Does Case Law Trump Statutory Law?

JUDICIAL OPINIONS CONTRADICT STATE STATUTES

by Sharon Rondeau

(Jul. 13, 2012) — On June 28, 2012, a hearing took place in the “Monroe County Criminal Court” on a charge against Walter Francis Fitzpatrick, III of “tampering with government records” set forth in Tennessee Code Annotated (TCA) 39-16-504.  As on a previous hearing on May 4, Senior Judge Walter C. Kurtz presided.

The law regarding government records reads:

Tenn. Code Ann. § 39-16-504

39-16-504.  Destruction of and tampering with governmental records.

(a) It is unlawful for any person to:

(1) Knowingly make a false entry in, or false alteration of, a governmental record;

(2) Make, present, or use any record, document or thing with knowledge of its falsity and with intent that it will be taken as a genuine governmental record; or

(3) Intentionally and unlawfully destroy, conceal, remove or otherwise impair the verity, legibility or availability of a governmental record.

(b) A violation of this section is a Class A misdemeanor.

(c)  (1) Upon notification from any public official having custody of government records, including those created by municipal, county or state government agencies, that records have been unlawfully removed from a government records office, appropriate legal action may be taken by the city attorney, county attorney or attorney general, as the case may be, to obtain a warrant for possession of any public records which have been unlawfully transferred or removed in violation of this section.

(2) The records shall be returned to the office of origin immediately after safeguards are established to prevent further recurrence of unlawful transfer or removal.

HISTORY: Acts 1989, ch. 591, § 1; 1998, ch. 906, § 1.

On December 7, 2011, Fitzpatrick had witnessed the selection of the grand jury members for the new year in the Monroe County courthouse.  Fitzpatrick has told The Post & Email that he witnessed a crime on December 7, 2011 when Judge Amy Reedy hand-picked the grand jury members for 2012.  He was arrested that evening after sheriff’s deputies barged into his home with a search warrant signed by an unidentified person, and his computer, ancillary equipment and numerous folders and documents were taken.

Fitzpatrick stated that he was not notified, in accordance with the law, that he had removed records which should have remained in the courtroom, and that he intended nothing criminal in picking them up. An attempt by Detective Conway Mason had reportedly been made to reach Fitzpatrick by visiting his home, but Fitzpatrick was not there at the time.  He did not have a home telephone, as  it had been disconnected while he was in jail between September 23, 2011 and December 3, 2011.

Does the fact that Fitzpatrick was not home when Mason went to his house to try to retrieve the papers make their removal from the courthouse a crime?

The records were returned through interstate channels last February.

At the time, Fitzpatrick had not yet discovered that a series of laws passed in 1984 had ordered the reorganization of all Tennessee trial courts from counties into districts.

During the June 28 hearing, which lasted slightly over an hour and for which The Post & Email has a full audio recording, Kurtz suggested that the person who signed the name of chief clerk Martha M. Cook to the charging documents was a “deputy clerk.”  Fitzpatrick asked, “How do you know it was a deputy clerk?  How do you know that?” to which the judge responded, “That’s irrelevant.”

Yet in the order issued following the hearing, Kurtz stated that Fitzpatrick “asserts that someone (probably a deputy clerk) signed the warrant using the clerk’s name.”  Fitzpatrick did not allege that it was a “deputy clerk;” rather, that statement was Kurtz’s speculation on June 28 and that of chief clerk Martha M. Cook during the January 17 probable cause hearing.

Following the June 28 proceedings, Kurtz issued four orders dated July 2, 2012:

Throughout the orders, Kurtz frequently refers to case law but to Tennessee Code only once:  TCA 8-7-103, parts 1 and 7, which outlines how the District Attorney General is selected:

Tenn. Code Ann. § 8-7-107

8-7-107.  Filling of vacancy.

A vacancy in the office of district attorney general shall be filled by the voters of the district at the next biennial election more than thirty (30) days after the happening of the vacancy. The election shall be ordered by the governor by issuing proper writs of election to the county election commissions throughout the district, notice being given for one (1) month by publication in one (1) or more newspapers in the district. In the meantime, the governor shall appoint a suitable person to fill the office temporarily until the election takes place.

HISTORY: Code 1858, §§ 318, 319 (deriv. Acts 1853-1854, ch. 32, §§ 6, 7); impl. am. Acts 1907, ch. 436; Shan., §§ 394, 395; Code 1932, §§ 644, 645; impl. am. Acts 1972, ch. 740, § 7; T.C.A. (orig. ed.), § 8-707.

