HOW TO WIN THE RIGHT TO DRIVE CASE
03/27/86
The City of Spokane, v. Julie Anne Port,
This
woman lost her “right to drive” case because it was not argued correctly. It
could easily have been won and made case law. So close but so far. Here is how
it could have easily been won.
Why lost: Woman admitted “state should have some right” –
that gave it all away. She should have denied the state ANY RIGHT and argued
that any private dealer would provide training to avoid the legal trap of
admitting the state has ANY right to license or otherwise deny the right to
drive. When you give the right to control who drives away in any form you are
allowing them to convert it to a privilege – privileges may be taxed or
denied.. One can also rescind or withdraw a license and application after having passed the driver test.
To have won this case this could and should have been argued
and done:
**Prove driving competence by taking drivers test, passing
and then canceling the license and withdrawing the supposed relinquishment of
the right or also claiming to reserve under the Uniform Commercial Code 1-207 (UCC 1-207 preserves all civil
rights) the right. Even if
licensed that license does not mean you
are not driving under right but both as a right and privilege. They can take
the privilege but the right still
exists.
***Do not allow for any
class of people (by age, sex or of common situation) to be
tested or certified by the state or licensing but anyone that
demonstrates they can drive at any age has the right.
HERE IS
THE CASE
Read line by line and
you will see how close this woman got and how using the above would have
allowed her to succeed.
03/27/86 The City of Spokane, v. Julie Anne Port,
[Editor's note: footnotes (if any) trail the opinion]
[1] COURT OF APPEALS OF WASHINGTON, DIVISION THREE
[2] The City of Spokane, Respondent,
v.
[3] Julie Anne Port, Petitioner
[4] No. 6927-3-III
[5] 716 P.2d 945, 43 Wash. App. 273
[6] March 27, 1986
[7] Reconsideration Denied May 5, 1986. Petition for Review
Denied by Supreme Court July 8, 1986.
[8] SYLLABUS
[9] Nature of Action: Prosecution for driving without a valid
operator's license and for resisting arrest.
[10] District Court: The Spokane Municipal Department of the
Spokane County District Court, Nos. 84-103018, 84-103680, Richard F. Wrenn, J.,
on September 20, 1984, entered a judgment on a verdict of guilty.
[11] Superior Court: The Superior Court for Spokane County,
No. 84-1-00811-4, Thomas E. Merryman, J., on February 4, 1985, affirmed the
judgment.
BLUE BOOK CITATION FORM: 1986.WA.116
(http://www.versuslaw.com)
[12] APPELLATE PANEL:
[13] McInturff, J. Green, C.J., and Thompson, J., concur.
[14] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE
MCINTURFF
[15] We are asked to determine whether RCW 46.20.021 and
Spokane Municipal Code 16.20.021, requiring a motor vehicle operator to be
licensed, unconstitutionally restrict one's right to travel.
[16] On July 7, 1984, Spokane police officer Michael Heinen
observed a motor vehicle, operated by Julie Anne Port, proceed through a steady
red traffic control light in downtown Spokane. The officer stopped the vehicle
and asked Ms. Port for her driver's license no less than six times. After she
refused to respond to these requests, Ms. Port was arrested and cited for
refusal to give information or cooperate with an officer, no valid operator's
license, and resisting arrest. Spokane Municipal Code 10.07.030, .050,
16.20.021. The first of these charges was dropped prior to trial. After a
district court jury found Ms. Port guilty on both counts, she appealed to the
Superior Court, which affirmed the conviction. This court granted discretionary
review.
[17] Ms. Port contends RCW 46.20.021 and Spokane Municipal
Code 16.20.021 are unconstitutional as applied to her because they improperly restrict
her right to travel upon the public highways. It is well settled that the
United States Constitution protects an individual's right to travel, although
it is not always clear which constitutional provision affords the protection.
See Califano v. Aznavorian, 439 U.S. 170, 175, 58 L. Ed. 2d 435, 99 S. Ct. 471
(1978); United States v. Guest, 383 U.S. 745, 16 L. Ed. 2d 239, 86 S. Ct. 1170
(1966); Kent v. Dulles, 357 U.S. 116, 2 L. Ed. 2d 1204, 78 S. Ct. 1113
(1958).*fn1 This
fundamental constitutional right applies both to interstate and intrastate
travel. Compare Shapiro v.
Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969) (interstate
travel) with Macias v. Department of Labor & Indus., 100 Wash. 2d 263, 272,
668 P.2d 1278 (1983) and Eggert v. Seattle, 81 Wash. 2d 840, 505 P.2d 801 (1973)
(intrastate travel). Freedom of movement is at the heart of our scheme of
values, for it may be as keen an interest of the individual as the choice of
what he reads, says, eats or wears.
[18] Ms. Port attempts to extend this fundamental rule,
alleging she has a right, rather than privilege, to operate a motor vehicle
upon public highways and streets. Consequently, she claims RCW 46.20.021 is
unconstitutional as it makes the exercise of that purported right a crime.
"Right" and "privilege" have assumed a variety of meanings,
depending upon the context in which they are used. As used here,
"privilege" means a qualified right or a particular advantage enjoyed
by a class, beyond the common advantages of other citizens, Black's Law
Dictionary 1077 (5th rev. ed. 1979); see also R. Pound, Readings on the History
and Systems of the Common Law 468 (3d ed. 1927), whereas "right"
connotes an interest belonging to every person. Black's Law Dictionary at 1190;
Pound, at 467-68. Compare 72 C.J.S. Privilege (1951 & Supp. 1985) with 77
C.J.S. Right (1952 & Supp. 1985). Hence, driving an automobile on our state's public highways
is a privilege and not a right because the activity is limited to a certain
class of individuals, generally those over the age of 16 years, who have passed
a driver's license examination.
RCW 46.20.031, .120.*fn2 This privilege is always subject to such reasonable
regulation and control as the proper authorities see fit to impose under the
police power in the interest of public safety and welfare. See State v.
Scheffel, 82 Wash. 2d 872, 880, 514 P.2d 1052 (1973) (one does not have an
absolute constitutional right to a particular mode of travel), appeal
dismissed, 416 U.S. 964 (1974); Crossman v. Department of Licensing, 42 Wash.
App. 325, 328 n.2, 711 P.2d 1053 (1985) (privilege to drive not a
"fundamental right"); State ex rel. Juckett v. Evergreen Dist. Court,
32 Wash. App. 49, 55, 645 P.2d 734 (1982) (driver's license is privilege
granted by State). This is because the right to a particular mode of travel is
no more than an aspect of the "liberty" protected by the due process
clause of the Fifth Amendment.*fn3 See Reitz v. Mealey, 314 U.S. 33, 86 L. Ed.
21, 62 S. Ct. 24 (1941). In Reitz,
the United States Supreme Court examined the privilege to travel on our public
streets and highways and concluded, in 314 U.S. at 36:
[19]
Any appropriate means adopted by the states to insure competence and care on
the part of its licensees and to protect others using the highway is consonant
with due process.
[20] See also Hendrick v. Maryland, 235 U.S. 610, 59 L. Ed.
385, 35 S. Ct. 140 (1915) (states may rightfully prescribe uniform regulations
necessary for public safety and order in the operation upon its highways of
motor vehicles and it may require the
licensing of drivers).
[21] Here, RCW 46.20.021 requires a license to drive or
operate a motor vehicle upon our state highways. Licensing is a means by which
the State may determine whether vehicle operators have acquired a minimal
standard of competence. Mandating driver competence is a public purpose within
the police power of the state because it furthers the interests of public
safety and welfare. It is designed to improve the safety of our highways and to
protect and enhance the well-being of the residents and visitors of our state.
RCW 46.01.011; RCW 46.20.021. This is a reasonable and justifiable exercise of
the police power.
[22] As previously noted,
Ms. Port does not allege the license requirement is unconstitutional (THE
FATAL MISTAKE) in all circumstances. She believes the State should issue a
"certificate of competence" rather than a driver's license. Ms. Port
claims she is constitutionally entitled to this special status because she is
not engaged in commercial travel. She relies principally upon quotations from
Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604 (1930) and Chicago
v. Banker, 112 Ill. App. 94 (1904). Although the Thompson court declared the
right to travel public highways an individual's "common right which he has
under his right to enjoy life and liberty," the court also noted that the
exercise of such a common right may be regulated under the City's police power
if in the interest of public safety and welfare. Thompson, at 377. The city
driver's license revocation ordinance at issue in Thompson was upheld except to
the extent it granted broad discretion to the city's chief of police to revoke
licenses. "The issuance and revocation of such [driving] permits by a city
is merely a means of exercising the police power of the State delegated to the
city to regulate the use of the public highways in the interest of the public
safety and welfare." Thompson, at 376.
