She will wake you up from a snooze in time for your next meeting without ratting you out. She will remind you that tomorrow’s your sister’s birthday. She will locate the nearest Starbucks when you’re roaming unfamiliar turf.
But some things even Siri can’t do. When you are voting today, Siri won’t be able to bring up Back in River City’s Voting Smart guide to remind you of your choices among the 81 judicial candidates appearing on your ballot. Sorry, but Siri’s been banned, baby. Cortana, too. Because way back in 2006, the Shelby County Election Commission realized that camera phones could compromise the secrecy of a voter’s ballot. Cell phones have been off limits while voting ever since.
“The reasoning is that if you can take a picture of your ballot, you can take a picture of someone else’s ballot, and that would violate their right to a secret ballot. I think we all agree, that secrecy of the ballot is an important protection of the rights of individuals to be able to vote without fear of retribution.”
You may take a sample ballot or written notes, however. According to attorney Cara Harr, who is Tennessee’s specialist on HAVA, the Help American Vote Act of 2003:
“Tennessee Code Annotated § 2-12-116 allows each county election commission to promulgate policies regarding the voting process. It is my understanding that the Shelby County Election Commission does have a policy prohibiting cell phones in polling locations . . . Voters are allowed to bring a sample ballot with them inside the polling location to be used by that voter and sample ballots should also be available at every polling location for the voter.”
So be smart and be prepared before you go to the polls today. You can’t use your cell phone, but you can print out a blank sample ballot here and mark your choices before you go.
Earlier this week, Commercial Appeal columnist David Waters took a rather curious position on voter engagement. Since the average voter doesn’t know anything about sitting judges or their opponents, Mr. Waters proposed that we simply eliminate judicial elections and have all judges appointed by the “merit” system. In other words:
The solution to low information voters is simple: disenfranchisement.
If you don’t want to be bothered learning about the candidates, no problem. There are people smarter than you who will choose judges for you.
Relax, have a beer. Watch a reality show.
Even if you have already voted in the August 7 election, it’s both timely and important to think about how judges are selected in Tennessee. In November, voters will decide how appellate and Supreme Court judges will be selected in Tennessee going forward. A new constitutional amendment is proposed to enact a new method of selection, one similar to the process used for federal judges.
The basic question regarding judicial selection is whether to elect or appoint.
Currently, appellate judges (Court of Appeals and Court of Criminal Appeals) and Tennessee Supreme Court judges are appointed under the Tennessee Plan. All other judges are elected. In David Waters’ world, all judges should be appointed under a merit-based system. An alternative mode would be to elect all judges; or to change the mix of which are elected and which appointed. If Amendment #2 is passed in November, appellate and Tennessee Supreme Court judges will be appointed by the governor and subject to ratification by the Tennessee General Assembly.
[The following material is adapted from Voting Smart (Appellate tab). We are posting it here because it applies to both the August 7 and November 4 elections, and some Back in River City followers have had difficulty finding it.]
Our Current System: The Tennessee Plan
Our Tennessee Plan of judicial selection – the system we have been under in some variation for most of the past 45 years – is called a merit system. (We believe “merit” to be a misnomer.) Individual voters do not have the power to choose judges subject to the Tennessee Plan. Instead, appointed commissions of lawyers and judges decide which candidates will make a short list (3-6) to be presented to the governor. The governor makes his selection from the list.
The argument behind so-called merit systems, favored by Democrats and progressives, is that judges and attorneys know better than voters which candidates will make the best judges. Since 1994, Tennessee law has required an appointed, attorney/judge-dominated commission to evaluate the performance of sitting judges subject to the Tennessee plan. In 2009, a new law required the Judicial Performance Evaluation Commission to publish a final report of their findings for the benefit of the voting public.
We find this report to be of very little value to voters. First of all, no sitting judge has ever received a poor performance review. According to an article appearing March 12, 2014 in the Nashville Tennessean,
If the commission recommends against a judge, he or she must face a full-fledged contested election, in theory.
In reality, there has never been a contested election in the two decades the system has been in place. When the commission decides against recommending a judge stay in office, the judge simply retires and the negative evaluation never sees the light of day.
The commission uses multiple sources of detailed, case-specific information to evaluate each judge’s performance. The published report contains numerical performance scores. By law, the published report:
” . . . shall not include any individual record or evaluation, but may include, for each appellate judge, the individual final scores for the survey results.”
The effect of this law is to prevent voters from access to meaningful information about the individual judges’ actual performance. Instead, voters are allowed to know only what the judges’ politically appointed peers will say about them.
(Rule #1: Never allow anything that could embarrass a sitting judge to be published).
