                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 09a0521n.06

                                     Nos. 08-6013, 08-6106

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                    FILED
JASON ANDREW JOHNSON,                        08-6013     )                       Jul 28, 2009
                                                         )                 LEONARD GREEN, Clerk
JOHN JAY HOOKER,                             08-6106     )
                                                         )
       Plaintiffs-Appellants,                            )
                                                         )   ON APPEAL FROM THE UNITED
TENNESSEE CENTER FOR                                     )   STATES DISTRICT COURT FOR
POLICY RESEARCH,                                         )   THE MIDDLE DISTRICT OF
                                                         )   TENNESSEE
       Plaintiff                                         )
                                                         )
v.                                                       )
                                                         )
PHIL BREDESEN, et al.,                                   )
                                                         )
       Defendants-Appellees.                             )




       Before: COLE and ROGERS, Circuit Judges; BARRETT, District Judge.*

       BARRETT, District Judge. Jason Andrew Johnson and John Jay Hooker appeal the district

court's order dismissing of their challenge to the State of Tennessee's method of selecting and

evaluating members of its supreme court. We affirm.

                                                I.




       *
        The Honorable Michael R. Barrett, United States District Judge for the Southern District of
Ohio, sitting by designation.
Nos. 08-6013, 08-6106
Johnson, et al. v. Bredesen, et al.

       The plaintiffs are registered voters in Tennessee. (Record on Appeal ("ROA") Vol. I, p. 84;

ROA Vol. 2, p. 176.) The plaintiffs brought their claims against Phil Bredesen, the current Governor

of Tennessee, Robert E. Cooper, Jr., the current Tennessee Attorney General, and William M.

Barker, Janice M. Holder, Gary R. Wade and Cornelia Clark, who are current or former Tennessee

Supreme Court Justices. (ROA Vol. 1, p. 85.) The plaintiffs also brought their claims against the

chairman and members of the Tennessee Judicial Selection Commission. (ROA Vol. 1, p. 85.)

       In 1994, the General Assembly of Tennessee enacted a retention election plan for the

Supreme Court of Tennessee and intermediate appellate courts ("The Tennessee Plan"). Appellants

challenge section 17-4-116 of the statute, which was amended in 1999 to provide as follows:

       (a) If an incumbent appellate court judge, whether appointed or elected, fails to file
       a declaration of candidacy for election to an unexpired term or to a full eight (8) year
       term within the prescribed time, or if such judge withdraws as a candidate after
       receiving a recommendation "for retention" from the judicial evaluation commission
       and filing the required declaration of candidacy, then a vacancy is created in the
       office at the expiration of the incumbent's term effective September 1. In this event
       the judicial selection commission shall furnish a list of nominees for the office to the
       governor as provided by § 17-4-109. From such list, the governor shall appoint a
       successor to fill the vacancy effective September 1. The appointment is subject to
       the action of the electorate in the next regular August election. The appointee shall
       file a declaration of candidacy and be voted on as provided by §§ 17-4-114 and
       17-4-115.

       (b) If the vacancy occurs more than thirty (30) days before the regular August
       election preceding the end of the term, the appointee is subject to election as
       provided in §§ 17-4-114 and 17-4-115.

       (c)(1) If a majority of those voting on the question vote in favor of electing the
       candidate, the candidate is duly elected to the office for the remainder of the
       unexpired term or a full eight (8) year term, as the case may be, beginning September
       1, and the candidate shall be given a certificate of election.



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Nos. 08-6013, 08-6106
Johnson, et al. v. Bredesen, et al.

        (2) If a majority or one half (1/2) of those voting on the question vote against
        retaining the candidate in office, then the candidate may not take office on September
        1, and a vacancy exists as of September 1 after the regular August election. The
        governor shall fill the vacancy from a group of three (3) nominees submitted by the
        judicial selection commission as provided in § 17-4-112.

        (d) If the vacancy occurs less than thirty-one (31) days before the regular August
        election, the appointee will not be voted on in such election and will take office on
        September 1. The term of office will be as provided in § 17-4-112(b).

Tenn. Code Ann. § 17-4-116 (2008).

