dissenting:
I respectfully dissent as to all portions of the majority opinion dealing with constitutional issues.
I have no quarrel with the majority opinion’s interpretation of the statutes and Municipal Home Rule provisions of the Colorado Constitution. However, the majority opinion does not adequately meet the fundamental constitutional issues raised by the respondent and by amicus curiae, the Colorado Municipal Judges Association.
Defendants in a Thornton Municipal Court prosecution claimed they were denied the fair and impartial tribunal essential to due process because the City, which is prosecuting them, has power to remove and replace the judge at its pleasure. They also claimed denial of equal protection because some municipal court judges are appointed for at least two-year terms, whereas others serve at the pleasure of the city which appoints them.
*149Respondent County Court judge found denials of both due process of law and equal protection. He ruled:
“The Court further finds it is a matter of law that a municipal judge cannot consciously or subconsciously erase the fact that his continued position and financial interest from that position as a municipal judge rests on the daily reality that the city council may remove him for any reason or without any reason at any time in its sole discretion.”
The initial inquiry is whether municipal courts are truly courts, existing as part of the judicial branch of government and exercising judicial powers, or mere city administrative agencies. If they are courts, within the judicial branch of government, they must be accorded the attributes of courts, including reasonable independence from control by nonjudicial branches of government.
Municipal courts have been established by legislative enactment, C.R.S. 1973, 13-10-101, et seq. They have jurisdiction to “hear and try all alleged violations of ordinance provisions of such city or town,” C.R.S. 1973, 13-10-104, and therefore, the City of Thornton is a litigant in all cases heard before the Thornton Municipal Court. “All judicial powers” are vested in the municipal judge, subject to rules promulgated by the Colorado Supreme Court. C.R.S. 1973, 13-10-112. Colorado Municipal Court Rules of Procedure have been adopted by this Court. These grants of judicial authority, together with placement of supervisory and rule-making authority in this Court, clearly demonstrate that municipal courts are, and are intended to be, not administrative agencies, but courts, within the judicial branch of government.
One of the attributes of every court, under familiar principles of separation of powers, is a reasonable degree of independence from control by other branches of government. Smith v. Miller 153 Colo. 35, 384 P.2d 738 (1963). Unless otherwise provided by the charter of a home rule city, the statute decrees that municipal judges are to be appointed for minimum terms of two years. Thus the problem here presented does not affect the many municipal courts in this state where a degree of judicial independence has been provided by appointing judges for fixed terms of two years or more.
But the charter of Thornton, a home rule city, provides that municipal judges there are appointed to serve at the pleasure of the city council. By jurisdictional definition, the City of Thornton is always a party in any case filed in its municipal court. C.R.S. 1973, 13-10-104. Thus, one litigant before the court has the power to remove the judge if his decision should displease that litigant. No insulation whatever is provided to insure the judges’ independence.1 There are neither provisions for a fixed term of *150office, nor guidelines for removing the judges for cause. For example, if the city council disagrees with a judge’s interpretation of a particular ordinance, it may remove him and immediately substitute a judge whose interpretation of the ordinance accords with that of a majority of the city council. Similarly, if t[ie city council feels that the judge is imposing inadequate fines, and thus the city’s revenues are suffering, he can be told to increase the fines or face immediate discharge.
In fact, a Thornton judge could be removed in the midst of trial if one of his rulings were distasteful to a majority of the city council. At any time, and as to any case, one of the litigants, the city, has the power to choose the judge who will hear the case. This situation is abhorrent to the concept of fundamental fairness and so inherently likely to deprive the court of real independence as to deny litigants opposing the city the impartial tribunal required as an element of due process. Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).
The majority opinion seeks to distinguish Ward and Tumey on the grounds that in Ward the judge occupied an executive as well as a judicial office, and in Tumey the judge had a direct pecuniary interest in the fines he assessed. In my view there is no difference in substance. The implicit and omnipresent threat that a Thornton judge can be removed immediately without cause hangs like the sword of Damocles above his bench as he rules on cases. The single hair by which it hangs is the “pleasure” of the city council whose attorney litigates before him.