The way in which a district attorney general is chosen does not address Fitzpatrick’s contention that Assistant District Attorney General Paul D. Rush cannot prosecute his case and act as his accuser.  Kurtz wrote:

Defendant argues that somehow the Assistant District Attorney General’s involvement in this case as his “accuser” invalidates the indictment and/or disqualifies the Assistant District Attorney from the case.  Mr. Rush (the Assistant District Attorney) is not a witness in this case.  The Assistant District Attorney represents the State and as such he is the lawyer for the State and prosecutor of criminal cases.  Tenn. Code Ann. § 8-7-103(1) and (7).

Addressing the issue of the grand jury foreman who served in 2011 and signed the indictment against Fitzpatrick in March 2012, in paragraph 2 on page 1, Kurtz states:

2. Defendant asserts that the grand jury foreperson has illegally served on successive grand juries.  Tennessee law, however, is clear that a foreperson may serve on successive grand juries and is not limited to one term.  See Nelson v. State,  499 S.W.2d 956, 956 (Tenn. Crim. App. 1972) and Thompson v. State, 2005 WL2546913, *25 (Tenn. Crim. App. 2005).  See also RAYBIN, TENNESSEE CRIMINAL PRACTICE & PROCEDURE, § 9.8 (2008) (selection of grand jury foreperson).

In Nelson v. State, the appellant, Thomas P. Nelson, had claimed that the foreman of the grand jury which indicted him “had been in office six or eight years,” making him “a professional juryman.”  In response, a special judge issued the following opinion:

We find no authority holding and can think of no valid reason why a grand jury foreman appointed for two years under T.C.A. 40-1506 is disqualified to serve longer either by reappointment or holding over.

Two other judges concurred with the “opinion.” However, an opinion is not law in and of itself:  “Opinions are usually published at the direction of the court, and to the extent they contain pronouncements about what the law is and how it should be interpreted…”

To which law is Kurtz referring when he states that a foreperson can serve consecutive terms?  Where is the law found in Tennessee Code Annotated?  What is its number?

The Nelson v. State opinion was discussed in a Politijab/Fogbow discussion about Fitzpatrick and The Post & Email almost two years ago.

The U.S. Library of Congress states:

In the American legal system, judicial decisions are primary sources of law, in addition to the Constitution, statutes, and regulations.

The United States has parallel court systems, one at the federal level, and another at the state level. Both systems are divided into trial courts and appellate courts.  Generally, trial courts determine the relevant facts of a dispute and apply law to these facts, while appellate courts review trial court decisions to ensure the law was applied correctly.

Court opinions create legal precedents that guide judges in deciding similar future cases.

But what happens when a judicial opinion is not in keeping with state statutes, the state constitution, or the U.S. Constitution?

In a case appealed to the Sixth Circuit Court of Appeals in 1977 in which Judge Walter C. Kurtz served as the attorney for the appellants, TCA 40-1506, an outdated Tennessee statute, is described as stating that the grand jury foreman is a member of the jury who is selected differently than the other jurors.  The case was argued on the basis that there was racial discrimination in the choosing of the grand jury foreman who signed the indictments against the appellants, James Mitchell and James Nichols.

Regarding juror selection, the law at the time, TCA 40-1506, appeared to allow for the following:

* Tennessee uses the “key man” system of jury selection, relying on three jury commissioners appointed by the trial judge to select a pool of prospective grand jurors from the general population. Tenn. Code Ann. § 22-223. Every two years, the commissioners meet to select names “from the tax records and permanent registration records of the county, or other available and reliable sources,” § 22-228. The number of names are determined by the judge. The names are recorded officially in a jury list book, § 22-228(a), then written on cards, sealed in a box, and drawn at random as needed for jury service. The same list serves as jury pool for both grand and petit juries.

13The commissioners have a duty to propose a “list of names of upright and intelligent persons known for their integrity, fair character and sound judgment.” § 22-228. The basic statutory qualifications for jury service are that a juror must be at least eighteen years old, a United States citizen and a resident of the county in which he or she serves as juror. § 22-201. In addition, persons convicted of “infamous offenses,” of unsound mind, with deficient sight or hearing, or habitually drunk are disqualified. Persons in certain exempt occupations or who would suffer hardship if they served are excused.

