Hooker et al v. Ramsey et al. | Defendants' Motion to Dismiss

IN THE CIRCUIT COURT FOR DAVIDSON COUNTY TENNESSEE AT NASHVILLE

JOl-iN JAY HOOKER WALTER ) BRUMIT and ANTHONY GOTTLIEB )

) Plaintiffs )

) v ) No l3C-S012

) L T GOVERNOR RON RAMSEY ) HOUSE SPEAKER BETH HARWELL ) HON ROBERT L JONES MICHAEL E ) T ANT CHRISTOPHER CLEM ) HENRIETTA GRANT J GREGORY ) GRlSHAM HON ROBERT ) MONTGOMERY JR HON 1 MICHAEL) SHARP RENATA SOTO JOSEPH A ) WOODRUFF DA VrD HAINES ) SECRETAR Y OF STATE TRE HARGETT) GOVERNOR BILL HASLAM and ) ATTORNEY GENERAL ROBERT E ) COOPER JR )

) Defendants )

DEFENDANTS MOTION TO DISMISS

--------------------- ------- ---

Come the Defendants Governor Bill Haslam Lt Governor Ron Ramsey House Speaker

Beth Harwell Secretary of State Tre Hargett Attorney General and Reporter Robert E Cooper

Jr Hon Robert L Jones Michael E Tant Christopher Clem Henrietta Grant J Gregory

Gnsham Hon Robert Montgomery Jr Hon 1 Michael Sharp Renata Soto Joseph t

Woodruff and David Haines by and through their counsel of record the Attorney General and

Reporter for the State of Tennessee and hereby respectfully move this Court to dismiss

Plaintiffs Amended Apphcation for a Declaratory Judgment and an Injunction for lack of

subject matter jurisdiction pursuant to Tenn R Civ P 1202(1) as Plaintiffs lack the requisite

standing ~o bring this cause of action and their claims for declaratory relief are batTed by

sovereign immunity res judicata andor stare decisis

This motion is supported by an accompanying memorandum of law

Respectfully submitted

ROBERT E COOPER JR Attorney General and Reporter

D puty Attorney General ublic Interest Division

Office of Attorney General PO Box 20207 Nashville TN 37202 (615) 741-7403

2

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion has been sent by first class US Mail postage prepaid to

John Jay Hooker 115 WoodmontBlvd Nashville TN 37205

Walter Bmmit 30 East Dale Court Greeneville TN 37745

Anthony Gottlieb PO Box 1770 Hendersonville TN 37077

it This 3u day of December 2013

ET M KLEINFEL TEf() Duty Attomey General

NOTICE OF HEARlNG

THIS MOTION HAS BEEN SET TO BE HE~ ON THE COURTS REGULAR MOTION DOCKET ON FRIDAY THE 11 - DAY OF li-bC U 20 14 AT 900 AM

IF NO RESPONSE IS TIMELY FILED AND SERVED THE MOTION SHALL BE GRANTED AND COUNSEL OR PRO SE LITIGANT NEED NOT APPEAR IN COURT AT THE TIME AND DATE SCHEDULED FOR THE HEARING See Rule 2604(1) of the Davidson County Local Rules of Practice

3

IN THE CIRCUIT COURT FOR DAVIDSON COUNTY TENNESSEE AT NASHVILLE

JOHN JAY HOOKER WALTER ) BRUMIT and ANTHONY GOTTLIEB )

) Plaintiffs )

) v ) No 13C-5012

) LT GOVERlJOR RON RAMSEY ) HOUSE SPEAKER BETH HARWELL ) HON ROBERT L JONES MICHAEL E ) T ANT CHRISTOPHER CLEM ) HENRIETTA GRANT J GREGORY ) GRISHAM HON ROBERT ) MONTGOMERY JR HON 1 MICHAEL) SHARP RENATA SOTO JOSEPH A ) WOODRUFF DAVID HAINES ) SECRETARY OF STATE TRE HARGETT) GOVERl-JOR BILL HASLAM and ) ATTORNEY GENERAL ROBERT E ) COOPER JR )

) Defendants )

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS

-------- ---------~~-- ~- ~------ --_ ------ _ _--

Comc the Defendants Governor Bill Haslam Lt Governor Ron Ramsey House Speaker

Beth Harwell Secretary of State Tre Hargett Attorney General and Reporter Robert E Cooper

Jr Hon Robert L Jones Michael E Tant Christopher Clem Henrietta Grant 1 Gregory

Grisham Hon Robert Montgomery Jr Hon 1 Michael Sharp Renata Soto Joseph A

Woodruff and David Haines by and through their counsel of record the Attorney General and

