I. RIGHT TO CROSS-EXAMINE FULLY
Here is an example of what may be learned by cross-examining the ticketing officer. According to Michigan State Polic (MSP) Lt. Thad Peterson, "We cannot enforce every speed limit." "We set speed limits in a certain way." "Police have a difficult time enforcing speed limits if the speed [limit] is too low and most motorists are speeding." "It's hard to get down to 25 miles per hour." "Low speeds create a false sense of security." "Lower speed limits do not necessarily improve safety." "There are fewer accidents when most motorists are doing the same speed."
Lt. Peterson said the foregoing at the Traffic Safety Association of Macomb (TSAM), on Tuesday, 13 September 2005. He was "speaking predominantly to police traffic personnel," says the newspaper article reporting his educational lecture published the next day under the title, "Drivers tend to set own speed limits: State cop says slow speeds can also cause havoc," by Gordon Wilczynski, The Macomb Daily, p 3A (14 Sep 2005). The reporter added, ""Peterson said speed studies must be done carefully or the results are meaningless. . . . Unreasonable speed limits encourage disrespect for the entire traffic control system." The article elaborated that "Peterson said speed in school zones is determined by several factors, including roadside environment, lane widths and characteristics and proximity of pedestrians to travel lanes. Also, he said, traffic experts consider road surface (new or old) and motor traffic vehicle volumes."
Lt. Peterson is referring to when "traffic experts" are allowed to decide speed limits, not to when political hacks simply make up speed limit numbers out of their heads! or in their words, they "set" "speed limits . . . legislatively."
Contact with the TSAM revealed that the MSP has this type information posted at its websites, e.g.,
Were the speed limits in your area set "legislatively," i.e., by political hacks? or by "traffic experts"? You won't know unless you ask! Preferably, you ask in advance, in writing, in a legal process typically called "discovery." Having the information before your court date helps you better prepare your case.
Of course, in court at the legal proceedings, e.g., pre-trial hearing, and the trial itself, you can ask the ticketing officer. There is in fact a lot you can ask.
Michigan case law, e.g., People v Dellabonda, 265 Mich 486; 251 NW2d 594 (1933) and People v Bell, 88 Mich App 345; 276 NW2d 605 (1979), provides that on cross-examination, there is a right to draw from the witness anything tending to modify, weaken, contradict, or explain testimony on direct examination, or which tends to affect the credibility of witnesses.
It has long been held that, within reasonable limits, a witness may on cross-examination be very thoroughly sifted upon his character and antecedents. People v Falkner, 389 Mich 682, 688; 209 NW2d 193 (1973).
On cross-examination, a witness for the purpose of impeachment, may be asked and compelled
to answer as to particular traits of character, or as to particular facts, or whether he has committed wrongful or immoral acts, even though such acts may be irrelevant in collateral to the principal controversy or issues involved in the case, and
interrogated as to his occupation or vocation, habits, or associates. People v Cutler, 197 Mich 6; 163 NW 493 (1917).
This is especially pertinent as police officers regularly speed (violate the law themselves)!
A witness on cross-examination may also be asked any questions material to the issue, irrespective of the extent of the direct examination, People v DuPounce, 133 Mich 1; 94 NW 388; 103 Am St Rep 435 (1903).
All this is necessary in view of the circumstances involving "speed limits," a term having no basis in nature, nor established by medical, engineering or scientific principles, hence violative of due proces, as described herein.
And of course, pertinent case preparation means that one does pertinent research and "discovery":
obtaining copies of ticket, front and back
device calibration records
any and all pertinent ordinances/laws (to verify there is in fact such as rule as alleged)
pertinent "Traffic Control Orders" (verifying that engineering guidance has been utilized, not political whimsy and pet peeves, etc.)
II. UNCONSTITUTIONAL ENACTMENTS ARE NOT LAWS
We must distinguish form and substance. Not just anything passed by legislators that has the form of a law, is in fact a law. To be a law, an enactment must be constitutional, i.e., within the actual de jure authority of the Legislature. This condition precedent fact is well settled.
“All laws which are repugnant to the Constitution are null and void.” Marbury v Madison, 5 US (2 Cranch) 137, 174, 176; 2 LE 60 (1803).
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda v Arizona, 384 US 436, 491; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; creates no office. It is in legal contemplation, as inoperative as though it had never been passed.” Norton v Shelby County, Tennessee, 118 US 425, 442; 6 S Ct 1121; 30 L Ed 178 (1886).
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no election.” West Virginia State Board of Education v Barnette, 319 US 624, 638; 63 S Ct 1178; 87 L Ed 1628 (1943). Compare Romer v Evans, 517 US 620; 116 S Ct 1620; 134 L Ed 2d 855 (1996).
One of Americans' basic “Bill of Rights” rights is “the basic constitutional right to travel,” upheld as long ago as in cases such as Crandall v Nevada, 73 US 35; 18 L Ed 745 (1868), Pinkerton v Verberg, 78 Mich 573; 44 NW 579 (1889), and once again reaffirmed by the U.S. Supreme Court in so many words, "right to travel," in Dunn v Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1974). This Constitutional "right to travel" has been used to strike down a number of politician-invented laws, devised on various fraudulent pretexts.
The “Bill of Rights” presumes that politicians will foreseeably violate our rights. So the whole idea of the "Bill of Rights" is to forbid politicians to even vote on taking away our therein-protected rights, including the “right to travel.”
Judges must obey and enforce the constitution and laws themselves, e.g., Matter of Hague, 412 Mich 532; 315 NW2d 524 (1982); Holman v Athens Empire Laundry, 149 Ga 345; 100 SE 207; 6 ALR 1564, 1574-5 (Ga, 1919) ("Neither the opposite party nor the public has the right, legal or equitable, to invade the clear legal rights of another. . . . final settlement of . . . rights does not lie in the broad discretion of the chancellor [court], but in the clear legal and equitable rules which bind the chancellor himself.") Judges must follow the law; jurors have power to see that they do. State of Georgia v Brailsford, 3 US (Dall) 1, 4; 1 L Ed 483, 484 (1794); United States v Battiste, 24 Fed Cas 1042, 1043 (CCD Mass, 1835); Commonwealth v Anthes, 71 Mass (5 Gray) 185, 208 (1855); United States v Spock, 416 F2d 165, 181 (CA 1, 1969); United States v Johnson, 718 F2d 1317, 1322 (CA 5, 1983), etc.
Unconstitutional enactments are treated as though they had never existed. For example, in one state alone, here are examples: Bonnett v Vallier, 136 Wis 193, 200; 116 NW 885, 887 (1908); State ex rel Ballard v Goodland, 159 Wis 393, 395; 150 NW 488, 489 (1915); State ex rel Kleist v Donald, 164 Wis 545, 552-553; 160 NW 1067, 1070 (1917); State ex rel Martin v Zimmerman, 233 Wis 16, 21; 288 NW 454, 457 (1939); State ex rel Commissioners of Public Lands v Anderson, 56 Wis 2d 666, 672; 203 NW2d 84, 87 (1973); and Butzlaffer v Van Der Geest & Sons, Inc, Wis, 115 Wis 2d 539; 340 NW2d 742, 744-745 (1983).
III. EX POST FACTO LAWS ARE UNCONSTITUTIONAL
The United States Constitution, based upon the notion of due process and fairness, bans after the fact laws, i.e., "ex post facto" laws. ("No bill of attainder or ex post facto Law shall be passed." Constitution, Article I § 9). This means that, to be constitutional, a law must tell the citizenry IN ADVANCE, what act is contemplated by the prohibition of the law. It is not constitutional, to decide retroactively, after the fact, e.g., that what was done previously, was wrong. Laws must give advance notice. So when a law does not give advance notice, a citizen of course has a right to challenge and oppose it. And, if unconstitutional, he is not "bound to obey" it. 16 Am Jur 2d § 177. That principle is involved in the early history of speed laws.
IV. THE SAFETY ISSUE WITH RESPECT TO "SPEED" IS UNCONSTITUTIONAL
Americans have a right to protect themselves against and oppose unconstitutional "laws" (which are in fact, no laws at all). That's how we became a country! That right to challenge suspect laws includes vague and indefinite speed laws. Legislators have imposed unconstitutional limits on motoring. And Americans have successfully opposed such laws.
First, let's consider the issue thus. Surely everybody would agree, we ought to ban any speed that would endanger life, limb or property of any person. That sounds like such a good law!! One state thought that would be a great thing to ban: ban operating a vehicle at a speed so as to endanger life, limb, or property of any person.
An American challenged the law as unconstitutional. Imagine that!
The court agreed that the law is unconstitutional, and struck down the law. How could it do that?!!—demand the fanatics who say that every speed that endangers must be banned. The court answered. Such a law is truly meaningless because there is no such thing as a motor vehicle speed incapable of endangering life, limb, or property:
"One could go further and say that the statutory verbiage is practically meaningless. We may guess at what the draftsman intended . . . But that is not sufficient. For validity the statute must be informative on its face. It attempts to set up two prohibitions. The first is as to driving ‘at such a speed as to endanger the life, limb, or property of any person.' The second prohibition is against driving a motor vehicle on any highway ‘at a rate of speed greater than will permit such person to bring the vehicle to a stop without injury to another or his property.' . . . As to the second prohibition, the only possible meaning is that a speed is unlawful unless it permits the car to be stopped without injuring anyone or anything. That amounts to saying that if, under any circumstances, the driver is unable to bring his car to a stop without injuring someone or something, he is driving too fast." People v Firth, 3 NY2d 472; 168 NYS2d 949; 146 NE2d 682 (1957).
Similar cases include Empire L Ins Co v Allen, 141 Ga 413; 81 SE 120 (1914); Ladd v State, 115 Tex Crim 355; 27 SW2d 1098 (1930); People v Price, 16 Misc 2d 71; 1698 NYS2d 200 (1957) and Armondi v Johnson, 16 App Div 2d 712; 226 NYS2d 714 (1962).
Another law banned driving a motor vehicle faster than would permit the driver to bring the vehicle to a stop without injuring another person or his property. An American challenged the law as too vague and indefinite to be constitutional. The court agreed:
"The statute makes it a traffic infraction to set a vehicle in motion, even at the lowest speed possible to constitute motion, if such vehicle is thereafter involved in an accident which causes injury to another or his property. The statute imposes liability without any fault; its words constitute the operator of a vehicle the insurer of the public on a public highway . . . [and] does not set up a standard for the operation of a motor vehicle on a public highway a deviation form which can properly be made the basis for a criminal prosecution." People v Gaebel, 2 Misc 2d 458; 153 NYS2d 102 (1956).
A similar case is People v Horowitz, 4 Misc 2d 632; 158 NYS2d 166 motion gr 3 NY2d 789; 164 NYS2d 41; 143 NE2d 796 (1956).
We are all surely glad that the courts protected us from such brazenly unconstitutional and irrational "laws." We are glad the courts made the above cited conclusions. Otherwise, all driving is illegal!! The American economy and national interest depends on the right to drive, conduct vehicular transportation of goods and persons. So it is important to understand and realize, that when the opposition pretends to defend safety, it is committing a scam. In essence, such scam artists would ban all driving. There is no such thing as a motor vehicle speed incapable of endangering life, limb, or property.
