Home 1
1
2 IN THE CIRCUIT COURT
FOR THE
CITY OF
3
4
5 -----------------------------------
|
6 DAVID ALAN CARMICHAEL |
|
7 |
versus |Case Number:
8 |760CL080002067-00
|
9 THE
TIM KAINE, GOVERNOR, |
10 PIERCE R. HOMER, |
SECRETARY OF TRANSPORTATION, |
11 D.B. SMIT, DMV COMMISSIONER, |
ROBERT F. MCDONNELL, ATTORNEY |
12 GENERAL, |
LINDA CURTIS, COMMONWEALTH |
13 ATTORNEY |
|
14 -----------------------------------
15
16
17
18
19
20 Complete transcript of the testimony and other
21 incidents, when heard before the Honorable Margaret
22 P. Spencer, Judge.
23
24 COOK & WILEY, INC.
Registered Professional Reporters
25
COOK & WILEY, INC.
2
1 APPEARANCES:
2
3 David Alan Carmichael, pro se
4
(757) 850-1245
5
6
7 C. Nicole Gilliam, Esquire
Assistant Attorney General
8 Office of the Attorney General
9
(804) 786-8198
10 Counsel for the Defendants
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COOK & WILEY, INC.
3
1 THE COURT: This is the matter of David
2 Alan Carmichael versus
3 Could the attorneys or parties present
4 please stand and identify yourselves for the
5 court reporter.
6 MR. CARMICHAEL: I'm David Alan Carmichael,
7 plaintiff.
8 THE COURT: Good afternoon.
9 MR. J. CARMICHAEL: I'm Jesse Carmichael.
10 THE COURT: Good afternoon.
11 MS. GILLIAM: Nicole Gilliam, the Office of
12 the Attorney General.
13 THE COURT: Good afternoon.
14 We are here on the plaintiff's motion for a
15 temporary injunction. The court is ready for any
16 evidence or argument from the plaintiff.
17 MR. CARMICHAEL: Judge Spencer, by the way,
18 something that just occurred to me when I stood
19 here. This is religious freedom week. I just
20 noticed that it's an adjacent statute to the
21 statute we're relying on. I thought it was
22 worthy to put on the record that we could
23 celebrate that.
24 I've got evidence here that I found in the
25 law. I've got three copies of each and I have
COOK & WILEY, INC.
4
1 cover sheets and I was going to write sequential
2 numbers. I've submitted items that have been
3 numbered up to 12 up to this point. So with your
4 permission, I would like to take them from Number
5 13 and work myself forward as you accept
6 something as we go.
7 THE COURT: That's fine.
8 MR. CARMICHAEL: The defendant made a
9 statement in their brief and it said -- the
10 defendant said that statute, Code of Virginia
11 2.2-511, prohibited the attorney general from
12 prosecuting a driver's license, enforcing that
13 statute. I actually have copies that I took from
14 the Regent Law Library. I have copies of 511.
15 It actually shows the opposite, that there are
16 three exceptions to the prohibition and one of
17 those exceptions is Item Number 3 in the first
18 paragraph here and I've got copies.
19 If the judge will look in the first part.
20 It says, Unless specifically requested by the
21 governor to do so, the attorney general shall
22 have no authority --
23 THE COURT: I'm sorry. Just tell me again
24 where you're reading from.
25 MR. CARMICHAEL: In fact, can we swap? Mine
COOK & WILEY, INC.
5
1 has highlight.
2 THE COURT: I see now, 2.2-511, criminal
3 cases, Number A.
4 MR. CARMICHAEL: Yes. Unless specifically
5 requested by the governor to do so, the attorney
6 general shall have no authority to institute or
7 conduct criminal prosecutions in the circuit
8 courts of the Commonwealth except in cases
9 involving, and it says, One, and it has, Number
10 2. If you go on to lower case three, lower case
11 "I", it says, Violation of laws relating to motor
12 vehicles and their operation. So that indicates
13 to me that the attorney general does have
14 authority to prosecute criminal cases and he'd be
15 an appropriate person to name for the purpose of
16 injunction, contrary to what was in the
17 defendant's brief.
18 Is this acceptable?
19 THE COURT: Yes. I'll admit this as
20 Plaintiff's Exhibit 1.
21 MR. CARMICHAEL: Plaintiff's 1?
22 THE COURT: Yes.
23 MR. CARMICHAEL: This next item goes on to
24 the point of the driver's license statute. The
25 defendant has said that there are mandates, that
COOK & WILEY, INC.
6
1 there's particular statutes that relate to the
2 item that we're talking about, driving, a
3 driver's license, and denying drivers' licenses,
4 that there are mandates.
5 I've got evidence in law there that I'd like
6 to put to the court that would show just the
7 opposite.
8 This that I propose for an exhibit, if we
9 turn to the first item after the cover sheet. It
10 says, Driving without license prohibited and
11 penalties. No person -- it says, No person
12 except those expressly exempted in 46.3-303
13 through 46.2-308. We could go on and read all of
14 these, but just for time's sake, it shows that
15 there's exemptions. There's not an absolute
16 mandate that nobody can be on the streets when
17 using a automobile, motor vehicle of some type,
18 without a driver's license. There are
19 exceptions. It says, No person except those
20 expressly exempted in these items shall drive a
21 motor vehicle without a criminal penalty.
22 Now, if you'll go to the next page, it gives
23 an example of that first item listed, 303. It
24 says, Licenses not required for operating road
25 roller or farm tractor. No person shall be
COOK & WILEY, INC.
7
1 required to obtain a driver's license to obtain a
2 -- they just describe those things, road roller,
3 machinery, under the supervision of the
4 Department of Transportation. It goes on to say
5 -- it lists a bunch of vehicles. Then it says,
6 Or vehicle defined in 46.2-663 through 674. So
7 it's going to list several instances where
8 somebody can use a large, fast, slow, there's all
9 kinds of crazy descriptions here.
10 If you turn to the next page and look at
11 304, that goes on and talks about farm tractors
12 by people who have been convicted of an offense
13 of driving under intoxication. But if you
14 continue on to the next page, 663, and then it
15 goes on to 664. I've got them in sequential
16 numbers all the way to 674. It gives instances
17 where people can drive 30 miles one direction.
18 They might be a commercial fisherman, but no more
19 than 50 if they're going drive from one market to
20 the next. There's instances where somebody can
21 drive 20 miles, instances where somebody can
22 drive five miles. There's instances where
23 somebody can drive a vehicle to get repaired with
24 no limit listed in the statute.
25 So in the statutes under 300, it lists
COOK & WILEY, INC.
8
1 exemptions. I'm not saying that I fit under
2 those exemptions. What I'm saying is it is
3 conceivable to move a motor vehicle on the roads
4 of
5 exemptions. There are exceptions to the
6 requirement.
7 And I've driven a backhoe. This is
8 testimony. I affirm to what I say to be true.
