Can Tennessee put cameras on school buses to ticket drivers who pass them while they are stopped?

Subject

Opinion No. 14-48, Validity of Legislation Authorizing Traffic-Enforcement Cameras on School Buses, April 21, 2014

Plain-English summary

Representative Glen Casada asked the AG to assess HB2196 (108th General Assembly, 2014), which would let local school districts install cameras on school buses to catch drivers who pass stopped buses. Under the bill, citations would be mailed to the registered owner of the vehicle, who would be responsible for the fine ($300 first offense, $750 second, $1,000 third) unless the owner submitted an affidavit identifying who actually drove the car.

Two constitutional questions: (1) does the scheme comport with due process? and (2) can municipalities collect fines over $50 consistently with Article VI, § 14 of the Tennessee Constitution (the "fifty-dollar-fine clause," which limits fines without a jury)?

The AG concluded the bill was susceptible to due-process challenge because it set up a criminal scheme rather than a civil one. A civil camera-enforcement scheme is constitutional: the Sixth Circuit upheld Akron's red-light camera ordinance (Mendenhall) and the Tennessee Court of Appeals upheld Knoxville's similar ordinance (City of Knoxville v. Brown). Op. 10-17 (Feb. 19, 2010) had blessed Tennessee's general traffic-enforcement camera statute, Tenn. Code Ann. § 55-8-198, as civil because it expressly labeled the citations nonmoving violations and capped the in-lieu-of-appearance fine at $50.

HB2196 looked different. It called the citation a "moving traffic violation" for purposes of license points and license suspension. It applied progressive penalties up to $1,000. It did not cap the in-lieu-of-appearance fine. The AG concluded those features push the scheme over the civil-criminal line.

The criminal characterization triggered two problems. First, due process. The statutory offense element is that the "driver" of a vehicle pass the stopped school bus. By making the owner responsible based on camera evidence, HB2196 effectively creates a presumption that the owner drove the car unless the owner produces rebuttal evidence (the § 55-8-198(e) affidavit). Mandatory presumptions of that kind violate due process in criminal cases, because they shift the burden onto the defendant on an element of the offense (State v. Pickett; Smith v. United States).

Second, Article VI, § 14. The fifty-dollar-fine clause prohibits punitive fines over $50 unless assessed by a jury. Municipal court judges typically cannot empanel juries (City of Nolensville v. King; City of Chattanooga v. Davis). Fines of $300 to $1,000 that are punitive in nature run into this clause. The AG concluded that municipal ordinances mirroring HB2196 would face the same problem.

Currency note

This opinion was issued in 2014. 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.

Common questions

Is a school-bus camera the same as a red-light camera under Tennessee law?

Not necessarily. Tennessee's general traffic-camera statute (§ 55-8-198) is structured to be civil: it labels the citations nonmoving violations and caps in-lieu-of-appearance fines at $50. The bus-camera bill, HB2196, did not adopt those civil features. It used a criminal-looking framework (license points, license suspension, progressive penalties, uncapped in-lieu-of-appearance amounts).

What is the civil-versus-criminal test?

The U.S. Supreme Court uses a two-part inquiry. First, did the legislature intend a civil, non-punitive scheme? (Kansas v. Hendricks.) Second, even if yes, is the scheme so punitive in purpose or effect that it must be deemed criminal? (United States v. Ward; Kennedy v. Mendoza-Martinez supplies seven factors.) Tennessee courts follow the same two-part test and ask whether the totality shows the sanction is remedial rather than punitive (City of Chattanooga v. Davis).

Why is the "moving violation" label so damaging to the civil characterization?

Because it triggers driver-license consequences (points under § 55-50-505 and license suspension under § 55-50-502). License-related penalties are a hallmark of criminal traffic enforcement in Tennessee. A truly civil scheme typically would not assess points or suspend a license.

What is the burden-shifting due-process problem?

