GOP Senate leaders ramp up in Supreme squabble, Harwell & Haslam lay low

Inspired by the dismissal of a complaint lodged against state Supreme Court Chief Justice Gary Wade, Republican state Senate leaders have gone beyond Lt. Gov. Ron Ramsey’s call for voter rejection of Wade and two colleagues to urge slashing the court’s overall powers.

But other state Republican leaders, notably including Gov. Bill Haslam and House Speaker Beth Harwell, have balked even at joining Ramsey’s crusade to have voters reject new terms for Supreme Court Justices Cornelia Clark, Sharon Lee and Wade in an Aug. 7 retention election.

The governor was asked last week whether his refusal to take a position on re-election of the three justices, all appointed by his Democratic predecessor, puts him on a collision course with Ramsey.

“I wouldn’t call it a collision,” he replied. “Lt. Gov. Ramsey has some opinions about how that should work. I don’t quite see everything that same way. He has a right to pursue that. … I won’t get involved.”

Harwell, in an emailed reply to a reporter’s question on her position on retaining the three justices, said she, too, is not getting involved in any judicial races because “I’m 100 percent focused on campaigns for our House Republicans.”

Haslam said that, since he would appoint successors to the three justices if they were defeated, it would be inappropriate for him to get involved. The governor added that he has “an outstanding working relationship” with the three judges and has known two of them on a friendly basis — East Tennesseans Wade and Lee — “for a very long time.”

Among Republican senators, however, criticism of the Supreme Court under the current justices is expanding beyond Ramsey’s contentions that it is “soft on crime” and “anti-business” in court decisions — a claim strongly disputed by court defenders.

Last week, Senate Government Operations Committee Chairman Mike Bell, R-Riceville, declared he had originated what was treated as an anonymous complaint against Wade by the Board of Judicial Conduct, the panel responsible for disciplining judges for ethical violations.

In a letter to the board’s chairman, Shelby County Criminal Court Judge Chris Craft, Bell blasted the dismissal of his complaint as an example of “an insular culture of cronyism and obfuscation” that legislators have allowed to continue because they were “insufficiently engaged” in the past.

“I can assure you lack of engagement will not be a problem in the upcoming legislative session,” Bell wrote.

Ramsey and Senate Finance Committee Chairman Randy McNally, R-Oak Ridge, say they agree with Bell.

“I have as much confidence in them as I have in (convicted Ponzi scheme mastermind) Bernie Madoff,” McNally said in an interview, speaking of the panels that evaluate judges and discipline them.

“I think they have functioned over the years to whitewash the problems of judges and the lawyers,” he said.

Bell, McNally, Ramsey, Senate Judiciary Committee Chairman Brian Kelsey, R-Germantown, and perhaps other Republican senators have tentatively scheduled a news conference Tuesday to amplify on their viewpoint. Without being specific, Bell said there are also plans for legislators to take a “closer look” at the judicial system.

McNally noted that he sponsored a bill this year (SB2322) that would strip the Supreme Court of authority over the Administrative Office of the Courts, which oversees judicial operations statewide, and instead place it under the state comptroller, who is appointed by the Legislature. The bill would also abolish the current board that evaluates judges and disciplines them, creating a new board with six of its seven members appointed by legislators and one by the governor. Bell said he is considering a bill that would place a new board directly under legislative supervision.

The complaint

In an interview, Bell said his clash with the judiciary began when he contacted the BJC’s disciplinary counsel, Timothy Discenza. Bell had read a Nov. 10 News Sentinel report on Wade praising the performance of three appellate court judges who, at the time, had received tentative negative recommendations from the Judicial Performance Evaluation Commission. Bell thought Wade’s comments amounted to an endorsement of the judges in violation of a rule declaring judges cannot endorse a candidate for public office.

Discenza told him, Bell said, that if he simply sent a copy of the article to the BJC it likely would be investigated as an anonymous complaint. Bell said he chose that route “as the least confrontational way” of having the matter reviewed. The BJC did investigate and found no violation of the rule — basically because the appellate judges supported by Wade were not legally “candidates” at the time under the meaning as used in the rule involved.

Still, Craft wrote in a letter to Wade, “some members of the public might reasonably conclude” that they were candidates. The letter was initially kept confidential under standard BJC rules, but Wade — at the request of WTVF-TV in Nashville — signed a waiver of confidentiality after Ramsey recently told reporters he believed Wade had been “reprimanded” for his comments.

Bell says the dismissal is illustrative of the “cronyism” that results from “judges judging judges.” A majority of the panel’s members are judges — also the case at the JPEC, which Bell contends has been a “rubber stamp” in recommending new terms for the appellate judges it evaluates.

Bell further contends that Wade’s reported comments in support of the three appellate judges were part of an “orchestrated” campaign to reverse the tentative negative JPEC recommendations for Court of Appeals Judge Andy Bennett and Court of Criminal Appeals Judge Camille McMullen — the rest being conducted privately by lobbying JPEC members. JPEC subsequently reversed the tentative negative recommendation for the two and recommended new terms for both.

The Senate committee chairman said a member of JPEC, asking not to be identified, has detailed the quiet lobbying campaign. Bell provided a memo from the JPEC member saying there were multiple contacts to members from lawyers and judges — including one case wherein Wade personally called JPEC Chairman Bob Jones, a Circuit Court judge from Columbia, Tenn., and that Jones was “upset.”

Wade, through a spokeswoman, said he does not recall such a call. Jones said in an interview that, after seeing the November News Sentinel report, he called Wade to “caution” the chief justice that such remarks might be construed as an endorsement of a candidate, as prohibited by the ethical rules.

“I initiated the call. … I told him he ought to be careful. … I was not upset,” Jones said, adding that he subsequently told other JPEC members about the conversation and some may have misconstrued his comments.

Judging judges

Craft and Jones — both Republicans — said there is a fine line for judges to walk in any political dealings. Craft said he knows “offhand” of no rule that would prohibit a judge from voicing an opinion about another judge to JPEC. Jones noted that JPEC, as part of the evaluation process, sends questionnaires to judges seeking their views on appellate court colleagues.

As for the ban on endorsements by a judge, Craft said it is possible the U.S. Supreme Court would strike down the provision if it were challenged in court as an infringement on judges’ free speech rights, though the board strictly follows the rules set in Tennessee. And Jones noted that he and other judges serving on JPEC are arguably required by law to violate the judicial ethics provision.

State law requires JPEC members to vote on recommending a judge for a new term. When they do so, Jones said, they are effectively endorsing the judge — or rejecting him or her, also a violation by taking a position — contrary to the judicial conduct rule.

“I may have violated the provision I cautioned Justice Wade about,” Jones said.

Ramsey said in an email response to an inquiry about Bell’s commentary:

“I support Chairman Bell wholeheartedly and unequivocally. His concerns about the Board of Judicial Conduct are well-founded. I am proud of Mike for stepping forward to ensure that there is some degree of transparency and accountability applied to the state Supreme Court.”