QUESTION: I CAN'T FIGURE OUT WHETHER YOUR PROBLEM WITH ANDERSON COUNTY'S
JUVENILE COURT IS YOUR LACK OF RESOURCES (LETTER OF 12/29/98) OR THE ETHICAL
PROBLEM WITH THE JUVENILE PROBATION DEPARTMENT (LETTER OF 1/6/99). EXPLAIN.
ANSWER: These issues are separate and independent of each other, and
neither depends upon the other for resolution.
With respect to the DA's office and its lack of resources for prosecuting in
Juvenile Court, that problem is easily resolved by the Judge at any time
insofar as she may request the County Attorney, any City Attorney, any
School Board's attorney, or any private attorney from the Anderson County
Bar to do the same job (there are many options with regard to budgeting
that); it is easily resolved by the DA in due course insofar as he may
exercise his prosecutorial discretion in choosing what to prosecute in
Juvenile Court, if anything. Thus, it is not a crisis.
With respect to the Juvenile Court's ethical problem (appearance of
impropriety in its conflict of interest in supervising the very witnesses
who testify against juvenile defendants--the probation officers, and the
intake officers who make charging decisions), that can only be resolved by
creating a "bright line" division between the judicial function and the
executive function of probation supervision--a constitutional Separation of
Powers issue; this cannot even be resolved for the County Attorney, the City
Attorneys, the School Board's attorneys and the Bar because it is inherently
a problem of the Juvenile Court itself. For this reason, this problem can be described as a
"crisis" with respect to contested juvenile cases if there is no resolution
soon--even uncontested cases are arguably tainted.
Jim Ramsey, District Attorney General
QUESTION: An article in The Knoxville News-Sentinel on January 1, 1999,
quotes two Anderson County Public Officials registering surprise
and dismay at your recent announcement of the decision to cut back on
juvenile court. I have seen your letter giving reasons. What is the
background?
ANSWER: Everybody who deals with juveniles in Anderson County has known of
these issues for a long time, the Juvenile Judge herself at least since 1995
when I raised the question of our attendance in her court and submitted a
report on the material legal issues prepared by our young law clerk from
Vermont Law School, Sean McBride (a native of Oak Ridge).
I have discussed with the County Attorney his several obligations respecting
juvenile law, and so have two of my staff, Jan Hicks and Beth Boatner. We
recognize his resource problems, which we share.
On November 5, 1998, I met at the Children's Defense Fund headquarters (Alex
Haley Farm) with Anderson County's "Truancy Workshop" for a discussion of
the problem. The Truancy Workshop is a committee of local educators,
juvenile probation officers (including Judge Hess) and others from among the
police, all three local school systems, and several volunteer agencies which
deal with youth in Anderson County.
Notes reflecting the proceedings at that meeting were sent forthwith to all
25 members of the Truancy Workshop, including Judge Hess, and the local press.
This meeting was reported in the Clinton Courier-News on November 11, 1998,
and so all the world has known about these issues and my impending decision
since that date. No one should be surprised, least of all these two
officials. A copy of that article is reproduced below.
Jim Ramsey, District Attorney General
QUESTION: DOES THE COUNTY ATTORNEY REPRESENT THE JUVENILE JUDGE WITH
RESPECT TO THE ISSUES REPORTED IN THE KNOXVILLE NEWS-SENTINEL JANUARY 1?
ANSWER: The County Attorney stands with respect to the Juvenile Judge in
the same relation as the District Attorney and the various City Attorneys,
that is, he is subject under Juvenile Court Rules to prosecute cases in his
own right for the State.
Therefore it is my opinion that the County Attorney has a conflict of
interest in that regard, whether any such dispute be strictly legal or also
political in nature.
The County Attorney must primarily represent Anderson County, not a
particular county official.
It would be the same, for example, when simply because an Anderson County
Commissioner claims status as a County Official and he or she therefore
expects the County Attorney to represent him or her in a dispute with the
Anderson County Commission, then he or she would be frustrated to learn that
the Commission itself preempts that claim of representation, by law.
Such a County Official would be free to seek the services of his or her
own private attorney if he or she deemed it necessary to do so.
Because the County Attorney is subject under the Rules to prosecute in
Juvenile Court upon request of the Juvenile Judge, he would be not subject
to representing the Judge in any dispute on that issue; rather, he would be
a party to the dispute himself.
Jim Ramsey, District Attorney General
QUESTION: THE COURIER FOR JANUARY 10/11 BEGINS ITS REPORT LURIDLY WITH THIS
STATEMENT, "AMIDST CHARGES AND COUNTER-CHARGES, DISTRICT ATTORNEY JAMES
RAMSEY IS DEFYING, ETC., ETC..." WHAT ARE THE CHARGES AND COUNTER-CHARGES?
ANSWER: I made a decision as District Attorney, based upon Judicial Ethics
Committee Advisory Opinion 98-05
forbidding the manner in which
the Juvenile Court currently operates, together with Ethical Consideration
7-13
requiring me to be satisfied with the fairness and propriety
of a case before proceeding.
The decision is within the authority of my office to make (See TCA 8-7-103(6)), and it is a duty
upon my oath to make it; further, the decision was duly communicated to the
relevant parties in customary fashion, and explained fully and completely in
open court last Wednesday, January 5.
If the reporter knows of a charge or counter-charge uttered from my lips or
from my pen, she has not confronted me with the words constituting it--and I
don't think she can.
I cannot speak for Judge Hess.
What this reporter has written is entertaining, but not very informative to
the public about what is going on in court.
