Business groups and trial lawyers, traditional adversaries on many issues, are poised to unite in pushing to preserve Tennessee’s current system for selecting state judges as it faces an upheaval without action by the Legislature next year.
In this year’s legislative session, attorney organizations lobbied against business groups as Gov. Bill Haslam pushed tort reform legislation. Business won that round with enactment of a law that puts limits on the amount of money juries can award in some lawsuits.
But spokesmen for the opposing sides in that round now basically agree that they do not want to be fighting each other — through campaign contributions and otherwise — if Tennessee should shift to the popular election of judges on the state Supreme Court and appeals courts.
On the other side are a substantial number of legislators, backed by socially conservative organizations such as Family Action Council of Tennessee, who argue the present system violates a state constitutional provision declaring that the judges “shall be elected by the qualified voters of this state.
” “I think we continue to perpetuate a fraud on the voters of this state every year we allow the system to continue,” said Sen. Mike Bell, R-Riceville.
Because of his position on the Senate Government Operations Committee, Bell is in a key position to have an impact on the convoluted situation. He is vice chairman of the panel and could become chairman soon. Other outspoken critics of the current system such as Sen. Stacey Campfield, R-Knoxville, are members.
Under the present system, the governor appoints judges to the Supreme Court and appellate courts from a list of nominees submitted by the Judicial Selection Commission. When their terms expire, the incumbent justices face a “retention election,” wherein voters decide yes-or-no on whether each appeals court judge should get a new eight-year term.
There are no contested elections pitting one judicial candidate against another, like ones that still occur for seats on lower-level trial courts.
Also under current law, every board and commission in state government must be renewed periodically by the Legislature. If not, it will cease to exist or “sunset” in legislative lingo.
The Judicial Nominating Commission will sunset on June 30, 2012, the way things stand now. The first step toward giving the panel another lease on life is winning the approval of Government Operations Committees in the House and Senate.
“As a member of the committee, I’m going to do all that I can to see that the commission has problems being renewed,” said Bell.
Also involved in the situation:
n A bill sponsored by Campfield calls for completely abolishing the present system and resuming contested elections for all appellate judges. The basics of the present system have been in place since 1971, though there have been some periodic revisions since.
Campfield’s bill cleared one Senate committee earlier this year with Senate Speaker Ron Ramsey casting the deciding vote in its favor. It has not advanced further in either the House or Senate, but will be up for further consideration in January.
n Ramsey is pushing what he considers a middle-ground approach — a proposed amendment to the state constitution, sponsored at his behest by Senate Majority Leader Mark Norris, R-Collierville.
The proposed amendment would change current constitutional language to “legitimize” the present system. Ramsey says he strongly believes the present system is unconstitutional — despite “wink-and-nod” court decisions to the contrary — but also believes the state is better served if judges are not required to engaged in high-spending political contests to win their seats.
If the constitutional amendment were to gain legislative approval, the earliest it could be put to a statewide referendum for final voter approval would be November 2014. The state’s 24 appeals court judges and five Supreme Court justices are scheduled to face retention elections in August 2014.
Against this backdrop, organizations including Tennesseans for Economic Growth, the Tennessee Chamber of Commerce and Industry and the Tennessee Business Roundtable this summer are preparing to come to the defense of the present system. So are the Tennessee Bar Association and the Tennessee Association for Justice, formerly known as the Tennessee Trial Lawyers Association.
Tennesseans for Economic Growth (TEG), a statewide business group formed in March to push for tort reform legislation, has not taken a formal board vote yet but is expected to do so soon.
Doug Buttrey, executive director of TEG, said keeping the present system intact in the face of an evolving attack is a logical extension of the tort reform law.
A primary purpose of the new law is to give business an assurance of predictability and stability in dealing with the judicial system, Buttrey said. That stability would be eroded if Tennessee returns to contested election of top judges, he said.
“We don’t want (the Legislature) to undo the good work we did on tort reform,” he said.
Buttrey cited a study that found $269 million was spent on campaigns for election to the Supreme Courts of 22 states that have contested elections for the seats. That was more than twice as much as in the previous decade, said the Brennan Center for Justice at New York University School of Law, and included multiple special interest donors, attack advertising and similar political situations that post “a grave and growing challenge to the impartiality of our nation’s courts.”
Suzanne Keith, executive director of the Tennessee Association for Justice, said her organization has participated in discussions with the business groups.
“We agree with what they’re trying to do,” she said. “We believe the (present) process is the best possible way of selecting justices.”
There is some uncertainty about what the legal effect would be if the Judicial Nominating Commission and the Judicial Evaluation Commission, also up for sunset June 30, cease to exist. Bell said that, given other statutes and the state Constitution, the effect likely would be to allow the governor to make appointments without any nominating or evaluation process, but with retention elections still in place.
Ramsey said the end of the commissions could mean a return to popular election of top judges, but that the Supreme Court would presumably decide the issue and suspects that would lead to continuation of the present system in a “wink and nod to the Constitution” as in two past decisions upholding the appointive system.
“A Supreme Court that can say selection means an election is liable to say anything,” Ramsey said in an interview.
The present system was put in place with Democrats in control of the Legislature. Now that Republicans control both House and Senate and Haslam, a Republican, as governor, Ramsey said the present system is “slowly but surely changing the face of the judiciary” toward conservatism.
He would like to see the present system remain in place at a time “when we’re assured it (the judiciary) will be moving to the right a little bit, instead of letting money buy the elections.”
But that holds only if the present system is legitimized by an amendment to the state constitution, he said.
Proponents of the present system say a constitutional amendment is unnecessary. Despite protests from “constitutional purists,” said Buttrey, it is effectively the law of the land because of the past court decisions.There is also the question of whether voters would approve amending the constitution to embrace appointment of judges rather than election. The idea was put before voters in the late 1970s and rejected, though Ramsey notes that it was entangled with other questions and he believes voters would approve today.
Ramsey said he has not decided whether to invest the personal time and effort in the coming year to try and resolve the issue. And the conflicting proposals and conflicting views may well mean a deadlock.
At this point, he said, “I don’t think the votes are there to do anything.”