NASHVILLE – The Tennessee Republican Party’s approval earlier this year of a plan to require candidates for elected federal, state and county positions pay a fee to run in a GOP primary generates a ethical and political heartburn cases for state judges and judicial candidates.
Legal angst stems from a Sept. 7 opinion from the state’s judicial ethics committee on the matter.
The panel said in an advisory opinion that Tennessee’s rules of the Judicial Code of Conduct prohibit the practice of paying fees, adopted in January by the state’s GOP executive committee.
The tax was imposed with a sliding scale of fees with amounts determined by the office sought.
For example, candidates running in a Republican primary for a statewide position – governor and the United States Senate – must now pay $ 5,000 to run. Candidates for judicial office must pay $ 500 to attend the primary.
The change took place for multiple purposes, one being to bring new money into the state’s GOP coffers.
Read the bill proposed by Senator Todd Gardenhire
By tradition in Tennessee, the only conditions to be eligible were to obtain 25 signatures of qualified voters, to be of the age to vote and to reside in the district or the county in which he was seeking municipal, county or county office. legislative.
The Judicial Ethics Committee was asked whether state ethics rules allow a judge or presidential candidate to pay what amounts to a “membership fee” paid to a political organization for the purpose of compensating. the costs of the organization related to its approval by the judge. or candidate for the bench.
âNo,â the seven-judge ethics committee wrote in its seven-page opinion. “[Rule of Judicial Conduct] 4.1 (A) (4) generally prohibits a judge or judicial candidate from paying a membership fee to a political organization, and JCRs [rules] 4.2 and 4.3 do not contain any exceptions for judges or judicial candidates. “
The same applies to whether a judge or judicial candidate can pay what amounts to an assessment to a political organization in order to join the organization’s voting efforts, or to be included on the ballot with of non-judicial candidates, the panel said.
Concerns about the actions of the Republican state executive committee were raised in a September 17 letter to State Senator Todd Gardenhire, R-Chattanooga. It was written by Hamilton County Chancellor Jeffrey M. Atherton on behalf of himself and other local judges in the state’s 11th Judicial District, which is made up entirely of Hamilton County.
All Hamilton County state court judges are Republicans, Atherton noted, including himself.
“We are concerned about the ‘assessment’ requested by the Republican Party of the state,” Atherton said in the letter. âIn the light of the advisory opinion of the Judicial Ethics Committee 21-02, we are placed in a real catch-22 situation. If we pay for the evaluation, we are committing an ethical violation.
“I’m sure you can see why that would be repugnant to us as judges,” Atherton continued. “If we do not pay for the evaluation, we may be forced to present ourselves as ‘independent’, which will have a significant and negative impact on the likelihood of re-election.”
The opinion was based on a series of questions regarding the “interaction” between two rules of the Code of Judicial Conduct under Rule 10 of the Tennessee Supreme Court, Canon 4.
The canon states this as a general principle: âA judge or a candidate for judicial office must not engage in any political or electoral activity which is incompatible with the independence, integrity or impartiality of the judiciary.
Judges and Chancellors, Atherton wrote, rule on each case “legally and fairly on the basis of applicable law and the facts presented, regardless of political affiliation. However, we have the right to be affiliated with one. political party if we choose, so long does not interfere with the administration of justice.
“That being said, it certainly cannot be the intention of the Republican Party to ‘cripple’ the Republican judicial candidates,” Atherton wrote. “If the assessment continues to apply to us, that is exactly the effect.”
(READ MORE: Tennessee Governor Signs Chancellery Court Reshuffle; Opponents Question Its Constitutionality)
Democratic candidates will have their party designation next to their name since the Tennessee Democratic Party does not have the assessment, Atherton said. Everyone, including Republicans, would be listed as independent, he added.
“If the legislature decides that the judicial elections are to be non-partisan, we will abide by them, of course,” Atherton wrote in the letter to Gardenhire. “However, the legislature did not choose to do so for this district. This assessment, applied to candidates for office, is it really what the Republican Party sees as a mechanism for maintaining a judiciary with moral values and conservative ethics? “
He called the situation “untenable”.
Atherton said in a telephone interview with The Times Free Press on Wednesday: âI stand by what I said – wait a minute, we’re at an impasse. “
Gardenhire said in a telephone interview on Wednesday that he was preparing a bill he intended to introduce in January to address the issues.
âI’ve been a fan of open primaries since the early 1970s,â Gardenhire said. “When you start charging candidates for office to run for a political party, you automatically limit who can be a candidate.”
The GOP fees may discourage lawyers from running who might be good candidates, he said.
“And only well-funded, well-heeled people who are lawyers could run for judicial office,” Gardenhire said. “I think the state Republican Party erred in trying to raise money to finance its operations by placing an unreasonable burden on judicial candidates.”
Gardenhire drafted a one-page bill to address the issue in state law.
One section states that the elections of chancellors, circuit court judges, criminal court judges and judges of other archival courts “must be non-partisan”.
The second section goes to another section of state law to say this: “[A] political party will not require that a person pay a fee to run as a candidate for that political party.
Tennessee Republican Party Chairman Scott Golden said in a text in response to questions from The Times Free Press that the state’s GOP was “aware of the opinion” of the ethics committee.
“We have had several lawyers who have looked at the language of opinion over the past few weeks with the anticipation that a decision will need to be made before December 20, when [qualifying petitions to run] will be available.”
The state executive committee will meet on December 4.
“[And] this issue will be one of the main topics of the meeting, âGolden said.
âWe appreciate everyone’s patience as we plan to field the most Republican nominees in Tennessee history. [Next year] will include elections for all court offices, all county offices, many school board offices, as well as state and federal offices after the redistribution process is concluded. “
Partisan school board races are a new development in Tennessee and were approved by the Republican-led legislature in its recent special session to push back requirements for COVID-19 masks and vaccines.
Contact Andy Sher at [email protected] or 615-255-0550. Follow him on Twitter @ AndySher1.