Original Author: Hemsley, Sid
Date of Material: 02/27/2006
MTAS was asked whether an amendment to the city's charter will be required if the city wishes to appoint another city judge with the jurisdiction to hear only municipal ordinance violation cases.
FROM: Sid Hemsley, Senior Law Consultant
DATE: February 27, 2006
RE: Creation of Additional Municipal Court Judge
The City has the following question:
Will an amendment to the city’s charter be required if the city wishes to appoint another city judge with the jurisdiction to hear only municipal ordinance violation cases?
The answer is probably yes, because there are no provisions in the City Charter for a second judge who has only ordinance violation jurisdiction. In addition, the city would need to amend the sections of Title 3, Chapter 1, of the Municipal Code dealing with the qualifications and election of the city judge. Those provisions presently prescribe only an elected judge who must meet the qualifications of Article 6, § 4, of the Tennessee Constitution.
Section 12.04 of the City Charter provides for a city judge who has both municipal ordinance and concurrent jurisdiction. Under Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992), city judges who exercise concurrent jurisdiction must be elected and meet the qualifications prescribed for judges of Inferior Court under Article 6, § 4, of the Tennessee Constitution. There is no provision in the City Charter for the election of the city judge, but § 3-101 of the Municipal Code provides for the election of the city judge for an eight year term, and § 3-105 of the Municipal Code requires that the city judge meet the requirements of Article 6, § 4, of the Tennessee Constitution. Presumably, those municipal code provisions were enacted in accordance with the authority of cities to provide for the election of city judges, including the election of city judges who have concurrent jurisdiction under their charters under Tennessee Code Annotated, § 16-18-201 et seq.
From what I understand, there is no intent on the part of the city in such a charter amendment to disturb the jurisdiction of the present elected municipal court judge over municipal ordinance violation cases during his eight year term of office. Still, let me emphasize here that I think that any such attempt would be legally questionable. From a practical standpoint, I do not know how the present city judge, and a newly-created city judge who would have only ordinance violation jurisdiction, would handle ordinance violations cases. They may be able to come to an understanding on that question.
The reason I do not think that the city should attempt to disturb the jurisdiction of the present elected municipal judge during his eight year term of office is that, as far as I can determine, there has never been a Tennessee case involving the question of whether the General Assembly can reduce part of the jurisdiction of an elected municipal judge who exercises concurrent jurisdiction.
Article VI, § 1, of the Tennessee Constitution provides that:
The judicial power of this State shall be vested in one Supreme Court and in such Circuit, Chancery and other inferior Courts as the Legislature shall from time to time, ordain and establish; in the Judges thereof, and in the Justices of the Peace. The Legislature may also vest such jurisdiction in the Corporation Courts as may be deemed necessary...
Article VI, § 4, of the Tennessee Constitution also provides that:
The Judges of the Circuit and Chancery Courts, and of other inferior courts shall be elected by the qualified voters of the district or circuit to which they are to be assigned. 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. His term of service shall be eight years.
In State ex rel. Newson v. Biggers, 911 S.W.2d 715 (Tenn. 1995), one of the questions was whether the municipal court of the City of Jackson, which also exercised concurrent jurisdiction, was an inferior court. No, held the court, declaring that:
Municipal or corporation courts are created by the legislature. If the legislature confers state law jurisdiction to such a court, then constitutional judicial power is vested in the court under Article VI.. This is because the city or municipal court now exercises concurrent jurisdiction with an inferior court.
Thus, while the city court is not an “inferior court” because its jurisdiction consists solely of the enforcement of municipal ordinance violations, it must be in compliance with the provisions of the Tennessee Constitution relating to inferior courts and judges when it exercises concurrent jurisdiction over state offenses. See Town of South Carthage v. Barrett, 840 S.W.2d 895, 899 (Tenn. 1992); Summers v. Thompson , 764 S.W.2d 182 (Tenn. 1988). [At 717] ]
[Also see Moore v. State, 19 S.W.2d 233 (1929); Hill v. State ex rel. Philips, 392 S.W.2d 950 (1965); Doyle v. Metropolitan Government, 471 S.W.2d 371 (1971); City of Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193 (Tenn. 1984)].
A number of Tennessee cases hold that the General Assembly can abolish Corporation and Inferior Courts even when that action shortens the term of the judge. A contrary result is reached in other cases. Generally, those contrary cases turn on the question of whether such action is based on a general law that involves the reorganization of the court or courts, and whether the legislation in question removes the judge, or entirely abolishes the court. However, State v. Leonard, 86 Tenn. 485, 7 S.W. 453 (1886), which deals with the question of whether the General Assembly could take all of the power of the judge of an Inferior Court without removing him from office arguably applies to the question of whether a city can reduce the jurisdiction of an elected city judge during his eight year term of office. I have covered that case below, and distinguished other cases in which the Tennessee Courts have upheld general laws that have changed the jurisdiction of such courts.
