This is the third in a series of articles about key races and issues in the November 4, 2014 election. Back in River City is covering the four constitutional amendments, Memphis municipal ordinance #5512, and three key races. Early voting has already begun, and continues until October 30. A sample ballot can be found here.
Of the four Tennessee Senate races on the ballot, the incumbents in Senatorial Districts 31 (Republican Brian Kelsey) and 33 (Democrat Reginald Tate) are uncontested.
The candidates for Tennessee Senate Districts 29 and 30 are starkly different in their backgrounds, experience, political ideology, stated platforms, and abilities to elevate Memphis’ standing in the Tennessee General Assembly.
Tennessee Senatorial District 29
For the first time in nearly 40 years, come January, a member of the Ford political dynasty will no longer represent Memphis in Senate District 29. In 2005, John Ford resigned from the seat he held for 31 years, facing indictment on federal bribery charges in the FBI sting Operation Tennessee Waltz. John Ford’s younger sister, Ophelia Ford, ran to fill the seat, winning by a suspect 13 votes over Republican Terry Roland. When numerous voting improprieties were found (implicating poll workers but not Ms. Ford), the Tennessee Senate voided the election. Ms. Ford filed federal suit and was awarded the seat. According to Wikipedia, her term of office was characterized by “outrageous opinions.” In 2007, she was accused of drunken assault by a Nashville cab driver.
District 29 includes portions of both North and South Memphis, including Republican-dominated Millington and Democrat-dominated Whitehaven; parts of Frayser, Uptown, Mud Island, and parts of Downtown. In the last legislative session, District 29 was one of only seven seats filled by Democrats in the 33-district Tennessee Senate.
Lee Harris is a Memphis City Councilman and FedEx professor at the University of Memphis School of Law. Councilman Harris easily defeated Ms. Ford and two other challengers in August’s Democrat Party primary, winning 42% of the vote to Ricky Dixon’s 28% and Ms Ford’s 27%. Herman Sawyer was a non-player with two percent of the votes. (Total vote count was 24,766.)
Councilman Harris is a native Memphian and product of Memphis City Schools. After graduating from Overton High School, he attended Morehouse College on full scholarship, graduating in 2000. After earning his law degree from Yale in 2003, he became an associate at the highly respected Memphis law firm Baker, Donelson, Bearman, Caldwell & Berkowitz. That same year, he began teaching at Cecil C. Humphreys School of Law at the University of Memphis, where he was granted tenure in 2009. He currently holds the endowed FedEx Professorship of Law.
Councilman Harris was elected to the Memphis City Council in 2011. As Councilman, Lee Harris has concentrated his efforts on improving parks, neighborhoods, and public safety. According to his campaign website, Councilman Harris was a “leader in the fight” for the 2012 city ordinance protecting workers from discrimination based on sexual orientation and gender identity. He currently chairs the Council’s budget committee.
Councilman Harris’ honors and awards include being named 2013 Public Official of the Year Award by the Association of Social Workers, West Tennessee and Man of Excellence by the Tri-State Defender. He was awarded the Victorian Village Historic Preservation Award in 2012, and was one of three Tennessee elected officials named by the NewDEAL national network as a New Deal Leader and pro-growth progressive. He is endorsed by several current and former leaders of the Shelby Co. Democratic Party, Memphis City Council colleagues Myron Lowery, Jim Strickland, and Harold Collins; Communications Workers of America; and Roby Williams, president of the Black Business Association of Memphis.
Councilman Harris has been actively engaged in community and civic organizations including the Frayser Exchange Club, Urban Arts Commission and the Goodwill Homes Community Services Agency. His wife, Alena Allen, is an associate law professor at the University of Memphis. The couple have two young children.
Unlike his opponent Jim Finney, Councilman Harris does not state his platform or key issues on his campaign website. In a rather astonishing error (or overstatement of confidence), Councilman Harris’ Wikipedia page states, “In 2014 he was elected to the Tennessee Senate replacing Ophelia Ford.”
Longtime Memphian James R. “Jim” Finney is Councilman Harris’ Republican challenger. Mr. Finney trounced Anthony D. Herron, Jr. in the August 2014 Republican Primary with 82% of the vote (3,793 cast).
Mr. Finney is a retired Naval Chief Petty Officer, entrepreneur and small business owner. A native of Massachusetts, he spent 24 years in active service to the U.S. Navy. He was stationed in Millington when he retired from Naval duty in 1979. Mr. Finney holds business degrees from State Technical Institute (now Southwest Tennessee Community College) and the University of Memphis. Prior to founding Metro Legal Process, Inc. in 1995, Mr. Finney was an associate real estate broker and investor in Shelby County and surrounding areas.
A graduate of the Memphis Police Department’s Citizens’ Police Academy, Mr. Finney is also a Goodwill Police Ambassador with the South Precinct. He is rated 86% by the National Rifle Association Political Victory Fund. His professional memberships include the National Federation of Independent Business, Memphis Bar Association (ADR section), and both the Tennessee and National Associations of Professional Process Servers. He is President of St. Vincent DePaul IC Conference, an organization dedicated to serving the poor and suffering through one-on-one assistance; a 4th Degree Knights of Columbus; and a member of Immaculate Conception Church. His wife, Virginia Miles Finney, is a native Memphian. They have eight children, eight grandchildren, and three great grandchildren.
