(This essay is the second of two parts. Please read Part I for a review of controlling court cases.)

By David Tulis

Eric Kiesche stands before city court Judge Sherry Paty, he says later, surrounded by more than a dozen police officers, walling him off as if he were a dangerous pollutant, making him feel threatened and intimidated.

Mr. Kiesche, said by Chattanoogan.com to be allied to the “sovereign citizen” movement, is going to have charges against him aired without the benefit of a jury. For, after all, he is in what’s called an inferior court, a municipal or corporation court, which serves the purpose of the old justices of the peace. And that purpose is to dispatch minor offenses and save clogging constitutional courts with petty cases not worth troubling a jury.

Judge Paty, arbiter as she is of both the facts and the law in such a court,  rules against Mr. Kiesche. He is guilty of driving with high beams on within 500 feet of an oncoming car, not having a driver’s license and driving without proof of insurance. His confrontation with police was prompted by the headlight slipup, which gave the officer probable cause to halt Mr. Kiesche in his travels. “This is a bill of rights violation like I’ve never seen,” the defendant, tells the judge. He also asks her, “Is this a commercial court, or a court of justice? I know the answer.” He is further quoted by Chattanoogan.com as saying, “What you have basically done is railroad me.”

Hixson native, preoccupied, indignant

Mr. Kiesche, 62, is a native to the Chattanooga and resides in Hixson. He “enjoyed a lot of freedoms in my 20s that are no longer being in play.” His background is in engineering design. He has several patents and has designed a variety of machines here and in plants across the country, he says. He worked in a variety of companies. In his 40s, he got more concerned about the state of the country, and began devoting his attentions to liberty and constitutional law, a fascination which often becomes a consuming passion in those who pursue it.

We are discussing city court. “It’s not really as a court, it’s operating as an administrative type capacity, an administrative hearing. It doesn’t have a district attorney present. There is no trial by jury capability; you can’t demand it.” Mr. Kiesche is describing merely what might be called the constitutional disability of city court, which handles cases informally for the purpose of dispatching them without the time-consume niceties of a jury trial. (All the more reason to follow the advice of another free Tennessee motorist, the Gnome of Strawberry Plains, to “waive the court.” That means to throw ones self upon the mercy of the grand jury, and deal with any charge that may be handed down in a “true bill,” indicating a criminal trial is warranted, and one can insist on one’s constitutional rights.)

What is the main disagreement Mr. Kiesche has with the state? He says it is attempting to deny him his rights to use the people’s highways for a private purpose, and to do so as the exercise of a liberty. He has a right to use an automobile to travel privately on the road, and that he is not a driver of a motor vehicle, he says. This last terminology, he says, denotes a user of the road subject to policing and regulating who is operating in commerce. Indeed, he says, such a one is subject to the requirement that he obtain permission from the state to use the road. “A traveler, or operator of an automobile, refers to a private entity. There is a separation between commercial and private. The problem is, they mix the two up. So if someone comes on the news and announces it’s a privilege to drive, actually, technically,they are  correct because you are operating in commerce on the public highway. If you are operating at a private capacity, then it is truly a right to travel.”

I ask Mr. Kiesche if for “private purposes *** to get from home to Floyd Hardware” in Soddy-Daisy” I am free to travel by automobile. Could I do that apart from being a licensee exercising a state privilege? Yes, he replies.

Parallel world? Or madness?

Mr. Kiesche seems to live a world parallel to the one ordinary people occupy. People like me and you live in the primary world, where by dint of our signature we have entered myriad contracts with governmental entities and for-profit corporations.

My perspective on the servitude Mr. Kiesche describes is that of a Christian fully resigned over the weak state of faith in our day. In these bonds I am reminded of the covenantal ways of God. God imposes a unilateral covenant with mankind. He is God; here are His orders. Tennesseans live in a covenantal relationship, as it were,  with the state, subject under God to the ministry of the magistracy. When the people sin, the state comes to reflect their slavery to sin, and turns upon the people to enslave them, to make life difficult and costly. No less happens to the Israelites, who are subject to repeated servitudes for their spiritual whoredoms and idolatry. The Philistines, Midianites and Babylonians all have their turn lording it over the covenant folk.

I ask Mr. Kiesche about the ownership of activity such as those exercised by trade guilds at the dawn of capitalism. Guilds stifled free trade and hampered industry with claims to possess fields such as the operation of looms. ‡ Mr. Kiesche offers the view that birth certificates are trafficked as a commodity no differently than pork bellies. If one wedges onesself down into this “rabbit hole”one might find the secrets that legally glue the motorist (free) to the driver (the licensee), he suggests. Here is a mysterious commercialism that deprives people of their freedom, where common law rights are replaced by positivist law and the claims of the regulatory state concerned about “pre-crime,” to use Mr. Kiesche’s word. Indeed, the regulatory state exists to prevent bad things from happening; it identifies potential crimes and creates legal hedges to make them less likely.

“As far as applying it to the automobile, to the motor vehicle, there you go,” Mr. Kiesche says. “You’re registered as a commercial entity. You have birth certificates, you have a social security numbers, you have all sorts of implied contracts, and I guess you did sign the driver’s license. So all these things denote your position relative to government. That’s how it applies to the automobile.”

Mr. Kiesche is very idealistic to say the people own the roads with the state acting as trustee. I had proposed that somehow the state had come to own the streets outright. Mr. Kiesche insists there have to be bonds, deeds of trust and instruments denoting a fiduciary relationship between the state itself and the people at large, those called a “free people” in the Tennessee constitution. He says the roads belong to the people, with the state as fiduciary and caretaker, as trustee.

The state’s rationale for exercising police powers upon a free market

In defense of the status quo of state licensing of drivers, I bring up the whole question of highway deaths.

