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Ethics Panel Awaiting Chief Justice Wade Response to Latest Complaint

Billboard in Sevierville may run afoul of ban on judges endorsing other candidates for public office

The disciplinary board that investigates complaints of ethics violations filed against Tennessee judges has asked the state’s Supreme Court chief justice to respond to an allegation that his campaign has breached the Code of Judicial Conduct.

A letter dated July 22 from Timothy R. Discenza, the Tennessee Board of Judicial Conduct’s investigative attorney, states that a complaint filed against Chief Justice Gary Wade has been forwarded “for the judge’s review.”

Discenza’s letter indicates that Wade “has 20 days to respond” to the complaint, which was filed July 8 by George Scoville, a Nashville blogger and political consultant. Scoville said he received the letter from Discenza last weekend. He posted it online Monday as a supplement to a blogpost.

Reached by phone Wednesday, Discenza said he couldn’t in any way comment on the letter or the complaint against Wade.

Scoville noted in his post that the timing of the letter appears to be such that Chief Justice Wade “may not have to acknowledge, much less answer, Discenza’s inquiries arising out of the investigation until after voters cast their final ballots in statewide judicial retention elections next Thursday.”

Sevierville Billboard Seeks to Keep’em in Their Seats

Scoville’s complaint alleges that Wade has run afoul of the state’s Code of Judicial Conduct by putting up at least one prime-location billboard in East Tennessee urging voters to “Retain Your Tennessee Supreme Court.” Also displayed on the billboard is an image of a checkmark beside the word “Retain,” which is in boldface. In the lower corner is an inscription reading, “Paid for by the Friends of Gary Wade, Sam Furrow Treasurer.”

An assistant to Furrow, who is a Haslam family friend and business partner, said the Knoxville businessman was out of the country and unavailable for comment. Emails and voice messages left with others associated with Wade’s campaign went unanswered Wednesday.

Chief Justice Wade, along with fellow justices Cornelia Clark and Sharon Lee, are together running a well-financed “coordinated campaign” to win retention on the Tennessee Supreme Court. Early voting runs through this Saturday, and the official election day is Aug. 7.

The state’s Code of Judicial Conduct prohibits Tennessee judges, including those who serve on the high court, from endorsing other candidates for public office. Wade, Clark and Lee are nonetheless pooling their resources, sharing campaign staff and expenses and making joint appearances around the state before lawyers, civics groups and newspaper editorial boards, as well as airing TV spots lauding their performances together as “fair and impartial” jurists on the state’s court of last resort.

Wade was appointed to the Supreme Court in 2006, Clark in 2005 and Lee in 2008. Wade has been chief justice since 2012. Clark served as chief justice for two years before him. All three were picked to serve by former Gov. Phil Bredesen, a Democrat first elected in 2002 and then again in 2006.

The billboard complaint isn’t the first ethics-violation filed against Justice Wade in the past year alleging that he flouted the Code of Judicial Conduct’s declaration that “a judge or a judicial candidate shall not…publicly endorse or oppose a candidate for any public office.” The state’s most powerful judicial officeholder has been a target of criticism by Republicans in the Tennessee state Senate. This latest complaint marks at least the third time Chief Justice Wade’s outside-the-courtroom activities have been called into question through filings with the Board of Judicial Conduct — although his critics have yet to make anything officially stick.

Successful Complaints Lacking So Far

A 2009 Belmont University graduate and self-described libertarian who used to work for the Cato Institute in Washington, D.C., Scoville has already challenged the way in which the three Supreme Court justices are campaigning together.

Back in June, he filed a lengthy complaint alleging that through their coordinated campaign, “Keep Tennessee Courts Fair,” the three justices are “implicitly endorsing each other.”

However, the Board of Judicial Conduct dismissed Scoville’s initial complaint with a short form-letter saying “proof of the ethics violation must be ‘clear and convincing.’” The letter, signed by Memphis Judge Chris Craft, the Board of Judicial Conduct’s chairman, states that members “did not feel such a burden could be met in this case.”

The Board of Judicial Conduct is presently comprised of 10 judges, three practicing lawyers and three non-lawyer “members of the public.” Over the past year, several of the members of the Board of Judicial Conduct have been jockeying for promotions within Tennessee’s judiciary. Judges Holly Kirby and Jeffrey Bivins, who both have been picked by Gov. Haslam to serve on the state Supreme Court, are members of the Board of Judicial Conduct. Judge Craft, the board’s chairman, also applied last fall to serve on the Supreme Court, but lost out to Kirby.

The board’s vice chairman, Timothy Easter, a Middle Tennessee circuit court judge, has applied to fill two different vacancies on the Court of Criminal Appeals. Both Easter and Justice Clark were targets of yet another complaint by Scoville, who alleged that when the two posed together for a newspaper photo at a Clark campaign fundraiser back in May, they were violating the code. The board dismissed that complaint as well.

