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Effort to Legitimize ‘Tennessee Plan’ Hits Dead End

The future of how top judges in Tennessee are assigned to the bench is in limbo now that a plan asking voters to formally endorse the status quo died on Capitol Hill this year.

Despite vocal support from the state’s three most powerful elected Republicans, lawmakers abandoned a plan to run the current judicial selection process by voters. Instead, the Legislature at this time appears to favor giving itself a confirmation role on judicial appointments, as is done at the federal level.

Lawmakers are looking to end debate once and for all about whether the state is following the intent of the Tennessee Constitution, which calls for judicial elections.

The Legislature considered several plans this year, including one that would require popularly electing judges. The only proposal that gained traction was an amendment to establish a new system giving the Legislature the authority to reject judges the governor wants to appoint — an effort that would ultimately need voter approval. The effort to legitimize the state’s current practice — supported by both chambers’ GOP speakers and the governor — failed in the House.

“I voted for both of them to keep them alive so we can try to get something on the ballot on 2014,” said Sen. Mike Bell, R-Riceville, the Government Operations Committee chairman who said he’d prefer popularly electing judges.

“I want to do all I can to put pressure to see that we come up with a Constitutional amendment…(so that) the people have the final say on how we choose our judges,” he said.

Gov. Bill Haslam said he supports the new plan which lets the Legislature approve judicial candidates — although he prefers sticking with the current plan. But the governor unequivocally opposes voters directly electing judges.

Meanwhile, many prominent legislative Republicans, including Lt. Gov. Ron Ramsey and House Majority Leader Gerald McCormick, have said it is clear to them the state Constitution in fact does explicitly require direct and contested judicial elections. And yet they, like Haslam, oppose statewide judicial elections. They instead want to amend the state constitution to erase the seeming disconnect between what the Tennessee Constitution mandates and what the state currently does.

Lawmakers, judges and constitutional scholars have argued for years over whether the yes-no “retention” elections meet the spirit and letter of the Constitution.

The Constitution says, “Judges of the Supreme Court shall be elected by the qualified voters of the state,” and adds that “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.”

The state’s powerful legal establishment likes things the way they are, and argues that as long as lawyers and judges are fine with the system, elected politicians ought to leave it alone.

“We never believed, we still don’t believe, that the Constitution has to be amended,” said Allan Ramsaur, executive director of the Tennessee Bar Association. “They ought to keep that and not be experimenting with other ways of doing it.”

The wheels could come off of the state’s judicial selection machine if lawmakers push too hard for change, said Ramsaur. So far, lawmakers have already shortened the lifespan of the Judicial Nominating Commission which now recommends judges for the bench. The panel is set to disband, by July 1, 2013.

Without the commission, Ramsaur argues, there’s no specific provision for exactly how to seat judges.

Bell says he’ll likely extend the panel one year at time to keep the cogs in the machine moving so long as lawmakers advance the constitutional rewrite. He said, however, that he’s leaving open the option of dissolving the commission should the measure stall.

Haslam, Ramsey and House Speaker Harwell early this year called for lawmakers to constitutionalize the state’s current practice of selecting judges, known as the “Tennessee Plan,” saying the system has a proven track record and the state ought to make sure its guiding document agrees with current practice.

The Tennessee Plan requires the governor appoint Supreme and Appellate court judges from a list of recommendations from the nominating commission. Those judges then face yes-no retention elections to renew their eight-year terms.

Their plan, SJR183, to constitutionally legitimize the current practice passed the Senate 21-9 but never made it to a vote on the House floor.

Instead, lawmakers favored refashioning a portion of the state constitution to resemble the federal practice of picking judges, namely where the President appoints and Senate confirms.

SJR710 lets the governor handpick top judges who then need to be OK’d by the General Assembly. Those judges would then be subject to yes-no retention elections to renew their terms.

The plan passed easily in both chambers, with a 70-27 vote in the House and 22-9 win in the Senate — about two-thirds of both chambers. Haslam says he’s behind the plan, but admits he’s worried giving lawmakers the opportunity to block the governor’s appointments, as is done in Washington to presidential appointments, which can lead to political games.

“In some ways you can say the federal system has worked well. On the other hand, it hadn’t sometimes when you’ve had one party hold up the President’s nomination for purely political reasons or vote against them for purely political reasons,” said Haslam. “In designing how the legislative confirmation process would work, I want to make certain that we have a process that is as free from politics as possible.”

