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BOARDOFJUDICIALCONDUCT

COMPLAINTAGAINSTTHEJUDICIALPERFORMANCEEVALUATIONCOMMISSION
[JPEC]JUDGESWHOUNLAWFULLYRECOMMENDEDACCORDINGTOTHE
DAVIDSONCOUNTYGRANDJURYFORRETENTIONELECTION
OFALLTHEAPPELLATEJUDGESSEEKINGEVALUATION
AND
ALLOFSAIDJUDGESWHOUNLAWFULLYFILEDDECLARATIONSOFCANDIDACY
BASEDONSAIDUNLAWFULRECOMMENDATIONSINVIOLATIONOFTCA174
201,SUPREMECOURTRULE27,CANON1ANDOTHERPROVISIONSOFTHECODE
OFJUDICIALCONDUCTANDTHEIROATHSOFOFFICE

JOHNJAYHOOKEREsq.
115WOODMONTBLVD
NASHVILLETN37215
Tel:6152696558
johnjayhooker@hpeprint.com

WALTERBRUMIT
30EastDaleCourt
GreenevilleTN37745
Tel:(423)8230157
Fax (866)3660043
waltbrumit@aol.com

ANTHONYGOTTLIEB
4108BrushHillRd
NashvilleTN37216
Tel: (615)8249439
Fax (615)2621006
tonygottlieb@aol.com

HOLLYSPANN
21VaughnsGap
Nashville,TN37205
Tel:(615)8122551
hollyspann@hotmail.com

We have information of judicial misconduct from the Davidson County Grand Jury and
otherwise regarding allthe judges seated on the Judicial Performance Evaluation Commission,
specifically the three Judges on the Commission; Hon. Robert L. Jones Columbia, TN (Chair),
theHon.RobertMontgomery,Jr.Blountville,TN,andtheHon.J.MichaelSharpCleveland,
TN. As members of the Tennessee Judicial Performance Evaluation Commission JPEC, they
violatedavalidCourtOrderissuedonJanuary15
th
,2014intheirmeetingonJanuary17
th
,2014.
AtthattimetheCommissiondeprivedthequalifiedvotersoftheStateoftheirlawfulrighttoa
racial and gender balance as required by the due process clauses and equal protection
clausesofboththeFederalandStateConstitutions.Likewise,theJudgesviolatedthelawwhen
they waived the requirements regarding racial and gender balance set out in TCA 174
201(b)(6) and Supreme Court Rule 27 Section 2.03. Furthermore, all five members of the
SupremeCourtviolatedSupremeCourtRule11whentheyfailedtorequiretheJPECtoreform
itselfinaccordancewiththelaw.

In addition, the 22 Judges who were recommended likewise well knew that those
recommendations were in violation of the law, under the aforesaid provisions, and
consequently,whensaidJudgesacceptedtherecommendationsfortheirownbenefit,which
2BOARDOFJUDICIALCONDUCT

likewise harmed the Voters, they thereby violated the official misconduct statute, TCA 39
16402whichaClassEFelony.

STATEMENTOFFACTS:Whenandwheredidthishappen?
Room30LegislativePlazaTennesseeGeneralAssembly
Date(s):Time:January17,2014

2. a) Whatisthenameandnumberofthecase?
FirstCircuitCourtDavidsonCounty
Hooker,Brumit,GottliebandSpannetalvs.Ramseyetal
CaseNo.13C5012

b) Whatkindofcaseisit?
Civil

c) Whatisyourrelationshiptothecase?Plaintiffs/QualifiedVoters

d) Ifyouwererepresentedbyanattorney(s)
Allcomplainantshereinactedprose

3. List of documents that help support your information that the judge or acting judge has
engagedinmisconductorhasadisability,notingwhichdocumentsyouhaveattached:
FirstCircuitCourt|JudgeHamiltonGayden,January15th2014FinalOrder,
OrderofJanuary24,2014ExcerptreportofDavidsonCountyGrandJury

4.Identify,ifyoucan,anyotherwitnessestotheconductofthejudgeoractingjudges:

JosephChristopherClem,Esq.
ShallowfordLawCtr.
130JordanDr.
Chattanooga,Tennessee
4238922006

J.GregoryGrisham,Esq.
JacksonLewisP.C.
999ShadyGroveRoad,Suite110
Memphis,TN38120
(901)4622600

Joseph"Woody"A.Woodruff
WallerLansdenDortch&Davis,LLP
511UnionStreet,Suite2700
Nashville,TN372191760
(615)2446380
DavidHaines
DavidHainesEsq.GeneralCounsel
AdministrativeOfficeoftheCourt
511UnionStreet6thFloor
Nashville,TN37219

DeputyAttorneyGeneralJanetKleinfelter
PublicInterestDivision
OfficeoftheAttorneyGeneral
P.O.Box20207
Nashville,TN37202

WilliamE.Young
AdministrativeOfficeoftheCourts
511UnionStreetSuite600
Nashville,TN37219
(615)7412687
3BOARDOFJUDICIALCONDUCT

AlsoinattendanceonJanuary17,2014duringtheJPECmeetingweretwoindividualsfromracial
minorities,thefemalelaypersonmembersoftheCommission,RenataSotoofNashvilleand
HenriettaGrantofKnoxville.

