The Tennessee Judicial Evaluation Commission and the Judicial Selection Commission will cease to exist on June 30, 2009, absent intervening legislation to continue their existence and operation. What will happen if the General Assembly fails to act and either extend the life of the current commissions, or enact alternatives? How will appellate judges be appointed, evaluated and retained? How will trial court vacancies be filled prior to regular elections?
The Tennessee Attorney General issued an opinion last week which concludes as follows:
1. Because there would be no statutory mechanism in place for the election of appellate judges upon the expiration of the two commissions, there could not be an election for appellate court judges in either 2010 or 2014. By virtue of Article VII, §5, of the Tennessee Constitution, incumbent appellate court judges would hold over pending further action of the General Assembly to determine the manner of the election of such judges. On the other hand, expiration of the two commissions would not change the current system for electing trial court judges. Incumbent trial court judges either seeking election in 2010 to the unexpired portion of an eight year term or reelection in 2014 to a full eight-year term could stand for election by the qualified voters of their districts in August of 2010 and 2014, respectively.
2. Vacancies occurring in the appellate courts on or after July 1, 2009, could not be filled because there would be no operative statutory procedure for the filling of vacancies after June 30, 2009. Furthermore, any vacancy occurring before July 1, 2009, on which the Judicial Selection Commission had not completed its work by June 30 could not be filled. Vacancies occurring in the trial courts could only be filled at the next regular August election occurring more than 30 days after the vacancy arose. The provisions of current law directing the governor to appoint persons to fill trial court vacancies on an interim basis before the next regular August election would be inoperative, and, thus, no such appointments could occur.
3. If an incumbent appellate court judge decided not to seek reelection in 2014, there would be no operative statutory procedure to appoint a new judge. Accordingly, the incumbent appellate court judge would hold over in the office by virtue of Article VII, §5, of the Tennessee Constitution. If the incumbent appellate court judge did not desire to hold over, he could choose to resign his office. That action would create a vacancy. However, because there would be no operative statutory procedure for filling a judicial vacancy on the appellate courts, the vacancy could not be filled. By contrast, if an incumbent trial court judge decided not to seek reelection in 2014 and failed to take the steps necessary to qualify as a candidate for reelection, his successor would be elected at the August election to the eight-year term commencing September 1, 2014, by the qualified voters of the district.
Absent legislative action, it will be left to the Tennessee Supreme Court to sort out the confusion that follows. As the June 30 deadline approaches, look for a strong push for the General Assembly to continue the "Tennessee Plan", with or without some tweaking.
Dan Berexa
Nashville, Tennessee
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