Reporier for the State of Tennessee and hereby submit this Memorandum of Law in support of

their Motion to Dismiss Plaintiffs Amended Application for a Declaratory Judgment and an

Injunction for lack of subject matter jurisdiction pursuant to Tenn R Civ P 1202(1)

INTRODUCTION

This action arIses out of a meeting held by the Judicial Performance Evaluation

Commission (the Commission) on December 6 2014 Plaintiffs Hooker and Brumit appeared

at that meeting and sought to address the members of the COnmllssion but such request was

denied Thereafter on December 9 2013 Plaintiffs filed this action against the members of the

Commission the Governor Lt Governor House Speaker Secretary of State and Attorney

General all in their official capacities requesting declaratory and injunctive relief Plaintiffs

subsequently filed an Amended Application on December 19 2013

Plaintiff Hooker has identified himself as twice the Democratic nominee for Governor

and has brought this suit on behalf of himself and all other qualified voters and potential

candidates for any appellate judgeship in 2014 See Amended Application Plaintiff Brumit has

identified himself as a Republican and has brought this suit on behalf of himself and all other

qualified voters and others seeking to be heard before the JudiCIal Performance Evaluation

Commission Id Plaintiff Gottlieb has identified himself as an Independent Voter and has

brought this suit on behalf of himself and all other qualified voters and others seeking to be

heard before the Judicial Performance Evaluation Commission Id

In their Amended Application Plaintiffs seek the following relief on behalf of

themselves and all other qualified voters

e A Declaratory Judgment determining that the Commission is improperly constituted in violation of aforesaid requirements involving race and gender

2

An injunction enjoining further actions or discussions by the Commission and its members until the Commission is properly appointed

bull An injunction enjoining all further acts by the Commission until the General Assembly has approved Supreme Court Rule 27 establishing the Judicial Performance Evaluation Commission and declaring all actions taken by the Commission are void and that the Commission cannot operate until Rule 27 is approved

A declaration that the Retention Election Statute is unconstitutional as it provides for the appointment of judges by the Governor to take effect in situations where sitting judges do not seek reelection in violation of Article VII sectsect 4 and 5

bull A declaration that all qualified voters and litigants with grievances against any Judge subject to Retention Election be permitted to be heard by the Commission to challenge the conduct of any Judge under Article I sect 23 and Supreme Court Rule 27 Section 2

bull An order requiring each of the Defendants to declare and disclose through the Attorney General whether each of the Defendants claim that the Retention Election Statute is constitutional or unconstitutional

Amended Application at p 5-6

ARGUMENT

Plaintiffs clearly lack the requisite standing to bring this cause of action either on their

own behalf or on behalf of all qualified voters Additionally Plaintiffs claims for declaratory

relief are either barred by the doctrines of sovereign immunity res judicata andor stare decisis

Arcordingly Plaintiffs Amended Application should be dismissed for lack of subject matter

jUtisdiction pursuant to Tenn R Civ P 1202(1)

3

1 Plaintiffs lack standing to bring this cause of action

In American Civil Liberties Union of Tennessee v Darnell 195 SW 3d 612 (Tenn

2006) the Tennessee Supreme Court clearly spelled out the elements a plaintiff must show in

order to establish standing In that matter the plaintiffs contested the inclusion on the 2006

gubernatorial ballot of the Marriage Amendment which in essence limited the definition of

marriage in the State of Tennessee to being only between a man and a woman The trial court

denied the plaintiffs request for declaratory and injunctive relief and dismissed the plaintiffs

complaint Although the Tennessee Supreme Court granted the plaintiffs motion to assume

jurisdictiOI~ over the matter the Tennessee Supreme Court declined to reach the merits of the

case lnstead the Court found that the plaintiffs did not have standing and dismissed the case

In doing so as a threshhold issue the Tennessee Supreme Court stated Courts employ the

doctrine of standing to determine whether a particular litigant is entitled to have a court decide

the merits ofa dispute or of particular issues Darnell 195 SW3d at 619 (citations omitted)

The Tennessee Supreme Court further stated

Grounded upon concern about the proper-and properly limited-role of the courts in a democratic society Warth [v Seldin] 422 US [490J 498 [(1975)] the doctrine of standing precludes courts from adjudicating an action at the instance of one whose rights have not been invaded or infringed Mayhew v Wilder 46 SW3d 760 767 (TennCtApp2001) perm app denied (Tenn April 30 2001)