Speed limits derive from politicians pretending, feigning, concern for our safety! The Supreme Court has struck down as unconstitutional, at least one law when the government's concern on an issue was feigned, faked. The case is Foster Packing Co v Haydel, 278 US 1; 49 S Ct 1; 73 L Ed 147 (1928) (state discriminated between an in-group and disfavored people, residents vs. nonresidents, requiring in-state processing of indigenous shrimp as a prerequisite to allowing shipments out-of-state; the state feigned a valid concern, but had a different real purpose). Here, the states feign a concern about speeding, but discriminate between people. The favored ones (roadway officers) get to speed, often at speeds far higher than the disfavored people, regular drivers, not members of the in-group. If regular drivers going five mph "over" is unsafe, surely going far more than that "over", to catch that member of the disfavored class, is even more so! But that basic logic is beyond legislators! It's about time that more laws, speed limit laws, be stricken on the basis that the concern is feigned, a pretext, a sham!
One might argue that being involved in an accident renders the speed "unsafe." No law nowadays dares to say that. But even if one were to do so, allege that being involved in an accident creates a "presumption" of unsafeness, even that would be subject to rebuttal.
Moreover, the claim that lowered speed limits are needed to save lives is inaccurate. The real truth is
“The opponents of higher speed limits . . . said that [repealing the 55 mph law] would cause 6,000 more deaths per year They said Republicans in Congress would have 'blood on their hands' for their callous disregard for human life. But guess what: In every year since the speed limits were raised, death rates per mile traveled on the highways have fallen.”—Stephen Moore,
“Untrue at Any Speed,”
National Review Online (2 December 2003).
In the 1914-1918 World War, the French Army Comander, General Joseph Joffre (1852-1931) "was in constant and personal touch with his [subordinate] commanders. Placidly ensconced in the back seat of his car, he would be driven on his rounds at seventy miles an hour by his appointed private chauffeur Georges Bouillot, three times winner of the Grand Prix auto race," says Barbara Tuchman, The Guns of August (New York: Bonanaza Books, 1962), Chap 11, p. 184 (Dell Paperback, p 210). Those were 1914 roads! Can you imagine the fate of any cop trying to arrest him for speeding: perhaps shot on the spot for treason?!! (The webmaster's former Colonel, then a Captain in October 1962, the night of the "Cuban Missle Crisis," ordered his sergeant to shoot the official attempting at a train embarkation point, to enforce a departure rule, compliance with which would have obstructed troop movement, unless the man shut up, ceased and desisted, forthwith! Troop movement thereupon proceeded unhindered, the would-be enforcer got the point!)
V. INDEFINITE AND VAGUE SPEED LAWS ARE UNCONSTITUTIONAL
A law can be "void for vagueness." This circumstance occurs when it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct [driving safely] is forbidden. . . . United States v Harriss, 347 US 612, 617; 74 S Ct 808, 812; 98 L Ed 989, 996 (1954), cited in People v DeFillippo, 80 Mich App 197; 262 NW2d 921, 923 (1977).
Legislators, however, insist on passing unconstitutional laws against driving, under the guise of speed limit control. For example, one state banned driving around a curve without having the vehicle under control or without reducing the speed to a reasonable and proper rate. An American challenged the "law," arguing that the law was so indefinite and uncertain as to be void, thus it violated constitutional provisions forbidding depriving Americans of life, liberty, or property without due process of law. Additionally, the Constitution also mandates that the accused must be fully and plainly informed of the character and cause of the accusation or charge against him or her. The court agreed.
|"The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its application, it is unconstitutional.
"The concept of overbreadth, on the other hand, rests on principles of substantive due process which forbid the prohibition of certain individual freedoms [e.g., personal liberty].
"The primary issue is not reasonable notice or adequate standards, although these issues may be involved. Rather the issue is whether the language of the statute, given its normal meaning, is so broad that its sanctions may apply to conduct sanctioned by the Constitution. Frequently, the resolution of this issue depends upon whether the statute permits police and other officials to wield unlimited discretionary powers in its enforcement." Landry v Daley, 280 F Supp 938, 951 (1968). [See 45-stops-in-314-miles example in DWB Context.]
Legislators repeatedly insist on passing unconstitutional laws against driving, under the guise of speed limits. For example, one law banned driving a motor vehicle
"at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person of the safety of any property."
An American challenged the law as unconstitutional. On review, the court agreed with the American, and ruled that the law was indeed unconstitutional. Here are quotes from the court decision:
|"Who is to determine when the automobile is under control in going around a curve in a particular case, or whether the speed at which it is operated is reasonable and proper? This cannot be left, or course, to the judgement of the operator, for that would result in a practical annulment of the statute.
"The court and jury trying the case, if the statute be upheld, would, of course, have to determine whether the automobile was under control, and whether the speed was reasonable and proper in each particular case. Nobody would know, until after a trial was had and a judgment rendered, what the law was. No man, in driving an automobile around a curve, would have any criterion by which he could determine at what speed the same might be operated without committing a violation of the criminal law.
"The judgement of each particular jury would be the criterion which would have to be observed, and this judgment cannot be ascertained until after the alleged offense has been committed.
"To state the case in another way, it may be said that the Legislature has not created an offense at all. It has not exercised its legislative power, but has attempted to cast the same upon the courts and juries in this class of cases. . . .
"And not only is it in effect a delegation to the courts of legislative power, but an attempt to delegate to them power to pass ex post facto laws, because the law governing in particular cases would not be declared, or would not be known, until after the offense was actually committed." State v Lantz, 90 W Va 738; 111 SE 766; 26 ALR 894 (1922).
In a parallel case, the court added to the foregoing reasoning by noting that as the law failed to define what was banned in a uniform way, the matter was left to the varying opinions of different juries. Hence, the law was not uniform in its operation. So the law was unconstitutional and unenforceable. Carter v State, 12 Ga App 430; 78 SE 205 (1913).
Another law said that
"no person shall operate a motor vehicle or motorcycle upon any public street at a greater speed than is reasonable and safe, not to exceed a speed of 30 miles per hour, having due regard for the width, grade, character, trafficy, and common use of such street or highway; or so as to endanger life, limb, or property in any respect whatsoever."
In Howard v State, 151 Ga 845; 108 SE 513 (1921), a court struck down that law as well. Once again, laws must be uniform, definite, and give advance notice, in order to provide due process and the constitutional safe guards we have a right to expect. Another similar case is Phillips v State, 60 Ga App 622; 4 SE2d 698 (1939).
One law banned speed above a designated rate whenever the land contiguous thereto was "closely built up." An American challenged the law unconstitutionally vague, and argued that the constitution guarantees to every citizen the right to know the nature and character of an accusation against him. The court agreed and struck down the law. The court said the ban was so vague as to make impossible any standard of interpretation which might be applied to his own acts by the driver. Ex parte Slaughter, 92 Tex Crim 212; 243 SW 478; 26 ALR 891 (1922).
A similar case is Ex parte Carrigan, 92 Tex 309; 244 SW 604 (1922).
One "law" banned passing other vehicles at a speed that would endanger life or limbo of any person or the safety of any property. That wording too was held clearly unconstitutional. The court rejected the law on the basis that the law provided no standard or criteria by which a driver could determine in advance whether his speed was lawful. Ladd v State, 115 Tex Crim 355; 27 SW2d 1098 (1930).
In another case, another law restricted speed based on a purported concern for safety. Again, an American sued, challenged the law. The court upheld the challenge. It found that a person of ordinary intelligence cannot know at what speed he may drive and be within the law. The American may only guess at the meaning of the "law" and hope that a subsequently convened court and jury are in accord with his guess. This is of course unconstitutional. State v Campbell, 196 A2d 131 (RI, 1963).
Vague laws with numbers that cannot be known in advance have long been struck down, for example, a law controlling future prices. Obviously manufacturers and sellers are not gifted with magical future-casting abilities and cannot "know" future prices. Int'l Harvester Co of America v Com of Kentucky, 234 US 216; 34 S Ct 853; 58 L Ed 1284 (1914). The Court said about the mandated numbers,
|"What rate of speed is reasonable and proper? Who should determine this question? What is this test as to the rate of speed which can be employed, and how is the driver of an automobile to know when he is driving at a rate of speed prohibited by the act?
"Manifestly this question cannot be determined by the consequences which ensue from driving a machine. The law must so definitely and certainly define the offense that a person of reasonable understanding can know at the time of the commission of the act that the law is being violated.
"One jury might say that a certain rate of speed was reasonable and proper. Another jury might reach exactly the opposite conclusion from exactly the same state of facts and the same circumstances.
"One court might hold, upon a review of the facts, that the rate of speed used was in violation of the act, and another court might rule otherwise.
"We appreciate thoroughly the difficulty in prescribing the maximum rate of speed which can be employed in all cases; but this furnishes no reason why, in the language of the Supreme Court of the United States, the Legislature should be permitted to set a dragnet and leave the courts to determine who shall be detained in the net and who should be set at liberty." Hayes v State, 11 Ga App 371; 75 SE 523 (1912).
"To compel [people] to guess, on peril of indictment, what the community would have given for them [here, what the speed should be] if the continually changing conditions were other than they are, to an uncertain extent; to divine prophetically what the reaction of only partially determinate facts would be upon the imaginations and desires of purchasers [here, other drivers], is to exact gifts that mankind does not possess."
The same concept protects drivers from vague speed laws, where speed limits, especially at speed traps, suddenly change without notice. For example, in the writer's own area, there is a 45 mph sign, followed a few feet later, by a 35 mph sign! shortly thereafter, followed by another 45 mph sign!
Don't feel that the old precedents cited here rejecting the general safety law, the so-called basic speed limit, drive safely, are just that, old. No, the concept of striking down the general vague rules is still alive and well and being used. That concept was used as recently as in
State of Montana v Stanko, Case No. 97-486; 1998 MT 321; 292 Mont 192; 974 P2d 1132 (23 Dec 1998) (declaring the basic speed law vague and thus unconstitutional);
State of Montana v Stanko, Case No. 98-049, 1998 MT 324N (24 Dec 1998); and
State of Montana v Leuchtman, Case No. 97-134. 1998 MT 325N (30 Dec 1998) (giving the benefit of the Stanko decision to the next litigant on the same issue). Note that the officer did not even pretend to
be following the law's criteria on factors such as vehicle condition. This is an obvious violation of one's oath of office,
to respect the constitution and laws, not flout them.
VI. INVENTED NUMBERS ARE UNCONSTITUTIONAL
Legislators do include some uneducated, evil, sadistic, and malicious people. Since the early vague speed-related laws were struck down, legislators have resolved on a different approach. We'll call it the Galileo approach. Invent a law that says the earth is flat! Invent a law that is not consistent with nature. Invent a number! Throw darts at a board, and say "that's the speed limit!!" Amazingly, all the darts seem to end on numbers ending with a 0 or a 5!! Call this "reasonable" (a word in law to be distinguished from "scientifically accurate"). As the range of numbers in nature is different than that, the arbitrary and capricious invented numbers are thus unconstitutional on their face! The Galileo defense.
In Montana, when its unconstitutional system was repeatedly struck down in court, the legislators did the right thing, decided to stop passing unconstitutional laws. . . . . In your dreams! . . . . . . No, not a chance of that! Instead they passed a new law, an invented number. And in Nevada recently, when the speed limit issue came up, a bill was snuck through in the last hours of the adjourning Legislature, setting a non-fact-based invented number. Legislator "universal malice" and unconstitutionality still rule!
Understand that it is "reasonable" for politicians to vote to declare the earth flat.
It is just not scientifically correct.
Politicians voting to declare the earth flat is "reasonable" inasmuch as in any particular place, many places on the planet, it has that appearance, and calling it flat "works." For many practical purposes, "flat" is "reasonable." But recognize, that "reasonable" is incompetent and malicious, far too low a standard, allowing for what in science is in fact gross error.
