By Richard L Koenig
DMV Counsel, Jack Sollis wrote to the Interim Committee on the Revision of the Vehicle Code on March 7, 1984 to inform them that the new revision needed twenty one definitions; included among them were “driver”, “operator” and “traffic”. Over advice of Counsel, at least these three definitions never made it back into the Vehicle Code. Pease provide me with the public record/legislation wherein these definitions were last committed, in the official language of the legislative assembly, pursuant to the Oregon Constitution, “… the people [in whom all power is inherent…declare] all roads, ways or water ways are for public use” (Art I, Sec. 1 and 18), meaning only one thing, “license” means permission required by ORS 183.310(5) to pursue any commercial activity, trade, occupation or profession, including the business of hauling for hire, which means the same as “privilege to drive”.
David P. Moomaw’s law, SB 124 of 1985, Laws of Oregon 1985, Chapter 636, section 2, currently ORS 803.035 proposed to make previously issued titles to the “categories of vehicles, types of vehicles or otherwise”, legitimate. Technically speaking, like from the initial year, when the law was different, to the date Mr. Moomaw’s law effectively made these illegal certificates of title “legal”, what years, and actual dates were these two (or more) points operative during and/or through?
When did AG Isaac Van Winkle write his Opinion on Vehicles that don’t go out with drivers for hire are not subject to user taxes? August 28, 1929! When did Justice Charles McNary assert that the reason Kalich could not win (en banc), was because Knapp was not a “motor vehicle operator”? 72 Or, 558
Does DMV Counsel offer a pretext for the alleged delegated authority to issue state documents to the general public, during any historic moment since “Motor Vehicles” became a regulated commercial “thing”, for which the “motor vehicle laws” were named pursuant to Article IV, Section 20? 18 USC, Part 1, Chapter 2, Section 31, (6) (see US Constitution at Art. VI, second clause).
Mr. Moomaw’s law was enacted in 1985, and the implementing rule was proposed on November 15, 2004 (filed with SOS). Who did David Eyerly write in as the “financially impacted parties”, in the STATEMENT OF NEED AND FISCAL IMPACT for OAR 735-022-0120? Did Mr. Eyerly claim to have given NOTICE of “Optional Titling Rule” to this never before recognized “subject class”, which were characterized as “members of the general public who choose to title”? In 2010 as OAR 735-022-0120 was passing its fifth year, ORS 183.XXX required review of that rule. Please provide for my inspection the public record/document indicating this was a fine rule that should be continued beyond the five year minimum.
Mr. Moomaw’s Optional Titling Law &
ODOT’s 2012 “Optional” Titling and Registration Rules
OAR 735-022-0130 AND OAR 735-032-0055 respectively:
A brief history
Authorizing Statutes (law): ORS 803.035, 803.040 and 803.310, Optional Titling and Registration
Have you ever heard that the people are supposed to be the beneficiaries of laws enacted by their legislators? Are you among the many who entertain the notion that government, which was put in place to serve the needs of the people, is now in the business of intimidating people? Read this brief history of one government agency’s efforts to paint a legitimate face on extortion in order to broaden your perspective.
The authorizing statutes provide for “optional titling” of vehicles that are not subject to, or are exempt from the titling requirement. These sections were enacted in order to prevent loss of an unspecified amount of DMV revenue. In 1985 DMV Director, David P. Moomaw, told Oregon’s Legislative Assembly that his agency had been receiving “some revenue… NOT AUTHORIZED IN CURRENT LAW” (emphasis mine). His Senate Bill 124 proposed to make legal his agency’s long standing practice of accepting fees from most people, so that his agency would not “lose” the revenue stream to which it had become accustomed. Such a proposition is questionable on its face, because one does not lose something to which one has never had legal claim (fees collected without authority in law are “unlawful” and are therefore subject to being reimbursed).
In 1985 DMV’s Director Moomaw was also a member of “an agency of the Supreme Court”, formerly known as the “Traffic Court Rules Committee”, but the name had been changed during its existence to the “Minor Court Rules Committee”. Of course the “separation of powers doctrine” prevents an officer of the Executive Branch of government, like Mr. Moomaw, from simultaneously serving in any other branch of government. Mr. Moomaw wasn’t the only Executive Branch officer on the Minor Court Rules Committee, the Superintendent of the Oregon State Police was described in statute as a member of the Committee as well. The most important mission of the Minor Court Rules Committee was to make the general public feel welcome in Traffic Court, a place they had long been expected to pay fines for non-compliance with laws enacted to regulate licensed commercial interests which make the public highways/public right of way places of business, transporting persons or property for hire.
