IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE FILED October 12, 1998 THE CITY OF WHITE HOUSE, ) ) APPELLANT, ) Cecil W. Crowson ) Appellate Court Clerk v. ) NO. 01S01-9711-CH-00259 ) LAWRENCE RAY WHITLEY, ) District Attorney General for the ) Eighteenth Judicial District of the ) State of 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. )
DISSENTING OPINION
I respectfully dissent from the majority’s opinion. The legislature has set
forth the requirements for judges. While a rule mandating attorney municipal
judges may be desirable, no provision of either the state or federal constitution
requires attorney judges. Mere disagreement with legislative mandate is neither
a sufficient reason for this Court to redraft legislation nor a sufficient reason for
this Court to redefine the Tennessee Constitution. The policy rejected as
unconstitutional by the majority was not only the norm when the constitution was
drafted, but also has passed federal constitutional muster in North v. Russell,
427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976). Accordingly, I would hold
that this area is purely one of legislative prerogative and reserved for the voting
public. I further disagree with the majority's holding that rules designed to eliminate practices which deprive accused of their fundamental right to fair trials
should not be applied retroactively.
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 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.
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 vast increase in the number of attorneys and
tremendous improvements in transportation and communication."
This Court has consistently 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 phrase, 'due
process of law,' used in [the federal constitution], are synonymous phrases
meaning one and the same thing.") (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 (Tenn. 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 Supreme
Court addressed the question of "whether an accused, subject to possible
2 imprisonment, is denied due process when tried before a nonlawyer police court
judge with a later trial de novo available." In North, defendants appearing before
the municipal or "police court": (1) had a right to a trial de novo; (2) had thirty
days within which to perfect an appeal; (3) were generally charged with
violations of traffic laws; and (4) faced sentences of less than one year. The
United States Supreme Court rejected the defendants' argument that “the
increased complexity of substantive and procedural criminal law requires that all
judges now be lawyers.” Id. at 2712. The Court held that an adult accused of a
misdemeanor is not denied due process under the federal constitution when
initially tried before a non-attorney judge. The Court 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 (Tenn. 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 (holding, "We do not view North v. Russell
as being applicable to the case at bar."). 2 In Anglin, two juveniles charged with
third degree burglary and profanity were tried before a lay judge and without
benefit of counsel3. This Court in Anglin distinguished Anglin from North v.
Russell on the basis that:
1 The Court of Criminal Appeals, in addressing the issue now before us, noted that "[t]he Supreme Court in Ang lin took great pains to distinguish the application of North to juv enile proceedings and adult proceedings. . . . The differences between Nor th v. R uss ell and the case at bar are glaring. . . ." The Court of Criminal Appeals adopted the holding of the United 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 distinguished because the "law of the land" provision mirrors federal du e proce ss. State v. Ha le, 840 S.W .2d 307 (Tenn. 1992).
3 The lower court held that the right to counsel had been knowingly and voluntarily waived.
3 1. the juveniles in Anglin did not have a de novo right of
appeal;
2. the juveniles' sentences went into immediate effect;
3. the juveniles faced felony charges carrying "loss of liberty for
from seven to eight years"; and
4. the juveniles had five days in which to perfect an appeal as
opposed to thirty days.
Id. at 790-91. This Court found North to be inapplicable based on the above
factors and held that juvenile judges must be licensed lawyers "to make any
disposition of a juvenile that operates to confine him or deprive him of his liberty."
Id. at 791.
In the case now before us, the majority's primary concern is the ability of
non-attorney municipal and general session judges to preside over misdemeanor
cases "where incarceration 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 sentence of eleven
months and twenty-nine days. I would, therefore, hold that Anglin is inapplicable
to the case now before us for the same reasons the majority in Anglin held that
North was inapplicable to Anglin. I would further hold that it is for the legislature
and not for this Court to redraft the requirements for holding office as judge. The
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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE FILED October 12, 1998 THE CITY OF WHITE HOUSE, ) ) APPELLANT, ) Cecil W. Crowson ) Appellate Court Clerk v. ) NO. 01S01-9711-CH-00259 ) LAWRENCE RAY WHITLEY, ) District Attorney General for the ) Eighteenth Judicial District of the ) State of 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. )
DISSENTING OPINION
I respectfully dissent from the majority’s opinion. The legislature has set
forth the requirements for judges. While a rule mandating attorney municipal
judges may be desirable, no provision of either the state or federal constitution
requires attorney judges. Mere disagreement with legislative mandate is neither
a sufficient reason for this Court to redraft legislation nor a sufficient reason for
this Court to redefine the Tennessee Constitution. The policy rejected as
unconstitutional by the majority was not only the norm when the constitution was
drafted, but also has passed federal constitutional muster in North v. Russell,
427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976). Accordingly, I would hold
that this area is purely one of legislative prerogative and reserved for the voting
public. I further disagree with the majority's holding that rules designed to eliminate practices which deprive accused of their fundamental right to fair trials
should not be applied retroactively.
