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Editorial


Front Page - Friday, March 27, 2020

Judiciary mourns loss of Judge Herschel Franks




Former Tennessee Court of Appeals Judge Herschel Pickens Franks, whose 42 years on the bench was one of the longest judicial tenures in state history, died March 19 at the age of 89.

Franks was first appointed to the 11th Judicial District Chancery Court in 1970. In 1978, he was appointed to the Court of Appeals – Eastern Section.

His colleagues later named him chief judge, a position he held until he retired at the age of 83 in December 2012.

“Judge Franks was not only a great chief judge for the Court of Appeals, he served as a mentor for every new judge that came on the court while he served,” Judge D. Michael Swiney, current chief judge of the Tennessee Court of Appeals, says.

“What the court is today is a direct result of Judge Frank’s guidance and his example from which we all benefited and learned. He will be missed by those who had the honor of serving on the court with him, but his contributions to Tennessee and this court remain.”

Swiney served on the Court of Appeals with Franks for more than a decade. Nine of the 12 current members of the Court of Appeals served with Franks, including his eastern section colleagues Swiney, Judge John McClarty and Judge Charles Susano.

While on the Court of Appeals, Franks also served on numerous cases as a special justice on the Tennessee Supreme Court and as a judge on the Court of Criminal Appeals.

“Judge Franks was a great example of a fine judge and an outstanding person. He was a true public servant,” Tennessee Supreme Court Chief Justice Jeff Bivins says. “Just this past holiday season, he called to offer words of encouragement. His commitment to the rule of law and his compassion and care for the citizens of this state will be sorely missed.”

Franks was born Dec. 28, 1930, in Hardin County, where his family had settled in the 19th century. His great-grandfather served in the Union Army during the Civil War, and Franks grew up hearing family stories about the Battle of Shiloh, which had taken place not far from his home.

Franks was raised on a farm outside Savannah during the Depression years, where times were lean.

“We were pretty poor, but so was everyone else around me, so you didn’t think much about it,” he said in a 2012 interview for the Tennessee Bar Foundation’s Legal History Project with Former Tennessee Supreme Court Chief Justice William Barker. “We were self-sustaining. We had cattle, hogs, chickens, big gardens, fruit and bees, so we essentially lived off the land for a few years.”

In 1948, Franks left Hardin County to attend the University of Tennessee at Martin, which was then a junior college. While in Martin, Franks joined the Tennessee National Guard. In 1950, he joined the United States Air Force.

Franks first became interested in the law while serving abroad in England.

“I became interested in courts martial over there and saw how bad they could be without good representation,” he recalled in the 2012 interview. “That encouraged me to study law.”

In the fall of 1955, Franks enrolled at the University of Tennessee College of Law.

Franks received his juris doctor in 1957, and in 1959 joined the law firm of Harris, Moon, Meacham & Franks in Chattanooga. He primarily practiced corporate defense work, but also found time to do pro bono criminal work.

During this period of his career, Franks, who always enjoyed meeting people, became active in a number of community organizations and served as president of the Chattanooga Bar Association.

In 1970, with 11 years in private practice to his name, Franks set his sights on the bench. That year, he was appointed to a vacancy on the 11th Judicial District Chancery Court created by the retirement of Chancellor M.B. Finkelstein.

The desire to become a judge is one that had gradually grown on him during his legal career.

“Working in the bar association we had some judges that I didn’t think – and most of us didn’t think – measured up,” he recalled. “We were always griping about how lawyers were treated in court. I thought, ‘If I get to be a judge, I don’t think I’ll treat the lawyers like that.’

“That was part of my motivation, but I also just had a desire to change courses and become a judge at some point in my practice.”

Over the next few years, Franks found himself at the center of several highly publicized cases. In 1976, a group of Chattanooga lawyers sued the Tennessee Supreme Court for its decision to require them to pay a disciplinary fee to practice. As chancellor in Hamilton County, Judge Franks was assigned the case.