In such a situation it is not adequate to brush off the due process argument, as the majority opinion has, by the assertion that there was no showing of actual bias of a specific municipal judge in a particular prosecution. This is not a case where it is claimed that the scheme providing that a municipal judge serve “at the pleasure” of the city council is unconstitutional in its application to a particular litigant. The claim is broader: that the scheme is unconstitutional on its face as applied to all defendants prosecuted in such courts. Moreover, to impose a burden of proof that one show by evidence that the attitude of a particular judge was altered because he might be removed is to impose an impossible burden. We live in a real world, and courts need not close their eyes to the obvious. Indeed, if anyone knows the effect of the city’s removal power, surely it is the municipal judges. The Colorado Municipal Judges Association argues, in its amicus brief:
“How can a judge remain neutral and detached when the performance of his duty before a party to an action, i.e., the City of Thornton, is itself judged by that same party having the power to retain or discharge the judge without justification? As long as the City may discharge its municipal judge for reasons which may be arbitrary and capri*151cious, the subtle incentive to protect his position must always sit alongside the judge when he renders his decision.”
Nor can it any longer be argued that the availability of a de novo review in the county court cures the defect. In Ward, supra, the United States Supreme Court expressly rejected that argument, holding that a defendant is entitled to a neutral and detached judge in the first instance. This rationale is especially appropriate here where the small amounts of fines involved may tempt a litigant to accept an unjust result rather than incur the expense and loss of time required to appeal the case for a trial de novo. For may law-abiding citizens, the municipal court is their only contact with the judicial system. Therefore, it is essential to public confidence in the court system that litigants perceive municipal courts as fair, independent tribunals.
In People v. Mullins, 532 P.2d 736 (Colo. 1975), we addressed the question of whether due process is denied or separation of powers violated because this Court appoints the Colorado Public Defender and fixes the amount of his compensation. There we held:
“Although the public defender is appointed by the Supreme Court, his office is afforded certain protections by the statute. The State Public Defender is appointed for a term of five years, can be removed only for cause, and his salary is not subject to diminution during his term of office.” 532 P.2d at 739.
None of these insulating protections, thought essential to the constitutionality of the Public Defender plan, are present in the instant situation to shield the independence of Thornton’s municipal judges.
It is no answer, as the majority opinion implies, that the people by state constitutional amendment have authorized the municipal court system here under attack. The supremacy clause of the United States Constitution precludes the people of this state from adopting, by state constitution, any provision which would violate the due process clause of the United States Constitution. U.S. Const. Art. VI § 2 and Amdt. XIV. See People v. Western Union Telegraph Co., 70 Colo. 90, 198 Pac. 146 (1921); People v. Max, 70 Colo. 100, 198 Pac. 150 (1921).
Nor can the majority opinion draw any meaningful support for appointing judges to serve “at the pleasure” of the city council from its citation of Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). That case dealt with the Superior Court for the District of Columbia, a court whose judges are appointed by the President for terms of fifteen years, during which their salaries may not be reduced. Such judges obviously have far more independence than those involved here.
As Alexander Hamilton recognized in No. 79 of the Federalist papers:2 “In the general course of human nature, a power over a man’s *152subsistence amounts to a power over his will.” Human nature has not changed much in the intervening two centuries.
Today, in the wake of Watergate, this Court should be particularly sensitive that an independent judiciary is indispensable to preservation of freedom under our system of government. Recent history provides stark examples of what may occur when judges are rendered subservient. Willig, The Bar in the Third Reich, 20 The American Journal of Legal History 1 (1976).
I would hold unconstitutional as a denial of Fourteenth Amendment due process the practice of appointing judges to serve at the pleasure of the city council of the municipality which prosecutes cases in that court. Therefore, I would find it unnecessary to reach the equal protection issue.
Clearly, a statute, or state constitutional provision to the effect that members of this court serve "at the pleasure" of the Governor, or the General Assembly, would violate the separation of powers doctrine.
The Federalist No. 79, at 107 (Dunne Ed. 1901 )(A. Hamilton).