On October 12, 1998, the Tennessee Supreme Court issued an opinion in the case of City of White House v. Whitley (1998 WL 704105 (Tenn.)). Although this case dealt specifically with municipal judges, this decision is significant to any county having a general sessions judge that is not a licensed attorney. The court ruled that when a person is charged with a crime that is punishable by incarceration, he or she is constitutionally entitled to have a judge who is an attorney preside at the trial. A non-attorney judge can only hear the case if the defendant waives his or her right to a trial before a judge who is an attorney.
The court stated that this ruling does not change the qualifications for general sessions or municipal judges. Non-attorney general sessions judges and municipal judges can still hear civil cases and minor offenses (such as motor vehicle offenses) if the offense could not result in incarceration. If your county has a general sessions judge that is not a licensed attorney, you should initiate discussions with all local judges and the district attorney’s office to determine how to handle the caseload of criminal trials for your county. Even if your sessions judges are attorneys, your county may experience an increase in its criminal caseload if there are non-attorney municipal judges in the county that were hearing criminal cases prior to this decision.
The Tennessee Code provides a number of methods for interchange of judges or selecting special judges when a general sessions judge has to be absent from court. While none of these statutes exactly addresses the problem raised by the Whitley decision, we believe one of the following methods of interchange or appointment could be used to find a replacement judge or attorney as needed.
T.C.A § 16-15-209 - provides for four alternative means of selecting a special judge when the general sessions judge has to be absent from holding court
T.C.A. § 17-2-109 - allows the Supreme Court to assign retired or regular chancellors or judges to help clear backlogs in caseloads or prevent them if delays are imminent
T.C.A. § 17-2-208 - allows judges of general sessions and juvenile courts to interchange whenever it is necessary or mutually convenient
If no suitable judge or attorney can be found to hear the cases in general sessions court, all criminal cases may have to be heard before the circuit court. The limitation of the jurisdiction of non-attorney general sessions judges does not affect their salary.