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Judge selection debate getting foggier

Tom Humphrey, The Knoxville News-Sentinel • Jan 20, 2014 at 6:00 PM

NASHVILLE (MCT) – The quagmire that has enveloped Tennessee's judicial system thickened last week, even as Gov. Bill Haslam and former Gov. Phil Bredesen formed an alliance for campaigning toward a ballot-box resolution to a multifaceted melee.

Herbert Slatery, Haslam's legal counsel, announced during a joint appearance with Bredesen before a Tennessee Business Roundtable gathering the formation of Yes on Two, an organization that will push for voter ratification of an amendment to the state constitution on appointing judges.

Slatery called the Nov. 4 vote "the most important judicial issue of my lifetime," according to The Tennessee Journal, and said Republican Haslam believes that "we have to pass this."

Democrat Bredesen said failure of the amendment could lead to the state's top judges being chosen in political campaigns, a "disaster" for integrity of the judicial system. He suggested that out-of-state groups may spend $2 million to campaign against passage.

Meanwhile, John Jay Hooker, who has spent decades crusading against the current system of selecting judges for the state Supreme Court and appeals courts, won a rare courtroom victory that further confuses the status of the judge selection process.

Circuit Court Judge Hamilton Gayden of Nashville ruled that the commission responsible for evaluating the performance of appellate judges is "invalid" because – despite a statute declaring it must have gender and racial balance in proportion to the state's population – the panel has seven white male members, one white woman and one black woman. Women make up 52 percent of the state's general population.

After a closed-door conference with Janet Kleinfelter, the deputy state attorney general who represents the commission in the lawsuit, the commission proceeded on Friday to vote on whether to recommend new terms for three Supreme Court justices and 19 appeals court judges. It recommended new terms for all 22, though in two cases that was a reversal of a preliminary vote taken last fall.

"This was a sad day for democracy," Hooker said afterward. "This commission thumbed their nose at Judge Gayden's order and the rule of law."

An appeal of Gayden's order is expected. If so, Hooker and his allies in court say they will ask all five members of the sitting Supreme Court to recuse themselves and have Haslam appoint a special panel to hear the case – just as occurred last year in Hooker's fourth legal assault on the whole judicial selection system.

In that overall challenge, the special Supreme Court held a hearing last July, but has not issued a decision – fueling speculation in legal circles on the possibility that the panel could issue a ruling against the present system, despite past decisions upholding it.

Article VI, Section 3 of the state constitution says Supreme Court judges shall be "elected by the qualified voters of the state" with similar language applying to judges of "inferior courts." Under the current statute, they are appointed by the governor but subject to a yes-or-no voter decision on whether to get a new term after initial appointment. Critics, including many Republican state legislators, say this "retention election" violates the constitutional provision.

The proposed amendment to the constitution – it will be listed as "amendment two" on the ballot with a proposed amendment on abortion listed as "amendment one" – would change the current language. Instead, the governor would be authorized to appoint appellate court judges directly, subject to confirmation by the state House and Senate. A retention election for new terms would be kept.

The Legislature has effectively dismantled part of the judicial selection system already, terminating the existence of the Judicial Nominating Commission. Under the current statute – which remains part of state law – that commission is supposed to recommend three nominees for a vacant judgeship, and the governor must make his appointment from those on the list.

Haslam used an executive order to replace the defunct commission with a new nominating commission, keeping the current system more or less functional. There are now five "judges-in-waiting" appointed by Haslam to fill vacancies that will not exist until Sept. 1, the date that current appellate judges -- including two Supreme Court justices – will officially retire from the bench.

Another quirk in the convoluted situation: All the current judges who want new terms will be on the ballot in August for a voter yes or no. Historically, only one judge has been unseated by a no vote. Thus, if tradition holds, they will all get new eight-year terms in August, and the five "judges-in-waiting" will take their seats – all before voters decide in November whether to amend the constitution.

Gayden's decision last week raises the possibility of dismantling another part of the selection system. Before a retention election, the Judicial Performance Evaluation Commission reviews work of judges who want another term and gives a public recommendation -- as it did Friday – along with a report on the performance of each judge, which will be made public in March.

"If Tennessee has a merit selection that survives, then it is critical there be an evaluation component," said Circuit Court Judge Robert Jones of Columbia, who chairs the commission deemed "invalid" by Gayden.

Hooker contends that the Gayden ruling effectively should have terminated the commission's existence. That could mean all its evaluation work and recommendations – a requirement under current law -- are also invalid, and, thus, one of the prerequisites for holding a retention election has not been met and more legal muddle would be added to the quagmire.

"Every time we think this mess couldn't get any worse, it does," said one lawyer who has kept abreast of the courtroom and legislative proceedings.

The Yes on Two campaign will be led by Stephen Susano, son of presiding Court of Appeals Judge Charles Susano of Knoxville, who was one of those recommended for a new term by the evaluation commission on Friday.

Hooker, meanwhile, says he hopes to lead a "no, no, no, no on two" campaign.

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