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IN THE SPECIAL SUPREME COURT OF TENNESSEE
AT NASHVILLE
JOHN JAY HOOKER, et al. )
)
Appellant/Petitioner, ))
v. ) Case No. M2012-01299-SC-R11-CV
)) On appeal from Davidson County
) Circuit Court Case No. 12C735
GOVERNOR BILL HASLAM, et al. ))
Appellee/Respondent. )
______________________________________________________________________________
A MOTION TO PERMIT THE FILING OF THE ATTORNEY GENERALS OPINION
13-76, OCTOBER 9, 2013, AND A RESPONSE TO THAT OPINION IN THE FORM OF
A LETTER TO THE GOVERNOR
______________________________________________________________________________
The Attorney Generals opinion is a public document and was by his office disseminated
to the press. That opinion has been issued while this case is still pending, and consequently, in
the opinion of this lawyer, should be considered in deliberations regarding this case. In that
regard, this lawyer wrote a letter to the Governor of Tennessee to whom the opinion was
addressed, which is self-explanatory and attached hereto.
The underlying issue in this case is the constitutionality of the retention election statute.
Therefore, the Attorney Generals opinion is relevant to this case. In his effort to defend the
constitutionality of the retention election statute, which is obviously unconstitutional because the
Legislature has no power under Article VII, Section 4 to determine the manner of election
of judges either for the full term or to fill a vacancy for the unexpired term because the
manner of the election of judges is fixed by the Constitution in Article VI, Sections 3 and 4
and Article VII, Section 5, the Attorney General issued Opinion 13-76 on October 9, 2013.
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Respectfully submitted,
____________________________
JOHN JAY HOOKER, BPR #005118
115 Woodmont Blvd.Nashville, Tennessee 37205
Phone (615) 269-6558
Cell (615) 479-6531Fax (615) 383-6036
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing has been sent via First Class
mail, postage prepaid, to:
Janet Kleinfelter
Deputy Attorney GeneralPublic Interest Division
Office of the Attorney General
P.O. Box 20207Nashville, Tennessee 37202
William A Blue, Jr.Constangy, Brooks, and Smith, LLP
401 Commerce Street, Suite 700Nashville, Tennessee 37219
Jacqueline B. Dixon
Allan F. RamsaurTennessee Bar Association
Tennessee Bar Center
221 4th
Avenue North, Suite 400Nashville, TN 37219-2198
Patricia Head MoskalEdmund S. Sauer
Bradley Arant Boult Cummings, LLP
1600 Division Street, Suite 700P.O. Box 340025
Nashville, TN 37203
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Attorney General Robert Cooper, Jr.
Attorney General for the State of TennesseeP.O. Box 20207
Nashville, TN 37202
On this the 15th day of October 2013. ________________________
John Jay Hooker
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JOHN JAY HOOKER
115 Woodmont Blvd.Nashville, TN 37205
Phone (615) 269-6558
Cell (615) 479-6531
Fax (615) [email protected]
October 14, 2013
Governor Bill HaslamTennessee State Capitol
Governors Office, First Floor
Nashville, Tennessee 37243
RE: Attorney Generals Opinion 13-76 which you, as Governor, requested
Dear Governor,
I am writing you as a lawyer sworn to support the Constitution and as a two-time
Democratic nominee for Governor who campaigned for Civil Rights and the Rule of Law, in
an effort to ask you to reject the opinion of the Attorney General filed August 9, 2013, which
opinion was designed to falsely claim that the Legislature has the power to give the Governor
the power to appoint judges under Article VII, Section 4 in direct violation of Article VII,
Section 5 of the Constitution for the following reasons.
Article VII, Section 4 provides:
The election of all officers, and the filling of all vacancies not otherwisedirected or provided by this Constitution, shall be made in such manner as the
Legislature shall direct.
And, Article VII, Section 5 provides:
Elections for Judicial and other civil officers shall be held on the first
Thursday in August, one thousand eight hundred and seventy, and foreverthereafter on the first Thursday in August next preceding the expiration of theirrespective terms of service. The term of each officer so elected shall be computed
from the first day of September next succeeding his election. The term of office of
the Governor and of other executive officers shall be computed from the fifteenth
of January next after the election of the Governor. No appointment or election tofill a vacancy shall be made for a period extending beyond the unexpired term.