Jim Ramsey, District Attorney General
QUESTION: JUDGE HESS SAYS HER STAFF HAS BEEN TOGETHER FOR 20 YEARS AND NOT
ONE HAS EVER HAD A DISCIPLINARY ACTION; AND THAT NOW SHE HAS TOLD THEM SHE
IS NO LONGER THEIR "SECONDARY SUPERVISOR" AND THAT SHOULD TAKE CARE OF THE
ETHICS PROBLEM. WHAT'S WRONG WITH THAT?
ANSWER: It is gratifying to see that Judge Hess recognizes the seriousness
of the Ethics Opinion and is attempting to do something about it.
However much the Judge disclaims supervisory relations with the entire
probation staff, nevertheless there is no doubt that she is their boss and
has the sole capacity to hire and fire them--which is the hallmark of
supervisory authority.
The Judge's deputy, Pat Swinney, is not an executive officer, nor is she
properly elected or appointed in her own right to stand alone and be a
supervisor independent of the Judge nor is she in the executive capacity
required by the Ethics Opinion, reflecting Canon 2.
Even if this were possible in theory, which it is not, the 20 years prior
working relationship of the Judge with the staff she hired precludes the
claim of independence in the same fashion which the U.S. House of
Representatives claims Monica Lewinsky's mere statement to the Grand Jury
disclaiming that anyone "told her to lie" at a certain point in time is
discounted by the lengthy prior relationship wherein she and the President
had earlier agreed in principle about how they were going to operate with
respect to the subject enterprise.
Remember, the Ethics Committee's Advisory Opinion and EC 7-13 together
require the DA to be satisfied with the integrity of the case before
proceeding, not the Judge, who is conflicted.
Jim Ramsey, District Attorney General
QUESTION: I SEE AT PAGE A6, CLINTON COURIER-NEWS, JANUARY 10/11, 1999, A
REPORT ON YOU AND JUDGE HESS ABOUT POSSIBLE "CONTEMPT OF COURT" OR "WRIT OF
MANDAMUS" WITH A REFERENCE THAT "...LEGAL DOCUMENTS REVEAL..." IS THERE A
LAWSUIT ALREADY PREPARED?
ANSWER: Apparently the reporter knows something we don't.
Last year about this time a lawsuit was prepared against the Sheriff of
Anderson County over an alleged raffle episode, then shown to the press and
never filed in court.
Such a tactic is very questionable, and cannot be answered by the subject.
The report asserts legal positions which are vastly misleading and simplistic.
If such a legal avenue is contemplated by some attorney injected into this
governmental policy matter, then the threshold issues will be very
complicated, indeed.
The controlling law is well settled.
In 1994 Justice Riley Anderson opined with respect to the extent of
discretion possessed by a district attorney general in Tennessee, in the
case of STATE VERSUS SUPERIOR OIL,INC., et al., 875 S.W.2d 658 (1994), page
4, quoting Chief Justice Henry in pertinent part as follows:
"He or she is answerable to no superior and has virtually
unbridled discretion in determining whether to prosecute and for
what offense. No court may interfere with his discretion to
prosecute, and in the formulation of this decision he or she
is answerable to no one."
Judge Hess relies upon TCA 37-1-124 for the
proposition that she and she alone determines who appears for the State in
her court
; but in so concluding, her rationale flies in the face of Burson's
Attorney General's Opinion No. U96-044, interpreting that same statute this
way: "At his discretion, the district attorney general may choose to
represent the State in juvenile court."
With reference back to Justice Anderson's opinion in SUPERIOR OIL, INC., an
issue of conflict of statutes is resolved this way (Anderson, p.3):
"...the challenge raised to the constitutionality of this
statute...is appropriate because the questioned statute directly
conflicts with the inherent prosecutorial discretion of the
district attorney general."
Thus, any contempt or mandamus lawsuit filed against the DA by the Juvenile
Judge would require notice to the State Attorney General, Paul Summers, of
its challenge to Article VI, Section 5 of the Tennessee Constitution
and bring in that office to defend these well established principles.
If General Burson's opinion were otherwise than to place the choice with the
DA and not the Juvenile Judge, then TCA 37-1-24, which gives Judge Hess
authority to request the County Attorney to represent the State as well as
the DA, would be entirely void.
So you can see what a mess such an adventure would create--certainly not in
the best interest of children in Anderson County.
Jim Ramsey, District Attorney General
QUESTION: IN THE BATTLE OF WHOSE LAW TRUMPS WHOSE LAW, WHO WINS?
ANSWER: "...although the General Assembly may enact laws prescribing or
affecting the "procedures for the preparation of indictments or
presentments, it cannot enact laws which impede the inherent discretion and
responsibilities of the office of district attorney general without
violating Article VI, Section 5 of the Tennessee Constitution." State v.
Superior Oil, Inc. 875 S.W.2d 658 (Tenn. 1994) at 661 (Anderson, J.)
That is why the AG's opinion interpreting TCA 37-1-124 in favor of the DA,
not the Juvenile Judge, keeps that statute from being unconstitutional.
Jim Ramsey, District Attorney General
QUESTION: WHO ARE YOU TO SAY WHAT'S UNCONSTITUTIONAL OR NOT?
ANSWER: "Ordinarily,the state attorney general and the district attorneys
general are under an affirmative duty to defend the constitutionality of
statutes of statewide application that may be relevant in given criminal
prosecutions. When, however, two relevant statutes in a case conflict with
each other or one appears to repeal another, and the prosecutor or attorney
general determines that one of the statutes is unconstitutional, that
official may challenge the constitutionality of the state statute." State v.
Chastain, 871 S.W.2d 661 (Tenn. 1994), at 667 (Anderson, J.)
