Bench Presses

By Mark Pickerell

In 1994, the Tennessee Legislature passed the “Tennessee Plan” for the selection of state Supreme Court justices. The Tennessee Plan eliminated direct election of members of the Supreme Court by voters. Instead, it created an elaborate process of appointments and evaluations, followed by statewide yes/no retention elections. A primary goal of the Tennessee Plans, as stated in its preamble, was “to insulate the judges of the courts from political influence and pressure” and “to make the courts ‘nonpolitical.’ ” The Tennessee Plan to date, however, has been anything but “nonpolitical.”

On Aug. 1, 1996, Justice Penny White, the first state Supreme Court justice to face a retention election under the Tennessee Plan, was defeated after a heated, partisan controversy over one of her death-penalty decisions (State of Tennessee v. Richard Odom). It was only the first brushfire to erupt under the Tennessee Plan. Rather than being simply a debate over one death-penalty case, the Penny White incident emerged as the latest chapter in a decades-old debate over how to select Supreme Court justices in Tennessee. It just so happens that at the present moment, the Supreme Court saga is reaching a climax.

Next year, the terms of all five members of the Supreme Court expire. Soon, those five seats will be filled either by incumbent justices or their challengers. The way in which those five seats are filled will determine whether the Tennessee Plan has a chance of producing, as it intends, a nonpolitical Supreme Court. With statewide politics seemingly at a low ebb—Sundquist will likely cruise back into office with only nominal opposition, and no other statewide elections are on the ballot—the Supreme Court races may be the biggest game in town.

From 1853 to 1971, Tennessee’s Supreme Court justices were selected by direct popular election. During that time, the Democratic Party monopolized elections to all statewide offices, including elections to the Supreme Court. In 1971 the Tennessee Legislature passed, with bipartisan support, a “modified Missouri plan” for the selection of Supreme Court justices. Under this method, an independent commission submitted a list of candidates to the governor. The governor then selected one judge from the list.

Shortly after it was passed, the “modified Missouri plan” became mired in partisan politics. In 1972 Republicans swept the state. They gained control of the governor’s office, both United States Senate seats, and a majority of the Tennessee congressional districts. In Nashville Winfield Dunn, the Republican governor, clashed with the Democrat-led Legislature over numerous legislative issues.

In 1974 it became apparent, due to imminent retirements, that Dunn would be able to appoint a majority of the Supreme Court. Lt. Gov. John Wilder, who was then—and still is—speaker of the state Senate, held the highest elected office of any Democrat in the state. He led the fight to repeal the modified Missouri plan. Over Dunn’s veto, the Legislature reinstituted direct election of Supreme Court justices in the 1974 legislative session. The Democrats had won back control of the highest judiciary in the state.

Between 1974 and 1994, election of the Supreme Court followed the pattern that had existed since the Civil War. The Democratic Party, through its Executive Committee, nominated a slate of Supreme Court justices for election. The voters elected the Democratic slate to office. The only significant contested elections occurred in 1974 and 1982. In both cases, the Democratic slate handily defeated a slate of Republican challengers.

Democrats have dominated Supreme Court elections since 1974. Nevertheless, the Democrat-led Tennessee Legislature in 1994 adopted the “Tennessee Plan” for appointment of Supreme Court justices.

The Tennessee Plan is similar to the modified Missouri plan. It mandates that, when a vacancy occurs, an independent commission select a list of candidates from which the governor appoints a Supreme Court justice. But the Tennessee Plan has one significant difference from the modified Missouri Plan: The Tennessee Plan mandates the creation of a Judicial Evaluation Commission to evaluate sitting judges prior to the expiration of their terms. If the Judicial Evaluation Commission approves of a judge’s performance, the judge faces re-election on a yes/no retention election. If the Judicial Evaluation Commission does not approve of a judge’s performance, then the judge must face an open contest for his or her position.

In the fall of 1994, as in 1972, Republican candidates dominated statewide elections, winning the governor’s office, both U.S. Senate seats, and a majority of Tennessee’s congressional seats. At first blush, the political situation in 1994 appears to have been similar to the political situation in 1971. In each of those years, Democrat-led Legislatures adopted an appointment system for Supreme Court justices, just before Republicans dominated the elections for statewide offices. The political dynamics, however, had changed between 1971 and 1994. Democratic politicians realized in 1994, as they had not in 1971, that an appointment system for Supreme Court justices increased the likelihood of selecting Republican Supreme Court justices. The election of Republicans Winfield Dunn and Lamar Alexander to the governor’s office, during a period in which no Republican candidates could get elected to the Supreme Court, showed that an appointment system made the selection of Republican Supreme Court justices more likely than in a direct election. For that reason, Democratic Party officials in 1994 switched their stance from 1971 and supported direct election of Supreme Court justices as a way to retain Democratic control of the Supreme Court.

