Motion — Summers v. Thompson

No. 88-665 iS siieaGi i

—GEERK

In The

Supreme Court of the United States

October Term, 1988

ra’

Vv

JERRY H. SUMMERS,

Appellant,

VS.

ROBERT L. THOMPSON, ez al.,

Appellees.

Ly

Vv

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF TENNESSEE

fa’

Vv

MOTION OF APPELLEE, CHARLES W. BURSON,

ATTORNEY GENERAL AND REPORTER OF THE

STATE OF TENNESSE, TO DISMISS OR AFFIRM

ft).

Vv

CuHartes W. Burson

Attorney General & Reporter

State of Tennessee

[Counsel of Record]

MicHaEt W. CaTALANo

Deputy Attorney General

State of Tennessee

Anpy D. Bennett

Deputy Attorney General

State of Tennessee

Kevin StTEILInG

Assistant Attorney General

State of Tennessee

450 James Robertson Parkway

Nashville, Tennessee 37219

Counsel for Appellees

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342- 2831

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QUESTIONS PRESENTED

1. Whether Tenn. Code Ann. ${ 6-21-501 and 16-18-

102 which provide for at-will termination of a municipal

judge, who has jurisdiction to impose fines up to $50.00

and incarcerate for terms of up to 90 days, by the govern-

ing body of that municipality violates the doctrine of

separation of powers contained in Article III, $1 of the

United States Constitution?

2. Whether the doctrine of separation of powers con-

tained in Article III, § 1 of the United States Constitution

is applicable to the states through the due process and

equal protection clauses of the Fifth and [ourteenth

Amendments to the United States Constitution?

ii

PARTIES TO THE PROCEEDINGS BELOW

The appellant in this action is Jerry H. Summers.

The appellees in this action are: Mayor Robert L. Thomp-

son, Commissioners James Ables, Don Gentry, Bryson

Johnson, and Jimmy Williamson, in their capacities as

Commissioners of the City of Soddy-Daisy, Tennessee,

Robert Eckard, in his capacity as Police Chief of Soddy-

Daisy, Tennessee, the City of Soddy-Daisy, Tennessee, and

Charles W. Burson, Attorney General and Reporter for

the States of Tennessee.!

i Pursuant to Rule 40.3 of the Supreme Court Rules, Charles

W. Burson has been substituted for W. J. Michael Cody as the

Attorney General and Reporter for the State of Tennessee as a

result of Mr. Cody’s resignation and Mr. Burson’s appointment

effective October 1, 1988.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDINGS BELOW .....

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

ARGUMENT:

I. THE DECISION OF THE SUPREME COURT

IT.

CONCLUSION

OF TENNESSEE RESTS ON NON-CONSTI-

TUTIONAL GROUNDS; THEREFORE, THIS

COURT SHOULD DISMISS THIS APPEAL .

THE APPLICABILITY OF THE DOCTRINE

OF SEPARATION OF POWERS UNDER

ARTICLE IIT SECTION I OF THE UNITED

STATES CONSTITUTION TO THE MU-

NICIPAL COURT OF SODDY-DAISY, TEN-

NESSEE DOES NOT PRESENT A SUB-

STANTIAL FEDERAL QUESTION OVER

WHICH THIS COURT SHOULD EXERCISE

ITS JURISDICTION

i

ii

iv

TABLE OF AUTHORITIES

Page

Cases Crrep:

Cantwell v. Connecticut, 310 U.S. 296 (1940) on

Dreyer v. Illinois, 187 U.S. 71 (1902) 5, 6

State ex rel. Haywood v. Superintendent, Davidson

County Workhouse, 195 Tenn. 265, 259 S.W.2d

159 (1953) 3

Hughes v. Superior Court of California in and

for the County of Contra Costa, 339 U.S. 460 (1950) 6

Mayor of the City of Philadelphia v. Educational

Equity League, 415 U.S. 605 (1974) 6

Michigan v. Long, 463 U.S. 1032 (1983)

Minnesota v. Cloverleaf Creamery Co., 449 U.S.

456 (1981)

Prentiss v. Atlantic Coastline Co., 211 U.S. 210 (1908)

Ridgeway v. Ridgeway, 454 U.S. 46 (1981)

Rose v. Hodges, 423 U.S. 19 (1979)

Sweazy v. State of New Hampshire, 354 U.S. 234

(1957) 6

awn mH

STATUTES:

FEDERAL:

Article ITI, § 1, United States Constitution 2,5

Fifth Amendment, United States Constitution 2,6

Fourteenth Amendment, United States Constitution 2, 6,7

STATE:

Tenn. Code Ann. § 6-18-101

Tenn. Code Ann. § 6-21-501

TABLE OF AUTHORITIES—Continued

Page

Tenn. Code Ann. § 6-21-501(b) 2, 3,4

Tenn. Code Ann. § 16-18-101 (1987 Supp.) 3, 4

Tenn. Code Ann. § 16-18-102 2

Article I, § 8, Tennessee Constitution 2

Article IT, § 1, Tennessee Constitution 2

Article II, § 2, Tennessee Constitution 2

MiscELLANEOUS:

Rule 16.1, Supreme Court Rules 1

Justice Brennan, State Constitutions and the Pro-

tection of Individual Rights, 90 Harv. Law Rev.

