Since Governor Bill Lee has recently announced the lifting of restrictions on businesses and the removal of authority from county mayors to issue mask mandates, questions are being asked of various agencies that continue to make such rules and regulations over the people.
I was asked by a county commissioner to provide my assessment as to whether or not the courts could require people to wear masks in Tennessee courts as he was debating the issue with a local judge. Upon providing this assessment to the judge, he stated that he was not going to argue the point, but was just following the rules of the Tennessee Supreme Court.
Imagine that. A judge does not want to take the time to determine whether or not the rules being made in the courts are constitutional. Just par for the course these days. In any case, here are my thoughts on the matter.
Article VI, § 1 of the Constitution of the State of Tennessee does vest judicial power in the Supreme Court and other courts. It does not purport to vest power to the Supreme Court over the other courts. In fact, this Section goes on to say that other Inferior courts are to be ordained and established by the Legislature which would signal that the rulemaking authority continues to rest with the Legislature, and rightly so, for these are the people’s representatives and therefore a continuance of the notion of self-governance. God forbid that in America, we assume that a Court could set policy outside of the jurisdiction of the People.
Further, Article VI, § 2 of the Constitution of the State of Tennessee further clarifies the limitation of the Supreme Court’s powers, “The jurisdiction of this court shall be appellate only, under such restrictions and regulations as may from time to time be prescribed by law…” There are two things we can gather from this statement:
- The Supreme Court has no authority to create policy for the whole of the people. Its jurisdiction is limited to that of issuing a ruling regarding a case or controversy between two parties. And further, its powers are only appellate in nature in that the case or controversy must have first come through the lower courts in this state.
- “Restrictions or regulations” of the court are prescribed by law. Since courts are not given powers by our constitution to make law, we can safely assume that these regulations are created by the Legislature.
In terms of the individual’s rights secured by our Constitution:
- Article I, § 6 “That the right of trial by jury shall remain inviolate,”
- Article I, § 7 “That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures;”
- Article I, § 8 “That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land.”
- Article I, § 9 “That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county in which the crime shall have been committed, and shall not be compelled to give evidence against himself.”
- Article I, § 17 “That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the state in such manner and in such courts as the Legislature may by law direct.”
These Sections from Article I of our Constitution are important because they collectively make up our Tennessee Bill of Rights. These rights are constitutionally guaranteed to every citizen of this state. I would argue that mask mandates (those coming from a governmental authority) are a direct violation of our persons and our liberties. A mask is an apparatus that restricts the flow of oxygen to the human body. A mask, used with the intended purpose of preventing disease, is therefore clearly defined as a medical device and not simply an article of clothing. Governmental mandates and regulations over the usage of any such apparatus are unconstitutional. And per that argument, I would say the same about regulations regarding vaccines, regardless of actions taken by our Legislature.
Also, per our Bill of Rights, the suspension of jury trials by the courts is unconstitutional!
And lest we pretend that any emergency gives any branch of government the power to suspend constitutionally secured, God-given rights, Article XI, § 16 addresses this in no uncertain terms:
“The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense 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 the government, and shall forever remain inviolate.”
There are no provisions per the Constitution of the State of Tennessee that gives a Governor, the Legislature, or the Court the power to suspend the jurisdiction of our Constitution or the rights and privileges that it secures to the People.
The People have a constitutionally secured right at all times, to address their branches of government and be heard by the court. This right should not in any way be restricted, including a safely assumed God-given right to breathe air through our noses without burden.
The Supreme Court, therefore, has absolutely no constitutionally prescribed power or authority to issue any such regulations.
So, if the authority is not found in the Constitution, we must now look to state statute or the Tennessee Code Annotated. Since the Constitution does give the General Assembly regulatory authority over the courts in our state, we would now find any such regulatory powers given to the Supreme Court in statute.
T.C.A. §16-3-501 does grant some regulatory authority over inferior courts to the Supreme Court of this state
“…the supreme court is granted and clothed with general supervisory control over all the inferior courts of the state.”
