There seems to be confusion over when the successor to state Supreme Court Justice Gary Wade will face a retention vote in a statewide election after he or she is appointed by Gov. Bill Haslam, reports Richard Locker. (Note: It might be 2016; it might be never.)
Prior to last November’s ratification of a new judicial amendment to the state constitution, the answer was clear: The governor’s appointee to a vacancy on the state Supreme Court, the Court of Appeals or the Court of Criminal Appeals would appear on the ballot at the next statewide August election for a “retain” or “replace” vote by the public. The appointee could serve no more than two years without a direct public vote.
But the new amendment altered the judicial selection process, and opponents of the amendment criticized the new wording as vague and confusing regarding the timing of retention elections for appointees filling vacancies on the court.
…The governor’s office said Monday that “it’s unclear at this time” when a retention election will occur. “We anticipate the General Assembly will address the question when they reconvene early next year,” said Laura Herzog, the governor’s deputy director of communications.
The chief legislative drafter of last year’s Amendment 2, state Sen. Brian Kelsey, R-Germantown, said Monday, in an email response to questions regarding the upcoming appointment, that Wade’s successor will not be subject to a retention election until 2022, the end of the current eight-year judicial term. That would give the successor nearly seven years on the state’s high court bench without a direct vote by Tennesseans. (Note: And, of course, under that scenario, if the judge decides not to seek another term, he or she would thus never face a vote.)
But at least twice before last November’s constitutional referendum, Kelsey publicly said that an appointee filling a vacancy on the court would be subject to a retention election at the next August statewide election.
During the campaign for the constitutional amendment last fall, Kelsey appeared at a Sept. 20 forum in Nashville and said, in response to a question from Amendment 2 critic John Jay Hooker: “As Mr. Hooker knows full well, there are two other sections of our state constitution that talk about the election of judges … so if it’s a vacancy, the retention election would occur at the following, at the next even-year August election. If it’s a full term, the retention election would occur at the end of the eight-year term.”
And in a Senate floor debate on Feb. 21, 2013, on the resolution that put Amendment 2 on the ballot, Kelsey said in response to a question about the timing of retention elections asked by then-Sen. Stacey Campfield, R-Knoxville:
“At the end of the eight-year term for a full term or at the next August election for a vacancy, there would be a retention election under the language of this constitutional amendment.”
…John Avery Emison, who helped run last year’s Vote No on 2 campaign against the judicial amendment, said Monday he hopes the “governor will make the right decision” and declare that his appointee is subject to a retention election in August 2016.
Emison, who lives in Crockett County, cited an email he received last Oct. 11, just before the referendum, from prominent Nashville lawyer Lee Barfield, in response to Emison’s questions to Haslam about retention elections for appointees filling judicial vacancies if Amendment 2 passed.
Barfield, who played a lead role in the Yes on 2 campaign in support of the judicial amendment, said in that email: “ If Amendment 2 is adopted by the voters, a person appointed by the governor to fill a vacancy must stand for retention election by the voters at the next biennial election unless the vacancy occurred less than 30 days prior to the biennial election, in which case the judge will face a retention election in the second biennial election after the vacancy occurred.”