SB 1088 *HB 1198
Ethics - As introduced, provides that if a complaint is filed against a judge who is or was a member of the court of the judiciary at the same time as the investigative counsel served as counsel for the court, the investigative counsel must retain a special counsel to investigate any such complaint. - Amends TCA Title 4, Chapter 29; Title 8; Title 16; Title 17, Chapter 5 and Title 39, Chapter 16.
Fiscal Summary
Increase State Expenditures - $26,000
Bill Summary
ON MAY 21, 2011, THE SENATE ADOPTED AMENDMENT #2 AND RESET SENATE BILL 1088, AS AMENDED.
AMENDMENT #2 rewrites the bill and revises various present law provisions regarding the court of the judiciary, such as revising the membership of the court of the judiciary.
THE COURT OF THE JUDICIARY - PRESENT LAW
Under present law, the Tennessee court of the judiciary consists of 16 members as follows:
(1) Any combination of three judges from the court of appeals and court of criminal appeals to be appointed by the supreme court of Tennessee;
(2) One trial judge from each grand division to be appointed by the supreme court of Tennessee;
(3) One practicing attorney from each grand division to be appointed by the board of governors of the Tennessee Bar Association;
(4) Three public members who are not judges, retired judges, nor licensed attorneys of the state, one to be appointed by the speaker of the senate, one to be appointed by the speaker of the house, and one to be appointed by the governor;
(5) One general sessions or juvenile court judge licensed to practice law in this state from each grand division to be appointed by the supreme court. There must always be at least one appointee who currently and regularly exercises juvenile court jurisdiction; and
(6) One municipal court judge licensed to practice law in this state to be appointed by the supreme court.
Service on this court by the three appellate judges is mandatory. No trial judge is required to serve against the trial judge's will. Each member of the court serves for a term of four years and is eligible for reappointment to one additional term. The supreme court and any other appointing authority must make its appointment with a conscious intention of selecting a body that reflects a diverse mixture with respect to race and gender.
The presiding judge of the Tennessee court of the judiciary must divide the court into a hearing panel of 12 members and an investigative panel of three members. A hearing panel rules on prehearing motions, conducts hearings on formal charges and makes findings, conclusions, and imposes sanctions or dismisses the case. An investigative panel reviews the recommendations of disciplinary counsel after preliminary investigations and either authorizes a full investigation or dismisses the complaint and reviews the recommendations of disciplinary counsel after full investigation and approves, disapproves or modifies the recommendations.
THE COURT OF THE JUDICIARY - THIS AMENDMENT
This amendment rewrites the above provisions to specify that the court of the judiciary would be reconstituted on October 1, 2011, and the terms of the present members of the court of the judiciary would terminate on such date. On such date, the court of the judiciary would be recreated and would consist of 12 members to be selected as follows:
(1) One member who is a trial court judge to be appointed by the speaker of the senate;
(2) One member who is a general sessions court judge licensed to practice law in this state, to be appointed by the speaker of the house;
(3) One member who is a municipal court judge licensed to practice law in this state to be appointed by the speaker of the senate;
(4) One member who is a juvenile court judge licensed to practice law in this state to be appointed by the speaker of the house;
(5) One member who is a retired trial court judge to be appointed by the speaker of the senate;
(6) One member who is a retired or active law enforcement officer to be appointed by the speaker of the house;
(7) Three members of the public who are not judges or attorneys, with one residing in each grand division of the state, to be appointed by the speaker of the senate; and
(8) Three members of the public who are not judges or attorneys, with one residing in each grand division of the state, to be appointed by the speaker of the house.
Each member would serve for a term of two years and would be eligible for reappointment to one additional term.
The presiding judge will divide the board into a hearing panel of five members and two investigative panels of three members. The hearing and investigative panels would have the same duties under this amendment as they have under present law, as described above.
DISCIPLINARY COUNSEL
Present law requires the disciplinary counsel to evaluate all information coming to disciplinary counsel's attention that allege judicial misconduct or incapacity. Unless the complaint alleges specific facts, not conclusions, that would cause a reasonable person to believe that there is a substantial probability that a judicial offense occurred, disciplinary counsel, subject to review by the investigative panel pursuant, must dismiss the complaint, or if appropriate, refer the matter to another agency. If the information contains specific facts that would cause a reasonable person to believe that there is a substantial probability that a judicial offense occurred, then disciplinary counsel must conduct a preliminary investigation.
This amendment rewrites the above provisions to instead require the disciplinary counsel to evaluate all information coming to the counsel's attention by complaint, upon the request of any member of the court or from any other credible source that alleges judicial misconduct or incapacity. The complaint must allege specific facts directly relating to the alleged misconduct or incapacity of the judge in question. All complaints would be reviewed by disciplinary counsel and if, in the judgment of disciplinary counsel, the complaint establishes probable cause that a judicial offense occurred, counsel, subject to review by the investigative panel pursuant, would conduct a preliminary investigation. If the disciplinary counsel believes the complaint fails to establish probable cause that that a judicial offense occurred, counsel, subject to review by the investigative panel, would dismiss the complaint, or if appropriate, refer the matter to another agency. This amendment clarifies that disciplinary counsel would not have the authority to dismiss a complaint without the review of and approval by the investigative panel.
OTHER PROVISIONS
This amendment requires the court to file, on a quarterly basis, a report with the chairman of the senate and house judiciary committees detailing the following:
(1) The number of complaints against judges filed during the previous quarter;
(2) The disposition of each complaint; and
(3) The status of any preliminary investigation, investigative panel investigation or trial authorized or ongoing by the court.
The quarterly report may not reveal the name of any judge against whom a complaint has been filed but would indicate if more than one complaint has been filed against a particular judge. However, if more than one complaint has been filed against the same judge, the chairman of either judiciary committee may contact the presiding judge of the court for the purpose of inspecting all complaints filed against such judge to determine if further action by the general assembly is warranted. If complaints are requested for inspection by either chairs of the judiciary committees, then the name of the judge and the contents of the complaint would maintain its confidential status unless such information becomes public during the course of a proceeding or investigation to impeach or remove the judge.
Under present law, the expenses incurred in the administration of present law regarding the court of the judiciary involving additional pay to retired judges, together with expenses incurred in paying witnesses per diem and travel expenses where applicable, expenses in the taking of depositions, and expenses incurred in the reporting of any proceeding under such present law are paid through the administrative office of the courts. This amendment specifies that such expenses would be paid through "the secretary of state", instead of "the administrative office of the courts".
For purposes of appointing the members of the reconstituted court of the judiciary, the bill, as amended, would take effect upon becoming a law, and for all other purposes, it would take effect on October 1, 2011.
