A letter to Ed and Elaine Brown - Ed Brown 03923-049 FCI ELKTON FEDERAL CORRECTIONAL INSTITUTION P.O. BOX 10 LISBON,OH 44432 Hello Ed. Well here we are! Didn't turn out as I expected, and I'm sure as hell it didn't turn out like you and Elaine expected. I hope you hav

Posted: Fri Nov 30, 2007 4:39 am

Re: A Letter to the District Attorney and Sheriff of Josephine County Oregon

September 24, 1999

Raymond Karczewski<arkent> wrote:

rk: The following is a reply to Josephine County District Attorney Tim Thompson's response to my original communication.

From: "TIMOTHY THOMPSON"
District Attorney, Josephine County Oregon
To: <arkent>
Subject: Response to Questions re Motor Vehicles

Dear Mr Karczewski:

tt: I am in receipt of your e-mail inquiry re driver's licenses and motor vehicles. Your inquiry to me contains three questions. The first deals with an "unalienable right to liberty being converted into a privilege" by the State of Oregon. The second question refers to possible distinctions between automobiles and motor vehicles for licensing purposes. The third question relates to possible distinctions between non-commercial versus commercial uses of motor vehicles for licensing purposes.

tt: I do not have the time to adequately research, brief, or explore the intricacies of constitutional law with you, but I will try to provide some guidance.

rk: Mr. Thompson, why don't you have the time to research this Constitutional question which has such far reaching ramifications for the people of Josephine County and of this Country? You have the office, the facilities, the researchers, and certainly the time (your job) to answer this important Constitutional question. The question is: Does the State of Oregon and Josephine County have the ability to overide the U.S. Constitution and convert a Constitutional Unalienable Right into a privilege and through such action therefore convert a Constitutional Unalienable Right into a crime?

rk: Mr. Thompson, all passages below which are enclosed in quotation (") marks are excerpted from the legal brief at http://www.cs.cmu.edu/~karl/govt/driver/driver.html sent to your office in a previous communication. I am not a lawyer, but I certainly understand Truth when I see it.

rk: The courts have held that "The claim and exercise of a constitutional Right cannot be converted into a crime." Miller vs. U.S., 230 F. 486, 489.

tt: If you proceed upon your stated course of action, perhaps the opportunity will arise to develop some appellate law in this state.

rk: Is it the sole duty of the County District Attorney to prosecute citizens and garner convictions without regard for the rendering of justice, then let the appellate courts sort out the mess? That, sir, does not best serve those constituents who put that District Attorney into office.

tt: As a matter of historical background, the right to travel is not expressly addressed in the US Constitution, though its nature has been recognized through various analytical processes in a variety of cases.

rk: "The courts have held that There can be no sanction or penalty imposed upon one because of this exercise of constitutional Rights." Snerer vs. Cullen, 481 F. 946.
That's pretty clear language, is it not?

tt: Its source has been discussed in connection with the Privileges and Immunities Clause, the 14th Amendment, and the Commerce Clause, among others, depending upon the precise issues raised.

rk: I am not concerned with legal opinions regarding the Commerce Clause. I am, however, concerned with your official position regarding The Unalienable Rights of private Citizens to "travel" upon the roadways of Josephine County and of this Country in their private "automobiles" for their own private transportation and survival needs and who are not using the roadways for the purposes of engaging in commercial or business for profit.

rk: Let us cut to the chase, shall we?

rk: After all, the courts have further held that: "Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been
protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property...and is regarded as inalienable." 16
C.J.S., Constitutional Law, Sect.202, p.987.

and

"Personal liberty largely consists of the Right of locomotion -- to go where and when one pleases -- only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another's Rights, he will be protected, not only in his person, but in his safe conduct." [emphasis added] II Am.Jur. (1st) Constitutional Law, Sect.329, p.1135.

rk: These, Mr. Thompson, go to the heart of the matter, not the tangential peripheral opinions dealing with the "commerce clause." I'm talking about plain folk, taxpayers of Josephine County who utilize for their private transportation and survival needs, the ordinary and usual conveyances of the day, in other words, their own private "automobiles."

rk: Have not the courts held that: "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda vs. Arizona, 384 US 436, 491.

and

rk: "Thus the legislature does not have the power to abrogate the Citizen's Right to travel upon the public roads, by passing legislation forcing the citizen to waive his Right and convert that Right into a privilege. Furthermore, we have previously established that this "privilege" has been defined as applying only to those who are "conducting business in the streets" or "operating for-hire vehicles."

and

rk: "The essential elements of due process of law are...Notice and The Opportunity to defend." Simon vs. Craft, 182 US 427.

rk: "Yet, not one individual has been given notice of the loss of his/her Right, let alone before signing the license (contract). Nor was the Citizen given any opportunity to defend against the loss of his/her right to travel, by automobile, on the highways, in the ordinary course of life and business. This amounts to an arbitrary deprivation of Liberty."

"There should be no arbitrary deprivation of Life or Liberty..." Barbour vs. Connolly, 113 US 27, 31; Yick Wo vs. Hopkins, 118 US 356.

and...

"The right to travel is part of the Liberty of which a citizen cannot be deprived without due process of law under the Fifth Amendment. This Right was emerging as early as the Magna Carta." Kent vs. Dulles, 357 US 116 (1958).

rk: "The focal point of this question of police power and due process must balance upon the point of making the public highways a safe place for the public to travel. If a man travels in a manner that creates actual damage, an action would lie (civilly) for recovery of damages. The state could then also proceed against the individual to deprive him of his Right to use the public highways, for cause. This process would fulfill the due process requirements of the Fifth Amendment while at the same time insuring that Rights guaranteed by the U.S. Constitution and the state constitutions would be protected.

rk: "But unless or until harm or damage (a crime) is committed, there is no cause for interference in the private affairs or actions of a Citizen."

tt: All powers not exclusively delegated to the federal government, or expressly prohibited by constitutional limitations, are reserved to the states (per the 10th Amendment to the US Constitution). Since the federal government has not passed uniform national legislation re driver competencies and rules of the road (i.e. the federal government has not "occupied the field") and constitutional prohibitions are not express, all fifty states have adopted legislation impacting motor vehicles and driver competency standards to promote public safety and welfare on their public roads.

tt: With regard to your first question, I am not sure what your precise question is, since you are blending phrases from the Declaration of Independence with those from constitutional sources.. In the context of your letter, however, I am assuming you are questioning whether or not a state can adopt regulations or pass legislation which can impact what you characterize as an "Unalienable Right to Liberty." If you are referring to a right to travel, the answer is "yes." The issue, and similar licensing issues, have been raised in many jurisdictions and most reported decisions have supported limitations on the right to travel. Appellate decisions addressing these issues can be found in decisions from many state courts, the various federal courts, and the US Supreme Court. Hendrick v. Maryland, 235 U.S. 610 (1915) is an early US Supreme Court case recognizing the "privilege" of driving a motor vehicle on the public roads of a state. The case further recognizes the state's interest in regulating, and even restricting, the "privilege" of
driving in order to promote the safety and protection of the public on its roads. In accord are a 1938 Opinion of the Oregon Attorney General, at page 632, City of Salina v. Wisden, 737 P2d 981 (1987)( Supreme Court of Utah), Berberian v. Petit , 374 A2d 791 (1977) (Supreme Court of Rhode Island), and City of Spokane v. Port, 716 P2d 945 (1986) ( a Washington Court of Appeals decision), to name a few. The privilege of using public highways and roads can be regulated by requiring driver's licenses, competency testing of drivers, proof of financial responsibility, minimum equipment standards for vehicle safety and operation, etc. There is no constitutionally recognized right to travel by motor vehicle on public roads without complying with a state's legislatively created regulatory process. If you disagree with the decisions of your legislators, you should contact them.

