Legal Challenge in Hamilton County Targets Court Abuses in Fighting Criminal Charges on Appeal

By David Tulis / Noogaradio 1240 AM 92.7 FM

Gubernatorial candidate and free-range motorist Basil Marceaux will appear before a Hamilton County Circuit Court next week to argue in one of a series of criminal cases whose defense is sending shudders through the legal system.

Mr. Marceaux, 64, of Soddy-Daisy, has been in legal wrangling with the state’s judicial industrial complex for 16 years over the constitutional right to travel and the effects of policing on liberty.

The main argument before Judge Neil Thomas on May 1 is that courts, lawyers, and city and county governments are ignoring a 2001 Tennessee Supreme Court case that quashes cities’ authority to punish people who are criminally accused.

Mr. Marceaux had been given two weeks by Judge Thomas — and an extension — to propose how the jurist is to hear Mr. Marceaux’ appeal from Soddy-Daisy City Court under Judge Marty Lasley.

The longtime legal activist insists that the Tennessee Supreme Court says that Tennessee cities are civil only, and do not have authority to exercise criminal jurisdiction and punishment. According to two cases from the high court, city jurisdiction is civil. Thus criminal cases cannot be heard in non-juried non-record courts such as city courts and sessions courts if the crime is alleged to have occurred within a city, Mr. Marceaux says.

Mr. Marceaux under the constitution and statute has a right to a trial de novo out of city or sessions court, which means a brand new trial. According to Mr. Marceaux, this trial is not an appeal, but a new trial that must meet requirements set forth by numerous judges in several orders from the state civil and criminal courts of appeal.

One problem created by the Marceaux argument is that the Tennessee Supreme Court’s two rulings require a jurist in a trial de novo to exercise two jurisdictions, sessions and circuit, according to a series of one-page orders from mid-level appeals courts. But Judge Thomas apparently has only one cloak of authority, that of circuit court. Hence his oral directive to Mr. Marceaux to propose how a “de novo” court would operate.

Appellant’s odd quest

The verbal order may have partly to humor Mr. Marceaux, but no doubt Judge Thomas realizes that powerful legal incongruities are in view in Mr. Marceaux’ claim. In a show of civic spirit, Mr. Marceaux has spent several weeks trying to arrange the creation of a new court to hear his case, but every avenue appears a deadend.

Mr. Marceaux said he spoke with Hamilton County Clerk Bill Knowles about creation of the court, but Mr. Knowles says, “I’m not sure I know whom you’re talking about. I’m not familiar with that.”

Mr. Marceaux says he spoke with officials from the County Commission about renting the commission chamber for the operation of the court, which Mr. Marceaux says requires seven judges.

“The mayor did have a conversation with Mr. Marceaux,” says Mike Dunn, spokesman for Mayor Jim Coppinger, “and told him that it was a legal matter and that he would need to take it to the court.”

Circuit Court Clerk Larry Henry says that Mr. Marceaux has talked several times with staffers, but he says he does not grasp what Mr. Marceaux is proposing. Creating a new court would have to be done by the Tennessee General Assembly, Mr. Henry says, deferring the matter to the circuit court judges.

“To be quite honest with you,” Mr. Henry says, “he has talked to several of our judges about it. He’s brought it up here to me with a Tennessee Code Annotated on jurisdiction, and to be quite honest with you, I don’t really understand what he’s talking about. But I can tell you this. As far as the creation of a court would go, that would not be my decision to do that. That would be up the legislature to establish that court. I couldn’t do that.”

No unhappy defendant during his three years as clerk has asked for a new trial, Mr. Henry’s says.

In seeking a court to hear his case, Mr. Marceaux also spoke with county attorney Rheubin Taylor, whom Mr. Marceaux said has not yet gotten back to him. Efforts to speak with Judge Thomas about trials de novo from criminal proceedings heard from below were refused. Circuit judge Marie Williams said she hears trials de novo all the time — but only in civil cases. County attorney Taylor could not be reached for comment despite repeated efforts.

Other circuit judges did not grant an interview about city court and session court authority to hear criminal matters.

Knock-out question

Mr. Marceaux’ struggle with the system to maintain his constitutional liberties has taken many court cases and at least 20 arrests, but he says today that he is asking the right question — and getting an astounding answer.

The question has tied the judicial system in knots, as evidenced in numerous orders given to him by 27 named appellate court judges (Norma McGee Ogle, Joseph M. Tipton, James Curwood Witt, Charles D. Susano Jr., D. Michael Swiney, John W. McClarty of Chattanooga, et al).

