Sunday afternoon after church I spent several hours at UTC reviewing cases and statutes to assist my daughter Abigail in a traffic/transportation arrest in a notorious Virginia county, Smyth. On Feb. 27 she has a bench trial in the district court in Marion before a judge on the charge of reckless driving, general, filed against her enroute home for Christmas.
Out of respect, she is returning to the U.S. from the Netherlands to deal with this slab of police flummadiddlery and to defeat the criminal charge under the state’s commercial transportation law.
But I didn’t spend the afternoon thinking only about Virginia.
In my Sunday best — bow tie included — I studied Tennessee materials for my Christian reconciliation and racial reparations legal reform project, transportation administrative notice. Chattanooga since Feb. 20, 2018, has neither complied with nor rebutted its implied argument about the limits on city police department power.
“Officer, I am traveling under the [administrative] notice and I make no statement apart from my attorney being present.” This line uttered on the side of the road is a defense useable in the city based on this public document intending to put Mr. Berke and his troops in blue in their proper realm and into a proper posture of respect for the people and their rights.
Evidence is mounting in favor of my analysis. State government has an interest in regulating transportation. It prescribes which party performs this enforcement of safety regulations, and upon whom the enforcement stripes are laid.
The problem in Tennessee, as it is across the country, is that the police and legal / court establishment insist on not seeing the vital distinction between travel and transportation. Billions of dollars are to be collected by insurance companies, lawyers and corporate jailers in state violence upon innocent people. The system has too many constituencies to change internally.
My reform is a bottom-up local economy fight to overturn a Jim Crow system that oppresses blacks and everybody else. State law does not offend the individual person in his liberty and freedom to use the open road and public right of way apart from the state system of privilege.
A real eye opener is the lengthy chapter in Tennessee Jurisprudence on carriers and motor carriers. I printed out that chapter this morning and will be going through it with a highlighter.
We are gaining on the system, and believe that for God’s glory and our benefit we can bring to a halt 80 years of abuse by the predatory state against its own people for money.
Here, now, gems.
Regulating to protect public, serve its needs
➤ “The words transportation service do not mean an individual, firm or corporation in the business of furnishing transportation. They mean the accommodation of the transportation needs of the public. In this interpretation, the concern of the commission is how well the public is served, not how prosperous the licensee may be.” Secretary of Army ex rel Department of Defense v. Tennessee public service commission, 807 S.W.2D 282, 1991, court of appeals. (Emphasis added.) Meaning — transportation involves people who are in business and serving “the transportation needs of the public.” Meaning — the people and their rights are first, and everybody else is regulated by the state police power. Privileged parties in transportation serve the public interest (the free people) and are thus subject.
➤ “The use of the highways for private purposes is their primary and preferred use, and their use for transportation for hire, as by common Carrier, is a privilege which the state may deny, condition or regulate as it chooses.” Dilworth v state, 204 Tennessee 522, S.W.2D 219 1959. (Emphasis added.) In other words, the roads are intended for the people for their pleasure primarily, with shipping second.
➤ Jim Crow in Tennessee operates through the privilege system. The state ordains that certain callings, trades and occupations be state-owned, and thus a privilege. The citizen goes to the state, applies for the privilege, pays fees and fills out forms, and obtains the privilege. He can now participate in a taxable privileged activity under the state grant. Here is the process by which Tennessee steals a right and converts it into a privilege. It’s in the jitney statute in the motor carrier law.
65-19-101. Common carrier — Business declared a privilege.
Any person operating for hire any public conveyance propelled by steam, gasoline, electricity, or other motive power, for the purpose of affording a means of street transportation similar to that ordinarily afforded by street railways (but not operated upon fixed tracks) by indiscriminately accepting and discharging such persons as may offer themselves for transportation along the course of operation, is declared to be a common carrier, and the business of all such common carriers is declared to be a privilege. (Emphasis added)
➤ “A public highway is such a passageway as any and all members of the public have an absolute right to use as distinguished from a permissive privilege of using same.” Standard Life Ins. Co. v. Hughes, 203 Tenn. 636, 315 S.W.2d 239, 243, 1958 Tenn. LEXIS 229 (1958). (emphasis added)
➤ “Public highways. . . are open as a matter of right to the use of the public for the purposes of vehicular travel.” Buck v. Kuykendall, 267 U.S. 307, 314 (1925 ) (emphasis added)
➤ “The constitutional right of interstate travel was fully recognized long before adoption of the Fourteenth Amendment. *** ‘For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States, and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.’” Shapiro v. Thompson, 394 U.S. 618, 643; Dunn V. Blumstein, 405 U.S. 330, 342 (1972) No. 70-13; State v. Stroud, 52 S.W. 697, 698 (Tenn. 1899); (Also see 3 Kent, Comm. 432). (emphasis added)
➤ “According to the Tennessee Code Annotated (TCA) Title 65 Chapter 15, the Tennessee Highway Patrol is the sole and lead agency in the State of Tennessee responsible for enforcing laws related to size, weight, and safety regulations for commercial motor vehicles and the Federal Motor Carrier Safety Assistance Program and it does not fund any sub-grantees.” Commissioner David Purkey, “Commercial Vehicle Safety Plan for the Federal Motor Carrier Safety Administration’s Motor Carrier Safety Assistance Program Fiscal Year 2018,” September 2018. (Emphasis added)
U.S. authority? Yes, CPD enforcing federal law
It’s not clear how Chattanooga police under Mayor Andy Berke and chief David Roddy obtain authority to enforce federal transportation law. All of Title 55 is federal, and so is Tile 65. Delegated authority cannot be sub-delegated, according to a maxim of law.
