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Hooker v Haslam The 2nd of two lawsuits 1st Circuit Court Davidson County TN

Hooker v Haslam The 2nd of two lawsuits 1st Circuit Court Davidson County TN

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Published by John Jay Hooker
An application for declaratory judgment under Tenn. Code Ann. §29-14-101 et seq.
and injunctive relief under Tennessee Rules Civil Procedure, Rule 65, challenging the
constitutionality of Tenn. Code Ann. §17-4-101 et seq. as it relates to the Judicial
Nominating Commission filling the vacancy created by the retirement of Judge Cottrell
and any appointment by the Governor to fill the vacancy under the Act in accordance with
Tenn. Code Ann. §17-4-109, 112, 116, as such would be a violation of Article VI, Section 4
and Article VII, Sections 4 and 5 of the Tennessee Constitution, which require an election
by the qualified voters on August 7, 2014 for all judicial offices.
An application for declaratory judgment under Tenn. Code Ann. §29-14-101 et seq.
and injunctive relief under Tennessee Rules Civil Procedure, Rule 65, challenging the
constitutionality of Tenn. Code Ann. §17-4-101 et seq. as it relates to the Judicial
Nominating Commission filling the vacancy created by the retirement of Judge Cottrell
and any appointment by the Governor to fill the vacancy under the Act in accordance with
Tenn. Code Ann. §17-4-109, 112, 116, as such would be a violation of Article VI, Section 4
and Article VII, Sections 4 and 5 of the Tennessee Constitution, which require an election
by the qualified voters on August 7, 2014 for all judicial offices.

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Published by: John Jay Hooker on Jun 10, 2013
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06/04/2014

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IN THE CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE AT NASHVILLE JOHN JAY HOOKER, on behalf of himself, and ) all

other QUALIFIED VOTERS, and ) POTENTIAL CANDIDATES for the seat held by ) Intermediate Appellate Judge Cottrell, which seat ) will become vacant on September 1, 2014, ) contesting the nomination by the Judicial ) Nominating Commission and any appointment by ) the Governor of any person to fill said seat, claiming) that the retention election statute, T.C.A. 17-4-101 ) et seq. under which the gubernatorial appointment ) shall be made, including T.C.A. 17-4-116, is ) unconstitutional in violation of Article VI, ) Section 4 and Article VII, Sections 4, 5, ) ) Petitioner/Plaintiff/ ) Applicant for a Declaratory Judgment, ) ) v. ) ) GOVERNOR BILL HASLAM (Case No.#2), ) ATTORNEY TOM LAWLESS, ) Chairman of the Judicial Nominating Commission, ) ATTORNEY GENERAL ROBERT COOPER, JR., ) on behalf of the Attorney General’s Office, and ) on behalf of all respondents and all members of the ) Judicial Nominating Commission, and on behalf ) of all applicants seeking appointment to the Court ) of Appeals for the Middle District of Tennessee seat ) now occupied by Judge Cottrell, ) ) Respondents/Defendants. ) ) and, ) ) As a courtesy, the TENNESSEE BAR ) ASSOCIATION and the TENNESSEE BUSINESS ) ROUNDTABLE, who applied as amicus curiae in ) Hooker v. Haslam (Case #1). ) )

Case No. _______________

______________________________________________________________________________ APPLICATION ______________________________________________________________________________ 1 
 

An application for declaratory judgment under Tenn. Code Ann. §29-14-101 et seq. and injunctive relief under Tennessee Rules Civil Procedure, Rule 65, challenging the constitutionality of Tenn. Code Ann. §17-4-101 et seq. as it relates to the Judicial Nominating Commission filling the vacancy created by the retirement of Judge Cottrell and any appointment by the Governor to fill the vacancy under the Act in accordance with Tenn. Code Ann. §17-4-109, 112, 116, as such would be a violation of Article VI, Section 4 and Article VII, Sections 4 and 5 of the Tennessee Constitution, which require an election by the qualified voters on August 7, 2014 for all judicial offices. THE FACTS AND THE LAW The retention election statute was passed in 1971 and amended in 1974 and 1978 and 1994, which statute was thereafter sunset. The retention election statute applicable to this case was enacted in 2010 and was thereafter challenged in 2012 in the case of Hooker v. Haslam (Case #1) involving the election of Judge Bivins for an unexpired term. However, this case raises an issue of first impression and is a new challenge to the retention election statute regarding an “appointment” by the Governor to fill the vacancy that will occur as a consequence of the retirement of Judge Cottrell. Under the statute, Tenn. Code Ann. §17-4-116, the

