City of Hampton v. Carmichael, Driving Without Operator's License

March 11 2004 Trial - City of Hampton v. Lesie Carmichael
Driving Without Operator's License
Defense Claims Virginia Constiution and Common Law Protection
Of Right to Use Automobile Without Forsaking Religious Obligations

Defendant - Leslie Carmichael
Defence Counsel - Herb Titus
City Attorney - Lesa Yeats
Judge - Wilford Taylor, Jr.

MS. YEATS: Your Honor, if we could call the matter of Leslie Carmichael.
THE COURT: Leslie Carmichael. Mr. Gunther, welcome to the court. Good morning.
MS. YEATS: Your Honor, this is Mr. Titus.
MR. TITUS: Titus
THE COURT: Oh, it’s Mr. Titus.
MR. TITUS: Yes.
THE COURT: Okay.
MR. TITUS: This is Mrs. Carmichael.
THE DEFENDANT: Hi.
THE COURT: Good morning, Miss Carmichael.
THE DEFENDANT: Good morning.
THE COURT: Mr. Titus, welcoe to the court.
MR. TITUS: Thank you, your honor.
THE COURT: Well, she’s before the Court on no valid operator’s license?
MR. TITUS: Correct.
THE COURT: Oh, wait a minute. This is a – I had read this. There’s a –
MS. YEATS: A pending motion, your Honor, with Mr. Titus.
THE COURT: -- a motion. It looks like, Mr. Titus, you have a motion before the Court?
MR. TITUS: Yes, your Honor. We have a motion to dismiss and I believe that there’s a response to it.
THE COURT: Yeah. Well, have a seat, ma’am.
THE DEFENDANT: Thank you.
THE COURT: Tell me what your motion is.
MR. TITUS: Your Honor, our motion is to dismiss this particular matter on the ground that the Defendant did not have an operator’s license because the Department of Motor Vehicles arbitrarily denied the application that was submitted to the DMV back in June of 19—of 2002 and you’ll see in Exhibit Number 1 – and, your Honor, I would like for the record to show that there are Exhibits 1, 2, and 3 –
THE COURT: I don’t have any.
MR. TITUS: --were presented to the court at a session two weeks ago.
THE COURT: Oh.
MR. TITUS: And, your Honor, that – your Honor, it is my understanding from the City Attorney they do not object to the introduction of those exhibits as evidence in support of this motion and we would so move that they would be admitted into evidence with regard to this motion.
MS. YEATS: -- two weeks ago on the first in. He received the exhibits. I had not had a chance to review them. I reviewed them and for the purposes of the motion do not object –
THE COURT: Okay.
MS. YEATS: -- to them.
THE COURT: Exhibit 1 –
MR. TITUS: Exhibit 1, your Honor –
THE COURT: --is a letter from Ashbury Quillian to Mr. David Carmichael.
MR. TITUS: Yes.
THE COURT: I just want to make sure we identify it.
MR. TITUS: That is correct. And there’s – in that exhibit of 7 pages, your Honor, there’s a letter from Mr. Carmichael to Mr. Quiillian as well as two applications for an operator’s permit – driver’s permit and a $20 check –
THE COURT: Right.
MR. TITUS: -- with that particular exhibit. Exhibit Number 2, your Honor, is a three-page exhibit.
THE COURT: Right. It’s dated February 15th.
MR. TITUS: That is correct. And, again, it’s a letter from Mr. Quillian in response to a letter from Mr. Carmichael that’s dated the 6th of February of 2002 and that is a two-page letter. And then your Honor, there is Exhibit Number 3 that is an exhibit of four pages and the letter dated October 5, 2001 from the Commonwealth of Virginia, the Attorney General’s Office, and again, a letter of September 17, 19 – 2001 from Mr. Carmichael with regard to this matter. And we would so move their admission, you Honor.
THE COURT: Okay.
