the second politic ballard "You Are A Dead letter" BY BASIL MARCEAUX.COM
Two articals on this page first Can The Sheriff Come In A City courts In Tennessee That Only Have Civil Jurisdiction? No!==Second Is Driving On The Roads Of Th U.S. A Right Or A Privileged ?
itle:Venue for Municipal Ordinance Violations and Sheriff Enforcing Municipal -- OrdinancesSummary:MTAS was asked about the venue for municipal ordinance violations andwhether the sheriff may
enforce municipal ordinances.Original Author:Hemsley, SidCo-Author:Product Create Date:09/28/2001Last Reviewed on::04/19/2010Subject:County government; Courts; Courts--General sessions;
Courts--Municipal; Intergovernmental agreements; Intergovernmental relations; Municipal ordinancesType:Legal OpinionLegal Opinion:
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: September 28, 2001
RE: Venue for Municipal Ordinance Violations; Sheriff Enforcing Municipal Ordinances
You have two questions:
1. Where a city’s police department provides police services for another city, including the writing of city ordinance violations, can the city ordinance violations be tried in the city court of the city that provides the police services?
In my opinion, the answer is no. The proper venue for municipal ordinance violation cases is the municipal court in the municipality in which the offense occurred. Venue is probably jurisdictional; that is, unless the case is heard in the proper venue, the court has no jurisdiction.
2. Can the sheriff enforce city ordinance violations, and those violations be tried in the city court rather than in the county sessions court.
In my opinion, the answer is no.
Venue for Municipal Ordinance Violations
There is a civil venue statute at Tennessee Code Annotated, § 20-4-101 et seq. But even the recent consolidated Tennessee Supreme Court cases of City of Chattanooga v. Davis and Barrett v. Metropolitan Government of Nashville and Davidson County, decided June 13, 2001, failed to put municipal ordinance violations in the civil or criminal columns. Said the Court:
Since our decision in City of Chattanooga v. Myers, 787 S.W.2d 921 (Tenn. 1990), the law now appears settled that proceedings for a municipal ordinance violation are civil in nature, at least in terms of technical application of procedure and for pursuing avenues of appeal. Outside technical procedure and appeal, however, substantial conflict may still be found as to the characterization of the substantive nature of the proceedings.
Indeed, depending upon the precise issue before the particular court, proceedings for municipal ordinance violations have been described as “civil in character,” City of Memphis v. Smythe, 104 Tenn. 702, 703, 58 S.W. 215, 215 (1900); as “partak[ing] more or less of a civil wrong,” Hill v. State ex rel Phillips, 215 Tenn. 503, 507, 392 S.W.2d 950, 952 (1965); as “partially criminal,” O’Haver v. Montgomery, 120 Tenn. 448, 460, 111 S.W. 449, 452 (1908); and as “criminal rather than civil in substance,” Metropolitan Gov’t v. Miles, 524 S.W.2d 656, 660 (Tenn. 1975).
The Court went on to conclude that with respect to the application of Article VI, §14, substance was more important than form and that the purpose and amount of the “civil penalty” imposed by municipal courts could be criminally substantive. But the case (and none other that I can find) did not answer the question of whether municipal ordinance violation venue is substantively civil or substantively criminal.
But venue is probably procedurally civil because appeals of municipal ordinance cases are to the circuit, rather than to the criminal, court. In addition, under Article I, § 9, of the Tennessee Constitution, criminal defendants are entitled to a trial by jury “of the County in which the crime shall have been committed.” Jury trials are not to be had in municipal ordinance violation cases heard in municipal courts. Finally, it has been held that a municipal ordinance violation case is an action on a debt, the debt being the penalty for violation of the ordinance. Actions on debt are civil in nature. Under that theory, the venue would be the same venue as an action on debt.
Tennessee Code Annotated, § 20-4-101 et seq., covers civil venue. That statute is based on the system of county courts and probably never contemplated a municipal ordinance violation. But an action on debt under that statute appears to be what is called a “transitory action.” As ill-designed for municipal ordinance violations as that statute is, it does contain language that probably answers the venue question: “In all civil actions of a transitory nature, unless the venue is otherwise provided for, the action may be brought in the county where the cause of action arose or in the county where the defendant resides or is found.” [Emphasis is mine.]
In all the charters that I have checked for the purpose of answering this question, the municipal court judge has jurisdiction over municipal ordinance violations occurring within the city. Such
provisions appear to me to limit the hearing of municipal ordinance violation cases in the city in which they occurred.
Sheriff Enforcing Municipal Ordinances
I seem to recall that in the past one or two cities entered into a contract with the sheriff for the latter to enforce the city’s municipal ordinances, and the ordinance violations were tried in
the city court rather than in the county sessions court. I have been unable to recall the names of those cities. However, it does not appear to me that the sheriff has the authority to enter into
such an agreement.
When we orally discussed this question, I thought that the impediment to such an agreement might be the limitation on the authority of the sheriff. It now appears to me that there is a similar limitation on cities.
