Stacey Barchenger

sbarchenger@tennessean.com

Nashville General Sessions Judge Rachel Bell is already facing scrutiny for her work schedule.

A Tennessean investigation found she signed orders for lawyers filling in for her.

Legal experts disagree on whether those orders that Bell retroactively signed were valid.

Bell points to Shelby County, where she says other judges sign off on orders they don't hear.

Eleven people were committed against their will to a Middle Tennessee mental institution without a signed judge's order in late June, a day when General Sessions Judge Rachel Bell was supposed to hear the cases.

But Bell was on vacation. The lawyer she picked to take her place on the bench said he forgot to sign the orders keeping those people in mental health facilities. Bell retroactively signed them for all 11 people six days later.

Bell's actions are raising eyebrows in the legal community and prompting questions about the legality of what happened.

The court clerk believes orders are valid once a judge states the ruling on the bench. But legal experts disagree about whether the retroactively signed orders were valid, and disagree about a judge's authority to sign orders in a case they did not hear. It's a practice Nashville lawyers and judges contacted by The Tennessean said they had never heard of before, though others said it happens regularly in other counties.

“I don’t know how she would have the ability to sign the order if she didn’t hear it,” said J.S. “Steve” Daniel, a former disciplinary lawyer for the state board that oversees judicial conduct.

"The question is this: Are the orders valid? Well, I’d say probably not, because she has no basis to sign them because she never heard any proof."

Bell, who is presiding judge until Sept. 1, said she routinely reviews orders handed down by judges and lawyers who fill in for her when she is gone. She told The Tennessean it was merely a miscommunication that left the 11 orders from June unsigned. Bell's policy calls for special judges — lawyers who sit as judges-for-a-day — to initial or sign orders, which she later reviews and signs.

When The Tennessean began asking questions about that practice, Bell did, too.

She reached out to David Cook, a former member of the state judicial conduct board and a Memphis lawyer who has consulted for The Tennessean on judicial conduct matters for this and other stories.

Cook said there is no statewide uniformity on practices when special judges hear cases. He said, based on his research, cases can be heard by special judges with no signature required, and a presiding judge can sign them days later after reviewing the order. He said the orders entered with Bell's signatures were valid.

"It is my opinion that all the orders entered during the (mental health) hearings where special judges presided for Judge Bell are valid," he said in an email.

It was not just one day that Bell signed orders in cases she did not hear in court.

On two days in 2015, Bell signed orders in 42 other cases she did not hear that involuntarily committed people to mental health facilities, Circuit Court Clerk Richard Rooker said. Those orders do not have Bell's substitute judges' signatures or initials either, according to Rooker, who said Bell signed the orders the same day the cases were heard.

On two days in April, 47 people were committed when lawyers acting as judges filled in for Bell. Those orders, according to Rooker's office, have the lawyers' initials and Bell signed them the same day the cases were heard.

This is not the first time questions have been raised about how Bell runs her courtroom. Earlier this year, another Nashville judge called into question Bell's schedule that left a man in jail without a hearing beyond the 10-day deadline recommended in court rules. Her actions in another case led to a formal complaint before the Tennessee Board of Judicial Conduct, and that investigation is pending.

Bell, who has been a judge since 2012, denies the allegations in the complaint and says it should be dismissed.

Lawyers as judges

State law sets out a procedure to find someone to fill in when a judge is gone.

It says judges should try to find peer or retired judges before seeking lawyers to take the bench during an absence. Judges individually keep lists of lawyers who can fill in, according to General Sessions Court Administrator Warner Hassell, and the lawyers Bell used are on her list. Each signed an oath before taking the bench, records show.

But there is little to no oversight of those lists. They are not kept by state court administrators, and Hassell said his own copy of the consolidated list for all judges was outdated and years-old.

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Records reviewed by The Tennessean show that only Bell used a lawyer as judge-for-a-day from January 2015 to June 2016. All 10 other General Sessions judges tapped retired judges to fill in if they would be gone.

