IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE JOHN JAY HOOKER, ON BEHALF OF HIMSELF AND OTHERS, PLAINTIFF, v.

GOVERNOR BILL HASLAM, ET AL., ) ) ) ) ) ) ) ) ) ) ) ) )

NOTICE OF APPEAL NO. M2012-01318-SC-RDM-CV M2012-01299-COA-R3-CV IN THE FIRST CIRCUIT COURT OF DAVIDSON COUNTY CASE NO. 12C-735

DEFENDANTS.

MOTIONS

1. A MOTION TO SET ASIDE THE AUGUST 8TH, 2012, ORDER SIGNED BY SPECIAL SUPREME COURT JUSTICES BARKER, BROWN AND ECHOLS DENYING THE REACH DOWN MOTION FILED IN THIS CASE ON THE BASIS THAT SAID ORDER IS VOID ON ITS FACE BECAUSE SAID JUDGES WERE INCOMPETENT AT THE TIME THEY SIGNED SAID ORDER BECAUSE THEIR IMPARTIALITY (AT THAT TIME) MIGHT REASONABLY BE QUESTIONED AS CLEARLY EVIDENCED BY THE ORDER OF AUGUST 31ST, 2012, WHEREIN SAID JUDGES ENTERED AN ORDER OF RECUSAL ON THE BASIS THAT THEIR IMPARTIALITY MIGHT REASONABLY BE QUESTIONED. 2. AND A MOTION TO SET ASIDE THE ORDER OF AUGUST 8TH, 2012, SIGNED BY ALL FIVE SPECIAL JUDGES IN THIS CASE ON THE BASIS SAID ORDER VIOLATES THE DUE PROCESS RIGHTS UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS OF THIS LAWYER/LITIGANT AND VIOLATES SUPREME COURT RULE 10, CANON 2.6 WHICH MANDATES THAT EVERY LITIGANT HAS A RIGHT TO BE HEARD AS THE ORDER IN THIS CASE DISMISSING THE REACH DOWN MOTION WAS ENTERED WITHOUT A HEARING, WHICH ACTION BY THE MEMBERS OF THE COURT WAS IMPROPER AND VIOLATED THE CODE OF JUDICIAL CONDUCT RULE 10, CANONS 1 AND 2 AND THEREFORE SAID ORDER WAS AN ABUSE OF
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POWER FOR THE BENEFIT OF SPECIAL JUSTICES BARKER, BROWN AND ECHOLS WHO HAVE AN INTEREST IN THIS CASE THAT REQUIRED THEIR RECUSAL AND THEREFORE SAID JUDGES VIOLATED THE LAW AND THEIR OATHS OF OFFICE UNDER ARTICLE X, SECTION 1 TO SUPPORT THE CONSTITUTION AND ALL LAWS MADE IN PURSUANCE THEREOF. ARTICLE VI, SECTION 11 OF THE TENNESSEE CONSTITUTION, TCA 17-2-101 ET SEQ., AND SUPREME COURT RULE 10, CANON 2, PART 11.

