Tennessee Judicial Selection, Amendment 2 (2014)

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Amendment 2
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Type:Constitutional amendment
Constitution:Tennessee Constitution
Referred by:Tennessee State Legislature
Topic:State judiciary
Status:Approved Approveda
2014 measures
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November 4
Amendment 1 Approveda
Amendment 2 Approveda
Amendment 3 Approveda
Amendment 4 Approveda
Endorsements
Expenditures
Local measures

The Tennessee Judicial Selection, Amendment 2 was on the November 4, 2014 ballot in the state of Tennessee as a legislatively-referred constitutional amendment, where it was approved.

Amendment 2 empowered the governor to appoint judges to the supreme court or any other state appellate courts subject to confirmation by the general assembly. Under Amendment 2, an appointed judge will serve an eight-year term. Thereafter, the judge could serve another term via a retention election by voters.[1]

Amendment 2 established a judicial selection system similar to the state's previous system, but dismantled the Judicial Nominating Commission and empowered the legislature to confirm or reject appointments. At the time of the amendment's approval, this process mirrored the selection process for federal judges.[2] Section 3 of Article VI of the Tennessee Constitution, prior to the adoption of Amendment 2, said, "The judges of the Supreme Court shall be elected by the qualified voters of the state." However, the state had not used a merit-selection system since 1994.[3]

Amendment 2 was sponsored in the Tennessee Senate by State Senator Brian Kelsey (R-31) and in the Tennessee House by State Representative Jon Lundberg (R-1) as SJR 2.[1][4]

In Tennessee, a legislatively-referred constitutional amendment must earn a majority of those voting on the amendment and "a majority of all the citizens of the state voting for governor.”

Election results


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This ballot measure article has preliminary election results. Certified election results will be added as soon as they are made available by the state or county election office. The following totals are as of 100 percent of precincts reporting.

Tennessee Amendment 2
ResultVotesPercentage
Approveda Yes 831549 60.92%
No53352239.08%

Election results via: Tennessee Secretary of State Office

Text of measure

Ballot title

The official ballot text was as follows:[5]

Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following:

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.
□ Yes
□ No[6]

Constitutional changes

Tennessee Constitution
Seal of Tennessee.png
Preamble
Articles
IIIIIIIVVVIVIIVIIIIXXXISchedule
See also: Article VI, Tennessee Constitution

The ballot measure amended Section 3 of Article VI of the Constitution of Tennessee to read:[7]

The judges of the Supreme Court shall be elected by the qualified voters of the state. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article. Every judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the state for five years. His term of service shall be eight years.[6]


Fiscal note

The fiscal note developed by the Tennessee General Assembly Fiscal Review Committee was as follows:[8]

ESTIMATED FISCAL IMPACT:
Increase Local Expenditures – Up to $10,000/FY14-15*

Assumptions:

• The proposed constitutional amendment received the required constitutional majority vote with passage of Senate Joint Resolution 701 by the 107th General Assembly. The required publication was made on May 6, 2012.
• Following first passage by two successive General Assemblies, and pursuant to Article XI, Section 3 of the Tennessee Constitution, it shall be the duty of the General Assembly to submit such proposed amendment to the people at the next general election in which a Governor is to be chosen.
• Tenn. Code Ann. § 2-5-211(b) requires the county election commission to publish a sample ballot in a newspaper of general circulation or mail sample ballots to registered voters at least five days prior to early voting.
• The requirement to add this constitutional amendment to the 2014 general election ballot will increase the size of the sample ballot.
• Given the size of the sample ballot will increase, and because publishing costs are generally based on the number of words published or the number of document pages printed, local government expenditures are expected to increase.
• Based on information provided by the Secretary of State, the total statewide increase in local government expenditures is reasonably estimated as an amount up to $10,000 in FY14-15.[6]

