Haslam Blasts Feds on Placement of Immigrant Kids in TN

In response to the U.S. Deptartment of Health and Human Services placing hundreds of unaccompanied immigrant children in Tennessee, Gov. Bill Haslam on Friday shot off a letter to President Barack Obama complaining that the state wasn’t appropriately consulted about the federal government’s decision ahead of time.

“It is unacceptable that we became aware via a posting on the HHS website that 760 unaccompanied children have been released by the Office of Refugee Resettlement to sponsors in Tennessee without my administration’s knowledge,” the letter from Haslam states. “Not only was our state not informed prior to any of the children being brought here, I still have not been contacted and have no information about these individuals or their sponsors other than what was posted on the HHS website and subsequently reported by media.”

According to Haslam, when the nation’s governors met in Nashville earlier this month, they discussed the issue of the immigrant minors with HHS Secretary Sylvia Mathews Burwell. The Republican governor said he “emphasized to Secretary Burwell the need to be informed of any children being relocated to our states.”

Haslam was joined in his criticism of the federal response to the situation by other state executives, such as Mississippi Gov. Phil Bryant and New Jersey Gov. Chris Christie — both Republicans — and Kentucky Democrat Steve Beshear.

The emergency placement of unaccompanied immigrant youths within the United States was the federal response to dealing with thousands of foreign children and teenagers who have fled violence in Central America, coming to the U.S. under the belief they will be allowed to stay as minors. The children are processed through government shelters, and then placed with sponsors while undergoing deportation proceedings.

Citing the possible “significant impact” that the placement of unaccompanied immigrant minors could have on state and local government, Haslam also includes in the letter several questions for the administration in relation to the minors already placed in the state. These questions include what the process was for determining children should be released to Volunteer State sponsors, how were those sponsors chosen, where the children were placed, what medical screenings the children had and how long will these youth be in the state.

U.S. Sen. Lamar Alexander has criticized Obama’s response to the situation at the border, saying that it didn’t appear as if the president had a clear plan to address the problem. Alexander has also suggested that Obama consider calling out the National Guard to help with the crisis.

Alexander has, however, been doggedly criticized on the issue of immigration by his GOP primary challenger, state Rep. Joe Carr. The 56-year-old Lascassas Republican has used the most recent immigration controversy to slam Alexander over his history of supporting immigration reforms generally opposed by Tea Party conservatives, including the June 2013 bipartisan amnesty bill. Carr has suggested Alexander is a tool for the U.S. Chamber of Commerce, that the former Tennessee governor wants to increase the number of immigrants to ensure an “over-supply of labor” to “suppress wages.”

On another front, 32 Republican members of Congress –including Brentwood Rep. Marsh Blackburn — signed a letter earlier this month calling on President Obama to rescind his 2012 executive order granting deportation stays to unaccompanied children.

House GOP Votes to Explore ‘Bilateral Session’ with Federal Delegation

The Republican supermajority caucus of Tennessee’s House of Representatives wants state lawmakers to host a get-together with the state’s congressional delegation.

At least some do.

A majority of House Republicans who attended a caucus meeting at the Capitol on Wednesday voted 31-16 to form a steering committee tasked with organizing a joint “bilateral session” to be held in January or February.

As proposed, the meeting would be in the Tennessee House chambers, co-chaired by the speakers of the state House and Senate, Beth Harwell of Nashville and Ron Ramsey of Blountville.

The discussion would center around topics deemed relevant to Tennessee by the Republican-controlled Legislature. The subjects of discourse would be given to the federal legislative delegation in advance, said Tullahoma Rep. Judd Matheny, who last week announced the idea.

The chairman of the House Government Operations Committee, Matheny wants Tennessee’s nine U.S. Representatives and two Senators to publicly and formally meet with state lawmakers to discuss congressional issues that affect the people and government of Tennessee.

Only two of the state’s lawmakers in Washington are Democrats: Reps. Steve Cohen of Memphis and Jim Cooper of Nashville.

“We need to do something to reach out to our congressmen in Washington,” Matheny said Wednesday. “There’s no reason we can’t have a dadgum good meeting.”

Matheny said the aim of his proposal is to start a conversation that “will leave both levels of government with a clear understanding of each other’s needs and actions while rebuilding public confidence.”

