Brenda Simpson, left, challenges criminal traffic stops as a war against the people violating the doctrine of exhaustion of administrative remedies under privilege law. She argues driving and operating a motor vehicle constitute a privilege. Pam Williams is at right. (Photo by David Tulis)

Introduction

In this traffic case appellant asserts her right to equal treatment like that afforded to holders of other privileges in Tennessee, namely, the right to a hearing under the authority that issues the license for the privilege, that right protected by the state’s duty to exhaust its administrative remedies.

This petition does not ask the court to weigh the merits of the state’s case in circuit court nor appellant’s defenses, made without aid of counsel. It does not challenge the prejudicial controlling presumption of the lower court that no use of the public right of way is allowed except under privilege, which dispute is in the merits of her defense.

Rather the court is asked to discern the proper court in which the merits might have been disputed in compliance with the law. Under the doctrine of exhaustion of administrative remedies, the hearing over her use of the public right away should have been heard before the commissioner of safety in a contested case.

The Department of Safety and Homeland Security (DOSHS) issues driver licenses in chapter 50 of title 55. DOSHS at T.C.A. § 4-3-2005(a) is authorized to “conduct contested case hearings under the Uniform Administrative Procedures Act” (UAPA).

Instead of exhausting its administrative remedies as petitioner argues that it should, the state prosecutes appellant in criminal court in an invidious class discrimination among parties in privilege.

Appellant has the right to be heard before the commissioner under the privilege. Universally, as law provides and exhaustion requires, holders of privilege in Tennessee are confronted over alleged wrongdoings under license under their respective boards and regulatory bodies in the other titles such as 62 and 63. They are not initially criminally prosecuted under a threat of jail when the state alleges a wrongdoing under license or presumption of license, as in this case.

In these privileges, the UAPA and its chapter on contested cases at T.C.A. § 4-5-301 et seq apply.

In a criminal trial under circuit court judge Kyle C. Atkins a jury convicted appellant Oct. 21, 2025, under the penalty provisions of T.C.A. § 55-50-504 for the charge of driving on suspended license, under T.C.A. § 55-5-104 for the charge of driving without valid registration and under T.C.A. § 55-9-603 for the charge of driving without a seat belt (TR p. 153).

Privileges in Tennessee such as physical therapy are supervised by their own regulatory boards. (Photo David Tulis)

The appellant demands the court overturn her conviction based on the fact that driving and operating a motor vehicle constitute a privilege. Tennessee in Tenn. Const. art. 2, sect. 28, provides government two modes of taxation: Ad valorem and privilege. The privilege is created under economic police powers to tax and regulate specified activities affecting the public interest. Alleging she is within the realm of a taxable and regulable human activity, subject to privilege, the state is under obligation to pursue its allegations of privilege wrongdoing evenhandedly and without prejudice among the myriad privileges.

It denies appellant rights to equal protection and due process under the U.S. 14th amendment and Tenn. Const. art. 11, sect. 8.

The three branches of government shift administrative duty of DOSHS onto county jails, local law enforcement departments and local courts to abuse the citizen as criminal within the “boundaries and limits of this state, over which the people have the right of exercising sovereignty,” Tenn. Const. art. 1, sect 31. The offloading of this burden, and is criminalization, is effectively an unfunded mandate by the state as against local taxing authorities and a misuse of criminal police and peacekeeping authority.

Factual background

The alleged criminal offenses took place on June 28, 2024, in Lexington.

That privilege administration is at the center of this case is without doubt. At one time appellant had been a licensee in privilege through DOSHS. Twice in opening statements, she states she had a driver license but that it expired in 2019 (TR page 57, 59).

Lexington police officer Devon Stevens testifies she is a licensee. Her suspension is premised on a DOSHS to create a driver license account ex nihilo apart from her application, payment of fees and submission of personal details such as address. DOSHS assigned her a driver license number and suspended it, the state thus obtaining standing accepted by the court.

The witness testifies that according to a state record, the Simpson driver license was suspended May 12, 2024 (TR page 76). State documents indicate “It would have been suspended” on the day of his seizing her, he testifies (TR page 77). He testifies that the plate displayed on the back of her automobile bumper was not one issued by the Department of Revenue registering the car with the state for privilege taxable activity (TR page 69).

Evidence indicates she uses the public right of way apart from privilege taxable activity subject to licensure, taxation or regulation. The jury ruled she was driving and operating a motor vehicle.

The officer testimony provides none of the legally required essential elements of what constitute “driving.” “I just know you were driving a car. I didn’t know what purpose it was for,” he says (TR p. 88).

Whether appellant is subject first to the department under title 55 in her private use of the road is a matter for that department to determine in a contested case. The commissioner knows what factual elements constitute privilege, even though the policeman is not trained to know. The policeman is an employee of a municipal government and does not appear versed in the particulars of the traffic law, testifying of legal conclusions without challenge.

Says the court: “So with regard to Count 1 of the indictment, I’ll sentence Ms. Simpson to six months at 75 percent with no fine. *** I’ll release her on time served, place her on probation supervised by Community Corrections. And you’ll need to go to Community Corrections and report today and let them know” (TR p. 156).

Appellant, age 76, was jailed for two months and four days prior to trial.

Statement of the case

This appeal seeks to overturn a criminal traffic conviction on grounds that the state acts with invidious class discrimination against a class of privilege holders by criminal prosecution of alleged privilege wrongdoing when for other privileges it pursues (1) public safety and (2) economic police power use for public health, safety and welfare in administrative contested cases.