Despite opposition from Democratic Party officials, two Democrats holding a pair of the state’s highest-ranking offices, Supreme Court Justice Lyle Reid and Lt. Gov. Wilder (the same speaker of the Senate who, in 1974, led the fight against the modified Missouri plan), worked to win passage of the Tennessee Plan.

They specifically wanted to eliminate partisan political influence from the process. According to Reid, “There is no conceivable way that the Tennessee Plan would help the Democratic Party.” Yet, he explains, “The reason that someone like myself, an active Democrat all my life, would support the Tennessee Plan is that, although the Democratic Party has always chosen the eventual winners, no political party should have that power.” Looking at the partisan battles for control of Supreme Courts in other states, such as Alabama and Texas, Reid concluded, “That is simply the worst way.”

According to Wilder, it took him “eight or 10 years to see the light” after the 1974 repeal of the modified Missouri Plan. In the end, though, he concluded that, when it comes to judges, “Selection is better than election. Partisan politics was not the way to select a judge.”

Wilder, a practicing attorney, came to believe that a good judge needed “integrity, [a sense of obligation], and trust” more than just knowledge of “statutory law and court decisions.” He says he believes that the appointment of judges, followed by a retention election, was more likely to get judges with these qualities than direct elections would. As for direct elections, he says, “If you have charm and charisma and you hire the right PR firm, you can get folks to vote for anything.”

Along with Reid, Wilder organized the legislative coalition that supported passage of the Tennessee Plan. Wilder pieced together legislation that was acceptable to plaintiffs’ lawyers, defense lawyers, prosecutors, labor, business, women’s groups, and minority groups. The Judicial Selection Commission and the Judicial Evaluation Commission were intentionally created to reflect the competing interest groups needed to pass an appointment method of selection. In other words, Wilder and the others had to cover their bases to get the measure passed.

Under the plan, the Judicial Selection Commission and the Judicial Evaluation Commission must be composed of lawyers selected by the speakers of both the state House and Senate from lists submitted by the Tennessee Bar Association, the Tennessee Trial Lawyers Association, district attorneys, and the Tennessee Association of Criminal Defense Lawyers. In addition, the two speakers must select non-lawyers (typically representatives of banking, insurance, agriculture, or other industries) for the two commissions. Furthermore, the Tennessee Plan requires that “each group and each speaker in making lists of nominees and appointments respectively shall do so with a conscious intention of selecting a body which reflects a diverse mixture with respect to race, including the dominant ethnic minority population [i.e., African-Americans], and gender.”

Penny White, a Johnson City lawyer, was the first Supreme Court justice selected under the Tennessee Plan. Selected by Democratic Gov. Ned McWherter from a list of three candidates submitted by the Judicial Selection Committee, White took her seat in December 1994. She was slated to face a yes/no retention election in August 1996. As it turned out, her retention election was decided by her record in death-penalty cases.

From 1992 to 1994, White was a judge on the Court of Criminal Appeals in East Tennessee. During that time, she heard only one case involving the death penalty. In that case, State of Tennessee v. Henry Eugene Hodges, White and the other judges on the Court of Criminal Appeals affirmed the murder conviction and death sentence of the defendant. After she was elevated to the Supreme Court, Justice White likewise heard only one case involving the death penalty. That case was State v. Odom.

In 1991, after escaping from prison in Mississippi, Richard Odom stabbed, raped, and murdered Mina Ethel Johnson of Memphis. A Shelby County jury convicted Odom of first-degree murder. Following a sentencing hearing, the jury sentenced him to death based on three “aggravating circumstances”:

♦ Odom had a prior record of felonies (he had been convicted of murder in Mississippi);

♦ The murder of Mina Johnson was “especially heinous, atrocious, or cruel”;

♦ The murder of Mina Johnson was committed during the defendant’s escape from custody.