3. AND A MOTION TO SET ASIDE THE ORDER OF AUGUST 8TH, ON THE BASIS THAT NONE OF THE SPECIAL JUSTICES IN THIS CASE DISCLOSED ANY FACTS THAT THIS LAWYER/LITIGANT MIGHT BE ENTITLED TO KNOW UNDER SUPREME COURT RULE 10, CANON 2.11 AND THE COMMENTARY (5) THERETO THAT REQUIRES DISCLOSURE OF ANY FACTS THAT THE LITIGANT MIGHT REASONABLY CONSIDER RELEVANT TO A POSSIBLE MOTION FOR DISQUALIFICATION REGARDING CAMPAIGN CONTRIBUTIONS TO GOVERNOR HASLAM AND OTHER PUBLIC OFFICIALS WHO SUPPORT THE RETENTION ELECTION STATUTE, REGARDING MEMBERSHIPS IN ANY LOBBYING GROUPS SUPPORTING THE RETENTION ELECTION STATUTE OR ANY FACTS RELEVENT OR NOT AS TO WHETHER YOUR HONORS HAD AN OPEN MIND AS SAID DISCLOSURES WERE NECESSARY FOR THIS LITIGANT TO KNOW WHETHER TO CONSENT OR NOT TO CONSENT TO YOUR HONORS PRESIDING IN THIS CASE IN ACCORDANCE WITH THE AFOREMENTIONED PROVISIONS. 4. AND A MOTION TO SET ASIDE THE ORDER OF AUGUST 8TH WITH REGARD TO THE FINDING THAT THE COURT OF APPEALS RESOLVED THE CONSTIITUTIONAL QUESTION ON THE BASIS THAT THE COURT OF APPEALS LACKED JURISDICTION TO DO SO BECAUSE PRIOR TO THE TIME THE COURT OF APPEALS PURPORTED TO DECIDED THE ISSUE ON JULY 27TH, THE SUPREME COURT, ON THE SAME DAY, ASSUMED JURISDICTION TO DETERMINE WHETHER OR NOT TO GRANT THE REACH DOWN MOTION AND IN THAT REGARD THE MEMBERS OF THE SUPREME COURT RECOGNIZING THAT THE IMPARTIALITY OF EACH JUDGE ON THE COURT MIGHT REASONABLY BE QUESTIONED CONSEQUENTLY RECUSED THEMSELVES. THE REGULAR SUPREME COURT COULD NOT HAVE EXERCISED JURISDICTION UNLESS THE CONSTITUTIONAL ISSUE WAS AT THE TIME PENDING BEFORE THE
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THE COURT OF APPEALS AND THEREFORE OBVIOUSLY THE REGULAR SUPREME COURT DETERMINED THAT THE COURT OF APPEALS HAD NOT RESOLVED THE CONSTITUTIONAL QUESTION AND THEREFORE THE SUPREME COURT HAD THE POWER TO ASSUME JURISDICTION AND AS A CONSEQUENCE THE SUPREME COURT UNDER ARTICLE VI, SECTION 11 WAS REQUIRED TO CERTIFY TO THE GOVERNOR THAT EACH MEMBER OF THE SUPREME COURT WAS DISQUALIFIED TO HEAR THE CAUSE AND AS A CONSEQUENCE THE GOVERNOR COMMISSIONED YOUR HONORS AND AS A RESULT YOUR HONORS HAVE EXERCISED JURISDICTION IN THIS CAUSE AND THEREFORE THE PURPORTED ORDER BY THE COURT OF APPEALS ATTEMPTING TO RESOLVE THE CONSTITUTIONAL ISSUE IN THIS CASE IS VOID ON ITS FACE AND CONSEQUENTLY THE ORDER OF AUGUST 8TH MUST BE SET ASIDE. 5. AND A MOTION FOR THE MEMBERS OF THIS COURT TO TAKE JUDICIAL NOTICE OF THE FACT THAT THE PRESIDING COURT OF APPEALS JUDGE FRANKS AND SPECIAL COURT OF APPEALS JUDGE HAYES WERE BOTH, AS THE RECORD SHOWS, RETENTION ELECTED AND THEREFORE WERE PARTIES IN THIS CASE AS THIS CASE SUES ALL RETENTION ELECTED JUDGES , SAID JUDGES ARE REPRESENTED BY THE ATTORNEY GENERAL, CONSEQUENTLY UNDER SUPREME COURT RULE 10, CANON 2.11, 2(A), AS PARTIES TO THIS CAUSE SAID JUDGES WERE INCOMPETENT TO PRESIDE IN THIS CASE AND THEREFORE THE COURT OF APPEALS ORDER OF JULY 27TH IS VOID ON ITS FACE.

6. AND A MOTION FOR YOUR HONORS TO RECUSE YOURSELVES ON THE BASIS THAT THIS LITIGANT-LAWYER DID NOT CONSENT TO YOUR HONORS PRESIDING ON THIS CASE NOTHWITHSTANDING THE FACT THAT ARTICLE VI, SECTION 11 AND TCA 17-2-101 ET SEQ. REQUIRES THAT ALL PARTIES CONSENT TO ANY JUDGE PRESIDING IN ANY MATTER IN WHICH A JUDGE OR A JUSTICE MAY BE INTERESTED.

ARGUMENT EVERY LAWYER, ACCORDING TO THE RULES OF THE SUPREME COURT, IS A PUBLIC CITIZEN AUTHORIZED BY THE RULES OF PROFESSIONAL CONDUCT TO CHALLENGE THE RECTITUDE OF OFFICIAL ACTION AND

CONSEQUENTLY THIS LAWYER IN THIS CASE HAS A DUTY TO DO SO AS THIS MATTER INVOLVES THE RIGHT TO VOTE, THE CONSTITUTIONALITY OF THE RETENTION ELECTION STATUTE, AND IS A MATTER OF UNUSUAL PUBLIC IMPORTANCE AS NO JUDGE IN ANY CASE CAN ADMINISTER DUE PROCESS OF LAW UNLESS THE JUDGE IS CONSTITUTIONALLY COMPETENT.

