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Hooker Wants to Address Judicial Evaluation Committee

Letter from John Jay Hooker to the Judicial Performance Evaluation Commission; December 3, 2013:

David Haines, Esq.
General Counsel Judicial Performance Evaluation Commission
E-mail: DHaines@tncourts.gov,
David.haines@tncourts,com

Dear Mr Haines:

I am writing to request that you advise all the members of the Judicial Performance Evaluation Commission that as a litigant in the case of, In Re: John Jay Hooker, before the Supreme Court, I would like to have an opportunity to personally appear before the Commission on Friday December 6th or anytime thereafter before the Commission makes its final evaluation at a time convenient to the Commission here or at any other location, regarding whether or not the Supreme Court Judges should be Retention-Elected. Respectfully, I believe that I and other citizens who have grievances towards various judges, for various reasons, have a constitutional right to be heard under Article I §1, Article I §23, Article XI §16, (see addendum,) to reform the Government

In my opinion the members of the Supreme Court should not be Retention-Elected as a consequence of the decision in the aforesaid case. Based on my personal knowledge under my attorney’s oath I want to inform the commission that the five members of the Supreme Court, in my case, in accordance with the Commission’s evaluation criteria, set out in Supreme Court Rule 27 §3.01 showed a lack of integrity, were guilty of impropriety, personal bias, and did not decide the case based on the law and the facts. They were not impartial and they did not comply with the Code of Judicial Conduct, regarding a Judge’s duty to recuse if an objective person would question the impartiality of the Judge, Supreme Court Rule 10-Rule 2.11(a), Disqualification.

The objection that I have regarding all five members of the Supreme Court, who declined to “disqualify” themselves in the, In Re: Hooker, case is based on the fact that the members of the Court had an “interest” in the subject matter of a Motion in that case. Nonetheless, the members of the Court declined to “disqualify” themselves under Article VI §11 and therefore acted without jurisdiction. While they denied my Motion to disqualify for their own benefit, in In Re: Hooker, claiming that a litigant cannot challenge the manner by which Judges are elected, however the Court reversed itself on that issue in the case of John Jay Hooker vs. Governor Haslam pending before the Special Supreme Court.

Under our Constitution, every litigant is entitled to “Due Process of Law” and this litigant was deprived of “Due Process of Law,” because the Members of the Court were manifestly “prejudiced” against this lawyer because of my long efforts in the Courts, before the Legislature and in public forums, sometimes, reported in various newspapers, to get the Retention-Election Statute declared “unconstitutional.”

I sought relief in the public interest on behalf of the qualified voters of the State or district, because the Retention-Election Statute provides for the “appointment” of Judges by the Governor when the Constitution specifically provides that “Judges shall be elected by the qualified voters.”

May I suggest that the file in the, In Re: Hooker case should be procured by the Commission. The file will reveal the totality of my claims. My claim includes the fact that the Court put down an order prohibiting me from filing any further papers in that case, which order is still effective as of this day and therefore I request the Commission to ask the Clerk of the Appellate Court, Mr. Michael Catalano to have the file made available to the Commission. The order depriving this litigant of the right to file papers in that case was and is blatantly unconstitutional. Furthermore, that Order was put down for the benefit of the Members of the Court, and for the purpose of harming this lawyer. Consequently, that Order deprived this litigant of my constitutional right to access to an open court, (see attached letter from the Clerk).

That action violated the Official Misconduct statute, for which technically the Judges were subject to criminal liability. Simply put the members of the Supreme Court, who decided my case, were guilty of an abuse of power for their own benefit, in an effort to deprive this lawyer of my Constitutional right to request said Judges to disqualify themselves. The fact is these Judges declined to do so because they were prejudiced against me for my efforts to remove them office. Furthermore, these self serving Judges declined to do so in order to keep this lawyer from challenging the constitutionality of the Act under which they were appointed.

However, subsequently the members of the Court in the case of John Jay Hooker vs. Governor Haslam, did recuse themselves on the basis that the had an interest in the subject matter of the case, which interest was the same interest, the Judges had when they declined to disqualify themselves in the disciplinary case. The result was, they suspended this lawyer’s law license in, In Re: Hooker, when under the decision in the Hooker vs. Haslam case, the Supreme Court had no jurisdiction to do so. That conduct proves said Judges should not be Retention elected, and should be put in situation where they have to answer in public, in a contested election.

