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Is Clarksville a monarchy? Local Judge takes charter revision to task on balance of power

cityhallWith the revised Clarksville  City Charter heading to the state legislature for approval, Clarksville City Judge Charles Smith spoke out  about what he views as “one-sided” analysis of proposed charter revisions by the City Council and the appearance that, in his view, “no meaningful change will occur” from the revisions as written.

In a letter submitted to Senator Tim Barnes and and Representatives Joe Pitts, Phillip Johnson and Curtis Johnson regarding action on the proposed charter revisions, Judge Smith voiced appreciation for their input and concerns regarding the city charter but suggested that their input would not be reflected in charter revisions.

Judge Smith  made an e-mail copy of his letter to Clarksville’s state legislators  available  to media and local civic and human rights organizations. In this missive,  Judge Smith acknowledges the work performed by the City Council but cites limitations to its ability and resources to adequately review information and issues on the Council table:

“Our City Council works hard, attends many meetings, and functions in a fashion that, in my opinion, is totally orchestrated and controlled by the executive branch of government.  The bulk of information utilized by the City Council in decision-making is prepared, edited, and shaped by the executive branch of government.  The current structure does not allow the City Council to have staff or resources to independently examine issues, obtain independent legal opinions or independent financial analysis.”

Judge Smith also criticized the city’s administrative structure, noting in his communique  that:

The Clarksville government structure provides no balance of powers, no checks and balances, and no separation of powers.  The executive branch (Mayor) controls the legislative branch by serving as a voting member, presiding over meetings of the legislative branch, and appointing and removing, at will, council committee members and chairpersons.  The judicial branch is equally under the control of the executive branch.  Except for the brief moment of rendering a decision in City Court, the executive branch controls all aspects of the docket, court personnel, and the enforcement or non-enforcement of judgments of the City Court.

Clarksville is the state’s fifth largest city, but, Judge Smith noted,  unlike the state’s top four municipalities, “the Clarksville City government structure is much more similar to cities or towns with a population of 1,000, rather than an expanding municipality with a population in excess of 100,000.” He added that no major city in Tennessee has its mayor as a seated member of the City Council, and summed the state of the city as “a monarchy.”

The Letter

Here is the complete text of Judge Smith’s letter:

Dear Senator Tim Barnes, Representative Curtis Johnson, Representative Phillip Johnson, and Representative Joe Pitts:

judge-smithThank you for your suggestions concerning the revised Clarksville City Charter.  The City Council’s analysis of the concerns you raised was, in my opinion, “one-sided,” much like the Charter revision process.  It appears that no meaningful change will occur.

I realize that municipalities in Tennessee exist at the pleasure of the State in their numerous and frequently unusual forms.  Unfortunately, the Clarksville City government structure is much more similar to cities or towns with a population of 1,000, rather than an expanding municipality with a population in excess of 100,000 (e.g. no mayor of TN Big 4 cities also sits as a council member).  The Clarksville government structure provides no balance of powers, no checks and balances, and no separation of powers.  The executive branch (Mayor) controls the legislative branch by serving as a voting member, presiding over meetings of the legislative branch, and appointing and removing, at will, council committee members and chairpersons.  The judicial branch is equally under the control of the executive branch.  Except for the brief moment of rendering a decision in City Court, the executive branch controls all aspects of the docket, court personnel, and the enforcement or non-enforcement of judgments of the City Court.

gavel-and-scales-of-justiceThe revised Charter, in my opinion, conflicts with State law in several areas as it relates to the judiciary.  T.C.A. § 16-18-310(b) provides, in part, “the clerk of the municipal court shall maintain an accurate and detailed record of court proceedings… .”  T.C.A. § 55-10-306(a) provides, in part, “that every magistrate or judge of the court shall keep or cause to be kept a record of every traffic complaint, warrant, traffic citation… .”  The proposed Charter, Article V, section 1(f), provides, “the clerk of the City Court, under supervision of the Finance Department, shall keep or cause to be kept City Court dockets… .”  The proposed Charter assigns judicial statutory responsibility to the Finance Department.  T.C.A. § 16-1-102 provides, in part, that “every court has the power to compel obedience to its judgments, orders, and process… .” The proposed Charter, Article V, section 1(b), states, in part, that “the City Judge shall have power… to enforce the collection of all such fines and costs and, in default of payment thereof, to pursue collection of the same through the City Finance Department and City Attorney.”  The proposed Charter seeks to dictate, limit, or proscribe the method the Court would utilize to “compel obedience to judgments.”  The proposed Charter, Article V, section 1(d), ends with the language “the City Judge, with approval of the Mayor, may remit with or without conditions, fines and costs imposed for the violation of any ordinance or Charter provisions of the City or any part of the same.”  This language, and language in part (e) which states that “the Judge to certify to the Finance Department for collection of all fines,” is gibberish. The elected Judge does not require approval of the Mayor” to discharge judicial responsibilities, and further the Judge does not handle any funds and, unfortunately, all personnel who collect funds, establish dockets, and discharge any other functions related to the judiciary are supervised and accountable exclusively to the executive branch of government.  The Judge cannot “remit” or “certify” anything related to funds.

