John Jay HOOKER et al. v. Governor Bill HASLAM et al.
Supreme Court of Tennessee, at Nashville.
March 17, 2014.
Order Denying Petition to Rehear April 23, 2014.
443 S.W.3d 409
July 19, 2013 Session.
Rоbert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Janet M. Kleinfelter, Deputy Attorney General, for the appellees.
OPINION OF THE SPECIAL SUPREME COURT OF TENNESSEE
ANDREE S. BLUMSTEIN, Sp. C.J., delivered the opinion of the Special Supreme Court, in which W. MORRIS KIZER, J. ROBERT CARTER, JR., MONICA N. WHARTON, and JAMES R. DEDRICK, Sp. JJ., joined.
We granted permission to appeal to determine whether certain provisions of the Tennessee Plan,
I. FACTS AND PROCEDURAL HISTORY
This appeal involves a challenge to the constitutionality of
Plaintiff, John J. Hooker, initiated this lawsuit with a complaint for declaratory judgment filed in the Circuit Court for Davidson County on February 21, 2012. On April 10, 2012, Mr. Hooker amended his complaint. As amended, the suit challenged the Governor‘s appointment of Judge Jeffrey S. Bivins to the Court of Criminal Appeals under the Tennessee Plan and alleged that the then-impending (August 2, 2012) retention election of Judge Bivins would violate
Specifically, Mr. Hooker asked that the Tennessee Plan be struck down “because it provides for an unconstitutional appointment by the Governor to fill judicial vacanciеs that must be filled by the qualified voters in a Special election,” and “because it provides for a statewide election of all Court of Appeals judges when the Constitution requires that these judges be elected by the qualified voters of the District in which they reside, and to which they are assigned.” He asked also that any further retention elections under the Tennessee Plan be enjoined, including the August 2012 retention election of Judge Bivins, and that the members of the appellate courts of Tennessee be enjoined from taking any further judicial action in any matter.
Previously over the years, Mr. Hooker and others had filed suits in the state and federal courts challenging the constitutionality of the Tennessee Plan,3 but the spe-
Mr. Hooker appealed the dismissal. The defendants cross-appealed on the issue of voting by district for the judges of the intermediate appellate courts. In an opinion issued on July 27, 2012, the Court of Appeals, again on the basis of stare decisis, affirmed the trial court‘s decision that the Tennessee Plan is constitutional. But on the new issue raised by Mr. Hooker, the Court of Appeals reversed the trial court‘s holding. The Court of Appeals found that the Court of Appeals and the Court of Criminal Appeals each is a single, unified court which serves the entire state, and concluded, therefore, that the election of judges to those courts on a statewide basis is consistent with
II. ANALYSIS
Mr. Hooker‘s position before this Court is that the Tennessee Plan violates the Tennessee Constitution in three ways:4
(1) the Tennessee Plan requires appellate court vacancies to be filled by gubernatorial appointment made from nominees selected by the Judicial Nominating Commission, whereas the Constitution requires vacancies to be filled by contested popular election;
(2) the Tennessee Plan requires a retention election for incumbent appellate judges who wish to be considered for subsequent terms in office, whereas the Constitution requires contested popular elections; and
(3) the Tennessee Plan requires judges for the Court of Appeals and the Court of Criminal Appeals to be elected statewide, whereas the Constitution requires that only the voters in the district or circuit to which a judge is assigned vote in elections for these intermediate appellate judges.
A. Judicial Nominating Commission
The Tennessee Constitution provides that the “Judges of the Supreme Court shall be elected by the qualified voters of the State,”
The Tennessee Plan established a Judicial Nominating Commission charged with compiling and submitting to the Governor a slate of three nominees (selected from all the candidates who apply) to fill any judicial vacancy that occurs.
The Judicial Nominating Commission as established under the Tennessee Plan in 2009 terminated by operation of law on June 30, 2012. See
When Mr. Hooker initiated this litigation in February 2012 and when he amended his complaint in April 2012, the judicial nominating commission provisions of
The repeal of the judicial nominating commission provisions of the Tennessee Plan during the pendency of the present appeal to this Court has rendered the issue moot, which raises the question of whether the issue of the constitutionality of filling judicial vacancies via the statutory nominating commission procedure should now be dismissed because it is moot. We answer that question in the affirmative.
Tennessee courts follow self-imposed rules of judicial restraint so that they stay within their province “to decide, not advise, and to settle rights, not to give abstract opinions.” Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Co., 301 S.W.3d 196, 203 (Tenn.2009) (internal quotation marks omitted). The mootness doctrine is one such rule: a “case must remain justiciable (remain a legal controversy) from the time it is filed until the moment of final appellate disposition.” Id. at 203-04. A moot case or issue is one that has lost its justiciability for some reason occurring after commencement of the case. Id. at 204. A case, or an issue in a case, becomes moot when the parties no longer have a continuing, real, live, and substantial interest in the outcome. Id. at 210.
“The long and well established rule in this State is that the Court ‘will not decide a moot question, though it be the question of constitutionality of a statute.‘” Tennessee Negro Funeral Directors Ass‘n v. Board of Funeral Directors and Embalmers of Tenn., 206 Tenn. 141, 332 S.W.2d 195, 197 (1960) (citations omitted). Where the plaintiff challenged the constitutionality of а statute and the statute was repealed after the case was initiated but before it was heard, the repeal rendered the case moot, since the challenged statute was no longer the law of the land. Id.