The reason I ask the Commission to procure the file, In Re: Hooker, is that I have received the attached letter this week, from the Clerk, which reflects that the members of the Court have again violated my constitutional rights to file a motion in that case, in an effort for this lawyer to bring the file to this Commission. Judges have no right to prohibit any litigant to file papers in an effort to support the Constitution.

Thank you sir, in advance, for requesting the Commission to give me an opportunity to be heard in accordance with the constitutional rights of those who desire to seek redress of grievances under Article I §23. I would like do so on Friday December 6th if possible, or in the alternative thereafter at the convenience of the Commission at any location of the Commission’s choice.

So that I can comply with the form usually employed by the evaluation process, please send me a copy of the survey form that others who have responded to inquiries by the Commission have received. Incidentally, notwithstanding the fact that I had the aforesaid case before the Supreme Court, I did not receive any inquiry from the commission to which I could have responded setting out my complaint.

Permit me to say with great sincerity, under my attorney’s oath that I have a firm belief that the all the members of the regular Supreme Court are “not fit” to be retention elected because they abused their power for their own benefit and to harm a lawyer that they are prejudiced against for challenging their jurisdiction and the manner by which they were appointed and subsequently retention-elected.

Thanks for your assistance:

John Jay Hooker

cc: Distributed to the Press and to the Regular Members of the Supreme Court

Addendum

ARTICLE I.
Declaration of Rights

Section 1. That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

Section 23. That the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address of remonstrance.

ARTICLE VI

Section 11. No judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity of consanguinity, within such degrees as may be prescribed by law, or in which he may have been of counsel, or in which he may have presided in any Inferior Court, except by consent of all the parties. In case all or any of the judges of the Supreme Court shall thus be disqualified from presiding on the trial of any cause or causes, the court or the judges thereof, shall certify the same to the governor of the state, and he shall forthwith specially commission the requisite number of men, of law knowledge, for the trial and determination thereof. The Legislature may by general laws make provision that special judges may be appointed, to hold any courts the judge of which shall be unable or fail to attend or sit; or to hear any cause in which the judge may be incompetent.

ARTICLE XI

Section 16. The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted
out of the general powers of the government, and shall forever remain inviolate.

TN Supreme Court Rules

Rule 27 Section 3. Evaluation Criteria

3.01. Appellate judges shall be evaluated based on the following specific criteria:

(A) Integrity. In addition to other appropriate performance measures, the Commission shall consider:

(1) avoidance of impropriety and appearance of impropriety;

(2) freedom from personal bias;

(3) ability to decide issues based on the law and the facts without regard to the identity of the parties or counsel, or the popularity of the decision and without concern for or fear of criticism;

(4) impartiality of actions; and

(5) compliance with the Code of Judicial Conduct contained in Tenn. S. Ct. R. 10.

Supreme Court Rule 10-Rule 2.11(a) Disqualification A Judge shall disqualify himself or herself in any proceeding in which the Judge’s impartiality might reasonably be questioned…

Fight Over Justices Charges Up Judicial Selection Lawsuit

Parties in a lawsuit challenging how high-ranking Tennessee judges are selected are presently more wrapped up in who will rule on the case than the merits of the case itself.

Gov. Bill Haslam last week appointed three new members to a Special Supreme Court to hear a lawsuit against him challenging the constitutionality of how the state has picked judges over the past four decades. Haslam’s earlier appointees stepped down after John Hay Hooker, a longtime political gadfly behind the lawsuit, pressured them to recuse themselves for having ties to an organization that lobbies against popularly electing judges.

Now, another special justice, W. Morris Kizer, has revealed that he donated to Haslam’s campaigns for Knoxville mayor in 2003 and governor in 2010. Kizer’s household gave $3,000 to Haslam’s gubernatorial campaign, according to campaign records.

Kizer insists his political donations don’t “constitute a basis for disqualification,” but Hooker contends every link is suspect.

“It’s like a football game between the University of Tennessee and Vanderbilt,” said Hooker, an 82-year-old former Democratic Party gubernatorial candidate who today is asking the Special Supreme Court to take up his case. “Do you want the referee to be a graduate from the University of Tennessee or Vanderbilt? That’s a no-no.”

