Roxy Huber, Executive Director
Colorado Department of Revenue
Department of Motor Vehicles
1375 Sherman St., Room 409
Denver, CO 80261
19 April, 2010 Certified Mail # 7006 2760 0002 1142 0729
Brief and Memorandum of Law
AFFIDAVIT OF TRUTH
ACTUAL AND CONSTRUCTIVE NOTICE
Dear Ms. Huber,
It has come to my attention, via several legal and constitutional sources, that the State of Colorado is illegally and unconstitutionally enforcing the Motor Vehicle statutes, as described below. This is my Evidence in Fact of my conclusions based on the following conclusions of Case and Constitutional Law.
I have several times written to the Secretary of State, Department of Revenue/Motor Vehicle Division, under CORA laws, on these issues but have not received any written acknowledgment or response to these legal requests, in violation of CORA laws.
I am requesting a response to this Affidavit of Truth, and Notice, (each and every point brought up), in rebuttal to these conclusions, and where it is in error, to provide documentation so I may understand and obey the true law. If no rebuttal is forthcoming within 30 days, this will be accepted as Evidence in Fact for my position and will permanently relieve me from any traffic enforcement harassment or compulsion to contract with the State of Colorado in any matter against my will.
Case Law in support of challenge:
"The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record." citing Butz v. Economou 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895, (1978). FEDERAL MARITIME COMMISSION v. SOUTH CAROLINA STATE PORTS AUTHORITY et al. certiorari to the united states court of appeals for the fourth circuit No. 01-46. 2.535 U.S. 743, 122 S. Ct. 1864, 152 L. Ed. 2d 962, (2002). Argued February 25, 2002--Decided May 28, 2002. See also FRCPA Rule 52(a) and United States v. Lovasco 431 U.S. 783 (06/09/77), 97 S. Ct. 2044, 52 L. Ed. 2d 752, and Holt v. United States 218 U.S. 245 (10/31/10), 54 L. Ed. 1021, 31 S. Ct.
"Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation." Ninth Circuit Court of Appeals, Lavin v Marsh, 644 f.2D 1378, (1981).
"Whatever the form in which the government functions, anyone entering into an arrangement with the government takes the risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority, even though the agent himself may be unaware of limitations upon his authority." The United States Supreme Court, Federal Crop Ins. Corp, v. Merrill, 332 US 380©388 L1947)
If no Findings of Fact and Conclusions of Law are presented, there is NO evidence for the State’s position, and there can be NO restrictions against me, and no adjudication of free rights where no injured party exists.
I also believe multiple violations of law and of my rights are occurring and I challenge these below.
1. Operating a private vehicle within the 50 states for private business is a RIGHT, not a privilege which can be taxed. Under Constitutional and Common law, the right for all free sovereign citizens of the several states to drive private vehicles can not infringed. The requirement of drivers' license to legally operate a private vehicle is unconstitutional and a violation of my Constitutional rights:
I am an un-enfranchised Sovereign, and authorized under statute at large, First Congress 1789, Session 1, Chapters, page 52; Articles of Confederation, Article 4-3-1-1781; MC 38: Title 18, Section 241, USC Title 42, Section 1983, 1985, 1986, of the unhampered use of all navigable waters and all common law highways, roadways, and byways which are used for transport either private, public, or commerce anywhere in these United 50 States of America.
Case Law in Support:
"A licence when granting a privilege, may not, as the terms of its possession, impose conditions which require the abandonment of constitutional rights." Frost Trucking Co. v. Railroad Commission, 271, US 583, 589, (1924); Terral v. Burke Construction Company, 257 US 529, 532 (1922).
"The acceptance of a license, in whatever form, will not impose upon the licensee an obligation to respect or to comply with any provision of the statute or with the regulations prescribed that are repugnant to the Constitution of the United States." Collier v. Wallis, 180 US 452 (1901) 333 US 426, 606 CL (1936) 56 P2d 602.
"The 'liberty' guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men." Mere v. Nebraska 262 US 390, 399; US v. Won Kim Ark 169 US 649, 654.
