WHAT HAPPENED? . . . and what does it all mean?
First the helmet law was a non-correctable traffic infraction, then it was a correctable fix-it ticket, and now many believe that it's a non-correctable traffic infraction, again.
Well, as we pointed out in April of 1993, when it was first discovered by the Helmet Law Defense League (ABATE says they knew all along, they just kept it to themselves -- secret stuff); a violation of the helmet law should be cited by police as a correctable violation under the provisions of California Vehicle Code Section 40303.5. That is the law as enacted by the California Legislature.
The California Highway Patrol and many of the California (inferior) Courts have been exhibiting a strange sort of neurotic behavior over this fact.
Neurotic is a rather serious charge, so I'll explain:. A layman's explanation of the difference between a psychotic and a neurotic is that a psychotic is a person who believes that two plus two equals three while a neurotic is a person who knows that two plus two equals four, they just can't stand the idea. To make that point, let's explore just some of the neurotic behavior exhibited by the California Judicial Council on November 30, 1993.
Well pick up the discussion at "tab 8" -- the location of the recommendation by the Rules and Forms Committee, to the Judicial Council, to leave the correctable status of the helmet law alone, and seek clarification from the Legislature before taking any further action.
The Council Chairman is Malcolm Lucas, who is also the Chief Justice of the California Supreme Court.
CHIEF JUSTICE MALCOLM LUCAS (Chief Justice Lucas acts as the Chairman of the Judicial Council, but does not vote.): Let's go then to tab 8, proposed 1994 revision to the California Rules of Court, rule 850, the Uniform Bail Schedule. Rick Neal, I believe, is handling that.
RICK NEAL (Traffic Court Coordinator for the Administrative Office of the Courts): Chief, members of the council, again, it's that time of year for the bail schedule. This year is probably a little more confusing than most. We have four issues on the bail schedule. I'd like to take them one at a time. They are related to the recommendations under tab 8. This year we had the most comments that we've ever had for the bail schedule, that I know of. We had a hundred and fifty comments. Of course one-hundred-eight of those were from motorcyclists.
(At this point, Mr. Neal took up discussion of the first issue, then continued:)
The second issue is the issue that has become known as the helmet issue. But, quite frankly, it's a much broader issue than that. Prior to 1992, the bail schedule -- particularly the traffic infraction section -- is discretionary. It was a guide that the court's would use to try to get uniformity throughout the State, but it wasn't required. In 1992 legislation passed that made a dramatic change in the bail schedule regarding traffic infractions. It was at that point that courts were required to follow the Council's schedule in terms of traffic infractions. And at the same time the council and the bail schedule was told by the Legislature that we had to categorize traffic infractions into no more than four categories of offenses based on the severity of the offense. In doing that, one of the things we were looking at is how to create these categories. We looked at perhaps categorizing things by point count that is assigned to various violations. We also looked at whether or not an equipment violation was correctable.
Now the problem that we had was that up until 1992 we had not looked at that issue. So it was, for the most part, carried on from year to year on the bail schedule by custom and practice.
In 1992, because we knew the bail schedule was going to be mandated on the courts, we were looking for some kind of statutory authority to define what violations would be eligible for dismissal upon proof of correction. Our staff thought we had found that section in the code that identified those violations that were eligible for correction. Based on that, in the bail schedule that we adopted to be effective in 1993, we changed sixty-seven violations. Sixty-five of those we changed from not correctable to correctable. One of those happened to be motorcycle helmet violations. It wasn't until four or five months later it came to our attention that a lot of people were having problems with that decision. Primarily, the problem was being presented to us by the California Highway Patrol who's position was that under no circumstances should a helmet law violation be correctable. When we went out for the bail schedule this year, we contacted the CHP. We talked to their planning and research folks and we went through our entire bail schedule and realigned our correctable violations and we also asked our AOC legal section for an opinion on the correctability of a helmet violation. The result of that was that we went out for comment on the helmet violation being changed from correctable to not correctable. Subsequent comments, however, made us reconsider that. Comments from a number of legislators, from four legislators, three of which said that they supported the helmet law -- had in fact voted for it -- but at the time they voted for it they were under the impression that it would be a correctable offense. That, plus comments from a number of motorcycle associations and organizations, and a discussion with the ad hoc group and the forms and rules committee, we formed the recommendation that is before this group today -- that the motorcycle helmet law is to remain as a correctable violation eligible for dismissal upon proof of correction, and that the AOC should be directed to get clarification from the Legislature as to what their true intent was in this matter.
