How to Make Our Roadways More
Efficient and Safer, Too!
ItÕs already the law, all we have to do is apply it.
Foundations for a Court Challenge to Make it Happen.
By Chad Dornsife,
Best Highway Safety Practices Institute
July, 15 2006
When President Eisenhower had the foresight to establish the
interstate highway system our nation truly became united. Every aspect of our
society became stronger. It changed the very fabric of our lives. The need to
have uniform traffic control became an organized effort in the 1920Õs but the
interstate system made it clear this safety initiative was yet to be realized.
Despite the early efforts we still had tens of thousands of entities, each with
their own systems. As a nation we had to act. For safety to be served, uniformity
of appearance and expectation became a national safety imperative. An
imperative we hold is still true today.
In 1966, President Johnson and Congress came to together and
adopted a rare law that relied on professional standards and knowledge rather
than political conjecture as its foundation. For safety to be served this new
law required our highway safety standards to based only on best practices
because it applied to all roadways open to public travel equally.
The Highway Safety Act of 1966 was CongressÕ one nation, one
traffic control authority. In this act, all traffic control standards were
turned over to the engineersÕ and their institutions to make sure that only
those practices that are found to improve efficiency and safety are adopted. In
1971 the look and shape of all devices had to comply, and in 1988 this
authority was expanded to include engineering studies, standards and practices.
Any statute or regulation adopted absent these legacy
minimum statuary federal requirements/foundations would be void.
In spite of CongressÕ mandate, the USDOT has now purported
to authorize widespread noncompliance with the US Code of Federal Regulations
and their own charter as an agency. We have irrefutable evidence that this is
an unlawful act in violation of CongressÕ uniformity and safety mandates, all
to the clear detriment of public safety. This dereliction of responsibility and
genuflecting has been directly responsible, each year, for the unnecessary
deaths of thousands, and mayhem for ten of thousands more.
The USDOTÕs refusal to oversee CongressÕ mandate has also
allowed complete anarchy in application and expectation to go unchecked.
Virtually every major traffic law in every state has been promulgated in
violation of the governing law, and these errant practices continue unabated.
The more notorious unlawful uses of state power includes the under posting of
speed limits with unlawfully established safety values, inadequate yellow
intervals to sustain automated enforcement. This is also the real killer too,
because to facilitate these inexcusable practices they eliminated the only
program that truly saves lives, mandatory periodic engineering studies.
Likewise, they have also turned a total blind eye to other extremely unsafe
practices and uncontrolled access management policies so as to not upset
shortsighted local political self-interest and whim.
Engineering studies are periodic safety audits to assure
that traffic control is set to meet the needs of traffic and to identify
problem areas that may have become apparent where mitigation may be warranted.
Traffic access management plans look at the roadways primary function then sets
forth guidelines to maintain optimum flow and minimize conflicts. Everybody
wins, commerce, quality of life, property values, reduced accidents and lower
pollution, too.
Here you will find the basis to restore safety, improved
efficiency, reduced pollution, the promise of The Highway Safety Act of 1966
and cause the USDOT to return to policies that enhance the publicÕs general
welfare rather than their own self-interest. The thirty thousand foot view;
Federal Law Mandates Uniform Standards:
One appearance, application and expectation regardless of
entity type or jurisdiction or state lines.
ÒThe U.S. Secretary of Transportation,
under authority granted by the Highway Safety Act of 1966, decreed that traffic
control devices on all streets and highways open to public travel in accordance
with 23 U.S.C. 109(d) and 402(a) in each State shall be in substantial
conformance with the Standards issued or endorsed by the FHWA.Ó
23 CFR 655.603 adopts the MUTCD as the
national standard for any street, highway, or bicycle trail open to public
travel in accordance with 23 U.S.C. 109(d) and 402(a).
MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES
INTRODUCTION
Standard:
Traffic control devices shall be defined
as all signs, signals, markings, and other devices used to regulate, warn, or
guide traffic, placed on, over, or adjacent to a street, highway, pedestrian
facility, or bikeway by authority of a public agency having jurisdiction.
23 CFR 655.603(b)(1)
(b) State or other Federal MUTCD.
(1) Where State or other Federal agency
MUTCDs or supplements are required, they shall be in substantial conformance
with the national MUTCD. Changes to the national MUTCD issued by the FHWA shall
be adopted by the States or other Federal agencies within 2 years of issuance.
Section 1A.06 Uniformity of Traffic
Control Devices
Support:
Uniformity of devices
simplifies the task of the road user because it aids in recognition and
understanding, thereby reducing perception/reaction time. Uniformity assists road users, law enforcement
officers, and traffic courts by giving everyone the same interpretation.
Uniformity assists public highway officials through efficiency in manufacture,
installation, maintenance, and administration. Uniformity
means treating similar situations in a similar way. The use of uniform traffic
control devices does not, in itself, constitute uniformity. A
standard device used where it is not appropriate is as objectionable as a
nonstandard device; in fact, this might be worse, because such misuse might
result in disrespect at those locations where the device is needed and
appropriate.
