To Serve All People - Flexible Structure

Flexible Structure

In content, a judicial system is strongly hierarchical. Appeals go up. Decisions are handed down.

In management, it is a splintered structure. Judges, clerks, prosecutors and public defenders often feel accountable to no one. Only major infractions attract oversight. On day-to-day competence, the officials answer only to the electorate, which is usually in a poor position to make any serious evaluation.
The public itself knows that this sort of accountability fails; it finds fault with the quantity, quality and consistency of judicial work.
In structure, judicial systems combine the worst aspects of both hierarchy and autonomy. The organizational chart reflects the flow of paper rather than the line of accountability, and the numerous boxes are a sign of divided, uneven and wasted resources.
The divisions made sense in an earlier time, when stable caseloads and rural roads made proximity to the courthouse a fair measure of system efficiency. That condition has changed.

A changing law

Urban, industrial, bureaucratic life has transformed the law, even in rural areas.
Yesterday it was increased divorce and growing administrative law. Today it is a rise in crime, domestic violence and environmental cases. Tomorrow it might be coping with an aging population and ethical quandaries of new technology.
If the current trend of redirecting many public services from the federal to the state level continues, state courts can expect new shifts in judicial oversight even among present-day issues.
Increased federalization of crimes may be reducing a portion of the state criminal caseload. Legislation along the three-strikes-and-you're-out line is increasing another portion.
So far court adaptations have been mostly additive, and with resources piled on a structure devised largely in 1870. Now, though, the solutions of the past ? merely adding resources ? meet strong resistance. Public resources are tightening up, and no one reasonably expects any cyclical loosening in the future.
To compound the problem, there is an elevated expectation of fairness, quality and expertise within the judicial system. A heightened sense of individual and group rights, a skeptical (if not cynical) regard for traditional authority and an easier ability to spot outcome disparities ? all make for higher demands and more likely dissatisfactions.

Modern management

Tomorrow's judicial system must be governed by strong, clearly defined and accountable management that will command public and legislative respect through effective use of public resources.
In the past, judicial management has rested on the model of an independent, perhaps autocratic, judge. That model makes no more sense for today's judicial system than the table-pounding business owner does for today's corporate world.
The judicial system has been a vast set of islands, laid out in a pattern that is bewildering to the public, each with its own personality quirks and customs. On legal matters there is a clear line of authority, but on administrative matters local sovereigns often reign in isolation.
A public that works in businesses with advanced information systems, performance evaluation and constant change quite naturally resents a system that seems detached, unaccountable and hidebound.
Technology offers some promise in moving toward modern management, and its advantages will be multiplied in a structure built for flexible adaptation to the changes that will surely come.
The structure should serve the interests of the public and of justice, not any particular group of judges, lawyers, or other parties within the judicial system.
It should also be broad enough to change as needs change. The Supreme Court, working with the Administrative Office of the Courts, should be able to make such adjustments by its own authority, responding quickly and without political consideration.

The ulitimate court

The Tennessee Supreme Court should serve as the court of last resort in both civil and criminal matters and as the ultimate authority over the administrative arm of the entire judicial system.
This is essentially the case now. However, we do recommend some important changes in the underlying details.
The size and format of the Court have not changed since 1876, when caseloads were minor, when the grand divisions of the state were both grander and more divisive, and when administration was largely a local concern.
Justices of the Supreme Court should be chosen from throughout the state without regard to the grand division in which they might reside. They should be appointed by the governor upon the recommendation of the Tennessee Judicial Selection Commission, as in the present system.
For the sake of continuity, stability and political independence, terms of office should be staggered, so that no more than half the court members are subject to removal or reappointment at any given time.
The members of the Supreme Court select one of their members to serve as presiding or Chief Justice. That person should serve for a four-year term.
We suggest that the senior member of the Court, other than the Chief Justice, should be designated as the deputy chief justice, to serve in the absence or disqualification of the Chief Justice or a vacancy in that position.
Membership of the Supreme Court has been set at five since 1876. It is easy to envision circumstances under which that will be an inadequate number. We therefore suggest that the number of justices be set by the legislature, rather than by constitutional provision, when recommended by the Supreme Court.

