Another Take on Merit Selection

This letter is in response to TBA President Jackie Dixon’s September 2012 column, “Speak Out on Behalf of Our Judicial System.”

Duty calls! It is the responsibility of every lawyer to “challenge the rectitude of official action,” Supreme Court Rule 8. The unhappy fact is that the Supreme Court of Tennessee in 1973 held the Retention Election statute constitutional in the case of Higgins v. Dunn, notwithstanding the fact that Governor Dunn had not appointed any judge under the statute Tenn. Code Ann. 17-4-101 et seq. Accordingly, Chancellor Frank Drowota, who ultimately became Chief Justice, had held in the trial court that there was no constitutional issue properly before the court.

Notwithstanding, Judge McCanless held the statute constitutional! However, it was obvious the constitutionality of the statute was “inapplicable” under the facts. Nonetheless, Judge McCanless and Judge Chattin, in a majority of four, held the statute to be constitutional in their “political and economic self-interest,” perhaps because they as incumbents could then run for re-election under the statute. Therefore, notwithstanding lawyers’ claims otherwise, the statute is “void” on its face.

Based on the fact that the decision in the Higgins case is “void” and the fact that in a subsequent case, Delaney v. Thompson (1998), the court declined to reach the constitutional issue and left the constitutionality of this statute an “open question,” this lawyer brought the case of John Jay Hooker v. Governor Haslam. This case claims that said statute is unconstitutional because it mandates the appointment of judges to fill any “vacancy” for trial or appellate judges (Tenn. Code Ann. 17-4-101 et seq). Whereas the Constitution requires that Supreme Court judges be elected by the “qualified voters of the state,” Article VI, Section 3, and that all court of appeal judges be elected by “qualified voters of the District to which they are assigned,” Article VI, Section 4. Furthermore, when a “vacancy” occurs under either of those provisions, then under Article VII, Section 4, and specifically Article VII, Section 5, said provisions require that any “vacancy” be filled at the biennial contested election occurring more than 30 days after the “vacancy” occurs. Notwithstanding that fact, the legislature under Article VI, Section 11 can provide for the appointment of special judges to sit subject to the biennial election. But the legislature cannot provide for the appointment of a regular judge to fill a “vacancy” either for a full term or an expired term, for the aforesaid reasons.

In 1977, in an effort to constitutionalize the Retention Election statute passed in 1971, an effort was made to pass a constitutional amendment but that amendment was rejected. In all probability it will be rejected again in 2014. Either way, in the meantime, the Constitution says what it says and I hope that the members of the Tennessee Bar will address this question on an individual basis and get the leadership of the Bar to “honor” the Constitution and do what it says and if you do you will thereby “honor yourselves.” I ask you to do this notwithstanding the opinion of your distinguished President who has been very gracious in allowing me to write this letter that is in direct opposition to her opinion and the official position of the Tennessee Bar Association.

Let me acknowledge that I am not saying that the election of judges is better than the appointment of judges. In fact, I respect greatly the opinions of those who think the appointment is the best way. However, I believe with all my heart that those of us who have the privilege to be lawyers in accordance with the “rule of law” have the duty and the obligation under the attorney’s oath to support the Constitution “to the best of our skill and ability.”
— John Jay Hooker, Nashville