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Survey digs into judges' views

By Andy Sher Nashville Bureau
Chattanooga Times Free Press

NASHVILLE — A conservative advocacy group headed by Sen. David Fowler, R-Signal Mountain, wants Tennessee Supreme Court justices and other appellate judges up for re-election to disclose their legal views on issues including same-sex marriage and abortion.

"Family Action Council seeks your views on a number of political and legal issues and requests you to respond," Sen. Fowler, the newly created group's executive director, requests in the survey, dated June 5. Sen. Fowler, who did not respond to telephone calls Monday, said in the survey that judges can answer questions about specific issues in light of a 2002 U.S. Supreme Court decision in a Minnesota case involving First Amendment rights of judicial candidates. Sen. Fowler is not seeking re-election.

Tennessee voters in August will decide on a yes/no basis whether to retain three current members of the five-member state Supreme Court as well as about two dozen intermediate appellate judges. Two Supreme Court justices are not seeking retention to the court.

The three remaining justices, Chief Justice Mickey Barker and Justices Janice Holder and Cornelia Clarke, have not yet responded to the survey, Supreme Court spokeswoman Sue Allison said.

"None of the three really know what they'll do with it at this point," Ms. Allison said, noting justices have had a "full schedule" the past two weeks with hearings and conferences. "They'll individually come to their own conclusions."

But the survey, which was due to be returned June 15, is coming under question by some, including former Tennessee Supreme Court Chief Justice Frank Drowota.

Such surveys are "really asking them (judicial candidates) to address a viewpoint, and they will have basically prejudged future cases or at least given an appearance that they have prejudged it," former Chief Justice Drowota warned.

Mr. Drowota recently headed a Tennessee Bar Association panel that issued a voluntary "Code of Conduct" that judicial candidates can adopt. It includes a promise that the candidate will "not announce positions on matters that might come before the court."

Tennessee Bar Association Executive Director Allan Ramsaur said another provision in the Supreme Court's official Tennessee Code of Judicial Conduct also says a judge may not "commit" or appear to commit how he would rule in advance.

"Our system depends on judges who are impartial, who come only judging the law and the facts before them and don't come with predispositions or announced predispositions," Mr. Ramsaur said.

Peter Brandt of Focus on the Family, a national family-values organization aligned with Sen. Fowler's group, said voters are entitled to know candidates' thinking.

"I think it's entirely pertinent to ask a judge whether he thinks certain things are consistent with the constitution of a state," Mr. Brandt said.

He said many voters are "very concerned that laws are being made up out of the clear blue."

One survey question asks judicial candidates whether they think there is a state constitutional "right" to same-sex marriage. Candidates can agree, disagree, say they are undecided, refuse to respond or decline to answer based on a belief the state's judicial canons do not permit an answer.

Other questions on the survey ask whether candidates believe the state's constitution requires the use of public funds for abortion. Candidates also are asked whether they believe the state constitution permits the teaching of both evolution and "alternative theories" such as creationism.

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