How Rules of Procedure Are Made

Occasionally a lawyer or judge fusses at me about the work product of the Advisory Commission to the Supreme Court on Rules of Practice and Procedure. I tell these fussbudgets that I am merely Reporter to the Commission and am not allowed to vote. Then I explain the procedure, which may be of interest to you readers.

We meet four times annually by video at five locations. Chairman Hugh Moore does a superb job of letting all of the 21 Commissioners have their say. Judicial advisors and random guests are invited to join in.

During the September Term of the Supreme Court at Knoxville, secretary Karen and I meet with the justices to explain changes. The Court circulates amendments for comment by the bench and bar.

Early the following year the Supreme Court sends the orders for each set of rules to the General Assembly for approval by resolutions. I appear before the House and Senate Judiciary Committees to summarize amendments and answer questions.

Contrary to the federal system, Tennessee requires an up or down vote. The General Assembly cannot draft rules of procedure. But an informal arrangement allows the Supreme Court to retroactively amend an order if a particular proposal runs into trouble.

Rule amendments these days take effect on July 1. Tenn Code Ann.  §16-3-406 states that "all laws in conflict therewith shall be of no further force or effect."

Does the Tennessee Supreme Court have inherent power to make rules without approval of the General Assembly?

This lawyer thinks so. See State v. Morgan, 541 S.W.2d 385 (Tenn. 1976), and State v. Mallard, 40 S.W.3d 473 (Tenn. 2001). But for now the Court uses the Enabling Act, Tenn Code Ann.  § §16-3-401 et seq


Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.