MR. TITUS: Your Honor, with respect to our motion to dismiss, it’s based upon two grounds. The first ground is that this was a request for a religious accommodation not to submit a social security number to the Department of Motor Vehicles, which is otherwise required under 46.2-323. And there is a provision, your Honor, that for good cause shown --
THE COURT: Hold on a second. All right. What did you just cite?
MR. TITUS: That’s 46.2-232—323, your Honor. And if you look under subsection B. (Court perusing document.)
THE COURT: Okay. Go ahead.
MR. TITUS: And it states that, in subsection B: “Every application shall state the name, year, month and date of birth, social security number, sex, and residence and address of the applicant.” In the letter in Exhibit 1 from Mr. Carmichael he specifically requested a religious accommodation that the social security number would not be submitted for the application for the driver’s license for Mrs. Carmichael as well as for himself. And it was based upon, your Honor, a provision that’s in the last sentence of subsection B of 46.2-323, where it says, “The Commissioner may, on a case-by-case basis, waive any provision of such regulations for good cause shown.”
THE COURT: What are you reading from?
MR. TITUS: This is on 46.2-323. It’s the last paragraph of subsection B.
THE COURT: All right. I see that.
MR. TITUS: So this requirement with regard to a social security number is not absolutely required.
THE COURT: All right.
MR. TITUS: For good cause shown, the Commissioner can waive any provision of this regulation. Now, it’s our position, your Honor, that the Commissioner didn’t even consider whether there was good cause shown by Mr. Carmichael in the letter that’s in both Exhibit 1 as well as in Exhibit 2. Instead, the Commissioner said, “Well, if the federal government would indicate to us that there is no social security number identified with either yourself or your wife, then that’s the only basis upon which we would exercise the discretion that is under this particular statute. Well, that doesn’t even indicate that he exercised the discretion. He didn’t indicate for good cause shown. He simply refused to address the question.
THE COURT: Don’t they have a procedure – hold your point – don’t they have a procedure to deal with rulings by the Commissioner of DMV?
MR. TITUS: Well, there is a procedure, you Honor, but in this particular case, there was no formal procedure. It was simply a request with regard to an application for a driver’s license.
THE COURT: I see. I follow. Go ahead.
MR. TITUS:. Now, your Honor, there is a particular statute that addresses this particular question with regard to the disclosure display of social security number. This is 2.2-3808. If you want to look at that, it’s under subsection A.
THE COURT: Yeah. Let me look at it. 2.2 what?
MR. TITUS: 2.2-3808, your Honor.
THE COURT: Okay. Go ahead.
MR. TITUS: In subsection A: “It shall be unlawful for any agency to require an individual to disclose or furnish his social security account number not previously disclosed or furnished, for any purpose in connection with any activity, or to refuse any service, privilege or right to an individual wholly or partly because the individual does not disclose or furnish such number, unless the disclosure or furnishing of such number is specifically required by federal or state law.” Now, in this particular instance, Mr. Quillian did not indicate that federal law requires the state of Virginia, particularly the Department of Motor Vehicles, to require an applicant for a driver’s license to disclose a social security number. He just simply said, “Well, unless the federal government erases a social security number identified with you, then I’m not going to do anything about this at all.” Now, notice this ignores what is his authority under 46.2-323 where it says on a case-by-case basis for good cause shown the Commissioner of the Department of Motor Vehicles may waive this requirement. Now, notice that indicates then that under 2.2-3808 it’s not required under state law either because it’s waivable by the Commissioner on a case-by-case basis for good cause shown. Now, your Honor, in this particular situation, the Commissioner of the Department of Motor Vehicles didn’t even address the question of whether or not Mr. Carmichael had shown good cause when he asked for a religious accommodation based upon his previous correspondence. So it’s our position, you Honor, that Mrs. Carmichael’s application was denied arbitrarily without any justification whatsoever. It was not an abuse of discretion, your Honor. It was not any exercise of discretion at all. And so here’s Mrs. Carmichael, she’s unable to obtain a driver’s license because the Commissioner of Motor Vehicles simply refuses to exercise the authority and responsibility that he has under 46.2-323. Now, your Honor, in this particular case, it goes to the very heart of the freedoms that we enjoy in the Commonwealth of Virginia. It goes to the heart of Article I, Section 16, and as you well know, your Honor, this was written by Thomas Jefferson back at the time when this Commonwealth was first formed as a state in the United States of America, and it is the leading principle with regard to freedom of religion in America. Now, Mr. Carmichael very clearly lays out both in Exhibit 1 as well as in Exhibit 2 that he and his wife have come to this conviction of 666 is a number of the beast based upon religious conviction and so forth, and so what we have here is by denying an application for a driver’s license in Virginia, what has happened here – and if you look at Article I, Section 16 of the Virginia Constitution, it reads this way –
THE COURT: Wait a minute.