Matheny’s long-range plan is to hold such conferences annually. A seven-member steering committee will be appointed by Speaker Harwell. The committee will have four state senate members, should the Senate Republican caucus choose to join.

House GOP caucus members who attended Wednesday’s meeting expressed a variety of reasons for wanting to hold the meeting. The gist is they want to “open the lines of communication” on a perceived disconnect between Tennessee and Washington. Supporters of the meeting want to discuss what a number of Republicans see as an undermining of state sovereignty by Congress and the federal government.

Not all caucus members were completely sold on the idea, though.

Ooltewah state Rep. Mike Carter worries about opening the Tennessee Legislature’s doors to congressional dysfunction. “If we bring the problems in Washington to Nashville, I will be disgraced,” he said.

Rep. Ryan Haynes, R-Knoxville, likes the idea of a developing a constructive forum for sharing ideas between Tennessee’s members of Congress and the General Assembly, but he suggested moving forward cautiously until all the details of the conference’s aims are hammered out. Haynes said he doesn’t see much point in organizing a meeting doomed to degenerate into an ideological war of words between Democrats and Republicans.

Matheny tried to assuage such concerns. He stressed that the purpose of his proposal isn’t to spark a “political witch hunt,” but rather facilitate a “political business-meeting about issues.”

Matheny said he’s not simply trying to give state lawmakers “an opportunity to vent” at Tennessee’s members of Congress.

Obamacare Exchange Fiasco Provides Fodder for Alexander

The Obama administration’s Affordable Care Act medical coverage “exchanges” that rolled out this month are billed as “a new way for you to find and buy health insurance, with less hassle.”

But two weeks after the online launch of the federal government’s highly touted, highly anticipated “Health Insurance Marketplace,” hassle is the most predictable result anybody who’s tried to use the system has experienced.

Tennessee is among the 34 states that aren’t currently attempting to run an exchange on their own under the ACA, thus ceding management of the program to the federal government.

HealthCare.gov is the U.S. government’s online Obamacare portal for uninsured Americans to sign up for federally subsidized health insurance policies. Through the site, Tennesseans can, in theory, apply for plans, compare options and get covered.

Once consumers complete an application, they are supposed to be able to see if they qualify for lower costs on health insurance based on income, as well as free or low-cost coverage available through Medicaid or the Children’s Health Insurance Program. According to the U.S. Health and Human Services Department, consumers will be able to choose from a variety of health plans from different insurance providers.

That’s the idea, anyway.

In reality, the vast majority of potential customers have encountered an epidemic of error messages and other debilitating online ailments as they attempt to navigate the site, which cost the United States government hundreds of millions of dollars it paid a Canadian company to develop.

A poll co-sponsored by the Associated Press found that 65 percent of respondents who said they or a member of their household had tried to sign up for exchange coverage from Oct. 3-7 reported no success. Seventy-thee percent said they were confronted with problems of one sort or another.

An article in Sunday’s New York Times reported that one of its staff researchers “managed to register” in the early-morning hours when the site launched on Oct. 1. “But despite more than 40 attempts over the next 11 days, she was never able to log in. Her last attempts led her to a blank screen,” according to the Times.

As Tennessee Sen. Lamar Alexander sees it, one of the biggest problems that looms ever larger as a result of the exchange website’s technical woes is that the federal government is set to penalize Americans who fail to enroll in government-approved health insurance plans by mid-February. In 2014, the tax amounts to 1 percent of your income or $95, whichever is higher. The amount increases in later years.

Alexander, who is facing a GOP primary challenge from conservative Rutherford County state Rep. Joe Carr, went on a PR offensive against the Obamacare exchanges last week, issuing four media releases — three on Thursday alone — lambasting the performance of the Affordable Care Act’s key policy prong.

“The Obama administration persisted with the roll out of the Obamacare exchanges on October 1, despite countless warning signs that the exchanges were not ready to handle the millions of Americans required to purchase health insurance or face tax penalties from the individual mandate,” a release Wednesday from Alexander’s office stated.

On Thursday, Alexander, the ranking Republican on the U.S. Senate Health Committee, co-signed a letter with California Republican Darrell Issa, chairman of the House Government Reform Oversight Committee, requesting an explanation from the Obama administration’s health department chief “to help us evaluate the extent of the problems with Obamacare’s rollout and for us to better determine whether any corrective legislative actions are necessary.”

