Tennessee Judiciary Mourns Loss of Former Court of Appeals Judge Herschel P. Franks

March 19, 2020

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

Judge 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. He was later elected as Chief Judge by his colleagues and was serving in that position when 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,” said Judge D. Michael Swiney, current Chief Judge of the Tennessee Court of Appeals. “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.”

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

While on the Court of Appeals, Judge 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,” said Tennessee Supreme Court Chief Justice Jeff Bivins. “Just this past holiday season, he called to check in with me and 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.”

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

Judge 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 M. Barker.  “We were self-sustaining. We had cattle, we had hogs, we had chickens, we had big gardens, we had fruit, bees, so we essentially lived off the land for a few years during the Depression.”

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

Judge 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 he enrolled at the University of Tennessee College of Law.

Judge Franks received his juris doctor in 1957, and in 1959 joined the law firm of Harris, Moon, Meacham & Franks in Chattanooga. There he primarily practiced corporate defense work, but also found time to do pro bono criminal work as well. During this period of his career, Judge 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, Judge 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’d 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, Judge Franks would find himself at the center of several highly publicized cases. In 1976, the Tennessee Supreme Court was sued by a group of Chattanooga lawyers 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 Judge Franks refused, concluding that the Court’s decision went beyond its constitutionally delegated appellate powers. The Supreme Court eventually ruled on the matter, and Judge 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 that Judge Franks ruled on ended up before the Supreme Court. McDaniel v. Paty was a case brought after a local 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 Rev. 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, Judge Franks also saw the need for a law governing smaller estates, and authored the Act known as “The Small Estates Law.” He authored the Act establishing the Tennessee Trial Judges Association as well.

When asked by Former Chief Justice Barker what advice he would offer to young lawyers with the ambition to rise to the top of their field, Judge 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, Judge 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.

This story will be updated as more information becomes available. The official obituary will be here - https://www.dignitymemorial.com/obituaries/hixson-tn/herschel-franks-9090645

Remembrances and Condolences

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"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, since the sections were not rotating at the time.  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.  I saw him a few times, usually at conferences that were held in Chattanooga, and always enjoyed hearing his war stories. He was a good man and judicial mentor, and leaves a great legacy. Peace and comfort to his family."

- Judge Richard Dinkins,  Court of Appeals Judge

 

"A mentor and dear friend, Judge Hershel Pickens 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 in 2014, he continued to maintain relationships with his colleagues on the bench and bar. Iconic as a jurist, he earned universal respect among his peers.  In 2004, he delivered the most fitting and articulate eulogy I have ever
witnessed -- to his great friend Judge Houston Gordon.  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
 

"Judge Franks was my mentor, friend, teacher and colleague.  In 1977 I tried my first Workers' Compensation case before him, as he set as a seasoned Judge as Chancellor of Part II, Chancery Court of Hamilton County.  I later appeared before him on a number of different cases as he set as a Judge on the Tennessee of Appeals.  Then in 2009 I had the distinct honor of serving with him as a Judge on the Tennessee  Court of Appeals.  Judge Franks served as a Judicial Official of this State with honor, great knowledge and high respect.  He was looked up to by all the members both past and present of the Tennessee Judiciary.  He served the people of this state well and his legal opinions and rulings resolving the problems and conflicts between litigants who appeared before his court shall long be remembered, relied upon and held in high esteem. He will be greatly missed by all."

- Judge John W. McClarty,  Court of Appeals Judge