1 The Court did further “assume that police court judges recognize their obligation under Argersinger

v. Hamli n , [407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)] to inform defendants of the

ir right to a lawyer i

f a sentence of confinement is to be imposed.” North v. Russell , 427 U.S. at 335, 96 S.Ct. at 2712. The trial judge in the case sub judice found that the general sessions judge failed to secure from defendant an appropriate waiver of c ounsel. 

# FILED
June 09, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1997 SESSION

BARRY WELLS , ) ) Appellant, ) No. 02C01-9610-CV-00358 ) VS. ) Lauderdale County ) RONNIE RICKARD , ) Joseph H. Walker, III, Judge ) Appellee. ) (Habeas Corpus)

CONCURRING OPINION
I concur in the result reached by my colleagues but write separately to express my concern over the practic e of non-la wyer judges hav ing the authority to or

der the incarceration of adults.

I.

The majority correctly

notes that North v. Russell , 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976), found no federal constitutiona l im pediment to non-lawyer judgesincarcerating persons under the Kentucky two-tier trial court system. However, North noted that Kentucky’s two-tier system provided for the following: appeals which automatically vacated the convicti on by the non-lawye r judge; a trial de novo

even after
a plea of guilty in the c ou rt of the non -lawyer judge;the obligation of the non-law yer Kentuckyjudge to advise defendants of their unconditional rig ht to a de novo trial; the right of an appeal within thirty (30) days from the no n-lawyer judge’s conviction; and the right to totally by-pass the non-lawyer judge by tendering a guil ty plea and securing
a trial de novo

before a lawyer ju dge. 1 427 U.S. at 334-337, 96 S.Ct. a t 2712-13.2

These procedural safeguards are not applicable in Tennessee.

II.
Nevertheless, these limiting factors in North seem to have made little difference in other states where no constitutional vio lation was found. Although it has been
co ntended with occasional success that the use of non-lawyer judges is vio lative o f constitutio na l due proce ss, the wei ght of au thority ap pears to b e to the co ntrary, particularlywhen the defendant has a subsequent right to a trial de novo bef o re a lawyer judge. 21A Am.Jur.2d Criminal Law § 826 (1981) (citations omitted); see also State ex rel. Collins v. Bedell , 460 S. E.2d 6 36, 644-45 (W.Va. 1995) (citing sev eral
cases that have considered the issue); 71 A.L.R.3d 562 (1977). More recently, it has been recognized that it is questionable whether p roceedings before lay justices are consistent

with the demands of due process, and the constitutionality of this procedure is not fully resolved. C. Fieman, Do Nonlawyer Justices D ispense Justice?

, 69 N.Y. St. B. J. 20 (Jan. 1997).

III.

Undetermined in this state is the appli cability of Article I , § 8 of the Constitution of Tennessee to the issue of non-law yer judges incarce rating adults. State e x rel. Anglin v. Mitchell , 596 S.W.2d 779 (Tenn. 1980), found such a violation relating to the detention of juve niles.If Anglin is a proper interpretati on of Article I , § 8 of our Constitution, then I see no reason to l i mit its holding to juv eniles. Otherwise, a

nonlawy er judge on the first case on the docket could constitutional ly incarcerate a n eighteen-year

old adult misdemeanant to numerousconsecutive terms of 11 months and 29 days. Yet, the sa me non-lawyer judge on the next case on the docket could2 Some generalsessions courts also exercise juvenile jurisdiction. Tenn. Code Ann. §

37-1-203.

3 The majority opinion co rrectly notes tha

t North was applied in State v. Voltz , 62 6 S.W.2d291, 295-96 (Tenn. Cri m. App. 1981); however, Voltzconcerned a non-lawyer judge’s participation in a preliminary hearing, not incarceration. 3 not order the confinement of a seventeen-year old juvenile f or one da y. 2 Somehow, this logic escapes me. The Tennessee cases cited in the majo rity opinion rel at e to preliminary he arings and juvenile transfer hearings, not the rig ht to inc arcerate. 3 Furthermore, the references to the statutory authorization for non-law yer judges and the failur e of an attorney to qualify for the Lauderdale County ju dgesh ip are irrelevant to the constitutional issue.

IV.

In spite of the differences in the Tennessee two- tier system as compared to the Kentuckysystem examined in North , there appears to be little authority

elsewhere and
no Tennessee authority to suggest a federal constitutional violat ion. As to our state constitution, our Supreme Court has not spok en as to its appli cability to non-law yer judgesincarcerating adult mi sdemeanants. Yet, as noted by the majority, the Anglin holding has not been extended in its seventeen (17) y ear existence. In view of this history, I am reluctant to find a constitutional violation in spite of my personal view

s that due process is offended by s uch a practice.

JOE G. RILEY, JUDGE