In view of this and the other relevant law (EC 7-13, Constitutional
provisions, cases and statutes cited in AG Opinion U96-044, Judicial Ethics
Committee Advisory Opinion 98-05) I would be derelict not to challenge the
current management mode of the juvenile court staff with respect to my
representation of the State against defendants, for whom I have an
affirmative duty to assure fairness and the integrity of due process
safeguards.
Even though Juvenile Court is not a criminal court, nevertheless for
individual defendants, their liberty and property is at stake and the
outcome for them is at the mercy of the government.
Notably, that staff does not respond openly, completely, and in good faith
to the demands of my office as it participates in Juvenile Court (we were
once told that we "have no authority" to participate in "staffings" on
cases); this is the stuff of "Brady Material" (where the state must disclose
exculpatory to the defense).
Jim Ramsey, District Attorney General
QUESTION: WHAT IS THE BOTTOM LINE--DOES TCA 37-1-124 REQUIRE YOU TO SERVE
JUDGE HESS'S COURT AGAINST YOUR BETTER JUDGMENT, OR DOES TCA 8-7-101, et
seq., GIVE YOU DISCRETION?
ANSWER: Judge Hess's law is superseded by TCA 8-7-103, which sets
out the duties of the DA and was revised on May 19, 1998; it supersedes any
law in conflict with it including the one Judge Hess relies on, by whatever
interpretation--see sections (1) and (6), in particular.
At section 6 the DA is given discretion as to the allocation of his
resources, as follows:
"Each district attorney general: ... (6) Shall have discretion
in the performance of duties and responsibilities in the allocation
of resources available to such district attorney general, any
other provision of law notwithstanding..."
TCA Title 8 Section 7 at (1) authorizes the DA to serve municipal courts,
but only if they provide resources in terms of personnel--just what my
letter to Judge Hess points out with respect to her court.
In my opinion the juvenile court falls into the same category as municipal
courts under section (1), even though it is not specifically named, because
it is like a municipal court in all respects--it is not a criminal court, it
is locally funded, it serves the same constituency as the schools, and its
adjudications are merely civil violations with no criminal penalty
(although, of course, it can remove children from their homes).
Jim Ramsey, District Attorney General
QUESTION: IN KNOX COUNTY THEY ARE TOUGH AGAINST PARENTS IN TRUANCY
CASES--WE CAN'T DO ANYTHING IN ANDERSON COUNTY BECAUSE YOU WON'T PROSECUTE!
(Statement of an Anderson County truancy official)
ANSWER: We just indicted in the case of State v. Robert and Catherine
Blalock, docket number 99CR006(A)(B). Pay attention!
We can also take child abuse and other cases in Sessions Court.
Don't forget, the County Attorney, any Municipal Attorney, or any Attorney
not conflicted may prosecute State cases in Juvenile Court; so Judge Hess
has recourse if she will use it.
In view of the fact that any such defendant can appeal a Juvenile Court
decision and reroute any such case to the regular criminal process (even
Grand Jury), there is no point in spinning our wheels unless a plea is to be
entered.
It wastes the School's time and resources, too.
Jim Ramsey, District Attorney General
QUESTION: THE OAK RIDGER FOR MONDAY, JANUARY 11, 1999, AT PAGE 3A
QUOTES A CARROLL COUNTY JUVENILE JUDGE SAYING THAT "...HE KNOWS OF
NO OTHER ATTORNEY GENERAL IN TENNESSEE WHO IS TAKING THE SAME POSITION AS
ANDERSON COUNTY DISTRICT ATTORNEY GENERAL JIM RAMSEY." ARE YOU ALONE?
ANSWER: Only about half the district attorneys in Tennessee go to Juvenile
Court at all, and of those who do, their juvenile court judges honor AG's
Opinion U96-044
with respect to the DA's discretionary authority.
In the First Judicial District, in fact, the Public Defender does not go to
juvenile court, even though the law on public defenders contemplates that
while the law on DA's does not.
Also, of the juvenile judges who take advantage of TCA 37-1-162(a), there
seem to be none whose staff operate in the same manner regarding
"staffings", etc.
The DA's statewide are only now becoming aware of this problem--I first told
the new Acting Director of the DA's General Conference, Al Schmutzer of
Seviereville, about this problem just last Friday, January 8, 1999, when he
was chosen for this temporary position.
I know of no other juvenile judge in Tennessee who is taking the same
position as Anderson County Juvenile Court Judge Pat Hess.
Jim Ramsey, District Attorney General
QUESTION: WHAT IS THE ALLOCATION OF CRIMINAL JUSTICE RESOURCES MADE
AVAILABLE TO THE STATE PROSECUTOR IN KNOX COUNTY, FROM THE KNOX COUNTY
COMMISSION, IF ANY?
ANSWER: I don't know exactly, but DA Randy Nichols once told me that ten
(10) of his assistants are furnished by the Knox County Commission.
This is in addition to the State allotment, which is provided by a formula
related to population statistics.
There may also be additional supplements, such as salary supplements,
secretarial personnel, etc., provided for prosecution in Knox County--you
would have to ask the Knox County budget director.
One good thing about the scarcity of such County support for me here in
Anderson County is that I am in no way conflicted professionally or
"beholding" to the Anderson County Commission; I am pleased to have no such
appearance, even.
This is not to say that the Knox County DA is, nor that my office is
unwilling to cooperate with the various county offices, as we have done over
the years with good effect--presently my Assistant Beth Boatner is assigned
to the Code Enforcement Officer under the Anderson County Zoning Office.
Jim Ramsey, District Attorney General
QUESTION: TUESDAY'S OAK RIDGER, JANUARY 12, 1999, REPORTS ANOTHER
ORDER FROM JUDGE HESS REQUIRING THE DA'S PRESENCE IN COURT ON HER TERMS.
