LEGAL ISSUES - Overview of Local Litigation Taxes, Issues Specific to Disposal of Court Records & Legal Opinions Rel

1. LEGAL ISSUES-Overview of Local Litigation Taxes,Issues Specific to Disposal of Court Records&Legal Opinions Relative to Court Clerks

2. Overview of Local Litigation Taxes

3. Two Types • State and local • Authority for state tax is TCA 67-4-602 • Local litigation taxes are not uniform • State Match Litigation Tax • Jail Construction/Courthouse Renovation Litigation Tax • General Sessions Judges’ Litigation Tax

4. State Match Litigation Tax • TCA 67-4-601(a): It is the expressed intent of the general assembly that counties shall continue to have the authority to levy a local litigation tax and that no provision of 1981 Public Chapter 488 shall be construed to limit or repeal such authority • AG Opinion 81-598

5. State Match Tax – Cont. • In civil cases in courts of record: $23.75 • In civil cases in general sessions court: $17.75 • In criminal cases on all criminal charges upon conviction or by order: $29.50 • Authorized by private act or resolution • Not required to be earmarked

6. Jail Construction/Courthouse Renovation Tax • TCA 67-4-601(b): • Numerous subdivisions • (1) - Each county by resolution, adopted by two-thirds vote, may levy a litigation tax in all civil and criminal cases instituted in the county which shall not exceed $10 per case; the proceeds shall be used exclusively for the purposes of jail or workhouse construction, reconstruction or upgrading, or to retire debt, including principal and interest and related expenses, on such construction, reconstruction or upgrading or for courthouse renovation

7. TCA 67-4-601(b) – Cont. • (2) – Only effective until the debt for such project is paid in full; • (3) – State not liable for tax on behalf of indigents; • (4) – Not applicable to a hospital in Bradley County;

8. TCA 67-4-601(b) – Cont. • (5) - A privilege tax on litigation in all civil and criminal cases may be levied in an amount not to exceed twenty-five dollars ($25.00) per case; • (6) - A privilege tax on litigation in all civil and criminal cases may be levied in an amount not to exceed twenty-five dollars ($25.00) per case, to be used exclusively for court house security, in addition to those purposes identified in subdivision 1; • (7) - A county may adopt the privilege tax in subdivision 5 or 6, or both

9. TCA 67-4-601(b) – Cont. • What’s the total amount that may be levied per subsection (b) of 67-4-601? • Is all the money earmarked? • AG Opinion 08-167 • $50 is the maximum amount that may be levied under subsection (b) of TCA 67-4-601 • All the money is earmarked (all $50 may be used for jail construction or courthouse renovation or as much as half ($25) may be used for courthouse security)

10. General Sessions Judge’s Tax • TCA 16-15-5006: Any county by a two-thirds vote of its legislative body may levy a $6.00 litigation tax on each criminal conviction in general sessions court • Earmarked for compensation of general sessions judges • Can be increased

11. Issues Specific toDisposalofCourt Records

12. One More Step For Court Clerks • Records and documents of proceedings in a court of record can only be destroyed after a judge has issued an order authorizing their destruction • Thus, in addition to working with the public records commission, court clerks need to involve a judge in the review process for destroying records of court proceedings

13. TCA 18-1-202(a) • The clerks of courts of record can destroy many records under the direction and order of the judge once a case has been finally disposed of for a period of ten years • “Finally disposed of” means judgment has been entered and the appeal times have lapsed for all parties • However, clerks must retain the pleadings, original process and original opinion, original rules, appearance and execution dockets, minute books, and plat or plan books as permanent records • All other records, dockets, books, ledgers and documents can be destroyed pursuant to a court order after the time period has passed

14. TCA 18-1-202(b) • Additionally, in civil cases, a judge may order the clerk to destroy discovery materials, briefs, cost bonds and subpoenas three years after the final disposition of the case • Must notify the parties prior to destruction • Cannot destroy if any party is a minor

15. TCA 18-1-203 • Any order issued by any of the judges of courts of record, as authorized in TCA 18-1-202, shall be entered on the minutes of the court, setting forth generally what papers, books, documents and records may be disposed of by the court clerk • A detailed inventory in the minute entry is not required

16. TCA 18-1-204 • After receiving the Judge’s order, the clerk must still notify the Tennessee State Library and Archives of the records they intend to destroy and give them ninety days to examine and remove any significant historical records if they so choose.