Under § 55-8-151(a), the offense element is that the "driver" of the vehicle pass the stopped bus. HB2196 mailed citations to the registered owner of the vehicle and made the owner responsible for the fine unless the owner produced an affidavit (per § 55-8-198(e)) saying who actually drove. That structure makes the prosecution's case (driver = defendant) by presumption, with the burden to rebut shifted to the defendant. In criminal cases, mandatory presumptions on an element of the offense violate due process.

Is the affidavit "out" enough to fix the problem?

Probably not. The defect is not the absence of any way to rebut, but the presumption itself. Due process requires the prosecution to prove every fact necessary to constitute a crime beyond a reasonable doubt (Smith v. United States). Shifting the production burden to the defendant on an essential element is impermissible.

What is the $50-fine clause?

Article VI, § 14 of the Tennessee Constitution prohibits the imposition of fines over $50 unless the fine is assessed by a jury. The Tennessee Supreme Court in City of Chattanooga v. Davis held that this clause applies to municipal ordinance violations when the sanction is punitive in nature. Municipal court judges typically cannot empanel juries, so they cannot impose fines over $50 absent a valid waiver of the jury right (City of Nolensville v. King).

Could a properly civil school-bus camera scheme work?

The AG's analysis suggests yes. The scheme would need to (a) explicitly label the violation civil and nonmoving, (b) cap the in-lieu-of-appearance fine at $50 or characterize the higher fine as remedial of administrative costs and school safety, (c) avoid driver-license consequences, and (d) avoid a structure that effectively presumes the owner is the driver on an offense element. The bill as drafted in 2014 did not meet those constraints.

What about cities that adopt their own ordinances?

The bill contemplated municipal ordinances mirroring or referencing § 55-8-151(a). The AG concluded those ordinances would be subject to the same Article VI, § 14 analysis. Because the underlying state-law sanction is likely punitive, the mirroring ordinance's sanction is also likely punitive, and the $50-fine clause applies.

Background and statutory framework

Tennessee's underlying school-bus-passing offense (§ 55-8-151(a)) is a Class A misdemeanor punishable by a fine of $250 to $1,000. That is plainly criminal. HB2196 tried to keep that criminal-flavored penalty structure while bolting on a camera-based citation mechanism inspired by civil traffic-camera schemes.

The model for civil schemes is Tenn. Code Ann. § 55-8-198 and the cases interpreting it. The Tennessee Court of Appeals in City of Knoxville v. Brown upheld red-light cameras as civil. The Sixth Circuit in Mendenhall (and the federal district court below in 2008 WL 748179) catalogued the features that make a camera scheme civil: nonmoving-violation label, modest fine (capped near $100 or below), no progressive penalty, no license points.

HB2196 inverted those signals. In Op. 10-17, this Office had concluded that the existing § 55-8-198 camera scheme did not violate due process, pointing to its "evident preference for a civil label" (the nonmoving-violation designation) and its "modest fine" (the $50 in-lieu-of-appearance cap). HB2196 adopted neither feature.

The municipal ordinance question hinges on the same logic. Under § 55-10-307(a), cities may adopt by ordinance "any of the appropriate provisions" of the state traffic chapter. A mirror ordinance carries the same characterization (punitive or remedial) as the state law it mirrors, and the Davis-line analysis determines whether the resulting fine is subject to the jury requirement.