The ultimate authority

The Supreme Court will remain the ultimate authority of judicial system administration, but it has neither the background nor the mission to oversee detailed aspects of management. It should take on the roles for which it is best suited: broad guidance and final review.
In recent years, the administrative arm of the judicial system has been substantially enhanced, largely through the Administrative Office of the Courts (AOC), working closely with the Chief Justice and other members of the Supreme Court.
The Chief Justice has served as the chief executive officer of the court system, and the other justices have taken on oversight roles as well, especially in dealing with the various commissions and advisory boards reporting to the Court, which number about 30 at any given time. Members of the court have developed various areas of expertise in that regard, although the career path to the court normally does not include much experience as an administrator of a large organization.
In later pages we recommend further enhancement of system administration, with substantially more responsibility placed on the Administrative Office. On a straight-line path, that would require more involvement by the Supreme Court as well.
In fact, the workload will actually require a certain stepping back by the court to a role more like a board of directors of the administrative arm. The director of the AOC will function more like a chief operating officer of the system. The Supreme Court will focus more on board-like functions: policy setting and review; long-range planning; priority establishment; accountability review of the Administrative Office of the Courts and its director.
The Supreme Court, as one example, should not have to determine what kind of computer software would be best for both local case management and statewide data collection. It should, though, be in a position to focus the AOC's attention specifically on those goals.

Combine and divide

Consolidation of lower courts seems to imply making parts of the system bigger. In fact, consolidation should help divide the system.
The issue of consolidation raised more alarms from officials within the system than any other issue the commission considered, which may be an indication of just how internally focused the system is. The subject is worth a few words on its own, before we get to specific levels.
If the only points for consolidation were even caseloads and uniform procedures, we might have deep qualms about the strategy as well.
Critics of the strategy focused most often on the expertise of divisions and the efficiency those divisions bring. They then undercut their own arguments by noting the cross-assignments of appeals court judges and overlapping jurisdictions of lower courts. In some jurisdictions, one judge fills the civil, criminal, equity and juvenile law roles, leading one to wonder why expertise might be so essential in one courthouse but not in another.
In fact, we agree that expertise serves important functions, and we do not intend for consolidation to turn more judges into general practitioners.
In present circumstances, though, expertise is frozen into constitutional and statutory structures, often in ways no longer appropriate. Some current bases are too small to justify specialization. Some other bases are misapportioned to changing caseloads, and legislative reaction necessarily lags behind the changes.
Circuit, chancery and some general sessions courts, for instance, are still struggling to adapt to an enormous increase in domestic relations cases, even though that increase began appearing well over 30 years ago.
Consolidation of the base allows flexible divisions according to need, changing as needs change. A wider base would allow for more specialization and expertise rather than less, but the divisions would be based on needs of today rather than on legislation of yesteryear.
The consolidations we propose aim to maintain the expertise that exists, gather resources for even greater specialization than is now possible, and open the system to more responsive adjustments.

A single court of appeals

Accordingly, we recommend that there be one intermediate court of appeals in Tennessee, with both criminal and civil divisions.
When we suggest one court, we do not suggest that each judge will hear an equal mix of civil and criminal cases. We suggest only that the division and personnel now fixed by statute adjust to current caseloads and remain adjustable into the future.
Some appellate judges prefer to deal primarily with criminal cases and some with civil. For the most part, they will continue to do so. But present inequalities in workloads can be evened out, and the appeals court's role in efficient system management can be enhanced.
A number of comments to the commission have objected to the idea of one appeals court ? a disproportionate number, in fact, considering the many substantive issues that have not drawn such response. The comments are all the more remarkable considering that almost all other states have only one intermediate appeals court.
While a majority of the commission favors a consolidation of the present two appeals courts, we acknowledge also that this is not the linchpin of judicial reform for Tennessee. Nor, however, would it be the calamity that its critics portray.
Specialization within a consolidated appeals court would be consistent with the principles and structure we prescribe for the rest of the judicial system.
In the future, changes might lead to a third division ? perhaps for administrative law appeals, or some area that we cannot anticipate at this time. Under the consolidation we propose, the judicial system could establish that division without passing through the hoops of both legislative and judicial politics.
Appeals court judges, as in the present system, should be appointed by the governor after recommendation of the Tennessee Judicial Selection Commission.
The members of the Court of Appeals would select one of their own to serve as presiding judge for a four-year term.
As in the Supreme Court, the most senior judge who is not presiding judge would be designated deputy presiding judge, to serve in case of absence, disqualification or vacancy of the presiding judge.