In criminally prosecuting appellant, appellee fails to comply with the well-known judicially established doctrine of exhaustion of administrative remedies to reach appellant in the criminal court that tried her.

Because criminal liability for traffic-related offenses depends upon the privilege and is enforced through motor vehicle privilege law, due process requires that the licensee be afforded a meaningful opportunity to be heard within the administrative framework before the state initiates criminal proceedings predicated on the privilege status. In bypassing the administrative process and proceeding directly to criminal prosecution, the state deprives the appellant of procedural due process. It improperly collapses distinct statutory enforcement stages, rendering the conviction invalid.

Nine failures mark the state’s prosecution.

1. It fails to file complaint in the court of primary jurisdiction, that being in the Department of Safety under the commissioner of safety’s authority. T.C.A. § 4-3-2005.
2. It fails to make its case for relief in front of an administrative hearing officer named by the commissioner of safety, T.C.A. § 4-3-2005(a), or obtain an administrative law judge brought over from the secretary of state’s office to “review [an] initial [order]” from the department. T.C.A. § 4-3-2005(b).
3. State of Tennessee fails to require an “administrative judge or hearing officer to preside at the hearing, rule on questions of the admissibility of evidence, swear, witnesses, advise the agency members as to the law of the case, and ensure that the proceedings are carried out in accordance with this chapter, other applicable law, and the rules of the respective agency” T.C.A. § 4-5-301(2)(b).
4. The state fails to provide a party to “[participate] in a determination of probable cause or other equivalent preliminary determination” T.C.A. § 4-5-303(c).
5. The state fails to provide appellant a prehearing conference in which “the administrative judge or hearing officer may render an initial order” after considering argument, evidence or both on any question of law. T.C.A. § 4-5-306.
6. The state fails to offer appellant notice of hearing, T.C.A. § 4-5-307, fails to receive in the department pleadings, brief and motions, T.C.A. § 4-5-308 provide discovery in that venue, T.C.A. § 4-5–311, fails to hold a hearing in which the judge “shall afford to all parties, the opportunity to respond, present evidence, and argument, conduct cross-examination, and submit rebuttal evidence” T.C.A. § 4-5-312.
7. It fails to take a ruling unfavorable to the state to the chancery court of Davidson County, to which jurisdiction it is directed to file appeal for judicial review. T.C.A. § 4-5-322(b)(1)(A)(i).
8. It fails to enter any evidence that it prevails in the court case in chancery and obtains a civil judgment against accused.
9. It fails to enter any evidence that its accused — having lost first in administration, having lost secondarily in adjudication — continues in the alleged illegal driving activity and is justly due to be prosecuted criminally under the respective charging statutes’ misdemeanor penalty provisions.

State of Tennessee fails to follow the law to afford a citizen her right to due process in the matter of privilege. The appellant has right to a hearing in the court authorized under law to consider the driving and operating privilege accusation, having subject matter jurisdiction as originating and administering the privilege.

Statement of facts

Petitioner on the day of her arrest by Lexington, Tenn., police department employee Devon Stevens, is using the public right of way by right for enjoyment of Christian liberty under Tenn. Const. art. 1 § 3.

The arresting officer is the witness for the state, the initiating party in the arrest, with lawyering done by an assistant to the district attorney. The state moves in Henderson County General Sessions Court on the criminal docket.

Upon indictment, the state is represented by an assistant DA, Chad Wood, who argues before the jury that the accused was driving and operating a motor vehicle, this act constituting a privilege taxable activity subject to the motor vehicle laws, these being at title 65, chapter 15, carriers, and at title 55, motor and other vehicles.

The indictments dated March 31, 2025 (TR pp.1, 2) cite the same statutes and allege accused was “driving” on the public road in the privilege.

The motor and other vehicle code at title 55 is given as the privilege authority for State of Tennessee’s claims against accused.

Trial is Oct, 21, 2025, in Lexington in Henderson County Circuit Court. The road on which the state seized this member of the public was a street “open to the use of the public for purposes of vehicular travel,” as stated in the indictment for the license count (TR p. 2).

Summary of argument

The conviction respectfully must be overturned because the trial court did not have authority because the exercise of appellee’s illicit discrimination and prejudice in criminal court deprives appellant of her rights to be heard in the department, implicating subject matter jurisdiction. DOSHS is the court with original and subject matter jurisdiction for the state to be heard in its allegations of misuse of the privilege.

The state is obligated to treat privileges the same way, and every licensee as provided by law.

Driving a motor vehicle is a privilege taxable activity affecting the public interest. A licensee accused of wrongdoing or conduct unbecoming of the occupation has due process rights that vest in the state’s obligation to prosecute its grievance against appellant in the department established for that purpose.

The state reverses the order of exhausting its remedies. The pattern established under legislative intent, evidenced by the Uniform Administrative Procedures Act in chapter 5 of title 4, requires administrative hearing first, adjudication on appeal in court second, and criminal prosecution last, if at all or as necessary. The state launches the process criminally when misdemeanor crime allegations under the “beyond a reasonable doubt” legal standard come consequently and ultimately, not initially.

The conviction respectfully must be reversed as a prejudicial violation of due process.

Argument

I.

Privilege background

Driving and operating a motor vehicle constitute a taxable privilege, an occupation or calling regulated by the state through its Department of Safety. The driver license is an exclusive state privilege.