rk: Why? If Unalienable Rights are, in fact, held as Rights which cannot be Infringed upon, surrendered, transferred, stripped away, converted, or legislated out of existence, the issue of peripheral legislation concerned with regulation of commerce on the highways of our land is moot, is it not?

tt: Your second question (generally) asks whether or not Oregon law considers use of a private automobile for non-commercial purposes to be the same as use of a motor vehicle for commercial purposes. The answer is "yes." with regard to licensing issues and restrictions.

rk: Now that appears to be the focus of this issue, does it not? That appears to be the government's deviation from our original U.S. Constitution and its guaranteed protection against government infringement upon a free people's Unalienable Rights.

tt: First, the Oregon Motor Vehicle Code defines "motor vehicle" to mean " a vehicle that is self- propelled or designed for self -propulsion." ORS 801.630. "Automobile" is not part of the lexicon, nor is it defined,

rk: Isn't the absence of a clear definition of "Automobile" rather convenient for a system that operates on the "letter of the law"?

tt: but an automobile certainly falls within the definition of a motor vehicle. Definitions exist for "commercial driver license," "commercial motor vehicle," " commercial vehicle," "driver license," "driving privilege," and "vehicle" in Chapter 801 of the Motor Vehicle Code. In general, the commercial aspects of driving activities result in more stringent regulation than private, non-commercial activities. Each driving activity, however, is subject to legislative and administrative regulation.

rk: But, I see you fail to include definitions for a private person's use of their own private Automobile for private travel upon the roadways while not engaging, in any way, in commercial activities. That, sir, is the issue that needs clarification.

tt: The answer to your third inquiry is "yes" for the same reasons as specified in the previous paragraphs. The policy reasons are set forth in ORS 801.020. Exemptions from coverage of the Vehicle Code are set forth in ORS 801.026 and ORS 801. 030. These exemptions do not appear to apply to your hypothetical situations.

rk: Would not such legislation itself be viewed by the higher courts as unconstitutional and be struck down for vagueness?

tt: If you choose to let your drivers license expire, your right to travel in this state will not be impacted so long as you choose to travel on foot, by horse, by bicycle, as a passenger in a vehicle operated by a duly licensed driver, by common carrier, or in or upon some other conveyance not requiring you to have a valid license to operate that conveyance. Your right to travel is only impacted when using a motor vehicle on public roads.

rk: In other words, you are saying that the State of Oregon and Josephine County arbitrarily restricts a citizen's mode of travel by using the ordinary and usual conveyance of the day, i.e. his private "Automobile," and thus converts his/her Unalienable Right to Liberty into a crime? Am I mishearing you?

tt: If you choose to drive a motor vehicle in this or any other state, it appears as though you will be subjecting yourself to the applicable licensing requirements of that state.

rk: Or, in the process of exposing legislation which runs counter to our U.S. Constitution, this issue may well cause a realignment of present governmental practices which do not confine themselves within the original parameters of the U.S. Constitution.

tt: I hope this response has been helpful to you. I apologize for the brevity of the response, however, time constraints and the press of other matters limit the time I can justify spending on such issues.

rk: Sorry, Mr Thompson, I don't buy your apology. This is a matter of utmost importance to the Citizens of Josephine County and the American People. What other "pressing matters" could possibly overide this?

rk: Since I am not a lawyer, I seek neither to argue nor compete with your considerable verbal talents. In this communication I have attempted to examine the Constitutional Issue of Unalienable Rights of Citizens. In my view such rights are inarguable and cannot be reduced to petty squabbling via dualistic debate.

rk: My response to you will be posted publicly on the Internet Oregon newsgroups and other pertinent newsgroups. This issue, sir, will not go away.

Ray Karczewski
Very truly yours,
Timothy R. Thompson
District Attorney