- Associated Press - Saturday, March 15, 2014

NASHVILLE, Tenn. (AP) - Until recently, the Judicial Performance Evaluation Commission - a powerful panel that makes recommendations on whether Tennessee’s appellate judges should keep their jobs - went about its business with little outside scrutiny.

Perhaps that is why the panel saw no problem with conducting some of its business by email and conference calls, outside public view.

An open records request from The Associated Press found that the panel discussed several topics that way, including the question of whether members of the public should be allowed to speak at the commission’s meetings.

With a constitutional amendment on the ballot over the way Tennessee nominates, evaluates and retains judges, interest in the commission’s work may be at an all-time high. However, the public only got a glimpse of the evaluation process this past year. Even those discussions that took place at scheduled meetings were mostly conducted in executive session, where members of the public are not allowed to be present.

In Tennessee, Appeals Court and Supreme Court judges are appointed by the governor, but they have to be re-elected to stay in office. A recommendation from the JPEC that a judge be retained means the judge faces a simple up-down vote in the general election. Only once has a judge lost a retention vote. A negative vote means a judge faces a contested election, although in reality, judges with negative votes have chosen to simply retire instead of facing a full-fledged campaign with challengers.

It is not clear exactly how much work the JPEC does outside of its scheduled meetings. The AP’s records request for about six months of emails in which commission members discussed commission business, returned only a few records. Those few records appear to be only those where the staff attorney at the Administrative Office of the Courts was a recipient. Some of them appear to allude to other emails.

Asked to provide other emails between commission members, Administrative Office of the Courts spokeswoman Michele Wojciechowski said that because commission members are mostly private citizens, their emails are not kept on the servers at the Administrative Office of the Courts. The system effectively puts emails deliberating public business out of reach as long as they do not include web addresses that use Administrative Office of the Courts servers.

The loophole has implications for many of Tennessee’s 200-or-so boards and commissions that do everything from promoting soybeans to licensing dentists and are often composed of private citizens acting in a governmental capacity.

The Administrative Office of the Courts also declined to provide emails where it deemed the discussion to concern the confidential evaluations of appellate judges, although the rules that govern the commission’s work state that the JPEC’s “meeting and deliberations shall be public.”

Its interviews with judges also are supposed to be public. But commission members have chosen to give more weight to another section of the rules that declares that evaluations “must be conducted candidly and in strict confidence.”

Commission legal counsel David Haines said the group decided to keep private all deliberations leading up to the panel’s final report, with the exception of the interviews with the judges.

Asked what he made of the provision that the commission’s deliberations should be in public, Haines responded: “How do you produce a document that is confidential until it is released to the public without your deliberations being private?”

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, disagrees with the way the commission interprets the rules.

“I think that section on confidentiality is supposed to protect the lawyers who provide evaluations to the commission,” she said. “But there is no logic for the commission to deliberate in private, just the opposite. It clearly says deliberations should be in public.”

The commission’s final report on the judges was publicly released on March 6. In an introduction, the commission writes that it found the rules governing its work to be “contradictory in certain respects and lacking in definitive guidance on the issue of confidentiality.” The commission has asked the state Supreme Court consider revising them.

While the rules on confidentiality of evaluations may be confusing, no one is arguing that procedural issues should be discussed out of the public view. But in several November emails, JPEC members circulated letters from members of the public who asked to speak at an upcoming meeting and debated the merits of allowing it.

Asked why that debate took place by email, Commission Chairman Bob Jones, a circuit court judge in the 27th district, pointed out that it also was discussed during a public meeting before any action was taken.

Member Chris Clem, who wrote one of the emails, said that “in a perfect world, it would be better if that discussion occurred at an open meeting.” But he argued that members travel from all over the state for meetings and time constraints don’t allow them to discuss everything in public.

Brian Fitzpatrick, a law professor at Vanderbilt University who studies judicial nomination and retention, said the secrecy of judicial evaluation commissions is one of the biggest complaints about them.

“It’s a very different process for federal judges, where the interviews are on television and Senators argue in public about them,” he said. “With these state commissions, a lot of people are just uneasy about them because the public is kind of kept in the dark.”

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