The Tennessee Plan is a system used to appoint and elect appellate court judges in Tennessee. The system requires candidates be selected by a nominating commission and therefore plays a significant role in the selection of the state's judiciary. It is largely patterned after the Missouri Plan, and an earlier version in Tennessee was called the Modified Missouri Plan.
The Tennessee Plan provides that appellate court vacancies must be filled by one of three nominees submitted by the Judicial Nominating Commission and approved by the governor of Tennessee from a panel. At the next general election and at the end of every eight-year term, voters' input is limited to deciding whether each judge shall be retained through a yes-no election.
This system applies to the Tennessee Supreme Court, the Tennessee Court of Appeals, and the Tennessee Court of Criminal Appeals. The next regular election for state judges will be in August 2022. In November 2014 a referendum on formally adopting the Tennessee Plan as an amendment to the Tennessee Constitution, clarifying its status, will be held.
When a vacancy occurs, the Judicial Nominating Commission accepts applications from any qualified Tennessee lawyer. Typical qualifications include age, residency, and proper professional standing. The commission then chooses three nominees from the applications received. The commission submits these three nominees—altogether called a panel—to the governor of Tennessee. Residency qualifications include not only state citizenship, but also citizenship within a particular Grand Division.
If the governor rejects the entire panel, the commission must submit another panel. When this occurs, the governor must choose a judge from the second panel. No one who was on a rejected panel of nominees can be on the second panel. This process effectively guarantees that one of six of the nominees chosen by the 17 members of the Nominating Commission must become a judge.
The Judicial Nominating Commission is composed of 17 unelected members, with explicit requirements that the majority be lawyers.
Once chosen by the governor, the judge takes his/her seat. At the first statewide general election following his or her appointment the person's name is placed before the public on the ballot on a simple yes-no basis, e.g., "Shall Jon R. Smith be elected and retained as Judge, Court of Criminal Appeals, for Middle Tennessee?" If a majority of voters decides this question in the negative, the process outlined above starts over.
Every eight years (1998, 2006, 2014, 2022, et seq.), all members of all of the state appellate courts are subjected to this process as well. All judges are elected statewide, not just in the Grand Division from which they are appointed.
In 2006, all judges submitted for approval received an affirmative vote of at least 70 percent.
In advance of the end-of-term retention elections, the 12-member Judicial Performance Evaluation Commission reviews the record of incumbent judges and publishes its approximately six weeks before the retention elections. This report gives the panel's rationale for its recommendations based on the public record of each of the judges and a public interview process in which potential areas for improvement are noted. The report summarizes these findings and notes the vote by which judge was recommended (or, theoretically, not recommended) for retention, although not how each individual commissioner voted.
This report is published in the state's major metropolitan newspapers; the 2006 report appeared in Sunday papers as a special section. The 2006 report endorsed all of the incumbent judges seeking reelection, most unanimously and none by a margin of less than 8-3; one member appointed to the review panel at this time was unable to serve.
The General Assembly adopted the Modified Missouri Plan in 1971 to apply to judges of the Supreme Court, Court of Appeals, and Court of Criminal Appeals.
Two years later, the Democratic majority in the Legislature was alarmed that Republican Gov. Winfield Dunn was going to be able to appoint all five Supreme Court justices when their eight-year terms expired in 1974. The Legislature passed a bill to exempt the Supreme Court from the Modified Missouri Plan and return it to popular election, but it was vetoed by Governor Dunn.
At the same time, Republicans in upper East Tennessee were pressing hard to create a new medical school at East Tennessee State University (ETSU). Dunn, who was from Memphis, opposed the creation of a second state medical school that would compete for resources with the University of Tennessee Health Science Center (UT Health and Sciences Center), which was in Dunn's hometown. Dunn vetoed the bill creating the medical school.
House Speaker Ned McWherter, D-Dresden, and Rep. Palma Robinson, R-Jonesborough, agreed to swap votes with McWherter providing some Democratic votes to override the medical school veto and Robinson providing some Republican votes to override the Supreme Court veto. The deal went down just as planned, created what's now known as the James Quillen School of Medicine at ETSU, and removed the Supreme Court from the Modified Missouri Plan.
From 1974 until 1994, justices of the Supreme Court stood for partisan election, but they were nominated by the executive committees of their respective parties. Reflecting the partisan balance of the state at the time, Democrats won every election for the Supreme Court in this time frame, often without Republican opposition.
The Modified Missouri Plan continued to apply to the two intermediate appellate courts. During the 20 years of the Modified Missouri Plan, no judges were removed from office by the voters.
In 1994, the Legislature overhauled the process to include the Supreme Court again, provide more evaluation of incumbent justices, and provide more information to voters in advance of retention elections. The Judicial Performance Evaluation Commission was created to review and rate the performance of individual judges and publish that information. This became known as the Tennessee Plan.
Under the Tennessee Plan, one judge (State Supreme Court Justice Penny White) has been removed (in 1996). She was highly rated by the Evaluation Commission, but her opinion in a death penalty case became controversial.
Criticism of the plan centers on the creation of a self-perpetuating system of selection in which the public at large is in effect shut out of meaningful decision-making. Some opponents have asserted that the process violates the Tennessee State Constitution in that the yes-no balloting it calls for does not truly constitute an "election" in the sense intended by the document's framers. This question was adjudicated by a special Supreme Court in a case filed by political gadfly John Jay Hooker. The regular members of the Supreme Court recused themselves from the case as interested parties, since they had been selected under the provisions in question. The special court found the process to be fully compliant with applicable provisions of the state constitution.)
However, the General Assembly chose to terminate the selection commission under provisions of the Tennessee Sunset Law, which causes the existence of most state agencies to end automatically after a specific period of years unless their continued existence is reauthorized. The Judicial Selection Commission was sunseted as of June 30, 2013; however, a new 17-member body consisting of many of the members of the former commission, but several new appointees, assists Governor Bill Haslam in appointing persons to judicial vacanices until an amendment to the state Constitution specifically authorizing the Tennessee Plan is voted on in the November 2014 general election.
- The names of all 27 judges (three Supreme Court and 12 each on the Court of Appeals and Court of Criminal Appeals) are available here: .
- Judicial Branch in Tennessee Blue Book