Background

See also: Judicial selection in Tennessee

Prior to Amendment 2's approval, the Tennessee Constitution stated, “The judges of the Supreme Court shall be elected by the qualified voters of the state.” Since 1971, however, the state had used a merit-selection process for judiciaries. Since 1994, the Judicial Selection Committee had selected nominees for appellate courts. The governor then selected judges from those nominees, and constituents voted whether or not to retain them. This arrangement was known as the "Tennessee Plan." Amendment 2 dismantled the Judicial Selection Committee.[3] Amendment 2's arrangement is known as the "Modified Federal Plan."[9]

Support

Tennessee Yes on 2 logo 2014.jpg

The campaign in support of the initiative was led by Vote Yes on 2.[10]

The measure was sponsored in the legislature by Sen. Brian Kelsey (R-31) and Rep. Jon Lundberg (R-1).

Supporters

Officials

Senate

The following state senators voted to place the measure on the ballot:[15]

Note: A yes vote on the measure merely referred the question to voters and did not necessarily mean these legislators approved of the stipulations laid out in Amendment 2.
House

The following state representatives voted to place the measure on the ballot:[15]

Note: A yes vote on the measure merely referred the question to voters and did not necessarily mean these legislators approved of the stipulations laid out in Amendment 2.

Former officials

Organizations

  • Tennessee Bar Association[17]
  • Tennessee Chamber of Commerce & Industry[12]
  • Tennessee Business Roundtable[18]
  • Tennessee Farm Bureau Federation
  • Beacon Center of Tennessee
  • Tennessee AFL-CIO Labor Council
  • Tennessee NAACP
  • Tennessee Business Partnership
  • Tennessee Bankers Association
  • Fraternal Order of Police, Tennessee
  • Women’s Political Collaborative
  • Tennessee Lawyers' Association for Women
  • East Tennessee Lawyers' Association for Women
  • Tennessee Hospital Association
  • League of Women Voters
  • Tennessee Sheriffs' Association
  • Tennessee Public Defenders
  • Blount County Bar Association
  • Chattanooga Bar Association
  • Knoxville Bar Association
  • Memphis Bar Association
  • Nashville Bar Association
  • Greater Memphis Chamber
  • Clarksville Chamber of Commerce
  • Jackson Chamber
  • Rutherford County Chamber of Commerce
  • Kingsport Chamber of Commerce
  • Nashville Area Chamber of Commerce
  • Nashville Area Hispanic Chamber of Commerce
  • Knoxville Chamber
  • Chattanooga Area Chamber
  • Williamson, Inc. Chamber

Arguments


Vote Yes on 2 video ad advocating for Amendment 2.

Former Gov. Phil Bredesen (D) and former U.S. Sen. Fred Thompson (R) co-wrote an op-ed outlining supporting arguments for Amendment 2:[12]

  • “A stable and impartial judiciary is vitally important to all of us. But in recent years, there have been numerous legal challenges to the way we in Tennessee select our appellate court judges. These continuing challenges, and the confusion they create, threaten to destabilize and weaken our judiciary and our state.”
  • “Passing Amendment #2 will put an end to the questions and will help ensure we get the most qualified, diverse, fair and impartial judges that Tennesseans want and deserve.”
  • "Amendment #2 gives Tennesseans three powerful votes in the selection of our appellate judges:
  1. By voting for the governor, who will make the appointments.
  2. By voting for our state senators and representatives, who will confirm or reject the appointments.
  3. By voting to keep or fire the judges at the end of their respective terms."
  • "Passing Amendment #2 will help keep the influence of special interest money away from our judges and out of our state."

