Petition for Writ of Certiorari — Kelley v. Ohio

SUPREME COURT OF THE UNITED saan F. SPANIOL, JR.

CLAIRE KELLEY, Petitioner

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

No.

Supreme Court, U.S.

FILED

October Term 1988

AUG 12 1986

CLERK

—

Ve

STATE OF OHIO,

Respondent

COUNSEL IN PRO SE

OPPOSING COUNSEL

JOHN J.

466 So.

PLOUGH, Pros.

CHESTNUT

RAVENNA, OHIO

#44266

PHONE:

(216) 296-4593

CLAIRE KELLEY (Ms.)

6605 Sutton Dr.

N.OLMSTED, OHIO

#44070

(216) 779-8854

QUESTIONS PRESENTED FOR REVIEW

I

DID THE TRIAL COURT DENY DUE PROCESS

TO PETITIONER KELLEY BY REFUSING ANY

MEANINGFUL CONSIDERATION OF THE CON-

STITUTIONAL ISSUES SHE RAISED IN HER

MOTION TO DISMISS AND RE-NEWED MOTION

TO DISMISS BY LEAVING IT TO THE APP-

ELLATE COURT TO SETTLE BECAUSE THE

TRIAL COURT DECLINED TO "MAKE POLICY"

IN CONSTITUTIONAL ISSUES?

II

WAS PETITIONER DENIED A FAIR TRIAL BY

THE TRIAL COURT'S OVERRULING HER MO-

TION TO STRIKE RADAR EVIDENCE, EVEN

THOUGH THE TRIAL COURT SAID IT WAS NOT

THE BASIS OF HER ARREST AND THE RE-

SULTING SURPRISE CAUSED HER TO FORGET

TO CALL HER TWO WITNESSES ON RADAR OB-

STRUCTION?

Ii!

IS AN ARREST QUOTA SYSTEM AN UNFAIR

BASIS FOR ENFORCEMENT OF THE 55 MPH

SPEEDING LAW? |

IV

WAS IT ERROR TO ASCRIBE CREDIBILITY

TO THE ARRESTING OFFICER WHEN HE GAVE

CONFLICTING TESTIMONY?

PARTIES TO THE PROCEEDINGS

JOHN J PLOUGH, Prosecutor

466 S. Chestnut Street

Ravenna, Ohio - 44266

CHARLES FRIED, Solicitor General

Department of Justice

Washington, D.C. = 20530

CLAIRE KELLEY, Petitioner

6605 Sutton Dr.

N.Olmsted, Ohio - 44070

afin

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.....

TABLE OF Fy 9 4 + ee

Pg.

OPINIONS Deseo ecco cceeoele‘esceses 1

Ft gra

CONSTITUTIONAL PROVISIONS & .

Dee OS CoS COCO OEEC OOOO OOOO OCCS

_ STATEMENT & if. \

REASONS FOR GRANTING WRIT..........

Argument b6656060068 6600006006

Argument 8 PPT TT TTTTrTrTrTT

Argument Ss 66060 60660666006066

Argument 66666606600 6666066066%

0 Ee

A-1

Constitutional Provisions &

Statute Din a6666066666060066

Ohio Supreme Court Order of

Denial #87-1665,Rehearing...

Ohio Supreme Court Order of

Denial #87-1666,Rehearing...

Ohio Supreme CourtOrder of

Dismissal, #87-1665/1666....

Judgment Entry from Ohio

Court of Appeals-llth Dist..

-iii-

53

58

A-6 Opinion from Ohio Court

of Appeals-llth DESC ccccccce

A-7 Kelley I.D. - Front Side.....

A-8 Kelley I.D. = Back SLGGcccece

DECLARATION OF SERVICE.....ccccccecs

TABLE OF AUTHORITIES

Pg.

CONSTITUTIONAL LAW

Ordinance of PPT Prrr Tr TTT To

Art. VI, U.S.Constitution.......2,16

lst Amend.U.S.Constitution......2,7,17,

34,36,37,

38,42

5th Amend.U.S.Constitution......2,7,17,

34,36,

37,42,

48,49,

50,51

9th Amend.U.S.Constitution......2,11,15,

17,34,36,

37,42

10th Amend.U.S.Constitution.....2,10,26,

27,29

14th Amend.U.S.Constitution.....2,7,16,

17,23,26,

34,36,42,

48,49,50,

51

STATUTE LAW

23 0.8.6. 194¢a) 6 CE) (CS) cccesesdgatet

23 U.S.C. 154(e) & (£)(1)-(5)...13

O.BeGe S667 GR ccccsccscssceeteaes

25,35,

44

O.R.C. 4522-2000) «00 ccreseesosstetea@e

-Ve

Pg.

CASE LAW

F Vv. pda teaetandaat ates

Grand River Dam Authority v.

Coing, (1939) 29 F.Supp. SIE... ..28

Griswold v. Conn., (1965).......36,37

Kansas Ci So. R.Ry Co v.

Anderson, TISTiy ck Sete 20sec 8?

Maryland v. Wirtz, (1968).......27

Miller Vv. U.S MPYTTITYTITTTriiTT

730 ¥. 266

Nashville C. & St. Louis Ry. v.

yy Se

Norris v. Alabama, (1935).......23,24,25

Robb v. Connally, (1884)........23,24

Sherar v. Cullen, (1973).......+43

Smith v. Thompson, (1930).......37

reer VW. U.8.~_. C1B9S) cccccccccccds

OTHER

Diary of John ASGOMBcccecceeeeseeas

Case & Commem@ecccccccccsocecseese

-vi-

LS

l6a Am. Jur. 2dowssceccccccceeeee 26

Cleveland Plain Dealer...........3l

Wigmore, Evidence......seeeeeeeesI34

Chase Trial Pre cane ees eeererme

Declaration of Independence......46

ABBREVIATIONS

a - Appendix

MD - Motion to Dismiss

MH - Motions Hearing (transcript)

T.Tr. - Trial Transcript

Tr. Ex. - Trial Exhibit

Ex. - Exhibit

AB - Appellate Brief

App. Op. - Appellate Opinion

NOTE

All emphasis is Petitioner's

-vii-

No.

SUPREME COURT OF THE UNITED STATES

October Term 1988

CLAIRE KELLEY, Petitioner

v-

STATE OF OHIO, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Petitioner, CLAIRE KELLEY, respect-

fully prays that a Writ of Certiorari

issue to review the judgment of the

Supreme Court of Ohio, entered in this

proceeding June 15, 1988.

OPINIONS BELOW

There was no Opinion’ from the Ohio

sie

a

Supreme Court. It's Orders of Denial

are included in the Appendix as A-2,

A-3 & A-4.

The Opinion from the Ohio Court of

Appeals for the Eleventh District, Por-

tage County, is included herein as A-5.

JURISDICTION

The Judgment of the Ohio Supreme

Court was entered on May 11, 1988.

A timely Motion for Re-hearing

was denied June 15, 1988. (No time

given.) This Petition for Certiorari

is filed within (60 days of that

date. This Court's jurisdiction is

invoked under 28 U.S.C. 1257(3).

CONSTITUTIONAL PROVISIONS

The full text is set forth in the

Appendix as A-l, with citations below:

U.S.CONSTITUTION: Art. VI, Amend-

ments 1,5,9,10,14; Ordinance of 1787.

U.S.STATUTE: 23 U.S.C. 154(a),(£) (5).

OHIO STATUTES: 0.R.C. 4507.02 &

O.R.C. 4511.21(D)

-2-

STATEMENT OF THE CASE

Driving on the Ohio Turnpike, Sunday,

October 8, 1985, Petitioner was on her

way to church, in Pennsylvania, when she

was arrested a few miles from the Ohio/

Penna. border for (1) allegedly speed-

ing at 68 mph, O.R.C. 4511.21(D),/ p57

and (2) for operating a motor vehicle,

without a valid driver's license, 0.R.C.

4507.02, p. 56 herein.

Petitioner had been a licensed driver

with a clean record and chose not to re-

new her license in July 1985, because she

believed that a license cannot be crea-

ted out of a common right and that pri-

vate use of streets and highways, is a

right, not a privilege.

When asked for her license, she gave

the otttese an I.D. card, with her

signed claim of her constitutional

right to travel unimpeded, unless in-

_£n.] - Ohio Revised Code

«$e

jury or property damage occurs, and

supporting law, on the back. (p./07)

After a yy in custody at the

Highway Patrol station, she was allowed

to drive home, but not to church.It was

an hour's drive during which she was

followed by an officer, almost to her

Turnpike exit.

At her initial appearance, Ms. KELLEY

appeared specially and respectfully de-

clined to plead, not wishing to admit

the jurisdiction of the court. The

court refused to plead her and was visi-

bly angry, and threatening.

At a second appearance, the court pled

her ‘not guilty’ to both charges.

On December 2, 1985 she filed a Mo-

tion To Suppress all radar evidence and

on December 27, 1985 she filed a Motion

to Dismiss both charges. A later hear-

ing was held and both Motions were denied.

On February 28, 1986 Petitioner was

tried on the speeding charge and found

guilty. She was fined $50 and costs.

On May 20, 1986 Petitioner was tried

by the court (no jury) and found guilty

of driving without a valid license. She

was fined $500 and costs. Sentence was

suspended on condition that she obtain

a valid Ohio driver's license. She

then moved for and was granted, a stay

pending appeal.

Both convictions were appealed to

the Court of Appeals For Ohio, Eleventh

Appellate District. An Opinion was

filed August 3, 1987 at 9:22 A.M.,

consolidating both cases (#1677/speeding

& #1745/no valid license), and affirm-

ing judgment of the trial courtp. ¢/ .

Said Appellate Opinion was appealed

to the Ohio Supreme Court, which dis-

missed both cases, sua sponte, without

reason or opinion. Petitioner's Motion

for Re-Hearing of both cases (87-1665

& 87-1666)was denied June 15, 1988.

The federal questions sought to be

revirwed here, were raised pre-trial,

in the Portage County Municipal Court

of first instance by:(1) a written Mo-

tion To Dismiss both charges, based up-

on constitutional grounds and federal

statutes (2) written Motion To Suppress

radar evidence (3) re-newed oral Motion

To Suppress radar evidence mid-trial

when Court ruled it irrelevant at speed-

renewal of

ing trial (4) oral/Motion To Dismiss

no driver's license charge, immediately

due to a new

preceding trial/ constitutional ground.

of

Denials/ these Motions were raised

upon appeal and are contained in the

Appellate Court's OPINION which lists

the Assignment of Errors in both cases,

tre od And ad 8 £3 AG Rd he

set forth herein,at A-_& , p-6A2.,

along with appealed trial errors.

They were raised as 14 propositions

of law to the Ohio Supreme Court and

appear in Petitioner's Memorandum In

Support of Jurisdiction filed in said

Court, in the Index, p.i to iv, in said

Memorandum, p.3 to 16 and in the App-

6sy

endix p.24 and again at p.4¢in the

attached Appellate Court's Opinion.

Petitioner would add here that she

raised the lst, 5th, and 14th Amend-

ments even prior to Municipal Court,

when she presented her I.D. to the

Highway Patrol Officer, at the time of

her arrest, See: A-7¥@ herein, at p.4e7.