9 I've driven a backhoe and they're harder to drive
10 safely on a street because when you turn them,
11 they turn at the center. So when I turn a little
12 bit, I'm getting two turns out of my wheels.
13 It's kind of a violent drive.
14 Can I have this?
15 THE COURT: Yes. This will be admitted as
16 Plaintiff's Exhibit 2.
17 MR. CARMICHAEL: Thank you.
18 The third item I would like to propose or
19 present for evidence is Virginia Code 46.2-300.
20 The defendant had said in our last oral argument
21 that we had, the last hearing, and had said in
22 her brief that 46.2-320 is actually the authority
23 that the department had to deny the license
24 application that I and those in my family had
25 presented.
COOK & WILEY, INC.
9
1 I've got some other exhibits I realize that
2 aren't automatically put into the court, but I
3 submitted them to the clerk. They've already
4 been submitted and I'll have to refer to them.
5 But at this point 46.2-320 says, Other grounds
6 for refusal or suspension. This is really the
7 only place that we can see the authority to deny
8 the applications that we put forth.
9 It says, The department may refuse -- I'm
10 presuming the DMV -- may refuse to grant an
11 application for a driver's license in any of the
12 circumstances set forth in 46.2-608. We're going
13 to have that. That's actually included here.
14 One of the things the defendant said was
15 that this statute absolutely makes it so there
16 can be no religious accommodation. It was what
17 they proposed in their motion to reconsider, that
18 they listed this specifically as the authority
19 that made it so that it was impossible for the
20 government to grant an exception.
21 We can look at the word. It says the
22 department may refuse to grant an application.
23 It does not say must refuse to grant. It gives
24 them an option. Whether they really have an
25 option to deny a religious accommodation request
COOK & WILEY, INC.
10
1 that's bona fide and in good faith and has other
2 things to consider, well, that may be another
3 matter.
4 If we can look at the next page. That's the
5 reference, 46.2-608. It has to do with applying
6 for registrations and things like that and it
7 lists things that would give the department
8 reasons to consider denying an application. And
9 it says, They may deny the application. Here's
10 number two, Neglected to furnish the department
11 with information required on the appropriate
12 official form or other thing or if they thought I
13 was lying per se.
14 Let's look at Number 6. There is reason to
15 believe the application or accompanying documents
16 have been altered or contain any false statement.
17 Those are things that would give them the
18 authority to consider denying an application.
19 It's not a mandate.
20 With your permission, we would --
21 THE COURT: All right. This would be
22 admitted as Plaintiff's Exhibit 3.
23 MR. CARMICHAEL: Thank you.
24 The next item is, if we turn the cover
25 sheet, is 46.2-323 of the Virginia Code. This is
COOK & WILEY, INC.
11
1 the application instructions for the driver's
2 license. Throughout all of our communications,
3 as you're going to see in the record, this was
4 really the thing that was cited by different
5 people to say why their religious accommodation
6 could not be accepted. Nobody prior to Ms.
7 Gilliam that I can remember had ever cited the
8 authority for denial, which was 46.2-320.
9 But let's look at paragraph B. Paragraph B
10 says, Every application shall state the full
11 legal name, year, month, date of birth, Social
12 Security number, sex, and residence address of
13 the applicant. Then it goes on to say other
14 things. This has been stated as a mandate. I
15 propose that it's merely directory. There are
16 times that I found in all this stack of law that
17 there's a word "shall" use(d). And it's really
18 directory, not really mandatory.
19 We look down here at that section of B. If
20 you go all the way from B and then you see the
21 next major section is C. In between there's
22 these other small paragraphs that are not
23 numbered. At the very bottom one just before
24 paragraph C, it says, The commissioner may on a
25 case by case basis waive any provision of such
COOK & WILEY, INC.
12
1 regulation for good cause shown.
2 In the record we can see that I put forth
3 that waiver should apply to all of paragraph B
4 because there's nothing expressly showing in this
5 statute where it doesn't. Well, they've chosen
6 to interpret that as only applying to the two
7 small paragraphs up above it relating to
8 residency or actually maybe the three small
9 paragraphs above that waiver provision relating
10 to residency.
11 Well, what I just noticed even this week as
12 I was going through this, there's paragraph B and
13 then there's a small paragraph under it and then
14 another one that starts the words, If the
15 applicant either fails or refuses to sign the
16 certification statement for residency, fails to
17 follow the process determined by the commissioner
18 for proving residency, the department shall not
19 issue the applicant a driver's license. There's
20 the only mandate in this section. In fact, this
21 whole 323 section, the only mandate of a (“)shall
22 not issue a license(“) is this part with regard to
23 residency.
24 So I would say that leans toward a mandate
25 where other things were merely administrative.
COOK & WILEY, INC.
13
1 Who knows what reasons something may not be
2 given, whether it be technical or religious or
3 whatever. But even with that "shall", even with
4 that directive, Shall not issue the license, the
5 commissioner may on a case-by-case basis waive
6 any provision of such regulations for good cause
7 shown. So the department cannot issue the
8 license unless conditions -- the only directive
9 -- but even the commissioner may make a waiver
10 for good cause shown. It just seems to me in
11 reasonableness, that with all the evidence that's
12 been put to the defendant, that denying a license
13 was not reasonable and was, I think, an
14 inappropriate application of the statute.
15 I'd like to submit this as evidence.
16 THE COURT: That will be admitted as
17 Plaintiff's Exhibit 4.
18 MR. CARMICHAEL: Thank you.
19 THE COURT: The court does not have a copy
20 of 46.2-323.
21 MR. CARMICHAEL: I'm sorry.
22 (Proffered.)
23 THE COURT: Thank you.
24 MR. CARMICHAEL: On another matter, on the
25 brief before for this hearing, the defendant
COOK & WILEY, INC.
14
1 claimed a federal regulation as being a mandate.
2 Again, that would in essence trump religious
3 freedom and other laws that would protect our
4 claim here in Virginia. I had mentioned this in
5 our last hearing, giving some background to this.
6 It was more of an enigma that we were facing in
7 American society. It wasn't necessarily claiming
8 it as an authority.
9 In this case what I have is a copy of
10 Section 42 USC 666 out of the United States Code
11 annotated. I'd like to propose this for
12 evidence.
13 As I said, in the defendant's brief they
14 mentioned that this was a mandate, a federal
15 mandate. I found evidence in law that would
16 refute that. As we turn over the first cover
17 sheet, you'll see the copy of the front page of
18 the book that I reference and then we go to the
19 next page. You'll see the statue Section 666,
20 Requirement of statutory prescribed procedures to
21 improve effectiveness of child support
22 enforcement.
23 I just want to mention that I've got an
24 affidavit here that I don't have a cover sheet
25 for and it's going to mention the status that I'm
COOK & WILEY, INC.
15
1 not a deadbeat dad as classified here.
