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Gabbing with the Guv

Following the swearing in of Tennessee Education Commissioner Kevin Huffman on Tuesday, Gov. Bill Haslam fielded questions from reporters on a range of issues.

Among them were his views on the Legislature’s work in general this year, whether Tennessee should amend the state constitution to better accommodate the Tennessee Plan, the importance of prioritizing political goals, and his expectation that Bill Hagerty, commissioner of economic and community development, will stay on the job rather than leave for a presidential campaign by former Massachusetts Gov. Mitt Romney.

Hagerty, a Vanderbilt University graduate and founder of Hagerty Peterson & Company merchant bank and private equity firm, served as national finance chairman for the Romney for President campaign in 2007-08. Romney’s Free and Strong America leadership PAC has been taking donations and writing checks. Romney currently leads a poll of potential Republican candidates in the key New Hampshire primary for 2012. The poll results were released Tuesday by Public Policy Polling.

Hagerty has a key role in the Haslam administration, given Haslam’s emphasis on jobs. With Romney looking like a presidential candidate, Haslam was asked Tuesday if he expected to hold onto his economic commissioner.

“Yes, I think we will. When Bill came, we talked about that, that he had obviously been very engaged with Gov. Romney’s last campaign,” Haslam said. “I said, ‘I need you to come and stay for a decent period of time,’ and he understands that. I don’t think there will be an issue. I think he’s committed to staying with us through that period.”

Haslam was asked to assess how the legislative session has gone thus far.

“This is obviously my first one, so it’s hard for me to be able to judge the ebb and flow of how things go,” he said. “But obviously I was really pleased that the tenure bill passed. We look forward to having our charter (schools) initiative addressed as well. Obviously, the budget is a key thing for us. Overall, we’re pleased with how the session is going.”

Lt. Gov. Ron Ramsey has said he is interested in having language in the state constitution changed regarding the election of judges. The state currently operates under the Tennessee Plan, where judges face yes/no retention elections. Critics say the system defies the state constitution, which calls for the popular election of judges. The argument is that the retention elections are not true elections.

Haslam has said he favors the current system but seemed open to the idea of changing the constitution to put it in line with the Tennessee Plan.

“As I understand, what Ron is saying really is something that I have said as well. We need to make the constitution conform to what we’re doing,” Haslam said. “What I’ve heard Ron say is, ‘I’m not for electing judges, but I think the constitution should be clear and match what we do, so let’s bring that up and make sure the language matches what we’re doing.’ And I’m fine with that.”

The Legislature has seen a proposal, SB0620, die that would have established a nullification committee to review all federal laws for their constitutionality and have the the Legislature vote on the laws found by the committee to be unconstitutional. Another failed proposal is the “birther bill,” SB1043, which would have required candidates for president file sworn affidavits with information proving their residency — an attempt to address criticism in some quarters over how President Barack Obama has handled questions about his place of birth.

Haslam has shown no interest in such bills.

“Again, those are issues that we haven’t spent any time on because I don’t think they’re important things for the state to be addressing,” Haslam said. “Legislators can bring up what they want, and they will. I think the fact that neither of those went very far says most of the Legislature agrees that we have some other things we need to be worrying about.

“Ultimately, I think the big issues become the big issues, and they’re the ones that take most of the Legislature’s time debating.”

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Press Releases

Ramsey Tips Deadlocked Committee in Favor of Electing Judges

Press Release from Lt. Gov. Ron Ramsey, R-Blountville, March 29, 2011:

(Nashville) — Lt. Gov. Ron Ramsey today cast the tie-breaking vote to advance a bill requiring the election of all judges in the State of Tennessee, including appellate and Supreme Court justices. The 4 to 4 tie occurred in Tuesday’s Judiciary Committee meeting on Senate Bill 127. Lt. Governor Ramsey broke the tie by voting in favor of the bill.

Ramsey took the step because he believes state constitution currently demands that judges “shall be elected” in the state of Tennessee.

“It is clear that we need judicial reform in Tennessee,” said Ramsey. “I don’t necessarily think that electing judges is best for the state in the long term but the constitution is the constitution and the constitution clearly states that judges shall be elected.”

The state currently operates under the “Tennessee Plan” which allows the governor to appoint judges from a select list of candidates from a nominating commission. Judges then stand for what is called a “retention election” where votes make a yes or no decision on whether a judge keeps their job. While the constitutionality of the plan has been affirmed by the Supreme Court, many legal scholars dispute the ruling.

“My hope is that my actions today will spur those who recognize the need for reform to craft a constitutional judicial solution in an expeditious manner,” Ramsey continued. “Either we change the constitution or we change the Tennessee Plan. Sooner or later, this has to be addressed. I prefer sooner.”

The last time Lt. Gov. Ramsey entered a committee to break a tie was in 2009. Senate Bill 127 moves next to the Senate Finance, Ways, and Means Committee.

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Chief Justice Makes Rounds with Legislators

Tennessee Supreme Court Chief Justice Cornelia Clark said this week she has met with leadership of the Tennessee General Assembly to discuss matters of the courts, but Clark said she is reluctant to share details of those conversations.

