For years, the people working within the bureaucracy have been trained to refer to driving a motor vehicle as a "privilege." Through sheer repetition that baseless contention is now so deeply ingrained in the jargon of the establishment that most people, in and out of the government, just accept it as fact. However, for the record, the right of the public to use the roadways and highways throughout the United States, including California, is an inalienable right; a right so basic to our Liberty that even the mere act of suggesting to treat it otherwise (particularly by individuals sworn to protect our rights under the constitution) constitutes an act of insurrection against both the California and U.S. Constitutions. Yet, for the second time in two years, such acts have occurred . . . virtually unchallenged.
The first was filed on June 30, 1993; the decision of Buhl v. Hannigan where the Fourth Appellate Court wrote: "The court found . . . there is no fundamental right to operate a motor vehicle; rather, driving is a privilege, . . ."
The court "found"? Found where? No, that does not mean that they uncovered some previous ruling by another court, from another case, as is the foundation for most findings of a court. What they were saying is that they established by their finding that driving is not a right, but a privilege. Such language as a part of an Appellate Court decision did not exist prior to Buhl. In the absence of a challenge to such a preposterous claim, it is now considered the state of the law in California!
The second occurrence appeared in AB-3148, a bill passed in the 1994 legislative session, touted as the"Safe Streets Act of 1994" which reads at Section 11: "The Legislature finds and declares . . . the following: (a) Driving a motor vehicle on the public streets and highways is a privilege, not a right."
If, as the Buhl court established, and as AB-3148 now declares, driving a motor vehicle on the public streets and highways is to be treated as a privilege, not a right; then it is important to understand the difference between the two -- "privilege" and "right" -- to better understand the extent of the loss we may suffer.
Black's Law Dictionary (Black's) defines "privilege" as: "A particular and peculiar benefit or advantage enjoyed by a person, company, or class beyond the common advantages of other citizens. . . . A right, power, franchise, or immunity held by a person or class, against or beyond the course of the law."
In other words, when you are granted a "privilege," you are granted something which would otherwise be unlawful -- "beyond the course of the law." Article I, Section 7(b) of the California Constitution, in describing the nature of such bene-fits, states: "Privileges . . . granted by the Legislature may be altered or revoked."
Against that understanding of "privilege," Black's says: "'Rights' are defined generally as 'powers of free action.'"
The California Constitution, Article I, Section 1, protects these powers of free action thus: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursing and obtaining safety, happiness, and privacy." (emphasis added)
When we went back to Black's and looked up "inalienable," and discovered: "Not subject to alienation; the characteristic of those things which cannot be bought or sold or transferred from one person to another, such as rivers and public highways, and certain personal rights; e. g., liberty. (emphasis added)
Well! It would appear that there is a gigantic difference between a right and a privilege. While a privilege can be granted or revoked at the whim of the Legislature, it appears that a right is guaranteed against being limited in any way (save through the process required by the 5th and 14th Amendments). What we have lost is substantial; particularly since our right to the "public highways" (out of the thousands of examples available) is one of two examples used in Black's to define basic "inalienable" rights.
We decided to look up "public highway" and found, under "highway": "A free and public roadway, or street; one which every person has the right (there's that word) to use. . . . Its prime essentials are the right (again that word) of common enjoyment on the one hand and the duty of public maintenance (gasoline tax? . . . no problem) on the other." (emphasis and comments added)
Since researching law is a matter of moving from one understanding to the next, we looked up "public roadway" and found: "A highway; a road or way established and adopted by the proper authorities for the use of the general public, and over which every person has a right (there it is again!) to pass and to use it for all purposes of travel or transportation to which it is adapted and devoted." (emphasis and comments added)
WOW!! On the one hand, the bureaucrats are trying to convince us that driving a motor vehicle is a privilege, not a right; while on the other, according to these legal definitions, reported from a myriad of court decisions, the use of the roadways for all purposes of travel or transportation to which they are adapted is among our most inalienable rights!
