Government in Tennessee plays a game against the people in the state’s for-profit policing scheme developed around the creation of the driver license just before World War II. Take an administrative and civil matter (the driver license), criminalize activity under it (speeding, failing to have a functioning tag light, “expired tag”) and so create a large subject population by the mix-n-match use of both criminal and civil jurisdictions in the same action. Keeps cops busy. Keeps money flowing in. Proves the people need the state — for safety. It’s all about state convenience and state efficiency.

Georgiana Gordon (not the person’s real name) intends to nail the bureaucrats’ tongue to the table. She is insisting on the law in its fullest operation — to the T. She argues in this pre-plea remedy and avoidance in city court that her speeding ticket must be heard in Nashville as a contested case hearing in the department of safety. All matters, she insists, touching the license — including alleged violation of its “rules of the road” terms, as of speeding — are strictly administrative. She is following the Vladimir Bukovsky method of destabilizing and choking out the quasi-criminal world of administrative government in the growing unitary financial superstate.

Affidavit, Pre-Plea Remedy & Avoidance  

Comes now, accused Georgiana Gordon (hereinafter “the accused”), and does attest to the following matters pertaining to her arrest to be true, accurate, and complete, to the best of her knowledge.

1. The accused in the above-styled matter states that the court does not have subject matter jurisdiction; the accuser has failed to state a claim upon which relief may be granted, and has not invoked the court’s jurisdiction or presented a claim sufficient justiciable in the court, before which the accused would plan to make only a special appearance.

2. Accused submits the following pre-plea petition for dismissal for lack of subject matter and in personam jurisdiction.

Factual Background

3. On April 17, 2021, at approximately 11:20 a.m., Officer Smith (hereinafter “the officer”) pulled behind and flashed his blue lights, indicating the accused was being stopped and arrested for a crime.
   
4. The arrest took place at 945 Big Station Camp Blvd.
   
5. The officer said the accused was “speeding” and issued accused a summons, aka a “speeding ticket.” When accused asked him what would happen if she did not sign it, the officer coerced her to sign under threat of arrest. Under duress, the accused signed it and agreed to make appearance before the court. 

6. Speeding is Tenn. Code Ann. 55-8-152, regulating the operation of motor vehicles. The city has adopted these provisions by reference as allowed by T.C.A. 55-10-307, including speeding. At Art. 5, 16-137, the city of Gallatin ordinance says that it shall be “unlawful for any person to operate or drive a motor vehicle upon any highway or street” past 30 mph unless otherwise posted.
   
7. The charging instrument, a city of Gallatin summons, checks the box for the city corporation court, and not the Sumner County sessions court criminal docket.
   
8. City court “shall have jurisdiction in and over all cases” for violation of “the laws and ordinances of the City of Gallatin” (code Art. 10, sect. 1).
   
9. The city attorney shall “direct *** all litigation in which the city is a party, including the function of prosecuting attorney in the City Court when it is necessary; he shall represent the city in all legal matters and proceedings” (Article 9, sect. 2). The nature of the prosecution is civil, by the city attorney, which office is civil.

10. The officer did not obtain sufficient evidence as to whether the accused was using the roads in the city for commercial purposes or for-hire, subject to the privilege.

11. Tenn. Code Ann. Title 55 regulates the privileged field of activity called transportation. The city code denominates regulable activity in the city limits as “operating” or “driving” a “motor vehicle,” for which authority is state of Tennessee through the exercise of a state  privilege in the Uniform Classified and Commercial Driver License Act of 1988, regulating transportation on Tennessee roads, Title 55, motor and other vehicles.

Petition for Pre-Trial Dismissal

12. Accused demands the court dismiss the case, as it is not ripe for adjudication.
    
13. The court lacks subject matter jurisdiction because the party bringing the claim is acting outside of statutory authority, the court into which he files his allegation receives it prematurely, and because the accused is in no way known, as of July 30, 2021, at approximately 9:20 a.m., to be involved in privileged activity subject to the commercial and administrative authority of Tenn. Code Ann. Title 55.
    