Clark has spoken publicly recently about her opposition in general to legislative efforts to make judges run in competitive elections, and to do away with the Tennessee Plan, which has judges face retention elections with a yes-or-no vote. Critics of the Tennessee Plan say they are not true elections. But supporters of the plan, including Clark, say the current system helps keep partisan politics out of the process.

The Tennessee Constitution calls for appellate judges to be elected, and the Tennessee Plan has been found to pass constitutional muster. Clark has likened the election of judges to allowing sports teams to support a slate of referees who will call their games.

Much of Clark’s communications have been about administrative issues of the courts as opposed to matters like electing judges, however.

One member of the Legislature has been critical of Clark publicly weighing in on the election issue. Sen. Mike Bell, R-Riceville, has said that just as legislators should not inject themselves into cases before the court, members of the court should not lobby legislators.

Bell was scheduled for a one-on-one meeting with Clark, and Bell said this week Clark did visit him. But Bell said Clark said she understood how he felt about her position on the Tennessee Plan and they agreed not to bring up legislative issues. They focused instead, he said, on administrative matters.

Bell had told TNReport that he objected to Clark lobbying on legislation, and Clark acknowledged this week that she learned of Bell’s opinion through TNReport. Bell described their meeting as “a very cordial conversation” that lasted 20-30 minutes.

“We stayed away from any proposed legislation,” Bell said. “We talked about some things I had questions about. I brought up just about everything that was brought up in the conversation.”

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Lawmaker Questions Appropriateness of Justices Lobbying Legislators

Sen. Mike Bell, R-Riceville, said Monday he believes it would be improper for members of the Tennessee Supreme Court to lobby the Legislature against efforts to move the state toward the election of Supreme Court judges.

Nevertheless, Bell has a meeting scheduled with Chief Justice Cornelia Clark on the issue later this week.

Clark told a group of journalists last week that efforts in the legislature to pull back from the state’s retention election system are misguided, and she said she has been involved in discussions with lawmakers voicing her objection to the legislation.

Bell has three bills dealing with judicial elections. He wants to see the state revert to where it was before the Tennessee Plan, which currently seats judges, was implemented.

Bell winces when he brings up potential impropriety. But he said in an interview Monday that he felt the need to say what he believed.

“I think it at least borders on improper,” he said. “If they’re up here lobbying to protect the system, I think it’s improper for them to be doing so. This is a legislative matter, not a judicial matter. This is something I believe should be decided by the Legislature. We’re the ones that created it in 1971. If we choose to continue it, change it or do away with it, it should be up to us.

“Just as it would be improper for me to go and tell them how to rule on a specific case, I think it’s improper for them to be involved in this. That’s probably going to to get me some enemies, but that’s what I believe.”

Clark, speaking to a Tennessee Press Association meeting last week, said, “We, and I personally, have had a number of conversations with legislators, and we’ll continue to do that.

“We are engaging in a good dialogue, and there are some good-faith differences of opinion about what the right answer is.”

Bell has three bills, one of which he was still putting the finishing touches on Monday, regarding judicial elections. That last measure — the one he prefers — is one that would essentially wipe the slate clean of the Tennessee Plan and the let the debate begin anew. But he says his motivation is the clear and simple language in the state Constitution that calls for elections of judges.

In Tennessee, a special commission submits names to the governor, who makes the appointments to the bench. After a judge is on the bench, each judge is subject to what is known as a retention election, where citizens vote up or down on whether to retain the judge.

Bell, and many others, believe the retention election process is inconsistent with clear language in the Constitution.

“The judges of the Supreme Court shall be elected by the qualified voters of the State,” the Tennessee Constitution reads.

Bell has another bill that, short of eliminating the retentions plan, calls for the nonpartisan election of Supreme Court judges from five districts across the state that would be drawn by the Legislature. It would also prohibit the candidate from knowing who contributed to a campaign and the amounts of the contributions.

A third bill sponsored by Bell would require that a judge receive 75 percent of the votes in a retention election, as opposed to the current majority requirement. Since the plan was put in place, only one Supreme Court judge, Penny White, has been removed in a retention election.

Bell, who says he is fundamentally a constitutionalist, is in his first year as a member of the Senate, after serving two terms in the House.

“I got interested in this issue when I was first elected to the House, when I found out what the Constitution actually says,” Bell said. “Article 6, Section 3 says judges shall be elected by qualified voters of the state. I think that wording is very simple and understood by anybody.”

He said if that phrase were put before the people of Tennessee, he believes 95 percent of them would interpret it to mean elections like the state has for other offices.

Bell calls the current system “kind of a charade.”

“It’s almost set up to where we’re intentionally keeping voters from knowing anything about the people running,” he said. “They may all be great people. They may deserve to be retained or re-elected, but under the process, we can’t know anything about them.”

The issue centers on concerns that electing judges at the appellate level can unduly politicize the judicial system. A fear exists that judge’s campaigns would begin to mirror typical political campaigns, where conventional political functions like television commercials could influence elections in ways that are not in the interest of justice.

