BRIEF IN SUPPORT OF MOTION TO DISMISS
The charge filed on 26 June 2000 is for speed in excess of a posted speed limit.
State and local speed limits, to be valid, must meet conditions precedent specified by federal law, Title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.601 through 655.603; as adopted in NRS 484.781. This is not about “if” the city had complied with the law, what might have been its options; the question is “did” the city comply with the law. It is the position of the Defendant that the conditions precedent for the posted speed limit have not been met, wherefore the charges must be dismissed with prejudice.
This case is a matter of law. The City’s prosecution is based on “NRS § 484.361.3” and “City Ordnance 2.140” and its supporting authorities elsewhere to enforce an unlawfully posted 35 mile per hour numeric displayed on official federal regulatory traffic control devices – a violation of NRS 484.781 and its adopted Title 23 of the US Code of Federal Regulations. Therefore, the state relied on its own wrong doing as the starting place of the process.
POINTS AND AUTHORITIES
1. Federal Law as Adopted in NRS 484.781
NRS 484.781, adopted in 1969, clearly states that use of “traffic-control devices” by local authorities SHALL be in full compliance with the current standards and practices approved by the American Association of State Highway Officials and the National Joint Committee on Uniform Traffic Control Devices. These mandates are found in Title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations (CFR), Part 655.601 through 655.603.
NRS 484.781 Adoption of manual and specifications for devices for control of traffic by department of transportation.
1. The department of transportation shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this chapter for use upon highways within this state. The uniform system must correlate with and so far as possible conform to the system then current and approved by the American Association of State Highway Officials and the National Joint Committee on Uniform Traffic Control Devices.
2. All devices used by local authorities or by the department of transportation shall conform with the manual and specifications adopted by the department.
NRS 484.781 says all device use is conditional upon compliance with these binding mandates. These mandates are articulated in the National MUTCD.
Manual on Uniform Traffic Control Devices (MUTCD)
Frequently Asked Questions
What is the Manual on Uniform Traffic Control Devices (MUTCD)?
The Federal Highway Administration (FHWA) publishes the MUTCD, which contains all national design, application, and placement standards for traffic control devices. The purpose of these devices, which includes signs, signals, and pavement markings, is to promote highway safety, efficiency, and uniformity so that traffic can move efficiently on the Nation's streets and highways.
What is the legal status of the MUTCD?
The MUTCD is adopted by reference in accordance with title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.603, and is approved as the national standard for designing, applying, and planning traffic control devices.
Does this mean that all traffic control devices must comply with MUTCD standards?
Yes, all traffic control devices nationwide must conform to the MUTCD. There are no exceptions.
The FHWA publishes the MUTCD, but who decides which traffic control devices are selected and installed?
Although the FHWA adopts the standards, the individual State and local highway agencies, not the FHWA, select, install, operate, and maintain traffic control devices on all roadways (including the Interstate and the U.S. numbered systems) nationwide.
Mandatory conformity with National Traffic Control Standards has been required on all federally funded highways since 1944. In 1966, Congress passed the HIGHWAY SAFETY ACT, where they expanded ITS MANDATES TO INCLUDE ALL ROADWAYS OPEN TO THE PUBLIC. To empower this Act, CONGRESS resolutely PREEMPTED ALL STATE TRAFFIC CONTROL LAWS to facilitate the adoption of a uniform NATIONAL TRAFFIC CONTROL STANDARD. Under Title 23, this act mandated conformity with The National Manual of Uniform Traffic Control Devices (MUTCD) and its referenced nationally recognized professional engineering standards and practices – therefore, they too are federal law.
Traffic control devices are all signs, signals, markings, and devices placed on, over, or adjacent to a street or highway by authority of a public body or official having jurisdiction to regulate, warn, or guide traffic.
The need for high uniform standards was recognized long ago. The American Association of State Highway and Transportation Officials published a manual for rural highways in 1927 and the National Conference on Street and Highway Safety published a manual for urban streets in 1929. But the necessity for unification of the standards applicable to the different classes of road and street systems was obvious. To meet this need, a joint committee of the American Association of State Highway and Transportation Officials and the National Conference on Street and Highway Safety developed, and published in 1935, and original edition of this Manual of Uniform Traffic Control Devices. That committee, though changed from time to time in organization and personnel, has been in continuous existence and has contributed to periodic revisions of the Manual, including this 1988 edition. The committee’s name was formally changed to the National Committee (NC) on Uniform Traffic Control Devices.
The federally mandated shape and color of regulatory speed limit signs are of common knowledge; rectangle in shape, white reflective field, black legend and border trim. These same regulations contain conditions precedent for the numeric displayed.
MUTCD: 2b–10 Speed Limit Sign, (R2–1)
The Speed Limit sign shall display the limit established by law, or by regulation, after an engineering and traffic investigation has been made in accordance with established traffic engineering practices. The speed limits shown shall be in multiples of 5 miles per hour.
Federal NUMERIC mandate: (MUTCD 2B–10, Speed Limit Sign, designation R2-1): state the numeric value “SHALL” “be determined on the basis of an engineering and traffic investigation” and displayed in 5 mile per hour increments. This is mandatory language. The basis–in–fact finding must first determine that a need exist, and that this device is the proper remedy to address it by reducing unacceptable germane accident rates, and it has an engineering fact–based expectation of accomplishing this objective.