Citations

• Tenn. Code Ann. § 55-8-151 (passing stopped school bus; Class A misdemeanor with $250-$1,000 fine)
• Tenn. Code Ann. § 55-8-198 (general traffic-enforcement camera statute; nonmoving violation, $50 cap)
• Tenn. Code Ann. § 55-10-307(a) (city authority to adopt traffic ordinances mirroring state law)
• Tenn. Code Ann. § 55-50-502 (driver-license suspension for failure to appear or pay)
• Tenn. Code Ann. § 55-50-505 (points on driving record)
• Tenn. Const. art. VI, § 14 (fifty-dollar-fine clause)
• Mendenhall v. City of Akron, 374 Fed. Appx. 598 (6th Cir. Mar. 29, 2010) (Sixth Circuit; civil red-light camera scheme upheld)
• Mendenhall v. City of Akron, Nos. 5:06-cv-139, 5:06-cv-154, 2008 WL 748179 (N.D. Ohio Dec. 9, 2008) (federal district court; features distinguishing civil from criminal schemes)
• City of Knoxville v. Brown, 284 S.W.3d 330 (Tenn. Ct. App. 2008) (Tennessee Court of Appeals; civil traffic-camera scheme)
• Smith v. United States, 133 S.Ct. 714 (2013) (U.S. Supreme Court; due process and elements of crime)
• State v. Pickett, 211 S.W.3d 696 (Tenn. 2007) (Tennessee Supreme Court; mandatory presumptions violate due process)
• Kansas v. Hendricks, 521 U.S. 346 (1997) (U.S. Supreme Court; civil-vs-criminal first inquiry)
• United States v. Ward, 448 U.S. 242 (1980) (U.S. Supreme Court; civil-vs-criminal second inquiry, clearest proof)
• Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (U.S. Supreme Court; seven-factor test for civil vs. criminal)
• City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001) (Tennessee Supreme Court; fifty-dollar-fine clause applies to punitive municipal-ordinance fines)
• City of Nolensville v. King, 151 S.W.3d 427 (Tenn. 2004) (Tennessee Supreme Court; municipal court judges lack power to empanel juries absent statutory authorization)
• Tenn. Att'y Gen. Op. 08-179 (Nov. 26, 2008) (civil traffic-camera analysis)
• Tenn. Att'y Gen. Op. 10-17 (Feb. 19, 2010) (analysis of § 55-8-198)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-048.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 21, 2014
Opinion No. 14-48
Validity of Legislation Authorizing Traffic-Enforcement Cameras on School Buses

QUESTIONS

1. Does House Bill 2196 of the 108th General Assembly (2014) (hereinafter "HB2196"), which provides that the owner of a motor vehicle is responsible for payment of a citation for passing a stopped school bus that is issued solely on the basis of evidence obtained from a traffic-enforcement camera, comport with due-process requirements?

2. Can a local municipality that installs cameras on school buses pursuant to HB2196 enforce and collect fines in excess of $50 consistent with Article VI, § 14, of the Tennessee Constitution?

OPINIONS

1. HB2196 is susceptible to a due-process challenge on the basis that it establishes a criminal, not a civil, enforcement scheme.

2. A municipal ordinance that tracks or mirrors HB2196 would likewise be susceptible to challenge as imposing punitive fines in violation of the Fifty-Dollar-Fine Clause in Article VI, § 14, of the Tennessee Constitution.

ANALYSIS

HB2196 would amend Tenn. Code Ann. § 55-8-151 relative to vehicles passing stopped school buses. Under current law,

[t]he driver of a vehicle upon a highway, upon meeting or overtaking from either direction any school bus that has stopped on the highway for the purpose of receiving or discharging any school children, shall stop the vehicle before reaching the school bus, and the driver shall not proceed until the school bus resumes motion or is signaled by the school bus driver to proceed or the visual signals are no longer actuated.

Tenn. Code Ann. § 55-8-151(a)(1). Failure to comply with this requirement is a Class A misdemeanor punishable by a fine of not less than $250 nor more than $1,000. Id. § 55-8-151(a)(5)(B).

Section 1 of HB2196 would amend subdivision (a)(5)(B) to provide that a violation is punishable by a fine of $300 for a first offense, $750 for a second offense, and $1,000 for a third or subsequent offense, and to further provide as follows:

The person cited for the violation may elect not to contest the charge and may, in lieu of appearance in court, submit the fine to the address provided on the notice of violation or citation. Any citation for the violation shall be considered a moving traffic violation for assessing points on the driving record of the person convicted pursuant to § 55-50-505 and for suspending the driver license of the person cited after the person fails to either pay the fine or appear in court pursuant to § 55-50-502(a)(1)(I).

