- Associated Press - Tuesday, January 14, 2014

NASHVILLE, Tenn. (AP) - A Nashville judge ruled on Tuesday that the panel that evaluates Tennessee’s appellate judges is invalid because it does not have enough female members.

According to state law, the Judicial Performance Evaluation Commission is supposed to have about the same percentage of women and minority members as the state’s population as a whole. But while Tennessee’s population is roughly 52 percent women and 48 percent men, the commission is made up of two women and seven men, meaning women make up only about 22 percent of the panel.

Ruling from the bench, Davidson County Circuit Court Judge Hamilton Gayden agreed with a lawsuit that claimed the underrepresentation of women on the panel is discriminatory. However, he declined to issue an injunction that would prevent the panel from meeting.

“They can read the law,” Gayden said. “And if they want to meet on Friday and continue to exercise as an invalid commission, that’s their business.”

Asked whether the commission would meet Friday, as previously scheduled, David Haines, the general counsel for the Administrative Office of the Courts, which staffs the commission, said he will have to consult with the Attorney General’s Office.

The Judicial Performance Evaluation Commission’s job is to assess the work of the state’s appeals court judges and recommend whether they should stay in office.

If the commission issues a positive recommendation, a judge faces a yes-no retention vote in a public election. If the panel recommends replacement, the incumbent judge can still run for office, but he or she faces a contested election with the possibility of opponents.

In reality, judges who are recommended for replacement simply retire. No appeals judge has faced a contested election and only one has lost a retention election since the system was put in place in 1994.

The Attorney General’s Office issued a statement after Gayden’s ruling saying, “We respectfully disagree with the trial court’s holding. We are reviewing the decision and evaluating possible options including a likely appeal.”

Senate Judiciary Chairman Brian Kelsey, R-Germantown, said that if an appeal is unsuccessful, his committee could take up the matter.

“The evaluation and performance committee has done a very good job so far, and they need be able to continue and ultimately finish their work,” he said. “And so we need to obviously clear up the law to make sure they can do their work.”

The suit heard on Tuesday made a number of additional claims, including that the system of retention elections is unconstitutional. Plaintiffs John Jay Hooker, Walter Brumit, Anthony Gottlieb and Holly Spann believe the state constitution requires that all judges be elected by a popular vote.

Judge Gayden dismissed those claims, saying the state Supreme Court already was considering a similar case that would decide the issue.

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