14The foreman or forewoman of the grand jury is selected in an entirely different manner. In essence, they are hand-picked by the trial judge from the eligible population for a two-year appointment. § 40-1506. They are subject to the same statutory qualifications as jurors except that they must be at least twenty-five years old.

The law does not state that a foreman can be reappointed to consecutive two-year terms; it states that the appointment is for two years.  The determination of the discrimination issues raised in the appeal then cites case law, statutory law, and the state constitution when referring to the functions of the grand jury and foreman:

The foreman or forewoman is vitally important to the functioning of grand juries in Tennessee, being “the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof.” Tenn.Code Ann. § 40-1506. He or she is expected to assist the district attorney in investigating crime, may administer oaths to all witnesses, conduct the questioning of witnesses, must indorse and sign all indictments,8 and like every other chairperson is in a position to guide, whether properly or improperly, the decision-making process of the body. Additionally, the indorsement and signature of the foreman or forewoman is indispensible to an indictment in Tennessee, and their absence voids the bill. Bird v. State, 103 Tenn. 343, 52 S.W. 1076 (1876).

35

In any case, even without these important duties and powers, the foreman or forewoman is a full member of the grand jury, and we agree with the district court in Hale v. Henderson, 336 F.Supp. 512 (W.D.Tenn.1972), that a grand jury which is only twelve-thirteenths constitutional cannot render constitutionally valid indictments.

The court ruled:

(A) State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process.

44The necessary remedy in such a case is also clear:

45(N)o State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. . . . (I)t is our duty as well as the State’s to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained.

46Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559 (1942).

47It is therefore ordered that the cause be remanded to the district court for entry of an order providing that petitioners’ convictions be set aside, and that within sixty days the petitioners be reindicted, failing which the writ of habeas corpus shall be made absolute and petitioners released from custody.

Of the role of the judiciary in our system of government, an online legal resource states:

When people talk about “what the law says” or “what the law is,” they are generally referring to statutes (sometimes called codes). Statutes, which are created by the U.S. Congress and by our state legislators, attempt to lay out the ground rules of “the law.” When disputes arise over the meaning of statutes, state and federal courts issue court opinions that interpret the statutes more clearly. This is referred to as “case law.” In addition, numerous federal and state agencies, such as the Environmental Protection Agency, the IRS, and the various Secretary of State’s offices, issue regulations that cover the legal areas that the agencies control (such as environmental law, federal taxes, and corporations law).

It appears that in Tennessee, judges are using past judicial decisions made outside of the law to make similar declarations from the bench.  The state statutes are rarely referred to; rather, the courts’ Rules of Criminal Procedure and previous judicial edicts, whether or not constitutional or legal, are considered “the law.”

Today, jurors must be selected by automated means:

22-2-301.  Automated selection of names for jury list.

(a) The jury coordinator in each county shall select names of prospective jurors to serve in the courts of that county by random automated means, without opportunity for the intervention of any human agency to select a particular name and in a manner that causes no prejudice to any person. The names, which shall constitute the jury list, shall be compiled from licensed driver records or lists, tax records or other available and reliable sources that are so tabulated and arranged that names can be selected by automated means. The jury coordinator may utilize a single source or any combination of sources. The jury coordinator is prohibited from using the permanent voter registration records as a source to compile the jury list.

(b) The jury coordinator shall repeat this procedure as often as reasonably necessary, but in no event may a list be retained for more than two (2) years. Prior to repeating this procedure and compiling a new jury list, no person may add to or take from the existing list, except as provided in this part.

(c) Notwithstanding the provisions of title 2, chapter 2, part 1 to the contrary, any voter registration form created on or after January 1, 2009, by the state coordinator of elections shall clearly state on the registration form the following: “Names of persons selected for jury service in state court are not chosen from permanent voter registration records.”

HISTORY:Acts 2008, ch. 1159, § 1.

A juror who has served on either a petit or grand jury cannot serve again within a 24-month period.

TCA 16-16-101, originating in 1858 and amended in 2003, mandates the establishment of courts by the legislature:

Tenn. Code Ann. § 16-16-101

16-16-101.  Establishment.

(a) A court is established in each county for the dispatch of probate and other business entrusted to it, to be called the county court.

(b) Subsection (a) shall only apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:  Click here to view image.