➤ Tennessee regulation of highway commerce is entirely a federal issue, as the state is bound by federal law at U.S.C. Title 49. It regulates automobiles and heavier devices as “motor vehicles” to “protect the lives and health of its people” (i.e., the general traveling public, folks not subject to the police power).
A state can, if it sees fit, build and maintain its own highways and in the absence of congressional action their regulation is peculiarly within the competence of the state, even though interstate commerce is materially affected. A state may impose nondiscriminatory restrictions with respect to the character of motor vehicles moving in interstate commerce as a safety measure and as a means of securing the economical use of its highways. The sizes and weights of automobiles have an important relation to the safe and convenient use of the highways, which are matters of state control. There necessarily remains to the state, until Congress acts, a wide range for the permissible exercise of powers appropriate to their territorial jurisdiction, although interstate commerce may be affected. The exercise by the state of its police power is superseded only where the repugnance or conflict is so direct and positive that the two acts cannot be reconciled or consistently stand together. The principle that the state may act when Congress in regulating interstate commerce has occupied only a limited field is not limited to cases in which the state exercises its power to protect the lives and the health of its people, but extends to more general purposes.” MCCANLESS et al. v. SOUTHEASTERN GREYHOUND LINES, INC., et al. 178 Tenn. 614 *; 162 S.W.2d 370 **; 1941 Tenn. LEXIS 90 *** (Emphasis added)
➤ Pierce County, Washington v. Guillen, Legal Guardian of Guillen, et al., Minors, et al., 537 U.S. 129 (2003) “It is well established that the Commerce Clause gives Congress authority to regulate the use of the channels of interstate commerce.” United States v.Lopez, 514 U. S. 549, 558 (1995) (citing United States v.Darby, 312 U.S. 100, 114 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 256 (1964)). In addition, under the Commerce Clause, Congress “is empowered to regulate and protect the instrumentalities [MOTOR VEHICLES] of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” Lopez, supra, at 558 (citing Shreveport Rate Cases, 234 U. S. 342 (1914);Southern R. Co. v. United States, 222 U. S. 20 (1911); Perez v.United States, 402 U. S. 146 (1971)). (Emphasis added)
Get your TAN now: Transportation Administrative Notice creates traffic court defense, cause of action vs. cops
➤ Title 55 and 65, dealing with use of the roads for hire, are purely administrative law.
This point is made repeatedly to me by the Gnome of Strawberry Plains, even last night in a long talk about fighting back and defeating the system on its own terms. This case is the basis of my argument that we defeat criminal prosecution under the traffic law by demanding exhaustion of administrative remedies and demand our case be heard in agency in a contested case hearing before an administrative law judge or hearing officer in Nashville where the DOS has its address. Such demand might end any prosecution by local DA Neal Pinkston.
McMINNVILLE FREIGHT LINE, INC. v. ATKINS 514 S.W.2d 725 (1974)
This Court held in Hoover Motor Express Co. v. Railroad and Public Utilities Commission, 195 Tenn. 593, 261 S.W.2d 233 (1953), that the predecessor in name of the present Tennessee Public Service Commission is an administrative board and not a court; that the grant or refusal of a license to use public highways in commerce is purely an administrative question. The fact that proceedings in quest of a certificate from the subject Commission bear, in part, similarity to proceedings of quasi-judicial bodies, as urged by appellant, does not alter the holding of Hoover, which has been reaffirmed in a number of subsequent cases. (Emphasis added)
Prosecution under the Tennessee traffic/transportation law usually falls short, and the citizen may fight back to defeat the action. Privilege and commerce are the gateway claims by the officer against the accused. With the officer on the stand, the accused demands his evidence. What evidence does he have of commercial activity?
