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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 General’s 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.
____________________________ JOHN JAY HOOKER, BPR #005118 115 Woodmont Blvd. Nashville, Tennessee 37205 Phone (615) 269-6558 Cell (615) 479-6531 Fax (615) 383-6036 firstname.lastname@example.org 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 General Public Interest Division Office of the Attorney General P.O. Box 20207 Nashville, Tennessee 37202 William A Blue, Jr. Constangy, Brooks, and Smith, LLP 401 Commerce Street, Suite 700 Nashville, Tennessee 37219 Jacqueline B. Dixon Allan F. Ramsaur Tennessee Bar Association Tennessee Bar Center 221 4th Avenue North, Suite 400 Nashville, TN 37219-2198 Patricia Head Moskal Edmund S. Sauer Bradley Arant Boult Cummings, LLP 1600 Division Street, Suite 700 P.O. Box 340025 Nashville, TN 37203
Attorney General Robert Cooper, Jr. Attorney General for the State of Tennessee P.O. Box 20207 Nashville, TN 37202 On this the 15th day of October 2013. ________________________ John Jay Hooker
JOHN JAY HOOKER 115 Woodmont Blvd. Nashville, TN 37205 Phone (615) 269-6558 Cell (615) 479-6531 Fax (615) 383-6036 email@example.com
October 14, 2013 Governor Bill Haslam Tennessee State Capitol Governor’s Office, First Floor Nashville, Tennessee 37243 RE: Attorney General’s 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 otherwise directed 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 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 of 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 4
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 civil officers; 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 the text 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 the Hooker 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 Governor’s 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.
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 Tennessee’s 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 of Hooker 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 General’s false claims he made in a previous filing in the Hooker v. Haslam case. Now, the Attorney General has done it again! The Attorney General makes another false claim and claims in his opinion that Article VII, Section 4 gives the Legislature the “power” to 6
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 in Hooker v. Haslam, as the Attorney General’s 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 General’s opinion with the Special Supreme Court in the Hooker v. Haslam case because the Attorney General’s 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 your oath 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 of constitutionalizing 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, 7
and therefore, I am asking you to advise the Special Supreme Court in the case of Hooker 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 “condone the 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