John Jay Hooker, who has been crusading against the current system for electing Tennessee appellate court judges for almost as long as he has been running for office, has penned a memo on the subject for distribution to legislators and others.
It is reproduced below for those who have not had an opportunity to hear one of Hooker’s presentations in person.

Memo from John Jay Hooker, a Friend of the Constitution
To:
Governor Haslam, Lt Governor Ramsey, Speaker Harwell, Chief Justice Clark and Associates , Attorney General Cooper, Chief Judge Ash and Chief Disciplinary Counsel Discenza for the Court of the Judiciary and others
The Constitutional Crisis and Retention-Elections
The Retention-Election Statute TCA 17-4-101 et seq. is obviously unconstitutional and the members of the Supreme Court and all Appellate Judges know it. They have intentionally violated the Constitution by accepting “appointments” to the Courts to “fill a vacancy” and each Judge thereby violated their oath of office and the “Due Process” rights of all the litigants who have come before the Courts over the years.
The facts are the Retention-Election Statute TCA 17-4-112, 115 provides that the Governor shall make “appointments” to fill a “any vacancy” in lieu of an “election by the qualified voters” for both the eight year term and any “unexpired term” occasioned by death or otherwise. “These appointments” are in plain violation of the Constitutional provisions which “direct and provide” that “all vacancies” for the “eight year term” and the “unexpired term” be filled by an election “by the qualified voters of the State” (see Article VI §§ 3, 4 and Article VII §§ 4, 5 attached hereto).
This circumstance is not to be confused with the fact that the Legislature may “make provision” to “appoint” a “Special Judge” to sit temporarily until the “vacancy” occasioned by the death or resignation of the “elected” judge can be filled by a “special election” in accordance with the Constitution. (see Article VI §11; Article VII §5)
In other words the Legislature has “no power” to “give the Governor the power” to “appoint judges” to fill any “vacancies” that must be filled by a “special election” under Article VII §5 because the Constitution “directs and provides” that “all vacancies” shall be filled by “an election” under the aforesaid provisions. Therefore, the Retention-Election Statute passed in 2009, must forthwith be repealed as it violates the Constitution and consequently none of these Judges can be allowed to decide any additional cases pending or hereinafter brought before the Court without violating “Due Process” rights of the litigants including those on Death Row. For that reason it is obvious that our State Government is confronted by a “constitutional crisis” involving our Appellate Court system that you as Governor under your oath should forthwith address.
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The Supreme Court did not rule on the aforesaid legal proposition in either the Higgins vs. Dunn case in 1973 or the Hooker vs. Thompson case (Justice Penny White) in 1996. The courts in those cases held that the Retention-Election Statute is Constitutional. However, neither opinion addressed the aforesaid circumstance differentiating between an “appointment” for a “Special Judge” to sit temporarily under Article VI §11 and the requirement that there be a “special election” to fill the “vacancy” on the Court under Article VII §5 as a result the Court did not reach the Constitutional issue which produces as aforesaid the constitutional crisis.
It should be noted, that the decision in the Higgins which was followed in the Hooker case is void and is not valid legal authority because the Judge in that case, Judge McCanless who wrote the majority opinion in the Higgins case was “incompetent” to hear the case as he had a duty to “disqualify” himself under Article VI §11. The fact was he had an “interest” in the subject matter of the case because the decision permitted him to run for re-election under the Retention-Election Statute. Those who rely on that case as authority to claim that the Retention-Election Statute is Constitutional ignore the fact that Judge McCanless was “disqualified” and accordingly had no authority to decide the case. Therefore, the holding in the Higgins case is void and was not a valid precedent to be relied on in the Hooker case. Consequently, there is no valid judicial authority holding that the Retention-Election Statute is Constitutional.
Furthermore, those who claim that the Retention-Election Statute is constitutional are unwilling to acknowledge that the Retention-Election Statute was passed in direct conflict with the historical fact which is that the convention that wrote 1870 Constitution that clearly considered the option regarding, whether or not judges should be “appointed” or “elected” and concluded that judges should be, “elected by the qualified voters of the State.”
Consequently, there is no “controlling legal authority” challenging the aforesaid proposition of law, which the Court had a duty to address in those cases but avoided, because there is no legitimate argument to “substitute an appointment” by the Governor for an “election” by the “qualified voters of the State”, Article VI §3; Article VII §5.
