IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
February 16, 1999
FOR PUBLICATION Crowson
Cecil W.
JOHN JAY HOOKER, ) Appellate Court Clerk
Petitioner, )
) Filed: February 16, 1999
vs. )
)
DON SUNDQUIST, et al., ) Davidson Chancery
Respondents, )
)
and )
)
JOHN JAY HOOKER, )
Petitioner, ) No. 01A01-9709-CH-00533
)
vs. )
)
FRED D. THOMPSON, )
Respondent. )
OPINION ON PETITION FOR REHEARING
In this case, we consider whether Tennessee law affords a basis for the
Chief Justice of the Supreme Court of Tennessee to appoint Special Supreme
Court Justices. The petitioner, John Jay Hooker, has filed a petition to rehear in
this cause pursuant to T.R.A.P. 39(a)(2). This cause was originally filed before
this Court by the petitioner on May 19, 1998 pursuant to T.R.A.P. 11. The
petitioner proceeded to file a motion on June 12, 1998 requesting that all
members of this Court recuse themselves due to conflict of interest. Such motion
was denied on July 7, 1998.
On August 27, 1998, the petitioner filed a renewed motion to recuse,
specifically requesting that Chief Justice Anderson, and Justices Birch and Holder
recuse themselves due to alleged conflicts of interest. In response, on September
16, 1998, the Chief Justice filed an order designating and assigning Judge Gary
R. Wade of the Court of Criminal Appeals and Judge Charles D. Susano, Jr., of
the Court of Appeals to act as Special Justices of the Supreme Court for the
purpose of participating in the review of the petitioner’s Rule 11 application. On
October 5, 1998, an Order was filed denying the petitioner’s application for
permission to appeal. Chief Justice Anderson and Justice Birch did not participate
in said order, having been replaced by Special Justices Wade and Susano. The
petitioner has proceeded to file this petition to rehear, contending that there is no
basis in Tennessee law for Special Justices of the Supreme Court to be appointed
by the Chief Justice.
The recusal of judges in this State is addressed by Article VI, § 11 of the
Tennessee Constitution, which provides as follows:
No Judge of the Supreme or Inferior Courts shall preside on the trial
of any cause in the event of which he may be interested, or where
either of the parties shall be connected with him by affinity of
consanguinity, within such degrees as may be prescribed by law, or
in which he may have been of counsel, or in which he may have
presided in any inferior Court, except by consent of all the parties. In
case all or any of the Judges of the Supreme Court shall thus be
disqualified from presiding on the trial of any cause or causes, the
Court, or the Judges thereof, shall certify the same to the Governor
of the State, and he shall forthwith specially commission the
requisite number of men, of law knowledge, for the trial and
determination thereof. The Legislature may by general laws make
provision that special Judges may be appointed, to hold any Courts
the Judge of which shall be unable or fail to attend or sit; or to hear
any cause in which the Judge may be incompetent.
Id. (emphasis added). We interpret this last sentence to authorize the General
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Assembly to empower the appointment of substitute judges in the event that an
elected judge is “unable . . . to attend or sit” or is “incompetent.” Id.
The General Assembly has, in turn, enacted statutes conferring power to
the Chief Justice of the Supreme Court to appoint replacement judges.
Tennessee Code Annotated § 17-2-110(a) (1994) provides as follows:
When any chancellor or circuit, criminal or appellate judge shall, for
any reason, be unable to try the docket in any court of such
chancellor's or judge's division or circuit, the chancellor or judge shall
certify to the chief justice of the supreme court the fact of such
inability, with a request that the chief justice shall assign some other
chancellor, circuit, criminal or appellate judge to hear the case or
cases which the chancellor or judge is unable to hear and decide.
(emphasis added). See also Tenn. Code Ann. §§ 16-3-201(d)(4); 16-3-401; 16-3-
402 (1994) (conferring general powers to the Supreme Court to promulgate
internal operating procedures); Tenn. Code Ann. § 16-3-502(3) (1994) (authorizing
the Supreme Court to designate an administrative office of the courts to support
the appointment of inferior court judges). We interpret the reference to “appellate
judge[s]” in Tenn. Code Ann. § 17-2-110(a) to include judges of the Supreme
Court. Tennessee Code Annotated § 16-3-201(a) states that the jurisdiction of the
Supreme Court is “appellate only.” Because the language of Tenn. Code Ann. §
17-2-110 does not limit the term “appellate” to intermediate appellate judges, it is
logical to construe the provision to apply to all appellate judges, including judges
of the Supreme Court.
This construction of Tenn. Code Ann. § 17-2-110 is also consistent with the
legislative history of the provision. Originally enacted in 1919, the statute did not
apply to appellate judges. See 1919 Tenn. Pub. Acts ch. 166, § 1. The statute
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was amended in 1987 to include appellate judges. See 1987 Tenn. Pub. Acts ch.
65, § 2. The bill summary, which was provided to all legislators, states:
This bill would authorize the chief justice of the Supreme Court to
assign a retired or regular judge to the appellate court if the litigation
becomes too congested or when an appellate judge is unable to try
the docket in his division or court. Appellate judges assigned by the
chief justice would be authorized under this bill to claim expenses in
addition to salary.
95th General Assembly, Legislative Summary of Senate Bill 643 and House Bill
456. There is no mention anywhere in the legislative history suggesting that the
amended statute should not apply to Supreme Court Justices.
The petitioner cites Tenn. Code Ann. § 17-2-102 (1994) for the proposition
that only the Governor has the power to appoint substitute Supreme Court
Justices. This statute provides that:
The judges of the supreme court, within the first week of each term,
or as soon thereafter as the fact shall come to their knowledge, shall
certify to the governor all cases upon the docket in which either of
them is incompetent to sit, upon the receipt of which certificate, the
governor shall appoint and commission the requisite number of
competent lawyers to dispose of the causes.
Id.; see also Tenn. Code Ann. § 17-2-104 (1994) (enabling the Governor to
appoint a replacement Justice in the event that a sitting Justice is ill). The
definition of incompetence is set forth in Tenn. Code Ann. § 17-2-101 (1994).
Notwithstanding the statutory language supporting the petitioner’s
proposition, we find it difficult to reconcile Tenn. Code Ann. § 17-2-102 with the
clear language set forth in Tenn. Code Ann. § 17-2-110(a), which enables the
Chief Justice to appoint a replacement judge in the event that a judge is unable to
sit for “any reason.” (emphasis added). Because this language is not qualified,
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we construe “any reason” to include incompetence. Id. The bill summary of Tenn.
Code Ann. § 17-2-110 refers to a broad inability of an appellate judge “to try the
docket.” Legislative Summary, supra. Certainly, incompetence would be included
as a ground for an appellate judge’s inability “to try [his or her] docket.” Id.
Moreover, our ruling is consistent with the traditional practice of this Court.
We believe that Tenn. Code Ann. §§ 17-2-102, 17-2-104, and 17-2-110(a) were
promulgated with the intent to empower both the Governor and the Chief Justice
to designate temporary judges.
The petitioner’s motion is denied. It is so ORDERED
_____________________________________
William M. Barker,
Justice
CONCUR:
Drowota, Holder, J.J.
Wade, Susano, S.J.
Anderson, C. J. - Not participating
Birch, J. - Not participating
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