WILLIAM M. WOODSIDE,                     )

      Plaintiff/Appellant,
                                         )
                                         )
                                               FILED
                                         )       Oct. 20, 1995
and                                      )
                                         )     Cecil Crowson, Jr.
                                                Appellate Court Clerk
BILLY E. and MARY AGNITA                 )
WOODSIDE, Grandparents,                  )
                                         )
      Plaintiffs,                        )
                                         )    Davidson Probate
                                         )    No. 89D-95
VS.                                      )
                                         )    Appeal No.
                                         )    01-A-01-9503-PB-00121
SUSAN E. WOODSIDE (GILLEY), )
                                         )
      Defendant/Appellee.                )

                    IN THE COURT OF APPEALS OF TENNESSEE

                             MIDDLE SECTION AT NASHVILLE


         APPEAL FROM THE PROBATE COURT OF DAVIDSON COUNTY

                               AT NASHVILLE, TENNESSEE


                    HONORABLE JAMES R. EVERETT, JR., JUDGE


CLARK LEE SHAW
2525 Lebanon Road
Nashville, Tennessee 37214
ATTORNEY FOR PLAINTIFF/APPELLANT


KAREN CAIN
306 Gay Street
Suite 304
Nashville, Tennessee 37201

THOMAS F. BLOOM
500 Church Street
Fifth Floor
Nashville, Tennessee 37219
ATTORNEYS FOR DEFENDANT/APPELLEE


AFFIRMED AND REMANDED

                                    HENRY F. TODD
                                    PRESIDING JUDGE, MIDDLE SECTION

BEN H. CANTRELL, JUDGE, CONCURS AND
WILLIAM C. KOCH, JR., JUDGE,
CONCURS IN SEPARATE OPINION
WILLIAM M. WOODSIDE,                         )
                                             )
       Plaintiff/Appellant,                  )
                                             )
and                                          )
                                             )
BILLY E. and MARY AGNITA                     )
WOODSIDE, Grandparents,                      )
                                             )
       Plaintiffs,                           )
                                             )      Davidson Probate
                                             )      No. 89D-95
VS.                                          )
                                             )      Appeal No.
                                             )      01-A-01-9503-PB-00121
SUSAN E. WOODSIDE (GILLEY), )
                                             )
       Defendant/Appellee.                   )


                                        OPINION


       This appeal arises from post-divorce decree proceedings to increase and enforce child

support. On October 11, 1994, the Trial Court entered an order finding the husband guilty of

willful contempt, awarded the wife judgment for $10,054 arrears child support, increased

weekly payments, awarded attorneys' fees and ordered the husband to be confined in the

workhouse for six months.



       On October 19, 1994, the husband filed a "Motion for New Trial and For Post-

Conviction Relief." On November 7, 1994, the Trial Court entered an order permitting the

Tennessee Attorney General and Reporter and Child Support Services of Tennessee to

intervene and respond to the motion for new trial and post-conviction relief. A copy of said

order was served upon the Tennessee Attorney General and Reporter, but the record contains

no response from his office.



       On December 2, 1994, the Trial Court overruled the motion for new trial and post-

conviction relief.




                                             -2-
           On December 13, 1994, the husband filed a notice of appeal from the December 2,

1994, order.



           On February 9, 1995, an "Agreed Order" was entered resolving all issues in the case

except the validity of the six months sentence. The order stated:

                    It is therefore ordered, adjudged and decreed by the Court that
                  respondent's motion for a new trial be and is hereby denied by
                  agreement of the parties in all respects except on the singular
                  issue raised in Young vs. U.S., as to whether the Court should
                  set aside respondent's six month jail sentence for conviction of
                  non-payment of child support under T.C.A. Section 36-5-104
                  and respondent's appeal shall be limited to that issue.

                   It is ordered that the respondent shall remain free on bond
                  pending determination of that limited issue and if he is
                  unsuccessful on appeal, his sentence shall be computed to
                  "time served" by agreement of the parties and approval of the
                  Court.