“From day one…HealthCare.gov has been plagued by what administration officials initially referred to as technical glitches. After six days the administration finally admitted the glitches were ‘design and software problems that have kept customers from applying online for coverage,’” Alexander and Issa said in their letter to HHS Secretary Kathleen Sebelius.

Alexander cited news reports of people waiting as long as 36 hours to enroll for insurance. He pointed to estimates indicating 99 of every 100 applications went unprocessed, and indications that many who believe they have coverage actually don’t.

Other news reports said administration officials admitted only 51,000 applications were processed through Oct. 10. At the same rate only 2 million people would be enrolled in Obamacare by the cut-off date of March 31, 2014, but 7 million are said to be needed for the health insurance experiment to work.

Online Marketplace Plagued With Problems

U.S. Department of Health and Human Services officials have claimed heavy traffic caused HealthCare.gov to crash. “On the first day, there were seven times as many users at one time as have ever concurrently visited Medicare.gov – one of the most visited government websites,” HHS’s Alicia Hartinger said.

But independent analysts and outside observers say the problems clearly go much deeper. Probes into the way the website was built have found coding defects, “a sloppy software foundation” and other fundamental failings, according to the Wall Street Journal.

One recurring source of ACA sign-up stoppage was related to malfunctioning security measures that persistently prevented customers from creating accounts because the federal site could not confirm the identities of enrollees, according to Kaiser Health News, a nonprofit that covers American health policy and politics.

According to Sunday’s New York Times report, the knowledge that blunders were abounding was no secret among Obamacare insiders:   

“These are not glitches,” said an insurance executive who has participated in many conference calls on the federal exchange. Like many people interviewed for this article, the executive spoke on the condition of anonymity, saying he did not wish to alienate the federal officials with whom he works. “The extent of the problems is pretty enormous. At the end of our calls, people say, ‘It’s awful, just awful.’ ”

Interviews with two dozen contractors, current and former government officials, insurance executives and consumer advocates, as well as an examination of confidential administration documents, point to a series of missteps — financial, technical and managerial — that led to the troubles.

Sen. Alexander noted in one of his releases that he’s been predicting an Obamacare “train wreck” for a while now. The Obama administration was no doubt privy to the trouble ahead but did nothing to apply the brakes, he said.

“According to some reports,” he wrote, “the administration was repeatedly warned that the federal exchange had significant problems. Insurers complained that during tests of the exchange there were difficulties with transmissions to insurers, with insurers not receiving all necessary data about individuals enrolling in plans during tests.”

Tennessee Democratic Party: State Should Have Created Its Own Exchange

Against the backdrop of all this, of course, is the federal shutdown. Gov. Bill Haslam recently lamented that the travails of the federal Obamacare exchange should have provided a publicity coup for Republican opponents of the president’s signature policy initiative. Instead, the federal shutdown has been receiving most of the media’s attention, with much of the focus on the perceived intransigence of GOP lawmakers in Washington pressing for a delay in implementation of the Affordable Care Act by refusing to approve a budget.

“The health care plan is stumbling a little coming out of the gate, there’s difficulties — the president hasn’t had the best last two months of his tenure. And this should be a good time for us,” Haslam told reporters in Nashville Oct. 4. “Instead, all the conversation is about the government shutdown, and people are going to, I think, lay a portion of that blame on Republicans.”

Brandon Puttbrese, spokesman for the Tennessee Democratic Party, said the state’s Republicans share blame for Obamacare’s exchange failures, too — or at least for Tennesseans having to subject themselves to the federal government’s handling of it.

Giving over responsibility to the Obama administration for developing and running the ACA insurance exchange in Tennessee was a “missed opportunity” for the Haslam administration, Puttbrese said. Retaining local government control is usually preferable to the federal government managing programs, and Haslam should have resisted handing the reins over to Washington, he said.

“Former Sen. Bill Frist (a Republican) was one of the first to come out and advocate for a state exchange,” Puttbrese said. “We have some of the best minds in health care in Tennessee. It seems silly to punt to the federal level.”

Republicans: No Surprise Here, Obamacare a Mess

Tennessee Senate Majority Leader Mark Norris, R-Collierville, agreed that the feds have a long history of conducting programs poorly, and said the Obamacare exchange will likely be no different.

