Presentation of Info to the DCGJ Sept 16 2014

8/11/2019 Presentation of Info to the DCGJ Sept 16 2014

1/31

INFORMATION FOR THE GRAND JURY Davidson County

SEPTEMBER 16, 2014

Photo: Walter Brumit

Tennessee Judicial Performance Evaluation Commission

The photograph taken January 17, 2014 shows the Judicial Performance Evaluation

Commission meeting, in violation of the Final Order from 1st Circuit Court Davidson

County, TCA 17 4201(b)(6) and Supreme Court Rule 27, mandating that the appointments to the Commission, " approximate the population of the state with respect to race and gender."

The Commission, as seated above, is comprised of seven white men, one white woman,

and one African American woman and no African American man.

Information for the DCGJ Page 1 of 31 09/15/2014


2/31

INFORMATION FOR THE GRAND JURY

J ohn J ay Hooker , Wal t Br umi t , Tony Got t l i eb, Hol l y Spann

and For r est Shoaf come bef or e t he Gr and J ur y and pr ocl ai m t heGr and J ur y has a dut y under Rul e 6 of t he Rul es of Cr i mi nal

Pr ocedur e t o make " i nqui r y" and " r epor t " t o t he cour t t hat t he

j udges of t he Supr eme Cour t and t he j udges of t he Cr i mi nal and

Ci vi l Cour t s of Appeal wer e unl awf ul l y el ect ed. See Appendix

Fur t her mor e t hey " abused" t hei r of f i ce when t hey f i l ed t he

Decl ar at i on of Candi dacy based on an i nval i d r ecommendat i on

f r om t he J udi ci al Per f or mance Eval uat i on Commi ssi on ( J PEC) ,

whi ch was mal - appor t i oned wi t h Seven ( 7) men and Two ( 2) women.

I t i s a f act t hat a val i d r ecommendat i on f r om t he J PEC i s a

qual i f i cat i on t o be on t he bal l ot or hol d t he of f i ce. Ther ef or e,

t he j udges whose names wer e on t he August 7, 2014 bal l ot and

r et ent i on el ect ed ar e not seat ed accor di ng t o l aw.

Consequent l y, t he Supr eme Cour t had no l awf ul power ,yest er day, t o appoi nt an At t or ney Gener al , and when t hey made

such an appoi nt ment , t hey abused t hei r of f i ce whi ch f act t hi s

Gr and J ur y hopef ul l y wi l l r epor t t o t he ci t i zens of t he St at e of

Tennessee i n t he name of j ust i ce.

No doubt , t hese J udges, al l of t hem wel l knew t hat t hey

wer e not ent i t l ed t o r el y on an i nval i d r ecommendat i on f r om

t he J PEC and t hey ar r ogant l y and i nt ent i onal l y vi ol at ed t he l aw

f or t hei r own economi c benef i t , i n vi ol at i on of t he Of f i ci al

Mi sconduct st at ut e Tenn. Code Ann. 39- 16- 402 See Appendix



3/31

On December 9, 2013, t he case of Hooker et al v. Ramsey et

al was f i l ed i n t he Ci r cui t Cour t of Davi dson Co. chal l engi ng

t he composi t i on of J PEC. The l awsui t cl ai med t hat J PEC was not

composed i n accor dance wi t h Tenn. Code Ann. 17- 4- 201( b) ( 6) and

Supr eme Cour t Rul e 27 and t her ef or e coul d not gi ve a val i d

r ecommendat i on becaus e t he Commi ssi on was composed of 7 men and

2 women when t he af or esai d st at ut e r equi r ed t hat t he member s of

t he Commi ss i on appoi nt ed by t he Speaker of t he House and t he

Speaker of t he Senat e be appoi nt ed i n accor dance wi t h t he

appr oxi mat e popul at i on of t he st at e wi t h " r espect t o r ace and

gender . " See Appendix

On J anuar y 15, 2014, J udge Hami l t on Gayden of t he Fi r st

Ci r cui t Cour t of Davi dson Count y hel d a hear i ng; t he Def endant s

wer e r epr esent ed by t he At t or ney Gener al ' s of f i ce. On J anuar y

15, 2014, J udge Gayden f i l ed a Fi nal Or der : See Appendix

FINAL ORDER

4. This Court finds that all Plaintiffs have standing to seek a

declaratory judgment as to the validity of the composition of the Judicial

Performance Evaluation Commission under the provisions of Tenn. Code

Ann. 17 4201(b)(6) which reads:

The appointing authorities for the judicial performance Evaluation

Commission shall make appointments that approximate the population of

the state with respect to race and gender ...the speaker shall receive, but

shall not be bound by, recommendations from any interested person or

organization."

5. This Court finds that the language of the legislative enabling

statute for the membership of the nine member Judicial Evaluation

Commission language is mandatory, not permissive, and requires that the



4/31

appointing authorities for the Judicial Performance Evaluation Commission

shall make appointments that approximate the population of the state

with respect to race and gender.

This Court takes judicial notice of the fact that the population of Tennessee, according to the United States Census Bureau for 2012 is 52% women, 48% men and 17% African American, rounded off.

This Court finds that the composition of the Judicial

Performance Evaluation Commission consists of nine men and two women

and therefore only represents 22% of the female population and 11 % of

the African American population.

6. This Court concludes that the composition of the current

Judicial Performance Evaluation Commission is invalid, ab initio under Tenn. Code Ann. 17 4201 (b)(6) and is discriminatory against the female

and black population of the State of Tennessee, in violation of the Equal

Protection and Due Process clauses of both the United States and

Tennessee Constitutions.

Not wi t hst andi ng J udge Gayden' s Fi nal Or der of J anuar y 17,

2014, t he Commi ssi on unl awf ul l y composed of Seven ( 7) men and

Two ( 2) women met and t ook a vot e, and r ecommended al l t he

af or esai d j udges' names be pl aced on t he bal l ot f or a r et ent i on

el ect i on. The Commi ssi on made t hese r ecommendat i ons i n

cont empt uous di sr egar d of J udge Gayden' s or der of J anuar y 15,

2014 and t he or al ar gument of t he pl ai nt i f f s i n t hat case who

r epeat edl y r equest ed t hat t he Commi ss i on be r ecomposed i n

accor dance wi t h t he Tenn. Code Ann. 17- 4- 201( b) ( 6) and Supr eme

Cour t Rul e 27 because t he composi t i on of t he Commi ss i onconsi st i ng of Seven ( 7) men and Two ( 2) women di scr i mi nat ed

agai nst t he women and t he bl ack popul at i on, speci f i cal l y men i n

t he bl ack popul at i on, i n vi ol at i on of t hei r ci vi l r i ght s



5/31

pr ot ect ed by bot h t he Feder al and St at e Const i t ut i ons.

See Appendix

Never t hel ess, t he Commi ss i on t ook no act i on t o r ecompose

i t sel f i n accor dance wi t h t he l aw, Tenn. Code Ann. 17- 4- 201( b)

( 6) and Supr eme Cour t Rul e 27 despi t e t he f act t hat t he member s

of t he Commi ssi on, composed of Seven ( 7) men and Two ( 2) women,

wel l knew t hat t hey wer e pr oceedi ng i n vi ol at i on of t he l aw as

t hey wer e Def endant s i n t he Hooker et al v Ramsey et al as wer e

member s of t he Supr eme Cour t . See Appendix

Ther eaf t er , t he Supr eme Cour t t ook no act i on, t o r equi r e

t he Commi ssi on t o r ecompose when t he member s of t he Supr eme

Cour t had t he dut y t o do so under Supr eme Cour t Rul e 11.

I nst ead, t he Supr eme Cour t composed of Chi ef J ust i ce Wade,

J ust i ces Lee, Cl ar k, Hol der and Koch al l owed t he Commi ssi on t o

make i nval i d r ecommendat i ons gi vi ng al l t he j udges eval uat ed t he

r ecommendat i on needed t o f i l e a Decl ar at i on of Candi dacy t o be

r et ent i on el ect ed f or t he economi c benef i t of t he J udges andt o t he har m of al l ot her s . See Appendix

The f act i s t he J udi ci al Per f or mance Eval uat i on Commi ssi on

i s a br anch of t he j udi ci al syst em and consequent l y t he Supr eme

Cour t has " super vi sor y power s" over t he Commi ss i on, Supr eme

Cour t Rul e 27, Sec. 2. 01 and coul d have and shoul d have r equi r ed

t he Commi ss i on t o r ecompose bef or e i ss ui ng any r ecommendat i on.

See Appendix

Consequent l y, i t i s cr yst al cl ear t hat t he member s of t he

J PEC and t he member s of t he Supr eme Cour t abused t hei r of f i ces

and engaged i n Of f i ci al Mi sconduct Tenn. Code Ann. 39- 16- 402.



6/31

Ther ef or e, under t he r ul e of l aw i t i s t he dut y of t hi s Gr and

J ur y t o i ssue t he r epor t t o i nf or m t he publ i c of t hi s f act under

t he Rul es of Cr i mi nal Pr ocedur e, Rul e 6 based upon t he af or esai d

f act s and t he l aw ci t ed her ei n. See Appendix

Regr et t abl y, t he i nt egr i t y of t he j udi c i al sys t em of

Tennessee has been gr eat l y damaged by t he conduct of t hese

J udges, however , by exposi ng t hem i n a r epor t i ssued by t he

Gr and J ur y asser t i ng t hat t he August 7 t h 2014 r et ent i on el ect i on

vi ol at es t he af or esai d l aws and i s t her ef or e nul l and voi d, i t

can be r est or ed by t he act i on of t hi s Gr and J ur y and t he

i nt egr i t y of t he j udi ci al syst em of Tennessee can be r ebor n!

APPENDIX

RULES OF CRIMINAL PROCEDURE Rule 6. THE GRAND JURY

(e) It is the duty OF THE GRAND JURY to:

(1) Inquire into, consider, and act on all criminal cases submitted to it by the

District Attorney General;

(2) Inquire into any report of a criminal offense brought to its attention by a member

of the Grand Jury,

(3) Inquire into the condition and management of prisons and other county buildings

and institutions within the county;

(4) Inquire into the condition of the County Treasury;

(5) Inquire into the correctness of sufficiency of county officers bonds;

(6) Inquire into any state or local officers abuse and,

(7) report the results of its actions to the court.

(f) Individual Grand Juror's Duty to Inform. If a member of the grand jury

knows or has reason to believe that an indictable public offense has been committed in the

county, he or she shall inform the other jurors, who shall investigate it.



7/31

IN THE FIRST CIRCUIT COURT FOR DAVIDSON COUNTY, T E L J t : EJOHN JAY HOOKER, WALTER ) 2 1 ~ J A R 1 5AHI :48BRUMIT , and ANTHONY )GOTTLIEB, )

Plaintiffs,

v

LT. GOVERNOR RON RAMSEY,HOUSE SPEAKER BETH HARWELL,HON. ROBERT JONES, MICHAELE TANT, CHRISTOPHER CLEM,

HENRIETTA GRANT, J GREGORYGRISHAM, RON. ROBERTMONTGOMERY, JR., HON. JMICHAEL SHARP, RENATASOTOJOSEPH A WOODRUFF, DAVIDHAINES, SECRETARY OF STATETRE HARGETT GOVERNOR BILLHASLAM, and ATTORNEYGENERAL ROBERT E. COOPER, JR.

Defendants.

