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.

______________________________________________________________________________ REPLY TO THE BRIEF OF THE DEFENDANTS-APPELLEES SIGNED BY THE ATTORNEY GENERAL, ROBERT E. COOPER, JR. ON BEHALF OF HIMSELF AND ON BEHALF OF THE GOVERNOR OF TENNESSEE ET AL. FILED APPARENTLY WITHOUT THE APPROVAL OF THE GOVERNOR OR THE OTHER DEFENDANTS WHO MUST HAVE KNOWN UNDER THEIR OATH TO SUPPORT THE CONSTITUTION THAT THE WORD CHOSEN IS IN THE CONSTITUTION AND THAT IT IS A SYNONYM OF THE WORD ELECTED, WHICH WORD IS USED INTERCHANGABLY WITH THE WORD CHOSEN AND THAT CONSEQUENTLY ALL ELECTED OFFICIALS UNDER THE PLAIN LANGUAGE OF THE CONSTIUTION, INCLUDING JUDGES, MUST BE ELECTED AND CHOSEN ONLY BY THE QUALIFIED VOTERS OF THE STATE FOR THE SUPREME COURT OR THE QUALIFIED VOTERS OF THE DISTRICT FOR THE INTERMEDIATE APPELLATE COURTS AND A REPLY TO THE CLAIM THAT INTERMEDIATE APPELLATE JUDGES MAY BE ELECTED BY THE QUALIFIED VOTERS OF THE STATE AND A REPLY TO THE CLAIM THAT THIS HONORABLE COURT NEED NOT RULE ON WHETHER THE COURT OF APPEALS JUDGES ARE COMPETENT TO RULE IN THIS CASE NOTWITHSTANDING THE FACT THAT THE COURT APPEALS LACKED JURISDICTION IN VIEW OF THE FACT THAT TWO OF THE THREE JUDGES HAD BEEN RETENTION ELECTED ______________________________________________________________________________ BACKGROUND The essence of this lawsuit involves the question of whether or not the Legislature can make provision for the Governor to appoint regular judges both for the Supreme Court and the intermediate appellate courts either for the full or unexpired terms, and therefore whether the

retention elections statute, Tenn. Code Ann. 17-4-101 et seq., which provides for a vote for the judges to be either retained or replaced, is constitutional when tested against the plain language of the Tennessee Constitution contained in Article VI, Sections 3 and 4 and Article VII, Sections 4 and 5, which provisions require that Judges shall be elected by the qualified voters of the State or the qualified voters of the Circuit or District, and Article X, Section 1, which states, Every person who shall be chosen, and Article VII, Section 5, which requires that any vacancy shall be filled at the next biennial election occurring more than thirty days after the vacancy occurs. No challenge regarding the election of intermediate appellate judges has ever before, in any other case, been litigated, and consequently this case is before this Court as matter of first impression. The Court of Appeals reversed the trial judge who held that only the votes of the qualified voters of the District should be counted, which holding by the Court of Appeals is a reason for the Application for Permission to Appeal. Therefore, this case is not subject to a res judicata or stare decisis plea as it relates to intermediate appellate judge elections under Tenn. Code Ann. 17-4-114 and Article VI, Section 4. ARGUMENT REGARDING THE WORDS ELECTED AND CHOSEN In accordance with the above cited provisions, the fact is that the Appellant asserted in the Brief of the Appellant in Support of the Application for Permission to Appeal the following: Any impartial analysis of the retention elections statute must acknowledge that the statute provides for the appointment of all regular appellate court judges by the Governor, which circumstance is in direct conflict with the Tennessee Constitution, because, on the other hand, the Constitution requires that all appellate judges (as opposed to special judges appointed under Article VI) must be elected and chosen by the qualified voters of the State or District in which they are assigned pursuant to Article VI, Sections 3 and 4, Article VII, Sections 4 and 5, and Article X, Section 1. [See Appendix] Consequently under the Tennessee Constitution, there can be retention election where the voters only choice is to retain or replace the judge, as under the aforesaid provisions, the 2

