Can a Tennessee county create its own civil rights lawsuit law to sue the sheriff and deputies?

Subject

Opinion No. 12-73, Shelby County Ordinance Creating Private Right of Action for Civil Rights Violations, July 19, 2012

Plain-English summary

State Senator Mark Norris asked whether the Shelby County Board of Commissioners could pass a county ordinance letting individuals sue the Shelby County Sheriff or his deputies in General Sessions Court for violating their constitutional rights. The AG said no.

The reasoning came down to two well-established rules of Tennessee local government law:

1. Counties have only the powers the General Assembly gives them. "Counties have no authority other than that expressly given by statute or necessarily implied from the provisions of such statute" (Howard v. Willocks).
2. Charter counties (like Shelby) get extra home-rule autonomy, but the legislature carved out the judicial system. Tenn. Code Ann. § 5-1-204(f)(1) specifically blocks a charter county's ordinances from "affecting the judicial system" except in a narrow zone: imposing or collecting fines, penalties, fees, and court costs, and filling judicial vacancies.

Creating a brand-new private cause of action against county law-enforcement officials, which would have to be litigated in General Sessions Court, is exactly the kind of thing the judicial-system carve-out forbids. The AG also looked at Tenn. Code Ann. § 5-1-211, the general charter-county ordinance enforcement statute, and concluded it gives counties no broader power to create civil causes of action. § 5-1-211 deals with how counties enforce their own rules through fines (capped at $1,000), through general sessions prosecutions, and through the chief law enforcement officer.

So Shelby County lacked the statutory authority to pass such an ordinance.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Shelby County is one of two Tennessee counties (with Knox) that had adopted a charter form of county government under Tenn. Code Ann. § 5-1-201. Charter counties get expanded home-rule powers, but those powers come from the statute itself and are bounded by the same statute. Tenn. Code Ann. §§ 5-1-201 to -215 spell out the framework.

§ 5-1-204(f)(1) is the key sentence:

Nothing contained within the provisions of this section shall be construed to affect the judicial system in any county adopting a charter form of government except as its charter or ordinances may direct the imposing, levying or collection of fines, penalties, fees or court costs or the procedures for the filling of vacancies as required by law.

That's a flat ban on charter-county ordinances affecting the judicial system, with two narrow exceptions (fines/fees/costs, and filling vacancies). The AG read "judicial system" in the ordinary sense, broad enough to cover the creation of a brand-new statutory tort claim litigated in court.

§ 5-1-211 backs up that reading. It is the part of the charter-county code dealing with ordinance enforcement: maximum penalties ($1,000 in counties of certain populations); trial in general sessions court for ordinance violations; fines paid into the county general fund; enforcement delegated to the chief law-enforcement officer. None of that authorizes a charter county to invent a private civil cause of action against its own officials.

The Tennessee Supreme Court's general rule is that exceptions in a statute are strictly construed (Metropolitan Development and Housing Agency v. Eaton). Reading "imposing, levying or collection of fines" to also authorize creating new tort claims would not be strict construction; it would be a rewrite.

Common questions

Could the county still sue the sheriff for misconduct under existing law?
Tennessee already has civil-rights and tort frameworks at both state and federal level that individuals can use against law-enforcement officers, including 42 U.S.C. § 1983 (federal civil-rights claims) and the Tennessee Governmental Tort Liability Act. The opinion is about whether a county can create an additional, locally enacted cause of action, not whether existing remedies still apply.

Why is the judicial-system carve-out written so narrowly?
Tennessee's court system, sheriffs' offices, district attorneys, and rules of procedure are largely set at the state level, partly to keep procedural law uniform across counties. The carve-out in § 5-1-204(f)(1) reflects that policy: charter counties can structure their executive and legislative branches, but cannot reorganize the courts or invent new statewide-style legal claims.

Would the answer have been different for a non-charter county?
Non-charter counties have even less inherent authority than charter counties. The premise of Howard v. Willocks is that all counties are creatures of statute. Without an express grant from the General Assembly, a non-charter county would not be able to create a private cause of action either.

