Did Supreme Court Justice Koch or any of the other judges violate the Code of Judicial Conduct while lobbying your State Representatives or State Senators?  

I only filed a limited number of open records requests.  I only requested written documentation from members of the Judiciary.  I did request a copy Lt. Governor Ramsey’s calendar, and as I’ve shown, several judges who will be directly affected by this year’s legislation have met with Ramsey on the subject.

The few documents I have received give me pause as I read over the Code of Judicial Conduct.  Supreme Court Justice Koch’s letter of March 27, 2009 raises even more questions.

Here is the pdf file of his full letter, the picture above is only the front page: 20090417110418951

An interesting note about Justice Koch’s letter is his statement on page 1 that reads:

“Under normal circumstances, it would be ethically inappropriate for me to discuss constitutional questions that could end up in state court.  However, because I plan to recuse myself from the consideration of any case involving facial constitutionality of the process by which I am elected, I hope you will permit me to use this letter to provide a few thoughts for your consideration.”

Now as I showed earlier, Justice Gary Wade has communicated with State Representatives and State Senators.  I have talked with members of both houses who have confirmed that he sat in their offices and stated his opinion.  He did just that on WBIR’s Sunday program, Inside Tennessee.

Justice Holder also defended the selection process at a public speaking event, and Justice Holly Kirby has been very busy meeting and writing.  But of the written documentation that I’ve obtained, none of the other justices have mentioned their intentions to recuse themselves.  Does this mean in the opinion of Justice Koch that those justices are acting inappropriately ethically?  Justice Koch implies that it would be ethically inappropriate to comment if he didn’t announce his intention to recuse himself.

In looking at the Code of Conduct for members of our Judiciary, I note Canon 2 Sec. B notes that

“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others;”

As Holder, Koch, Wade and Kirby are all sitting judges with a stake in the legislative outcome so to speak, are they lending the prestige of their office to advance what will benefit them personally?  It looks like it to me.

Sec. B also notes “Similarly, judicial letterhead must not be used for conducting a judge’s personal business.”

Clearly Justice Koch, as well as Justice Holder, want to make it clear that as judges they are afforded 1st Amendment rights as citizens.  However, they have clearly used their positions to lend greater weight and authority to their opinions regarding passage of this particular legislation.   So have Justice Kirby and Wade by denoting their titles/positions on their letterhead.

Note: An article appearing in the Nashville Scene’s blog Pith in the Wind is an example of the common understanding regarding the power of the judiciary as the author writes:

Lt. Gov. Ron Ramsey is questioning whether Supreme Court Chief Justice Janice Holder has broken ethics rules by speaking out against the popular election of judges. It’s almost unheard-of in Tennessee for a politician to criticize a justice, but to reporters today, Ramsey said:

“I guess it bothers me now when we have Supreme Court justices going across the state putting politics back into this. I know Janice Holder was down in, I think, Memphis this week saying that we shouldn’t be electing judges. I don’t know exactly how far that goes and still be ethical, to be honest, for them to be out here speaking to Rotary clubs and Kiwanis clubs lobbying for a bill.