MEMORANDUM
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 Millington 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 Millington City Charter for the election of
the city judge, but ' 3-101 of the Millington Municipal Code provides for the election of the city
judge for an eight year term, and ' 3-105 of the Millington 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
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Page 2
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.
February 27, 2006
Page 3
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
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Page 4
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,
February 27, 2006
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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 CountyBthe 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
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Page 6
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]
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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.
February 27, 2006
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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]
February 27, 2006
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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.