Dragonater Note: Cops and ex-cops are fully aware that cops are loonies. Notice how this ex-cop/lawyer positions himself -- not to talk himself out of a ticket -- but to prevent first-degree murder and coverup of the crime by Police State death squad... Don't wanna end up triple-tapped in the head, like Loudon County deputy Jim Miller. Traffic cops make great hitmen, like Al Capone's St. Valentines Day Massacre.
Notice how the ex-cop accuses the psycho cop of traffic crimes subject to arrest, just like The Dragonater files criminal charges against every cop who dares make a traffic stop arrest of The Dragonater...
Under TN Code, cops have no immunity from arrest for all traffic crimes unless they have both emergency lights and siren turned on.
(a) The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(c) (1) The exemptions granted under subsection (b) to a driver of an authorized emergency vehicle shall only apply when such vehicle is making use of audible and visual signals.
In September of this year, Ed Stone, who is on the Board of Directors of Georgia Carry, had a telling encounter with a Fayetteville Georgia police officer. The encounter began when Mr. Stone, a former cop himself and an attorney, made what he called the “universal gesture for slowing down” to Officer Terry Fortner as Fortner passed him going at a high rate of speed (71 in a 45 according to the dashcam) without his lights or sirens activated. Apparently, Fortner didn’t take kindly to a mere mundane suggesting that he slow down. He pulled Mr. Stone over and threatened him with arrest. This is Mr. Stone’s description of the encounter.
I saw a police car approaching at 20-25 over, and I quickly checked the speedometer to make sure I was not unintentionally speeding. Nope. Speed was right at the limit. He must not have been after me.
The police car is about to pass me, and I make the universal gesture for slowing down, by pushing my hand down twice, and mouthing “slow down” when the officer looks at me.
He slams on his brakes, slows down too much, then speeds up beside me while rolling down his window. He does not look pleased.
“Slow down,” I repeat audibly.
I think he replied, “Are you serious?” before pulling in behind me and activating his lights.
So I stop and have my license in hand, and he comes up to my window, oddly untactical by placing his entire body right in the middle of the window. I ask why he pulled me over, and he listed some things.
I will not try to pretend this is verbatim or in exact chronological order, but the audio on the video should have an accurate record. He claimed I was disrupting traffic, obstructing an officer, and committing disorderly conduct, and that I was going to be arrested. I handed over my license. He asked if I still lived in Senoia, and I confirmed that I did. He asked something else, and I told him I would not be answering any questions without a lawyer present.
I do not remember exactly when, but I told him that I believed he had pulled me over with no reasonable suspicion of a crime, and I asked for my license back and for him to release me.
He also informed me that he was “on an alarm call.”
I told him that I hoped his audio and video was on, and he assured me that it was.
He went back to his car while I waited several minutes, careful to keep my left hand out the window and my right on the seat back and otherwise not move so that he would not later claim any furtive movements.
When he returned, he handed me my license and a business card with City Ordinance 62-11 Police Interfering with written on the back. He started on a rant, but since I had my license back, I asked if he was continuing to detain me.
“Yes!” He pulled the door open and ordered me out of the car.
There was not time to roll up the window, retrieve my keys, and lock it. So much for that plan. I did not have my gun on my belt, because I was coming from church. Officer Fortner saw my 10mm on the floorboard and hesitated for less than a second before ignoring it.
I walked behind my bumper to make sure that I was on video in case this joker attacked me. I folded my hands in front of me to make sure that I did not have any movements that he could claim were hostile or threatening. I faced his windshield.
“Have you ever been to jail?”
No answer.
He repeated the question, and I neither moved nor answered.
At some point he started telling me that he had been trying to let me go. I told him that I asked him if I was still being detained, and his answer was “yes.”
“You interrupted me!”
“Am I free to go?”
“Yes.”
“Thank you,” I said, as I immediately turned on my heel and headed for my truck door.
The dashcam video backs up Mr. Stone’s description of what occurred.
Officer Fortner clearly demonstrates the power trip that many officers seem to exhibit. His own words are telling. He ask Mr. Stone “what causes you to believe that you have the right to flag a police officer and tell me to slow down.” Officer Fortner seems to believe that he should be able to be as reckless as he wants, and you the slave should just shut up and mind your own business. He mind as well have said, “See this shiny piece of metal on my chest, it means I can do whatever the hell I want to do. How dare you suggest otherwise. You are just a lowly citizen.”
Officer Fortner goes on to tell Mr. Stone that he was en route to an alarm call. If it was true that he was responding to an alarm call, an apparent emergency that required him to go almost 30 mph over the speed limit, why did he feel that he had the time to stop Mr. Stone for over 8 minutes in order to chastise him for a simple gesture?
Mr. Stone should be commended for how well he handled the officer’s power trip. He did exceptionally well and did just about everything right. He did file a complaint and Officer Fortner’s superior found that his “conduct was unbecoming” and that “his actions will be corrected through Department disciplinary measures.” I don’t know about you, but this doesn’t make me feel any better. “Department disciplinary measures” are unlikely to change the mindset that made this officer feel he could detain an individual for the horrible crime of expecting an officer to follow the laws that he himself expects others to follow.
Dragonater Note: DUI homicide is routinely prosecuted as first degree murder, with prosecutors seeking life in prison in Tennessee, and the death penalty in NC. Unless you're an illegal alien, First Lady Laura Bush, or VP Joe Biden, then you get immunity.
The legal limit for blood-alcohol is 0.00% for everyone else, according to THP and all judges.
"Strictly speaking, a driver can register a BAC of 0.00% and still be convicted of a DUI. The level of BAC does not clear a driver when it is below the 'presumed level of intoxication.'" —Tennessee Driver Handbook and Driver License Study Guide, 1990 to 2010
By ELLIOT SPAGAT, Associated Press Elliot Spagat, Associated Press – Sun Nov 142010
SAN DIEGO – A man was arrested on suspicion of driving under the influence after he slammed his car head-on into a group of motorcycle riders celebrating their club's 10th anniversary, killing four motorcyclists and his companion, authorities said Sunday.
The driver, Carlos Ramirez Bobadilla, was among six people injured in Saturday's crash on a remote desert highway, said California Highway Patrol Officer DeeAnn Goudie. Ramirez, 36, was recovering from hand fractures at a San Diego hospital.
The arrest was made when officers smelled alcohol on his breath about five hours after the crash, Goudie said. Results of a blood test were pending.
It is unclear if the driver's alleged alcohol consumption contributed to the collision, Goudie said, but he was arrested on a misdemeanor and is not being held responsible for the deaths based on evidence collected so far. Authorities were looking for the driver of a gold Honda Civic who forced Ramirez off the road when trying to pass the motorcyclists on the undivided two-lane highway east of San Diego.
Ramirez, of Mexicali, Mexico, swerved his white Dodge Avenger to the right shoulder to avoid the Honda and then overcompensated by swinging left into oncoming traffic, Goudie said. Ramirez's speedometer was found stuck at 60 mph, 5 mph below the speed limit.
"It would have been nice if he had just gone off to the right," she said. "He would have been stuck in the soft sand."
None of the motorcyclists got the license plate of the Honda driver — described as a man wearing a baseball cap. No one pursued him, choosing to stay behind to attend to their friends.
"I was the first person on scene that had a uniform on," Goudie said. "I was being dragged in every direction by frantic people saying, 'Help this person, help that person.'"
The CHP withheld names of the five who died, pending notification of next of kin. They included a husband and wife who were on a motorcycle that was first to be struck.
A man who was driving a motorcycle behind the couple was struck next and died, Goudie said.
Ramirez turned and hit a third motorcycle, killing a woman who was riding on the back and injuring her husband, Wilson Trayer, 39, of Lakeside, Goudie said.
Trayer's motorcycle sliced 18 inches into the front passenger door of the Dodge that Ramirez was driving, killing Ramirez's companion, a 31-year-old Mexicali woman who owned the car, Goudie said.
Carl Smith, president of the Lakeside-based Saddletramps Motorcycle Club, said three riders were seriously injured but expected to survive. Two others had less serious injuries.
William Barnes, 57, of San Diego suffered a punctured lung and broken hip and ankle and his wife, Melanie, 46, broke her pelvis and had a brain hemorrhage, Smith said. Trayer broke his pelvis, ribs, back and jaw, according to his daughter, Sierra.
"It's going to be a long recovery for the three of them," Smith said.
One of the injured — John Philip Lombardo, 55, of Lakeside, whose leg was hit by an ejected motorcyclist — was released from the hospital, Goudie said.
Another rider had her spleen removed, Smith said. Goudie identified her as Kelly Halley, 42, of Santee.
Smith was leading the motorcycles and watched in his rearview mirror as Ramirez turned his sedan into oncoming traffic and struck the middle of the pack. There were 21 riders on about a dozen motorcycles.
"The car was out of control when I went by him. He narrowly missed me and my vice president," said Smith.
Smith doesn't blame Ramirez, despite the allegation that he was driving under the influence. He considers Ramirez a victim because his companion died.
"It looked like he overreacted, but the guy in the Honda Civic was at fault," said Smith, who estimated the Civic was going 95 mph when it passed the motorcycles.
The group met Saturday morning at Smith's Alpine home and had breakfast at the Golden Acorn Casino off Interstate 8 in Boulevard. They planned to spend the night at the Quechan Casino Resort in Winterhaven, near the Arizona state line.
"They were just going on a nice, leisurely ride in the desert because the weather's gorgeous now," Goudie said.
The accident occurred about 1 p.m. Saturday on state Route 98 near the hamlet of Ocotillo, about 80 miles east of San Diego. The curvy road, which hugs the Mexican border, links Mexicali to Interstate 8 and is used by motorists from Southern Californians and Mexico's Baja California state.
Smith said club members are close friends — many in daily contact — who go on long monthly rides and do an annual charity drive for the Boys and Girls Clubs of East (San Diego) County. They plan a blood drive to help the injured riders.
Associated Press writer Christopher Weber in Los Angeles contributed to this report.
THE DRAGONATER WINS IN TRAFFIC COURT AT DEALS GAP, RAISES SPEED LIMIT TO 65 MPH ON THE DRAGON - NOLLE PROSEQUI BY BLOUNT COUNTY ATTORNEY GENERAL. NO TESTIMONY, HEARING NOR TRIAL WHATSOEVER. 60 MPH SPEEDING TICKET DISMISSED WITH PREJUDICE, COSTS PAID BY THE STATE, IN BLOUNT COUNTY GENERAL SESSIONS COURT WITH JUDGE BREWER. THP TROOPER RANDALL HUCKEBY ADMITTED ON VIDEOTAPE DURING TRAFFIC STOP THAT ALL SPEEDING TICKETS NORTHBOUND ON US129 AT MILE MARKER 0.5 ARE FEDERAL JURISDICTION, NOT STATE JURISDICTION (VIDEO BY THE DRAGONATER). HUCKEBY WAS ALSO CAUGHT ON VIDEO SPEEDING AT 60 MPH ON THE DRAGON, WITHOUT THE MANDATORY EMERGENCY LIGHTS AND SIREN REQUIRED FOR IMMUNITY FROM PROSECUTION (VIDEO BY THE DRAGONATER). TDOT ADMITTED IN WRITING THAT THE MANDATORY TRAFFIC ENGINEERING SURVEY SPEED AUDIT WAS NEVER PERFORMED, IN VIOLATION OF TN CODE, THUS THE POSTED 30 MPH SPEED LIMIT ON THE DRAGON REVERTS TO THE DEFAULT 65 MPH IN TN CODE. THE DRAGONATER ALSO MADE VIDEO OF TROOPER HUCKEBY SPEEDING UP TO 60 MPH ON THE DRAGON IN A 30 MPH ZONE, WITHOUT MANDATORY EMERGENCY LIGHTS NOR SIREN, IN VIOLATION OF TN CODE, AND PERJURY IN HIS PERSONNEL FILE, WHICH SHOWED HIS $100,000+ SALARY. 2007 TDOT SAFETY AUDIT REPORT CONFESSED THAT THP'S JOB IS TO BAN ALL COMMERCIAL BUSINESSES ON THE DRAGON, SO THP TICKETS INCREASED 11,400% IN BLOUNT COUNTY. THP'S STALKER RADAR OPERATOR MANUAL CONFESSED THAT RADAR CANNOT MEASURE THE SPEED OF VEHICLES WITHIN 18 MPH OF ACTUAL SPEED. WATCH THIS SPACE FOR FULL EVIDENCE FILE. UPDATE 7 MARCH 2011
There's only 1 way to raise the 30 mph speed limit on US129 at Deals Gap, back to the original 55 mph. This method works very fast, is free, no begging or groveling required. You just tell the govt what to do, and the govt bows down before you.
This method to raise speed limits is endorsed by the Tennessee Supreme Court, the US Dept of Transportation and TDOT:
The Secret Solution They at ETR don't want you to know about? Fight your God-damned $250 speeding ticket -- the RIGHT way.
The only valid speed limit is one based on the 85th-Percentile Speed, which is the average speed of traffic. Speeding is 600% safer than driving a speed limit set too low, according to USDOT and Ralph Nader.
With THP increasing biker tickets 11,400% on the Dragon, there's plenty of criminal defendants to fight in court. Too bad they're all sheep -- or angry tourists who "can't afford" a 2nd vacation to play in traffic court.
"The MAINTAIN TOP SAFE SPEED sign may be used on highways where conditions are such that it is prudent to evacuate or traverse an area as quickly as possible." �USDOT, FHA, Manual on Uniform Traffic Control Devices, Chapter 2I. Emergency Management Signing, 2003 Ed
The Dragonater is webmaster for AmericanAutobahn.com, a book by Mark Rask, as seen on History Channel at a LEGAL 212 mph on a public highway, at night, in the rain, in commuter traffic, with a better safety record than 55 mph on US Interstates.
Brian McVicar The Muskegon Chronicle November 30, 2010
GRAND HAVEN, MICH. — Grand Haven Public Safety Director Dennis Edwards says he was placed on administrative leave last week because he ordered officers not to write speeding tickets on streets where he said doing so would violate state law.
In an e-mail to The Chronicle, Edwards said he and City Manager Pat McGinnis clashed over Edwards’ request that officers not enforce the speed limit on portions of 35 streets, including Robbins Road and Beechtree Street, until the city conduct speed studies as “required by a 2006 law.”
