                  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




                                          6