The doctrine of standing restricts [t]he exercise of judicial power which can so profoundly affect the lives liberty and property of those to whom it extends to litigants who can show injury in fact resulting from the action which they seek to have the court adjudicate Valley Forge Christian College v Americans United for Separation of Church amp State Inc 454 US 464 473 102 SCt 752 70 LEd2d 700 (1982) Without limitations such as standing and other closely related doctrines the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be

4

d at 61 C)-620

more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights Warth 422 US at 500

In Darnell the Tennessee Supreme Court held that to establish standing a plainl1ff must

show three indispensable elements by the same degree of evidence as other matters on

which the plaintiff bears the burden of proof 195 SW 3d at 620 (emphasis added) citinS

Petty v DaimleriChlysler Corp 91 SW 3d 765 767 (Tenn Ct App 2002) perm app de71led

(Tenn 2002) The first essential element required to establish standing is that plaintiffs must

show a distinct and palpable injury with conjectural or hypothetical injuries being insufficient

Darnell 195 S W3d at 620 The second essential element is a causal connpction between the

alleged injury and the challenged conduct ld The third essential element is a showing that the

alleged injury is capable of being redressed by a favorable decision of the court ld The court

in Darnell further notes

Specifically courts should inquire Is the injury too abstract or otherwise not appropriate to be considered judicially cognizable Is the line of causation between the illegal conduct and injury too attenuated Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative Allen v Wright 468 US 737 752104 SCt 3315 82 LEd2d 556 (1984)

195 SW 3d at 620-21

The Court of Appeals recently summarized the elements of standing within the context of

a declaratory judgment action stating

The doctrines of justiciability including standing ripeness and the prohibition against advisory opinions guide the courts in deciding whether a particular action presents a legal controversy Norma Faye Pyles Lynch Family Purpose LLC v Putnam County 301 SW3d 196 203 (Tenn2009)(citing compare 13 Charles Alan Wright Arthur R Miller Edward H Cooper amp Richard D Freer Federal Practice and Procedure sect 3529 at 612 (3d ed2008)

5

with Barbara Kritchevsky Justiciability in Tennessee Part One Principles and Limits 15 Mem St ULRev 13 n 5 (1984)) It is well-settled that the role of the court is to adjudicate and settle legal rights not to give abstract or advisory opinions Id (citations omitted) A matter qualifies as a legal controversy when and if there exists a real and disputed issue ld Theoretical or abstract questions do not constitute a legal controversy ld Rather there must be a real dispute between parties with real and adverse interests Id The determination of whether a matter is ripe for r~view involves a determination of whether the harm asserted has matured sufficiently to warrant judicial intervention [ ] American Civil Liberties Union of Tennessee v Darnell 195 SW3d 612 620 n 7 (Tenn2006) (quoting Warth v Seldin 422 US 490499 n 1095 SCt 219745 LEd2d 343 (1975))

The doctrine of standing is used by the court to determine whether a plaintitI is properly situated to prosecute the action Marceaux v Sundquist 107 SW3d 527 531 (TennCtApp2002) (quoting Krlierim v Leatherwood 542 SW2d 806 808 (Tenn 1976)) In order to establish standing a party must demonstrate (1) that it has suffered an injury which is distinct and palpable (2) a causal connection between that injury and the conduct complained of and (3) that a favorable decision will redress that injury Id (citations omitted) These elements are indispensable to the plaintiffs case[] ld

Thomas v Shelby County W2010-01472-COA-R3CV 2011 WL 3558171 3 (Tenn Ct App

Aug 12 2011)perm app denied (Tenn Dec 132011)

Here the only injury Plaintiffs have alleged is that the law-specifically Tenn Code

Ann sectsect 16-3-404 17-4-201(a)(1) and Art VII sectsect 4 and 5 of the Tennessee Constitution-are

not being followed with respect to the election and evaluation of appellate court judges in

Tennessee This injury is one that is common to all qualified voters-as specifically

ackT10wledged by Plaintiffs in their Amended Application However the Tennessee Supreme

COlUi has quite plainly held that a plaintiff claiming only harm to his and every citizen s intere~t

in proper application of the Constitution and laws has not demonstrated an injury sufficient to

establish standing

6

Standing also may not be predicated upon an injury to an interest that the plaintiff shares in conunon with all other citizens Mayhew 46 SW3d at 767 Were such injuries sufficient to confer standing the State would be required to defend against a profusion of lawsuits from taxpayers and a purpose of the standing doctrine would be frustrated

Darnell 195 SW3d at 620 See also City of Memphis v Hargett -- SW3d-- 2013 WL

5655807 at 7 (Tenn Oct 17 2013) (citing Darnell) Mayhew v Wilder 46 SW3d 760 768

(Tenn Ct App 2001) (holding that in order to establish standing injury must be distinct from an

injury shared by the public at large) Here Plaintiffs interest in seeing that judges for the