5.Specifybelowthedetailsofwhatthejudgeoractingjudgedidthatyouthinkconstitutes
misconductorindicatesdisability.

On January 17, 2014 The Judicial Performance Evaluation Commission [JPEC] met and
issuedrecommendationsforallSupremeCourtJudgesandallintermediateappellateCourtJudges
who sought evaluations from the Commission to be retained. The Commission chaired by the
HonorableRobertLJonesincludedthefollowingJudgeappointees:theHon.RobertMontgomery,
Jr.,andtheHon.J.MichaelSharp.OnJanuary15,2014themembersoftheCommissionbecame
subject to a Final Order of the First Circuit Court Davidson County, Judge Hamilton Gayden, in
which case they were Defendants. Notwithstanding, the members of the appellate judiciary
seeking election on August 7, 2014 were unlawfully evaluated, because the Commissions nine
members were composed of 7 men and 2 women, in violation of TCA 174201(b)(6), Supreme
CourtRule27.Furthermore,SupremeCourtRule11gavesetouttheresponsibilityoftheSupreme
Courtto:

(5)Totakeaffirmativeandappropriateactiontocorrectoralleviateany
conditionorsituationadverselyaffectingtheadministrationofjusticewithinthe
state.

(6)Totakeallsuchother,furtherandadditionalactionasmaybenecessaryto
theorderlyadministrationofjusticewithinthestate,whetherornothereinor
elsewhereenumerated.

The aforesaid provisions required that the Commission be composed of members who,
approximatethepopulation,asregardstoraceandgender.Thefactisthe2010censusshows
thattherearemorewomeninTennesseethanmenandthereforeunderthelawtheCommission
should have been 5 females and 4 males. The Commission, under statute TCA 174201(b)(6), is
required, in making evaluations, to accurately represent the publics voting rights, in order to
ensurethatthoseconstituenciesareproperlyreflectedintheCommissioncomposition.Despitea
FinalOrderoftheCourt,declaringtheCommissionvoidabinitio,allmembersoftheJPEC,under
the auspices of the three named Judges, proceeded unlawfully to recommend all 22 applicant
JudgesforretentionontheAugust7,2014ballotinviolationofthatOrder.

TheJPEChadnoauthoritytoignoretheCourtsFinalOrderofJanuary15th2014,andhad
no authority to violate TCA 174201(b)(6) and Rule 27 2.03 limiting the power of the JPEC.
Therefore,theCommissionproceededtodosoinviolationoftheOfficialMisconductstatuteTCA
3916402:

Thatstatuteprovides:
OFFICIALMISCONDUCT
4BOARDOFJUDICIALCONDUCT

(a)apublicservantcommitsanoffensewho,withintenttoobtainabenefitortoharmanother,
intentionallyorknowingly:
commitsanactrelatingtotheservantsofficeoremploymentthatconstitutesan
unauthorizedexerciseofofficialpower;
commitsanactundercolorofofficeoremploymentthatexceedstheservantsofficial
power;
refrainsfromperformingadutythatisimposedbylaworthatisclearlyinherentinthe
natureofthepublicservantsofficeoremployment;
Violatesalawrelatingtothepublicservantsofficeoremployment;or
Receivesanybenefitnototherwiseauthorizedbylaw.
(d)anoffenseunderthissectionisaclassEfelony

To reiterate, the Supreme Court has the power and the duty to require that the Judicial
Performance Evaluation Commission [JPEC], which is a part of the judicial branch of State
Government,beproperlycomposed,inaccordancewithTCA174201(b)(6)andunderSupreme
Court Rule 27 2.03. The Judicial Performance Evaluation Commission, decisions shall be
consistent with this rule [27], and the Commission has no power to waive or to modify any
provisionofthisrule.

The fact is the members of the Supreme Court, instead of taking affirmative and
appropriate action, knowingly accepted the unlawful recommendations of a malapportioned
JPEC, and based upon those unlawful recommendations, all the members of the appellate Court,
seeking a retention election on the August 7, 2014 ballot submitted declarations of candidacy in
directviolationofboththeStatuteandtheRule.

In the lawsuit of Hooker, Brumit, Gottlieb and Spann vs. Ramsey et al, Case No. 13C5012,
First Circuit Court Davidson County Judge Hamilton Gayden, in its Final Order of January 15,
2014,theCourtheld:

ThisCourtconcludesthatthecompositionofthecurrentJudicialPerformance
Evaluation Commission is invalid ab initio under Tennessee Code Ann. 174
201(b)(6) and is discriminatory against the female and black population of
StateofTennesseeinviolationoftheEqualProtectionandDueProcessclauses
ofbothUnitedStatesandTennesseeConstitutions.

At the Commission meeting on January 17, 2014 the Plaintiffs in that lawsuit appeared
before the JPEC and made public statements to the members to the effect that the Commission
wassittingunlawfully,becauseitwascomposedof7menand2womeninobviousviolationofthe
aforesaid statute and Supreme Court Rule 27 and the Courts order of January 15, 2014. We
pointed out to the members of the Commission that they had no power to authorize any
appellate Judge for RetentionElection because the Commission was unlawfully composed. The
factis,underSupremeCourtRule27,Section2.02theJPECisapartofthejudicialbranchofState
5BOARDOFJUDICIALCONDUCT

Government, and under Section 2.03 the Commission has, no power to waive or modify any
provision,of[that]Rule.