(c) In counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census or any subsequent federal census, the circuit court clerk, who also serves as the general sessions court clerk, shall serve as the clerk of the court with probate jurisdiction in any such counties.

HISTORY: Code 1858, § 127 (deriv. Acts 1835-1836, ch. 6, § 1); Shan., § 221; Code 1932, § 161; modified; T.C.A. (orig. ed.), § 16-701; Acts 2003, ch. 310, §§ 1, 6-10; 2005, ch. 245, §§ 1, 2.

TCA 16-16-107 described the “county court” as a civil court:

Tenn. Code Ann. § 16-16-107

16-16-107.  Original jurisdiction.

(a)  (1) The county court has original jurisdiction in the following cases:

(A) The probate of wills;

(B) The granting of letters testamentary and of administration, and the repeal and revocation of letters testamentary and of administration;

(C) All controversies in relation to the right of executorship or of administration;

(D) The settlement of accounts of executors and administrators;

(E) The partition and distribution of the estates of decedents; and for these purposes, the power to sell the real and personal property belonging to the estates, if necessary to make the partition and distribution, or if manifestly for the interest of the parties;

(F) To sell real estate for the payment of debts of a decedent as provided in former §§ 30-602 and 30-603;

(G) The appointment and removal of guardians for minors and conservators for persons adjudicated incompetent, and all controversies as to the right of guardianship and conservatorship, and the settlement of guardian and conservator accounts;

(H) The partition, sale or division of land;

(I) The changing of names and the legitimation of children;

(J) The issuance of inquisitions of unsoundness of mind; and

(K) The binding out of apprentices, and all controversies between master and apprentice.

(2) In counties having a county judge, the county judge shall have the powers enumerated in subdivision (a)(1).

(b) Subsection (a) shall only apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:  Click here to view image.

(c)  In counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census of population or any subsequent federal census, the circuit court clerk, who also serves as the general sessions court clerk, shall serve as the clerk of the court with probate jurisdiction in any such counties.

HISTORY: Code 1858, §§ 4201, 4202 (deriv. Acts 1797, ch. 41; 1805, ch. 2, § 1; 1815, ch. 115; 1835-1836, ch. 6, § 2; 1849-1850, ch. 27, § 1; 1849-1850, ch. 77, § 1; 1849-1850, ch. 185, § 1; 1851-1852, ch. 338, §§ 1, 2; 1853-1854, ch. 53, § 1); Acts 1873, ch. 64, § 1; Shan., §§ 6027, 6029; Code 1932, §§ 10225, 10227; impl. am. Acts 1951, ch. 202; Acts 1976, ch. 529, § 5; T.C.A. (orig. ed.), § 16-709; Acts 2003, ch. 310, §§ 1, 6-10; 2005, ch. 24, §§ 1, 2; 2011, ch. 47, § 14.

In a volume containing Tennessee Code Annotated through the year 2009 in the Athens, TN Public Library, the section entitled “Notes to Decisions” on page 225 reads:

1. County Court as a Constitutional Institution.

The county courts are wholly wanting in common law powers…County courts are constituted corporations and can exercise only such powers as may be entrusted to them by the legislature…The county courts of Tennessee are recognized by the Constitution but they possess no judicial jurisdiction other than that conferred by statute…

2. Powers — Derivation from Legislature.

The powers “entrusted to” the county courts emanate from the legislature alone; hence, when a power claimed for them is not so conferred, it must be held not to exist…

3. Probate Jurisdiction.

The statutes make it clear that the county court is the probate court.  The 1978 constitutional amendments superseded this court.  Viewed realistically the probate court is just as much a part of our judicial system as the juvenile court.  Probate judges are county officers…

The Tennessee Supreme Court amended its Rules of Criminal Procedure in 2010 with the caveat that the General Assembly had to approve the changes, which would appear to suggest that the legislative branch has oversight of the judicial branch of government.  The Rules of Criminal Procedure are not statutes, but Rule 6(g) says of the grand jury foreman:

(g) Appointment, Qualifications, Term, Compensation, Vote, and Duties of Foreperson.

(1) Appointment of Foreperson. The judge of the court authorized by law to charge–and receive the report of–the grand jury shall appoint the grand jury foreperson. When concurrent grand juries are impaneled, the court shall appoint a foreperson for each grand jury.  [Emphasis ours]

(2) Qualifications of Foreperson. The foreperson shall possess all the qualifications of a juror.

