Dear Ernie:

      Thank you for taking the time to listen to my grave concerns regarding the new Statutory Speed Limit definition in the “Millennium Edition of the MUTCD”. On its face this is a violation of due process, Congress’s legislative intent adopted in the 1966 Highway Safety Act and your agency’s mandate to steward this manual.

      Why am I so concerned, there are dire unintended consequences that can arise from the inclusion of this definition in your glossary. This manual is the law of the land and anything in it must be included only after due caution and thorough review. Title 23 and the MUTCD mandates are virtually unknown to legislators and regulatory authorities exercising police powers at every level of government – federal (EPA), state and local.

      The Statutory Speed Limit definition eliminates and nullifies required conditions precedent found in the new section 2b.11. Those few that are aware will simply make all limits statutory, already common practice, and engineering studies will no longer be required for any roadway – to the documented detriment of safety. Most traffic control in the nation is already based on political conjecture, this new for 2000 definition compounds the problem for those of us who are trying to empower engineering judgement as the primary consideration.

      Statutory Speed Limit: is a definition in the 2000 MUTCD that has no basis–in–fact determination, conditions precedent, guidelines, standards, or uniformity of application to be met or specified in a NATIONAL STANDARD – an incongruity, safety hazard and violation of due process. It authorizes “by reference” the use of federally regulated safety devices requiring basis–in–fact findings under CFR guidelines without any such finding whatsoever. It authorizes the posting of an invented numeric at the whim of the local political authority in a manner on the whole that has been documented to be detrimental to safety. Traffic Engineers and state agencies have been fighting for years to rein in totally unjustified and unfounded legislative and local police power assaults on MUTCD standards. In some cases state legislators have ordered speed limits posted 10 to 20 under the zero percentile speeds – this inclusion by reference virtually removes any such future political impediments.

      Clear violation of Due Process. This new addition by reference sanctions unequal treatment and application under the color of law with within a mandated national uniform standard. There are innumerous examples of this unequal treatment and application – literally thousands. Rhetorically, how many political entities are there?

      Real life illustrative example: US 95 going south at 75 mph from Idaho into Oregon where the highway conditions and traffic service levels remain constant – as a motorist crosses a political border the numeric displayed changes 20 mph. In Idaho the motorists was operating safelyä when they cross the line into Oregon, they are now committing a misdemeanor, reckless driving and subject to high fines and incarceration. A few miles farther south in Nevada, they are again driving safely, but they are violating a 70 mph posted limit set by a political appointee – not by the legislature or on the basis of a study. Further, the motorists is now under a law that permits drivers to exceed the limit without drivers points being assessed if they are at or under 75 mph, and if stopped, pay the fine. A non–safety violation, yet a source of revenue for the state.

      Under the color of law, all these jurisdictions used the same federal device with unequal application to legitimize enforcement of its police powers;

1     All display a different invented numeric for like conditions and traffic service levels.
2     None were posted on the basis of an engineering study for the particular section of highway being regulated as required under ’88 MUTCD section 2B10, Speed Limit Signs (R2–1)
3     All these limits were set by political decree
4     All subjected motorists engaged in interstate travel and commerce to very different penalties under the law.
5     All postings are absent the required conditions precedent required in the 1966 Highway Safety Act and its MUTCD.
6     All were an unauthorized use and application of a federal safety device with unequal treatment and application for the same conditions – violation of due process.
7     All violate of tenets of the federal charter that empowered the National MUTCD and its uniform traffic control standards mandates.

      Many states adopted Title 23 mandates in a single sentence or paragraph without referencing Title 23 in the controlling state statute. Generally for those states that have done as suggested under Title 23 and inserted the recommended federal language, it fails to convey its full meaning and importance; in many other states this language is decades old and referenced in, making it even less clear. In the rest of the states, this authority in state law is delegated to the state DOT by that state’s legislature and/or local authorities without mentioning this mandate in statute or its volumes of guidelines, national standards and guiding canons of the engineering profession that must be followed.

      Consequently, in every state, perfunctory administrators routinely certify compliance with the Title 23 to receive its benefits, while its mandates remain virtually unknown to the legislators and every other political entity within the state exercising regulatory and policing powers. Resulting in widespread non–compliance with the law, confusion and chaos when the issue is raised!

      At any given time I have dozens of cases where I am helping motorists fight traffic cases across the nation where the authorities and the courts claim they donπt have to comply with the MUTCD.

      Entire states have widespread non–complying devices, including major metro transportation districts. One such agency this year in MA claimed in writing they donπt have to, nor are they going to comply with the MUTCD. In Washoe County Nevada, they didnπt like the MUTCD Stop Sign section, so they wrote their own and ordered the county public works department to implement the Board of Supervisorπs new standard. In too too many other cases, they claim it is at most a guideline and that local police powers are paramount, and the political authorities routinely order engineers against their professional judgement to install devices they object to. The FHWA’s general policy of non–confrontation hasn’t helped much.

      Not only do these political entities not follow the MUTCD mandates, most of the traffic control devices in the nation are posted absent engineering studies because posting authorities aren’t even aware of the importance these studies play in traffic control decisions. Leaving most traffic control being based on unfounded conjecture while using official devices that are in compliance in appearance only, not application the core tenent of the MUTCD charter.

      34 year later, the above goes on despite the federal mandates found in the 1966 Highway Safety Act. The inclusion of Statutory Limits definition provides a broad basis to further circumvent sound engineering practices.

