In debate with lawyer, I start with constitution, see limits in law

The abuse of the state’s motor vehicle law creates immense problems for poor people, who are under an effective death sentence in being banned from the use of private automobiles if they have unpaid “court debt” and other obligations to state government. (Photo David Tulis)

Phil, I suggest your starting point in evaluating my claims should be the constitution and not the state. For that appears your actual starting place.

Any encroachment against the rights of the people — if there have to be any — has to be through enactment of statutes properly written and their enforcement properly limited. 

By David Tulis / NoogaRadio 91.7 FM

[This post continues my dialogue with Phil the lawyer, who says a more natural reading of the law is that given by the courts: That the transportation law applies to everyone, not just people in the transportation industry. Lawyer Phil’s comments are in bold.]

The only way under the constitution that the state can encroach upon the people’s free communications and movement on the roads that belong to them is if they do something on those roads that affect the public interest.

The above three paragraphs provide another good example of why I say that you often sound like you are making a constitutional challenge to the statute. After my previous indications that it sounded like you were challenging the constitutionality of the statute, you stressed that you were not. Now you are saying “any encroachment against the rights of the people . . . has to be through enactment of statutes PROPERLY WRITTEN AND THEIR ENFORCEMENT PROPERLY LIMITED.” You also say “THE ONLY WAY UNDER THE CONSTITUTION THAT THE STATE CAN ENCROACH . . .”

 This is classic constitutional challenge language. Are you challenging the constitutionality of the statute or not? You can’t (or shouldn’t) use classic constitutional challenge language and then get frustrated when attorneys and judges are interpreting your approach as making a constitutional challenge to the statute. 

If you aren’t challenging the constitutionality of the statute, why are you suggesting that my starting point in evaluating your claims should be the constitution? If someone is being charged with violating a statute, the ordinary starting place is to see if they really are violating the statute based on the wording of the statute. If they aren’t, you don’t have to look any further. If they are, then you might look further and challenge the constitutionality of the statute (either on its face or as applied). 

‘Not buying your argument’ on ‘natural reading’

The state has, in Title 55, imposed rules on part of the activity of the traveling public. And that is the commercial part.

​I’m still just not buying your argument that the natural reading of the statute leads one to the conclusion that it only applies to commercial drivers. 

I believe you are confusing your want for regulation of the “noncommercial drivers” on the road as you call them vs. the actual limits of state authority under a constitution.

​I think you’re wrong, but I’ll try to be open to the possibility that bias is affecting my analysis. In general, however, I really am pretty good at divorcing my objective analysis from what I want the results to be. 

You want there to be regulation and offer hilarious examples of blind 9 -year-olds behind the steering wheel as to why we have to have it. 

​I acknowledge the examples are extreme, but they make a point. I note that you have not responded to the issue of whether you really believe there shouldn’t be ANY regulation of noncommercial drivers on public roads. Do you really believe that? If so, you wouldn’t be in favor of regulating the extreme examples I presented. But whether you and I think there should or should not be regulation is not really the key issue at present. The key issue at the moment is “what does the law say?” After we determine that, we can determine — as a matter of policy — whether that law is good or bad and whether it should be changed.

Tenn. Code Ann. Title 55 is constitutional, I submit, because it governs one type of use of the road and it does not offend any of our rights under the state or federal constitutions. It doesn’t affect the right of travel at all (Booher case).

Accurate summary of Tulis position

I am trying to understand your position. Is the following a correct statement of your position?

1. The State is constitutionally prohibited from restricting or regulating individuals’ rights of travel on public roads so long as the travel is noncommercial.

2. Title 55 only purports to regulate or restrict commercial travel.

3. Therefore Title 55 is constitutional. 

I realize the above is not a perfect syllogism because theoretically there could be other reasons for Title 55 to be unconstitutional. I’m just trying to get a good handle on exactly what your position is.

Tile 55 does not offend the rights the people because it is designed to protect their rights and protect them on the road. 

From whom? 

From those people who make a living on the roads by transporting people or goods for hire.

 And so, again, your position is that Title 55 does not purport to protect people from noncommercial drivers, correct?

Title 55 regulates in the public interest — through the department of safety — the commercial use of the road by people who are not exercising a right. They are exercising a privilege.

And my interpretation of the statute is that it — as evidenced by the plain and natural reading of the statute — regulates more than commercial use. As I’ve noted before, you and I may never come to agreement on this issue because we apparently have differing interpretations of what the statute is purporting to say.

The nexus of control is the privilege system. 

What exactly do you mean by “the privilege system.” This is generally not a term regularly used “in the law.”

Are you perhaps arguing that the State is only permitted to regulate privileges and that if something is not a privilege, the State has no constitutional authority to regulate it whatsoever? 

I’m not trying to argue here. I’m still trying to fully understand your position (although if this is your position, it again sounds like you are making a constitutional challenge to the statute).

