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VOL. 124 | NO. 153 | Thursday, August 6, 2009

Legal Battle Over Tennessee Plan Continues

By Rebekah Hearn

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A statewide debate continues after the U.S. Sixth Circuit Court of Appeals last week upheld a lower court’s dismissal of a lawsuit challenging the constitutionality of the Tennessee Plan, the state system for appointing judges to the Tennessee Court of Appeals, the Court of Criminal Appeals and the Tennessee Supreme Court.

Drew Johnson, the president of the Tennessee Center for Policy Research, and John Hooker, a Nashville attorney, filed a lawsuit last year against Gov. Phil Bredesen, Tennessee Attorney General Robert Cooper and several current or former Tennessee Supreme Court justices, including current Chief Justice Janice Holder of Memphis.

The plaintiffs allege the Tennessee Plan violates the Fourteenth Amendment’s due process clause, in which voters are given the right to elect judges. They also allege it violates the Tennessee Constitution.

Under The Tennessee Plan, enacted in 1974, the governor appoints judges to the Court of Appeals and Court of Criminal Appeals. In 1994, the General Assembly amended the Plan to include the appointment of state Supreme Court justices.

But the plaintiffs argue the courts never ruled on the constitutionality of the Tennessee Plan, instead dismissing two cases on technicalities. And the Tennessee Bar Association has publicly stated it supports the Tennessee Plan as being constitutional.

Both sides cite court documents saying the state Supreme Court already has ruled on the constitutionality of the Plan.

Back and forth

After the Tennessee Plan was amended, state Supreme Court justices are appointed by the governor, a process called merit selection.

The Judicial Nominating Commission (formerly the Judicial Selection Commission) is comprised of 17 members – 10 to 14 attorneys and a maximum of seven citizen members. Applications for the next convening Legislature’s judicial commission were accepted by the Administrative Office of the Courts until last Friday, and the AOC has more than 230 applicants. The Legislature reconvenes in January. It currently is in recess.

The basic process is: If a judicial vacancy occurs in one of the courts, the commission submits a list of three potential nominees. If the governor does not choose a judge from the first list, he is given a second list from which he must choose someone to fill a vacancy.

The selected judge then fulfills the remainder of the term to which he or she was appointed, and at the next statewide general election, voters can participate in a retention election, a simple yes/no election to retain an acting judge.

In Johnson v. Bredesen, the district court and the appeals court found the plaintiffs lacked standing to bring the case and thus the court has no jurisdiction to hear it.

“If you read … their opinion, you’ll notice that the court explicitly said that the district court … was required to put aside the issue of whether the Tennessee Plan is unconstitutional and consider only whether the plaintiffs satisfied the standing requirement,” said Justin Owen, the director of legal policy at the Nashville-based Tennessee Center for Policy Research, which bills itself as an independent, nonprofit and nonpartisan research organization.

Owen said neither he nor TCPR believes merit selection and retention elections are the wrong way to go. He simply argues the voters should have the right to decide whether a constitutional amendment is in order.

“I want to make very clear: We’re not debating what the best system for selecting judges is,” Owen said. “We’re not trying to argue that merit selection is bad or that popular elections are good. We’re just arguing that until the voters of this state have the ability to amend the state constitution, then they have the right to elect judges.”

Allan Ramsaur, executive director of the Tennessee Bar Association, sees the other side of the argument.

“Fundamentally, we favor merit selection and retention election as the best way … to have a stable, predictable, accountable system for picking judges and maintaining fair and impartial courts,” Ramsaur said. “We’ve not thought the Constitution needed to be amended.”

Ramsaur also said judges who are appointed can avoid costly campaigns and fundraisers, which he said can skew the public’s perception of the election because it points to partisanship on the part of the competing judges.

“We think Tennessee’s merit selections and retention elections strike a fair balance in choosing judges based on their competence and then holding them accountable through retention elections,” he said.

Letter of the law

The Tennessee Constitution reads, “The judges of the Supreme Court shall be elected by the qualified voters of the state,” and the “judges of the circuit and chancery courts, and of other inferior courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

Ramsaur said the state Supreme Court has already ruled on the constitutionality of the Tennessee Plan; Owen said they have not.

The court has ruled on the constitutionality of retention elections. In Higgins v. Dunn, a 1973 Tennessee Supreme Court case, the court held that “election” has various meanings, and retention, or yes/no, elections, are constitutional under three other sections of the state Constitution.

George “Buck” Lewis III, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz PC and immediate past president of the TBA, said “the point of the argument is that the Constitution uses the word ‘election’ in a lot of different contexts.”

“It’s in the discretion of the General Assembly what type of election it will be,” Lewis said.

In Higgins v. Dunn, the Supreme Court says, “It cannot mean (the Tennessee Plan) is unconstitutional because the election provided for a limited approval or disapproval.”

But when there is a vacancy on the Supreme Court, the governor appoints a new member to fill it. No votes are cast to fill those positions.

A major basis of Owen’s argument is voters have a right to vote for Supreme Court justices as well.

“There are serious problems with having elected judges,” he said. “I understand all that. But … we’re not talking about the best system; we’re talking about what the Constitution requires.”

Owen said TCPR, Johnson and Hooker will consider submitting certiorari to the U.S. Supreme Court to hear their case, which they must do within 90 days of July 28, when the appeals court opinion was issued.

A constitutional convention could be called on the issue. But the likelihood of that is slim.

Ramsaur said a constitutional convention could lead to opening a virtual Pandora’s box of constitutional questions.

“Once people have been elected to serve at the constitutional convention, they have a lot of freedom to do a lot of things,” he said. “So that’s one of the reasons we don’t favor opening this up to a whole other general debate – you just don’t know what might come of it.”

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