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TN Forum: Retention Campaign Mostly Funded by Lobbyists, Judges, Lawyers

Press release from The Tennessee Forum; August 1, 2014:

NASHVILLE — According to the most recent financial disclosures available at the Tennessee Registry of Elections website, Tennessee’s liberal Supreme Court is relying almost exclusively on lobbyists, judges and lawyers for their campaign cash. Nearly 70% of the Supreme Court’s coordinated campaign contributions during the most recent reporting period came from the legal community.

“Connie Clark, Sharon Lee and Gary Wade are clearly relying on their buddies on the bench and lawyers who must appear before them to fund their campaign,” said Susan Kaestner of the Tennessee Forum. “Accepting, much less soliciting, cash from lawyers who may have to practice in your court brings up a whole host of ethical dilemmas.”

“These lawyers were either trying to curry favor or felt intimidated into giving,” said Kaestner. “Nothing good can come from either of those scenarios.”

“I find it deeply concerning that there are at least two lobbyists on these disclosures. It is against the law for lobbyists to give to gubernatorial or legislative candidates. If you are a judge trying to remain truly independent, the last thing you want is to be seen cozying up to a lobbyist. Special interest money handed over straight from lobbyists to sitting justices has no place in our Supreme Court.”

“This is a campaign that is funded by trial lawyers and conducted by Obama operatives,” stated Kaestner. “Neither this court nor its campaign represents the average Tennessean in any way, shape or form.”

Each member of the court had an overwhelming majority of their campaign dollars come from the legal community during the most recent reporting period. Sharon Lee received the highest dollar amount at $73,780.00 which amounted to 71.55% of her contributions. Connie Clark’s total lawyer contributions clocked in at $55,685 or 70.19% and Gary Wade received 63.78% of his donations from lawyers which amounted to $53,239.

Altogether the Supreme Court coordinated campaign received $182,704 from lawyers, judges or lobbyists. That’s 68.7% of the total contributions taken in.

At least two people currently registered to lobby in Tennessee appear on the disclosures. Emily Ogden gave $250 to Sharon Lee and Candy Toler gave $100 to Gary Wade.

Tennessee Code Annotated 3-6-304(j) states: “No lobbyist shall offer or make any campaign contribution, including any in-kind contribution, to or on behalf of the governor or any member of the general assembly or any candidate for the office of governor, state senator or state representative.”

Haslam Appoints 3 Judges to Workers Comp Appeals Board

Press release from the Office of Tennessee Gov. Bill Haslam; July 23, 2014:

 NASHVILLE – Tennessee Gov. Bill Haslam has appointed three Workers’ Compensation Appeals Board judges, all effective August 1.

The appointees are Marshall Davidson, 50, of Goodlettsville, who will have a six-year initial term; David Hensley, 60, of Chattanooga, who will begin with a four-year term; and Tim Conner, 47, of Knoxville, who will have a two-year initial term.

“I am pleased to make these appointments, and Tennessee will see a workers’ compensation system that operates with clarity and fairness,” Haslam said. “These are important positions in our new workers’ compensation system, and I am grateful for their willingness to serve.”

The workers’ compensation appeals board reviews interlocutory and final orders entered by workers compensation judges.

Davidson has been a staff attorney for the Tennessee Supreme Court since 1992. He was an associate at King & Ballow in Nashville from 1991-1992; a judicial clerk for Chief Justice Frank F. Drowota III from 1990-1991; associate at Burger, Fly & McFarlin in Murfreesboro from 1989-1990; and a judicial clerk for the Hon. Houston Goddard of the Tennessee Court of Appeals in Knoxville from 1988-1989. Davidson has been a faculty member at the Nashville School of Law since 1992. He and his wife, Salena, have three children, Marshall, Natalie and Erin.

“I am honored to accept Governor Haslam’s appointment to the Workers’ Compensation Appeals Board,” Davidson said. “I have thoroughly enjoyed working as a staff attorney with the Tennessee Supreme Court for more than two decades and have had the great privilege of learning from 17 different justices what being a complete and effective appellate judge entails. I sincerely appreciate the Governor’s confidence in me and am excited to continue serving the state in this new role.”