In researching the court cases behind Black's definitions, we found: In the matter of Kent v. Dulles, the United States Supreme Court ruled: "The right to travel is a part of the 'liberty' of which a citizen cannot be deprived without due process of law under the Fifth Amendment. . . . In Anglo -Saxon law that right was emerging at least as early as the Magna Carta. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. . . . It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values." (emphasis added);
". . . the right to travel is an unconditional personal right, a right whose exercise may not be conditioned." Shapiro v. Thompson (emphasis by the United States Supreme Court.);
"The streets of a city belong to the peopleäand the use thereof is an 'inalienable right' of every citizen . . ." Escobedo v. State Dept. of Motor Vehicles (1950);
"The right to drive an automobile is integrally bound up in the right to travel guaranteed by the Supreme Court's interpretation of the U.S. Constitution." U.S. v. Guest (1966), Miller v. Depuy (1969);
"The right of the citizen to travel upon the public highway and transport his property thereon, by horse-drawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but a common right which he has under the right to life, liberty and the pursuit of happiness." (11 Am. Jur. [1st], Const. Law, Sec. 329 at page 1135);
"Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the 'law of the road . . .'." Swift v. Topeka (1890);
"The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or automobile, is not a mere privilege which a city may prohibit or permit at will, but a common right under the pursuit of happiness." Thompson v. Smith
"[A] Motor vehicle, as a means of getting about from place to place, whether in pursuit of business or pleasure, is a 'liberty' under the 14th Amendment . . .". Wall v King (1953)
In light of all these court decisions on the subject, isn't about time the Buhl court was made to answer for their finding? In addition, since any attempt of a legislature to convert a right of the People into a mere privilege has long been prohibited by the Constitution, shouldn't someone be made to explain AB-3148?
"Where rights secured by the constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda v. Arizona (1966); Hurtado v. California (1884); Boyd v. U.S. (1866); Miller v. U.S. (1956)
"Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure . . .". Chicago Motor Coach v. Chicago
"It cannot be doubted; that the Legislature can name any privilege a taxable privilege and tax it . . . but the legislature cannot name something a privilege unless it is first a privilege." Jack Cole Co. v Macfarland (1960)
"Personal liberty, or the right to the enjoyment of life and liberty, is one of the fundamental and natural rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, nor dependent on the U.S. Constitution, and may not be submitted to a vote, and may not depend upon the out-come of an election. It is one of the most sacred and valuable rights, . . . and is regarded as inalienable." (16 CJS, Const. Law, Sec. 202 [pg. 987])
To our knowledge, California is the only state to ignore these decisions and attempt to establish, by either court decision or statute (much less by both) that the free and independent use of the highways is a "privilege, not a right."
If Californians no longer have a property interest in the streets and highways, when did we loose it, and how? I believe that the answer to that question will rock the State of California; and put an end to their Traffic Court tax scam, once and for all!
Therefore, as soon as possible, a lawsuit will be filed in Federal Court as a means to re-establish that our right to use our streets and highways is a protected fundamental right which cannot be relegated to the status of privilege by the Legislature. Quig
STATE OF WASHINGTON NOW HELMET LAW FREE!
How many times do the courts have to rule a law unconstitutional before the police will stop enforcing it? That is a question still to be answered in Washington State.
On June 28, 1994, the Court of Appeals of the State of Washington ruled Washington's helmet law void for vagueness affirming the earlier ruling of the Appellate Division of the Superior Court in the matter of the State of Washington vs. Maxwell and Sanasky.
The court wrote: "The trial court did not err in finding the statute and regulation failed to provide the fair notice and ascertainable standards required by the due process clause."
Jack Maxwell and Josh Sanasky had been cited by the Washington State Police for wearing so-called illegal helmets. Following their convictions at trial, Edwin F. (Ed) Alden of Kennewick, Washington, appealed to the Appellate Department of the Superior Court arguing that the statute was too complex to be understood by persons of ordinary intelligence, and therefor the convictions should be overturned. The Superior Court agreed.
The district attorney appealed that decision to the Washington State Court of Appeals, Division III, and lost again.
Alden (the Washington State Director for the Helmet Law Defense League) had argued from the beginning that since Washington's helmet law required, through a series of instructions, that motorcyclists wear helmets meeting the requirements of Federal Motor Vehicle Safety Standard (FMVSS) 218, that riders were ultimately being held responsible for understanding what was required by this FMVSS 218.
Alden argued that this federal regulation was designed to be understood by manufacturers and their engineers and absolutely beyond the ability of the average person to understand. The courts agreed with Alden and wrote the following findings to support their decision:
"In the summer of 1991, Messrs. Maxwell and Sanaski were separately issued notices of infraction for violating RCW 46.37.530(1)(c). The District Court found both men had committed the infraction and they appealed to the Superior Court which reversed the judgments. The Superior Court determined the law is unconstitutionally burdensome and confusing."A statute violates the due process clause of the Fourteenth Amendment if it fails to afford citizens fair warning of proscribed conduct. The State contends the Superior Court was incorrect in its determination RCW 46.37.530(1)(c) is so unclear it fails to provide the requisite fair warning.
"The notices of infraction issued to Messrs. Maxwell and Sanaski described the offense as 'failure to wear approved helmet . . ."; it is undisputed each was wearing a helmet and the substance of the charge was that the helmet failed to comply with WAC 204-10-040 adopting the federal standards adopted under the statute.'
"A statute is unconstitutional if it fails to provide fair notice; if the standards to which a citizen must conform are so inaccessible that an average person could not be expected to discover them by reasonable research efforts, then the statute does not provide the requisite notice.
"The administrative regulation for protective helmets in Washington stated in its entirety: (1) Federal Motor Vehicle Safety Standard 218 is hereby adopted by reference as the standard for motorcycle helmets. (Former WAC 204-10-040.)
"In order to comply with the statute and the state regulations, an ordinary citizen would have to know where to find the Federal Motor Vehicle Safety Standards, or Standard 218. Counsel and the court found it because we are aware of the Code of Federal Regulation; the index therein cites us to chapter 49, section 571.218. The regulation itself consists of sections 1 through 7.3.4 and covers 16 pages. Within those sections are topics such as scope--purpose-- application--definitions--requirements--impact attenuation--penetration--retention system-- configuration--projections--labeling--helmet positioning--index--selection of appropriate headform--reference marking--helmet positioning--conditioning--impact attenuation test-- penetration test--and retention system test. Also included are 7 1/2 pages of diagrams and 4 pages of charts.
"The regulation fails to inform the average citizen of the location or legal citation of the federal standard it adopts. We have not been advised how a citizen of common intelligence should discover this information RCW 46.37.530, as implemented through WAC 204-10-040, fails to provide citizens with the fair notice required for due process.
"A statute is unconstitutional if it fails to define the offense so that ordinary people can understand what it proscribes. The standard is whether persons of common intelligence and understanding haveäascertainable standards by which to guide their conduct.
"The federal regulation has numerous sections relating to the qualities and tests to be suppled by the manufacturer. Ordinary citizens would not be able to tell which protective helmet met those requirements, even if they could find the regulation. In adopting the entire regulation, the state patrol has made it impossible for ordinary citizens to understand what is required to comply with the Washington statute.
"The trial court did not err in finding the statute and regulation failed to provide the fair notice and ascertainable standards required by the due process clause."
That should have been the end of it, but no!
First, Washington State Patrol Chief Roger Bruett issued an all-points bulletin asking all police agencies to keep ticketing riders without helmets.
Bruett claimed that the Appellate Court decision did not apply to Western Washington. Although this claim was not only untrue, but ridiculous, it had the desired effect. Most Washington riders continued to comply with the helmet law in spite of the decision of the court.
Then the Washington Attorney General stepped in and moved back into the Appellate Court for reconsideration of their decision. Washington State Attorney General Christine Gregoire's arguments against the decision were summed up on a newspaper interview in which she is reported as saying, ". . . some laws are just not meant to be understood." This petition was promptly denied.
Next, the Washington State Police attempted to adopt emergency regulations which they believed would adjust the language objected to by the court, and save the law. In spite of the decision, the Washington State Police just kept issuing citations.
In some areas of Washington the traffic courts immediately reacted by finding riders not guilty. Some of these courts even went so far as to warn the police to either stop writing such tickets or be prepared to go to jail for contempt of court.
In some other traffic courts, the decisions were "guilty."
Ken and Kathleen Hathaway of Kennewick, Washington, were cited on July 31, 1994, for an alleged violation of the helmet law which had been declared unconstitutional over one month earlier. They were found guilty by the same court which had originally convicted Maxwell and Sanasky.
Alden took on their case, pro bono, and returned to the Superior Appellate Court which had made the original finding that the law was unconstitutional.
By the time the appeal was heard on January 18, 1995, five other defendants had been joined with the Hathaways.
The Attorney General and the State Police appeared and argued that since they had made modifications to the regulations which existed at the time of the original decision of the court, that they were within their rights to continue to issue citations.