Other arguments in favor of the amendment included:

  • Former Gov. Phil Bredesen (D) argued that contested elections for the judiciary would allow special and financial interests to become involved. He said, “Suddenly you get at the last minute somebody on there who’s promised to, I don’t know, stop all abortions or something like that. You get just a lot of outside money coming into elections. You can do that to a governor or to a congressman, but I think it’s particularly effective and dangerous with races that people are generally not interested in.”[11]
  • Sen. Brian Kelsey (R-31) suggested the nation’s founding figures developed a similar plan to the one proposed. He noted, “The people of Tennessee are not presently voting for judges in open contested elections. And the people of Tennessee have never been asked whether or not they favor following the judicial selection plan that our founding fathers of the U.S. Constitution came up with. Let’s give them the chance to vote on that.”[19]

Campaign contributions

Total campaign cash Campaign Finance Ballotpedia.png
as of October 27, 2014
Category:Ballot measure endorsements Support: $771,301
Circle thumbs down.png Opposition: $2,250

As of October 27, 2014, Vote Yes on 2 had received $771,301 in contributions.[20]

PAC info:

PAC Amount raised Amount spent
Vote Yes on 2 $771,301 $213,669
Total $771,301 $213,669

Top contributors:

Donor Amount
Tennessee Business Partnership $425,000
BB&S Good Government $75,000
Waller Lansden Dortch & Davis LLP $75,000
Backer, Donelson, Bearman, Caldwell & Berkowitz $50,000
Butler Snow LLP $50,000
Bridgestone Americas Tire Operations, LLC $25,000
Neal & Harwell, PLLC $20,000

Campaign advertisements


A Vote Yes on 2 ad, titled "Gov. Bill Haslam: Yes on 2."

A Vote Yes on 2 ad, titled "Everyone."

Opposition

The campaign in opposition to the amendment was led by Vote NO on 2![21] John Avery Emison was the State Coordinator of Vote NO on 2![22]

Opponents

Officials

Senate

The following state senators voted against placing the amendment on the ballot:[15]

The following state senators voted to place the amendment on the ballot, although they later stated their opposition to the measure:[19]

House

The following state representatives voted against placing the amendment on the ballot:[15]

Former officials

The following former official voted against placing the amendment on the ballot:[15]

Organizations

  • Tennesseans for Independent Courts[23]

Individuals

  • John Jay Hooker (D)[24]

Arguments


Kevin Thompson, an attorney, interviewing John Jay Hooker on Amendment 2.

John Jay Hooker (D), described as a "political legend" by Tennessee Watchdog, called the amendment "a political ploy." He elaborated:

The state constitution says that judges shall be elected by the qualified voters. It’s pretty hard to misunderstand that language.

My view is that the retention election statute is unconstitutional, blatantly on its face and that the judges who sit on the Court of Appeals and the Supreme Court know it, yet they sit there anyway...

There is no way to read the state Constitution to mean that the Legislature has the authority to say they shall be appointed by the governor. [6]

—John Jay Hooker[24]

John Avery Emison, State Coordinator of Vote NO on 2!, urged voters to reject Amendment 2. He argued:

The real truth behind Amendment 2 is the belief that the Governor is able to pick better judges than the public. This is nothing less than an argument against self-government, and a slap in the face of the Governor’s own supporters. If the people are qualified to elect the Governor, why aren’t the voters who supported him equally qualified to elect the Supreme Court, and other appellate courts? The answer is, “Of course, they are.”

We believe a court system of elected judges is a better court system than appointed judges. One has only to look at the conflict, confusion, and lack of accountability to the public that is clearly evident in the Federal court system where all judges are appointed. We believe most Tennesseans agree that our system of electing judges is far superior to the way they do things in Washington. So, our message is simple: Don’t give up the right to vote. Protect the Constitution. Vote NO on 2. [6]

—John Avery Emison[21]

Other arguments against the amendment included:

  • Bret Brandenburg, executive director of Justice at Stake, critiqued the amendment, saying, “It is troubling that Tennessee legislators are pursuing a constitutional amendment that would inject partisan politics into the state’s judicial selection process. For many years, Tennesseans have benefited from a process for picking judges that focuses on  qualifications, not partisan politics. SJR 02 would replace the highly regarded ‘Tennessee Plan’ with a Washington-style system that gives the Governor unilateral authority to pick judges, and subjects confirmations to DC-style gridlock and backroom deals.”[25]

