Legal Reality Newsletter – 2 February A. D. 2012

2 February A.D. 2012

Read the ticket before signing.

Sounds simple enough.

Read the ticket before signing.  Front side, back side, third side (if there is one).

Some of the STATEs are figuring out that “we’re” figuring out that they NEVER satisfy Due Process when it comes to Notice.

There is no Notice without the paperwork.  A judge can “tell” the defendant what the charge is until that judge is blue in the face, and nothing about Notice will have been satisfied.  Notice isn’t satisfied without the paperwork.

There’s a basic sequence of events.  First there has to be something actionable.  Then, a charge has to be made.  Then, a charging instrument has to be printed out (from the computer) and signed by the (at least “a”) witness.  (Clerks are not witnesses.  If a clerk is the charging witness, then that clerk can’t get anywhere near that case under the disguise of Custodian of Records, AND there’s some question as to whether the court, itself, is now the charging witness, given that the Clerk is the witness solely as a by-product of employment with the court.  More details at some other time.)  Then, that paperwork has to be served on the defendant “at a meaningful time and in a meaningful manner” to as to allow a “meaningful opportunity to respond.”  

As a practical matter, how in the world does anyone enter a responsive plea until one has Notice of what one is charged with having violated?

To enter that plea is to waive Notice.

Where there is no Notice, to pretend that there is is to waive Notice.

To agree to enter that plea, any plea, may also constitute waiver of Notice.

Read the ticket.

Some jurisdictions are now including language in addition to the agreement to appear.  The agreement to appear is the equivalent of a personal recognizance bond.  Some people go into orbit over that thought.  That thought isn’t  worth much more than a passing glance, actually.  Without the personal recognizance bond, the ticketing officer has the authority also to become the arresting officer.  Some would-be defendants play the game that way.  They go to jail for a few days and the matter is dropped.  That’s not what makes good sense to this author, but to each his own.

The additional agreement language may have to do with entering a plea.

Where a form has language that one is not interested in agreeing to, the solution is to “negotiate” that form.  How does one “negotiate” a form?  By using a pen and drawing a line through the part that one isn’t interested in agreeing to.

To attempt to negotiate and to be told, “You can’t do that,” is to get evidence of “adhesion.”  Without the effort to negotiate, there is no “adhesion.”  The instant that negotiations are tried and not permitted, then there’s evidence of “adhesion.”  Where the negotiation is not objected to, then there’s nothing more agreed to than the timely appearance (whether by paperwork or also in person).  (Not agreeing to appear is not sensible. No doubt someone will press this to that limit.  If so, take good notes about what happened and be sure to share that experience.)

Read the ticket.

One does NOT have to agree to enter any plea.  Agreeing to appear is one thing.  Agreeing to enter a plea is completely another.

Read the ticket.  If necessary, “negotiate” that ticket so as to preserve the right of Due Process, starting with service of the paperwork containing the charges alleged.  If one agrees to enter a plea, because that’s the language pre-printed on the (back of) the ticket, the one may very well have waived one of the best defenses going:  violation of Due Process — no Notice.

Harmon L. Taylor
Legal Reality
Dallas, Texas

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