Tue
Dec 11 2007
12:28 pm

Let's break out one of the issues WC listed so it can have a separate discussion - as the members of this forum may desire - that of the office of constable.

"Constables are good but have the potential abuse and generating bad press for Roane County. The County Commission has voted to have the position eliminated by state legislative action, and a lot of folks think there's middle ground here."

Did they actually vote to eliminate by legislation at the state level and when did they do that? I was at the last Commission meeting, and they voted to fill the vacant position. At that meeting they said they would look further at whether or not the position should continue to exist in Roane County OR if it should be changed (i.e. law enforcement powers removed) yet continue to exist in Roane County. I am unaware of a subsequent County Commission meeting at which they voted to start the legislative process to do away with the office. Did they do that? When?

Based on the clarifications of law so kindly pointed out by Mark Foster, the only way either action can take place regarding constables in Roane County is for the County Commission to have the legislators enter and pass a private act for Roane County that would take either action. It can't simply be done by a resolution of the County Commission, based on the population exemptions Mark has explained to us.

So what are the reasons to do or not to do either one of these possibilities?

RB

Private acts heppen all the time...

What Mark said was that it would take a private act of the legislature, on behalf of Roane County, to do either one, since the ability to do either by an act of the local legislative body was insufficient. Counties have the state legislature pass private acts for them on a pretty common basis. Private act is kind of a misnomer, as it is a public act or law, in truth. But it has been done for years in Tennessee. There are private acts passed probably every General Assembly.

I do have a question - and not by way of disputing you, but by way of clarification and/or enlightenment (can't tell if you're the same "Anonymous" I've been talking to or not).

"They [law enforcement powers of constables] are part of a vital checks and balances system."

Explain how they are checks and balances and explain how they are vital checks and balances. What are instances (historical) of the existence of LE powers of constables where they have provided checks and balances against the LE powers of deputy sheriffs or municipal police officers.

How common are writs of replevin these days? I remember when they were quite common. I've known of times when even deputy sheriffs would go get reinforcements if they needed to physically enforce replevin. But I don't hear of that remedy being used much any more. Am I wrong? That's an example, but is it a reasonable and realistic example of the needs of a constable in 2007? How many writs of replevin are they issued in a year's time?

Writs of execution don't require a lot of strong-arm power, do they? And LE powers are not necessarily the same as the rights of self protection, are they?

Again - I must ask: How common are writs of execution, eviction, or faire facias these days? How often have they or orders of protection been issues to constables?

RB

Attribution

RB, please link to my earlier remarks if you are going to use my name as a reference. You are quite energetic in your posting, and I don't want to discourage that, but I don't necesssarily always have time to chime in and correct what you are saying.

Here, for instance, there is a distinction between private acts of the General Assembly and public acts of the General Assembly affecting population bracket legislation (the latter could affect only Roane County, depending on the drafting). I'm not comfortable with your description of the distinction.

The reason I am asking that you link to my earlier remarks if you are going to use my name is that I don't want people to think you are referring to some off-Roaneviews remarks I have made to you. As far as I know, we have never talked off of this forum.

Seems fair enough to ask

The link can be easily copied by placing the cursor over the title of a post or comment and "copying shortcut" which is different for Macs and PC's. (right click for pc, dunno Mac)

That little globe with the two chain links icon above is the Link operator. Highlight the words you want to be in the link and click the link icon. and paste the link in the first line. click OK and there ya go.

Seems fair enough to ask

The link can be easily copied by placing the cursor over the title of a post or comment and "copying shortcut" which is different for Macs and PC's. (right click for pc, dunno Mac)

That little globe with the two chain links icon above is the Link operator. Highlight the words you want to be in the link and click the link icon. and paste the link in the first line. click OK and there ya go.

grinning... I got it the first time, WC

repetitively redundant LOL

RB

Guilty as charged, Your Honor...

I was recalling from memory, my best recollection, a thing which I thought attorneys often counseled their clients to do. Since posting here seems like more of a conversation than a legal brief (which I would never type without citations), I thought doing that would suffice, based on a good faith effort on my part. Obviously I was wrong. Mea culpa.

I have an established history of accepting legal correction from you, Mark, and this would make no exception. I write - honestly - what I think is correct, and, if I am expressing a legal opinion, I always have stood ready to be corrected by you or any other attorney, as the qualification to express legal opinion is obviously superior. I appreciate your presence here.

Wherein did I err?

If I may clarify:
1) Private acts do happen all the time, don't they? And do they not happen when a local legislative body asks their state legislators to introduce and pass something affecting their locale? An example would be saying that Roane County specifically could (or could not) do this or that.
2) Public acts with all those confusing and obfuscating population classes also happen, apparently with some degree of regularity. As I understand what you told me in an earlier post, Roane County cannot opt by action of the county legislative body to change the office of constable or do away with it because Roane is one of the counties included in one of the population classifications prohibiting such in one such act.
3) Since a public act prevented Roane County from exercising any option regarding constables, then it would take a private act to allow that, would it not?

That's where I was trying to head.

I'll understand if you wish to renounce all contact with me. I guess I'm a pain. Don't mean to be, but am told I am from time to time.

RB

Guilty Plea Accepted

Your guilty plea is accepted.