Abolishing Inferior (or Corporation) Courts or their Jurisdiction
During the Term of the Judge
In State ex rel. v. Link, 111 S.W.2d 1024 (1938), the Tennessee Supreme Court held invalid a private act that abolished the office of county judge in Stewart County, which had been earlier established by private act. The act had the effect of removing the county judge, and, in the court’s words, “it became the duty of the quarterly court, under general statutes, to elect a chairman of the county court to succeed the defendant.” [At 1024] The state argued that the abolishment of the county judge’s office was supported by certain cases which sustained acts that abolished state and county offices. But the Court rejected that argument, reasoning that:
The principles underlying those cases are not applicable. The power to create the office of county judge or judge of other inferior courts was conferred upon the General Assembly by article 6, section 1, of the Constitution, authorizing the establishment of inferior courts. County courts presided over by a county judge are inferior courts within the meaning of the constitution. [Citations omitted.]....Terms of all judges, including judges of inferior courts, are fixed by the Constitution, article 6, § 4, at eight years, and their tenure cannot be impaired except where the Legislature may find it necessary to redistribute the business of the courts for purposes of economy and efficiency. When in such instances the rearrangement results in the abolition of the tribunal, it operates to vacate the office of the judge who has presided over the abolished tribunal. [At 1025]
There was no such rearrangement, declared the Court:
The county court of Stewart county, over which the defendant presided as county judge, was not abolished, but the act if given effect would remove the judge from office, deprive him of his emoluments, leave the court in existence, and transfer its jurisdiction to a chairman of the county court to be elected from year to year under Code § 10202. That is to say, the office would be transferred from the county judge to a chairman of the county court, another county judge under a different name. [Citations omitted.]....Public office cannot thus be transferred by statute from one official to another. [Citations omitted.]....The Legislature cannot remove a county judge by abolishing the office and devolving the duties upon a chairman of the county court. State v. Leonard, 86 Tenn. 485, 7 S.W. 453. [At 1025]
The State v. Link Court further distinguished the cases in which the removal of a judge through the abolition of his office was approved and disapproved, by comparing the Leonard case and the Judges Cases. Those cases are worth looking at first hand.
In State ex rel. v. Leonard, 86 Tenn. 485, 7 S.W. 453 (1886), an 1885 private act pertaining to Marshall County and another county, created the office of county judge for Marshall County. Leonard was appointed, and was subsequently elected, to that office. In 1887, by another private act, the 1886 act as it pertained to Marshall County vested all the judicial powers of the county judge in the chairman of the county court. The effect of that legislation, declared the Court, was the same as if it had named Leonard by name, removed him from office, and given the office to another. The county judge was the judge of an inferior court under Article VI, § 4, of the Tennessee Constitution, and in that capacity was entitled to protection against unauthorized legislation to remove him from office.
The plaintiff argued “that this act of removal is the same as an act abolishing a Circuit Court, with all its powers and jurisdiction from the consequences of which it has been held by this Court a Circuit Court Judge would be deprived of his office.” [Citations omitted.] [At 86 Tenn. 491.] In rejecting that argument, the Court reasoned that:
The act construed in these cases was one abolishing the Second Circuit Court of Shelby County, passed in 1875. [Citation omitted.] There were two Circuit Courts in Shelby County–the First and Second. As one was enough to do business of the county, or supposed to be, the Legislature abolished this Court, leaving the entire business of both Courts to be done by the First... It was held in the cases referred to that the Legislature might abolish a circuit, or Court held for a circuit or given territory, and that when the Court was abolished the office of the Judge thereof terminated....Without desiring to be understood as assenting to the correctness of the conclusions reached in those cases (to the reasoning of which we do not subscribe), and which conclusions, we may remark in passing, were reached by a divided Court, and against the weight of many opinions in other States, it is sufficient to say that the case here presents no such question as that determined there. [At 86 Tenn. 491]
The reason Leonard did not present any such question, said the Court, was that the 1887 private act did not abolish the court created by the 1885 private act; the latter act left the court intact, it simply changed the judge.