Section 2 of HB2196 would add a new subsection (c) to the statute (and redesignate the existing subsections accordingly) to allow local education agencies to install cameras on school buses in order to detect violations. Under this new subsection, images recorded by the cameras are transmitted to the "appropriate local law enforcement agency" in order to determine whether a violation has occurred. If a violation is detected, a citation is mailed to the registered owner of the vehicle. HB2196, § 2 (new subdivision (c)(3)).

The registered owner of the motor vehicle shall be responsible for payment of any notice of violation or citation issued as the result of a camera; except, that the owner shall not be responsible for the violation if the owner submits documentation in accordance with § 55-8-198(e).

Id. (new subdivision (c)(2)).

The proceeds from any fine imposed by new subdivision (a)(5)(B) for a violation of § 55-8-151(a) that is based solely upon evidence obtained from a camera are to be allocated as follows: The local education agency receives 70% to defray costs associated with the cameras and a further 5% to defray administrative expenses; the chief law enforcement officer for the county or municipality in which the violation occurred receives 20% to be used for the purpose of school safety; and 5% goes to the State general fund without designation for any particular purpose. HB2196, § 2 (new subdivision (c)(6)).

1. A civil fine may be imposed constitutionally on the owner of a motor vehicle based solely upon evidence from a traffic-enforcement camera. See, e.g., Mendenhall v. City of Akron, 374 Fed. Appx. 598, 599-600 (6th Cir. Mar. 29, 2010) (unpublished); City of Knoxville v. Brown, 284 S.W.3d 330, 338-39 (Tenn. Ct. App. 2008); Tenn. Op. Att'y Gen. No. 08-179 (Nov. 26, 2008). Criminal penalties however, are attended by greater due-process protections. Due process requires that the government prove beyond a reasonable doubt every fact necessary to constitute the elements of a crime. Smith v. United States, 133 S.Ct. 714, 719 (2013). Mandatory presumptions in criminal cases, those that tell the triers of fact that they must find an elemental fact upon proof of a basic fact unless the defendant comes forward with evidence to rebut the presumed connection between the two, violate due process because they shift the burden to the defendant. State v. Pickett, 211 S.W.3d 696, 703 (Tenn. 2007).

It is an element of the offense of passing a stopped school bus that the "driver" engage in the proscribed conduct. Tenn. Code Ann. § 55-8-151(a)(1). By requiring that owners be responsible for the payment of citations issued as a result of a camera, HB2196 effectively creates a presumption that the owner is the driver unless the defendant comes forward with documentation to rebut the connection between ownership and operation of the vehicle. That presumption is not permissible if the penalty is criminal in nature.

As discussed in Tenn. Att'y Gen. Op. 10-17 (Feb. 19, 2010), distinguishing between criminal and civil proceedings follows a two-part inquiry under federal law. First, courts inquire whether the legislature intended to create a non-punitive civil scheme. See Kansas v. Hendricks, 521 U.S. 346, 361 (1997). If the answer is yes, courts secondarily examine the enactment to determine whether it is so punitive, either in purpose or effect, as to negate the intention to deem it "civil." See United States v. Ward, 448 U.S. 242, 248-49 (1980). Only the "clearest proof" will suffice to transform what has been denominated a civil remedy into a criminal penalty. Id. at 249. See also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (identifying seven considerations to guide this inquiry). Tennessee courts follow this same two-part test but ultimately ask whether the "totality of the circumstances demonstrates that the statutory scheme truly envisions the pecuniary sanction as serving to remedy or to correct a violation." City of Chattanooga v. Davis, 54 S.W.3d 248, 265 (Tenn. 2001); see Brown, 284 S.W.3d at 338. This examination focuses not on the personal impact of the sanction on the defendant but on whether the penalty truly serves a remedial role within the context of the statutory scheme. Davis, 54 S.W.3d at 265, 269.

