Citation Numbers： 596 S.W.2d 779, 1980 Tenn. LEXIS 416
Judges： Henry, Brock, Fones, Cooper, Harbison
Filed Date： 3/10/1980
Status： Precedential
Modified Date： 11/14/2024
These consolidated juvenile habeas corpus proceedings raise the significant issue of whether an adjudication of delinquency and a commitment to the Department of Corrections by a nonlawyer judge violate Article I, Section 8 of the Constitution of the State of Tennessee.
The Chancellor responded in the affirmative. The Court of Appeals reversed. We affirm the Chancellor.
I.
Factual Background
Timmy and Randy Anglin are two of the seven children born to John and Effie Mae Anglin of Centerville. The Anglins have been separated for more than eight years, but are not divorced. John Anglin has a record of at least one arrest, drinks heavily and has a live-in arrangement with another woman.
Effie Mae Anglin is mentally retarded, has brain damage, and is in and out of Central State Hospital for stays of from ten to twelve days. She is “totally unable to discipline or supervise her children” and her home is “unkept and inadequate for the family needs.” The petitioners reside variously with their parents; however, they live primarily with their mother. Apparently, this stems from their dislike of the woman residing with their father.
Timmy was fourteen years old at the time of the offense and hearing. He has a full scale I.Q. of 76, as measured by the Wechsler Intelligence Scale for Children, which places him in the "borderline category of intellectual functioning as classified by the W.I.S.C.” The probation report asserts that he is a “constant troublemaker” and lists a rather extreme background of infractions of good order and discipline and indicates a belligerent and antisocial attitude. He is a dropout from school with no future educational plans.
Randy was thirteen years old at the time of the offense and hearing. He has a full scale I.Q. of 84, as measured by the Wech-sler Intelligence Scale for Children. This places him low in the “Dull Normal” category and only six points above the borderline category. Randy’s record of infractions is not as extensive as Timmy's. The probation report, while recognizing that he has avoided serious trouble, suggests that he seems to enjoy doing illegal acts and has no remorse for them; that his attitude and behavior is worsening and he appears to be leaning toward the delinquent and violent type crimes. It “strongly” suggests that Randy be given “a very comprehensive mental evaluation.”
Petitioners were arrested on Sunday, April 4, 1976, on charges of public profanity and the burglary of three record players from the Baptist Church at Centerville. They were placed in jail and the next day were released to the custody of their father.
Their cases were disposed of on April 13, 1976. The public profanity charge was dropped or retired. On the basis of a finding that each petitioner had “Committed 3rd Degree Burglary,” and was delinquent, each was committed to the Department of Corrections for an indefinite period of time. See Section 37-237, T.C.A.
II.
Constitutional and Statutory Background
The Constitution of Tennessee contains no specific requirement 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
It is an historic fact that the Tennessee Legislature did not deem it necessary or appropriate until 1961 to superimpose upon the constitutional requirements any qualifications which Tennessee judges must meet. In 1960, a layman became a candidate for the Tennessee Supreme Court, running against one of Tennessee’s most distinguished justices. Then, as now, statewide judicial contests for the appellate judiciary attracted little voter attention; issues were virtually non-existent; financial considerations precluded any significant outlay of funds for campaign purposes, and voter participation left much to be desired. In the ensuing election, the layman’s name appeared on the ballot in only 27 of 95 counties,
This startling development galvanized the Tennessee General Assembly into action. The result was Chapter 283, Public Acts of 1961. By preamble, the Legislature declared:
Whereas, It was and is the purpose and intent of this provision [Article VI, Section 1 of the Constitution] to provide that the judicial power of the State shall be exercised by persons qualified so as to act; and
Whereas, The qualifications of judges as prescribed in §§ 3 and 4 of said Article 6 do not purport to be exclusive of any qualifications necessarily implied in the Constitution in the creation of the Judicial Department; . . .. (Emphasis supplied).
Thereafter, the General Assembly ordained that:
judges of the Supreme Court, Court of Appeals, Chancery Courts, Circuit Courts, and courts exercising the jurisdiction imposed in one or more of the last three named courts, shall be learned in the law, which must be evidenced by said judge being authorized to practice law in the courts of Tennessee.