Hensley has been with Franklin Cooper & Marcus in Chattanooga since 2004. He was with Milligan, Barry, Hensley & Evans from 1981-2003 and was a clerk for the Hon. Herschel P. Franks of the Tennessee Court of Appeals from 1979-1980. Hensley and his wife, Dianne, have two daughters, Laurel and Caroline.

“I want to express my appreciation to Governor Haslam for the appointment and for the confidence he places in me by selecting me to serve on the Workers’ Compensation Appeals Board,” Hensley said. “I look forward to serving the people of Tennessee to the best of my skill and ability.”

Conner has been at the firm Leitner, Williams, Dooley & Napolitan since 1992, first as an associate attorney and as a member since 1997. He has been an adjunct professor at the University of Tennessee College of Law since 2013. Conner and his wife, Stephanie, have two daughters, Emily and Erin.

“I wish to thank Governor Haslam for this opportunity to serve the employees and employers of Tennessee, and I look forward to working with my colleagues on the Appeals Board,” Conner said.

Legislation Requiring Drug Testing of Judges Proposed

Press release from the Tennessee Senate Republican Caucus; November 15, 2013:

NASHVILLE, Tenn. — State Senator Randy McNally (R-Oak Ridge) and Representative Ryan Haynes (R-Knoxville) said today they will introduce legislation which calls for drug testing all Tennessee judges. McNally made the announcement after meeting yesterday with Knox County Prosecutor Leland Price and the families of Channon Christian and Chris Newsom. Christian and Newsom were raped, tortured and murdered by Lemaricus Davidson, Letalvis Cobbins, George Thomas and Vanessa Coleman seven years ago.

“For a family to have to go through one trial where it involves the torturous murder of their loved one is far too painful for anyone to endure,” said Senator McNally. “But, to have to go through two trials is inconceivable and inexcusable. This legislation addresses this so that no one will have to endure this kind of lengthy and excruciatingly painful court process again due to drug abuse by a judge.”

The families of Newsome and Christian had to endure two painful trials as a result of the misconduct of Judge Richard Baumgartner, who pleaded guilty to illegally taking narcotics during the first trial of the convicted murderers in which he presided. As a result of Baumgartner’s plea, the four defendants who had previously been found guilty, were retried and convicted again.

“I think it’s important that our citizens have confidence in our justice system,” said Representative Haynes. “It is pretty clear after what these two families have gone through that there are issues that need to be addressed.”

McNally said he also plans to introduce legislation which provides for harsher punishment for ethical misconduct by officers of the court that lie about crime victims in order to advance their case.

“Attorney are officers of the court and should not be allowed to lie in order to advance their case at the expense of the victim,” added McNally. “To do so amounts to a second crime against the victims and their families and should be treated as such.”

McNally said both pieces of legislation are still in the drafting stages.

“I am appalled at what these victims and their families endured during these trials,” added McNally. “We must make sure this never happens again.”

McNally is the Chairman of the Senate Finance Committee and represents Senate District 5 in the Tennessee State Senate, which encompasses Anderson and Loudon Counties and portions of Knox County. Haynes is Chairman of the State Government Committee and represents portions of Knox County in the Tennessee House of Representatives.

Plan to Constitutionally Formalize TN’s Judicial Selection Practice Met with Early Skepticism

Tennessee’s most powerful elected leaders want to amend the state Constitution to validate the current and, to some at least, controversial method of appointing high-level state judges.

But some majority-party legislators aren’t so sure that’s a good idea — or that it’ll fly with voters.

Flanked by House Speaker Beth Harwell and Lt. Gov. Ron Ramsey, Gov. Bill Haslam announced Wednesday he’ll press lawmakers to pass a resolution asking voters to approve language to the state Constitution enshrining Tennessee’s present selection practice for judges on the Tennessee Supreme Court, Court of Appeals and Court of Criminal Appeals.

“I believe the current process has worked well during my time in office, and I’ve been pleased with both the quality of candidates and the process for choosing them,” said Tennessee’s Republican governor. “The judiciary is the third and equal branch of government, and we are here to make this recommendation because we believe it is important for our Constitution to clearly reflect the reality of how we select judges in Tennessee.”

If the measure is approved this year — and again in the next legislative session by a two-thirds majority vote in both the House and the Senate — voters would see the constitutional-amendment question on the 2014 general election ballot.

Currently, judges are appointed by the governor, whose choices for the bench are limited to a slate of candidates provided by a selection commission. Those judges, who serve eight-year terms, are subject to yes/no “retention” elections as their first term expires.

