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 (firstname.lastname@example.org 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 email@example.com.
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.