        On August 31, 2006, the terms of Tennessee Supreme Court Justices E. Riley Anderson and

Adolpho A. Birch, Jr. expired. (ROA Vol. I, p. 87.) Prior to the expiration of their terms, these

justices announced that they did not intend to seek reelection or file a declaration of candidacy for

another full eight-year term. (ROA Vol. I, p. 87.) Pursuant to the Tennessee Plan, the judicial

selection commission nominated three candidates for each seat. (ROA Vol. I, p. 87-88.) Governor

Bredesen then appointed Gary R. Wade and William C. Koch to fill the seats. (ROA Vol. I, pp. 87,

164.)

        The plaintiffs argue that they were prohibited by the Tennessee Plan from voting in a popular

election for candidates to fill the seats of Justices Anderson and Birch in violation of the Fourteenth

Amendment of the United States Constitution and Article VI § 3 of the Tennessee Constitution.

Hooker also argues that he was denied an opportunity to be a candidate for the Tennessee Supreme

Court, but he has not pursued this claim on appeal.

        The defendants moved to dismiss the plaintiffs’ claims. In response, Johnson filed a motion

for summary judgment along with a memorandum entitled "Memorandum in Support of Motion for

Summary Judgment and in Response to Motion to Dismiss." (ROA Vol. 1, p. 163.) The motions

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Nos. 08-6013, 08-6106
Johnson, et al. v. Bredesen, et al.

to dismiss and the motion for summary judgment were referred to the magistrate judge, who

recommended granting the motions to dismiss. (ROA Vol. 1, pp. 209, 266.) The magistrate judge

found that Johnson and Hooker lacked standing, had failed to state a Fourteenth Amendment Equal

Protection claim, and did not have a property right to vote for members of the Tennessee Supreme

Court in a popular election based upon the Tennessee Constitution. The magistrate judge also

recommended denying as moot Johnson's motion for summary judgment in light of the

recommendation granting the motions to dismiss. Over objections, the district court adopted the

magistrate judge's report and recommendation. (ROA Vol. 1, pp. 466, 487.)

       Hooker filed a motion to alter or amend the district court's order and a "Motion to Certify the

Question of Constitutionality of T.C.A. § 17-4-116 to the Supreme Court or in the alternative a

Motion under this Court's Pendant Jurisdiction to Address that Issue." (ROA Vol. 1, p. 477.)

Johnson also filed a motion to alter or amend the district court's order. (ROA Vol. 1, p. 488.) The

district court denied these motions. (ROA Vol. 1, p. 511.)

       This appeal followed.

                                                  II.

       This Court reviews de novo a district court's decision to dismiss a case for lack of standing.

Courtney v. Smith, 297 F.3d 455, 459 (6th Cir. 2002), citing Am. Fed'n of Gov't Employees v.

Clinton, 180 F.3d 727, 729 (6th Cir. 1999).

                                                  A.

       As an initial matter, the plaintiffs argue that the district court should be reversed for failing

to convert the motions to dismiss to motions for summary judgment. The plaintiffs state that certain

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Nos. 08-6013, 08-6106
Johnson, et al. v. Bredesen, et al.

evidence was filed in response to the motions to dismiss, and was not excluded by the district court.

This evidence includes part of the legislative history of the Tennessee Plan, a proposal from the 1977

Tennessee Constitutional Convention, copies of returns of the Tennessee Constitutional Referendum

Election in March 7, 1978, historical documents related to election returns for members of the

Tennessee Supreme Court, newspaper articles publishing election returns, a copy of the complaint

filed in DeLaney v. Thompson, Davidson County Chancery Court, No. 98-1048-111, a report of the

American Judicature Society on Judicial Merit Selection, and an affidavit of Appellee Johnson.

(Joint Appx. Vol. 1, Exs. 1-28.)

       Federal Rule of Civil Procedure 12(b) provides: “If, on a motion under Rule 12(b)(6) or

12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must

be treated as one for summary judgment under Rule 56. All parties must be given a reasonable

opportunity to present all the material that is pertinent to the motion..”

       The district court did not dismiss the plaintiffs’ claims pursuant to Rule 12(b)(6). While the

district court did find that the plaintiffs failed to state a claim under the Fourteenth Amendment, the

district court only reached this conclusion as an alternative to the finding that the court lacked

jurisdiction. Unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court need not

convert a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) into one for

summary judgment when materials outside the pleadings are considered. Rogers v. Stratton

Industries, Inc., 798 F.2d 913, 916 (6th Cir. 1986).

