Top judges, evaluation commission members at odds over negative recommendations

The chief justice of the state Supreme Court and the presiding judge of the state Court of Appeals are dissenting from an evaluation commission’s recommendation against keeping one of their appellate court colleagues on the bench.

Chief Justice Gary Wade of Sevierville said in an interview that he believes all three judges receiving negative recommendations from the Judicial Performance Evaluation Commission deserve new terms. Charles D. Susano Jr. of Knoxville, presiding judge of the Court of Appeals, limited his call for reconsideration of the preliminary rejections to Court Court of Appeals Judge Andy Bennett, who he has worked with extensively.

Also receiving negative recommendations were Court of Criminal Appeals Judges Camille R. McMullen and Jerry L. Smith. All other appellate judges including Wade and Susano were recommended for new terms. The commission meets Dec. 6 to make its final decision.

The negative recommendations have raised questions of partisanship and diversity. All the rejected jurists have Democratic backgrounds and almost all the commissioners are Republicans. McMullen is the only black woman among the state appeals court justices.

House Speaker Beth Harwell and Senate Speaker Ron Ramsey, Republicans who appoint all nine members of the evaluation commission, said they believe the panel is “doing what it’s supposed to do” to assure the state’s top judges have top-level qualifications.

“I understand there’s a campaign now to maybe put one of those back on. I don’t agree with that,” said Ramsey, declaring the panel should not bow to “political pressure” and change their minds.

“If the Performance Evaluation Commission says they weren’t doing their jobs, let me assure you — they weren’t doing their jobs! It takes a lot for them to say no,” Ramsey told reporters last week. “As a matter of fact, I think these were the first three that were ever rejected in the history of the Judicial Performance Evaluation Commission.”

Insofar as final recommendations go, Ramsey is correct. There have, however, been past cases of judges getting a preliminary negative recommendation and then announcing a decision to retire instead — as Bennett, McMullen or Smith could do if they wish — and one case of the commission majority changing its mind.

The latter occurred in 2006, when Supreme Court Justice William Koch had a majority negative votes in the preliminary count, based largely on his slowness in deciding cases and writing opinions. But after he sought reconsideration and assured the panel he would strive to improve, a majority voted to recommend him for a new term.

Evaluation Commission member Chris Clem, a Chattanooga attorney and former Republican state representative, said Koch was recommended for retention this year 6-3 in the preliminary vote. He cast one of three negative votes and also voted against recommending Bennett, McMullen and Smith — likely casting more no votes than any other member, he said, but still voting for retention in a big majority of the 24 judges reviewed.

The panel gets background information on each judge as well as the results of separate evaluation surveys of judges, lawyers and staff personnel they work with. There are also get statistics on “turnaround,” the time the judge takes from hearing a case to the time a written opinion is issued and interview each judge individually.

Clem said his negative votes were all cast in cases where the judge had poor survey results in comparison to colleagues, poor turnaround time and interviews wherein they came across nonchalant about shortcomings.

“Anyone who came in front of us with good surveys and good turnaround time on opinions got a good recommendation,” Clem said. “Even the people who came in with bad surveys, bad turnaround — as long as they humbly admitted that they had a problem and that they were committed to improve — well, they passed,” he said.

Wade said that turnaround time is really the only objective data presented to the panel and the rest is “highly subjective,” though perhaps unavoidably so, including the interviews that provide only “a glimpse” of the multiple aspects of a judge’s responsibilities, duties and his or her handling of them.

“A 30-minute interview does not always give you an accurate picture,” the chief justice said, while those who work with them daily have a more complete perspective.

“”I believe every judge in the appellate court system is qualified to serve,” he said, citing the extensive background checks, nominating process and qualifying criteria required to win a seat in the first place and personal observation of all the judges in his current role and his background.

Smith’s rejection for retention was the least surprising, given his arrest on DUI charges last year in Knoxville, as Wade acknowledged. But “by every indication, he has dealt with that appropriately” through an alcohol rehabilitation program and otherwise, Wade said, while his record as a judge since 1995 — with a past recommendations for retention — shows his overall ability.

Though Smith has declined to comment, others say he may opt for retirement rather than contest the negative recommendation.

McMullen, a married mother of two, may have suffered in the evaluation process, Wade said, simply because she is the youngest and least experienced of the appeals court judges. But she is an “extremely intelligent, extremely conscientious and very well-qualified” judge, he said.

“Her potential has not been realized and I hope the commission will reconsider and let her realize that potential,” he said.

