By Brandon Gee | The Tennessean
A new ethics code for Tennessee judges may increase the public's confidence in the judiciary, but some changes come at the expense of judges' First Amendment rights, critics warn.
The revamped Code of Judicial Conduct bars judges from making political donations and imposes tighter restrictions on when judges must step down, or recuse themselves, from cases because of conflicts of interest. These are the first major revisions adopted by the Tennessee Supreme Court in more than 20 years.
Among the sweeping changes, legal observers said recusal reform deserves the most praise.
"Tennessee, overnight, has one of the best policies in the nation," said Charles Hall of Justice at Stake, a Washington-based campaign to reduce the influence of money and politics in state and federal courts.
The new code, which takes effect in July, provides more specific guidance on when a judge should step down from a case, including when a judge has received a level of campaign support from a litigant that would cause a reasonable person to question whether the judge can be fair. Judges also will be required to step down from a case if they have previously presided over a judicial settlement conference or mediation in the same matter.
"The new recusal rules are going to give all litigants more confidence," Tennessee Chief Justice Cornelia A. Clark said.
In all situations in which a judge has been asked to step down but refused, the judge will now be required to provide a written explanation of why they denied the motion, and that decision can be immediately appealed, while the remainder of the case is put on hold, to a higher court.
"There is really a procedure in place now that increases the transparency of the entire process," said Maria da Silva of the New York-based Brennan Center for Justice.
With the adoption of the new code, Tennessee joins 14 states that have addressed recusal reform since the U.S. Supreme Court's 2009 decision in Caperton vs. Massey, in which the majority ruled that a West Virginia Supreme Court justice should have stepped down from a case involving A.T. Massey Coal Co. because he received more than $3 million in campaign support from the company's CEO.
"If people have questions about the impartiality of a judge, these rules should provide greater assurances there," Allan Ramsaur, executive director of the Tennessee Bar Association, said of the new ethics code, which was suggested by the bar association and largely based on an American Bar Association model.
While the state Supreme Court substantially adopted the bar association proposal, there was at least one notable departure: a new rule that prevents judges from making a contribution to a political organization or candidate for political office.
Any such prohibition was left out of the proposal for fear that it would be ruled unconstitutional in light of recent U.S. Supreme Court decisions. In Republican Party of Minnesota vs. White, the court ruled that a state restriction on judges and judicial candidates discussing political issues was unconstitutional on free speech grounds. And in Citizens United vs. Federal Election Commission, the court said that contributions to political candidates are a form of free speech.
"I believe that provision, along with several other provisions, may very well infringe on a judge's right to free speech," said Vanderbilt University law professor Brian Fitzpatrick, who helped write the U.S. Supreme Court's decision in the 2002 White case as a former clerk for Justice Antonin Scalia. In addition to the prohibition on campaign contributions, Fitzpatrick said he also is troubled by language that restricts judges from making statements on pending and impending cases. "The writing was on the wall, I think, in that opinion, that this type of language is unconstitutional."
Davidson County Circuit Judge Amanda McClendon said she would like to be able to give money to candidates if she wishes, and said she doesn't understand why the state Supreme Court makes an exception in the ethics code that allows judges to purchase tickets to political fundraisers and dinners.
"That surprised me," McClendon said. "I read that to mean the only way I could contribute to a candidate is if they invite me to dinner. That means my presence at an event. I don't understand how that's better."
Chief Justice Clark conceded that prohibitions on political activity lie in a "gray area."
"Our court, after carefully looking at that, has decided to go in a more conservative direction because we believe that more likely avoids a situation where judges could be perceived of improperly lending the prestige of their office to others," she said. "If they ultimately strike down language like ours, we will remove it, but it hasn't been resolved."
Clark said some state lawmakers already have told her they appreciate the Supreme Court's adoption of a new ethics code.
The Republican-led Tennessee General Assembly is poised to consider several proposed judicial system reforms -- which critics say are better characterized as attacks.
Clark said she hopes "reasonable people" will recognize that the court has taken a meaningful step to address criticisms that the state judiciary has failed at policing itself. A bill that would overhaul the body that investigates ethical complaints against judges and determines discipline is scheduled to be voted on by the full Senate in February.
Some judges and prosecutors had expressed worries that the new recusal rules would make it too easy for litigants, particularly criminal defendants, to slow down proceedings, try to get a judge kicked off a case or both.
Clark said the new code still gives judges the flexibility to deny improper recusal motions. She also said judges shouldn't use the new rules to try to avoid difficult cases or unpopular decisions.
"A judge first has an obligation to decide all the cases that come before him or her," Clark said. "If a judge recused themselves every time they were asked, they wouldn't be doing the job they were elected or appointed to do."
Contact Brandon Gee at 615-726-5982 or firstname.lastname@example.org. Follow him on Twitter at @bsgee.