SPECIAL REPORT: Changing the Judicial Process

 

Was the State Constitution Folded, Spindled and Mutilated?

Well, I guess that depends on whom you ask!
 
On Tuesday, May 26, 2009, SB 1573 was in the Senate Finance Committee where there was spirited debate. As amended, this bill dissolves the Judicial Selection Commission, puts in its place the Judicial Nominating Commission (JNC), eliminates the requirement that the members of that Commission be chosen from the various lawyer groups, requires the Commission to hold public meetings, and prohibits lobbyists or their employers serving. When a judicial vacancy occurs, the JNC gives the Governor a panel of three nominees from which to choose. If the Governor rejects that panel, he is given a second panel of three. If "for good cause" he rejects all six nominees, he can 'reach down' into the pool to choose a qualified candidate to fill the vacancy. The best part of this 'much less than perfect' plan is that it only extends the JNC for two years, and then we can do all this over again!! Won't that be fun?? 
 
The basic debate was between those who believe that when the Constitution states, "The judges of the Supreme Court shall be elected by the qualified voters of the state" it actually means there should be a contested election, not a 'retention' vote and those who support the 'merit-retention Tennessee Plan' and think it is Constitutional. It also became clear that this proposal had become a compromise between 'what we would really want to pass' and ' what we think will pass both houses." The bill passed out of Finance 8-3:
 
NOTE: Votes in BOLD reflect our position.
Voting aye were: Black, Overbey, Haynes, Henry, Kyle, Norris, Woodson, Herron -- 8.
Voting no were: Burchett, Watson, McNally -- 3.
 
 
DIFFERENCES OF OPINION
During the week and especially during the respective floor debates on Thursday, it was repeatedly pointed out that 'reasonable minds can differ" on what the Constitution says and what it means and 'sincerely held beliefs'. Certainly that can happen. Many of those who support the Judicial Selection or Nominating Commission usually point to a couple of State Supreme Court Rulings to justify their support for what is known as the 'Tennessee Plan'. However, there is honest disagreement about exactly what was placed before the court and exactly what they ruled on. Others supporting 'merit selection' expressed concern about large amounts of cash being involved in judicial elections. Some were convinced that the General Assembly simply could not adjourn without passing something and some were afraid of getting something 'worse' than this proposal, hence their support. 
 
 

On thing that was stated during the House floor debate was that 16 of the 17 states that have adopted some sort of 'merit retention plan' for judges went back and changed their State Constitution to reflect the preferred process. Tennessee is the lone exception. That is really what we have been supporting - either follow the Constitution or give the people the opportunity to change the constitution. 

 
 
TO THE SENATE FLOOR
Legislative leadership made the decision to pass the bill first on the Senate floor then move it to the House floor for their action.
At 9:46 a.m. Thursday, May 28th, the debate started on the Senate floor with Majority Leader Mark Norris (R-Collierville) presenting SB 1573 saying that this proposal 'gets us from where we are to where we need to be.' Continuing, "many would like to see the 'Tennessee Plan' expire, others want to make no changes...this is a compromise."  
 
"My belief is that this bill violates the Constitution in a number of places," Sen. Randy McNally (R-Oak Ridge) said as he presented an amendment to provide for direction election of appellate judges. He spoke of wanting to return the process 'to the people' - that putting in a temporary system does nothing to cure the constitutional situation. Senators Bo Watson (R-Chattanooga), Dewayne Bunch (R-Cleveland), Mae Beavers (R-Mt. Juliet) and Tim Burchett (R-Knoxville) spoke in favor on this amendment and Sen. Paul Stanley (R-Germantown) pointed out that some say they want to 'take politics out of it' but that you can't 'take politics out of politics, you can only move it around."
This amendment was defeated 12-20-1.
 
Voting aye were: Beavers, Black, Bunch, Burchett, Burks, Gresham, Johnson, McNally, Southerland, Stanley, Tracy, Watson -- 12.
Voting no were: Barnes, Berke, Crowe, Faulk, Finney L, Ford, Harper, Haynes, Henry, Herron, Jackson, Ketron, Kyle, Marrero, Overbey, Stewart, Tate, Woodson, Yager, Mr. Speaker Ramsey -- 20.
Present and not voting were: Norris -- 1.
 
