             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                        AT JACKSON

                               FEBRUARY 1997 SESSION
                                                                     FILED
                                                                        June 09, 1997

BARRY WELLS,                                  )                      Cecil Crowson, Jr.
                                                                     Appellate C ourt Clerk
                                              )
       Appellant,                             )       No. 02C01-9610-CV-00358
                                              )
VS.                                           )       Lauderdale County
                                              )
RONNIE RICKARD,                               )       Joseph H. Walker, III, Judge
                                              )
       Appellee.                              )       (Habeas Corpus)




                                 CONCURRING OPINION


       I concur in the result reached by my colleagues but write separately to express

my concern over the practice of non-lawyer judges having the authority to order the

incarceration of adults.



                                               I.



       The majority correctly notes that North v. Russell, 427 U.S. 328, 96 S.Ct. 2709,

49 L.Ed.2d 534 (1976), found no federal constitutional impediment to non-lawyer

judges incarcerating persons under the Kentucky two-tier trial court system. However,

North noted that Kentucky’s two-tier system provided for the following: appeals which

automatically vacated the conviction by the non-lawyer judge; a trial de novo even after

a plea of guilty in the court of the non-lawyer judge; the obligation of the non-lawyer

Kentucky judge to advise defendants of their unconditional right to a de novo trial; the

right of an appeal within thirty (30) days from the non-lawyer judge’s conviction; and

the right to totally by-pass the non-lawyer judge by tendering a guilty plea and securing

a trial de novo before a lawyer judge.1 427 U.S. at 334-337, 96 S.Ct. at 2712-13.


       1
         The Court did further “assume that police court judges recognize their obligation under
Argersinger v. Hamlin, [407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)] to inform
defendants of their right to a lawyer if a sentence of confinement is to be imposed.” North v.
Russell, 427 U.S. at 335, 96 S.Ct. at 2712. The trial judge in the case sub judice found that the
general sessions judge failed to secure from defendant an appropriate waiver of counsel.
These procedural safeguards are not applicable in Tennessee.



                                            II.



       Nevertheless, these limiting factors in North seem to have made little difference

in other states where no constitutional violation was found. Although it has been

contended with occasional success that the use of non-lawyer judges is violative of

constitutional due process, the weight of authority appears to be to the contrary,

particularly when the defendant has a subsequent right to a trial de novo before a

lawyer judge. 21A Am.Jur.2d Criminal Law § 826 (1981) (citations omitted); see also

State ex rel. Collins v. Bedell, 460 S.E.2d 636, 644-45 (W.Va. 1995) (citing several

cases that have considered the issue); 71 A.L.R.3d 562 (1977). More recently, it has

been recognized that it is questionable whether proceedings before lay justices are

consistent with the demands of due process, and the constitutionality of this procedure

is not fully resolved. C. Fieman, Do Nonlawyer Justices Dispense Justice?, 69 N.Y.

St. B. J. 20 (Jan. 1997).



                                            III.



       Undetermined in this state is the applicability of Article I, § 8 of the Constitution

of Tennessee to the issue of non-lawyer judges incarcerating adults. State ex rel.

Anglin v. Mitchell, 596 S.W.2d 779 (Tenn. 1980), found such a violation relating to the

detention of juveniles. If Anglin is a proper interpretation of Article I, § 8 of our

Constitution, then I see no reason to limit its holding to juveniles. Otherwise, a non-

lawyer judge on the first case on the docket could constitutionally incarcerate an

eighteen-year old adult misdemeanant to numerous consecutive terms of 11 months

and 29 days. Yet, the same non-lawyer judge on the next case on the docket could




                                             2
not order the confinement of a seventeen-year old juvenile for one day.2 Somehow,

this logic escapes me.

       The Tennessee cases cited in the majority opinion relate to preliminary hearings

and juvenile transfer hearings, not the right to incarcerate.3           Furthermore, the

references to the statutory authorization for non-lawyer judges and the failure of an

attorney to qualify for the Lauderdale County judgeship are irrelevant to the

constitutional issue.



                                            IV.



       In spite of the differences in the Tennessee two-tier system as compared to the

Kentucky system examined in North, there appears to be little authority elsewhere and

no Tennessee authority to suggest a federal constitutional violation. As to our state

constitution, our Supreme Court has not spoken as to its applicability to non-lawyer

judges incarcerating adult misdemeanants. Yet, as noted by the majority, the Anglin

holding has not been extended in its seventeen (17) year existence.

       In view of this history, I am reluctant to find a constitutional violation in spite of

my personal views that due process is offended by such a practice.




                                            JOE G. RILEY, JUDGE




       2
        Some general sessions courts also exercise juvenile jurisdiction. Tenn. Code Ann. §
37-1-203.
       3
         The majority opinion correctly notes that North was applied in State v. Voltz, 626
S.W.2d 291, 295-96 (Tenn. Crim. App. 1981); however, Voltz concerned a non-lawyer judge’s
participation in a preliminary hearing, not incarceration.

                                             3