Governor’s “appointment” will be to fill a vacancy until the next biennial election in 2016, whereas the Constitution provides that the vacancy created by Judge Cottrell’s retirement be filled by the qualified voters for the full eight-year term at the August 7, 2014 biennial election. This lawyer is qualified under the Tennessee Constitution and the statute to be a candidate for the seat now held by intermediate appellate Judge Cottrell of the Middle Section of the Court of Appeals and is a potential candidate for said office. Likewise, this lawyer is a registered voter in Davidson County, Tennessee entitled to vote in the 2014 election to fill the vacancy created by Judge Cottrell’s retirement. This case is brought by this lawyer and qualified voter who has “standing” under Article I, Section 1, 23 and Article XI, Section 16 to challenge the constitutionality of the retention election statute, Tenn. Code Ann. §17-4-101 et seq.,


 

claiming it is in violation of Article VI, Section 4, and Article VII, Section 5. The retention election statute, Tenn. Code Ann. §17-4-101 et seq., provides in pertinent parts: Section 109(a)(1) If a vacancy occurs during the term of office of a judge of the court of appeals or court of criminal appeals, then the judicial nominating commission shall, at the earliest practicable date, hold a public meeting in the grand division from which the vacancy is to be filled. However, if an incumbent judge fails to file a written declaration of candidacy required by § 17-4-114 or § 17-4-115, or if the commission is reliably informed that a vacancy is impending for another reason, then the public meeting may be held prior to the actual occurrence of the vacancy. (2) If a vacancy occurs during the term of office of a judge of the supreme court, then the judicial nominating commission shall, at the earliest practicable date, hold a public meeting in Nashville. However, if an incumbent judge fails to file a written declaration of candidacy as required by § 17-4-114 or § 17-4-115, or if the commission is reliably informed that a vacancy is impending for another reason, then the public meeting may be held prior to the actual occurrence of the vacancy. Section 112(a)(1) When a vacancy occurs in the office of an appellate court after July 1, 2009, by death, resignation or otherwise, the governor shall fill the vacancy by appointing one (1) of the three (3) persons nominated by the judicial nominating commission, or the governor may require the commission to submit one (1) other panel of three (3) additional nominees. Within sixty (60) days following receipt of the additional panel of nominees, the governor shall fill the vacancy by appointing any one (1) of the six (6) nominees certified by the commission. Section 116 If an incumbent appellate court judge, whether appointed or elected, fails to file a declaration of candidacy for election to an unexpired term or to a full eight-year term within the prescribed time, or if the judge withdraws as a candidate after receiving a recommendation "for retention" from the judicial performance evaluation commission and filing the required declaration of candidacy, then a vacancy is created in the office upon expiration of the incumbent's term effective September 1. In this event, the vacancy shall be filled by the governor in accordance with § 17-4-112 or § 17-4-113. The appointment is subject to the action of the electorate in the next regular August election. The appointee shall file a declaration of candidacy and be voted on as provided in § 17-4-114 and § 17-4-115.

Whereas, the Constitution provides in Article VI, Section 4: “The Judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which 3 
 

they are to be assigned. Every Judge of such Courts shall be thirty years of age, and shall before his election, have been a resident of the State for five years and of the circuit or district one year. His term of service shall be eight years.” 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 forever thereafter on the first Thursday in August next preceding the expiration of their respective 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 other executive officers shall be computed from the fifteenth of January next after the election of the governor. No appointment or election to fill 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 qualified. No special election shall be held to fill a vacancy in the office of judge or district attorney, but a the time herein fixed for the biennial election of civil officers, and such vacancy shall be filled at the next biennial election recurring more than thirty days after the vacancy occurs.

