jpec information for the davidson county grand jury

For the Information of the Grand Jury June 23, 2014

We promise you that if you will listen to us and read the documents we are going to give you that you can understand what we are saying as well as anybody, lawyer / non‐lawyer or whomever, this is a matter where the choice is between right and wrong. We have come here this morning having brought a lawsuit to challenge the recommendation of the appellate Court judges to have their name on a ballot without opposition in August 7th 2014 the purpose of that lawsuit was to protect the people from an unlawful election. We have likewise attempted to get the Legislature to be involved in this matter for the same purpose. This is not a partisan or political conflict this is a moral issue. There is a conflict between those who ignore the law and the Rule of Law. We have come here on a citizen to citizen basis because in the final analysis the members of the Grand Jury picked at random from the citizenry are the people’s best defense against criminal conduct. It is the Grand Jury that has the power to indict misbehaving public officials or in the alternative to write reports that expose to the public their misconduct for the benefit of the public. We do not come here for the purpose of seeking an indictment but rather for the purpose of explaining the judicial crisis that confronts us in the hopes that the members of this Grand Jury, who are the People’s ultimate protector more than any other public officials, will consider the facts in this situation and protect the People’s right to a lawful election, so there will be no need to indict the Judges for Official Misconduct or otherwise, TCA §39‐16‐402. However, if the Grand Jury were to subpoena them, they would soon ascertain that all the appellate Judges who have accepted the unlawful recommendations hereinafter described, violated the law for their own economic benefit. Unfortunately in the election of August 7th 2014 ‐ 22 Judges will be unlawfully on the ballot, because in order to run in an election without any opposition, the Judges must be recommended by a Commission popularly known as JPEC which stands for Judicial Performance Evaluation Commission. That Commission is the creature of the law, passed by the Legislature and it must be conducted under the rules set out by the Legislature and by Rule 11 and Rule 27 of the Tennessee Supreme Court. In fact JPEC is part of the Judicial Branch of Government and subject to the supervisory power of the Supreme Court itself. Under the aforesaid provisions and supervisory powers of the Supreme Court, some of which are inherent powers and others that are statutorily granted, the Supreme Court had a duty to see that the JPEC was properly seated, because under the Rules of the Supreme Court, the Commission has “no power to waive or modify any provision

For the Information of the Grand Jury June 23, 2014 2

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of the rule,” including the requirements for race and gender approximation. The rule is set out in TCA §17‐4‐201, which statute is attached hereto, as is Supreme Court Rule 27 which created the JPEC, and Supreme Court Rule 11 which gives the Supreme Court the power and the responsibility to oversee any judicial circumstance that needs attention and gives the Court the power under Rule 11 (5), “to take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within this State.” Unfortunately, the Speakers of both Houses of the Legislature failed in their responsibilities under TCA §17‐4‐201(b)(6) and the Rule 27 Sections 2.01, 2.02, 2.03 and Sections 4.02, 5.01, 5.02, 5.03 and 5.04, which requires the Commission be balanced as to race and gender, so that all the people are equally represented. Instead, the Speakers appointed 7 men and 2 women when in fact there are more women who live in Tennessee than men, and consequently the Speakers obviously violated the law and “discriminated” against women when they appointed the Commission. Therefore more than half the voters of the State are not properly represented by the Commission. That circumstance occasioned by the lawsuit of Hooker, Brumit, Gottlieb and Spann vs. Lt. Gov. Ron Ramsey et al that challenged the legality of that situation. That case went to court and the Court concluded that the JPEC was indeed unlawfully seated in violation of the aforesaid statutes and Supreme Court Rules and likewise violated the Due Process Clause and Equal Protection Clause of both the Federal and State Constitutions. That case was decided by Judge Hamilton Gayden of the First Circuit Court of Davidson County on January 15th 2014. Thereafter on January 17th armed with his opinion, which is attached hereto for your reading, the four Plaintiffs in that case appeared before the JPEC and requested the JPEC to acknowledge that the Commission was unlawfully seated, an accordingly take action to rectify that circumstance before the Commission recommended any Judges for retention election. The Commission astonishingly declined, and in violation of the law recommended all 22 Appellate Judges who were seeking to run in a Retention Election, without any candidate opposition on August 7th 2014, notwithstanding, the fact that the Commission was obviously unlawfully composed. However, despite the unlawful conduct of the Speakers in making the unlawful appointments, and despite the unlawful conduct of the JPEC in making the unlawful recommendations, the ultimate judicial crisis was created by the fact that all the members of the appellate Courts, in reliance upon the unlawful recommendations of JPEC, filed a Declaration of Candidacy to put their names on the ballot, in direct violation of Supreme Court Rule 11, 27, and TCA 17‐4‐201. In other words, it is the Supreme Court itself in accepting