2 But we're going to go onto the next page.
3 What we're looking for is paragraph A. It will
4 be lowercase A. See it right there. It says,
5 Types of procedures required right under that
6 bullet part 666. But we're going to find
7 paragraph 13. This first page goes to paragraph
8 5. The next page will take us paragraphs 6, 7,
9 and 8. Then the next page, pages 322 and 323 of
10 that code book, we're going to find it here.
11 Okay.
12 On the bottom of page 322, it has paragraph
13 13, Recording the Social Security numbers of
14 certain family matters. Procedures requiring the
15 Social Security number of any applicant for a
16 professional license, driver's license,
17 occupational license, recreational license,
18 marriage license be recorded on the application.
19 It talks about people subject to divorce decrees
20 and other things like that.
21 One thing is we don't see what the certain
22 family matter is. We can infer it to have
23 something to do with divorce issues, child
24 custody issues, things like that.
25 There's something that I can see that
COOK & WILEY, INC.
16
1 government is complying with here. It says, For
2 purposes of subparagraph A, the state allows use
3 of a number other than the Social Security number
4 used on the face of the document while the Social
5 Security number is kept on file at the agency.
6 The state shall so advise the applicant. So the
7 only directive is to actually tell the person
8 that they've got something in the background on
9 the record or if that's a procedure.
10 Now, we don't know what the certain family
11 matter is. It's not very well defined, but the
12 defendant here has said that this trumps
13 religious freedom. This is a mandate. This is
14 something that the Virginia Constitution can't
15 protect or even the U.S. Constitution can't
16 protect.
17 But I say in the same statute there is a
18 provision for a waiver. If we'll turn to page --
19 I've got to find the page now. It's going to be
20 paragraph D instead of paragraph A. So I'm
21 turning one, two, three, three pages, to the
22 fourth page. It would be page 329 in the United
23 States Code, page 329. And there's paragraph D.
24 It says, Exemptions of states. If a state
25 demonstrates to the satisfaction of the secretary
COOK & WILEY, INC.
17
1 through etc., etc., etc., it says, The secretary
2 may exempt the state. So there's a secretary, I
3 presume of Health and Human Services, exempting
4 states. There's a provision for a waiver.
5 So I put forth to the court that it cannot
6 be a mandate, absolute mandate that tracks (should be trumps?)
7 religious freedom when there are waiver
8 provisions available. I mean, they could lend
9 some discretion to somebody, but the person with
10 discretion, I don't think they're immune from
11 having to observe the laws of Virginia or the
12 laws of the United States.
13 If I could have this put into the evidence.
14 THE COURT: All right. This will be
15 admitted as Plaintiff's Exhibit 5.
16 MR. CARMICHAEL: One of the things that I
17 noticed with that wavier provision in our
18 complaint and some of the facts we put forth to
19 the court, that I and Jesse and my daughter
20 Bethany obtained a religious accommodation to
21 obtain a passport. What I have here is I have a
22 copy that I found of U.S. Code. I got this off
23 the Cornell University website. I got that off
24 the website myself. I also have, I will have a
25 copy of a passport that is probably in my stack
COOK & WILEY, INC.
18
1 back there.
2 But what I'm going to do is I'm going to
3 show something here, if I can submit this to the
4 court. I don't know if Jesse is going to be able
5 to get it. I thought I had the passport
6 application here in my stack, but I don't. On
7 the passport application I wanted to present to
8 the court, and that's something I can file to the
9 court, it's got kind of what I commonly refer to
10 as draconian rules, Thou shall not get a passport
11 without a Social Security number kind of
12 language. And I'll have to --
13 MS. GILLIAM: Your Honor, I would object to
14 the admission of this exhibit into evidence. It
15 relates to passports and that's not what we're
16 dealing with today. It's irrelevant to the
17 issue.
18 MR. CARMICHAEL: My counter to that, if you
19 do open up 6039E, it shows a requirement where if
20 we look to paragraph E it says there's an
21 exemption. The secretary may by regulation
22 exempt any class of individuals from the
23 requirements of this section. I could find no
24 express exemption that the secretary's given, but
25 in practice that the U.S. -- I have more evidence
COOK & WILEY, INC.
19
1 to show that even the U.S. Passport Agency is
2 applying religious accommodations, even though
3 the secretary hasn't expressly exempted
4 something. The law itself is providing an
5 accommodation to these mandatory things.
6 Paragraph C says there would be a $500 fine for
7 not providing a Social Security number, unless
8 there's good cause shown or something like that.
9 THE COURT: How is that relevant to --
10 MR. CARMICHAEL: It's comparison to what the
11 color of 666, paragraph A13, compared to
12 paragraph D is provision of an exemption, and a
13 real life experience that we've had. And we have
14 more evidence that will come forth.
15 There's probably going to be another
16 opportunity to present more evidence to show that
17 there's a mandate here as well. I have the form.
18 It's actually in the stack back there. The form
19 actually shows it as a mandate, uses mandatory
20 languages, and that there is no qualification.
21 It cites the regulation. It turns out even the
22 regulation, there is a waiver, even though the
23 language of the form gives indications it's a
24 mandate that can't be gotten by. Here we see the
25 mandate and we see an exemption provision, even
COOK & WILEY, INC.
20
1 though I've found no express exemption.
2 Nevertheless, the Department of State -- I
3 have evidence to show that. We don't want to
4 pile it all up here. I don't have all of that
5 evidence for today, but maybe I can save this for
6 later.
7 THE COURT: All right. Let's save it for
8 later because the objection now is that what the
9 Secretary of State does with passports, which is
10 a federal issue, is not relevant to what the
11 Commonwealth of Virginia, a state, does with a
12 driver's license. But if you'll tie it all up
13 later, let's just save this one, preserve it.
14 MR. CARMICHAEL: Thank you.
15 The next item, if what Ms. Gilliam says is
16 true, I have an item here that I'd like to
17 present. It would be federal regulations in the
18 same Health and Human Services Code that mitigate
19 666 under federal rule. Even if the government
20 has some statute, which I have not seen, that
21 says (“)everybody in Virginia with every department
22 will impose the 666 requirement, look through
23 there, read through there, apply whatever applies
24 in your area, everybody just go abide by that
25 federal code.(“) I haven't seen that statute by the
COOK & WILEY, INC.
21
1 Virginia legislature.
2 But if they did, then that same rule would
3 be mitigated by the federal rules that run the
4 federal program. If you'll look here in this
5 exhibit, it's 2000 BB on page 163 of the United
6 States Code search and it's congressional
7 findings and declaration purpose about the
8 Religious Freedom Restoration Act for the federal
9 government, federal rules, federal agencies.
10 MS. GILLIAM: Your Honor, I would object to
11 the admission of this exhibit into evidence. The
12 federal RFRA is not applicable to these
13 proceedings. Once again, I would object on the
14 grounds of irrelevance.
15 MR. CARMICHAEL: I'm going to counter that.
16 It depends on what the court finds with what
17 they've argued about 666 because that's very
18 important, even for a declaratory judgement.