Apparently, based on interviews with multiple people involved in the somewhat secretive review process and without reviewing the actual documents, McMullen had lower scores on the surveys and worse turnaround-time review than most other appellate judges, but still was deemed “above average” in the overall survey results.

Outside of her personal qualifications, Wade said, there’s a concern about diversity in an overall view of the appeals court system as a matter of maintaining a judicial system perceived by the public to be unbiased.

“Judge McMullen brings diversity to the appellate courts, both in race and gender,” he said. “I believe it is important to the court system that we have diversity.”

McMullen, who worked for the U.S. attorney’s office in Memphis before being appointed to the criminal appeals court by former Gov. Phil Bredesen, is one of just two women on the 12-member Court of Criminal Appeals and the only black.

For evaluators, however, diversity was apparently not a consideration. Commission members contacted unanimously said so, including Henrietta Grant, a black Democrat who is senior member of the panel — she has served 12 years, most recently appointed by former House Speaker Kent Williams.

“No, no,” Grant said in an interview when asked if diversity should be considered in evaluating a judge. “You’re either capable or you’re not.”

Now retired, the former Knoxville Austin-East High School principal gave an analogy from her past teaching experience: “If you’re white and you can’t read, you don’t pass. If your Asian and you can’t read, you don’t pass. If your African-American and you can’t read, you don’t pass.”

Grant declined to say how she voted on McMullen and said she had her notes on the process shredded. Others said she voted no and was a decisive factor in the decision against McMullen.

One of several lawyers contacting a reporter after an earlier story on the negative recommendations — and asking anonymity, as most did because of concern about appearing professionally before judges — said the commission itself appears in violation of state law on the diversity front because only two of its members are women, who comprise more than 50 percent of the state’s population.

The statute setting up the Judicial Performance Evaluation Commission, which has only two women members, includes this language:

“The appointing authorities for the judicial performance evaluation commission shall make appointments that approximate the population of the state with respect to race and gender.”

That specific point was not addressed in earlier interviews with Ramsey and Harwell, who were not available for comment late Friday.

The rejection of Bennett, who served as deputy state attorney general before appointment to the Court of Appeals by Bredesen, has inspired the most critical reaction. Susano said Bennett stands out among Court of Appeals judges as a pragmatic and thoughtful leader “one of the best among us.”

Wade, who has listened to Bennett argue before him in representing the state as attorney general representative and reviewed his cases on appeal, said Bennett’s role as “teacher” and “historian” were understandably omitted in the evaluation process, but are nonetheless important.

“He is dependable as can be and as steady as a rock,” Wade said.

Wade said, for example, the commission’s recommendation ignores Bennett’s role as the designated coordinator in a complicated, five-year plan to centralize state court functions in one location.

One member or the evaluation commission who voted against retention of Bennett, Nashville attorney Joseph “Woody” Woodruff, has also served as attorney for Gov. Bill Haslam — most notably when the governor was accused by former state Democratic Party Chairman Chip Forrester of breaking state campaign finance laws through personal payments to lobbyist Tom Ingram. The Registry voted to dismiss the charges.

In two cases where Bennett wrote Court of Appeals opinions, the ruling went against Woodruff’s clients in key aspects. The Supreme Court subsequently overruled Bennett’s opinions on crucial and technical points.

Both cases involved very complicated disputes, one where Woodruff represented developers against a homeowners association in a quarrel over land use rights and the other where he represented one side in an argument between relatives over business-related loans and other financial transactions.

Woodruff said he feels it inappropriate to publicly discuss any specifics of those cases or the relevance to his vote against Bennett’s retention — and the other judges spurned — beyond a general contention that the preliminary votes were a nonpartisan, thoughtful overview of the judges’ qualifications.

“I believe that the process was fair, comprehensive and completely free of politics,” he said.

If the negative recommendations stand in the final vote on Dec. 6, the spurred judges may still seek a new term, but they will be subject — unlike recommended judges who face a yes-no retention referendum — to opposition in a contested election. The state Republican or Democratic parties could thus nominate a candidate to oppose the judges with a negative recommendation.

Members of the evaluation commission interviewed insisted uniformly that they d0 not even know the political affiliation of the judges interviewed and that was a consideration.

“I can tell you absolutely that wasn’t considered by anybody on the commission,” said Republican Clem. “If anybody there is partisan, I’m partisan. And it never came up. It was just on their merits.”

“I can tell you absolutely that wasn’t considered by anybody on the commission,” said Republican Clem. “If anybody there is partisan, I’m partisan. And it never came up. It was just on their merits.”

“I have have no idea who the Republicans are or Democrats are,” said Grant. “It was all based strictly on the data.”