But be that as it may, Norris said, “it’s a federal program and it needs to be administered by the federal government, unfortunately.”

“They’re not going to do very well at it, but they’ve got to fix it,” he said.

Norris was among most of the state Senate GOP supermajority who last week signed a letter to President Obama accusing him of using the federal shutdown “to intimidate opponents of Obamacare into capitulating and selling out their constituents – constituents who want the Affordable Care Act repealed and replaced.”

Michelle Willard and Mark Engler contributed to this report.

ESPN Tackles Haslam Family, Pilot Oil Investigation

ESPN has recently tackled the fortunes of the Haslam family with two articles detailing its struggle with an FBI investigation and Jimmy Haslam’s purchase of the NFL’s Cleveland Browns.

A story from Oct. 9 outlines the FBI’s investigation into Pilot Flying J and Jimmy Haslam’s role in the scandal.

Although Haslam insists that he is “making it right” with his customers who were shortchanged on their rebates, the FBI investigation continues. Agents and prosecutors are sifting through what one lawyer involved in the investigation said are “literally millions of pages of emails and documents.”

At least 11 former Pilot employees already are cooperating with the FBI and offering evidence against Pilot. Seven of them have entered guilty pleas to fraud charges, and four have obtained immunity from prosecution in return for their cooperation. Late last month, federal prosecutors, in a major signal, arranged to postpone the sentencing of the seven to allow the FBI to continue its probe. The delay shows that the investigation is growing beyond earlier expectations, say lawyers and an investigator involved in the probe who spoke to ESPN.com on condition of anonymity. The court cases are now scheduled for a report to the judge on Feb. 3.

And:

Western is one of 27 trucking companies that have sued Pilot and demanded payment of the discounts they were promised. There’s also a class-action lawsuit filed in Little Rock, Ark., on behalf of all Pilot customers in which Haslam and Pilot have made a major settlement offer. But as enormous as his problems with his customers might be, Haslam’s biggest problem is the FBI’s continuing investigation.

According to the sworn FBI statement filed in federal court in Knoxville, the probe began when an individual known only as Confidential Human Source 1 (CHS1) told the FBI that an employee of Pilot had described to CHS1 a vast scheme in which Pilot officials “had been intentionally defrauding” Pilot customers by withholding amounts due to customers in the form of monthly rebate checks. Instead of sending the promised rebate on the fuel purchased by the customer, Pilot employees reduced the amounts of the rebates to increase company profits and to increase their sales commissions.”

The sports website then published another story that digs deeper into the Haslam family.

The Haslams are one of the most powerful families in the South. Jimmy’s younger brother, Bill, is the governor of Tennessee and is considered a potential Republican candidate for the White House in 2016. They don’t like to talk about that, of course. One store at a time, one election at a time. Their father, “Big Jim” Haslam, is a regular Horatio Alger story, taking Pilot from a tiny gas station to an American interstate institution.

And:

When (Bill) Haslam was elected governor in a landslide in 2010, Big Jim swelled with pride. He filled his office with pictures of his boy on election day. A February 2013 article in Politico called Haslam “the most important Republican governor you’ve never heard of,” a man who makes government work. The article said Haslam had a 68 percent approval rating at the time.

But he has his share of critics. They bristled when Haslam refused to disclose his personal ownership stake in Pilot. They wondered why one of Haslam’s advisers has also been working with Pilot’s public handling of the FBI investigation.”The Haslams have done some wonderful things in the community,” said Tennessee state Rep. Gloria Johnson. “[Bill] might be a nice family man and all of that. But unfortunately as governor, he’s appointed Pilot board members to high-powered government jobs and given preferential treatment to businessmen and lobbyists with ties to Pilot.

When taken together the articles imply the FBI may still indict Jimmy Haslam.

In which case the Haslams are rumored to have a contingency plan; the reins would be handed to Big Jim Haslam, who refused to comment on the rumor.

AG: Haslam Can Still Appoint Judges in Absence of Nominating Committee

Gov. Bill Haslam has the authority to fill judicial vacancies now the Judicial Nominating Commission has ceased to operate, Tennessee’s Attorney General has declared.