      This is exactly opposite of the stated mandates of this Act that your agency’s stewardship is entrusted with. The Act abolished the patriarchal practice of each political entity in the nation, based on local tradition or conjecture, deciding the appearance of “traffic control devices” and what, where and how such devices would be used in their town, county or state. In this Act’s remedy, Congress specifically preempted all state laws to facilitate the adoption of a uniform NATIONAL traffic control standard. This definition by inclusions authorizes device use with no basis in fact, oversight or national standard.

      For a state or local posted speed limit to be lawfully established, the numeric value displayed on this federally regulated traffic control device (federal designation, R2–1) must have been determined in accordance with the conditions precedent specified in Title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.601 through 655.603; which specifies mandatory compliance with the Standards in the National Manual on Uniform Traffic Control Devices (MUTCD); the Supremacy clause provision under Article IV, Section 2 of the U.S. Constitution, providing that federal law is superior to and overrides state law when they conflict; and due process under the U.S. Constitution. The federal standard clearly states “regardless of type or class or the governmental agency having jurisdiction”.

      The United States Constitution requires that laws be fact–based. A non–fact–based law violates due process. Why? Due process includes the notion that, on science and engineering issues and such type issues, only facts will be presented in court, not myth, not speculation. Case law to the same effect regarding an EPA standard, Industrial Union Dept. v. American Petrol. Inst., 448 U.S. 607 (1980) Denial of equal protection is also a violation of due process, and the inclusion of the Statutory Speed Limit definition without a standard to support it or guidelines in effect, authorizes unequal application under the color of law with no protection.

      California has unique Speed Trap statutes where what constitutes a justified engineering study has been thoroughly adjudicated. From a safety perspective, Californiaπs courts have long recognized the fact that adhering to sound engineering practices is proper remedy in law to both protect the state’s safety interest, while providing its citizens protection from enforcement of arbitrary and unreasonably low posted speed limits.

      This is the promise of the National MUTCD. This process has served the citizens and that state well, and compliance with these principles for most highways within California has been proven to actually reduce accident rates and increase overall safety.

      The federal law and its MUTCD is an ironic twist on federal government preemption. The drafters knew that safety is best served when the actual road being regulated is reviewed taking into account all factors. Traffic engineering studies become the cornerstone basis–in–fact finding as to what traffic control devices or safety mitigation may be warranted. Because, without a study, all traffic control is based on unfounded conjecture and safety is compromised.

      Federal law says according to LOCAL conditions, after engineers have personally determined how the people who use that particular section of highway are driving and they have reviewed the highway facilities, existing traffic control devices and accident data. Then they are directed to apply nationally accepted and verified sound engineering practices to remedy any problems and best manage the flow for the conditions found – not conjecture from Washington, State Capitals or Local Politicians.

      There is no authority within the federal law and its MUTCD to post arbitrary statutory numeric on an official regulated traffic control device nor is there authority to post any device except those that are in full compliance with said law. Second because statutory limits are invented numeric; using invented numbers to represent numeric values that are resolutely identified as matters of science is unconstitutional and violates due process.

      Contrary to the requirements of the aforesaid federal laws, engineering findings and the due process clause of the Constitution, on its face, any statutory numeric is an invented number. Inserted into the said state statutes by a political body, without supporting location specific fact–based engineering studies determining the appropriate numeric value for that particular section of highwayä and the invented numeric is in direct conflict to the body of knowledge that is the core of the traffic safety engineering profession’s findings – a matter of science; as required by the aforesaid federal law and due process provisions.

      Congress can itself set speed limits, and we know, has done so at two points in our Nation’s history. That last action was called the National Maximum Speed Limit (NMSL) in response to National Fuel Emergency.

      When the NMSL was repealed, that of course did NOT repeal all the prior existing and still extant law, including the aforesaid requirements that traffic control devices be fact–based and in compliance with the National MUTCD.

      Customs and usages do not define or create law. In law, “what ought to be done us fixed by a standard . . . whether it usually is complied with or not.” Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903). Law exists, is “designed to disrupt,” nonconforming practice, U.S. v City of Los Angeles, 595 F2d 1386, 1391 (CA 9, 1979). A “practice” “not based upon any rule of law” must be reversed, Biafore v Baker, 119 Mich App 667; 326 NW2d 598 (1982); The T. J. Hooper, 60 F2d 737, 740 (CA 2, 1932). But sometimes, violations in disregard of the rule of law, have developed, and continued through generations. Nonetheless, the Constitution is “designed to disrupt” practice, so customs and usages do not define or create law, but must be superseded and ended by it, when the issue is raised.

      There is a procedure and process that would be within the law and meet traffic engineering study guidelines to establish some forms of statutory limits – but these limits would be based on engineering studies and findings that are area specific.

      No statutory posted limit can be legal under federal law unless the conditions precedent for the regulatory traffic control devices are met.

      If this Statutory Speed Limit definition and authorized use by reference remains in the MUTCD, I believe you are in violation of your federal regulatory authority just like EPA in the cited case above – they invented a new standard and the Supreme Court found it in violation of their authority. In this case, you are allowing by definition the use of official federal regulatory traffic control devices that fail the uniformity of application requirement, the equal protection challenge, and by reference you have adopted a standard that is no standard at all. It invites unsafe practices to take precedent over established sound engineering practices.

      Anxiously awaiting your assistance in this matter of concern,

Sincerely,
Chad Dornsife
chad@hwysafety.com
775.721.2423 cell
800.708.5723 fax

Nevada Chapter
National Motorists Association
Box 141 Zephyr Cove, Nevada 89448
http://www.motorists.org

Link to Addendum Dated 12/22/00
Link to Addendum Dated 01/01/01