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Selection and Retention Process for Tennessee Appellate Court Judges Challenged

Selection and Retention Process for Tennessee Appellate Court Judges Challenged

by Christopher McWhorter

In the State of Tennessee, judges are elected. Before incumbent appellate court judges are placed on the ballot, however, they must be evaluated by the Judicial Performance Evaluation Committee (JPEC), which recommends whether they should be retained or replaced. “Retain” results in a retention election and a yes or no vote for the candidate, while “replace” means the candidate participates in a contested popular election. This process is part of the state’s judicial selection and retention system known as the “Tennessee Plan.”

State law requires the JPEC to be comprised of a cross-section of the population. The committee is composed of nine people – three judges, three attorneys and three non-attorneys – from different regions of the state. The JPEC members are also required to “approximate the population of the state with respect to race and gender,” pursuant to T.C.A. § 17-4-201(b)(6).

According to a 2010 census, Tennessee’s population is 52% female and 22.4% non-white; however, the JPEC includes only two women and one non-white member.

Well-known and relentless Nashville attorney John Jay Hooker, who has filed numerous challenges to the Tennessee Plan, sued Lt. Governor Ron Ramsey, House Speaker Beth Harwell and members of the JPEC in 2013 over the apparent statutory violations related to the JPEC’s membership.

Hooker alleged that the composition of the JPEC violated state law because it was not representative of the female and minority population of the state. On January 15, 2014, Davidson County Circuit Court Judge Hamilton Gayden agreed.

“This Court concludes that the composition of the current Judicial Performance 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,” he ruled.

Regardless, just two days after Judge Gayden’s decision, the JPEC met to conduct business as usual. Ultimately, the commission issued recommendations to retain all 22 incumbent appellate court judges whose terms were ending, who were subsequently placed on the August 7, 2014 ballot.

The state appealed Judge Gayden’s ruling and Hooker requested that the entire Tennessee Supreme Court recuse itself due to a conflict of interest, as Supreme Court justices are subject to the Tennessee Plan and the JPEC’s retention recommendations. All but one justice agreed; Justice Janice Holder declined to recuse herself because she will be retiring. In June 2014, Governor Bill Haslam appointed a special Supreme Court panel to hear Hooker’s appeal, and a decision in that case remains pending.

In a separate lawsuit filed by Hooker challenging the Tennessee Plan, including the way appellate court judges are initially selected by a nominating committee, a special Supreme Court panel ruled in March 2014 that the “retention election portion of the Tennessee Plan satisfies the constitutional requirement that the judges of the appellate courts be elected by the qualified voters of the State and does not violate the Tennessee Constitution.” See: Hooker v. Haslam, 2014 Tenn. LEXIS 195 (Tenn. Mar. 17, 2014).

The legislature decided in April 2014 to hold a joint Judiciary Committee hearing on whether the JPEC was in violation of the state constitution by failing to meet diversity requirements, as argued by Hooker. According to the Tennessean, state Rep. Judd Matheny “warned that if the commission was found to be unlawfully seated, then the judicial appointments it made and the rulings of those judges could be called into question as ‘fruits of the poisonous tree.’”

Then again, as the special Supreme Court panel noted in Hooker v. Haslam, even if the state’s judicial selection process was invalidated, that would not automatically invalidate the acts of the judges who were improperly elected to office.

Meanwhile, the JPEC is no longer in existence as its statutory authority expired on June 30, 2014. A ballot measure to amend Tennessee’s constitution to modify the state’s selection and retention process for appellate court judges is on the November 2014 ballot. The measure retains much of the prior existing system, but would include increased participation – and influence – by the state legislature.

Sources: Tennessean,,,


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Related legal case

Hooker v. Haslam