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  Civil Number 49116. Second District, Division 1. December 28, 1976.

PAUL C. ANACKER, Plaintiff and Respondent, In Pro Per

v

HERMAN SILLAS, as Director, etc., Defendant and Appellant.

[Comment by Palaschak: The case is very distinguishable from mine; Anacker caused his crash; I did not cause mine; the other driver rear-ended me and she goes unpunished. The following case was prosecuted in pro per by Anacker. It is no wonder that Anacker was unable to fully grasp the intricacies of years of manipulative and deceptive legislation promoting the agenda of the insurance and DMV industries at the cost of civil liberty and uncomplicated laws. In other words, Anacker was up against a group of statutes whose logic can only be understood by examining what would be the result if they were a little different; and then analyzing the reason for the abnormality in the statute. Analysis of the abnormality is done by comparing the logical path of a hypothetical prosecution applying principles of common law criminal procedure that are obscure even to trained lawyers. It is no wonder that Anacker lost. As a general principle of stare decisis, a decision which is the unfortunate result of an uneducated litigant must not logically become precedent - especially when the decision contradicts a decision of a higher court - the Bell decision.]

  SUMMARY

 The trial court granted a writ of mandate to petitioning holder of a driver's license commanding the Director of the Department of Motor Vehicles to set aside its orders suspending petitioner's driving privilege, under Vehicle Code section 16070, for failure to establish proof of financial responsibility. Petitioner has been involved in a motor vehicle accident in which he suffered bodily injury. The accident report revealed that petitioner did not possess automobile liability insurance, and he did not otherwise demonstrate financial responsibility. On receipt of these facts, the Department of Motor Vehicles ordered petitioner to obtain or show proof of financial responsibility. On his failure to do so, an administrative hearing was held, as a result of which Petitioner's driving privilege was suspended. (Superior Court of Los Angeles County, No. C-142257, Norman R. Dowds, Judge.) [Palaschak: My case is distinguishable in that Anacker was at fault and I was not at fault. My objection is that the legislature defines fault unnaturally. Such abuse of language is unconstitutional. However, describing the objection in terms of classification systems is more consistent with traditional constitutional terminology.]

 The court of appeal reversed. [Petition for hearing by the Supreme Court was denied. - Note by Palaschak.] The court [of appeal] held that the construction placed on Vehicle Code section 16070, subdivision (a), by the Department of Motor Vehicles, requiring proof of financial responsibility when there was bodily injury to any person involved in an accident, rather than any person other than the driver whose driving privileges were at issue, was entitled to great weight. The court further held that financial responsibility provisions were more fully served if proof of financial responsibility was required without respect to who suffered the injury. Addressing constitutional questions, the court held that one's driving privilege is not a "fundamental right" so as to demand heightened judicial scrutiny in the face of an equal protection clam, that a classification requiring a showing of financial responsibility based on involvement in an accident was not a "suspect" classification and that the classification possessed some rational relationship to a conceivably legitimate state purpose. (Opinion by Judge Lillie, with Presiding Judge Wood, and Judge Thompson concurring.) [Note by Palaschak: The analysis of the statutory law in this case is complex because of the actions of a cadre of insurance industry and DMV lawyers with their own agenda. What is not so obvious is that if we simply punished people in the usual way (fine and/or jail) when they first were caught driving without insurance, many of the issues before us today would be simpler - and defendants would complain less. A fine and/or jail for the crime of driving without insurance would certainly be more acceptable than the stiff punishment for driving on a suspended license. Rationale: The insurance law provides no punishment for not carrying insurance; the general insurance law does not even make it a crime. Therefore, it would be very unfair to punish those who have a crash while ignoring all those who drive without insurance and don't have a crash. In addition, the courts could not escape facing the fault assessment issue squarely; they could not rationally punish the victim of the crash because this victim was uninsured while at the same time providing no punishment for the non-victim uninsureds driving the same highway.

 The court's grasp at the either/or fallacy of the useless distinction between a right and a privilege betrays their having not read the Bell decision. Furthermore, the court fails to address the underinclusiveness issue - the other driver in this crash does not have to show proof of insurance. Thus the statute is punitive and not prophylactic!