Nevertheless, over our objection, the Commission voted to recommend all appellate
Judges seeking a RetentionElection including two they previously rejected. Notwithstanding, the
aforesaid facts, all Appellate Judges seeking a recommendation from the Commission to run in a
RetentionElection,knewthattheJPECwasimproperlyconstituted.Nonetheless,saidJudgesfiled
declarations of candidacy, based upon the invalid recommendations of the Commission, in direct
violation of Judge Gaydens Final Order of January 15, 2014, TCA 174201(b)(6), Supreme Court
Rule 27 and the Code of Judicial Conduct. The Commission, apparently, took its unlawful action
thatdaybaseduponadvicefromtheAttorneyGeneralsoffice,whentheAttorneyGeneralhasan
obviousconflictofinterestasthedirectappointeeoftheStateSupremeCourt.

WhilethedeclarationofcandidacymustbefiledwiththeStateElectionCommissionunder
TCA174115(a)(1)eachCountyElectionCommissionoftheStatehastheresponsibilityofplacing
theJudgesnameontheballotandprovidingtheopportunityfortheVotertovoteeithertoretain
orreplaceeachJudge.Consequently,eachCountyElectionCommissionisinvolvedintheelectoral
process,TCA174115(b)(1),andthereforeeachCountyhasresponsibilityofplacingthenameson
theballot.Therefore,theGrandJuryofthisCountyliketheGrandJuryofeveryotherCountyhas
thejurisdictiontoindictandorreporttothePeopleregardinganyunlawfulconduct.

The fact is, Lt. Governor Ramsey and Speaker Harwell, well knew that the appointments
theymadetotheCommissionwereinvalid.Likewise,membersoftheCommissionwellknewthat
that Commission was invalid and finally and most importantly, all the members of the appellate
Courtwellknewthattheywereinvalidlyrecommended,becausetheCommission wasunlawfully
comprised. Consequently, as the result of their actions and inactions the voters of this State, in
each and every county, are being deprived of their right under the aforesaid provisions. It is
obvious, that these Judges who are seeking reelection for eight year terms took said action for
theirowneconomicbenefit,wellknowingthattheyindividualareviolatingtheruleoflaw.

On January 24
th
Judge Hamilton did file a subsequent order, but that order declaring that
theCommissionwassittingdefacto,couldnotinanywayauthorizetheCommissiontoviolatethe
law,assetouthereinabove.

WE UNDERSTAND THAT STATE LAW PROVIDES THAT THE COURT OF THE JUDICIARYS
PROCEEDINGS ON THIS REQUEST FOR INVESTIGATION ARE CONFIDENTIAL PRIOR TO THE FILING
OFANYFORMALCHARGESBYDISCIPLINARYCOUNSEL.

UNDER PENALTY OF PERJURY, I SWEAR OR AFFIRM THAT THESE STATEMENTS AND


INFORMATION CONTAINED IN ANY ATTACHED DOCUMENTS ARE TRUE TO THE BEST OF MY
KNOWLEDGE AND CONSTITUTE ALL OF MY COMPLAINTS AS OF THIS DATE AGAINST THE ABOVE
NAMEDJUDGEORACTINGJUDGE.

615-269-6558
johnjayhooker@hpeprint.com
DAVIDSON COUNTY
SWORN TO AND SUBSCRIBED
-.l:L day of , 2014 .
Notary Public: Ylaqct.y
My Commission Expires: 0 1- 0'1-
6 - BOARD OF JUDICIAL CONDUCT
30 East Dale Court
Greeneville TN 37745
Phone (423)-823-0157
Fax (866)-366-0043
waltbrumit@aol.com
STATE OF TENNESSEE
COUNTY OF GREENE
TO AND SUBSCRIBED
day of I 2014.
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STATE OF TENNESSEE
DAVIDSON COUNTY
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-L1L-n{jay of I 2014.
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9 - BOARD OF JUDICIAL CONDUCT
10BOARDOFJUDICIALCONDUCT

ARTICLEX,1.Oathofoffice

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,takeanoathtosupporttheConstitutionofthisState,andoftheUnitedStates,and
anoathofoffice.
Oath of Office
I, [Insert Name], do solemnly swear that I will support the Constitution of
the United States of America and the Constitution of the State of Tennessee, that
I will administer justice without respect of persons, and that I will faithfully and
impartially discharge all the duties incumbent upon me as Judge of the [Insert
Court & District], of the State of Tennessee, to the best of my skill and ability, so
help me God. This the [Insert Day, Month & Year].

SUPREMECOURTRULE10Canon1

A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND


IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE
OFIMPROPRIETY.

RULE1.1CompliancewiththeLaw

Ajudgeshallcomplywiththelaw,includingtheCodeofJudicialConduct.

RULE1.2PromotingConfidenceintheJudiciary

Ajudgeshallactatalltimesinamannerthatpromotespublicconfidenceintheindependence,
integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.

RULE1.3AvoidingAbuseofthePrestigeofJudicialOffice

A judge shall not abuse the prestige of judicial office to advance the personal or economic
interestsofthejudgeorothers,orallowotherstodoso.