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unlawful recommendations to be on the ballot when the Court had the supervisory powers to require that the Commission to act in a lawful manner that is the culprit that has caused the judicial crisis in this State. That circumstance is ultimately responsible for the fact that the election on August 7th 2014 will be in direct violation of the law. A Judge cannot run in a Retention Election unless the Judge meets the Constitutional requirements regarding age and residency. In addition a Judge to run in a retention election must be lawfully recommended under the aforesaid rules as otherwise the Commission has “no power to waive or modify any provision of the Rules,” [Supreme Court Rule 27, 2.03]. We have come here this morning to answer any question that you may have in the firm belief that each of you have the facility to understand this circumstance and the sense of responsibility to do something about it. For all practical purposes in this instance your authority to address this matter and report upon it, is the People’s best hope to have the matter fairly addressed so as to prevent a corrupt election, depriving the people of their basic constitutional rights, particularly the women of this State who in many instances have different issues than men, and who under the law are entitled to equal representation. The women of this State are entitled to their full representation. There are many examples where women’s rights are violated but none more obvious than this situation that obviously discriminates against women. We are here because we believe in the integrity and intelligence and the love of justice which has made each of you willing to serve on this Grand Jury. We are therefore hopeful that you will take the appropriate action regarding the conduct of the aforesaid law violators, because we believe that you believe that the Judges of this State cannot themselves be above the law, and must be accountable under the Rule of Law if we are to restore justice in this State. ///


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________________________ John Jay Hooker 115 Woodmont Blvd. Nashville TN 37205 615‐269‐6558 [email protected] ________________________ Tony Gottlieb 4108 Brush Hill Road Nashville, TN 37216 615‐405‐8083 [email protected]

_____________________ Holly Spann 21 Vaughns Gap Nashville, TN 37205 615‐812‐2551 [email protected] _____________________ Walter Brumit 30 East Dale Court Greeneville TN 37745 423‐23‐0157 [email protected]

IN THE FIRST CIRCUIT COURT FOR DAVIDSON COUNTY, TELJt:. ED JOHN JAY HOOKER, WALTER ) 201~JAR15 AHI/:48 BRUMIT, and ANTHONY ) GOTTLIEB, )

Plaintiffs,

v.

LT. GOVERNOR RON RAMSEY, HOUSE SPEAKER BETH HARWELL, HON. ROBERT JONES, MICHAEL E. TANT, CHRISTOPHER CLEM, HENRIETTA GRANT, J. GREGORY GRISHAM, RON. ROBERT MONTGOMERY, JR., HON. J MICHAEL SHARP, RENATASOTO JOSEPH A. WOODRUFF, DAVID HAINES, SECRETARY OF STATE TRE HARGETT" GOVERNOR BILL HASLAM, and ATTORNEY GENERAL ROBERT E. COOPER, JR.

Defendants.

) )

) ) ) )

) ) ) ) ) )

) ) ) )

) ) ) ) )

FINAL ORDER

RICH,l,RD R. ROGKER. ClERK

'~1~

No. 13C-S012

This cause came on to be heard on January 14, 2014, on the Defendants' Motion

To Dismiss Plaintiffs' Amended Application for Declaratory Judgment and an Injunction, on

Plaintiffs Motion to Amend the Amended Application to name Holly Spann as a Plaintiff, and on

the Motion to Allow and Accept Amicus Brief of Mr. James D. R. Roberts, Jr. Based 00 the

pleadings of the parties, the arguments of counsel, the applicable law and the record as a whole,

the Court makes the following findings of fact and conclusions of law:

I. This Court finds that Plaintiffs' general challenges to the constitutionality of the

Retention Election Statutes, Tenn. Code Ann 17-4-101, et seq. are currently pending before the

Special Supreme Court in the case of Hooker v. Haslam, No. M2012-01299-SC-Rll-CV, and

therefore, such claims shall be dismissed under the doctrine of prior case pending.