Courts traditionally do not volunteer answers if they are not asked the question. By design, courts will let evils operate for decades if they are not asked directly about them. Routinely, if a defendant asks the wrong question, he will get the right answer to the wrong question. But if he asks the right question, he will get the right answer and obtain relief, just as Mr. Davis did in the 2001 case with the help of local attorney Jerry Summers.

In at least some of 15 cases, Mr. Marceaux asked a simple yet unsettling question, “Can the criminal court hear my criminal case if it originates within city limits?”

The short answer of the courts seems to be: No.

Cities lack criminal authority

The problem, as Mr. Marceaux indignantly puts it, “They put me in jail for a city ordinance and held me there since I gave them bond money, and they did at that at gunpoint, overruling the Supreme Court. They attempted to punish me and take my substance, which is not allowed in Davis.”

The man behind the Davis case is Kevin Davis, whose appeal prompted a 2001 decision penned by Justice Mickey Barker of Chattanooga. The lengthy opinion in City of Chattanooga v. Kevin Davis, 54 S.W.3d 248, 259 (Tenn. 2001), is a civics lesson of first rank. It hints strongly at unfinished judicial business, particularly in the area of district attorneys’ power to prosecute in light of cities’ enforcing state law.

The ruling effectively says city governments and their corporation courts, or city courts, and county government sessions courts that enforce state law for offenses within a city limit, cannot convict a citizen of a crime or punish him.

Mr. Marceaux says many elements of the judicial system among cities and counties across the state are ignoring Chattanooga vs. Davis and a ruling a decade earlier, City of Chattanooga v. Myers, 787 S.W.2d 921 (Tenn. 1990).

Attorney Summers is skeptical about Mr. Marceaux’ claims. “I compliment Mr. Marceaux for his tenacity, but from what little I understand about it is that his problem is that he pled guilty in one of the cases from Soddy-Daisy, and that the city of Soddy-Daisy is dismissing the other. Therefore, he is being denied an appeal in the appellate court on these cases that would not have jurisdiction for those reasons, not because they’re not willing to hear the case, it’s just not there in the proper form. And that’s what his problem is.”

Only the legislature can “create a trial de novo court,” Mr. Summers says, and the right of trial de novo exists within the existing court system if conditions are met.

Mr. Marceaux is miffed at Mr. Summers, who after the Davis victory against cities’ exercise of criminal jurisdiction sat over Mr. Marceaux in judgment in a criminal matter as a Soddy-Daisy city court judge.

Mr. Marceaux, who won 3,500 primary votes in a race for governor in 2010, says that for 150 years the Tennessee legal system has abused the citizenry and is unwilling to make the changes ordered by the justices in Davis because it would have to admit past sins. To reform would reduce the incomes of thousands of attorneys statewide, affect police families dependent on department paychecks for the breadwinner in blue and dry up cash flow to courts and parasitic industries such as probation and corrections.

“This question,” says the married self-employed carpenter, historian and entrepreneur, “when I ask the Tennessee criminal court of appeals the question, can they handle my case, they could answer anything. But they didn’t. They give me, ‘cities are civil and [the case] must go to circuit court.’ But on the other hand, they say they don’t have jurisdiction to stop it. They allowed 25 years of false arrests, and the bar association making tons of money on those false arrests. The cities’ making tons of money on those false arrests. And they do it all at gunpoint.”

The matter of jurisdiction is carefully considered in Davis and Myers and, posing it anew, Mr. Marceaux is using appellate court orders to push the system backward in time, as it were, toward a more constitutional form of government in which citizens’ rights are protected in every legal venue and courts of convenience are not allowed to swallow up government that is supposed to put the people first.

City and sessions courts are “inferior” legally because they are creatures of cities and counties, and the constitution doesn’t apply in these courts. Judges try cases without a jury, and no record is kept.

Denying Marceaux relief?

Mr. Marceaux seems flaky and disconnected, even wild, as when he brings up Lincoln’s emancipation proclamation as an adjunct to his claims. He has been held up in the press and Stephen Colbert comedy TV as buffoon and clown, his speech slurred not because he is drunk, but from a from a shortage of teeth, he explains. He has only two. But judges cannot ignore him.

Criminal appeals court judges in signed orders say they have no authority in Marceaux criminal case appeals because the offenses are civil, arising from city and sessions courts. And civil courts of appeal judges say they don’t have authority, either, because the matter is criminal.

