7/18 law focus State of confusion By JAMES SNYDER The Daily News Its been said what happened last week has left the state of Tennessee in a state of confusion. But the controversy over judicial appointments and elections also has left the state in stasis. Thats because after a whirlwind of lawsuits and the intervention of a special state Supreme Court and a federal judge, the rules on how state-level judges are appointed or elected are still unclear. And what might have been hurt most was the democratic process itself. To figure out what happened, the story needs to be unwound a few years. In 1994, Tennessee adopted a law based on what is known as the Missouri Plan, which was a move toward a merit system in the selection of state-level judges. Under the Tennessee Plan, a judicial nominating commission was created to propose judicial candidates to the governor, who would then appoint one to the bench. After an eight-year term, a judicial evaluation commission would determine the fitness of the judge. If the evaluation committee approved, the judge would go before the electorate for a "yes" or "no" vote on retention. In case of a failure before the commission, the judge would face a contested election with other candidates. Fast forward to last month. Two lawyers filed suit to run against Supreme Court Justice Penny White, arguing that a yes/no referendum under the Tennessee Plan violated the state constitution providing for voter election of their judges, said Ken Holland, professor of political science at the University of Memphis. After Supreme Court justices recused themselves, a Special Supreme Court was created to decided in the lawsuit. On July 8, the special court declared that White was not subject to a yes/no vote. The decision was based on the Tennessee Plan itself, since White had not been reviewed by the evaluation commission. The next day the special court said opponents could take on White, even though the qualifying deadline was May 16. The special court opened the deadline to July 12 at 4 p.m. But early voting had already begun that day at 8 a.m., throwing the election process into disarray, said state election coordinator Brook Thompson. "We were in a state of flux last week, not knowing who was going to be on the ballot, whether it was to be an open contested election or whether it was to be a yes/no question," Thompson said. On July 10, the special court decided not to expand its ruling, saying that three appellate judges were subject to only a yes/no vote. Based on the special courts first ruling, the Secretary of States office made those three appellate judges subject to a contested race. In response, one of those appellate judges, Judge Holly Lillard of Memphis, filed a lawsuit with federal court to extend her term until the general election on Nov. 5. On Friday, U.S. District Court Judge Bernice Donald in Memphis ordered the state to allow Lillard to run uncontested. White and the two other appellate judges filed similar suits. That afternoon, Donald ruled that none of the judges would face opponents on Aug. 1. "(Donald) was very critical of the Special Supreme Court, saying they were incompetent," Holland said. "She hit pretty hard, saying they made a mess of things." Now things are back the way they were. All of the judges face uncontested yes/no votes on Aug. 1. Thats what happened. What was at stake? There were three issues here. The first was constitutional. The Tennessee Rule, which tries to enforce merit in the selection of judges, conflicts with the state constitution, which allows voters to choose their judges. "You could make a pretty strong case that the law violates the constitution," Holland said. But the process to amend the constitution could take three years at the very least. The second issue was statutory. The Tennessee Plan says that if the judges werent reviewed by the evaluation commission, then they would face a contested election. But since the new evaluation commission hadnt reviewed anybody, did the judges need to be contested? Finally, theres a more disturbing problem of voters rights, said election coordinator Thompson. The decision by the special Supreme Court placed the new filing deadline eight hours after early voting began. That gummed up the election process and didnt allow some people to vote. "We went to great lengths to let everybody know that voted on Friday that they would basically be disenfranchised from voting on the judicial races," Thompson said. "Anytime somebody doesnt get to vote on a particular race, I think its troubling."