This exact language was carried forward into our Official Code and appears as a part of Section 17-119, T.C.A. It, of course, has no application to county judges, as such;
III.
Background of Tennessee Decisional Law
Prior Tennessee cases are not helpful on the precise question we address.
In 1926, this Court, in considering an act creating the office of county judge in Se-quatchie County and requiring that he be a person “learned in the law,” held that this phase did not mean that the occupant must be a licensed attorney, but merely was a directive to the voters, a majority of whom settled the question. Heard v. Moore, 154 Tenn. 566, 290 S.W. 15 (1926). See also Morrison v. Gower, 154 Tenn. 624, 288 S.W. 731 (1926).
LaFever v. Ware, supra, dealt with the General Sessions judgeship of White County. The pertinent private act provided that the incumbent “shall be a licensed attorney.” The Court held the phrases “learned in the law” and “licensed to practice law” to be synonymous and sustained the constitutionality of the act. While perhaps dicta, the Court made these significant and courageous observations.
*782 We do not see how it reasonably could be presided over by a layman. The duties are many and varied, including the power to hear and dispose of divorce cases. It is universally known that the trial and disposition of such cases touch nearly every facet of the law and it is beyond the understanding of this Court that any person untrained in the law could think him- ■ self competent to discharge the complex duties of this office. (Emphasis supplied). 211 Tenn. at 408, 865 S.W.2d at 50
This was over sixteen years ago — thirty-nine days before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), requiring the state courts to appoint counsel for indigent defendants in felony cases. The relentless march of due process was just reaching the line of departure. Even then, our Supreme Court denounced the concept of lay judges handling matters of complexity.
In State v. Freshour, 219 Tenn. 482, 410 S.W.2d 885 (1967), this Court held that the General Sessions judge of Cocke County need not be authorized to practice law if otherwise qualified.
While not exhaustive, this enumeration of cases is sufficient to show the general nature of our decisional law. All were decided under statutory enactments. None even alluded to the “law of the land” or “due process” requirements of Article I, Section 8 of our Constitution. This is the only question we face.
This issue is not completely new to our courts; however, it has heretofore evaded review.
In 1975, the case of Perry v. Banks, 521 S.W.2d 549 (Tenn.1975), came before this Court. This was a declaratory judgment action wherein the basic question was whether the county judge of Knox County must be a lawyer. As a result of an election intervening between the judgment in the lower court and the hearing in this Court, the “questions presented had been deprived of practical significance.” Therefore, three members of this Court dismissed the appeal as moot, and did not pass upon the issue.
Two members of the Court expressed the view that:
this case presents issues of overriding, recurring and substantial public importance. Potentially the vast majority of county election commissions may face this question at any given general election. It demands resolution lest it become an issue “capable of repetition, yet evading review.” (citation omitted). 521 S.W.2d at 550
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 “[tjhere 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 constitutional 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 principles. There is an inherent inconsistency in guaranteeing 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 investigation, 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 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
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 the deprivation of liberty. A reasonable likelihood or probability 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
This Court granted certiorari in State v. Williams, 547 S.W.2d 895 (Tenn.1976), for the sole purpose of resolving “the single and significant issue of whether a non-lawyer juvenile judge may constitutionally incarcerate a juvenile or deprive him of his liberty.” 547 S.W.2d at 895.
We noted that this was a question of “far-reaching significance,” and “of vital public importance,” which “this Court is ready to address” and “[t]he time is now opportune.” 547 S.W.2d at 896. Unfortunately, the case came to us with a fatally defective bill of exceptions and on a record which failed to disclose the one indispensable fact, i. e., whether the convicting and committing judge was a lawyer. We had no alternative but to affirm the lower court.
The time continues to be “opportune”; the question continues to be “significant” and of “vital public importance,” and the issue continues to recur but evade review. Today, we respond.
IV.
The Tennessee Juvenile Court System
In the absence of special statutory provisions for juvenile courts, county judges or chairmen of the county courts are juvenile judges, in addition to their other duties.
The General Assembly declared the public policy of the state, inter alia, to be:
To provide a simple judicial procedure through which this chapter is executed and enforced and in which the parties are assured a fair hearing on their .constitutional and other legal rights recognized and enforced. (Emphasis supplied). Section 37-201(4), T.C.A.