- Will advocate for a retirement home for veterans of West Tennessee
- Will hold quarterly Town Hall meetings
- Will advocate to bring Industry to Shelby County
- Will advocate for improved educational opportunities
- Will be all-inclusive to the people of District 29
Senate District 30
District 30 was held by Jim Kyle from 1983 until August 2014, when he won the race for Chancellor for Chancery Part 2 of Tennessee’s 30th Judicial District. Two years of his term remained when he decided to run for judicial office. Judge Kyle did not resign from his senatorial office until his election to Chancery Court, preventing prospective candidates from filing for the office and following standard election procedures. State law required Shelby County’s Republican and Democrat Parties to each select a nominee to be placed on the November 4th ballot.
Shelby Co. Democratics chose Judge Kyle’s popular and politically astute wife Sara Kyle to run for the remainder of his term. The Republican Party nominated familiar candidate Dr. George Flinn, who was defeated by Sen. Lamar Alexander in Tennessee’s August 2014 Republican primary race for U.S. Senate.
District 30 is a classic case of gerrymandering. It includes parts of Frayser, Raleigh, Evergreen-Vollentine, part of Cooper-Young (Cooper is dividing line between Districts 29 and 30), a bit of Downtown (along Danny Thomas), and a long finger reaching into a sliver of East Memphis past 240 to include Jim and Sara Kyle’s home in Kirby Woods. See Map
Attorney Sara Kyle was nominated for the Tennessee Regulatory Authority (TRA) by legendary Democratic political leader and Speaker of the Tennessee House of Representatives Jimmy Naifeh in 1996. She continued to serve until March, 2013, a year before her third six-year term would expire. Mrs. Kyle resigned in protest of cost-cutting actions by Gov. Haslam and the Tennessee General Assembly that replaced TRA’s full-time, four-member board with a panel of five part-time members and an executive director. Prior to her TRA service, Mrs. Kyle was a public defender and was elected Memphis City Court Judge in 1991, serving three years before she resigned to become a candidate for the TRA (then called the Public Service Commission).
Mrs. Kyle was born in upper East Tennessee. She obtained her undergraduate degree from Austin Peay State University and was an elementary school teacher before earning a law degree from Nashville School of Law. She is a member of one of Tennessee’s most famous political families, the niece of former Governor Frank Clement and former state senator Annabelle Clement O’Brien.
In accepting the nomination of the Shelby Co. Democrat Party, Mrs. Kyle outlined a simple campaign platform. “The very first thing I want to do is beat the Republican,” she said, followed by “jobs, jobs, jobs.”
Native Memphian George Flinn, M.D. is a well known radiologist and media mogul who has demonstrated persistence and passion to serve his city and state in the political arena, often against long odds and using his own funds. Dr. Flinn ran unsuccessfully for mayor of Memphis in 2002 in a field of 25 candidates. He was elected to the Shelby County Board of Commissioners in 2004 and served until 2010, when he attempted to unseat Eighth District Congressman Steve Fincher. Two years later he ran against Rep. Steve Cohen in the Ninth Congressional District. Earlier this year, Dr. Flinn ran for U.S. Senate against Sen. Lamar Alexander, losing to Sen. Alexander in August’s Republican Primary. The following month, he was named to represent Shelby County Republicans in the Tennessee Senate race for District 30.
Dr. Flinn was born in Memphis and attended both Central and East High Schools. He earned his undergraduate degree in electrical engineering at the University of Mississippi and a medical degree in radiology at the University of Tennessee. He received a presidential appointment to serve at the U.S. Public Health Service. In his early days as an electrical engineer, Dr. Flinn did research on x-rays emitted from the cathode ray tubes in television sets. That interest expanded to the medical application of radio waves and radiology and his pursuit of a medical degree in radiology. Dr. Flinn participated in the development of color ultrasound imaging, and currently holds several patents related to ultrasound technology. Upon returning to Memphis, Dr. Flinn opened several outpatient radiology clinics and pioneered the use of teleradiology in the area. He later invested in broadcast media. Flinn Broadcasting Corporation currently holds more than 40 radio and television stations.
Dr. Flinn’s Congressional campaign in 2012 focused on jobs, controlling government spending, and “common sense” healthcare solutions. He made his “patient-centered” health care plan, an alternative to Obamacare, the focal point of his U.S. Senate race earlier this year. He also came out against Common Core.
Dr. Flinn’s values are as reliably traditional as Sara Kyle’s are progressive. The choice between the candidates would seem to be clear cut, depending on your own views. Regardless of your ideological bent or party affiliation, however, there is more to think about in this election.
Tennessee’s Senate has 33 members. At the end of the last legislative session, its makeup was 26 Republicans, six Democrats, and one vacancy. Eighteen Senate seats will be filled in this election. Of those, ten incumbents are unopposed (one Democrat and nine Republicans). Four Democrat incumbents chose not to run for reelection. If every Democrat running for Tennessee Senate won, the 33-seat chamber would comprise no more than 10 Democrats.
The Tennessee House is similarly dominated by Republicans. All 99 seats are up for reelection, with 44 Republicans and 15 Democrats unopposed. Ballotpedia ranks only 10 of the 59 challenged races as even mildly competitive. If all ten of those races were won by Democrats, the party would still lose two seats, for a 74-25 split.
What does this mean for Memphis? It means that, like it or not, the extended era (roughly 175 years) of Democratic rule in Tennessee politics is over for the foreseeable future. We are deeply entrenched in a cycle of conservatism, a backlash against the liberal policies that drove Tennessee to its lowest ranking for State Quality of Life (SQOL) in 2004 (40th of 50 states, according to Ballotpedia). Tennessee’s latest SQOL Ballotpedia ranking (2012, when Republicans held the governorship and the majority of both legislative chambers) was 21st among 50.
