FROM: Sid Hemsley, Senior Law Consultant
DATE: October 8, 2004
RE: Court Clerks
You have the same question for the court clerks in the Cities of A and B: Can the city recorders of those cities serve as the court clerks of their respective cities?
Your e-mail says that the City A city attorney and the City B city judge claim that the recorders of those cities cannot serve in both the office of city recorder and of city court clerk. It further says that the basis of their claim is that both the office of recorder and of city court clerk are “oath-taking offices” and that the same person cannot hold two oath-taking offices.
I know of no law or legal doctrine in Tennessee that operates a blanket prohibition upon a person holding two offices, each of which requires an oath. Article II, § 26, of the Tennessee Constitution prohibits “any person in this state,” from holding “more than one lucrative office at the same time.” But that provision does not apply to the holding of a state office and a local
government office, or even two local government offices, at the same time. [See Boswell v. Powell, 43 S.W.2d 495 (1931). Also see Tennessee Attorney General’s Opinion 98-213.]
The City Charter creates, and prescribes a number of functions for, the office of recorder. [See Article II, § 5; Article IV, § 7; Article VII.] [Article VII, § 1 of the charter authorizes the city council to appoint a city judge or designate the recorder to act in that capacity. Apparently the city recorder is not functioning as the city judge. Under § 2 of the Municipal Court Reform Act of 2004, the city recorder cannot serve in that capacity after the effective date of that Act.] The city recorder is plainly an officer under that charter. [See Gamblin v. Town of Bruceton, 803 S.W.2d 690 (1990). Also see Wise v. Knoxville, 250 S.W.2d 29 (1952); Glass v. Sloan, 281 S.W.2d 397 (1955); Ross v. Fleming, 364 S.W.2d 892 (1963); Sitton v. Fulton, 566 S.W.2d 885 (1978).] Article V, § 1 of the city charter provides that “[e]ach officer elected or appointed...” shall take an oath of office. But the charter does not even mention a court clerk, let alone give the clerk any statutory duties. Indeed, Article VII, § 4, gives what are typically the clerical functions of the city court to the city court judge. I assume that the city council designated the city recorder the city court clerk as part of his duties as recorder.
However, the Municipal Court Reform Act of 2004 [Public Acts 2004, Chapter 914, which takes effect March 1, 2005], contains provisions governing municipal court clerks. It requires that all municipal courts shall have an elected or appointed municipal court clerk, and prescribes the following duties for that clerk:
Notwithstanding any provision of law to the contrary, the clerk of the municipal court shall maintain an accurate and detailed record and summary report of all financial transactions and affairs of the court. The record and report shall accurately reflect all disposed cases, assessments, collections, suspensions, waivers and transmittals of litigation taxes, court costs, forfeitures, fines, fees and any other receipts and disbursals.... [Section 2]
That Act will probably makes municipal court clerks officers on March 1, 2005, even if the municipal charter does not do so.
Tennessee Code Annotated, § 18-1-103, prescribes a certain oath for court clerks. It has also been opined by the Tennessee Attorney General that Article X, § 1, of the Tennessee Constitution, applies to municipal offices. That provision requires “[e]very person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof....” to take the oath of office prescribed therein. [OAG 79-223; OAG 98-47; OAG 03-096.] Finally, Tennessee Code Annotated, §§ 8-18-107 et seq., also prescribe an oath of office where one is not otherwise prescribed by law, and various procedures related to oaths. It is the law in Tennessee that where an oath is prescribed for an office, it is mandatory, and the office does not commence until the oath is taken. [State ex rel. Wyrick, 678 S.W.2d 61 (Tenn. 1984).]
But the issue of dual office-holding is not separate oaths of office, for there appear to be no inconsistent oaths of office in Tennessee, at least with respect to city recorders and city clerks.
The issue in dual-office holding is whether the offices in question are incompatible. The holding of incompatible offices is prohibited under the common law. [See State v. Thompson, 246 S.W.3 59 (1952).]
