IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
RODNEY 0. SKURDAL,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable William Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rodney 0. Skurdab, pro se, Gillette, Wyoming
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Kathy Seeley, Asst. Atty. General, Helena
James Yellowtail, County Attorney, Hardin, Montana
Submitted: November 10, 1988
Decided: December 30, 1988
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Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.
Rodney 0. Skurdal was convicted in the Thirteenth Judicial
District, Big Horn County, of operating a motor vehicle without a
valid driver's license and exceeding the posted nighttime speed
limit.
Skurdal refuses to procure and carry a driver's license on
various constitutional grounds. He raises twenty-eight issues on
appeal. We have reduced those to one basic question: Were any of
Skurdal's constitutional rights violated?
We hold that none of Skurdalls constitutional rights were
violated and that it is a proper exercise of the State's police
power to require a valid driver's license before one may operate
a motor vehicle on the public highways in Montana.
Judgment affirmed.
It should be noted here that the State was not required to
file a response brief, because Skurdalls appellate handwritten
brief was not properly filed with this Court. Skurdal appears pro
se in forma pauperis. We have accepted Skurdalls appeal, despite
its irregularities, because it contains frequently raised arguments
which need to be finally settled.
We have subdivided Skurdal's voluminous brief and have
organized his various arguments in the following manner.
I. The Driver's License
Skurdal asserts that it is unconstitutional for the State to
require him to procure a driver's license before operating a motor
vehicle on the public highways. According to Skurdal, it violates
his constitutional right to freedom of travel and right to use his
private property (his car) without governmental interference.
Lastly, he asserts that the state legislature is unconstitutionally
encroaching on his absolute constitutional rights and that the
judiciary is blindly accepting these laws and further encroaching
on his rights. We disagree.
a. Rights are not absolute
One must begin with the basic premise that constitutional
rights are not always absolute; rather, there are just
constitutional safeguards which must first be met before a
government may infringe on an individualtsrights. For example,
the private property interests Skurdal asserts are not absolute,
but the Constitution guarantees that due process will be had before
an infringement occurs. Even such fundamental rights as those
guaranteed by the First Amendment are not immune from governmental
regulation. Seward Chapel, Inc. v. City of Seward (Alaska 1982),
655 P.2d 1293. Most noteworthy is the fact that a city may always
impose reasonable restrictions on the time, place and manner in
which such First Amendment rights are exercised.
This is what Skurdal calls the encroachment of his absolute
rights and the judiciary's blind acceptance. However, this is the
law in this country. Agreeing with the law is not a prerequisite
to following it.
b. Right to freedom of travel
The right to freedom of travel, not only is not even
implicated in this case, it has not been infringed. At no time
were there any constraints by the State of Montana on this right
of Skurdal . He has at all times remained free from state
regulation and constraint, able to leave this state and travel as
he pleases. He was free to get on a plane and fly to New York,
free to take a bus back to Wyoming; he existed free of any state
interference of this right to travel.
This notion of right to travel remains wholly separate from
the right or privilege to operate a motor vehicle on the public
highways in Montana. As was stated recently by the Utah Supreme
Court, nappellantts assertion that the right to travel encompasses
the unrestrained use of the highway is wrong. The right to travel
granted by the state and federal constitutions does not include
Skurdal's appeal is without merit. This Court has already
ruled on that issue. "We have previously recognized the power of
the State to regulate licensing of drivers in the interests of
public safety." Sedlacek v. Ahrens (1974), 165 Mont. 479, 483, 530
P.2d 424, 426. Licensing is the best means to determine that
drivers meet a minimal standard of competence. It is a
justifiable, reasonable and desireable exercise of the police power
of the State.
That police power was recognized by the United States Supreme
Court as early as 1837 when it stated that Itstate and local
governments possess an inherent power to enact reasonable
legislation for the health, safety, welfare or morals of the
public.fit Charles River Bridge v. Warren Bridge Co. (1837), 11
Peters 496. That the states currently possess that police power
is unquestioned. Polk v. Oklahoma Alcoholic Beverage Control Board
(Okla. 1966), 420 P.2d 520. Montana recognizes that such police
power exists even when the regulations are an infringement of
individual rights. State v. Rathbone (1940), 110 Mont. 225, 241,
100 P.2d 86, 92. Skurdal is aware that this issue was raised and
rejected by this Court in 1986 when he, himself, was here before.