On appeal, the Court of Criminal Appeals unanimously upheld Odom’s conviction but found errors in the sentencing hearing that required a reversal of Odom’s death sentence. Odom appealed the decision of the Court of Criminal Appeals to the Tennessee Supreme Court, and, on June 3, 1996, the Supreme Court unanimously affirmed the decision of the Court of Criminal Appeals. All five justices of the Supreme Court agreed with the Court of Criminal Appeals that Odom’s conviction should stand and that his sentencing hearing was constitutionally flawed.

The Supreme Court was divided, 3 to 2, regarding the second aggravating circumstance: whether the murder was “especially heinous, atrocious, or cruel.” Based on their reading of Tennessee’s death penalty statute and federal constitutional law, Justices A.A. Birch, Lyle Reid, and Penny White decided that Odom’s acts were not “especially heinous, atrocious, or cruel.”

The Supreme Court’s Odom decision, including its interpretation of the “especially heinous, atrocious, or cruel” circumstance, strengthened Tennessee’s death-penalty statute. By deciding that the “especially heinous, atrocious, or cruel” aggravating circumstance in Tennessee’s statute did not encompass all rape-murders, the Supreme Court protected Tennessee’s death penalty from being found unconstitutional in federal court. If the Supreme Court had not ruled as it did, a federal court could have found Tennessee’s death penalty to be overly broad, striking it down as unconstitutional. Moreover, the Supreme Court decision left one “aggravating circumstance” against Odom for his resentencing. This meant that the jury could sentence him to death after a constitutionally valid sentencing hearing.

Despite the fact that the Supreme Court’s Odom decision bolstered Tennessee’s death penalty, a political firestorm engulfed the Supreme Court after its decision was published. Victims’ rights advocates and conservative activists started fund-raising campaigns and media blitzes to recall Justice White in her Aug. 1, 1996, retention election. The campaign against Penny White quickly became partisan.

The Republican Party began campaigning against White. Republican Gov. Don Sundquist and Republican U.S. Sens. Fred Thompson and Bill Frist announced that they opposed her retention. Former Gov. Ned McWherter, the Democrat who had appointed Penny White, publicly supported her retention.

In addition to partisan electioneering, the campaign against Penny White became entwined with multiple lawsuits over the Tennessee Plan itself. In May 1996, before the publication of the Supreme Court’s Odom decision, Lewis Laska, an attorney and professor at Tennessee State University, and John Jay Hooker, a former Democratic gubernatorial candidate, filed separate lawsuits in Chancery Court in Nashville attacking the constitutionality of the Tennessee Plan. The Chancery Court dismissed their lawsuits.

Laska and Hooker appealed the dismissal of their cases to the Supreme Court. On June 26, the members of the Supreme Court recused themselves from these appeals because each Supreme Court justice had a conflict of interest. (After all, the appeals directly affected whether, and how, they would keep their jobs.) Gov. Sundquist, who had announced his opposition to Penny White on June 20, appointed five members to a “Special Supreme Court” to decide Laska’s and Hooker’s appeals.

The Special Supreme Court, relying on a 1973 decision that upheld the modified Missouri Plan, ruled that the Tennessee Plan was constitutional. John King, an attorney from Knoxville, intervened in Hooker’s and Laska’s lawsuits and requested that he be allowed to run against Penny White. The Special Supreme Court opened White’s election to a contested election, giving King the opportunity to run against her. The Special Supreme Court issued orders, some of which appeared to be contradictory, on July 5, 8, 9, and 10 regarding the conduct of the Aug. 1 election. After those orders, according to the Special Supreme Court, “something approaching legal chaos ensued.”

Hooker sued the Special Supreme Court in federal court in Nashville. White joined a lawsuit that had been filed by other appellate judges in federal court in Memphis. In the end, Judge Bernice Donald, a federal judge in Memphis, settled the issue by ruling that White should be placed on the Aug. 1 ballot in a yes/no retention election.

While the various lawsuits over the Tennessee Plan were ongoing, the campaign against Penny White for the Odom decision continued in full force. Aside from Republican officials and politicians, numerous groups and individuals, including members of the Christian Coalition, police organizations, and prosecutors, campaigned against White. Two individuals, Verna Wyatt, a victims’ rights advocate in Nashville, and John Davies, a conservative activist from Chattanooga, received the greatest press coverage for their opposition to Penny White.

Verna Wyatt campaigned across Tennessee through interviews for newspapers and radio programs. According to Wyatt, she opposed Penny White because Penny White opposed the death penalty and “imposed her beliefs on the law.” Describing White and other judges, she says, “They look up some technicality to overturn a conviction. It’s not wise, and it’s not what our Founding Fathers wanted.” Wyatt describes her campaign against Penny White as “deeply personal”: In 1991 her sister-in-law and best friend, Martha Wyatt, was murdered. Since then, she has been active in victims’ rights causes.