I sent you Philips v. Lewis to help you establish the essential elements a privilege to be proven in a criminal case. The essential element in every criminal prosecution of a Tennessee and/or other person on the road for a “traffic offense” is occupation or calling or trade. 

Essential element in traffic stop: Privilege

And this gets back to our different reading of the statute. I don’t think a natural reading of the statute leads one to the conclusion that the statute is only purporting to regulate commercial activities or privileges. In my opinion, your reading of the statute is very activist oriented and is not seeking first the intent of the drafters. 

As I have reported in administrative notice and elsewhere, the elements of privilege include the paperwork associated with commercial transportation. Bills of lading, bills of way lading, receipts, contracts, passenger lists, invoices. These are the evidences that the THP is authorized to collect in any enforcement action under Title 55.

The essential element that must be proven is privilege, and the officer at a criminal hearing or trial must be able to prove these elements with facts. The facts would include such documentation and also statements by the driver or operator as recorded on his camera system. 

The two preceding paragraphs assume that the statute only purports to regulate commercial use of the roads. Again, I believe that is where our two positions irreconcilably diverge. If we can’t come to agreement on this particular point, I don’t think there’s anyway we will come to agreement on the broader issue you are trying to address. 

In a criminal matter the state must state and prove all the essential elements of a crime. Rarely do cops and prosecutors do well in this duty. The defense bar ignores the proper defense in all cases. The accused must be proven first to be exercising the privilege, either as a common carrier or a private carrier (only two types).

This addresses the same issue again. The preceding paragraph can only be correct if the statute only purports to regulate commercial use of the roads. If you are wrong on that point, your previous paragraph is wrong.

He must have his papers in order. He must have a valid driver license for the category of vehicle he is controlling. He must have his car or truck registered as a motor vehicle, the plate being the proof of tax paid. He must have insurance to protect the traveling public.

These are what Title 55 requires of all licensees exercising the privilege. These are required to operate or drive a motor vehicle. A person operating a motor vehicle is not exercising a right whatsoever. He is enjoying the privilege of using a car in a commercial capacity. That’s in line with state law. That’s in line with federal law at USC 49. It is by application, it is by payment of a fee, it is taxable because it evokes the police power in the details of the transportation business. He is subject to police power under regulation in the public interest, for the public health safety and welfare, because he is using the roads for private gain and profit. He is not exercising a right. See my notice for this discussion, and look at the early cases.

Current practice is oppression and fraud. Police and sheriff’s deputies are exercising an authority given to the THP only. ​

Would you agree that it is not oppression and fraud if the natural reading of the statute is that it does purport to regulate noncommercial use also? It seems to me that it just keeps coming back to that point. Or are you saying that regulating noncommercial use of the roads is, by its very nature, oppression and fraud even if the natural reading of the statute leads one to the conclusion that noncommercial use of the roads is regulated. 

Tenn. Code Ann. 4-7-104. Duties. 

It is the duty of the members of the Tennessee highway patrol, under the direction of the commissioner of safety, to:

(1) Patrol the state highways and enforce all laws, and all rules and regulations of the department of transportation regulating traffic on and use of those highways; and

(2) Assist the department of revenue and the county clerks of the state in the collection of all taxes and revenue going to the state, and in the enforcement of all laws relating to same.

Phil, where’s your DOT number on your car? Where’s your DOT paperwork? Are you compliant?

Same point again. That only matters if you are right about the most natural reading of the statute. It doesn’t matter if I am right. 

Is it correct to assume that just because a department of transportation regulates taxable activity that we have no rights to use the roads and boulevards, except as licensees under DOT?

Same point. What does the statute say? You and I read the statute differently.

And where are delegation orders for Chattanooga police department and Hamilton County Sheriff’s office to regulate transportation? What is their lawful authority? That means, where are the writings of authority, Phil?

Not sure I’m following you here. I can envision that you may be making one of a couple of different arguments, but I won’t go down that path at this time since I think the other issue (i.e., what does the statute say) seems to be the critical issue.

Phil disputes ‘transportation law’

Every year the commissioner of safety assures Washington that THP alone enforces transportation law.

​How are you defining “transportation law” in the preceding sentence? Because, generally, my reaction to that statement is that it is inaccurate unless you very narrowly define transportation law. The key statement: ““The Tennessee Highway Patrol of the Tennessee Department of Safety and Homeland Security is the sole agency in the State of Tennessee responsible for enforcing laws related to size, weight, and safety regulations for commercial motor vehicles. ​ 

​I note that the preceding sentence is very different from the first sentence in this paragraph. They are not one and the same. You cannot infer the accuracy of the first sentence from the second sentence. 

“The Tennessee Highway Patrol is the State’s lead agency for the Motor Carrier Safety Assistance Program, and does not fund any sub-grantees.” (italics added).

The document is “Tennessee commercial vehicle safety plan for the federal motor carrier carrier safety administration’s motor carrier safety assistance program Fiscal year 2018.” Click the link.