Because the measure seeks to edit the Constitution, lawmakers will need to approve it again with two-thirds majority before the 2014 general election where voters will have the final say. If voters reject the change, Haslam says he wants to continue using the Tennessee Plan without skipping a beat.

Plan to Elect Judges Fails

As the battle brews over how to pick the state’s most powerful judges, plans to make them earn their seat on the bench through popular elections narrowly failed in a House committee Wednesday.

The House Judiciary Committee voted 7-7 on a plan to elect Supreme and appellate court judges, one vote shy of the majority vote necessary to advance the plan in the Legislature.

“I’m disappointed, to say the least,” said bill sponsor Rep. Glen Casada, who contends the current practice flies in the face of the Tennessee Constitution. The constitution says judges of the Supreme, Circuit and Chancery Courts, and other inferior courts “shall be elected by the qualified voters of the State.”

“The constitution governs how we do business and do public policy in the state,” said Casada, R-Franklin. “To be out of compliance is wrong. If you can’t comply with the most basic, how can you trust us to comply with other parts of the law as well?”

The narrow vote shows there is still distinct division in the GOP-run Legislature over the best way to go about choosing who should sit on the bench in the state’s highest courts.

The measure, HB173, would have required high-ranking judges to face popular elections beginning in August 2014 instead of the yes/no retention elections they now face every eight years.

The Senate considered amendments to the state Constitution earlier Wednesday, but isn’t expected to vote on the plans until next week.

SJR183 would allow the General Assembly to solidify the current practice of the governor appointing judges who later face retention elections, called the Tennessee Plan.

SJR710, on the other hand, would require the governor’s judicial appointments to win approval from the General Assembly. Those judges would also face retention elections to renew their terms.

Much of the debate sparks from varying interpretations of the Constitution and whether a “retention election” heeds the call in the state’s guiding document for an “election.”

“Let’s get away from this myth that what we have is not an elected system,” said Allan Ramsaur, executive director of the Tennessee Bar Association. “We do elect judges, we just don’t have contests which lead to partisanship and big money influence.”

Haslam Undecided Whether Court of Judiciary Needs Reform

A panel of state lawmakers is expected to examine the Court of the Judiciary next week. But Gov. Bill Haslam said Friday he’s as yet unsure whether he supports altering the make-up of the appointed panel charged with investigating ethical complaints against Tennessee judges.

The governor told reporters following the swearing in of a criminal appeals court judge in Williamson County Friday that the state’s legislative and judicial branches could both benefit from more and better communication with one another.

“I know there’s a lot of questions in the Legislature about, is it too much of judges reviewing judges reviewing judges. I’ll spend a little bit more time on that before I really have an opinion on that,” Haslam said after the oath was administered to Judge Jeffrey Bivins.

“There are some people in the Legislature that feel like, are we getting adequate oversight? And the judiciary is like, I don’t think every time there’s a complaint there needs to be a public hearing because there’s so many complaints along the way,” Haslam continued. “I actually think it’s one of those that maybe… a little bit more dialogue might help the process on both sides.”

Lawmakers plan to meet Tuesday to examine the Court of the Judiciary which investigates allegations of ethical misconduct among judges.

Reports surfaced in 2009 that the board largely dismissed complaints against judges and kept most disciplinary actions secret, although court officials say that practice is generally necessary to protect judges against unfounded accusations.

Sen. Mae Beavers, a long-time advocate of reorganizing the way the Court works and co-chairwoman of the ad hoc committee reviewing the Court of the Judiciary, said she is mulling the idea of requiring that more laypersons be appointed to the board now full of judges and attorneys.

She is also a fan of electing judges, another contentious issue that promises to surface during next year’s legislative session. Judges are currently appointed in Tennessee by the governor based on a list of recommended candidates.

“There’s been some controversy around the whole judicial selection process,” Haslam said before swearing in Bivins. “From where I sit, I have nothing but good things to say about the judicial selection committee and the process. Every time, I’ve had the good problem having to choose between good men and women to fill a spot. It’s an honor to get to do that.”

The Tennessee Bar Association, like Haslam, is happy with the current set-up for electing judges, said Allan Ramsaur, executive director of the TBA. He plans on attending next week’s hearing, but says the current make-up of the Court of the Judiciary works.

“I think you have to be careful about calling change reform,” he said. “There’s a good balance at present. There are judges and lawyers who understand the judicial process and the limits and constraints that the judges operate under.”