Judge Herschel Franks
Tennessee’s longest serving state judge and former Hamilton County Chancellor, Herschel Pickens Franks, died Wednesday.
Judge Franks had retired from the Tennessee Court of Appeals on Dec. 31, 2012. In a letter to then-Governor Bill Haslam, he wrote, “Words cannot adequately express my heartfelt and sincere appreciation for Tennessee’s voters who have elected me as one of their judges in seven elections.”
A native of Hardin County, Tn., Judge Franks served in the U.S. Air Force during the Korean War. After graduating from law school, he practiced law in Chattanooga with the firm of Harris, Moon, Meacham & Franks.
He is a past president of the Chattanooga Bar Association.
In 1970 Judge Franks was appointed Chancellor, and served as Presiding Judge of the Hamilton County Trial Courts. He was Tennessee’s representative to the National Conference of State Trial Judges.
As a Chancellor with probate jurisdiction, he saw the need for a law governing smaller estates, and authored the Act known as “The Small Estates Law.” He also authored the Act establishing the Tennessee Trial Judges Association.
In 1978 he was appointed to the Court of Appeals. While on the Court of Appeals, he 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 the recipient of 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.
The seventh generation Tennessean was educated in the public schools of Savannah. He was a graduate of the University of Tennessee College of Law, and the National Judicial College.
A student of history, Judge Franks at one time lived in the historic Brown's Tavern in Lookout Valley. He later lived on Signal Mountain.
Judge Franks is survived by his wife of 30 years, Judy Wood Franks; his daughter Ramona Hagmaier and her husband Jason; granddaughter, Megan Hagmaier; step-daughters Mary Beth Black and Anne Black and her husband Martin Beeler; and their children Nora, Genevieve and Nico.
He will be buried at the Chattanooga National Cemetery. A celebration of life and memorial will be arranged at a later date. In lieu of flowers, contributions may be made to the Pilgrim Congregational Church or the Chattanooga Food Bank.
Arrangements are by the North Chapel of Chattanooga Funeral Home, Crematory and Florist, 5401 Highway 153, Hixson, TN 37343. Please share your thoughts and memories at www.chattanooganorthchapel.com
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Attorney Jerry Summers recently wrote about "The Courageous Career of Judge Herschel Pickens Franks:
Hardin County, Tennessee, is the birthplace of the longest serving state judge prior to his retirement on December 31, 2012, as the presiding judge of the Tennessee Court of Appeals, Herschel Pickens Franks.
Born in Savannah, Tennessee, Judge Franks received an undergraduate degree from the University of Tennessee-Martin and the University of Maryland. After serving in the Air Force from 1950-1954 he received his law degree from the University of Tennessee at Knoxville in 1957. He migrated to Chattanooga in 1957 and practiced insurance defense law with the firm of Harris, Moon, Meacham and Franks. Well-liked by his fellow attorneys, he served as president of the Chattanooga Bar Association.
In 1970 he was appointed Chancellor in Hamilton County by Governor Buford Ellington and served in that capacity until 1978 when he was appointed to the Tennessee Court of Appeals by Governor Ray Blanton where he sat until 2012.
The Court of Appeals is the intermediate appellate court, which handles all civil appeals before they can be appealed to the Tennessee Supreme Court.
Many lawyers feel that Judge Franks should have been on the Tennessee Supreme Court but some in fighting in the Tennessee Democratic Party as well as some courageous but controversial decisions in high profile cases created opposition that may have hurt his chances to be on the high court. Judge Franks has always had the intestinal fortitude to make the tough decision if he thought he was right.
The landmark case of Paty v. McDaniel in the United States Supreme Court is only one of the areas of the law where Judge Franks’ rulings overturned existing standards. He declared the Tennessee Constitution's provision barring ministers from serving as a legislator in the Tennessee General Assembly violated their right to due process of law under the United States Constitution.
McDaniel, a popular African-American preacher, filed a petition to run as a delegate to the 1977 Tennessee Constitutional Convention. Attorney Selma Cash Paty, another candidate, filed suit to keep McDaniel off the ballot and Judge Franks, in a very unpopular ruling, declared that the constitutional ban on ministers serving in elected positions was invalid. Said case was appealed to the Tennessee Supreme Court which reversed the case, but that was overturned by the United States Supreme Court in a 9-0 opinion. Said holding had other significant consequences as it launched Revered McDaniel’s political career which included election to the governing board of Hamilton County government and also helped lead to a nine member, district-based County Commission to provide equal representation for all races. The number of ministers running for and being elected to public office has increased substantially since this decision in 1978.
Judge Franks has also authored a controversial decision in the area of comatose patients on life support machines dealing with the responsibilities of family members to authorize medical care provided to unplug the patient from life support machines. In the face of opposition from the Tennessee Medical Society, he laid down a ruling which became instrumental in creating a national movement for living wills and right-to-die laws. Said standards are commonly used in today’s society but were a novelty at the time of Judge Franks’ ruling in the Tennessee courts.
He was not hesitant in ruling against a municipal judge who jailed an indigent defendant for contempt when she could not pay the fine or court costs she owed to the City of Chattanooga on the grounds that the defendant was illegally held and detained.
While Chancellor, he also handled a case involving the assassin of Dr. Marin Luther King, James Earl Ray, when he filed a pro se petition against two of his habeas corpus lawyers who he claimed refused to turn over his file after they were fired. The case was eventually settled between the parties by the return of the file. Ironically, when Ray’s court-appointed lawyer turned the file over to the defendant at the state penitentiary in Nashville, Ray remarked that “it was the only time he had won anything in a court of law.”
He also wrote the opinion in the case involving late Democratic gubernatorial candidate John Jay Hooker, whose bright political star had dimmed over the years. Hooker was part of the special prosecution team headed by Jack Norman of Nashville that prosecuted Judge Raulston Schoolfield of Hamilton County in his impeachment proceedings in 1958. Hooker became somewhat of a political gadfly in his later years and filed suit against Governor Bill Haslam in 2012 attacking the constitutionality of the Tennessee Retention Election Statute which governs how intermediate appellate (Tennessee Court of Appeals and Tennessee Court of Criminal Appeals) judges are elected.
In spite of the fact that two retired judges were appointed to hear the case, Judge Franks did not ask for a substitute judge and wrote the opinion that decided the case. His trial and appellate court decisions are full of courageous rulings where it is obvious that Judge Franks did not test the political winds prior to making a decision in cases that might have furthered his judicial career.
A lifelong Democrat, Judge Franks probably incurred more opposition within his own party than from Republicans. An untimely divorce, plus some professional jealousy, both contributed to his non-selection to be on the Tennessee Supreme Court. It was stated, “It’s become axiomatic that had he been a Republican, he would have been appointed to the State Supreme Court years ago,” according to one writer.
However, his adherence to his personal political philosophy and willingness to decide cases based solely on the law and facts demonstrates a type of judicial courage that ranks him high in the historical standings of judges who have served the State of Tennessee in a judicial capacity.
In 2019 biographical publisher Marquis presented Judge Franks with the Albert Nelson Marquis Lifetime Achievement Award. In 2009 Judge Franks received the Tennessee Bar Association highest service award to the judiciary - the Francis F. Drowota III Award.