 

 The court ignores the wording of Bell? that says that the cost of the hearing shall not be a factor in analyzing what sort of hearing is required. In fact the DMV was unable to accommodate the multitude of hearing requests following Bell and simply refused to grant anymore hearings. However, they do have a procedure that fools people into thinking that they are having a hearing. However, hearing requirements are spelled out in the administrative procedures act and this quasi-hearing does not meet those requirements.]

 HEADNOTES

(Classified to California Digest of Official Reports, 3d Series. Headnotes test has been depublished by Palaschak because to do so would be to repeat bad law. This is a poor decision and logical. However, the entire text of the case remains.)

(1) Insurance Contracts and Coverage section 47 - Automobile Liability and Collision Insurance - Automobile Financial Responsibility Law - Proof of Financial Responsibility. - The financial responsibility law, in requiring proof of financial responsibility from drivers involved in accidents, does not require only negligent drivers to be financially responsible. While only those drivers involved in accidents of a described seriousness must prove financial responsibility, involvement in the accident does not create the obligation to be financially responsible; it merely provides the occasion for demonstration that a pre-existing obligation has been met. [Wrong. The court completely misses the point here. The law does not punish for failing to have insurance; it merely triggers additional proof requirements that are punitive, and as such, must meet the same due process requirements as imposition of jail - namely, fault. The punishment is additional burden upon the people involved even if they were not at fault - and it fails to impose that same burden for the insured party; the insured party does not have to prove financial responsibility. There are several elements of the fallacy here. 1) This law is punitive but the punishment is not a fine but something worse - the insurance monkey on our back. 2) The law is deceptively crafted by the insurance industry to give lip service to due process. 3) The insurance requirement is not equally enforce; the insured driver may drop his insurance immediately but not the uninsured driver - even if (as would be the result of logical, free market-induced purchases) the insured driver is the one at fault - as might very well be the case since driving ability can be foreseen.) Note by Palaschak.]

(2) Constitutional Law section 87 - Equal Protection - Strict Standard of Review for Suspect Classifications of Classifications Touching on Fundamental Interests - Driving Privilege as "Fundamental Right." - While one's driving privilege is an "important interest," it is not a "fundamental right" of the kind demanding heightened judicial scrutiny in the face of a claim of denial of equal protection. [Incorrect conclusion. All deprivations of property interest trigger due process. Use of the word "heightened" simply salutes a logical fallacy of either/or and thus avoids saying directly that this court thinks that driving is not important enough to even grant a hearing.]

(3) Constitutional Law section 87 - Equal Protection - Strict Standard of review for suspect classifications or classifications touching on fundamental interests - driving privilege as "fundamental right".

(4(a), 4(b)) Constitutional law section 83 - Equal Protection - classification - judicial review - rational relationship test.

(5) Constitutional law - equal protection.

(6) Constitutional law - Classification.

(7) Insurance Contracts and Coverage - Weight accorded administrative construction.

(8) Automobiles and Highway Traffic - Failure to provide proof of insurance.

  ___________________________________________________________

Counsel:

Evelle J. Younger, AG, and Thomas Scheerer, DAG, for DMV.

Paul C. Anacker, pro per.

  OPINION

Judge LILLIE: The Director of the Department of Motor Vehicles appeals from judgment granting peremptory writ of mandate commanding him to set aside an order suspending respondent's driving privilege under section 16070, Vehicle Code for failure to establish proof of financial responsibility.

 The facts are not in dispute. In January 1975 respondent was involved in a motor vehicle accident in which he suffered bodily injury. [Palaschak: Although the facts are not clear, it appears that this case is distinguishable from Palaschak's in that Palaschak was clearly not at fault whereas Anacker was at fault.] An accident report was made and revealed that respondent did not possess automobile liability insurance; he did not otherwise demonstrate financial responsibility,then or since. Upon receiving information of these fact the department of motor vehicles ordered respondent to obtain and/or show proof of financial responsibility. Upon his failure to do so, respondent received notice of suspension of his driving privilege. At respondent's request an administrative hearing was held, and suspension was stayed pending the outcome of the hearing. the referee found that respondent had been in a motor vehicle accident which did not result in property damage in an amount greater than $250 but in which respondent had suffered bodily injury; and that respondent had not established proof of financial responsibility. Respondent's driving privilege was suspended.

