) Hon. Frank v. Williams, Iii ( 1998 )

COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
February 27, 1998
JAMES N. RAMSEY, District ) C/A NO. O3A01-9708-CH-00321
Attorney General, Seventh ) Cecil Crowson, Jr.
Judicial District, ) Appellate C ourt Clerk
)
Plaintiff-Appellant, )
)
)
) APPEAL AS OF RIGHT FROM THE
) ROANE COUNTY CHANCERY COURT
v. )
)
)
)
)
TOWN OF OLIVER SPRINGS, et al., )
) HON. FRANK V. WILLIAMS, III,
Defendants-Appellees. ) CHANCELLOR
For Appellant For Appellees
JOHN KNOX WALKUP JAMES M. WEBSTER
Attorney General & Reporter Oak Ridge, Tennessee
Nashville, Tennessee
MICHAEL E. MOORE
Solicitor General
Nashville, Tennessee
GORDON W. SMITH
Associate Solicitor General
Nashville, Tennessee
O P I N IO N
REVERSED AND REMANDED Susano, J.
1
This is a declaratory judgment action brought by James
N. Ramsey (“Ramsey”), District Attorney General for Anderson
County (Seventh Judicial District).1 He sued the Town of Oliver
Springs (“the Town”) and a number of its officials, seeking a
declaration that the Town’s blanket policy and practice of
prosecuting Anderson County offenses in Roane County is unlawful.
This controversy stems from the fact that, while portions of the
Town are located in three counties -- Anderson, Roane, and Morgan
-- the Town’s City Court is physically located in Roane County.
Based on the parties’ stipulation of facts, the trial court
concluded that the Town could continue to prosecute state cases
arising in Anderson County, in the City Court physically located
in Roane County, provided that it first obtains a waiver of the
right to venue from each defendant. Ramsey’s appeal followed.
I. Facts
The Private Act establishing the City Court of Oliver
Springs provides, in pertinent part, as follows:
The City Judge shall be vested with
concurrent jurisdiction with courts of
general sessions for violations of criminal
laws, and shall try all offenses against the
peace and dignity of the Town of Oliver
Springs.
The City Judge shall also have jurisdiction
in and over all cases arising under the state
laws and ordinances of the Town of Oliver
Springs and all cases relative to the
violation of such laws and ordinances and
offenses against the state or the Town of
Oliver Springs.
1
Anderson County is the only county in the Seventh Judicial District.
2
Chapter 137, 1994 Private Acts, § 1(d) and (e) (“the Private
Act”). The Private Act does not prescribe a specific location
for the City Court. Id.
The Anderson County portion of the Town is located in
the Seventh Judicial District. The Roane County portion of the
Town is situated within the Ninth Judicial District.
Generally speaking, a District Attorney has no
authority over cases in districts other than his or her own. See
T.C.A. § 8-7-103 (Supp. 1997); State v. Campbell, 721 S.W.2d 813,
816-17 (Tenn.Cr.App. 1986). Accordingly, Ramsey is without
authority to prosecute defendants in the Town’s City Court, so
long as that court holds its sessions in Roane County.
The parties submitted a stipulation of facts, which is
as follows:
That the Town of Oliver Springs includes
portions of Anderson, Roane and Morgan
Counties.
That the physical location of the City Court
for Oliver Springs is in Roane County.
That the duly elected Judge of the City Court
for Oliver Springs is Defendant Joseph Van
Hook. That the duly elected District
Attorney General for Anderson County, which
is the Seventh Judicial District, is
Plaintiff James N. Ramsey.
That Defendant Grant Lowe is Police Chief for
the Town of Oliver Springs and Chief Lowe
brings persons charged in the Anderson County
portion of Oliver Springs before Judge Joe
Van Hook sitting as a Court in Roane County.
3
That Joseph Van Hook as Judge of the City
Court for Oliver Springs has presided as a
Judge with General Sessions Court for
criminal jurisdiction sitting in Roane County
over criminal charges which arose in the
Anderson County portion of Oliver Springs
over the objection of the Plaintiff District
Attorney for Anderson County.
That waivers of venue have not been obtained
from all of the Defendants charged with
committing crimes in Anderson County who
appeared before Court. That the Court now
requires a “waiver of venue” before accepting
guilty pleas.
That the Defendants, absent a ruling from a
Court of competent jurisdiction, intend
pursuant to 1994 Tenn. Private Acts, Ch. 127
[sic] to continue exercising the criminal
jurisdiction for a Sessions Court in the City
Court of Oliver Springs located in Roane
County over charges of crimes committed in
Anderson County.
