Press Releases

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.


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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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.”

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Multiple Proposals Filed to Reform How TN Picks a Chief Attorney

GOP lawmakers are so eager to alter how the state’s top lawyer is chosen that the real fight in the Legislature this year may not be over whether change is necessary, but what solution is most prudent, affordable and politically doable.

“All I want is somebody who’s more accountable to the voters,” said Sen. Mae Beavers, who for the second year in a row is pushing for the popular election of the attorney general via a constitutional amendment.

So far, Republican lawmakers have pitched three proposals for changing up how Tennesseans get an attorney general, and other bills are rumored.

Among the ideas being batted around are the popular election of the attorney general by the state’s citizenry or an appointment by the Legislature or the governor. Also under consideration is a shifting of power to a solicitor general either elected by voters or hand-picked by lawmakers or the governor, and, finally, granting the governor new powers to seek and deploy specialized legal counsel.

Gov. Bill Haslam has said he’s not convinced turning the attorney general, now appointed by the state’s Supreme Court, into a popularly elected position is a prudent move. Haslam worried the office might be transformed merely into a political training ground for higher office-seekers. Haslam “only half-jokingly” told a Chattanooga Times Free Press reporter he’d prefer to choose the next AG himself.

In fact, some lawmakers, like Rep. Joe Carr, R-Lascassas, think that’s not a bad idea at all and ought to be taken seriously.

Although the attorney general doesn’t have to listen to any of the three branches of government if they ask him to take legal action, he is still constitutionally tucked in under the governor’s purview and should act accordingly, Carr said.

“In a sense, we have a fourth branch of government, and that certainly is not constitutional,” Carr said.

Because Carr believes the state’s top lawyer and the governor should be philosophically on the same page, the second-term Rutherford County lawmaker is introducing a bill granting the governor power to seek special legal counsel to pinch-hit in court for the state if the AG won’t litigate at the chief executive’s bidding.

In any case, lawmakers pushing for change say the current system has at minimum institutionalized a clear conflict of interest that warrants addressing: the state Supreme Court chooses the attorney general, who in turn regularly argues cases before the state’s highest court.

“I’m open to any idea that can fix that,” said Lt. Gov. Ron Ramsey.

His counterpart in the House of Representatives, Speaker Beth Harwell, told TNReport earlier this month she is as yet undecided about whether or in what way to change the attorney general’s selection process.

Another issue fueling the debate is Attorney General Robert Cooper’s refusal last year to join a growing list of states challenging the constitutionality of aspects of the 2010 federal health care package.

Tennessee Tea Party leaders, who are no fans of so-called ObamaCare themselves, have said making the attorney general stand for election in Tennessee is a key legislative priority for them. Barring that, they’ve suggested shifting duties to an elected solicitor general would work as an alternative.

But the state already has a solicitor general, who has an upper management role in the AG’s office, double-checking its cases moving through the legal system and overseeing the drafting of official opinions. And in 2006, then-Attorney General Paul Summers opined that repositioning the solicitor general as the elected legal heavyweight is unconstitutional because those duties were specifically meant for a constitutional officer.

Sen. Stacy Campfield is pitching that idea, anyway.

“I’m for electing just about everybody, really,” said Campfield. “I’d go down to the dog catcher should be elected.”

The Knoxville Republican’s plan to change state law could be passed with a simple majority vote of the Legislature — although some kind of legal challenge down the road wouldn’t seem unlikely in that scenario.

Beavers’ plan, by contrast, would require a lengthy constitutional amendment process. Tennessee’s is one of the most arduous in the United States. It requires lawmakers to approve the measure twice — the second time on a two-thirds majority vote — before placing the question before voters in a gubernatorial election year.

Beefing up the solicitor general’s duties would likely carry a hefty price tag, Sen. Mike Faulk said.

“It’s one more position that we can’t afford,” said the Kingsport Republican, who formerly served as vice chairman of the Tennessee Human Rights Commission. “I’m sure additional staff would be necessary.”

Like Beavers, Faulk is proposing a constitutional amendment that would pave the way for voters to decide the AG question in 2014 at the earliest. His bill would allow for a popularly elected attorney general, however he would require candidates have seven years of state residency before running for election whereas the Beavers bill requires five years.

