[This reading of the circuit court record may lead one into missing essential point of conflict over property rights in Tennessee. The pleadings make it easy to forget the God-given constitutionally guaranteed right to be free from search and seizure absent a warrant on probable cause. Searches are granted ONLY in criminal matters, and in no other, and that a criminal case may be launched only under probable cause.]
By David Tulis / Noogaradio 1240 AM 101.1 FM
The Gaddy case in Dunlap Tenn., pits an unyielding and indignant couple against the offices of city government whose chiefs are bringing civil sanctions to bear for the couple’s assertion of their rights to be free from search and seizure.
The couple in their late 60s and early 70s insist they are outside the jurisdiction of the city, even though their claims of a faulty annexation in 1972 appear strongly rebutted in the court record — and by Google maps. The local judge is using civil contempt to enforce compliance of civil claims, but no criminal claims exist or have been argued.
Thomas and Carol Gaddy say their 100-plus year-old house is “grandfathered” and not subject to rules of the municipal corporation. But they make no argument for this claim as a matter of law. They say the house, built after the war to prevent Southern independence by a judge, has historic interest and that their nearly two decades of renovations are outside city authority. But their labors are improvements, not an historical restoration making the property more acceptable to an historical register.
How ‘inspection’ concept works
But there is one objection Thomas and Carol Gaddy have not made: That the inspection is a search, and that the search is without a criminal warrant. If the city has seen a crime take place, an officer could swear a warrant and gain access under lawful authority. But no crime has taken place, only private and innocent activity, even though Mayor Dwain Land says improvements have been done apart from a permit, a purported violation being addressed only now after years of work less than a pistol shot away from the town’s main thoroughfare. (Link is to 3-page complaint.)
Repeated efforts to interview the city attorney Stephen Greer about the case were ignored.
The court record suggests the couple is subject to regulation and inspection, as city corporations have civil authority only (City of Chattanooga v. Davis, 2001). But the defense of the property from unwarranted search appears not to have been made in those terms.
Also not clear in the record is Mr. Land’s remarks about permits for renovation — the city does not make that case in court pleadings.
In other words, the city’s use of the term “inspections” disarms Mr. and Mrs. Gaddy, who are really facing a “search,” which implies a criminal context, requiring a sworn warrant of a crime having been witnessed.
The record contains distractions
The initial complaint filed against the Gaddys is Feb. 11, 2015, in which Mr. Land swears an affidavit.
The city of Dunlap initially engaged services of state inspector Earl Geary Jr. (tel. 423-605-3825) who looked over the Getty house from the lot line and found it deficient. “[T]there were here years of the metal roof that were missing or obviously deteriorated beyond repair. The wood deck appeared to be structurally unsound ***. [It] would be my determination that the above structure and yard are in direct violation of Dunlap ordinance # 88. It is certainly a dangerous dilapidated, disused structure and unsafe for occupation and also a menace to adjoining property owners.”
A letter dated May 6, 2015, city attorney Greer in a summons to the Gaddys says, “You are also hereby enjoined and and restrained under penalty of law from conducting any further construction activities on your real estate described in the complaint until further orders from this court.” The prohibition of further work on the house is reiterated in city court filings.
City attacks constitutional guarantees
In a reply June 4 the Gaddys say that the house is safe, constitutes “absolutely no danger to the public, located on an acre and fenced with no public accessibility.” Their main point is that the house is a historic building, formerly known as 103 Main St. South, built by the first circuit judge of the county, Judge Carpenter, 100 years ago and “is grandfathered, precluding city permits or ordinances.” They say they are “honored to have the opportunity to own a valuable piece of Sequatchie County history and live in it.”
In other words, the Gaddys claim not just an exemption from regulation, but immunity from city control and the city code. The city says in so many words that its creation as a municipal corporation voids the Gaddys’ constitutional guarantees to be free from unreasonable and unwarranted searches and seizures. Such a claim is legally untenable.
The city acts as if search and seizure prohibitions against state actors are irrelevant, and that constitutional protections of the individual vis a vis the state are beside the point.
City swamps house
Dunlap not only swamps the Gaddys’ constitutional claims. Its actions swamp the Gaddy lot with water in heavy rains. One alarming photo of the record shows water filling the Gaddys’ front yard the water. The water runs off of higher land across the street which is owned by the city. The couple complain that the city is not putting in any kind of retention pond.