(Here, Mr. Neal addressed the third and fourth issue on the "tab 8" agenda, and the Judicial Council returned to the helmet issue as follows:)
CHIEF JUSTICE MALCOLM LUCAS: Now let's go (back) to item #2, to continue to list a violation of the California helmet law as eligible for dismissal upon proof of correction. Is there a motion to that effect? Let's get it on the floor, Steve, if we can, for discussion. Let's see if there is a motion (a motion was made) and a second? (The motion was seconded.) And now Steve.
JUDGE STEVEN J. HOWELL (Presiding Judge of the Butte County Municipal Court -- the author, incidentally, of the first written ruling by any court acknowledging that the helmet law is unconstitutionally vague; aka: "the Butte County Decision"): I would urge the Council not to adopt that recommendation. A correctable violation, of course, is a temporary equipment violation -- a stop light in fact goes out and you go get it fixed. A helmet doesn't fall into that same category. Most of you are aware that the AOC has been in a position of adopting that a category, that a motorcycle (helmet law) violation is a correctable violation, generated a great deal of ridicule over the past year, and a great deal of controversy. As pointed out in the memo here today on page two, item two, the last sentence of that paragraph: "The AOC legal unit reviewed the pertinent statutes and concluded that the legislative intent can't be ascertained." So, we have an opportunity to, I think, take the right approach. Obviously, we have a situation with the people that decided to go out riding around without a helmet as required by law, if they take the helmet into the local Highway Patrol and have the violation signed off. I don't think that's a reasonable interpretation.
CHIEF JUSTICE MALCOLM LUCAS: Have you made a specific recommendation as to what, we, the Council might do?
JUDGE STEVEN J. HOWELL: I would urge the Council not to approve the recommendation. Vote No.
CHIEF JUSTICE MALCOLM LUCAS: Alright. Yes, Kathy?
JUDGE KATHLEEN O'LEARY (Judge of the Superior Court in Orange County): I actually have a question about car-seat violations. Are they listed as correctable?
RICK NEAL: No Ma'am.
JUDGE KATHLEEN O'LEARY: To me, that's a real inconsistency. You're cited for not having a car-seat, but you can't bring the car-seat in and have the fine waved, but if your riding a motorcycle without a helmet, you can bring in . . . I think . . . someone's helmet, it may not be yours, and show a helmet. I think that was one of the problems with the car-seat. We saw the same car-seat a lot of times. But, if it's a tail light, it's a little harder to do. I would vote no.
(At this point there was some confusion over whether or not this subject "went out for comment." This particular discussion has no pertinent parts. And then:)
CHIEF JUSTICE MALCOLM LUCAS: Alright, Dan? ("Dan," Justice Daniel Kremer, is the Presiding Justice of the 4th Appellate Court, Division 1, from San Diego, California.)
JUSTICE DOUGLAS KREMER (Presiding Justice of Divison One of the Fourth Appellate Court): If there is, and there is, confusion on this issue, and ridicule directed any place, it should be at the Legislature and the legislation, not at the Judicial Council and the AOC's interpretation. One could admit, if you posit (impose) a helmet law, the absolute good sense of saying that the violation should not be correctable. How unfortunate we don't have the materials before us -- the statute that lays out in the vehicle code what are correctable. We looked at this in the Rules and Forms Committee when we came up with this recommendation, and it's really different from the AOC staff view.
It's really, on it's face, very clear that correctable violations are those in a certain division. This is within that division. There it is.
The confusion and the differing interpretations also evidence the fact you've got legislators, including the author, coming down on both sides of what in the world they meant, which is why we don't allow that type of evidence in determining what the legislature meant.
There is, I think, a clear, if misguided, legislative mandate that this thing be correctable. The interpretation on the other side stems from an oblique reference, not really terribly clear, to correctable violations involving matters which are mechanical. Yet, there are things, such as drivers licenses, clearly not mechanical, that are also clearly correctable.
When one parses through the legislation, it comes out correctable . . . good sense aside. That's why the second part of the recommendation that the AOC go back to the Legislature and say, "This is what you said, what did you mean?"
So I'd support the recommendation as a clear direction from the Legislature, at this point.
(At this point the recording began to experience blackouts, or blankouts if you will. In any case, after one pro and one con discussion, the recording continued as follows:)
CHIEF JUSTICE MALCOLM LUCAS: Alright. Any further discussion? We have a motion, then, before us . . . oh, I'm sorry Susan, go ahead.
SUSAN ILLSTON (a Burlingame attorney): Chief, I apologize. I feel very uncomfortable voting on this without the statute because Justice Kremer says is fairly clear that we cannot do what we're talking about doing. And I don't think it's appropriate that we do something contrary to what the statute says. On the other hand, others have apparently . . .
RICK NEAL: I have the statute right here if you want to take time to look at it right now.
SUSAN ILLSTON: I'm wondering if we could put this over until after lunch, or something, and give people the opportunity to review that, if it's appropriate.
CHIEF JUSTICE MALCOLM LUCAS: Can we have copies of the statute made up then? . . . and distributed to each member of the Council? We'll put this over for further consideration until after lunch. I think that's a good idea.
(LUNCH BREAK -- when the recording resumes, because there were some problems with this particular recording, it picks up mid-sentence as the Chairman of the Judicial Counsel, Chief Justice Malcolm Lucas, reintroduces the subject of the committee recommendation to leave the bail schedule as-is -- supporting the correctable status -- and set about, on an urgency basis, to get clarification of the intent from the Legislature.)
CHIEF JUSTICE MALCOLM LUCAS: . . . will be the recommendations having to do with the listing of a violation of the motorcycle helmet law as eligible for dismissal upon proof of correction. We have had distributed to us the underlying statutes. Susan, I would hope that you don't think I'm picking on you if I ask you at least for a preliminary view of the statutes . . . if you've had some time to look at them.
SUSAN ILLSTON: I sat at the left hand of the authority (Daniel Kremer, Presiding Justice of the 4th Appellate Court), here, so I did have a chance to look at it. I can't tell you how I get there, but, having read it, I am comfortable that we would be treating helmets consistent with seatbelts and child-seats if we said it's not correctable. I also think, however, the request for urgent legislation to clarify these extremely confusing statutes would still be in order. But, I don't think that we would be doing any violence to any language that's here if we were to find them not correctable.
CHIEF JUSTICE MALCOLM LUCAS: Yes, Dan.
JUSTICE DOUGLAS KREMER: We had a conference involving the real experts (we don't know who he meant) here in the break. The key to the whole thing is section 40303.5 which is circled, which says the following things are correctable . . . and then it says in "d" on the next page, any infraction involving equipment set forth in Division 12, and helmets are set forth in Division 12.
Now it's pointed that seat belts and child seats are also within section 12. On those two occasions, the Legislature has created a special one bite(?) rule allowing you to go to traffic school or some other method to avoid the fine the first time around, even though those are violations involving equipment.
Apparently the Highway Patrol's theory is there are two kinds of violations involving equipment, even though the statute doesn't say it. One involving the nature of equipment and its condition and the other involving the use of the equipment. If you've got a defective seatbelt, that's correctable. If you fail to use the seat belt, then it's not correctable.
COMMISSIONER MICHAEL S. GOODMAN (Commissioner in the San Diego Municipal Court): The Highway Patrol is relying on 40610(b)(2), the violation constitutes an immediate safety hazard. They are taking the view that that's what not wearing a seatbelt (he must have meant helmet) is. If they find that exception, then they do not have to check the correctable box.
JUSTICE DOUGLAS KREMER: That gives support to the position. That brings me to think it is a reasonable reading of the statute to say that this is a violation equipment which involves use not condition . . . which would justify us saying it is not correctable. And I also think that would be something more palatable to the Legislature if you go back and ask them for corrective action. We would say you've got a situation which involves use, not condition, of equipment. There is no exception like seatbelts and child seats. If the Legislature wants to create a one bite exception it is quite possible that they would do it to allow some space and some time to educate people and to implement. I think it's very unlikely that the Legislature would steal itself to move to noncorrectability if we said it was correctable. So . . .
CHIEF JUSTICE MALCOLM LUCAS: Let me discuss a problem that I may have created. We told, I believe it was yesterday, both the CHP and I'll call them the motorcycle interests, that we were not going to take a substantive determination today. One of the recommendations is that the Council may wish to obtain further clarification from the Legislature before changing the bail schedule with respect to the correctable status. I'm a little concerned that both sides may have been misled by that. They're not here . . . at least formal representatives are not here. (somebody whispered to him) Well apparently the CHP is not here. I'm not sure whether the motorcycle people who wanted to be heard are here or not.
RICK NEAL: Chief, there are two of them here. Two representatives from two of the organizations are here.
CHIEF JUSTICE MALCOLM LUCAS: Are there any other members of the motorcycle interests who wanted to be here that did not come because of the representation that we were not going to take a substantive position on this.
RICK NEAL: No Chief. I had a call from the California Motorcycle Association and when they found out that a representative from another association was going to be here, then they were perfectly happy staying home.
CHIEF JUSTICE MALCOLM LUCAS: Again, I just don't want to, in essence, go back on my word with either side in this case . . . or mislead either side.
JUSTICE DOUGLAS KREMER: May I ask a question? What is the nature of the bail schedule right now? . . . our instructions on it? . . . noncorrectable or correctable?
RICK NEAL: The schedule that is in effect in 1993 has motorcycle helmet violation as eligible for correction.
JUSTICE DOUGLAS KREMER: Are we mandated to adopt a new bail schedule?
RICK NEAL: Yes. January 1st is the effective date.
JUSTICE DOUGLAS KREMER: Then, inaction is something substantive, as is action . . . (must have been a joke, everybody laughed)
CHIEF JUSTICE MALCOLM LUCAS: Dan, I think I hate to interrupt you . . . are you finished?
JUSTICE DOUGLAS KREMER: I think it may well be, if we can do it, it would be appropriate to ask the Legislature for some correction. In doing that, I assume we would maintain the status-quo . . . for some period of time it would be correctable.
CHIEF JUSTICE MALCOLM LUCAS: You would follow, then, recommendation #2 as recommended by the staff? It that your position, Dan?
JUSTICE DOUGLAS KREMER: Yes it is.
CHIEF JUSTICE MALCOLM LUCAS: Any . . . yes Tony?
JUDGE ANTONY W. ISHII (Judge of the Parlier-Selma Justice Court in Selma, California): I thought I understood you to say a minute ago that having thought about it further, we could make it noncorrectable, based on a slightly different reading . . .
JUSTICE DOUGLAS KREMER: I think as a legal matter, there is good support for that. As I said originally, there is a good bit of sense to it. I did not know at that time that we had made any representations to interested parties that we wouldn't do anything substantive at this time.
JUDGE ANTONY W. ISHII: (Judge Ishii had a real bad microphone so I can only report the gist of his 50 words or less explanation of what he felt the Legislature had intended, and that correctable was not it.)
CHIEF JUSTICE MALCOLM LUCAS: Well at the present time, I believe we have a motion which conforms with recommendation #2 that has been seconded. Am I correct? And that is what we are debating. Is there further discussion on that particular . . . yes?
WILLIAM McCURINE, JR (a San Diego based attorney who untimately voted yes): Chief, only to say this . . . by virtue of the fact that that code section is lodged in Division 12, a law enforcement agency still has the option of indicating . . . as its writing the citation . . . whether or not that should be correctable, in their judgement, or not correctable. And if they are looking at section two, as Commissioner Goodman had drawn our attention to, that it presents an immediate danger, then they will indicate on the citation that it's not correctable, and in court we will honor that indication. By us doing nothing at this point, leaving it status-quo and looking to the Legislature to specifically exempt the code section from those provisions . . . we haven't done any harm either way.
JUDGE ANTONY W. ISHII: In reviewing the statutes, as Dan has indicated, if you look at 40303.5 it doesn't indicate . . . and when you follow along there are a number of categories are correctable that are marked . . . section "a" is registration, "b" is drivers licenses, and "c" is equipment . . . but any action by the officer is done by section 40610, which was handed out to us . . . under 40610(a)(1) it indicates . . . and the Legislature stated specifically registration, license, and then it uses for mechanicalŠ(garbled and gone . . . his microphone was really cutting out.)
