*1 HOUSE, The CITY OF WHITE
Appellant, Ray WHITLEY,
Lawrence District Attor
ney Eighteenth General for the Judicial Tennessee,
District of the State of John
Carney, Attorney District General for
the Nineteenth Judicial District of the
State of Tennessee and State of Tennes
see, Appellees, (Ted)
Taylor Emery, Sheriff for Robertson
County, Tennessee; Vandercook, J.D. County, Tennessee,
Sheriff for Sumner
Defendants. Tennessee,
Supreme Court of
at Nashville.
Oct. Amonette, Gallatin, appellant
David for City of White House. Jenkins,
Douglas Rogersville, T. W. Lewis Jenkins, Jr., Wilkerson, Hayes, Gauldin & Dyersburg, NonLawyer for curiae amicus Claiborne, Judges General Sessions Greene, Lake and Counties. Obion Walkup, Attorney John Knox General & Moore, Reporter, Michael E. Solicitor Gener- al, Smith, Gordon W. Associate Solicitor Gen- eral, Nashville, Whitley appellees & Car- ney. *2 office, matter of for the instead left the but
OPINION city’s govern- judge’s to a qualifications the DROWOTA, Justice. ing body. appeal, In this are confronted with the mayor and From 1973 until the of Article Section 8 of question whether appointed of of White House board aldermen precludes non- the Tennessee Constitution municipal judge. as lawyers to serve various judges attorney presiding over trials of serving municipal judge as When the offenses which are mayor of resigned in the and board determined that in- incarceration.1 We have aldermen, practice in following a common charged with a criminal offense dividuals state, requested gener- parts other the of the punishable incarceration are constitution- and Sum- attorney pre- al sessions from Robertson ally judge entitled to have an However, judge for the County municipal at the trial. ner to act as side provi- waived in a manner consistent with the City general of House. The sessions White 5(c), Rule R.Crim. P. The sions of County presided the judge from Sumner apply to principles announced herein part city in the of located arising eases the cases tried or retried after the date of this County, general and the sessions Sumner on opinion, and to all cases judge County presided over from Robertson has been which the due issue raised city part in the the arising the cases preserved in the trial court as a ground and County. Both these located in Robertson appeal. Accordingly, judgment for the of the general sessions court were licensed Court of is affirmed. attorneys. arrangement for This continued years, two but from 1990 to the
BACKGROUND as County of Sumner served City The City White House lies both Sum- municipal judge the sole for City ner and Robertson The Counties. was White House. incorporated mayor under a and aldermanie 1994, Mayor Upon resignation in her pursuant charter to state At law.2 Aldermen, pursuant state and Board time of its incorporation, enabling statutes,5 establishing a enacted an ordinance provide not a municipal statutes did popularly court with a elected fact,
judge,
provided
mayor
judge.
authorized the munici-
The ordinance
powers
justice
peace
had “all the
of a
of the
pal judge
“to exercise
concurrent
municipality,
within the
purpose
for the
with courts of
sessions in all cases
keeping
peace
trying
offenses
involving
law of
the violation of the criminal
against
or the laws
ordinance
of the
corporate
within the
limits of the
Assembly
state.”3
the General
en-
city_”
age,
The ordinance contained
resi-
empower
a statute4
governing
acted
dence,
requirements
minimum education
body
municipality
of a
to establish
office
municipal judge by
require
municipal judge
but did
to be
ordinance. The stat-
not
prescribe specific qualifications
not
law in
ute did
licensed to
Tennessee.6
(1994
arguments
§§
&
1. Oral
were heard in
case on
Code Ann.
16-18-101
16-18-102
Shelbyville,
County,
April
Tennessee,
Repl.).
Bedford
part
as
of this Court’s S.C.A.L.E.S.
(Supreme
Legal
Advancing
Education for
through
§§
5.
Ann.
16-18-
Tenn.Code
16-18-201
Students) project.
(1994 Repl.).
(1971
§§
&
2. Tenn.Code Ann.
6-101
6-134
qualification
pro-
6. The
section of the ordinance
replaced
Repl.) repealed
Tenn.
(1992
municipal judge
vides
follows: “The
shall be
through
§§
Code Ann.
