I’ll provide an explanation of each below.
1. Board of Judicial Conduct to Replace Court of the Judiciary: Legislation that dissolves Tennessee’s Court of the Judiciary on July 1, 2012, and replaces it with the Board of Judicial Conduct has been approved. The Court of the Judiciary was created by the Legislature to investigate and, when warranted, act on complaints against judges. The Court has broad jurisdiction to internally investigate, hear and determine charges sufficient to warrant discipline or removal of a judge.
The action to reconstitute the body comes after the Court of the Judiciary received criticism for ineffectiveness in disciplining judges and for secrecy in its proceedings. A Joint House and Senate Judiciary Committee held hearings last year regarding discipline of judges after it was reported there were 344 complaints leveled against Tennessee judges in 2010, with only one resulting in a public reprimand. One of the most frequent concerns was that judges did not recuse themselves from hearing a case where there was a conflict of interest or possible bias against one of the parties.
The new board will consist of 16 members that will serve for a term of three years and be eligible for reappointment to one additional term. This legislation requires the board, on a quarterly basis, to file a report with the chairs of the judiciary committees of each house detailing at least the number of complaints against judges filed during the previous quarter and the disposition of each complaint.
This bill also changes the burden of proof to investigate a judge to probable cause that misconduct occurred instead of substantial likelihood that it did and revises other provisions regarding complaints against judges.
The law aims to provide transparency and fairness to both complainants and judges. It also gives the Board a mechanism to use the new Rules of Judicial Conduct, which are nationally recognized as a model for other states, adopted by the Tennessee Supreme Court.
2: Judicial Selection: Action in the Tennessee Legislature in 2012 was highlighted by passage of a resolution that would allow Tennesseans to vote on whether or not they want to use a merit-based appointment system for selecting the state’s Supreme Court and intermediate appellate judges, followed by a retention vote of the people.
The action follows an announcement made earlier by Gov. Bill Haslam, Lt. Gov. Ron Ramsey and House Speaker Beth Harwell that legislative action is needed under the present system for selecting appellate judges in order to be constitutionally correct. Article VI, Section 3 of Tennessee’s Constitution requires that Supreme Court justices “shall be elected by the qualified voters of the state,” which concerns many lawmakers who believe the current system does not fully satisfy that mandate.
Under the state’s current Tennessee plan for selecting Supreme Court and other appellate judges, a 17-member Judicial Nominating Commission reviews applicants and sends the governor a panel of three nominees for consideration. The governor must then appoint one of the nominees or reject the panel and request a second panel. After being appointed through this process, the appellate judges must stand for approval by the voters after completion of their term, with the people deciding whether to “retain” or “replace” them.
Senate Joint Resolution 710 calls for appointment of state appellate judges in a manner similar to the federal model by allowing Tennessee’s governor to appoint judges to the Supreme Court and state appellate courts, subject to confirmation by the General Assembly, for eight-year terms. Confirmation by default occurs if the Legislature fails to reject a nominee within 60 calendar days of either the date of nomination, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session.
The change set out in the resolution would only go into effect if the Constitution is amended by a vote of the people. The resolution must be approved by a simple majority of the Legislature this year after three readings and must receive a two-thirds majority of both chambers in the following General Assembly. Then it would go to a vote of the people in 2014.
3. Judicial Diversion: The State Senate and House of Representatives unanimously approved legislation which makes state or local officials who have committed a crime during their term of office ineligible for consideration of either pre-trial or judicial diversion. The new law simply adds a criminal offense committed by officials in the executive, legislative or judicial branch to the list of those which are ineligible for judicial diversion, if the crime was committed in their official capacity or involved the duties of their office.
Judicial diversion is a process in criminal law where a person pleads guilty to a crime and can later have the charge removed (or expunged) from their record following a period of probation. It is granted by the judge; hence, its name “judicial.” A person is eligible for judicial diversion in Tennessee if the person does not have a previous class A misdemeanor, felony conviction or has never received diversion or had his or her record expunged before.