TBA Law Blog

Posted by: Journal News on Jun 1, 2013

Journal Issue Date: Jun 2013

Journal Name: June 2013 - Vol. 49, No. 6

An End to Merit Selection?

The Tennessee General Assembly wrapped up its 2013 session early, but not without acrimony, sending senators and representatives home without passing a number of key pieces of legislation.

Legislation to extend the life of the Judicial Nominating Commission failed to win approval April 19, falling by the wayside along with key measures on issues ranging from charter schools to judicial redistricting. With the failure of the bill to extend the JNC, the panel will cease to exist on July 1, meaning there is no way to replace a judge who resigns, dies or retires after that date, TBA Executive Director Allan Ramsaur points out.

The legislature also failed to reauthorize the Judicial Performance Evaluation Commission, which will go out of business July 1, 2014.

Ramsaur describes the shift this way:

With the demise of the Judicial Nominating Commission on July 1, Tennessee’s carefully balanced mechanism for reducing political influence and putting an emphasis on merit selection of judges will vanish. Two generations of Tennessee lawyers have practiced before an intermediate appellate bench chosen through this system. One generation of lawyers have only practiced before trial judges, appellate judges and Supreme Court justices chosen through Tennessee’s well-regarded system. Lawyers will now have to contemplate what the changes mean.

The Tennessee Plan was a carefully woven cloak that insulated the judicial branch from the political branches. The cloak did not isolate the courts from accountability. Lawmakers began to pull a thread in 2009 when they began to restructure the judicial selection commission and the judicial evaluation commission. The unraveling of that cloak is now complete and after the judicial performance evaluation commission expires on June 30, 2014, it may never be as strong or robust or as capable of providing adequate insulation as it was. Tennessee lawyers will have to watch and see what happens to the justice system.

Period of Uncertainty
Tennessee Supreme Court Chief Justice Gary Wade told the website Gavel Grab that no appellate judges plan to retire before the next retention judicial elections set for August 2014. With help from senior judges and other trial judges, Wade said, “we should be able to cover any illnesses or unexpected deaths throughout the remainder of the term without any undue delay to the litigants and their attorneys” at the trial level.

Nomination Process ‘Rigorous, Intense but Fair’
Memphis attorney C. Barry Ward of Ballin, Ballin & Fishman PC has served on the Judicial Nominating Commission since 2009, and on its predecessor since 2002. Calling it “the highlight” of his legal career, he points out that the commision never had a “scandal involving any sitting judges who came through the commission process” or “any sordid tales like sister states over money, bias or other.” He writes that Tennessee was a model for other states’ selection process of judges and that “more than 80 percent of attorneys in Tennessee believed the commission was the way to choose judges, according to a recent survey.”

Ward continues:

The members of this commission worked like a finely tuned apparatus doing its work. ... What you saw was a group of people from all across this state, representing large and small areas, Republicans and Democrats, and rising above partisanship to come together and pursue one goal: selection of the three best qualified applicants to send to Gov. Bill Haslam for his selection for appointment to a judgeship. The commission received no pay, no CLE credit, but was rewarded by a sense we were helping the legal system in an important way, and by the fantastic life stories of the applicants who aspired to become public judges; this was real pro bono publico work. We as a commission sought individuals seasoned by life who were competent in the law and demonstrated an ability to be balanced, blessed with common sense and a sense of fairness. That is what we looked for; it didn’t matter if the applicant was young, old, male, female, black, white, Hispanic, Asian, or other. ...

I’ll suggest that everyone that came before the commission was treated to a rigorous, intense but fair examination.

Read the full account and add your comment at www.tba.org/node/58237/


Lawyer Ad Rules Changes Denied
A petition proposing several rules changes restricting lawyer advertising was denied in April in a per curiam order issued by the Tennessee Supreme Court. In taking the action, the court said, “We have determined that the continued enforcement of the existing rules is preferable to any of the changes sought by the petitioners.”

The petition, which was filed last spring, would have required that lawyers have a “bona fide” office in Tennessee, prohibited actors from portraying clients, banned commenting on results and imposed requirements for pre-submission of ads to the Board of Professional Responsibility.

The petition drew comments from a wide array of organizations and individuals including the Tennessee Bar Association, Knoxville Bar Association, two law school professors from the University of Tennessee, the Tennessee Association of Broadcasters, the Federal Trade Commission and others. TBA Ethics and Professionalism Committee Chair Brian Faughnan authored the TBA comment.

Changes to Conservatorship Law
In April, the state Senate gave final unanimous approval to the bill sponsored by lawyer legislators Sen. Doug Overbey, R-Maryville, and Rep. Andy Farmer, R-Sevierville, making changes to governing conservatorships based on recommendations from the Tennessee Bar Association. At press time, it had been given to the governor, who is expected to sign it. Among the proposed changes, the recommendation establishes a uniform emergency placement process, clarifies the role of guardians ad litem, requires court orders to specify rights being taken away, and calls for more frequent financial reports. The recommendations follow a series of hearings held across the state at which members of the TBA Special Committee on Conservatorship Practice and Procedure, chaired by Jackson lawyer Pam Wright, heard from witnesses who lost all of their assets as victims of conservatorships.

Legal Aid 24/7
Legal Aid of East Tennessee (LAET) has launched an innovative web-based system to improve access to applicants for civil legal services. The system allows persons seeking legal assistance to be able to apply for legal aid 24 hours a day, seven days a week. Take a look at the new system at www.laet.org

Students Honored for Art, Essay and Videos
In celebration of Law Day, the Tennessee Bar Association awarded prizes in its YouTube Video Contest to students who addressed the importance of a fair and impartial judiciary. The 2013 theme, “The Least Dangerous Branch: The Importance of a Fair & Impartial Judiciary,” centered on Alexander Hamilton’s premise in Federalist Paper No. 78 that judiciary is “the least dangerous” branch of government because it “has no influence over either the sword or the purse.”

Also, winners of the TBA Young Lawyers Division Law Day Art and Essay Competition were announced in May. This year’s theme, “Realizing the Dream: Equality for All,” asked students to explore civil and human rights movements in America and the impact they have had in promoting the ideal of equality under the law. Winners receive cash awards and will have their work displayed at the TBA Convention. This year’s competition was coordinated by Chattanooga lawyer Ellie Hill.