there was no indication that he used confidential or privileged information when conducting the trial at issue or when sentencing defendant. The trial judge's impartiality could not be reasonably questioned, without supporting evidence, by the fact that he had previously prosecuted defendant on an unrelated matter. State v. Burton, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 616 (Tenn. Crim. App. Aug. 3, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 840 (Tenn. Dec. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 854 (Tenn. Dec. 14, 2009).

Wife's alleged death threat against a judge did not give the judge an impermissible interest in the litigation, necessitating recusal, under T.C.A. § 17-2-101 as the judge did not have a pecuniary or property interest in the litigation, or a right in the subject matter. Malmquist v. Malmquist, 415 S.W.3d 826, 2011 Tenn. App. LEXIS 504 (Tenn. Ct. App. Sept. 16, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 115 (Tenn. Feb. 21, 2012).

Trial court properly denied plaintiff's motion to recuse the judge because no facts were alleged or shown to question the impartiality of the judge since serving on the same board with a party to the litigation unrelated to the work of the board and attending three board meetings together but having no personal relationship was not enough to require recusal. Van Duyn v. Elec. Innovations, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 383 (Tenn. Ct. App. June 10, 2013).

Even if a former wife sent a purported email and told her former husband that her father was friends with all the judges in the City and that her attorney told her that the trial judge hated the former husband and would gladly throw the book at him, the trial judge did not have a duty to recuse herself because the alleged threats did not involve actions or statements made by the trial judge; the alleged threats were made by one of the litigants to another party that happened to invoke the trial judge's name. Phillips v. Phillips, — S.W.3d —, 2013 Tenn. App. LEXIS 446 (Tenn. Ct. App. July 8, 2013).

Post-conviction judge did not err by denying petitioner's motion for recusal; the fact that, during petitioner's murder trial, the judge had reminded the prosecutor to establish venue was not a reasonable basis for questioning the judge's impartiality, as the state had proven venue with evidence that the murder occurred at a prison that was commonly known to be in Johnson County. Simerly v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. May 29, 2013).

Wife's motion to recuse the trial judge was properly denied because the wife failed to show a reasonable basis for questioning the trial judge's impartiality; the trial court did not rule in excess of the relief the husband requested, and the transcript of the contempt hearing reflected no disdain toward the wife. Stark v. Stark, — S.W.3d —, 2019 Tenn. App. LEXIS 302 (Tenn. Ct. App. June 18, 2019).

Trial court did not err in denying a mother's motion for recusal where although the mother had included an affidavit, she had not alleged that the chancellor had a pecuniary or property interest or some other right in the instant litigation, nor had she mentioned the chancellor's kinship to either party, a prior of counsel relationship to either party, or having presided over the trial. Dye v. Dye, — S.W.3d —, 2019 Tenn. App. LEXIS 607 (Tenn. Ct. App. Dec. 18, 2019).

15. Recusal Required.

In a medical malpractice case, recusal was not appropriate based on an argument relating to the confidentiality of the trial judge's medical records where there was no indication that a physician-patient relationship with an expert witness extended beyond that disclosed by the judge; however, recusal was appropriate because this might have given rise to actual or perceived bias in light of the judge's role as the thirteenth juror. An appearance of partiality arose where the trial judge had underwent surgery performed by the expert witness during the pendency of this litigation. Hall v. Randolph, — S.W.3d —, 2014 Tenn. App. LEXIS 14 (Tenn. Ct. App. Jan. 14, 2014).

Trial court abused its discretion in denying a wife's recusal motion because photographs of social interactions between the judge and the husband's attorney, taken from the judge's social media account, depicted a closeness to their friendship that undermined the wife's confidence in the judge's ability to remain impartial; the effect of the judge's action in accepting the wife's “follow” request was to initiate an ex parte online communication with a litigant whose case was pending before him. Frazier v. Frazier, — S.W.3d —, 2016 Tenn. App. LEXIS 629 (Tenn. Ct. App. Aug. 26, 2016).

It was error to deny a motion for recusal because, by communicating with an extrajudicial source, the judge learned information concerning facts in dispute, as judge did not solely rely on matters learned in the courtroom or disclose the specifics of the communication, denying the parties a chance to test the source's qualifications. Holsclaw v. Ivy Hall Nursing Home, Inc., — S.W.3d —, 2016 Tenn. App. LEXIS 964 (Tenn. Ct. App. Dec. 19, 2016), rev'd, 530 S.W.3d 65, 2017 Tenn. LEXIS 558 (Tenn. Sept. 19, 2017).

Comments by the judge created an appearance of bias against the wife and her counsel that required recusal; the judge improperly consulted Twitter to resolve disputes surrounding how and when an online media outlet obtained the wife's trial brief, then used the results of his independent investigation to influence his custody decision. Nothing about the providing of a copy of the brief to the media outlet violated the Tennessee Rules of Professional Conduct, and nothing should have colored his view of the wife regarding custody. Beaman v. Beaman, — S.W.3d —, 2018 Tenn. App. LEXIS 609 (Tenn. Ct. App. Oct. 19, 2018).

16. Insufficient Grounds.

Opposing party's potential trial strategy does not provide a ground for recusal. Therefore, in a medical malpractice case, although a trial judge was recused for a prior physician-patient relationship with an expert witness, recusal was not appropriate based on the fact that the motion could have been used strategically to avoid a negative ruling as the case proceeded to trial. Hall v. Randolph, — S.W.3d —, 2014 Tenn. App. LEXIS 14 (Tenn. Ct. App. Jan. 14, 2014).

Denial by a trial court of a parent's motion to recuse the trial court was appropriate in a post-divorce child custody proceeding after the trial court, sua sponte, ordered the parent to undergo a mental examination because the trial court's decision to lodge a sua sponte motion for a mental examination of the parent and to ultimately order the examination in the case did not create an appearance of bias for which recusal was necessary. C. D. B. v. A.B., — S.W.3d —, 2018 Tenn. App. LEXIS 215 (Tenn. Ct. App. Apr. 26, 2018).

17. Standing.

Although plaintiff alleged that the Tennessee Plan and statutes providing for the appointment of special and senior judges violated her constitutional rights, plaintiff failed to allege any injury that was distinguishable from other voters, citizens, or litigants. Accordingly, the trial court properly dismissed plaintiff's complaint for lack of standing. Durham v. Haslam, — S.W.3d —, 2016 Tenn. App. LEXIS 236 (Tenn. Ct. App. Apr. 1, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 517 (Tenn. July 21, 2016), cert. denied, 196 L. Ed. 2d 522, 137 S. Ct. 641, — U.S. —, 2017 U.S. LEXIS 665 (U.S. Jan. 9, 2017).

Collateral References. 46 Am. Jur. 2d Judges §§ 50-97.

48 C.J.S. Judges §§ 77-83.

Disqualification of judge based on property-ownership interest in litigation which consists of more than mere ownership of stock—state cases. 56 A.L.R.5th 783.

Disqualification of judge by state, in criminal case, for bias or prejudice. 68 A.L.R.3d 509.

Disqualification of judge for bias against counsel for litigant. 54 A.L.R.5th 575.

Disqualification of judge for having decided different case against litigant — state cases. 85 A.L.R.5th 547.

Disqualification of judge, justice of the peace, or similar judicial officer for pecuniary interest in fines, forfeitures, or fees payable by litigant. 72 A.L.R.3d 375.

Disqualification of original trial judge to sit on retrial after reversal or mistrial. 60 A.L.R.3d 176.

Dissolution of marriage as affecting disqualifying relationship by affinity in case of judge. 117 A.L.R. 800.

Membership in fraternal or social club or order affected by a case as ground for disqualification of judge. 75 A.L.R.3d 1021.

Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution. 91 A.L.R.5th 437.

Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case. 85 A.L.R.5th 471.

Relationship of judge to one who is party in an official or representative capacity as disqualification. 10 A.L.R.2d 1307.

Relationship to attorney as disqualifying judge. 50 A.L.R.2d 143.

Substitution of judge in state criminal trial. 45 A.L.R.5th 591.

Judges 39-56.

17-2-102. Incompetency of supreme court judges.

The judges of the supreme court, within the first week of each term, or as soon thereafter as the fact comes to their knowledge, shall certify to the governor all cases upon the docket in which any of them are incompetent to sit, upon the receipt of which certificate the governor shall appoint and commission the requisite number of competent lawyers to dispose of the causes.

Code 1858, § 3919 (deriv. Acts 1835-1836, ch. 68, § 1); Shan., § 5715; Code 1932, § 9901; T.C.A. (orig. ed.), § 17-202.

Cross-References. Incompetency of judges, appointment of special judges, Tenn. Const., art. VI, § 11.

Law Reviews.

Constitutional Law — Necessary Qualifications for Judgeships, 30 Tenn. L. Rev. 640.

The Constitutional Policy That Judges Be Learned in the Law (Frederic S. Le Clercq), 47 Tenn. L. Rev. 689.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191.

Cited: Freeman v. Felts, 208 Tenn. 201, 344 S.W.2d 550, 1961 Tenn. LEXIS 412 (1961); La Fever v. Ware, 211 Tenn. 393, 365 S.W.2d 44, 1963 Tenn. LEXIS 358 (1963); Holder v. Tennessee Judicial Selection Comm'n, 937 S.W.2d 877, 1996 Tenn. LEXIS 688 (Tenn. 1996).

17-2-103. Powers of special supreme court judges.

The special judges commissioned pursuant to §  17-2-102 shall hear and determine the causes in the commission set forth, and all such other causes during the same term, and shall have the same power and authority in those causes as the regular judges of the court.

Code 1858, § 3920 (deriv. Acts 1835-1836, ch. 68, § 1); Shan., § 5716; Code 1932, § 9902; T.C.A. (orig. ed.), § 17-203.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191.

17-2-104. Sickness of judges of supreme court.

In case of the sickness of any one (1) or more of the judges of the supreme court, the governor shall have the power to commission persons learned in law to fill the vacancy during the illness of the judge or judges.

Acts 1868-1869, ch. 28, § 3; 1895, ch. 76, § 7; Shan., § 5725; mod. Code 1932, § 9914; modified; T.C.A. (orig. ed.), § 17-204.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191.

Cited: La Fever v. Ware, 211 Tenn. 393, 365 S.W.2d 44, 1963 Tenn. LEXIS 358 (1963); Hooker v. Haslam, 393 S.W.3d 156, 2012 Tenn. LEXIS 719 (Tenn. July 27, 2012).

17-2-105. Special judges for appellate courts.

In case of the incompetency, sickness or other disability of any judge of the court of appeals or court of criminal appeals, the governor shall have the power to commission a person to fill the vacancy during the incompetency, sickness or other disability of the judge, and the person so appointed shall be paid the same salary for the time served and receive the same expense allowance as that allowed the regular judge.

Acts 1895, ch. 76, § 7; Shan., § 6317; mod. Code 1932, § 10610; Acts 1961, ch. 231, § 1; impl. am. Acts 1967, ch. 226, § 1; T.C.A. (orig. ed.), § 17-205.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 25.

Law Reviews.

The Tennessee Court System — Court of Appeals (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 219.

17-2-106. Compensation of special supreme court judge.

Special judges of the supreme court shall in all cases be paid the same salary for the time served and receive the same expense allowance as are allowed the regular judges.

Code 1858, § 3930 (deriv. Acts 1835-1836, ch. 68, § 2); Acts 1895, ch. 76, § 7; Shan., § 5729; mod. Code 1932, § 9918; Acts 1961, ch. 231, § 2; T.C.A. (orig. ed.), § 17-206.

Collateral References. Judges 22(8).

17-2-107. General sessions judges.

The provisions of this chapter in relation to the incompetency of judges and chancellors, and to the disposition of causes in which they are incompetent, shall equally apply to judges of the courts of general sessions, and the judges may interchange with each other when necessary for the dispatch of business.

Code 1858, § 3925; Shan., § 5722; Code 1932, § 9908; modified; impl. am. Acts 1978, ch. 934, § 36; T.C.A. (orig. ed.), § 17-213.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 5.

17-2-108. [Repealed.]

Compiler's Notes. Former § 17-2-108 (Code 1858, § 3921 (deriv. Acts 1857-1858, ch. 90, § 1); Shan., § 5717; Code 1932, § 9903; T.C.A. (orig. ed.), § 17-214), concerning special judge or chancellor by consent, was repealed by Acts 1997, ch. 473, § 4.

17-2-109. Special judge by judicial appointments.

    1. Whenever litigation in any chancery, circuit, criminal, general sessions, juvenile, probate or appellate court of this state becomes congested or delay in the disposition of litigation becomes imminent for any reason, the chief justice of the supreme court shall assign a retired or regular chancellor or judge to assist in the removal of the congestion or delay; provided, that the assignment shall not materially interfere with the performance of the assigned chancellor's or judge's official duties. In such situation both chancellors or judges may hear, try and dispose of litigation in such court at the same time, both signing their respective minutes.
    2. Whenever litigation in any chancery or circuit court of this state becomes congested, or whenever litigation in any chancery or circuit court has required the recusal of a chancellor or judge, or whenever delay in the disposition of litigation becomes imminent for any reason, the chief justice of the supreme court may assign a former chancellor or judge to assist in the removal of the congestion or delay.
  1. Notwithstanding subsection (a), any chancellor or judge has the discretion to request another chancellor or judge to assist in the removal of congestion or delay if the original chancellor or judge becomes aware of the need for assistance before the supreme court makes the assignment; and, in such situation, both the requesting chancellor or judge and the requested chancellor and judge may hear, try and dispose of litigation in such court at the same time, both signing their respective minutes.
  2. Nothing in this section shall be construed to interfere with the appointment of special chancellors or judges as provided elsewhere by statute.

Acts 1949, ch. 278; § 1; C. Supp. 1950, § 9945.7 (Williams, § 9923.1); Acts 1963, ch. 87, § 1; T.C.A. (orig. ed.), § 17-215; Acts 1987, ch. 65, § 1; 1995, ch. 236, § 1; 1997, ch. 473, § 5; 1999, ch. 23, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.12.

Cited: La Fever v. Ware, 211 Tenn. 393, 365 S.W.2d 44, 1963 Tenn. LEXIS 358 (1963); Leighton v. Henderson, 220 Tenn. 91, 414 S.W.2d 419, 1967 Tenn. LEXIS 392 (1967); State v. Brown, 644 S.W.2d 418, 1982 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 1982); Dupuis v. Hand, 814 S.W.2d 340, 1991 Tenn. LEXIS 168 (Tenn. 1991); In re Valle, 31 S.W.3d 566, 2000 Tenn. App. LEXIS 107 (Tenn. Ct. App. 2000).

NOTES TO DECISIONS

1. Generally.

Trial court acted within its authority because the Supreme Court of Tennessee appointed a retired chancellor to hear a conservatorship proceeding. Arnold v. Kennedy, — S.W.3d —, 2013 Tenn. App. LEXIS 369 (Tenn. Ct. App. May 31, 2013).

17-2-110. Special judge assigned by chief justice upon certification.

  1. When any chancellor or circuit, criminal or appellate judge is, for any reason, unable to try the docket in any court of the chancellor's or judge's division or circuit, the chancellor or judge shall certify to the chief justice of the supreme court the fact of the inability, with a request that the chief justice assign some other chancellor, circuit, criminal or appellate judge to hear the case or cases that the chancellor or judge is unable to hear and decide.
  2. It is the duty of the chief justice to designate some other chancellor or circuit or criminal judge who is not or will not be engaged in hearing causes in that chancellor's or judge's own division or circuit to repair to the place where the case or cases mentioned in subsection (a) are to be heard, and hear and decide the case or cases in all respects as if the chancellor or judge were the duly elected judge of that division or circuit.
  3. It shall be no objection to the authority of the assigned chancellor or judge that the regular chancellor or judge is engaged in the hearing of causes in the same or another county of the same division or circuit.

Acts 1919, ch. 166, § 1; Shan. Supp., § 5917a3; Code 1932, § 9929; T.C.A. (orig. ed.), § 17-216; Acts 1987, ch. 65, § 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.12.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191.

Cited: Bedford County Hospital v. County of Bedford, 42 Tenn. App. 569, 304 S.W.2d 697, 1957 Tenn. App. LEXIS 98 (Tenn. Ct. App. 1957); Leighton v. Henderson, 220 Tenn. 91, 414 S.W.2d 419, 1967 Tenn. LEXIS 392 (1967); Dupuis v. Hand, 814 S.W.2d 340, 1991 Tenn. LEXIS 168 (Tenn. 1991); Maxwell Med., Inc. v. Chumley, 282 S.W.3d 893, 2008 Tenn. App. LEXIS 542 (Tenn. Ct. App. Sept. 22, 2008); Hooker v. Haslam, 393 S.W.3d 156, 2012 Tenn. LEXIS 719 (Tenn. July 27, 2012).

NOTES TO DECISIONS

1. Authority of Judge Assigned.

Authority of successor judge to settle bill of exceptions was limited to circumstances where vacancy occurred because of death or adjudicated insanity as enumerated in § 17-118 (now § 17-1-306) and did not extend to judge designated under this section because of incapacitating illness of trial judge, the remedy in such case being a bill in equity to require the circuit court to award a new trial. State ex rel. Speight v. Mt. Carmel Center, Inc., 224 Tenn. 485, 457 S.W.2d 33, 1970 Tenn. LEXIS 387 (1970).

17-2-111. Expenses of assigned judge or chancellor.

The expenses of the chancellor, judge or appellate judge who serves as assigned by the chief justice under § 17-2-109 or § 17-2-110, or the retired judge designated or assigned in accordance with § 16-3-502(2), shall be certified by the chancellor, judge, appellate judge or retired judge pursuant to policies and guidelines promulgated by the supreme court. The expenses shall be paid in addition to the regular salary of the judge.

Acts 1919, ch. 166, § 2; Shan Supp., § 5917a4; mod. Code 1932, § 9930; impl. am. Acts 1937, ch. 33, § 24; modified; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 17-217; Acts 1987, ch. 65, § 3; 1993, ch. 196, § 3.

17-2-112. Transfers from chancery to circuit court because of incompetency.

When any chancellor is incompetent to try any cause in the court for which the chancellor is responsible, a circuit judge may hear and determine the cause as chancellor, for which purpose the clerk of the chancery court shall bring before the chancellor all the papers in the cause, and the necessary entries shall be made on the minutes of the chancery court, and signed by the circuit judge presiding.

Code 1858, § 3922 (deriv. Acts 1843-1844, ch. 126, § 1); Shan., § 5718; Code 1932, § 9904; T.C.A. (orig. ed), § 17-218; Acts 2012, ch. 789, § 4.

Amendments. The 2012 amendment substituted “a circuit judge may hear and determine the cause as chancellor” for “the chancellor may notify any one (1) of the circuit judges, whose duty it shall be at the next term of the circuit court of the county in which the incompetency exists, and while holding the court, to hear and determine the cause as chancellor”.

Effective Dates. Acts 2012, ch. 789, § 7. April 23, 2012.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 621.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Cited: Gordonsville Milling Co. v. Jones, 57 S.W. 630, 1900 Tenn. Ch. App. LEXIS 45 (1900).

17-2-113. Circuit judge acting as chancellor.

Any circuit judge may also during the sittings of a chancery court, upon notification of a cause in which the chancellor is incompetent, as provided in § 17-2-112, take the place of the chancellor on the bench and hear and determine the cause as chancellor, the necessary entry being made on the minutes of the court and signed by the circuit judge.

Code 1858, § 3923 (deriv. Acts 1843-1844, ch. 126, § 1; 1855-1856, ch. 24); Shan., § 5719; Code 1932, § 9905; T.C.A. (orig. ed.) § 17-219.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

NOTES TO DECISIONS

1. Notice to Defendant.

Defendant in a disbarment proceeding was not prejudiced because of failure to receive notice that circuit judges were to sit in interchange with chancellors who were disqualified because they had instituted the proceedings. State v. Bomer, 179 Tenn. 67, 162 S.W.2d 515, 1942 Tenn. LEXIS 7 (1942).

2. Two Judges Hearing Cause.

Where either of two circuit judges was qualified to try a disbarment proceeding by interchange, the fact that the two heard the case does not affect the merits of the controversy. State v. Bomer, 179 Tenn. 67, 162 S.W.2d 515, 1942 Tenn. LEXIS 7 (1942).

17-2-114. [Obsolete.]

Code Commission Notes.

Former § 17-2-114 (Code 1858, § 3926 (deriv. Acts 1857-1858, ch. 90, § 2); Shan., § 5723; mod. Code 1932, § 9909; impl. am. Acts 1978, ch. 934, § 36, T.C.A. (orig. ed.), § 17-220) was deleted as obsolete by the code commission in 1993.

17-2-115. Certification of incompetency to governor.

When any judge of any circuit court, criminal court, or chancellor, or judge or chancellor of any special court of equal dignity with circuit or chancery court, certifies to the governor that the judge or chancellor is incompetent to hold the judge's or chancellor's court, or to try any cause or causes pending in the judge's or chancellor's court, the governor shall appoint some person learned in the law and constitutionally qualified to discharge the duties of the office of judge or chancellor, to hold the court or try the cause or causes.

Acts 1871, ch. 128, § 4; Shan., § 5734; Code 1932, § 9923; T.C.A. (orig. ed.), § 17-221.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.12.

Law Reviews.

Constitutional Law — Necessary Qualifications for Judgeships, 30 Tenn. L. Rev. 640.

The Constitutional Policy That Judges Be Learned in the Law (Frederic S. Le Clercq), 47 Tenn. L. Rev. 689.

Cited: La Fever v. Ware, 211 Tenn. 393, 365 S.W.2d 44, 1963 Tenn. LEXIS 358 (1963); Leighton v. Henderson, 220 Tenn. 91, 414 S.W.2d 419, 1967 Tenn. LEXIS 392 (1967).

NOTES TO DECISIONS

1. Duration of Appointment.

Appointment continues in force until the cases that the special judge was appointed to try are finally determined. Low v. State, 111 Tenn. 81, 78 S.W. 110, 1903 Tenn. LEXIS 5 (1903).

17-2-116. Disability of judges or chancellors.

