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VOL. 128 | NO. 129 | Wednesday, July 3, 2013

Judicial Election Process Muddied

By Bill Dries

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The Judicial Nominating Commission had a busy last few days before it went into limbo last week.

The commission sent Tennessee Gov. Bill Haslam two slates for each of the three appeals court vacancies to come a year and two months from now when three appellate court judges opt not to run for re-election and end their terms.

The Tennessee Legislature did not renew the commission that recommends finalists for judicial appointments, so the commission went out of business effective July 1, the beginning of the new fiscal year.

The bill to renew the nominating commission was a casualty of an end-of-session political spat among Republican leaders in the two houses of the legislature.

Shelby County Courthouse

(Daily News File/Lance Murphey)

Meanwhile, four appellate court judges, including Tennessee Supreme Court Justice Janice Holder of Memphis, have taken the unusual step of saying they will serve to the end of their current eight-year terms on Aug. 31, 2014. They will not seek re-election in the 2014 retention elections earlier that month.

If they follow that plan, even if the legislature does bring the nominating commission back to life, there will be no names for those four retention elections on the August 2014 statewide ballot.

“There simply will not be any yes-no retention. There will simply not be anything for that seat,” said Allan Field Ramsaur, executive director of the Tennessee Bar Association noting the resignations take effect after the election date. “In none of these cases could you have a retention on the ballot because there’s not a vacancy … and somebody to retain.”

The nominating commission’s action is in anticipation of such a body not being around when the judges leave the court.

“The only thing driving the nominating commission making the recommendations is that the nominating commission went out of existence,” Ramsaur said.

Haslam said through a spokeswoman Monday, July 1, that he will use the slates of finalists the nomination commission completed last week.

“The governor plans to review and make appointments based on the final recommendations of the Judicial Nominating Commission,” said Alexia Poe, communications director for Haslam. “Concerning outstanding vacancies or any that occur in the future, the governor is currently reviewing what next steps might be appropriate.”

Holder’s vacancy is one of those future cases that Haslam will review.

Holder announced her retirement from the high court June 26 with the nominating commission unable to field applicants to make recommendations on in that short a time.

Most appellate judges resign during their term of office with an appointment made by the governor then. The last appellate court judge to leave when his term ran out was Supreme Court Justice Adolpho A. Birch of Nashville in 2006. And the timing reignited a long-running controversy about how appellate court judges are appointed and elected.

The result was a revamped nominating commission after some debate about having contested elections with multiple candidates.

The Tennessee Bar Association opposes such elections.

“We think it was really irresponsible for the legislature not to act, to put it into sort of this muddle,” Ramsaur said. “We have for 50 years favored merit selection and believe it and retention elections meet the constitutional test for election.”

But the bar association doesn’t speak for all attorneys. As the nominating commission was preparing for its final flurry of activity last month, Nashville attorney John Jay Hooker was in Davidson County Circuit Court seeking an injunction to stop the nominating commission from making its decisions.

It marked the eighth time Hooker has gone to court in an attempt to stop the retention process and move the state back to contested elections. Hooker, the 1970 Democratic nominee for governor, contends the wording of the Tennessee Constitution means a contested election with several candidates, not a retention race.

Circuit Court Judge Hamilton Gayden denied Hooker’s request.

The nominating commission, meeting June 29 in Jackson, interviewed those interested in the vacancy for the Western Division seat on the Tennessee Court of Appeals that Judge Alan Highers is leaving.

They recommended Shelby County Circuit Court Judge Robert L. Childers and Chancellor Arnold Goldin of Memphis, and attorney Brandon Owen Gibson of Alamo. The second slate of finalists to go to Haslam for the vacancy, should he reject all three on the first slate, is Frank S. Cantrell, deputy director of Memphis Area Legal Services, Jackson attorney Dale Conder Jr. and Dyersburg attorney Hubert Bailey Jones.

Meanwhile, Tennessee voters will find on the November 2014 ballot a proposed amendment to the Tennessee Constitution that would eliminate a nominating commission. The governor would appoint either for a full term or to fill a vacancy and the legislature would confirm that choice.

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