(4) Any person licensed as a driver may exercise the privilege granted upon all streets and highways in this state and shall not be required to obtain any other license to exercise the privilege by any county, municipal or local board, or body having authority to adopt local police regulations.

T.C.A. § 55-50-301

It is the most popular of all occupations in the state, the enjoyment of which is universal and the driver license and registration tag available to every applicant whose fee and application is not rejected or refused except for cause.

Registering an automobile for use as a motor vehicle is a second element of the motor vehicle privilege. “The registration and the fees provided for registration shall constitute a privilege tax upon the operation of motor vehicles.” § 55-4-101(a)(2).

The Department of Revenue is in charge of registration.

Privilege upon economic activity for gain affecting the public interest

The driver license is a privilege. “A license to operate an automobile is not property, but a mere privilege, the suspension of which does not deprive the licensee of his property without due process of law. The licenses or permits may not be revoked arbitrarily.” Id. Sullins at 932, quoting 5 Am.Jur. 593.

Privilege arises from economic activity that generates or is intended to generate private profit and gain. “The tax here in suit was not a tax levied upon complainant’s water but was a privilege tax levied upon the business of selling the water” Seven Springs Water Co. v. Kennedy, 299 S.W. 792, 393, (Tenn. 1927).

“It is certain the merchant is not taxed except by reason of his occupation, and in order to follow or pursue this occupation – one of profit – in which it may be generally assumed capital, skill, labor, and talent are the elements of success, and are called into play by its pursuit. This pursuit or occupation is taxed, not as property, but as an occupation. Another element of this occupation is, that its object and pursuit is directed to a profit to be made off the general public, the merchant having a relation, by reason of his occupation, to the whole community in which he may do business, by reason of which he reaps, or is assumed to reap, the larger profit by drawing upon or getting the benefit of the resources of those surrounding him. The same idea is involved in the case of the peddler, who may range over a whole county by virtue of his license. His is an occupation of like character, a peculiar use of his capital, varied only in some of its incidents” Phillips v. Lewis, Shannon, Vol. III, 240, 244, 1877.

The term privilege embraces any and all occupations that the Legislature may in its discretion choose to declare a privilege and tax as such. “It follows that the Legislature cannot tax a single act, per se, as a privilege, inasmuch as such act, in the nature of things, cannot, in and of itself, constitute a business, avocation, or pursuit. Hence it is a matter of importance ‘whether they make a business of it, or not,’” since if they do not, there is no privilege to be subjected to taxation” Trentham v. Moore, 111 Tenn. 346, 76 S.W. 904, 905 (1903).

“The Constitution of 1834 contained the same language, as to the taxation of ‘privileges,’ that is found in the Constitution of 1870. It is as follows: ‘But the Legislature shall have power to tax merchants, pedlars, and privileges, in such manner as they may, from time to time, direct.’ This language had been judicially interpreted in several cases, prior to the adoption of the Constitution of 1870. In the case of the Mayor and Aldermen of Columbia v. Guest, the Court said: ‘We have defined it in several cases, to be the exercise of an occupation, or business, which requires a license from some proper authority, designated by a general law, and not open to all, or any one, without such license[.]’” State v. Schlier, 50 Tenn. 281, 282, 283 (1871). Citing Schlier, the attorney general in 2006 succinctly opines, “A privilege tax is a tax on the privilege of carrying on a business or occupation for which a license or franchise is required. See Black’s Law Dictionary (8th ed.) (definition of ‘privilege tax).” Op gen. No. 06-103.

Driving and operating a motor vehicle constitute a privilege.

See Appendix No. 1, Shannon’s Annotated Constitution of Tennessee, art. 11, sect. 8, summary on privilege (incorporated by reference).

Trades and professions, healing arts under privilege

Most Tennessee privilege taxable activities appear in titles 62 and 63, all of which direct licensor to treat licensee peaceably and civilly under administrative law. See Appendix 2, Tennessee privilege law administration (incorporated by reference).

II.

Commissioner authority

The commissioner of safety issues the privilege. “[T]he department has oversight of the issuance, examination and renewal of all driver licenses provided for in this chapter” T.C.A. § 55-50-331. “The department shall, upon payment of the required fee, issue to every applicant qualifying therefor a driver license ***.” T.C.A. § 55-50-331(b)(1).

Administration includes licensing, suspension and revocation by means of a “contested case [hearing]” heard by the commissioner personally or a delegate.

(a) The commissioner of safety, in the commissioner’s discretion, is hereby authorized to appoint or designate hearing officers to conduct contested case hearings under the Uniform Administrative Procedures Act, compiled in chapter 5 of this title.

• (b) The commissioner shall delegate the commissioner’s authority to review initial orders in contested cases suspending or revoking driver licenses to the administrative procedures division of the office of the secretary of state for review by an administrative judge with such division. The commissioner may delegate the commissioner’s authority to review initial orders under this subsection (b) to one (1) or more additional persons. Review of initial orders shall be subject to further review and final disposition by the commissioner.

T.C.A. § 4-3-2005

The driver license is authorized by the “Uniform Classified and Commercial Driver License Act of 1988” T.C.A. § 55-50-101 et seq under the U.S. Department of Transportation administrator. “This chapter shall be administered by the department of safety” T.C.A. § 55-50-201. The act formerly was named the “Motor Vehicle Operator’s and Chauffeur’s License Act.”