Consolidated trial courts

The commission recommends a more substantial consolidation of all trial courts, including the present Circuit Court, Criminal Court, Chancery Court, Probate Court, Juvenile Court, General Sessions Court and municipal courts with General Sessions jurisdiction.
All of these functions would fall into one grouping, to be known as district courts.
Specifically, this would remove the multiple statutory provisions for the patchwork of various courts, often done through locally initiated private acts of the General Assembly.
Again, let us emphasize that this would not abolish the functions of those courts or the specialization of judges. Within each judicial unit, one or more divisions of these districts courts would likely be designated to carry out those various functions. There might, for instance, be a division of district court designated for civil litigation, one for criminal affairs, and one for family law.
Some of the specialized courts now being held experimentally, such as drug courts and environmental courts, might have formal status within certain district court units. As needs develop for similar specialties in the future, the judicial system could shift resources to establish such divisions without special legislation or separate administration.
The commission heard numerous objections to this proposed consolidation, particularly from chancellors. Whenever a commission member explained, though, that there might well be a division of district court devoted to the "fast-track" and equity expertise of Chancery Court, the objections usually diminished.
A consolidated system would also be able to shift resources to even out workloads, a matter of both fairness to individual judges and confidence to a public that is skeptical about judicial diligence.
Consolidation would allow cross-assignment of judges well beyond the present, mostly voluntary, system. This system management would be used routinely to maximize personnel and facility resources, accommodate the special needs that travel to rural areas places on judges, and expand the variety of matters to which many judges are exposed. Every judge appointed to district court would be subject to cross-assignment, although obviously the judge who prefers general trial work will face a far wider range than the one who prefers to focus on family law.
Each judge would hold the same title ? district court judge ? and receive equal pay, to affirm the parity of their positions, regardless of any specialized divisions to which they are assigned.

Appointed judges

Judicial selection has been debated from the state's earliest days.
The Constitution of 1796 put the power fully in the legislature, but the Constitution of 1835 took away appointment of justices of the peace and made them subject to popular suffrage. The amendments of 1853, spurred by Jacksonian Democracy, did the same for appellate and trial judges.
Executive appointments during Reconstruction led the Constitution of 1870 to reinforce the requirement for popular elections, but within a short time critics said it was an overreaction. An 1887 article in the Proceedings of the Bar Association of Tennessee, for instance, argued that "an elective judiciary is not, and can never be, perfectly independent."
About judicial appointment, it said: "It is well known that this is not a position that is popular or that is likely to touch a tender chord in the politician's heart; but it is the way judges should be made, and when they are made in this way, experience demonstrates that they are better judges, and that justice is administered without sale, denial or delay."
The commission agrees, but not without acknowledging that executive appointment imposes a cost on democratic spirit.
We recommend that trial judges be selected in the same manner as members of the Court of Appeals and the Supreme Court. That is, they should be appointed for eight-year terms, then face retention referendums rather than be required to stand for traditional candidate-vs.-candidate elections.

No party label

Partisan elections, in particular, undermine the essence of judicial independence.
The ethical code that prohibits a judge from being swayed by partisan interests simply does not square with an election in which a judge is a formal representative of those same partisan interests.
The commission did hear serious support for nonpartisan elections, though, at its best from persons who believe that public officials should be directly accountable to the public and that executive appointments diminish public confidence.
Those views were admirably democratic, even when expressed by those who acknowledged that the public often has little information on which to evaluate a judge. Even now, in Shelby County for example, the public may make choices in up to 40 judicial elections at one time, with more than 200 candidates on the ballot. In such circumstances, informed choice is an oxymoron.
As electoral proponents note, executive appointment does not remove all politics from the selection process. In fact, though, a great number ? in recent years, a majority ? of state judges subject to elections obtained their office first through appointments.

On balance, the decisive factor for the commission is the crucial importance of having judges who are free to decide every case on merit, not on how an electoral opponent might use the decision.
In addition, there is a built-in conflict of interest in judicial elections. Their manpower and money invariably come from those with a stake in the judicial system, mostly lawyers and those whose interests bring them frequently into court. Ethical canons require that judges not know who has contributed to their campaigns, but election laws require them to review and sign documents listing the contributors. It is a charade, and the system fundamentally undermines judicial integrity.
The increasing importance of fund-raising in elections compounds the risk that political caution might overrule judicial integrity. The recent rise of special-interest politics also makes reliance on judicial elections increasingly at odds with the general affirmation that elections are supposed to confer. And if the commission's recommendations for district court consolidation are adopted, the electoral area of a judge would be larger and thus require substantially greater fund-raising for a traditional election.
Clearly citizens of Tennessee wish for a system in which they maintain a sense of public accountability. Retention elections fill that role, but as we discuss later, a corollary component is an extensive system of judicial evaluation. Accountability is only as good as the information upon which it's based. Whether the ballot choice to retain a judge is Yes vs. No, or Judge A vs. Person B, only good information will ensure the public confidence that the ballot is supposed to inspire.

