By Tom Humphrey,
April 14, 2012

NASHVILLE — Legislators have reached what Senate Majority Leader Mark Norris calls “the stalemate place” on how Tennessee’s top judges should be selected and are now racing to delay a decision until next year.

After a convoluted series of events, the Senate has before it two proposals for amending the state constitution. Lt. Gov. Ron Ramsey says he hopes lawmakers will approve both before adjourning the 2012 session, probably in two weeks.

If that happens, lawmakers can pick up the stalemate next year and try to resolve it. If not, the inaction will apparently mean no change in the status quo until at least 2018.

The two competing proposals:n SJR183 by Norris, as amended, would repeal the current constitutional provision declaring that top judges “shall be elected by the qualified voters of the state” and declare instead that the Legislature is “authorized to establish, by law, a system of merit-based appointments with retention elections for the judges of the Supreme Court and for the judges of the intermediate appellate courts.”

Several conservative legislators say the present system, enacted by the Legislature years ago, violates the state constitution as it now stands. Ramsey, House Speaker Beth Harwell and Gov. Bill Haslam all have endorsed the Norris plan.n SJR710 by Sen. Brian Kelsey, R-Collierville, which would adopt a system similar to that used by the federal government. The governor would appoint the judges, subject to confirmation by the Legislature.

Kelsey calls it “the Founding Fathers-plus plan.” A flaw in the federal system, he says, is that the Senate often sits for months or years without approving the president’s court nominees, if the president is of a different political party than the Senate majority. The Kelsey plan says that, if the Legislature fails to act negatively on a gubernatorial appointee within 60 days, the nominee is considered confirmed.

Similar proposals are pending in the House, where last week a separate bill to repeal the current statutory plan for selecting top judges and instead have them chosen in popular election contests (HB173) failed on a tie 7-7 vote in the House Judiciary Committee. The sponsor, Republican Rep. Glen Casada of College Grove, is among those who argue the present plan is unconstitutional because the state constitution says judges are to be elected by “vote of the people.” The present plan allows only a retention election — voters deciding on a yes-or-no basis whether a judge gets a new term — for judges appointed by the governor.

Under the rules for amending the state constitution, a proposal must pass two biennial sessions of the General Assembly, then be submitted to a statewide referendum in a gubernatorial election year. Thus, the Norris and Kelsey proposals must pass in the 107th General Assembly, which will soon become history, to be considered for passage by the 108th General Assembly, which will convene in January 2013.

If approved in the 108th, a measure could then be put to a statewide vote for approval in November 2014, a gubernatorial election. If not, the next gubernatorial election would be in 2018.

Ramsey told reporters Thursday that he wants a “dual track” — passage of both resolutions now, keeping alive the possibility that one or the other can win the necessary two-thirds majority in the 108th General Assembly.

Public schools: A proposal by Rep. Art Swann to allow the state commissioner of education to waive enforcement of laws applying to public school systems has been attacked on a bipartisan basis by colleagues who say it probably violates the state constitution.

The bill (HB1970, as amended) is titled “The Public School Achievement Flexibility Act.” It would empower the commissioner to grant high-achieving school systems a “waiver of any state board (of education) rule or statute that inhibits or hinders the desired flexibility for the school.”

The Maryville Republican said state law already allows charter schools and achievement school districts, the latter of which are under state supervision because of low performance, to ignore regular rules and laws.

“If it’s good for charters, why shouldn’t it be good for public schools?” he said, describing the legislation as “leveling the playing field.”

But the measure was sharply criticized, first by Democrats, then by Republican Rep. Casada.

Rep. Mike Stewart, D-Nashville, said the bill would allow “one unelected individual to dispense with any law we have.” House Democratic Caucus Chairman Mike Turner said that the Legislature, not a commissioner, is the only body empowered by the state constitution to overturn a state law that has been duly enacted.

Casada, after declaring it an unusual situation for him to agree with the Democrats, said he likes the idea of flexibility for schools but the notion that “an unelected commissioner, answering only to the governor, can overturn laws that we pass scares me.”

Swann wound up postponing a House floor vote for a week. Later, Turner told reporters that he wonders whether it is constitutional to waive laws for charter schools and achievement school districts and may seek the attorney general’s input on that question.

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