Making up the law as they go along

Submitted by Bill St. Clair on Sun, 02 Dec 2001 10:51:58 GMT
FROM MOUNTAIN MEDIA
FOR IMMEDIATE RELEASE DATED DEC. 2, 2001
THE LIBERTARIAN, By Vin Suprynowicz
Making up the law as they go along

If the courts won't enforce the written law -- if they simply make up whatever's necessary to protect the state's power and its revenues -- why should the rest of us act as though there's any law that binds us? Aren't we then equally free to just make up whatever's convenient, as well?

Chad Dornsife, Nevada representative of the National Motorists Association, says "I thought we had 'em cold, if you want to know the truth."

Local pipefitter Mike Mead, 53, gainfully employed, a father of three and a grandfather, was driving along a four-lane road "behind the K-Mart, east of Boulder Highway" at Racetrack and Newport roads in Henderson at 2:30 on the sunny afternoon of June 26, 2000, when one Officer Roy of the Henderson police department pulled him over and wrote him up for going 47 miles an hour in a 35 mph zone.

"At that time there was no school zone there, where he got me was on a four-lane road. The weather was good. ... He absolutely did not find me doing anything dangerous; I was in a crowd of cars that I thought I was keeping up with. ... Those people leave those housing tracts and they do lickety bob down to the K-Mart -- they go as fast as they can go, I'll tell you."

Mead ended up paying the municipality a total of $95, "I believe it was $45 for the fine and $50 for court fees, though it could have been the other way around."

He could have gotten off a lot cheaper if he hadn't fought the ticket, of course -- the folks in charge of our courts these days apparently think "justice" is best served by offering cash rebates for paying up and not rocking the boat.

"I was offered a $25 fine and go to driving school; they offered me a deal saying I didn't do nothing wrong. It's just for revenue generation; if I went to school and paid a $25 fine there'd be no points on my drivers license, so how can they claim I was doing anything dangerous?"

But Mead had heard of a case won by Mr. Dornsife up in Reno, by pointing out to the court that Nevada is bound by both state and federal law to show a written engineering study justifying any posted speed limit. And "There's absolutely no way there'd been a study done there and justified 35 miles an hour," Mr. Mead figured.

So he called and wrote the Henderson city Traffic Engineer, John Bartels, asking whether there was an engineering study for that stretch of road. And indeed, he was told -- first orally and then in writing -- there's no engineering study backing up any speed limit sign in Henderson.

"He told me, 'We just design the road for 45 miles and hour, and then set the speed limit 10 miles an hour below the design speed,' which allows them to write their tickets and raise their revenue."

The letter submitted into evidence (as Exhibit Number One) upon appeal of Mead's conviction to the District Court of Judge Joseph Bonaventure is from John Bartels, city traffic engineer of the Henderson Public Works Department, and clearly affirms no study was conducted.

"In your faxed letter, you inquired as to whether or not a speed limit study was ever conducted on Racetrack Road between Boulder Highway and Warm Springs Road," wrote Bartels. "The City of Henderson has not, to my knowledge, conducted a speed limit study on this section of highway."

Nevada Revised Statute 484.781, titled "Adoption of manual and specifications for devices for control of traffic by department of transportation," covers all such devices in Nevada including the speed limit signs themselves, and (in compliance with a separate federal law which requires any state accepting federal highway funds to adopt this statute, by the way), stipulates:

"2. All devices used by local authorities or by the department of transportation shall conform with the manual and specifications adopted by the department." The manual mentioned (the state had no choice - it's the manual they're required to adopt if the want the federal highway moneys) is the national Manual on Uniform Traffic Control Devices (MUTCD), published by the Federal Highway Administration.

The updated Millennium Edition of MUTCD, at Section 2B.11 "Speed Limit Sign (R2-1)," stipulates (remember, this has now been adopted as Nevada law): "After an engineering study has been made in accordance with established traffic engineering practices, the Speed Limit (R2-1) sign shall display the limit established by law, ordinance, regulation, or as adopted by the authorized agency. The speed limits shown shall be in multiples of 10 km/h (5 mph).

But in the Henderson case, "They admitted there was no study done or any documentation," insists a still incredulous Chad Dornsife of Reno. "This passage couldn't be clearer."

# # #

And what is the legal definition for the term 'engineering study'? "MUTCD 1A.13 Engineering Study: The comprehensive analysis and evaluation of available pertinent information, and the application of appropriate principles, Standards, Guidance, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, operation, or installation of a traffic control device. An engineering study shall be performed by an engineer, or by an individual working under the supervision of an engineer, through the application of procedures and criteria established by the engineer. An engineering study shall be documented."

"Documented," which in legalese always means: "in writing."

Yet on Nov. 14, putting the continued cash flow of the traffic fine system ahead of such arcane notions as enforcing the law as it's written, District Court Judge Joseph Bonaventure ruled in the case of Mike Mead travelling 47 miles per hour, even after admitting into evidence the unrebutted letter from the city admitting there was no engineering study, as follows:

"Having read the briefs and the record below and having heard oral arguments of the parties, the Court finds that an engineering and traffic study was performed by the City and that the numeric speed limit of thirty-five miles per hours (35 mph) was reasonable and not arbitrarily set."