AS UNPLEASANT AS IT IS TO ASSERT, THE FACT IS THAT YOUR HONORS BARKER, BROWN AND ECHOLS ACTED IN A DISHONORABLE FASHION BY DECIDING THE REACH DOWN MOTION WITHOUT A HEARING AND BY FAILING TO DISCLOSE ON THE RECORD THAT THEY ARE INCOMPETENT TO SIT ON THIS CASE AS A CONSEQUENCE OF THE FACT THAT THEIR IMPARTIALITY MIGHT

REASONABLY BE QUESTIONED. AS A CONSEQUENCE THEY VIOLATED THEIR OATH OF OFFICE TO SUPPORT THE CONSTITUTION AND ALL LAWS MADE IN PURSUANCE THEREOF UNDER ARTICLE X, SECTION 1. FURTHERMORE SPECIAL SUPREME COURT JUDGES BARKER, BROWN AND ECHOLS, NOTWITHSTANDING THE FACT SAID JUDGES BY ORDER OF AUGUST 31, 2012, RECUSED THEMSELVES, DID NOT RESCEND THE ORDER OF AUGUST 8TH, LEAVING ON THE BOOKS AN UNLAWFUL, VOID ORDER TO THE HARM OF THIS LAWYER/LITIGANT AND ALL QUALIFIED VOTERS THAT THIS LITIGANT/LAWYER REPRESENTS AS A PUBLIC CITIZEN

CHALLENGING

THE

CONSTITUTIONALITY
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OF

THE

RETENTION

ELECTION STATUTE IN THIS CASE OF UNUSUAL PUBLIC IMPORTANCE IN VIOLATION OF YOUR HONORS OATH OF OFFICE AND THE LAWS MADE IN PURSUANCE THEREOF, ARTICLE X, SECTION 1, WHICH CIRCUMSTANCE IS IN DEGREDATION OF THE RULE OF LAW AND IS A PUBLIC DISGRACE. THE AFORESAID JUDGES OBVIOUSLY DID NOT HAVE AN OPEN MIND AS REQUIRED BY THE CANONS AS ANY JUDGE WHO FAVORS ONE SIDE OR ANOTHER IN A LAWSUIT OR HAS A ROOTING INTEREST FAVORING ONE SIDE OR THE OTHER ON ANY ISSUE BEFORE THE COURT IS CONSTITUTIONALLY INCOMPETENT.

THE ORDER OF AUGUST 8TH SHOULD BE SET ASIDE ON THE BASIS THAT THE JULY 27TH ORDER OF THE COURT OF APPEALS IS VOID ON ITS FACE AND THEREFORE THE ORDER OF AUGUST 8TH, RELYING ON THE COURT OF APPEALS ORDER, IS LIKEWISE VOID AS A CONSEQUENCE OF THE FACT THAT THE REGULAR SUPREME COURT ASSUMED JURISDICTION AND THEREFORE PREEMPTED THE COURT OF APPEALS POWER TO ACT TO SUBSEQUENTLY DECIDE THE CONSTITUTIONAL ISSUE.

YOUR HONORS CAN TAKE JUDICIAL NOTICE OF THE FACT THAT GOVERNOR HASLAM CLAIMS IN THE PUBLIC PRESS THAT THE FACT THAT A JUDGE HAS AN OPINION ABOUT A MATTER DOES NOT REQUIRE THE JUDGE TO RECUSE AND GOVERNOR HASLAM CLAIMS JUDGES GENERALLY HAVE OPINIONS AND DO NOT RECUSE. THE GOVERNOR IS OBVIOUSLY IINCORRECT IN THAT STATEMENT AND THE GOVERNORS CLAIMS THAT IT WAS NOT NECESSARY FOR JUDGES

BARKER, BROWN AND ECHOLS TO RECUSE THEMSELVES LIKEWISE IS ERRONEOUS. OBVIOUSLY, A JUDGE CAN NOT BE IMPARTIAL IF THE JUDGE DOES NOT HAVE AN OPEN MIND ABOUT ALL ISSUES IN THE CASE. THEREFORE, A JUDGE WHO HAS AN OPINION CONCERNING AN ISSUE IN A CASE CAN NOT HAVE AN OPEN MIND. SEE SUPREME COURT RULE 10, TERMINOLOGY- IMPARTIAL. ALSO, ATTACHED AS EXHIBIT A IS AN

ARTICLE ILLUSTRATING GOVERNOR HASLAMS ERRONEOUS STATEMENTS.