Privilege is the key essential element in the Jon Luman and Gregory Parker cases that the state refuses to face. ‘The term “element” in the context of criminal proscriptive statues, however, denotes a component of such a statute that the State is required to prove beyond a reasonable doubt. See T.C.A. § 39-11-201. The State’s burden to prove the crime’s essential elements has been elevated to the status of a due process mandate. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). State v. Jarman, 2018.TN.0001351 (Emphasis added)
‘Channels of commerce’ federal
➤ Garcia v. Vanguard Car Rental USA, Inc., No. 5:06-cv-220-Oc-10GRJ (M.D.Fla. 03/05/2007)
This first category of Commerce Clause authority “concerns Congress’ power to regulate, for economic or social purposes, the passage of interstate commerce of either people of goods.” United States v. Rybar, 103 F.3d 273, 288-89 (3d Cir. 1996) (Alito, J., dissenting). The Lessor Defendants argue that Congress appropriately invoked this authority because strict vicarious liability lawsuits against lessors of motor vehicles typically arise following an automobile accident that occurs on roads, streets, intrastate or interstate highways, all of which are channels of commerce. See, e.g. Pierce County, Washington v. Guillen, 537 U.S. 129, 147 (2003) (upholding legislation aimed at improving safety in the “channel of commerce,” including streets, roads and federal highways); [National driver registry database] State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941) (recognizing that navigable waters, railroads, and highways are “channels of commerce” which can be regulated under Congress’ Commerce powers); United States v. Ballinger, 395 F.3d 1218, 1225-26 (11th Cir. 2005) (“channels of commerce” are “the interstate transportation routes through which persons and goods move,” and include highways, railroads, navigable waters, and airspace) (internal quotations and citations omitted).
This is a distinction without a difference. Whether or not the products — motor vehicles — actually travel out of state, or whether the particular road in question leads out of state is irrelevant. “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” Lopez, 514 U.S. at 558. The fact that an accident which results in potential vicarious liability for lessors occurs on roads that are solely for intrastate travel is of no moment. See Atkinson, 313 U.S. at 522-24 (Congress can regulate channels of commerce such as highways and navigable waters, even if portions of those channels are no longer used for interstate commerce); Overstreet v, North Shore Corp., 318 U.S. 125 (1943) (roads that are not themselves interstate highways are still within the purview of Congress’ Commerce powers as they may be feeders and extensions within the reach of the main channels of interstate commerce).
It is clear to the Court that Congress’ attempt to regulate the motor vehicle rental industry by uniformly eliminating the costs of no fault vicarious liability claims, even where such costs relate to solely intrastate travel and accidents, substantially affects interstate commerce. In fact, the car rental industry, together with airlines, railroads, and over the road bus and trucking enterprises, constitute the most visible components of modern interstate commerce. Regulating the costs associated with the rental and operation of motor vehicles as “instrumentalities” of interstate commerce, on roads and interstate highways which are “channels” of interstate commerce, must necessarily have an “impact” on interstate commerce.
In this case, however, the channels implicated are roads and highways, which are one of the most traditional “channels of commerce,” even when the particular road in question does not directly lead to another state.
➤ Police regulation in Chattanooga,Hamilton County and the rest of Tennessee is legally upon shipping, freight, traffic, transportation — or commerce. Shipping uses “channels of commerce” and trucks and commercial vehicles are instrumentalities of commerce. But not private cars and private pleasure users, whose occupants are not subject to tax because they are not commercial. Here is United States v. Ballinger, No. 01-14872 (11th Cir. 01/10/2005):
Channels of commerce are “the interstate transportation routes through which persons and goods move.” Morrison, 529 U.S. at 613 n.5 (quoting United States v. Lankford, 196 F.3d 563, 571-572 (5th Cir. 1999)). These channels include highways,see, e.g., Pierce County v. Guillen, 537 U.S. 129, 147, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003); United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir. 1995); United States v. New Buffalo Amusement Corp., 600 F.2d 368, 391 n.4 (2d Cir. 1979),
We characterize highways as channels of commerce, since they are routes for the interstate transportation of people and goods. However, it bears noting that roads resemble instrumentalities of commerce in certain respects as well (for example, unlike oceans and airways, they are artificially constructed and — albeit at some cost — moveable); thus, the Supreme Court has variously labeled highways both as channels and as instrumentalities. Compare Pierce County, 537 U.S. at 147 (channels); and Oklahoma ex rel. Phillips, 313 U.S. at 518 (channels), with Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 197, 95 S. Ct. 392, 42 L. Ed.2 d 378 (1974) (instrumentalities); Alstate Const. Co. v. Durkin, 345 U.S. 13, 16, 73 S. Ct. 565, 97 L. Ed. 745 (1953) (instrumentalities); Overstreet v. N. Shore Corp, 318 U.S. 125, 129-30, 63 S. Ct. 494, 87 L. Ed. 656 (1943) (instrumentalities); and Monongahela Navigation Co. v. United States, 148 U.S. 312, 342, 13 S. Ct. 622, 37 L. Ed. 463 (1893) (instrumentalities).