An open letter to Associate Supreme Court Justice Frank F. Drowota, III

Justice Drowota: close the municipal courts

Putnam Pit editor

I have read your concurring opinion in Summers v. Thompson [764 SW 2d] at least two dozen times, but I have the same problem with it every time:

How do I reconcile the opinion that "[t]o protect the party brought before a court, the judge must be not only impartial but must be independent of the will or whim of the political departments" [764 SW 2d, at 189], with the fact that city courts like the one in Cookeville continue to operate with a part-time judge, bought and paid for by the very political departments you warn about?

Justice Drowota, you wrote:

    "I cannot concede that because a municipal court may exercise limited judicial powers, it is somehow divested of its essential character as a court. [764 S.W. 2d, 194].

    "If [a] municipality is a government within itself, and must have power to punish for offenses against its laws, . . . then the citizens of a municipality may no more be deprived of due process to any greater or lesser extent simply because the limited jurisdiction of the tribunal before which they stand -- a de minimis violation of constitutional rights would be opening the door to greater deprivations if transitory but nevertheless compelling circumstances caused the exception to swallow the rule.

    " . . . The protection of constitutional rights does not depend on the type of court before which a person may be brought."

Now, we find that  The Commission on the Future of the Tennessee Judicial System, asked by your own Supreme Court to look at how the state judiciary might look in 30 years, has concluded:

    "Strictly local municipal courts offer a separate, substandard justice and warrant a
    thorough review of their own. At their best, the present-day system of city courts is a
    convenient means for disposing of relatively minor matters, close at hand, with less
    formality than state courts. They become, in essence, an administrative forum of
    alternative dispute resolution, with the right to appeal to the state judicial system.

    At their worst, they are merely revenue agencies masquerading as courts. Their sole
    reason for being is the funds that their municipality draws from them. If the funds
    disappeared, few of the cities would consider the court an important civic service.
    Their limits and oversight are ill-defined, and their flexibility can sometimes disguise
    mere arbitrariness.

    Municipal courts are a substantial topic unto themselves. There are some 200 to 300
    such courts across the state, operating so independently that even obtaining an exact
    count is difficult."

    We believe they fall much closer to the worst model than to the best one. A majority of
    complaints about judges that come to the Administrative Office of the Courts originate
    with municipal courts.

Justice Drowota, everyone knows city courts exist to separate drivers from their money, and a part-time judge retained on the basis of performance is likely to find that generated revenue is the main criterion by which retention is determined, even when the charter sets a term of office. That means the cities have subverted the judicial function with which they have been entrusted by the legislature to a form of debt collection. The "justice" administered is "substandard," your own commission found. That's why the commissions said:

    [Municipal courts'] sole reason for being is the funds that their municipality draws from them. If the funds disappeared, few of the cities would consider the court an important civic service.

Justice Drowota, when courts operate like the one in Cookeville, they make the entire concept of the judiciary a laughingstock. Few people know that a municipal judge is just a part time guy in a robe. They expect Justice with a capital J,  not "substandard" justice. They expect an independent judiciary, which as the Supreme Court  recognizes in Rule 10, Canon 1, "is indispensable to justice in our society."

Is there a due process and fair trial issue when there is no separation between the legislative and judicial branches of government? Municipal judges, who make salaries from administrating this substandard system, argue that the state offers a trial de novo if a defendant is not satisfied with the result in a cash-register court.

But the United States Supreme Court said that if a trial is not before a disinterested and impartial judicial officer, the offer of a trial de novo down the road is not a persuasive response. "This 'procedural safeguard' does not guarantee a fair trial in the mayor's court. . . [and p]etitioner is entitled to a neutral and detached judge in the first instance." [Clarence Ward v. Village of Monroeville [409 US 57, 34 L Ed 2d 267, 93 S Ct 80 (No. 71-496)]

The test, the court held in Ward, is whether the situation is one "which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused." [409 US at 60]

Justice Drowota, if a $4,000 per year part-time municipal judge who wanted to be retained was near the end of his council-appointed term but behind in revenue collecting, would he feel a temptation "to forget the burden of proof required  to convict the defendant," or to "lead him not to hold the balance nice, clear and true between the state and the accused?"

Does it seem to you, sir, that being the municipal "judge" benefits a lawyer's private practice enough that if the city needed more money he would work their court and squeeze defendants so as to be retained? The monetary benefit, after all, is not just the salary the city pays but the added private business the "judge's" firm makes. Mr. Summers was an exceptional man to refuse to manipulate fines. He was fired. The court found the firing legal. What is the message here to a part-time judge?

But, some may ask, how are municipalities to make up the money they would lose if the judge were neutral?

Justice Drowota, in Summers  you quoted Justice Freeman's holding in Lynn v. Polk [76 Tenn at 144]:

    "[C]onsideration of consequences is not for us -- only duty is to be known, and faithfully done."

You went on to note: "No argument from policy, or inconvenience, or the harmony of the system can be permitted to have any weight in the decision of [a constitutional] question." [Sheppard v. Johnson, 21 Tenn, 296 (1841)]

Justice Drowota, if a fair trial takes precedence over freedom of the press when there is a conflict, which takes precedence when fair trail conflicts with municipal revenue generation?

There can be no impartial judicial officer when the part-time "judge" is hired by the same body that spends the money the "judge" generates.

If a prisoner were being beaten would the court allow his jailers to continue to beat him until the right case comes along? Or would the court issue an order restraining the government from further violations of the prisoner's rights?

Justice Drowota, every defendant going before a so-called municipal "court" is being beaten up by the system.  Shut them down. Shut them Down. Shut them down.



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