THIS IS A DIFFICULT CASE FOR ALL CONCERNED AS IT INVOLVES THE INTEGRITY OF THE CONSTITUTION ITSELF AND THE INTEGRITY OF THE VOTING PROCESS. THE CONSTITUTIONALITY OF THE RETENTION ELECTION

STATUTE HAS BEEN WIDELY DEBATED FOR MANY YEARS BUT THE TIME HAS COME WHEN THE CONSTITUTIONALITY OF THE RETENTION ELECTION STATUTE MUST BE FORTHWITH RESOLVED AS THE APPELLATE COURTS OF TENNESSEE ARE DAILY DECIDING CASES AND IF THE RETENTION ELECTION STATUTE IS IN FACT UNCONSTITUTIONAL, WHICH THIS LAWYER CLAIMS IT IS, AND HAS SO CLAIMED FOR MANY YEARS, THEN THE DUE PROCESS RIGHTS OF ALL THE LITIGANTS BEFORE THE APPELLATE COURTS OF TENNESSEE ARE AT ISSUE IN THIS CASE. THEREFORE, THIS LAWSUIT MUST FORTHWITH BE DETERMINED IN THE PUBLIC INTEREST BY JUDGES WHO ARE IMPARTIAL AND APPEAR TO BE IMPARTIAL AS OTHERWISE THE INTEGRITY OF THE JUDICIAL SYSTEM ITSELF WILL BE WOUNDED AND CONFIDENCE IN THE RULE OF LAW WILL BE LOST.

Submitted, ________________________________ JOHN JAY HOOKER

CERTIFICATE OF SERVICE I hereby certify that a true and exact copy has been delivered via facsimile and U.S. mail to Janet Kleinfelter, Deputy Attorney General, Public Interest Division office of Attorney General, 425 5th Avenue North, #2, Nashville, Tennessee 37423, on this 10th day of September, 2012.

________________________________ JOHN JAY HOOKER

EXHIBIT A NEWS ARTICLE FROM TIMESFREEPRESS.COM EMPHASIS ADDED FOR YOUR HONORS CONVENIENCE

3 justices recuse themselves from special Supreme Court By Andy Sher Saturday, September 1, 2012 NASHVILLE Gov. Bill Haslam's handpicked special state Supreme Court ran off the tracks at least temporarily Friday when three of the five justices, including former Chief Justice William "Mickey" Barker, of Signal Mountain, recused themselves. Haslam had appointed the special Supreme Court to hear a case challenging the constitutionality of how Supreme Court justices and other appellate judges are selected. Also stepping down were former Supreme Court Justice George H. Brown and Robert Echols, a former U.S. District Court judge. Critics, including John Jay Hooker, who has challenged Tennessee's current merit-selection system for appellate judges in court, have questioned the appointments of Barker, Brown and Echols. All three men have ties to Tennesseans for Fair and Impartial Courts, which has lobbied the General Assembly against changing the system. In an order issued Friday, the three judges said they "have not formed an opinion about the constitutionality of the contested language of the governing the election of appellate judges, they find that it is of utmost importance to protect the integrity of this court and to avoid allegations challenging the independence, partiality or fairness in its decision-making. "Accordingly, in view of the history and unusual circumstances of this case, we do hereby enter this Order of Recusal, disqualifying ourselves from participation in this case." Special Justices Andree Blumstein and W. Morris Kizer did not participate in the order. A former gubernatorial and U.S. Senate candidate, Hooker had filed suit against the current Tennessee Plan, saying the Tennessee Constitution requires direct elections of appellate judges, an issue he has unsuccessfully pursued in the past.

On July 27, the state Court of Appeals upheld the constitutionality of the current Tennessee plan and Haslam appointed the five special justices the same day. The Special Supreme Court on Aug. 8 denied Hooker's pending motion to have it assume jurisdiction over his case because the Court of Appeals had rendered its opinion and there had been no appeal. Hooker then filed a motion to disqualify Barker, Brown and Echols. Haslam spokesman David Smith said in an email the governor had "appointed five attorneys with strong reputations and qualifications. He is disappointed that three of the appointees felt it necessary to recuse themselves based on a perceived conflict of interest, but he understands their decision and appreciates their initial willingness to serve." Smith said the recusals "arose out of an abundance of caution and only substantiate their good faith and character because it is probably unnecessary. No appeal has been filed with the Supreme Court." The spokesman said "judicial selection in Tennessee has been discussed and analyzed for decades. Having a personal position does not disqualify a judge from serving or applying the law. Judges do that every day."

