THE CITY OF WHITE HOUSE,                      )
                                              )   Sumner County Chancery
       Plaintiff/Appellee,                    )   No. 95C-41
                                              )
VS.                                           )
                                              )   Appeal No.
LAWRENCE RAY WHITLEY,                         )   01A01-9612-CH-00571
District Attorney General for the Eighteenth  )
Judicial District for the State of Tennessee, )
JOHN CARNEY, District Attorney and            )
THE STATE OF TENNESSEE,                       )
                                              )
                                                         FILED
       Defendants/Appellants,                 )
                                              )            June 18, 1997
TAYLOR (TED) EMERY, Sheriff for Robertson )
County, Tennessee, J. D. VANDERVORK,          )          Cecil W. Crowson
Sheriff for Sumner County, Tennessee,         )         Appellate Court Clerk
                                              )
       Defendants.                            )


                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE


          APPEAL FROM THE SUMNER COUNTY CHANCERY COURT
                      AT GALLATIN, TENNESSEE


                       HONORABLE TOM E. GRAY, JUDGE

John Knox Walkup
Attorney General and Reporter

Gordon W. Smith
Associate Solicitor General
500 Charlotte Avenue
Nashville, TN 37243
ATTORNEYS FOR DEFENDANTS/APPELLANTS

David M. Amonette
554 West Main Street
Gallatin, TN 37066
ATTORNEY FOR PLAINTIFF/APPELLEE


                        REVERSED AND REMANDED



                                HENRY F. TODD
                                PRESIDING JUDGE, MIDDLE SECTION

CONCURS:
SAMUEL L. LEWIS, JUDGE

DISSENTS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
THE CITY OF WHITE HOUSE,                      )
                                              )
       Plaintiff/Appellee,                    )
                                              )            Sumner County Chancery
                                              )            No. 95C-41
VS.                                           )
                                              )            Appeal No.
                                              )            01A01-9612-CH-00571
LAWRENCE RAY WHITLEY,                         )
District Attorney General for the Eighteenth  )
Judicial District for the State of Tennessee, )
JOHN CARNEY, District Attorney and            )
THE STATE OF TENNESSEE,                       )
                                              )
       Defendants/Appellants,                 )
                                              )
TAYLOR (TED) EMERY, Sheriff for Robertson )
County, Tennessee, J. D. VANDERVORK,          )
Sheriff for Sumner County, Tennessee,         )
                                              )
       Defendants.                            )


                                     OPINION


              The captioned defendants, Lawrence Ray Whitley, District Attorney, John Carney,

District Attorney, and The State of Tennessee have appealed from an unsatisfactory non-jury

judgment in this suit for a declaratory judgment and mandamus. The other captioned defendants

have not appealed. The appellants present the following issue:

              Does Article I, Section 8, of the Constitution of Tennessee
              prohibit a non-lawyer judge from presiding over a criminal
              defendant’s trial for an offense punishable by incarceration?


                                             I.

                                      The Complaint

              On March 2, 1995, the plaintiff, The City of White House filed a “Complaint for

Declaratory Judgment” alleging the following facts:



              1.      The City is situated partly in Sumner County and partly in Robertson

County.




                                             -2-
                2.      The City has created a municipal court and has designated a non-lawyer

to act as judge of said court.



                3.      The defendants district attorneys have declined to prosecute before said

court any offenses punishable by loss of liberty because the incumbent judge is not a licensed

attorney, and the defendants’ sheriffs have declined to accept for detention any person committed

by said judge upon a charge or conviction of such offenses.



                The prayers of the complaint were for a declaration of the authority of said judge

and duties of the defendants’ district attorneys and sheriffs, and for the enforcement of the

performance of such duties by mandamus.



                The defendants moved to dismiss for failure to state a claim for which relief may

be granted.

                                               II.

                                         The Judgment

                On March 27, 1996, the Trial Court entered the following order:

                This matter came on to be heard upon Motion to Dismiss filed by
                the defendants and Motion to Amend filed by plaintiff, and the
                Court granted the Motion to Amend, heard oral argument on the
                Motion to Dismiss and granted plaintiff time to file a supplemental
                brief. After consideration of the facts as agreed to by the parties
                and the record, the Court issued a Memorandum dated the 27th
                Day of March, 1996.

                IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
                the Memorandum dated the 27th day of March, 1996 is incor-
                porated herein and made a part hereof and said document reads in
                words and figures as follows:

                1.     Upon its own motion, the Court hereby dismisses the
                action filed against Taylor (Ted) Emery, the Sheriff for Robert-
                son County, Tennessee, on the basis of improper venue.

                2.      The Motion to Dismiss filed by the defendants is hereby
                denied.

                3.    As to the prayer for a Writ of Mandamus, the Court shall
                conduct a hearing at a date and time agreed upon by plaintiff and

                                               -3-
               defendants or upon failure to agree at a date and time set by the
               Court.



               The memorandum, which is part of the order, states in pertinent part as follows:
                                              ----
                  A municipal court and not a general sessions court is the city
               court of White House, but if the judge is elected by popular
               election pursuant to Ordinance 94-01 Section 1-503 and White
               House has complied with applicable Tennessee statutory law,
               the city has established jurisdiction concurrent with the courts
               of general sessions in cases involving violation of criminal laws
               of Tennessee.

                  In paragraph 18 of the Complaint, plaintiff alleges that its
               municipal judge is vested with concurrent jurisdiction of the
               general sessions courts of the State of Tennessee. The
               Municipal Court of White House is not in toto vested with
               concurrent jurisdiction of the general sessions courts.
                                               ----
                  The only concurrent jurisdiction with general sessions courts
               conveyed by the City of White House in Ordinance 94-01 is in
               cases involving violation of criminal laws of the State within
               the corporate limits of the city.
                                               ----
                  The General Assembly by enactment of T.C.A. 6-4-301 and
               T.C.A. 16-18-201 - 16-18-207 has manifested an intent to vest
               in municipal courts’ concurrent jurisdiction and authority with
               courts of general sessions, as set forth in title 40, in all cases
               of the violation of the criminal laws of the state of Tennessee
               within the limits of the municipality.
                                               ----
                  Municipal Court judges are not required by Tennessee
               statute to be authorized to practice law in the Courts of
               Tennessee.
                                               ----
                  The Court denies the motion of defendants to dismiss this
               action. The City of White House has complied with Tennessee
               statutory law to establish a municipal court and to popularly
               elect a judge. Concurrent jurisdiction and authority with courts
               of general sessions as set forth in title 40 in all cases of the
               violation of criminal laws of the State of Tennessee within the
               limits of municipality exists in the White House City Court.

                 As to the prayer for a Writ of Mandamus, the Court shall
               conduct a hearing at a date and time agreed upon by plaintiff
               and defendants or upon failure to agree at a date and time set
               by the Court.



               After the defendants filed their answer, on May 28, 1996, the Trial Court

entered an order stating:



                                              -4-
                Upon further consideration by the Court, it appears that the
              order entered on March 27, 1996, should be amended. It is,
              therefore, ORDERED, ADJUDGED, AND DECREED, that
              the order be amended by adding at the end of numbered para-
              graph three (3) on the last page thereof, the following sentence:

                      The scope of the hearing shall include, but shall
                      not be limited to, legal argument on the pending
                      amended motion to dismiss filed on behalf of the
                      State of Tennessee, Lawrence Ray Whitley, and
                      John Carney, as well as any proof and argument
                      that the parties wish to present as to the prayer
                      for a Writ of Mandamus:

               And by adding the following new paragraph thereafter:

               4.     The Court orders judgment in favor of the plaintiff
               with respect to the complaint for declaratory judgment. All
               other matters are reserved.


               On October 15, 1996, the Trial Court entered a further order stating:

                 On the 12th day of August, 1996, the Court set this matter
               for final disposition on the 19th day of September, 1996 with
               parties having the right to appear, to call witnesses and to
               present evidence. As an alternative to appearance on the 19th
               day of September, 1996, the Court allowed the parties to
               present stipulations and briefs to the Court. After considera-
               tion of all the evidence and the entire record.

