I, s- e; I

'. +I ; ' _;.

IN THE CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE f :;
AT NASHVILLE
JOHN JAY HOOKER, lawyer, WALTER BRUMIT,.
ANTHONY GODLlEB, HOLLY SPANN, as qualified voters
on behalf of themselves and other qualified voters,
.l\pplicants for Declaratory Judgment,
v.
CHIEF JUSTICE GARY WADE ON BEHALF OF HIMSELF AND
ALL JUDGES WHO HAVE BEEN APPROVED FOR RETENTION-)
ELECTION BY THE JUDICIAL PERFORMANCE EVALUATION )
COMMISSION IN BOTH THEIR OFFICIAL AND INDIVIDUAL )
CAPACITIES INCLUDING SUPREME COURT JUDGES, )
CORNELIA A. CLARK, SHARON G. LEE, AND COURT OF )
APPEALS JUDGES, ANDY D. BENNED, FRANK G. )
CLEMENT, RICHARD H. DINKINS, THOMAS R. FRIERSON II, )
JOHN WESTLEY MCCLARTY, J. STEVEN STAFFORD, )
CHARLES D. SUSANO, D. MICHAEL SWINEY, AND )
CRIMINAL COURT OF APPEALS JUDGES JEFFREY S. )
BIVINS, ALAN E. GLENN, CAMILLE R. MCMULLEN, )
NORMA MCGEE OGLE, ROGER A. PAGE, D. KELLY )
THOMAS, ROBERT W. WEDEMEYER, JOHN EVERED )
WILLIAMS, JAMES CURWOOD WID, THOMAS T. )
WOODALL, )
GOVERNOR BILL HASLAM, LT. GOVERNOR RON RAMSEY, )
HOUSE SPEAKER BETH HARWELL, )
ADORNEY GENERAL ROBERT E. COOPER, IN HIS OFFICIAL )
AND INDEPENDENT CAPACITIES ON BEHALF OF ALL )
RESPONDENTS AND INTERESTED STATE OFFICIALS, )
INCLUDING ALL MEMBERS OF THE JUDICIAL )
PERFORMANCE EVALUATION COMMSSION, )
CHAIRMAN JUDGE ROBERT L. JONES, MICHAEL E. TANT, )
CHRISTOPHER CLEM, HENRIEDA GRANT, J. GREGORY )
GRISHAM, HON. ROBERT MONTGOMERY, JR., )
HON. J. MICHAEL SHARP, RENATA SOTO, JOSEPH A. )
WOODRUFF, DAVID HAINES ESO, )
SECRETARY OF STATE TRE HARGED )
COORDINATOR OF ELECTION MARK GOINS, )
)
Respondents / Defendants. )
20 I JAN 27 A 1 10: 41
ilICH,'. KJ 1\ CL[;, r\
C
No. ____ _
APPLICATION FOR DECLARATORY JUDGEMENTS AND INJUNCTIONS
1. An application for a hearing for a Declaratory Judgment involving the "highest public interest, to be set as
soon as possible, under TCA 29-9-104; Tennessee Rules of Civil Procedure, Rule 57, 65, that declares
that the recommendations of the Judicial Performance Evaluation Commission, made on January 1 ih
2014, regarding the Defendant Chief Justice and all other Defendant Supreme Court, Court of Appeals
and Court of Criminal Appeals Judges are "null and void," in violation TCA 17-4-201 and Supreme Court
Rule 27, and the January 15
th
2014 Final Order filed by Judge Hamilton Gayden, in the case of Hooker
et.al. vs. Lt. Governor Ron Ramsey et.a/., holding that the seating of the members Commission is "invalid"
and "discriminatory" in violation of both the Federal and State Constitutions.
BACKGROUND
2. At a meeting on January 17th 2014, the Commission authorized each Judge to file a "declaration of
candidacy" with a recommendation to be placed on a Retention-Election ballot for the August 2014
election, under the authority of TCA 17-4-101, 115(a)(2)et.seq. However, said recommendations are
"invalid" and "unconstitutional" under the aforesaid provisions and Judge Gayden's Final Order.
3. On January 17th 2014 the Defendant members of the Commission voted to "recommend" each of the
aforesaid appellate Judges to seek Retention-Election by filing a Declaration of candidacy as required by
the statute on or before February 6
th
2014. The Commission so acted, notWithstanding the fact that the
Commission is unlawfully composed of seven men and two women, in violation of the approximation
population provisions of TCA 17-4-201(b) and Supreme Court Rule 27, 2.02. The Commission members
proceeded upon the advice of Deputy Attorney General Janet Kleinfelter of the Attorney General's
Office, notwithstanding the request from this lawyer and the other Plaintiffs and members of the public,
who are qualified voters, representing themselves, and other men and women who are likewise qualified
voters not to do so. NotWithstanding, Deputy Attorney General Kleinfelter, did so, in direct violation of
the Final Order of Judge Hamilton Gayden, First Circuit Court Davidson County declaring that the
Commission is "invalidly composed" under said provisions including the Fourteenth Amendment.
4. The Commission proceeded as aforesaid on January 17, 2014, upon the advice of the Attorney General's
Office, to act regarding the Commissions' meeting, held on December 6
th
2013, in direct violation of the
Final Order of Judge Hamilton Gayden, issued on January 15
th
2014. The Attorney General made said
recommendation notwithstanding Judge Gaydon's order had not been appealed at the time of the
January 1ih 2014 hearing. The fact is, Judge Gayden's Final Order had held, under the Due Process and
Equal Protection Clauses of the United States Constitution and Tennessee Constitution that the
Commission, by it having "seven men and two women," has "discriminated" against the female and black
populations of the State of Tennessee. The fact is this circumstance resulted from the fact that the three
Judges and three Lawyers on the Commission violated the Code of Judicial Conduct and or the Rules of
Professional Responsibility and closed their "eyes and ears" to reality.
