|Legal Opinion: |
Text of Document: April 5, 2005
Re: Councilmember acting as city judge, in absence of judge
Dear City Attorney,
I apologize for the difficulty you have had in reaching me this past several days. My office hours have been irregular. Based on your message, it is my understanding that the City has a councilmember who has in the past served as city judge when the judge is unavailable. You have asked if this scenario is legal currently, considering the Municipal Court Reform Act of 2004.
The Municipal Court Reform Act of 2004 includes the following provision:
Notwithstanding any provision of the law to the contrary, a judge of a municipal court may not concurrently hold any other office or employment with the municipality. The provisions of this section do not apply to any municipal official or employee who, on the effective date of this act [March 1, 2005] concurrently holds office as judge of the municipal court; provided, however, if such employee or official either discontinues service as a municipal official or employee or discontinues service as judge of the municipal court, then the exemption granted by this sentence no longer applies. T.C.A. ' 16-18-307.
As the councilmember acted as special judge during the judge's unavailability before March 1, 2005, you have asked if the exemption provided in this section of the law would apply, so that the arrangement may continue. In my opinion, the answer is "no," based on the fact that a special judge, or a person selected to serve in the absence of the municipal judge, does not hold the office of judge. The exemption applies to those persons who hold the office of municipal judge, not to persons who temporarily assume the office when the judge is unavailable. It is my opinion that the councilmember may not serve as temporary, or special judge due to the prohibition contained in the first sentence quoted above.
I hope this information is helpful. Thank you for consulting with MTAS.
Melissa A. Ashburn