Before this year’s Tennessee legislature came into session I noted the dilemma it faced.
The state’s merit selection system depends on two commissions (the Judicial Selection Commission and the Judicial Performance Evaluation Commission) statutorily set to automatically sunset June 30, 2012. The last time something like this happened was in 2008, when the sunset deadline was passed and the commissions were almost at the end of their one-year “wind down” in June 2009 before legislation was adopted to keep them going. Thus if nothing happens, merit selection ends and there is some degree of ambiguity of there is any way to appoint or elected appellate judges after. The state’s Attorney General in 2009 issued an opinion (09-43) that with the commissions gone and no explicit statutory language for conducting direct elections, sitting judges would simply remain in office indefinitely due to a constitutional provision (Article VII, §5) that provides a judge “shall hold his office until his successor is elected or appointed, and qualified.”
Yesterday the House approved SJR 710, a quasi-federal system of judicial selection. It needs to be re-approved by 2/3rds of the 2013-2014 legislature before appearing on the November 2014 ballot. But the question about the two commissions remains outstanding.
- Judicial Selection Commission: HB 2356 / SB 2346 and HB 3575 / SB 3321 would extend the sunset date for the nominating commission until June 30, 2013 only. None of them appear to have gotten so much as a committee hearing. Additionally HB 3451 would have extended the nominating commission to June 30, 2014. It too got nowhere.
- Judicial Performance Evaluation Commission: HB 2537 / SB 2345 would extend the sunset date for the evaluation commission until June 30, 2013 only. The House version was approved in mid-April and is on its way to the governor’s desk.
This leaves open several questions, such as what happens if there is a vacancy on the appellate courts and the nominating commission has been shut down. Moreover, there are already at least 2 justices (Chief Justice Cornelia A. Clark and Justice Janice M. Holder) set to have an election in August 2014, plus judges of the intermediate appellate courts (Court of Appeals & Court of Criminal Appeals) but the performance evaluation commission will shut down a year prior and SJR 710 won’t be voted on until November 2014 (if it clears the legislature again in 2013-2014, not a given). Will the judges and justices simply remain in office indefinitely?
The Tennessee Bar’s President has called the lack of specificity about the 2014 elections “irresponsible” (h/t TBA Today). Republican House member Glen Casada has offered a solution: make the 2014 elections contested races, however his bill to provide for contested elections (HB 173) was rejected in the House Judiciary Committee earlier this year on a 7-7- tie vote.