I see nothing in the clerical functions of the city recorder and of the city court clerk that are incompatible. Those functions should not involve any tension among each other, at least none that are serious enough to suggest that the same person should not hold both “offices.” The city judge exercises only ordinance violation jurisdiction. [The judge has concurrent jurisdiction under Article II, § 2 of the charter, but under Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992), cannot exercise it without being elected, and meeting the other qualifications of Article VI, § 4 of the Tennessee Constitution.] For that reason, the city court clerk’s duties involve only municipal ordinance violations and not the exercise of “state” power.
But, even if there is a concern that the city recorder actually holds a separate office when he is appointed city court clerk, and that those two offices are incompatible, the doctrine of incompatible offices can be overcome by statute. [See Jackson v. Hensley, 715 S.W.2d 605 (Ct. App. 1986).] Arguably, the Municipal Court Reform Act of 2004, does that. It provides that:
Notwithstanding any provision of the law to the contrary, at all times there shall be a person elected, appointed or otherwise designated to serve as clerk of the municipal court.... [Section 2] [Emphasis is mine.]
That language comes very near to permitting a municipality to “designate” the city recorder as the municipal court clerk; provided, of course, that the charter does not provide for the election or appointment of a recorder, and authorizes, or at least does not prohibit, such a designation. In some states the law is that a statute that authorizes a person to hold two offices that would otherwise be incompatible must do so in certain language. Notwithstanding the above statute, then, if concern still exists that the designation of the city recorder as the city court clerk creates incompatible offices, there is probably no reason that the city could not ask the General Assembly for an amendment to its charter expressly authorizing the city council to designate the city recorder the city court clerk.
But let me say here that under § 3-301 of the Municipal Code, the city recorder (and assistant city recorder) have the authority to issue “arrest warrants for the arrest of persons charged with violating municipal ordinances.” I have misgivings about the city recorder, functioning as city court clerk, issuing arrest warrants, even for municipal ordinance violations. The reason is that until 1993, city recorders were defined as “magistrates” within their respective jurisdictions, who, under other statutes were authorized to issue warrants. In that year, an amendment to Tennessee Code Annotated, § 40-1-106 removed that position from the list of positions designated as magistrates.
The authority of the city court clerk to issue arrest warrants for violations of municipal ordinances was given to him by ordinance. Arguably, in light of the Tennessee Code Annotated, § 40-1-106, that grant of authority may not be legal.
The city court clerk who was elected to the office of city court clerk is also the city recorder, who is appointed to the latter office by the city’s governing body. But it seems clear that the offices of city recorder and of city court clerk are separate offices in City B. The city recorder has a long list of statutory duties prescribed by § 8, paragraph 1 of the charter, which includes: keeping the minutes of the city council; issuing privilege licenses and collecting, and keeping records of taxes, of various kinds; supervising the cemetery and selling grave lots; and keeping the property and records, etc. of the city. Section 8 of the charter also designates the recorder as the clerk of the municipal court, and prescribes certain administrative duties for that position. But under § 9 of the City Charter, the city court exercises both ordinance and concurrent jurisdiction. Tennessee Code Annotated, § 16-18-207 authorizes the election or appointment of such clerks. The city court clerk is elected to a four year term pursuant to § 3-101(4) of the City Charter. Tennessee Code Annotated, § 16-18-207, in somewhat confusing language provides that, “The elected clerk may be an alternative or in addition to the court clerk provided for by charter....The elected clerk shall perform the duties set out in the charter and ordinances of the city or town for the city court clerk” The city court clerk appears to be an alternative to the one set out in the charter. For that reason, it does not appear to me that the charter provision designating the city recorder the city court clerk is effective. That office is an elective one, filled by whoever wins the election for that office.
While § 5 of the city charter prescribes an oath for members of the board of mayor and aldermen, nowhere in the charter is there an oath prescribed for the recorder or other officers of the city. Municipal courts that exercise concurrent jurisdiction are not “Inferior Courts,” but “Corporate Courts” established under Article VI, § 1, of the Tennessee Constitution. [See Newsom v. Biggers, 911 S.W.2d 715 (Tenn. 1995).] But that distinction probably does not mean anything with respect to the clerks of such courts. The clerks of “Inferior Courts” are required to be elected under Article VI, § 14, of the Tennessee Constitution. It was held in Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992), that a municipal court judge that exercises concurrent jurisdiction exercises “state” power and must meet the requirements for Inferior Court judges under Article VI, § 4, of the Tennessee Constitution. It seems logical, then, that when a municipal court is exercising its concurrent jurisdiction, its clerk is also exercising “state” power. Incidentally, for that reason the oath prescribed for court clerks in Tennessee Code Annotated, § 18-1-103 probably applies to such clerks.