Sen. Dewayne Bunch presented an amendment that reflected what had been referred to as the "Ramsey 1" plan from last year calling for direct elections. He went on to point out that back in 1994 while leading the fight against the "Tennessee Plan," Sen. Tommy Burks (D-Monterey) said "if we allow this to pass we will never again have control of our judiciary." This amendment was defeated 9-22. 
Voting aye were: Black, Bunch, Burchett, Burks, Gresham, Johnson, McNally, Stanley, Watson -- 9.

Voting no were: Barnes, Beavers, Berke, Crowe, Faulk, Finney L, Ford, Harper, Haynes, Henry, Herron, Jackson, Ketron, Kyle, Marrero, Norris, Overbey, Stewart, Tate, Woodson, Yager, Mr. Speaker Ramsey -- 22 
 
After more extended, sometime tense, discussion, the final vote on SB 1573, as amended, was taken at 11:06 where it passed 27-5.
 
Voting aye were: Barnes, Berke, Black, Burks, Crowe, Faulk, Finney L, Ford, Gresham, Harper, Haynes, Henry, Herron, Jackson, Johnson, Ketron, Kyle, Marrero, Norris, Overbey, Stanley, Stewart, Tate, Tracy, Woodson, Yager, Mr. Speaker Ramsey -- 27.
Voting no were: Beavers, Bunch, Burchett, McNally, Watson -- 5.
 
 
ON TO THE HOUSE FLOOR
At 11:59 a.m., Rep. Joe McCord (R-Maryville) presented the companion, HB 1448, on the House floor. He and co-sponsor Jon Lundberg (R-Bristol) explained the provisions of the legislation to their colleagues. After some procedural matters, Rep. Brian Kelsey (R-Germantown) rose to propose an amendment very similar to the McNally amendment calling for direct elections "to ensure that the constitutional power to elect judges is not given away to special interest groups." He urged his colleagues not to 'give away the people's right to vote." 
Rep. Kent Coleman (D-Murfreesboro) made a motion to move the Kelsey amendment 'to the table' (that means the debate ends and the amendment cannot be voted on by the body.) The tabling motion passed 55-41. 
 
Voting aye were: Armstrong, Barker, Bone, Borchert, Camper, Cobb C, Cobb T, Coleman, Cooper, Curtiss, DeBerry J, DeBerry L, Favors, Ferguson, Fincher, Fitzhugh, Ford, Fraley, Gilmore, Hackworth, Hardaway, Harmon, Harrison, Jones S, Jones U, Kernell, Litz, Lundberg, Maddox, McCord, McDaniel, McDonald, Miller, Montgomery, Moore, Mumpower, Naifeh, Odom, Pitts, Pruitt, Ramsey, Richardson, Roach, Sargent, Shaw, Shepard, Sontany, Stewart, Tidwell, Tindell, Towns, Turner M, Winningham, Yokley, Mr. Speaker Williams -- 55.

Voting no were: Bass, Bell, Brooks H, Brooks K, Campfield, Carr, Casada, Cobb J, Coley, Dean, Dennis, Dunn, Eldridge, Evans, Faulkner, Floyd, Halford, Harwell, Hawk, Haynes, Hensley, Hill, Johnson C, Johnson P, Kelsey, Lollar, Lynn, Maggart, Matheny, Matlock, McCormick, McManus, Niceley, Rich, Rowland, Shipley, Swafford, Todd, Watson, Weaver, Windle -- 41. 
 
After more discussion, the finely choreographed plan was nearly upset as former Speaker Jimmy Naifeh (D-Covington) presented his amendment to scrap this whole bill and retain the present process. He pointed out that, as speaker, he had had to go into both the Judiciary Committee and the Calendar and Rules Committee to break the tie to get the original bill to the floor. McCord responded that the House has sent that idea to the Senate last year and it wouldn't pass then asked Naifeh to withdraw the amendment. It was about 12:30 when the decision was made to move the bill down the calendar 10 spaces and come back to it. 
At 12:45 the House once again took up HB 1448. McCord commented that he had seen Naifeh be the 50th vote on the sales tax and asked him to "show that same leadership" by withdrawing his amendment. Evidently there was some concern that, as a strategy, this amendment might garner enough votes to pass in order to send it back to the Senate in a form that would certainly be rejected, leaving the two bodies hopelessly deadlocked. (That's a bad idea on this issue???) 
 
