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IN THE CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE

AT NASHVILLE
JOl-iN JAY HOOKER, WALTER )
BRUMIT, and ANTHONY GOTTLIEB, )
)
Plaintiffs, )
)
v. ) No. l3C-S012
)
L T. GOVERNOR RON RAMSEY, )
HOUSE SPEAKER BETH HARWELL, )
HON. ROBERT L. JONES, MICHAEL E. )
T ANT, CHRISTOPHER CLEM, )
HENRIETTA GRANT, J. GREGORY )
GRlSHAM, HON. ROBERT )
MONTGOMERY, JR., HON. 1. MICHAEL)
SHARP, RENATA SOTO, JOSEPH A. )
WOODRUFF, DA VrD HAINES, )
SECRETAR Y OF STATE TRE HARGETT,)
GOVERNOR BILL HASLAM, and )
ATTORNEY GENERAL ROBERT E. )
COOPER, JR., )
)
Defendants. )
DEFENDANTS' MOTION TO DISMISS
--------------------- ------- ---
Come the Defendants, Governor Bill Haslam; Lt. Governor Ron Ramsey; House Speaker
Beth Harwell; Secretary of State Tre Hargett; Attorney General and Reporter Robert E. Cooper,
Jr.; Hon. Robert L. Jones; Michael E. Tant; Christopher Clem; Henrietta Grant: J Gregory
Gnsham; Hon. Robert Montgomery, Jr.; Hon. 1. Michael Sharp; Renata Soto; Joseph t ..
Woodruff; and David Haines, by and through their counsel of record, the Attorney General and
Reporter for the State of Tennessee, and hereby respectfully move this Court to dismiss
Plaintiffs' Amended Apphcation for a Declaratory Judgment and an Injunction for lack of
subject matter jurisdiction pursuant to Tenn. R. Civ. P. 12.02(1), as Plaintiffs lack the requisite
standing ~ bring this cause of action and their claims for declaratory relief are batTed by
sovereign immunity, res judicata and/or stare decisis.
This motion is supported by an accompanying memorandum of law.
Respectfully submitted,
ROBERT E. COOPER, JR.
Attorney General and Reporter
D puty Attorney General
ublic Interest Division
Office of Attorney General
P.O. Box 20207
Nashville, TN 37202
(615) 741-7403
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion has been sent by first class U.S. Mail,
postage prepaid, to:
John Jay Hooker
115 WoodmontBlvd.
Nashville, TN 37205
Walter Bmmit
30 East Dale Court
Greeneville, TN 37745
Anthony Gottlieb
P.O. Box 1770
Hendersonville, TN 37077
it
This 3
u
day of December, 2013.
ET M. KLEINFEL TEf()
Duty Attomey General
NOTICE OF HEARlNG
THIS MOTION HAS BEEN SET TO BE H ~ ON THE COURT'S REGULAR
MOTION DOCKET ON FRIDAY. THE 11 - DAY OF ..::li","-'bC U . 20 14 AT
9:00 A.M. .
IF NO RESPONSE IS TIMELY FILED AND SERVED, THE MOTION SHALL BE
GRANTED AND COUNSEL OR PRO SE LITIGANT NEED NOT APPEAR IN COURT
AT THE TIME AND DATE SCHEDULED FOR THE HEARING. See Rule 26.04(1) of the
Davidson County Local Rules of Practice.
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IN THE CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE
AT NASHVILLE
JOHN JAY HOOKER, WALTER )
BRUMIT, and ANTHONY GOTTLIEB, )
)
Plaintiffs, )
)
v. ) No. 13C-5012
)
LT. GOVERl"JOR RON RAMSEY, )
HOUSE SPEAKER BETH HARWELL, )
HON. ROBERT L. JONES, MICHAEL E. )
T ANT, CHRISTOPHER CLEM, )
HENRIETTA GRANT, J. GREGORY )
GRISHAM, HON. ROBERT )
MONTGOMERY, JR., HON. 1. MICHAEL)
SHARP, RENATA SOTO, JOSEPH A. )
WOODRUFF, DAVID HAINES, )
SECRETARY OF STATE TRE HARGETT,)
GOVERl'-JOR BILL HASLAM, and )
ATTORNEY GENERAL ROBERT E. )
COOPER, JR., )
)
Defendants. )
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS' MOTION TO DISMISS
-------- - - - - . - - - - - ~ ~ - - . ~ - , ~ - - - - - - --._ ------ _ ._--
Comc the Defendants, Governor Bill Haslam; Lt. Governor Ron Ramsey;' House Speaker
Beth Harwell; Secretary of State Tre Hargett; Attorney General and Reporter Robert E. Cooper,
Jr.:. Hon, Robert L. Jones; Michael E. Tant; Christopher Clem; Henrietta Grant; 1. Gregory
Grisham; Hon. Robert Montgomery, Jr.; Hon. 1. Michael Sharp; Renata Soto; Joseph A.
