October 25, 1993
Your question is: Can the general sessions judge serve as the city judge for a salary in addition to his general sessions judge salary? The answer is yes if the city judge exercises jurisdiction over only municipal ordinance violation cases, no if the city judge exercises concurrent jurisdiction.
Under Section 11 of the City Charter the city recorder functions as the city judge and appears to have concurrent jurisdiction with the court of general sessions. However, there is nothing in the charter or general law that requires the city judge to actually exercise concurrent jurisdiction.
However, because Sections 10 and 11 of the charter provide for the recorder (and in his absence the mayor) to be the city judge, the city must do one of two things before the general sessions judge can serve as city judge:
- Amend its charter to permit the governing body to appoint someone other than the city recorder the city judge.
- Pass an ordinance prescribed by Tennessee Code Annotated, section 16-18-101 et seq. That statute is designed for cities whose charters make no provision for anyone other than the recorder or the mayor to be the city judge.
If the City Judge Exercises Concurrent Jurisdiction.
Article 6, Section 7 of the Tennessee Constitution provides that:
The judges of the Supreme or Inferior Courts, shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected.
General sessions courts are "inferior" courts within the meaning of Article 6, Section 7. [See Thrasher v. Lively, 263 S.W.2d 497 (Tenn. 1953); Durham v. Dismukes, 333 S.W.2d 935 (1960)] It is not clear whether city courts that exercise jurisdiction with court of general sessions are also inferior Courts within the same constitutional provision, but my opinion is that State ex rel. Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992), strongly impled that they are. In an opinion issued a couple of years before Barrett, the Tennessee Attorney General also took the position that such courts are inferior courts. [See OAG U90-100]
The Tennessee Supreme Court appears to have made it clear in Franks v. State, 772 S.W.2d 428 (1989) that Article 6, Section 7 of the Tennessee Constitution an inferior court judge cannot receive additional compensation for performing the duties of another inferior Court during the present term of his or her office. There Franks had been the Williamson County General Sessions Court judge since 1977 and the Williamson County juvenile court judge since 1980. In 1982 the General Assembly passed an act permitting the county legislative body to provide additional compensation to general sessions judges in such counties. The same year the Williamson County Commission under that act approved a supplemental income for Franks for her additional duties as juvenile court judge.
The Williamson County Commission could not increase the salary of the juvenile court judge, said the Court. Citing Shelby County v Six Judges, 3 Shan.Cas. 508, 511, 516, 620; Judges' Salary Cases, 110 Tenn. 370, 381, 382, 75 S.W.2d at 5, it declared that only the Tennessee General Assembly has the authority to fix the salaries of the judges of inferior courts, and both the juvenile court and sessions courts were inferior courts. [Also see Bayless v. Knox County, 199 Tenn. 268, 286 S.W.2d 579 (1955), State ex rel. Boone v. Torrence, 63 Tenn. App. 224, 470 S.W.2d 356 (1971), O.H. Wilson v. Johnson County, 18 TAM 31-4 (Ct. App., E.S., filed July 12, 1993), and State ex rel. Barker v. Harmon, 18 TAM 31-5 (Ct App. W.S., filed July 16, 1993)]
The Court distinguished Franks from the earlier Chambers v. Marcum, 195 Tenn. 1, 255 S.W.2d 1 (1953), in which it had held that a county judge was the judge of an inferior court, but could receive extra compensation during his term of office for his function as fiscal agent of the county. The reason he could receive extra compensation, said the Court, was that the function of fiscal agent was not the function of a judge of an inferior court.
A general sessions judge is the judge of an inferior court. If he is also the judge of a city court which exercises concurrent jurisdiction, in that capacity he is also the judge of an inferior court. For that reason he cannot be the city judge for an additional salary.
If the City Judge Exercises Jurisdiction Only Over Ordinance Violation Cases.
In OAG U90-100 The Tennessee Attorney General was asked whether the salary of the Gallatin city recorder/judge could be increased during his term of office. The Gallatin city court was established under private act and had concurrent jurisdiction under its charter but did not exercise it. The AG opined that under present law Article VI, Section 7 of the Tennessee Constitution does not apply to municipal courts that have, but do not exercise, concurrent jurisdiction; therefore, the city could increase the salary of the municipal court judge. The AG cautioned that the law was uncertain in this area.
In my opinion, OAG U90-100 is an accurate reflection of the law. Arguably, if the city court is not an inferior court because it does not exercise concurrent jurisdiction, then under Chambers the sessions judge may legally stand in the same position as the county judge/county fiscal agent stood. In other words, under Article VI, Section 7 of the Tennessee Constitution his salary as general sessions judge could not be altered because the general sessions court is an inferior court, but he could accept additional compensation for performing the functions of city court judge because that court is not an inferior court.
OAG Opinion 86-192 raises the question of whether such logic will fly, but my view is that opinion does not apply to the facts of your question and on some points is at least partially questionable.
There the question was whether the Hamblen County Sessions Judge could serve as the city judge. However, the county, not the judge, received reimbursement from the city for his services. The AG first pointed to the law that required the sessions judges of counties of the class of which Hamblen County was a part to devote full time to the duties of sessions judge. Your County is not in that class.
Then the AG opined that the sessions judge could serve as the city judge only if the city on the one hand, and the sheriff, the sessions court, and the county on the other, entered into a contract pursuant to Tennessee Code Annotated, section 12-9-104 for the enforcement of the city's ordinances, as provided by Tennessee Code Annotated, section 12-9-104. But even if it is conceded that the AG's opinion on that point is correct (which it may not have been since the city and not the sheriff was enforcing the city's ordinances), it is my view that it would have been wrong if the general sessions judge rather than the county had been the recipient of the additional compensation and if the sessions judge was hearing only municipal ordinance violation cases.
Finally, the AG concluded that Article VI, Section 7 of the Tennessee Constitution prohibited the general sessions judge or the county from receiving additional compensation for serving as city judge. In my view the AG's opinion on that point was wrong, at least with respect to the general sessions judge, unless the sessions judge was also exercising concurrent jurisdiction. That part of the opinion also appears to conflict with OAG U90-100.
It is also noteworthy that OAG U93-46 opines that an appointed municipal judge is an "employee" of the city. If that is true and there is no constitutional or statutory prohibition against a general sessions judge serving as a municipal judge who does not exercise concurrent jurisdiction, it is logical that the general sessions judge can be an "employee" of the city. I find no constitutional or statutory prohibitions upon the general sessions judge of the County from serving as the city judge for additional compensation.
Sidney D. Hemsley
Senior Law Consultant