qualified voters are entitled to choose and elect their judges both for the full terms and the unexpired terms. How can any judge honestly and impartially say otherwise in the light of the plain language of the cited constitutional provisions? To that claim, the Attorney General responded in his Brief on behalf of the Governor et al. with the following language. Brief of the Defendants-Appellants, page 20: In construing a constitutional provision, courts may look to three criteria: the text of the language used, the history of the provisions and similar provisions from other states. As this Court has stated: The text of a constitutional provision is the primary guide to the provision's purpose. Cleveland Surgery Ctr., L.P. v. Bradley Cnty. Mem'l Hosp., 30 S.W.3d at 282; Hatcher v. Bell, 521 S.W.2d 799, 803 (Term. 1974). We must interpret constitutional provisions in a principled way that attributes plain and ordinary meaning to their words, Barrett v. Term. Occupational Safety and Health Review Comm'n, 284 S.W.3d 784, 787 (Tenn.2009); Gaskin v. Collins, 661 S.W.2d 865, 867 (Tenn.1983), and that takes into account the history, structure, and underlying values of the entire document. Cleveland Surgery Ctr., L.P. v. Bradley County Mem'l Hosp., 30 S.W.3d at 282. All constitutional provisions are entitled to equal respect. Thus, when called upon to construe a particular provision, the Court must consider the entire instrument, Barrett v. Tenn. Occupational Safety and Health Review Comm'n, 284 S.W.3d at 787; State v. Martin, 940 S.W.2d 567, 570 (Tenn.1997), and must harmonize its various provisions in order to give effect to them all. State ex rel. Higgins v. Dunn, 496 S.W.2d 480, 487 (Tenn. 1973); Shelby Cnty. v. Hale, 200 Tenn. 503, 511, 292 S.W.2d 745, 748^9 (1956). No constitutional provision should be construed to impair or destroy another provision. Vollmer v. City of Memphis, 792 S.W.2d 446, 448 (Tenn. 1990); Patterson v. Washington County, 136 Tenn. 60, 66, 188 S.W. 613, 614 (1916). Estate of Bell v. Shelby County Health Care Corp., 318 S.W.3d 823, 835 (Tenn. 2010). Astonishingly, however untruthfully, the Attorney General in footnote 6 on page 20 of his Brief on behalf of himself, the Governor of Tennessee, all appellate judges of Tennessee, the Speaker of both Houses of the Legislature, et al. apparently with or without the consent of each of the aforementioned Defendants, under his own signature, makes the following charge against this fellow lawyer:

Mr. Hooker argues that the Tennessee Constitution requires that all regular judges must be elected and chosen by the qualified voters of the state. Brief of Appellant at 9. 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.] It is preposterous that the Attorney General of Tennessee would claim that the Constitution, without discussing the claim with the other Defendants, does not include the word chosen, and it is even more preposterous that the Attorney General, on the contrary, did not acknowledge that it does, and it is likewise preposterous that the Attorney General apparently is not prepared to acknowledge that the words elected and chosen are synonyms and are used interchangeably in Article III, Sections 1 and 4, Article VI, Section 3 and 4, Article VII, Sections 4 and 5, Article X, Section 1, and Article XI, Sections 3 and 9 and that consequently an appointment by the Governor of judges who are supposed to be elected and/or chosen is unconstitutional. Furthermore, it is astounding that the Attorney General, under his own signature and oath as a lawyer sworn to practice law to the best of his skill and ability, would claim that this lawyer, under that same oath, has read into the Constitution words that are not there when the fact is that, on the contrary, the Attorney General and his staff on behalf of Governor Bill Haslam et al. either didnt read the aforesaid sections of the Constitution or, otherwise, the Attorney General, it appears, must want to read the word chosen out of the Constitution, with or without the knowledge of the Governor, in order to make the claim that judges can be appointed by the Governor under the retention election statute in violation of the Constitution, instead of judges being chosen in a contested popular election by the qualified voters as the Constitution requires in accordance with Article VI, Sections 3 and 4, Article VII, Section 5, and Article X, Section 1. 4

