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Senate Hearing Set to Probe ‘Judicial Accountability,’ Justice Wade Complaint

A dismissed grievance against state’s most powerful judge will get public review just weeks before August retention election

The Tennessee Senate Government Operations Committee has scheduled a hearing June 24 to examine whether reforms enacted by the General Assembly in 2012 to bolster disciplinary procedures are enhancing “judicial accountability” as intended.

Gov-Ops Committee Chairman Mike Bell, a Republican from Riceville, announced his intention to initiate the probe last week.

A statement from the Senate GOP caucus spokeswoman on Friday said members of both the Board of Judicial Conduct and the Judicial Performance Evaluation Commission may be called to answer questions before Bell’s committee.

Bell has been particularly critical of the state Board of Judicial Conduct’s speedy dismissal of an ethics-violation complaint against Tennessee Supreme Court Chief Justice Gary Wade last fall.

In November, Bell alleged that Wade had violated ethics rules governing Tennessee judges that prohibit them from publicly endorsing candidates for public office. Bell alerted the Board of Judicial Conduct’s disciplinary lawyer, Timothy R. Discenza, that Wade had made comments to a Knoxville News Sentinel reporter indicating support for three state appellate court judges to appear unopposed on the August 2014 judicial retention-election ballot, thus likely ensuring they’d receive new terms.

The Board of Judicial Conduct dismissed the complaint against Chief Justice Wade in December after a preliminary investigation.

Bell said during a press conference last week that the dropped complaint against Wade illustrates “a lack of accountability by the judicial branch of government.”

“I think this lack of accountability has been evident for many years and has surfaced again just recently in regards to an issue where the Supreme Court chief justice of the state of Tennessee, I believe, violated the judicial code of ethics,” said Bell.

Bell is not alone among Republicans who suspect the Wade case was mishandled, and that judicial-ethics reform legislation instituted in 2012 may already need revisiting. He was joined during his press conference announcing plans for the hearing by Senate Finance, Ways and Means Committee Chairman Randy McNally, R-Oak Ridge.

Seven other Republican state senators also signed a letter issued last week to the Board of Judicial Conduct’s chairman, Shelby County Criminal Court Judge Chris Craft, declaring that they “are concerned that complaints continue to be ignored or dismissed without the proper investigation put in place by Public Chapter 819 to ensure a fair and unbiased judicial system.”

Public Chapter 819 is the ethics-enforcement reform package approved by the Legislature two years ago and signed by Gov. Bill Haslam. Among other things, it did away with the old Court of the Judiciary and replaced it with a 16-member Board of Judicial Conduct. The 2012 legislation, which passed 30-0 in the Senate and 86-7 in the House, also established new procedures for evaluating complaints against judges.

Among the senators who signed the letter to BJC Chairman Craft were Mark Green of Clarksville, Todd Gardenhire of Chattanooga, Ferrell Haile of Gallatin, John Stevens of Huntingdon, Rusty Crowe of Johnson City and Speaker Pro Tem Bo Watson of Hixson.

Also a signatory was Janice Bowling of Tullahoma, who later in the week penned an op-ed for The Tennessean in which she alleged that the Board of Judicial Conduct had “recognized that Wade acted unethically, but then manufactured a technicality to protect him.”

Sen. Bowling added that “when boards like the BJC decide to serve the powerful rather than the people, more and more people will come to view the selection process as exactly what it is: a mockery of the justice it is supposed to protect.”

While the Government Operations Committee hearing is planned at this time only to include upper-chamber legislators, House lawmakers will likely be paying close attention.

Gerald McCormick, the House majority leader, told TNReport last week that he applauds the Senate’s decision to inquire into the Wade matter.

“I certainly trust Sen. Bell’s judgement on that, and I would be supportive of looking into that based on my confidence in him on the issue,” said McCormick, the second most powerful lawmaker in the House of Representatives.

McCormick also blasted the campaign by the three state Supreme Court justices seeking retention in the Aug. 7 election. The Chattanooga Republican accused Wade and Justices Sharon Lee and Cornelia Clark of running a “partisan” campaign.

“They need to be replaced,” said McCormick. “I think there are probably at least three good, qualified Republican lawyers across the state who would be good Supreme Court justices.”

McCormick said he’s become increasingly perturbed at the way Wade, Clark and Lee are “behaving as partisan Democrats” as they aggressively seek funds “so they can keep their jobs.”

“They are pressuring lawyers all over the state to give money to their organized political campaign,” said McCormick.

Last week, the “coordinated campaign” to retain the three Supreme Court justices, all of whom were appointed by former Gov. Phil Bredesen, a Democrat, announced they’d raised $600,000 to convince voters to keep them on the bench.

A news release from the 3-justice campaign stated that their “statewide bipartisan effort to keep Tennessee’s judiciary fair and impartial has coalesced quickly with critical endorsements and fundraising that has surpassed expectations.”

A spokeswoman for what they are calling the “Keep Tennessee Courts Fair” campaign said Friday that it’s necessary for the justices to pool their resources and raise a formidable war chest in order to combat “members of the Legislature who are trying to insert politics into the courts.”

“Our goal is to make sure that our constitution is upheld, and that our courts remain impartial, period,” said Carol Brown Andrews, communications director for the campaign.

Andrews said the campaign was formed as a result of Republican Tennessee Lt. Gov. Ron Ramsey’s public efforts to jumpstart opposition to Justices Wade, Clark and Lee.

“The politicians in their political realm have their agenda, and that is fine. Politics belong in the political realm,” said Andrews. “They can debate that all they want. The judiciary is not concerned with that. They are concerned with making sure people’s rights are protected and the Constitution is upheld and everything is fair and impartial. And that’s what the justices are concerned with, and nothing else.”

Rep. McCormick isn’t buying the “Keep Tennessee Courts Fair” argument that the justices’ campaign effort is “broad-based” and “bipartisan.” McCormick said he’s been so troubled by the campaign thus far that he may re-evaluate his support for the “Amendment 2” ballot measure that proposes rewording the state constitution to legitimize the process of “retention elections.”

Retention elections — that is, ballot questions placed before voters that simply ask if a judge should keep his or her post without providing an opposing candidate — have been found constitutional in the past in Tennessee. However, many still question if the uncontested elections meet the plain wording of the state’s governing document in current form, which reads, “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

McCormick, Lt. Gov. Ramsey and other powerful legislative Republicans like House Speaker Beth Harwell, Senate Judiciary Chairman Brian Kelsey and House GOP Caucus Chairman Glen Casada have stated that they believe the so-called Tennessee Plan’s system of Supreme Court justice appointment-and-retention currently lacks constitutional soundness.

McCormick said he hasn’t yet decided whether he’ll start publicly voicing opposition to Amendment 2, which voters will decided in November, but it’s something he’s thinking about.

“I have been in support of Amendment 2, but I am really opening that up to reconsideration based on what I see as really inappropriate behavior by these three Supreme Court justices,” he said. “I may just come out in favor of direct elections of Supreme Court judges after watching these three guys fight so hard to keep their jobs as partisan Democrats.”

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