CHIEF JUSTICE MALCOLM LUCAS: Alright, Pat?
JUSTICE PATRICIA BAMATTRE-MANOUKIAN (Justice Bamattre-Manoukian is an Associate Justice in the Sixth Appellate Court in San Jose, California): I understand the motion, Chief, it's that we would consider . . .
CHIEF JUSTICE MALCOLM LUCAS: It's that we would continue to consider a violation of the motorcycle helmet law as eligible for dismissal upon proof of correction, and seek clarifying legislation on an urgency basis.
JUSTICE PATRICIA BAMATTRE-MANOUKIAN: But, the sense that I hear is that we probably don't want to do that . . . we probably just want to say, right here and now, that it is a noncorrectable offense, or . . .
CHIEF JUSTICE MALCOLM LUCAS: I think we have to find a sense out by a vote. (laughter) Any further discussion . . . Alright, the present motion is, and I'll read it again, is to continue to list a violation of the motorcycle helmet law as eligible for dismissal upon proof of correction and seek clarifying legislation on an urgency basis . . . all in favor signify by raising your hands. I believe it is four votes (Lucas does not himself vote. Three of the four that voted in support of the recommendation of the staff are Supreme Court Justice Ronald George, Appellate Court Presiding Justice Daniel Kremer, and a San Diego attorney, William McCurine, Jr. The fourth will, for now, remain a mystery.) Those opposed . . . (not counted, but all the rest) . . . well, the motion fails.
JUSTICE DOUGLAS KREMER: Now you need a positive motion.
JUSTICE PATRICIA BAMATTRE-MANOUKIAN: I move, Chief, that we put this particular offense on the list of noncorrectable offenses in category 2.
CHIEF JUSTICE MALCOLM LUCAS: I think under the circumstances it may be appropriate to ask one of the representatives if they wish to speak, briefly, to come forward and speak. Do you wish to be heard, Sir?
RICK NEAL: Chief, the two organizations, they both need to be represented. They don't necessarily share the exact same views. If we can maybe split the time between both of them.
CHIEF JUSTICE MALCOLM LUCAS: Can you tell us your thoughts in about two minutes, Sir?
PAUL LAX (State Director, ABATE of California): I certainly can. Chief Justice, members of the Council, my name is Paul Lax. I represent a group of motorcyclists in California. We are concerned about this issue for a couple of reasons.
The primary one I think is because, as the Justices pointed out, the statutes fairly clearly bring you through a series of regulations. You have a statute that makes certain regulations eligible for correction. You have a statute in 40303.5 that says what you can and cannot put in there, and it includes Division 12. And, if you'll look at the helmet law, it's clearly in Division 12.
There has been some discussion about the fact that both the child restraint law and seatbelt law, also in Division 12, are treated differently. I point out that rules of statutory construction would tell you the Legislature in acting to treat that differently, in singling those things out, and including in the section different treatment for those . . . exempting them from correctability . . . has demonstrated its ability to do that. They know how to codify the law. In fact, you have letters in the file from three Legislators who voted on this law saying it was their intent that it be correctable.
So you've got a section in 40610 that says that the officer shall . . . uses the mandatory language . . . give the offender the opportunity to correct. You've got 40303.5 that says when that's correctable, and that includes Division 12. And finally, you've got an argument that's included in the materials distributed today as part of the recommendation about maybe it's not equipment. There is a section in the United States Code, which preempts the State law on the question of motorcycle equipment, that's 15 USC 1391 Sub(section) 4, which includes in the definition of equipment articles of apparel or clothing, distributed or sold for the purpose of protection . . . that includes the helmet.
What you've got here, is a request -- primarily by the Executive Branch of government in the form of the Highway Patrol -- to have this body amend the legislation. They are asking this body to say . . . we want it done a little differently, even though the statutes . . . the vehicle code . . . as has been pointed out clearly . . . has a chain of statutes that lead you from the classification as correctable in Division 12, the circumstances under which the officer can designate another category of one of three exceptions . . . which, of course, if those exist . . . obviously it would not be qualified for correction. We think its important that you focus . . . and I understand the motion has already been made, a second motion has been made to make it noncorrectable . . . but, I'd ask you to focus for a moment on the fact that you're basically amending the statute. The statutory language is very clear.
