Chief Justice Lee’s letter to lawyers brings protests from Amendment 2 foes

State Supreme Court Chief Justice Sharon Lee is urging lawyers across the state to use their influence with other residents to promote passage of Amendment 2, drawing protests and a call for her resignation from opponents of the proposed change to the state constitution.

In a letter sent via email to all members of the Tennessee Bar Association, Lee said that her high school math teacher and “many others” have contacted her seeking explanation and advice on how to vote on Amendment 2, “once again illustrating that voters do listen to lawyers and judges for guidance on issues relating to the law and our court system.”

“With two weeks remaining in this election, it is important to remember that your opinion matters to your friends, neighbors, clients and colleagues who will be going to the polls,” she wrote. “I hope that during this election you will take the time to consider the importance of Amendment 2, encourage those around you to vote and remember that your opinion matters.”

Amendment 2 would repeal a provision in the Tennessee Constitution declaring that the state’s top judges be “elected by the qualified voters of the state” and replace it with language allowing the governor to make the initial appointment of judges, subject to confirmation by the Legislature, followed by a “retention election” allowing voters to decide whether the appointed judges get new terms.

The system set up by the amendment, except for legislative confirmation of gubernatorial appointees, is similar to the system now in place. But that system has been subject to ongoing criticism as a violation of the state constitution as it now reads, despite state Supreme Court rulings that declare a “retention election” provides voters with a voice meeting the constitutional mandate for the judges being “elected by the qualified voters.”

John Jay Hooker, a Nashville lawyer who has been filing lawsuits challenging the gubernatorial appointment system for decades, Friday filed a motion in his latest litigation that says Lee should resign from the court because she has violated judicial ethics through the letter. He contends in the motion that, if she refuses, the letter could be considered “an impeachable offense,” warranting her removal from office by the state Legislature.

John Avery Emison, state coordinator of the “Vote No on 2” campaign committee, wrote Lee a letter demanding she withdraw her endorsement of Amendment 2. He told Lee the endorsement was “self-serving in the extreme in that passage of Amendment 2, as you very well know, means that you and your colleagues will be allowed to run unopposed in a ‘rubber stamp’ retention election.”

“You have chosen to inject politics into the debate about Amendment 2 and subject the Supreme Court to the charge of hypocrisy over your own selfish interests. It was your choice to send an endorsement message to the lawyers of this state that was intended to chill their participation against the amendment,” Emison wrote.

Lee “stands by the statements she has made regarding Amendment 2,” said a spokeswoman in replying to a request for the chief justice’s response to Emison’s letter. There will be no other comment from Lee, said Michele Wojciechowski, communications director of the Administrative Office of the Courts.

Hooker’s filing of a legal complaint would apparently trigger judicial conduct rules severely restricting what she can say.

Note: Here’s a copy of Lee’s letter:
October 22, 2014

Dear Fellow Tennessee Lawyers:

When early voting began, I received an unexpected phone call from my high school math teacher. He was seeking my opinion and advice regarding Amendment 2, and I told him that I am voting yes on 2. Many others have contacted me with questions about Amendment 2 during the past few weeks, once again illustrating that voters do listen to lawyers and judges for guidance on issues relating to the law and our court system. During the 26 years I practiced law in Monroe County before becoming a judge, I experienced over and over again the trust that people place in their local lawyers. With two weeks remaining in this election, it is important to remember that your opinion matters to your friends, neighbors, clients and colleagues who will be going to the polls.

Community leaders and organizations from all across the state have come together to build an unprecedented, bipartisan show of support for Amendment 2. Groups supporting Amendment 2 include the Tennessee Bar Association, Tennessee Farm Bureau Federation, Tennessee Chamber of Commerce & Industry, Tennessee Sheriffs’ Association, NAACP of Tennessee, League of Women Voters of Tennessee, Tennessee Lawyers’ Association for Women, Tennessee District Attorneys General, Tennessee District Public Defenders, Tennessee Voices for Victims and many others.

Amendment 2 strikes the right balance between preserving an independent, diverse, and qualified judiciary, while ensuring it is accountable to the people it serves. Although no method for selecting a judge is perfect, I believe passing Amendment 2 is the right choice for Tennessee and will protect the long-term integrity of Tennessee’s justice system.

At every election, I’m reminded of the lesson I learned from my father who served his country in WWII. His sacrifice and the sacrifices of so many others to defend our right to vote and to choose the way in which we are governed taught me to never take this right for granted. Our judiciary is a vital part of our government that protects the liberties we enjoy and upholds the rule of law fairly and equally for all Tennesseans. I hope that during this election you will take the time to consider the importance of Amendment 2, encourage those around you to vote and remember that your opinion matters.

Sincerely,

Chief Justice Sharon Lee

Here’s a copy of Emison’s letter
:
Hon. Sharon Lee, Chief Justice
Tennessee Supreme Court

Dear Chief Justice Lee:

I am writing you to inform you that I strongly object to your endorsement of Amendment 2. With all due respect, I believe you have abused you office and that you should immediately withdraw the email message below which, as stated, was sent to every lawyer in Tennessee who is a member of the Tennessee Bar Association. Your endorsement is self-serving in the extreme in that passage of Amendment 2, as you very well know, means that you and your colleagues will be allowed to run unopposed in a “rubber stamp” retention election, which to my knowledge neither you nor other members of the Court have disclosed.

Furthermore, I believe it is improper for you and your colleagues to take a position on a matter which is certain to be questioned in the courts of this State. You and your colleagues’ endorsement has taken the matter out of your hands and ensured any such questions will be decided by a specially appointed Supreme Court which is beholden to no one other than the Governor. Certainly, that is not in the best interest of justice. Your endorsement of Amendment 2 to “Tennessee lawyers” is also improper as you have the highest position of supervision and professional discipline of lawyers. Surely the implications to every attorney’s livelihood is not lost on even the slowest lawyer in the State.

As state coordinator for the Vote NO on 2! committee, I have made joint presentations with various speakers chosen by the Vote Yes on 2 organization. One of those speakers was Ms. Linda Knight who on two separate occasions (one of which was recorded), when arguing why Amendment 2 is needed, made the following statement: “Judicial candidates and Judges can’t state their positions on issues.” Yet, this is precisely what you have done. In the words of those who support Amendment 2, you “can’t” do what you have done. As a non-lawyer I will leave it to you, Ms. Knight, and the Vote Yes on 2 organization to determine whether your endorsement violates judicial ethical requirements, or whether as a practicing attorney Ms. Knight’s comments on the law and the courts were deliberately misleading to the public.

You have chosen to inject politics into the debate about Amendment 2 and subject the Supreme Court to the charge of hypocrisy over your own selfish interests. It was your choice to send an endorsement message to the lawyers of this State that was intended to chill their participation against the amendment. Therefore, I demand you withdraw it immediately.

John Avery Emison, Ph.D.
Author, and State Coordinator for Vote NO on 2!
P.O. Box 163
Alamo, Tennessee 38001