‘I thought, ‘Gosh, this is an unusual situation having the members of the Supreme Court as defendants in your court,’” he later remembered.

The Supreme Court ordered that the case be dismissed, but Franks refused, concluding that the court’s decision went beyond its constitutionally delegated appellate powers. The Supreme Court eventually ruled on the matter, and Franks was enjoined from further considering the case.

“In a way, I thought it was a moral victory,” he said. “I never dismissed the case.”

Another notable case on which Franks ruled ended up before the Supreme Court. McDaniel v. Paty was brought after a Chattanooga minister, Rev. Paul McDaniel, filed to run as a candidate for the state’s 1977 Constitutional Convention.

The Tennessee Constitution prohibited ministers from serving in the General Assembly, and consequently as delegates to state constitutional conventions. Judge Franks ruled that the law violated McDaniel’s rights. The Tennessee Supreme Court overruled him.

The case then went to the Supreme Court of the United States, where the Tennessee constitution’s ban on ministers serving in the General Assembly was unanimously ruled to be unconstitutional.

As Chancellor, Franks also saw the need for a law governing smaller estates and wrote the Small Estates Law. He also wrote the act establishing the Tennessee Trial Judges Association.

When Barker asked him what advice he would offer to young lawyers with the ambition to rise to the top of their field, Franks answered confidently.

“Work hard. Do a good job for your clients. Be respectful of the courts. Stand up to them if they’re wrong. Just be a good representative of your clients,” he said.

Over the course of his career, Franks won numerous awards and accolades, including the Optimist Clubs’ Community Service Award, the Chattanooga Bar Association’s Foundations of Freedom Award and the Tennessee Bar Association’s Justice Frank F. Drowota, III Outstanding Judicial Service Award.

Tributes include:

"A mentor and dear friend, Judge Franks always demonstrated courage and intellect in his professional life – first as a chancellor and later as stellar member of the Court of Appeals. Even after his retirement, he continued to maintain relationships with his colleagues on the bench and bar. Iconic as a jurist, he earned universal respect among his peers. I am heart broken by his death. No one better demonstrated the concept of a strong and independent judiciary. Our state and nation salutes one of its greatest public servants. This good man is now for the ages.”

Retired Supreme Court Justice Gary Wade

"A short time before I graduated from UT Law School in 1979, Judge Franks hired me as his law clerk. I was from East Tennessee, but I had no ties to Chattanooga before beginning my work.

"In 1983, he officiated at my marriage. My wife, Dianne, wanted to have the pastor at the church in which she grew up perform the service, but I wanted to have Judge Franks marry us. We compromised and were married in Dianne’s hometown church in a service in which Judge Franks and the pastor co-officiated.

"I stayed in touch with Judge Franks over the years and shared occasional lunches with him, as did many of his lawyer friends. He enjoyed telling stories from his time on the bench and everyone loved hearing them.

"When Governor Haslam appointed me to the Workers’ Compensation Appeals Board in 2014, I was honored to have Judge Franks conduct the investiture. The following year, my two colleagues on the Appeals Board and I were able to spend time with Judge Franks, and we all benefited from his advice and loved hearing his tales from the bench. Judge Franks was a great mentor, a great jurist, and a great Tennessean."

Judge David F. Hensley,Workers’ Compensation Appeals Board

"Judge Franks was the chief judge when I was named to the Court of Appeals. At that time, I believe he had been on the court for 32 years. He called me when my appointment was announced and graciously spoke at my investiture. We had a very good relationship and I learned a lot from him, even though we only sat together a few times…. He wrote short opinions, got to the point and didn’t waste words, a practice to which I continue to aspire! I appreciated getting a card from him each Christmas and a periodic call checking on me after he retired…. He was a good man and judicial mentor, and leaves a great legacy.”

Judge Richard Dinkins, Court of Appeals