By Sharon Frankenberg,
Attorney at Law

Would it surprise you to hear that the majority of our appellate judges in Tennessee will be up for a “yes-no” retention election in August 2014?  Voters may select whether or not to keep each judge listed on the ballot in office.  Appellate judges include judges on the Court of Appeals, the Court of Criminal Appeals and the Tennessee Supreme Court.   While voters may serve on jury duty or appear in front of a trial judge for a legal matter, members of the voting public have very little interaction with appellate judges.  How do they know if the judges are doing a good job?  Does anyone know?

Known as the “Tennessee Plan” since 1994,  merit selection of judges has been a feature of the Tennessee judiciary since 1971.  It began with the creation of the Appellate Court Nominating Commission by the Legislature which morphed over time into the Judicial Nominating Commission.  That commission was terminated on June 30, 2012 and did no further business after its “sunset” on June 30 of this year.  The members of the commission were appointed by the speaker of the respective Houses from the public and from nominees offered by various bar groups.  The statute required a conscious effort to balance geography, race and gender in the makeup of the commission.  Nonlawyers were also included as members of the commission.

The function of the Tennessee Plan is to provide a screening process for all gubernatorial appointments of appellate judges and trial judges.  More than 76 judges have been appointed under the Tennessee Plan’s merit selection feature.  After the judges had been appointed, formal judicial performance evaluations are provided by the Judicial Performance Evaluation Commission.  This panel reviews the work of individual appellate judges and gives an opinion to voters as to whether or not they should be given new terms.  This merit retention feature of the Tennessee Plan has proven to provide opportunities for women and ethnic and minority judges to prove their qualifications before being subject to election.  It also reduces the impact of partisan elections on the judiciary by keeping political money and advertising at a minimum.  The retention election is not a just rubber stamp however.  Former Supreme Court Justice Penny Jo White received a “no” vote that removed her from the bench.

On October 16, 2013, Governor Haslam issued Executive Order No. 34 establishing the Governor’s Commission for Judicial Appointments which reinstates a version of the Judicial Nominating Commission.  The Order states, “in order to sustain the third and equal branch of government and its continued operations, it is essential to continue to fill judicial vacancies with men and women of the highest caliber, who by temperament, ability and integrity will freely, impartially and independently interpret the laws and administer justice.”  As such, the Governor may continue to make judicial appointments and will continue to have possible judicial nominees available to him who have been interviewed and screened by his new commissioners.  The new Commission for Judicial Appointments will be composed of the eleven incumbent members of the old Judicial Nominating Commission plus six new members appointed by the Governor in consultation with the Speaker of the House of Representatives and the Speaker of the Senate.  This action by the Governor puts stability back in our judicial system which has felt stress from not knowing what would happen as judicial vacancies come open.

The Tennessee Plan is being challenged by a proposed constitutional amendment going before voters in 2014.  The proposal would replace Tennessee’s current plan of merit selection and retention elections with a system allowing the governor to appoint appellate judges, subject to legislative confirmation, followed by retention elections.  As we get closer to the 2014 election, expect to hear much more about this proposed constitutional amendment.