ATTORNEY GENERAL SELECTION AND JUDICIAL (S)ELECTION

I. ATTORNEY GENERAL SELECTION A. History

- The Tennessee Constitution of 1796 provided for the appointment of attorneys for the state

o In 1817, the General Assembly passed Chapter 65, which established one attorney general per district

o In 1831, the General Assembly passed Chapter 52, which created the position of reporter to publish Tennessee Supreme Court decisions

- The revised Tennessee Constitution of 1835 provided that the legislature shall elect the attorneys for the state

o Chapter 51 provided for one attorney general for the state’s civil and criminal business in the Supreme Court, and also created attorneys for each district

- In 1838, Gov. Newton Cannon exercised his constitutional authority to make interim appointments when Attorney General George Yerger resigned while the legislature was not in session; he selected Return J. Meigs

- In 1853, the people approved a constitutional amendment to elect, by popular vote, the attorney general and the attorneys for the districts

o John Sneed became the first popularly elected attorney general- In 1870, following the Civil War, the Tennessee Constitution was again revised, and

Section V was amended to give the Supreme Court the authority to appoint the attorney general and reporter to an 8-year term

o The Supreme Court chose Joseph Heiskell as attorney generalB. Modern Office of the Attorney General and Reporter

- Today, the office functions as a full-service law office with over 100 attorneys- Tennessee remains the only state to have its Supreme Court appoint the attorney

general - For more information, see Andy D. Bennett, The History of the Tennessee Attorney

General’s Office, 36-APR Tenn. B.J. 12 (2000)II. JUDICIAL (S)ELECTION

A. History of the Tennessee Plan- The Tennessee Constitution of 1796 provided that judges were to be selected (to life

tenure) by the state legislature- During the Constitutional Convention in 1834, a proposal to select judges by popular

election failed- In 1853, the people approved a constitutional amendment that all judges be elected by

“the qualified voters”o The 1870 Constitutional Convention maintained this language, and it has

remained ever since

- In 1937, the ABA endorsed merit selection plans, whereby judges would be selected by “experts,” rather than by political appointment or popular election

o Missouri, in 1940, became the first state to adopt merit selection- In 1971, Tennessee adopted a merit selection plan (The Tennessee Plan)

o The governor appoints all judges on intermediate appellate courts and the supreme court by selecting from a list of candidates submitted by the judicial nominating commission

o The appointed judges serve until the next general election, at which time they face an up-or-down retention election

o If the judge is not retained, the governor appoints a new judge from a new list of candidates from the judicial nominating committee

- Since the Plan was created, the public has voted in favor of retention in all but one case (in 1996, the public voted against retaining Justice Penny White of the Supreme Court)

B. Challenges to the TN Plan - Unlike every other state that has adopted a similar method of judicial selection via

appointment and retention election, Tennessee has never amended its constitution to revise the language requiring that all judges be elected

o In fact, in 1977, voters rejected such an amendmento As a result, the TN Plan has been challenged on numerous occasions on the

grounds that neither appointment by the governor nor retention elections satisfy the constitution’s requirement that all judges be elected by the qualified voters

- In State ex rel. Higgins v. Dunn (1973), the Supreme Court found retention elections constitutional

o After Dunn, the legislature repealed the TN Plan with respect to supreme court vacancies

o However, the legislature reauthorized the TN Plan for supreme court vacancies in 1994, leading to more litigation

- In State ex rel. Hooker v. Thompson (1996), the Court found no compelling reason to disturb the ruling of Dunn

- In 2012, Mr. Hooker again challenged the constitutionality of the TN Plan in a case that is still pending before a Special Supreme Court

o This lawsuit represents Mr. Hooker’s seventh attempt in state and federal court to challenge the constitutionality of the TN Plan; each of his prior attempts has been dismissed. For more information see attached Answer of the Appellees in Hooker v. Haslam

C. Senate Joint Resolution 710 (attached below)- The State Senate and House in their last session approved Resolution 710, by Senator

Kelsey, which would effectively amend the Tennessee Constitution to, among other

things, confirm the validity of retention elections for Tennessee appellate judges. If approved by a 2/3s vote in each house in the upcoming General Assembly this proposed Amendment would be placed on the ballot for a vote in the November 2014 General Election. Tenn. Const. art. XI, § 3.

ATTACHED DOCUMENTS

36-APR Tenn. B.J. 12

Tennessee Bar JournalApril, 2000

THE HISTORY OF THE TENNESSEE ATTORNEY GENERAL’S OFFICE

Andy D. Bennett a1

Copyright (c) 2000 by the Tennessee Bar Association; Andy D. Bennett

What state official settled Tennessee’s boundary with Virginia? Who ran Standard Oil Company out of the state? Who refused to prosecute treason cases after the Civil War? Who took public legal positions for women’s suffrage, for victims’

rights and for campaign financial disclosure?

The answer to all these questions is the Tennessee attorney general and reporter. Tennessee became a state through an act of Congress signed by President George Washington on June 1, 1796. The Tennessee Constitution of 1796, Article V, Section 2, provided for the appointment of “an attorney or attorneys for the state” by joint ballot of both Houses of the General Assembly. They could hold their offices during good behavior. It did not provide for their duties. The General Assembly passed a series of acts over the years to implement this provision.1 In 1817, Chapter 65 established one attorney general per district to attend the courts, prosecute and discharge all other duties required by law. The attorney general in whose district the Supreme Court met was to handle all criminal cases carried to that court. This system remained in place until the Constitution of 1835 was implemented. One other act was passed while the 1796 Constitution was in effect that had a significant impact on the future of the office. In 1831 the General Assembly passed Chapter 52, which created the position of reporter to publish the decisions of the Tennessee Supreme Court. The copyright to these reports belonged to the reporter, who received no other compensation. For a variety of reasons, including a desire to curb certain powers of the legislature and to alter the tax provisions, the people of Tennessee decided in 1833 that a revision of the Constitution was in order. A constitutional convention was held in 1834 and its product was approved by the electorate in 1835. Article VI, Section 5 of the new Tennessee Constitution provided that “[t]he legislature shall elect the attorneys 

Tennessee constitution provides for “attorney or attorneys” for the state. 1796Chapter 65 establishes one attorney general per district to attend the courts, prosecute and discharge all

other duties.1817

General Assembly creates position of reporter to publish the decisions of the Supreme Court. 1831First clear division of duties between the attorney general for the state and the attorneys for the

districts, made by Chapter 51, is still in effect today. • Chapter 76 passed, providing the attorney general with guidelines for selecting Supreme Court decisions to report.

1835

Article VI, Section 5, is amended to provide election, by popular vote, the attorney general for the state and the attorneys for the districts for six-year terms.

1853

Constitutional convention amends Article VI, Section 5, to give the Supreme Court the authority to appoint the attorney general and reporter to an eight-year term, a method of selection unique to

Tennessee.

1870

General Assembly passes Chapter 271, making it the duty of the district attorneys to assist the attorney general in cases in circuit or chancery courts.

1899

General Assembly passes Chapter 500, allowing the attorney general to appoint two assistants, one compensated and the other not compensated.

1905

Another compensated assistant allowed by Chapter 36. • The first official office of the attorney general is rented in Nashville’s Stahlman Building.

1917

Chapter 22 establishes the legal department of the state and provides for seven assistants. 1929Attorney general required to review every administrative regulation for legality. 1941

Attorney general required to appoint an assistant to investigate all claims filed with the Board of Claims, conduct hearings, make recommendations and serve as secretary to the board.

1945

Chapter 20 allows attorney general to appoint an assistant to represent all regulatory boards. 1951Office of attorney general moves onto the second floor of the new Supreme Court building. 1937

Chapter 130 allows attorney general to appoint nine assistants to help with increasing workload. Also, four other assistants allowed for nothing but highway condemnation work.

1965

Chapter 257 increases the number of assistants to 11 and two deputy attorneys general are designated. 1967Chapter 276 allows attorney general to employ as many assistants as deemed necessary, consistent

with the office’s budget.1971

Supreme Court promises a more open system for selecting attorney general and reporter; takes applications and holds a public hearing.

1974

Electorate approves Public Chapter 848’s call for a limited constitutional convention. 1976Public Chapter 438 enacts the Consumer Protection Act, which gives the state and the attorney general more authority to take actions to benefit consumers. Legislature nearly doubles office budget, allowing

staff expansion into consumer and environmental areas and the opening of small offices in East and West Tennessee. • Current method of selection survives Constitutional Convention.

1977

First woman appointed deputy attorney general. 1979The Office of the Attorney General and Reporter is now a full-service law office with more than 140

attorneys.2000

*13 for the state, by joint vote of both houses of the general assembly, who shall hold their offices for the term of six years.” At first, the legislature decided to implement this provision by enacting 1835 Chapter 28, which essentially continued the system established in 1817. Three weeks later, however, the legislature enacted Chapter 51, which repealed Chapter 28. Chapter 51 provided for one attorney general to attend to the state’s civil and criminal business in the Supreme Court; give opinions to the governor, secretary of state, treasurers and comptroller; and, report the decisions of the Supreme Court. Attorneys for the districts were also created. This landmark act made the first clear division of duties between the attorney general for the state and the attorneys for the districts. This division of duties has been carried forth to this day.  Finally, the legislature passed Chapter 76, which provided the attorney general with guidelines for selecting Supreme Court decisions to report. George Yerger, who had been appointed to the reporter position in 1831, served as the attorney general. In his last volume of reports, the 18th volume of Tennessee Reports, General Yerger stated that he was resigning and moving to Vicksburg, Miss. He resigned on Oct. 15, 1838. He practiced law in Vicksburg and in Jackson, Miss., for the rest of his life.2

 On Oct. 17, 1838, since the legislature was not in session, Gov. Newton Cannon exercised his constitutional authority to make interim appointments and selected Return J. Meigs as attorney general. Although born in Kentucky, Meigs had practiced law in East Tennessee and Nashville. He was the only candidate for the Constitutional Convention of 1834 who advocated a constitutional amendment for the gradual emancipation of the slaves. He lost that election. In 1839 he sought election to the office, but he was a Whig. The General Assembly was controlled by the Democratic Party and selected West H. Humphreys, a Democrat, as attorney general. Meigs continued to serve the state and the legal profession. He also prepared a digest of court decisions known as Meigs Digest and, with William F. Cooper, compiled the state’s statutes into its first code. He also served as state librarian and in the state Senate. He opposed secession and moved to the North in 1861. In 1863 he was appointed clerk of the Supreme Court of the District of Columbia.3

 West Humphreys served 12 years, two terms, as attorney general. Perhaps his most interesting opinion dealt with the failure of the legislature to confirm the governor’s nominees as directors of the Bank of Tennessee. He concluded that the bank had no directors, but that this did not dissolve the corporation.4

 General Humphreys was succeeded in 1851 by William G. Swann of Knoxville. Swann’s term is most notable for being cut short. On Aug. 4, 1853, the people approved an amendment to Article VI, Section 5 of the Tennessee Constitution to elect, by popular vote, the attorney general for the state and the attorneys for the districts to six-year terms. State attorneys then in office were to remain until their successors were chosen. Swann was not a candidate for election. He later was elected mayor of Knoxville and a member of the Confederate Congress.5

 

John L. T. Sneed, the district attorney at Memphis, became the first popularly elected attorney general of Tennessee on May 22, 1854. He served one term. He prepared five volumes of Tennessee Reports. He departed from the general format of the prior reports by including in his third volume a treatise on habeas corpus. Subsequently, Sneed became a brigadier general in the Confederate Army and a justice of the Tennessee *14 Supreme Court.6

 The second elected attorney general was John W. Head of Gallatin. His term was cut short by the Civil War. The last volume of his Tennessee Reports contains a very interesting note, a portion of which states: “Most of this volume was prepared during the excitement of the winter of 1861. The remainder has been prepared in the midst of professional engagements. This, I trust, will cause the errors it may contain to be overlooked by the profession.” He enlisted in the Confederate Army. In 1874 he was elected to Congress, but died a week later.7

 According to the Tennessee Blue Book, the Office of Attorney General was vacant during the Civil War. This is not entirely accurate. Military Gov. Andrew Johnson appointed Horace Maynard, an East Tennessee congressman, attorney general. It appears, however, that Maynard was more of a political figure than a legal advisor.8

 In 1865 Gov. Johnson appointed Thomas H. Coldwell of Shelbyville as attorney general. In 1867 he was elected to the office without opposition. He resumed the preparation of Tennessee Reports volumes beginning with decisions from Head’s tenure. Coldwell is probably most remembered for entering a nolle prosequi in all treason cases before the Supreme Court that arose out of the Civil War. That is, he refused to prosecute these cases.9

 The 1870 Constitutional Convention amended Article VI, Section 5 to give the Supreme Court the authority to appoint the attorney general and reporter to an eight-year term. This method of selection is unique to Tennessee. There are two theories about how this method was chosen. According to the first theory, the method was a way to get Joseph Heiskell chosen for the job. Heiskell and A. O. P. Nicholson became friends while serving in prison together during the Civil War. They both became leading members in the 1870 Constitutional Convention. When the new constitution was implemented, Nicholson became the chief justice of the Tennessee Supreme Court and the court chose Heiskell as attorney general and reporter.10

 According to the second theory, the real reason for this method of selection lies in the fact that the attorney general would be the reporter of the Supreme Court’s decisions. One delegate to the convention proposed that the attorney general and reporter be elected by the qualified voters of the state. Delegate William Stephens opposed election because he did not think the people could judge the qualifications of a good reporter. James Thompson also urged that the court be allowed to select its own reporter because of the importance of law reports. Interestingly, Joseph Heiskell successfully moved that the proposal for popular election be tabled.11

 The 1870 Constitution allowed the initial Supreme Court to have six members instead of five and to meet in two panels of three members each. This was to enable the court to deal with the backlog of cases that had built up as a result of the Civil War. This made Heiskell’s job much more difficult. Not only did he have more cases in which he had to represent the interests of the state, but he had many more decisions to publish in Tennessee Reports. Heiskell had to get other attorneys to prepare volumes 6, 7, 9, 10, 11 and 12 of his reports (Tennessee Reports volumes 53, 54, 56, 57, 58 and 59). Jere Baxter, with Heiskell’s approval, published nine volumes of Tennessee Supreme Court opinions, volumes 60-68 of Tennessee Reports. Beginning with volume 63, Baxter billed himself as assistant reporter. Heiskell’s successor, Benjamin J. Lea, was appointed attorney general and reporter in 1878. The heavy reporting duties continued during his tenure. Lea produced 16 volumes of Tennessee Reports (volumes 69-84) in eight years. Upon Lea’s death, it was remembered that his Tennessee Reports volumes were “well prepared and ably edited.” His successor, George W. Pickle, said that “as attorney-general [sic] he did not, in his abhorrence of crime and zeal for conviction, trample upon the rights of the prisoner, or forget the claims of justice and humanity ….”12

 Pickle served for two eight-year terms, beginning in 1886 and 1894 respectively. He handled the case that settled the boundary with Virginia, Commonwealth of Virginia v. State of Tennessee. He also sat as a special judge in Cumberland Telegraph and Telephone Co. v. United Electric Railway Co. In 1899 the legislature passed Chapter 271, which made it the duty of the district attorneys to assist the attorney general in cases in circuit or chancery courts. This would seem to indicate that the attorney general was having difficulty keeping up with his case duties.13