APPLICATION FOR INJUNCTIONS
5. An application for an injunction based on the Commission's violation of TCA 17-4-201, Supreme Court
Rule 27 and Judge Gaydon's Final Order, to prohibit the Commission from taking any action with respect
to said "invalid, null and void" appointments. The Injunction should prohibit the Commission from
issuing any report, final or otherwise, to the Public, or any office of the Government, in an effort to have
said Defendant Judge's names appear on any ballot in a Retention Election.
6. An application for an Injunction to prohibit the members of the Supreme Court and other Appellate
Judges from filing a "declaration of candidacy" on or before February 6
th
2014, based on the
Commission's actions of January 17th 2014, or thereafter.
2
7. An application for an Injunction prohibiting the Commission from taking any further action regarding said
Judges until and unless the Commission is composed, in accordance with the aforesaid statutes and
Supreme Court Rule 27.
8. An application for an Injunction to prohibit the Coordinator of Elections and the Secretary of State from
accepting or giving effect to any Declaration of Candidacy filed, or to be filed, for the purpose of placing
the name of any Appellate Judge on a ballot in a Retention Election in August of 2014.
ARGUMENT
9. The Judicial Performance Evaluation Statute TCA 17-4-201 et seq. and Supreme Court Rule 27 are in full
force and effect, notwithstanding the fact the members of the Judicial Performance Evaluation
Commission, where appointed by Lt. Governor Ron Ramsey and House Speaker Beth Harwell, in violation
of said provisions requiring gender approximations, as a consequence of the fact that the State of
Tennessee is composed of approximately 52% females and 48% percent males. However, it is obvious
that the appointment of "seven male and two female" Commissioners, violated said provisions and
"intentionally and arrogantly," discriminated against the female voters of this State. Consequently, Judge
Gayden opined from the bench in the case of Hooker et.al. vs. Lt. Gov. Ron Ramsey et. al., that the
Commission is void ab initio.
10. Therefore, this Lawyer under my attorney's oath as a "Public Citizen," in keeping with the Rules of the
Tennessee Board of Professional Responsibility, has a duty as a lawyer and a citizen to "reform the
government," under Article I 1, Article I 23 and Article XI 16, of the Tennessee Constitution by
seeking, "redress of grievances" on behalf of the qualified voters of the State and specifically on behalf of
the females of this State, by challenging the "official conduct," as well as the individual conduct of the
Defendants, who individually and collectively have "abused the power," of their offices. At the meeting
of January 1ih 2014 it appeared to Plaintiffs in this case, who were arbitrarily deprived of their
constitutional rights under Article I 23, when the Commission limited their public presentation to three
minutes each, that the three Judges and the three lawyers on the Commission apparently didn't know
the difference between "right and wrong." If they did the Judges and Lawyers on the Commission
demonstrated that they had no "shame" in accommodating the political establishment. Furthermore, by
recommending all the appellate Judges for Retention-Election, they did this notwithstanding the fact that
these Judges and lawyers well knew they were unconstitutionally seated. Moreover, these high placed
public officials "thumbed their nose" at Judge Gayden's Final Order despite the fact that Judge Gayden,
out of respect, for the members of the Commission, had declined to enter an injunction prohibiting them
from doing exactly what they did.
11. Likewise, Plaintiffs Brumit, Gottlieb and Spann have a right under Article I 1 to "reform the
Government," and consequently all of the Plaintiffs have "legal standing" and a right to bring this lawsuit
in order to protect our Constitutional right to vote, and the Constitutional right of other men and womel')
to vote. We furthermore have a right to claim, if said Judges file a Declaration of Candidacy, based upon
the actions of the Commission, "for their own benefit" said Judges will be in violation of their own Rule
27 and In violation of TCA 17-4-201(b) [race and gender], and the Constitutions of the United States and
Tennessee and the order in the case of Hooker et.al. vs. Lt Governor Ron Ramsey et.al., wherein Judgr:
Gayden held that the "Commission is invalid" and the actions of the Commission are void ab initio.
Consequently, said Judges could be subject to criminal charges, under the Official Misconduct statute for
violating the law "for their own benefit."
12. Moreover, the Attorney General of Tennessee, who is "conflicted in this case," because he was
"appointed" by members of the Supreme Court, and therefore has an, "interest" in the subject matter of
3
the case, could also be subject to criminal charges for advising the members of the Commission that the
members of the Commission should, "ignore" Judge Gayden's order and the provisions of TCA 17-4-
201(b}, and Supreme Court Rule 27. Furthermore, it would appear that the Attorney General "conspired"
with the members of the Commission to recommend all of the appellate judges seeking
recommendation, so as to permit them to file a Declaration of Candidacy to be Retention-Elected in
August of 2014.
13. In addition, as a consequence, it appears to the Plaintiffs in this case that all of the Judges, Commission
Members, and the Attorney General, "knowingly and intentionally," "for their own benefit," have
determined to "contemptuously" violate Judge Gayden's January 15
th
2014 Final Order, and the Due
Process Clause of the Constitution of Tennessee, and the Equal Protection clause of the Fourteenth
Amendment of the Constitution of the United States. This circumstance may require the Plaintiffs, if
necessary, to go to the Federal Courts to "enforce" the "one person one vote" requirement under the
Equal Protection clause of the Fourteenth Amendment, for the benefit of the female citizens of this
State, in accordance with the holding in Baker vs. Carr, 369 U.S. 186 (1962) .
14. Unhappily, it is apparent to the Plaintiffs that we as private citizens have a duty to claim on behalf of
other private citizens, in our efforts to support the "integrity" of the Constitution, that the Defendant,
Governor Haslam, who has a "sworn duty" to see that that the "laws are faithfully executed," and that he
will violate his oath of office if he does not forthwith take action to declare that the Commission is
unlawfully seated. Therefore, Governor Haslam has a duty under his oath of office and the Constitution
to prohibit the Commission from taking any action, until and unless the Commission is properly
constituted regarding "race and gender". The fact is the State of Tennessee not only has a judicial crisis,
it has a Constitut ional crisis and even worse, a moral crisis that is being " covered up" by all three
branches of government.
