The City of White House v. Whitley

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

FILED

THE CITY OF WHITE HOUSE, ) June 18, 1997

)

Plaintiff/Appellee, ) Cecil W. Crowson

) Appellate Court Clerk

)

VS. ) Sumner Chancery

) No. 95C-41

)

LAWRENCE RAY WHITLEY, ) Appeal No.

District Attorney General for the ) 01A01-9612-CH-00571

Eighteenth Judicial District of the )

State of Tennessee, )

ET AL., )

)

Defendants/Appellants. )

DISSENTING OPINION

The sole issue on this appeal is whether Tenn. Const. art. I, § 8 requires

municipal court judges to be licensed lawyers if they exercise concurrent

jurisdiction with general sessions courts in cases involving violations of state law

within the territorial limits of their municipality. Issues relating to the

qualifications of Tennessee’s judges are of compelling public importance

requiring deliberate, careful consideration. I cannot concur with either the court’s

methodology or its result.

I.

The City of White House lies in both Robertson and Sumner Counties. It

was incorporated in 1971 using a mayor and aldermanic charter authorized by

Tenn. Code Ann. §§ 6-101, -134 (1971).1 The enabling statutes at that time did

not provide for a municipal judge, and in fact, Tenn. Code Ann. § 6-132 stated

1

These statutes pertaining to mayor-aldermanic charters were repealed in 1991 and were

replaced by Tenn. Code Ann. §§ 6-1-101 through 6-4-402 (1992 & Supp. 1996).

that the mayor had “all the powers of a justice of the peace within the

municipality, for the purpose of keeping the peace and trying offenses against any

ordinances or the laws of the state.”

In 1972, the United States Supreme Court held that the Due Process Clause

of the Fourteenth Amendment prohibited mayors from serving as judges when the

fines, forfeitures, costs, and fees generated by their courts provided a substantial

portion of the city’s funds. Ward v. Village of Monroeville, 409 U.S. 57, 61, 93

S. Ct. 80, 83 (1972). Accordingly, in 1973 the General Assembly enacted Tenn.

Code Ann. § 17-123 (Supp. 1973)2 to empower the governing body of the

municipality to establish the office of municipal judge by ordinance. Rather than

prescribing specific qualifications for the office, Tenn. Code Ann. § 17-1233 left

the matter of the judge’s qualifications to the city’s governing body.

From 1973 until 1988, the Board of Mayor and Aldermen of White House

appointed various lawyers to serve as municipal judge, presumably in accordance

with Tenn. Code Ann. § 17-123.4 When the person serving as municipal judge

resigned in 1988, the Board of Mayor and Aldermen, following a practice

common in other parts of the state, requested the general sessions judges from

Robertson and Sumner Counties to act as White House’s municipal judge.

Accordingly the general sessions judge from Sumner County presided over the

cases arising in the part of the city located in Sumner County, and the general

sessions judge from Robertson County presided over the cases arising in the part

of the city located in Robertson County. Both these general sessions court judges

were presumably licensed lawyers. Two years later, in 1990, the Board of Mayor

and Aldermen appointed a licensed lawyer to serve as the city’s sole municipal

judge.5

2

These statutes, as amended, are now codified at Tenn. Code Ann. §§ 16-18-101, -102

(1994).

3

This statute is currently codified at Tenn. Code Ann. § 16-18-102(2) (1994).

4

The record does not contain copies of the ordinances that would have been required for

the appointment of a municipal judge.

5

This appointment was presumably made in accordance with Tenn. Code Ann. § 16-18-

101 (the successor to Tenn. Code Ann. § 17-123); however, the record does not contain a copy

of the required ordinance.

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In 1992 the Tennessee Supreme Court held that municipal judges could not

constitutionally exercise concurrent jurisdiction over state criminal offenses if

they were appointed as opposed to elected. State ex rel. South Carthage v.

Barrett, 840 S.W.2d 895, 899 (Tenn. 1992). The General Assembly responded in

1993 by enacting Tenn. Code Ann. § 16-18-201, -207 (1994) authorizing

incorporated municipalities to enact ordinances providing for the popular election

of municipal judges.6 Tenn. Code Ann. § 16-18-202 prescribes the qualification

for these elected judges as follows: “[a]ny city judge elected by popular vote must

meet the requirements established in article VI, § 4 of the Constitution of

Tennessee for judges of inferior courts.”