This mootness rule was revisited and refined more recently in Norma Faye Pyles Lynch Family Purpose LLC, 301 S.W.3d 196. The general rule remains that appellate courts “should dismiss appeals that have become moot regardless of how appealing it may be to do otherwise.” Id. at 210. However, even though a case or an issue may have become moot, before dismissing it a court should consider whether to exercise its discretion to apply one of the recognized exceptions to the mootness doctrine.
Those exceptions, applicable in the court‘s discretion, may arise:
(1) when the issue is of great public importance or affects the administration of justice;
(2) when the challenged conduct is capable of repetition and is of such short duration that it will evade judicial review;
(3) when the primary subject of the dispute has become moot but collateral consequences to one of the parties remain; and
(4) when the defendant voluntarily stops engaging in the conduct.
Only the public interest exception is potentially applicable in this case. A court may exercise its discretion to address even a moot issue in exceptional circumstances and if the issue is one of great importance to the public. See id. at 210. Exercise of that discretion is guided, as a threshold matter, by the following considerations:
(1) the public interest exception should be invoked only with regard to issues of great importance to the public and the administration of justice;
(2) the public interest exception should not be invoked in cases affecting only private rights and claims personal to the parties;
(3) the public interest exception should not be invoked if the issue is unlikely to arise in the future; and
(4) the public interest exception should not be invoked if the record is inadequate or if the issue has not been effectively addressed in the earlier proceedings.
Id. at 210-11 (internal quotation marks omitted).
If these threshold considerations do not exclude invocation of the public interest exception, the court must then balance the interests of the parties, the public, and the courts to determine whether the issue, albeit moot, should not be dismissed. The following factors, among others, may be considered in balancing the interests involved:
(1) the assistance that a decision on the merits will provide to public officials in the exercise of their duties;
(2) the likelihood that the issue will recur under similar conditions regardless of whether the same parties are involved;
(3) the degree of urgency in resolving the issue;
(4) the costs and difficulties in litigating the issue again; and
(5) whether the issue is one of law, a mixed question of law and fact, or heavily fact-dependent.
We decline to invoke the public interest excеption to the mootness doctrine in this case. The threshold considerations alone preclude invocation of the public interest exception.
To be sure, the question of how judges are selected in Tennessee is one of immense public importance. Since the judicial nominating commission portions of the statute no longer exist, the statutory Judicial Nominating Commission no longer affects future appointments and any opinion as to its constitutionality would be advisory only. An advisory opinion on the constitutionality of a now-lapsed judicial nominating commission process would not serve the public interest.
The public interest exception should not be invoked in a matter affecting only private rights. All that is still at stake is Mr. Hooker‘s personal right, if any, to have been a candidate for Judge Bivins’ seat on the bench. This is not a class action; no other rights are involved.
Mr. Hooker is incorrect in his contention that, if the judicial selection process is declared unconstitutional, the result would be the automatic invalidation of all acts of all judges who were elected to office under the Tennessee Plan. Under both federal law and Tennessee law, the doctrine of de facto validity of officers would prevent such a remedy and such a result.
The de facto validity doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person‘s appointment or election to office was deficient. Norton v. Shelby County, 118 U.S. 425, 441, 6 S.Ct. 1121, 30 L.Ed. 178 (1886). The doctrine protects against the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question and it insures the orderly functioning of the government despite technical defects in title to office. Id.
Under federal law, the de facto validity doctrine has long been applied in cases involving challenges by criminal defendants to the authority of a judge who participated in the proceedings leading to their conviction and sentence. See Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891); McDowell v. United States, 159 U.S. 596, 16 S.Ct. 111, 40 L.Ed. 271 (1895); Ex parte Ward, 173 U.S. 452, 456, 19 S.Ct. 459, 43 L.Ed. 765 (1899) (holding “the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked“).
The de facto validity doctrine is also applied in civil cases under federal law. In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the plaintiffs challenged the appointment of the Federal Election Commission members on separation of powers grounds. The Supreme Court held that the appointment of four members of the Commission by Congress, rather than by the President, violated the Appointments Clause, but nonetheless accorded the past acts of the Commission de facto validity. Id. at 142.
Similarly, in Connor v. Williams, 404 U.S. 549, 550-551, 92 S.Ct. 656, 30 L.Ed.2d 704 (1972), the Supreme Court decided that legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment were nevertheless valid.
The de facto validity doctrine applies as well to judicial officers. In N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87-89, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), the Supreme Court concluded that the broad grant of jurisdiction to the bankruptcy courts contained in
Tennessee has, likewise, long applied the de facto validity doctrine to public officials, and, in particular, to judges in both civil and criminal cases. Like its federal counterpart, the Tennessee doctrine of de facto validity is designed to protect against the chaos and immense expense that would ensue if the acts of judges who were not elected in accordance with the Tennessee Constitution were automatically invalidated. Bankston v. State, 908 S.W.2d 194, 198 (Tenn.1995). A judge acting under color of law and with the acquiescence of the litigants qualifies as a judge in fact whose ruling controls even if his or her authority is constitutionally invalid. Jordan v. Knox, 213 S.W.3d 751, 774 (Tenn.2007). The doctrine of de facto validity of officers extends to judges, and the official acts of a judge de facto are binding on third parties and the public. Bankston, 908 S.W.2d at 196; State ex rel. Newsom v. Biggers, 911 S.W.2d 715, 718 (Tenn.1995).