Bell emphasizes that he is not arguing whether such campaigning would occur if open elections were held. He says the state is simply in no position to ignore what the Constitution clearly intends.

But even Bell concedes there could be political ramifications in part of the legislation he has introduced. His bill for establishing five distinct districts could be subject to gerrymandering, he acknowledged. And he said while one of his bills calls for the candidate being unable to know the origins or amounts of campaign contributions, the people should have access to that information. Bell said he has tried to go by models in the trial courts to craft his legislation.

As for requiring approval by 75 percent of voters in order to be retained on the bench, Bell said it should be higher than a simple majority.

“They need a higher standard, a higher bar to cross to be re-elected,” Bell said. “Many states that have similar plans require 66 percent of the vote. I figured I would start at 75.”

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Chief Justice No Fan of Electing Judges

Tennessee Supreme Court Chief Justice Cornelia Clark on Friday criticized efforts to have members of the court chosen through popular elections, but she acknowledged that she has participated in the political process by making political campaign contributions.

Clark addressed a luncheon meeting of the Tennessee Press Association in downtown Nashville and expressed concerns about legislative efforts to elect judges.

“We are worried about these issues,” Clark said. “Partisan election of judges puts them in a very precarious position, even if we don’t want it to.

“There’s not enough money you could pay me, or pay on my behalf, to have me change my mind about an opinion in a case. But I can understand why, if somebody who had given enough money to my campaign, you might worry about that. You might question my sincerity.”

The issue of elections of appellate judges has become a contentious issue, with a push in the Tennessee General Assembly to move the state away from the merit selection process currently in place.

The debate is between those who see an inherent danger in politicizing judicial seats and those who believe in a constitutional requirement of allowing elections.

According to the Tennessee Constitution, “The judges of the Supreme Court shall be elected by the qualified voters of the State.”

The state currently operates under what is known as the Tennessee Plan, which allows the governor to appoint judges from a select list of candidates from a nominating commission. The public can then keep or remove judges through retention elections, which rely on a yes/no vote. The system has been found to pass constitutional muster.

The argument for the current system is that it insulates the judiciary from partisan politics. The argument against it is that the current system is elitist and ignores the right of the people to choose who sits on the bench.

Along the way, issues have risen as to whether judges themselves should be contributing to political campaigns. Speaking to TNReport after her speech Friday, Chief Justice Clark said she could not recall contributing to anyone in the last year, but she said she has contributed to a number of legislative candidates in the past.

She listed Sen. Doug Overbey, R-Maryville, and Sen. Joe Haynes, D-Nashville, as those she has contributed to, as well as U.S. Rep. Marsha Blackburn, a former state senator, and former U.S. Rep. Bart Gordon.

“I have contributed to political campaigns because our current ethics rules allow that,” Clark said. “Those rules have been changed off and on over the years, and I understand some concern has risen about that recently.

“So in the coming year as we are going to consider complete revisions to our rules of ethics, that’s going to be one of the topics we talk about significantly. Judges should not give up their rights. But if there is any concern that our giving to a campaign may suggest a certain outcome in a case then we need to look at that very closely.”

Clark said there has been dialogue between the court and legislature about the election of judges.

“We, and I personally, have had a number of conversations with legislators, and we’ll continue to do that,” Clark said. “We are engaging in a good dialogue, and there are some good-faith differences of opinion about what the right answer is.

“We also understand there are a number of business leaders and others who want to participate in that dialogue and to sort of give their perspective, so we expect that dialogue to continue.”

Clark said she had met just this week with 10 to 12 legislators on the issue and expects those discussions to continue.

Sen. Mike Bell, R-Riceville, has sponsored a bill requiring that Supreme Court justices be elected. His bill would have one Supreme Court justice elected from each of five districts in the state, to be drawn by the General Assembly. It would prohibit judicial candidates from personally seeking or accepting campaign contributions and would prohibit the campaign treasurer from divulging to the candidate the names of donors or the individual amounts of their donations.

Clark used a sports analogy to make her point about politicizing judicial seats. First, she asked the audience if they could identify the names Phil Luckett or Jim Joyce. She explained that Luckett was the instant replay official on the famed Music City Miracle in 1999 when the Tennessee Titans defeated the Buffalo Bills on a last-play lateral pass. She informed the group that Joyce was the baseball umpire who made the call that cost Detroit pitcher Armando Galarraga a perfect game against the Cleveland Indians last season. Joyce later admitted he blew the call.

“Here’s what I want you to remember,” Clark said told her audience. “What would it be like if we elected the officials in our sporting events?

“What if the Titans could run a slate of referees and the Colts could run a slate of referees?”

Then, she said, somebody got to vote, and the outcome was determined by whoever put up the most money and ran the most “great-looking, Super Bowl-like commercials” to elect the referees.

“Let’s say the Titans won,” Clark said. “Their referees would show up on the field. Titans fans might be happy, but I’m not sure the Colts fans would be very happy. I’m sure the referees could say, ‘I take my oath. I’m hired just to administer the rules, and it doesn’t matter if this team spent $5 million or that team spent $4 million. I’m going to call it the right way.’

“I’m not sure the perception would be great.”