                      IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                                           September 13, 2005 Session

                     JOHN JAY HOOKER v. PHIL BREDESEN, ET AL.

                         Appeal from the Chancery Court for Davidson County
                           No. 04-405-III   Ellen Hobbs Lyle, Chancellor



                        No. M2004-02185-COA-R3-CV - Filed October 25, 2005


Defendants appeal the refusal of the Chancellor to impose Tennessee Rule of Civil Procedure 11
sanctions against Plaintiff. We affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court. PATRICIA J. COTTRELL, J., filed an opinion
dissenting in part and concurring in part. FRANK G. CLEMENT , JR., J., filed a separate concurring
opinion.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Janet M.
Kleinfelter, Sr. Counsel, for the appellants, Phil Bredesen, Paul Summers Riley Darnell and Brook
Thompson.

John Jay Hooker, Nashville, Tennessee, pro se.

                                           MEMORANDUM OPINION1

        Plaintiff, in his long-standing crusade to cleanse the election process in Tennessee, brings yet
another complaint challenging the constitutionality of the Southern Regional Presidential Convention
Delegate Act of 1986 (Tenn.Code Ann. § 2-13-301 et seq.) on the grounds that it does not provide
for a prohibition against the use of out-of-state campaign contributions in the presidential preference
primary. He insists that such out-of-state contributions are unconstitutional under Article 1 section


        1
            Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
       the actions of the trial court by memorandum opinion when a formal opinion would have no
       precedential value. W hen a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
8 of the Tennessee Constitution and under the Fifth and Fourteenth Amendments to the Constitution
of the United States.

        The Chancery Court of Davidson County dismissed the action for lack of subject matter
jurisdiction on the basis that the issue of interstate campaign contributions in the residential
preference primary was preempted by the Federal Election Campaign Act, 2 U.S.C. § 453.
Defendants then filed a Motion for Sanctions under Tennessee Rule of Civil Procedure 11.03
asserting that Plaintiff’s Complaint was legally frivolous, which Motion was denied by the
Chancellor.

        Defendants appeal asserting that the refusal of the trial court to impose Tennessee Rule of
Civil Procedure 11 sanctions against Plaintiff was an abuse of discretion.

       Appellee asserts that the trial court erred in dismissing his Complaint.

        Because of the repeated number of lawsuits filed by appellee, Mr. Hooker, challenging
various facets of the campaign financing system in Tennessee (or lack of such system), the Davidson
County Circuit Court on June 27, 2003, in the case of Hooker v. Sundquist, No. 01C3804, (Davidson
Cty. Circuit Ct.) set up what might be called a “fail-safe” screening systems of lawsuits filed by Mr.
Hooker which system was to be followed prior to defendants being required to answer or further
plead to the complaint.

       The Complaint at bar was filed on February 6, 2004, and on February 10, 2004, the trial court
entered an order providing:

              The Tennessee Court of Appeals, Middle Section, ordered the courts of
       Davidson County to implement measures to address the Plaintiff’s repeated filing of
       lawsuits challenging clearly settled points of law.

               To maintain the Plaintiff’s meaningful access to the courts but to prevent
       frivolous litigation, the Presiding Judge of Davidson County, the Honorable Thomas
       W. Brothers, entered an order on June 27, 2003, establishing a preliminary review of
       any lawsuit filed by the Plaintiff. Before the parties sued are required to defend, the
       Plaintiff’s lawsuit is reviewed by the Special Master of the Circuit Court on two
       specific grounds set forth in Judge Brothers’ order. The Special Master is required
       to prepare a written report of findings. Also provided is a procedure for review of the
       findings by the Presiding Judge.

              It is therefore ORDERED, pursuant to the order of June 27, 2003, entered by
       Thomas W. Brothers, Presiding Judge of the Twentieth Judicial District, that the
       above-captioned matter is submitted to the Special Master of the Circuit Court to
       determine whether the complaint alleges violations of Article X, section 3 of the
       Tennessee Constitution and/or Section 2-19-126, Tennessee Code Annotated, and


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       whether such filings are legally frivolous and/or merely duplicative of matters already
       litigated.