Edwards said McGinnis put him on leave immediately after Edwards issued the no-ticket order. “Directly afterwards, he ordered Captain (Rick) Yonker to tell the officers to resume writing tickets,” Edwards said.
Edwards, who has served as public safety director since 2004, was placed on administrative leave Nov. 24. City officials have declined to say why Edwards was placed on leave, whether he will be allowed to return to work, or whether he’s still being paid.
Edwards, who said in the e-mail that he is out of the country on vacation, indicated he plans on consulting with his attorney next week when he returns to Michigan.
He said speed limits on some city streets don’t comply with Public Act 85, a 2006 law that adjusted the way the limits are determined in Michigan. Asking officers to ticket motorists on those streets puts the city at risk of legal trouble, Edwards said.
“A police officer cannot be ordered to violate a law or take any action which is unethical, immoral or illegal,” he said. “To do so leaves the department, its officers and this city at risk from lawsuit and violations of civil rights.”
The Chronicle was unable to reach McGinnis for comment.
Edwards said he and McGinnis disagreed over the speeding issue, and at one point, McGinnis ordered him not to pursue it further.
“I have tried to deal with the issue privately with Pat but after he failed to take any action after first ordering me to not look any further at the issue, I find myself defending my action,” he said. “Pat, being the master of spin, is now trying to ruin my reputation and it is necessary for me to clear up the innuendo that I have done something wrong.”
Michigan State Police Lt. Gary Megge said although the 2006 law says cities are responsible for making sure speed limits comply with the law, disagreements abound.
“There are several cities that have made an effort to correct the speed limit,” he said. “There are also some communities that simply say, ‘I’m not changing anything.’”
Public Act 85 established two criteria for determining speed limits: a speed study or counting the number of access points, such as driveways or street intersections, within a half-mile, Megge said.
Under one formula, if there are more than 60 access points within a half-mile, the speed limit would be 25 mph, he said. A half-mile stretch of road with access points numbering between 45 and 59 would have a 35-mph speed limit.
Under the other option, the speed limit would be set at or below what a study shows 85 percent of drivers travel, he said.
Cities “are obligated to follow the law, do it correctly, which in turn will maximize traffic safety,” Megge said.
Speeding is SIX TIMES SAFER than driving a posted speed limit, says the U.S. Govt and Ralph Nader:
Section 2B.13 Speed Limit Sign - Standard: After an engineering study has been made inaccordance with established traffic engineering practices, the Speed Limit (R2-1) sign (see Figure 2B-1) shall display the limit established by law, ordinance, regulation, or as adopted by the authorized agency. When a speed limit is to be posted, it should be within 10 km/h or 5 mph of the 85th-percentile speed of free-flowing traffic.
Determining the 85th Percentile Speed - The maximum speed limits posted as the result of a study should be based primarily on the 85th percentile speed, when adequate speed samples can be secured. The 85th percentile speed is a value that is used by many states and cities for establishing regulatory speed zones. Use of the 85th percentile speed concept is based on the theory that the large majority of drivers are reasonable and prudent, do not want to have a crash, desire to reach their destination in the shortest possible time. A speed at or below which 85 percent of people drive at any given location under good weather and visibility conditions may be considered as the maximum safe speed for that location. Speed checks are of prime importance, because they represent the consensus of drivers as to the safe speed at a given location, and provide the basic data on which the regulatory speed zone is based. Operation of Speed Check Stations: Normal speed checks should be made on average week days at off-peak hours, be made under favorable weather conditions, include only “free floating” vehicles, include a minimum of 125 cars in each direction at each station, be discontinued after two hours if radar is used, or after four hours if a traffic counter that classifies vehicles by type is used — even if 125 cars have not been timed. The vehicles checked should be only those in which drivers are choosing their own speed (“free floating”). When a line of vehicles moving closely behind each other passes the speed check station, only the speed of the first vehicle should be checked, since the other drivers may not be choosing their own speed. Cars involved in passing or turning maneuvers should not be checked, because they are probably driving at an abnormal rate of speed. Trucks and busses should be recorded separately and should not be included as part of the 125-car total. Speed check stations must be strategically located to show all the important changes in prevailing speeds. Use TxDOT Form 1882, “Radar Motor Vehicle Speed Field Tally Sheet,” to record tally marks beside the observed speed for each vehicle.
Dianna Ruth Brown vs. City of Oak Ridge - TN Court of Appeals at Knoxville 2005. Diana Ruth Brown (“the defendant”) was stopped by a City of Oak Ridge police officer and cited for speeding. Following an adverse decision in municipal court, the defendant appealed to the trial court. The trial court ruled that the defendant could not pursue, in the trial court, her assertion and defense that the posted speed limit of 45 mph was not legally established. Subsequently, that court found her guilty of speeding and imposed its judgment. The defendant appeals. Both sides raise issues. We vacate and remand for further proceedings.
Illiterate fascists and communists on city council in Oak Ridge TN forced to raise speed limits to comply with TDOT's 85th Percentile Speed - In December 2010, City Council enacted a change in the city speed limit ordinance for this road segment. After opposing the change in the first round of two votes on the proposal, I supported it in November and December, after discovering that I’d been working under a misconception. A bit contrary to what the November 17th Oak Ridger reported, my misconception (which appears to have been shared by other Council members and many citizens) was to think that City Council has any discretion in choosing a speed limit on the west Turnpike. We were all wrong. That road is a state highway. Under Tennessee law, the speed limit for a state highway is set by the state. he staff report says that the Federal Highway Administration’s Manual on Uniform Traffic Control Devices (MUTCD) provides guidance on setting speed limits “and states that speed zones shall be established in accordance with traffic engineering practices and shall include analysis of the current speed distribution of free-flowing vehicles.” Staff notes that the measured 85th percentile speeds were about 13 mph above the posted speed in the 40 mph zone and 3 and 9 mph above the posted speed in the 50 mph zone.
Oak Ridge TN forced to raise speed limits to comply with TDOT's 85th Percentile Speed - The Traffic Safety Advisory Board held a long and thoughtful discussion of the west Turnpike speed limits, deciding to recommend sticking with the TDOT limits, but continue to monitor the situation. In the 40-mph section, the 85th percentile speed is about 13 mph above the speed limit, suggesting that a higher limit would be right for the road. However, it seems to be agreed that the redesigned road in that section is safer than it used to be and that the road’s physical alignment is consistent with a 60-mph road (which helps explain why so many people are driving so far over the limit).
Solomon curve - In 1964, Solomon researched the relationship between average speed and collision rates of automobiles and plotted the results.[2] While others have attempted to quantify the relationship between average speed and collision rates, Solomon's work was both "the earliest and best known".[3] Solomon conducted a comprehensive study of more than 10,000 accident-involved drivers and their vehicles and how other roadway, driver, and vehicle characteristics affect the probability of being involved in a crash.[4] He found that the probability of being involved in a crash per vehicle-mile as a function of on-road vehicle speeds follows a U-shaped curve with speed values around the median speed having the lowest probability of being in a crash.[5] Although typically called the Solomon curve, the U-shaped curve has also been referred to as the Crash Risk Curve.[6]
Synthesis of Speed Zoning Practice - Speed zoning is the establishment of reasonable and safe speed limits based on an engineering study. Speed zoning incorrectly used on streets and highways can lead to driver non-compliance with speed limits. This study reviewed the principles and practices used to set speed limits. It is based mainly on a survey of traffic officials conducted by the American Association of State Highway and Transportation Officials (AASHTO) Subcommittee on Traffic Engineering. All States and 44 city and county agencies responded to this survey.
Synthesis of Safety Research Related to Speed and Speed Management - This document provides a review of safety research related to speed and speed management. This review builds upon a similar synthesis prepared in 1982. This synthesis highlights the relationships among vehicle speed and safety; factors influencing speeds; and the effects on speed and crashes of speed limits, speed enforcement, traffic calming and other engineering measures intended to manage speed. In a landmark study of speed and crashes involving 10,000 drivers on 600 miles (970 kilometers) of rural highways, Solomon (1964) found a relationship between vehicle speed and crash incidence that is illustrated by a U–shaped curve. Crash rates were lowest for travel speeds near the mean speed of traffic, and increased with greater deviations above and below the mean. Crash–involvement rates decreased with increasing speeds up to 65 mi/h (105 km/h), then increased at higher speeds. Further, Solomon reported that the results of his study showed that "low speed drivers are more likely to be involved in accidents than relatively high speed drivers." Cirillo (1968) in a similar analysis of 2,000 vehicles involved in daytime crashes on interstate freeways confirmed Solomon's results, extending the U–shaped curve to interstate freeways.
Implementing field work in teaching Transportation Engineering cours - The Transportation engineering course is an upper division technical elective for the civil engineering concentration at the University of Tennessee at Martin. Classically, the Transportation Engineering course has been taught in the classroom through a format consisting only of lectures, homework, and exams. Transportation engineering course material includes many traffic studies that require field work to comprehend. A need for having a hands-on experience in this class was found necessary. This paper describes the vital value of field work to the students by implementing hands on transportation field projects. Two main projects were adopted: (1) spot speed study and (2) traffic signal design and assessment. Collecting the data had to be done without any influence on the actual speeds and drivers’ behavior. This is accomplished by choosing a location behind a tree or building or inside the car.
Is Bosque Farms, NM a Speed Trap? A Spot Speed Study Report - Two hundred speed measurements of free-flowing northbound traffic were taken near Sopa’s restaurant in November, 2009, in accordance with accepted Spot Speed Study criteria. These data were analyzed using a spreadsheet. The average speed is 48 mph, 3 mph above the posted speed limit. Where speed limits are normally based on the 85th Percentile (here, 52 mph), average speed occurs here at the 24th Percentile. Based on this data and its analysis, the current posted speed limit cannot be described as safety based, i.e., it is not set for the purpose of maximizing traffic safety, the claimed intent of such speed limits. Assuming that the data is reasonably representative of the free-flow speeds, the current posted speed limit - particularly with the excessively high level of speed enforcement - can be described as DETRIMENTAL to traffic safety. The Author does not personally consider this Study to be a comprehensive Traffic Safety Audit, i.e., not sufficient for speed limits changes, but DOES consider it to be sufficient to conclusively show the existing speed limit to be either valid or artificial. The New Mexico DOT, however, DOES say that it’s enough for setting speed limits, in its March, 2008, “Signing and Striping Manual”, page 67.
Frustrated Driver Files Federal Lawsuit Against US129 Speed Trap - The Atlanta Journal-Constitution reports that a retired dentist has filed a federal lawsuit against the small Georgia town of Arcade, alleging that the Athens area municipality used “overzealous and improper tactics in creating a speed trap” along U.S. Highway 129. According to the AJC, Arcade with four police officers generated $192,000 or 28% of its $675,000 annual budget from fines and forfeitures in 2009. In 2008, the percentage was 40%. Local business owners complain that Arcade’s zealous traffic enforcement prompts drivers to steer clear of the town, thereby hurting private business. If successful this private lawsuit could be turned into a class action and Arcade could face punitive damages.
Federal lawsuit targets 'overzealous' speed trap on US129 - ARCADE, Ga. — Ten police officers used to roam the busy stretch of highway that slices through this tiny northeast Georgia town, writing traffic tickets that helped pay for a spacious city complex but also infuriated local businesses and repulsed drivers. "Someone had to finally take a stand for all those who have been targeted by the city of Arcade police," said Joe Moses, a retired dentist who filed the complaint in December. It contends officers used "overzealous and improper tactics in creating a speed trap" along U.S. Highway 129. "It's made people scared to death to go through Arcade," said Darlene Craven, the owner of Darlene's Family Hair Care and Tanning Salon, which sits along Arcade's main road. City attorney Jody Campbell declined to comment on the pending lawsuit, and the city has yet to respond to the complaint in court. The city's mayor did not return several messages seeking comment. Moses was driving home from visiting his daughter in Athens on a foggy December 2008 night when he noticed a police car trailing him, he said in the complaint. He pulled to the side of the road after driving a few hundred yards to let the squad car drive by him, only to watch the officer pull behind him, he said. First, he said he was cited for driving too slowly. And when he objected, Moses said the officer tagged him with another citation: Failing to have working tag lights. Moses claims both citations were erroneous. And he said that he asked two police officers in a nearby town to check his tag lights 30 minutes later, and both confirmed in writing that his lights complied with state requirements. Even with a downsized police force, Arcade still earns a hefty chunk of its revenue from traffic fines. Some $192,000 of the city's $675,000 total revenues in 2009 came from fines and forfeitures. In 2008, the city reaped more than $380,000 in revenues from fines and forfeitures, about 40 percent of the total revenue collected that year, according to the audit. Connie Whitey, who has lived in town since 1991, said she hopes the lawsuit doesn't stoke new fears about her town. She said during the police force's heyday, revenue at her liquor store Bulldog Package dropped 40 percent as drivers steered clear of Arcade. "What did we need 10 police officers for? They ruined the name of Arcade, and it's taken us years to rebuild," she said. "Arcade definitely was a speed trap. It still can be, but it's not as bad as before."
"For decades, speed was the subject of the most widespread slogans drummed into the public. 'Speed kills' and 'slow down and live' are familiar ones peddled by the National Safety Council.... The findings showed a more complex picture of the role of speed than had ever been assumed before. Accident involvement rates are at a minimum at speeds between fifty and seventy five miles per hour.... Although obviously the severity of accidents is greater at higher speeds, the study revealed that considering accident frequency rates and severity, the number of injuries per vehicle miles traveled is at its minimum. Enforcement of the law brings no pressure on the car makers to increase the safety of their vehicles." –Ralph Nader, from his book, Unsafe at any Speed: The Designed-In Dangers of the American Automobile (2nd Ed), quoting David Soloman's report for the Federal Highway Administration (FHwA), "Accidents on Main Rural Highways Related to Speed, Driver and Vehicle"
"One hundred forty years ago, the Royal Society in England warned against the railroads, claiming that at speeds over 30 miles per hour, the air supply to the passenger compartment would be cut off and people would die from asphyxiation. And the college of physicians in Munich, for its part, warned that at 30 mph, travelers would suffer headaches, vertigo and possible lose their sight because of a blurring effect. Over 30 mph great catastrophies were predicted, because everyone knew that even a twig would shatter the wheels." -Jules Burgman, ABC News, NASA Langley Research Center, The Impact of Science on Society, NASA SP-482, NASA Scientific and Technical Information Branch, National Aeronautics and Space Administration, 1985
40802. (a) A "speed trap" is either of the following:
(1) A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.