Memphis is in critical need of help from state government, and for some years has been considered by the majority of the Tennessee General Assembly as something between a wayward stepchild and a toxic waste dump. As long as Republicans hold the reins of power in Nashville, sending Democrat representatives to the TGA is arguably an exercise in futility, unless those Democrats have exceedingly strong bi-partisan ties and the ability to gain the ears of Lt. Gov. Ron Ramsey and Gov. Bill Haslam.
Politician Sara Kyle, Ms. “My-Top-Priority-Is-Beating-the-Republican-in-This-Race,” is unlikely to win influence and votes for Memphis on the Hill in Nashville. Lee Harris is well thought of as an up-and-comer in Memphis politics, but his brand of Democrat Party progressivism will not be equally effective in Nashville. Jim Finney and Dr. George Flinn are stalwart conservatives who have demonstrated their love for Memphis and its people. They can use the next four years to earn Memphis greater support among our state legislators, and exercise real influence in decisions affecting our city’s future.
We urge voters in Districts 29 and 30 to vote for the candidate who can do the best job for our city and the state. We believe those candidates are Jim Finney and Dr. George Flinn. Even if you are a Democrat or independent who normally leans left and votes for Democrats, consider whether that makes sense in the current environment.
This is the second in a series of posts about key races and issues on the November 4, 2014 ballot. Back in River City will cover the four amendments to the Tennessee constitution, three important races, and proposed Memphis ordinance #5512.
Amendment Two on the November 4th ballot (early voting begins today and runs through October 30) will change the way Tennesseans elect state Supreme Court and appellate justices. The new plan is a “Modified Federal Plan,” and is similar to the process used to elect federal judges. Under the new plan, the governor will appoint justices subject to confirmation by the Tennessee General Assembly (TGA). Legislators will have 60 days to confirm or reject the appointment. Justices appointed under this plan will continue to be subject to retention elections every eight years. In a retention election, all voters vote “yes” or “no” to keep a judge in office.
How Does Amendment Two Change the Current System?
Under the prior system known as the Tennessee Plan, the governor made appointments from a list generated by an appointed panel, typically dominated by attorneys and representatives of professional legal associations. Constituents voted sitting justices up or down in retention elections every eight years.
Why Is a Constitutional Amendment Needed?
For two reasons:
1. Tennessee’s constitution states:
The judges of the Supreme Court shall be elected by the qualified voters of the state.
In 1971, however, a “merit selection” (gubernatorial appointment) plan passed by the TGA ended contested elections for appellate and Supreme Court justices and replaced them with retention elections. In 1974, an infamous political deal (see Political History below) restored open elections for Tennessee Supreme Court (TSC) justices, but kept the merit system in place for state appellate judges. Twenty years later, the Tennessee Plan was enacted, which brought Supreme Court justices back under the merit system plan.
The Tennessee Plan has been challenged frequently as unconstitutional. Each time, a special TSC has been appointed to hear the issue. Each time, the Court has ruled that the system of gubernatorial appointment + retention referenda every eight years is legally equivalent to contested elections. To end these challenges, the TGA believes the Tennessee Constitution must be amended to enshrine a merit system into law.
2. The appointed body (Judicial Nominating Commission) invested with the authority to present judicial nominees to the Governor no longer exists. It expired on July 1, 2013 due to Tennessee’s sunset law. Since that time, Gov. Bill Haslam has used a judicial commission he set up by executive order to vet and recommend potential appointees.
Amendment Two will allow the people of Tennessee to decide if they want to continue with a merit system of judicial election.
For 117 years prior to 1971, any qualified attorney in Tennessee could (conceivably) run for an appellate judgeship, including a place on the TSC. Every eligible voter had a voice in how state laws were upheld and interpreted. In the 1970’s, however, progressives in numerous state legislatures, including Tennessee, voted in merit-based plans, variations of the Missouri Plan.
According to Wikipedia, 16 states currently appoint and retain/reject state supreme court justices under a Missouri-type plan. Ten states use a plan similar to the Modified Federal Plan that Amendment Two proposes. South Carolina’s and Virginia’s legislatures elect their state supreme court justices. Twenty-two states openly elect supreme court justices (such elections are partisan in seven states, non-partisan in 15).
Arguments for Amendment Two (Merit Plan Selection)
Proponents of merit plans (including Missouri-type plans and federal-type plans like that proposed in Amendment Two) argue that contested elections inject politics into the courtroom. Elections require campaigns. Campaigns cost money. Raising money can lead to big donations by special interest groups. Corruption and undue influence, therefore, (the argument goes) is inevitable.
Advocates believe that under merit plans, judges are appointed due to their professional merits, not their political connections. Nominations are made by non-partisan panels primarily composed of legal professionals who are more capable than lay citizens to evaluate the qualifications of individual judicial candidates.
In a joint op-ed in the Tennessean, former Gov. Phil Bredesen and former U.S. Senator Fred Thompson said that individual voters would have sufficient input under the new plan by voting for the governor, who will make the TSC appointments; by voting for our state senators and representatives, who will confirm or reject the appointments; and by voting to retain or replace the justices in elections held every eight years.