The record shows an affidavit by James Condra, who says says the property was measured, appraised and meets FEMA requirements by this Sequatchie County Tax Assessor’s office on Feb 24, 2015. One more proof, the Gaddys say, of their being in full compliance with all laws.
Mrs. Gaddy, who has a real estate background and married Thomas, her young love at age 17, is remarkable for being gabby on legal topics, on common law and rights. Her conversations often pursue legal rabbit trails and she loses sight of a main point. But it’s all good, because constitutionally protected rights come from God, and none is too slight to be overlooked.
Heroic use of ancient law
In a counter suit filed by “aggrieved property owners” June 12, 2015 in chancery the Gaddys launch their argument by referring to “private property rights as American citizens, ancient property rights that are the foundation of our matchless constitutional Republic given to us by our God-fearing forefathers” that they say should be “guarded and protected from all enemies both for and domestic.”
They say that the city raised the street level causing flooding on their property, forcing them to build a retaining wall around their well from being swamped by the runoff from the city land.
The suits demands a removal of the restraining order and requests that the city be commanded to “ immediately *** discontinue the abusive trespass and destruction to Gaddy private property” by installing a runoff retention pond on the city’s four acres across the street.
The filing does not address to issue of the permits for the grandfathering of the property on account of its status as an antique.
The record shows photographs of red muddy runoff ploughing through the Gaddys’ yard. The Gaddys say Coops Creek has not breached its banks. But the flooding is from the city lot across the street, the top of which is 10 feet higher than theirs. The householders complain separately the city burns waste on the lot past legal hours.
From civil matter to criminal matter
Judge Jeffrey F. Stewart, chancellor, on Nov. 5, 2015, writes an order based on an Oct. 29 hearing. He orders “that the city of Dunlap be permitted to inspect and photograph for video the Gaddy residence on November 10 *** for a reasonable time,” with the party including an attorney from the Greer, Swafford & Adams law firm, city inspector Bill Dennis and Earl Geary Jr., the state official.
The crew attempting the search showed up at 9 a.m. on Main Street outside the Gaddy house. According to the affidavit of Bill Dennis the inspector, Mr. and Mrs.Gaddy refused to come out of the house and receive a copy of the court order.” While the two parties faced off through the gate, the Gaddys gave an interview to TV 3 from Chattanooga. Attorney Greer gave a deputy a copy of the court order who sought to give it to the homeowners, who refused service.
A few days later, in answer to the order, the Gaddys objected to the effort to inspect, citing the declaration of rights. They cited constitutionally protected rights in the state’s charter from the people. “That government being instituted for the common benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.” (Article 1, Section 2).
Another provision gives the people the power to stop lawless deeds by state actors in their tracks. “The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate” (Article 11, Section 16). City officials ignore the powerful promises.
The power of contempt proceedings is brought into view Nov. 24, 2015, in a city petition. A petition for contempt converts a civil dispute in which neither party has the use of jails and police officers into a criminal matter in which the citizen is accused of a crime for refusing to obey the judge or mind his authorized representatives’ commands.
“It is apparent that defendants/counterplaintiff do not intend to abide by any order of the court, and therefore, they are in wilful contempt of this court’s order.”
The order goes on to say the Gaddys “must be punished for their contempt in order to get their attention and in order to require the day abide by the orders of this court.”
The Gaddys also make a serious objection to the inspection as ordered by Judge Stewart on Nov. 16, citing the possible evil effect of her own words. Mrs. Gaddy says that she had made “disparaging remarks” about the inspector’s abilities, saying he is incompetent. “This action, the defendant believes, will in all likelihood prejudice inspectors in their viewing of their ordered inspection and cause them to cast a jaundiced eye as they make their rounds inside their home and ran to the judgment unfair.”
Judge Stewart orders that the Gaddys allow an inspection on Nov. 30, 2015, at 1 p.m. oddly, however, the order of inspection is filed with the court Dec. 1, one or two days after the ordered inspection.
Fight enters new year
After considerable time of inactivity, the filings renew on May 11, 2016. One document is a 24-page municipal flood plain zoning ordinance and map of 2010, No. 218. A map shows about two-thirds of the Gaddy lot in what’s called a floodway. But many other properties along Coops Creek are also in the dark shading demarking a floodway. Copies of this ordinance or the record three times, accounting for 75 pages of two file folders.
A few days later, the Gaddys bitterly object to what they see as the city’s changing of the subject. They say their house is outside the city of Dunlap and the city “is now proceeding to restructure the case by amending the complaint, thereby acknowledging that the condition of the defendants’ home is irrelevant and a non issue.” They allege bad faith and say that the city is not entitled to relief.