In searching the files of the Legislative Revenue Office to determine the financial impact of optional titling and registration, one discovers that no analysis of who was to pay how much for what had been done, undoubtedly because Moomaw’s revenue preserving bill was introduced as a Senate Bill. Inasmuch as “a penny saved is a penny earned”, and the fact that Mr. Moomaw
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admitted his intent to save a revenue stream never authorized by law, there can be no doubt that SB 124 of 1985 was a revenue raising bill. The Oregon Constitution at Article IV, Section 18 says Mr. Moomaw’s bill, now encoded at ORS 803.035, 803.040 and 803.310 is not legitimate because, “all bills for raising revenue must originate in the House of Representatives”. Legislative Counsel staff, including a gentleman named Bradd Swank and/or a lady named Joan Robinson, whose job was to draft legislative measures and assign bill numbers to them, must be understood to know the law that governs their jobs. Therefore, it may be “legally presumed” that the LARGEST revenue raising bill ever to have received a majority vote by Oregon’s Legislative Assembly was willfully concealed from the staff of Legislative Revenue Office to prevent the analysis they would ordinarily perform, merely by hiding it behind a Senate Bill number, instead of the constitutionally required House Bill number.
The opening sentence of Mr. Moomaw’s law says there are TWO classes of vehicles which, by law, have never been expected to be titled or registered, those which are “not subject to”, and those which are “exempt from” the titling and registration requirements. The option of DMV to issue documents of title and registration to such vehicles is, pursuant to Mr. Moomaw’s law, triggered “upon request of an owner” of one of these vehicles. Note: The stated intent of the bill was to apply the same provisions to both titling and registration, but through “clerical error” the “optional registration” section now has no mention of the group of vehicles which is “not required to be [registered] for any reason”. The vehicles which may be “optionally titled and registered” are not described in Mr. Moomaw’s law, but are listed as non-descript “categories of vehicles, types of vehicles or otherwise”. The one clear message that comes across in an otherwise vague section, is that there certainly are a lot of vehicles that wouldn’t normally be titled and registered (How many “categories” are there, how many “types”, certainly not enough to encompass all the “otherwise” vehicles? But nobody seems to know).
Putting these two groups of vehicles into a body of law which is dedicated to “vehicles operated over the highways of this state for compensation or profit” (ORS 803.030(14)(c) and 803.305(14)(c)), already constitutes a willful violation of the single subject clause at Article IV, Section 20 by someone who worked in the office of Legislative Counsel in 1985 and, as an attorney, had sworn to uphold the constitutions. Mr. Moomaw’s statutes contain far more than one subject; introduces these vehicles into a body of law that regulates an altogether different class of vehicles; and whatever is meant by the language, “categories of vehicles, types of vehicles or otherwise”, is so vague as to be void for that reason alone (Article IV, Section 21, the “plainly worded” section of the Oregon Constitution), and these reasons are in addition to the fact the bill was introduced, unconstitutionally, as a Senate Bill.
Although Mr. Moomaw’s spokeswoman, Joanne Peterson, represented to the legislative committee that these new sections were prompted in response to numerous owners pleading with the agency to issue vehicle title and registration as “a favor”, not one of the owners who were the
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supposed beneficiaries of these laws appeared to testify during the five committee hearings on SB 124 of 1985. No members of the press were in attendance either.
Mr. Moomaw’s laws were to be implemented by the adoption of administrative rules. The rule to implement the “optional titling” of vehicles was not adopted until 2005, even though Senator Jane Cease, the chair of the legislative committee who got Mr. Moomaw’s bill passed in 1985, had succeeded Mr. Moomaw in 1991 as the next DMV Director and then retired. When the “NOTICE OF PROPOSED RULE MAKING” was finally published in November of 2004, the accompanying “STATEMENT OF NEED AND FISCAL IMPACT” identified the “financially impacted parties” for the first time: “members of the general public who choose to apply for title” (Emphasis mine). Imagine choosing to be financially impacted, or as ORS 803.040 says, become “subject to all of the provisions of the vehicle code”).