Naifeh asserted that "what we have is best-I am a realist - I know it will be dead in the Senate - we are being held hostage by the Senate - it's like the 'Golden Rule', whoever has the votes makes the rules."  
 
McCord moved the Naifeh amendment 'to the table' with Naifeh stating, "I understand what happens if this goes on." McCord's motion failed but the amendment was ultimately withdrawn. (A very interesting little 'drama within the drama'.) 
 
The last amendment to be brought up was one to REMOVE from the bill the 'reach down' provision allowing the Governor to reject two panels of three nominees each, and chose another qualified candidate.
 
IMPORTANT NOTE: The House adding this amendment means that the bills no longer match and it will have to go back to the Senate for a concurring vote so maybe the story is quite over yet.  
 
Voting aye were: Armstrong, Barker, Bone, Borchert, Brooks H, Camper, Cobb C, Cobb J, Cobb T, Coleman, Cooper, Curtiss, Dean, DeBerry J, DeBerry L, Eldridge, Favors, Ferguson, Fincher, Fitzhugh, Ford, Fraley, Gilmore, Hackworth, Halford, Hardaway, Harmon, Harrison, Hawk, Haynes, Johnson C, Johnson P, Jones U, Kernell, Litz, Maddox, McCord, McCormick, McDaniel, McDonald, McManus, Miller, Montgomery, Moore, Naifeh, Odom, Pruitt, Ramsey, Richardson, Roach, Rowland, Sargent, Shaw, Shepard, Sontany, Stewart, Tidwell, Tindell, Towns, Turner M, Winningham, Yokley, Mr. Speaker Williams -- 63.

Voting no were: Bell, Brooks K, Campfield, Carr, Casada, Coley, Dennis, Dunn, Evans, Faulkner, Floyd, Harwell, Hensley, Hill, Kelsey, Lollar, Lundberg, Lynn, Maggart, Matheny, Matlock, Mumpower, Niceley, Pitts, Rich, Shipley, Swafford, Watson, Weaver, Windle -- 30.
Present and not voting were: Bass, Todd -- 2. 
 
A number of legislators spoke passionately against this bill including Rep. Mike Bell (R-Riceville), Rep. Jim Coley (R-Bartlett), Rep. Frank Niceley (R-Strawberry Plains), and Rep. Bill Dunn (R-Knoxville). The final vote was taken at 1:56 when the bill passed 57-39 
 
Voting aye were: Armstrong, Barker, Bone, Borchert, Brooks H, Camper, Cobb C, Cobb T, Coleman, Cooper, Curtiss, DeBerry J, DeBerry L, Favors, Ferguson, Fitzhugh, Ford, Fraley, Gilmore, Hackworth, Hardaway, Harmon, Harrison, Hawk, Johnson P, Jones S, Jones U, Kernell, Litz, Lundberg, Maddox, Matlock, McCord, McCormick, McDaniel, McDonald, Miller, Montgomery, Moore, Mumpower, Naifeh, Odom, Pruitt, Ramsey, Richardson, Roach, Sargent, Shaw, Shepard, Sontany, Stewart, Tidwell, Tindell, Towns, Turner M, Yokley, Mr. Speaker Williams -- 57.

Voting no were: Bass, Bell, Brooks K, Campfield, Carr, Casada, Cobb J, Coley, Dean, Dennis, Dunn, Eldridge, Evans, Faulkner, Fincher, Floyd, Halford, Harwell, Haynes, Hensley, Hill, Johnson C, Kelsey, Lollar, Lynn, Maggart, Matheny, McManus, Niceley, Pitts, Rich, Rowland, Shipley, Swafford, Todd, Watson, Weaver, Windle, Winningham -- 39.
 
 

Special appreciation goes to the legislators that consistently supported what we believe to be the Constitutional position.

 

Was this 'compromise' the only thing that would pass both houses? I guess we will never know. It would have been 'worth the price of admission' to see what would have happened if bill we supported, SB 2114 (as amended), calling for direct elections with a provision for a Constitution Convention to put the question to the people, had been put on the floor alone, passed and sent to the House for them to accept or reject. The good news is that many voters across the state have been educated on this important Constitutional issue and will continue to stay involved as we look forward to supporting a Constitutional amendment.