       On February 18, 2004, Special Master Mary Ashley Nichols filed her report providing:

               This lawsuit was filed February 6, 2004 in the Chancery Court for Davidson
       County by John Jay Hooker, Esq. This matter comes before the Special Master for
       review upon a directive from the Sixth Circuit Court for Davidson County in an order
       arising out of Hooker v. Sundquist, Davidson County Circuit Court No: 01C3804
       entered June 27, 2003. The order instructed the Special Master to review any
       complaint filed by Mr. Hooker during a 24-month period to determine:

              1. Whether the complaint alleges violations of Article X Section 3 of the
       Tennessee Constitution and/or Tennessee Code Annotated Section 2-19-126 and
              2. Whether such filings are legally frivolous and/or merely duplicative of
       matters already litigated.

               The Special Master finds that the lawsuit filed by Mr. Hooker does not allege
       violations of Article X Section 3 of the Tennessee Constitution nor of Tennessee
       Code Annotated Section 2-19-126. Further review is not required due to the limited
       scope of the 2003 order.

               The Special Master recommends that the lawsuit at bar proceed.

       Plaintiff then filed his Amended Complaint on February 20, 2004, asserting that the
Presidential Preference Primary Law (Tenn.Code Ann. § 2-13-301 et seq.) was unconstitutional
because:

       The Tennessee legislature has no power to authorize out-of-state campaign
       contributions and must prohibit the use of said contributions in the election process
       under the mandates of Tennessee Constitution Article I, Sections 1, 4, 5 & 8, Article
       IV, Article XI, Section 16, and T.C.A. 2-2-102; consequently, the election should be
       held to be void.

      No appeal to the Chancellor was perfected from the report of the Special Master, but on
March 5, 2004, Defendants filed their Motion to Dismiss for lack of subject matter jurisdiction.

        On April 5, 2004, the trial court entered an Order Granting the Defendants’ Motion to
Dismiss the case for lack of subject matter jurisdiction and for failure to state a claim for upon which
relief could be granted.




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       Defendants’ filed a Motion for Rule 11 sanctions to be imposed against Plaintiff which
Motion was heard on April 30, 2004, resulting in a Memorandum and Order of the trial court
providing:

               Prior to the filing of this lawsuit, the Tennessee Court of Appeals, Middle
       Section, directed the Honorable Thomas W. Brothers to conduct a hearing to sanction
       the plaintiff, John Jay Hooker. The problem which the Court of Appeals sought for
       Judge Brothers to address was to prevent the plaintiff from filing frivolous litigation
       and claims duplicative of matters already litigated.
               On June 27, 2003, Judge Brothers entered an order establishing in the courts
       of Davidson County a preliminary review of any lawsuit filed by the plaintiff. Before
       parties sued by Mr. Hooker are required to defend, the plaintiff’s lawsuit is reviewed
       by the Special Master of the Circuit Court of Davidson County. The Special Master
       is required to prepare a written report of findings. Also provided is a procedure for
       review of the findings by the Presiding Judge. The Special Master is required to
       determine whether the complaint alleges violations of Article X, section 3 of the
       Tennessee Constitution and/or section 2-19-126, Tennessee Code Annotated, and
       whether such filings are legally frivolous and/or are merely duplicative of matters
       already litigated.

              After the entry of Judge Brothers’ June 27, 2003 order, this lawsuit was filed
       by Mr. Hooker. By order of April 5, 2004, the Court granted the defendants’ motion
       to dismiss this matter based on prior rulings of this and superior courts.

               This matter is presently before the Court on the motion of the Attorney
       General for the Court to impose sanctions on Mr. Hooker for filing the above-
       captioned matter. The Attorney General asserts that the filing of this case is
       duplicative of matters already litigated and is, therefore, frivolous. The Court agrees
       with the Attorney General that the filing of this case is duplicative of matters already
       settled and litigated by rulings of superior courts.

