In The Special Supreme Court of Tennessee

7/27/2019 In The Special Supreme Court of Tennessee

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IN THE SPECIAL SUPREME COURT OF TENNESSEE

AT NASHVILLE

JOHN JAY HOOKER, et al. )

)

Appellant/Petitioner, ))

v. ) Case No. M2012-01299-SC-R11-CV

)) On appeal from Davidson County

) Circuit Court Case No. 12C735

GOVERNOR BILL HASLAM, et al. ))

Appellee/Respondent. )

______________________________________________________________________________

A MOTION TO PERMIT THE FILING OF THE ATTORNEY GENERALS OPINION

13-76, OCTOBER 9, 2013, AND A RESPONSE TO THAT OPINION IN THE FORM OF

A LETTER TO THE GOVERNOR

______________________________________________________________________________

The Attorney Generals opinion is a public document and was by his office disseminated

to the press. That opinion has been issued while this case is still pending, and consequently, in

the opinion of this lawyer, should be considered in deliberations regarding this case. In that

regard, this lawyer wrote a letter to the Governor of Tennessee to whom the opinion was

addressed, which is self-explanatory and attached hereto.

The underlying issue in this case is the constitutionality of the retention election statute.

Therefore, the Attorney Generals opinion is relevant to this case. In his effort to defend the

constitutionality of the retention election statute, which is obviously unconstitutional because the

Legislature has no power under Article VII, Section 4 to determine the manner of election

of judges either for the full term or to fill a vacancy for the unexpired term because the

manner of the election of judges is fixed by the Constitution in Article VI, Sections 3 and 4

and Article VII, Section 5, the Attorney General issued Opinion 13-76 on October 9, 2013.


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Respectfully submitted,

____________________________

JOHN JAY HOOKER, BPR #005118

115 Woodmont Blvd.Nashville, Tennessee 37205

Phone (615) 269-6558

Cell (615) 479-6531Fax (615) 383-6036

[email protected]

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing has been sent via First Class

mail, postage prepaid, to:

Janet Kleinfelter

Deputy Attorney GeneralPublic Interest Division

Office of the Attorney General

P.O. Box 20207Nashville, Tennessee 37202

William A Blue, Jr.Constangy, Brooks, and Smith, LLP

401 Commerce Street, Suite 700Nashville, Tennessee 37219

Jacqueline B. Dixon

Allan F. RamsaurTennessee Bar Association

Tennessee Bar Center

221 4th

Avenue North, Suite 400Nashville, TN 37219-2198

Patricia Head MoskalEdmund S. Sauer

Bradley Arant Boult Cummings, LLP

1600 Division Street, Suite 700P.O. Box 340025

Nashville, TN 37203


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Attorney General Robert Cooper, Jr.

Attorney General for the State of TennesseeP.O. Box 20207

Nashville, TN 37202

On this the 15th day of October 2013. ________________________

John Jay Hooker


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JOHN JAY HOOKER

115 Woodmont Blvd.Nashville, TN 37205

Phone (615) 269-6558

Cell (615) 479-6531

Fax (615) [email protected]

October 14, 2013

Governor Bill HaslamTennessee State Capitol

Governors Office, First Floor

Nashville, Tennessee 37243

RE: Attorney Generals Opinion 13-76 which you, as Governor, requested

Dear Governor,

I am writing you as a lawyer sworn to support the Constitution and as a two-time

Democratic nominee for Governor who campaigned for Civil Rights and the Rule of Law, in

an effort to ask you to reject the opinion of the Attorney General filed August 9, 2013, which

opinion was designed to falsely claim that the Legislature has the power to give the Governor

the power to appoint judges under Article VII, Section 4 in direct violation of Article VII,

Section 5 of the Constitution for the following reasons.

Article VII, Section 4 provides:

The election of all officers, and the filling of all vacancies not otherwisedirected or provided by this Constitution, shall be made in such manner as the

Legislature shall direct.

And, Article VII, Section 5 provides:

Elections for Judicial and other civil officers shall be held on the first

Thursday in August, one thousand eight hundred and seventy, and foreverthereafter on the first Thursday in August next preceding the expiration of theirrespective terms of service. The term of each officer so elected shall be computed

from the first day of September next succeeding his election. The term of office of

the Governor and of other executive officers shall be computed from the fifteenth

of January next after the election of the Governor. No appointment or election tofill a vacancy shall be made for a period extending beyond the unexpired term.