(2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This paragraph does not apply to a local street, road, or school zone.
(b) (1) For purposes of this section, a local street or road is ( ) one that is functionally classified as “local” on the “California Road System Maps,” that are approved by the Federal Highway Administration and maintained by the Department of Transportation. When a street or road does not appear on the “California Road System Maps,” it may be defined as a “local street or road” if it primarily provides access to abutting residential property and meets the following three conditions:
(A) Roadway width of not more than 40 feet.
(B) Not more than one-half of a mile of uninterrupted length. Interruptions shall include official traffic control signals as defined in Section 445.
(C) Not more than one traffic lane in each direction.
(2) For purposes of this section "school zone" means that area approaching or passing a school building or the grounds thereof that is contiguous to a highway and on which is posted a standard "SCHOOL" warning sign, while children are going to or leaving the school either during school hours or during the noon recess period. "School zone" also includes the area approaching or passing any school grounds that are not separated from the highway by a fence, gate, or other physical barrier while the grounds are in use by children if that highway is posted with a standard "SCHOOL" warning sign.
(c) (1) When all of the following criteria are met, paragraph (2) of this subdivision shall be applicable and subdivision (a) shall not be applicable:
(A) When radar is used, the arresting officer has successfully completed a radar operator course of not less than 24 hours on the use of police traffic radar, and the course was approved and certified by the Commission on Peace Officer Standards and Training.
(B) When laser or any other electronic device is used to measure the speed of moving objects, the arresting officer has successfully completed the training required in subparagraph (A) and an additional training course of not less than two hours approved and certified by the Commission on Peace Officer Standards and Training.
(C) (i) The prosecution proved that the arresting officer complied with subparagraphs (A) and (B) and that an engineering and traffic survey has been conducted in accordance with subparagraph (B) of paragraph (2). The prosecution proved that, prior to the officer issuing the notice to appear, the arresting officer established that the radar, laser, or other electronic device conformed to the requirements of subparagraph (D).
(ii) The prosecution proved the speed of the accused was unsafe for the conditions present at the time of alleged violation unless the citation was for a violation of Section 22349, 22356, or 22406.
(D) The radar, laser, or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility.
(2) A "speed trap" is either of the following:
(A) A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.
(B) (i) A particular section of a highway or state highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within one of the following time periods, prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects:
(I) Except as specified in subclause (II), seven years.
(II) If an engineering and traffic survey was conducted more than seven years prior to the date of the alleged violation, and a registered engineer evaluates the section of the highway and determines that no significant changes in roadway or traffic conditions have occurred, including, but not limited to, changes in adjoining property or land use, roadway width, or traffic volume, 10 years.
(ii) This subparagraph does not apply to a local street, road, or school zone.
Amended Sec. 3, Ch. 521, Stats. 2000. Effective January 1, 2001. Amended Sec. 49, Ch. 491, Stats. 2010. Effective January 1, 2011. The 2010 amendment added the italicized material, and at the point(s) indicated, deleted the following: “is defined by the latest functional usage and federal-aid system maps submitted to the federal Highway Administration, except that when these maps have not been submitted, or when the street or road is not shown on the maps, a “local street or road” means a street or road that”
This chapter includes a description of how to conduct an engineering and traffic investigation as the basis for establishing a regulatory speed zone along a roadway. This investigation is commonly called a “speed zone study.”
Sound and generally accepted engineering practices are an integral part of such speed zone studies and are discussed in Section 4 of this chapter.
Scope of Study The speed zone study should cover the entire length of a potential zone, even though an analysis of the data may later indicate that the actual limits of the area that requires zoning are less than the limits of the potential zone.
A speed zone study consists of the following principle areas:
determining the 85th percentile speed
crash study
developing of strip maps
speed zone design
rechecks of speed zones.
This chapter contains sections describing each of these areas.
The maximum speed limits posted as the result of a study should be based primarily on the 85th percentile speed, when adequate speed samples can be secured. The 85th percentile speed is a value that is used by many states and cities for establishing regulatory speed zones.
Theory
Use of the 85th percentile speed concept is based on the theory that:
the large majority of drivers:
are reasonable and prudent
do not want to have a crash
desire to reach their destination in the shortest possible time
a speed at or below which 85 percent of people drive at any given location under good weather and visibility conditions may be considered as the maximum safe speed for that location.
Statistical Rationale
The results of numerous and extensive “before-and-after” studies substantiates the general propriety and value of the 85th percentile criterion.
Statistical techniques show that a normal probability distribution will occur when a random sample of traffic is measured. From the resulting frequency distribution curves, one finds that a certain percentage of drivers drive too fast for the existing conditions and a certain percentage of drivers travel at an unreasonably slow speed compared to the trend of traffic.
Most cumulative speed distribution curves “break” at approximately 15 percent and 85 percent of the total number of observations (see Figure 3-1). Consequently, the motorists observed in the lower 15 percent are considered to be traveling unreasonably slow and those observed above the 85th percentile value are assumed to be exceeding a safe and reasonable speed. Because of the steep slope of the distribution curve below the 85th percentile value, it can readily be seen that posting a speed below the critical value would penalize a large percentage of reasonable drivers.
Figure 3-1. Cumulative speed distribution curve
The example illustrated in Figure 3-1 shows that a speed posted for 7 miles per hour below the 85th percentile speed would unfairly penalize 25 percent of the drivers who would otherwise be considered to be driving at a reasonable and prudent speed. Therefore, for purposes of speed zoning, the maximum posted speed should be as near as possible to the 85th percentile value, and whenever minimum speed zones are used, the minimum posted speed should be within 5 miles per hour of the 15th percentile value. (See Chapter 2, Section 2, for additional information on Minimum Speed Limits. )
Experience proves these findings valid and shows that the 85th percentile speed is the one characteristic of traffic speeds that most closely conforms to a speed limit which is considered safe and reasonable.
Speed Checks for Existing Highways
Speed checks are of prime importance, because they:
represent the consensus of drivers as to the safe speed at a given location
provide the basic data on which the regulatory speed zone is based.
Speed Checks for New or Reconstructed Highways
Speed checks on new or reconstructed highway sections should not be performed until it is apparent that the traffic speeds have stabilized.
As an interim measure, the statewide maximum speed or the design speed of the roadway may be posted on these sections while using warning signs with advisory speed signs to alert drivers to any hazards. In any case, trial-run data should be collected and considered by a traffic engineer before interim speed zones are posted. If the interim speed is lower than the statewide maximum speed, then the interim speed must be established by city ordinance or Transportation Commission minute order. Once the traffic speeds have stabilized, normal speed zone studies should be completed and evaluated by a traffic engineer before the final speeds are posted.
Speed checks should be made as quickly as possible, but it is not necessary to check the speed of every car. In many cases, traffic will be much too heavy for the observer to check all cars.
Operation of Speed Check Stations
Normal speed checks should:
be made on average week days at off-peak hours
be made under favorable weather conditions
include only “free floating” vehicles (see following paragraph)
include a minimum of 125 cars in each direction at each station
be discontinued after two hours if radar is used, or after four hours if a traffic counter that classifies vehicles by type is used — even if 125 cars have not been timed.
The vehicles checked should be only those in which drivers are choosing their own speed (“free floating”). When a line of vehicles moving closely behind each other passes the speed check station, only the speed of the first vehicle should be checked, since the other drivers may not be choosing their own speed. Cars involved in passing or turning maneuvers should not be checked, because they are probably driving at an abnormal rate of speed.
Trucks and busses should be recorded separately and should not be included as part of the 125-car total.
Location of Speed Check Stations
A complete picture of speeds in an area can only be obtained through the proper location of speed check stations. Ideally, speed checks at an infinite number of locations would be desirable; however, since this is not practical, speed check stations must be strategically located to show all the important changes in prevailing speeds.
In urban areas and on approaches to cities, speed check stations:
should generally be located at intervals of 0.25 mile or less if necessary to insure an accurate picture of the speed pattern
should be located midway between signals or 0.2 miles from any signal, whichever is less, to ensure an accurate representation of speed patterns
should take into account the locality and the uniformity of physical and traffic conditions
may be determined by trial runs through the area if volumes are too low or if a recheck of speeds is all that is needed
should be checked midway between interchanges on the main lanes of expressways and freeways.
In rural areas, speed check stations:
may be at intervals greater than 0.25 mile, as long as the general speed pattern is followed
may only be necessary at each end and the middle point if the characteristics of the roadway are consistent throughout the entire section
may be determined by trial runs through the area if the characteristics of the roadway are consistent throughout the entire section and a speed check in that section indicates that 125 vehicles cannot be checked within the two hours if radar is used, or after four hours if a traffic counter that classifies vehicles by type is used.
Measuring Speeds
Radar speed meters which operate on the radar principle are normally used for making speed checks. These devices operate from the power of an automobile battery and give direct readings of vehicle speeds in miles per hour which are accurate to within 2 miles per hour.
New technologies may be used in determining vehicular speeds for use in calculating 85th percentile speed if the measured speeds are accurate to within 2 miles per hour and the gap between vehicles is 3 seconds or greater. Examples of new technologies are counter-classifiers with the capability of classifying vehicles, determining vehicular speeds, and differentiating the gap between vehicles. These devices may include video imaging, tube counters, magnetic counters, inductive counters, etc.
Recording Measured Speeds
Use TxDOT Form 1882, “Radar Motor Vehicle Speed Field Tally Sheet,” to record tally marks beside the observed speed for each vehicle. The form is available via hyperlink (click on the form number above) or from the Traffic Operations Division.
Figure 3-2, Example of completed Radar Motor Vehicle Speed Field Tally Sheet, shows an example.
Calculating 85th Percentile Speed
Use the following procedure to calculate the 85th percentile speed:
Add the tally marks as shown in the “Cumulative Total” column in Figure 3-2, Example of completed Radar Motor Vehicle Speed Field Tally Sheet. Note that the marks are added from the bottom up.
For each “Cumulative Total” column, calculate 85 percent of the total number of vehicles checked. EXAMPLE: Figure 3-2 shows that 125 cars were counted in the northbound direction. So 85 percent would be 106 (125 0.85 = 106). Thus, the 106th car (counting up from the bottom) represents the 85th percentile speed.
Determine the speed at which the car representing the 85th percentile was traveling. Again from the northbound example in Figure 3-2, the 106th car was traveling at 48 miles per hour. Thus, 48 miles per hour is the 85th percentile speed.
On the back of the Radar Motor Vehicle Speed Field Tally Sheet there is an “85th Percentile Calculation Table,” which may be used to readily determine the 85th percentile car if the total number is between 80 and 239.
In no case shall the 85th percentile speed be interpolated between two speeds in the M.P.H. column.
After the locations of the speed check stations have been decided upon and the speed checks have been made, the 85th percentile speeds should be calculated immediately in the field. By doing so, it is possible to get an idea of what the speed curve will look like and to determine if more speed check stations are needed.
Recording the Information
Record the speed check data on the strip map as described in Section 3 of this Chapter. The blocks shown on the strip map contain the 85th percentile speed, the speed of the fastest car checked, and the number of cars checked (reading from top to bottom in order). Show a block for each speed check location for each direction of travel measured.
Figure 3-2. Example of completed Radar Motor Vehicle Speed Field Tally Sheet
Incomplete Data
When the data appear incomplete because of a large change in the 85th percentile speed between speed check stations or an unusually high or low 85th percentile speed at a particular point, additional speed checks should be made at new locations or repeat checks should be made at certain locations previously checked to clarify the speed picture.
Speed Zone Approval
Speed zones on the state highway system, including turnpikes under TxDOT’s authority, may be set by Transportation Commission minute order or by the city, depending on the circumstance (as shown in the following table).
If the speed zone is outside a city, then it is established by Transportation Commission minute order.
Appeal from the Circuit Court for Anderson County No. A3LA0578
James B. Scott, Jr., Judge
No. E2004-01574-COA-R3-CV - FILED AUGUST 19, 2005
Diana Ruth Brown (“the defendant”) was stopped by a City of Oak Ridge police officer and cited for speeding. Following an adverse decision in municipal court, the defendant appealed to the trial court. The trial court ruled that the defendant could not pursue, in the trial court, her assertion and defense that the posted speed limit of 45 mph was not legally established. Subsequently, that court found her guilty of speeding and imposed its judgment. The defendant appeals. Both sides raise issues. We vacate and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
CHARLES D.SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P.FRANKS,P.J., and SHARON G. LEE, J., joined.
Charles Terry Webber, Knoxville, Tennessee, for the appellant, Diana Ruth Brown. Kenneth R. Krushenski, City Attorney, and Tammy M. Dunn, Senior Staff Attorney, Oak Ridge, Tennessee, for the appellee, City of Oak Ridge, Tennessee.
OPINION
I.
On July 11, 2003, the defendant was driving on South Illinois Avenue near Bethel Valley Road in Oak Ridge when she was stopped by a city police officer. He cited her for speeding, i.e., going 67 mph in a 45 mph zone. It is undisputed that South Illinois Avenue is a state highway, namely State Route 62.
On September 8, 2003, the defendant was convicted of speeding in the Oak Ridge Municipal Court and fined $30 and costs. She appealed her conviction to the trial court. In the trial court, the defendant asserted that the posted speed limit on State Route 62 had not been established in compliance with applicable law. The trial court refused to permit the defendant to pursue her argument, opining that it did not have jurisdiction to entertain such a defense:
[M]y ruling was that this belongs in Chancery Court in Davidson County. I don’t set the policy as it relates to those things. And I really don’t think it’s an issue that addresses itself to the venue. State matters, just like some of the other matters that we deal with, it’s usually the Chancery Court on policy dealing with setting speed limits and whether or not there has been a violation of the discretion as it relates to that. So the issue I have within my control has to do with the speeding. The other things have to do with whether or not this policy of the State of Tennessee was one that should have been exercised as it was.
Following a bench trial, the court found the defendant guilty of speeding and imposed a fine of $15 and costs. From this judgment, the defendant appeals.