2. TIlls Court finds that Plaintiffs, John Jay Hooker, Walter Brumit and Anthony

Gottlieb have standing to challenge alleged procedural denials of their constitutional right to

present grievances before the Evaluation Commission, to challenge the conduct of any Judge

under Article 1, sect. 23 and Supreme Court Rule 27, Section 2, alleging they were denied that

right, stating a recognizable basis affording them standing both as to subject matter and personal

standing, if true.

This Court also finds that John J. Hooker by reference, is a professed judicial candidate

based on findings in the case of Hooker v. Haslam, No. M2012-01299-SC-RII-CV, and thus

has separate standing.

This Court finds that Plaintiffs ' motion to amend to add Holly Spann as a Plaintiff, -

representating women of Tenoessee, is well-taken, and as such she also has standing in her

own behalf and as representative of the female population of the State.

3. This Court finds that the decision of Mander v. Board of Professional Responsibility,

M2012-0079-COA-R3-CV, 2013 WL 2490576 (Tenn. Ct. App. Jillle 6, 2013) is controlling as to

the issue of the validity ofTeno. Supr. Ct. R. 27, and the Plaintiffs' challenges to the

validity of Rule 27 should be dismissed.

The Court further finds that the Supreme Court has the sole authority to establish the

procedures of its agencies pursuant to Teno. Sup. Ct. R. 27 and the Supreme Court has

established the procedures for the Judicial Perfonnance Evaluation Commission.

The court finds that it is without authority or power to issue injilllctive relief against the

Judicial Evaluation Commission or its members as the sole power to administer the Judicial

Evaluation Commission lies with the Supreme Court of Tennessee.

4. TIus court finds that all Plaintiffs have standing to seek a declaratory judgment as to

the validity of the composition of the Judicial Perfonnance Evaluation Commission under the

provisions of the Tenn. Code Ann. 17-4-201 (b )(6) which reads: " The appointing authorities for

the judicial performance evaluation commission shall make appointments that approximate the

population of the state with respect to race and gender. . . the speakers shall receive, but shall not

be bound by, recommendations from any interested person or organization."

5. This court finds that the language of the legislative enabling statute for the

membership of the nine member Judicial Evaluation Commission language is

mandatory, not permissive, and requires that the appointing authorities for the Judicial

Performance Evaluation Commission shall make appointments that approximate the population

of the state with respect to race and gender.

Tbis Court takes judicial notice of the fact that the population of Tennessee,

according to the United States Census Bureau for 2012 is 52% women, 48% men

and 17% African- American, rounded off.

This Court finds that the composition of the current Judicial Perfonoance Evaluation

Commission consists of nine men and two women and therefore, only

represents 22% of the female population of this state and 11 % of African- Americans

popUlation.

6. This Court concludes that the composition of the current Judicial Perfonnance

Evaluation Commission is invalid ab initio under Tenn. Code Ann 17-4-201(b)(6) and is

discriminatory against the female and black population of the State of Tennessee. in violation of

the Equal Protection and Due Process Clauses of both the United

States and Tennessee Constitutions.

7. This Court declines, however, to enjoin any further actions of the

Judicial Performance Evaluation Commission and denies Plaintiffs' request for injunctive relief

nor to declare that the actions of the Judicial Evaluation Commission "null and void", as such

declarations would invade the province of the Supreme Court of Tennessee.

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that:

1. Defendants Motion to Dismiss Plaintiffs' general challenge to the

constitutionality of the Retention Election Statutes is granted;

2. Defendants Motion to Dismiss Plaintiffs' challenge to validity of Tenn. Sup.

Ct. R. 27 is granted;

3. Defendants Motion to Dismiss Plaintiffs' Amended Application on the

grounds that Plaintiffs lack standing is denied;

4. Plaintiffs' request for a declaratory judgment as to the validity of the

composition of the Judicial Performance Evaluation Commission is granted and the Court rules

that the Judicial Performance Evaluation Commission is invalid under Tenn. Code Ann. 17-4-

201 (b)(6) and unconstitutional under the Due Process and Equal Protection Clauses of the United

States and Tennessee Constitutions as being discriminatory toward the female and'black

population of the State of Tennessee;

5. The Plaintiffs' request for injunctive relief enjoying any further actions of

the Judicial Performance Evaluation Commission is denied; the Plaintiffs' petition for this court

to declare the actions ofthe Judicial Evaluation Conunission "null and void" is denied;

6. That Plaintiffs' Motion to Amend to add Holly Spann as a PJaintiffis

granted;

7. That Mr. Roberts' Motion to File an Amicus Brief is granted; and

8. That all costs are assessed against the Defendants for which execution may

issue.

