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Can the General Assembly Overrule Supreme Court Rules?
Let’s start with the 1965 rule making statutes codified at Tenn. Code Ann. §§16-3-402 through 407. They were enacted in anticipation of the Tennessee Rules of Civil Procedure, which were then being drafted and became effective Jan. 1, 1971. Section 406 states: “After the [Supreme Court] rules have become effective, all laws in conflict with the rules shall be of no further force or effect.” It is noteworthy that no Code section provides for nullification of a Supreme Court rule by subsequent legislation on the same subject.
Then we need to reread State v. Mallard, 40 S.W.3d 473 (Tenn. 2001), which I analyzed in my Dec. 2001 column. Justice Barker wrote for a unanimous court about a drug paraphernalia statute that conflicted with T.R. Evid. 404(b) governing admissibility of other crimes evidence. The court construed the rule and statute together, with the result that prior drug convictions were held inadmissible. Most important for our inquiry is the court’s position that procedure and evidence are within the province of the judiciary, not the legislature. The judiciary can consent to procedural and evidentiary legislation, but otherwise the doctrine mandating separation of powers is violated.
A sticky issue is posed by two acts from the 2011 legislative session. Can the General Assembly overrule Supreme Court opinions that construe Rules of Civil Procedure?
Public Chapter 498 enacted new Tenn. Code Ann. §20-16-101 on burden of proof allocation with summary judgment motions under T.R.Civ.P. 56. It applies to all “actions filed” on or after July 1, 2011. Legislators were apparently unhappy with the Supreme Court’s opinion in Hannan v. Alltel Publishing Company, 270 S.W.3d 1 (Tenn. 2008), where the court rejected the “put up or shut up” test in the federal Celotex trilogy. In a “whereas” clause the lawmakers expressly stated that their purpose was to “overrule” Hannan. Can they do that? I don’t know, but I reckon it will take a Tennessee Supreme Court opinion to resolve the issue.
The other act, Public Chapter 461, concerns summary judgment burdens of proof in employment discrimination and retaliatory discharge lawsuits. It purports to supersede Gossett v. Tractor Supply Company Inc., 330 S.W.3d 777 (Tenn. 2010), which rejected the federal position in McDonnell Douglas. The new law applies to “all causes of action accruing” on or after June 10, 2011. Again, I’m anxious to see what our Supreme Court will do with this dilemma.
- The late and great Justice Joe Henry mistakenly, in my opinion, stated in a 1980 dictum that Tennessee Rules of Civil Procedure are effective “until such time as they are superseded by legislative enactment… .” See Tennessee Department of Human Services v. Vaughn, 595 S.W.2d 62 (Tenn.), a fractured 2-1-2 decision. See also Lady v. Kregger, 747 S.W.2d 242 (Tenn. App. 1987), citing Vaughn.
- On July 21 the Tennessee Supreme Court rejected U.S. Supreme Court holdings on motions to dismiss for failure to state a claim. See Webb v. Nashville Area Habitat for Humanity Inc., 346 S.W.3d 422 (2011).
DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.