Accordingly, even if we were to hold that the Tennessee Plan is in whole or in part unconstitutional, it would not follow that all cases previously decided by judges who hold or held office under the Tennessee Plan would be void. The doctrine of de facto validity would operate to protect the public against such a result. Nor would it follow that all the sitting judges, including Judge Bivins, would immediately have to vacate their pоsitions or cease ruling on matters. Under the doctrine of de facto validity and the policies behind it, this Court could stay its holding for an appropriate period to ensure an orderly transition, so that, for example, the sitting judges could serve out their then-current terms.
Further, there is nothing in the record to indicate that the issue is likely to arise in the future under similar conditions. The Legislature did not see fit to recreate the Judicial Nominating Commission in anticipation of—or after—its recent sunset. To the contrary, the Legislature has proposed instead a constitutional amendment that would do away with the Tennessee Plan entirely. There is no indication in the record that the Legislature will resurrect the Judicial Nominating Commission between now and November 4, 2014, when that constitutional amendment will be voted on by the electorate. Nor is there any indication in the record that the Legislature will restore the Judicial Nominating Commission after the November 4, 2014, election should the proposed constitutional amendment fail. On the contrary, Mr. Hooker has filed post-argument papers that suggest just the opposite. He asserts in those filings that some leading legislators believe that the Tennessee Plan is unconstitutional. If that is correct, then it would stand to reason that the Legislature will not re-enact legislation that it deems unconstitutional.
Even if the threshold considerations for invoking the public interest exception were met, the balancing factors dо not point to sufficiently “exceptional circumstances” and do not weigh in favor of invoking the exception. A decision on the merits will not assist public officials in the exercise of their duties. Since the Judicial Nominating Commission no longer exists, there are no commissioners and thus no public officials who have any duties in that respect.
Mr. Hooker moved this Court to take judicial notice of an opinion issued by the Attorney General on October 9, 2013, and we granted that motion, treating it as a motion under Tennessee Rule of Appellate Procedure 14 for the filing of supplemental authority. The Attorney General has opined that, despite the termination of the Judicial Nominating Commission, the Governor may still make appointments to fill judicial vacancies because
We express no opinion on the correctness of Tennessee Attorney General Opinion No. 13-76, nor do we express any opinion on the constitutionality of Executive Order No. 34. Neither question is within the scope of Mr. Hooker‘s suit or within the scope of his appeal to this Court. Put another way, since both questions are beyond the mandate for which this Special Supreme Court was commissioned, we may not and do not address them. See Holder v. Tennessee Judicial Selection Comm‘n, 937 S.W.2d 877, 881 (Tenn.1996).
Indeed, separate lawsuits have been filed challenging Executive Order No. 34 and the reasoning of Tennessee Attorney General Opinion No. 13-76 on which Executive Order No. 34 rests. During the winding-up year of the Judicial Nominating Commission, Governor Haslam appointed successors to three appellate judges who announced plans to retire in 2014. Apparently recognizing that the constitutionality of those appointments is not within the scope of his appeal now before us, on June 10, 2013, Mr. Hooker filed a separate lawsuit challenging those appointments. Hooker v. Haslam (Case #2), No. 13C-2378 (Davidson Cnty. Cir. Ct. filed June 10, 2013). Mr. Herbert Moncier has also filed a lawsuit in federal district court in Knoxville challenging the constitutionality of the Governor‘s Commission for Judicial Appointments (Executive Order No. 34). Moncier v. Haslam, No. 3:13-CV-00630 (E.D.Tenn. filed October 18, 2013).
At this stage, there does not appear to be any special urgency to resolve the moot issue. First, because of Executive Order No. 34 there is currently in place a mechanism for filling judicial vacancies. Second, on November 4, 2014, the electorate will decide whether to amend the Tennessee Constitution with respect to the method of judicial selection. If the constitutional amendment passes, not only does the issue of the constitutionality of the Judicial Nominating Commission remain moot, but the issue of the constitutionality of the retention election portion of the Tennessee Plan will bеcome moot as well. If the constitutional amendment does not pass, the Legislature may or may not re-enact the Tennessee Plan‘s Judicial Nominating Commission. If the Legislature does not resurrect the Judicial Nominating Commission—or if it enacts some variant—the issue of the constitutionality of the Judicial Nominating Commission remains moot. If the Legislature does re-enact the same legislation, it would not be difficult to bring an appropriate constitutional challenge, since the issue would be mainly one of law.
We hold, therefore, that the issue of the constitutional validity of the Judicial Nominating Commission/gubernatorial appointment process under the Tennessee Plan is moot, and we decline to rule on this issue. Accordingly, the judgment of the Court of Appeals on this issue is vacated and that claim is dismissed.
