Opinion
No. E2000-00664-COA-R3-CV.
Filed October 31, 2000. August 9, 2000 Session.
Appeal from the Criminal Court for Hamilton County, No. 225103, Douglas A. Meyer, Judge.
Affirmed in Part, Reversed in Part; Case Remanded.
Kenneth O. Fritz, Chattanooga, Tennessee, for the appellant, City of Chattanooga.
Jerry H. Summers, Chattanooga, Tennessee, for the appellee, Kevin Davis.
Paul G. Summers, Attorney General Reporter, and Peter M. Coughlan, Assistant Attorney General, for the intervening party, State of Tennessee.
Charles D. Susano, Jr., J., delivered the opinion of the court, in which Houston M. Goddard, P.J., joined by way of a separate concurring opinion. Herschel P. Franks, J., filed a dissenting opinion.
OPINION I.
The City appeals from the trial court's order finding three statutory provisions and a city ordinance unconstitutional and/or invalid. The text of the statutes and city ordinance at issue provide, in pertinent part, as follows:
T.C.A. § 6-54-306
All home rule municipalities are empowered to set maximum penalties of thirty (30) days imprisonment and/or monetary penalties and forfeitures up to five hundred dollars ($500), or both, to cover administrative expenses incident to correction of municipal violations.
(a) Except as provided in § 6-54-306 for home rule municipalities, the legislative body of any other municipality may establish a monetary penalty not to exceed five hundred dollars ($500) for each violation of an ordinance of such municipality.
(b) The authority for increased monetary penalties for ordinance violations provided by this section does not apply to ordinances regulating all moving traffic violations.T.C.A. § 55-10-307
(a) Any incorporated municipality may by ordinance adopt, by reference, any of the appropriate provisions of §§ 55-8-101 — 55-8-180, 55-10-101 — 55-10-310, 55-50-301, 55-50-302, 55-50-304, 55-50-305, 55-50-311, and 55-50-312, and may by ordinance provide additional regulations for the operation of vehicles within the municipality, which shall not be in conflict with the provisions of such sections. . . .Chattanooga City Ordinance § 1-8
Among the provisions that municipalities are authorized to adopt pursuant to this section is T.C.A. § 55-10-205, the state reckless driving statute.
(a) Wherever in this Code or in any ordinance or rule of regulation promulgated by any officer of the city under authority vested in him by law or ordinance, any act is prohibited or is declared to be unlawful or a misdemeanor, or the doing of any act is required, or the failure to do any act is declared to be unlawful, the violation of any such provision of this Code or any such ordinance, rule or regulation shall be punished by a monetary penalty and forfeiture not exceeding five hundred dollars ($500.00).
The defendant, Kevin Davis, was cited for reckless driving in violation of a city ordinance. Davis appeared in Chattanooga City Court, where he pled guilty to the charge and was fined $300.
Chattanooga City Code § 24-13 provides as follows:
(a) Any person who drives any vehicle in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving.
(b) Every person convicted of reckless driving shall be punished upon the first conviction by a fine of not less than five dollars ($5.00), on a second conviction by a fine of not less than ten dollars ($10.00), on a third conviction by a fine of not less than twenty-five dollars ($25.00) and on all subsequent convictions by a fine of not less than fifty dollars ($50.00).
It should be noted that this provision, while setting minimum fines for violations, does not set maximums.
Davis appealed to the Hamilton County Criminal Court (hereinafter referred to as "the trial court") and filed a motion to dismiss, arguing, inter alia, that the imposition of a fine in excess of $50 violates Article VI, § 14 of the Tennessee Constitution, which provides, in pertinent part, that "[n]o fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers. . . ." In addition to challenging the constitutionality of the fine itself, Davis argued below and contends on this appeal that T.C.A. § 6-54-306, which enables home rule municipalities such as Chattanooga to impose penalties up to $500 for violations of municipal ordinances, is unconstitutional in that it "deprives an individual of due process of law and fundamental fairness."
Section 4.1 of the Chattanooga City Charter states that an appeal from the city court "may be taken to the circuit [criminal] court of Hamilton County." (Brackets in original).
Following a hearing on June 21, 1999, the trial court entered an order purporting to "amend" the lower court's judgment and reducing the fine to $50. On July 14, 1999, the trial court entered another order, enjoining the City from imposing or collecting fines or penalties in excess of fifty dollars. The injunction was later modified to allow the City to accept payment of fines imposed before the date of the injunction. The City moved to stay the injunction, which motion was denied. The City then filed an application for an extraordinary appeal with this Court seeking to stay the injunction; we denied the City's application.
Davis filed a motion in the trial court seeking a clarification of that court's decrees, arguing that although the trial court had "overruled the defendant's constitutional attack on T.C.A. § 6-54-306," the court had "expressed its personal belief [at the June 21, 1999, hearing] that said statute was unconstitutional." Davis requested another hearing so the trial court could "clarify its present position" as to the constitutionality of the statute.
The trial court entered an order directing the Tennessee Attorney General to file a brief. Following a hearing in which the Attorney General participated, the trial court entered an order in which it made several findings. First, the trial court reiterated its holding that Davis should be fined $50 for violation of the city ordinance against reckless driving. Second, the trial court declared that the $300 fine imposed by the city judge violates Article VI, § 14 of the Tennessee Constitution. Third, the trial court held that T.C.A. §§ 6-54-306 and 6-54-308 are "unconstitutional in their application." The court stated as follows:
There is no reasonable basis or criteria by which [home rule municipalities] can be considered as a class different from other municipalities or non-incorporated areas of the State. The classification is purely arbitrary and therefore unconstitutional under the equal protection clause[s] of the United States and Tennessee Constitutions.
Fourth, the trial court declared T.C.A. § 55-10-307 to be "unconstitutional in its applications," reasoning that "[b]y delegating to municipalities the authority to adopt by ordinances state statues [sic] without requiring them to impose the same penal provisions, the legislature is denying citizens equal treatment under the law." The court stated that this legislative grant of authority was also unconstitutional because "[p]rosecutorial discretion in this situation rests not with the District Attorney General, but with police officers and others, who may arrest with or without a warrant . . . and subsequently bring the offender to City Court for an ordinance violation or General Sessions Court for a state law violation." Fifth, the trial court declared City Code § 1-8 "invalid as enacted because it does not (1) set maximum penalties of thirty days, (2) does not state that it is to cover administrative provisions incident to correction of municipal violations, and (3) states that violations of ordinances shall be punished by a monetary penalty." (Emphasis in original). The trial court reasoned that if the purpose of the ordinance is to punish violators of municipal ordinances, then the penalty imposed is a criminal penalty and cannot be considered a civil penalty. Finally, the trial court made permanent the July 14, 1999, injunction enjoining the City from imposing or collecting fines or monetary penalties in excess of fifty dollars.