Upon a finding that a child is delinquent [has committed any act designated a crime, Section 37-202(3), T.C.A.], the Court has the discretion to “retain jurisdiction and control . . . until he or she shall have reached the age of twenty-one (21) years.” Section 37-203(b)(3)(c), T.C.A. This, notwithstanding the Legal Responsibility Act of 1971 lowering the age of minority to age eighteen (18). Section 1-313, T.C.A.
While the Act contemplates informal proceedings, the law requires that minutes be kept. Section 37-224, T.C.A.
Upon a finding of delinquency (commission of a criminal act) various dispositional options are available to the judge, to include committing the child to the State Department of Corrections. Section 37-231, T.C.A. This commitment is for an indefinite time, Section 37-237(a), T.C.A., but the Commissioner, with the assent of the committing court, may discharge the child and terminate the custody, control and supervision. Section 37-237(g), T.C.A. An order of commitment based upon a finding of delinquency may only be set aside by the committing court for fraud, mistake, lack of personal jurisdiction or newly discovered evidence. Section 37-238(a) T.C.A.
Appeal is to the circuit court and must be taken within five (5) days, following the disposition, excluding Sundays, Section 37-258(a), T.C.A.; however, an appeal does not suspend the order of the juvenile court nor operate to release the child from custody. Section 37-258(b), T.C.A. Pending the hearing, the circuit judge may make the same temporary disposition of the child as the juvenile court, but pending the circuit court’s temporary order, the order of the juvenile court remains in effect. Section 37-258(b), T.C.A.
This is the nature of the juvenile justice system. In its dealings with delinquent children — those who are charged with the commission of criminal offenses — it differs from the criminal courts only as to the disposition of the offender. In some instances the punishment is lighter; in others it is heavier. As an example, in this case an indefinite term for third degree burglary was a maximum sentence of seven years for Timmy and eight years for Randy. Had they been convicted in the criminal court system, as adults, the sentence of three (3) to ten (10) years would be served in approximately two years. There are variables which may add to or take from this figure.
This Court unanimously declared in Patrick v. Dickson, 526 S.W.2d 449 (Tenn.1975):
Indeed, the entire juvenile court structure, despite recent renovations and innovations, continues to constitute, in a large measure, a junior criminal court.
This characteristic of these courts was recognized by the Supreme Court of the United States in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), wherein the Court points out that “there is a gap between the originally benign conception of the system and its realities” and observes that recent cases require “that [the] courts ‘eschew the “civil” label of convenience which has been attached to juvenile proceedings’ and that the juvenile process ... be candidly appraised.” 526 S.W.2d at 451
Later, this Court in State v. Johnson, 574 S.W.2d 739 (Tenn.1978), speaking through Justice Harbison, stated:
[C]ourts in recent years have emphasized that in practical effect persons involved in juvenile proceedings may be deprived of their liberty. Increasingly, concepts of the criminal law, and in particular constitutional principles designed to protect the rights of individuals charged with crime, have been deemed to be applicable to proceedings involving juvenile offenders. 574 S.W.2d at 741
It is this deprivation of liberty that causes us concern. The incarceration of a child deprives him or her of the happy pursuits and unforgettable joys of childhood’s all too brief hour. Even worse than that deprivation is the undeniable fact that all too often reform schools do not reform; rehabilitation centers do not rehabilitate; happiness
Ultimately, however, we confront the reality of that portion of the Juvenile Court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence— and of limited practical meaning — that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a “receiving home” or an “industrial school” for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes “a building with whitewashed walls, regimented routine and institutional hours . . . .” Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees and “delinquents” confined with him for anything from waywardness to rape and homicide. 387 U.S. 27, 87 S.Ct. 1443, 18 L.Ed.2d 546
See Mr. Justice Cooper’s opinion in Arwood v. State, 62 Tenn.App. 453, 463 S.W.2d 943 (1970), expressing similar views.
