One Last Appeal 

The state Supreme Court should review a flawed judgment against appointing a second Juvenile Court judge.

Back in 2006, when Shelby County tried to enforce a term-limits rule for county commissioners, some officials challenged the rule under the Tennessee Constitution. The trial court upheld the provision; the appellate court struck it down; and the county took it to the Tennessee Supreme Court, where the county ultimately prevailed. 

With luck, a similar judicial ping-pong may happen over the commission's attempt to appoint a second judge at Juvenile Court.  

On Monday, a Tennessee court of appeals panel ruled that the 1967 state law authorizing the Shelby County Commission to appoint a second judge violated the state Constitution, reversing a trial court decision siding with the commission. The opinion is based on a strained reading of the act and should be appealed.

The 1967 statute granted the County Commission the authority to appoint a second judge whenever it deemed such an appointment necessary. In 2006, the commission passed a resolution to fill the vacancy. Judge Curtis Person, who would have had to share power with the second judge, then sued to block that action. The second judgeship has remained vacant by court order, pending the litigation.

On the merits, the second judgeship is a sound judicial reform, endorsed by the Memphis Bar Association, supported by findings of a special study by the National Center for State Courts, and ratified by a County Commission report summarizing months of public hearings. It represents the majority model of juvenile court structures around the country. More important, the opinion unfairly overrules the will of the people, as expressed by the state legislature and County Commission.

The 1967 act established the original Juvenile Court and then provided:

"[T]here is hereby created a Second Division of the Court. ... The Judgeship of said Second Division shall remain vacant until the Quarterly County Court of Shelby County shall determine the need therefore."

Yesterday's appellate court reasoned as follows:

1) Under Article VI, Section 1 of the Tennessee Constitution, only the state legislature can "create" a court.

2) Under Tennessee case law, the presence of a judge is an essential element of a court — a court doesn't exist without a judge. Thus, the state legislature cannot create a court without also creating a judgeship.

3) The act in question does not really create a judgeship, because it leaves the question of when to fill the vacancy open to the County Commission. 

4) By giving the commission power to say when the second judgeship would be needed, it gave the commission the power to say if it would ever be needed, which contradicts point one.

Points one and two are fair enough, but from there onward the court goes astray.

First, the act's plain language clearly states that the legislature "hereby created" the second division of the court. The County Commission did not "create" it.

Second, the act clearly does establish a "judgeship." Its plain language refers to "the Judgeship of said Second Division," which is held vacant. 

The appellate court goes out of its way to interpret the act's language to render the act unconstitutional, reversing the normal presumption in favor of construing legislation in a manner to keep it constitutional.

The opinion also proves too much. It is not at all unusual for the legislature to create a new local court and allow local government to fill the vacancy. But by the appellate panel's logic, any time the legislature does not simultaneously fill a new local court with a judge the instant it creates it, it is violating the Tennessee Constitution. In all such cases, there is some length of time during which the "court" does not come into existence until the local body fills its vacancy; by the logic of the opinion, the local government then "establishes" the court, in violation of Article VI, Section 1.

Mindful of prior cases saying the state legislature could not delegate to local bodies the power to "create" courts, the 1967 legislature was very careful to do the creating itself, leaving the local body with only the narrow question of filling the vacancy. The panel opinion simply disregards all this.

Getting a second judge is a good idea. So is challenging a decision which unfairly and permanently ties the hands of the state legislature and the County Commission. We should appeal the case to the state Supreme Court and get the issue decided once and for all. 

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