17. Physical Evidence (other than documents and firearms) • There is a more complicated set of procedures for disposal, but you can destroy physical evidence sooner • Once the case comes to judgment or conclusion and once all appeals have been settled, the clerk is to give thirty days notice to the attorneys of record in the case that they can come pick up anything that belongs to them or their clients • After thirty days, the clerk can dispose of the evidence by following the procedures in TCA 18-1-206(a)(2) through (7)

18. TCA 18-1-206(a)(2) through (7) • This statute requires the clerk to make an inventory of the evidence to be destroyed with references to the case involved and the term of court in which the evidence was used • The clerk then publishes the inventory for three consecutive weeks in a newspaper of general circulation • Parties who want to object to the disposition of the property or make a claim for it have thirty days to file a petition with the court

19. TCA 18-1-206(a)(2) through (7) - Cont. • Once 30 days pass, the clerk gives the inventory (and any petitions people may have filed) to the court for the judge to approve or reject each item on the list and decide if it should be: • Returned to the owner or the owner’s attorney; • Preserved by an organization for historical purposes; • Sold; or • Destroyed

20. TCA 18-1-206(a)(2) through (7) - Cont. • Once the judge decides, the clerk then gives the court order and the items to be disposed of to the sheriff • Depending on the disposition ordered for the item, the sheriff then delivers the items to their owners or to historical organizations or advertises and sells the items or destroys them and files an affidavit concerning the destruction of the items with the court

21. Firearms • If a court clerk has exhibits in his or her possession that are firearms they should be disposed of in accordance with the procedures spelled out in TCA 39-17-1317 and 1318 • These statutes generally provide that the firearm shall be returned to the rightful owner if stolen or if not stolen shall in the courts discretion be sold, destroyed or used for legitimate law enforcement purposes

22. Legal Opinions Relative to Court Clerks

23. Atty. General Opinion No. 09-186 • Does a juvenile court have the authority to collect restitution, fines, and court costs from an offender over the age of nineteen, who previously committed a delinquent offense as a juvenile? • Does a general sessions court have the authority to collect restitution, fines, and court costs from an adult offender, who was convicted of a misdemeanor crime more than 11 months and 29 days ago? • Is there a time limit on collecting court costs?

24. OORC Opinion No. 09-10 • Are medical records filed as exhibits in court proceedings protected by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), thus requiring the clerks to remove any medical records contained in a file prior to making the file available for public inspection? • If the clerk or judge adopts a policy/rule that requires a party filing records to identify any record that either contains confidential information or is entirely confidential, will the court clerk still be responsible for reviewing the records filed to ensure that confidential information is removed or redacted prior to public inspection?

25. Atty. General Opinion No. 08-190 • Are the audio recordings and stenographic notes of a criminal proceeding utilized by a reporter for preparing the transcript required by TCA 40-14-307 to be a part of the record that the court reporter must file with the court clerk? • Does TCA 40-14-307 require the court clerk to retain and store these recordings and notes (if so, for how long)?

26. OORC Opinion No. 08-09 • Are the emails sent and/or received by court clerks and their employees subject to public inspection?

27. Atty. General Opinion No. 06-121 • Does the post-judgment fee contained in TCA 8-21-401(i)(1) apply to all motions and occurrences after the judgment is entered or only to motions and occurrences after the judgment becomes final (i.e., thirty days after the judgment is entered)? • Does TCA 8-21-401(i)(1) apply to motions filed by the defendant?

28. Atty. General Opinion No. 06-135 • Is it lawful to imprison a person for non-payment of court costs, litigation taxes or fines? • Is it lawful to punish a defendant for non-payment of a fine when the defendant pays an amount of money equal to the fine imposed but the court clerk allocates that money to court costs and litigation taxes pursuant to TCA 40-24-105(a)? • The portion of AG Opinion No. 06-135 relative to contempt was amended by 2009 Public Chapter 570.

29. Atty. General Opinion No. 05-118 • Does a court clerk have the authority to enter into a contingency fee contract with a debt collection agency to collect delinquent fines, court cost and/or litigation taxes?

30. Atty. General Opinion No. 05-110 • If a defendant’s case has been transferred from one county to another pursuant to a change of venue motion or for purposes of entering a guilty plea pursuant to TCA 40-35-214, which court clerk’s office is entitled to the collected fines and court costs?