dissenting.
We respectfully dissent from the majority opinion.
*792Tennessee, like most of the older states in the Union, and like the United States itself, does not have, nor has it ever had, any constitutional requirement that judges have licenses to practice law. Nor do state statutes so require in all instances. Perhaps this is unfortunate. Possibly it is a situation that should be altered, either by legislation or by constitutional amendment. But in our opinion, however desirable such a change might be, it is not within the prerogative of1 the judicial department to order it. Nor does any provision of either the state or the federal constitution require it. •
A constitutional convention meeting in Tennessee in 1977 proposed a revision to the judicial article of the state constitution which, among other things, would have required that judges be lawyers. This proposal was rejected at the polls by a substantial majority of the persons voting. The members of the judiciary, lay and lawyer alike, opposed the amendment on various grounds and were active in its defeat.
For this Court, at this date, to interpret the due process clause of the Tennessee Constitution to require that the judges hearing and disposing of certain types of cases be attorneys is, in our opinion, improper judicial legislation, no matter how well intended it may be. When the case of North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976), was pending before the Supreme Court of the United States, it was confidently predicted by many persons that the decision in that case would end the use of lay judges in the United States. It did not. The majority of the Court held that nothing in the due process clause of the Fourteenth Amendment requires that a judge of an inferior court be a licensed lawyer where there is an appeal provided to a second-tier court presided over by a lawyer and affording de novo review. Such is the Tennessee juvenile system, and, in our opinion, the decision in North v. Russell is conclusive of the constitutional arguments advanced here. The majority has seen fit to rely upon a dissenting opinion in that case and to extend its rationale to the state constitution, despite prior decisions of the state courtg that the due process clause of the state constitution is identical in scope and purpose with that of the federal. See Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739 (1965); Kittrell v. Kittrell, 56 Tenn.App. 584, 409 S.W.2d 179 (1966).1
Probably it would be desirable that juvenile judges be licensed attorneys. It would probably also be desirable that they have training in sociology, psychology, family counseling and other related subjects. Indeed, it is a fact of which the Court may take judicial knowledge that many, if not most, of the juvenile judges in the state are members of the Council of Juvenile Court Judges, which is provided for by statute, T.C.A. § 37-278 et seq. This council affords seminars and training to its members, lawyers as well as lay persons, to assist in the administration of the juvenile justice system. For this Court to assume that every lay person exercising juvenile jurisdiction has. “no expertise or training in the law” is utterly fallacious and totally undocumented in the record. To use that same assumption as a basis for interpreting the state.constitution to require a law license for the exercise of an important segment of the statutory jurisdiction of such judges is, in our opinion, error of egregious proportions.
The Tennessee statutes dealing with juvenile offenders, like those of most other states, were idealistically conceived and have as their purpose the removal of such offenders from the regular criminal justice system, unless more serious offenders are transferred there pursuant to the provisions of T.C.A. § 37-234. The statutes contemplate “a simple judicial procedure,” T.C.A. § 37-201; afford numerous alternatives to *793judges in the disposition of delinquent, unruly, dependent and neglected, and abandoned children; and expressly provide that any disposition or adjudication in the juvenile court
“is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment.” T.C.A. § 37-233.
It is true that in numerous cases proceedings in the juvenile courts have been analogized to criminal cases, and many constitutional safeguards and protections incident to regular adult criminal proceedings have been held applicable to cases in juvenile courts. Further, the system has received •considerable criticism, and there is support for abandoning the “two-track” system of juvenile and criminal courts, and returning juvenile offenders, particularly in the more serious cases, to the regular criminal justice system. See e. g., comments by Sen. Edward M. Kennedy in a recent article “Juvenile Criminals are Getting Away with Murder,” The Judges’ Journal, Vol. 17, No. 4, p. 4 (1978).