Consequently, in reliance upon all the cases that the Attorney General set out in the above excerpt, this Court is bound by that case law regarding the following statements: (a) a constitutional provision is a primary guide to the provisions purpose; (b) this Court must interpret the constitutional provisions in a principle way that attributes plain and ordinary meaning to their words; (c) this Court must give all constitutional provisions . . . equal respect and the Court must consider the entire document and the Court must harmonize the various provisions in order to give effect to them all; and (d) the Court must observe the rule that no constitutional provision should be construed to impair or destroy another provision. Therefore, it is obvious that the retention election statute is unconstitutional because it provides that the Governor shall appoint judges when, on the other hand, the Constitution mandates that all judges be elected and/or chosen by the qualified voters of the State for the Supreme Court and by the qualified voters of the District for the intermediate appellate courts, and that is in accordance with the cases relied on by the Attorney General set out in the previous paragraphs. There can be no doubt that the words elected and chosen are used interchangeably under Article III, Sections 1 and 4, Article XI, Sections 3 and 9, and Article X, Section 1, read in harmony with Article VI, Section 4. ARGUMENT REGARDING ARTICLE VI, SECTION 4 Article VI, Section 4 of the Constitution provides: The judges of the Chancery and Circuit courts and of other inferior courts, shall be elected by the qualified voters of the District or Circuit to which they are assigned. Every judge of such courts shall be thirty years of age, and before his election have been a resident of the State for five years and of the Circuit or District one year. His term of service shall be eight years.

The Attorney General argues that Article VI, Section 4:

Confers excluded authority on the General Assembly to define what constitutes a District and Circuit to which the judges of the inferior court are to be assigned. In establishing the Court of Appeals and Court of Criminal Appeals, the General Assembly intended these intermediate appellate courts to serve the entire State, although it authorized these intermediate courts to sit in sections or panels of three judges. In other words, there is only one Court of Appeals and one Court of Criminal Appeals in Tennessee, as specifically recognized by Tenn. Code Ann. 16-4-113, which provides: In order to expedite the trial and decision of cases the Court of Appeals, when the court deems it appropriate to do so, is authorized and empowered to sit in sections of three (3) judges each, at Knoxville, Nashville, and Jackson, to hear and determine cases just as though all twelve (12) judges were present and participating, and the presiding judge of the Court of Appeals shall in such even have the right, from time to time to assign and reassign the judges and sections. Furthermore, the fact is that the appellate judges of Tennessee are assigned to three separate sections; each judge is assigned either to the Middle, Eastern, or Western Section. For example, Judge Jeffrey S. Bivins, in August 2012, was retention elected to the Court of Criminal Appeals for the Middle District of Tennessee, where Judge Bivins resides and where he is assigned as a member of the Middle Section Court of Criminal Appeals. In other words, Judge Bivins is a judge of the Court of Criminal Appeals for the Middle District of Tennessee sitting in the Middle Section of Tennessee. All the other Court of Appeals judges, both civil and criminal, are likewise assigned to a Section, as evidenced by the fact that in the Tennessee Bluebook the judges of each Section are listed by Section. While they are all pictured together because they are all judges for the Court of Appeals, they are nonetheless assigned to the Section or District where they reside. Judge Bivins resides and is eligible to vote in Williamson County, thus he has been assigned to the Middle Section and would not be able to vote for himself if he were assigned to any other Section. For the same reason that Judge Bivins cannot vote in Shelby County, for instance, under Article IV of the Constitution, which requires

voters to vote in the precincts in which they reside, Judge Bivins could not be a candidate for the Western Section for the Court of Criminal Appeals as he can only be a candidate for the Middle Section, where he resides and where he votes and to which he has consequently been assigned. In other words, judges must be assigned to the Section or District where they reside and vote. The evidence of that is there is no judge sitting on the bench in any Section or District of the Court of Appeals who does not reside and is eligible to vote in that Section or District. Otherwise, no intermediate appellate court judge could vote for himself. The Legislature by providing for an at-large or a statewide election of appellate judges, under Tenn. Code Ann. 17-4-114, violated Article VI, Section 4, which requires that all judges be elected by the voters of the District to which they are assigned and reside and are eligible to vote. The word District has a universal meaning. As it is used in the United States District Courts, the word District connotes a section of the judicial circuit to which judges are assigned. The State of Tennessee cannot be a judicial District as evidenced by the fact that there are thirty-one judicial Districts in the State of Tennessee, as there are ninety-nine House of Representative Districts and thirty-three senatorial Districts. For the same reason that the Legislature could not pass a law requiring State Representatives and/or State Senators to run statewide, it cannot pass a law for intermediate appellate judges to run statewide or for Circuit judges, chancellors, or criminal trial judges to run statewide. The constitutional scheme and plan is for the Legislature and the judges, except the Supreme Court judges, to be accountable to their fellow citizens where the office-holder and the voter both reside. Furthermore, the Legislature passed a law, Tenn. Code Ann. 16-5-103(a), which provides that, The judges of the Court of Criminal Appeals shall be elected by the qualified

