TBA Law Blog

Posted by: on Sep 26, 2008

Journal Issue Date: Oct 2008

Journal Name: October 2008 - Vol. 44, No. 10

'Preaching to the Choir' on the Tennessee Plan

The following letters were sent to TBA President Buck Lewis about his column in the August Tennessee Bar Journal, "What's All the Fuss about the Tennessee Plan?"

In me, you are preaching to the choir, but I couldn't pass up telling you what an excellent article you wrote on the Tennessee Plan. I sure hope it gets wide distribution. Folks just do not understand the dangers of judicial elections. I contacted my Legislative Delegation about it and sent them a copy of your article.
— Bill Crutchfield, Chattanooga

I want to take the time to thank you for the article you wrote in the latest issue of the Tennessee Bar Journal pertaining to the Tennessee Plan. It is seldom that I can read an article of this length written by a lawyer that I can find nothing at all to disagree with! Your remarks were "right on the money."
— David E. Caywood, Memphis

I have just read your article "What's all the fuss about the Tennessee Plan" in the most recent Tennessee Bar Journal. It is the best article on this type of subject that I have ever read. I will go further, it is the best article I have ever read in a legal publication!
— W. Jerry Flippin, Milane

I would like to thank Buck Lewis for his well reasoned article in the Tennessee Bar Journal [August 2008] about the selection of judges in Tennessee. While our system may have imperfections, I agree that it is the best system around and results in the selection of highly qualified judges.

The last thing we need to do is to scrap the system and get involved in the highly political, costly system of selecting our appellate judges in contested elections as occurs in some states. While some still claim our system is unconstitutional, even with the Supreme Court decisions to the contrary, even those generally agree that popular election does not result in the selection of the best judges and is unseemly.
— James M Doran Jr, Nashville

Not a Member of the Same Choir

This is submitted in response to that August 2008 article titled "What's All the Fuss about the Tennessee Plan?" The article's author asserts that the Tennessee Supreme Court has, by the cases styled Higgins v. Dunn, 496 S.W. 2d. 480 (Tenn.1973) and Hooker v. Thompson, 249 S.W.3d. 331 (Tenn.1996), found that Tennessee's method of choosing judges is constitutional and those who do not accept those decisions should forget it and get along with life, meaning that the issue is resolved and can not be changed " his mind and that of the judiciary are closed. If the federal judiciary had the same mind-set as the author, then there would be no opinion styled Brown v. Bd. of Education, and Plessey v. Ferguson would remain the law of the land. The only conclusion to be drawn from the article is that the supporters of the Tennessee Plan " retention vote only " believe that the method is perfect and should never again be questioned. This attitude is not unusual by politicians and others dealing from a weak hand. A review of the two cases cited as authority in the article reveal the following:

Dunn case: The court stated that no definition of "election" was in the constitution and that the court had not been referred to a statute or any decision of a Tennessee appellate court that defined "election." The court then concludes that since the retention vote is scheduled on a judicial election day, that it must be an "election." The court does not quote Black's Law Dictionary or any other dictionary definition of "election," nor does the court quote its rule that common every day words should be given its every day meaning " construction is not to be strained. The court totally ignored the statutory definition of "election." Also the court forgot the judicial known fact that "fair and opened elections" of judges had been the norm for 175 years.

Hooker case: The Hooker court was made up of five special judges " all regular judges having recused themselves. The case was dismissed because the plaintiffs were not qualified to hold the office which they sought. The remaining multiple pages in the opinion contain nothing which was germane to the decision of the court in dismissing the case. The special judges were only taking full advantage of their "day in the sun."

Attempting to bury the constitutional violation of the retention vote, the author discusses the "anguish and grief" that judges and/or candidates for judges went through when each had to stand for "fair and open election." Also discussed are the hardships that the members of the selection committee endures in picking the next judge. The judges, candidates and committee members are there voluntarily. In contrast, the Tennessee voters did not voluntarily give up their constitutional right to select their judges. Their right was stolen "like a thief in the night" by the legislature, executive and judiciary following the leadership of the Tennessee Bar Association, all of whom are supposed to be protectors of the people. Hopefully the Tennessee Plan shall remain in controversy until open and fair elections of judges are returned or until the constitution is openly and lawfully amended to justify the Plan.
— Richard Dance, Nashville