On February 17, 1994, the Board of Mayor and Aldermen enacted

Ordinance 94-1 establishing a city court for the City of White House. Section 1-

503(b) contains age, residence, and minimum education requirements but does not

require the city judge to be licensed to practice law in Tennessee. The city judge

has jurisdiction to try “persons charged with the violation of municipal

ordinances.” See Section 1-502(a). If the city judge is elected, he or she also has

“the authority to exercise jurisdiction concurrent with courts of general sessions

in all cases involving the violation of the criminal laws of the state within the

corporate limits of the city.” See Section 1-502(c).

In August 1994, the residents of White House elected Charles R. Bobbitt,

Jr. as their first elected city judge. Mr. Bobbitt met all of the requirements for the

office contained in Ordinance No. 94-1, § 1-503(b) but was not a licensed lawyer.

Following the election, the District Attorneys General for the Eighteenth and

Nineteenth Judicial Districts, that include Robertson and Sumner Counties,

declined to prosecute violations of state statutes occurring within the White House

city limits in the White House City Court. Their decision stemmed from a

concern that prosecuting state warrants in the White House City Court might

violate the defendants’ due process rights because Judge Bobbitt was not a

licensed lawyer. The district attorneys general received some support from the

6

Tenn. Code Ann. § 16-18-201 establishes the electoral process as an alternative to the

appointment process. Municipalities may continue appointing their municipal judges if they

wish.

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Attorney General and Reporter who rendered an opinion on June 16, 1994 stating

that Judge Bobbitt “might also be disqualified from disposing of cases involving

adults where such cases involve the possibility of incarceration or other

deprivation of liberty.” See Op. Att’y Gen. U94-91 (June 16, 1994). The attorney

general’s observation was based on an extrapolation from an earlier Tennessee

Supreme Court decision holding that non-lawyer judges could not preside over

juvenile delinquency hearings where the juvenile faced the possibility of

confinement or other loss of liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d

779, 791 (Tenn. 1980).

The White House city officials desired to avoid requiring their police

officers to travel to either Gallatin or Springfield to prosecute minor violations of

state law occurring within the White House city limits. They requested the district

attorneys general to reconsider their position, and when the district attorneys

general declined, the City of White House filed suit in the Chancery Court for

Sumner County seeking declaratory and injunctive relief. The trial court filed an

opinion on March 27, 1996, concluding that city judges must meet all the

qualifications in Tenn. Const. art. VI, § 4, that the Constitution of Tennessee does

not require city judges to be “licensed to practice law or ‘learned in law’,” and

that municipal court judges are not required by statute to be authorized to practice

law. Accordingly, the trial court declared that “[c]oncurrent jurisdiction and

authority with courts of general sessions as set forth in Title 40 in all cases of the

violation of criminal laws of the State of Tennessee within the limits of

municipality exists in the White House City Court.” Later, on October 15, 1996,

the trial court declined to issue a writ of mandamus directing the district attorneys

general to prosecute state warrant violations in the White House city court and

declared that the city judge could not order the Sumner County sheriff to

incarcerate prisoners in the absence of a contract between White House and

Sumner County.

II.

The constitutional issue in this case transcends the status of the White

House City Court. It raises fundamental questions concerning our modern

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understanding of Tenn. Const. art. I, § 8. It will likewise affect the ability of non-

lawyer judges presiding over general sessions and municipal courts throughout the

state7 to adjudicate cases involving the violation of state criminal statutes where

the defendant faces the possibility of confinement or other loss of liberty. The

present controversy should be resolved by applying Tenn. Const. art. I, § 8 to

these circumstances. Regrettably, the court has abdicated its responsibility to

interpret the constitution and has decided instead to predict how the Tennessee

Supreme Court might decide the issue. Attempting to divine an answer from the

State ex rel. Anglin v. Mitchell decision is little more than judicial guesswork. The

Constitution of Tennessee deserves better.