He isn’t the first person to use a football analogy to attempt to influence debate about judicial selection.

In 2011, then-Supreme Court Justice Cornelia Clark tried to convince members of the Tennessee Press Association that electing judges would be just as bad as electing referees for a football game.

Referees would say they will still call a fair game if one team contributed more money to their election campaign than the other, Clark said.

“And I’d say I’d be willing to believe they’re probably going to try to do that,” she said. “But I’m not sure perception would be right.”

Like Clark, the governor openly opposes judicial elections. Haslam maintains that members of his Special Supreme Court may have opinions about whether judges should be popularly elected, but that shouldn’t interfere with their ability to render an impartial judgement. The newest members of the special court are Shelby County criminal court Judge J. Robert Carter Jr., retired East Tennessee U.S. Attorney James R. Dedrick, and Monica N. Warton, chief legal counsel for Regional Medical Center at Memphis.

“If you ask anybody if they’re alive and human, they have an opinion about things,” Haslam said last week before naming the three new members to the panel. “That’s different than having a conflict. I think anybody that we will appoint will understand that difference and will make sure there’s no conflicts.”

Appeals judge Alan Glenn, chairman of the Judicial Ethics Committee, said the governor’s interpretation is correct. The tricky part, he said, is defining what conflicts can “reasonably” be questioned.

“Like defining what’s fairness and what’s beauty, everyone has their own ideas,” he said. “What is reasonably questioned impartiality? Everyone has their own views on it.”

Supreme Court and other appellate judges are appointed by the governor, then face yes-no retention elections every eight years under a policy known as the Tennessee Plan. The Legislature has for the last few years debated whether the practice aligns with the state Constitution, which some say clearly calls for popular elections.

The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

While Hooker awaits the Special Supreme Court’s official decision to take up the case, he is also itching for a chance to officially question justices on whether they can impartially rule on the case, a right he insists he’s given under the state Constitution.

The governor in July picked the initial members of the Special Supreme Court. The state’s five Supreme Court justices recused themselves from hearing the case because they will be directly affected by the ruling.

Political insiders and onlookers are paying close attention. The Tennessee Plan is scheduled to sunset June 30, 2013, when lawmakers will decide whether to renew it.

Lawmakers will also have to decide whether to give final approval to a bill that would amend the Constitution to allow appellate and Supreme Court judges to be appointed by the governor and confirmed by the Legislature. The judges would still face retention elections. If approved by lawmakers, the amendment would go before voters in the 2014 general election.

“It’s an interesting case, I’ll say that. All of us are looking at that closely,” said Lt. Gov. Ron Ramsey, who is also a named defendant. Ramsey has said he believes the Tennessee Plan in its current form is indeed unconstitutional — although he, like the governor, opposes direct judicial elections.

Hooker: Judicial Retention Election Statute is Unconstitutional

Op-ed from John Jay Hooker, Advocate for Election & Campaign Finance Reform; September 14, 2012: 

Supreme Court Judges, the Big Lie, and the Cover-up

In 1973 in the case of Higgins v. (Governor) Dunn, the Supreme Court of Tennessee unlawfully held that the Retention Election statute is constitutional. The constitutionality of the Act was not properly before the court due to the fact that Governor Dunn had made no appointment under the Act, nor was there any election conducted under the Act. Under the facts of the case, the Act was not “APPLICABLE”. Therefore, the Court had no power, in legal terms, no jurisdiction, to rule on the constitutional issue. As a result of that unlawful decision, the “BIG LIE” was born and lives today.

However, the “BIG LIE”, that the Retention Election statute is constitutional, is perpetuated by the decision in the case of Hooker v. Thompson in 1996. In that case the court again held the Retention Election statute constitutional, relying upon the ruling in the Higgins v. Dunn case. The Court so held, notwithstanding the fact the Court had held that that there could be no election under the Act. Therefore the constitutional issue was not properly before the Court.

Unbelievably, the Tennessee Bar Association and many of the biggest law firms in Tennessee and lobbying organizations such as Tennesseans for Fair and Impartial Courts, because these organizations want judges to be appointed by the Governor, notwithstanding the fact that the constitution requires that all judges be elected by the qualified voters, all claim that the Retention Election Statute is constitutional. Those claims are based on the Court’s rulings in the two aforesaid decisions. Notwithstanding the fact that these lawyers know, if they have read the Constitution, that the claim that the Act is constitutional is a “BIG LIE”.

