MAR 11 1973; Gov. Winfield C. Dunn; Cites Statistics.; (Photo By Bill Johnson/The Denver Post via Getty Images)
By Bobby Allyn / The Tennessean
Former Tennessee Gov. Winfield Dunn, who in 1971 signed a bill into law that changed the way the state selects appeals judges, said on Friday that enacting the bill was a mistake.
"At the time I signed it I felt constrained by many other issues," Dunn said. "I regret signing the retention election bill."
Those comments followed a hearing at the Tennessee Supreme Court in which attorney John Jay Hooker, merciless critic of judicial appointments, presented his argument that state law says appeals judges ought to be elected by voters, not appointed. It's a position Hooker has championed in court, but lost so many times that, some joke, everyone has lost count - even Hooker himself.
"If you want to wear those black robes, not just for this afternoon, you have to run for it, and run the risk of losing," said Hooker in a theatrical performance punctuated by finger wags and podium pounds. "It's not fun to lose. I've become a professional at it."
The judges were not the typical members of the state's high court. Instead, they were appointed by Gov. Bill Haslam after Hooker complained that the usual justices shouldn't hear the case since they were all chosen through the current system.
Hooker, a former Democratic candidate for governor who lost to Dunn, has sued the state and asked the special court to reverse a 1973 decision, Higgins v. Dunn, which supported the current system.
"Fifty-six years ago I took an oath of office right here in this very spot," Hooker, 83, said in a jam-packed courtroom. "And it is my duty to defend the state's constitution because nobody else will do it."
Attorney Janet Kleinfelter, representing the state, said it was not the first time but should be the last time the state defends the way appeals judges are elected, known formally as the Tennessee Plan.
Kleinfelter pointed out that the system has twice held up on appeal, and that other state supreme courts, like in Georgia, have concluded that appointing appeals judges is constitutional.
"This judicial system is entitled to finality," Kleinfelter said.
Voters next year will be asked by referendum about a constitutional amendment allowing the governor and lawmakers to choose appeals court judges, rather than having the governor choose from nominees. Nonetheless, the current system and direct appointments by the governor subject to legislative approval do not meet the constitutional requirement that judges be elected by voters, Hooker argues.
Skeptics point out that if Hooker were to get his way, the state's highest judgeships would basically be up for sale, as special interests could mobilize to push through partisan judges.
Yet Hooker, who views the whole issue almost entirely through the prism of the law, says letting voters decide is the most sound way to elect judges.
The 1971 case that upheld the existing system "thumbs its nose at the rule of law," Hooker said.
A decision by the special court is expected sometime in the fall.
Former Gov. Dunn, once Hooker's political adversary, said he is rooting for him.
"He is exactly right in what he presents to the court, and I hope they see fit to rule in his favor."