15. Consequently, it should be noted Lt. Governor Ron Ramsey and House Speaker Beth Harwell, as part of a
" pattern of conduct," regarding the appointment of Commissioners in keeping with past actions
apparently, intentionally violated the TCA 17-4-201(b)6) and Supreme Court Rule 27 when they
unlawfully, acting individually and collectively, appOinted seven men and two women to the Commission
in direct violation of the aforesaid provisions. As a result the Lt . Governor and the Speaker of the House,
under their oath of office, are forthwith required to "repudiate" the unconstitutional actions of the
Commission as it is presently constituted. Accordingly, the Plaintiffs seek relief from this
"contemptuous" and unlawful type of conduct that has defrauded THE PEOPLE of our constitutional
rights, unfortunately condoned and instigated by the Tennessee Bar Association and the big-money
campaign contributors for forty years, that involves the "integrity of our entire government" and the
"integrity" of the individuals herein named, as potential Defendants for their conduct in violating the
Offici a I Misconduct Statute.
RELIEF
16. The Plaintiffs pray that this Honorable Court will issue a Declaratory Judgment declaring that the
members of the Commission are unlawfully seated and were incompetent to act, ab initio, and therefore
any and all actions taken by the Commission be declared unlawful in violation of the State and Federal
Constitutions and TCA 17-4-201 and Supreme Court Rule 27.
17. The Plaintiffs pray that this Honorable Court will issue an Injunction prohibiting any further action by the
Commi ssion designed to facilitate the placement of the Defendant Judges names on a Retention-Election
ballot in August 2014.
4
18. The Plaintiffs pray that this Honorable Court will issue an Injunction prohibiting the
Coordinator of Elections and the Secretary of State from placing the names of any of the
aforesaid Judges on a Retention-Election ballot in August of 2014.
19. The Plaintiffs pray that this Honorable Court will enter any order that the Court deems
appropriate under the aforesaid claims to protect the integrity of the Constitutions and the
laws of this State.
20. The Plaintiffs pray that this Honorable Court will issue an order prohibiting the Defendant
Judges from filing a Declaration of Candidacy, to run in a Retention-Election to be held in
August of 2014 on or before the qualifying deadline of February 6
th
2014.
21. The Plaintiffs pray that this Honorable Court will issue an order setting the matter, involving
the highest public interest, for a hearing at the earliest possible time convenient to the
Court.
Respectfully submitted:
KER, Pro-Se BPR #005118
mo Blvd.
shville, Tennessee 37205
Phone (615) 269-6558
Cell (615) 479-6531
Fax (615) 383-6036

LUir 4t1/:;j-
WALTER BRUMIT, Pro-Se
ANTHONY GOTILlEB, Pro-Se
PO Box 1770
21 Vaughns G p.
Nashville, T 7205
(615) 812-2551
5
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing has been sent via First Class mail,
postage prepaid, email and or fax, to:
Attorney General Robert Cooper, Jr.
Attorney General and Reporter
on behalf of all State Defendants
Janet Kleinfelter
Deputy Attorney General
Public Interest Division
Office of the Attorney General
P.O. Box 20207
Nashville, TN 37202
On this the 27 Day of January, 2014
Nashville, Tennessee 37205
Phone (615) 269-6558
Cell (615) 479-6531
Fax (615)383-6036
johnjayhooker@hpeprint.com
6
APPENDIX
United States Constitution: Fourteenth Amendment: Section 1. All persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
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. Article I, 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.
Tenn. Const. Article XI, 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.
Tenn. Canst. Art. I, 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.
Tenn. Code Ann. 17-4-101 et seq.
to:
It is the declared purpose and intent of the general assembly by the passage of this chapter
(1) Assist the governor in finding and appointing the best qual ified 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; .. .
Tenn. Code Ann. 17-4-115(a)(2).
. An appellate judge who seeks election for a full eight-year term but who was
to the office after the first Thursday in February before the next regular August election
occurring more than (30) days after occurrence of the vacancy that was filled by the
Judge must qualify by filing with the state election commission a written
ec aratlon 0 candidacy. The declaration must be filed not later than the first Thursda occur '
after After timely filing the declaration, any
raw must e filed With the state election commission not later than twelve
7
o'clock (12:00) noon prevailing time on the seventh day after the deadline for filing the declaration
of candidacy.
Tenn. Code Ann. 17-4-116 Judges And Chancellors -Judicial Nomination and Performance
Evaluation
(a) If an incumbent appellate court judge, whether apPointed or elected, fails to file a
declaration of candidacy for election to an unexpired term or to a full eight-year term within the
prescribed time, or if the judge withdraws as a candidate after receiving a recommendation "for
retention" from the judicial performance evaluation commission and filing the required declaration
of candidacy, then a vacancy is created in the office upon expiration of the incumbent's term
effective September 1. In this event, the vacancy shall be filled by the governor in accordance with
17-4-112 or 17-4-113. The appointment is subject to the action of the electorate in the next
regular August election. The aPPointee shall file a declaration of candidacy and be voted on oS
provided in 17-4-LA and 17-4-115 ...
lerm. Code Ann. 17-4-201 (2013) Judicial performance evaluation program.
(a) (1) By rule, the supreme court shall establish a judicial performance evaluation program for
appellate court judges. The purpose of the program shall be to assist the public in evaluating the
performance of incumbent appellate court judges. The judicial performance evaluation commission,
established pursuant to subsection {b}, shall perform the required evaluations. The commission
shall make a recommendation either "for retention" or "for replacement" of each appellate court
judge; provided, that the commission shall not evaluate or make any retention recommendation
with regard to any appellate judge whose term of office is abbreviated because of death,
resignation or removal. Furthermore, the commission shall not include within the final report,
publicly disclosed pursuant to subsection (c), an evaluation or retention recommendation for any
appellate judge whose term of office is abbreviated because of death, resignation or removal or
who fails to timely file a declaration of candidacy as required by 17-4-114{a) or 17-4-1l5(a),
unless the judge is a candidate for another office subject to evaluation under this section.