 In 1902 and again in 1910 Charles T. Cates Jr. of Knox County was appointed attorney general and reporter. He was known as a tireless worker, who handled *16 the duties of the office with skill and success. He personally prepared the head notes of

all the cases in the 19 volumes of Tennessee Reports he published. In 1905 the General Assembly passed Chapter 500, which allowed the attorney general to appoint two assistants, one compensated, the other not compensated. Walter Faw became the first assistant attorney general. The most significant case handled during General Cates tenure was probably State ex rel Cates v. Standard Oil. This case resulted in Standard Oil being prohibited from doing business in Tennessee because of violations of the antitrust law. Gen. Cates resigned on Sept. 15, 1913, to return to private practice. The Supreme Court accepted his resignation with reluctance, and stated for the record that “neither Tennessee nor any other state has ever had an abler or more efficient attorney general.”14

 On Sept. 17, 1913, Frank M. Thompson was appointed attorney general and reporter. He stayed in Chattanooga and practiced law part-time until January of 1921 when he moved to Nashville and devoted all his time to his office. While Gen. Cates only gave opinions to state officials, Gen. Thompson gave them to county and municipal officials also. One of his most important opinions dealt with the ratification of the Women’s Suffrage Amendment to the United States Constitution. Article II, Section 32 of the Tennessee Constitution provided that the Tennessee General Assembly could not vote on a proposed constitutional amendment until after an election occurred following its submission to the states. Consequently, in 1920 the legislature could not vote on the 19th Amendment until after the November 1920 elections. However, based on a recent U.S. Supreme Court case that said a state could not alter the method of amendment to the United States Constitution, Gen. Thompson issued an opinion to Gov. Roberts that ratification by a special session of the legislature before the November elections would be legal. After much political maneuvering by both sides, the ratification took place. Opponents of the amendment succeeded in getting an injunction prohibiting the governor from certifying the results. Gen. Thompson persuaded the Tennessee Supreme Court to remove the injunction, however, and the governor’s certification was sent to the United States secretary of state.15

 Gen. Thompson defended new tax laws, the governmental reorganization by Gov. Peay, the 1913 act suppressing liquor and the 1915 ouster act. Gov. Hooper, in his Jan. 6, 1915, legislative message, commended Gen. Thompson on his enforcement of the Nuisance Law. Chapter 36 of the Acts of 1917 allowed the attorney general to appoint another compensated assistant. Also in 1917, Gen. Thompson rented a suite of rooms in the Stahlman building as the first official Office of the Attorney General. Later the office moved to the Fourth and First National Bank at Fourth and Union and in 1925 to the Memorial Building on Capitol Boulevard. In 1920 Gen. Thompson provided a 76-page report to the legislature called “Statement of the Duties and Activities of the Attorney General and Reporter of Tennessee and his Two Assistants Under the Laws of this State.” This report chronicled a number of major cases handled by the office in recent years, maintained that the office was understaffed and underpaid and complained that the risk of loss in the publication of Tennessee Reports was on the attorney general personally. Gen. Thompson died on July 20, 1926, two months before the end of his term, of a heart attack. He had been ill since April. He delayed taking time off to direct the preparation of the state’s brief in Scopes v. State. He had wanted to argue the case himself, but his doctors advised against it. Charles Cornelius was appointed to finish the term.16

 The Supreme Court chose Leonidas D’Entercasteaux Smith of Knoxville as attorney general in 1926. His six years in office encompassed a time of great fiscal difficulty for the state. Such times create many serious legal issues. For example an opinion by Gen. Smith to the comptroller dated Aug. 7, 1931, begins with Gen. Smith’s statement of the issue:

You advise that the condition of the *17 state treasury is such that it is impossible to pay all of the appropriations and obligations of the state as they are presented for payment … Your report indicates that the state is confronted with a serious financial crisis and you particularly desire to know if in order to prevent a complete breakdown in the financial affairs of the state government, you would have the right to prefer some of the claims and obligations of the state government over others.

  With a mixture of legal and practical reasoning, the attorney general answered in the affirmative.It is unthinkable that the necessary agencies of the government should be allowed to collapse and cease to function, if it is possible to prevent such a calamity. The law of necessity would apply to an unfortunate situation of this kind. The government must not cease to exist. Law and order depend upon the government, and the state’s helpless and unfortunate wards in the penal and eleemosynary institutions must be cared for. It would be a blot upon the fair name of Tennessee if its government should not be just before it is generous. Many of the appropriations contained in the Miscellaneous and General Appropriations Bills fare in the nature of gifts, bounties and for extensions and improvements, and are not actual and necessary to the existence of the government. These items should not be paid until the actual and necessary operating expenses of the government, including the judicial and administrative branches of the government, are provided for.17

  

In 1929, Chapter 22 established the legal department of the state and provided for seven assistants. A similar bill had been vetoed by Gov. Peay in 1927 because of the added expense and a limitation on hiring special counsel. One assistant was designated the solicitor general and charged with the trial and direction of civil matters in which the state was interested. Another was named counsellor for the departments. His duties were to provide legal advice, including written opinions, to all the departments and constitutional offices. Two assistants were called advocates general and were responsible for preparing the criminal briefs and arguing the criminal cases in the Supreme Court. The other three assistants were called field attorneys and their duty was to handle litigation. The attorneys Gen. Smith hired were known as being extremely able and honest. Gen. Smith died in office on Nov. 7, 1932.18

 Roy H. Beeler of Knoxville was chosen by the Supreme Court to serve as attorney general for the remainder of Gen. Smith’s term. Gen. Smith had appointed him an assistant attorney general in 1926 and he had also served as the solicitor general. He ran the office during Gen. Smith’s terminal illness. Gen. Beeler was appointed to full terms in 1934, 1942 and 1950. He also served as president of the National Association of Attorneys General in 1951-52. One of the most important cases decided during his term was Cummings v. Beeler, which determined the validity of a legislative call for a limited constitutional convention. It also stated that a state official should follow the advice of the state’s chief legal officer. He drafted much of the most important legislation that passed the General Assembly during his tenure. Legislation that affected the office during his tenure included Chapter 111 in 1941, which required the attorney general to review every administrative regulation for legality; 1945 Chapter 73, which required the attorney general to appoint an assistant to investigate all claims filed with the Board of Claims, conduct hearings, make recommendations and serve as secretary to the board; and 1951 Chapter 20, which allowed the attorney general to appoint an assistant to represent all regulatory boards. The Attorney General’s Office moved into the new Supreme Court Building in late 1937, occupying the second floor. On Sept. 4, 1954, Gen. Beeler fell and fractured his hip exiting the elevator in the Supreme Court Building. He died Sept. 23rd due to complications from his injury.19

 The Supreme Court picked George F. McCanless as the next attorney general and elected him to full terms in 1958 and 1966. The increasing workload of the office required expansion of the staff. In 1965, Chapter 130 allowed him to appoint nine assistants. Also in 1965, he was permitted by Chapter 169 to appoint four other assistants who would do highway condemnation work. In 1967, Chapter 257 increased the number of assistants to 11. To help him supervise the work of the office, Gen. McCanless designated two long-time assistants, Milton Rice and Thomas E. Fox, as deputy attorneys general.20

 The most famous cases decided during his tenure probably dealt with reapportionment of the legislature. In Kidd v. McCanless, he had managed to keep the state courts from ordering the legislature to reapportion. The rural-dominated legislature had no desire to reapportion *18 itself even though the Tennessee Constitution required it to do so. Reapportionment would decrease the representation of rural areas and increase that of urban areas. Baker v. Carr was decided by the U.S. Supreme Court in 1962. This case required the Tennessee legislature to reapportion for the first time since 1901. Baker v. Carr had national implications. The principles it established required most of the states to reapportion as well.21

 Gen. McCanless resigned in September 1969 when he was appointed to fill a vacancy on the Tennessee Supreme Court. His successor was David Pack, a former assistant attorney general, chancellor, highway commissioner and insurance commissioner. Milton Rice replaced Pack as insurance commissioner, but returned to the office in 1971. During Pack’s tenure, in 1971, Chapter 276 allowed the attorney general to employ as many assistants as deemed necessary consistent with the office’s budget. Another significant act would have placed the Tennessee Bureau of Investigation in the attorney general’s office, but Gov. Dunn vetoed it. Pack ceased publishing volumes of Tennessee Reports, Tennessee Appeals Reports and Tennessee Criminal Appeals Reports, opting instead to work cooperatively with private legal publishers who were already publishing these opinions anyway. Pack resigned in May 1974 to run for governor. Milton Rice was chosen to serve the remaining three months of the term. The Supreme Court elected in 1974 promised a more open system for selecting the attorney general and reporter. The court took applications and held a public hearing. According to newspaper reports, the court was split between Rice and another attorney. Apparently as a compromise, Dyersburg attorney Ray Ashley Jr. was selected.22

 Gen. Ashley favored a more active office, especially regarding consumer and environmental problems. He soon began work on a consumer bill. His efforts, however, did not result in a new law. Although the House eventually passed a bill to create a new consumer protection agency in the Attorney General’s Office, the Senate Commerce and Labor Committee killed it despite Ashley’s personal appearance before the committee at an unusual 5 a.m. meeting. But Ashley did have a legislative victory that day when the House voted down a bill creating a popularly elected solicitor general’s office with most of the

attorney general’s duties.23

 On Sept. 1, 1976, Gen. Ashley abruptly resigned, expressing concerns with the limitations of his job and the uncertainty about the future of the office. The attitude of the legislature in rejecting the consumer bill and flirting with the concept of a solicitor general probably played a role in his decision as did the electorate’s August approval of 1976 Public Chapter 848’s call for a limited constitutional convention. One of the subjects of the convention was the judicial article of the Tennessee Constitution, of which the attorney general was a part.24

 The Supreme Court reverted to the more discrete method of choosing the attorney general and selected Brooks McLemore, the court’s executive secretary. He implemented many of the plans begun under Gen. Ashley. In 1977, Public Chapter 438 enacted the Consumer Protection Act, which gave the state and the attorney general more authority to take actions to benefit consumers. Also in 1977 the legislature nearly doubled the office budget. This gave Gen. McLemore and his successor the ability to expand the office staff, especially in the consumer and environmental areas. He also began small regional offices in East and West Tennessee for attorneys who did condemnation work for state highway projects.25

 During Gen. McLemore’s tenure, the office was reexamined by a constitutional convention. The 1977 Constitutional Convention was called to review, among other things, the judicial article of the Tennessee Constitution. The method of selection of the attorney general was the subject of a lengthy debate. The convention recommended appointment by the governor from a list of three nominees recommended by the Appellate Court Nominating Commission with confirmation by the senate. An amendment to require the popular election of the attorney general was defeated in the convention due to concerns that individuals would use the office as a platform to run for governor and that there was no guarantee of electing an individual with the professionalism that the position required. The convention also rejected an amendment to continue the system of appointment by the Supreme Court. The method of selection remained unchanged, however, because the people rejected the convention’s recommendations for a revised judicial article.26

 Gen. McLemore resigned after serving only two years. For the first time since the court had been selecting the attorney general the Supreme Court did not choose an individual from the grand division of the state represented by only one member of the court. Rather than choosing a West Tennessean, the court picked William M. Leech Jr. of Middle Tennessee. He increased the size of the attorney staff significantly. He created the position of special deputy for litigation to supervise or handle major cases and he established several more divisions within the office, such as the environmental division, to increase attorney expertise through specialization. Gen. Leech appointed the first female deputy attorney general and placed more *19 emphasis on administration of the office. A more formal system of issuing opinions was instituted in which the attorney general reviewed and signed each opinion. Perhaps the most controversial opinion issued during Gen. Leech’s tenure concerned prayer before high school football games. Litigation over the condition of the state’s prison system began and the case concerning the desegregation of the state’s higher education system continued. Legal action was taken against companies accused of bid rigging state highway contracts. Also during this time the General Assembly enacted 1979 Public Chapter 422, which revised and clarified the duties of the attorney general. The attorney general was also removed from several boards and commissions, at Gen. Leech’s request, because of the conflicts created by representing a board and also serving on it. When Gen. Leech resigned, the court returned to the old tradition and chose Memphian W. J. Michael Cody to serve the remainder of the term. This appointment displayed the independence of the court in making its selections. Political leaders complained because they were not consulted. Gen. Leech told Cody there were two “small” matters that he would have to handle--the prison system litigation and the higher education desegregation case. These two cases consumed significant amounts of Gen. Cody’s time over the next four years.27

 The office continued to grow, necessitating moving portions of the office to other locations, including 460 James Robertson Parkway and the John Sevier Building. The Claims Commission Act, 1884 Public Chapter 972, required the addition of a number of attorneys to handle tort claims against the state. Bond counsel were added to reduce the state’s cost of issuing bonds. Environmental enforcement and consumer protection were emphasized. Lawsuits were filed to prevent the federal government from placing a nuclear waste storage facility in Tennessee and to force Champion Paper Company to cease polluting the Pigeon River. Administrative proceedings over bingo licenses were initiated and eventually led to a declaration by the Tennessee Supreme Court that bingo was a lottery and therefore prohibited by the Tennessee Constitution. Settlement of oil overcharge litigation gained $34 million for the state. The campaign financial disclosure act was successfully defended against a challenge by several churches.28

 

When Gen. Cody resigned in August 1988 the Supreme Court chose another Memphian, Charles W. Burson, to succeed him. Gen. Burson, like his predecessors Leech and Cody, focused on office organization and the way certain cases were handled. He established a special counsel division to handle or assist in major cases. He encouraged cooperative efforts with the district attorneys, especially in the areas of securities fraud and environmental crimes, by creating an Enforcement Division. He reinstituted the position of solicitor general to *34 focus on the office’s appellate work and opinions. The Civil Right and Claims Division was expanded to better handle the rising number of civil rights cases filed against state officers and employees. A bankruptcy unit was established within the Tax Division to consolidate much of the state’s efforts in bankruptcy courts. A senior counsel program was established to recognize and better utilize attorneys in the office who had served with distinction for at least six years. The office also played a national role. While Gens. Leech and Cody had headed committees of the National Association of Attorneys General, Gen. Burson became its president in 1994-95. He emphasized the role children play in the nation’s future and encouraged programs by the association’s members geared toward legal issues involving children. He received the association’s Wyman Award, which is given annually to the nation’s most effective attorney general. Significant litigation continued during Gen. Burson’s tenure. The federal court supervision of the state prison system ended, but new major lawsuits arose. A number of small school systems sued over their share of state education funding. The Tennessee Supreme Court eventually ruled that the state’s system of funding education violated the Tennessee Constitution. The remedial legislation passed by the General Assembly was also challenged and found constitutional in most respects. Litigation over the conditions in state mental health centers began and suits were filed to challenge aspects of the state’s TennCare program. The office was also active in the U.S. Supreme Court. Gen. Burson argued several cases, including Payne v. Tennessee regarding the use of victim impact testimony in death penalty sentencing and Burson v. Freeman regarding the constitutionality of Tennessee’s statute prohibiting campaigning within 100 feet of the entrance to a polling place on election day.29

 Gen. Burson left office in February 1997 to become legal counsel for Vice President Gore. His replacement, chosen through an open selection process by the Tennessee Supreme Court, was John Knox Walkup, a former chief deputy and solicitor general. Gen. Walkup continued Gen. Burson’s concern with victims of crime by adding a second victim liaison. He appointed two special deputies for litigation to assist in the supervision of the office’s cases. An environmental crime report line was established and the Environmental Division was expanded. The office continued its defense of the constitutionality of a new law on adoption records and of the Tennessee plan for judicial selection and election. In December 1998 Gen. Walkup signed the historic national tobacco settlement. His most notable legal opinions concerned marriages performed by mail-order ministers and charity rubber-duck races. In August 1998 Gen. Walkup announced that he would not seek a new term. An open selection process followed and the Supreme Court chose Court of Criminal Appeals Judge Paul G. Summers as the next attorney general. Gen. Summers took office on Jan. 8, 1999. The Office of Attorney General and Reporter today is very different from the one created in 1831. From a part-time job geared mostly to preparing Supreme Court decisions for publication, the office has evolved into a full-service law office with over 140 attorneys. Handling litigation, preparing legal opinions and giving legal advice to state officials and agencies occupies the office staff. Everything the state does has legal implications. Most of the big issues in state government, from prisons to medical care to school funding, involve major legal analyses that are often conducted in the Attorney General’s Office. If a state action is challenged in court, the Attorney General’s Office defends it. One of the most interesting aspects of the office is the method of appointment. Tennessee is the only state to vest the state Supreme Court with the duty to appoint the attorney general. Over the years several methods have been used to choose the attorney general--legislative appointment, popular election, gubernatorial appointment and judicial appointment. Each method has produced attorneys general who were honest, capable attorneys. The Attorney General’s Office is on the cutting edge of legal issues that have statewide and even national importance. It has a long tradition of providing sound legal advice and representation. This is why the office has always attracted good lawyers. The office’s history of quality legal service to the government and the people of Tennessee is the major reason that so many opinions are requested each year. It is why the office is respected in the state and federal courts, among the members of the bar, and among the other state attorneys general. Hopefully, this tradition will continue well into the future. 

