# FILED
October 12, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

THE CITY OF WHITE HOUSE, ) ) APPELLANT, ) ) v. ) NO. 01S01-9711-CH-00259 ) LAWRENC E RAY WHIT LEY, ) District Attorney General for the ) Eighteenth Judicial Di strict of the ) State of Tennessee, JOHN CARNEY, ) District Attorney General For the ) Nineteenth Judicial Dis trict of the ) State of Tennessee and ) STATE OF TENNESSEE, ) ) APPELLEES, ) ) AND ) ) TAYLOR (TED) EMERY, Sheriff for ) Robertson County, Tennessee; ) J.D. VANDERCOOK, Sheri ff for ) Sumner County, Tennessee, ) ) DEFENDANTS. )



### DISSENTING OPINI ON
I respectfully dissent fro m the majority’s opinion.The legislature has set forth the requirements for judges. While a rule mandating attorney muni cipal judges may be desirable,no provision of either the state or federal constitution requires attorney j udges. Mere disagree ment with legislati ve mandate is neither a sufficient reason for this Cour t to redraft legislation nor a sufficient reason for this Court to redefine the Tennessee Constitution. The policy rejected as unconstitutional by the maj ority was not only the norm when the constitution was drafted, but also has passed federal c onstitutional muster in North v. Russell , 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (19 76). Accordingly, I would hold that this area is purely

one of legislative pre rogative and reserv ed for the voting public. I further disagr

ee with the majority

's holding that rules de

signed to2 eliminate practices which deprive accused of their fundament al right to fair trials should n ot be app lied retro actively.

CONSTITUTIONALITY
The majority's holding

is premised on the language of Tenn. Const. Art. 1, § 8 which provides:
That no man shall be taken or imprisoned, or disseized of his freehold, liberties or pri vileges, or outlaw

ed, or exiled, or in any manner destroyed or depriv ed of his life, liberty or

property, but by the judgment of his peers or the law of the land.
The majority holds that the “law of the land” provision of Article 1, § 8 now requires attorney judges. The majority’s rationale for re-defining due process is that “[t]here has been a vas t increase in the number of attorn eys and tremendous improvements in tr ansportation and communication."

This Court has consistentl y held that the due process clause of the state constitution is identical in scope and purpose with that of the federal constitution. See State v. Hale , 840 S.W.2d 307 (Tenn. 1992) (holding "'the law of the land,' used in the [Article 1, § 8 of the Tennessee Constitution], and the p hrase, 'due process of law,' used in [the federal constitution], are synonymous phrases meaning one an d the same thin g.") (citing Dearborne v. State , 575 S.W.2d 259 (Tenn. 1978); Daugherty v. State,393 S.W.2d 739 (Tenn. 1965); Kittrell v. Kittrell , 409 S.W.2d 179 (Te nn. 1966)).
The majority, however, rejects the well- reasoned opinion of the United States Supreme Court in North v. Russell , 427 U.S. 328 (1976), which is directly on point with the case now before us. In North , the United States Supre me Court addressed the question of "whether an accused, subject to possible1 The Court of Criminal Appeals, i n addressing t he issue now befor e us, noted t hat "[t

]he Supreme Court in Ang lin took great pains to distinguish the application of North to juv enile proceedings and adul t proceedin gs. . . .The differences between Nor th v. R uss ell and the case at bar are gl aring. .. ." The Court of Criminal Appeals adopted the holding of the Unit ed States Supreme Court in Nor th v. R uss ell and h eld th at the statu te wa s co nstitu tiona l.

2 Presu mab ly, Nor th v. R uss ell was disti nguished because t he "law of the land" pr ovision mirrors federal du e proce ss. State v. Ha le , 840 S.W .2d 307 (Tenn. 1992).

3 The lower court held that the righ t to counsel

had been knowingly and voluntarily

waived. 3 imprisonment, is denied due process when tried before a non lawyer police court judge with a later trial de novo available." In North , defendants appearing before the municipal or "police cour t": (1) had a right to a trial de novo; (2) had thirty days within whi ch to perfect an appeal; (3) w ere generally charged with violations of traffic law

s; and (4) faced sentences of less than one year. The United States Supreme Court r ejected the defendants' argument that “the increased complexity of substantive and procedural criminal law requires that all judges now be lawyers.” Id . at 2712 . The Cou rt held that an a

dult accused of a misdemeanor is not denied due proc ess under the federal constituti on when initially tried befor

e a non-attorney judge. The C ourt reasoned that the defendant was "afforded an opportunity to be tried de novo in a court presided over by a lawyer-judge since an appeal automatically vacates the conviction in police court." Id