19 I've got things to show that even 666 has no
20 authority in Virginia.
21 But if their claim that 666 is relevant, 42
22 USC of the Federal Code and 666, then that
23 paragraph, if you keep reading in those volumes
24 all the way down to section 2000, then 2000
25 mitigates 666 just like 666 doesn't stand alone.
COOK & WILEY, INC.
22
1 It's based on 42 USC 205 and 42 USC 405, the
2 Social Security Act. That's what drives 666.
3 That's what it's connected to, federal
4 regulation, federal law, federal programs,
5 federal participants.
6 Well, 2000 is in the Health and Human
7 Services Code. It has to logically relate to the
8 administration of federal programs and federal
9 practices and federal mandates.
10 THE COURT: Let's defer ruling on this one
11 too. We can tie it up later.
12 MR. CARMICHAEL: One of the things
13 that Ms. Gilliam said, and I'm going to go ahead
14 and hand this next item. This next item comes
15 out of the Kentucky Revised Statutes. Why this
16 would be relevant is 666 is supposedly applied to
17 the states. We'd have to look at the language.
18 I'd have to see more evidence besides just the
19 declaring of 666 to see whether 666 really
20 applies to the states. I would presume that
21 every state in the union, I haven't heard of any
22 that are not participating in the Social Security
23 program who don't have deadbeat dad issues.
24 I would think that Kentucky would have to be
25 under a mandate as well, but this is the Kentucky
COOK & WILEY, INC.
23
1 driver's license application. So it gives me an
2 example of other states. If we look here on --
3 MS. GILLIAM: Objection, Your Honor. It's
4 irrelevant.
5 THE COURT: Response to the objection.
6 MR. CARMICHAEL: As I was saying, if 666 is
7 applying to the states and it's truly a
8 preemption argument, then it would also pre-empt
9 every state, several states in the union. I have
10 evidence that there are other states that are
11 applying religious accommodations and are not
12 under any penalty or any prohibition for
13 suffering any restriction of allowing the same
14 religious accommodation that I'm asking that she
15 is essentially inferring that 666 preempts.
16 THE COURT: I will sustain the objection to
17 this exhibit. The presumption that what another
18 state does is relevant to Virginia is not
19 admissible as a matter of law. The other state
20 may be violating the law. Let's stick with
21 Virginia and the federal laws. We can't look at
22 the other states as a mater of law.
23 MR. CARMICHAEL: We're going to look at
24 Virginia statute. I'm going to submit
25 Administrative Law 2.2-616, which indicates
COOK & WILEY, INC.
24
1 policy of Virginia is declared by the General
2 Assembly. If we open this page, it's Virginia
3 Code 2.2-616, Short title of this chapter shall
4 be known and may be cited as the implementation
5 of the Federal Mandates Act. This whole section
6 here in enacting this chapter, The General
7 Assembly employs its legislative authority to
8 establish that the people of Virginia, acting
9 through their elected officials in Virginia
10 government, has a responsibility and authority to
11 establish policy in and for Virginia pertaining
12 to federal programs mandated in federal statutes.
13 The policy remains. As far as the General
14 Assembly is concerned, you cannot relegate it to
15 an arbitrary decision of the Secretary of Health
16 and Human Services in the federal program, the
17 U.S. Secretary of Health and Human Services. The
18 General Assembly has expressly said that that
19 authority to make decisions with regard to the
20 rights of its citizens belongs in Virginia.
21 I go on to paragraph B. The intent of the
22 General Assembly is to ensure the privacy of
23 Commonwealth's legal and political authority,
24 implement in and for Virginia the policy mandated
25 by federal statutes and to vigorously challenge,
COOK & WILEY, INC.
25
1 vigorously challenge and scrutinize the extent
2 and scope of authority asserted by federal
3 executive branch agencies when federal agency
4 actions and interpretations are inconsistent with
5 Virginia policy and exceed the lawful authority
6 of the federal government or are not required by
7 federal law.
8 I encourage the court to continue reading
9 that so we don't spend too much time on this here
10 with the limited -- it's kind of late in the day.
11 This is important. This is very important.
12 If we go on to paragraph D where it says -- or
13 paragraph C2, Any implementation of federal
14 policies in and for Virginia by federal executive
15 branch agencies that is contrary to fundamental
16 notions of federalism and self-determination must
17 be identified and countered.
18 In fact, I say this implementation of 666,
19 even the suggestion, would go in violation of the
20 Virginia Constitution, Article 1, 2, 7, 11, not
21 necessarily 11, but 16. It goes against Virginia
22 legislature's policy.
23 If I could submit this as evidence.
24 THE COURT: This would be Plaintiff's
25 Exhibit 9.
COOK & WILEY, INC.
26
1 MR. CARMICHAEL: What I'm presenting here is
2 evidence of law, Virginia law, again, the policy
3 of Virginia. In here I have essentially the
4 series that matters on Code of Virginia 57-1,
5 which is the Act for Religious Freedom recited.
6 It cites, yes, it does. It's Religious Freedom
7 Week. I can't help but get excited by it,
8 Whereas, Almighty God hath created the mind free,
9 that all attempts to influence it by temporal
10 punishment, or burthens, or incapacitations, tend
11 only to beget habits of hypocrisy and meanness,
12 and are a departure from the plan of the Holy
13 Author of religion.
14 And then I'm not going to read the whole
15 thing, but it goes on to say, and I will
16 summarize, that even the Christian religion that
17 is affiliated with the folks that started this
18 country had a perception that you do not use the
19 power of the sword to influence somebody to
20 change that which they do, which they owe as
21 religion to Almighty God, even under the
22 definition of religion that we can see in
23 Virginia Constitution, Article 1 Section 16.
24 If you read through this whole section, what
25 you're going to see is, you know, prescribing any
COOK & WILEY, INC.
27
1 citizen unworthy of public confidence, laying
2 incapacities. Even though Virginia Constitution,
3 Article 1 Section 16, really talks about the
4 imposition of burdens and basically treating
5 people with less rights, with less opportunities,
6 as less of a person than the common man.
7 I'm going to go to, if we can, go to the
8 next page, 57-2. It shows you how strong the
9 Virginia General Assembly's policy is on this.
10 The General Assembly doth now again declare that
11 the rights asserted in the said act are of the
12 natural rights of mankind. As I've done the
13 homework, I have read Sir William Blackstone
14 about what this even means. It referred to
15 divine revelation, divine rights, and then
16 natural rights, and then the fundamental rights
17 of the Constitution. So they believed that this
18 was stronger than the Constitution, that it was
19 inalienable rights that should not be bargained.
20 If we could go to next thing. I had to do
21 it. It's Religious Freedom Week and tomorrow is
22 Religious Freedom day, 57-2.01. Here we are, so
23 it's relevant for today.
24 The very last thing there is 57-2.02. In
25 this it says -- it's kind of exciting. It
COOK & WILEY, INC.