SUPREMECOURTRULE10Canon2

Rule2.12SupervisoryDuties
11BOARDOFJUDICIALCONDUCT

(B) A judge with supervisory authority for the performance of other judges shall take
reasonable measures to ensure that those judges properly discharge their judicial
responsibilities,includingthepromptdispositionofmattersbeforethem.

SupremeCourtRule11:SupervisionoftheJudicialSystem.

I.General.
This Rule is promulgated pursuant to the inherent power of this Court and particularly
thefollowingsubsectionsofT.C.A.163502,providingthattheSupremeCourtshallhavethe
power:

(5)Totakeaffirmativeandappropriateactiontocorrectoralleviateanyconditionorsituation
adverselyaffectingtheadministrationofjusticewithinthestate.

(6)Totakeallsuchother,furtherandadditionalactionasmaybenecessarytotheorderly
administrationofjusticewithinthestate,whetherornothereinorelsewhereenumerated.
Itspurposeisasfollows:

c.TopromotetheorderlyandefficientadministrationofjusticewithintheState.

II.Functionalimprovementofjudicialsystem

a. ThejudicialsystemofthisStatehenceforthwillfunctionasanintegratedunitunderthe
directionandsupervisionoftheSupremeCourt.

SupremeCourtRule27:JudicialPerformanceEvaluationProgram.

1.04. The Tennessee General Assembly has enacted laws that establish a meritbased process
for selecting and retaining the members of Tennessee's three appellate courts. To promote
informedretentiondecisions,Tenn.CodeAnn.174201(c)requirestheJudicialPerformance
Evaluation Commission to publish reports concerning each appellate judge seeking election to
anunexpiredtermorelectionorreelectiontoafulleightyearterm.Inadditiontoitsprimary
purpose of selfimprovement, the Judicial Performance Evaluation Program must provide
information that will enable the Judicial Performance Evaluation Commission to perform
objective evaluations and to issue fair and accurate reports concerning each appellate judge's
performance.

1.05.InTenn.CodeAnn.174201(a)(1),theTennesseeGeneralAssemblyhasgiventhe
TennesseeSupremeCourttheresponsibilitytopromulgatearuleestablishingthejudicial
performanceevaluationprogramforappellatejudges.

Section2.JudicialPerformanceEvaluationProgram.

12BOARDOFJUDICIALCONDUCT

2.01.InaccordancewiththisCourt'sinherentsupervisoryauthorityoverthecourtsystemand
thejudges,andpursuanttoTenn.S.Ct.R.11,Tenn.CodeAnn.163501andTenn.CodeAnn.
174201(a)(1),thereisherebyestablishedaJudicialPerformanceEvaluationProgramaspart
ofthejudicialbranchofstategovernment.

2.02.TheJudicialPerformanceEvaluationProgramshallbeadministeredbytheJudicial
PerformanceEvaluationCommissionestablishedbyTenn.CodeAnn.174201(b).

2.03.TheJudicialPerformanceEvaluationCommissionshallhavetheresponsibilityforthe
design,theimplementation,andthedaytodayoperationoftheJudicialPerformance
EvaluationProgram.TheCommission'sdecisionsshallbeconsistentwiththisrule,andthe
Commissionhasnopowertowaiveortomodifyanyprovisionofthisrule.

Section4.EvaluationProcedureforAppellateJudges.

4.01.TheJudicialPerformanceEvaluationProgramshallincludetheregularevaluationofthe
performanceofappellatejudges.Theevaluationsshallbecarriedoutusingprofessionally
acceptedmethodstoprovideobjectiveandreliableevaluationsandtoreducetheriskofunfair
ratingsandstatisticalcomparisons.Evaluationsshallbebasedonsufficientdatatoensurethe
statisticalreliabilityoftheevaluationinformation.

4.02.TheJudicialPerformanceEvaluationProgramforappellatejudges,inadditiontobeing
usedforselfimprovementpurposes,shallalsobeusedfortheevaluationrequiredofappellate
judgesseekingelectiontoanunexpiredtermorelectionorreelectiontoafulleightyearterm
underTenn.CodeAnn174201(b).

Section5.EvaluationProcedureforAppellateJudgesforRetentionRecommendations.

5.01.TheJudicialPerformanceEvaluationCommissioncreatedbyTenn.CodeAnn.174
201(b)shallperformevaluationsofallappellatejudgesseekingelectiontoanunexpiredterm
orelectionorreelectiontoafulleight(8)yeartermforthepurposeofaidingthepublicin
evaluatingtheperformanceoftheappellatejudgesinaccordancewiththeprovisionsofthis
rule.

5.02.(a)TheJudicialPerformanceEvaluationCommission'sevaluationshallbeconsistentwith
thecriteriainSection3.01andshallbebasedontheresultsoftheevaluationsurveys,onthe
personalinformationcontainedinanapprovedselfreportingform,andonsuchother
commentsandinformationastheCommissionshallreceivefromanysource.
(b)If,becauseofgubernatorialappointment,anappellatejudgeholdsofficelessthanoneyear
before the filing deadline of a declaration of candidacy for either an unexpired term or a full
eightyear term, and evaluation surveys are not available, the Judicial Performance Evaluation
Commission shall conduct an evaluation and make a retention recommendation using an
approved selfreporting form, the judge's application, and other reliable information.
13BOARDOFJUDICIALCONDUCT

5.03. The Judicial Performance Evaluation Commission, or a panel thereof, shall conduct a
public interview with each appellate judge seeking election to an unexpired term
or reelection to a full eightyear term. The Commission's meetings and deliberations shall be
public.

