State v. Gray ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 2000 Session
STATE OF TENNESSEE v. JOSEPH D. GRAY
Appeal from the General Sessions Court for Davidson County
No. 2767 Gale B. Robinson, Judge
No. M1998-00256-COA-R3-CV - Filed October 5, 2000
The sole remaining question in this appeal is whether in October of 1998 the General Sessions Court
of Davidson County had jurisdiction over a contempt warrant issued for violating the Davidson
County Circuit Court’s order of protection. We affirm the General Sessions Court’s exercise of
jurisdiction.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Affirmed and Remanded
BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.
John E. Herbison, Nashville, Tennessee, for the appellant, Joseph D. Gray.
Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; and
Sean Allen, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I.
On July 11, 1997, the Second Circuit Court of Davidson County issued an order of protection
prohibiting Joseph Darryl Gray from coming about, telephoning, or stalking the petitioner, Loretta
Sue Gray. On July 2, 1998 and August 3, 1998, the General Sessions Court of Davidson County
issued warrants for Mr. Gray’s arrest on a charge of contempt of court for two separate violations
of the Second Circuit’s order. Mr. Gray appeared and challenged the jurisdiction of the court, but
he entered a best-interest guilty plea, reserving the jurisdictional issue for appeal.
Mr. Gray appealed to the Court of Criminal Appeals, but that court, in a written opinion,
found that this court had jurisdiction of the appeal pursuant to Tenn. Code Ann. § 16-4-
108(b)(1994). See State v. Joseph D. Gray, No. M1998-00256-CCA-R3-CD (Tenn. Crim. App. at
Nashville, Dec. 20, 1999). Consequently that court transferred the cause to this court. See Tenn. R.
App. P. 17.
II.
CONTEMPT
The power to punish for contempt is inherent in the courts of justice. Thigpen v. Thigpen,
874 S.W.2d 51 (Tenn. Ct. App. 1993). “But this power, inherent and vital as it is, is not unlimited;
it can be exercised only within the fixed rules of law. Our statutes are declaratory of these rules.”
Loy v. Loy, 222 S.W.2d 873 at 877 (Tenn. Ct. App. 1949).
The general statutes are found in Chapter 9 of Title 29 of the Code. Tenn. Code Ann. § 29-9-
102 defines the scope of the contempt power; it includes the power to punish the contemnor for the
willful disobedience of any lawful order, rule, decree, or command of the courts. Tenn. Code Ann.
§ 29-9-102(3).1
The general contempt statutes do not, however, deal with the question of whether a court may
punish contempts of another court’s order. The answer to that question is to be found in our court
decisions, and generally, the power to punish for contempt is reserved to the court against which the
contempt is committed, i.e. the court whose order is disobeyed. Chaffin v. Robinson, 213 S.W.2d
32 (Tenn. 1948). “One tribunal may not punish for contempt of another.” Raht v. Southern Railway
Company, 387 S.W.2d 781 (Tenn. 1965). See also Churchwell v. Callens, 252 S.W.2d 131 (Tenn.
Ct. App. 1952); 17 Am. Jur. 2d Contempt § 41. A court may, however, punish a contempt
committed against another division of the same court, Mayhew v. Mayhew, 376 S.W.2d 324 (Tenn.
Ct. App. 1964), and the power to punish for contempt may be given by statute to more than one
tribunal. Milton v. Richardson, 47 N.Y.S. 735 (1897).
III.
THE DOMESTIC ABUSE STATUTES
In 1979, in an effort to curb domestic abuse, as defined in Tenn. Code Ann. § 36-3-601, the
legislature created a device to deal with the problem expeditiously. The device is called an “order
of protection”, Tenn. Code Ann. § 36-3-603, or a “protection order”, Tenn. Code Ann. § 36-3-604.
The statutes also extended the power to issue orders of protection to courts that otherwise would not
have had it. In Davidson County the courts having jurisdiction include “any court of record with
jurisdiction over domestic relations matters and the general sessions court.” Tenn. Code Ann. § 36-
3-601 (3)(B).