Woodruff; and David Haines, by and through their counsel of record, the Attorney General and
Reporier for the State of Tennessee, and hereby submit this Memorandum of Law in s'upport of
their Motion to Dismiss Plaintiffs' Amended Application for a Declaratory Judgment and an
Injunction for lack of subject matter jurisdiction pursuant to Tenn. R. Civ. P. 12.02(1).
INTRODUCTION
This action arIses out of a meeting held by the Judicial Performance Evaluation
Commission ('the Commission") on December 6, 2014. Plaintiffs Hooker and Brumit appeared
at that meeting and sought to address the members of the COnmllssion, but such request was
denied. Thereafter, on December 9, 2013, Plaintiffs filed this action against the members of the
Commission, the Governor, Lt. Governor, House Speaker, Secretary of State and Attorney
General, all in their official capacities, requesting declaratory and injunctive relief. Plaintiffs
subsequently filed an Amended Application on December 19, 2013.
Plaintiff Hooker has identified himself as "twice the Democratic nominee for Governor"
and has brought this suit "on behalf of himself and all other qualified voters and potential
candidates for any appellate judgeship in 2014." See Amended Application. Plaintiff Brumit has
identified himself as a Republican and has brought this suit "on behalf of himself and all other
qualified voters, and others seeking to be heard before the JudiCIal Performance Evaluation
Commission." Id. Plaintiff Gottlieb has identified himself as an Independent Voter and has
brought this suit "on behalf of himself and all other qualified voters and others seeking to be
heard before the Judicial Performance Evaluation Commission." Id.
In their Amended Application, Plaintiffs seek the following relief "on behalf of
themselves and all other qualified voters":
e A Declaratory Judgment determining that the Commission
is improperly constituted, in violation of aforesaid
requirements involving race and gender.
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.. An injunction enjoining further actions or discussions by
the Commission and its members until the Commission is
properly appointed.
An injunction enjoining all further acts by the Commission,
until the General Assembly has approved Supreme Court
Rule 27, establishing the Judicial Performance Evaluation
Commission and declaring all actions taken by the
Commission are void and that the Commission cannot
operate until Rule 27 is approved.
.. A declaration that the Retention Election Statute is
unconstitutional as it provides for the appointment of
judges by the Governor to take effect in situations where
sitting judges do not seek reelection, in violation of Article
VII, 4 and 5.
A declaration that all qualified voters and litigants with
grievances against any Judge subject to Retention Election
be permitted to be heard by the Commission, to challenge
the conduct of any Judge under Article I, 23 and Supreme
Court Rule 27, Section 2.
An order requiring each of the Defendants to declare and
disclose through the Attorney General whether each of the
Defendants claim that the Retention Election Statute is
constitutional or unconstitutional.
Amended Application at p. 5-6.
ARGUMENT
Plaintiffs clearly lack the requisite standing to bring this cause of action, either on their
own behalf or on behalf of all "qualified voters." Additionally Plaintiffs' claims for declaratory
relief are either barred by the doctrines of sovereign immunity, res judicata, and/or stare decisis.
Arcordingly, Plaintiffs' Amended Application should be dismissed for lack of subject matter
jU.tisdiction pursuant to Tenn. R. Civ. P. 12.02(1).
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1. Plaintiffs lack standing to bring this cause of action.
In American Civil Liberties Union of Tennessee v. Darnell, 195 S.W. 3d 612 (Tenn.
2006), the Tennessee Supreme Court clearly spelled out the elements a plaintiff must show in
order to esta.blish standing. In that matter, the plaintiffs contested the inclusion on the 2006
gubernatorial ballot of the "Marriage Amendment," which, in essence, limited the definition of
marriage in the State of Tennessee to being only between a man and a woman. The trial court
denied the plaintiffs' request for declaratory and injunctive relief and dismissed the plaintiffs'
complaint. Although the Tennessee Supreme Court granted the plaintiffs' motion to assume
over the matter, the Tennessee Supreme Court declined to reach the merits of the
case. lnstead, the Court found that the plaintiffs did not have standing and dismissed the case.
In doing so, as a threshhold issue, the Tennessee Supreme Court stated, "Courts employ the
doctrine of standing to determine whether a particular litigant is entitled to have a court decide
the merits ofa dispute or of particular issues." Darnell, 195 S.W.3d at 619 (citations omitted).
The Tennessee Supreme Court further stated:
Grounded upon "concern about the proper-and properly
limited-role of the courts in a democratic society," Warth [v.
Seldin], 422 U.S. [490,J 498 [(1975)], the doctrine of standing
precludes courts from adjudicating an action at the instance of one
whose rights have not been invaded or infringed." Mayhew v.
Wilder, 46 S.W.3d 760, 767 (Tenn.Ct.App.2001), perm. app.
denied (Tenn. April 30, 2001).
* * *
The doctrine of standing restricts "[t]he exercise of judicial power,
which can so profoundly affect the lives, liberty, and property of
those to whom it extends, ... to litigants who can show 'injury in
fact' resulting from the action which they seek to have the court
adjudicate." Valley Forge Christian College v. Americans United
for Separation of Church & State, Inc. 454 U.S. 464, 473, 102
S.Ct. 752, 70 L.Ed.2d 700 (1982). Without limitations such as
standing and other closely related doctrines "the courts would be
called upon to decide abstract questions of wide public
significance even though other governmental institutions may be
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!d. at 61 C)-620.
more competent to address the questions and even though judicial
intervention may be unnecessary to protect individual rights."