In furtherance of the “BIG LIE”, Governor Haslam appointed as Special Judges former Chief Justice Barker and former Supreme Court Justice Brown, who Governor Haslam knew or should have known were both on the Board of Directors of the lobbying organization Tennesseans for Fair and Impartial Courts. Those Special Judges were obviously not “IMPARTIAL” and should not have been appointed by Governor Haslam to sit on the Special Supreme Court, nor should those Judges have accepted the public trust that goes with being a Special Supreme Court Justice and consequently when those Judges accepted that appointment, they dishonored the Constitution and violated the Code of Judicial Conduct, and they know they did. For that reason, upon the motion of this lawyer, they have disqualified themselves in this case.

Astonishingly, on September 8th, Governor Haslam stated that the disqualification of these Judges was unnecessary, notwithstanding the fact that these Judges admitted that their “impartiality might reasonably be questioned”. Furthermore, these Judges in this case cannot preside without the consent of all the parties, which consent was never given. Apparently, that claim by Governor Haslam is simply a part of the “COVER UP” that the Governor and other high governmental officials in all three branches of government, with the cooperation of the office of the Attorney General, are orchestrating on behalf of the special interest groups who want the Supreme Court and other appellate judges of this state to be appointed by the Governor as opposed to being chosen in an election by the qualified voters as the Constitution, in plain language, requires.

The Governor of Tennessee is not a lawyer, but the Constitution was written and ratified by mostly non-lawyers. If the Governor would read the Constitution and the aforementioned Higgins and Hooker cases, and if for that matter each reader of this article will do likewise, the Governor and you will understand that those decisions that gave birth to the “BIG LIE” that rule that the retention election statute is constitutional were unlawfully decided and consequently must be overruled in this case if we are to reestablish the rule of law in Tennessee.

To claim that he believes otherwise is further proof that the Governor of Tennessee is involved in covering up the “BIG LIE” in an effort to keep the Retention Election Statute on the books so that he, as Governor, shall have the sole power to appoint appellate judges. This deprives the citizens of this state their constitutional right to choose their judges in the same right that they have to choose all public officials.

If you want to exercise your God-given, constitutional right to refute the “BIG LIE” and stop the “COVER UP” contact this lawyer who, as a public citizen, is determined under my oath to support the Constitution and represent those in this matter those who are otherwise voiceless.

 

Governor to Appoint New Judges to Special Supreme Court Hearing Challenge to TN Plan

Gov. Bill Haslam said Friday he plans to appoint replacements to a special court assigned to rule on the constitutionality of the state’s judicial selection method after three former members recused themselves for fear of appearing biased.

The governor contends the three original appointees could have stayed on the bench despite challenges to their objectivity because they are entitled to their personal opinion about whether judges should be elected, the central issue of the lawsuit at hand.

“Judges have opinions on things all the time, and I honestly think each one of them could have still rendered a very impartial and fair decision,” Haslam told reporters before a ribbon cutting at Saks Fulfillment Center in La Vergne.

Meanwhile, Haslam’s adversary in the lawsuit is looking to knock off another one of the governor’s original appointees to the Special Supreme Court due to what he sees could be a potential conflict of interest.

John Jay Hooker, a longtime critic of the state’s merit-based system for selecting judges, filed the lawsuit against the governor and other high-ranking officials. He says the governor unconstitutionally appointed a judge to the Court of Criminal Appeals because the judge was not popularly elected.

He told TNReport he expects to file a motion challenging Special Court Justice Andrée Sophia Blumstein’s impartiality. He said her role on the editorial board for the Tennessee Bar Journal, a publication of the Tennessee Bar Association, poses a conflict because the association is in favor of the current practice for selecting judges, called the Tennessee Plan.

“I think the time has come for it to be obvious this is fixed, and it’s a battle between right and wrong,” Hooker told TNReport.

Blumstein declined to comment Friday.

The Tennessee Plan, which is now used to select appellate and high court judges, requires the governor to appoint judges, who then face yes-no retention elections every eight years.