6 4 -402
City
year
resident
White
House one
Repl. Supp.1997).
&
immediately
years
five
resident of Tennessee
years
preceding
election and at least 30
(1971
his/her
Repl.).
3.
Ann. 6-132
Tenn.Code
addition,
age.
municipal judge
shall be
graduate,
degree
(Supp.1973).
from an
Ann.
with
Tenn.Code
17-123
These
B.S./B.A.
statutes,
amended,
higher
are now codified at Tenn.
accredited
education.”
institution
August
Following
residents of White
argument,
oral
and after consid-
Bobbitt, Jr.,
House elected Charles R.
to the
eration of
agreed upon by
the facts as
municipal judge.
parties
parties
record,
office of
to this
and the
the trial court filed an
appeal stipulated
opinion
concluding
the trial court that Mr.
that neither the Constitu-
tion,
Bobbitt meets all state
nor
constitutional and
statutes
mu-
*3
nicipal
statutory requirements
judges to
practice
to
be licensed to
law
hold the office of
However,
Therefore,
or
municipal judge.
learned
the law.
the trial
Mr. Bobbitt is
court
not a
declared that
attorney.
“[concurrent
licensed
authority
with courts of
election,
Following
appellees,
Dis
as set forth in
Title 40
all cases of the
Attorneys
trict
Eighteenth
General for the
violation of criminal laws of the
Districts,
and Nineteenth Judicial
declined to
municipali-
Tennessee within the limits of the
prosecute in
Municipal
the White House
ty exists in
City
the White House
Court.”
Court violations of state
occurring
statutes
However, the trial court declined to issue a
Instead,
within the
city
White House
limits.
directing
writ of mandamus
the district attor-
they
prosecute
chose to
these
cases
neys general
prosecute
state warrant vio-
General Sessions Courts of Robertson or
Municipal Court,
lations in the White House
Sumner
appellees’
Counties. The
decision
municipal judge
and also declared that
upon
prosecuting
based
a concern that
authority
had
to order the Sumner Coun-
state warrants in
the White House
ty
prisoners
Sheriff to
incarcerate
might
Court
be a violation of due
absence of a contract between
House
White
Judge
because
Bobbitt was not a licensed
County.7
and Sumner
attorney.
appellees
The concerns of the
attorneys appealed
The district
the trial
Attorney
were echoed
the Tennessee
Gen
judgment,
court’s
and the Court of
Reporter
eral and
who rendered a formal
reversed,
concluding that Article
Section 8
16, 1994,
that,
opinion on
stating
June
as a
interpreted
the Tennessee Constitution as
non-attorney judge, Judge
might
Bobbitt
Anglin
this Court
State ex rel.
disqualified by
disposing
“from
Mitchell,
supra,
prohibits
non-attorney
involving
adults where such cases
presiding
from
over the trial of a
possibility
involve the
of incarceration or oth
defendant for an offense
incar-
er
liberty.” Op. Att’y
Gen.
Thereafter,
granted
City
ceration.
(June 16,1994).
U94-91
Attorney
The State
permission
appeal
White House
to decide
opinion
General’s
in large part
was based
important
issue
constitutional
law.
prior
decision of this Court
stated,
For the reasons herein
we affirm the
non-attorney judges may
not consistent
judgment
Appeals.
ly
process preside
juvenile
with delinquency hearings
juvenile
where the
DUE PROCESS
possibility
faces the
of confinement or other
addressing
Before
the central issue in
liberty.
loss
State ex rel.
v. Mitch
briefly
appeal,
we will
address the con
ell,
(Tenn.1980).
tention of the amicus curiae that this
present
justiciable controversy.
does not
Preferring
expense
to avoid the time and
Miller,
This Court in Miller v.
149 Tenn.
requiring
city police
their
officers to travel
(1924), explained
concept
S.W. 965
Gallatin,
County,
either
in Sumner
or
justiciable controversy
Declaratory
under
Springfield,
County,
prose-
in Robertson
Judgment Act as follows:
occurring
cute violations of state law
limits,
city
city
only controversy necessary
White House
officials
to invoke
attorneys
asked the
district
to recon-
the action of the court and have it to
position.
appellees
rights
declaratory judg
sider their
When the
de-
declare
under our
clined,
City
question
of White
must be
House filed suit
ment statute is that the
theoretical;
Chancery
real,
County seeking
Court in Sumner
rais
and not
interest,
declaratory
injunctive
ing
relief.
it must
real
and there
have a
parties
appeal.