Even though the financially impacted parties were now clearly identified, the DMV hearings officer, David Eyerly, who prepared the NOTICE OF PROPOSED RULE MAKING said (closely paraphrasing), “because there is no way to determine how many people will choose to title their vehicles”, I will not give notice (required by law) to the financially impacted parties of the rule making proceedings. However, most, if not all of the customarily entitled business entities were notified. Clearly, every member of the general public would “choose” to title…, or not to title.
It should be noted that never before in the history of Oregon Rule Making had “the general public” been identified as THE “financially impacted parties” (laws and implementing rules are made to regulate many “persons” but never “the people”). Of course no one showed up for the “public input” hearing that had been scheduled just a few days before Christmas 2004. Only one “person” signed up to “present data, views or arguments” pursuant to rule making law at the time of the hearing for the “financially impacted parties” on Feb. 16, 2005 (but he had inside information from a friend in ODOT). At the hearing, he was told to relinquish the microphone because the time for “public comment” was closed, even though he had signed up, as required, to testify as “an interested party”, rather than a “member of the public”. Under threat, he cut his presentation short, but not before leaving an information package for each of the Commissioners plus one for the record. The submission contained relevant pages of the “legislative history” of Mr. Moomaw’s Senate Bill 124 of 1985.
The resulting rule did NOT describe the vehicles which might be titled “upon request of an owner”, NOR even the class of owners who might request, although they had been identified in the STATEMENT OF NEED AND FISCAL IMPACT just three months earlier. Notwithstanding the vagueness of the statutes and the rule itself, the rule was certified finally adopted on February 16, 2005, approximately 20 years after Mr. Moomaw admitted that the titling and registration of most vehicles had never been authorized by law (actually the record of committee meetings reveals that the legislators were never told that the vehicles belonged to “the general public”). DMV personnel
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took NO notice of the new rule, and subsequent conversations with public members who showed any interest were rudely terminated, sometimes with a show of force.
Time for a reality check: Mr. Moomaw’s law included a section about the effect of titling a vehicle, now encoded at ORS 803.040. Any member of the general public who might choose, wittingly or not, to title his or her personal use vehicle would thereby make the vehicle “subject to all of the provisions of the vehicle code” under this section. This is exactly what Mr. Moomaw admitted was “not authorized in current law”, and that was supposed to be fixed with his Senate Bill 124 and implementing rules. Being subject to all of the provisions of the Vehicle Code means registration plate, driver license, motor vehicle fuel tax, parking meters, “mandatory insurance” and of course, traffic tickets. Basically, the idea was, that if a member of the general public chose to sign up, he or she would be expected to do what ”motor vehicle operators” do, or pay fines for non-compliance.
A State Representative, prompted by a constituent, approached the Office of Legislative Counsel, which is charged with reviewing rules to assure conformity with legislative intent. The legislator pointed out rule vagueness and attendant problems with program accessibility to the general public. In addition, rule adoption irregularities were brought to the attention of Legislative Counsel, Dexter Johnson. In spite of the general non-effect of the rule on agency practice, Dexter Johnson wrote a brief opinion to the effect that the rule which resulted from an unconstitutional revenue raising bill was just fine. Presumably, the vagueness of the rule accurately conformed to the vagueness of the authorizing statute, but extortion, the rule’s true intent, was studiously avoided.
“Optional registration”, as envisioned by Mr. Moomaw, was not visited until 2009 when a “financially impacted party”, member of the general public, ostensibly with standing under rule making laws to “propose a new rule, or amend or repeal an existing rule”, submitted a proposed rule predicated on an assumption that the authorizing statute was legitimate. The proposed rule(s) would have also had the simultaneous effect of repealing and replacing the 2005 “optional titling rule”. The proposed rule highlighted the need for anyone “requesting” to title and register a “vehicle not subject to [mandatory] titling and registration”, to be fully informed of the implications of their choice, which is that the vehicle then becomes “subject to all of the provisions of the vehicle code”, including privilege fees, taxes and fines, which had been the goal of the Minor Court Rules Committee and their executive branch member, Mr. Moomaw.