    1. When any of the judges of the circuit courts, criminal courts, other special courts or courts of general sessions, or any of the chancellors, is unable from sickness or other physical disability to attend and hold any of the courts at the time and place required by law, the governor shall appoint and commission a special judge who shall have the same qualifications as the regular judge to attend and hold such courts for and during the absence or disability of any such judges.
    2. If a judge or chancellor does not certify the disability to the governor, and the chief justice of the supreme court determines that the judge or chancellor has been and is so disabled as to prevent the judge or chancellor from carrying out the responsibilities and duties of the judge's or chancellor's office for a period of ninety (90) days or more, then the chief justice shall have the authority to certify the disability to the governor. The governor shall appoint and commission a special judge who shall have the same qualifications as the regular judge or chancellor to attend and hold court during the period of disability of any such judge or chancellor. The special judge shall serve until the chief justice certifies to the governor that the judge or chancellor is no longer disabled.
  1. In the event a judge or chancellor who is certified as disabled pursuant to this section subsequently dies or retires, any special judge or chancellor serving for the deceased or retired judge shall continue to serve until such time as the successor of the deceased or retired judge or chancellor is duly elected, qualified and installed in office in the manner provided by law, and may be a candidate for this office in the election.

Code 1858, § 3927 (deriv. Acts 1835-1836, ch. 68, §§ 1, 3); Shan., § 5724; Code 1932, § 9913; Acts 1941, ch. 28, § 1; C. Supp. 1950, § 9913; Acts 1959, ch. 150, § 1; 1972, ch. 532, § 1; impl. am. Acts 1978, ch. 934, § 36; T.C.A., (orig. ed.), § 17-222; Acts 1989, ch. 153, §§ 1, 2.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 622.

Tennessee Criminal Practice and Procedure (Raybin), § 24.12.

Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 2.

Law Reviews.

Constitutional Law — Necessary Qualifications for Judgeships, 30 Tenn. L. Rev. 640.

The Constitutional Policy That Judges Be Learned in the Law (Frederic S. Le Clercq), 47 Tenn. L. Rev. 689.

Attorney General Opinions. Effect of death of disabled judge on service of special judge, OAG 97-116 (9/02/97).

Cited: Bedford County Hospital v. County of Bedford, 42 Tenn. App. 569, 304 S.W.2d 697, 1957 Tenn. App. LEXIS 98 (Tenn. Ct. App. 1957); La Fever v. Ware, 211 Tenn. 393, 365 S.W.2d 44, 1963 Tenn. LEXIS 358 (1963); State v. Daniel, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 834 (Tenn. Crim. App. Oct. 30, 2006).

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 17-2-116(a)(1) does not violate the separation of powers provisions in Tenn. Const., art. II, §§ 1 and 2; the power to elect or to appoint a person to a public office is essentially a political power, and it is neither inherently legislative, executive, nor judicial. State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 1994 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1994).

T.C.A. § 17-2-116(a)(1) does not violate Tenn. Const., art. VII, § 2 or Tenn. Const., art. XI, § 17, since neither constitutional provision applies to the designation of temporary special general sessions court judges who substitute for but do not replace the incumbent judge. State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 1994 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1994).

The general language of Tenn. Const., art. VI, § 4 does not undermine Tenn. Const., art. VI, § 11's specific provision authorizing the general assembly to enact statutory procedures for selecting special judges, and T.C.A. § 17-2-116(a)(1) is entirely consistent with Tenn. Const., art. VI, § 11; therefore, judicial appointments conforming to the statute do not run afoul of Tenn. Const., art. VI, § 4. State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 1994 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1994).

2. Quo Warranto Proceedings.

Proceedings in quo warranto against temporary county judge appointed under this section was not a suit against the county or against such judge in his official capacity but was a suit against such person in his individual capacity and the county was not liable for legal fees incurred in the defense of such suit. State v. Stine, 200 Tenn. 561, 292 S.W.2d 771, 1956 Tenn. LEXIS 438 (1956).

3. Procedure Not Exclusive.

This procedure is not exclusive, but one judge may sit for another under § 17-2-201 without being commissioned by the governor to do so. In re Johnson, 277 F. Supp. 267, 1967 U.S. Dist. LEXIS 7463 (E.D. Tenn. 1967).

4. Compensation for Special General Session Judges.

No statute explicitly requires counties to compensate special general sessions court judges appointed in accordance with T.C.A. § 17-2-116(a)(1); this obligation, however, must necessarily be implied from the statutes creating the general sessions courts, providing for their funding, and governing the selection not only of regular general sessions judges but also of their temporary replacements. State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 1994 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1994).

Collateral References. 48 C.J.S. Judges § 101.

Substitution of judge in state criminal trial. 45 A.L.R.5th 591.

Judges 21.

17-2-117. Powers of special judges or chancellors.

  1. The person appointed and commissioned pursuant to § 17-2-116 shall have all the power and authority of the regular judge or chancellor in whose place the person is appointed, shall draw the same salary, have the same emoluments of office and shall continue to hold the courts and exercise the duties of the office, including the power to appoint a secretary at the same salary and under the same provisions as the regular judge or chancellor may have, which shall be in lieu of the secretarial help to which the regular judge or chancellor is entitled, until the regular judge recovers from the sickness or disability and appears on the first day of the term for the purposes of resuming the functions of judge or chancellor.
  2. Nothing in subsection (a) shall be construed to empower the special chancellor to appoint the clerks and masters of the chancery courts, which appointive power shall remain with the regular chancellor.

Code 1858, § 3928 (deriv. Acts 1835-1836, ch. 68, §§ 1, 3); Shan., § 5726; Code 1932, § 9915; Acts 1959, ch. 150, § 1; T.C.A. (orig. ed.), § 17-223.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 2.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Cited: Bedford County Hospital v. County of Bedford, 42 Tenn. App. 569, 304 S.W.2d 697, 1957 Tenn. App. LEXIS 98 (Tenn. Ct. App. 1957).

NOTES TO DECISIONS

1. Ordering Reference.

Under the provisions of this section and § 20-1401 (repealed) a special judge of the circuit had the authority to order a reference to the clerk returnable the following term to determine the amount defendant owed plaintiff in a suit to recover premiums paid on an insurance policy. Battle v. National Life & Acci. Ins. Co., 178 Tenn. 283, 157 S.W.2d 817, 1941 Tenn. LEXIS 56 (1942).

2. Signing Court Minutes.

Special judge may subsequently sign minutes inadvertently omitted to be signed, especially where the regular judge gives his consent. Spencer v. Armstrong, 59 Tenn. 707, 1874 Tenn. LEXIS 38 (1874).

Collateral References.

Substitution of judge in state criminal trial. 45 A.L.R.5th 591.

17-2-118. Substitute judges.

  1. If, for good cause, including, but not limited to, by reason of illness, physical incapacitation, vacation or absence from the city or judicial district on a matter related to the judge's judicial office, the judge of a state or county trial court of record is unable to hold court, the judge shall appoint a substitute judge to hold court, preside and adjudicate.
  2. A substitute judge shall possess all of the qualifications of a judge of the court in which the substitute is appointed.
  3. No substitute judge may be appointed for a period of more than three (3) days; provided, that the judge appointed pursuant to this section may finish any trial that is commenced during the period of appointment.
  4. A substitute judge appointed pursuant to this section shall have no authority to award fees except those that are statutory.
  5. A substitute judge shall not preside over a cause without a consent form signed by all litigants who are present at the beginning of the proceeding. The consent form shall plainly state that the substitute judge has not been duly elected by the citizens of the judicial district or appointed by the governor but has been appointed pursuant to this section. Further, the consent form shall include the name of the lawyer appointed as substitute judge, the judge of the court in which the substitute judge is sitting, the date for which the substitute judge was appointed and the reason for the regular judge's absence. The consent form shall be transmitted and maintained on file for public inspection at the administrative office of the courts in Nashville.
    1. Subsections (a)-(e) shall not apply where a judge finds it necessary to be absent from holding court and appoints as a substitute judge:
      1. A duly elected or appointed judge of any inferior court; or
      2. A full-time officer of the judicial system under the judge's supervision whose duty it is to perform judicial functions, such as a juvenile magistrate, a child support magistrate or clerk and master, who is a licensed attorney in good standing with the Tennessee supreme court. The judicial officer shall only serve as special judge in matters related to that officer's duties as a judicial officer.
    2. Notwithstanding subsections (a)-(e), a judge shall have the authority to appoint a substitute judge as provided in subdivision (f)(1).

Acts 1870, ch. 78, §§ 1, 3, 4; Shan., §§ 5730, 5732; mod. Code 1932, §§ 9919, 9921; T.C.A., (orig. ed.), § 17-225; modified; Acts 1996, ch. 943, § 1; 1999, ch. 23, § 2; 2009, ch. 235, § 1.

Compiler's Notes. Acts 2009, ch. 235, § 1 directed the code commission to change all references from “child support referee” to “child support magistrate” and all references from “juvenile referee” to “juvenile magistrate” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Amendments. The 2009 amendment substituted “child support magistrate” for “child support referee” and “juvenile magistrate” for “juvenile referee” in (f)(1)(B).

Effective Dates. Acts 2009, ch. 235, § 2. May 20, 2009.

Rule Reference. This section is referred to in Tenn. Sup. Ct. R. 11, § VII.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 623.

Tennessee Criminal Practice and Procedure (Raybin), § 24.12.

Tennessee Jurisprudence, 16  Tenn. Juris., Judges, §§ 22, 24.

Law Reviews.

Constitutional Law — Necessary Qualifications for Judgeships, 30 Tenn. L. Rev. 640.

Attorney General Opinions. Supreme Court has no authority to prohibit use of special judges, OAG 96-127 (11/12/96).

Application of limitations to retired judge, OAG 97-113 (8/14/97).

Consent form requirement not applicable to retired judge assigned under § 8-36-806, OAG 97-113 (8/14/97).

Compensation for clerk and master serving as substitute judge not authorized, OAG 99-087 (4/8/99).

Cited: Moore v. Love, 171 Tenn. 682, 107 S.W.2d 982, 1936 Tenn. LEXIS 101 (1937); La Fever v. Ware, 211 Tenn. 393, 365 S.W.2d 44, 1963 Tenn. LEXIS 358 (1963); State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980); In re Valle, 31 S.W.3d 566, 2000 Tenn. App. LEXIS 107 (Tenn. Ct. App. 2000); Dep't of Children's Servs. v. Sails (In re M.A.P.), — S.W.3d —, 2009 Tenn. App. LEXIS 431 (Tenn. Ct. App. July 10, 2009); State ex rel. Creighton v. Foster, — S.W.3d —, 2011 Tenn. App. LEXIS 173 (Tenn. Ct. App. Apr. 7, 2011).

NOTES TO DECISIONS

1. Constitutionality.

The statute is constitutional. Ligan v. State, 50 Tenn. 159, 1871 Tenn. LEXIS 82 (1871); Hundhausen v. U. S. Marine Fire Ins. Co., 52 Tenn. 702, 1871 Tenn. LEXIS 300 (1871); Halliburton v. Brooks, 66 Tenn. 318, 1874 Tenn. LEXIS 134 (1874); Low v. State, 111 Tenn. 81, 78 S.W. 110, 1903 Tenn. LEXIS 5 (1903).

Appointment of a juvenile court referee (now magistrate) as a special judge under T.C.A. § 17-2-118(f)(2) does not contravene the provision in Tenn. Const. art. VI, § 4 requiring that a judge be elected. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 2006 Tenn. App. LEXIS 156 (Tenn. Ct. App. 2006), appeal denied, In re A. B., — S.W.3d —, 2006 Tenn. LEXIS 543 (Tenn. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 537 (Tenn. 2006).

2. Validity of Appointment.

Where a local attorney was permitted to hear the case as a special judge in a termination of parental rights proceeding, the trial court did not follow the proper procedure for appointing a special judge; there was no evidence regarding whether the absence of the sitting judge was necessary, and the record was inadequate to support the attorney's authority to serve as a special judge. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 2006 Tenn. App. LEXIS 156 (Tenn. Ct. App. 2006), appeal denied, In re A. B., — S.W.3d —, 2006 Tenn. LEXIS 543 (Tenn. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 537 (Tenn. 2006).

Although the proper procedure might not have been followed because there was no order of reference in the record and no indication that the trial judge’s absence was necessary, a clerk and master was a de facto judge acting under the color of right and was fulfilling a role as a child support referee; thus, the master's 1999 child support order reducing the father's obligation was the operative order from which the child support arrearage should have been calculated and the trial court's November 2005 decision based on that order was affirmed. State ex rel. Young v. Fish, — S.W.3d —, 2007 Tenn. App. LEXIS 329 (Tenn. Ct. App. May 23, 2007).

Although a valid appointment order signed by someone other than the special judge was not contained in the record prior to a father's appeal, the court of appeals had to consider the merits of the appeal because the special judge acted with a good faith belief in her right to exercise authority; each order contained an explanation of the special judge's authority to preside, and neither party objected to her authority prior to the appeal. State ex rel. Rogers v. Lewis, — S.W.3d —, 2016 Tenn. App. LEXIS 781 (Tenn. Ct. App. Oct. 21, 2016).

3. Election of Judge.

Proper practice and record in an election of special judges to hold a term of court or to try a particular case, emphasizing the duties of the clerk in holding the election, making the proper record, and authenticating and verifying the same. Low v. State, 111 Tenn. 81, 78 S.W. 110, 1903 Tenn. LEXIS 5 (1903); Harness v. State, 126 Tenn. 365, 149 S.W. 911, 1912 Tenn. LEXIS 61 (1912) (but every variation from the proper practice in the election of special judges is not ground for reversal); Hamblin v. State, 126 Tenn. 394, 150 S.W. 89, 1912 Tenn. LEXIS 64 (1912).

4. —Record Entry.

Entry should be made as a part of the caption of the proceedings of the term of court showing failure of the regular judge to attend, the election held by the clerk, due election by a majority of the attorneys in attendance who are residents of this state, and that the attorney elected was in attendance and was such resident and possessed of the qualifications of a judge. Low v. State, 111 Tenn. 81, 78 S.W. 110, 1903 Tenn. LEXIS 5 (1903).

The entry, when there is an election of a special judge to try a particular case, should be made under the case style of that cause and should show that the one elected did not vote. Low v. State, 111 Tenn. 81, 78 S.W. 110, 1903 Tenn. LEXIS 5 (1903).

5. —Deputy Clerk Holding Election.

A deputy clerk may hold an election for a special judge of his court. Harris v. State, 100 Tenn. 287, 45 S.W. 438, 1897 Tenn. LEXIS 114 (1897).

6. —Majority of Bar Declining to Vote.

The election of a member of the bar as special judge is valid, where the majority of the bar had an opportunity to vote, but declined to do so, and the election was ordered and conducted in the manner prescribed by law. McLean v. State, 1 Shannon's Cases 478 (1875).

7. Period of Service of Special Judge.

The authority and jurisdiction of a special judge, elected by the attorneys present, expires with the adjournment of the term of court at which he was elected, and a conviction of crime at a trial held before him at a subsequent term is void. Low v. State, 111 Tenn. 81, 78 S.W. 110, 1903 Tenn. LEXIS 5 (1903); Harness v. State, 126 Tenn. 365, 149 S.W. 911, 1912 Tenn. LEXIS 61 (1912).

Special judge, elected to preside during the absence of the regular judge, possesses all the powers of the latter during the term of court for which he is elected. Holt v. State, 160 Tenn. 366, 24 S.W.2d 886, 1929 Tenn. LEXIS 115 (1930).

A special judge selected for the occasion, under this section, strictly speaking, serves only during the particular term of court during which he was elected. Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 1929 Tenn. LEXIS 55, 71 A.L.R. 830 (1930).

If a trial judge is unable to interchange or obtain assistance from another presiding judge or the Tennessee supreme court, and therefore, appoints the clerk and master or another judicial officer, the order of appointment should be either for a definite period of time or for a specific case. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000).

8. —“For the Occasion” — Term Construed.

This phrase means the condition produced by the exigency, such as the illness of the regular judge. Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 1929 Tenn. LEXIS 55, 71 A.L.R. 830 (1930).

9. Powers of Special Judge.

Election of special judge to serve during absence of regular judge carries with it all the powers and authority of the regular judge. Holt v. State, 160 Tenn. 366, 24 S.W.2d 886, 1929 Tenn. LEXIS 115 (1930); Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 1929 Tenn. LEXIS 55, 71 A.L.R. 830 (1930).

10. —Criminal and Civil.

A special judge, selected by the members of the bar, at an election held by the clerk in conformity to the statute, to preside in the absence of the regular judge, may try and dispose of criminal, including capital cases, as well as civil cases. Harris v. State, 100 Tenn. 287, 45 S.W. 438, 1897 Tenn. LEXIS 114 (1897); Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 1929 Tenn. LEXIS 55, 71 A.L.R. 830 (1930).

In a termination of parental rights proceeding, a local attorney was permitted to hear the case as a special judge. The trial court did not follow the proper procedure for appointing a special judge; there was no evidence regarding whether the absence of the sitting judge was necessary, and the record was inadequate to support the attorney's authority to serve as a special judge. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 2006 Tenn. App. LEXIS 156 (Tenn. Ct. App. 2006), appeal denied, In re A. B., — S.W.3d —, 2006 Tenn. LEXIS 543 (Tenn. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 537 (Tenn. 2006).

Because the mother raised no objection, prior to or during trial, to an attorney presiding as a special judge, she waived her argument challenging his authority to preside over the termination of parental rights proceedings as a special judge. Furthermore, the record contained no evidence that the attorney acted other than in the good faith belief of his right to act as a special judge in the case; thus, the attorney served as a de facto judge and the parties were bound by his acts. In re Marterrio H., — S.W.3d —, 2017 Tenn. App. LEXIS 236 (Tenn. Ct. App. Apr. 12, 2017).

11. —Holdover Status.

There is no distinction between the holdover status of a regular and a special judge. Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 1929 Tenn. LEXIS 55, 71 A.L.R. 830 (1930).

12. Compensation.

No compensation is provided by law for one who serves as a judge pro tempore under the provisions of this section. Waters v. State, 583 S.W.2d 756, 1979 Tenn. LEXIS 452 (Tenn. 1979).

13. Absence of Judge.

A judge may not use mere convenience as a basis for being absent from holding court; “necessary” as used in T.C.A. § 17-2-118(f) and T.C.A. § 17-1-122 should be understood in a restrictive sense, i.e., indispensable as opposed to a more liberal construction, i.e., convenient. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000).

A trial judge should appoint a clerk and master to act as a special/substitute judge in the judge's absence only if the trial judge determines it is not possible either to interchange pursuant to T.C.A. § 17-2-202, or to obtain assistance from another presiding judge or from the Tennessee supreme court pursuant to T.C.A. § 16-2-509(e). Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000).

In a tax case, a clerk and master lacked authority to enter summary judgment in favor of the Tennessee commissioner of revenue under T.C.A. § 17-2-118(a), (f)(2) because the clerk and master was not appointed or ordered to sit as a judge on the date at issue, and the requirement for exploring interchange was not satisfied where a chancellor was out of town; procedures for appointing a substitute judge were mandatory, and to hold otherwise would have rendered Tenn. Sup. Ct. R. 10, Canon 3A and Ferrell v. Cigna Property & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000), meaningless. Maxwell Med., Inc. v. Chumley, 282 S.W.3d 893, 2008 Tenn. App. LEXIS 542 (Tenn. Ct. App. Sept. 22, 2008).

Mother was correct that a referee (now magistrate) did not have authority to hear a parental termination rights case as a special judge where there was no order appointing him as a special judge and no evidence that the trial judge's absence was necessary; as a result, there was no evidence that the trial court followed T.C.A. § 16-15-209 and T.C.A. § 17-2-118. State Dep't of Children's Servs. v. F.R.G., — S.W.3d —, 2007 Tenn. App. LEXIS 87 (Tenn. Ct. App. Feb. 16, 2007), appeal denied, State v. F. R. G., — S.W.3d —, 2007 Tenn. LEXIS 514 (Tenn. May 21, 2007).

Collateral References. 48 C.J.S. Judges § 101.

Construction and validity of state provisions governing designation of substitute, pro tempore, or special judge. 97 A.L.R.5th 537.

17-2-119. Contested elections — Temporary judge.

The governor shall appoint a temporary judge, chancellor or district attorney general in all cases where a contest arises in the election of any of those officers, and they shall hold the offices, and have all the powers and jurisdiction pertaining to the offices, until the contest is judicially determined and the regularly elected officers are duly qualified and commissioned; and they are clothed with the same power, and shall receive the same compensation, as is allowed the officer in other cases, to be paid out of the state treasury upon a warrant of the commissioner of finance and administration.

Acts 1870-1871, ch. 73; Shan., § 5733; Code 1932, § 9922; impl. am. Acts 1937, ch. 33, § 24; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 17-226; modified.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 623.

Tennessee Jurisprudence, 16 Tenn. Juris., Judges, §§ 12, 22; 21 Tenn. Juris., Public Officers, § 5.

NOTES TO DECISIONS

1. Constitutionality.

The statute does not violate any constitutional right of the officer, whose term is expiring, to holdover, and is valid. State ex rel. Barham v. Graham, 161 Tenn. 557, 30 S.W.2d 274, 1929 Tenn. LEXIS 66 (1930).

2. Oath Not Required.

A special judge appointed under this section is not required to qualify by taking the oath before the clerk of the court, as prescribed by § 17-2-120 which is not even exclusive, but is for mere convenience, in that particular case; and an injunction against his acting, based on this ground, is unwarranted. Sanders v. Metcalf, 1 Cooper's Tenn. Ch. 419 (1873).

3. Compensation of Temporary Judge.

Temporary judge's compensation is in addition to that of the successful contestant. Graham v. England, 154 Tenn. 435, 288 S.W. 728, 1926 Tenn. LEXIS 140 (1926).

The same compensation is payable to the temporary judge that is payable to a regular judge. Graham v. England, 154 Tenn. 435, 288 S.W. 728, 1926 Tenn. LEXIS 140 (1926).

4. —Successful Party — Beginning Date of Salary.

Salary follows title to office, and the successful party draws full salary from the beginning of the term for which he was elected. State ex rel. Barham v. Graham, 161 Tenn. 557, 30 S.W.2d 274, 1929 Tenn. LEXIS 66 (1930).

5. —Predecessor Without Right to Salary.

A judge, apparently defeated for reelection, where a temporary judge is appointed to serve, is not entitled to salary for the period of the contest. State ex rel. Barham v. Graham, 161 Tenn. 557, 30 S.W.2d 274, 1929 Tenn. LEXIS 66 (1930).

6. Disinterested Incumbent — Right to Holdover.

Upon a contest for the office of county judge an incumbent, not involved in the election, was entitled to holdover under Tenn. Const., art. VII, § 5, until contest was decided, and until the qualification of his successor. The power of the governor to appoint one to serve pending contest did not extend to such a case. Morrison v. Gower, 154 Tenn. 624, 288 S.W. 731, 1926 Tenn. LEXIS 161 (1926).

Collateral References. 48 C.J.S. Judges §§ 31, 32.