Yes on Two supporters also believe that the proposed new modified federal system is a better and more democratic system than the one it replaces. There is no provision in the Amendment for a judicial nominating body to present names to the governor. Such politically appointed panels have been criticized in the past for being dominated by trial attorneys and other special interests. How, then, would nominees be identified? The governor alone would have the power to decide. He could make an independent choice, or he could (as he has done in the past 16 months) create a new nominating body (and decide who sits on it) by executive order.
Arguments Against Amendment Two (Open Elections)
“ The real truth behind Amendment 2 is the belief that the Governor is able to pick better judges than the public. This is nothing less than an argument against self-government, and a slap in the face of the Governor’s own supporters. If the people are qualified to elect the Governor, why aren’t the voters who supported him equally qualified to elect the Supreme Court, and other appellate courts? The answer is, ‘Of course, they are.’
We believe a court system of elected judges is a better court system than appointed judges. One has only to look at the conflict, confusion, and lack of accountability to the public that is clearly evident in the Federal court system where all judges are appointed. We believe most Tennesseans agree that our system of electing judges is far superior to the way they do things in Washington. So, our message is simple: Don’t give up the right to vote. Protect the Constitution. Vote No on 2!”
Elbert Walton, a former Missouri State legislator and lawyer who is also an African American, has argued that his state’s merit plan of judicial selection limits opportunities for blacks to attain high level judgeships.
“It is unfair that lawyers elect judges . . . It disenfranchises people and it especially disenfranchises black people.”
The Wall Street Journal wrote in 2007,
“If the recent slugfests have proven anything, it’s that Missouri’s courts are every bit as hung up in politics as they are in other states. The difference is that in Missouri the process happens behind closed doors.”
Vanderbilt law professor Brian T. Fitzpatrick wrote in the Missouri Law Review,
“ . . . I am skeptical that merit selection removes politics from judicial selection. Rather, merit selection may simply move the politics of judicial selection into closer alignment with the ideological preferences of the bar.”
The restoration of open, contested elections in Tennessee would hold judges accountable to the people by causing them to face opponents every eight years. Prior to July 2014, sitting appellate and TSC judges were evaluated by an appointed Judicial Performance Evaluation Commission. In recent years, this body was required to release judicial performance evaluations to newspapers across Tennessee. The problem with this system of “accountability” was that sitting judges never received a negative review. If a judge’s performance was poor, he or she was told privately and allowed to “retire” before the evaluation was released. In the history of the merit system in Tennessee, only one judge has ever been removed in a retention election.
In contested elections, judges’ voting records are more fully examined. Their judicial philosophies are debated. In today’s deeply divided society, judges’ beliefs regarding the interpretation of law matters a great deal. Some judges hold to a originalist interpretation of laws and constitutions (that is, what “reasonable persons” at the time of adoption believed they meant). Others view a federal or state constitution as a “living document” that can change with the times.
Judicial philosophies affect our daily lives. They shape the culture of our state. They can extend or limit our liberties. A notable example of applying “living document” judicial philosophy is the 2000 Tennessee Supreme Court decision in Planned Parenthood v. Sundquist. In that case, the TSC “found” the same right to privacy (including abortion) that the U.S. Supreme Court found in Roe v. Wade in 1973. As a result (which Back in River City noted in our recent post on Amendment One), Tennessee’s abortion restrictions were struck down. Unless Amendment One is passed, our legislature cannot impose even the most basic, common sense regulations on abortion procedures.
Only when sitting and prospective candidates are forced to participate in contested elections do voters have the opportunity to select judges according to their performance, qualifications, adherence to legal precedents, and legal philosophy. In elections, judges are held accountable for their performance. Bad judges and those who rule in ways inconsistent with the views and values of the people’s majority can be replaced.
Who Should Hold the Power?
There is widespread, bipartisan support for passage of Amendment Two, including many bar associations, legal firms, chambers of commerce, major news media, and Memphis Mayor AC Wharton. (Ballotpedia reports of the top five contributors to the Yes on Two campaign, four are major Tennessee law firms.)
Whichever system you believe ensures a better judiciary, however, don’t fall for the fiction that either one takes politics out of the mix. Politics has always been the mother’s milk of judicial selection in Tennessee, and always will be. The principal argument is whether the power to choose comes from the political party in power or the majority of those who care enough to vote. Even then, if one party dominates statewide politics, decisions behind closed doors can determine whose name appears on the ballot. The only way to ensure that the people’s choices reign supreme in supreme court races is if an open nomination process is implemented along with an open election process.
In a piece appearing in the Knoxville News Sentinel, former State Attorney General Paul Summers (who also served as a judge on the Criminal Court of Appeals) pulled back Oz’s curtain.
“Back when we had partisan elections for the judges of the appellate courts, they were in theory elected by hundreds of thousands of Tennesseans. In truth, they were selected by a handful of party officials in Nashville in January every eight years.”
In other words, the Democratic Party’s State Executive Committee in Nashville decided which candidates’ names would appear on statewide ballots. General Summers recalled the 1990 elections, when all five Supreme Court justices were up for re-election. Two of them stepped aside, according to Politifact, “reportedly after failing to gather enough political support among party activists on the Democrat Executive Committee.” The Committee’s slate of five candidates were the only ones appearing on the ballot.
In an interview with Politifact, General Summers cited a 1977 speech by Court of Appeals Judge C. S. Carney to the Tennessee Constitutional Convention. Judge Carney reportedly claimed,
“there had been no exceptions to the rule of the Democratic Executive Committee picking Supreme Court justices since 1910.”