)

)

)

)

FINAL ORDER

RICH l RDR. ROGKER ClERK

~ ~No 13C-S012

This cause came on to be heard on January 14, 2014, on the Defendants' Motion

To Dismiss Plaintiffs' Amended Application for Declaratory Judgment and an Injunction, on

Plaintiffs Motion to Amend the Amended Application to name Holly Spann as a Plaintiff, and on

the Motion to Allow and Accept Amicus Briefo f Mr

. JamesD

R. Roberts,Jr

Based0 0

the

pleadings of the parties, the arguments o f counsel , the applicable law and the record as a whole,

the Court makes the following findings of fact and conclusions of law :



8/31

I. This Court finds that Plaintiffs general challenges to the constitutionality o the

Retention Election Statutes, Tenn. Code nn 17-4-101, et seq. are currently pending before the

Special Supr eme Court in the case o Hooker v Haslam No. M2012-01299-SC-Rll-CV , and

therefore, such claims shall be dismissed under the doctrine o prior case pending.

2. TIlls Court finds that Plaintiffs , John Jay Hooker, Walter Brumit and Anthony

Gottlieb have standing to challenge lleged procedural denials of their constitutional right to

present grievances before the Evaluation Commission, to challenge the conduct o any Judge

under Article 1 sect. 23 and Supreme Court Rule 27, Section 2, alleging they were denied that

right , stating a recognizable basis affording them standing both as to subject matter and personal

standing, i true.

This Court also finds that John J. Hooker by reference, is a professed judicial candidate

based on findings in the case of Hooker v Haslam No. M2012-01299-SC -RII-CV, and thus

has separate standing.

This Court finds that Plaintiffs motion to amend to add Holly Spann as a Plaintiff , -

representating women o Tenoessee, is well-taken , and as such she also has standing in her

own behalf and as representative o the female population o he State .3. This Court finds that the decision o Mander v. Board o Professional Responsibility

M2012-0079-COA-R3 -CV , 2013 WL 2490576 (Tenn. Ct. App. Jillle 6, 2013 is controlling as to

the issue of the validity ofTeno. Supr. Ct. R. 27, and the Plaintiffs challenges to the

validity o Rule 27 should be dismissed.

The Court further finds that the Supreme Court has the sole authority to establish the

procedures o its agencies pursuant to Teno. Sup. Ct. R. 27 and the Supreme Court has

established the procedures for the Judicial Perfonnance Evaluation Commission.

The court finds that it is without authority or power to issue injilllctive relief against the

Judicial Evaluation Commission or its members as the sole power to administer the Judicial



9/31

Evaluation Commission lies with the Supreme Court o Tennessee .

4. TIus court finds that all Plaintiffs have standing to seek a declaratory judgment as to

the validity o he composition o the Judicial Perfonnance Evaluation Commission under the

provisions o the Tenn . Code Ann. 17-4-201(b)(6) which reads : The appointing authorities for

the judicial performance evaluation commission sh ll make appointment s that pproxim te the

population of the state with respect to race and gender. . . he speakers shall receive, but shall not

be bound by, recommendations from any interested person or organization.

5. This court finds that the language o the legislative enabling statute for the

membership o the nine member Judicial Evaluation Commission language is

mandatory , not permissive, and requires that the appointing authorities for the Judicial

Performance Evaluation Commission sh ll make appointments that pproxim te the population

o the state with respect to race and gender .

Tbis Court takes judicial notice of the fact that the population o Tennessee ,

according to the United States Census Bureau for 2012 is 52 women, 48 men

and 17 African- American, rounded off.

This Court finds that the compositiono

the current Judicial Perfonoance EvaluationCommission consists o nine men and two women and therefore , only

represents 22 o the female population of this state and 11 % o African - Americans

popUlation.

6. This Court concludes that the composition o the current Judicial Perfonnance

Evaluation Commission is invalid b initio under Tenn. Code Ann 17-4-201(b)(6) and is

discriminatory against the female and black population of the State o Tennessee . in violation o

the Equal Protection and Due Process Clauses o both the United

States and Tennessee Constitutions .

7. This Court declines, however , to enjoin any further actions of the



10/31

Judicial Performance Evaluation Commission and denies Plaintiffs' request for injunctive relief

nor to declare that the actions o the Judicial Evaluation Commission null and void , as such

declarations would invade the province o the Supreme Court o Tennessee.

IT IS THEREFORE ORDERED ADJUDGED and DECREED that:

1. Defendants Motion to Dismiss Plaintiffs' general challenge to the

constitutionality o the Retention Election Statutes is granted ;

2. Defendants Motion to Dismiss Plaintiffs' challenge to validity o Tenn. Sup.

Ct. R. 27 is granted;

3. Defendants Motion to Dismiss Plaintiffs' Amended Application on thegrounds that Plaintiffs lack standing is denied;

4. Plaintiffs' request for a declaratory judgment as to the validity o the

composition o the Judicial Performance Evaluation Commission is granted and the Court rules

that the Judicial Performance Evaluation Commission is invalid under Tenn. Code Ann. 17 4

201 (b)(6) and unconstitutional under the Due Process and Equal Protection Clauses o he United

States and Tennessee Constitutions as being discriminatory toward the female and'black

population o the State of Tennessee;

5. The Plaintiffs' request for injunctive relief enjoying any further actions o

the Judicial Performance Evaluation Commission is denied; the Plaintiffs' petition for this court

to declare the actions ofthe Judicial Evaluation Conunission null and void is denied;

6. That Plaintiffs' Motion to Amend to add Holly Spann as a PJaintiffis

granted;

7. That Mr. Roberts ' Motion to File an Amicus Brief is granted; and

8. That all costs are assessed against the Defendants for which execution may

issue.



11/31

IT IS SO ORDERED ~ 4 4Judge Hamilton V Gayden Jr

I hereby certify that an exact and true copy o the foregoing has been mailed to:

Janet KleinfelterDeputy Attorney GeneralOffice o Attorney GeneralP O Box 20207Nashville TeIUlessee 37202

John Jay Hooker5 Woodmont Blvd .

Nashville Tennessee 37205

On this the ~ yo January 2014

Clerk



12/31

Grand Juryinal eport

April - June 2014

The Honorable Judge Seth W. NormanCriminal Court o Davidson County T


SEE SPECIAL CASE LAST PAGE

RE: GRAND JURY

APPEARANCE - JOHN JAY HOOKER

WALT BRUMIT - TONY GOTTLIEB


13/31

resentment

We heard one Presentment on June 16, 2014 by Pros e cutor Charles Robinson regardingDefendant Se rgio Espinosa and Defendant Joseph Progar .Our charge was to review the Police Shooting Disposition - Recommend no indictment . The grand jury heard the presentment and decided that the two poli ce officers actedappropriately and should not be indicted.