Lawyers filled in for Bell four times — each time on the mental health docket — in that period.

Using lawyers to fill in lost popularity in Nashville years ago after several controversies, including in the mid-1990s when a lawyer served as judge while on probation from the board that oversees attorney discipline. In another instance, a Tennessean investigation found that a lawyer acting as judge awarded fees to partners in his law firm.

Still, it's not unheard of in Tennessee to use lawyers as fill-ins. General Sessions Judge Deborah Means Henderson, who hears the mental health commitment docket in Shelby County, said lawyers occasionally hear cases when there is a last-minute emergency, including when a judge is sick.

She said those special judges sign orders in the cases they hear. Sometimes, she said, when the elected judge comes back to the bench, they like to review and co-sign the orders.

Series of decisions

Before heading out of the country for a June 23 - July 3 vacation, Bell said she and her staff began searching for other judges to handle her cases.

An email sent June 17 by a court clerk and obtained by The Tennessean states Bell would be gone June 29 and July 1 and a lawyer named Gary Wood would fill in.

The email also says orders would be distributed to the hospitals and lawyers once Bell signed them.

On June 29 and July 1, Bell was assigned to hear cases at Middle Tennessee Mental Health Institute. General Sessions judges rotate, taking turns hearing those cases and determining if there is probable cause to hold someone in any of several local mental health facilities for up to 15 more days.

That hearing is a civil matter and, by law, must happen within five days of someone coming into an institution. State law and local rules set out what standards must be met when someone is committed to mental health services without their consent. Those requirements include a judge's order and two doctors' opinions.

"People should not be involuntarily committed unless it’s done by following the rules and regulations that have been promulgated by our legislature and the department of mental health," said Jeff Fladen, executive director of the National Alliance on Mental Illness Tennessee.

"If someone’s rights are violated, that is a concern."

Bell said in an email that her office asked Wood, a longtime attorney for the Metro Development and Housing Agency, in June “to be on standby to make sure court was covered while I was gone during the MTMHI (mental health) week."

Retired Judge John Brown of Nashville heard the mental health cases for Bell on July 1 and signed his orders that day. Bell said she wasn’t able to find another judge for June 29, so Wood stepped in.

But Wood did not sign the orders.

Rooker confirmed there were 11 commitment orders from the June 29 docket — the day Wood was on the bench — that were filed by clerk's office staff the same day, despite lacking Bell or Wood's signatures. Rooker said the orders are typically several pages long and include specific reasons, presented during the hearing, why someone should be kept in a facility.

The Tennessean's requests to review the orders were denied by officials citing federal privacy laws for medical records.

Rooker said his staffers should not have formally entered the orders that were not signed. Although he considers orders valid once a judge announces them from the bench, written orders are necessary for legal documentation and processes like appeals, he said.

“I can promise you it won’t happen again,” Rooker said.

Bell said she reviewed and signed the orders when she got back to work six days later.

“I noticed that Attorney Wood had not initialed or signed them and made inquiry,” she said in an email. “To my understanding there was some miscommunication as to where Attorney Wood was to initial or sign, but he has subsequently signed them.”

Wood said he must have forgotten to initial the orders. After The Tennessean began asking about them, Bell said Wood signed the orders.

David Raybin, a Nashville lawyer who serves as a legal analyst for The Tennessean, said he had never heard of a judge back-signing orders. He said the purpose of finding special judges is to avoid elected judges having to retroactively sign them.

He noted that since Wood has since signed the orders, they are now valid.

Raybin said the people committed could have challenged the orders had Wood never signed them. He noted the high stakes involved when judges commit people, with consequences extending beyond an individual being held against their will.

"If you’ve been judicially committed, you lose your firearm rights," Raybin said. "If you’ve got a void court order, then I don’t know if those firearm rights are void."

Reach Stacey Barchenger at 615-726-8968 or on Twitter @sbarchenger.