TBA Law Blog

Posted by: Berkley Schwarz on May 3, 2021

The House Finance Committee today considered and passed an amendment to HB1130/SB868, legislation that previously would have created a new statewide chancery court. The latest amendment, which replaces all previous versions of the bill, would create a new Court of Special Appeals composed of three judges, one from each grand division of the state. The governor would appoint the judges, and then the voters would elect each judge through a statewide retention election. Initial terms would begin on Oct. 1 of this year.
The Court of Special Appeals would have jurisdiction over appeals of cases challenging the constitutionality of a statute, Executive Order or administrative rule brought against the state, a state department, a state agency or any state official acting in an official capacity. The amendment defines “challenging the constitutionality” as a civil cause of action “alleging a statute, rule or Executive Order is unconstitutional at all times and under all circumstances or has been applied in an unconstitutional manner.” Additionally, the state attorney general could ask the Court of Special Appeals to review a judgement on the issue of constitutionality in a proceeding in which the attorney general has intervened on behalf of the state. Both the Court of Special Appeals and the trial court would have to grant permission for the interlocutory appeal. The original court of jurisdiction would maintain jurisdiction over the remainder of the case and would stay its proceedings until the Court of Special Appeals or Supreme Court ruled on the issue certified. Review by the Court of Special Appeals is de novo.
Finally, the amendment provides that the jurisdiction of the Court of Special Appeals would be appellate only, except that it would have original jurisdiction over any case challenging a statute that apportions or redistricts state legislative or congressional districts.  
The Court of Special Appeals would sit in the supreme court buildings in Knoxville, Nashville and Jackson and act as a three judge panel with the majority prevailing.
HB1130 as amended is scheduled to be on the House floor tomorrow. The Senate Finance Committee is also scheduled to consider the legislation tomorrow, but it is unknown whether Senate leaders have agreed to the House amendment. The legislature is expected to adjourn for the year this week.