What Happens if Amendment Two Fails?
Any of the four amendments could fail if it does not receive enough Yes votes, or if it does not receive enough TOTAL votes. Confused? Stay with me.
Passage of the four constitutional amendments on the November 4 ballot is tied to the number of people who vote in the gubernatorial election. To pass, an amendment must receive Yes votes equal to 50 percent of the total number of people who in the governor’s race, plus one more vote.
500,000 total people vote in the governor’s race (who they vote for is irrelevant in this calculation). For any amendment to pass, it must receive 250,001 YES votes (50% plus one).
So, if 200,000 people vote Yes on Amendment Two and 25,000 people vote No, the amendment fails, because the amendment received fewer than the necessary 250.001 votes.
Okay, so if Amendment Two should fail, how will appellate and TSC judges be seated? The answer is:
Certainly, the Tennessee General Assembly and Gov. Haslam would receive a strong political message. The TGA would have to decide how to act on the voice of the people (although, if the amendment were to fail from insufficient votes cast, that voice might not be considered very loud). Subject to the opinion of newly appointed Attorney General Herbert Slatery, TGA could allow the current merit system to stand, or it might need to draft new legislation. The existing problem of operating a judicial election system vulnerable to repeated constitutional challenges would remain (John Jay Hooker would love this).
Republican legislators do not believe that the political will exists within the TGA to re-instate public election of appellate and TSC justices. If voters were to trounce Amendment Two in high numbers, things would get very interesting in the next legislative session.
How Is Back in River City Voting?
Eddie Settles of Back in River City has been speaking against Amendment Two before civic and political groups. In September, he debated Sen. Brian Kelsey (sponsor of Amendment Two in the Tennessee Senate) before the Cordova Republicans Club. Eddie is a staunch Republican, but on this issue he stands against the mainstream of party leaders. He says,
“Amendment Two is not a partisan issue, but a populist issue. It’s about preserving our voting rights. It’s about rethinking the whole matter of who should serve as judges on our highest courts, and who should decide on whether a judicial candidate is qualified. Those who oppose open elections for judges are basically saying that the people aren’t smart enough to make those decisions. If we had open elections and an open nomination process, we could be assured of being able to vet the candidates and make sitting judges accountable.
When Back in River City published a detailed voting guide for the August (2014) judicial elections, thousands of Shelby County voters thanked us for providing information they could not find elsewhere. We took that as proof that people care about judicial elections. They want specific information on candidates in order to make sound voting decisions. Until we have open elections, the major Tennessee news outlets will have no incentive to provide such information and hold judges accountable.”
As for me, I will admit that Eddie changed my mind on this issue. I realized that merit selection is one of those “progressive” ideas that sound good on paper, but is thwarted in the real world by politics and power grabs. We can make the system better only if we demand a process that allows the people to vet, vote on, and hold judges accountable. The corollary is to engage and inform all eligible voters so that they aren’t intimidated by their responsibilities nor swayed by self-serving political ads and special interests’ propaganda.
We’re voting No on Two. We hope you will, too.
JUDICIAL SELECTION in TENNESSEE: A POLITICAL HISTORY
The following timeline highlights the political machinations in Tennessee’s judicial selection process over the years.
- In 1854, a constitutional amendment was passed by the Tennessee General Assembly (TGA) changing the method of judicial selection from legislative appointment to popular election. Tennessee judges were elected for the next 117 years. Any qualifying attorney could (and did) run for any judgeship, including membership on the Tennessee Supreme Court. (During Reconstruction, the Governor appointed judges under federal oversight.)
- In 1971, the first Republican governor in Tennessee for 61 years – Winfield Dunn – was elected. That same year, the TGA passed a modified version of the Missouri Plan, which determined that judges would be selected by a “merit” process. In this plan, all appellate judges and Supreme Court justices would be appointed by the Governor from a list vetted and and presented by an Appellate Court Nominating Commission. Judges would be subject to “retention elections” after each eight-year term. In a retention election (or referendum), voters cast a Yes vote to retain the judge. A No vote required the Governor to replace the judge. Other states had been adopting similar plans, held by progressives to be a better path to an “independent” (non-partisan) judiciary than popular elections. (Note: Governor Dunn has since stated that he regrets signing the merit plan into law.)
- With a Republican governor in office, the state political machinery (run by Democrats since Reconstruction) was nervous about losing control. Gov. Dunn would have the opportunity to appoint five new (potentially all Republican) justices to the Supreme Court in 1974. (Appointments occur when a judgeship is vacated anytime during an eight-year judicial term.) An all-out political war erupted between the two parties.
- In 1973, the Tennessee’s modified Missouri Plan met its first constitutional challenge. The Democrat-appointed Supreme Court ruled it constitutional, despite there never being a constitutional amendment permitting a change from mandated popular elections.
- In 1974, in a then-notorious deal made between Gov. Dunn and (Democrat) House Speaker Ned McWherter, popular election of Supreme Court justices was restored by TGA legislation. Only appellate judges were subject to retention elections.
- For 20 years after Gov. Dunn’s term ended in 1974, the de facto nominating commission became the State Democratic Executive Committee. (Technically, both parties’ Executive Committees could have submitted lists of nominees. The Republican Party’s Executive Committee seldom bothered, however, since the statewide voting base of Republicans was so small that their nominees never made it beyond the pipe dream stage.)