7. The Sheriffs of Sumner and Robertson Coun-
ties áre not
to this
trials of
presiding over
torney judges from
real interest
having
one
must be some
by in
punishable
are
offenses which
may oppose
who
the declara-
question
necessary that
It is not
carceration.
sought.
tion
committed, any
be first
breach should
Court,
City
House
of White
In this
invaded,
pur-
wrong
done.
Appeals erred
that the Court
asserts
act,
expressed
in section
pose of the
court
of the trial
judgment
reversing the
thereof,
relief
and to afford
is to ‘settle
Municipal Judge
House
the White
because
insecurity with re-
uncertainty and
statutory re-
all constitutional
satisfies
legal
other
rela-
spect
rights, status and
office,
do not
which
to hold the
quirements
tions;
liberally construed and
is to be
law. The
being licensed
include
administered.’
that no statute
agreeing
appellees, while
972;
Cummings v. Beel
at
see also
*4
261 S.W.
requires the White
provision
constitutional
151, 156,
er,
915
223 S.W.2d
189 Tenn.
licensed at-
Judge to be a
House
test,
that
we conclude
Applying that
office,
holding
none-
of
torney as a condition
justiciable controver
appeal presents a
this
I,
8 of
that Article
Section
theless assert
The
is real not theoretical.
sy. The issue
a non-attor-
prohibits
Tennessee Constitution
is not an att
municipal judge White House
a criminal
presiding
over
ney judge
him
yet
city
grants to
orney,8
ordinance
in a citizen’s
result
proceeding which
general
jurisdiction
with courts of
concurrent
incarceration.
sessions,
preside
including jurisdiction to
appellees. There is
agree with the
We
criminal cases in which incarceration
provision
statutory or constitutional
general
Attorney
punishment. The
Gen
possible
a
municipal judge be
a
which mandates that
pro
opined that due
eral of this
State
stat-
practice law.9 The relevant
licensed to
non-attorney judge
may preclude a
cess
popularly elected
requires a
ute
involving adults
disposing
“from
of cases
requirements established
judge to “meet the
possibility
of
where such eases involve
VI,
Ten-
§ 4
of the Constitution
article
liberty.”
or other
incarceration
of inferior courts.”
nessee
Attorney
relied
opinion,
In that
General
(1994Repl.). Article
§Ann.
Code
published
a
decision of this Court.
VI,
provides
that the
Section
City
of White House has an interest
Chancery
Judges of
the Circuit and
directly
appeal
because it
the outcome of
Courts,
Courts,
shall
and of other inferior
scope of
which can be de
affects the
cases
of the
by
qualified
voters
be elected
by
municipal judge. The District
cided
its
they are to be
circuit to which
district or
in the
Attorney Generals have an interest
Every Judge of such Courts
assigned.
appeal
as a result of their
outcome of
shall
thirty years
age,
shall be
prosecute
statutory duty to
violations
election,
have been a resident
before his
present,
At
it is not
state criminal laws.
years
five
and of the
the State for
circuit
duty can
constitution
clear whether that
be
of service
year.
one
His term
or district
in the
ally
by prosecuting cases
fulfilled
years.
eight
shall
City
all these rea
White House
Court. For
Therefore,
nor the Consti-
neither the statute
appeal presents a
conclude that this
sons we
municipal judge be
Therefore,
tution
that a
will
controversy.
we
justiciable
holding
attorney
a condition of
8 of
licensed
whether Article
Section
now consider
However,
by
appel-
recognized
office.
precludes non-at
the Tennessee Constitution
(1945); Dockery Dockery,
S.W.2d
granted
appel-
v.
Recently,
the motion of the
1977).