B. Retention Election
We turn next to the question of the constitutional validity of the retention election portion of the Tennessee Plan. The Constitution provides that the “Judges of the Supreme Court shall be elected by the qualified voters of the State,”
Under the Tennessee Plan, an incumbent appellate judge who seeks to fill the unexpired term to which he or she was appointed or who seeks re-election for a full eight-year term must take certain steps to qualify as a candidate for office. The candidate is then evaluated by the Judicial Performance Evaluation Commission, which makes a recommendation either for retention or for replacement. If the Commission recommends replacement, then the office is filled by means of a contested popular election. If the Commission recommends retention, then the name of the candidate, without party designation, is submitted to the electorate of the State in the regular August election on a ballot that asks the voters to make the following choice:
Shall (Name of Candidate) be retained or replaced in office as a Judge of the (Name of the Court)?
_____ Retain
OR
_____ Replace.
Mr. Hooker argues in essence that the “retain” or “replace” ballot is unconstitutional because the phrase “shall be elected by the qualified voters” in the Tennessee Constitution requires that the voters be given a choice of two or more candidates in a contested popular election. The issue to be decided is, therefore, whether giving the voters a choice between retaining or replacing a judge is an “election” within the meaning of
The Tennessee Supreme Court has addressed this issuе in two prior cases, namely in State by Shriver ex rel. Higgins v. Dunn, 496 S.W.2d 480 (Tenn.1973), and State ex rel. Hooker v. Thompson, 249 S.W.3d 331 (Tenn.1996). Looking to those two earlier decisions, both the trial court and the Court of Appeals held, based on the doctrine of stare decisis, that the retention election feature of the Tennessee Plan meets the constitutional requirement that judges be “elected by the qualified voters.”
The doctrine of stare decisis embodies the principle that a judicial decision should not be lightly overruled once it has been implemented and acted under for a period of time as long as the decision is not repugnant to some rule of law of vital importance. In re Estate of McFarland, 167 S.W.3d 299, 305 (Tenn.2005). Stare decisis is based on the policy of giving “firmness and stability to principles of law” so that people may know their legal rights and plan their affairs accordingly. J.T. Fargason Co. v. Ball, 128 Tenn. 137, 159 S.W. 221, 222(1913).
But stare decisis is neither “a universal inexorable command” nor an “inflexible rule.” Alcazar v. Hayes, 982 S.W.2d 845, 853 n. 5 (Tenn.1998). Although stare decisis is a policy of great importance, there are instances when settled rules of law must nevertheless be overturned. When there is obvious error or unreasonableness in the precedent, a change in conditions that makes the precedent obsolete, the likelihood that adherence to precedent would cause greater harm to the community than would disregarding stare decisis, or, especially, when there is an inconsistency between precedent and a constitutional provision, then stare decisis may and should be disregarded and the precedent overruled. In re Estate of McFarland, 167 S.W.3d at 306.
In fact, the doctrine of stare decisis is less compelling in constitutional cases than in other cases since the ultimate touchstone of constitutionality is the Constitution itself. Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The Tennessee Supreme Court “recognizes to its fullest extent the necessity for stability, consistency, and a firm adherence to the doctrine of stare decisis in passing upon and construing any provision of the organic law; but if an error has been committed, and becomes plain and palpable, the court will not decline to correct it, even though it may have been reasserted and acquiesced in for a long period of years.” Summers v. Thompson, 764 S.W.2d 182, 199 (Tenn.1988) (Drowota, J., concurring) (quoting Arnold v. Mayor and Aldermen of the City of Knoxville, 115 Tenn. 195, 90 S.W. 469, 470 (1905)). Thus, even a “long and unchallenged custom cannot constitutionalize a practice that is eventually shown to be repugnant to the fundamental law.” Id.
Moreover, it is not for the Court to consider the consequences or make policy choices in deciding whether precedent should be overturned when it is inconsistent with the Constitution. “If the Constitution is to remain viable and its integrity maintained, this Court has no alternative but to enforce it regardless of any lesser policy considerations.... ‘No argument from policy, or inconvenience, or the harmony of the system can be permitted to have any weight in the decision of [a constitutional] question.‘” Id. (citations omitted). Still, the power to overrule former decisions “is very sparingly exercised and only when the reason is compelling.” Edingbourgh v. Sears, Roebuck & Co., 206 Tenn. 660, 337 S.W.2d 13, 14 (1960).
Mr. Hooker contends as a threshold matter that neither Higgins v. Dunn nor Hooker v. Thompson properly may be the basis for application of the doctrine of stare decisis. According to Mr. Hooker, two of the judges making up the majority in Higgins v. Dunn were constitutionally incompetent because they were regular membеrs of the Supreme Court and were potential candidates for election in 1974 under the retention election provisions of the Tennessee Plan. As a result, Mr. Hooker contends, the judgment in Higgins v. Dunn is void because it was not rendered, as required, by at least three competent members of the Court.
Even assuming that two of the judges were constitutionally incompetent, Mr. Hooker‘s argument overlooks the effect of de facto validity. The opinion in Higgins v. Dunn was authored by Justice McCanless, with Justice Chattin and Special Justices McAmis and Wilson concurring. Justice Humphreys dissented, and Justice Dyer did not participate. There is nothing to suggest that the competence of Justices McCanless or Chattin was challenged by any of the parties to that case. As judges acting under color of law and with the acquiescence of the litigants, they were qualified as judges in fact whose ruling controls even if their authority was constitutionally invalid. See Jordan, 213 S.W.3d at 774. Their official acts are not subject now to collateral challenge; those acts are binding on third parties and the public—including Mr. Hooker. Bankston, 908 S.W.2d at 196; Biggers, 911 S.W.2d at 718.