Haslam requested the opinion from Attorney General Bob Cooper after the General Assembly failed to reauthorize the JNC at the end of the last legislative session. The Legislature didn’t replace commission with an alternative mechanism for appointing judges. The panel was created in 2009 to screen applicants and select nominees for judicial appointments.

“After the Judicial Nominating Commission terminated this past session, our office requested guidance from the Attorney General on the governor’s options for appointing judges going forward,” said Dave Smith, spokesman for the governor.

Smith said Haslam wants continuity in the process until a proposed state constitutional amendment establishing a new judicial selection process appears on the November 2014 ballot. In 2012, the General Assembly approved a measure to amend the Tennessee Constitution that would apply to all Supreme Court justices and other appellate judges.

“The governor will now have further discussions with legislative leadership on next steps in working toward the common goal of a fully functioning judiciary in Tennessee,” Smith said.

TBI: Former Executive Director Of UCDD Indicted On State Charges

NASHVILLE – The Tennessee Bureau of Investigation’s case against the former executive director of the resulted in a grand jury indictment against her Tuesday, Oct. 8.

Wendy-Askins

Wendy Askins

Wendy Askins, 52, of Cookeville, Tenn., was indicted for taking money from the Upper Cumberland Development District to use toward the Living the Dream home, a home built as an independent living home for middle income seniors in Putnam County.

The Putnam County grand jury charged Askins with one count of theft over $60,000, one count of money laundering and one count of forgery.

While employed as the executive director Askins inserted into the Feb. 16, 2010, Upper Cumberland Development District board meeting minutes a paragraph stating that $300,000 was to be transferred to the Cumberland Regional Development District for an independent living home.

TBI’s investigation revealed that the transfer of funds was never discussed at the meeting. Askins transferred $300,000 out of the Upper Cumberland Development District account and used the money for the “Living the Dream” home.

The home was built to provide an independent living environment to middle income seniors in the area.

Although Askins had a residence in Putnam County, she and her daughter used the Living the Dream home as their primary residence. TBI investigated the case with the Office of the Attorney General and the Tennessee Comptroller’s Office.

The UCDD employed Askins as its executive director for 17 years prior her being released from the position.

Askins turned herself in on the charges at the Putnam County Jail and was released on a $25,000 bond. She is scheduled to appear in court on Nov. 12, 2013.

Bell Buckle Schoolteacher Enters Race For U.S. House Seat

John Anderson

John Anderson

A third Republican, John Anderson, of Bell Buckle, announced his candidacy for the 4th District U.S. House of Representatives seat in the August 2014 primary, the Shelbyville Times-Gazette reported.

According to the Times-Gazette:

Anderson is a schoolteacher and political activist.

“I work with young people and their families every day, and I see optimism about the future fading,” Anderson said in a news release. “There is a sense of helplessness and a quiet anger. We won’t accept that. We Americans are a strong, courageous people. We are going to take our country back from the politicians and their corporate cronies. That is the fight I am going to lead.”

Anderson has taught mathematics in Bedford County schools for 30 years and served as an officer on the Bell Buckle Fire Department.

Anderson will face state Sen. Jim Tracy, R-Shelbyville, and incumbent Rep. Scott DesJarlais, R-South Pittsburgh, in the August 2014 Republican primary.

Ban on Local ‘Living Wage’ Regs Bound for House Floor

Towns and cities would be barred from dictating the wages or benefits paid by private businesses under a bill set for a House vote next Thursday.

The move is the latest in a four-year battle to block so-called living wage bills at the local level. If passed, the bill would nullify bills passed in Nashville and Shelby County that require businesses that contract with those governments to offer a certain level of wages and benefits to employees.

Sponsored by Rep. Glen Casada, House Bill 501 would prohibit local governments from setting wages, family leave and insurance benefits that private businesses must offer employees. It also blocks local regulations that address wage theft.

On Tuesday the bill passed the House Local Government Committee 11-5 along party lines, with Republicans joining Casada while Democrats voted against.

“The most important person here is the taxpayer,” the Franklin representative said. “When a project costs more than it should, the taxpayer pays that. So this is a pro-taxpayer bill.”

Even if the legislation passes, there is no certainty that Gov. Bill Haslam will sign it.

