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Shelby Co. Voters Guide: Amendment Two

October 16, 2014

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.

bivinsswearing_in credit tncourts.gov

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)

gavel on money

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)

Dr. John Avery Emison,  writer, editor, and distinguished environmental scientist, is  State Coordinator of Vote NO on 2! He argues:

“ The real truth behind Amendment 2 is the belief that the Governor is power-to-the-people02able 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.

oz behind 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.

Example:

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.

Got it?

Okay, so if Amendment Two should fail, how will appellate and TSC judges be seated? The answer is:

Dunno.

i dunno muppets

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?

vote for judges

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.

just say no

but wait theres more

extra

Post for Political History Geeks and Nerds Only nerd

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.)
  • dunn swearing inIn 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.
John Jay Hooker

John Jay Hooker

  • 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.

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