Bankston v. State

• Decision Date: 25 September 1995
• Citation: 908 S.W.2d 194
• Parties: Howard C. BANKSTON, Appellee, v. STATE of Tennessee, Appellant.
• Court: Tennessee Supreme Court

Page 194

908 S.W.2d 194

Howard C. BANKSTON, Appellee, v. STATE of Tennessee, Appellant.

Supreme Court of Tennessee,

at Knoxville.

Sept. 25, 1995.

Gregory D. Smith, Clarksville, for appellee.

Charles W. Burson, Attorney General & Reporter, Merrilyn Feirman, Assistant Attorney General, Nashville, for appellant.

OPINION

DROWOTA, Justice.

In this case the State of Tennessee appeals from the Court of Criminal Appeals' reversal of the trial court's order dismissing the defendant's petition for post-conviction relief. The single issue presented for our review is as follows: is a municipal judge exercising concurrent jurisdiction over state criminal offenses prior to this Court's decision in Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn.1992) a judge de facto whose judgments are valid and binding? For the reasons that follow, we reverse the judgment of the Court of Criminal Appeals.

FACTS AND PROCEDURAL HISTORY

The facts of this case are not disputed. The defendant, Howard Bankston, was convicted three times of driving under the influence (DUI) during the period from 1980 to 1983--twice in the Hamilton County Criminal Court and once in the Chattanooga City Court. Because Tenn.Code Ann. § 55-10-603(2)(A) provides that any person convicted three times of DUI within a period of three years is to be designated an "habitual offender," Bankston was so adjudicated in June 1983. In accordance with Tenn.Code Ann. § 55-10-613, the trial court ordered that his operator's license be revoked.

In June 1987 Bankston pleaded guilty to several counts of driving on a revoked license in violation of Tenn.Code Ann. § 55-10-616. He received a twelve year sentence on these pleas. In March 1990 Bankston filed a petition for post-conviction relief, alleging that he was deprived of the effective assistance of counsel during the proceedings that produced the underlying DUI convictions. The trial court dismissed the petition, however, finding that it was not supported by the evidence. The Court of Criminal Appeals affirmed the judgment, and this Court denied Bankston's application for permission to appeal.

Bankston filed a second post-conviction petition in March 1992; and after the trial court appointed counsel to represent Bankston, this petition was amended in November 1992. This petition challenged the underlying DUI convictions on due process grounds, specifically alleging that the guilty pleas in those cases had been entered involuntarily and without full knowledge of the consequences of the pleas. The trial court dismissed the petition, holding that it was barred by the three year statute of limitations applicable to post-conviction actions. Tenn.Code Ann. § 40-30-102. Bankston appealed from this ruling to the Court of Criminal Appeals, arguing for the first time that since one of his DUI convictions had been rendered by the Chattanooga City Court, our decision in Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn.1992) required that the conviction be set aside. Bankston further argued that because one of the underlying DUI convictions was invalid, both his subsequent adjudication as a habitual offender and the convictions for violating the habitual offender status were also invalid and should be set aside.

The Court of Criminal Appeals agreed and reversed the trial court's judgment. In its analysis, the Court first cited Town of South Carthage for the proposition that the principle of the separation of powers prohibits municipal judges not elected in accordance with Article VI, § 4 of the Tennessee Constitution from exercising concurrent jurisdiction over state criminal offenses. The Court then reasoned that because Town of South Carthage had not been released until September 1992, the defendant could not have challenged the constitutionality of his habitual offender status in his first post-conviction petition; and it concluded that our decision in Burford v. State, 845 S.W.2d 204 (Tenn.1992) required that the defendant have the opportunity to raise the claim. Since it was unable to determine from the record whether the Chattanooga City Court had been elected in accordance with the dictates of the Tennessee Constitution, the Court remanded the case to the trial court for an evidentiary hearing on the issue.

We granted the State's application for permission to appeal to clarify the applicability of our Town of South Carthage decision.

ANALYSIS

Our analysis must begin with Town of South Carthage. In that case, the defendant was convicted of DUI in the municipal court of the Town of South Carthage (Town), Tennessee. He appealed from this judgment to the Smith County Circuit Court, arguing that the municipal court had no jurisdiction to try cases involving an exercise of state criminal jurisdiction. That court agreed and vacated the defendant's conviction. The Town then appealed to this Court.