Footnotesa1 Andy D. Bennett is a 1982 graduate of Vanderbilt Law School. He is the chief deputy in the Tennessee Attorney General’s

Office. He wishes to express his appreciation to former Attorney General W. J. Michael Cody for his encouragement and assistance in gathering information for this article. This article reflects only the author’s views and not those of the Office of the Attorney General.

1 Initially, Chapter 8 of the Acts of 1796 established three attorneys general to prosecute in the Washington, Hamilton and Mero districts. In 1801, Chapter 33 replaced this system with one attorney general to prosecute crimes, conduct suits in which the state was concerned and give legal opinions to the governor and the treasurers. In 1807, chapter 13 split these duties between two attorneys general, one for the Mero, Winchester and Robertson districts and one for the Washington and Hamilton districts. Chapter 49 of the Acts of 1809 abolished this system and instituted a system of one solicitor general for each of the five circuits to attend the courts and prosecute.

2 18 Tenn. (unnumbered page) (1838); John W. Green, “Four Attorneys General and Reporters,” 19 Tenn. L. Rev. 1, 3 (1946).

3 John W. Green, “Four Attorneys General and Reporters,” 19 Tenn. L. Rev. at 5-6; Ronnie W. Faulkner, “Return Jonathan Meigs: Tennessee’s First State Librarian,” XLII Tenn. Hist. Q. 151-52 (1983).

4 4 White, Messages of the Governors of Tennessee 1845-1857, at 306-12 (1957).

5 John W. Green, Four Attorneys General and Reporters, 19 Tenn. L. Rev. at 7.

6 Justices of the Tennessee Supreme Court, 1790-1940, 176 Tenn. 863, 870 (1940).

7 40 Tenn. (3 Head) vi (1861); Green, 19 Tenn. L. Rev. at 10.

8 Tennessee Blue Book, 1997-98, 472 (1998); 5 White, Messages of the Governors of Tennessee, 1857-1869, 375 (1957); Durham, Nashville, The Occupied City, 58, 144 (1985); Green, Lives of the Justices of the Supreme Court of Tennessee, 1796-1947, 175 (1947).

9 John W. Green, “Attorneys-General of Tennessee,” 1865-1913, 19 Tenn. L. Rev. 385 (1946).

10 19 Tenn. L. Rev. at 387; Lewis Laska, “A Legal and Constitutional History of Tennessee” 1772-1972, 6 Mem. St. L. Rev. 563, 644 (1976).

11 Republican Banner, Feb. 4, 1870, at 1; Journal of the Proceedings of the Convention of Delegates, 224 (Nashville, 1870).

12 Memorial of Benjamin Lea, 93 Tenn. 719, 720 & 725.

13 Commonwealth of Virginia v. State of Tennessee, 148 U.S. 503, 13 S. Ct. 728 (1893) ; Cumberland Telegraph and Telephone Co. v. United Electric Railway Co., 93 Tenn. 492 (1894) .

14 Resignation of Hon. Charles T. Cates Jr., 127 Tenn. 730, 732 (1913); In Memory of Charles T. Cates Jr., 173 Tenn. 703 (1938); State ex rel Cates v. Standard Oil, 120 Tenn. 86, 110 S.W.2d 565 (1907) .

15 In Memory of Frank M. Thompson, 155 Tenn xxxiii (1927); Kenneth S. Braden, “The Wizard of Overton: Governor A. H. Roberts,” XLIII Tenn. Hist. Q. 273, 288, 290 (1984); Clements v. Roberts, 144 Tenn. 129, 230 S.W. 30, reh. den. 144 Tenn. 152, 231 S.W. 902 (1920).

16 In Memory of Frank M. Thompson, 155 Tenn. xxxiii (1927); Thompson, “Statement of the Duties and Activities of the Attorney General and Reporter of Tennessee and His Two Assistants Under the Laws of this State” (1920); Memorial Service in Memory of the Late Roy H. Beeler, 197 Tenn. 705 (1954); Chattanooga Times, July 21, 1926 at 3.

17 Op. Tenn. Atty. Gen. of Aug. 7, 1931, found in Opinions of the Attorney General of Tennessee from October 1, 1930 to September 30, 1931, 154-55 (E. W. Stephens Pub. Co. 1932).

18 In Memory of L. D. Smith, 166 Tenn. 705 (1933).

19 Memorial Service in Memory of the Late Roy H. Beeler, 197 Tenn. 705 (1954); Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949); Tennessee’s New Supreme Court Building, 172 Tenn. 879, 880 (1938); Nashville Tennessean, Sept. 24, 1954.

20 Resolution in Memory of Justice George F. McCanless, 302 Tenn. xxxiv (1993); 218 Tenn. v (1967).

21 Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40 (1958) ; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691 (1962) .

22 Nashville Tennessean, Sept. 1, 1974 at 1B.

23 Nashville Tennessean, Sept. 3, 1974, at 1; Nashville Banner, Sept. 12, 1974, at 22; Nashville Banner, March 10, 1976, at 25 and 28.

24 Nashville Tennessean, Sept. 2, 1976. at 1.

25 Interview with William B. Hubbard, former chief deputy attorney general, Dec. 8, 1995.

26 Journal of the Debates of the Limited Constitutional Convention of 1977, 1423-24, 1751-76, 1796 (1978).

27 Nashville Banner, June 20, 1984 at C2; W. J. Michael Cody to Andy D. Bennett, Nov. 14, 1995.

28 Secretary of State v. St. Augustine Church, 766 S.W.2d 499 (1989) ; Bemis Pentecostal Church v. State, 731 S.W.2d 897 (1987) ; W. J. Michael Cody to Andy D. Bennett, Nov. 14, 1995.

29 Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993) ; Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) .

36-APR TNBJ 12End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.

496 S.W.2d 480Supreme Court of Tennessee.

STATE of Tennessee By Thomas H. SHRIVER, District Attorney General, on relation of Thomas A. HIGGINS

v.Winfield DUNN et al.

March 19, 1973. | Rehearing Granted In Part April 23, 1973.

Action in nature of quo warranto to have conflicting claims of two persons to office of judge of state Supreme Court judicially determined and to have statute providing for nomination, appointment and election of judges in appellate courts of State declared unconstitutional. The Chancery Court, Davidson County, Frank F. Drowota, III, Chancellor, found neither of claimants entitled to the office and declined to make an adjudication of validity of statute, and claimants, attorney general and relator appealed. The Supreme Court, McCanless, J., held that where Governor did not, as statutorily required, order election to fill vacancy caused by death of Supreme Court judge 45 days before biennial election, no one claiming to act by authority called or advertised an election, where no votes were cast for Supreme Court judge in 49 of State’s 95 counties and where, out of more than 668,000 voters, only 4,030 votes, including 3,301 votes for claimant, who began write-in campaign three days before election, were cast for judge, no election for office of Supreme Court judge had taken place. The Court further held that statute providing for nonpartisan election of appellate court judges did not, other than with regard to provision that Appellate Court Nominating Commission was to consist in part of three members of General Assembly, elected by Assembly in joint session, violate State Constitution. Assignments of error overruled. Humphreys, J., dissented and filed opinion and also filed opinion on petitions to rehear. Dyer, C.J., not participating. 

Attorneys and Law Firms

*481 Thomas H. Shriver, Dist. Atty. Gen., Thomas A. Higgins, Nashville, for appellant.

Robert H. Roberts, Asst. Atty. Gen., Nashville, for David M. Pack.

Ward DeWitt, Jr., Nashville, Hewitt P. Tomlin, Jackson, for Thomas F. Turley, Jr.

Cecil D. Branstetter, Nashville, for Robert L. Taylor.

Opinion

OPINION

McCANLESS, Justice.

This suit has two aspects: first, it is an action in the nature of Quo warranto, *482 brought under the authority of Section 23—2801 et seq., T.C.A., in the name of the State of Tennessee by Thomas H. Shriver, District Attorney General, on relation of Thomas A. Higgins, a practicing lawyer and citizen of Davidson County, to have judicially determined the conflicting claims of two persons to the office of Judge of the Supreme Court of Tennessee left vacant by the death of Judge Larry Creson; and, second, it seeks to have declared invalid and unconstitutional Sections 17—701 to 17—716, inclusive, T.C.A., enacted originally as Chapter 198 of the Public Acts of 1971, the statute that provides for the nomination, appointment, and election of judges of the appellate courts of the State.

The Chancellor decreed that neither of the two claimants, Thomas F. Turley, Jr., and Robert L. Taylor, is entitled to the office; but because it was his opinion that it had been unnecessary in reaching that decision to pass upon the validity of Section 17—701 et seq., T.C.A., he declined to make an adjudication of the validity of the statute.

Thomas F. Turley, Jr., and Robert L. Taylor have appealed from the Chancellor’s decree and the District Attorney General and the relator have appealed from his action in declining to rule on the validity of the challenged statute.

The facts were stipulated and the appeals are to the Supreme Court.

On June 19, 1972, Judge Larry Creson, a member of this Court, died at his home in Memphis. The following day, June 20, 1972, Governor Winfield Dunn officially gave notice of the death to the Chairman of the Appellate Court Nominating Commission, established under the provisions of Section 17—701 et seq., T.C.A., (Chapter 198 of the Public Acts of 1971), and requested him to initiate proceedings to nominate three persons eligible for appointment to fill the vacancy.

On July 18, 1972, the Commission selected and submitted to the Governor the names of three persons from the list of those who had been considered for nomination. Those whose names the Commission submitted were Charles W. Miles, III, Mark Anthony Walker, Jr., and Thomas F. Turley, Jr. On July 21, 1972, the Governor announced that he had appointed Mr. Turley to fill the vacancy, the appointment to be effective September 1, 1972.

The Governor did not issue writs of election to the election commissioners of the State, in accordance with Section 17—113, T.C.A., ordering an election to fill the vacancy and there was no publication calling such an election.

On July 31, 1972, Robert L. Taylor publically announced that he was a write-in candidate to fill the vacancy in the election to be held August 3, 1972. The announcement received wide publicity in the newspapers and on the radio and television stations of the State. The news media also gave publicity to a statement by the Governor that Mr. Taylor was not eligible for the office.

In the election of August 3, 1972, throughout the State more than 668,000 persons voted. Of these, 4,030 cast write-in ballots for Judge of the Supreme Court. Votes were cast for the office in 46 counties; Robert L. Taylor received 3,301 votes, Thomas F. Turley 555 votes, and others 174 votes.

After the election of August 3, 1972, Mr. Taylor announced that he had been elected and would fill the office.

On August 18, 1972, the Secretary of State issued Mr. Taylor a certificate of election that contained the recitation that he had ‘been duly elected Judge, Western Division, Supreme Court of Tennessee in the August 3, 1972, General Election.’ On August 23, 1972, Mr. Taylor took the oath as a Judge of the Supreme Court before one of the Chancellors of the State.

On August 19, 1972, the Governor issued Thomas F. Turley, Jr., a commission appointing him ‘Justice of the Supreme *483 Court of the State of Tennessee, effective September 1, 1972, to serve until September 1, 1974, and until he shall have been elected and retained in office pursuant to Section 17—715, Tennessee Code Annotated.’

The complaint in this suit, filed September 21, 1972, named as defendants Governor Winfield Dunn and Secretary of State Joe C. Carr. An amended complaint, filed September 26, 1972, added as defendants David M. Pack, Attorney General and Reporter, Thomas F. Turley, Jr., and Robert L. Taylor.

At the hearing the Chancellor dismissed the suit as to defendants Dunn, Carr, and Pack, and none of the appellants has assigned as error the Chancellor’s action in dismissing those defendants. Attorney General Pack, although dismissed as a defendant, participates in the appeal because of the declaratory judgment aspect of the suit.

At the hearing the Chancellor was of opinion and held that an action Quo warranto lies against the defendants, Thomas F. Turley and Robert L. Taylor. In his memorandum opinion he wrote:‘Section 23—2801(1) is not to be read so narrowly as would give rise to a quo warranto only when someone is actually performing the functions of a given office. This statement is consistent with Tennessee case law. In State, ex rel., Bryant v. Maxwell, 189 Tenn. 187, 224 S.W.2d 833 (1949), the Supreme Court noted that the complaint charged Maxwell with ’. . . unlawfully Attempting to qualify as and hold and exercise the office of a Justice of the Peace of Bradley County. . . .’ 187 (189) Tenn. at 189 (224 S.W.2d 833). (Emphasis added.) Paragraph XIII of the original complaint in Bryant alleged the following:

 “And your relator charges that defendant in pursuant of his fraudulent, irregular and illegal pretended election, has attempted to gain the office of Justice of the Peace and has been sworn in and attempted to qualify and now holds himself out as a Justice of the Peace for the City of Cleveland, Tennessee.’ (Emphasis added.) In Bryant there was no question but that the Attempt to qualify as, hold and exercise the office gave rise to a quo warranto action under Section 23—2801. ‘Such a holding is consonant with the clear legislative purpose underlying the enactment of Section 23—2801. The Supreme Court of Illinois in considering its quo warranto statute stated the underlying legislative purpose in the following terms: “But the motion is resisted solely on the ground the petition does not show the essential fact of possession and User of the office by defendant, which he is charged with having usurped . . . The objection does not go to the merits of the controversy, and No subtle reasoning ought to be indulged to defeat the demand of the people to know by what warrant defendant sets up any claim to the office as alleged.’ (Emphasis added.) People ex rel. Evans v. Callaghan, 83 Ill. 128, 134 (1876). ‘The ‘demand of the people’ to know by what right a man claims title to a public office underlies Section 23—2801. This clear legislative purpose would be defeated were this Court to read the statute so narrowly as to exclude from its scope the two claims here in question; for both Turley and Taylor claim to possess lawful title to the office in question. Each has exerted every effort he deemed appropriate to secure the office. For example, defendant Taylor accepted the Secretary of State’s Certificate of Election, took the oath of office, filed copies of the Certificate of Election and the oath of office with the Clerk of the Supreme Court, reported to the office *484 of the Supreme Court in Memphis and Jackson, appeared in Nashville at the Supreme Court’s session on September 6 ready to assume a seat on the Court, filed a quo warranto to keep Judge Cooper from temporarily occupying the vacant seat, and at all times publicly claimed that he is presently holding this office. While defendant Turley has not been so active in attempting to take the seat, there can be no doubt that he claims rightful title to the office; he was issued a commission by the Governor, and he likewise appeared in Nashville at the Supreme Court’s session on September 6, he has indicated that if his title to the office is vindicated in this action, he will resign his position as United States Attorney General and accept and perform the duties of the office in issue. These considerations are sufficient to sustain an action in quo warranto against both defendants Turley and Taylor under T.C.A. s 23—2801. ‘By holding this to be a quo warranto, the possibility is excluded that this is an election contest. Resolution of the competing claims here at issue does not require the Court to go behind the election returns. Thus, this is not an ‘election contest’ under the case law of Tennessee. Adcock v. Houk, 122 Tenn. 269, 122 S.W. 979 (1909), State, ex rel., Bryant v. Maxwell, 189 Tenn. 187, 244 S.W.2d 833 (1949). Consequently the jurisdiction and venue requirements which operated in ‘election contests’ are not applicable here. This is a quo warranto. The action brought in this Court meets the jurisdiction and venue requirements of quo warranto.’ 