ADDENDUM

SUPREME COURT RULES

DEFINITIONS: IMPARTIAL, IMPARTIALITY,IMPARTIALLY, MEANING ABSENCE OF BIAS OR PREJUDICE IN FAVOR OF, OR AGAINST, PARTICULAR PARTIES OR CLASSES OF PARTIES, AS WELL AS MAINTENANCE OF AN OPEN MIND IN CONSIDERING ISSUES THAT MAY COME BEFORE A JUDGE

RULE 10. CANON 2.6 Rule 2.6 Ensuring the Right to Be Heard

(A) A judge shall accord to every person who has a legal interest in a proceeding, or that persons lawyer, the right to be heard according to law. (B) A judge may encourage settlement of disputed matters in a proceeding but shall not act in a manner that coerces any party into settlement. A judge who participates in a judicial settlement conference shall not preside over the trial or any other contested issue in that matter.

RULE 10. CANON 2 Rule 2.11 Disqualification, including comment (5)

(A) A judge shall disqualify himself or herself in any proceeding in which the judges impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a partys lawyer, or personal knowledge of facts that are in dispute in the proceeding. (2) The judge knows that the judge, the judges spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is: (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
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(b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding. (3) The judge knows that he or she, individually or as a fiduciary, or the judges spouse, domestic partner, parent, or child, or any other member of the judges family residing in the judges household, has an economic interest in the subject matter in controversy or is a party to the proceeding. (4) The judge knows or learns by means of a timely motion that a party, a partys lawyer, or the law firm of a partys lawyer has made contributions or given such support to the judges campaign that the judges impartiality might reasonably be questioned. (5) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. (6) The judge: (a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association; (b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; (c) was a material witness concerning the matter; (d) previously presided as a judge over the matter in an inferior court; or (e) previously participated in a judicial settlement conference in the matter. Prior participation in a judicial settlement conference does not prohibit the judge from disposing of any uncontested issues in the matter. (B) A judge shall keep informed about the judges personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judges spouse or domestic partner and minor children residing in the judges household. (C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1) or for participation in a judicial settlement conference under paragraph (A)(6)(e), may disclose on the record the basis of the judges disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel,
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whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding. (D) Upon the making of a motion seeking disqualification, recusal, or a determination of constitutional or statutory incompetence, a judge shall act promptly by written order and either grant or deny the motion. If the motion is denied, the judge shall state in writing the grounds upon which he or she denies the motion. [5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.

CODE OF JUDICIAL CONDUCT RULE 10

CANON 1 A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. CANON 2 A judge shall perform the duties of judicial office impartially, competently, and diligently.

TENNESSEE CODE ANNOTATED 17-2-101. Grounds of incompetency. No judge or chancellor shall be competent, except by consent of all parties, to sit in the following cases: (1) Where the judge or chancellor is interested in the event of any cause; (2) Where the judge or chancellor is connected with either party, by affinity or consanguinity, within the sixth degree, computing by the civil law; (3) Where the judge or chancellor has been of counsel in the cause; (4) Where the judge or chancellor has presided on the trial in an inferior court; or

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(5) In criminal cases for felony, where the person upon whom, or upon whose property, the felony has been committed, is connected with the judge or chancellor by affinity or consanguinity within the sixth degree, computing by the civil law.

TENNESSEE CONSTITUTION ARTICLE X, SECTION 1. Every person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of the state, and of the United States, and an oath of office. ARTICLE VI, SECTION 11. No judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity of consanguinity, within such degrees as may be prescribed by law, or in which he may have been of counsel, or in which he may have presided in any Inferior Court, except by consent of all the parties. In case all or any of the judges of the Supreme Court shall thus be disqualified from presiding on the trial of any cause or causes, the court or the judges thereof, shall certify the same to the governor of the state, and he shall forthwith specially commission the requisite number of men, of law knowledge, for the trial and determination thereof. The Legislature may by general laws make provision that special judges may be appointed, to hold any courts the judge of which shall be unable or fail to attend or sit; or to hear any cause in which the judge may be incompetent.

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