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Fight Over Justices Charges Up Judicial Selection Lawsuit

by Andrea Zelinski on September 25, 2012

Parties in a lawsuit challenging how high-ranking Tennessee judges are selected are presently more wrapped up in who will rule on the case than the merits of the case itself.

Gov. Bill Haslam last week appointed three new members to a Special Supreme Court to hear a lawsuit against him challenging the constitutionality of how the state has picked judges over the past four decades. Haslam’s earlier appointees stepped down after John Hay Hooker, a longtime political gadfly behind the lawsuit, pressured them to recuse themselves for having ties to an organization that lobbies against popularly electing judges.

Now, another special justice, W. Morris Kizer, has revealed that he donated to Haslam’s campaigns for Knoxville mayor in 2003 and governor in 2010. Kizer’s household gave $3,000 to Haslam’s gubernatorial campaign, according to campaign records.

Kizer insists his political donations don’t “constitute a basis for disqualification,” but Hooker contends every link is suspect.

“It’s like a football game between the University of Tennessee and Vanderbilt,” said Hooker, an 82-year-old former Democratic Party gubernatorial candidate who today is asking the Special Supreme Court to take up his case. “Do you want the referee to be a graduate from the University of Tennessee or Vanderbilt? That’s a no-no.”

He isn’t the first person to use a football analogy to attempt to influence debate about judicial selection.

In 2011, then-Supreme Court Justice Cornelia Clark tried to convince members of the Tennessee Press Association that electing judges would be just as bad as electing referees for a football game.

Referees would say they will still call a fair game if one team contributed more money to their election campaign than the other, Clark said.

“And I’d say I’d be willing to believe they’re probably going to try to do that,” she said. “But I’m not sure perception would be right.”

Like Clark, the governor openly opposes judicial elections. Haslam maintains that members of his Special Supreme Court may have opinions about whether judges should be popularly elected, but that shouldn’t interfere with their ability to render an impartial judgement. The newest members of the special court are Shelby County criminal court Judge J. Robert Carter Jr., retired East Tennessee U.S. Attorney James R. Dedrick, and Monica N. Warton, chief legal counsel for Regional Medical Center at Memphis.

“If you ask anybody if they’re alive and human, they have an opinion about things,” Haslam said last week before naming the three new members to the panel. “That’s different than having a conflict. I think anybody that we will appoint will understand that difference and will make sure there’s no conflicts.”

Appeals judge Alan Glenn, chairman of the Judicial Ethics Committee, said the governor’s interpretation is correct. The tricky part, he said, is defining what conflicts can “reasonably” be questioned.

“Like defining what’s fairness and what’s beauty, everyone has their own ideas,” he said. “What is reasonably questioned impartiality? Everyone has their own views on it.”

Supreme Court and other appellate judges are appointed by the governor, then face yes-no retention elections every eight years under a policy known as the Tennessee Plan. The Legislature has for the last few years debated whether the practice aligns with the state Constitution, which some say clearly calls for popular elections.

The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

While Hooker awaits the Special Supreme Court’s official decision to take up the case, he is also itching for a chance to officially question justices on whether they can impartially rule on the case, a right he insists he’s given under the state Constitution.

The governor in July picked the initial members of the Special Supreme Court. The state’s five Supreme Court justices recused themselves from hearing the case because they will be directly affected by the ruling.

Political insiders and onlookers are paying close attention. The Tennessee Plan is scheduled to sunset June 30, 2013, when lawmakers will decide whether to renew it.

Lawmakers will also have to decide whether to give final approval to a bill that would amend the Constitution to allow appellate and Supreme Court judges to be appointed by the governor and confirmed by the Legislature. The judges would still face retention elections. If approved by lawmakers, the amendment would go before voters in the 2014 general election.

“It’s an interesting case, I’ll say that. All of us are looking at that closely,” said Lt. Gov. Ron Ramsey, who is also a named defendant. Ramsey has said he believes the Tennessee Plan in its current form is indeed unconstitutional — although he, like the governor, opposes direct judicial elections.

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