Appellant in former time had a Class D driver license, allowing cargo up to 26,000 pounds. T.C.A. § 55-50-102(22)(D)

Given his authority involving the highest matters in licensing, that authority encompasses lesser ones (Majori continet in se minus. The greater includes the less. 19 Vin. Abr. 379. Bouvier’s). Reasonably, by implication, commissioner authority would include violations of rules of the road such as missing taillight or speeding and violations of administration, such as driving on suspended.

Contested cases are part of departmental administration. The commissioner is authorized to arrange for members of the public to be heard in a lawful venue of first instance. “The commissioner is authorized to establish administrative rules and regulations concerning the licensing of persons to operate motor vehicles, in this state, for the purpose of ensuring the safety and welfare of the traveling public” T.C.A. § 55-50-202. The safety commissioner’s plenary authority is the same as that granted to commissioners of other departments.

This power is upon an exclusive and discriminatory privilege affecting the public interest and economic in nature. It is economic police power upon the state’s most popular privilege. According to Statistia.com, 5.12 million people in Tennessee have obtained the motor vehicle driving privilege. That population’s size reasonably does not make his authority any less or materially different than that exercised by other commissioners.

The commissioner is an expert in the transportation field, a point supported by the courts in upholding the exhaustion of administrative remedies doctrine. “The department of safety has the power to exercise all duties, responsibilities and powers granted the department in title 65, chapter 15, to establish and promulgate rules and regulations necessary for the administration and enforcement of title 65, chapter 15” T.C.A. § 4-3-2012.

The commissioner of safety is “qualified as a disciplinarian and experienced in matters pertaining to safety” T.C.A. § 4-3-2002.

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.

T.C.A. § 4-7-104

Chapter 50 of title 55, “Uniform Classified and Commercial Driver License Act of 1988,” “shall be administered by the department of safety” T.C.A. § 55-50-201. The department administers the seatbelt law in the indictment. Registration of motor vehicles in chapter 4 is administered by the commissioner revenue. T.C.A. § 55-2-101.

Two departments, therefore, oversee administration of the three motor vehicle privilege elements in the indictments, two in Safety and one in Revenue.

The commissioner focuses on the motor carrier privilege in title 65, chapter 15. The duties of the department of safety, ones that are strictly upon privilege.

(a) The department of safety is vested with the power and authority, and it is its duty, to license, supervise and regulate every motor carrier in the state and promulgate rules and regulations pertaining thereto.
T.C.A. § 65-15-106 (emphasis added)

While this authority originates in regulation of motor carriers using the public right of way under a privilege for commerce, it applies to all motor vehicles on either side of the gross vehicle weight rating dividing line at 26,000 pounds (13 tons) between motor vehicle and commercial motor vehicle at T.C.A. § 55-50-102. Most private users travel in automobiles or vehicles less than 13 tons and are not in a commercial motor vehicle.

Excluded from the weight classifications in the definition of “commercial motor vehicle” are “vehicles designed and used primarily as recreational vehicles as defined in this section,” farm vehicles and “vehicles leased strictly and exclusively to transport, personal possessions or family members for non-business purposes.” (13)(B)(v). A driver is defined as “every person who drives or is an actual physical control of a motor vehicle upon a highway or who is exercising control over or steering a vehicle being towed by a motor vehicle.” T.C.A. § 55-50-102(20). The class D driver license used by non-commercial users, like the one appellant paid for and used until 2019, “shall be issued and valid for the operation of any vehicle. *** that does not meet the definition of a commercial motor vehicle in classes A, B, C, or M or vehicles that require a special endorsement ***.”

The word vehicle by itself “means every device in, upon, or by which any person or property is or may be transported or drawn upon a public highway[.]” T.C.A. § 55-50-102.(57).

Every licensee enjoying the privilege of commerce as privilege taxable activity is subject to the commissioner, whether operating a commercial business and logistics concern for private profit and gain or as a motor vehicle user on the road for private purposes. Anyone “who may be able to bring himself within the provisions of such [privilege] law” (quoting Tenn. Const. art 11, sect. 8) has duties – and rights – before the commissioner.

Tennessee law recognizes that licensing disputes are administrative in nature. (“[T]he grant or refusal of a license to use public highways in commerce is purely an administrative question” McMinnville Freight Line, Inc. v. Atkins, 514 S.W.2d 725, 726–27 (Tenn. 1974); “[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 Express Co. v. R.R. & Pub. Utils. Comm’n, 195 Tenn. 593, 616, 261 S.W.2d 233, 243 (1953) (emphasis added).

“This Department has the duty, right and privilege to grant licenses to those who drive within this State. Under the statutes which give them the right to grant the licenses, it also gives them the right for the revocation or the suspension of the license. The revocation of the grant to operate a motor vehicle upon the highways deprives the holder of no guaranteed civil right. Of course, the right to grant is a valuable one and yet it is no more or less than a right granted by the State and its use and enjoyment depends always, and it should, upon the compliance by the holder of said license with conditions prescribed in granting such a license” Goats v. State, 211 Tenn. 249, 252–53, 364 S.W.2d 889, 891 (1963) (emphasis added).

Safety authority is remedial, not criminal or punitive. “But, not every deprivation visited upon one who violates the state’s laws is to be considered ‘punishment’ for purposes of applying the double jeopardy clause. Thus, it is recognized in Helvering v. Mitchell, supra, that the double jeopardy clause did not prevent a second action that is ‘remedial in nature’ and not intended to have the effect of inflicting ‘punishment’ upon the individual in order to vindicate public justice” State v. Conley, 639 S.W.2d 435, 436 (Tenn. 1982).

