Hooker et al vs Chief Justice Wade et al with Attachments

8/13/2019 Hooker et al vs Chief Justice Wade et al with Attachments

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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 voterson behalf of themselves and other qualified voters,

.l\pplicants for Declaratory Judgment,v.CHIEF JUSTICE GARY WADE ON BEHALF OF HIMSELF ANDALL JUDGES WHO HAVE BEEN APPROVED FOR RETENTION-)ELECTION BY THE JUDICIAL PERFORMANCE EVALUATIONCOMMISSION IN BOTH THEIR OFFICIAL AND INDIVIDUALCAPACITIES INCLUDING SUPREME COURT JUDGES,CORNELIA A. CLARK, SHARON G. LEE, AND COURT OFAPPEALS 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, ANDCRIMINAL COURT OF APPEALS JUDGES JEFFREY SBIVINS, ALAN E GLENN, CAMILLE R MCMULLEN,NORMA MCGEE OGLE, ROGER A. PAGE, D. KELLYTHOMAS , ROBERT W. WEDEMEYER , JOHN EVEREDWILLIAMS, JAMES CURWOOD WID THOMAS T.WOODALL,GOVERNOR BILL HASLAM , LT. GOVERNOR RON RAMSEY,HOUSE SPEAKER BETH HARWELL,ADORNEY GENERAL ROBERT E COOPER, IN HIS OFFICIALAND INDEPENDENT CAPACITIES ON BEHALF OF ALLRESPONDENTS AND INTERESTED STATE OFFICIALS,INCLUDING ALL MEMBERS OF THE JUDICIALPERFORMANCE EVALUATION COMMSSION,CHA IRMAN JUDGE ROBERT L JONES, MICHAEL E. TANT,CHRISTOPHER CLEM, HENRIEDA GRANT, J. GREGORYGRISHAM, HON . ROBERT MONTGOMERY, JR.,HON. J. MICHAEL SHARP, RENATA SOTO, JOSEPH A.WOODRUFF , DAVID HAINES ESO,SECRETARY OF STATE TRE HARGEDCOORDINATOR OF ELECTION MARK GOINS,

)Respondents / Defendants.

20 JAN 27 A110: 41ilICH, . KJ 1\ r ~ : : ; r t i CL[;, r\

- - f - J t C

No.

APPLICATION FOR DECLARATORY JUDGEMENTS AND INJUNCTIONS
http:///reader/full/ilICH,'.KJhttp:///reader/full/ilICH,'.KJhttp:///reader/full/ilICH,'.KJ


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1. An application for a hearing for a Declaratory Judgment involving the highest public interest, to be set assoon as possible, under TCA 29-9-104; Tennessee Rules of Civil Procedure, Rule 57, 65 that declaresthat the recommendations of the Judicial Performance Evaluation Commission, made on January 12014, regarding the Defendant Chief Justice and all other Defendant Supreme Court, Court of Appealsand Court of Criminal Appeals Judges are null and void, in violation TCA 17-4-201 and Supreme CourtRule 27 and the January 15 t 2014 Final Order filed by Judge Hamilton Gayden, in the case of Hookeret.al. vs Lt Governor Ron Ramsey et.a/., holding that the seating of the members Commission is invalidand discriminatory in violation of both the Federal and State Constitutions.

B CKGROUND

2. t a meeting on January 17th 2014, the Commission authorized each Judge to file a declaration ofcandidacy with a recommendation to be placed on a Retention-Election ballot for the August 2014election , under the authority of TCA 17-4-101, 115 a) 2)et.seq. However, said recommendations areinvalid and unconstit utiona l 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 theaforesaid appellate Judges to seek Retention-Election by filing a Declaration of candidacy as required bythe statute on or before February 6t 2014. The Commission so acted, notWithstanding the fact that theCommission is unlawfully composed of seven men and two women, in violation of the approximationpopulation provisions of TCA 17-4-201(b) and Supreme Court Rule 27 2.02. The Commission membersproceeded upon the advice of Deputy Attorney General Janet Kleinfelter of the Attorney General'sOffice, 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 qualifiedvoters not to do so. NotWithstanding, Deputy Attorney General Kleinfelter, did so in direct violation ofthe Final Order of Judge Hamilton Gayden, First Circuit Court Davidson County declaring that theCommission 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'sOffice, to act regarding the Commissions' meeting, held on December 6 t 2013, in direct violation of theFinal Order of Judge Hamilton Gayden, issued on January 15 t 2014. The Attorney General made saidrecommendation notwithstanding Judge Gaydon's order had not been appealed at the time of theJanuary ih 2014 hearing. The fact is Judge Gayden's Final Order had held, under the Due Process andEqual Protection Clauses of the United States Constitution and Tennessee Constitution that theCommission, by it having seven men and two women, has discr iminated against the female and blackpopulations of the State of Tennessee. The fact is this circumstance resulted from the fact that the threeJudges and three Lawyers on the Commission violated the Code of Judicial Conduct and or the Rules ofProfessional Responsibility and closed their eyes and ears to reality.

