Marshall County Commissioners want a court ruling on whether General Sessions Court Judge Steve Bowden must choose between his seat on the bench and his private law practice.
When the 2010 census was certified, a state law mandated the part-time position become a full-time job because the county population grew enough to justify more work and pay. Commissioners have asked Circuit Court Judge Lee Russell to rule that Bowden may remain a part-time judge until his term ends in 2014.
Commissioners, represented by County Attorney Bill Haywood, say they didn't budget more money for the judge's pay and, besides, Bowden is in agreement to remain part-time and receive no pay hike from the county.
His annual salary is $98,762.51, according to a spreadsheet released by the Administrative Office of the Courts. On April 1, it was to have increased to $124,426.61, and as of July 1, it was to be $126,417.44.
As a part-time judge, Bowden is allowed to maintain a law practice, serving clients in court where there's no conflict of interest.
One view of the state's position, as it's become a part of the case between the commissioners and the sessions judge, is that when Bowden ran for re-election in 2006, he knew, or should have known that the position could become a full-time job if the 2010 census caused Marshall County to change from a Class 4 county to a Class 3 county as required by state law.
Four months ago, Bowden spoke about a March 25 letter to judges from the Administrative Office of the Courts for Tennessee. Directed by Elizabeth Sykes, the AOC is comparable to the Circuit Court Clerk's office. Sykes issued a spreadsheet that shows that because of the census Marshall County went from a Class 4 county to a Class 3 county as required by state law.
"People voted for me as a part-time judge and I don't think they can change that," Bowden said in May. "It's my opinion that I ran for the job as a part-time position -- as a part-time judge -- and that they can't change that in the middle of the term."
A different set of circumstances arose approximately 30 years ago when state lawmakers wanted to impose "concurrent jurisdiction" to have the same territory served by civil and criminal circuit court judges and chancellors who preside over a court of equity. An argument then against concurrent jurisdiction was that power comes from the people as expressed by them in voting booths.
Judge Russell, a resident of Bedford County, is presiding over the legal sparring that includes State Attorney General Robert Cooper and, among others on his staff, Joe Shirley, senior counsel at the AG's office which is representing the AOC.
"The state's made good points," Haywood said Wednesday. "It could go either way."
The Attorney General's office has asked Russell to dismiss the case.
"Steve's biggest argument is that the state [the AG's office] does not have standing to step in on this case unless there's a constitutional question," Haywood said.
Speaking for county commissioners, Haywood explained, "We're not questioning the constitutionality" of the legal issue to be resolved.
"We're questioning that facts as they exist under Judge Bowden's situation," Haywood said.
"The law says 'A newly elected judge must opt to preside full-time or resign,' but he's not a newly-elected judge," Haywood said. "If I had run and been elected, I could understand..."
State leaders then might well expect someone who'd just been elected to the bench to make a decision, he said.
In fact, it's happened in this 17th Judicial District. Before he was elected as district attorney, Chuck Crawford was a sessions court judge presiding in Fayetteville for Lincoln County cases. He started an eight-year term as a part-time judge and relinquished his private practice to become a full-time judge hearing state cases.
However, Bowden has been on the bench 34 years, Haywood said.
Bowden is represented by Lewisburg-based attorney Bob Binkley who declined to use an opportunity to comment on the case when asked Wednesday afternoon.
A hearing on such issues was scheduled for today in Marshall County Circuit Court, but Haywood said it's been continued to an unscheduled date. Sharon Curtis-Flair, spokeswoman for the AG's office said Thursday morning that Shirley confirmed for her that it has been continued and no new date had been set.