The Superior Appellate Court had little patience with this argument. The court explained, again, -- this time in terms bordering on charging the State Patrol and Attorney General with contempt of court -- that Washington's helmet law had been found to be unconstitutional and that until such time as the Washington Legislature enacts new, and different, legislation, the police were to cease harassing motorcyclists over the issue.
Apparently the court's instructions were not only blunt, but clear. In writing the Order of Dismissal, referring to the Maxwell/Sanasky finding, Presiding Superior Court Judge Duane Tabor wrote:
"The holding in these cases was that RCW 46.37.537 (the Washington helmet law) was unconstitutionally vague in that the State Patrol has adopted in its entirety 49 CFR Section 571.218 (FMVSS 218)."The Washington State Patrol pursuant to its rule-making authority on July 8, 1994 (following the Appellate Court decision), implemented an emergency rule which again adopted by reference the Federal Motor Vehicle Standard 218. Sometime subsequent to July 8, 1994, the State Patrol Adopted the emergency rule as the permanent rule.
"The adoption of the current WAS 204-10-040 does not meet the fatal defects found by the Maxwell, Sanaski and Fisher court. In adopting the entire regulation, the State Patrol has made it impossible for the ordinary citizen to understand what is required to comply with the Washington statute. Having previously determined the adoption of Standard 218 renders the helmet requirement of RCW 46.37.530(1)(c) unconstitutionally vague, now, therefore, IT IS HEREBY ORDERED, AND AJUDGED AND DECREED that the finding that the infractions was committed is hereby set aside and the matter is dismissed with costs."
Meanwhile, in Western Washington; the Washington State Patrol are virtually undaunted by the findings of the Appellate Court in Maxwell/Sanasky. Their claim that an Appellate Court decision in Eastern Washington does not impact them in Western Washington is unheard of in the history of law. Such a finding of an Appellate Court is in Washington, as in every other state, is binding on the entire state. Period.
While riders continue to suffer ongoing harassment from the State Patrol in Western Washington, the established motorcyclists rights organizations insist that the only relief will ultimately come from a "repeal bill" which is currently before the Washington Legislature. The ramifications of this myopic thinking is that if riders do not adjust their approach (their use of their resources), and adjust it soon, the Washington Legislature may very well use that opportunity to reinstate the language of their current helmet law such that the court challenges will actually have to start all over again.
Perhaps if A.I.M. Attorney Marty Fox had not initially taken, or been given, credit for winning the decision which found the Washington helmet law unconstitutional; perhaps, just perhaps, the energies and resources of the bikers in Washington would have been directed toward moving into Federal Court to obtain a Court Order to stop the Washington State Patrol from issuing citations on the authority of a statute which has been made void by the Appellate Court.
(Let me see if I've got this. Alden put together the case that caused the Washington helmet law to be found unconstitutional by a Washington State Appellate Court, and just beat back seven convictions past that point; all at his own expense. Alden undoubtedly has the skills necessary to have the persisting harassment by the Washington State Patrol stopped in Federal Court, but the resources of the motorcycling community are being directed, instead, to lobbying the Washington Legislature to replace! . . . REPLACE!! . . . a helmet law which is already determined by the courts to be void for vagueness? Have I got that?! Ed)
FLORIDA COURT RULES FLORIDA HELMET LAW UNCONSTITUTIONAL (March 1995)
Chico Yasco, Florida State Director for the Helmet Law Defense League, won a major victory against Florida's twenty five year old helmet law. Yasco won a "not guilty" decision on three charges of wearing an illegal helmet, on the grounds that the Florida helmet law is unconstitutionally vague.
Defense Attorney Demetrios C. Kirkiles, working pro bono, and Chico Yasco (crediting help provided from HLDL headquarters in California) presented their case as never before tried in the State of Florida. After hearing three-and-one-half hours of testimony, Broward County Judge Peter B. Skolnik, in a ten page written opinion, declared Florida's helmet law unconstitutional.
In explaining its decision, the court wrote: "This case came before this court from the consolidation of three traffic citations issued by two police officers. . . . The court having heard testimony from both officers and the defendant (Chico) and appropriate notice being given to all concerned parties including the state attorneys office, finds as follows:
"2. The officers predicated the stops based on the appearance of the helmets. They testified the helmets appeared too small, too tight and close to the head, and to be of a type thought by the police officers to be in violation of the statute.
"3. The officers confiscated helmets on two of the three occasions.
"4. Officer Smith testified he observed the Defendant in traffic from a distance as he was driving in the opposite direction. Officer Scarapino testified he observed the Defendant as the Defendant made a right turn at the intersection. Officer Scarapino was stopped at the intersection facing south. The defendant proceeding ease made a right turn at the intersection.
"5. After the stop the officers made a visual inspection of the helmets and determined that they were in violation of Florida statute Section 316.211(1) because the padding was too thin, the weight of the helmet was too light, and the size was too small. Both officers also testified that at least two inches of styrofoam padding was necessary to make the helmet compliant with the standards.
"6. The officers based their determination that the helmets were unsafe on their own subjective knowledge and personal experience.
"7. The officers were not engineers, materials experts, or helmet experts.
"8. They received to formal police training in detecting unsafe helmets.
"9. There was no scientific testing done on these particular model helmets by the police officer or any other governmental testing agency prior or subsequent to the issuance of the citations.
"10. These particular model helmets were not the subject of a recall and were not the subject of any pending DOT investigation at the time the citations were issued.
"11. The helmets in question were properly labeled in accordance with 49 CFR 571.218. The officers agreed that the required certification labeling was on the helmets and was in accordance with the statute.
"12. The officers produced a list of approved helmets issued 1989 from the Florida Highway Patrol. The list was difficult to obtain and did not indicate on its face, nor was any evidence presented, as to who compiled or published the list. No updated or subsequently approved helmet list is available.
"This court finds the defendant 'NOT GUILTY' on all counts of improper headgear under Florida Statute Section 316.211 which incorporates FMVSS 218, under the due process clauses of the Fourth and Fourteenth Amendments of the United States Constitution and Article I Section 9 and Section 16(a) of the Florida Constitution. The ordinary citizen must be able to read FMVSS 218 and understand clearly the mandated behavior."A citizen can, as in the instant case, comply with the law and still be subject to punishment.
"This court further finds there is a substantial inconsistency in the courts regarding ruling on this statute and certifies the following question as one of great public importance:
"WHETHER FLORIDA STATUTE SECTION 316.211, WHICH INCORPORATES 49 CFR 571.218 (FMVSS 218) AND FLORIDA DEPARTMENT OF TRANSPORTATION ADMINISTRATIVE ORDER 15.B-1.006, IS UNCONSTITUTIONAL AS VIOLATIVE OF DUE PROCESS BECAUSE; CITIZENS ARE NOT AFFORDED FAIR WARNING OF PROSCRIBED CONDUCT DUE TO THE UNAVALIBILITY AND LACK OF THE STATUTORILY REQUIRED CURRENT LIST OF APPROVED HELMETS; THE STATUTORY IMPOSITION OF SELF CERTIFICATION BY HELMET MANUFACTURERS THAT HELMETS MEET PERFORMANCE REQUIREMENTS CANNOT BE RELIED UPON WITH CERTAINTY BY CONSUMERS AS COMPLIANCE; AND/OR A JUDICIAL DETERMINATION THAT A SPECIFIC HELMET IS IN COMPLIANCE CANNOT BE RELIED ON WITH CERTAINTY AS COMPLIANCE."
The importance of this decision is that, in Florida, a finding that a statute is unconstitutional is subject to immediate (within 30 days) review by the Florida Supreme Court. The certified question (above) must be answered, and a final determination by the Supreme Court rendered.
If the process is followed as prescribed by law, Florida will be a helmet law free state in time for Daytona.
Chico insists that this victory couldn't have been possible without the helmet of the Helmet Law Defense League, but the HLDL is quick to respond that this victory wouldn't have come at all were it not for the dedication of Chico and his trusty attorney/friend Demetrios Kirkiles -- a one-man dynamo of litigative expertise.
The one thing we don't have to wait for March first to report is that this case, like the Washington decision, absolutely confirms the HLDL's fighting slogan -- "NO LIST?, NO LAW!"
(While Chico and Demetrios are, at their own expense, struggling to make sure this case holds up -- which would take out a law that has lasted over a quarter of a century in Florida -- the resources of Florida's motorcycling community are being spent lobbying the Florida Legislature for a bill which would exempt motorcyclists from wearing helmets on Sunday . . . or otherwise just picking up trash on the freeway. Am I missing something here? Ed)