Back in 2006, when Shelby County tried to enforce a term-limits rule
for county commissioners, some officials challenged the rule under the
Tennessee Constitution. The trial court upheld the provision; the
appellate court struck it down; and the county took it to the Tennessee
Supreme Court, where the county ultimately prevailed.
With luck, a similar judicial ping-pong may happen over the
commission’s attempt to appoint a second judge at Juvenile
Court.
On Monday, a Tennessee court of appeals panel ruled that the 1967
state law authorizing the Shelby County Commission to appoint a second
judge violated the state Constitution, reversing a trial court decision
siding with the commission. The opinion is based on a strained reading
of the act and should be appealed.
The 1967 statute granted the County Commission the authority to
appoint a second judge whenever it deemed such an appointment
necessary. In 2006, the commission passed a resolution to fill the
vacancy. Judge Curtis Person, who would have had to share power
with the second judge, then sued to block that action. The
second judgeship has remained vacant by court order, pending the
litigation.
On the merits, the second judgeship is a sound judicial reform,
endorsed by the Memphis Bar Association, supported by findings of a
special study by the National Center for State Courts, and ratified by
a County Commission report summarizing months of public
hearings. It represents the majority model of juvenile court
structures around the country. More important, the opinion unfairly
overrules the will of the people, as expressed by the state legislature
and County Commission.
The 1967 act established the original Juvenile Court and then
provided:
“[T]here is hereby created a Second Division of the Court. … The
Judgeship of said Second Division shall remain vacant until the
Quarterly County Court of Shelby County shall determine the need
therefore.”
Yesterday’s appellate court reasoned as follows:
1) Under Article VI, Section 1 of the Tennessee Constitution, only
the state legislature can “create” a court.
2) Under Tennessee case law, the presence of a judge is an essential
element of a court — a court doesn’t exist without a judge. Thus,
the state legislature cannot create a court without also creating a
judgeship.
3) The act in question does not really create a judgeship, because
it leaves the question of when to fill the vacancy open to the County
Commission.
4) By giving the commission power to say when the second
judgeship would be needed, it gave the commission the power to say if
it would ever be needed, which contradicts point one.
Points one and two are fair enough, but from there onward the court
goes astray.
First, the act’s plain language clearly states that the legislature
“hereby created” the second division of the court. The County
Commission did not “create” it.
Second, the act clearly does establish a “judgeship.” Its plain
language refers to “the Judgeship of said Second Division,” which is
held vacant.
The appellate court goes out of its way to interpret the act’s
language to render the act unconstitutional, reversing the normal
presumption in favor of construing legislation in a manner to keep it
constitutional.
The opinion also proves too much. It is not at all unusual for the
legislature to create a new local court and allow local government to
fill the vacancy. But by the appellate panel’s logic, any time the
legislature does not simultaneously fill a new local court with a judge
the instant it creates it, it is violating the Tennessee Constitution.
In all such cases, there is some length of time during which the
“court” does not come into existence until the local body fills its
vacancy; by the logic of the opinion, the local government then
“establishes” the court, in violation of Article VI, Section 1.
Mindful of prior cases saying the state legislature could not
delegate to local bodies the power to “create” courts, the 1967
legislature was very careful to do the creating itself, leaving the
local body with only the narrow question of filling the vacancy. The
panel opinion simply disregards all this.
Getting a second judge is a good idea. So is challenging a decision
which unfairly and permanently ties the hands of the state
legislature and the County Commission. We should appeal the case to the
state Supreme Court and get the issue decided once and for
all.
