                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                            February 10, 2009 Session

              CITY OF KNOXVILLE v. JOSHUA DAVID KIMSEY

                   Direct Appeal from the Circuit Court for Knox County
                  No. 3-83-07     Hon. Wheeler Rosenbalm, Circuit Judge



                   No. E2008-00850-COA-R3-CV - FILED MAY 13, 2009



Defendant has appealed from a traffic court violation conviction based on documentary evidence
created by a camera at a street intersection. The Trial Court affirmed the City Court conviction and
defendant has appealed to this Court raising several issues. Upon review of the record and
consideration of the evidence, we affirm the Judgment of the Trial Court.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO ,
JR., J., and J. STEVEN STAFFORD , J., joined.


David B. Hamilton and Christopher Rowe, Knoxville, Tennessee, for appellant, Joshua David
Kimsey.

Angela Bolton Rauber and Ronald E. Mills, Knoxville, Tennessee, for appellee, the City of
Knoxville.


                                            OPINION


               In this action, defendant was issued a traffic citation resulting from a camera
recording at a street intersection. The Municipal Court convicted defendant of a traffic violation
which he appealed to the Circuit Court. In Circuit Court, the City filed a Motion for an Order
Deeming Matters Admitted, stating that they served defendant with Requests for Admission on July
18, 2007, and had received no response. Defendant filed a Motion for Relief of Bond, a Motion to
Dismiss for Lack of Jurisdiction, and a Motion for Determination of Rules Applicable to Appeal.
               The Trial Court entered an Order granting the Motion for Order Deeming Matters
Admitted, finding that the Requests for Admissions had been deemed admitted for the purposes of
the issues before the Court. Defendant then filed other motions including a Motion to Transfer
Appeal to Criminal Division, a Motion to Set Aside Order, and other Motions to Dismiss.

                 The Court then entered an Order and Final Judgment, finding that the City had
sufficient authority to enact §17-210(c) of the Code of the City of Knoxville, and that the ordinance
was a civil or quasi-civil matter, and enforcing the ordinance was a valid exercise of the City’s police
powers. Further, that the ordinance did not violate the United States or Tennessee Constitutions, and
that defendant violated §17-210(c) and was liable for the $50.00 fine.

               Defendant has appealed and raises these issues:

               1.      Whether the Trial Court erred by denying defendant’s constitutional
                       protections of due process and privilege against self-incrimination?

               2.      Whether the Trial Court erred by upholding a municipal ordinance that
                       substantially alters a corresponding state criminal statute?

               3.      Whether the Trial Court erred by upholding City of Knoxville authority to
                       delegate police power to a non-governmental third party?

                Defendant argues that ordinances such as the one at issue are penal in nature, and that
all constitutional guarantees under the United States and Tennessee Constitutions relating to criminal
prosecutions should apply. He argues that the Court erred in refusing to hold the Rules of Criminal
Procedure applicable rather than the Rules of Civil Procedure, and that the Court erred in refusing
to transfer the case to the criminal division. Further, that the mailed notice denied defendant due
process.

                 The Supreme Court and this Court have previously held that actions based on a
violation of a city ordinance are civil in nature for the purposes of appeal/procedure. Thus, the Trial
Court properly denied defendant’s motion seeking to have the Rules of Criminal Procedure apply
to this action. City of Chattanooga v. Myers, 787 S.W.2d 921 (Tenn. 1980); City of Knoxville v.
Brown, 2008 WL 2925370 (Tenn. Ct. App. July 30, 2008).

                Defendant further argues that application of Tenn. R. Civ. P. 36 denied him
constitutional protections, because the Court found that he admitted certain matters by failing to
respond to the Requests for Admission that were served upon him. The Brown court recognized that
constitutional protections could attach to actions such as this. However, defendant’s argument fails
to recognize that it has been long-established that he could have asserted the privilege against self-
incrimination upon proper grounds, in a civil case. Richardson v. Tenn. Bd. of Dentistry, 913
S.W.2d 446 (Tenn. 1995). Defendant failed to do this, either in the hearing held in City Court
(where the defendant testified, according to his brief) or by responding to the Requests for


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Admission and asserting that privilege. Defendant waived the privilege, rather than having it denied
by the Court. State Dep’t of Children’s Services v. M.P., 173 S.W.3d 794 (Tenn. Ct. App. 2005).

                Defendant also argues the Trial Court should have transferred this action to the
criminal division, but as explained, these actions are considered civil in nature, and defendant’s
precise issues regarding due process were addressed by this Court in Brown. We find there was no
violation. The record does not show that defendant’s constitutional rights were infringed, and the
issues raised are without merit.

               Next, defendant argues the Trial Court erred by upholding the Municipal ordinance,
which he asserts substantially alters a corresponding state statute. He also argues that the ordinance
improperly delegates police power to a non-governmental third party. These issues were already
determined and are not applicable here, as explained in Brown.

                 We made clear in Brown that City Code §17-210 was not in conflict with any state
statute, as the issue was addressed in depth in that opinion. We stated that, “Even though
constitutional protections are triggered by the fine imposed by City Code § 17-210, we nevertheless
conclude that the proceeding is civil in nature and, in accordance with the statutes quoted above, well
within the police power of the City of Knoxville. Therefore, we reject defendant's argument that
City Code § 17-210 is ultra vires and affirm the Trial Court's judgment on this issue.” Brown, 2008
WL 2925370. The Brown Court addressed and disposed of all of defendant’s arguments regarding
the validity of the ordinance.

               Defendant’s remaining argument is that the City did not have the authority to delegate
police power to a non-governmental third party, by sharing city revenue with Redflex, delegating
core government functions regarding issuance of citations, etc. A review of the contract between
the City and Redflex, however, demonstrates that Redflex merely gathers the photos and data and
then a police officer reviews the same to determine whether a citation should be issued. The City
has plenary power to decide who to cite and whether those actions take place. We conclude that
Redflex’s only duty is to gather the photos and data via the cameras, and this does not constitute any
exercise of police powers. The agreement does not run afoul of any of the Attorney General
Opinions cited. We find this issue as well to be without merit.

               The Judgment of the Trial Court is affirmed, and the cause remanded, with the
cost of the appeal assessed to Joshua David Kimsey.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.




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