This lawsuit is brought by this Plaintiff, who is both a voter and a potential candidate, on behalf of himself and all others likewise situated who want to protect their right to vote under Article VI, Section 4 in the August 7, 2014 biennial election that provides for a choice because Article X, Section 1 requires that all judges be “chosen,” as there is no constitutional power to appoint a judge for either a full or unexpired term: “Every person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of this state, and of the United States, and an oath of office.”

This lawyer has a duty under the Attorney’s Oath to support the Constitutions “to the best of my skill and ability- so help me God.” The fact is that intermediate appellate Judge Cottrell from the Middle District and Judge Tipton from the Eastern District and Judge Highers from the Western District have all announced their retirement as of September 1, 2014, and 4 
 

therefore, there will be a vacancy in the seats occupied by those judges at the time of the August 7, 2014 election. As a consequence, Attorney Tom Lawless, as Chairman of the Judicial

Nominating Commission, has advised the press that the Commission will meet in all three sections and perform its responsibility under the statute, Tenn. Code Ann. §17-4-109(a), 112(a), 116, which provisions are set out above. However, this raises a serious question under the Act about whether or not the Judicial Nominating Commission can pick six judges from each section, for a total of eighteen judges, between now and June 30, 2013. Independently of whether the Act permits the Judicial Nominating Commission to pick eighteen judges between this day, June 11, 2013, and June 30, 2013, there is a conflict between the aforesaid statutory provisions and the aforesaid constitutional provisions, as the Constitution requires that the vacancy created by the retirement shall be filled by the qualified voters in the August 7, 2014 election for the full eight-year term, under Article VI, Section 4, and Article VII, Sections 5, whereas the statutes provide that the vacancy shall be filled by an “appointment” by the Governor on or after September 1, 2014 for a two-year term, and thereafter, under said statutes, there will be a retention election in August of 2016 to fill the remainder of the unexpired term. This conflict occasions this lawsuit brought to challenge the constitutionality of the retention election statute and specifically the aforesaid provisions set out above on the basis that this lawyer, sworn to uphold the Constitutions, has a duty under his oath as a lawyer, and a duty as a citizen/voter representing other voters, and as a potential candidate (under Article I, Sections 1 and 23, and Article XI, Section 16) representing other potential candidates, to challenge the constitutionality of the Act because the Act clearly violates the Constitution as the statute deprives the qualified voters of their constitutional right under Article VI, Section 4 and Article VII, Section 5 to elect and choose a judge (Article XI, Section 1) at the August 7, 2014 election 5 
 

to fill the vacancy created by the retirement of Judge Cottrell who serves as an intermediate appellate judge assigned to the Middle Section of the Court of Appeals. This lawyer and qualified voter, who has twice been the Democratic Nominee for Governor of Tennessee, wants to vote for an intermediate appellate judge who lives in the Middle District of Tennessee where there are more Democrats than Republicans and where the Democrats have a better political opportunity to elect a judge than if the judge is elected statewide under an unconstitutional act. Therefore on a constitutional basis, this potential

candidate/voter has the right to challenge the fact that the retention election statute provides for a statewide election of intermediate appellate judges when the Constitution provides that all intermediate appellate judges be elected by the qualified voters of the District. The definition of the word “District” is that it must be a political subdivision of the State. Therefore, the State as a whole is not a “District” under Article VI, Section 4. The issue regarding the statewide election of appellate judges is before the Court in Hooker v. Haslam (Case #1), which is set for oral argument on July 19, 2013. However, that case may be dismissed by this citizen/lawyer on the basis that this citizen/lawyer feels that the “impartiality” of the members of the Court “may reasonably be questioned” on the basis that the members of the Court have not disclosed all the facts known to themselves in response to the Motion to Recuse challenging their “impartiality,” as required by the law. THE CLAIM (1) The claim is that the retention election statute is unconstitutional because it provides for an appointment by the Governor, under Tenn. Code Ann. §17-4-116, to fill a vacancy that must be filled by the qualified voters of the District every eight years for the full term, as a part of the August 7, 2014 biennial election, in accordance with Article VI, Section 4 and Article VII, Section 5. 6 
 