The City appeals, presenting four issues, which we restate as follows:
1. Did the trial court err in holding that the fine imposed by the city judge violates Article VI, § 14 of the Tennessee Constitution?
2. Did the trial court err in finding T.C.A. §§ 6-54-306, 6-54-308, and 55-10-307 unconstitutional?
3. Did the trial court err in finding Chattanooga City Code § 1-8 invalid?
4. Did the trial court lack jurisdiction to issue an injunction precluding the City Court from imposing civil penalties in excess of fifty dollars?
The Attorney General joins this appeal to defend the constitutionality of the challenged statutes.
II.
We begin our analysis with a threshold review of the role of the trial court in an appeal from the Chattanooga City Court. An appeal from a municipal court is subject to the same terms and restrictions as an appeal from general sessions court. T.C.A. § 27-5-102 (1980). An appeal from general sessions court is heard de novo in the circuit court. T.C.A. § 27-5-108(c) (1980). As the Supreme Court has stated:
De novo appeals from the general sessions courts differ from other types of appellate proceedings. The circuit court does not review the general sessions court's decision. Rather, it provides the parties an entirely new trial as if no other trial had occurred and as if the case had originated in the circuit court.
Ware v. Meharry Med. College, 898 S.W.2d 181, 184 (Tenn. 1995) (citation omitted).
In conducting a de novo hearing, the trial court was not charged with the responsibility of reviewing the propriety of the fine imposed by the city court; rather, it was to adjudicate the charge of reckless driving as if the hearing in the city court had never happened. In so doing, the trial court was presented with two issues: (1) whether the defendant was guilty of violating the ordinance and, (2) if so, what the appropriate penalty should be. It does not appear from the record that Davis' guilt was at issue on the appeal to the trial court. Accordingly, the issue before the trial court was the amount of the penalty. The trial court assessed a $50 fine. Because this amount does not run afoul of Article VI, § 14, the issue of the constitutionality of a fine in excess of $50 is not squarely presented by the trial court's resolution of the reckless driving charge against Davis.
While it was not required to determine the correctness of the city court's judgment, the trial court elected to do so. This arguably calls into play the principle that a court should not reach a constitutional questions unless it is absolutely necessary. See Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). However, in this case, the trial court's assessment of a $50 fine stems from its determination that any fine above that amount would be unconstitutional. The trial court issued an injunction against the City because of this finding. We therefore find it necessary to resolve whether a fine in excess of $50 imposed for a violation of a municipal ordinance violates Article VI, § 14.
As we have previously stated, Article VI, § 14 provides as follows:
No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars.
At first blush, it would seem unnecessary to proceed any further: Davis was, at least initially, fined $300, and the Constitution prohibits the imposition of a fine of more than $50. However, our inquiry does not end there, because, as noted below, there is ample precedent that penalties imposed by municipalities for violations of their ordinances — penalties that are often referred to as fines — are actually not "fines" within the meaning of Article VI, § 14.
In City of Chattanooga v. Myers, 787 S.W.2d 921, 926 (Tenn. 1990), the Supreme Court noted that it had long been held in Tennessee that an action to recover a fine or penalty for a violation of a municipal ordinance is a civil proceeding. The Court traced this rule back to its decision in Meaher v. Mayor and Aldermen of Chattanooga, 1 Head 74, 38 Tenn. 74 (1858), in which the Court stated:
If the fine, forfeiture, or penalty — for the name is not so material — — is fixed by the ordinance, for any particular thing, that may be recovered by warrant, and the only proof required is, that the offence, or act to which such fine or forfeiture is attached, has been committed. Debt is the proper action for penalties prescribed for certain offences, by acts or ordinances.
Myers, 787 S.W.2d at 923 (citing Meaher, 38 Tenn. at 76). (Emphasis in Myers ). In O'Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449 (1908), the Supreme Court recognized that a proceeding to recover a penalty for a violation of a municipal ordinance has characteristics of a civil as well as a criminal action:
In truth, when a violator of a municipal ordinance is arrested and brought before the municipal court, he is tried for an offense committed against the laws of the corporation; but, in the absence of apt legislation to the contrary, his punishment is in the form of the assessment of a penalty. The practice partakes of both a civil and criminal character. He is arrested on warrant as in criminal cases, and if found guilty a judgment is entered against him as for a fine, and on failure to pay the amount assessed against him he may be held in custody until he pays or secures it, or be put at labor to pay it. If dissatisfied with the judgment he may appeal, as in civil cases, upon complying with the law or statute applicable, and may have a retrial in the circuit court, where the matter will be heard de novo, the rules of practice applicable to civil cases applying in such trial; but at last the purpose of the action is punishment. So it is perceived the action is partly criminal and partly civil; a criminal action in substance and purpose, and partly civil and partly criminal in the practice governing it. When we characterize the action as being of a criminal nature, we do not mean to be understood as using the term wholly in the sense in which it is applicable to actions brought by the state in the form of indictments and presentments for violations of the criminal laws of the state, but rather by analogy, and for want of a better term. A municipality is a government within itself, and must have the power to punish for offenses against its laws, and must be able to bring that punishment to bear and to make it effective by its own agencies — that is, through its own courts and officers. However, the right of appeal may be given, and generally is given, and, if exercised, the municipality appears in another jurisdiction; that is, in the courts of the state, as a suitor to recover the penalty which it has assessed against the violator of its laws. But the larger court, while trying the controversy as a civil suit, will see to it that the municipality, if successful, shall have there the same sanctions for the enforcement of its laws as if the trial had terminated in the municipal court. In truth, the action is in its various aspects a hybrid one, partly criminal and partly civil.
O'Haver, 111 S.W. at 451-452.
In 1964, the Court of Appeals addressed the exact issue presented in the instant case. In O'Dell v. City of Knoxville, 388 S.W.2d 150 (Tenn.Ct.App. 1964), the defendant, who was fined $100 by a city judge for a violation of a municipal ordinance, argued that both the fine and the ordinance authorizing it violated Article VI, § 14. This Court expressly rejected the defendant's argument, relying upon the long-standing rule in Tennessee that a proceeding for a violation of a municipal ordinance is a civil action, not a criminal proceeding. Id. at 152.