These constitutional issues were

dealt with as follows:

MUNICIPAL COURT - The Trial Court

refused to consider any constitutional

defenses } tue presented by Ms. KELLEY

and heard arguments on them only to

enter them in the record so they could

be denied and passed on to the Appellate

Court who have more time and staff to

“get into the constitutional areas of

the issue", therefore, they were summ-

ate

arily denied. The Trial Court's remarks

part,in

appear in/the Motions Hearing Transcript

(MHT), at p.13 & 14 as follows:

"THE COURT: ...Normally it is not the

trial court's province to declare un-

constitutionality. Certainly they can

do it, but the trial court is follow-

ing the presumption and being the

settler of a dispute between parties,

which is one of the primary functions

of the trial court, to settle the

factual matters and settle the dispute

as opposed to making a policy matter.

MS.KELLEY: I understand.

THE COURT: Declaring a statute uncon-

stitutional creates a policy issue.

Most policy matters are better done

by Appellate Court with all the re-

sources that they have available in

Law Clerks’ research time, to better

get into the constitutional areas of

the issue.

I am not saying they don't do it.

I'm simply saying that the constitu-

tional questions are better raised

and better handled as a general rule,

in the Appellate Courts, than they

are in the trial courts." MHT-p.13-14

MS. KELLEY: It seems to me the law

should be settled. I really feel

that I should not be put at jeopardy.

THE COURT: You are at jeopardy in a

trial.

MS, KELLEY:That's right;that's right.

oe

On an issue of law, if the issue of

law cannot, in some sensible way be

litigated at re-trial, or at trial

--I mean if there is no lawin lower

Court and you og. to go to higher

Court to get any law, it boggles my

mind,” MHT-p. 18 sad

The above remarks were quoted in both

Ms. KELLEY's Opening Briefs to the App-

ellate Court. There was also a remark,

off the record, possibly after court was

adjourned at the Motions Hearing, by the

Judge who explained co} eee as was

not the ‘policy’ of the Ohio Judiciary

to handle constitutional issues in lower

courts.

It was the same with the Motion to

Suppress, which raised a constitutional

issue. Then at trial, after the radar

evidence was given by the arresting Offi-

cer, while Petitioner was cross-examining

him, the Trial Court interrupted and

stated :

THE COURT: The radar is not the basis

of ke arrest in shrigins | County.

Tr. Trans. 2/28/86 - 4,last line

However, the Court denied Ms. KELLEY's

ate

Motion to Strike the radar evidence.

Tr. Trans. supra, p.25, 2/28/86.

The oral,re-newed Motion to Dismiss,

based on a new constitutional ground,

just prior to trial #2, May 20, 1986

was also ‘allowed into the record’,

thereby

summarily denied and/relegated to the

Appellate Court.

APPELLATE COURT:

—fssues

ae—presented, leaving some—totatty—eun -

addressed while eonvolutingotheres—and

arguing statute law-over constitutional

teu-enh-ta-ceuplete contradicttor-of

No mention was made of Petitioner's

argument that the claim of a constitu-

tional right cannot be made into a crime,

(First raised in written Motion to Dis-

miss p.1ll and raised on appeal in Case

No.1745 (no license) in Opening Brief,

nor

p-6 & 11); of her lOth Amend. argument

-10-

that State sovereignty is reserved as

(speed limits)

to police matters/and that her law and

arguments on this, if read, were ignor-

written

ed - (First raised in/Motion To Dis-

miss p.6 to 9 and on appeal in Case No.

nor

1677, speeding-p.8);;of her common law

rights as to corpus delecti and mens rea,

protected by the 9th Amend. and the Ord-

rdinance

inance of 1787, which/also declares in

its sec. 14 that the following Articles

“forever remain unalterable, unless by

common consent..." that Article II says

"The inhabitants of the said

territory shall always be entitled

to the benefits of...judicial pro-

ceedings according to the course

of common law."

Corpus delecti and mens rea are required

under the common law.

The Appellate Court states on p._75_

of its Opinion herein (A-4 ), that Peti-

tioner said she was surprised by something

the arresting officer said making her for-

to

get /call her two witnesses. This is a

truth.

half / The record clearly states that it

- al

was what the Trial Court said that blew

her mind. After the arresting Officer

testified that the radar evidence was

recorded in a different County, then

the Trial Court said,

"COURT: The radar is not the

basis of your arrest in Por-

tage County. It is the pace

clock not the radar." T.Trans.

p.24,25 = 2/28/86

This was the first Petitioner had heard

of this material fact,as it was not re-

vealed in her request for Discovery.

She moved to strike the radar evidence,

the Progecution objected. The Trial

(T.TR.p.25)

Court sustained the objection./This is

what ‘cnseeiaindlt eu ein she forgot to

call her two witnesses to testify to

their observation of the radar obstruc-

tions in the area where Ms. KELLEY's

speed was allegedly clocked at 73 mph.

She didn't even realize her oversight

until the trial was over and she was

on her way back home. The Appellate

Court contends that since Ms. KELLEY

o12<

scene

did not correct this at the trial level,

before appeal, that the Appellate Court

is now “precluded from reviewing the

matter on appeal." (p. 7G herein, A- 6)

Ms. KELLEY also raised the issue of

a quota system. The arresting Officer

denied knowledge of any such system (T.Tr.

p.-32, 1n.1,2). Ms. KELLEY introduced as

evidence 23 U.S.C.S, 154 (e) & (f£)(1)

through (5), which mandates a quota sys-

tem. If enough arrests aren't made,

the State loses funds. (App.Br.p.60 with

Argument at p.17-18). The Appellate Court

ruled that since it was put into effect

by the federal government, under the

commerce clause, it is not open to dis-

pute, and that ~~, not clear-

ly mandate a quota system, anyhow. AB-p.__

Appellate Court convoluted Ms. KELLEY's

argument that it is error to ascribe

credibility to a witness who gives con-

tradictory testimony.(p. #1! herein, A-_G )

Ms. KELLEY did not refer to the differ-

oi Se

cel

ence between the alleged radar clocked

speed (73 mph) and the paced speed (68-

70 mph). She referred to the fact that

the Officer testified that he locked his

radar in at 73 mph and yet checked his

radar,to verify the accuracy of his 68-

70 mph paced estimate. This was not

possible because the radar would still

have read "73",since it was locked in

73 mph

and/was what Ms. KELLEY observed when she

she checked it shortly after her arrest.

T.TR.P.8,9,15. The Officer testified:

"...at one point (I) even acti-

vated the radar to check the

speedometer against the radar."

T.TR.-p.28, (2/28/86-speeding)

How could he check a 68-70mph. pace esti-

against radar,

mate,/if the radar was locked in at 73

mph.?

The Appellate Court further concluded

that Ms. KELLEY's contention that she was

denied due process because the Trial

Court .refused to ‘rule’ on her consti-

tutional issues was ‘without merit’

“

because the Trial Court's action in

overruling her Motion To Dismiss was

a ‘ruling’ and thereby her claims of

unconstitutionality as to the 55 mph

were put to rest by the Trial Court.

fy we Court totally ignored her

claims of constitutional rights, to

which she was entitled to substance

in the Trial Court's ruling, not mere

‘form’. See: A-_@ at p. 68,69 6/83.

ciaime

The overruling of her/constitutional

rights, by the Trial Court with said

Court's admission that it would not

actually consider them, before she

even argued them to the Court and

would leave them to the Appellate Court

to pass upon,was not addressed in the

Appellate Opinion. Nor was her right of

"free passage’ under her common law

rights secured in the Ninth Amendment,

discussed by the Appellate Court. Said

right is also secured by the Ordinacce

of 1787, which, in 1789 was incorpora-

oie

iain caeenaemenieiiiiiiaaiaadial

ted into Article VIof the U.S.Constitu-

tion. Motion To Dismiss,p.4,5 also App.

in #1745 p.7,8.

Brief #1677,/The Appellate Court held

that the statute (0.R.C.4511.21(D) )

didn't contain any such element as a

demand for a corpus delecti.(p. 70,

herein A- G_) Constitutional law

was completely ignored.

Ms. KELLEY wrote a 2 page letter and

affidavit

/to the Ohio Registrar of Motor Vehicles,

against licensing

stating her position/and the law in supp-

ort, including the 14th Amend., U.S.Const.

in 1982 (Ex. 7 = Motion To Dismiss-p.29)

There was no indication whatever from the

response by Staff Attorney, W.W.Holmes,

that Petitioner was wrong. (Ex.8 - Motion

To Dismiss - p.32), therefore when her

T=

license expired in July 1985, she decided

not to renew it. Petitioner believes that

failure of the Staff Attorney to NOTICE

Ms. KELLEY that she was wrong,was a denial

of due process. The Appellate Court im-

permissably

/broadened Ms. KELLEY's argument to include

everybody. It held:

“Further, we know of no constitu-

tional, statutory, or common law

duty on the part of the state to

notify members of the public in-

dividually, that certain conduct

on their part will subject them to

sanction. Hence we hold this stat-

tute (4507.02-licensing) to be con-

stitutional in this regard." p. 54

herein - A- 6.

Petitioner's argument did not address the

constitutionality of aaid statute, but a

denial of due process,from the Motor Ve-

hicle Bureau itself, when contacted by her.

In answer to Petitioner's argument

that driving is a fundamental constitu-

tional right, based upon lst, 5th, 9th

& 14th Amendments the Appellate Court re-

sponded with an argument which blurs the

line between private use and public use,

nite

failing to differentiate between the two.

p. 97 herein (A- 6 ).

Ms. KELLEY -wae—on—her-—way to—ehurech

and was prevented from going to church,

as a letter by her minister showed. (Mo-

tion To Dismiss p.28 - Ex.6)

The Appellate Court cited the denial

to a minister of a license which he

needed in his work and equated that the

right to deny,implied the right to "pen-

alize for failure to obtain." p./O0O, here-

in (A-_@_), and found the assignment of

error without merit.

Lastly, in the license sehal ) whisk

Petitioner had originally asked and been

granted a jury trial, she was forced to

waive this right when the Trial Court

made it very clear to her that the jury

could only judge the fact, not the law

and that if she wanted to argue the law

she would have to have a Court Trial,

which she did.

-18-

Immediately preceding the Court Trial,

Ms. KELLEY orally raised and pled a Re-

newed Motion To Dismiss For Inability to

Obtain A Fair Trialbased upon the ground

that she did have a constitutional right

to argue the law, to the. jury, as well

as the fact. T.Tr.-p.l to 12 -5/20/86

She submitted to the Court as Exhibit A,

an exerpt from en trial of

U.$.Supreme Court Justice Samuel Chase,

pub. by Da Capo Press, N.Y.C. in 1970.

T.Tr. supra - p.7

(Trial Ex. A),

The Chase transcript/was relied upon

at p.12,13 of her Appellate Brief, along

which

with other sources / support her argu-

ment that she had a constitutional right

to argue the law to the jury and they

had a constitutional right to hear the

law argued.

Also attached to her Appellate Open-

ing Brief were exerpts from the Diary of

John Adams (p.27 - A-5) proving the intent

of the Founding Fathers on jury nullifi-

1%

tion.

",...is it not an Absurdity to

suppose that the Law would oblige

them to find a Verdict according

to the Direction of the Court,

against their own opinion, Judgment

and Conscience.