(2) In addition, the claim is that the retention election statute is unconstitutional, in violation of Article VI, Section 4, because it deprives the voters of the various Districts of the exclusive right to elect the intermediate appellate judges who are “assigned” to hear the cases that originate from the three Grand Divisions, whereas the statute provides that all inferior court judges shall be elected by the qualified voters of the State under Tenn. Code Ann §17-4115(b)(1). Likewise, see Court of Appeals Rule 2 (Appendix). (3) Furthermore, because the statute is unconstitutional, the claim is that the Judicial Nominating Commission cannot nominate, and the Governor cannot appoint, any person to fill the vacancy created by the retirement of Judge Cottrell, as the vacancy must be filled by the qualified voters of the District on August 7, 2014. RELIEF (1) This litigant lawyers prays that the Court will declare that the retention election statute is unconstitutional because it provides for an unconstitutional appointment by the Governor, under Tenn. Code Ann. §17-4-116, to fill a judicial vacancy for an unexpired term when the Constitution requires an election to fill the vacancy for the full term that will occur on September 1, 2014, when said vacancy must be filled, in accordance with Article VI, Section 4, by the qualified voters of the Middle District of Tennessee at the August 7, 2014 biennial election; (2) This litigant lawyer prays that the Court will declare that the retention election statute is unconstitutional because it provides for a statewide election, Tenn. Code Ann. §17-4115(b)(1), for all intermediate appellate judges, as said judges are “inferior court judges” and the Constitution requires, under Article VI, Section 4, that said judges be elected by the qualified voters of the “district” where they have had a residence for one year and where they must be assigned; 7 
 

(3) This litigant lawyer prays that the Court will enjoin the Judicial Nominating Commission from nominating any candidate to fill the vacancy created by Judge Cottrell’s retirement under Tenn. Code Ann. §17-4-112(a), and/or enjoin Governor Haslam from appointing any nominee picked by the Commission to fill the vacancy created by the retirement of Judge Cottrell; and (4) This litigant lawyer prays for any further relief that the Court may deem appropriate under the circumstances.

Respectfully submitted,

____________________________ JOHN JAY HOOKER, BPR #005118 115 Woodmont Blvd. Nashville, Tennessee 37205 Phone (615) 269-6558 Cell (615) 479-6531 Fax (615) 383-6036 johnjayhooker@hpeprint.com


 

APPENDIX Tenn. Const. Art. I, § 1 That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper. Tenn. Const. Art. I, § 23 That the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address of remonstrance. Tenn. Const. Art. VI, § 4 The Judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned. Every Judge of such Courts shall be thirty years of age, and shall before his election, have been a resident of the State for five years and of the circuit or district one year. His term of service shall be eight years. Tenn. Const. Art. VII, §5 Elections for judicial and other civil officers shall be held on the first Thursday in August, one thousand eight hundred and seventy, and forever thereafter on the first Thursday in August next preceding the expiration of their respective 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 other executive officers shall be computed from the fifteenth of January next after the election of the governor. No appointment or election to fill 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 qualified. No special election shall be held to fill a vacancy in the office of judge or district attorney, but a the time herein fixed for the biennial election of civil officers, and such vacancy shall be filled at the next biennial election recurring more than thirty days after the vacancy occurs. Tenn. Const. Art. X, §1 Every person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of this state, and of the United States, and an oath of office.