Warth, 422 U.S. at 500.
In Darnell, the Tennessee Supreme Court held that, to establish standing, a plainl1ff must
show three "indispensable" elements "'by the same degree of evidence' as other matters on
which the plaintiff bears the burden of proof." 195 S.W. 3d at 620 (emphasis added), citin!S
Petty v. DaimleriChlysler Corp., 91 S.W. 3d 765, 767 (Tenn. Ct. App. 2002), perm. app. de71led
(Tenn. 2002). The first essential element required to establish standing is that plaintiffs must
show a distinct and palpable injury, with conjectural or hypothetical injuries being insufficient.
Darnell, 195 S. W.3d at 620. 'The second essential element is a causal connp.ction between the
alleged injury and the challenged conduct. ld. The third essential element is a showing that the
"alleged injury is capable of being redressed by a favorable decision of the court." ld. The court
in Darnell further notes:
Specifically, courts should inquire: Is the injury too abstract, or
otherwise not appropriate, to be considered judicially cognizable?
Is the line of causation between the illegal conduct and injury too
attenuated? Is the prospect of obtaining relief from the injury as a
result of a favorable ruling too speculative? Allen v. Wright 468
U.S. 737, 752,104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
195 S.W. 3d at 620-21.
The Court of Appeals recently summarized the elements of standing within the context of
a declaratory judgment action, stating:
The doctrines of justiciability, including standing, ripeness, and the
prohibition against advisory opinions guide the courts in deciding
whether a particular action presents a legal controversy. Norma
Faye Pyles Lynch Family Purpose LLC v. Putnam County, 301
S.W.3d 196, 203 (Tenn.2009)(citing compare 13 Charles Alan
Wright, Arthur R. Miller, Edward H. Cooper & Richard D. Freer,
Federal Practice and Procedure 3529, at 612 (3d ed.2008) ... ,
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with Barbara Kritchevsky, Justiciability in Tennessee, Part One:
Principles and Limits, 15 Mem. St. U:L.Rev. 1,3 n. 5 (1984)). It is
well-settled that the role of the court is to adjudicate and settle
legal rights, not to give abstract or advisory opinions. Id. (citations
omitted). A matter qualifies as a "legal controversy" when and if
there exists a real and disputed issue. ld. Theoretical or abstract
questions do not constitute a legal controversy. ld. Rather, there
must be a real dispute "between parties with real and adverse
interests." Id. The determination of whether a matter is ripe for
involves a determination of" 'whether the harm asserted
has matured sufficiently to warrant judicial intervention [ .] ",
American Civil Liberties Union of Tennessee v. Darnell, 195
S.W.3d 612, 620 n. 7 (Tenn.2006) (quoting Warth v. Seldin, 422
U.S. 490,499 n. 10,95 S.Ct. 2197,45 L.Ed.2d 343 (1975)).
***
The doctrine of standing is used by the court to determine whether
a plaintitI is "properly situated to prosecute the action." Marceaux
v. Sundquist, 107 S.W.3d 527, 531 (Tenn.Ct.App.2002) (quoting
Krlierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976)). In
order to establish standing, a party must demonstrate (1) that it has
suffered an injury which is "distinct and palpable," (2) a causal
connection between that injury and the conduct complained of, and
(3) "that a favorable decision will redress that injury." Id. (citations
omitted). "These elements are indispensable to the plaintiffs
case[.]" ld.
Thomas v. Shelby County, W2010-01472-COA-R3CV, 2011 WL 3558171, *3 (Tenn. Ct. App.
Aug. 12, 2011),perm. app. denied (Tenn. Dec. 13,2011).
Here, the only injury Plaintiffs have alleged is that the law-specifically, Tenn. Code
Ann. 16-3-404, 17-4-201(a)(1), and Art. VII, 4 and 5, of the Tennessee Constitution-are
not being followed with respect to the election and evaluation of appellate court judges in
Tennessee. This injury is one that is common to all qualified voters-as specifically
ackT10wledged by Plaintiffs in their Amended Application. However, the Tennessee Supreme
COlUi has quite plainly held that a plaintiff claiming only harm to his and every citizen' s
in proper application of the Constitution and laws, has not demonstrated an injury sufficient to
establish standing.
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Standing also may not be predicated upon an injury to an interest
that the plaintiff shares in conunon with all other citizens. Mayhew,
46 S.W.3d at 767. Were such injuries sufficient to confer standing,
the State would be required to defend against "a profusion of
lawsuits" from taxpayers, and a purpose of the standing doctrine
would be frustrated.