- Tennessee’s last constitutional convention was held in 1977. Tennessee voters approved 12 of 13 amendments on the ballot. Voters rejected an amendment that would legitimize in the State Constitution the merit system of judicial selection.
- In 1994, the TGA voted in the Tennessee Plan. The Tennessee Plan reinstated the merit system for appellate and Supreme Court positions. Candidates for these slots would be offered for gubernatorial appointment by an appointed nominating commission. Judges would be subject to eight-year retention elections by popular referendum.
The new plan provided for an appointed Judicial Performance Evaluation Commission. The commission was required to conduct objective reviews of each judge and to publish their findings for the benefit of voters. If the Commission did not recommend a judge’s reappointment, that judge was subject to a contested retention referendum with additional names on the ballot.
- Under the 1994 version of a “non-partisan judiciary” plan, the State (Party) Executive Committees would no longer serve as the nominating bodies. The newly designed, 20-member Judicial Selection Commission, however, was dominated by attorneys with special (typically progressive/liberal) interests, including three members each from the Tennessee-based associations representing trial lawyers, criminal defense lawyers, district attorneys, and three from the Tennessee Bar Association. Five members were attorneys uninvolved with Criminal Defense or Personal Injury practices, and three members were non-attorneys.
- In the 20 years the Tennessee Plan has been in place, no judges have received recommendations for replacement. As pointed out in a 2014 Knoxnews.com article,
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.
- Only one, Supreme Court Justice Penny White, has been removed (1996). Justice White had been highly rated by the Commission, but voters objected to her stance in a high profile capital murder case, which led to the overturning of a death sentence.
- Two more lawsuits challenging the constitutionality of the Tennessee Plan (specifically, the retention referendums) were filed in 1997-1998. A specially appointed Tennessee Supreme Court upheld the plan in both cases.
- In 2009, a slightly altered judicial evaluation commission was incarnated by the TGA to reduce the perception (or reality) of liberal bias. A nine-member Judicial Performance Evaluation Commission was appointed by a newly created Judicial Council, the Lt. Governor and the Speaker of the House. (The Judicial Council was primarily composed of sitting judges representing Tennessee courts of all levels.) The new Commission was required to publish a final report for the benefit of voters prior to retention referenda. The report, however,
“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 being, that voters would not have any meaningful information about the individual judges’ actual performance, including their work ethic, objectivity and fair-mindedness, communication skills, character – all of those criteria that legal organizations including the Tennessee Bar Association say we should use to select judges. In other words, the voters are allowed to know only what their carefully, politically appointed peers say about them.
- 2012: Legendary Democratic politician and three-time Tennessee gubernatorial candidate John Jay Hooker filed his seventh lawsuit calling the Tennessee Plan unconstitutional.
- Gov. Haslam, a supporter of the Tennessee Plan, appointed a Special Supreme Court to hear the case on appeal from a lower court. The Special Court upheld the Tennessee Plan. (A Nooga.com article noted that two of the Court’s five members had conflicts of interest.)
- Also in 2012, the two bodies necessary to execute the Tennessee Plan (Judicial Selection Commission and Judicial Performance Evaluation Commission) were set to expire on June 30. The legislature extended the Commissions’ terms for one year (June 30, 2013), forcing the constitutional issue to be resolved by referendum.
- 2014: Amendment 2 is placed on the ballot for the November 2 elections.
Sources: Commercial Appeal, Eagle Forum, and others.
This is the first in a series of posts on Shelby County’s November 4, 2014 election. Back in River City will cover the four proposed amendments to Tennessee’s constitution and several key races on the ballot. Voting on constitutional amendments is often tricky, because people who frame arguments for and against such measures are tricky themselves. Some political strategists figure, if voters are sufficiently confused by the arguments presented, they will likely vote “No” to keep the status quo rather than take a chance on passing something they don’t understand.
The debate on Amendment One is a good example of this theory at work. Here is the Amendment as it appears on the ballot:
Proposed Constitutional Amendment No. 1
for the November 4, 2014 General Election Ballot
Shall Article I, of the Constitution of Tennessee be amended by adding the following language as a new, appropriately designated section: Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.
Tennesseans for the Preservation of Personal Privacy (TPPP), a political advocacy group opposing the amendment, kicked off their statewide campaign in May 2014 by publishing an ad headed Vote No on the Tennessee Taliban Amendment. The ad included the above cartoon along with arguments equating Tennessee legislators with the Taliban “who control women.” The Chattanooga Times-Free Press and Knoxville Sentinel ran the full ad. The Commercial Appeal and Nashville’s Tennessean ran the ad without the accompanying cartoon.
The Vote Yes on One organization has a very different take on the impact of adding Amendment One to Tennessee’s constitution.
What an endearing picture! Who could be the against the protection of sweet, curly-headed children? No wonder some voters are confused.
Let’s ignore the attempts at passionate persuasion and boil the issue down to the basic facts.
The central argument posed against Amendment One by TPPP is that women have the right to “run their own lives,” which includes making their own decisions about abortion. Their ad warns,
“the ultimate intent is so the Tennessee legislature can control reproductive decisions for all women, including birth control, in vitro fertilization (IVF) and legal abortion.”
Wait a minute. Roe v. Wade, anyone? Planned Parenthood v. Sundquist?
Would Amendment One really take away the right to legal abortion in Tennessee?
Absolutely not. Nothing in Amendment One changes access to abortion in Tennessee. Current law stays in place.
But, doesn’t the law limit the right to abortion in “circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother”?
