You have the following question: Which of my opinion and the informal opinion of the Tennessee Attorney General with respect to the right of the city to make the city court clerk’s position an appointive one is correct?
As I indicated to you on the telephone, I had a tough time with this question. I certainly understand why the Tennessee Attorney General in an informal opinion opined that the city could not by ordinance make the city court clerk’s position an appointive one during the term of office of the clerk. That opinion is based on two constitutional problems it found in such an action by the town:
1. Article XI, Section 9, of the Tennessee Constitution, prohibits private acts that have the effect of removing the incumbent from any municipal office or abridging the term or altering the salary prior to the end of the term for which such public officer was selected. [Emphasis supplied by the opinion.]
2. Article VI, Section 13, of the Tennessee Constitution requires that “Clerks of the Inferior Courts holden in the respective Counties or District, shall be elected by the qualified voters thereof for the term of four years.” [Emphasis supplied by the opinion.]
Taking the last constitutional problem first, the last paragraph of my January 25 opinion sounds a cautionary note on the same constitutional problem. I think there is a good possibility that if the proper case presents itself, the courts will hold that the clerks of municipal courts that exercise concurrent jurisdiction are Inferior Courts within the meaning of Article VI, Section 13, of the Tennessee Constitution, and for that reason must be elected. My point of departure from the Attorney General’s opinion on that problem is that there has yet been no such ruling. While in many cases I would advise a municipality not to take a certain action based on what the courts might hold in a given set of facts, in the case of the status of municipal court clerks I see no serious harm done to a municipality if it chooses to proceed based on what the law presently is. My opinion was based on what the law presently is. However, I certainly have no quarrel with the city if it takes into account this constitutional problem to which the Attorney General’s opinion points.
With respect to the first constitutional problem, it appears to me that the pertinent and cited part of Article XI, Section 9, of the Tennessee Constitution is personal to the incumbent. In your case there is no incumbent, he having resigned from office. A change in the method of selecting the town court clerk from election to appointment in no wise has the effect of removing an incumbent from office, or from shortening his or her term.
It can be argued that a “term” within the meaning of the pertinent provision of Article XI, Section 9, refers to the entire term of the office in question, no matter who or how many persons hold the office during the term. In the case of the Your court clerk, the term is four years,. It is said in Day v. Sharp, 183 Tenn. 340 (1913), that “Office for a term has been described as an entity in so far as that a removal, for disqualification, of an officer does not operate to divide the term or create a new and distinct one. ‘In such case the successor is filling out his predecessor’s term..’” [At 346] Presumably, the same rule applies to vacancies in office for any reason.
But Shelby County v. Hale, 292 S.W.2d 745 (1956), which deals with an interpretation of the pertinent language of Article XI, Section 9, of the Tennessee Constitution, declares that:
One reading the second paragraph [the pertinent provision of Article XI, Section 9] above plainly and understandably finds that the clear language of this section is that the General Assembly shall have no power to enact legislation which has the effect of (1) removing an incumbent from a county or municipal office, (2) abridging the term of such office or (3) altering the salary of such office during the term hereof. [At 747]
It appears to me that the Court in that case speaks of the “office” in the sense of the incumbent who holds that office at a particular time. The Minutes of the 1953 Constitutional Convention, reflecting the debates of the delegates on the pertinent language of Article XI, Section 9, seem to me to support that reading:
Wednesday, June 3, 1953, MR. POPE:
This other resolution, as I started to tell you, I think that you are familiar with it; I want to say to you that the resolution adopted as the majority report on Home Rule is indeed satisfactory to me, and as far as I know, to all those who have indicated that they favor the resolution. There is no change from what we started out with, as far as the meaning is concerned; it absolutely abolishes local bills, so far as legislating somebody out of office, and legislating somebody into office, until the end of the term of that office for which that individual was selected.
That has been the basic reason for the call of this Convention, this wicked local bill situation that has been growing in this State, to get John Jones out and Bill Smith in; and then it goes further in the resolution, it provides that the Legislature has no authority to alter, either up or down, the salary of any local official during the term of office for which he was selected...[Minutes, at 1023].