Tenness~e appellate courts are elected and evaluated in accordance with the Tennessee

Constitution and state law is the same interest of the public-at-large and therefore does not give

rise to the kind of redress able personal injury required for standing

Accordingly Plaintiffs have failed to establish the standing necessary to pursue their

claims for declaratory and injunctive relief and their Amended Application should be dismissed

for lack of subject matter jurisdiction

II Plaintiffs claims for declaratory relief are barred by the doctrine of soverrign immunity

The Ule of sovereign immunity in Telmessee is both constitutional and statutory Article

I Section 17 of the Tennessee Constitution provides in part that U[s]uits may be brought against

the State in such a manner and in such courts as the Legislature may by law direct Tennessee

courts have interpreted this section as a grant of sovereign immunity to the State and

accordingly no suit against the State may be sustained absent express authorization from the

Legislature See Spencer v Cardwell 937 S W2d 422 423 (Tenn Ct App 1996) (citing

Coffman lJ City of Pulaski 422 S W2d 429 (1967)) The constitutional prohibition found in

7 I

Article I Section 17 has been codified by the Legislature in Tenn Code Ann sect 20-l3-1 02(a)

which provides as follows

No court in the state shall have any power jurisdiction or authority to entertain any suit against the state or against any officer of the state acting by authority of the state with a view to reach the state its treasury funds or property and all such suits shall be dismissed as to the state or such officers on motion plea or demurrer of the law officer of the state or counsel employed for the state

Pursuant to these constitutional and statutory provisions no suit against the State of

Tennessee may be sustained absent express authorization from the Tennessee Legislature See

Jreenhdl v Carpenter 718 SW2d 268 270 (Tenn Ct App 1986) Moreover this Court has

expressly held that any such legislation authorizing suit against the State being in derogation of

the States inherent exemption from suit

must strictly pursue the constitutional requirements and be so plain clear and urunistakable in its provisions as to the manner and form in which suits may be brought as to leave nothing to surmise or conjecture

State ex ref Allen v Cook 106 SW2d 858 869 (1937) See also Hill v Beeler 286 SW2d

868 87J (Tenn 1956) (any statute permitting suit against the State under Article I Section 17 of

the Constitution of Tennessee must be strictly construed and the jurisdiction cannot be enlarged

by implication) Stokes v University oTennessee 737 SW2d 545 546 (Tenn Ct App 1987)

cert denied 485 US 935 (1988)

In Hill v Beeler this Court interpreted Tenn Code Ann sect 20-l3-102 (the statutory

codifIcation of sovereign inununity) as prohibiting Tennessee courts from entertaining a

declaratory judgment action against a State officer

The Declaratory Judgment Act [Tenn Code Ann sectsect 29-14-101 -113] does not permit the filing of a suit against the State to construe statutes so it seems to us that there is no authority for the

8

suit but that [Tenn Code Ann sect 20-13-102] expressly forbids such an action

286 SW2d 868 871 (Tenn 1956) This rule as announced in Hill has been repeatedly

affirmed by Tennessee appellate courts See eg Colonial Pipeline Co v Morgan 263 SW3d

827 853 (Tenn 2008) LL Bean Inc v Bracey 817 SW2d 292 297 (Tenn 1991) Northern

Telecom Inc v Taylor 781 SW2d 837 839 (Tenn 1989) cert denied 496 US 905 (J 990)

Fuller v Campbell 109 SW3d 737 739 (Tenn Ct App 2003) Spencer v Caldwell 937

SWd at 424 Carter v McWherter 859 SW2d 343 345-46 (Tenn Ct App 1993)

In Cnlonia Pipeline the Tennessee Supreme Court specifically addressed the interplay

between the doctrine of sovereign immunity and the Declaratory Judgment Act in the context of

subject matter jurisdiction In doing so this Court first noted that the concept of sovereign

immunity generally extends to State agencies and State officers acting in their official capacity

263 S W3d at 849 This Court further noted that the concept of sovereign mununity

encompasses both the principle of immunity from suit and the principle of inununity from

liability In accordance with the first principle [s]overeign inununity is jurisdictional inununity

from suit and [t]he constitutionally guaranteed principle of state immunity acts as a

junsdictlOnal bar to an action against the state by precluding a court from exercising subject-

matter jurisdiction Id at 852

TIlis Cowi then held that the Declaratory Judgment Act does not waive sovereign

immunity and that the only instance in which the Act grants subject matter jurisdiction is in a suit

against state officials to prevent them from enforcing an allegedly unconstitutional statute Jd at

