William James Harbison
Influential and respected Tennessee Supreme Court justice William J. Harbison was born in Columbia, the son of William Joshua Harbison and Eunice Elizabeth Kinzer Harbison. Harbison (B.A, magna cum laude, Vanderbilt University, 1947; J.D., Vanderbilt University School of Law, 1950) attended The Citadel, served in the U.S. Army (1943-46), and was a member of Phi Beta Kappa. At Vanderbilt's School of Law, he was first in his graduating class, was elected to the Order of the Coif, served as editor-in-chief of the Vanderbilt Law Review, and was awarded the Founders Medal for Scholarship. Harbison began the practice of law with Trabue and Sturdivant in Nashville and soon became a partner in that firm.
In September 1966 Governor Frank G. Clement appointed Harbison as special justice of the Tennessee Supreme Court to serve for the ailing Justice Weldon B. White, a post which he held until Justice White's death in April 1967. Harbison was elected to the Tennessee Supreme Court in 1974, served two terms as the court's chief justice (1980-82, 1987-89), and remained on the bench until retirement in 1990.
The election of Harbison and four other new justices to the five-member Tennessee Supreme Court in 1974 was viewed as an electoral mandate to reform and update Tennessee law and judicial procedure, and their election ushered in an unprecedented period of judicial activism. Harbison quickly emerged as the intellectual and inspirational leader of this “new Court.” Soft-spoken and good-humored, the collegial Harbison brought to the task a remarkable memory and an almost encyclopedic knowledge of the law tempered by his fundamental understanding and respect for the rule of law and the role that the judiciary should play in government and society.
The court wasted little time before beginning its revision of the state's often outdated, arcane rules of substantive and procedural law. The court abolished “the last vestige of the common law disability of coverture in Tennessee” and laid the groundwork for potentially significant changes in the anachronistic, much criticized marital estate of tenancy by the entirety, at least with respect to personal property; embraced the modern doctrine that a prenuptial tort claim by a woman for personal injury is not extinguished by her marriage to the alleged tortfeasor; adopted the modern standard recommended by the Restatement (Second) of Torts requiring an independent contractor to exercise reasonable care for the protection of third parties, who may reasonably be endangered by the contractor's negligence even after the owner's acceptance of the work; held that actions under the federal Civil Rights Act of 1871, 42 U.S.C. section 1983, may be brought in the Tennessee state courts; created an exception to the 1884 judicially created employment-at-will doctrine for bad-faith discharges when the discharged employee has exercised a statutory privilege such as filing a workers' compensation claim against the employer; and held that an insurer has a duty to deal fairly and in good faith with its insureds.
The court's reform of the criminal law in Tennessee included precedent-setting decisions by which it expanded the legal protections accorded juvenile defendants by holding that juveniles charged with offenses constituting a felony are entitled to a jury trial, unless specifically waived, and by prohibiting the adjudication of juveniles by judges who are not licensed attorneys; enunciated for the first time the standard required for determining the scope of the Tennessee Constitution's protection against double jeopardy; abandoned the old M'Naghten test in cases involving the defense of mental incompetency in favor of the standard for determining criminal responsibility recommended by the American Law Institute's Model Penal Code; increased the standard of competence required for criminal defense attorneys; abandoned the so-called Allen deadlocked jury charge in favor of guidelines promulgated by the American Bar Association; declared the state's mandatory death penalty statute unconstitutional under the U.S. Constitution's Eighth and Fourteenth Amendments; broadened the scope of criminal discovery; refined the law of searches and seizures under the Tennessee Constitution; adopted the majority rule allowing multiple homicide convictions when more than one death results from a single automobile accident; and established modernized standards for trial courts to use in determining whether defendants convicted of multiple offenses should be given consecutive sentences.
Of perhaps even more enduring significance, the “new Court” under Harbison's guidance also made extensive use of its supervisory powers over the courts and the legal profession in Tennessee to effect long-needed reforms. The court, for example, established a unified bar, created the Commission on Continuing Legal Education, the Tennessee Board of Professional Responsibility, the Tennessee Lawyers' Fund for Client Protection, and the Interest On Lawyers' Trust Accounts (IOLTA) program; it also adopted the current rules of criminal, appellate, and juvenile procedure. Harbison, the primary drafter of the Tennessee Rules of Civil Procedure (adopted by the court in 1970), chaired the court's Advisory Committee on the Rules of Civil Procedure and was instrumental in the promulgation and implementation of the Tennessee Rules of Evidence. Before Harbison's tenure on the court, Tennessee's courts had functioned without any uniform rules of procedure.
Under Justice Harbison's leadership, the “new Court” became recognized as one of the most significant courts in the state's history. As head of a hardworking court, Harbison himself authored more than four hundred decisions (published and unpublished, including concurring and dissenting opinions), many of which were subsequently cited and relied upon by the appellate courts of other states.
Harbison served as president of the Nashville Bar Association (1970-71), chairman of the Tennessee Code Commission, and cochairman of the commission's study of the state's appellate courts (1990). He represented Tennessee on the Commission for Uniform Legislation. He took a special interest in, and served as president of, the Tennessee Bar Foundation, whose functions include funding legal services to the indigent, providing law student scholarships and loans, and conducting a high school mock trial program, public education projects, and programs to improve the administration of justice. Recognizing the power of knowledge as an agent for improving lives, Harbison devoted much of his time to education. He organized the first bar review course for aspiring young lawyers in Tennessee; served as a lecturer (1950-67) and adjunct professor (1967-93) at Vanderbilt Law School and as an instructor at the Nashville School of Law (1991-93); served as president of the Tennessee Historical Society (1983-85) and as a member of the Metropolitan Government of Nashville and Davidson County Board of Education (1970-74); and taught a Sunday school class for thirty years.
Upon his retirement from the court in 1990, he returned to the practice of law with the Nashville firm of O'Hare, Sherrard and Roe, where his son was a partner. He was married to Mary Elizabeth Coleman Harbison. The Harbisons had two children, William L. and Mary Alice.
Harbison's abilities and reputation as a lawyer and jurist were such that, from time to time, he was recommended to the U.S. Supreme Court and to the U.S. Court of Appeals for the Sixth Circuit. More telling testimonies to his character, however, were to be found among the many tributes that came from friends and colleagues in the aftermath of his untimely death, wherein the terms “modest,” “compassionate,” “generous,” and “fair” are those that most frequently occur.
Martha Craig Daughtrey, “State Court Activism and Other Symptoms of the New Federalism,” Tennessee Law Review 45 (1978): 731-39; Frank F. Drowata III et al., “In Memoriam: William J. Harbison,” Tennessee Law Review 619 (1994): 395, 402; “The Tennessee Supreme Court: Judicial Activists?” Memphis State University Law Review 24 (1994): 179-323; John W. Wade et al., “A Tribute to Justice William J. Harbison,” Vanderbilt Law Review 47 (1994): 943-52