Elections 273, 285(4), 305(6).

17-2-120. Oath of special judge.

Every special judge, before entering on the duties of the judge's appointment, shall take an oath before the clerk of the court to support the constitution of the United States and the constitution of Tennessee, and also the following oath of office: “I, A B, solemnly swear that I will administer justice without respect to persons, and do equal rights to the poor and the rich, and that I will faithfully and impartially discharge all the duties incumbent upon me as a judge to the best of my abilities.”

Acts 1870, ch. 78, § 2; Shan., § 5731; Code 1932, § 9920; T.C.A. (orig. ed.), § 17-227.

Cross-References. Oaths of judges in general, § 17-1-104.

Rule Reference. This section is referred to in Tenn. Sup. Ct. R. 11, § VII.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judges, §§ 22, 24.

NOTES TO DECISIONS

1. Dueling Oath.

Failure of special judge to take the dueling oath, where he has taken oath to “administer justice without respect to persons, and do equal rights to the poor and rich,” etc., is no ground for reversal, because such failure does not affect the merits. Harness v. State, 126 Tenn. 365, 149 S.W. 911, 1912 Tenn. LEXIS 61 (1912).

Collateral References. 46 Am. Jur. 2d Judges § 103.

48 C.J.S. Judges § 100.

Judges 5.

17-2-121. Retired or former judges in certain civil cases — Courtrooms — Process — Manner of trial.

  1. If the trial of a civil case is expected to be complex, lengthy or the litigants, for any reason, desire the matter to be disposed of in an expeditious manner, the litigants may, upon joint motion of all parties to the action and with the consent of the appropriate judge, agree to employ a retired or former judge to hear the case.
  2. The administrative director of the courts shall compile a list of all retired or former Tennessee trial level judges who are willing to sit in special cases pursuant to subsection (a) and the particular expertise of each judge, if any. Upon compiling the list, the administrative director of the courts shall distribute the list to every active trial level judge with civil jurisdiction in this state.
  3. When the litigants in a civil case agree to employ a retired or former judge pursuant to subsection (a), they shall approach the judge to whom the case was originally assigned. Upon explaining the nature of the litigation, the judge shall give the parties the names of three (3) retired or former judges available to hear the case. If three (3) retired or former judges are not available, the judge shall give them the names of the judges who are available. Where possible, the judge shall match the expertise of the retired or former judge to the particular case in question.
  4. It shall be the duty of the litigants to decide which retired or former judge to contact, contact the judge, and make all necessary arrangements for the place, date and time of the trial. It shall also be the responsibility of the litigants to compensate the retired or former judge in accordance with § 17-2-106. The clerks and other courthouse officials shall cooperate in helping the litigants find a suitable courtroom for the trial of the case. If no courtroom is available, the case may be tried in any location agreeable to the litigants and retired or former judge.
  5. Process, subpoenas and all other matters relating to the trial of the case shall be governed by the Tennessee rules of civil procedure. The case shall be tried without a jury and in the same manner as other civil cases.
  6. Upon the conclusion of the trial, the retired or former judge shall submit the judge's finding to the judge of the court to which the case was originally assigned. The finding of the retired or former judge shall become the finding of the court and judgment may be entered thereon in the same manner as if the case had been tried by that court. The finding of the retired or former judge and the judgment of the court may be appealed in the same manner as in any other civil case and shall be governed by the Tennessee rules of appellate procedure.

Acts 1984, ch. 894, § 1; 1993, ch. 66, § 31.

17-2-122. Failure of judge to attend — Selection of special judge.

  1. Notwithstanding § 16-15-209 or § 17-2-109 or any other relevant provision to the contrary, a judge shall have the authority to appoint a special judge as provided in this section.
  2. Sections 16-15-209 and 17-2-109 and any other relevant provision shall not apply where a judge finds it necessary to be absent from holding court and appoints as a substitute judge an officer of the judicial system under the judge's supervision whose duty it is to perform judicial functions, such as a juvenile magistrate, a child support magistrate or clerk and master, who is a licensed attorney in good standing with the Tennessee supreme court. The judicial officer shall only serve as special judge in matters related to their duties as judicial officer.

Acts 1997, ch. 473, § 6; 2009, ch. 235, § 1.

Compiler's Notes. Acts 2009, ch. 235, § 1 directed the code commission to change all references from “child support referee” to “child support magistrate” and all references from “juvenile referee” to “juvenile magistrate” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Amendments. The 2009 amendment substituted “child support magistrate” for “child support referee” and “juvenile magistrate” for “juvenile referee” in (b).

Effective Dates. Acts 2009, ch. 235, § 2. May 20, 2009.

Attorney General Opinions. Compensation for clerk and master serving as substitute judge not authorized, OAG 99-087 (4/8/99).

Cited: Fye v. Kennedy, 991 S.W.2d 754, 1998 Tenn. App. LEXIS 411 (Tenn. Ct. App. 1998); State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 2006 Tenn. App. LEXIS 156 (Tenn. Ct. App. 2006); Dep't of Children's Servs. v. Sails (In re M.A.P.), — S.W.3d —, 2009 Tenn. App. LEXIS 431 (Tenn. Ct. App. July 10, 2009); Wolfe v. Duckhorn (in re J.G.H.), — S.W.3d —, 2009 Tenn. App. LEXIS 551 (Tenn. Ct. App. Aug. 17, 2009).

NOTES TO DECISIONS

1. Construction.

A judge may not use mere convenience as a basis for being absent from holding court; “necessary” as used in T.C.A. §§ 17-1-118 and 17-2-122(b) should be understood in a restrictive sense, i.e., indispensable as opposed to a more liberal construction, i.e., convenient. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000).

A trial judge should appoint a clerk and master to act as a special/substitute judge in the judge's absence only if the trial judge determines it is not possible either to interchange pursuant to T.C.A. § 17-2-202, or to obtain assistance from another presiding judge or from the Tennessee supreme court pursuant to T.C.A. § 16-2-509(e). Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000).

2. Period of Service of Special Judge.

If a trial judge is unable to interchange or obtain assistance from another presiding judge or the Tennessee supreme court and therefore appoints the clerk and master or another judicial officer, the order of appointment should be either for a definite period of time or for a specific case. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000).

3. Validity of Orders.

In a tax case, a clerk and master lacked authority to enter summary judgment in favor of the Tennessee commissioner of revenue under T.C.A. § 17-2-118(a), (f)(2) because the clerk and master was not appointed or ordered to sit as a judge on the date at issue, and the requirement for exploring interchange was not satisfied where a chancellor was out of town; procedures for appointing a substitute judge were mandatory, and to hold otherwise would have rendered Tenn. Sup. Ct. R. 10, Canon 3A and Ferrell v. Cigna Property & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000), meaningless. Maxwell Med., Inc. v. Chumley, 282 S.W.3d 893, 2008 Tenn. App. LEXIS 542 (Tenn. Ct. App. Sept. 22, 2008).

Although the proper procedure might not have been followed because there was no order of reference in the record and no indication that the trial judge’s absence was necessary, a clerk and master was a de facto judge acting under the color of right and was fulfilling a role as a child support referee; thus, the master's 1999 child support order reducing the father's obligation was the operative order from which the child support arrearage should have been calculated and the trial court's November 2005 decision based on that order was affirmed. State ex rel. Young v. Fish, — S.W.3d —, 2007 Tenn. App. LEXIS 329 (Tenn. Ct. App. May 23, 2007).

In a termination of parental rights case, where there was no objection by any party to the special judge's authority to preside over the matter in the absence of a valid appointment order, the court held that the special judge was acting as a de facto judge and therefore the judgment was final and valid. In re Catherine J., — S.W.3d —, 2018 Tenn. App. LEXIS 54 (Tenn. Ct. App. Jan. 30, 2018).

4. Authority.

Although a valid appointment order signed by someone other than the special judge was not contained in the record prior to a father's appeal, the court of appeals had to consider the merits of the appeal because the special judge acted with a good faith belief in her right to exercise authority; each order contained an explanation of the special judge's authority to preside, and neither party objected to her authority prior to the appeal. State ex rel. Rogers v. Lewis, — S.W.3d —, 2016 Tenn. App. LEXIS 781 (Tenn. Ct. App. Oct. 21, 2016).

Because the mother raised no objection, prior to or during trial, to an attorney presiding as a special judge, she waived her argument challenging his authority to preside over the termination of parental rights proceedings as a special judge. Furthermore, the record contained no evidence that the attorney acted other than in the good faith belief of his right to act as a special judge in the case; thus, the attorney served as a de facto judge and the parties were bound by his acts. In re Marterrio H., — S.W.3d —, 2017 Tenn. App. LEXIS 236 (Tenn. Ct. App. Apr. 12, 2017).

17-2-123. Full-time master in certain counties.

    1. Notwithstanding any other law to the contrary, in any county having a metropolitan form of government and having a population of more than five hundred thousand (500,000), according to the 1990 federal census or any subsequent federal census, the circuit court judges of such county may appoint a full-time master to serve as a judicial officer in the absence of any such judges.
    2. A master appointed pursuant to subdivision (a)(1) shall be an attorney licensed to practice law by this state and in good standing with the board of professional responsibility.
    3. The compensation for a master appointed pursuant to this section shall be fixed by the presiding judge of the judicial district and shall be paid from any fund appropriated for such purpose by the county governing body.
    4. The master shall have all the powers specified in § 17-2-118 and the powers granted to masters by Tenn. R. Civ. P. 53.
    1. Notwithstanding any other law to the contrary, in any county having a metropolitan form of government and a population of more than five hundred thousand (500,000), according to the 1990 federal census or any subsequent federal census, the circuit courts exercising domestic or probate jurisdiction may appoint one (1) or more suitable persons to act as masters at the pleasure of the judge. A master shall be a member of the bar in good standing and shall hold office at the pleasure of the judge. The compensation of a master shall be fixed by the judge with approval of the county legislative body or the pertinent governing body, and paid from public funds.
    2. Provided the respective circuit court has jurisdiction in the manner provided for the hearing of cases by the court, the judge or judges for whom the master serves may direct that the master hear in the first instance the following types of cases:
      1. Orders of protection (both hearings and reviews);
      2. Motions to amend or alter orders of protection;
      3. Child support petitions;
      4. Signing appearance orders for child support cases;
      5. Signing and hearing show cause orders for temporary support and parenting time;
      6. Signing attachment orders; and
      7. Temporary parenting plans.
    3. A master has the same authority as the judge to issue any and all process necessary in the types of cases the master is authorized by subdivision (b)(2) to hear. The master in the conduct of authorized proceedings has the powers of a trial judge.
    4. Upon the conclusion of the hearing in each case, the master shall transmit to the judge all papers relating to the case, together with the master's findings and recommendations in writing.
    5. Any party may, within five (5) days thereafter, excluding nonjudicial days, file a request with the court for hearing by the appropriate circuit court judge. The judge may, on the judge's own motion, order a rehearing of any matter heard before a master, and shall allow a hearing if a request for such hearing is filed as herein prescribed. Unless the judge orders otherwise, the order of the master shall be the decree of the court pending a rehearing.
    6. Any appeal from the master to the judge from a final order shall be tried de novo by the judge.
    7. In case no hearing of a final order before the judge is requested, or when the right to a hearing is waived, the findings and recommendations of the master become the decree of the court when confirmed by an order of the judge. The final order of the court is, in any event, proof of such confirmation, and also of the fact that the matter was duly referred to the master.

Acts 1998, ch. 880, § 1; 2010, ch. 845, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Amendments. The 2010 amendment redesignated former (a)-(d) as present (a)(1)-(4), respectively; substituted “subdivision (a)(1)” for “subsection (a)” in (a)(2); and added (b).

Effective Dates. Acts 2010, ch. 845, § 2. April 30, 2010.

Part 2
Interchange

17-2-201. Purpose.

The purpose of this part is to ensure that existing judicial resources are utilized to the fullest extent and that no additional judicial resources are created until uniform caseload statistics are developed that will establish a priority for the need for additional judges.

Acts 1997, ch. 430, § 1.

Compiler's Notes. Former § 17-2-201 (Code 1858, § 3916 (deriv. Acts 1835-1836, ch. 5, § 2); Shan., § 5709; mod. Code 1932, § 9895; T.C.A. (orig. ed.), § 17-207), concerning interchange by circuit judges, was repealed by Acts 1997, ch. 430, § 1.

Rule Reference. This section is referred to in Tenn. Sup. Ct. R. 11, § VII.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.11.

Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 9.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Cited: Martin v. Dowling, 204 Tenn. 34, 315 S.W.2d 397, 1958 Tenn. LEXIS 243 (1958); Crawford v. Gilpatrick, 646 S.W.2d 433, 1983 Tenn. LEXIS 608 (Tenn. 1983); Ready Mix, USA, LLC v. Jefferson County, 380 S.W.3d 52, 2012 Tenn. LEXIS 621 (Tenn. Aug. 30, 2012).

NOTES TO DECISIONS

Decisions Under Prior Law

1. Record Showing Interchange — Necessity.

When the judge of one circuit holds court in another, it is not necessary for the caption of the record of the court so held to show how it came to be held by the judge of another circuit. Cornwell v. State, 8 Tenn. 147, 1827 Tenn. LEXIS 26 (1827).

2. Notice to Defendant — Necessity.

Defendant in a disbarment proceeding was not prejudiced because of failure to receive notice that circuit judges were to sit in interchange with chancellors who were disqualified because they had instituted the proceedings. State v. Bomer, 179 Tenn. 67, 162 S.W.2d 515, 1942 Tenn. LEXIS 7 (1942).

3. Power of Interchange.

4. —Generally.

Judges may interchange with each other whenever the incompetency of the judge to try a particular case or cases, or personal convenience, may require. Such interchange may be for the entire circuit, or a single term, or part thereof, or for a special case. Elms v. State, 29 Tenn. 128, 1849 Tenn. LEXIS 25 (1849); Dupuis v. Hand, 814 S.W.2d 340, 1991 Tenn. LEXIS 168 (Tenn. 1991).

It is not improper for a judge of one circuit to sit by interchange for a judge of another circuit and there is no requirement that application be made to the chief justice for assignment of a judge to the case. State ex rel. Stall v. Knoxville, 211 Tenn. 271, 364 S.W.2d 898, 1962 Tenn. LEXIS 357 (1962), cert. denied, Tennessee ex rel. Stall v. Knoxville, 372 U.S. 914, 83 S. Ct. 728, 9 L. Ed. 2d 721, 1963 U.S. LEXIS 2161 (1963); Dupuis v. Hand, 814 S.W.2d 340, 1991 Tenn. LEXIS 168 (Tenn. 1991).

Judges sitting for others under this section need not be commissioned by the governor under § 17-2-116. In re Johnson, 277 F. Supp. 267, 1967 U.S. Dist. LEXIS 7463 (E.D. Tenn. 1967).

An objection to a judge's competence cannot be made for the first time on appeal; the objection should come before trial is had on the merits. Dupuis v. Hand, 814 S.W.2d 340, 1991 Tenn. LEXIS 168 (Tenn. 1991).

5. —Interchange with Chancellor.

Judge, sitting by interchange for chancellor, could lawfully exercise all powers of the chancellor. Lieberman, Loveman & Cohn v. Knight, 153 Tenn. 268, 283 S.W. 450, 1925 Tenn. LEXIS 28 (1926).

6. —Circuit Judge — Exchange with Special Criminal Judge.

Although the statutes do not, in express words, say that a circuit judge may interchange with the judge of a special criminal court, this is fairly implied. Stuart v. State, 60 Tenn. 178, 1873 Tenn. LEXIS 432 (1873).

7. —Circuit Judge — Interchange with Criminal Court Judge.

A county probate court had jurisdiction to prosecute for driving under the influence and the circuit judge held authority to preside under this section. State v. Coolidge, 915 S.W.2d 820, 1995 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. 1995), overruled, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998).

Collateral References. 48 C.J.S. Judges § 58.

17-2-202. Duty to interchange.

  1. Each state trial court judge has an affirmative duty to interchange if:
    1. A judge has died or is unable to hold court;
    2. Two (2) or more judges have agreed to a mutually convenient interchange; or
    3. [Deleted by 2012 amendment.]
    4. The chief justice of the supreme court has assigned by order a judge to another court pursuant to Tenn. Sup. Ct. R. 11.
  2. A failure to comply with an interchange order of the supreme court is a judicial offense under § 17-5-301(j)(1)(B). The chief justice shall report such failure to comply immediately to the presiding judge of the board of judicial conduct. The clerk of the supreme court shall maintain such reports for public inspection.

Acts 1859-1860, ch. 105, § 3; Shan., § 5713; mod. Code 1932, § 9899; T.C.A. (orig. ed.), § 17-208; Acts 1997, ch. 430, § 1; 2012, ch. 789, § 5; 2012, ch. 819, § 4.

Compiler's Notes. Acts 2012, ch. 819, § 5 provided that, in order to carry out its functions, duties, and responsibilities maintained under the provisions of the act, which amended subsection (b), the court of the judiciary shall retain and have the authority to exercise any and all of its powers and duties existing under title 17 prior to enactment of the act, including, but not limited to, the power to subpoena, the power to take evidence, and the power to examine. Upon the termination of the court of the judiciary, the board of judicial conduct is expressly granted the same powers and duties as set forth above for the court of the judiciary in order to carry out its responsibilities established this chapter. The board of judicial conduct also is expressly authorized to continue any preliminary investigations, full investigations, and/or trials scheduled or in progress by the court of the judiciary at the time of termination of the court of the judiciary. This authorization includes the right to use any evidence obtained or taken by the court of the judiciary without the need to obtain again or retake any such evidence, including, but not limited to, prior issued subpoenas.

Acts 2012, ch. 819, § 6 provided that: (a) All rules of the court of the judiciary in effect on July 1, 2012, shall remain in full force and effect as rules of the board of judicial conduct until modified or repealed by the board of judicial conduct.

The initial rules adopted by the board of judicial conduct shall serve as the temporary rules of the board. The temporary rules shall remain in effect until such time as approved or not approved by the general assembly, with the board's chairperson presenting the rules, during the first session of the One Hundred Eighth General Assembly using the same procedure set out in § 16-3-404 for rules of court. If approved, the rules shall become the permanent rules of the board. All subsequent modifications or additions to such rules shall be approved by the general assembly in accordance with the procedures set forth in  § 16-3-404.

Amendments. The 2012 amendment by ch. 789 deleted (a)(3) which read: “The judge is incompetent under § 17-2-101;”.

The 2012 amendment by ch. 819 substituted “board of judicial conduct” for “court of the judiciary” in (b).

Effective Dates. Acts 2012, ch. 789, § 7. April 23, 2012.

Acts 2012, ch. 819, § 8. July 1, 2012; provided, that, for the purposes of appointing the members of the board of judicial conduct created by the act, the act shall take effect April 25, 2012.

Cross-References. Change of venue in chancery, § 21-1-501.

Rule Reference. This section is referred to in Tenn. Sup. Ct. R. 11, § VII.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 624.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Attorney General Opinions. A private act proposing to authorize a general sessions judge to interchange with a chancellor in a particular county should articulate the reasons why such authority is necessary or convenient to the operation of the judicial system in the affected county, as such an act would violate the constitution absent a rational basis for suspending the general law with regard to interchange in the particular county, OAG 02-074 (6/12/02).

Cited: State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000); State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 2006 Tenn. App. LEXIS 156 (Tenn. Ct. App. 2006); Ready Mix, USA, LLC v. Jefferson County, 380 S.W.3d 52, 2012 Tenn. LEXIS 621 (Tenn. Aug. 30, 2012).

NOTES TO DECISIONS

1. Jurisdiction to Try Attorney.

Trial judge had jurisdiction to try appellant attorney for contempt under the interchange provisions; because the appellant's charges of contempt implicated two judges in the first judicial district as witnesses, all the judges of the first judicial district recused themselves from hearing the case, and accordingly, the presiding judge of the first judicial district requested a judge from the second judicial district to hear the contempt proceedings. Wilson v. Wilson (In re Cowan), 877 S.W.2d 271, 1993 Tenn. App. LEXIS 814 (Tenn. Ct. App. 1993) (decided prior to 1997 amendment).

2. Appointment of Special Judge.

A trial judge should appoint a clerk and master to act as a special/substitute judge in the judge's absence only if the trial judge determines it is not possible either to interchange pursuant to T.C.A. § 17-2-202, or to obtain assistance from another presiding judge or from the Tennessee supreme court pursuant to T.C.A. § 16-2-509(e). If a trial judge is unable to interchange or obtain assistance from another presiding judge or the Tennessee supreme court, and therefore, appoints the clerk and master or another judicial officer, the order of appointment should be either for a definite period of time or for a specific case. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000).

In a tax case, a clerk and master lacked authority to enter summary judgment in favor of the Tennessee commissioner of revenue under T.C.A. § 17-2-118(a), (f)(2) because the clerk and master was not appointed or ordered to sit as a judge on the date at issue, and the requirement for exploring interchange was not satisfied where a chancellor was out of town; procedures for appointing a substitute judge were mandatory, and to hold otherwise would have rendered Tenn. Sup. Ct. R. 10, Canon 3A and Ferrell v. Cigna Property & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000), meaningless. Maxwell Med., Inc. v. Chumley, 282 S.W.3d 893, 2008 Tenn. App. LEXIS 542 (Tenn. Ct. App. Sept. 22, 2008).

Although a valid appointment order signed by someone other than the special judge was not contained in the record prior to a father's appeal, the court of appeals had to consider the merits of the appeal because the special judge acted with a good faith belief in her right to exercise authority; each order contained an explanation of the special judge's authority to preside, and neither party objected to her authority prior to the appeal. State ex rel. Rogers v. Lewis, — S.W.3d —, 2016 Tenn. App. LEXIS 781 (Tenn. Ct. App. Oct. 21, 2016).

3. Judge Authorized.

Circuit court erred in modifying chancery court's permanent parenting plan where the record was devoid of any evidence showing that entry of modified permanent parenting plan was necessary to effectuate mother's order of protection against father because although circuit court would have had jurisdiction under T.C.A. § 16-10-108 concurrent with chancery court, jurisdiction remained in chancery court unless and until jurisdiction was properly vested in another court. Swan v. Swan, — S.W.3d —, 2008 Tenn. App. LEXIS 552 (Tenn. Ct. App. Sept. 24, 2008).

4. Judge De Facto.

In a mother's petition for an order of protection, while the trial judge, a general sessions judge from another county, was without actual authority to act as a chancellor by interchange under T.C.A. § 17-2-202, the issue of the judge's appointment was waived because there was no objection thereto and the judge acted as a judge de facto. Jackson v. Lanphere, — S.W.3d —, 2011 Tenn. App. LEXIS 441 (Tenn. Ct. App. Aug. 12, 2011), aff'd, — S.W.3d —, 2012 Tenn. App. LEXIS 391 (Tenn. Ct. App. June 15, 2012).