Every officer shall hold his office until his successor is elected or appointed, and
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qualified. No special election shall be held to fill a vacancy in the office of Judge
or District Attorney, but at the time herein fixed for the biennial election of civilofficers; and such vacancy shall be filled at the next Biennial election recurring
more than thirty days after the vacancy occurs. [Emphasis added.]
It therefore should be obvious to a non-lawyer as well as a lawyer that as a result of thetext of the Constitution, Article VII, Section 4 does not grant to the Legislature any power to
determine the manner of an election since it is otherwise provided in the Constitution
under Article VII, Section 5, as the manner of choosing judges must be by an election
both for the full term and when a vacancy occurs. See Article VI, Sections 3 and 4.
Therefore, contrary to the opinion of the Attorney General, the Constitution gives the
Legislature no power under Article VII, Section 4 to pass a law, Tenn. Code Ann. 17-4-101
et seq., changing the manner in which judges are put on the bench. Consequently, the
Legislature cannot empower the Governor to appoint regular judges, as the Constitution
specifically reserves to the qualified voters the power to elect all the judges that judge their
cases under Article VI, Sections 3 and 4 and Article VII, Section 5.
The only exceptions to that constitutional mandate is that the Legislature, under Article
VI, Section 11, (a) may by general laws make provision that special judges may be appointed
to hold any courts the judges of which shall be unable to or fail to attend [Emphasis added] and
where (b) the Governor, under Article VI, Section 11, may appoint members of the Special
Supreme Court when the members of the regular Supreme Court are disqualified, as you did,
Governor, in theHooker v. Haslam case now pending.
Likewise, as you know, Governor, under Article III, Section 2, it is provided that the
Governor shall be chosen by the electors of the members of the General Assembly at the
time and place where they shall respectfully vote for the members thereof, and any vacancy
in the Governors office shall be filled in accordance with Article III, Section 12, which provides
in the event of death or resignation the powers and duties of the office shall devolve on the
Speaker of the Senate.
Furthermore, the Legislators of Tennessee must be elected (chosen) in accordance
with Article I, Section 3 for the full term, and when a vacancy occurs, Article II, Section 15
specifically provides how the vacancy shall be filled.
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Consequently, Article VII, Section 4 is not applicable to the election of the Governor,
the Legislators, or the judges of Tennessee, nor is it applicable to the manner in which
vacancies are filled, as the Constitution provides specifically for the manner in which the
Governor, the Legislators, and judges are put into office under the aforesaid provisions for
the full term and for any unexpired term.
Therefore, the statement by the Attorney General to the contrary is in blatant disregard
of the Constitution, as the Attorney General opines:
The Tennessee Constitution, Article VII, Section 4, specifies that: the
election of all officers, and filling of all vacancies not otherwise directed or
provided by this Constitution, shall be made in such manner as the
Legislature shall direct. With regard to judicial vacancies, the Constitution
provides in Article VII, Section 5 for the dates on which judicial elections shall be
held, but otherwise the Constitution is silent on how to fill judicial vacancies.Accordingly, under the general delegation of authority contained in Article
VII, Section 4, the General Assembly is charged with maintaining the
continuous and efficient operation of Tennessees judicial branch providing a
mechanism for the filling of all [judicial] vacancies. [Emphasis added.]
That statement by the Attorney General is either borne of negligent disregard of the
aforesaid provisions or is a blatant attempt to intentionally misstate the facts and what the
Constitution provides. I say that as there is no other reasonable explanation. Moreover, I make
that statement in the light of the fact that the Attorney General made another colossal
misstatement of fact in the case ofHooker v. Haslam, wherein he filed papers claiming It
should be noted that the words choose or chosen are not used anywhere in the
Tennessee Constitution but have simply been read into the Constitution by Mr. Hooker.
[Emphasis added.]
In that regard, I wrote a letter to the Attorney General, and asked him to send you a copy
of it, pointing out that that claim is preposterous in that the Governor of Tennessee is chosen
by the People under Article III, Section 2, as is every person who is not appointed under
Article X, Section 1, which provides, Every person who shall be chosen or appointed . . .
