August 13, 1998
The Honorable Brenda J. Waggoner
Judge, Court of Judiciary
City/County Building M-70
400 Main Avenue
Knoxville, TN 37902
Dear Judge Waggoner
Please have the Judicial Ethics Committee make a ruling which tells us
(all Juvenile Court Judges), if it is permissible for employees of judges to
run probation and other programs for juveniles whom they have placed on any
type probation. It is my belief that many judges in many of our counties do,
that they have done it for years, and that it is improper under both the
State Constitution and Rules of Ethics. I make no complaint against any
particular judge and wish no judge to be sanctioned for past activities.
The constitutional issue may seem to be only a matter of law and not
concerned with ethics. However, our oath requires us to support the
constitution. If we do things we know the constitution does not permit, we
violate our oaths. The Constitution, in Art II, Sec. 2. Limitation of
Powers, prohibits judges from running programs with the words:
"No person belonging to one of these departments shall exercise
any of the powers properly belonging to either of the others, except in
the cases herein directed or permitted."
The State probation department is run by the executive branch of our
government just as the Constitution requires. It would wrong for a state
probation program to be run by a judge. It is just as wrong for a county
probation program to be run by a judge, to include those for juveniles. What
is constitutionally correct for the state, is constitutionally correct for
the counties.
Ethically, it is wrong for judges to supervise probation officers because
probation officers are required to make investigations and, as a result, must
often offer the resulting evidence in court in adversary situations. If the
probation officer testifying in a particular case is an employee of the
judge, it seems clear the judge should not hear the case.
The specific ethical rules being violated are:
a. CANON 2 which requires judges to avoid the appearance of impropriety
and to promote public confidence in impartiality. If a key witness is an
employee of the judge public confidence in impartiality is not promoted.
b.. CANON 4 which prohibits judges from accepting leadership in
organizations having frequent adversary proceedings in his court. The rules
which apply to a judge’s association with business organizations should apply
to his relationship with a probation department. If the judge supervises the
organization of probation officers, he would have the conflicts the rule
seeks to avoid.
c. CANON 3 which says the judicial duties of a judge must take
precedence over all the judge’s other duties. When a judge gets so busy
running programs, he becomes unable to hear all his cases without help from
referees, he has let the administration of programs take precedence over his
judicial duties.
d. CANON 4 which also prohibits a judge from allowing extra-judicial
duties to interfere with his judicial duties.
Powers granted to General Sessions Court judges are found in TCA 16-1-102
and TCA 16-15-401. Powers granted to Juvenile Court judges are found in TCA
37-1-103 and TCA 37-1-104. All these sections deal with hearing
controversies in court. They grant no power to run programs.
If one strains enough, some law can be found to permit judges to run
programs. TCA 37-1-105 gives judges the authority to appoint probation
officers but NOT the authority to supervise them. TCA 37-1-162 gives the
judge the authority to appoint and supervise a Youth Service Officer (YSO) if
funds are received from the State for one. TCA 37-1-106(b)(7) gives the YSO
the same functions as a probation officer. It does NOT follow that more than
one YSO could be appointed as a means of authorizing a judge to supervise the
county probation department. Some judges may look in TCA 37-1-116 for
authority to run programs. It requires the placement of detention facilities
"under the direction or supervision of a court or other pubic authorities."
Similar Language is used in various other places. While the law may permit
judges to run programs, it does not require it. Even if the law did require
it, it would still be improper under both the Constitution and the Rule of
Ethics.
TCA 37-1-105 makes it clear probation officers do not have the powers of
law enforcement officers. It also prohibits their conducting accusatory
proceedings, clearly a judicial function, and a warning to probation officers
to be mindful of the separation of powers doctrine.
The idea of having judges run programs was probably born many years ago
with the phrase "in loco parentis." But the many years of practice does not
make it right. It was not made proper because County Commissions in many
counties were reluctant to appropriate money for probation programs for
juveniles. Nor was the problem cured because needed information concerning
activities of juvenile courts was not being sent to Nashville by clerks of
the courts.
Counties should have programs for "at risk" juveniles. The programs
should be designed to help juveniles reach adulthood as useful citizens
rather than criminals. They should provide an alternative to state custody
for many juveniles where the price in many ways for both the taxpayers and
the juveniles.
My solution is to have the County Commission of each county designate a
separate organization (NOT supervised by judges) to run the county probation
programs under the guidance of TCA 5-6-106(c) This would make county run
probation programs for juveniles very much like the state run probation
programs for adults as provided for in titles 40 and 41 in the Tennessee Code.
Your ruling that judges should not run programs, WOULD NOT mean immediate
termination all the current county programs. Employees could continue doing
what they now do until the county commissions set up the boards specified in
TCA 5-6-106. The state laws which, as some think, permit judges to exercise
power belonging in the executive branch should be amended.
Very truly yours,
Andrew F. Bennett, Jr.
Judge
CC: C. Van Deacon, Judge Div I
Larry Wright, Candidate for Judge, Div I
County Executive (current and candidates)
Each County Commissioner
District Attorney General
Director of Juvenile Div.
State Legislators (current)