14. No city officer can make an arrest without probable cause. In instant case, the officer alleges in the summons that he “clocked” the accused traveling at 79 mph in a 65 mph posted zone. For 4th amendment purposes, every use of blue lights by an officer and the stopping of a person alongside a roadway is an arrest. State v. Garcia, 123 S.W.3d 335, 343–44 (Tenn. 2003).

15. Only a member of the highway patrol can stop a motor vehicle traveling on the road without probable cause. “(c) Unless a law enforcement officer has probable cause to believe that an offense has been committed, no officer, except members of the Tennessee highway patrol acting pursuant to § 4-7-104, shall have the authority to stop a motor vehicle for the sole purpose of examining or checking the license of the driver of the vehicle.” (Tenn. Code Ann. § 40-7-103)
    
16. The officer demanded to see accused’s driver license. Accused did not present one. The officer issued a written warning for the accused’s address on an apparent record of a driver license not being updated. Accused herein rebuts any presumption that on the date at issue she was operating or driving a motor vehicle, pursuant to the privilege, evidence for which the officer did not make sufficient effort to obtain, he avers.
    
17. The officer’s summons puts an “X” in the box, “driver license law” and an “A” for ordinance 16.139, which refers to the corporation’s adoption of provisions of the state’s administrative statute on registration (chapt. 4), rules of the road (chapt. 8), equipment (chapt. 9),  insurance (chapt. 12) and driver licenses (chapt. 50).
    
18. Driver licenses are purely an administrative matter enforceable solely by the Tennessee department of safety and homeland security (DOSHS). “The members of the Tennessee highway patrol have jurisdiction and authority to make such investigation of operators of motor vehicles for hire as they may see fit to ascertain whether or not they are operating in compliance with § 65-15-109, and whether or not they are otherwise complying with the law relating to such operators, and they have authority to make arrests for any violation of title 65, chapter 15, or of any other traffic law of the state.” (Tenn. Code Ann. § 4-7-105)
    
19. The administrative nature of privilege enforcement is evidenced in the authority THP troopers have to stop motor vehicles without probable cause. No trooper “arrest” of a driver or operator (in adherence to procedure in 40-7-103) is criminal; the driver or operator, in commerce, agrees as a licensee to § 40-7-103. In instant case, the Gallatin officer made a criminal arrest of accused, criminalizing and threatening her with jail in a privilege and tax dispute the court intends to handle as a civil matter.

20. The court receives the allegation prematurely. Municipal courts routinely try cases (T.C.A. 55-10-305), in service of the department of safety and homeland security (DOSHS). Tenn. Code allows for shared fees,  55-10-306(b)(2), and information sharing  55-10-306(f)(1), for judicial resolution of “violations.”
    
21. All matters pertaining to driver licenses and licensed activity are purely administrative, however, and a claim against the accused as against her license follows the rule of exhaustion of administrative remedies. “[T]he Utilities Commission has never been held by this Court to be restricted by the technical common law rules of evidence in determining purely administrative questions, and we have held that the grant or refusal of a license to use public highways in commerce is purely an administrative question.” Hoover Motor Exp. Co. v. R.R. & Pub. Utilities Comm’n, 195 Tenn. 593, 616, 261 S.W.2d 233, 243 (1953).
    
22. The DOSHS commissioner has signed a covenant with the U.S. government for fiscal years 2019-2021 to receive federal funding to improve commercial motor vehicle safety called, “TENNESSEE Commercial Vehicle Safety Plan for the Federal Motor Carrier Safety Administration’s Motor Carrier Safety Assistance Program Years 2019-2021” (hereinafter, “TCVSP”).
    
23. In the TCVSP, the commissioner states on p.4– “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. The Tennessee Highway Patrol is the State’s lead agency for the Motor Carrier Safety Assistance Program (MCSAP) and does not fund any sub-grantees.”
    
24. TCVSP, on p. 6, states that the highway patrol’s overseer, DOSHS, enforces the operating and driving privilege. “The State of Tennessee has identified the Tennessee Highway Patrol as the lead agency for commercial vehicle enforcement.”
    