Darnell, 195 S.W.3d at 620. See also City of Memphis v. Hargett, -- S.W.3d--, 2013 WL
5655807, at *7 (Tenn. Oct. 17, 2013) (citing Darnell) ; Mayhew v. Wilder, 46 S.W.3d 760, 768
(Tenn. Ct App. 2001) (holding that in order to establish standing injury must be distinct from an
injury shared by the public at large). Here, Plaintiffs' interest in seeing that judges for the
e n n e s s ~ e appellate courts are elected and evaluated in accordance with the Tennessee
Constitution and state law is the same interest of the public-at-large and, therefore, does not give
rise to the kind of redress able personal injury required for standing.
Accordingly, Plaintiffs have failed to establish the standing necessary to pursue their
claims for declaratory and injunctive relief and their Amended Application should be dismissed
for lack of subject matter jurisdiction.
II. Plaintiffs' claims for declaratory relief are barred by the doctrine of soverrign
immunity.
The !Ule of sovereign immunity in Telmessee is both constitutional and statutory. Article
I, Section 17 of the Tennessee Constitution provides in part that U[s]uits may be brought against
the State in such a manner and in such courts as the Legislature may by law direct." Tennessee
courts have interpreted this section as a grant of sovereign immunity to the State, and,
accordingly, no suit against the State may be sustained absent express authorization from the
Legislature. See Spencer v. Cardwell, 937 S. W.2d 422, 423 (Tenn. Ct. App. 1996) (citing
Coffman lJ. City of Pulaski, 422 S. W.2d 429 (1967)). The constitutional prohibition found in
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I
Article I, Section 17 has been codified by the Legislature in Tenn. Code Ann. 20-l3-1 02(a),
which provides as follows:
No court in the state shall have any power, jurisdiction, or
authority to entertain any suit against the state, or against any
officer of the state acting by authority of the state, with a view to
reach the state, its treasury, funds, or property, and all such suits
shall be dismissed as to the state or such officers, on motion, plea,
or demurrer of the law officer of the state, or counsel employed for
the state.
Pursuant to these constitutional and statutory provisions, no suit against the State of
Tennessee may be sustained absent express authorization from the Tennessee Legislature. See
:Jreenhdl v. Carpenter, 718 S.W.2d 268, 270 (Tenn'. Ct. App. 1986). Moreover, this Court has
expressly held that any such legislation authorizing suit against the State, being in derogation of
the State's inherent exemption from suit,
must strictly pursue the constitutional requirements, and be so
plain, clear and urunistakable in its provisions as to the manner and
form in which suits may be brought as to leave nothing to surmise
or conjecture.
State ex ref. Allen v. Cook, 106 S.W.2d 858, 869 (1937). See also Hill v. Beeler, 286 S.W.2d
868, 87J (Tenn. 1956) (any statute permitting suit against the State under Article I, Section 17 of
the Constitution of Tennessee must be strictly construed and the jurisdiction cannot be enlarged
by implication); Stokes v. University o/Tennessee, 737 S.W.2d 545, 546 (Tenn. Ct. App 1987),
cert. denied, 485 U.S. 935 (1988).
In Hill v. Beeler, this Court interpreted Tenn. Code Ann. 20-l3-102 (the statutory
codifIcation of sovereign inununity) as prohibiting Tennessee courts from entertaining a
declaratory judgment action against a State officer:
The Declaratory Judgment Act [Tenn. Code Ann. 29-14-101 -
113] does not permit the filing of a suit against the State to
c.onstrue statutes so it seems to us that there is no authority for the
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suit but that [Tenn. Code Ann. 20-13-102] expressly forbids such
an action.
286 S.W.2d 868, 871 (Tenn. 1956). This rule, as announced in Hill, has been repeatedly
affirmed by Tennessee appellate courts. See, e.g., Colonial Pipeline Co. v. Morgan, 263 S.W.3d
827, 853 (Tenn. 2008); L.L. Bean, Inc. v. Bracey, 817 S.W.2d 292, 297 (Tenn. 1991); Northern
Telecom, Inc. v. Taylor, 781 S.W.2d 837, 839 (Tenn. 1989), cert. denied, 496 U.S. 905 (J 990);
Fuller v. Campbell, 109 S.W.3d 737, 739 (Tenn. Ct. App. 2003); Spencer v. Cal'dwell, 937
S.W.!'d at 424; Carter v. McWherter, 859 S.W.2d 343, 345-46 (Tenn. Ct. App. 1993).
In Cnlonia! Pipeline, the Tennessee Supreme Court specifically addressed the interplay
between the doctrine of sovereign immunity and the Declaratory Judgment Act in the context of
subject matter jurisdiction. In doing so, this Court first noted that the concept of sovereign
immunity generally extends to State agencies and State officers acting in their official capacity.
263 S W.3d at 849. This Court further noted that the concept of sovereign mununity
encompasses both the principle of immunity from suit and the principle of inununity from
liability. In accordance with the first principle, "[s]overeign inununity is jurisdictional inununity
from suit" and "[t]he constitutionally guaranteed principle of state immunity acts as a
junsdictlOnal bar to an action against the state by precluding a court from exercising subject-
matter jurisdiction." Id. at 852.
