TBA Law Blog

Posted by: Jonathan Steen on Oct 1, 2014

Journal Issue Date: Oct 2014

Journal Name: October 2014 - Vol. 50, No. 10

On Nov. 4, Tennesseans will have an opportunity to amend our state constitution that will change the way appellate judges are appointed and retained in our state. The Judicial Selection Amendment, also known as Amendment 2, sets forth the way we select our judges who serve on our statewide appellate courts. The text of Amendment 2 will appear on the statewide ballot as follows:

Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following:

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

I am voting for Amendment 2, and I urge you to vote for Amendment 2. I also urge you to encourage others to vote for Amendment 2.

I am voting yes on Amendment 2 for several reasons. First, there have been numerous and expensive challenges to the current method of selecting appellate judges. These challenges threaten to destabilize and weaken our judiciary. Passing the Amendment 2 should end those challenges. Second, a stable, fair and impartial judiciary is important to all of us. Moderation and consistency lead to a good social and business climate. And third, Amendment 2 protects the right of Tennesseans to vote to retain or replace judges at the end of their terms.

The Tennessee Bar Association has supported retention elections for judges on the appellate courts since the early 1970s. The TBA believes that retention elections, when coupled with methods leading to the selection of the best judges to fill vacancies, has given Tennessee one of the best judiciaries in the country. The appellate judiciary is fair and impartial and provides consistent guidance on Tennessee law. Following a complete review of its policy on judicial selection, the TBA Board of Governors voted to support Amendment 2 and the association has endorsed the YES on 2 campaign led by Gov. Bill Haslam, former Gov. Phil Bredesen and former U.S. Sen. Fred Thompson. As the Tennessee Judicial Selection Amendment is expected to be implemented, the system will give us a way to select the best possible candidate because the system will have independence; provide expert guidance; be made up of a diverse group; have transparency; be completely informed as to the qualifications of the candidates; be deliberate; and will result in a list of the best qualified candidates being recommended to the governor.

Amendment 2 has been endorsed by top statewide organizations from across the political spectrum, including the Tennessee Bar Association, Tennessee Farm Bureau Federation, Tennessee Sheriffs’ Association, Tennessee Chamber of Commerce & Industry, Beacon Center of Tennessee, NAACP of Tennessee, League of Women Voters of Tennessee, Tennessee Business Roundtable, Tennessee Bankers Association, Tennessee Fraternal Order of Police, Women’s Political Collaborative of Tennessee, Tennessee Hospital Association, and many others.

Amendment 2 is also strongly supported by leaders in both political parties from every corner our state, including Gov. Bill Haslam, former Gov. Phil Bredesen, former U.S. Sen. Fred Thompson, former Gov. Winfield Dunn, Lt. Gov. Ron Ramsey, Speaker Beth Harwell, Memphis Mayor A. C. Wharton, Jr., Nashville Mayor Karl Dean, Knoxville Mayor Madeline Rogero, Shelby County Mayor Mark Luttrell, Knox County Mayor Tim Burchett, Hamilton Country Mayor Jim Coppinger, former U.S. Attorney General Alberto Gonzales, large majorities in the State House and Senate who voted to place Amendment 2 on the ballot, and many more Tennesseans.

Amendment 2 is also strongly supported by leaders in the judiciary, including Chief Justice Sharon Lee and Justices Wade, Clark, Bivins and Kirby, and many other appellate and trial court judges.

With all the support for Amendment 2, why should we be concerned about its passage? Because much of the support I have listed comes from individuals and groups who are invested in maintaining a qualified, fair and impartial appellate judiciary in Tennessee. Many voters, however, may not be familiar with Amendment 2 and the goals it seeks to achieve. Often voters who are not familiar with an amendment on the ballot will choose to make no choice rather than an uninformed choice. Such votes are tantamount to a no vote, because the amendment must receive more than 50 percent of the votes cast in the gubernatorial election to pass. Put another way, a voter who votes in the election for governor but chooses not to vote on Amendment 2 counts against the number of votes needed to pass Amendment 2.

This is why our efforts to educate voters on Amendment 2 and encourage voters to vote YES on 2 is critical. To help in these efforts, the TBA has created an Amendment 2 Resource Page (www.tba.org/info/amendment-2-to-the-tennessee-constitution) to help lawyers and members of the public understand the issues at stake. The page provides a rich resource of information about Amendment 2 and links to resources offered by the Yes on 2 Campaign. We must all do our part to educate and encourage voters: talk to your family, friends, neighbors and coworkers about voting yes on Amendment 2.

Jonathan Steen Tennessee Bar Association President JONATHAN O. STEEN is a civil trial lawyer with Redding, Steen & Staton PC in Jackson. He is a past president of the TBA Young Lawyers Division.