August 17, 2000
Your letter of August 4, 2000, reflects the following question: Can the city judge elected
on August 3, 2000, refrain from taking office until April, 2001? Under the facts, the present city
judge, who exercises con current jurisdiction, was elected at the regular city election in April,
1993. Neither the city charter nor the ordinance under which he was elected, specify the city
judge’s term of office, but apparently it was assumed that his term was eight years. On
November 18, 1998, I wrote to you a letter in which opined that the City could not provide for the
election of a city judge in April of odd-numbered years, for two reasons:
1. The City is a home rule city, and Tennessee Code Annotated, section 16-17-101 et
seq. provides for the election of judges in home rule cities in the general election, and because
the City judge exercises concurrent jurisdiction, must be elected, and take office, in the same
manner and at the same time as judges of Inferior courts under Article VI, Sections 4 and 5 of
the Tennessee Constitution.
2. The City Judge might be elected under Tennessee Code Annotated, section 16-18201, in which case the judge would still be elected and take office in the same manner and at
the same time as judges of Inferior Courts under Article VI, Sections 4 and 5, of the Tennessee
Constitution.
It is clear that city judges who exercise concurrent jurisdiction must be elected for eight
year terms of office in the general state election held in August of even-numbered years, and
that their terms of office begin on September 1, of even-numbered years.
In my opinion, it is advisable that the newly-elected city judge should take office
September 1, 2000.
It has been held that where a statute provides for a judicial term differing from the judicial
term provided in Article VI, Section 4, of the Tennessee Constitution, an eight year term is read
into the statute. [State ex rel. Rambo v. Maloney, 20 S.W. 419 (Tenn. 1892); State ex rel. Orr v.
Leonard, 7 S.W. 453 (Tenn. 1888)]. The date eight year judicial terms begin is September 1,
2000.
Some states take the view that the refusal to take office is an indictable offense at
common law. For example, Warner v. Selectmen of Amherst, 95 N.E.2d 180 (1950), declares
that:
At common law acceptance of appointment to public office is
compulsory and such office once assumed cannot be laid down
without the consent of the appointing power. [Citations omitted.]
The weight of authority in this country, where the common law has
not been superceded by the provisions of constitution or statute, is
in accord with this rule. [Citations omitted.] [At 183]
The State of North Carolina, from which Tennessee sprang, rejects that view. It is said in
State v. McEntyre, 1842 WL 1047 N.C. (1842), that:
There is an essential difference between failing to perform a duty
of an office, into which a person has entered and which he is
defacto filing, and refusing or failing to accept the office, and
qualify himself. A person who undertakes an office and is in office,
and therefore, may have a defeasible title or not have been
compelable to serve therein, is yet, from the possession of its
authorities, and the enjoyment of its emoluments, bound to
perform all the duties, and liable for their omission, in the same
manner as if the appointment were strictly legal, and his right
perfect. But when a person is charged, as a crime for failure to
accept and serve in an office, he may, in the first place, insist,
supposing him to have been duly chosen or elected, that the
omission is not punishable by indictment; and in the next place,
there is nothing to prevent him from showing that he was not duly
appointed or elected. Upon each of these grounds we think these
defendants should have been acquitted.
It is manifest, that these persons never entered upon the offices to
which it is said they were elected. The act does not make the
election by itself an investiture; but taking the oaths of office is a
pre-requisite to induction. The not taking them is the gist of the
first count; and the second count is founded on the idea, that
election only is all that is necessary to put the persons in
office...Now, the court has no doubt that it is competent to the
Legislature to require any person, appointed to office in any
manner prescribed by law, to serve therein, under the pain of
indictment or any other penalty. But we are aware of no principle
of the common law, that renders such an omission criminal; and
this statute contains no provision to that effect. [At 3-4]
I know of no Tennessee general law, or law pertaining to the City, that makes it an
offense for an officer to refuse to accept the office to which he was appointed.
However, Warner, above, cites in support of the preposition that the taking of office is
compulsory, the Tennessee case of State ex rel. v. Grace, 82 S.W. 485 (1904). While Grace
does not appear to go that far, it does make this compelling statement with respect to an
officeholders:
Official robes cannot be put off and assumed at the pleasure of
individuals or officers. Public interest requires that all possible
certainty exist in the election of officers and the beginning and
expiration of their terms, by law or resignation, and forbids that
either should be left to the discretion or vacillation of the person
holding the office or the officer or body having the appointing
power...[Citations omitted].
The constitutional and statutory provisions in Tennessee providing
that every officer shall hold his office until his successor is elected
or appointed and qualified, do not apply to cases of this character.
[At 16-17] [Emphasis is mine.]
That case involved a municipal officeholder who clearly resigned from office, whose resignation
was clearly accepted, and who attempted to change his mind, after which another person was
elected to, and attempted to claim, the office. But it seems to me that that language and the
principles supporting it apply equally to cases where a person is elected to an office, but refuses
to accept that office for several months, and create potential problems for both the newly elected
city judge, and present occupant of the office.