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 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.
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 vast increase in the number of attorneys and
tremendous improvements in transportation and communication."
This Court has consistently 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 phrase, 'due
process of law,' used in [the federal constitution], are synonymous phrases
meaning one and the same thing.") (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 (Tenn. 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 Supreme
Court addressed the question of "whether an accused, subject to possible
2 imprisonment, is denied due process when tried before a nonlawyer police court
judge with a later trial de novo available." In North, defendants appearing before
the municipal or "police court": (1) had a right to a trial de novo; (2) had thirty
days within which to perfect an appeal; (3) were generally charged with
violations of traffic laws; and (4) faced sentences of less than one year. The
United States Supreme Court rejected the defendants' argument that “the
increased complexity of substantive and procedural criminal law requires that all
judges now be lawyers.” Id. at 2712. The Court held that an adult accused of a
misdemeanor is not denied due process under the federal constitution when
initially tried before a non-attorney judge. The Court 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 (Tenn. 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 (holding, "We do not view North v. Russell
as being applicable to the case at bar."). 2 In Anglin, two juveniles charged with
third degree burglary and profanity were tried before a lay judge and without
benefit of counsel3. This Court in Anglin distinguished Anglin from North v.
Russell on the basis that:
1 The Court of Criminal Appeals, in addressing the issue now before us, noted that "[t]he Supreme Court in Ang lin took great pains to distinguish the application of North to juv enile proceedings and adult proceedings. . . . The differences between Nor th v. R uss ell and the case at bar are glaring. . . ." The Court of Criminal Appeals adopted the holding of the United 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 distinguished because the "law of the land" provision mirrors federal du e proce ss. State v. Ha le, 840 S.W .2d 307 (Tenn. 1992).
3 The lower court held that the right to counsel had been knowingly and voluntarily waived.
3 1. the juveniles in Anglin did not have a de novo right of
appeal;
2. the juveniles' sentences went into immediate effect;
3. the juveniles faced felony charges carrying "loss of liberty for
from seven to eight years"; and
4. the juveniles had five days in which to perfect an appeal as
opposed to thirty days.
Id. at 790-91. This Court found North to be inapplicable based on the above
factors and held that juvenile judges must be licensed lawyers "to make any
disposition of a juvenile that operates to confine him or deprive him of his liberty."
Id. at 791.
In the case now before us, the majority's primary concern is the ability of
non-attorney municipal and general session judges to preside over misdemeanor
cases "where incarceration 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 sentence of eleven
months and twenty-nine days. I would, therefore, hold that Anglin is inapplicable
to the case now before us for the same reasons the majority in Anglin held that
North was inapplicable to Anglin. I would further hold that it is for the legislature
and not for this Court to redraft the requirements for holding office as judge. The
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. § 55-8-138 ("Pedestrians on Roadways" defined as a Class C misdemeanor); Tenn. Code Ann. §§ 55-8-146, -147 (defining as misdemeanors the failure the to stop at railroad crossings); Tenn. Code Ann. § 55-8-149 (stating Class C misdemeanor for failure to stop at a stop sign); Tenn. Code Ann. § 55-8-152, -154 (classifying violations of speed limit laws as misdemeanors); Tenn. Code Ann. §§ 55-8-160 (defining prohibited parking violations as Class C misdem eanors).
4 effect of the majority's opinion, however, is to redraft the constitution to reflect
the majority's notions of fundamental fairness.5
PROSPECTIVE APPLICATION
While the majority found that a rule allowing non-attorney judges to
preside over misdemeanor cases is a denial of due process and fundamentally
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 (Tenn. 1995).
In Meadows, this Court held that a new constitutional rule shall be applied
retroactively in post-conviction proceedings if the new rule "materially enhances
the integrity and reliability of the fact finding process of the trial" and "raises
serious questions about the accuracy of guilty verdicts in past trials." Id. at 754.
Clearly, under the Meadows standard, a new rule designed to eliminate a
practice held to prohibit a defendant from obtaining a fair, reliable and accurate
trial should be applied retroactively.
Municipal and general sessions judges are the exclusive finders of fact in
cases before their courts. The majority has held that permitting non-attorney
judges to preside over criminal matters raises serious constitutional questions
concerning the accuracy and reliability of criminal trials. The majority states that
it "cannot countenance and classify as constitutional any procedure whereby it is
necessary that a citizen stand two trials to get one fair trial." I, therefore,
question the majority's decision to refuse retroactive application of the new
5 The distin ction betw een incar cera tion a nd no n-inc arce ration is ten uou s if the ma jority is declaring that non-attorney judges are generally incapable of conducting fair trials. An individual seeking compensation for a civil wrong has just as much right to a fair trial as an individual accused of a minor traffic violation.
5 constitutional rule when the majority holds that the "old rule" denies a citizen the
right to a fair trial.
JANICE M. HOLDER, JUSTICE