The Legislature's ability to codify laws differently and to point out or establish different criteria for treating them is clearly demonstrated. In this instance, this Council is being asked by the Highway Patrol to amend the law. I think although the recommendation has been defeated, I think maybe the best thing to do at this point would be not to adopt the second motion either. Now what you've done then, of course, is having defeated both motions, there is no recommendation. In the event of no recommendation, maybe the schedule doesn't change.
Thank you very much for the opportunity, and I hope that this Council will see fit to leave the schedule as it is presently put together, and allow the statutes to be clarified by the Legislature.
(A VOICE FROM THE COUNCIL): Could you just identify the group that you said you represented.
PAUL LAX: Yes, ABATE of California. It's a motorcycle group, A-B-A-T-E, and we have about roughly ten or eleven thousand dues paying members in California, and we are very interested in the law . . . were interested in anything that effects motorcycling. Thank you.
CHIEF JUSTICE MALCOLM LUCAS: Thank you Mr. Lax . . . yes Sir.
QUIGLEY: Mr. Chief Justice, members of the Committee . . . I'll bet you're all wondering if I sound like I look . . . well I do. (laugh -- the only one I got)
My name is Richard Quigley, Senior Deputy Director of the Helmet Law Defense League, and I came up here today because we have been real concerned since this helmet law came in about how it got there.
With regard to this particular matter . . . I think what we are dealing with here is that the California Highway Patrol did not like our old helmet law.
This thing came in in 1992 and they were writing tickets at a rate of about two hundred tickets a month. The first five months, a thousand tickets . . . no big deal. It wasn't exactly the protest everybody anticipated.
However, on June 1st (1992) the California Highway Patrol made their first amendment to the helmet law in the form of what's called CHP Bulletin #34, where they outlawed an entire style of helmet . . . without jurisdiction, authority, or even good sense. That has since resulted, in the last 16 months, in over 30,000 citations . . . and I'm talking about citations to people that have done everything they know how to do to comply with this ridiculous law.
Now, when this thing happened in the first part of 1993 where the bail schedule was adjusted to reflect the correctable nature of this law as it was written . . . in Division 12 . . . everything supports it except the California Highway Patrol. Once again they amended the law.
Before the clarification from the Judicial Council had hit the streets and hit the courts, CHP Bulletin #42 came out and said that you people don't know what the Hell you're talking about. And everybody in the courts . . . half went one way and half went the other way . . . what we ended up with is a mess.
Now, I'm hoping that when we walk out of here today that the mess will be somewhat diminished by what you do . . . what you are capable of doing . . . when you understand all the conditions that surround this.
The fact is that the Legislature knew about Division 12 when they put it in Division 12 . . . they could have put it anywhere they wanted . . . it's in Division 12.
The fact is it is not like a car seat. We are not dealing with something that's fairly concrete like a seat belt . . . by the way . . . with reference to Bulletin #34 and 30,000 tickets for alleged illegal helmets . . . and there is no such thing . . . I'd like to point out that that was on the basis of less than 10,000 recalled helmets. There have been recalled over five million automobile for seatbelt failures . . . there are people killed every week, every month, in this state by seatbelt failures . . . and to my knowledge there has not been one consumer to date, one user to date, cited for wearing an illegal seatbelt.
There is some bigotry underpinning this thing that is of great concern to us . . .
CHIEF JUSTICE MALCOLM LUCAS: Alright Mr. Quigley, I think your time is up.
QUIGLEY: Chief Justice, I thank you very much . . . folks, I hope we can get out of here in clean shape today.
Well, we didn't.
The Council voted, by the same count as earlier, to "rule" that violations of the helmet law are not to be considered eligible for correction, as intended by the Legislature and as provided by law. The fact that the Council's ruling still stands as law (1-23-96) is a testiment to the degree and depth to which the "system" in California is broken. Agency after agency continues, daily, to exceed their jurisdiction, violate their charters, and otherwise just bull their way to the money -- the object of all the abuse. Quig