On the Supreme TN political rule changes

In the aftermath of record spending by three justices in last year’s campaigns, the Tennessee Supreme Court last week revised the rules for judicial politicking, allowing judges to start campaigning earlier and easing restrictions on campaign trail conduct.

Three justices will also be up for a yes-no retention election in August 2016, state election officials have decided, although there has been some uncertainty over the timing.

The 2016 campaigns might not be as combative as the 2014 contests, which saw three justices appointed by former Gov. Phil Bredesen facing charges they were “liberal Democrats.” In 2016, the three justices will all be appointees of Republican Gov. Bill Haslam — Jeff Bivens of Franklin, Holly Kirby of Memphis and a justice who will be appointed soon by the governor.

Chief Justice Sharon Lee would not agree to be interviewed on the rule changes, which were announced Wednesday via a news release that stressed judges will still face far more restrictions on politicking than other public officials.

But others uniformly agreed the rule revisions amount to a court response to the successful but troubled campaigns of Lee, Justice Cornelia Clark and former Justice Gary Wade last year.

“It was an awkward situation last year,” said Wade, who had ethics complaints filed against him for allegedly violating a now-abolished rule forbidding judges from endorsing any other candidate for public office.

The new rule lets judges endorse — or oppose — candidates running for judicial positions, but not in other races for other political offices.

“They ran for re-election on keeping politics out of the court system, and now they’ve just injected politics into the court system,” said George Scoville, a Nashville-based blogger who filed complaints against Wade and other judges last year.

The complaints were all dismissed by the state Board of Judicial Conduct, although in one case officials told Scoville in a letter he had “raised an area of concern” — Wade implicitly endorsing colleagues for reelection — although it “did not rise to the level of judicial misconduct that is required for disciplinary action.”

Besides authorizing judges and judicial candidates to make endorsements of other judicial candidates — or declare their opposition to them — other rule changes include:

Judicial candidates are explicitly authorized to seek endorsements from others for themselves and to comment on their candidacy “in any medium,” effectively providing exceptions to other language in the state Code of Judicial Conduct that some have seen as restricting such activities.

Judges previously were not allowed to set up campaign committees, which can raise money on their behalf, until 180 days before an election. The new rule allows the launch of a campaign committee a year ahead of time.

While a general ban on judges directly soliciting campaign money for political parties and candidates in other races remains, the new rules provide an exception allowing solicitations on behalf of family members.

The new rule explicitly declares that judicial candidates “may group themselves into slates or other alliances to conduct their campaigns more effectively.” Such a joint campaign committee can have a separate campaign bank account from the candidates.

The new rule deletes language from the previous version on requiring judicial candidates to personally file campaign disclosures and “swear or affirm the truth” of the information within, leaving such tasks to a campaign treasurer.

This sentence is added under the new rule: “No judicial candidate may also simultaneously be a candidate for an elected nonjudicial position.” There remains a separate provision, known as “resign to run,” that requires an incumbent judge to resign in most circumstances if becoming a candidate for another office.

Tennessee Bar Association Executive Director Allan Ramsaur said the lawyer group supports the revisions, and he believes the measures will clarify “conflicting provisions” that cause “a lot of the confusion” that developed in the 2014 campaigns.

“They were drawn into battle last year, and this is part of the result,” Ramsaur said.

Last year, the three incumbent justices together raised and spent more than $1.4 million in convincing a majority of voters to keep them on the bench for eight more years. Opponents spent almost $1 million attacking them, with most of that money coming from Lt. Gov. Ron Ramsey’s political action committee. It was the first time the million-dollar threshold had been crossed in a Tennessee judicial campaign, although candidates for governor and U.S. senator have often crossed the $10 million mark.

“I think any reasonable observer would interpret these rule changes as an admission that last year’s retention campaign by the justices did not embrace the spirit of the rules in place at the time,” Ramsey said in an emailed statement. “But I am not interested in looking back, only forward.

“Tennessee — for the first time in modern history — has a Republican attorney general and will soon have its first-ever Republican Supreme Court majority. That is the kind of institutional change in the courts that will ensure Tennessee remains the best state in the nation in which to live, work and raise a family.”

The incumbent justices were also roundly criticized last year by other groups — notably including Americans for Prosperity — that take advantage of provisions in campaign finance laws to keep their spending undisclosed. An AFP spokeswoman said last week the group will not voluntarily disclose what it spent on radio ads and direct mail to “educate the public on the liberal records” of the Democratic justices and the attorney general they appointed.

Wade, who in September resigned from the court to become dean of the Lincoln Memorial University Law School, said he would ideally like to see judges run on a nonpartisan basis. In Tennessee, some local judges run in partisan contests — the state Republican Party encouraged this as part of its “Red to the Roots” campaign — while others run on a nonpartisan basis, varying from county to county.

The Supreme Court justices and other appellate court judges theoretically run in a nonpartisan retention election, but Wade observed the incumbent justices were attacked on a “purely partisan basis” and that some local judges are apparently chosen on the same basis. He cited the defeat of former Knox County Chancellor Daryl R. Fansler, “a really excellent judge recommended by the bar association … not to disparage the young man who beat him.” Fansler, designated a Democrat on the ballot, was defeated by Republican Clarence “Eddie” Pridemore, who has encountered some controversy and criticism on the bench.

Still, Wade said, the rules are reasonable steps “given today’s political challenges” for judges facing hostile opposition, sometimes from organized groups that do not face the same restrictions on commentary that judges must follow. A provision remains in place, for example, that prohibits a judicial candidate from “knowingly” making a false or misleading statement or commenting on “cases, controversies or issues” likely to come before the court.

In some ways, Wade said, “we were sort of hoisted on our own petard.” The Supreme Court justices had tightened the rules on political activity in a 2012 revision, including adding the ban on endorsements of other judicial candidates.

The 2014 Scoville complaint against Wade that the state board acknowledged raised a concern involving Wade’s campaign paying for a billboard in his hometown of Sevierville that carried the words, “Retain your Tennessee Supreme Court.” Scoville contended that, since Clark and Lee were also members of the court and seeking re-election at the time, the justice had thus effectively endorsed them.

Scoville said the adopting of new rules and Wade’s resignation as a justice a year after winning re-election shows he was correct in his criticism and that Wade sought a new term “to use his star power to raise money and draw support for the other Democrats on the bench.”

Wade said he had loosely planned not to seek a new term until Ramsey and others declared they would oppose him and the other justices, whereupon he decided to seek re-election.

“Where I come from, you don’t back down from a challenge,” Wade said.

Just before he left the bench, Wade wrote a dissenting opinion in a case where other justices decided to accept the Legislature’s rewriting of a Supreme Court rule. In effect, the statute makes it easier to dismiss a lawsuit through summary judgment without going through a trial. Wade said the judicial branch of government was bowing to the legislative branch, perhaps in violation of the separation-of-powers doctrine in a manner that “strikes at the very heart of this court’s exercise of judicial power.”

Wade would not elaborate on his written comments in the case other than to say it was “one of the most painful decisions I have ever made” in disagreeing with fellow justices. Some have seen the majority decision as an attempt to avoid any conflict with Ramsey and others in the Legislature’s Republican supermajority, even if that means giving up some of their authority to issue rules governing courtroom conduct.