PPLIC TION FOR INJUNCTIONS

5. An application for an injunction based on the Commission's violation of TCA 17-4-201, Supreme CourtRule 27 and Judge Gaydon's Final Order, to prohibit the Commission from taking any action with respectto said invalid, null and void appointments. The Injunction should prohibit the Commission fromissuing any report, final or otherwise, to the Public, or any office of the Government, in an effort to havesaid 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 AppellateJudges from filing a declaration of candidacy on or before February 6t 2014, based on theCommission's actions of January 17th 2014, or thereafter.


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7. An application for an Injunction prohibiting the Commission from taking any further action regarding saidJudges until and unless the Commission is composed, in accordance with the aforesaid statutes andSupreme Court Rule 27 .

8. An application for an Injunction to prohibit the Coordinator of Elections and the Secretary of State fromaccepting or giving effect to any Declaration of Candidacy filed, or to be filed, for the purpose of placingthe name of any Appellate Judge on a ballot in a Retention Election in August of 2014.

RGUMENT

9. The Judicial Performance Evaluation Statute TCA 17-4-201 t seq. and Supreme Court Rule 27 are in fullforce and effect, notwithstanding the fact the members of the Judicial Performance EvaluationCommission, where appointed by Lt. Governor Ron Ramsey and House Speaker Beth Harwell, in violationof said provisions requiring gender approximations, as a consequence of the fact that the State ofTennessee is composed of approximately 52 females and 48 percent males. However, it is obviousthat the appointment of seven male and two female Commissioners, violated said provisions andintentionally and arrogantly, discriminated against the female voters of this State. Consequently, JudgeGayden 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 thegovernment, under Article I 1, Article I 23 and Article XI 16, of the Tennessee Constitution byseeking, redress of grievances on behalf of the qualified voters of the State and specifically on behalf ofthe females of this State, by challenging the official conduct, as well as the individual conduct of theDefendants, who individually and collectively have abused the power, of their offices. At the meetingof January 1ih 2014 it appeared to Plaintiffs in this case, who were arbitrarily deprived of theirconstitutional rights under Article I 23, when the Commission limited their public presentation to threeminutes each, that the three Judges and the three lawyers on the Commission apparently didn't knowthe difference between right and wrong. If they did the Judges and Lawyers on the Commissiondemonstrated that they had no shame in accommodating the political establishment. Furthermore, byrecommending all the appellate Judges for Retention-Election, they did this notwiths tanding the fact thatthese Judges and lawyers well knew they were unconstitutionally seated. Moreover, these high placedpublic 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 themfrom doing exactly what they did.

11 . Likewise, Plaintiffs Brumit, Gottlieb and Spann have a right under Article I 1 to reform theGovernment, and consequently all of the Plaintiffs have legal standing and a right to bring this lawsuitin 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 uponthe actions of the Commission, for their own benefit said Judges will be in violation of their own Rule27 and In violation of TCA 17-4-201(b) [race and gender], and the Constitutions of the United States andTennessee and the order in the case of Hooker et.al. vs. t 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 forviolating the law for their own benefit.

12 . Moreover, the Attorney General of Tennessee, who is conflicted in t is case, because he wasappointed by members of the Supreme Court, and therefore has an, interest in the subject matter of


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the case could also be subject to criminal charges for advising the members of the Commission that themembers 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 conspiredwith the members of the Commission to recommend all of the appellate judges seekingrecommendation, so as to permit them to file a Declaration of Candidacy to be Retention-Elected inAugust of 2014.