               The difficulty with the motion of the Attorney General is that this Court, prior
       to requiring a responsive pleading to be filed in the case, followed the order put in
       place by Judge Brothers and referred this case to the Special Master to determine
       whether the case should proceed. The Special Master allowed the case to proceed,
       stating, “The Special Master finds that the lawsuit filed by Mr. Hooker does not
       allege violations of Article X, Section 3 of the Tennessee Constitution nor of
       Tennessee Code Annotated section 2-19-126. Further review is not required due to
       the limited scope of the 2003 order. The Special Master recommends that the lawsuit
       at bar proceed.”

              The Attorney General argues that the Special Master only made a
       determination that the complaint in this matter did not allege a violation of Article


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X, section 3 or Tennessee Code Annotated section 2-19-126 and, for that reason, is
not indicative of whether the plaintiff has violated Rule 11 of the Tennessee Rules
of Civil Procedure by improperly filing a matter to harass, delay or that is not
warranted by existing law. Moreover, although it is not made clear in the motion or
papers filed by the Attorney General, the Court understands from the oral argument
that the sanction that the Attorney General seeks is for this Court to broaden the
inquiry the Special Master makes in determining whether to recommend that Hooker
lawsuits proceed. The Attorney General seeks for this Court to charge the Special
Master to determine from the outset of a Hooker filing whether the new lawsuit is
duplicative of matters already litigated even if the new lawsuit does not explicitly
invoke Article X, section 3 or Tennessee Code Annotated section 2-19-126.

        ...

        But, even putting aside whether this Court has the power and authority to
impose a sanction on the filing of lawsuits in other courts in Davidson County, this
Court must on other grounds deny the motion for sanctions. While it is true that the
report of the Special Master in this matter appears to have allowed this lawsuit to
proceed because it was not explicitly brought to address a violation of Article X,
section 3 or Tennessee Code Annotated section 2-19-126, nevertheless the fact is that
the Special Master recommended that the case proceed. Moreover, the Attorney
General did not petition the Presiding Judge to review that recommendation. Mr.
Hooker was given the “green light” by the Special Master to proceed and the
defendants did not take that determination before the presiding judge as is provided
for in Judge Brothers’ order.

         A sanction under Rule 11 is a penalty. This Court concludes that a penalty
is not appropriate in this case given the ambiguity created by the determination by the
Circuit Court Special Master that this case could proceed and the failure of the
Attorney General to petition the Presiding Judge to halt the proceedings at that time.
The motion for sanctions, therefore, is denied.

        Recognizing the need to deter the plaintiff from filing lawsuits not only under
Article X, section 3 or Tennessee Code Annotated section 2-19-126 but to also deter
the plaintiff from filing lawsuits that are duplicative of matters already litigated, the
Court has studied whether it has any legal authority to enter such an injunctive order.
The Court has concluded that its only authority to enter an order that would preclude
the plaintiff, prospectively, from filing such lawsuits is pursuant to Rule 11. Having
concluded above that Rule 11 sanctions are not appropriate in this case because of
the ambiguity created by the recommendation of the Special Master that the case
could proceed, this Court does not have the authority to enter an order prospectively
regulating Mr. Hooker’s filings in Davidson County. The Court concludes that the
remedy of the Attorney General in Davidson County for future filings by Mr. Hooker


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       in lawsuits which do not explicitly allege violations of Article X, section 3 of the
       Tennessee Constitution and/or section 2-19-126, is pursuant to the June 27, 2003
       order of Judge Brothers, to request the presiding judge, when the new lawsuit is filed,
       to review the report of the Special Master and dismiss the case because it is legally
       frivolous or merely duplicative of matters already litigated even though it is not an
       Article X, section 3 or section 2-19-126 case.

               It is therefore ORDERED that the motion for sanctions is denied.

         The difficulty facing the defendants and the Chancellor on this issue of sanctions has its
backdrop in Hooker v. Sundquist, 150 S.W.3d 406 (Tenn.Ct.App.2004). In the history of that case,
the trial court had denied imposition of sanctions which action had been reversed by the Court of
Appeals. Hooker v. Sundquist, 107 S.W.3d 532 (Tenn.Ct.App.2002). On remand of that case the
Circuit Court implemented the “fail-safe” procedure that is at issue in the case at bar. Mr. Hooker
then appealed, and this Court held in part:

       Thereafter, the defendants filed in the trial court the motion for sanctions that had
       been previously sent to Mr. Hooker. After a hearing, the trial court denied the
       defendants’ motion for sanctions, holding that “the chilling affect [sic] on the average
       citizens of this state so greatly outweighs the inconvenience that’s associated with
       this lawsuit that I cannot see that sanctions are appropriate.” On April 1, 2002, the
       trial court entered an order incorporating that ruling.