We note that, according to the Tennessee Commission on Children and Youth, as of June 14, 1979, there were 101 juvenile judges (including 25 general sessions judges who exercise juvenile jurisdiction) in Tennessee. Only 35 or 34.6% of these were licensed attorneys. According to the Tennessee Law Enforcement Planning Agency, during the calendar year 1974, there were a total of 29,358 delinquency petitions filed in the juvenile courts of Tennessee. These delinquency petitions resulted in 2,469 commitments to juvenile institutions. See Tennessee Department of Corrections, Annual Report 1973-1974 (Í975). Assuming that the commitments follow.the percentages of nonlawyer judges this would indicate that during that year alone 1,613 Tennessee children were deprived of their liberty by judges who had no expertise or training in the law.
V.
The Advancing Standards of Due Process
The cavalier treatment given to this significant problem by the Court of Appeals for the Western Section to the contrary notwithstanding, due process is an evolving and advancing standard subjecting even old and established practices to close constitutional scrutiny. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). 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 foundation 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 progress. 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. As Cardozo once said, “A constitution states or ought to state, not rules for the passing hour but principles for an expanding future.” And, as Frankfurter reminded in Wolf, “[Bjasic rights do not become petrified as of any one time, . . . It is of the very nature of a free society to advance in its standards of
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).
Our federal constitution, through the Fourteenth Amendment, 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). We have previously held that the applicability of the law of the land clause of our state constitution is a fundamental issue which properly may be raised on habeas corpus. State ex rel. Anglin v. Mitchell, 575 S.W.2d 284 (Tenn.1979).
Anyone having any doubts as to the assertion that due process and the law of the land are advancing standards may quickly dispel those doubts by turning to the annotation under Article I, Section 8, appearing in Volume 1, T.C.A. For example, less than a century ago this Court was holding that imprisonment might be inflicted for failure to pay city fines, penalties and costs. Mosley v. Gallatin, 78 Tenn. 494 (1882). Less than three quarters of a century ago we were holding that a code section requiring the separation of “white and colored passengers” on street cars did not violate Article I, Section 8 of our Constitution. Morrison v. State, 116 Tenn. 534, 95 S.W. 494 (1905).
The greatness of our constitutions stems from their elasticity, their ability to expand to solve emerging problems and to guarantee a high order of individual rights, liberties and freedoms.
Nowhere is the advancing standard of due process better exemplified than in the succession of cases relating to the right to counsel.
In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court, for the first time, held that the right to counsel is of a “fundamental character” embraced within the due process requirements of the Fourteenth Amendment. Under the facts of the. case and where the offense charged was capital in nature, the Court found a due- process violation. It, however, left open the question of “whether this would be so in other criminal prosecutions or under other circumstances.”
In Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), the Supreme Court held that refusal to appoint counsel in a felony case did not necessarily violate the Due Process Clause of the Fourteenth Amendment.
The landmark decision on the right to counsel is Gideon v. Wainwright, supra. Gideon, charged with a felony, defended himself after the trial judge had denied his request for counsel. The Court commenced its opinion by overruling Betts v. Brady, supra. The Court held that the Sixth Amendment right to counsel was “fundamental and essential to a fair trial” and was made obligatory on the states by the Due Process Clause of the Fourteenth Amendment.
Next, in chronological order came In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), involving a fifteen-year old boy who was committed as a juvenile delinquent to the Arizona State Industrial School in a hearing where he was not represented by counsel.. The Court reversed, holding that he was denied due process of law. The crux of the Court’s holding was that in juvenile delinquency cases that may result in confinement the Due Process Clause of the Fourteenth Amendment requires that the child or his parent be notified of his right to be represented by retained counsel, or if unable to afford counsel, that counsel be appointed to represent the child. Overall, this case stands for the broad principle that during a juvenile adjudicatory hearing the Due Process Clause
Three years later in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court held that proof beyond a reasonable doubt was among “the essentials of due process and fair treat-, ment,” during the adjudicatory stage. Taking note that the law of New York, under which this case arose, provides that an adjudication of delinquency is not a “conviction”; that it does not have the usual consequences of a felony conviction; that a cloak of protective confidentiality is thrown about the proceedings;
We made clear in [Gault] that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for “[a] proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.” (Emphasis supplied). 397 U.S. at 365-66, 90 S.Ct. at 1073, 25 L.Ed.2d at 376
The relentless march of the advancing standard of due process achieved substantial momentum in 1972 when the Supreme Court of the United States handed down its decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), holding that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, petty, misdemeanor or felony, unless he is represented by counsel at his trial.