5.04. The Judicial Performance Evaluation Commission may accept, and in its discretion, may
solicitpubliccommentsconcerningtheperformanceoftheappellatejudgesseekingelectionto
an expired term or election or reelection to a full eightyear term. The Commission shall
provide each appellate judge with a reasonable opportunity to respond to any information or
comment received by the Commission regarding that judge prior to the preparation of the
Commission'sevaluationofthatjudge.

TCA174115.Declarationofcandidacyforreelectionforfullterm

(a)(1)Anincumbentappellatejudgewhoseekselectionorreelectionforafulleight
year term must qualify by filing with the state election commission a written declaration of
candidacy.
(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
placedontheballot:

TCA174201

(a)(1)By rule, the supreme court shall establish a judicial performance evaluation program
forappellatecourtjudges.Thepurposeoftheprogramshallbetoassistthepublicinevaluating
the performance of incumbent appellate court judges. The judicial performance evaluation
commission,establishedpursuanttosubsection(b),shallperformtherequiredevaluations.The
commission shall makea recommendation either "for retention" or "for replacement" of each
appellatecourtjudge;provided,thatthecommissionshallnotevaluateormakeanyretention
recommendation with regard to any appellate judge whose term of office is abbreviated
becauseofdeath,resignationorremoval.Furthermore,thecommissionshallnotincludewithin
the final report, publicly disclosed pursuant to subsection (c), an evaluation or retention
recommendationforanyappellatejudgewhosetermofofficeisabbreviatedbecauseofdeath,
resignationorremovalorwhofailstotimelyfileadeclarationofcandidacyasrequiredby17
4114(a) or 174115(a), unless the judge is a candidate for another office subject to
evaluationunderthissection.

(B)Assoonasisreasonablypracticableunderthecircumstances,butnotlessthanthree(3)
dayspriortothedeadlineforfilingadeclarationofcandidacyrequiredby174114(a)(2)or
174115(a)(2),thejudicialperformanceevaluationcommissionshallprovideanincumbent
appellatejudgewithadraftofthecommission'sevaluationandshallprovidethejudgewitha
14BOARDOFJUDICIALCONDUCT

reasonableopportunitytocommentorrespondeitherpersonallyorinwriting.

(b)(1)Thejudicialperformanceevaluationcommissionshallbecomposedofnine(9)
members.

(2)Thespeakerofthesenateshallappointfour(4)ofthemembers,ofwhomone(1)shallbe
astatecourtjudge,two(2)shallbeattorneymembersandone(1)shallbeanonattorney.No
morethantwo(2)ofthoseappointedshallresideinthesamegranddivision.

(3)ThespeakeroftheHouseofRepresentativesshallappointfour(4)ofthemembers,of
whomone(1)shallbeastatecourtjudge,one(1)shallbeanattorney,andtwo(2)shallbe
nonattorneymembers.Nomorethantwo(2)ofthoseappointedshallresideinthesame
granddivision.

(4)ThespeakerofthesenateandthespeakeroftheHouseofRepresentativesshalljointly
appointone(1)statecourtjudge.

(5)Thesupremecourt'sevaluationproceduremaypermitthejudicialperformanceevaluation
commissiontoperformanevaluationwithlessthanthefullmembershipinpanels,butthefull
commissionshallapprovetheevaluation.

(6)Theappointingauthoritiesforthejudicialperformanceevaluationcommissionshallmake
appointmentsthatapproximatethepopulationofthestatewithrespecttoraceandgender.
Inappointingattorneystothecommission,thespeakersshallreceive,butshallnotbebound
by,recommendationsfromanyinterestedpersonororganization.

TCA3916402 OFFICIALMISCONDUCT

(a)apublicservantcommitsanoffensewho,withintenttoobtainabenefitortoharmanother,
intentionallyorknowingly:
(1) commits an act relating to the servants office or employment that constitutes an
unauthorizedexerciseofofficialpower;
(2) commits an act under color of office or employment that exceeds the servants official
power;
(3) refrainsfromperformingadutythatisimposedbylaworthatisclearlyinherentinthe
natureofthepublicservantsofficeoremployment;
(4) Violatesalawrelatingtothepublicservantsofficeoremployment;or
(5) Receivesanybenefitnototherwiseauthorizedbylaw.
(d)anoffenseunderthissectionisaclassEfelony