II.
While the parties argue a number of legal issues, we believe the dispositive issue in this case is whether the defense asserted by the defendant – that the posted speed limit was not legally established – is a defense that can be asserted in a case involving a charge of driving at a speed in excess of a posted speed limit. This is a question of law; hence, our de novo review is undertaken1 with no presumption of correctness as to the trial court’s judgment. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
III.
It is axiomatic that a defendant has a right to attempt to prove a properly-asserted, legallyrecognized defense to an action asserted against the defendant. Thus, we must decide if the defense asserted by the defendant is a bar to the speeding violation with which she was charged.
Footnote 1. The speeding citation in this case specifically charges that the defendant committed the “offense” of “speeding 67 mph in 45 mph zone.” The City’s brief does not expressly argue that, regardless of whether the posted 45 mph speed limit was validly established or not, the defendant’s speed, i.e., 67 mph, nevertheless still exceeded the maximum speed permitted on a state highway of the type of South Illinois Avenue; and that she can, as a consequence of this fact, still be found guilty of “speeding.” See Tenn. Code Ann. § 55-8-152(a) & (c) (2004). Cf. Commonwealth v. Kondor, 438 Pa. Super. 147, 651 A.2d 1135 (Pa. Super. Ct. 1994). Since the parties disagree sharply as to whether South Illinois Avenue is a “controlled-access highway,” see Tenn. Code Ann. § 55-8-152(c), and since the City does not make the argument alluded to above, we decline to address the issue of whether the defendant can be found guilty of “speeding” in the absence of a validly-established 45 mph speed zone. However, we would again note that the defendant was specifically charged with driving at a speed in excess of that permitted by a “45 mph zone.”
If there is a posted speed limit, and no question is raised as to whether that posted speed limit was properly established, there is a presumption of regularity and validity; in such cases, proof of the posted speed limit gives rise to a rebuttable presumption of validity. Thomas v. Harper, 385 S.W.2d 130, 138 (Tenn. Ct. App. 1964). However, we have recognized that the posting of a speed limit must be pursuant to “statutory authority”:
Where there is evidence of a posted speed limit and no question is made as to its regularity or validity there is a presumption that the posted speed is in compliance with the law. However, if the posted speed sign was placed without statutory authority, the failure of a motorist to heed its restrictions could be negligence but he should not be penalized with the consequences of the rule of negligence per se of violating a statute, since a statutorily established speed limit prevails over speed signs erected without statutory authority.
Johnson v. Calfee, No. 118, 1988 WL 36472, at *1 (Tenn. Ct. App. E.S., filed April 21, 1988) (internal citations omitted).
Johnson involved a complaint seeking damages for injuries sustained in a motor vehicle accident. Id. The defendant’s principal defense was that the plaintiff was driving recklessly and speeding. Id. The speed limit on the road where the accident occurred was critical to the jury’s determination. Id., at *2. A police officer testified that although the speed limit on the road was 55 mph unless “otherwise posted,” there was a sign approximately one mile from the accident site indicating that the speed limit was 45 mph. Id., at *1. However, the county court clerk testified that there was no legislative enactment authorizing the reduction in the speed limit along the relevant stretch of road. Id. He opined that the speed limit was actually 55 mph. Id. Despite a request from the plaintiff that the trial court instruct the jury that the speed limit was 55 mph, the court left the decision of whether it was 55 mph or 45 mph to the jury without furnishing the jury any guiding principles by which to make that decision. Id. Since a speed sign enacted without authority cannot be the basis for finding a party guilty of negligence per se, we held that the trial court had not properly charged the jury as to the law pertaining to the establishment of a speed limit. Id., at *1-2.
See alsoDeskins v. Williams, No. 03A01-9701-CV-00023, 1997 WL 559444, at *3 (Tenn. Ct. App. E.S., filed September 9, 1997).
We are not aware of a Tennessee appellate court decision in which a defendant cited for speeding has employed the defense that a posted speed limit was not validly established. However, other states have addressed the use of such a defense in speeding cases. A Virginia appellate court reversed the judgment of a trial court which had precluded a defendant charged with speeding from presenting evidence that a posted speed limit had not been lawfully established. Bahen v. City of Hampton, No. 0436-03-1, 2004WL 2381375, at *2 (Va. Ct. App., filed October 26, 2004). The trial court had excluded the proffered testimony of a city traffic engineer who planned to testify that no traffic engineering investigation of the relevant street had been conducted as required by law. Id., at *1. In holding that the trial court erred in excluding this testimony, the Virginia court stated as follows:
[A city traffic engineer’s] proffered testimony tended to prove, although not conclusively establish, that no traffic or engineering study had been performed as required by Code § 46.2-1300 in order to establish a thirty-mile-per-hour speed limit on West County Street.
Thus, the evidence was relevant and admissible, and the trial court erred by ruling that appellant could not challenge the speed limit and by refusing to admit or consider [the traffic engineer’s] evidence in order to rebut the presumption [that the speed limit had been legally decreased].
Id., at *2. See also State v. Morse, 153 Vt. 651, 572 A.2d 1342 (Vt. 1990) (where city clerk was unable to produce an engineering survey supporting the relevant speed limit, the defendant’s conviction for speeding was reversed); Commonwealth v. Kondor, 438 Pa. Super. 147, 651 A.2d 1135 (Pa. Super. Ct. 1994) (defendant charged with speeding could prevail if the Commonwealth could furnish no justification for posting a 35 mph speed limit because the department of transportation could not set speed limits arbitrarily).
We find these cases to be persuasive. In the instant case, the defendant attempted to pursue her defense that the speed limit was not properly established according to applicable law. We conclude that the defense asserted by the defendant is an appropriate defense to the speeding charge and that the trial court erred when it concluded that this issue could not be raised in that court. We pretermit all other issues raised by the parties.
We express no opinion as to whether the defendant can establish, to the satisfaction of the trier of fact, that the posted speed limit on State Route 62 was not properly established. As far as the City’s burden of proof is concerned, it can rely upon the presumption of validity referred to in Thomas. It will be the defendant’s obligation to rebut the presumption by proving that the posted speed limit was not properly established. If she fails to satisfy this obligation, the presumption prevails and proof of the posted speed limit establishes the speed limit.
IV.
The judgment of the trial court is hereby vacated, and this case is remanded to the court below for further proceedings in accordance with this opinion. Costs on appeal are taxed to the City of Oak Ridge.
UPDATE: Chief Justice Roberts allegedly jumped ship from his Republicon party to vote with the Demorats, because he wants people to hate Hussein Obama Soetoro so much they will be stampeded to vote for Willard Mittens Romney (THE FIRED AUTHOR OF OBAMACARE). Note that private car insurance has never been called a "tax", so the Obamacare opinion has no precedential value. Tennessee already passed a law to ban Obamacare. I've now contacted my congresscritters with a campaign contribution (wink), to ensure a bill passed to require all taxslaves to purchase Pirate News on PayPal (a Bilderburg subsidiary).
Coincidentally, Obamacare was allegedly passed one day after Congress voted that US attoney General Eric Holder is guilty of felony contempt of Congress, for ordering federal police to supply 20,000 guns to the Mexican drug cartels, used to kill US cops and kill 10,000s of Mexican cops, politicians and journalists (copkilling is punished by the death penalty). Obama's Operation Fast & Furious is part of the ongoing Iran-Contra narcoterror drug-dealing crimes perpetrated by presidents Reagan/Bush/Clinton/Bush, supplying weapons to enemy nations (the crime of treason is punished by the death penalty).
"The federal government does not have the power to order people to buy health insurance. The federal government does have the power to impose a tax on those without health insurance. The payment is collected solely by the IRS through the normal means of taxation. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."
-Homosexual Chief Justice John Roberts, National Federation of Independent Business et al v Sebelius Secretary of Health and Human Services et al, US Supreme Court, 28 June 2012
"President Obama’s Affordable Care Act, March 23, 2010, is similar to President Fillmore’s Fugitive Slave Act, Sept. 18, 1850. The Supreme Court’s health-care decision, June 27, 2012, is similar to its Dred Scott decision, March 6, 1857. The chief plank in the original Republican Party platform, June 1856, defended traditional marriage and the value of human life, intending to 'prohibit in the territories those twin relics of barbarism: polygamy and slavery.' America was divided geographically between: Moderate Democratic South, which said slavery may be wrong, but the country has to live with it. Though personally against slavery, they believed the right to own slaves should be protected, just made rare and few, and treat slaves humanely. Extreme Democratic South, which said slavery is good and should be expanded into Western states. They tried to justify it by twisting Scriptures, citing that Abraham owned slaves but ignoring Jesus’ teaching to “do unto others as you would have them do unto you. Extreme Democrats Speaker Howell Cobb and Senate President William King pushed through the Fugitive Slave Act of 1850, which put the slavery issue squarely in the face of the anti-slavery North, whereas before it had become an out-of-sight and out-of-mind issue occurring on Southern plantations. The Fugitive Slave Law imposed severe penalties on those who aided escaped slaves with food or shelter in their passage to freedom in Michigan or Canada. It also made it a crime to interfere with the slave catchers’ recovery of runaway slaves. A person could be held criminally liable, fined $1000 and imprisoned for six months if they failed to report a neighbor suspected of helping slaves.”
-WorldNetDaily.com
"It would give to persons of the negro race, the right to enter every other State whenever they pleased, to sojourn there as long as they pleased, to go where they pleased the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to
hold public meetings upon political affairs, and to keep and carry arms wherever they went. No State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It
is now firmly settled by the decisions of the highest court in the State, that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant; and that the Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the plaintiff was a slave, and not a citizen."
-Chief Justice Taney, US Supreme Court, 7–2 decision, Dred Scott v. Sandford, 60 U.S. 393 (1857)
"Stocks of hospital companies rose and insurance companies will also gain millions of premium-paying customers."
-KnoxNews.com
Nearly 20 percent of new Obamacare waivers are gourmet restaurants, nightclubs, fancy hotels in Nancy Pelosi’s district - Of the 204 new Obamacare waivers President Barack Obama’s administration approved in April, 38 are for fancy eateries, hip nightclubs and decadent hotels in House Minority Leader Nancy Pelosi’s Northern California district. That’s in addition to the 27 new waivers for health care or drug companies and the 31 new union waivers Obama’s Department of Health and Human Services approved.
Latest beneficiary of ObamaCare waiver: AARP - No one seems to know what criteria HHS uses to grant or deny waivers to insurers from provisions in ObamaCare. The White House won’t release the names of those insurers and employers refused waivers or discuss denials at all. But maybe, just maybe, we could all agree that organizations that publicly pushed ObamaCare to approval should be ineligible to escape its consequences? The Daily Caller has learned that the Department of Health and Human Services (HHS) rate review rules, which it finalized on Thursday, exempt “Medigap” policy providers, like the American Association of Retired Persons (AARP), from oversight when such providers increase payment rates for their supplemental insurance plans.
Insurance providers who aren’t exempt from Obamacare’s rate review rules are required to publicly release and explain some health care payment rate increases. Let’s not forget that AARP had a distinct interest in seeing ObamaCare pass, because it helped eliminate competition for AARP’s supplemental insurance program.
Tennessee governor signs health care freedom into law - On Friday, Gov. Bill Haslam signed the Tennessee Health Care Freedom Act (SB0079), making health care freedom the law of the land in Tennessee. The Tennessee Health Care Freedom Act is a direct response to the passage of the Patient Protection and Affordable Care Act by Congress last year. While SB0079 does not seek to nullify the federal law in its entirety, the goal of the new law is to ensure that Tennesseans are free to choose whether to participate in the federal plan, choose another plan, or not participate in any plan at all.
"It is declared that the public policy of this state, consistent with our constitutionally recognized and inalienable right of liberty, is that every person within this state is and shall be free to choose or to decline to choose any mode of securing health care services without penalty or threat of penalty. It is declared that the public policy of this state, consistent with our constitutionally recognized and inalienable right of liberty, is that every person within this state has the right to purchase health insurance or to refuse to purchase health insurance. The government may not interfere with a citizen’s right to purchase health insurance or with a citizen’s right to refuse to purchase health insurance. The government may not enact a law that would restrict these rights or that would impose a form of punishment for exercising either of these rights. Any law to the contrary shall be void ab initio."
-Tennessee Health Care Freedom Act SB 0079 2011
Tennessee Rules of Evidence
Rule 411. Liability insurance.
Evidence that a person was or was not insured against liability is not admissible upon issues of negligence or other wrongful conduct. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Advisory Commission Comments. The rule restates Tennessee common law.
UPDATE 4 FEB 2011: Congress Investigates 733 Corporations Granted Waivers from Obamacare Costs - Rep. Cliff Stearns (R-Fla.) also noted the high percentage of Obama-supporting labor unions that received waivers – which exempt them from a provision in the new health care law that bans annual limits on what insurance plans will pay for medical coverage. “The American people repeatedly have been told that the new health care law is an effective and responsible plan for overhauling the nation’s health care system,” Rep. Stearns told CNSNews.com in a statement. “Yet, if the law is so good, why are so many waivers to the law being granted?” Stearns is chairman of the subcommittee on Oversight and Investigations for the House Energy and Commerce Committee, which is investigating the waivers granted to various companies, unions, non-profit organizations and states and municipalities. The United Federation of Teachers, representing New York City School Teachers, is the largest recipient of waivers so far. The UFT is a member of the American Federation of Teachers, a major contributor to the Democratic Party. In addition, several locals of the Service Employee International Union (SEIU) and the United Food and Commercial Workers union, both major contributors to Democratic candidates, received waivers.
UPDATE 31 JAN 2011: Judge strikes down healthcare reform law- A federal judge in Florida struck down President Barack Obama's landmark healthcare overhaul as unconstitutional on Monday in the biggest legal challenge yet to federal authority to enact the law. U.S. District Judge Roger Vinson ruled that the reform law's so-called individual mandate went too far in requiring that Americans start buying health insurance in 2014 or pay a penalty. "Because the individual mandate is unconstitutional and not severable, the entire act must be declared void," he wrote, "This has been a difficult decision to reach and I am aware that it will have indeterminable implications." Referring to a key provision in the Patient Protection and Affordable Care Act, Vinson sided with governors and attorneys general from 26 U.S. states, almost all of whom are Republicans, in declaring the Obama healthcare reform unconstitutional. "Regardless of how laudable its attempts may have been to accomplish these goals in passing the act, Congress must operate within the bounds established by the Constitution," Vinson, who was appointed to the bench by Republican President Ronald Reagan, ruled.