Finally, in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court declared that the double jeopardy clause of the Fifth Amendment, prohibited the trial in a higher court of a child already the subject of an adjudicatory hearing in a juvenile court. In reaching this conclusion the Court recognized the “gap between the originally benign conception of the system and its realities” and the Court’s past response of making applicable in juvenile proceedings “constitutional guarantees associated with traditional criminal prosecutions.” 421 U.S. at 528-29, 95 S.Ct. at 1785, 44 L.Ed.2d at 355.
It reaffirmed the Gault principle that a “proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution,” and that “the term ‘delinquent’ had ‘come to involve only slightly less stigma than the term ‘criminal’ applied to adults.” 421 U.S. at 530, 95 S.Ct. at 1786, 44 L.Ed.2d at 356. 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 engenders 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 hearing “and a criminal prosecution, each 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.
Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He • requires the guiding hand of counsel at every step in the proceedings against him. 287 U.S. at 69, 53 S.Ct. at 64, 77 L.Ed. at 170
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 of a genuine judge. There is, perhaps, some warrant for a lay judge in the disposition 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.
Justice Stewart, dissenting in North v. Russell, infra, voiced .these apt sentiments:
In a trial before such a judge, the constitutional right to the assistance of counsel thus becomes a hollow mockery — “a teasing illusion like a munificent bequest in a pauper’s will.” 427 U.S. at 343, 96 S.Ct. at 2716, 49 L.Ed.2d at 544
Justice Stewart’s additional comments are significant:
But even if it were not possible to demonstrate in a particular case that the lay judge had been incompetent or the trial egregiously unfair, I think that any trial before a lay judge that results in the defendant’s imprisonment violates the Due Process Clause of the Fourteenth Amendment. The Court has never required a showing of specific or individualized prejudice when it was the procedure itself that violated due process of law. “[A]t times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.” Estes v. Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. Id.
Virtually every facet of criminal law is involved in juvenile delinquency hearings. Judges at all levels, and active and knowledgeable practitioners, often dissent and disagree among themselves as they make an honest effort to resolve the complex issues being addressed daily by our criminal courts. We consider it beyond dispute that the dictates of fundamental fairness, the demands of common sense and the developing law of this modern era require that the state supply a law-trained judge in all of our criminal courts of record, which necessarily includes the juvenile criminal court, when conducting adjudicatory hearings in criminal cases. We cannot countenance one law for adult criminal offenders and a wholly different law for juveniles who are charged with an identical offense.
The fact that Tennessee today is served by many non-lawyer juvenile judges who are kindly, considerate and attuned to juvenile problems is of nó constitutional consequence. Good intention is not enough. In dealing with these, “the least among us,” constitutional considerations demand an honest answer to the simple question: “Why not the best?” This is all Due Process and the Law of the Land require; but they will not settle for less.
VI.
An Analysis of North v. Russell
The Court of Appeals and the State rely strongly on North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976).
While we accord great deference to the Supreme Court of the United States and abide, without question, its declarations denouncing deviations from the Constitution of the United States, this does not relieve this Court from the sworn obligation to subject any given question to analysis and examination in the light of the Constitution of Tennessee, designed to determine whether our own constitution requires a greater protection.
Thus, although the Supreme Court in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), held that the Due Process Clause of the Fourteenth Amendment did not assure the right to a jury trial in the adjudicatory phase of a state juvenile court, this Court, in State v. Johnson, 574 S.W. 739 (Tenn.1978), declared that a juvenile “charged with an offense which would constitute a felony” is entitled to a jury trial on appeal to the Circuit Court for a de novo trial.