(Tenn.
post-judgment
App.
facts
fol
lees to consider as
Johnson,
6, 1998,
August
lowing:
Susan
On
attorney,
elected to the office of
licensed
municipal judges
recognize
of cities
that
9. We
City Judge. These facts do not
White House
160,000
population
under
having a
in excess of
moot,
appeal
appeal
This
render this
however.
any subsequent
cen-
federal
the 1980 census or
importance
question
great public
involves a
in the
law
be authorized
sus must
likely
in that a considerable
which is
to recur
municipal
§Ann.
17—1—
Tenn.Code
courts of Tennessee.
general
sessions
number of
106(d) (1994 Repl.).
non-lawyers.
McCanless
in Tennessee are
Klein,
631, 637,
v.
182 Tenn.
lees,
liberty
issue
this'
is not whether a
property,
by
judgment
but
municipal judge
attorney
peers
must be a licensed
or the
law the land.
Instead,
as a
condition of
the office.
Mitchell,
supra,
State ex rel.
non-attorney municipal
issue is whether a
adjudication
this Court
concluded
judge may constitutionally preside over the
delinquency
commitment m the De-
trial of criminal
punisha-
offenses which are
partment
by
a non-attorney
Corrections
ble
incarceration.
process guaranteed by
violates the due
portion
the “law of the land”
of this constitu-
stated,
previously
As
the White House Mu-
provision.
tional
this Court em-
nicipal
jurisdiction
Court has criminal
“con-
phasized
of law is the
“[d]ue
current with courts
sessions
primary
indispensable
foundation of indi-
involving
the violation of the criminal
freedom,”
vidual
and the “basic and essential
corporate
laws of the
limits
compact
term the social
which defines the
city-”
Courts of
rights
pow-
of the individual and delimits the
are vested with
Id.,
ers which the state
exercise.”
try
judg-
and determine and render final
Gault,
(quoting
S.W.2d at
In re
387 U.S.
ment
brought
all misdemeanor eases
1428, 1439-40,
That no man shall be taken or freehold, juvenile or disseized liberties or While involved a court ad outlawed, exiled, privileges, judication delinquency, or or or in the rationale of life, destroyed deprived applies equal manner of his with force in the decision
267 non-attorney judges have made to the recog which appeal. As context of in this State. His- justice administration of nized in a criminal defendant has existed for torically, compelling reasons al- representation by right constitutional laypersons judges. Commu- lowing to act as attorney. legally Argersinger v. qualified settled, transportation sparsely nities were Hamlin, 2006, 407 U.S. 92 S.Ct. 32 difficult, slow, was few communication (1972); Wainwright, v. L.Ed.2d Gideon available, lawyers and the law was not were U.S. L.Ed.2d Comment, today. complex it is See To a lesser standard of a Process—-Permit- “Constitutional Law—Due judge presiding over the trial of a criminal Non-Attorney Judges to Preside ting Over punishable incarceration would de offense is Pun- the Offense Criminal Trials Which purpose of right feat the constitutional by a Violates ishable Sentence Defen- Jail respect importance to the counsel. With Trial,” a Fair Right to dants’ Fundamental counsel, the United Su States (1975); see also 28 Van.L.Rev. 423-34 Alabama, preme in Powell v. Court stated Yuba Judicial Gordon Justice Court for be, many would right to be heard County, 12 Cal.3d District Sutter cases, compre- if it of little avail did not (Cal.1974). Cal.Rptr. 525 P.2d hend the to be heard counsel. justifications permitting The initial non-attor- intelligent layman Even educated ney judges preside over trials of criminal no small and sometimes skill in the incarceration, howev- offenses crime, charged If science of law. with he er, society. longer in modern There exist is incapable, generally, determining has been a vast increase the number of good himself whether indictment is attorneys improvements in and tremendous bad. He is unfamiliar with rules of transportation and communication. Further- Left without the aid counsel evidence. more, perhaps importantly, in- most put proper he on trial without a *6 law and crimi- complexity