Six years after the O'Dell decision, the United States Supreme Court held in Waller v. Florida, 397 U.S. 387, 395, 90 S.Ct. 1184, 1188-89, 25 L.Ed.2d 435 (1970), that, under double jeopardy principles, a defendant who was tried in a municipal court for violating a municipal ordinance could not later be tried by the state for state offenses based upon the same facts. In Metropolitan Government of Nashville and Davidson County v. Miles, 524 S.W.2d 656, 658-59, 660 (Tenn. 1975), the Tennessee Supreme Court, applying Waller, concluded that a proceeding for the imposition of a fine in a municipal court constituted jeopardy under the double jeopardy provisions of the Tennessee and United States Constitutions. The plaintiff, citing O'Haver and O'Dell , had argued that double jeopardy did not occur if the proceeding was simply for the imposition of a fine in a civil proceeding. The Miles Court rejected this argument, opining that O'Haver and O'Dell had been, "at least impliedly, overruled" by State v. Jackson , 503 S.W.2d 185 (Tenn. 1973). Miles, 524 S.W.2d at 659. In Jackson , the Supreme Court held that a juvenile found not guilty in a juvenile proceeding, which is considered a civil proceeding, could not be tried again for the same offense upon appeal to the circuit court. Jackson, 503 S.W.2d at 188.
In Metropolitan Government of Nashville and Davidson County v. Allen, 529 S.W.2d 699 (Tenn. 1975), the Supreme Court was presented with the issue of who should be the clerk of the general sessions court of Davidson County. The resolution of that issue required a determination of whether proceedings for violations of municipal ordinances are civil or criminal in nature. The Supreme Court concluded that such proceedings are civil. Id. at 706. In reviewing the applicable case law, the Court revisited Miles and noted that its language "may have been overbroad" when it was stated that O'Haver and O'Dell had been impliedly overruled:
More precise language — and language more in keeping with the thrust of our principal holding in Miles , which we reiterate — would have been:
These cases [ O'Haver and O'Dell ] are not authority for the proposition that an appeal may follow an acquittal, after a trial on the merits in a case involving violation of a city ordinance.
* * *
When examined in the light of the foregoing, there is no conflict between the Miles — Jackson holding and that of O'Haver and O'Dell .
Procedurally, cases involving violation of city ordinances continue to be civil in nature.
They are in the nature of an action for debt. They are not criminal prosecutions, but are merely penal actions having as their object the vindication of domestic regulations. They are governed by rules in civil cases including the right to retrial on appeal to the circuit court where the matter will be heard de novo.
An appeal for the violation of a municipal ordinance is a civil action, triable de novo in the circuit court in precisely the same manner and under the same procedural rules as those governing tort actions instituted in the General Sessions Courts, to include the right to a jury trial. But, as held in Miles , the rules of double jeopardy apply to preclude an appeal from a judgment of acquittal. This seemingly incongruous result is mandated by the holding of the Supreme Court of the United States in Waller v. Florida . . . and is supported by other cases cited in Miles .
Allen, 529 S.W.2d at 707 (citations omitted).
As we noted at the beginning of this particular part of our analysis, the Supreme Court, in City of Chattanooga v. Myers, 787 S.W.2d 921, 928 (Tenn. 1990), reaffirmed the principle that proceedings for violations of municipal ordinances are civil in nature. In Myers, the Supreme Court held that a defendant convicted of a violation of a municipal ordinance is entitled to a jury trial on appeal to the circuit court. Id. at 928. The Court stated as follows:
In summary, for 130 years proceedings to recover fines for the violation of municipal ordinances have been considered civil for the purposes of procedure and appeal, although the principles of double jeopardy have recently been determined to apply in such cases. The basis of the cases, accepted in Allen - Briggs , is that an appeal to circuit court of a judgment of a municipal court — even when the defendant is the appellant — is an appeal in a civil action brought by the municipality to recover a "debt."
" Allen-Briggs " is a reference to Metropolitan Government of Nashville and Davidson County v. Allen, 529 S.W.2d 699 (Tenn. 1975) and Briggs v. City of Union City, 531 S.W.2d 106 (Tenn. 1975). The latter case relied solely upon Allen to hold that a defendant convicted of a violation of a city ordinance is entitled to a jury trial upon appeal to the circuit court. Briggs, 531 S.W.2d at 107.
Id. at 928 (citation omitted).
In the course of analyzing the numerous cases on the issue, the Myers Court noted that this Court's holding in O'Dell — that a fine for the violation of a city ordinance is not a "fine" within the meaning of Article VI, § 14 — is "a holding compatible with the Allen - Briggs position." Id.
Finally, we note the recent decision of a panel of the Middle Section of the Court of Appeals in Barrett v. Metropolitan Government of Nashville and Davidson County, C/A No. M1999-01130-COA-R3-CV, 2000 WL 798657, at *2 (Tenn.Ct.App. M.S., filed June 22, 2000) (perm. app. filed August 22, 2000), wherein this Court, speaking through Judge Cantrell, held that "when the dust settled after the Myers decision, O'Dell was still the leading case on whether a jury had to impose a fine/penalty of more than $50 for the violation of a municipal ordinance." In addressing violations of a city ordinance, we specifically held in Barrett that
the courts have adhered to the Meaher holding that the name given the punishment in the ordinance — whether fine, forfeiture, or penalty — is not material; it is still in the nature of a civil debt, recoverable in a civil action. Therefore, the imposition of the $500 penalties by the general sessions court did not violate Article 6, § 14 of the Tennessee Constitution.
Id . at *2 (citations omitted).
Accordingly, pursuant to O'Dell, Barrett, and Myers , we conclude that the $300 fine imposed by the city judge in this case does not violate Article VI, § 14 of the Tennessee Constitution. However, we will not disturb the trial court's judgment imposing a $50 fine upon the defendant, as that amount is within the penalty range provided by Ordinance § 1-8.
Were we free to "write on a clean slate," we might well be inclined to hold that the "penalty and forfeiture" mentioned in Chattanooga City Ordinance § 1-8 is, in fact, a fine of the type contemplated by Article VI., § 14, of the Tennessee Constitution. Such a holding would necessarily lead to a further holding that the legislation before us, both city and state, is unconstitutional as applied in this case, i.e., the imposition of a "penalty and forfeiture" in excess of $50 by a judge at a bench trial. However, we do not believe that we are at liberty to make such findings and holdings because the "slate" is not clean. There are two decisions of this Court, O'Dell and Barrett, expressly holding to the contrary. The Supreme Court's decision in Myers appears to approve the basic holding of O'Dell that a "fine" for the violation of a city ordinance is not a fine of the type contemplated by Article VI, § 14. We believe that we are bound by precedent to reject the Article VI, § 14, argument of the defendant, which argument was accepted by the trial court as a part of the rationale for its judgment. If an appellate judicial determination is to be made upholding the trial court's judgment on this point, we believe it is the prerogative of the Supreme Court to make it.
In summary, we find and hold that Chattanooga City Ordinance § 1-8, facially and as applied, does not violate Article VI, Section 14, of the Tennessee Constitution.
III.
We now turn to the issue of the constitutionality of T.C.A. §§ 6-54-306 and 6-54-308, which, respectively, enable home rule municipalities and non-home rule municipalities to impose penalties up to $500 for violations of municipal ordinances. In holding both provisions unconstitutional, the trial court declared that "no reasonable basis" exists to distinguish home rule municipalities "from other municipalities or non-incorporated areas of the State," and that such a classification is "purely arbitrary and therefore unconstitutional under the equal protection clause."
