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TN Bar Association Proposes New Judicial Conduct Rules

Press Release from the Tennessee Bar Association, Feb. 24, 2011:

New disqualification and recusal standards, procedure urged

NASHVILLE, Feb. 25, 2011 — New stricter standards and procedures for determining disqualification and recusal of judges, changes in restrictions on campaign activities by judges, and a new prohibition on judges presiding over cases in which they participate in judicial settlement conferences are among the changes to the Code of Judicial Conduct being recommended in a petition filed with the Tennessee Supreme Court today by the Tennessee Bar Association.

The proposed rule changes come as a result of an 18-month long study of the Code of Judicial Conduct undertaken by a task force of judges and lawyers. In its petition, the TBA says one of the reasons for the new recusal and disqualification standards and procedures is the “explosion of contested, big money campaigns for judicial office.” The petition cites a U.S. Supreme Court decision, which found that huge contributions in a West Virginia Supreme Court case had raised questions regarding whether the participation of a judge violated the due process clause. Commenting on the proposed changes, TBA President Sam Elliott said:

“A key role of the Tennessee Bar Association is to continually consider and propose updates and improvements to the various rules that govern the practice of law in the state. The changes to the Code of Judicial Conduct proposed by the task force are the result of the outstanding work of lawyers and judges at the highest level of our profession, and will prove to be a clear guideline to our judges as they fulfill their essential function in our society. The TBA is grateful to those lawyers and judges on the task force who so generously gave their time and talents to this effort.”

The task force was chaired by prominent Chattanooga lawyer Max Bahner with Knoxville lawyer Sarah Sheppeard serving as the Reporter. The group is made up of 13 members with a majority of the panel being judges. The group used the 2007 American Bar Association Model Code of Judicial Conduct as a guide, which Task Force chair Bahner called the “most influential guide for such rules, subject to a states’ distinctive practices.” Twenty-two states have approved revisions as a result of the changes and twenty more have established committees or have published proposed revisions.

The 80- page proposal includes provisions that:

1. Provide greater guidance on judicial disqualification and recusal. Included are factors such as the levels of campaign support for the judge or the judge’s opponent, the timing of the support and independent expenditures.

2. Require compliance with new procedures for motions to determine incompetence, disqualification and recusal.

3. Consistent with recent constitutional decisions, significantly lessen the restrictions on campaign activities while making it clear that campaign committees and judges must fully comply with campaign finance disclosure statutes, and that such activities may lead to disqualification.

4. Include within the provisions related to judges’ families a person with whom another person maintains a household and an intimate relationship other than a person to whom he or she is legally married.

5. Clarify application of certain code provisions to senior judges, part-time judges, continuing part-time judges and temporary judges.

6. Clarify when judges may provide a reference or recommendation.

7. Clarify a judge’s responsibility to report violations of lawyer or judicial ethics.

8. Permit judges, spouses and guests to attend events associated with educational, civic, religious, fraternal and charitable organizations.

9. Limit participation in activities of organizations, which engage in political advocacy in limited subject areas or consistently for one side in lawsuits.

10. Emphasize that judges must perform their duties promptly, as well as competently, diligently and cooperatively.

If the court follows its usual practice in considering such recommendations, the proposal will be published for a period of time for public comment, followed by closer examination of any issues on which there is substantial disagreement.

ABOUT THE TENNESSEE BAR ASSOCIATION

The Tennessee Bar Association (TBA) is the largest professional association in Tennessee with more than 11,000 members. Founded in 1881, the TBA provides opportunities for continuing legal education, professional development and public service. The Young Lawyers Division is comprised of association members age 36 and younger or within the first five years of practice regardless of age. The division is dedicated to helping new lawyers succeed in the profession through mentoring programs, continuing legal education and peer networking, as well as find fulfillment in the practice of law through pro bono legal work and public service projects.

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Featured News Transparency and Elections

TN No Longer an Openness Leader on Financial Disclosures

Advocates for open government in Tennessee are expressing concern about whether Gov. Bill Haslam’s executive order relaxing income disclosure rules portends similar steps away from transparency, but there seems to be little out-and-out outrage over the governor’s move.

“The only thing that bothers me about the executive order is the tone that it sets and the signal that it might send,” said Frank Gibson, executive director of the Tennessee Coalition for Open Government. “He’s not rolling back a law.”

Dick Williams, state chairman of Common Cause in Tennessee, had a similar reaction.

“I hope it’s not an indication of how we’re going to go from here, and I’d like to think it’s not,” Williams said. “But it’s just sad that his very first executive order, just a day or so after being sworn in, he takes a significant step backward.”

One fascinating aspect of the reaction, advocates for openness in government have said, is that the more demanding executive order that Phil Bredesen, Haslam’s predecessor, set as governor went largely unnoticed — until Haslam’s order loosened the requirements.

After being sworn in as the state’s 49th governor Jan. 15, Haslam’s first executive order was to declare that members of the executive branch must follow state law on disclosure, which brings the administration in line with the Legislature. The order means key administration officials including Cabinet members will have to divulge the sources of outside income but not the specific amounts they make. The step rolls back a Bredesen order, which called for disclosure of the amounts.

“Bredesen, to his credit, set a tone of openness by issuing that executive order in the first place,” Gibson said. “So I can’t slam him (Haslam) for doing it, because he’s basically doing what the law is for the Legislature.

“The thing that Bredesen did was far more disclosure than what Congress is required to do. Congress has to report the value of their investments in categories, from $50,000 to half a million dollars, and half a million dollars to a million, and a million to 5 million. So even members of Congress don’t have to report what their actual income is.”

Williams noted that the Haslam step presents a glaring change.