13 . In addition, as a consequence, it appears to the Plaintiffs in this case that all of the Judges, CommissionMembers, and the Attorney General, knowingly and intentionally, for their own benef it, havedetermined to contemptuously violate Judge Gayden's January 15 th 2014 Final Order, and the DueProcess Clause of the Constitution of Tennessee, and the Equal Protection clause of the FourteenthAmendment of the Constitution of the United States. This circumstance may require the Plaintiffs , ifnecessary, to go to the Federal Courts to enforce the one person one vote requirement under theEqual Protection clause of the Fourteenth Amendment, for the benefit of the female citizens of thisState, in accordance with the holding in Baker vs. Carr, 369 U S 86 1962) .

14 . Unhappily, it is apparent to the Plaintiffs that we as private citizens have a duty to claim on behalf ofother 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 hewill violate his oath of office if he does not forthwith take action to declare that the Commission isunlawfully seated. Therefore, Governor Haslam has a duty under his oath of office and the Constitutionto prohibit the Commission from taking any action, until and unless the Commission is properlycon stituted 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 threebranches of government.

15 . Consequently, it should be noted Lt. Governor Ron Ramsey and House Speaker Beth Harwell, as part of apattern 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 theyunlawfully, acting individually and collectively, appOinted seven men and two women to the Commissionin 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 theCommission as it is presently constituted. Accordingly, the Plaintiffs seek relief from thiscontemptuous 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 -moneycampaign contributors for forty years, that involves the integrity of our entire government and theintegrity of the individuals herein named, as potential Defendants for their conduct in violating the

Offici a Misconduct Statute.R LI F

16. The Plaintiffs pray that this Honorable Court will issue a Declaratory Judgment declaring that themembers of the Commission are unlawfu lly seated and were incompetent to act, ab initio and thereforeany and all actions taken by the Commission be declared unlawful in violation of the State and FederalConstitutions 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 theCommiss ion designed to facilitate the placement of the Defendant Judges names on a Retention -Electionballot in August 2014.

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18. The Plaintiffs pray that this Honorable Court will issue an Injunction prohibiting theCoordinator of Elections and the Secretary of State from placing the names of any of theaforesaid 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 deemsappropriate under the aforesaid claims to protect the integrity of the Constitutions and thelaws of this State.

20 . The Plaintiffs pray that this Honorable Court will issue an order prohibiting the DefendantJudges from filing a Declaration of Candidacy, to run in a Retention-Election to be held inAugust of 2014 on or before the qualifying deadline of February 6th 2014.

21. The Plaintiffs pray that this Honorable Court will issue an order setting the matter involvingthe highest public interest, for a hearing at the earliest possible time convenient to theCourt.

Respectfully submitted:

KER Pro-Se BPR 005118mo Blvd.

shville, Tennessee 37205Phone 615) 269-6558Cell 615) 479-6531Fax 615) 383-6036

j o h n j a y h o o k e r @ h ~ r i n t c o mLUir t :;jWALTER BRUMIT, Pro-Se

ANTHONY GOTILlEB, Pro-SePO Box 1770

21 Vaughns G pNashville, T 7205615) 812-2551
http:///reader/full/johnjayhooker@h~rint.comhttp:///reader/full/johnjayhooker@h~rint.com


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CERTIFIC TE 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 Reporteron behalf of all State DefendantsJanet KleinfelterDeputy Attorney GeneralPublic Interest DivisionOffice of the Attorney GeneralP.O. Box 20207Na shville, TN 37202

On this the 27 Day of January, 2014

Nashville, Tennessee 37205Phone 615) 269-6558Cell 615) 479-6531Fax 615)[email protected]
mailto:[email protected]:[email protected]


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PPENDIXUnited States Constitution Fourteenth Amendment Section 1. All persons born or naturalized inthe United States, and subject to the jurisdiction thereof, are citizens of the United States and of theState wherein they reside. No State shall make or enforce any law which shall abridge the privilegesor 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 equalprotection of the laws.Tenn. Const. Art. I 1

That all power is inherent in the people, and all free governments are founded on theirauthority, and instituted for their peace, safety, and happiness; for the advancement of those endsthey have at all times, an unalienable and indefeasible right to alter, reform, or abolish thegovernment 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 theircommon good, to instruct their representatives, and to apply to those invested with the powers ofgovernment 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 thestate, and shall never be violated on any pretense whatever . And to guard against transgression ofthe high powers we have delegated, we declare that everything in the bill of rights contained, isexcepted 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 theircommon good, to instruct their representatives, and to apply to those invested with the powers ofgovernment for redress of grievances, or other proper purposes, by address of remonstrance.Tenn. Code Ann. 17 4 101 t seqto : 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 forse rvice on the appellate courts of this state, and to assist the electorate of this state in electing thebe st qualified persons to the courts; .