UPDATE 31 JAN 2011: Florida Attorney General - “Today’s ruling by Judge Vinson is an important victory for every person who believes in the freedoms granted to us by our Constitution,” said Attorney General Bondi. “This proves that the federal government requiring Americans to purchase health insurance is in fact unconstitutional. In addition, the bipartisan effort from Attorneys General across the country shows the federal government that we will not back down from protecting the constitutional rights of our citizens.”
UPDATE 31 JAN 2011: Court Order for Summary Judgment banning mandatory insurance as unconstitutional - State of Florida v US Department of Health and Human Services. James Madison, the chief architect of our federalist system, once famously observed: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
UPDATE 19 April 2010: Over 10,000 Tennesseans Join Lawsuit Against Mandatory Insurance - TN constitutional attorney and congressional candidate Van Irion filed what is shaping up to be a national class action in Federal court April 8th. The suit challenges the constitutionality of Obamacare on the basis that Congress is not authorized by the Constitution to regulate health care. Mr. Irion is asking the courts to re-evaluate the legal precedent related to the Commerce clause, arguing that current precedent in effect destroys the intent of the Constitution and specifically the 10th Amendment. “The lawsuit quickly became so popular among grassroots movements, that we set up a website to take plaintiff information and allow people to follow the progress of the case,” said Irion, The site name is Obamacare Class Action, or “OCA”, and can be found at obamacareclassaction.com. The form that captures the necessary information asks for name, address and email address. Phone number and company name is optional, but gives US companies the option of signing on as a corporate plaintiff. “Once the complaint is amended to include all the plaintiffs that have signed on, each name will be listed,” said Irion. “At that point, we expect to have tens of thousands of plaintiffs.” Since filing suit on April 8th, the site has added 1,000 plaintiffs a day on average
UPDATE 31 JAN 2011: Florida Federal Judge Rules ‘Entire’ Health Care Law Unconstitutional - The judge based his ruling on the law’s mandate that citizens must purchase health care, a requirement he said violates the Constitution. The ruling affects the 26 states who had joined together to file a case against the law, yet still has implications for the entire country. U.S. District Judge Roger Vinson ruled Congress overstepped its bounds by instituting the individual mandate, but also said the entire law was unconstitutional since the individual mandate is not “severable,” Fox News reports. Vinson did not go as far as to issue an injunction blocking the law from being implemented. “I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here,” Vinson wrote in the 78-page ruling. “Because the individual mandate is unconstitutional and not severable, the entire act must be declared void,” he added. “The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive,” he wrote.
UPDATE: 26 states join Obama health care lawsuit in Florida - Six more states joined a lawsuit in Florida against President Obama's health care overhaul on Tuesday, meaning more than half of the country is challenging the law. The announcement was made as House members in Washington, led by Republicans, debated whether to repeal the law. The six additional states, all with Republican attorneys general, joined Florida and 19 others in the legal action, Florida Attorney General Pam Bondi said. "It sends a strong message that more than half of the states consider the health care law unconstitutional and are willing to fight it in court," she said in a statement. The states claim the health care law is unconstitutional and violates people's rights by forcing them to buy health insurance by 2014 or face penalties. The other states that are suing are Alabama, Alaska, Arizona, Colorado, Georgia, Indiana, Idaho, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington.
"Government control of communications and transportation."
-Communist Manifesto, 6th Plank
"A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. It's about an individual's right to choose to participate. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers."
-Judge Henry Hudson, MEMORANDUM OPINION, Commonwealth of Virginia v. Sebelius, 3:10CV188-HEH, 13 Dec 2010
UPDATE December 2010 Report: Blount County sheriff has no liability insurance on fleet of 300 cars - Finance Director Jennings also brought another major financial problem to this meeting. The county self-insures for liability and workers compensation. It seems that our previous Financial Director did not do the actuarial reviews necessary to assure that there was enough money in these funds to pay our insurance claims. Worse, during the previous administration, nearly $900,000 in accounting "errors" were made in calculating the amount of money in these funds. These errors went undetected by the state auditors, until this year. After Jennings reviewed all these matters, he discovered there is no money in these funds, and it will take an injection of $2.6 million of taxpayers' hard earned money to make these funds sound.
UPDATE DEC 2010: Judge torpedoes Obamacare, warns of 'unbridled fed police' - "The controversial plan was adopted by Congress, whose members admitted they did not read the thousands of pages of new requirements, limits and restrictions before their vote. It was a plan by Texas Rep. Leo Berman, R-Tyler, that would create penalties of up to $5,000 in fines and up to five years in jail for anyone guilty of the "felony" of attempting "to enforce an act, order, law, statute, rule or regulation" of Obamacare, the president's plan that effectively nationalizes the health-care decision making process. A year ago, Wyoming adopted legislation pioneered in the state of Montana that exempts guns made, sold and kept in the state from any federal regulations. Then lawmakers attached a penalty of up to two years in jail or $2,000 in fines for "federal agents" who would try to enforce regulations that violate state law."
Dragonater Note: Dozens of States' attorneys general are now suing the US Govt to overturn an alleged federal law to require every US citizen to buy medical insurance from a private corporation, or pay $10,000s in fines and go to jail. Except for the megacorporations that got exemptions. Obamacare creates no medical insurance coverage and is merely another $15-billion/year tax increase, paid directly to the jew banksters at the private offshore "Federal" Reserve Bank Corporation.
Obamacare was written by the insurance companies as a bailout of the insurance companies, and Congress was not allowed to read it. If Big Brother wants free healthcare, it can hire its own doctors and open free clinics.
Since medical doctors genocide 2-million US citizens every year, why the fuck would anyone want to be forced to pay for their own Death Camp? That's like the jew Nazis pulling millions of gold teeth to pay for the bullets at the WW2 death camps.
"The most stunning statistic, however, is that the total number of deaths caused by conventional medicine is an astounding 783,936 per year. It is now evident that the American medical system is the leading cause of death and injury in the US. Using Leape's 1997 medical and drug error rate would add another 216,000 deaths, for a total of 999,936 deaths annually. Our estimated 10-year total of 7.8 million iatrogenic* deaths is more than all the casualties from all the wars fought by the US throughout its entire history. Our considerably higher figure is equivalent to six jumbo jets are falling out of the sky each day."
—Gary Null, PhD; Carolyn Dean MD, ND; Martin Feldman, MD; Debora Rasio, MD; Dorothy Smith, PhD, "Death by Medicine", March 2004 (plus 1-Million annual aborticides in USA)
http://www.lef.org/magazine/mag2004/mar2004_awsi_death_01.htm
"Harold Shipman, the British family doctor who murdered more than 200 of his patients to become one of the worst serial killers of all time, hanged himself in his prison cell."
—Reuters, "Britain's worst serial killer Dr Death dies in prison," Jan 13, 2004
http://abc.net.au/news/newsitems/s1024925.htm
UPPER MARLBORO, Md. (CN) - A man who was hurt in a car crash but was misidentified as a cancer patient claims security guards at Prince George's Hospital beat him up when he tried to leave the hospital to avoid chest surgery he didn't need - "to have a potentially cancerous mass removed from his chest." He adds that one guard repeatedly called him "bitch" as he roughed him up.
http://www.courthousenews.com/2010/08/25/29858.htm
50% of doctors and nurses still don't wash their hands.
http://women.webmd.com/news/20040706/study-doctors-dont-wash-hands-enough
http://www.timesonline.co.uk/tol/news/uk/scotland/article5375084.ece
Nurses Did Not Wash Hands, Blamed for Deaths of 90 British Patients
http://www.foxnews.com/story/0,2933,301482,00.html
247 Americans Die Every Day from Doctors not Washing Their Hands
http://www.naturalnews.com/027981_doctors_hand_washing.html
"He seemed like Superman, able to guide jumbo jets through perilous skies and tiny tubes through blocked arteries. As a cardiologist and United Airlines captain, William Hamman taught doctors and pilots ways to keep hearts and planes from crashing. He shared millions in grants, had university and hospital posts, and bragged of work for prestigious medical groups. An Associated Press story featured him leading a teamwork training session at an American College of Cardiology convention last spring. But it turns out Hamman isn't a cardiologist or even a doctor. The AP found he had no medical residency, fellowship, doctoral degree or the 15 years of clinical experience he claimed. He attended medical school for a few years but withdrew and didn't graduate. Journals that printed articles listing Hamman with M.D. and Ph.D. degrees are being contacted in case they want to correct the work. Beaumont removed him from a U.S. Department of Defense medical simulation contract that a physician at the hospital had obtained. Doctors who attended Hamman's sessions don't have to worry — the Accreditation Council for Continuing Medical Education will not revoke any education credits they earned."
-AP, Pilot duped AMA with fake M.D. claim, 12 Dec 2010
The Constitutions do not allow a govt to order a citizen to buy a product from another person. All unconstitutional laws are void from inception and may be ignored with immunity from prosecution. It is a crime of false arrest, malicious prosecution and official oppression for a govt employee to prosecute a citizen for alleged violation of an unconstitutional law. Ignorance of the law is not a valid defense in court, not even for govt employees.
There is no such State law requiring purchase of "car insurance" from private corporations -- it's called "financial responsibility" -- which has many "exemptions" under Title 55 Chapter 12 of Tennessee Code.
Basically, the only drivers required to have car insurance are non-govt employees, who can afford to buy it, who don't self-insure, who crash by their own fault and cause damage to someone else, and refuse to pay for that damage. Translation: If you don't cause a crash that injures someone else, or if you cause a crash and injure someone else but they sign a contract not to sue, or if you cannot afford to buy insurance, then you cannot be required to buy insurance. Equal protection means if a govt employee gets a right or immunity, then all citizens get the same right or immunity, no matter how wealthy they are. No one else is "required" to buy car insurance. Doh!
It's all a bluff by the insurance lobby and their bribery of govt employees to extort purchase of private insurance contracts under duress and threat of robbery, kidnapping or murder by Police State death squads. Duress voids all contracts.
If you don't like freedom, move to Commie China -- they own your mortgage or rental property anyway.
Half of US citizens cannor afford insurance. The only way to require mandatory car insurance is for the govt to pay every person a $50,000 paycheck.
Note that insurance salesman George Gordon admits that only 5% of insurance company revenue is used to pay claims. Attorney and presidential candidate Ralph Nader says insurance executives pay themselves $200,000 per WEEK salary, per person...not counting Warren Buffet, owner of GEICO Govt Employees Insurance Corp, who paid himself $30-BILLION per year, TAX FREE.
Virginia Atty. Gen. Ken Cuccinelli, who has filed a federal lawsuit seeking to overturn the health-care law signed by President Barack Obama last March, says Obama and the Congress that enacted that law--which mandates that individuals must buy government-approved health insurance plans--are seeking a power over the lives of Americans that even King George III did not claim to possess.
“We now have a Congress and a president who believe they can order you to buy a product when King George III and the Parliament of Great Britain, whom we rebelled against, acknowledged that they could not,” Cuccinelli said in a video interview with CNSNews.com.
In October, U.S. District Judge Henry E. Hudson heard arguments on the merits of Virginia's case against Obamacare.
Lawyers for the U.S. Justice Department, representing the Obama administration, argued that the federal government derives the power to force individual Americans to buy health insurance from the Commerce Clause of the U.S. Constitution, which authorizes Congress to regulate commerce with foreign nations, among the several states and with Indian tribes. Virginia Solicitor General Duncan Getchell Jr., representing Cuccinelli and the state of Virginia, argued that an individual who does not buy health insurance is not engaging in commerce and that the U.S. government has never before attempted to force individual Americans to buy any good or service.
Judge Hudson said he would issue a decision on the merits of the case by the end of this year. Cuccinelli told CNSNews.com that whichever way the judge rules, one side or the other will appeal to the U.S. Court of Appeals for the Fourth Circuit and then to the U.S. Supreme Court. Ultimately, the Supreme Court will need to decide whether in fact the Constitution does give the federal government a power it has never exercised before: the power to order individuals to buy things.
Virginia has enacted its own state law--directly countering President Obama’s health-care law--that specifically states that Virginians cannot be forced to buy health insurance.
In his interview with CNSNews.com, Cuccinelli pointed out that the First Continental Congress, convened by the American colonies in 1774, called for a boycott of British goods. When King George III and the British Parliament had the question legally analyzed by the British solicitor general, said Cuccinelli, they discovered that the colonists were within their legal rights to freely decide not to purchase a product—even if the king and Parliament would prefer that they did purchase it.
“When you have a case that’s unprecedented like this,” Cuccinelli said, referring to Virginia’s suit against Obamacare, “you literally span the length and breadth of American history in discussing the meaning of the particular power at issue. And if you go back before 1776, just two years, to 1774, go to the First Continental Congress, delegates from all 13 colonies showed up, signed a document where they ‘cheerfully acknowledged’--their phrase—‘cheerfully acknowledged' the right of the Parliament and the king to regulate their commerce and, in the same document, they boycotted British goods.”
“Go across the Atlantic and King George III and the Parliament aren’t happy about this because their merchants are taking a beating on it, just taking a beating,” said Cuccinelli. “So, of course, they call their lawyer, what everybody does--then, as now, the solicitor general--and they had a conversation and determined that, in fact, the colonists were within their legal rights and that they couldn’t compel them to buy British goods.
“Now, go forward 236 years and you see where I’m going,” said Cuccinelli. “We now have a Congress and a president who believe they can order you to buy a product when King George III and the Parliament of Great Britain, whom we rebelled against, acknowledged that they could not.”
Cuccinelli concluded that it is not possible to believe the Founding Fathers of this country invested the new federal government they created after the American Revolution with a power they had rightfully refused to grant to the British Parliament and king before the revolution.
“Now, Americans endlessly debate the meaning of each part of the Constitution,” said Cuccinelli. “But one thing that every American should be able to agree on, if you think in terms of Venn Diagrams--I was an engineer before I was a lawyer, so I do things like this--the circle of power that represents federal power under the Constitution must be entirely within the circle of power exercised by King George III and the Parliament of Great Britain. Otherwise, why rebel? And, yet, here we have a Congress and a president who are exercising power that even Parliament and King George III acknowledged they did not have.”
Cuccinelli said he believes it will take about two years for Virginia’s suit against Obamacare to reach the Supreme Court. In the meantime, however, U.S. District Judge Hudson could strike the law down as unconstitutional in Virginia as soon as next month.
In a separate case, Florida is representing a group of 20 states that also have sued the federal government claiming Obamacare is unconstitutional.
55-12-106. Exceptions to requirement of security and revocation — Additional acceptable proof of financial security. —
The requirements of security and revocation contained in this chapter shall not apply to:
(1) An operator or owner, if the owner had in effect at the time of the accident, an automobile liability policy or bond with respect to the vehicle involved in the accident, except that an operator shall not be exempt under this subdivision (1) if, at the time of the accident, the vehicle was being operated without the owner's permission, either expressed or implied;
(2) An operator who is not the owner of the vehicle involved in the accident, if there was, in effect at the time of the accident, an automobile liability policy or bond with respect to driving a vehicle not owned by the operator;
(3) An operator or owner whose liability for damages resulting from the accident is, in the judgment of the commissioner, covered by another form of liability insurance policy or bond;
(4) Any owner qualifying as a self-insurer or to any operator of a vehicle owned by a person qualifying as a self-insurer as outlined in § 55-12-111;
(5) Any operator or owner of a motor vehicle involved in an accident wherein no injury or damage was caused to the person or property of anyone other than the operator or owner;
(6) An owner of a motor vehicle, if at the time of the accident the vehicle was being operated without the owner's permission, either expressed or implied, or was parked by a person who had been operating the motor vehicle without permission;
(7) Any owner or operator who shall submit, on or before the date of revocation, proof satisfactory to the commissioner of acceptance of liability for the accident and an agreement concerning the payment of damages satisfactory to all parties claiming damages. This exemption shall not apply, however, if the owner or operator fails to carry out the terms of the agreement. The commissioner may at any time within three (3) years after the accident, upon notice of such failure, take any action that might have been taken had the agreement not been made;
(8) Vehicles owned by the United States, this state or any political subdivision of this state or any municipality therein, or to the operator of any vehicle so owned, when the vehicle is involved in an accident;
(9) Any vehicle owned and operated by a carrier subject to the jurisdiction of the department of safety or the interstate commerce commission;
(10) Any person licensed and engaged in the business of renting or leasing motor vehicles to be operated on the public highways shall be required only to furnish proof of financial ability to satisfy any judgment or judgments rendered against the person in the person's capacity as owner of the motor vehicle, and shall not be required to furnish proof of its financial ability to satisfy any judgment or judgments rendered against the person to whom the motor vehicle was rented or leased at the time of the accident;
(11) A driver or owner of a vehicle that, at the time of the accident, was parked, unless the vehicle was parked at a place where parking at the time of the accident was prohibited by any applicable law or ordinance, or unless the vehicle was parked in an otherwise unlawful manner;
(12) Any person employed by the government of the United States, while the person is acting within the scope of the office or employment and is involved in a motor vehicle accident;
(13) An owner or operator of any vehicle where there is no physical contact with another vehicle or object or person, unless a judgment has been obtained;
(14) A driver or owner of a vehicle who has submitted to the commissioner on or before the date of revocation notarized releases executed by all parties who have previously filed claims with the department as a result of the accident; or
(15) Any person who has obtained a discharge in bankruptcy that discharged all claims against the person because of the accident listed in the petition; provided, that the discharge shall not relieve the person from the requirements of giving and maintaining proof of financial responsibility as required by § 55-12-126, and the person must pay a restoration fee of sixty-five dollars ($65.00) and pass the driver license examination.
55-12-105. Security deposit following accident — Acceptable proof of financial security — Revocation of registration or operating privileges for failure to deposit security — Notice — Appeal. —
(a) The commissioner shall, upon receiving an accident report of an accident occurring in this state that has resulted in bodily injury, or death, or damage to the property of any one (1) person in excess of four hundred dollars ($400), and upon determining that there is a reasonable possibility of a judgment against the owner, operator, or both, and upon receiving notice of a claim filed against the owner, operator, or both, revoke the license and shall request the commissioner of revenue to immediately revoke all registrations of the owner, operator, or both, of a motor vehicle involved in the accident, and in case of a nonresident, the privilege of operating a motor vehicle within this state and of the use within this state of any motor vehicle owned by the nonresident, unless the operator, owner, or both, deposits security in a sum that shall be sufficient in the judgment of the commissioner, and in no event less than five hundred dollars ($500), to satisfy any judgment or judgments resulting from the accident that may be recovered against the operator, owner, or both.
(b) The following, and only the following, shall be acceptable proof of financial security:
(1) Filing of written proof of insurance coverage with the commissioner on forms approved by the commissioner;
(2) The deposit of cash with the commissioner of no less than the amount specified in § 55-12-102, or in the total amount of all damages suffered, whichever is less, subject to a minimum deposit of five hundred dollars ($500);
(3) The execution and filing of a bond with the commissioner of no less than the amount specified in § 55-12-102, or in the total amount of all damages suffered, whichever is less, subject to a minimum bond of five hundred dollars ($500); or
(4) The submission to the commissioner of notarized releases executed by all parties who had previously filed claims with the department as a result of the accident.
(c) Any notice of revocation issued under this section shall be sent by United States mail to the last known address of the operator and owner not less than twenty (20) days prior to the effective date of revocation, and shall state the amount required as security, and that the operator, owner, or both are entitled to an administrative hearing conducted by the commissioner of safety or the commissioner's delegate pursuant to a request under § 55-12-103(a). Any request for an administrative hearing must be submitted in writing on or before the effective date of the proposed revocation.
55-12-111. Self-insurers. —
(a) Any person in whose name more than twenty-five (25) vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance from the commissioner as provided in subsection (c).
(b) Any recognized religious sect or division having established tenets or teachings and that has been in existence at all times since December 31, 1950, may qualify as a self-insurer by obtaining a certificate of self-insurance from the commissioner as provided in subsection (c) if the department determines that all of the following conditions are met:
(1) Members of the religious sect or division operate more than twenty-five (25) motor vehicles that are registered in this state and are either owned or leased by them;
(2) The members hold a common belief in mutual financial assistance in time of need to the extent that they share in financial obligations of other members who would otherwise be unable to meet their obligations;
(3) The religious sect or division is financially solvent and not subject to any actions in bankruptcy, trusteeship, receivership or any other court proceeding in which the sect or division's financial solvency is in question;
(4) Neither the religious sect or division nor any of its participating members has any judgments arising out of the operation, maintenance or use of a motor vehicle taken against them that have remained unsatisfied for more than thirty (30) days after becoming final; and
(5) There are no other factors that cause the department to believe that the religious sect or division and its members are not of sufficient financial ability to pay judgments taken against them.
(c) The commissioner has the discretion, upon the application of the person or religious sect or division, to issue a certificate of self-insurance when satisfied that the person or religious sect or division is possessed and will continue to be possessed of an ability to pay any judgments that might be rendered against the person or religious sect or division.
(d) The commissioner may, at any time after the issuance of a certificate of self-insurance, cancel the certificate by giving thirty (30) days' written notice of cancellation should there be reason to believe that the person or religious sect or division to whom this certificate was issued is no longer qualified as a self-insurer under this section.
Budget Committee 12/6/2010 - Budget options presented - still no decisions. $2.6 million problem in the insurance fund.
Last month Finance Director Jennings gave a presentation to the Budget Committee describing the serious financial problems faced by the County. The Finance Director asked the Budget Committee (Commissioners Lail, Melton, Lewis and Samples) for guidance in preparing the budget for the next fiscal year, which starts in June. His question was pretty simple. Should he prepare a budget that cuts expenses and people from the County payroll, or should he prepare a budget that includes a major (nearly 20 percent) increase in taxes. The Budget Committee avoided giving Mr. Jennings an answer. Instead, they asked him to prepare several "budget options" with different levels of spending cuts and tax increases.
At this month's Budget Committee meeting, the Mr. Jennings returned with four budget options, ranging from one which holds the existing tax rate and makes significant cuts to the County budget, to a 'business as usual' option that results in nearly a 20 percent tax increase. Once again, the Finance Director asked for guidance in preparing next year's budget.
The discussion in the Budget Committee was interesting. Concerns were voiced about cutting county workers. Concerns were voiced about asking County workers to contribute $50 per month to their medical plan costs (they currently contribute nothing). Comments were made about deeper cuts in the schools. Yet, not a word was voiced about closer scrutiny of other large budgets, like the Sheriff's department.
And, no one mentioned the terrible impact a major tax increase could have on the citizens of the County. Nearly 30 percent of the real estate transactions in the county involve foreclosed homes and properties. Ten percent of our citizens are unemployed. Nearly 20 percent of our citizens are on Food Stamps. A major tax increase will increase foreclosures and cause more small businesses to fail, further increasing unemployment. There is really no viable alternative to cutting the budget. Unfortunately, the Budget Committee again put off any decision until January.
Finance Director Jennings also brought another major financial problem to this meeting. The county self-insures for liability and workers compensation. It seems that our previous Financial Director did not do the actuarial reviews necessary to assure that there was enough money in these funds to pay our insurance claims. Worse, during the previous administration, nearly $900,000 in accounting "errors" were made in calculating the amount of money in these funds. These errors went undetected by the state auditors, until this year. After Jennings reviewed all these matters, he discovered there is no money in these funds, and it will take an injection of $2.6 million of taxpayers' hard earned money to make these funds sound. This led Commissioner Samples to openly wonder why the County is in the self-insurance business at all. Clearly, the County has not been managing their self-insurance very well.
A $40,000 budget transfer from the Civil Defense department to the Sheriff's department was discussed. It seems that the head of the Civil Defense department is a former Sheriff's deputy. He told the Commission he wanted the budget for his salary to be transferred to the Sheriff's department. He said this was necessary so that he could maintain his POST certification. He also said he would somehow continue to report to the Mayor, even though he would now be paid by the Sheriff. This sets a terrible precedent. Having a person paid out of one group, but responsible to a different group is something most well-run organizations try to avoid like the plague. Who evaluates the employee's performance? Who does the employee take orders from - the person who pays him, or the person who he is supposed to report to? Even worse, changing organizational structures and budgets to suit the convenience of an employee, makes no sense at all. Despite all these problems, the Commission voted to take this matter up at the Commission meeting. I was the only dissenting vote.
Commission Meeting 12/16/2010 – Canceled
The Courthouse was closed due to weather on Monday, December 13 and Thursday December 16. This resulted in the cancellation of the Commission meeting. If we are to address the pressing financial issues facing us, we certainly need to find a greater sense of urgency.
The biggest insurance company in the world held a party for salesmen where they were rewarded with the services of prostitutes.
Munich Re is the world's biggest re-insurer - in other words, the company acts as an insurance company for other insurance companies.
One of its divisions, Ergo, told the BBC that the party had taken place to reward salesmen in 2007.
A spokesman said the people who organised it had since left to work at other insurance companies.
The gathering was held at a thermal baths in the Hungarian capital Budapest as a reward to particularly successful salesmen.
'Whatever they liked'
There were about 100 guests and 20 prostitutes were hired.
A German business newspaper said the prostitutes had worn colour-coded arm-bands designating their availability, and the women had their arms stamped after each service rendered.
According to Handelsblatt, quoting an unnamed participant, guests were able to take the women to four-poster beds at the spa "and do whatever they liked".
"After each such encounter the women were stamped on the lower arm in order to keep track of how often each woman was frequented," the paper quoted the man as saying.
"The women wore red and yellow wrist bands. One lot were hostesses, the others would fulfil your every wish.
"There were also women with white wrist bands. They were reserved for board members and the very best sales reps."
A spokesman for Ergo told the BBC that the party had happened, but said it was not the usual way of rewarding their employees.
The company said it had introduced a new code of conduct.
"We've taken all the right steps to prevent getting caught again," he said. "It was a mistake but we are very sure that we will keep our secrets in the future.
"The new people of the sales organisation introduced a very personal commitment that getting caught should not happen again."
*or work for corporations that paid bribes for Obamacare waivers
06/02/11
President Obama's solicitor general, defending the national health care law on Wednesday, told a federal appeals court that Americans who didn't like the individual mandate could always avoid it by choosing to earn less money.
Neal Kumar Katyal, the acting solicitor general, made the argument under questioning before the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, which was considering an appeal by the Thomas More Law Center. (Listen to oral arguments here.) The three-judge panel, which was comprised of two Republican-appointed judges and a Democratic-appointed judge, expressed more skepticism about the government's defense of the health care law than the Fourth Circuit panel that heard the Virginia-based Obamacare challenge last month in Richmond. The Fourth Circuit panel was made up entirely of Democrats, and two of the judges were appointed by Obama himself.
During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.
Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.
“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”
Kaytal responded by noting that the there's a provision in the health care law that allows people to avoid the mandate.
“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Motel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”
Sutton interjected, “That wasn’t in a single speech given in Congress about this...the idea that the solution if you don’t like it is make a little less money.”
The so-called “hardship exemption” in the health care law is limited, and only applies to people who cannot obtain insurance for less than 8 percent of their income. So earning less isn't necessarily a solution, because it could then qualify the person for government-subsidized insurance which could make their contribution to premiums fall below the 8 percent threshold.
Throughout the oral arguments, Kaytal struggled to respond to the panel's concerns about what the limits of Congressional power would be if the courts ruled that they have the ability under the Commerce Clause to force individuals to purchase something.
Sutton said it would it be “hard to see this limit” in Congressional power if the mandate is upheld, and he honed in on the word “regulate” in the Commerce clause, explaining that the word implies you're in a market. “You don’t put them in the market to regulate them,” he said.
In arguments before the Fourth Circuit last month, Kaytal also struggled with a judge's question about what to do with the word “regulate,” to the point where the judge asked him to sit down to come up with an answer. (More on that exchange here). Kaytal has fallen back on the Necessary and Proper clause, insisting that it gives broader leeway to Congress.
Judge James Graham, a Reagan district court appointee who is temporarily hearing cases on the appeals court, said, “I hear your arguments about the power of Congress under the Commerce Clause, and I’m having difficulty seeing how there is any limit to the power as you’re defining it.”
Kaytal responded by referencing United States v. Morrison, in which the Supreme Court struck down parts of the Violence Against Women Act, and United States v. Lopez, which struck down gun free school zones. In those cases, Kaytal responded, the Supreme Court set the limit that the Commerce Clause had to regulate economic activities.
The health care market is unique, Kaytal insisted, because everybody will eventually participate. With the mandate, Kaytal said, “What Congress is regulating is not the failure to buy something. But failure to secure financing for something everyone is going to buy.”
Graham acknowledged Kaytal's arguments, yet reiterated that he was “having trouble seeing the limits.”
The problem with the “health care is unique” argument – and this is me talking – is that it just creates an opening for future Congresses to regulate all sorts of things by either a) arguing that a particular market is also special or b) finding a way to tie a given regulation to health care.
For instance, the example that's come up often is the idea of a law in which government forces individuals to eat broccoli.
During the Sixth Circuit argument, Kaytal said that such an example doesn't apply, because if you show up at a grocery store, nobody has to give you broccoli, whereas that is the case with health care and hospital emergency rooms.
Yet that argument assumes that Congress passes such a law as a regulation of the food market. What if the law was made as part of a regulation of the health care market? It isn't difficult to see where that argument can go.
The broccoli example is really a proxy for a broader argument about whether the government can compel individuals to engage in healthy behavior – it could just as well be eating salad, or exercising. There's no doubt that a huge driver of our nation's health care costs are illnesses linked to bad behavior. People who are overweight and out of shape cost more because they have increased risk of heart disease, diabetes, and so on. Those increased costs get passed on to all of us, because government pays for nearly half of the nation's health care expenses, a number that's set to grow under the new health care law. Is it really unrealistic to believe that future Congresses, looking for ways to control health care costs, could compel healthy behavior in some way? More pertinently, is there any reason why that would be unconstiutional under the precedent that would be set if the individual mandate is upheld?
With most experts expecting the case to go before the Supreme Court, it seems the biggest obstacle for the Obama administration is figuring out where power would be limited if the mandate were upheld. Those challenging the law have made a clear and understandable limit by drawing a distinction between regulating activity and regulating inactivity (i.e. the decision not to purchase insurance). But simply saying the health care market is unique doesn't actually create a very clear or understandable limit to Congressional power.
The 11th Circuit hears the case next week brought by 26 states led by Florida.
ATLANTA (AP) - The latest round in the fight over President Barack Obama's health care overhaul was held Wednesday in the federal appeals court in Atlanta.
A three-judge panel of the 11th Circuit Court of Appeals heard oral arguments on whether to reverse a Florida judge's ruling that struck down the law. The judges seemed receptive to arguments from critics challenging the health reforms as unconstitutional during the three-hour hearing.
Some 26 states opposing the law and an alliance of small businesses argue that Congress didn't have the power to require virtually all Americans to maintain health insurance. The Justice Department says the legislative branch exercised its "quintessential" right.
A three-judge federal appeals court panel in Cincinnati heard arguments last week about whether the law's mandate to buy health insurance went beyond congressional authority, and a federal appeals court based in Richmond, Va. heard oral arguments May 10 in another legal challenge to the law.
Lawyers on both sides have said the cases ultimately will be decided by the U.S. Supreme Court. But the appeal court panel's decision in Atlanta is being closely watched and could help shape the debate.
There's considerable legal firepower on both sides of the argument. Former U.S. Solicitor Paul Clement represents the challenging states and current U.S. Solicitor Neal Katyal will speak for the government.
It unfolded in what's considered one of the nation's most conservative appeals courts. But the randomly selected panel includes two appointees of Democratic President Bill Clinton, and observers say it's hard to predict how they'll decide. The Clinton appointees are circuit Judges Frank Hull and Stanley Marcus, while Chief Judge Joel Dubina was tapped by President George H.W. Bush.
Two similar lawsuits are pending in Virginia. Three federal judges, all Democratic appointees, have upheld the law. Two federal judges, both Republican appointees, have invalidated it.
At issue Wednesday is a ruling by U.S. District Judge Roger Vinson, a Republican-appointed judge in Florida. It not only struck down a requirement that nearly all Americans carry health insurance, but it threw out other provisions ranging from Medicare discounts for some seniors to a change that allows adult children up to age 26 to remain on their parents' coverage.
A crush of people gathered outside the 11th Circuit nearly three hours before the arguments were held to guarantee a spot, and the court opened an adjoining courtroom for the spillover crowd. The courtroom was packed with high-profile attorneys and politicians, including Georgia Attorney General Sam Olens, who sat in the front row.
The court also decided to temporarily suspend some of its own rules to sell $26 audiotapes of the arguments to those who want recordings of the court sessions.
Outside the federal courthouse in Atlanta, about 75 people gathered on the sidewalk carrying signs ranging from "Hands off my health care" to "No taxpayer funded abortion" and "Throw the socialist out of the White House." No chanting was permitted. One woman who repeated "No more Tea Party" was escorted away by a courthouse security officer.
SEATTLE — The financially strapped U.S. Postal Service is proposing to cut its workforce by 20 percent and to withdraw from the federal health and retirement plans because it believes it could provide benefits at a lower cost.
The layoffs would be achieved in part by breaking labor agreements, a proposal that drew swift fire from postal unions. The plan would require congressional approval but, if successful, could be precedent-setting, with possible ripple effects throughout government. It would also deliver a major blow to the nation’s labor movement.
In a notice informing employees of its proposals — with the headline “Financial crisis calls for significant actions” — the Postal Service said, “We will be insolvent next month due to significant declines in mail volume and retiree health benefit pre-funding costs imposed by Congress.”
During the past four years, the service lost $20 billion, including $8.5 billion in fiscal 2010. Over that period, mail volume dropped by 20 percent.
The USPS plan is described in two draft documents obtained by The Washington Post. A “Workforce Optimization” paper acknowledges its “extraordinary request” to break its labor contracts.
“However, exceptional circumstances require exceptional remedies,” the document says.
“The Postal Service is facing dire economic challenges that threaten its very existence. . . . If the Postal Service was a private sector business, it would have filed for bankruptcy and utilized the reorganization process to restructure its labor agreements to reflect the new financial reality,” the document continues.
In a white paper on health and retirement benefits, the USPS said it was imperative to rein in health benefit and pension costs, which are a third of its labor expenses.
For health insurance plans, the paper said, the Postal Service wanted to withdraw its 480,000 pensioners and 600,000 active employees from the Federal Employees Health Benefits Program “and place them in a new, Postal Service administered” program.
Almost identical language is used for the Civil Service Retirement System and the Federal Employees Retirement System.
The USPS said the programs do not meet “the private sector comparability standard,” a statement that could be translated as meaning that government plans are too generous and too costly.
“FEHB may exceed what the private sector does in certain areas,” said Anthony J. Vegliante, USPS chief human resources officer and executive vice president. “It may not meet what the private sector does in other areas. So cost may be above the private sector, while value may be below the private sector.”
Bills that would rein in employee benefits or have workers pay more for the benefits have been introduced in Congress and met with vigorous opposition from federal employee organizations. Intentionally or not, the Postal Service’s proposal provides support for such legislative initiatives.
The proposals are the USPS’s latest money-saving effort in a series of moves, some as recent as a few weeks ago and others stretching over a decade.
A federal appeals court struck down as unconstitutional the central provision of President Barack Obama’s health-care law requiring most Americans get coverage, bringing the 2010 act ever-closer to the U.S. Supreme Court.
The 2 to 1 ruling is in direct conflict with an earlier decision by a federal appeals panel in Cincinnati, which upheld the individual mandate. The provision exceeds Congress’s power to regulate commerce, a U.S. appeals panel in Atlanta ruled today, affirming in part a lower court in a suit by 26 states.
“This guarantees that the Supreme Court will rule on the constitutionality of the individual mandate, and makes it very likely that the court’s ruling will come by the end of June 2012,” said Kevin Walsh, an assistant professor at the University of Richmond School of Law in Virginia.
The U.S. Supreme Court often decides to accept cases where two or more of the federal appeals courts are in disagreement. Plaintiffs in the Cincinnati case have already asked the high court to review that ruling. A third federal appeals panel in Richmond has heard arguments in two cases brought over the health care law and has yet to rule.
In today’s ruling, the majority wrote that the “mandate represents a wholly novel and potentially unbounded assertion of congressional authority.” The law requires “Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives.”
While throwing out the mandate, the panel overruled the lower court’s decision in that case to reject the entire health care law as a result.
‘Fully Operative’
“Excising the individual mandate from the act does not prevent the remaining provisions from being fully operative as a law,” Chief U.S. Circuit Judge Joel Dubina, a Republican appointee, and U.S. Circuit Judge Frank M. Hull, a Democratic appointee, wrote. Hull is the first judge appointed by a Democratic president to rule against the law. Dissenting in part, U.S. Circuit Judge Stanley Marcus, a Republican appointee, said he would have upheld the act in its entirety.
Stephanie Cutter, a deputy senior adviser to Obama, said in an Internet posting that “we strongly disagree with this decision and we are confident it will not stand.”
“The individual responsibility provision -- the main part of the law at issue in these cases -- is constitutional,” Cutter said. “Those who claim this provision exceeds Congress’ power to regulate interstate commerce are incorrect.”
‘Strongly Disagree’
“The Department of Justice believes -- as the Court of Appeals for the Sixth Circuit held, and the dissenting judge in the Eleventh Circuit concluded -- that the Affordable Care Act is constitutional,” the Justice Department said in an e-mailed statement. “We strongly disagree with the court’s decision.” The government said it’s considering the “next appropriate steps.”
The U.S. may seek a rehearing by the three-judge panel, the full U.S. Court of Appeals for the Eleventh Circuit or petition the U.S. Supreme Court. The mandate provision isn’t scheduled to take effect until 2014.
Florida Attorney General Pam Bondi, a Republican, said in an e-mailed statement today that the “ruling by the Eleventh Circuit Court of Appeals upholds our position that the federal health care law exceeds Congress’ power.''
The Patient Protection and Affordable Care Act was signed into law on March 23, 2010.
Then-Florida Attorney General Bill McCollum sued the same day on behalf of his state and a dozen others. Thirteen more states signed on later. The health-care act bars insurers from denying coverage to people who are sick and from imposing lifetime limits on costs. It requires almost all Americans 18 and over to obtain coverage.
Exceeded Its Power
The Atlanta court upheld portions of U.S. District Judge C. Roger Vinson’s ruling in Pensacola, Florida, that Congress exceeded its power in requiring that almost every American obtain insurance starting in 2014.
The U.S. has called the mandatory-coverage provision the linchpin of the statute because it will add younger and healthier people to the pool of the insured population, making the program viable for insurers.
Vinson on Jan. 31 ruled that Congress exceeded its powers under the U.S.
Constitution’s commerce clause when it created the requirement. Concluding that the mandate was integral to the rest of the legislation, he invalidated the entire act.
The Obama administration appealed Vinson’s ruling to the Eleventh Circuit. The three-judge panel, comprising two judges nominated by Republican President Ronald Reagan and one picked by Democratic President Bill Clinton, heard argument on June 8.
‘Most Difficult Issue’
“The most difficult issue in the case is the individual mandate,” Dubina, first nominated to the federal bench by Reagan in 1986, said at the start of the June 8 session in Atlanta. Reagan named Marcus in 1985. Hull was a 1994 Clinton nominee.
“The question you have before you is that everyone is consuming the goods; it’s about failure to pay,” Acting U.S. Solicitor General Neal Katyal told the panel during the oral argument. The solicitor general is the Justice Department’s top courtroom attorney.
“The Commerce Clause only gives Congress the power to regulate, not to compel,” states’ attorney Paul D. Clement, a solicitor general under President George W. Bush, told the court later.
U.S. Circuit Judge Marcus, in his dissenting opinion in today’s decision in Atlanta, said that while he agreed with the majority in reversing Vinson’s invalidation of the entire act, he would have upheld the mandate provision too.
‘Close Relationship’
“By ignoring the close relationship between the health insurance and health care services markets, the plaintiffs and the majority seek to avoid the hard fact that the uninsured as a class are actively consuming substantial quantities of health care services now -- not just next week, next month, or next year,” Marcus wrote, making them active participants in interstate commerce subject to federal regulation.
The Cincinnati-based U.S. Court of Appeals for the Sixth Circuit, in its 2-1 ruling on June 29, became the first appellate panel to rule in favor of the law. The court affirmed a Detroit federal judge’s decision last year to throw out a challenge by the Ann Arbor, Michigan-based Thomas More Law Center, a Christian-based public interest law firm which has sought review by the U.S. Supreme Court.
“Not every intrusive law is an unconstitutionally intrusive law,” U.S. Circuit Judge Jeffrey Sutton, the first Republican-appointed judge to back the law in litigation across the country, said in the majority opinion.
Party Lines
Lower-court rulings have broken entirely along party lines, with federal judges appointed by Republican presidents invalidating the mandate and those appointed by Democrats upholding it.
The U.S. Court of Appeals for the Fourth Circuit in Richmond on May 10 heard the Obama administration’s challenge to a lower court ruling that sided with Virginia attorney general Kenneth Cuccinelli, who filed a separate suit the same day as McCollum.
U.S. District Judge Henry Hudson in Richmond, appointed by Bush, a Republican, had struck down the individual mandate as unconstitutional while leaving the rest of the act standing.
The Richmond panel also heard an appeal by Lynchburg, Virginia-based Liberty University, which sought to reverse the another judge’s dismissal of its challenge to the law. That ruling was by Judge Norman K. Moon, who was selected by Clinton.
The appellate panel hasn’t yet rendered a decision.
The case is State of Florida v. U.S. Department of Health and Human Services, 11-11021, U.S. Court of Appeals for the 11th Circuit (Atlanta).
Constitutional law cases are often flanked by important disputes over procedure and process. These disputes can take the form of threshold questions, such as whether the Court has jurisdiction to decide a case, or they can appear as questions of remedy that arise at the case’s back end, such as whether the Court can simply carve out an unconstitutional provision of a complex statute.
