FILED

October 12, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

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

LAWRENCE RAY WHITLEY, )

District Attorney General for the ) Supreme Court

Eighteenth Judicial District of the State of ) No. 01S01-9711-CH-00259

Tennessee, JOHN CARNEY, District )

Attorney General for the Nineteenth Judicial )

District of the State of Tennessee and )

STATE OF TENNESSEE, )

)

Appellees, )

)

AND )

)

TAYLOR (TED) EMERY, Sheriff for Robertson )

County, Tennessee; J.D. VANDERCOOK, )

Sheriff for Sumner County, Tennessee, )

)

Defendants. )

FOR APPELLANT: FOR AMICUS CURIAE: FOR APPELLEES:

City of White House NonLawyer General Whitley & Carney

David A mon ette Sessions Judges of John Knox Walkup

Gallatin, Tennessee Claiborne, Greene, Attorney General & Reporter

Lake and Obion Counties

Douglas T. Jenkins

Rogersville, Tennessee Michael E. Moore

Solicitor General

And

Gordo n W . Smith

W . Lewis Jenkins, Jr. Associate Solicitor General

W ILKER SON , GAU LDIN Nashville, Tennessee

& HAYES

Dyersburg, Tennessee

O P I N I O N

COURT OF APPEALS AFFIRMED. DROWOTA, J. 
1Ora l argu me nts w ere h eard in this c ase on April 2, 1 998, in Shelbyville , Bed ford Cou nty,

Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Legal Education for

Students ) project.

2

Tenn. Code Ann. §§ 6-101 & 6-134 (1971 Repl.) repealed in 1991 and replaced by Tenn.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.).

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In this appeal, we are confronted with the question of whether Article I,

Section 8 of the Tennessee Constitution precludes non-attorney judges from

presiding over trials of criminal offenses which are punishable by incarceration.1

We have determined that individuals charged with a criminal offense punishable

by incarceration are constitutionally entitled to have an attorney judge preside at

the trial. However, this right may be waived in a manner consistent with the

provisions of Rule 5(c), Tenn. R. Crim. P. The principles announced herein apply

to (1) all cases tried or retried after the date of this opinion, and (2) to all cases on

appeal in which the due process 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 and Robertson Counties. The

City was incorporated under a mayor and aldermanic charter in 1971 pursuant to

state law. 2 At the time of its incorporation, the enabling statutes did not provide for

a municipal judge, and in fact, provided that the mayor had “all the powers of a

justice of the peace within the municipality, for the purpose of keeping the peace

and trying offenses against any ordinance or the laws of the state.”3 In 1973, the
4

Tenn. Code Ann. § 17-123 (Supp. 1973). These statutes, as amended, are now codified

at Tenn. Code Ann. §§ 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 statute4

 to empower the governing body of a

municipality to establish the office of municipal judge by ordinance. The statute

did not prescribe specific qualifications for the office, but instead left the matter of

the judge’s qualifications to a city’s governing body.

From 1973 until 1988, the mayor and board of aldermen of White House

appointed various lawyers to serve as municipal judge. When the person serving

as municipal judge resigned in 1988, the mayor and board of aldermen, following

a practice common in other parts of the state, requested the general sessions

judges from Robertson and Sumner County to act as municipal judge for the City

of White House. The general sessions judge from Sumner County presided over

the cases arising in the part of the city located in Sumner County, and the general

sessions judge from Robertson County presided over the cases arising in the part

of the city located in Robertson County. Both these general sessions court judges

were licensed attorneys. This arrangement continued for two years, but from

1990 to 1994, the general sessions judge of Sumner County served as the sole

municipal judge for the City of White House. 

Upon her resignation in 1994, the Mayor and Board of Aldermen, pursuant

to state statutes,5 enacted an ordinance establishing a municipal court with a

popularly elected judge. The ordinance authorized the municipal judge “to

exercise jurisdiction concurrent with courts of general sessions in all cases
6

The qualif icatio n sec tion of the o rdina nce prov ides as fo llows : “Th e m unic ipal judge shall

be a resident of the City of White Hou se one year and a resident of Ten nessee five years

immediately preceding 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. degree from an accredited institution of higher

educa tion.”