Among its other responsibilities under state law, the BJC is charged with examining “the conduct of candidates for judicial office.” And among the “judicial offenses” of which the Board of Judicial Conduct shall “take cognizance” is “a persistent pattern of intemperate, irresponsible or injudicious conduct” or any violation of the Code of Judicial Conduct.

A Glimpse into BJC’s Goings-On

Normally, the Board of Judicial Conduct is an extremely secretive body. Decision-making processes are, in keeping with state law, almost always hidden from public view.

Last month, though, some of the particulars of its otherwise classified machinations came to light and were scrutinized by Republican members of the Tennessee Senate during a hearing to look into whether the board had thoroughly probed a complaint last year against Wade. In that case, Wade was alleged to have violated the Code of Judicial Conduct by publicly voicing support for appellate level judges seeking to run unopposed on the August ballot.

That complaint, which was based on a veteran state Capitol newspaper reporter’s published interview with the chief justice, was also dismissed. Members of a newly formed Senate Ad Hoc Committee on Judicial Accountability were told June 24 by BJC Chairman Craft that there is “ambiguity” in the way the Code of Judicial Conduct is worded. Craft said it would’ve been difficult to get a jury of board members to agree that the evidence was “clear and convincing” Wade had violated ethics rules.

During the Senate committee’s hearing, Judge Craft testified that the board took it for granted that the newspaper’s article accurately reported Wade’s comments indicating he felt the judges were worthy of new terms. Craft added, though, that “at no point did (Chief Justice Wade) say, ‘The people should vote on August 7 for these people,’ or ‘The people should support this person.’”

“I think an average person on the street might consider it as an endorsement, a lawyer probably would not, parsing words, and so it was unclear,” Craft continued. He added that when Wade was informed that the complaint against him had been dismissed, “it was put in the letter, this might appear to some people that it’s an endorsement, but we don’t find – we can’t find a clear violation of the rule. And that’s the problem — it’s really unclear what the definition of ‘endorse’ is.”

Later, under questioning from Senate Judiciary Committee Chairman Brian Kelsey about what would rise to the level of an “endorsement” in the eyes of the Board of Judicial Conduct, Craft said, “If the statement had been, ‘Everyone needs to get behind these judges on August 7th,’ that would be an absolutely clear statement of endorsement in an election.”

Scoville argued in his latest complaint that a billboard reading, “Retain Your Supreme Court Vote Aug. 7th,” seems to unambiguously constitute an “endorsement” under both the Code of Judicial Conduct and BJC Chairman Craft’s testimony before the Senate committee.

Noting that the only members of the Tennessee Supreme Court running for retention this year are in fact Justices Wade, Clark and Lee, Scoville wrote in his complaint that “the only reasonable interpretation of the electioneering communication on the billboard is that it calls on citizens to cast retention votes for all three Tennessee Supreme Court justices seeking retention on August 7, 2014.”

Bell: Been Down This Road Before

Sen. Bell, who chairs both the Government Operations Committee as well as the Ad Hoc Committee on Judicial Accountability, said he’s seen the Wade campaign’s sign in Sevierville and believes it’s a plain violation of the Code of Judicial Conduct. “I don’t see how that billboard could not be anything but an endorsement of the other two candidates. And it’s being paid for by Justice Wade alone,” said Bell.

Nevertheless, Judge Craft and the BJC’s disciplinary lawyer, Discenza, are adept at “wordsmithing” to get results they want, Bell told TNReport.

“I’m sure they could find some way to say that’s not an endorsement,” said Bell, who was the source of the original complaint against Wade last year alleging that he improperly endorsed appellate judges. “Whether it warrants being looked into further by the ad hoc committee, that’s something that is still open for discussion, and something we’re looking into. But we’ve not made a decision yet on whether we’re going to or not.”

Judicial Ethics Enforced at BJC’s Discretion

In an interview earlier this month Judge Craft assured TNReport that the Board of Judicial Conduct takes all complaints against judges seriously, but he also noted that the members reserve the authority to disregard infractions they don’t feel warrant disciplinary action.

“Not every violation is worthy of discipline,” Craft said.

He alluded to language in the Code of Judicial Conduct that states, “Although the black letter of the (Code of Judicial Conduct) is binding and enforceable, it is not contemplated that every transgression will result in the imposition of discipline.” The code goes on to indicate that when mulling evidence or accusations of a judicial ethics breach, members of the BJC may weigh “factors such as the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others.”

Craft told TNReport, “We decide cases on the merits of the situations.”

Craft furthermore rejected suggestion that voters should take it upon themselves to “enforce” the Code of Judicial Conduct at the polls.

“Most voters have never heard of the Code of Judicial Conduct,” Craft said. “It is our job to enforce the Code of Judicial Conduct and our disciplinary counsel’s job to prosecute people who violate the code. I would not say it is the voters’ job to do that, it would be our job to do it because we could not really educate all of the voters about the code.”

Alex Harris contributed to this story.

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