OBVIOUSLY, THE JUDGE DOESN'T BUY YOUR ARGUMENTS, AND I SEE YOUR ASSISTANT
WENT TO COURT IN SPITE OF YOUR VOW NOT TO PROCEED. EXPLAIN!
ANSWER: Yes, Judge Hess put down another order, and my office complied.
Keep in mind, we want to preserve our prerogative to go into that court when
necessary.
We have a responsibility to handle the pending cases we have already
accepted, and we have made discovery of the "Brady Material" (Judicial
Ethics Committee Advisory Opinion 98-05 and the local facts relating to it)
to the defense, and/or agreed in each case with the defense for a
satisfactory disposition of these remaining pending cases.
The terms of future exercise of discretion with respect to any new cases and
my duties under TCA 8-7-103(6), and those of the County Attorney,
City Attorneys, etc., are currently in discussion with the Judge.
If no satisfactory resolution obtains out of these negotiations, then
perhaps a Declaratory Judgment Action (as in the Oliver Springs case) will have to be filed to get a proper judicial resolution.
Once again, none of this use of judicial force is conducive in my opinion to
a good understanding of our justice process by the youth of Anderson County,
who are watching.
Jim Ramsey, District Attorney General
QUESTION: UNDER SCHOOL LAW, ATTENDANCE OFFICERS ARE REQUIRED TO REPORT
TRUANCY TO THE DA! IF YOU WON'T PROSECUTE IN JUVENILE COURT, HOW ARE WE
SUPPOSED TO DO OUR JOBS?
ANSWER: TCA 49-6-3010(a), JURISDICTION OF SCHOOL ATTENDANCE CASES.--"Each
judge of a juvenile court or court of general sessions is vested with power
to hear all cases coming within the provisions of this part; provided, that
in all cities maintaining a separate system of schools, the city recorder or
city judge may try such cases coming within such official's jurisdiction."
So you can see that ANY JUDGE IN ANDERSON COUNTY can handle truancy cases;
pursuant to TCA 49-6-3007 it is the Attendance Officer's duty to
report the defined problem to certain executive agencies (police or DA), who
then make routine prosecutorial decisions consistent with regular principles
of law--we already have attorneys attending sessions courts, and will handle
truancy and other appropriate juvenile matters there as the general law
provides.
At that point the school's responsibility is subordinated to the law
enforcement system and the attendance officer becomes a State witness.
Judges of the sessions and municipal courts recited above then proceed
according to the same rules of juvenile procedure Judge Hess uses, and of
course, the County Attorney, City Attorney or any attorney (school board)
may prosecute.
Look to Roane County as a model.
It would be a very efficient use of resources (communication with educators
in case preparation) for the school's to work in this capacity with their
regular staff attorneys: Jim Webster for Oak Ridge in Judge McNees' court,
Judge Murch's court or Judge Hess' in OR, Jerry Shattuck for Anderson County
Schools in Judge Layton's court or Judge Hess' court, or an ad hoc attorney
for Clinton City's schools in Judge Ridenour's Court, Judge Layton's court,
or Judge Hess' court.
TCA 8-7-103(6) gives the district attorney discretion in that
regard, and we are willing to help in any way we can (I was a school teacher
for three years before law school, and my wife has been a teacher for almost
30 years, so we understand the need for stern backup of a teacher's
disciplinary efforts in class!).
Jim Ramsey, District Attorney General
QUESTION: IS YOUR OFFICE THE ONLY PART OF THE JUVENILE JUSTICE SYSTEM
SUFFERING SCARCE RESOURCES?
ANSWER: No. Juvenile issues are serious everywhere in the legal system and
everywhere in the State--it's just that I am taking action for change.
And it is not just resources--the law is ineffective, too (how often have
you heard that "nothing ever happens to juvenile delinquents"?).
No matter what a juvenile is charged with (burglary, robbery, rape), unless
he or she qualifies to be transferred to adult court (TCA 37-1-134),
the only finding possible for the juvenile court is "delinquent"; it is a
civil judgment, and a probationary sentence is virtually always rendered
since you cannot jail juveniles with adults and there are not enough youth
facilities--doesn't seem like much to the victim, doesn't seem like much to
the schools, and doesn't seem like much to the DA.
The Oak Ridger reported in its Tuesday, January 12, 1999, issue about the efforts of the Juvenile Justice Reform Commission to make
the system more effective. I hope those efforts do more good than harm.
Jim Ramsey, District Attorney General
QUESTION: THURSDAY'S OAK RIDGER, JANUARY 14, REPORTS THAT YOU
FLAT REFUSED TO GO INTO JUDGE HESS' COURT ANYMORE, IN TWO SEPARATE LETTERS,
AND YET YOUR ASSISTANTS DEFIED YOUR ORDERS AND WENT ANYWAY! WHO'S IN
CHARGE? ARE YOU COMING OR GOING, OR DO YOU KNOW?
ANSWER: The reporter seems not to know.
The Clinton Courier-News for January 3/4, 1999, reported our position accurately.
The letters are posted on this web site for you to read for yourself: I have
been consistent at all times in explaining to the Judge and to the public
how we intend to proceed, first in the November, 1998, Truancy Workshop
meeting
, then in the December, 1998, letter
to Judge Hess
, then in the explanatory letter
of January 12.
At all times we have offered to cooperate and have complied with Judge Hess'
orders even though we disagree with them, while we undertake to appeal them
as soon as possible in the interest of the orderly administration of
juvenile justice.
This public policy issue is of interest to all parents and educators, as
well as to victims of juvenile crime and taxpayers who are interested in the
wise allocation of criminal justice resources.