850-53 This ruling is consistent with the Courts reasoning in the prior case of Stockton v

Jforris amp Plerce 110 SW2d 480 (1937)

9

d at 850

Essentially an officer acting pursuant to an unconstitutional statute does not act under the authority of the state thus the officer does not enjoy the immunity that would normally be granted pursuant to official authority In other words the officer loses immunity when acting beyond the scope of the power of the State and the power of the State is limited by the state and federal constitutions The issue is not whether the State has waived sovereign immunity for this specifIc classification of suit sovereign immunity simply does not attach

Thus Colonial Pipeline makes clear that the only time sovereign immunity does not bar a

suit againgtt a State agency or State officials for a declaratory judgment is when the suit seeks to

pr~vcnt the enforcement of an unconstitutional statlite ld at 853 (finding the Chancery Court

may issJe declaratory and injunctive relief against the Defendants in their individual capacity so

long as the courts judgment is tailored to prevent the implementation of unconstitutioilal

legislation and does not reach the state its treasury funds or property) Otherwise the

constitutionally guaranteed principle of sovereign immunity bars any suit against a State agency

or State official to construe statutes under the Declaratory Judgment Act even if the declaratory

relief requested does not seek to reach the States treasury funds or property See eg

Greenhill v Carpenter 718 SW2d 268 272 (Tenn Ct App 1986) (holding that Tenn Code

Ann sect 20-13middot102(a) bars not only suits with a view to reach state funds but also suits with a

view to reach the state itself)

In atcordance with these authorities with the exception of the challengE to the

CO1stitutionality of the Retention Election Statute Plaintiffs various requests for declaratory

judgments are clearly barred by the doctrine of sovereign immunity and therefore should be

dismissed for lack of subject matter jurisdiction

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III Plaintiff Hookers challenge to the constitutionality of the Retention Election Statute is barred by the doctrine of res judicata

Even if this Court finds that Plaintiff Hooker has the requisite standing his challenge to

the constitutionality of the Retention Election Statutes is barred by the doctrine of res judicata

The doctrine of res judicata is a claim-preclusion doctrine that promotes finality in litigation

Young v Barrow 130 S W3d 59 64 (Tenn Ct App 2003) This judicial doctrine precludes 1

second suit between the same parties or their privies on the same cause of action with respect to

all the issues wluch were or could have been litigated in the former suit Id at 64 (emphasis

added) See also Gerber v Holcomb 219 SW3d 914918 (Tenn Ct App 2006) (The bar of

the judgment in such cases extends not only to matters actually determined but also to other

matters which in the exercise of due diligence could have been presented for determination in the

prior action (quoting Gaither Corp v Skinner 85 SE2d 909 911 (NC 1955)) Massengill v

Scott 738 SW2d 629 631 (Tenn 1987) (The doctrine of res judicata applies to bar not only

claims that have been litigated but also all claims that could have been litigated in the former

suit) The primary purposes of the doctrine are to promote finality in litigation prevent

inconsistent or contradictory judgments conserve legal resources and protect litigants from the

cost and vexation of multiple lawsuits Sweatt v Tenn Dept of Carr 88 S W3d )67 570

(Tenn Ct App 2002) see also Moulton v Ford Motor Co 533 SW2d 295 296 (Tenn 1976)

([R]es judicata is not based upon any presumption that the final judgment was right or just

Rather it is justifiable on the broad grounds of public policy which requires an eventual end to

litigation) Jordan v Johns 79 SW2d 798 802 (Tenn 1935) ([P]ublic policy dictates Lhat

litigation should be determined withmiddot reasonable expedition and not protracted through

inattentlOI lack of diligence on the part of litigants or their counsel) In order for the doctrine

of relt judzcata to apply it must be demonstrated that (1) a court of competent jurisdiction

11

renderecl a prior judgment (2) the prior judgment was final and on the merits (3) both

proceedings involved the same parties or their privies and (4) both proceedings involved the

same cause af action Lee v Hall 790 SW2d 293 294 (Tenn Ct App 1990) All these

criteria are fully satisfied in this case

A A Court of competent jurisdiction rendered the judgment

The first element is clearly met The Special Supreme Court in State ex nl Hooker v

Thompson 249 SW3d 331 (Tenn 1996) and the Sixth Circuit Court of Appeals in Hooker v

Anderson 12 FedAppx 3232001 WL 700873 (6th CiT 2001)1 have rendered prior judgments

on [vir Hookers challenge to the constitutionality of the Retention Election Statute

B The prior judgment was final and on the merits

The Tennessee Supreme Court has stated that a judgment is final if it resolves all the

issues in the case leaving nothing else for the trial court to do In re Estate of Ridley 270