               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:

               1.      The prayer of plaintiff for a writ of Mandamus to issue
                to the District Attorney General for the 18th Judicial District
               and to the District Attorney General for the 19th Judicial
               District is not well-taken and the prayer is denied and dis-
               missed.

               2.     The Court finds no basis upon which to issue a declara-
               tion that the sheriff of Sumner County, Tennessee has a duty
               and obligation to take and incarcerate persons when directed
               by a municipal court judge.

               3.     Costs are assessed equally to the parties for which
               execution may issue, if necessary.



               Thereafter, on November 20, 1996, the Trial Court overruled the motion of

appellants for stay pending appeal.




                                             -5-
                                                III.

                                           Discussion

                There is no transcript or statement of the evidence, but the parties have stipulated

the pertinent facts.



                Appellants assert that Article 1, Section 8 of the Constitution of Tennessee

prohibits non-lawyer judges from presiding over the trial of defendant for an offense punishable

by incarceration, citing State ex rel Anglin v. Mitchell, Tenn. 1980, 596 S.W.2d 779.



                In the cited authority, two juveniles were found to be delinquent and committed

to the Department of Corrections which, at that time, included institutions for juveniles. From

the extensive discussion of the law and disposition of the appeal, it is presumed that the trial

judge was not a lawyer, although the opinion does not state this as a fact.



                Based upon the constitutional, statutory and judicial authorities cited, a majority

of the Supreme Court reversed the committal and said:

                   The Constitution of Tennessee contains no specific require-
                ment that judges be “learned in the law,” or that they be
                licensed or admitted to the practice of law.

                   The only constitutional requirement for judges of the
                Supreme Court is that they must be thirty-five years of age
                and must have been a resident of the state for five years
                before election. See Article VI, Section 3. Other judges
                must be thirty years of age, and must have been a resident
                of the state for five years and of the circuit or district for
                one year before election. See Article VI, Section 4. Any
                additional requirements must be imposed by the legislature,
                which may supplement the minimum requirements of the
                Constitution so long as the additional requirements are
                reasonable and not inconsistent with our Constitution.
                LeFever v. Ware, 211 Tenn. 393, 365 S.W.2d 44 (1963).
                                              ----
                   Prior Tennessee cases are not helpful on the precise
                question we address.
                                              ----
                   All were decided under statutory enactments. None even
                alluded to the “law of the land” or “due process” require-
                ments of Article I, Section 8 of our Constitution. This is the
                only question we face.

                                                -6-
                               ----
   In 1975, the case of Perry v. Banks, 521 S.W.2d 549
(Tenn. 1975), came before this Court. Therefore, three mem-
bers of this Court dismissed the appeal as moot, and did not
pass upon the issue.
                               ----
   The dissenters in Perry v. Banks traced the history of the
evolving standards of due process in relation to the Sixth
Amendment right to counsel and stated that “[t]here is
involved something that ‘shocks the most fundamental
instincts of civilized man,’ when a child is taken before ... (a)
lay judge who knows nothing of the treatment to be accorded
citizens due to lack of experience and training in the rigorous
discipline of the law.’” 521 S.W.2d at 553-54.

       Further, the dissenting members said:
       It is elementary that the right to counsel schooled
       in the intricacies and complexities produced by the
       criminal law explosion of the last decade is diluted
       and may even be destroyed when basic constitu-
       tional rights are asserted before a judge who does
       not possess the skill and knowledge necessary to
       protect those rights, recognize the issues and
       resolve them according to established legal princi-
       ples. There is an inherent inconsistency in guaran-
       teering the right to counsel without providing an
       attorney judge to preside at the hearing. 521
       S.W.2d at 555

   The dissenters, therefore, held “that for a non-attorney
judge to preside over any criminal trial, juvenile investiga-
tion, or hearing under the laws relating to the mentally ill
or any other proceeding wherein a citizen may be deprived
of his liberty, is violative of the Fourteenth Amendment to
to the Constitution of the United States and Article I,
Section 8 of the Constitution of Tennessee. (Emphasis
supplied). 521 S.W.2d at 555.