Many, including Hooker, believe the Tennessee Constitution requires that judges at all levels be popularly elected, even though the Legislature and the Supreme Court have chosen not to follow that interpretation.

The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

Three of Haslam’s five appointees to the Special Supreme Court recused themselves from ruling on the case last week, saying their ties to Tennesseans for Fair and Impartial Courts could taint the integrity of the court as it rules on the case.

TFIC is a vocal opponent of popularly electing judges, a practice the group fears would insert too much politics into a job that should be free of political strings.

Two of the original appointees, Judges William Muecke Barker and George H. Brown, are listed as members of the TFIC board of directors. A third, Robert L. Echols, works for a firm with close ties to the organization.

Haslam built the Special Supreme Court after justices of the state’s highest court recused themselves from hearing the case, saying their impartiality could reasonably questioned because they, too, are sitting judges.

The case is now at a standstill. Hooker has until late September to challenge the appellate court’s ruling that found Tennessee’s yes-no retention election practice constitutional. That move would send the case to the Special Supreme Court.

3 Of Haslam’s Special Supreme Court Judges Step Down

More than half the members of Gov. Bill Haslam’s hand-picked special Supreme Court have recused themselves from hearing a case to determine the constitutionality of how Tennessee selects appellate and high-court judges.

Special Supreme Court Judges William Muecke Barker, George H. Brown and Robert L. Echols announced Friday they had disqualified themselves from the case because of a perceived conflict of interest. The three have ties to a group that lobbies against judicial elections, which is the issue at the heart of the case.

“Although the undersigned Special Judges have not formed an opinion about the constitutionality of the contested language of the Tennessee constitution governing the election of appellate judges, they find that it is of utmost importance to protect the integrity of this court and to avoid allegations challenging the independence, partiality or fairness in its decision making process, and opinions,” reads the Special Supreme Court order.

The three judges have ties to the group Tennesseans for Fair and Impartial Courts, an organization that has lobbied against moves to elect appellate judges.

Former gubernatorial candidate John Jay Hooker argues that judges should be popularly elected by voters, like lawmakers and lower-level judges are. He is suing Haslam and other state government officials for appointing a judge to the Criminal Court of Appeals.

“Why on earth they monkeyed around all this time is beyond me,” said Hooker.

“The problem here is that the fix was in. Hell would freeze over before those three judges would hold the retention election statute unconstitutional,” he continued.

Judges are now assigned to the bench through the Tennessee Plan, a method which requires high-ranking judges be appointed by the governor, then elected by the people to renew their eight-year terms through uncontested “yes-no” retention elections.

Many believe the Tennessee Constitution requires that judges at all levels be elected, even though the Legislature and the Supreme Court have chosen not to follow that interpretation.

The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

The recusals leave Special Justice Andrée S. Blumstein and Special Justice W. Morris Kizer to man the court.

Through a spokesman, Haslam’s office issued the following statement:

The governor appointed five attorneys with strong reputations and qualifications. He is disappointed that three of the appointees felt it necessary to recuse themselves based on a perceived conflict of interest, but he understands their decision and appreciates their initial willingness to serve. Their actions are out of an abundance of caution and only substantiate their good faith and character because it is probably unnecessary. No appeal has been filed with the Supreme Court.

Judicial selection in Tennessee has been discussed and analyzed for decades. Having a personal position does not disqualify a judge from serving or applying the law. Judges do that every day.

Haslam’s Special Supreme Court Picks Have Ties to Group that Lobbies Against Judicial Elections

Two lawyers named to a state panel to decide whether Tennessee’s system for selecting judges meets constitutional muster also lead a group that lobbies against judicial elections.

George H. Brown and William Muecke Barker are both listed as board members of Tennesseans for Fair and Impartial Courts, an organization that fights against “misguided individuals and groups … pushing to replace our merit based system with state-wide partisan elections.”

Brown and Barker, along with three other lawyers, were handpicked by Gov. Bill Haslam to decide a lawsuit brought by Tennessee’s most indefatigable critic of the state’s merit-based system of judicial selection, John Jay Hooker.

“(Haslam)’s thrown down the gauntlet,” said Hooker, a two-time candidate for governor who has been fighting this issue in court through various lawsuits since 1996. “He’s said these judges are my people. He’s kind of got me cut off at the pass.”

