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PLN associate editor quoted in article re judicial discipline

Tennessean, Jan. 1, 2011. http://www.tennessean.com/article/20110922/NEWS...
PLN associate editor quoted in article re judicial discipline - Tennessean 2011

TN legislators push to overhaul board that disciplines judges

3:44 AM, Sep. 22, 2011

At the conclusion of a two-day review of the state’s judicial discipline system Wednesday, lawmakers said they are satisfied that they have plenty of evidence to justify an overhaul.

While some of the proposed changes to the Court of the Judiciary — the body that investigates ethical complaints against judges and decides whether to punish them — would bring the commission more in line with its counterparts in other states, other changes would be unusual. In any event, members of a special legislative committee, the second one in as many years to review the Court of the Judiciary, said testimony from several disgruntled litigants suggests change is needed.

"Hopefully, we can make our members understand from these hearings … that it’s serious, and not just to take the word of their hometown judges that there is no problem when there is a problem," said state Sen. Mae Beavers, R-Mt. Juliet, who was angered earlier this year when state judges spoke to lawmakers and helped kill her proposal to drastically alter the Court of the Judiciary’s structure at the end of the legislative session.

Beavers and her allies hope to resurrect the proposal, or one like it, when the legislature reconvenes in January, but no specific time frame was provided. The Court of the Judiciary is made up of 16 members, including 10 judges appointed by the state Supreme Court. Beavers’ proposal would reduce the commission’s size to 12 members appointed by the speakers of the state House and Senate, and only five would be judges.

Sen. Mike Bell, R-Riceville, said allowing the Supreme Court to appoint judges to "judge judges" is a conflict of interest and that the court’s appointing power needs to be stripped.

"That’s what I want to see more than anything," Bell said.

While he is open to changing the way Court of the Judiciary members are appointed, Court of Criminal Appeals Judge Jeff Bivins said it would be a mistake for judges to constitute only a minority of the membership.

Bivins is the chairman of a Tennessee Judicial Conference Committee tasked with working with legislators looking to reform the Court of the Judiciary. Noting that the Court of the Judiciary conducts hearings and deals with complex legal issues, Bivins warned that due process mistakes could be made and disciplinary decisions could be overturned on appeal without the expertise of judges. Tennessee is one of only 10 states, however, that let a body made up mostly of judges decide if and how to discipline judges, according to the American Judicature Society.

Disciplinary boards for other professions in Tennessee, such as the Board of Nursing or the Board of Professional Responsibility — the panel that disciplines lawyers — are almost entirely made up of members of their respective professions.

Stripping the Supreme Court of appointing power would be unusual when compared with the Court of the Judiciary’s counterparts in other states, according to the American Judicature Society. Only 10 states don’t give their Supreme Court, or its chief justice, the power to sit on or appoint at least some of their judicial discipline commissions’ members.

Secrecy criticized

The Court of the Judiciary’s practice of sometimes disciplining judges privately rather than publicly also has been called into question.

Testifying before the committee Wednesday, Alex Friedmann cited the 2005 case of Wilson County General Sessions Judge Barry Tatum, who told an 18-year-old Mexican woman in his court to learn English and consider using birth control. Friedmann produced a confidential letter he received in response to a complaint he filed with the Court of the Judiciary that stated "appropriate disciplinary action had been taken" but that state law did not require the punishment to be specified.

"I submit to you that there is a significant problem when judges, who are elected members of the public and who hold public office, can receive private disciplinary sanctions when they are found guilty of wrongdoing," said Friedmann, an ex-convict turned inmates’ rights advocate.

Private discipline is common in other states, however. Forty-three allow for "private or informal" dispositions, according to an American Judicature Society report. Information on dispositions was not available from the other states. Chris Craft, a Memphis criminal court judge and presiding judge of the Court of the Judiciary, said even people who commit serious felonies sometimes have the option to enter diversion programs and keep their records clean.

"We give them a chance," Craft said. "We don’t just want to dismiss it and make the judge think it’s OK," but "we think justice tempered with mercy is better than just harsh justice."