Tenn. Code Ann. 17-4-115(a)(2).. An i n c u m b e ~ t appellate judge who seeks election for a full eight-year term but who was

a p P o l ~ t e d to the office after the first Thursday in February before the next regular August electionoccurring more than ~ h i r t y (30) days after occurrence of the vacancy that was filled by the

~ n c ~ m b ~ n t a ~ p e l l a t Judge must qualify by filing with the state election commission a writtenec aratlon candidacy. The declaration must be filed not later than the first Thursda occur

~ : ~ ~ ~ / ~ h ~ e e k after ~ p P o i n t m e n t After timely filing the declaration, any r e ~ u e ~ ; t ~ : traw must e filed With the state election commission not later than twelve

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o'clock (12:00) noon prevailing time on the seventh day after the deadline for filing the declarationof candidacy.Tenn. Code Ann. 17 4 116 Judges And Chancellors -Judicial Nomination and PerformanceEvaluation

a) If an incumbent appellate court judge, whether apPointed or elected, fails to file adeclaration of candidacy for election to an unexpired term or to a full eight-year term within theprescribed time, or if the judge withdraws as a candidate after receiving a recommendation forretention from the judicial performance evaluation commission and filing the required declarationof candidacy, then a vacancy is created in the office upon expiration of the incumbent's termeffective 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 nextregular August election. The aPPointee shall file a declaration of candidacy and be voted on oprovided 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 forappellate court judges. The purpose of the program shall be to assist the public in evaluating theperformance of incumbent appellate court judges. The judicial performance evaluation commission,established pursuant to subsection {b}, shall perform the required evaluations. The commissionshall make a recommendation either for retention or for replacement of each appellate courtjudge; provided, that the commission shall not evaluate or make any retent ion recommendationwith 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 anyappellate judge whose term of office is abbreviated because of death, resignation or removal orwho 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 deadlinefor filing the required declaration of candidacy for either an unexpired term or a full eight-yearterm, then evaluation procedures shall be based on the results of any evaluations performedthroughout the judge's service on the appellate bench, evaluation surveys, personal informationcontained in an approved self-reporting form and such other comments and documents as thecommission receives from any other reliable source. However, if an incumbent judge holds office forless than one I) year preceding the deadline, then evaluation procedures shall be based onpersonal information contained in the self-reporting form, the judge's application to the judicialnominating commission and such other comments and documents as the commission receives fromany other reliable source.

(3) Information collected pursuant to subdivision (a){2) shall be confidential and shall be publiclydisclosed only in the manner permitted by subsection c). Upon request, each member of thejudicial performance evaluation commission shall be given complete access to any individual survey,form, application, comment and document submitted, conveyed or compiled for the purpose ofjudicial evaluation; however, each such member must protect the confidential ity of the information


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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 shallprovide an incumbent appellate judge with a draft of the commission s evaluation and shall providethe 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) d y ~prior to the dead line 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 appellatejudge with a draft of the commission s evaluation and shall provide the judge with a reasonableopportunity 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 astate court judge, two (2) shall be attorney members and one (1) shall be a non-attorney. No morethan 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 whomone 1) shall be a state court judge, one l) shall be an attorney, and two (2) shall be non-attorneymembers. 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 appointone 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 fullcommission shall approve the evaluation.(6) The appointing authorities for the judicial performance evaluation commission shall make

p p o ~ n t ~ e n t s that approximate the population of the state with respect to race and gender. Inappointing attorneys to the commission, the speakers sh ll receive, but sh ll not be bound by,recommendations from any interested person or organization.

7) To stagger the terms of judiCial performance evaluation commission members beginning JulyI , 2009, the three (3) non-attorney members on the commission shall serve y e ~ transitionthermths, 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 theconclusion of the transition terms, each regul r term of a commission member shA 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 ane as a resu t of, or related to, the commission s


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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 bemade available for public inspection on the first Thursday in March preceding the regular Augustelection . On the first Sunday in July preceding the regular August election, the final report shall bepublished in a daily newspaper of general circulation in the Tri-Cities area, Knoxville, Chattanooga,Nashville, Jackson and Memphis. The final report fo r each appellate court judge may not exceed sixhundred (600) words.

