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Municipal Technical Advisory Service (MTAS)

Original Author: Hemsley, Sid
Date of Material: 05/06/1993

City attorney

Can the City Attorney Also Serve as the City Judge?

Reviewed Date: 07/30/2021
MTAS was asked whether the city attorney can also serve as the city judge.

May 6, 1993

Your question is, can the city attorney also serve as the city judge. In my opinion, the answer is no, for two reasons: the charter prohibits it, and they are incompatible offices.

The Charter Prohibits It

Art. III, § 3.01(d) provides that, "except as provided in Subsection 3.05(a), the city judge shall not hold any other city office or position of employment, nor shall this office be abolished or its powers diminished." The relevant part of §3.05(a) provides that:

The mayor or other person designated by the council shall serve in the absence or incapacity of the city judge. At any time the office of city judge is left unfilled by the council the mayor shall serve as city judge.

Those provisions plainly say and mean that the city judge cannot hold any office or employment with the city, unless the city judge is the mayor serving in the absence or incapacity of the city judge or if the office of city judge is unfilled.

Incompatible Offices

Even if the city charter didn't prohibit the city judge from serving as city attorney he could not do so. While there are a number of cities in Tennessee in which the city attorney is the city judge, sooner or later one of those arrangements will be successfully challenged because the offices are incompatible.

Tennessee has long recognized the common law doctrine of incompatible offices. The Tennessee Supreme Court in State ex rel v. Thompson, 193 Tenn. 395 (1952) declared that the offices of city councilperson and city manager were incompatible. After looking at the two offices under the city's charter, the Court said:

Of course, it was not the intention of the Legislature to permit the City Manager to be one of the five members of the Board which determines whether or not he shall be discharged for cause, or without cause after twelve months, or, as a member of the Board, to accept or reject or modify his own recommendations made as city manager, or, as a member of the Board, to direct and supervise himself as City Manager in the administration of the City. This statement of the situation seems conclusive of the fact that the two offices are completely incompatible.

It's difficult to generalize the comparison between the functions of city commissioner and city manager to the functions of city judge and city attorney. However, that language from Thompson stands for the proposition that the Court will look at the statutory functions of the offices in question and determine whether they can be reconciled.

As far as I can determine there are only two cases in the United States directly on the issue of whether the offices of city judge and city attorney are incompatible: State ex rel. Stark v. Hines, 194 Wis. 34, 215 N.W. 447 (1927), and People v. Rapsey, 161 Cal.2d 636, 107 P.2d 388 (1940). In Hines, the Wisconsin Supreme Court without elaboration simply declared that a person who held both the offices of city judge and city attorney:

...attempted to hold two incompatible offices contrary to public policy. He was at liberty to resign his office of municipal judge and accept the office of city attorney. He did not resign but under the common-law rule, he created a vacancy in the office of judge by accepting the incompatible office of city attorney.

However, Rapsey, citing Hines for support, contains a compelling argument why the office of city attorney and city judge are incompatible offices. In that case, a city judge appointed by the city council in 1924 was also appointed by the city council in 1937 to the office of city attorney. Various California statutes gave a number of duties to the city attorney; however, none of them required the city attorney to prosecute municipal cases in city court. In fact, the California Municipal Corporations Act provided that it was the duty of the chief of police "to prosecute before the city court, all breaches or violations of or noncompliance with any ordinance which shall come to his knowledge."

In response to the challenge that the offices of city judge and city attorney were incompatible, The city judge/city attorney argued that the city attorney of a city of the sixth class was not a public officer; that even if he were, the duties imposed by upon him by statute did not conflict with his duties as city judge, and that the offices were not incompatible. He apparently relied principally on the statute that gave the chief of police the duty to prosecute municipal violation cases.

The Supreme Court of California rejected his arguments. With respect to his argument that the city attorney was not an officer the Court pointed out that:

While it is true that the compensation and term of office of a city attorney of a city of the sixth class is fixed by the city council of such city, it is equally true that the duties of such attorney as prescribed by statute pertain to the public and are continuing and permanent, and we think it is clear that the office of city attorney of a city of the sixth class falls well within the definition of the term "public officer"... as defined by this court...It seems to be reasonably well settled that where the legislature creates the position, prescribes the duties and fixes the compensation and those duties pertain to the public, and are continuing and permanent, not occasional or temporary, such position or employment is an office, and he who occupies it is an officer.

Turning to the city judge/city attorney's argument that even if the city attorney was an officer the offices of city judge and city attorney weren't incompatible because the police chief had the duty to prosecute city cases in city court, the Court declared:

We are not impressed with this contention, as we think it places an altogether too narrow construction upon the statutes prescribing the duties of the city attorney. It is our view that this provision does not deprive a city attorney of a city of the sixth class of the right and duty to carry on the legal proceedings pertaining to the prosecution of an action based upon the violation of a city ordinance. [Emphasis is mine]

The California Corporations Act only gave the chief of police the right to institute cases in city court, but if the prosecution resulted in the trial of a case, it was the duty of the city attorney to try it, continued the Court.

Both parties agreed that there was no constitutional or statutory provision prohibiting a person from holding both the offices of city judge and city attorney. However, the Court turned to the common law prohibition against the holding of incompatible offices to declare that when the city judge accepted the office of city attorney, he automatically vacated the office of city judge. Citing various authorities, the Court explained that the common law prohibition against the holding of incompatible offices is predicated upon public policy. One of those authorities was 2 Mc Quillen on Municipal Corporations, § 469:

Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each. Incompatibility, therefore, arises from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to rend it improper from considerations of public policy for one person to retain both. The true test is whether the two offices are incompatible in their natures, in the rights, duties or obligations connected with or flowing from them.