But even though that system has been formally ruled constitutional, and is strongly supported among the state’s legal establishment, many lawmakers have trouble getting over the nagging feeling that it really doesn’t gel with the clear wording of the Tennessee Constitution, which states, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” The state government’s foundational document also declares, “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.”

“Our current method of choosing judges is a very good system, but it is not constitutional,” Ramsey said Wednesday.

Speaker Harwell said she, too, supports the so-called “Tennessee Plan,” but has “serious concerns about the constitutionality of the plan at present.”

“I also respect the previous decisions of the courts, which have determined otherwise,” added Harwell, a Nashville Republican. “As the governor stated today, clarity is certainly needed.”

Rep. Glen Casada, a Republican from Franklin and a leading proponent in the Legislature of voters choosing who sits on the Supreme Court and appellate courts, was among lawmakers to express reservations Wednesday about what Haslam and the two speakers are proposing.

Casada said it seems to him elementary and unambiguous that the Constitution requires competitive judicial elections, and not merely an up-or-down vote on a judge well after he or she has been deciding cases.

Casada said he’ll be pushing a direct-election bill for judges this session. He said he’s not opposed to the idea of Tennessee voters getting their say on the current plan in the 2014 election, as proposed by Haslam, Harwell and Ramsey, but believes the electorate ought first to get an opportunity to see what a statewide judicial election would look like.

“We need to go ahead and put it into the code that the judges are elected by the people in a contested election, like the Constitution currently says they should be,” said Casada, who chairs the House Health and Human Resources Committee. If Tennesseans don’t like what they see after that, then they could adopt the plan proposed by Harwell, Ramsey and Haslam, he said.

Vance Dennis, a Republican who serves as secretary of the House Judiciary Committee, said he’s skeptical at this time that the proposal to amend the Constitution will win the two-thirds legislative majorities necessary to ever even get on the ballot.

Dennis, an attorney from Savannah, isn’t a supporter of direct judicial elections. But he said it is clear the system used now is constitutionally suspect in the minds of many.

“Legally, the current plan has been found to be constitutional by the Supreme Court. Lots of folks disagree with that; lots of folks believe that the way that was done was not entirely appropriate,” said Dennis. “It is the law of the land, so what we are doing is legal. But it really doesn’t meet my definition of what an election is.”

Government Operations Committee Chairman Mike Bell, R-Riceville, another supporter of giving voters a greater direct voice in choosing judges, said he harbors “serious doubts” a majority of Tennesseans can be convinced the existing system is the best option available.

Nevertheless, Bell, who has also sponsored a direction-election bill, said he’s willing to stand down and let the governor and speakers pursue their chosen course.

Lt. Gov. Ramsey acknowledged during Wednesday’s press conference that there’s an apparent preference within the GOP “of electing everything, so to speak.” He said, however, that he, Harwell and the governor will embark upon a “sales process” to bring doubtful voters and politicians around.

“To have someone spend multimillion dollars to get elected statewide probably won’t get to where we want to be, anyway,” said Ramsey.

Ramsey said he wants to see “conservative judges who interpret the law and not make the law” assigned to the Supreme Court and appellate courts. So long as Tennessee has “a governor who  appoints people who think that way,” the current system is best for achieving that aim, he said.

Asked to speculate on what would happen if voters ultimately reject the proposed constitutional amendment, Gov. Haslam said he “would still be of the opinion that doing it the way we do now is the best system.”

Leftovers on Menu for New Legislative Year

Republicans cleaned a lot of bills off their plate in their first year controlling the General Assembly and the governor’s office, but they built up a pile of bills they were saving for later.

Lawmakers say they plan to get down to business right away after returning to Nashville Jan. 10 in hopes of adjourning in late April to begin campaign season. But until then, they’ll have a roughly $30 billion budget to haggle over, new bills to debate and old ones to decide whether they’re worth passing before the election.

Guns on Campus, In Employee Parking Lots

Lawmakers talked about but never passed a number of gun bills proposed last year, including letting handgun carry permit holders lock their weapons inside their car while at work, HB2021, which made it to the House floor but never came up for a vote. Another bill, HB2016, would let college faculty and staff carry guns on campus, although that measure never made it out of committee. Legislative leaders on both sides of the aisle say they expect to see those issues introduced but probably sidelined this year. “Being an election year, I don’t see leadership letting that come to the surface,” said Sen. Bill Ketron, the Senate Republican Caucus Chairman from Murfreesboro.