In our opinion, however, it is not for the courts to determine whether or not the juvenile justice system has failed in its intended purpose. That is a decision for the legislature and for the voting public. Certainly there is no evidénce in the present record to justify .any such conclusion. It is our apprehension that the “advancing standard” so ardently advocated by the majori-. ty will, without sufficient documentation, deal a serious blow to the administration of the juvenile justice system and will “advance” the treatment of juvenile offenders directly back into the eighteenth century, where they were tried and dealt with as common criminals. Perhaps this is as it should be, but there are no convincing data to that effect in the present record, nor, in our opinion, is there anything in either the state or the federal constitutional due process provisions requiring any such result.
The state already has a system of regular criminal courts, presided over by lawyer judges. In our view, the effect of the present decision will simply cause lay juvenile judges to transfer most delinquency petitions to the criminal courts for disposition. Possibly the ramifications of the opinion may be such as to require that result in all delinquency petitions. As we understand the majority opinion, even though a lay juvenile judge is constitutionally disqualified from performing an important segment of the duties assigned by statute to his office, he nevertheless may continue to hold the office and perform a number of other duties. He simply may not try delinquency petitions. To say the least, this is an unusual proposition. Ordinarily when an individual lacks the qualifications for an office required by the constitution, he simply may not hold that office and must be removed and replaced by a competent individual. See Waters v. Ogle, 583 S.W.2d 756 (Tenn.1979).
Nevertheless, as we understand the majority opinion, lay judges presently exercising juvenile jurisdiction may continue to function except in delinquency cases. From a constitutional standpoint, therefore, it must follow that the juvenile justice statutes as presently written, insofar as they authorize the trial of a delinquency charge before a lay person, are unconstitutional for lack of due process. The result of that conclusion, therefore, is that they probably cannot be enforced in counties having lay persons as juvenile judges. Minority, however, is not and never has been a defense to most criminal charges. Juveniles are not immune from the criminal law. In counties having lay judges, therefore, juvenile offenders may have to be processed and tried through courts which do afford due process, that is, the regular criminal courts, while in counties having lawyer judges, the juvenile offenders may continue to be accorded the more lenient treatment and options available under the juvenile justice system. This, in our opinion, presents an equal protection problem of enormous proportions, possibly rendering the entire system unconstitutional and requiring all charges of delinquency to be tried and disposed of in the regular
*794criminal justice system. To use a vernacular consonant with the majority opinion, this would seem to be throwing out the baby with the bath water and is, assuredly, not the result intended by the majority. To say the very least, however, the ramifications and effects of the majority opinion may be far-reaching and, in our opinion, have been given insufficient analysis. This Court does not have the authority to create other courts or judgeships or to “transfer” jurisdiction from one court to another. Without intending to do so, in our opinion, the majority may have effectively terminated the present juvenile system of the state insofar as charges of delinquency are concerned, thereby depriving youthful offenders of the many options, lenient treatment and de novo appeal which the General Assembly intended to afford them as a matter of public policy.
Further, we find no warrant for the conclusion stated by the Court of Appeals, Middle Section, in its opinion in State v. Williams, referred to in the majority opinion, that there is “a reasonable likelihood or probability of prejudice” when lay judges “preside over juvenile proceedings that result in incarceration.” Juvenile judges have authority to determine many other questions as far reaching as temporary incarceration, such as permanent custody, and there is simply no basis in the record nor any empirical data, insofar as we are aware, to indicate that such judges would be more' likely to show “prejudice” in one type of case as against another.
Equally unsupported is the assertion in the majority opinion that hundreds or thousands of Tennessee children have been “deprived of their liberty by judges who had no expertise or training in.the law.”
The juvenile judge who heard and disposed of the present case had nineteen years of judicial service. He had three years of training in a law school whose graduates are accredited by this Court to take the Tennessee Bar Examination. Only as an afterthought — indeed after trial of the habeas corpus case on its merits — was the matter of the judge’s qualifications even made an issue in the case. The testimony at the habeas corpus hearing was highly conflicting and disputed, but at the conclusion thereof an experienced chancellor, from the bench in an oral opinion, held that no error had been committed and that there had been free, voluntary and conscious pleas of guilty and waiver of right to counsel. The Court of Appeals concurred in these findings.