-
-
Grand Jury
Final Report
April - June 2014
The Honorable Judge Seth W. Norman
Criminal Court of Davidson County, TN
SEE SPECIAL CASE LAST PAGE
RE: GRAND JURY
APPEARANCE - JOHN JAY HOOKER
WALT BRUMIT - TONY GOTTLIEB
15 - Board of Judicial
Presentment
We heard one Presentment on June 16, 2014 by Prosecutor Charles Robinson regarding
Defendant Sergio Espinosa and Defendant Joseph Progar.
Our charge was to review the "Police Shooting Disposition - Recommend no indictment ."
The grand jury heard the presentment and decided that the two police officers acted
appropriately and should not be indicted.
Special Case
We were privileged to meet John Jay Hooker, who came to present a concern regarding
appointment of judges in Tennessee. He, along with attorneys Tony Gottlieb and Walter Bruit,
brought documents from their lawsuit challenging the constitutionality of the Retention
Election Statues.
They stated that, according to the state constitution, it is unlawful for appellate court judges to
have their name on a ballot without opposition. Judges running unopposed must be
recommended to the governor by the Judicial Performance Evaluation Commission. They stated
that the JPEC is not properly seated and is not a balanced commission, and therefore does not
fairly represent the population. They believe because of this practice judges are being
unlawfully appOinted by the governor and not truly elected by the public.
The case went to court and it was concluded that the JPEC was unlawfully seated and violated
the State constitution. When presented with this finding, the JPEC declined to take action to
rectify the circumstance, and in violation of the law, recommended all 22 appellate judges who
were seeking to run in a Retention Election without any candidate opposition.
This was a compelling and convincing case, and was very well prepared and presented.
However, due to time constraints by this jury, we were not able to take action. We recommend
that subsequent grand juries allow Hooker, Gottlieb and Bruit to again present their case and
allow time for steps to be taken that will bring about change in the process of electing appellate
judges in Tennessee.
In cl osing
We all agree that serving on the Grand Jury has been the experience of a life-time. As jurors
together for three months, we bonded as family and have enjoyed getting to know one
another. We recognized the gravity of our responsibilities and we took our charge very
seriously; however, we had a good deal of fun and laughter, and made new friends along the
way.
We were proud to serve on the Grand Jury. We come away with a broader understanding of the
criminal justice system and a deeper appreciation for the individuals who serve our community.
We believe the city of Nashville is in good hands.
FINAL PAGE -Davidson County Grand Jury
*
* JOHN JAY HOOKER et al, - v- LT. GOVERNOR RON RAMSEY et al
IN THE CIRCUIT COURT FOR DAVIDSON COUNTY Case No. 13C-5012
16 - Board of Judicial
IN THE FIRST CIRCUIT COURT FOR DAVIDSON COUNTY, TELJt:. ED
JOHN JAY HOOKER, WALTER ) 15 AHI/=48
BRUMIT, and ANTHONY )
GOTTLIEB, )
Plaintiffs,
v.
LT. GOVERNOR RON RAMSEY,
HOUSE SPEAKER BETH HARWELL,
HON. ROBERT JONES, MICHAEL
E. TANT, CHRISTOPHER CLEM,
HENRIETTA GRANT, J. GREGORY
GRISHAM, RON. ROBERT
MONTGOMERY, JR., HON. J
MICHAEL SHARP, RENATASOTO
JOSEPH A. WOODRUFF, DAVID
HAINES, SECRETARY OF STATE
TRE HARGETT" GOVERNOR BILL
HASLAM, and ATTORNEY
GENERAL ROBERT E. COOPER, JR.
Defendants.
)
)
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FINAL ORDER
RICH,l.ilD R. ROGKEil. CLERK