489 (1977) 4

No. 88-665

ry

Vv

In The

Supreme Court of the United States

October Term, 1988

ty.

JERRY H. SUMMERS,

Appellant,

vs.

ROBERT L. THOMPSON, et al.,

Appellees.

ray

—

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF TENNESSEE

4

—

MOTION OF APPELLEE, CHARLES W. BURSON,

ATTORNEY GENERAL AND REPORTER OF THE

STATE OF TENNESSE, TO DISMISS OR AFFIRM

EE

_

Pursuant to Rule 16.1, the appellee, Charles W. Bur-

son, Attorney General and Reporter for the State of Ten-

nessee (appellee) moves to dismiss or affirm the appeal

filed on behalf of Jerry H. Summers (appellant). This

motion is based upon the fact that the decision of the Su-

preme Court of Tennessee rests upon independent and

adequate state grounds and that the questions on which

the decision of this case depends are so unsubstantial as

to not need further argument.

——— -O-——

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional provisions involved in this appeal

are Article II], § 1 of the United States Constitution, the

Fifth and Fourteenth Amendments of the United States

Constitution. The statutory provisions involved are

Tenn. Code Ann. §§ 6-21-501, 6-18-101, and 6-18-102. The

constitutional provisions are set out in appellant’s Juris-

dictional Statement at page 2; whereas, the statutory pro-

visions involved are set out in appellant’s Jurisdictional

Statement at pages A-65 through A-67.

©

ARGUMENT

I. THE DECISION OF THE SUPREME COURT

OF TENNESSEE RESTS ON NON-CONSTI-

TUTIONAL GROUNDS; THEREFORE, THIS

COURT SHOULD DISMISS THIS APPEAL.

rom the inception of this litigation, the appellant

has contended that Teun. Code Ann. § 6-21-501, which pro-

vides that the municipal judge of Soddy-Daisy is to ‘‘ serve

at the will of the board of commissioners’’, is violative of

the doctrine of separation of powers under Article ILL, §1

of the United States Constitution and Article II, §$1 and 2

of the Tennessee Constitution and the due process provi-

sions of the Fifth and Fourteenth Amendments of the

United States Constitution and Article I, §8 of the Ten-

nessee Constitution. See Appellant’s Jurisdictional State-

ment, page A-23, § 24. However, the Tennessee Supreme

Court expressly limited its decision to one of statutory

3

construction and did not address either the state or fed-

eral constitutional issues raised by the appellant. In

particular, the Tennessee court stated the following:

The majority of this Court does not find it neces-

sary to address the constitutional issue presented by

this case because the issue may be resolved by a proper

construction of the statutes involved. Moreover, the

holding of this case is expressly limited to those city

courts that are not vested with concurrent jurisdie-

tion with a general sessions court which is an inferior

court, under T.C.A, § 6-21-501(b) or T.C.A, § 16-18-101

(Supp. 1987). The jurisdiction of these city courts is

wholly limited to traffie violations or violations of

city ordinances, as the judges of these courts have no

authority to impose fines exceeding $50.00 or to im-

pose extensive terms of imprisonment and, as a prac-

tical matter are essentially administrative judges.

Such a judge is not cloaked with the powers of a judge

of an inferior court within the meaning of Article VI,

§1. See State ex rel. Haywood v. Superintendent,

Davidson County Workhouse, 195 Tenn. 265, 270-71,

259 S.W.2d 159, 161 (1953).

Appellant’s Jurisdictional Statement, page A-61.

This Court has indicated in the past that it has no

jurisdiction to entertain an appeal where the decision of

a state court is based upon independent and adequate state

grounds. See Michigan v. Long, 463 U.S. 1082 (1983);

Ridgeway v. Ridgeway, 454 U.S. 46, 54 (1981). The ap-

pellant argued before the courts, below, that the municipal

court of Soddy-Daisy, Tennessee was vested with concur-

rent jurisdiction of a general sessions court in Tennessee,

which is an inferior court under Article VI of the Ten-

nessee Constitution. Based upon that argument, the ap-

pellant concluded that at-will termination of the municipal

judge by the board of commissioners would be violative

of the doctrine of separation of powers under both the

Tennessee and United States Constitutions since the munic-

ipal court is part of the judicial branch of government in

Tennessee.

However, the Supreme Court of Tennessee in its de-

cision held that the municipal court of Soddy-Daisy, Ten-

nessee is not vested with concurrent jurisdiction with a

general sessions court in Tennessee under Tenn. Code Ann.

§§-6-21-501(b), 16-18-101. This holding pretermits the ap-

pellant’s federal constitutional argument since the Su-

preme Court of Tennessee concluded that judges of courts

who cannot impose fines to exceed $50.00 are as a practical

matter administrative judges and are not cloaked with the

powers of a judge of an inferior court within the meaning

of Article VI, §1 of the Tennessee Constitution. Such a de-

termination provides an independent and adequate state

ground upon which the decision of the Supreme Court of

Tennessee rests; therefore, this Court should dismiss this

appeal.”