No. What the amendment says is that, in the future, elected state representatives and elected state senators could choose to pass legislation regarding abortion, just as they can choose to pass legislation on any other issue before them.
If Amendment One doesn’t change the current law, why do we need it?
Because in 2000, Planned Parenthood Association of Tennessee v. Don Sundquist, Governor of Tennessee found a “fundamental right to privacy” (which includes the right to abortion) in the Tennessee Constitution that is broader than federal law. The Court struck down as unconstitutional several Tennessee statutes placing limits on abortion and protecting abortion patients. These included Tennessee residency requirements, a requirement that abortion patients be informed by a physician that abortion is in many cases a major surgical procedure, a two day waiting period, and a requirement that second trimester abortions be performed in a licensed hospital. Medical emergency exemptions to informed consent and waiting period laws (in cases where the life of the mother was in jeopardy) were also ruled unconstitutional. Currently, Tennessee cannot regulate, inspect, or license facilities that perform abortions – and unless Amendment One passes, we cannot have even basic restrictions like these to protect women who face abortions.
In addition, the Court applied the “strict scrutiny” standard to any future laws regarding abortion passed by the Tennessee General Assembly. This is the most stringent standard applied to judicial review throughout all U.S. Courts. Under strict scrutiny, any Tennessee law restricting access to abortion in any way can be ruled unconstitutional unless the State can prove that the law is justified by a “compelling state interest and is narrowly tailored to meet that interest.” Strict scrutiny effectively eliminates any new Tennessee laws limiting abortion, because they would not be able to meet the strict scrutiny standard. It also makes the few protective laws still on the books (including parental consent before a minor can have an abortion procedure and a TennCare budget provision limiting funds for abortion except in the case of rape, incest, or to protect the life of the mother) essentially void because of their vulnerability to legal challenge.
As a result of Planned Parenthood v. Sundquist, Tennessee – a state where the majority of citizens are Pro-Life – became an abortion destination. We are one of only 16 states with a fundamental right to abortion, and are the only state in the southeast without waiting period or informed consent laws. In 2011, the latest year for which statistics are available, 23% of abortions in Tennessee were performed on women from other states. We now rank third among the 50 states in performing abortions on women from other states.
The Commercial Appeal reports:
In Alabama, abortion rights advocates have set up an online crowd-sourcing campaign to raise funds to help women get to Nashville for an abortion. In northern Mississippi . . . the National Organization for Women refers women facing unwanted pregnancies to CHOICES, a Memphis abortion clinic. And in Kentucky, advocates have organized rides for women to clinics in Nashville and Bristol in East Tennessee. At least one Tennessee clinic, The Women’s Center in Nashville, advertises $25 discounts for out-of-state clients.
Amendment One restores the right of Tennessee citizens to have common sense laws that protect the unborn as well as women who elect to have abortions. Period. Nothing will change unless and until Tennesseans want their legislators (and governor) to pass new laws.
No matter what the mainstream media, left-leaning political groups, Democratic politicians and sexually liberated college co-eds say to confuse the facts, abortion-on-demand advocates are not in the majority in Tennessee. When they portray the Tennessee General Assembly as a group of tyrannical, female-bashing men committed to stripping away women’s reproductive rights, they are ignoring a few fundamental facts.
- Roe v. Wade is federal law and cannot be undermined or countermanded by state law.
- 17% of Tennessee legislators in 2013 were women, including the Speaker of the House.
- The people of Tennessee freely elect legislators to represent their interests and values and hold them accountable for their votes. Legislators either vote the will of the people or they are voted out.
- Notwithstanding a Democratic Party majority in Shelby County, Tennessee is now a solidly red (Republican) state where the majority of voters desire common sense restrictions on abortion and statutes providing protection for both the unborn and women who seek legal abortions.
Look closely at the language used in No on One scripts. They predict a future that is inconsistent with reality. If Amendment One is passed, abortion will remain legal . The Tennessee General Assembly will still function democratically. Proposed laws regarding abortion at any time in the future will be hotly debated by people on both sides of the issue, by legislators and the people who elected them.
Sometimes unpopular laws do get passed. When that happens, voters organize lobbying efforts and get them appealed or revised in another legislative session.
Political advocates and lobbying organizations who use scare tactics and misrepresentations count on voters who don’t know the facts. Never, ever make a voting decision based on political ads or one news source alone. We live in a world where many people (especially politicians, regrettably) believe that the end justifies the means. And so they lie to get people to support their position.
Always know the facts.
If we stick to the facts, your decision on Amendment One should be clear. If you want Tennessee to remain an abortion-on-demand state, with no ability to enact restrictions or patient protections of any kind, vote No. If you want to restore our state representatives’ rights to pass abortion-related legislation that reflects the will of the voting majority, vote Yes.
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Just posted: State Rep. John DeBerry’s refreshingly candid interview with Fox13 news anchor Darrell Green. Who and what is responsible for the violent youth culture in Memphis? Rep. DeBerry’s take may surprise you.
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For the past 12 days, Eddie and I have been enjoying the quiet beauty and many blessings of our Monteagle home-away-from-Memphis mountain abode. Alas, our wooded paradise will soon be on the market and we won’t have a place to recharge and decompress from the intensity of Memphis living.
Friends always ask how we like living in Memphis. This trip, Eddie joked – presciently, as it turned out – about how good it was to get away from living in the War Zone. Then came the Poplar Plaza Kroger teen mob attack, the shooting at Target on Colonial, and the murder of a sleeping 14 year old (drive by or planned, no one is yet saying) three blocks from our house in the Balmoral area.
