Analysis for July 28, 2006

Analysis: Should a Judicial Candidate Be Able to Give to Governors?

If you have already voted in the August primary elections, you may have noticed the over 25 judicial retention questions on the ballot, allowing you to select yes or no on the question of retaining justices with governing jurisdictions across the State of Tennessee. These judicial retention questions range from State Supreme Court justices to District and Appeals Court. In the history of these retention questions, only one jurist have every been removed from their position with a majority of "No" votes. That was justice Penny White, who in 1996, was the target of a strong political push by pro-death penalty advocates and the Tennessee Conservative Union, after White stayed an execution. The vote in many cases on these judicial retention questions is considered a formality.

That is why it may be surprising to some that state law requires these judicial retention candidates to file the same financial disclosures that other state office holders file, including quarterly reporting as the campaign for judicial retention progresses. Most justices simply file a blank piece of paper since no formal fundraising or disbursements are typically used in these campaigns for retention. In fact, all but one jurist on the August ballot did just that - showed no zero balance campaign account.

Court of Appeals for the Middle Division of Tennessee Frank Clement is the only retention candidate on the ballot this August to show campaign disbursement activity. Among the interesting list of disbursements are membership fees to various legal societies, a donation to the Wang Foundation for Sight Restoration - presumably a charity event as opposed to lasik surgery, a expense for dinner at the opulent Palm Restaurant, and a bizzare disbursement to the Hillwood Country Club with the note "For T. Shaw." Perhaps the most surprising thing on the disclosure, however, is a maxed out donation to the campaign of Governor Phil Bredesen, who appointed Clement to the Appeals Court bench in September of 2003.

Clement's $1,000 contribution to the Bredesen campaign stretches the limits of Code of Judicial Conduct as outlined by the Tennessee Supreme Court. Under the Code, any jurist who is not a candidate is not allowed to contribute to any political parties or candidates. While the Code provides that candidate judges, including in retention elections, can - during the course of the campaign - give campaign donations to political parties and candidates [Code 5(C)], 26 out of the 27 candidates for judicial retention chose not to transfer money between a judicial retention campaign account and another candidate for public office. In fact, 26 out of the 27 candidates chose not to raise money or cover legal fees and expenses from their campaign accounts.

For another thing, Clement's contribution to Bredesen may severely limit Clement's ability to act as an effective Court of Appeals Justice. The Governor of the State is a frequent party in litigation sure to reach the Court of Appeals - especially if we consider all the cases where the Governor is sued in his official capacity. Is Clement now sure to recuse himself from all cases in which Bredesen is a party? A sharp litigation attorney might insist on it.

A campaign contribution is what it is - a silent endorsement from a person to a candidate. However, this contribution, from a judicial campaign committee to another candidate seems to muddy the water more than a private citizen's contribution, because it directly links campaign with campaign across different branches of state government. This campaign disbursement may be even more cause for strengthening or clarifying judicial canons to indicate whether donations from judicial candidates should come from their personal accounts or campaign funds.

Posted by Adam Groves | Email This |