The Constitution of Tennessee contains the fundamental principles that

order our government and society. Maxey v. Powers, 117 Tenn. 381, 400, 101

S.W. 181, 186 (1907); Bouldin v. Lockhart, 69 Tenn. 195, 199 (1878); State v.

Turk, 8 Tenn. (Mart. & Yer.) 286, 290-91 (1827). These principles do not remain

static but rather gather meaning from experience. National Mut. Ins. Co. v.

Tidewater Transfer Co., 337 U.S. 582, 646, 69 S. Ct. 1173, 1195 (1949)

(Frankfurter, J., dissenting). Thus, as Justice Henry was so fond of reminding us,

our constitution contains not just rules for the passing hour, but rather principles

for an expanding future. State ex rel. Anglin v. Mitchell, 596 S.W.2d at 785;

Cumberland Capital Corp. v. Patty, 556 S.W.2d 516, 530 (Tenn. 1977) (quoting

Benjamin Cardozo, The Nature of the Judicial Process 83 (1921)). While we

should remain committed to the growth and adaptation of constitutional

principles, Shousa v. Matthews Drivurself Serv., Inc., 210 Tenn. 384, 389, 358

S.W.2d 471, 473 (1962), we must make sure that new principles truly evolve from

old ones. Metropolitan Gov’t v. Poe, 215 Tenn. 53, 80, 383 S.W.2d 265, 277

(1964).

7

Twenty-one of the 159 general sessions judges in Tennessee are not lawyers. In

addition, 248 of the 343 incorporated cities in Tennessee have municipal courts. Approximately

75 of these courts are presided over by non-lawyer judges. See M. Lee Smith Publishers,

Tennessee Attorneys Directory (1997); Municipal Technical Advisory Service, University of

Tennessee, Directory of Tennessee Municipal Officials (1996). The number of city court judges

with law degrees has increased since 1978 when only 57% of the municipal court judges were

lawyers. Frederic S. Le Clercq, The Tennessee Court System, 8 Mem. St. U.L. Rev. 185, 437

(1978).

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Of the three branches of government, the judiciary has the primary

obligation, and privilege, to keep the constitution alive and relevant to

contemporary society. The courts are the constitution’s chief protectors, Neely v.

State, 63 Tenn. 174, 185 (1874), and are the chief expositors of the fundamental

principles it contains. Metropolitan Gov’t v. Tennessee State Bd. of Equalization,

817 S.W.2d 953, 955 (Tenn. 1991); State ex rel. Witcher v. Bilbrey, 878 S.W.2d

567, 573 (Tenn. Ct. App. 1994). This responsibility falls not just on the

Tennessee Supreme Court’s shoulders. All the courts are participants in the

ongoing constitutional dialogue, and thus lower courts, including intermediate

appellate courts,8 should not brush constitutional issues aside by rationalizing that

the supreme court will eventually get around to addressing them.

Constitutional adjudication should not be shaped by judicial ingenuity or

by individual judges’ personal preferences or agendas. In order to avoid

arbitrariness, judges must approach constitutional questions in a principled way

that takes into account the text of the constitution and the history, structure, and

underlying values in the entire document. Judges should also provide a full

explanation of their resolution of constitutional issues. Summers v. Thompson,

764 S.W.2d 182, 188 (Tenn. 1988) (Drowota, J., concurring).

The analysis of any constitutional issue should begin with the text of the

constitution itself. Hatcher v. Bell, 521 S.W.2d 799, 803 (Tenn. 1974); Prescott

v. Duncan, 126 Tenn. 106, 128, 148 S.W. 229, 234 (1912). It is, after all, the

constitution that the courts are expounding, McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 407, 4 L. Ed. 579, 602 (1819), not just the earlier decisions

interpreting the constitution. Graves v. New York ex rel. O’Keefe, 306 U.S. 466,

491-92, 59 S. Ct. 595, 604 (1939) (Frankfurter, J., concurring). The meaning and

significance of the text can be illuminated by considering the intentions of the

drafters, Hatcher v. Bell, 521 S.W.2d at 803, the practices and usages in existence

8

Prior to the enactment of the Appellate Court Efficiency Act in 1989, cases involving

constitutional issues where no factual or other issues existed bypassed the intermediate appellate

courts. The Tennessee Supreme Court no longer has exclusive jurisdiction over these types of

cases, and they are now routinely presented to the intermediate appellate courts. See Act of April

13, 1989, ch. 147, § 2, 1989 Tenn. Pub. Acts 213, 213 (codified at Tenn. Code Ann. § 16-4-

108(a)(2) (1994).