Collateral References.

Disqualification of original trial judge to sit on retrial after reversal or mistrial. 60 A.L.R.3d 176.

Intervenor's right to disqualify judge. 92 A.L.R.2d 1110.

Prohibition as appropriate remedy to prevent allegedly disqualified judge from proceeding with case. 92 A.L.R.2d 306.

17-2-203 — 17-2-205. [Repealed.]

Compiler's Notes. Former §§ 17-2-20317-2-205 (Code 1858, § 3917 (deriv. Acts 1835-1836, ch. 20, § 2); Acts 1859-1860, ch. 105, § 2; Acts 1870-1871, ch. 34, § 1; Shan., §§ 5710, 5712, 5714; Code 1932, §§ 9896, 9898, 9900; Acts 1971, ch. 344, § 1; T.C.A. (orig. ed.), §§ 17-209 — 17-211), concerning interchange by chancellors and criminal court judges, were repealed by Acts 1997, ch. 430, § 1.

17-2-206. Powers on interchange.

In all such cases, the judge or chancellor holding court in the circuit or division of another, shall have the same power and jurisdiction as the judge or chancellor in whose place the judge or chancellor is acting.

Code 1858, § 3918 (deriv. Acts 1835-1836, ch. 20, § 2); Shan., § 5711; Code 1932, § 9897; T.C.A. (orig. ed.), § 17-212.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Cited: In re Estate of Nelson, — S.W.3d —, 2007 Tenn. App. LEXIS 147 (Tenn. Ct. App. Mar. 22, 2007); Jackson v. Lanphere, — S.W.3d —, 2011 Tenn. App. LEXIS 441 (Tenn. Ct. App. Aug. 12, 2011).

NOTES TO DECISIONS

1. Appointing Special Term.

The judge presiding by interchange has the same powers and jurisdiction as the regular judge, were he presiding, and may appoint a special term, the holding of which will be valid. Elms v. State, 29 Tenn. 128, 1849 Tenn. LEXIS 25 (1849).

2. Pro Confesso Decree.

A judge, sitting by interchange with chancellor after chancellor adjourned court, had jurisdiction to enter decree pro confesso. Lieberman, Loveman & Cohn v. Knight, 153 Tenn. 268, 283 S.W. 450, 1925 Tenn. LEXIS 28 (1926).

3. Concurrent Authority.

Where first judge in case recused himself after ruling on several preliminary matters, a second judge sat by interchange until his death, a third judge was appointed by governor as successor, with the consent of both parties, and a fourth judge, unbeknownst to the parties, was also appointed by the chief justice to replace the second judge, both the third and fourth judges had concurrent authority by interchange and designation respectively, to preside over the case. Dupuis v. Hand, 814 S.W.2d 340, 1991 Tenn. LEXIS 168 (Tenn. 1991).

4. Right to Challenge Authority.

Defendant's appearance in judge's court without objection, was a waiver of the defendant's right to challenge judge's authority. Dupuis v. Hand, 814 S.W.2d 340, 1991 Tenn. LEXIS 168 (Tenn. 1991).

17-2-207. Interchange by special judges.

A person appointed and commissioned under §§ 17-2-116 and 17-2-117 shall have the same power to interchange with other judges and chancellors as the regular official in whose place the person is appointed and commissioned to act.

Code 1858, § 3929; Shan., § 5727; Code 1932, § 9916; Acts 1959, ch. 150, § 1; T.C.A. (orig. ed.), § 17-224.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

17-2-208. Interchange of general sessions and juvenile court judges.

Notwithstanding any other law to the contrary, judges of courts of general sessions and juvenile courts may interchange with each other whenever causes exist making an interchange necessary or for mutual convenience. The interchanging judge shall not be required to be a resident of the county of the judge for whom such judge is sitting, but must otherwise possess the same qualifications as such judge.

Acts 1973, ch. 41, § 1; T.C.A., § 17-229; Acts 1997, ch. 473, § 2.

Law Reviews.

The Tennessee Court System — General Sessions Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 375.

Attorney General Opinions. Interchange by judges from different counties improper, OAG 96-114 (9/5/96).

A private act proposing to authorize a general sessions judge to interchange with a chancellor in a particular county should articulate the reasons why such authority is necessary or convenient to the operation of the judicial system in the affected county, as such an act would violate the constitution absent a rational basis for suspending the general law with regard to interchange in the particular county, OAG 02-074 (6/12/02).

Cited: Crawford v. Gilpatrick, 646 S.W.2d 433, 1983 Tenn. LEXIS 608 (Tenn. 1983); Jackson v. Lanphere, — S.W.3d —, 2011 Tenn. App. LEXIS 441 (Tenn. Ct. App. Aug. 12, 2011).

17-2-209. Interchange in certain divorce actions.

  1. In counties with a population of over seven hundred thousand (700,000), according to the 1980 federal census or any subsequent federal census, the general sessions judges may sit by interchange as a circuit court judge or chancellor for the exclusive purpose of hearing and deciding uncontested and irreconcilable differences in divorce cases.
  2. When the circuit court clerk or clerk and master determines that a pending divorce action is uncontested as to all material facts or issues, or when the clerk determines that the ground relied upon in a pending divorce action is irreconcilable differences between the parties pursuant to § 36-4-101, the clerk may so certify such determinations to the circuit court judge or chancellor.
  3. The circuit court judge or chancellor may designate that a general sessions judge sit by interchange to hear and decide any divorce action determined by the clerk to be uncontested or based upon irreconcilable differences. Any decree entered by a general sessions judge sitting by interchange pursuant to this section shall be considered a decree of the circuit or chancery court and any petitions for modification of the decree shall be filed in the circuit or chancery court. All appeals from the decision of a general sessions judge sitting by interchange pursuant to this section shall be taken in the same manner as if the circuit judge or chancellor rendered the decision.

Acts 1982, ch. 696, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Textbooks. Tennessee Jurisprudence, 9 Tenn. Juris., Divorce and Alimony, § 2.

Attorney General Opinions. A private act proposing to authorize a general sessions judge to interchange with a chancellor in a particular county should articulate the reasons why such authority is necessary or convenient to the operation of the judicial system in the affected county, as such an act would violate the constitution absent a rational basis for suspending the general law with regard to interchange in the particular county, OAG 02-074 (6/12/02).

General sessions court judges may not sit by interchange for circuit court judges or chancellors in the absence of a private act specifically granting such interchange authority, except "for the exclusive purpose of hearing and deciding uncontested and irreconcilable differences in divorce cases" in counties with a population over 700,000.  The General Assembly, by private act, may authorize general sessions judges to interchange with circuit court judges and chancellors in a particular county, as long as the General Assembly has a rational basis for granting interchange authority in that county. OAG 19-14, 2019 Tenn. AG LEXIS 49 (9/9/2019).

Cited: Jackson v. Lanphere, — S.W.3d —, 2011 Tenn. App. LEXIS 441 (Tenn. Ct. App. Aug. 12, 2011).

Part 3
Senior Judge Enabling Act

17-2-301. Short title.

This part shall be known and may be cited as the “Senior Judge Enabling Act of 1990.”

Acts 1990, ch. 1025, § 1.

Compiler's Notes. Acts 1990, ch. 1025, § 12 provided that, notwithstanding any provision of this part to the contrary, annual expenditures made to carry out the purposes of this part shall be subject to and shall not exceed the specific funding amount provided in each year's general appropriations act for the funding of the provisions of this part. Further, the funding for fiscal year 1990-1991 shall not exceed two hundred thousand dollars ($200,000).

NOTES TO DECISIONS

1. Standing.

Although plaintiff alleged that the Tennessee Plan and statutes providing for the appointment of special and senior judges violated her constitutional rights, plaintiff failed to allege any injury that was distinguishable from other voters, citizens, or litigants. Accordingly, the trial court properly dismissed plaintiff's complaint for lack of standing. Durham v. Haslam, — S.W.3d —, 2016 Tenn. App. LEXIS 236 (Tenn. Ct. App. Apr. 1, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 517 (Tenn. July 21, 2016), cert. denied, 196 L. Ed. 2d 522, 137 S. Ct. 641, — U.S. —, 2017 U.S. LEXIS 665 (U.S. Jan. 9, 2017).

17-2-302. Requests for senior designation.

  1. Any former supreme court justice, judge of an intermediate appellate court or judge of a state court of record who has at least eight (8) years of creditable service as a state justice or judge may request to be designated as a senior justice or judge.
  2. Requests for senior designation shall be filed with the administrative director of the courts and shall be accompanied by:
    1. Evidence that the justice or judge does not suffer from a permanent physical or mental disability that would substantially interfere with the performance of the justice's or judge's duties;
    2. A written agreement that the justice or judge will not engage in the practice of law while serving as a senior justice or judge;
    3. A written agreement that the justice or judge will be available to perform judicial duties for at least an aggregate period of thirty (30) weeks out of each successive twelve-month period;
    4. A written agreement that the justice or judge will continue to file the disclosure statements required by title 8, chapter 50, part 5 during the justice's or judge's tenure as a senior justice or judge;
    5. A written agreement that the justice or judge will abide by the code of judicial conduct; and
    6. A duly executed oath of office, taken in the manner prescribed in § 17-1-104, stating:

      “I,  , do solemnly swear that I will support the Constitution of the United States and the Constitution of Tennessee, and that I will administer justice without respect of persons and impartially discharge to the best of my ability all the duties of the office of senior justice (or judge) of the state of Tennessee on which I am about to enter.”

Acts 1990, ch. 1025, § 2; 1993, ch. 66, § 32; 1999, ch. 86, § 1; 2002, ch. 639, §§ 1, 2.

Code Commission Notes.

Acts 2002, ch. 639, § 9 provided that, during fiscal year 2001-2002, that act shall be implemented exclusively from funds provided for the senior judge program by the provisions of Acts 2001, chs. 435 and 464. In subsequent fiscal years, the act shall not be construed or implemented in any manner that requires increased funding for the senior judge program beyond the rate of inflation.

Compiler's Notes. Acts 1999, ch. 86, § 2 provided that it was the clear and unequivocal intent of the general assembly that subsection (a) as amended by that act have retroactive application to November 30, 1997.

Attorney General Opinions. Proposed legislation that gives the Tennessee Supreme Court the authority to appoint any former judge or justice who has at least one year of judicial service to serve as “a senior judge to hear complex commercial disputes” raises significant constitutional concerns. Unlike existing law, the proposed legislation would permit a former judge who has minimal judicial experience and who has never won a judicial election to serve in a judicial capacity. Such appointment would not be temporary but would be for a four-year term, renewable without limitation at the discretion of the Supreme Court. OAG 18-14, 2018 Tenn. AG LEXIS 15 (3/23/2018).

The proposed legislation that would allow the Supreme Court to transfer complex commercial cases from the assigned trial court judge to a senior business judge does itself not raise constitutional concerns. It constitutes a specific grant of authority to transfer cases in furtherance of the Supreme Court’s existing supervisory authority. OAG 18-14, 2018 Tenn. AG LEXIS 15 (3/23/2018).

17-2-303. Issuance of commission — Term.

  1. The supreme court is authorized to appoint senior judges only after it has made an affirmative finding that the effective administration of justice in one (1) or more judicial districts requires additional judicial resources.
    1. If the supreme court, at its discretion, determines that a former justice or judge is physically and mentally capable of performing valuable judicial service on a continuing basis and that the justice's or judge's service will promote the effective administration of justice, then the supreme court shall cause an appropriate commission to be issued under its seal for the period provided in subsection (c); provided, that such commission shall be issued only to a former justice or judge who left the justice's or judge's most recent term of judicial service in good standing with the board of judicial conduct or any successor to the board.
    2. Except as provided in subdivision (b)(3), no such commission shall be issued to any former justice or judge who, during the justice's or judge's most recent term of judicial service, sought reelection or retention but was defeated in the reelection or retention bid.
    3. Notwithstanding subdivision (b)(2), if the election following the most recent term of judicial service for a judge in a state court of record results in the judge not being reelected, the judge is authorized to be issued a commission if the judge has been elected at least twice and served at least two (2) full eight-year terms.
  2. The supreme court's designation shall be for a term of four (4) years unless the justice or judge has reached seventy (70) years of age, whereupon the term of the designation shall be for two (2) years or for any shorter period deemed proper by the supreme court. Senior justices and judges shall be eligible for reappointment.
  3. The supreme court's decision with regard to the initial designation or the renewal of senior designation is final and cannot be reviewed in any manner.

Acts 1990, ch. 1025, § 3; 2002, ch. 639, § 3; 2016, ch. 1023, § 1; 2018, ch. 829, § 1.

Code Commission Notes.

Acts 2002, ch. 639, § 9 provided that, during fiscal year 2001-2002, that act shall be implemented exclusively from funds provided for the senior judge program by the provisions of Acts 2001, chs. 435 and 464. In subsequent fiscal years, the act shall not be construed or implemented in any manner that requires increased funding for the senior judge program beyond the rate of inflation.

Amendments. The 2016 amendment rewrote subsection (b) which read: “If the supreme court, in its discretion, determines that a former justice or judge is physically and mentally capable of performing valuable judicial service on a continuing basis and that the justice's or judge's service will promote the effective administration of justice, then the supreme court shall cause an appropriate commission to be issued under its seal for the period provided in subsection (c); however, no such commission shall be issued to any former justice or judge who, during the justice's or judge's most recent term of judicial service, sought reelection or retention but was defeated in the reelection or retention bid.”

The 2018 amendment added the proviso at the end of (b)(1).

Effective Dates. Acts 2016, ch. 1023, § 2. April 28, 2016.

Acts 2018, ch. 829, § 2. April 27, 2018.

Attorney General Opinions. Proposed legislation that gives the Tennessee Supreme Court the authority to appoint any former judge or justice who has at least one year of judicial service to serve as “a senior judge to hear complex commercial disputes” raises significant constitutional concerns. Unlike existing law, the proposed legislation would permit a former judge who has minimal judicial experience and who has never won a judicial election to serve in a judicial capacity. Such appointment would not be temporary but would be for a four-year term, renewable without limitation at the discretion of the Supreme Court. OAG 18-14, 2018 Tenn. AG LEXIS 15 (3/23/2018).

The proposed legislation that would allow the Supreme Court to transfer complex commercial cases from the assigned trial court judge to a senior business judge does itself not raise constitutional concerns. It constitutes a specific grant of authority to transfer cases in furtherance of the Supreme Court’s existing supervisory authority. OAG 18-14, 2018 Tenn. AG LEXIS 15 (3/23/2018).

17-2-304. Assignment — Powers, duties and immunities.

  1. The chief justice may, with the senior justice's or judge's consent, assign the senior justice or judge to any state court.
  2. The assignment of a senior justice or judge shall be made by an order that designates the court to which the judge is assigned and the duration of the assignment. Promptly after the assignment of a senior justice or judge, the clerk of the supreme court in the grand division to which the assignment is made shall cause a certified copy of the order to be sent to the senior justice or judge and another certified copy to the presiding judge of the court to which the justice or judge is assigned.
  3. A senior justice or judge assigned as provided in this section has all the powers, duties and immunities while serving under the assignment of a regularly elected and qualified justice or judge of the court to which the senior justice or judge has been assigned. Without assignment, senior justices and judges may perform routine ministerial acts, including the solemnization of marriages and the administering of oaths, but shall not admit to bail any person accused of a crime.
  4. A senior justice or judge who has sat by designation and assignment on any court may, notwithstanding the expiration of the designation and assignment, decide or join in the decision and final disposition of all matters submitted to the justice or judge during the period of the assignment and may decide or join in the consideration and disposition of petitions for rehearing or further proceedings in the matters, including matters relating to cases on appeal.

Acts 1990, ch. 1025, § 4.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Rule Reference. This section is referred to in Tenn. Sup. Ct. R. 11, § VII.

17-2-305. Compensation, benefits, quarters, personnel and expenses.

    1. Senior justices and judges shall receive a salary calculated on the amount of time the senior justice or judge actually worked. The rate of payment shall be based upon the current compensation of the former office held by the senior justice or judge; provided, that where a senior justice or judge is receiving a retirement allowance under any retirement program administered by the Tennessee consolidated retirement system, the total combined annual amount of retirement allowance and annual salary received as a senior justice or judge cannot exceed the current annual compensation of the office from which the justice or judge retired.
    2. The salary shall be payable in monthly installments by the commissioner of finance and administration out of the state treasury.
    1. Senior justices and judges shall be considered to be state employees and shall be entitled to participate in the state's insurance and benefit programs on the same basis as other active justices and judges, except as provided in subdivision (b)(2).
      1. Any senior justice or judge who has not attained the maximum creditable service under the retirement system to which the justice or judge belongs shall be entitled to receive credit in the retirement system for service as a senior justice or judge; provided, that the senior justice or judge:
        1. Elects to receive the credit by notice to the board of trustees of the Tennessee consolidated retirement system; and
        2. Authorizes the deduction of the applicable contributions as set forth under title 8, chapter 37, part 2.
      2. Such service shall be based on the actual work performed and shall be added to the creditable service of the senior justice or judge. On July 1 of each year, the senior justice's or judge's retirement benefits shall be adjusted according to the retirement system to which the senior justice or judge belongs, as appropriate.
    2. Notwithstanding this subsection (b) to the contrary, any former judge who is a retired member of the Tennessee consolidated retirement system or of a superseded system as defined in § 8-34-101 and who is designated or redesignated as a senior justice or judge on or after July 1, 2018, shall reenroll as an active member of the retirement system, make such contributions as are required for the judge's position, and establish credit for the additional service.
  1. Senior justices and judges shall be provided with suitable office space and equipment, secretarial and research assistance and a law library similar to that provided to active justices and judges. Local governments presently responsible for providing quarters, personnel or other support for state judges shall cooperate with and assist the administrative director of the courts in providing for the reasonable needs of the senior justices or judges assigned to work in their county.
  2. A senior justice or judge assigned to a court located outside of the justice's or judge's county of residence shall receive the same reimbursement for travel expenses that is provided to active justices and judges. The expenses shall be paid upon the presentation of an itemized statement certified by the senior justice or judge to be correct.

Acts 1990, ch. 1025, § 5; 1993, ch. 66, § 33; 1995, ch. 491, § 1; 2002, ch. 639, §§ 4-7; 2018, ch. 736, § 27.

Code Commission Notes.

Acts 2002, ch. 639, § 9 provided that, during fiscal year 2001-2002, that act shall be implemented exclusively from funds provided for the senior judge program by the provisions Acts 2001, chs. 435 and 464. In subsequent fiscal years, the act shall not be construed or implemented in any manner that requires increased funding for the senior judge program beyond the rate of inflation.

Amendments. The 2018 amendment, in (d), redesignated former (b)(2) as present (b)(2)(A), redesignated former (b)(2)(A) and (b)(2)(B) as present (b)(2)(A)(i) and (b)(2)(A)(ii), respectively, redesignated former (b)(3) as present (b)(2)(B), and added (b)(3).

Effective Dates. Acts 2018, ch. 736, § 29. April 18, 2018.

17-2-306. Termination of senior status.

  1. Certification as a senior justice or judge shall terminate upon the expiration of the commission issued by the supreme court, except that the certification shall terminate earlier when any of the following occurs:
    1. The senior justice or judge requests termination of the status;
    2. The board of judicial conduct so orders;
    3. The senior justice or judge declines more than three (3) assignments pursuant to § 17-2-304(a) without good cause within any calendar year; or
    4. The supreme court, after affording the senior justice or judge notice and an opportunity to respond, determines that the senior justice or judge has failed to meet or to abide by any of the requirements of § 17-2-302(b). Senior justices or judges aggrieved by the supreme court's decision shall have the right to request that the decision be reviewed by the board of judicial conduct. After reviewing the supreme court's decision, the board of judicial conduct shall state its findings and may make recommendations to the supreme court.
  2. Termination of senior status for any reason shall not affect the amount of any retirement or other benefit to which the senior justice or judge would be otherwise entitled.

Acts 1990, ch. 1025, § 6; 2012, ch. 819, § 4.

Compiler's Notes. Acts 2012, ch. 819, § 5 provided that, in order to carry out its functions, duties, and responsibilities maintained under the provisions of the act, which amended subdivisions (a)(2) and (4), the court of the judiciary shall retain and have the authority to exercise any and all of its powers and duties existing under title 17 prior to enactment of the act, including, but not limited to, the power to subpoena, the power to take evidence, and the power to examine. Upon the termination of the court of the judiciary, the board of judicial conduct is expressly granted the same powers and duties as set forth above for the court of the judiciary in order to carry out its responsibilities established this chapter. The board of judicial conduct also is expressly authorized to continue any preliminary investigations, full investigations, and/or trials scheduled or in progress by the court of the judiciary at the time of termination of the court of the judiciary. This authorization includes the right to use any evidence obtained or taken by the court of the judiciary without the need to obtain again or retake any such evidence, including, but not limited to, prior issued subpoenas.

Acts 2012, ch. 819, § 6 provided that: (a) All rules of the court of the judiciary in effect on July 1, 2012, shall remain in full force and effect as rules of the board of judicial conduct until modified or repealed by the board of judicial conduct.

The initial rules adopted by the board of judicial conduct shall serve as the temporary rules of the board. The temporary rules shall remain in effect until such time as approved or not approved by the general assembly, with the board's chairperson presenting the rules, during the first session of the One Hundred Eighth General Assembly using the same procedure set out in § 16-3-404 for rules of court. If approved, the rules shall become the permanent rules of the board. All subsequent modifications or additions to such rules shall be approved by the general assembly in accordance with the procedures set forth in  § 16-3-404.

Amendments. The 2012 amendment, in (a), substituted “board of judicial conduct” for “court of the judiciary” in (2) and in the second and third sentences of (4).

Effective Dates. Acts 2012, ch. 819, § 8. July 1, 2012; provided, that, for the purposes of appointing the members of the board of judicial conduct created by the act, the act shall take effect April 25, 2012.

17-2-307. Conclusion of law practice.

A former justice or judge who is engaged in the practice of law at the time of designation as a senior justice or judge shall conclude all legal practice as soon as practicable on a timetable approved by the chief justice. The chief justice may, if warranted, withhold the issuance of the senior justice's or judge's commission pending resolution of all or any part of the former justice's or judge's practice.

Acts 1990, ch. 1025, § 7; 1993, ch. 66, § 34; 2002, ch. 639, § 8.