voters for a full term of eight (8) years at the same time the regular judicial election is held in the State of Tennessee for the judges of other courts of record. Furthermore, Tenn. Code Ann. 165-102 provides that the Court shall be composed of twelve (12) judges, of whom no more than four (4) shall reside in any grand division of the State. Therefore, it is apparent that the judges of the Court of Criminal Appeals must reside in one of the three Grand Divisions of the State and that only those that reside in that Grand Division can be elected and/or chosen by the voters of the Eastern, Middle, or Western Sections or Grand Divisions. As a consequence, the Tennessee retention election statute as it relates to appellate judges is unconstitutional in violation of Article VI, Section 4 and as a result, the entire statute is unconstitutional because the Legislature would not have passed a statute that applied to Supreme Court judges only if the same statute that applied to the election of the intermediate Court of Appeals judges had been held to be unconstitutional. Therefore, the opinion written by the Court of Appeals in this case should be reversed. Moreover, the panel that decided the instant case consisted of P.J. Herschell Pickens Franks and David G. Haynes and Donald P. Harris. Notwithstanding, the fact is that two of those three judges, Franks and Haynes, were disqualified because they themselves were retention elected and the constitutionality of the retention election statute is the subject matter of this case. ARGUMENT REGARDING RECUSAL There is no more important concept under the Rule of Law than that judges must be constitutionally competent in order to preside because if they are not constitutionally competent they cannot administer Due Process of Law. The fact is that The People of Tennessee have suffered for more than forty years because they have been deprived of their

constitutional right to elect and choose their appellate judges who frequently decide matters crucial to the individual rights of the citizens of the State. As a consequence of the decision in the case of Higgins, supra, wherein, two of the four judges, Judges McClanless and Chattin, were constitutionally incompetent because as potential candidates under the retention election statute, they had a disqualifying interest under Article XI, Section 6 of the Tennessee Constitution, Tenn. Code Ann. 17-2-101, and the Code of Judicial Conduct, Supreme Court Rule 10, Canon 2. As a consequence, the majority opinion, written by four judges, including two incompetent judges, which declared the retention election statute constitutional, is therefore void. Therefore, obviously as a result, the decision in the Higgins case, supra, was an unlawful precedent when followed in the Hooker case, infra, and therefore, the Hooker case cannot be the authority for the constitutionality of the retention election statute, and as a result, neither case can be cited as authority under the stare decisis doctrine. Moreover, this Honorable Court is confronted by the fact that the opinion of the Court of Appeals in this case is likewise void because two of the three judges composing the majority were likewise constitutionally incompetent because they had been elected under the retention election statute and therefore under Article VI, Section 11, Tenn. Code Ann. 17-2101, Supreme Court Rule 10, Canon 2, they were disqualified because they have an interest in the subject matter of the case. The pleadings in this case show that said judges were requested to recuse themselves and advised that this party could not consent to their presiding in this case. Nonetheless, Judges Franks and Haynes declined to disqualify themselves and thereby violated this partys Due Process rights under both the Federal and State Constitutions. Consequently, said judges can be held accountable for that circumstance in other venues because said judges acted

without jurisdiction as they willfully and intentionally, for their own benefit, violated the law as a consequence of the fact that is undeniable that Judges Franks and Haynes have an obvious interest in the subject matter of this lawsuit and said judges are aware of this fact without being told by this lawyer or any other. This lawyer, who loves the law and is A Friend of the Constitution, has been guided in this matter by the opinion of the Supreme Court of Tennessee in the case of Harrison v. Wisdom, 54 Tenn. 96, 110 (1872). The Court in that case, relied upon the famed legal historian, Sir William Blackstone, who said that the common law of England, which is equally revered in this country, mandates that no judge may be a judge in his own case, and if a judge is a judge in his own case, that decision is void in itself. The Harrison case proclaims: The maxim [no judge may be a judge in his own case] applies in all cases where judicial functions are to be exercises and excludes all who are interested, however remotely, from taking part in their exercise. It is not left to the discretion of a judge or to his sense of decency to decide whether he shall act or not; all his powers are subject to this absolute limitation, and when his own rights are in question he has no authority to determine the cause.

