IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 10, 2009 Session

CITY OF KNOXVILLE v. JOSHUA DAVID KIMSEY

Direct Appeal from the Circuit Court for Knox County

No. 3-83-07 Hon. Wheeler Rosenbalm, Circuit Judge

No. E2008-00850-COA-R3-CV - FILED MAY 13, 2009

Defendant has appealed from a traffic court violation conviction based on documentary evidence

created by a camera at a street intersection. The Trial Court affirmed the City Court conviction and

defendant has appealed to this Court raising several issues. Upon review of the record and

consideration of the evidence, we affirm the Judgment of the Trial Court.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS,P.J., delivered the opinion of the Court, in whichCHARLES D.SUSANO,

JR., J., and J. STEVEN STAFFORD, J., joined.

David B. Hamilton and Christopher Rowe, Knoxville, Tennessee, for appellant, Joshua David

Kimsey.

Angela Bolton Rauber and Ronald E. Mills, Knoxville, Tennessee, for appellee, the City of

Knoxville.

OPINION

In this action, defendant was issued a traffic citation resulting from a camera

recording at a street intersection. The Municipal Court convicted defendant of a traffic violation

which he appealed to the Circuit Court. In Circuit Court, the City filed a Motion for an Order

Deeming Matters Admitted, stating that they served defendant with Requests for Admission on July

18, 2007, and had received no response. Defendant filed a Motion for Relief of Bond, a Motion to

Dismiss for Lack of Jurisdiction, and a Motion for Determination of Rules Applicable to Appeal.
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The Trial Court entered an Order granting the Motion for Order Deeming Matters

Admitted, finding that the Requests for Admissions had been deemed admitted for the purposes of

the issues before the Court. Defendant then filed other motions including a Motion to Transfer

Appeal to Criminal Division, a Motion to Set Aside Order, and other Motions to Dismiss. 

 

The Court then entered an Order and Final Judgment, finding that the City had

sufficient authority to enact §17-210(c) of the Code of the City of Knoxville, and that the ordinance

was a civil or quasi-civil matter, and enforcing the ordinance was a valid exercise of the City’s police

powers. Further, that the ordinance did not violate the United States or Tennessee Constitutions, and

that defendant violated §17-210(c) and was liable for the $50.00 fine. 

Defendant has appealed and raises these issues:

1. Whether the Trial Court erred by denying defendant’s constitutional

protections of due process and privilege against self-incrimination?

2. Whether the Trial Court erred by upholding a municipal ordinance that

substantially alters a corresponding state criminal statute?

3. Whether the Trial Court erred by upholding City of Knoxville authority to

delegate police power to a non-governmental third party?

Defendant argues that ordinances such as the one at issue are penal in nature, and that

all constitutional guarantees under the United States and Tennessee Constitutions relating to criminal

prosecutions should apply. He argues that the Court erred in refusing to hold the Rules of Criminal

Procedure applicable rather than the Rules of Civil Procedure, and that the Court erred in refusing

to transfer the case to the criminal division. Further, that the mailed notice denied defendant due

process.

The Supreme Court and this Court have previously held that actions based on a

violation of a city ordinance are civil in nature for the purposes of appeal/procedure. Thus, the Trial

Court properly denied defendant’s motion seeking to have the Rules of Criminal Procedure apply

to this action. City of Chattanooga v. Myers, 787 S.W.2d 921 (Tenn. 1980); City of Knoxville v.

Brown, 2008 WL 2925370 (Tenn. Ct. App. July 30, 2008). 

Defendant further argues that application of Tenn. R. Civ. P. 36 denied him

constitutional protections, because the Court found that he admitted certain matters by failing to

respond to theRequests for Admission that were served upon him. The Brown court recognized that

constitutional protections could attach to actions such as this. However, defendant’s argument fails

to recognize that it has been long-established that he could have asserted the privilege against selfincrimination upon proper grounds, in a civil case. Richardson v. Tenn. Bd. of Dentistry, 913

S.W.2d 446 (Tenn. 1995). Defendant failed to do this, either in the hearing held in City Court

(where the defendant testified, according to his brief) or by responding to the Requests for
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Admission and asserting that privilege. Defendant waived the privilege, rather than having it denied

by the Court. State Dep’t of Children’s Services v. M.P., 173 S.W.3d 794 (Tenn. Ct. App. 2005).

Defendant also argues the Trial Court should have transferred this action to the

criminal division, but as explained, these actions are considered civil in nature, and defendant’s

precise issues regarding due process were addressed by this Court in Brown. We find there was no

violation. The record does not show that defendant’s constitutional rights were infringed, and the

issues raised are without merit.

Next, defendant argues the Trial Court erred by upholding the Municipal ordinance,

which he asserts substantially alters a corresponding state statute. He also argues that the ordinance

improperly delegates police power to a non-governmental third party. These issues were already

determined and are not applicable here, as explained in Brown. 

We made clear in Brown that City Code §17-210 was not in conflict with any state

statute, as the issue was addressed in depth in that opinion. We stated that, “Even though

constitutional protections are triggered by the fine imposed byCityCode § 17-210, we nevertheless

conclude that the proceeding is civil in nature and, in accordance with the statutes quoted above, well

within the police power of the City of Knoxville. Therefore, we reject defendant's argument that

City Code § 17-210 is ultra vires and affirm the Trial Court's judgment on this issue.” Brown, 2008

WL 2925370. The Brown Court addressed and disposed of all of defendant’s arguments regarding

the validity of the ordinance.

Defendant’s remaining argument is that the City did not have the authority to delegate

police power to a non-governmental third party, by sharing city revenue with Redflex, delegating

core government functions regarding issuance of citations, etc. A review of the contract between

the City and Redflex, however, demonstrates that Redflex merely gathers the photos and data and

then a police officer reviews the same to determine whether a citation should be issued. The City

has plenary power to decide who to cite and whether those actions take place. We conclude that

Redflex’s only duty is to gather the photos and data via the cameras, and this does not constitute any

exercise of police powers. The agreement does not run afoul of any of the Attorney General

Opinions cited. We find this issue as well to be without merit.

The Judgment of the Trial Court is affirmed, and the cause remanded, with the

cost of the appeal assessed to Joshua David Kimsey.

______________________________

HERSCHEL PICKENS FRANKS, P.J.