We agree with both the reasoning and the conclusion of the Chancellor that this is an action Quo warranto under Section 23—2801, T.C.A. None of the appellants assigned as error the action of the Chancellor so holding, and the subject is not an issue in this appeal.

We first consider the contention of the appellant, Robert L. Taylor, that he is a lawfully elected and qualified Judge of the Supreme Court of Tennessee. If that contention is valid its validity must depend on the conclusion that this appellant was elected to the office by the write-in vote on August 3, 1972.

Mr. Taylor has assigned four errors in summary as follows: (1) that the Chancellor should have held that the appellant was lawfully elected, (2) that he erred in holding that the recognition of write-in votes ‘would effectively disfranchise the vast majority of the citizens who cast votes in the state wide election on August 3, . . .’, (3) that he erroneously failed to consider the Supreme Court’s past statements that lack of official notice of an election whose time and place are fixed by the Constitution will not vitiate an election, and that those electors who exercise their right to vote cannot be denied the right to have their votes counted by the fact that other electors chose not to vote, and (4) that the Chancellor, by his decision, deprived the appellant of his office and property without due process of law.

The first assignment is directed at the conclusion of the Chancellor, the second and third are offered in support of the first, and the validity of the fourth must depend on the correctness of the Chancellor’s conclusion which the first attacks. It results that the first of these assignments is conclusive of Mr. Taylor’s contention.[1] [2] An election of a Judge or of a District Attorney General to fill a vacancy can be held at no other time than at a biennial election. The election to fill such a vacancy is a special election though it must be held at the same time as an August general election. This appears from the language of the Constitution, Article 7, Section 5. Hanover v. Boyd, 173 Tenn. 426, 121 S.W.2d 120 (1938). 

Article 7, Section 5 of the Constitution of Tennessee provides:‘Civil officers—Election—Vacancies.—Elections for Judicial and other civil officers *485 shall be held on the first Thursday in August, one thousand eight hundred and seventy, and forever thereafter on the first Thursday in August next preceding the expiration of their respective terms of service. The term of each officer so elected shall be computed from the first day of September next succeeding his election. The term of office of the Governor and of other executive officers shall be computed from the fifteenth of January next after the election of the Governor. No appointment or election to fill a vacancy shall be made for a period extending beyond the unexpired term. Every officer shall hold his office until his successor is elected or appointed, and qualified. No special election shall be held to fill a vacancy in the office of Judge or District Attorney, but at the time herein fixed for the biennial election of civil officers; and such vacancy shall be filled at the next Biennial election recurring more than thirty days after the vacancy occurs.’

 

The General Assembly implemented this Section of the Constitution by the enactment of Section 17—112, T.C.A., as follows:

‘Vacancies in office.—Whenever a vacancy, either by death, resignation, or removal, shall occur in the office of a judge of the Supreme Court or Court of Appeals, circuit judge, or chancellor, or judge of a criminal court, or judge of a special court of equal dignity with circuit and chancery courts, the vacancy in such office shall be filled by the qualified voters of the whole state for supreme judges and judges of the Court of Appeals, and of such judicial district for the other judges, at the next biennial election in August, occurring more than thirty (30) days after such vacancy, and in the meantime the governor shall appoint a person learned in the law and constitutionally qualified to discharge the duties of said office until such election can be had. If a vacancy shall occur in the office of a supreme judge or judge of the Court of Appeals, it shall be filled from the grand division of the state in which the vacancy occurs.’

 

These provisions of the Constitution and of the Code require that the vacancy which occurred more than thirty days before the election of August 3, 1972, be filled at that election.

Section 17—113, T.C.A., required the Governor in the circumstances existing to issue a writ of election to all commissioners of election of the state for an election to fill the vacancy. That Section is:‘Writs for special elections.—The governor shall order the election by issuing proper writs of election, giving notice thereof. ‘In the case of supreme judge or appeals judge, the writs shall issue to all county commissioners of elections in the state, and the notice shall be for at least thirty (30) days, by publication in a newspaper in each grand division of the state. In the case of a circuit judge, chancellor, criminal judge or judge of a special court of equal dignity with circuit and chancery courts, the writs shall issue to the county election commissioners throughout the circuit, chancery division or special district for which the election is to be held, and the notice shall be for at least thirty (30) days by publication in one or more newspapers of the said circuit, chancery division or special district. Whenever the vacancy occurs in sufficient time prior to the election date, notice shall be given and candidates will qualify as in the case of other elections for such office, however, where the vacancy occurs too late for such notice and period of qualification for candidates but more than thirty (30) days before the election, notice will be given at least thirty (30) days as above provided and candidates shall have until twenty-five (25) days before such election in which to qualify as provided by law either as a party nominee or as an independent candidate.’ 

*486 The appellant, Taylor, who relies on election to claim the vacancy, must assume the validity of the above quoted statutes and that they were not repealed by the enactment of Chapter 198 of the Public Acts of 1971, carried into the Code as Sections 17—701 to 17—716, inclusive. The effect of the 1971 enactment, if valid, repealed the provisions for the kind of an election as that under which the appellant, Taylor, asserts title to the office he claims.

The office that Judge Creson held became vacant with his death forty-five days before the biennial election. The Constitution required that the vacancy be filled at that election and to execute the requirement of the Constitution, the Legislature enacted 17—113, T.C.A. The Governor did not order the election as required by that Section.

In Barry v. Lauck, 45 Tenn. (5 Cold.) 588 (1868), a case in which the Court held a special election void for want of notice, the Court said:‘But a mere voluntary omission to vote, on the part of those entitled, where a full and fair opportunity has been offered, will not alone avoid the election. Those who did exercise their electoral rights can not be deprived of the fair results of the election, by the mere failure of others to vote. The question is not whether all the legal voters in the district actually expressed their will at the polls, but whether they had the opportunity which the law requires, to do so. ‘This being a special election, notice to the electors was essential to its validity; and for want of this notice, the election, so far as it concerns Macon County, was void. ‘The safety of the State depends upon the preservation of the integrity of the elective franchise and the purity of the elections; and these can only be preserved by requiring the officers charged with duties in regard thereto, to comply with all the essential requisites of the laws placed to guard the franchise against abuse, fraud or violence. ‘In the present instance, the number of registered voters in Macon County who did not vote, was more than sufficient, if they had all voted one way, to have changed the result as declared. We have no means of knowing how their ballots would have been cast if they had voted, and must presume their failure to vote was the result of want of notice; and therefore we have no assurance that the result of this election is an expression of the will of the people of that county, or of the judicial district.’ 

Hanover v. Boyd, supra, involved a special election made necessary by the death of a District Attorney General thirty-one days before an August election. In that case the Governor declined to order a special election and to issue writs therefor and undertook to fill the vacancy by appointment. The Chancery Court thereupon issued a mandatory injunction that required the election commissioners to call and to hold a special election to fill the unexpired term. The commissioners advertised and held the election.

The Court upheld the validity of the election and called attention to the fact that the vote cast in the election for District Attorney General was higher than that in any other office subject to election on that day except for the candidates for sheriff and observed that ‘there can be no question but that the people had adequate notice of the election and that there was a full expression therein by the people.’ The Court continued:

‘The vacancy was a matter of public knowledge. The election machinery was set up. It can make little difference who started the machinery so long as it functioned properly on a proper occasion.’

 

In the case we are considering no one claiming to act by authority called or advertised *487 an election; the appellant, Taylor, began a campaign for write-in votes just three days before the election, no votes at all were cast in 49 of the State’s 95 counties, and only 4,030 of the more than 668,000 persons who vote in other statewide elections undertook to vote for a Supreme Court Judge.

We hold that there was no election for Judge of the Supreme Court on August 3, 1972. We therefore overrule the appellant Taylor’s assignments of error.

The issue now for our consideration is twofold:

(1) Whether or not Sections 17—701 to 17—716, T.C.A., the statutory sections providing for the non-partisan election of judges, are in conflict with Article 6, Section 3 of the Tennessee Constitution and therefore unconstitutional; and

(2) A determination of the rights of the parties under the statute if it is found to be constitutional.

Historically, constitutions have been regarded as providing a permanent framework of government. Customarily, they do not provide the details for exercising governmental power. For obvious reasons they are not intended to establish all the law which, from time to time, may be necessary to meet changing conditions, but only to mark the broad outlines of power.[3] Conflicting provisions of a constitution should be harmonized, if possible, in passing on the intent of the framers. If there should be doubt as to the meaning of language in the constitution or a seeming conflict in its provisions, ‘it is (the) duty of the court to harmonize such portions and favor the construction which will render every word operative, rather than one which will make some words idle and meaningless.’ Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745 (1956). 

Article 6 in Section 3 and 4 provides that the Judges of the Supreme Court, the Chancery Court and other inferior courts shall be elected by the qualified voters, and that their terms of service shall be for eight years. The schedule to the Constitution of 1870 provides that the officers elected at the general election that year shall hold their offices for the terms provided in the constitution, so that the term that was vacated by the death of Judge Creson, as well as the term of every judge now in office began September 1, 1966, and will expire August 31, 1974.

Article 7, Section 4 is in the following words:‘The election of all officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct.’

 

Article 7, Section 7 provides for the general elections to be held on the first Thursday in August preceding the expiration of the terms of judges and other civil officers. It provides also that ‘No special election shall be held to fill a vacancy in the office of Judge or District Attorney, but at the time herein fixed for the biennial election of civil officers; and such vacancy shall be filled at the next Biennial election recurring more than thirty days after the vacancy occurs.’

This constitutional requirement that members of the Supreme Court shall be elected by the qualified voters of the State is not self-executing. The holding of an election envisions much more than fixing a date when it is to be held and providing that only qualified voters shall participate. Provisions must be made by law for nominating and qualifying of candidates, certification of results and the like. State ex rel. Ferguson v. Superior Ct. of King County, (Washington Sup.Ct.) 140 Wash. 636, 250 P. 66. Such executory details can be provided either in the Constitution itself or left to the Legislature. They are entirely absent from Article 6, Section 3.

In passing Chapter 128, Section 1, Acts of 1871, the Legislature at that early date *488 conceived Article 7, Section 4 as needing legislative action. That Act, the origin of the appointing power now expressed in Sections 17—712 and 17—713, T.C.A., gave the Governor power to appoint in case of vacancies, circumscribed, consistent with Article 7, Section 5, by the provision that his appointee could never hold beyond the next general election. This Act did no violence to Article 6, Section 3. It merely supplemented it by providing for a temporary appointment to fill a vacancy until the next general election. Thus, the Legislature as authorized by Article 7, Section 4, exercised the authority vested in it to make provision for ‘the filling of all vacancies not otherwise directed or provided for by this Constitution.’[4] Even where the constitutional provision is held to be self-executing the rule is:‘It is to be observed that even in the case of a constitutional provision which is self-executing the legislature may enact legislation to facilitate the exercise of the power directly granted by the constitution; legislation may be enacted to facilitate the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. Stated differently, the rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution and further the exercise of constitutional right and make it more available.’ 16 Am.Jur.2d, Sec. 95, p. 280.  [5] Aside from the interplay of Article 7, Section 4, there is no direct conflict between Article 6, Section 3 and the Act of 1971. The election under the Act is still to be made at the regular election every eight years by the qualified voters of the State at the next general election. Specific provision is made for the election of the Governor’s appointee at the next general election as provided by the Constitution. Article 6, Section 3, makes no provision for notice, nomination and qualification of candidates even where the vacancy occurs shortly before the next general election. The 1971 Act, of course, makes other

provisions controlling the election of members of the appellate courts, the most notable and far-reaching of which are that the incumbent shall be required to run on his record and not against an opponent and that the Governor shall appoint from a list of three chosen by the Commission created by the Act. 

The purpose of the statute as expressed in its preamble is ‘to assist the governor in finding and appointing the best qualified persons available for service on the appellate courts of Tennessee and to assist the electorate of Tennessee to elect the best qualified persons to said courts; to insulate the justices and judges of said courts from political influence and pressure; to improve the administration of justice; to enhance the prestige of and respect for the appellate courts by eliminating the necessity of political activities by appellate justices and judges; and to make the appellate courts of Tennessee ‘nonpolitical.“

All of these provisions of the Act, it seems to us, derive from the general powers of the Legislature and, with particular reference to the power to fill vacancies in public office, from the express provisions of Article 7, Section 4 and, since none of them is either directly or by necessary inplication contrary to the Constitution, the Act is constitutional and valid.

The Constitution, by Article 6, Sections 3 and 4, requires that the Judges of the Supreme Court and of the inferior courts be elected by the qualified voters. In case of Supreme Court Judges they shall be elected by qualified voters of the State; in case of Judges of the Circuit and Chancery Courts and other inferior courts they *489 ‘shall be elected by the qualified voters of the district or circuit to which they are to be assigned.’

The attack on the statute providing a non-partisan method of filling vacancies in our appellate courts (Chapter 198 of the Public Acts of 1971, now Sections 17—701 to 17—716, inclusive, T.C.A.) is based entirely on the insistence that the voting provided for in Sections 17—714 and 17—715 is not an election within the requirements of Article 6, Section 3, and Article 7, Section 5, of our Constitution.

The Constitution of Tennessee does not define the words, ‘elect’, ‘election’, or ‘elected’ and we have not found nor have we been referred to any provision of the Constitution or of a statute or to any decision of one of our appellate courts defining these words.

There are three instances in which the Constitution provides for referenda and refers to them as elections:

Art. 2, Sec. 29 provides that the credit of no County, City, or Town shall be given or loaned to or in aid of any person, association or corporation, except upon al Election to be first held by the qualified voters of such county, city or town, and the assent of three-fourths of the votes cast in said Election. This provision was adopted in 1870.

Art. 11, Sec. 3 includes a new provision with regard to amending the Constitution. The proposed amendment may be submitted to the qualified voters ‘at an Election’. This is one of the 1953 amendments.Art. 11, Sec. 9 provides for the ratification of private acts, one of the methods being by ‘approval in an Election by a majority of those voting in said Election,’ etc. This provision, as we know, originated in 1953.1

It seems to us that if the Constitution itself denominates these methods of ratification as elections, it cannot be that Chapter 198 is unconstitutional because the elections therein provided for are limited to approval or disapproval. So are the elections provided in Sections of the Constitution referred to above. This is particularly the case, since Article 7, Section 4 reposes wide discretion in the Legislature with respect to elections and the filling of vacancies.[6] The District Attorney General and the relator, arguing that Chapter 198 of *490 the Public Acts of 1971 is invalid, insist that the act is unconstitutional because the Appellate Court Nominating Commission therein provided for is to consist in part of three members of the General Assembly, elected by the General Assembly in joint session. (Sec. 2, Subsec. 3, Ch. 198, Pub. Acts of 1971; Sec. 17—702(3), T.C.A.) They contend that this provision violates Article 2, Sec. 10 of the Tennessee Constitution which includes this prohibition:

‘No Senator or Representative shall, during the time for which he was elected, be eligible to any office or place of trust, the appointment to which is vested in the Executive or the General Assembly, except to the office of trustee of a literary institution.’

