The big lie

The big lie

September 16th, 2012 by John Jay Hooker in Opinion Columns

In the 1973 case Higgins v. Dunn, the Supreme Court of Tennessee unlawfully held that the state's retention election statute used to retain state judges after the governor selects them is constitutional.

But the constitutionality of the statute was not legitimately before the court due to the fact that Gov. Dunn never made an appointment under the statute, nor was there any election conducted under the statute. Under the facts of the case, the statute was not applicable. Therefore, the Tennessee Supreme Court had no power to rule on the constitutional issue. As a result of that unlawful decision, the "Big Lie" was born and lives today.

The Big Lie that the retention election statute is constitutional is perpetuated by the decision in the case of Hooker v. Thompson. In that case, the court admitted that, under the statute, there could be no election - a direct violation of the Tennessee Constitution, which requires voters to elect state judges. Still, however, the Court again held the retention election statute constitutional, relying upon the bogus ruling in the Higgins v. Dunn case.

Unbelievably, the Tennessee Bar Association and many of the biggest law firms in Tennessee claim that the retention election statute is constitutional. As lawyers, they know, if they have read the Constitution, that their claim that the statute is constitutional is a lie in itself. They choose to perpetuate the Big Lie because they benefit by the current system, which allows the governor to appoint judges.

In furtherance of the Big Lie, Gov. Bill Haslam appointed former Chief Justice William "Mickey" Barker and former Supreme Court Justice George H. Brown to hear John Jay Hooker v. Gov. Haslam, a case to address, once and for all, the constitutional flaws of the state's retention election and judicial appointment system.

Haslam knew - or should have known - that both Barker and Brown were on the board of directors of the lobbying organization Tennesseans for Fair and Impartial Courts. Those Special Judges were obviously not impartial and should not have been appointed by Haslam to sit on the special Supreme Court. Nor should those judges have accepted the public trust that goes with being a special Supreme Court Justice, given their clear partiality. Consequently, when those judges accepted the appointment, they dishonored the Tennessee Constitution and violated the Code of Judicial Conduct - and they know they did. For that reason, they wisely disqualified themselves in this case.

Astonishingly, on Sept. 8, Haslam stated that the disqualification of these Judges was "unnecessary" despite the fact that these Judges admitted that their "impartiality might reasonably be questioned" (and therefore they were legally and constitutionally required to disqualify themselves from the case). This preposterous claim by Haslam is simply a part of the cover up that the governor and other high governmental officials in all three branches of government, with the cooperation of the office of the attorney general, are orchestrating on behalf of the special interest groups who want the Supreme Court and other appellate judges of this state to be appointed by the governor.

Haslam is not a lawyer, but the state Constitution was written and ratified by mostly non-lawyers. If the governor would read the Constitution and the aforementioned Higgins and Hooker cases, he would understand that those decisions which gave birth to the Big Lie were unlawfully decided and consequently must be overruled in this case if we are to re-establish the rule of law in Tennessee.

To claim that he believes otherwise is further proof that the governor of Tennessee is involved in covering up the Big Lie in an effort to keep the retention election statute on the books so that he can have the sole power to appoint appellate judges. This deprives the residents of this state their constitutional right to choose their judges in the same manner that they choose all public officials - at the ballot box.

If you want to exercise your God-given, constitutional right to refute the Big Lie and stop this shocking cover-up, please join me in my fight to defend the Constitution and represent those who are otherwise voiceless.

John Jay Hooker, twice the Democratic nominee for governor, is an attorney based in Nashville. Learn more about his efforts to defend the constitutional rights of Tennesseans at: