OPINION

Plaintiff seeks a judicial determination pursuant to courts and Judicial Proceedings Article Sec. 3-401 et. seq. that Defendant's enforcement of TR See. 21-1306 ("Motorcycle Helmet Law"), adopting the Code of Maryland Administrative Regulations at ii. 13.05.02 ("COMAR 11.13.05.02"), United States Department of Transportation, Federal Motor Vehicle Safety Standard 218, ("FMVSS 218") found at 49 CFR Sec.571.218 (1991) of the Code of Federal Regulations (the "Helmet Standard"):

(1) exceeds the statutory authority of the Administrator, Motor Vehicle Administration of the State of Maryland; and,

(2) that TR Sec. 21-1306 is unconstitutionally vague for lack of notice; and,

(3) that TR sec. 21-1306 is unconstitutionally vague in that it is beyond the ken of ordinary citizens; and,

(4) that the lack of a properly published list of approved protective headgear violates the Maryland Constitution the United States Constitution; and

(5) that the Administrator failed to comply with COMAR 11.13.05.02 by failing to notify the public of his intent to not approve any protective gear.

Plaintiff seeks a permanent injunction prohibiting Ronald A. Freeman, Administrator, Motor Vehicle Administration of the State of Maryland, Colonel David Mitchell, Superintendent, Maryland State Police, Sheriff Richard Voohaar, St. Mary's County Sheriff, their agents, employees and representatives from enforcing TR Sec. 21-1306 in any fashion.

Plaintiff testified at the evidentiary hearing that he has twenty items of headgear, one of which he wears while riding his motorcycle. Among the twenty are: a baseball cap, a Santa's hat, a welder's hat, bandannas and others; all of which would appear to be of soft material. In other words, none of these could be, by the stretch of any reasonable imagination "protective headgear". (See,even at this point the judge can't figure out that nothing in any standard anywhere has a determination for "hard" v. "soft", by appearance. Even the judge can't get out of the way of the vagueness, and he thinks he got it!)

In 1994, as Mr. Lewis States, in MUC&C No. 3888850, I convicted him of a violation of TR Sec. 21-1306. In that case, he was wearing nothing an his head. Mr. Lewis appealed his conviction to our circuit court (Case No. 95-202) and Judge Marvin Kaminetz granted his motion to dismiss the charge. Subsequently, Mr. Lewis has continued to be charged with the same violation in St. Mary's County. In Citation No. OP504038, Mr. Lewis was successful while Judge Kaminetz was sitting in the District Court. Still pending are MUC&C Nos. OP917023, OP504838, and OP916612. And taking judicial notice of its official court records, Mr. Lewis was not successful before Judge Lucke in the District Court while I was on vacation. He has appealed that citation to the circuit court also. In addition, this past week also brought the Plaintiff to the District Court on the same charge. That citation is postponed pending resolution of this case. Additionally, visiting Judge Floyd Parks convicted him in MUC & C No. Q372912 of the same offense, and Mr. Lewis has appealed to our circuit court in Criminal No. 96-0496. That case has been continued pending the outcome in this case.

It is clear to the Court that Mr. Lewis is on a crusade to have Maryland's helmet law declared unconstitutional. Defendant's Exhibit No. 1. On the other hand, his wearing no head covering whatsoever on some occasions and on other occasions wearing a soft covering such as a baseball cap, a welder's cap, a Santa's hat, or a bandanna while riding a motorcycle may prove an inadequate factual predicate to raise a constitutional question. See the opinion of Judge Leasure of the Howard County Circuit Court in 0ldenberg v Freeland, case No. 95-CA27-490, attached to Defendants' Trial Memorandum.

Given the fact that there are pending criminal charges in which the Plaintiff in this case has himself raised the same issue of the constitutionality of TR Sec. 21-1306, the Court could exercise its discretion to decline declaratory relief here. Grimm v County Commissioners of Washington County, 252 Md. 626 (1968). However, I believe that discretion should be exercised to prevent a multiplicity of criminal misdemeanor cases in the future.

Andrew Krajewski, Director of the Motorcycle Safety Program, MVA, testified that production Of a list of protective headgear could not be a substitute for a standard; and that the DOT labeling was clearer than any list. Furthermore, he said that the production of a list would necessarily be incomplete. The Administrator's position is that such an incomplete list would not serve to inform the public and that the publication of an incomplete list would not further the ultimate goal to maximize the use of safety equipment by motorcycle operators and riders in Maryland. Mr. Krajewski testified that a partial list of approved helmets was compiled in 1992 and remains available to the public upon request.

The federal authorities in contradistinction have published, in pamphlet form, a list of helmets by name and type which have satisfied the requirements of FMVSS 218. Plaintiff's Exhibit No. 5.

The court accepts as an established evidentiary fact that merely because a motorcycle helmet bears the symbol "DOT" does not mean that the helmet has actually passed the tests required by COMAR 11.13.05.02. plaintiff's Exhibit No. 5 states, in part:

By law, manufacturers must certify that their helmets meet or exceed (FWSS 218) by placing the symbol "DOT" on the back of each helmet. However, some helmets carry the DOT label even through they do not meet these requirements.

Compare Defendants, Exhibit 3.

