John Jay Hooker is getting the lion’s share of the attention in the current controversy over Tennessee’s judicial election laws. But the braver figure in the battle may well be Bob DeLaney, the attorney who has helped Hooker bring his case to the state Supreme Court.
For months, Hooker and DeLaney have been arguing that Tennessee’s current system of “retention” elections for the state’s five Supreme Court justices and 24 other appellate judges is unconstitutional. The process lets them retain their jobs on the basis of uncontested “yes” or “no” elections, which means that voters don’t have a real choice on the ballot.
Just this Tuesday, the two lawyers filed two separate complaints in U.S. District Court, charging that Gov. Don Sundquist is dragging his feet by not naming a special Supreme Court to hear the case.
This year’s retention elections are scheduled for Aug. 6, but Hooker and DeLaney are frantically trying to get the constitutional matter resolved so that qualified attorneys can run for the appellate judgeships that, they say, should be up for grabs.
Both attorneys are asking the federal court to intervene and accept jurisdiction in the case because, their complaints say, it has been 13 days since the state Supreme Court recused itself from considering the matter, and “the governor still has not appointed a special court.”
Sundquist spokeswoman Beth Fortune says the Republican governor hasn’t made a final determination about his appointments to the special Supreme Court. Sundquist is scheduled to be traveling across the state this week, beginning his campaign for reelection. Meanwhile, Hooker is gearing up to run for the Democratic nomination for governor.
“The governor has been, and is, working on appointing a special Supreme Court,” Fortune says. “He, however, is not going to do it on an accelerated timetable.” Fortune says the governor plans “to take his time and make sure he picks the right people.” It’s possible, she says, that Sundquist will complete his appointments by early next week.
The crux of the Hooker/DeLaney argument is that the so-called “Tennessee Plan” of retention elections is unconstitutional. On June 10, Davidson County Chancellor Ellen Hobbs Lyle issued a courageous opinion, writing that the current system of evaluating and electing state appellate court judges is “inharmonious” with the Tennessee Constitution. Because the current members of the state Supreme Court would be affected by the ultimate decision in the matter, they have recused themselves from considering the case. Once the special Supreme Court is appointed, it will probably take up the matter and decide whether Lyle’s ruling will stand.
State Attorney General Knox Walkup is strongly defending the constitutionality of the Tennessee Plan. But local attorneys note that the attorney general is appointed by the Supreme Court, a fact that may prevent his making a truly impartial judgment. They say it would be difficult for Walkup not to feel beholden to the Supreme Court.
The partnership of Hooker and DeLaney, both Vanderbilt Law School graduates, is a curious one.
Once the golden boy of Tennessee Democratic politics, Hooker is now 67, and it has been a long time since he has actually made a living practicing law. He has a charismatic, even intoxicating, personality, and, given enough time, he can win over even his most fervent critic. Nevertheless, he has a notoriously mixed reputation. As much as anything now, he is known as a political revolutionary with an idiosyncratic lifestyle.
On the other hand, DeLaney, 48, is an East Tennessee native and the son of a former state legislator. A full-time lawyer, he does both civil and criminal work, frequently practicing in the state’s appellate courtsbefore the very judges he wants to see challenged on the ballot. He has a solid legal reputation in Nashville, but he has chosen to ally himself with one of Nashville’s most controversial characters.
“Bob is the kind of guy you might expect to do something like this,” says Al Knight, a well-known local attorney and a partner in the Willis & Knight law firm, where DeLaney formerly practiced. Knight characterizes DeLaney as “fearless, with an honest kind of intellect,” hardly the type to be swayed by popular opinion or afraid of challenging the status quo.
Like many other local attorneys, Knight is also convinced that DeLaney and Hooker are right on the mark in their challenge to the Tennessee Plan. “You just read the constitution, and there it is,” Knight says.
Although local lawyers may agree with Hooker and DeLaney’s interpretation of the constitution, Knight says, they still may not favor a system that would force appellate judges to stand for contested election.
“A lot of lawyers think that electing appellate judges may not be the greatest idea in the world because [the voters] don’t know about the candidates very much,” Knight says. What’s more, as Knight points out, judicial candidates are restricted from discussing virtually any campaign issues, and that makes it hard for voters to get to know them. “As a matter of policy, I think a lot of lawyers don’t think it’s a good idea for appellate judges to be elected. But I think a lot of lawyers think the constitution is pretty clear,” Knight says.
Meanwhile, DeLaney credits Hooker for getting him interested in the legality of the Tennessee Plan. He recently told the Scene, “John Jay is the guy who found the ground and planted the vine and cultivated the vineyard. He convinced me that I should labor in the vineyard, and I think it’s a very worthwhile debate.”
DeLaney admits it wasn’t easy to commit to this particular fight. But he says, “There’s just no two ways about” the fact that retention elections narrow the field so drastically that they don’t qualify as elections under the state constitution.
If anyone has doubt about DeLaney’s courage in fighting the system, he should consider the reluctance with which most attorneys even comment on the issue. While Al Knight, DeLaney’s former colleague, speaks candidly about the election controversy, other well-known attorneys declined to talk with the Scene about the lawsuit, which is stirring up the legal waters across the state. Even Hooker acknowledges that DeLaney’s fight is an especially gallant one.
Hooker may be a lot of things, but he is not oblivious to the facts. The former Democratic gubernatorial nominee knows that, after the current battle is over, DeLaney will have to continue to practice within the state’s court system. “It takes a lot of chutzpah to do what he’s doingto take on the very court system before whom he makes his living,” Hooker says. “I can’t say enough good things about DeLaney and his love of justice and his determination.”
Hooker also knows his own reputation has plenty of scars, some of them old, some of them relatively fresh. He is deeply dedicated and loyal to his friends, but he has managed to make more than his fair share of enemies. Hooker can only profit from being in DeLaney’s good company. And he knows it. “I’ve been very fortunate to have him by my side every step of the way in this matter,” he says.
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