Thursday, June 4. 1953, MR. FLETCHER:
The provisions are quite simple; there are two. “The legislature shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or of abridging the term or altering the salary prior to the end of the term for which such public officer was selected.” That is one; that stands by itself. [Minutes, at 1037]
Tuesday, July 14, 1953, MR. POPE:
Now, if you will take just one minute, that resolution simply means this, that the legislature cannot under any circumstances pass an act abolishing an office, changing the term of the office or altering the salary of the officer pending the term for which he was selected; that is prohibited, and that kind of an act cannot be passed...
Now, that is this act in plain language, and it seems to me that it will destroy this local bill business that we have been talking so much about... [Minutes, at 1113-14]
The Wednesday, May 23, 1953, Minutes, also reflect a long speech by MR. SIMS in which he pointed to the “Ripper Bills,” that were the basis of the so-called Home Rule amendments, which became Article XI, Section 9, of the Tennessee Constitution [Minutes, at 905-917]. The Ripper Bills abolished local offices, shortened terms of local officers, altered the salaries of local officers, and did various other things to local governments and their charters, without local approval. The Wednesday, May 27, 1953, Minutes also reflect a speech by MR. McMURTRY, in which he endorsed MR. SIMS comments, and added his own experience:
When I was a young man, some 15 or 16 years ago, I saw my native county torn astrife by one of the most vicious arbitrary and class legislation acts that has ever been introduced in the history of Tennessee. In the general election in August, 1935, a candidate was renominated for the office of Road Commissioner and assumed the duties of his office the following September.
When the legislature met in January, 1936, the Senator from the 14th Floterial District introduced an act to abolish the office of Road Commissioner of this county, and in another created the office of Superintendent of Roads; and it further provided that any man who had served as road commissioner of that particular county for the past four out of the past eight years was ineligible to hold said office. That bill was signed; the road commissioner went out of office probably with approximately three years and six months of his term to which he had just been elected...[At 934]
Those minutes and comments indicate that the purpose of the pertinent language of Article XI, Section 9, was to protect the term, and salary of, officeholders who were presently holding office. As pointed out above, there is presently no town court clerk.
Incidently, it is also said in the Attorney General’s opinion that the ordinance establishing the office of city court clerk was based on Tennessee Code Annotated, § 16-18-207. However, Article IX, of the City Charter generally provides for a town court. Section 9.01 of that article provides for a town judge with municipal ordinance jurisdiction; Section 9.02(a) for an appointed judge; and Section 9.02(b) for an elected town judge, if the city by ordinance determines that the town judge shall exercise concurrent jurisdiction. Section 9.03 also provides that “at the same time the town council adopts an ordinance authorizing the town court to exercise its jurisdiction concurrently with general sessions courts, the town council may within that same ordinance authorize the election of a town court clerk at the next regular town election.”
I found nothing–and still find nothing–in the history of Article IX of the City Charter generally, or in Article IX, section 9.02 of the City Charter specifically, that ties the election of the town court clerk to Tennessee Code Annotated, § 16-18-207. In fact, the popular election of a city judge under Tennessee Code Annotated, §16-18-201 et seq.:
...may be an alternative to the method provided in the charter or applicable general law provisions or in addition to that method, with one (1) or more judges being chosen under charter or applicable general law provisions and one (1) or more being chosen by popular vote pursuant to this part.
In addition, Tennessee Code Annotated, § 16-18-207, which authorizes a popularly elected city court clerk, also declares that, “The elected clerk may be an alternative to or in addition to the court clerk provided for by charter.” It appears to me that both the popularly elected city judge and the popularly-elected city court clerk can be elected either under the city’s charter or under Tennessee Code Annotated, § 16-18-201 et seq. Indeed, under that statute there would have been no reason for the city to have provided in its charter for a popularly-elected town court clerk pursuant to ordinance; such a clerk could have been elected by ordinance under the statute itself. For those reasons, the provisions in Tennessee Code Annotated, §16-20-207, under which vacancies in the office of municipal court judge are filled by the municipal court judge, do not necessarily apply to your town court.
Sidney D. Hemsley
Senior Law Consultant