State ex rel Jerry N. Estes v. Johnny Dewayne Hicks

IN THE COURT OF APPEALS OF TENNESSEE FILED March 31, 2000 AT KNOXVILLE Cecil Crowson, Jr. Appellate Court Clerk

STA TE O F TEN NES SEE, e x rel. ) C/A NO. E1999-01603-COA-R3-CV JERRY N. ESTES, ) ) BRADLEY CHANCERY Plaintiff-A ppellant, ) ) HON. JERRI S. BRYANT, vs. ) CHANCELLOR ) JOHNNY DEW AYNE HICKS, ) VACATED ) AND Defendant-Appellee. ) REMANDED

PAUL G. SUMMERS, Attorney General and Reporter, MICHAEL E. MOORE, Solicitor General, and MICHAEL A. MEY ER, Assistant Attorney General, Nashville, for Plaintiff -Appellan t.

MICHAEL M. RAULSTO N, Chattanooga, for Defendant-Appellee.

O P I N IO N

Franks, J.

In this action, the State sought to remove defendant from the office of constable in Bradley Cou nty, on the grounds that he did n ot meet the statutory qualifications to hold the office of constable. Tenn. Code Ann. §8-10-102, states:

(a)(1) Except as provided in subdivision (a)(2), to qualify for election or ap pointmen t to the office of constab le, a person s hall:

(A) Be at least twenty-one (21) years of age; (B) Be a qua lified voter o f the district; (C) Be able to read and write; (D) Not hav e been co nvicted in a ny federal or sta te court of a felony; and (E)(i) Not have been separated or discharged from the armed forces of the United States with other than an honorable discharge.

At trial, the State focused on the pro vision that a c onstable m ust “be able to read and write”, and after the State presented its proof, defendant moved to dismiss pursuant to T.R.C.P. Rule 41, and the Trial Judge dismissed the action. She observed in her Memorandum Opinion, “In this case, the State has the near impossible burden of proving the defendant does not meet the requirements of the statute, which contains no definition and on a topic upon which opinions differ greatly.”

The legisla ture did not d efine wh at it means to be able to re ad and w rite pertaining to that requirement set forth in Tenn. Code Ann.§8-10-102(a)(1)(c). The defendant argues that the qualification simply means that to read and write at any level whatsoever. The State contends, however, that it means that a constable should be able to re ad and write at s uch a le vel so a s to be a ble to dis charge the dutie s of of fice.

Since th e statute is subjec t to diffe rent inte rpretatio ns, it is am biguou s. In re Conservatorship of Clayton, 914 S.W .2d 84 (Te nn. Ct. Ap p. 1995). If a statute is ambig uous, it is proper to invo ke the p rinciple s of statu tory cons truction . Id. The Court may consider the existing law, the legislative history behind the enactment of the statu te, and th e evil so ught to be add ressed. Id. Moreover, the construction of a statute is a question of law which appellate courts review de novo, with no presum ption o f correc tness. Myint v. Allstate Ins. Co., 970 S.W.2d 92 0 (Tenn.1998).

The o ffice o f cons table ori ginated as part o f the co mmo n law. Glasgow

v. Fox, 383 S.W.2d 9 (Tenn. 1964). It was also provided in Article 6, Section 15 of the Constitution of the State of Tennessee, which provision was repealed by amendment in 1978. As defendant contends, statutes in derogation of common law should be strictly construed, b ut “[t]he m ost basic prin ciple of statu tory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.” Worley v. Weigel’s, Inc., 919 S .W.2d 589 (T enn. 19 96).

Tenn. Code Ann. §8-10-101 et seq. deals exclusively with the office of constable, and contains the section in question which sets the qualifications for the office. The section has been aptly described as a “crazy quilt of differing provisions”, because it deals not only with how constables are to be elected and the qualifications therefor, but also with permissive uniform and patrol car standards, surety bonds, and other issues, and then exempts several counties from its application based upon popula tion. See Tenn. Code Ann. §8-10-101 et seq.; Long v. Blount County Election Com’n, 854 S.W.2d 89 4 (Tenn. Ct. Ap p. 1993).