S W3d 37 40 (Tenn 2008) (quoting In re Estate of Henderson 121 SW3d 643 645 (Tenn

2003) IIere there is no question but that the judgments in both of the above-cited cases were

final

C The same parties or their privies were involved in both proceedings

Under the third element of res judicata the same parties or their privies [must] be

involved in both suits Richardson v Tenn Bd of Dentistry 913 SW2d 446 459 (Term

1995) In the context of res judicata Tennessee courts have rejected privity as defined in the

traditional sense Privity in the traditional sense meant mutual or successive relationship to the

same rights of property but various states have employed other definitions when used in the

lThe Tennessee Supreme Court has recognized that decisions of federal courts are entitled to full faith Jnd credit under Art IV sect I of the federal constitution and therefore are entitled to preclusi ve effect tor purposes of res judicata See Mullins v State 294 SW3d 529 537 n3 (Telm 2009) (citing Whitsey v Williamson County Bank 700 SW2d 561 564 (Tenn Ct App 1985raquo

12

context of res judicata and collateral estoppel Phillips v Gen Motors Corp 669 SW2d 665

669 (Tenn Ct App 1984) See also Harris v Sf Marys Med Ctr Inc 726 SW2d 902905

(Tenn 1987) (holding that [p ]rivity within the meaning of the doctrine of res judicata is privity

as it exists in relation to the subject matter of the litigation) Carson v Challenger Corp No

W2006-00558-COAmiddotR3-CV 2007 WL 177575 at 3 n 3 (Tenn Ct App Jan 25 2007) (no

app filed) Instead Tennessee courts have recognized that in the context of res judicata the

tenn privity does not denote relationships between the parties themselves but rather concerns

a shared identity of interests relating to the subject matter of the litigation Edwards v City of

Memphis No W2007-02449-COA-R3-CV 2009 WL 222622 at 4 (Tenn Ct App July 27

2009) (no app filed) In other words privity is not established by parties being legally

connected either by contract blood or some other means but rather whether they can claim the

same legal rights asserted to the subject matter SunTrust Bank v Stoner No 307-cv-397

2009 WL 998403 at 2 (ED Tenn April 142009) (citations omitted)

This element is also met In all of his previous suits in state and federal court challenging

thmiddot~ constitutionality of the Retention Election Statutes Plaintiff Hooker brought suit against

vanOllS state officials and judges in their official capacities In an official-capacity suit the real

party in interest is the government entity and not the named official Will v Michigan Dept of

StoiC Police 491 US 58 71 (1989) (stating an official-capacity lawsuit is no ditIerent from a

suit against the State itself) See also Bowden Bldg Corp v Tennessee Real Estate Comm n

15 SW3d 434 438-39 (Tenn Ct App 1999) Thus though Plaintiff Hooker has in these

previous suits named various State officials as party defendants privity exists h~re since all State

defendants have been named in their official capacities and the real and only defendant in

interest is the State of Tennessee

13

Accordingly the same parties andor their pnVies are clearly involved In b0th

proceedings and the third element of res judicata is met

D -Both proceedings- involve the same cause of action

The fourth and final element of res judicata requires that both proceedings involve the

same cause of action The Tennessee Supreme Court has adopted the transactional test

espousedoy the Restatement (Second) of Judgments for determining whether two proceedings

constitute the same cause of action for purposes of res judicata See Creech v Addington 2~ 1

SW3d 363 379 (Tenn 2009) Under this standard the concept of a transaction is used in

the broad sense and connotes a natural grouping or common nucleus of operative facts Jd at

380 (quoting Restatement (Second) of Judgments sect 24 cmt b)) The Restatement further

provides [ w ]hat factual grouping constitutes a transaction and what groupings constitute a

sejes are to be determined pragmatically giving weight to such considerations as whether the

facts are related in time space origin or motivation whether they form a convenient trial unit

and whether their treatment as a unit conforms to the parties expectations or business

understanding or usage Restatement (Second) of Judgments sect 24(2) In adopting the

transactional standard the Supreme Court concurred with the drafters of the Restatement that the

modem system of procedure

allows allegations to be made in general form and reads them indulgently it allows allegations to be mutually inconsistent subject to the pleaders duty to be truthful It permits considerable freedom of anlendment and is willing to tolerate changes of direction in the course of litigation [Under the transactional approach tJhe law of res judicata now reflects the expectation that parties who are given the capacity to present their entire controversies shall in fact do so

14

Creech v Addington 281 SW3d at 381 (quoting Restatement (Second) of Judgments sect 24

cmta) Two suits therefore shall be deemed the same cause of action for purposes of res

jUdicata where they arise out of the same transaction or a series of connected transactions Id