EXPERTISE OF COMMISSIONER

The safety commissioner under current practice is denied opportunity to apply his expertise on the allegation of whether appellant was driving or operating or illegally operating a vehicle in a way affecting the public interest. “The Board should have been given the opportunity to apply its experience and expertise to the issue and to correct any errors it found in the administrators decision; a hearing before the Board would have resulted in a record that the court could review under the common law written social procedure and parties should not be allowed to deprive local zoning officials of the opportunity to perform the responsibilities assigned them by law.” State ex rel. Moore & Assocs., Inc. v. West, 246 S.W.3d 569, 580 (Tenn. Ct. App. 2005)

When the state relies on its administrators in executive branch departments, it puts problems closest to those agencies responsible for solving (or creating) them and saves on judicial department workload.

“The exhaustion doctrine serves to prevent premature interference with agency processes, so that the agency may (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. In addition, an agency has an interest in discouraging frequent and deliberate flouting of the administrative process” [Thomas v. State Bd. of Equalization, 940 S.W.2d 563, 566 (Tenn. 1997).]” Id. State ex rel. Moore at 578.

Apparent prosecution suggests that “traffic stops” and traffic law are badly understood

If confusion is not to blame for the affliction imposed on appellant, one might suppose that government officials are conspiring against the people of Tennessee as if members of a cartel who with obfuscation and deceit are thieving from the capital of their constitutionally guaranteed liberties.

The state’s courts are partly to blame for the confusion, with credit due to an abstruse sentence in Booher read by the local district attorney and others as giving them authority to abrogate free use by right apart from privilege.

Travel, in the constitutional sense, however, means more than locomotion; it means migration with the intent to settle and abide. Id. Thus, any American is free to travel from state to state, and to change his state of residence or employment whenever he desires, unrestricted by unreasonable government interference or regulation.

Id. Booher at 955

The court doesn’t say that travel doesn’t exist except for change of interstate domicile. Travel includes locomotion, it says, but also “migration with the intent to settle and abide.” It is easily misread as saying that travel does not exist except for that form. To read that sentence otherwise is to allow Booher and members of the judicial branch of government to destroy constitutionally guaranteed rights enabled by private locomotion.

Appellant emphasizes that she is not arguing the merits of her trial court case here. She brings up the confusion and harm caused by misreading of Booher to show that county officials, courts and juries often appear unqualified or unable to evaluate the distinctions between travel and traffic, which latter is administered by the Department of Safety in protection of the former.

The commissioner of safety’s authority over use of the public right of way extends to the limit reached by every privileged person using the roads for private profit and gain. But it goes no further. It does not implicate or abrogate private use or the exercise of rights of Tennesseans on the road in such exercise and enjoyment under U.S. Const. Amend. 1 and others. “A state may not impose a charge for the enjoyment of a right granted by the federal constitution” Murdock v. Com. of Pennsylvania, 319 U.S. 105, 113, 63 S. Ct. 870, 875, 87 L. Ed. 1292 (1943).

Appellant mentions these merits to suggest that the commissioner with his experience and expertise is the best party to evaluate allegations regarding the motor vehicle privilege.

Appellant insists that driving a motor vehicle is a privilege taxable activity subject to state authority from Tenn. Const. art. 2, sect. 28. Evidence for the activity includes (a) visible facts adduced by the state trooper or other officer (cargo, passengers) or (b) documentary facts (bill of lading, contracts, manifests) obtained in arresting movement of a motor vehicle operator.

Local police, sheriff’s deputies, prosecutors, and judges alike have lost sight of privilege and its constitutional origins regulating economic acts. Many appear poorly trained. They do not discern the difference between driving and operating a motor vehicle on one hand and ordinary use of the public road not in a privilege on the other, universally not obtaining evidence of commercial activity after blue-lighting a member of the traveling public.

These parties tend to conflate all use of automobiles and cars with driving and operating a motor vehicle. Probably 80 percent or more of the people in cars and trucks are private users only and not involved in the traffic, logistics or transportation industry.

Just like members of the public who comprise juries, local officials using criminal authority in what is supposed to be administration of a motor vehicle economic privilege lack expertise.

Experience and expertise lie with the commissioner of safety. He is charged with regulating motor carriers and motor vehicles and administering for-hire/commercial use of roads and highways. His regulation of privilege taxable activity in use of the public road is intended to benefit the general public and the traveler, to collect taxes and fees and enhance safety among commercial users and private users of the public right of way.

The commissioner of safety runs the first court that has authority over the allegations made by State of Tennessee in this case. This authority pre-empts that of the Henderson County criminal court.

“Ability to drive a motor vehicle on a public highway is not a fundamental right, but rather is revocable privilege that is granted upon compliance with statutory licensing procedures.” Id. Booher at 956. A privilege is a state-owned for-profit trade, calling or occupation affecting the public interest. Id. Phillips v. Lewis, As with any privilege, an accusation of wrongdoing against a privilege holder is heard by the issuer of the license; it’s true in each profession, whether plumbing, accounting, embalming, scrap metal recycling, chiropractic, podiatry or law.

III.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Appellant’s demand for reversal of the conviction is grounded on well known and long established law. The State of Tennessee, as the purported offended party and movant, ignores its statutory and constitutional duty to try its license- and privilege-related claims in a T.C.A. § 4-5-301 et seq contested case in the department under the commissioner.

Ignoring its duty to hold such hearing in the department, the state of Tennessee prejudicially denies appellant enjoyment of her liberties under Tenn. Const. art. 11, sect. 8, and her rights not be “deprived of [her] life, liberty or property, but by the judgment of [her] peers, or the law of the land” under Tenn. Const. Art. 1 , sect. 7 (emphasis added).

