         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 23, 2002 Session

             STATE OF TENNESSEE v. NATHAN SCOTT POTTER

                     Appeal from the Criminal Court for Sullivan County
                          No. C45,195 Phyllis H. Miller, Judge



                                 No. E2001-01760-CCA-R3-CD
                                         April 2, 2002



JOSEPH M. TIPTON, J., concurring.


        I concur in the results reached in the majority opinion. However, I disagree with its implicit
conclusion that legislative action regarding pretrial procedure in cases before the courts does not
infringe upon the separation of powers doctrine.

        Specifically, the majority opinion states that legislative action regarding pretrial procedure
does not interfere with the courts’ authority to adjudicate substantive issues. In other words, it
interprets the supreme court’s analysis in State v. Mallard, 40 S.W.3d 473 (Tenn. 2001), regarding
the inherent power of the courts relative to the separation of powers doctrine, to be limited to trial
matters. I respectfully disagree with this interpretation.

        In Mallard, the court acknowledged the legislature’s authority to enact rules of evidence in
certain circumstances. However, it stated that the power “must inevitably yield when it seeks to
govern the practice and procedure of the courts.” Id. at 480 (emphasis added).

               Only the supreme court has the inherent power to promulgate rules
               governing the practice and procedure of the courts of this state . . . .
               Furthermore, because the power to control the practice and procedure
               of the courts is inherent in the judiciary and necessary “to engage in
               the complete performance of the judicial function,”. . . this power
               cannot be constitutionally exercised by any other branch of
               government . . . .

Id. at 480-81 (quoting Anderson County Quarterly Court v. Judges of the 28th Judicial Cir., 579
S.W.2d 875, 877 (Tenn. Crim. App. 1978)) (additional citations omitted). Although the issue in
Mallard focused the supreme court’s attention on the inherent judicial power to determine the
relevance of evidence at trial, the court did not purport to limit the courts’ inherent powers to that
function. The “legislature can have no constitutional authority to enact rules, either of evidence or
otherwise, that strike at the very heart of a court’s exercise of judicial power.” Id. at 483. “It is well
settled that Tennessee Courts have inherent power to make and enforce reasonable rules of
procedure.” State v. Reid, 981 S.W.2d 166, 170 (Tenn. 1998); see also Van Tran v. State, 6 S.W.3d
257, 265 (Tenn. 1999). Thus, the fact that the provisions in question in the present case are
procedural rather than evidentiary is of no import to the separation of powers analysis.

        I acknowledge that I have previously ruled that Rule 4, Tenn. R. Civ. P., regarding the
requirement of a summons applies to cases under the Motor Vehicle Habitual Offenders Act. See
State v. Gary M. Sexton, No. E2000-00167-CCA-R3-CD, Knox County (Tenn. Crim. App. Nov. 6,
2001). However, the court also concluded that the show cause order issued by the trial court
essentially satisfied the purposes of a summons.

         In this respect, I note that the supreme court in Mallard stated that “the courts of this state
have, from time to time, consented to the application of procedural or evidentiary rules promulgated
by the legislature.” 40 S.W.3d at 481. It stated that in the interest of comity, the judiciary consents
to legislative acts regarding evidence and procedure when the acts “(1) are reasonable and workable
within the framework already adopted by the judiciary, and (2) work to supplement the rules already
promulgated by the Supreme Court.” Id. I believe that the procedures enacted by the legislature
regarding habitual motor offenders are intended to address the particular problem of the expeditious
determination of bad or dangerous drivers and removal of them from Tennessee roads. I also believe
that the procedures provided in the Act are sufficiently the equivalent of the rules of procedure that
the Act should be acknowledged as controlling the procedure for cases under the Act.



                                                                 _____________________________
                                                                 JOSEPH M. TIPTON, JUDGE




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