As the presidential election focused a national spotlight on state and federal courts, delegations led by chief justices from 17 states, including Tennessee, were drafting a "Call to Action" dealing with how the judges themselves are elected.
Chief Justice Riley Anderson was chosen to represent Tennessee at a meeting between state legislators and judicial leaders held in Chicago in December. Others in the Tennessee delegation were state Sen. Joe Haynes, D-Goodlettsville; Rep. Jere Hargrove, D- Cookeville; and Kathryn Reed Edge, president of the Tennessee Bar Association. The National Summit on Improving Judicial Selection, sponsored by the National Center for State Courts, has resulted in a blueprint - a list of suggestions relating to the cost and processes used to elect judges.
"An overwhelming majority of the 95 participants endorsed a list of 20 recommendations, but there was recognition that each state’s judicial selection process is unique and all recommendations may not apply," Anderson said. "Judicial elections differ in many ways from elections for other offices because judges are prohibited by their codes of conduct from certain common campaign practices, such as making campaign promises. Also, there generally is less media attention on judicial elections so voters sometimes go to the polls knowing very little about the candidates."
Anderson said the summit was important to explore ways to protect the integrity and independence of the judiciary.
"While not everyone agreed on all suggestions, there was complete agreement among participants that we want to do whatever is reasonable to enhance public confidence in the administration of justice," Anderson said. "We rejected the notion that nothing can be done to accomplish that worthy goal."
In Tennessee, trial judges are elected every eight years in local popular elections. The state’s 29 judges on the Supreme Court, Court of Appeals and Court of Criminal Appeals are under the Tennessee Plan calling for retention elections in which voters decide whether to retain judges on a yes-no ballot. When a vacancy occurs between elections, the state’s 15- member Judicial Selection Commission recommends three applicants to the governor, who then appoints a judge.
The summit’s recommendations for consideration by the states in which 87 percent of the nation’s trial and appellate judges face contested or retention elections are:
* All judicial elections, whether direct or retention, should be conducted in a nonpartisan manner.
* States with relatively short judicial terms of office should consider increasing the length of those terms. Term limits, whatever their merits for representative positions, are not appropriate for judicial office.
* All judges appointed to fill a vacant judicial position should serve a substantial period in office before initial election. After initial election, all judges should serve a full term before a second election.
* Educational programs on state election laws, judicial canons, and sanctions for violations should be conducted for all judicial candidates, together with their campaign staff, consultants, and interested family members. The Legislature or Judiciary, as appropriate, should mandate attendance at such programs and ensure that they are adequately funded.
* “Hotlines”” should be established by the Legislature, the Judiciary, or the appropriate judicial discipline body to respond expeditiously to questions about campaign conduct, campaign finance, judicial ethics, or related issues. A judge, candidate, campaign worker or contributor who adheres to the advice provided by this procedure should be accorded a prima facie defense to any subsequent legal action or disciplinary procedure.
* Non-governmental monitoring groups should be established to encourage fair and ethical judicial campaigns. Such groups should include respected and diverse individuals representing state and local bar associations and other credible community organizations. These monitoring groups should take all appropriate means to secure voluntary compliance with high standards of conduct, exceeding those mandated by law. For example, they should be willing, if requested, to conduct advance review of paid advertisements to ensure accuracy and fairness. They should offer mediation and arbitration procedures for campaign disputes. They should develop processes for informing the public about the degree of cooperation and compliance they receive from the campaigns. They should endeavor to secure cooperation in all their endeavors from independent advocacy groups as well as from candidates and political parties. Finally, if necessary, they should be available to comment publicly on the conduct of candidates, political parties or outside groups.
* Canons of judicial conduct and state laws regarding judicial campaign activity should be reexamined to assure that they promote fair elections while safeguarding the right to free speech. To advance this process, one or more organizations committed to judicial integrity, impartiality, and independence should convene a Symposium on Judicial Campaign Conduct and the First Amendment composed of distinguished scholars, lawyers and judges to consider these issues. In addition, the ABA should consider revising the provisions of the Model Code of Judicial Conduct regarding inappropriate activity by judicial candidates.
* Procedures should be studied for resolving professional discipline complaints arising from campaign conduct before the election. Expedited procedures cannot come at the expense, however, of limiting the due process rights of the parties involved.
* State and local governments should prepare and disseminate judicial candidate voter guides by print and electronic means to all registered voters before any judicial election at no cost to judicial candidates. Such guides should provide information that will be useful to voters in comparing the candidates.
* Congress should provide a free federal mailing frank to any voters' guide sponsored by a state or local government.
* Bar associations, either alone or working with a larger and balanced group of concerned citizens and organizations, should conduct evaluations of judges. Evaluation results should be disseminated as appropriate.
* The judiciary should consider establishing independent and objective judicial performance evaluation processes with appropriate safeguards. Participation in these evaluations should include members of the bar and community. Such evaluations have been used in states with retention elections. Evaluation results should be disseminated as appropriate.
* Media outlets should broadcast debates between judicial candidates, and should sponsor such debates if other appropriate groups are not doing so.
* The judiciary, the bar, and other interested groups should devise ongoing programs to educate the public about the judicial process. Special attention should be given to informing educators, students and media representatives about the judicial process. Judges should increase their efforts to explain the judicial role to the public. Where permitted by law, court should be held in venues other than the courthouse, particularly in schools. When feasible, appellate courts should conduct occasional sessions away from their regular sites.
* Courts should use their websites to explain the judicial role to the public. Courts should make as much public information available online as possible, consistent with legitimate privacy concerns. In particular, court dockets and court opinion should be published online as contemporaneously as is consistent with accuracy.
* States in which candidates compete for judicial positions should consider adopting public funding for at least some judicial elections. Even in states that reject public funding for representative officials, the nature of the judicial function makes public funding particularly appropriate for judicial elections. Any public funding system should be sufficiently generous to encourage participating candidates to forego all other sources of campaign funds. The system should be designed to discourage frivolous candidates and to restrict overall spending while allowing appropriate response to independent expenditures.
* States should adopt systems for disclosing campaign contributions and expenditures that provide timely and ready access to relevant information without being unreasonably burdensome.
* By statute or judicial conduct code provisions, states should set appropriate limits on the size of campaign contributions to judicial campaigns.
* States should consider adoption of the 1999 amendments to the ABA Model Code of Judicial Conduct respecting judicial campaign finance, as appropriate in each jurisdiction.
* Some activities of special interest groups in recent judicial elections, particularly those groups located outside the state where the election is being held, have been pernicious. The Symposium on Judicial Campaign Conduct and the First Amendment should also include discussion of creative ways, consistent with the right of free speech, in which state rules as to contribution limits and financial disclosure can be applied to outside groups and individuals as well as candidates and political parties.