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WEB EXTRA: What's Behind Ethics Claim Against Chief Justice?

Posted at 11:12 PM, May 29, 2014
and last updated 2015-09-11 14:49:50-04

NASHVILLE, Tenn. -- Senate Government Operations Chairman Mike Bell suggested in a letter this week that Tennessee Chief Justice Gary Wade had committed a serious ethical breach involving the Judicial Performance Evaluation Commission (JPEC).

That commission recommends whether appellate judges should be retained.  A favorable recommendation means that an incumbent judge will appear on the ballot unopposed, with voters being given a choice between retaining or not retaining the member of the court. An unfavorable recommendation would mean that the judge, if he or she chose to run, would face a contested, partisan election.

Bell has been openly supportive of Lt. Gov. Ron Ramsey's call for voters to oust Wade and two other state Supreme Court justices when their names appear on the August ballot. Bell and Ramsey share a Nashville apartment.

The Senate chairman had filed an informal ethics complaint against Wade last fall. But, because the state's Board of Judicial Conduct did not take action against the Chief Justice, Bell is threatening to hold legislative hearings.

Here's what we know about the controversy:

What did the Chief Justice do?

Wade was quoted in a Nov. 10, 2013, article in the Knoxville News-Sentinel about an initial vote of the Judicial Performance Evaluation Commission that resulted in negative evaluations of three appellate judges -- Jerry Smith, Camille McMullen and Andy Bennett. Here is where the article quoted Wade: 

Chief Justice Gary Wade of Sevierville said in an interview that he believes all three judges receiving negative recommendations from the Judicial Performance Evaluation Commission deserve new terms. ...

Wade said that turnaround time is really the only objective data presented to the panel and the rest is “highly subjective,” though perhaps unavoidably so, including the interviews that provide only “a glimpse” of the multiple aspects of a judge’s responsibilities, duties and his or her handling of them.

“A 30-minute interview does not always give you an accurate picture,” the Chief Justice said, while those who work with them daily have a more complete perspective.

“I believe every judge in the appellate court system is qualified to serve,” he said, citing the extensive background checks, nominating process and qualifying criteria required to win a seat in the first place and personal observation of all the judges in his current role and his background.

Smith’s rejection for retention was the least surprising, given his arrest on DUI charges last year in Knoxville, as Wade acknowledged. But “by every indication, he has dealt with that appropriately” through an alcohol rehabilitation program and otherwise, Wade said, while his record as a judge since 1995 — with a past recommendations for retention — shows his overall ability. ...

McMullen, a married mother of two, may have suffered in the evaluation process, Wade said, simply because she is the youngest and least experienced of the appeals court judges. But she is an “extremely intelligent, extremely conscientious and very well-qualified” judge, he said.

“Her potential has not been realized and I hope the commission will reconsider and let her realize that potential,” he said....

Outside of her personal qualifications, Wade said, there’s a concern about diversity in an overall view of the appeals court system as a matter of maintaining a judicial system perceived by the public to be unbiased.

“Judge McMullen brings diversity to the appellate courts, both in race and gender,” he said. “I believe it is important to the court system that we have diversity.” ...

Wade, who has listened to Bennett argue before him in representing the state as attorney general representative and reviewed his cases on appeal, said Bennett’s role as “teacher” and “historian” were understandably omitted in the evaluation process, but are nonetheless important.

“He is dependable as can be and as steady as a rock,” Wade said.

Wade said, for example, the commission’s recommendation ignores Bennett’s role as the designated coordinator in a complicated, five-year plan to centralize state court functions in one location.

Bell's letter also says he had been told that Wade "actively and aggressively sought to influence JPEC's judicial evaluations," although no evidence has been presented. 

Why did Wade make those comments?

Wade told NewsChannel 5, "I was called upon to ask about the work product of our judges and, when that work product is good, it seems to me that the role of the Chief Justice requires a positive comment upon the quality of the work."

What's the problem?

Some Republicans have suggested that Wade violated judicial ethics guidelines that state "a judge or a judicial candidate shall not ... publicly endorse or oppose a candidate for any public office."

Were the three judges "candidates for public office" at the time of Wade's comments?

Bell and other critics who want to seize Republican control of the state Supreme Court contend that, by asking to be evaluated for possible re-election, the appellate judges became "candidates for judicial office."

The Code of Judicial Conduct states that "a person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office."