[Emphasis added.] Attached hereto is a copy of my reply to the Attorney Generals false claims
he made in a previous filing in theHooker v. Haslam case.
Now, the Attorney General has done it again! The Attorney General makes anotherfalse
claim and claims in his opinion that Article VII, Section 4 gives the Legislature the power to
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determine the manner of election of all judges. However, that claim is in direct violation of
Article VII, Section 5, which specifically requires that vacancies be filled by an election. His
claim that Article VII, Section 5 is silent on how fill to judicial vacancies is a bazaar
misstatement of the obvious facts, for which the Attorney General owes you and all who read his
opinion an apology. Otherwise, it will reflect on his competence to hold the high office which he
holds.
Consequently, this lawyer has no choice but to so inform the Court inHooker v. Haslam,
as the Attorney Generals opinion must be challenged, and you Sir should join with me in the
challenge because if the Legislature has the power to change the manner in which judges
are chosen under Article VII, Section 4, then the Legislature likewise has the power to
change the manner in which the Governor and Legislators are also chosen under Article
VII, Section 4.
I am going to attempt to file the Attorney Generals opinion with the Special Supreme
Court in the Hooker v. Haslam case because the Attorney Generals opinion is relevant to that
case and has been issued while the case is pending and has been reported in the press, and the
judges in that case may have the right to take judicial notice of it.
Sir, I am writing you this letter because you possess the supreme executive power of
this state, and I am therefore asking you, as an ordinary citizen and as a qualified voter on
behalf of myself and all other qualified voters, under youroath to support the Constitution, to
advise the Special Supreme Court in the case now pending that the opinion by the Attorney
General claiming that Article VII, Section 4, empowers the Legislature to provide for the
appointment of judges is just plain wrong, as otherwise the Constitution may continue to be
violated on your watch.
The unpleasant fact is that we now have a constitutional crisis in Tennessee because the
regular judges of the appellate courts of Tennessee have been appointed by the Governor both
for the full terms and for all unexpired terms for many years, which the Legislature has
addressed by passing a resolution, SJR2 of the 108th
General Assembly, authorizing an
amendment to the Constitution for the purpose ofconstitutionalizing retention elections.
However, Governor, you know that the Constitution mandates an election in August of
2014 for all the judges of the state, prior to the November vote on the constitutional amendment,
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and therefore, I am asking you to advise the Special Supreme Court in the case ofHooker v.
Haslam that the retention election statute, Tenn. Code Ann. 17-4-101 et seq., under which those
elections shall be held, is unconstitutional because it provides for the appointment of judges by
the Governor in direct violation of the right of the qualified voters to elect all regular judges
under Article VI, Sections 3 and 4 and Article VII, Section 5.
Consequently, Judge Bivins, who is likewise a defendant in the Hooker v. Haslam case,
was unlawfully appointed to fill a vacancy and was therefore unlawfully retention elected by
the qualified voters of the state. Moreover, Judge Bivins was unlawfully elected by the
qualified voters of the state in violation of Article VI, Section 4, which requires an election by
the qualified voters of the District only.
In addition, or in the alternative, I, as a qualified voter, on behalf of myself and all other
qualified voters who desire to elect their judges, am asking you, under your oath to support the
Constitution as Governor, to introduce a bill in the Legislature to repeal the retention election
statute, Tenn. Code Ann. 17-4-101 et seq., presently on the books because, for the aforesaid
reasons, it is blatantly unconstitutional and that fact must be acknowledged by all those who
honor the Constitution prior to the August 2014 election. Otherwise, all who condone
depriving the People of their constitutional right to elect all regular judges will be a part of
the conspiracy to condonethe big lie that is inherent to the retention election statute.
Governor, I have considerable respect for you as a consequence of the high opinion in
which you are held by many of our mutual friends. However, I feel compelled, here in the
twilight of my life, to do what I can to support the Constitution that as a lawyer I swore to
uphold. Therefore, respectfully, I am asking you, as Governor, to liberate the People of this
state from the tyranny that results from unconstitutionally appointed judges who are
thereafter unconstitutionally elected in a retention election that deprives the People of their
constitutional right to choose the judges who judge them.
God Bless,
s/John Jay Hooker
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