People of City of Thornton v. Horan , 192 Colo. 144 ( 1976 )

MR. CHIEF JUSTICE PRINGLE

delivered the opinion of the Court.

Nancy McCoy and R. J. Wittenbrink were cited for violating the traffic laws of the City of Thornton in early 1975. They moved to dismiss the charges on the ground that Thornton’s city charter provides for judges who sit at the pleasure of the city council. The motions were denied. McCoy and Wittenbrink were subsequently found guilty by the municipal court and they appealed to the county court.

In the county court, they renewed their motion to dismiss. County Judge John Horan, the respondent here, dismissed the actions, holding: 1) that Colorado’s constitutional and statutory provisions do not allow home rule cities to provide for municipal judges without tenure, and 2) that a trial before a nontenured judge violates the due process and equal protection clauses of the Colorado and United States Constitutions.

We issued a rule to show cause why the judgment of the county court should not be set aside and the actions reinstated. We now make the rule absolute.

I.

Article XX, Section 6 of the Constitution of the State of Colorado authorizes a home rule city to enact charter provisions providing for the election or appointment of the officers of municipal courts. It specifically points out that matters dealing with the creation and staffing of municipal courts are local matters. The City of Thornton had adopted a home rule charter establishing municipal courts, with its judges appointed by the city council serving at the council’s pleasure. Respondent argues, however, that the Colorado legislature has statutorily required that municipal judges be tenured and that the matter is one of statewide concern. Under such circumstances, they contend, the statutes govern, rather than the charter. See Hardamon v. Municipal Court, 178 Colo. 271, 497 P.2d 1000 (1972); Bennion v. City and County of Denver, 180 Colo. 213, 504 P.2d 350 (1972); Davis v. City and County of Denver, 140 Colo. 30, 342 P.2d 674 (1959).

Section 13-10-105(1)(a), C.R.S. 1973, provides in relevant part;

“ Unless otherwise provided in the charter of a home rule city, the municipal court shall be presided over by a municipal judge who shall be appointed by the municipal governing body for a specified term of not less than two years. . . .” (emphasis added)

Read in context with Article XX, Section 6, it is clear that the statute’s unambiguous language offers home rule cities, such as Thornton, the opportunity to specify the terms under which a municipal judge holds his office. Thornton’s decision to appoint judges removable at the will of the city council is consistent with Section 105.

Moreover, it is apparent that the legislature itself recognized the power of home rule cities in this area given by the constitution when it enacted section 13-10-103, C.R.S. 1973. That section provides:

“Applicability. This article shall apply to and govern the operation of municipal courts in the cities and towns of this state. Except for the provisions relating to the method of salary payment for municipal judges, the right to a trial by jury for petty offenses provided for in Section 16-10-109, C.R.S. 1973, rules of procedure promulgated by the supreme court, and appellate procedure, this article may be superseded by charter or ordinance enacted by a home rule city." (emphasis added)

The fact that the term of office for municipal judges is not included in the exceptions clearly indicates the legislature’s recognition that the tenure decision lies in the hands of the citizens of home rule cities.

Finally, a recent action by the legislature has demonstrated that terms of office for judges that do not provide tenure are not against the public policy of the state. Section 31-4-208, C.R.S. 1973 (1975 Supp.), directs that municipal judges in statutory cities with a city manager form of government sit at the pleasure of the city council.

In the context of the discussion above, it is apparent Hardamon v. Municipal Court, supra, dealing with the right to jury trial in municipal courts, is inapposite.

II.

Respondent contends that even if Colorado’s statutory scheme does provide for nontenured judges, such a system is violative of the due process and equal protection guarantees of the Fourtheenth Amendment of the United States Constitution.

The respondent cites as authority for his position, Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). We think that case is not authority for the proposition asserted here. There the United States Supreme Court held that a mayor-judge could not be impartial in his judicial duties since the income of the village, for which he had executive responsibility, depended upon the amount of money collected by way of fines he imposed. Of course, where the mayor-judge’s personal income depends on the fines, due process is violated. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). Conversely, where a mayor-judge neither had the major executive function nor a personal pecuniary interest, there is no constitutional violation. Dugan v. Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928). In the present case, there is no hint that Thornton’s municipal judges have a direct financial interest as in Turney, nor do they act in any executive capacity as in Ward. The question then becomes whether a defendant has a Constitutional right to a trial before a tenured judge absent any evidence of bias.

The Supreme Court of the United States has had the occasion to comment on this question in Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). The Court held that a defendant was not deprived of due process when he was found guilty in the Superior Court for the District of Columbia before a judge without lifetime tenure even though federal district judges hearing criminal cases held lifetime tenure. Justice White compared that defendant to. citizens of the fifty states who are charged in state court with violations of state law. He concluded that “Neither has a federal constitutional right to be tried before judges with tenure and salary guarantees.” Palmore, supra, at 391. We find no violation of the due process clause in a trial before a nontenured judge.

Nor is respondent’s equal protection claim of any validity. This court has, in the past, examined provisions which treat certain municipalities differently and has found them not to be in violation of the Equal Protection Clause. Cf. Board of County Commissioners v. City and County of Denver, 150 Colo. 198, 372 P.2d 152 (1962), appeal dismissed, 372 U.S. 226, 83 S.Ct. 679, 9 L.Ed. 2d 714 (1963); Francis v. County Court in and for the City and County of Denver, 175 Colo. 308, 487 P.2d 375 (1971). The basic inquiry is whether the difference in treatment leads to arbitrary, irrational results. There is nothing before us in this case to show that a trial before a nontenured judge in and of itself is sufficient to taint the fairness of the trial, thereby denying due process or equal protection.

We are not unmindful of the amicus’ concern that public confidence may be undermined by the fact that the municipal judge serves at the pleasure of the appointing authority. We point out, however, as we have done before, that the Constitution of the United States does not, by its guarantee of the republican form of government, guarantee the doctrine of separation of powers to the states. See In Re Interrogatories Propounded By the Senate, 189 Colo. 1, 536 P.2d 308 (1975), and the rather lengthy discussion of this point. As we have also pointed out previously, all the power of government in this state flows from the people as required by the republican form of government and the people of this state and the people of Thornton have authorized the present system. So long as there is no evidence to reflect a violation of the due process clause of the Federal Constitution, we cannot substitute our philosophy for that of the people of this state and the citizenry of Thornton.

The rule is made absolute and the respondent is directed to reinstate the actions involved here.

MR. JUSTICE ERICKSON concurs in result.

MR. JUSTICE CARRIGAN dissents.