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involving the violation of the criminal law of the State within the corporate limits of

the city....” The ordinance contained age, residence, and minimum education

requirements but did not require the municipal judge to be licensed to practice law

in Tennessee.6

In August of 1994, the residents of White 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 statutory

requirements to hold the office of municipal judge. However, Mr. Bobbitt is not a

licensed attorney.

Following his election, the appellees, District Attorneys General for the

Eighteenth and Nineteenth Judicial Districts, declined to prosecute in the White

House Municipal Court violations of state statutes occurring within the White

House city limits. Instead, they chose to prosecute 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 White House

Municipal Court might be a violation of due process because Judge Bobbitt was

not a licensed attorney. The concerns of the appellees were echoed by the

Tennessee Attorney General and Reporter who rendered a formal opinion on

June 16, 1994, stating that, as a non-attorney judge, Judge Bobbitt might be

disqualified by due process “from disposing of cases involving adults where such
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cases involve the possibility of incarceration or other deprivation of liberty.” Op.

Att’y Gen. U94-91 (June 16, 1994). The State Attorney General’s opinion was

based in large part upon a prior decision of this Court holding that non-attorney

judges may not consistently with due process preside over juvenile delinquency

hearings where the juvenile faces the possibility of confinement or other loss of

liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 791 (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 Robertson

County, to prosecute violations of state law occurring within the city limits, White

House city officials asked the district attorneys general to reconsider their position. 

When the appellees declined, the City of White House filed suit in Chancery Court

in Sumner County seeking declaratory and injunctive relief. 

Following oral argument, and after consideration of the facts as agreed

upon by the parties and the record, the trial court filed an opinion concluding that

neither the Constitution, nor statutes of Tennessee require municipal judges to be

licensed to practice law or learned in the law. Therefore, the trial court declared

that “[c]oncurrent jurisdiction and authority with courts of general sessions as set

forth in Title 40 in all cases of the violation of criminal laws of the State of

Tennessee within the limits of the municipality exists in the White House City

Court.” However, the trial court declined to issue a writ of mandamus directing the

district attorneys general to prosecute state warrant violations in the White House

Municipal Court, and also declared that the municipal judge had no authority to

order the Sumner County Sheriff to incarcerate prisoners in the absence of a
7

The Sheriffs o f Sum ner a nd R obertson Cou nties are n ot parties to this appeal.

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contract between White House and Sumner County.7

The district attorneys appealed the trial court’s judgment, and the Court of

Appeals reversed, concluding that Article I, Section 8 of the Tennessee

Constitution as interpreted by this Court in State ex rel Anglin v. Mitchell, supra,

prohibits non-attorney judges from presiding over 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 stated, we affirm the judgment of the Court 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. Miller, 149 Tenn. 463, 261 S.W. 965 (1924),

explained the concept of justiciable controversy under the Declaratory Judgment

Act as follows:

the only controversy necessary to invoke 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 person raising

it must have a real interest, and there must be some one having a

real interest in the question who may oppose the declaration 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 uncertainty

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.2d
8Recently, we granted the motion of the appellees to consider as post-judgment facts the

following: On August 6, 1998, Susan Johnson, a licensed attorney, was elected to the office of

W hite H ouse City J udge. Th ese facts do no t rend er this appe al m oot, h owe ver. T his ap peal

involves a question of great public importance which is likely to recur in that a considerable 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. Klein,

182 Tenn. 631 , 637, 188 S.W .2d 745 ( 1945); Dockery v. Dock ery, 559 S.W.2d 952, 954 (Tenn.

App. 1977).

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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

White House is not an attorney,8 yet the city ordinance grants to him jurisdiction

concurrent with courts of general sessions, including jurisdiction to preside over

criminal cases in which incarceration is a possible punishment. The Attorney

General of this State has opined that due process may preclude a non-attorney

judge “from disposing of cases involving adults where such cases involve the

possibility of incarceration or other deprivation of liberty.” In that opinion, the

Attorney General relied upon a published decision of this Court. The City of White

House has an interest in the outcome of this appeal because it directly affects the

scope of cases which can be decided by its municipal judge. The District Attorney

Generals have an interest in the outcome of this appeal as a result of their

statutory duty to prosecute violations of state criminal laws. At present, 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 conclude 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 trials of criminal offenses which are punishable by incarceration.