2) As soon as is reasonably practicable under the circumstances, in order to assist the public inelecting the best qualified persons to the appellate courts, the commission shall cause supplementalfinal 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 ballotinformation, shall apply to each appellate court judge who seeks to serve a complete term after July1, 2009.TC 29-9-104. Omission t perform act.

a) If the contempt consists in an omission to perform an act which it is yet in the power of theperson 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 damagesordered by the court.TC 39-16-402. Official misconduct.

a) A public servant commits an offense who, with intent to obtain a benefit or toharm another, intentionally or knowingly:(1) Commits an act relating to the servant s office or employment that constitutesan unauthorized exercise of official power;(2) Commits an act under color of office or employment th t exceeds theservant s official power;

. . (3) Refrains from performing a duty th t is imposed by law or th t is clearlyInherent 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 ofoffice or employment who acts or purports to act in an official capacity or takes advantage of theactual or purported capacity

. . . . It s a defense to prosecution for this offense th t the benefit involved was atnvk,alfbenef,t 1 ~ ~ l d e n t ~ I ~ e r s o n a l professional or usiness contact, and involved no substantialns undermining official Impartiality.

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(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 pursuingother criminal charges by affidavit of complaint.39 16 403. Official oppression.

(a) A public servant acting under color of office or employment commits an offensewho:

(1) Intentionally subjects another to mistreatment or to arrest, detention, stop,frisk, halt, search, seizure, dispossession, assessment or lien when the public servant knows theconduct is unlawful; or

(2) Intent ionally denies or impedes another in the exercise or enjoyment of anyright, 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 oremployment if the public servant acts, or purports to act, in an official capacity or takes advantageof 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 pursuingother 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 Statesand the Constitution of the State of Tennessee, and that I will truly and honestly demean myself inthe 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 tatement of Purpose.1.01. The work of Tennessee s appellate judges touches the lives of everyone who lives and works inTennessee. 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, andthe judicial system have a vit l interest in a responsive and respected appellate judiCiary.1.02 . Tennessee s appellate judiciary consists of persons who strive to administer justice to the bestof their abilities and to discharge the duties of their offices impartially and effiCiently. Tennessee sappellate judges also share in common a commitment to improve their own judicial skills and toimprove the quality of justice administered by Tennessee s appellate courts.1 3. Improving the administration of ustice in Tennessee s appellate courts can best beaccomplished by instituting a program of continuous self-improvement that has the broad-basedSupport of e n n ~ s s e e s appellate judges and attorneys and empowers the appellate judges, with theassistance of their peers, to enhance and to broaden their own judiCial skills .1.04 . -:he T e n n e s s General Assembly has enacted laws that establish a merit-based process forselecting and retaining the members of Tennessee s three appel/ate courts . To promote informed

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retention decisions, Tenn . Code Ann. 17-4-201{c) requires the Judicial Performance EvaluationCommission to publish reports concerning each appellate judge seeking election to an unexpiredterm or election or reelection to a full eight-year term. In addition to its primary purpose of selfimprovement, the Judicial Performance Evaluation Program must provide information that willenable the Judicial Performance Evaluation Commission to perform objective evaluations and toissue 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 theTennessee Supreme Court the responsibility to promulgate a rule establishing the judicialperformance evaluation program for appellate judges.Section 2 Judicial Performance Evaluation Program2.01. In accordance with this Court s inherent supervisory authority over the court system and thejudges, 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 thejudicial branch of state government.2 02 The Judicial Performance Evaluation Program shall be administered by the JudicialPerformance 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 towaive or to modify any provision of this rule.2.04. The Judicial Performance Evaluation Commission shall be administratively attached to theAdministrative Office of the Courts, but for all purposes other than administration it shall beconsidered independent of the Administrative Office of the Courts. The Adminis trative Office of theCourts shall provide staff assistance to the Commission, and the Commission may, to the extent thatfunds 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 EvaluationCommission, but the Commission may, in its discretion, use panels to prepare interim or preliminaryreports or recommendations for consideration by the membership of the Commission .(b) Five 5) members of the Judicial Performance Evaluation Commission shall constitute a quorumfor the transaction of any business to come before the Commission except for the final decision torecommend the retention or replacement of an appellate judge. With regard to therecommendation to retain or to replace an appellate judge, the quorum shall be seven (7) or moreCommission members, and the recommendation either to retain or to replace an appellate judgeshall require the assent of five S) or more members.e) A Commission member who is unavoidably absent from any meeting of the Commission mayparticipate by teleconference or by video conference if these facilities arereasonably available. Commission members participating by teleconference or video conferenceshall be considered present for the purpose of establishing a quorum.