In an order in one state traffic law offense in Bradley County, for example, the judges say an appeal of “city court judgments finding him in violation of municipal ordinances of Cleveland [were] filed erroneously” with the criminal court of appeals. “It is settled law in this state ‘that proceedings for a municipal ordinance violation are civil in nature, at least in terms of the technical application of procedure for pursuing avenues of appeal’” (Aug. 2, 2010). These words are from the criminal court of appeals. A one-paragraph civil court of appeals order in the case says that body “lacks jurisdiction to consider the petition” (Nov. 29, 2011).

“What they’re saying is, I don’t have an avenue of appeal, which is unconstitutional,” Mr. Marceaux says. “These crimes are still on my record. And what about people behind me — other ordinance violators who should never be criminally charged for acts done in any city limits in the state?”

He added, “I represent everybody in the state in all my cases,” even though he is not a representative in a class action.

A reading of statute strongly suggests Mr. Marceaux and the Davis case have a point about criminal cases’ not belonging in inferior civil courts. Provisions about appealing cases out of sessions or city courts indicate only civil matters belong there.

“No civil case, originating in a general sessions court and carried to a higher court *** ” shall be blocked by reason of “any informality whatsoever,” and on appeal “shall be de novo” (TCA 16-15-72), “All jury cases in the county court shall be tried de novo in the circuit court” (TCA 27-4-108), and “Any person dissatisfied with the judgment of [an] *** officer of a municipality charged with the conduct of trials, in a civil action, may *** appeal to the next term of circuit court” (TCA 27-5-101). Jurisdiction of municipal courts is for “violation of the laws and ordinances of the municipality” (TCA 16-18-302).

Appeal would end police state

Without what were once called “justice of the peace” venues, informal, hasty, private, the police state would have no legal place into which it officers in blue could pour its rivers of defendants. Law enforcement would have to be sharply curtailed if these city court and sessions civil venues did not exist to relieve the system of the necessity to indict to criminal court every person accused of a crime.

If Mr. Marceaux can get a ruling to further develop the Davis opinion — or if he could get the legal system simply to obey Davis, as he sees it — one result would be the disbanding of city and town police departments — a “civilizing” of their operations to civil cases only. Criminal cases would enter criminal jurisdiction only via indictment or information, not citation to city or sessions courts.

‘A state of anarchy’

Mr. Marceaux says the continuing operation of police departments is brazenly contemptuous of judicial authority in the Tennessee Supreme Court.

Police officers are the equivalent of process servers or citizens on patrol, and no more, he says. They do not have authority to arrest, tase, shoot, manhandle, charge or jail people for crimes listed in the Tennessee code, whether it be assault, robbery or running a stop sign. Within city limits, they lack state statute enforcement power, Mr. Marceaux argues.

In Hamilton County, the only areas in which state law controls are those patrolled by the sheriff, Jim Hammond. Same with Tennessee’s 94 other counties. Sheriffs don’t have authority to patrol within a city limits, and cannot do so, even by agreement, Mr. Marceaux insists.

As Judge Barker and the Davis majority explain, the prohibition of cities’ punishing crimes lies in the constitution’s 50 dollar fine rule, a unique provision among state constitutions. The rule says a city can impose no fine beyond 50 dollars apart from a jury trial, and has no authority to punish. These points are laid out in Chattanooga v. Myers.

“There is no law in cities,” Mr. Marceaux declares. They are legally “in a state of anarchy,” with no law enforceable, he says.

Financial incentive for stakeholders

The $50 fine rule is today a harsh squeeze on financially strapped local governments, choked by the declining buying power of the paper U.S. dollar. Every level of government in Tennessee disobeys Article 1, Section 10, of the U.S. constitution mandating gold and silver as the money of account.

It takes about $625 to buy 50 dollars (in honest silver). The paper dollar’s debasement has made sessions courts impotent in revenue generation, so what lower courts and the state lose in buying power of depreciating paper they make up in volume of offenses prosecuted.

City and sessions courts courts give the state the luxury of not having to run constitutional and limited government, but commercial government, with people fed into the legal system by law enforcement agencies.

Police agencies are a big business: Nashville has 1,300 officers, Memphis about 2,100. With roughly 500 police officers, Chattanooga supports a court industry that absorbs an ever-growing portion of the population but without the fuss of trials by jury and the burden of having to respect constitutionally protected rights. The inferior courts are plea bargain mills where rights are signed away and, though caseloads are huge, trials obedient to the constitution are rare. Ninety-four percent of all criminal convictions are the result of a plea bargain, as is being pointed out in a state commission’s April report on indigent representation.


David Tulis is editor of and reports on local economy and free markets at Noogaradio 1240 AM 92.7 FM.

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