Hooker is suing the governor and other high-ranking state elected officials to try and force them to revert back to a system of direct judicial elections. Currently in Tennessee, the governor appoints judges to the state Supreme and other appellate courts, with voters choosing whether to renew their eight-year terms.

A third lawyer Haslam selected to the special Supreme Court, Robert L. Echols, works for the Nashville law firm Bass, Berry and Simms. The telephone number listed on the Tennesseans for Fair and Impartial Courts website rings at Bass, Berry and Simms. H. Lee Barfield, a member of the firm’s state government lobbying arm, is also a board member for TFIC and is past president of the organization.

The results of the case, Hooker v. Haslam, could have significant implications for state lawmakers. Constitutional sticklers have long argued that the state system of merit-selection by appointment followed by yes-no retention elections plainly violates the Tennessee Constitution. They say the mandate that judges be elected is being openly flouted.

However, Tennessee courts have upheld the view that retention elections meet the requirement that judges “shall be elected by the qualified voters,” as the Constitution mandates.

Haslam last month handpicked all five members of the Special Supreme Court to rule on the case, a task he said his staff carefully pondered given that the governor himself is a named defendant in the case. He’s standing by his appointees in the face of a push by Hooker to disqualify the trio for the appearance of bias.

“We could have just gone in there and appointed five people who thought exactly the same way. But I honestly feel like we worked to put together a very good panel,” Haslam told TNReport in Clarksville last week.

Gov. Haslam has made no secret of his own opposition to direct judicial elections in the past, saying he fears it would inject excessive and undue political influence into Tennessee’s judicial system. He asked lawmakers early this year to constitutionalize the current appointment-driven practice of selecting judges to clear up any confusion.

When that plan began to fall through, Haslam backed another constitutional amendment proposal to model the state’s system of selecting judges after the federal system, with the Legislature getting an opportunity to confirm judges the governor appoints. The plan now awaits approval from the General Assembly before it can be put to the voters in a referendum in 2014.

Sen. Mike Bell, R-Riceville, who argues the state is currently stepping outside constitutional bounds by appointing judges, said he is wary about the governor’s appointments to the special court.

“I think it would have been nice if the governor maybe would have gone out of his way to choose somebody who didn’t have the appearance of bias. Not that those men are biased, but it leaves the appearances there because of their connections,” he said.

Tausha Carmack Alexander, TFIC’s lobbyists at the statehouse, said the group would rather see anything in place besides “direct partisan elections.”

“We believe that forcing appellate judges to run in contested elections is very costly, and it will introduce more politics into the judiciary,” she said. “Everybody wants to ensure that we have courts that are fair and impartial. You can look at other states — West Virginia, Alabama — where it costs millions of dollars to run in some of the Supreme Court races. We just don’t think that is the way to go for selecting an appellate judiciary member.”

“There is plenty of data out there that indicates how costly (statewide judicial elections) can be, and how political it can be,” Alexander continued.

Hooker is now waiting for Brown, Barker and Echols to respond to his request they recuse themselves because their “impartiality might reasonably be questioned.” A written answer is due “promptly,” according to new court rules.

Barker, also a former Supreme Court Chief Justice who now practices law in Chattanooga, declined to comment on his ability to be impartial when ruling on this case.

“I just don’t think judges ought to be talking about a matter that sits before the court,” he told TNReport, adding that his opinion will be shown in his upcoming response to Hooker’s request.

Attempts to reach Brown, who specializes in mediation and arbitration in Memphis, and Echols Wednesday morning for comment were unsuccessful as of this posting. (TNReport will update this post if we hear back from them.)

The tricky part is how to define “reasonable,” said Judge Alan Glenn, chairman of the state Judicial Ethics Committee.

“There are certainly hundreds and probably thousands of cases where there could be the appearance of a conflict,” said Glenn, who is also an appellate court judge. “The catchall consideration has got to be where the judge’s impartiality can reasonably be questioned, and that’s where minds can differ.”

Three Supreme Court judges recused themselves from the case on July 27, just as Supreme Court Justice Cornelia Clark and Justice William Koch had on July 16. That same day, Haslam appointed the panel, and the Court of Appeals issued its ruling on Hooker’s case, finding that the Tennessee retention election practices are constitutional. Hooker has until late September to ask the Special Supreme Court to hear his appeal to the Appellate Court’s decision.