Mr. Hooker also argues against the application of stare decisis on the theory that the issue of the Tennessee Plan‘s constitutionality was not actually before the Court in Higgins v. Dunn and so was not properly decided in that case, making the holding in that case invalid as it pertains to the constitutionality of the Tennessee Plan‘s retention election provisions. Mr. Hooker then posits that the later holding in Hooker v. Thompson is tainted—and invalid—because it relied on and treated аs a matter of stare decisis the earlier, invalid case.
However, the constitutionality of the Tennessee Plan‘s retention election provisions was properly before the Court in Higgins v. Dunn. The suit involved competing claims of two persons to a seat on the Tennessee Supreme Court left vacant by the death of a sitting justice. To adju-
Deciding this particular issue, the majority in Higgins v. Dunn upheld the constitutionality of the Tennessee Plan. Id. at 490. It reasoned as follows:
The Constitution of Tennessee does not define the words, “elect,” “election,” or “elected” and we have not found nor have we been referred to any provision of the Constitution or of a statute or to any decision of one of our appellate courts defining these words.
There are three instances in which the Constitution provides for referenda and refers to them as elections: Art. 2, Sec. 29, ... Art. 11, Sec. 3, ... [and] Art. 11, Sec. 9....
It seems to us that if the Constitution itself denominates these methods of ratification as elections, it cannot be that [the Tennessee Plan] is unconstitutional because the elections therein provided for are limited to approval or disapproval. So are the elections provided in Sections of the Constitution referred to above. This is particularly the case, since Article 7, Section 4 reposes wide discretion in the Legislature with respect to elections and the filling of vacancies.
Id. at 489 (footnote omitted).
Justice Humphreys authored a strong dissent in Higgins. He began with the proposition that the “recall election”8 part of the Tennessee Plan is “obviously contrary” to the Constitution, which has “ever since the adoption of the first constitution in 1796” given “the people the right both to nominate and elect their constitutional officers.”9 Justice Humphreys was concerned that the retention election provision of the Tennessee Plan is a slippery slope that will culminate in the erosion of this right by placing too much power in but one of our three co-equal branches of government. For example, a contested popular election is decided by which candidate receives the most votes, but in a retention election the percentage required for retention is fixed by the Legislature.10 His concern extended past elections for judicial office. If “election” can include a “recall referendum” for judges, then it can include recall referenda for the elеction of representatives, senators, district attorneys general, and all other civil officers. Finally, Justice Humphreys feared that:
by turning over to the Legislature the right to say how Supreme Court Judges shall be chosen, this Supreme Court abdicates its place as a coequal part of our tripartite state government, and subordinates itself to the Legislature. Of this subordination, there can be no doubt. Where once the Constitution protected this Court, and preserved it, it must now take its chances with the Legislature. Today the Plan provides for recall by majority vote. But this is only statutory, so what is to keep the Legislature from providing for recall by a different percentage. For that matter, what is to keep it from saying that a judge must be approved by an affirmative vote of such a percentage as will empty the Bench of presently serving judges? If all of this is truly within the power of the Legislature, there is nothing to save this Court.
Twenty-three years later, in Hooker v. Thompson, a Special Supreme Court11 again addressed the constitutionality of the Tennessee Plan. The Tennessee Plan was attacked “as unconstitutional under various provision[s] of the Constitution of Tennessee, specifically Article I, Sections 4 and 5, Article II, Section 1, Article VI, Section 3, and Article XI, Section 16.” 249 S.W.3d at 336-337. “The gravamen of appellants’ position [was] that a ‘retention election,’ as contemplated under the Tennessee Plan, is not a ‘free and equal’ election and deprives the qualified voters of this state of the оpportunity to elect Supreme Court judges.” Id. at 337.
The Hooker v. Thompson Special Supreme Court again upheld the constitutionality of the Tennessee Plan. In doing so that Court relied to a large extent on Higgins v. Dunn. It found that the “issue of whether yes/no retention elections violate the Constitution of Tennessee ha[d] previously been decided by the Tennessee Supreme Court in the case of State ex rel. Higgins v. Dunn, 496 S.W.2d 480 (Tenn. 1973), and no compelling reason has been given to persuade this Court that it should disturb that ruling.” Id. at 337. Nevertheless, the Special Supreme Court independently analyzed the question, giving special heed to—but ultimately rejecting—Justice Humphreys’ dissent in Higgins v. Dunn:
Although the dissent of Justice Humphreys makes a number of good points, this Court concludes that it must follow the majority in Higgins. To rule the meaning of the term “election” as used in the Tennessee Constitution is limited to the popular concept of an election (i.e., a choice among one [sic] or more candidates in which the candidate with the most votes wins the office), would be to hold, in effect, that the Tennessee Constitution uses an internally inconsistent definition of “election.” ...
Thus, it being the duty of this Court, if there is a doubt as to the meaning of the Constitution or a seeming conflict, “... to harmonize such portions and favor the construction which will render every word operative ...,” Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745 (1956), this Court holds that the yes/no retention vote provided for in the Tennessee Plan is in compliance with the
Article VI, Section 3 mandate of the Tennessee Constitution that Judges of the Supreme Court be “elected by the qualified voters.”