 Respondent thereupon petitioned for writ of mandate herein, contending, among other things, that the equal protection provisions of the state and federal constitutions prohibit the suspension of an uninsured motorist's license without a prior showing of fault on his part. The trial court concluded that this contention would be correct if the financial responsibility law (vehicle code section 16000 et seq) applied to respondent in the circumstances, but construed the law to require proof of financial responsibility "when a driver involved in an accident causes bodily injury or death or the requisite amount of property damage to another person."

 Appellant [DMV] considers the issue to be whether the financial responsibility law requires proof of financial responsibility when a driver involved in an accident causes injury to himself. Respondent [driver] focuses on whether the law constitutionally can require proof of financial responsibility of a driver involved in an accident without some showing of fault on his part.

 

 The former California financial responsibility laws created a fault-based scheme. (Orr v Superior Court 71 Cal 2d 220, 226, 454 P 2d 712; Escobedo v State of California 35 Cal 2d 870, 878, 222 P 2d 1.) [Palaschak: In Ruttenberg, In pro per (1987) 194 Cal App 1284, a physician returned to the country, had a crash, and posted $9000 cash - enough to pay for the damages. Nonetheless he was found "at fault" as implicitly defined.] The United State Supreme Court in Bell v Burson (1971) 29 L Ed 2d 90, 402 US 535 that where a suspension of a driver license depends on fault, due process requires a presuspension hearing which [that] includes consideration of this issue. Our Supreme Court in Rios v Cozens (1973) 9 Cal 3d 454, 509 P 2d 696 (Originally 7 Cal 3d 792, 499 P 2d 979, vacated and remanded at 35 L Ed 2d 398, 410 US 425, on remand 9 Cal 3d 454, the prior opinion reiterated and reinstated) followed Bell in declaring the California fault-oriented scheme to be constitutionally invalid in the absence of provision for meaningful presuspension hearings. [Note by Palaschak: Palaschak's hearing of approximately 23 March 1992 was not up to Bell standards because the hearing officer (who was a low level DMV employee - not even a college graduate) did not consider fault and punished Palaschak for being the victim of a negligent driver - while failing to punish the negligent driver. Furthermore, there was no police report or any proof that indeed there was any crash. The hearing officer had never heard of the Bell decision.]

  "Following Rios, over 20,000 persons have requested such hearings, and the Department of Motor Vehicles, unable to conduct adequate hearings due to a lack of funds and manpower, stayed all proceedings on revocation until the legislature either changed the law or provided the funds." - Review of Selected 1974 California Legislation (1975) 6 Pacific Law Journal 335, 340.

[Note by Palaschak: Note well that the United State Supreme Court specifically ruled that administrative expense is not sufficient excuse for denying due process. The Supreme Court quoted from Kelly v Goldberg 25 L Ed 2d at 295, 397 US at 261:

  "While the problem of additional expense must be dept in mind, it does not justify denying a hearing meeting the ordinary standards of due process." - Bell v Burson 29 L Ed 2d at 95.

Observe that the discreet and insular non-lawyer thinks he deserves some sort of hearing but has no inkling that 1) 20,000 people requested such a hearing in 1972; 2) that almost half of Californians drive uninsured; 3) that the insurance lobby is among the top 4 lobbyists in the legislature and is drafting legislation favoring the insurance industry. Consumerism would seem to mandate some sort of warning regarding the right to a hearing and the significant history of the insurance rebellion - especially since most of the people most adversely affected were not born yet when the rebellion occurred in 1972.] In 1972 the legislature enacted as an interim measure Vehicle Code section 16080.5(a) which provided that upon receipt by the DMV of a request for a hearing regarding prejudgment suspension for failure to prove financial responsibility, provisions of the law relating to suspension would be stayed. (1972 statutes, chapter 1179, section 1)

