# FILED

October 12, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT NASHVILLE (HEARD AT SHELBYVILLE)

FOR PUBLICATION THE CITY OF WHITE HOUSE, ) Filed: October 12, 1998 ) Appellant, ) Hon. Tom E. Gray, ) Chancellor Vs. ) ) SUMNER CHANCERY LAWRENC E RAY WHIT LEY, ) District Attorney General for the ) Supreme Court Eighteenth Judicial Di strict of the State of ) No. 01S01-9711-CH-00259 Tennessee, JOHN CARNEY, District ) Attorney General for the Ni neteenth Judicial ) District of the State of Tennessee and ) STATE OF TENNESSEE, ) ) Appellees, ) ) AND ) ) TAYLOR (TED) EMERY, Sheriff for Robertson ) County, Tennessee; J.D. VAN DERCOOK, ) Sheriff for Sumner County, Tennessee, ) ) Defendants. )

FOR APP ELLAN T: FOR AMICUS CURIAE: FOR APPELLEES: City of White House NonLawyer General Whitley & Carney David A mon ette Sessions Judges of John Knox Walkup Gallati n, Tennessee Claiborne, Greene, Attorney General & Reporter Lake and Obion Counties Douglas T. Jenkins Rogersvill e, Tennessee Michael E. Moore Solici tor General And Gordo n W . Smith W . Lewis Jenkins, Jr. Associate Sol icitor General W ILKER SON , GAU LDIN Nashvill e, Tennessee & HAYES Dyersburg, Tennessee



## O P I N I O N

COURT OF APPEALS AFFIRMED. DROWOTA, J.1 Ora l argu me nts w ere h eard in this c ase on A pril 2, 1 998 , in Sh elbyville , Bed ford Cou nty, Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. ( S upreme C ourt A dvancing L ega l E ducation fo r S tudents ) project.

2 Tenn. Code Ann. §§ 6-101 & 6- 134 (1971 Repl.)repealed i n 1991 and replaced by Tenn. Code Ann. §§ 6-1-1 01 through 6-4-402 (1992 Repl. & Supp. 1997).

3 Tenn. Code A nn. § 6-132 (1971 Rep l.). -2- In this appeal, we are co nfronted with the question of whether Article I, Section 8 of the Tennessee Constituti on precludes non-attorney judges from presiding over tr

ials of criminal offenses whi ch are punishable by inca rceration. 1 We have determined that ind ividuals charged with a criminal offense punishable by incarceration are constitutionally entitled to have an attorney j udge preside at the trial. Howev

er, this right may be waived in a manner co nsistent with the provisions of Rule 5(c), Tenn. R. Crim. P. The principles announced herein ap ply to (1) all cases trie

d or retried after the date of this opinion, and (2) to all c ases on appeal in which the due pro cess issue has been raised in the trial court and preserved as a ground for appeal. Accordingly , the judgment of the Court of Appeals is affirmed.

BACKGROUND The City of White House lies in both Sumner an d Robertson Counties. The City was incorp

orated under a mayor and alder manic charter in 1971 pursuant to state law. 2 At the time of its incorporation, the enabling statutes di d not provide for a munici pal judge, and in fact, pr ovided that the mayor h ad “all

the pow ers of a justice of the peace within the municipality, for the purpose of keeping the peace and trying offenses against any ordinance or the law s of the state.” 3 In 1973, the4 Tenn. Code Ann. § 17-123 ( Supp. 1973). These st atutes, as amended, are now codifi ed at Tenn. Code A nn. §§ 16-18-101 & 16-1 8-102 (1994 Rep l.).

5 Tenn. Code A nn. §§ 16-18-201 through 16 -18-207 (1994 Rep l.). -3- General Assembly enacted a s tatute 4 to empow

er the g overni ng body

of a municipality to establi sh the office of municipal judge by ordinance. The statute did not prescribe specific qualifications for the office, but i nstead left the matter of the judge ’s qualif ications to a city’s go verning bo dy.