[23] Nor do we find persuasive Chicago v. Banker, supra,
where the court determined the requirement of a driver license unfairly burdens
one who uses his automobile for private business and pleasure. The court
conditioned the ability to drive a motor vehicle upon driving which would not
interfere "with the safety of others." Chicago v. Banker, supra at
99. Furthermore, the issuance of a "certificate
of competence" (JUST PASS A CERTIFICATION FROM DEALER) would change
only the name, not the substance, of what is currently known as a
"driver's license" since one cannot obtain such unless driving
proficiency has been demonstrated. Because our State has determined that driver
education and licensing examinations enhance the ability of drivers and the
safety of our highways, RCW 46.01.011; RCW 46.20.021, we hold the statute here
is a reasonable regulation furthering the public safety and welfare. Only by
lifting statements from context and by ignoring difficult language does Ms.
Port make Thompson and Banker and other cases support her position. Providing
similar examples from other cases cited by Ms. Port would only unnecessarily
lengthen this opinion. See, e.g., Gordon v. State, 108 Idaho 178, 697 P.2d
1192, 1193 (Ct. App.), appeal dismissed, U.S. , 88 L. Ed. 2d 29, 106 S. Ct. 35
(1985), reh'g denied, U.S. , 88 L. Ed. 2d 912, 106 S. Ct. 874 (1986).
[24] Lastly, Ms. Port claims the state licensing statute
applies only to commercial operators of motor vehicles. She claims since she
was not engaged in the business of transportation, she did not violate the act.
[25] An unambiguous statute is not subject to construction;
there is no need to resort to dictionary definitions. Vita Food Prods., Inc. v.
State, 91 Wash. 2d 132, 134, 587 P.2d 535 (1978); Adams v. Department of Social
& Health Serv., 38 Wash. App. 13, 16, 683 P.2d 1133 (1984); State v. Hayes,
37 Wash. App. 786, 788, 683 P.2d 237 (1984). An ambiguous term is one that is
susceptible to more than one meaning. Adams, at 16; Harding v. Warren, 30 Wash.
App. 848, 850, 639 P.2d 750 (1982).
#26
Should not have been argued as could not been defeated and need not have been
argued.
[26] The statute in question, RCW 46.20.021, reads: "No
person . . . may drive any motor vehicle upon a highway in this state unless
the person has a valid driver's license issued under the provisions of this
chapter." Ms. Port's argument that this provision requires a license only
for those operating commercial vehicles is clearly without merit. RCW 46.04.370
eliminates any alleged ambiguity with respect to the violation here because the
section defines an operator or driver as "every person who drives or is in
actual physical control of a vehicle." Since Ms. Port was in actual
physical control of her vehicle when stopped, she came under the provisions of
RCW Title 46. See, e.g., In re Arambul, 37 Wash. App. 805, 807-08, 683 P.2d
1123 (1984).
[27] The judgment of the Superior Court is affirmed.
[28] CASE RESOLUTION
[29] Holding that requiring a driver's license in order to
operate a car was a valid exercise of the police power, the court affirms the
judgment.
***** BEGIN FOOTNOTEHERE *****
[30] *fn1 See also Edwards v. California, 314 U.S. 160, 177,
86 L. Ed. 119, 62 S. Ct. 164 (1941) (Douglas, J., concurring); Twining v. New
Jersey, 211 U.S. 78, 97, 53 L. Ed. 97, 29 S. Ct. 14 (1908); Williams v. Fears,
179 U.S. 270, 274, 45 L. Ed. 186, 21 S. Ct. 128 (1900); Crandall v. Nevada, 73
U.S. (6 Wall.) 35, 18 L. Ed. 744 (1867).
[31] *fn2 Virtually every state addressing this issue
concludes that the license to drive an automobile is a privilege which may be
extended to individuals under certain circumstances. E.g., State v.
Svendrowski, 692 S.W.2d 348, 349 (Mo. Ct. App. 1985); Department of Pub. Safety
v. Schaejbe, 687 S.W.2d 727, 728 (Tex. 1985); State v. Coyle, 14 Ohio App. 3d
185, 470 N.E.2d 457, 458 (1984); Hanson v. State, 673 P.2d 657, 658 (Wyo.
1983); Mackler v. A
[32] *fn3 The fifth amendment to the United States
Constitution provides:
[33] "No person shall be . . . deprived of life,
liberty, or property, without due process of law . . ."
***** END FOOTNOTEHERE *****
[Editor's note: Illustrations from the original opinion, if
any, are available in the print version]
Republished on the ACFC Website by written permission of
Versuslaw. Copyright 1996 VersusLaw, Inc. (206) 250-0142.
http://www.versuslaw.com
19860327
1986.WA.116