28
1 defines what (“)demonstrates(“) means. What the burden
2 of the government is to demonstrate when they
3 declare compelling interest. It can't really be
4 a claim and, as I understand, not the
5 preponderance of the evidence. But it says,
6 Going forward with evidence and persuasion under
7 the standard of clear and convincing evidence.
8 It talks about the exercise of religion and
9 references the prior statute that I have here
10 before us. It talks about government entity. It
11 talks about substantial burden and it commands
12 that no entity shall substantially burden a
13 person's free exercise of religion, even if the
14 burden results from a rule of general
15 applicability, unless it demonstrates the
16 application burden to the person, not in general,
17 but to the facts and the situation of the person
18 is essential to furthering a compelling
19 governmental interest.
20 Also, even if they prove that through that
21 strict rule of proof, they have to prove that
22 there's no less restrictive means to accomplish
23 the purpose. That's very important. And then,
24 of course, it gives opportunities to have some
25 relief.
COOK & WILEY, INC.
29
1 If we look in paragraph D, A person whose
2 religious exercise has been burdened by
3 government in violation of this section may
4 assert that violation as a claim or defense. And
5 I'm not sure how we're standing on that. May
6 obtain declaratory and injunctive relief from the
7 circuit court.
8 So even if 8.01-620, 624, even if they are
9 not right on point, this gives this court an
10 opportunity to intervene on our behalf. I'd like
11 to submit this.
12 THE COURT: This will be admitted as
13 Plaintiff's Exhibit 10.
14 MR. CARMICHAEL: I do have another thing. I
15 found evidence of law. I printed this off of a
16 Virginia website, Virginia government website.
17 It didn't have the website citings on the bottom
18 and I emphasized things. This is a copy of
19 Article 1, the Bill of Rights, and it has
20 sections that I think are relevant to what we're
21 dealing with here, both, so it stands out as
22 we're reviewing this. I believe this is
23 important evidence of law that I would like to
24 submit.
25 THE COURT: This will be admitted as
COOK & WILEY, INC.
30
1 Plaintiff's Exhibit 11.
2 MR. CARMICHAEL: The court got the version
3 that's got the staples all the way through. I
4 would like to submit this. Now, this is a U.S.
5 Supreme Court ruling, Prince versus United
6 States. It's relevant because it talks about the
7 authority of the federal regulatory programs to
8 intrude upon the laws of the states.
9 I would say based on this finding of this
10 U.S. Supreme Court ruling that because 666 of the
11 Federal Welfare Code is directed toward the
12 states and not toward a person, toward a person
13 who is under the jurisdiction of that U.S. law,
14 that it violates the separation of powers in the
15 U.S. Constitution.
16 This is a wonderful, wonderful treatise on
17 the subject. And it references back to New York
18 versus United States, that actually goes into a
19 federal regulatory program that deals with
20 nuclear waste and things like that. It's
21 actually federal regulation and things like that.
22 It's New York versus United States. I have a
23 copy of that too.
24 What I would like to do is, I'm going to
25 find a page here where the Supreme Court has
COOK & WILEY, INC.
31
1 really summed up the point that I would like to
2 make. I'm going to try to go -- I went to about
3 the last page.
4 If you'll look at Prince versus United
5 States, page 924, and you'll see a large upper
6 case E with brackets and it says the word "even."
7 It says, Even where congress has the authority
8 under the Constitution to pass laws requiring or
9 prohibiting certain acts, it lacks the power
10 directly to compel. That's an important word,
11 compel. Directly compel the states to require or
12 prohibit those acts. That's strong language.
13 It cannot be a compelling interest of
14 government when the federal government cannot
15 compel Virginia to behave a certain way. I'm
16 going to probably try to find another cite. If
17 you'll look on the next page and it will be page
18 926. There's a paragraph that begins, When we
19 were last confronted, and then you go down. If
20 you go down that left column there. It says,
21 Amendment Act of 1985, which required states
22 either to enact legislation provided for disposal
23 of radio active waste generated within their
24 borders.
25 I'll stop here. 666 is directing states to
COOK & WILEY, INC.
32
1 essentially enact legislation (going on to quote the case.”)or to take title to
2 and possession of the ways effectively requiring
3 the states either to legislate pursuant to
4 congress' directions or to implement an
5 administrative solution. We concluded that
6 congress could constitutionally require the
7 states to do neither. The federal government, we
8 held, may not compel the states to enact or
9 administer a federal regulatory program.(“)
10 It's a superb read. It includes the dissent
11 and arguments among the Supreme Court members.
12 I'd like to submit this as evidence.
13 THE COURT: This will be admitted as
14 Plaintiff's Exhibit 12.
15 MR. CARMICHAEL: I won't make too much
16 commentary on this next thing. This is a copy of
17 New York versus United States, which is more to
18 the point of the regulation-type nature of 42 USC
19 666.
20 MS. GILLIAM: Your Honor, I object to this
21 topic, this attack of a federal statute 42 USC
22 Section 666. This is not the appropriate forum
23 to challenge a federal statute. Should
24 Mr. Carmichael proceed with the challenge to this
25 federal statute, he could file a claim in federal
COOK & WILEY, INC.
33
1 court. Today is not the appropriate time nor is
2 the court the appropriate venue.
3 MR. CARMICHAEL: And I would say it's based
4 on the term compelling. One of the things that
5 the court, the executive officer, everybody who
6 gives an oath to abide by the U.S. Constitution
7 and the Virginia Constitution, since this has
8 been put to us by the defendant that 666 would
9 compel Virginia to not allow our religious
10 accommodation request.
11 Well, they brought the argument forward, but
12 I would say the assertion violates both the
13 Virginia Constitution and the U.S. Constitution.
14 And we all have an obligation to uphold those.
15 So what I have to do, I have the burden to show
16 evidence of law. I'm starting to understand this
17 stuff in this way. So I'm showing evidence of
18 law to influence our decision and everybody's
19 oath. And I gave an oath while I was in the
20 military to support and defend the Constitution
21 of the United States. I'm still under the oath,
22 even though -- well, they are still paying me.
23 THE COURT: This is just a case. Let's just
24 move on. This is a case --
25 MR. CARMICHAEL: It's referenced by Prince.
COOK & WILEY, INC.
34
1 THE COURT: Cited?
2 MR. CARMICHAEL: Yes.
3 THE COURT: That's Plaintiff's Exhibit 13.
4 It's a case. It may or may not have probative
5 value, but it's a case being cited by a party in
6 litigation. Is there another one?
7 MR. CARMICHAEL: One of the things that I've
8 been putting forth to the court is an argument
9 that was brought with what the defendant made in
10 their motion for reconsideration. This is what
11 I'm doing is dealing with the merits of the case.
12 In their motion for reconsideration, they
13 cited cases that are happening all over the
14 country. They are citing things that are
15 happening under states. I would say that the
16 objection that they raised today about
17 considering those things as relevant, I'd have
18 the same objection on the same basis.