As a consequence, the Court of Appeals, acting without competent judges to decide the case, had no jurisdiction to rule in this case as the Court in the Higgins case, infra, had no jurisdiction to rule in that case. The Harrison opinion further says, and all who practice law and all Your Honors at every level should know, that once the great office [of judge] becomes corrupted, when its judgments come to reflect the passions or the interests of the magistrate rather than the mandates of the law, the courts have ceased to be the conservators of the common weal, and the law itself is debauched into a prostrate and nerveless mockery.

10

With that in mind, this lawyer, under my Attorneys Oath, requests Your Honors to hold, if Your Honors decide to preside in this case, that the opinion of the Court of Appeals is void. CONCLUSION This litigant lawyer, under my oath to support the Constitution to the best of my skill and ability- so help me God- proclaims as a Friend of the Constitution that the simple fact is that any person or organization, whether it be the Governor, the Speaker of both Houses of the Legislature, any Defendant appellate judges or for that matter the judges who decided the case of State ex rel. Higgins v. Dunn, 496 S.W.2d 480, 487 (Tenn. 1973) and State ex rel. Hooker v. Thompson, 249 S.W.3d 331 (Tenn. 1996), or others like the Tennessee Bar Association and the Tennessee Business Roundtable who claim that The People are not entitled to choose their judges in a contested popular election just as they are entitled to choose their Governor and Legislators in a contested popular election, has either neglected to read the aforesaid constitutional provisions, like the Attorney General and his staff and each of the other Defendants who filed the Reply have apparently neglected to read the aforesaid provisions of the Constitution, and consequently do not know that The People have the right to choose their judges like they have the right to choose their Governor and Legislators in a contested popular election under Article X, Section 1. It should be noted that the Attorney General issued an opinion, 09-74 at page 2 (May 7, 2009), which concluded that a yes/no retention election for Governor would not be constitutional, based upon the wording of Article III. However, it is interesting to note that Article III, Section 2 provides, the Governor shall be chosen by the electors of the members of the General Assembly, [Emphasis added], whereas Article III, Section 4 provides, the

11

Governor shall be elected to hold office for four years and until a successor is elected and qualified. [Emphasis added]. In other words, the word chosen and elected are used

interchangeably as it relates to the election of the Governor and consequently, since the Attorney General reasons that the Governor cannot be retention elected based on the wording of Article III, it is hard to understand how the Attorney General differentiates between gubernatorial elections and judicial elections and concludes that Governors cannot be retention elected while claiming judges can be retention elected when under Article X, Section 1 judges must likewise be chosen. In fact, under Article X, Section 1, all elected officials must be chosen and therefore, it is obvious that retention elections for any public officers are unconstitutional and, respectfully, this Honorable Court should so hold and restore, under your Oaths of Office, the rights of the qualified voters to choose and elect all the judges of this State. Otherwise, in the alternative, if the Attorney General did not neglect to read the aforesaid provisions of the Constitution and did know that The People have the right to choose their judges like they have the right to choose their Governor and Legislators in a contested popular election, then any ordinary person, in all fairness, could believe that the Attorney General and the other aforesaid persons, including all appellate judges who are Defendants in this case, for selfish reasons or political benefit or unlawful purposes, have determined, for their own benefit, to DISHONOR the Constitution and the Rule of Law. Furthermore, the retention election statute deprives the voters of each Grand Division and/or the Middle, Eastern, and Western Sections of their constitutional rights under Article VI, Section 4 and Article X, Section 1 to elect and choose their appellate judges. Local

