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VOL. 38 | NO. 11 | Friday, March 14, 2014

Court upholds retention elections for judges

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NASHVILLE (AP) — A special state Supreme Court panel ruled Monday that Tennessee's current retention election system for appellate court judges does not violate the state constitution.

The decision stems from a lawsuit filed in 2012 by John Jay Hooker of Nashville, a former Democratic candidate for governor who has long been a foe of the way Tennessee picks and retains appellate court judges.

The system, known as the Tennessee Plan, calls for the governor to fill judicial vacancies from a list of nominees submitted by a commission. Appellate court judges run for election and re-election on a yes-or-no vote in which voters decide whether they should be retained. The plan is an attempt to limit partisan politics in the judiciary; however, critics say it keeps the public from having a real say in the process.

Hooker argued that language in the Tennessee Constitution intends for appellate court judges to be chosen by a contested popular election.

In a telephone interview late Monday, Hooker said he plans to petition the court to re-hear the matter. He said the court did not address the constitutionality of the appointment of judges by the governor.

"I claimed then and claim now that there is no constitutional right for the governor to appoint judges," he said. "And since the retention election statute is predicated upon a judicial appointment, the statute is unconstitutional."

The special court found that the constitution does require that voters get to decide on appellate court judges but that the standard definition of "elect" doesn't necessarily require a contested race.

"According to the plain, ordinary inherent meaning of 'elect,' the Constitution requires that the public be given an opportunity to choose, or to decide by voting, who may serve as an appellate judge," said the opinion, written by Andree S. Blumstein. "A contested popular election offers voters such a choice, but a contested popular election is not the only election process that gives the voters such a choice. A ballot that asks the voters whether one particular person should be retained as a judge or replaced is an election in which the voters are asked to 'choose' whether a particular person is the one they want to be a judge."

Gov. Bill Haslam selected the five members of the special Supreme Court to hear the case after every member of the Tennessee Supreme Court recused themselves from the case.

Hooker filed the lawsuit in 2012 maintaining that Haslam violated the state constitution when he appointed Jeffery S. Bivens to the Court of Criminal Appeals. In addition to taking issue with the retention elections of appellate court judges, Hooker's suit claimed that appellate court judges should run in their districts and not on a statewide ballot.

The special Supreme Court said it could not address the way appellate court judges are selected because the process for picking judicial candidates has since changed. The opinion also noted that voters will get to decide in November whether they want to change the state constitution to allow the governor to appoint judges, with legislative confirmation, and to continue retention elections for appellate court judges.

In addition to Blumstein, a Nashville attorney who works for the firm of Sherrard & Roe, the other members of the special Supreme Court are J. Robert Carter Jr., a Shelby County Criminal Court Judge; former U.S. Attorney James R. Dedrick; W. Morris Kizer, who works for Gentry, Tipton & McLemore in Knoxville; and Monica N. Wharton, chief legal officer, Regional One Health at Memphis.

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