Article XI, § 8 of the Tennessee Constitution provides, in pertinent part, as follows:
The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.
Acknowledging the similarity between Article XI, § 8 and the Equal Protection Clause of the United States Constitution, Tennessee courts have long applied an equal protection analysis to constitutional challenges brought pursuant to Article XI, § 8. See Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 180 (Tenn. 1912); King — Bradwall Partnership v. Johnson Controls, Inc., 865 S.W.2d 18, 21 (Tenn.Ct.App. 1993). Absent an infringement of a fundamental right, or a classification involving a "suspect" or "protected" class — neither of which is present here — the standard to be applied in analyzing equal protection claims is the familiar "rational basis" standard. State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994); King — Bradwall, 865 S.W.2d at 21.
We do not find that these statutes violate equal protection. T.C.A. § 6-54-306 empowers home rule municipalities to enact penalties up to $500 for ordinance infractions; T.C.A. § 6-54-308 empowers all other municipalities to do the same. Pursuant to these provisions, all municipalities — home rule or otherwise — are empowered with the authority to impose increased penalties for violations of municipal ordinances. Thus, the trial court's conclusion that home rule municipalities are classified differently and in an arbitrary manner from other municipalities such as to violate equal protection is erroneous.
As for the distinction made between municipalities and "non-incorporated areas of the State," we find that the Legislature had a rational basis for this classification. An incorporated municipality, with clearly defined boundaries and police power responsibilities within those boundaries, certainly has a unique interest in addressing prohibited conduct that occurs within its geographic borders. By the enactment of T.C.A. §§ 6-54-306 and 6-54-308, the Legislature has provided such municipalities with a mechanism by which to enforce its own ordinances, to deter infractions by the imposition of penalties and/or imprisonment, and to recoup the administrative costs incurred in the process. We find that these reasons provide a rational basis for this classification. We find no violation of equal protection in the classification.
IV.
The trial court's rationale for declaring T.C.A. § 55-10-307 unconstitutional was two-fold. First, the trial court reasoned that the provision denies citizens "equal treatment under the law" in that it "delegat[es] to municipalities the authority to adopt by ordinances state statues [sic] without requiring them to impose the same penal provisions." Second, the trial court declared that the statute "impinges upon the authority of the District Attorney General," who alone "can make the decision whether to proceed with a prosecution for an offense committed within his or her district." We will address each of these rationales in turn.
Regarding the trial court's holding that T.C.A. § 55-10-307 denies equal protection, we find that a rational basis exists for the delegation of authority to enforce certain driving offenses. Certainly, a municipality has a special interest in the operation of motor vehicles on the streets within its borders. We therefore do not agree with the trial court that this delegation of authority denies "equal treatment" in violation of the Constitution. Again, we find the classification to have a rational basis. Furthermore, we find no basis for holding that the general authorization in T.C.A. § 55-10-307 runs afoul of equal protection simply because it fails to require a municipality to impose the exact penalties set forth in the corresponding state statutes. A municipality's obvious interest in the use of its streets is a sufficient rational basis for authorizing it to impose different penalties.
T.C.A. § 55-10-307(b) enumerates several offenses — driving while intoxicated, failing to stop after a traffic accident, driving on a revoked or suspended license, and drag racing — that remain solely state offenses.
In holding that T.C.A. § 55-10-307 unconstitutionally impinges upon the authority of the District Attorney General, the trial court relied upon the Supreme Court's recent decision in Ramsey v. Town of Oliver Springs, 998 S.W.2d 207 (Tenn. 1999). In Ramsey , the District Attorney General of Anderson County filed suit against the Town of Oliver Springs, alleging that the town's policy and practice of prosecuting Anderson County criminal cases in a city court located in Roane County was illegal. Id. at 207-08. The city court was granted jurisdiction over such cases by a private act. Id. The Supreme Court noted that the District Attorney General has "extremely broad" discretion in seeking warrants, presentments, informations, or indictments for offenses committed within his or her district. Id. at 209. The Court went on to state:
The Town of Oliver Springs is located in three counties, one of which is Anderson County; the city judge of the Town sits in the Roane County part of Oliver Springs.
Were it otherwise, prosecutorial discretion would rest not with the District Attorney General, but with police officers who may arrest with or without a warrant depending on the circumstances. This is, in fact, precisely the harm created by the policy and practice employed by the Town of Oliver Springs.
Id. at 210. While finding the private act "facially valid," the Supreme Court concluded that the act — by permitting the Town's police chief to take defendants who allegedly committed crimes in Anderson County before a city court in Roane County — "impeded the constitutional and statutory obligation of the District Attorney General for Anderson County to discharge the duties of his office." Id.
Relying upon Ramsey , the trial court in the instant case found T.C.A. § 55-10-307 to be unconstitutional. The trial court did not question the facial validity of the statute; rather, it found that "in its applications" the statute impinged upon the authority of the District Attorney General. We find that the trial court's reliance upon Ramsey is misplaced. In Ramsey , the private act was held to be unconstitutional as applied because the Town of Oliver Springs had both a "policy and practice" of prosecuting all Anderson County criminal cases arising within the town in the city court located in Roane County. In the instant case, however, there is insufficient evidence in the record to establish a "policy and practice" on the part of the City or its officers of citing all those who violate state traffic laws within the City's borders to the city court to be tried for violating a city ordinance, in those cases where there is both a state law and city ordinance implicated by the defendant's conduct. Two police officers testified that they knew of no policy or directive to cite traffic offenders only for municipal violations instead of state offenses. Further, the record does not contain evidence of a practice of the City's officers of citing only for municipal violations. As such, we cannot say that the City has a "policy and practice" of citing traffic offenders only to city court that rises to the level of impinging upon the discretion and authority of the District Attorney General.
V.
The trial court held that Chattanooga City Code § 1-8 is invalid because it does not "comply" with the provisions of T.C.A. § 6-54-306. Specifically, the court found that the ordinance (1) does not set a maximum penalty of thirty days; (2) does not state that it is to cover administrative expenses incident to correction of municipal violations, and (3) provides that violations of ordinances shall be punished by a penalty.
T.C.A. § 6-54-306 provides that "home rule municipalities are empowered to set maximum penalties of thirty (30) days imprisonment and/or monetary penalties and forfeitures up to five hundred dollars ($500), or both, to cover administrative expenses incident to correction of municipal violations." (Emphasis added). Clearly, the statute does not require a municipality to set a maximum penalty of 30 days imprisonment; nor does the statute require that the ordinance adopting this provision include a statement that the purpose of the ordinance is to "cover administrative expenses." These bases for the trial court's holding are without merit. Further, we do not find that the ordinance is invalid merely because of the use of the term "punished." As we have already held, the penalty imposed by this ordinance is a civil penalty; it is not criminal in nature. The fact that the City chose to use the language "punished by a monetary penalty" does not alter the civil nature of the penalty imposed. See Barrett at * 2. We therefore find that § 1-8 is valid.
