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Speak Out on Behalf of Our Judicial System
September 17 is Constitution Day and Citizenship Day, commemorating the day in 1787 when the delegates to the Constitutional Convention met to sign the document they had created. Established in 2004 by Congress, federal law now requires that educational institutions receiving federal funding provide educational programming on the history of the American Constitution on Sept. 17.
As we learned in eighth grade civics class, our federal and state constitutions have as a basis three separate but equal branches of government. A fair and impartial judiciary is the capstone of the judicial branch, which was described by Alexander Hamilton, one of our country’s first constitutional lawyers, writing in The Federalist No. 78, as “the least dangerous branch.” [The theme of the TBA-sponsored 2013 YouTube video contest for students is “The Least Dangerous Branch: The Importance of a Fair and Impartial Judiciary.” Learn more about it at http://www.tba.org/programs/the-tba-youtube-video-contest]
The TBA remains committed to ensuring that Tennesseans have the benefit of a fair and impartial judiciary and a well-functioning judicial system. Our Rules of Professional Conduct tell us that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain there authority.” One way to do this is to help educate that public, perhaps as part of a Constitution Day activity, as to the importance of fair and impartial judges and why a judge’s ruling should not be based on popular public opinion but rather on the law and facts as presented.
Currently, our judicial system is at risk, and this is acutely true for our trial courts. In 1971 the General Assembly instituted a system of merit selection and retention election for appellate judges. In 1994, our legislature expanded the merit retention system to cover the justices of the Supreme Court and extended merit selection to the trial bench under what they renamed the Tennessee Plan. The Tennessee Plan is well known for providing the system for the selection of all appellate-level judges in Tennessee. It also provides a merit-based selection method for replacing trial court judges when there is a vacancy between elections. This component of the Plan has increased the competence and diversity of our trial court benches.
The Judicial Nominating Commission, which nominates candidates for the governor to appoint under the Tennessee Plan, is slated to completely wind down and go out of existence on June 30, 2013. If this happens, there will be no mechanism in place for filling judicial vacancies at either the trial or appellate court level. In fact, it is widely believed that if the commissions that operate the Tennessee Plan “sunset,” those appellate judges in office would be allowed to “hold over” and continue to serve beyond the August 2014 judicial election. However, judicial vacancies could not be filled.
Setting aside the benefits that inure to the public from merit selection, imagine the chaos that would likely result in our trial court system if vacancies could not be filled for months or years! Large cities with crowded dockets or multi-county circuits with only a few judges serving a broad geographical area could be particularly hard hit. Would courts simply have to close due to a lack of judges? The citizens and businesses of Tennessee do not need courts to close for lack of judges in a fashion similar to what has happened in other states because of a lack of funding. Closing courts would not just have an adverse impact on individual litigants in domestic relations matters. It could have an equally bad effect on businesses that could have to wait inordinate amounts of time to protect their interests.
The Rules of Professional Conduct remind us that we are engaged in “a common calling to promote justice and public good” and that lawyers as public citizens have “special responsibility for the quality of justice.” It is clearly our duty to speak out on behalf of our judicial system. We all need to work to preserve the Tennessee Plan by contacting our legislators and explaining to them why the plan works and is important.
When having these discussions, mention the fact that statewide retention election of appellate judges ensures the accountability of judges to the public. Explain the formal judicial performance evaluation process, which provides the public with information it needs to make informed choices about retention of appellate judges. Remind them that judicial performance evaluations maintain the fairness and impartiality of the bench by focusing not on results or outcomes in particular cases but on overall judicial performance. Tell them how Tennessee’s system reduces the role of partisan politics and campaign contributions in appellate level judicial races. Let them know that merit selection of appellate judges and trial judges provides a screening process in gubernatorial appointments and has worked to improve the overall quality of our judiciary while making it look more like our state’s population. Finally, be sure they understand what disaster would strike our trial courts if there were prolonged vacancies on those benches. If we all work together, the Tennessee Plan will survive.
A Simple Save for Complicated Technology
While great strides have been made in increasing diversity on the bench during my career, even greater strides have been made in technology. Many of us wonder how we practiced law for years without a cell phone. Recently, I was in a discussion with three former TBA presidents about smart phones. The consensus was that when a cell phone is dropped in water, it should immediately be submerged in a container of dry rice for a few days to let the rice absorb the moisture before other repairs are attempted. Sounds like it would be a good idea to keep a bag of rice on hand, and if you don’t need it for first aid on your phone, you can try my favorite, summertime use for rice.
TBA President JACKIE DIXON is a partner with Weatherly McNally & Dixon PLC in Nashville.