TBA Law Blog

Posted by: Cynthia Wyrick on Jun 19, 2014

A column published June 7 in the Tennessean suggesting that the Board of Judicial Conduct was not doing its job because it did not rule the way that the author thought the board should rule. The complaint seems to be that members of the Judicial Performance Evaluation Commission  (“the Commission”) were “pressured” into changing their votes. Except for this particular attack, the men and women, one-half of whom were appointed by the Speaker of the House and the other one-half by the Speaker of the Senate, have never been criticized regarding the manner in which they performed their arduous task, but instead were looked upon as performing it with unquestioned honor and integrity. The commission must review surveys from thousands of lawyers, litigants and court personnel. They must evaluate the work of highly-skilled jurists with an eye on helping them improve on 22 criteria, grouped in six major categories, including effectiveness in working with other judges and court personnel, service to the profession and the public, preparation and attentiveness, ability to communicate, knowledge and understanding of the law and integrity.

The Commission and the Board of Judicial Conduct (“the Board”), both legislatively-created, play a role in the checks and balances, as the legislature keeps an eye on the effective functioning of a separate and equal branch of our government, the judiciary. The attacks on the integrity of those who serve on these bodies are unwarranted, and the criticism of judges who have unblemished records of integrity are unjust.

In reviewing the conduct of judges, the Commission is to first make a preliminary finding regarding whether an appellate judge should be retained, just as they did in the situation referred to in the piece written by State Senator Janice Bowling. As fairness demands, the judges who thought that their evaluation did not fairly reflect their record because the information was incomplete or issues raised could be fully explained, requested a hearing and had every right to one in order to offer an alternate viewpoint regarding the Commission’s initial findings. Judges and lawyers who have experience with the judges being evaluated should, and did, come forward to recommend a different result. The implication that it was unusual or improper for those opinions to be offered to the Commission is simply false. The idea that Commission members somehow succumbed to this “improper influence” is equally incorrect and untrue.

We then turn to the assault on the Board. Not only has the integrity of the Board’s members been attacked, but there is also the suggestion that it is wrong for the Board to keep matters addressed to it confidential. The statute enacted by the Legislature, which created the Board actually mandates the very confidentiality about which complaint is now made. Only if a complaint is substantiated, after careful review, is it made public. This complained of “secrecy” is similar to the process employed by the Senate Ethics Committee created by Senate rule to oversee complaints made against its own members. Similarly, the Tennessee Ethics Commission procedure which applies to legislative and executive branch officials requires that complaints remain secret until and unless there is a finding of probable cause. This process properly avoids the unfair damage that may result to the reputation of an office holder when an unfounded, improper complaint is lodged. It also allows the investigatory process to proceed as effectively as possible, which process would be harmed by premature disclosure.

In the matter complained about, Disciplinary Counsel made a finding that was confirmed by a panel of the Board, as required by the new statute and rules enacted by the general assembly. This finding was based on a close and careful reading of the Code of Judicial Conduct (“the Code”). The revised Code is the product of an extensive two-year study process undertaken by the Tennessee Bar Association (“the TBA”). The driving purpose behind the TBA initiative was to bring better clarity and definition to the black letter rules that offer guidance to judges and lawyers. Without commenting on the specifics of any case, the rules employ a precision of language necessary in deciding whether a judge should be disciplined or even removed from office. Such precision of language is certainly is far more than some mere "technicality."

The judges are accountable to the voters as elected officials, and will face the voters and their judgment as to whether they should stay in office. Inappropriate and unnecessary distractions that unfairly call into question the integrity of the ethics process should be viewed in light of the fact that they conveniently come during an election year.

Most of us have heard that the true definition of ethics is choosing to do the right thing when no one is watching. Tennessee has one of the finest and most respected judiciaries in the country because the judges we have selected, through a merit-based process, overwhelmingly do the right thing every day when few are watching. We should not allow unwarranted attacks during an election year to take away from this important fact when considering how we will cast our vote!    

Cynthia Richardson Wyrick is President of the Tennessee Bar Association