IT IS SO ORDERED. ~4(4-Judge Hamilton V. Gayden, Jr.

I hereby certify that an exact and true copy of the foregoing has been mailed to:

Janet Kleinfelter Deputy Attorney General Office of Attorney General P.O. Box 20207 Nashville, TeIUlessee 37202

John Jay Hooker 115 Woodmont Blvd. Nashville, Tennessee 37205

On this the I~y of January, 2014.

Clerk

APPENDIX‐ For the information of the Grand Jury 1

SUPREME COURT RULE 10 Canon 2 Rule 2.12 Supervisory Duties (B) A judge with supervisory authority for the performance of other judges shall take reasonable measures to ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of matters before them. Supreme Court Rule 11: Supervision of the Judicial System. I. General. This Rule is promulgated pursuant to the inherent power of this Court and particularly the following subsections of T.C.A. § 16‐3‐502, providing that the Supreme Court shall have the power: … (5) To take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state. (6) To take all such other, further and additional action as may be necessary to the orderly administration of justice within the state, whether or not herein or elsewhere enumerated.” Its purpose is as follows: … c. To promote the orderly and efficient administration of justice within the State. II. Functional improvement of judicial system –

a. The judicial system of this State henceforth will function as an integrated unit under the direction and supervision of the Supreme Court.

Supreme Court Rule 27: Judicial Performance Evaluation Program. 1.04. The Tennessee General Assembly has enacted laws that establish a merit‐based process for selecting and retaining the members of Tennessee's three appellate courts. To promote informed retention decisions, Tenn. Code Ann. § 17‐4‐201(c) requires the Judicial Performance Evaluation Commission to publish reports concerning each appellate judge seeking election to an unexpired term or election or reelection to a full eight‐year term. In addition to its primary purpose of self‐improvement, the Judicial Performance Evaluation Program must provide information that will enable the Judicial Performance Evaluation Commission to perform objective evaluations and to issue fair and accurate reports concerning each appellate judge's performance. 1.05. In Tenn. Code Ann. § 17‐4‐201(a)(1), the Tennessee General Assembly has given the Tennessee Supreme Court the responsibility to promulgate a rule establishing the judicial


performance evaluation program for appellate judges. Section 2. Judicial Performance Evaluation Program. 2.01. In accordance with this Court's inherent supervisory authority over the court system and the judges, and pursuant to Tenn. S. Ct. R. 1 1, Tenn. Code Ann. § 16‐3‐501 and Tenn. Code Ann. § 17‐4‐201(a)(1), there is hereby established a Judicial Performance Evaluation Program as part of the judicial branch of state government. 2.02. The Judicial Performance Evaluation Program shall be administered by the Judicial Performance Evaluation Commission established by Tenn. Code Ann. § 17‐4‐201(b). 2.03. The Judicial Performance Evaluation Commission shall have the responsibility for the design, the implementation, and the day‐to‐day operation of the Judicial Performance Evaluation Program. The Commission's decisions shall be consistent with this rule, and the Commission has no power to waive or to modify any provision of this rule. Section 4. Evaluation Procedure for Appellate Judges. 4.01. The Judicial Performance Evaluation Program shall include the regular evaluation of the performance of appellate judges. The evaluations shall be carried out using professionally accepted methods to provide objective and reliable evaluations and to reduce the risk of unfair ratings and statistical comparisons. Evaluations shall be based on sufficient data to ensure the statistical reliability of the evaluation information. 4.02. The Judicial Performance Evaluation Program for appellate judges, in addition to being used for self‐improvement purposes, shall also be used for the evaluation required of appellate judges seeking election to an unexpired term or election or re‐election to a full eight‐year term under Tenn. Code Ann § 17‐4‐201(b). Section 5. Evaluation Procedure for Appellate Judges for Retention Recommendations. 5.01. The Judicial Performance Evaluation Commission created by Tenn. Code Ann. § 17‐4‐201(b) shall perform evaluations of all appellate judges seeking election to an unexpired term or or election or reelection to a full eight (8) year term for the purpose of aiding the public in evaluating the performance of the appellate judges in accordance with the provisions of this rule. 5.02. (a) The Judicial Performance Evaluation Commission's evaluation shall be consistent with the criteria in Section 3.01 and shall be based on the results of the evaluation surveys, on the personal information contained in an approved self‐reporting form, and on such other comments and information as the Commission shall receive from any source.