           On February 13, 1995, the husband filed an "Amended Notice of Appeal" stating:

                   Notice is hereby given that William E. Woodside appeals to
                  the Court of Appeals from the final judgment in this case in
                  which Respondent's Motion for a New Trial and Post-
                  Conviction Relief was heard on the 14th day of November,
                  1994 and from the order denying same of the Court was entered
                  on the 2nd day of December, 1994. The last action of the trial
                  court in this matter is an agreed order entered February 8, 1995.


           On the same date, the husband filed a document entitled "Intended Issue on Appeal,"

stating:

                  1. Whether the Trial court abused its discretion when it
                  allowed the Petitioner/Appellee to retain private counsel to
                  prosecute criminal contempt contrary to the United States
                  Supreme Court directives contained in Young v. U.S., 481 U.S.
                  787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987).


           On the same date, the husband filed a notice that no transcript would be filed.



           The single issue on appeal is that stated above.




                                                 -3-
       It is clear from the technical record that the six months workhouse sentence was the

result of a petition filed and prosecuted by private counsel for the wife, and that no public

prosecutor had any part in the proceedings preceding the judgment of conviction and

confinement.



       The record contains no record of a request to any public prosecutor to prosecute the

contempt petition. On the other hand, there is no evidence that no such request was made.



       This Court has experienced some jurisdictional concern because of the fact that the

judgment of the Trial Court imposes a sentence for criminal contempt (it contains no

condition for release which would indicate "civil contempt"), and the post-judgment motion

is denominated in part, a motion for "Post-Conviction Relief."



       T.C.A. Title 40, Chapter 30, is entitled: "Post Conviction Relief." Section 40-30-122

reads as follows:

               Appeal after final judgment. - The order granting or denying
               relief under the provisions of this chapter shall be deemed a
               final judgment, and an appeal may be taken to the court of
               criminal appeals in the manner prescribed by the Tennessee
               Rules of Appellate Procedure. [Acts 1967, ch. 310, § 21; 1981,
               ch. 449, § 2; T.C.A. § 40-3822.]


       However, Section 40-30-102 provides:

               When prisoners may petition for post-conviction relief. - A
               prisoner in custody under sentence of a court of this state must
               petition for post-conviction relief under this chapter within
               three (3) years of the date of the final action of the highest state
               appellate court to which an appeal is taken or consideration of
               such petition shall be barred. [Acts 1967, ch. 310, § 1; 1981,
               ch. 449, § 2; T.C.A., § 40-3802; Acts 1986, ch. 634, § 1.]


       Even though the order in the present case might be a sentence for criminal contempt

(See T.C.A. §29-9-103; 104; Sherrod v. Wix, Tenn. App. 1992, 849 S.W.2d 780; Higgins v.

Lewis, 29 Tenn. App. 648, 137 S.W.2d 308(1939)), it appears that the motion for post-

conviction relief was premature and could not be considered. The part of the motion for

                                               -4-
evaluation in this appeal is the motion for new trial. The statute, T.C.A. 16-4-108, places

jurisdiction in this Court over civil or criminal contempt arising out of a civil matter.



       The sole issue presented on appeal is the applicability and effect of the decision of the

Supreme Court of the United States in Young, et al v. United States, ex rel., Vuitton Et Fils

S.A., et al, 481 U.S. 787, 95 L.Ed.2d 740, 1987. In the cited case, the defendants were

convicted of criminal contempt by violating a permanent injunction against infringing a trade

mark. At the request of counsel for the offended party, the Trial Court appointed private

counsel to prosecute the complaint without consulting or designating the United States

District Attorney to do so. The opinion of Justice Brennan, in which Justices Marshall,

Blackmun and Stevens joined, stated:

                 . . . If the Judiciary were completely dependent on the
               Executive Branch to redress direct affronts to its authority, it
               would be powerless to protect itself if that Branch declined prosecution. The logic of this
request the appropriate prosecuting authority to prosecute contempt actions, and should
appoint a private prosecutor only if that request is denied. Such a procedure ensures that the
court will exercise its inherent power of self-protection only as a last resort.

                In practice, courts can reasonably expect that the public
               prosecutor will accept the responsibility for prosecution.
               Indeed, the United States Attorney's Manual § 9-39.318 (1984)
               expressly provides: "In the great majority of cases the
               dedication of the executive branch to the preservation of
               respect for judicial authority makes the acceptance by the U.S.
               Attorney of the court's request to prosecute a mere formality...."
               Referral will thus enhance the prospect that investigative
               activity will be conducted by trained prosecutors pursuant to
               Justice Department guidelines.