Full-time judges
Arguments for part-time judges are far less credible than those for elected ones. Those judges who also engage in the private practice of law face constant conflicts of interest for themselves and create constant dilemmas for attorneys in their courts.
Resource management under consolidation should remove any logistical necessity for part-time judges, and public faith in the system's integrity can only benefit.
We believe it is still sensible for district attorneys general to stand for election. They represent the public in court; they are appropriately accountable to the public.
Public defenders, on the other hand, represent the criminally accused. Their ethical responsibility is to be an adversary against the public's representative, and that is logically inconsistent with seeking the public's approval every few years. We think they should be selected by appointment.

Magistrates in the middle

Magistrates can play an important middle role, less than judicial decision-making but more than clerical record-keeping.
We envision magistrates as the triage officers of the judicial system.
We are not even sure magistrate is the proper name, since the position is unlike the various present magistrates. Gatekeeper, dispute facilitator, justice coordinator ? all those titles sound a bit stiff, but they do describe what we have in mind.
What we don't intend is for magistrates to become second-tier judges. The tendency in that structure is then to establish second-tier courts, dispensing second-tier justice.
Magistrates could have plenty to do as gatekeepers.
They might screen complaint warrants to weed out the groundless, for instance. The practice of "taking you to court with a warrant," the almost limitless ability of citizens to swear out warrants against each other, needs a filter. At present, criminal warrants, issued without fee, are often substituting for civil warrants that require a fee. Warrants that drag citizens into the justice system should be administered in a just manner, and too often now they are not.
Magistrates might also play an important role in the bail bond system. There are many reasons for the faults in that system, but judicial inattention is on the list. Someone in the judicial system should have responsibility for judgment about risk.

Magistrates might sort out issues and facts short of final judgments.
For that purpose, we recommend that they be licensed lawyers, chosen by district judges from candidates qualified by the Administrative Office of the Courts.
Magistrates might preside over preliminary hearings and various motions. Even more broadly, they might exercise effective case management, which now falls below the horizon of the trial judge but above the authority of the court clerk.
They might play an important role in referring cases to alternate forums and even to alternate community resources, ranging, say, from counselors to public health agencies.
In that framework, the magistrates' success would be judged not just on the volume of the caseload, but on the effective direction of it. Some of that direction would be inside the court system. Some would be toward other problem solvers.
The entire judicial system must move beyond the model of simply processing cases. The magistrate, with more flexibility than a judge but more authority than a clerk, can be a focal point of that movement.

Mandatory education

Continuing education should encompass both procedural and substantive law, plus topics that enhance the overall performance of the judicial system and the public confidence in it.
For instance, training for judges and other court personnel should include:
? Cultural diversity
? New technology
? Personal relations, including interaction with the public, juries, unrepresented litigants and professionals
? Alternative dispute resolution
? Relations with social services and other agencies
New judges should have special training before assuming judicial responsibilities.

Routine evaluation
Full and meaningful evaluation may do more to improve both judicial performance and public confidence than any structural or administrative change we suggest.
No matter how well our other recommendations are received by the General Assembly or the broad legal community, the judicial system can make great progress by concentrating its efforts on full development of the emerging system of evaluation.
Evaluation of judges at all levels should include expert application of the law and performance standards for case management. But it should also include broad measures of the full range of judicial actions, and it should seek opinions among all the various parties that come before the court, from litigants to witnesses to jury members.
The commission believes the Supreme Court has made important progress in its recent rule establishing mandatory evaluation procedures. The present evaluation of trial-court judges is used only in confidence for judicial improvement, but we hope that as it is refined and enhanced, and as it becomes routine, it will then become part of the information available to the public that the judicial system serves.
The evaluation is not confidential for members of the appellate courts, and we applaud their willingness to embark on this enhanced public accountability.
Technology can add an important element to public accountability. The advent of computer data bases opens up new forms of analysis that can be enormously useful to judicial evaluation and public confidence.
Statistical studies of judicial actions, for instance, can be powerful weapons in monitoring discrimination. Such studies are already done occasionally by academic researchers or journalists. They would be far more useful if done systematically by the judicial system itself, for behavior can change strikingly when simple but quantified facts are laid open.