The old flat earth argument against the round earth notion is still, to the uninformed, "reasonable." The round earth argument says the earth is about 24,000 miles around at the equator. The day is 24 hours long. Round earth advocates are claiming the earth is spinning 1,000 mph.
|Data on Montana's last 12 months WITHOUT a speed limit contrasted with its first full year of experience WITH a speed limit shows that fatalities more than doubled on rural interstates and increased on rural primary highways. This data contradicts state officials' claims that speed limits, higher fines, and more enforcement would lower traffic deaths.|
Said the flat earth advocates in rebuttal, 'the wind from that high a speed air blast would knock us all down. We find no such wind in nature. Wherefore the round earth advocates are in error. The earth IS flat!!'
And, 'if you drop something, it lands beside you, not some distance significantly behind you! So there is no such motion as round-earthers allege.'
Naturally, these arguments were, at the time, persuasive, in showing the "reasonableness" of the flat earth notion.
Some might say, since the time of Galileo and others showing the earth to be not flat, legislators, city councils, officials have gotten more sensible. Human nature among officials has magically changed. Officials are all now scientists, have a Sc.D. degree, and ALL without exception adhere rigorously, solely, and exclusively to what is scientifically determined, and that only.
Oh, is that so? You offer a rebuttal, it is untrue and foolish to think that politicans all have science degrees! and adhere strictly to science facts.
Is it really true that legislators don't just invent numbers!! Sadly, you'd be right. Nothing has changed since the Galileo case, and his investigation and observations of Nature.
Politicians still invent things, especially speed numbers, invariably slow! and stop signs where no stopping is needed. (The better approach is having roundabouts (details), but these are oft obstructed for years, decades!)
Let's do like Galileo, like scientists, let's look at nature. Let's look at a few speeds occurring in nature.
EXAMPLES FROM NATURE
(Kilometers Per Second/Hour)
Source: Hartman, William K., and Chris Impev,
Astronomy: The Cosmic Journey, 5th ed
(Belmont, CA: Wadsworth Pub Co, 1994), p 665
"These motions are in different directions
and must be added together in three dimensions."
Conversion of Kilometers to Miles Per Hour
Planet Earth is the third fastest planet! In this example from nature, we see that even the slowest speed (Pluto's 10,620 mph, mere rocket level!) is nonetheless moving!! Fabrications about how slow we riders on Earth must go, are contrary to nature.
(Mean Miles Per Second/Hour)
Source: Rand McNally World Atlas (Chicago: 1965), page xxiii
Politician fabrications contrary to medical, engineering or scientific fact do occur, and are regularly attempted in court. So there is a long line of anti-"junk science" case law on that subject:
U.S. v Amaral, 488 F2d 1148 (CA 3, 1973)
Richardson v Richardson v Richardson-Merrill, Inc, 273 US App DC 32; 857 F2d 823 (1988)
Christophersen v Allied-Signal Corp, 939 F2d 1106 (CA 5, 1991)
Brock v Merrell J. Dow Pharmaceuticals, Inc, 874 F2d 307 (CA 5, 1989)
eventually reaching the Supreme Court, Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (28 June 1993).
In order to allow scientific evidence in support of a litigant, a judge must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist, or worse, a mere layman. As Judge Kozinski has emphasized in his opinion on remand from the Supreme Court's decision in Daubert, it is a daunting task for judges who do not have a scientific background (and most do not) to decide whether a scientist's testimony is real science or not. 43 F3d 1311, 1315-16 (CA 9, 1995).
The Supreme Court in Daubert told judges to distinguish between real and courtroom science. This is not an impossible requirement, e.g., to discover the essence of "science," if there is such an essence. The object, instead while conceding the uncertainty concerning the reach of the majority opinion discussed in the Chief Justice's separate opinion, 113 S Ct at 2799, was to make sure that when scientists testify in court, they adhere to the same standards of intellectual rigor that are demanded in their professional work. Cf. 113 S Ct at 2796-97; O'Conner v Commonwealth Edison Co, 13 F3d 1090, 1106-07 (CA 7, 1994).
If they do so adhere, their evidence (provided of course that it is relevant to some issue in the case) is admissible even if the particular methods they have used in arriving at their opinion are not yet accepted as canonical in their branch of the scientific community. If they do not, their evidence is inadmissible no matter how imposing their credentials. Regarding this test, "an expert who supplies nothing but a bottom line supplies nothing of value to the judicial process. . . . [you] would not accept from . . . students or those who submit papers to [a professional] journal an essay containing neither facts nor reasons; why should a court rely on the sort of exposition the scholar would not tolerate in his professional life?" Mid-State Fertilizer Co v Exchange National Bank, 877 F2d 1333, 1339 (CA 7, 1989).
The Constitution requires that laws be fact-based. A non-fact-based law violates due process. Why? Due process includes the notion that, on science, medince, and engineering and such type issues, only facts will be presented in court, not myth, not speculation.
Speed limits, and many traffic control devices and signs, are arbitrary fictions. There are no studies
determining average speeds of motorists in the area
the amount of deterrence that occurs when motorists observe a motorist stopped for speeding, i.e., duration of any deterrent effect (assuming arguendo that motorists slow down when seeing such, how many minutes or seconds thereafter is it before motorists resume their prior speed?)
nor trend analysis of whether speeding has increased or declined the past several years and/or is proportional to enforcement.
Speed limits are not even set by averages of what motorists in fact do, a lay speculation of—"they do it, so it is safe." You may have heard of the 85th percentile concept. That is a type of this fiction ("what people do, is ok"). And worse, the percentile concept intentionally criminalizes 15% in advance, with premeditation to do so. But even that would be better than what the average "speed limit law" does—a pure fiction, an arbitrarily invented number, without even a pretense of following the 85th percentile concept. (One might also say against the 85th percentile concept that many people have been so bullied by the system that they drive slower than they otherwise would, thereby artificially depressing the numbers on which to base the 85th percentile.)
In fact, contrary to lay myth, the "85th percentile" is not even intended to apply to freeways (where there are no problems pre-identified via the below-detailed MUTCD criteria allowing freeway speed limits in the first place. The 85th percentile concept is only for non-freeeway roads! And as this paper argues, it is never applicable anywhere, anyway!
In fact, motorists are known to ignore speed limits, according to the RDU's reference to a "Federal Study on Effects Of Raising And Lowering Speed Limits" (posted at the RDU website). See also pertinent statistical data at the Michigan section of the National Motorists Association. However inarticulately, motorists in essence already recognize that speed limits are inherently (always) unconstitutional, i.e., non-fact-based.
A federal law,
23 USC § 101(a),
controls traffic enforcement on all federal and federally-funded highways. Pursuant to that law, there is a federal Manual for Uniform Traffic Control Devices (MUTCD)
(written by the Federal Highway Administration (HHS-10), 400 7th Street, SW., Washington, DC 20590). The MUTCD sets conditions precedent for traffic control. It bans the old politically-manipulated speed-limit setting system. Now engineering studies are required. The federal law requires states and local authorities to identify pre-existing problems, do valid engineering studies, and only impose that minimal amount of traffic control as solves the pre-identified problem, without causing any new problem nor safety impairment. To date, no traffic control on freeways is known to have been imposed pursuant to these MUTCD conditions precedent requirements.
One state, Navada, sued to get the MUTCD law struck down as unconstitutional. It lost. Requiring states to respect motorist rights is constitutional. See State of Nevada v Skinner, 884 F.2d 445 (CA 9, 1989) cert den, and the federal government brief in support of the constitutionality of the federal law. “Where a state statute conflicts with, or frustrates, federal law, the former must give way.” U.S. Const., Art. VI, cl. 2; Maryland v Louisiana, 451 US 725, 746 (1981).
Look in your state law for a law requiring compliance, for example, in California, this law. Apparently Michigan law (MCL § ____, MSA § _____) requires local jurisdictions to comply with the MUTCD, but many (or all) jurisdictions do not comply. The MUTCD guidance emphasizes the duty of law to be "fact-based." As in the civil rights era of the 1960's, some states are obeying the Constitutional due process requirement voluntarily. With others, a court order is needed. Such a court order would enjoin (ban) enforcement of the illegal speed limits.
See this California decision: "We hold that the [prosecutor], whenever radar is involved in the enforcement of a posted speed limit, must produce, in the courtroom, either the original traffic and engineering survey for the location of the citation or a certified copy of that survey which (1) was conducted within the five years preceding the alleged violation and (2) justifies the posted speed limit," and mere oral testimony alleging them is not adequate pursuant to "the presumption of a speed trap" says People v Earnest, 33 Cal App 4th Supp 18 (14 Feb 1995), in a secret decision. The court added, " the Legislature strongly disapproves of speed traps," citing People v Sullivan, 234 Cal App 3d 56, 58-59; 285 Cal Rptr 553 (1991).
The bottom line is that THE "speed limit," whatever that is, is an arbitrary invention and fiction, without any scientific, medical or engineering evidence. In fact, there is no "THE speed limit." They vary every few miles. That is why speed traps exist, taking advantage of sudden, fabricated variations. Nobody however "expert" exists to testify to establish the fabricated numbers. They vary wildly from jurisdiction to jurisdiction, and even within jurisdictions, whereas the U.S. Constitutution mandates due process worldwide for citizens in court. "Laws" with fabricated numbers -- varying repeatedly even within a jurisdiction -- are clearly unconstitutional.
Remember, politicians (nowadays, Congressmen and legislators) are NOT scientists and engineers, are not adhering to the scientific method of truth finding, and do not make their decisions based on science and engineering. Instead, they make them on political bases and biases. Such wildly-varying-among-themselves numbers lack any fact basis at all, much less, a professionally researched and verified one. Politicians do not not know of, read, much less, abide by, professional journal writings, nor even take professional under-oath testimony on the subject before they vote! The decision is wholly arbitrary and capricious. In that sense, nothing has changed since the time of Galileo, nor even since earlier this century, when they invented arbitrary and capricious general wording laws!
Enforcement is in essence the same old unconstitutional thing. Catching a speeder is on the order of being struck by lighting! The officer is following the old unconstitutional approach already rejected earlier this century. Of necessity, as violations of the arbitrary and capricious fabricated numbers are so rampant! People inherently have the sense to reject a nonsense number when they see it! That is one of the benefits of a free and open society such as ours.
Congress and Legislatures cannot constitutionally, for example, criminalize driving by the edge of the earth. Why not? Because factually (by engineering and scientific evidence), the earth is not flat. Such a "no driving by the edge" law would not be "fact-based," therefore it is on its face unconstitutional. (Judges are inherently aware of the fact the earth is not flat!! no evidence need be presented.) A 'no driving by the edge of the earth' law is unconstitutional, agreed? Fact basis is mandatory pursuant to due process requirements.
A rule (for example, a 35% rule in media context) cannot be simply invented or retained when challenged. It must be shown valid, or be struck down. Fox TV Station, Inc v FCC, Case No. 00-1222; _ US App DC _; 280 F3d 1027, 1034; 2002 US App LEXIS 2575; 30 Media L Rep 1705 (19 Feb 2002).
Auto manufacturers test for speed capabilities of cars. That is the issue. Whatever speed one is driving, that is what "can" be done. No law can say, contrary to that science and engineering fact, 'no it can't!" It just did! Once the actual abilities (their limits) of cars are known, the government refuses to honor those engineering findings of fact. The only "speed limit" in nature is the speed of light! What we see instead is that politicians pick a number out of a hat, or the smoke rings in a smoke-filled room (!), and say that number is law. The "posted" speed limit is thus "non-fact-based." It is simply a "made up" number. But then the Galileo defense applies!