Where the legislature vests a department with primary responsibility and supplies a contested case route with judicial review, parties exhaust administrative remedies before courts exercise coercive power. “The doctrine of exhaustion of administrative remedies requires that where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act.” Tennessee Enamel Mfg. Co. v. Hake, 183 Tenn. 615, 620, 194 S.W.2d 468, 470 (1946).

“It is a settled rule in this State and is the general rule in other jurisdictions that ‘where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act’” Bracey v. Woods, 571 S.W.2d 828, 829 (Tenn. 1978).

“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[.]” Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838 (Tenn. 2008).

The exhaustion doctrine protects state executive branch department primacy where law vests administration in the department and provides review in chancery court.

The exhaustion of administrative remedies provides an affirmative defense if timely raised implicating subject matter jurisdiction. Instant petition brings up the matter after the trial court is finished with its work, and claims the same relief on grounds of prejudicial treatment and violation of the 14th Amendment. Douglas v. Strada, No. W2024-00753-COA-R3-CV, Dec. 16, 2024, indicates “[t]he doctrine is not applied mechanically. ‘There are important distinctions between exhaustion of administrative remedies being mandatory as a matter of law and circumstances where exhaustion is required by a court in the exercise of its discretion’” (citation omitted).

The motor vehicle law does not state EXPLICITLY the state must exhaust its administrative remedies. But since the general assembly provides an administrative course of action in disputes over privilege, exhaustion by the state in instant case would appear obligatory as among myriad Tennessee privileges, as administration precedes adjudication.

“We recognized the general rule that ‘where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act.’ Tennessee Enamel Mfg. Co. v. Hake, 183 Tenn. 615, 620, 194 S.W.2d 468, 470 (1946),citing 42 Am.Jur., Public Administrative § 197, at 580. (1942).” Reeves v. Olsen, 691 S.W.2d 527, 529 (1985)

A review of titles 62 and 63, indicates they do not specifically require exhaustion of administrative remedies. Yet allegations by the state against a practitioner or party in privilege are routinely administrative in practice because “an administrative remedy is provided by statute” and controversies are known generally not to be administered criminally by police officers or sheriff departments.

The moving party must exhaust its administrative remedies, even though the administrative hearing record may be limited and other demands, such as money, damages, saved for court action. Chattanooga–Hamilton County Hospital Authority v. AmeriChoice, 475 S.W.3d 746, 766 (2015)

Initiating criminal prosecution to adjudicate privilege-status questions short-circuits the statutory administrative channel, defeats the longstanding exhaustion rule and violates due process where law supplies an exclusive path for providing the state a remedy in pursuing its claim in a privilege controversy.

The state prosecutes appellant through title 55, the motor and other vehicle law, on presumption the accused (1) pursues privilege taxable activity subject to the title, and (2) is subject to the law.

“Well, when I initiate a traffic stop on a vehicle in Lexington I always ask for the driver’s license,” officer Stevens testifies, representing the state, “because you have to have a driver’s license to drive. And then the registration for the vehicle because vehicles in Tennessee are supposed to be registered to the State of Tennessee” (TR Vol. 1, transcript p. 84).

Under witness of its own claims about appellant’s alleged privilege taxable activity subject to DOSHS, accuser State of Tennessee binds itself under privilege law to bring the accused before the commissioner.

IV.

PREJUDICIAL USE OF CRIMINAL POLICE POWER

The state uses misdemeanor penalties attached to the provisions of title 55 to prosecute appellant criminally through local proxies or agents. But the penalty provisions in light of exhaustion and privilege attach ultimately at the end of a process, not initially.

State of Tennessee fails to regard the commissioner’s duty and authority to hear claims for which relief may be granted. The commissioner has subject matter jurisdiction to reach the merits — whether:

➤ Evidence shows appellant was driving and operating a motor vehicle, or;

➤ Whether in the absence of evidence of commerce appellant exercises her right to use the public right of way not under privilege, and her right to enjoy ingress-egress rights without abrogation in enjoyment of her constitutionally protected interests;

➤ Whether the department’s suspension of license claim had legal foundation, as appellant had allowed her license to expire, retiring from the occupation in privilege. The department under an unlawful protocol assigned her a driver license account, assigned her a driver license number, and made her a licensee apart from any payment of fee, application signature or giving of detail such as eye and hair color. It gave itself false grounds for criminal accusation upon a woman who had not of her free will made herself a person subject by application, signature and payment of fee, whom the department had defrauded by misusing her identifying information.

A.

Conviction is void for prejudicial treatment on exhaustion

Appellant is convicted in a court that is not the first court to which the state must go to obtain relief. Her mistreatment under criminal police power fails to be grounded on crimes.

Criminal police authority is aptly described at T.C.A. § 8-8-213 where the sheriff’s duty is to “suppress all affrays, riots, routs, unlawful assemblies, insurrections, or other breaches of the peace, detect and prevent crime, arrest any person lawfully, execute process of law, and patrol the roads of the county.” The warrantless arrest by officer statute T.C.A. § 40-7-103 gives these offenses as “public offenses” or “breach of the peace threatened.”

Crime is catalogued in title 39 and is prosecutable under allegation of mens rea. It has a victim. It rises from a sworn complaint. Under T.C.A. § 40-7–103, the warrantless arrest by officer statute,, arrest for crime must have a warrant pursuant to the Tennessee constitution at art. 1, sect. 7, if exigency, emergency or public offense are not part of the alleged breach.