Jim Ramsey, District Attorney General
QUESTION: WEDNESDAY'S OAK RIDGER, JANUARY 20, 1999, QUOTES COUNTY ATTORNEY
DAVID CLARK SAYING, "JUVENILE COURT IS NOW AT A STAND-STILL..." IS THAT RIGHT?
ANSWER: Gosh, no.
There is all kinds of routine work going on in that court.
Our office attended to business Wednesday morning and Wednesday afternoon,
pursuant to our position consistently expressed on this web site and elsewhere.
There are Department of Children's Services (DCS) representatives in there
doing foster care work, Child Support attorneys doing deadbeat dad
collections, and much more.
Even if our office were not there as erroneously suggested, criminal
prosecutions are less than five percent of the caseload in that court.
There is no need for such alarmist talk.
Jim Ramsey, District Attorney General
QUESTION: COUNTY ATTORNEY DAVID CLARK EXPLAINS TO THE COUNTY COMMISSION AS
REPORTED IN WEDNESDAY'S OAK RIDGER, JANUARY 20, 1999, THAT AS BETWEEN
REPRESENTING A COUNTY OFFICIAL AND REPRESENTING THE COUNTY COMMISSION, HE
MUST CHOOSE THE COUNTY OFFICIAL. IS THAT RIGHT?
ANSWER: No. The County Attorney in virtually all states represents the
County as a corporate entity, first and foremost. See Harold W. Kennedy,
County Counsel, Los Angeles County, California, "County Organization And
Management", Chapter 25, Legal Functions, circa 1970.
In Tennessee, for example, TCA 8-20-101, et seq. provides that certain
County Officials may file "salary suits" against the County in order to get
appropriations from the County's general fund to pay for the operation of
their offices out of fees collected.
Seven such offices do that: the Sheriff, the Register of Deeds, the Tax
Assessor, the County Court Clerk, the Clerk and Master, the Trustee, and the
Clerk of the Circuit and Sessions Courts.
While there is a provision in that law for agreement, nevertheless when
there is a dispute, then the officeholder hires an attorney to be plaintiff
and the County Attorney represents Anderson County, his client being the
defendant in the salary suit--the County Executive.
Thus, when there is a dispute between an officeholder and the County, the
County Attorney must represent the County as a corporate entity.
When I was County Attorney, I defended Anderson County against the Sheriff
in the case styled, H.H. "County" Hill, Sheriff of Anderson County v. Albert
Slusher, Administrator, 524 S.W.2d 652 (1975), and the Sheriff's lawyer was
the Honorable J. Carson Ridenour--he whupped me.
Jim Ramsey, District Attorney General
QUESTION: I SEE WHERE THE COUNTY ATTORNEY IS RECOMMENDING ANDERSON COUNTY
TAKE ACTION (Oak Ridger - January 20) ABOUT YOUR OFFICE IN THE
COURTHOUSE. IS HE ON POINT?
ANSWER: Mr. Clark makes a very interesting point, with much validity.
Interesting that he is advising the County with regard to its resource
options vis-a-vis the juvenile court.
This advice is notwithstanding his disclaimer in the same article of any
representative capacity in behalf of the County against the juvenile judge's
claims, citing a "confidential relationship" which requires him to choose
the juvenile judge, who is making financial claims against the County's budget.
When the fee offices make claims against the County's budget, the County
Attorney is contemplated to represent the County, not the officeholder (TCA
8-20-101, et seq.).
Jim Ramsey, District Attorney General
QUESTION: AS A TAXPAYER I RESENT MY CRIMINAL JUSTICE DOLLAR BEING DIVERTED
TO JUVENILE COURT. HOW MUCH DOES THE COUNTY SPEND PER JUVENILE COURT CASE,
ANYWAY, AND WHAT GOOD DOES IT DO? --Victims Rights Advocate
ANSWER: You are right to care about the thoughtful allocation of
prosecutorial resources.
Cost/effectiveness analysis is a valid part of public policy making.
We prosecute crime, and juvenile court cases are not criminal cases.
With rare exceptions, criminal cases are in the Criminal and Sessions courts
and take priority.
We represent the State of Tennessee and are primarily funded by the
Legislature, but the juvenile court is a product of Anderson County and
obtains its resources at the pleasure of the Commission.
The primary duty of the district attorney general is to enforce the criminal
laws of the State; however, while we are engaged in prevention policies we
are not social workers.
Since prosecutorial resources are scarce, it is incumbent upon the DA to
prioritize.
That's why the Legislature in its infinite wisdom enacted TCA 8-7-103(6), giving the duly elected district attorney general sole discretion
in the allocation of available prosecutorial resources, "any other provision
of law notwithstanding."
TCA 37-1-124(b) gives the juvenile judge her resources at the local
level, if she will utilize them.
This latter statute is very likely the "...other provision of law
notwithstanding..." which the former statute contemplates in giving the
district attorney general the prerogative to go into juvenile court, in his
sole discretion. See Attorney General Opinion U96-044, June 5, 1996.
For the juvenile judge to make discretionary prosecutorial decisions is a
violation of the Separation of Powers principle, and is the very issue
addressed in the recent Ethical Opinion forbidding the judge from
exercising certain executive supervisory functions.
With respect to the question of local Anderson County budget allocations for
juvenile counselling dispositions, you will have to ask the County's Budget
Director--or perhaps the schools' or the cities' budget directors, since
they are often the beneficiaries of these expenditures (are they not the
most vociferous protesters of my recent decision to prioritize?).
Also, you can check with other similar counties for comparison to their
priorities.
Jim Ramsey, District Attorney General
QUESTION:THE OAK RIDGER DATED FEBRUARY 3, 1999, REPORTS JUDGE
HESS SAYING, "...SHE HAD NOT BEEN CONSULTED WITH EARLIER ABOUT THE MEETING
OR SHE WOULD HAVE TOLD HIM ABOUT THE CONFLICT IN SCHEDULE." HOW CAN
EDUCATED FOLKS BE SO FOULED UP?