12

autonomy is the essence of legislative representation, and, even more importantly, it is the essence of judicial justice, which is based on the idea that people should be judged by the judges that reside in the Circuit or District where The People reside, so that the judges can be held accountable in a political sense by The People whose cases they have judged. The fact is that the cases that come up from the circuit courts and criminal courts from the diverse Sections, whether it be Middle, East, or West, are assigned to the District from which the claims were litigated in the lower courts. In other words, Middle Tennessee civil and criminal cases on appeal are decided by the Middle Tennessee Section unless there is some overriding reason to do otherwise. Therefore, for the reasons set out herein, Judge Bivins, under the Constitution, could only be elected and/or chosen by the voters of the Middle Section and therefore, in accordance with the statute, Tenn. Code Ann. 17-4-101 et seq., Judge Bivins has been unconstitutionally seated and should be forthwith removed by the Legislature under Article VI, Section 6. Moreover, the decision by the Court of Appeals is void for the reason that two of the three judges were constitutionally incompetent to render a decision because Judges Franks and Haynes have repeatedly been retention elected and therefore have an undeniable interest in the constitutionality of the retention election statute, Tenn. Code Ann. 17-4-101 et seq., and consequently, said judges cannot be a judge in their own case for the reasons set out above and best stated by the holding in the Harrison case, supra. Therefore, it is respectfully submitted that since the opinion of the Court of Appeals is void because it is undeniable that Judges Franks and Haynes had a self-interest in the holding in violation of Article VI, Section 11, Tenn. Code Ann. 17-2-101 et seq., and Supreme Court Rule 10, Canon 2, then it would appear that this Honorable Court must rule on the question of whether said judges are disqualified

13

under the mandates of Article VI, Section 11, Tenn. Code Ann. 17-2-101 et seq., and Supreme Court Rule 10, Canon 2 and if so, then it would appear, that this case should be remanded back to the Court of Appeals so that constitutionally competent judges can be appointed to preside in this case. Otherwise, if Your Honors decide to proceed, the members of this Honorable Court cannot honorably rely upon the decision in Higgins, supra, because the opinion in Higgins was void because Judges McClanless and Chattin, two of the four judges comprising the majority, had an interest in the subject matter of that case as they were potential retention election candidates in 1974 and were therefore disqualified to address the constitutional issue as the 1971 retention election statute applied to judges of the Supreme Court as well as to judges of the Court of Appeals. Nonetheless, Judges McClanless and Chattin did address the issue, and as a consequence, the judicial tyranny that deprives The People of our constitutional rights continues to haunt us today. It began with the 1973 holding that retention elections for both Supreme Court and appellate judges are constitutional. Consequently, for forty years litigants in both the civil and criminal Courts of Appeal in this State have been deprived of Due Process of Law and for that reason, this lawyer has spent many years in the public interest challenging that circumstance. Regardless of the consequences, intended or unintended, the integrity of the Constitution cannot by honest men and women be compromised without reauthorizing judicial tyranny at the expense of the pursuit of happiness and the Oaths of Office of judges and lawyers alike. The Tennessee Business Roundtable, in their amicus curiae brief, forecasts that there will be chaos if this Honorable Court holds the retention election statute unconstitutional . That

14

claim is based on the legendary rule that if a statute is unconstitutional, it is void ab initio, Norton v. Shelby County, 118 U.S. 425 (1886), and under the case of Board of Education v. Shelby County, 339 S.W.2d 569, 584 (1960), which held the existence of unconstitutional legislation, for any period of time, even after the parties have accepted the same and had rights determined thereunder by the courts, cannot clothe such invalid laws with the mantle of validity. See Edwards v. Allen, 216 S.W.3d 278, 291 (Tenn. 2007). Therefore, it would appear from the amicus curiae brief that the Tennessee Business Roundtable prefers judicial tyranny to addressing the difficult problems that have occurred as a consequence of that circumstance, which resulted from the Higgins decision. Unhappily, that decisions was made by judges who dishonored their own Oath of Office for their own benefit. Furthermore, it would appear that the Tennessee Business Roundtable, claiming to be A Friend of the Court is urging the members of this Honorable Court to violate your Oaths of Office and to perpetuate judicial tyranny in order to avoid the forecasted chaos. However, regardless of the consequences, the government of this State and The People of this State cannot pursue happiness if its judiciary is willing to turn away from the plain truth and the integrity of the Constitution. The Constitution is the beacon light of our republican form of government. What would appear to the Tennessee Business Roundtable as chaos, can be addressed and, no matter how temporarily painful, will be manageable. However, if this Honorable Court makes a

decision that enthrones the power of the Legislature to violate the rights of The People to choose and elect their public officials, which is the essence of democracy and is the centerpiece of the Constitution, thereby ignoring the plain language of the Constitution and

15

rendering it irrelevant, then the Rule of Law, in this lawyers opinion, is in jeopardy and may not survive in our Great State.