Judicial clerks

Every judge should have the assistance of a law-trained judicial clerk.
Judicial clerks are no more luxuries for judges than nurses or lab technicians are luxuries for doctors.
Clerks who research specialized areas of the law allow judges to be more efficient, freeing them to do what only judges can do: manage and decide cases. This benefit is recognized in state appellate courts, but it holds true in trial courts as well.
Trial judges should have access to a salaried judicial clerk on an individual or shared basis, depending on the nature of the judge's caseload.

A municipal maze

Municipal courts offer a separate, substandard justice and warrant a thorough review of their own.
At their best, the present-day system of city courts is a convenient means for disposing of relatively minor matters, close at hand, with less formality than state courts. They become, in essence, an administrative forum of alternative dispute resolution, with the right to appeal to the state judicial system.
At their worst, they are merely revenue agencies masquerading as courts. Their sole reason for being is the funds that their municipality draws from them. If the funds disappeared, few of the cities would consider the court an important civic service. Their limits and oversight are ill-defined, and their flexibility can sometimes disguise mere arbitrariness.
Municipal courts are a substantial topic unto themselves. There are some 200 to 300 such courts across the state, operating so independently that even obtaining an exact count is difficult.
We believe they fall much closer to the worst model than to the best one. A majority of complaints about judges that come to the Administrative Office of the Courts originate with municipal courts.
Another body should take on a full review of municipal courts, but our own review leads to these starting points:
? State trial courts should hold sessions in a wide range of locations, as much as possible eliminating the municipal courts' justification for convenience.
? Municipal courts across the state should have uniform practices and standards. A maze of private legislative acts built them over the years, but a citizen's experience in any court should not depend on the whims of local history.
? Criminal offenses should be defined by state statute, not local ordinance. Municipal governments should neither criminalize actions on their own authority nor mirror state laws just for the sake of their own revenue.
? As a bare starting point, municipal courts should be required to report data summarizing caseload and funds. Accountability does not occur in an informational vacuum.
Municipal courts, and the reasons for them, are ripe for change. For instance, if a person could pay a fine for a traffic offense by handing a credit card to the police officer, the public theater and private inconvenience of a court appearance could be removed.
We encourage that sort of change. Merely adding more revenue-gathering municipal courts to the present patchwork demeans their role in public justice. State government will have to take the lead in reform, though, because the financial interest of local government clearly rests with the present system.

In the profession

The legal profession should renew its emphasis on professional responsibility.
While the Commission has focused on the judicial system as a part of the broader legal system, our study frequently brought us back to the attorneys practicing within it. Public disenchantment with the judicial system cannot be separated from public feelings about lawyers in general.
Market forces within the legal business are not helping. Concern for revenue production and service marketing builds pressure for a volume business, and that often leads the legal profession directly away from public confidence.
This is not the place to review the whole array of the legal profession, but this much seems clear:
Attorneys must be trained beyond the traditional knowledge and skills of the law. That training must include an enhanced sense of ethics, the countervailing force of market influences. And the legal system must build an effective system of self-regulation, one that the public does not write off as mutual accommodation.
Some of these topics are treated more fully in an appendix, a report by the deans of the state's four law schools and the three present members and one former member of the Tennessee Board of Law Examiners. That group's work was parallel to the Commission's, but its place in considering the state's judicial system is a central one.

Additional guardrails

An adequate system should exist to protect clients against theft or diversion of funds.
All attorneys should be required to carry malpractice insurance, to protect clients against gross incompetence or neglect.
The regulatory apparatus that disciplines attorneys should enhance public confidence rather than add to skepticism. It might begin by including participation by members of the public.
Too many of the disciplinary proceedings remain too secret for too long. Clearly there is a problem with frivolous complaints, even more of which could be expected if all were made public. But there should be a point at which there is an equivalent of finding probable cause, a threshold at which the balance shifts toward informing the public that a potential problem exists.
Likewise, if the disciplinary procedures are meant to support public confidence and accountability, the practice of private reprimands should end.
Evaluation of competence is a difficult area. There are problems with peer review, but consumers should have guidance that is more reliable than phone-book advertising.
Certification of specialization is one step now underway, but the legal system should look beyond that single standard. Competence has often been regarded as a matter of subjective judgment, and left untouched as a consequence. New techniques of analysis offer ways to quantify and objectify such issues, though, and the system should look for ways to incorporate those techniques rather than resist them. At the least, judges should be less tolerant of failing competence than is often now the case.

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