TIlis Cowi then held that the Declaratory Judgment Act does not waive sovereign
immunity and that the only instance in which the Act .grants subject matter jurisdiction is in a suit
against state officials to prevent them from enforcing an allegedly unconstitutional statute. Jd. at
850-53. This ruling is consistent with the Court's reasoning in the prior case of Stockton v.
Jforris & Plerce, 110 S.W.2d 480 (1937):
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/d. at 850.
Essentially, an officer acting pursuant to an unconstitutional statute
does not act under the authority of the state; thus, the officer does
not enjoy the immunity that would normally be granted pursuant to
official authority. In other words, the officer loses immunity when
acting beyond the scope of the power of the State, and the power of
the State is limited by the state and federal constitutions. The issue
is not whether the State has waived sovereign immunity for this
specifIc classification of suit; sovereign immunity simply does not
attach.
Thus, Colonial Pipeline makes clear that the only time sovereign immunity does not bar a
suit again::>t a State agency or State officials for a declaratory judgment is when the suit seeks to
p r ~ v n t the enforcement of an unconstitutional statlite. ld. at 853 (finding the "Chancery Court
may iss'Je declaratory and injunctive relief against .the Defendants in their individual capacity, so
long as the court's judgment is tailored to prevent the implementation of unconstitutioilal
legislation and does not "reach the state, its treasury, funds or property"). Otherwise, the
. constitutionally guaranteed principle of sovereign immunity bars any suit against a State agency
.or State official to construe statutes under the Declaratory Judgment Act, even if the declaratory
relief requested does not seek to reach the State's treasury, funds, or property. See, e.g.,
Greenhill v. Carpenter, 718 S.W.2d 268, 272 (Tenn. Ct. App. 1986) (holding that Tenn. Code
Ann 20-13102(a) bars not only suits with a view to reach state funds, but also suits "with a
view to reach the state" itself).
In at.:cordance with these authorities, with the exception of the challengE; to the
CO'1stitutionality of the Retention Election Statute, Plaintiffs' various requests for declaratory
judgments are clearly barred by the doctrine of sovereign immunity and, therefore, should be
dismissed for lack of subject matter jurisdiction.
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III. Plaintiff Hooker's challenge to the constitutionality of the Retention Election
Statute is barred by the doctrine of res judicata.
Even if this Court finds that Plaintiff Hooker has the requisite standing, his challenge to
the constitutionality of the Retention Election Statutes is barred by the doctrine of res judicata.
The doctrine of res judicata is a claim-preclusion doctrine that promotes finality in litigation.
Young v. Barrow, 130 S. W.3d 59, 64 (Tenn. Ct. App. 2003). This judicial doctrine precludes "1
second suit between the same parties or their privies on the same cause of action with respect to
all the issues wluch were or could have been litigated in the former suit." Id. at 64 (emphasis
added). See also Gerber v Holcomb, 219 S.W.3d 914,918 (Tenn. Ct. App. 2006) ("The bar of
the judgment in such cases extends not only to matters actually determined, but also to other
matters which in the exercise of due diligence could have been presented for determination in the
prior action." (quoting Gaither Corp. v. Skinner, 85 S.E.2d 909, 911 (N.C. 1955)); Massengill v.
Scott, 738 S.W.2d 629, 631 (Tenn. 1987) (The doctrine of res judicata applies to bar not only
claims that have been litigated but 'also all claims that "could have been litigated in the former
suit."). The primary purposes of the doctrine are to promote finality in litigation, prevent
inconsistent or contradictory judgments, conserve legal resources, and protect litigants from the
cost and vexation of multiple lawsuits. Sweatt v. Tenn. Dept. of Carr., 88 S W.3d )67, 570
(Tenn. Ct. App. 2002); see also Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976)
("[R]es judicata is not based upon any presumption that the final judgment was right or just.
Rather it is justifiable on the broad grounds of public policy which requires an eventual end to
litigation."): Jordan v. Johns, 79 S.W.2d 798, 802 (Tenn. 1935) ("[P]ublic policy dictates Lhat
litigation should be determined with reasonable expedition, and not protracted through
inattentlOI:, lack of diligence on the part of litigants or their counsel."). In order for the doctrine
of re,<: judzcata to apply, it must be demonstrated that (1) a court of competent jurisdiction
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renderecl a prior judgment, (2) the prior judgment was final and on the merits, (3) both
proceedings involved the same parties or their privies, and (4) both proceedings involved the
same cause af action. Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990). All these
criteria are fully satisfied in this case.
A. A Court of competent jurisdiction rendered the judgment.
The first element is clearly met. The Special Supreme Court in State ex nl. Hooker v.
Thompson, 249 S.W.3d 331 (Tenn. 1996), and the Sixth Circuit Court of Appeals in Hooker v.
Anderson, 12 Fed.Appx. 323,2001 WL 700873 (6th CiT. 2001),1 have rendered prior judgments
on [vir. Hooker's challenge to the constitutionality of the Retention Election Statute.
B. The prior judgment was final and on the merits.
The Tennessee Supreme Court has stated that a judgment is final if it "resolves all the
issues in the case, 'leaving nothing else for the trial court to do. '" In re Estate of Ridley, 270
S W.3d 37, 40 (Tenn. 2008) (quoting In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn.