Among traffic offenses, reckless driving at T.C.A. § 55-10-205 is a crime in use of an auto or motor vehicle in which mens re is an essential element. Reckless driving is a crime because it is a public offense under T.C.A. § 40-7-103. Under this law giving warrantless arrest powers to officers, the standard for on-the-spot arrest includes public offense or breach of the peace threatened. The jurisprudence on public offense indicates that administrative breaches are not public offenses as they are not actual breaches of the peace and do not affect the public and its members’ sense of safety and well-being.

This case lacks criminal offense elements and it alleges allegations instead that are of nature equitable breaches. Mens re and injured party do not figure in traffic privilege violation provisions because they are not conceived by the general assembly as being crimes at first instance.

The treatment of the public in the custom approved by the judicial department has blighted Tennesseans as far back as 1937 Pub.Acts, c. 90, § 1, precursor to Uniform Classified and Commercial Driver License Act of 1988. T.C.A. § 55-50-101.

At trial appellant did not bring up her right to be heard in the department. She reaches the argument of no subject matter jurisdiction through her analysis of the privilege structure in Tennessee. It shows every privilege except hers is treated administratively under UAPA.

The commissioner of safety oversees Tennessee’s pass system, a holdover from slave days in which criminal police powers were used to hunt runaways. U.S. Supreme Court chief justice Roger Taney upheld slavery and states’ rights on the grounds that if there were a federal right of free use of the public right of way (such as that attempted to be enjoyed by appellant) there would be black people in the streets without a pass.

Justice Taney says slavery and the pass system are for the black’s benefit, and for his own safety.

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law[.]

Dred Scott v. Sandford, 60 U.S. 393 (1857) 60 U.S. 393, 417

The pass system is confusingly applied by local governments to every Tennessean indiscriminately, its obstruction practices maintained by local criminal police power enforcement, and not a process pursuant to exhaustion under the commissioner.

Appellant was convicted on grounds she was “driving and operating a motor vehicle.”

“Vehicle” and “freight motor vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.”

T.C.A. § 55-1-103(e) (emphasis added)

“In order to determine whether the judgment should be set aside, we must determine whether the judgment is void. ‘A judgment is not void merely because it is erroneous.’ 11 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2862 (2d ed. 1995) ‘A judgment ‘is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.’ ” New York Life Ins. Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996).

“The concept of subject matter jurisdiction involves a court’s power to adjudicate a particular type of controversy. Courts derive their subject matter jurisdiction from the Constitution of Tennessee or from legislative act, and cannot exercise jurisdictional powers that have not been conferred directly on them expressly or by necessary implication. A court’s subject matter jurisdiction in a particular circumstance depends on the nature of the cause of action and the relief sought. It does not depend on the conduct or agreement of the parties, and thus the parties cannot confer subject matter jurisdiction on a trial or an appellate court by appearance, plea, consent, silence, or waiver. *** Judgments or orders entered by courts without subject matter jurisdiction are void *** . The lack of subject matter jurisdiction is so fundamental that it requires dismissal whenever it is raised and demonstrated. See Tenn.R.Civ.P. 12.08. Thus, when an appellate court determines that a trial court lacked subject matter jurisdiction, it must vacate the judgment and dismiss the case without reaching the merits of the appeal.” Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480–81 (Tenn. Ct. App. 1999) (emphasis added) (internal citations omitted).

Appellant believes she is under no duty to explain what the state must do with its unfulfilled duties. Local police and deputies have authority to refer allegations to the department of safety.

The record shows the state enters no evidence to indicate it exhausted its administrative remedies or that the allegations against appellant were sufficiently matured for criminal prosecution.

The proceedings appear null under Tenn. R.Civ. Pro. 60.02, void case.

B.

Plain error mismatch between state’s evidence, conviction

A second aspect of the trial court prejudice against defendant is convicting her on a charge plainly contradicted by the exhibits of record.

The driver license count says appellant “did unlawfully drive a motor vehicle *** while defendant driver’s license was canceled, suspended, or revoked in violation of § 55-50-504” (TR p. 2).

In the charge to the jury, the court reads, “the defendant, Brenda Simpson, is charged in the indictment as follows: count one: driving on canceled, suspended or revoked license.” (TR Vol. 3, exhibit No. 8).

The record shows the Department of Safety suspended appellant’s driver license. The form purporting to give the state record of the defendant says “Non-CDL status: suspended” (bold in original) (TR Vol. 3, Exhibit No. 7, driver record).

The court and the district attorney discuss the fact that appellant license had not been revoked.

THE COURT: All right. Thank you.

Oh, yeah, one other thing. Her license will be revoked. Is it for one year or six months?

MR. WOOD It’s — there’s no longer an automatic revoke – revocation, Judge, for one ticket. It’s a four-point conviction. There’s no longer any automatic suspension –

THE COURT: All right.

TR Vol. 2. Trial transcript p. 158

Because the defendant’s license had not actually been revoked, she could not have been convicted of driving on a revoked license.

“[T]he statute is clearly limited to the Department of Safety’s power to revoke, suspend, or cancel a license. Because the Defendant’s license was never actually revoked by the Department of Safety, he could not have been convicted of driving on a revoked license. Accordingly, we reverse the judgment of the trial court and dismiss the Defendant’s conviction for driving on a revoked license” State v. Brown, No. M2010-01945-CCA-R3CD, 2011 WL 3925497, at *5 (Tenn. Crim. App. Sept. 8, 2011).