It is not only his right but his

Duty in that Case to find the Verdict

according to his own best understand-

ing, Judgment and Conscience, tho in

Direct opposition to the Direction

of the Court." Legal Papers of John

Adams, p. 230 dated Feb. 12, 1771

T.Tr. supra - p.29

Also included in the Appellate Brief as

A-6, at p.30 to 34 was an article from

the Law Journal, Case & Comment, March/

April, 1975 by Russell C. Richardson, en-

titled, “Jury Nullification: Justice or

Anarchy?" and other persuasive, pertinent

law and argument, NONE of which is men-

tioned in the Appellate Opinion, even

though 3% pages were devoted to this

Assignment #3 in her Appellate Brief.

pitiuadle ebekitece Court quoted Ohio

Jurisprudence 2d and a Ohio Supreme Court

case from 1928 (p./o¥herein, A-_6 ) and

called Petitioner arguments "provocative"

=20-

and “novel”, admitted that in our early

history juries may have had “greater in-

volvement in determining the law of the

pe

case",/Ohio changed all of that, "many

(ore

years ago".(p.j03,herein A- 6 )

The Appellate Court also accused Ms.

KELLEY of using quotes "out of context"

but gave no examples. She does not believe

she used any quotes out of context, so

as to distort their meaning. (p./o3

herein)

/ Said Court then decided, that this 3d

Assignment was lacking in merit.

REASONS FOR GRANTING THE WRIT

As To Argument I: State Court in conflict

The Municipal Court of first instance,

declined to give any opinion as to

whether federal rights were or were not

denied Petitioner, rather leaving that

to the Appellate Court. (See: STATEMENT

OF THE CASE herein at p. 7, 5 ¥7.

But the Appellate Court never didadd-

ress two of the constitutional issues

often

raised, convoluted others, argued stat-

ute law above constitutional law and

found all her arguments either "without

merit" or "not well taken". The trial

Court disagreed. The Trial Court said,

2

“Either way in this case/, the

issue probably ought to go up, no

matter how the Court finds."

MH-1/7/86 ~ p.14.

The Ohio State Supreme Court dismisse-

"sua sponte” A- ‘t herein at p.

60 indicating it did not

,

believe there were any constitutional

issues involved. But again the Muni-

cipal Court seems to have differed. Re-

garding the "no license" charge, it

commented:

"Well, you have made some in-

teresting arguments and obviously

you've ached very hard at the

preparation of this material. I

appreciate that and I'm not un-

sympathetic with a lot of the arg-

uments that you have made. I think

fn. 2 - Case R85 TRD 15065 S which in

Cluded both charges in the Municipal

Court.

, -22-

a lot of the things you say make

good sense and it’s always a

pleasure to see = exercising

their constitutional rights etc..."

T.Tr. =- 5/20/86 - p.60

The Trial Court further commented at the

Motions Hearing that,

",..some of the questions you

have raised as to the no opera-

tor's license are —s fairly sub-

— issues." MH - 1/7/86 -

P

The State courts have appeared to settle

an

/important question of federal law,as to

Petitioner's substantive 14th Amendment

right to due process in the State Court

of first instance, as to the constitu-

tional issues which she raised there,

in conflict with applicable decisions of

the U.S.Supreme Court. Petitioner's due

argument

process / was raised as to both cases,

on appeal, but

in both Courts /was deemed to be without

wines See: App. Op.herein, A-6, -p. 66 +

f

Both the Robb, and Norris cases in-

fra, support Ms. KELLEY's claim of due

process.

«29

Petitioner argues that ske was en-

titled to a meaningful consideration of

her timely raised constitutional defenses,

in the court of first instance.

"A State court of mage juris-

diction...may consistently with ex-

isting federal legislation, determine

cases at law or equity, arising under

the Constitution or laws of the United

States, or involving rights dependent

upon such constitution or laws. Upon

State courts, ey with the courts

of the Union rests the obligation to

guard, enforce and Lag every right

granted or secured by the Constitution

of the United States and the laws made

in pursuance thereof, whenever those

rights are involved in an suit or

roceedingbefore then." v. Conn-

olly, (1884) 111 U.S. 624,638

t

ed in App. Brief No. 1677,p.6

Then there is the Norris case, which is

on point in principle, even though it

deals with a different constitutional

right (systematic exclusion from jury, of

Defendant's racial group). The Court said:

"That the question is one of fact

does not relieve us of the duty to

determine whether in truth a federal

right has been denied. When a federal

right has been specially set up and

claimed in a state court, it is our

province to inquirehot merely whether

}

-24-

it was denied in express terms but

also whether it was denied in sub-

stance and effect. If this requires

an examination of evidence, that ex-

amination must be made. Otherwise,

review by this Court would fail of

its purpose in safeguarding consti-

tutional rights." Norris v. Alabama,

(1935) 294 U.S. 587, 589-90, °° ~=~—

The Appellate Court held that the over-

ruling of Petitioner's Motion To Dismiss

was "responsive" (App. Opinion A-_6 ,p.

67 _ herein) and that Ms. KELLEY ,

"...tacitly admitted...in the

very language employed by her in

her second Assignment of Error

where she expressly states that

the trial court erred in denying

Ms. Kelly's motion to dismiss as

to 4507.02." " (App. Opinion supra,

p. $3)

Obviously, Ms. KELLEY was referring to a

denial without substance.

If it is the practice of the Ohio Ju-

diciary to deny a meaningful hearing of

constitutional issues in ‘lower’ courts

so as to reserve the making of ‘policy'

for the Appellate Courts, then it would

appear that denial of due process is the

‘standard’ of Ohio courts. (Also see:

a%Se

Motions Hearing Transcript 1/7/86 at p.

1l to 15 for Petitioner's objections and

Trial Court's dictum). Such '‘policy'

violates the Fourteenth Amendment, U.S.

Constitution, under due process clause.

The six constitutional issues remain-

ing from said Motion are:

O.R.C. 4511.21(D) = 55mph speed limit

1. The State Appellate Court has de-

cided, and the State Supreme Court let

stand, an important question of federal

law,which Petitioner believes has not

been settled by this Court, on the

grounds raised by Petitioner.

Petitioner raised the Tenth Amend-

ment and State sovereignty, 16a Am. Jur.

2d, sec. 360 et seq. re. State's sov-

ereignty to determine most police matt-

ers, five U.S.Supreme Court cases with

java two U.S.District Court

cases and one N.Y.Supreme Court case

also with supporting arguments.

Appellate Court's answer was,

"Notwithstanding appellant's

assertions to the contrary, the

power of the federal government

under the commerce clause of the

United States Constitution, to

enact a speed limit law, and to

effect any programs to aid in

the enforcement of this law, is

well established and not subject

to dispute.” App. Op. (A-_6&

herein at p. 7#-

But a statute valid as to one set of

facts may be invalid as to another.

Kansas City So.R.Ry. Co. v. Anderson,

(1914), 233 U.S. 325.

The 55 mph limit is unconstitutional,

because Congress exceeded their author-

ity under the commerce clause and usurped

power, by making an ‘end run’ around the

Tenth Amendment, so as to accomplish in-

directly what they cannot do directly.

“This Court has never doubted

thatthere are limits upon the power

of Congress to override State sover-

eignty, even when exercising its

otherwise plenary powers to tax or

to regulate commerce which are con-

ferred by Art. I of the Constitution.”

Maryland v. Wirtz, (1968) 392 U.S.

, ; ee -p.7

-27-

eee

In 1975 the U.S.Supreme Court recognized,

"While the Tenth Amendment has been

characterized as a ‘truism'...(cites

om.) it is not without significance.

The Amendment expressly declares the

constitutional policy that Congress

may not exercise power in a fashion

that airs the States’ integrity or

their ability to function effectively

in a federal systen.™ Fry v. U.S.,

9 421 U.S. 542, 54/; from MD-p.

If Congress could regulate any indiv-

idual activity merely by exercising the

‘power of the purse’, State sovereignty

would be a myth! See MD-p.6 to 9.

Ours is a government of limited powers

and that includes the commerce clause.

(Also see: App. Brief #1677-p.3 & 8)

An anology may be made, to the

extent of Congress’ power over the

waterways.

"It may be that all waterways

untimately connect with the sea, or

with other, larger waterways, that

are undoubtedly used by shippers in

interstate commerce, but Congress

cannot exercise r over all water-

ways. In Grand River Dam Authorit

v. Going, (I939) 29 F. Supp. T1b- the

United Rates District Court for the

District of Oklahoma noted that the

federal government's power over wa-

terways stops at the tributaries of

navigable streams." MD-p.8

If this and other cases cited by Peti-

tioner properly state the law, it can

be said that it is not within the power

of Congress to enact boating laws that

would apply to all rivers creeks and

streams in the country. Neither can

they do so with highways, private roads

such as the Ohio Turnpike etc. This is

beyond the delegated powers of Congress

and is limited by the Tenth Amendment.

2. IF constitutional, then the 55

mph speed limit is now void. The App-

ellate Courtddecided this federal ques-

tion in conflict with an applicable

decision of this Court, Nashville C. &

St. Louis Ry, infra.

Petitioner believes that 23 U.S.C.154

(a) has been rendered invalid because

the conditions for which it was passed

i.e.a fuel shortage, no longer existed

-29-

Dee

at the time of Ms. KELLEY's arrest. It

public

was /knowledge, that the entire nation

was in the middle of a fuel ‘glut’.

There was so much fuel, they were beginn-

ing to have ‘storage’ problems.

"A statute valid when enacted

may become invalid by change in the

conditions to which it is applied."

Nashville C. & St. Louis R

ters, 5

-p.

The Appellate Court argues (A-_ G ,p.¢7

herein) that because Petitioner failed

to introduce,

the

",..-evidence that/challenged

law is unrelated to the public

health, safety, welfare or morals.”

A- @ , supra.

that she has not met her burden of prov-

ing unconstitutionality. But said Court

completely ignored the U.S.Supreme Court

holding, about the intent of the law in

the Nashville case, supra.

Further, if the 55 mph limit was

passed for ‘safety and health’ are we

Ohio

to assume then, that the former/speed

limit of 70 mph was an endangerment to

-30-

"safety and health’ for all the years it

was enforced, prior to the 55 mph? If

so, that would make Ohio culpable in

all property damage, injuries and deaths

due to contributory negligence in ever

allowing a 70 mph speed limit.

Petitioner also draws this Court's

attention to an article written after

the Ohio speed limit was raised to 65

mph (bypermission of Congress). It reads:

"By PAULINE THOMA

Staff Writer

Contrary to predictions, the

number of highway fatalities in

Ohio has not increased substanti-

ally since the speed limit on rural

interstate highways was boosted to

65 mph in July.

One state official who had warned

of more deaths was William N. Deni-

han, director of the Ohio Depart-

ment of Highway Safety. He said

statistics from the State Highway

Patrol showed no change in the num-

ber of Fatalities on rural interstate

highways." The Plain Dealer - Cleveland

Ohio - 11/15787; See Petitioner's

Me. of Juris. to Ohio Sup. Ct. at p.

65

Neither health, safety, welfare or morals

had anything to do with the 55 mph. speed

oSie

limit. If ‘public safety considerations'

was the basis of the law, then it was

irresponsible to raise the speed limit

to 65 mph. Petitioner argues that this

‘safety, health. etc. are false stan-

dards in this particular issue. There

is no question that the purpose of the

55 mph limit was to conserve fuel.

When that situation changed and a gas

glut existed, the law became void but

¥ s retained,because such a speed limit

proved to be very helpful in the raising

of revenue. Money, not safety, was the

purpose of maintaining a law for which

there was no longer any purpose.