(3) Duration of Appointment. The foreperson shall hold office and exercise powers for a term of two (2) years from appointment. In the discretion of the presiding judge, the foreperson may be removed, relieved, or excused from office for good cause at any time.

The “duties of foreperson” are described as follows, in part:

(4) Duties of Foreperson. The grand jury foreperson has the following duties:

(A) to assist and cooperate with the district attorney general in ferreting out crime, to the end that the laws may be faithfully enforced; [Emphasis ours]

(B) out of term, to advise the district attorney general about law violations and to furnish names of witnesses, whom the district attorney general may, if he or she deems proper, order summoned to go before the grand jury at the next term;

(C) in term, (in addition to the district attorney general who also has such authority) to order the issuance of subpoenas for grand jury witnesses; and

(D) to vote with the grand jury, which vote counts toward the twelve necessary for the return of an indictment.

The judiciary has stated again that it is governed by the legislature, which makes the laws for the state.  Articles of impeachment against state judges originate in the state House of Representatives.

The 1984 laws mandated that criminal courts would be conducted at the district level, which grouped counties together into such districts in most cases.  The law stated that two different grand juries would be empaneled each year and that the presiding judge could choose the foreman, but not for a two-year term.  After Fitzpatrick brought these laws to the court’s attention, Kurtz said:

Defendant has a theory that when the legislature enacted the judicial districts in 1984 it thereby mandated that the grand jury should be district wide and therefore grand juries appointed in the respective counties are illegal.  Such is simply not the case.  An individual can only be indicted by a grand jury in the county where the crime is alleged and has taken place.  See State v. Hill, 847 S.W.2d 544 (Tenn. Crim. Appl. 1992); Tenn. Rule Crim. Proc. 6 (refers specifically to crimes “within the county”).  See generally, RAYBIN, supra, §9.5 et seq.

In Monroe County, a foreman served for 27 consecutive years in a “county criminal court” convened both before and after 1984 without having been sworn in, which did not adhere to the Rules of Criminal Procedure or the statute passed in 2008, 22-2-314.

TCA 16-2-510 reads, in part [emphasis ours]:

(c) New grand juries shall be impaneled at least twice a year at times selected by the presiding judge of the district.  The presiding judge within each district shall be responsible for designating the foreperson and for impaneling, charging and receiving the report of the grand jury, but may designate another judge to perform these responsibilities.  In those districts in which there is a criminal court judge or judges, the criminal court judge or judges shall perform the duties pertaining to the grand jury assigned to the presiding judge by this subsection (c).

At the federal level, the foreman and deputy foreman are chosen by the judge from the group of people impaneled to review evidence.  Regarding the operation of the grand jury, it is reported that:

Historically, grand juries have performed two functions. They decided whether someone should be charged–“indicted”–for committing a crime. They also investigated criminal activity and the conduct of public affairs. Before the American Revolution, colonial grand juries essentially ran local government, supervising everything from road-building and bridge maintenance to the operation of local jails. Over the years, they lost much of their public affairs function, as the operation of local government was taken over by administrative agencies, an institution that did not exist in colonial times.

According to Wikipedia, “In the early decades of the United States grand juries played a major role in public matters. During that period counties followed the traditional practice of requiring all decisions be made by at least twelve of the grand jurors,…Any citizen could bring a matter before a grand jury directly, from a public work that needed repair, to the delinquent conduct of a public official, to a complaint of a crime, and grand juries could conduct their own investigations.”

Rules of Criminal Procedure have been described as designed “to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals.”  The difference between “criminal law” and “criminal procedure” has been explained as:

Criminal LAWS are what is passed into statute by the state legislature. Criminal PROCEDURE is the (at times) extremely complicated maneuverings and precedents which go on in court having to do with the application of the criminal law.

One of Kurtz’s four orders stated that “Defendant’s motion number 5 is granted in part.  See T. R. Crim. Proc. 41(g).  The State shall return to Defendant within ten (10) days of this Order all property seized during the search of December 7, 2011, except the property which will be introduced at trial or property necessary to prove chain of evidence.”

Fitzpatrick had requested on June 28 that his computer equipment be returned to him via delivery to the Athens, TN Police Department, where he would retrieve it.  Since it has now been ten days since the date of the order, The Post & Email will be inquiring as to whether or not any of the equipment has been returned in accordance with the order.