"It (the legislature or statutory laws) may not violate constitutional prohibits or guarantees OR AUTHORIZE OTHERS TO DO SO." Lockard v. Los Angeles 33 Cal2d 553; Cert den 337 US 939.
"It is clear that a license relates to qualifications to engage in profession, business, trade or calling; thus when merely traveling without compensation or profit, outside of business enterprise or adventure with the corporate state, no license is required of the natural individual traveling for personal business, pleasure and transportation." Wingfield v. Fielder (1972) 29 CA3d 213.
"No statutory duty lies to apply for, or to possess a drivers' license for personal travel and transportation as defendant is not within the 'class of persons for whose benefit or protection the statute was enacted." Routh v Quinn, 20 Cal2d 488
Under Constitutional and common law, my right to travel cannot be infringed. Supreme Court Case law provides that all sovereigns have the right to freely travel in the 50 states unencumbered, requiring no "license" to do so, and as long as there is no injured party, there can be no sanctions (speeding fine or license points) against me. No "drivers' license" is required save for commercial driving applications. It is unconstitutional for the State to demand and require a drivers' license from anyone of age, and also cannot legally tax for such right to travel. Since a license to travel is unconstitutional, it stands that where no injury has occurred... no injured party involved with any legal action, there can be no sanctions for operating a private vehicle save for common law violations involving a damaged or injured party.
I being an un-enfranchised Sovereign, am authorized under statute at large, First Congress 1789, Session 1, Chapters, page 52; Articles of Confederation, Article 4-3-1-1781; MC 38: Title 18, Section 241, USC Title 42, Section 1983, 1985, 1986, of the unhampered use of all navigable waters and all common law highways, roadways, and byways which are used for transport either private, public, or commerce anywhere in these United 50 States of America.
Americans' "freedom to travel throughout the United States has long been recognized as a basic right under the Constitution," according to multiple cases including Williams v Fears, 179 US 270, 274; 21 S Ct 128; 45 L Ed 186 (1900); Twining v New Jersey, 211 US 78, 97; 29 S Ct 14; 53 L Ed 97 (1908), as listed in the case of United States v Guest, 383 US 745; 86 S Ct 1170; 16 L Ed 2d 239 (1968), a case involving criminally prosecuting people for obstructing the right (obstruction is a federal crime pursuant to federal criminal law 18 USC § 241).
The Supreme Court in Guest says of the "right to travel" that "Its explicit recognition as one of the federal rights protected by what is now 18 USC § 241 goes back at least as far as 1904. United States v Moore, 129 F 630, 633 [Circ Ct ND Ala, 1904]. We reaffirm it now." As we see, the Michigan Supreme Court had already recognized it in 1889, and Crandall v Nevada had alluded to the concept in 1867. The earliest known case working towards developing the concept was Smith v Turner, 48 US 283 (1849).
One of Americans' basic "Bill of Rights" rights is "the basic constitutional right to travel," upheld as long ago as in cases such as Crandall v Nevada, 73 US 35; 18 L Ed 745 (1868), Pinkerton v Verberg, 78 Mich 573; 44 NW 579 (1889), and once again reaffirmed by the U.S. Supreme Court in so many words, "right to travel," in Dunn v Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1974), and in the following cases:
"Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the l4th Amendment and by other provisions of the Constitution." - Schactman v Dulles, 96 App D.C. 287, 293.
"The right to travel is part of the Liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment." Kent v. Dulles 357 U.S. 116, 125. Reaffirmed in Zemel v. Rusk 33 US 1.
"Where activities or enjoyment, natural and often necessary to the well being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them... to repeat, we deal here with a constitutional right of the citizen..." Edwards v. California 314 US 160 (1941).
"Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure" - Chicago Motor Coach v Chicago, 169 NE 22
"The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common right which he has under the right to life, liberty, and the pursuit of happiness."- Thompson v Smith, 154 SE 579.
The right to travel is protected by the Equal Protection Clause of the 14th Amendment.
Right to travel is constitutionally protected against private as well as public encroachment." Volunteer Medical Clinic, Inc. V. Operation Rescue, 948 F2d 218; International Org. Of Masters, Etc. V. Andrews, 831, F2d 843; Zobel v. Williams, 457 US 55, 102 Sct. 2309.
