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VOL. 129 | NO. 169 | Friday, August 29, 2014

Kirby, Wiseman Campaign for Judicial Selection

By Bill Dries

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Attorney Lang Wiseman says there will be no return to the days when Tennessee legislators had no direct role in who the governor appointed to be appellate court judges if an amendment to the Tennessee Constitution is defeated in November.


“The good old days ain’t coming back,” Wiseman said to a group of 13 Wednesday, Aug. 27, at a forum at the Memphis Bar Association sponsored by the Association for Women Attorneys.

KIRBY (tncourts.gov)

He was referring to the current system of appointments by the governor followed by retention elections in which voters vote “retain” or “replace” on the appointee in the next election.

Incoming Tennessee Supreme Court Justice Holly Kirby, at the same forum, said passage of the amendment on the statewide Nov. 4 ballot will be difficult because the amendment must get a majority of the number of votes cast in the general election race for governor in order to change the constitution.

The amendment would require approval of the Tennessee Legislature of those nominated by the governor to the state’s appellate courts, including the Tennessee Supreme Court. It also provides for approval by default if the legislature doesn’t act on the governor’s nomination in 60 calendar days when the legislature is in session or within 60 days from the start of the next annual legislative session. That is if the governor makes a nomination while the legislature is out of session.

Kirby said the amendment will bring “civility and finality” to years of debate and lawsuits, including the appointment of three special Supreme Court panels on whether the Constitution, as it now stands, allows for retention elections or instead requires contested judicial elections for the appellate court judges.

“This continued controversy destabilizes our appellate courts and undermines the system of justice,” she said. “This is an opportunity to resolve a simmering controversy.”

Wiseman, a former Shelby County Republican Party chairman, said some assume wrongly that if the amendment is defeated the current system will remain in place with retention elections.

“That’s a false choice,” he said. “If amendment two does not pass we will not go back to the good old days of the Tennessee plan. I think we all need to be realistic and be practical about where the legislature is on this. … If amendment two fails, we are headed one place – full out contested candidate filed elections for our appellate positions. … That’s not a threat, that’s a promise.”

Wiseman believes contested appellate judicial elections would be “disastrous” because the appeals courts are the final word, and ruling on state cases and contested elections would mean a different style of campaign.

Like other critics of contested appellate court elections, he argues that with more money raised to win the campaigns, there would be an increased belief by attorneys, as well as others, that the large sums are affecting the quality and perception of justice.

Wiseman and Kirby agreed that getting a majority by the standards of turnout in the governor’s race will be difficult because of the ballot falloff that normally occurs in judicial races.

Voters tend to not vote in races that are lower on the ballot or on the back pages of the touch-screen machine ballots.

Wiseman said a vote in the governor’s race followed by not voting on the amendment one way or the other is the same as a vote against the amendment.

The general election for governor will be at the top of the Nov. 4 ballot across the state. But incumbent Republican Gov. Bill Haslam faces nominal opposition from Democratic nominee Charles V. Brown, who won the nomination in the absence of any Democratic contender backed by the state party establishment.

So turnout in the governor’s race might be lower than it would be in a year in which no incumbent is seeking re-election.

In the August elections, with the three Tennessee Supreme Court justices on the ballot for retention and an effort to defeat all three, each of the three retention races drew 865,000 to 874,000 voters statewide. That compares to 847,000 voters who turned out in the Democratic and Republican primaries for Tennessee governor statewide.

The comparison has a number of factors that make it an inexact gauge of what turnout could be like for the constitutional amendment in November.

With that caveat, the three justices were retained with 490,000 to 496,000 votes statewide in each of the three races. The number of “retain” votes in each of the three races is 56 percent of the number who voted in the two primaries for governor in August.

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