Those and other authorities cited by Rapsey make it clear that the issue of incompatibility isn't the integrity or the practices of the dual officeholder, but whether the offices themselves are incompatible. 3 McQuillen on Municipal Corporations, § 12.67 has this to say on that point:

Public policy demands that an officeholder discharge his duties with undivided loyalty. The doctrine of incompatibility is intended to assure performance of that quality. Its applicability does not turn upon the integrity of the person concerned or his individual capacity to impartiality, for inquires of that kind would be too subtle to be rewarding. The doctrine applies inexorably if the offices come within it, no matter how worthy the officer's purpose or extraordinary his talent. [Emphasis is mine].

There are several criteria of public office. A county attorney in Ross v. Fleming, 211 Tenn. 255, 364 S.W.2d 892 (1963) and the director of law for the Nashville-Davidson County Metropolitan Government in Sitton v. Fulton, 566 S.W.2d 885 (1978) were declared to be officers. In the former case, the Tennessee Supreme Court said:

In deciding whether a particular employment is an office within the meaning of the Constitution or statutory provisons, it is necessary that each case be determined by a consideration of the particular facts and circumstances involved; the intention and subject matter of the enactment, the nature of the duties, the method by which they are to be executed, the end to be obtained, etc.

The line between the public office and public employment is sometimes not too clearly marked by judicial decisions. One of the criteria of public office is the right of the officer to claim the emolument of said office attached to it by law. Another one of the criteria of public office is the oath required by law of the public officials,...another the bond required by law of certain public officials. But in determining the question of whether or not this Act under consideration creates an office or employment it is not necessary that all the criteria be present, however, it has been held on good authority that tenure, oath, bond, official designation, compensation and dignity of position may be considered along with many other things.

In the latter case, the Tennessee Court of Appeals, Middle Section, citing 67 C.J.S., § 2 Officers, defined "public officer" as: incumbent to a public office; an individual who has been appointed to elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises functions concerning the public assigned to him by law.

Then citing 63 Am. Jur.2d Public Officers and Employees, § 10, it said, "A public office embraces the idea of tenure, duration and continuity, and the duties connected therewith are generally continuing and permanent."

In Wise v. City of Knoxville, 294 Tenn. 90, 205 S.W.2d 29 (1952), the Court considered the question of whether a police man was an officer or an employee. In determining that he was an employee, the Court heavily considered whether the charter designated police officers as officers or employees.

Turning to those criteria, the Municipal Charter, Art. III, §§ 3.04 and 3.05 respectively provide for a city attorney and a city judge. Art. III, § 1(d), already cited above as a charter prohibition upon the city judge being the city attorney, declares that, "except as provided in Subsection 3.05(a), the city judge shall not hold any other city office or position of employment, nor shall this office be abolished or its powers diminished." Several other provisons of the City Charter point to the city judge as an officer. In particular, "officers" are required to take the oath of office prescribed by Art. III, § 3.09. I would be surprised if it is seriously argued that the oath doesn't apply to the office of city judge.

In addition, dicta in Wise declares a judge to be an officer.

The City Charter also apparently makes the city attorney an officer, although the charter references in that respect are not as numerous. Art. III, § 3.11 prohibits employees of the city from continuing employment with the city after becoming a candidate for nomination or election to any public office, "but this provision shall not apply to the mayor, councilmen, members of boards or commissions, the city attorney, or other officers of the city." I don't know if the city attorney takes the oath of office prescribed in the charter.

The county attorney and law director in Ross and Sitton were elected or appointed for a definite term. However, in Gamelin v. Town of Bruceton, 803 S.W.2d 690 (1990), the Tennessee Court of Appeals, Western Section, citing the first paragraph of Sitton quoted above held that a recorder who did not have a definite term was an officer under the charter. The fact that the city attorney in Rapsey served at the will of the city council didn't bother the California Supreme Court; it spoke not of the continuing and permanent duties of the city attorney in question, but of the permanent and continuing duties of the office of city attorney.

It may also be important that Ross and Sitton involved the question of whether the county attorney and law director in those cases were public officials within the meaning of Art. XI, § 9 of the Tennessee Constitution prohibiting shortening of the term of office, or alteration of the salary, of a local government officer by private act. I doubt the Tennessee courts would worry as much about whether an officer was tenured for the purpose of determining whether he held incompatible offices.

It's difficult to argue that the dignity and duties of both the city judge and city attorney don't rise to the officer category. They receive their authority and are prescribed their duties under the city charter. The city attorney in particular must be an attorney, and both are cloaked with the authority of officers. Each has extremely broad discretion in the exercise of that authority to a degree not typical of employees.

On the whole, I find it difficult to believe that the Tennessee courts would hold the positions of city judge and city attorney not to be offices within the meaning of common law incompatibility.

The offices of city attorney and city judge are incompatible on the face of the charter. Art. III, § 3.04 says of the duties of the city attorney:

[T]he council shall appoint a city attorney, and such assistant city attorneys as may be authorized by ordinance. The city attorney, or an assistant city attorney designated by him, shall be responsible for representing and defending the city in all litigation in which the city is a party; prosecuting cases in city court; attending all meetings of the council; advising the council, mayor and other officers and employees of the city concerning legal aspects of their duties and responsibilities;...

The city attorney's duty of prosecuting cases in city court under the charter puts the city judge/city attorney squarely within Rapsey and Hines, and in my view, within Thompson. Under Rapsey that would be so even if the city attorney had no express charter duty to prosecute cases in city court.


Sidney D. Hemsley
Senior Law Consultant