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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

consider1) 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 theparties or counsel, or the popularity of the decision and without concern for or fear of criticism;4) impartiality of actions; and5) compliance with the Code of Judicial Conduct contained in Tenn. S Ct. R 10.(8) Knowledge and understanding o the law In addition to other appropriate performancemeasures, the Commission shall consider:1) understanding of substantive, procedural, and evidentiary law;2) attentiveness to factual and legal issues before the court; and3) 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; and3) 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; and2) willingness to permit every person legally interested in a proceeding to be heard, unlessprecluded 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 th t 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

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5) service in leadership positions and within the organizations of the judicial branch of government .(f) Effectiveness n working with other judges and court personnel In addition to other appropriateperformance 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; and4) working effectively with court staff.

Section 4. Evaluation Procedure for Appel late Judges.4.01. The Judicial Performance Evaluation Program shall include the regular evaluation of theperformance of appellate judges . The evaluations shall be carried out using professionally acceptedmethods to provide objective and reliable evaluations and to reduce the risk of unfair ratings andstatistical comparisons . Evaluations shall be based on sufficient data to ensure the statisticalreliability of the evaluation information .4.02. The Judicial Performance Evaluation Program for appellate judges, in addition to being usedfor sel f-improvement purposes, shall also be used for the evaluation required of appellate judgesseeking 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 appel late judges seeking election to an unexpired term or relectionor reelection to a full eight (8) year term for the purpose of aiding the public in evaluating theperformance 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 thecriteria in Section 3.01 and shall be based on the results of the evaluation surveys, on the personalinformation contained in an approved self-reporting form and on such other comments andinformat ion as the Commission shall receive from any source.(b) If, because of gubernatorial appointment an appellate judge holds office less than one yearbefore the filing deadline of a declaration of candidacy for either an unexpired term or a full eightyear term, and evaluation surveys are not available, the Judicial Performance EvaluationCommission shall conduct an evaluation and make a retention recommendation using an approvedself-reporting form, the judge s application, and other reliable information.5.03. The Judicial Performance Evaluation Commission, or a panel thereot shall conduct a publicinterview with each appel late judge seeking election to an unexpired term or re-election to a fulleight-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

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public comments concerning the performance of the appellate judges seeking election to an expiredterm or election or re-election to a full eight-year term . The Commission shall provide eachappellate judge with a reasonable opportunity to respond to any information or comment receivedby the Commission regarding th t judge prior to the preparation of the Commission s evaluation ofthat judge.5.05. The Judicial Performance Evaluation Commission shall provide each appellate judge seekingelection to an unexpired term or election or re-election to a full eight-year term with a draft of itsevaluation and shall provide the appellate judge with a reasonable opportunity to comment orrespond either personally or in writing before the publication of the final report or supplementalreport 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 PerformanceEvaluation Commission s evaluation. The judge s response, which shall be in addition to theCommission s report or supplemental report, shall not exceed 600 words.Section 6 Confidentiali ty6.01. Evaluations conducted as part of the Judicial Performance Evaluation Program must beconducted candidly and in strict confidence so th t they may be based on reliable information andso that the areas for improvement may be determined fairly. The disclosure of evaluationinformation 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 freeflow of information and responses.6.02 . All records and inform tion obtained and maintained by the Judicial Performance EvaluationCommission concerning the performance of individual judges shall be strictly confidential and shallnot be disclosed except as provided by statute or this rule. The Commission shall ensure theconfidentiality of inform tion regarding the performance of all judges and shall preserve theanonymity of all persons who may be requested to furnish evaluation information.6.03. Records and inform tion pertaining to the performance and evaluation of judges shall not bedisclosed 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 inform tion applies.(b) The Commission may provide aggregate statistical information th t does not identi fy specificjudges to the Administrat ive Office of the Courts and the Tennessee Judicial Conference for use inthe 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 beadmissible as evidence, nor discoverable in any action of any kind in any court or before anytribunal, board, agency, or persons.6.05. All records pertaining to a particular judge maintained by the Judicial Performance Evaluation

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Commission shall be destroyed six months after the judge s death or retirement The records shallnot 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 o Civil Procedure: Rule 57: Declaratory JudgmentsThe 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 bedemanded under the circumstances and in the manner provided in Rules 38 and 39. The existenceof another adequate remedy does not necessarily preclude a judgment for declaratory relief inCdses where it is appropriate. The court may order a speedy hearing of an action for a declaratoryjudgment and may advance it on the calendar.SUPREME COURT Rules o Civil Procedure: Rule 65 01: Injunctive ReliefInjunctive 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.n injunction may restrict or mandatorily direct the doing of an act. END OF PPENDIX

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IN THE FIRST ClRCUlT COURT FORDA'vIDSON COUNTY T E ~ k 0JOHN JAY HOOKER, WALTER ) 2 8 ~ J A A 15 AHII: 8BRUMIT abd ANTHONY )GOTTLIEB )

Plaintiffs,v.

