Have two state appellate judges from Memphis, both women, fallen victim to politics? That's a question that may not be fully answered until later this year or next, if ever. The two judges are Camille McMullen, a member of the Tennessee Court of Criminal Appeals, and state Supreme Court justice Janice Holder.
McMullen is one of three state appellate judges (out of 24 evaluated) whose retention was recently advised against by the nine-member state Judicial Performance Evaluation Commission. Holder, a former chief justice of the state high court, had earlier decided against seeking reelection in next year's retention elections, in which the state's appellate judges are subject to yes or no votes by the state's electorate.
In Holder's case, there has been speculation that her past opinions may have run against prevailing political opinion in state government. The venerable Tennessee Journal, a Nashville-based newsletter on government and politics, put it this way in its most recent issue:
"Holder may have faced an organized campaign to defeat her. She is the last remaining member of the 2000 Supreme Court that in Planned Parenthood v. Sundquist struck down several abortion restrictions and subjected any restriction to a 'strict scrutiny' analysis, a more rigorous test than the 'undue burden' analysis used by the U.S. Supreme Court. She voted with the majority in the 4-1 decision."
Coincidentally, a proposed constitutional amendment on the state ballot next year calls for the scaling back of state judicial protection for abortion rights to a level no greater than what federal courts provide. McMullen, who was appointed to the Court of Criminal Appeals in 2008 by former Governor Phil Bredesen, a Democrat, had served as both a state and a federal prosecutor and had the blessing of then District Attorney General Bill Gibbons.
Gibbons, who now serves as state Commissioner of Safety and Homeland Security, said at the time of McMullen's appointment that she had been "a rising star" in his office and was quoted by The Commercial Appeal as saying, "She has the temperament, the intelligence, the work ethic, and the fairness."
But McMullen apparently had rough sailing in her interview this fall with the state evaluation commission, in which, said the Journal, she "was perceived as displeased with having to go through the process." McMullen was also said to have been criticized for the slow pace of her opinions.
No detailed report of the commission's findings will be made public until after a follow-up meeting on December 6th, when commission members will prepare a draft of their findings. After release of the draft, McMullen and two other appellate court judges who received thumbs down from the commission — Court of Criminal Appeals judge Jerry Smith and Court of Appeals judge Andy Bennett, both of Nashville — will have an opportunity to respond. The retention election itself will be held on August 7th of next year. Meanwhile, McMullen has received the public backing of Chief Justice Gary Wade, who, in an interview with the Knoxville News Sentinel last week, praised McMullen, one of three African-American appellate judges, as "very well qualified."
An implicit opinion to the contrary came from Lieutenant Governor Ron Ramsey, who pronounced himself pleased with the commission's action and opined that the three judges adversely cited apparently "weren't doing their jobs."
Ramsey, the Republican state senator from Blountville who presides over the state Senate, has major impact on the process. Under a state law passed in 2009, he has a direct say in the appointment of five of the nine members of the Judicial Performance Evaluation Commission.
Until 2009, the retention evaluation process was the work of a Judicial Evaluation Commission that was appointed in large part by a now defunct Judicial Council, which included sitting judges. Legislation that year, the first in which both the state House and state Senate had Republican majorities, altered the process, which now calls for the Evaluating Commission's nine members to be appointed exclusively by the speakers of the two chambers. Senate speaker Ramsey has four appointees, and House speaker Beth Harwell of Nashville has four, with one to be a joint appointee by the two speakers.
Those who opposed the change expressed concerns about what they saw as the politicizing of the judiciary. Those who favored it see it as a means of making appellate judges, who gain office through appointment, more responsive to the will of the people. They note that in 2014 all the state's trial judges, subject to direct election every eight years, will be on the ballot in their jurisdictions.
Yet another official advisory body, the newly constituted Governor's Commission for Judicial Appointments, sent Haslam three nominees to replace Holder. They are Court of Criminal Court Appeals judge Holly Kirby of Memphis, Shelby County Criminal Court judge Christopher Craft, and Memphis attorney Brook Lathram.
Two other Memphians were among the three jurists nominated by the governor's commission to succeed Court of Appeals judge David Farmer of Jackson. The Court of Appeals nominees are Shelby County chancellor Kenny Armstrong, Memphis attorney Dorothy Pounders, and Jackson attorney Brandon Gibson.
Is School Litigation Coming to an End?
The dominoes have started falling: That was the message that seemed to emerge from Monday's meeting of the Shelby County Commission. At the heel of the meeting (procedural jargon for holding this or that piece of business until the very end), the commission adjourned for an executive session with attorney Lori Patterson.
When it ended, enough was revealed by Chairman James Harvey and other members to indicate that two of the six suburban municipalities that have been on the other end of litigation brought by the commission — Arlington and Lakeland — were ready to reach agreement with the commission on terms that will be brought before the unified Shelby County Schools board at its scheduled Tuesday night work session.
Though the chapter and verse of the agreement were to be withheld until Tuesday's school board meeting, enough was learned, from several sources familiar with negotiations, to indicate that the two municipalities would accept financial terms considerably higher than token ones in order to take possession of school buildings within the jurisdictions of their soon-to-be school districts.
Indications are that Millington officials would soon be accepting similar propositions — probably this week — and that Bartlett and Collierville would not be far behind (although some wrinkles still need to be ironed out in all these cases).
The template for an agreement is not identical to that proposed two weeks ago by Superintendent Dorsey Hopson of the unified SCS district, but the board is expected to find it amenable. The chief surprise in the arrangements agreed to by attorneys for Arlington and Lakeland, subject to approval by the municipalities' governing bodies and by their newly elected school boards, is that the municipalities would purchase the school buildings outright rather than engaging in 40-year leases, as Hopson had proposed.
The sale price, said to be $4 million in the case of Arlington, would be predicated on the basis of number of facilities and amount of square footage involved for all municipalities.
Should such agreements indeed be concluded with five of the municipalities, only Germantown would find itself still in litigation. The city's officials remain aggrieved by attendance zones proposed by Hopson for the unified county system that includes three Germantown schools — Germantown High School, Germantown Middle School, and Germantown Elementary.
Although county commissioner Chris Thomas said Monday he would defer presenting a motion for full and complete discontinuation of the commission's lawsuit, pending events of the next two weeks, members of the commission majority that has supported the litigation indicate they are not prepared to give it up so long as Germantown holds out.
The commission will hold a special meeting Thursday to consider further action if copies of the suggested agreement are in its possession as of noon Tuesday. (That was a condition insisted on by Commissioner Heidi Shafer.) Friday was set aside as a contingency date in case there was a delay in disseminating copies of the proposed agreement.