No. 13C-S012
This cause came on to be heard on January 14, 2014, on the Defendants' Motion
To Dismiss Plaintiffs' Amended Application for Declaratory Judgment and an Injunction, on
Plaintiffs Motion to Amend the Amended Application to name Holly Spann as a Plaintiff, and on
the Motion to Allow and Accept Amicus Brief of Mr. James D. R. Roberts, Jr. Based 00 the
pleadings of the parties, the arguments of counsel, the applicable law and the record as a whole,
the Court makes the following findings of fact and conclusions of law:
17 - Board of Judicial
I. This Court finds that Plaintiffs' general challenges to the constitutionality of the
Retention Election Statutes, Tenn, Code Ann 17-4-101 , et seq. are currently pending before the
SpeCial Supreme Court in the case of Hooker v. Haslam, No. M2012-01299-SC-Rll -CV, and
therefore, such claims shall be dismissed under the doctrine of prior case pending.
2. TIus Court finds that Plaintiffs, John Jay Hooker, Walter Brunlit and Anthony
Gottlieb have standing to challenge alleged procedural denials of their constitutional right to
present grievances before the Evaluation Commission, to challenge the conduct of any Judge
under Article 1, sect. 23 and Supreme Court Rule 27, Section 2, alleging they were denied that
right, stating a recognizable basis affording them standing both as to subject matter and personal
standing, if true.
This Court also finds that John J. Hooker by reference, is a professed judicial candidate
based on findings in the case of Hooker v. Haslam, No. M2012-01299-SC-RII-CV, and thus
has separate standing.
This Court finds that Plaintiffs' motion to amend to add Holly Spann as a Plaintiff, -
representating women of Tennessee, is well-taken, and as such she also has standing in her
own behalf and as representative of the female population of the State.
3. This Court finds that the decision of Monder v. Board of Professional Responsibility,
M2012-0079-COA-R3-CV, 2013 WL 2490576 (Tenn. Ct. App. June 6, 2013) is controlling as to
the issue of the validity of Tenn. Supr. Ct. R, 27, and the Plaintiffs' challenges to the
validity of Rule 27 should be dismissed.
The Court further finds that the Supreme Court has the sole authority to establish the
procedures of its agencies pursuant to Tenn. Sup, Ct. R. 27 and the Supreme Court has
established the procedures for the Judicial Performance Evaluation Commission.
The court finds that it is without authority or power to issue injunctive relief against the
Judicial Evaluation Commission or its members as the sole power to administer the Judicial
18 - Board of Judicial
Evaluation Commission lies with the Supreme Court of Tennessee.
4. TIus court finds that all Plaintiffs have standing to seek a declaratory judgment as to
the validity of the composition of the Judicial Perfonnance Evaluation Commission under the
provisions of the Tenn. Code Ann. 17-4-201 (b )(6) which reads: " The appointing authorities for
the judicial perfonnance evaluation commission shall make appointments that approximate the
population of the state with respect to race and gender. . . the speakers shall receive, but shall no!
be bound by, recommendations from any interested person or organization."
5. This court finds that the language of the legislative enabling statute for the
membership of the nine member Judicial Evaluation Commission language is
mandatory, not permissive, and requires that the appointing authorities for the Judicial
Perfonnance Evaluation Commission shall make appointments that approximate the population
of the state with respect to race and gender.
This Court takes judicial notice of the fact that the population of Tennessee,
according to the UrJ.ited States Census Bureau for 2012 is 52% women, 48% men
and 17% African- American, rounded off.
This Court finds that the composition of the current Judicial Performance Evaluation
Commission consists of nine men and two women and therefore, only
represents 22% of the female population of this state and 11 % of African- Americans
popUlation.
6. This Court concludes that the composition of the current Judicial Perfonnance
Evaluation Commission is invalid ab initio under Tenn. Code Ann 17-4-201(b)(6) and is
discriminatory against the female and black population of the State of Tennessee. in violation of
the Equal Protection and Due Process Clauses of both the United
States and Tennessee Constitutions.
7. This Court declines, however, to enjoin any further actions of the
19 - Board of Judicial
Judicial Performance Evaluation Commission and denies Plaintiffs' request for injunctive relief
nor to declare that the actions of the Judicial Evaluation Commission "nul! and void", as such
declarations would invade the province of the Supreme Court of Tennessee.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that:
1. Defendants Motion to Dismiss Plaintiffs' general challenge to the
constitutionality of the Retention Election Statutes is granted;
2. Defendants Motion to Dismiss Plaintiffs' challenge to validity of Tenn. Sup.
C!. R. 27 is granted;
3. Defendants Motion to Dismiss Plaintiffs' Amended Application on the
grounds that Plaintiffs lack standing is denied;
4. Plaintiffs' request for a declaratory judgment as to the validity of the
composition of the Judicial Performance Evaluation Commission is granted and the Court rules
that the Judicial Performance Evaluation Corrunission is invalid under Tenn. Code Ann. 17-4-
201 (b)(6) and unconstitutional under the Due Process and Equal Protection Clauses of the United
States and Tennessee Constitutions as being discriminatory toward the female and'black
population of the State of Tennessee;
5. The Plaintiffs' request for injunctive relief enjoying any further actions of
the Judicial Performance Evaluation Commission is denied; the Plaintiffs' petition for this court
to declare the actions ofthe Judicial Evaluation Conunission "null and void" is denied;
6. That Plaintiffs' Motion to Amend to add Holly Spann as a PJaintiffis
granted;
7. That Mr. Roberts' Motion to File an Amicus Brief is granted; and
8. That all costs are assessed against the Defendants for which execution may
issue.
20 - Board of Judicial
IT IS SO ORDERED.
~ 4 4 -
Judge Hamilton V. Gayden, Jr.
I hereby certify that an exact and true copy of the foregoing has been mailed to:
Janet Kleinfelter
Deputy Attorney General
Office of Attorney General
P.O. Box 20207
Nashville, TeIUlessee 37202
John Jay Hooker
115 Woodmont Blvd.
Nashville, Tennessee 37205
On this the I ~ y of January, 2014.
Clerk
21 - Board of Judicial
en
IN THE FIRST CIRCUIT COURT FOR DAVIDSON COUNTY, TENNEssh r U
JOHN JAY HOOKER, WALTER
BRUMIT, and ANTHONY
GOITLlEB,
Plaintiffs,
v.
IT. GOVERNOR RON RAMSEY,
HOUSE SPEAKER BETH HARWEll,
HON. ROBERT JONES, MICHAEL
E. TANT, CHRISTOPHER CLEM,
HENRIEITA GRANT, J. GREGORY
GRISHAM, HON. ROBERT MONTGOMERY
JR., HON. J. MICHAEL SHARP, RENATA
SOTO, JOSEPH A. WOODRUFF, DAVID
HAINES, SECRETARY OF STATE
TRE HARGEIT, GOVERNOR Bill
HASLAM, and AITORNEY GENERAL
ROBERT E. COOPER, Jr.,
Defendants.
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AMENDED ORDER
24 AH II: 51
ROD,,::R. CLERK
No. 13C5012