Code Commission Notes.

Acts 2002, ch. 639, § 9 provided that, during fiscal year 2001-2002, that act shall be implemented exclusively from funds provided for the senior judge program by the provisions Acts 2001, chs. 435 and 464. In subsequent fiscal years, the act shall not be construed or implemented in any manner that requires increased funding for the senior judge program beyond the rate of inflation.

17-2-308. Provisions of part supplemental.

  1. This part is intended to be in addition to and supplemental to this chapter and §§ 8-36-806 and 16-3-502(2) and shall not be construed to supersede these provisions as they exist on January 1, 1991.
  2. In the case of conflict between this part and any other statute, this part will control and shall not be used to supplant or replace an existing judge or an additional judge who is to be elected pursuant to § 16-2-505.

Acts 1990, ch. 1025, § 8.

17-2-309. Consultations regarding appointments.

  1. The supreme court shall advise and consult with the chairs of the judiciary and finance, ways and means committees of the house of representatives and the judiciary and finance, ways and means committees of the senate and with the commissioner of finance and administration whenever it has reason to believe that the effective administration of justice requires the appointment of one (1) or more senior justices or judges.
  2. [Deleted by 2016 amendment].
  3. [Deleted by 2016 amendment].

Acts 1990, ch. 1025, § 10; 1993, ch. 66, §§ 35, 36; 2013, ch. 236, § 46; 2016, ch. 797, § 13; 2019, ch. 345, § 28.

Amendments. The 2013 amendment substituted “the civil justice and finance, ways and means committees of the house of representatives and the judiciary and finance, ways and means committees of the senate” for “the judiciary and finance, ways and means committees of the senate and the house of representatives” in (a), (b), and the first sentence of the introductory paragraph of (c).

The 2016 amendment deleted former (b) and (c) which read: “(b) If, following these consultations, the supreme court appoints a senior justice or judge, the administrative director of the courts shall file a report with the commissioner of finance and administration and with the civil justice and finance, ways and means committees of the house of representatives and the judiciary and finance, ways and means committees of the senate stating the number of justices or judges to be appointed, the reasons for the appointment and the circuits or courts expected to be served.“(c) By no later than February 1 of each year, the administrative director of the courts shall file a report concerning the utilization of the senior justices and judges with the civil justice and finance, ways and means committees of the house of representatives and the judiciary and finance, ways and means committees of the senate and with the commissioner of finance and administration. The report shall identify the:“(1) Persons serving as senior justices or judges during the prior calendar year and the date and length of their appointments;“(2) Court or courts on which each justice or judge worked during the prior calendar year;“(3) Number of weeks each justice or judge worked during the prior calendar year; and“(4) Total expenses for the program during the prior calendar year showing the:“(A) Total personnel expenses for the senior justices and judges;“(B) Total expenses for support personnel;“(C) Total expenditures for office space, furniture, books and equipment; and“(D) Total expenditures for travel and related items.”

The 2019 amendment substituted “judiciary” for “civil justice” following “chairs of the” in (a).

Effective Dates. Acts 2013, ch. 236, § 94. April 19, 2013.

Acts 2016, ch. 797, § 19. April 14, 2016.

Acts 2019, ch. 345, § 148. May 10, 2019.

Chapter 3
Conferences

Part 1
Judicial Conferences

17-3-101. Creation — Membership.

  1. There is created a judicial conference for the state whose membership shall consist of all judges of courts of records whose salary is paid in whole or in part out of the state treasury, including retired judges.
  2. There shall also be included in the membership of the judicial conference active and retired judges who are licensed attorneys at law of all probate courts created by private acts of the state, in counties having a population of three hundred thousand (300,000) or more, according to the federal census of 1960 and any subsequent census.

Acts 1953, ch. 129, § 1 (Williams, § 738.13); 1965, ch. 262, § 1; 1969, ch. 64, § 1; T.C.A. (orig. ed.), § 17-401.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Judicial council, title 16, ch. 21, part 1.

Law Reviews.

Three Quarters of a Century in Judicial Administration (Delmar Karlen), 32 Tenn. L. Rev. 412.

Comparative Legislation. Judicial conference:

Ala.  Code § 12-8-1 et seq.

Mo. Rev. Stat. § 476.320 et seq.

Va. Code § 16.1-218 et seq.; § 17-228 et seq.

NOTES TO DECISIONS

1. Judicial Notice of Conference.

Court of appeals could take judicial knowledge of fact that ch. 3, part 1 of this title created the judicial conference, the membership of which consists of judges of all courts of the state whose salary is paid in whole or part by the state, that the conference shall meet annually at a time and place set by the conference, that it is the official duty of each member to attend the meeting unless officially engaged or for other good and sufficient reasons, and it was highly probable that judicial notice could be taken of the time and place of the convening of the conference; but court could not take judicial notice that circuit judge had postponed jury trial on day before the convening of the conference and had attended conference. Higgins v. Steide, 47 Tenn. App. 42, 335 S.W.2d 533, 1959 Tenn. App. LEXIS 127 (Tenn. Ct. App. 1959).

17-3-102. Attorney general as advisor.

The attorney general and reporter shall be an ex officio member of the conference and act as its legal advisor.

Acts 1953, ch. 129, § 2 (Williams, § 738.14); T.C.A. (orig. ed.), § 17-402.

17-3-103. Officers — Executive committee — Expenses.

  1. The judicial conference shall elect annually a president, vice president, secretary, treasurer and other officers that become necessary. The secretary may also serve as the treasurer.
    1. There shall also be an executive committee of the conference to consist of the president, vice president, secretary, treasurer, immediate past president, president-elect and nine (9) additional members to be appointed by the president, three (3) from each grand division of the state.
    2. In making the president’s first appointments to the executive committee, the president shall name three (3) members from each grand division, one (1) for a term of one (1) year, and one (1) for a term of two (2) years, and one (1) for a term of three (3) years, and thereafter the president shall make all appointments for terms of three (3) years each, so that the terms of three (3) members shall expire each year, one (1) from each grand division.
    3. When vacancies occur they shall be filled by appointments for the unexpired terms.
    4. The executive committee shall meet at such times and places as designated by the president, upon due notice to each member.
    5. Members of the executive committee shall be reimbursed for their reasonable and necessary traveling expenses incurred in attending the meetings, not to exceed two (2) meetings in any fiscal year, pursuant to policies and guidelines promulgated by the supreme court.

Acts 1953, ch. 129, § 6 (Williams, § 738.18); 1957, ch. 392, § 1; 1959, ch. 284, § 1; 1963, ch. 199, § 1; T.C.A. (orig. ed.), § 17-403; Acts 1984, ch. 619, §§ 1, 2; 1993, ch. 196, § 4.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

17-3-104. Annual meetings.

  1. The conference shall meet annually for the consideration of any and all matters pertaining to the discharge of the official duties and obligations of its several members, to the end that there shall be a more prompt and efficient administration of justice in the courts of this state.
  2. The conference shall set the time and place of each annual meeting.

Acts 1953, ch. 129, §§ 3, 6 (Williams, §§ 738.15, 738.18); modified; T.C.A. (orig. ed.), § 17-404.

Cross-References. District attorney-general conference annual meeting to be held at same time, § 8-7-304.

NOTES TO DECISIONS

1. Judicial Notice of Conference.

Court of appeals could take judicial knowledge of fact that ch. 3, part 1 of this title created the judicial conference, the membership of which consists of judges of all courts of the state whose salary is paid in whole or part by the state, that the conference shall meet annually at a time and place set by the conference, that it is the official duty of each member to attend the meeting unless officially engaged or for other good and sufficient reasons, and it was highly probable that judicial notice could be taken of the time and place of the convening of the conference; but court could not take judicial notice that circuit judge had postponed jury trial on day before the convening of the conference and had attended conference. Higgins v. Steide, 47 Tenn. App. 42, 335 S.W.2d 533, 1959 Tenn. App. LEXIS 127 (Tenn. Ct. App. 1959).

17-3-105. Duty of members to attend — Exception — Expenses.

  1. It is the official duty of each member of the conference, with the exception of retired judges, to attend its annual meetings unless otherwise officially engaged or for other good and sufficient reasons.
  2. Every member shall be entitled to have the member's expenses paid for attendance. The expenses shall be paid pursuant to policies and guidelines promulgated by the supreme court.

Acts 1953, ch. 129, § 7 (Williams, § 738.19); 1957, ch. 392, § 2; T.C.A. (orig. ed.), § 17-405; Acts 1983, ch. 380, § 1; 1993, ch. 196, § 5; 2017, ch. 131, § 1.

Amendments. The 2017 amendment inserted “, with the exception of retired judges,” in (a).

Effective Dates. Acts 2017, ch. 131, § 2. April 17, 2017.

NOTES TO DECISIONS

1. Judicial Notice of Conference.

Court of appeals could take judicial knowledge of fact that ch. 3, part 1 of this title created the judicial conference, the membership of which consists of judges of all courts of the state whose salary is paid in whole or part by the state, that the conference shall meet annually at a time and place set by the conference, that it is the official duty of each member to attend the meeting unless officially engaged or for other good and sufficient reasons, and it was highly probable that judicial notice could be taken of the time and place of the convening of the conference; but court could not take judicial notice that circuit judge had postponed jury trial on day before the convening of the conference and had attended conference. Higgins v. Steide, 47 Tenn. App. 42, 335 S.W.2d 533, 1959 Tenn. App. LEXIS 127 (Tenn. Ct. App. 1959).

17-3-106. Rules of conduct for judges.

The conference shall have full power and authority to prescribe rules of official conduct of all judges, the rules to be in compliance with the code of judicial ethics as promulgated by the American Bar Association but not otherwise.

Acts 1953, ch. 129, § 5 (Williams, § 738.17); T.C.A. (orig. ed.), § 17-406.

17-3-107. Crime suppression recommendations.

It is the duty of the conference to give consideration to the enactment of laws and rules of procedure that in its judgment may be necessary to the more effective suppression of crime and thus promote peace and good order in the state. To this end, a committee of its members shall be appointed to draft suitable legislation and submit its recommendations to the general assembly.

Acts 1953, ch. 129, § 4 (Williams, § 738.16); T.C.A. (orig. ed.), § 17-407.

Part 2
General Sessions Judges Conference

17-3-201. Creation — Membership.

  1. There is created the Tennessee general sessions judges conference, which shall be the official organization of the general sessions judges in this state.
  2. The membership of the conference shall consist of all judges of general sessions courts in the state.

Acts 1970, ch. 399, § 1; T.C.A., § 17-601.

17-3-202. Adoption of rules — Bylaws — Officers.

The Tennessee general sessions judges conference is authorized to adopt and, from time to time, amend rules, regulations or bylaws that it considers necessary for the conduct of its affairs. The rules, regulations or bylaws may provide for officers that the conference considers advisable, for the method of selection of the officers, for the selection of a time and place within the state for annual meetings of the conference, and for other matters consistent with the general laws of the state that the conference chooses.

Acts 1970, ch. 399, § 2; T.C.A., § 17-602.

17-3-203. Annual meeting.

The conference shall meet annually for the consideration of any and all matters pertaining to the discharge of the official duties and obligations of its members, to the end that there shall be a more efficient and prompt administration of justice in the general sessions courts of this state.

Acts 1970, ch. 399, § 3; T.C.A., § 17-603.

17-3-204. Duty to attend — Expenses.

  1. It is the official duty of each member of the conference to attend the annual meeting unless unable to do so because of physical incapacity.
  2. Each member shall be compensated for the member's actual expenses in attending the annual meeting. The expenses shall be paid upon a verified statement of expenses being filed with the county mayor by any member incurring the expenses. Expenses shall be paid by the trustee upon warrant of the county mayor from the general fund of the county in which the member serves as judge.

Acts 1970, ch. 399, § 4; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A., § 17-604; Acts 2003, ch. 90, §  2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Part 3
Municipal Judges Conference

17-3-301. Creation — Authority — Annual meeting.

  1. There is created the Tennessee municipal judges conference, which shall be the official organization of the municipal judges in this state. The membership of the conference shall consist of all judges of municipal courts in the state. The judges shall annually elect a board of governors for the conference.
  2. The Tennessee municipal judges conference is authorized to adopt and, from time to time, amend rules or bylaws that it deems necessary or prudent for the conduct of its affairs. The rules or bylaws shall provide for membership on the board of governors that the conference considers advisable, for the selection of a time and place within the state for annual meetings of the conference, and for other matters consistent with the general laws of the state that the conference chooses.
  3. The conference shall meet annually for the consideration of any and all matters pertaining to the discharge of the official duties and obligations of its members, to the end that there shall be a more efficient and prompt administration of justice in the municipal courts in this state. The annual meeting shall provide educational seminars or training for the membership in addition to the business sessions.
    1. It is the official duty of each member of the conference to attend the annual meeting unless unable to do so because of physical incapacity.
    2. Each member shall be compensated for the member's reasonable expenses in attending the annual meeting. The expenses shall be paid upon a verified statement of expenses being filed with the administrative office of the courts (AOC) by any member incurring such expenses. Expenses shall be paid by the AOC from funds received pursuant to § 16-18-304(a) for training and continuing education courses for municipal court judges. If the designated account fails to accrue sufficient funds to defray the expenses incurred, the member's municipality is responsible for payment of the expenses.

Acts 2004, ch. 914, § 4; 2018, ch. 620, §§ 1, 2.

Amendments. The 2018 amendment added the last sentence in (c); and rewrote (d)(2) which read: “(2)  Each member shall be compensated for the member's actual expenses in attending the annual meeting. The expenses shall be paid upon a verified statement of expenses being filed with the chief administrative officer of the municipality by any member incurring such expenses. Expenses shall be paid upon warrant of the chief administrative officer of the municipality from the general fund of the municipality.”.

Effective Dates. Acts 2018, ch. 620, § 3. April 2, 2018.

Chapter 4
Judicial Appointment and Trial Court Vacancy Commission

Part 1
Judicial Appointment

17-4-101. Appointment by governor — Length of term — Vacancy — Confirmation.

  1. The governor shall appoint a qualified person to the supreme court, the court of appeals, or the court of criminal appeals:
    1. For a full eight-year term whenever an incumbent judge of the supreme court, the court of appeals, or the court of criminal appeals fails to file with the state election commission a written declaration of candidacy or withdraws a declaration of candidacy within the deadlines established by § 17-4-106 or is not retained in a retention election held at the end of an eight-year term; or
    2. To fill a vacancy occurring as a result of death, resignation, retirement, failure to be retained at a retention election held any time other than the end of an eight-year term, or otherwise.
  2. The governor's appointee shall not take office until the appointee has been confirmed by the general assembly by vote or by default as provided in this part.
  3. Upon notice of an impending vacancy, the process of appointment and confirmation in accordance with this part may proceed; however, a confirmed appointee shall not take office until the vacancy actually occurs.

Acts 2009, ch. 517, § 1; 2016, ch. 528, § 9.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Amendments. The 2016 amendment rewrote the section which read: “It is the declared purpose and intent of the general assembly by the passage of this chapter to:“(1) Assist the governor in finding and appointing the best qualified persons available for service on the appellate courts of this state, and to assist the electorate of this state in electing the best qualified persons to the courts;“(2) Better insulate the judges of the courts from political influence and pressure;“(3) Improve the administration of justice;“(4) Enhance the prestige of and respect for the courts by minimizing the necessity of political activities by appellate judges; and“(5) Make the courts less political.”

Effective Dates. Acts 2009, ch. 517, § 6. July 1, 2009.

Acts 2016, ch. 528, § 23. January 28, 2016.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judges, § 5.

Law Reviews.

A Response to Professor Fitzpatrick: The Rest of the Story (Penny J. White & Malia Reddick), 75 Tenn. L. Rev. 501 (2008).

Errors, Omissions, and the Tennessee Plan (Brian T. Fitzpatrick), 39 U. Mem. L. Rev. 85 (2008).

Ethical Obligations of Judges (Joe G. Riley), 23 Mem. St. U.L. Rev. 507 (1993).

Modified “Missouri Plan” Passes in Legislature, 30 No. 3 Tenn. B.J. 6 (1994).

Attorney General Opinions. Residency requirements for the appellate courts, OAG 94-141 (11/28/94).

Comparative Legislation. Nominating commissions:

Ky. Rev. Stat. Ann. § 34.010 et seq.

Mo. S. Ct. R. 10.01 et seq.

NOTES TO DECISIONS

1. Constitutionality.

Under former Tenn. Sup. Ct. R. 10, Canon 3(E), the high court's participation in an appeal challenging the Tennessee Plan, T.C.A. §§ 17-4-101 through 17-4-119, which provided for the selection and evaluation of state appellate judges, had to be measured against an objective standard; as there was an appearance of the court members'  economic interest in their own compensation, they recused themselves. Hooker v. Haslam, 393 S.W.3d 156, 2012 Tenn. LEXIS 719 (Tenn. July 27, 2012).

Trial court correctly held that it was bound by the doctrine of stare decisis with respect to plaintiff's general challenge to the constitutionality of the Tennessee Retention Election statutes, T.C.A. § 17-4-101 et seq., and correctly held that the Tennessee Plan was constitutional because the supreme court upheld the constitutionality of the statutes in prior decisions. Hooker v. Haslam, 382 S.W.3d 358, 2012 Tenn. App. LEXIS 511 (Tenn. Ct. App. July 27, 2012).

General Assembly, exercising its exclusive constitutional authority, defined the entire State of Tennessee as the “district” to which the intermediate court judges are assigned; accordingly, because the judges are assigned to serve and do serve the entire State, their election by a statewide retention election pursuant to the Tennessee Plan, T.C.A. § 17-4-101 et seq., is consistent with the requirements of Tenn. Const. art. VI, § 4 of the Tennessee Constitution. Hooker v. Haslam, 382 S.W.3d 358, 2012 Tenn. App. LEXIS 511 (Tenn. Ct. App. July 27, 2012).

2. Court of Appeals.

Trial court erred in holding that intermediate appellate judges were subject to retention only by the qualified voters of the grand division in which the judge resided because the General Assembly intend to create one court of appeals and not three. Hooker v. Haslam, 382 S.W.3d 358, 2012 Tenn. App. LEXIS 511 (Tenn. Ct. App. July 27, 2012).

17-4-102. Written notice of judicial appointment by governor — Background investigations of appointees — Confirmation or rejection by general assembly.

  1. Immediately upon making an appointment to the supreme court, the court of appeals, or the court of criminal appeals, the governor shall provide written notice of the appointment to the chief clerk of the senate and the chief clerk of the house of representatives. The notice shall specify whether the appointment is for a full eight-year term or for the filling of a vacancy. Delivery of the notice of appointment to both the chief clerk of the senate and the chief clerk of the house of representatives shall begin the appropriate sixty-day period established in accordance with § 17-4-103. Upon receiving the notice of appointment, the chief clerk of the senate and the chief clerk of the house of representatives shall notify the members of their respective house and shall refer the notice of appointment to the appropriate standing committee of their respective house as provided by rule.
  2. The Tennessee bureau of investigation shall perform appropriate financial and criminal background investigations of a judicial appointee and shall provide the results of the investigations and inquiries to the chair of any standing committee of the general assembly to which a notice of appointment pursuant to subsection (a) is referred.
  3. The chair of any standing committee of the general assembly to which a notice of appointment pursuant to subsection (a) is referred may, in accordance with the rules of the applicable house, conduct a hearing, vote to recommend confirmation or rejection of the appointee, and submit a written report of the action taken to the applicable clerk.
  4. Within the appropriate sixty-day period established in accordance with § 17-4-103, the general assembly shall meet in joint session for the purpose of voting either to confirm or to reject the governor's appointee. The votes of each house shall be made and tabulated separately. The governor's appointee shall be confirmed if both houses vote to confirm the appointee by a majority of all the members to which each house is entitled. The governor's appointee shall be rejected if both houses vote to reject the appointee by a majority of all the members to which each house is entitled or if one (1) house votes to reject the appointee by at least two-thirds (2/3) of all members to which the house is entitled. If a vote results in any other outcome, then no action is taken and both houses may vote again to confirm or reject, subject to § 17-4-103(b). No vote shall be taken pursuant to this subsection (d) except in joint session.

Acts 2009, ch. 517, § 1; 2016, ch. 528, § 10.

Compiler's Notes. The judicial nominating commission, created by this section, terminated June 30, 2012, and entered its wind-up period pursuant to the provisions of § 4-29-112. Wind-up was completed on June 30, 2013. See §§ 4-29-104, 4-29-112.

Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Amendments. The 2016 amendment rewrote the section which read: “(a) There is established as a part of the judicial branch of the state a judicial nominating commission, to be composed of seventeen (17) members as follows:“(1) Eight (8) members shall be appointed by the speaker of the senate;“(A) Two (2) of the members shall be appointed from each of the state's three (3) grand divisions, and the remaining two (2) members shall be appointed at-large; and“(B) At least five (5) of the members shall be attorneys;“(2) Eight (8) members shall be appointed by the speaker of the house of representatives;“(A) Two (2) of the members shall be appointed from each of the state's three (3) grand divisions, and the remaining two (2) members shall be appointed at-large; and“(B) At least five (5) of the members shall be attorneys;“(3) One (1) non-attorney member shall be appointed at-large by joint action of the speaker of the senate and the speaker of the house of representatives; and“(4) Not more than three (3) of the members appointed at-large may be residents of the same grand division.“(b)(1) The entire membership of the judicial selection commission shall be vacated and shall be replaced by new appointments made to the judicial nominating commission pursuant to this section. In order to stagger the terms of the newly appointed commission members, initial appointments shall be made as follows:“(A) Two (2) of the speaker of the senates's initial appointments shall be made for terms of two (2) years each;“(B) Two (2) of the speaker of the house's initial appointments shall be made for terms of two (2) years each;“(C) The speakers' joint appointment shall be made for a term of two (2) years;“(D) Three (3) of the speaker of the senate's initial appointments shall be made for terms of four (4) years each;“(E) Three (3) of the speaker of the house's initial appointments shall be made for terms of four (4) years each;“(F) Three (3) of the speaker of the senate's initial appointments shall be made for terms of six (6) years each; and“(G) Three (3) of the speaker of the house's initial appointments shall be made for terms of six (6) years each.“(2) Thereafter, the terms for all appointments shall comply with §§ 17-4-106 and 17-4-107(a).“(c) In making the appointments to the judicial nominating commission, each speaker shall do so with a conscious intention of selecting a body that reflects diversity with respect to:“(1) Race, including the dominant ethnic minority population;“(2) Gender; and“(3) Representation of rural areas as well as urban centers.“(d) The administrative office of the courts shall develop and post on its web site a downloadable information and application form for citizens who wish to be considered for appointment to the judicial nominating commission. The form shall indicate all qualifications required for appointment to the commission. To be considered for appointment, each applicant must complete, sign and submit the form. Appropriate deadlines for submission of the forms shall be established by the administrative office of the courts in advance of each scheduled vacancy and promptly after the occurrence of any unscheduled vacancy. Each time that deadlines are so established, in addition to notice posted on its web site, the administrative office of the courts shall take appropriate action to notify the general public and shall provide written notification to the speaker of the senate and the speaker of the house of representatives. Immediately following the occurrence of any such deadline, the administrative office of the courts shall post on its web site a summary report of all qualified applicants for the vacant position or positions. The summary report shall include at least the name, county of residence and occupation of each applicant. For a period of fourteen (14) days following the posting of the summary report, the administrative office of the courts shall receive public comments from interested persons and organizations. At the conclusion of the period for public comments, the application forms and corresponding public comments shall be forwarded to the appropriate speaker or speakers for consideration and action. Within fourteen (14) days following receipt of the information, the speaker or speakers shall make the required appointments from the pool of qualified applicants. However, for good cause, either speaker may fill a vacancy by appointing a qualified person not included within the pool of applicants if the speaker provides written notice to the administrative office of the courts stating the reasons for appointing a person not included within the pool of applicants.”