VI.
We conclude that the trial court erred in finding the various state statutes and Chattanooga City Ordinance § 1-8 unconstitutional and/or invalid. It results that the injunction should not have been issued and, accordingly, the issuance of same is hereby reversed and held for naught. The judgment of the trial court assessing a $50 fine against the defendant is affirmed. This case is remanded to the trial court for the entry of an order consistent with this opinion. Costs on appeal are taxed to the appellee.
We further note that the injunction was improper for several other reasons. The injunction was not requested by either party in this case, nor was the City provided any prior notice of the injunction request. The record does not contain any "verified complaint, affidavit or other evidence" to demonstrate "immediate and irreparable injury, loss or damage" to a party, see Tenn. R. Civ. P. 65.04(2); in fact, the injunction is apparently aimed at preventing injury to "numerous individuals" who are unidentified. Moreover, we note that this was a de novo hearing on the charge of reckless driving. See T.C.A. §§ 27-5-102, 27-5-108(c) (1980). An injunction prohibiting the City from collecting fines or penalties from other "numerous individuals" is simply beyond the scope of the matter before the court.
________________________________ CHARLES D. SUSANO, JR., JUDGE
I concur in the opinion of Judge Susano because I believe he has accurately articulated the present state of Tennessee law on the subject at hand. I also concur in the dissenting opinion of Judge Franks, which urges the Supreme Court to accept this case if an application for permission to appeal is requested so that a definitive and authoritative rule may be enunciated as to this significant constitutional question.
___________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE
The ultimate issue in this case is whether the Courts of this State will accord to Kevin Davis, who was convicted and fined $300.00 in City Court for reckless driving, all of his constitutional rights under the Constitution of the State of Tennessee.
In the original Tennessee State Constitution of 1796 and carried forth in subsequent constitutions, is the provision now designated as Article VI, Section 14, which states:
No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars.
A trial judge may set a fine of more than $50 in only two circumstances, when the defendant waives the right for jury determination of the fine, and when the fine is statutorily specified and allows no judicial discretion in its imposition. State v. Martin, 940 S.W.2d 567, 570 (Tenn. 1997) (citing State v. Sanders, 735 S.W.2d 856, 858 (Tenn.Crim.App. 1987) and France v. State, 65 Tenn. 478, 486 (1873)).
The City Judge for the City Court of Chattanooga fined Davis $300.00 after Davis plead guilty to the charge of reckless driving. The relevant city ordinance under which Davis was fined is Section 24-13 of the Chattanooga City Code. This section states:
Sec. 24-13. Reckless driving.
(a) Any person who drives any vehicle in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving.
(b) Every person convicted of reckless driving shall be punished upon the first conviction by a fine of not less than five dollars ($5.00), on a second conviction by a fine of not less than ten dollars ($10.00), on a third conviction by a fine of not less than twenty-five dollars ($25.00) and on all subsequent convictions by a fine of not less than fifty dollars ($50.00).
Chattanooga City Code, Section 24-13.
The City of Chattanooga argues that the imposition of the $300 fine was authorized by T.C.A. § 6-54-306 and Chattanooga City Code § 1-8(a). T.C.A. § 6-54-306 provides:
Penalty for violation of home rule municipal ordinances. — All home rule municipalities are empowered to set maximum penalties of thirty (30) days imprisonment and/or monetary penalties and forfeitures up to five hundred dollars ($500), or both, to cover administrative expenses incident to correction of municipal violations.
Similarly, Section 1-8(a) of the Chattanooga City Code states:
Wherever in this Code or in any ordinance or rule or regulation promulgated by any officer of the city under authority vested in him by law or ordinance, any act is prohibited or is declared to be unlawful or a misdemeanor, or the doing of any act is required, or the failure to do any act is declared to be unlawful, the violation of any such provision of this Code or any such ordinance, rule or regulation shall be punished by a monetary penalty and forfeiture not exceeding five hundred dollars ($500.00).
The City argues that the violation of a municipal ordinance is civil rather than criminal in nature, and as such, the constitutional provision does not apply. The City suggests that the record shows that the legislative purpose of T.C.A. § 6-54-306 was to "reduce the economic detriment to municipal government . . . by assisting the City to help cover the administrative expense for prosecuting cases under municipal ordinances." The City relies on the legislative history to show that the statute was meant to be remedial, and therefore civil, in nature.
In this regard, the legislative history of T.C.A. § 6-54-306 reveals those sponsoring the passage of statute had a more punitive purpose in mind for it. The following is from the Tennessee General Assembly on April 23, 1991:
REPRESENTATIVE KENT: . . . you're not raising the fee. This is a penalty clause when people won't clean up their properties, such as, for example, the adult entertainment things, people have cars on there. Sometimes when you bring them back into court, you know, on a $50 fine on contempt, that's just no enough to get their attention. The 30 days imprisonment is in the present law, which stays in this law, that raises it $50 to $100.
* * * * *
REPRESENTATIVE TURNER: Now, this raises the fines on what?
KENT: It's not the fines; it's a penalty where if a person doesn't clean up a certain area, after they bring it back to the Court in (inaudible) violations, the penalty is $500, goes up.
And some of the categories, some of the categories are adult entertainment, any violation connected with alcoholic beverages and all, lot of times these people, then you bring them back to court for the violations, they won't even show up and they just forfeiture the $50, so what this does, this gives them $500.
The concept of increasing a penalty for repeat offenses is clearly punitive and not related to a remedial purpose of covering administrative expenses. In fact, other than simply providing figures for the total revenues and expenditures of the City Court Clerk, there is no evidence of how the fines imposed by the City Judge are to cover the administrative expenses incident to the correction of municipal violations. Fines imposed by the City Ordinance prohibiting reckless driving are intended as punishment and as a deterrent, and not as some remedial measure needed to make the city whole. The public at large, and not the city, is the intended beneficiary of the ordinance, as it is with the state's criminal statutes.
The majority holds Chattanooga City Code § 1-8, facially and as applied, does not violate Article VI, Section 14, of the Tennessee Constitution, thus allowing a city judge to impose a "monetary penalty" of greater than $50 for violation of a municipal ordinance. The majority admits that "were we free to 'write on a clean slate,' we might be inclined to hold that the 'penalty and forfeiture' mentioned in Chattanooga City Ordinance § 1-8 is, in fact, a fine of the type contemplated by Article VI, § 14, of the Tennessee Constitution." The majority, instead, feels constrained by precedent, and in particular, by O'Dell v. City of Knoxville, 388 S.W.2d 150 (Tenn.Ct.App. 1964) and Barrett v. Metropolitan Government of Knoxville and Davidson County, No. M1999-01130-COA-R3-CV, 2000 WL 798657 (Tenn.Ct.App. June 22, 2000) (application for permission to appeal filed with the Supreme Court). It seems clear that the fine of $300.00 imposed by a City Court Judge sitting without a jury is in violation of the Tennessee Constitution. Nevertheless, the majority suggests that:
[T]here is ample precedent that penalties imposed by municipalities for violations of their ordinances — penalties that are often referred to as fines — are actually not "fines" within the meaning of Article VI, § 14.
