|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: November 6, 2006
RE: Appointment of Temporary Judge
You have the following questions:
1. Does the city judge or the city’s governing body appoint a judge to serve while the city judge is temporarily absent from the city?
2. Are the qualifications of the temporary city judge required to be the same qualifications required for the permanent popularly-elected city judge?
As I understand the facts you related to me, when the city judge is out of town on business, he appoints a partner in his private law practice to serve as the city judge.
The answer to question 1 is that the city’s governing body makes the appointment.
The answer to question 2 is that the temporary city judge must have the same qualifications as the permanent popularly-elected city judge.
Analysis of Question 1
Your city judge is popularly-elected under § 19 of the Municipal Charter.
Under § 19(a)(II):
The Municipal Judge shall be a resident of the City, Tennessee, or within a three-mile radius of the City, for one year and shall continuously reside within the City or within a three (3) mile area of the City, during his or her term of office. The Judge shall have also been a resident of the State of Tennessee for five years before his or her election, be at least thirty (30) years of age, and licensed to practice law in the State of Tennessee.
Nothing in the city charter prescribes how a temporary judge is appointed. The judicial interchange statute contained in Tennessee Code Annotated, title 17, chapter 2, does not apply to municipal judges.
The Tennessee General Assembly has authority to pass general laws that govern “corporation” [municipal] courts. [See Doyle v. Metro. Government of Nashville and Davidson County, 471 S.W.2d 371 (Tenn. 1971)]. Those general laws would supercede any conflicting provision of a municipal charter.
Tennessee Code Annotated, § 16-18-101 et seq., authorizes municipalities to provide by ordinance for popularly-elected city judges, which can be in addition to, or an alternative to, the popularly-elected city judge provided for by the city’s charter. But that entire statutory scheme applies to popularly-elected city judges whether they are elected under the city’s charter, or under an ordinance adopted by the city, and whether the city judge exercises both concurrent jurisdiction and ordinance violation jurisdiction, or only ordinance violation jurisdiction.
With respect to temporary appointments, Tennessee Code Annotated, § 16-18- 204 provides that, “...In the temporary absence or inability of the city judge, the governing body shall appoint a qualified person to serve until the judge’s return.”
Analysis of Question 2
Under Tennessee Code Annotated, § 16-18-104, the city’s governing body must appoint a “qualified person” to serve until the return of the city judge. The only thing the phrase “qualified person” could mean in that context is a person who has the same qualifications as the popularly-elected city judge. Tennessee Code Annotated, § 16-18- 202 provides that, “Any 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. Article VI, § 4 of the Tennessee Constitution provides that:
...Every Judge of such Courts shall be thirty years of age, and shall before his election, have been a resident of the State for five years and of the circuit or district one year.
Under §19 of the City Charter, the permanent popularly-elected city judge meets those qualifications, except perhaps with one exception: the city judge can reside within a radius
of three miles of the city. I doubt that qualification meets the requirement of Tennessee Code Annotated, § 16-180-204 that the popularly-elected city judge, and the temporary city judge, be a resident of the circuit or district one year before his election [or appointment].
There is no doubt but that the City Charter can be amended to provide that the temporary city judge meet the same qualification as the permanent popularly-elected city judge, and that the city’s governing body make the appointment. But because the amendment would be required to be consistent with Tennessee Code Annotated, § 16- 18-101 et seq., it would probably be superfluous. But with respect to the qualification in § 19(a)(II) of the city charter that the city judge can reside within a three mile radius of the city, the city should consider amended that qualification to bring into conformity with Article VI, § 4 of the Tennessee Constitution.