And, following that logic (laws are unconstitutional if they are not fact based), over the years, various people have filed lawsuits on non-fact-based laws, for example, on other numerical limits. In those cases, the government had decreed some number as law: the requirement for ____ is X (a number). When the government could not prove X (the number) accurate from a science, engineering, or logic point of view, the law was struck down by the courts. When laws such as invented maximum numeric limits lack rational basis, e.g., 29 CFR § 1910.1000 (a voluminous set of "speed limits" for chemicals), they are invalid, and must be stricken. Industrial Union Department v American Petroleum Institute, 448 US 607; 100 S Ct 2844; 65 L Ed 2d 1010 (1980) (a maximum limit established without rational basis is invalid); and Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (1979) (a no smoking law that does not achieve its aim is unconstitutional). As 175,000,000 traffic tickets are issued each year in America, it is obvious on its face that the law is not achieving its professed safety goal!!
Alford is particularly relevant to speeding. It was a case concerning no-smoking sections. Politicians invented a fiction, here is a line. On this side, it is no-smoking; on that side, it is not. The fact is, smoke drifts. The magic line | does not work. Even children's experiments show this basic science fact. A standard child's science experiment is to take two colored liquids, and pour them into one bowl. See how they merge!! Politicians are not even as mentally alert on science as children!! So naturally, in Alford, the court struck down the ordinance as unconstitutional. It is sheer nonsense to say, on this side of the line / number, it is safe; on that side, it is not! There is no scientific evidence that that is so. It is pure fiction on the part of scientifically illiterate politicans, not even as well educated as children.
Michigan case law shows a proper balancing concern in this regard, analyzing jointly the twin concepts of vagueness and overbreadth, if "A conviction may have rested upon an unconstitutional basis, we are constrained to reverse and remand for new trial." People v Purifoy, 34 Mich App 318; 191 NW2d 63, 64 (1971).
The "void for vagueness doctrine" requires that a penal statute fail to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and involve a manner that encourages arbitrary and discriminatory enforcement. See Kolender v Lawson, 461 US 352, 357 (1983); Papachristou v City of Jackson, 405 US 156; 92 S Ct 839; 31 L Ed 2d 110 (1972); Gooding v Wilson, 405 US 518; 92 S Ct 1103; 31 L Ed 2d 408 (1972); and Grayned v City of Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972). In speed limit context, a vague rule such as the "basic rule" (drive safely) "impermissibly delegates the basic public policy of how fast is too fast on . . . highways to 'policemen, judges, and juries for resolution on an ad hoc and subjective basis.' Grayned, 408 US at 109; 92 S Ct at 2299; 33 L Ed 2d at 228, pursuant to the well-reasoned Montana Supreme Court decisions in State v Stanko, supra.
See also Kassel v Consolidated Freightways, 450 US 662; 101 S Ct 1309; 67 L Ed 2d 580 (1981)
rejecting the story that 55 feet double-trailer trucks are safer than 65 foot double-trailer trucks. The Iowa Legislature had simply invented the claim that the extra 10 foot length made all the difference! The Supreme Court struck down this invented number as an unconstitutional burden on interstate commerce.
VII. LAWS ARE VOID WHEN TOO VOLUMINOUS
It is a matter of judicial knowledge that, looking at the system as a whole, and at the reality of travel in this mobile society, that there are thousands of pages of traffic laws, and thousands of officers enforcing them, each with his own standard (generally the already unconsitutional-for-vagueness "safety" principle).
|A recent Readers' Digest magazine online survey found that 71% of respondents had “driven more than 20 m.p.h. over the speed limit or gone through a red light.” “Seventy-seven percent of men and 69% of women have put the pedal to the metal or run a red light. Says an Arkansas man, 'Speed limits are guidelines.' Besides, insists another man, 34, from Virginia, stopping speeders is all part of a plot: 'Perhaps the question should be posed to the government: Do you ever enforce laws simply to generate revenue?'—Nancy Kalish, “How Honest Are You?,” Reader's Digest 114-119 (January 2004), p 119.
When police do not issue large numbers of tickets to bring in large sums of revenue, local politicians react unfavorably. See for example, the article,
“Mount Clemens manager to curtail alleged police slowdown,” by Mitch Hotts, Macom Daily (15 December 2003). Note this statement: “'Trying to make police officers become revenue producers is not right. It's not their function in the world of law enforcement,' said James Tignanelli, president of the Police Officers Association of Michigan, the union for the police department.”
But there is a further aspect of the unconstitutionality. The sheer volume and complexity of rules has already received judicial notice in another context, in a Supreme Court decision. Note these pertinent words, "Vagueness of wording is aggravated by prolixity and profusion of statutes, regulations, and administrative machinery, and by manifold cross-references to interrelated enactments and rules," Keyishian v Board of Regents of U. of St. of N. Y., 385 US 603, 604; 87 S Ct 675, 684; 17 L Ed 2d 629 (1967).
The sheer volume and complexity of traffic rules renders them vague and overbroad. No jurisdiction even dares to command its own residents to READ the overwhelming volume of materials, much less to command all non-residents to stop whatever they are doing in commerce, and go read all the rules at each and every jurisdiction's office, plus, of course, the administrative guidance, formal and informal, plus the published and unpublished court decisions interpreting those rules, plus, of course, the actual reality in the "as applied" situation of what the individual officers on the scene may or may not deem a violation. Such a command (to stop and read the laws) would be stricken as a brazen unconstitutional obstruction of interstate commerce, in view of the mobility of the population.
We are part of a world-class area, a cosmopolitan area, with international travelers and ramifications. Imposing arbitrary and capricious standards contrary to nature (the Galileo issue) is clearly both counter-productive and unconstitutional. The Constitution was written to PROMOTE commerce, not obstruct it. In essence, by their sheer massive, unconstitutional volume, constituting both vagueness and overbreadth, the rules constitute a sweeping delegation of authority, an "Enabling Act," a sweeping delegation of authority, to every individual officer. Sweeping delegations of legislative power to the executive branch are unconstitutional, e.g., State ex rel. Makris v Superior Court, 113 Wash 296; 193 P 845; 12 ALR 1428 (1920); Taylor v Smith, 140 Va 217; 124 SE 259 (Va App, 1924); Ex parte Dickey, 76 W Va 576; 85 SE 781; LRA 1915F, 840 (W Va App, 1915); Hafield v Lundin, 98 Wash 657; 168 P 516; LRA 1918B, 909, Ann Cas 1918C, 942 (1917); and Thompson v Smith, Chief of Police, 155 Va 367; 154 SE 579; 71 ALR 604 (12 Sep 1930).
Under such circumstances, sweeping delegations to individuals with differing standards, conduct legal in one jurisdiction, driving at any given speed in any given type of area (industrial, residential, rural), may be deemed illegal elsewhere, or, in the same jurisdiction, by different officiers with their varying standards pursuant to the extreme range of "enabling" occurring in reality. "This lack of specificity "enourages arbitrary and erratic arrests . . . by delegating to police officers the determination of who must be able to produce what type of identification," People v DeFillippo, 80 Mich App 197; 262 NW2d 921, 923 (1977). Significantly, it included the above-referenced 1889 analysis:
What our Michigan Supreme Court is saying that, arbitrary fabricated numbers are forbidden as safety is not demonstrably involved. It forbids writing rules omitting safety ("welfare"). Unless safety ("welfare") is involved, government, stay out. In light of the subsequent case law rejecting as unconstitutional vague safety traffic rules, the combination of case law precludes any numerics. This analysis has an additional benefit, promotion of judicial economy, and reducing the burden on the taxpayers (fewer magistrates, police officers needed, system-wide).
Here is the line: | On this side, it is safe, on that side it is not. If that legislative body claim is false, as it is with smoking sections, chemical numbers, and speed limits, the rule is void. And the courts must strike it down. See Alford, supra.
Of course, due process requires that to defend oneself, those persons supposedly endangered must be identified, in advance, so they can cross-examined. Mattox v U.S., 156 US 237, 242-243; 15 S Ct 337; 39 L Ed 409 (1895) (rejecting depositions in lieu of personal examination) and Kirby v U.S., 174 US 47, 55; 19 S Ct 574; 43 L Ed 890 (1899) (in person testimony required).
As such, fabricated speed limits without scientific and engineering evidence are definitely unconstitutional. The Constitution requires due process, proof, evidence, prior to convicting somebody. There is no proof, no evidence, that some particular "posted" speed limit is actually correct as the "true" necessary maximum number. The Constitution says—prove it. Or there is no case. What the evidence actually shows is that the numbers are simply made up, like the hallucinations of an alcoholic with delirium tremens seeing pink elephants -- so to speak. One easy proof that speed limit numbers are made up, is the fact they are repeatedly being changed, and vary wildly between jurisdictions, and all end in 0's and 5's, grossly contrary to nature. The Galileo defense again.
If the issue is safety, there are legitimate tests of PEOPLE to determine people's driving ability. Such exams have been, I understand, tested in Maryland, Pennsylvania, and California. The test examines the ability to process new information. Amidst distractions, moving vehicles are shown on the screen. The test checks for ability to identify their location. This is the way to prevent accidents, test drivers -- not the outrage of unconstitutional speed limits. Speed limits exist only to extort money from the non-resistant members of the public. Those who fight tickets, pay less. Meaning: those who don't insist on their rights, lose them.
Speed limits kill. They kill on a "universal malice" basis. Studies have shown this fact as well. Obviously they kill. The are invented, contrary to nature, contrary to science, engineering, medicine. Words constituting inventions, fabrications, when death results, are themselves criminal. The Nurnberg Trial, 6 FRD 69 (1946) (conviction and execution of Julius Streicher for his words that led to deaths). For a genuine case, prosecute the lawmakers who fabricate the numbers, when death results. When police do not do that (do not arrest the officials), then other prosecutions (of the little people) are obviously selective, discriminatory prosecutions. (Of course, as The Nurnberg Trial shows, there is no defense by the enforcing officer who refuses to arrest corrupt lawmakers, just the little people, 'I was only following orders.')
VIII. SPEED LIMITS VIOLATE THE CONSTITUTIONAL "RIGHT TO TRAVEL"
Most people have heard of some of our constitutional rights, the right to freedom of speech, press, religion, vote, etc. But there is a also a lesser known right, but EQUAL in the eyes of the law to those we know, the constitutional "right to travel."
Americans' "freedom to travel throughout the United States has long been recognized as a basic right under the Constitution," according to multiple cases including Williams v Fears, 179 US 270, 274; 21 S Ct 128; 45 L Ed 186 (1900); Twining v New Jersey, 211 US 78, 97; 29 S Ct 14; 53 L Ed 97 (1908), as listed in the case of
United States v Guest, 383 US 745; 86 S Ct 1170; 16 L Ed 2d 239 (1968), a case involving criminally prosecuting people for obstructing the right (obstruction is a federal crime pursuant to federal criminal law 18 USC § 241).
The Supreme Court in Guest says of the "right to travel" that "Its explicit recognition as one of the federal rights protected by what is now 18 USC § 241 goes back at least as far as 1904. United States v Moore, 129 F 630, 633 [Circ Ct ND Ala, 1904]. We reaffirm it now." As we see, the Michigan Supreme Court had already recognized it in 1889, and Crandall v Nevada had alluded to the concept in 1867. The earliest known case working towards developing the concept was Smith v Turner, 48 US (7 Howard) 283; 48 L Ed 702 (1849) (a case sometimes cited in precedents as the "Passenger Cases," it involving quarantining them).
The Constitution protects our "liberty." Courts often cite the Fourteenth Amendment as specifically protecting our liberty. Case law shows that the "liberty" protected by the Fourteenth Amendment extends beyond freedom from bodily restraint and includes a much wider range of human activity, including but not limited to the opportunity to make a wide range of personal decisions concerning one's life, family, and private pursuits. See Meyer v Nebraska, 262 US 390, 399; 43 S Ct 625, 626; 67 L Ed 1043 (1923), and Roe v Wade, 410 US 113, 152-153; 93 S Ct 705, 726-727; 35 L Ed 2d 147 (1973). One of these life, family, private pursuits is obviously driving.
The problem being addressed here is that malicious politicians, pandering to base motives or special interests, have repeatedly assaulted and violated our "right to travel." Numerous cases uphold the constitutional "right to travel."
To avoid getting into the situation of "use it or lose it," let's review a number of them.
The "right to travel" is general. This paper is aiming at fabricated numbers imparing the "right to travel." We must start the numbers analysis in this context, therefore, at a tangent. Let's look at "easy" precedents wherein politicians had invented a number, in these cases, a number involving number of years one must be a resident to vote or hold elective office. Courts have been quite alert to fabricated numbers obstructing these rights. Let's look at a few such cases.
The case of Green v McKeon, 468 F2d 883 (CA 6, 1972), rejected inventing a number. The City of Plymouth, Michigan, invented the number “two” as the mandatory minimum of years a person must live in the City before being allowed to run for elective office.
It cited the above-referenced Supreme Court decision on “the exercise of the basic constitutional right to travel,”
Dunn v Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1974).
The pretext of the invented number was that that much time was needed “to become familiar with the local form of government and the problems peculiar to the municipality.” It reminded the malicious number-inventing politicians of the Dunn decision words, “Statutes affecting constitutional rights must be drawn with ‘precision,’ . . . and must be ‘tailored’ to serve their legitimate objectives.” The court pointed out that the arbitrary invented number “two” “permits a two year resident . . . to hold public office regardless of his lack of knowledge” while it “excludes more recent arrivals who have had experience in local government elsewhere or who have made diligent efforts to become well acquainted with the municipality.”’ So the court agreed with the lower court decision, 335 F Supp 630, in sricking down the politicians’ pretext for the invented number “two,” concluding that the invented number “two” “is too broad for the achievement of [the politicians’ professed] objective.”
The case of Tennesse Governor Dunn v Law Professor James Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1974). Blumstein was a newly appointed law professor. He wanted to vote. Tennessee politicians said, No, we have invented a one year state and 90 day county residency rule, to prove you know what you are doing. He offered to show he was competent. The politicians said no! The courts fortunately struck down the nonsense fabricated numbers. Amazingly, the professor offered the state the opportunity to test him to verify his competence, and the politicians refused. This parallels speeding situations; speeders typically offer to show that theyw ere in fact driving safely, and politicians typically refuse to consider that offer. (If you have such a case, include in your presentation an offer to show you were driving safely.) The offer will help show that the speed limit is malicious, intended for evil, not for a safety purpose, hence obviously unconstitutional.
The case of Bolanowski v Raich, 330 F Supp 724 (ED Mich, 1971), rejected inventing a number. The City of Warren, Michigan, invented the number “three” as the mandatory minimum of years a person must live in the City before being allowed to run for the office of Mayor. The pretext of the invented number was that that much time was needed “to understand the local problems, know the people of the community and [foster awareness of his] reputation and character.” Bolanowski said the invented number “is not finely enough tailored to serve the purpose claimed.” The Court agreed. It struck down the invented number as unconstitutional. It pointed out that some lifelong residents can have never been “taking any interest whatsoever in municipal problems,” whereas others, short-time, can have “gathered sufficient information to be able to have a good understanding.”
Likewise with speed limits, higher speeds can promote safety, while lower speeds can actually involve an increased death rate. Experience with the recently increased speed limits has shown this exact effect to be occurring. This confirms the inherent unconstitutionality of speed limits, not “finely tailored” to achieve the purported purpose. As they do not achieve the stated purpose, and cannot, they are inherently (meaning, always) unconstitutional.
Other court precedents also strike down invented numbers. (If this list of case gets burdensome, remember, the reason is that there have been a lot of malicious politicians with base motives, who passed the laws, that those on the receiving end of politicians' malice, had to defend us all from: More anti-fabricated number cases: Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969) (public assistance benefits); King v New Rochelle Municipal Housing Authority, 442 F2d 646 (CA 2) cert den 404 US 863; 92 S Ct 113; 30 L Ed 2d 107 (1971) (public housing); Keenan v Board of Law Examiners, 317 F Supp 1350 (ED NC, 1970) (3-judge court, issue of admission to the bar); Vaughan v Bower, 313 F Supp 37 (Arizona, 3-judge court) aff'd mem 400 US 884; 91 S Ct 139; 27 L Ed 2d 129 (1970) (medical aid). Politicians with base motives often like to attack the "right to travel," people who are poor and need welfare benefits, housing benefits, or medical help. Attacking the "right to travel" via invented, fabricated "speed limits" is just another aspect of base motives of politicians.
Shapiro v Thompson, 394 US 618 (1969), establishes that laws that interfere with "fundamental rights" are "suspect" and demand "close scrutiny" by courts. Laws cannot simply be passed on whimsy, but there must be a "compelling state interest." Any law that would "chill" exercising a right is "patently unconstitutional." It is a well-established right of the people
|"Personal liberty, which is guaranteed to every citizen under our constitution and laws, consists of the right to locomotion,—to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. . . .
"Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees." Pinkerton v Verberg, 78 Mich 573, 584; 44 NW 579, 582-583 (1889).
Here's an example of how the traffic code, via its speed limits, or other unscientific commands, can kill you. The doctor is rushing to the hospital to aid a patient in desperate need of TIMELY medical attention. The doctor is speeding, not stopping for unscientific traffic control devices' demands. Yet, the "universal malice" speed limit, traffic sign, wants him to aid in killing the patient, by going slow, or even stopping, no traffic coming!. Police (in a "universal malice" act) will stop him, obstruct him (the doctor) from helping the patient, let's say it is you. And you die--thanks to the unconstitutional traffic control devices.
Or, two people are together. One is severely cut, bleeding badly, needs TIMELY medical aid. Minutes, seconds, count. Your friend speeds, doesn't stop unnecessarily at unscientific stop signs, to save your life. But some self-righteous, malicious, traffic-law enforcer in a universal malice" act, stops your friend, and you bleed to death.
Political fabricated speed limits, stop signs, unscientific traffic control devices, can, and do, kill, "universal malice" style.
"If you drive 100% legally you statistically increase your chances of getting in or causing an accident."—A quote from the RDU website.
In effect, as per the Supreme Court decision in the case of Crandall v Nevada, 73 US 35; 18 L Ed (1867), speed limits and other traffic control devices, being non-fact-based, are simply an unlawful tax or impost on travel, and thus unconstitutional for the reason cited in Crandall. (Crandall involved a tax on travelers! which is what in essence speed limits, unscientific stop signs, etc., simply are, stripped of all the phony fraudulent politician folderol pretending them to relate somehow to safety, not to mention that are extortion violating the federal anti-racketeering act (RICO), 18 USC § 1961 and the law against obstructing federal rights, 18 USC § 241).
|"to be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrain this movement."|
IX. EVEN ASSUMING ARGUENDO THE LAW TO BE CONSTITUTIONAL,
THE METHODOLOGY OF ENFORCEMENT MUST ITSELF BE CONSTITUTIONAL
The Michigan Court of Appeals in People v Ferency, 133 Mich App 526; 351 NW2d 225 (1984) (a narrowly framed case in which these constitutional issues were not cited) ruled that, in order to avoid any violation of due process rights of a defendant in a speeding case involving "moving" radar, seven guidelines must be met in order to allow into evidence speed readings from a radar speed measurement device:
1. The officer operating the device has adequate training and experience in its operation.
2. The radar device was in proper working condition and properly installed in the patrol vehicle at the time of the issuance of the citation.
3. The radar device was used in an area where road conditions are such that there is a minimum possibility of distortion (to prevent spurious readings).
4. The input speed of the patrol vehicle was verified. This also means that the speedometer of the patrol vehicle was independently calibrated.
5. The speedmeter (radar) is retested at the end of the shift in the same manner that it was tested prior to the shift and that the speedmeter (radar) be serviced by the manufacturer or other professional as recommended.
6. The radar operator is able to establish that the target vehicle was within the operational area of the beam at the time the reading was displayed.
7. The particular unit has been certified for use by an agency with some demonstrable expertise in the area.
Although the Michigan Court of Appeals ruling in People v Ferency deals with the adjudication of a case involving traffic radar, the Michigan Speed Measurement Task Force is of the opinion that the principal recommendations set forth in that ruling can be applied to cases involving laser speed measurement devices. The interim guidelines for adjudicating speeding cases involving laser speed measurement devices that have been developed by the Michigan Speed Measurement Task Force reflect this opinion:
1. The officer operating the laser speed measurement device must have adequate training and experience.
2. The particular laser device must have been certified for use in Michigan by the Michigan Speed Measurement Task Force.
3. The laser device must be verified in the same manner at the beginning and end of the shift to ensure that it is in proper working condition, and the device must be serviced by the manufacturer or other professional as recommended.
4. The officer using the laser device must be able to testify that a down-the-road speed reading was obtained at a distance that was within the operational range of the device.
5. The target vehicle must be properly identified.
6. The laser device must be in proper working condition at the time the speed measurement reading is obtained. Additionally, across-the-road laser devices must be properly positioned and aligned.
X. OFFICERS THEMSELVES SPEED
Police officers themselves regularly exceed speed limits, for various purposes including to catch suspected speeders!! Wherefore, speed limit laws and enforcement prima facie do not in fact have an engineering and scientific basis, and hence, by definition, speeding per se cannot be shown to be unsafe. Obviously, enforcement by speeders themselves cannot in fact serve as a deterrent to others' speeding. Police in essence drive the same, or at higher speeds, than motorists themselves. The public reaction, as shown by 175,000,000 tickets is not, 'I'm so deterred,' but, 'hypocrites.' The unequal enforcement of the law, exempting themselves, violates the constitutional concept of "equal protection of the laws." Their attitude of disdain for the rule of law is especially clear when they
practice law without a license.
Federal law 18 USC § 241 bans obstructing federal rights, which includes the "right to travel," as per the long line of case law above cited. Federal law 18 USC § 1961 bans engaging in a pattern of crime. When state and local officials in essence extort money, they are committing federal felonies and are in essence "racketeers" as per the law. You may have heard of "forfeiture laws," taking the fruit of one's unlawfully earned income (including one's house). Here, in what is widespread extortion, is an excellent place for such action to occur. It would help deter the making of extortionate arrests, especially when there is not even the pretense of complying with the law's criteria, e.g., vehicle condition, as in the Montana cases above cited.
Here is the real history of why laws came to be passed creating new crimes:
Bottom line: Criminal laws were invented not to protect people, but rather to increase monarchy's government power and revenue! Too bad we are not routinely taught this facet of history! and so have lost that past awareness. The Founding Fathers got rid of the king, but not his system!
XI. STATUTORY PRESUMPTIONS ARE UNCONSTITUTIONAL UNLESS THE
|[One] important factor [in the government deciding to begin defining crimes] was . . . to build up a strong central government. Acts [previously legal] became crimes. As the king [government] became more powerful, legislation against private crime increased and after the Norman conquest [of England, 1066] a distinct body of criminal law evolved for the first time.
. . .
As part of his policy of strengthening the central government, Henry II (1154-89) established the system [leading to modern] judges.
[In the] reign of Henry VII . . . a strong central government [did] emerge . . . reflected by a great increase in the types of crimes against which legislation was passed. . . .
Under the Stuarts, the need to raise money for the crown led to new crimes being defined."—"Crime," Encyclopædia Britannica, Vol 6, pp 754-758 (this quote, pp 756-757) (1963).
ULTIMATE FACT CONCLUDED IS "AT LEAST MORE LIKELY THAN NOT"
Speed limits are based upon statutory presumptions (by uneducated often corrupt or racist legislators who took no testimony or evidence before voting) that a higher number than they said, means that you are driving unsafely. Speed limits are of course unconstitutional unless they promote safety.
As the voluminous case law herein contained shows, even that general principle (safety) is unconstitutional as in essence, providing no notice in advance of what is to be later deemed unlawful.
So we are left with a presumption isue. This is a Fifth Amendment issue. Driving in excess of some arbitrarily defined number is PRESUMED to be unsafe. Constitutionally, that is an irrational conclusion.
As it happens, there have been a number of constitutional cases on the issue of presumptions. The bottom line is that the Constitution mandates that to be constitutional, a presumption must be at least more likely than not true.
Constitutionally, "a criminal statutory presumption must be regarded as `irrational' or `arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Leary v United States, 395 US 6, 36; 89 S Ct 1532; 23 L Ed 2d 57 (1966) (holding invalid a statutory presumption that person found possessing marijuana had also imported the same).
To provide due process, in other words, there must be at least a "rational connection between the fact proved and the ultimate fact presumed" - a connection grounded in "common experience." Tot v United States, 319 US 463, 467-468; 63 S Ct 1241; 87 L Ed 1519 (1943). See also similar analyses in United States v Romano, 382 US 136; 86 S Ct 279; 15 L Ed 2d 210 (1965) (invalidating a presumption that mere presence at an illegal still constituted possession, custody, or control of the same, and citing a line of such cases at footnote 6 back to 1910); and Ulster County Court v Allen, 442 US 140; 99 S Ct 2213; 60 L Ed 2d 777 (1979).
Constitutionally, "a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed." Tot v United States, 319 US 463, 467; 63 S.Ct. 1241, 1245, 87 L.Ed.2d 1519 (1943).
The charge against you is not evidence. Charges are ex parte and do not support the presumption. See Jim Crockett Promotion, Inc v City of Charlotte, 706 F2d 486, 490-491 (CA 4, 1983) (the accusation was that the sound being made was "unnecessary" and above what was allowed; allegations that something is above some maximum are not sufficient to support a presumption!)
|"Personal liberty . . . consists of the right to locomotion,—to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. . . . Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees." Pinkerton v Verberg, 78 Mich 573, 584; 44 NW 579, 582-583 (1889).|
The refutation of the presumption is obvious on its face. Clearly, you, not some politician or officer, are the judge of whether your speed was "necessary"! Moreover, there are (against you) no complaining witnesses, who supposedly reported your speeding to the police, then a subsequent police investigation. Instead, there is only the police, the only "crime" commonly handled sua sponte as speed limits derive from corruption and racism, not genuine concern for public safety. Obviously, tens, even hundreds of millions of people, drive above the limit hourly, daily. Catching a "speeder" is on the order of being struck by lightning. The public clearly does not deem the law of sufficient credibility to file complaints that you personally were speeding! The public daily deems the law "irrational," in the millions and tens of millions. There is nothing in the record, nor any testimony, that driving above the limit makes it "more likely than not" that the speed was unsafe.
But supposing that there were a private complainant. Cross-examine him or her!! If any witnesses appear to attempt to rebut your affidavit or testimony that you were driving safely, they clearly cannot offer any testimony (lay or expert) to the contrary, nor any professional studies, nor have any such data present to file as an exhibit in court.
Another obvious issue arises. If the allegation is attempted to be raised that you were endangering safety, the obvious question is: "whose?" Demand names, addresses, prior-to-trial statements! You have a constitutional right (Sixth Amendment) to confront the witnesses against you and cross-examine them on all aspects, including the nature, degree, duration, intensity, scope, and prevalence of supposed endangerment!! Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974).
Be confident. There are no private witnesses against you. The law is corrupt and corrupt only. It has no credibility, so there are no private witnesses against you, as nobody complained about your speed!
XII. SIGNS MUST BE PROPERLY POSTED TO BE VALID.
A federal law,
23 USC § 101(a),
controls traffic enforcement on all federal and federally-funded highways. Pursuant to that law, there is a federal Manual for Uniform Traffic Control Devices (MUTCD). The MUTCD sets conditions precedent for traffic control. It bans the old politically-manipulated speed-limit setting system. Now engineering studies are required. The federal law requires states and local authorities to identify pre-existing problems, do valid engineering studies, and only impose that minimal amount of traffic control as solves the pre-identified problem, without causing any new problem nor safety impairment. To date, no traffic control on freeways is known to have been imposed pursuant to these MUTCD conditions precedent requirements.
Look in your state law for a law requiring compliance, for example, in California, this law. Apparently Michigan law (MCL § ____, MSA § _____) requires local jurisdictions to comply with the MUTCD, but many (or all) jurisdictions do not comply. The MUTCD guidance emphasizes the duty of law to be "fact-based." As in the civil rights era of the 1960's, some states are obeying the Constitutional due process requirement voluntarily. With others, a court order is needed. Such a court order would enjoin (ban) enforcement of the illegal Traffic Control Devices, e.g., speed limits, stop signs, etc., installed without first obtaining an engineer's warrant. That can only be issued after a proper study has been done.
The bottom line is that THE average "speed limit," whatever that is, or the average "stop sign," is an arbitrary invention and fiction, without any scientific, medical or engineering evidence. In fact, there is no "THE speed limit," and rarely genuine need for a "stop" sign as distinct from a "yield" sign.
Note that speed limits vary every few miles. "Stop" and "yield" signs are intermingled without rhyme or reason.
Such facts explain how scams such as speed traps exist, taking advantage of sudden, fabricated variations. Nobody however "expert" exists to testify to establish the fabricated numbers and signs. They vary wildly from jurisdiction to jurisdiction, and even within jurisdictions, whereas the U.S. Constitutution mandates due process worldwide for citizens in court. "Laws" with fabricated numbers -- varying repeatedly even within a jurisdiction -- are clearly unconstitutional.
To be valid signs, signs must themselves follow the law! Their are, for example, size and height requirements for signs. For example, regulatory signs must generally be at least five feet above the surface, and generally be 12, 18, or 24 inches wide, and 24 or 30 inches tall, depending on type.
What happens if a sign is not legally designed or posted? Answer: the court can strike down the allegation of your non-compliance.
Below is an excerpt of a court decision doing just that. Note that the sign had not been posted as per the law:
|"Neither general experience nor reason nor common sense . . . suggest that merely because three persons plus a police officer complain (not testify, merely complain) that certain noise was 'loud' or 'disturbing' warrants an inference or presumption by a jury that their untested complaints amount to 'prima facie evidence' that the noise was 'loud' or 'disturbing.'
"A 'complaint' is no more than a charge, made ex parte, without any opportunity by a defendant to confront the person making the 'complaint' or giving the 'information' or to test by cross-examination the validity of such 'complaint.' At best, it could have no greater stature than an arrest warrant or perhaps an indictment, both of which proceed ex parte.
"Neither the arrest warrant nor the indictment has such standing as to support prima facie evidence or presumption of guilt to impose on a defendant the burden either of persuasion or production. Similarly, we do not think 'complaints,' whether from one or four complainants, can be deemed prima facie evidence of wrongful conduct or be given the stature of a presumption imposing any burden of persuasion or of proof on a defendant."
XIII. YOU MUST BE PROPERLY NOTIFIED BEFORE PLEADING
Before a person can constitutionally plead guilty, the accused must be properly informed of the charge and elements. Constitutionally, aspects of a criminal case require a defendant's knowing participation. To be valid, a guilty plea must be voluntarily made with full knowledge of its implications. Henderson v Morgan, 426 US 637; 96 S Ct 2253; 49 L Ed 2d 108 (1976) (case involving defendant not informed of the "intent" element of the crime of which accused).
Henderson relies on even older case law to show that his "plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.'" Smith v O'Grady, 312 U.S. 329, 334; 61 S Ct 572, 574; 85 L Ed 859 (1941). In law, "a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." McCarthy v United States, 394 US 459; 89 S Ct 1166; 22 L Ed 2d 418 (1969).
A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving, see, e. g., Johnson v Zerbst, 304 U.S. 458, 464-465; 58 S Ct 1019; 82 L Ed 1461 (1938), or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense. Smith v O'Grady, 312 U.S. 329, supra.
Here, as the speed limit is unconstitutional, not fact-based, etc., it is inherently defective. No plea can be voluntary in the sense of constituting an intelligent admission. Clearly, nobody in the criminal justice system has informed you of the elements required to secure a conviction. They have most certainly not informed you of your constitutional protections. Instead, maliciously, they count on your NOT being informed; on committing fraud against you by deceiving you as to same. This violates due process.
In order to keep you uniformed and deceived, they typically do not provide you an attorney. So ask for one. In writing. When refused one, likely applying Gideon v Wainwright, 372 US 335; 83 S Ct 795; 9 L Ed 2d 799 (1963), pretending that the right-to-counsel only applies to felony cases, appeal. These issues of constitutionality are such that a lawyer is of the value described herein, in aiding you in making and refining these arguments. It is outrageous that laymen should have to be making these constitutional arguments pro se, without counsel.
You have a Sixth Amendment right to an attorney. This constitutional mandate has been followed in the federal system since 1789! See 1 Stat 73, 92 (1789); 1 Stat 112, 118 (118 (1790), now 18 USC § 563.
You have a right to being properly informed, even if you learn of the right long after. The Henderson case was eleven (11) years after the initial incidents!
For those reading this material 'too late,' i.e., after your case has already started: You should ask for an attorney even if you failed to ask for one up front. The mere failure of a defendant to request counsel is not, constitutionally, a waiver of the right, Brewer v Williams, 430 US 387, 404; 97 S Ct 1232, 1242; 51 L Ed 2d 424 (1977).
The Supreme Court long ago (1938) explained the urgent need for the right to an attorney:
Johnson v Zerbst, 304 US 458, 465-468, supra, involved a conviction in civil court (a process similar to traffic court); Johnson was not provided a lawyer. Said the Supreme Court in overturning the conviction:
|``The single issue on appeal is whether a local municipality's posted speed limit sign is unenforceable because it fails to comply with the minimum height requirements set forth in the Uniform Traffic Control Devices Manual. The trial court concluded that the manual's minimum height requirement is mandatory in order for the local posted speed limit to be enforceable. This court agrees.
"The statutory scheme is very simple. If a local authority such as the DNR wants to impose a speed restriction, it must post a speed limit sign that is both sufficiently legible to be seen by an ordinarily observant person and in a proper position. The fact that the legislature specifically joined the two requirements in Wis. Stat. § 346.02(7) with the conjunction "and" demonstrates that there are two distinct requirements to be met.
