From: Ashburn, Melissa Ann
Sent: Wednesday, June 01, 2011 10:16 AM
To: 'vidabell@myersbell.com'
Subject: city court and code enforcement information requested
Judge Bell,
This email may contain too much information, but I want to be sure to cover the water
front and address the issues which may come up for Newport.
I have attached the following documents I think may be helpful: 1) a memo explaining
the use of the “dirty lots” code section (mowing, etc.) which also goes into the slum
clearance act (I see that Newport has not adopted a slum clearance ordinance, at least
not one appearing in their code, so this may be overkill); 2) a letter explaining generally
the control of the city court judge over the docket and disposition of citations (this
sometimes comes up when a judge gets active in code enforcement); 3) a memo
explaining how a code enforcement officer can be designated as a special police officer
for purposes of issuing code citations; 4) a sample request for proposal for a collection
agency contract; 5) an ordinance for use when entering into collection agency contracts;
6) an AG Opinion regarding costs of collection (relied on for contract language requiring
agency to add costs to collection accounts); and, 7) a letter which quotes extensively
from a legal opinion issued by Sid Hemsley, our Sr. Legal Consultant, on the issue of
levying a fine for each day a violation occurs or continues.
You will note from Sid’s language appearing in that pdf file letter that he is hesitant about
the use of daily fines, but the courts have clearly approved of such actions.
As we discussed, MTAS often advises cities to issue a new citation daily, after the
defendant has had a hearing date and is found to still not be in compliance, set the
hearings/appearances on those citations on the same date in court, and then a $50 fine
may be levied for each citation, along with costs and litigation taxes if the defendant still
is not in compliance. In addition to being able to collect court costs and litigation taxes,
such use of multiple citations prevents challenges that the city exceeded its fine authority
on one citation.
Following is the text of an email I sent to Judge Sellers about the application of rules of
civil procedure to city courts. Judgment liens and use of collection agencies to collect
parking tickets:
“Judge Sellers,
It is good to hear from you. I missed seeing you at the conference.
On the lien issue, it is not clear that the Rules of Civil Procedure apply to city
courts exercising municipal ordinance jurisdiction. This is based on the holding
that municipal courts are not “courts of record.” T.C.A. 25-5-101(b) states that
judgments from “any court of record” and general sessions judgments which
exceed $500 may become liens. However, as the Attorney General and our
courts have opined: “It is generally recognized in the state of Tennessee that
general sessions courts and municipal courts are not courts of record.” Tenn. Op.
Atty. Gen. No. 03-043 (April 15, 2003).
It is this classification of city courts as not being “courts of record” that leads me
to conclude that T.C.A. 25-5-101(b) does not apply to municipal court judgments,
unless, of course, the court is exercising general sessions jurisdiction and the
judgment exceeds $500.
With regard to the Rules of Civil Procedure, Rule 1 provides that the rules apply
to courts exercising “the civil jurisdiction of the circuit or chancery courts.” Rule 1
also states that the rules do not apply to general sessions courts unless such
courts are exercising circuit or chancery jurisdiction, but does provide application
of Rule 69 to general sessions judgments. There is no mention in the rules of
application to city courts. The Advisory Commission Comments following Rule 1
mentions application of the rules to “courts of record,” and the exception made
for general sessions courts in those specified situations. Absent clear language
that the rules apply in city courts, I have concluded that the rules of civil
procedure are inapplicable to municipal courts.
I have attached the collections RFP I mentioned in the presentation, along with
the AG opinion that opines the costs of collection may be passed along and
collected from the defendant. It is my understanding many cities forgo
contracting with collection agencies because of the large chunk of money the
agencies keep, but it appears to be legal to require the agency to collect the
costs of collection from the defendant as opposed to taking a slice of the
judgment amount.
As a side note – in my presentation I mentioned parking tickets, and stated they
may not be a part of the collection contract. That general statement is wrong,
and I should have explained it better. T.C.A. 40-24-105(d)(4) rather states that
the collection agency contract for parking tickets cannot violate T.C.A. 6-54513. That statute (passed in 2009) states:
A municipality shall have no authority to forward to a collection agency
unpaid parking tickets for collection without notifying the owner of record
of the motor vehicle for which the parking ticket was issued. The
notification shall be sent by postal mail to the owner of record of such
motor vehicle that such action will occur unless the owner pays the
unpaid tickets within thirty (30) days from the date the letter is mailed to
the owner. The municipality shall also include in the notification a
statement that, if the ticket is forwarded to a collection agency for
collection, the agency may notify the credit bureau or credit agency of
such fact, which could affect the owner's credit rating.
Tenn. Code Ann. § 6-54-513 (West)
So, technically parking tickets can be included if the city first provides this notice
to the vehicle owner. “
I do recommend that Newport start using a collection agency if they are not already
doing so, for delinquent court fines and costs, as well as parking tickets (but must follow
notice requirement stated above for parking tickets). Although mailing notices can be
time-consuming, I recommend doing so for every type of ticket which may be turned
over for collection. Such notices frequently inspire compliance.
I realize this information is pieced together like a crazy quilt, but I do hope it is helpful.
Are there other issues you need me to address? Just let me know and I’ll get back to
you.
Have a great day,
Melissa A. Ashburn
Legal Consultant
University of Tennessee
Institute for Public Service
Municipal Technical Advisory Service
(865)974-0411