-------. J ,
The Court notes that the Tennessee Judicial Performance Evaluation Commission met
on January 17, 2014. The Court takes judicial notice that the Commission reversed its tentative
ruling that Court of Appeals Judges, McMillian and Bennett would not be recommended for
retention. This development renders the treatment of all the Appellate Judges as equal, thus all
the Tennessee Appellate Judges will be subjected to a yes or no vote for retention.
22 - Board of Judicial
Under Tennessee law a governmental body such as the Judicial Performance Evaluation
Commission may be deemed a de facto body and although its composition is invalid and not de
jure, nonetheless' its decisions have full force and effect unless there exists other infirmities or
irregularities in its work or deliberations. A government de jure has been defined as one legally
established and functional. A de facto government is one existing in fact, having effect even
without a formal or legal basis. Jordon v. Knox County, 213 S.W.3d 751 (2007). The Court in
Jordon notes that the Tennessee Supreme Court has specifically approved the language of the
Norton v Shelby County, 118 U.S. 425 (1886) which provides as follows:
"The doctrine which gives validity to acts of officers de facto, whatever defects
there may be in the legality of their appointment or election is founded upon
considerations of policy or necessity, for the protection of the public and individuals
whose interests may be affected thereby. Offices are created for the benefit of the
public .... For the good order and peace of society their authority is to be respected
and obeyed until in some regular mode prescribed by law their title is investigated
and determined. It is manifest that endless confusion would result if in every
proceeding before such officers their title could be called in question." Norton at
441-442.
Thus, while in the case at hand the composition of the Judicial Performance Evaluation
Commission may still be invalid, this Court wants to make clear that it is not declaring the
actions of the Judicial Performance Evaluation Commission null and void. The Court finds that
while the Tennessee Judicial Performance Evaluation Commission is not a de jure body, it is a
de facto body and as such its findings carry the full effect of the law for which the legislature
intended.
23 - Board of Judicial
HOME / BL OG / CONS T I T UT IONAL C RI S I S
Posted on: 07- 10-2014 by: David F owler
Our states elected leaders are playing a game of constitutional roulette. And if they lose,
Tennessee will face a constitutional crisis of tsunami proportions. I say that because of the United
States Supreme Courts decision regarding the unconstitutionality of the Presidents recess
appointments to the National Labor Relations Board.
The Court affirmed the decision of the Court of Appeals in which the following statement was made:
The Board had no quorum, and its order is void. The Board, of course, is the National Labor
Relations Board that had issued an order against a business who appealed the validity of that order.
The appellate courts statement meant that when the Board met subsequent to those illegal
appointments, those illegally appointed members were effectively not there as a matter of law. Of
course, not being there, the Board lacked a quorum at its meetings. Lacking a quorum, all the
Boards orders and decisions were void. The logic is flawless.
Setting Up the Game
With that background, here is the game of constitutional roulette were playing in Tennessee. The
graphics in this video explain visually what follows.
Earlier this year, Tennessee trial judge Hamilton Kip Gayden ruled that the composition of the
J udicial Performance Evaluation Commission (Commission) was invalid under state law. State law
requires that the panels composition approximate the population of the state with respect to race
and gender.
Tennessees population is roughly 52 percent women and 48 percent men, yet the Commission is
made up of two women and seven men, meaning women make up only about 22 percent of the
panel. The failure of the Commission to even come close to meeting the statutory requirements
meant that the Commission was invalid.
Family Action Council of
Tennessee
1113 Murfreesboro Road, Suite
106-167
Franklin, TN 37064
(615) 591-2090
info@factn.org
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4
If J udge Gaydens ruling stands, then the three justices of the state Supreme Court standing for
retention election in August should not be on the ballot (as well as all the court of appeals judges
who were also recommended). Under state law, a sitting justice can only be on a retention ballot if
the Commission approves his or her past performance. So, if the evaluation that put them on the
ballot was made by an invalid Commission, then it would logically follow that the justices did not
meet the requirements to be on a retention ballot.
The Game Will Be Played in August
Next, lets assume those justices are retained when we go to the polls in August. If we follow the
reasoning just approved by the Supreme Court to the effect that rulings by invalidly seated
governmental bodies are void, then every judgment these justices make after being retained would
have to be invalid. That is so because three of the five justices would not, as a matter of law, have
been there.
Heres the nightmare. After their re-election, assuming they are re-elected, these justices will begin
to rule on cases that are already pending before them. But assume some later time, maybe a year
or two later, a lawyer who wants to preserve a favorable trial ruling argues that his losing opponent
has no court to appeal to. And why? Because the majority of the justices arent validly there.
At that point, a special panel of judges will be appointed and, if they are honest, they will agree with
J udge Gayden. If that happens, then every ruling by our Supreme Court (and courts of appeals)
issued prior to then should be as invalid as the rulings by the improperly seated National Labor
Relations Board. That is a nightmare.
Is There A Way Out?
Why our political leaders made no effort to fix this potential problem and gambled on no court ever
upholding J udge Gaydens ruling isnt relevant at this point. The point is that re-electing these
judges is to make the same gamble.
So, when you go to vote for these Supreme Court justices (and the appellate judges), just
remember that youll also be deciding whether to join the game of constitutional roulette. The
decision to play or not play the game is yours.
Watch David Fowler explain the game of constitutional roulette in this YouTube video
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President
in 2006. Read Davids complete bio.
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Categories: blog
Tags: ballot, constitution, court, david fowler, Elena Kagan, Hamilton Gayden, judges, J udicial Performance
Evaluation Commission, justices, National Labor Relations Board, retention election, roulette, Sonia Sotomayor,
supreme court, tennessee
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