Our Court of Appeals for the Western Section correctly and concisely held in Merchants Bank v. State Wildlife Resources Agency, 567 S.W.2d 476 (Tenn.App.1978):
A state court can not under a state constitution restrict the rights of its citizens contrary to the rights granted by the Federal Constitution; but a state court can grant to its citizens broader and more comprehensive rights under the state constitution than as allowed by the Federal Constitution. 567 S.W.2d at 479
In State v. Williams, supra, we recognized this principle thusly:
Assuming arguendo that the North principle is applicable to juveniles, this does not preclude our examination of the matter from a standpoint of the state constitution. 547 S.W.2d at 896, footnote 1
Finally, in Miller v. State, 584 S.W.2d 758 (Tenn.1979), the majority of this Court declared:
We are bound by the interpretation given to the United States Constitution by the Supreme Court of the United States. This is fundamental to our system of federalism. The full, final, and authoritative responsibility for the interpretation of the federal constitution rests upon the Supreme Court of the United States. This is what the Supremacy Clause means. However, as to Tennessee’s Constitution, we sit as a court of last resort, subject solely to the qualification that we may not impinge upon the minimum level of protection established by Supreme Court interpretations of the federal constitutional guarantees. But state supreme courts, interpreting state constitutional provisions, may impose higher standards and stronger protections than those set by the federal constitution. It is settled law that the Supreme Court of a state has full and final power to determine the constitutionality of a state statute, procedure, or course of conduct with regard to the state constitution, and this is true even where the state and federal constitutions contain similar or identical provisions. Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Jankovich v. Indiana Toll Road Commission, 379 U.S. 487, 85 S.Ct. 493, 13 L.Ed.2d 439 (1965). Thus, although state courts cannot interpret their state constitution so as to restrict the protections afforded by the federal constitution, as interpreted by the United States Supreme Court, they may expand protections on the basis of a textually identical state constitutional provision.
If this were not true the frictions of federalism would be fierce and frustrating and state supreme courts would be reduced to mere conduits through which federal edicts would flow. 584 S.W.2d at 760
In North v. Russell, five members
The differences between North v. Russell and the case at bar are glaring. There the defendant was an adult; here we deal with a minor. There the defendant was sentenced to 30 days in jail, fined $150.00 and stripped of his driver’s license; here we are faced with confinements up to seven and eight years. There the offense was a misdemeanor; here it was a felony.
Other differences become apparent as the opinion progresses. The Court notes that “there is a wide gap between the functions of a judge of a court of general jurisdiction, dealing with complex litigation, and the functions of a local police court judge trying a typical ‘drunk’ . . ..” 427 U.S. at 334, 96- S.Ct. at 2712, 49 L.Ed.2d at 539. Here, there is no gap between the functions of a juvenile judge in dealing with a child charged with burglary and those of a criminal court trying an adult on the same offense. Juvenile delinquency hearings literally bristle with tantalizing and technical questions of constitutional and statutory law.
The whole thrust of the Court’s reasoning seems to be that “a defendant in Kentucky facing a criminal sentence is 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.” 427 U.S. at 334, 96 S.Ct. at 2712, 49 L.Ed.2d at 539.
This is true under Kentucky law;
The de novo remedy does not lessen the deprivation. In Ward v. Monroeville, 409 U.S. 57, 34 L.Ed.2d 267, 93 S.Ct. 80 (1972), the Court declared:
the State’s trial court procedure [cannot] be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance. 409 U.S. at 61-62, 93 S.Ct. at 84, 34 L.Ed.2d at 271-72
The Court was speaking of the “the need for independent, neutral, and detached judgment,” but as Mr. Justice Stewart pointed out in dissent in North v. Russell, “surely there can be no meaningful constitutional difference between a trial that is fundamentally unfair because of the judge’s possible bias, and one that is fundamentally unfair because of the judge’s ignorance of the law.” 427 U.S. at 345, 96 S.Ct. at 2717, 49 L.Ed.2d at 545.
We cannot countenance and classify as constitutional any procedure whereby it is necessary that a citizen stand two trials in order to get one fair trial.