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when the constitution was ratified, Peay v. Nolan, 157 Tenn. 222, 230, 7 S.W.2d

815, 817 (1928), the common law, Williams v. Taxing District, 84 Tenn. 531, 535

(1886), and the contemporary construction of the text by the legislature and the

courts. State v. Wilson, 80 Tenn. 246, 265 (1883).

Prior judicial decisions play an important role in constitutional adjudication.

They provide stability and consistency in constitutional understanding, Monday

v. Millsaps, 197 Tenn. 295, 298, 271 S.W.2d 857, 858 (1954); State ex rel. Pitts

v. Nashville Baseball Club, 127 Tenn. 292, 303, 154 S.W. 1151, 1154 (1913), and

they also provide a safeguard against judges who might desire to import their own

ideologies into the constitution by claiming to have new insights into the drafters’

intentions. However, prior judicial decisions cannot trump the text of the

constitution. As Judge Kennedy noted over one hundred and fifty years ago,

I can never follow precedent, in the line of analogy,

when it leads to an infraction of the constitution. Hence

the necessity of a frequent recurrence to first principles.

If we follow precedent, and move on according to

analogy of cases, we shall be led from step to step until

the constitution itself will be lost amidst the subtleties

of the law.

Bank v. Cooper, 10 Tenn. (2 Yer.) 599, 622 (1831) (Kennedy, J., concurring). I

fear that by focusing only on State ex rel. Anglin v. Mitchell, the court has ignored

the first principles and has lost Tenn. Const. art. I, § 8 in the subtleties of the law.

III.

The Tennessee Supreme Court has never held that Tenn. Const. art. I, § 8

or the Due Process Clause of the Fourteenth Amendment requires that all judges

who preside over criminal adjudicatory proceedings involving adults must be

lawyers. While it has held that due process prevents the use of non-lawyer judges

in juvenile delinquency proceedings, it pointed out that “there is, perhaps some

warrant for a lay judge in the disposition of small offenses and due process is not

offended.” State ex rel. Anglin v. Mitchell, 596 S.W.2d at 788. This observation

is consistent with the United States Supreme Court’s conclusion four years earlier

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that the Due Process Clause of the Fourteenth Amendment did not require trying

a criminal defendant before a non-lawyer judge when the defendant had the right

to a de novo trial before a lawyer judge. North v. Russell, 427 U.S. 328, 339, 96

S. Ct. 2709, 2714 (1976).

Those who now desire to extend the holding of State ex rel. Anglin v.

Mitchell to adult criminal adjudicatory proceedings in city courts must confront

North v. Russell. Virtually every other state court addressing the issue has reached

a result consistent with the North v. Russell decision. See Palmer v. Superior

Court, 560 P.2d 797, 799 (Ariz. 1977); Shoemaker v. State, 375 A.2d 431, 439

(Del. 1977); Treiman v. State ex rel. Miner, 343 So.2d 819, 823 n.2 (Fla. 1977);

Walker v. State, 420 S.E.2d 17, 18-19 (Ga. Ct. App. 1992); People v. Sabri, 362

N.E.2d 739, 744 (Ill. App. Ct. 1977); Broussard v. Town of Delcambre, 458 So.

2d 1003, 1004 (La. Ct. App. 1984); Jenkins v. Canaan Mun. Court, 366 A.2d 208,

209 (N.H. 1976); People v. Charles F., 458 N.E.2d 801, 802 (N.Y. 1983);

Commonwealth v. Dessus, 396 A.2d 1254, 1260-61 (Pa. Super. Ct. 1978); State

v. Duncan, 238 S.E.2d 205, 209 (S.C. 1977); Masquelette v. State, 579 S.W.2d

478, 480 (Tex. Crim. App. 1979); Young v. Konz, 558 P.2d 791, 793-94 (Wash.

1977), aff’d en banc, 588 P.2d 1360, 1364-66 (1979); State ex rel. Collins v.