¢ As Justice Brennan has indicated, judgments based upon

an independent and adequate state ground “not only cannot be

overturned by, (but) indeed are not even reviewable by the

Supreme Court of the United States.” Justice Brennan, State

Constitutions and the Protection of Individual Rights, 90 Harv.

Law Rev. 489, 501 (1977).

II. THE APPLICABILITY OF THE DOCTRINE

OF SEPARATION OF POWERS UNDER AR-

TICLE III, SECTION I OF THE UNITED

STATES CONSTITUTION TO THE MUNICI-

PAL COURT OF SODDY-DAISY, TENNESSEE

DOES NOT PRESENT A SUBSTANTIAL FED-

ERAL QUESTION OVER WHICH THIS

COURT SHOULD EXERCISE ITS JURISDIC-

TION.

This Court in the case of Dreyer v. Illinois, 187 U.S.

71 (1902), stated the following with regard to the applica-

bility of the doctrine of separation of powers under Article

ITT, § 1 of the United States Constitution to State Courts:

It is only necessary now to say that, even if the

statute in question were obnoxious to the objection

now urged by plaintiff in error, it would not follow

that this Court would review a judgment of the high-

est Court of the State, which expressly or it by neces-

sary implication sustained it as constitutional. A

local statute investing a collection of persons not of

the judicial department, with the powers that are

judicial, and authorizing them to exercise the pardon-

ing power which alone belongs to the Governor of the

State, presents no question under the Constitution of

the United States. The right to the due process of

law prescribed by the Fourteenth Amendment would

not be infringed by a local statute of that character.

Whether the legislative, executive or judicial powers

of a State shall be kept all together distinet and sep-

arate, or whether persons or collections of persons

belonging to one department may, in respect to some

matters, exert powers, which strictly speaking, per-

tain to another department of government, is for the

determination of the State.

Id. at 83-84.

Subsequent to the Dreyer decision, this Court has

again and again held that the Fourteenth Amendment

leaves the States free to distribute the powers of govern-

ment as they will between their legislative and judicial

branches. See Hughes v. Superior Court of California

in and for the County of Contra Costa, 339 U.S. 460 (1950) ;

Prentiss v. Atlantic Coastline Co., 211 U.S. 210 (1908) ;

Rose v. Hodges, 423 U.S. 19 (1979); Sweazy v. State of

New Hampshire, 354 U.S. 234 (1957); Mayor of the City

of Philadelphia v. Educational Equity League, 415 US.

605 (1974); Minnesota v. Cloverleaf Creamery Co., 449

U.S. 456 (1981). Thus, it is a well-established principle by

this Court that the doctrine of separation of powers under

the United States Constitution is not applicable to the

states through the Fourteenth Amendment.

The appellant’s only argument for this Court to grant

jurisdiction in this case is that the Dreyer decision should

be overruled because since the time of the Dreyer decision

in 1902, “a number of fundamental constitutional rights

have been applied to the States through the Fifth and

Fourteenth Amendments. ... [and that] it is essential

that the rights of the individual be protected by the ap-

plication of federal separation of powers doctrine to the

States as well.” Appellant’s Jurisdictional Statement,

pages 4-5. Beyond failing to provide any reasons why this

issue may be one of significant national importance justi-

fying this Court’s exercise of its jurisdiction, the appel-

lant’s analysis is fatally flawed.

This Court has on a number of occasions applied in-

dividual rights secured under the First Amendment to the

States through the Fourteenth Amendment. See, e.g.,

~]

Cantwell v. Connecticut, 310 U.S. 296 at 303 (1940). How-

ever, the appellant in this case seeks to apply Article ITI,

§ 1 of the United States Constitution, whi h concerns the

structure of the federal government not individual liber-

ties, to the States. Such a proposition is wholly absurd.

The doctrine of separation of powers has nothing to do

with individual liberties secured under the First Amend-

ment; rather, it concerns the structure and distribution of

power among the three branches of the federal government.

As this Court has indicated, States are free to structure

their own governments in whatever manner they deem fit.

The purpose of applying the First Amendment to the

States through the Fourteenth Amendment is to ensure

that the fundamental rights of all citizens are protected.

On the other hand, how a state distributes its powers be-

tween its branches of government is a decision left to the

State not the federal government. To provide otherwise

would constitute an unwarranted intrusion by the federal

government into the structure of state governments and

effectively emasculate the well-established constitutional

doctrine of federalism.

>)

CONCLUSION

Based upon the foregoing authorities and analyses, the

appellee respectfully requests this Court to dismiss or

affirm the appeal in this case.

Respectfully submitted,

CuarLes W. Burson

Attorney General & Reporter

State of Tennessee

[Counsel of Record]

MicHakEt W. CaTaLano

Deputy Attorney General

State of Tennessee

Anpy D. Bennett

Deputy Attorney General

State of Tennessee

Kevin StTEmLine

Assistant Attorney General

State of Tennessee

450 James Robertson Parkway

Nashville, Tennessee 37219

Counsel for Appellees

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