Amendment 2 — What’s Tennessee Going to Do?

After the votes on Amendment 2 are tallied Tuesday night, Tennessee will embark upon a new chapter in its long and contentious judicial selection saga.

But regardless of the outcome, don’t expect an end to debate — or legal challenges — over issues surrounding the state’s method of picking appellate and Supreme Court judges.

John Jay Hooker, a four-time candidate for governor (including this year as an independent) and the state’s most indefatigably pugnacious disparager of Tennessee’s judicial selection system, told TNReport on Friday that even if Amendment 2 passes, he’s not done filing the fiery-worded legal attacks for which he’s infamous. Not by a long shot.

In fact, the brawling 84-year-old barrister said he plans to continue the fight for direct elections of all Tennessee’s judges for as long as his health and longevity permit, for as long as necessary.

Actually, if Amendment 2 goes down, re-instituting direct judicial elections might be one of the hottest issues on the legislative docket when the Tennessee General Assembly convenes in January.

Hooker’s not holding his breath in anticipation of that, though. He has a lot of years invested in trying to roll back what he regards as a devious, as-yet mostly successful multi-decade scheme by Tennessee’s political elite to seize control of the state’s court system. But while Hooker passionately believes that choosing who ascends to the highest thrones of the judiciary is a role properly left to the people of Tennessee, he’s fully in tune to the reality that most of the state’s political muscle is pressing royally against that outcome.

Hooker’s under no illusions when it comes to the chances of defeating Amendment 2. The current appointment-and-retention system, borrowed from Missouri and renamed the “Tennessee Plan” in 1971, was birthed under suspect pretenses — namely, that it would remove politics from judicial selection. Critics argue that all the Tennessee Plan really did was remove the politics from public view.

Amendment 2 has been cloaked to hide its most objectionable aspect as well, Hooker said.

Omitting What They’re Trying to Erase

Amendment 2 is both difficult to understand and fails to present crucial information voters need to make an informed decision, Hooker contends.

“The presentation of the amendment on the ballot is flawed,” he said. “The voters are at a great disadvantage, and because they can’t be certain what they are voting for or against, it is not a fair election.”

Google ChromeScreenSnapz002The Amendment 2 ballot question asks, “Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following.” It goes on to include the proposed new language. (See the sample ballot question at left.)

What’s missing from the question, however, is the substantive wording of the Tennessee Constitution that, if Amendment 2 is approved, will henceforth go missing from the state’s guiding document: “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

That sentence is the essential provision voters are being asked to blot out. And it also happens to have been the source of more than 40 years of legal and political controversy. For decades judges of the Supreme Court and the appellate judiciary have been appointed by the governor, not chosen by the people, and for decades people have been complaining about it.

By contrast, Amendment 4 on the ballot, which would expand the kinds of charitable organizations legally permitted in Tennessee to conduct fundraising lottery events, includes both the proposed new language and the Constitution’s existing language voters are being asked to amend.

Adding to the ballot-question omission issue is the “Yes on 2” campaign’s assertions in TV commercials and support-solicitation events around the state that the measure “strengthens the voice of Tennesseans in selecting our appellate court judges” and “protects our right to vote for judges.”

Call that fib, fiction or falsehood, it’s not the truth, said Hooker. His assessment in that regard was echoed recently by a disgruntled subset of the Tennessee District Attorneys General Conference.

“The amendment takes away your right to vote, it doesn’t protect your right to vote,” Hooker said. “To say otherwise and to spend all this money advertising that it does is a colossal fraud being perpetrated by men and women who are the highest of Tennessee’s authority figures. It is a disgrace.”

Players Willing to Pay

The “Yes on 2” campaign, which includes a sweeping coalition of the state’s most influential politicians, lawyers and special interests — and even Supreme Court justices themselves, like Jeffrey Bivins and Sharon Lee — has spent vastly more money than the “Vote No on 2” effort. Campaign finance disclosures with the state indicate “Yes on 2” has reported $1.1 million in expenditures, while “Vote No on 2” has spent about $35,000.

Proponents of Amendment 2 argue that by eliminating the Constitution’s existing voter-approved pronouncement that “The judges of the Supreme Court shall be elected by the qualified voters of the state,” dissenters will no longer have any legal or political ammunition for calling into question the legitimacy of the state’s judicial selection system.

“We’re trying to clarify what it should be so that everybody knows and there is no question later on about appointing judges to the highest positions in our state,” said Attorney General Herb Slatery following his swearing-in as the state’s top lawyer last month. “That’s a question we really should not be asking — whether they are constitutionally and validly seated in their seats.”

Slatery said that while “in some people’s minds” there are still questions about the Tennessee Plan’s constitutionality, “it is more perception than legal.”

“We’ve got three Supreme Court decisions upholding the current system, but that doesn’t seem to have answered the question,” said Slatery, who prior to being appointed attorney general by the Tennessee Supreme Court served as Gov. Bill Haslam’s chief legal advisor.