Tennessee Code Annotated, §§ 8-8-201(34), 16-15-204, and 12-9-104, authorize the interlocal agreements between the county sheriff, the county sessions court, and cities for the sheriff to enforce municipal ordinances, and for the sessions court to try ordinance violation cases. The Interlocal Government Cooperation Act at Tennessee Code Annotated, § 12-9-104, authorizes a broad range of interlocal agreements, but it also specifically addresses the interlocal agreements between the sheriff, the sessions judge and the city:
Notwithstanding any prevision of the law to the contrary, any municipality may enter into an agreement with the sheriff, court of general sessions, and the governing body of any county in which it is located to provide for the enforcement of municipality’s ordinances according to the provisions of §§ 8-8-201(34) and 16-15-501...
That language appears to authorize such agreements, but also to limit them to the configuration contemplated in those statutes. In addition, the Interlocal Government Cooperation Act permits
interlocal agreements to cooperativley do things that both parties are authorized under the law to do. The same thing is true of contracts between local governments authorized by the Interlocal
Government Cooperation Act. Tennessee Code Annotated, § 12-9-108, provides that:
Any one or more public agencies may contract with any one (1) or more public agencies to perform any governmental service, activity or undertaking which each public agency entering into the contract is authorized by law to perform...
A city is obviously authorized by law to enforce municipal ordinances, but a sheriff is not authorized by law to enforce municipal ordinances except in the manner prescribed by Tennessee Code Annotated, §§ 8-8-201(34), 16-15-501 and 12-9-104. Likewise, I find nothing in any statute, express or implied, that indicates a city has the authority to enter into such a contract with the sheriff. Most municipal charters give cities the general power to contract, but where several statutes have expressly stated how two governments can enter into an agreement, as do Tennessee Code Annotated, §§ 8-8-201(34), 16-15-204, and 12-9-104, the general power to contract is inadequate to support an agreement that does not conform to those statutes.
Is Driving On The Roads Of Th U.S. A Right Or A Privileged ? Answer Is A Right
<p>Is driving down the highway a right, or a privilege?IN: AUTO INSURANCE CLAIMS ANSWERS11May2010<br> <br> Legislators, police officers, and court officials are becoming aware that there are court decisions that disprove the belief that driving is a privilege and therefore requires government approval in the form of a license. Presented here are some of these cases:CASE #1: “The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived.”Chicago Motor Coach v. Chicago, 169 NE 221.CASE #2: “</p><p> </p><p>The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common law right which he has under the right to life, liberty, and the pursuit of happiness.” Thompson v. Smith, 154 SE 579.It could not be stated more directly or conclusively that citizens of the states have a common law right to travel, without approval or restriction (license), and that this right is protected under the U.S Constitution.CASE #3: “The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” Kent v. Dulles, 357 US 116, 125.CASE #4: “</p><p> </p><p>The right to travel is a well-established common right that does not owe its existence to the federal government. It is recognized by the courts as a natural right.”Schactman v. Dulles 96 App DC 287, 225 F2d 938, at 941.As hard as it is for those of us in law enforcement to believe, there is no room for speculation in these court decisions. American citizens do indeed have the inalienable right to use the roadways unrestricted in any manner as long as they are not damaging or violating property or rights of others.Government — in requiring the people to obtain drivers licenses, and accepting vehicle inspections and DUI/DWI roadblocks without question — is restricting, and therefore violating, the people’s common law right to travel.Is this a new legal interpretation on this subject?Apparently not. This means that the beliefs and opinions our state legislators, the courts, and those in law enforcement have acted upon for years have been in error.</p><p> </p><p>Researchers armed with actual facts state that case law is overwhelming in determining that to restrict the movement of the individual in the free exercise of his right to travel is a serious breach of those freedoms secured by the U.S. Constitution and most state constitutions.That means it is unlawful.The revelation that the American citizen has always had the inalienable right to travel raises profound questions for those who are involved in making and enforcing state laws.The first of such questions may very well be this: If the states have been enforcing laws that are unconstitutional on their face, it would seem that there must be some way that a state can legally put restrictions — such as licensing requirements, mandatory insurance, vehicle registration, vehicle inspections to name just a few — on a citizen’s constitutionally protected rights.</p><p> </p><p>Is that so?For the answer, let us look, once again, to the U.S. courts for a determination of this very issue.In Hertado v. California, 110 US 516, the U.S Supreme Court states very plainly: “The state cannot diminish rights of the people.”And in Bennett v. Boggs, 1 Baldw 60, “Statutes that violate the plain and obvious principles of common right and common reason are null and void.”Would we not say that these judicial decisions are straight to the point– that there is no lawful method for government to put restrictions or limitations on rights belonging to the people?Other cases are even more straight forward:“The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.”Davis v. Wechsler, 263 US 22, at 24.“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”Miranda v. Arizona, 384 US 436, 491.“</p><p> </p><p>The claim and exercise of a constitutional right cannot be converted into a crime.”Miller v. US, 230 F 486, at 489.“There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights.” Sherer v. Cullen, 481 F 946.We could go on, quoting court decision after court decision; however, the Constitution itself answers our question – Can a government legally put restrictions on the rights of the American people at anytime, for any reason?The answer is found in Article Six of the U.S. Constitution:“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;…shall be the supreme Law of the Lgo go cant read</p>