We are no longer laughing. Neither is anyone else who lives in East Memphis.
Crime in Memphis is no joke, and violence perpetrated by or against youth is particularly devastating to our community. In an interview for ABC News just a year ago, then-17 year old Briana Winters said, “Instead of preparing for the ACT or filling out college applications or even going to prom or graduation, youth in my city are dying because of senseless violence or being put in jail for pulling the trigger.”
Most youth crime is gang-related, and increasing in Tennessee. Local law enforcement agencies reported in 2009 that 54% of violent crime offenders were aged 24 or younger. Memphis’ Operation Safe Community (OSC) warns that “Children as young as nine years old have become involved in gangs and criminal activity, in response to strong peer pressure and threats, in search of a sense of community or family where otherwise there is none, or simply to earn money that can pay for a roof over their heads and clothes on their back.”
Tomorrow afternoon, September 9th, representatives of city and county law enforcement agencies, Shelby Co. Schools, the U.S. Department of Justice, and local parents and youth will convene at the SCS Board of Education Auditorium for another in a series of community forums on youth crime. Timely, no?
According to a flyer I received through linchub today, Youth Summit II: Who Is Really Committed? is part of the National Forum on Youth Violence Prevention and OSC. The former is a joint project of the U.S. Departments of Justice and Education, launched in 2010. The latter is a non-profit organization initially funded by the Plough Foundation and Guardsmark, Inc. Newly elected Juvenile Court Judge Dan Michael will open the three-hour forum at 1:30 p.m.. He will be followed by Shelby Co. Mayor Mark Luttrell and a Dept. of Justice representative who will discuss “National Best Practices in Youth Violence Prevention.” Two panel discussions round out the agenda. A law enforcement panel includes the local heavyweights – General Amy Weirich, MPD’s Toney Armstrong, and Sheriff Bill Oldham. The second panel will feature engaged parents and youth, including current or participants in local initiatives JIFF (Juvenile Intervention and Faith-based Follow-up), G.R.A.S.S.Y. (Gang Reduction Assistance for Saving Society’s Youth), and Memphis Ambassadors Program.
Not all local crime is committed by youth, but a special focus on reducing and preventing youth crime can have an immense, beneficial impact on the quality of life for everyone in Memphis – especially our precious children.
Eddie and I regret that we won’t arrive back in Memphis in time to attend the summit tomorrow. We hope that some of you will do whatever it takes to be there. You are asked to R.S.V.P. as soon as possible to Tamara Sawyer at Memphis Shelby Crime Commission (email@example.com or 901-507-4191). You may also contact Memphis Shelby Crime Commission Project Coordinator Brona E. Pinnolis, JD at 901.507.4192.
Back in River City will follow up on this and other crime prevention efforts in Memphis.
In case you’re wondering, Monteagle police reports typically feature incidents no more heinous than the discovery of infected bats, courageous retrieval of snakes from front porches, and the occasional underaged Sewanee student caught drinking off campus. (I’m not joking.) Recently a hunter accidentally, tragically shot and killed his best friend.
We are going to miss Monteagle.
The resounding success of Back in River City’s second voter’s guide in three years (thank you!) assured us that the people of Greater Memphis are hungry for facts and information that will help them make better civic choices. So, please excuse us as we indulge in a little shameless self-promotion.
Today, we announce Back in River City – LIVE!, a new way to learn about the issues, featuring Back in River City co-founder Eddie Settles. Eddie is now booking speaking engagements for groups interested in knowing how to make a better Memphis.
When Eddie and I returned to Memphis three years ago, we quickly decided our mission here was Memphis itself. After 30+ years away, the city we knew as flawed but laudable seemed to be little more than a steamy, hot mess of poverty, crime, racial bickering and lame leadership; its proud accomplishments reduced to pork barbecue, Elvis, and Beale St.
Eddie launched immediately into learning about the politics, people, problems, power, and policies that make up today’s Memphis and Shelby County. His monthly schedule of self-guided field work typically includes public forums, agency board meetings, political pow-wows, and civic workshops.Three years of faithful attendance at
civic events has made Eddie a familiar figure in the public square: he’s the imposing guy in the bow tie who always participates in discussion, asking insightful and pertinent questions. So it didn’t surprise me when the Memphis Flyer’s Jackson Baker recently approached him at a meeting with a puzzled look and said words to the effect, “Who ARE you?”
As Back in River City’s Mr. Outside, Eddie has generally determined which public policy issues we explore for the benefit of our blog followers. While Mrs. Inside’s name may appear more frequently as a byline, believe me, the insight and inspiration comes from the Bow Tie Guy.
Two and one-half years into the ministry that is Back in River City, we are extending the ways we seek to inform and engage people who care about Memphis. Back in River City – LIVE! will put Eddie’s amazing communication skills to fuller use. Extroverts speak; introverts write. Each of us can and do both write and speak on issues we are passionate about; but for now, Eddie is launching our speakers’ bureau, while I’m setting aside time to work on two upcoming Memphis-focused ebooks (more about that later).
Check out the new tab (Back in River City – LIVE!) on our home page to read Eddie’s bio and see what topics he’s currently covering. If your club, civic organization, or discussion group is looking for an interesting and dynamic speaker for an upcoming meeting, contact the Bow Tie Guy at firstname.lastname@example.org.
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.