Court reform in Tennessee — how it could take place

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A cruiser waits for Chattanaooga police officers who are in a neighborhood at a crime scene. (Photo WTVC)

A cruiser waits for Chattanaooga police officers who are in a neighborhood at a crime scene. (Photo WTVC)

If God grants a restraining hand of judgment against the people of Tennessee and brings before them a greater prospect of justice, reforms will be in the direction of privatization of justice and reform within the courts run by state government.

Christian rebuilding of private justice, I refer you to the work of Joel McDurmon of American Vision in Atlanta, who has discussed Christian reconstruction of equity and justice through creation of church courts and nonprofit and for-profit courtlike agenciesHis book Restoring America One County at a Time includes Christian rebuilding of biblical justice and real equity.

By David Tulis / Noogaradio 1240 AM 92.7 FM

Meanwhile, as to reforms within the existing courts in Tennessee, a quest in Hamilton County by perennial defendant and political candidate Basil Marceaux brings light upon the areas of state govNoogaradio logo 92.7 fmernment that call for reformation.

Mr. Marceaux is pursuing a quixotic bid to have state government create what he calls a “trial de novo court.” This call for a court for “new causes” (as translated from the Latin) arises from what I suspect is a misunderstanding of state law relating to court authority and the venue for appeal in criminal cases. It’s a complex issue. But Mr. Marceaux has a grievance about state abuse against people in Tennessee that could be solved by other methods.

How courts have betrayed people, oppress poor

For convenience of the judicial industrial system, police in Hamilton County and every other county in Tennessee launch criminal cases by sending defendants to county sessions or municipal courts called city courts. These are inferior courts by definition. They do not have juries. They are not courts of record. They offer quick, summary justice. The judge is trier of fact and law. These courts are informal. They are not scrupulous about constitutional rights, and their informality allows judgments to be wrought rapidly.

But these are civil courts, not courts suited to try defendants while maintaining his constitutionally protected rights. In sum, these constitutional rights are for a trial by jury, the facing of the accuser, and probable cause underlying the charge and the arrest. The rights protecting the defendant arise from a biblical interest in justice and a true verdict in crime, which is understood to be an offense against God in the presence of man.

The grievance on behalf of justice here tracks the arguments of Mr. Marceaux.

Because people can be cited to these courts, they don’t have to be arrested in matters that are alleged to be criminal, or which are said to be criminal in the Tennessee code. Because people don’t have to face arrest, jailing, booking, bonding out and indictment, but can have their cases processed without open and naked force, the judicial system can absorb an astronomical number of cases and ruin the lives of many more people.

So great is the workload, the intake of people into the system, that the modern state seems to be thereby erected. The modern managerial, regulatory, social management state, aiming much of its humiliating powers against the poor, the ignorant, the careless, and the minority.

Inferior courts let the state and government elude the necessities of guaranteeing the rights of defendants in open court.

If the states were to remain a constitutional government and to respect constitutional government it would never allow itself the convenience of these courts. It would file no criminal charges unless it was ready to arrest, book, jail and permit the defendant to bail out prior to indictment. That would be the only way it would run its operation in service of justice and the defense of the innocent.

But because it allows itself to use civil courts in criminal matters, its workload is 2,000 percent larger than it might otherwise if it towed the constitutional line.

Mr. Marceaux understands this problem of mass law enforcement and mass incarceration through the pressure-relief valve of inferior courts. So do lawyers and judges who have cared to think about it. Mr. Marceaux says he is under a duty of multiple courts of appeal orders to create — or have created — a court to hear his appeal. He demands a “trial de novo” court.

Disjointure in law? Story about ‘de novo’ trials

In Hamilton County, alleged crimes are bought by officers through the citation process to city and sessions court. Sessions is largely a civil court, but the statute indicate it can hear criminal matters as “formerly conferred by law upon justices of the peace in civil and criminal cases, suits and actions.” (TCA 15-15-501). A reference to dockets indicates sessions judges must have separate civil and criminal dockets.

Tennessee law (TCA 16-15-729) says any civil case “originating in a general sessions court and carried into a higher court, *** shall be de novo.” But what about criminal cases tried in sessions? “The defendant may in any case covered by such rule appeal a verdict of guilty or the sentence imposed or both to the circuit or criminal court for a trial de novo with or without a jury,” but the defendant has to ask for a jury trial when he appeals, or waive the right.

Basil Marceaux of Soddy-Daisy is a professional criminal defendant so he can argue constitutional rights in court. (Photo David Tulis)

Basil Marceaux of Soddy-Daisy is a professional criminal defendant so he can argue constitutional rights in court. (Photo David Tulis)

Into this picture of cattle-call polity and practice Mr. Marceaux has hurled himself, demanding his rights, and bemoaning what he sees as abuse of process by everyone, from the county’s lawyer guild to the judges.

Mr. Marceaux is raising important questions about the obedience to the state’s bar and court systems — their obedience to the high court’s rulings in Chattanooga vs. Myers and Chattanooga vs. Davis. These cases say that because of the $50 fine rule in the state constitution, cities are civil. They are forbidden to impose punishment (violation of statute) but levy only fines (a sort of restitution). The startling implication, he suggests: Police in cities cannot enforce state criminal statute for acts within cities, that cities are in either a state of anarchy — or liberty.