.
The majority relies upon the reasoning in State ex rel. Anglin v. Mitchell , 596 S.W.2d 779 (Te nn. 1980), and the doctrine of stare decisis despite this Court’s assertion in Anglin that North was distinguishable from and inapplicable to the facts in Anglin

. 1 See id . at 791 (h olding, " We do not view North v. Russell as being applicable to the case at bar."). 2 In Anglin , two juveniles ch arged with third degree burglar

y and profanity were

tried before a lay judge and without benefit of counsel 3 . This Court in Anglin distinguished Anglin from North v. Russell on the basis that:4 The ma jority ho lds th at no n-att orne y judg es m ay still co nstitu tiona lly pres ide ov er "civ il case s and in crim inal cas es no t involving poten tial incarc eration ." Pres um ably, the m ajority's holdin g wo uld pr ohibit non- attor ney ju dge s fro m p resid ing ov er m ost tra ffic vio lation s co dified in the Te nness ee Co de Ann otated. See Tenn. Code Ann. § 55-8-1 38 ("Pedestrians on Roadways" defined as a Cl ass C misdemeanor); Tenn. Code Ann. §§ 55-8- 146, -147 (def ining as misdemeanors the fail ure the to st op at rai lroad crossi ngs); Tenn. Code Ann. § 55-8-149 (st ating Class C misdemeanor for fail ure to stop a t a stop si gn); Tenn. Code Ann. § 55-8-152, - 154 (classif ying violati ons of speed li mit laws as misdemeanors); Tenn. Code Ann. §§ 55-8-160 (defining prohibited parking violations as Class C misdem eanors). 4 1. the juveniles in Anglin did not have a de novo ri ght of appeal; 2. the juveniles' sentences went into immediate effect; 3. the juveniles faced felony c harges carrying

"loss of liberty for from seven to eight year s"; and 4. the juveniles had five day s in which to perfect an appe al as opposed to thirty days.

Id . at 790-91. This Court found North to be inap plicable based on the above factors and held that juvenil e judges must be licensed l awyers "to make any disposition of a juvenile that operates to confine him or depr ive him of his liberty." Id . at 791.
In the case now before us, the maj ority's primary concern is the ability

of non-attorney municipal and general session judges to preside over misdemeanor cases "where incarcer

ation may be imposed." 4 In misdemeanor cases, defendants are: (1) entitled to de novo appeals; (2) have thirty days within which to perfect a de novo appeal; and (3) face a maximum se ntence of eleven months and twenty-nine day s. I would, therefore, hol d that Anglin is inapplicable to the case now before us for the s ame reasons the majority i n Anglin held that North was inapplicable to Anglin . I would further hold that it is for the legislature and not for this Court to redr aft the requirements for holding office as judge. The5 The distin ction betw een incar cera tion a nd no n-inc arce ration is ten uou s if the ma jority is declari ng that non-a

ttorney judges are genera lly incapable o

f conductingfair t rials.An indiv idual seeking compensation for a civil wrong has just as much right to a f air trial as an i ndividual accused of a minor tr affic vi olati on. 5 effect of the majority's opinion, however, is to redraft the const itution to reflect the majority's notions of fundamental f airness. 5

PROSPECTIVE APPLICATION
While the majority found that a rule allow ing non-attorney judges to preside over misdemeanor cases is a denial of due process and f undamentally unfair, the majority has declined to apply its new constitutional pronouncement retroactively. Were I to agree with the majority's due process analysis, I would apply the new rule retroactively under this Court's standard enunciated in Meadows v. State , 849 S.W.2d 755 (Te nn. 1995).

In Meadows , this Court held that a new constitutional rule shal l be applied retroactively i n post-conviction proc eedings if the new rule "mat erially enhances the integrity and rel iability of the fact finding process of the trial" and "rai ses serious questions about the accuracy of guilty

verdicts in past tr

ials." Id . at 754. Clearly, under the Meadows standard, a new rule desi gned to eliminate a practice held to prohibit a defendant from obtaining a fair, rel iable and accurate trial sho uld be ap plied ret roactivel y.
Municipal and general sessions judges are the exclusive finders of fact in cases before their courts. The majority has held that per mitting non-attorney judges to preside over

criminal matters raise

s serious constitutional questions concerning the accuracy and reliability of cr

iminal trials. The majori ty states that it "cannot countenance and classify as constitutional an y procedure whereby it is necessary that a citiz

en stand two trials to get one fair trial." I, th erefore, question the majority's decision to refuse retroac tive application of the new6 constitutional rule w

hen the majority holds that the "old rule" denies a citizen the right to a fair trial.

JANICE M. HOLDER, JUSTICE