An ad hoc committee of the Tennessee Senate is scheduled Tuesday to hold a hearing on how the state goes about enforcing ethics rules that are supposed to govern the behavior of sitting judges.
Specifically, the main aim of the hearing will be “to investigate allegations of improper meddling by Supreme Court Chief Justice Gary Wade and others into the decision-making of the Judicial Performance Evaluation Commission (JPEC), and the failure of the Board of Judicial Conduct to adequately enforce the state’s Code of Judicial Conduct,” according to a background information sheet circulated by committee organizers.
Sen. Mike Bell, R-Riceville, will chair the committee. Also tentatively planning to take part are Finance Committee Chairman Randy McNally, R-Oak Ridge, Judiciary Committee Chairman Brian Kelsey, R-Germantown, Jim Summerville, R-Dickson, Janice Bowling, R-Tullahoma, Ophelia Ford, D-Memphis, Todd Gardenhire, R-Chattanooga, Ferrell Haile, R-Gallatin, Thelma Harper, D-Nashville, and Senate Minority Leader Jim Kyle, D-Memphis, who is currently running for Chancery Court judge in Shelby County.
Bell announced plans for the hearing at a press conference earlier this month. He told reporters at the time that he believes Chief Justice Wade got away with a clear ethics violation last year when he made favorable public statements for, and allegedly lobbied privately on behalf of, appellate court judges seeking JPEC’s authorization to run unopposed for new 8-year terms.
The state’s Code of Judicial Conduct prohibits judges from endorsing or opposing anyone seeking public office. Bell alerted the Board of Judicial Conduct that he believed Wade had violated the code in November, but the complaint against the chief justice was dismissed about a month later.
Bell said during his press conference three weeks ago that the Board of Judicial Conduct’s seeming refusal to address the Wade matter in a substantive and thorough manner is indicative of “a lack of accountability by the judicial branch of government.”
Among those invited to appear as witnesses before the ad hoc committee Tuesday are the Board of Judicial Conduct’s chairman and disciplinary counsel, Judge Chris Craft and Timothy R. Discenza, respectively. Other members of the Board of Judicial Conduct and JPEC are also invited to give input.
The hearing will likely focus mostly on the controversy over the Board of Judicial Conduct’s handling of the Wade investigation, and whether JPEC is sufficiently independent and insulated from political influence to objectively grade judges and make credible recommendations as to whether they deserve new terms. Under Tennessee’s system of “retention” elections for appellate level judges — including those who serve on the state’s highest court — JPEC rates the performance of the judges and decides whether they should be allowed to run unopposed or potentially face a challenger.
The backdrop to the hearing, though, is a panorama of legal uncertainty, political volatility, constitutional discord and brass-knuckle partisanship.
Three Tennessee Supreme Court Justices who were appointed by Democrat Phil Bredesen, the former governor, are running in retention elections in August. Justices Wade, Cornelia Clark and Sharon Lee have reportedly together raised hundreds of thousands of dollars in anticipation of a Republican-led attempt to convince voters to bounce them off the high court.
Add to that yet another ethics complaint that’s been filed with the Board of Judicial Conduct against Chief Justice Wade, as well as Lee and Clark, who are all three participating in a “coordinated campaign” for retention on the Supreme Court and are pooling their cash to pay a single campaign staff.
The complaint, filed by George Scoville, a Nashville blogger and political consultant, accuses the three high-court justices of numerous Code of Judicial Conduct breaches — most centrally, that they are endorsing one another for retention in violation of ethics prohibitions against such behavior. Scoville is also demanding that they be ordered to return all the contributions they’ve raised through their appearances together, or through their cooperatively run website and campaign, which they’ve dubbed “Keep Tennessee Courts Fair.”
In another development, on Monday Gov. Bill Haslam announced he’d appointed a hand-picked special Supreme Court to decide another of John Jay Hooker’s legal challenges to Tennessee’s judicial appointment-and-retention system that have been wending through the courts. This one, Hooker vs. Lt. Gov. Ron Ramsey, argues that the Judicial Performance Evaluation Commission — the same JPEC that’ll undergo scrutiny Tuesday — is illegally comprised and therefore ought to be disbanded.
According to state law, the membership of JPEC, which is selected by the speakers of the state House and Senate, shall “approximate the population of the state with respect to race and gender.”
Hooker, a perennial fly in the ointment for Tennessee’s legal establishment, argues that because there are seven men and two women on JPEC — and more than half of the population of Tennessee is female — the commission is illegitimate. A lower-court judge has already agree with Hooker that JPEC as currently composed “is invalid under (state law) and unconstitutional under the Due Process and Equal Protection clauses of the United States and Tennessee Constitutions.” Hooker is an indefatigable foe of anything that gives aid or comfort to the “Tennessee Plan” for judicial selection, and he’s hoping the roughly 20 appellate court judges — as well as the three Supreme Court justices — who obtained JPEC’s blessing to appear on the retention ballot will ultimately be forced to run in contested elections.
And finally, looming on the horizon in the November general election is a ballot measure, Amendment 2, which seeks to put to rest the decades-old ambiguity and uncertainty surrounding the Tennessee Plan.
Most Republicans in the GOP supermajority-controlled state Legislature believe a plain reading of the state Constitution’s mandates that judges, particularly on the Supreme Court, be popularly elected. Under the current system in place, however, appellate and Supreme Court judges are selected by the governor and placed only later — after they’ve been hearing cases and delivering opinions — on the ballot to cruise uncontested to what’s almost always an easy retention-election win.
Yet even though there’s deep-seated suspicion among conservatives in the Legislature that the system in place now doesn’t pass constitutional muster, many top Republican politicians, like Ramsey and Gov. Haslam, fear that reverting to contested popular elections for appellate level judgeships would taint the judiciary by forcing judges to concern themselves with fundraising and campaigning instead of concentrating solely on applying the law in the criminal and civil cases that come before them. So instead, they’re backing Amendment 2, which would constitutionally enshrine a system not too much unlike how federal judges are picked, but with the added feature that both houses of the legislative branch would have to confirm the nomination by the executive, rather than just the Senate as it’s done in Washington, D.C.
However, the winds of public opinion look to be blowing against the Amendment 2 push. A poll released last month by Vanderbilt University’s Center for the Study of Democratic Institutions found that 53 percent of those surveyed think judges should be elected by the voters of Tennessee. Only 22 percent prefer the governor make the appointments, and another 22 percent “haven’t thought much about it.”
Haslam has said he unequivocally opposes direct judicial elections, and plans to advocate keeping the current “Tennessee Plan” system in the event that Amendment 2 fails in November. That would very likely put him on a collision course next year with lawmakers who have said the state will have “no choice” but to re-establish contested elections for, at a minimum, the five seats on the Tennessee Supreme Court.
The governor has said he fears a knock-down drag-out political brawl this summer over the retention of Supreme Court Justices Wade, Lee and Clark could make the fight to pass Amendment 2 even more difficult in the fall.