Every officer shall hold his office until his successor is elected or appointed, and


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qualified. No special election shall be held to fill a vacancy in the office of Judge

or District Attorney, but at the time herein fixed for the biennial election of civilofficers; and such vacancy shall be filled at the next Biennial election recurring

more than thirty days after the vacancy occurs. [Emphasis added.]

It therefore should be obvious to a non-lawyer as well as a lawyer that as a result of thetext of the Constitution, Article VII, Section 4 does not grant to the Legislature any power to

determine the manner of an election since it is otherwise provided in the Constitution

under Article VII, Section 5, as the manner of choosing judges must be by an election

both for the full term and when a vacancy occurs. See Article VI, Sections 3 and 4.

Therefore, contrary to the opinion of the Attorney General, the Constitution gives the

Legislature no power under Article VII, Section 4 to pass a law, Tenn. Code Ann. 17-4-101

et seq., changing the manner in which judges are put on the bench. Consequently, the

Legislature cannot empower the Governor to appoint regular judges, as the Constitution

specifically reserves to the qualified voters the power to elect all the judges that judge their

cases under Article VI, Sections 3 and 4 and Article VII, Section 5.

The only exceptions to that constitutional mandate is that the Legislature, under Article

VI, Section 11, (a) may by general laws make provision that special judges may be appointed

to hold any courts the judges of which shall be unable to or fail to attend [Emphasis added] and

where (b) the Governor, under Article VI, Section 11, may appoint members of the Special

Supreme Court when the members of the regular Supreme Court are disqualified, as you did,

Governor, in theHooker v. Haslam case now pending.

Likewise, as you know, Governor, under Article III, Section 2, it is provided that the

Governor shall be chosen by the electors of the members of the General Assembly at the

time and place where they shall respectfully vote for the members thereof, and any vacancy

in the Governors office shall be filled in accordance with Article III, Section 12, which provides

in the event of death or resignation the powers and duties of the office shall devolve on the

Speaker of the Senate.

Furthermore, the Legislators of Tennessee must be elected (chosen) in accordance

with Article I, Section 3 for the full term, and when a vacancy occurs, Article II, Section 15

specifically provides how the vacancy shall be filled.


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Consequently, Article VII, Section 4 is not applicable to the election of the Governor,

the Legislators, or the judges of Tennessee, nor is it applicable to the manner in which

vacancies are filled, as the Constitution provides specifically for the manner in which the

Governor, the Legislators, and judges are put into office under the aforesaid provisions for

the full term and for any unexpired term.

Therefore, the statement by the Attorney General to the contrary is in blatant disregard

of the Constitution, as the Attorney General opines:

The Tennessee Constitution, Article VII, Section 4, specifies that: the

election of all officers, and filling of all vacancies not otherwise directed or

provided by this Constitution, shall be made in such manner as the

Legislature shall direct. With regard to judicial vacancies, the Constitution

provides in Article VII, Section 5 for the dates on which judicial elections shall be

held, but otherwise the Constitution is silent on how to fill judicial vacancies.Accordingly, under the general delegation of authority contained in Article

VII, Section 4, the General Assembly is charged with maintaining the

continuous and efficient operation of Tennessees judicial branch providing a

mechanism for the filling of all [judicial] vacancies. [Emphasis added.]

That statement by the Attorney General is either borne of negligent disregard of the

aforesaid provisions or is a blatant attempt to intentionally misstate the facts and what the

Constitution provides. I say that as there is no other reasonable explanation. Moreover, I make

that statement in the light of the fact that the Attorney General made another colossal

misstatement of fact in the case ofHooker v. Haslam, wherein he filed papers claiming It

should be noted that the words choose or chosen are not used anywhere in the

Tennessee Constitution but have simply been read into the Constitution by Mr. Hooker.

[Emphasis added.]

In that regard, I wrote a letter to the Attorney General, and asked him to send you a copy

of it, pointing out that that claim is preposterous in that the Governor of Tennessee is chosen

by the People under Article III, Section 2, as is every person who is not appointed under

Article X, Section 1, which provides, Every person who shall be chosen or appointed . . .