25. TCVSP Pages 6, 7: “The State of Tennessee, Highway Patrol executes the following activities to meet the requirements of 49 CFR part 350.213(b):… Activities to enforce federal registration (operating authority) requirements under 49 U.S.C. 13902, 49 CFR Part 365, 49 CFR Part 368, and 49 CFR 392.9a…[including] by prohibiting the operation of (i.e., placing out of service) any vehicle discovered to be operating without the required operating authority or beyond the scope of the motor carrier’s operating authority.”
    
26. Given that any dispute over a license, arising from a rules of the road allegation, is a tax and privilege dispute, the accused in an administrative and civil matter has right to be heard in agency at DOSHS, with claims as to subject matter jurisdiction to be established there first before adjudication, as to whether accused, given the alleged facts from the accuser, was exercising the privilege in her use of the public right of way on July 30th, 2021.

27. Concerning the accused’s use of the roads (whether for commerce, or for private purposes as a matter of right), the subject matter in this case is commercial, under Tennessee Code Annotated § Title 55, motor and other vehicles, and § Title 65, carriers.
    
28. Title 65, which grants the authority of DOSHS to regulate commercial activity, affirms the commercial nature of the privileged activity of operating a motor vehicle upon the public highways. “(a) It is unlawful for any motor carrier, contract hauler, or exempt for-hire motor carrier to use any of the public highways of this state for the transportation of person or property, or both, in interstate or intrastate commerce, without first having received a permit from the department or from any state designated as the base jurisdiction state for that carrier pursuant to 49 U.S.C. § 11506 [omitted] as amended by § 4005 of the Intermodal Surface Transportation Efficiency Act of 1991. Violators are subject to penalty pursuant to § 65-15-113.” (Tenn. Code Ann. § 65-15-107) (emphasis added)
    
29. Title 4 affirms the same in §4-7-105 – “The members of the Tennessee highway patrol have jurisdiction and authority to make such investigation of operators of motor vehicles for hire as they may see fit to ascertain whether or not they are operating in compliance with § 65-15-109, and whether or not they are otherwise complying with the law relating to such operators, and they have authority to make arrests for any violation of title 65, chapter 15, or of any other traffic law of the state.” (emphasis added)
    
30. DOSHS is the state authority designated for enforcement of privileged commercial motor vehicle activity and its licensing, and DOSHS is the specialized agency for ascertaining subject matter jurisdiction for any alleged violations of Title 55 and/or 65.
    
31. The principal movants in the dispute, via action of the Gallatin police department pursuing enforcement of adopted code 55-8-152, are DOSHS and/or the department of revenue, which handle disputes in agency before a hearing officer.

32. The movant in the case is the City of Gallatin, through an employee of its executive branch, a police officer. The officer  prematurely filed the charging instrument with this court.

33. DOSHS has exclusive jurisdiction over all matters pertaining to driver licenses and privilege enforcement upon those people using motor vehicles, according to the two titles above mentioned (§ Title 55 and § Title 65), and under agreement with the U.S. Department of Transportation that holds that the highway patrol is the “sole agency” for enforcement of the state’s interest in equity.
    
34. The administration of driver licenses and the operation of motor vehicles by licensees are subject to the uniform administrative procedures act as a state agency function. “The licensing as a privilege of the driving of any motor driven vehicle upon the roads, streets or other highways of the state is declared an exclusive state privilege and no tax for such privilege under any guise or shape shall hereafter be assessed, levied or collected by any municipality of the state.” (Tenn. Code Ann. § 6-55-501) (emphasis added)
    
35. Accused hereby gives notice to the court that she is unwilling to yield this right to have the matter heard administratively in the department of safety where available administrative remedies have not yet been exhausted.
    
36. In Colonial Pipeline Co. v. Morgan, the Tennessee Supreme Court recognized the necessity for exhausting administrative remedies before suits are brought to adjudication: 

The exhaustion doctrine has been recognized at common law as an exercise of judicial prudence. Justice Brandeis referred to it as ‘the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938). When a claim is first cognizable by an administrative agency, therefore, the courts will not interfere ‘until the administrative process has run its course.’ United States v. W. Pac. R.R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). Both courts and legislatures have recognized that the exhaustion doctrine promotes judicial efficiency and protects administrative authority in at least three ways.