Id. at 337-338 (footnote omitted).
In sum and substance, Mr. Hooker‘s two threshold, technical arguments against the application of stare decisis are both without merit. The Justices of the Higgins v. Dunn Court were competent de facto, even if one were to assume that they were not competent de jure. The same issue Mr. Hooker raises in this case with respect to the constitutional validity of the retain/replace ballot as an election by the qualified voters was before the Supreme Court and was, therefore, properly decided by the Supreme Court in Higgins v. Dunn. Even if the Hooker v. Thompson Court had relied entirely on Higgins v. Dunn and had summarily concluded that stare decisis prevented further consideration, it would not have been relying on an invalid opinion. In fact, however, the opinion in Hooker v. Thompson reflects that the Special Supreme Court in that case also itself considered and analyzed the question before rejecting Mr. Hooker‘s challenge to the constitutionality of the retention election portion of the Tennessee Plan.
While we could, therefore, dispose of this issue on the basis of stare decisis, we have undertaken an independent review in order to obviate any further attempts to bring taint and invalidity challenges to existing precedent. Our independent analysis—which differs from the analysis in Higgins v. Dunn and Hooker v. Thompson—leads us to the conclusion that the retention election portion of the Tennessee Plan is constitutional.
In arriving at that conclusion we strictly followed the admonition of Summers, 764 S.W.2d at 199 (Drowota, J., concurring) (quoting Arnold, 90 S.W. at 470) and gave no weight to policy considerations about what may or may not be the best way to select and keep in place an impartial, independent judiciary. We looked only to the languаge of the Tennessee Constitution in light of the well-settled rules of construction of constitutional provisions.
Courts are to construe constitutional provisions as written without reading any ambiguities into them. As Mr. Hooker urges, the words and terms in the Constitution should be given their plain, ordinary and inherent meaning. When a provision clearly means one thing, courts should not give it another meaning. The intent of the people adopting the Constitution should be given effect as that meaning is found in the instrument itself, and courts must presume that the language in the Constitution has been used with sufficient precision to convey that intent. State ex rel. Sonnenburg v. Gaia, 717 S.W.2d 883, 885 (Tenn.1986).
Constitutional provisions will be taken literally unless the language is ambiguous. When the words are free from ambiguity and doubt and express plainly and clearly the sense of the framers of the Constitution there is no need to resort to other means of interpretation. Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745, 748 (1956). But if there is doubt about the meaning, the Court should look first to the proceedings of the Constitutional Convention which adopted the provision in question as an aid to determining the intent of the framers. Id.
The Constitution provides that the “Judges of the Supreme Court shall be elected by the qualified voters of the State,”
Mr. Hooker insists that the word “elected” in
We take Mr. Hooker at his chosen word and, as he asked us to do, we went to the dictionary. “Elect” and “choose” are synonyms as are “election” and “choice.” Merriam Webster‘s Collegiate Dictionary 201, 202, 371 (10th ed.1997). “Elect” means “to select by vote for an office ... to choose ... to decide on.” Id. at 371. “Election” is defined as “the act or process of electing,” i.e., the act or process of choosing someone for a public office by voting. Id. at 371. “Choose” means “to decide on esp. by vote” and includes the concept of selecting between alternatives. Id. at 202. “Choice” is the act of choosing and includes the concept of accepting one possibility and rejecting another. Id. at 201.
Moreover, the Tennessee Legislature has expressly contemplated that retention elections come within its definition of an election. The Tennessee Election Code, first enacted in 1972, regulates by statute “all elections by the people.”
According to the plain, ordinary, inherent meaning of “elect,” the Constitution requires that the public be given an opportunity to choose, or to decide by voting, who may serve as an appellate judge. A contested popular election offers voters such a choice, but a contested popular election is not the only election process that gives the voters such a choice. A ballot that asks the voters whether one particular person should be retained as a judge or replaced is an election in which the voters are asked to “choose” whether a particular person is the one they want to be a judge. The retention election ballot gives the voters a choice of accepting one alternative and rejecting another. Thus, the Tennessee Plan‘s retention election ballot fully meets the definition of “elect” because it is a process of choosing someone for public office by voting and it fully meets the definition of “choose” because it allows the public to decide by voting whether a particular person is the person thе voters want as judge.
Retention elections are, of course, not identical to elections where voters may have a choice among alternative candidates, but they are nevertheless elections in which the voters are given a choice. It is true that “[r]etention elections, ... by definition have only one candidate, who is an incumbent, and a limitation on the vote to ‘yes’ or ‘no.‘” Bradley v. Work, 916 F.Supp. 1446, 1465 (S.D.Ind.1996) (holding that retention elections, exclusive of the initial nomination and appointment process, are protected by the
In general, elective offices in Tennessee do not depend upon opposition from another candidate, but upon whether the office is filled by the direct exercise of the franchise of the voters. A candidate who does not draw opposition, whether on the ballot or as a write-in, is nevertheless elected; a lack of opposition does not negate the exercise of the vote by the electorate. In other words, one may be elected to public office even though the election was uncontested. See Ray v. Gantte, 1987 WL 13250 *1 (Tenn.1987); see also A History of the Tennessee Supreme Court, p. 306 (noting that in 1990 there were no Republican or independent candidates on the ballot so that the judicial nominees of the Democratic Party ran unopposed and were elected to the Tennessee Supreme Court).