According to an appendix to the State’s brief in this Court, there were twenty counties in the state, as of August 13, 1976, having fewer than seven lawyers, one of them having none at all. All but thirty-one of the juvenile judges in the state received a salary of less than fifteen thousand dollars according to a statistical study made in 1974. From these data, it seems apparent to us that there may be serious problems in attracting attorneys to seek or hold the office of juvenile judge, particularly in those counties where the juvenile judge is also the county judge and has numerous other duties. We are in full agreement that, as a master of state constitutional law, the General Assembly may impose requirements for judges in addition to those set out in Article 6, and that it may require judges to be lawyers when that is deemed necessary. The absence of such a requirement, however, particularly in rural areas, is entirely understandable and is consistent with the political, constitutional and judicial history of the state.
We do not disagree with the statements made in the majority opinion that due process is not a fixed or rigid standard, and that there must be room for expansion in constitutional interpretation to meet evolving needs and problems. Constitutions, however, are the basic framework of government in American political theory. While designed to be elastic and to permit expansion, they are nevertheless, like most foundations, permanent in nature, subject to revision and amendment only by prescribed methods. They are more like concrete and steel in the foundation of a building than mere putty or soft plastic. The ideal of a rule of law, rather than of men, while never *795completely attainable, is reflected in the existence of written constitutions, the interpretation and construction of which are not supposed to change with personnel, on a court or in any other branch of government, but are designed to afford stability and permanence.
We would not be opposed to a statutory provision by the General Assembly that judges be licensed lawyers. We certainly would not oppose a specific amendment to the state constitution to that effect. We are unalterably opposed, however, to interpreting the constitution, particularly upon an inadequate and undocumented record, to achieve ends which might otherwise and superficially seem desirable to the then current majority of a court of last resort.
If the rights of either of the two juveniles whose cases are involved here have in any way been impinged upon by the procedures followed at their hearing in April 1976, there are and have always been ample statutory procedures available for the correction of such errors. To hold that the judge who tried them, however, is constitutionally disqualified from hearing the case is quite another matter and is a departure from precedent and principle in which we cannot concur.
As previously stated, there can be no doubt that the majority opinion is well-intended and that its purpose is to make meaningful the right to counsel constitutionally guaranteed to youthful offenders, including the right to be represented at the hearing of a juvenile delinquency charge and to be advised of the broad appeal and right to a re-trial afforded in the statutory system, including a jury trial if desired. In our view, these desirable ends could be achieved very simply and with a much less drastic effect upon the juvenile justice system by requiring that in every case in which a juvenile is charged with violation of the criminal law and with being a delinquent, he must be afforded counsel and that there can be no waiver of that right.
It would be a simple matter to. reverse this case and to require a re-trial with proper representation of the accused, including advice to them of their right to appeal if found guilty. The law in this state does not and, to our knowledge, never has permitted final judgment to be rendered against minors in civil litigation without assurance that their interests are safeguarded by a guardian ad litem, general guardian or other representative. It would seem that persons charged with delinquency are entitled to at least the same rights, and that parents, custodians or others should not be permitted to waive a juvenile’s right to counsel. Such a holding, in our opinion, would preserve intact the juvenile justice system and would also preserve the public policy announced by the legislature therein.
For these reasons we respectfully dissent from the majority opinion.
. Although the majority opinion deals only with delinquency charges, the dissent in Perry v. Banks, 521 S.W.2d 549 (Tenn.1975), alluded to by the majority, was not so limited: If the major premise of the majority opinion is valid, it seems to us inevitable that no lay judge could ' ever preside over any type of hearing involving deprivation of liberty, including General Sessions judges and judges of municipal or other courts having statutory jurisdiction to impose jail or prison terms.