"There was no study done there and the judge said 'My ruling is that there was a study done.' The city said, 'We didn't do one,' " laughs an amazed Mike Mead. "(Judge Bonaventure) said 'I was a municipal judge for 10 years and I never heard of this manual; I never even heard that there was a rule like this.' He says, 'I do murder cases and I have never seen a brief this thick.' So he took three weeks to study it and then he sent his ruling to the city; he didn't send it to me. I was the one who appealed it and he didn't even have the courtesy to send me a ruling.

"When I went to district court I thought I would get something decent because I know the judge in Henderson lives off of those fines," Mead explains. "That's his paycheck; that's his pension. I should have asked him to recuse himself because his pension is part of those fines. But at the district court, I would not have thought to do that. ...

"I'm amazed now that there may be thousands of cases where the city has not done an engineering study. ... I asked him, how many studies can you show me around town, and he told me on the telephone, 'None; we haven't done any.' "

Chimes in Dornsife of the National Motorists Association: "The letter clearly shows no study was done; federal and state law both clearly say the study has to be a written document; a 'study' can't just be some guy eyeballing the road and pulling his chin and saying, 'Looks like 35 miles an hour to me.' "

And the irony is, Dornsife insists, that accident rates are actually reduced when states like California have done the required engineering studies and posted the (often higher) legally justified limits which result, since traffic then moves more freely, without bottlenecks and the frustration which can lead to truly dangerous driving behavior.

"How can you check to see if the study was done right when there's no study? ... The last sentence of the law says 'and it shall be documented.' ... I thought we had 'em cold, if you want to know the truth. On the federal web site it says, 'There are no exceptions.' ...

"This isn't rocket science. ... There is a national standard and practices code. We simply ask that it be followed. And when it's followed, accident rates go down! Beyond speed limits, this includes signal timing, stop-sign use ... crosswalks, speed bumps ... a whole litany of other issues."

# # #

But why would Judge Bonaventure -- who didn't return my calls last week -- have blatantly lied and said there was a written study done if there really isn't one?

"Because if Nevada followed the law it would be a threat to the paychecks of the very judges, district attorneys, city officials, traffic officers, and all the rest that depend on these fines for their very subsistence," Dornsife responds.

"And it's a clear conflict with another tenet of our laws that the trier of fact, the prosecution and state witnesses should not have a financial interest in the outcome of a case. But contrary to this basic tenet, here they literally live off and are virtually wholly dependent on the fines collected. ...

"Moreover, in a very telling justification for the conviction, the Henderson District Attorney in their brief argued that speed traps are legal in Nevada. ...

"We do not have a rule of law. What's happened in Nevada and it's happened in every state is that the courts are wholly dependent on this damned traffic money. ... It's a farm system for the theft of public funds; it's just like this judge out here in Mina (Nevada) who bought the radar for the local cops to use to improve the income for his court. What kind of insanity is that?"

Legislators like Lynn Hettrick and Maurice Washington have worked with Dornsife attempting to put teeth in the state law against these illegal speed-trap schemes since 1991, he says - proposing laws which would bar the use of radar to enforce speed limits not backed up by the proper engineering studies, for instance - but Dornsife says State Sen. Bill O'Donnell has used his position on the Transportation Committee to block such reforms in three separate sessions.

"There's just too much money involved; you'd be goring too many sacred cows; the courts are too dependent on all these dollars ...

"I think it would be good for people to find out just how corrupt the courts are," Dornsife pleads. "This case in Las Vegas just put me over the edge. ... How can you go to court with such clear, decisive evidence and just have them throw it out? The primary duty of the Nevada Highway Patrol now is writing speeding tickets and every court in the state lives off that; it's a whole infrastructure now based on not safety, but revenue. I haven't seen a single court in Nevada where you can get a fair trial (in a traffic case.)"

The state Supreme Court tells him "this is not an issue that's of interest to them," Dornsife says; Assistant Attorney General Brian Hutchins "told me their job is to protect the DMV, not the public.

"So if we can't get relief in the courts and the courts are going to rule nonsensically, where do you go? It's clear that the court is not following the law. ... Henderson acknowledges there is no study; yet the courts rule there has been an engineering study, so you can't get there from here."

Indeed: If the courts won't enforce the written law - if they simply make up whatever's necessary to protect the state's power and its revenues - why should the rest of us act as though there's any law that binds us? Why aren't we equally free to just make up whatever's convenient as we go along, as well?

Mike Mead's appeal was case C176390; Chad Dornsife can be reached at 775-851-7950 or via e-mail at chad@hwysafety.com. Judge Joseph Bonaventure did not return my calls.

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. Subscribe to his monthly newsletter by sending $72 to Privacy Alert, 561 Keystone Ave., Suite 684, Reno, NV 89503 -- or dialing 775-348-8591. His book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available at 1-800-244-2224, or via web site www.thespiritof76.com/wacokillers.html.

Vin Suprynowicz, vin@lvrj.com

"When great changes occur in history, when great principles are involved, as a rule the majority are wrong. The minority are right." -- Eugene V. Debs (1855-1926)

"The whole aim of practical politics is to keep the populace alarmed -- and thus clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary." -- H.L. Mencken

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