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S T A T E   O F   T E N N E S S E E OFFICE OF THE ATTORNEY GENERAL PO BOX 20207 NASHVILLE, TENNESSEE 37202May 17, 2007 Opinion No. 07-73 Prosecutorial discretion as to traffic offenses QUESTIONS

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1.  To what extent does a prosecutor have discretion to enter into a plea bargain with a personaccused of violating a state traffic statute by accepting a guilty plea to a “non-point” state offense?2.  To what extent does a prosecutor have discretion to enter into a plea bargain with a personaccused of violating a state traffic statute by accepting a guilty plea to a violation of a localordinance or regulation which is not subject to reporting or delivery of any forfeiture funds to thestate?3.  To what extent does a prosecutor have discretion to enter into a plea bargain with a personaccused of violating either an original, independent municipal ordinance, or a municipal ordinancebased on, similar to, or derived from a state statute by accepting a guilty plea to a violation of a localordinance or regulation which is not subject to reporting or delivery of any forfeiture funds to thestate? 4.  Does the response to the above change in regard to commercial drivers’ license operatorscharged while driving a commercial vehicle?5.  Does the response to the above change in regard to commercial drivers’ license operatorscharged while driving a non-commercial vehicle?OPINIONS1.   Pursuant to Tenn. Code Ann. § 8-7-103(1), district attorneys i
OPINIONS1.   Pursuant to Tenn. Code Ann. § 8-7-103(1), district attorneys in Tennessee are vested withgenerally unfettered discretion in the disposition of criminal cases involving violations of  “statecriminal statutes.”   As applied to questions 2 through 5, this includes any violations of state trafficlaws committed by commercial drivers, whether or not points are assessed for convictions, andwhether or not forfeitures are involved.2.  Regarding questions 2 and 3, district attorneys generally have no statutory authority toprosecute violations of local ordinances, since such ordinances are promulgated by independentmunicipalities and are civil, not criminal, in nature.  However, a statutory exception provides somePage 2Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (due process may be1implicated if a prosecutor vindictively increases a charge to a felony after a misdemeanant has prevailed on appeal);Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) (equal protection preventsselective prosecution on the basis of race, religion, the exercise of protected statutory and constitutional rights, or otherarbitrary classifications).limited authority for district attorneys to prosecute violations of county ordinances. ANALYSIS1.  A District Attorney General is an elected constitutional officer whose function is toprosecute state criminal offenses in his or her circuit or district. Ramsey v. Town of Oliver Springs,998 S.W.2d 207, 209 (Tenn.1999); Tenn. Const. art. VI, § 5; Tenn. Code Ann. § 8-7-103(1).  Theprosecutor's discretion to seek a warrant, presentment, information, or indictment is extremely broadand subject only to certain constitutional restraints.    City of Chattanooga v Davis, 54 S.W.3d 248,1278-279 (Tenn. 2001); Ramsey, 998 S.W.2d at 209.The prosecutor's discretion with regard to prosecution extends to the plea bargaining process.See Ramsey, 998 S.W.2d at 209; State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn.1994);Young v. United States, 481 U.S. 787, 807, 107 S.Ct. 2124, 2137, 95 L.Ed.2d 740 (1987). Pleabargaining is “entirely within the district attorney general's discretion,” State v. Head, 971 S.W.2d49, 51  (Tenn. Crim. App. 19