However, T.C.A. §16-3-502 does set forth some parameters as to how that authority shall be exercised. For example per the following subsections:
(1)Designate the administrative director of the courts as the chief administrative officer of the courts of the state;
(3)(B) Maintain a roster of retired judges who are willing and able to undertake special duties from time to time and to designate or assign them appropriate judicial duties;
(5) Establish and implement a policy concerning the prevention of sexual harassment. This policy shall include training workshops and the establishment of a hearing procedure.
The point of stating some of these examples from Part 5 of the code is to demonstrate that the supervisory control granted to the Supreme Court over inferior courts is administrative in nature and should not be construed to imagine that the Supreme Court now also has the ability to make rules for the courts that could be interpreted as public policy, or “how” the public show be able to achieve its constitutionally secured access to the courts, for example, a mask mandate.
And while T.C.A. § 16-3-504 does make reference to a “broad conference of full, plenary and discretionary power” regarding the Supreme Court, it is only regarding the powers laid out in Part 5 and limited by the procedures laid out in T.C.A. §16-3-502.
It is also very important to point out that while T.C.A. §16-3-402 does give the Supreme Court of this state broad power to determine the processes of the court, it is most certainly limited by T.C.A. §16-3-403 which states:
“The rules prescribed by the supreme court pursuant to §16-3-402 shall not abridge, enlarge or modify any substantive right, and shall be consistent with the constitutions of the United States and Tennessee.”
In other words, rules of the courts cannot lessen or abrogate the rights and privileges secured to the People by the Constitution of the State of Tennessee. Rules made to close or suspend jury trials are unconstitutional and therefore, unlawful. And rules that lessen or suspend rights guaranteed in Article I (Bill of Rights) are unconstitutional and therefore, unlawful.
While powers of the Supreme Court to make rules pertaining to inferior courts are not found in our Constitution, they are found in statute. That said, there is an argument to be made here in terms of an unconstitutional delegation of rule-making authority.
Similar to the argument regarding emergency powers in our state where the legislature has delegated lawmaking power to the executive branch during times of emergency for which there is no constitutional provision, the legislature here has again delegated rule-making authority to the court for which there is no constitutional provision. It would be a reasonable argument to make, that T.C.A §16-3-501 is thereby unconstitutional. However, that would have to be determined by the very body (the Supreme Court) to which the power was given, and it would then be incumbent on the court to limit its own authority. And now, you can easily see the dilemma and controversy that has been created by delegating this authority to the Supreme Court in the first place. And the People essentially have no recourse to check this power. That alone should signal a cause for concern.
Does the Tennessee Supreme Court have any constitutional or statutory authority to issue mask mandates in the courts?
Since Governor Bill Lee has recently announced the lifting of restrictions on businesses and the removal of authority from county mayors to issue mask mandates, questions are being asked of various agencies that continue to make such rules and regulations over the people.
I was asked by a county commissioner to provide my assessment as to whether or not the courts could require people to wear masks in Tennessee courts as he was debating the issue with a local judge. Upon providing this assessment to the judge, he stated that he was not going to argue the point, but was just following the rules of the Tennessee Supreme Court.
Imagine that. A judge does not want to take the time to determine whether or not the rules being made in the courts are constitutional. Just par for the course these days. In any case, here are my thoughts on the matter.
Article VI, § 1 of the Constitution of the State of Tennessee does vest judicial power in the Supreme Court and other courts. It does not purport to vest power to the Supreme Court over the other courts. In fact, this Section goes on to say that other Inferior courts are to be ordained and established by the Legislature which would signal that the rulemaking authority continues to rest with the Legislature, and rightly so, for these are the people’s representatives and therefore a continuance of the notion of self-governance. God forbid that in America, we assume that a Court could set policy outside of the jurisdiction of the People.