City attorney Greer files an amended complaint to bring up the flood zone and/or floodways matter, one more burden for the homeowners to bear. The Gaddys claim again the second line of argument for the city is a concession that the city’s jurisdictional claims are false.
In what appears an honorable action, chancery court’s Judge Stewart on Sept. 16 recuses himself from the case. He makes note of the Gaddys’ assertion that the court and Mr. Greer “are working together to create a fiction and treats this assertion that the defendant questions the court’s ability to be impartial and fair in dispensing justice in this case.” He thereby steps aside. Judge Thomas W. Graham of circuit agrees to take over “by interchange.” That judge’s office is in Jasper. (Tel 942-3618 email tGraham at Tncpourts.gov.)
A Sept. 23 filing by the Gaddys asserts a darker act, implying a darker motive among city officials. The filing alleges a criminal trespass in 2014, an “attempted demolition” of part of the house in the same incident, theft of tools and aggravated burglary. It appears the city of Dunlap mayor’s hidden agenda “has taken a criminal turn which desires complete destruction of the Gaddy family,” the filing shrills. A local man was convicted in the case.
It’s here that Mrs. Gaddy points out that in federal law Title 18 section 241, conspiracy against rights, that a conspiracy two or more people to “injure, oppress, threaten and or intimidate a person” shall be fined not more than $10,000 or imprisoned for up to 10 years upon conviction. The couple insist their house is not in the city’s boundaries. Her outcry and finger-jabbing on this point landed Mrs. Gaddy in jail for two nights for contempt before Judge Graham, whom she swore she’d put away in prison for up to 10 years.
“Plaintiff during 19 months of case filings have not filed one legal document proving they have any authority or jurisdiction over defendants’ property,” the Gaddys insist.
In a Sept. 30 addendum for a motion for summary judgment, the Gaddys say that an Aug. 2, 1972, act of annexation did not happen, “for surely they know it takes it legislative act at law to legally annex property owners into their boundary.” In arguing that that municipal corporation has no jurisdiction over the private property of the defendants on these grounds, the Gaddys say that the city “has unclean hands” and that its officers “have engaged in terrorism and harassment tactics continually for years some of which violate state law.”
Extra-territorial city, or town within bounds?
For evidence of Dunlap extraterritorial operation, the Gaddys enter into the record a letter from the Secretary of State, suggesting that that records of the Tennessee private acts do not agree with the city of Dunlap assertions about its boundaries. The letter is signed by Gordon T. Belt of the Tennessee state library and archives.
The defendants are angry. Citing “cronyism” and possible boyhood friendships and other impediment to their obtaining a fair and impartial hearing, the Gaddys ask a new judge to be assigned to their case. They say that a local judge such as Mr. Graham “will not have the liberty to rule impartially, because of existing social, economic and political pressure.” Though the Gaddys say they are not Republicans they object to what they say is Democrat control of the judiciary the county that perceives them as if they were Republicans. Donald Trump won nearly 80 percent of the vote in Sequatchie County, but Mrs. Gaddy does little to play to antiestablishment sentiment when she has an audience.
The court ratchets up the cost of the couple refusing a search. In an Aug. 20 order Judge Stewart imposes a F$50 daily penalty (in nonreferential extraconstitutional banknotes issued by the Federal Reserve System) “for each day they fail to comply” with his commands to allow a search. He says if the defendants permit visitors by Sept. 7, “the fines will be waived.”
Meanwhile the city asserts the lawfulness of its annexation nearly 50 years ago. It enters into the record an affidavit from Timothy Altonen, a surveyor. He looks at ordinance No. 55 passed Aug. 23, 1972. In the record he states the Gaddy property is in the city. Oddly, no surveyor record from 1972 is entered in the case. Nor does the city show either from 1972 activity or from its 2016 review any list of property holders affected by the 1972 annexation — suggesting the city’s efforts are ad hoc or insubstantial backfilling.
The Gaddy’s language suggests emotional desperation in the latest part of the record. “This Tennessee 12th Judicial District has become a monopoly operated by lawyers and judges for self-[aggrandizement] and good buddy club and monetary game,” the defendants aver.
Mrs. Gaddy is a defendant of vigor and intelligence, and self-taught in matters of law. She says she is unable to afford an attorney, and though she has vigorously asserted her constitutional rights, she is strongly in need of financial support and well-informed counsel.
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