   There the matter stood until the Court of Appeals for the
Middle Section handed down its decision in the companion
cases of State v. Williams and State v. Wiser, on June 27,
1975. These cases involved the trial and commitment of two
juveniles before a nonlawyer judge. Judge Drowota, in a
brilliant opinion, took note of the advancing standards of due
process and held that “the fundamental fairness required by
the due process clause of the Fourteenth Amendment of the
federal constitution and Article I, Section 8 of the state
constitution require the use of an attorney judge.” State v.
Williams, Slip op. at 8 (Tenn.App. June 27, 1975).

          The language of the Court is compelling:
       We feel that it is inherently inconsistent to
       guarantee the right to counsel without also giving
       the defendant the right to have an attorney judge
       when the result of the proceeding is a deprivation
       of liberty. A reasonable likelihood or probability


                               -7-
       of prejudice exists when lay judges preside over
       juvenile proceedings that result in incarceration.
       Prejudice is likely or probable because legal
       proceedings have become increasingly complex
       and lay judges lack the requisite expertise to
       resolve complex legal issues and to comprehend
       and use counsel’s legal arguments. (Emphasis
       supplied). Slip op. at 6
                              ----
  That which we accepted without question in an earlier era,
today we reject in view of evolving standards of fairness.

   “Due process of law is the primary and indispensable founda-
tion of individual freedom. It is the basic and essential term in
the social compact which defines the rights of the individual
and delimits the powers which the state may exercise.” 387
U.S. at 20, 87 S.Ct. at 1439-1440, 18 L.Ed.2d at 542.

   If the constitutions by which we govern ourselves are to have
continuing vitality and validity they must be sufficiently elastic to
grow and expand and absorb and deal with the changes that have
marked the evolution of our state and nation and point to its pro-
gress. This is why due process can never be a static doctrine of
the law. It is not a legal cadaver embalmed in perpetuity. It is a
living, breathing, vibrant and vital tenet of our political faith.
                                ----
   [1] A basic requirement of due process is the right to a fair
trial in a fair tribunal. In re Murchison, 349 U.S. 133, 75 S.Ct.
623, 99 L.Ed. 942 (1954).

   [2] Our federal constitution, through the Fourteenth Amend-
ment, coins the phrase “due process of law.” Our state
constitution, through Article I, Section 8, expresses the same
idea when it prohibits imprisonment and deprivation of life or
liberty, but by “the law of the land.” The origin of this phrase in
the Tennessee constitution is the Magna Carta. The “law of the
land” proviso of our constitution is synonymous with the “due
process of law” provisions of the federal constitution.
Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739 (1965).
                                 ----
   Next, in chronological order came In re Gault, 387 U.S. 1,
87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
                                 ----
   There the Court said:
         Thus, in terms of potential consequences, there
         is little to distinguish an adjudicatory hearing
         such as was held in this case from a traditional
         criminal prosecution. For that reason, it engen-
         ders elements of “anxiety and insecurity” in a
         juvenile, and imposes a “heavy personal strain.”
         421 U.S. at 530-31, 95 S.Ct. at 1786, 44
         L.Ed.2d at 356.


       Further, the Court made it clear that it could perceive
“no persuasive distinction” in the risk involved in a delinquency


                               -8-
hearing “and a criminal prosecution, such of which is designed
‘to vindicate [the] very vital interest in the enforcement of
criminal laws.’” 421 U.S. at 531, 95 S.Ct. at 1786, 44 L.Ed.2d
at 356.

  Thus, we are instructed by the Supreme Court of the
United States that the right to counsel is of a “fundamental
character” embraced within the essential requirements of due
process, that juvenile trials must accord with “the essentials of
due process and fair treatment,” that no person may be deprived
of his liberty for any offense unless represented by counsel,
and that there is virtually no distinction between a delinquency
hearing in juvenile court and a criminal court trial for a like
offense.

   The right to counsel becomes “as sounding brass, or a tinkling
cymbal,” if there is not a concomitant right to a trial before a
qualified judge. Extending the guiding hand of counsel is an idle
gesture if there is absent the gingerly approach or a genuine
judge. There is, perhaps, some warrant for a lay judge in the dis-
position of small offenses and due process is not offended;
however, in juvenile delinquency cases, where loss of liberty for
years is involved, there is no place for an untrained judge.
                                ----
   We hold, in the context of a juvenile commitment, that “the
law of the land”provision of Article I, Section 8 of the Constitu-
tion of Tennessee does not permit a judge who is not licensed
to practice law to make any disposition of a juvenile that
operates to confine him or deprive him of his liberty.

