Smith Has Full Plate as 2012 MBA Prez

By Bill Dries

The new president of the Memphis Bar Association said a hot topic in the coming year will be how appellate judges are selected.

(Photo: Bob Bayne)

Some of the debate about changing the process from one of appointment by the governor followed by the next scheduled retention election will come from Nashville, where the Tennessee Legislature will consider bills to change that.

But Gary K. Smith said the MBA will be campaigning against a change and will be very vocal in its opposition.

“We will be strongly advocating the preservation of judicial independence and resisting efforts in any form, legislative or otherwise, to undermine judicial independence,” Smith said.

Smith began his yearlong term as bar association president earlier this month. He said he plans to continue the MBA’s push of several years now toward more pro bono work by attorneys and law firms.

Smith, a member of Apperson Crump PLC, said the MBA also hopes to present its case on judicial selection to 200 groups of all kinds during the coming year.

“There’s so much lack of understanding about the judicial branch of government, its role and the importance of that role in the constitutional balance,” Smith said of citizens who don’t work in the legal system and only rarely see how the system works.

“They deal every day with keeping up with what the Republicans are doing and what the Democrats are doing and what the state legislature is doing and what the Congress is doing. But they really don’t have occasion to keep up with what’s going on in the judicial branch and why.”

Smith became an attorney in 1973, earning his undergraduate degree at the University of Kentucky and Southern Illinois University, where he graduated in 1970. He earned his juris doctorate at the University of Memphis Cecil C. Humphreys School of Law in 1973.

But Smith knew long before that that he wanted to be an attorney.

It was a specific moment in high school a year after the assassination of President John F. Kennedy. Smith was giving a report on Joseph Kennedy Jr., the Kennedy family member being groomed to run for president.

Before that could happen, the younger Kennedy died in a fiery explosion on an aircraft while on a military mission in World War II and that was the subject of Smith’s report.

“Just as I had finished and walked to my seat and sat down, the bell rang and nobody moved,” he said. “It was just quiet. … Everybody silently filed out. I will never forget the feeling I had over that.”

“The reaction of my classmates had an effect on me and my decision was made right then. I wanted to be able to do something in my life where I could re-create that environment. It didn’t take long to figure out that the only way you could really do that was to be a lawyer and if you were going to be a lawyer – to be a trial lawyer.”

Smith’s areas of practice at Apperson Crump are product liability, medical malpractice and insurance bad faith claims as well as representing plaintiffs with catastrophic injury claims.

Attorneys in the city are not of one opinion on the judicial selection issue. Tennessee State Sen. Brian Kelsey of Germantown, an attorney and owner of his own Collierville law firm, The Kelsey Firm, is among those favoring a change. But it is different from efforts by still others to have appellate judges elected by popular vote in contested elections as local trial court judges are once every eight years.

Kelsey has already filed legislation that would keep the practice of the governor appointing state appellate court judges. But Kelsey would have the Tennessee State Senate then vote on confirming the nominees in a process similar to that used to seat federal court judges.

Kelsey’s change would require a constitutional amendment, which Tennessee voters would decide the fate of in 2014 if Kelsey’s bill is approved this year in Nashville.

The proposal is the latest in a turbulent debate that changed the system in 2009 with a revamped Judicial Nominating Commission. The commission interviews and hears public comments on all who apply for vacancies and then sends a list of three finalists to the governor.

The governor must pick one of the three or reject all and get a new list of finalists from the commission. The revamped commission is only in place until June 30 under a sunset provision in the 2009 legislation, so next year legislators must specifically vote to extend the provision or replace it.