McNally: Attorneys’ opinion shows Supremes ‘bitten by their own dog’ on no-politicking rule

By adopting a stricter rule against judicial politicking than a national model, Tennessee Supreme Court justices may have set a standard that three are now violating as they seek re-election to new terms, according to attorneys for the state Legislature.

A spokeswoman for the justices disputes the opinion and says it is “being used as additional fodder for a wholesale attack against the independence of our Tennessee Supreme Court.”

In a legal memorandum written at the request of Senate Finance Committee Chairman Randy McNally, R-Oak Ridge, legislative staff attorneys suggest that even joint appearances at fundraising events, joint pictures appearing on campaign websites and joint travel to events as they seek re-election can be construed as the judges endorsing one another. (Note: A pdf of the opinion is available by clicking on this link: mcnallymemo )

Chief Justice Gary Wade and Justices Cornelia Clark and Sharon Lee have engaged in all those activities as they seek new terms on the bench in a statewide Aug. 7 retention election, with Lt. Gov. Ron Ramsey and some conservative activists urging their defeat in the yes-no vote. All were appointed by former Democratic Gov. Phil Bredesen and, if they are defeated, their successors would be appointed by Republican Gov. Bill Haslam.

They also have an informally coordinated joint campaign organization, Keep Tennessee’s Courts Fair, that organizes fundraising events where donors write checks to each individual justice’s campaign committee and the campaign committees split equally the expenses incurred, according to joint spokeswoman Carol Andrews.

The memo says that, while there are no legal opinions specifically addressing the Tennessee rule on judicial political activity adopted by the Supreme Court in 2012, opinions in states with a similar rule — notably Florida — interpret the prohibition against judges endorsing any candidate for public office very strictly. Judges must avoid any activity that “creates the impression” of judges supporting one another and they “must not appear to run as a slate,” according to Florida opinions cited in the memo.

“I think it’s clear — and it should be clear to everyone — that there is a coordination of the campaign activities (by the three justices) that would amount under current law and rule to an endorsement and that is prohibited under the rules they adopted,” McNally said. “It’s sort of like them being bitten by their own dog.”

The legislative lawyers’ opinion notes that a model code suggested for state adoption by the American Bar Association includes a provision allowing more latitude for an endorsement by judges “running for the same office.”

“By intentionally omitting this provision from the revised Code of Judicial Conduct, the Tennessee Supreme Court may have signaled a stricter application or interpretation of the code as it relates to merit retention election campaigns,” the memo says.

The memo comes with a complaint already filed on the same subject with the Board of Judicial Conduct — which disciplines judges for rule violations — by George Scoville, a Nashville business and political consultant who describes himself as a libertarian on political issues. Scoville and McNally say they acted independently of each other. (Note: Previous post HERE )

It also comes with the Senate Government Operations Committee planning a public hearing Tuesday on the BJC and the Judicial Performance Evaluation Commission. The committee chairman, Sen. Mike Bell, R-Riceville, contends that Wade violated the rule against endorsing candidates by saying last year that he believed the three appellate court judges deserve new terms at a time when JPEC members had made a tentative recommendation against them. Bell also questions whether Wade inappropriately lobbied members of JPEC, which later reversed the tentative decision and recommended new terms.

Bell last November sent BJC a copy of a News Sentinel article on Wade’s comments and the BJC treated it as a complaint, which was subsequently dismissed because, the panel decided, the appellate court judges Wade praised were not candidates for public office at the time — merely seeking a positive evaluation as potential candidates — and his comments were thus not an endorsement. Wade and JPEC’s chairman, Circuit Court Judge Bob Jones of Columbia, have said the chief justice did not lobby members of the panel.

The BJC dismissal of Bell’s complaint became public after Wade signed a release from BJC rules that require secrecy on complaints unless the board decides discipline of the offending judge requires a public disclosure.

Chris Craft, a Shelby County Criminal Court judge who presides over the BJC, said those same rules prohibit him from discussing any pending complaint or specifics about how they might be resolved. Craft said he cannot even confirm a complaint has been filed, though Scoville has posted his filed complaint — with commentary — on a website. Scoville disagrees, saying his reading of the rules indicates Craft could respond once a complaint is in the public realm.

Craft did say in an interview that the rules place judges in an awkward situation and that he will attend the Tuesday Senate committee hearing.

“Judges are not supposed to be political, but they have to get re-elected,” said Craft. “You can have people who are great judges and not very good politicians, so they don’t get re-elected.”

In a May interview in Cookeville with TNReport, an online Tennessee news website, Wade was asked if he was campaigning with his two colleagues as “kind of as a team.”

“Absolutely,” Wade replied. “While we are all very, very different and definitely have our own ideas about the administration of the court system, we work very hard on building a consensus on all of our opinions.”

Asked if he was then supporting retention of Clark and Lee, Wade replied that because of the rules “I can’t specifically say I support them, but I can praise their work.”

“I can tell you without reservation that Justice Lee and Justice Clark are two of the hardest-working people I’ve ever known and they are certainly devoted to the people of Tennessee,” the chief justice said.

Craft and Scoville said the rules forbidding judges from making political endorsements might well be struck down by the U.S. Supreme Court if the issue came before the justices in Washington. But Craft said the BJC is obliged to follow Tennessee law and rules as they stand today.

The justices and supporters — including some Republicans — have repeatedly stressed the need for the court to be apolitical. Ramsey and other critics contend they should be defeated because Republican replacements would be more likely to support business interests in decisions, less “soft on crime” and to replace the current state attorney general, Democrat Bob Cooper, with a Republican more supportive of businesses.

The three justices previously would all respond to media inquiries individually, but now ask that their comments come through spokeswoman Andrews. In response to a reporter’s request for comment on the legislative staff memo, she sent this email:

“The activities of each of the justices is in full compliance with the Code of Judicial Conduct. The opinion, while acknowledging that there is no definition of ‘endorse’ in the code, nevertheless takes the language of Rule 4.2 of Canon 4 out of context. It is disappointing that the opinion is being used as additional fodder for a wholesale political attack against the independence of our Tennessee Supreme Court. Politics have no place in our courts. Our Tennessee Constitution must be upheld and our rights protected.”