In Tenn. Att'y Gen. Op. 10-17, this Office opined that the issuance of traffic citations based on evidence obtained from traffic-enforcement cameras pursuant to Tenn. Code Ann. § 55-8-198 does not violate due process. In reaching this conclusion, the opinion noted both the "evident preference for a civil label," see Tenn. Code Ann. § 55-8-198(a) (identifying such a citation as a nonmoving traffic violation), and the "modest fine" involved, see id. § 55-8-198(b)(3) (allowing person cited to submit, in lieu of appearing, a fine of not more than $50). Op. 10-17, at 3.

HB2196 differs in these two respects. The bill does not explicitly provide that it is creating a civil enforcement scheme. To the contrary, it provides that "[a]ny citation for the violation shall be considered a moving traffic violation" for the purposes of assessing points on the person's driving record and for suspending the person's driver license for failure to appear or to pay the fine assessed. HB2196, § 1 (new subdivision (a)(5)(B)). Cf. Mendenhall v. City of Akron, Nos. 5:06-cv-139, 5:06-cv-154, 2008 WL 748179, at 5 & n.25 (N.D. Ohio Dec. 9, 2008) (finding sanction under traffic-camera ordinance "is not punitive in that no points on the violator are assessed"), aff'd, 374 Fed. Appx. 508 (6th Cir. Mar. 29, 2010). HB2196 also provides that violations of Tenn. Code Ann. § 55-8-151(a)(1) are punishable by a fine of $300 for a first offense, $750 for a second offense, and $1,000 for a third offense. Cf. Mendenhall, 2008 WL 748179, at 5 & nn.24-25 (noting the absence of a progressive penalty for repeat violations and that a fine higher than $100 "may result in a different conclusion"). And in obvious contrast to Tenn. Code Ann. § 55-8-198(b)(3), while new subdivision (a)(5)(B) allows the person cited for the violation to submit, in lieu of appearing, "the fine," it does not specify an amount or set any maximum. These features of the HB2196 tend toward the conclusion that the bill establishes a criminal, not a civil, enforcement scheme.

Part of HB2196 does support the opposite conclusion. Fully 75% of the proceeds from fines imposed under the bill for violations based solely on evidence obtained from cameras would be allocated to defraying costs and administrative expenses, and an additional 20% would be "used for the purpose of school safety." HB2196, § 2 (new subdivision (c)(6)). And monetary penalties can serve a "truly remedial purpose" where they compensate for loss, reimburse for expenses, disgorge "ill-gotten" gains, provide restitution, and ensure compliance with a prospectively coercive fine. See Davis, 54 S.W.3d at 270. Nevertheless, the lack of an explicit civil label and features making its sanctions look more punitive than nonpunitive render HB2196 susceptible to a due-process challenge.

2. Article VI, § 14, of the Tennessee Constitution prohibits the laying of fines in excess of $50 unless assessed by a jury. This provision applies to proceedings for the violation of a municipal ordinance when the monetary sanction imposed is punitive in nature. Davis, 54 S.W.3d at 251. Absent statutory authorization to the contrary, municipal court judges lack power to empanel juries and hence cannot impose fines in excess of $50 for violation of a municipal ordinance absent a valid waiver of the defendant's Article VI, § 14 right. City of Nolensville v. King, 151 S.W.3d 427, 432-33 (Tenn. 2004).

HB2196 contemplates that municipalities will enact ordinances that mirror, substantially duplicate, or incorporate by reference the language of Tenn. Code Ann. § 55-8-151(a). Id. (new subdivision (c)(7)); see also Tenn. Code Ann. § 55-10-307(a) (allowing municipalities to adopt by ordinance any of the appropriate provisions of chapter 8 of the title). As discussed above, fines imposed for violations of Tenn. Code Ann. § 55-8-151(a) that are based solely upon evidence obtained from a camera are likely to be deemed punitive in nature. Fines imposed under a municipal ordinance that tracks or mirrors HB2196 are also likely to be deemed punitive. Such fines would be subject to the prohibition of Article VI, § 14.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JAMES GAYLORD
Assistant Attorney General

Requested by:
The Honorable Glen Casada
State Representative
25 Legislative Plaza
Nashville, Tennessee 37243