If the 55 leas wad then either

there was no speed limit at the time of

Ms. KELLEY's arrest - or the limit re-

verted to the former limit of 70 mph,

in which case she was deprived of her

property, the $50.00 fine, unfairly, by

canis: Fie police power and the process

of the court to enhance the treasuries

-32-

=

of Portage County and of Ohio. (See:MD-

PY PED.

"The police power is subject

to the constitutional limitation

mei ae oer ceuatly * Meee.

supra at p.415; See MD-p.3; AB-p.9

The enforcement of a 55 mph speed limit

that was, in fact, void, was an arbi-

and unconstitutional

trary, unreasonable / exerceise,of the

police power of the State.

3.The defense of no due process

based upon no mens rea or corpus dececti

in the speeding charge was not addressed

by the Appellate Court.

Petitioner argued it in her Motion

to Dismiss at p.4 & 5 and in her Appellate

Brief, it was inclusive in her First Assi-

gnment of Error at p.l & 5.

One of the original safeguards of

due process in criminal cases, was the

necessity of criminal intent and a cor-

pus delecti.

"The term ‘due process'cannot be

-33-

;

3

3

re-defined by the State from its

original meaning, simply because

it inds that meaning ‘inconven-

i for a victimless crime. MD-

The doctrine of ‘mala prohibita’

could not possibly epply here because

it is the result of a statute and a

statute cannot overrule constitutional

law. Said doctrine, violates Petitioner's

unwritten right to proceed unimpeded, un-

less there is injury or damage to some-

one or their property.This right, which

is inalienable, from the Sovereign of °

the Universe, is protected in the Ninth

Amendment Fe a part of Petitioner's lib-

erty under the Fifth and Fourteenth Amend-

ments of the U.S.Constitution. It also

infringes her First Amendment right to

travel. MD-p.4. A corpus delecti requires,

"..-first the occurance of the

specific kind of injury or loss;

secondly, somebody's criminality

as the source of the loss." 7 Wig-

more, Evidence, sec.2072, 3d am

MD-p.4

To require corpus delecti and mens rea in

alee

some crimes and not in others,smacks of

a denial of equal protection of the law.

Motorists aren't given the same protec-

alleged |

tion as other/criminals.

Speeding laws are the only ‘crimes’

that profit government to a _ large de-

gree, No doubt that is why there are

hundreds of officers on ‘traffic detail'

while only very few, by comparison, are

assigned to auto theft, fraud, rape, etc.

which are the real crimes. |

The Bill of Rights was also to pro- .

tect us from some of the inequities of

the common law, such as'mala prohibita’.

O.R.C.4507.02 - No valid license.

4, The ‘no due process’ argument was

also made in defense of this charge and

Petitioner. incorporates herein,the above

Defense #3,to avoid repetition.

The Appellate Court did address this

defense at A-_6 ,p. ¥9-7/_, herein.

Also see MD-p.16-17; AB- #1745 - p.7-8

i

:

4

%

;

Petitioner believes that the denial

of a corpus delecti and mens rea as nece-

ssary components of her alleged crime,

violated her unwritten common law rights

under the Ninth Amendment and was in

conflict with this Court's recognition

of same, in Griswold v. Conn., (1965)

381 U.S.479, in both charges, #3 and #4

herein.

5.Driving is a right, not a 'privil-

ege’. Petitioner believes that the State

Courts decided this question in con-

flict with applicable decisions of this

Court, bearing on Petitioner's First,

Fifth, Ninth and Fourteenth Amendment

rights.

There is a difference between private

and commercial use of the public high-

ways. The State may indeed license such

use for profit, but it may not license

private parties to go about their ordin-

ary errands and private ov. siness.

-36-

State denied

In essence, the/ Petitioner has a First

Ghag

Amendment right to travel andsit is also

part of her ‘liberty’ under the Fifth Am-

endment to the U.S.Constitution. She be-

lieves this right is also protected by

the Ninth Amendment which protects her

unwritten common-law rights. Griswold,

supra. (See also J.

Goldberg's consenting opinion which elab-

orates upon unwritten rights.)

"The right of a citizen to travel

upon the public highways and to trans-

port his property thereon, in the or-

dinary course of life and business,

is a COMMON LAW RIGHT, which he has

under his right to enjoy life and lib-

erty, to acquire and possess property

and to pursue happiness and safety.

It includes the right in so doing,

to use the ordinary and usual convey-

ancesof the day and under existing

modes of travel, INCLUDES THE RIGHT to

drive a horsedrawn carriage or wagon

thereon, or TO OPERATE AN AUTOMOBILE

thereon, for the usual and ordinary

purpose of life and business. It is

NOT a mere PRIVILEGE, like the priv-

Tlege of moving a house in the street,

or of operating a business stand in

the street, or of transporting persons

or property for hire along the street,

which a city may permit or prohibit at

will." Smith v, Thompson, (1930) 154

$.5. 579; MD-p.15

a. A

The right to travel is inherent in

the First Amendment, for it is vital

to the operation of those rights.

Ms. KELLEY was denied the right to

the free exercise of her religion

because she didn’t have a government

‘license’ to go to church.That is

exactly what licensing amounts to.

To take an inalienable right,

which government was established to

protect, call it a ‘privilege’ and

license it,is unconstitutional.

"A license is sopeuetesiy the

granting of a special privil-

ege to one or more persons, not

enjoyed by the citizens generally,

or, at least not enjoyed by a

class of citizens to which the

license belongs. A COMMON Bscut

is NOT THE TIO

ENSE, er v. tbdeck,

672,674; 4&4 Ohio 539; HD-p. 14;

AB-p.9; See “i Op. .A=_ 5 _»P-

erein

The public safety can be well protected

by certification which does not bear the

legal implications of ‘licensing’. Said

certification can, and should, be done

-38-

by private agencies, such as the Ameri-

can Automobile Assoc. (AAA) and others.

Going to church, a person's job,

grocery shopping, voting, visiting

friends, going to the doctor or dentist,

going to a public library, to public

meetings etc. are all dependent upon a

‘license’ from government, which can be

revoked for receiving a certain number

of traffic tickets according to ‘govern-

ment standards’ which do not necessarily

involve any corpus delecti, whatever.

It is an awesome power. It is the right

to revoke ALL of our constitutional

rights. This should not be. Another

can and

way/must be found, to protect the pub-

lic safety.

Before automobiles, we had horses.

There were millions of them and they

killed lots of people, but the right to

ride a horse and who was capable was

never licensed and the decision was left

to the individual or the family, because

-39-

ee

eee a

it was they who were liable for any danm-

age they caused. (See AB-p.9-10; MD-p.10-

11)

As matters stand now, Americans are

really under nationwide ‘house arrest’

unless and until, they apply for and re-

ceive government permission to leave their

neighborhoods via a driver's license.

Neither a car, an adult or child, or even

a dog can lawfully leave the home without

government permission, i.e. a ‘license’.

Licensing is simply out of control.

"The right to travel is a part

of the ‘liberty’ of which the citi-

zen cannot be deprived without due

process of law under the Fifth Anm-

endment. ... In Anglo-Saxon law,

that right was emerging as early

as Magna Carta." Kent v. Dulles,

Pp.

Truly, a driver's license can form

the basis of a government dossier because

either a social security number or a

birthdate can give the police entree to

all kinds of information which should

o40e

not be in their hands. (See T.Tr.- 5/20/

86 at p.53- 1n.8 to p.54- 1n.16;)

Even the Trial Court referred to the

driver's license as an “information re-

trieval system" citing such a system as

an aid to the police. T.Tr.- 5/20/86-p.

62, 1n.18-20. Unfortunately, it can ‘re-

trieve' more than driver performance. It

is an invaluable tool in a police state.

The driver's license is destructive of

our privacy and an infringement upon our

liberty.

There is no due process whatever,

ae to confining a person to their home

or/walking distance of it, until they get

a driver's license. This is a depriva-

tion of our liberty.

6. The claim and exercise of a consti-

tutional right, cannot be converted into

a crime.MD-p.1l1 to 13; AB - p.1,#1,5 to 9.

Because this defense had no sub-

stantive ruling in the Municipal Court,

was not specifically dealt with by the

effec

Appellate Court, (not mentioned in the

App. Op. A-6,p.¢2a herein) nor by the

Ohio Supreme Court, Petitioner's griev-

ance in this matter has actually not

been redressed by the State Courts and

therefore she believes she has been de-

nied due process of law in this de-

fense.

Ms. Kelley's claim and exercise of a

constitutional right was converted into

a crime. The Ohio Statute was given pre-

cedence over constitutional law, under

which she was driving, That ‘preference’

violated the Fourteenth Amendment, U.S.C.

“The claim and exercise of a

constitutional right cannot be

converted into a crime.” Miller

, 230 F.486,489; also aee:

oe AB#1745 at et T.Tr.-

p.45, 1ln.I to p.50, 1n.11

Because Petitioner was driving under the

protection of her constitutional rights,

as to the First, Fifth, Ninth and Eour-

teenth Amendments of the U.5,Constitu-

tion, she was not subject to the penal-

-42<

ties of statute law. Jurisdiction could

personal

attach only upon property damage or/injury.

“There can be no sanction or

penalty imposed upon one because

of his exercise of constitutional

rights." Sherar v. Cullen, (1973)

481 F.2d 926.

Both the Miller and Sherar cases were sub-

mitted to the Trial Court,in full,as Ex-

hibits. (Ms. KELLEY's Exhibits A thru F

were admitted into evidence. T.Tr.- 5/20/

86 = p.57)

Ms. KELLEY was a licensed driver and

did know the rules of the road. That she

did not re-new her driver's ‘license’ in

July, 1985, did not diminish her knowledge

of driving. (See: A-7 & A-§ herein at p.

1& & 107).

Petitioner did not refuse to identi-

fy herself and presented her constitu-

tional claims to the arresting officer,

when she was first stopped. (See: T.Tr.

5/20/86 at p.19 to 22; MD-p.13.Also A-7

& A-g herein, p.JOG & 107)

Further, Petitioner believes that

-43-

O.R.C,. 4507.02 is void for vagueness be-

cause it says in paragraph #l that no per-

son shall operate a motor vehicle,

"...unless such person, upon

application, has been licensed

as an operator. ..."

Paragraph #2 says,

"No person shall permit the op-

eration of a motor vehicle upon any

public or private property...know-

ing such operator does not have a

valid license as an operator...”

#1 is written in past tense. Ms. KELLEY

has been licensed. But #2 is written in

present tense, “does not have..." These

paragraphs are not consistent but seem

almost contradictory. See MD-p.13; AB-

p.ll. Ms. KELLEY "has been” licensed

but did not”have"a license when stopped.

RE-NEWED MOTION TO DISMISS

Defendant believes that the denial of

her right to argue the law, as well as

the fact to the jury, confirmed by the

State courts, conflicted with the orig-

inal intent of the founding fathers as

to the meaning of ‘due process! con-

firmed by the Chase franscript. Tr. Ex.

A. Petitioner believes that she was de-

/a fair trial, by jury, which she desired,

but so

/her case was one of only law,/she had no

choice but to opt for a Court Trial.

Petitioner's STATEMENT OF THE CASE

sets this forth in some detail. See: p.

/79-2/ herein.

Ms. KELLEY only wishes to add that

the government itself, argued in the in-

peachment case of Mr. J. Chase,that it

was Mr. Fried's/RIGHT to ergue the law to

the jury and he was denied that right by

Mr. J. Chase, who agreed with the govern-

ment that it was Defendant Fried's con-

stitutional right and that he would never

deprive him of it.(J. Chase was acquitted)

In Petitioner's Exhibit A, a partial

transcript of the Chase trial, ARTICLE I

charges that J. Chase conducted himself

"...in a manner highly arbitrary

oppressive and unjust, viz.

