|Legal Opinion: |
Text of Document: February 21, 2001
Re: Transportation of Inmates
You have asked MTAS to review a Memorandum written on the current controversy between your County Sheriff and the Town on transporting prisoners to and from Municipal Court, which in your Town, is a court of concurrent jurisdiction. See Article IX, Section 9.01 and Section 9,02 (b), Charter, and Section 3-203, Code of Ordinances. I reviewed case law developments since the Barrett case was issued, but could not find any authority that would allow the municipal court judge to order the county sheriff to transport prisoners. I respectfully and regretfully disagree with the memo’s conclusion that the duty to transport prisoners extends to the municipal court. It appears that Tenn. Op. Atty. Gen. 00-073 correctly states the law.
The Attorney General has pointed out that Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992) failed to consider that the appointed judge in the case was acting under de facto concurrent jurisdiction, and that his acts were valid until such time as he was removed from office. Just because the judge lacked the qualifications for the office did not affect the court’s jurisdiction over the criminal matter. Tenn. Op. Atty. Gen. 95-20. The “official acts are binding on third persons and the public until he [the judge] is ousted from office. “[citations omitted] The Attorney General opined that the Barrett holding was “plainly inconsistent” with other authorities. Id., f.n.3. The Attorney General mentioned a case pending at the time, State v. Bankston, which indeed addressed this very problem.
When State v. Bankston, 908 S.W.2d 194 (Tenn. 1995) was issued that same year, the holding reflected the Attorney General’s comment. The Supreme Court stated
Town of South Carthage does not automatically nullify every conviction rendered by a municipal judge not elected in accordance with the Tennessee Constitution before that decision was released. Rather the State argues that a conviction should only be set aside if the defendant can make a showing that the judge’s unconstitutional status actually affected the integrity of the proceedings leading to the convictions. Bankston, at 196. . . .’Disastrous’ consequences would follow if we were to automatically invalidate all acts of municipal judges not elected in accordance with the Tennessee Constitution: hundreds of otherwise valid convictions could potentially be nullified; and those defendants would have to be retried. This would put at risk settled rights, entail a substantial expense to the taxpayers of this state and place an additional load upon our already overburdened judicial system. We cannot countenance such an extreme result, and therefore old that since the defendant did not challenge the jurisdiction of the municipal court either in that court or on direct appeal, Town of South Carthage does not apply. Bankston, at 198.
Other than addressing collateral attack of such courts’ decisions, Bankston did not state that a municipal court was also a “state court”. Tenn. Op. Atty. Gen. 95-20 also opines that a de facto judge of a state court could impose the sanction of contempt under § 29-9-102, Tennessee Code Annotated for “the willful disobedience or resistance of any officer of the said courts, party, juror, witness, or any other person, to any lawful write, process, order, rule, decree, or command of said courts. Opinion 95-20, at 8. As the memo pointed out, the Sheriff is one of five constitutional officers described in Article VII, Section 1, Tennessee Constitution. So, arguably, a judge, even a de facto judge, who is exercising concurrent jurisdiction, could sanction a Sheriff who disobeys the mandates of the court. I believe, however, this power has not been granted to a municipal judge, even when he (she) is exercising concurrent jurisdiction.
Courthouse security is discussed in Tenn. Op. Atty. Gen. 97-117. The opinion deals with issues arising out of Metro Davidson County, so is not directly on point to determining the issue in a non-metro form of city government. As in your memorandum, this opinion points out that courthouse security as well as “keeping charge and custody of prisoners.” is the duty of the sheriff. (Id., p. 2) In the absence of a charter provision to the contrary, “Under general law, the sheriff would be responsible for any security requirements relating to the handling of any prisoners who need to be brought to court.” (Id., p.4) The new Courtroom Security Act of 1995 is also discussed in this opinion. See § 16-2-505(d), Tennessee Code Annotated. Each county is supposed to have a “court security committee” in place, composed of the county executive, the sheriff, the district attorney general, the presiding judge of the judicial district, and a court clerk, “to determine the security needs of the courtrooms in the county in order to provide safe and secure facilities.” If it hasn’t been done already, I suggest that this matter be brought before the County’s committee for a possible solution to the dispute.
Opinion 97-117 also addresses the doctrine of inherent judicial powers.
Tennessee law has consistently recognized that judges have inherent powers included within the scope of a court’s jurisdiction irrespective of specific grant by the constitution or legislation. Inherent power is that power essential to the existence, dignity and functions of a court from the very fact that it is a court. Anderson County Quarterly Court v. Judges of the 28th Judicial Circuit, 579 S.W.2d 875, 878 (Tenn. App. 1978). These powers derive from the separation of powers among co-equal branches, and consist of “all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful action effective. Id. at 879. . . .Because the invocation of inherent powers can interfere with the legitimate constitutional perogatives of the other branches of government, the reviewing courts are sensitive to the encroachment on county legislative bodies over such matters. In Tennessee, the use of inherent powers is limited by the requirement that the court asserting the power must establish reasonable necessity by clear, cogent, and convincing proof. Id. at 881. (Emphasis in original).
The Attorney General of Tennessee has further opined that
. . .a judge has the inherent authority to order the sheriff to provide additional security in the course of a specific proceeding if a reasonable necessity for such action is demonstrated by clear, cogent, and convincing proof. The judge cannot, however, order the sheriff to assign specific personnel to the courtroom. Tenn. Op. Atty. Gen. 92-55.
This opinion was issued in the context of a post-conviction proceeding and could be construed to apply only where there is extraordinary danger presented by the particular case and its participants. This opinion is directed to state court judges, and municipal judges don’t fall into that category. The Attorney General also admits that the inherent judicial power doctrine
has not been tested in Tennessee as support for any judicial orders requiring substantial, expensive, or permanent changes in facilities, personnel, procedures or equipment based upon a court’s general concern for sufficient security unsubstantiated by the concrete exigencies of a particular proceeding. Any such orders would be subject to challenge as violative of the separation of powers doctrine, and whether an orders would withstand challenge would depend on the strength of the issuing court’s proof of compelling facts and circumstances to justify the security measures ordered. Tenn. Op. Atty. Gen. 97-117, p. 8.
I have assumed that the situation in the Town court is that of routine transportation of prisoners to and from court and does not involve a particular case or set of circumstances that might require additional security. Since I could find no authority either specifically giving a municipal judge the power to order a Sheriff to perform certain acts, and because the municipal judge is not considered a state court judge who might be able to exercise inherent power, I conclude there is no mechanism for a municipal judge to order the county sheriff to transport prisoners to and from the municipal court.
Please call me if you have other questions.
Donna M. Leydorf