John Davies, president of the Tennessee Conservative Union, similarly campaigned against Penny White through his organization and through media interviews. He first gained attention for reportedly soliciting $45,000 in contributions to campaign against White. Even after a year, his anger over the Odom decision remains; “I hope we never see a case as bad as the Odom case,” he says.

In the face of the campaign against her, Penny White could not defend herself. Under the Tennessee Code of Judicial Conduct, she could not comment on the Odom case because it was still before the Supreme Court. Neither could she state her position on the death penalty because judges are not allowed to comment on issues that are, or may come, before their court. Without being able to respond to the specific charges against her, White was removed from office by 55 percent of the voters in her August 1996 yes/no retention election.

Penny White is no longer a judge. She is currently a law professor at Washington & Lee University in Virginia. Therefore, she can now discuss her views on the Odom decision and the death penalty. She defends the Odom decision as a pro-death-penalty decision. “Our decision was a road map for how the prosecution could sentence [Odom] again,” she says. “We upheld Odom’s conviction. The death penalty was still an option for the jury.” She concludes, “Odom made the possibility of a federal reversal [of Richard Odom’s death penalty] less likely.” Regarding the death penalty, she says, “My decisions all supported the constitutionality of the death penalty.”

The Tennessee Plan was not supposed to work out this way. A sitting judge was turned out of office for a pro-death-penalty decision that was characterized by impassioned opponents as anti-death-penalty. Republican and Democratic officials and officeholders got involved in the controversy and spoke out for and against a sitting judge. In the end, the controversy over Penny White was anything but the nonpolitical and nonpartisan method of judicial selection the Tennessee Plan was supposed to create.

The proponents of the Tennessee Plan now hope that the Judicial Evaluation Commission will prevent a similar controversy. Justice Reid believes that the goal of the Judicial Evaluation Commission is “to have a broad base of people who are not accountable to the Supreme Court and judiciary. No one has a lock on who they are. It is necessarily a broad-based, independent group of people who will pass fair judgment on us.”

According to Riley Anderson, the current Chief Justice of the Supreme Court, “We don’t know how the Tennessee Plan will work. Penny White did not have the advantage of an evaluation process. Maybe the [Judicial Evaluation] Commission can institutionalize an education process.”

Wilder agrees. “I supported Penny White,” he says. “I’m sad we lost Penny, but I’m glad we didn’t lose the Tennessee Plan. Without performance review, the Tennessee Plan is no good. Penny White didn’t have performance review.”

According to Sarah Sheppeard, an attorney from Knoxville and a member of the Judicial Evaluation Commission, the commission is currently conducting its evaluation of the Supreme Court and other appellate court judges whose terms expire in 1998. The commission has solicited comments from attorneys, court personnel, and litigants who have had experiences with these judges. The commission has already conducted public hearings in Memphis, Nashville, and Knoxville, and it is currently conducting individual interviews with each judge. The commission’s reports on each judge who is up for reelection should be ready early next year.

John Davies is not optimistic about the effectiveness of the Judicial Evaluation Commission. He believes that the commission “is a smokescreen.” He predicts, “It will take them 30 years to find a judge they don’t like.”

Regardless of how the Judicial Evaluation Commission does its work, the controversy over State v. Odom will not go away. The Tennessee Conservative Union will probably work to defeat Justices Reid and Birch, who sided with Penny White in the Odom case. According to Davies, “The issues are the same. If Justice White deserves to be defeated, then Justices Reid and Birch deserve to be defeated.” Verna Wyatt likewise says that she will continue her campaign: “I’m going to do the same thing next year—especially against Justice Birch.”

Only time will tell, beginning with next August’s elections, whether the Tennessee Plan can produce a Supreme Court that is free from political pressures and partisan campaigning. In the meantime, Penny White has been hired to teach seminars for criminal-court judges in Kansas and Georgia. Her subject: “How to conduct murder trials that will withstand scrutiny if the death penalty is imposed.”

Mark Pickerell is a Nashville attorney who specializes in trial and appellate work. He has never argued a case before the state Supreme Court.

Mark Pickerell is a Nashville attorney who specializes in trial and appellate work. He has never argued a case before the state Supreme Court.