Under this transactional test the fourth factor is also met in this case because all of

Plaintiff IIookers lawsuits arise out of the same cause of action Plaintiff H60kers belief that

the R~tention Election Statutes for the selection and evaluation of Tennessee appellate judges

codified at Tenn Code Ann sectsect 17-4-101 et seq are unconstitutional and that any further

retention ekctions under those statutes should be enjoined

The doctrine of res judicata

mandates that if an action results in a judgment on the merits that Judgment operates as an absolute bar to any subsequent action on the same cause between the same parties with respect both to every matter that was actually litigated in the first case as well as to every ground of recovery that might have been presented

Black v RyderPlE Nationwide Inc 15 F3d 573 582 (6th Cir 1994) (emphasis added)

Plaintiff Hookers lawsuit in state court in 1996 and in federal court in 2000 resulted in

final judgments on the merits as to the constitutionality of the Retention Election Statutes for the

selection and evaluation of all appellate judges Additionally the issue Plaintiff Hooker has

raised here ie that the Retention Election Statutes are unconstitutional because they allow for

the appointmept of judges by the Governor in situations where sitting judges do not seek

reelection was specifically raised by Plaintiff in Hooker v Anderson 12 Fed Appxat 326 afld

again in Johnson v 8redesen 2008 WL 701584 at 5 701584 (MD Tenn Mar 13 2008)

affirmed 356 FcC Appx 781 (6th Cir 2009) In both of these cases the court rejected this

argwrent nndine that the conclusion of the Higgins court that jIJdici8l retention elections pass

15

constitutional muster directs the outcome of this case even though the eight-year rather than a

tvvo-year term is at issue Id

Accordingly Plaintiff Hookers challenge to the constitutionality of the Retention

Eleetion Statutes is clearly barred by the doctrine of res judicata and therefore should be

dismissed

IV Plaintiffs Brumit and Gottliebs challenge to the constitutionality of the Retentioll Election Statute is barred by the doctrine of stare decisis

Even if this Court finds that Plaintiffs Bnunit and Gottlieb have the requisIte standing

their challenge to the constitutionality of the Retention Election Statutes is barred by the doctrine

of store decisis

When there is a challenge to the constitutionality of a state statute courts must begin with

the presumption that legislative acts are constitutional State v Pickett 211 SW3d 696 700

(Tenn 2007) (citing Gallaher v Elam 104 SW2d 455459 (Tenn 2003) State v Robinson 29

SW3d 476 469 (Tenn 2000) Riggs v Burson 941 SW2d 44 51 (Tenn 1997) Thus courts

are directed to indulge every presumption and resolve every doubt in favor of the statutes

constitutionality Pickett 211 SW3d at 780 (quoting State v Taylor 70 SW3d 717 720-21

(Tenn 2002) It is an established rule of statutory construction that where one reasonable

interpretation would render a statute unconstitutional and another reasonable interpretation

would render it valid courts are to choose the construction which validates the statute Bailey

v County of Shelby 188 SW3d 539 547 (Tenn 2006) Furthermore when making a facial

challenge to a statute a plaintiff must demonstrate that there are no set of circumstances

under which the act would be valid Davis-Kidd Booksellers Inc v McWherter 866 SW2d

S20 525 (Tenn 1993) (quoting United States v Salerno 481 US 739745107 SCt 2095 95

LEd2d 697 (1987raquo Thus in order to be found invalid a statute must be plainly at odds with a

16

constitutional provision Perry v Lawrence County Election Comm n 411 SW2d 538 539

(Tnn 1967) and a heavy burden is placed on one who attacks a statute Bailey 188 S W3d

at 547 Tennessee ex reI Maner v Leech 588 SW2d 534 540 (Tenn 1979) Furthermore a

challenge to a states constitutionality does not give a court license to second-guess the General

Assemblys policy judgments Draper v Westerfield 181 SW3d 283 290 (Tenn 2005) or to

inquire into the motives of the General Assembly Cosmopolitan Life ins Co v Northington

300 SW3d 911 918 (Tenn 1957)

Under current Tennessee case law the constitutionality of the Retention Election Statute

has twice been upheld by the Tennessee Supreme Court See State ex rei Higgins v Dunn 496