(2) If an incumbent appellate judge holds office for one (1) year or more preceding the deadline
for filing the required declaration of candidacy for either an unexpired term or a full eight-year
term, then evaluation procedures shall be based on the results of any evaluations performed
throughout the judge's service on the appellate bench, evaluation surveys, personal information
contained in an approved self-reporting form and such other comments and documents as the
commission receives from any other reliable source. However, if an incumbent judge holds office for
less than one (I) year preceding the deadline, then evaluation procedures shall be based on
personal information contained in the self-reporting form, the judge's application to the judicial
nominating commission and such other comments and documents as the commission receives from
any other reliable source.
(3) Information collected pursuant to subdivision (a){2) shall be confidential and shall be publicly
disclosed only in the manner permitted by subsection (c). Upon request, each member of the
judicial performance evaluation commission shall be given complete access to any individual survey,
form, application, comment and document submitted, conveyed or compiled for the purpose of
judicial evaluation; however, each such member must protect the confidentiality of the information
8
as well as the anonymity of survey respondents.
(4) (A) At least thirty (30) days prior to the deadline for filing a declaration of candidacy required
by 17-4-114{a)(1) or 17-4-11S(a)(l), the judicial performance evaluation commission shall
provide an incumbent appellate judge with a draft of the commission's evaluation and shall provide
the judge with a reasonable opportunity to comment or respond either personally or in writing.
(8) As soon as is reasonably practicable under the circumstances, but not less than three (3)
prior to the deadline for filing a declaration of candidacy required by 17-4-114(a)(2) or 17-4-
115(a)(2), the judicial performance evaluation commission shall provide an incumbent appellate
judge with a draft of the commission's evaluation and shall provide the judge with a reasonable
opportunity to comment or respond either personally or in writing.
(b) (I) The judiCial performance evaluation commission shall be composed of nine (9) members.
(2) Tf"Je speaker of the senate shall appoint four (4) of the members, of whom one (1) shall be a
state court judge, two (2) shall be attorney members and one (1) shall be a non-attorney. No more
than two (2) of those apPointed shall reside in the same grand division.
(3) The speaker of the house of representatives shall appoint four (4) of the members, of whom
one (1) shall be a state court judge, one (l) shall be an attorney, and two (2) shall be non-attorney
members. No more than two (2) of those appointed shall reside in the same grand division.
(4) The speaker of the senate and the speaker of the house of representatives shall jOintly appoint
one (1) state court judge.
(5) The supreme court's evaluation procedure may permit the judicial performance evaluation
commission to perform an evaluation with less than the full membership in panels, but the full
commission shall approve the evaluation.
(6) The appointing authorities for the judicial performance evaluation commission shall make
that approximate the population of the state with respect to race and gender. In
appointing attorneys to the commission, the speakers shall receive, but shall not be bound by,
recommendations from any interested person or organization.
(7) To stagger the terms of judiCial performance evaluation commission members beginning July
I , 2009, the three (3) non-attorney members on the commission shall serve transition
t
thermths, the(3t)hree (3) state court judges on the commission shall serve four-year transition terms and
e ree attorney membe th . . ,
. rs on e commiSSion shall serve two-year transition terms At the
conclusion of the transition terms, each regular term of a commission member sh ..
A vacancy on the commission shall be filled i th . . all be SIX (6) years.
remainder of the unexpired term. n e same manner as the anginal appointment for the
(8) No commission member shall serve more than two (2) terms I I d. .
, nc u mg any partial term.
(9) A member of the judicial performance I . ...
appellate judgeship that becomes availabl eva uatloln commission IS not eligible to seek an
e as a resu t of, or related to, the commission's
9
recommendation for replacement of an incumbent appellate judge as set out in subsection (a) .
(c) (1) The judicial performance evaluation program shall require publication and disclosure of a
final report. The final report shall not include any individual record or evaluation, but may include,
for each appellate judge, the individual final scores for the survey results. The final report shall be
made available for public inspection on the first Thursday in March preceding the regular August
election. On the first Sunday in July preceding the regular August election, the final report shall be
published in a daily newspaper of general circulation in the Tri-Cities area, Knoxville, Chattanooga,
Nashville, Jackson and Memphis. The final report for each appellate court judge may not exceed six
hundred (600) words.
(2) As soon as is reasonably practicable under the circumstances, in order to assist the public in
electing the best qualified persons to the appellate courts, the commission shall cause supplemental
final reports to be published as may be necessitated by the filing of declarations of candidacy,
required by 17-4-114(a)(2) or 17-4-115(a)(2).
(d) The judicial performance evaluation program, including the public report and the ballot
information, shall apply to each appellate court judge who seeks to serve a complete term after July
1, 2009.
TCA 29-9-104. Omission to perform act.
(a) If the contempt consists in an omission to perform an act which it is yet in the power of the
person to perform, the person may be imprisoned until such person performs it.
(b) The person or if same be a corporation, then such person or corporation can be separately fined,
as authorized by law, for each day it is in contempt until it performs the act or pays the damages
ordered by the court.
TCA 39-16-402. Official misconduct.
(a) A public servant commits an offense who, with intent to obtain a benefit or to
harm another, intentionally or knowingly:
(1) Commits an act relating to the servant's office or employment that constitutes
an unauthorized exercise of official power;
(2) Commits an act under color of office or employment that exceeds the
servant's official power;
. . (3) Refrains from performing a duty that is imposed by law or that is clearly
Inherent In the nature of the public servant's office or employment;
(4) Violates a law relating to the public servant's office or employment; or
(5) Receives any benefit not otherwise authorized by law.
. (b) For purposes of subdivision (a)(2), a public servant commits an act under color of
office or employment who acts or purports to act in an official capacity or takes advantage of the
actual or purported capacity.
. . . . It is a defense to prosecution for this offense that the benefit involved was a
tnvk,alfbenef,t professional or business contact, and involved no substantial
ns 0 undermining official Impartiality.
10
(d) An offense under this section is a Class E felony.
(e) Charges for official misconduct may be brought only by indictment, presentment
or criminal information; provided, that nothing in this section shall deny a person from pursuing
other criminal charges by affidavit of complaint.
39-16-403. Official oppression.