That argument, one tremendously favorable to increasing liberty in Tennessee, is smacked down by people on the front line of authority. Criminal court judge Tom Greenholtz and Soddy-Daisy’s city attorney Sam Elliott say city courts and sessions court have authority to deal with state law cases and that Mr. Marceaux misrepresents the rulings.

Mr. Marceaux’ arguments about Davis and Myers have gained traction, and are ripe for a proper appeal or an attack via a prerogative writ. The traction appears not among members of the general public, but among judges of the two Tennessee courts of appeal. In responses to interlocutory appeals, the criminal court jurists say, “No, Mr. Marceaux, this case is not for us, but for civil,” and the civil court robed lawyers say, “No, sir, this case is not for us, but for criminal.”

His question, “Can my appeal from a criminal case within a city be heard in this court?” is like a sideways chicken bone in the throats of the judicary.

Mr. Marceaux cases are bogged down in facts and particulars, and may not serve as the best vehicle upon which to make his demand. An alternative might be an action quo warranto, which forces state actors to justify their actions in the law. A citizen, suing on behalf of the state itself in the public interest, can demand a state actor justify his actions, for the petition demands, “Under what warrant?” or “Under what authority?” is an act or custom based? Quo warranto would demand of the district attorney how he dares let city officers invade his jurisdiction and bring criminal cases from within the city limit.

Reform pressure rises

A reform has seeds in many places. The rise of YouTube videos of police abuse are turning public sentiment against policing to such a degree that even community policing is losing ground as a serious response to police executions, beatings and actions without probable cause. People are angry. Media coverage is intensifying: Poor offenders pay price when probation turns on profit.

The state is losing credit in other areas, as well, and trying to shore up its value to the citizenry. Its cartel in education has resorted to giving free college classes to the masses. On Wednesday, Gov. Bill Haslam signed a second schooling dole, Tennessee Reconnect, giving adults free access to state colleges and universities. He would like 55 percent of Tennesseans to have college degrees by 2055.

If Mr. Marceaux’ argument about the civil nature of cities is right, the enforcement of the supreme court of its earlier seemingly neglected opinion would slash police action against the citizenry by more than 95%.

Mr. Marceaux, 64 years old and not in the best of health, may not live long enough to press these reforms through defensive action in criminal cases or by an offensive step such as quo warranto.

How TN reform would look

Reform of courts and police would look like this.

Sheriffs would enforce statutes statewide, even though Mr. Marceaux says sheriffs are not allowed to operate within municipal corporation boundaries. Today, they serve only unincorporated areas. But sheriffs are elected, and have legal authority to enforce statute.

If police are no longer militarized and law enforcing, no citizen would need any longer fear arrest, abuse, tazing, beating, or shooting by an officer. Cops would have a civil function only, a peacekeeping job, like night watchmen in medieval walled towns, or sentries with pike in one hand and portcullis hawser in the other. They would not be armed, and would serve the public as do firefighters and paramedics.

Courts would have an extremely streamlined workload. They would handle civil cases as they do now. Criminal divisions would handle real violations of common law rights by state or private parties. These would be rape, assault, theft, burglary, robbery, fraud and murder. These are common law offenses, but are adopted in statute. Though Tennessee is a statutory law state, common law rights still exist, and would be protected by the sheriff, their public guarantor.

The state would oppose these reforms at every step, though they are pro-government and pro-constitution. It being a sort of civil and corporate divinity, the modern state is jealous of any law or agency against which a citizen or constitutional challenge is made. For these defy its implicit claims to the sovereignty, which is God’s alone. Sovereignty’s three elements — omniscience, omnipresence and omnipotence — the state claims for itself, to better manage the people.

The state would oppose these reforms from a sense of humanity. It cares about its many servants and supporters who make their livings grinding down the poor and upholding the police and status quo power of commercial government. So many of these would lose their stations on the public payroll.

Reform in the state sector would come, by God’s grace, through a return of constitutional government, submissive to the constitution and the people, and a phasing out of commercial government.

One great freedom restored

Reform to restore constitutional government would have its biggest and most easily perceived benefit in the privatization of the use of the road by people in their cars and trucks.

Today the state claims total jurisdiction of the use of the people’s roads. It does so through enforcement of a pretense operating against the people. That pretense is that all use of the road is commercial, that every user is a common carrier, transporting people and goods for hire, thus subject to the three legs of state commercial control of the freedom of movement. These legs are vehicle registration, insurance and licensing of the vehicle operator as a “driver.”

Working together today, the state and the government agree that police action is mandatory against anybody using a car or truck privately on the public right-of-way who does not show evidence of being in commerce. I have described this violent and corrupt system elsewhere.

In the end, defendants such as Arthur Jay Hirsch in Lawrenceburg, fighting a traveling conviction, and the work of Basil Marceaux in Chattanooga point in the direction for reform.

God’s judgment, or God’s blessing?

Weather God in his sovereign goodness will grant these reforms by an easing of the judgment against Tennessee in for their many sins, remains to be seen. While private justice will become much more common under a rebuilding and reconstructing of life in the South and particularly in Tennessee, reforms in the public sector under the authority of what the Bible calls a magistrate or judge would take the forms proposed here.

These are reforms Christian people should consider and about which they should pray.

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