MR. TITUS: Okay.
THE COURT: Section – what section?
MR. TITUS: It’s Article I, Section 16, you Honor. It’s close to the end of the section. It’s a rather long section. I think if you go up 1,2,3,4,5,6,7,8,9,10,11,12,13 lines from the bottom, your Honor –
THE COURT: Okay.
MR. TITUS: -- you’ll see a sentence that begins with no man.
THE COURT: Uh-huh.
MR. TITUS: “No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” That, of course, is not at issue in this case. But what is at issue is this, your Honor: No man “shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.” Now your Honor, as we point out in our motion to dismiss, while – while driving on the highways of Virginia is not an inalienable right itself, it is a common right. Listen to what it says in Thompson v. Smith, as pointed out on page 1 of our motion to dismiss, “The right of a citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common right which he has under the right to enjoy life and liberty, to acquire and possess property.” Now, notice that goes to the very notion of liberty and it goes to the very notion of one’s exercise of their rights of property and the pursuit of happiness, which is also part of the guarantees of the Virginia Constitution in Article I. And so in this particular case, because the Commissioner of the Department of Motor Vehicles arbitrarily refused to exercise the discretion and authority that he had under the statutes of Virginia, he placed upon Mrs. Carmichael a burden, both in terms of her body and her goods, simply because of her religious belief and opinions, which are clearly set forth in the letters that were submitted to the Commissioner of the Department of Motor Vehicles. So, your Honor, we believe that this particular charge against Mrs. Carmichael must be dismissed because otherwise it violates both Section 46.2-323, because the Commissioner refused to exercise the discretion and authority that he had under sub section B, and also, you Honor, because it places an unconstitutional condition upon a common right to drive on the highways of Virginia. There’s no evidence in this case – in these communications that Mrs. Carmichael was not otherwise qualified to drive. It was simply on the basis of the religious belief and opinion expressed by her husband in the communications to the Commissioner. So we believe that this particular charge against her should be dismissed. Thank you.
THE COURT: Thank you. Let me hear from the City.
MS. YEATS: Your Honor, both parties have filed written motions in this matter and I think that – that although I can appreciate counsel’s zealous and articulate argument, I believe that the argument is misplaced in this court pursuant to the proceeding that’s before your Honor today, which is simply a misdemeanor charge in the year 2003 for driving without a valid operator’s license. Um, your Honor, this act occurred in June of 2002, more than a year and a half ago, and now at this point, when she is charged with a misdemeanor, Mrs. Carmichael attempts to collaterally attack that which she did not appeal, the administrative decision pursuant to her rights that she had under the Administrative Process Act, to appeal the decision that she feels – felt aggrieved of pursuant to the process that is provided for in the Code of Virginia. There’s no evidence here today that she attempted an appeal through that process. I think contradictory to what counsel has argued here, that – that it was an administrative decision that was made pursuant to 46.2-323. Whether or not the Commissioner of DMV made this decision with reference to good cause shown, without good cause shown, your Honor, I don’t think we have those facts before you and I don’t think you need to have those facts before you. The simple – the simple issue here is: Is this – is this the forum within which the Defendant can ask the Court to review the decision of the Commission of Motor Vehicles? And I would submit that it is not. She has that particular process, your Honor, which is controlled by the Administrative Process Act, which limits the right of appeal to decisions for the – from the Commissioner to that process act pursuant to 46.2-320 and 321. I do not believe that your Honor today can review the actions of that Commissioner through this particular criminal or traffic proceeding that’s before the Court.