2003). IIere, there is no question but that the judgments in both of the above-cited cases were
final.
C. The same parties or their privies were involved in both proceedings.
Under the third element of res judicata, "the same parties, or their privies, [must] be
involved in both suits." Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Term.
1995). In the context of res judicata, Tennessee courts have rejected "privity" as defined in the
traditional sense: "Privity in the traditional sense meant mutual or successive relationship to the
same rights of property, but various states have employed other definitions when used in the
lThe Tennessee Supreme Court has recognized that decisions of federal courts are entitled to full faith Jnd
credit under Art. IV, I of the federal constitution and, therefore, are entitled to preclusi ve effect tor purposes of res
judicata. See Mullins v. State, 294 S.W.3d 529, 537, n.3 (Telm. 2009) (citing Whitsey v. Williamson County Bank
700 S.W.2d 561, 564 (Tenn. Ct. App. 1985.
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context of res judicata and collateral estoppel." Phillips v. Gen. Motors Corp., 669 S.W.2d 665,
669 (Tenn. Ct. App. 1984). See also Harris v. Sf. Mary's Med. Ctr., Inc., 726 S.W.2d 902,905
(Tenn. 1987) (holding that "[p ]rivity within the meaning of the doctrine of res judicata is privity
as it exists in relation to the subject matter of the litigation"); Carson v. Challenger Corp., No.
W2006-00558-COAR3-CV, 2007 WL 177575, at *3, n. 3 (Tenn. Ct. App. Jan. 25, 2007) (no
app. filed). Instead, Tennessee courts have recognized that in the context of res judicata, the
tenn "privity" does not denote relationships between the parties themselves, but rather concerns
a shared identity of interests relating to the subject matter of the litigation. Edwards v. City of
Memphis, No. W2007-02449-COA-R3-CV, 2009 WL 222622 at *4 (Tenn. Ct. App. July 27,
2009) (no app. filed). "In other words, privity is not established by parties being legally
connected, either by contract, blood or some other means, but rather whether they can claim the
same legal rights asserted to the subject matter." SunTrust Bank v. Stoner, No. 3:07-cv-397,
2009 WL 998403, at *2 (E.D. Tenn. April 14,2009) (citations omitted).
This element is also met. In all of his previous suits in state and federal court challenging
t h ~ constitutionality of the Retention Election Statutes, Plaintiff Hooker brought suit against
vanOllS state officials and judges in their official capacities. In an official-capacity suit, the real
party in interest is the government entity and not the named official. Will v. Michigan Dep't of
StoiC Police; 491 U.S. 58, 71 (1989) (stating an official-capacity lawsuit is "no ditIerent from a
suit against the State itself'). See also Bowden Bldg. Corp. v. Tennessee Real Estate Comm 'n,
15 S.W.3d 434, 438-39 (Tenn. Ct. App. 1999). Thus, though Plaintiff Hooker has in these
previous suits named various State officials as party defendants, privity exists h ~ r since all State
defendants have been named in their official capacities and the real and only defendant in
interest is the State of Tennessee.
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Accordingly, the same parties and/or their pnVies are clearly involved In b0th
proceedings and the third element of res judicata is met.
D. -Both proceedings- involve the same cause of action.
The fourth and final element of res judicata requires that both proceedings involve the
same cause of action. The Tennessee Supreme Court has adopted the "transactional" test
espousedoy the Restatement (Second) of Judgments for determining whether two proceedings
constitute the "same cause of action" for purposes of res judicata. See Creech v. Addington, ~ 1
S.W.3d 363, 379 (Tenn. 2009). Under this standard, "the concept of a transaction is ... used in
the broad sense" and "connotes a natural grouping or common nucleus of operative facts." Jd. at
380 (quoting Restatement (Second) of Judgments, 24 cmt. b)). The Restatement further
provides: "[ w ]hat factual grouping constitutes a 'transaction,' and what groupings constitute a
'sejes,' are to be determined pragmatically, giving weight to such considerations as whether the
facts are related in time, space, origin, or motivation, whether they form a convenient trial unit,
and whether their treatment as a unit conforms to the parties' expectations or business
understanding or usage." Restatement (Second) of Judgments 24(2). In adopting the
transactional standard, the Supreme Court concurred with the drafters of the Restatement that the
modem system of procedure
allows allegations to be made in general form and reads them
indulgently; it allows allegations to be mutually inconsistent
subject to the pleader's duty to be truthful. It permits considerable
freedom of anlendment and is willing to tolerate changes of
direction in the course of litigation ... , [Under the transactional
approach, tJhe law of res judicata now reflects the expectation that
parties who are given the capacity to present their "entire
controversies" shall in fact do so.