Effective Dates. Acts 2009, ch. 517, § 6. July 1, 2009.

Acts 2016, ch. 528, § 23. January 28, 2016.

Acts 2016, ch. 528, § 23. January 28, 2016.

Cross-References. Grand division, title 4, ch. 1, part 2.

Law Reviews.

Errors, Omissions, and the Tennessee Plan (Brian T. Fitzpatrick), 39 U. Mem. L. Rev. 85 (2008).

NOTES TO DECISIONS

1. Constitutionality.

Trial court correctly held that it was bound by the doctrine of stare decisis with respect to plaintiff's general challenge to the constitutionality of the Tennessee Retention Election statutes, T.C.A. § 17-4-101 et seq., and correctly held that the Tennessee Plan was constitutional because the supreme court upheld the constitutionality of the statutes in prior decisions. Hooker v. Haslam, 382 S.W.3d 358, 2012 Tenn. App. LEXIS 511 (Tenn. Ct. App. July 27, 2012).

17-4-103. Legislative vote on confirmation.

    1. If the general assembly is in its annual legislative session when the appointment is made, then the vote, if any, on confirmation of the governor's appointee shall occur within sixty (60) consecutive calendar days immediately following the appointment.
    2. If the general assembly is not in its annual legislative session when the appointment is made, then the vote, if any, on confirmation of the governor's appointee shall occur within sixty (60) consecutive calendar days, beginning on the convening date of the next annual legislative session following the appointment.
  1. If the general assembly fails to reject the governor's appointee within sixty (60) consecutive calendar days, then the appointee shall be deemed confirmed as of the following calendar day, regardless of whether the general assembly is then in session.

Acts 2009, ch. 517, § 1; 2016, ch. 528, § 11.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Amendments. The 2016 amendment rewrote the section which read: “(a) Each member of the judicial nominating commission shall be a citizen of the United States, shall be at least thirty (30) years of age, and shall have been a citizen of this state for at least five (5) years immediately prior to appointment. Any member appointed from one (1) of the state's grand divisions shall have been a resident of that grand division for at least one (1) year immediately prior to appointment.“(b) Each attorney member shall be duly licensed to practice by the Tennessee supreme court.”

Effective Dates. Acts 2009, ch. 517, § 6. July 1, 2009.

Acts 2016, ch. 528, § 23. January 28, 2016.

Cross-References. Grand division, title 4, ch. 1, part 2.

17-4-104. Commencement of service.

  1. A supreme court, court of appeals, or court of criminal appeals judge confirmed in accordance with this part shall commence service in the office to which the judge was confirmed:
    1. Upon confirmation, if the judge is confirmed to fill a vacancy for an unexpired term;
    2. September 1, if the judge is confirmed to a full eight-year term prior to the September 1 on which the term begins; or
    3. Upon confirmation, if the judge is confirmed to a full eight-year term after the eight-year term has commenced on September 1. The eight-year term of a supreme court, court of appeals, or court of criminal appeals judge confirmed after September 1 shall end on the same date as a judge confirmed on or prior to September 1.
  2. If the governor's appointee is rejected by the general assembly or is withdrawn by the governor within sixty (60) calendar days of the applicable date set out in § 17-4-103(a), then the governor shall appoint another individual for a full term or to fill a vacancy as provided in this part. Any appointee who has been rejected by the general assembly is not eligible for reappointment to the same court, until after the next regular August election occurring at least one (1) year following the appointment.

Acts 2009, ch. 517, § 1; 2012, ch. 853, § 2; 2016, ch. 528, § 12.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Amendments. The 2012 amendment added the second sentence to (a).

The 2016 amendment rewrote the section which read: “(a) No member of the judicial nominating commission shall be a salaried office holder of this state or the United States, nor shall any member of the commission hold any office in any political party or political organization; provided, that members of the national guard and members of any armed forces reserve organization, any district attorney general or an employee of a district attorney general or any district public defender or an employee of a district public defender shall not be considered as salaried office holders. This subsection (a) shall not apply to the solicitor general or any employee of the attorney general and reporter, any of whom shall be eligible to serve as a member of the judicial nominating commission.“(b) Any member of the judicial nominating commission who becomes a salaried office holder of this state or the United States or who accepts any office in any political party or political organization ipso facto vacates the member's office as a member of the commission.“(c) No member of the judicial nominating commission shall be a registered employer of a lobbyist in this state or a registered lobbyist in this state. Any member of the commission who becomes a registered employer of a lobbyist or a registered lobbyist in this state ipso facto vacates the member's office as a member of the commission.”

Effective Dates. Acts 2009, ch. 517, § 6. July 1, 2009.

Acts 2012, ch. 853, § 5. April 27, 2012.

Acts 2016, ch. 528, § 23. January 28, 2016.

Attorney General Opinions. Service as University of Tennessee assistant general counsel and member of judicial selection commission, OAG 00-054 (3/23/00).

17-4-105. Retention elections.

  1. A judge, who has been appointed and confirmed for a full eight-year term on the supreme court, the court of appeals, or the court of criminal appeals and who takes office on September 1 at the beginning of the eight-year term or in accordance with § 17-4-104(a)(3), shall face a retention election at the next regular August election immediately preceding the end of the eight-year term, as provided in § 17-4-106.
  2. A judge, who has been appointed and confirmed to fill a vacancy for an unexpired term on the supreme court, the court of appeals, or the court of criminal appeals more than thirty (30) days prior to the next regular August election, shall stand for election in a retention election for the remainder of the term at the next regular August election following confirmation as provided in § 17-4-106.
  3. A judge, who has been appointed and confirmed to fill a vacancy for an unexpired term on the supreme court, the court of appeals, or the court of criminal appeals thirty (30) days or less prior to a regular August election, shall stand for election in a retention election at the next regular August election occurring more than thirty (30) days following the judge's confirmation as provided in § 17-4-106.
  4. All incumbent judges of the supreme court, the court of appeals, and the court of criminal appeals who intend to stand for election for another eight-year term, shall stand for election in a retention election at the regular August election immediately preceding the end of the eight-year term as provided in § 17-4-106.
  5. The judges appointed in 2014, 2015, and prior to January 28, 2016, to fill vacancies on the supreme court, the court of appeals, and the court of criminal appeals, whose names were not included on the regular August 2014 ballot, shall, upon filing a timely written declaration of candidacy pursuant to § 17-4-106 not later than twelve o'clock (12:00) noon, prevailing time, on April 7, 2016, stand for election in a retention election in the regular August election in 2016.

Acts 2009, ch. 517, § 1; 2016, ch. 528, § 13.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Amendments. The 2016 amendment rewrote the section which read: “(a) The term of office of each member of the judicial nominating commission shall begin on July 1, 2009.“(b)(1) As soon as practicable after July 1, 2009, the judicial nominating commission shall meet in an organizational session convened by the chief justice of the supreme court.“(2) At the first organizational meeting, the chief justice shall preside as temporary chair, and a permanent chair shall be elected from the membership of the commission.“(3) If the chief justice is unable to convene the commission or serve as temporary chair, the chief justice may designate another member of the supreme court to so serve.“(c) The commission may elect such other officers as it deems necessary and proper, and may adopt and from time to time amend bylaws and rules of procedure for the conduct of its business and discharge of its duties.“(d) The commission may employ such secretarial and clerical assistance as it deems necessary.”

Effective Dates. Acts 2009, ch. 517, § 6. July 1, 2009.

Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-106. Written declaration of candidacy required.

  1. An incumbent judge of the supreme court, the court of appeals, or the court of criminal appeals who seeks to be retained in the office to which the incumbent judge was appointed and confirmed must qualify by filing with the state election commission a written declaration of candidacy to be retained for a full term or an unexpired term. The declaration must be filed not later than twelve o'clock (12:00) noon, prevailing time, on the first Thursday in January before the regular August election. A judge confirmed after the first Thursday in January in the same year as the regular August election must file the declaration no later than the first Thursday occurring at least one (1) full week after the judge's confirmation. After timely filing the declaration, a candidate may withdraw by filing a notice of withdrawal with the state election commission not later than twelve o'clock (12:00) noon, prevailing time, on the seventh day after the deadline for filing the declaration of candidacy.
    1. If the declaration of candidacy is timely filed, then only the name of the candidate, without party designation, shall be submitted to the qualified voters of the state in the regular August election. Each county election commission of the state shall cause the following to be placed on the ballot:

      Shall (Name of Candidate) be retained in office as a Judge of the (Name of Court) or be replaced?

      Retain

      OR

      Replace

    2. If the declaration of candidacy is not timely filed, then the judge's name shall not be submitted to the qualified voters of the state.
    1. If a majority of those voting on the question vote to retain the candidate, then the candidate is duly elected to the office and shall be given a certificate of election.
    2. If a majority or one-half (½) of those voting on the question vote not to retain the candidate, then a vacancy exists in the office as of September 1 following the regular August election. The governor shall fill the vacancy subject to confirmation by the general assembly in accordance with this part.
    3. A candidate who has been defeated in any retention election held under this chapter shall not be eligible for reappointment to the seat for which the candidate was defeated until one (1) regular August election has occurred subsequent to the defeat.
  2. An incumbent judge on the supreme court, the court of appeals, or the court of criminal appeals who does not file a declaration of candidacy for election within the prescribed time, who withdraws as a candidate for election, or who is not retained in a retention election, shall end the judge's term on August 31 of that year. The governor shall fill the office subject to confirmation by the general assembly in accordance with this part.

Acts 2009, ch. 517, § 1; 2012, ch. 853, § 1; 2016, ch. 528, § 14.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Amendments. The 2012 amendment rewrote (b) which read: “No member shall be eligible for reappointment for a successive term, unless the member’s previous appointment was for an initial or partial term of twenty-four (24) months or less.”

The 2016 amendment rewrote the section which read: “(a) Except as otherwise provided in § 17-4-102(b) or § 17-4-107(a), the term of a member of the judicial nominating commission shall be six (6) years.“(b) Members shall be eligible for reappointment for a successive term.”

Effective Dates. Acts 2009, ch. 517, § 6. July 1, 2009.

Acts 2012, ch. 853, § 5. April 27, 2012.

Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-107. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-107 concerned vacancies on commission.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-108. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-108 concerned service of members without compensation and expenses.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-109. [Repealed.]

Acts 2009, ch. 517, § 1; 2012, ch. 853, § 4; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-109 concerned judicial vacancies, public meeting of commission, notice, interviews with candidates, additional meetings, voting, and certification of nominees.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-110. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-110 concerned qualifications of judicial nominees.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-111. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-111 concerned members of commission ineligibility for judicial nominations.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-112. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-112 concerned judicial appointments from nominees from commission and expiration of terms.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-113. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former § 17-4-113 (Acts 1971, ch. 198, § 13; T.C.A., § 17-713; Acts 1986, ch. 624, § 5; 1994, ch. 942, § 15), concerning appointment when commission fails to nominate, was repealed by Acts 1994, ch. 942, § 15, effective September 1, 1994, except for the purposes of making appointments to the judicial evaluation and selection commissions, authorizing the supreme court to establish the rule regarding judicial evaluation, and electing appellate court judges in the 1994 regular August election, for which purposes it took effect May 9, 1994.

Former § 17-4-113 concerned appointments by governor if commission does not furnish list of nominees and expiration of terms.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-114. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-114 concerned declaration of candidacy to fill unexpired term, election, ballot,  and declaration of candidacy not timely filed.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-115. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-115 concerned declaration of candidacy for reelection for full term, time of filing, exception, form of ballot, rejection of candidate, appointment.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-116. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-116 concerned failure to seek reelection, nomination and appointment subject to election, exception, rejection of candidate, and appointment.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-117. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-117 concerned duties of administrative office of the courts.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-118. [Repealed.]

Acts 2009, ch. 517, § 1; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former part 1, §§ 17-4-10117-4-112, 17-4-11417-4-118 (Acts 1971, ch. 198, §§ 1-12, 14-16; impl. am. Acts 1972, ch 740, § 6; Acts 1973, ch. 265, §§ 1-7; 1974, ch. 433, § 1; 1976, ch. 712, § 1; 1982, ch. 590, § 1; T.C.A., §§ 17-701 — 17-712, 17-714 — 17-716, modified; Acts 1986, ch. 624, §§ 1-4; 1989, ch. 431, § 1; 1993, ch. 66, §§ 37, 38; 1993, ch. 196, §§ 6, 7; 1994, ch. 942, §§ 3-14, 16-20; 1999, ch. 315, §§ 2-10; 2001, ch. 459, §§ 3-8), concerning judicial selection, was repealed by Acts 2009, ch. 517, § 1, effective July 1, 2009. For provisions concerning judicial nomination, see this part.

Former § 17-4-118 concerned trial court judges, appointments, expiration of terms, and elections.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-119. [Repealed.]

Acts 2009, ch. 517, § 3; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former § 17-4-119 concerned transfer of rules, procedures, records, reports, functions and duties to successor entities.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

17-4-120. [Repealed.]

Acts 2012, ch. 853, § 3; repealed by Acts 2016, ch. 528, § 15, effective January 28, 2016.

Compiler's Notes. Former § 17-4-120 concerned continuance or postponement of proceedings if member of judicial nominating commission absent.

For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Part 2
Judicial Performance Evaluation

17-4-201. [Repealed.]

Acts 2009, ch. 517, § 2; 2012, ch. 953, § 1; repealed by Acts 2016, ch. 528, § 18, effective January 28, 2016.

Compiler's Notes. Former § 17-4-201 concerned judicial performance evaluation program.

Part 3
Trial Court Vacancy Commission

17-4-301. Establishment — Composition of commission — Information.

  1. There is established as a part of the judicial branch of the state a trial court vacancy commission, referred to in this part as “the commission,” that shall have jurisdiction over all trial court vacancies occurring on or after February 1, 2016. For purposes of making the initial appointments to the commission, the speaker of the senate and the speaker of the house of representatives are authorized to make appointments on January 28, 2016. The commission shall be composed of eleven (11) members as follows:
    1. Five (5) members shall be appointed by the speaker of the senate. At least three (3) of these members shall be attorneys;
    2. Five (5) members shall be appointed by the speaker of the house of representatives. At least three (3) of these members shall be attorneys; and
    3. One (1) member shall be appointed by joint action of the speaker of the senate and the speaker of the house of representatives. This member shall be an attorney and shall serve as chair of the commission.
    1. In order to stagger the terms of the newly appointed commission members, initial appointments shall be made as follows:
      1. One (1) of the initial appointments by the speaker of the senate shall be made for a term of two (2) years;
      2. One (1) of the initial appointments by the speaker of the house of representatives shall be made for a term of two (2) years;
      3. The speakers' joint appointment shall be made for a term of two (2) years;
      4. Two (2) of the initial appointments by the speaker of the senate shall be made for terms of four (4) years each;
      5. Two (2) of the initial appointments by the speaker of the house of representatives shall be made for terms of four (4) years each;
      6. Two (2) of the initial appointments by the speaker of the senate shall be made for terms of six (6) years each; and
      7. Two (2) of the initial appointments by the speaker of the house of representatives shall be made for terms of six (6) years each.
    2. After the initial appointments, the terms for all appointments shall comply with §§ 17-4-305 and 17-4-306.
  2. The administrative office of the courts shall develop and post on its web site downloadable information about the commission suitable for viewing by the general public.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

The Trial court vacancy commission, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-302. Membership requirements.

  1. Each member of the commission shall be a citizen of the United States, shall be at least thirty (30) years of age, and shall have been a citizen of this state for at least five (5) years immediately prior to appointment.
  2. Each attorney member shall be duly licensed to practice by the Tennessee supreme court.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-303. Exclusions from membership on commission.

  1. No member of the commission shall be a salaried office holder of this state or the United States, nor shall any member of the commission hold any office in any political party or political organization; provided, that members of the national guard and members of any armed forces reserve organization, any district attorney general or an employee of a district attorney general, or any district public defender or an employee of a district public defender shall not be considered as salaried office holders. This subsection (a) shall not apply to any employee of the attorney general and reporter, except the attorney general and reporter and the solicitor general.
  2. Any member of the commission who becomes a salaried office holder of this state or the United States or who accepts any office in any political party or political organization shall by doing so vacate the member's office as a member of the commission.
  3. No member of the commission shall be a registered employer of a lobbyist in this state or a registered lobbyist in this state. Any member of the commission who becomes a registered employer of a lobbyist or a registered lobbyist in this state shall by doing so vacate the member's office as a member of the commission.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-304. Start of term — Rules.

  1. The term of office of each member of the commission shall begin on February 1, 2016.
  2. The commission shall have the authority to promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-305. Terms generally — Eligibility for reappointment.

  1. Except as otherwise provided in § 17-4-301(b) or § 17-4-306, the term of a member of the commission shall be six (6) years.
  2. Members shall be eligible for reappointment for a successive term.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-306. Vacancy filled as original appointment — Absence from meetings — Vacation of membership.

  1. A vacancy on the commission shall be filled in the same manner as the original appointment for the remainder of the unexpired term.
  2. A member of the commission who has four (4) unexcused absences from commission hearings during the member's term of office must vacate the member's office as a member of the commission.

Acts 2016, ch. 528, § 17; 2019, ch. 166, § 3.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Amendments. The 2019 amendment substituted “A member of the commission who has four (4) unexcused absences from commission hearings during the member’s term of office must vacate” for “Any member of the commission who misses four (4) meetings of the commission during the member's term of office shall by doing so vacate” in (b).

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

Acts 2019, ch. 166, § 4. April 18, 2019.

17-4-307. Compensation — Reimbursement for expenses.

  1. Members of the commission shall not receive any compensation for their services but shall be reimbursed for their official travel expenses pursuant to policies and guidelines promulgated by the supreme court.
  2. Subject to budgetary restrictions, the administrative office of the courts shall pay or reimburse the necessary expenses authorized or incurred by the commission in the performance of the duties pursuant to policies and guidelines promulgated by the supreme court.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-308. Vacancies — Governor's appointment of commission nominees — Requirement by governor for additional nominees — Term of judges herein appointed — Public meeting requirement — Hearings.

  1. After February 1, 2016, when a vacancy occurs in the office of chancellor, circuit court judge, criminal court judge, or judge of any other state trial court of record by death, resignation, retirement, or otherwise, the governor shall fill the vacancy by appointing one (1) of the three (3) persons nominated by the commission. The governor may require the commission to submit one (1) other panel of three (3) additional nominees. Within sixty (60) days following receipt of the additional panel of nominees, the governor shall fill the vacancy by appointing any one (1) of the six (6) nominees certified by the commission.
  2. The term of a judge appointed under this section shall expire on August 31 after the next regular August election occurring more than thirty (30) days after the vacancy occurs.
  3. The commission shall, at the earliest practicable date, hold a public meeting in the judicial district from which the vacancy is to be filled.
  4. Notice of the time, place, and purpose of the meeting shall be given by newspapers, radio news, or television news and by such other means as the commission deems proper.
  5. Any person shall be entitled to attend the meeting and express orally or in writing the citizen's approval of or objections to any suggested nominee for the trial court vacancy. Any licensed attorney may appear and make a statement, oral or written, in support of the attorney's own nomination.
  6. After one (1) public hearing, the commission may hold such additional interviews with the candidates as it deems necessary. The commission shall make independent investigation and inquiry to determine the qualifications of possible nominees for the trial court vacancy and shall endeavor to encourage qualified attorneys to accept nomination and agree to serve if appointed to the trial court vacancy. All hearings, interviews, and meetings of the commission shall be conducted publicly and shall comply with title 8, chapter 44, part 1. Deliberations among the commission members shall occur immediately after the conclusion of the interviews. The commission shall adjourn the public hearing and interviews and deliberate in executive session. The deliberations shall not be open to the public and shall not be required to comply with title 8, chapter 44, part 1. At the conclusion of deliberations among commission members, the commission shall reconvene the public hearing for purposes of voting. When selecting nominees, commission members shall vote anonymously by written ballots, but such ballots shall be collected, announced, and tallied at the meeting by the presiding officer, and a majority of those present and voting shall decide questions. After receiving the commission's panel or panels of nominees, but prior to making an appointment pursuant to subsection (a), the governor shall direct the Tennessee bureau of investigation or other appropriate agencies to perform appropriate financial and criminal background investigations and inquiries of the prospective appointees, and the governor shall review and assess the results of the background investigations and inquiries.
    1. The application for the position of trial judge shall contain an authorization form permitting the commission to request from the board of judicial conduct and the board of professional responsibility any information, records, files, or other documents, whether in an electronic format or written form, that the board maintains on the applicant. Signing the authorization form has the effect of waiving any statutory or common law confidentiality that may attach to those documents.
    2. If an applicant signs the authorization form, upon request of the commission, the board of judicial conduct and the board of professional responsibility shall furnish the commission with all information, records, files, or other documents, whether in an electronic format or written form, that the board maintains on a person who applies to be a candidate to fill a trial court vacancy.
  7. As soon as practicable, and no later than sixty (60) days from receipt of written notice from the governor that a vacancy has occurred, the commission, with the assent of a majority of all the members to which it is entitled under § 17-4-301(a), shall select three (3) persons whom the commission deems best qualified and available to fill the vacancy, and shall certify the names of the three (3) persons to the governor as nominees for the trial court vacancy. However, if the commission is reliably informed that a vacancy is impending for any other reason, then the commission may meet, select such persons, and certify the names of the nominees to the governor prior to actual receipt of written notice from the governor that a vacancy has occurred.
  8. If the judicial district is one (1) of the five (5) smallest judicial districts according to the 2010 federal census or any subsequent federal census, the commission may submit two (2) names to the governor, although the governor may require the commission to submit one (1) other panel of two (2) additional nominees.
  9. At the next regular August election occurring more than thirty (30) days after the vacancy occurs, the qualified voters of the district shall elect a candidate to fill the remainder of the unexpired term or a complete term, as provided in the general election law in title 2; provided, however, the qualifying deadline for candidates to fill the vacancy shall be determined by the date of the vacancy as follows:
    1. If the vacancy occurs on or before the tenth day prior to the regular qualifying deadline, then the regular qualifying deadline shall apply;
    2. If the vacancy occurs after the tenth day before the qualifying deadline but on or before the thirty-eighth day prior to the next regular August election, then the qualifying deadline shall be twelve o'clock (12:00) noon, prevailing time, on the tenth day after the vacancy is created;
    3. If the vacancy occurs after the thirty-eighth day but on or before the thirty-first day prior to the next regular August election, then the qualifying deadline shall be twelve o'clock (12:00) noon, prevailing time, on the twenty-eighth day before the election; and
    4. Candidates qualifying under subdivisions (j)(2) and (3) must withdraw no later than twelve o'clock (12:00) noon, prevailing time, on the third day after the qualifying deadline; however, no candidate shall withdraw after twelve o'clock (12:00) noon, prevailing time, on the twenty-eighth day before the election.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

For tables of population of Tennessee municipalities, and for U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

Attorney General Opinions. 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 T.C.A. § 16-2-512 to the extent possible, even though the Judicial Council established by title 16, chapter 21, no longer exists. OAG 18-21, 2018 Tenn. AG LEXIS 20 (5/24/2018).