Disagreeing to Agree

In fact, the list of people who don’t put much stock in previous court decisions upholding the Tennessee Plan is rather extensive, and includes many key Amendment 2 supporters. Among them are Lt. Gov. Ron Ramsey, House Speaker Beth Harwell and House Majority Leader Gerald McCormick.

Senate Judiciary Chairman Brian Kelsey who sponsored the legislative effort to put the Amendment 2 referendum before voters, is another who believes the Tennessee Plan is “blatantly unconstitutional.”

“The average person who reads the Tennessee Constitution knows that we have a constitutional problem,” Kelsey said during an Oct. 23 debate over Amendment 2 at the University of Tennessee College of Law. “We have to fix it.”

Kelsey’s opponent in that debate was none other than John Jay Hooker.

Hooker said he respects Kelsey’s honesty on the matter, at least insofar as the Germantown Republican is willing to acknowledge what critics of the Tennessee Plan going back decades have maintained.

Hooker’s respect doesn’t extend, however, to the likes of Slatery and Haslam and former Gov. Phil Bredesen, who have over the years shrugged off or belittled concerns over the Tennessee Plan’s constitutionality, and even taken official steps to ensure the deck always remains legally and politically stacked against returning judicial-selection power to the the people.

Court Intrigues

For example, Hooker called Slatery’s recent appointment of Andrée Sophia Blumstein to the post of Tennessee solicitor general a “political payoff” related to her support for the Tennessee Plan.

The editorial board chair of the Tennessee Bar Journal, Blumstein was handpicked by Gov. Haslam in 2012 to serve on a “Special Supreme Court” assigned to decide a lawsuit Hooker filed challenging aspects of the Tennessee Plan. The case was John Jay Hooker et al. vs Governor Bill Haslam et al.

Last March the Special Supreme Court delivered its opinion, which Blumstein authored. One of the key questions the ruling addressed was “whether the phrase ‘shall be elected by the qualified voters’ refers exclusively to a contested popular election, or whether it also includes other kinds of elections in which the members of the public vote, such as a referendum or a retention election.”

The Special Supreme Court’s unanimous verdict was that, ultimately, it is up to the Legislature to decide what an election is. Blumstein wrote:

According to the plain, ordinary, inherent meaning of “elect,” the Constitution requires that the public be given an opportunity to choose, or to decide by voting, who may serve as an appellate judge. A contested popular election offers voters such a choice, but a contested popular election is not the only election process that gives the voters such a choice. A ballot that asks the voters whether one particular person should be retained as a judge or replaced is an election in which the voters are asked to “choose” whether a particular person is the one they want to be a judge. The retention election ballot gives the voters a choice of accepting one alternative and rejecting another. Thus, the Tennessee Plan’s retention election ballot fully meets the definition of “elect” because it is a process of choosing someone for public office by voting and it fully meets the definition of “choose” because it allows the public to decide by voting whether a particular person is the person the voters want as judge.

In Hooker’s estimation, the fix was in from the moment Gov. Haslam selected members of the Special Supreme Court to hear a case in which he, Haslam, was a named as defendant. Indeed, three of the original members of the Special Supreme Court — which was assembled in the first place because all five members of the regular Supreme Court recused themselves — stepped down after it was revealed that they had previous ties to a pro-Tennessee Plan advocacy group.

Hooker questioned Blumstein’s impartiality as well, but she went on to serve as chief justice for the Special Supreme Court anyway.

The outcome of Hooker vs. Haslam didn’t come as a surprise to him.

“(Blumstein) decided the case in exactly the same way that Slatery and Haslam wanted her to decide it,” Hooker said. “And in my judgment, she’s now getting her payoff, by being appointed solicitor general.”

The attorney general’s office didn’t immediately responded to a request for comment on Hooker’s allegations in that regard Friday.

Also last week, Hooker filed a complaint with the Tennessee Board of Judicial Conduct asking that Chief Justice Lee step down from the court  for circulating a letter through the Tennessee Bar Association’s email list advising lawyers that “Amendment 2 is the right choice for Tennessee and will protect the long‐term integrity of Tennessee’s justice system.”

Said Hooker, “Asking them to vote for an amendment that the chief justice well knows would give her an economic benefit is an absolute violation of the Code of Judicial Conduct.”

“It is an absolute disgrace and she should be reprimanded by the Tennessee Board of Judicial Conduct. And the people should understand that she has compromised the integrity of the court,” he added.

That goes for Justice Bivins, too, said Hooker. “Any of them who are a part of that fraud ought to be held up for ridicule.”

“It is astonishing to me that in this great country born of the idea that the people are the sovereign  — born of the idea of self-government — that they want to take away self-government from the people and they are willing to lie to do so,” Hooker said.