II. Applicable Law
A. Standard of Review
Since the facts are not in dispute, our review of this
non-jury case is de novo upon the record, with no presumption of
correctness as to the trial court’s judgment. Ganzevoort v.
Russell, 949 S.W.2d 293, 296 (Tenn. 1997); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
B. Right to Venue
The right of a criminal defendant to venue in the
county in which the crime is alleged to have been committed is
found in Article I, Section 9 of the Tennessee Constitution:
4
That in all criminal prosecutions, the
accused hath the right to be heard by himself
and his counsel; to demand the nature and
cause of the accusation against him, and to
have a copy thereof, to meet the witnesses
face to face, to have compulsory process for
obtaining witnesses in his favor, and in
prosecutions by indictment or presentment, a
speedy public trial, by an impartial jury of
the County in which the crime shall have been
committed, and shall not be compelled to give
evidence against himself.
(Emphasis added). The portion of this constitutional provision
entitling a defendant to “an impartial jury of the County in
which the crime shall have been committed” literally pertains to
the “vicinage,” or place from which the jurors must be selected;
however, that provision has been interpreted to determine the
venue of the trial as well. State v. Nichols, 877 S.W.2d 722,
727 (Tenn. 1994); State v. Smith, 906 S.W.2d 6, 8 (Tenn.Cr.App.
1995).
Other relevant provisions regarding venue are contained
in the Rules of Criminal Procedure. Rule 18 provides, in
pertinent part, that “[e]xcept as otherwise provided by statute
or by these rules, offenses shall be prosecuted in the county
where the offense was committed.” Rule 18(a), Tenn.R.Crim.P.
Rule 21 provides for a change of venue upon the defendant’s
motion, or the defendant’s consent to the court’s motion, where
“it appears to the court that, due to undue excitement against
the defendant in the county where the offense was committed or
any other cause, a fair trial probably could not be had.” Rule
21(a), Tenn.R.Crim.P.
5
Another provision regarding venue is found at T.C.A. §
40-35-214. That statute permits a defendant arrested, held or
present in a county other than the one in which the indictment,
presentment or charge is pending, to state in writing his desire
to plead guilty, waive trial in the county where the indictment
is pending or the warrant was issued, and consent to disposition
of the case in the county in which he is present or has been
arrested. T.C.A. § 40-35-214(a) and (b). Significantly,
however, such waiver is conditioned on the approval of each
county’s district attorney general and court of criminal
jurisdiction. Id.
C. The Office of District Attorney General
Article VI, Section 5, of the Tennessee Constitution
provides that a district attorney general shall be elected for
each judicial district for which a judge having criminal
jurisdiction is provided. Specific provisions regarding district
attorneys general are set forth at T.C.A. § 8-7-101, et seq.
(1993 & Supp. 1997). T.C.A. § 8-7-101 mandates that “[e]ach
judicial district shall constitute a district attorney general’s
district.” T.C.A. § 8-7-103 (Supp. 1997) sets forth the duties
of the office. As pertinent here, that section provides that
[i]t is the duty of each district attorney
general to:
(1) Attend the circuit courts in the
district, and every other court therein
having criminal jurisdiction, and prosecute
on behalf of the state in every case in which
the state is a party, or is in any wise
interested;....
6
T.C.A. § 8-7-103(1)(Supp. 1997).
As noted earlier, a district attorney general is
generally without authority to prosecute cases outside of his or
her district. See T.C.A. § 8-7-103 (Supp. 1997); State v.
Campbell, 721 S.W.2d 813, 816-17 (Tenn.Cr.App. 1986). Within his
or her district, however, the degree of discretion afforded the
district attorney is significant. State v. Superior Oil, Inc.,
875 S.W.2d 658, 660-61 (Tenn. 1994). In the Superior Oil, Inc.,
case, the Supreme Court expounded on the nature of a district
attorney general’s discretion:
Although there are various statutes which
assign duties to the elected constitutional
office of district attorney general, there
are no statutory criteria governing the
exercise of the prosecutorial discretion
traditionally vested in the officer in
determining whether, when, and against whom
to institute criminal proceedings. Indeed,
it has been often recognized that
“prosecutorial discretion in the charging
process is very broad.” “So long as the
prosecutor has probable cause to believe that
the accused committed an offense, the
decision whether to prosecute, and what
charge to bring before a grand jury generally
rests entirely within the discretion of the
prosecution,” limited only by certain
constitutional constraints.