ANSWER: It's the spin game--there's a lot of that going around.
Interestingly, Judge Hess ignores the invitation to that same meeting which
the County Executive's lawyer, George Buxton, had issued 96 hours earlier.
The previous week Mr. Buxton had immediately invited us all again, after
Judge Hess had begged off the first scheduled meeting at his office.
Her absence on that occasion was on an excuse of the County Attorney's
sudden unavailability to accompany her (the first aborted meeting had been
scheduled at a time picked by David Clark in the first place).
In the Oak Ridger statement, Judge Hess ignores the Executive's earlier
invitation to the second meeting (the one set Tuesday, February 2) for
purposes of public consumption in order to seize selectively upon my
parallel confirming invitation sent later, on Monday, as being too late for
response.
It makes me wonder why I tried to be helpful.
There has been plenty of "consultation."
Jim Ramsey, District Attorney General
QUESTION: WHY ARE YOU AGAINST PROSECUTING CHILDREN FOR TRUANCY?
ANSWER: How does it help children to bring down the awesome power of the
State on them for truancy or unruly behavior?
When you look behind these cases most often you find a deadbeat dad and a
single mother working starvation wages on the night shift, simply unable to
attend to her child as you would.
Or perhaps there is an emotional problem involved, such as the death of a
schoolmate, making it traumatic for the child to deal with school.
These cases are candidates for counselling, not prosecution, and other
remedies are more appropriate except in the most exceptional cases.
When prosecution is appropriate, the Department of Children's Services and
the schools have their own attorneys who are more likely to be familiar with
the cases and with school system exigencies.
Also, we preserve our prerogative to intervene in juvenile cases in our
sound prosecutorial discretion pursuant to existing law.
We must set priorities, given our limited resources.
We do prosecute adults when they violate their criminal law obligations with
respect to their children's truancy.
Jim Ramsey, District Attorney General
QUESTION:HOW DOES JUDGE HESS GET AROUND THE WORD "...NOTWITHSTANDING..."
IN TCA 8-7-103(6)?
ANSWER: Now that two lawsuits are headed for court, we will
have to wait for her legal response to know the answer to that question.
Jim Ramsey, District Attorney General
QUESTION: THE OAK RIDGER DATED FEBRUARY 3, 1999, REPORTS JUDGE
HESS SAYING, "...SHE COULD NOT ATTEND THE TUESDAY MEETING BECAUSE SHE WOULD
BE ON THE BENCH." HOW CAN JUDGE HESS BE ON THE BENCH WHEN THE DA IS NOT
PROSECUTING IN HER COURT? --WAITING FOR HER AT BUXTON'S OFFICE! ISN'T THE
JUVENILE COURT "AT A STANDSTILL?"
ANSWER: Very little of what the Juvenile Court does requires the presence
of a prosecutor.
When we're in Juvenile Court, it is the DA's office that is "at a
standstill" and it is for that reason we must prioritize our allocation of
resources.
Jim Ramsey, District Attorney General
QUESTION: JUST HOW CLOSE TO THE TRUTH IS THE FEBRUARY 7/8, 1999, CLINTON
COURIER-NEWS ARTICLE ON PAGE 5, LEADING OFF WITH A CHARACTERIZATION OF THE
JUVENILE COURT ISSUE BY SAYING IT, "...HAS BECOME LITTLE MORE THAN A POWER
STRUGGLE OVER JUVENILE COURT..."?
ANSWER: The reporter is right on! The DA is "struggling" for less power.
Jim Ramsey, District Attorney General
QUESTION: A LETTER TO THE EDITOR IN THE OAK RIDGER
AUTHORED BY JULIE L. CRIST, PUBLISHED ON FEBRUARY 8, 1999, URGES, "DON'T CAST YOUNG OFFENDERS ASIDE". WHY DON'T YOU AGREE?
ANSWER: Of course I do agree.
See my response to a similar question above.
What I'd like to know is why don't the other attorneys named in TCA
37-1-124(b) agree?--that's the law Judge Hess relies upon in ordering me to do it.
The County Attorney, any City Attorney, any School Board Attorney, or any
attorney at all can prosecute the cases we don't under our guidelines.
(See our letters to Judge Hess on September 3, 1998 and January 12, 1999; the press release of January 18; and the question/answer, above, regarding diversion of resources.)
Jim Ramsey, District Attorney General
QUESTION: THE COUNTY ATTORNEY HAS FILED AN "AFFIDAVIT OF INCOMPETENCY" IN
JUVENILE COURT, AND IT IS FOR THAT REASON THAT JUDGE HESS DOES NOT APPOINT
HIM TO PROSECUTE JUVENILE CASES--CALLING HIM "INEXPERIENCED". WHY DOESN'T
SHE APPOINT CITY ATTORNEYS, WHO ARE ALSO NAMED IN THE LAW SHE RELIES UPON,
TCA 37-1-124(b), OR SCHOOL ATTORNEYS, WHO ARE VERY EXPERIENCED IN
JUVENILE MATTERS?
ANSWER: It is my understanding that the city attorneys and school board
attorneys say that it is "not in their job description" to prosecute
juvenile cases.
Interestingly, it is not in the DA's job description to prosecute juvenile cases either,
but that has not stopped Judge Hess from requiring it of me by Court Order.
Since the schools are very concerned about "the future of our children" (to
quote Commissioner Mark Alderson from the Operations Committee meeting on
Friday, February 5, 1999), they could easily change the job description by
board action, if that would make any difference.