 

Tenn. Const. Art. XI, § 1 All laws and ordinances now in force and use in this State, not inconsistent with this Constitution, shall continue in force and use until they shall expire, be altered or repealed by the Legislature; but ordinances contained in any former Constitution or schedule thereto are hereby abrogated. Tenn. Const. Art. XI, § 16 The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate. Tenn. Code Ann. §17-4-101 et seq. It is the declared purpose and intent of the general assembly by the passage of this chapter to: (1) Assist the governor in finding and appointing the best qualified persons available for service on the appellate courts of this state, and to assist the electorate of this state in electing the best qualified persons to the courts; (2) Better insulate the judges of the courts from political influence and pressure; (3) Improve the administration of justice; (4) Enhance the prestige of and respect for the courts by minimizing the necessity of political activities by appellate judges; and (5) Make the courts less political. Tenn. Code Ann. §17-4-109(a) (1)If a vacancy occurs during the term of office of a judge of the court of appeals or court of criminal appeals, then the judicial nominating commission shall, at the earliest practicable date, hold a public meeting in the grand division from which the vacancy is to be filled. However, if an incumbent judge fails to file a written declaration of candidacy required by § 17-4-114 or § 17-4-115, or if the commission is reliably informed that a vacancy is impending for another reason, then the public meeting may be held prior to the actual occurrence of the vacancy. (2) If a vacancy occurs during the term of office of a judge of the supreme court, then the judicial nominating commission shall, at the earliest practicable date, hold a public meeting in Nashville. However, if an incumbent judge fails to file a written declaration of candidacy as required by § 17-4-114 or § 17-4-115, or if the commission is reliably informed that a vacancy is impending for another reason, then the public meeting may be held prior to the actual occurrence of the vacancy. 10 
 

Tenn. Code Ann. §17-4-112(a) (1) When a vacancy occurs in the office of an appellate court after July 1, 2009, by death, resignation or otherwise, the governor shall fill the vacancy by appointing one (1) of the three (3) persons nominated by the judicial nominating commission, or the governor may require the commission to submit one (1) other panel of three (3) additional nominees. Within sixty (60) days following receipt of the additional panel of nominees, the governor shall fill the vacancy by appointing any one (1) of the six (6) nominees certified by the commission. (2) After receiving the commission's panel or panels of nominees, but prior to making an appointment pursuant to subdivision (a)(1), the governor shall direct the Tennessee bureau of investigation or other appropriate agencies to perform appropriate financial and criminal background investigations and inquiries of the prospective appointees, and the governor shall review and assess the results of the background investigations and inquiries. Tenn. Code Ann. §17-4-115(b)(1) If the declaration of candidacy is timely filed, only the name of the candidate, without party designation, shall be submitted to the electorate in this state in the regular August election. Each county election commission of the state shall cause the following to be placed on the ballot: ..................... Shall (Name of Candidate) be retained or replaced in office as a Judge of the (Name of the Court)? _____Retain OR _____Replace. ..................... Tenn. Code Ann. §17-4-116 If an incumbent appellate court judge, whether appointed or elected, fails to file a declaration of candidacy for election to an unexpired term or to a full eight-year term within the prescribed time, or if the judge withdraws as a candidate after receiving a recommendation "for retention" from the judicial performance evaluation commission and filing the required declaration of candidacy, then a vacancy is created in the office upon expiration of the incumbent's term effective September 1. In this event, the vacancy shall be filled by the governor in accordance with § 17-4-112 or § 17-4-113. The appointment is subject to the action of the electorate in the next regular August election. The appointee shall file a declaration of candidacy and be voted on as provided in § 17-4-114 and § 17-4-115.

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Tenn. Code Ann. §29-14-101 et seq. §29-14-102 (a) Courts of record within their respective jurisdictions have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. (b) No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. (c) The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree. Court of Appeals Rule 2(a) This Court shall be divided into three sections of four judges. Unless otherwise designated by order of the presiding judge, the four judges residing in East Tennessee shall compose the Eastern Section, sitting in Knoxville; the four judges residing in Middle Tennessee shall compose the Middle Section, sitting in Nashville; and the four judges residing in West Tennessee shall compose the Western Section, sitting in Jackson. Tenn. R. Civil. Proc., Rule 65.01 Injunctive relief may be obtained by (1) restraining order, (2) temporary injunction, or (3) permanent injunction in a final judgment. A restraining order shall only restrict the doing of an act. An injunction may restrict or mandatorily direct the doing of an act.

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