First, sometimes ‘[j]udicial intervention may not be necessary because the agency can correct any initial errors at subsequent stages of the process[, and] the agency’s position on important issues of fact and law may not be fully crystallized or adopted in final form.’ Ticor Title, 814 F.2d at 735 (quoting Gellhorn Boyer).

Secondly, exhaustion allows the agency to develop a more complete administrative record upon which the court can make its review. Efco Tool Co. v. Comm’r, 81 T.C. 976, 981, 1983 WL 14906 (1983). 

Finally, cases that concern subject matter within the purview of administrative agencies often involve ‘specialized fact-finding, interpretation of disputed technical subject matter, and resolving disputes concerning the meaning of the agency’s regulations.’ West v. Bergland, 611 F.2d 710, 715 (8th Cir. 1979) (citations omitted). Requiring that administrative remedies be exhausted often leaves courts better equipped to resolve difficult legal issues by allowing an agency to ‘perform functions within its special competence.’ Id. (quoting Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972)). Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838-39 (Tenn. 2008).

37. Accused further demands pre-plea dismissal because the court lacks in personam jurisdiction over the person of the accused.
    
38. The officer is authorized by Gallatin municipal code to obtain written consent of an alleged offender to appear in court. “When a police officer halts a traffic violator other than for the purpose of giving a warning, and does not take such person into custody under arrest, he shall… issue to him a written traffic citation containing a notice to answer to the charge against him in the city court at a specified time. The officer, upon receiving the written promise of the alleged violator to answer as specified in the citation, shall release such person from custody.” (Sec. 16-31. – Issuance of traffic citations.) (emphasis added)
    
39. As stated in paragraph 5, the accused signed the notice to answer under coercion, which does not constitute a valid agreement to appear under any equitable principle. Driver licenses are issued and revoked “upon the principles of equity.” Sullins v. Butler, 175 Tenn. 468, 135 S.W.2d 930, 933 (1940).
    
40. Consent that is coerced is not effective consent. “(11) ‘Effective consent’ means assent in fact, whether express or apparent, including assent by one legally authorized to act for another. Consent is not effective when *** [i]nduced by deception or coercion” (Tenn. Code Ann. § 39-11-106).
    
41. Tenn. Code Ann. § 20-2-222, 20-2-223, and 20-2-225 provide the requirements according to civil procedure by which a court can exercise in personam jurisdiction. The officer, while operating under a presumption of accused’s engagement in a privileged activity, obtained the signature; the officer’s presumption did not give him the authority to issue a summons.

Analysis

42. When the officer flashed his blue lights, initiating the arrest, he did so without probable cause, nor did he have a valid warrant required by Title 40-7-103, arrest by officer without warrant. He is not a member of the highway patrol, and he made no attempt to obtain evidence that would support the presumption of accused’s participating in a privileged activity at that hour.
    
43. After the officer stopped accused, and obtained no evidence of accused’s committing a violation, he failed to release her; instead, the officer continued under color of law to charge accused with an administrative and equitable wrong (civil harm) under pretense of it being a crime, depriving her of her 4th amendment right against unreasonable searches and seizures and the right to be secure in her person, papers, and effects.
    
44. The officer is bound by duty to act within his statutory authority. He breached this duty when he proceeded to charge accused with a crime without the necessary prerequisite evidence, being that of taxable and privileged activity. Accused should have been released without being charged at the moment that the officer was unable to substantiate his presumption by having obtained no evidence of commercial activity.
    
45. The court received the allegation prematurely when the officer filed it with the court instead of sending the matter to the DOSHS where administrative matters are heard. As a municipal police officer he failed to take the allegation, regarding the commercial privilege administered exclusively by the state, to DOSHS. The doctrine of exhaustion of remedies requires that administrative matters are to be heard in agency by a hearing officer or administrative judge before a party can file a suit in a judicial court.
    
