# Motion — Summers v. Thompson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0839%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion - **Published:** January 1, 1988 - **Citation:** 488 U.S. 977 ## Text 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 Te a . y , Pores nes ut BANE SAS Sc huad baa. BEL ‘ i ' . “3 é ° , . Py at - 4 mM ; 5 , | 173 | | : | : M a ¥ y ‘3 i f ° ; lc Fes , i : ” . = 7 ° —_ ay Nt 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 a ee bin, Mowat 4¥ OP so _ . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0839%3A2. Public record. Not legal advice.