                                                  B.



                                                 -5-
Nos. 08-6013, 08-6106
Johnson, et al. v. Bredesen, et al.

        Article III, § 2, of the Constitution limits federal jurisdiction to the resolution of “Cases” and

“Controversies.” The case-or-controversy requirement is satisfied only where a plaintiff has

standing. Sprint Communications Co., L.P. v. APCC Services, Inc., 128 S.Ct. 2531, 2535 (2008).

To satisfy the standing requirement, “[a] plaintiff must allege personal injury fairly traceable to the

defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v.

Wright, 468 U.S. 737, 751 (1984); see also Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (explaining that the “irreducible

minimum” constitutional requirements for standing are proof of injury in fact, causation, and

redressability).

        The district court found that the plaintiffs lacked standing because the injuries of which they

complain are “simply the consequences of following the appointment and retention plan for election

of appellate court judges passed by the Tennessee legislature under . . . the Tennessee Plan.” (ROA

Vol. 1, p. 468.) The district court noted that the Tennessee Supreme Court had twice upheld the

constitutionality of the Tennessee Plan. (ROA Vol. 1, p. 468.) However, the Supreme Court has

cautioned that the threshold inquiry into standing “in no way depends on the merits of the plaintiff’s

contention that particular conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500 (1975). The district

court was thus required to put aside the issue of constitutionality of the Tennessee Plan, and instead

consider whether the plaintiffs satisfied the standing requirement.

        The Supreme Court has long held that a plaintiff does not have standing “to challenge laws

of general application where their own injury is not distinct from that suffered in general by other

taxpayers or citizens.” Hein v. Freedom From Religion Foundation, Inc., 127 S.Ct. 2553, 2562

                                                   -6-
Nos. 08-6013, 08-6106
Johnson, et al. v. Bredesen, et al.

(2007), quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 613 (1989). This is because “[t]he judicial

power of the United States defined by Art. III is not an unconditioned authority to determine the

constitutionality of legislative or executive acts.” Id., citing Valley Forge, 454 U.S. at 471.

       For example, in Lance v. Coffman, the Supreme Court found that four Colorado voters did

not have standing to bring their claim that a clause of Colorado’s Constitution, as interpreted by the

Colorado Supreme Court, violated the Elections Clause of the U.S. Constitution. 549 U.S. 437, 441

(2007) (per curiam). The Supreme Court explained: “The only injury plaintiffs allege is that the

law--specifically the Elections Clause--has not been followed. This injury is precisely the kind of

undifferentiated, generalized grievance about the conduct of government that we have refused to

countenance in the past.” Id. at 442. The Court distinguished the alleged injury from “the sorts of

injuries alleged by plaintiffs in voting rights cases where we have found standing.” Id., citing Baker

v. Carr, 369 U.S. 186, 207-208 (1962) (finding voters had standing to challenge state apportionment

statute under Equal Protection clause). The Court concluded that “[b]ecause plaintiffs assert no

particularized stake in the litigation, we hold that they lack standing to bring their Elections Clause

claim.” Id.

       The plaintiffs have not established an injury sufficient to confer standing. The plaintiffs have

only alleged that the Fourteenth Amendment is not being followed, and have failed to assert a

“particularized stake in the litigation.” Therefore, the district court did not have jurisdiction over

the plaintiffs’ Fourteenth Amendment claims, and dismissal was proper.

                                                  C.



                                                 -7-
Nos. 08-6013, 08-6106
Johnson, et al. v. Bredesen, et al.

       Finally, this Court reviews the district court’s denial of the motions to alter or amend for

abuse of discretion. National Ecological Foundation v. Alexander, 496 F.3d 466, 476 (6th Cir.

2007), citing Perez v. Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir. 1998) (en banc). However,

to the extent that the motion to alter or amend was based on an erroneous legal doctrine, the standard

of review is de novo. Id.

        In ruling on the motions to alter or amend, the district court rejected the plaintiffs’ arguments

that the constitutionality of the Tennessee Plan is an open question in light of DeLaney v. Thompson,

982 S.W.2d 857 (Tenn. 1998). Because the district court lacked jurisdiction over the plaintiffs’

claims, we affirm the denial of the motions to alter or amend.

       The judgment of the district court is affirmed.




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