Facing a budget deficit that could reach $800 million, Tennessee Governor Phil Bredesen (D) is looking at all options to bring the books back into balance. Bredesen's former legal counsel, Robert E. Cooper, Jr. was appointed state attorney general two years ago. Last week, Cooper did his part by issuing a ruling designed to promote the use of photo ticketing by taking on constitutional arguments commonly leveled against such programs.

"It is an accepted principle that enactments of the General Assembly are presumed constitutional," Cooper wrote. "Whenever the constitutionality of a statute is attacked, courts are required to indulge every presumption in favor of its validity and resolve any doubt in favor of, rather than against, the constitutionality of the act."

The legislature in 2008 embraced red light cameras while Bredesen officials were quietly exploring the possibility of adopting a freeway speed camera setup similar to that used in Arizona. Cooper cited the rational basis test as establishing the constitutionality of the legislature's actions.

"If any reasonable justification for the law may be conceived, it must be upheld by the courts," Cooper said, citing the Tennessee Court of Appeals. "Absent implication of a fundamental right, a legislative act will withstand a substantive due process challenge if the government identifies a legitimate governmental interest that the legislative body could rationally conclude was served by the legislative act."

The appeals court made similar arguments in a July decision that stated there is no problem in allowing prosecutors to presume the owner of a vehicle is guilty. Shifting the burden of proof presents no constitutional difficulty as long as the state can establish that a vehicle committed a crime (read decision). According to Cooper, the only protection the legislature allows is that private vendors may not decide who is guilty.

"The statute makes no provision for a private company to monitor and control a traffic light or to issue a citation," Cooper wrote. "Applicable law enforcement personnel are the only ones presently authorized to issue this type of citation. It is the opinion of this office that the statute prohibits private vendors from making the determination, based upon photographic evidence, that a traffic violation has occurred, since the statute specifically requires the applicable law enforcement office to make such determination."

All cities with photo enforcement programs hire private contractors to operate every aspect of the ticket issuing process. Although these programs often claim a police officer personally reviews every photo, cross-examinations in court trials have shown this usually amounts to a "bulk approval" where the officer clicks a mouse button and the vendor attaches his signature digitally to every ticket before dropping it in the mail (view San Diego, California court decision). If Cooper is right, the "monitoring" of video footage cannot be outsourced and the bulk approval process would be illegal under Tennessee law.

A copy of the ruling is available in a 35k PDF file at the source link below.