(a) A public servant acting under color of office or employment commits an offense
who:
(1) Intentionally subjects another to mistreatment or to arrest, detention, stop,
frisk, halt, search, seizure, dispossession, assessment or lien when the public servant knows the
conduct is unlawful; or
(2) Intentionally denies or impedes another in the exercise or enjoyment of any
right, privilege, power or immunity, when the public servant knows the conduct is unlawful.
(b) For purposes of this section, a public servant acts under color of office or
employment if the public servant acts, or purports to act, in an official capacity or takes advantage
of the actual or purported capacity.
(c) An offense under this section is a Class E felony.
(d) Charges for official oppreSSion may be brought only by indictment, presentment
or criminal information; provided, that nothing in this section shall deny a person from pursuing
other criminal charges by affidavit of complaint.
SUPREME COURT Rule 6: Admission of Attorneys.
(4) Each applicant for admission shall take the following oath:
I, , do solemnly swear or affirm that I will support the Constitution of the United States
and the Constitution of the State of Tennessee, and that I will truly and honestly demean myself in
the practice of my profession to the best of my skill and abilities, so help me God.
SUPREME COURT Rule 27: Judicial Performance Evaluation Program.
Section 1. Statement of Purpose.
1.01. The work of Tennessee's appellate judges touches the lives of everyone who lives and works in
Tennessee. The quality of justice available in Tennessee's appellate courts hinges, in large measure,
on the performance of the judges who administer the system. Accordingly, the public, the bar, and
the judicial system have a vital interest in a responsive and respected appellate judiCiary.
1.02. Tennessee's appellate judiciary consists of persons who strive to administer justice to the best
of their abilities and to discharge the duties of their offices impartially and effiCiently. Tennessee's
appellate judges also share in common a commitment to improve their own judicial skills and to
improve the quality of justice administered by Tennessee's appellate courts.
103. Improving the administration of justice in Tennessee's appellate courts can best be
accomplished by instituting a program of continuous self-improvement that has the broad-based
Support of e n n ~ s s e e s appellate judges and attorneys and empowers the appellate judges, with the
assistance of their peers, to enhance and to broaden their own judiCial skills.
1.04. -:he T e n n e s s . e ~ General Assembly has enacted laws that establish a merit-based process for
selecting and retaining the members of Tennessee's three appel/ate courts. To promote informed
11
retention decisions, Tenn. Code Ann. 17-4-201{c) requires the Judicial Performance Evaluation
Commission to publish reports concerning each appellate judge seeking election to an unexpired
term or election or reelection to a full eight-year term. In addition to its primary purpose of self-
improvement, the Judicial Performance Evaluation Program must provide information that will
enable the Judicial Performance Evaluation Commission to perform objective evaluations and to
issue fair and accurate reports concerning each appellate judge's performance.
1.05. In Tenn. Code Ann. 17-4-201{a)(1), the Tennessee General Assembly has given the
Tennessee Supreme Court the responsibility to promulgate a rule establishing the judicial
performance evaluation program for appellate judges.
Section 2. Judicial Performance Evaluation Program.
2.01. In accordance with this Court's inherent supervisory authority over the court system and the
judges, and pursuant to Tenn. S. Ct. R. 11, Tenn. Code Ann. 16-3-501 and Tenn. Code Ann . 17-4-
201{a)(1}, there is hereby established a Judicial Performance Evaluation Program as part of the
judicial branch of state government .
2.02. The Judicial Performance Evaluation Program shall be administered by the Judicial
Performance Evaluation Commission established by Tenn. Code Ann. 17-4-201(b).
2.03 . The Judicial Performance Evaluation Commission shall have the responsibility for the design,
the implementation, and the day-to-day operation of the Judicial Performance Evaluation Program.
The Commission's decisions shall be consistent with this rule, and the Commission has no power to
waive or to modify any provision of this rule.
2.04. The Judicial Performance Evaluation Commission shall be administratively attached to the
Administrative Office of the Courts, but for all purposes other than administration, it shall be
considered independent of the Administrative Office of the Courts. The Administrative Office of the
Courts shall provide staff assistance to the Commission, and the Commission may, to the extent that
funds are available, retain other experts and consultants to assist with any part of its duties.
2.05. (a) All evaluations and final reports must be approved by the Judicial Performance Evaluation
Commission, but the Commission may, in its discretion, use panels to prepare interim or preliminary
reports or recommendations for consideration by the membership of the Commission.
(b) Five (5) members of the Judicial Performance Evaluation Commission shall constitute a quorum
for the transaction of any business to come before the Commission except for the final decision to
recommend the retention or replacement of an appellate judge. With regard to the
recommendation to retain or to replace an appellate judge, the quorum shall be seven (7) or more
Commission members, and the recommendation either to retain or to replace an appellate judge
shall require the assent of five (S) or more members.
(e) A Commission member who is unavoidably absent from any meeting of the Commission may
participate by teleconference or by video conference if these facilities are
reasonably available. Commission members participating by teleconference or video conference
shall be considered present for the purpose of establishing a quorum.
12
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.
(8) Knowledge and understanding of the law. In addition to other appropriate performance
measures, the Commission shall consider:
(1) understanding of substantive, procedural, and evidentiary law;
(2) attentiveness to factual and legal issues before the court; and
(3) proper application of judicial precedents and other appropriate sources of authority.
(e) Ability to communicate. In addition to other appropriate performance measures, the
Commission shall consider:
(1) clarity of bench rulings and other oral communications;
(2) quality of written opinions with specific focus on clarity and logic, and the ability to explain
clearly the facts of the case and the legal precedents at issue; and
(3) sensitivity to the impact of demeanor and other nonverbal communications.
(d) Preparation and attentiveness. In addition to other appropriate performance measures, the
Commission shall consider:
(1) judicial temperament, including courtesy to all parties and participants; and
(2) willingness to permit every person legally interested in a proceeding to be heard, unless
precluded by law or rules of court.
(e) Service to the profession and the public. In addition to other appropriate performance measures,
the Commission shall consider:
(1) efficient administration of caseload;
(2) attendance at and participation in judicial and continuing legal education programs;
(3) participation in organizations which are devoted to improving the administration of justice;
(4) efforts to ensure that the court is serving the public and the justice system to the best of its
ability and in such a manner as to instill confidence in the court system; and
13
(5) service in leadership positions and within the organizations of the judicial branch of government.
