Supreme Court Tennessee Gary Wade

Handling of Ethics Complaint Against TN Chief Justice May Undergo Legislative Scrutiny

A high-ranking Tennessee lawmaker is criticizing the way powerful state judges are policed for ethics violations, and says judicial-oversight reforms passed in 2012 don’t appear to be working.

Sen. Mike Bell, a Republican from Riceville, said this week he may initiate hearings soon — perhaps in the coming weeks — to probe the state Board of Judicial Conduct’s handling of an ethical complaint he lodged last fall against Gary Wade, chief justice of the Tennessee Supreme Court.

Wade, along with two other members of the state’s high court, Cornelia Clark and Sharon G. Lee, is up for “retention” in August.

While retention elections are typically rubber-stamp affairs, there’s a heavyweight political fight brewing this year over whether Wade, Clark and Lee deserve new eight-year terms. All three were appointed by former Gov. Phil Bredesen, a Democrat. Lt. Gov. Ron Ramsey, a Blountville Republican who presides over the GOP supermajority-controlled Tennessee Senate, has indicated he’ll be campaigning to have them rejected by voters.

Bell, who serves as chairman of the Senate Government Operations Committee and has criticized the judiciary in the past, said he made a backchannel request last fall through the Board of Judicial Conduct’s chief disciplinary counsel, Timothy R. Discenza, suggesting that Wade’s behavior be scrutinized for ethical misconduct. Bell said he asked for the investigation after reading public statements from the chief justice in a Knoxville News Sentinel article indicating Wade’s support for incumbent appellate judges seeking new terms.

Bell said he and Discenza agreed it best to keep the source of the complaint “anonymous” so as to avoid tainting the objectivity of the inquiry and any subsequent finding. The Senate Government Operations Committee headed by Bell oversees the Board of Judicial Conduct.

Bell said it struck him at the time that, if accurately reported, Wade’s comments violated Tennessee’s Code of Judicial Conduct, which states that “a judge or judicial candidate shall not…publicly endorse or oppose a candidate for any public office.”

Wading into Judicial Evaluations

When Chief Justice Wade made the comments, Court of Appeals Judge Andy D. Bennett and Court of Criminal Appeals Judges Camille R. McMullen and Jerry L. Smith were undergoing reviews by the Judicial Performance Evaluation Commission and had preliminarily received less-than-satisfactory marks by some members of the panel. Under Tennessee’s system of judicial selection and retention, judges who get a thumbs-down on their final JPEC report are not granted the privilege of appearing without opposition on the ballot.

The News Sentinel reported on Nov. 10, 2013, that Chief Justice Wade “said in an interview that he believes all three judges receiving negative recommendations from the Judicial Performance Evaluation Commission deserve new terms.”

“I believe every judge in the appellate court system is qualified to serve,” Wade said.

The article, written by the News Sentinel’s Nashville bureau chief, Tom Humphrey, also quoted Wade remarking that Judge Bennett “is dependable as can be and as steady as a rock.”

Judge Smith, who in 2012 pleaded guilty to drunken driving following an arrest in Knoxville, later announced he wouldn’t seek another term. At the time of Humphrey’s article, though, Smith was still in the mix and Wade spoke in favor of him, saying the Nashville judge and former deputy state attorney general had “by every indication…dealt with (his DUI) appropriately.”

With respect to Judge McMullen, Wade said, “Her potential has not been realized and I hope the commission will reconsider and let her realize that potential.” He called her “extremely intelligent, extremely conscientious and very well-qualified.” Wade added that McMullen, who is black, “brings diversity to the appellate courts, both in race and gender,” and said he considers it “important to the court system that we have diversity.”

In the weeks following publication of the article, Smith withdrew from the review process and the Judicial Performance Evaluation Commission reversed its preliminary negative recommendations against McMullen and Bennett, thus relieving them of the prospect of having to run in contested elections.

Case Dismissed, Then Dug Up

A letter issued last week to Nashville NewsChannel5′s chief investigative reporter, Phil Williams, from Chris Craft, chairman of the Board of Judicial Conduct, offered the first public explanation for what happened with the complaint against Chief Justice Wade, which was disposed of in December.