Bedell, 460 S.E.2d 636, 643-45 (W. Va. 1995); Canady v. State, 687 P.2d 897,

898-901 (Wyo. 1984).9

The United States Supreme Court is the final arbiter of federal

constitutional rights. Accordingly, persons desiring to find that due process

requires the use of lawyer judges in all adult criminal adjudicatory proceedings

must look to their state constitutions for greater due process protections than those

found in the Fourteenth Amendment. In this case, these expanded protections can

exist only if differences in the wording, history, or construction of Tenn. Const.

art. I, § 8 support the conclusion that its due process protections are more

9

The Vermont Supreme Court declined to follow North v. Russell because the state did

not afford criminal defendants the right to a de novo trial before a lawyer judge. State v.

Dunkerley, 365 A.2d 131, 132 (Vt. 1976). Prior to North v. Russell, the state courts had been

divided on the question. Compare Ditty v. Hampton, 490 S.W.2d 772, 775-76 (Ky. Ct. App.

1972); Tsiosdia v. Rainaldi, 547 P.2d 553, 555-56 (N.M. 1976) (approving the use of non-lawyer

judges) with Gordon v. Justice Court for Yuba Judicial Dist., 525 P.2d 72, 78-79 (Cal. 1974)

(disapproving the use of non-lawyer judges).

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expansive than those in the Fourteenth Amendment. The State ex rel. Anglin v.

Mitchell decision does not delineate clearly how Tenn. Const. art. I, § 8 differs

from the Fourteenth Amendment and, legal scholars have criticized it accordingly.

Frederic S. Le Clercq, The Constitutional Policy That Judges Be Learned in the

Law, 47 Tenn. L. Rev. 689, 729-32 (1980).

Many of our most fundamental rights and liberties receive protection from

both the Tennessee and federal constitutions. The Tennessee Supreme Court has

often noted that the United States Constitution provides a basic level of protection

and that state constitutions may provide greater protection or may even protect

rights that are not protected by their federal counterpart. Burford v. State, 845

S.W.2d 204, 207 (Tenn. 1992); Davis v. Davis, 842 S.W.2d 588, 600 (Tenn.

1992); State v. Middlebrooks, 840 S.W.2d 317, 338 (Tenn. 1992). The court has

even found broader protections in the Constitution of Tennessee in a number of

circumstances. See, e.g., State v. Marshall, 859 S.W.2d 289, 290-91, 294-95

(Tenn. 1993) (holding that the state constitution provides greater protection for

free comment than the First and Fourteenth Amendments); State v. Black, 815

S.W.2d 166, 189, 192-193 (Tenn. 1991) (holding that the state constitution

provides different standards for determining what constitutes cruel and unusual

punishment); State v. Jacumin, 778 S.W.2d 430, 435-36 (Tenn. 1989) (holding

that Tenn. Const. art. I, § 7 requires different standards for obtaining a search

warrant than does the Fourth Amendment); Miller v. State, 584 S.W.2d 758, 760

(Tenn. 1979) (holding that the ex post facto clause in Tenn. Const. art. I, § 11

provides greater protection than the ex post facto clause in U. S. Const. art. I, § 10,

cl. 1).

The decisions construing the “law of the land” clause in Tenn. Const. art.

I, § 8 follow a similar path. Even though the Tennessee Supreme Court has noted

that it could find expanded due process protections in the state constitution, State

v. Barnett, 909 S.W.2d 423, 430 n.6 (Tenn. 1995); Burford v. State, 845 S.W.2d

at 207; Doe v. Norris, 751 S.W.2d 834, 838 (Tenn. 1988), the court has

consistently equated the due process protections in Tenn. Const. art. I, § 8 with the

Due Process Clauses in the Fifth and Fourteenth Amendments. Riggs v. Burson,

941 S.W.2d 44, 51 (Tenn. 1997); Davis v. State, 912 S.W.2d 689, 696 (Tenn.

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1995); Nale v. Robertson, 871 S.W.2d 674, 680 (Tenn. 1994); State ex rel. Anglin

v. Mitchell, 596 S.W.2d at 786; Dearborne v. State, 575 S.W.2d 259, 262 (Tenn.