(b) If, because of gubernatorial appointment, an appellate judge holds office less than one year before the filing deadline of a declaration of candidacy for either an unexpired term or a full eight‐year term, and evaluation surveys are not available, the Judicial Performance Evaluation Commission shall conduct an evaluation and make a retention recommendation using an approved self‐reporting form, the judge's application, and other reliable information. 5.03. The Judicial Performance Evaluation Commission, or a panel thereof, shall conduct a public interview with each appellate judge seeking election to an unexpired term or re‐election to a full eight‐year term. The Commission's meetings and deliberations shall be public. 5.04. The Judicial Performance Evaluation Commission may accept, and in its discretion, may solicit public comments concerning the performance of the appellate judges seeking election to an expired term or election or re‐election to a full eight‐year term. The Commission shall provide each appellate judge with a reasonable opportunity to respond to any information or comment received by the Commission regarding that judge prior to the preparation of the Commission's evaluation of that judge. TCA §17‐4‐201 (a) (1) By rule, the supreme court shall establish a judicial performance evaluation program for appellate court judges. The purpose of the program shall be to assist the public in evaluating the performance of incumbent appellate court judges. The judicial performance evaluation commission, established pursuant to subsection (b), shall perform the required evaluations. The commission shall make a recommendation either "for retention" or "for replacement" of each appellate court judge; provided, that the commission shall not evaluate or make any retention recommendation with regard to any appellate judge whose term of office is abbreviated because of death, resignation or removal. Furthermore, the commission shall not include within the final report, publicly disclosed pursuant to subsection (c), an evaluation or retention recommendation for any appellate judge whose term of office is abbreviated because of death, resignation or removal or who fails to timely file a declaration of candidacy as required by § 17‐4‐114(a) or § 17‐4‐115(a), unless the judge is a candidate for another office subject to evaluation under this section. (B) As soon as is reasonably practicable under the circumstances, but not less than three (3) days prior to the deadline for filing a declaration of candidacy required by § 17‐4‐114(a)(2) or § 17‐4‐115(a)(2), the judicial performance evaluation commission shall provide an incumbent appellate judge with a draft of the commission's evaluation and shall provide the judge with a reasonable opportunity to comment or respond either personally or in writing. (b) (1) The judicial performance evaluation commission shall be composed of nine (9)


members. (2) The speaker of the senate shall appoint four (4) of the members, of whom one (1) shall be a state court judge, two (2) shall be attorney members and one (1) shall be a non‐attorney. No more than two (2) of those appointed shall reside in the same grand division. (3) The speaker of the house of representatives shall appoint four (4) of the members, of whom one (1) shall be a state court judge, one (1) shall be an attorney, and two (2) shall be non‐attorney members. No more than two (2) of those appointed shall reside in the same grand division. (4) The speaker of the senate and the speaker of the house of representatives shall jointly appoint one (1) state court judge. (5) The supreme court's evaluation procedure may permit the judicial performance evaluation commission to perform an evaluation with less than the full membership in panels, but the full commission shall approve the evaluation. (6) The appointing authorities for the judicial performance evaluation commission shall make appointments that approximate the population of the state with respect to race and gender. In appointing attorneys to the commission, the speakers shall receive, but shall not be bound by, recommendations from any interested person or organization. TCA 39‐16‐402 (a) a public servant commits an offense who, with intent to obtain a benefit or to harm another, intentionally or knowingly:

(1) commits an act relating to the servant’s office or employment that constitutes an unauthorized exercise of official power;

(2) commits an act under color of office or employment that exceeds the servant’s official power;

(3) refrains from performing a duty that is imposed by law or that is clearly inherent in the nature of the public servant’s office or employment;

(4) Violates a law relating to the public servant’s office or employment; or (5) Receives any benefit not otherwise authorized by law.