We affirmed the trial court's judgment. In our analysis, we first noted that the Town had enacted an ordinance creating the office of municipal judge and that this judge was to be appointed by the Board of Mayor and Aldermen. We also noted that this ordinance conferred upon this judge all the judicial powers of the "Mayor or City recorder"; and that this provision granted the municipal judge some state criminal jurisdiction because of Tenn.Code Ann. 6-2-403, ¹ which provided in pertinent part that "the recorder or other proper designated officer shall be vested with concurrent jurisdiction with judges of the court of general sessions, in all cases of violation of the criminal laws of the state." We then reasoned, citing State ex rel. Haywood v. Superintendent, Davidson County Workhouse, 195 Tenn. 265, 259 S.W.2d 159 (1953), that the municipal ordinance and § 6-2-403 conflicted with Art. VI, § 4 of the Tennessee Constitution, which provides that "The Judges of the ... inferior courts shall be elected by the qualified voters of the district or circuit to which they are assigned ..." We concluded that this conflict potentially threatened the independence of the judiciary, see Summers v. Thompson, 764 S.W.2d 182, 196 (Tenn.1988) (Drowota, J. concurring), and therefore violated the fundamental constitutional principle of the separation of powers. Thus, we affirmed the trial court's judgment.

Turning to the arguments in this case, the State asserts that the Court of Criminal Appeals erred because Town of South Carthage does not automatically nullify every conviction rendered by a municipal judge not elected in accordance with the Tennessee Constitution before that decision was released. Rather, the State argues that a conviction should only be set aside if the defendant can make a showing that the judge's unconstitutional status actually affected the integrity of the proceedings leading to the convictions. The State supports this assertion by arguing that Tennessee law has long recognized that a judge acting under color of law and with the acquiescence of the parties and the public is a de facto judge whose rulings bind all interested parties--notwithstanding that such judge's authority may later prove to be illegitimate or even unconstitutional. The State cites several cases in which the de facto doctrine has been recognized and applied by this Court, including Waters v. State ex rel. Schmutzer, 583 S.W.2d 756, 761 (Tenn.1979); Country Clubs, Inc. v. City of Knoxville, 217 Tenn. 104, 395 S.W.2d 789 (1965); Smith v. Landsden, 212 Tenn. 543, 370 S.W.2d 557 (1963); Martin v. Dowling, 204 Tenn. 34, 315 S.W.2d 397 (1958); and Giles v. State, 191 Tenn. 538, 235 S.W.2d 24 (1950).

The defendant responds that Town of South Carthage should be construed to automatically void all convictions rendered by municipal judges not elected in accordance with the state constitution, and that these convictions can be attacked in collateral proceedings. He cites as support for his argument State ex rel. Newsom v. Roberts, 881 S.W.2d 678 (Tenn.Crim.App.1993), and the case relied upon in Newsom, Haywood v. Superintendent, supra.

The difference between judges de jure and de facto and the general rule concerning the validity of the acts of a judge de facto can be summarized as follows:

A judge de jure is one who is exercising the office of a judge as a matter of right. In order to become a judge de jure, one must satisfy three requirements: he must possess the legal qualifications for the judicial office in question; he must be lawfully chosen to such office; and he must have qualified himself to perform the duties of such office according to the mode prescribed by law.

A judge de facto is one acting with the color of right and who is regarded as, and has the reputation of, exercising the judicial function he assumes. He differs, on the one hand, from a mere usurper of an office who undertakes to act without any color of right: and on the other hand, from an officer de jure who is in all respects legally appointed and qualified to exercise the office ...

48A C.J.S. Judges § 2 (1981).

Because the doctrine of de facto officers extends to judges, a judge de facto is a judge de jure as to all parties except the state, and, ... his official acts, before he is ousted from office, are binding on third parties and the public.

Id. at § 11.

Initially, the State is correct that Tennessee has long recognized the doctrine of de facto officers and judges; it was first introduced into Tennessee jurisprudence in 1859, see Blackburn v. State, 40 Tenn. 690 (1859) and C.D. Venable & Co. v. Curd, 39 Tenn. 582 (1859), and has been recognized as recently as 1979. See Waters, supra. The policy reasons for treating the acts of a de facto judge as valid were ably enunciated over 100 years ago by Justice Field of the United States Supreme Court:

The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy or necessity, for the protection of the...