Marceaux says court loss really a win; ‘criminal’ case heard in civil court

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Basil Marceaux, defendant provocateur, and Sam Elliott in Hamilton County circuit court. (Photo David Tulis)

Basil Marceaux, defendant provocateur, and town attorney Sam Elliott in Hamilton County circuit court. (Photo David Tulis)

 

CHATTANOOGA, Tenn. (May 22, 2017) — Court reform activist Basil Marceaux’ offers a mix of high-flying, historical and quirky arguments in a court that would have instantly booted him if his attack on the legal status quo did not contain some essential truth.

His pleadings go down in flames Monday in the court of circuit judge Neil Thomas, whose dismissal Mr. Marceaux sees as an implicit endorsement of his arguments about the state’s judicial-industrial complex’s stark disobedience to key Tennessee rulings.

By David Tulis / Noogaradio 1240 AM 92.7 FM

In an hourlong hearing in Chattanooga, Mr. Marceaux gives a range of legal, historical and seemingly whimsical arguments as to why one criminal case against him can be argued even though it was dismissed and why that and a second case must be heard in a court that doesn’t exist — an entirely new “de novo” venue combining circuit and sessions jurisdictions.

Noogaradio logo 92.7 fmMr. Marceau, 64, is a defendant provocateur in Hamilton County who has been arrested more than 20 times in his fight over police practices and with the bar. He has pleaded before many courts his constitutionally guaranteed rights to liberty and due process. Local criminal court judge Tom Greenholtz calls his presentation “confusing” and “not well taken.”

Today he further hones an argument that two key Tennessee supreme court cases forbid city governments from enforcing criminal statutes and operating police departments, as if these are an occupying military power from alien jurisdiction, agents whose principal lacks legal authority to enforce statute.

City’s pleas approved

But Judge Thomas grants motions to dismiss by Sam Elliott, Soddy-Daisy city attorney, who says afterwards that Mr. Marceaux misreads Chattanooga v. Davis, 54 S.W.3d 248, 259 (Tenn. 2001) and Chattanooga v. Myers, 787 S.W.2d 921, 922 (Tenn. 1990), controlling cases, one of which recognizes a “disturbing aspect” and “probable unconstitutionality of the policies and practices of the city of Chattanooga” that continue under acquiescence by district attorneys general statewide, including Hamilton County’s Neal Pinkston.

“I didn’t lose at all,” Mr. Marceaux declares. “If he didn’t have jurisdiction, he should’ve said I need to go back to criminal court.” The basic fact he has a hearing before circuit court judge Thomas in civil court (vs. criminal) makes his point “because he ruled civilly, not criminally.”

Mr. Marceaux is “absolutely wrong, period,” Mr. Elliott says afterwards. The Davis and Myers cases “don’t say what he says they say. The bottom line is the legislature made a provision some years ago that if cities decide to utilize a criminal court judge or a criminal sessions proceeding in their municipal courts, that they can elect to do so. In 1990 or 1992, I forget which date, Soddy-Daisy elected to do that. East Ridge has done it. Red Bank’s done it. Collegedale’s done it. Chattanooga has decided not to. So that may create some confusion, too. Because you create some courts locally where that’s done, and some where that’s not.”

Judge Thomas threw out Mr. Marceaux’ claims on grounds that if there is no adverse finding against the mustachioed Mr. Marceaux, he has no grounds to fight on in any court. Judge Greenholtz in a four-page ruling in July 2016 says city courts “[have] the authority to hear criminal actions involving violations of state law.”

“Just because they were doing it for 164 years illegally doesn’t make them right,” Mr. Marceaux says. He seeks a high court explicitly overturning the police state in Tennessee by emasculating city police departments statewide and forbidding them the convenience of using city and sessions courts.

‘You’re invisible; you’re not here’

Judge Thomas argues with Mr. Marceaux that he is under no threat from the state and its officers. “You’ve been as free as a bird,” Judge Thomas says. The jurist who recently announced his retirement tells Mr. Marceaux he lacks standing to be seen or heard. “You’re invisible; you’re not here. There are no proceedings against you, so you are not here.” Judge Thomas says that Mr. Marceaux comes and goes freely from the court, and walks outside without fear of arrest. “You see, there’s no prosecutor. There is no prosecutor, there is no punishment.”

Mr. Marceaux tells the court that he is in servitude to arbitrary government, whose agents stop people without probable cause, tase, kidnap and even kill them.

In a case for which he was accused of disorderly conduct, he argues, police kidnapped his granddaughter.

The judge says Mr. Marceaux is in no way enslaved and demands how Mr. Marceaux can rightly see himself in constant jeopardy of arrest, threat and duress. Mr. Marceaux says just using the public right-of-way in a car, he and other Tennesseans face “process servers” operating beyond their authority in the guise of police officers. A Soddy-Daisy cop could easily just arrest him today, he says.

Arbitrary government

Mr. Marceaux calls the state’s efforts to quash his appeal a “loophole” and insists the case is still alive because it was not properly dismissed by a proper court — criminal court not being the proper court. Mr. Marceaux treasures standing — having a live case as a vehicle upon which he can pursue another of a daisy-chain of petitions that have garnered him a set of remarkable contradictory responses from civil and criminal courts of appeal.

