published Sunday, June 30th, 2013

Disorder in the court: With no panel to nominate, filling judge vacancies open to question

Bill Haslam
Bill Haslam
Photo by Associated Press /Chattanooga Times Free Press.

NASHVILLE — With the Tennessee Judicial Nominating Commission expiring at midnight today, its members on Saturday wrapped up a three-day meeting marathon and forwarded the last list of nominees to Gov. Bill Haslam for filling three upcoming Court of Appeals vacancies in 2014.

What happens next to the state's merit-selection system for screening and recommending applicants for appellate and trial court judges is anyone's guess.

There's a long-simmering dispute over the constitutionality of Tennessee's system of appointing appellate judges. Judges appointed by the governor from the commission's recommendations run every eight years in yes/no retention elections rather than competitive races, as trial court judges do. Opponents say that curtails voter choice.

The GOP-led Legislature failed to extend the 17-member commission last session. Lawmakers don't return until January, and it's unclear what will happen if there's an appellate or trial court vacancy in the meantime.

"I don't think the governor can appoint on his own, but I haven't done a lot of research on it," said Nashville attorney Tom Lawless, the nomination commission chairman. "I have a feeling there's going to be some type of Band-Aid put on it until the Legislature reconvenes next year."

Chattanooga attorney Chris Clem, commission vice chairman, said he's spoken with Senate Speaker Ron Ramsey and top House officials.

"I think everybody's kind of in a consensus that it ought to be reconstituted in January," he said. "You don't need a Band-Aid. Even these three we're doing now, they [retiring judges] actually don't step down until Aug. 31, 2014."

The three vacancies will be in the Criminal Court of Appeals in East Tennessee and the Courts of Appeals in Middle and West Tennessee. The nominating commission has sent Haslam two sets of three-person panels from which to choose replacements.

Also, state Supreme Court Justice Janice Holder announced last week that she is retiring and will not seek retention in the 2014 election.

Clem believes the Legislature will re-form the commission before Holder's position comes open. And if any other vacancies come up, he said, there are plenty of retired judges who can fill the gap.

Haslam spokeswoman Alexia Poe declined last week to address speculation that Haslam might reconstitute the commission through an executive order. In an email, Poe said the governor "is currently looking at what potential next steps might be."

Meanwhile, Vanderbilt University law professor Brian Fitzpatrick said Haslam has authority under a 2009 law to name trial and appellate court judges on his own if he doesn't get a list from the commission. Fitzpatrick's analysis was commissioned by the Federalist Society, a national group of conservative attorneys, scholars, law students and others.

Critics of the retention system known as the Tennessee Plan, including long-time political warhorse John Jay Hooker, say it violates Article VI, Section 3, of the Tennessee Constitution.

That article states that "the judges of the Supreme Court shall be elected by the qualified voters of the state." Hooker and others say that clearly means traditional elections.

Hooker filed suit to block the nominations. Last week, a Davidson County Circuit Court judge denied Hooker's demand for an injunction.

The system has been upheld by two special Supreme Court decisions. Proponents say it has spared Tennessee the ugly, hugely expensive elections fueled by special interest money often seen in states such as Alabama and Kentucky.

Sen. Mike Bell, R-Riceville, believes the Tennessee Plan is unconstitutional, and he's wary of the list of recommended candidates generated by the expiring nominating commission.

"I think the statute says the resignation is to be an impending resignation, and I don't see how a resignation that's still a year off meets the definition of impending," Bell said.

"Also, I think there's serious questions whether a person choosing not to run for retention creates a vacancy."

In the meantime, there's yet another bubble in the simmering dispute.

Lawmakers who let the Judicial Nomination Committee expire also gave final approval last session to a proposed constitutional amendment on the November 2014 ballot.

The amendment allows the governor to appoint appellate and Supreme Court judges, with legislative approval, but it keeps retention elections for them every eight years.

Contact staff writer Andy Sher at asher@timesfree press.com or 615-255-0550.

about Andy Sher...

Andy Sher is a Nashville-based staff writer covering Tennessee state government and politics for the Times Free Press. A Washington correspondent from 1999-2005 for the Times Free Press, Andy previously headed up state Capitol coverage for The Chattanooga Times, worked as a state Capitol reporter for The Nashville Banner and was a contributor to The Tennessee Journal, among other publications. Andy worked for 17 years at The Chattanooga Times covering police, health care, county government, ...

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