(f) Effectiveness in working with other judges and court personnel. In addition to other appropriate
performance measures, the Commission shall consider:
(1) exchanging ideas and opinions with other judges during the decision-making process;
(2) commenting on the work of colleagues;
(3) facilitating the performance of the administrative responsibilities of other judges; and
(4) working effectively with court staff.
Section 4. Evaluation Procedure for Appellate Judges.
4.01. The Judicial Performance Evaluation Program shall include the regular evaluation of the
performance of appellate judges. The evaluations shall be carried out using professionally accepted
methods to provide objective and reliable evaluations and to reduce the risk of unfair ratings and
statistical comparisons. Evaluations shall be based on sufficient data to ensure the statistical
reliability of the evaluation information.
4.02. The Judicial Performance Evaluation Program for appellate judges, in addition to being used
for self-improvement purposes, shall also be used for the evaluation required of appellate judges
seeking election to an unexpired term or election or re-election to a full eight-year term under Tenn.
Code Ann 17-4-201(b) .
Section 5. Evaluation Procedure for Appellate Judges for Retention Recommendations.
5.01. The Judicial Performance Evaluation Commission created by Tenn. Code Ann. 17-4-201(b)
shall perform evaluations of all appellate judges seeking election to an unexpired term or relection
or reelection to a full eight (8) year term for the purpose of aiding the public in evaluating the
performance of the appellate judges in accordance with the provisions of this rule.
5.02. (a) The Judicial Performance Evaluation Commission's evaluation shall be consistent with the
criteria in Section 3.01 and shall be based on the results of the evaluation surveys, on the personal
information contained in an approved self-reporting form, and on such other comments and
information as the Commission shall receive from any source.
(b) If, because of gubernatorial appointment, an appellate judge holds office less than one year
before the filing deadline of a declaration of candidacy for either an unexpired term or a full eight-
year term, and evaluation surveys are not available, the Judicial Performance Evaluation
Commission shall conduct an evaluation and make a retention recommendation using an approved
self-reporting form, the judge's application, and other reliable information.
5.03. The Judicial Performance Evaluation Commission, or a panel thereot shall conduct a public
interview with each appellate judge seeking election to an unexpired term or re-election to a full
eight-year term. The Commission's meetings and deliberations shall be public.
S.04. The Judicial Performance Evaluation Commission may accept, and in its discretion, may solicit
14
public comments concerning the performance of the appellate judges seeking election to an expired
term or election or re-election to a full eight-year term. The Commission shall provide each
appellate judge with a reasonable opportunity to respond to any information or comment received
by the Commission regarding that judge prior to the preparation of the Commission's evaluation of
that judge.
5.05. The Judicial Performance Evaluation Commission shall provide each appellate judge seeking
election to an unexpired term or election or re-election to a full eight-year term with a draft of its
evaluation and shall provide the appellate judge with a reasonable opportunity to comment or
respond either personally or in writing before the publication of the final report or supplemental
report required by Tenn. Code Ann. 17-4-201(c).
5.06. The final public report or supplemental report required by Tenn. Code Ann. 17-4- 201(c)
shall, at the appellate judge's request, include the judge's response to the Judicial Performance
Evaluation Commission's evaluation. The judge's response, which shall be in addition to the
Commission's report or supplemental report, shall not exceed 600 words.
Section 6. Confidentiality.
6.01. Evaluations conducted as part of the Judicial Performance Evaluation Program must be
conducted candidly and in strict confidence so that they may be based on reliable information and
so that the areas for improvement may be determined fairly. The disclosure of evaluation
information other than in the manner permitted by this rule or by Tenn. Code Ann. 17-4-201(c)
would be counterproductive to the goals of the performance program and would reduce the free
flow of information and responses.
6.02. All records and information obtained and maintained by the Judicial Performance Evaluation
Commission concerning the performance of individual judges shall be strictly confidential and shall
not be disclosed except as provided by statute or this rule. The Commission shall ensure the
confidentiality of information regarding the performance of all judges and shall preserve the
anonymity of all persons who may be requested to furnish evaluation information.
6.03. Records and information pertaining to the performance and evaluation of judges shall not be
disclosed except as follows:
(a) Only the individual judge being evaluated and the person or persons selected to present the data
to the judge shall be permitted to know to which judge particular information applies.
(b) The Commission may provide aggregate statistical information that does not identify specific
judges to the Administrative Office of the Courts and the Tennessee Judicial Conference for use in
the development of judicial education programs.
6.04. Except when publicly disclosed in accordance with Section 6.03, all information,
questionnaires, notes, memoranda, or other data declared confidential by this rule shall not be
admissible as evidence, nor discoverable in any action of any kind in any court or before any
tribunal, board, agency, or persons.
6.05. All records pertaining to a particular judge maintained by the Judicial Performance Evaluation
15
Commission shall be destroyed six months after the judge's death or retirement. The records shall
not be destroyed if the judge applies for or is certified as a senior judge in accordance with Tenn.
Code Ann. 17-2-302.
SUPREME COURT: Rules of Civil Procedure: Rule 57: Declaratory Judgments.
The procedure for obtaining a declaratory judgment pursuant to Tennessee Code Annotated, 29-
14-101 et seq., shall be in accordance with these rules, and the right to trial by jury may be
demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence
of another adequate remedy does not necessarily preclude a judgment for declaratory relief in
Cdses where it is appropriate. The court may order a speedy hearing of an action for a declaratory
judgment and may advance it on the calendar.
SUPREME COURT Rules of Civil Procedure: Rule 65.01: Injunctive Relief.
Injunctive relief may be obtained by (1) restraining order, (2) temporary injunction, or (3)
permanent injunction in a final judgment. A restraining order shall only restrict the doing of an act.
An injunction may restrict or mandatorily direct the doing of an act. IIII END OF APPENDIX
16
..
IN THE FIRST ClRCUlT COURT FORDA'vIDSON COUNTY, F-0
JOHN JAY HOOKER, WALTER ) 15 AHII:48
BRUMIT, abd ANTHONY )
GOTTLIEB, )
Plaintiffs,
v.