SW2d 480 487-90 (Tenn 1973) and State ex rel Hooker v Thompson 249 SW3d 331 337-

38(Tenn 996) Plaintiffs have presented no reason compelling or otherwise to persuade tms

court that it should disturb the Supreme Courts ruling in these two decisions and therefore this

court is bound by the decisions under the doctrine of stare decisis

The doctrine or rule of stare decisis holds that when a principle of law has been

established by a court of competent jurisdiction that then in that State where such rule is

established it becomes settled and binding upon the court[ s] of that State and should be followed

in simIlar cases Staten v State 191 Tenn 157 159 (1950) The doctrine of stare decisis is

one of commanding importance giving as it does firmness and stability to principles of Jaw

in re Estate of McFarland 167 SW299 305 (Tenn 2005) (quoting J T Fargason Co v Ball

128 Tenn 137 159 SW 221 222 (1913)) Metro Govf aNashville amp Davidson County v

Poe 383 SW2d 265 277 (Tenn 1964) The doctrine of stare decisis promotes consistency by

adherence to settled principles of law recognized and followed in earlier cases Staten v State

17

191 Tenn at 159 Such stability in the law allows individuals to plan their affairs and to safely

judge their legal rights In re Estate aMcFarland 167 SW3d at 305-306

The rule of stare decisis is peculiarly applicable in the conslluction of written

constitutions

A cardinal ru1e in dealing with written instruments is that they are to receive an unvarying interpretation and that their practical construction is to be unifonn A constitution is not to be made to mean one thing at one time and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion

McCulleymiddot State (State Report Title The Judges Cases) 53 SW 134 middot139-40 (Tenn 1899)

internal citations omitted) See also Barnes v Walker 234 S W2d 648 650 (1950) (The rule

[of stare decisis ] is even more rigidly followed with reference to decisions construinf

c0nstitutionalprovisions and legislative enactments) State v Nashville Baseball Club 154

s W 1151 J 154 (Tenn 1913) (DeCisions construing the Constitution or acts of the Legislature

should be followed in the absence of cogent reasons to the contrary inasmuch as it is of the

uimost importance that our organic and statute law be of certain meaning and fixed

interpretation )

Stare decisis admonishes courts not to overturn decisions in an arbitrary or cavalier

manner Ferguson v Ram Enterprises Inc 900 SW2d 19 21 (Tenn 1995) State v

Kendricks 891 SW2d 597 603 (Tenn 1994) and the Tennessee Supreme Court has recognized

that its power to oven-ule fonner decisions is very sparingly exercised and only when the reason

is comprlling Edingbourgh v Sears Ruebuck amp Co 337 SW2d 13 14 (Tenn 1960)

18

As previously discussed the Tennessee Supreme Court in State ex reI Higgins v Dunn

496 SW2d 480 487-90 (Tenn 1973) first addressed the issue of the constitutionality of

retention elections of appellate court judges and found that such elections are not in conflict

with the provisions of the Constitution of our State Three years later the Special Supreme

~ourt uneqUivocally held that the issue of whether yesno retention elections violate the

Constitution of Tennessee has previously been decided by the Tennessee Supreme Court in the

csse of State ex reZ Higgins v Dunn and no compelling reason has been gi ven to persuade this

Court that it should disturb that ruling State ex reZ Hooker v Thompson 249 SW3d 331

337-38 (Tenn 1996) (citation omitted) Similarly Plaintiffs have presented no compelling

reason for this Court to disturb the rulings in these two cases and unless and until these decisions

are overturned by the Supreme Court this Court should follow them under the doctnne of stare

J bullbull

ueClSlS

Additinnally Defendants would note that contrary to Plaintiffs assertions the issue of

constitutiolality of the Tennessee Plan under Article VII sectsect 4 and 5~ middotof the Tennessee

Constitution is currently pending before the Special Supreme Court in the case of Hooker v

Haslam No M2012-01299-SC-RI1-CV Thus under the doctrine of prior suit pending and in

thf interests of judicial economy and to avoid the possibility of inconsistent rulings this Court

should deny Plaintiffs request for declaratory and injunctive relief as to the constitutionality of

ille Retention Election Statutes

CONCLUSION

For these -reasons the Defendants respectfully request that this Court grant their motion

to dismissmiddot the Amended Application in its entirety and with prejudice ~

Respectfully submitted

19

middot ROBERT E COOPER JR Attorney General and Reporter

- tk [j--ET M KLEINFELTER~89)

D uty Attorney General ublic Interest Division

Office of Attorney General PO Box 20207 Nashville TN 37202 (615)741-7403

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Memorandum has been sent by first class US Mad postage prepaid to

John Jay Hooker 115 Woodmont Blvd Nashville TN 37205

Walter Brwnit 30 East Dale Court Greeneville TN 37745

Anthony Gottlieb PO Box 1770 Hendersonville TN 37077

This3Qn day of December 2013

20

T M KLEfNFEL TER