Donald Paine Shares His Favorite Judicial Impeachment

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About the writer:  Donald F. Paine graduated from The University of Tennessee in 1963 (B.A.,M.A.,LL.B.). Thereafter he served three years in the Army. He was the original author of Tennessee Law of Evidence, and he writes a monthly column for the Tennessee Bar Journal. Mr. Paine lectures for the Tennessee Law Institute, BAR/BRI Bar Review, The Tennessee Judicial Conference, and The University of Tennessee College of Law. He is Reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure. In 1983 he was President of the Knoxville Bar Association and in 1986-87 President of the Tennessee Bar Association. Mr. Paine was elected to membership in the American Law Institute and the American College of Trial Lawyers.

PAINE ON PROCEDURE

Impeachment of Judges in Tennessee

By Donald F. Paine

The first judge impeached (twice) but not convicted was David Campbell. He served on the Superior Court, predecessor of our Supreme Court. He had been chief justice of the State of Franklin.

Judge Campbell got crosswise with John Sevier and William Blount, his former friends and allies, concerning a ruling in a damage suit brought by Blount. In 1798 he was impeached by the House. Blount presided as Senate Speaker — at a time when he was under indictment in Congress. Campbell was acquitted. He was impeached and tried and acquitted again in 1803 on a bribery charge.

The first magistrate convicted and removed from office was Judge William Cocke. He was close to Governor Sevier and Judge Campbell. Cocke presided over the First Circuit.

A federal marshal threw him in jail for failing to ante up on a guaranty. One of his impeachable sins was not showing up to preside as judge. Obviously he couldn’t, and the Senate cut him some slack on that article. But they ousted him in 1812 anyway for blatant partiality to a litigant.

My favorite judicial impeachment is that of Nathaniel Williams, the “sleeper,” in 1829. One article alleged that “while an attorney was arguing before him, Judge Williams carelessly, negligently, and unlawfully slept for an hour, and upon waking from his sleep, inquired what suit it was — and being told by said attorney, said he was related to some of the parties and could not sit in that cause.”

This article was dropped, but there were others. On two the vote was 12 to 5 for conviction. Twenty senators were members, but only 17 were present. Must the two-thirds constitutional majority take into account all elected senators, or only those voting? The Senate went with the former proposition,¹ so Judge Williams escaped removal by one vote.

The last impeachment trial in Tennessee was held in 1958. Judge Raulston Schoolfield sat as a criminal court judge in Hamilton County for 10 years. He was impeached on 24 articles and convicted on three: accepting a Pontiac as a bribe, unseemly political activities, and injudicious conduct in and out of the courtroom.

Although stripped of his judgeship, Schoolfield was not disqualified by the senate from holding office in the future. A disbarment proceeding took his law license, but in olden days a general sessions judge didn’t need licensure. Consequently, Schoolfield could be — and was — elected sessions judge in Chattanooga.

Impeachment of judges is a thing of the past in Tennessee. Nowadays the legislature uses Article VII, Section 6, permitting removal for cause by a two-thirds vote in each house. That’s how we got rid of Judge David Lanier.

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1. The decision is odd in light of Article V, Section 2: “No person shall be convicted without the concurrence of two-thirds of the senators sworn to try the officer impeached.” The U.S. Constitution at Article I, Section 3, refers to two-thirds of the “members present.”