1
Tenn. Code Ann. § 29-9-102 goes back to the Public Acts of 1831, the same year that the United States
Congress passed an almost ide ntical statute to g overn fe deral cou rts. See 18 U.S.C. § 4 01 (1988 ). Apparently C ongress
became alarmed by the expansive view of his contempt powers by a federal judge in St. Louis, who punished a lawyer
for publishin g a critical article. See Green v. United States, 356 U.S. 165 (1957). We suspect that the state legislature
passed our statute out of a similar concern.
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With respect to enforcement, the legislature provided:
(a) Upon violation of the order of protection or a court-approved consent
agreement, the court may hold the defendant in civil or criminal contempt and
punish the defendant in accordance with the law. A judge of the general sessions
court shall have the same power as a court of record to punish the defendant for
contempt when exercising jurisdiction pursuant to this part or when exercising
concurrent jurisdiction with a court of record. A judge of the general sessions court
who is not a licensed attorney shall appoint an attorney referee to hear charges of
criminal contempt. (Emphasis added)
Tenn. Code Ann. 36-3-610(a).
It seems to us that the answer to the appellant’s contention in this case is found in the statute.
Tenn. Code Ann. § 36-3-610(a) gives the general sessions court the power to enforce the order of
the circuit court. The first sentence of the paragraph says “the court” may hold the defendant in civil
or criminal contempt. As we have seen “the court” has been defined to include the general sessions
court in Davidson County. The second sentence of Tenn. Code Ann. § 36-3-610(a) also reflects the
General Assembly’s decision to permit general sessions courts to hear contempt petitions for
violations of protective orders previously issued by a court of record. This sentence expands a
general sessions court’s contempt power to the same level as the circuit court2 not only when the
general sessions court is “exercising jurisdiction pursuant to this part” but also when it is “exercising
concurrent jurisdiction with a court of record.” In cases of this sort, a general sessions court can be
said to be exercising “concurrent jurisdiction” with a court of record only when it is hearing a
contempt proceeding for the violation of an order of protection previously issued by a court of
record.
A related issue has been raised concerning the proper venue for a contempt petition based
on the violation of an order of protection issued in one county and violated in another. The office
of the Attorney General issued its opinion No. 98-060 containing the conclusion that the only proper
venue was in the county where the order was issued. The opinion cited Chaffin, Churchwell, and
Mayhew for the conclusion, because there were no cases dealing with inter-county enforcement of
orders of protection and these cases involved nearly-related issues.
After the Attorney General issued opinion No. 98-060 the legislature solved the problem by
adding paragraph (b) to Tenn. Code Ann. § 36-3-612:
(b) Either the court that originally issued the order of protection or a court
having jurisdiction over orders of protection in the county where the alleged violation
2
Tenn. Code A nn. § 29-9-1 03(b) em powe rs courts of record to punish contempt with a fine of fifty dollars and
up to ten day s in jail; while the Metropolitan Charter permits general sessions courts to punish contempt with a fine of
$25 and/o r a jail sentence not to exce ed ten days.
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of the order occurred shall have the authority and jurisdiction to conduct the
contempt hearing required by subsection (a). If the court conducting the contempt
hearing is not the same court that originally issued the order of protection, the court
conducting the hearing shall have the same authority to punish a violation of the
order of protection as the court originally issuing such order.
The legislative history of the amendment reflects that the legislature’s concern was directed
solely at the question of multi-county enforcement of protection orders. The sponsors cited the
Attorney General’s opinion and the confusion it created over whether protection orders could be
enforced statewide. The amendment was designed to ensure that a protection order could be
enforced wherever a violation occurred.
Although the logic in the Attorney General’s opinion could be applied to intra-county
enforcement of protection orders – based on the cases cited in the opinion – we think the legislature
had already solved that problem by providing that the court could hold the defendant in contempt
and defining the court to include courts other than the one that issued the order.
The judgment of the trial court is affirmed and the cause is remanded to the General Sessions
Court of Davidson County for any further proceedings necessary. Tax the costs on appeal to the
appellant, Joseph D. Gray.
_________________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
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