  

In State ex rel. Carey v. Bratton, 148 Tenn. 174, 253 S.W. 705 (1923), the Court adjudged that the election by the General Assembly of one of its members to a place on the State Election Commission was void. The Court said:

‘An ‘office’ is a public charge or employment, the duties of which are prescribed by law, and he who performs the duties is an officer. Day v. Sharp, 128 Tenn. (340), 346, 161 S.W. 994; 29 Cyc. 1361—1367. ‘Positions which by article 2, s 10, of the Constitution legislators are forbidden to hold, are such as impose duties prescribed by law, and not by contract. Lewis v. Watkins, 3 Lea (174), 183; U.S. v. Maurice, Fed.Cas.No. 15, 747, 2 Brock. (96), 102.’ 

Membership on the Appellate Court Nominating Commission is an office or place of trust within the meaning of Art. 2, Sec. 10 of the Constitution and the act of the General Assembly in electing three of its members to the Commission was void.[7] Since the act provides for the election of the legislative members of the Commission by a method that is unconstitutional then that part of the act requiring such election is unconstitutional and void; but Section 18 of the Act in express terms provides that ‘if any of its sections, provisions, exceptions, sentences, clauses, phrases, or parts thereof be held unconstitutional, void and/or invalid, the remainder of the act shall continue in full force and effect, it being the legislative intent now hereby declared that this act would have been passed even if such unconstitutional, void and/or invalid provision had not been included therein.’ 

The General Assembly having thus declared that if any section of the statute should be unconstitutional and void the remainder of it should continue in full force and effect, and it appearing to us that the portion remaining is complete in itself and capable of being executed wholly independent of Section 2, Subsection 3, we elide that section and adjudge that the statute was not rendered void because of the inclusion in it of that unconstitutional part. Davidson County v. Elrod, 191 Tenn. 109, 232 S.W.2d 1 (1950).

We conclude that Chapter 198 of the Public Acts of 1971, codified as Sections 17—701 to 17—716, inclusive, T.C.A., with the exception of Subsection 3 of Section 2 of Chapter 198 (paragraph (3) of Section 17—702, T.C.A.) is not in conflict with the provisions of the Constitution of our State.[8] The appellant, Turley, has assigned the following errors in support of his contention that he is entitled to fill the vacancy:(1) ‘The Chancellor erred in holding that the appointment of the defendant Thomas F. Turley, Jr. as Associate Justice of the Supreme Court and the commission issued relative thereto, was invalid.’ (2) ‘The Court below erred in relying on and applying the provisions of T.C.A. Sec. 17—112 to the case at bar.’ (3) ‘The Chancellor erred in holding and ruling that the Governor’s power of *491 appointment to fill such a vacancy as the one before the Court was limited to the period between the date of the vacancy which occurs thirty days prior to the next general election and the last day of August next following that election.’ (4) ‘It was error for the Court below to hold that the vacancy which the Governor attempted to fill was created by his own improper action.’  

The first assignment is general and challenges the conclusions the Chancellor reached with regard to this appellant’s contentions. It is necessary that we first consider his other assignments.

Judge Creson’s term of office would have expired August 31, 1974. His death occurred more than thirty days before the August election. This circumstance made it necessary that the vacancy be treated as having two parts, to be filled in two ways: (1) that part ending August 31, 1972, which the law directed to be filled by the Governor’s appointment, and (2) that part beginning September 1, 1972, and ending August 31, 1974, which could be filled in no way other than by election. The enactment of Chapter 198 provided that the Governor should make his appointments to fill vacancies in the appellate courts only from lists of eligible persons submitted by the nominating commission. It did not undertake to grant to the Governor the authority to appoint for a term beginning the following September first when the vacancy occurs more than thirty days before the biennial August election. On the contrary, Section 17—712(2) provides:

‘The terms of all justices or judges appointed under this act shall expire August 31 following the next August biennial general election recurring more than thirty (30) days after the vacancy.’

 

The Governor made no appointment to fill that part of the term expiring August 31, 1972. He had the authority to make the appointment but did not exercise that authority. He appointed Mr. Turley to that part of the term beginning September 1, 1972, and by the express terms of Section 17—712(2) the peroid to which the Governor could appoint him already had expired before his attempted appointment became effective.[9] Mr. Turley assigns as error the Chancellor’s holding that the Governor’s power of appointment to fill the vacancy that existed was limited to that part of the term that expired on August 31, 1972, insisting that Section 17—112, T.C.A., was repealed by Section 17 of Chapter 198 of the Public Acts of 1971, which provides:

‘All laws or parts of laws in conflict with the provisions of this act but not limited to portions of T.C.A. Section 8—1804, T.C.A. Section 17—112, and T.C.A. Section 2—102, are hereby repealed.’

  

This assignment must be overruled, because there is no conflict between Chapter 198 and Section 17—112, T.C.A. Chapter 198 imposes conditions upon the Governor’s power to appoint but does not affect the term for which he can appoint. Section 17—112, T.C.A., is repealed by Chapter 198 only to the extent that the terms of the two statutes may come into conflict.

We hold that the Governor was without power to appoint Mr. Turley to the term to which he appointed him. We therefore overrule his assignments of error and dismiss his appeal.

We overrule the assignments of error of the appellants. The decree will be pronounced in accordance with this opinion.

CHATTIN, J., and McAMIS and WILSON, Special Justices, concur.

HUMPHREYS, J., dissents.

DYER, J., did not participate.

HUMPHREYS, Justice (dissenting).

I take advantage of the petitions to rehear by all the parties to edit my original *492 dissent. This I do by withdrawing the original dissent and filing this one in its place. I concur in the result of much of the majority opinion. So, for the sake of brevity, I shall only mention that part from which I dissent.

I dissent from the redefinition of a constitutionally mandated election to permit only a referendum, so that no one can run in the August election except the appointee.

I dissent from the holding that no member of the General Assembly can serve on the nomination commission.

To the extent that the Modified Missouri Plan provides for the selection of possible appointees by a commission, it is constitutional under Article 7, s 4 of the Constitution of Tennessee which provides, ‘The election of all officers and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct.’

This part of the plan is a vast improvement over anything we have had, and since the entirely unnecessary exclusion of legislators from such a commission jeopardizes this arrangement, I must dissent.

My dissent from the holding that no member of the Legislature can serve on this commission is based on the simple proposition that, since the manner of filling vacancies is expressly entrusted entirely to the Legislature by Article 7, s 4 of the Constitution, and so is legislative business, legislators can serve on the commission without violating Article 2, s 10. Article 2, s 10 provides that ‘/n/o Senator or Representative shall, during the time for which he was elected, be eligible to any office or place of trust, the appointment to which is vested in the Executive or the General Assembly except to the office of trustee of a literary institution.’ It would seem to be clear that Article 2, s 10, applies to offices that are not legislative, and not to commissions that are designed to carry out legislative business. Since Article 7, s 4 of the Constitution declares that power to

fill vacancies on this Court is peculiarly the business of the Legislature, it is difficult to conceive how Article 2, s 10 prohibits this. Suppose the Legislature had provided for a commission of nine of its own members to recommend appointees to the Governor, could it be said that this commission would be unconstitutionally constituted? Suppose it had passed a law whereby it filled vacancies, would this be unconstitutional? The answer must be in the negative. Then, how can it be that three members of the Legislature cannot serve on such a commission?

The majority opinion cites State ex rel. Carey v. Bratton, 148 Tenn. 174, 253 S.W. 705 (1923), as authority for invalidating legislator membership on the commission. This case is not in point. It involved a legislator appointed to serve on the State Election Commission. There is nothing in the Constitution that delegates to the Legislature the business of running state elections. So, it was entirely reasonable that this Court would apply Article 2, s 10 to the appointment. The present case presents an altogether different question.

If I am not clearly right about this, there is at least enough doubt to make the principle of Wallace v. Grubb, 154 Tenn. 655, 289 S.W. 530 applicable. That case declares that Article 2, s 10 should be narrowly construed so as to uphold the eligibility of the appointee whenever possible. Under this case, a legislator should not be removed from the commission.

If this part of the Plan is unconstitutional, the balance of it cannot be saved by the doctrine of elision. It is fundamental that the whole statute must fall if the part held unconstitutional is so connected with the statutory scheme, and such an indispensable part thereof, that it is not likely the Legislature would have enacted the act without the elided provision. This proposition is spelled out in a number of cases which can be found in 17 Tenn.Digest Statutes, s 64(1). For example, in *493 Heymann v. Hamilton National Bank, 151 Tenn. 21, 266 S.W. 1043, this Court said that elision is not permissible if the result attained defeats the evident legislative intent.

Since the evident legislative intent was to create a commission representative of the legislative, judicial and executive interests in the process of nominating appellate and Supreme Court judges, any act of elision by this Court which leaves such a commission unrepresentative of one of these three major interests, leaves an act which is presumptively inconsistent with the legislative intent.

The part of the Plan that does away with the popular election of judges, and substitutes a recall election, is so obviously contrary to the arrangement in our Constitution, as presently written, for the people to have the right both to Nominate and Elect their constitutional officers, that it is difficult to explain why it is unconstitutional. How do you explain the obvious? All you can do is to point out the plain clear words of the Constitution and say, ‘read it, and follow it’.

Article 6, s 3 provides ‘The Judges of the Supreme Court shall be elected by the qualified voters of the State’. Judges as well as other civil officers contemplated by the Constitution are to be elected as provided for by Article 7, s 5 of our Constitution. This section says in part ‘Elections for Judicial and other civil officers shall be held . . .’, and then goes on to say that they shall be held on the first Thursday in August next preceding the expiration of their respective terms of service. This section of the Constitution fixes the day for computing the term of office of all state judicial and civil officers, and clearly contemplates one general popular election to be held on the day fixed for all those in office whose terms expire on August 31.

Ever since the adoption of our first constitution in 1796, the election of constitutional and civil officers has been by popular vote, in elections in which the people have had the right to nominate their candidates and elect their officers; elections in which people have had the right to do as Judge Taylor did, to run without nomination. Now, the majority says that the Legislature can abolish this once constitutional right to choose and elect judges by redefining the provision so as not to require popular elections, but to permit these officials, once they get in office by appointment, to remain there until some undefined percent of the electorate votes to recall them.

I say indefinite percentage, because, although the determination of a popular election has always been on the basis of the candidate who received the most votes, this is not true of recall referendums. Recalls, not pitting one candidate against another, are not based on who gets the most votes, but upon a percentage fixed in the law under which the referendum is held. The Constitution does not fix this percentage. The percentage is not implied by the nature of the referendum as in a popular election. This leaves the Legislature free to fix the percentage as it chooses.

As important, and potentially troublesome as it is, nothing is said in the majority opinion about the effect of this holding on the election of civil officers. Article 7, s 5 not only provides for the election of judges, it provides for the election of all civil officers referred to in the Constitution. Having said Article 7, s 5 can mean no more popular elections for judges, this of course means that the Legislature can do away with popular elections for civil officers. This means that the Legislature can

constitutionally keep all constitutional civil officers in office until they are recalled by a percentum of the vote the Legislature chooses to fix.

I do not suggest that the Legislature would be so irresponsible as to do this. I simply point out that the majority in providing for judges (whose offices, I agree, should be depoliticalized to the greatest extent possible), has had to free constitutional *494 civil officers from the requirement of popular election, because judges and civil officers are both dealt with in the same article and section, and for that matter in the same sentence, in the Constitution.

It is not necessary for me to dwell on the possible chaotic consequences of the construction placed on Article 7, s 5, by the majority; and this is not, necessarily, the point. The point is that by redefining Article 7, s 5 to permit judges and civil officers to remain in office until recalled, the whole purpose and intent of the Constitution to have government by popular elections has been destroyed.

The Constitution of Tennessee, Article 2, s 1, declares that the powers of government shall be divided into three distinct departments: the Legislative, Executive and Judicial. s 2 of Article 2, declares that no person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except as permitted by the Constitution.

The very existence of constitutional government depends upon the preservation of this arrangement. It is so important that nothing should ever be done that would impair it.

As long as each of these branches of government was answerable alone to the people it could maintain its independence, and thus continue inviolate and in perpetuity the grand constitutional scheme. But now the deadly serious question that arises is, whether, since the constitutional plan for election of one of these branches of government by the people, and the plan for the election of all civil officers by the people, has been held to be within the power of the Legislature, both the other branches of government are in jeopardy. Because, if the provision for the election of Supreme Court judges and all other judges, and all constitutional civil officers, can be read as requiring only a recall election, what is to prevent the provisions in Article 2, for the election of representatives and senators, and the provisions of Article 6, s 5, for the election of district attorneys general from being construed in the same way. Virtually the same language is used in each instance. The election that is contemplated in these sections of the Constitution is no more defined than that provided for judges and civil officers. So, if ‘elections’ by the qualified voters in Articles 6 and 7, mean a recall referendum, then, of course, it can mean recall referendums in the Articles providing for the election of representatives, senators, district attorneys general, and all other civil officers.

It is not enough to say that this may not happen. The fact that it is possible is enough to condemn the Plan.

Let me say in conclusion that I dissent from the majority opinion for the further reason that, by turning over to the Legislature the right to say how Supreme Court Judges shall be chosen, this Supreme Court abdicates its place as a coequal part of our tripartite state government, and subordinates itself to the Legislature. Of this subordination, there can be no doubt. Where once the Constitution protected this Court, and preserved it, it must now take its chances with the Legislature. Today the Plan provides for recall by majority vote. But this is only statutory, so what is to keep the Legislature from providing for recall by a different percentage. For that matter, what is to keep it from saying that a judge must be approved by an affirmative vote of such a percentage as will empty the Bench of presently serving judges? If all of this is truly within the power of the Legislature, there is nothing to save this Court.

We are today witnessing a sad consequence of this subordination of this Supreme Court to the Legislature. Judicial notice can be taken of the fact that a bill has been introduced in the Legislature to repeal the Modified Missouri Plan. This bill may be defeated. But, that need not be the end of it. Another bill can be introduced next session, or the session after *495 that, ad infinitum, so that Supreme Court Judges and, possibly, all judges, can be kept in attendance by the Legislature, hat in hand, so to speak, whenever it suits the purpose of some disgruntled representatives to snap the Court to attention with a bill to change the manner of their election. If this is not subordination, nothing is. If this is not more political than election by the people, nothing is. Have we not, like Esau, sold our precious birthright, equality and freedom for a mess of potage, a cheap, easy way to be perpetuated in office? I say this Court has opened Pandora’s Box, and, that although the evils locked up therein may not surface immediately, and in fact may never surface, there is no longer any constitutional guarantee that they cannot, as was the case before the majority opinion was written.

OPINION ON PETITION TO REHEAR

McCANLESS, Justice.

In this cause the Attorney General and Reporter has filed his petition to rehear, seeking a clarification of the Court’s majority opinion, filed March 19, 1973, insisting that that opinion leaves undetermined the manner in which the existing vacancy on the Supreme Court is to be filled. This is not a correct understanding of our opinion. We grant the petition to rehear in order to explain and clarify this feature of it.

We held that there was no election as the Constitution requires for that part of the term that began on September 1, 1972. The vacancy exists. We also held valid Chapter 198 of the Public Acts of 1971 (Sections 17—701 to 17—716, inclusive, Tennessee Code Annotated), the statute under the authority of which vacancies on the Supreme Court must be filled.

Nothing in our opinion was intended to prevent the Governor from now giving notice to the Appellate Court Nominating Commission of the existence of the vacancy caused by the death of Justice Creson and receiving nominees therefrom all as provided by Chapter 198 of the Public Acts of 1971.

CHATTIN, J., and McAMIS and WILSON, Special Justices, concur.

