By David Tulis
You have myriad constitutional rights granted to you by God because you are made in His image.
Does a state agency, operating in the realm of administrative law, have the authority to trump your exercise of your God-given constitutionally protected rights?
The answer is that it doesn’t. But the state effectively deletes the rights of the people by winning them over into the administrative realm by their voluntary consent.
The state gets people to surrender and waive their constitutionally protected rights by proffering benefits. Take the driver license, for example.
If you have a driver license, you have the priviledge of operating a motor vehicle. Nothing beats that for ease of travel, for getting to your job, for paying a visit to one’s grandmother or one’s girlfriend, for increasing one’s value to one’s friends. By operating a motor vehicle under license, we have upon our persons at all times a means of ID. We can buy alcohol, rent certain types of equipment or entertainment. We have a handy document to show the police officer at a traffic stop.
Certainly a driver license — an evidence of a state special license and permission — has many uses beyond the actual use of the roads.
For people such as Tim Murphy, 19, it marks a rite of passage. The Chattanooga ma has worked three years at Dairy Queen and is about ready to apply for an unrestricted driver license and shift to a better employment. It marks his independence from other people, his being free from rules limiting the sorts of private passengers he have in the car while he is driving.
But the law of agency does not trump constitutional rights. Administrative duties and obligations do not trump rights you have because God gave them to you, His image bearer and soul with a body.
An important Tennessee criminal case wending its way still in circuit courts in Tennessee highlights this claim, with the defendant unwilling to concede God-given rights entrusted to him. Arthur Jay Hirsch, 65, known as “the Fiddle Man of Lawrenceburg,” is a Tennessean who shows remarkable prescience. He asks a question: Does the state have authority to delete my constitutional rights?
In a hearing Feb. 1 in Lawrenceburg, he handed to circuit court judge Russell Parks a motion to quash an indictment alleging he criminally used a car on the road without a driver license.
Rights are free, unencumbered
In a nutshell, Mr. Hirsch says that charges of “driving while license cancelled, suspended or revoked,” “driving or moving unregistered vehicle upon highway,” and “compliance with financial responsibility law required” are commercial in nature. He declares he is not using the roads in commerce, but for private purposes as a personal and constitutionally protected right.
Unlike attorneys in the state and hundreds of other defendants, Mr. Hirsch understands the nature of the system and proposes a form of self-liquidation of the case. Let me explain.
For the state to accuse him, Mr. Hirsch insists, it must resort to prosecuting him in agency, under the uniform administrative procedures act that regulates how agencies operate within the realm of administrative law. He says that if indeed he is in the administrative realm of law, as are licensees, he has to be tried there and that the state must follow the rule of exhaustion of administrative remedies. It should be observed that agencies have no authority to haul anyone before them who is not in subject to them in equity. That means, a person is subject to an agency only if it has an equitable or contractual relationship or agreement with such agency in commerce.
So if a judge says the department of safety and homeland security must hear the Hirsch case first in house, that disposes of the case entirely and it will disappear. No agency in administrative law has any authority over a citizen not attached to it through commerce, licensure or other form of submission.
That’s what I mean by the term self-liquidating. This remedy has been used by dozens of such users of the road around the U.S.
Below is his motion making this point and showing that the indictment against him was premature.
The first several points establish that the entities hounding him in court are administrative in nature. If the judge agrees with him on the exhaustion of remedies rule, the case goes into agency. If it goes into agency, it disappears. Because if the agency doesn’t have a relationship with a defendant at equity (by agreement, contract, application, fee payment, etc.), it has no jurisdiction over a flesh and blood citizen against whom it may file a contested case. The meaty material is in the last third of the document.
Mr. Hirsch is a rare defendant. He is raising the right questions, which he cannot lose by asking. If his motion to quash fails, he goes to trial and has a clearly appealable issue. If he succeeds, his indictment goes away and he can get about his business.
The headings within the motion are mine.
Victimless crimes, administrative charges: motion to quash
Accused, Arthur Hirsch, moves this Court to enter an order quashing the indictment for reasons set forth as follows:
- COUNT 1 – That indictment count one alleges a violation of TCA 55-50-504. Driving while license cancelled, suspended or revoked — Minors — Forfeiture — Notice.
- COUNT 2 – That indictment count two alleges a violation of TCA 55-3-102. Driving or moving unregistered vehicle upon highway a misdemeanor — Exception.