The differences in the assigned scores (on a 5-point rating scale) are insignificant. Apparently, all our current appellate judges grew up in Lake Wobegon, because none received a composite score lower than 4 (4.0 and above is considered to mean “above average”). Despite their glorious performances, six of the 20 appellate judges on the ballot failed to receive a unanimous retention vote from the evaluation panel. One (Thomas T. Woodall, Criminal Court of Appeals, Middle Division) barely squeaked by with a 5/4 vote. This is sufficient evidence to us that there are others in the state who could do a better job than Judge Woodall.
WHY WE VOTED “REPLACE”
We at Back in River City voted to replace all of the appellate judges in protest of the current selection system. A merit-based system, by design, puts judicial selection in the hands of whichever political party rules the legislature. Open, contested elections hold judges accountable to voters. It’s that simple.
It is true that elections can politicize the process by bringing in campaign contributions from special (even out-of-state) interests. The key to an accountable judiciary (and any elected office), however, is educated voters who vote their values and opinions as buttressed by facts, not the puffery of political advertising. We believe it is incumbent on all eligible Shelby County citizens to be responsible, thoughtful, informed voters.
The merit system shaping the Aug. 7 judicial elections for appellate judges presupposes that voters hold these beliefs:
- The 20 sitting appellate judges on the ballot are better than any other possible candidates.
- Voters don’t really care about holding individual appellate judges accountable; let their colleagues decide.
- Once elected, appellate judges should stay in office until they die or decide to retire.
- The appointed bodies who vet, nominate and evaluate judges are never influenced by politics.
- The longer an appellate judge holds office, the more effective he/she becomes.
We disagree with each of the above statements. Instead, we believe:
- Appellate judgeships should not be lifetime appointments. An eight-year term is twice what we allow a U.S. President. Term limits could invigorate and protect our highest Tennessee courts from becoming insulated from the lives of the ordinary people who seek justice from them. (“Black Robe Fever”** is an acknowledged, widespread phenomenon).
- There are more lawyers capable of serving on the appellate and Supreme courts than will ever have the opportunity to serve. Why shouldn’t more have the opportunity?
- The citizens of Tennessee will be better served if these positions are considered a public honor rather than a lifetime job. The majesty of the law attaches to our system of ordered liberties, not to black robes and the individuals who don them. Appellate responsibilities are awe-inspiring. If judges held this view, asking the people for more than one term in office would seem presumptuous to them – or at least keep them humble.
- Paradoxically, under a merit system (which should mean that the most meritorious candidates become seated judges), only politically well-connected attorneys and judges make the cut for the short list from which the Governor makes his appointments. This severely limits the number of outstanding candidates who are given the opportunity to serve (as do lengthy tenures on appellate benches).
- Engaged citizens can make good choices when they are allowed access to adequate and pertinent information on judicial performance. Our country’s future demands that we make this happen.
*Judge James F. Holderman, Former Chief ,U.S. District Court of the Northern District of Illinois (2006-2013) defines “Black Robe Fever” this way:
“Black robe fever” is the problem that unfortunately exists within the minds of some judges who have forgotten one or more of the following: their humility, humanity, manners, or civility, or have forgotten what it was like to be a lawyer. They may lack patience, they may lack compassion, or they may lack an appreciation that the power of the law is based on the public’s respect for the law and the fairness with which the law is administered. We judges must always remember we have to earn the honor of being called “Your Honor” every moment of every day in everything we do.”
~ Quoted in The Bencher, July/Aug 2013, Inns of the Court
We believe a better informed, more engaged electorate will make a better Memphis. We created Voting Smart: Your Guide to Shelby Co.’s 2014 Judicial Elections to help you be more informed and confident in your choices. When you vote to “Replace” judges, you are sending a message to Nashville that you want to “Retain” your right to hold judges accountable for their performance on the bench.
The Shelby County Deputy Sheriff’s Association‘s endorsements in the judicial races have been added to candidate backgrounds in Voting Smart: Your Guide to Shelby Co.’s 2014 Judicial Elections.
We’ve also added a link to the Commercial Appeal’s recent investigative piece chastising General Sessions judges Phyllis Gardner, Betty Thomas-Moore and Lonnie Thompson for taking too much time off from the bench.
Several people have asked us if we would rescind our recommendation of Judge Gardner based on this new information. Here’s our take on the issue:
The judges broke no laws, bent no regulations. Judges Gardner and Moore defended themselves by saying they are “entitled” to the time off. Judge Moore (and presumably, Judge Gardner as well) bases her position on personnel policies for City of Memphis employees (see her comments to Back in River City here). Shelby Co.’s Chief Administrative Officer Harvey Kennedy told the CA that elected officials are not subject to specific vacation policies, but take time off at their discretion.