Special CaseWe were privileged to meet John Jay Hooker, who came to present a concern regard ingappointment of judges in Tenne ssee. He along with attorneys Tony Gottlieb and Walter Bru it ,brought documents from their lawsuit challenging the constitutionality of the RetentionElection Statues .

They stated that , according to the state constitution, it is unlawful for appellate court judges tohave their name on a ballot without opposition. Judges running unopposed must be

recommended to the governor by the Judicial Performance Evaluation Commission. They statedthat the JPEC is not properly seated and is not a balanced commission, and therefore does notfairly repre sent the population. They bel ieve because of this practice judges are beingunlawfully appointed by the governor and not truly elected by the public.

The case went to court and it was concluded that the JPEC was unlawfully seated and violatedthe State const itution . When presented with this finding, the JPEC declined to take action torectify the circum stance, and in violation of the law, recommended all 22 appellate judges whowere seeking to run in a Retention Election without any candidate opposition.

This was a compelling and convincing case , and was very well prepared and presented .However, due to time constraints by this jury, we were not able to take action . We recommendthat subsequent grand juries allow Hooker, Gottlieb and Bruit to again present their case andallow time for steps to be taken that will bring about change in the process of electing appellatejudges in Tennessee.

n closingWe all agree that serving on the Grand Jury has been the experience of a life -time. As jurorstogether for three months, we bonded as family and have enjoyed getting to know oneanother. We recognized the gravity of our responsibilities and we took our charge very

seriously; however, we had a good deal of fun and laughter, and made new friends along theway .We were proud to serve on the Grand Jury. We come away with a broader understanding of thecriminal justice system and a deepe r appreciation for the individuals who serve our community .We believe the city of Nashville is in good hands.


FINAL PAGE -Davidson County Grand Jury

*

* JOHN JAY HOOKER et al, - v- LT. GOVERNOR RON RAMSEY et al

IN THE CIRCUIT COURT FOR DAVIDSON COUNTY Case No. 13C-5012


14/31

APPENDIX

TENNESSEE CONSTITUTION

ARTICLE X, 1. Oath of office

Every person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties

thereof, take an oath to support the Constitution of this State, and of the United States, and an oath of office.

Oath of OfficeI, [Insert Name], do solemnly swear that I will support the Constitution of

the United States of America and the Constitution of the State of Tennessee, thatI will administer justice without respect of persons, and that I will faithfully andimpartially discharge all the duties incumbent upon me as Judge of the [InsertCourt District], of the State of Tennessee, to the best of my skill and ability, sohelp me God. This the [Insert Day, Month Year].

SUPREME COURT RULE 10: Canon 1

A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND

IMPARTIALITY OF

THE

JUDICIARY,

AND

SHALL

AVOID

IMPROPRIETY

AND

THE

APPEARANCE

OF IMPROPRIETY.

RULE 1.1 Compliance with the law

A judge shall comply with the law, including the Code of Judicial Conduct.

RULE 1.2 Promoting Confidence in the Judiciary

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the

appearance of impropriety.

RULE 1.3 Avoiding Abuse of the Prestige of Judicial Office

A judge shall not abuse the prestige of judicial office to advance the personal or

economic interests of the judge or others, or allow others to do so.



15/31

APPENDIX

SUPREME COURT RULE 10: Canon 2

Rule 2.12 Supervisory Duties

(B) A judge with supervisory authority for the performance of other judges shall take

reasonable measures to ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of matters before them.

SUPREME COURT RULE 11: Supervision of the Judicial System.

I. General.

This Rule is promulgated pursuant to the inherent power of this Court and particularly

the following subsections of T.C.A. 16 3502, providing that the Supreme Court shall have

the power:

(5) To take affirmative and appropriate action to correct or alleviate any condition or

situation adversely affecting the administration of justice within the state.

(6) To take all such other, further and additional action as may be necessary to the orderly administration of justice within the state, whether or not herein or elsewhere enumerated.

Its purpose is as follows:

c. To promote the orderly and efficient administration of justice within the State.

II. Functional improvement of judicial system

a. The judicial system of this State henceforth will function as an integrated unit under the direction and supervision of the Supreme Court.

SUPREME COURT RULE 27: Judicial Performance Evaluation Program.

1.04. The Tennessee General Assembly has enacted laws that establish a merit based

process for selecting and retaining the members of Tennessee's three appellate courts. To promote informed retention decisions, Tenn. Code Ann. 17 4201(c) requires the Judicial

Performance Evaluation Commission to publish reports concerning each appellate judge



16/31

APPENDIX

seeking election to an unexpired term or election or reelection to a full eight year term. In

addition to its primary purpose of self improvement, the Judicial Performance Evaluation

Program must provide information that will enable the Judicial Performance Evaluation Commission to perform objective evaluations and to issue fair and accurate reports

concerning each

appellate

judge's

performance.

1.05. In Tenn. Code Ann. 17 4201(a)(1), the Tennessee General Assembly has given

the Tennessee Supreme Court the responsibility to promulgate a rule establishing the judicial performance evaluation program for appellate judges.

Section 2. Judicial Performance Evaluation Program.

2.01. In accordance with this Court's inherent supervisory authority over the court

system and the judges, and pursuant to Tenn. S. Ct. R. 11, Tenn. Code Ann. 16 3501 and

Tenn. Code Ann. 17 4201(a)(1), there is hereby established a Judicial Performance Evaluation Program as part of the judicial branch of state government.

2.02. The Judicial Performance Evaluation Program shall be administered by the

Judicial Performance Evaluation Commission established by Tenn. Code Ann. 17 4201(b).

