Tennessee’s Judicial Nominating Commission, which will cease to exist at the end of this month, is moving to play its role in naming successors to three appeals court judges who have announced they will retire more than a year from now.
The commission’s farewell performances will come in meetings June 27, 28 and 29 to select nominees to succeed Court of Appeals Judge Patricia Cottrell of Nashville, Court of Criminal Appeals Judge Joseph Tipton of Knoxville and Court of Appeals Judge Alan Highers of Memphis.
All three have announced an intention to retire effective Aug. 30, 2014, when the terms of all sitting state judges will expire following retention elections for new judicial terms on Aug. 7, 2014.
If things go according to plan, the commission will submit a slate of nominees to succeed each of the three retiring appellate judges to Gov. Bill Haslam before June 30, when the panel will “sunset,” or cease to exist.
Haslam says that, given the unprecedented situation, he will follow through by appointing a new judge to fill each of the vacancies though those vacancies won’t officially exist until Sept. 1, 2014, and a spokeswoman for the Administrative Office of the Courts says he can wait for months to choose if he wishes.
“I think its a very perplexing situation,” said Sen. Doug Overbey, R-Maryville. “In a way I wonder about proposing nominees when there is not a vacancy. But I think I can understand the nominating commission is trying its best to do its duty before it sunsets.”
Overbey, an attorney, sponsored a bill in the legislative session earlier this year that would have extended the life of the commission until 2015. Sen. Mike Bell, R-Riceville, chairman of the Government Operations Committee that handles all “sunset” bills, sponsored a bill that would have given it one more year of life. Neither passed, leaving the commission to expire.
The two senators have differing views on the overall debate about Tennessee’s judicial selection system. Overbey favors the present “merit selection” plan. Bell contends the present plan runs contrary to the state Constitution because it eliminates contested elections for state Supreme Court justices and appeals court judges.
Bell said he is “uncomfortable” with the commission’s plans to move toward filling three vacancies that don’t exist before expiring.
“I think they (commission members) are being rushed to do a job that should take a little longer and that I don’t see as being necessary,” said Bell. “It’s not an emergency and it seems like it’s being treated as such.”
Bell said that the Legislature could decide to create a new commission in the 2014 session that begins in January, though “there’s a chance” that another deadlock will result in nothing winning approval. In that event, Bell said legislators could wait until the 2015 session to resolve the issue.
By that time, he noted, lawmakers will know the result of a November, 2014, referendum on amending the state Constitution to put a new system in place. Under the proposed amendment, the governor would appoint the state top judges directly, subject to confirmation of the state House and Senate.
Under a scenario of legislative inaction until 2015, there would be some period of time when there would apparently be no way to fill vacancies in top judicial positions when they occur because of resignation, retirement or death.
“The failure of the General Assembly to act and create some mechanism leaving nothing in place really is irresponsible,” said Allan Ramsaur, executive director of the Tennessee Bar Association.
Ramsaur said he would prefer to see the governor not act on the nominees submitted by the dying commission and instead urge the Legislature to create a new commission early next year. That would resolve the uncertainty now surrounding several aspects of the situation, he said.
With continued legislative inaction, Ramsaur said there is “a possibility of ending up with courts that don’t have a sufficient number of judges to hear the matters before them and hear them expeditiously.” Already, he said, there are sometimes complaints from lawyers and the public generally about slowness of the court system and leaving vacancies unfilled would exacerbate the situation.
Overbey said he hopes legislators next year will “do what I feel like we should have done this year” and simply put a commission in place to remain until after the November, 2014, constitutional referendum.
But Bell said legislators can reasonably wait until 2015, even if that means a few vacancies go unfilled for a while.
“I’m not sure it would hurt the judges just to work a little harder for four or five months, if needed,” he said.
Bell also said that having aspiring judges appear before the commission more than a year ahead of the vacancy they hope to fill could raise awkward situations. Presumably, lawyer applicants will want to continue working as attorneys while waiting, he said, and potentially will be taking on cases that could wind up in the appeals courts where they eventually hope to sit.
Judge Tipton said in an interview that he was “basically going along with the program” in announcing his retirement early
“I, as a lot of people did, had my doubts about it (the commission’s speedy process),” he said. “Once I understood there were people interested in trying to make it happen so that the nominating commission could select, I had no problem in going along with it.”
His concerns, the judge said, mostly centered on the commission having enough time to “get a sufficient number of quality applicants” and whether the pool of applicants would be limited by the waiting time from being interviewed by the commission to taking office. While current trial court judges, public defenders and district attorneys might be willing to apply, practicing lawyers — especially those in smaller firms — might not, he said.
There are a couple of other oddities in the commission’s plan:
n The governor apparently will wait until well after the commission has ceased to exist to make appointments from the lists submitted to him.
“He will take the appropriate amount of time to determine the best fit for the position before making any appointment,” said David Smith, a spokesman for the governor.
In interviews, some lawyers questioned whether the list is still valid for appointments after the commission expires. But Michele Wojciechowski, spokeswoman for the Administrative Office of the Courts, said the matter has been researched by the commission and is not a problem.
“He could wait a year if he wants,” she said.
n Current law says the commission must submit a list of three nominees to the governor. If he rejects all three, the commission submits a new list of three and he must choose one of them. But for the present situation, the commission has announced it will submit two lists of three nominees each — effectively giving the governor six nominees to choose among for each judgeship at the outset.
This provision was the subject of a legal squabble in 2008, when then-Gov. Phil Bredesen rejected the first slate of nominees and the commission at the time responded by including one of the first nominees on the second list — along with two others some thought the governor would be disinclined to appoint. The Supreme Court ruled that the second slate must contain three new nominees.
Ramsaur said there is at least some chance of litigation developing out of the current commission maneuver.
“The worst case (scenario) is to have the judges appointed and there then to be some decision later that their appointment was irregular in some way and have their authority to decide called into question,” he said.