19 Something they did is they showed how
20 different courts, lower courts, state courts,
21 some federal appeals courts are dealing with this
22 SSN issue. Whether they're using the compelling
23 interest least restrictive means test in these
24 SSN cases, she said that nearly every case is
25 losing.
COOK & WILEY, INC.
35
1 I will tell you from my experience I know
2 some of those people that have lost their cases.
3 It was very unusual that our case in the federal
4 court won. That's why it was hard to get a
5 lawyer.
6 But what happens is if we really press this,
7 I believe we'll prevail. I have an example of a
8 U.S. Supreme Court case that turned the tide on a
9 SSN issue back in 1986. Even with them denying
10 the religious accommodation to the person who
11 requested it here, under the situation, the facts
12 and circumstances as the U.S. Supreme Court was
13 evaluating this type of issue, they would have,
14 and I will be able to show, that they would have
15 agreed with my religious accommodation and
16 actually struck down any intrusion upon it based
17 on the facts of our case as they would be
18 different from that.
19 There's commentary. This is Bolling (Bowen) versus
20 Roy. Because our last discussion, I'm going to
21 ask your permission to submit that as evidence
22 prior to actually handing it out to everybody.
23 THE COURT: All right. If this is just
24 another case, let's just have it as an addition
25 to Plaintiff's Exhibit 13. So Plaintiff's
COOK & WILEY, INC.
36
1 Exhibit 13, Subsection A.
2 MR. CARMICHAEL: One of the difficulties,
3 and we're going to have to manage this, I have
4 another case here. It's Layhe (Leahy) versus District of
5 Columbia. Again, what this is -- I guess I could
6 attach it to the same thing. It's discussing
7 this previous case, Roy versus Roy, and how they
8 denied one SSN request for religious
9 accommodation. That Bowen case was somebody
10 asking to not identify with a Social Security
11 number to get a Social Security benefit. That
12 was the case there. We're trying to get a
13 different thing without identifying with the
14 Social Security number.
15 An example of that, Layhe (Leahy) versus District of
16 Columbia. This case was decided after Bowen
17 versus Roy and overturned a lower court that
18 denied a religious accommodation and gave them
19 very clear direction on how to deal with this
20 compelling interest issue.
21 So if the court is going to have to review
22 this 57-2.02, Compelling interest least
23 restrictive means issue, and some of the things
24 that were decided in the motion for
25 reconsideration, then I think it's important to
COOK & WILEY, INC.
37
1 look at other courts that have looked at this in
2 particular based on the Bowen versus Roy
3 perspective. I think this is relevant. It's
4 Layhe (Leahy) versus District of Columbia and I would
5 like to submit that.
6 THE COURT: This is Subsection B to Exhibit
7 13. It's another case, 13B.
8 MR. CARMICHAEL: This is really something
9 I'd like to attach to that. These are -- I have
10 two other cases, Callahan versus Woods, and I
11 have Stevens versus Berger. These were, again,
12 people asking for some kind of welfare benefit
13 without identifying with the Social Security
14 number. They were decided on the compelling
15 interest standard and on the compelling interest
16 standard they won their case.
17 Bowen versus Roy indicated on compelling
18 interest standard it might have been won for the
19 person complaining, but Bowen versus Roy use(d) a
20 lesser standard than I think the defendant would
21 like the court to use.
22 If I could attach these to that Layhe (Leahy) versus
23 District of Columbia, they're very relevant.
24 THE COURT: These are 13C and D. 13C would
25 be Callahan. 13D would be Stevens.
COOK & WILEY, INC.
38
1 MR. CARMICHAEL: Actually, there's a 2006
2 case in the U.S. Supreme Court. It is Gonzales
3 versus, and it's in Spanish, (inaudible). It's a
4 long name. Some people call it the UDB (V). It's a
5 case where the issue of the Religious Freedom
6 Restoration Act against a criminal statute, a
7 federal criminal statute, was claimed as a
8 compelling interest. It was reviewed by the U.S.
9 Supreme Court. A unanimous decision decided that
10 an injunction was the appropriate thing.
11 The lower district court actually gave an
12 injunction that the criminal statute not be
13 opposed (imposed) on these people, (who) had a particular
14 practice, even though it was a very important
15 issue of government. And they reviewed the
16 Religious Freedom Restoration Act and the
17 compelling interest test even.
18 So what we're looking at here is this
19 compelling interest test. This case, I think, is
20 superb in how it deals with this issue. What I
21 did was I have the supreme court decision, the
22 ultimate decision.
23 And I also have a district court ruling that
24 I think what happened is it went up the appeals
25 and went to the supreme court. They affirmed
COOK & WILEY, INC.
39
1 what the district court did. They did a
2 beautiful job. In fact, they talked about the
3 First Amendment and how that really didn't give
4 them (inaudible). It got all the way down to the
5 point where when the Religious Freedom
6 Restoration Act, a similar statute that Virginia
7 statute is patterned after, that was so
8 significant, that even though they failed on all
9 these other claims, that protected their
10 religion.
11 So I just thought that, again, is another
12 model that needs to be considered by the court.
13 I would like to add those to some of these other
14 cases.
15 THE COURT: The U.S. Supreme Court case
16 obviously is important, but if what the U.S.
17 Supreme Court did was affirm what the district
18 court did, I don't need the district court
19 decision.
20 MR. CARMICHAEL: Okay. Yes, ma'am.
21 THE COURT: The U.S. Supreme Court case
22 would be 13E.
23 MR. CARMICHAEL: Now, what I'm going to do
24 is go to Virginia case law that is relevant to
25 this. I'd like to submit this. This is Horn (Horen)
COOK & WILEY, INC.
40
1 versus Commonwealth. It's a very recent case or
2 fairly recent. I believe it was 1997. This has
3 evidence of law where the court reviewed these
4 same issues. It was a religious -- it was a
5 criminal sanction against somebody who would get
6 some kind of parts for certain things and did
7 this something because of their religion and
8 there was a criminal penalty. And so they asked
9 the court to intervene and not allow the criminal
10 penalty to be used against them because of their
11 status.
12 Now, their's was a little bit different in
13 that there was a religious particular practice
14 not necessarily tied with something else where
15 our case is tied with something else. But
16 through Horn (Horen) versus Commonwealth, it dealt with
17 this Religious Freedom Restoration Act, which is
18 just, again, what our Virginia law is modeled
19 after. It talked about the First Amendment
20 protections and also this kind of structure of
21 the Religious Freedom Restoration Act and is very
22 relevant.
23 Some of the things we've cited in our
24 arguments, if we can go to page 743 and paragraph
25 3 and 4. Paragraph 2 talks about the statute was
COOK & WILEY, INC.
41
1 a misdemeanor. If we go down to paragraph 3 or
2 4, it says, Where the states creates a mechanism
3 for legitimate individualized exceptions, but
4 fails to include those religious uses among these
5 legitimate exceptions, discriminatory intent may
6 be inferred. It cited Balwag (Ballweg) versus Crowder
7 Contracting Company, and I have a copy of that as
8 well.
9 If you go on to the next page, 744, Failure
10 to make allowances for bona fide religious uses
11 tends to exhibit hostility, not neutrality.
12 If you go on to page 745 in item 6 and 7,
13 about midway into that paragraph, A substantial
14 burden is imposed on the free exercise of
15 religion where governmental action compels a
16 party to affirm a belief they do not hold,
17 discriminates on the basis of religious beliefs,
18 inhibits the dissemination of particular
19 religious beliefs or compels a party to forego
20 their religious practices.
21 And in our case, the facts that we've put
22 forth is that we have a religious practice that
23 we have the ability to show by evidence is
24 absolutely something we do not do. Whatever cost
25 it will be, we cannot identify with the Social
COOK & WILEY, INC.
42
1 Security number. That's something they've asked
2 us to forego.
3 If you go to the next page, at the top it
4 talks about Balwag (Ballweg) and how that had to do with an
5 employment situation.
6 But if we go to page 747, in the bottom of
7 747 just before the citings of Frazee versus the
8 Illinois Department, etc., it says, Here like the
9 situation of Balwag (Ballweg) the state's action forced the
10 Horns (Horens) to choose between fidelity to religious
11 belief and punishment and thereby bringing
12 unlawful coercion to bear on their choice.
13 Again, it just goes on.
14 I'd just like to submit this as evidence and
15 Balwag as a reference along with it.
16 THE COURT: All right. Plaintiff's Exhibit
17 14 would be admitted.
18 MR. CARMICHAEL: Did we give Balwag?
19 THE COURT: Yes, Plaintiff's Exhibit 15.
20 MR. CARMICHAEL: And one last Virginia case
21 that I have here is Perry versus Commonwealth.
22 It's an older case and it talks about somebody in
23 court, although they were not a Christian, being
24 allowed to testify with, you know, to make sure
25 that they're a credible witness. What it does is
COOK & WILEY, INC.
43
1 Perry goes into some policy issues going back to
2 the foundation and the meaning of the Virginia
3 Constitution. I think this is very relevant and
4 I think it is something the court should consider
5 for evidence.
6 THE COURT: Plaintiff's Exhibit 16.
7 MR. CARMICHAEL: Those were on the issues of
8 the government protecting freedom of religion and
9 whether or not 666 of the federal code could
10 trump religious protection in Virginia. Well, I
11 have some items here that are Virginia law that
12 have to do with using an automobile, an
13 injunction, and certain situations where
14 somebody's possibly unlawfully denied a license
15 in violation of the Constitution that that
16 license was prohibited. The court actually
17 intervened.
18 I have Thompson versus Smith and I would
19 like to submit that to the court.
20 I'll try to skip past the headers. There's
21 many of them. If you turn to page 379 in
22 Thompson versus Smith, Number 9, it says, It's a
23 fundamental principal of our system of
24 government, though the rights of man are to be
25 determined by the law itself and not by
COOK & WILEY, INC.
44
1 administrative officers or bureau. It goes on
2 basically that the legislative branch is going to
3 determine what that is and it shall not divest
4 itself of the function or delegate it to
5 executive or administrative officers.
6 The next paragraph relates to this, but with
7 regard to the statutes 300, 323, and then 320
8 where there was this discretion that the
9 department, not naming who it is, but the
10 department may deny an application. It does give
11 a list of things they can choose as a cause to
12 deny an application, but it doesn't give them any
13 standards expressly of how to influence that
14 decision.
15 In my case for some reason they denied the
16 application, even though I put forth to them the
17 Virginia Constitution, the Virginia law
18 protecting religion. But for whatever reason,
19 somebody somewhere exercised some discretion to
20 deny the license because there wasn't something
21 on the application. They may deny it. So I say
22 it was either -- I think I said that in my brief,
23 that it was either an abuse of discretion to
24 ignore the Virginia Constitution, the laws
25 protecting religion, or it was a violation of
COOK & WILEY, INC.
45
1 Virginia Constitution that that directive is
2 unconstitutional.
3 Much like in Thompson, this statute was
4 unconstitutional because it didn't fix the
5 principles of law that they were supposed to
6 exercise with discretion. It made it so it was
7 no longer a ministerial act. So this is a very
8 important case to evaluate, those instances, and
9 this instance here. If we look at paragraph 10,
10 it says, It does not mean, however, that no
11 discretion can be left to administrative officers
12 in administrating the law.
13 It does go on there. It says that
14 government cannot be carried on efficiently if
15 there's not something left to judgement,
16 discretion, administrative officers. But what we
17 cannot do, it says -- Oh, I'm going to keep on
18 going. It says, Without this power legislation
19 would become either oppressive or inefficient.
20 What I've seen here in this case is the
21 government is choosing
some
detailed (d of) 323 to
22 become oppressive and not -- and saying that they
23 don't have the discretion to apply the Virginia
24 Constitution. That's effectively what has been
25 communicated in the record.
COOK & WILEY, INC.
46
1 So I'd like to submit this as evidence.
2 THE COURT: Plaintiff's Exhibit 17.
3 MR. CARMICHAEL: Another case I think is
4 key, and it has really -- it is what has
5 influenced me. I told this court, and this is
6 something in the brief of the defendant, they
7 said, Look, Mr. Carmichael hasn't been harmed
8 from not having a driver's license because, look,
9 he's gotten by so far without it, without using
10 an automobile.
11 Well, actually, we use an automobile. I had
12 to come to a very grueling decision on that. I
13 had to find ways to make sure we have financial
14 responsibility happening while it was happening.
15 I realize I might face a case where I might be
16 challenged on a criminal case, much like
17 Mr. Thompson was, but I had read Thompson. I was
18 trying to search the law and to find out what I
19 should do and what was the right thing to do.
20 It would take a long time to explain that to
21 people, but I'd like to submit Alexandria versus
22 Texas Company. How can you justify ignoring a
23 license requirement? In Alexandria versus Texas
24 Company, there was somebody trying to exercise a
25 property right. They had a sign they wanted to
COOK & WILEY, INC.
47
1 put up and they wanted to be just like everybody
2 else, but the City of Alexandria had a preferred
3 method that they would like them to conform to.
4 The court said here, and I hope I highlighted it
5 in the right place.
6 Let's look at paragraph 209. Actually, I'm
7 sorry, 217.
