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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.

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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.

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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.