“It sticks out like a sore thumb at being a difference from what had been the precedent,” Williams said. “He (Haslam) is correct that the law doesn’t require it, but it’s kind of one of those things, once you’ve set the precedent, it’s definitely a step backward to not continue it.”

Haslam’s order caught the attention of the nonpartisan Sunlight Foundation, based in Washington, and its policy director, John Wonderlich, called the decision a “stunning disrespect for the role disclosure plays in democracy.”

“Governor Haslam’s executive order flouts the public trust embodied in that disclosure system, and places his personal and political concerns over the public interest and integrity of the very system he was elected to lead,” Wonderlich wrote.

A recurring refrain, however, is a call for a middle-of-the-road approach that would require ranges of income be reported, rather than none.

Robert Stern, president of the Center for Governmental Studies, a Los Angeles-based nonprofit research group, falls into that category.

“I guess my solution is a compromise, which is what we have in California and which I believe is recommended, which is ranges,” said Stern. “Over a thousand dollars. Over $10,000, over $100,000, over $1 million, and at that point who cares? You should have an idea.”

“We want to know what the conflict is and approximately if it’s a big conflict or a little conflict, but we don’t need to know the exact amount of the conflict,” added Stern, whose organization describes itself as promoting “innovative political and media solutions to help individuals participate more effectively in their communities and governments.”

Issue of Income Prominent in Gov’s Race

Common Cause’s Williams said the potential for conflict should be closely watched for department heads such as those in Economic and Community Development and Revenue, not because he has concerns specific to Haslam’s choices for those jobs but because of the nature of the positions.

Haslam named Bill Hagerty, founder and managing director of Hagerty Peterson & Co., a merchant bank and private equity firm, to the post of Economic and Community Development commissioner. Haslam picked Richard Roberts, director of Miller Industries, which makes towing and recovery vehicles, to head the Department of Revenue.

The issue of Haslam’s personal income rose prominently in the 2010 governor’s race, with opponents among Democrats and Republicans insisting that Haslam’s income from his family’s Pilot Corp. presented a conflict of interest. Ironically, one of Haslam’s harshest critics was his current commissioner of Safety, Bill Gibbons.

Gibbons ran against Haslam for the Republican nomination. He dropped out early but not before he proposed a plan for openness in government.

Gibbons, previously the Shelby County district attorney general, hit Haslam hard on the issue during the campaign and said every time the state widens a highway with a lot of commercial traffic Pilot has an interest with its truck stops. He said voters couldn’t know if it was a big conflict or a small conflict because Haslam would not reveal his income from Pilot. Haslam did divulge his income from investments outside Pilot Corp.

Haslam has also announced a blind trust for his holdings, but the trust will not include Pilot holdings or a real estate investment he has outside the state.

Among candidate Gibbons’ detailed plans for openness was a strengthening of disclosure laws by moving beyond the requirement of candidates and officeholders to disclose only the sources of income and require reporting of the amount of income from each source.

An effort to reach Gibbons this week for comment on Haslam’s executive order was unsuccessful.

Haslam consistently refused during the campaign to divulge the amount of his income from Pilot, as first requested by a consortium of the state’s largest newspapers. He reasoned that Tennesseans knew that his family owned Pilot and therefore knew all they needed to know. He has now extended that same principle to other members of his administration, and Haslam used the same consistent line of explanation when he addressed the executive order in a recent press conference as governor.

Deputy Gov. Claude Ramsey reiterated the explanation Haslam has given going back to the campaign.

“To the best of my knowledge the executive order was a follow-up to what he said all over this state to the people of Tennessee,” Ramsey said. “I don’t think the executive order was one period, one comma, different from what he had said for months.”

Haslam Order In Line With Other States’ Rules

Ramsey said to his knowledge there was no survey of what is done in other states to influence the decision.

There is little to suggest Haslam’s order is out of line with other states, although that doesn’t translate into a sparkling record on public disclosure.

The Center for Public Integrity, a journalistic research organization in Washington that promotes improving government openness and accountability, issued a report in 2009 in which Tennessee was among 20 states given a grade of “F” for its disclosure laws. Tennessee was given 57.5 points out of a possible 100, ranking 34th among the 50 states. Only Louisiana, Washington and Hawaii received a grade of “A.”

The report was an update to a report by the Center for Public Integrity issued in 2007. Tennessee received an “F” in that report as well.

Like all the surveys reviewed by TNReport, though, the center’s study focused on laws, not executive orders by governors.

Charts compiled by the Center for Ethics in Government for the National Conference of State Legislatures show a broad range of requirements on disclosure, with several states requiring reporting based on ranges of income.

The Center for Ethics in Government does not summarize its findings like the Center for Public Integrity, but Peggy Kerns, director of the ethics center, said, “I would think that most states do not require disclosure of the actual amount of income, just the source.”

Stern, the Los Angeles researcher, said he believes the work done by the Center for Public Integrity is a good measuring stick and that there has been “not much change at all” since the report was released.

The written report in 2007 did address more closely how state requirements affect governors than the more recent report.

“Requiring them to disclose their private financial ties could reveal possible conflicts of interest,” the 2007 report said. Only Washington received a grade of “A” in that report.

The 2007 study made specific mention that Bredesen, who was wealthy before his election, did not take a paycheck as governor, which put him in the company of then-Gov. Arnold Schwarzenegger of California. Then-Gov. Jon Corzine of New Jersey drew a salary of $1 a year, the report noted. Haslam, like Bredesen, is not accepting a paycheck from the state.

The 2009 report noted that two southern states — Louisiana and Mississippi — made the biggest improvements since the earlier study, and it pointed to Louisiana Gov. Bobby Jindal pushing through an ethics reform package that bolstered requirements for all lawmakers to report their financial interests. That action, the report said, led Louisiana to the top spot in its rankings, with 94.5 points out of 100 in the center’s 43-question survey.