14
Creech v. Addington. 281 S.W.3d at 381 (quoting Restatement (Second) of Judgments 24
cmt.a). Two suits, therefore, shall be deemed the same "cause of action" for purposes' of res
jUdicata where they arise out of the same transaction or a series of connected transactions. Id
Under this transactional test, the fourth factor is also met in this case because all of
Plaintiff IIooker's lawsuits arise out of the same cause of action: Plaintiff H60ker's belief that
the ~ t e n t i o n Election Statutes for the selection and evaluation of Tennessee appellate judges,
codified at Tenn. Code Ann. 17-4-101, et seq., are unconstitutional and that any further
retention ekctions under those statutes should be enjoined.
The doctrine of res judicata:
mandates that if an action results in a judgment on the merits, that
Judgment operates as an absolute bar to any subsequent action on
the same cause between the same parties, with respect both to
every matter that was actually litigated in the first case, as well as
to every ground of recovery that might have been presented.
Black v. Ryder/P.l.E. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir. 1994) (emphasis added).
Plaintiff Hooker's lawsuit in state court in 1996 and in federal court in 2000 resulted in
final judgments on the merits as to the constitutionality of the Retention Election Statutes for the.
selection and evaluation of all appellate judges. Additionally, the issue Plaintiff Hooker has
raised here, i.e., that the Retention Election Statutes are unconstitutional because they allow for
the appointmept of judges by the Governor in situations where sitting judges do. not seek
reelection was specifically raised by Plaintiff in Hooker v. Anderson, 12 Fed. App'xat 326 afld
again in Johnson v. 8redesen, 2008 WL 701584, at *5 701584 (M.D. Tenn. Mar. 13, 2.008);
affirmed 356 FcC.. Appx. 781 (6th Cir. 2009). In both of these cases, the court rejected this
argwrent nndine that the "conclusion of the Higgins court that j.IJdici8.l retention elections pass
15
constitutional muster directs the outcome of this case even though the eight-year, rather than a
tvvo-year term is at issue." Id.
Accordingly, Plaintiff Hooker's challenge to the constitutionality of the Retention
Elee;tion Statutes is clearly barred by the doctrine of res judicata and, therefore, should be
dismissed.
IV. Plaintiffs Brumit and Gottlieb's challenge to the constitutionality of the Retentioll
Election Statute is barred by the doctrine of stare decisis.
Even if this Court finds that Plaintiffs Bnunit and Gottlieb have the requisIte standing,
their challenge to the constitutionality of the Retention Election Statutes is barred by the doctrine
of store decisis.
When there is a challenge to the constitutionality of a state statute, courts must begin with
the presumption that legislative acts are constitutional. State v. Pickett, 211 S.W.3d 696, 700
(Tenn. 2007) (citing Gallaher v. Elam, 104 S.W.2d 455,459 (Tenn 2003); State v. Robinson, 29
S.W.3d 476, 469 (Tenn. 2000); Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997). Thus, courts
are directed to '"indulge every presumption and resolve every doubt in favor of the statute's
constitutionality." Pickett, 211 S.W.3d at 780 (quoting State v. Taylor, 70 S.W.3d 717, 720-21
(Tenn. 2002). It is an "established rule of statutory construction that where one reasonable
interpretation would render a statute unconstitutional and another reasonable interpretation
would render it valid, courts are to choose the construction which validates the statute." Bailey
v County of Shelby, 188 S.W.3d 539, 547 (Tenn. 2006). Furthermore, when making a facial
challenge to a statute, a plaintiff must demonstrate that there are "no set of circumstances ...
under which the act would be valid." Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d
S20, 525 (Tenn. 1993) (quoting United States v. Salerno, 481 U.S. 739,745,107 S.Ct. 2095, 95
L.Ed.2d 697 (1987. Thus, in order to be found invalid, a statute must be plainly at odds with a
16
constitutional provision. Perry v. Lawrence County Election Comm 'n, 411 S.W.2d 538, 539
(T.;nn. 1967), and a "heavy burden" is placed on one who attacks a statute. Bailey, 188 S. W.3d
at 547; Tennessee ex reI. Maner v. Leech, 588 S.W.2d 534, 540 (Tenn. 1979). Furthermore, a.
challenge to a state's constitutionality does not give a court license to second-guess the General
Assembly's policy judgments, Draper v. Westerfield, 181 S.W.3d 283, 290 (Tenn. 2005), or to
inquire into the motives of the General Assembly. Cosmopolitan Life ins. Co. v. Northington,
300 S.W.3d 911, 918 (Tenn. 1957).
Under current Tennessee case law, the constitutionality of the Retention Election Statute
has twice been upheld by the Tennessee Supreme Court. See State ex rei. Higgins v Dunn, 496
S.W.2d 480, 487-90 (Tenn. 1973) and State ex rel. Hooker v. Thompson, 249 S.W.3d 331, 337-
38.(Tenn. ! 996). Plaintiffs have presented no reason compelling or otherwise to persuade tms
court that it should disturb the Supreme Court's. ruling in these two decisions and, therefore, this
court is bound by the decisions under the doctrine of stare decisis.
