Does a merit selection system for judicial selection require retention elections? Tennessee Senate Judiciary committee says: maybe.

Since its implementation in the 1970s, the “Tennessee Plan” of selection for appellate court judges has been subject to numerous lawsuits and contentions. Among the issues: does a merit selection appointment system plus yes/no retention elections meet the requirement under Tennessee’s Constitution that appellate judges be “elected by the qualified voters of the state” (Art VI. Sec. 3)? Litigation surrounding the subject has said that yes, a yes/no retention election does qualify in State ex rel. Higgins v. Dunn (496 S.W.2d 480 (1973)). Several additional lawsuits were filed over the years challenging the findings, but none succeeded.

SJR 183 of 2011 purports “to unequivocally authorize the general assembly, by statute, to establish a system of merit-based appointments with retention elections for appellate court judges.” The original text of the amendment was to have amended Art. VI, Sec. 3 to include

As an alternative to contested elections, the Legislature is authorized to establish, by law, a system of merit-based appointments with retention elections for the judges of the Supreme Court and for the judges of the intermediate appellate courts.

However, what came out of the Senate Judiciary committee on April 26 was amended to make doubly clear retention elections in particular were merely an option at the legislature’s discretion (click here and here for news reports of the meeting). The provision would now read

As an alternative to contested elections, the Legislature is authorized to establish, by law, a system of merit-based appointments with or without retention elections for the judges of the Supreme Court and for the judges of the intermediate appellate courts.

Thus, the potential for a future legislature to authorize merit selection for initial terms but require contested elections for subsequent terms, or to scrap the whole lot and shift to all contested elections at every stage/step.

These efforts are in addition to two other legislative options. The first (SB 127/HB 173) would expressly do away with retention elections and appointment and require elections. The Senate version cleared the Judiciary Committee on April 20; the House version cleared the House Judiciary’s General Subcommittee back in March.

The second is simply to wait the merit selection system out, as almost occurred two years ago. The legislation authorizing the state’s Judicial Selection Commission automatically sunsets automatically every few years. The Commission was listed under Tennessee Code 4-29-229 as set to expire June 30, 2008 (+ 1 year “wind down” to June 30, 2009).

A heavily modified commission with new membership criteria was approved at literally the last minute (June 25, 2009) as SB 1573. However, this mere extended the life of the Judicial Selection Commission and the Judicial Performance Evaluation Commission (which reviews judges prior to retention elections) until June 30, 2012, as per 4-29-233. With a one year wind down, this still means the legislature must re-authorize the Commissions by June 30, 2013.

The legislature is expected to adjourn sometime in early June.