                In this case, the District Court did not first refer the case to the
               United States Attorney's Office before the appointment of
               Bainton and Devlin as special prosecutors. We need not
               address the ramifications of that failure, however. Even if a
               referral had been made, we hold, in the exercise of our
               supervisory power, that the court erred in appointing as
               prosecutors counsel for an interested party in the underlying
               civil litigation.

                 ....

                . . . As we said in Gompers, criminal contempt proceedings
               arising out of civil litigation "are between the public and the
               defendant, and are not a part of the original cause." 221 U.S.,
               at 445, 31 S.Ct., at 499. The prosecutor is appointed solely to
               pursue the public interest in vindication of the court's authority.

                                               -5-
A private attorney appointed to prosecute a criminal contempt
therefore certainly should be as disinterested as a public
prosecutor who undertakes such a prosecution.

 ....

 Regardless of whether the appointment of private counsel in
this case resulted in any prosecutorial impropriety (an issue on
which we express no opinion), that appointment illustrates the
potential for private interest to influence the discharge of
public duty. . . .

 ....

  As we said in Bloom, "In modern times, procedures in
criminal contempt cases have come to mirror those used in
ordinary criminal cases." 391 U.S., at 207, 88 S.Ct., at 1485.
The requirement of a disinterested prosecutor is consistent with
that trend, since "[a] scheme injecting a personal interest,
financial or otherwise, into the enforcement process may bring
irrelevant or impermissible factors into the prosecutorial
decision."

 The use of this Court's supervisory authority has played a
prominent role in ensuring that contempt proceedings are
conducted in a manner consistent with basic notions of
fairness. See e.g., Cheff, 384 U.S., at 380, 86 S.Ct., at 1526
(requiring jury trial for imposition of contempt sentences
greater than six months); Yates v. United States, 356 U.S. 363,
366-367, 78 S.Ct. 766, 768-769, 2 L.Ed.2d 837 (1958)
(reducing contempt sentence in light of miscalculation of
number of offenses committed); Offutt v. United States, 348
U.S. 11, 13, 17-18, 75 S.Ct. 11, 13, 15, 99 L.Ed. 11 (1954)
(contempt conviction reversed in case in which judge involved
in personal conflict with contemner). The exercise of
supervisory authority is especially appropriate in the
determination of the procedures to be employed by courts to
enforce their orders, a subject that directly concerns the
functioning of the Judiciary. We rely today on that authority to
hold that counsel for a party that is the beneficiary of a court
order may not be appointed as prosecutor in a contempt action
alleging a violation of that order.

 The next question we must confront is whether the
Government should have the opportunity to demonstrate that it
was harmless error for the court to appoint counsel for an
interested party as contempt prosecutor. See Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
We have held that some errors "are so fundamental and
pervasive that they require reversal without regard to the facts
or circumstances of the particular case." Delaware v. Van
Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d
674 (1986). We find that the appointment of an interested
prosecutor is such an error.

 ....


                               -6-
                Furthermore, appointment of an interested prosecutor creates
               an appearance of impropriety that diminishes faith in the
               fairness of the criminal justice system in general. . . . A
               concern for actual prejudice in such circumstances misses the
               point, for what is at stake is the public perception of the
               integrity of our criminal justice system. "[J]ustice must satisfy
               the appearance of justice," Offutt, supra, 348 U.S., at 14, 75
               S.Ct., at 13, and a prosecutor with conflicting loyalties presents
               the appearance of precisely the opposite. Society's interest in
               disinterested prosecution therefore would not be adequately
               protected by harmless-error analysis, for such analysis would
               not be sensitive to the fundamental nature of the error
               committed.

                ....

                . . . A prosecutor of a contempt action who represents the
               private beneficiary of the court order allegedly violated cannot
               provide such assurance, for such an attorney is required by the
               very standards of the profession to serve two masters. The
               appointment of counsel for Vuitton to conduct the contempt
               prosecution in these cases therefore was improper.
               Accordingly, the judgment of the Court of Appeals is Reversed.

Young, 107 S.Ct. at 2134-41.


