                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                              August 9, 2000 Session

                    CITY OF CHATTANOOGA v. KEVIN DAVIS

                 Direct Appeal from the Criminal Court for Hamilton County
                         No.225103 Hon. Douglas A. Meyer, Judge

                                       FILED OCTOBER 31, 2000

                                   No. 2000-00664-COA-R3-CV



Tenn. R. App. P.3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part,
Reversed in Part; Case Remanded.

HERSCHEL PICKENS FRANKS , J., dissenting.


                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


                                                 -2-
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


                                                 -3-
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


                                                 -4-
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


                                                  -5-
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 . . .

524 S.W.2d at 660.

               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.



                                                 -6-
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


                                                  -7-
               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


                                                 -8-
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 Barrett1 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.

                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.,


       1
         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.

                                                  -9-
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.


                                                  -10-
                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.

T.C.A. § 40-35-102.

                 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


                                                  -11-
               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.




                                                 -12-