“I’m not a fan of the living wage,” Haslam told the Chattanooga Times-Free Press in 2011. But local “governments should be able to decide for themselves if they want to do that.”

During the committee meeting, Rep. Mike Stewart, D-Nashville, questioned why local governments should be prohibited from requiring private companies to pay people “a living wage” if the company wants to do business with that government.

“You know in Davidson County, it’s harder to live. It’s more expensive,” Stewart said. “If the Davidson County legislators or council wants to say, for our contracts, we’re going to require that people be paid a living wage, why shouldn’t Davidson County people be able to control their own contracts?”

Casada replied that the problem is when a city dictates to a private business that operates statewide what that business must pay its employees.

“That’s not good public policy,” he said. “It drives up the cost of doing business, which is a burden to the taxpayers of Tennessee.”

This is not the first time this type of legislation has come before the General Assembly. Attempts by Casada and Sen. Brian Kelsey, R-Germantown, to prohibit local governments from establishing living wage laws date back to 2009.

The bill goes to Calendar & Rules to be scheduled for a vote on the House floor. The companion bill in the Senate, SB35, by Kelsey, has been referred to the Senate State and Local Government Committee.

Amelia Morrison Hipps may be reached at amhipps@capitolnewstn.com, on Twitter at @CapitolNews_TN or at 615-442-8667.

Haslam Expects Voucher Dialog in ’13 Regardless If He’s On Board

Expect lots of discussion about whether taxpayers should send students to private schools on Capitol Hill next year, Gov. Bill Haslam said Thursday.

The governor said the state needs to have a serious discussion about a school vouchers program, but said he’s still undecided whether he’ll throw his full support behind a proposal due to him later this fall. A Haslam-appointed task force stopped short of firming up details of a proposed plan Wednesday.

“A lot of it depends on what it looks like. Let’s get the very best form, see what it looks like for Tennessee, then we as an administration will decide where we’ll be on that,” Haslam told reporters after a Nashville economic development announcement.

The state task force is still torn on key aspects of a proposal to use taxpayer money to pay for students to attend the private, parochial, charter or non-zoned public school of their choice. Major sticking points range from when the system would kick in to which students could cash in.

“You can get the policy right but still screw things up on the ground,” said Chris Barbic, a task force member and superintendent of the state’s Achievement School District, an arm of the state Department of Education charged with turning around failing schools.

Barbic, who founded a successful charter school in Texas before joining the Haslam administration in 2011, said he knows the state is juggling a handful of education reforms right now but said there’s no use in waiting to come up with a voucher plan.

“Parents get to figure out where they buy bread and toothpaste, and we’re going to limit their options on where they send their kids to school?” he said. “I have a hard time with that.”

The Republican-led General Assembly is anxious for the recommendations of the task force after the governor put off the issue of offering “opportunity scholarships” this year in favor of more study about what a voucher program would look like in Tennessee. Speakers of both chambers say they, too, expect vouchers to be a key issue in the 2013 legislative session.

Adopting a voucher concept would further the school choice movement in Tennessee, piggy-backing on a handful of charter school reforms over the last few years that lifted the cap on the number of allowed charter schools and opened enrollment beyond low-income and academically struggling students.

Choices are good, said Indya Kincannon, vice-chair of the Knox County Board of Education, who also sits on the task force. But the goal needs to be improving educational outcomes rather than simply offering choice, she said.

A teachers’ union representative said the state may be biting off more than it can chew, given this month’s fallout between the Department of Education and the second largest school district in the state over the high-profile denial of a charter school. On Capitol Hill there has been more talk of the state bypassing local school districts and taking over the entire approval process for new charters.

“The education reform plate right now is quite full,” said Jerry Winters, chief lobbyist for the Tennessee Education Association, the state’s largest teacher’s union. “To be moving in the direction of trying to take more money from public schools, subsidize wealthy people for private school tuition, it’s definitely moving in the wrong direction.”

Among issues up for debate within the task force are:

  • Should students be eligible for vouchers based on their family’s income, their academic record or the performance of their school or district?
  • Which private schools could students attend? How long would such schools have to be operation to be eligible to accept vouchers? And how would they test students and report their progress to the state?
  • Should the state limit the number of vouchers issued? How many should the state permit?
  • Is there enough time to implement the plan for the fall 2013 school year? And should the program go statewide or launch as a pilot program?