The majority is not without precedent. However, the majority's reliance on O'Dell and Barrett, two decisions from this Court, is misplaced, as hereinafter discussed.
The Supreme Court has expressed the preference for substance over form when determining when a person is entitled to the protections afforded to them by the Tennessee and United States Constitutions.
Ineluctable logic leads to the conclusion that the constitutional protection against double jeopardy, as is the case with the right of counsel and the privilege against self-incrimination, is applicable to all proceedings, irrespective of whether they are denominated criminal or civil, if the outcome may be deprivation of liberty of the person. . . . Precious constitutional rights cannot be diminished or whittled away by the device of changing names of tribunals or modifying the nomenclature of legal proceedings. The test must be the nature and the essence of the proceeding rather than its title. (Emphasis supplied).
State v. Jackson, 503 S.W.2d 185, 186-187 (Tenn. 1973) (quoting United States v. Dickerson, 168 F. Supp. 899 (D.C. 1958)); see also State v. Martin, 940 S.W.2d 567, 570 (Tenn. 1997) (holding that "our constitution is concerned with substance rather than form").
In this context, it is not determinative whether the $300.00 imposed on the defendant is called a fine, monetary penalty, or anything else. In fact, the City and State use the words interchangeably. Most notably, while T.C.A. § 6-54-306 and Chattanooga City Code § 1-8(a) refer to a "monetary penalty and forfeiture" not to exceed $500.00, the section of the City Code under which the defendant was found guilty, § 24-13, states that a defendant "shall be punished . . . by a fine." Instead of focusing on the choice of words used, the court must look at the purpose of the fine/penalty and whether such purpose was meant to be encompassed by the word "fine" as used in Article VI, Section 14 of the Tennessee Constitution.
The word "fine" is not defined by the Constitution, nor is there any mention of the words "criminal" or "civil" as a qualification for the word "fine." Tennessee Courts have made a few attempts at discerning what is encompassed by the term "fine" as used in the Constitution. In Poindexter v. State, 137 Tenn. 386, 193 S.W. 126 (1917), the Court held that a statute requiring a person abandoning a child to post a bond of greater than $50.00 was not unconstitutional because the penalty imposed by the statute was not a fine in the sense of the constitutional provision. The Court then attempted to articulate the difference between this "penalty" and a "fine":
While a fine is always a penalty, a penalty is not always a fine. A penalty when recovered ordinarily goes to the statutory beneficiaries while a fine goes to the state.
A fine is proportioned to the gravity of the offense punished, and the financial ability of a defendant to pay is not ordinarily considered. The penalty or bond exacted of a delinquent father under this act is measured by his ability to pay and the flagrancy of his offense is not taken into account.
Poindexter, 137 Tenn. 392-393, 193 S.W. at 128 (internal citations omitted)
The Supreme Court has also held that a statute (now repealed) authorizing a judge to fix payments in excess of $50.00 where a husband has failed to support his wife did not violate the Constitution because the payments provided for were not construed as punishment. Abbott v. State, 190 Tenn. 702, 231 S.W.2d 355 (1950).
Then, in O'Dell v. City of Knoxville, this Court found to be constitutional a city ordinance providing for a penalty of $100.00 for the operation of a vehicle while under the influence of an intoxicant. The Court relied on Poindexter in holding that the proceeding for violation of a city ordinance was a civil action and such a penalty was not a fine within the meaning of Article VI, Section 14 of the Tennessee Constitution. O'Dell at 388 S.W.2d 150, 152.
While the reasoning of this Court in O'Dell is unfavorable to the defendant's position, the result it reached is not incompatible. The ordinance at issue in O'Dell "provided for a penalty of not more nor less than $100.00" 388 S.W.2d at 152. The imposition of a statutorily specified fine, allowing no judicial discretion, is one of the recognized exceptions to the rule of jury imposition of fines. State v. Martin. Accordingly, the court did not need to reach the issue of whether the proceeding was civil or criminal, and its discussion of the same should properly be considered obiter dictum. Moreover, the reasoning in O'Dell is inconsistent with several of the cases decided by the Tennessee Supreme Court, including O'Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449 (1908) and Metropolitan Government of Nashville and Davidson County v. Miles, 524 S.W.2d 656 (Tenn. 1975).
The Tennessee Supreme Court addressed the issue of municipal ordinance violations in Miles when it was faced with the question of whether the double jeopardy clauses of the United States and Tennessee Constitutions applied to proceedings for the violation of a municipal ordinance where the penalty imposed is a fine and not a deprivation of liberty. The Metropolitan Government, relying on O'Dell and O'Haver, argued that the protection did not apply because the proceeding was a civil action and not a criminal prosecution. The Court held that the proceeding for the violation of a municipal ordinance was criminal in substance, in that it seeks to punish the defendant. Miles, 524 S.W.2d at 660.
The Court distinguished between a "fine" and a "civil penalty" as follows:
[I]n order for an alleged 'civil' action to be considered beyond the protection of the double jeopardy clause it was necessary that such action be 'remedial in nature' and not intended to have the effect of 'inflicting punishment' upon the citizen in order to vindicate public justice. . . .
* * * * *
We, therefore, hold that a proceeding in a municipal court for the imposition of a fine upon a person for allegedly violating a city ordinance is criminal rather than civil in substance, in that, it seeks punishment to vindicate public justice and, therefore, constitutes jeopardy under the double jeopardy clauses of the Tennessee and Federal Constitutions . . .
Miles is of particular importance as it focuses on the fact that it is a criminal action in substance and purpose, and held that the imposition of a fine/penalty by the city court for the violation of a municipal ordinance constitutes punishment that triggers certain constitutional protections, which in that case was the protection against double jeopardy. The Court had previously extended this protection to juvenile court cases which were considered to be "civil actions" on the grounds that such proceedings subjected the defendant to punishment. State v. Jackson, 503 S.W.2d 185 (Tenn. 1973). Additionally, the United States Supreme Court, in Waller v. Florida, held that the protection against double jeopardy applies to procedures for the violation of municipal ordinances. 397 U.S. 387, 90 S.Ct. 1184 (1970). To reach its decisions in Jackson and Miles, the Court recognized the punitive nature of these so-called "civil" actions and this resulted in an outcome inconsistent with that in O'Dell.