We strongly believe that the black robe is an honor that should be worn with humility and respect for the citizens and taxpayers who award it. To treat a General Sessions judgeship as just another job in city government – with vacation and sick day benefits one can take at will – is a degradation of the role and its responsibility. General Sessions courtrooms are closed four weeks a year and every Friday afternoon. A judge with a deferential attitude, rather than an entitled one, would consider that time as time off, not just a perquisite of scheduling.
The other issue raised by the CA article is the use of unpaid attorneys who agree to sit in as “special judges” when a judge is absent. No matter how principled the parties may be, this practice naturally raises questions about judicial favoritism among litigants and other attorneys. The tradition is not good for our judicial system. It should be used minimally and better alternatives explored.
The Commercial Appeal deserves praise for its recent investigative reporting on both candidates and sitting judges. As for Back in River City, we are holding to our recommendation for another term for Judge Gardner. In our opinion, she is the better of the two candidates for General Sessions Division 2. That said, we hope that the spotlight shone on judges’ time away from their courtrooms will prompt all election winners to use better judgment in their vacation planning.
It’s been great to hear from so many of you this week and to know that Voting Smart has been helpful in your ballot decisions. We have received a rash of emails; Facebook comments; new Likes; and blog comments from new followers, old friends, incumbent judges and judicial candidates.
Judge Betty Thomas Moore, who has held court in General Sessions Div.5 since 1998, asked to respond to opponent Ellen Fite’s allegations that complaints against Judge Moore prompted her decision to run. We alluded to Ms Fite’s comments in our “What We Know” summary on her, with a link to a March 24, 2014 article on MidtownRepublican.com.
The article by Georgeann King said in part:
. . . Fite, who has already sat as a special judge in the court in which she is running, says she “had so many people come to me and ask me to run this year. I thought about running 16 years ago and even 8 years ago.” There have been complaints about the judge who runs the court currently and that spurred her to seek the post.
“Both lawyers and litigants feel abused in there. People complain about her judicial demeanor and that she is often late. The judge has an absentee rate of 27%. She is abusive and yells at people.” . . .
Judge Moore responds (as written):
I appreciate the chance to respond. I appreciate that you personally endorsed Ms. Fite for a number of reasons. I have been an experienced sitting Judge for almost 16 years and she has not; the Bar Poll gave her a few more percentage points than me but I did not go out and solicit votes as my opponent did because I trusted that the lawyers (and candidates) would follow the rules to vote only if you had cases in that court. Unfortunately, that did not happen and as a consequence of the distrust of the outcome of poll, endorsements and e mail have been sent from numerous attorneys and law firms supporting my re election who were appalled at the results. I have over 300 attorneys, and counting, who agreed to be placed on literature. I have done that in the past but chose not to do that this time. I have notes and letters from citizens who come to my court who applaud what I do as a judge, how I run my court room and my fairness and integrity. That is what I am most thankful for. I recognize the trust that the citizens of Shelby County have placed in me. I recognize that I must be accountable with the taxpayers time and money, I too am a taxpayer and therefore am harder on myself. I am at work as required, sometimes having special setting at 7:30 or 8 am to accommodate litigants who work and lawyers who may have court elsewhere, when our court starts at 10 and 1:30. I do not take off a lot of time from work unnecessarily, never have, never will. I have 24 years with the county and would be entitled, as a regular employee, to at least a combined 45 days of sick and annual days. My record shows that my off days have been extremely reasonable. I know that you are aware that this is campaign season and unfortunately, as I believe, in this case, the truth can get stretched, discarded or completely changed around. I am proud to say that I have done a good job as Judge in this court, many of the lawyers and litigants who come into my court agree with that. Everyone may not leave out completely happy, because everyone can’t always get what they came for but they will admit that I know the law, I am fair, I treat folks with respect, I am firm where I need to be, and I am a jurist of integrity. I appreciate that, though your personal endorsement is for my opponent, that your Attorney endorsement recognized me as the most qualified and did endorse me for re election. Thanks again . . .
We are happy to post all (civil) comments and questions from readers and candidates. So far, only one comment has not passed our Back in River City Civility Test (and you know who you are). If you have something to say, it should be helpful to voters and encourage further dialogue. No profanity or ad hominem attacks, please. Your comments can help others, and make our Guide more complete.