Citations

Statutes:

• Tenn. Code Ann. § 5-1-201 (charter form of county government)
• Tenn. Code Ann. § 5-1-204(f)(1) (judicial-system limit on charter county ordinances)
• Tenn. Code Ann. § 5-1-211 (charter county ordinance authority and enforcement)

Cases:

• Howard v. Willocks, 525 S.W.2d 132 (Tenn. 1975)
• Bayless v. Knox County, 286 S.W.2d 579 (Tenn. 1955)
• Bailey v. County of Shelby, 188 S.W.3d 539 (Tenn. 2006)
• Metropolitan Development and Housing Agency v. Eaton, 216 S.W.3d 327 (Tenn. Ct. App. 2006)

Prior AG opinion:

• Op. Tenn. Att'y Gen. 11-38 (Apr. 26, 2011)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-073.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

July 19, 2012

Opinion No. 12-73

Shelby County Ordinance Creating Private Right of Action for Civil Rights Violations

QUESTION

Does the Shelby County Board of Commissioners have authority to enact an ordinance creating a private cause of action in General Sessions Court against the Shelby County Sheriff or the deputies employed by the sheriff for violation of an individual's civil rights under the United States and Tennessee Constitutions?

OPINION

No. The creation of such a private cause of action by the Shelby County Board of Commissioners is prohibited by Tenn. Code Ann. § 5-1-204(f)(1), which with limited exceptions restricts a charter county's authority to enact ordinances affecting the judicial system.

ANALYSIS

Shelby County does not have authority to create a private cause of action for violations of the United States and Tennessee Constitutions. Initially, Tennessee law is well settled that "counties have no authority other than that expressly given by statute or necessarily implied from the provisions of such statute." Howard v. Willocks, 525 S.W.2d 132, 135 (Tenn. 1975) (citing Bayless v. Knox County, 286 S.W.2d 579, 588 (Tenn. 1955)). Shelby County has adopted a charter form of county government pursuant to Tenn. Code Ann. § 5-1-201. See Bailey v. County of Shelby, 188 S.W.3d 539, 544 (Tenn. 2006); Op. Tenn. Att'y Gen. 11-38 (Apr. 26, 2011). As a charter county, Shelby County is subject to the provisions in the Tennessee Code governing charter forms of government codified at Tenn. Code Ann. §§ 5-1-201 to -215. Section 5-1-204(f)(1) specifically addresses a charter county's power to create ordinances that affect the judicial system, stating:

Nothing contained within the provisions of this section shall be construed to affect the judicial system in any county adopting a charter form of government except as its charter or ordinances may direct the imposing, levying or collection of fines, penalties, fees or court costs or the procedures for the filling of vacancies as required by law.

Tenn. Code Ann. § 5-1-204(f)(1).

Thus, a charter county cannot affect the judicial system except in the limited area of directing "the imposing, levying or collection of fines, penalties, fees or court costs or the procedures for the filling of vacancies as required by law." Creating a private cause of action does not fall within these very narrow exceptions, and accordingly Shelby County lacks the authority to create any such action against the Shelby County Sheriff or the sheriff's deputies. See Metropolitan Development and Housing Agency v. Eaton, 216 S.W.3d 327, 339 (Tenn. Ct. App. 2006) (citing the general rule that exceptions to a statute are strictly construed).

Nor does Tenn. Code Ann. § 5-1-211, which specifically addresses a county's authority to issue ordinances, establish any right of a charter county to create private causes of action. The provisions of Section 5-1-211 are focused on the enforcement of rules and regulations whereby citizens pay the county fines or penalties for violations, in conformity with the limited authority granted by Tenn. Code Ann. § 5-1-204(f)(1). For example, Section 5-1-211(b) states that the maximum penalty or forfeiture for an ordinance violation is $1,000 for counties within certain population limits. Tenn. Code Ann. § 5-1-211(b). Section 5-1-211(i) provides that persons charged with ordinance violations shall be tried in general sessions court and that any fines collected for such violations shall be paid into the county general fund. Id. Under Section 5-1-211(h), the enforcement of ordinances is delegated to the chief law enforcement officer. Id. Thus, Section 5-1-211 does not authorize charter counties to create causes of actions against county officials.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JOE AHILLEN
Assistant Attorney General

Requested by:
The Honorable Mark Norris
State Senator
9A Legislative Plaza
Nashville, TN 37243