Mr. Marceaux says he cannot get justice. He says after the hearing that when he arrived at the court Judge Thomas and Mr. Elliott were having an ex parte conversation in his office — forbidden under the rules of judicial ethics for the appearance of evil and bias, since both parties in a dispute are not present. (Mr. Elliott says he and Judge Thomas had been discussing the Chattanooga History Center.)

The hearing has a clandestine air. In public he demands why the court is not equipped with twin cameras to create a record that should be available to him for a nominal fee. Circuit is a constitutional court of record.

But no transcriptionist is hired to report on the hearing, and no record is created except a bad one on this reporter’s pocket phone.

Mr. Marceaux has the floor at least 40 minutes, and makes arguments as much speculative and historical as legal. “This law in the box says I’m a great man,” says the former Marine. He is on the scene, he says, to end slavery. The 1866 civil rights act makes him superior to any general, he avers without objection from Soddy-Daisy. He holds up a jacket with medallions, proving him a protector of the people, as it were.

Judge Thomas listens patiently.

Mr. Marceaux boasts he has more “mandated orders” than anyone in state history and that these one-page dismissals over jurisdiction show that cities are civil only — enclaves into which not even sheriffs may lawfully penetrate to enforce state law. Neither are police departments authorized to enforce the law in cities, he argues. The basis of the limits on city enforcement and punitive authority is the Constitution’s $50 fine rule which allows city government to penalize a defendant no more than $50. The rule originating in 1796 says cities cannot punish, period, Mr. Marceaux argues.

Soddy-Daisy 2 Marceaux cases 

For Mr. Elliott of Soddy-Daisy, the matter at hand is much less than Mr. Marceux makes it. The issues are not about a massive abuse of the people by a court system that wants to generate fees and business for his trade in disregard of a hapless supreme court bench. His narrative of the day’s business is about a stout-hearted and sympathetic criminal defendant who’s also a high-minded bungler in reading law.

“There are several cases through the years where there’s been some discussion of the jurisdiction of city courts. And city courts have two types of jurisdiction. City courts have jurisdiction of two types of cases. They have jurisdiction over city ordinance cases which are, as the supreme court has held, essentially civil penalty cases.

“Then, certain city courts — not all in Hamilton County, but some — East Ridge, Collegedale, Soddy-Daisy, Red Bank — have general sessions type jurisdiction. In other words, they can hear state criminal cases like a general sessions court could.

“A lot of lawyers get that wrong. And Mr. Marceaux has gotten that wrong himself.

“He had two state criminal cases pending in the Soddy-Daisy municipal court. One of them he waived up to the grand jury. In other words, he didn’t even have a hearing in Soddy-Daisy. Instead, the case went on  to the grand jury. He pled guilty after an indictment from the grand jury and in the criminal court he pled a guilty plea. Since that case started in Soddy-Daisy, in the disposition of it and waiving it up to the grand jury, he went ahead, under that misapprehension I’m speaking of, he decided that he could have a new hearing in circuit case.

“No, that case was over and done with in 2014 in criminal court,” Mr. Elliott says. “And after a judgment has sat for a certain amount of time, it’s final. And so that’s what’s happened to one of his cases.

“The second case he had driving on a revoked license in Soddy-Daisy, it was pending in Soddy-Daisy municipal court, and the court dismissed  the case. So there’s nothing to appeal to circuit court. So those are the two bases for what Judge Thomas ruled today.”

Spreading leaven

The question that seems to cause grief to the Tennessee judiciary is one that other criminal defendants — Jeremy Shinn and Vernon Deaver  — are using, whose names are cited in his oral argument. The question is, as stated in a 100-plus page brief by Mr. Marceaux: “Can the criminal court of appeals hear my case from the city limits,” or, more practically, Can the state prosecute me in a criminal court if my prosecution arises from an act within the city limit?

These defendants are getting confusing responses from the civil and criminal courts of appeal, ones that Mr. Marceaux suggests seem to deny them the constitutional right of appeal in light of his hammering of the wedge question.

Part of this claim is that state law requires his appeal in a trial de novo to be heard by a judge with “with two mouths.” Mr. Marceaux holds up copies of the statute describing appeals out of lower courts. In the statute, adverse rulings out of city and sessions courts are sent to circuit court for a completely new trial (“de novo”) because they impliedly are civil cases only. The law says criminal cases are brought by warrant, indictment and arrest, not by citation and entry into the judicial complex in what are called constitutionally inferior courts with no jury, no record.

Mr. Marceaux complains afterwards Judge Thomas had given him leave to research the creation of a trial de novo court, and then does not let him get to that material in the hearing Monday.

“Inside the city limit, there can be no punishment or taking of substance,” he says. His argument magnifying the power of the Myers and Davis opinions is one that “would be devastating to this court,” he warns.

That Judge Thomas heard his case in a civil jurisdiction is precedent setting, Mr. Marceaux says. How is it a criminal matter from within a city limit is heard in a civil court unless his main premise is accepted — that cities have no criminal authority to begin with, only civil and equitable power?

This insight is echoed in Chattanooga v. Davis, he says. That was a criminal case. The city filed its appeal in the civil court of appeals. The city lost and appealed again to the supreme court, where it lost again, with city court judge Walter Williams’ F$500 fines slapped down. If the city believes that it had authority to argue criminally, why did it not appeal to the court of criminal court? He asks.

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