​But this document doesn’t tell us that noncommercial use of the roads is not regulated.

Phil, transportation enforcement is upon for-profit use of the road for hire upon CMVs (commercial motor vehicles). 

​Based on my natural reading of the statutes, it is upon that AND MORE (i.e., also noncommercial use of the roads). 

Every CMV operator must have his papers in order. He uses the roads under a lowered threshold for probable cause. That is, he can be stopped (arrested) for infractions, which are far less than crimes. Commercial enforcement reduces proper probable requirements and gives pretext for arrest. As State v. Garcia explains, when the blue lights go on, that is arrest. Arrest and criminal charges for expired lights, speed, touching the white line, tinted windows (James Myron Mitchell traffic stop by Deputy Wilkey). 

Really? A body cavity search and arrest under Title 55, administrative law?

Title 55 is not “administrative law.” It is statutory law. All statutes are statutory law. Administrative law is law promulgated by administrative agencies. 

Half of Wilkey’s abuses are because Hammond has ignored notice 653 days and refuses to make traffic stop protocol reform required under my proper, unrebutted notice.

Phil, courts uphold your position. You should be calm and happy in talking with me about these matters of justice. There is no free use of the road. All must be subject to police power. You espouse the conventional opinion of the bar and the judiciary, which pretend we the people of Tennessee (called the “free people” in the constitution) are banned from the roads. 

Once again, it all comes down to the natural reading of the statute. I think the courts are “upholding my position” because that is the most natural reading of the statute. I think your reading is a strained, activist reading. 

We are banned UNLESS, UNLESS we enter into an equitable relationship to become freight carriers under state privilege.

​I don’t see where the statute says that.

Is it possible that I am seeing anything that is even slightly unconstitutional, Phil?

​Like pregnancy (you are either pregnant or you’re not), a law or an act is either unconstitutional or it isn’t. I don’t think the “slightly unconstitutional” phrasing is helpful to this analysis. 

Do you get a whiff at any point of oppression, malice, abuse, racism, police-state tactics and the like? Or is it just in my imagination? ​

It depends on exactly what you mean here. I absolutely agree that the police sometimes engage in acts of oppression, malice, abuse, racism and police-state tactics. But this issue — the issue of how individual officers act in individual situations — is a different question from whether the statute purports to regulate noncommercial use of the roads. And if you are contending that regulation of noncommercial use of the roads is — by its very nature — unconstitutional, then that is yet another separate question. Are you saying that there is a constitutional right to travel on public roads without any regulation or restrictions whatsoever so long as you are not traveling for commercial purposes? If so, language in the constitution are you relying upon? Or what language in case law are you relying upon?

You should read the defense of private travel (“driving”) by U.S. district judge Aleta Trauger in 2017. She comes halfway to my position in these matters and says people effectively have to be able to use the roads to live and fulfill essentials of ordinary life. She overturned the state revocation of DL for unpaid court debt law.

I am looking for an attorney to make big money going after abuses of this law, especially against poor people and African-Americans. I am looking for someone who understands the system as it is, and is willing to sue on grounds of bad faith oppression in the misuse of Title 55. 

You would have to convince me that a natural reading of the statute indicates that the statute was only intended to apply to commercial use of the roads, and I’m just not seeing that. 

My goal is to stop ultra vires enforcement within 3½ years, by which time I hope to work on other projects.

Read my essay on the doctrine of notice next. It’s all there how the doctrine works. And you’re wrong to say it has “no impact whatsoever” unless a judge approves. The job of response to notice is that of the party notified, either as to facts and law. Notice has power apart from adjudication, sir.

‘Strained, activist reading’ of law

I think you may be misunderstanding my point here although it may be that I’m misunderstanding yours. So let me try to approach it a little differently. Would you agree that the whole point of notice (in this context) is to give the reader notice of what the law is/says? If so, isn’t notice then inherently irrelevant if it did not accurately state what the law is/say? So, if you are subsequently relying on your notice during litigation, don’t you inherently have to convince the judge that your notice accurately stated the law? 

My close study (and report) on statutory construction suggest you are ignoring basic rules on how law is read.

​What rules of statutory construction are you saying I am ignoring? What “basic rules on how law is read” am I ignoring? It all starts with a natural and ordinary reading of the statute. The primary rule of statutory construction is to ascertain and give effect to the intention and purpose of the legislature. And to determine that intent, we look to the natural and ordinary meaning of the statute itself without forced or subtle constructions that would limit or extend the meaning of the language. Am I violating that? Are you? If I am violating that, show me how. I’m open. I really am. But show me the wording in the statute that expresses an intent to regulate ONLY commercial use of the roads. Does it all rest simply on the use of the word privilege? Or does it rest on something else?

The David Tulis show is 1 p.m. weekdays, live and lococentric.

Sue cop as oppressor, defend self in traffic court: Transportation Administrative Notice


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