This error is sufficient to overturn the conviction for driving on revoked.

V.

Arbitrary unequal treatment among similarly situated state privileges

The general assembly has great latitude in establishing classifications and classes. Appellant is not challenging the exercise of a power by the legislature forbidden in Tenn. Const. art. 11, sect. 8. She demands equal treatment against an extra-statutory governmentwide “pretense” forbidden in Tenn. Const. art. 11, sect. 16, that states:

The declaration of rights hereto prefixed is declared to be a part of the Constitution of this State, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that every thing in the bill of rights contained, is excepted out of the General powers of government, and shall forever remain inviolate. [emphasis added]

The privilege laws for plumbers, barbers, surgeons, and real estate agents have a reasonable basis in law. The motor vehicle privilege laws in view in the indictments have a reasonable basis.

But the practice of Henderson County, city Lexington and the state of Tennessee in criminally prosecuting appellant does not have a reasonable basis and appears arbitrary, capricious and violent when viewed in the context of the state’s economic police power operations via privilege. Criminal prosecution is anomalous.

In this case, no legislative enactment is challenged. Petitioner demands the law be made to operate fully and completely as intended by the drafters in the general assembly and the people’s creation of executive branch departments to regulate privilege.

What is in view is executive branch policy in which the state allows its Department of Safety to ignore its obligation to “administer” the privilege of driving and operating a motor vehicle.

Previous defendants have waived the issue presented in this appeal. They have let the state maintain the Civil War-era slavery police power and the later Jim Crow system of abusive police power use. Current practice forecloses the role state government should play to administer the motor vehicle law civilly and peaceably in the department in recognition of equal rights for citizens.

So negligent is the state in establishing the regulations to allow the commissioner of safety to regulate traffic, pursuant to his duty at T.C.A. § 4-5-2005, that in practice, it allows invidious class discrimination against appellant.

The laws administered by the state to regulate transportation in traffic appear constitutional and injure no one. But the practice of the state in prosecuting its allegations against appellant in Henderson County criminal court fails to “[protect] administrative authority” Id. Colonial.

The state creates privilege as a matter of public interest affecting the health, safety, welfare, and morals of women and men such as appellant. Tennessee law places privilege in an administrative department, describes licensing matters and controversies as administrative, supplies contested-case procedures, and treats other licensed privileges that way. Therefore this court should reject the criminal prosecution-first anomaly here.

Conclusion & relief requested

Appellant challenges longstanding practice of which she is victim. Criminalized “traffic stops” impose a most terrible burden upon the poor (such as appellant, in forma pauperis) and upon minorities (such as she). Excessive bail, fines and penalties are forbidden in Tenn. Const. art. 1, sect. 16. The state loses 0.958 cents a day in privilege fee not obtained from appellant in alleged use of a motor vehicle (disputed in the merits). Disproportionately and unjustly, the citizen is bound and jailed under alleged loss of about $1 every three months.

DOSHS is the jurisdiction of first resort for the state in seeking relief of grievance. It is also appellant’s safety or refuge from injustice and abuse. If officers, courts and juries are confused about distinctions in law within the merits of one case, petitioner trusts the commissioner is not.

Specialized in transportation, the department of safety is the best place to evaluate evidence to adduce commercial activity subject to DOSHS, according to the law. It is for DOSHS to determine equitable relationship or a meaningful connection between appellant and the state through voluntary actions in privilege. “Finally, although the commission of some single or occasional acts of the corporate agent in a state sufficient to impose an obligation or liability on the corporation has not been thought to confer upon the state authority to enforce it, *** other such acts, because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit.” Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 318, 66 S. Ct. 154, 159, 90 L. Ed. 95 (1945) (citation omitted).

Whether appellant has created a nexus to confer authority on DOSHS is a question within the merits of the case, not in view in this appeal. DOSHS’ charter is to regulate privilege and keep out poachers. Any state accusation against appellant for being an interloper in a law-protected privileged area is heard under T.C.A. § 4-3-2005, the commissioner’s authority for the contested case.

If appellant were a poacher on the privilege, she’d have the right to be heard in DOSHS as to particulars of her use of the public right of way, pre-empting a criminal trial in Henderson County circuit court.

Appellant asks the court to rule circuit proceedings void.

She respectfully demands:

1. The court overrule the conviction for driving on revoked when the exhibits show that her license was suspended;
2. The court find the state filed it claims against appellant in the wrong court, failing to give the Criminal court subject matter, jurisdiction;
3. The court rule that Henderson County criminal court had no discretion to act upon the state’s three allegations, that it prejudiced appellant by ignoring authority of the commissioner of safety in what the courts call a “purely administrative matter”;
4. The verdict and finding of guilt be found void and of no effect, a violation of law and appellant’s right to due process under the doctrine of exhaustion of administrative remedies and equal treatment under Tenn. Const. art. 11, sect. 8;
5. That the court find that the state’s prosecution of appellant in the criminal case, including putting her in jail for two months, are extraordinary, excessive and prejudicial under Tenn. Const. art. 11, sect. 16, because no other privilege holder in any other privilege in Tennessee is so treated;
6. The court provide a finding of law and fact to guide employees of counties, cities and DOSHS as to how to treat allegations of wrongdoing under the motor vehicle privilege and how they are to respect the constitutionally guaranteed rights of the people;
7. That in declaring the convictions void, the court provide any other relief it deems just and fair.

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