It wouldn't cost the County, as Judge Hess' appointment of a private
attorney in disregard of other options will do.
Jim Ramsey, District Attorney General
QUESTION: JUDGE HESS APPEARED FRIDAY, FEBRUARY 5, AT THE OPERATIONS COMMITTEE MEETING IN CLINTON WITH AN ENTOURAGE OF SUPPORTERS AND
CHEERLEADERS--MAINLY HER JUVENILE PROBATION STAFF AND THEIR KIN. WHOM IS
SHE SEEKING TO INFLUENCE AND WHAT RESULT IS SHE SEEKING TO ACHIEVE?
ANSWER: Those who bleat the shibboleth, "Our children's future is at
stake," are very unlikely to influence the District Attorney General, who is
charged under TCA 8-7-103(6) with the discretion to allocate his
prosecutorial resources, "...notwithstanding any other law," in the best
interest of the whole justice process.
TCA 37-1-124(b) is contemplated to give the Juvenile Judge what she
needs for her limited purposes, if only she will use it.
Of course the justice process is critical to the future of our children! So
what's new?
Ad hominem themes are demeaning to most thinking people who are serious
about these issues, and effective only to cloud the picture.
The cheerleading sessions will only bring on more incoherent palaver and
more "spinning of wheels in the sand"--it is very interesting to scrutinize
the agendas of those making the most noise, and their competence to judge!
Unless it is an attempt to influence some jury (and it is not election
time), I can think of no benefit resulting from the rallies.
I cannot speak for Judge Hess as to the result she hopes to achieve, but I
can say that the DA's office stands consistently behind its proposal to
serve the Juvenile Court's needs
insofar as it can be done efficiently.
Jim Ramsey, District Attorney General
QUESTION: THE RESULT JUDGE HESS SEEKS IS FOR THE COUNTY TO FUND YOU A SPECIAL PROSECUTOR FOR HER COURT, DUMMY!
ANSWER: The DA's office doesn't want anything from the County Commission.
We could serve Juvenile Court as is, if it were handled as efficiently as
the other courts we serve.
Jim Ramsey, District Attorney General
QUESTION: WHY WON'T THE SCHOOLS SEND THEIR ATTORNEYS INTO JUVENILE COURT IN
THE CASES THEY CARE ABOUT? WHY WON'T JUDGE HESS ASK THEM TO, UNDER TCA
37-1-124(b)?
ANSWER: Beats me.
Jim Ramsey, District Attorney General
QUESTION: YOU SAY TCA 8-7-103 BECAME LAW MAY 19, 1998--DID OUR LOCAL
LEGISLATORS, GENE CALDWELL AND RANDY McNALLY, VOTE FOR OR AGAINST IT?
ANSWER: TCA 8-7-103 was passed unanimously.
Jim Ramsey, District Attorney General
QUESTION: WHO IS DENNIS FRANCIS, THE KNOX COUNTY LAWYER JUDGE HESS HIRED TO REPRESENT HER AGAINST THE REX LYNCH COMPLAINT,
AND WHY DIDN'T SHE GET AN ANDERSON COUNTY LAWYER?
ANSWER: See the Knoxville News-Sentinel for Sunday, February 14, 1999, at page B1,
where this Knoxville attorney is referenced as, "...longtime
Democratic activist, Dennis Francis..."
Jim Ramsey, District Attorney General
QUESTION: WHY IS THE JUVENILE COURT STAFF SO LARGE, AND WHY DOES THE COUNTY PAY FOR IT?
ANSWER: There is a large social work component to the Juvenile Court, above and beyond any law enforcement function.
Years ago there was a local bureaucrat who administered a
youth-related educational facility in Anderson County, and every time his
budget came up for review at the County Commission he would smirk and say to
voting members who questioned his funding, "What are you going to do when I
march in ALL THE LITTLE CRIPPLED CHILDREN?"
This cynical expression became the mantra of this agency, and its budget was
untouchable.
Nobody in government wanted to be characterized as "against children" by
voting to limit the resources of this bloated agency, regardless of any
justification in rationality.
At last it collapsed from its own weight, and no longer exists.
Jim Ramsey, District Attorney General
QUESTION: I WATCHED COUNTY COMMISSION ON CABLE TV. DO YOU SUPPOSE LARRY
DICKENS' MOTION TO GET A CTAS OPINION ON THE DUTIES OF THE DA WILL RESULT IN
ANYTHING DIFFERENT FROM THE EXISTING AG'S OPINION ATTACHED TO YOUR
DECEMBER 29 LETTER TO JUDGE HESS?
ANSWER: No.
Jim Ramsey, District Attorney General
QUESTION: IF CTAS GIVES AN OPINION CONTRARY TO THE AG'S OPINION,
THEN WILL THE COUNTY COMMISSION GET A PRIVATE ACT PASSED REQUIRING YOU TO
ATTEND JUVENILE COURT DESPITE YOUR DISCRETION UNDER TCA 8-7-103?
ANSWER: Well, if they make that attempt they might as well also require the
US District Attorney to attend juvenile court in Anderson County--heck, why
not go for Kenneth Starr?
Jim Ramsey, District Attorney General
QUESTION: IN ANSWER TO A QUESTION BY ALBERT SLUSHER, THE COUNTY ATTORNEY
STATED TO THE COUNTY COMMISSION AT ITS LAST MEETING THAT HE DOES NOT FEEL
QUALIFIED
TO PROSECUTE IN JUVENILE
COURT (EVEN THOUGH PURSUANT TO TCA 37-1-124(b) HE IS NAMED AS ONE
THE JUDGE CAN REQUEST) "BECAUSE HE DOESN'T DO MUCH CRIMINAL LAW..." IS THE JUVENILE COURT A CRIMINAL COURT?