Repeating what was said in the letter to Governor Haslam, Sir Walter Scott wrote; which applies to the decisions in both the Higgins (1971) and Hooker (1996) cases;”Oh, what a tangled web we weave if first we practice to deceive.” To substantiate this claim all one has to do is read Judge Humphries’ dissenting opinion in the Higgins vs. Dunn case, which sets out the historical fact that Judge Humphries relied on in his opinion wherein he said, “Judge Taylor has, however placed before the Court portions of the Constitutional Convention of 1870, which makes it perfectly clear that before the resolution of the question, whether the Supreme Court should be elected by the qualified voters of the State or be appointed as are Federal Judges, there was much debate, and it was finally decided that Supreme Court Judges should be elected by the qualified voters.
All of this discussion was summarized in Article VI §3 of the Constitution where it declares “the Judges of the Supreme Court shall be elected by the qualified voters of the State.”” The Higgins case 496 S.W.2nd Pg 480, 497 (1973)
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Therefore each member of the appellate courts who was appointed by the
Governor to “fill a vacancy” who was not duly “elected” are consequently
unconstitutionally seated. Moreover, each Judge of the Appellate Courts sit in violation of their oath of office, their attorney’s oath and the Code of Judicial Conduct.
Unfortunately, as a result, each of these Judges must “resign” their judgeships under the requirements of the Canons of Judicial Ethics and in accordance with “Due Process” clauses of both the State and Federal Constitutions which require “fair and impartial judges” who are “competent to sit”. In Tennessee to be “competent to sit” all judges must be “elected” under the Constitution, Article VI §3 Article VII §5.
In the alternative if the Judges do not resign their judgeships the members of the Court of the Judiciary, under their oath to support the Constitution and the Code of Judicial Conduct, must act and report the facts regarding the violation of the Judicial Code of Conduct to the members of the Supreme Court itself. Notwithstanding, the members of the Supreme Court are “incompetent” under Article VI §11 to hear the matter and therefore the Court of the Judiciary under TCA 17-5-311 must report that circumstance to the Legislature for appropriate action. Accordingly, if the members of
the Court do not “resign” their judgeships then the Legislature, under their oath of office to support the Constitution, are required thereafter to “remove” each of these Judges under Article VI § 6.
The Legislature then has “the power” to “make provision” under Article VI §11 “to appoint” Special Judges “to sit” until the biennial election in 2012 at which time “the qualified voters of the state” will fill “all vacancies” on the appellate courts in accordance with the aforesaid Constitutional provisions of 1870.
That is precisely what happened for 100 years from the time the Constitution of 1870 was passed until 1971 when Lt. Governor John Wilder, as a pure “political gimmick” under the guise of a claim that the statute was being passed to install the merit selection of judges, authored the Retention-Election Statute to protect Democratic judges from the Republican political onslaught that occasioned the defeat of Governor Frank Clement by Howard Baker in the 1966 election for the United States Senate, the defeat of Albert Gore Sr. for the United States Senate in 1970 and my defeat for Governor by Winfield Dunn in the same historic year That was the first time a Republican Governor had been elected for half of a century. The fact is the retention-elections became the law under a Democratic controlled Legislature to protect Democratic judges in direct violation of the Constitution and the time has come when this circumstance must be addressed because it has led to a constitutional crisis.
If Governor Haslam, Lt. Governor Ramsey and Speaker Harwell will address the constitutional crisis, which they have inherited, they have the capacity to resolve it by first repealing the Retention-Election Statute and then advising the appellate judges of Tennessee that they should “resign” because being unconstitutionally elected the cannot “preside” and accord litigants the “Due Process of Law” guaranteed by both the State and Federal Constitutions. Consequently, if any and all of the sitting judges fail to resign
they must be “removed” under Article VI §6 of the Constitution.
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In the event, that the Supreme Court Judges “resign” or are “removed” from office because they are unconstitutionally seated, then the Attorney General Robert Cooper, Chief Judge Ash and the other members of the Court of the Judiciary “appointed” by the Supreme Court, the Chief Disciplinary Counsel other members of the Board of Professional Responsibility who are appointed by the members of the Supreme Court, who were unconstitutionally seated, must likewise “resign” as the Court had no authority to appoint them.
In other words, those of us who are ordinary citizens as well as those who
are in office and who are likewise “Friends of the Constitution” in order to avoid further “shame” have a duty in this time of constitutional crisis to stand tall together and “honor” the Constitution.
(Note: The memo concludes with copies of the state Constitution, Article VI, Sections 3-6 and Section 11; Article VII, Sections 4-5 and statutory provisions dealing with appointments, beginning with TCA 17-4-12. These have been omitted.)