Since the plain meaning of “elect” in the Constitution includes both contested elections and referenda like the Tennessee Plan‘s retention election, there is no need to resort to rules of construction. There is, for example, no need to resolve a doubt or an ambiguity or to “harmonize” various provisions of the Constitution. The word “elect” in article VI is not in tension with the “elections” referred to in articles II and XI: as used in the Constitution, “elect” and “election” encompass both contested popular elections and referenda. Accordingly, because the Legislature is vested with the authority to direct the manner in which appellate court judges are to be “elected,”
Even if there were an ambiguity to be resolved, our first obligation would be to review the Journal of the 1870 Constitutional Convention that adopted the amendments requiring appellate judges to “be elected by the qualified voters.” The Tennessee Constitution of 1796 did not provide for an independent judicial branch, but left it to the Legislaturе to create courts and elect judges. The 1834 Constitution established the Supreme Court and provided that judges would be appointed by joint vote of both houses of the Legislature. Not until an amendment to the 1834 Constitution was ratified in 1853 were all judges to be “elected by the qualified voters.”
The Constitutional Convention of 1870 produced a new Constitution that included the language in
We hold, therefore, that the retention election portion of the Tennessee Plan satisfies the constitutional requirement that the judges of the appellate courts be elected by the qualified voters of the State.
C. Statewide Election of Appellate Judges
Finally, we affirm the holding of the Court of Appeals that the intermediate appellate judges are not subject to election only by the voters of the district in which a judge resides. Mr. Hooker challenges the constitutionality of the Tennessee Plan on the grounds that it requires, he claims, judges for the Court of Appeals and the Court of Criminal Appeals to be elected statewide, whereas
We note at the outset that the Tennessee Plan does not require that judges for the Court of Appeals and Court of Criminal Appeals be elected statewide.
While the language in
Thus, Mr. Hooker‘s challenge to the constitutionality of the Tennessee Plan on the ground that it requires statewide elections for intermediate appellate judges is misdirected. That challenge is more properly directed at
The Tennessee Constitution vests the judicial power of the State in “one Supreme Court and in such Circuit, Chancery and other inferior Courts as the Legislature shall from time to time, ordain and establish.”
In 1925 and 1967 the Legislature established the Tennessee Court of Appeals (
By contrast, the trial courts created by the Legislature are divided by district or circuits and their jurisdiction is limited to a specific district or circuit. The Legislature has established thirty-one judicial districts, each consisting of certain specified counties.
The Legislature has further provided that the judges of the Court of Appeals and the Court of Criminal Appeals, like the judges of the Supreme Court, “are elected by the qualified voters of the state at large,” while the chancellors, circuit court judges, and judges of other special courts are elected by the qualified voters of the respective judicial district of each trial court.
Mr. Hooker argues that the judges of the Court of Appeals and the Court of Criminal Appeals may not be elected statewide because, to meet the constitutional requirement of
The flaw in this thinking is the underlying assumption that the judges of the Court of Appeals and the Court of Criminal Appeals are “assigned” to a particular circuit or district and that they only hear cases from and in that division. But the judges are not assigned to a particular circuit or district and they do not sit only in one grand division or hear cases only from one grand division. They are each a member of one, single, unified court that serves the entire state.
The Legislature established “an appellate court composed of twelve (12) judges, styled the court of appeals.”
This one, unitary Court of Appeals is authorized, but not required, to sit in sections of three judges each, when the court deems it advisable to do so to expedite the decision of cases.
A key statutory provision makes it absolutely clear that, even if the Court of Appeals does sit in sections, no judge is permanently assigned to any section. The presiding judge of the Court of Appeals has the right “to assign and reassign the judges and the sections.”
Mr. Hooker points to nothing in the record to support his assertion that the judges are assigned to circuits or districts. Instead, he refers us to Rule 2 of the Rules of the Cоurt of Appeals of Tennessee for the proposition that the judges of that court are “assigned” to sit in one of the three grand divisions, but that is not what Rule 2 provides. Rule 2 divides the Court of Appeals into three sections—east, middle, and west—and provides that the four judges who reside in the Eastern Section shall compose the Eastern Section of the Court of Appeals, the four judges who reside in the Middle Section shall compose the Middle Section of the Court of Appeals, and the four judges who reside in the Western Section shall compose the Western Section of the Court Appeals—unless otherwise designated by the presiding judge.
Mr. Hooker‘s argument ignores the fact that Rule 2, like the statute creating the Court of Appeals, permits the presiding judge to designate which judge or judges will sit in which grand division. It also ignores the fact that the Rules of the Court of Appeals may be suspended in the discretion of the Court of Appeals or of any particular panel of that Court. Rule 1(b). It also ignores the fact that the Court of Appeals may in its discretion sit en banc. Procedure 6, Court of Appeals Internal Operating Procedures.
The Court of Criminal Appeals operates in much the same way. The Legislature established “an appellate court composed of twelve (12) judges, styled the court of criminal appeals of Tennessee.”