Previous to the 1997 amendment adding the current requirements, the statute merely stated that no person under the age of eighteen was eligible to be constable. During the debate over the amendment, Senator Haun, the sponsor, stated that the intent was to set minimum requirements for holding office. There was some discussion r egarding th e general lac k of conf idence in an d respect fo r constables in certain counties, and the legislators talked ab out the need to mak e the office more reputable in any way possible.

Questions involving statutory construction should be resolved “in light of reason, having in mind the object of the statute, and the mischief it aims at.” Loftin v. Langsdon, 813 S.W.2d 47 5, 479 (Tenn. C t. App. 1991). Any word s in the statute which are indefinite or unclear should be interpreted in such a way as to “express the legislature’s intention and purpose.” Id.

“The cardinal rule of statutory construction is to effectuate legislative intent, with all rules of construction being aides to that end.” Locust v. S tate, 912 S.W.2d 716, 718 (Tenn. Ct. App. 1995). “Furthermore, we are to assume that the legislature used each word in the statute purposely, and that the use of these words conveys some intent and has a meaning and purpose.” Id. at 718. “Effect must be given to every word, phrase, clause and sentence of the act in order to achieve the legislative intent and the statute should be construed so that no section will destroy

another.” Dingm an v. Ha rvell, 814 S.W.2d 36 2 (Tenn. Ct. Ap p. 1991).

Constables serve civil process, which includes properly filling out the return o f servic e whe ther it be a summ ons or c ivil war rant. See Tenn. Code Ann. §8- 10-111. Service of process can include orders of protection in domestic situations, which require s that the order b e read to the def endan t in orde r to be p roperly se rved. See Tenn. C ode An n. §36-3-6 04 and § 36-3-605 . Moreo ver, the law s in comp lexity have grown over the years. Accordingly, we conclude that the legislature intended a qualified individual to hold the office of constable must be one who could read and write well enough to perform the duties of that office, which would mean that the individual would have to be able to read and write well enough to properly read the docum ents he is requir ed to se rve, and write w ell enou gh to fill out retu rns of s ervice.

The Trial Court treated defendant’s motion as a motion to dismiss, since this wa s a non -jury case . See City of Columbia v. C.F.W. Construction Co., 557 S.W.2d 734 (Tenn. 1977). Where a mo tion to dismiss is made, the trial court must “impartially weigh and evalua te the evidence in the sam e manner as thou gh he were making findings of fact at the conclusion of all of the evidence for both parties, determine the facts of the case, apply the law to those facts, and, if the plaintiff’s case has not been made out by a preponderance of the evidence, a judgment may be render ed aga inst the p laintiff o n the m erits”. Id.

The Trial Court found that the State had not met its burden in showing that Hicks could not read and write, however, the court interpreted the requirement as being able to read and write at any level. The evidence shows Hicks demonstrated an ability to read and write at some level, but did not demonstrate that he possessed the ability to read and write at a sufficient level to properly read process or warrants that in the discharge of his duties he would be required to serve, or to fill out the return of service on those documents. The evidence generally established that Hicks could read at the third gra de level ran ge, but had an accura cy of reading skills of 54% at the sixth grade level. There was also evidence that he admitted to an investigator in the District Attorney G eneral’s O ffice that he could not re ad, i.e., docum ents he w as required to serve as constable, or write at the level to properly discharge his duties in making returns, etc.

Accordingly, we vacate the Trial Court’s Order of Dismissal, and remand to allow the p arties to presen t all of their evid ence and the Trial Co urt will then mak e a determ ination of th e issues bef ore the Co urt.

The cause is remanded to the Trial Court for further proceedings consistent w ith this Opin ion, with the cost of the a ppeal asses sed to the de fendant.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Charles D. Susano, Jr., J.

___________________________ D. Michael Swiney, J.