As Mr. Justice Stevens, who did not participate in North v. Russell, points out in Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976), and as every trial lawyer will attest:
A second trial of the same case is never the same as the first. Lawyers and witnesses are stale; opportunities for impeachment that may have little or much actual significance are present in the second trial that were not present in .the first; a witness may be available at one time but not the other; the tactics on cross-examination, or on the presentation of evidence, in the first trial will be influenced by judgment of what may happen at the second; the strategy of a nonjury trial may be different than in a proceeding before a jury. Clearly, if a defendant has participated in a full first-tier nonju-ry trial, his jury trial in the second tier is significantly different from the normal jury trial. 427 U.S. at 635-636, 96 S.Ct. at 2790, 49 L.Ed.2d at 744
To every trial lawyer a second trial of the same case is about as palatable as drinking
The second thrust of the Court’s opinion in North v. Russell is that “a defendant can have an initial trial before a lawyer-judge by pleading guilty in the police court, thus bypassing that court and seeking the de novo trial . . ..” 427 U.S. at 337, 96 S.Ct. at 2713, 49 L.Ed.2d at 540.
Yes, in the case of a Kentucky misde-meanant (and one in Tennessee) but no, in the case of a juvenile offender. Section 37-229(b), T.C.A. And, the sentence goes immediately in effect, unless and until the circuit court acts on appeal.
The Court, in North v. Russell, also pointed out the insignificance of the sentence, speaking in terms of the disposition of “minor” cases. Again, we here deal with a felony and with loss of liberty for from seven to eight years. We have already pointed out the sentencing disparity. See Section IV, supra.
Kentucky law allows a misdemeanant 30 days within which to perfect an appeal. Ky.R.Crim.P. 12.04. A Tennessee juvenile must appeal in five (5) days, excluding only Sundays. Section 37-258(a), T.C.A.
We point this out only as a distinction between the adult rights of North and the juvenile rights in the case at bar. Here, two juvenile offenders, one a borderline defective and the other little better off, tried before a lay judge, without counsel (the lower court found a knowledgeable and voluntary waiver) and advised only by his father and a mentally defective mother, are charged with the knowledge that they can appeal in five days and get a de novo trial. This mocks constitutional due process.
We do not view North v. Russell as being applicable to the case at bar.
VII.
Conclusion
We hold, in the context of a juvenile commitment, that “the law of the land” provision of Article I, Section 8 of the Constitution 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 a licensed lawyer to hold office or to exercise other duties and enjoy other jurisdictions.
Chapter 934, Public Acts of 1978, passed by the Legislature to implement the Constitutional Convention of 1978,.provided inter alia, that the county executive would exercise all of the judicial authority formerly exercised by the county judge. This would include serving as juvenile judge in all counties except where such judges are “especially provided by statute.” Section 37— 202(8), T.C.A. In Waters v. Ogle, 583 S.W.2d 756 (Tenn.1979), we declared invalid so much of Chapter 934, Public Acts of 1978, as clothed the county judge with judicial powers, with the result that all counties in Tennessee having a county executive, but not having a special, statutory juvenile court, were placed in the position of not having a legally competent juvenile court. The Legislature is now in session. It must necessarily address the problems created by the decision in Waters v. Ogle and by this decision. In the interim, Tennessee has sufficient lawyer-judges to meet the temporary demands of the juvenile court system. Additionally the remedies provided by Section 17-225, T.C.A., are available.
This cause is remanded to the juvenile court at Centerville for an adjudicatory hearing before a legally competent judge.
Reversed and remanded.
. Other issues are presented; however, in view of the disposition we make they are pretermit-ted.
. See Freeman v. Felts, 208 Tenn. 201, 344 S.W.2d 550 (1961). The records of the office of Coordinator of Elections indicate 27 counties.
. Chapter 85, Public Acts of 1965, amended Section 17-119 so as to exempt county judges except those exercising certain jurisdiction. Section 17-119, along with Article VI, Sections 3 & 4, constitute the general law of this state with respect to the qualification of judges.
. Tennessee’s juvenile court system was established by Chapter 600, Public Acts of 1970, and is contained in Title 37, Chapter 2, T.C.A.; Sections 37-201, et seq. The hearing in juvenile court was conducted on April 13, 1976. We apply the law as it existed as of that date.
. The record contains no indication that minutes were kept.
. For similar provisions of Tennessee’s Juvenile Court law, see Sections 37-233, 37-224, 37-251, and 37-252. T.C.A.
. Stewart and Marshall dissented; Brenner concurred in the results and Stevens did not participate.
. See Ky.Rev.Stat.Ann. Sec. 23.032 (1971), Ky.R.Crim.P. 12.06.