From 1973 until 1988, the mayor and board of alderm en of White House appointed various law

yers to serve as muni cipal judge. When the person servin g as municipal judge resi gned in 1988, the mayor and boar d of aldermen, following a practice common in other part s of the state, requested the g eneral sessions judges from Robertson and Sumner C ounty to act as municipal j udge for the City of White House. The general sessions judge from Sumner County presided ov er the cases arising in the part of the city located i n Sumner County, and the gener al sessions judge from Robertson County presided over the cases arising in the part of the city located in Rober tson County. Both these g eneral sessions court ju dges were licensed attorney s. This arrangement continued for two years, but from 1990 to 1994, the general sessions judge of Sumner Coun ty served as the sole municipal judge for the Cit y of White House.

Upon her resignation in 1994, the Mayor and Board of Alde rmen, pursuant to state statutes, 5 enacted an ordinance establish ing a municipal court w ith a popularly elected judge. The ordinance authorized the municipal judge “to exercise jurisdic

tion concurrent with c

ourts of general sessions in all cases6 The qualif icatio n sec tion o f the o rdina nce prov ides as fo llows : “Th e m unic ipal ju dge shall be a resident of the City of White Hou se one year and a resident of Ten nessee five years immediately pr

eceding his/

her election and at least 30 years of age. In addition, the municipal judge shall

be a graduate, with a B. S./B.A. d egree from an accredit ed institutionof higher educa tion.” -4- involving the v

iolation of the criminal law of the State within the corpo rate limits of the city....” The ordinance contained age, residence,and minimum education requirements but did not r equire the municipal judge to be licensed to practic e law in Tennessee. 6

In August of 1994, the residents of W hite House elected Charles R. Bobbitt, Jr., to the office of municipal judge. The parties to this appeal stipulated in the trial court that Mr. Bobbitt meets all state constitutional and statu tory requirements to hold the office of munic ipal judge. Howev

er, Mr. Bobbitt is not a licensed attorne y.

Following his el ection, the appellees, Dist rict Attorneys General for the Eighteenth and Nineteenth Judic ial Districts, decl ined to prosecute in the White House Municipal Court v iolations of state statutes occurring within the White House city limits. Instead, they chose to pros ecute these cases in the General Sessions Courts of Robertson or Sumner Counties. The appellees’ decision was based upon a concern that prosecuting state warrants in the W hite House Municipal Court might

be a violation of due process because Judge Bobbitt was not a licensed attorney. The concerns of the appellees wer e echoed by the Tennessee Attorney General and R eporter who rendered a formal opinion on June 16, 1994, stating that, as a non-attorney judge, Ju dge Bobbitt might be disqualified by due process “from disposing of cases involving adults where such-5-

cases involve the pos

sibility of incarcer

ation or other deprivati on of liberty.” Op. Att’y Gen. U94-91 (June 16, 1994). The State Attorney Ge neral’s opinion was based in large part upon a pr ior decision of this Court holding that non-attorney judges may not consistently with due process preside over juvenile delinquency hearings where the j uvenile faces the possibil ity of confinement or other loss of liberty. State ex rel. Anglin v. Mitchell , 596 S.W.2d 779, 79 1 (Tenn. 1980).

Preferring to avoid the time and expense of requiring their city police officers to travel to either Gallatin, in Sumner County, or Springfield, in Robe rtson County, to prosecute v iolations of state law occ urring within the city limits, White House city officials ask ed the district attorney

s general to reconsider their position. When the appellees de clined, the City of White House filed suit in Chancery Court in Sumner County seeking declaratory and injunc tive relief.

Following oral ar

gument, and after consideration of the facts as agreed upon by the parties and the r ecord, the trial court fil ed an opinion concluding that neither the Constitution, nor statutes of Tennessee require muni cipal judges to be licensed to practice law or learned in the law.Therefore, the trial court dec lared that “[c]oncurrent juri sdiction and authority w ith courts of general sess ions as set forth in Title 40 in all cases of the violation of criminal laws of the State of Tennessee within the limit s of the municipality ex ists in the White House City Court.” However, the trial court decli ned to issue a writ of mandamus d irecting the district attorneys general to prosecute state warrant violations in the White House Municipal Court, and als o declared that the municipal j udge had no authority to order t he Sumner