LT. GOVERNOR RON RAMSEY,
HOUSE SPEAKER BETH HARWELL,
HON.ROBERTJONEStMITCHAEL
E. TANT, CHRISTOPHER CLEM,
HENRIETTA GRANT. J. GREGORY
GIUSHAM, HON. ROBERT
MONTGOMERY, JR., BON. J
MICHAELSHABP,RENATASOTO
JOSEPH A. WOODRUFF, DAVID
BAINES, SECRETARY OF STATE
TRE HARGETT" GOVERNOR Bll.JL
HASLAM, and ATTORNEY
GENERAL ROBERT E. COOPER, JR.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
}
)
)
)
)
)
FINAL ORDER
RICHARD R. ROGKtR. CLERK
No. 13C-5012
This cause carne on to be heard on January 14,2014, on the Defendants' Motion
To Dismiss Plaintiffs' Amended Application for Declaratory Judgment and an Injunction, on
Plaintiffs Motion to Amend the Amended Application to name Bolly Spann as a Plaintiff, and on
the Motion to Allow and Accept AmicUs Brief of Mr. James D. R. Roberts, Jr. Based 00 the
pleadings of the parties, the arguments of counsel, the applicable law and the record as a whole,
the Court makes the following fIndings of fact and conclusions of law:
-.. :
1. nus Court finds that Plaintiffs' general challenges to the constitutionality of the
Retention Election Statutes, TeM. Code Ann 17-4-101, et seq. are currently pending before the
Speciul Supreme Court in the case of Hooker v. Haslam, No. 'M2012-01299-SC-Rll-CV, and
therefore, such claims shall be dismissed under the doctrine of prior case pending.
2, Tills Court finds that Plaintiffs, John Jay Hooker, Walter Brumit and Anthony
Gottlieb have standing to challenge alleged procedural detrinls of their constitutional right to
present grievances before the Evaluation Commission, to challenge the conduct of any J.udge
under Article 1, sect. 23 and Supreme Court Rule 27, Section 2, alleging they were denied that
right, a rc:cognizabJe basis affording them standing both as to subject matter and personal
sb nding, if true.
This Court also flrtds that John J. Hooker by reference, is a professed judicial candidate
based on findings inthe case of Hookerv. Haslam, No. M2012-01299-SC-RII-CV, and thus
hils separate standing.
TIus Court fmds that Plaintiffs' motion to amend to add Holly Spann as a Plaintiff .
replesentating women of Te,nnessee, is well-taken, and as such she also has standing in her
own and as representative of the female population of the State.
3. This Court finds that the decision of Moncier v. Board of Professional Responsibility,
2013 WL 2490576 (Tenn. Ct. App. June 6, 2013) is controlling as to
the issue of the validity of Tenn. Supr. Ct. R.. 27, and the Plaintiffs' challenges to the
validity of Rule 27 should be dismissed.
The Court further finds that the Supreme Co\ll1 has the sole authority to establish the
procedures of its agencies pursuant to Tenn. Sup. Ct. R. 27 and the Supreme Court has
eiitabJished the procedures for the Judicial Perfonnance Evaluation Commission.
The court finds that it is without authority or power to issue injunctive relief against the
Judicial Evaluation Commission or its members EiS the sole power to adm:inister the Judicial
,.
PVllluadoIl Conunission lies with the Supreme Court of Tennessee,
4. This court finds that all Plaintllfs have standing to seek a declaratory judgment as to
the validity (Jfthe composition of the Judicial Perfonnance Evaluation Commission under the
provision& ofthe Tem). Code Ann. 174-201 (b)(6) which reads: "The appointing authorities for
the judicial perfonnance evaluation commission "han make appointments that approximate the
population of the state with respect to race and gender ... the speakers shall receive, but shall not
be bound by, recommendations from any interested person or organization."
5. This court finds that the language of the legislative enabling statute for the
membership of the nine member Judicial Evaluation Commission langua.ge is
mandatory, not pennissive. and requires that the appointing authorities for the Judicial
Performance Evaluation CommissionshaU make appojntments that approximate the population
of the state with respect to race and gender.
This Court takes judicial notice of the fact that 1h.e population of Tennessee,
according to the United States Census for 2012 is 52% women, 48% men
and 17% African- American, rounded off.
This Court finds that the composition ofllie current Judicial Perfonuance Evaluation
Conunission consists of nine men and two women and therefore, only
represents 22% of the female population of this state and 11 % of African- Americans
population.
6. This Court concludes that the composition ofllie current Judicial Performance
Evaluation Commission is invalid ab initio under Tenn. Code Ann 1(b)(6) and is
discriminatory against the female and black population of the State of Tennessee. in violation of
the Equal Protection and Due Process Clauses of both the United
States and Tennessee Constitutions.
7. This Court declines, however, 10 enjoin any further of the
JUdldal Performance Evaluation Commission and denies Plaintiffs' request for injtu;lctive relief
norto declare that the actions of the Judicial Evaluation Commission "null IUld void", as such
declarations would invade the province of the Supreme Court of Tennessee.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED tbat:
1. Defendants Moti.on to Dismiss Plaintiffs' challenge to the
constitutionality of the Retention Election Statutes i:!i granted;
2. Defen;dants Motion to Dismiss Plaintiffs' challenge 10 validity of Tenn. Sup.
Ct. R. 27 is grantedj
3. Defendants Motion to Dismiss Plaintiffs' Amended Application on the
grounds that Plaintiffs lack standing is denied;
4. Plaintiffs' request for a declaratory judgment as to the validity of the
composition of the Judicial Performance Evaluation Commission is granted and the Court rules
that the Judicial Performance Evaluation Commission is invalid under Tenn. Code Ann, 17-4-
201 (b)( 6) and unconstitutional under the Due Process and Equal Protection Clauses of the United
States and Tennesse.e Constitutions as being discriminatory toward the female and'black
population of the State of Tennessee;
5. The Plaintiffs' request for injtlllctive relief enjoying any further actions of
the Judicial Perfomlance Evaluation commission is denied; the Plaintiffs' petition for this court
to declare the actions of the Evaluation Commission "null and void" is denied;
6. That Plaintiffs) Motion to Amend to add Holly Spann as a Plaintiff is

7. That Mt, Roberts' Motion to File an Amicus Brief is granted; and
&. That all costs are assessed against the Defendants for which execution may
issue.