ON PETITION TO REHEAR

McCANLESS, Justice.

Defendant Taylor has filed a petition to rehear. It points out no decisive matter of law or fact overlooked, but argues matters which this defendant insists were improperly decided.‘The office of a petition to rehear is to call the attention of the court to matters overlooked, not those things which counsel supposes were improperly decided after full consideration.’ West v. Carr, 212 Tenn. 367, 370 S.W.2d 469 (1963). 

The petition is denied.

CHATTIN, J., and McAMIS and WILSON, Special Justices, concur.

DYER, C.J., not participating.

ON PETITION TO REHEAR

McCANLESS, Justice.

Defendant Turley has filed an earnest petition to rehear. He insists we misconstrued and misapplied T.C.A. Section 17—712(2). We disagree.

At the time the Governor appointed Turley by constitutional mandate he could only appoint him subject to the election of August 3, 1972. Article 7, Section 5, Constitution of Tennessee.

To construe and apply T.C.A. Section 17—712(2), as insisted by this defendant, would amount to an unconstitutional application of that Section.

The petition is denied.

*496 CHATTIN, J., and McAMIS and WILSON, Special Justices, concur.

DYER, C.J., not participating.

HUMPHREYS, Justice (dissenting on rehearing).

While maintaining my dissent, I agree, as insisted by the petition to rehear filed by the Attorney General, that there is now nothing to bar the implementation of the Plan to fill the existing vacancy on this Court. My mind is satisfied that the Plan is unconstitutional, but, if we are to operate under it, the vacancy on the Court must be filled under it.

During the argument of this case at Knoxville, and in conference, I expressed the opinion that if neither Mr. Turley nor Mr. Taylor was entitled to the office, and if the Plan was to be upheld, it would be necessary to proceed anew under the Plan, the principle of functus officio so requiring. I am still of that opinion.

Turning to Mr. Turley’s petition to rehear: It makes the point that, inasmuch as his appointive term did not commence until September 1, 1972, it could not have expired on August 31, 1972. And, as there is nothing in s 17—712(2) T.C.A., nor in any other provision of the Plan to prohibit the making of the appointment after that date, his appointment is valid. Mr. Turley argues further that if the Plan is valid, so that the whole subject matter is subject to control by the legislature, then his appointment on September 1, 1972 was valid.

Assuming the validity of the Plan, Mr. Turley is, of course, correct. The majority in its original opinion said Mr. Turley’s appointment was invalid, because, ‘by the express terms of s 17—712(2) the period to which the Governor could appoint him (Mr. Turley) already had expired before his attempted appointment became effective.’

It is perfectly clear from the statute that, instead of expressly applying to cut off the appointing power on August 31, it expressly applies only to Judges already appointed and serving terms of office, and Mr. Turley was not in this category. The statute reads as follows:

‘17—712(2). The Terms of all justices or judges Appointed under this act shall expire August 31 following the next August biennial general election recurring more than thirty (30) days after the vacancy.’

 

How this language affects the power to appoint after September 1, I shall never understand. Proof that it does not is to be found in the majority’s rehear opinion, holding that now an appointment can be made.

I concurred in the result reached by the majority that Mr. Turley’s appointment was void on the ground that this was required by that part of Article 7, s 5 of the Constitution which provides, ‘and such vacancy shall be filled at the next Biennial election recurring more than thirty days after the vacancy occurs.’, not the statute.

I am compelled to concede, however, that if the clear mandate of our Constitution that Supreme Court Judges shall ‘be elected by the qualified voters’, can be read as authorizing a plan under which the qualified voters never get to elect a Supreme Court Judge, then there is no reason at all not to read s 17—712(2) T.C.A. any way that gets the desired result.

Judge Taylor’s original and supplemental petitions to rehear consist largely of reargument of the grounds on which he originally relied. I could not agree with them then, and I cannot agree with them now.

Judge Taylor has, however, placed before the Court portions of the Constitutional Convention of 1870, which make it perfectly clear that before the resolution of the question, whether the Supreme Court should be elected by the qualified voters of the State or be appointed as are federal judges, there was much debate, and that it was finally decided that Supreme Court *497 judges should be elected by the qualified voters. All of this discussion was summarized in Article 6, s 3 of the Constitution, where it declares ‘The Judges of the Supreme Court shall be elected by the qualified voters of the State.’ This declaration of the manner of choosing Supreme Court Judges is so plain and clear that it does not require support by historical references, as relevant as these references are. If the plain command is going to be ignored, there is no reason to hope the discussion giving rise to the command will be noticed.

Hopeless, though the offering of the history was, I thank Mr. Taylor for placing it before the Court.

Footnotes1 Elections

5-401——5-406 “election” to remove county seat.

5-1101——5-1025 “election” to authorize general obligation bonds.

5-1108——5-1109 “election” to authorize postwar public works bonds.

6-1519 “election” to authorize bonds for municipal electric plants.

6-1610 “election” to authorize municipal public works bonds.

6-1804 “election” to adopt city manager municipal charter.

6-1808——6-1809 “election” to surrender city manager charter.

6-2907 “election” to authorize industrial building bonds.

6-3003 “election” to adopt city manager-council charter.

6-3120——6-3121 recall “election” to recall councilmen under that charter.

6-3422 “election” to authorize certain municipal bonds.

65-705——65-709 “election” to authorize subscription for railroad stock.

67-3053 “election” to authorize local sales tax.

249 S.W.3d 331Supreme Court of Tennessee,

at Nashville.

STATE of Tennessee, ex rel. John Jay HOOKER, Appellant,v.

Brook THOMPSON, State of Coordinator of Elections Riley Darnell, Secretary of State, Charles Burson, Attorney General of Tennessee, Don Sundquist, Governor of the State of Tennessee and Penny White, Justice of the Supreme Court of Tennessee, In their respective official capacities,

Defendants.State of Tennessee ex rel., Lewis Laska, Appellant,

v.Brook Thompson, Coordinator of Elections.

Oct. 2, 1996.

SynopsisBackground: Individual seeking to have his name placed on ballot for statewide election to office of Supreme Court justice filed pro se petition for mandamus. The Chancery Court, Davidson County, Walter C. Kurtz, Chancellor by Interchange, denied petition. Subsequently, another individual seeking same relief filed suit seeking mandamus, declaratory and injunctive relief. The Chancery Court, Irvin H. Kilcrease, Jr., Chancellor, dismissed. Subsequently, both cases came before Supreme Court, and all sitting justices disqualified themselves. 

Holdings: Assuming jurisdiction of both matters, the Supreme Court held that: [1] yes/no retention elections did not violate provisions of State Constitution requiring that judges of Supreme Court be “elected by the qualified voters,” and requiring that “elections shall be free and equal,” or separation of powers provision; [2] unless judicial evaluation commission recommends retention of appellate court judge running to fill unexpired term of that judge’s predecessor, statutory provisions for yes/no retention vote do not apply; [3] extension of qualifying deadline for election to position as Supreme Court justice was appropriate; [4] vacancy created by resignation of “at large” judge of Supreme Court residing in eastern grand division had to be filled from eastern grand division; and [5] for purposes of statutory residency requirements, vacancy to be filled was that created by resignation of justice, rather than failure of justice subsequently appointed by governor to receive majority of votes for retention. 

Ordered accordingly.

Attorneys and Law Firms

*333 John J. Hooker, Pro Se.

Robert L. Delaney, Nashville, for Appellant.

Bob Lynch, Jr., Nashville, for Laska.

John K. King, Pro Se.

Charles W. Burson, Attorney General and Reporter, Andy D. Bennett, Associate Chief Deputy, Michael W. Catalano, Associate Solicitor General, for State Defendants.

Opinion

OPINION OF THE SPECIAL SUPREME COURT OF TENNESSEE

BY THE SPECIAL COURT.

These consolidated cases arise from the efforts of appellants, Lewis Laska and John Jay Hooker, to have their names placed on the ballot for the August 1, 1996, statewide election to the office of Supreme Court Justice. The deadline for filing nominating petitions for this election was 12:00 noon on May 16, 1996, in accordance with T.C.A. § 2–5–101. 

I.

PROCEDURAL BACKGROUND

Prior to the filing deadline, both appellants sought to obtain a nominating petition from Appellee Brook K. Thompson, the State Coordinator of Elections, pursuant to T.C.A. § 2–5–103. Mr. Thompson refused to furnish Appellants Hooker and Laska with a nominating petition. Mr. Thompson informed appellants that pursuant to T.C.A. § 17–4–101, et seq. (popularly known as the “Tennessee Plan”), Justice Penny J. White1 would be running unopposed on the ballot in a “retention election,” whereby hers would be the only name on the ballot and the public would be given the opportunity to vote “yes” or “no” *334 as to whether she should be retained as a Supreme Court Justice. On May 13, 1996, Mr. Laska sought injunctive relief in the United States District Court for the Middle District of Tennessee, Lewis Laska v. Brook Thompson, Docket No. 3:96–0441, requesting the federal court to order Defendant/Appellee Thompson to furnish him with a nominating petition.2 United States District Court Judge Thomas A. Higgins issued an order on May 16, 1996, dismissing the lawsuit.3 On May 16, 1996, upon learning that his federal court action had been dismissed, Mr. Laska attempted to intervene in a similar case which had been filed on May 15 by Mr. Hooker in the Chancery Court for Davidson County, Tennessee, State ex rel. John Jay Hooker v. Brook Thompson, in his Capacity as Coordinator of the Division of Elections, Office of the Secretary of State, et al., Docket No. 96–1519. Mr. Hooker had filed a pro se Petition for Mandamus, seeking to have the Chancellor issue a writ of mandamus ordering the issuance to him “and all others similarly situated” of a nominating petition for the office of Supreme Court Justice. In his request for relief, Mr. Hooker also requested “such other relief as the court deems just and equitable, including adjudication that said statutes 17–4–101, et seq. are unconstitutional under both the U.S. and Tenn. Consts. [sic].” On May 16, 1996, Circuit Court Judge Walter Kurtz, sitting as Chancellor by interchange, issued an order denying Mr. Hooker’s Petition for Writ of Mandamus on grounds that Mr. Hooker lacked standing to bring the action.4 Mr. Laska’s Motion to Intervene was not addressed in that order. On May 22, 1996, Appellant Laska filed a separate lawsuit in Chancery Court for Davidson County, State of Tennessee ex rel. Lewis Laska v. Brook Thompson, in his Official Capacity as Coordinator of the Division of Elections, et al., Docket No. 96–1585, seeking a writ of mandamus, as well as declaratory and injunctive relief. By Memorandum and Order entered on May 31, 1996, Chancellor Irvin H. Kilcrease dismissed Mr. Laska’s action, holding that Justice White was correctly on the ballot in a “yes/no” retention election under the Tennessee Plan.5 Following a series *335 of appellate maneuverings, these cases came before the Supreme Court. On June 26, 1996, all sitting Justices on the Tennessee Supreme Court disqualified themselves from further proceedings in these cases.6

 On July 2, 1996, this Special Supreme Court was sworn in by Justice A.A. Birch, Jr., Chief Justice of the regularly constituted Tennessee Supreme Court. Given the impending election date of August 1, 1996, and the fact that these matters had been pending in the Tennessee court system since mid-May of this year, this Court commenced deliberations immediately after the oath of office. On July 2, 1996, this Court entered Orders assuming jurisdiction of these matters under T.C.A. § 16–3–201(d) to bypass the Court of Appeals, finding that these cases are of unusual public importance in which

there is special need for expedited decision and which involve the right to hold or retain public office and issues of constitutional law. Following oral argument,7 in an attempt to salvage the validity of the August 1, 1996, election, this Court issued a series of Orders on an expedited basis in these consolidated cases, while noting that a more detailed Opinion would follow in due course. On July 5, 1996, this Court ordered that Appellant Hooker could not be placed upon the ballot because he failed to meet the requirement that a candidate for Supreme Court Justice must be an attorney licensed to practice law in Tennessee, remanded Appellant Laska’s case to the Chancellor for a ruling as to whether he was, as he claimed, a bona fide resident of the Western Grand Division and ordered the Chancellor to issue a writ of mandamus forthwith if he found that Mr. Laska was a bona fide resident of the Western Grand Division. This Court also ordered on July 5 that as an equitable matter, Justice White should be deemed to have filed a qualifying petition for her office. On July 8, 1996, this Court vacated the portion of its July 5 order remanding Appellant Laska’s case back to the Chancellor, on the ground that T.C.A. § 17–1–301(b) requires that the vacancy for which Justice White was running must be filled from the same grand division of the state in which the vacancy had occurred, that being the Eastern Grand Division; inasmuch as Mr. Laska had made no claim to be a resident of the Eastern Grand Division, this Court ordered that his name could not be placed on the ballot. 8 On July 8, 1996, John King, the putative Republican candidate for the office held by Justice White, filed an amicus curiae brief contending that he should be entitled to equitable relief similar to that granted Justice White, in the form of an extension of the qualifying deadline. Upon due consideration of Mr. King’s contentions, on July 9, 1996, this Court ordered the equitable relief of extending the deadline for all candidates for the Eastern Grand Division Supreme Court vacancy from May 16, *336 1996, to 4:00 p.m., July 12, 1996. The Attorney General filed a Motion for Clarification, seeking clarification as to whether the equitable relief granted in this Court’s Order of July 8, 1996, extended to intermediate appellate judges, who were not parties to these consolidated cases. The Court entered an Order on July 10, 1996, limiting the equitable relief to these cases sub judice, for which this Special Supreme Court was commissioned.9

 The following is this Court’s opinion explaining the legal basis for its Orders in upholding the constitutionality of the Tennessee Plan of judicial selection, while holding that the Plan is not applicable to the August 1, 1996, Supreme Court election and granting the equitable relief of extending the qualifying and nominating deadlines for the August 1, 1996, election for office of Supreme Court Judge. 

II.

CONSTITUTIONALITY OF THE TENNESSEE PLAN

In the consolidated appeals before the Court, both appellants and amicus curiae John King have attacked the validity of T.C.A. § 17–4–101, et seq. (the “Tennessee Plan” of appellate judicial selection) as unconstitutional under various provision of the Constitution of Tennessee, specifically Article I, Sections 1, 4 and 5,10 Article II, Section 1,11 Article VI, Section 3,12

and *337 Article XI, Section 16.13 Appellant Hooker has also claimed that the Tennessee Plan violates his rights under the 14th Amendment to the United States Constitution. [1] At the outset, we note that laws enacted by the legislature are entitled to a presumption of constitutionality; see, e.g., State ex rel. Maner v. Leech, 588 S.W.2d 534, 540 (Tenn.1979) . This Court dismisses as without merit, and irrelevant to these cases, appellants’ contentions that the Tennessee Plan of appellate judicial selection violates any of the following provisions of the Constitution of Tennessee: Article I, Sections 1 (“All power inherent in the people—Government under their control –”) and 4 (“No religious or political test –”) and Article XI, Section 16 (“Bill of rights to remain inviolate –”). However, Appellants’ arguments regarding Article I, Section 5 (“Elections to be free and equal—Right of suffrage”); Article II, Section 1(“Division of powers”), and Article VI, Section 3 (“Supreme court judges” to be elected by the qualified voters of this State) raise substantial constitutional issues and bear further analysis and discussion. [2] [3] The gravamen of appellants’ position is that a “retention election,” as contemplated under the Tennessee Plan, is not a “free and equal” election and deprives the qualified voters of this state of the opportunity to elect Supreme Court judges. The issue of whether yes/no retention elections violate the Constitution of Tennessee has previously been decided by the Tennessee Supreme Court in the case of State ex rel. Higgins v. Dunn, 496 S.W.2d 480 (Tenn.1973) , and no compelling

reason has been given to persuade this Court that it should disturb that ruling. The Higgins opinion specifically dealt with the issue of whether a “retention election” involving only a yes/no vote is the type of election that is contemplated in Article VI, Section 3 of the Tennessee Constitution, answering that question in the affirmative. The Higgins Court noted:

The Constitution of Tennessee does not define the words, “elect”, “election”, or “elected” and we have not found nor have we been referred to any provision of the Constitution or of a statute or to any decision of one or our appellate courts defining these words. Id. at 489.