These issues currently flank the debate over the constitutionality of the Affordable Care Act, a topic on which the Court will hear oral argument in the spring, with a decision expected to follow in early summer. Both issues highlight the fact that constitutional litigation is often much more complex than just the central issue in a case of whether a right has been violated. Establishing jurisdiction is always a critical step, and identifying the appropriate remedy for a constitutional wrong is often challenging.
Consider the appeals over the individual mandate, a centerpiece of the law passed by Congress last year, which requires that virtually all persons in the United States have health insurance by 2014 and assesses a penalty on those who do not have medical coverage. The penalty would be collected through federal income tax returns beginning in 2015.
The constitutionality of the individual mandate has been challenged by individuals, states, and organizations. They argue that Congress exceeded its power to regulate interstate commerce when it passed the health care law that requires individuals to choose between buying insurance they may not want or paying a penalty. That question about the scope of Congress’s power under the Constitution is the heart of the legal battle over the health care law. While the Sixth and D.C. Circuits have agreed with the federal government that Congress indeed has such power, the Supreme Court has agreed to hear an appeal from the Eleventh Circuit’s holding that Congress lacked the authority to compel individuals to purchase health insurance.
Before the Court can ever get to the heart of a matter, however, the Justices must always decide whether they have jurisdiction – a determination that the case is in the right court, ready for decision without any legal impediments.
In the case of the health care law, this question turns on whether a federal law called the Anti-Injunction Act applies to the health care law. The relevant portion of the Anti-Injunction Act, passed by Congress nearly 150 years ago, says that no federal court has jurisdiction to stop the collection of a federal tax before that tax goes into effect. As a practical matter, this means that the proper way to challenge the constitutionality of a federal tax is to pay the levy first and then to question the validity of the tax while suing for a refund. If the Anti-Injunction Act applies, then the Supreme Court may have to say that there is no authority for any federal court to rule on the individual mandate until the first penalties are paid in 2015.
But does the Anti-Injunction Act apply? Congress repeatedly referred to the payment by those who fail to buy health insurance as a penalty, not a tax; moreover, it used the term “tax” in other provisions of the health care law to refer to other forms of revenue collection. Yet, the collection of the penalty would be administered through the Internal Revenue Service and paid on federal income tax returns. So it may not be a tax, but if it is a penalty that operates much like a tax, should it be covered by the Anti-Injunction Act?
The Obama Administration actually changed its position on that question. When the health care law was hit with a flood of lawsuits soon after President Obama signed the legislation, the Justice Department argued in federal district courts that the lawsuits were barred by the Anti-Injunction Act. But as the cases moved into the federal courts of appeals, the Justice Department no longer pressed that argument, maintaining that the penalty in the health care law could be distinguished from the kinds of tax collections for which the Anti-Injunction Act bars jurisdiction. Of the four federal appeals courts to rule on the Affordable Care Act, only the Fourth Circuit held that the penalty was covered by the Anti-Injunction Act and that it therefore could not reach the question of Congressional power. This view was also advanced at length in the D.C. Circuit in a solo dissenting opinion by Judge Brett M. Kavanaugh.
As part of its consideration of the individual mandate, the Supreme Court has also said it will consider whether and how the Anti-Injunction Act applies to the case. Because the Justice Department no longer argues that there is a jurisdiction problem, and because the parties challenging the law believe that Congress asserted its power under the Commerce Clause rather than its taxing power, there is no one in the case to defend the position that the Anti-Injunction Act should apply. As a result, the Supreme Court had to appoint a lawyer, Robert Long of the Washington, D.C. firm of Covington and Burling, to argue that the Anti-Injunction Act applies and deprives the Court of jurisdiction to review the individual mandate until 2015.
Another critical facet of constitutional litigation is the question of the appropriate remedy. When confronting unconstitutional legislation, should the Court try to excise the invalid provisions and save the rest of the legislation? In legal jargon, this is the issue of severability – whether one invalid piece of a law can be cut out and the rest left intact.
Should the Supreme Court make it past jurisdiction and get to the constitutionality of the individual mandate, the Justices face the severability issue, if they are inclined to strike down the provision requiring everyone to have health care or pay a penalty. Since the Eleventh Circuit was the only appeals court to strike down the health insurance requirement, it was also the only appeals court to decide that the invalid part of the law could be excised and the rest left in place. The test applied by the Eleventh Circuit may be simply summarized: would Congress have passed the law anyway without the part that is unconstitutional? But summarizing the test is far easier than answering the question it poses.
There are certainly important components of the Affordable Care Act that can be supported as important reforms in their own right – for example, provisions that limit an insurer’s ability to decline coverage for pre-existing conditions and young adults to remain on their parents’ policies, if necessary, until age twenty-five. If one of the main goals of the new law was to guarantee that everyone have health insurance, however, the individual mandate is integral to achieving that purpose. Moreover, the individual mandate was necessary to add people to the insurance rolls and revenue to the insurance coffers to spread out the cost of covering additional medical care.
Would Congress have passed the Affordable Care Act without the individual mandate? The Supreme Court has said it will consider that question, as well, as it rules on the law. And again, because no one involved in the case is defending the Eleventh Circuit’s position that the provision can be severed, the Justices appointed another lawyer, H. Bartow Farr III of the Washington, D.C. firm of Farr and Taranto, to argue that severability is the correct remedy if the individual mandate is ruled unconstitutional.
Just deciding the question of whether the health care law is constitutional would be a momentous decision for the Justices, but tackling the other issues that come with the case puts the Court on a twisting path of constitutional issues surrounded by important matters of process and procedure.
Dictator Obama's Secretary of War Vinnie Da Chin Panetta and the Pentagram Joints Chief Of Operation Northwoods testified to Congress yesterday that Obama takes his orders to invade from United Nations and NATO, not Congress.
This is the equivalent ot Caesar crossing the Rubicon with his military to invade Rome under martial law, resulting in civil war, and 5 years later every member of the Roman Senate stabbing Caesar in the back...literally on the Ides Of March (next week...).
http://en.wikipedia.org/wiki/Julius_Caesar
http://en.wikipedia.org/wiki/Crossing_the_rubicon
H.CON.RES.107 -- Expressing the sense of Congress that the use of offensive military force by a President without prior and clear authorization of an Act of Congress constitutes an impeachable high... (Introduced in House - IH)
HCON 107 IH
112th CONGRESS
2d Session
H. CON. RES. 107
Expressing the sense of Congress that the use of offensive military force by a President without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.
IN THE HOUSE OF REPRESENTATIVES
March 7, 2012
Mr. JONES submitted the following concurrent resolution; which was referred to the Committee on the Judiciary
CONCURRENT RESOLUTION
Expressing the sense of Congress that the use of offensive military force by a President without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.
Whereas the cornerstone of the Republic is honoring Congress's exclusive power to declare war under article I, section 8, clause 11 of the Constitution: Now, therefore, be it
Resolved by the House of Representatives (the Senate concurring), That it is the sense of Congress that, except in response to an actual or imminent attack against the territory of the United States, the use of offensive military force by a President without prior and clear authorization of an Act of Congress violates Congress's exclusive power to declare war under article I, section 8, clause 11 of the Constitution and therefore constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.
Defense Secretary Leon Panetta’s testimony asserting that the United Nations and NATO have supreme authority over the actions of the United States military, words which effectively declare Congress a ceremonial relic, have prompted Congressman Walter Jones to introduce a resolution that re-affirms such behavior as an “impeachable high crime and misdemeanor” under the Constitution.
During a Senate Armed Services Committee hearing yesterday, Panetta and Joint Chiefs of Staff Chairman Gen. Martin Dempsey brazenly admitted that their authority comes not from the U.S. Constitution, but that the United States is subservient to and takes its marching orders from the United Nations and NATO, international bodies over which the American people have no democratic influence.
Panetta was asked by Senator Jeff Sessions, “We spend our time worrying about the U.N., the Arab League, NATO and too little time, in my opinion, worrying about the elected representatives of the United States. As you go forward, will you consult with the United States Congress?”
The Defense Secretary responded “You know, our goal would be to seek international permission. And we would come to the Congress and inform you and determine how best to approach this, whether or not we would want to get permission from the Congress.”
Despite Sessions’ repeated efforts to get Panetta to acknowledge that the United States Congress is supreme to the likes of NATO and the UN, Panetta exalted the power of international bodies over the US legislative branch.
“I’m really baffled by the idea that somehow an international assembly provides a legal basis for the United States military to be deployed in combat,” Sessions said. “I don’t believe it’s close to being correct. They provide no legal authority. The only legal authority that’s required to deploy the United States military is of the Congress and the president and the law and the Constitution.”
In an effort to re-affirm the fact that “the use of offensive military force by a President without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution,” Republican Congressman Walter Jones has introduced a resolution in the House of Representatives.
The Pentagon is engaging in damage control after shocking testimony yesterday by Defense Secretary Leon Panetta at a Senate Armed Services Committee congressional hearing during which it was confirmed that the U.S. government is now completely beholden to international power structures and that the legislative branch is a worthless relic.
During the hearing yesterday Panetta and Joint Chiefs of Staff Chairman Gen. Martin Dempsey brazenly admitted that their authority comes not from the U.S. Constitution, but that the United States is subservient to and takes its marching orders from the United Nations and NATO, international bodies over which the American people have no democratic influence.
Panetta was asked by Senator Jeff Sessions, “We spend our time worrying about the U.N., the Arab League, NATO and too little time, in my opinion, worrying about the elected representatives of the United States. As you go forward, will you consult with the United States Congress?”
The Defense Secretary responded “You know, our goal would be to seek international permission. And we would come to the Congress and inform you and determine how best to approach this, whether or not we would want to get permission from the Congress.”
Despite Sessions’ repeated efforts to get Panetta to acknowledge that the United States Congress is supreme to the likes of NATO and the UN, Panetta exalted the power of international bodies over the US legislative branch.
“I’m really baffled by the idea that somehow an international assembly provides a legal basis for the United States military to be deployed in combat,” Sessions said. “I don’t believe it’s close to being correct. They provide no legal authority. The only legal authority that’s required to deploy the United States military is of the Congress and the president and the law and the Constitution.”
Panetta’s assertion that he would seek “international permission” before ‘informing’ Congress about the actions of the US military provoked a firestorm of controversy, prompting the Pentagon to engage in damage control by claiming Panetta’s comments were misinterpreted.
“He was re-emphasizing the need for an international mandate. We are not ceding U.S. decision-making authority to some foreign body,” a defense official told CNN.
However, this is not the first time that the authority of international bodies has been framed as being superior to the US Congress and the Constitution.
In June last year, President Obama arrogantly expressed his hostility to the rule of law when he dismissed the need to get congressional authorization to commit the United States to a military intervention in Libya, churlishly dismissing criticism and remarking, “I don’t even have to get to the Constitutional question.”
Obama tried to legitimize his failure to obtain Congressional approval for military involvement by sending a letter to Speaker of the House John Boehner in which he said the military assault was “authorized by the United Nations (U.N.) Security Council.”
Panetta’s testimony that the US looks to obtain “international permission” before it acts, allied with Obama citing the UN as the supreme authority while trashing the power of Congress, prove that the United States has ceded control over its own affairs to unelected international bureaucrats, just as the countries of the European Union have done likewise.
Attorney General Eric Holder, the top “legal” voice of the US regime, argued to Northwestern University law students that the US Constitution is no limit to the regime dictatorially assassinating Americans. This follows regime arguments to seize and “disappear” any person in opposition to regime dictates as “terrorist supporters,” and extracting their confessions with controlled drowning (euphemistically “waterboarding”), found by all US and international courts as torture. The regime’s followers in Congress voted for legislation (2006 Military Commissions Act, 2012 NDAA) that these dictates are consistent with the US Constitution.
http://www.washingtonsblog.com/2012/03/attorney-general-holder-degrades-us-to-fascist-assassination-nation-99-response.html
THE DRAGONATER WINS IN TRAFFIC COURT AT DEALS GAP, RAISES SPEED LIMIT TO 65 MPH ON THE DRAGON - NOLLE PROSEQUI BY BLOUNT COUNTY ATTORNEY GENERAL. NO TESTIMONY, HEARING NOR TRIAL WHATSOEVER. 60 MPH SPEEDING TICKET DISMISSED WITH PREJUDICE, COSTS PAID BY THE STATE, IN BLOUNT COUNTY GENERAL SESSIONS COURT WITH JUDGE BREWER. THP TROOPER RANDALL HUCKEBY ADMITTED ON VIDEOTAPE DURING TRAFFIC STOP THAT ALL SPEEDING TICKETS NORTHBOUND ON US129 AT MILE MARKER 0.5 ARE FEDERAL JURISDICTION, NOT STATE JURISDICTION (VIDEO BY THE DRAGONATER). HUCKEBY WAS ALSO CAUGHT ON VIDEO SPEEDING AT 60 MPH ON THE DRAGON, WITHOUT THE MANDATORY EMERGENCY LIGHTS AND SIREN REQUIRED FOR IMMUNITY FROM PROSECUTION (VIDEO BY THE DRAGONATER). TDOT ADMITTED IN WRITING THAT THE MANDATORY TRAFFIC ENGINEERING SURVEY SPEED AUDIT WAS NEVER PERFORMED, IN VIOLATION OF TN CODE, THUS THE POSTED 30 MPH SPEED LIMIT ON THE DRAGON REVERTS TO THE DEFAULT 65 MPH IN TN CODE. THE DRAGONATER ALSO MADE VIDEO OF TROOPER HUCKEBY SPEEDING UP TO 60 MPH ON THE DRAGON IN A 30 MPH ZONE, WITHOUT MANDATORY EMERGENCY LIGHTS NOR SIREN, IN VIOLATION OF TN CODE, AND PERJURY IN HIS PERSONNEL FILE, WHICH SHOWED HIS $100,000+ SALARY. 2007 TDOT SAFETY AUDIT REPORT CONFESSED THAT THP'S JOB IS TO BAN ALL COMMERCIAL BUSINESSES ON THE DRAGON, SO THP TICKETS INCREASED 11,400% IN BLOUNT COUNTY. THP'S STALKER RADAR OPERATOR MANUAL CONFESSED THAT RADAR CANNOT MEASURE THE SPEED OF VEHICLES WITHIN 18 MPH OF ACTUAL SPEED. WATCH THIS SPACE FOR FULL EVIDENCE FILE. UPDATE 7 MARCH 2011