Id. at 660 (citing, inter alia, Cooper v. State, 847 S.W.2d 521,
536 (Tenn.Cr.App. 1992); In re Death of Reed, 770 S.W.2d 557, 560
(Tenn.Cr.App. 1989); and State v. Lunati, 665 S.W.2d 739, 746
(Tenn.Cr.App. 1983)).
7
Generally speaking, the courts of this state have been
protective of the district attorney general’s prosecutorial
discretion. For example, in the Superior Oil, Inc., case, the
Supreme Court declared a statutory provision2 unconstitutional,
due in large part to its infringement upon the “broad
prosecutorial discretion and awesome responsibility inherent in
the constitutional office” of district attorney general.
Superior Oil, Inc., 875 S.W.2d at 661. In so holding, the Court
stated that
[a]lthough the General Assembly may enact
laws prescribing or affecting the “procedures
for the preparation of indictments or
presentments,” it cannot enact laws which
impede the inherent discretion and
responsibilities of the office of district
attorney general without violating Article
VI, § 5 of the Tennessee Constitution.
Id. (Citation omitted)(emphasis in original).
III. The Parties’ Contentions
Ramsey contends that a criminal defendant does not
possess a general, unconditional right to waive venue. He argues
that a change or waiver of venue may only be accomplished
pursuant to Rule 21(a), Tenn.R.Crim.P., or T.C.A. § 40-35-214.
Thus, according to Ramsey, when neither of these provisions
2
The statute in question was the Water Quality Control Act of 1977,
which is codified at T.C.A. § 69-3-101, et seq. The Court held
unconstitutional § 69-3-115(d), which required the district attorney general
or the grand jury to obtain authorization from the Commissioner of the
Department of Health and Environment or the Water Quality Control Board prior
to instituting criminal proceedings under the Act. Superior Oil, Inc., 875
S.W.2d at 660-61.
8
apply, offenses committed in the Anderson County portion of
Oliver Springs must be tried in Anderson County.
In his brief submitted to the trial court, Ramsey also
contends that the Town’s venue waiver policy and practice
improperly allows the Town to retain various court costs, fines
and other funds to which Anderson County would otherwise be
entitled. He further argues that the Town’s practice
substantially interferes with his ability to discharge the duties
of his office. This latter position was more fully developed in
an amicus curiae brief submitted to the trial court by the
Tennessee District Attorneys General Conference, in which it is
argued that “the holding of the [City] [C]ourt exclusively in
Roane County impermissibly interferes with the discretion and
responsibility of the District Attorney General for the Seventh
Judicial District.”
The defendants, on the other hand, contend that the
right to venue, as found in Article I, Section 9, of the
Tennessee Constitution is subject to waiver by a criminal
defendant. They argue that this right of waiver is not dependent
upon the consent of the district attorney general, and that the
Town’s practice of obtaining waivers of venue, and then
prosecuting defendants in Roane County, is permissible.
IV. Analysis
It is clear that the Tennessee Constitution confers
upon criminal defendants an absolute right to venue in the county
9
in which the crime was committed. See Tenn. Const. Article I,
Section 9 (1870); State v. Nichols, 877 S.W.2d 722, 727 (Tenn.
1994); State v. Smith, 906 S.W.2d 6, 8 (Tenn.Cr.App. 1995). This
constitutional principle prompted3 the drafters of the Rules of
Criminal Procedure to provide that “[e]xcept as otherwise
provided by statute or by these rules, offenses shall be
prosecuted in the county where the offense was committed.” Rule
18(a), Tenn.R.Crim.P. (Emphasis added.)
The Tennessee Constitution, the Rules of Criminal
Procedure, and the applicable Code provision are all devoid of an
explicit grant of a right to waive the constitutional right to
venue. That is not to say that venue can never be waived; but
such waiver can occur only under certain circumstances and when
undertaken in conformity with the Rules of Criminal Procedure or
the applicable statutory provision. As previously indicated, the
Code and Rules of Criminal Procedure contain two provisions
relative to a waiver or change of venue. The first is Rule 21 of
the Rules of Criminal Procedure, which authorizes a change of
venue, with the defendant’s consent, when it appears to the court
that a fair trial in the county where the offense was committed
is unlikely, due to excessive publicity or excitement. The
second is T.C.A. § 40-35-214, which allows a defendant to waive
venue in the county in which a charge or an indictment is
pending, and then plead guilty and consent to disposition of the
case in the county in which the defendant has been arrested or is
being held. However, neither of the aforementioned provisions
are directly applicable in the instant case. Here we are faced
3
See Committee Comment to Rule 18, Tenn.R.Crim.P.
