Undue Burden? Knoxville Attorney Argues That, in Picking Judges, the Governor is Stuffing the Ballot Box

Herb Moncier has his critics, but no one has ever said he isn't creative.

The Knoxville attorney has asked for a petition to be on the ballot for an appeals-court judge position in next year's election. And, of course, he was refused. The only way to be a Criminal Court of Appeals Judge is to be appointed by the governor.

And thereby hangs Moncier's case. He argues that it is well-established law that there should be no "undue burden" on those seeking to run for office. He says not being able to get on the ballot is about as big an undue burden as it gets.

Moncier is focusing on the mechanics of the election. He argues that, under the First and Fourteenth amendments and the state constitution, he has a right to political activity and to access to the ballot. If you can only get on the ballot by being appointed by the governor, how do you exercise your right to be a political candidate?

"The state is required to provide for a free and pure ballot," he says. "It cannot be pure if the governor has stuffed the ballot box—with one name." Moncier says he is qualified to be on the ballot.

He also argues that, under the constitution, the governor cannot appoint a judge unless there is a vacancy. He says the appeals-court judgeship he is seeking is not vacant. Criminal Court of Appeals Judge Joe Tipton has announced that he will not seek retention and will retire when his term ends next August. Thus the seat won't be vacant until after next year's retention election, and, Moncier argues, Gov. Bill Haslam has no authority to appoint a replacement in the meantime. Since there is no candidate on the ballot, Moncier argues, he is entitled to run for the job.

Moncier started out in Knox County Circuit Court but will likely also file in federal court on the grounds of ballot suppression.

Moncier and John Jay Hooker do not have a lot in common. Hooker has filed suit on the grounds that the state constitution says judges will be selected by "qualified voters" and thus the present appointment process is unconstitutional. He's lost that argument before.

But what Moncier and Hooker do have in common is a healthy disregard for the opinion of Tennessee's members of the bar and its panoply of appeals-court justices, who seem to universally approve of judges being appointed and who will find some way to explain away the wording of the constitution and keep appeals court judges from being elected.

"The mechanics of an election require that qualifying petitions be issued," Moncier says. "They won't give me one. Those petitions have to be signed by voters and filed by a certain deadline. They are preventing me from doing so."

Moncier says the effort to avoid electing appeals-court justices has resulted in the "worst of unintended consequences." He argues that well-meaning people have created the present system and gave appeals-court justices eight-year terms to take the politics out of the selection process. But he says the idea that it has kept politics out of the selection of judges over the last few decades is laughable. The politics just occur behind closed doors, rather than at the ballot box.

He says he is running as an independent and that Democrats and Republicans have been guilty of ignoring the constitution. But what really gets him going is the idea that the supermajority of Republicans in the Legislature will have a veto power over judges appointed by the governor. That would be the case if a proposed constitutional amendment is approved by the voters next year. Under the new system, the governor would make an appointment and the Legislature would ratify the choice.

Moncier envisions power politics coming into play—politicians will be making decisions on a judge's political ideology rather than qualifications.

Surely not. Would they do that?

What do you think?