In the same year that the Court decided Miles, it also held that proceedings in city court are primarily civil in nature in deciding who serves as the clerk of the General Sessions Court of Nashville and Davidson County. Metropolitan Government of Nashville and Davidson County v. Allen, 529 S.W.2d 699 (Tenn. 1975). It elaborated:
They are in the nature of an action for debt. They are not criminal prosecutions, but are merely penal actions having as their object the vindication of domestic regulations. They are governed by rules in civil cases including the right to retrial on appeal to the circuit court where the matter will be heard de novo.
529 S.W.2d at 707 (internal citations omitted).
In Allen, the Court modified some of their prior language from Miles, stating that the language was "over broad" and that O'Haver and O'Dell were not overruled by State v. Jackson. Allen, 529 S.W.2d at 706-707. Instead, the Court concluded that there was no conflict between the Miles-Jackson holding and that of O'Haver and O'Dell. Id. It is important to note that while the Court modified some of its language in Miles, the critical essence of Miles remains, that some actions in the city court are criminal in substance and trigger constitutional protections. Most importantly, Miles has not been overruled!
In the most recent case on the issue of municipal violations, the Tennessee Supreme Court held that for the purposes of procedure and appeal, proceedings for the violation of a municipal offence was civil in nature, entitling the defendant to jury trial on appeal to circuit court. Chattanooga v. Myers, 787 S.W.2d 921 (Tenn. 1990). The Court reviewed the case law dating back to Meaher v. Mayor and Aldermen of Chattanooga, 38 Tenn. 75 (1858), which held that debt is the proper action for the violation of certain municipal ordinances. Without overruling any prior cases, the Court concluded that:
In summary, for 130 years proceedings to recover fines for the violation of municipal ordinances have been considered civil for the purposes of procedure and appeal, although the principals of double jeopardy have recently been determined to apply in such cases. The basis of the cases, accepted in Allen-Briggs, is that an appeal to circuit court of a judgment of a municipal court — even when the defendant is the appellant — is an appeal in a civil action brought by the municipality to recover a "debt." (Emphasis added).
Myers, 787 S.W.2d at 928 (internal citations omitted).
The Court in Myers cited extensively from O'Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449 (1908), a leading case on the question of whether proceedings for the violation of municipal ordinances are civil or criminal. In O'Haver, the Court expressly stated that such actions have characteristics of both civil and criminal proceedings, and held that a defendant may be imprisoned by a municipality for nonpayment of a fine. 111 S.W. at 451. While decided in 1908, the language of O'Haver best describes the nature of these proceedings as they occur today.
In truth, when a violator of a municipal ordinance is arrested and brought before the municipal court, he is tried for an offense committed against the laws of the corporation; but, in the absence of apt legislation to the contrary, his punishment is in the form of the assessment of a penalty. The practice partakes of both a civil and criminal character. He is arrested on warrant as in criminal cases, and if found guilty a judgment is entered against him as for a fine, and on failure to pay the amount assessed against him he may be held in custody until he pays or secures it, or be put at labor to pay it. If dissatisfied with the judgment he may appeal, as in civil cases, upon complying with the law or statute applicable, and may have a retrial in the circuit court, where the matter will be heard de novo, the rules of practice applicable to civil cases applying in such trial; but at last the purpose of the action is punishment. So it is perceived the action is partly criminal and partly civil; a criminal action in substance and purpose, and partly civil and partly criminal in the practice governing it. . . .
O'Haver, 11 S.W. at 451 (emphasis added). O'Haver also dispelled the legal fiction of considering actions brought for violation of municipal ordinances as actions for debt.
The fundamental error in this reasoning, as applied to the present case, is that the facts show no debt. The city did not perform the work at all, and acquired no debt against the defendant. . . . The arrest of the defendant was predicated, not upon the fact that he owed the city a debt, but that in refusing to lay the sidewalk he had violated an ordinance, and had thereby become guilty of committing a misdemeanor against the laws of the corporation. . . .
Id. at 453.
The Myers Court attempted to reconcile all the past cases on the issue, including O'Dell, and in the process, refused to acknowledge the blatant inconsistencies and Orwellian "doublespeak" that is prevalent throughout the existing case law. First, the Court likens the action to an action for debt, in order to provide for a civil appeal. Myers, 787 S.W.2d at 928. Yet both O'Dell and O'Haver have held that such action is not one for a debt, allowing the municipality to imprison a person for failure to pay the fine/penalty without running afoul of the United States and Tennessee Constitutions that prohibit imprisonment for failure to pay a debt. O'Dell, 388 S.W.2d at 152; O'Haver, 111 S.W. at 453.
Next, the Myers Court concludes that the fine/penalty is "civil for the purposes of procedure and appeal," but recognizes that some "penalties" may be considered punishment for the limited purpose of double jeopardy analysis. Myers, at 928.
Additionally, the Court in Myers relied on the language in Allen, to wit:
Procedurally, cases involving violation of city ordinances continue to be civil in nature. They are in the nature of an action for debt. They are not criminal prosecutions, but are merely penal actions having as their object the vindication of domestic regulations. They are governed by rules in civil cases including the right to retrial on appeal to the circuit court where the matter will be heard de novo.
Myers, 787 S.W.2d at 922 (quoting Allen, 529 S.W.2d at 707). However, the Court took a different view in Miles, which was decided just prior to Allen.
The Court in O'Haver best summarized the nature of a proceeding for violation of a municipal ordinance when it said that it is a criminal action in substance and purpose, while being partly criminal and partly civil in the practice of governing it. O'Haver, 111 S.W. at 451.
As stated above, the City's and the majority's reliance on O'Dell is misplaced. First, as already noted, the ordinance imposed a specific fine and did not leave the judge with any discretion. Second, this language in O'Dell regarding the distinction between a fine and a penalty while dicta to that holding, is also contrary to the later case of Miles. The majority also relies upon Barrett v. Metropolitan Government of Nashville and Davidson County, No. M1999-01130-COA-R3-CV, 2000 WL 798657 (Tenn.Ct.App. June 22, 2000). In that case Frank Barrett violated a City ordinance regarding the repair of a building without a permit, and was fined $500.00 plus costs on each of five civil warrants that had been issued. This Court held that the "fine" or "penalty" resulting from the violation was in the nature of a civil debt that was not covered by Tennessee Constitution, Article VI, Section 14. The Court relied heavily on Myers for the idea it was an action for a debt. However, while Myers stressed the fact that it considered the action civil for purposes of procedure and appeal, it also recognized the cases of O'Haver and Miles that held that such actions were criminal in substance.
The Barrett Court also pointed out that the appellant could have easily obtained the jury trial he desired "by simply appealing the judgment of the general sessions court and demanding a jury pursuant to Article I, § 6 of the Tennessee Constitution." Id. However, I know of no authority that requires a person to go through the time and expense of an appeal in order to receive the benefit of her constitutional rights. Indeed, all judges take an oath to uphold the Constitutions and apply their requirements even-handedly at whatever station the judge operates.