These are a few obvious conflicts the proposed Charter creates concerning State law and common sense as it relates to the judiciary.  The Charter Revision Committee did not ask for my input, the input of the former City Court Judge, or the input of anyone with judicial experience as they made Charter revisions.  The current Charter is admittedly obsolete and outdated in many areas; however, the proposed Charter does not address fundamental Charter shortcomings.

Without independent branches of government and separation of powers, there are no checks and balances, and the executive branch in Clarksville simply does as it chooses without regard to the proposed or current Charter, statutory law, or Constitutional law.  Our City Council works hard, attends many meetings, and functions in a fashion that, in my opinion, is totally orchestrated and controlled by the executive branch of government.  The bulk of information utilized by the City Council in decision-making is prepared, edited, and shaped by the executive branch of government.  The current structure does not allow the City Council to have staff or resources to independently examine issues, obtain independent legal opinions or independent financial analysis.

The proposed Charter further erodes the concept of independent branches of government and balance of power.  Unfortunately, there does not appear to be a method of accountability for the executive branch, given the total control exercised over the legislative branch of government.  The Mayor presides over the legislative branch, introduces legislation, and votes on any matters he chooses, which essentially creates a monarchy. Unfortunately, I do not see avenues for bringing about positive change unless you act.  Keep asking the hard questions.  Clarksville deserves it.

Thanks for your consideration.

Judge Charles W. Smith

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5 COMMENTS

  1. The points made in this critique show how ill focused the council’s charter revision committee was. The document they crafted has given no consideration to providing the citizens of Clarksville with competent, demonstrative democratic governance.

    This document ignores the concept of the separation of powers, accountability to the governed, and control by the governed. For all their conferencing, the end product is not worthy of the effort, nor the support of the people of this great community. As analysis has revealed, we were not well served and our desire and hopes for improved, enhanced people-powered governance still eludes us. It is no accident that we, the electorate, have not been allowed to record our vote of approval or rejection.

  2. The current situation within our city government, as it pertains to the revision and rejection of the City Charter, is not so much about political power play as it is about the apparent lack of understanding about our form of city government, the traditional concept of separation of powers, and of checks and balances. And most importantly, it is the lack of understanding our city charter and it’s weakness in that it does not provide a form of government based upon a separation of powers by a system of checks and balances. It instead instills the power of both the Executive Branch and of Legislative Branch in one person, that of the Mayor.

    I have had numerous discussions about the subject and have been disheartened to discover that many do not understand this fundamental concept, this “separations of powers” and “checks and balances”, that helped lay the foundation our National and State Constitutions. Many have stated that it was the personality of the Mayor that caused such strife and yet others believe it was because we have a Mayor-Council form of government with a strong-mayor system. And indeed, our charter is based upon this system, but does it mean the executive has the right to do as he alone deems fit for the city?

    The city of Clarksville is setup as a Mayor-Council form of government, which is the oldest form of city government, and is similar to that of the state and federal system. As such: the branches of government being an elected Mayor as the Executive and an elected Council as the Legislative body with a supposedly separation between the two branches. The strong-mayor system provides the Mayor with the ability to veto measures that the council might pass, appoint high ranking members of the city’s bureaucracy (standing approval from the Council), prepares the budget (pending Council approval), and proposes legislation to the council and many of his actions may not require council approval. In short, he conducts the daily affairs of the city and enforces the laws passed by the Council. This, in and of itself, is not the problem, rather it is the Executive’s other powers, as provided by the charter, that is a matter of contention.

    The Mayor is not only the Executive of the city government (Part 1, Art. IV, Sec. 2), but he is also the presiding official and member of the Legislative Branch, the City Council, with legislative (law making) powers (Part 1, Art. II, sec. 10, 11, 20; Art. I, Sec.2 (b)). It is at this point that the city charter, our “Constitution”, violates the constitutional principles of “Separation of Powers” by a system of “checks and balances”.