1978); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 431, 53 S.W. 955, 957

(1899).

Tenn. Const. art. I, § 8 and the Due Process Clause of the Fourteenth

Amendment share similar values and spring from common constitutional milieus.

Neither the court nor the State has pointed to differences in the wording, history,

or construction of Tenn. Const. art. I, § 8 that require construing it differently

from the United States Supreme Court’s construction of the Fourteenth

Amendment in North v. Russell. Accordingly, since the rule of law followed by

the state and federal courts should, whenever possible, be consistent, State v.

Jones, 598 S.W.2d 208, 219 (Tenn. 1980); Miller v. State, 584 S.W.2d at 763

(Harbison, J., dissenting), I would hold that Tenn. Const. art. I, § 8 does not

require the use of lawyer judges in municipal courts exercising concurrent

jurisdiction with the general sessions courts in cases involving the violation of

state law within the territorial limits of the municipality.

Judicial proceedings have changed markedly during our two hundred years

of statehood. Common-law pleadings have given way to new procedures; some

proceedings are substantively more complex; and there is no longer a shortage of

lawyers similar to the one existing when Tennessee became a state.10 Thus, public

convenience and sound judicial administration may very well favor providing for

judges who are trained lawyers. However, the courts’ response to this issue must

be tempered by the doctrine of the separation of powers in Tenn. Const. art. II, §§

1 & 2 and by the recognition that the Constitution of Tennessee does not require

judges to be lawyers.11

10

Charles Warren, A History of the American Bar 3 (1911); Frederic S. Le Clercq, The

Constitutional Policy That Judges Be Learned in the Law, 47 Tenn. L. Rev. at 701-02.

11

Professor’s Le Clercq’s assertion that the reception clause of Tenn. Const. of 1796, art.

X, § 2 incorporates North Carolina’s requirement that judges be “law trained” has not been

judicially endorsed. See Frederic S. Le Clercq, The Constitutional Policy That Judges Be

Learned in the Law, 47 Tenn. L. Rev. at 712-13.

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The General Assembly has substantial authority over the organization of the

judicial department. Summers v. Thompson, 764 S.W.2d 182, 193 (Tenn. 1988)

(Drowota, J., concurring). It may prescribe qualifications for judges in addition

to those contained in Tenn. Const. art. VI, 4, and, in fact, the General Assembly

has enacted legislation requiring all state judges of courts of record to be licensed

lawyers. Tenn. Code Ann. § 17-1-106(a) (1994). While there are no similar

general requirements for general sessions or municipal court judges,12 the General

Assembly has enacted statutes requiring certain municipal court judges to be

licensed lawyers.13 The question of whether the General Assembly has exercised

its power to prescribe the qualifications of municipal court judges in a responsible,

even-handed manner is not before us in this case.14 Accordingly, the question of

the qualification of Tennessee’s municipal court judges must be resolved by the

General Assembly, not by the courts.

________________________________

WILLIAM C. KOCH, JR., JUDGE

12

Crawford v. Gilpatrick, 646 S.W.2d 433,435 (Tenn. 1983) (stating that there are no

general statutory qualifications for general sessions court judges); Frederic S. Le Clercq, The

Tennessee Court System, 8 Mem. St. U.L. Rev. at 436.

13

See Tenn. Code Ann. § 6-21-501(b)(3) (Supp. 1996) (requiring five cities with a city

manager-commission form of charter to appoint a city judge who is an “attorney at law entitled

to practice in the courts of the state”); Tenn. Code Ann. § 6-21-501(c)(1) (Supp. 1996) (requiring

elected city judges in Hamilton and Knox Counties to be a “an attorney authorized to practice

in the courts of the state”); and Tenn. Code Ann. § 6-33-102(a) (1992) (requiring city judges in

cities under a modified city manager-council charter to be a “person licensed to practice law in

the state of Tennessee”). Accordingly, the trial court’s finding and the parties’ stipulation that

municipal court judges are not required by statute to be authorized to practice law is only

partially correct.

14

The State has not asserted in this case that the present statutory qualifications for

municipal court judges or general sessions judges is contrary to the equal protection or class

legislation provisions in Tenn. Const. art. I, § 8 or Tenn. Const. art. XI, § 8.

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