ODOT’s Director, Matthew Garrett, prepared a “Request for Action” directed to the Transportation Commissioners who, by law, vote on rules only after the prescribed hearings. Mr. Garrett requested that the Commissioners vote to deny themselves an opportunity to consider the proposed rule, prior to any hearings being scheduled. In preparing for the quarterly Commissioner Meeting of October 21, 2009, Mr. Garrett told his Rules Coordinator NOT to place a copy of the
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proposed rule in the information package that is routinely made available to the Commissioners prior to each vote. The fact that the Commissioners voted to not consider the proposed rule, and that their vote was taken absent any required input, is a matter of public record. This can be confirmed by using the public record law: Request the “Agenda of Oregon Transportation Commission Meeting of October 21, 2009 and Matt Garrett’s “Request for Action” in regard to optional titling and registration.
Neither the author of the proposed rule, nor his state representative, Jules Kopel Bailey, who had overseen its drafting, were notified that the Commissioners would be asked to refrain from considering the proposed rule on October 21, 2009. When the author was notified a month later that the Commissioners had voted to dispense with the proposed rule, he began to inquire and was soon arrested for questioning authority by the US Marshal’s Fugitive Recovery Team who found him at his office. He ended up being incarcerated 300 days, including four and a half months at the Oregon State Hospital before being released, charges dismissed, without a single appearance in court to make a record of the events leading to his arrest.
While the interested party was being held, ODOT initiated a new round of rulemaking to repeal and replace the optional titling rule and to create an optional registration rule. The lack of a registration rule to legitimize the sale of license plates to members of the general public who might request was a glaring hole in the scam. However, in view of Legislative Counsel’s approval of the 2005 “optional titling rule”, one might wonder why that rule was also scrapped and replaced at the same time. The working hypothesis of this writer is that the STATEMENT OF NEED AND FISCAL IMPACT that particularly identified the financially impacted parties as “members of the general public who choose to apply for title” (apparently any vehicle they might own) needed to be buried under another layer of paper, and fast.
The new rules, which were certified finally adopted on May 18, 2012, provide for the optional titling and registration of fire trucks! That’s right, the owners of fire trucks may now choose to pay the titling and registration fees and by doing so, make their vehicles “subject to all of the provisions of the vehicle code”. DMV “certificates of title” (not actual title) are also one proof of ownership. Now, when the people of a city or town lose their fire trucks, or one is stolen, “owners” who have chosen to purchase a “certificate of title” can use it to help get the missing fire truck back. Imagine the popularity of a rule like this!
The absurdity of the notion that fire truck owners would choose to pay to become regulated so that they have to stop for traffic control devices on the way to a fire reflects the measure of disdain that the rule makers have for the victims of their scam. Inquiry was made as to whether DMV actually gave fire service districts “notice” of the rule making process in April, 2013. As of August 1, 2013, no one has reported. How many fire truck owners will choose to title their vehicles… no one knows.
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Fire trucks are in the same list of vehicles as “solely for personal use” vehicles, the list is encoded under ORS 801.208. This section describes subgroups of “commercial vehicles” called “commercial motor vehicles” but at subsection 2, “commercial motor vehicles” are contrasted with vehicles that are NOT subject to the titling requirement, including the fire trucks and solely for personal use vehicles. The statutory language is clear. There are “categories of vehicles, types of vehicles or otherwise vehicles” out there. But wait, which “category or type of vehicle” is a fire truck?
CONSIDER THE FOLLOWING IN ANSWERING THIS QUESTION
In corroboration of the titling and registration requirements, ORS 801.305 says
the general public “use” their vehicles on the highways of this state “as a matter of RIGHT” (no hoops to jump through). The all powerful people, through their Legislators, reaffirmed this law as recently as 2007, but… ORS 801.050 says, “Subject to compliance with the motor vehicle laws of this state, owners and operators of motor vehicles are granted the PRIVILEGE to use the highways of this state”. This language was included in the Vehicle Code at the time of the 1980s revision.
In 1999 the executive branch, through its Department of Transportation, adopted Oregon Administrative Rule 735-016-0020 to implement the revised code having to do with the titling and registration and driver licensing chapters of the Vehicle Code. After amending it was, again, certified effective January 1, 2002 . At subsection (7) of that rule, “Operating motor vehicles in Oregon”, is defined to mean, the physical operation of vehicles for BUSINESS purposes.
ORS 221.485 is an encoded “finding of the Legislative Assembly” to the effect that the operation of “for hire vehicles” and the “owners and operators” thereof are matters of public concern, such that they are found to be proper subjects of regulation by government.