States Rights:
Accepting the benefit of a federal program bars any claims
that it is unconstitutional.
Pennhurst v. Halderman, 451 U.S. 1, 17
(1981). Federal Power Commission v. Colorado Interstate Gas Co., 348 U.S. 492,
501-502 (1955).
States accept benefits/supremacy of federal regulations in
exchange for federal highway funds each time they accept a payment.
US 23 CFR 630.112(a)
Sec. 630 .112 Agreement provisions.
(a) The State, through its transportation
department, accepts and agrees to comply with the applicable terms and
conditions set forth in title 23, U.S.C., the regulations issued pursuant
thereto, the policies and procedures promulgated by the FHWA relative to the
designated project covered by the agreement, and
all other applicable Federal laws and regulations. (Emphasis added)
Supremacy Clause:
"The Supremacy Clause of Art VI of
the Constitution provides Congress with the power to pre-empt state law.
Preemption occurs when Congress, in enacting a federal statute, expresses a
clear intent to pre-empt state law, * * * when there is outright or actual
conflict between federal and state law, * * * where compliance with both
federal and state law is in effect physically impossible, * * * where there is
implicit in federal law a barrier to state regulation, * * * where Congress has
legislated comprehensively, thus occupying an entire field of regulation and
leaving no room for the States to supplement federal law, * * * or where the
state law stands as an obstacle to the accomplishment and execution of the full
objectives of Congress." Louisiana Public Service Comm. v. FCC, 476 U.S.
355, 368-69, 106 S Ct 1890, 90 L Ed 2d 369 (1986).
ÒWhere a state statute conflicts with, or
frustrates, federal law, the former must give way.Ó U.S. Const., Art. VI, cl.
2; Maryland v. Louisiana, 451 U.S. 725, 746 (1981).
Arbitrary and Capricious:
There are nationally recognized prescribed procedures to
determine the safety value of a posted limit or to assure the timing of a
traffic signal meets the needs of traffic or if the signal or stop sign was
warranted in the first place et al. Any value established by conjecture absent
this on its face is arbitrary and capricious.
ARBITRARY AND CAPRICIOUS - Absence of a
rational connection between the facts found and the choice made. Natural
Resources. v. U.S., 966 F.2d 1292, 97, (9th Cir.'92). A clear error of
judgment; an action not based upon consideration of relevant factors and so is
arbitrary, capricious, an abuse of discretion or otherwise not in accordance
with law or if it was taken without observance of procedure required by law. 5
USC. 706(2)(A) (1988).
ARBITRARY:
1: depending on individual discretion (as of a judge) and not
fixed by standards, rules, or law
2 a: not restrained or limited in the exercise of power
b: marked by or resulting from the unrestrained exercise of
power
3 a: based on preference, bias, prejudice, or convenience
rather than on reason or fact
b: existing or coming about seemingly at random or by chance
or as an unreasonable act of individual will without regard for facts or applicable
law
CAPRICIOUS:
1: governed or characterized by impulse or
whim: as
a: lacking a rational basis
b: likely to change suddenly
2: not supported by the weight of evidence
or established rules of law
Commerce Clause:
Under the Commerce Clause, a state cannot adopt regulations
substantially affecting interstate traffic without compelling research that
supports that regulation.
450 U.S. 662; Kassel v. Consolidated
Freightways Corp., No, 79-1320
Therefore, a regulation adopted by the legislature or
purported authority to use a federal device, or an ordinance, statute or
regulation by a state or local authority that affects interstate commerce
absent a sustainable foundation, is void. In my opinion, any regulation that
would justify a traffic stop, an act that puts the occupants of vehicles in
serious immediate jeopardy, substantially affects interstate traffic, meeting
the threshold. Moreover, since 1979, when the Supreme Court came to this
decision interstate travel within the United States has become omnipresent and
individuals now can easily transit through many states and hundreds of discreet
jurisdictions in a single day. Without uniformity of meaning, expectation and
factual foundations, no reasonable person could ever be expected to comprehend
or know each township, city, county, reservation, state or county, federal or
state park lawÕs unique expectations and or arbitrary regulations that they may
have enacted.
Traffic Control laws Must Have Factual Foundations:
All laws have unintended consequences, and because the MUTCD
is the minimum engineering, application and safety standard for traffic control
on that applies to all highways open to public travel equally, regardless of type or class or the public
agency having jurisdiction, any practice or standard that is not
consistent with its uniformity and safety mandates is, on its face, unlawful.
The authority to compel compliance or remedy errant practices that may have
been purportedly authorized by the USDOT is founded in section 5 U.S.C. ¤ 706.
The Highway Safety Act of 1966 et al as adopted by Congress created a new
paradigm for the NationÕs traffic laws and its mandates encompass all of us;
individuals, law enforcement, public entities, the courts and the USDOT, too!
