December 28, 1992
Mr. Schwartz, the MTAS Executive Director asked me to respond to your letter of November 20 on the question of whether Barrett requires the clerk of a municipal court exercising concurrent jurisdiction to be elected.
You are correct that the election of the court clerk was not an issue in Barrett; I suspect the Court never even thought about the requirement in the Tennessee Constitution, Article 6, § 13 that the clerks of inferior courts be elected for a term of four years. You also correctly point out that nowhere in Barrett did the Court explicitly declare that a municipal court exercising concurrent jurisdiction is an inferior court (although, as I read the case, the defendant made that argument both to the trial court and the Tennessee Supreme Court). There is no question but what it can be argued that municipal courts exercising concurrent jurisdiction are not inferior courts, but are only exercising inferior court jurisdiction. It would have been helpful if the court had been more clear on that point.
However, the court also declared that "After reviewing the record and the relevant case law, we conclude that the case at bar is controlled by the rationale of State ex rel. Haywood v. Superintendent, Davidson County Workhouse, supra, and Justice Drowota's concurring opinion in Summers v. Thompson, 764 S.W.2d 182 (Tenn. 1988)." The Barrett court went on to discuss the "rationale" of Summers but passed over the rationale of Haywood.
In the course of discussing the rationale of Summers, the Barrett Court spoke only of a city court exercising concurrent jurisdiction with an inferior court. In fact, Justice Drowota's concurring opinion in Summers in similar language repeatedly hits all around the question of whether a municipal court granted concurrent jurisdiction is an inferior court or only a municipal court exercising concurrent jurisdiction. However, ultimately he seems to declare that it is the former in the following language:
[T]he power to create such courts is granted, not under the provisons of Article VII, which pertains in part to local government, but under Article VI, which establishes the judicial power of the State. Although cases have held that a corporation court is not a constitutionally mandated court, e.g., State ex rel. Johnson v. Davis, 204 Tenn. 510, 513, 322 S.W.2d 214, 215 (1959), the necessary implication of its inclusion in Article VI, § 1, is that a city court can be given sufficient jurisdiction to constitute an inferior court within the meaning of Article VI. [Emphasis is mine.]
A few lines later, Justice Drowota says, "Whether the Legislature has vested much of little jurisdiction in an inferior court does not change the nature of the court as a part of the judicial department of the government." [Emphasis is mine.]
Later, in discussing the at will status of municipal judges, Justice Drowota says:
I no longer read the language of Article VI, § 1, which apparently creates a distinction between municipal courts and other inferior courts, as necessarily excluding municipal courts from the protections and requirements under these other provisions of the Constitution. First, I think that the framers merely intended not to distinguish but to include municipal courts within the judicial power established and preserved by Article VI, §1, and thus, depending upon its jurisdiction, a municipal court may constitute an inferior court within the meaning of the Tennessee Constitution as a repository of the judicial power. Second, if the provisions of Article VI, § 1 is ambiguous as a result of this distinction, '[t]his Court is bound by the rule constitutional provisions should be given a broad and flexible interpretation where ambiguities exist.' [Emphasis is mine.]
And finally, declares Justice Drowota, "All inferior courts, including municipal courts exercising concurrent jurisdiction with an inferior court, are authorized directly by the Constitution, despite the fact that only three courts are specifically established by mandate."
It is that "rationale" in Summers, adopted by Barrett, that leads me to believe that the latter holds that municipal courts exercising concurrent jurisdiction with courts of general sessions are, when they do so, inferior courts, in spite of confusing language in both cases that indicates they are municipal courts exercising the jurisdiction of an inferior court.
A similar "rationale," although not discussed by the Barrett Court, appears in State ex re. Haywood v. Superintendent, Davidson County Workhouse. There the Court, in holding a juvenile court unconstitutionally established by a municipality, distinguished between a corporation court which hears municipal ordinance violation cases and the juvenile court in question:
The court with which we are not dealing is not a 'corporation' court, but is one which is authorized to enforce the criminal laws of the State affecting juveniles. It exercises judicial power and can have no legal existence unless erected by the Legislature pursuant to the provisons of the Constitution...When the Legislature ordains and establishes 'such circuit, chancery, and other inferior courts,' it cannot be doubted that the judges of such courts must be elected... [Emphasis is mine.]
Although it didn't expressly say the juvenile court was an inferior court, that appears to be the holding in Haywood, on the ground that the juvenile court was authorized to enforce the criminal laws of the state affecting juveniles. The Barrett court pointed out that a municipal court exercising concurrent jurisdiction with a court of general sessions had precisely the same power.
Even if it could be successfully argued that municipal courts exercising concurrent jurisdiction with courts of general sessions are not inferior courts under Barrett, but only municipal courts exercising jurisdiction with inferior courts, I can't figure out why the provisons of Article VI, § 4 governing the election of judges of inferior courts would apply to them, yet they would be exempt from all the other Tennessee constitutional provisons governing inferior courts. If such courts exercise constitutional power, it seems to me that all the provisons of the constitution related to that power apply to them. The same arguments that support an "independent judiciary" support and independent court clerk, particularly one who exercises considerable judicial powers. both Summers and Haywood spoke of the provisons (plural) of the constitution that apply to judges of inferior courts.
Nevertheless, as I understand it, the legislation being drafted by the TML for introduction to the Tennessee General Assembly to resolve the issues raised by Barrett is consistent with your view. It does not provide for elected municipal court clerks, and permits the municipality to set the salary of the municipal court judge. That legislation is also supplementary, so that municipalities can resolve those issues by amendment to their charters if they so choose.
My opinion is that municipalities are best advised to consider their municipal courts inferior courts if they exercise concurrent jurisdiction, that the corollary is that the municipal court clerk also has to be elected and the salary of the municipal court judge set by the Tennessee General Assembly rather than the municipal governing body, and that the resolution of all those issues is best handled by charter amendment.
I will be glad to keep you posted on, and provide you a copy of, the legislation that TML finally proposes for introduction to the General Assembly.
Sidney D. Hemsley
Senior Law Consultant