In Hamilton County in 2011, 36 people were killed in highway crashes. In 2012, it was 38. Overall in Tennessee, according to the Tennessee Department of Safety and Homeland Security, 937 people died in 2011 on roads in the state, and 1,022 in 2012. The department led by Bill Gibbons controls the users of the roads under this purpose, the public safety.

The state’s high court in a 1940 case describes the function of the licensing apparatus in terms of public safety. The court rejected a challenge by Earl Sullins of the driver’s license statute in a dispute over nonpayment of a fine. The court holds that a driver’s license is not a property right, and that the state can revoke a license upon reasonable proofs. Quoting another case, the Sullins court says “[t]he driving of an automobile is a privilege, not a property right, and is subject to reasonable regulation under the police power in the interest of the public safety and welfare.” If a person knows his license will  be suspended for careless use of his car, “he will necessarily operate his automobile with more care and circumspection.” A driver who is poor and could not pay for damages his causes in an accident will be more careful because while he may not be able to pay civil damages, he might lose his license.  “The statutory punishment should make the impecunious operator more careful, and thus tend to protect the public.” The power to yank a privilege secures the public a protection, “the public *** [is] no longer exposed thereto by persons unable to pay.”

The driver’s license law is “a wise and wholesome law,” the Sullins court says. “In some instances it may work hardships, as most laws do, but when tested by the greatest good and the greatest number it impresses us as being reasonable and beneficient.” (Sullins v. Butler, 175 Tenn. 468; 135 s.W. 2d 930; 1939 Tenn. Lexis 63)

Facing arrest, jail over a contract dispute? Why I am confused

Now please stay with me just a little further to see the valuable point Mr. Kiesche is making. Perhaps he cannot prevail in any court on his claims, because he is pointing to a vital muzzying of the law that arose upon the commoners of the country during the rise of the regulatory state in the Progressive era (1890s to 1920s).

The last sentences of the court’s ruling in Sullins seem to go to the heart of Mr. Kiesche’s distress. His question before city court is whether he is being tried at law, or at equity. The Sullins judges say the trial court, “considering the suit to be of equitable nature, took jurisdiction to hear *** the case upon the principles of equity” under a section of the Tennessee Code Annotated.

OK, so traffic stops, trials and convictions are at equity (law of contract, commerce, equal and fair play). They are based on some kind of agreement or contract. That means a traffic stop is a contract dispute. How can the police enforce a contract, which a civil matter, as if it were a criminal matter, but doing it in a civil court, but able to impose criminal sanctions? You can be sentenced to prison for a contract dispute.

Mr. Kiesche is insisting that since police stops, city court and driver’s license questions are at equity, as Sullins says, then he will be dragged into that jurisdiction only if the police officer standing outside his door can show proof of a contract. Since Mr. Kiesche has no license, has not sought a privilege by signing into the system, he claims he won’t testify against himself in any matter with a criminal aspect. So he faces arrest as a hazard of getting into his automobile and entering upon the public roadway. The cop is an equal hazard as the drunk driver or the careless semi operator, and Mr. Kiesche hopes to avoid all.

Mr. Kiesche intends to stand on his rights to not enter into a contract with the state over his use of a gasoline fueled and self-propelling contraption. Some people, he says, “want to be a statutory, contractual citizen,” but he doesn’t. Most people don’t knowingly enter the system, but go into it as victims of deception, ignorance or fraud. People enter the system under duress. He refuses to,  confident to stand upon rights guarded for the people by the Tennessee constitution and the federal constitution.

What to make of this conflict? Any advice for defendant?

Mr. Kiesche is making the mistake of attempting to defend himself in a corporation court when he should have insisted on his constitutional right to an indictment.‡‡ Then, in criminal court, his claims to liberty under the constitution would get a fairer hearing. Since he makes no attempt to “waive the court and take his chances with the grand jury,” as I later suggest, he is going to be judged at equity, where his arrest is part of a business transaction. But every case in city court can be appealed de novo. That means any case can get a fresh start before judge and jury, and if it is a crime to not enter into a contract at equity to use the streets in a car, let the 12 common folk of the jury decide the facts and the law.

Mr. Kiesche’s arguments about unrebutted claims being allowed to stand might be more properly recognized before a constitutional court. In city court, which is designed for rapid disposition of cases, he is wasting his time making any claim whatsoever, though he does provide drama for the journalists and unfriendly police. But Mr. Kiesche indicates he may not have the means to pursue the case and have a fresh trial.

‡ “For generations, capitalism could not develop in the woolen industry for lack of freedom. With the full backing of the local ruler in return for regular permission fees, the merchant weavers’ guilds in the various towns and cities operated as repressive cartels, narrowly restricting the entire industry ***. [A]nyone found to have varied the formula for a popular scarlet [dye] could be ‘condemned to the crushing fine of 105 lira or, failing payment, to the loss of his right hand.’ Guild rules kept individual firms very small by limiting the number of looms they could own usually fewer than five. Prices were controlled, and no bargaining was allowed, thereby limiting any benefits of increased efficiency. The weavers’ guild also set the length of the working day and required all firms to comply.” Rodney Stark, The Victory of Reason[;] How Christianity Led to Freedom, Capitalism, and Western Success (New York: Random House, 2005), p. 133.

‡‡ Mr. Kiesche says he was not trying to defend himself in the court, but was there to avoid being arrested. Because the courtroom was cleared of members of the public, the court became a private tribunal and was illegal and a violation of civil procedure and rules of court, he says. A reasonable jurisdictional challenge was denied, the defendant says.

Also by David Tulis:

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

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

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

Roadway gnome insists on right to travel at liberty, apart from licensing demands

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