 In 1974, the legislature repealed the old vehicle code division 7, chapter 1, and enacted the present sections 16000 to 16075. (1974 statutes, chapter 1409, sections 7 and 8). The legislature left no doubt that fault was no longer to be at issue [note by Palaschak: The court is absolutely wrong here; the court completely ignores the vast body of tort law. California retains a fault-based system. The citizens rejected no-fault insurance (but that rejection was after this decision and therefore casts even more doubt upon the continuing validity of this decision if it was ever valid). The court here buys into the Nixon-era deceptive legislation attempting to distinguish California's system from the system discussed in Bell.] when the question of the financial responsibility of a driver involved in a motor vehicle accident arose: "The legislature finds that as a result of the difficulty of ascertaining a likelihood of fault [Palaschak: Fatal premise; we ascertain fault in court's every day; almost any driver can make a fault determination.] in connection with vehicle operation, the number of financially irresponsible motor vehicle owners and operators has increased dramatically. [Non sequitur; The result of difficulty in decision would be wrong decisions; the ultimate liability would fall to one party or the other; the problem is that drivers choose to drive uninsured; this "problem" is the genius of the free market system.] The legislature further finds that such fault determinations, and the costs associated therewith, do not further the purpose of the financial responsibility laws. [Note by Palaschak: Bell says that the cost of administrative hearings is subordinate to the constitutional mandate of due process. Application: The legislature remains oblivious to the import of Bell.] Therefore, the legislature declares that it is the policy of this state that those owning or operating motor vehicles on the streets or highways of this state shall be financially capable of providing monetary protection to those suffering injury to their person or property by reason of the ownership or use of such vehicles without regard to the negligence, liability, carelessness, or culpability of the owners or operators thereof, [Note by Palaschak: This is the heart of Judge Lillie's logical fallacy. Judge Lillie ignores the entire history of the tort system, California law, and the flesh of the Bell decision and, instead latches on to this piece of legislative dictum to erroneously find that California has a fault based system.] and further that such capability shall be deemed a concurrent responsibility of such motor vehicle ownership or operation. [Note by Palaschak: The legislature is deceiving us. They are "talking out of both sides of their mouth." If the legislature really intended what they so declare here then they could simply make it a crime to drive without insurance. This they have not done!! The basis insurance law could easily have a penalty attached - but no penalty attaches for driving without insurance. In the jargon of constitutionalists, the means-end matching is defective. In other words, the statute is simultaneously overinclusive and underinclusive. Common sense and the Supreme Court permit a degree of mismatch. But the mismatch here is intentional, egregious, easily rectified] The legislature further declares that it is the policy of this state that those owning or operating motor vehicles on the streets or highways thereof shall evidence such financial capability by the methods specified in this act." (1974 statutes, chapter 1409, section 1.) (Italics added by Judge Lillie.)

