Judicial Ethics

It’s hard to keep up with all the bad new laws Tennessee is cooking up.

As the title indicates, Tennessee – like almost all states under a Republican stranglehold – is currently experiencing a wave of legislative efforts to roll back progress on civil rights while also trying to make it difficult to vote them out of office by … making it more difficult for minorities to vote and have voting power. The latest you’ve probably heard about is one of our state senators seeming to praise Hitler. Yes, that guy. But in context it is both worse than that and not as bad as you are hearing. What he’s trying to do is express his support for a nasty bill to criminalize being homeless in Tennessee. His “praise” of Hitler for using his time as a homeless individual to practice his oratory skills and go on to lead a life that put him in the history books is apparently intended to be an argument for jailing the homeless to prevent the next Hitler. It is exhausting and depressing, but I’ve tried to keep up to date about how all of the constant right-wing wish list is going down, at least here in my state.

But a very recent judicial ethics opinion that just came out, and that tries to put a genie slightly back into a bottle, has alerted me to a different kind of bad law that has been enacted in Tennessee. Tennessee is a state with judicial elections for all of our state trial court level positions and we have retention (yes/no) elections for our appellate court positions.

Particularly for lawyers, judicial elections are … I think the technical word is “icky.” Particularly when it comes to fundraising issues. Up until this year, Tennessee has threaded the needle of the notion that if you are going to have judicial elections, judges and judicial candidates are going to need to raise money for campaigns, and the primary people they are going to hit up are lawyers who practice before them by allowing judges to form campaign committees and allowing those campaign committees to solicit contributions but prohibiting judges from being personally involved in any of that through a judicial ethics rule. As I also wrote about a long time ago now, rules restricting judges from personally soliciting contributions is something that the U.S. Supreme Court has actually affirmed as entirely constitutional.

Well, thanks to the passage of SB 2010/HB 1708 judges and judicial candidates in Tennessee are now allowed to personally solicit money for their campaigns. Tennessee’s first judicial ethics opinion of the year, 2022-1, confirms that the impact of this new law is to override the only direct prohibition in the judicial ethics rules against this conduct. That analysis is not rocket science in any fashion as the judicial ethics rule prohibiting such conduct begins with an opening clause stating “Except as permitted by law….” The opinion also tries to warn and discourage judges and judicial candidates from doing what they are now authorized to do, but it does so only in a breezy, perfunctory fashion. In fairness, it isn’t clear whether spilling any more ink attempting to spin out scenarios where judges importuning lawyers directly to fill their campaign coffers could lead to increased motions for recusal and increased risks of engaging in improper conduct impacting other cases would make the difference in terms of what happens next in terms of which judges and judicial candidates continue to try to insulate themselves from the fundraising process and which do not, but it would have been nice to see something a little more in-depth.

And, speaking of a bit more in-depth, it is also deeply curious to see that the opinion acknowledges that one of the judges concurring in the opinion only concurred in part but does not elaborate on what parts are being disagreed with. The fact that the judge in question is one of the judges in Shelby County (where Memphis is located) who has decided they are not running for re-election adds to the intrigue a bit.