Drug-Testing Unemployed, Welfare Recipients 

There’s a movement afoot to drug-test Tennesseans collecting public assistance. Two versions of the proposal were introduced early last year, SB48 and SB652, that would have focused on people collecting welfare. Both bills were immediately shelved in 2011, but Lt. Gov. Ron Ramsey is breathing new life into the idea with an eye on people collecting unemployment benefits and worker’s compensation. “I don’t think, again, that we need to be supporting that lifestyle with government money. I’m very much for that and I think you’ll see that passed this session.”

Income Tax Ban

This bill may have been left behind last Spring, but it’s expected to pass come 2012. The Senate OK’d a resolution, SJR221, asking voters to clearly ban an income tax by rewriting a portion of the Constitution. The legislation was held back in the House on the last few days of session. Lawmakers expect it will be one of the first they take up come January, but tax reform advocates plan to continue fighting for an income tax in exchange for lower food taxes. Debate over this bill is far from over — it would need a two-thirds vote in the 2013-14 General Assembly to get on the ballot.

Illegal Immigration

Republican lawmakers rallied to copycat Arizona’s illegal immigration bill and require drivers license exams be taken in English, but those bills never moved. In the midst of debate, another immigration bill filed that session fell just under the radar. HB1379 would require that governments check for proof of citizenship before issuing entitlements like TennCare, food stamps or unemployment benefits. GOP leaders say they’ll pick up this one and run with it and probably leave the others behind. “We’ve always wanted to ensure Tennessee wasn’t a magnet for illegal aliens,” said Rep. Debra Maggart, House Republican Caucus Chairwoman.

Picking Judges

Lawmakers kicked around the idea of changing how judges are selected, contending the current practice of the governor selecting judges who are later subject to retention elections is not in line with the state Constitution. “I think almost everyone agrees that’s a bad idea. I just don’t think everyone’s agreed on what is a good idea, yet,” said House GOP Leader Gerald McCormick. Democrats generally side with the Supreme Court, which has upheld the current system. One bill that remains from last year, SJR183, would ask voters to constitutionalize merit-based appointments. Other proposals have since popped up, like SJR475 which would require changing the Constitution to require the Senate OK the governor’s appointees.

Democrat’s Job Bills

Although they’re outnumbered, Democrats plan to take another stab at passing a stack of jobs bills that never got out of committee last year, such as calling for a small business tax holiday and giving tax credits to new entreprenuers. “We’re going to try again,” said House Democrat Leader Craig Fitzhugh, D-Ripley. “None of the jobs bills passed and none of them got out of committee but we’re going to have another go at it.” The same goes for Senate Democrats, said the chamber’s Democratic vice chairman, Andy Berke. “That’s really where we should begin 2012 in the legislature rather than most of the issues that have been named as priorities so far”

Wine in Supermarkets

This perennial bill doesn’t fall into any of the caucus’ priority lists but has become a staple piece of legislation to expect every year. SB316 seeks to allow certain retail food stores to sell wine instead of just beer. It would also let liquor stores sell items like cork screws and mixers. Last session, the bill never got out of committee. Advocates for wine in grocery stores say their new strategy is to convince the Legislature to let locals decide if they want wine in grocery stores through voter referendums, although legislative leaders say they haven’t heard any serious talk that the bill has momentum to pass this time around.

How to Pick Judges? Issue Remains Politically Unsettled in TN

Gov. Bill Haslam knows he doesn’t want Tennessee Supreme Court and appeals court judges to be selected by voters. But he’s unwilling to say if he believes an unbiased reading of the Tennessee Constitution backs him up on that.

“Two or three times the Supreme Court has said it is. Others have different opinions. I don’t know that I’m the legal authority on that. Again, I can tell you what I think is the best way to do it,” Haslam told reporters after giving the keynote address at the Jobs4TN conference in Nashville last week.

The governor may want to dodge the question of constitutionality that continues nagging at the “Tennessee Plan,” but it is of central concern in a debate that could unfold in the General Assembly in 2012. The GOP is to some degree split on the issue of whether it’s wise to put Tennessee voters back in charge of electing high-level judges, but there’s a consensus among Republican lawmakers that the state’s guiding document, under its current wording, mandates that judicial selection occur in just that fashion.