IT IS SO ORDERED.
~ 4 4
Judge Hamilton V. Gayden. Jr.
I hereby certify that an exact and tme copy of the foregoing bas been mailed to:
J arret Kleinfelter
Deputy Attorney General
Office of Attorney General
P.O. Box 20207
Nashville, Termessee 37202
Jo1m J&y Hooker
115 Woodmont Blvd.
Nashville, Tennessee 37205
On this the t ~ y of January, 2014,
Clerk
John Jay Hooker
l1S Wood mont Blvd
Nashville TN 37205
V. 615-269-6558
c. 615-479-6531
johnjayhooker@hpeprint.com
January 27,2014
Mr. Mark Goins
Tennessee State Coordinator of Election
State of Tennessee
Division of Elections
312 Rosa L. Parks Avenue,
Snodgrass Tower, 7th Floor
Nashville, TN 37243
Dear Mr Goins:
This lawyer along with thousands of other lawyers is constitutionally qualified to become a
candidate for the Supreme Court vacancy created by the retirement of Judge William Koch. I desire to
become a candidate for that office and I am requesting that you, under your oath of office, support the
Constitution, and issue me and/or any of them a qualifying petition, as the so called, "Tennessee Plan"
TCA 17-4-101 et. seq., which is implemented by TCA 17-4-201, and Supreme Court Rule 27, is
blatantly unconstitutional.
I hope you, based upon your good reputation for integrity will separate yourself from other
public officials who have violated the Constitution and the Official Misconduct Statute, in their effort to
perpetuate a fraudulent system wherein the Governor appoints all appellate judges, when the
Constitution requires that they be elected by the qualified voters of the State and or District.
For your information attached hereto is a lawsuit filed, wherein you are a Defendant, and a copy
of an editorial that was published in The Tennessean newspaper, addressing the election process for
appellate judges, on Sunday January 26
th
2014.
Enci/Tennessean Editorial 1/26/2014
cc. Governor Bill Haslam
Lt. Governor Ron Ramsey
House Speaker Beth Harwell
Secretary of State Tre Hargett
The Press
I www.tennessean. com I Printer-friendl y article page http://www.tennessean.com/printlart icle/20 140 I 26/0P1NIONO I /3 0 J 260 ...
-
II
lof 2
THE TENNESSEAN
January 26 , 20 14
Tennessee Plan's processes flawed
Commission that determines whether judges will be retained has been breaking its
ovm rules for years
The Tennessee Plan has bigger problems than a constitutional challenge.
Tennessee's 40-year-old plan that transferred the power to directly elect the state's appellate judges
from the people to a convoluted system of nominating commissions, gubernatorial appointments,
evaluation commissions and up-or-down retention elections has been challenged over its
constitutionality. A special supreme court , which has been deliberating for more than six months, should
rule soon. And that ruling may become moot when voters take up the constitutional amendment to
rationalize the current system to the state constitution in November.
But one of the key components of the plan, the Judicial Performance Evaluation Commission, which
determines whether judges can stand unopposed for a retention election, has been breaking the rules
that govern it since at least 2006.
This month, Circuit Court Judge Hamilton Gayden ruled that the commission's composition of seven
men and two women violated the Tennessee Code statute and Supreme Court rules that govern its
makeup, and said the commission violated the 14th Amendment of the U.S. Constitution.
The law states that the lieutenant governor and the speaker of the House "shall make appointments that
approximate the population of the state with respect to race and gender" to the nine-member
commission. Tennessee is 52 percent female and 17 percent African-American. And the Tennessee
Supreme Court has stipulated that the commission cannot deviate from the rules that govern its duty.
Since 2006, the commission has not been close to proportionate to the population, according to the
official reports it submitted on which judges should be "retained," or face no opposition on the election
ballot. In 2006, four of the 11 (36 percent) members were female; in 2008, it was four of 12 (33 percent) ;
in 2010, three of nine (33 percent); in 2012, three of nine (33 percent); and this year, two of nine (22
percent) .
As the commission members are surrogates for the state's voters, the Tennessee Plan has effectively
determined that women's votes do not count the same as men's.
Gayden did not enjoin the commission, an oversight he may regret. The Supreme Court declined to
E!nforce its own rules (Rule 27 in this case) and allowed the commission to meet. It heard the appeals of
two judges, Andy Bennett and Camille McMullen, who were on the bubble, and cast the votes that
determine whether judges can stand unopposed, retaining all judges whose terms are set to expire in
2014.
By not enforcing its own rules, the Supreme Court violates one of the most important aspects the
commission evaluates, integrity; yet not one nay vote was recorded for a Supreme Court justice's
retention.
By not following the statutes they are sworn to uphold, Lt . Gov. Ron Ramsey and Speaker Beth Harwel l
violate their oaths of office and the trust we place in them.
Defenders of the Tennessee Plan argue that voters are not competent to elect the best judges, that "big
money" will sway our ill-informed electorate and give us an appellate court system that is capricious.
They say we need a system that is not subject to the vagaries of the political process.
1/261201 4 1:54 PM
www.tennessean.com I Printer-friendly aliicle page http://www.tennessean.com/printiarticle/201401 2610PINIONO \130 I 260 ...
200
Yet the plan they defend has resulted in a process that blatantly excludes the people of the state at
nearly every turn, that reveals a petty arrogance in the appointment and performance in its execution.
And our faith in the independence and integrity of our courts is undermined.
So, regardless of the special supreme court's ruling on the constitutionality of the Tennessee Plan, the
2014 judicial appellate elections should be in question.
If the Judicial Performance Evaluation Commission is unconstitutionally seated, then its votes on
whether to retain judges are invalid. If the commission cannot issue a report, then the August elections
should be open for any qualified candidate.
1/26/20141:54 PM