By Richard Locker,
October 9, 2013

NASHVILLE — Gov. Bill Haslam has authority to appoint trial and appellate court judges in Tennessee even though the state’s Judicial Nominating Commission ceased to exist on July 1, the state attorney general said Wednesday.

Atty. Gen. Robert E. Cooper’s advisory opinion was in response to a request by the governor over whether he has authority to fill judicial vacancies after the nominating commission terminated under the Tennessee Governmental Entity “Sunset” Law, which requires state agencies, boards and commissions to be periodically reviewed and renewed by the General Assembly or they cease to exist.

Citing a 2009 statute that revised the judicial nominating process, Cooper’s opinion said the “governor has the authority to appoint any qualified person to fill a judicial office that becomes vacant after the termination of the Judicial Nominating Commission.” The opinion says the 2009 statute, sponsored by Senate Majority Leader Mark Norris, R-Collierville, contained a “fail-safe” provision that allows the governor to appoint any qualified person if the Judicial Nominating Commission failed to act within 60 days of notification that a judicial vacancy exists or will exist.

The commission met in late June to review applicants for three appellate judgeships that will be vacated by retiring judges, then nominated three lawyers and sent them to the governor. Other vacancies are likely to occur later.

Tennesseans will vote in a state constitutional referendum next year on whether to amend the Tennessee Constitution to continue the current process of gubernatorial appointment of appellate court judges followed by “yes or no” retention elections by voters.

David Smith, the governor’s press secretary, said Wednesday that Haslam “would like to keep our process for selecting judges in Tennessee the same until Tennesseans have the opportunity to vote on the proposed constitutional amendment in 2014. He supports the amendment and believes it answers unresolved questions.”

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