Craft stated in the letter to Williams that the “internal complaint” against Chief Justice Wade had been investigated and dismissed “and the matter was closed.” Craft wrote that while “Chief Justice Wade confirmed that the (News Sentinel) accurately reported his comments,” the board’s disciplinary counsel, Discenza, had concluded that Wade’s “comments were aimed at how the judges would appear on the ballot, that is, whether they would be included in the August 2014 retention ballot or whether they would stand in a contested election.”

“Consequently, Disciplinary Counsel determined that the Chief Justice’s comments were not a public endorsement of a candidate for public office intended to influence voters in the eventual election. This would not be a violation of the Rules of Judicial Conduct,” wrote Craft. “As a result, Disciplinary Counsel recommended to the investigative panel that the Board dismiss the internal complaint that it had opened on the matter, because Chief Justice Wade’s comments did not violate the Rules of Judicial Conduct. After careful consideration, the Board investigative panel agreed with the recommendation.”

Typically, dismissed ethical complaints against judges are kept under wraps, but according to Craft, “Chief Justice Wade has provided to the Board a signed waiver of the confidentiality provisions concerning actions of the Board on this matter.”

Included with his letter to Phil Williams, Craft attached a copy of the Board of Judicial Conduct’s “personal/confidential” notice informing Chief Justice Wade that the complaint against him had been dropped.

BJC to Wade: Watch Yourself

The Dec. 18 BJC notice to Chief Justice Wade is signed by Craft and states:

“The investigative panel did conclude that you should be aware that because of the ambiguity which is inherent concerning the definition of ‘Judicial Candidate’ under the Terminology Section of the Code of Judicial Conduct, as applied to the unique circumstances of Appellate Judges in Tennessee, some members of the public might reasonably conclude that once Appellate Judges submit paperwork to the Judicial Performance Evaluation Commission indicating a desire to be elected to retain their judicial positions, they become candidates for judicial office.”

Craft cautioned Wade, “Public remarks such as those contained in the interview quoted in the complaint might then be considered to be violative of” the Code of Judicial Conduct’s prohibitions against judges endorsing or opposing candidates for public office.

The definition of a “Judicial Candidate” under the Code of Judicial Conduct is “any person, including a sitting judge, who is seeking selection for or retention in judicial office by election or appointment.”

“A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office,” the Tennessee Code of Judicial Conduct declares.

Judges Filed ‘Notice of Intent’ Last Spring

Documents provided to TNReport by the Tennessee Administrative Office of the Courts show that in May 2013 — about five months prior to publication of the News Sentinel piece — all three of the appellate judges signed and filed notices with the Judicial Performance Evaluation Commission declaring their desire to undergo performance reviews. Each of the three judges’ “Notice of Intent” forms included a check-marked box beside the statement, “I wish to participate in the appellate judge evaluation process to obtain a recommendation for retention or replacement for the 2014 general election.”

The form also included another box, which none of the judges checked, that included the statement, “by not participating in the evaluation process, I am declaring my intent not to seek reelection to my current position in 2014.”

Neither Craft’s December notice to Wade, nor the letter issued last week to NewsChannel5, offers an explanation citing specific provisions of law or judicial-ethics canons to support the board’s decision to dismiss. And there’s no discussion indicating why the “Notice of Intent” forms the judges signed last May did not constitute “a public announcement of candidacy” under the Code of Judicial Conduct.

Craft’s letter to Williams does set forth that “the Board’s Disciplinary Counsel focused on whether the judges who were the subject of Chief Justice Wade’s comments were candidates for public office at the time the comments were made.” But it does not expressly state the conclusion the disciplinary counsel reached, nor offer any description of, or commentary on, the “ambiguity” in the Code of Judicial Conduct that led them to dismiss the complaint against Wade.

Craft: When in Doubt, BJC Throws it Out

Craft, who also serves as a judge in Shelby County Criminal Court, told TNReport in a telephone interview Friday there is in fact no supplemental documentation that was produced or entertained by members of the Board of Judicial Conduct that would further explain the grounds upon which the complaint against Wade was determined. Craft said the confidential notice of dismissal delivered to Wade served as the board’s formal and final official declaration on the matter, until the release of last week’s letter to Williams

Craft indicated that during consideration of the Wade complaint members of the board’s three-member investigative panel couldn’t decide whether or not the appellate judges were candidates at the time of the News Sentinel article. He reiterated that the issue was “ambiguous.”