THE COURT: Okay.
MS. YEATS: And although Mr. Titus’ arguments are very articulate, I don’t think we get there today.
MR. TITUS: Your Honor, may I reply to that?
THE COURT: I tell you what I want you to do. I want you to hold onto that. Let me tell you why. You don’t have to sit down. Stand up. You don’t have to sit down. You can stand up. I didn’t mean for you to sit down.
MR. TITUS: Oh.
THE COURT: And let me tell you why. The City did respond with this motion to deny your motion to dismiss, citing 323, which I already researched based on your brief, and I really haven’t had a chance to look at the Administrative Process Act, because it was just handed to me. So I’m not really prepared to deal with that today and I’m going to need a couple of weeks to review this.
MR. TITUS: Your Honor –
THE COURT: So I just want to tell you up front I’m not going to decide this today.
MR. TITUS: Okay.
THE COURT: But if you want to make some more comments and I’m—I realize this is a trip back to the court, but in light of – and let me just tell you. You raise some very important concerns about the constitution and how we need to make sure we follow that as well as the law, and I want to make sure I understand all of the laws that really come from the APA, Administrative Process Act, and I just haven’t had a chance to review it, so I’m not going to be able to rule on this today. It will take me a couple of weeks. Now, having said that, what else do you want to say to me?
MR. TITUS: Well, your Honor, I do want to just indicate to the Court –
THE COURT: Go ahead.
MR. TITUS: -- we will submit in writing our response to the argument of the City. I do want to call your attention, your Honor –
THE COURT: Sure.
MR. TITUS: -- that 46.2-321, which is relied upon by the City, specifically refers to any person denied a license or whose license has been revoked, suspended or canceled under this article. And if you look at the very next page in the code book , you’ll see that that’s article – that the new article, Article 4, has constrasted to Article 3 where 46.2-321 is. Article 4 is 46.2-323, which is the very matter that I argued before the Court this morning. So the statute upon which the City is relying doesn’t apply to this particular case. And I just wanted to indicated to your Honor that we would be pleased to have the opportunity to brief this fully –
THE COURT: Sure.
MR. TITUS: -- because we believe it is important. We believe that this Court does have jurisdiction, particularly in the light of the fact that there’s a specific provision with regard to the social security numbers I quoted to you, 2.2-3808, which is in Chapter 38, and clearly, 46.2-321 doesn’t refer to that. So I understand, your Honor, you haven’t had an opportunity, and, of course, we didn’t have an opportunity to submit a written response –
THE COURT: Right.
MR. TITUS: -- and we’d appreciate it. Do you have a time limit within which you would have us –
THE COURT: No. I don’t want – I don’t want it to last too long, but let’s –
MS. YEATS: Your Honor, could I just respond for the record –
THE COURT: go ahead.
MS. YEATS: -- to the comment about 321? Your Honor, that code section does have a caveat that refers you to another code section – that’s not right in front of me – that – that does define which actions that right of appeal does apply to. So I think I would just request that –
THE COURT: Let me make sure I understand, okay, since you said it so quickly. What you’re saying is that the Court doesn’t have jurisdiction to review the actions of this – this Commissioner of the DMV?
MS. YEATS: Yes.
THE COURT: That’s what you are –
MS. YEATS: Very simply, yess –
THE COURT: Yeah. Okay. And, of course, Mr. Titus disagrees with that.
MS. YEATS: Particularly at this point in time.
MR. TITUS: That’s right, your Honor. We believe that in a criminal matter such as this, it’s very important that the constitutional rights of every citizen of Virginia are protected. Thank you.
THE COURT: All right. Let’s do this. Give me – how long is it going to take you to do your response?
MR. TITUS: We can submit it next week, your Honor.
THE COURT: Next week. Let’s do this in three weeks. I’ll make a decision in three weeks and I’ll give you one week to file anything else you want – you may want to file with me.
MR. TITUS: If we could have until Friday of next week –
THE COURT: That’s fine.
MR. TITUS: -- to submit our –
THE COURT: That’s fine.
MR. TITUS: -- reply to –
THE COURT: And we normally do these on Thursday mornings.
THE CLERK: April 15th.
THE COURT: That’s another important government date.
MR. TITUS: April 15th, is that –
THE COURT: Yeah.
MS. YEATS: Your Honor, if I could – if I could look at a calendar, your Honor, I think this is one that my office is going to want me to keep as well –
THE COURT: Yeah.
MS. YEATS: -- and I do not think I’m in town that week.
THE COURT: Yeah.
MS. YEATS: That is the week that begins with the 11th?
THE COURT: Yeah.
MS. YEATS: I’m not going to be here, your Honor.
THE COURT: How about the following week?
MS. YEATS: That’s fine.
THE COURT: How is that?
MR. TITUS: I believe so, your Honor.
THE COURT: Will that be all right, the following week?
MR. TITUS: April 22nd?
THE COURT: No. Wait a minute. Let’s do this.
(The Court conferred with the Clerk)
THE CLERK: April 23rd.
MS. YEATS: I’m sorry. April 23rd?
THE COURT: Yes, April 23rd.
MR. TITUS: April 23rd, is that a Thursday, your Honor?
THE COURT: That’s a Friday.
MR. TITUS: A Friday. I believe that’s –
THE COURT: I’m going to schedule it for me. We’ll do it at 10:30. Is this time convenience for you?
MR. TITUS:. 10:30 would be fine.
THE COURT: All right. Then you have until Friday week to submit to me any paperwork you want me to review.
MR. TITUS: Well, in light of that, your Honor, it would – I would – I was assuming that we were going to have another hearing within two weeks. If I might have until Wednesday of the following week.
THE COURT: Which would be what date? Whatever date you pick is fine.
MR. TITUS: I’m not sure exactly what date it is, but I do know it would be difficult for me to get it in on Friday because I will be out of town some of the week.
THE COURT: Well –
MS. YEATS: Your Honor, perhaps we could give Mr. Titus two weeks and –
THE COURT: Okay.
MS. YEATS: -- and me two weeks.
THE COURT: Two weeks.
MR. TITUS: That would be wonderful.
THE COURT: Two weeks.
MR. TITUS: Two weeks.
THE COURT: Two weeks. You got it. Two Thursdays from today.
MR. TITUS: Thank you so much, your Honor.
THE COURT: And the City can respond –
MS. YEATS: Within two weeks.
THE COURT: -- within two weeks after that.
MS. YEATS: That should give the Court –
THE COURT: And then y’all can come back and I will listen – you know, I’ll give you some latitude to say anything else you want to say to me on that morning –
MR. TITUS: Thank you, your Honor.
THE COURT: -- concerning the case, and then I’ll rule on this first question of whether I have jurisdiction to even hear your motion to dismiss, and then we’ll go from there.
MR. TITUS: Thank you, your Honor.
MS. YEATS: Thank you, Judge.
THE COURT: And, of course, you will need to be – have all your witnesses in case we have to go forward.
MR. TITUS: Yes, sir.
THE COURT: I just want to make sure that’s clear. This matter is continued. What date do we have?
THE CLERK: April 23rd.
THE COURT: April 23rd.
MR. TITUS: Thank you very much.
THE COURT: Thank you so much.
(The Proceedings were concluded.)

David Alan Carmichael v. United States, American Christian Liberty Society, ssn, patriot, 666, number of the beast
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