Authority ex nihilo; trooper agency seems to exert power apart from law

A Tennessee highway patrol trooper takes part in a little PR with a boy, who enjoys sitting on his transportation enforcement motorbike. (Photo department of safety and homeland security)

I reveal here a fascinating problem that the corporate state makes for itself, that is creating policies and procedures that go beyond the scope of statute. The first document is a stste rebuff reply to an open records request. Below it, my follow-up letter demanding answers in the form of documents and policy and rules.

The question is how can an executive branch agency suspend a privilege for which no application has been previously made?

The letter from Deputy Council Lizbeth Hale indicates that in Hamilton County and Lawrence County, for a period of several years, thousands of letters have been sent out telling people that their driver license privilege has been suspended. For some of these people on the list, no evidence exists that they ever had a driver license or ever sought one. The law requires certain misdeeds be on the record before a license or privilege can be suspended.

My inquiry also raises questions about the so-called driver license privilege. It appears to be a non-statutory state privilege, not one approved by the legislature. The legislature approves, as I indicate in my letter, certain occupations as privileges. Driving is not an occupation or calling.

I won’t solve the mystery for you here. But the question touches on an area of valuable research being done today in Tennessee, and that is the authority of state government, through the DOS, to regulate transportation, which is the for-profit use of the roads apart from the private use of the roads by travelers.

The distinction between traveler and people involved in transportation is essential and deliberately overlooked by the executive branch, by police departments in every city and by sheriff’s deputies in each of Tennessee’s 95 counties.

I believe that Mrs. Hale will not be able to produce documents policies and procedures touching on this suspension program because it is made up simply on the spot and has become a custom for which there is no lawful authority. Only in litigation or a defense in a criminal case can the bottom of this matter be plumbed.

DOS demands payment

Tulis asks how driving privilege ‘suspended’ for people who did not apply for license

I thank you for your response of Nov. 8, but wish to ask you to cease “the process of retrieving, reviewing, and/or redacting the requested records,” given the size of your proposed response to my request. I withdraw my request for copies of the estimated 3,000 letters sent to Lawrence and Hamilton counties between June 1 2013 and Oct. 25 2017.

I persist, however, in my request for “any and all nonprivileged files, documents, correspondence, emails, printed letters, directives, policy statements, protocols, rules, field directives, office directives, memoranda or other documents *** pertaining to the practice of administratively creating a driver license for any state resident apart from his signature on a departmental driver license application.”

You rebuff my inquiry by saying “the department does not issue physical driver license credentials to persons who have not made an application for a license. However, the department does maintain records on persons who do not have physical driver licenses but who have been convicted of traffic offenses which may require the revocation or suspension of their driving privileges.”

How does one have a driving privilege that is revoked or suspended apart from having the license which is merely the evidence of the privilege? The privilege pre-exists the license. The license is a proof of the privilege, and cannot exist apart from the privilege. If one has the privilege, one has within a short time the license from the hand of your department, or that motor vehicle regulator of some other state.

A privilege is not a slight thing, Mrs. Hale. As you know, privileges must be applied for and connote entry into an activity barred and made illegal apart from one’s application to the state for the privilege of doing that otherwise illegal and forbidden act (such as lawyering or accountancy).

I ask you and your department to act in good faith. You pretend that it is possible to have a privilege and not have a license. My open records request is clear. I demand policy documents that discuss how people can have a Tennessee “driving privilege” suspended or revoked if they do not have the privilege to begin with.

For someone to be charged for “driving on a suspended license,” one must first have a license. The charge is driving on a suspended license, not driving on a suspended privilege. At TCA 55-10-306. Record of traffic cases — Report of convictions to department, the code lists offenses as follows: “[T]the offenses of reckless driving, driving while intoxicated or drugged, drag racing, driving while unlicensed, driving on a revoked or suspended license, driving an unregistered vehicle, driving a vehicle with revoked registration, failing to stop after a traffic accident, or vehicular homicide,” and in which the offense of “driving *** on *** suspended license” is to be reported with the following details, “Driver license number, class of license, and state of issuance; (4) A statement as to whether or not the license is a commercial driver license *** ,” etc.

I ask for policy and other materials related to what you describe as “the revocation or suspension of *** driving privileges” apart from any actual license. I am asking about these “driving privileges” and how they are created if they are not applied for, granted to (by DOS), and held by the driver and for one cause or another suspended or revoked.

A privilege is described as follows at TCA 67-4-101. Privileges taxable — License required. “The occupations, businesses and business transactions deemed privileges are to be taxed, and not pursued without license, and shall be such as are declared by this code or by legislative acts that are not to be deemed repealed by the enactment of this code.” A list of privileges ‡ in Title 67 overlooks at least one privilege, one in Title 65, that of jitney operator, subject to your department as a regulable activity. All privileges are for occupations, and to obtain any one of them, a qualified person must make signed application.

Amendment of Tulis open records request, request for clarification

I hereby I amend my records request to remove the dates in the original request, these lines being “June 1, 2013 , through Oct. 25, 2017.” Removal of this time limitation will allow you to bring up for my review older protocols, policies, correspondence, non-privileged material that describe this process of giving someone a privilege who did not apply for it.

Request for clarification: You say you have 28 form letters touching on “withdrawal of driving privileges.” Does mean they comprise of 56 pages?

Your letter of Nov. 8 implies there are no nonprivileged files, documents, correspondence, emails, printed letters, directives, policy statements, protocols, rules, field directives, office directives, memoranda or other documents meeting with my request. I am skeptical of this claim. I demand answers about the practice of suspending people’s driving privileges if they don’t have a license that evidences its existence.

Respectfully yours, David Tulis, etc.

‡  Privileges are for the following callings and occupations, TCA 67-4-1702.  Occupations subject to tax: lobbyists; agents; broker-dealers; investment advisers; accountants; architects; brokers; engineers; and landscape architects. audiologists; chiropractors; dentists; optometrists; osteopathic physicians; pharmacists; physicians; podiatrists; psychologists; speech pathologists; veterinarians; attorneys; and athlete agents.