998), though the trial court is not obligated to accept any plea agreement.State v. Layman,  214 S.W.3d 442,  452 (Tenn. 2007).  A prosecutor may even dismiss an indictmentso long as the dismissal was not motivated by bad faith or by “considerations that could be fairlycharacterized as clearly contrary to manifest public interest.”  Id.  Moreover, a district attorney mayaccept a plea to a state criminal offense not considered a lesser-included offense of the originalcharge.  State v. Yoreck, 133 S.W.3d 606, 612 (Tenn. 2004). Therefore, within certain constitutional constraints, a district attorney has sole discretion asto the prosecution of violations of state criminal statutes, including all traffic offenses committedby commercial vehicle operators.  This office can find no distinction, as regards limitations on pleabargaining, between so-called “point” and “non-point” offenses. Though the decision to imposepoints for traffic offenses rests with the Department of Safety, points are imposed only uponconviction.  See Tenn. Code Ann. § 55-50-505(a)(1).  Likewise, offenses involving forfeituresarising from traffic offenses fall within the ambit of the Department of Safety, which may seekforfeiture even in the absence of a conviction, since forfeiture requires a lower burden of proof thana criminal conviction.  See Stuart v. State Department of Safety, 963 S.W.2d 28  (Tenn.1998).2.  However, it is the opinion of this office that district attorneys cannot, with one exception,engage in plea negotiations that result in convictions of violations of local or municipal ordinances,because there appears to be no authority that confers jurisdiction upon district attorneys to prosecutePage 3violations of such ordinances.  Tennessee case law holds that violations of ordinances are local civilactions, not state criminal prosecutions.  See City of Chattanooga v Davis, 54 S.W.3d 248, 259-260(Tenn. 2001); City of Chattanooga v. Myers,  787 S.W.2d 921, 922 (Tenn. 1990).  In  Myers, theCourt reiterated that:[c]ases involving violation of city ordinances are not criminal prosecutions; that theyare civil in nature having as their object the vindication of domestic regulations; thatthey are in the nature of actions for debt; and that on appeal to the Circuit Court theyare "triable de novo in the circuit court in precisely the same manner and under thesame procedural rules as those governing tort actions instituted in the GeneralSessions Courts, to include the right to a jury trial."City of Chattanooga v. Myers,  787 S.W.2d 921, 922 (Tenn. 1990).  As previously stated,  districtattorneys are vested with jurisdiction to [p]rosecute in the courts of the district all violations of the state criminal statutes andperform all prosecutorial functions attendant thereto, including prosecuting cases ina municipal court where the municipality provides sufficient personnel to the districtattorney general for that purpose . . . .Tenn. Code Ann. §  § 8-7-103(1).  This office has interpreted the “municipal court” provision asapplying to prosecution of state criminal offenses.  See 2001 Op. Tenn. Atty. Gen. 01-120 (opiningthat, under Tenn. Code Ann. § 8-7-103(1), district attorneys have no obligation to prosecuteviolations of state criminal statutes in municipal courts, absent funding from the municipality). Thisinterpretation of the “municipal court” provision is consistent with the sole exception containedwithin the district attorney statute, which provides some limited jurisdiction to prosecute violationsof county ordinances. That exception provides that: [d]istrict attorneys general with responsibility for prosecuting offenses in countieswith populations of less than five hundred thousand (500,000) according to the 1990federal census or any subsequent federal census and with a charter form ofgovernment pursuant to title 5, chapter 1, part 2, also are authorized to contract orenter into an agreement with such counties for the prosecution of violations of theordinances of such counties.Tenn. Code Ann. § 8-7-112. Applying the rules of statutory construction, this exception appears tootherwise preclude prosecution of all other local ordinances.  It is a long-recognized rule of statutoryconstruction that "the mention of one subject in a statute means the exclusion of other subjects thatare not mentioned.”  Layman,  214 S.W.3d at 453.  Additionally, a review of the Tennessee statutesregarding municipalities reveals no authority for municipalities to empower district attorneys toprosecute violations of municipal ordinances.  See generally Titles 6 & 7, Tennessee Code. Thus,absent the circumstances provided for in Tenn. Code Ann. § 8-7-112, there appears to be noPage 4authority providing jurisdiction for district attorneys to prosecute violations of local ordinances,including entering into plea bargains for violations of such ordinances. See also Tenn. Code Ann.§ 6-33-113 (establishing jurisdiction of city attorneys for prosecution of municipal ordinances); Cityof Chattanooga v Davis, 54 S.W.3d 248, 279-280 (Tenn. 2001) (noting in dicta that adoption ofmunicipal ordinances mirroring state motor vehicle laws was “probabl[y]” unconstitutional, sinceit usurped district attorney’s constitutional authority to prosecute violations of state law).ROBERT E. COOPER, JR.Attorney General and ReporterMICHAEL E. MOORESolicitor GeneralDAVID H. FINDLEYAssistant Attorney GeneralRequested by:Joe PittsState Representative109 War Memorial PlazaNashville, TN 37243-0167