8 THE COURT: Page.
9 MR. CARMICHAEL: Page 217. What we're going
10 to see in Number 8 on page 217, (“)The principal (le) is
11 well settled that a state cannot grant a
12 privilege subject to the agreement that the
13 grantee will surrender a constitutional right. (“)
14 Whether it's called a common right by
15 Thompson versus Smith or a privilege, and I don't
16 know where those have been defined by the
17 Virginia statutes. I have not seen that, those
18 definitions, but they cannot (“)grant a privilege
19 subject to the agreement that the grantee will
20 surrender the constitutional right.(“) We made the
21 claim that that's what happened in this case,
22 (“)even in those cases where the state has the
23 unqualified power to withhold a grant altogether. (“)
24 That's pretty strong words.
25 Watch this next line, (“)Where such a condition
COOK & WILEY, INC.
48
1 is imposed upon the grantee, he may ignore or
2 enjoin the enforcement of the condition without
3 thereby losing the grant. (“)
4 I'm doing my best to enjoin it right now.
5 Up to this point the best thing that I had
6 available to me was to ignore. I'm trying to fix
7 that. I want ignore to go away as fast as
8 humanly possible and I'd like to submit this as
9 evidence.
10 THE COURT: Plaintiff's Exhibit 18.
11 MR. CARMICHAEL: I have -- for time, I could
12 go on forever. We live creating evidence. What
13 I'm going to do is I drafted an affidavit of how
14 long I've been using an automobile, my current
15 use of an automobile, how I came to those
16 conclusions, the kind of intrusions that have
17 been made, the damage, the kind of effects.
18 The defendant put in their brief that it was
19 really not affecting us. There are certain facts
20 that you just don't use generally and say, Well,
21 generally people can take the bus. Well, that
22 may be true to general people. I'm not general.
23 I'm not a general person. We've got facts here
24 that talk about what we've done.
25 The other thing is I have a burden to show,
COOK & WILEY, INC.
49
1 and I understand this, that it's our lifestyle.
2 Our lifestyle is to go through life and if
3 somebody will try to affiliate me with a Social
4 Security number by sending me a check or
5 something with a number on it, I send it back.
6 It's in this affidavit.
7 In fact, if a police officer tries to say,
8 Please sign this thing, and they put a Social
9 Security number on a summons or a subpoena, which
10 I have evidence to show that that's the kind of
11 thing they do, is I can't sign it.
12 So what will happen is I get pulled over on
13 a safety check, even though they don't inspect my
14 car and say, Oh, Mr. Carmichael, you won't sign
15 this. Well, you're going to jail. Now, it could
16 be on a weekend. The judge is not there. Even
17 though I'm driving lawfully and I've got
18 everything else taken care of, you'll whisk me
19 off to jail because I cannot sign a form. If
20 they go in the DMV records, Oh, look, Social
21 Security number, put it on the form. That's the
22 kind of thing I face. So I've testified to these
23 things.
24 Also, I want to say that the status quo
25 today, when I was denied the application, I did
COOK & WILEY, INC.
50
1 everything I could to change their mind. We've
2 got a thick record. But the status quo of me
3 using my property, just like I have since I was
4 15, never changed. The status quo of my family
5 members never changed. We've read Alexandria
6 versus Texas Company. We have a rational mind.
7 We have the desire to submit to the law, but the
8 law isn't the person who arbitrarily denies a
9 license. The law is the law. So I had to do a
10 search. That's what I'm asking the court to do
11 here is to really look at the law, to really look
12 at the facts.
13 So I would like to submit this. I do not
14 have a cover sheet for it, but it's my affidavit.
15 THE COURT: Can you show it to counsel.
16 MR. CARMICHAEL: (Complied.)
17 I'm not going to talk about these other
18 things. What I had done is I submitted to the
19 defendant submissions because we had this hearing
20 coming up. What I did is I submitted an
21 application -- affidavit declaring those things
22 in the facts to be true. There were letters I
23 sent to the governor, letters I received from the
24 secretary of the treasury and things like that.
25 The whole history of what I sent to the governor
COOK & WILEY, INC.
51
1 in a package, I had put to the court. I sent to
2 the clerk. I put on there Exhibit 1 through 10A
3 and 10B. There was 1 through 9 and then 10A and
4 10B.
5 Since then I've submitted some affidavits
6 that talked about these facts of the complaint
7 because the complaint really wasn't in an
8 affidavit form. It was kind of second person.
9 What I did was affirm those things that were
10 factual that I personally had first-hand
11 knowledge of. I had submitted those to the
12 clerk, so I'm not prepared to give a copy to
13 Ms. Gilliam. She's got a copy of that and I sent
14 a copy to the clerk and it was listed as Exhibits
15 1 through 9 and then 10A and 10B. I have an
16 example of what 10A and 10B look like here. I
17 actually have a copy of those, so I could
18 reproduce them here today because I actually have
19 them in my binder.
20 But I would like those to be submitted.
21 They're all the correspondence that I had plus a
22 couple of affidavits affirming those things to be
23 true with regard to what the record should be up
24 to this date. Can we just note that?
25 THE COURT: The court does not have that.
COOK & WILEY, INC.
52
1 The last thing we have was filed January 5, 2009,
2 but it may be downstairs. It may be in the
3 clerk's office. Was it sent after January 5,
4 2009?
5 MR. CARMICHAEL: I think Items 11 and 12
6 were January 5. Let me double check.
7 THE COURT: So you didn't send them all
8 together?
9 MR. CARMICHAEL: No. I sent the first for
10 discovery, basically admissions, please admit the
11 following things. Jesse sent a notice of
12 appearance. I had an affidavit to support my
13 complaint regarding my religion.
14 THE COURT: I just need to know the date you
15 sent it to the clerk's office.
16 MR. CARMICHAEL: There's my cover letter.
17 You were closed that Friday, January 2.
18 THE COURT: So it was over the holiday?
19 MR. CARMICHAEL: Yes.
20 THE COURT: It has not yet reached the file
21 that the court has here, but it may be downstairs
22 in the clerk's office.
23 MR. CARMICHAEL: That is my package. I
24 realize because of the weight of evidence I had
25 to put, I do actually have witnesses. I don't
COOK & WILEY, INC.
53
1 know what the timeframe is here. What my
2 witnesses will say, I have a witness to declare
3 that he went into the DMV with his minor son who
4 had never had his name associated with a Social
5 Security number and actually got a driver's
6 license issued to him. He's here with firsthand
7 knowledge of that instance because he had to
8 intervene as a father.
9 In Items 1 through 12 or 1 through 10. 10A
10 and 10B, I have examples of DMV documents that
11 show different numbering systems that they have
12 depending on somebody's condition, whether
13 there's a Social Security number associated with
14 their record or not. I have a witness who can
15 actually testify that the DMV does, in fact,
16 issue driver's licenses for somebody who has
17 never been affiliated with a Social Security
18 number for no religious reason.
19 MS. GILLIAM: Your Honor, I would object to
20 the testimony of the witnesses. I believe that
21 Mr. Carmichael has presented his case to the
22 court and proffered the testimony of what these
23 witnesses would say and it would be irrelevant
24 and would not support the issuance of his request
25 for injunctive relief.
COOK & WILEY, INC.