- Associated Press - Tuesday, January 28, 2014

Recent editorials from Tennessee newspapers:

Jan. 26

The Tennessean, Nashville, on flawed state processes:

The Tennessee Plan has bigger problems than a constitutional challenge.

Tennessee’s 40-year-old plan that transferred the power to directly elect the state’s appellate judges from the people to a convoluted system of nominating commissions, gubernatorial appointments, evaluation commissions and up-or-down retention elections has been challenged over its constitutionality. A special supreme court, which has been deliberating for more than six months, should rule soon. And that ruling may become moot when voters take up the constitutional amendment to rationalize the current system to the state constitution in November.

But one of the key components of the plan, the Judicial Performance Evaluation Commission, which determines whether judges can stand unopposed for a retention election, has been breaking the rules that govern it since at least 2006.

This month, Circuit Court Judge Hamilton Gayden ruled that the commission’s composition of seven men and two women violated the Tennessee Code statute and Supreme Court rules that govern its makeup, and said the commission violated the 14th Amendment of the U.S. Constitution.

The law states that the lieutenant governor and the speaker of the House “shall make appointments that approximate the population of the state with respect to race and gender” to the nine-member commission. Tennessee is 52 percent female and 17 percent African-American. And the Tennessee Supreme Court has stipulated that the commission cannot deviate from the rules that govern its duty.

Since 2006, the commission has not been close to proportionate to the population, according to the official reports it submitted on which judges should be “retained,” or face no opposition on the election ballot. In 2006, four of the 11 (36 percent) members were female; in 2008, it was four of 12 (33 percent); in 2010, three of nine (33 percent); in 2012, three of nine (33 percent); and this year, two of nine (22 percent).

As the commission members are surrogates for the state’s voters, the Tennessee Plan has effectively determined that women’s votes do not count the same as men’s.

Gayden did not enjoin the commission, an oversight he may regret. The Supreme Court declined to enforce its own rules (Rule 27 in this case) and allowed the commission to meet. It heard the appeals of two judges, Andy Bennett and Camille McMullen, who were on the bubble, and cast the votes that determine whether judges can stand unopposed, retaining all judges whose terms are set to expire in 2014.

By not enforcing its own rules, the Supreme Court violates one of the most important aspects the commission evaluates, integrity; yet not one nay vote was recorded for a Supreme Court justice’s retention.

By not following the statutes they are sworn to uphold, Lt. Gov. Ron Ramsey and Speaker Beth Harwell violate their oaths of office and the trust we place in them.

Defenders of the Tennessee Plan argue that voters are not competent to elect the best judges, that “big money” will sway our ill-informed electorate and give us an appellate court system that is capricious. They say we need a system that is not subject to the vagaries of the political process.

Yet the plan they defend has resulted in a process that blatantly excludes the people of the state at nearly every turn, that reveals a petty arrogance in the appointment and performance in its execution. And our faith in the independence and integrity of our courts is undermined.

So, regardless of the special supreme court’s ruling on the constitutionality of the Tennessee Plan, the 2014 judicial appellate elections should be in question.

If the Judicial Performance Evaluation Commission is unconstitutionally seated, then its votes on whether to retain judges are invalid. If the commission cannot issue a report, then the August elections should be open for any qualified candidate.




Jan. 28

The Paris (Tenn.) Post-Intelligencer on the Senate being short on solutions:

There’s plenty of hot air coming from Washington these days about the inability of the Senate to get anything done (to say nothing about the House).

Senators of both parties agree that “the greatest deliberative body in the world” is stuck in the mud. What they don’t agree on is what to do about it.

Nobody seems to know how to get past the name-calling and blame-fixing. There’s plenty of blame to go around, but few willing to accept any of it - and fewer who are suggesting a feasible way to get past the roadblock.

They’re more content to pass around accusations.

An example is a bill to extend long-term benefits for the unemployed.

Three weeks ago, enough Republicans joined the majority Democrats to move the measure closer to a final goal. Now it’s stuck solidly again.

The logjam stems largely from Majority Leader Harry Reid’s steps to prevent multiple amendments from tying the Senate in knots and perhaps leading to new efforts to roll back parts of the Affordable Care Act.

Republicans say Reid acted arbitrarily, haughtily. He points to repeated partisan attempts to block President Barack Obama’s agenda, including the president’s federal judgeship nominations.

Reid says half the filibusters of executive and judicial nominees in the nation’s history have occurred since Obama took office. He sees those actions as part of a broader effort to block the administration’s agenda.

Republican Sen. Lamar Alexander of Tennessee counters that Reid has restricted floor amendments nearly twice as many times as the previous six majority leaders combined.

“It’s not about process,” Alexander said. “It’s about issues.”

What it’s about is partisan politics, plain and simple. It’s about determined efforts to nullify the impact of the president and win control of both houses of Congress.

It’s about elected lawmakers who care more for party advantage than about the national good.

The Democrats are as much to blame as the Republicans. A pox on both their houses.




Jan. 28

News Sentinel, Knoxville, on why attorney general’s opinions shouldn’t have force of law:

State Sen. Frank Niceley, R-Strawberry Plains, has carved out a niche for himself as one of the Legislature’s constitutional originalists and an advocate for better civics education in Tennessee.

For example, he has supported legislation that would give party caucuses within the Legislature the authority to appoint candidates for the U.S. Senate, a nod toward how senators were selected prior to the 1913 passage of the 17th Amendment.

So it is puzzling to find him sponsoring a bill that would violate the separation of powers doctrine and give unprecedented authority to the state attorney general.

Niceley’s bill would give legal opinions issued by the attorney general the force of law, essentially making the position a “super legislator” and “super judge” all in one. That is not in the best interests of the state, nor is it permissible under the constitution.

The Tennessee constitution explicitly calls for separation of state powers into three branches: legislative, executive and judicial.

The state attorney general is appointed by the state Supreme Court - for now, at least - and acts as the state’s lawyer. The attorney general represents the state in all legal proceedings and offers his or her legal advice to state officials upon request. That advice is non-binding - that is, it is an opinion, not an order, and officials are not required to follow the advice.

Niceley’s bill would change that. If passed, it would make the attorney general’s written opinions binding on state, city and county governments until a court overturns them or the General Assembly changes the relevant laws.

That would mean that with a stroke of his pen, Attorney General Robert E. Cooper Jr. could turn a bill into law, even one that has no possibility of passing in the General Assembly. And even if the Legislature overturns Cooper’s opinion by amending the law in question, Cooper could hold it to be unconstitutional.

Such a bizarre arrangement clearly was not the intent of the framers of the Tennessee constitution, and it obliterates the lines separating the three branches of state government.

Niceley’s bill also popped up at a curious moment, as legislators contemplate changing the way the attorney general is selected. Last year the Senate voted to take appointment authority away from the Supreme Court and turn it over to a joint legislative committee. The Senate was scheduled to vote Monday evening on a bill that would make the office an elected position. In either case the matter would end up having to go to the voters as a constitutional amendment.

The method of selection does not need changing, and neither do the office’s duties. Cooper’s written opinions can and should carry great weight as the Legislature debates various controversial bills. His office does serve as the state’s legal counsel, after all.

But it bears repeating that an attorney general’s opinion is advice, not a decree.

Officials are free to disregard that advice, and sometimes do, but to fundamentally alter the role of the attorney general is misguided. The principle of the separation of powers must be maintained.



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