Further, Article VI, § 2 of the Constitution of the State of Tennessee further clarifies the limitation of the Supreme Court’s powers, “The jurisdiction of this court shall be appellate only, under such restrictions and regulations as may from time to time be prescribed by law…” There are two things we can gather from this statement:
In terms of the individual’s rights secured by our Constitution:
These Sections from Article I of our Constitution are important because they collectively make up our Tennessee Bill of Rights. These rights are constitutionally guaranteed to every citizen of this state. I would argue that mask mandates (those coming from a governmental authority) are a direct violation of our persons and our liberties. A mask is an apparatus that restricts the flow of oxygen to the human body. A mask, used with the intended purpose of preventing disease, is therefore clearly defined as a medical device and not simply an article of clothing. Governmental mandates and regulations over the usage of any such apparatus are unconstitutional. And per that argument, I would say the same about regulations regarding vaccines, regardless of actions taken by our Legislature.
Also, per our Bill of Rights, the suspension of jury trials by the courts is unconstitutional!
And lest we pretend that any emergency gives any branch of government the power to suspend constitutionally secured, God-given rights, Article XI, § 16 addresses this in no uncertain terms:
There are no provisions per the Constitution of the State of Tennessee that gives a Governor, the Legislature, or the Court the power to suspend the jurisdiction of our Constitution or the rights and privileges that it secures to the People.
The People have a constitutionally secured right at all times, to address their branches of government and be heard by the court. This right should not in any way be restricted, including a safely assumed God-given right to breathe air through our noses without burden.
The Supreme Court, therefore, has absolutely no constitutionally prescribed power or authority to issue any such regulations.
So, if the authority is not found in the Constitution, we must now look to state statute or the Tennessee Code Annotated. Since the Constitution does give the General Assembly regulatory authority over the courts in our state, we would now find any such regulatory powers given to the Supreme Court in statute.
T.C.A. §16-3-501 does grant some regulatory authority over inferior courts to the Supreme Court of this state
However, T.C.A. §16-3-502 does set forth some parameters as to how that authority shall be exercised. For example per the following subsections:
(1)Designate the administrative director of the courts as the chief administrative officer of the courts of the state;
(3)(B) Maintain a roster of retired judges who are willing and able to undertake special duties from time to time and to designate or assign them appropriate judicial duties;
(5) Establish and implement a policy concerning the prevention of sexual harassment. This policy shall include training workshops and the establishment of a hearing procedure.
The point of stating some of these examples from Part 5 of the code is to demonstrate that the supervisory control granted to the Supreme Court over inferior courts is administrative in nature and should not be construed to imagine that the Supreme Court now also has the ability to make rules for the courts that could be interpreted as public policy, or “how” the public show be able to achieve its constitutionally secured access to the courts, for example, a mask mandate.
And while T.C.A. § 16-3-504 does make reference to a “broad conference of full, plenary and discretionary power” regarding the Supreme Court, it is only regarding the powers laid out in Part 5 and limited by the procedures laid out in T.C.A. §16-3-502.
It is also very important to point out that while T.C.A. §16-3-402 does give the Supreme Court of this state broad power to determine the processes of the court, it is most certainly limited by T.C.A. §16-3-403 which states:
In other words, rules of the courts cannot lessen or abrogate the rights and privileges secured to the People by the Constitution of the State of Tennessee. Rules made to close or suspend jury trials are unconstitutional and therefore, unlawful. And rules that lessen or suspend rights guaranteed in Article I (Bill of Rights) are unconstitutional and therefore, unlawful.
While powers of the Supreme Court to make rules pertaining to inferior courts are not found in our Constitution, they are found in statute. That said, there is an argument to be made here in terms of an unconstitutional delegation of rule-making authority.
Similar to the argument regarding emergency powers in our state where the legislature has delegated lawmaking power to the executive branch during times of emergency for which there is no constitutional provision, the legislature here has again delegated rule-making authority to the court for which there is no constitutional provision. It would be a reasonable argument to make, that T.C.A §16-3-501 is thereby unconstitutional. However, that would have to be determined by the very body (the Supreme Court) to which the power was given, and it would then be incumbent on the court to limit its own authority. And now, you can easily see the dilemma and controversy that has been created by delegating this authority to the Supreme Court in the first place. And the People essentially have no recourse to check this power. That alone should signal a cause for concern.
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Gary Humble
Gary Humble