5 U.S.C. ¤ 706. Scope of review
To the extent necessary to decision and
when presented, the reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine the meaning or
applicability of the terms of an agency action. The reviewing court shall -
(1) compel agency action unlawfully
withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency
action, findings, and conclusions found to be -
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right;
(D) without observance of procedure
required by law;
(E) unsupported by substantial evidence
in a case subject to sections 556 and 557 of this title or otherwise
reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the
extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations,
the court shall review the whole record or those parts of it cited by a party,
and due account shall be taken of the rule of prejudicial error.
Source (Pub. L. 89-554, Sept. 6, 1966, 80
Stat. 393.)
Due Process:
There has been a concerted effort by the stakeholders in the
prosecution of traffic fines to remove due process and exculpatory evidence
from being used in an accused defense. In most jurisdictions traffic offenses
are now infractions or civil offenses that are not subject to discovery et al.
Worse, the federal Uniform Vehicle Code has been promulgated by the sponsors
and beneficiaries of the citation industry to include new guilty with no real
defense model laws. They advocate the removal altogether of problematic due
process issues from their automated traffic fine collection schemes. Thereby
removing any pretext of a link between the stateÕs professed safety objectives
and their desire to increase efficiencies in the collection of traffic fines
for themselves or their constituents.
Automated traffic law enforcement model
law
http://www.ncutlo.org/autoenforce622.htm
ÒThe model law imposes only a civil fine
for traffic law violations enforced via an automated traffic law enforcement
system and relies on an initial presumption of guilt. This approach is
not new as it is typically utilized for the enforcement of parking law
violations. As with parking violations, traffic law violations resulting
from automated traffic law enforcement are not recorded in drivers' licensing
files for possible point assessment or licensing action. Indeed, any
attempt to unfavorably influence persons' driving privileges, through the use
of this system, could raise due process of law concerns.Ó
Rather than a single expectation, the FHWAÕs refusal to
intervene and enforce CongressÕ uniformity mandates has left us with tens of
thousands of entities each applying their own definitions and expectations
regarding traffic control. If all local, city, county and state vehicle codes
and local ordinances where to be printed out, it would fill rooms, with most of
it established outside the federal statutory minimums. When confronted with a
non-compliance violation, rather than remedy it, the FHWA has unlawfully
eliminated the requirements time and time again, leaving the overwhelming
majority of traffic control laws in our nation based solely on local conjecture
with no factual foundation whatsoever. It has thereby violated the very
essences of due process that a person has a clear informed nature and cause for
the charges being levied against them, and that those charges are founded in
fairness. In addition, that the laws being enforces were lawfully established.
Neither is true for most traffic citations (tens of millions) anywhere in the
country.
DUE PROCESS - The idea that laws and legal
proceedings must be fair. The Constitution guarantees that the government
cannot take away a person's basic rights to 'life, liberty or property, without
due process of law.' Courts have issued numerous rulings about what this means
in particular cases.
The Sixth Amendment, which is applicable
to the states through the Due Process Clause of the Fourteenth Amendment, see
In re Oliver, 333 U.S. 257, 273-74 (1948), guarantees a criminal defendant a
fundamental right to be clearly informed of the nature and cause of the charges
against him. In order to determine whether a defendant has received
constitutionally adequate notice, the court looks first to the information.
James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994).
'The principal purpose of the information is to provide the defendant with a
description of the charges against him in sufficient detail to enable him to prepare
his defense.' Id.
Due process is best defined in one
word--fairness. Throughout U.S. history, its constitutions, statutes and case
law have provided standards for fair treatment of citizens by federal, state
and local governments. These standards are known as due process. When a person
is treated unfairly by the government, including the courts, he is said to have
been deprived of or denied due process.
Authorized Traffic Control Decisions:
MUTCD was established as the nationÕs vetted engineering
standard that applies to all roadways and bike paths open to public travel.
Therefore any practice that is adopted the supplants prior established best
practice that has not been properly vetted as for efficacy, or conflicts with
one-nation one-standard or is known to be less safe practice is repugnant to
CongressÕ uniformity and safety oversight mandate contained in Title 23 et al.
Engineering Judgment cannot be asserted when it is being
applied to an arbitrary and capriciously determined value or a personal
opinion. To be a valid engineering judgment the engineer must be able to
articulate which nationally recognized standards, research or practices they
have applied.
Under CongressÕ uniformity and safety mandate only a
licensed engineer can express an engineering opinion, and that opinion must be
consistent with nationally recognized best practices. Whereas, a political body
or any other political entity cannot express an engineering judgment nor can
they order or authorize the use of a traffic control device on a roadway or
bike path open to public travel except as provided for by federal law.
Purported federal authority to authorize non-complying
legacy state and local practices is repugnant on its face to CongressÕ mandate
of one nation, one standard.
Chad Dornsife, Director
Best Highway Safety Practices
Institute
2879 Champlain Drive
Portland,
OR 97205-5833
www.BHSPI.org
503.223.5447
Portland Office
775.721.2423 Reno Office
858.673.1926
San Diego Office
800.708.5723
Fax
775.721.2423 Cell
California Office
PO Box 270708
San Diego, CA 92198
858.673.1926