10
with a policy and practice by which criminal defendants execute
waivers of their right to venue in the county in which the
offenses have been committed, i.e., Anderson County, in order to
consent to disposition of their cases in the county in which the
City Court is situated, i.e., Roane County. Such waivers are
secured to accommodate what is obviously the Town’s expedient
decision to maintain only one courthouse; however, expediency
cannot justify a policy and practice that is contrary to
legislative enactments.
The Tennessee Constitution does not expressly grant to
a defendant an absolute right to waive venue. Furthermore, we do
not find within the constitutional right to venue, an implied
right to waive venue. Thus it is clear that, by enacting T.C.A.
§ 40-35-214 and adopting Rule 21, Tenn.R.Crim.P., the General
Assembly has placed certain limitations on the manner and
circumstances under which the right to be tried in the county
where the offense was committed can be waived by a criminal
defendant. Such legislative restrictions are presumptively
valid; generally speaking, the legislature has the power to enact
any law that is not expressly or impliedly prohibited by the
state or federal constitution. Dennis v. Sears, Roebuck & Co.,
446 S.W.2d 260, 266 (Tenn. 1969); Crowe v. John W. Harton Mem’l
Hosp., 579 S.W.2d 888, 892 (Tenn.App. 1979).
With regard to the qualification in T.C.A. § 40-35-214
that a waiver of venue under its terms is subject to the approval
of the district attorney, we note that a similar requirement
regarding waiver of the right to a grand jury investigation and
11
trial by jury4 has recently been upheld by the Court of Criminal
Appeals in State v. Brackett, 869 S.W.2d 936 (Tenn.Cr.App. 1993).
In that case, the Court of Criminal Appeals held that a district
attorney could withhold consent, pursuant to Rule 5(c)(2),
Tenn.R.Crim.P., to a trial in general sessions court without a
jury, as opposed to a jury trial in the county criminal court.
Id. at 939. In so holding, the Court of Criminal Appeals noted
that
[f]or many of the reasons the defendant is
guaranteed the right to trial by jury in the
criminal case, there exists a basis for the
state, on behalf of its people, to exercise
the same entitlement.
Id.
We believe that the same logic applies in the instant
case. It is clear that, absent special circumstances, venue for
a criminal proceeding lies within the county in which the offense
was committed. Tenn. Const. Article I, Section 9 (1870); Rule
18(a), Tenn.R.Crim.P. The legislature, by enacting T.C.A. § 40-
35-214 and adopting Rule 21, Tenn.R.Crim.P., has placed valid
restrictions on the circumstances under which venue may be
changed. In situations where Rule 21, Tenn.R.Crim.P., and T.C.A.
§ 40-35-214 are not implicated, a district attorney general has
the prerogative to insist that a defendant be prosecuted in the
county in which the offense was committed.
4
See Rule 5(c)(2), Tenn.R.Crim.P.
12
In this case, the Town of Oliver Springs has
implemented a policy and practice that necessarily involves a
waiver of a criminal defendant’s right to venue in the county
where the crime was committed. This is not in conformity with
either of the aforementioned provisions for a change of venue;
nor are we aware of any authority conveying a general, unfettered
right to waive venue upon one who is facing criminal charges.
Furthermore, the implementation of this practice by the Town
clearly impinges upon the ability of the Anderson County District
Attorney General to discharge the duties of his office, in that
it effectively takes cases arising within his own jurisdiction
out of his hands. We find nothing unconstitutional about the
Private Act on its face; nevertheless, the venue waiver procedure
implemented by the Town pursuant to that Act violates the
statutory scheme requiring each district attorney to exercise
certain prosecutorial responsibilities with respect to criminal
violations occurring within his or her district. See T.C.A. § 8-
7-101, et seq. (1993 & Supp. 1997). As noted earlier, “laws
which impede the inherent discretion and responsibilities of the
office of district attorney general” are impermissible. State v.
Superior Oil, Inc., 875 S.W.2d 658, 661 (Tenn. 1994).
V. Conclusion
Accordingly, we hold that the Town’s blanket policy and
practice of trying Anderson County cases in Roane County,
premised, as it is, on the false proposition that a defendant has
an absolute right to waive venue, constitutes an unlawful
expansion of a defendant’s right to waive venue beyond that
13
permitted by the provisions of Rule 21(a), Tenn.R.Crim.P., and
T.C.A. § 40-35-214. It therefore results that the decision of
the trial court is reversed. Costs at the trial level and on
this appeal are taxed to the appellees. This case is remanded to
the trial court for the entry of an order enjoining the
defendants from continuing to implement the policy and practice
held to be illegal in this opinion.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
_________________________
Herschel P. Franks, J.
_________________________
Don T. McMurray, J.
14