Eleven of Tennessee’s 12 Court of Appeals judges have declined to hear an appeal of John Jay Hooker’s latest effort to invalidate the state’s system for selecting appeals court judges.
Hooker, who has twice been the Democratic party nominee for governor and has run unsuccessfully for others offices as well, has crusaded against the judicial selection system since filing his first lawsuit against it in 1996. Two years later, a specially-appointed State Supreme Court upheld the constitutionality of the plan in a separate lawsuit with Hooker involved.
In February of this year, Hooker filed another lawsuit, contending Gov. Bill Haslam’s appointment of Jeff Bivens to the Court of Criminal Appeals last year violates that state constitution. Davidson County Circuit Court Judge Hamilton Gayden dismissed the lawsuit, known as Hooker vs. Haslam, in June.
In appealing the dismissal, Hooker also filed motions calling on the Court of Appeals judges, as well as Supreme Court justices, to recuse themselves from hearing the appeal. Since they were selected by the present system, they all have a conflict of interest in deciding whether they were properly seated, he contended.
All but one of the Court of Appeals judges – the exception being Herschel Franks – have recused themselves. So have Supreme Court Chief Justice Cornelia Clark and Supreme Court Justice William Koch. The other three Supreme Court justices filed an order calling on Hooker and the attorney general’s office to file briefs on a possible recusal.
Last week, the Supreme Court also issued an order appointing two retired appeals court judges, Donald P. Harris and David G. Hayes, to serve as special judges to hear the appeal as a three-judge panel along with Franks.
Hooker’s lawsuit says the only time a governor can appoint a top judge under the state constitution is when Supreme Court judges recuse themselves because of a conflict of interest. Other gubernatorial appointments, he contends, are invalid because the state constitution says judges shall be “elected by the qualified voters” within the jurisdiction of the court involved.
The present system calls for the governor to fill judicial vacancies from a list of nominees submitted by a nominating commission. Pending in the Legislature is a proposed amendment to the state Constitution that would replace the present system with one where the governor would make the appointments subject to confirmation by the General Assembly.
If all five Supreme Court justices wind up recusing themselves from the case, Gov. Bill Haslam could be upon to name special Supreme Court justices to hear any appeal of the eventual Court of Appeals decision – just as then-Gov. Don Sundquist did in the 1998 case.