In the absence of a definition of “election” to the contrary, the Higgins Court then cited a number of instances in which the Tennessee Constitution provides for referenda and refers to them as “elections.” Thus, the Court reasoned:

It seems to us that if the Constitution itself denominates these methods of ratification as elections, it cannot be that Chapter 198 is unconstitutional because the elections therein provided are limited to approval or disapproval. So are the elections provided in Sections of the Constitution referred to above. Id. at 489.

Although the dissent of Justice Humphreys makes a number of good points, this Court concludes that it must follow the majority in Higgins. To rule the meaning of the term “election” as used in the Tennessee Constitution is limited to the popular concept of an election (i.e., a choice among one or more candidates in which the candidate with the most votes *338 wins the office), would be to hold, in effect, that the Tennessee Constitution uses an internally inconsistent definition of “election.” This conclusion is further dictated by the fact that the framers specifically provided for a choice among candidates for the election of the Governor; Article III, Section 2 provides:

The Governor shall be chosen by the electors of the members of the General Assembly, at the time and places where they shall respectively vote for the members thereof ... The person having the highest number of votes shall be Governor; but if two or more shall be equal and highest in votes, one of them shall be chosen Governor by joint vote of both Houses of the General Assembly.

Thus, it being the duty of this Court, if there is a doubt as to the meaning of the Constitution or a seeming conflict, “... to harmonize such portions and favor the construction which will render every word operative ...,” Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745 (1956), this Court holds that the yes/no retention vote provided for in the Tennessee Plan is in compliance with the Article VI, Section 3 mandate of the Tennessee Constitution that Judges of the Supreme Court be “elected by the qualified voters.” No authority was cited by any party to these proceedings, nor has any been found by this Court, that would dictate a different result under the United Stated Constitution.14 It follows that Appellants’ contention that the Tennessee Plan violates Article I, Section 5 of the Tennessee Constitution requiring that “... elections shall be free and equal” is also without merit, since the constitutional definition of “election” in this state encompasses the yes/no retention vote and it has previously been held that the “free and equal” requirement relates only to the rights of suffrage and not the nature of elections. Compare, Bemis Pentecostal Church v. State, 731 S.W.2d 897, at 901 (Tenn.1987) , cert. denied, 485 U.S. 930, 108 S.Ct. 1102, 99 L.Ed.2d 264 (1988). [4] With respect to Appellants’ argument that the Tennessee Plan violates the separation of powers provision of Article II, Section 1 of the Tennessee Constitution, we hold that it does not. Recognizing that the doctrine of separation of powers “is a fundamental principle of American constitutional government,” Underwood v. State, 529 S.W.2d 45, 47 (Tenn.1975) and that “a judge must be secured against the political caprice of other departments of government,” Summers v. Thompson 764 S.W.2d 182 (Tenn.1988), Drowota concurring opinion at 190, this Court acknowledges that Justice Humphreys in his dissent in Higgins postulates the potential for legislative action that could violate the independence of the judiciary.15 We hold, however, that the Tennessee Plan which provides for a yes/no retention vote based on a majority vote does not cross that threshold. Having found the Tennessee Plan is constitutional, we turn to its interpretation as applied to the factual situations in these consolidated cases. 

*339 III.

THE TENNESSEE PLAN AS APPLIED TO THE AUGUST 1, 1996 ELECTION FOR SUPREME COURT JUSTICE

[5] Given our decision that the Tennessee Plan is constitutional, the central question in these cases is whether the State Coordinator of Elections acted in violation of the statute when he refused to issue nominating petitions to Appellants Hooker and Laska and others similarly situated, based on his belief that Justice White was entitled to be the only candidate on the ballot for her seat on the Supreme Court. We conclude that the statute was violated. The Legislature adopted the Tennessee Plan in 1994 to

... assist the governor in finding and appointing the best qualified persons available for service on the appellate courts of Tennessee, and to assist the electorate of Tennessee to elect the best qualified persons to the courts; to insulate the judges of the courts from political influence and pressure; to improve the administration of justice; to enhance the prestige of and respect for the courts by eliminating the necessity of political activities by appellate justices and judges, and to make the courts “nonpolitical.”

T.C.A. § 17–4–101. These are laudable goals and much has been written about the superiority of a judiciary selected on the basis of merit and elected under “retention elections” over popularly elected judges.16

 The question before this Court is whether or not Justice Penny White was entitled to be on the ballot for a yes/no retention vote on August 1, 1996, in the absence of a favorable judicial evaluation. In analyzing the Tennessee Plan’s statutory scheme, we first note that the Tennessee Supreme Court judges may be up for election either for a full eight-year term pursuant to Article VI, Section 3 of the Tennessee Constitution or, if the judge has been appointed to fill a vacancy on the Court, the judge must be elected to fill the unexpired eight-year term of the judge who vacated the bench and the election must be held at the next regular biennial August election. Article VII, Section 5 of the Tennessee Constitution. The 1994 Tennessee Plan addresses each of these situations separately. With respect to judges seeking election to a full eight-year term, T.C.A. § 17–4–115 provides that any judge seeking to be elected for a full term17 may qualify to run on a yes/no retention ballot. However, § 17–4–115(c) unequivocally states: 

(c) Unless the judicial evaluation commission recommends the retention of a judge, the provisions of this part shall not be applicable. A political party may nominate a candidate and independent candidates may qualify under the general election law for the general election which shall be the regular August election. After a judge is elected under this subsection the provisions of this chapter concerning the evaluation and retention process shall again apply.With respect to judges seeking to fill an unexpired term, T.C.A. § 17–4–114 makes the yes/no retention vote applicable under the Tennessee Plan, and T.C.A. § 17–4–114(c) also unequivocally states:

*340 (c) Unless the judicial evaluation commission recommends the retention of a judge, the provisions of this act shall not be applicable. A political party may nominate a candidate and independent candidates may qualify under the general election law for the general election which shall be the regular August election. After a judge is elected under this subsection, the provisions of this chapter concerning the evaluation and retention process shall again apply.

Thus, both statutes setting up the right to be elected under a yes/no retention vote, T.C.A. § 17–4–115 and § 17–4–114, using identical language, predicate a judge’s right to run on the yes/no ballot upon the recommendation of retention of that judge by the judicial evaluation commission.

The establishment of the judicial evaluation commission is set out in T.C.A. § 17–4–201; this commission is required to be established by July 1, 1995. By the terms of § 17–4–201(e), “[t]he judicial evaluation program, including the public report and the ballot information, shall apply to each appellate court judge who seeks to serve a complete term after September 1, 1994.”18

 The impact of T.C.A. § 17–4–201(e) on the election of Justice White is at the heart of the controversy before this Court. The state defendants argue that this language means that no judicial evaluations were required for any judge until the full term elections in 1998; the appellants argue that this provision does not act to exempt judges seeking to fill unexpired terms pursuant to T.C.A. § 17–4–114 from the evaluation if they wish to run on a yes/no retention ballot prior to the 1998 elections.

At oral argument on July 5th, counsel for the state defendants admitted that they had reviewed the legislative history of the Tennessee Plan and had found no legislative history supportive of the state’s position. There is no dispute that the judicial evaluation commission did not evaluate Justice White, apparently believing that it was not required to perform any judicial evaluations until the 1998 elections. [6] [7] [8] The Tennessee Supreme Court has previously articulated the guidelines for this Court’s role in statutory interpretation. As succinctly stated in Crowe v. Ferguson, 814 S.W.2d 721, 723 (Tenn.1991) :

... the cardinal rule of Tennessee statutory interpretation is to ascertain and give effect to the intent and purpose of the Legislature in relation to the subject matter of the legislation, all rules of construction being but aids to that end.... A statute must be construed so as to ascertain and give effect to the intent and purpose of the legislation, considering the statute as a whole and giving words their common and ordinary meaning. The Court should assume that the Legislature used each word in the statute purposely and that the use of these words conveyed some intent and had a meaning and purpose. [citations omitted]

The intent and purpose of the Tennessee Plan having been explicitly stated to be to enhance the prestige of the Courts by eliminating the necessity for political activities by appellate judges while assisting the electorate with the election of the best qualified persons to the judiciary, the evaluation process is clearly an integral part of the statutory scheme. To a large degree, *341 the evaluation commission takes the place of the political arena to provide the voters of Tennessee with a basis for casting an informed ballot. Considering the Tennessee Plan as a whole and giving the words therein their common and ordinary meaning, the conclusion is inescapable that T.C.A. § 17–4–114(c) means exactly what it says: unless the judicial evaluation commission acts to recommend the retention of a judge running to fill an unexpired term of that judge’s predecessor, the provisions of the Tennessee Plan for a yes/no retention vote do not apply, opening the race to the regular election laws; political parties may nominate candidates and independent candidates may qualify under the general election law. Assuming, as we must, that the Legislature used each word in the statute purposely and that the use of these words conveyed some intent, we cannot ignore the plain meaning of T.C.A. § 17–4–114(c). In the absence of any clear indication to the contrary, this Court is persuaded that the Legislature used each word in the statute purposely and that the use of these words conveyed some intent and had a meaning and purpose. Appellees have argued that the provisions of T.C.A. § 17–4–201(e) make it clear that the judicial evaluation program was intended to apply only to appellate court judges seeking to serve a complete term after September 1, 1994. This Court does not read the statute to convey that meaning, based on its plain language. Nowhere in the statutory scheme of the Tennessee Plan does the Legislature state that the judicial evaluation procedures shall not apply to the August 1, 1996 election. Indeed, the legislation specifically states that the Supreme Court is required to implement the judicial evaluation program after September 1, 1994, but before July 1, 1995, or the entire Tennessee Plan will be void. Accordingly, there was sufficient time allowed by the Legislature for evaluation and publication of a report and retention recommendation 180 days before May 16, 1996, assuming only that the judge to be elected had been appointed sufficiently in advance of the election. T.C.A. § 17–4–201(c) makes the evaluation program mandatory for each judge seeking a complete term after September 1, 1994; there is no similar provision with respect to judges seeking to fill an unexpired term. This makes sense in the overall statutory scheme of the Tennessee Plan, because the timing of a judicial appointment to an unexpired term might not allow sufficient time to conduct the full evaluation process, in which event § 17–4–114(c) dictates that the yes/no retention vote is not applicable.19

 Given the stated purpose of the Legislature to “assist the electorate of Tennessee to elect the best qualified persons,” as set forth in T.C.A. § 17–4–101(a), and the stated purpose of the judicial evaluation program “... to aid the public in evaluating the performance” of appellate judges, this Court does not find it inconsistent with the intent of the Legislature in enacting the Tennessee Plan to require that a judge be evaluated and recommended for retention in order to run in a “yes/no retention election” in 1996. The Plan specifically states at T.C.A. § 17–4–114 that the provisions of the Plan shall not be applicable “unless the judicial evaluation commission recommends the retention of a judge” and further provides that when the Plan is not applicable, “[a] political party may nominate a candidate and independent candidates may qualify under the general election *342 law for the general election which shall be the regular August election.” Plainly stated, where the Plan does not function to have a well-informed commission advise the public about how they should vote, the concept of a retention election is thrown out. We find that this is consistent with the overall intent and scheme of the Tennessee Plan. Having found that the provisions of the Tennessee Plan do not apply to the Supreme Court election of August 1, 1996, this Court was faced with the fact that no one had properly qualified under the general election laws to run for the unexpired term

of Justice O’Brien, filled in the interim by Justice White. As noted previously, the deadline for so qualifying was May 16, 1996 pursuant to T.C.A. § 2–5–101(a)(2). 

IV.

EQUITABLE RELIEF FROM THE QUALIFYING DEADLINE

[9] [10] This Court has broad equitable powers, and there is ample precedent for extending the qualifying deadline. As noted by the Supreme Court in Crowe v. Ferguson, 814 S.W.2d 721, at 725, “... if a candidate misses a qualifying deadline due to her reasonable and justifiable reliance upon an official opinion, relief from the mandatory deadline is appropriate, provided filing takes place with all reasonable dispatch after it is discovered that the opinion is incorrect.” The facts in the Crowe case are similar to the case at bar: a person interested in running for office was misled by election officials as to whether she was eligible to file a qualifying petition. Relying on the precedent of Koella v. State ex rel. Moffett, 218 Tenn. 629, 405 S.W.2d 184 (Tenn.1966), the Supreme Court ruled that the candidate in question, who filed after the qualifying deadline, was properly placed on the ballot. [11] Accordingly, we ruled as a matter of equity that Justice White’s name should be placed on the ballot as if she had properly qualified. Based on briefs filed subsequent to our initial ruling granting this equitable relief to Justice White, this Court also ruled that equitable relief should be granted to all candidates similarly misled, and therefore extended the qualifying deadline for the August 1, 1996 election for the seat on the Supreme Court at issue until 4:00 p.m., July 12, 1996. As previously noted in our Order of July 9, in accordance with T.C.A. § 17–1–301, candidates for the unexpired term of Justice O’Brien, who resided in the Eastern Grand Division of Tennessee, must be residents of the Eastern Grand Division. 

V.

THE RESIDENCY REQUIREMENT TO FILL A VACANCY FOR AN UNEXPIRED TERM OF A SUPREME COURT JUDGE WHO RESIGNS

[12] The Tennessee Constitution provides limited constitutional mandates with respect to residency requirements of Supreme Court judges in this State. Article VI, Section 2 provides in pertinent part:

The Supreme Court shall consist of five Judges, of whom not more than two shall reside in any one of the grand divisions of the State.

Article VI, Section 3, provides as follows:

The Judges of the Supreme Court shall be elected by the qualified voters of the State. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Every Judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the State *343 for five years. His term of service shall be eight years.

The Tennessee legislature has enacted laws declaring that there are three grand divisions of the State: the Eastern, Middle, and Western, and has specified the counties of which each grand division is comprised. T.C.A. §§ 4–1–201—4–1–204. In response to the mandates of Article VI of the Tennessee Constitution, the legislature enacted T.C.A. § 16–3–101 regarding the composition of the Supreme Court:

Composition—Election of judges—Qualifications—Concurrence necessary for decisions.—(a) The supreme court shall consist of five (5) judges, one (1) of whom shall reside in each grand division, and not more than two (2) in the same grand division.

(b) Judges of the supreme court shall be elected as follows: one (1) of the supreme court judges shall be elected from each of the three (3) grand divisions and two (2) of the supreme court judges shall be elected from the state at large. Each candidate shall reside in the grand division for which the candidate is elected and the two candidates elected for the state at large shall not reside in the same grand division.

(c) Each judge shall be thirty-five (35) years of age and shall, before election, have been a resident of the state for five (5) years.

(d) A judge’s term of office shall be eight (8) years.

(e) The concurrence of three (3) of the judges is necessary to a decision in every case.

