Separation of Powers
Legislature
Executive
Judiciary
The Good, The Bad, and The Ugly
Tennessee Constitution
Article II, Section 1
The powers of the Government
shall be divided into three distinct
departments: the Legislative,
Executive, and Judicial.
Tennessee Constitution
Article II, Section 2
No person or persons belonging to one
of these departments shall exercise
any of the powers properly belonging
to either of the others, except in the
cases herein directed or permitted.
Tennessee Constitution
Article II, Section 3
General Assembly
The Legislative authority of this
State shall be vested in a General
Assembly
Tennessee Constitution
Article VI, Section 1
Supreme Court
The judicial power of this State shall be
vested in one Supreme Court and in
such Circuit, Chancery and other
inferior Courts as the Legislature shall
from time to time, ordain and establish
Tennessee Constitution
Article VI, Section 2
Supreme Court
…The jurisdiction of this Court shall be
appellate only, under such restrictions and
regulations as may from time to time be
prescribed by law; but it may possess such
other jurisdiction as is now conferred by
law on the present Supreme Court.
“The people have entrusted to this
department the supreme judicial
power, and placed it and its
jurisdiction, beyond the legislative
power. Neither can one interfere with
or control the other, in the proper
discharge of its functions.”
Miller v. Conlee, 37 Tenn. 432 (Tenn. 1858).
“The supreme court has the power to
adopt all rules and orders necessary
and proper to make effective its
appellate jurisdiction and to enforce
its judgments, and it has the power to
make and establish a rule, when a case
arises to which there is no rule then in
use that applies.”
Foster v. Burem, 48 Tenn. 783, 1870 Tenn. LEXIS
148 (1870)
“The supreme court has both
the inherent power and
statutory authority to make
and enforce reasonable rules
of practice.”
Denton v. Woods, 86 Tenn. 37, 5 S.W. 489, 1887
Tenn. LEXIS 21 (1887)
Modern Rule Making
In 1965, the Legislature passed
the statute that codified the
modern rule making procedure
“(Justice) Harbison, the primary drafter of
the Tennessee Rules of Civil Procedure
(adopted by the court in 1970), chaired the
court‘s Advisory Committee on the Rules of
Civil Procedure and was instrumental in the
promulgation and implementation of the
Tennessee Rules of Evidence. Before
Harbison’s tenure on the court, Tennessee‘s
courts had functioned without any uniform
rules of procedure.”
Tennessee Encyclopedia of History and Culture,
http://tennesseeencyclopedia.net/entry.php?rec=597
“Rules of Civil Procedure along with the
Rules of Criminal Procedure and the
Rules of Appellate Procedure, are “law”
of this state, in full force and effect,
until such time as they are superseded by
legislative enactment or inconsistent
rules promulgated by this court and
adopted by the general assembly.”
Tennessee Dep't of Human Services v. Vaughn, 595
S.W.2d 62, 1980 Tenn. LEXIS 417 (Tenn. 1980).
“The statutory scheme of rule
making contemplates that the
supreme court will make
appropriate use of the advisory
commissions authorized by
16-3-601.”
State v. Best, 614 S.W.2d 791, 1981 Tenn. LEXIS
437 (Tenn. 1981).
“It is an inherent power of a court to
promulgate necessary procedural rules.
Such power exists by virtue of the
establishment of a court and not by
largess of the General Assembly. Of
course, courts may not enact laws
governing substantive rights as such
would be an invasion by the judiciary of
the legislative function.”
Haynes v. McKenzie Mem. Hosp., 667 S.W.2d 497 (Tenn. Ct. App.
1984); State v. Johnson, 673 S.W.2d 877 (Tenn. Crim. App. 1984).
“Conflicts between provisions of the
Tennessee Rules of Civil Procedure
and provisions of the Tennessee Code
Annotated which cannot be
harmoniously construed will be
resolved in favor of the Tennessee
Rules of Civil Procedure.”
Mid-South Pavers, Inc. v. Arnco Constr., Inc., 771
S.W.2d 420, 1989 Tenn. App. LEXIS 12 (Tenn.
Ct. App. 1989).
“(W)hen the court finds that (1) a statute can
legitimately be construed in various ways, and (2)
one of
those constructions presents a
constitutional conflict, then it is it's duty to adopt
a construction which will sustain the statute and
avoid that constitutional conflict, if its recitations
permit such a construction. In no case, though, is
the judiciary empowered to substitute its own
policy judgments for those of the General
Assembly or to adopt a construction that is clearly
contrary to the intent of the General Assembly”
State v. Mallard, 40 S.W.3d 473 (Tenn. 2001)
The Legislature’s “power in this regard,
however, is not unlimited, and any
exercise of that power by the legislature
must inevitably yield when it seeks to
govern the practice and procedure of the
courts. Only the Supreme Court has the
inherent power to promulgate rules
governing the practice and procedure of
the courts of this state.”
State v. Mallard, 40 S.W.3d at 480-481
Do We Have a Problem?
The Inn’s Perspective on Hannan,
Gossett and the Summary Judgment
Statutes
Summary Judgment Cases
• Do you believe the Hannan holding was a
good policy decision?
• 47% Yes
• 53% No
• Do you believe the Gossett holding was a
good policy decision?
• 42% Yes
• 53% No
General Assembly’s
“Reversals”
• Do you believe the Hannan statute is a good
policy decision?
• 56% Yes
• 42% No
• 2% Declined to answer
• Do you believe the Gossett statute is a good
policy decision?
• 55% Yes
• 42% No
• 3% Declined to answer
Constitutionality of Statutes
• Do you believe the statutes concerning
summary judgment are constitutional?
• 55% Yes
• 40% No
• 5% Declined to answer
Authority to Promulgate Rules
• Where should rulemaking authority lie?
• 73% Supreme Court
• 20% General Assembly
• 7% Declined to answer
• Comments by members:
• Depends on type of rulemaking
• Proposed by Supreme Court, adopted unless
General Assembly acts to disapprove
• Not sure, each has exercised such authority in
Tennessee at various times
Demographics
• 71% of respondents were litigators
• Of litigators:
• 35% primarily represent Plaintiffs
• 65% primarily represent Defendants
Your Background and Your Responses
• If you are not a litigator, you tend to:
• Believe Hannan is good policy, but Gossett is not
• Believe the Hannan statute is bad policy, but the
Gossett statute is good policy
• Believe the statutes are constitutional
• Believe rulemaking authority should lie with
Supreme Court
Your Background and Your Responses
• If you are a litigator who primarily represents
Plaintiffs, you tend to:
• Believe Hannan and Gossett are good policy
• Believe the responsive statutes are bad policy
• Believe the statutes are unconstitutional
• Believe rulemaking authority lies with Supreme
Court
Your Background and Your Responses
• If you are a litigator who primarily represents
Defendants, you tend to:
• Believe Hannan and Gossett are bad policy
• Believe the responsive statutes are good policy
• Believe the responsive statutes are
constitutional
• Believe rulemaking authority should lie with
Supreme Court
Separation of Powers Panel
Representative Vance Dennis
• Dist 71 – Hardin, Lewis, Wayne, Lawrence Counties
• Attorney & Member of the Civil Justice Committee
Representative Mike Stewart
• District 52 – Davidson County
• Attorney & Member of the Civil Justice Committee
Judge Frank Clement
• Tennessee Court of Appeals (2003)
• Advisory Commission on the Rules of Practice
&Procedure
The
Good
The
Ugly
Clip
The
Bad
Joe Haynes
Attorney and
Former State Senator
(Davidson Co)
94th to 107th General Assemblies