LT. GOVERNOR RON RAMSEY,HOUSE SPEAKER BETH HARWELL,HON.ROBERTJONEStMITCHAELE. TANT CHRISTOPHER CLEMHENRIETTA GRANT. J. GREGORYGIU SHAM , HON. ROBERTMONTGOMERY, JR., BON. JMICHAELSHABP RENATASOTOJOSEPH A. WOODRUFF, DAVIDBAINES, SECRETARY OF STATETRE HARGETT GOVERNOR Bll.JLHASLAM and ATTORNEYGENERAL ROBERT E. COOPER JR

Defendants.

)

}))

FINAL ORDER

RICH RD R ROGKtR. CLERK

No. 13C-5012

This cause carne on to be heard on January 14,2014, on the Defendants' MotionTo Dismiss Plaintiffs' Amended Application for Declaratory Judgment and an Injunction onPlaintiffs Motion to Amend the Amended Application to name Bolly Spann as a Plaintiff, and onthe Motion to Allow and Accept AmicUs BriefofMr. James D. R Roberts, Jr. Based thepleadings of the parties, the argumentsof counsel, the applicable law and the record as a wholethe Court makes the following fIndings of fact and conclusions of law:


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1. nus Court finds that Plaintiffs general challenges to the constitutionality of theRetention Election Statutes, TeM. Code Ann 17-4-101, et seq. are currently pending before theSpeciul Supreme Court in the case ofHooker v Haslam No . M2012-01299-SC-Rll-CV, andtherefore, such claims shall be dismissed under the doctrine of prior case pending.

2, Tills Court finds that Plaintiffs, John Jay Hooker Walter Brumit and AnthonyGottlieb have standing to challenge alleged procedural detrinls of their constitutional right topresent grievances before the Evaluation Commission to challenge the conduct ofany J.udgeunder Article 1 sect. 23 and Supreme Court Rule 27 Section 2 alleging they were denied thatright s t ~ t i n a rc:cognizabJe basis affording them standing both as to subject matter and personalsb nding, if true.

This Court also flrtds that John J. Hooker by reference, is a professed judicial candidatebased on findings inth case ofHookerv Haslam No. M2012-01299-SC-RII-CV, and thushils 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 herown x ~ h l f and as representative of the female population of he State.

3. This Court finds that the decision ofMoncier v. Board o Professional ResponsibilityM 2 0 1 2 ~ 0 0 7 9 - C O A - R 3 - C V 2013 WL 2490576 (Tenn. Ct. App. June 6 2013) is controlling as tothe issue of the validity of Tenn. Supr. Ct. R 27 and the Plaintiffs challenges to thevalidity of Rule 27 should be dismissed.

The Court further finds that the Supreme Co\ll1 has the sole authority to establish theprocedures of its agencies pursuant to Tenn. Sup. Ct. R 27 and the Supreme Court haseiitabJished the procedures for the Judicial Perfonnance Evaluation Commission.

The court finds that it is without authority or power to issue injunctive relief against theJudicial Evaluation Commission or its members iS the sole power to adm:inister the Judicial


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PVllluadoIl Conunission lies with the Supreme Court o Tennessee,4. This court finds that all Plaintllfs have standing to seek a declaratory judgment as to

the validity (Jfthe composition o the Judicial Perfonnance Evaluation Commission under theprovision& ofthe Tem). Code Ann. 174-201 (b)(6) which reads: The appointing authorities forthe judicial perfonnance evaluation commission han make appointments that approximate thepopulation of the state with respect to race and gender... the speakers shall receive, but shall notbe bound by, recommendations from any interested person or organization.

5. This court finds that the language of the legislative enabling statute for themembership of the nine member Judicial Evaluation Commission langua.geismandatory, not pennissive. and requires that the appointing authorities for the JudicialPerformance Evaluation CommissionshaU make appojntments that approximate the populationof the state with respect to race and gender.