Andrea Zelinski and Mark Engler contributed to this report.

Courting Conflicts

Most defendants would love to have the power to handpick judges assigned to decide a lawsuit against them. Gov. Bill Haslam, it seems, finds himself in just that enviable position.

Late last Friday afternoon, Haslam announced he had chosen the members of a special ad hoc panel. The panel will serve as a temporary state Supreme Court to rule on a lawsuit that names the governor as a defendant.

The move became necessary after all the the sitting members of the Tennessee Supreme Court recused themselves from hearing the case of John Jay Hooker, on behalf of himself and others, v. Governor Bill Haslam, et al. The lawsuit on appeal is a challenge to the constitutionality of Tennessee’s “merit selection” appointment and “retention election” system of picking appellate and Supreme Court judges.

Asked at a press conference this week if he’d struggled with the potential appearance of a conflict of interest, Haslam indicated his administration had indeed discussed the matter and had decided that he was required by law to appoint the panel.

“We talked with our legal counsel about that,” the governor said after a higher education discussion at Scripps Network in Knoxville Tuesday.

“If the existing Supreme Court recuses themselves, somebody has to appoint them and that’s the governor’s role under the Constitution in the state of Tennessee,” he said.

The matter has been simmering in the background for years, with Hooker, an outlying but ever-enduring fixture on Tennessee’s political scene, tending the flame. The subject of judicial elections has taken on renewed prominence in the past couple years, as many majority-party Republican lawmakers have said they are committed to reconciling the practice of selecting judges with the state Constitution, which they see as at odds with one another.

Hooker told TNReport this week he knew from the get-go Haslam would have to choose members for the special court. But he says he has the right to question and challenge those appointments, for example that of William Barker, a retired Supreme Court justice.

“How can he possibly be impartial in the matter?” Hooker said. “He’s got a vested interest. What is the difference in his interest as a former member of the Supreme Court or the sitting member on the Supreme Court?”

The court system so far has no timeline for when the case would be heard, according to Casey Mahoney, the court system spokeswoman.

House Speaker Beth Harwell is also named in the lawsuit. Her office says there’s nothing worrisome about the governor appointing judges on the court to hear the case.

“It is a statutory duty of the governor to appoint a special state Supreme Court in instances such as this, and literally no one else in the state is given such authority,” said spokeswoman Kara Owen. “There is no reason to expect that this panel would be anything but fair and impartial in the proceedings.”

The outcome of the legal decision could be paramount in the ongoing fight over whether the state is truly “electing” judges.

High-ranking members of the judiciary are selected by the governor who then face “yes-no” retention elections to renew their eight-year terms. Critics of the current system known as the “Tennessee Plan” say the Tennessee Constitution calls for judges to be “elected,” much like lawmakers and lower-level judges are.

The state Constitution says, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

Haslam and the top two Republican legislative leaders are resolute opponents to high-ranking judges facing popular elections. The trio rallied around the idea of rewriting the constitution to reflect how judges are currently selected, but the Republican-led legislature was split on the idea and ultimately dumped that proposal, SJR184, late in the legislative session.

Instead, they agreed on SJR710, which stipulates that the General Assembly should first have to approve the governor’s judicial appointees, then send the judges on their way to retention elections.

House Republican Caucus Leader Debra Maggart voted in favor of legislative confirmation, although attempts to reach her for comment on the lawsuit were unsuccessful Wednesday.

Courtney Rogers, a Republican running against Maggart in Sumner County, maintains that the state ought to bring itself in line with a literal reading of the constitution and require judges to face popular elections, said her spokesman Jeff Heartline. Although he said she had no preference yet on how the constitution should assign judges to the bench.

“If we were following the Constitution, these questions wouldn’t come up,” said Rogers’ spokesman Jeff Hartline, when asked what Rogers thought about the lawsuit. “Let’s follow the constitution and let the people decide.”

The issue has divided Republicans in the Legislature and on the primary campaign trail. Sen. Doug Overby, R-Maryville, has stressed that people shouldn’t employ their own literal reading of the state’s guiding document to justify judicial election. They should instead look to the Supreme Court’s guidance on matters of interpretation.

Andrea Zelinski and Itzel Gonzalez contributed to this report.