In regards to exercising police powers, the following 2nd paragraph clearly states “regardless of type or class or the governmental agency having jurisdiction “.
1A-2 Requirements of Traffic Control Devices
This Manual sets forth the basic principles that govern the design and usage of traffic control devices. These principles appear throughout the text in discussions of the devices to which they apply, and it is important that they be given primary consideration in the selection and application of each device.
The Manual presents traffic control device standards for all streets and highways open to public travel regardless of type or class or the governmental agency having jurisdiction. Where a device is intended for limited application only, or for a specific system, the text specifies the restrictions on its use.
There is no authority granted in Title 23 for a state to post an INVENTED NUMERIC on an official traffic control device (MUTCD 2B–10, Speed Limit Sign, R2–1). Federal regulations require that any speed limit, whether the limit is established by legislative or administrative action, be determined on the basis of an engineering investigation (study) as specified in MUTCD 2B–10. A political body can not express an engineering opinion, only a licensed engineer can after a finding-of-fact (engineering study), applying accepted national practices. This law requires uniform application of a national standard to be applied the same everywhere. Therefore only the application of recognized and accepted national practices is acceptable; and the engineer must be able to articulate what national standards, research findings or practices were used in the findings.
This was adopted in NRS 484.781 and any exercise of police powers by any political entity invoking the authority granted under federal law, not in full compliance with this law’s conditions precedent is unlawful on its face. Because, 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; therefore, the posted limits are unlawfully posted.
2. AN INVENTED NUMERIC in this context of science represents in law the phrase “Arbitrary and Capricious”.
The NUMERIC posted on an official traffic device R2–1 Speed Limit sign, under federal law is an engineering determined regulatory value that speeds in excess of represents an unacceptable hazard to others. A well established matter of science, where the safe for conditions value is determined by site specific Basis–in–Fact finding, “after an engineering and traffic investigation has been made in accordance with established traffic engineering practices”. Without such a finding–of–fact for the particular section of highway taking into account all the conditions present, the exercise of police powers enforcing a regulatory speed limit with an invented numeric value has no factual foundation.
ARBITRARY: 1, depending on individual discretion (as of a judge) and not fixed by standards, rules, or law; not restrained or limited in the exercise of power; marked by or resulting from the unrestrained exercise of power. 2 a, based on preference, bias, prejudice, or convenience rather than on reason or fact, an arbitrary standard; 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; lacking a rational basis; likely to change suddenly. 2, not supported by the weight of evidence or established rules of law.
The 35 MPH numeric was posted contrary to law, and is an “arbitrary and capricious” established number as is the prosecution of the defendant for violating such a number.
3. Attached exhibit#1 which was also sent to the District Attorney by the City Traffic Engineer (noted at bottom of correspondence), from the Henderson Public Works Department that clearly affirms that 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. The City of Henderson has not, to my knowledge, conducted a speed limit study on this section of highway.”
NRS 484.781 adopted Title 23, the UNIFORM NATIONAL STANDARD FOR TRAFFIC CONTROL. This means a uniform national design, placement and application on all roadways in the Nation. In accord with Interstate Commerce and Title 23 provisions, uniformity within a state is not uniformity. Uniformity in application can only be achieved when like conditions in all states are treated equally, where the procedures and practices applied are the same – in compliance with the conditions precedent in the National MUTCD. Only those practices as articulated in the National MUTCD can be in conformance. The National MUTCD requires a speed study to determine a sanctioned numeric for a speed limit.
The question is not “if” the law had been followed they could have… Henderson’s justifications are not in congruity with required national standard conditions precedent and recognized accepted national practices. The question is “did” they follow the law and the answer is clearly no. Therefore the posted speed limit on its face, as a matter of law, was posted unlawfully under controlling state and federal law.
4. Under “the color of federal law” the city is enforcing a traffic control law that is not in compliance with its governing National standard, a violation of due process and the equal protection clause. 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.
5. Government (prosecutors) must set an example of enforcing and obeying the laws. Case law to the same effect, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957) and Glus v Eastern District Terminal, 359 US 231, 232; 79 S Ct 760, 762; 3 L Ed 2d 770, 772 (1959), which make clear that a plaintiff cannot rely on its own wrongdoing at the starting point of a process. This is a violation of due process.
The city in this case is relying on its own wrongdoing as the starting place of the process. An Arbitrary and Capricious posted limit resulting in denial of Equal Protection and Due Process, Interstate Commerce protection and in violation of title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.603; therefore the Supremacy Clauses of the Constitution. Contrary to mandatory requirements adopted in NRS 484.781.
WHEREFORE for all the foregoing reasons, and each of them individually, defendant moves that the Motion to Dismiss be granted with prejudice.
Michael L. Mead, Defendant
Attorney in pro per, Date __________
City of Henderson’s Opposition to Motion to Dismiss.
Rebuttal to City of Henderson’s Opposition to Motion to Dismiss.
return to http://www.hwysafety.com