2.'In restricting counsel for the

o45-

said Fries...from citing certain stat-

utes of the United States, which they

deemed illustrative of their positions,

upon which they intended to rest the

defence of their client:

In debarring the prisoner from his

CONSTITUTIONAL PRIVILEGE of addressing

the jury (through his counsel) on the

law, as well as on the fact...endeav-

oring to wrest from the jury their IN-

DISPUTABLE RIGHT to hear argument, and

determine upon the question of law, as

well as the question of fact,involved

in the verdict which they were re

quired to give: ... " Tr. Ex. A,p.l

The government further argued that to deny

this constitutional right was"dangerous to

our liberties", was a “disgrace of the

character of the American bench, in manifest

violation of law and iistkce*, feat such a

practice was "in open contempt of the rights

of juries as well as defendants. The govern-

ment argued throughout, about the indisput-

able right of Mr. Fries to argue the law to

his jury. J. Chase was acquitted because he

proved he did not do this grave injustice.

When Thomas Jefferson complained in

the Declaration of Independence about the

colonists being deprived: of certain bene-

etka

fits of trial by jury, he was talking in

part, about a defendant's right to argue

the law to the jury. Due process MEANS the

right to argue the law to the jury. With-

out this right, there is no due process.

(The Appellate Court was not happy about

Petitioner's arguments on this ground.)

See: T.Tr.- 5/20/86 - p.1,1n.20 to p.12,

1n.12;748 - p.12 to 19; App. Op., A-_@_

herein at p. /00-/05,.

If it was known and admitted in 1805,

and before,that it was a constitutional

right to argue the law to the jury, how

could Sparf v. U.S.,(1895) 156 U.S.1 amend

the Constitution? Why have the state and

federal judiciaries tolerated this usur-

pation for so long? Isn't it time for a

re-consideration of the Sparf case?

fn.3 - CORRECTION: T.Tr. for 5/20/86 = p.1ll

Badly garbled - at 1n.7 mis-spelled Judge

Bazelon's name and quoted Ms. K. as saying

he was not a = judge, when she said he

was a good judge, even brilliant.

ae

as eont:

ta i

ARGUMENT II

At the speeding trial, Feburary 28,

1986, it was revealed for the first time

that Ms. KELLEY's car was recorded by ra-

dar in one county and was ‘paced’ in an-

other county. This is gone over in the

STATEMENT OF THE CASE herein at p. //-/2,

Petitioner believes she was denied a

fair trial on this account,in violation

of her Fifth and Fourteenth Amendment right

right to due process.

She was predjudiced by this because

she did not properly prepare to meet the

evidence,

*‘pacing'/but concentrated rather,on the

radar evidence. Ms. KELLEY had two wit-

nesses to testify as to the multiple ob-

structions to the accuracy of a radar read-

ing, but was so surprised by the Judge's

statement that it wasn't the cause of her

arrest and then his refusal to strike the

radar evidence and testimony of the arrest-

ing officer she totally forgot to call

said witnesses. She believes this denied

her

/a fair trial, denying her due process of

law. 5th Am. & 14th Am., U.S.Const. See:

T.Tr.- 2/28/86 - p. 25,26

In addition, the radar is a fatally

flawed system, since there is no way a

motorist can verify that the ‘locked in

speed’ they see,was actually theirs. It

could be left over from another motorist.

It rests only on the Officer's word and if

he is under a quota system, he may be

tempted to cheat on a'slow'day.T.Tr.-2/

28/86 - p.26.

ARGUMENT III

Petitioner believes that 23 U.S.C.154

(£)(5) mandates a quota system. (See T.Tr.-

2/28/86-p.34 to 36). The Appellate Court

disagrees.See App. Op. A- & ,p 79-80 here-

on.

If it does mandate a quota system,

it is unfair, denying due process, creat-

ing an

/incentive for false arrests, through the

threat to withhold federal highway funds

if there aren't a sufficient number of

"speeders' caught. Again, this is a de-

nial of due process by its inherent un-

fairness. 5th Am. & 14th Am., U.S.Const.

Coupled with the ‘fatally flawed'

radar system, the leeway here for false

charges, in order to obtain federal

funds is far too great.

ARGUMENT IV

The Highway Patrol Officer's credi-

bility is on the line because he testified

that he ‘checked’ his ‘pace clock’ which

he testified was between 68 mph and 70 mph,

with the radar which was locked in at 73

mph. and 73mph is the reading that Ms.

Kelley observed when she asked to look at

it. HOW could he check a 68-70 mph speed

with a locked in speed of 73 and claim

they matched?See T.Tr. -, 2/28/86 - p.28

"I would say I probably looked

down three or four times and at one

point even activated the radar to

check the speedometer against the

radar." Officer's testimony T.Tr.

supra p.28 4 areas

This also goes to a denial of due pro-

_cess under Petitioner's Fifth and Four-

teenth Amendment rights.

CONCLUSION

For these reasons, a Writ of Certi-

orari should issue, to review the judg-

ment and opinion of the Ohio Court of

Appeals for the Eleventh District, con-

firmed by the Ohio Supreme Court.

DATED: Ligunl Uf ,1988.

Respectfully submitted,

nike peer In Pro Se

6605 Sutton Dr.

N. Olmsted, Ohio

#44070

(216) 779-9954

APPENDIX

@$2<

CONSTITUTIONAL PROVISIONS

AND STATUTES =—S

U.S.CONSTITUTION

Article VI (pertinent part only)

All...Engagements entered into,

before the Adoption of this Con-

stitution, shall be as valid

against the United States under

this Constitution, as under the

Confederation. ...

lst Amendment

Congress shall make no law re-

specting an establishment of re-

ligion, or prohibiting the free

exercise thereof; or abridging

freedom of speech, or of the

press; or the right of the people

to peaceably to assemble, and to

petition the Government for a re-

dress of grievances.

5th Amendment (pertinent part only)

No person shall be...deprdived of

..-Liberty or property, without

due process of law, --- A-\

aBSa

9th Amendment

The enumeration in the Constitu-

tion of certain rights, shall not

be construed to deny or disparage

others retained by the people.

10th Amendment

The powers not delegated to the

United States by the Constitution,

nor prohibited to it by the States,

are reserved to the States respec-

tively, or to the people.

14th Amendment (pertinent part only)

-»-No State shall make or enforce

any law which shall abridge the

privileges or immunities of citi-

zens of the United States; nor

shall any State deprive any per-

son of...liberty, or property,

without due process of law;...

Ordinance of 1787 (pertinent part

only)

§14 It is hereby ordained and de-

clared, by the authority afore-

-54-

jurisdiction in excess of fifty-

five miles per hour,...

(£)(GS) (pertinent part only)

For the twelveemonth period ending

September 30, 1983 and for each

succeeding twelve-month period

thereafter, if the data submitted

by a State pursuant to subsection

(c) of this section for that year

show the percentage of motor ve-

hicles exceeding fifty-five miles

per hour is greater than 30 per

centum, the Secretary shall reduce

the State's approtionment of Fed-

eral-aid highway funds under each

of sections 104(b)(1), 104(b) (2)

and 104(b)(6) of this title (23

usCcU 8104(b)(1),(2) and (6) in an

aggregate amount of up to 10 per

centum of the amount to be appor-

tioned for the fiscal year ending

September 30, 1985 and for each

succeeding fiscal year thereafter.

-54a-

said, that the following articles

shall be considered as articles

of compact, between the original

States and the people and States

in said territory, and forever

remain unalterable, unless by

common consent, to wit:

ARTICLE IV (pertinent part only)

The navigable waters leading into

the Mississippi and Saint Lawrence,

and the carrying places between

the same, shall be common highways,

and forever free...without any tax

impost or duty therefore.

U.S.STATUTES

23 U.S.C. 154{a) (Pertinent part

only)

National iaximum speed limit - The

Secretary of Transportation shall

not approve any project under sec-

tion 106 (23.USCS 8106)in any State

which has(1) a maximum speed limit

on any public highway within its

-55-

OHIO STATUTES

4507.02 (pertinent part only)

License required as operator or

chauffeur; prohibition against un-

licensed operation on private prop-

erty

No person,except those expressly

exempted under sections 4507.03,

4507.04, and 4507.05 of the Revised

Code shall operate any motor vehicle

upon a highway or any public or pri-

vate property used by the public for

purposes of vehicular travel or park-

ing in this state unless such person,

upon application, has been licensed

as an operator or chauffeur by the

registrar of motor vehicles under sec-

tions 4507.01 to 4507.39, inclusive,

of the Revised Code.

No person shall permit the opera-

tion of a motor vehicle upon any pub-

lic or private property used by the

public for purposes of vehicular

travel or parking knowing such op-

erator does not have a valid license,

as an operator or chauffeur, issued

to such operator by the registrar of

motor vehicles under sections 4507.01

to 4507.39, inclusive, of the Rev-

ised Code.

4511.21 Speed limit modifications

(D) No person shall operate a

motor vehicle, trackless trolley, or

streetcar upon the streets or high-

ways at a speed exceeding fifty-five

miles per hour.

THE SUPREME COURT OF OHIO

COLUMBUS

1988 TERM

To wit: June 15, 1988

State of Ohio, :

Appellee, : Case No. 87-1665

Vv. : REHEARING ENTRY

Claire Kelley, : (Portage County)

Appellant. :

IT IS ORDERED by the Court that rehear-

ing in this case be, and the same is here-

by, denied.

THOMAS J. MOYER

Chief Justice

I, Marcia J. Mengel, Clerk of the Su-

preme Court of Ohio, do hereby certify

that the foregoing order was correctly

copied from the records of said Court,

to wit, from the Journal.

IN WITNESS WHEREOF, I have hereunto

subscribed my name and affixed the seal

of said Supreme Court, on this 15th day

of June, 1988. MARCIA MENGEL CLERK

A-2

=$he

THE SUPREME COURT OF OHIO

COLUMBUS

1988 TERM

To wit: June 15, 1988

State of Ohio, :

Appellee, : Case No. 87-1666

Vv. : REHEARING ENTRY

Claire Kelley, : (Portage County)

Appellant. :

IT IS ORDERED by the Court that rehear-

ing in this case be, and the same is here-

by, denied.

THOMAS J. MOYER

ef Justice

I, Marcia J. Mengel, Clerk of the Su-

preme Court of Ohio, do hereby certify

that the foregoing order was correctly

copied from the records of said Court,

to wit, from the Journal.

IN WITNESS WHEREOF, I have hereunto

subscribed my name and affixed the seal

of said Supreme Court, on this 15th day

of June, 1988. MARCIA MENGEL CLERK

A-3

«Ste

THE SUPREME COURT OF OHIO

COLUMBUS

1988 TERM

To wit: May 11, 1988

State of Ohio, :

Appellee, : Case Nos. 87-1665

and 87-1666

Vv.

Claire Kelley, : ENTRY

Appellant. :

These causes are pending before the

Court on the filing of motions for

leave to appeal from the Court of

Appeals for Portage County and as

appeals as of right from said Court.

Upon consideration thereof,

IT IS ORDERED by the Court, sua

sponte, that these causes be and the

same are hereby, dismissed.

COSTS: Motion Fee, $20.00, paid by

Claire Kelley

COSTS: Motion Fee, $20.00, paid by

Claire Kelley

A-4 THOMAS J. MOYER

Chief Justice

aie

Ne tle et A eT DL Sts OME, bm bai Mammy

Pease th

FILED

COURT OF APPEALS

AUG 3 9 22 AM ’87

IN THE COURT OF APPEALS

DELORES REED, CLERK

ELEVENTH DISTRICT

STATE OF OHIO )

SS.

COUNTY OF PORTAGE )

STATE OF QHIO ’

Plaintiff—Appel lee

~ wa «

CLAIRE KELLEY ’

Defendant—Appe! lant

JUDGMENT ENTRY

CASE NO. 1677/1745

For the reasons stated in the

opinion of this court, it fs the

judgment and order of this court that

the judgment of the trial court is

affirmed.

DONALD R. FORD

PRESIDING JUDGE

FOR THE COURT

JRIS PG 286 A- t

-6l-

FILED

COURT OF APPEALS

AUG 3 9 22 AM ’87

DELORES REED

CLERK

COURT OF APPEALS

ELEVENTH DISTRICT

PORTAGE COUNTY

JUOGES

HON. DONALD R. FORD, P.J.

HON. ROBERT E. COOK, J.

HON. JUDITH A. CHRISTLEY,J.

STATE OF OHIO ’

Plaintiff—-Appel lee

CLAIRE KELLEY :

Defendant—Appe! lant

CASE NOS. 1677 & 1745

OP IN ION

JUL 31 1987

CHARACTER OF PROCEEDINGS:

Criminal Appeal from Portage

County Municipal Court

Case No. R 85 TRD 15065 S

JUDGMENT: AFFIRMED. A-l

@62-

ne ren

cea seo

JOHN PLOUGH, PROSECUTING ATTORNEY

KEVIN POLAND, ASSISTANT PROSECUTOR

466 South Chestnut street

Ravenna, Ohio 44266

(for Plaintiff—-Appel lee)

CLAIRE KELLEY, PRO SE

6605 Sutton Drive

North Olmsted, Ohio 44070

(for Defendant—Appe!l lant )

FORD, P.J.,

On October 8, 1985,

defendant-appel lant, Claire Kelley,

was arrested for speeding, R.C.

4511.21(D), and for operating a motor

vehicle without a valid driver’s

license, R.C. 4507.02. At her initial

appearance in the Portage County

Municipal Court, appellant entered a

plea of not guilty to the charges.

On December 2, 1985, appellant

filed a motion to suppress ali

evidence resulting from the use of a

radar speed measuring device and, on

December 27, 1985, appellant filed a

motion to dismiss the charges against

her. Both of the subject motions were

grounded upon various constitutional

arguments advanced by appellant. A

hearing was subsequently conducted on

appellant’s motions, at the conclusion

of which the trial court overruled

them.

Thereafter, on February 28, 1986,

appellant was tried before the court

on the speeding violation, found

guilty, and fined $50.00, plus court

costs. Appellant appealed the trial

court’s judgment in Case No. 1677.

With respect to the driver’s license

violation, the record reflects that a

bench trial commenced on the matter on

May 20, 1986. Appellant was

ultimately adjudged guilty of the

charged offense and fined $500.00 and

costs. The trial court then suspended

the sentence on condition that

appellant obtain a valid Ohio driver’s

afin

license. Appellant appealed this

conviction in Case No. 1745. These

cases were consolidated for submission

to this court. The appellant presents

the following assignments of error In

each case.

1677

1. The municipal court erred in

refusing to rule on the constitutional

issues presented by Ms. Kelley’s

motion to dismiss thereby denying her

due process of law.

2. The municipal court erred in

denying Ms. Kelley’s motion to

suppress radar evidence.

3. Due process was denied Ms. Kel ley

due to the element of surprise by the

court and the prosecution.

4. It is error to have a mandated

quota system.

5. It {is error to ascribe credibility

to a witness who gives conflicting

testimony.

1745

1. The municipal court erred in

refusing to rule on the constitutions!

issues presented by Ms. Kelley’s

o6S$<

motion to dismiss as to ORC 4507.02

thereby denying her due process of

law.

2. The municipal court erred in

denying Ms. Kelley’s motion tc dismiss

as to 4507.02.

3. The municipal court erred in

denying Ms. Kelley’s renewed motion to

dismiss for inability to obtain a fair

trial, presented orally to the court

immediately preceding trial.

1677

In the first assignment of error,

appellant argues that the trial court

erred in refusing to rule on the

various constitutional arguments made

by appellant with respect to the

validity of the 55 m.p.h. speed

limit. The assignment is without

merit.

Generally, the party challenging

the constitutionality of a statute

bears the burden of demonstrating the

alleged unconstitutionality. Here

appellant had the onus of

demonstrating any such infirmity with

erica OA CoP nity AAI A Nl vis eS as

respect te che statutory 55 m.p.h.

speed limit, by introducing evidence

that the challenged law is unrelated

to the public health, safety, weifare,

or morals. 16 Ohio Jurisprudence 3d

(1979), Constitutional Law, Section

148, states:

"It is well established that

the burden of showing the

unconstitutionality of a statute

or ordinance is upon the one

challenging its validity. This

is In consequence of the genera!

presumption in favor of the

validity of legislation. The

proof of unconstitutionality must

be clear and beyond a reasonable

doubt.”

The record reflects that, prior

to overruling appellant’s motion to

dismiss, the trial court correctly

informed appellant that:

"THE COURT: The presumption is

that legislation ifs

constitutional. You can raise

the constitutional question, but

the legal presumption is that any

ordinance, anything that is

-67-

passed, is presumed to be

constitutional.”

Appellant has not met this

burden. She merely argues that since

the primary underlying rationale for

the 55 m.p.h. speed limit was the

energy crisis of the late 1970’s with

emphasis on fuel conservation, which

for many years has not had economic

and marketing impact, R.C. 4511.21

should not be enforced. This

argument, however, fails to

acknowledge the public safety

considerations upon which this speed

limit law was based, which is clearly

within the realm of valid legislative

purview.

With express specificity to

appellant’s first assignment, an

examination of the record in this case

clearly manifests that the trial!

court’s action in overruling

-68-

A ee

appellant’s motion to dismiss was

directly responsive to appellant’s

arguments dealing with her claims of

unconstitutional ity.

Appellant articulates the

applicability of the Northwest

Ordinance to buttress her

constitutional violation claims

regarding a lack of a showing of the

corpus delecti of the traffic

infringement involved here.

Appellant’s logic regarding the

Northwest Ordinance !s misplaced as

will be demonstrated infra. A reading

of R.C. 4511.21(D) discloses that it

does not contain any element which

provides that injury to property or

person must occur before it is

violated. Consequently, appel lant’s

contention that the finding of guilty

for speeding under this statute

violates Art.II of the Northwest

-69-

Ordinance, Art.I., Section 16 of the

Ohio Constitution and Fifth and

Fourteenth Amendments of the United

States Constitution because the state

did not submit evidence and prove that

the speeding act of the appellant did

not injure @ person or property as

part of the corpus delecti is without

substance.

Appellant also includes a

jurisdictional argument under this

assignment, which deals primarily with

her constitutional claims. Her logic

and analysis here is at best obscure

and federal law gives rise to origina!

jurisdiction in the United States

District Court. She urges that a

federal! question arises under 23

U.S.C. 154(A)(7). Her litany here

continues with her observation that

“these joint regulatory endeavors

involving both state and federa!

-70-

government and federal! funds give

original jurisdiction to the United

States District Court." She cites

Maine v. Thiboutot (1980), 444 U.S.

1042, pertaining to civil rights

actions, and also 28 U.S.C. 1355(A) (8)

{mn support of this position. The

record here clearly shows that the

alleged speeding violation in question

occurred on a public highway in the

State of Ohio, which, in fact, was a

portion of the Ohio Turnpike. The

principle that a state may reasonably

regulate the speed of motor vehicles

on public highways within its

boundaries is so well entrenched that

this court feels it is wholly

unnecessary to cite authority for this

proposition. Simply stated, the trial

court had jurisdiction over both the

subject matter and person here.

In view of appellant’s failure to

Pia

establish the alleged

unconstitutionality of the continued

enforcement of the 55 m.p.h. speed

limit, her argument must fall.

Appellant’s second assignment of

error challenges the constitutional ity

of R.C. 4511.091, authorizing the use

of radar devices. Again, however,

appellant fails to meet her burden of

demonstrating the purported invalidity

of the challenged legislation.

While appellant directs this

court’s attention to Florida v.

Aquilera (May 7, 1979) Dade County,

the cited case is neither applicable

to nor controlling of the present

facts. Aquilera was a consolidation

of approximately 100 cases brought by

defendants challenging the use of

various radar devices in Dade County,

Florida. In granting the numerous

motions to exclude or suppress

o72@

ee

evidence, the trial court specifically

noted that the challenged devices were

being employed by law enforcement

officers {in the absence of any

training as to the manner or method of

use and any proof that the operators

of these devices were qualified to do

the same. Since training and

experience are prerequisite to the

admissibility of a radar testing

device’s result in Ohio, Aquilera does

not have significant materiality or

impact in this case. Further,

appellant’s position in support of

this issue ignores the fact that there

was other speed measuring evidence

introduced by the state through the

patrolman’s testimony independent of

the radar device employed here that

would provide a separate basis for a

finding of guilty. See Kirtland Hills

v. Logan (1986), 21 Ohio App. 3d 67.

Again, appellant contends that

there was a violation of Art.II of the

Northwest Ordinance of 1787, Article

I, Section 10 of the Ohio Constitution

and the Fifth and Fourteenth

Amendments of the United States

Constitution by virtue of the creation

of statutory presumption pertaining to

a K-55 radar device, which fs

irrational and arbitrary. A reading

of the statute fails to show that it

contains a statutory presumption.

Thus, there is no violation of the

doctrine expressed in U.S. v. Tot

(1943), 319 U.S. 463 of the “rational

connection test."

It is pertinent to note that in

an analysis as to the scientific

accuracy of a moving radar device that

evidence of the presence or absence of

devices that may interdict its

reliability fs not only relevant, but

aPdn

most probative. In the Aquilera tenor

and that of its progeny, we observe

lack of such input {fn the record

before us, although we are aware of

appellant’s rationalization for a

failure to produce evidence on this

point which will be discussed next.

Appellant’s third assignment of

error claims a denial of due process,

advancing that certain statements made

by the arresting officer surprised

appellant to the extent that she

forgot to call two witnesses on her

behalf. The assignment is not wel!

taken.

While it is recognized that

appellant had proceeded pro se

throughout the course of lower court

litigation, this court fs bound by the

rules of criminal and appellate

procedure. Since appellant could and

should have attempted to correct this

purported omission at the trial court

level, but did not, this court is

precluded from reviewing the matter on

appeal.

4 Ohio Jurisprudence 3d (1978)

299-300, Appellate Review, Section

137, provides:

"It is axiomatic that in an

appeal the reviewing court may

consider only that which was

considered by the trial court and

nothing more." Id. at fn. 11.

See, also, Stores Realty Co. v.

Clevelan ar ¢ BB ndards

Bldg. Appeals (1975), 41 Ohio St. 2d

41.

Appel lant’s fourth assignment of

error is predicated on her argument

that the federal government has

imposed a mandated quota system on the

State of Ohio, requiring state law

enforcement officers to arrest a

specified percentage of speed limit

violators per year to insure federally

aFie~

funded aid for highways. See, Section

154, Title 23, U.S. Code. The

pertinent portions of the federal

statute at issue are:

"(1)* * * Cijf the data submitted

by a State pursuant to subsection

(e) of this section show that the

percentage of motor vehicles

exceeding fifty-five miles per

r h " rt ionment

| of Federal-aid highway funds

| under each of sections 104(b)(1),

| 104(b) (2), and 104(b)(6) of this

(a) * *.° £33) t ubmitted

#** show t th ercentage of

motor vehicles excees:ng

fifty-five miles per ieur is

greater than 60 per centum, the

Secretary shal) reduce the

State’s apportionment of

Federal-aid highway funds* * *"

"(5) For the twelve-month period

ndin a nd

for h n we | ve-month

period thereafter, if the data

ubmitt t r nt to

subsection (e) of this section

for th r_show that the

percentage of motor vehicles _

exceeding fifty-five miles per

hour _i r r_than r

centum, the Secretary shal!

reduce th tate’s a rtionment

of Federal-aid highway funds

-J7-

C 4 n

an_aggregate amount of up to 10_

per _centum of the amount to be_

apportioned for the fiscal year

ending September 30, 1985, and

for each succeeding fiscal year _

thereafter.”

In the first instance, the record

does not appear to reflect that

appellant raised this issue at the

trial court level, resulting ina

waiver of the argument on appeal.

Stores Realty, supra.

Further, and assuming arquendo,

that appellant raised this issue at

the proper time, appellant’s objection

to the purported quota system is

wholly without merit. The challenged

quota system was put into effect by

the federal government to insure state

enforcement of the 55 m.p.h. speed

limit law. Notwithstanding

appellant’s assertions to the

contrary, the power of the federa!

» IOs

1 hte SI aD ceri atleast

government, under the commerce clause

(of the U.S. Constitution, to enact a

speed limit law, and to effect any

programs to aid in the enforcement of

this law, is well established and not

subject to dispute.

Finally, appellant has failed to

demonstrate that she was prejudiced as

a result of the alleged quota system.

Appe! lant did not establish, even by

allegation, that the police officer’s

actions in arresting her for exceeding

the 55 m.p.h. law were the result of

the officer’s desire to secure

compliance with the purported quota

system.

A close examination of this

statute does not support appellant’s

position that a literal quota system

for citations is prescribed in

citations and/or arrests by the

federal government for the states at

-79-

the risk of monetary sanctions.

Admittedly, the legislative directives

call for annual reports certifying the

percentage of vehicles exceeding the

posted speed limit of 55 m.p.h. on

public highways. However, there is no

portion of this statute that provides

that this certified information is to

be compiled as a result of actual

citations issued by state law

enforcement officers, or that this is

to be the exclusive method to be

employed by the states to determine

this information.

In view of the foregoing

reasoning, appellant’s fourth

assignment of error is not well taken.

Appellant’s final assignment of

error contends that the arresting

officer’s testimony as to appellant’s

speed of travel! was allegedly

conflicting and, as such, was

-80-

insufficient to support her

conviction. Here, the record

discloses that Sergeant Veppert

testified that when he first observed

appellant’s vehicle at the time in

question she was clocked’ by a moving

radar device at 73 m.p.h., and that

when he pursued her immediately after

this radar clocking, he paced her

speed for approximately one mile at

between sixty-eight to seventy m.p.h..

It is obvious that this testimony is

not conflicting or inconsistent. It

simply is testimonial matter

describing different speed

observations through different

detection techniques at separate time

intervals and places. Again,

appellant fails to establish her

argument in this assignment. Since

the burden of demonstrating the

purported error has not been met by

-8l-

appellant, this assignment is also

found to be without merit.

1745

Appellant’s first assignment of

error in this case !s premised on her

assertion that the trial court refused

to rule on the constitutional

arguments raised by appellant with

respect to appellant’s arrest for

driving witheut @ valid Onfo license.

The record before this court does

not support appel lant’s contention on

this fssue. Rather, the transcript

reflects that, prior to overruling

appellant’s motion to dismiss,

appellant was given ample opportunity

to voice her objections to the

state-imposed driver’s license

requirement. Further, the trial court

correctly informed appellant that:

“THE COURT: The presumption is

that legislation is

constitutional. You can raise

the constitutional question, but

-82-

the llega! presumption is that any

ordinance, anything that is

passed, is presumed to be

constitutional.”

Finally. the record demonstrates

that, after considering appel lant’s

arguments on the issues raised is

appellant’s motion to dismiss, the

trial court determined that appe! lant

. failed to establish the alleged

unconstitutionality of the driver’s

license requirement and overruled

appellant’s motion to dismiss on this

ground. This point appears to be

tacitly admitted by the appellant in

the very language employed by her in

her second assignment of error where

she expressly states that the trial

court “erred in denying Ms. Kelly’s

motion to dismiss as to 4507.02."

Since the record does not support

appellant’s contention in this

assignment, it is determined to be

without merit.

Appellant’s second assignment of

error, which as we have mentioned is

somewhat in conflict with her first

assignment of error, contends that the

trial court erred in overruling her

motion to dismiss. The assignment is

not well taken.

Attention is directed to the

statute which forms the basis of

appellant’s conviction and whose

constitutionality appellant new

challenges.

"No person, except those

expressly exempted uner sections

4507.03, 4507.04, and 4507.05 of

the Revised Code, shal! operate

any motor vehicle upon a highway

“7 any public or private prorerty

used by the public for purposes

of vehicular travel or parking in

this state unless the person hes

@ valid license as an operator or

chauffeur, which license was

fssued upon application by the

registrar of motor vehicles under

sections 4507.01 to 4507.39 of

the Revised Code.” R.C.

4507.02(A)(1).

-84-

Pursuant to R.C. 4507.99,

violation of R.C. 4507.02 constitutes

@ misdemeanor of the first degree.

Appellant first challenges her

conviction under the foregoing statute

on the ground that she did not possess

the requisite intent to violate the

statute, nor did her actions in so

violating it result in harm to any

person or property. Appellant further

challenges her conviction the basis of

due process, asserting that she did

not have notice that it was illegal to

drive in Ohio without a license.

Contrary to appellant’s arguments

on the issues of notice and intent,

the record demonstrates that appe! lant

had previously been issued an

operator’s license but that she let it

expire. In view of this prior

licensing status, it is difficult to

perceive how appellant can contend

af3e

that she did not know it was illegal

to drive in Ohio without a valid

license, or that she did not intend to

violate R.C. 4507.02.

Appellant’s argument regarding

the fact that she was not notified by

legal counsel for the Ohio Bureau of

Motor Vehicles, or by anyone else who

was an agent of the state, nor by any

other appropriate state agency that to

operate a motor vehicle in Ohio

without @ valid operator’s license was

“wrong or impermissible” {is spurious.

Ihis position of appellant applies to

the time sequel after the expiration

of her Ohio operator’s license, and

when she received her citation for

this alleged infraction.

Generally, it is well estab! ished

that notice requirements to the public

or potential offenders, with respect

to a criminal statute, or one that is

~86-

an exercise under the police power,

with respect to the First and

Fourteenth Amendments, are aptly

satisfied when the legislative

enactment informs the citizen with

reasonable precision what act it

intends to prohibit, so that he may

have a certain understandable rule of

conduct and know what acts it is his

duty to avoid. See, 21 American

Jurisprudence 2d (1981) 130, Criminal

Law, section 17. Closely integrated

with this postulate is the requirement

that such legislative enactments in

their syntax be so clear and explicit

that all persons of ordinary

intelligence who are subject to their

penalties will understand their

provisions. State v. Kosloff

Fisheries, Inc. (1960), 16 0.0. 2d

367. This rule is the fundamental!

proscription against language which is

-87-

improperly vague.

Applying the "plain, ordinary,

and natural meaning" standard to the

language contained in R.C. 4507.02, we

fail to see where it does not comply

with constitutional statutory notice

requirements. On the contrary, it is

our view that it clearly indicates the

activity which it intends to prohibit,

namely operating a motor vehicle in

Ohio without a proper and valid

operator’s license. Unequivocally, a

member of the public is being told not

to do that. The appellant’s act of

fashioning her own operator’s license

or I.D. for display purposes after her

Ohio operator’s license expired cannot

satisfy the dictates of this section

of the code that an Ohio resident must

obtain such license issued upon

application by the registrar of motor

vehicles. Nor {s her argument that

having passed the operator’s test

once, the same is sufficient for life,

persuasive either.

Further, we know of no

constitutional, statutory, or common

law duty on the part of the state to

notify members of the public

individually that certain conduct on

their part will subject them to

sanction. Hence, we hold this statute

to be constitutional in this regard.

As stated previously, appellant

also argues that she did not intend to

violate R.C. 4507.02(A)(1), or to

cause injury or damage to person and

property. Again, her position on this

point is misplaced in her analysis of

mens rea, and it indicates a lack of

understanding of the concepts of mala

in se and mala prohibita. Mala

prohibita is defined as fol lows:

"Prohibited wrongs or offenses,

acts which are made offenses by

-89-

positive laws, and prohibited as

such. Acts or omissions which

are made criminal by statute but

which, of themselves, are not

criminal. Generally, no criminal

{ntent or mens rea is required

and the mere accomplishment of

the act or omission is sufficient

for criminal liability. Term is

used in contrast to mala in se

which are acts which are wrongs

in themselves such as robbery."

(Black’s Law Dictionary, Fifth

Edition).

No language is contained in R.C.

4507.02 that specifies any requirement

of intent or culpability. Generally,

the classification of acts as mala in

se or mala prohibita has bearing on

questions raised regarding the degree

or status of intent, culpability, if

any, which may be required to be

established before a valid finding of

guilty may be made. With regard to

mala prohibita matters, it is often

said that no fntent may be necessary

as an element of a given offense, or

at best a general intent rather than a

specific one.

25 Ohio Jurisprudence 3d,

Criminal Law (1981), Section 54,

states, in part:

“ne * *And, while it was said that

the doctrine of crime without

intent applied only to a limited

class of acta mala prohibita,

within this limited field it was

held that when an act was

prohibited by statute, without

including the element of

knowledge or intent, the courts

would not by judicial

construction include such element

@s a necessary part of the

crime. It was also held that

where a statute defining an

offense was silent on the

question of intent, it thereby

indicated the purpose of the

General Assembly to make proof of

@ specific intent unnecessary and

proof of a general intent to do

the proscribed act sufficient.* *

Since intent or culpability is

not an element under R.C.

4507.02(A)(1), it was unnecessary to

prove it, even though there is

sufficient evidence in the record

before us to conclude that the

afin

appellant did, in fact, intend to

operate a motor vehicle in Ohio

without a valid Ohio operator’s

license.

With respect to appel lant’s

position that she could not be

criminally convicted absent a showing

of injury to another person or

property, the statute in question is a

valid legislative attempt to regulate

and maintain public health and safety

on the highway. Obviously, this

statute does not contain any language

that imposes any requirement that

actual injury to person or property

occur in order for it to be violated.