County Sheriff t o incar cerate p risoner

s in the absence

of a7 The She riffs o f Sum ner a nd R obe rtson Cou nties are n ot pa rties to this a ppe al. -6- contract between W hite Hous e and Sum ner Count y. 7

The district attorneys appealed the trial court’s judgment, and the Court of Appeals reversed, concl uding that Article I, Sec tion 8 of the Tennessee Constitution as interpret ed by this Court in State ex rel Anglin v. Mitchell , supra , prohibits non-attorney judges from presiding ov er the trial of a defendant for an offense punishable by incarceration. Thereafter, we granted the City of White House permission to appeal to decide this important issue of constitutional law. For the reasons herein stat ed, we affirm the judgment of the Cour t of Appeals.

DUE PROCESS Before addressing the central issue in this appeal, we will briefly address the contention of the amicus curiae that this appeal does not present a justiciable controversy. This Court in Miller v. Mil ler , 149 Tenn. 463, 261 S.W . 965 (1924), explained the concept of justi ciable controversy under the Declaratory Judgment Act as follows: the only controversy

necessary to invok

e the action of the court and have it to declare rights under our declaratory judgment statute is that the question must be real , and not theoretical; the pers on raising it must have a real interest, and th ere must be som e one having a real interest in the que

stion who may oppose the dec laration sought. It is not necessary that

any breach should be first committed, any right invaded, or wrong done. The purpose of the act, as expressed in section 12 thereof, is to ‘settle and to afford relief from uncertai nty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.’ 261 S.W. at 972; see also Cummings v. Beeler , 189 Tenn. 151, 156, 223 S.W.2d8 Recently,we granted the motion of the app ellees t o consider as post

-judgment facts the followi ng: On August 6, 1998,Susan Johnson, a li censed attorney, was elected to the office of W hite H ous e City J udg e. Th ese facts do no t rend er this appe al m oot, h owe ver. T his ap pea l involv es a question of

great publ ic importance whi ch is li kely to recur in t hat a consider able number of the m unicipal an d gene ral sess ions judg es in Te nness ee are n on-lawyer s. McC anles s v. K lein , 182 T enn. 631 , 637, 188 S.W .2d 745 ( 1945); Dockery v. Dock ery , 559 S.W.2d 952, 954 (Tenn. App. 1977). -7- 913, 915 (1949). Applying that test, we conclude that this appeal presents a justiciable controversy. The issue is real not theoretical. The municipal judge in Whit e House is not an at torney, 8 yet the city ordin ance grants to him juris diction concurrent with court

s of general sessions, inc luding jurisdiction

to preside over criminal cases in w

hich incarceration is a possible punishment. The Attorney General of this State has opined tha t due process may preclude a non-attorney judge “from disposing of cas es involving adul

ts where such cases i nvolve the possibility of incarc

eration or other depriv

ation of liberty.” In tha

t opinion, the Attorney General reli ed upon a published decision of this Court. The City of White House has an interest in the outcome of this appeal because it dir ectly affects the scope of cases which can be decided by its municipal judge. The District At torney Generals have an interest in the outcome of this appea l as a result of their statutory duty to pros

ecute violations of state cr iminal laws. At pres

ent, it is not clear whether that duty can be constitutionally fulfilled by prosecuting cases in the White House City Court. For all these reasons we conclud e that this appeal presents a justiciable controversy. Therefore, we will now consider whether Article I, Section 8 of the Tennessee Constitution precludes non-attorney judges from presiding over tr

ials of criminal offenses whi ch are punishable by inca rceration.

In this Court, the City of White House asserts tha t the Court of Appeals erred in reversing the judgment of the trial court because the W hite House9 We recognize that munici pal judges of citi es having a popul ation i n excess of 160,000 under the 1980 census or any subsequent f

ederal census must be aut horized t o practice law in t he courts of Tennes see. Tenn. Code Ann. § 17-1-106(d) (1994 R epl.). -8- Municipal Judge satis

fies all constitutional and s tatutory requirements to hold the office, which do not include being licensed to practice law. The appellees, while agreeing that no statute or constitutional provision requires the W hite House Municipal Judge to be a l icensed attorney as a condi tion of holding office, nonetheless assert that Arti cle I, Section 8 of the Tennessee Cons titution prohibits a non-attorney judge from presiding over a criminal proceeding which may result in a citizen’s incar

ceration.

