It might be a while until some shiny new judges are minted unless the State Legislature acts.

Tennessee Attorney General Bob Cooper issued an opinion today at the request of a number of members of the State House and State Senate, confirming what many had expected all along. The Judicial Evaluation Commission and the Judicial Selection Commission were terminated on June 30, 2008, and unless legislative action is taken soon, no new judges can be recommended for appointment after July 1. In addition, judges already in office and appellate judges wouldn't face the voters in retention elections in either 2010 or 2014.

State Sens. Doug Overbey and Dewayne Bunch, along with State Representatives Frank Niceley and Beth Harwell, all Republicans, asked Cooper the following three questions.

1. How will incumbent trial and appellate court judges stand for election who (a) were appointed on or after September 1, 2008, and choose to seek election on August 5, 2010, to the unexpired portion of the eight-year term or (b) are currently serving the remainder of an eightyear term and who seek reelection on August 7, 2014, to a full eight-year term?

2. How will vacancies occurring in the trial or appellate courts on or after July 1, 2009, be filled?

3. If an incumbent judge decides not to seek reelection at the August 7, 2014, election, how will that vacancy occurring on September 1, 2014, be filled?

Cooper's response to three questions:

1. Because there would be no statutory mechanism in place for the election of appellate judges upon the expiration of the two commissions, there could not be an election for appellate court judges in either 2010 or 2014. By virtue of Article VII, §5, of the Tennessee Constitution, incumbent appellate court judges would hold over pending further action of the General Assembly to determine the manner of the election of such judges. On the other hand, expiration of the two commissions would not change the current system for electing trial court judges. Incumbent trial court judges either seeking election in 2010 to the unexpired portion of an eight year term or reelection in 2014 to a full eight-year term could stand for election by the qualified voters of their districts in August of 2010 and 2014, respectively.

2. Vacancies occurring in the appellate courts on or after July 1, 2009, could not be filled because there would be no operative statutory procedure for the filling of vacancies after June 30, 2009. Furthermore, any vacancy occurring before July 1, 2009, on which the Judicial Selection Commission had not completed its work by June 30 could not be filled. Vacancies occurring in the trial courts could only be filled at the next regular August election occurring more than 30 days after the vacancy arose. The provisions of current law directing the governor
to appoint persons to fill trial court vacancies on an interim basis before the next regular August election would be inoperative, and, thus, no such appointments could occur.

3. If an incumbent appellate court judge decided not to seek reelection in 2014, there would be no operative statutory procedure to appoint a new judge. Accordingly, the incumbent appellate court judge would hold over in the office by virtue of Article VII, §5, of the Tennessee Constitution. If the incumbent appellate court judge did not desire to hold over, he could choose to resign his office. That action would create a vacancy. However, because there would be no operative statutory procedure for filling a judicial vacancy on the appellate courts, the vacancy could not be filled. By contrast, if an incumbent trial court judge decided not to seek reelection in 2014 and failed to take the steps necessary to qualify as a candidate for reelection, his successor would be elected at the August election to the eight-year term commencing September 1, 2014, by the qualified voters of the district.

The opinions isssued by the Attorney General coincide with the expectations with what legislators have told NashvillePost.com that they were expecting.

Earlier this week, NashvillePost.com asked a number of elected officials the status of judicial reform legislation and was told that conversations among lawmakers and members of the bar (attorneys and judges) are ongoing and it will be a few weeks until any proposals regarding judicial selection and evaluations would be unveiled.

To read a full copy of the opinion, click here.