(d) an offense under this section is a class E felony

IntroductIon

JudIcIal Performance evaluatIon commIssIon2014

Under Tennessee law, every appellate judge who seeks election to fill either an unexpired or full eight (8) year term of office must be evaluated by the Judicial Perfor-mance Evaluation Commission prior to a scheduled August election. The Commission is charged with the duty to evaluate these judges and to make separate rec-ommendations to retain or replace each of them. In the event that a final recommendation is made to retain an appellate judge, that judge is eligible to participate in a retention election where the voters of the State are given the option to vote to retain or replace each such appellate judge. In the event that a final recommendation is made to replace an appellate judge, then that judge is eligible to participate in a contested election where the voters of the State are given the option to vote for that judge or other statutorily qualified candidates. The purpose of the evaluation process is two-fold: (1) to assist the public in evaluating the performance of appellate court judges; and (2) to promote self-improvement among all judges.

The Judicial Performance Evaluation Commission is authorized by T.C.A. § 17-4-201 and consists of nine (9) members and includes lawyers, non-lawyers and state trial court judges. Members participating in the 2013 evaluation process include Judge Robert Jones, Chair; Michasel E. Tant, Vice Chair; Henrietta Grant; J. Gregory Grisham; Renata Soto; Judge J. Michael Sharp; Judge Robert H. Montgomery; Christopher Clem and Joseph A. Woodruff.

The Commission’s report contains the evaluation re-sults and retention recommendations for the three Su-preme Court justices, ten Court of Criminal Appeals judges, and nine Court of Appeals judges who are stand-ing for retention election in August 2014. Under the guidelines outlined in Supreme Court Rule 27, evalua-tions are based upon the following criteria:

1. Integrity2. Knowledge and Understanding of the Law3. Ability to Communicate4. Preparation and Attentiveness5. Service to the Profession6. Effectiveness in Working with Other Judges and

Court Personnel

In developing individual evaluations, the Commis-sion considered the following: confidential evaluation surverys, personal information self-reported by each judge; caseload and workload statistics for each judge; and relevant public input that was received. The Com-mission reviewed selected opinions authored by the judges being evaluated. The Commission conducted at least one formal interview with each judge to discuss ju-dicial performance issues as part of the evaluation pro-cess. In two cases, the Commission conducted a second interview with judges who requested a second interview.

Confidential survey questions were sent to (1) appel-late court judges, (2) trial court judges, (3) court person-nel and (4) attorneys who had cases before the various appellate courts. The surveys solicited an assessment of each evaluated judge’s performance based on a variety of criteria and was based on a five-point scale:

5 - Excellent4 - Above Average

3 - Average2- Below Average1- Unacceptable

Although individual survey responses remained con-fidential, the cumulative results for the appellate court judges being evaluated are as follows:

Appellate Judges Trial Judges

Court Personnel Attorneys

Clark 4.61 4.33 4.36 4.19 Clark 4.43Lee 4.65 4.41 4.50 4.67 Lee 4.52Wade 4.80 4.82 4.50 4.46 Wade 4.71



Bennett 4.93 4.24 5.00 4.31 Bennett 4.62Clement 4.71 4.32 4.80 4.35 Clement 4.55Dinkins 4.69 4.05 4.00 4.25 Dinkins 4.25Frierson 4.69 4.58 5.00 5.00 Frierson 4.82Kirby 4.63 4.31 5.00 4.27 Kirby 4.55McClarty 4.57 4.42 5.00 4.16 McClarty 4.54Stafford 4.43 4.61 5.00 4.20 Stafford 4.56Susano 4.80 4.66 5.00 4.60 Susano 4.77Swiney 4.79 4.69 5.00 4.34 Swiney 4.71



Bivins 4.80 4.75 5.00 4.32 Bivins 4.72Glenn 4.85 4.73 4.88 3.95 Glenn 4.60McMullen 4.07 4.04 4.63 3.81 McMullen 4.14Ogle 4.53 4.38 4.82 4.14 Ogle 4.47Page 4.79 4.75 5.00 4.13 Page 4.67Thomas 4.67 4.53 5.00 4.15 Thomas 4.59Wedemeyer 4.86 4.56 5.00 4.24 Wedemeyer 4.67Williams 4.40 4.52 5.00 4.01 Williams 4.48Witt 4.53 4.29 5.00 4.20 Witt 4.51Woodall 4.53 4.36 5.00 4.14 Woodall 4.51

