My take on how best to fight for the right to travel as in the Gregory Parker hearing is get the exact statutes and code plead them and stick to the wording exactly.
First requirement: There has to be a privilege.
By Levi Thurston / The Gnome of Middle Tennessee
The state’s theory is, in fact, that this case is a tax matter. So take it from their pleadings exactly what they have to establish.
Each essential element of the charge has to have a fact witness who can testify to the facts of each element of each term in the statute. The problem with these dumb lawyers is they read the statute backwards.
For example, in the Jon Luman hearing, DA attorney David Schmidt says, “The fact that you drive a car in Tennessee, you need a license. If you don’t like that [inaudible]. Because you were driving, you were involved in a commercial activity and you have to have a license in Tennessee.”
First, there has to be a privileged activity, that is “a for profit activity affecting a public interest.” The cop made his legal conclusion by using the statutory terms to some activity. Now there have to be facts in view to which he can testify that would rightly let a judge or jury see that he concludes rightly as to the law applying to the facts.
Again, a for-profit activity is the first olive out of the jar. If he cannot identify this specific activity, then “privilege” is not before the court. The officer said there was a privilege. So now, in sessions court, he has to testify to facts of the “for profit activity” he witnessed.
If he does not do this, he has admitted without realizing it he filed a false affidavit. Because once a affidavit is before the court, there has to be that witness to testify to that affidavit. When specific terms are used, there has to be sworn testimony to those facts of the terms used.
Once he admits he does not know about — or did not see — any for-profit activity, everything else falls away in the rest of the statute. The other terms all relate to the for-profit activity. They are descriptive of the various ways and means to carry on the for-profit activity.
Keep firmly in mind that the terms of the statute have to be read in harmony and in context. You only are a driver if you are engaged in a privilege.
You only have a motor vehicle if there is a privilege being exercised in the use of that automobile or conveyance.
Traffic stops are tax receipt cases
You have to have insurance and tax receipts only if you are exercising a privilege or special favor from State of Tennessee. You only have to register your car as a motor vehicle, and pay the tax on that benefit, only if you are going to engage in a privilege.
A license is a mere tax receipt to engage in the business designated. Business is a for-profit activity affecting a public interest for purposes of the transportation code at Tenn. Code Ann. § Title 55. There is the essential term “license” used in the statute and so the state witness — the officer — has to testify to the business activity he observed.
No business activity observed? Why, then, ask for the tax receipt for a business activity [the license and vehicle registration proof]?
A defendant such as Jon Luman, or you, perhaps, should stick to the terms of the statute in defending your cause before the judge. If the accused cannot get the court to allow very short exact questions to each element of the definition of these essential terms, the court is not allowing him to code plead. That, clearly, is a due process violation.
I wouldn’t even ask anything outside of the essential terms to be proven. Travel is not before the court as much as we would like to get on the record.
It’s a tax case and stick to the tax terms to be proven. The state cannot prove these terms.
The court cases on privileges in Tennessee include Phillips v. Lewis of 1870. See also Tenn. Code Ann. Title 5-8-102, on privileged activities (callings, occupations) and the taxable use of a car or truck as a privileged act.
“The essential elements of the definition of privilege is occupation and business, and not the ownership simply of property, or its possession or keeping it. The tax is on the occupation, business, pursuits, vocation, or calling, it being one in which a profit is supposed to be derived by its exercise from the general public, and not a tax on the property itself or the mere ownership of it.”….”The legislature cannot, under our constitution, declare the simple enjoyment, possession, or ownership of property of any kind a privilege, and tax it as such. It may declare the business, occupation, vocation, calling, pursuit, or transaction, by which the property is put to a peculiar use for a profit to be derived from the general public, a privilege and tax it as such, but it cannot tax the ownership itself as a privilege. The ownership of the property can only be taxed according to value.”) Phillips v. Lewis, 3 Shann. Cas. 231. Nashville, January Term 1877
