Gardenhire: Judicial action deserves scrutiny

Gardenhire: Judicial action deserves scrutiny

June 21st, 2014 by By Todd Gardenhire in Opinion Columns

Two months from now, voters across Tennessee will be asked to vote whether or not to keep three incumbent justices on the state Supreme Court. It's a serious decision, and yet it appears there has been a concerted effort in Nashville to keep voters from learning about a potentially serious breach of judicial ethics by one of those three candidates.

Last fall, when the Judicial Performance Evaluation Commission (JPEC) was looking at whether to recommend voters retain or oust various appellate judges who were seeking another team, Chief Justice Gary Wade took great offense when the JPEC initially decided three appellate judges did not deserve the commission's recommendation.

In comments reported by the Knoxville News Sentinel, Wade essentially endorsed the three candidates. That's a no-no, as the state's Code of Judicial Conduct forbids sitting judges like Wade from making political endorsements.

The JPEC itself took note of Wade's ethics violation in its review of his performance as a judge. And while it ultimately recommended Wade get another term, it pointedly criticized him, noting that, "Canon 4.1 of the Code of Judicial Conduct admonishes judges to not 'publicly endorse or oppose a candidate for any public office,' and adding that members of the commission "were troubled by published statements attributed to the chief justice which, if accurate, amounted to active endorsement and public lobbying of this Commission ..."

There is little doubt Justice Wade violated the Code of Judicial Conduct when he told the media that three judges receiving preliminary negative recommendations should be retained. But when another state board, the Board of Judicial Conduct (BJC), was asked to investigate, it promptly exonerated Wade, saying the candidates he endorsed were not actually candidates yet.

But that is not true. When incumbent judges sign the required "Notice of Intent" forms and enter the evaluation process, they are considered candidates for office, even though the ballots haven't yet been printed. As both the JPEC and the BJC said, if they were candidates when Wade issued his endorsements, then those endorsements would indeed be a violation of the ethics rules.

Why the BJC played defense for Wade, twisting words and conjuring up technicalities in order to exonerate him, is a mystery.

While this may all seem like inside baseball to a lot of readers, it's a serious matter that should be fully investigated. The JPEC is supposed to represent the people of Tennessee in the judicial selection process, serving as their eyes and ears in order that voters may be fully informed about whether judges on the ballot are doing their job well enough to get another eight-year term.

Wade and other judges lobbying the JPEC rob that body of the independence necessary for it to do its job properly -- and such lobbying also violates Supreme Court rules. And the Board of Judicial Conduct, by swiftly dismissing the complaint against Wade, has given the public cause to worry that this agency has become a defender of those it is supposed to oversee.

If the Judicial Performance Evaluation Commission's independence is compromised and the Board of Judicial Conduct won't do its job, it is our responsibility as legislators to stand up for the right of Tennesseans to have an ethical judiciary that doesn't see itself as being above the law.

Sen. Todd Gardenhire, R-Chattanooga, represents Tennessee's 10th District, which includes Bradley County and a portion of Hamilton County. He is a member of the Senate Judiciary Committee, the Senate Education Committee and the Senate Energy, Agriculture and Natural Resources Committee.