Tennessee Supreme Court

Overall Average

Tennessee Court of Criminal Appeals

Overall Average

Overall Average

Tennessee Court of Appeals

IntroductIonPage 3


The evaluations contained herein express the Com-mission’s evaluation of each judge’s performance mea-sured against the evaluation criteria of Supreme Court Rule 27 and include the Commission’s vote and recom-mendation whether each judge should be retained or replaced.

In addition to the evaluations and recommendations of individual judges, the Commission also offers the fol-lowing recommendations for appropriate consideration to improve the evaluation process and to improve the appellate courts generally.

1. The Commission believes that the Supreme Court should consider revisions to Rule 27. Specifically, the Commission found the Rule to be contradictory in certain respects and lacking in definitive guidance on the issue of confidentiality. For example, § 5.03 of Rule 27 states, in part “The Commission’s meetings and delibera-tions shall be public.” Yet, § 6 of the Rule sets out nu-merous instances where the activities of the Commission are to be confidential. Harmonizing these two sections so that the Commission can conduct evaluations “can-didly and in strict confidence so that the areas for im-provement may be determined fairly” (§ 6.01), while at the same time opening meetings to the public (§ 5.03), should be addressed. The Commission recommends that interviews be held in public, but that preliminary deliberations and the drafting of preliminary evaluation reports, be confidential. Moreover, the Commission recommends that final evaluation reports remain con-fidential, even after they are furnished to the respective judges, until a set time in advance of the date by which a judge must formally declare his or her intention to seek retention in office.

2. The Commission believes that the data that is compiled on the work-flow of each judge be revised.

Currently, the system tracks the number of days that lapse between oral argument in a case and the date that the final opinion in a case is filed. The Commission be-lieves that a more meaningful statistic is the number of days that lapse between oral argument and the date that the judge assigned with writing responsibility for the case releases the draft opinion into circulation with the other members of the court. The Commission also believes that each appellate court should evaluate their respec-tive internal guidelines for the circulation and filing of opinions to determine whether those guidelines should be revised. Appellate judges, the clerk of the appellate courts and the Administrative Office of the Courts are encouraged to gather statistics which are more refined than those presently available to help future evaluators to better understand the differences that may exist be-tween the appellate courts with respect to workload and reasonable expectations regarding timeliness for issuing opinions.

3. The Commission is aware that from time to time a case is reassigned from one authoring judge to anoth-er after oral argument but before the case is filed. The Commission is advised that in such instances, there is no “resetting of the calendar.” In other words the judge to whom the case is newly assigned takes the case and is statistically burdened with the days that have lapsed since oral argument. The Commission believes that a more reasonable practice would be to start tracking the lapse of days after reassignment and not from oral argu-ment.

4. The Commission believes that the practice of the Court of Criminal Appeals, to rotate all members of the Court between all of the Court’s sections is a reason-able practice that promotes collegiality, enhances the professional development of all the judges and encour-

IntroductIonPage 4


ages greater review of draft opinions and collaboration in decision making. The Commission recommends that the Court of Appeals consider and evaluate the efficacy of adopting the same or a similar practice.

5. The Commission believes that the practice of both the Court of Appeals and Court of Criminal Ap-peals to assign writing responsibility in cases prior to oral argument should be reconsidered. This practice appears to be calculated to insure the even distribution of work among all of the judges on the Court so that no judge is assigned a disproportionate number of cases. This is a reasonable objective; nevertheless, it is possible that this practice has the unintended consequences of discourag-

ing in-depth review of draft opinions and diminishing collaboration in decision making. Other models exist for assignment of cases following oral argument. The Com-mission has not evaluated any other model, nor does it have any opinion whether any other model could be successfully adapted to Tennessee. The answers to those questions are the exclusive province of the appellate courts.

6. The Commission believes that the surveys used in the evaluation process should be modified so that the questions in the surveys are tailored for each group whose ratings are being sought.

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jpec information for the davidson county grand jury

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