"Because it is undisputed that the signs were not in a proper position as required under the Manual's minimum height requirements, the posted speed limit was unenforceable. Therefore, the trial court had no alternative but to dismiss the citation.''--State v. Kay H. Dawson, Case No. 00-3355-FT; 2001 WI App 146; 630 NW2d 277 (Wis App, 1 May 2001)
While the Supreme Court did not say so explicitly, it is obvious that such travesties cannot occur unless the system includes a vast number of corrupt and malicious prosecutors and judges. In the traffic system, with 175,000,000 annual cases, the magnitude of the corruption is obvious, and clearly, beyond all doubt, not just beyond reasonable doubt, keeping tens of millions uninformed of the constitutional criteria for valid convictions.
XIV. THE RIGHT TO JURY TRIAL
The federal Constitution, the Sixth Amendment, guarantees the right to jury trial "in all criminal prosecutions." States have a record of trying to undermine this right two ways: (a) by banning jury trials in some criminal prosecutions, and (b) by cutting jury size down from twelve to six. Such obstruction of the right to jury trial is supposed to be unconstitutional, as the Fourteenth Amendment requires states to honor our federal constitutional rights.
Unfortunately, the courts have been allowing states to violate the Sixth Amendment. See cases including the following
|". . . The Sixth Amendment . . . embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty. . . . The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel. . . . compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty. [Unless obeyed], the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty."
See also Powell v Alabama, 287 US 45, 68-69; 53 S Ct 55; 77 L Ed 158 (1932): "Left without the aid of counsel [the accused] may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to propare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he is not guilty, he faces the danger of conviction because he does not know how to establish his innocence."
|Patton v United States, 281 US 276, 288; 50 S Ct 253; 74 L Ed 854 (1930)|
|Duncan v Louisiana, 391 US 145, 149; 88 S Ct 1444; 20 L Ed 2d 491 (1968)|
|Baldwin v New York, 399 US 66; 90 S Ct 1886; 26 L Ed 2d 437 (1970)|
(upholding jury trial ban if penalty is under six months in prison).
The National Motorists Association opposes this abolition of jury trial rights. See its analysis of the Sixth Amendment: "Do you see anything in here that says this right doesn't apply unless the crime can result in six months or more in jail? Me neither.” Jury trials "are . . . the most important bastion for the protection of individual rights." How did the ban on jury trials come about? "When the U.S. Supreme Court [on behalf of states] could not get the interpretation it [they] wanted from the actual words in the Sixth Amendment, it chose to do a historial review [the Confederate approach] of the circumstances prior to the drafting of the U.S. Constitution. Sure enough, it found instances where, under English common law, persons could be tried for minor crimes without access to a jury trial. That the drafters of the Constitution were obviously aware of this practice and chose to obliterate it by granting jury trials to anyone charged with a crime, as a constitutional right, did not phase the [Supreme Court judges]. This knoweledge didn't fit their agenda, i.e., reducing access to to jury trials for criminal defendants." —President James Baxter, "The Courts Have Lost Their Way," 16 National Motorists Association Foundation News (#5) 2 (Sep/Oct 2005).
Even if "common law" trials in England could have been without a jury, that would not be a precedent for crimes defined instead by statute, e.g., traffic violations
In the Wisconsin case, the court's claim was "that if a crime or violation did not exist when the  constitution was drafted, constitutional protections do not apply. The argument goes like this: since motor vehicle speeding tickets did not exist in , the constitutional right to a jury trial does not apply."—President James Baxter, "Wisconsin Supreme Court Rules," 16 National Motorists Association Foundation News (#5) 4 (Sep/Oct 2005). (Unfortunately, the motorist did not help his own case, by telling the lower courts he didn't want them to even decide the matter; he only wanted a decision by the Wisconsin Supreme Court. Asking a judge not to decide, that's an error to never make! Instead ask for a full and correct decision. If an alleged higher court precedent would supposedly constrain your judge, you may cite the precedent of Wuebker v James, 58 NYS2d 671, 677 (1944), showing that the oath of office is to the Constitution, not to a higher court interpretation. The judge's duty is to do right. Period.)
The narrow approach of word meaning limited to the 1848 definition, that Wisconsin's Supreme Court alleged to attack the right to jury trial, is an approach
|Dane County v McGrew, 272 Wis 2d 856; 679 NW2d 927; 2005 WI 130 (19 July 2005)|
(jury trial ban upheld on the excuse that the Constituion is old (1848)!
Honest, rational judges know that a Cosntitution is intended, designed, made, devised, written to be a perpetual document; and that its wording is made to cover subsequent matters, whether new religions, subjects, newspapers, or crimes. The rights the Constitution sets up are intended and designed to be perpetual, permanent, not limited to only those on the date of ratification.
XV. ADJUDICATORS MUST BE IMPARTIAL
Cases have arisen due to the lack of impartiality of judges, for example, Tumey v Ohio, 273 US 510; 47 S Ct 437; 71 L Ed 749 (1927) and Ward v Village of Monroeville, 409 US 57, 60 (1972). The Supreme Court took notice of the high percentage of city revenue derived from traffic offenses.
they know is wrong, and
one they dare not use to eliminate, for example, freedom of religion (no churches allowed except those in 1848); freedom of speech (no subjects allowed except those of that era); freedom of the press (no newspapers allowed except those that existed then)!
When fines constitute a substantial portion of a jurisdiction's revenues, the "possible temptation" to convict the innocent "may . . . exist when the [adjudicator's] executive responsibility for village finances may make him partisan to maintain the high level of contributions from the mayor's office." Ward, supra, 409 US 57, 60.
This issue also implicates due process. The ticket-issuing-jurisdiction budget presumes traffic offense revenue, in essence, inherently violating due process, as the number of judge positions is accordingly increased. Offering a job is a classic method of improper influence, here, the creating of excess positions, both in enforcement and in the judiciary. Lower level judges' and magistrates' lack of impartiality is especially obvious when they unethically aid and abet the unauthorized practice of law by officers, and aid in presenting the prosecution's case.
Note the precedent of U.S. v Singer, 710 F2d 431 (CA 8, 1983) (a judge "helping the Government to try its case").
Judges' obsession with "helping the Government to try its case" has gone so far as with one judge, to engage in ex parte outside-the-courtroom communications with an arresting officer, after the case, to insert additional evidence into the record on appeal! See People v Marcroft, 6 Cal App 4th Supp 1; 8 Cal.Rptr.2d 544 (1992)
Judges not only may aid in presenting the elements of the prosecution case; they may, in the case of unrepresented defendants, tailor their questions so as to omit bringing out elements of the defendant's defense. Example: by failing to ask whether the officer had a warrant, meaning, was there a traffic engineer warrant for the traffic control device or speed limit. (In any other case, judges would ask whether the officer had a warrant!)
Judges may also "testify," pontificate or yammer on, as to aspects of radar operation, e.g., remarks about the officer's skill in using the radar, the ability to single out a specific car. The latter is something radar cannot do, as its beam quickly enlarges to cover the width of the road and beyond, so the issue of which car it was observing is a matter of expert analysis and opinion. Judges cannot testify as either witness, nor expert witness.
Note that the more the number of cases, the more the number of judge jobs.
This situation includes excess jobs being created due to the 90 year pattern of refusal to enforce Michigan's 1909 cigarette control law MCL § 750.27, MSA § 28.216. Cigarette smoking has long been implicated in crime, alcoholism, drug abuse, and suicide. Experienced officers recognize that alcoholism and drug abuse typically occur primarily among smokers, not nonsmokers, about 90% so.
"The proof of the pattern or practice [of knowing refusal to enforce the law] supports an inference that any particular decision [including here], during the period in which the policy was in force, was made in pursuit of that policy." Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).
"Nothing can destroy a government more quickly than its failure to observe its own laws." Mapp v Ohio, 367 US 643, 659; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
By knowingly not enforcing the cigarette-ban law, and anti-poisoning and anti-murder laws, more smoking occurs, with the result that disproportionately more alcoholism, drug abuse, and crime occur. This in turn leads to an excess number of police and judiciary positions being created. While a challenge to the numbers of officers and judicial positions may seem novel, it is simply an application of what the Supreme Court has already found pertinent under Constitutional guarantees of the people's rights to a fair process, Ryder v U.S., 515 US 177; 115 S Ct 2031; 132 L Ed 2d 136 (1995).
The non-enforcement practice of 90 years constitutes a clear-cut conflict of interest, as now enforcement of the cigarette ban, MCL § 750.27, MSA § 28.216, means lay-offs. Having an excess number of such positions both enables racism in traffic stops and grossly disportionate focusing on traffic issues as a revenue raiser, as distinct from having a limited number of staff, restricted to genuine crime issues as a century ago, and as our 1909 ancestors intended.
The continuing pattern of enforcement misconduct, mass refusal to enforce the 1909 law, precludes prosecutions at the latter end of the cause and effect chain. By law, MCL § 750.478, MSA § 28.476, the government (law enforcers) must set an example of enforcing and obeying the laws. Case law to the same effect, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957) and Glus v Eastern District Terminal, 359 US 231, 232; 79 S Ct 760, 762; 3 L Ed 2d 770, 772 (1959), makes clear that a plaintiff cannot rely on its own wrongdoing at the starting point of a process. "[H]e who does the first wrong is answerable for all the consequent damages," Scott v Shephard, 96 Eng Rep 525, 526 (1773).
The government cannot have the benefit of the provisions favorable to its side, while ignoring its conditions which it is to perform, obey, or enforce. Precedents show that no court should aid such a misconduct-committing party, e.g., BTC v Norton CMC, 25 F Supp 968, 969 (1938); and Buckman v HMA, 190 Or 154; 223 P2d 172, 175 (1950). "No one may take advantage of his own wrong," Stephenson v Golden, 279 Mich 710, 737; 276 NW 848 (1938). If smokers are being created, then committing 90% more alcholism, drug abuse, and crime than would otherwise be the case, in turn leading to hiring more police, prosecutors and judges, enabling vastly expanded resources beyond the "Founding Fathers'" original intent, the wrong is the government's pursuant to the 90 year pattern of refusal to enforce the crime/alcoholism/drug prevention law, MCL § 750.27, MSA § 28.216. Somebody should indeed be prosecuted--prosecutors--pursuant to MCL § 750.478, MSA § 28.476, for their protracted, brazen knowing, refusal to enforce the prevention law MCL § 750.27, MSA § 28.216.
In addition, according to Governor John Engler's email message to this web writer, "Smoking is the single most preventable cause of death and disability in America today. In fact, smoking causes over 15,000 deaths in Michigan each year and accounts for more than $800 million in a health care costs for our state. Real and long term improvements in the health status of our citizens demands a state-wide commitment to prevention." Wherefore, police focus (a grossly unscientific priority) on enforcing traffic rules for revenue reasons, while refusing to enforce the cigarette control law MCL § 750.27, MSA § 28.216, leads, as "natural and probable consequence," to the premature deaths of thousands of our residents each year. The priorities are an "order," but as The Nurnberg Trial shows, that is no defense when large numbers of deaths result.
The term "natural and probable consequence" relates to events that "happen so frequently . . . that . . . they may be expected [intended] to happen again."—Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), p 1026. "A person is presumed to intend the natural and probable consequences of his voluntary acts," p 1185. The effects of misplaced enforcement priorities clearly fall within these definitions.
Governor Engler was only citing the deaths in Michigan. The U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book entitled Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p v (December 1977), said of the deaths in the United States at large,
"Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would."