[Emphasis added.] Attached hereto is a copy of my reply to the Attorney Generals false claims

he made in a previous filing in theHooker v. Haslam case.

Now, the Attorney General has done it again! The Attorney General makes anotherfalse

claim and claims in his opinion that Article VII, Section 4 gives the Legislature the power to


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determine the manner of election of all judges. However, that claim is in direct violation of

Article VII, Section 5, which specifically requires that vacancies be filled by an election. His

claim that Article VII, Section 5 is silent on how fill to judicial vacancies is a bazaar

misstatement of the obvious facts, for which the Attorney General owes you and all who read his

opinion an apology. Otherwise, it will reflect on his competence to hold the high office which he

holds.

Consequently, this lawyer has no choice but to so inform the Court inHooker v. Haslam,

as the Attorney Generals opinion must be challenged, and you Sir should join with me in the

challenge because if the Legislature has the power to change the manner in which judges

are chosen under Article VII, Section 4, then the Legislature likewise has the power to

change the manner in which the Governor and Legislators are also chosen under Article

VII, Section 4.

I am going to attempt to file the Attorney Generals opinion with the Special Supreme

Court in the Hooker v. Haslam case because the Attorney Generals opinion is relevant to that

case and has been issued while the case is pending and has been reported in the press, and the

judges in that case may have the right to take judicial notice of it.

Sir, I am writing you this letter because you possess the supreme executive power of

this state, and I am therefore asking you, as an ordinary citizen and as a qualified voter on

behalf of myself and all other qualified voters, under youroath to support the Constitution, to

advise the Special Supreme Court in the case now pending that the opinion by the Attorney

General claiming that Article VII, Section 4, empowers the Legislature to provide for the

appointment of judges is just plain wrong, as otherwise the Constitution may continue to be

violated on your watch.

The unpleasant fact is that we now have a constitutional crisis in Tennessee because the

regular judges of the appellate courts of Tennessee have been appointed by the Governor both

for the full terms and for all unexpired terms for many years, which the Legislature has

addressed by passing a resolution, SJR2 of the 108th

General Assembly, authorizing an

amendment to the Constitution for the purpose ofconstitutionalizing retention elections.

However, Governor, you know that the Constitution mandates an election in August of

2014 for all the judges of the state, prior to the November vote on the constitutional amendment,


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and therefore, I am asking you to advise the Special Supreme Court in the case ofHooker v.

Haslam that the retention election statute, Tenn. Code Ann. 17-4-101 et seq., under which those

elections shall be held, is unconstitutional because it provides for the appointment of judges by

the Governor in direct violation of the right of the qualified voters to elect all regular judges

under Article VI, Sections 3 and 4 and Article VII, Section 5.

Consequently, Judge Bivins, who is likewise a defendant in the Hooker v. Haslam case,

was unlawfully appointed to fill a vacancy and was therefore unlawfully retention elected by

the qualified voters of the state. Moreover, Judge Bivins was unlawfully elected by the

qualified voters of the state in violation of Article VI, Section 4, which requires an election by

the qualified voters of the District only.

In addition, or in the alternative, I, as a qualified voter, on behalf of myself and all other

qualified voters who desire to elect their judges, am asking you, under your oath to support the

Constitution as Governor, to introduce a bill in the Legislature to repeal the retention election

statute, Tenn. Code Ann. 17-4-101 et seq., presently on the books because, for the aforesaid

reasons, it is blatantly unconstitutional and that fact must be acknowledged by all those who

honor the Constitution prior to the August 2014 election. Otherwise, all who condone

depriving the People of their constitutional right to elect all regular judges will be a part of

the conspiracy to condonethe big lie that is inherent to the retention election statute.

Governor, I have considerable respect for you as a consequence of the high opinion in

which you are held by many of our mutual friends. However, I feel compelled, here in the

twilight of my life, to do what I can to support the Constitution that as a lawyer I swore to

uphold. Therefore, respectfully, I am asking you, as Governor, to liberate the People of this

state from the tyranny that results from unconstitutionally appointed judges who are

thereafter unconstitutionally elected in a retention election that deprives the People of their

constitutional right to choose the judges who judge them.

God Bless,

s/John Jay Hooker


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In The Special Supreme Court of Tennessee