Evaluation Commission recommends against new terms for three appeals court judges in preliminary vote

In a preliminary vote, a majority of members on the commission that evaluates the performance of Tennessee’s top judges has recommended against new terms for two judges on the state Court of Criminal Appeals and one on the Court of Appeals.

The three tentatively receiving negative recommendations are:

–Court of Criminal Appeals Judge Jerry L. Smith of Nashville, a former deputy state attorney general who was first appointed to the court in 1995. Smith was arrested April 23, 2012, by Knoxville police on Cumberland Avenue about eight hours before he was to join other judges in hearing cases. He entered a guilty plea to a DUI charge in June and was sentenced to 48 hours in jail and, according to a statement issued at the time, went through a rehabilitation program and publicly apologized.

–Court of Criminal Appeals Judge Cammille R. McMullen of Memphis, who formerly worked for the U.S. Attorney’s Office in West Tennessee. When appointed to the bench in 2008, she became the first black woman to serve as an judge on Tennessee intermediate appellate courts.

–Court of Appeals Judge Andy D. Bennett of Nashville, a former chief deputy to the state attorney general appointed to the appeals court in 2007.

The terms of all five state Supreme Court justices, 12 Court of Appeals judges and 12 Court of Criminal Appeals judges expire in Aug. 31, 2014. Five of the appellate court judges have announced they will retire at the end of their terms. The rest will face a yes-no vote statewide Aug. 4 on whether they should get another eight-year term in office.

The Judicial Performance Evaluation Commission completed its initial review of the remaining 24 jurists records and interviews with them Oct. 25. The nine-member panel then took preliminary votes on each with 18 receiving unanimous recommendations for new terms.

On the the six others, there were split votes with a majority recommending retention in three cases. But a majority voted against new terms in the cases of Bennett, McMullen and Smith, Administrative Office of the Courts spokeswoman Michele Wojciechowski confirmed.

The three judges were notified of the negative recommendations this week. They can now ask the commission to reconsider the recommendations. The panel meets again on Dec. 6 to hold formal vote and either positive or negative recommendations can be changed at that time. A final written report on all judges is to be published in newspapers around the state next July.

“As far as I know, it’s preliminary and I think it would be inappropriate for me to comment,” said McMullen on Thursday.

Bennett and Smith similarly declined comment when contacted by a reporter.

Officials contacted declined to give reasons for the negative evaluations, though that will ultimately be a part of the final report when published.

Bennett and McMullen, still in their first terms on the bench, have not faced evaluation before. Smith had received a unanimous positive recommendation for a new term in a 2006 evaluation.

Circuit Court Judge Robert L. Jones of Columbia, chairman of the commission, said Thursday that the nine panel members cast a total of 216 votes on the 24 judges reviewed and only 23 of those were negative or abstentions.

“The commission has overwhelmingly positive views of Tennessee’s incumbent appellate judges,” he said. “There were barely 10 percent negative votes spread among six judges and all of that is subject to change between now and the publication of our results.”

Under state law, a judge receiving a final negative recommendation may still seek reelection, but would be subject to a challenge by one or more opponents in a contested election – perhaps with political parties nominating candidates.

That has not happened since the current system of retention elections for appellate judges was put into place, though there have been instances of a judge deciding to retire rather than seek a new term after learning of a preliminary negative vote by the evaluation commission.

The five appellate court judges who have already announced an intention to retire when their current term ends include Supreme Court Justice Janice Holder and Court of Appeals Judge David R. Farmer. A commission has been set up by Gov. Bill Haslam to recommend to him nominees for appointment to as their successors.

Haslam has already appointed judges to succeed three other appellate court judges who announced plans to retire next August, choosing the successors for nominees submitted by the Judicial Nominating Commission before if officially ceased to exist on June 30. Those three judges will not be evaluated by the evaluation commission.

At least two lawsuits are pending that challenge the current selection process.