The Tennessee Plan, in place since 1994, is slated to sunset on June 30, and Tennessee officials believe the state will have no legal mechanism for filling appellate court vacancies if the legislature does not act before then.(emphasis added). Well, at least that's what "Tennessee Officials" and the TBA want legislators to think.
One statute glossed over in the Attorney General's recent "Sky will fall" Opinion is at Tenn. Code Ann. § 17-2-109, under "Special Judges: Congestion or delay in litigation; appointment of former judges":
(a)(1) Whenever litigation in any chancery, circuit, criminal, general sessions, juvenile, probate or appellate court of this state shall become congested or delay in the disposition of litigation becomes imminent for any reason, the chief justice of the supreme court shall assign a retired or regular chancellor or judge to assist in the removal of such congestion or delay; provided, that such assignment shall not materially interfere with the performance of the assigned chancellor's or judge's official duties. In such situation both chancellors or judges may hear, try and dispose of litigation in such court at the same time, both signing their respective minutes.(emphasis added) This statutory section, as well as some other aspects of "the Tennessee Plan," reflect an intention by the legislature that the judiciary not be paralyzed if elements of "the Tennessee Plan" stopped functioning.
(2) Whenever litigation in any chancery or circuit court of this state shall become congested, or whenever litigation in any chancery or circuit court has required the recusal of a chancellor or judge, or whenever delay in the disposition of litigation becomes imminent for any reason, the chief justice of the supreme court may assign a former chancellor or judge to assist in the removal of such congestion or delay.
The sky will not fall if judicial commissions are allowed to sunset.
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