Government Affairs Update

Legislators have reached what Senate Majority Leader Mark Norris calls "the stalemate place" on how Tennessee's top judges should be selected and are now racing to delay a decision until next year. After a convoluted series of events, the Senate has before it two proposals for amending the state constitution. The two competing proposals are SJR183 by Norris, R-Collierville, and SJR710 by Sen. Brian Kelsey, R-Collierville. Norris's bill, as amended, would repeal the current constitutional provision declaring that top judges "shall be elected by the qualified voters of the state" and declare instead that the legislature is "authorized to establish, by law, a system of merit-based appointments with retention elections for the judges of the Supreme Court and for the judges of the intermediate appellate courts." Kelsey's measure would adopt a system similar to that used by the federal government. The governor would appoint the judges, subject to confirmation by the legislature. The News Sentinel has the story

The state Senate took a test vote on Thursday to see who likes what method of appointing judges, WPLN reports. A proposal much like the current system got one vote more than a measure that would put a federal-type, appoint-and-confirm system in place. To be eligible to go on the next referendum ballot (November 2014) bills must pass both houses by a simple majority this year, then pass in the next General Assembly by a two-thirds vote. Although the resolutions have been “read” in the Senate, almost a ceremonial step, no votes on the measures themselves have been taken. The earliest that could happen is Monday.

Legislation to abolish the Tennessee Plan and replace it with contested, partisan elections for all appellate judges in 2014 failed in what is expected to be the last meeting of the House Judiciary Committee late today. The vote was 7-7 on HB 173 by Rep. Glen Casada, R-Franklin.

First thing this morning, the Senate held the first reading on two resolutions that cleared the Senate Finance Committee as reported in TBAToday yesterday. Early voting on those resolutions though is not considered to be indicative of the final outcome. SJR 183 by Mark Norris, R-Memphis, permits the General Assembly to adopt a merit appointment system with retention elections. SJR 710 by Brian Kelsey, R-Collierville, forbids merit selection and provides for gubernatorial appointment and legislative confirmation before retention elections.

At midday, the House Finance Subcommittee recommended to the full committee adoption of HJR 830 by Jon Lundberg, R-Bristol, as amended. This bill is considered the analog to Norris' SJR 183. The amendment requires merit-based selection "with the concurrence of the legislature” followed by retention elections. The analog to SJR 710, which is also sponsored by Rep. Lundberg was put over for consideration in the subcommittee until next week.

What does it all mean? It is always hazardous to predict legislative matters, particularly in the fluid, chaotic state of affairs at the end of a legislative session. However it does appear that some of the options for advocates of changing our system are narrowing, as are the options for renewing the current plan. Stay tuned for further developments.

Resolutions to amend the state constitution regarding selection and election of appellate court judges rocketed out of the  Senate Finance Committee today and are set for consideration as the first and second items on Wednesday's Senate floor calendar. Tennessee Bar Association President Danny Van Horn said that removing merit selection and instituting legislative confirmation in Tennessee's judicial selection system, as SJR 710 by Sen. Brian Kelsey, R-Collierville, would do, is  “dangerous experimentation” with our Constitution and will increase the role that politics plays in the selection of our appellate judiciary and possibly their functioning. At present the Tennessee Constitution does not provide for any state office to be subject to legislative confirmation.

The other proposal, SJR 183, sponsored by Sen. Mark Norris, R-Collierville, would amend the Constitution to permit the legislature to enact a system of merit selection and retention elections like our current system. While the TBA would prefer that the Constitutional amendment, if there must be one, prescribe more clearly the system to be created, the Norris resolution at least clearly authorizes the current system, which the bar supports.
 
Gov. Bill Haslam, Lt. Gov. Ron Ramsey, and House Speaker Beth Harwell have previously affirmed unequivocally their support for the current system, saying that they favor extension of the present plan past the August 2014 judicial elections and adopting legislation to specify the outline of the present plan into the constitution. The TBA has been clear in its support for the present merit selection, performance evaluation and retention election system known at the Tennessee Plan, last amended in 2009, and continues to indicate that no amendment to the constitution is needed.