Both Article VI, Section 3 of the Constitution and the statutory scheme enacted under its mandate make it clear that a “term of office” is eight years for judges on the Supreme Court of this state. The sitting members of the Supreme Court and the positions they held when these cases were presented were as follows: Justice Lyle Reid, Western Division; Justice A.A. Birch, Jr., Middle Division; Justice E. Riley Anderson, Eastern Division; Justice Frank F. Drowota, III, State at Large (residing in the Middle Division); and Justice Penny J. White, State at Large (residing in the Eastern Division). The position on the bench at issue in these lawsuits, being the seat held by Justice White, is an “at large” position. In August 1990, Justice Charles O’Brien was elected to a full eight-year term as an “at large” judge residing in the Eastern Grand Division. He resigned in October, 1994. Pursuant to the selection procedure of the Tennessee Plan, Justice Penny White, also a resident of the Eastern Grand Division, was appointed December 17, 1994, to fill a portion of Justice O’Brien’s unexpired term, to wit, until August 31, 1996. T.C.A. §§ 17–4–109; 17–4–112. The last sentence of Article VII, Section 5 of the Tennessee Constitution requires that the remaining two years of the unexpired portion of Justice O’Brien’s eight-year term “be filled at the next biennial election recurring more than thirty days after the vacancy occurs.” The next biennial election after Justice O’Brien’s resignation creating the vacancy in his unexpired eight-year term was the election held on August 1, 1996. Our ruling that the vacancy created by Justice O’Brien’s resignation must be filled from the Eastern Grand Division is based on T.C.A. § 17–1–301, which reads in pertinent part:

Vacancies in office.—(a) Whenever a vacancy, either by death, resignation, or removal, shall occur in the office of a judge of the supreme court ... the vacancy in such office shall be filled by the qualified voters of the whole state for judges of the supreme court ... at the next biennial election in August, occurring *344 more than thirty (30) days after such vacancy, and in the meantime, the governor shall appoint a person learned in the law and constitutionally qualified to discharge the duties of such office until such election can be had.

(b) If a vacancy shall occur in the office of a judge of the supreme court ... it shall be filled from the grand division of the state in which the vacancy occurs.

It is noteworthy that this requirement is echoed in T.C.A. § 8–48–109, which provides:

Judicial vacancies filled from same grand division.—Any vacancy in the office of supreme court or appeals court judge shall be filled by a person residing in the grand division of the state in which the vacancy occurs.

Appellant Laska relied on an opinion of the Attorney General (AG No. 80–153, June 20, 1980) in asserting that he was qualified as a resident of the Western Grand Division of Tennessee to run for the office vacated by Justice O’Brien and filled in the interim by Justice White. This opinion held that a vacancy created by the death of Justice Joe Henry, an “at large” justice residing in the Middle Grand Division, could be filled from either the Middle Grand Division or the Western Grand Division where only one member of the court resided. After noting the relevance of T.C.A. § 17–1–301,20 the opinion ignored the limitation in that statute to the division in which the vacancy occurred. The Attorney General’s analysis pointed out in detail that filling the vacancy would not violate Article VI, Section 2 of the state constitution but offered no reason for failing to apply the residency limitation adopted by the Legislature in T.C.A. § 17–1–301(b). 

Without violating the constitutional residency requirement, the Legislature could easily have enacted a provision that a vacancy on the Supreme Court bench could be filled from either one of the two grand divisions of the state having only one current member, but it did not do so. Instead, it expressly provided that the vacancy be filled “from the grand division of the state in which the vacancy occurs.” That limitation is not in conflict with the constitutional residency requirement and is clearly within the power of the Legislature in implementing the judicial article of the constitution. See State ex rel. Cole v. City of Hendersonville, 223 Tenn. 365, 445 S.W.2d 652, at 656 (1969) . It is relevant to note that, in order to comply with the constitutional residency requirement, a vacancy created by the resignation of a justice holding any of the three grand division seats must be filled by a resident of the same grand division in which the vacancy occurs. There may well be good reason for the two “at large” positions to remain in the same two grand divisions for the remainder of the eight-year term the people elected them to occupy. But good or bad, it is the law, and cannot be ignored by the courts of this state or the Attorney General. [13] Appellant Laska asserts that this special court’s interpretation of T.C.A. § 17–1–301 will result in “freezing” the at large seats on the Supreme Court in Middle and East Tennessee. Our interpretation is that the two statutes limiting residency to the grand division where the vacancy occurs, T.C.A. §§ 8–48–109 and 17–1–301 apply only to biennial elections to fill unexpired terms. A vacancy created by the rejection of an incumbent justice seeking a full eight year term can be filled from one of two grand divisions, subject to the residency requirements of Article VI, Section 2, Tennessee Constitution—the division *345 wherein the rejected judge resides or the grand division where only one judge resides. The result articulated in the 1980 opinion of the Office of the Attorney General is clearly erroneous. The unequivocal mandate of the Legislature expressed in T.C.A. § 17–1–301(b), as well as T.C.A. § 8–48–109, governs the residency requirement for those who would seek to fill the unexpired term resulting from the death, resignation or removal of a Supreme Court Justice, whether the vacating justice holds a grand division position or a state at large position. There are statutorily only three grand divisions in this state; there is no “at large” grand division, and a judge vacating his or her office is necessarily a resident of one of the three grand divisions of the state. Thus, a vacancy in one of the “at large” positions for an unexpired term must be filled by a resident of the grand division in which the vacancy occurs, which is that in which the “at large” judge resides. 

VI.

CONSIDERATION OF POST JUDGMENT FACTS

[14] We take judicial notice that following the issuance of our orders in these cases something approaching legal chaos ensued. Appellant Hooker sued this Court in the United States District Court for the Middle District of Tennessee. Justice White joined other appellate judges in seeking and obtaining a ruling from Judge Bernice Donald, United States Judge for the Western District of Tennessee, that required that the judges be placed on the ballot for retention election. The retention election was held on August 1, 1996, and Justice White was voted out of office. On September 9, 1996, the Attorney General’s Office issued its Opinion No. 96–117 holding that the vacancy in the unexpired term of Justice O’Brien could be filled by a resident of either the Eastern or Western Grand Division of the state. In that Opinion, the Attorney General distinguished the post-election situation from the issue which this Special Supreme Court dealt with by asserting, ipsi dixit, that the vacancy on the Supreme Court bench was not created by Justice O’Brien’s resignation, but by Justice White’s failure to receive a majority of votes for retention in the August 1, 1996 election. Rule 14, Tennessee Rules of Appellate Procedure, grants power to the appellate courts to consider post-judgment facts “capable of ready demonstration, affecting the positions of the parties or the subject matter of the action such as ... other judgments or proceedings....” An appellate court may act on its own motion. We believe that the Attorney General Opinion No. 96–117 affects the subject matter of this action and that its validity should be considered by this Court. As noted previously, the Tennessee Constitutional mandate for filling vacancies for unexpired terms on the Supreme Court is the last sentence of Article VII, Section 5, of the Constitution of Tennessee which provides as follows:

No special election shall be held to fill a vacancy in the office of Judge or District Attorney, but at the

time herein fixed for the biennial election of civil officers; and such vacancy shall be filled at the next Biennial [sic] election recurring more than thirty days after the vacancy occurs.

This mandate that Supreme Court vacancies be filled at the biennial election recurring more than thirty days after the vacancy occurs, requires a two-step process to fill a vacancy: (1) the vacancy is first filled until the biennial election; (2) a judge is elected at the biennial election to fulfill the *346 unexpired term. The Legislature implemented Article VII, Section 5, by enacting T.C.A. § 17–1–301, providing, in part, that the Governor appoint a qualified person, “until such election can be held.” That appointment expires on August 31 of the biennial election year and the vacancy is filled by the biennial election for the period from September 1 of the biennial election year to the end of the full eight-year term of the justice who has created the vacancy. Compare, State ex rel. Higgins v. Dunn, supra, at 491.  The vacancy that was on the ballot to be filled in the August 1, 1996 biennial election was the unexpired term of Justice O’Brien. The premise of the Attorney General’s Opinion that the vacancy to be filled now is that of Justice White is that a new vacancy was created by the rejection of a justice who had no unexpired term to be filled. That position ignores Article VII, Section 5, of the Tennessee Constitution and is facially untenable. Nothing in the Tennessee Plan indicates that it was intended to override T.C.A. § 17–1–301(b). Therefore, we hold that Attorney General Opinion No. 96–117 is erroneous; the requirements of T.C.A. § 17–1–301(b) and T.C.A. § 8–48–109 must be followed; and the “at large” vacancy created by the resignation of Justice O’Brien must be filled by a resident of the Eastern Grand Division, the grand division in which the vacancy originally occurred. All motions and petitions filed since July 5, 1996, not heretofore or herein ruled upon, have been considered by the Court, found to be without merit or not within the scope of this special courts commission, and are denied. Costs are adjudged as follows: John King and each intervenor shall pay the costs resulting from their respective filings. The remaining costs shall be assessed one-fourth to Appellant Hooker, one-fourth to Appellant Laska and one-half to the state defendants.

Footnotes1 Justice White was appointed December 17, 1994, by then Governor Ned McWherter to fill the unexpired term of Justice O’Brien,

an “at large” Supreme Court judge who resided in the Eastern Grand Division of Tennessee.

2 Federal jurisdiction was invoked pursuant to 42 U.S.C. §§ 1983 and 1971(b), as well as the First and Fourteenth Amendments of the United States Constitution.

3 The action was dismissed by Judge Higgins on the basis of the abstention doctrine, which requires that federal courts give deference to state courts in matters of state law.

4 The basis for this ruling was two-fold: (1) Mr. Hooker was, at the time he sought to qualify as a candidate, a resident of the Middle Grand Division and therefore under T.C.A. § 16–3–101(a) could not qualify, because that statute prohibits more than two Justices from any one grand division of the state, and there are already in office two Justices who are residents of the Middle Grand Division, Justice A.A. Birch, Jr. and Justice Frank Drowota; and (2) Mr. Hooker’s law license had been suspended because of his failure to meet continuing legal education requirements, resulting in his failure to meet the requirements of T.C.A. §§ 2–5–106 and 17–1–106 that a Supreme Court Justice be an attorney licensed to practice in Tennessee.

5 Chancellor Kilcrease held that the “... judicial evaluation program applies only to judges who are candidates for full eight [year] terms beginning September 1, 1998. Therefore, the judicial evaluation program does not apply to the candidacy of Justice White, who is a candidate for the remainder of an unexpired term.” The Chancellor also found that Mr. Laska’s argument that the Tennessee Plan, T.C.A. § 17–4–101, et seq. , unconstitutionally deprives the public of their right to a “free and equal election” pursuant to Article I, Section 5 of the Tennessee Constitution was “without merit.” Given his dismissal of the case on other grounds, the Chancellor found it unnecessary to determine the issue of Mr. Laska’s legal residence or his failure to timely file his nominating petition.

6 Effectively, the Supreme Court Justices recused themselves because these matters involve the manner in which they are elected. Under Article VI, Section 11 of the Tennessee Constitution, and T.C.A. § 17–2–102, sitting judges are required to certify their disqualification to the Governor, “... and he shall forthwith specially commission the requisite number” to hear and determine the matters. Governor Sundquist appointed this panel to hear and determine these cases.

7 With the permission of this Court, Attorney John K. King was allowed to file an amicus curiae brief on July 5, the day of the hearing. In that brief, Mr. King contended that the Tennessee Plan violates Article VI, Section 3 of the Tennessee Constitution, which requires that “[t]he Judges of the Supreme Court shall be elected by the qualified voters of the State.”

8 See Section V and VI, infra, regarding residency requirements.

9 Courts do not expressly adjudicate the rights of persons who are not parties to the litigation.

10 Article I, Declaration of rights, provides in pertinent part:Section I. All power inherent in the people—Government under their control. That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.Section 4. No religious or political test.— That no political or religious test, other than an oath to support the Constitution of the United States and of this State, shall ever be required as a qualification to any office or public trust under this State.Section 5. Elections to be free and equal—Right of suffrage. The elections shall be free and equal, and the right of suffrage, as hereinafter declared, shall never be denied to any person entitled thereto, except upon conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by court of competent jurisdiction.

11 Article II, Distribution of Powers, provides at Section 1:Section 1. Division of powers. The powers of the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial.

12 Article VI, Judicial Department, provides at Section 3:Section 3. Supreme court judges— The Judges of the Supreme Court shall be elected by the qualified voters of the State. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Every Judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the State for five years. His term of service shall be eight years.Section 2 of Article VI deals with the composition of the Supreme Court, providing:Section 2. Supreme Court.— The Supreme Court shall consist of five Judges, of whom not more than two shall reside in any one of the grand divisions of the State. The Judges shall designate one of their own number who shall preside as Chief Justice. The

concurrence of three of the Judges shall in every case be necessary to a decision. 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 in may possess such other jurisdiction as is now conferred by law on the present Supreme Court. Said Court shall be held at Knoxville, Nashville and Jackson.

13 Article XI, Miscellaneous Provisions, states at Section 16:Section 16. Bill of rights to remain inviolate.— The declaration of rights hereto prefixed is declared to a part of the Constitution of this State, and shall never be violated on any pretence whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the General powers of government, and shall forever remain inviolate.

14 See, e.g., Selection and Retention of Judges: Is Florida’s Present System Still the Best Compromise?, 49 U. Miami L.Rev. 1 (Fall 1994) for a summary of the adoption of yes/no retention election for judges in other jurisdictions.

15 Justice Humphreys’ rather disturbing suggestion that the Legislature could provide that “a judge must be approved by an affirmative vote of such a percentage as will empty the Bench of presently serving judges,” Higgins at 494, would present a far different case than that presently before this Court.

16 See, e.g., Watson, Judicial Selection: What Fits Texas? Observations on the Missouri Nonpartisan Court Plan, 40 S.W. L.J. 1 (May 1986); Selection and Retention of Judges: Is Florida’s Present System Still the Best Compromise?, 49 U. Miami L.Rev. 1 (Fall 1994).

17 All supreme court terms are concurrent and the next election year for a full term is 1998, pursuant to the Constitution, Article VI, Section 3 and Article VII, Section 5.

18 Supreme Court Rule 27, entitled Judicial Performance and Evaluation Program, adopted June 16, 1995, refers to appellate judges seeking, “election or re-election to a full eight (8) year term”, five times. No mention is made of elections to fill an unexpired term. The implication follows that the Court interprets the act to apply only to elections to fill a full eight (8) year term. We disagree.

19 The possibility that a judge could be seeking a complete term, when that judge had not been appointed sufficiently in advance of the election to allow time for evaluation, is seemingly ignored by the statute.

20 In 1980, this section was codified as T.C.A. § 17–112.

SENATE JOINT RESOLUTION 710By Kelsey

A RESOLUTION proposing amendment of Article VI, Section 3 ofthe Constitution of Tennessee, relative to judges

of the appellate courts.

BE IT RESOLVED BY THE SENATE OF THE ONE HUNDRED SEVENTH GENERAL

ASSEMBLY OF THE STATE OF TENNESSEE, THE HOUSE OF REPRESENTATIVES

CONCURRING, that a majority of all the members of each house concurring, as shown by the

yeas and nays entered on their journals, that it is proposed that the Constitution of Tennessee

be amended:

By deleting Section 3 of Article VI and by substituting instead the following:

SECTION 3. Each judge of the Supreme Court or any intermediate appellate

court shall be initially selected via merit-based gubernatorial appointment from a panel of

qualified candidates submitted by a nominating commission; shall be legislatively

confirmed; and, thereafter, contingent upon a satisfactory job performance evaluation,

shall be subject to retention election by the qualified voters of the state. The Legislature

shall prescribe such rules as may be necessary to implement sections two and three of

this article. Each such judge shall be at least thirty-five years of age and shall have

been a resident of the state for the five-year period immediately preceding appointment.

The term of service shall be eight years.

BE IT FURTHER RESOLVED, that the foregoing amendment be referred to the One

Hundred Eighth General Assembly and that this resolution proposing such amendment be

published in compliance with Article XI, Section 3 of the Constitution of Tennessee.

BE IT FURTHER RESOLVED, that the clerk of the senate deliver copies of this

resolution to the secretary of state.