               The defendants appealed the denial of their motion for sanctions to this Court.
       On December 19, 2002, this Court issued a decision finding that Mr. Hooker’s
       “belief that his complaint was ‘well-grounded in both fact and law’ [was] an
       unreasonable one” and remanded the cause for the issuance of an appropriate
       sanction. Hooker v. Sundquist, 107 S.W.3d 532, 537 (Tenn.Ct.App.2002).

              On remand, the trial court held a hearing at which the parties were given an
       opportunity to argue the issue of sanctions. At the hearing, the defendants sought the
       imposition of nonmonetary sanctions that would curb the repetitive lawsuits filed by
       Mr. Hooker. Mr. Hooker argued that any award of sanctions against him for filing
       lawsuits to protect the Tennessee Constitution was unwarranted, and that such
       lawsuits should not be limited by the courts. On June 27, 2003, the trial court entered
       an order issuing sanctions against Mr. Hooker. The trial court held that “[i]n order
       to protect Mr. Hooker’s ability to have meaningful access to the courts while
       preventing needlessly repetitive or frivolous litigation” the following sanction was
       warranted:

                  First, Mr. Hooker shall pay all outstanding court costs associated
               with any previous filings in which he is the plaintiff that have been
               dismissed. He shall not be allowed to file any further complaints in


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              Circuit or Chancery Court for the 20th Judicial Division against the
              State of Tennessee and/or any elected officials, either in their
              individual or official capacity, in which he is plaintiff, until such costs
              are paid.
                Second, any complaint filed by Mr. Hooker within the next twenty-
              four (24) months in any of the State Trial Courts of the 20th Judicial
              Division, shall be submitted by the Clerk to the Special Master of the
              Circuit Court who shall determine:
                1.    Whether the complaint alleges violations of Article X Section
                      3 of the Tennessee Constitution and/or Section 2-19-126,
                      T.C.A., and
                2. Whether such filings are legally frivolous and/or are merely
                      duplicative of matters already litigated.
              The Special Master will then provide a written report reflecting those
              findings to the Presiding Judge of the Davidson County State Trial
              Courts with copies to Mr. Hooker, his counsel and all named
              defendants. In this report the Special Master shall recommend
              whether the complaint should proceed or be dismissed. No answer
              or responsive pleadings shall be required unless the complaint is
              allowed to proceed and the time for filing such responsive pleading
              shall commence to run upon filing of said report. If Mr. Hooker
              and/or any of the named defendants are dissatisfied with the
              determination by the Special Master they may request that the
              Presiding Judge review the report by filing a motion seeking relief
              within ten (10) days of entry of the report; otherwise, the report may
              be adopted by the Presiding Judge without hearing.

       Thus, the trial court imposed a screening mechanism for two years during which any
       complaint filed by Mr. Hooker in state trial court must be submitted by the clerk of
       the court to a special master. According to the order, the special master must then
       determine whether Mr. Hooker’s new lawsuit is frivolous or duplicative of other
       lawsuits previously filed by him. The trial court noted that it was “reluctant to
       impose any sanction that would create a barrier that denies the right of citizens to
       challenge the interpretation of our Constitution, statutes and case law.” The trial
       court observed, however, that “endless litigation over the same subject is detrimental
       to our society . . . . An unsuccessful litigant should not be allowed to keep filing the
       same lawsuit in different courts hoping to obtain a different result on a settled point
       of law.” Therefore, to balance Mr. Hooker’s interest in having meaningful access to
       the courts with the potential harm of endless repetitive litigation, the trial court
       concluded that the specially-tailored screening mechanism would be an appropriate
       sanction.

Hooker v. Sundquist, 150 S.W.3d at 409-10.


