Tennessee GOP primary fee creates ethical dilemma for judge candidates

Nov. 18—NASHVILLE — The Tennessee Republican Party's approval earlier this year of a plan to require that candidates for federal, state and county elected offices pay a fee to run in a GOP primary is generating a case of ethical, as well as political, heartburn for state judges and judicial candidates.

The legal angst stems from a Sept. 7 opinion from the state's judicial ethics committee about the issue.

The panel stated in an advisory opinion that Tennessee's Rules of the Code of Judicial Conduct bar the practice of paying the fee, adopted in January by the GOP's state executive committee.

The fee was imposed with a sliding fee schedule with amounts determined by which office is being sought.

For example, candidates running in a Republican primary for statewide office — governor and U.S. Senate — are now required to pay $5,000 to run. Candidates for judicial offices must pay $500 to run in the primary.

The change came about for multiple purposes, one being to bring new money into the state GOP's coffers.

By tradition in Tennessee, the only requirements for being eligible to run have been to get 25 signatures from qualified voters, to be of age to vote and to reside in the district or county where seeking municipal, county or legislative office.

The judicial ethics committee was asked whether the state's Rules of Judicial Conduct permit a judge or judicial candidate to pay what amounts to an "assessment" paid to a political organization for the purposes of offsetting the costs of the organization related to its endorsement of the judge or judicial candidate.

"No," the seven-judge Ethics Committee wrote in its seven-page opinion. "[Rule of Judicial Conduct] 4.1(A)(4) generally prohibits a judge or judicial candidate from paying an assessment to a political organization, and RJCs [rules] 4.2 and 4.3 contain no exception for judges or judicial candidates."

The same applies to whether a judge or judicial candidate may pay what amounts to an assessment to a political organization in order to join the organization's balloting efforts, or to be included on the ballot with nonjudicial candidates, the panel stated.

Concerns about the Republican state executive committee's actions were raised in a Sept. 17 letter to state Sen. Todd Gardenhire, R-Chattanooga. It was written by Hamilton County Chancellor Jeffrey M. Atherton on behalf of himself and other local judges in the state's 11th Judicial District, comprised solely of Hamilton County.

All the state court judges in Hamilton County are Republicans, Atherton noted, including himself.

"We are concerned about the 'assessment' requested by the state Republican Party," Atherton stated in the letter. "In light of the Judicial Ethics Committee Advisory Opinion 21-02 we are placed in a true catch-22 situation. If we pay the assessment, we are committing an ethical violation.

"I am sure you can see why that would be repugnant for us as judges," Atherton continued. "If we don't pay the assessment, we may be compelled to run as 'independents,' significantly and adversely impacting the likelihood of re-election."

The opinion was based on a series of questions regarding the "interplay" between two rules of the Code of Judicial Conduct under Tennessee Supreme Court Rule 10, Canon 4.

The canon states this as a general principle: "A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity or impartiality of the judiciary."

Judges and chancellors, Atherton wrote, rule on each case "lawfully and equitably based upon the applicable law and the facts presented, regardless of political affiliation. However, we are entitled to have affiliation with a political party should we choose, as long as it does not interfere with the administration of justice.

"That being said, surely it cannot be the intent of the Republican Party to 'hamstring' Republican judicial candidates," Atherton wrote. "If the assessment continues to apply to us, that is exactly the effect."

Democratic candidates will have their party designation next to their name since the Tennessee Democratic Party doesn't have the assessment, Atherton said. Everyone else, including Republicans, would be listed as independents, he added.

"If the legislature decides that judicial elections should be nonpartisan, we would, of course, comply," Atherton wrote in the letter to Gardenhire. "However, the legislature has not chosen to do so for this district. Is this assessment, as applied to judicial candidates, truly what the Republican Party sees as a mechanism for retaining a judiciary with conservative moral and ethical values?"

He called the situation "untenable."

Atherton said in a phone interview with the Times Free Press on Wednesday, "I stand on what I said — wait a minute, we're in a catch 22."

Gardenhire said in a telephone interview Wednesday he is readying a bill he intends to push come January to resolve the concerns.

"I've been a proponent of wide-open primaries since the early '70s," Gardenhire said. "When you start putting a fee on candidates for office to run on a political party, you automatically limit who can be a candidate."

The GOP fee risks discouraging attorneys from running who may be good candidates, he said.

"And only well-financed and well-heeled individuals that are attorneys could run for judgeships," Gardenhire said. "I think the State Republican Party has erred in an attempt to raise money to finance their operation by putting an undue burden on judicial candidates."

Gardenhire has drafted a one-page bill to address the issue in state law.

One section states that elections for chancellors, circuit court judges, criminal court judges and judges of other courts of record "must be nonpartisan."

The second section addresses another section of state law to say this: "[A] political party shall not require a person to pay a fee as a requirement to run as a candidate for that political party."

Tennessee Republican Party Chair Scott Golden said in a text in response to Times Free Press questions that the state GOP is "aware of the opinion" of the ethics committee.

"We have had several attorneys looking into the language of the opinion over the last several weeks with the anticipation that a decision will have to be made prior to Dec. 20 when [qualifying petitions to run] will be available."

The state executive committee will meet Dec. 4.

"[And] this issue will be one of the main topics of the meeting," Golden said.

"We appreciate everyone's patience as we anticipate fielding the largest number of Republican candidates in the history of Tennessee. [Next year] will feature elections for all judicial offices, all county offices, many school board offices along with state and federal offices after the conclusion of the redistricting process."

Partisan school board races are a new development in Tennessee and were approved by the Republican-led legislature during its recent special session to push back on COVID-19 mask and vaccine requirements.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.