At the time of Wade's comments, none of the three appellate judges had filed a "declaration of candidacy" necessary to appear on the August 2014 ballot, according to the Secretary of State's Office.

To be evaluated by the Judicial Performance Evaluation Commission, an appellate judge files a "notice to declare my intent on participation in the appellate judge evaluations for the August 2014 general election retention ballot."  That form goes on to state, "I wish to participate in the appellate judge evaluation process to obtain a recommendation for retention or replacement for the 2014 general election."

In fact, state law requires that the Evaluation Commission must complete its work before the qualifying deadline for the August election.

Two judges, Supreme Court Justice Bill Koch and Court of Criminal Appeals Judge Jerry Smith, filed the paperwork to "participate in the appellate judge evaluation process," but they never filed papers to become candidates for re-election.

Did the Board of Judicial Conduct reprimand or censure the Chief Justice?

Contrary to a claim made by Lt. Gov. Ron Ramsey, an investigative panel of the Board of Judicial Conduct (BJC) dismissed an informal complaint that had been filed by Bell.

That board is considered the official arbiter of judicial ethics for the state's courts. It employs a lawyer, known as the "disciplinary counsel," who specializes in judicial ethics.

Board Chair Chris Craft wrote to NewsChannel 5 that "Disciplinary Counsel determined that the Chief Justice’s comments were not a public endorsement of a candidate for public office intended to influence voters in the eventual election. This would not be a violation of the Rules of Judicial Conduct."

However, the BJC panel did include a cautionary note in a letter to Wade that he "should be aware that because of the ambiguity which is inherent concerning the definition of 'judicial candidate' ... some members of the public might reasonably conclude" that such comments would be a violation of the ethics guidelines.

Still, the letter added, "it cannot be said that the Code of Judicial Conduct has clearly been violated. This complaint has been dismissed and our file has been closed."

In comments to, Craft reiterated his belief that the issue was "ambiguous," adding: “If we are going to prosecute someone for an ethics violation, we want to make sure it is a clear violation.” The story continued: 

Craft also restated a theme conveyed in the letter to TV newsman Williams proposing that Wade’s comments to the newspaper be interpreted as criticism of the Judicial Performance Evaluation Commission, not a clear endorsement of judges seeking re-election. As such, Craft suggested the chief justice of the Tennessee Supreme Court enjoys the same right to spout personal opinions in public about the activities of state boards and commissions as anyone else. 

“Is a judge allowed to comment on the actions of government as a taxpayer and a citizen? I would say so,” Craft said.

Did the Judicial Performance Evaluation Commission find that the Chief Justice had committed an ethical breach?

Bell wrote in his letter this week that "the JPEC evaluation report addressing Justice Wade's actions said plainly '...each of the judges appearing before this Commission were candidates for public office within the meaning of Canon 4.1.' ... Further, the JPEC stated in its evaluation report that if Wade's comments were accurate, they "amounted to active endorsement and public lobbying of this Commission...."

In fact, the JPEC report states it was expressing the view of "several members of this Commission" that Wade's comments crossed an ethical line. It is not known how many members of the predominantly-Republican body shared that viewpoint.

Still, the Commission voted 9-0 that Wade should retain his seat on the Tennessee Supreme Court. 

Were Wade's comments the only political controversy involving the Judicial Performance Evaluation Commission?

No. The Associated Press obtained an email showing that, back in October, commission member Chris Clem was communicating directly with Republican leaders in the Senate, including Ramsey and Bell, about the commission's deliberations and political pressure that was presumably coming from the GOP. Here is an excerpt: 

In it, Clem argues that Tennessee Supreme Court Justice Bill Koch, a Republican, is not as conservative as many of his fellow Republicans think, stating "Koch may be the most liberal member of the Court."

Clem, a former Republican state representative from Chattanooga, goes on to say, "I find it amazing that Koch's ties to Lamar Alexander and his republican credentials continue to allow him to serve." 

In an interview with the AP, Clem said he sent the email because he was getting "pushback" for "going after" Koch, who he believed should not remain in office because of his slow turn-around time in writing opinions. Clem would not say from whom the pushback was coming.

Commission Chairman Bob Jones, a circuit court judge in the 27th district, said there may have been some partisan effort to influence the commissioners' votes, but he does not think his fellow commissioners actually let that lobbying affect their votes.

Clem told the AP, "I was just trying to explain that he's not a great Republican." (Read the email.)