- COUNT 3 – That indictment count three alleges a violation of TCA 55-12-139. Compliance with financial responsibility law required — Evidence of compliance — Issuance of citations by police service technicians.
- ADMINISTRATIVE LAW STATUTES: That all of the above are administrative law statutes under the administration of the Department of Safety (“DOS”) and the Department of Revenue (“DR”) of the executive branch of government.
- 55-50-201. Administration by department. This chapter shall be administered by the department of safety;
- 55-2-101(1). Administration by commissioner of revenue. Except as otherwise specifically provided by law, chapters 1-6 of this title shall be administered by the commissioner of revenue.
- DOS ADMINISTRATORS: That counts one (1) and three (3) are administered by “the chief executive of the federal motor carrier safety administration,” and the “commissioner of safety;”
- TCA 55-50-101(1) “Administrator” means the federal motor carrier safety administrator, the chief executive of the federal motor carrier safety administration, an agency within the United States department of transportation;
- TCA 55-50-101 (13) “Commissioner” means the commissioner of safety;
- REVENUE DEPARTMENT ADMINISTRATOR: That count two (2) is administered by the commissioner of revenue;
- 55-1-111. “Commissioner” and “department” defined.
As used in chapters 1-6 of this title, unless the context otherwise requires:
(1) “Commissioner” means the commissioner of revenue; and
(2) “Department” means the department of revenue.
- LICENSING & REGISTRATION: That the commissioner is authorized to establish administrative rules and regulations concerning the licensing of persons to operate motor vehicles, and the commissioner of revenue is authorized to register motor vehicles and collect the privilege tax;
- 55-50-202. Establishment of rules and regulations.
(a) The commissioner is authorized to establish administrative rules and
regulations concerning the licensing of persons to operate motor vehicles.
- 55-4-101 (a)
- As a condition precedent to the operation of any motor vehicle upon the streets or highways of this state, the motor vehicle shall be registered as provided in this chapter.
- The registration and the fees provided for registration shall constitute a privilege tax upon the operation of motor vehicles.
Administrative rule controls
- UNIFORM ADMINISTRATIVE PROCEDURES ACT: That the commissioner’s rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- TCA 55-50-202(b)
- ADMINISTRATIVE COURTS’ JURISDICTION: That the aforesaid three counts are within the jurisdiction of the Tennessee administrative law courts and are to be heard there first until all administrative remedies have been exhausted.
- ADMINISTRATIVE REMEDY NOT EXHAUSTED: That until all administrative remedies have been exhausted by the DOS the prosecutor lacks authority to solicit a judicial indictment, bypassing the requisite administrative law procedure on the instant administrative vehicle code driver license, registration and insurance matters.
- INDICTMENT IS PREMATURE, CASE NOT RIPE: That the indictment is premature and this case is not ripe for judicial proceedings since the indictment charges are to be first handled administratively by the DOS under the Uniform Administrative Procedures Act, Title 4, Chapter 5 as stated above which has not been done.
WHEREAS, the indictment presumes the accused to be operating in commerce on the public highways transporting people or goods by motor vehicle for hire, and that he is subject to the DOS administrative rules and regulations regarding motor vehicles; and WHEREAS, the DOS is the executive administrative agency authorized to deal with all issues regarding driver licenses, vehicle registration and insurance, lacks jurisdiction and standing with which to obtain an indictment against a constitutional Tennessean who is a private person not acting in commerce; and
WHEREAS, the three indictment charges clearly arise out of matters subject to the Uniform Administrative Procedures Act, which require the DOS to first exhaust all administrative remedies with respect to said charges before judicial remedies are sought – which has not been done;
THEREFORE, for the above-mentioned administrative law reasons the accused, Arthur Hirsch, moves this Court to enter an order quashing the indictment as it is premature, which makes this case unripe for further judicial proceedings. Date: Feb. 1, 2016.
— David Tulis hosts a talk show weekdays in Chattanooga from 9 to 11 a.m. on 1240 AM Hot News Talk Radio, covering local economy and free markets in Chattanooga and beyond. Support this site and his radio station on the real airwaves in Chattanooga, on your smartphone via the TuneIn radio app or at Hotnewstalkradio.com. You back David by patronizing his advertisers with specific reference to him. Even better, encourage independent media by having David run commercials for your business. Also, “buy me a coffee at the tip jar.”