We agree with the appellees. There is no general statutory or constitutional provis ion which mandates that a munic ipal judge be licensed to practice law. 9 The relevant statute req uires a popularly elec ted municipal judge to “meet the requirements establ ished in article VI, § 4 o f the Constitution of Tennessee for judges of inferior cour ts.” Tenn. Code Ann. §16-18-202 ( 1994 Repl.). Article VI, Section 4 provides that the Judges of the Circuit and C hancery 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 electi on, have been a resident of the State for five y ears and of the circuit or di strict one year. His term of serv

ice shall be eight y

ears. Therefore, neither the statute nor the Constitution requir e that a municipal judge be a licensed attorney as a condition of holding office. How ever, as recogniz

ed by the appellees, the issue in th is appeal is not whether a municipal judge must be a licensed attorney as a condition of holding the office. Instead, the issue is whether a non-attorney municipal judge may cons titutionally preside over the trial-9-

of criminal offenses which are punishable by incarcer ation.

As previously stat

ed, the White House Municipal Court has criminal jurisdiction “concur

rent with courts of gene ral sessions in all c ases involving the violation of the criminal laws of the State within the corporate limits of the city. . . .” Courts of general sessions are vested with ju risdiction to try and determine and render final judgment in all misdemeano r cases brought before the court by warrant or information wherein the person charged with such misdemeanor enters a plea of guilty in writing or req uests a trial upon the merits and expressly w

aives an indictment, presentment, grand jury investigation and jury trial. Such waiver shall be i n writing as prov ided in Rule 5 of the Tennessee Rules of Criminal Procedur e. In such cases, the trial shall proceed before the court without the intervention of a jury, and the court shall enter such judgment, and, as an incident thereto, ma y inflict such punishment within the limi ts provided by law

for the particular offense as the court may determine pr oper under the peculiar circumstances of such case. Tenn. Code Ann. § 40-1-109 (1997 Repl .). Except as specifically provided by statute, all state misdemeanor offenses are punishable by incarc eration. Tenn. Code Ann. § 40-35-111(e) (1997 Repl.). Therefore, in vi rtually every state misdemeanor case brought before the White House Municipal Court, the potenti al for incarceration of the defendant exists.

In determining whether a non-attorney judge may preside over a crimi nal trial potentially r

esulting in a depriv

ation of liberty, we begin with the language of Article I, Section 8

That no man shall be taken or impri soned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.-10-

In State ex rel. Anglin v. Mitchell , supra , this Court concluded that an adjudication of delinquency and a commitment to the Department of Corrections bya nonattorney judge viol ates the due process guarantee d by the “law of the land” portion of this constitutional prov ision. In Anglin , this Court emphasized that “[d]ue process of law is the pr imary and indispensable foundati on of individual freedom,” and the “basic and essential term in the social compact w hich defines the rights of the individual and delimits the powers which the state may exercise.” Id ., 596 S.W.2d at 785, (quoting In re Gault , 387 U.S. 1, 20, 87 S.Ct. 1428, 143 9-40, 18 L.Ed.2d 527 (1967)). As a res ult of its very impor tant role in our society, due process is not a static l egal principle, but, i n a free society, it is an advancing standard consisting of those basic rights whi ch are deemed reasonable and rig ht. Id ., 596 S.W .2d at 785-86, (citing Wolf v. Colorado , 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949)).

