TBA Law Blog

Posted by: Suzanne Craig Robertson on Jun 17, 2010

Journal Issue Date: Jul 2010

Journal Name: July 2010 - Vol. 46, No. 7

Bredesen says goodbye as candidates discuss key issues facing the legal community

Calling the Tennessee Plan "a fragile thing," that "we came awfully close to losing," Gov. Phil Bredesen addressed a packed ballroom during the Tennessee Bar Association's annual convention in June in Nashville. "It is a great plan. All of us " especially you " need to be careful and judicious and not let it slide.

"I'm OK with the revisions," he told the crowd of lawyers and judges."But I learned " and it scared me " that it would not be hard in this state to have that idea overthrown. It gives us a far, far better result than we could get any other way," he said. "Thank you for your efforts to see that our judiciary remains strong."

Earlier in the day, a panel of lawyer-lobbyists briefed another standing-room-only crowd on the legal issues faced by the four major gubernatorial candidates, as well as how the issues are dealt with in the General Assembly. Nathan Ridley, Fred D. "Tony" Thompson Jr., Tom Lee and Betty Anderson addressed not only judicial selection, but what the new governor should look for in a judicial appointment, indigent defense, the civil justice system, workers' comp, attorney general selection and more. In explaining about TBA legislative policies, Lee said, "Lawyers trust and invest a lot of effort in process. Lawyers trust structure " and process is at the heart of the TBA's position on civil justice issues."

After the panel, the one Democratic candidate, Mike McWherter, took the stage, answering questions on these topics, and later the three Republican candidates, Bill Haslam, Ron Ramsey and Zach Wamp did the same. The forum was moderated by Pat Nolan.

In the chart below is what they said about these issues.


This is a summary of comments from the major gubernatorial candidates on several
issues of interest to the Tennessee legal community. The comments came during the
June 4 Gubernatorial Candidates Forums at the 129th Annual TBA Convention in Nashville.


   Bill Haslam
Bill Haslam
Mike McWherter
Mike McWherter
Ron Ramsey
Ron Ramsey
Zach Wamp
Zach Wamp
Judicial Selection "The system is working now." He would "not want to change the system." Said a statewide election for that "would not be practical." [Cites his work as clerk for Justice Fones where he saw first-hand how the process worked.] "I'm never going to be in favor of an open election for appellate courts."

"You don't need politics to pick appellate or Supreme Court judges."

[referring to the changes last year to the Tennessee Plan] "We improved the system drastically." Pointed out the Modified Missouri Plan is being challenged in Missouri. "We can't overlook the issue of election. I'm not sure the Tennessee Plan will hold up over the test of time." "We need to follow the Constitution, but I'm not sure the current system meets that test."

Electing Trial Judges

"The system now works."

Electing trial judges works. "Judges elected on a local level have more feel for the community." Continue to elect trial judges

"Would like latitude to have a second look (at a second panel of three nominees). "Give the governor as many options as possible, please."

How to fill vacancies " what qualities would you look for in a potential judge?

Would be based on "character, competency and commitment."

Would look to "qualifications and merit, education, experience and character."

Would be based on "experience in courtrooms." "I would be upset if they put their personal opinion on it."

There would be "no litmus test." It would be someone "who will not legislate from the bench."

Criminal Justice (What resources would you allocate for the corrections system? What are your priorities and what about changes in sentencing?)

"Stricter sentencing laws will cut back on crime."

Supports recent effort to enhance time served for armed robbery while lessening time served for minor property crimes.

"Put 'em away and keep 'em locked up." Voted for recent effort.

"I'm a huge believer in alternative sentencing for nonviolent offenders. That's working and we need to do more of it." But "it's simply not true" that we are maxed out on jail space. We need more coordination." We need to "keep repeat offenders off the street."

Indigent Defense (What would you do to change the system? What about the extremely low rates for appointed counsel?)

[citing budget] "To say I'll fund in a different way is not realistic."

"We have to do a better job, but with the budget constraints [that will be hard]."  

To lawyers present: "I understand what you do. YOU are subsidizing the legal system. Thank you."

Balancing the budget is a bigger issue. "Indigent defense fund IS a problem. I understand that you all are underpaid." [Referring to recent budget adoption] "We will fully fund it again, but will set up a committee to work with the association to look for a solution. We need to get a bang for our buck."

"First, thank you to the pro bono lawyers. We should not be making promises [to increase funding ].... We need to look to the private and philanthropic sectors."

Civil Justice System (What changes would you make?)

"We have to consider a cap on non-economic damages." "Caps do not work. Texas tried them and got more law suits. We need to take a look at what Florida did when they enhanced quality of care and law suits went down." "The bar association will be sitting at the table [in these discussions, with him as governor]." The medical malpractice changes of 2008 "generated a reduction in complaints lawsuits ... to eliminate frivolous suits ... it eliminated anyone just chasing an ambulance."

Caps & Limits

"Open to caps on noneconomic damages."

"I don't advocate caps. We have a pretty good system in place right now."

Proposed a $1 million cap. "We're not out of control yet ... I'm in favor of caps on noneconomic damages, but where the cap is set, I don't know."

"Caps lead to a proliferation of litigation. Let's be realistic That doesn't solve the problem. Caps are temporary and arbitrary."

Workers' Comp

"The changes Gov. Bredesen made have been effective and I wouldn't change it."

Does not think the changes were handled well; "the bar was not included enough to make it palatable, but the law got passed." "We were out of whack in workers' comp, but it works very well now. We are competitive with other states." "We're all in agreement that the improvements made were positive."

Attorney General Selection (Should Tennessee change to direct popular election?)

"I will support it if people want to put it on the ballot.... Part of the statewide discussion needs to be that the attorney general is a stepping stone [for future public office]."

Even though we are unique in this [being the only state where the Supreme Court selects the attorney general], we ought to be a model. I think every state should do it this way." There is an "obvious conflict of interest" that those who appoint the attorney general then must answer to him. It will be on the ballot in 2014 "so we don't have an appointed body appointing the attorney general."   He also disagreed with Haslam that the "stepping stone" argument is an issue because "it's all political," pointing out that in this race for governor there are a lt. governor, U.S. representative and a mayor running.

"The will of the people must be heard. We can talk all we want about the Constitution," but the belief is that our attorney general currently is not responding to the will of the people (on the health care issue). "The people are still in charge."

Do you have someone in mind for your counsel, if elected?

No. "The most important thing a governor does is put a team together." He wants someone who will explain both sides of the legal argument, but then also say what he thinks is "the right thing" to do.

"He doesn't have a law degree, but my counsel would be Ned McWherter."

No. "It will be somebody I trust. Someone who is experienced and well-respected in the legal community, and most importantly someone you can trust."

"I think there will be quite a few lawyers in my cabinet. The counsels around the governor would have experience in three areas:
1. law (could be a judge);
2. private sector experience; and
3. deep knowledge of state government

And, I want a little diversity around me."

Taxes on services:

"Not in favor of a tax on professionals." "No." "I don't look at is as a revenue opportunity." "It's opening Pandora's Box."

Suzanne Craig Robertson ?SUZANNE CRAIG ROBERTSON is editor of the Tennessee Bar Journal.