According to the Tennessee Constitution, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” Judges on the “inferior courts,” according to the state’s constitution, “shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

It also says the governor, or any other constitutionally recognized government official, must “take an oath to support the Constitution of this state.”

Currently, the governor chooses from a slate of judges approved by the Judicial Nominating Commission to serve on the Supreme Court, the Court of Appeals and Court of Criminal Appeals. The judges face retention elections within two years of that appointment, then join the rest of the judicial community in unopposed yes-no retention elections that happen in a regular eight-year cycle. Trial court judges face contested elections. The next major retention election is in 2014.

One such judge is Jeff Bivins, who Haslam appointed to the Court of Criminal Appeals earlier this month. The governor will also have to appoint a replacement for the late Criminal Appeals Judge J.C. McLin. Both Bivins and McLin’s successor will face their first retention election in August of 2012, even though they’ll hear and make rulings on cases before then.

The seeming disconnect between direct judicial elections and so-called “merit selection” by the state’s legal and political establishment is an issue that’s garnered much pro-and-con debate before, and it is again — both in Tennessee and nationally.

The Tennessee Legislature asked voters back in 1978 to give a constitutional stamp of approval on their system of combining judicial appointments and retention elections. Voters rejected that plan — although that particular issue wasn’t the only one before them on the ballot question they faced.

“There’s some concern that if they try it again, voters will reject it again,” said Brian Fitzpatrick, a Vanderbilt University law school professor who favors judicial elections.

“I think there is a sense among voters of liking contested elections, because they’d have a lot of control over who’s on the courts,” he told TNReport this week.

Across the country, eight of 22 states with merit selection considered switching to election-based practices or editing their merit selection laws this year, according to Justice at Stake, a Washington-based organization that favors trying to keep money out of how judges are selected.

The issue will be on the Tennessee Republican legislative agenda next year as well. Top-level GOP lawmakers say they want to start the ball rolling to ask Tennessee voters to rewrite the state constitution to reflect the current selection process. Meanwhile, another faction of Republicans is pushing for all judges to face the same kind of elections lawmakers do.

Haslam said he’s fine with the Legislature attempting to rewrite parts of the state constitution to condone the so-called Tennessee Plan, which was established by the Democratically controlled state Legislature in 1971.

Redrafting some of the state Constitution’s judicial selection language is the expressed preference of Lt. Gov. Ron Ramsey, R-Blountville. He says the Tennessee Plan is blatantly unconstitutional. The second most powerful majority-party lawmaker in the House of Representatives, Chattanooga Republican Gerald McCormick, agrees — and yet he, too, opposes reverting to the system the Tennessee Constitution “so clearly states” should be the practice.

“If we’re going to have a constitution we need to live by it, and if there are some faults in it, we need to change it — and I think this is one of those cases,” McCormick told TNReport.

The Tennessee Bar Association stands by previous Supreme Court opinions that say the current structure is constitutional, according to Executive Director Allan Ramsaur. Further spelling that out in the Constitution is “unnecessary,” he said. The bar association would likely nonetheless back that effort, if that’s the direction the Legislature wants to go, Ramsaur added.

Push comes to shove, though, Haslam said his office will be vocal next year in saying that judges should not be subjected to popular elections. Supreme Court Chief Justice Cornelia Clark has also lobbied against electing judges.

“I don’t think we should elect judges, and that will be a place where I’ll let those views be known if we get there,” Haslam told reporters Sept. 22 in Nashville.

In fact, Haslam took some of the credit earlier this year at a Tennessee Judicial Conference in Chattanooga for derailing the push to elect judges during the 2011 session of the General Assembly.

Last legislative session, lawmakers mulled whether to change the method for selecting judges to a popular election or to ask voters to OK revising the constitution to clarify that judges can be appointed then submitted to retention elections.

That constitutional amendment would need General Assembly approval next year, then a two-thirds majority vote in favor in the 2013 or 2014 Legislative session. The governor’s endorsement is not required for constitutional rewrites.

The Tennessee Judicial Nominating Commission is scheduled to dissolve in 2013, though a bill to extend the commission is expected to be filed by early next year. Without the commission, the “Tennessee Plan” would no longer function in its current manner.

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.”