Campaign contributions

As of October 27, 2014, Vote NO on 2! had received $2,250 in contributions.[20]

PAC info:

PAC Amount raised Amount spent
Vote NO on 2! $2,250 $29
Total $2,250 $29

Top contributors:

Donor Amount
Forest Shoaf $1,000
Anthony Hagan $1,000

Media editorial positions

See also: Endorsements of Tennessee ballot measures, 2014

Support

  • Knoxville News Sentinel
  • The Paris Post-Intelligencer said, "The genius of the plan is that it supports both the voice of the people and the freedom of the judiciary, a difficult balancing act."[26]

Opposition

  • The Tennessean said, "You are a responsible voter and should be treated as such. It is incumbent upon us to demand information about candidates and vote our conscience, and not shirk the responsibility that our constitution's authors gave us. We should not give that responsibility to an elite few who believe that only their opinion counts."[27]

Controversies

Ramsey's involvement in retentions

See also: Tennessee Supreme Court elections, 2014

Both Gov. Bill Haslam (R) and Lt. Gov. Ron Ramsey (R) were involved in the campaign organization Yes on 2.

Ramsey also played an active role in opposing the retention of three Tennessee Supreme Court judges in the primary election on August 7, 2014. He argued in interviews with local media that voters had the right to vote yes or no for retention, though he hoped to see Cornelia Clark, Gary R. Wade and Sharon Lee out of office. Clark, Wade and Lee were appointed by former Democratic Gov. Phil Bredesen.[28] Since the current governor, Bill Haslam, is a Republican, Ramsey saw a greater likelihood that Haslam would appoint members of his own party to fill seats on the court.[29]

Since Amendment 2 supporters, like Haslam and Ramsey, argued that the constitutional change would keep politics out of judicial selections, Gov. Haslam expressed concern that Ramsey's involvement in the retention elections could "muddy the waters for Amendment 2."[30][31]

In an interview with Nashville Scene, Ramsey argued that his anti-retention stance in the supreme court race legitimated the retention election process, rather than discouraging support for Amendment 2:

Q: The governor yesterday say [sic] he is worried that the campaign to defeat the three incumbent justices might “muddy the waters,” his words, on his “Yes on 2” campaign. You disagree, presumably?

RAMSEY: I have not talked to the governor about this but I cannot connect the dots on that one. If anything, if we have a true election — as the supreme court has said retention elections are and the people get the right to either retain or not retain — that legitimizes the retention election process. And in my opinion, in the end, will actually help the amendment pass, not hurt the amendment. I cannot understand any argument where it actually hurts it. I don’t. Now, I have not talked to the governor about this. I read it in the news accounts, and I will, I just haven’t had a chance yet. But I cannot understand that argument at all.

[6]

—Lt. Gov. Ron Ramsey[32]

Ramsey's political action committee spent over $400,000 trying to oust the three judges. Nonetheless, all three were retained by voters on election day.[33]

Path to the ballot

See also: Amending the Tennessee Constitution

The Tennessee General Assembly was required to approve the amendment in two successive sessions. In the first session, the measure required a simple majority for approval. In the second session, the proposed amendment needed to earn a two-thirds vote for approval. SJR 2 was approved by the Tennessee Senate for a second time on February 21, 2013. SJR 2 was approved by the Tennessee House of Representatives for a second time on March 11, 2013.[4]

Senate vote

February 21, 2013 Senate vote

Tennessee SJR 2 Senate Vote
ResultVotesPercentage
Approveda Yes 29 93.55%
No26.45%

House vote

March 11, 2013 House vote

Tennessee SJR 2 House Vote
ResultVotesPercentage
Approveda Yes 74 84.09%
No1415.91%

See also

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Suggest a link

External links

Basic information

Support

Opposition

Additional reading

References

  1. 1.0 1.1 Tennessee General Assembly, "Bill Information for SJR0002," accessed January 23, 2014
  2. WUOT, "Haslam Won't Join Campaign To Defeat Tennessee Supreme Court Justices," May 9, 2014
  3. 3.0 3.1 The Columbia Daily Herald, "Tennesseans to vote on abortion, tax and judicial selection amendments," January 5, 2014
  4. 4.0 4.1 KnoxNews, "House approves referendum on appointing judges, agrees to cut per diem," March 12, 2013
  5. Tennessee Secretary of State, "Proposed Constitutional Amendment No. 2 for the November 4, 2014 General Election Ballot," accessed June 12, 2014
  6. 6.0 6.1 6.2 6.3 6.4 6.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  7. Tennessee Legislature, "Senate Joint Resolution 2," accessed January 23, 2014
  8. Tennessee General Assembly Fiscal Review Committee, "SJR 2 Fiscal Note," accessed April 16, 2014
  9. Nashville Post, "Bredesen, Slatery ask biz community to support appellate judge selection amendment," January 15, 2014
  10. Vote Yes on 2, "Homepage," accessed July 25, 2014
  11. 11.0 11.1 11.2 The Tennessean, "Haslam, Bredesen join forces to preserve TN's judicial selection process," January 21, 2014
  12. 12.0 12.1 12.2 12.3 The Tennessean, "Vote Yes on 2 is best path for judicial selection," April 29, 2014
  13. Knoxville News Sentinel, "Political notebook: Alexander backs proposed amendments on Tennessee ballot," July 21, 2014 (dead link)
  14. The Republic, "Newly installed Tennessee Supreme Court justice to campaign for constitutional amendment," August 14, 2014
  15. 15.0 15.1 15.2 15.3 15.4 Tennessee Legislature, "SJR 2 Bill Info," accessed October 27, 2014
  16. The Commercial Appeal, "Campaign for judicial constitutional amendment goes public Tuesday," April 28, 2014
  17. Knoxville Daily Sun, "Tennessee Bar Association backs constitutional amendment on judicial election," November 16, 2014
  18. Vote Yes on 2, "Endorsing Organizations," accessed July 25, 2014
  19. 19.0 19.1 Nashville City Paper, "Senate OKs amending state constitution to change how judges are selected," February 21, 2013
  20. 20.0 20.1 Tennessee Bureau of Ethics and Campaign Finance, "Registered Referendum Committee," accessed August 4, 2014
  21. 21.0 21.1 Tom Humphrey’s Humphrey on the Hill, "Group formed to oppose constitutional amendment on judicial selection," July 10, 2014
  22. Knoxblogs.com, "Legislators among leaders of ‘Vote No on 2′ campaign," September 18, 2014
  23. WatchDog.Org, "Tennessee groups fight over state elections of judges," February 4, 2014
  24. 24.0 24.1 Tennessee Watchdog, "TN political legend calls retention election a ‘political ploy,’ focused on Amendment 2," July 30, 2014
  25. Justice at Stake, "JAS: Proposed Amendment to Tennessee Constitution Would Politicize Judicial Selection," accessed March 11, 2013
  26. The Paris Post-Intelligencer, "Judge selection plan good enough to keep," September 30, 2014
  27. The Tennessean, "Vote no on Amendment 2, sends message of accountability," October 16, 2014
  28. InsuranceNews.net, "Tennessee Supreme Court Chief Justice Barker claims some in state GOP targeting Democrat justices," May 8, 2014
  29. Keep TN courts fair, "Keep Tennessee Courts Fair Campaign Gains Broad Support," accessed June 2, 2014
  30. The Leaf Chronicle, "Haslam: Tennessee judicial campaign could hurt amendment," May 7, 2014
  31. Nashville Post, "Haslam fears Supreme Court push could muddy 'Yes on 2' campaign," May 7, 2014
  32. Nashville Scene, "Q&A: Ron Ramsey On His Controversial Push Against Supreme Court," May 9, 2014
  33. The Tennessean, "Ron Ramsey fails to topple Supreme Court justices," August 8, 2014