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VOL. 127 | NO. 150 | Thursday, August 2, 2012

Supreme Court to Hear Judge Selection

By Bill Dries

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A new Tennessee Supreme Court will hear the latest court challenge to how state appellate court judges are selected.

The case of John Jay Hooker vs. Tennessee Gov. Bill Haslam is a challenge to what is known as the Tennessee Plan – yes or no retention votes on all judges above the trial court level including the Tennessee Supreme Court.

Two of the retention elections are on Thursday’s statewide ballot.

Because of the lawsuit, all five sitting Supreme Court Justices have recused themselves from hearing the case.

Last week, Haslam appointed what amounts to a special Tennessee Supreme Court to hear just that case.

Those on the panel include retired Shelby County Circuit Court Judge George Brown who served briefly on the Supreme Court in 1980.

Brown, who was appointed to the court by then-Gov. Lamar Alexander, lost his seat on the court in an election in which there were candidates, before the state moved to retention votes based on appointments made by the governor.

Others on the special Supreme Court are William M. Barker of Chattanooga, a former Tennessee Supreme Court chief justice; Nashville attorney Andree Sophia Blumstein; Retired Nashville Federal Court chief judge Robert L. Echols of Nashville; and W. Morris Kizer, a Knoxville attorney who was law director for the city of Knoxville during Haslam’s tenure as mayor of the city.

Hooker, the 1970 Democratic nominee for governor, has challenged the constitutionality of state laws on a number of fronts over the years including campaign finance laws.

He has filed seven separate lawsuits challenging judicial retention elections and has lost every one so far.

His legal challenge to the selection of appellate court judges was along familiar lines.

Like other opponents of the retention elections, Hooker claims the Tennessee Constitution’s requirements to fill appellate court vacancies for full terms and parts of terms following resignations include to “be elected by the qualified voters in a popular election in the same manner that trial judges are elected by the qualified voters.”

By practice, appellate court judges and most trial court judges rarely announce they won’t run for re-election at the end of a term of office. They, in virtually every case, resign during an existing term. The governor almost always appoints someone to serve until the next election.

Supporters of the current system of selection of appellate judges argue that the state constitution requirement of an election by qualified voters is general enough to allow for a retention election.

Hooker amended his latest lawsuit in April to add a claim that it was also unconstitutional for voters across the state to vote on appellate court judges who hold seats assigned to each of the state’s three grand divisions. Hooker claimed only the voters in that grand division should be able to make those decisions.

Davidson County Circuit Court Judge Hamilton Gayden Jr. rejected all of Hooker’s claims except the new one. Gayden ruled that only voters in a judge’s grand division could vote on his or her position.

Last week, the state Court of Appeals reversed Gayden on that point and upheld Gayden on the rest of Hooker’s lawsuit.

In the opinion by the three-judge panel, Judge Herschel Pickens Frank wrote that the state laws establishing the state Court of Appeals and state Court of Criminal Appeals “defined the entire state of Tennessee as the district to which the intermediate court judges are assigned.”

“Accordingly, because the judges are assigned to serve and do serve the entire state, their election by a statewide retention election pursuant to the Tennessee Plan is consistent with the requirements … of the Tennessee Constitution.”

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