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).

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).

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.

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).

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.

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).

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).

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).

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.

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).

Part 4
Secretarial Assistance

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.

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).

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.

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).

5. Construction.

T.C.A. §§ 17-2-206 and 17-2-112, when read together, clearly indicate that an interchange is effected by a judge sitting in a court to which he or she was not elected or appointed, not the transfer of a case from one court to another. In other words, our interchange framework does not grant a court that otherwise lacks subject matter jurisdiction the power to adjudicate the case; it simply authorizes judges from other courts to sit by interchange in a court with subject matter jurisdiction when the original judge cannot preside over the matter for whatever reason. In re Estate of Ellis, — S.W.3d —, 2020 Tenn. App. LEXIS 564 (Tenn. Ct. App. Dec. 14, 2020).

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).

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.
2. 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.
3. 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.
4. 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. 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.
2. 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).
   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.
   3. 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.
3. 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.
4. 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.

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.
4. 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.

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.
2. 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.
3. 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.
7. 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.
8. 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.
9. 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.
10. 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.

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.

17-5-301. 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.
6. 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.
7. 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.
8. A sanction imposed by the board does not violate the prohibition of article VI, § 7 of the Tennessee Constitution.
9. 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.
10. 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, §§ 17-5-301 — 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.

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).

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).
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.
4. 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.
5. 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;
      2. 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
      3. 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.
6. 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.
7. 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.

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.
7. 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.

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.
2. 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).

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).