46. Case law has consistently recognized the importance of the exhaustion doctrine:

When a statute provides for an administrative remedy, an aggrieved party must ordinarily exhaust the remedy before seeking to utilize the judicial process. Thomas v. State Bd. of Equalization, 940 S.W.2d 563, 566 (Tenn. 1997); Bracey v. Woods, 571 S.W.2d 828, 829 (Tenn. 1978). In Thomas, this Court observed that the exhaustion of remedies doctrine allows an administrative body to ‘(1) function efficiently and have an opportunity to correct its own errors; (2) afford the parties and the courts the benefit of its experience and expertise without the threat of litigious interruption; and (3) compile a record which is adequate for judicial review.’ Thomas, 940 S.W.2d at 566. Nevertheless, unless the statute providing for an administrative remedy requires exhaustion ‘by its plain words,’ an administrative appeal is not mandatory. Id.; see also Reeves v. Olsen, 691 S.W.2d 527, 530 (Tenn. 1985). Absent a statutory mandate, the exhaustion of the administrative remedies doctrine is a matter of judicial discretion. Thomas, 940 S.W.2d at 566 n.5; Reeves, 691 S.W.2d at 530; State ex rel. Moore & Assocs., Inc. v. West, 246 S.W.3d 569, 577 (Tenn. Ct. App. 2005). Ready Mix, USA, LLC v. Jefferson County, Tennessee 380 S.W.3d 52 at 63-64. (emphasis added)

47. The moving party, in its endeavors to enforce motor vehicle and transportation laws via TCVSP pursuant to CFR Title 49, is obligated by statute to the doctrine of exhaustion of administrative remedies: “These rules do not relieve the requirement that a party exhaust its administrative remedies before going to court. Any action appealable as of right must be timely appealed. If an appeal, discretionary appeal, or petition seeking reopening is filed under § 1115.2 or § 1115.3 of this part, before or after a petition seeking judicial review is filed with the courts, the Board will act upon the appeal or petition after advising the court of its pendency unless action might interfere with the court’s jurisdiction.” (49 CFR § 1115.6 – Exhaustion of remedies and judicial review.)
    
48. The commissioner of safety certified that, “The State will ensure that violation sanctions imposed and collected by the State are consistent, effective, and equitable.” (TCVSP item 11 on page entitled “Certification of MCSAP Conformance (State Certification)- FY 2018”). In the interest of maintaining these principles, administrative remedies must be exhausted in agency. 

49. The protocol for an in-agency hearing as to the facts and subject matter jurisdiction is outlined at Tenn. Code Ann. 4-5-301; accused also has right to a pre-hearing conference, T.C.A. 4-5-306, a hearing on whether he is subject to the officer’s claims about her activity, and a final order, pursuant to T.C.A. 4-5-314. Further administrative remedies remain available to the accuser in an administrative hearing pursuant to Tenn. Code Ann. § 4-5-223 (a). Declaratory orders.

“(a) Any affected person may petition an agency for a declaratory order as to the validity or applicability of a statute, rule or order within the primary jurisdiction of the agency. The agency shall:

(1) Convene a contested case hearing pursuant to this chapter and issue a declaratory order, which shall be subject to review in the chancery court of Davidson County, unless otherwise specifically provided by statute, in the manner provided for the review of decisions in contested cases; or
(2) Refuse to issue a declaratory order, in which event the person petitioning the agency for a declaratory order may apply for a declaratory judgment as provided in § 4-5-225.

50. The officer failed to exhaust such available administrative remedies in the department of safety before seeking adjudication, depriving accused of her right to have the matter heard administratively and demands to exercise this right at the agency. Because the court received the allegation prematurely, it lacks subject matter jurisdiction over this case, and should dismiss it.

51. Accused was not known to have been engaged in a privileged activity at the time of her arrest subject to Title 55. It must first be proven with evidentiary facts that she was using the roads for commercial activity before she can be cited for violating 55-8-152. Accused rebuts the presumption of commercial activity; she did not present a driver license to the officer, and cars with valid and current registration plates, tags, and insurance are merely commerce ready. Carriers are only presumptively acting commercially at any given hour on any given day, so these instruments cannot be used to substantiate the officer’s  presumption that accused was engaged in commercial activity.
    
52. Obtaining a driver license, use of a car registered with Sumner County as a motor vehicle, and having proofs of insurance are nowhere known to divest from accused the liberty to use a car on the roads for pleasure and other private purposes outside the privilege. “[T]he primary use of the state highways is the use for private purposes; that no person is entitled to use the highways for gain as a matter of common right” Hoover Motor Exp. Co. v. Fort, 167 Tenn. 628, 635 (Tenn. 1934). It is possible for accused to have been engaged in such non-regulable private activities.
    
