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Effort to oust judges crosses more than constitutional line

J. Eddie Lauderback • May 23, 2014 at 9:04 AM

In response to the recent “Question of the Week,” which asked readers: “Should we allow ‘dark money’ to influence state elections?,” my answer is: “Absolutely not.” This is an example of politics at its worst and is exactly what gives the average citizen a bad taste for our political system. For purposes of this response, I am defining dark money as contributions or political funding, whose donors are not disclosed, usually from some out-of-state special interest group, for the purpose of influencing specific elections in Tennessee.As an attorney, I am most concerned about dark money being used to influence the upcoming retention vote for our appellate judges. Lt. Gov. Ron Ramsey, has launched a campaign to unseat Chief Justice Gary Wade, Justice Sharon Lee and Justice Cornelia Clark, all of whom were appointed by former Gov. Phil Bredesen.In a recent email from the Tennessee Bar Association. Ramsey’s 31-page PowerPoint presentation was presented for review.I took the time to review all 31 pages and, unfortunately, I do not believe it contains a fair and complete portrayal of the judges involved or the decisions they have made. For example, in trying to portray the justices as “soft on crime,” the presentation highlights death penalty cases that were overturned by the justices involved.What is not set forth in the presentation is that 18 of the 20 death sentences reviewed by these three justices have been upheld on appeal. One of the cases cited by Ramsey’s presentation involved a conviction in which the issue of mental retardation of the defendant had been raised on appeal. Due to rulings of the U.S. Supreme Court, the Tennessee Supreme Court had no choice but to send the matter back to the trial court. (The prosecutor in that case subsequently agreed to a life sentence.) As Justice Clark has stated, “The Constitution is not a technicality.”Prominent fellow Republicans are voicing opposition to Ramsey’s efforts. Former Tennessee Supreme Court Justice Mickey Barker and former Appellate Court Judge Lew Conner have both expressed their concern over the attack on these justices. According to the Chattanooga Times Free-Press, Conner has accused Ramsey of “cherry-picking” specific cases to present the justices in the worst possible light, and Justice Barker called the attack a “frightening” attempt to turn the judicial branch into another “partisan branch of government.” For those concerned by these tactics, I urge you to do some research and see what has happened and is taking place in West Virginia and other states where “big money” from special interests with deep pockets has attempted to influence cases pending before courts by electing certain judges, shaking the very core of an independent judiciary. Under our current system in Tennessee, the performance of our appellate judges is reviewed by a bipartisan Judicial Performance Evaluation Commission, a panel comprised of several members appointed by Ramsey himself. (Of the nine members of the JPEC, four are appointed by the speaker of the Senate, four by the speaker of the House and one is jointly appointed by both speakers.) The JPEC is charged with the duty to evaluate these judges and to make separate recommendations to retain or replace each of them. (For more information on JPEC, Google “judicial performance commission.”)I would venture to guess a very large majority of persons voting have no idea whether to push the “yes” button or the “no” button when deciding to retain our appellate judges in their positions. Even most practicing attorneys in Tennessee, unless they handle a large volume of appellate work, are unfamiliar with a number of the judges on the ballot in these retention elections, and I count myself in that group. I do, however, review and consider the results of the JPEC in deciding whether each individual judge should be retained or replaced. The 2014 results of the Commission are available for review. The JPEC voted to retain Chief Justice Gary Wade (9-0), Justice Sharon Lee (9-0) and Justice Cornelia Clark (8-1). Biographies of the appellate court judges may be found on the Tennessee State Courts’ website atwww.tsc.state.tn.us/citizens. (I might also add that there have been certain decisions of our state Supreme Court, over the last several years, that I did not wholly agree with or support, just as our U.S. Supreme Court has issued decisions I did not agree with. Rarely, if ever, do judges’ decisions satisfy everyone.)Finally, while I am not so naive as to think there is not some degree of political involvement in the appointment of our appellate judges, our current system consisting of a judicial nominating commission (Governor’s Commission for Judicial Appointments, which is used to make recommendations of qualified candidates to the governor for the filling of appellate judge vacancies) and the JPEC for evaluating the performance of our appellate judges, is a fair process that restricts — as much as possible — undue political influence in selection and retention of judges. Fair and impartial courts are the cornerstone of our democracy. Allowing dark money to influence the independence of our judiciary is a dangerous practice and a slippery slope that leads to corruption. I urge you to vote to retain each of these justices, as recommended by the bipartisan commission that reviewed their body of work.J. Eddie Lauderback practices law in Johnson City.

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