A resolution that would determine if a judge committed an offense worthy of removal for changing the law regarding absentee voting was killed in the House Civil Justice Subcommittee Tuesday through several orchestrated actions, which “only emboldened and protected the judiciary,” according to the resolution sponsor.
The resolution failed on a voice vote carried out by Chairman Andrew Farmer (R-Sevierville) with assistance by Rep. Michael Curcio (R-Dickson) who strategically timed his call for the question.
HR 0023 is a resolution sponsored by Rep. Tim Rudd (R-Murfreesboro), but has a noteworthy 63 co-sponsors, all Republican. The extensive list includes the House Speaker and leadership and even Farmer, but not Curcio. Also of note is that no Democrats signed onto the measure.
The purpose of the resolution, Rudd told the co-sponsors in an email following Tuesday’s meeting which he also provided to The Tennessee Star, is to establish a joint committee with the Senate to determine if Davidson County Chancellor Ellen Hobbs Lyle committed an offense worthy of removal from the bench.
Rudd’s email summarized Lyle’s actions last year, saying, “She changed state policies, changed state law and altered state forms that allowed mass access to absentee voting in last year’s elections based on fear … without legislative approval.”
The Tennessee Supreme Court later overturned Lyle’s actions.
“She also threatened state officials with incarceration if they did not violate existing state law — a law that she did not overturn, but rather changed without legislative approval.”
“This is the first time in state history a judge attempted to subvert our elections so blatantly,” Rudd explained.
When Rudd went to the podium to present his resolution during Tuesday’s subcommittee meeting, he told the chair that he wanted to roll the bill to the subcommittee’s final calendar. The additional time would allow Rudd to work with fellow legislators on some suggested changes to the resolution as well as accommodate a medical situation with his one witness, and because the chair of the full committee was not present.
Farmer went out of session to hear from other witnesses in attendance, whom Rudd called out in the email as Democrats.
The testimony from the two witnesses, which included a glowing review of Lyle’s personal history, along with questions and answers from the subcommittee members went on for the better part of an hour.
Following the testimony, Farmer called the meeting back into session, as Rudd made his way back to the podium.
Before Rudd had an opportunity to rebut any of the testimony or answer any subcommittee members’ questions, Curcio immediately called for the previous question. That motion is one which is a non-debatable.
Based on Rudd’s previously stated intent to roll the bill, Rep. Bruce Griffey (R-Paris) objected to the call for the previous question, which was quickly dispensed with via a voice vote.
Griffey also requested a roll call vote, which Farmer denied, citing House rules that a roll call vote needs to be requested before the vote whether by the sponsor or three committee members.
Farmer said he was stating his understanding and interpretation of the rules, which prompted Griffey to respectfully object to the rulings of the chair.
Attorney, former state senator and President of Family Action Council of Tennessee David Fowler was Rudd’s intended expert witness.
In a video-recorded statement, Fowler reacted to the House Civil Justice Subcommittee’s actions, which he said puts representative self-government at risk.
While not wanting to sound overly dramatic, Fowler warned, “We’re on the cusp of losing any semblance of representative self-government in the State of Tennessee,” if the actions taken by the subcommittee on “a vital issue” are not set aside.
Fowler said that the real issue is not whether the resolution was killed or that testimony from the other side wasn’t heard, both of which happen regularly. He then went on to give about a nine-minute lesson on the real problem with the actions of the subcommittee.
Fowler reiterated Rudd’s point that Lyle made her decision about absentee voting based on a fear of COVID.
As Rudd included in his resolution, one option at Lyle’s disposal would have been to use her judicial authority to overturn state law passed by the legislature, as was done with a lawsuit filed in Memphis.
The legislature changed the law, sent it back to the Memphis judge, who then had no objections to it, Rudd relayed in an interview on The Tennessee Star Report with Michael Patrick Leahy.
Lyle could have also, Fowler explained, applied absentee voting only to the plaintiffs that were in front of her asking for that relief.
But, that’s not what Lyle did, said Fowler.
The nature of judicial power is that judges can only resolve disputes between particular parties, explained Fowler, and the judge can only grant relief to the plaintiffs that she has jurisdiction over.
In other words, “You have to be a plaintiff to get relief,” said Fowler.
Lyle, however, extended the relief to every voter in the state, even though she had no power or jurisdiction to do so, Fowler pointed out.
And, in doing so, Fowler said Lyle did the equivalent of making law, which is then an unrepresentative law.
To substantiate his point, Fowler went on to quote President Abraham Lincoln, himself a lawyer, with regard to the U.S. Supreme Court’s Dred Scott decision.
“I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case upon the parties to a suit.”
“The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”
What the representatives on the subcommittee didn’t understand, said Fowler, is that when a judge goes beyond their jurisdictional authority to make law for the whole people “and legislators are okay with that and are not jealous for their own powers to represent the people and to represent the power the people gave them to make sure that judges don’t make law for them, they have resigned our government into the hands of the judicial branch.”
Fowler said there would be a lot of lawyers and judges who won’t like what he said.
But, again, he invoked Lincoln in quoting his next sentence, “Nor is there in this view any assault upon the court or the judges.”
When judges think they can make law for the whole people, Fowler said, “It is an assault upon the people.”
“The government is of and by and for the people. The judge’s authority is prescribed by the people and the power to make law for the whole people is given to their representatives because this a representative self-government.”
If the leadership and House Republican caucus don’t have this issue re-heard, then there are people who have decided it is okay to resign our government on important issues like ballot elections into the hands of the judicial branch, Fowler concluded.
Rudd told his colleagues that the opponents to his resolution – those being Democrats, lawyers, judges and liberal activists – “implied in committee and in the press that unless a judge has been convicted of criminal acts, only the judiciary and the legal profession are qualified to pass judgement on a fellow member of the judiciary.”
Rudd refers to Article VI of the Tennessee Constitution dealing with the judiciary that says the legislature can remove a judge for cause with a two-thirds vote, provided there is due process.
The Constitution does not define cause, Rudd points out, leaving that up to the legislature to determine.
HR 0023 lets the legislature define cause and provides Lyle with due process.
Through their actions, Rudd said that Farmer and Curcio not only insulted him, but they insulted all of the co-sponsors and the 4.2 million Tennesseans the co-sponsors represent.
In fact, later that day several of the co-sponsors expressed to The Star their unsolicited extreme displeasure with regard to the actions of Farmer and Curcio on HR 0023.
Fowler recommends that Tennesseans contact House Speaker Cameron Sexton to voice support for having HR 0023 reconsidered.
Senator Frank Niceley (R-Strawberry Plains) is the sponsor of like resolution SR 0021 in the Senate, which has yet to be placed on a calendar for the Judiciary Committee.
The video of the House Civil Justice Subcommittee meeting held on Tuesday, March 9, and HR 0023 can be watched here.
– – –