53. The lack of evidentiary facts fails to establish the presumption of accused’s alleged participation in privileged activity of operating a motor vehicle for commercial purposes, and therefore refutes any alleged violations of 55-8-152 and the driver license law. A statute cannot be enforced against a party who was not at the time subject to its construction.
    
54. Title 20 ch. 2 provides the conditions under which the court may exercise in personam jurisdiction according to civil procedure; however, it does not necessarily confer it onto the court. The action at this court requires the proper service of the summons and express consent from the defending party in order to exercise in personam jurisdiction.
    
55. Although code 16-31 allows an officer to obtain the written agreement from a “traffic violator,” accused did not fit the designation of a “traffic violater.” The officer’s presumption is not satisfactory for code 16-31 to apply; therefore, accused was not obligated by the code to sign the summons.
    
56. The civil summons was served under threat of force and without probable cause of accused committing a violation; accused did not provide effective consent, thereby invalidating the obligation of the agreement to appear. Without the accused’s consent, the court has not gained in personam jurisdiction  according to civil procedure.
    
57. Title 40 provides the condition under which the court may exercise in personam jurisdiction according to criminal procedure. “No person shall be put to answer any criminal charge, but by presentment, indictment or impeachment; provided, that, in accordance with this chapter, an accused represented by an attorney may waive the right to be tried upon presentment or indictment and consent to prosecution by information.” (Tenn. Code Ann. § 40-3-101). Accused was not charged by presentment, indictment, or impeachment, nor did she consent to prosecution by information; therefore, the court has not gained in personam jurisdiction over the accused according to criminal procedure, either.
    
58. Accused has a property interest in this matter – a driver license for one GEORGIANA GORDON. The allegation against accused jeopardizes her interest in said license, and should be heard in the department of safety to preserve her right to due process.
    
59. The two parties in this case have enough of a controversy over standing and jurisdiction that, in the interest of fairness and expediency, a hearing within the state agency (DOSHS), which has exclusive authority of driver licenses, is appropriate.

Argument

60. The above mentioned facts and law demonstrate that the court does not have jurisdiction. The accused demands that the court dismiss this matter and allow the accuser to pursue his allegation in an administrative hearing at DOSHS.
    
61. “The trial court, by reason of plaintiff’s failure to exhaust her administrative remedies, acquired no jurisdiction over the plaintiff’s claim. When it clearly appears that the court lacks jurisdiction, the court has no authority to reach the merits. In such a situation the action should be dismissed for want of jurisdiction.” Melo v. United States, 505 F.2d 1026, 1030 (8th Cir. 1974)
    
62. “Courts derive their powers to adjudicate not from the parties, but from the law. A Court acting without jurisdiction of the subject matter, or beyond the jurisdiction conferred upon it, is therefore acting without authority of law and its judgments and decrees in so acting are void and bind no one. Sheffy v. Mitchell, 142 Tenn. 48, 215 S.W. 403.” Gillespie v. State, 619 S.W.2d 128, 129 (Tenn. Ct. App. 1981)
    
63. “The lack of subject matter jurisdiction is a nonwaivable defect that may be raised at any time to justify dismissal of a pending action. Id.” Ambrose v. Welch, 729 F.2d 1084, 1085 (6th Cir. 1984)
    
64. The accused need not aver these details or speak of them except obliquely, in the alternative, which are in the realm of fact to be established by the court or a jury in the event this petition fails in its errand. However, these averments are grounds for concern on the part of this woman, GEORGIANA GORDON, aggrieved in the injury to her person, papers, effects, substantive rights, and civil rights at the hands of a City of Gallatin employee.
    
65. Affiant further requests that the court award affiant any court costs and any additional relief the court deems fitting in the interest of justice.
    
66. I attest that the foregoing is true and accurate to the best of my knowledge. 

Further affiant sayeth naught.

This 20-page legal notice lets you fight back vs. illicit ‘traffic stops’ — sue for damages, have defense in your criminal case