16

Respectfully submitted,

____________________________ JOHN JAY HOOKER, BPR #005118 115 Woodmont Blvd. Nashville, Tennessee 37205 Phone (615) 269-6558 Cell (615) 479-6531 Fax (615) 383-6036 johnjayhooker@hpeprint.com 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 General Public Interest Division Office of the Attorney General P.O. Box 20207 Nashville, Tennessee 37202 William A Blue, Jr. Constangy, Brooks, and Smith, LLP 401 Commerce Street, Suite 700 Nashville, Tennessee 37219 Jacqueline B. Dixon Allan F. Ramsaur Tennessee Bar Association Tennessee Bar Center 221 4th Avenue North, Suite 400 Nashville, TN 37219-2198 Patricia Head Moskal Edmund S. Sauer Bradley Arant Boult Cummings, LLP 1600 Division Street, Suite 700 P.O. Box 340025 Nashville, TN 37203 On this the ____ day of April 2013. ________________________ John Jay Hooker 17

APPENDIX Tenn. Const. Art. I, 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. Tenn. Const. Art. IV, 1 Every person, being eighteen years of age, being a citizen of the United States, being a resident of the state for a period of time as prescribed by the General Assembly, and being duly registered in the county of residence for a period of time prior to the day of any election as prescribed by the General Assembly, shall be entitled to vote in all federal, state, and local elections held in the county or district in which such person resides. All such requirements shall be equal and uniform across the state, and there shall be no other qualification attached to the right of suffrage. Tenn. Const. Art. VI, 3 The judges of the Supreme Court shall be elected by the qualified voters of the state. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Every judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the state for five years. His term of service shall be eight years. Tenn. Const. Art. VI, 4 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. Every Judge of such Courts shall be thirty years of age, and shall before his election, have been a resident of the State for five years and of the circuit or district one year. His term of service shall be eight years. Tenn. Const. Art. VI, 6 Judges and attorneys for the state may be removed from office by a concurrent vote of both Houses of the General Assembly, each House voting separately; but two-thirds of the members to which each House may be entitled must concur in such vote. The vote shall be determined by ayes and noes, and the names of the members voting for or against the judge or attorney for the state together with the cause or causes of removal, shall be entered on the journals of 18

each House respectively. The judge or attorney for the state, against whom the Legislature may be about to proceed, shall receive notice thereof accompanied with a copy of the causes alleged for his removal, at least ten days before the day on which either House of the General Assembly shall act thereupon. Tenn. Const. Art. VII, 1 . . . The General Assembly may provide alternate forms of county government including the right to charter and the manner by which a referendum may be called. The new form of government shall replace the existing form if approved by a majority of the voters in the referendum. . . .

Tenn. Const. Art. VII, 4 The election of officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct. Tenn. Const. Art. VII, 5 Elections for judicial and other civil officers shall be held on the first Thursday in August, one thousand eight hundred and seventy, and forever thereafter on the first Thursday in August next preceding the expiration of their respective 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 other executive officers shall be computed from the fifteenth of January next after the election of the governor. No appointment or election to fill 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 qualified. No special election shall be held to fill a vacancy in the office of judge or district attorney, but a the time herein fixed for the biennial election of civil officers, and such vacancy shall be filled at the next biennial election recurring more than thirty days after the vacancy occurs. Tenn. Const. Art. X, 1 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, take an oath to support the Constitution of this state, and of the United States, and an oath of office. Tenn. Const. Art. XI, 3 Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives, and if the same shall be agreed to by a 19

majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals with the yeas and nays thereon, and referred to the General Assembly then next to be chosen; and shall be published six months previous to the time of making such choice; and if in the General Assembly then next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by two-thirds of all the members elected to each house, then it shall be the duty of the General Assembly to submit such proposed amendment or amendments to the people at the next general election in which a governor is to be chosen. And if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor, voting in their favor, such amendment or amendments shall become a part of this Constitution. When any amendment or amendments to the Constitution shall be proposed in pursuance of the foregoing provisions the same shall at each of said sessions be read three times on three several days in each house. The Legislature shall have the right by law to submit to the people, at any general election, the question of calling a convention to alter, reform, or abolish this Constitution, or to alter, reform or abolish any specified part or parts of it; and when, upon such submission, a majority of all the voters voting upon the proposal submitted shall approve the proposal to call a convention, the delegates to such convention shall be chosen at the next general election and the convention shall assemble for the consideration of such proposals as shall have received a favorable vote in said election, in such mode and manner as shall be prescribed. No change in, or amendment to, this Constitution proposed by such convention shall become effective, unless within the limitations of the call of the convention, and unless approved and ratified by a majority of the qualified voters voting separately on such change or amendment at an election to be held in such manner and on such date as may be fixed by the convention. No such convention shall be held oftener than once in six years.