To be clear, I did not, as you suggested above, say that

"the only way [abolition of the office of constable in Roane County or stripping that office of law enforcement powers] can take place regarding constables in Roane County is for the County Commission to have the legislators enter and pass a private act for Roane County that would take either action."

I also did not, as you suggested above, say that

"it would take a private act of the legislature, on behalf of Roane County, to do either [of abolition of the office of constable in Roane County or stripping that office of law enforcement powers]"

The closest things I said to this were that:

"[Roane] county commission cannot abolish the office of constable under T.C.A. 8-10-101(a)(3)(a)"

And that

“we cannot [abolish the office of Constable altogether] at the County lev[e]l under T.C.A. 8-10-10(a)(3)(A). ... If Roane's General Assembly members want it done, though, then it can be done at the State level.”

I didn’t say what you said I said. If I had said what you said I said, I would have been wrong. So I’m glad you pled guilty, because I was not wrong. Instead, what were wrong were the things you said I said.

I have nothing else to say.

I messed up, and want to try to clarify...

I will attempt to clarify myself.

When I said "it would take a private act of the legislature, on behalf of Roane County, to do either [of abolition of the office of constable in Roane County or stripping that office of law enforcement powers]" my thinking was related to what Mark said (as he himself quoted in his above posting) "we cannot [abolish the office of Constable altogether] at the County lev[e]l under T.C.A. 8-10-10(a)(3)(A). ... If Roane's General Assembly members want it done, though, then it can be done at the State level."

My THINKING was that what Mark said referred to a private act, which is a mechanism [sometimes] used when a county needs something enacted by the state legislature, and asks its representatives in the General Assembly to get it done on the County's behalf. My understanding was that I was being corrected by Mark, as my erroneous belief had been based on misinterpretation of the population class limitations in the piece of law under discussion, and that Mark's correction was referring to a private act, since the County Commission couldn't do it.

I've still not been told that I was wrong in believing that the way the General Assembly members representing Roane could make it happen is by a private act. But I haven't been told I was right, either. So it could be either way. May be right, may be wrong. But at the time it seemed to me that what Mark said pointed in the direction of a private act.

So I (we) still haven't been told exactly what kind of act would have to be passed by the General Assembly at the request of its Roane County members. I don't guess it matters. Suffice it to say it could be done if the County Commission asks them to.

I'm sorry I misunderstood Mark. It was an honest mistake. And having misunderstood him, I compounded my mistake by repeating my misunderstanding. All I can do is say what I've said: I've accepted responsibility for the mistake.

This form of communication, as pointed out by OneT (where IS OneT, anyway?), is like a free-flowing conversation but without the benefit of facial expression, tones of voice, and body language to assist with interpretation. We can't see each other smile, or look earnest, or look surprised, or look quizzical. So we miss a lot. I'm not saying that to try to claim I didn't err. I'm only saying it to emphasize that I made my error honestly, with negative intent.

With true regrets,
RB

Update - edited by author. Only intent is to explain myself, and assure that I made my mistake in communication about Mark (and to him) absolutely without intending to. I understand that I misinterpreted what he said, and because of that misunderstanding, misrepresented what he really said.

Clarification

Thanks for the clarification, RB. We're fine.

I'll try to address the private act issue you've raised Friday if I get a chance, but I think the bottom line for purposes of the constable office is that if the General Assembly wants to get rid of Roane County Constables, they can do it. The Roane County Commission cannot under current law.

I have never questioned the historical aspect of the constable.

In fact, I have pointed it out. It is ancient, as is the sheriff.

What I was asking for, however, was some contemporary instance of when having the office of constable did provide vital checks and balances related to law enforcement powers. And I'm assuming by use of the word "vital" that "vital" would at least imply checks and balances not available otherwise.

If I am interpreting what you mention in your last paragraph correctly, you're talking about supplemental availability of law enforcement capacity within the constabulary district. Did I get that right?

RB

Whatever kind of act we need...

It will wait until next year. And frankly I'm ok with that.

I think some of the Commisioners are a bit bloodthirsty, and need to think about things. (A pat on the back to Commissioner Chris Johnson for his statement about the 12 day waiting period being there for a reason.)

(update: edited for clarity)

It will wait until next year.

Absolutely, WC. Purty much has to wait, anyway - which as you point out can be good.

I've always thought Chris Johnson had a good head on his shoulders. There's nothing about this they can't do as well or better with a cool head. There's no rush at this time of the year and the legislative cycle.

RB

Hey, Anonymous...

It seems that they would have had the ability to do that PRIOR to the time that the act was passed that had the exclusionary language in it... i.e. the act that used the population classification that included Roane County among the counties that did, when that act was passed, lose the authority for their county legislative bodies to regulate.

Of course, it's only a matter of semantics, anyway, since from that time forward the county legislative body has not had that authority. If they hadn't had it at one time (along with all the other counties excluded by the population classifications), there would have been no need for an amended statute to exclude them would there?

But, as WC said, that is moot, since it is the way it is.

This is just TOO convoluted! :-)

RB

OK - Gotcha...

And that (what was amended where & when) makes a diff :-)

You've obviously done a lot of historical research on the statutes. We're fortunate that they have such an extensive availability on the internet. I'm glad the General Assembly and Michie in combination have seen fit to make all that available.

Appreciate all the work you've put into it.

RB

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Even then you have a limited time to change things. If there is something you really want to edit and your edit privilege has timed out you can send me a private message and I'll fix it in most cases.

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