ANSWER: No. See TCA 37-1-133 ORDER OF ADJUDICATION--NONCRIMINAL.
"Until a juvenile has been 'transferred' to the criminal court, the
proceeding against him is civil in nature and appellate review and
supervision of the cause resides in the civil and not the criminal courts of
the state." State v. Womack, 591 S.W.2d 437 (Tenn. Ct. App. 1979).
Jim Ramsey, District Attorney General
QUESTION: SUNDAY'S KNOXVILLE NEWS-SENTINEL, FEBRUARY 21, 1999, ANDERSON
COUNTY SECTION, REPORTS TWO ARTICLES, ONE HEADLINED, "VANDALS HITTING
SCHOOLS HARD," AND THE OTHER LINKED TO IT BY AN "INSIDE" BOX, TEASING AS
FOLLOWS: "LACK OF PROSECUTORS CREATING BACKLOG OF JUVENILE CASES/AC2", THE
LATTER CITING COMMISSIONER JACKIE HOLLOWAY FOR THE PROPOSITION THAT CASES "HAD TO BE
DISMISSED BECAUSE OF LACK OF PROSECUTION." I THOUGHT YOU WERE PROSECUTING
THE JEFFERSON MIDDLE SCHOOL VANDALISM, AND ALL FELONIES AND ADULTS --NOT SO?
ANSWER: We are. See the PRESS RELEASE dated January 18, 1999,
which my office released explaining our policy.
It is convenient for some to ignore these "stubborn facts", which in the end
will not go away.
The press release was reported by The Oak Ridger on January 18 , but
not the others, so it is understandable that the community would be only
partially informed.
Of course, it does not help that Judge Hess has declined to use
prosecutorial resources available to her under TCA 37-1-124(b), at
no expense to the County.
Jim Ramsey, District Attorney General
QUESTION: THAT SAME SENTINEL ARTICLE (FEBRUARY 21, 1999) REPORTS THAT
ASSISTANT DA BETH BOATNER "...WAS IN COURT THAT DAY AND ANNOUNCED SHE HAD
BEEN TOLD NOT TO PROSECUTE." YOU CAN SEE WHY THE COMMUNITY IS CONFUSED!
ANSWER: Yes, it is unfortunate that, clear and simple as they are, the issues have nevertheless been "dumbed
down" by those who have an agenda not relevant to the legal case.
In fact General Boatner was there and, consistent with our written
policy
, informed the court those cases were not
ours, that we had not entered an appearance per her rule, and that others
under TCA 37-1-124(b) could prosecute (Judge Hess had said, "You
leave me no alternative but to dismiss...").
Judge Hess seized upon that as an "appearance" to set up the "12 cases
dismissed" scenario as a softball for
Commissioner Holloway to hit out of the park.
This obfuscation and demagoguery is shameful.
Jim Ramsey, District Attorney General
QUESTION: WELL, HOW BIG IS THE BACKLOG?
ANSWER: There is no backlog.
Jim Ramsey, District Attorney General
QUESTION: HOW COULD JUDGE HESS ALLOW YOUR CASE AGAINST HER TO COME TO DEFAULT?
ANSWER: In my opinion she is relying exclusively upon her political
posture.
It is unfortunate that such a strategy ignores both the law and the facts.
The future of our children is at stake and we must not allow young offenders
to be cast aside.
Jim Ramsey, District Attorney General
QUESTION: WOULDN'T IT SEEM TO BE IN THE BEST INTEREST OF THOSE WHO CARE
ABOUT CHILDREN TO PRESERVE THE GOOD WILL OF THE DISTRICT ATTORNEY AND NOT TO
GO OUT OF THEIR WAY TO ALIENATE HIM? AFTER ALL, STATE AND FEDERAL GRANTS FREQUENTLY COME THROUGH HIS
OFFICE--AND ISN'T IT THE PREROGATIVE OF THE DISTRICT ATTORNEY TO GO INTO
JUVENILE COURT WHENEVER HE SEES FIT, WHETHER THE COUNTY COMMISSION SETS UP A
"JUVENILE SERVICES COMMITTEE" OR NOT?
ANSWER: The sincere people know they have my good will.
The "Parent-to-Parent" drug prevention grant operated through the Oak Ridge
Schools is sponsored by grants obtained through my office.
My Assistant DA, Beth Boatner, is a former member of the Board of Directors
of VORP (Victim/Offender Reconciliation Program), which works with youthful
offenders.
I myself am currently a member of the Executive Board of the Great Smoky
Mountain Council of the Boy Scouts of America, and a rowing coach for juniors.
|
Also, this DA received an award last
year from the Children's Advocacy Network (formerly CREAM) for beneficial
participation.
|
 |
Not to worry.
Jim Ramsey, District Attorney General
QUESTION:
NOW THAT MORE THAN A YEAR HAS PASSED SINCE JUDGE HESS' ORDER
REQUIRING ALL TRAFFIC TICKETS ON JUVENILES TO BE BROUGHT NOT TO
CITY COURTS AS BEFORE, BUT TO JUVENILE COURT, WHAT HAS BEEN THE EFFECT?
ANSWER:
The City Courts of Oak Ridge, Oliver Springs, Norris, Lake City and
Clinton have been shut down with regard to traffic tickets on juvenile
offenders (speeding, red light violations, etc.) and no such tickets have
been taken to Juvenile Court since it is too time-consuming, expensive and
wasteful for the police to leave their beats at home and prosecute in
Juvenile Court.
Even if they did, no traffic record would be created as before in the city
courts
.
Sometimes now, the police just call their parents, which is probably more
effective anyway.
Jim Ramsey, District Attorney General