17-4-309. Nominees — requirements.

All nominees of the trial court vacancy commission shall be attorneys who are duly licensed to practice law in this state and who are fully qualified under the constitution and statutes of this state to fill the office for which they are nominated.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-310. Appointment by governor when commission fails to provide list of nominees — Expiration of term.

  1. If the trial court vacancy commission does not furnish a list of three (3) nominees to the governor within sixty (60) days after receipt of written notice from the governor that a vacancy has occurred, then the governor may fill the vacancy by appointing any person who is duly licensed to practice law in this state and who is fully qualified under the constitution and statutes of this state to fill the office.
  2. The term of a judge appointed under this section shall expire on August 31 after the next regular August election occurring more than thirty (30) days after the vacancy occurs.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

17-4-311. Maintenance of records by administrative office of the courts — Notification of time and place of meetings.

The administrative office of the courts shall keep and maintain all records of the trial court vacancy commission as well as furnish the commission with any other secretarial or clerical services or assistance it may require. It is further the duty of the administrative office of the courts to notify all commission members of the date, time, and place of any commission meetings.

Acts 2016, ch. 528, § 17.

Compiler's Notes. For the Preamble to the act concerning an orderly procedure for the appointment, confirmation, and retention of appellate court judges as required by Tennessee Constitution, Article VI, Section 3, please refer to Acts 2016, ch. 528.

Effective Dates. Acts 2016, ch. 528, § 23. January 28, 2016.

Chapter 5
Board of Judicial Conduct

Part 1
General Provisions

17-5-101. Intent of chapter.

The regulation of judicial conduct is critical to preserving the integrity of the judiciary and enhancing public confidence in the judicial system. This chapter is intended to provide an orderly and efficient method for making inquiry into the physical, mental, and moral fitness of any Tennessee judge; the judge's manner of performance of duty; and the judge's commission of any act that reflects unfavorably upon the judiciary of the state or brings the judiciary into disrepute or that may adversely affect the administration of justice in this state. This chapter further is intended to provide a process by which appropriate sanctions may be imposed.

Acts 2019, ch. 496, § 1.

Compiler's Notes. The code of judicial conduct is compiled in Tenn. Sup. Ct. R. 10.

Former Title 17, Chapter 5, Part 1, §§ 17-5-10117-1-503, (Acts 1979, ch. 356, §§ 1-3; T.C.A., § 17-801; T.C.A., § 17-802; T.C.A., § 17-803; Acts 1983, ch. 17, § 1; Acts 1995, ch. 208, §§ 1, 2; 2002, ch. 564, §§ 1-3; repealed by Acts 2019, ch. 469, § 1, effective July 1, 2019), concerned general provisions of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Cross-References. Impeachment of judges or chancellors, title 8, ch. 46.

Law Reviews.

Judicial Selection — The Tennessee Experience (N. Houston Parks), 7 Mem. St. U.L. Rev. 615.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. L. Rev. 191.

Attorney General Opinions. Constitutionality of court of the judiciary, OAG 87-02 (1/7/87) (decided under former T.C.A. § 17-5-101).

Civil causes of action against state trial judges, OAG 99-001 (1/19/99) (decided under former T.C.A. § 17-5-101).

Collateral References.

Substitution of judge in state criminal trial. 45 A.L.R.5th 591.

NOTES TO DECISIONS

1. Constitutionality.

The general assembly did not violate the separation of powers clause of the state constitution in creating the court of the judiciary, authorizing it to recommend the removal of judges and in providing for an appellate review of any such recommendation. In re Murphy, 726 S.W.2d 509, 1987 Tenn. LEXIS 858 (Tenn. 1987) (decided under former T.C.A. § 17-5-101).

The legislative purpose expressed in former T.C. § 17-5-101 prevented the court of the judiciary from being subject to Tenn. Const., art. VI, § 4. It was not a circuit or chancery court or other inferior court and it was not “assigned” any district in this state. It was clearly and completely outside the state court system as established by art. VI of the constitution. In re Murphy, 726 S.W.2d 509, 1987 Tenn. LEXIS 858 (Tenn. 1987) (decided under former T.C.A. § 17-5-101).

17-5-102. Applicability of chapter.

  1. This chapter applies to:
    1. All Tennessee judges, including, but not limited to, appellate, trial, general sessions, probate, juvenile, and municipal judges, senior judges, claims commissioners, and all other judges sitting on or presiding over any court created by the general assembly or by the express or implied authority of the general assembly;
    2. All persons for their conduct while sitting or presiding over any judicial proceeding, including, but not limited to, persons sitting by special appointment; and
    3. Candidates for judicial office, as defined by the Code of Judicial Conduct, Rule 10 of the Rules of the Tennessee Supreme Court.
  2. This chapter does not apply to administrative law judges.
  3. This chapter regulates judicial behavior, not judicial decision-making.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 1, §§ 17-5-10117-1-503, (Acts 1979, ch. 356, §§ 1-3; T.C.A., § 17-801; T.C.A., § 17-802; T.C.A., § 17-803; Acts 1983, ch. 17, § 1; Acts 1995, ch. 208, §§ 1, 2; 2002, ch. 564, §§ 1-3), concerned general provisions of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

17-5-103. Liberal construction of chapter.

This chapter must be liberally construed to accomplish the declared purposes and intents set forth in this chapter.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 1, §§ 17-5-10117-1-503, (Acts 1979, ch. 356, §§ 1-3; T.C.A., § 17-801; T.C.A., § 17-802; T.C.A., § 17-803; Acts 1983, ch. 17, § 1; Acts 1995, ch. 208, §§ 1, 2; 2002, ch. 564, §§ 1-3), concerned general provisions of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Part 2
Creation and Organization

17-5-201. Members of board of judicial conduct — Chair and vice chair — Investigative panels and hearing panels — Promulgation of rules.

  1. As of July 1, 2019, the existing membership of the Tennessee board of judicial conduct is vacated and reconstituted to consist of sixteen (16) members as follows:
    1. Two (2) current or former trial judges, to be appointed by the Tennessee trial judges association;
    2. One (1) current or former general sessions court judge, to be appointed by the Tennessee general sessions judges conference;
    3. One (1) current or former municipal court judge, to be appointed by the Tennessee municipal judges conference;
    4. One (1) current or former juvenile court judge, to be appointed by the Tennessee council of juvenile and family court judges;
    5. One (1) current or former court of appeals or court of criminal appeals judge, to be appointed by the Tennessee supreme court;
    6. Two (2) members who are attorneys licensed to practice law in this state but who are not current or former judges, to be appointed by the governor;
    7. Four (4) members, including three (3) who are neither a judge nor an attorney and one (1) who is a current or former judge, to be appointed by the speaker of the house of representatives; and
    8. Four (4) members, including three (3) who are neither a judge nor an attorney and one (1) who is a current or former judge, to be appointed by the speaker of the senate.
    1. All appointments to the board must be made by July 1, 2019.
    2. In order to stagger the terms of the newly appointed board members, initial appointments must be made as follows:
      1. The members appointed under subdivisions (a)(1)-(5) serve initial terms of one (1) year, which expire on June 30, 2020;
      2. The members appointed under subdivision (a)(6) and the current or former judges appointed under subdivisions (a)(7) and (8) serve initial terms of two (2) years, which expire on June 30, 2021; and
      3. The members appointed under subdivisions (a)(7) and (8) who are neither judges nor attorneys serve initial terms of three (3) years, which expire on June 30, 2022.
    3. Following the expiration of members' initial terms as prescribed in subdivision (b)(2), all terms are for three (3) years, to begin on July 1 and terminate on June 30, three (3) years thereafter.
    4. Each member of the board appointed under subdivisions (b)(2)(A) and (B) may be appointed to two (2) additional consecutive three-year terms. Each member appointed under subdivision (b)(2)(C) may be appointed to one (1) additional consecutive three-year term.
    5. A member whose initial term is created by a vacancy and who has served in the position for less than three (3) years is eligible to serve two (2) consecutive three-year terms following the expiration of the term in which the vacancy occurred. Vacancies on the court for an unexpired term must be filled for the remainder of the term in the same manner that original appointments are made, but are for the duration of the unexpired term only. Vacancies are filled in the same manner that original appointments are made.
    6. A member who has served the maximum term is eligible for reappointment after the expiration of three (3) years.
  2. The board shall select:
    1. Its own chair from among the current or former judges serving on the board, who shall serve as a direct liaison to the members of the general assembly; and
    2. Its own vice chair.
      1. The chair shall divide the board into:
        1. Five (3) investigative panels of three (3) members each, with each investigative panel to be composed of at least one (1) member who is a current or former judge; and
        2. Three (3) hearing panels of five (5) members each, with two (2) hearing panels to each be composed of three (3) non-judicial members and two (2) members who are current or former judges, and one (1) hearing panel to be composed of two (2) non-judicial members and three (3) members who are current or former judges.
      2. The chair shall not serve as a permanent member of an investigative panel or hearing panel but may serve as a member of a panel on a temporary basis to fill a vacancy.
      3. Membership on the panels may rotate in a manner determined by the chair; however, no members may sit on both the hearing and investigative panels for the same proceeding.
    1. A hearing panel has the duty and authority to rule on prehearing motions, conduct hearings on formal charges, make findings and conclusions, impose sanctions, or dismiss the case.
      1. An investigative panel has the duty and authority to:
        1. Review the recommendations of the disciplinary counsel after a preliminary investigation and either authorize a full investigation or dismiss the complaint; and
        2. Review the recommendations of the disciplinary counsel after a full investigation and approve, disapprove, or modify the recommendations as provided in § 17-5-303(c)(3).
      2. The investigative panel shall require a full investigation when a motion to dismiss a complaint fails to receive a unanimous vote from the panel or where a motion to authorize a full investigation passes by a majority vote of the panel.
    2. An attorney member of the board shall not sit on an investigative or hearing panel if the attorney has ever appeared before the judge against whom the complaint is filed.
        1. (a)  A current or former judge who serves on the board and is the subject of a full investigation by the board or is a party to a hearing before the board must recuse himself or herself from the board pending the completion of such action, with the vacancy to be filled for the duration of the recusal only.
        2. A citizen member of the board must recuse himself or herself to avoid any impropriety, appearance of impropriety, or conflict of interest relating to the person's duties as a board member and matters that may come before the board.
      1. A current or former judge whose conduct results in the board taking public disciplinary action against the judge will result in the judge's automatic dismissal from the board, creating a vacancy to be filled by the appropriate appointing authority.
      2. If a member recuses himself or herself or is dismissed pursuant to this subdivision (d)(5), all board matters may be heard by the remaining members of the board or, at the option of the members, a temporary replacement may be designated from the board by a majority vote of such members to sit on any investigative or hearing panel the recused or dismissed member was on.
  3. The board shall sit at such times and in such places as it may, from time to time, deem expedient.
  4. The board may promulgate rules regulating the practice and procedure before the board. The rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  5. The clerk of the supreme court serves as the clerk of the board, and shall keep such records, minutes, and dockets as the board from time to time prescribes.
  6. Members of the board receive no compensation for their services; however, they are reimbursed for food, lodging, and travel expenses pursuant to policies and guidelines promulgated by the supreme court. All expenses for which reimbursement is allowed under this section must be submitted by the members of the board to the administrative director of the courts upon forms provided and prescribed by that officer.
  7. The appointing authorities, in making their appointments, shall strive to ensure the makeup of the board reflects the diversity of persons in Tennessee.

A current or former judge who is subject to a deferred discipline agreement must recuse himself or herself from the board for the duration of the agreement, with the vacancy to be filled for the duration of the recusal only.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 2, §§ 17-5-20117-5-208, (Acts 1979, ch. 356, § 4, 5, 7-10; T.C.A., § 17-804; T.C.A., § 17-805; T.C.A., § 17-807; T.C.A., § 17-808; T.C.A., § 17-809; T.C.A., § 17-810; Acts 1981, ch. 425, §§ 1, 2; Acts 1993, ch. 66, § 39; 1993, ch. 196, § 8; 1995, ch. 208, §§ 3-7, 18; 1999, ch. 151, § 1; 2004, ch. 914, §§ 3b, 3c; 2012, ch. 819, § 1, 3, 4; 2014, ch. 858, §§ 3-6; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019) concerned creation and organization of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Cross-References. Meetings, Tenn. R. Ct. of Judiciary 1.

Rules of Practice and Procedure of the Tennessee Court of the Judiciary, Tenn. R. Ct. of Judiciary 1-8.

Recusal, Tenn. R. Ct. of Judiciary 3.

NOTES TO DECISIONS

1. Constitutionality.

The legislative purpose expressed in former § 17-5-101 prevented the court of the judiciary from being subject to Tenn. Const., art. VI, § 4. It was not a circuit or chancery court or other inferior court and it was not “assigned” any district in this state. It was clearly and completely outside the state court system as established by art. VI of the constitution. In re Murphy, 726 S.W.2d 509, 1987 Tenn. LEXIS 858 (Tenn. 1987).

Collateral References.

Disqualification or recusal of judge due to comments at continuing legal education (cle) seminar or other educational meetings. 49 A.L.R.6th 93.

17-5-202. Monthly and quarterly reports — Records retention policy.

    1. By the twentieth day of each month, the board shall compile and transmit to the judiciary committee of the house of representatives and the judiciary committee of the senate a report containing at least the following information for the previous month:
      1. The number and category of complaints opened;
      2. The number and category of complaints closed; and
      3. The disposition of the complaints closed by category.
    2. The monthly report must also contain a cumulative, year-to-date total for the complaints reported in subdivisions (a)(1)(A)–(C).
  1. By the twentieth day of January, April, July, and October of each year, the board shall compile and transmit to the judiciary committee of the house of representatives and the judiciary committee of the senate a report containing at least the following information for the prior three-month period:
    1. The number of complaints opened;
    2. The number of complaints closed;
    3. The disposition of complaints closed;
    4. The number of complaints pending;
    5. The number of complaints for which probable cause has been found;
    6. The number of complaints for which formal charges have been filed based on a recommendation by an investigative panel, including the nature of the charge, the names of the complainant or complainants, and the judge against whom the complaint is filed;
    7. The nature of any complaint filed according to the following categories:
      1. Failure to comply with the law;
      2. Bias, prejudice, and unfairness;
      3. Discourtesy;
      4. Abuse of office;
      5. Delay;
      6. Ex parte communication;
      7. Disability;
      8. Political violation;
      9. Recusal; and
      10. Miscellaneous;
    8. The type of judge against whom a complaint is filed by category; and
    9. A list of votes taken by each board member as follows:
      1. The member's name;
      2. The number of times the member voted to dismiss a complaint while on an investigative panel; and
      3. The number of times the member voted to authorize an investigation while on an investigative panel.
  2. The quarterly reports must contain a cumulative, year-to-date total of the information compiled in subsection (b).
  3. The October report must also contain a five-year statistical comparison of the prior five (5) fiscal years for the same categories.
  4. The board shall promulgate rules to establish a formal records retention policy and shall review the policy on an annual basis to determine if changes should be made. Such rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 2, §§ 17-5-20117-5-208, (Acts 1979, ch. 356, § 4, 5, 7-10; T.C.A., § 17-804; T.C.A., § 17-805; T.C.A., § 17-807; T.C.A., § 17-808; T.C.A., § 17-809; T.C.A., § 17-810; Acts 1981, ch. 425, §§ 1, 2; Acts 1993, ch. 66, § 39; 1993, ch. 196, § 8; 1995, ch. 208, §§ 3-7, 18; 1999, ch. 151, § 1; 2004, ch. 914, §§ 3b, 3c; 2012, ch. 819, § 1, 3, 4; 2014, ch. 858, §§ 3-6; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019) concerned creation and organization of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

17-5-203. Notice provided to speakers.

  1. The chair of the board shall provide the speaker of the senate and the speaker of the house of representatives with the name, type of judge, judicial district, if applicable, the reason for the reprimand, and the number of previous reprimands within five (5) business days of the occurrence of each of the following actions:
    1. A judge receives a second or subsequent public reprimand for conduct occurring during the period of time the person is a sitting judge;
    2. A judge receives a second or subsequent private reprimand for conduct within the same misconduct category set out in § 17-5-202(b)(7) occurring during any eight-year term the person holds the office of judge; or
    3. A judge receives a third or subsequent private reprimand for conduct within any of the misconduct categories set out in § 17-5-202(b)(7) occurring during any eight-year term the person holds the office of judge.
    1. The notice provided to the speakers pursuant to subdivision (a)(1) is a public record.
    2. The notice provided to the speakers pursuant to subdivision (a)(2) or (a)(3) remains confidential unless the general assembly opens an investigation of a judge pursuant to article VI, § 6 or article V of the Tennessee Constitution.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 2, §§ 17-5-20117-5-208, (Acts 1979, ch. 356, § 4, 5, 7-10; T.C.A., § 17-804; T.C.A., § 17-805; T.C.A., § 17-807; T.C.A., § 17-808; T.C.A., § 17-809; T.C.A., § 17-810; Acts 1981, ch. 425, §§ 1, 2; Acts 1993, ch. 66, § 39; 1993, ch. 196, § 8; 1995, ch. 208, §§ 3-7, 18; 1999, ch. 151, § 1; 2004, ch. 914, §§ 3b, 3c; 2012, ch. 819, § 1, 3, 4; 2014, ch. 858, §§ 3-6; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned creation and organization of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Part 3
Jurisdiction and Proceedings

17-5-301. Powers of board — Disciplinary counsel.

  1. The board is given broad powers to investigate, hear, and determine charges sufficient to warrant sanctions or removal, and to carry out its duties in all other matters as set forth in this chapter.
  2. The board is specifically authorized to administer oaths and affirmations, to issue process to compel the attendance of witnesses and the production of evidence, to conduct hearings, and to use, exercise, and enjoy any of the powers normally exercised by courts of record in this state. The Tennessee Rules of Civil Procedure are applicable, and the Tennessee Rules of Evidence govern the presentation of proof. The board shall conduct discovery and review the materials collected in camera; provided, that only materials relevant to the investigation shall be made public.
  3. No action of the board is valid unless concurred in by a majority of the members voting upon the action.
  4. The attorney serving as disciplinary counsel for the board immediately preceding July 1, 2019 shall relinquish the position and a new disciplinary counsel is to be appointed by the board. The disciplinary counsel shall serve at the pleasure of the board and may be removed by the board. The disciplinary counsel shall report to the board upon appointment. The disciplinary counsel may employ additional attorneys or staff for administrative support, subject to the approval of the board. Compensation for the disciplinary counsel and additional personnel is fixed by the board. This section shall not be construed to preclude disciplinary counsel employed by the board of professional responsibility from acting as disciplinary counsel and the staff and physical resources of the board of professional responsibility from being utilized, with the approval of the court, to assist in the performance of the disciplinary counsel's functions effectively and without delay. The board shall compensate the board of professional responsibility for the use of any such staff and physical resources.
  5. The disciplinary counsel has the authority and duty to:
    1. Receive and screen complaints, refer complaints to other agencies when appropriate, conduct preliminary investigations, make recommendations to the investigative panel of the board and, upon authorization, conduct full investigations, notify complainants about the status and disposition of their complaints, make recommendations to the investigative panel on the disposition of complaints after full investigation, file formal charges subject to approval of the investigative panel when directed to do so by the investigative panel, and prosecute formal charges;
    2. Maintain permanent records of the operations of the disciplinary counsel's office, including receipt of complaints, screening, investigation, and filing of formal charges in judicial discipline and incapacity matters;
    3. Draft decisions, orders, reports, and other documents on behalf of the hearing and investigative panels if directed by the board;
    4. Compile statistics to aid in the administration of the system, including, but not limited to, a log of all complaints received, investigative files, and statistical summaries of docket processing and case dispositions, consistent with § 17-5-202;
    5. Seek investigative assistance from the Tennessee bureau of investigation, or from any district attorney general and, in appropriate cases, employ private investigators or experts, as necessary, to investigate and process matters before the board. Such action may only be taken in concurrence with the applicable investigative panel; and
    6. Perform other duties at the direction of a majority of the board.
    1. The board has the power to impose any, or any combination, of the following:
      1. Suspension without impairment of compensation for such period as the board determines;
      2. Imposition of limitations and conditions on the performance of judicial duties, including the issuance of a cease and desist order;
      3. Private reprimand by the investigative panel. A private reprimand, whether imposed by the board or by an investigative panel, may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of the sanctions to be imposed;
      4. Entry into a deferred discipline agreement;
      5. Public reprimand; and
      6. Entry of judgment recommending removal of the judge from office.
    2. Disciplinary counsel fees and costs related to the hearing by a hearing panel shall not be taxed against the judge unless the sanction imposed requests the judge's removal from office.
  6. For purposes of this part, the following definitions apply:
    1. “Deferred discipline agreement” means a response to misconduct that is minor and can be addressed through treatment, training, or a rehabilitation program under which the judge agrees with the recommendation of the investigative panel of the board to undergo evaluation or treatment, or both; participate in educational programs; or take any other corrective action. Any other disciplinary sanction arising from the same conduct is suspended during the term of a deferred discipline agreement, and no further sanction may be imposed upon the successful completion of the deferred disciplinary agreement by the judge. The disciplinary counsel may proceed with other appropriate action upon a judge's failure to comply with the disciplinary agreement;
    2. “Private reprimand” means a form of non-public discipline imposed by a letter that details the finding of minor judicial misconduct and enumerates the reasons that such conduct is improper or brings discredit upon the judiciary or the administration of justice; and
    3. “Public reprimand” means a private reprimand that is released to the public.
  7. A sanction imposed by the board does not violate the prohibition of article VI, § 7 of the Tennessee Constitution.
  8. The board or the investigatory panel shall consider the following criteria in determining the sanction or combination of sanctions appropriate for the level of culpability involved in the judge's misconduct:
    1. Whether the misconduct is an isolated instance or evidences a pattern of conduct;
    2. The nature, extent, and frequency of occurrence of the acts of misconduct;
    3. Whether the misconduct occurred in or out of the courtroom;
    4. Whether the misconduct occurred while the judge was acting in an official capacity;
    5. Whether the judge has acknowledged or recognized the occurrence, nature, and impropriety of the acts;
    6. Whether the judge has made an effort to change or modify the conduct;
    7. The level of sanction, if any, previously rendered against other judges for the same conduct;
    8. Whether there have been prior complaints about the judge, except where prior complaints have been found to be frivolous, unfounded, or without jurisdiction pursuant to § 17-5-304;
    9. The effect of the misconduct upon the integrity of, and respect for, the judiciary;
    10. The extent to which the judge exploited the judicial position for personal gain or satisfaction; and
    11. The sanction or sanctions imposed against other judges for the same or similar misconduct under the same or similar circumstances.
    1. The board may consider the following offenses in determining the sanction or combination of sanctions appropriate for the level of culpability involved in the judge's conduct:
      1. Willful misconduct relating to the official duties of the office;
      2. Willful or persistent failure to perform the duties of the office;
      3. A violation of the code of judicial conduct as set out in Rule 10 of the Rules of the Tennessee Supreme Court;
      4. A violation of the Tennessee Rules of Professional Conduct as set out in Rule 8 of the Rules of the Tennessee Supreme Court, as is applicable to judges;
      5. A persistent pattern of intemperate, irresponsible, or injudicious conduct;
      6. A persistent pattern of discourtesy to litigants, witnesses, jurors, court personnel, or lawyers;
      7. A persistent pattern of delay in disposing of pending litigation; and
      8. Any other conduct calculated to bring the judiciary into public disrepute or to adversely affect the administration of justice.
    2. The legal analysis, findings of fact, and conclusions of law of a written opinion or order by a judge are not grounds for sanction under this subsection (j); provided, that the personal views of a judge contained within a written opinion or order by a judge are not protected by this subdivision (j)(2).