In this Court, the City of White House asserts that the Court of Appeals

erred in reversing the judgment of the trial court because the White House
9We recognize that municipal judges of cities having a population in excess of 160,000

under the 1980 census or any subsequent federal census must be authorized to practice law in the

courts of Tennes see. Tenn. Code Ann. § 17-1-106(d) (1994 R epl.).

-8-

Municipal Judge satisfies all constitutional and statutory 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 White House

Municipal Judge to be a licensed attorney as a condition of holding office,

nonetheless assert that Article I, Section 8 of the Tennessee Constitution prohibits

a non-attorney judge from presiding over a criminal proceeding which may result

in a citizen’s incarceration.

We agree with the appellees. There is no general statutory or

constitutional provision which mandates that a municipal judge be licensed to

practice law.9 The relevant statute requires a popularly elected municipal judge to

“meet the requirements established in article VI, § 4 of the Constitution of

Tennessee for judges of inferior courts.” Tenn. Code Ann. §16-18-202 (1994

Repl.). Article VI, Section 4 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. 

Therefore, neither the statute nor the Constitution require that a municipal judge 

be a licensed attorney as a condition of holding office. However, as recognized by

the appellees, the issue in this 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 constitutionally preside over the trial
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of criminal offenses which are punishable by incarceration.

As previously stated, the White House Municipal Court has criminal

jurisdiction “concurrent with courts of general sessions in all cases involving the

violation of the criminal laws of the State within the corporate limits of the city. . . .” 

Courts of general sessions are vested with jurisdiction to

try and determine and render final judgment in all misdemeanor

cases brought before the court by warrant or information wherein the

person charged with such misdemeanor enters a plea of guilty in

writing or requests a trial upon the merits and expressly waives an

indictment, presentment, grand jury investigation and jury trial. Such

waiver shall be in writing as provided in Rule 5 of the Tennessee

Rules of Criminal Procedure. 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, may inflict such

punishment within the limits provided by law for the particular

offense as the court may determine proper 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 incarceration. Tenn.

Code Ann. § 40-35-111(e) (1997 Repl.). Therefore, in virtually every state

misdemeanor case brought before the White House Municipal Court, the potential

for incarceration of the defendant exists.

In determining whether a non-attorney judge may preside over a criminal

trial potentially resulting in a deprivation of liberty, we begin with the language of

Article I, Section 8 

That no man shall be taken or imprisoned, 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.
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In State ex rel. Anglin v. Mitchell, supra, this Court concluded that an adjudication

of delinquency and a commitment to the Department of Corrections by a nonattorney judge violates the due process guaranteed by the “law of the land” portion

of this constitutional provision. In Anglin, this Court emphasized that “[d]ue

process of law is the primary and indispensable foundation of individual freedom,”

and the “basic and essential term in the social compact which 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, 1439-40, 18

L.Ed.2d 527 (1967)). As a result of its very important role in our society, due

process is not a static legal principle, but, in a free society, it is an advancing

standard consisting of those basic rights which are deemed reasonable and right. 

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 criminal defendants the right to representation 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 right to counsel becomes ‘as

sounding brass, or a tinkling cymbal’ if there is not a concomitant right to a trial

before a qualified judge.” Id., 596 S.W.2d at 788. While commending nonattorney juvenile judges for their conscientious efforts to address the complex

legal questions presented them for resolution, this Court stated that “good
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intentions are of no constitutional consequence” and concluded that due process

mandates a law trained judge preside over a delinquency proceeding involving a

deprivation of liberty. Id.

While Anglin involved a juvenile court adjudication of delinquency, the

rationale of that decision applies with equal force in the context of this appeal. As

this Court recognized in Anglin, a criminal defendant has a constitutional 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.Ed.2d 799 (1963). To require a lesser 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 Supreme 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 heard by counsel. Even the

intelligent and educated layman has small and sometimes no skill in

the science of law. If charged with crime, he is incapable, generally,

of determining for himself whether the indictment is good or bad. He

is unfamiliar with the rules of evidence. Left without the aid of

counsel he may be put on trial without a proper charge, and

convicted upon incompetent evidence, or evidence irrelevant to the

issue or otherwise inadmissible. He lacks both the skill and

knowledge adequately to prepare his defense, even though he have

a perfect one. He requires the guiding hand of counsel at every step

in the proceedings against him. Without it, though he be not guilty,

he faces the danger of conviction because he does not know how to

establish his innocence.