Sen. Mae Beavers Sets Sights on Court of the Judiciary

The chairwoman of a key Senate committee plans to go after the Court of the Judiciary again next year, this time with a renewed focus on making the results of complaints against judges public and tightening the rules for judicial recusals.

The challenge is whether the Legislature has enough political will to put in motion Sen. Mae Beavers’ attempts to revamp the court, which investigates allegations of ethical misconduct by judges. Lawmakers put the issue on hold on the last day of this year’s legislative session.

“It’s just a matter of convincing everybody else in the Legislature that we need some changes. I wish everybody could have heard what we heard today and yesterday,” Beavers, R-Mt. Juliet, said after listening to nine hours of testimony about the Court of the Judiciary in two days. Beavers chairs the Senate Judiciary Committee.

She and a small band of mostly Republican lawmakers convened an ad hoc committee examining the Court this week to discuss criticism that the Court lacks transparency and dismisses a large share of complaints. The committee plans to assemble a legislative proposal for next session.

The details are still in the works, but the committee expressed four areas it would like to revamp:

• Strengthening laws that require judges to acknowledge potential conflicts of interest, an issue that is new to Beavers’ agenda.

• Requiring disciplinary action against judges to be made public, which is a shift from Beavers’ position earlier this year.

• Re-organizing the Court’s makeup by requiring that more citizens not in the legal profession are on the panel and stripping the Supreme Court of its power to appoint members, which was the crux of Beavers’ proposal last year.

• Renaming the panel to clarify that the body is not an actual court, a topic Beavers hadn’t addressed before.

While court officials say they favor the name change and are OK with letting someone else select members of the Court, they take issue with attempts to dwarf judges’ presence on the panel by adding a lot more laypeople.

“We’re not asking for anything other than any other profession is,” said Court of Appeals Judge Jeffrey Bivins, chairman of the Judicial Conference Committee, which is monitoring the Court of the Judiciary legislation. Most professional boards in Tennessee hold a majority of members from that line of work, he said, and there’s a reason for that.

“If it’s a person who’s not learned in the area of that procedure, they may well make decisions that could lead to due process violations or some type of violations to where the disciplinary action ultimately wouldn’t be upheld,” he said.

Critics of the Court say far too many complaints against judges are privately dismissed, and that reform is needed.

“The Court of the Judiciary is in the whitewash business,” John Jay Hooker, a longtime critic of the state’s systems for selecting and disciplining judges, told the committee. “They ought to get a pair of overalls and a brush. If I had a fence, I would let them whitewash it because they are expert whitewashers.”

Hooker said one of his own complaints was dismissed because judges were protecting another judge.

The committee heard emotional testimony from Danielle Malmquist of Memphis, who says the judge in her divorce case should have recused himself. The judge’s staff reportedly had police investigate her because of fears she had threatened to kill the judge. Malmquist says she never threatened the judge, and police dropped the case, WSMV Channel 4 reported.

“Judges judging judges is not working in our current system of judicial accountability as those judges have a vested interest,” Malmquist told the committee. “It’s unfathomable to believe that a judge, someone who was charged with great powers by the state, would violate the laws without accountability.”

In the last two decades, the Court has received almost 5,200 complaints. According to the court’s limited records, 170 cases ended in some sort of discipline or resulted in the judge stepping down from the bench. But the Court has kept such poor records that even its administrative office cannot say with certainty what happened to 2,000 of those complaints.

“There’s a biblical principle — it’s avoiding the appearance of evil — and I think that judges should do that when at all possible,” said Sen. Mike Bell, R-Riceville, who sat on the committee and advocates overhauling the Court. “And that appearance of impropriety or that appearance of bias needs to be avoided when at all possible.”

Jerri Bryant, the moving vice president of the Tennessee Judicial Conference and chancellor of the 10th Judicial District, says it’s important to consider that Tennessee courts handle 1 million cases annually. Less than 1 percent of those cases results in a complaint with enough merit to warrant an investigation, she said.

Although officials from both the legislative and judicial branches opened up the two-day hearing saying they weren’t looking to pick a fight with the other, the committee had a combative tone.

“It should not be,” said Court Presiding Judge Chris Craft. “There are three equal branches of government, and we should work with each other. … If we don’t get along, it does nothing but hurt the people in Tennessee, so we need to work together.”