“It can’t be said that the Code of Judicial Conduct has clearly been violated,” Craft told TNReport. He added, “If we are going to prosecute someone for an ethics violation, we want to make sure it is a clear violation.”

Craft also restated a theme conveyed in the letter to Williams proposing that Wade’s comments to the newspaper be interpreted as criticism of the Judicial Performance Evaluation Commission, not a clear endorsement of judges seeking re-election. As such, Craft suggested the chief justice of the Tennessee Supreme Court enjoys the same right as anyone else to spout personal opinions in public about the activities of state boards and commissions.

“Is a judge allowed to comment on the actions of government as a taxpayer and a citizen? I would say so,” Craft said.

Board’s Reasoning Rings Hollow to Bell

Sen. Bell told TNReport he’s discussed the matter with attorneys for the Tennessee General Assembly who’ve indicated to him “there are about 10 or 12 different categories in Tennessee statutes where the Board of Judicial Conduct can dispose a complaint into.”

“In Craft’s letter, he doesn’t say which one of those the board used,” said Bell. “Was it because of a lack of factual basis? Was it dismissed because the board felt that it lacked jurisdiction? Was the complaint dismissed with a warning? The letter doesn’t say any of those. Those are legitimate questions and questions that I want answered.”

Bell suggested Craft’s explanation that Wade wasn’t endorsing the three appellate judges for new terms, but was merely offering his opinion that they should appear on the ballot without opposition, is a distinction without a difference.

Earlier this week Bell fired off a sharply worded letter of his own to Craft outlining his dissatisfaction with the Board of Judicial Conduct’s handling of the Wade matter. In it, Bell raised the accusation that Wade hadn’t just made ethically suspect comments to the News Sentinel, but that he seemed to be wielding his influence as Tennessee’s most powerful judge to — successfully, as things turned out –convince members of the Judicial Performance Evaluation Commission to reverse the preliminary negative recommendations.

Craft told TNReport that he’d read Sen. Bell’s letter in electronic form, but he had not yet formally received it in hard copy and would not comment on its specifics until he does.

Performance Evaluation Commission Felt Pressured From Chief Justice

In his letter to Craft, Bell wrote that “current members of the (Board of Judicial Conduct) and the (Judicial Performance Evaluation Commission)…told me last fall and continue to say to me that Judge Wade actively and aggressively sought to influence JPEC’s judicial evaluations through lobbying efforts tainting the entire evaluation process. If they are correct, and I believe they are, the Chief Justice of Tennessee’s Supreme Court has damaged the cornerstone of the evaluation process by robbing it of its independence.”

The Judicial Performance Evaluation Commission in fact took issue with Wade’s statements and activities last fall as well. While the commission unanimously voted to recommend that Wade be retained on the Supreme Court, some on the JPEC didn’t like the manner in which Wade handled himself during the period when they were evaluating appellate judges.

Chief Justice Wade’s 2014 Judicial Evaluation Report contains the following:

“Several members of this Commission were troubled by published statements attributed to the Chief Justice which, if accurate, amounted to active endorsement and public lobbying of this Commission to retain each and every judicial candidate irrespective of the Commission’s preliminary votes applying the evaluation criteria of Supreme Court (rules). Although the Chief Justice was subsequently quoted in media reports expressing his support for the Commission’s work, several members of this Commission question whether the Chief Justice’s earlier public comments and advocacy efforts were appropriate.”

The JPEC report on Wade  also states that in the fall of last year, “each of the judges appearing before this Commission were candidates for public office within the meaning of Canon 4.1″ of the Tennessee Code of Judicial Conduct.

Wade Weighs In: Context is Everything

For Chief Justice Wade’s part, he told TNReport in an interview Wednesday that he’s done nothing improper.

Wade stood by the comments reported by the News Sentinel, but said the “context” in which his statements were made was in relation to the judges receiving satisfactory performance evaluation reviews so they could be approved to run unopposed on the August ballot.

“I spoke out in favor of judges at the appellate level back in the fall,” he said. “I believe it to be the duty of the chief justice of the Supreme Court to let the people of Tennessee know that they can trust our judiciary. We have a fair and impartial judiciary, and in my opinion today we have the best judges in the state of Tennessee that I have experienced during my 27 years of experience on the bench.”