Special Supreme Court Upholds Constitutionality Of Tennessee’s Appellate Judge Election Process

Monday, March 17, 2014

 A five-member Special Supreme Court convened solely to hear a lawsuit challenging the constitutionality of the way appellate judges are initially chosen and later stand for reelection to office ruled on Monday, that the current retention election system for choosing appellate judges does not violate the state’s Constitution.

The court also held that the issue raised in the lawsuit regarding how appellate judges are initially selected could not be decided as part of this proceeding, because the statutory authority for that initial judicial selection process – the Judicial Nominating Commission – expired in June 2013. Since the Judicial Nominating Commission is no longer the law of this state, there is no longer a real, live issue for the court to decide.

Also challenged in the suit was statewide voting for the judges of the Court of Appeals and the Court of Criminal Appeals. The appeal asserted that the state “Constitution requires that these judges be elected by the qualified voters of the District in which they reside, and to which they are assigned.” The court held that the judges of these intermediate appellate courts are not assigned to any one district and that each of these courts serves the entire state and, therefore, statewide elections are constitutionally appropriate.

The lawsuit, filed in 2012 by John Jay Hooker of Nashville, challenged the “Tennessee Plan,” specifically the authority of Gov. Bill Haslam to appoint Jeffrey S. Bivins to the Court of Criminal Appeals, maintaining that it violated the Tennessee Constitution. A Davidson County trial court found the process for selecting and voting for appellate judges to be constitutional, but held that district, rather than statewide, elections were required by the Constitution. The Court of Appeals reversed the trial court’s decision as to voting by district, determining instead that statewide elections were proper, but upheld the trial court in all other respects.

The Special Supreme Court granted Mr. Hooker’s appeal on all the issues. The case was heard July 19, 2013 in Nashville.

On the issue of retention elections, in which sitting appellate judges qualify as candidates, they are evaluated by a commission, and then subject to a retain/replace vote on the ballot. The court chose to undertake an “independent review,” instead of relying on previous similar court cases in which the constitutionality of retention elections had been upheld. The court’s decision turned on the plain and ordinary meaning of the words “elected” and “chosen.” The court found that, while the Constitution requires voters be given an opportunity to decide by voting who may be a judge, the Constitution does not limit that process to a contested popular election; it also allows the public to choose or decide by voting whether one particular person is the person the voters want as judge.

The court declined to rule on the constitutionality of the governor’s Commission for Judicial Appointments, which replaced by executive order the statutory Judicial Nominating Commission and which follows a similar protocol as the commission once did, because that issue was not before the court. The court pointed out that the question of the constitutionality of the governor’s commission is actually the subject of other lawsuits now in other courts.

The court further ruled that, even if the state’s judicial selection process was declared unconstitutional, it would not automatically invalidate all acts of all judges who were elected to office under the Tennessee Plan. The court cited the federal and state law doctrine of de facto validity of officers, which is “designed to protect against the chaos and immense expense that would ensue if the acts of judges” were automatically invalidated.

The special supreme court was convened by Gov. Bill Haslam in 2012 after all five justices of the Tennessee Supreme Court recused themselves from hearing Mr. Hooker’s appeal. The special supreme court members were:

·         Special Chief Justice Andrée Sophia Blumstein, Sherrard & Roe, PLC, Nashville

·         Special Justice J. Robert Carter, Jr., Criminal Court Judge, Shelby County

·         Special Justice James R. Dedrick, U.S. Attorney’s Office, retired

·         Special Justice W. Morris Kizer, Gentry, Tipton & McLemore, P. C., Knoxville

·         Special Justice Monica N. Wharton, chief legal counsel, Regional Medical Center at Memphis

To read the opinion by the Special Supreme Court of Tennessee in John Jay Hooker et al. v. Governor Bill Haslam et al., authored by Special Chief Justice Andrée S. Blumstein visit the Opinions section of TNCourts.gov.

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