Administrative Law

My wife was driving a van registered in my name and she was speeding and activated the radar speed camera. She was not stopped and the system does not photograph the driver. The applicable ordinance is written so that the registered owner is held responsible because there is a PRESUMPTION t the owner was most likely the driver. Their purported rational is that they have classified the violation as a civil penalty much like a parking ticket and when they issue a parking ticket it is to the registered owner. In the case of this ticket they want a fine of $50.00 and another $40.00 for court costs. Other than handicapped parking violations have you ever heard of a parking ticket that costs that much? I decided to fight the notice of violation and have been researching how to do it for several months.

To date I have sent 7 motions to the City Court and am working on several more in addition to an Answer to the Notice of Violation. When I called the court clerk to get an extension and told her who I was she remarked: “Oh, you’re the one who sent in all the paperwork. Don’t you know that this is just like a parking ticket and puts no points on your license?” Yeah, I know that but what you are doing is just dead wrong. This particular system is a speed trap in a town of 1,650 people that produces between $125,000 and $250,000.00 in revenue a month. It is a cash cow and that is its main purpose. The city argues that it is for traffic enforcement but there is no proof that it has any effect. Now the city realizes that 60% of the people will just pay up without any argument and move on. About 30% will just ignore the notice and only have a ding on their credit report or could risk losing their license (but that doesn’t seem too likely since it is not a moving violation). Now the last 10% take them to task either on their own or with an attorney. Statistically of that 10%, 60% will be dismissed. The other 4 people in every 100 take some kind of other action like forcing a trial or going to an appeal. This series of article is for those of you that are willing to do something more. You have nothing to lose by trying. So if you’re on board keep reading.

Traffic courts are often administrative courts. Administrative courts and administrative law are often called the 4th branch of government. It is a legislative creation and is not sanctioned by the Constitution. For the most part it is not even a judicial process. You will appear in front of a hearing officer who may not even be a judge. Allegedly administrative law was created to combine the three functions of government to allow a government agency to tackle a problem and get the job done most efficiently, but this combination has not been accepted without a struggle. Some have taken the position that the basic structure of the administrative law system is an unconstitutional violation of the principle of the separation of powers since it can combine all three gov’t functions (executive, legislative and courts) and is frequently part of the executive dept (Federal and state). Using administrative courts as traffic courts is a quicker way of “disposing” of cases than to let everyone have a trial.

Allegedly an administrative agency may not deprive anyone of life, liberty, or property (money) without a reasonable opportunity, appropriate under the circumstances, to challenge the agency's (hearing officers) action. People must be given fair warning of the limits an agency (hearing officer) will place on them. In the case of traffic court it is fines, sometimes points and even suspension of your driver’s license. Because they pursue their actions less formally, agencies and administrative hearings do not follow the civil procedure set up for courts; instead, the law of administrative procedure has developed to ensure that agencies do not abuse their authority even though they use simplified procedures. The problem is this works only if you know what the rules are or have an attorney that knows how the game is played. In most cases involving traffic court it is an ambush and you are unarmed.

Typically, a proceeding begins with a complaint or Notice of Violation or a ticket filed by the agency, much as a civil trial begins with a complaint prepared by the plaintiff. After the respondent/defendant answers, each side may conduct discovery of the other's evidence, move (make a motion) and attend prehearing conferences. As far as I can tell this applies in the administrative process as well. If you don’t know what you are facing it is hard to know how to handle this process. Now here is the part they don’t tell you. Any information, evidence, arguments, points of law, request for more information that isn’t submitted before the hearing is not an issue at the hearing. The hearing officer considers the evidence before them at the time of the hearing.. By the time of the hearing if you haven’t already got you material together, you’re screwed. In some cases there can be an appeal to a real court but only if there is some substantive reason other than you don’t like the decision.

At the hearing you may cross examine witnesses. Unless you have subpoenaed your witnesses all you are left with (if he even shows up) is the police officer. I’ll do another piece on questions you can use to impeach the officer. After the evidence is heard the hearing officer/judge will render a judgment. (Usually you lose). But if you are in it for the long haul all is not lost yet. There is an appeal process you can invoke called a “trial de Nuevo”: request for a new trial.

One of the traps in an administrative hearing process is the failure to provide proper notice of charges/claim and in most cases the intentional concealment of the nature of the proceeding (non judicial) and the type of legal system involved. (Types of law in the Constitution included civil, equity, criminal, maritime and admiralty, there is no mention of administrative law). There is plenty of information on how to respond to civil and criminal types of action and greater clarity of your rights rights.

In an administrative hearing the rules are not known to the general public. To me this violates fundamental concepts of fairness and undermines the purpose of government to protect and defend the people. One of the most unfair elements is that the process shifts the burden of proof from the prosecution to the defendant. In short, you are guilty unless you can prove otherwise. The evidentiary standard is different in an administrative action. All they require is “clear and convincing” evidence. They give greater weight to the governments witness and evidence than they do to yours. To shift this weight of the evidence you have to attack the evidence and attack the credibility of the chief witness, the police officer. Both can be done.

So, what can we do? Well first you can be willing to fight the violation on a whole bunch of grounds. First you file an answer to the notice of violation and then write Motions for the court to consider. So far I have sent in motions to:

Normally a hearing officer will just deny your motions without consideration. That alone is grounds for an appeal. I am working on a motion to quash evidence (the photo and declaration of the police officer) because the photo is by definition hearsay and the police officer has no personal knowledge of the incident or how the photo came to him (chain of custody). In any event I am laying the ground work for an appeal.

This site will be posting copies of an answer and motions that you can fill in your own information on and send in. At the very least we can bury them in paperwork and may be able to win a few rounds. There will be additional articles on Motions, a “what do” at the hearing, question to ask the hearing officer about the procedure and questions to. Impeach the officer. In court from start to finish you object to everything. One big objection will be to the evidence from the vendor providing the photo. More on that later in an article on evidence.

Howard Williams has more than 40 years of experience in law enforcement, civil and criminal investigations and a broad background bolstered by a degree in political science with an emphasis on history of governments and constitutional law. He is not a lawyer and nothing in this article should be construed as legal advice. He is however pissed off by the process and willing to fight for what is right.