This Court takes judicial notice ofthe fact that 1h e population ofTennessee,according to the United States Census u r ~ a u for 2012 is 52% women, 48% menand 17% African- American, rounded off.

This Court finds that the composition ofllie current Judicial Perfonuance EvaluationConunission consists o nine men and two women and therefore, onlyrepresents 22% of he female population of t is state and 11 of African- Americanspopulation.

6. This Court concludes that the composition ofllie current Judicial PerformanceEvaluation Commission is invalid b initio under Tenn. Code nn 1 7 4 ~ 2 0 1(b)(6) and isdiscriminatory against the female and black population of he State of Tennessee. in violation othe Equal Protection and Due Process Clauses o both the UnitedStates and Tennessee Constitutions.

7. This Court declines, however, 10 enjoin any further ~ c t i o n s of the
http:///reader/full/langua.gehttp:///reader/full/langua.ge


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JUdldal Performance Evaluation Commission and denies Plaintiffs' request for injtu;lctive reliefnorto declare that the actions of the Judicial Evaluation Commission null Uld void , as suchdeclarations would invade the province of he Supreme Court of Tennessee.

IT IS TH R FOR ORDERED, ADJUDGED and DECREED tbat:1. Defendants Moti.on to Dismiss Plaintiffs' g ~ n e l a l 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 grantedj3. 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 he Judicial Performance Evaluation Commission is granted and the Court rulesthat 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 UnitedStates and Tennesse.e Constitutions as being discriminatory toward the female and 'blackpopulation of the State of Tennessee;

5. The Plaintiffs' request for injtlllctive relief enjoying any further actions ofthe Judicial Perfomlance Evaluation commission is denied; the Plaintiffs' petition for this courtto declare the actions of the u d i c ~ a l Evaluation Commission null and void is denied;

6. That Plaintiffs) Motion to Amend to add Holly Spann as a Plaintiff isg r a n t e d ~

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.


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IT IS SO ORDERED ~Judge Hamilton V. Gayden. Jr.

I hereby certify that an exact and tme copy of the foregoing bas been mailed to:

Jarret KleinfelterDeputy Attorney GeneralOffice of Attorney GeneralP.O. Box 20207Nashville Termessee 37202Jo1m J y Hooker115 Woodmont Blvd.Nashville Tennessee 37205

On this the ~ y of January 2014

Clerk


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ohn ay Hookerl S Woodmont lvdNashville TN 37205V. 615-269-6558c. 615-479-6531

johnjayhooker@hpeprint com

January 27 2014Mr. Mark GoinsTennessee State Coordinator of ElectionState of TennesseeDivision of Elections312 Rosa L Parks Avenue,Snodgrass Tower, 7th FloorNashville, TN 37243Dear Mr Goins:

This lawyer along with thousands of other lawyers is constitutionally qualified to become acandidate for the Supreme Court vacancy created by the retirement of Judge William Koch. I desire tobecome a candidate for that office and I am requesting that you, under your oath of office, support theConstitution, and issue me and/or any of them a qualifying petition, as the so called, Tennessee PlanTCA 17-4-101 et. seq., which is implemented by TCA 17-4-201, and Supreme Court Rule 27 isblatantly unconstitutional.

I hope you, based upon your good reputation for integrity will separate yourself from otherpublic officials who have violated the Constitution and the Official Misconduct Statute, in their effort toperpetuate a fraudulent system wherein the Governor appoints all appellate judges, when theConstitution 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 copyof an editorial that was published in The Tennessean newspaper, addressing the election process forappellate judges, on Sunday January 26 t 2014.

Enci/Tennessean Editorial 1/26/2014cc. Governor Bill Haslam

Lt. Governor Ron RamseyHouse Speaker Beth HarwellSecretary of State Tre HargettThe Press
mailto:[email protected]:[email protected]


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IPrinter friendly aliicle page http://www.tennessean.com/printiarticle/201401 2610PINIONO 13 I 2Yet the plan they defend has resulted in a process that blatantly excludes the people of the state atnearly every turn, that reveals a petty arrogance in the appointment and performance in its execution.And our faith in the independence and integrity o our courts is undermined.So regardless of the special supreme court s ruling on the constitutionality of the Tennessee Plan, the2014 judicial appellate elections should be in question.If the Judicial Performance Evaluation Commission is unconstitutionally seated, then its votes onwhether to retain judges are invalid. If the commission cannot issue a report, then the August electionsshould be open for any qualified candidate.
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Hooker et al vs Chief Justice Wade et al with Attachments

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