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evaluate the “performance” of
our appellate state judges.1 Over a
year and a half ago, the Commis-
sion received survey responses
by attorneys, judges, and court
personnel and then conducted
personal interviews with each of
the appellate judges who sought
to stand for re-election. During a preliminary vote by the Com-
mission, one Court of Criminal
Appeals judge and one Court of Appeals judge failed to receive majority votes, even though none of the judges and jus- tices who had applied for retention status received less than a 4.1 overall rating on
a 5.0 scale, scores which qualified from good to excellent. When contacted by the media, I (following the oft-quoted Lin- coln warning, “To sin by silence, when we should protest, makes cowards out of men”) made favorable comments about the ability and integrity of the two judges at issue. They deserved my commenda- tion. After all, it is the primary task of the supreme court to qualitatively review the work product of the intermediate courts.
Of course, no good deed goes unpun- ished. An “anonymous” legislator forwarded a copy of the news article to the disciplinary counsel for the Board of Judicial Conduct, a body which may impose sanctions for the misconduct of any judge in the state. The implication
“Open and accessible courts are fundamental to a government that is of the people, by the people, and for the people.”
was that I had endorsed the candidacy
of the two judges at issue in violation of one of our Supreme Court Rules. The Board summarily found no wrongdoing, concluding that my remarks addressed the quality of the judges’ work and, therefore, fell within an area protected by the rule: “a judge shall act in a manner that promotes public confidence in the independence, integrity, and impartial- ity of the judiciary.” Of greater impor- tance, however, is that the JPEC, upon receiving documentation of the timeli- ness and quality of each judge’s body of work, reversed its initial assessment and awarded “passing grades” to each of the two judges in their final vote. In sum- mary, despite my resolve not to comment on issues that might come before the courts, I do think it is proper for judges to occasionally address issues relating to the administration of justice and to speak favorably of colleagues in furtherance of
the integrity of our judiciary. Sheer gratitude qualifies
as another reason that I feel comfortable about accepting Cityview’s invitation to express my thoughts on the top priorities of our state supreme court. Last year, Cityview featured Justices Connie Clark, Sharon Lee, and me in its July/August publica- tion—providing what turned out
to be positive coverage for our retention election. I hope that my modest observa- tions might encourage readers to reflect upon the importance of our courts, the right of the people to access our courts, and the obligation of the judiciary to provide level playing fields to all litigants, regardless of race, religion, political partisanship, or the ability to pay—the latter being the primary subject of my commentary.
Due Process and Open Courts
I start with the proposition that open and accessible courts are fundamental to a government that is of the people, by the people, and for the people. The concepts of due process of the law and individual rights have a foundation in the Magna Carta, which provides that no one “shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed
or exiled, or deprived of his standing
1 Adopted through the leadership of former Lt. Governor John Wilder, I thought the Tennessee Plan for the selection and retention of appellate judges was a good one. A nominating commission first assessed the credentials of a variety of applicants for an open judgeship, cut the list to three, and then passed the nominees to the Governor, who had the ultimate responsibility to appoint. The legislation had a lofty purpose:
“[T]o assist the governor in finding and appointing the best qualified persons available for service on the appellate courts of Tennessee, and to assist the electorate of Tennessee to elect the best qualified persons to the courts; to insulate the judges of the courts from political influence and pressure; to improve the administration of justice; to enhance the prestige of and respect for the courts by eliminating the necessity of political activities by appellate justices and judges; and to make the courts ‘nonpolitical.’ ” [Tenn. Code Ann. 17-4-101(a) (1994).]
After the appointment and prior to the next statewide election, the performance of the judge or justice would be evaluated by a separate commission before qualifying to be placed on a retention ballot (i.e., unopposed and subject to a “yes-no” vote). Those who did not receive a “passing grade” would face an open election against one or more opponents (none ever did so).
The first judicial evaluation system (originally called the Judicial Evaluation Commission) was created in 1994 as part of the Tennessee Plan. At that time, only two of the nine members were appointed by the Speakers of the Senate and House. In 2006, when the General Assembly created a 12-member evaluation panel, the Speakers appoint- ed six of the 12, but four of those members had to be nominated by other attorney groups, leaving only two of the 12 members selected exclusively by the Speakers. In 2009, the first “Judicial Performance Evaluation Commission” (JPEC) was created with nine members, four of whom were appointed by the Speakers without the requirement for a prior nomination, meaning the Speakers selected each of their four members without input from attorneys or any other groups. The other five members of the original JPEC were appointed by the Tennessee Judicial Council, an advisory body created by the legislature years ago to consider suggestions for changes in rules, procedure, or matters concerning the judicial system. Most recently, all nine of the JPEC members have been chosen exclusively by the Speakers. Though Commission members Henrietta Grant, who was appointed by former House Speaker Kent Williams, a Republican, and Renata Soto, who was appointed by the Judicial Council, had not finished their terms prior to the 2014 elections, the Speaker of the Senate, Ron Ramsey, and the House Speaker, Beth Harwell, had seven of the nine appointments.
In 2013, bills were introduced to discharge all members of the Commission—primarily designed to remove Kent Williams’ appointee and that of the Judicial Council. While passing in the Senate, the bills failed to pass in the House. Ultimately, the JPEC “sunsetted” in 2014. The passage of Constitutional Amendment 2 last November laid the foundation for the General Assembly to establish a new method of selecting judges and, possibly, a method of evaluating those judges. [See Tenn. Const. art. VI, § 3.]
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