A few years earlier, the Royal College of Physicians of London, in its book, Smoking and Health Now (London: Pitman Medical and Scientific Publishing Co, 1971), p 9, had already declared the smoking-caused death toll to be a "holocaust" due to the then "annual death toll of some 27,500." If 27,500 deaths is a "holocaust," and it is, 37 million is (in contrast to the Nazi 6 million holocaust), a six fold+ holocaust. That is above the World War II "crimes against humanity" level for which prosecutions occurred. Law enforcement priorities were skewed in Nazi Germany as well. Police looked the other way on that holocaust. The same is occurring here, with the same (or worse) "natural and probable consequence."
Due to cigarettes' inherently deleterious nature and ingredients, they, when lit, emit deleterious emissions. The Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of cigarettes' deleterious emissions compared to the chemicals' "speed limits" (official term, "Threshold Limit Value" [TLV], set in the toxic chemical regulation 29 CFR § 1910.1000, including but not limited to:
Additional data of this type can be found in the book by Samuel S. Epstein, M.D., The Politics of Cancer (San Francisco: Sierra Club Books, 1978), p 154. The Occupational Safety and Health Act of 1970, 29 USC § 651 - § 678 forbids hazards. Here is a word picture (using the example of carbon monoxide) of what this type data means:
|Chemical||Quantity||"Speed Limit"/ TLV|
|acetaldehyde ||3,200 ppm ||200.0 ppm|
|acrolein ||150 ppm || 0.5 ppm|
|ammonia ||300 ppm ||150.0 ppm|
|carbon monoxide ||42,000 ppm ||100.0 ppm|
|formaldehyde ||30 ppm || 5.0 ppm|
|hydrogen cyanide ||1,600 ppm || 10.0 ppm|
|hydrogen sulfide ||40 ppm || 20.0 ppm|
|methyl chloride ||1,200 ppm ||100.0 ppm|
|nitrogen dioxide ||250 ppm || 5.0 ppm|
| 42,000 ppm - cigarettes' carbon monoxide
| 32,000 For perspective, police stop speeders going 60 in a 50 mph zone.
| Tobacco far exceeds the "speed limits." Tobacco kills precisely
| because its toxic chemicals are above the safe levels.
| 12,000 ppm - cars' limit "Cigarette Makers Get Away With Murder,"
| (40 CFR § 85.2203-81) says Elizabeth M. Whelan, Sc.D., M.P.H.,
| in The Detroit News, p 4B (3-14-93). The
| above "speed limit" numbers show why.
| 2,000 (Not to scale)
| 50 - legal amount indoors (29 CFR § 1910.1000)
| 9 - legal amount outdoors
| 0 - amount cigarette pushers allow from their personal furnaces
It is because cigarettes' emissions vastly exceed the "speed limits" that they are dangerous and so fatal as to kill millions of people. If cigarettes' toxic chemicals were under the "speed limits," they'd be safe! Example: The "speed limit" for carbon monoxide is about 100, whereas it's doing 42,000.
"The smoker of cigarettes is constantly exposed to levels of carbon monoxide in the range of 500 to 1,500 parts per million when he inhales the cigarette smoke."—G. H. Miller, Ph.D., "The Filter Cigarette Controversy," 72 J Indiana St Med Ass'n (12) 903, 904 (Dec 1979).
"The blood of cigarette smokers will contain from 2 to 10 percent carboxyhemoglobin . . . initial symptoms of poisoning . . . will result from exposures to 1,000 ppm for 30 minutes or 500 ppm for one hour. One hour at 1500 ppm is dangerous to life. Short exposures (one hour) should not exceed 400 ppm, says Julian B. Olishifski, P.E., C.S.P., Fundamentals of Industrial Hygiene, 2d ed (National Safety Council), pp 1039-1040.
The hazard to smokers (need it be said?) arises as their exposure is far above these criteria. Here is another example, explaining why we see smoke clouds hanging in the air:
"[L]ittle mixing takes place, as can be seen by watching smoke plumes rise in still air. Even when the plume is disturbed, the visible core can be observed to maintain homogeneity over a distance of one to three meters . . . . the core with concentrations of tens to hundreds of parts per million of the powerful irritnats acrolein and formaldehyde can readily contact eyes or be breathed with only slight dilution. The irritant properties of these materials may be partly inferred by their occupational [speed] limits. These are 0.1 to 0.3 ppm for acrolein and 1 to 3 ppm for formaldehyde."—Howard E. Ayer, M.S., David W. Yeager, B.S., "Irritants in Cigarette Smoke Plumes," 72 Am J Pub Health 1283 (Nov 1982).
Officers look the other way at violation of Michigan law MCL § 750.27, MSA § 28.216, at going 42,000 in a 50 zone!
The gross disportionate focus on traffic issues lacks a scientific and engineering basis. The Surgeon General focuses on the No. 1 cause of death as—traffic violations!! Not so. There is no genuine basis for the priority given to traffic issues, rendering the matter clearly outside the legitimate realm of genuine law enforcement. The function is revenue enhancement, transferring the tax burden off the "consent of the governed," onto artificially created violators. This is a systemic issue, but the unconstitutional aspect of the system focuses on the individual, purported offender. Such offenders are artificially created, via the mass criminalizing of tens of millions of people, alleged traffic offenders, pursuant to priorities grossly and obviously contrary to scientific and medical evidence, of which the Surgeon General is a leading exponent, but which the enforcers ignore, for revenue raising and racist motives.
XVI. OBEY LAW VS. CUSTOM
In law, "what ought to be done us fixed by a standard . . . whether it usually is complied with or not." Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903). Law exists, is "designed to disrupt," nonconforming practice, U.S. v City of Los Angeles, 595 F2d 1386, 1391 (CA 9, 1979). A "practice" "not based upon any rule of law" must be reversed, Biafore v Baker, 119 Mich App 667; 326 NW2d 598 (1982); The T. J. Hooper, 60 F2d 737, 740 (CA 2, 1932).
But sometimes, violations in disregard of the rule of law, have developed, and continued through generations. Nonetheless, the Constitution and MUTCD are "designed to disrupt" practice, so customs and usages do not define or create law, but must be superseded and ended by it, when the issue is raised. When the government breaks the law, and attempts unlawful arrests, people have been known to respond roughly, example at John Bad Elk v U.S., 177 US 529; 20 S Ct 729; 44 L Ed 874 (SD, 30 April 1900) (a case citing even earlier precedents). Alternatively, one can sue the arresting officers for making the unconstitutional and unlawful arrest without probable cause, pursuant to precedents such as Bivens v Six Unknown Fed. Narcotics Agents, 403 US 388; 91 S Ct 1999; 29 L Ed 2d 619 (1971).
XVII. BEWARE OF POLICE PERJURY
Courts are not fussy about allowing pro-conviction perjury (lying to convict innocent people). Charles M. Sevilla, "The Exclusionary Rule and Police Perjury," 11 San Diego Law Rev 839 (1974), says pro-conviction perjury
The Knapp Commission Report on Police Corruption (NY: 1972) says that, with rare exceptions, those officials who are not corrupt, take no steps to prevent what they know/suspect colleagues do.
Pro-conviction perjury was the subject of a Supreme Court case, Briscoe v LaHue, 460 US 325; 103 S Ct 1108; 75 L Ed 2d 96 (1983) (disregrading dissent by Thurgood Marshall, etc.; the court voted 6-3 that if innocent you is convicted by perjury, you cannot get money damages for your time and pay lost while in prison.).
|"is recognized by the defense bar, winked at by the prosecution, ignored by the judiciary, and unknown to the general public."|
Irving Younger, "The Perjury Routine," The Nation (8 May 1967), pp 596-97 ("Every lawyer who practices in the criminal courts knows that police perjury is commonplace.")
Sarah Barlow, "Patterns of Arrests for Misdemeanor Narcotics Possession: Manhattan Police Practices 1960-62," 4 Crim. L. Bull. 549, 549-50 (1968) (presenting data showing that "dropsy testimony"-i.e., police testimony that an arrestee had dropped drugs as the police came upon them-increased after Mapp v. Ohio imposed the exclusionary rule on state police, indicating that the "police are lying about the circumstances of such arrests so that the contraband which they have seized illegally will be admissible as evidence.").
Fred Cohen, "Police Perjury: An Interview with Martin Garbus," 8 Crim. L. Bull. 363, 367 (1972) ("[A]mong all the lawyers that I know-whether they are into defense work or prosecution-not one of them will argue that systematic police perjury does not exist. We may differ on its extent, its impact . . . but no trial lawyer that I know will argue that police perjury is nonexistent or sporadic.")
David Wolchover, "Police Perjury in London," 136 New L.J. 181, 183 (1986) (estimating that police officers lie in 3 out of 10 trials)
N. G. Kittel, "Police Perjury: Criminal Defense Attorneys' Perspective," 11 Am. J. Crim. Just. 11, 16 (1986) (57% of 277 attorneys believe police perjury takes place very often or often).
Myron W. Orfield, Jr., "Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts," 63 U. Colo. L. Rev. 75, 107 (1992) (survey of prosecutors, defense attorneys, and judges indicates a belief that, on average, perjury occurs 20% of the time, with defense attorneys estimating it occurs 53% of the time in connection with Fourth Amendment [illegal search] issues; only 8% believe that police never, or almost never, lie in court)
Christopher Slobogin, "Testilying: Police Perjury and What To Do About It," 67 U. Colo. L. Rev. 1037 (Fall 1996) ("Police, like people generally, lie in all sorts of contexts for all sorts of reasons. This article has focused on police lying designed to convict individuals the police think are guilty. Strong measures are needed to reduce the powerful incentives to practice such testilying and the reluctance of prosecutors and judges to do anything about it.")
XVIII. MANTLE OF THE SOVEREIGN
Federal law 18 USC § 1001 bans making false statements in any matter within federal jurisdiction, on pain of five years imprisonment. Federal law 18 USC § 241 bans obstructing federal rights, which includes the "right to travel," as per the long line of case law above cited. It is not needed that the accused, whether a private citizen, legislator, or officer, know the technical concepts involved, in order for there to be a conviction, United States v Redwine, 715 F2d 315 (CA 7, 1983). Federal law 18 USC § 1961 bans engaging in a pattern of crime. As a deterrent, the latter provides injured parties triple the normal amount of damages. When state and local officials falsify traffic requirements, in essence to extort money, they are committing federal felonies and are in essence "racketeers" as per the law.
When a citizen is attempting to enforce the Constitution, as herein shown, he is doing so "not for himself alone but also [for others] as a 'private attorney general' vindicating a policy that [the Constitution writers] considered of the highest priority." Newman v Piggie Park Enterprises, 390 US 400; 88 S Ct 964, 966; 19 L Ed 2d 1263, 1265 (1969); Oatis v Crown Zellerbach Corp, 398 F2d 496, 499 (CA 5, 1968); and Jenkins v United Gas Corp, 400 F2d 28, 33 n 10 (CA 5, 1968). In such a case, there can be no intent on the part of the accused to violate the law, as the purpose is to secure enforcement of the supreme law, the Constitution.
WHEREFORE, defendant moves that the court
- dismiss the charge with prejudice;
- declare the "law" unconstitutional;
- enjoin further enforcement;
- refer the matter to the area United States Attorney for prosecution for obstruction of the right to travel and/or extortion pursuant to 18 USC § 241 and/or 18 USC § 1961;
- award damages pursuant to federal civil rights law 42 USC § 1983 for violation of civil rights due to the stop and citation without probable cause, i.e., no legal and constitutional basis; and
- enter a civil "forfeiture" against the arresting officer sufficient to deter him from committing hereafter the unlawful activity herein referenced.
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