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         The difficulty with faulting the Chancellor for refusing to impose sanctions in the case at bar
is that it is plain from the report of the Special Master of February 18, 2004, that after reciting both
the provision regarding Article X Section 3 of the Tennessee Constitution together with Tennessee
Code Annotated section 2-19-126 and the provision relative to legally frivolous or duplicative
lawsuits, the Special Master specifically ruled only on the constitutional and statutory provisions
without ever addressing the issue of frivolous or duplicative matters. The Special Master said only,
“further review is not required due to the limited scope of the 2003 order.”

       The same June 27, 2003, “fail-safe” order provides:

               If Mr. Hooker and/or any of the named defendants are dissatisfied with the
       determination by the Special Master they may request that the Presiding Judge review
       the report by filing a motion seeking relief within ten (10) days of entry of the report;
       otherwise, the report may be adopted by the Presiding Judge without hearing.

Hooker, 150 S.W.3d at 409-10.

       The record indicates that no party appealed the action of the Special Master nor in any way
challenged the recommendation of the Special Master that “the lawsuit at bar proceed.”

         If the defendants were dissatisfied with the report of the Special Master, their remedy was
to appeal to the Chancellor or the Presiding Judge of Davidson County State Trial Courts. Having
failed to do so, they now seek to hold the Chancellor to an abuse of discretion for refusing to impose
sanctions regardless of the “fail-safe” mechanism.

        This Court reviews the action of the trial court in refusing to grant Rule 11 sanctions in a
particular case under an abuse of discretion standard. Krug v. Krug, 838 S.W.2d 197, 205
(Tenn.Ct.App.1992). We are not prepared under these circumstances to hold that the Chancellor
abused her discretion.

        As to the issued raised by the appellee questioning the dismissal of his Complaint, it is but
a repetition of Hooker v. Thompson, 978 S.W.2d 541 (Tenn.Ct.App.1998) except that it addresses
the laws relating to presidential preference primaries rather than elections to the United States
Senate.

       Nothing in the Constitution of the United States or in the Constitution of Tennessee compels
the Congress of the United States or the legislature of Tennessee to prohibit the use of out-of-state
campaign contributions in the election process. As we held in Hooker v. Alexander, et al., No.
M2003-01141-COA-R3-CV (Tenn.Ct.App. May 20, 2005):


       Superimposed upon all these issues is the necessity to determine where the ultimate
       power to act lies. The ideal place to begin is with that monumental work on


                                                  -8-
       Constitutional Limitations by the great Judge Thomas McIntyre Cooley, former Chief
       Justice of the Supreme Court of Michigan and one of the truly great law writers of
       history. As he was quoted by the Supreme Court of Tennessee, Judge Cooley says:

               “[T]here was never a written republican constitution which delegated
               to functionaries all the latent powers which lie dormant in every
               nation, and are boundless in extent and incapable of definition.”
               Cooley, Const. Lim. p. 37, (175.) . . .

                        But, “in considering state constitutions, we must not commit
               the mistake of supposing that, because individual rights are guarded
               and protected by them, they must also be considered as owing their
               origin to them. These instruments measure the powers of the rulers,
               but they do not measure the rights of the governed. A constitution is
               not the beginning of a community nor the origin of private rights. It
               is not the foundation of law, nor the incipient state of government. It
               is not the cause, but the consequence, of personal and political
               freedom. It grants no rights to the people, but is the creature of their
               power, the instrument of their convenience, designed for their
               protection in the enjoyment of the rights and powers which they
               possessed before the constitution was made. It is but the frame-work
               of the political government, and necessarily based upon the pre-
               existing condition of laws, rights, habits, and modes of thought.”
               Cooley, Const. Lim. p. 36, (37.)

       Dibrell v. Morris, 15 S.W. 87, 90 (Tenn. 1891).

Hooker v. Alexander, 2005 WL 1212617 *2 (Tenn.Ct.App., May 20, 2005).

        Without either a federal or state constitutional proviso requiring a bar to out-of-state
campaign contributions, the allegations of the Complaint fail to state a cause of action, and the issues
were likewise preempted by the Federal Election Campaign Act, 2 U.S.C. § 453.

       The judgment of the Chancellor is in all respects affirmed with costs assessed to Appellants.



                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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