The doctrine or rule of stare decisis holds "that when a principle of law has been
established by a court of competent jurisdiction that then in that State where such rule is
established it becomes settled and binding upon the court[ s] of that State and should be followed
in simIlar cases." Staten v. State, 191 Tenn. 157, 159 (1950). The doctrine of stare decisis is
"one of commanding importance, giving, as it does, firmness and stability to principles of Jaw."
in re Estate of McFarland, 167 S.W.299, 305 (Tenn. 2005) (quoting J. T. Fargason Co. v. Ball,
128 Tenn. 137, 159 S.W. 221, 222 (1913)); Metro. Gov'f a/Nashville & Davidson County v.
Poe, 383 S.W.2d 265, 277 (Tenn. 1964). The doctrine of stare decisis promotes consistency by
adherence to settled principles of law recognized and followed i.n earlier cases. Staten v. State,
17
191 Tenn, at 159. Such stability in the law allows individuals to plan their affairs and to "safely
judge their legal rights." In re Estate a/McFarland, 167 S.W.3d at 305-306.
The rule of stare decisis is peculiarly applicable in the conslluction of written
constitutions.
A cardinal ru,1e in dealing with written instruments is that they are
to receive an unvarying interpretation, and that their practical
construction is to be unifonn. A constitution is not to be made to
mean one thing at one time, and another at some subsequent time,
when the circumstances may have so changed as perhaps to make a
different rule in the case seem desirable. A principal share of the
benefit expected from written constitutions would be lost, if the
rules they established were so flexible as to bend to circumstances
or be modified by public opinion.
McCulley,,. State (State Report Title: The Judges' Cases), 53 S.W. 134, 139-40 (Tenn. 1899)
{internal citations omitted). See also Barnes v. Walker, 234 S. W.2d 648, 650 (1950) ("The rule
[of stare decisis ] is even more rigidly followed with reference to decisions construinf;,'
c0nstitutionalprovisions and legislative enactments"); State v. Nashville Baseball Club.. 1.54
s. W 1151, J 154 (Tenn. 1913) ("DeCisions construing the Constitution or acts of the Legislature
should be followed, in the absence of cogent reasons to the contrary, inasmuch as it is of the
'uimost importance that our organic and statute law be of certain meaning and fixed
interpretation. ").
Stare: decisis admonishes courts not to overturn decisions in an arbitrary or cavalier
manner. Ferguson v. Ram Enterprises., Inc., 900 S.W.2d 19, 21 (Tenn. 1995); State v.
Kendricks, 891 S.W.2d 597, 603 (Tenn. 1994), and the Tennessee Supreme Court has recognized ..
that its power to oven-ule fonner decisions "is very sparingly exercised and only when the reason
is comprlling." Edingbourgh v. Sears, Ruebuck & Co., 337 S.W.2d 13, .14 (Tenn. 1960).
18
As previously discussed, the Tennessee Supreme Court in State ex reI. Higgins v. Dunn.
496 S.W.2d 480, 487-90 (Tenn. 1973), first addressed the issue of the constitutionality of
retention elections of appellate court judges and found that such elections are "not in conflict
with the provisions of the Constitution of our State." Three years later, the Special Supreme
~ o u r t uneqUivocally held that "the issue of whether yes/no retention elections violate the
Constitution of Tennessee has previously been decided by the Tennessee Supreme Court in the
csse of State ex reZ. Higgins v. Dunn and no compelling reason has been gi ven to persuade this
Court that it should disturb that ruling." State ex reZ. Hooker v. Thompson, 249 S.W.3d 331,
337-38 (Tenn. 1996) (citation omitted). Similarly, Plaintiffs have presented no compelling
reason for this Court to disturb the rulings in these two cases and unless and until these decisions
are overturned by the Supreme Court, this Court should follow them under the doctnne of stare
J .
ueClSlS
Additinnally, Defendants would note that, contrary to Plaintiffs' assertions, the issue of
c:onstitutio:lality of the Tennessee Plan under Article VII, 4 and. 5 ~ of the Tennessee
Constitution, is currently pending before the Special Supreme Court in the case of Hooker v.
Haslam, No. M2012-01299-:SC-RI1-CV. Thus, under the doctrine of prior suit pending and in
thf interests of judicial economy and to avoid the possibility of inconsistent rulings, this Court
should deny Plaintiffs' request for declaratory and injunctive relief as to the constitutionality of
ille Retention Election Statutes.
CONCLUSION
For these -reasons, the Defendants respectfully request that this Court grant 'their motion
to dismiss the Amended Application in its entirety and with prejudice.
~ ;
Respectfully submitted,
19
ROBERT E. COOPER, JR.
Attorney General and Reporter
- . tk. [j--
ET M.
D uty Attorney General
ublic Interest Division
Office of Attorney General
P.O. Box 20207
Nashville, TN 37202
(615)741-7403
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Memorandum has been sent by first class
US. Mad, postage prepaid, to:
John Jay Hooker
115 Woodmont Blvd.
Nashville, TN 37205
Walter Brwnit
30 East Dale Court
Greeneville, TN 37745
Anthony Gottlieb
P.O. Box 1770
Hendersonville, TN ' 37077
This3Qn. day of December, 2013
20
T M. KLEfNFEL TER