 Respondent [driver] would have us hold that the legislature impermissibly excluded fault as an issue at the presuspension hearing. Essentially his argument is that by requiring proof of financial responsibility from those drivers involved in accidents but not from those not so involved creates a classificatory scheme which bears no rational relationship to the purpose of the legislation. But respondent's [driver's] position is premised on too narrow an application of the financial responsibility law. [Note by Palaschak: Wrong. Rather, Judge Lillie's premise is based on an absolutely tunnel-vision view of the meaning of the term "fault-based".] (Headnote 1) The law does not require that only negligent drivers be financially responsible; rather, it requires that "Every driver of, and owner of, a motor vehicle shall, at all times, maintain in force one of the forms of financial responsibility specified in section 16021." (Section 16020.) It is true that only those drivers involved in accidents of the kind described in section 1600 must prove financial responsibility, but involvement in the accident does not create the obligation to be [Note by Palaschak: Here is the logical fallacy at its heart; if the legislature intended 16020 to be effective then it would have put teeth into it. Instead, only the portions of the law that trigger after a crash constitute California's insurance law. The purpose of 16020 is mere pretext - designed specifically so that California could appear to require insurance by all drivers - designed specifically to circumvent Bell. Query: was there an equivalent provision in Illinois law before Pollion? If so, then Rios remains viable. Was there an equivalent section in California law before Rios? If so, then Rios remains valid. Regardless, 16020 does not define California's system to be non-fault based; 16020 has nothing to do with California law because it is completely ineffective by design - a non-law created merely for pretext.] financially responsible, it merely provides the occasion for demonstrating that a preexisting obligation has been satisfied. [Palaschak: Wrong. Very wrong. If this section is the only effective section, then, by operational definition, it is California insurance law. Furthermore, it is eminently clear that California's system is fault based; simply consider the determination to be made by statute - if there was a crash of certain repercussions; no crash - no fault; Indeed there is a fault based system. The DMV in 16020 merely changes the fault system to include more faults. Nonetheless the system is far from being fault-neutral. Under 16020, to paraphrase George Orwell, some faults are more equal than others.] Thus respondent [driver] misstates the purpose of the law as being to assure that "negligent drivers, that is, those likely to cause future accidents are financially responsible." Instead the assurance is that all drivers, negligent or not, are financially responsible. [Palaschak: Wrong. The statute does not apply to all drivers - only to some of the drivers who were involved in the crash - not even all of the drivers who were involved in the crash. There is no question that there is a classification system. And there is no question that the first rational question in such a system should be fault.]

 (Headnote 2) While one's driving privilege is an "important interest" (Bell v Burson 402 US 535,539, 29 L Ed 2d 90, 94, 91 S Ct 1586) we do not conceive it to be a "fundamental right" of the kind which [sic, that] demands heightened judicial scrutiny in the face of an equal protection claim. [Palaschak: The U.S. Supreme Court addressed this issue in Bell saying "Relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated 'right' or 'privilege'". Furthermore, the bifurcation between "strict scrutiny" and "rational basis" is a contrived distinction - the either/or logical fallacy. The Supreme Court discarded the distinction long ago - and even when it used the distinction, it used it as an analytical tool - not as a basis of fundamental law to deny applicability of a superior concept.]

(Headnote 3) Nor do we perceive the classification based on involvement in an accident to be in any way "suspect".Serrano v Priest, 5 Cal 3d 584, 597 487 P 2d 1241, 41 ALR 3d 1187 - Forbids invidious discrimination based on wealthALR 3d 41:1187 - Wealth as suspect criteria for discrimination. (Headnote 4) Accordingly, if equal protection analysis is to be employed, we must apply "The basic and conventional standard for reviewing economic and social welfare legislation . . .(which) manifests restraint by the judiciary in relation to the discretionary act of a co-equal branch of government; in so doing it invests legislation involving such differentiated treatment with a presumption of constitutionality and requires merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose." [Palaschak: What is rational about punishing the person who was the victim and not punishing the person who caused the crash? Furthermore, Judge Lillie gloms on to the wrong principle.] Westbrook v Mihaly (1970) 2 Cal 3d 765, 784, D'Amico v Board of Medical Examiners (1974) 11 Cal 3d 1, 16, 520 P 2d 10). (Scwalbe v Jones, 16 Cal 3d 514, 517, 546 P 2d 1033.) (Headnote 5) Respondent must bear the burden of demonstrating the alleged invalidity of the scheme. (Id. at page 518) He has failed to do so. The legislature could have required proof of financial responsibility as a condition precedent to the issuance of a driver's license [Palaschak: Sure, we are supposed to believe that this 1933 case is still valid! In 1933 bar associations still denied admission to women! That was 60 years ago! Discretion is the better part of valor; the insurance lobby feared the wrath of the populace and did not dare attempt a law that everybody would notice. Now they try to pick their opponents by the various classifications in the complex operational scheme of California's financial responsibility law.] (Ex Part Poresky (1933) 290 US 30, 32, 78 L Ed 152, 153); instead it has required that proof upon involvement in an accident. [Palaschak: Wrong. It does not require proof upon an accident; it requires additional proof for 3 years after the accident - but only by those who were at fault (by having the accident of certain magnitude) and uninsured.] Effectively, then, the legislature has opted for a random spot-check on the financial responsibility of California drivers. [This is not a spot check; it is a mis-matched means-end scheme.]

 In some sense a person may rightly complain that it is unfair for him to have to establish proof of financial responsibility while others, not involved in an accident, do not. [Palaschak: Judge Lillie misses the point. Even others involved in the accident (like the currently insured) do not have to provide proof of insurance in the 3 years hence - and neither do sick people, or professionals, or government workers, or a multitude of other exceptions.] In the same sense it might be unfair to audit the tax return of one person and not of another (26 USC 7602; see US v Powell (1964) 379 US 48, 57, 13 L Ed 2d 112, 119) or to conduct a passenger vehicle equipment inspection on one automobile but not on a second one. (Vehicle code section 2414.)[Palaschak: The insurance law is not random; every victim of this unfair classification scheme is punished by being required to purchase insurance for 3 years.] But "unfair" is not "unconstitutional". [Palaschak: Wrong! This is an example of outdated thinking.] While one might propose other, perhaps better ways to assure that owners and operators of motor vehicles are financially responsible this is not to say that the method adopted by the legislature is irrational. (Headnote 6) Weighing of the benefits and burdens of alternative plans is a peculiarly legislative task. (Headnote 4b) As was observed by the court in Boykin v Ott, 10 Ore App 210, 498 P 2d 815, 822, app. dismissed 411 US 912, 36 L Ed 2d in which a conclusion similar to our own was reached: "Our role is not to pass on the wisdom of a statutory scheme but only to determine whether there is the constitutionally-required minimum rationality to the classification it creates." [Palaschak: No question; the rationality of this scheme is "minimum" but the constitution does not require the minimum and we won't except devious laws promoted by special interest groups with the help of self-serving bureaucrats who can think only of their job security.]

 Turning to the issue framed by appellant, we initially note that there does not appear to be any reason why the legislature could not have required proof of financial responsibility where the requisite amount of property damage or bodily injury was sustained by the very individual whose driving privilege is at issue. Some state have expressly provided for such a result. The further question, however, is whether the financial responsibility law does so provide. [Palaschak: Query the validity of requiring victims of violent, non-driving, crimes to stay in the house at night to avoid the cost of their care should they become victims again.]

 The section refers to a motor vehicle accident resulting in "damage to the property of any one person . . . or in bodily injury or in the death of any person." (Italics added by Judge Lillie.) (Vehicle code section 16070(a)) (Headnote 7) Obviously the DMV construes this language literally to include bodily injury to any person involved in the accident, rather than to any person other than the driver whose driving privilege is at issue. Even were this construction not entitled to great weight (Holloway v Purcell, 35 Cal 2d 220, 226, 217 P2d 665, certiorari denied 340 US 883, 95 L Ed 641) we would reach the same conclusion. (Headnote 8) Inasmuch as we have viewed the occurrence of an accident of certain gravity as the occasion for examining the compliance of the involved drivers with their preexisting statutory obligation to be financially responsible [Palaschak: There is no such obligation; it is not a crime to drive uninsured; no punishment is prescribed and although the codes provides a certain minimum punishment, the law is designed to preclude enforcement; indeed, Palaschak was never cited for failing to have insurance!], it is clear that the law is more fully served when proof of financial responsibility is required without respect to who has suffered the injury. Admittedly, the legislature could have narrowed its sampling of drivers in a number of ways, including one which would exclude respondent and others similarly situated from the category which must prove financial responsibility. It can still do so. But until that time even the person who suffers bodily injury in a motor vehicle accident may be obliged to demonstrate his financial responsibility.

The judgment is reversed.

Presiding Judge Wood and Judge Thompson concurred.

A petition for a rehearing was denied January 21, 1977 and respondent's petition for a hearing by the supreme Court was denied 23 February 1977.