Tuesday, March 1, 2011

Nothing Personal

The Tennessee Supreme Court has this summary of a recent decision:

John Jay Hooker has filed a motion requesting this Court (1) to set aside its June 21, 2010 order directing the Clerk of the Appellate Courts to decline to accept any of his further filings in this case and (2) to rescind its January 7, 2010 order enforcing the October 20, 2008 order of the Chancery Court for Davidson County suspending his license to practice law for thirty days. Mr. Hooker has also requested that all the members of the Court recuse themselves from this proceeding because they “are prejudiced against him as a consequence of a contentious political dispute before the legislature . . . regarding the [c]onstitutionality of the [r]etention [e]lection [s]tatute.” In order to address Mr. Hooker’s first two requests, the Court must first address his renewed insistence that all the members of this Court are disqualified from any proceedings involving his law license. It is, therefore, ordered that the Clerk of the Appellate Courts is directed to accept and file the motion lodged by Mr. Hooker on January 14, 2011. It is further ordered that Mr. Hooker’s motion requesting all the members of this Court to recuse themselves from this proceeding is denied.

The attorney has filed lawsuits over nearly two decades "challenging the financing of elections by officials running for local, state, and federal office."

The court here denied the attorney's motion to recuse the entire court as

[n]o reasonable person familiar with the practice of law could conclude that the members of this Court have any personal interest in [the attorney's] law license. None of the members of this Court have personal knowledge of the facts of this case other than the facts appearing in the public record. Finally, no member of this Court has in the past exhibited or entertained personal bias or prejuduce against [him] in any personal or professional dealings with him.

The attorney is the subject of this Wikipedia entry. (Mike Frisch)


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Who are these judges think they are fooling? They all know of John Jay Hooker's testimony before the TN Senate Judicary Committee. Also, he was twice the Democratic Party nominee for Governor of Tennessee.
These judges are living a lie. They know the retention election statute is blatantly unconstitutional. They are hiding behind the notion that their seating on the appellate bench is somehow less political because they were merit selected. A cheap easy way for them to remain in office. There is no constitutional basis for their appointment as incumbents, who then appear in a YES /NO election.
Any reasonable person would conclude that their self interest in maintaining their $160K+/year joba plus benefits, is enough to disqualify their seating on this case.
Pretending that their actions are anything other than a vendetta against John Jay Hooker for challenging the retention election statute is simply a denial of thier vilation of the official oppression statutes. He has every right to challenge this statute.

Posted by: Tony Gottlieb | Mar 2, 2011 9:16:34 AM

In considering the recusal issue, the court makes some serious and fundamental mistakes and I really don’t think it is simply a matter of misunderstanding the law either.

The court claims to be applying an objective standard but the question the court asks itself is whether “a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.” By placing that person in the judges position with the knowledge of the judge, the court is in fact converting the standard to a non-objective reasonableness standard. In fact, Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252 (2009), is clear that the objective standard is viewed from that of an observer of the court. A reasonableness standard is not appropriate. This is the core holding of Caperton.

Must of the rest of the discussion relies upon the classic definition of conflict of interest (“interest in the outcome of [the] particular case”). Bracy v. Gramley, 520 U.S. 899, 904-5 (1997) (internal citations and quotation marks omitted). And even then, some of the arguments are just silly. Of course the justices have an interest in the disciplinary controversy where the lawyer has been disciplined for repeatedly claiming that those judges were not properly elected. Overturn the discipline and the lawyer is going to go right back to making the same legal claims. Discipline is intended to be coercive.

They also seem to be arguing that because the legal controversy is crystal clear and because their authority is also, they claim, clear, there can be no conflict. But the nature of the proceeding is only relevant to whether the judge has an interest in the controversy. The nature of the proceeding is irrelevant to the question of whether a reasonable observer might believe that there was a personal conflict of interest between the justice and the litigant based upon prior events. This is a question which the court very carefully avoids asking. It simply is not enough to argue that any judge would have come to the same conclusion so therefore they could not have been biased.

Interesting case addressing an interesting topic.


Posted by: FixedWing | Mar 3, 2011 2:43:32 PM

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