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.