2.03. The Judicial Performance Evaluation Commission shall have the responsibility for the design, the implementation, and the day to day operation of the Judicial Performance Evaluation Program. The Commission's decisions shall be consistent with this rule, and the

Commission has no power to waive or to modify any provision of this rule.

Section 4. Evaluation Procedure for Appellate Judges .

4.01. The Judicial Performance Evaluation Program shall include the regular evaluation of the performance of appellate judges. The evaluations shall be carried out using

professionally accepted methods to provide objective and reliable evaluations and to reduce

the risk of unfair ratings and statistical comparisons. Evaluations shall be based on sufficient data to ensure the statistical reliability of the evaluation information.

4.02. The Judicial Performance Evaluation Program for appellate judges, in addition to being used for self improvement purposes, shall also be used for the evaluation required of appellate judges seeking election to an unexpired term or election or re election to a full eight year term under Tenn. Code Ann 17 4201(b).

Section 5. Evaluation Procedure for Appellate Judges for Retention Recommendations.



17/31

APPENDIX

5.01. The Judicial Performance Evaluation Commission created by Tenn. Code Ann.

17 4201(b) shall perform evaluations of all appellate judges seeking election to an unexpired term or election or reelection to a full eight (8) year term for the purpose of aiding

the public

in

evaluating

the

performance

of

the

appellate

judges

in

accordance

with

the

provisions of this rule.

5.02. (a) The Judicial Performance Evaluation Commission's evaluation shall be consistent with the criteria in Section 3.01 and shall be based on the results of the evaluation

surveys, on the personal information contained in an approved self reporting form, and on such other comments and information as the Commission shall receive from any source.

(b) If, because of gubernatorial appointment, an appellate judge holds office less than one

year before the filing deadline of a declaration of candidacy for either an unexpired term or a

full eight year term, and evaluation surveys are not available, the Judicial Performance Evaluation Commission shall conduct an evaluation and make a retention recommendation using an approved self reporting form, the judge's application, and other reliable information.

5.03. The Judicial Performance Evaluation Commission, or a panel thereof, shall conduct a public interview with each appellate judge seeking election to an unexpired term

or re election to a full eight year term. The Commission's meetings and deliberations shall be public.

5.04. The Judicial Performance Evaluation Commission may accept, and in its discretion, may solicit public comments concerning the performance of the appellate judges seeking election to an expired term or election or re election to a full eight year term. The

Commission shall provide each appellate judge with a reasonable opportunity to respond to any information or comment received by the Commission regarding that judge prior to the

preparation of the Commission's evaluation of that judge.

TCA 17 4115 Declaration of candidacy for reelection for full term

(a) (1) An incumbent appellate judge who seeks election or re election for a full eight

year term must qualify by filing with the state election commission a written declaration of

candidacy.



18/31

APPENDIX

(b) (1) If the declaration of candidacy is timely filed, only the name of the candidate,

without party designation, shall be submitted to the electorate in this state in the regular

August election. Each county election commission of the state shall cause the following to be placed on the ballot:

TCA 17 4201

(a) (1) By rule, the Supreme Court shall establish a judicial performance evaluation

program for appellate court judges. The purpose of the program shall be to assist the public in

evaluating the performance of incumbent appellate court judges. The judicial performance evaluation commission, established pursuant to subsection (b), shall perform the required evaluations. The commission shall make a recommendation either "for retention" or "for replacement" of each appellate court judge; provided, that the commission shall not evaluate or make any retention recommendation with regard to any appellate judge whose term of

office is

abbreviated

because

of

death,

resignation

or

removal.

Furthermore,

the

commission

shall not include within the final report, publicly disclosed pursuant to subsection (c), an

evaluation or retention recommendation for any appellate judge whose term of office is abbreviated because of death, resignation or removal or who fails to timely file a declaration of candidacy as required by 17 4114(a) or 17 4115(a), unless the judge is a candidate for another office subject to evaluation under this section.

(B) As soon as is reasonably practicable under the circumstances, but not less than three (3) days prior to the deadline for filing a declaration of candidacy required by 17 4114(a) (2) or 17 4115(a) (2), the judicial performance evaluation commission shall provide an incumbent appellate judge with a draft of the commission's evaluation and shall provide the judge with a reasonable opportunity to comment or respond either personally or in writing.

(b) (1) the judicial performance evaluation commission shall be composed of nine (9) members.

(2) The speaker of the senate shall appoint four (4) of the members, of whom

one (1) shall be a state court judge, two (2) shall be attorney members and one (1) shall be a

non attorney. No more than two (2) of those appointed shall reside in the same grand division.

(3) The speaker of the House of Representatives shall appoint four (4) of the members, of whom one (1) shall be a state court judge, one (1) shall be an attorney, and two

(2) shall be non attorney members. No more than two (2) of those appointed shall reside in



19/31

APPENDIX

the same grand division.

(4) The speaker of the senate and the speaker of the House of Representatives shall jointly appoint one (1) state court judge.

(5) The Supreme Courts evaluation procedure may permit the judicial performance evaluation commission to perform an evaluation with less than the full membership in panels, but the full commission shall approve the evaluation.

(6) The appointing authorities for the judicial performance evaluation commission shall make appointments that approximate the population of the state with respect to race and gender. In appointing attorneys to the commission, the speakers shall receive, but shall not be bound by, recommendations from any interested person or organization.

TCA 39 16 402 OFFICIAL MISCONDUCT

(a) A public servant commits an offense who, with intent to obtain a benefit or to harm

another, intentionally or knowingly:

(1) commits an act relating to the servants office or employment that constitutes an unauthorized exercise of official power;

(2) commits an act under color of office or employment that exceeds the servants official power;

(3) refrains from performing a duty that is imposed by law or that is clearly inherent in the nature of the public servants office or employment;

(4) Violates a law relating to the public servants office or employment; or (5) Receives any benefit not otherwise authorized by law.

