May 20, 2008

Judicious Questions

My post earlier today about the legislative future of Tennessee's Judicial Selection Commission prompted a reader to email with a series of good questions about the so-called "Tennessee Plan," under which a small group of lawyer special interest groups and politicians picks your state appellate judges and supreme court justices even though the state constitution says, plainly, that such judges and justices "shall be elected by the qualified voters of the state."

The Tennessee Plan was adopted 15 years ago. The "qualified voters of the state" have not been allowed to elect a single appellate judge or supreme court justice since then.

The reader's email:

As Vanderbilt law professor Brian Fitzpatrick and others have pointed out, the current Tennessee Plan for selecting appellate judges (including judges of the state Supreme Court) seems, prima facie, directly to contradict the state Constitution which requires appellate judges to be elected by the qualified voters of the state in free and equal elections. This apparent fact leads to several manifest questions:

1. How many convicts have seen their sentences executed (including, perhaps, death sentences) after the sentences were sustained on appeal to judges selected under the Tennessee Plan?

2. Of the convicts in #1 above, how many had their convictions appealed to federal courts on grounds that the Tennessee Plan is illegal under the state Constitution and, thus, that the convicts were denied due process or equal protection because the state circumvented its own laws by having the cases reviewed by illegally selected judges?

3. If no appeals on grounds as described in #2 above have been made, why not?

4. If a member of the Tennessee bar representing a convict neglected to appeal for his client on grounds such as in #2 above, would it not constitute a serious breech of professional responsibility? Specifically, if the defense attorney failed to appeal his client's case on the suggested grounds because of some personal or professional preference for appointed rather than constitutionally elected appellate judges, would not the attorney be involved in an irreconcilable conflict of interest between his own interests and those of his client?

5. At the bottom line, has the enthusiasm for appointed versus elected judges among certain parts of Tennessee society resulted in unconstitutional sentences for individuals, unconstitutional sentences because the judges were seated unconstitutionally? If so, how many individuals and who were they?

Have the citizens of Tennessee permitted zealots for appointed judges to create a moral, legal, and political nightmare of injustice, real or potential, in contradiction to their state Constitution. Shouldn't Tennessee's politicians confront this problem by abandoning the Tennessee Plan and returning the state to the constitutional election of appellate judges, now rather than later?

In recent months, suspects arrested by a Rockwood, Tennessee, police officer, had to be let go and the cases dropped because the officer's high school diploma came from a church-related school and that the Tennessee Department of Education has (without legislative authority) declared such diplomas to be invalid for employment as a police officer - thus invalidating the arrests.

If an invalid diploma can cause an arresting officer's arrests to be invalid, could unconstitutionally seated judges and justices have all of their rulings and decisions over the last 15 years called into question?

The irony here is that the very courts set up by the constitution to decide that question would have an insurmountable conflict of interest in taking the case.

See also:
Kay Brooks
Terry Frank
Vanderbilt law professor Brian T. Fitzpatrick's recent op-ed in the Memphis Commercial Appeal
Fitzpatrick's A Report on Reauthorization of the Tennessee Plan, available online from The Federalist Society.