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Title:Ordinance Violation and Appeal as a Civil Rather Than Criminal ProceedingSummary:MTAS was asked whether an appeal of an ordinance violation to circuit court by the defendant would be considered a civil or criminal matter.Original Author:Huffer, DennisCo-Author:Product Create Date:02/15/2005Last Reviewed on::03/23/2010Subject:Courts; Municipal ordinancesType:Legal Opinion
Legal Opinion: 
Reference Documents: 
Text of Document: February 15, 2005

Re: Ordinance violation and appeal as a civil rather than criminal proceeding
Dear City Attorney:
You asked my opinion on whether an appeal of an ordinance violation to circuit court by the defendant would be considered a civil or criminal matter. The defendant’s attorney in a case is uncomfortable with such “criminal prosecution” matters also being included in what is otherwise a civil matter involving an injunction to prohibit further ordinance violations. In my opinion the ordinance violation and appeal are civil matters. The maximum fine for an ordinance violation is fifty dollars ($50.00) when the fine is assessed for punitive, rather than remedial, purposes. Town of Nolensville v. King, 151 S.W.3d 427 (Tenn. 2004); City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001). The fine in your situation appears to be clearly punitive. Therefore the city should not try to enforce any penalty greater than the $50.00 fine in this case. You should note, however, that under the Nolensville case, the fine can be levied for each day of a violation.
T.C.A. § 27-5-101 and 102 provide for appeals from city courts to the circuit court. Section 16-18-307, enacted as part of the Municipal Court Reform Act of 2004, attempts to clarify this. Ordinance violations and their appeals are generally considered civil in nature. For example, inCity of Murfreesboro v. Bowles, 213 S.W.2d 35 (Tenn. 1948), the court upholds the appeal of a fine for an ordinance violation to circuit court, denominating it a civil proceeding as for debt. 
Tennessee has long recognized that ordinance violations generally are not criminal in nature. Even though ordinances use the word “misdemeanor” to describe a violation, that term does not mean the same as it does in state statutes. And the appeal is handled as the appeal of a civil matter. In O’Haver v. Montgomery, 111 S.W. 449 (Tenn. 1908), a case involving a requirement that abutting owners build sidewalks, the court states the distinction:
The word “misdemeanor,” as employed in statutes conferring power upon municipal corporations, is not wholly synonymous with the same term as used at common law, or in general statutes defining offenses against the state of a grade less than felony, but has a more restricted meaning, being limited to offenses against the smaller local government. 111 S.W. at 449.
The court goes on to explain that although courts sometimes characterize ordinance violations as partly criminal and partly civil in nature: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. 111 S.W. at 451.
Relative to the appeal of the ordinance violation, the court says:
[T]he 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. 111 S.W. at 451, 452.
Two (2) other cases that are often cited for the proposition that ordinance prosecutions are civil proceedings are Guidi v. City of Memphis, 263 S.W.2d 532 (Tenn. 1953) and City of Chattanooga v. Myers, 787 S.W.2d 921 (Tenn. 1990). Guidi involved a speed limit infraction that was an ordinance violation. The court agreed with the prevailing view that prosecutions for ordinance violations are civil and held that a warrant for the ordinance violation was considered only civil process. Myers involved an appeal from an ordinance violation. The court held that:
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 General Sessions Courts, to include the right to a jury trial. 787 S.W.2d at 922.
O’Dell v. City of Knoxville, 379 S.W.2d 756 (Tenn. 1963), is also cited for the proposition that ordinance violations are civil proceedings. It is the case that held that a fine for an ordinance violation could be more than $50.00 because it was really a civil penalty rather than an fine under Article VI, § 14 of the state constitution. O’Dell has been overruled on that point by Davis v. City of Chattanooga cited above, but it should still be good law on the point that ordinance violations are civil. The ruling in Davis does not require that ordinance violations be viewed as criminal sanctions. Rather, the court drew a distinction between punitive measures and remedial sanctions, with both viewed as civil fines. For punitive fines, a jury trial would be required for a fine greater than $50.00. For remedial fines, no jury trial would be required. But nowhere does the court even hint that from henceforth fines for ordinance violations would be considered criminal sanctions. Indeed, the court states:
Since our decision in City of Chattanooga v. Myers [citation omitted], the law now appears settled that proceedings for a municipal ordinance violation are civil in nature, at least in terms of technical application of proceedings and for pursuing avenues of appeal. 54 S.W.3d at 259.
Further, the court notes that the notion of punishment is not confined to criminal law, but also cuts across civil law.
The one area in which an ordinance violation is treated the same as a criminal violation in the true sense of the word “criminal” is in double jeopardy jurisprudence. And some over-expansive language in Metropolitan Government of Nashville and Davidson County v. Miles, 524 S.W.2d 656 (Tenn. 1975), might be confusing your defendant’s attorney. This case, which held that the government cannot appeal the acquittal of an ordinance violation because to do so would amount to double jeopardy under both the federal and state constitutions, contains this language:
[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 ... . 524 S.W.2d at 660.
In a later case that same year, however, the court repents of this language, saying it was overly broad. In Metropolitan Government of Nashville and Davidson County v. Allen, 529 S.W.2d 699 (Tenn. 1975), the court says:
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 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. 529 S.W.2d at 707.
The court goes on to clarify that “Procedurally, cases involving violation of city ordinances continue to be civil in nature. [citations omitted] They are in the nature of an action in debt. [citation omitted] They are not criminal prosecutions, but are merely penal actions having as their object the vindication of domestic regulations.” [citation omitted] 529 S.W.2d at 707.
Finally, relative to the appeal of an ordinance violation, the court foreshadows language fromMyers:
An appeal for the violation of an 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, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed.2d 435 (1970), and is supported by other cases cited in Miles. 529 S.W.2d at 707.
The Waller case held that a person convicted of the city ordinance violations of destruction of city property and breach of the peace could not later be tried by the state for grand larceny based upon the same facts that led to the ordinance convictions.
The conclusion appears to be that ordinance violations and appeals are treated the same as criminal matters only in the narrow area of double jeopardy. In every other respect, they are civil. Language in cases referring to them as criminal or quasi-criminal is, by the courts’ admission, merely by way of analogy or for want of any better comparison. The circuit court in your case should be able to require the defendant, if found guilty, to do the same things the municipal court could have required.
I hope this is helpful. If you have questions, please let me know.

Sincerely,

Dennis HufferLegal Consultant

The problems are:
1. In Tennessee lower courts do not listen too higher courts!

2. In Tennessee lawyers do not use the decisions to free citizens even for money

3. In Tennessee cities courts use district attorneys in all theirs court and steal funds from the state budget even when there boss above say they can not be there because city are civil and the city attorney should be there for the max $50.00 fine and all appeal go too circuit courts, but they do not that either and creates double jeopardies

4. In Tennessee all courts over rule the federal code that requirer that a U.S. Flag be there and fling in front of the audience (the judge) and behind the speaker,(the citizens) instead they fly a fate flag with the gold and call it the U.S. Flag and fly it behind the audience and in front of the speaker.
If theses judges can not understand the U.S. Code or the U.S. Flag code how can they understand any laws

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