(d) an offense under this section is a class E felony



20/31

July 18 th 2014

Arnett Bodenhamer Grand Jury Foreman Davidson County Grand Jury Washington Square Bldg. Suite 500 222 2nd Ave. North Nashville TN 37201

Dear Mr. Foreman:

I would like to officially request that Walt Brumit, Tony Gottlieb, Holly Spann and I be permitted to come before your Grand Jury regarding a matter of the highest public interest as soon as possible as suggested in the report of the previous Davidson County Grand Jury, before whom we appeared. Their report made the following observations, regarding the August 7 th 2014 election for appellate

judges. For your convenience the Grand Jury report said:

The case [Hooker, Brumit, Gottlieb &Spann vs. Lt. Governor Ron Ramsey etal ] went to court and it was concludedthat the JPEC was unlawfully seated

and violated the State constitution. When presented with this finding, theJPEC declined to take action torectify the circumstance, and inviolation of the law, recommended all22 appellate judges who were seeking



21/31

to run in a Retention Election withoutany candidate opposition.

This was a compelling and convincingcase, and was very well prepared and

presented.

However, due to time constraints bythis jury, we were not able to takeaction. We recommend that subsequent

grand juries allow Hooker, Gottlieband Bruit to again present their caseand allow time for steps to be takenthat will bring about change in the

process of electing appellate judgesin Tennessee.

We are requesting a hearing as soon as possible because the election on August 7 th will violate The Peoples rights to a legitimate election.

We subsequently have filed with the Board of Judicial Conduct the attached document and we are likewise attaching to this letter a document we filed with the previous Grand Jury. [Information for the Grand Jury]

We believe as the aforesaid documents reflect that all the 22 appellate Judges have violated the Official Misconduct Statute TCA 39 16 402, because they sought and received an unlawful



22/31

recommendation from the Judicial Performance Evaluation Commission [JPEC], well knowing that they we violating TCA 17 4101, TCA 17 4201 and Supreme Court Rule 27 for their own economic benefit, and

consequently, as aforesaid, violated the criminal law.

They accepted said recommendations notwithstanding the fact that the Supreme Court, under its supervisory powers, Supreme Court Rule 11, had the duty to require the JPEC to operate according to the aforesaid laws.

The fact

is

in

an

effort

to

be

fair

to

the

judges

when

we

went

before the Grand Jury we did not seek an indictment, despite the fact we do believe that becau se of their criminal conduct the people of Tennessee are going to be confronted with an unlawful election on August 7 th 2014, due to the fact that the 22 Judges were unlawfully recommended when the JPEC had no power to do so because the Commission was mal apportioned and the Commission therefore had

no power to make any recommendation under Supreme Court Rule 27 Section 2.01, 2.03 which provides:

Section 2. Judicial Performance Evaluation Program.

.

2.02. The Judicial Performance Evaluation Program shall be administered by the Judicial Performance Evaluation Commission established by Tenn. Code Ann. 17 4201(b) [(6) race and gender].



23/31

2.03. The Judicial Performance Evaluation Commission shall have the responsibility for the design, the implementation, and the day to day operation of the

Judicial Performance Evaluation Program. The Commission's decisions shall be consistent with this rule, and the Commission has no power to waive or to modify any provision of this rule.

We feel as private citizens, under Article I Section 1, 23 and Article XI Section 16 of the Tennessee Constitution, we have a right to protect

our voting right and the voting rights of all other citizens from the conduct of those judges who apparently determined to seek re election notwithstanding, the fact, that they well know that their names are unlawfully on the ballot in violation of TCA 17 4101, 201 and Supreme Court 27.

We come to the Grand Jury because the appellate Judges of the

Courts of this State have been unable to deal with the problem in view of the fact that under the Constitution they have been disqualified because they have an interest in the subject matter of the case under Article VI Section 11.

As aforesaid we did not seek an indictment before the previous Grand Jury in the hopes that the Judges would announce to the public,

and to the election officials, that are no longer candidates due to the fact that they know they have no right to file a declaration of candidacy based upon an unlawful recommendation and that to do so for their own benefit made them subject to an indictment for a Class E felo ny under the Official Misconduct Statute.



24/31



25/31

For the Information of the Grand Jury June 23, 2014

We promise you that if you will listen to us and read the documents we are going to give you that you can understand what we are saying as well as anybody, lawyer / non lawyer or whomever, this is a matter where the choice is between right and wrong.

We have come here this morning having brought a lawsuit to challenge the recommendation of the appellate Court judges to have their name on a ballot without opposition in August 7th 2014 the purpose of that lawsuit was to protect the people from an unlawful election. We have likewise attempted to get the Legislature to be involved in this matter for the same purpose. This is not a partisan or political conflict this is a moral issue. There is a conflict between those who ignore the law and the Rule of Law.

We have come here on a citizen to citizen basis because in the final analysis the

members of the Grand Jury picked at random from the citizenry are the peoples best defense against criminal conduct. It is the Grand Jury that has the power to indict misbehaving public officials or in the alternative to write reports that expose to the public their misconduct for the benefit of the public.

We do not come here for the purpose of seeking an indictment but rather for the purpose of explaining the judicial crisis that confronts us in the hopes that the members of this Grand Jury, who are the Peoples ultimate protector more than any other public officials, will consider the facts in this situation and protect the Peoples right to a lawful election, so there will be no need to indict the Judges for Official Misconduct or otherwise, TCA 39 16 402.

However, if the Grand Jury were to subpoena them, they would soon ascertain that all the appellate Judges who have accepted the unlawful recommendations hereinafter described, violated the law for their own economic benefit.

Unfortunately in the election of August 7 th 2014 22 Judges will be unlawfully on the ballot, because in order to run in an election without any opposition, the Judges must be recommended by a Commission popularly known as JPEC which stands for Judicial Performance Evaluation Commission. That Commission is the creature of the law, passed by the Legislature and it must be conducted under the rules set out by the Legislature and by Rule 11 and Rule 27 of the Tennessee Supreme Court.