The Leonard Court stated a policy reason for overturning the 1887 private act that removed the judge appointed and elected under the 1885 private act:
The Constitution, in fixing the terms of the judges of the inferior courts, elected by the people, at eight years, intended not only to make the judiciary independent and thereby secure to the people the corresponding consequent advantages of courts free from interference and control, and removed from all necessity of being subservient to any power in the State, but intended also to prevent constant and frequent experimenting with court systems, than which nothing could be more injurious or vexatious to the public. [At 86 Tenn. 488-89]
We now come to the Judges Cases (Mc Cully v. State), 102 Tenn.508 (1899). In that case, the General Assembly repealed the act that had created the Criminal Court of the Eleventh Judicial Circuit, which repeal abolished that court. That Act was not to take effect for 30 days following the adjournment of the General Assembly. Following the passage of that Act, the General Assembly under the authority of Article VI, § 6, of the Tennessee Constitution, passed a resolution, approved by the governor, that removed Judge Taylor from his office of judge of the Criminal Court of the Eleventh Judicial Circuit. The resolution apparently contained the following substantive language:
[T]here is not sufficient business to require to justify the retention in office of said official, and that it is necessary to the welfare of the state that the judicial circuits and chancery divisions should be redistricted, and that there should be a reduction in the number of Circuit Judges, Chancellors and Attorneys-general, to the end that there may be a reduction in the judicial expenses of the state and for the promotion of economy in the administration of public justice. [At 102 Tenn. 513]
There were two questions in this case:
1. Could the judge, whose office was still in existence, be removed under Article VI, § 6, for economic reasons?
No held the Court.
Article VI, § 6, authorizes the removal of judges, “for cause,” by a concurrent vote of both houses of the General Assembly. The Court reasoned that “the cause of removal must relate to the personal conduct of the Judge or his administration of the office.” [At 528]
The answer to Question 1 technically resolved the issue in the Judges Cases, which was whether Judge Taylor had jurisdiction to try a defendant for selling liquor to a minor. The defendant argued that he was convicted on May 7, 1899, when the judge had been removed on April 21, 1899. (At that time the act abolishing the Court had not taken effect; its effective date was 30 days after the final adjournment of the General Assembly). But the Court, on the entreaties of counsel, decided to answer the second question, to avoid further litigation.
2. Did the General Assembly have the authority to abolish the court?
Yes, held the Court.
The Court pointed to two earlier cases in which the same question had arisen: State ex rel. Coleman v. Campbell, 3 Shannon’s Cases 355 (1885), and Halsey v. Gaines, 70 Tenn. 316 (1879). In Coleman, said the Court,
This Court held (1) That the Legislature has the constitutional power to abolish particular Circuit and Chancery Courts, and to require the papers and records therein to be transferred to other Courts, and the pending causes to be heard and determined in the Courts to which they are transferred. The power to ordain and establish from time to time Circuit and Chancery Courts includes the power to abolish existing Courts and to increase and diminish their number. (2) The Judge’s right to his full term and his full salary is not dependent alone upon his good conduct, but also on the contingency that the Legislature may for the public good, in ordaining and establishing the Courts from time to time, consider his office unnecessary and abolish it... (3) It is provided that there shall be but one Supreme Court, the number of judges is fixed and the places of its sessions are designated. These provisions show that it is the direct creature of the Constitution and subject to no invasion by the Legislature. [At 102 Tenn. 534-35]
With respect to the Tennessee Constitutional provisions governing the inferior courts, the Court declared that:
The object was to provide a system of inferior Courts, which would secure to all the people of the State the benefits of a sure and economical administration of justice through all time. The State as composed of many citizens, and its population and material interest subject to great changes. These fluctuations would necessarily require changes, from time to time, in any system of Courts that might be adopted. Hence it was not deemed proper by the Convention of 1870, to fix, permanently, by Constitutional recognition, the systems of inferior Courts then in operation, although they embrace the entire State. For the purpose of providing future contingencies and exigencies, they were content to leave the ordaining and establishing of inferior Courts from time to time, to the discretion of the Legislature, with the single restriction as to continuance of the Circuit and Chancery Courts. It is legitimate business of the Legislature to determine how many Courts are necessary, and how the various circuits and districts should be arranged and formed. [At 102 Tenn. 535-36]
In Halsey, continued the Court, the judge of a court abolished by the Legislature demanded his salary be paid until the end of his elective term, apparently on the theory that although the court may have been abolished the term of the judge continued until its end. In rejecting that argument, the Court declared that it was well-settled law that “the Legislature has the power to abolish as well as create, to diminish as well as to increase, the number of judicial districts.” [At 102 Tenn. 543]
Turning to the argument that State ex rel. v. Leonard, had overruled Coleman and Halsey, the Court distinguished those cases:
The cases were wholly dissimilar. The question in the Leonard case, as stated by the Court, was whether the Legislature has the power to terminate the office of a Judge elected under a constitutional law and for a constitutional term of eight years, within that term, leaving the court with its jurisdiction in existence and unimpaired, by simply devolving the duties of the office upon another official, namely the chairman of the County Court. [At 102 Tenn. 544]
That, agreed the Court, could not be done, but in the Judges Cases, said the Court, the court in question was being entirely abolished.