While recognizing in Anglin that, historically, the due process right to a fair trial in a fair tribunal did not include the right to an attorney judge, this Court emphasized that the due process right to a fair trial

had advanced to guarantee to adult and juvenile cri minal defendants the right to r epresentation by counsel. Id ., 596 S.W.2d at 786-88 . In concluding that due process had also necessarily advanced to guarantee the right to an attorney judge in a delinquency adjudication, this Court explained that “[t]he ri ght to counsel becomes ‘as sounding brass, or a tin kling cymbal’ if ther e is not a concomitant rig ht to a trial before a qualified judge.” Id ., 596 S.W.2d at 788. While commending nonattorney juvenile j udges for their conscienti ous efforts to address the complex legal questions prese nted them for resolution, this C ourt stated that “good-11-

intentions are of no constitutional consequence” and concluded that due process mandates a la w trained judge pres ide over a delinque ncy proceeding invol ving a deprivation of liberty

. Id

.

While Anglin involved a juveni le court adjudication of deli nquency, the rationale of that decision appli es with equal force in the context of this appeal. As this Court recogniz

ed in Anglin , a criminal defendant has a consti tutional right to representation by a legally qualified attorney

. Argersinger v. Hamlin , 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.E d.2d 799 (196 3). To require a les ser standard of a judge presiding over the trial of a criminal offense punishable by incarceration would defeat the constitutional purpose of the right to counsel. With respect to the importance of the right to counsel, the United States Sup reme Court stated in Powell v . Alabama , The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be he ard by counsel. Even the intelligent and educated layman has small and sometimes n o skill in the scien ce of law. If charge d with crime , he is inca pable, ge nerally, of determining for himself whether the indictmen t is good or bad. He is unfamiliar with the r

ules of evidence. Left with out the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent ev idence, or evidence ir

relevant to the issue or otherwise i nadmissible. He lacks both the skill and knowledge adequate ly to prepa re his def ense, eve n though h e have a perfect one. He requires the guiding hand of counsel at every step in the pro ceedings against h im. W ithout it , though h e be not gu ilty, he faces the danger of convicti on because he does not know how to establish his innocence. 287 U.S. 45, 68-69 , 53 S.Ct. 55, 64, 7 7 L.Ed. 1 58 (1932 ). Certain ly, as we recognized in Anglin , it is inherently i nconsistent to guarantee the r ight to counsel without also giv

ing the defendant the right to have an attorney judge when the-12-

proceeding may result in a deprivation of liber ty. Since our legal

system regards denial of counsel as a denial of fundamental fairness, it logicall y follows that the failure to provide a judge qualified to comprehend and util ize counsel’s legal arguments likewise is a denial of due process.

By so stating, we do not suggest that a fair trial is impossible in a court presided over by a non- attorney judge. Indeed, w e recognize and commend the valuable contribution w hich non-attorney judg es have made to the administration of justice in this State. H istorically, compel ling reasons exist ed for allowing laypersons to act as ju dges. Communities wer e sparsely settled, tr

ansportation was slow, communicati on was difficult, few law yers were avai lable, and the law was not as complex as i t is today. SeeComment, “Constitutional Law - Due Process - Permitting Non-Attorney Judges to Preside Over Criminal Trials in Which the Offe nse is Punishable by a Jail Sentence Violates Defendants’ Fundamental Right to a Fair Trial,” 28 Van.L.Rev. 421 , 423-34 (1975); see also Gordon v. Justice Cour t for Yuba Judicial Dis

trict of Sutter County , 525 P.2d 72, 75 (Cal. 1974). The initi al justifications permitti ng non-attorney judges to preside over trials of crimi nal offenses punishable by incar ceration, however, n o longer exist in modern society. There has been a vast incr ease in the number of attorneys and tremendous impr ovements in transportation and communication. Furthermore, and perhaps most i mportantly, the increased complexity of criminal law and criminal proc

edure has greatly enhanc ed the probability that a l ayperson judge will be unable to deal effectively wi th the complexities inher ent in a criminal trial. In light of these societal and legal changes, we hold that the due process protections of Article I, Section 8 of the Tennessee Constituti on guarantee to a-13-

criminal defendant on trial for an offense punishable by incarcer ation the right to be tried before an attorney j udge. See also Gordon , 525 P.2d at 74; State v. Dunkerley , 365 A.2d 131 (Vt. 1976).

