TO: City Attorney
FROM: Dennis Huffer, MTAS Legal Consultant
DATE: December 24, 2009
RE: City Judge, Vacancy, and Appointment of Special Judges
You have asked for an opinion based upon these facts: your city has two city judge positions. These judges have been granted and exercise concurrent criminal jurisdiction with general sessions courts. Recently one of the judges died. The remaining judge has requested to be appointed to this position as well, thereby allowing him to hold both judgeships. He then will appoint special judges to serve in the vacant position to test them for appointment until the next election. You asked if this comports with the state constitution and laws. In my opinion it does not. The city judge is prohibited by the state constitution from holding two judgeships. And the judge has no authority to use temporary appointments of special judges to fill the vacancy created by the death of the other judge.
Municipal judges who exercise inferior court jurisdiction must meet the constitutional qualifications established for inferior court judges. Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992). Article VI, § 7 of the Tennessee Constitution provides this relative to inferior court judges:
They shall not be allowed any fees or perquisites of office nor hold any other office of trust or profit under this State or the United States.
The office of city judge is an office “of trust or profit” under this constitutional provision. See Op. Tenn. Atty. Gen. 98-171 (August 28, 1998). Under this opinion, the general sessions judge of Coffee County could not also serve as city judge of Manchester. Likewise, in my opinion a city judge of a city court that exercises general sessions jurisdiction cannot hold an additional position of city judge.
Under Tennessee Code Annotated, § 8-48-101(1), the death of an incumbent creates a vacancy in the office. This section applies to municipal offices according to the attorney general. See Ops. Tenn. Atty. Gen. 98-127 (July 20, 1998); 99-075 (April 5, 1999; 04-092 (May 13, 2004; and 08-196 (December 31, 2008). Under the common law, a vacancy means just that, i.e., that the office is unoccupied:
There is no technical or peculiar meaning to the word “vacant” when applied to office. It means unoccupied, without an incumbent, regardless of whether it was ever filled, or when or how it subsequently became without an incumbent. Richardson v. Young, 125 S.W. 326 at 383 (Tenn. 1905).
Since it is impossible for a dead person to occupy an office, and the death creates a vacancy, the vacancy created by the death should be filled as vacancies are filled.
The authority of the General Assembly to provide by general law for the appointment of special judges is distinctly granted but circumscribed by the state constitution. The final sentence of Article VI, § 11 of the Tennessee Constitution provides as follows:
The legislature may by general laws make provision that special Judges may be appointed, to hold any Courts the Judge of which shall be unable or fail to attend or sit; or to hear any cause in which the Judge may be incompetent.
Notice that the only power the General Assembly has to authorize the appointment of special judges is in cases in which the judge is assumed still to be alive and to occupy the office. Only in cases in which the sitting judge is unable to attend, fails to attend, or is for some reason incompetent may a special judge be appointed to serve in the sitting judge’s stead. The statutes implementing this constitutional authority also provide that special judges will be appointed only in the circumstances laid out in the constitution. Often they are even more specific and clear, providing for the appointment of special judges in cases of “incompetency, sickness or other disability of any judge … .” See T.C.A. § 17-2-101, et seq.
The state Supreme Court has recognized that the authority to appoint special judges does not apply to the filling of vacancies but authorizes only the appointment of a temporary judge when the sitting judge is absent or disqualified. Hundhausen v. U. S. Marine Fire Insurance Co., 52 Tenn. 702 (1871). Under a recent attorney general opinion, Op. Tenn. Atty. Gen. 09-133 (July 28, 2009), even the chief justice of the Tennessee Supreme Court does not have the authority to appoint special judges to fill judicial vacancies. Therefore, I doubt that a city judge would.
I hope this is helpful. If you have further questions, please get in touch with me.