287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). Certainly, as we

recognized in Anglin, it is inherently inconsistent to guarantee the right to counsel

without also giving the defendant the right to have an attorney judge when the
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proceeding may result in a deprivation of liberty. Since our legal system regards

denial of counsel as a denial of fundamental fairness, it logically follows that the

failure to provide a judge qualified to comprehend and utilize 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, we recognize and commend the

valuable contribution which non-attorney judges have made to the administration

of justice in this State. Historically, compelling reasons existed for allowing

laypersons to act as judges. Communities were sparsely settled, transportation

was slow, communication was difficult, few lawyers were available, and the law

was not as complex as it is today. See Comment, “Constitutional Law - Due

Process - Permitting Non-Attorney Judges to Preside Over Criminal Trials in

Which the Offense 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 Court for Yuba Judicial District of Sutter County, 525 P.2d 72,

75 (Cal. 1974). The initial justifications permitting non-attorney judges to preside

over trials of criminal offenses punishable by incarceration, however, no longer

exist in modern society. There has been a vast increase in the number of

attorneys and tremendous improvements in transportation and communication. 

Furthermore, and perhaps most importantly, the increased complexity of criminal

law and criminal procedure has greatly enhanced the probability that a layperson

judge will be unable to deal effectively with the complexities inherent 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 Constitution guarantee to a
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criminal defendant on trial for an offense punishable by incarceration the right to

be tried before an attorney judge. See also Gordon, 525 P.2d at 74; State v.

Dunkerley, 365 A.2d 131 (Vt. 1976). 

In so holding, we reject the rationale of North v. Russell, 427 U.S. 328, 96

S.Ct. 2709, 49 L.Ed.2d 534 (1976), in which the United States Supreme Court

concluded that since, on appeal, a de novo trial before a lawyer was available, an

adult accused of a misdemeanor for which he may be imprisoned is not denied

due process of law under the federal constitution when he is initially tried before a

non-attorney judge. In this jurisdiction, an accused who is tried and convicted of a

criminal offense in a court exercising general sessions jurisdiction has the right to

a de novo appeal before an attorney judge in either the circuit or criminal court. 

Tenn. Code Ann. § 27-3-131 (1997 Supp.); § 27-5-108 (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 constitutional any

procedure whereby it is necessary that a citizen stand two trials in order to get one

fair trial.” Id., 589 S.W.2d at 790. In our view, a person accused of a criminal

offense punishable by incarceration is entitled to a determination of his status with

the full panoply of rights designed to achieve justice at the earliest hearing on the

merits. It is unreasonable to require an appeal in order to obtain access to all the

safeguards deemed essential for a fair trial. The second hearing will not only recreate anxiety, insecurity, and strain, but is likely to be time consuming, expensive,

and burdensome as well. Anglin, supra; Gordon, 525 P.2d at 77-78.
10Appro 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 fficials (1996).

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While we are bound by the interpretation given to the United 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 restrict the

protections afforded by the federal constitution, we may interpret the Tennessee

Constitution to impose higher standards and stronger protections. Miller v. State,

584 S.W.2d 758, 760 (Tenn. 1979). In accordance with our authority and

responsibility as the court of last resort in this State, we hereby hold that Article I,

Section 8 of the Tennessee Constitution guarantees to citizens of this State

accused of a criminal offense punishable 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 exercise other duties and

jurisdiction.10 Such judges may still function in civil cases and in criminal cases

not involving potential incarceration. Moreover, even in criminal cases where

incarceration may be imposed, a non-attorney judge may act so long as the

defendant waives the due process right to have the proceedings presided over 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 relinquish the right to an attorney judge by executing a

written waiver, consistent with the provisions of Rule 5(c), Tenn. R. Crim. P.,

governing waivers of the right to a trial by jury and to a grand jury investigation. 
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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 with the

provisions of Rule 5(c), Tenn. R. Crim. Pro., the non-attorney municipal judge 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 Appeals is

affirmed. The principles announced herein apply to (1) all cases tried or retried

after the date of this opinion, and (2) to all cases on appeal in which the due

process issue has been raised 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 Dissenting Opinion.