The Court pointed out to the parties that there are fake DOT symbols that can be pasted on anything. That is why the pamphlet mentions that Badlands Bonnet Co., Novelty Helmets, Inc., the Helmet Shop/Loophole Headgear Emporium (emphasis added) are not certified as conforming to FMVSS 218.

I agree with Mr. Krajewski that production of a list is not a substitute for a standard. But we have the standard, i.e., FMVSS 218. I disagree that labeling is clearer than any list for the reasons cited above. I urge that the FY94 FMVSS 218 Test Program List, and as it might be amended from time to time, be adopted by the Administrator to satisfy the Legislature's directive in TR See. 21-1306(d)(3). I support this request because of the nonconstitutional, mundane, day-to-day practicality of handling a District court traffic docket which can consist of two hundred tickets or more per day for a single judge.

TR Sec. 21-1306 is a criminal misdemeanor. Thus, the State must prove each element of the criminal cause of action beyond a reasonable doubt. The State must prove:

(a) that the Defendant was operating or riding a motorcycle, and

(b) said Defendant was not at the time wearing protective headgear that meets the standard established by the Administrator.

If the statute stopped after the word, "protective headgear" no practical problem would be presented. The fact finder, using his understanding of the words, "protective headgear" and observing State's Exhibit A, to wit: whatever it was that the policeman saw Defendant wearing, could make a reasonably quick and satisfying conclusion as to the guilt or innocence of the Defendant. Bearing in mind the rules of statutory interpretation as set forth in Defendant's Supplementary Memorandum however, the Legislature commands the judiciary that it is ìprotective headgear that meats the standards established by the Administrator" and not "protective headgear" which cyclists are required to wear. I read the above to mean that the Legislature intended the Administrator, Motor vehicle Administration, not the courts, define "protective headgear" within the meaning of the statute. The statute provides:

(d) Approval of protective devices by Administrator.--- The Administrator:

(1) May approve or disapprove protective headgear and eye- protective devices required by this section;

(2) May adopt and enforce regulations establishing standards and specifications for the approval of protective headgear and eye-protective devices; and

(3) Shall publish lists of all protective devices that he approves, by name and type. (emphasis added)

If Mr. Freeland were to adopt and publish a list such as FY94 FMVSS 218 Test Program, (Plaintiff's Exhibit No. 5) in conformity with the procedural requirements of COMAR as directed by the Legislature, our inquiry would be concluded.

In my opinion, the only possible constitutional inquiry which might be raised by the facts of this case in as follows:

1. The Court believes that the other constitutional inquiries raised by Plaintiff are lacking in merit for the reasons set forth in Defendant's Trial Memorandum and Defendant's Supplemental Memorandum.

(1) TR Sec. 21-1306 requires the Administrator to define the meaning of "protective headgear" given that he has adopted the scientific measuring tests within FMVSS 218;

(2) FMVSS 218 as a scientific standard is beyond the ken of ordinary persons to either use or understand;

(3) The Legislature has directed the Administrator to publish lists of all protective headgear that he approves, by name and type; and

(4) Because he has failed to do so, the meaning of "protective headgear" is unconstitutionally vague.

In 1992 the Maryland Legislature made a policy decision that all persons who operate or ride a motorcycle wear "protective headgear" while doing so. What is "protective headgear" is to be determined by the Administrator, Motor Vehicle Administration. The Administrator then said "protective headgear" is all headgear that meets FMVSS 218. MVA published a pamphlet, Defendants' Exhibit 3, which stated, in pertinent part:

Helmets that meet the FMVSS No. 218 standard will have a permanent decal, containing the letters DOT (Department of Transportation).

The inference is that if the helmet has the label DOT, it meats the standard. That simply is not true. FMVSS 218 may be perfectly clear to a scientist. A scientist, for instance, Southwest Research Institute (See Plaintiff0s Exhibit 4) can determine whether a particular helmet will pass the tests set forth in FMVSS 218 (albeit at a cost of $1,200 each). Citizens of ordinary intelligence cannot know how to use FMVSS 218. People of ordinary intelligence cannot reasonably be expected to know what FMVSS 218 commands of them. Furthermore, it is likely that our Legislature recognized that very difficulty and therefore, in TR Sec. 21-1306(d)(3) directed the Administrator, using the expertise at his disposal, to publish a list of the protective headgear which had passed the scientific standards of FMVSS 218. In 1992 it was accepted that the DOT labeling requirement satisfied the directive of TR Sec. 21-1306(d)(3). By this time, however, the United States Department of Transportation has made it clear that DOT labeling does not ensure that all helmets bearing the symbol DOT meet the requirements of FMVSS 218.

The Court declares that the Administrator must publish lists of all protective headgear that he approves, by name and type. If the Administrator fails to so publish, the statute shall remain unenforceable.

The Court should stay, pending review by the Court of Special Appeals, issuance of any injunction prohibiting Defendants, their agents, employers and representatives from enforcing TR Sec. 21-1306. The research supplied by the parties demonstrates that there is a split of authority among the states which have tackled this problem. State v Benning, 161 Vt 472 (1994) and other cases cited in Defendants' Trial Memorandum and Defendants' Supplementary Memorandum supports Defendants' position. State v Maxwell, 74 Wash APP 688 (1994) and other cases cited in plaintiff's Memorandum of Law support Plaintiff's Position. Neither Mr. Lewis, the plaintiff, nor any of the other parties can be prejudiced by such a stay.

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