Therefore, appellant’s contention that

the corpus delecti is not satisfied

here is without substance, and we

perceive no violation of the Fifth or

Fourteenth Amendments here nor of

-92-

Article VI of the United States

Constitution or Article I, Section 10

and 16 of the Ohio Constitution, let

alone Article II of the Northwest

Ordinance of 1787, which we wil!

address infra. Pertinently, as aptly

stated by the trial court, one of the

underlying reasons for the licensing

requirement is to insure that those

individuals who are operating motor

vehicies within this state are

competent and capable of doing so. In

view of the legislative power to enact

legislation for the public health,

welfare, safety, and morals, as wel!

as the corresponding ability to enact

legislation to insure compliance with

the relevant law, appellant’s argument

on this fssue must fail.

Appellant finally challenges her

conviction on the ground that driving

an automobile is an implied

-93-

fundamental constitutional right which

cannot be infringed by the state

through the requirement of a driver’s

license.

In support of this particular

constitutional challenge, appellant

relies in part on Article IV of the

Northwest Ordinance:

"The navigable waters leading

into the Mississippi and Saint

Lawrence, AND THE CARRYING PLACES

BETWEEN THE SAME, shal! be common

highways, and FOREVER FREE ***

without ANY tax, impost or duty

therefor.” (Emphasis added).

Her logic here asserts the

syllogism that the operator’s license

fee {s a tax for the right of

travelling the common highways, and

that the substance of this provision

was made a part of Article VI of the

Federal Constitution. It is true that

the Northwest Ordinance holds a

cherished position as a most

progressive document, which had much

-94-

impact on the development and

advancement of many of our basic

rights and freedom. Many of its

features have found continued life in

other tomes. It is equally clear that

the literal legal effectiveness of the

ordinance concluded when Ohio become a

state and adopted its own constitution

which was accepted by the congress of

the United States. State ex rel.

Donahey v. Edmondson (1913), 89 Ohio

St. 93, 101, 105. Nor are we

impressed with appellant’s suggestion

that Ohio did not officially become a

state in 1803. Therefore, we conclude

that this ordinance has no direct,

precedential role in this case.

Turning to her other

constitutional *rguments appellant

states that she is not

constitutionally required to obtain

and possess a valid Ohio operator’s

a§Se

————a—eeeor

license tn order to drive on the

highways of this state since driving

an automobile in this country Is a

constitutional right based on the

First, Fifth, Ninth and Fourteenth

Amendments.

In the first Instance. appellant

faitis to direct this court’s attention

to any case law establishing that the

operation of ae motor vehicie on ea

state highway ifs a constitutional

right that cannot be regulated by the

state. On the contrary. the United

States Supreme Court has stated that:

"The use of the public highways

by motor vehicies, with its

consequent dangers. renders the

reasonableness and necessity of

regulation apparent. The

univereal practice is to register

ownership of automobiles and to

license drivers. Any appropriate

means adopted by the states to

insure competence and due care on

the pert of its licensees and

protect others using the highway

fs consonant with due process.”

Reitz v. Mealey (1941), 314 U.S.

33, 36.

In Bibb v. Navajo Freignt Lines

(1959). 359 U.S. 520. 523-24, the

court stated:

"The power of the State to

regulate the use of its highways

's broad and pervasive. We have

recognized the peculiarly loca!

nature of this subject of safety,

and have upheld state statutes

applicable alike to interstate

and intrastate commerce, despite

the fact that they may have an

impact on interstate commerce ***

The regulation of highways ‘is

akin to quarantine measures, game

laws. and itke local regulations

of rivers, harbors, piers, and

docks, with respect to which the

state has exceptional scope for

the exercise of its regulatory

power, and which, Congress not

acting. have been sustained***’”

It should be noted that the

appellant has inappropriately

convoluted the common-law right to

travel. Smith v. Thompson (1930), 154

S.E. 579, with the privilege to

operate a motor vehicie.

In Onto, the prevailing view has

been thet the operation of a motor

vehicie jurisprudentially has been

-™

viewed as a privilege rather than ea

right. Smith v. Hayes (1955), 60 0.0.

112; Wilsch v. Bencar (1966), 7 Ohio

App. 20 165, 167, 168. The Smith case

held that the state hes an absolute

right under its sovereign police power

to contro! automobile traffic by

regulating the circumstances under

which citizens may be licensed to

operate motor vehicies. It has also

been field In Ohio that one of the

primary purposes of a system of driver

licensing laws in Ohio tis to protect

street users from the dangers of the

conduct of incompetent drivers.

Watson v. Osborne (1948), 51 Ohio Law

Abs. 569. This is a legitimate

compelling interest and exercise under

the police power. There is certainly

@ rational! connection between the

licensing exercise and the activity to

be controlled. Although {ft has been

-98-

held that a driver’s license is an

important property right itself, that

does not control! the outcome here, and

there is no derivative consiusion from

this property right to the effect that

the right to drive an automobile is

fundamental in the constitutiona!

sense. Wells v. Mollay (1975), 402 F.

Supp. 856, 858.

Certainly the denial of an

operator’s license, or its suspension,

is subject to procedural due process.

Panatt v. Taylor (1980), 451 U.S. 527,

540. However, this is not a viable or

contested issue here since there was a

court trial on the subject of

operation without a license afforded.

Touching briefly on appellant’s

freedom of religion argument, in Bell

v. Burson (1971), 407 U.S. 535, 539,

the petitioner was a clergyman whose

ministry reauired him to travel by car

-99-

to cover three rural communities. The

court held that an operator may be

denied a license for appropriate

reasons so long as procedural due

process required by the Fourteenth

Amendment is observed. Surely the

power to deny here is part of the

power phylum to grant, withhold, or

penalize for failure to obtain.

For all of the foregoing reasons,

we find that R.C. 4507.02 is

constitutional in its application to

all facets of this case, and that this

assignment of error is without merit.

The diction employed by appellant

does not state succinctly the gravamen

of her specific claim of error under

her third assignment in this case. It

is her position in this argument that

she filed a motion to dismiss the

citation because of her anticipation

that the jury would not be permitted

-100-

to receive her arguments on what the

law was and how it should apply, as

well as the facts, and make

conclusions on both of these

subjects. In essence, her claim is

that the position taken by the the

trial court with respect to her jury

trial request forced her to waive a

jury trial and submit her case to the

court alone. She urges that this

emasculation of the jury role denies

her a fair trial - hence due process.

She also submits that the proper

constitutional framework for the jury

function is that it should not only be

apprised of the applicable law by the

trial judge, but that fit should have

the power to be instructed that it

"can nullify the law, {f, for any

reason, they believe it to be unjust

or unfair." She further contends in

her brief:

-101-

"The criminal trials referred to

by the Ohio Constitution (Art.lI,

sec.10), and the U.S.

Constitution (Fifth and Sixth

Amendments) were trials ‘per

pais’, that is, a trial ‘by

country’ or trial by ‘the

people’, where they are the

judges, not a trial by

government, where the court is

the judge." (Emphasis in

original).

Thus, she takes the position that

a criminal defendant should be able to

argue to a jury what the applicable

law is and how it should be applied -

that "no judicial fiat can alter that

right.” She also orques that in

courts today “jurors ure lied to by

the court and made to believe they

must take the law as the judge gives

it to them."

While it may have been the

practice in the earlier years of our

country to have permitted juries to

have greater involvement in

determining the law of the case as

-102-

suggested in U.S. v. Moylan (1969),

417 F. 2d 1002, 1006, the Supreme

Court of Ohio had occasion many years

ago to pronounce the law as to the

role of the jury and the trial judge

in a jury trial in Ohio.

52 Ohio Jurisprudence 2d (1962),

Trial, Section 90, at 578, states:

"It is the exclusive province and

solemn duty of the trial court to

determine in every case what the

law is in whatever form

presented, and so advise the jury

and direct the application of the

law to the facts of the case at

bar. An evasion of this duty is

the very negation of law ***"

[and cases cited therein].

Although appellant’s argument

under this assignment is provocative

and somewhat novel, it is not

pristine. This court is not unmindful

that some of the references cited by

appellant here are applied out of

context, and included material that

supports the contra position is

-103-

conveniently ignored.

We remind the appellant that it

is the role of an appellate court

under Ohio law to apply the law as

declared by the Supreme Court of this

state on a given subject. It is most

evident that the Supreme Court of Ohio

has had occasion to declare and

redeclare the law on this topic as

evidenced by the foregoing quotation

and citations found in reference to it

as well in Scaccuto v. State (1928),

118 Ohio St. 397, and its progeny.

The rationale behind this approach is

based on an extensive experience table

which has as its goal the salutory aim

of having a system which will provide

@ greater probability of insuring a

consistent and fairer administration

of the law, instead of leaving it to

the determination by a jury on any

given occasion with the spectrum of

-104-

unpredictable interpretation in view.

Since a basic precept of criminal

justice is the orderly, efficient, and

reliable application of the law,

appellant’s third assignment is wholly

lacking {in merit.

The judgment of the trial court

is affirmed in both cases.

DONALD R. FORD

PRESIDING JUDGE

COOK, J.->

CHRISTLEY, J.» concur

-105-

FRONT SIDE

OHIO DRIVER

CLAIRE KELLEY

6605 SUTTON DR.

NORTH OLMSTED-OH 44070

ignature

icense ae li

RTOOO0001 GLASSES

Date issued |Endorsement

7/30/85 |U.S.CONSTITUTION

AMENDMENTS 1,

5,14

er |Sex

F

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NABILITY |000/{ 00 |0000 5 |8

Wt

140

Hai

L.B

r Eyes

BLU

*CRT - Constitutional Right

-106-

BACK SIDE

NOTICE

1. lst. Amend.: The right to travel

by any means is a constitutional right,

not a state granted privilege. Kent v.

Dulles, (1958) 357 U.S. 1; Slaughter-

House Cases, (1873)16 Wall. 36.

2. 5th Amend.:Constitutional "lib-

erty” embraces the right of all per-

sons to be free from governmental in-

terference with their movements, un-

less they have injured someone in their

person and/or property.

3. 14th Amend.: Prohibits the depri-

vation of constitutional rights, by

making or enforcing any state law which

abridges then.

4. Any interference with said rights,

can subject a person to a Civil Rights

suit (42 USC 1983, 1985(3) & 1986) and/

or to criminal prosecution (18 USC 241,

242.)

5. The undersigned hereby claims

her above-stated rights.

f

Basie ellen.

-108-

No.

SUPREME COURT OF THE UNITED STATES

October Term - 1988

CLAIRE KELLEY, Petitioner,

Vv.

STATE OF OHIO, Respondent

DECLARATION OF SERVICE

(28 U.S.C. 1746 (2) )

I, CLAIRE KELLEY, declare as follows:

1. That my home address is 6605

Sutton Dr., N. Olmsted, Ohio - 44070;

2. That I am a citizen of the United

States, over eighteen years of age;

3. That on ZeeagueZ // 1988

V

I timely mailed, first-class, prepaid,

one copy of PETITION FOR WRIT OF CERT-

IORARI TO THE SUPREME COURT OF OHIO &

~109-

APPENDIX

to each of the following parties, by

United States mail addressed as follows:

JOHN J. PLOUGH, Prosecutor

466 S. Chestnut St.

Ravenna, Ohio - 44266

CHARLES FRIED, Solicitor General

Department of Justice

Washington, D.C. = 20530

4, That Mr. FRIED is being served

because 28 U.S.C. 2403(a) may be appli-

cable;

5. That all parties required to be

served have been served;

6. That there is regular communica-

tion between the place of mailing and

the place so addressed;

7. I declare under penalty of per-

jury, that the foregoing is true and

“correct.

EXECUTED On: Laser //___ 1988.