The panel expects to meet again in late October to firm up recommendations to hand to the governor in November. Haslam has said the results of the proposal must show more than an “incremental difference” in education outcomes in the state to win his approval. The governor told reporters Thursday he’s not sure how to measure that, yet.

Fight Over Justices Charges Up Judicial Selection Lawsuit

Parties in a lawsuit challenging how high-ranking Tennessee judges are selected are presently more wrapped up in who will rule on the case than the merits of the case itself.

Gov. Bill Haslam last week appointed three new members to a Special Supreme Court to hear a lawsuit against him challenging the constitutionality of how the state has picked judges over the past four decades. Haslam’s earlier appointees stepped down after John Hay Hooker, a longtime political gadfly behind the lawsuit, pressured them to recuse themselves for having ties to an organization that lobbies against popularly electing judges.

Now, another special justice, W. Morris Kizer, has revealed that he donated to Haslam’s campaigns for Knoxville mayor in 2003 and governor in 2010. Kizer’s household gave $3,000 to Haslam’s gubernatorial campaign, according to campaign records.

Kizer insists his political donations don’t “constitute a basis for disqualification,” but Hooker contends every link is suspect.

“It’s like a football game between the University of Tennessee and Vanderbilt,” said Hooker, an 82-year-old former Democratic Party gubernatorial candidate who today is asking the Special Supreme Court to take up his case. “Do you want the referee to be a graduate from the University of Tennessee or Vanderbilt? That’s a no-no.”

He isn’t the first person to use a football analogy to attempt to influence debate about judicial selection.

In 2011, then-Supreme Court Justice Cornelia Clark tried to convince members of the Tennessee Press Association that electing judges would be just as bad as electing referees for a football game.

Referees would say they will still call a fair game if one team contributed more money to their election campaign than the other, Clark said.

“And I’d say I’d be willing to believe they’re probably going to try to do that,” she said. “But I’m not sure perception would be right.”

Like Clark, the governor openly opposes judicial elections. Haslam maintains that members of his Special Supreme Court may have opinions about whether judges should be popularly elected, but that shouldn’t interfere with their ability to render an impartial judgement. The newest members of the special court are Shelby County criminal court Judge J. Robert Carter Jr., retired East Tennessee U.S. Attorney James R. Dedrick, and Monica N. Warton, chief legal counsel for Regional Medical Center at Memphis.

“If you ask anybody if they’re alive and human, they have an opinion about things,” Haslam said last week before naming the three new members to the panel. “That’s different than having a conflict. I think anybody that we will appoint will understand that difference and will make sure there’s no conflicts.”

Appeals judge Alan Glenn, chairman of the Judicial Ethics Committee, said the governor’s interpretation is correct. The tricky part, he said, is defining what conflicts can “reasonably” be questioned.

“Like defining what’s fairness and what’s beauty, everyone has their own ideas,” he said. “What is reasonably questioned impartiality? Everyone has their own views on it.”

Supreme Court and other appellate judges are appointed by the governor, then face yes-no retention elections every eight years under a policy known as the Tennessee Plan. The Legislature has for the last few years debated whether the practice aligns with the state Constitution, which some say clearly calls for popular elections.

The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

While Hooker awaits the Special Supreme Court’s official decision to take up the case, he is also itching for a chance to officially question justices on whether they can impartially rule on the case, a right he insists he’s given under the state Constitution.

The governor in July picked the initial members of the Special Supreme Court. The state’s five Supreme Court justices recused themselves from hearing the case because they will be directly affected by the ruling.

Political insiders and onlookers are paying close attention. The Tennessee Plan is scheduled to sunset June 30, 2013, when lawmakers will decide whether to renew it.

Lawmakers will also have to decide whether to give final approval to a bill that would amend the Constitution to allow appellate and Supreme Court judges to be appointed by the governor and confirmed by the Legislature. The judges would still face retention elections. If approved by lawmakers, the amendment would go before voters in the 2014 general election.

“It’s an interesting case, I’ll say that. All of us are looking at that closely,” said Lt. Gov. Ron Ramsey, who is also a named defendant. Ramsey has said he believes the Tennessee Plan in its current form is indeed unconstitutional — although he, like the governor, opposes direct judicial elections.