To travel by right, defy citation under administrative procedures act

print

Most people accept being drivers of motor vehicles, and so obtain licenses to use their cars. But others as a matter of free market principle refuse to ask permission to use the road and their cars, and sometimes face a little roadside excitement.

By Rob Wornell

The basic concept behind the idea of the super-healthy grass-fed, free-range user of the highways is this: The state has the authority to regulate commerce (driving) but it does not have the authority to regulate the right to travel in your property upon the public roads in the way in which it was intended (what the common man describes as driving around town in their car).

The right to travel is so inherent in the right of liberty that it was not necessary to include within the bill of rights. Therefore we all have the right to travel.

We the People of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and SECURE THE BLESSINGS OF LIBERTY TO OURSELVES AND OUR POSTERITY, do ordain and establish this Constitution for the United States of America.

Our rights can only be denied for violating the law of the land or sickness that incapacitates judgment. The possession of the instrument for exercising a right, a typewriter or a firearm, is part and parcel of that right, and the licensing of that instrument provides the government the ability to deny the right itself.

Therefore the “registration” of the car would be a violation of the right as well as requiring a “driver’s license” for the exercise of the right to travel in your car.

The administrative procedures act useful

There are a lot of different tactics one can take in asserting or defending the right to travel; I’ve found the best way for myself and quite a few others to attack this denial of rights to be the administrative course.

In its simplest form, the administrative course I refer to is this: The agency that writes the transportation code or motor vehicle code or whatever they call it in your state has to abide by the administrative procedures act (APA) of your state. In Tennessee, it’s the Department of Safety and Homeland Security. These rules / codes / “laws” are improperly applied to the common man traveling in his property on the public roads not in commerce. You get stopped, written a citation, and told to go to court by such and such date.

So, you disagree with the agency saying that you have a right to travel? You contest the agency determination that you fall within its purview. Write a letter to the agency stating such and demand a hearing.

The state’s administrative procedure act requires the state to exhaust all administrative remedies before proceeding to a judicial forum. This means both parties are allowed an administrative hearing  before an administrative judge in the case of a dispute and if the contesting party still isn’t satisfied, you are allowed to have the case heard before a court of law (a true judicial hearing). To assert your right to travel by car, you must contest the administrative agency’s determination it has the authority to regulate your right to travel. If the state proceeds to the judicial forum prior to exhausting all administrative remedies, they have denied your right to due process.

This means the court that they say you have to show up at by such and such date does not have subject matter jurisdiction, or SMJ, because the state has failed to exhaust its administrative remedies. Because the court lacks SMJ it cannot make a ruling and must dismiss the case.  Move for dismissal for subject matter jurisdiction and go home happy.

That, in its simplest form, is the administrative remedy.

If you don’t think driving laws are administrative, then look into the DWI/DUI license suspension rules.  Or ask someone who’s been through one.

Licenses affect regulated activities; think of your house’s pipes

Here’s an example, but offered in a way that most people can understand.

The Department of Consumer Affairs has an agency called the Construction Licensing Board.  It licenses plumbers and writes the codes that plumbers must follow in their line of work. These requirements apply to all plumbers that you find in the yellow pages, but it doesn’t apply to regular people just helping out a friend or working on your own plumbing.  So, if they were to write you a ticket for plumbing without a license and not following plumbing code, you would say, “Wait a minute, those codes don’t apply to me.” If they were to demand you go to court, you would tell them they don’t have the authority to regulate your right to plumbing and the court must dismiss because you’re not a commercial plumber.  (It’s a somewhat silly example but I find that saying things in another way sometimes helps people to understand)

Now, the thing to do is to write a letter contesting the agency, write your motions for the court, appear before the court specially, challenge both personal and subject matter jurisdiction, and maintain a court record. The lower level courts repeatedly ignore the law, which is why you enter written motions to preserve a record for the higher appeals courts. Then you can have the verdict overturned.

Oh, and another tip: Most states require a summons or warrant to get you into court.  Citations are usually not the same. Warrants and summonses are issued forth by a judge, and not a police officer.  And municipal code is not the same as state law.

A mutual aid society

Now, I’ve successfully beaten nine of 11 tickets. I’ve still got one in appeals court (it’s been there for over two years now).  I consider a win any dismissal as I don’t push for a not guilty verdict, just a dismissal due to lack of subject matter jurisdiction and personal jurisdiction.

If anyone is interested in discussing more of this matter of administrative challenge in a very detailed manner and getting some real information on how to win these cases, I suggest checking out the Yahoo group of which I am a part. We regularly post information, winning strategies, case law, etc. We provide feedback for motions before you enter them into court, research material, and general answers to questions.  Above all, we help support the right to travel without a driver’s license.

You may also enjoy these related essays by David Tulis and Roger Roots

How state snips quills of constitutional rights, manhandles ‘free’ people

Marceaux, ‘illegals,’ libertarians slip past mysterious gap in driver license law

Bid to uncover harassment on state highways stonewalled

Program to harass motorists not in statute, doesn’t exist, chief says

Behind the modern driver license: Absolutism of administrative law

Driver license system voluntary, Gnome of Strawberry Plains says amid new prosecution

New defense for aliens, liberty lovers: No requirement to obtain driver license

If licensing scheme runs on consent, ‘illegals’ may be freer than citizens

The next time you get ticket, ask questions a la Scarlet Pimpernel

Mr. Kiesche, tootling about in auto, insists not ‘driving a motor vehicle’

Judges’ trick on ‘right to travel’ defied by hard-of-hearing motorists

Preserving your rights in city court; judge fields my odd liberty queries

1997 Tenn. case says you have right to travel, but not by car

The orphaned right: How states squelched Americans’ right to travel

 

 

11 Comments

  1. George March 28, 2013 Reply
  2. AT March 28, 2013 Reply
  3. Thomas April 2, 2013 Reply
  4. Brian Conaway April 8, 2013 Reply
  5. SAS April 8, 2013 Reply
  6. Jim Joslin April 8, 2013 Reply
  7. Dennis April 9, 2013 Reply
  8. Captain Rob April 9, 2013 Reply
  9. Harry November 25, 2013 Reply
  10. Jon Williams November 2, 2016 Reply

Leave a Reply