The Middle Section of this Court recently in Town of Nolensville v. King, No. M1999-02512-COA-R3-CV, 2000 WL 1291984 (Tenn.Ct.App. Sept. 14, 2000), again held that a municipal court may impose a "penalty" of greater than $50.00 without a jury. The Court reiterated its reasoning in Barrett that the "fine" was in the nature of a civil debt and that the petitioner could obtain a jury on appeal. Barrett and Nolensville also may be distinguished from the present case in that they were dealing with zoning ordinances that do not mirror State criminal law in the way the driving ordinances do.
As aptly stated in Jackson v. State, the test must be the nature and the essence of the proceeding rather than its title. The constitutional right not to be fined more than $50.00 without a jury must not depend on the venue or title of the proceeding. If the fine cannot be said to serve a solely remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, it is punishment and is subject to the constitutional limitation of Article VI, Section 14. It is beyond comprehension to suggest that a defendant in the municipal setting should not be granted constitutional protections granted to defendants charged with the same or similar crimes under the State laws.
As noted, the United States Supreme Court has extended constitutional protections normally associated with criminal proceedings to those which have been considered civil, i.e., Waller. That Court, has also in Austin v. United States, extended the constitutional protection against excessive fines to certain civil penalties. 509 U.S. 602, 113 S.Ct. 2801 (1993). As the U.S. Supreme Court recognized, "the notion of punishment . . . cuts across the division between the civil and criminal law," 509 U.S. at 610, 113 S.Ct. at 2805, and that for the purposes of the excessive fines clause, "a civil sanction that cannot be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment." 509 U.S. at 621, 113 S.Ct. 2812.
The record demonstrates that over 90 city ordinances enacted by the City of Chattanooga are the same as, or substantially similar to, state statutes dealing with motor vehicles and traffic regulation. The Tennessee Code provides that a city may enact ordinances to enforce the rules of the road and that certain types of driving violations may be tried in the General Sessions Court of Hamilton County. T.C.A. § 55-10-107 and 55-10-308. Thus a person conceivably may end up in either a state court or city court for the commission of the same offense. Since 1993, there has been no assistant district attorney or investigator assigned to the City Court of Chattanooga. Instead, the police officers are left with the complete discretion to either cite a person to City Court or to have them arrested and sent to the Hamilton County jail for the same violation based upon the same facts.
This system raises several problems regarding equal protection. While people brought before the City Court may face a lesser penalty, they are also denied significant rights that they would be entitled to in State Court. For example, T.C.A. § 55-10-205 defines reckless driving and makes this offense a Class B misdemeanor, which carries with it a fine of up to $500.00 and imprisonment up to six months. Chattanooga City Code defines reckless driving the same way, and subjects a person to a fine of up to $50.00, and if T.C.A. § 6-54-306 were constitutional, a fine of up to $500.00, but with no imprisonment. As the Trial Judge in this case in his Order points out:
Prosecutorial discretion in this situation rests not with the District Attorney General, but with police officers and others, who may arrest with or without a warrant depending on the circumstances, and subsequently bring the offender to City Court for an ordinance violation or General Sessions Court for a state law violation.
Municipal ordinances that duplicate state statutes, that are A, B, or C misdemeanors are penal in nature and require the protection of an accused's constitutional rights.
It is beyond dispute that city ordinances that are identical or substantially similar to state laws are penal in nature, as are any ordinances that seek more than mere remedial relief. Proceedings in city court for the violation of any such ordinances, in my view must carry with it the same constitutional protections as provided in state court for a person convicted of the state offense, including the limitation on the amount a judge may fine the defendant. Accordingly, it is my opinion that City Code Section § 1-8 is unconstitutional as it allows the City Judge to impose a fine in excess of $50.00 without the benefit of a jury, in contravention of Article VI, Section 14 of the Tennessee Constitution.
The majority holds that T.C.A. §§ 6-54-306 and 6-54-308 do not violate equal protection as there is a rational basis for this classification. I agree, but to the extent the City Court is imposing fines of greater than $50.00 in a punitive manner and not solely for remedial purposes, there is an unconstitutional application. The majority finds a rational basis for the delegation of authority to enforce certain driving offenses. I agree there is a rational basis for this delegation. However, as stated, such delegation is unconstitutionally applied when a person charged under a municipal ordinance is denied the protections that would be granted to one charged under the state statute. The arrangement in the City Court is contrary to the stated purposes of the Tennessee Criminal Sentencing Reform Act of 1989, which states:
(1) Every defendant shall be punished by the imposition of a sentence justly deserved in relation to the seriousness of the offense.
(2) This chapter is to assure fair and consistent treatment of all defendants by eliminating unjustified disparity in sentencing and providing a fair sense of predictability of the criminal law and its sanctions.
The majority's second argument, finds that because there is no "policy and practice" of citing all traffic violations to City Court the statute does not impinge upon the authority of the Attorney General. The Tennessee Supreme Court addressed the issue of the extent of the power and discretion held by the district attorney general in Ramsey v. Town of Oliver Springs, 998 S.W.2d 207 (Tenn. 1999). The Court held that the practice in that case violated Article VI, § 5 of the Tennessee Constitution by impeding the constitutional and statutory obligations of the District Attorney General for Anderson County to discharge the duties of his office.
The District Attorney General and only the District Attorney General can make the decision whether to proceed with a prosecution for an offense committed within his or her district . . .
The District Attorney General is answerable to no superior and has virtually unbridled discretion in determining whether to prosecute and for what offense. No court may interfere with the discretion to prosecute, and in the formulation of this decision, he or she is answerable to no one . . .
Were it otherwise, prosecutorial discretion would rest not with the District Attorney General, but with police officers who may arrest with or without a warrant depending on the circumstances. This is, in fact, precisely the harm created by the policy and practice employed by the Town of Oliver Springs.
Ramsey, 998 S.W.2d at 209-210 (internal citations omitted).
The majority distinguishes Ramsey on the grounds that here, there is no "policy and practice" of citing all those who violate state traffic laws within the City's borders to the city court to be tried for violating a city ordinance in those cases where both a state law and city ordinance are implicated. However, any discretion vested with the police officers as to whether a person will be charged with violating a municipal ordinance or a state law infringes on the powers of the District Attorney General and subjects citizens to unequal treatment as explained above. Accordingly, while T.C.A. § 55-10-307 may be facially valid, it has been applied in an unconstitutional manner.
For all of these reasons, I dissent from the majority's holdings, and the state of the law on these issues cries out for the Supreme Court to clear up the confusion resulting from the language in Allen and Myers.
___________________________ HERSCHEL PICKENS FRANKS, J.