Voting Smart: Back in River City’s Guide to Shelby Co.’s 2014 Judicial Elections is now COMPLETE!. We added three more sections:
- Addition to Appellate Courts tab: Analysis and commentary on Tennessee Supreme Court incumbent retention elections
- Section IV: Amendment #2: Selecting Judges (appears on a new tab/page accessed from our home page). This section covers the proposed constitutional amendment on the Nov. 2, 2014 ballot. It will change the way we select judges in our appeals courts and the Tennessee Supreme Court
- Appendix: Tennessee’s Judicial System (appears on a new tab/page named Appx: TN Court System). Here you will find definitions of all courts in the Tennessee system so you can feel less intimidated when you face the lengthy Aug. 7 ballot (also useful for playing Legal Trivia).
We have also changed one of our candidate recommendations. Many of you saw a disturbing article about General Sessions Court Judge Lonnie Thompson in Sunday’s Commercial Appeal. We knew that Judge Thompson had been charged in 2006 in a domestic violence incident. Noting the outstanding ratings Judge Thompson received from our attorney panel and the fact that the charges were dropped, we initially recommended Judge Thompson over newcomer Christian Johnson in the Div. 6 race. After reading the CA account of two more domestic violence incidents (1994 and 2013; all three incidents with separate women), we were forced to reconsider. Even though charges were dropped each time, the appearance of a pattern of conduct is deeply disturbing.
Under normal circumstances, we would not endorse a judicial candidate with a resume as thin as Mr. Johnson’s (he just passed the bar in October 2013). Mr. Johnson is, quite frankly, an unknown quantity. Still, the options here are not terrific. Mr. Johnson worked his way through law school at the University of Memphis as a paralegal, and therefore has more experience than the average new JD. We are more comfortable with Mr. Johnson at this time than we are with Judge Thompson, and he will have our vote in the General Sessions Div. 6 race.
We suggest you consider both candidates very carefully before making your own decision.
The Appellate Courts section of Back in River City’s Voting Smart Guide is now available on the tab marked Appellate Courts on our home page. This is complicated stuff, folks, and we are doing our best to make it clear to all readers.
We still have more to come, including background information on the referendum for three Supreme Court justices and a section we’re calling Politics in Judicial Selection. This section will explain why we are voting to replace all three Supreme Court Justices on the ballot. It will also include links to their individual performance evaluations as rendered by the Tennessee Judicial Performance Commission. Finally, it will give you background you’ll need to navigate the political storm brewing around November’s referendum on a State Constitutional Amendment that will both alter the judicial selection system we’ve used for 20 years (arguably, illegally) and enshrine the concept of “merit selection” rather than contested elections for judges in appellate courts, including the Tennessee Supreme Court.
Watch for these (we hope, FINAL) sections to our Guide on Monday, July 21st.
We are honored, humbled and awed by the response our Voting Smart Guide is receiving. We have received many positive and encouraging from judges, judicial candidates and engaged voters.
Remember that we are happy to answer questions and you are welcome to post your own polite and informed opinions, whether or not they agree with ours.
Early voting has begun at 157 Poplar Ave. You can vote there tomorrow (Saturday) from 10:00 a.m. to 7:00 p.m. All early voting satellite locations will be open from 10:00 a.m. to 7:00 p.m. beginning Monday, July 21st. Click here for a list of early voting locations.
We know that many of you have been waiting for the final sections of Voting Smart: Your Voting Guide to Shelby County’s 2014 Judicial Elections. Yesterday we announced that information and our endorsements for all judicial elections (except the Appellate Court and Tennessee Supreme Court retention referenda) were up on our website and Facebook pages Back in River City and Voting Smart .
We also owe you a weighing in on the Shelby County District Attorney General race.
We are still working on the Appellate/Supremes section. It contains a fairly lengthy history of judicial selection in Tennessee (of questionable interest except to history and political geeks like us) as well as background data on the candidates.
But early voting begins tomorrow, so here’s the bottom line for you Early Birds who just want to know how we’re moving our thumbs.
It’s thumbs down on everyone – Appellates and Supremes – for us.
It may surprise you, but this decision goes beyond any partisan concerns we may have (although they, too, factor in).
Our final analysis of these races will be up posthaste. (I get to have a life again when the final period is in place so I assure you I am motivated!).
As for the District Attorney General’s race, here’s a quick summary:
Amy Weirich was elected with strong bi-partisan support. She has been in office only two years, a fraction of a full eight-year term. She is doing her job well. It would take an extremely strong opponent to justify replacing her. We all know that the contentious Judge Joe Brown doesn’t fit that definition. Enough said. We’re sticking with Amy.
Thanks to everyone who has read and shared the Guide and offered your kind encouragement. We are honored that you find our research and analysis of value. Please continue to spread the word that the Guide exists. We don’t expect everyone to agree with our opinions; our job is to help everyone make more informed and thoughtful decisions.
So, go out and vote to make a better Memphis!