August 20, 2001
You have the following questions:
1. Does the city judge serve at the will of the city council?
The answer is yes.
2. Can the city council appoint the city judge of another city your City Judge?
The answer is yes.
Analysis of Questions 1 and 2
Under Article VII, Section 1, “The Mayor and Board of Aldermen of your City, Tennessee, shall have the authority to appoint a City Judge or designate the City Recorder to serve in such capacity....” Nowhere in Article VII, nor in any other provision of the charter is there a term prescribed for the city judge. The city judge is vested with ordinance jurisdiction, and with concurrent jurisdiction under Article VII, Section 2, but after State v. Barrett, 840 S.W.2d 895 (Tenn. 1992), if a city judge is to exercise concurrent jurisdiction, he or she must be elected to an eight year term. There is no provision in the city’s charter for an election of the city judge to such a term. For that reason, the city must rely on Tennessee Code Annotated, § 16-18-203, which provides that the city can by ordinance provide for the election of a judge with concurrent jurisdiction. But the city is not required to pass such an ordinance.
Often it is necessary to determine whether a person is an officer or an employee for the purpose of determining the circumstances under which the person can be terminated. Although the city judge is probably an officer rather than an employee, that distinction appears to make no difference in the answer to your question. There is nothing in the charter nor state law that gives the city judge a property right in his position or a term of office. [See Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App. 1990); Gay v. City of Somerville, 878 S.W.2d 124 (Tenn. App. 1994); State ex rel. Lewis v. Bowman, 814 S.W.2d 369 (Tenn. App. 1991); Dingman v. Harvell, 814 S.W.2d 362 (Tenn. App. 1991).]
In Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App. 1990), the town recorder argued that he was an employee, hoping to obtain the protection provided to employees under the town’s personnel policies. Holding the recorder to be an officer, the Court declared that with respect to officers, “The right of removal from office is an incident to the right of appointment unless the term of the official is fixed by law for a definite period. See Brock v. Foree, 168 Tenn. 129, 778 S.W.2d 314 (1934).” [At 693] Similarly, the Tennessee Supreme Court in Gillespie v. Rhea County, 235 S.W.2d 4 (1950), said with respect to an officer appointed by the county governing body and for whose office no term was prescribed by statute or the constitution, that:
The Statute authorizing the appointment of Service Officers did not specify that they could or should be elected for a specified term of office. It is perfectly obvious to us that these officers were appointed at the will of the County Court or the governing body of the City who appointed them as was the chief Service Officer who was appointed by the Governor under whom these County and City Service Officers serviced. The Chief Executive Officer of the State having the power to appoint the Chief Service Officer and the Statute not providing any term for which he should be appointed it necessarily follows that the Governor has the right to fire this officer at his pleasure and that he would have no power to appoint such officer for a term beyond the term of the Chief Executive appointing such officer...[T]he implied power to remove cannot be contracted away so as to bind the appointing authority to retain a minor officer or employee for a fixed, definite term. This is a universally accepted rule where the tenure of office is not prescribed by Statute or the Constitution. Under such circumstances the power to remove is an incident to the power to appoint. [At 7]
Gillespie is cited for the same proposition in Hamblen County v. Reed, 468 F. Supp. 2 (E.D. Tenn.).
Article VII, Section 1, of the city’s charter itself supports the conclusion that the city judge serves at the will of the city council. It authorizes the city council to appoint a city judge or to designate the city recorder as the city judge. Nothing in the charter limits the city council to a specific time in which such a designation of the recorder can occur. For that reason, it could occur at any time.
There is a line of cases which holds that personnel actions may not be taken against non-policymaking employees for political reasons. [See Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980).] However, generally, where party affiliation, or support or opposition to political candidates or to incumbent officeholders, is not involved in such actions, it has been very difficult for an officer or employee to make a case on that ground. As I understand the facts, none of that is involved in your question.
I know of no reason that the city council could not appoint the city judge of another city to serve as your City Judge. In fact, in some cases, the same person serves as the city judge in more than one city in Tennessee. Neither the city charter nor any state statute prohibits such multiple judicial service.
Sidney D. Hemsley
Senior Law Consultant