Amendment Two by Justin Steele

            The other day Larry asked me to do a research on Amendment 2 and come up with arguments for what he wanted to say in an address he was about to give.  Regrettably, I did not know anything about Amendment 2, which will be on the ballot in November, but I started and researching and was a little disappointed with what I found.  

Currently, the Tennessee Constitution says, “The judges of the Supreme Court shall be elected by the qualified voters of the state…”.  From “shall be elected by the qualified voters” we derived an interesting process.  Step one, a committee of attorneys, non-attorneys, and judges choose three candidates for the Supreme Court or the Court of Appeals. Step two, the governor chooses from those three candidates.  However, if the governor does not find any of the three candidates satisfactory, he can deny all of them but the governor must choose from the second round of three. Step three, once the governor has made his decision, the appointed (not elected) judge starts to work immediately, finishing out whatever term is left from the previous judge.  At the end of that term, the judge comes up for a retention election.   A retention election is simply the judges name is placed on a ballot with a “yes” or “no” option with no other candidates for judge.  If the people happen to all vote no, then the process restarts and a new judge is appointed. 

Amendment two attempts to change the language of the Tennessee Constitution to say,

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state.

While the amendment does not actually change the current process much.  For instance, it only switches the order by which the governors are chosen.  Step one, the governor appoints a judge from whatever pool of candidates he likes.  Step two, the legislature either approves or denies the candidate within sixty days.  Step three, the people have a say in the same sort of retention election as before.  However, this new amendment does allow for the legislature and governor to pretend like they have always been following the constitution.

            Personally, I think that this is a bad amendment and I would prefer we go back to what the constitution originally required where the qualified voters get to  elect the supreme court.

Also, don’t forget to go to http://commercialappeal.secondstreetapp.com/l/Memphis-Most-2014/Ballot/MemphisServices and vote for Rice, Amundsen & Caperton as the best law firm in Memphis.  Voting continues every hour until June 9^th.

Extention of Gideon v. Wainwright by Justin Steele

            For the past couple weeks I have been thinking about Gideon v. Wainwright and the Sixth Amendment right to counsel.   In Gideon, a man was arrested, for public intoxication and for allegedly stealing the money from a jukebox.  The Florida court would not give him counsel despite the fact that he had no money to afford counsel.  During that time, the states were not required to give indigent defendants the assistance of counsel.  Because of this, the state of Florida had determined they would only provide assistance of counsel when a party was unable to afford one and it was a capital offense.  Eventually, after certiorari was granted, the United States Supreme Court determined that the Sixth Amendment Right to Counsel was going to be applicable to the states by the Fourteenth Amendment due process clause.   While Gideon forced the states to provide assistance of counsel to insolvent defendants in criminal matters, it does not require the state to provide insolvent individuals assistance of counsel in civil matters.

            States are not required to provide assistance of counsel in any kind of civil proceeding.  However, in 2006, the ABA’s Standing Committee on Legal Aid and Indigent Defendants (SCLAID) drafted basic principles for when the civil right to counsel should exist.  As a result, many states have either tracked the ABA’s basic principles exactly, or adopted a large portion of it.  These basic principles recognized a governmental obligation to fund and supply effective legal representation to all poor persons involved in the type of high stakes proceedings within the civil justice system that place them at risk of losing their homes, custody of their children, protection from actual or threatened violence, access to basic health care, their sole source of financial support, or other fundamental necessities of life. 

            Civil right to counsel is obviously a hard thing for a lot of people to get behind because of the obvious costs that will be put onto the public.  To fix this, California in 2009 enacted legislation that added a ten dollar charge to certain post judgment fees that was going on in the state to fund a civil right to counsel pilot program.  While I think that an additional fee and pilot program is a fine option for the state of California, other states have been trying different ideas. For instance, Tennessee does not provide any kind of civil right to counsel but it does suggest that attorneys within the state report their pro bono hours that they do each year.  While Tennessee’s method does not provide a guaranteed right to counsel, it gives attorneys an incentive to help people that do not have the ability to pay.  Some states have gone even further and changed the should do pro bono work to the must do a set amount of hours each year in pro bono work. 

            I think that an extension of Gideon v. Wainright to certain high risk civil cases is approaching quickly.  Other than the SCLAID, there are several organizations that are lobbying, writing amicus briefs, and organizing to force the state legislatures to look into civil right to counsel, such as, National Coalition for a Civil Right to Counsel (NCCRC), which has no set base and Committee for Indigent Representation and Civil Legal Equality (CIRCLE) which, is based at Seattle University.   This will be an interesting development in the law and I look forward to seeing how it plays out.