       Justice Scalia concurred on other grounds.



       Justices Powell, Chief Justice Rehnquist and Justice O'Connor dissented stating that a

remand was necessary to determine whether the error was harmless.



       Justice White dissented, holding that there was no error in appointment of special

prosecutors.



       It appears that the 5 to 4 decision of the U.S. Supreme Court favors the position of the

appellant/husband in the present case.



       The next consideration must be whether the above quoted pronouncements are

mandatory upon the Courts of Tennessee.




                                              -7-
       In some instances, decisions of the United States Supreme Court have been

recognized as binding upon the Courts of Tennessee.



       The Tennessee Supreme Court is bound by the interpretation given to the United

States Constitution by the Supreme Court of the United States. U.S. Const. Art. 6, Ch.2;

Miller v. State, Tenn. 1979, 584 S.W.2d 758; Townsend v. Clover Bottom Hospital and

School, Tenn. 1978, 560 S.W.2d 623, cert.den., 98 S.Ct. 2854, 436 U.S. 948, 56 L.Ed.2d 790;

Roy v. Brittain, 201 Tenn. 140, 297 S.W.2d 72 (1957); State ex rel Sandford v. Cate, 199

Tenn. 195, 285 S.W.2d 343; Rowe Transfer & Storage Co. v. Int. Broth. Teamsters, etc., 186

Tenn. 265, 209 S.W.2d 35 (1948).



       A decision of the Federal Supreme Court on a federal constitutional question is

conclusive on the state courts. Toncray v. Toncray, 123 Tenn. 476, 131 S.W. 977, 34 L.R.A.

N.S. 1106 anno.cas. 1912 C 284 (1910).



       Whether a transaction by a foreign corporation is interstate commerce is a federal

question which decisions by the Federal Supreme Court must be followed by state courts.

Lloyd Thomas Co. v. Grosvenor, 144 Tenn. 347, 233 S.W.2d 669 (1921).



       However, there are other areas in which decisions of the U.S. Supreme Court are not

binding upon the Courts of Tennessee.



       The Tennessee Supreme Court is not bound by a federal court decision on the subject

of opinion evidence in a summary judgment proceeding. Bowman v. Henard, Tenn. 1977,

547 S.W.2d 527; Smith v. Graves, Tenn. App. 1984, 672 S.W.2d 787.




                                             -8-
         Federal decisions that frozen, uncooked meat is equivalent to fresh meat for tax

purposes are not controlling in Tennessee Courts. Robert Orr & Co. v. King, 175 Tenn. 181,

133 S.W.2d 473 (1940).



         United States Supreme Court decisions in Wade and Gilbert cases do not apply to

state pre-indictment proceedings. Harrison v. State, Tenn. Cr. App. 1975, 532 S.W.2d 566.



         Any doubt as to whether federal construction of federal rules of criminal procedure or

Tennessee Common Law controls a question of procedure should be resolved in favor of

Tennessee Common Law. Vythoulkas v. Vanderbilt University Hospital, Tenn. App. 1985,

693 S.W.2d 350.



         A careful reading of the Young opinion fails to reveal any authoritative

pronouncement based upon the Federal Constitution or a federal statute which would be

applicable to the present case. The cited opinion must be regarded as being within the

general supervisory powers of the United States Supreme Court over the federal judicial

system and its procedures. Its rationale is public policy and public perception which are valid

considerations for prescribing procedures in federal courts, but not a proper basis for

considering a decision of the United States Supreme Court mandatory upon the courts of

Tennessee.



         This Court therefore does not consider the Young decision to be binding upon the

Courts of Tennessee, and it will not be followed.



         Whether the pronouncements of Young are to be adopted in Tennessee is a matter of

public policy which must be determined by the Legislature or the Supreme Court of this

State.




                                               -9-
       The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the

appellant. The cause is remanded to the Trial Court for such further proceedings as may be

necessary and proper.



       Affirmed and Remanded.



                                            _______________________________________
                                            HENRY F. TODD
                                            PRESIDING JUDGE, MIDDLE SECTION




_____________________________________
BEN H. CANTRELL, JUDGE, CONCURS




WILLIAM C. KOCH, JR., JUDGE,
CONCURS IN SEPARATE OPINION




                                            -10-
