# FILED

February 16, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION JOHN JAY HOOKER, ) 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 consi der whether Tennessee law affords a basis for the Chief Justic

e of the Supreme

Court of Tennes

see to appoint Special Su preme Court Justices. The petitioner, John Jay Hooker, has filed a petition to rehe ar in this cause pursuant to T.R.A.P. 39(a)(2). This cause was originally filed before this Court by the petit ioner on May 19, 1998 pursu ant 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 thems elves due to conflict of inter est. Such motion was denied on July 7, 1998.-2- On August 27, 1998, the petitione r filed a renewed motion to r ecuse, specifically reques

ting that Chief Justice Ander son, and Justices Birch and Holder recuse themselves due to al leged conflicts of interest. In response, on September 16, 1998, the Chief Justice filed an order designating and a ssigning Judge Gary R. Wade of the Court of Criminal Appeals and Judg e Charles D. Susano, Jr.,of the Court of Appeals to act as Spec ial Justices of the Supreme Cour t for the purpose of participating i n the review of the petit ioner’s Rule 11 applicati on. On October 5, 1998, an Order w as filed denying the petit ioner’s application for permission to appeal. Chief Jus tice Anderson and Justice Bi rch 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been replaced by Special Justices Wade and Susano.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, c ontending that there is no basis in Tennessee law for Special Justices of the Supreme C ourt to be appointed by the Chief Justice.

The recusal of judges in this State is addressed by Ar ticle 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, wi

thin such degrees as may be prescribed by law , or in which he may have be en of cou nsel, or in which he ma y have presided in any inferior Court, except by con sent of all the parties. In case all or any of the Judg es of the Supreme Court shall thus be disqualified from presiding on the trial of any cause or causes, the Court, or the Judges ther eof, shall certify the same to the Governor of the State, and he shall forthwith specially commissi on the requisite number of men, of law knowledge, for the tri al and determination thereof. The Legislature may by general laws make provision that special

Judges may be appointed, to ho ld any Courts the Judge of which shall be unable or fail to attend or si t; or to hear any cause in which the Judge may be incompetent

. Id . (emphasis added). We interpret this la st sentence to authorize th e General-3-

Assembly to empower the ap pointment of substitute judges i n the event that an elected judge is “unable . . . to attend or sit” or is “incompetent.” Id

.

The General Assembly has, in turn, enacted statutes conferri ng power to the Chief Justice of the Supreme Cour t to appoint replacement judges

. Tennessee Code Annotated § 17-2-110(a) (1994) provides as foll ows: 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 f act of such inability, with a request that the chief justi ce shall assign some other chancellor, circuit, criminal or appellate jud ge to hear the case or cases which the chancell or 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 g eneral powers to the Supr eme Court to promulgate internal operating proc

edures); Tenn. Code Ann. § 16-3-50 2(3) (1994) (authoriz ing the Supreme Court to designate an administrative off ice of the courts to support the appointment of inferior court ju dges). We interpret the reference to “appel late judge[s]” in Tenn. Code

Ann. § 17-2- 110(a) to in clude judge s of the Suprem e Court. Tennessee Code Annotated § 16- 3-201(a) states that the jur isdiction of the Supreme Court is “appellate only.” Because the lang uage of Tenn. Code Ann. § 17-2-110 does not limit the term “appellate” to intermediat e appellate judges, it is logical to construe the provision to apply to all appellate judges, i ncluding judges of the Supreme Court.

This construction of Tenn. Code Ann. § 17-2-110 is also consist ent with the legislative hist

ory of the provision. Originally enact ed in 1919, the statute did not apply to appellate judges

. See 1919 Tenn. Pub. Acts ch. 166, § 1. The s tatute-4-

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 authori ze the chief justice of the Supr eme Court to assign a retired or r

egular judge to the appell ate court if the litigati on becomes too congested or when an appellate judge is unable to try the docket in his divi sion or court. Appellate j udges assigned by the chief justice would be authorized under this bill to claim expenses in additio n to salar y. 95th General Assembly, Legislative Summary of Senate Bill 643 and House Bill 456. There is no mention anyw here in the legislativ

e 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 propos ition that only the Governor has the power to appoint substitute Supreme Court Justices. This statute prov ides that: The judges of the supreme co urt, with in the first week of each

term, or as soon thereafter as the fact shall come to the ir knowledge, shall certify to the gover

nor all cases upon the docket in which either of them is incompetent to sit, upon the receipt of which certi ficate, the governor shall appoi nt and commission the requis ite 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 i n the event that a sitting Justice is ill). The definition of incompetence is set fo rth in Tenn. Code Ann. § 17-2-101 (1994).

Notwithstanding the statutory language supporting the petitioner’s proposition, we find it di fficult to reconcile Tenn. Code Ann. § 17-2-102 with the clear language set forth i n Tenn. Code Ann. § 17-2-110(a), w hich enables the Chief Justice to appoint a repl acement judge in the event th at a judge is unable to sit for “ any reason .” (emphasis added). Becaus e this language is not q ualified,-5-

we construe “any r

eason” to include incompetence. Id . The bill summary of Tenn. Code Ann. § 17-2-110 refers to a br oad inability of an appellate judge “to try the docket.” Legislativ

e Summary, supra . Certainly, incompeten ce would be included as a ground for an appellate judge’s inability “to try [his or her] docket.” Id

.

Moreover, our ruli ng is consistent wi th the traditional practic e 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 Ju stice to designate temporary judges.

The petitioner’s motion is deni ed. It is so ORDERED

_____________________________________ William M. Barker, Justice CONCUR: Drowota, Holder, J.J. Wade, Susano, S.J. Anderson, C. J. - Not par ticipating Birch, J. - Not parti cipating