"The right to make use of an automobile as a vehicle of travel along the highways of the state, is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling in some vehicle." House v. Cramer, 1 12 N. W. 3; 134 Iowa 374 (1907).
"Personal liberty, which is guaranteed to every citizen under our constitution and laws, consists of the right to locomotion, to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. . . .
"Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees." Pinkerton v Verberg, 78 Mich 573, 584; 44 NW 579, 582-583 (1889).
"...those things which are considered as inalienable rights which all citizens possess cannot be licensed since those acts are not held to be a privilege." City of Chicago v. Collins, 51 N.E. 907, 910.
"The State cannot diminish rights of the people." Hertado v. California, 110 U.S. 516
"Under our system of government upon the individuality and intelligence of the citizen, the state does not claim to control him/her, except as his/her conduct to others, leaving him/her the sole judge as to all that affects himself/herself." Mugler v. Kansas 123 U.S. 623, 659-60.
"The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice."- Davis v. Wechsler, 263 U.S. 22, 24.
"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void and ineffective for any purpose, since its unconstitutionality dates from the time of its enactment... In legal contemplation, it is as inoperative as if it had never been passed... Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no right, creates no office, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it... A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing law. Indeed insofar as a statute runs counter to the fundamental law of the land, (the Constitution JTM) it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it." Bonnett v. Vallier, 116 N.W. 885, 136 Wis. 193 (1908); NORTON v. SHELBY COUNTY, 118 U.S. 425 (1886).
Laws that interfere with "fundamental rights" are "suspect" and demand "close scrutiny" by courts. Laws cannot simply be passed on whimsy, but there must be a "compelling state interest." Any law that would "chill" exercising a right is "patently unconstitutional." It is a well established right of the people "to be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrain this movement." Shapiro v Thompson, 394 US 618 (1969).
Unconstitutional enactments are treated as though they had never existed. For example, in one state alone, here are examples: Bonnett v Vallier, 136 Wis 193, 200; 116 NW 885, 887 (1908); State ex rel Ballard v Goodland, 159 Wis 393, 395; 150 NW 488, 489 (1915); State ex rel Kleist v Donald, 164 Wis 545, 552-553; 160 NW 1067, 1070 (1917); State ex rel Martin v Zimmerman, 233 Wis 16, 21; 288 NW 454, 457 (1939); State ex rel Commissioners of Public Lands v Anderson, 56 Wis 2d 666, 672; 203 NW2d 84, 87 (1973); and Butzlaffer v Van Der Geest & Sons, Inc, Wis, 115 Wis 2d 539; 340 NW2d 742, 744-745 (1983).
2. Further, under CRS 42-2-101, it states;
Licenses for drivers required.
(1) Except as otherwise provided in part 4 of this article for commercial drivers, no person shall drive any motor vehicle upon a highway in this state unless such person has been issued a currently valid driver's or minor driver's license or an instruction permit by the department under this article.
This statute states it involves commercial drivers, NOT private citizens NOT driving for hire or driving commercial vehicles. Either this statute is void for vagueness, because NO statutory declaration is made regarding NON-commercial vehicles and NO presumption can be made with what ISN’T written, or it is clearly stating the facts... that ONLY commercial "drivers" are required to be licensed for the privilege of driving on public roads for commercial purposes, and the State allows the fraud to continue for financial gain (RICO violations-see below) and control of citizens.
3. In addition to a drivers' license NOT being required to have the right to drive a private vehicle for private business, the State of Colorado is illegally and unconstitutionally taxing its citizens for licensing and registrations of these rights. All legal taxes must fall under one of two classes of taxation... direct, according to apportionment, or indirect, according to uniformity. The tax paid for drivers' licenses and registrations must be either direct taxes, requiring apportionment amongst the population, or indirect, (excise taxes), which must be uniform across the state.
Although a drivers' license could fall under the category of excise taxation if taxation of a right was constitutionally allowed, the law states that such a tax for a right is NOT allowed and that right cannot be infringed without any violation of the rights of others (damaged party) and only through Due Process. In addition, registration fees for private property which private vehicles are, is NOT uniformly taxed and is clearly unconstitutional.
Case Law in Support: Hestand
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