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Bredesen: TN Execution Methods ‘Humane & Sensible’

Gov. Phil Bredesen said he stands by Tennessee’s lethal injection protocol despite the Tennessee Supreme Court delaying four executions while lower courts determine the constitutionality of an extra step recently added to the procedure.

He says he respects the high court’s decision to allow trial courts 90 days to test whether a new step added during the lethal injection is constitutionally sound, but believes the state is already operating within all confines of the law.

“I’m confident that what we’re doing is humane and sensible and in the main stream, it is certainly what a great many other states do, and that in the end we’ll find that what we’re doing is consistent with the Constitution and the law and that Tennessee will be able to go ahead,” said the governor after a Christmas tree-lighting ceremony on Capitol Hill.

The 90-day delay is the latest legal twist in the execution of Stephen Michael West, a man convicted of torturing, raping and killing a woman and her teenage daughter in 1986.

Monday’s ruling was the latest twist in a recent string of legal battles over the constitutionality of the lethal injection execution practices the state uses. Critics of the method argue that individuals may still be partly conscious after the drugs designed to paralyze breathing and stop the heart are administered, thus causing the inmate undue suffering prior to dying.

Press Releases

TN Supreme Court Names Clark Chief Justice

Press Release from Tennessee Administrative Office of the Courts, Aug. 9, 2010:

NASHVILLE – Justice Cornelia A. Clark will become the second woman in the state’s history to serve as chief justice of the Tennessee Supreme Court when she is sworn into office at 10 a.m. on Sept. 1 at the historic courthouse in Franklin, Tenn.

“I am honored and humbled to be chosen by my colleagues on the Court to serve as chief justice,” Clark said. “I consider it a privilege to serve on the Supreme Court with such talented members who are dedicated to the law and public service. I look forward to working with the Court as we continue our efforts to improve access to justice and strengthen the public’s confidence in the judiciary.”

Chief Justice Janice Holder will administer the oath of office to Clark, who was elected by the Court to serve a two-year term as chief justice. The ceremony will also feature remarks by the other members of the Supreme Court, representatives from the intermediate appellate courts, and judges and clerks from all levels of the judicial branch.

Clark was appointed to the Supreme Court in September 2005 and was elected a full eight-year term in August 2006. Prior to her appointment to the Supreme Court, Clark was appointed director of the Administrative Office of the Courts in May 1999. She held this position until she was appointed to the Supreme Court by Gov. Phil Bredesen.

Clark was appointed circuit court judge of the 21st Judicial District in October 1989 after practicing law for 10 years at Farris, Warfield & Kanaday, now Stites & Harbison. She was elected to a full eight-year term in 1990, and was re-elected in 1998.

The incoming chief justice earned her bachelor’s degree from Vanderbilt University in 1971 and her Master of Arts in Teaching from Harvard University in 1972. Before attending law school, Clark taught high school history and government for four years. In 1979, Clark received her juris doctorate from Vanderbilt University School of Law, where she served as a member of the editorial board for Vanderbilt Law Review.

On June 24, Clark was announced as one of seven Nashville women who will be inducted into the YWCA’s Academy for Women of Achievement. Earlier this year, she was named Appellate Judge of the Year by the Southeastern Chapters of the American Board of Trial Advocates. In 2005, Clark received the Williamson County Bar Association’s inaugural Liberty Bell Award for promoting a better understanding for the rule of law and encouraging civic resopnsibility.

Clark is a former board member of the Marion Griffith Chapter of Lawyers’ Association for Women, the Nashville Bar Association and Goodwill Industries of Middle Tennessee. She is a past president of the YWCA of Nashville and founding member of the Tennessee Lawyers Association for Women. Clark currently serves on the board of directors of the United Methodist Publishing House.

Clark is a native of Franklin, where her family has lived for eight generations. An active member of the community, Clark served as Franklin City Attorney and as a board member of the Williamson County-Franklin Chamber of Commerce. Clark is a life-long member of First United Methodist Church in Franklin, where she has previously served on the Board of Trustees and as chair of the Administrative Board and the Site Selection and Building Committee.