With respect to the newly elected city judge, I suspect that if his right to hold office were
challenged after he waited several months to take office, he might have problems with his claim
to office. I can find no cases directly on that issue, but I think a good argument could be made
that the newly-elected city judge abandoned his office. Grace, above, appears to support such
an argument. It is also said in 3 McQuillin, Municipal Corporations, section 12-123, that:
An office may be vacated by abandonment. Abandonment may be
treated as a constructive resignation., e.g. where an alderman
refuses to attend the meetings of the council. A resignation by
implication may take place by abandonment of official duty without
leave of absence or without good cause shown. But what acts will
constitute abandonment or implied resignation of an office depend
upon the circumstances of the particular case and the controlling
law....Abandonment is ordinarily a question of intention that may
be inferred from acts or conduct, but mere nonuser of office or
employment may be insufficient. Thus, a mere failure to attend
regular meetings of the board does not per se constitute a
resignation of the office. The absence must be so long continued
to raise the presumption that the abandonment of office was
intended....
That language applies to cases in which the officers in question had already accepted their
offices, but for one reason or another did not perform the duties of those offices. The only
Tennessee case on abandonment of office, Kelley v. Woodlee, 133 S.W.2d 473 (1939),
declares that the intent to abandon office is essential to the finding of abandonment.
Unfortunately, the Tennessee Supreme Court in that case gave no guidelines on what reflects
an intent to abandon office.
Tennessee Code Annotated, section 8-48-101, prescribes when any office in the state is
vacant. Among those prescriptions is subsection (2): “The incumbent’s resignation, when
permitted by law.” [Subsection 2] Nothing in that statute appears to foreclose resignation by
abandonment of office, although certainly the question of whether a person can abandon an
office to which he has been elected but has not yet accepted, is one with which the courts would
need to wrestle. General Sherman is reported to had said with respect to talk about his running
for president, “If nominated I will not run. If elected I will not serve.” Surely, had he nonetheless
been elected and refused to take office, at some near point after the election the office could
have been considered abandoned without Sherman ever having taken it. In fact, Tennessee
Code Annotated, section 8-48-101(4), apparently contemplates such a situation. It provides that
one of the ways an office is vacated, is by “The decision of a competent tribunal, declaring the
election or appointment void or the office vacant.” There is obviously a difference between
General Sherman declaring that “If nominated I will not run. If elected I will not serve,” and a
newly-elected city judge declaring that, “If elected I will serve, but not until seven or eight months
after the election.” But the difference is one of degree, that Grace does not appear willing to
accept.
The potential problem with respect to the current occupant of the office of city judge is
that under Grace, he might not be a holdover after September 1. If that is true, his status as a
defacto judge might be questionable. It is said in State ex rel. Newsom v. Biggers, 9011 S.W.2d
715 (Tenn. 1995), that:
A judge who actively assumes the duties of his office after he has
been appointed by the governor of the state, or has been elected
by the people, is at least a de facto judge even though the facts
aliunde might disclose irregularities in the appointment or the
election.’ [Citation omitted.] >[A] judge de facto is a judge de jure
as to all parties except the state, and ...his official acts...are
binding on third persons and the public.’ [Citation omitted.] ....The
judicial acts of one in possession of a judicial office created and in
existence by law, under color of right, assuming and exercising the
functions of such office with a good faith belief in his right to
exercise such authority, invoked and acquiesced in by the parties,
the bar, court officials and the public, are those of a de facto
officer. [Citations omitted.] [At 718]
I am not sure that where a judge’s term has clearly expired there is the necessary “good
faith” to support the continuation of the judge in office as a de facto judge. It seems that his
jurisdiction would at least be regularly subject to challenge at the trial court stage. Newsom
suggests that even a de facto judge’s jurisdiction is subject to challenge at the trial court level:
The rationale underlying these cases [involving defacto officers] is
that it would subvert the ends of justice to invalidate the acts of a
judge who presided over cases with the consent of parties. In this
case, we recognize that even where there are constitutional
infirmities in the manner in which a judge took office, that judge
may still be deemed to be acting under color of authority as a de
facto judge until the infirmity can be remedied. We hold that
Judge Drake had, at a minimum, de facto authority to render the
judgment in the appellant’s case. [At 718]
In that case, observed the Court, the appellant had not made an objection to the judge’s
jurisdiction either during the trial phase in which he pleaded guilty or on direct appeal. For that
reason, concluded the Court, “he acquiesced to the court’s exercise of jurisdiction.” [At 719].
Where the person on trial makes such an objection the outcome is apparently different. I do not
know if any such objections to the city’s judge’s jurisdiction would arise in the City, but I
speculate they are more likely.
All things considered, it is my opinion that the wisest course for the newly elected city
judge is to take office on the prescribed date, September 1, 2000.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant