commentary (2006-30)

We’re going to have to call you out on this one

Sorry, Bar Association

by Rikki Hall

A defense of judicial independence authored by the Knoxville Bar Association Board of Governors, a 16-member body representing over a thousand lawyers, appeared in the “Perspective” section of the News Sentinel on Sunday, July 16. The thesis, that judicial independence is critical to the integrity of our democracy, is indisputable. The bar’s application of that principle to the controversy surrounding Chancellor Weaver’s recent rulings on term limits and the charter, however, was full of holes.

The bar association was upset about personal attacks on Weaver and about the idea that judges should “decide the will of the people.” As they explained, the will of the people is expressed through the legislative branch when it drafts and adopts laws. The judiciary makes sure written law is consistent and conforms to the Constitution. Judges also resolve any uncertainties that may arise in applying the law to real-world circumstances. A judge should be free to perform these duties without worrying about public opinion. On that point, I agree with the bar association.

However, this puts me and the bar association at odds with the electoral process for local judges. Whereas federal judges and many state judges are appointed by an executive and approved by legislatures, local judges are directly elected by the people. Federal judges are appointed for life; voters periodically decide whether to retain state judges. Chancellors face re-election every eight years.

When running for office, judges align themselves with a political party, a serious compromise of independence that serves no apparent purpose. They also must engage in the unsavory practice of raising campaign funds, often from lawyers who appear before them. If the Knoxville Bar Association is serious about defending judicial independence, they should advocate reform of the methods by which judges are chosen. At the very least, judicial elections should be non-partisan.

The Board of Governors also seems to have forgotten that judges themselves bear some responsibility for preserving their independence. If a judge has a conflict of interest in a particular case, it is his or her duty to pass the case along to a judge who can rule impartially. Because Chancellor Weaver is on the ballot impacted by his recent rulings, he had a conflict of interest.

The Bailey ruling upholding term limits was problematic because the Tennessee Supreme Court issued its decision after the filing deadline for the May primary. Weaver had to decide how to apply that ruling in Knox County. One potential remedy could have been postponing the May primary to allow the election commission to remove term-limited commissioners from the ballot and to let candidates for vacated seats come forward. Weaver may have been loath to pursue that solution since doing so would have created an opportunity for a challenger for his seat to come forward. That is not a personal attack against Weaver. Other chancery court judges, even the one who is stepping down, would have had personal interests weighing on their minds while considering that option, interests rooted in the fact that they are directly elected.

Weaver might be forgiven for taking too lightly his responsibility to recuse himself in the face of a conflict of interest. The U.S. Supreme Court set a poor example in the 2000 Gore v. Bush ruling. Three justices had immediate family members with significant interests in the outcome: Scalia’s son was being considered for an appointment to the Department of Labor, Rehnquist’s daughter for a job in the Department of Justice, and Thomas’ wife was part of the transition team working to assemble the incoming administration. None of the three recused themselves. If judicial independence is eroding as the bar association fears, it may be rotting from the head down.

By not addressing either the responsibility of judges to maintain their own independence nor how direct election of judges subjects them to the will of the people, the Board of Governors presented a weak argument, but they also warped the “will of the people” concept. Certainly judges should bear no responsibility for gauging public opinion. While the public has the right, if not the duty to discuss court rulings, judges should be immune from consequences of an unpopular decision.

In the charter case, however, “will of the people” means something more profound than mere public opinion. The will of Knox County voters to establish home rule was formally drafted and adopted by referendum. As such, the Charter deserves more respect from the courts than even an act of a legislature. Laws adopted by popular vote are the most formal and direct expression of public will. In its Bailey ruling, the Tennessee Supreme Court likened the charter creation process to our inherent right to dissolve and replace our government, the ultimate check on government authority. By opting to discard rather than repair the Charter, Chancellor Weaver infringed on our right to self-determination.