creased of criminal charge, incompetent and convicted procedure greatly nal enhanced the evidence, or is- evidence irrelevant to the layperson judge probability that a will be sue or otherwise inadmissible. lacks He complexi- effectively unable to with the deal knowledge both adequately the skill and light ties inherent in a criminal trial. defense, prepare though even have a he changes, we hold legal these societal and perfect requires guiding one. He the hand process Article protections the due Sec- every step proceedings counsel at the guaran- tion 8 of the Constitution it, against though him. Without he be not a on trial for an tee to criminal defendant guilty, danger he faces the of conviction punishable by right incarceration the offense how because he does not know to establish attorney judge. to be tried an before See his innocence. Gordon, 632, Cal.Rptr. 525 also 115 P.2d at 523, 74; 45, 68-69, Dunkerley, State v. 134Vt. 365 287 A.2d U.S. 77 L.Ed. (Vt.1976). 131 Certainly, 158 recognized as we Anglin, inherently guar- it is inconsistent to reject In so the holding, we rationale giving antee without right the counsel also Russell, North v. 427 U.S. 96 S.Ct. right attorney to have defendant the an (1976), in which 49 534 L.Ed.2d judge proceeding may in a when result Supreme concluded that United States liberty. sys- legal Since our since, appeal, on novo trial a a de before regards tem denial of counsel as a denial of available, lawyer accused a an adult fairness, logically it fundamental follows that may impris be misdemeanor for which he provide judge qualified a failure process oned is not law under denied comprehend legal argu- and utilize counsel’s initially when he is the federal constitution ments process. likewise is a denial non-attorney judge. tried before a
By suggest stating, so we do not that a fan- tried and jurisdiction, an accused who is con impossible presided by trial is in a court over in a court exercis victed a criminal offense Indeed, non-attorney a has the judge. recognize ing general right we attorney judge novo an appeal commend the valuable contribution to de before 268 imposed, either the circuit or criminal court. Tenn. where incarceration a non- (1997 Supp.); attorney judge may long
Code Ann.
27-5-
act so
as the defen-
(1980
5(c).
Repl.);
process right
108
Tenn. R.Crim. P.
dant waives the due
to have the
view,
resulting
proceedings presided
by
attorney
our
the due
violation
over
an
Gordon,
attorney
judge.
Cal.Rptr.
the lack of an
is not
See
State,
by
79;
statutory right
cured
to a de novo P.2d at
Shoemaker v.
375 A.2d
appeal.
(Del.1977);
State,
As this Court
stated
Treiman v.
(Fla.1977).
classify
cannot countenance
“[w]e
as con- So.2d
The defendant
any procedure whereby
stitutional
may voluntarily relinquish
it is neces-
to an
waiver,
sary that a
attorney judge by executing
citizen stand two trials in order to
a written
Id.,
5(c),
get
provisions
one fair trial.”
justice
hearing
at the earliest
on
merits.
CONCLUSION
appeal
It is unreasonable to
principles
Applying
foregoing
to the
safeguards
order to obtain access to all the
that,
appeal,
facts of this
we
in the
conclude
deemed essential for a fair trial. The second
by
a criminal
absence of written waiver
hearing
only
anxiety,
will not
re-create
inse-
provisions
defendant consistent with the
strain,
curity,
likely
but is
to be time
5(c),
Pro.,
Rule
the non-attor-
R.Crim.
consuming, expensive, and burdensome as
ney municipal judge
City of
White
Gordon,
Anglin, supra;
Cal.Rptr.
well.
authority
preside
trials
House has no
632,
State,
RUSSELL,
Justice,
In
584 S.W.2d
Special
concur.
authority
responsi-
accordance with our
HOLDER, J., separate dissenting opinion.
State,
bility as the court of last resort in this
hereby
that
hold
Article
Section 8 of
HOLDER, J., dissenting.
guarantees
the Tennessee
cit-
Constitution
majority’s
respectfully
I
dissent from the
izens of this
of a criminal
State accused
opinion.
has
forth the
legislature
The
set
offense
incarceration the
rule man-
requirements
judges.