In fact JPEC is part of the Judicial Branch of Government and subject to the supervisory power of the Supreme Court itself. Under the aforesaid provisions and supervisory powers of the Supreme Court, some of which are inherent powers and others that are statutorily granted, the Supreme Court had a duty to see that the JPEC was properly seated, because under the Rules of the Supreme Court, the Commission has no power to waive or modify any provision



26/31

For the Information of the Grand Jury June 23, 2014 2

2

of the rule, including the requirements for race and gender approximation. The rule is set out in TCA 17 4201, which statute is attached hereto, as is Supreme Court Rule 27 which created the JPEC, and Supreme Court Rule 11 which gives the Supreme Court the power and the responsibility to oversee any judicial circumstance that needs attention and gives the Court the power under Rule 11 (5), to take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within this State.

Unfortunately, the Speakers of both Houses of the Legislature failed in their responsibilities under TCA 17 4201(b)(6) and the Rule 27 Sections 2.01, 2.02, 2.03 and Sections 4.02, 5.01, 5.02, 5.03 and 5.04, which requires the Commission be balanced as to race and gender, so that all the people are equally represented. Instead, the Speakers appointed 7 men and 2 women when in fact there are more women who live in Tennessee than men, and consequently the Speakers obviously violated the law and discriminated against women when they appointed the Commission. Therefore more than half the voters of the State are not

properly represented by the Commission.

That circumstance occasioned by the lawsuit of Hooker, Brumit, Gottlieb and Spann vs. Lt. Gov. Ron Ramsey et al that challenged the legality of that situation.

That case went to court and the Court concluded that the JPEC was indeed unlawfully seated in violation of the aforesaid statutes and Supreme Court Rules and likewise violated the Due Process Clause and Equal Protection Clause of both the Federal and State Constitutions. That case was decided by Judge Hamilton Gayden of the First Circuit Court of Davidson County on January 15 th 2014. Thereafter on January 17 th armed with his opinion, which is attached hereto for your reading, the four Plaintiffs in that case appeared before the JPEC and requested the JPEC to acknowledge that the Commission was unlawfully seated, an accordingly take action to rectify that circumstance before the Commission recommended any Judges for retention election.

The Commission astonishingly declined, and in violation of the law recommended all 22 Appellate Judges who were seeking to run in a Retention Election, without any candidate opposition on August 7 th 2014, notwithstanding, the fact that the Commission was obviously unlawfully composed.

However, despite the unlawful conduct of the Speakers in making the unlawful appointments, and despite the unlawful conduct of the JPEC in making the unlawful recommendations, the ultimate judicial crisis was created by the fact that all the members of the appellate Courts, in reliance upon the unlawful recommendations of JPEC, filed a Declaration of Candidacy to put their names on the ballot, in direct violation of Supreme Court Rule 11, 27, and TCA 17 4201. In other words, it is the Supreme Court itself in accepting



27/31


3

unlawful recommendations to be on the ballot when the Court had the supervisory powers to require that the Commission to act in a lawful manner that is the culprit that has caused the judicial crisis in this State. That circumstance is ultimately responsible for the fact that the election on August 7th 2014 will be in direct violation of the law. A Judge cannot run in a Retention Election unless the Judge meets the Constitutional requirements regarding age and residency. In addition a Judge to run in a retention election must be lawfully recommended under the aforesaid rules as otherwise the Commission has no power to waive or modify any provision of the Rules, [Supreme Court Rule 27, 2.03].

We have come here this morning to answer any question that you may have in the firm belief that each of you have the facility to understand this circumstance and the sense of responsibility to do something about it.

For all practical purposes in this instance your authority to address this matter and

report upon it, is the Peoples best hope to have the matter fairly addressed so as to prevent a corrupt election, depriving the people of their basic constitutional rights, particularly the women of this State who in many instances have different issues than men, and who under the law are entitled to equal representation. The women of this State are entitled to their full representation. There are many examples where womens rights are violated but none more obvious than this situation that obviously discriminates against women.

We are here because we believe in the integrity and intelligence and the love of justice which has made each of you willing to serve on this Grand Jury. We are therefore hopeful that you will take the appropriate action regarding the conduct of the aforesaid law violators, because we believe that you believe that the Judges of this State cannot themselves be above the law, and must be accountable under the Rule of Law if we are to restore justice in this State.

///



28/31


4

________________________ John Jay Hooker 115 Woodmont Blvd. Nashville TN 37205 615 269 6558 [email protected]

________________________

Tony Gottlieb 4108 Brush Hill Road Nashville, TN 37216 615 405 8083 [email protected]

_____________________ Holly Spann 21 Vaughns Gap Nashville, TN 37205 615 812 2551 [email protected]

_____________________

Walter Brumit 30 East Dale Court Greeneville TN 37745 423 23 0157 [email protected]



29/31

Frank Daniels III, [email protected] 7:08 a.m. CDT July 18, 2014

Board of Judicial Conduct complaint accuses judges of violating rules and oaths

Complaint against Judici al Performance Evaluation Commissio n and all judges running for retention election on Aug. 7 (Photo: file)

Tennessee's judicial election season just keeps getting more interesting, and complicated.

We are so worried about the "politics" and whether we will "keep Tennessee courts fair," that we ignore serious questions about whether the August 7

elections are legal.

I do not think they are.

Judicial conduct

Thursday, John Jay Hooker, Anthony Gottlieb, Walter Brumit and Holly Spann filed a complaint with the Board of Judicial Conduct against three judges

(http://s3.documentcloud.org/documents/1223132/complaint-to-bjc.pdf) who were appointed to the Judicial Performance Evaluation Commission (JPEC)

accusing them of violating a valid court order by deciding to proceed with evaluations and recommendations for retention elections for 22 appellate

judges.

The judges accused of misconduct are JPEC chairman Robert L. Jones, Robert Montgomery Jr. and J. Michael Sharp.

Hooker et al were the plaintiffs in a suit against Lt. Gov. Ron Ramsey, Speaker Beth Harwell and the members of the JPEC accusing the commission of

being seated in violation of the statutory requirement that it represent the state's population in proportion to "race and gender" (TCA 17-4-201 (b)(6)). The

state is 52 percent women, but Ramsey and Harwell agreed to seat just two women and seven white men.

Ramsey and Harwell did, of course, abide by the statutory requirement appointing 3, 3, 3 judges, lawyers and lay people; so we know they can count.

JPEC is mal-apportioned

On January 15, Judge Hamilton Gayden ruled: "This Court concludes that the composition of the current Judicial Performance Evaluation Commission is

invalid ab initio under Tenn. Code Ann 17-4-201(b)(6) and is discriminatory against the female and black population of the State ofTennessee.in violation

of the Equal Protection and Due Process Clauses of both the United States and Tennessee Constitutions."

On January 17, the JPEC met to hear appeals from two judges who received preliminary do not retain recommendations from the commission. Though

the commission was comprised of six lawyers, three of whom are judges, they asked Deputy Attorney General Janet Kleinfelter to tell them whether they

could continue with their business in the face of Judge Gayden's order. I guess that since she had lost the case to Hooker et al she was an impartial

(Photo: The Tennessean)

Buy Photo

ugust 7 judicial elections legal? http://www.tennessean.com/story/opinion/columnists/frank-daniels/2014...

7/18/2014 8



30/31

advisor.

Gayden refused to enjoin the JPEC, saying in open court that "his friend" Judge Jones is a responsible fellow member of the bench and would know what

to do.

Judges have rules

Gayden also knows that the Rules of Judicial Conduct forbid judges from acting in ways that undermine the "independence, integrity, and impartiality of

the judiciary, and shall avoid impropriety and the appearance of impropriety." Quoting from Supreme Court Rule 10 Canon 1.

Jones, Montgomery and Sharp have a sworn duty to uphold the rules of conduct, and the constitutions of Tennessee and the USA.

This is the oath they each took:

"I, [Insert Name], do solemnly swear that I will support the Constitution of the United States of America and the Constitution of the State of Tennessee,

that I will administer justice without respect of persons, and that I will faithfully and impartially discharge all the duties incumbent upon me as Judge of the

[Insert Court & District], of the State of Tennessee, to the best of my skill and ability, so help me God."

They did not abide by their oath. Did they?

So help me

They did not follow their oath or the rules they swore to uphold. They allowed the JPEC to continue meeting and issue determinations that all 22 appellate

judges could place their names on the August 7 ballot unopposed.

The JPECs actions are not valid. The ballot is not valid. And we have to question whether the 22 judges who filed for retention in this environment are

themselves in violation of the Rules of Conduct.

Hooker et al make that claim in their filing too.

We should quit worrying about Democrats versus Republicans, and start worrying about a system that flouts the very foundations of its legitimacy.

Frank Daniels is the community conversations editor of The Tennessean, 615-881-7039, or @fdanielsiii

7/18/2014 8



31/31

John Jay Hooker 11:02 p.m. CDT July 28, 2014

In this retention election, the real culprit is the Supreme Court whose members' have "dishonored" their oaths of office.

Frank Daniels III has made a great contribution by ably explaining the fact that all three branches of our state

government have been involved in the corrupt practice of having our Supreme Court "appointed" instead of "elected."

Respectfully, however, the illegitimate election now in process must be laid at the feet of the five members of

the Supreme Court who had a responsibility to require that the Judicial Performance Evaluation Commission be

properly organized under TCA 17-4-201(b)(6) and under Supreme Court Rule 27.

That provision provides the commission shall have "no power to waive or modify any provision of the rule."

Notwithstanding, JPEC disregarded the requirement that it be seated in accordance with "race and gender"

population. Instead, the commission with seven men and two women unlawfully recommended all appellate

judges for retention election, well knowing that their recommendations were in violation of Judge Hamilton

Gayden's order, in the case of Hooker, Brumit, Gottlieb and Spann vs. Lt. Gov. Ron Ramsey et al. That order

held:

"This Court concludes that the composition of the current Judicial Performance Evaluation Commission is invalid ab initio under Tenn. Code Ann

17-4-201(b)(6) and is discriminatory against the female and black population of the State of Tennessee, in violation of the Equal Protection and Due

Process Clauses of both the United States and Tennessee Constitutions."

In addition to Judge Gayden's order, Supreme Court Rule 11 provides for the "inherent power of the Court":

"To take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the

state."

When the Supreme Court failed to act, it violated the Official Misconduct statute, TCA 39-16-402, for the economic "benefit" of the judges seeking

retention election, which is a Class-E felony, well knowing that the voters were being "harmed" and deprived of their legal rights.

In 1962, I became the general counsel for The Tennessean, shortly before John Seigenthaler became its editor. The newspaper under his leadership was

highly aggressive in the public interest. I represented The Tennessean in the famous case of McNabb vs. The Tennessean, where the newspaper was

sued for alleged libel in conjunction with an "unlawful election," and we won. We won because we were right, and because we knew the law. We were

right then, and I am right now, and I am writing this article in memory of my great friend and great editor.

Consequently, I want to challenge any of these judges to debate the matter, or, in the alternative, I would like to challenge Gov. Bill Haslam, Speaker Beth

Harwell or Lt. Gov. Ron Ramsey, all of whom have violated their oaths of office in conjunction with this election. It is particularly noteworthy that I have

challenged Gov. Haslam as an independent candidate this election year for the sole purpose of pointing out to the people of Tennessee that Haslam has

violated his oath of office under Article X, Section 3, to "see that the laws be faithfully executed."

But make no mistake: The real culprit is the state Supreme Court, whose members have dishonored their oaths of office and misled the people of

Tennessee for their political benefit.

I have said what I have said out of a sense of duty in the hope that you will vote against all these appellate judges and for the rule of law.

John Jay Hooker is a "retired" lawyer who has opposed the Tennessee Plan for judicial selection and retention for over 40 years.

Read or Share this story: http://www.tennessean.com/story/opinion/2014/07/29/justices-responsible-bad-election/13256267/

(Photo: handout)

es are responsible for bad election http://www.tennessean.c

Presentation of Info to the DCGJ Sept 16 2014

Documents