   We do not hold that a juvenile judge - or any other judge -
must be licensed lawyer to hold office or to exercise other
duties enjoy other jurisdictions. (sic)
                               ----
   This cause is remanded to the juvenile court at Centerville
for an adjudicatory hearing before a legally competent judge.


Two of the justices dissented, stating:

   If the rights of either of the two juveniles whose cases are
involved here have in any way been impinged upon by the
procedures followed at their hearing in April 1976, there are
and have always been ample statutory procedures available
for the correction of such errors. To hold that the judge who
tried them, however, is constitutionally disqualified from
hearing the case is quite another matter and is a departure
from precedent and principle in which we cannot concur.

   As previously stated, there can no doubt that the majority
opinion is well-in-tended and that its purpose is to make
is to make meaningful the right to counsel constitutionally
guaranteed to youthful offenders, including the right to be
represented at the hearing of a juvenile delinquency charge
and to be advised of the broad appeal and right to a retrial
afforded in the statutory system, including a jury trial if


                               -9-
               trial is desired. In our view, these desirable ends could be
               achieved very simply and with a much less drastic effect
               upon the juvenile justice system by requiring that in every
               case in which a juvenile is charged with violation of the
               criminal law and with being a delinquent, he must be
               afforded counsel and that there can be no waiver of that
               right.

                  It would be a simple matter to reverse this case and to
               require a re-trial with proper representation of the
               accused, including advice to them of their right to appeal
               if found guilty. The law in this state does not and, to our
               knowledge, never has permitted final judgment to be ren-
               dered against minors in civil litigation without assurance
               that their interests are safeguarded by a guardian ad litem,
               general guardian or other representative. It would seem
               that persons charged with delinquency are entitled to at
               least the same rights, and that parents, custodians or
               others should not be permitted to waive a juvenile’s right
               to counsel. Such a holding, in our opinion, would
               preserve intact the juvenile justice system and would also
               preserve the public policy announced by the legislature
               therein.



               The Supreme Court’s adjudications are final and conclusive upon questions

determined by it, subject only to review, in appropriate cases, by the Supreme Court of the

United States. All other Courts are constitutionally inferior tribunals subject to actions of the

Supreme Court, and must abide by the orders, decrees and precedents of superior courts.

Constitution of Tennessee, Art. 6, § 1, Barger v. Brock, Tenn. 1976, 535 S.W.2d 337.



               The Court of Appeals has no authority to overrule or modify opinions of the

Supreme Court, Bloodworth v. Stuart, 221 Tenn. 567, 428 S.W.2d 786 (1967).



               Until a prior decision of the Supreme Court has been reviewed and reversed by

the Supreme Court, it is error for a lower court to disregard it. Payne v. Johnson, 2 Shannon,

Tenn. Cas. 542 (1877).



               The decision in State v. Anglin applied only to the rights of juveniles. However,

the extensive discussion quoted above is strong indication of inclination of the Supreme Court



                                              -10-
with reference to the rights of adults, with which a majority of this panel agree, preferring to

follow the strong obiter dicta rather than cited authorities from other jurisdictions.



               The majority of this panel holds that the constitutional right of any citizen of

Tennessee is violated by an order of incarceration of a judge who is not licensed to practice law.



               In the light of the foregoing, the issue as to mandamus is moot and requires no

discussion.



               The judgment of the Trial Court declaring that the present city Judge of White

House has authority to commit citizens to confinement as punishment is reversed and vacated.

The cause is remanded to the Trial Court for entry of judgment consistent with this opinion and

such other proceedings as may be necessary and proper. All costs, including costs of this appeal,

are taxed against the City of White House.



                           REVERSED AND REMANDED



                                               ___________________________________
                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION




CONCURS:



_______________________________
SAMUEL L. LEWIS, JUDGE



DISSENTS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE




                                               -11-