    The French philosopher Montesquieu wrote in The Spirit of the Law’s that when all power is concentrated in any single government body (or person), tyranny is usually the result. Only when the government is divided into separate bodies can a people be assured that their government is responsible, limited and free. Our founding fathers understood this and incorporated it into our current form of national government. So why then is it, this concentration of power, permitted in our charter? Is not the Council the Legislative Branch (Art. II, Sec. 3, Sec.20) of city and thus should not the Executive should be separate from the Legislative?

    James Madison wrote that “….the accumulation of all powers, legislative, executive and judiciary in the same hands…may justly be pronounced the very definition of tyranny” (The Federalist no. 47) and that “….the great security against a gradual concentration of the control powers in the same department consists in giving to those who administer each department the necessary constitutional means…to resist encroachment on the others….” (The Federalist no. 51). Our charter has not provided for this “great security”, indeed it has provided for and enforced “a gradual concentration” of power.

    The City Charter provides the Mayor, as the Executive Branch, the executive privilege of the veto and the privileges of Legislative by permitting him to vote on all matters presented to the council (Art II, Sec 10; Art IV, Sec. 2) even if a tie breaking vote is not mandated. In theory, and principle, he can veto any legislation passed and than vote on the Council to uphold his own veto or even that of his own proposed legislation. The checks and balances of a free and just government are thereby negated. There is no true separation of powers, but the feared “gradual concentration” of power into the hands of one body or person.

    In conjunction with this combined powers of governmental branches, the Executive has the right to nominate department heads (which is his prerogative), but may also select who sits upon the different legislative committees (Art. IV, Sec. 2(1)) as he deems fit. These committees are responsible to the Council to investigate research, perform oversight responsibilities, and recommend courses of actions that should be taken by the Legislative, not by the Executive. They do not set policy/law, only the Council as a whole is permitted this action. The Legislative committees do not take away executive power from the Executive. These committees are an instrument for the Council body so that they may perform their duties in an informed responsible fashion and as so, the member and the chairpersons of these committees are to be selected from and by the Council, not by the Executive. In the past years we have seen the Executive intimidate these committees by not allowing them to conduct inquiries into the proper operations of the city, contrary to their responsibilities as stated in the charter (Art. II, Sec. 15).

    And so it is that we have “the accumulation of all powers” into one branch of government. This is the weakness of our city “Constitution”, the social contact between the governed and the government. It does not matter who is the Executive, be he over-ambitious with delusions of grandeur or a person of high morals and values, they are both human with human weakness, for without the proper checks in place, the current city government will continue to be unlimited and irresponsible with poor leadership.

    And what is the cure for this ailment that favors quasi-tyrannical powers? The debaters of the national constitution knew the answer to this query, “….that it is an established principle in America…that the legislative and executive powers ought to be kept forever separate and distinct from each other….” (Pennsylvania Herald (Phil.), Oct. 17, 1787). The charter must be revisited again, changed to reflect the basic principles of good government and executed so that there is a true separation of governmental powers supported by checks and balances.

    If not, then we, The People, can only hope that we will elect wise and honorable leaders who will respect our national heritage of a just and free government and not that of Machiavellian politics or Orwellian newspeak (double talk). But even then, we may find a wolf in sheep’s clothing.

    Mike Sanford

  3. Actually we have other options, take a look at Article I section 1 & 2 of the Tennessee Constitution…

    Article I § 1. Powers of people

    That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

    Article I § 2. Doctrine of non-resistance

    That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

    While the state has not established a process to exercise that right it is still a constitutional right and on request the system is required to allow the citizens to exercise it.

    If not then Americans know how to deal with monarchies…

  4. I would like to start by saying I did not vote for our present Mayor, but I think on the hole he and the city council have done a good job for the city and the people over all.

    That being said maybe we need to make some changes in the charter that will help the city as it grows. we are the 5th largest city in the state and the 9th fastest growing in the country.

    Some idea’s

    First: in 2010 a federal census will be done.let us use that to realign the city wards, and add more I do not know how long we have had 12, I know at one time some were at lage and this was changed by a city wide vote and that was a good move. The city has grown and the council should grow to the wards would be smaller and give a better representation of the people.

    Second: Remove the Mayor from the council. Nomater the size of the body the members of the council should Elect a vice Mayor as they do now and that council person should be the head of the council

    If you look at most major city goverments this is how they are set up. The four biggest cities in are own state have this set up it wors for them it will work for us.

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