Thus, no judge of either the Court of Appeals or the Court of Criminal Appeals is permanently and irrevocably “assigned” to any grand division and is certainly not assigned to any circuit or district. Although the Court of Appeals may sit in sections, those sections are not necessarily always composed of judges residing in the grand division in which the section sits. As the statutes creating these courts contemplate, members of these appellate courts routinely hear cases from grand divisions other than the one in which they reside, the panels (the three judges assigned to hear the cases) may be comprised of members from more than one grand division. Moreover, panels comprised solely of members from one grand division often hear cases that originated in another grand division.
The ordinary, plain meaning of the statutory language establishing these two appellate courts leaves no doubt that each court was created as one, single, unified court (“an appellate court“) which serves the entire state. The statutes creating these courts use the grand divisions merely as the basis for residence for candidates for judicial office, but not for voting or for representation. Cf., e.g., Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967). There is no reason to limit voting for these judges to the voters of any one particular district or circuit or grand division of the state, since each judge serves the entire state and no judge is assigned to or can be said to represent any district or circuit or grand division. Accordingly, the election of judges to the Tennessee Court of Appeals and the Court of Criminal Appeals of Tennessee on a statewide basis is entirely consistent with the requirements of
IV. CONCLUSION
In conclusion, the challenge to the constitutionality of the Judicial Nominating Commission under the Tennessee Plan is moot, the ruling of the Court of Appeals on that issue is vacated, and that claim is dismissed. We hold that the retain/replace provision of the Tennessee Plan is constitutional because it meets the constitutional requirement that appellate judges be elected—i.e., chosen—by the qualified voters of Tennessee, and we affirm the ruling of the Court of Appeals on this issue. We hold that the election of judges to the Tennessee Court of Appeals and the Court of Criminal Appeals of Tennessee on a statewide basis is consistent with the requirements of
The costs of this appeal are taxed to John Jay Hooker, for which execution may issue if necessary.
PER CURIAM.
ORDER
Plaintiff, John J. Hooker, has filed a Petition to Rehear. After careful and thorough consideration, the Court finds that no cognizable reason for rehearing has been presented, see
Even though neither of the parties raised the question of mootness, the Court was obligated independently to raise the question sua sponte since mootness goes to the Court‘s jurisdiction. See, e.g., Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983) (per curiam); Mine Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C.Cir.1994). There is no reasonable dispute—and the Petition to Rehear does not suggest anything to the contrary—that the issue of the constitutionality of the statutory Judicial Nominating Commission is moot in this case.
Moreover, Mr. Hooker has suffered no harm from this Court‘s holding that the challenge to the constitutionality of the Judicial Nominating Commission under the Tennessee Plan is moot in this case. According to Mr. Hooker himself, the issue remains justiciable in other lawsuits that he has filed and that are currently pending in the trial courts. In those other lawsuits the issue is raised in a factual context different from the one that wаs before this Court. The Court of Appeals in this case upheld the constitutionality of the statutory Judicial Nominating Commission, a decision adverse to Mr. Hooker. We have, however, vacated the decision of the Court of Appeals on that issue. Thus, if Mr. Hooker is correct that the issue is not moot in the context of his other cases, then he is free to litigate the issue without any collateral legal harm from the mooted claim in this case. For example, the issue is not res judicata, nor is Mr. Hooker collaterally estopped from raising it in another case with a different factual predicate that may preserve the issue as justiciable.
No rehearing is required to address the issue of the competence of the Court of Appeals. As is clear from our Opinion, we did not rely on the holding or the reasoning of the Court of Appeals, but arrived at a decision based on our own, independent analysis of each of the issues presented, including Mr. Hooker‘s challenge to the constitutionality of the Tennessee Plan on the ground that it requires statewide elections for intermediate appellate judges.
Contrary to Mr. Hooker‘s assertion, our holding that the judges of the intermediate appellate courts may be elected statewide does not ignore the fact that
For the same reason, the constitutional limitation on voting by district or circuit is inapplicable to appellate court judges.
This is in no way changed or affected by the statutory requirement that no more than four of the twelve judges on each intermediate appellate court may “reside” in any onе of the three “grand divisions” of Tennessee.
Even if a grand division were deemed to be a “district,” the statutory limitation on residence by grand division would still be irrelevant, since, as we explained at length in our Opinion, the judges of the intermediate appellate courts are not “assigned” to any grand division. The statutory residence requiremеnt by grand division is merely a limiting qualification for the office of intermediate appellate judge; it is not a limitation on voting. Cf., e.g., Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967).
The statutes creating the intermediate courts of appeal distinguish between a residency requirement for a candidate for office and residence of voters for purposes of voting in exactly the same way as does the Constitution in establishing the Supreme Court. In both instances, a judicial candidate can be required to live in a certain geographic area as a qualification for office, but still be elected statewide without regard to geographic area in which the qualified voters reside.
Simply put, the intermediate appellate judges, like the judges of the Supreme Court, are required to live in a certain area as a qualification for holding office, but they are not “assigned” to that area. Rather, they are “assigned” to the state at large and therefore may be elected by the qualified voters of the entire state.
The Petition to Rehear is denied. The costs are taxed to John Jay Hooker, for which execution may issue if necessary. We adhere to the views and holdings expressed in our Opinion filed on March 17, 2014, and the accompanying Order. This Court will entertain no further petitions, motions, requests, or pleadings of any kind seeking reconsideration or rehearing of any of its orders. Mandate shall issue immediately.
It is so ORDERED.