While a
attorney judge.
to a trial before an
municipal judges may
dating attorney
be de-
sirable,
By
provision
either the state or
stating,
so
we do not hold that
attorney judges.
municipal
requires
judges
or
sessions
must be
federal constitution
attorneys
disagreement
legislative
with
mandate
licensed
to hold office or to exer Mere
for this
jurisdiction.10
is
a sufficient reason
Court
cise other duties and
Such
neither
a sufficient reason for
judges may
legislation
still function in civil
and in
redraft
nor
Consti-
involving potential
to redefine the Tennessee
criminal cases not
incar
Court
Moreover,
rejected
unconstitu-
policy
in
The
ceration.
even
criminal cases
tution.
Advisory
practice
Municipal
Ser-
Approximately twenty-two general
law.
Technical
Tennessee,
vice,
Directory
University
court
in Tennessee are not licensed to
Ten-
addition,
approximately
(1996).
law.
seven-
nessee
Officials
ty-five municipal
judges are not licensed to
court
(Tenn.App.
This
that the
held
process clause of the state constitution is
reasoning in
majority
relies
scope
purpose
"with that of
Mitchell,
identical
ex rel.
v.
Hale,
(Tenn.1980),
federal constitution. See State
and the doctrine of stare
(Tenn.1992) (holding ‘“the
de novo unfair, fundamentally majority and apply juveniles’ pro- 2. declined to its new constitutional sentences went into im- retroactively. agree I nouncement Were to effect; mediate I majority’s process analysis, with the juveniles felony charges car- 3. faced apply retroactively under would the new rule rying liberty “loss of for from seven to in Meadows Court’s standard enunciated eight years”; and (Tenn.1993). State, S.W.2d Meadows, juveniles days in which to this Court held that new had five applied constitutional rule shall be retroac- perfect opposed thirty to tively post-conviction proceedings if the days. “materially integrity new rule enhances the Id. at 790-91. This North to be Court found reliability finding process of the fact and inapplicable based on the above factors and questions the trial” and “raises serious about juvenile judges held that must be licensed past accuracy guilty verdicts trials.” lawyers disposition juve- “to make of a Clearly, Id. at 754. under the Meadows standard, operates deprive him designed nile that to confine a new rule to eliminate a prohibit a defendant from held liberty.” .to him of his Id. at 791. fair, trial obtaining a reliable and accurate us, majority’s In the case now before applied retroactively. should be non-attorney primary ability is the concern are pre- session of fact in cases before the exclusive finders side over cases “where incar- misdemeanor majority has that their courts. The held imposed.” ceration misdemean- non-attorney judges preside permitting (1) cases, defendants are: entitled de over criminal matters raises serious constitu- appeals; thirty days novo have accuracy questions concerning the tional perfect appeal; which to a de novo reliability majority of criminal trials. The face maximum sentence of eleven months that it “cannot and classi- states countenance would, therefore, twenty-nine days. I any procedure whereby it fy as constitutional necessary is that a citizen stand two trials to Anglin inapplicable ease hold I, therefore, get question the one fair trial.” now before us for the same reasons majority’s ap- retroactive decision refuse majority inap- held that North was plication the new constitutional rule when plicable I Anglin. would further hold majority holds that the “old rule” denies legislature it is for the and not for this Court right to a fair trial. a citizen the requirements to redraft the office opin- judge. majority’s The effect of the ion, however, is to redraft the constitution to majority’s notions of fundamental
reflect
fairness.5 55-8-152, (classifying majority non-attorney judges Ann. -154 vi-
4. The holds that Tenn.Code misdemeanors); constitutionally preside speed still "civil limit laws as olations involving potential and in criminal cases not (defining prohibit- §§ Tenn.Code Ann. Presumably, majority’s incarceration.” hold- misdemeanors). *9 parking C ed violations as Class prohibit non-attorney judges pre- ing front would siding over most traffic violations codified in the and non- 5. The distinction between incarceration Code Annotated. See Tenn.Code Ann. majority if the is declar- incarceration is tenuous ("Pedestrians Roadways” on defined incap- ing non-attorney judges generally are misdemeanor); C Tenn.Code Ann. Class conducting fair trials. An individual able of 55-8-146, (defining §§ -147 as misdemeanors wrong just compensation seeking for a civil crossings); stop failure the to at railroad a fair trial as an individual as much (stating C mis- Tenn.Code Ann. 55-8-149 Class of a minor traffic violation. accused stop stop sign); for failure to at a demeanor