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-30117-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Cross-References. Investigation and disposition of complaints, Tenn. R. Ct. of Judiciary 4.

Rule Reference. This section is referred to in Rule 6, § 3 and Rule 7, § 2 of the Rules of Practice and Procedure of the Tennessee Court of the Judiciary.

Attorney General Opinions. Civil causes of action against state trial judges, OAG 99-001 (1/19/99) (decided under former T.C.A. § 17-5-301).

Impairment of judicial compensation.  OAG 10-112, 2010 Tenn. AG LEXIS 118 (11/8/10) (decided under former T.C.A. § 17-5-301).

NOTES TO DECISIONS

1. Discipline Proper.

Upon de novo review under T.C.A. § 17-5-310(b)(1), the Court of the Judiciary acted properly in considering the factors under former T.C.A. § 17-5-301(i) in deciding that the appropriate sanctions to be imposed on a judge included a 90-day suspension without impairment of compensation, a requirement to decide all future cases within 30 calendar days of the hearing, and the completion of judicial ethics training. In re Bell, 344 S.W.3d 304, 2011 Tenn. LEXIS 577 (Tenn. June 10, 2011) (decided under former T.C.A. § 17-5-301).

2. Initiation of Investigation.

Former T.C.A. § 17-5-304 authorized the court to begin an investigation or a formal hearing upon either the sworn complaint of a party or upon knowledge of misconduct of judges that came to the attention of the court by any means of reliable information. In re Murphy, 726 S.W.2d 509, 1987 Tenn. LEXIS 858 (Tenn. 1987) (decided under former T.C.A. § 17-5-304).

3. Notice.

Pursuant to former T.C.A. § 17-5-304(c)(1)(A), a judge who was the subject of a disciplinary proceeding received sufficient notice of the charges against him where the notice identified the factual allegations under investigation, cited the canons that were allegedly violated, and stated that the investigation could be expanded if appropriate.  In re Bell, 344 S.W.3d 304, 2011 Tenn. LEXIS 577 (Tenn. June 10, 2011) (decided under former T.C.A. § 17-5-304).

17-5-302. Investigation and action if reason to believe judge is disabled.

  1. The board is authorized, on its own motion, or pursuant to the complaint of a person having reason to believe a judge is disabled, to investigate and take appropriate action, including recommendation of removal from office, in any case wherein an active judge is suffering from any disability, physical or mental, that is or is likely to become permanent and that would substantially interfere with the prompt, orderly, and efficient performance of the judge's duties.
  2. All complaints made under this section are confidential and privileged.
  3. If the board recommends removal from office under this section, the aggrieved judge may appeal to the supreme court as provided in § 17-5-309.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Law Reviews.

Ethical Obligations of Judges (Joe G. Riley), 23 Mem. St. U.L. Rev. 507 (1993).

Ethical Requirements for Judicial Candidates (Joe G. Riley), 26 No. 3, Tenn. B.J. 12 (1990).

Collateral References.

Gestures, facial expressions, or other nonverbal communication of trial judge in criminal case as ground for relief. 45 A.L.R.5th 531.

Judges 11(4).

Attorney General Opinions. Civil causes of action against state trial judges, OAG 99-001 (1/19/99) (decided under former T.C.A. § 17-5-302)..

Cross-References. Confidentiality of public records, § 10-7-504.

17-5-303. Investigations of complaints by disciplinary counsel — Recommendation by disciplinary counsel — Action by investigative panel.

  1. The disciplinary counsel shall evaluate all information coming to the disciplinary counsel's attention by complaint, upon the request of any member of the board, or from any other credible source that alleges judicial misconduct or incapacity within fourteen (14) days of the date of a written complaint being filed, a request being submitted, or the receipt of information from a credible source alleging judicial misconduct or incapacity.
  2. In instances in which a complaint is filed, the complaint must be submitted in writing, must contain the name of the complainant, must be signed by the complainant, and must allege specific facts directly relating to the alleged misconduct or incapacity of the judge in question. The disciplinary counsel shall review all complaints and if, in the judgment of the disciplinary counsel, the complaint establishes probable cause that the conduct complained of occurred and violates § 17-5-301(j), the disciplinary counsel shall conduct a preliminary investigation, subject to review by the investigative panel pursuant to subdivision (c)(3). The preliminary investigation must be completed within sixty (60) days of the receipt of the complaint, unless the chair authorizes additional time for the completion of the investigation. If the disciplinary counsel believes the complaint fails to establish probable cause that either the conduct occurred or the conduct constituted a violation of § 17-5-301(j), the disciplinary counsel shall recommend dismissal of the complaint or, if appropriate, refer the matter to another agency. The recommendation for dismissal is subject to review by the investigative panel pursuant to subdivision (c)(3).
    1. The disciplinary counsel may conduct interviews and examine evidence to determine whether the specific facts alleged are true and, if so, whether the facts establish probable cause that a violation of § 17-5-301(j) has occurred; however, the disciplinary counsel shall not issue a subpoena to obtain testimony or evidence until the investigative panel authorizes a full investigation pursuant to subdivision (c)(3).
    2. If the disciplinary counsel believes there is evidence supporting the allegations against a judge, the disciplinary counsel shall recommend to the investigative panel assigned to the case that the panel authorize a full investigation. The disciplinary counsel may also recommend a full investigation when the disciplinary counsel believes there is evidence that would establish probable cause that a violation of § 17-5-301(j) has occurred and such evidence could be obtained by subpoena or further investigation. In all other cases, the disciplinary counsel must recommend that the matter be dismissed. The disciplinary counsel shall make the recommendation to the investigative panel within fourteen (14) days of the disciplinary counsel's completion of the preliminary investigation.
    3. The investigative panel shall review the disciplinary counsel's recommendations and either dismiss the complaint or authorize a full investigation within fourteen (14) days of receipt of the disciplinary counsel's recommendation. The disciplinary counsel has no authority to dismiss a complaint without the review of and approval by the investigative panel.
    1. Within fourteen (14) days after the investigative panel authorizes a full investigation, the disciplinary counsel shall give the following notice to the judge by certified mail:
      1. A specific statement of the allegations being investigated and the canons or rules allegedly violated, with the provision that the investigation can be expanded, if appropriate;
      2. The judge's duty to respond;
      3. The judge's opportunity to meet with the disciplinary counsel; and
      4. The name of the complainant, unless the investigative panel determines that there is good cause to withhold such information.
    2. The investigative panel may defer the giving of notice; however, notice must be given pursuant to this section before making a determination other than dismissal of the complaint.
    3. The disciplinary counsel shall request the judge to file a written response within fourteen (14) days after service of the notice.
    1. The disciplinary counsel shall complete its investigation within thirty-five (35) days of being authorized by the investigative panel. The disciplinary counsel shall notify the investigative panel of disciplinary counsel's recommendation within seven (7) days of completion of the disciplinary counsel's investigation. The disciplinary counsel may recommend to the investigative panel any, or any combination, of the following:
      1. Dismissal;
      2. Private reprimand, deferred discipline agreement, public reprimand, or any other sanction authorized under § 17-5-301(f)(1);
      3. The filing of formal charges;
      4. Referral to an appropriate agency; or
      5. A stay of the thirty-five-day period for completing the investigation as prescribed in this subdivision (e)(1).
    2. The investigative panel shall act on the disciplinary counsel's recommendation within ten (10) days of its receipt. The investigative panel may adopt, reject, or modify the recommendation of the disciplinary counsel. If the investigative panel finds a violation for which the imposition of a sanction is not warranted, it may dismiss the complaint. If the investigative panel finds that there is reasonable cause to believe the judge committed a judicial offense:
      1. It may direct the disciplinary counsel to file formal charges;
        1. It may propose any, or any combination, of the following to the judge:
          1. Private reprimand;
          2. Deferred discipline agreement;
          3. Public reprimand; or
          4. Any other sanction authorized under § 17-5-301(f)(1); and
        2. If the judge consents, the investigative panel shall impose the sanction or implement the deferred sanction agreement; or
      2. If the judge does not consent to the proposed sanction or the deferred discipline agreement, the investigative panel may direct the disciplinary counsel to either file formal charges or dismiss the complaint.
  3. If the investigative panel finds there is reasonable cause to believe the judge committed a judicial offense, and the investigative panel directs the disciplinary counsel to file a formal charge, then upon the filing of the formal charge, all records, actions, and proceedings of the board shall be subject to § 10-7-503 and title 8, chapter 44, except that the board may deliberate in private.
  4. Upon the filing of an indictment, presentment, or information charging a judge with a felony under the law of any state or under federal law, the board may immediately place the judge on interim suspension.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Cross-References. Investigation and disposition of complaints, Tenn. R. Ct. of Judiciary 4.

NOTES TO DECISIONS

1. Duty to Respond to Complaint.

Judge's delay in responding to proceedings against the judge initiated in the court of the judiciary violated the code of judicial conduct and warranted public reprimand. In re Brown, 879 S.W.2d 801, 1994 Tenn. LEXIS 170 (Tenn. 1994) (decided under former T.C.A. § 17-5-305).

17-5-304. Investigation and dismissal of groundless complaint.

If it is determined that the charges against a judge are frivolous or unfounded, or beyond the permissible scope of the board's inquiry, the matter will be closed and all documents, records, and papers pertaining to the charges must be destroyed and the board's docket must recite the investigation and dismissal of a groundless complaint.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

17-5-305. Immunity of members of board, disciplinary counsel, and their staff.

Members of the board, the disciplinary counsel, and their staff are immune from civil suit for all conduct in the course of their official duties, except in cases of gross negligence or willful misconduct.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

17-5-306. Formal charges — Answer — Failure to appear — Stated sanction.

  1. When, in the preliminary judgment of the investigative panel, there is probable cause to believe the judge under investigation is guilty of one (1) or more of the offenses under § 17-5-301(j), or is suffering from a disability as set forth in § 17-5-302, it is the duty of disciplinary counsel to give the judge under investigation written notice of the details of the formal charges.
  2. The formal charges must give fair and adequate notice of the nature of the alleged misconduct or incapacity. The disciplinary counsel shall file the formal charges with the board. The disciplinary counsel shall cause a copy of the formal charges to be served on the judge or the judge's counsel by certified mail and shall file proof of service with the board.
  3. The judge has fourteen (14) days from the date of receipt of written notice of the formal charge to file an answer with the board and serve a copy on the disciplinary counsel.
  4. A judge who raises a defense based on a mental or physical condition waives any medical privilege.
  5. If the judge fails to answer the formal charges, then the failure to answer constitutes an admission of the factual allegations.
  6. If the judge fails to appear when specifically ordered to do so by the hearing panel or the board, the judge is deemed to have admitted the factual allegations that were to be the subject of the appearance and to have conceded the merits of any motion or recommendation to be considered at the appearance. Absent good cause, the hearing panel or board shall not continue or delay proceedings because of the judge's failure to appear.
    1. The judge may agree with the disciplinary counsel that the judge shall admit to any or all of the formal charges in exchange for a stated sanction at any time after the filing of formal charges and before final disposition. The agreement must be submitted to the hearing panel assigned to the case, which shall either:
      1. Reject the agreement; or
      2. Approve the agreement and enter the order to sanction the judge.
    2. If the stated sanction is rejected by the hearing panel, the agreement must be withdrawn and cannot be used against the judge in any proceedings.
    3. A judge who consents to a stated sanction shall sign an affidavit stating that:
      1. The judge consents to the sanction;
      2. The consent is freely and voluntarily rendered;
      3. There is a pending proceeding involving allegations of misconduct, which must be specifically set forth in the affidavit; and
      4. The facts set forth in the affidavit are true.
    4. The affidavit must be filed with the board upon its approval by the hearing panel. The affidavit remains confidential until it is filed with the board. The final order of sanction must be based on the formal charges and the conditional admission.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

17-5-307. Hearing — Quorum — Clear and convincing evidence.

  1. The matter must be set for hearing within thirty (30) days from the date the answer is filed. The hearing is a full evidentiary hearing at which the judge is entitled to due process, including the right to be represented by counsel, the right of compulsory process to secure the attendance of witnesses, the right of confrontation and of cross-examination of witnesses, and the right to a speedy and public trial. Upon demand of the judge, or upon a finding by the board that the public interest would be served, the trial must be conducted in the county of the judge's residence. A complete transcript of the trial must be prepared by a court reporter.
  2. The hearing panel shall conduct the hearing. Members of the investigative panel for the particular cause shall not participate in the hearing or the deliberations of the cause.
  3. A majority of the hearing panel constitutes a quorum, and a quorum of the hearing panel is required to hold a hearing. The hearing panel shall decide a matter only upon the concurrence of a majority of all members of the panel hearing the matter. The decision of the hearing panel is the decision of the board.
  4. Charges of misconduct must be established by clear and convincing evidence.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Cross-References. Investigation and disposition of complaints, Tenn. R. Ct. of Judiciary 4.

Trial and transcript, Tenn R. Ct. of Judiciary 5.

NOTES TO DECISIONS

1. Delay.

Pursuant to review under former T.C.A. § 17-5-308(d), there was clear and convincing evidence to support the finding by the court of the judiciary that a judge's failure to rule on a motion in a personal injury action for nine months constituted a violation of Tenn. Sup. Ct. R. 10, Canon 3(B)(8); no pattern of delay was required to find a violation thereof. In re Bell, 344 S.W.3d 304, 2011 Tenn. LEXIS 577 (Tenn. June 10, 2011).

17-5-308. Dismissal of charges or imposition of sanctions — Findings and judgment — Moot removal recommendation.

  1. The board, acting through the hearing panel, may dismiss the charges or impose any sanction authorized in § 17-5-301(f)(1) at the conclusion of the hearing.
  2. The board shall issue a formal finding of fact and opinion within thirty (30) days of the conclusion of the hearing regardless of the sanction imposed. The hearing panel may make a written request to the chair of the board for an extension of time within which to file its findings and judgment. If the hearing panel does not submit its findings and judgment within thirty (30) days, the disciplinary counsel shall report the failure to submit such findings and judgment to the board, which may take any action it deems necessary to secure the submission of the information. The failure of the hearing panel to meet the deadline is not grounds for dismissal of the formal charges.
  3. If the board recommends the removal of a judge from office and by reason of resignation, death, or retirement, the board determines that its recommendation is moot, its formal opinion shall so state. For purposes of this subsection (c), the board's removal recommendation shall be considered moot only if the board determines there is no further punitive action the general assembly could take against the judge.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

17-5-309. Appeal by aggrieved judge.

  1. The aggrieved judge may appeal to the supreme court, as a matter of right, within fourteen (14) days from the date of entry of the judgment of the board. The record on appeal must conform to the requirements of Rule 24 of the Tennessee Rules of Appellate Procedure.
    1. The review in the supreme court is de novo on the record made before the board. There is no presumption of correctness of the judgment or the findings of the board.
    2. The supreme court shall convene within seven (7) days after all briefs are filed to hear oral arguments and shall file a written opinion within fourteen (14) days thereafter.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Cross-References. Impeachment of judges or chancellors, title 8, ch. 46.

Judgment, Tenn. R. Ct. of Judiciary 6.

Law Reviews.

Ethical Obligations of Judges (Joe G. Riley), 23 Mem. St. U.L. Rev. 507 (1993).

NOTES TO DECISIONS

1. Constitutionality.

The general assembly did not violate the separation of powers clause of the state constitution in creating the court of the judiciary, authorizing it to recommend the removal of judges and in providing for an appellate review of any such recommendation. In re Murphy, 726 S.W.2d 509, 1987 Tenn. LEXIS 858 (Tenn. 1987) (decided under former T.C.A. § 17-5-309).

2. Recusal of Judges.

The order of the Supreme Court suspending the license to practice of a general sessions court judge does not disqualify the judges of the court from hearing a recommendation for removal of the judge from office under former Tenn. Code Ann. § 17-5-310. In re Murphy, 726 S.W.2d 509, 1987 Tenn. LEXIS 858 (Tenn. 1987) (decided under former T.C.A. § 17-5-309).

3. Effect of Appeal of Criminal Convictions.

It was not necessary that proceedings for removal be held in abeyance until an appeal of criminal conviction in the federal courts was exhausted. In re Murphy, 726 S.W.2d 509, 1987 Tenn. LEXIS 858 (Tenn. 1987) (decided under former T.C.A. § 17-5-309).

4. Discipline Proper.

Upon de novo review under former T.C.A. § 17-5-310(b)(1), the Court of the Judiciary acted properly in considering the factors under former T.C.A. § 17-5-301(i) in deciding that the appropriate sanctions to be imposed on a judge included a 90-day suspension without impairment of compensation, a requirement to decide all future cases within 30 calendar days of the hearing, and the completion of judicial ethics training. In re Bell, 344 S.W.3d 304, 2011 Tenn. LEXIS 577 (Tenn. June 10, 2011) (decided under former T.C.A. § 17-5-309).

17-5-310. Action of board affirmed — Transmittal of recommendation of removal to general assembly.

  1. If the supreme court affirms the action of the board as provided in § 17-5-308, the judgment of the supreme court is final. If the supreme court affirms the action of the board in recommending removal of the judge in accordance with § 17-5-302 or §§ 17-5-308 and 17-5-301(f)(1)(F), the recommendation for removal must be transmitted to the general assembly for a final determination. However, if the supreme court affirms the board's action recommending the removal of a judge and its determination that the recommendation is moot as provided in § 17-5-308(c), the matter may not be transmitted to the general assembly for a final determination but is final upon the supreme court's action.
  2. The clerk of the supreme court shall send written notice of the supreme court's action to affirm the recommendation for removal to the speaker of the senate and speaker of the house of representatives. The clerk of the supreme court shall certify the entire record, including the briefs filed in the supreme court and the opinion of that court, to the speaker of the senate and the speaker of the house of representatives within five (5) days of the clerk's receipt of such record.
  3. The procedure for the removal of a judge provided in accordance with this chapter must not be construed as limiting or altering the power of impeachment, as provided in the Tennessee Constitution, article 5 or the power of removal as provided in the Tennessee Constitution, article VI, § 6.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

17-5-311. Conflict between timeframes.

If a conflict arises between the timeframe provided for in this chapter and the timeframe set out in the rules of practice and procedure, the rules of practice and procedure shall control.

Acts 2019, ch. 496, § 1.

Compiler's Notes. Former Title 17, Chapter 5, Part 3, §§ 17-5-301–17-1-314, (Acts 1979, ch. 356, § 11-15, 17-24; T.C.A., § 17-811; T.C.A., § 17-812; T.C.A., § 17-813; T.C.A., § 17-814; T.C.A., § 17-815; T.C.A., § 17-817; T.C.A., § 17-818; T.C.A., § 17-819; T.C.A., § 17-820; T.C.A., § 17-821; T.C.A. § 17-822; T.C.A., § 17-823; T.C.A., § 17-824; Acts 1983, ch. 17, § 2; Acts 1984, ch. 625, § 1-3; Acts 1993, ch. 66, § 40; 1995, ch. 208, § 8-16; 2002, ch. 564, §§ 4-17; Acts 2003, ch. 112, § 1; 2012, ch. 819, § 2, 4; 2013, ch. 236, § 41; 2019, ch. 345, § 19; repealed by Acts 2019, ch. 496, § 1, effective July 1, 2019), concerned jurisdiction and proceedings of the board of judicial conduct.

Effective Dates. Acts 2019, ch. 496, § 2. July 1, 2019.

Acts 2019, ch. 496, § 2 provided that for the purposes of vacating and reconstituting the board and appointing a new disciplinary counsel, the act shall take effect on May 24, 2019.

Attorney General Opinions. Civil causes of action against state trial judges, OAG 99-001 (1/19/99) (decided under former T.C.A. § 17-5-311).