SUMMARY OF RELEVANT FACTS:
The Judicial Branch of government, through its agency, “Minor Court Rules Committee” and its executive branch member, DMV Director David P. Moomaw, has admitted that there are many vehicles that are not subject to the titling and registration requirements, and consequently are not “subject to all of the provisions of the vehicle code” (can’t get traffic tickets). To confirm, consult the most recent and longest serving Executive Secretary of the Minor Court Rules Committee, Douglas M. Bray, now Trial Court Administrator for Oregon’s largest Circuit Court, in Portland (he served in this capacity approximately 20 years but retired 2015).
Legislative Branch staff person, former assistant Legislative Counsel, Joan Robinson drafted Mr. Moomaw’s revenue preserving measure and assigned it a Senate Bill number. The Senate Bill number had the effect of precluding analysis by the Legislative Revenue Office of Oregon’s
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LARGEST revenue bill such that it could never be lawfully enacted, even if nothing else was wrong with it. Inasmuch as it was ex post facto, making all previously unlawful titles legal, it was worth untold billions of dollars.
The Executive Branch knows full well the implications of what is going on, as reflected in the ODOT rule making processes acknowledging that only “members of the general public who choose to apply” will be financially impacted by titling their vehicles (now repealed and replaced and deliberately obscured by the rule that “allows” fire truck owners to title and register their vehicles) AND that “’Operating motor vehicles in Oregon’ means the physical operation of vehicles for business purposes”. For confirmation of any and all of the above information, the reader is referred to ODOT’s Rules Coordinator. Make request for the files related to OAR 735-022-0120 (the 2005 optional titling rule); OAR 735-022-0130 (the 2012 optional titling rule for fire trucks); OAR 735-032-0055 (optional registration rule for fire trucks); and OAR 735-016-0020, containing the definition of “Operating motor vehicles in Oregon” at subsection 7. Be sure to ask for the complete file, including exhibits submitted to the Transportation Commissioners and the Secretary of State filings. Tell the Rules Coordinator that it is in the best interest of the public for her to provide this information, which is grounds for waiver of fees.
Note: The new rules do contain a “Red Herring” which has not been discussed. However, it is probably best to give serious researchers a heads up. The rules, in addition to fire trucks, refer to “off road vehicles”. They have not been included in the discussion to this point because they are outside the definition of “Vehicle” as found in the Vehicle Code at ORS 801.590: “Every device in upon or by which persons or property is or may be drawn or transported on the public highway, and are propelled by any means”.
THIS IS A SUBSEQUENT AMENDMENT OF 2014
In September of 2013, Governor John Kitzhaber’s Office was mailed a copy of the above document and asked the question that all Oregonians need an answer to: Now that fire trucks AND solely for personal use vehicles have had rules adopted which allow them to become regulated, but because the Optional Titling Rule under OAR 735-022-0120 has been repealed, can members of the general public still legitimately title their vehicles and thus become “subject to all of the provisions of the vehicle code”? As of September 15, 2014, one year later, Oregonians still wait for the answer.
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This writer is available for rendering sworn testimony. He was responsible for initiating ODOT’s “optional titling” rule making process in 2004 and the only “interested party” to testify;
He wrote the proposed “optional titling and registration” rule of 2009; was arrested for questioning authority, but denied a trial which prevented him from making a record of these events; He interviewed assistant Legislative Counsel Bradd Swank after having read his book, “Introduction to the Vehicle Code, 1986 – 1987”, on how and why he drafted the present vehicle code, including the optional titling and registration statutes; He has made many Public Record Law Requests to agencies of the state and governmental subdivisions in the course of researching the misapplication of the Vehicle Code to the traveling public; Being possessed of rather obscure information, he has been called and appeared as an expert witness in Traffic Court on the application of the motor vehicle laws on a number of occasions and is yet to be rebutted.
Oregon’s Department of Justice Spokesman, John Ellis initially informed this writer of the discrepancy between the commercial motor vehicle laws and traffic enforcement policy to ticket the traveling public in 1995. This writer has made motor vehicle law his focus since then.
Dated: April 18, 2013, updated January 25, 2014, September 15, 2014, and April 2, 2016 for the website, Scanned Retina, and again May 22, 2017.
Richard L. Koenig
email@example.com Please use “MOOMAW” in the subject line for inquiries about this story.
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