By virtue of being the clerk of a city court that exercises concurrent jurisdiction, the city court clerk holds the office of city court clerk separate from his office of city recorder. A number of state statutes prescribe the powers and duties of court clerks in general and sessions courts in particular. Those statutes probably apply to court clerks that exercise concurrent jurisdiction. [Tennessee Code Annotated, Title 18] The powers and duties of such clerks include a broad range of administrative duties, but they also include “judicial” duties, such as the issuance of arrest warrants. [Tennessee Code Annotated, § 18-4-203. Also see Tennessee Code Annotated, § 40-6-2124.] Those statutory powers and duties cannot be changed by the city council.
But as in the case of City A, the question of whether the City B city recorder can also be the city court clerk depends on whether those two offices are incompatible. This question is a much closer one, in my view. Indeed, at least two cases suggest the answer may be yes. In State v. Brown, 270 S.W.2d 334 (1952), one of the questions was whether the offices of justice of the peace and road commissioner were incompatible. Holding that the answer was no, the Tennessee Supreme Court reasoned that the road commissioners had the limited authority to levy taxes for the procurement of funds for the construction, maintenance, etc., of county roads. That case, said the Court, was on all fours with Boles v. Groce, 280 S.W. 27. In that earlier case, continued the Court, it was held that a member of the quarterly court could legally be elected by the board of education to teach in the public schools because “the Quarterly County Court had no authority to function with reference to the operation of the public schools of the county other than to levy the tax for the procurement of the funds necessary for such operation.” [At 336]
The offices of city recorder and of city court clerk in City B are not as well insulated from each other as were the offices of justice of the peace/road commissioner and the office and employment of member and the member of the quarterly court/teacher. In both instances, the insulation was by body and function. There is less insulation between the offices of city recorder and of city court clerk in City B in the sense that the city recorder and the city court clerk serve the same body. The governing body could threaten the city recorder’s employment. Tennessee Attorney General’s Opinion 99-093, opines that the Gibson County Clerk can be the Gibson County Juvenile Court Clerk. It reasons that both clerks are elected to terms of four years under the appropriate Tennessee constitutional provisions (and that they are not required to be separate persons). Presumably, the point of that reason was that the person serving in both offices was protected for the term of four years in both offices. The city recorder/court clerk is protected for four years in only the latter office.
It is said in 56 Am. Jur. 2d, Municipal Corporations, § 256, that:
The force of the word “incompatible” in its application to this matter [the incompatibility of offices] is that from the nature and relations to each other of the two offices they ought not to be held by the same person, because of the contrariety and antagonism to discharge the duties of one office where they affect the incumbency of the other. The offices of governor of a state and mayor of one of its cities are incompatible, at least where the governor has the power to remove the mayor, even though the necessity for removal may be remote. So also has it been held that the office of justice of the peace is incompatible with that of constable of a town and membership in a municipal council with the office of municipal clerk..... [Emphasis is mine.]
The city council of City B could not remove the city court clerk from his office, but it could remove the him from his office as city recorder. The implications for the recorder’s independence as city court clerk are obvious. But my review of the cases, both inside and outside Tennessee, does not convince me that the office of city recorder and of elected city court clerk in City B are incompatible. But I have conceded that distinct possibility.
If the offices of city recorder and of city court clerk in City B are incompatible, I am not sure how that incompatibility could be overcome by statute. The city court clerk is elected to a four year term pursuant to Tennessee Code Annotated, § 16-18-207, which conforms to the Municipal Court Reform Act of 2004. The city recorder has won election to that office, but conceivably any person who is qualified could run for, and be elected to, that office. Perhaps one of the above statutes could be amended to allow appointed city recorders to hold the office of elected city court clerk. I have no idea whether such a law would pass.
That is as close as I can come on this question.