Tenn. Const. Art. XI, 9 A charter or amendment may be proposed by ordinance of any home rule municipality, by a charter commission provided for by act of the General Assembly and elected by the qualified voters of a home rule municipality voting thereon or, in the absence of such act of the General Assembly, by a charter commission of seven (7) members, chosen at large not more often than once in two (2) years, in a municipal election pursuant to petition for such election signed by qualified voters of a home rule municipality not less in number than ten (10%) percent of those voting in the then most recent general municipal election. Tenn. Code Ann. 16-5-102

20

The court of criminal appeals shall be composed of twelve (12) judges, of whom no more than four (4) shall reside in any grand division of the state. Each judge shall not be less than thirty (30) years of age and shall have been a citizen and resident of the state for at least five (5) years prior to appointment or election under this chapter. The judges shall be duly licensed to practice law in this state.

Tenn. Code Ann. 16-5-103(a) The judges of the court of criminal appeals shall be elected by the qualified voters for a full term of eight (8) years at the same time the regular judicial election is held in this state for the judges of the other courts of record.

Tenn. Code Ann. 17-4-101 et seq. It is the declared purpose and intent of the general assembly by the passage of this chapter to: (1) Assist the governor in finding and appointing the best qualified persons available for service on the appellate courts of this state, and to assist the electorate of this state in electing the best qualified persons to the courts; (2) Better insulate the judges of the courts from political influence and pressure; (3) Improve the administration of justice; (4) Enhance the prestige of and respect for the courts by minimizing the necessity of political activities by appellate judges; and (5) Make the courts less political. Tenn. Code Ann. 17-4-112 (a)(1) When a vacancy occurs in the office of an appellate court after July 1, 2009, by death, resignation or otherwise, the governor shall fill the vacancy by appointing one (1) of the three (3) persons nominated by the judicial nominating commission, or the governor may require the commission to submit one (1) other panel of three (3) additional nominees. Within sixty (60) days following receipt of the additional panel of nominees, the governor shall fill the vacancy by appointing any one (1) of the six (6) nominees certified by the commission. Tenn. Code Ann. 17-4-114(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 placed on the ballot:

..................... 21

Shall (Name of Candidate) be retained or replaced in office as a Judge of the (Name of the Court)? _____ Retain OR _____ Replace. ..................... Cleveland Surgery Ctr., L.P. v. Bradley Cnty. Mem'l Hosp., 30 S.W.3d at 282 Hatcher v. Bell, 521 S.W.2d 799, 803 (Term. 1974) Barrett v. Term. Occupational Safety and Health Review Comm'n, 284 S.W.3d 784, 787 (Tenn.2009) Gaskin v. Collins, 661 S.W.2d 865, 867 (Tenn.1983) Cleveland Surgery Ctr., L.P. v. Bradley County Mem'l Hosp., 30 S.W.3d at 282 Barrett v. Tenn. Occupational Safety and Health Review Comm'n, 284 S.W.3d at 787 State v. Martin, 940 S.W.2d 567, 570 (Tenn.1997) State ex rel. Higgins v. Dunn, 496 S.W.2d 480, 487 (Tenn. 1973) Shelby Cnty. v. Hale, 200 Tenn. 503, 511, 292 S.W.2d 745, 748^9 (1956) Vollmer v. City of Memphis, 792 S.W.2d 446, 448 (Tenn. 1990) Patterson v. Washington County, 136 Tenn. 60, 66, 188 S.W. 613, 614 (1916) Estate of Bell v. Shelby County Health Care Corp., 318 S.W.3d 823, 835 (Tenn. 2010) State ex rel. Hooker v. Thompson, 249 S.W.3d 331 (Tenn. 1996) Harrison v. Wisdom, 54 Tenn. 96, 110 (1872) Norton v. Shelby County, 118 U.S. 425 (1886) Board of Education v. Shelby County, 339 S.W.2d 569, 584 (1960) Edwards v. Allen, 216 S.W.3d 278, 291 (Tenn. 2007) 22