In so hol ding, w

e rejec t the rationale o

f North v. Russell , 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976), in which the United States Su preme Court concluded that since, on appeal, a de novo trial before a law yer was avail able, an adult accused of a misdemeanor for w hich he may be imprisoned i s not denied due process of law under the feder al constitution when he i s initially tri ed before a
non-att orney j udge. I n this j urisdi ction, an accuse d who is tried and convicted of

a criminal offense in a court ex ercising general s

essions jurisdiction has the right to a de novo appeal before an attorney judge in either the cir

cuit or criminal court

. Tenn. Code Ann. § 27-3-131 (1997 Supp.); § 27-5-1 08 (1980 Repl.); Tenn. R. Crim. P. 5(c). In our view, the due process violation resulting

from the lack of an attorney judge is not cured by the statutory right to a de novo appeal. As this Court stated in Anglin , “[w]e cannot countenance and classify as constituti onal any procedure whereby it is necessary that a c itizen stand two tr

ials in order to get one fair trial.” Id ., 589 S.W.2d at 790. In our view, a per son accused of a criminal offense punishable by incarceration is entitled to a determi nation of his status with the full panoply of rights designed to achieve jus tice at the earliest heari ng on the merits. It is unreasonable to require an appeal in or der to obtain access to all the safeguards deemed essential for a fair trial. The second hearing will not only r

ecreate anxiety, ins

ecurity, and strain, b ut is likely to be ti me consuming, expensiv e, and burdensome as well. Anglin , supra ; Gordon , 525 P.2d at 77-78.10 Appro xima tely twenty-two g eneral se ssions court jud ges in T ennes see are not license d to practice law. In addition , approx imately se venty-five m unicipal co urt judge s are no t licensed to practice law. Mun icipal Tec hnical Ad visory Serv ice, Unive rsity of Ten nesse e, Directory of Ten nes see Mun icipal O fficia ls (1996). -14- While we are bound by the interpretation given to the Unite d States Constitution by the Supreme Court of the United States, as to Tennessee’s Constitution, we sit as the court of last resort. Although we may not r estrict the protections afforded by the federal c onstitution, we may i nterpret the Tennessee Constitution to impose hig her standards and stronger protections. Miller v. State , 584 S.W.2d 758, 760 (Tenn. 1979). In accordance wi th our authority and responsibility as the court of last resort in this State, we hereby h old that Article I, Section 8 of the Tennessee Constituti on guarantees to citiz ens of this State accused of a criminal offense punisha ble by incarceration the right to a trial before an attorney judge.

By so stating, we

do not hold that municipal or general sessions judges must be licensed attorneys to hold office or to exercis e other duties and jurisdiction. 10 Such judges may stil l function in civil c ases and in criminal cases not involving potential incarceration. Moreover, even in criminal cases where incarceration may be impos ed, a non-attorney judge may act so long as the defendant waives the due proc ess right to have the p roceedings presided ov er by an attorney judge. See Gordon , 525 P.2d at 79; Shoemaker v. State , 375 A.2d 431, 442 (Del. 1977); Treiman v. State , 343 So.2d 819, 824 (Fla. 1977). The defendant may voluntarily relinqu ish the right to an attorney judge by exec uting a written waive r, consistent with th e provisions of Rule 5(c ), Tenn. R. Crim. P., governing wai

vers of the right to a t rial by jury and to a grand jury inv estigation.-15- CONCLUSION Applying the foregoing

principles to the facts of this appeal, we conclude that, in the absence of a written waiver by a criminal defendant consistent w ith the provisions of Rule 5(c

), Tenn. R. Crim. Pro., the non-attorney municipal j udge of the City of White House has no authority to preside over trials of criminal offenses punishable by incarceration. Accordingly, the judgment of the Court of Appea ls is affirmed. The principles announced her ein apply to (1) all cases tried or retried after the date of this opinion, and (2) to all cases on appeal in w hich the due process issue has been rai sed in the trial court and preserved as a ground for appeal.

__________________________________ FRANK F. DROWOTA, III, JUSTICE

CONCUR: Anderson, C.J. Birch, J. and Russell, Sp.J. Holder, J. - Separate Di ssenting Opinion.