Skurdal v. City of Billings (Mont. 1986), 730 P.2d 371, 43 St.Rep.
2036, cert. denied, 107 S.Ct. 1902, 95 L.Ed.2d 508, reh. denied,
107 S.Ct. 2492, 96 L.Ed.2d 383 (Skurdal I). We will not entertain
his argument on this issue again and will deem any further pursuit
of this issue frivolous.
However, because his legal research is incomplete and his
analysis flawed, we feel the need to fully discuss his claims to
reach a final resolution of these arguments. Many of our sister
states as well recently have decided similar cases with near
identical arguments. This is obviously a growing school of thought
which has been misguided.
the ability to ignore laws governing the use of public roadways."
City of Salina v. Wisden (Utah 1987), 737 P.2d 981, 983.
c. Operating a motor vehicle: right or privilege
Many states have recently debated under similar circumstances
whether it is a privilege or a right to drive on state highways.
Predictably, Skurdal argues that it is an absolute right. We
disagree.
The ability to drive a motor vehicle on a public highway is
not a fundamental right; it is a revocable privilege that is
granted upon compliance with statutory licensing procedures. City
of Salina, 737 P.2d at 983; State v. Svendrowski (Mo.App. 1985),
692 S.W. 2d 348, 349; Texas Dept. of Public Safety v. Schaejbe (Tex.
1985), 687 S.W.2d 727, 728; State v. Coyle (1984), 14 Ohio App.3d
185, 470 N.Ed.2d 457, 458, 14 O.B.R. 203; Mackler v. Alexis (1982),
130 Cal.App.3d 44, 181 Cal.Rpt. 613, 622-623; State ex rel. Hjelle
v. A Motor Vehicle, Etc. (N.D. 1980), 299 N.W.2d 557, 562; Smith
v. Cox (Utah 1980), 609 P.2d 1332, 1333.
Whether it is termed a right or a privilege, one's ability to
travel on public highways is always subject to reasonable
regulation by the state in the valid exercise of its police power.
Gordon v. State (1985), 108 Id. 178, 697 P.2d 1192, 1193, appeal
dismissed, 474 U.S. 803, 106 S.Ct. 35, 88 L.Ed.2d 28 (1985), reh.
denied, 474 U.S. 1097, 106 S.Ct. 874, 88 L.Ed.2d 912 (1986).
Our motor vehicle codes were promulgated to increase the
safety and efficiency of our public roadways. It enhances rather
than infringes upon the citizen's right to travel. Citv of Salina,
737 P.2d at 983. The privilege properly may be revoked for
noncompliance, sections 61-5-105, -201, and -205, MCA, and such
would not be an infringement of the revokee's right to travel.
11. Liberty Interests
Skurdal claims that his right to liberty as guaranteed by the
Constitution was violated when the Montana Highway Patrol stopped
his vehicle and detained him personally. We disagree.
Skurdal was stopped by Officer Joseph Coughlin after the
officer visually observed Skurdal's vehicle traveling at a high
rate of speed and confirmed that with his radar equipment. After
being unable to produce a valid driver's license and unable to post
the necessary bond, Skurdal was arrested.
The officer had probable cause to stop the Skurdal vehicle.
Probable cause that Skurdal had committed an offense consisted of
the officerls visual observation, confirmed by the radar reading.
See also section 61-8-703, MCA, arrest without a warrant in radar
cases. Thus, Skurdal was properly stopped. Such a lawful and
proper stop can in no way be construed as a violation of Skurdal's
constitutional rights.
a. "Free man status1'
We reject Skurdal Is argument that he is a "free man" exempt
from the laws because he has "no contracts1'with either the state
or federal governments. Skurdal is a llpersonll defined by
as
section 61-1-307, MCA, and bound by the statutes in Montana which
he violated. Consent to laws is not a prerequisite to their
enforceability against individuals. Citv of Salina, 737 P.2d at
983. No persons in Montana may exempt themselves from any law
simply by declaring they do not consent to it applying to them.
We must all abide by the valid laws, even the ones with which we
do not agree, or justice will be served against us for the
violation. Accepting Skurdal's assertion of exempt status is an
invitation to anarchy. We decline that invitation.
b. Private automobile, noncommercial use
We reject Skurdal's claim that because he owes nothing on his
car (private property) and is not engaged in commercial travel, his
liberty interests are infringed by stopping his vehicle. That
claim is baseless in Montana, and we find no law in any other
jurisdiction to support it either. We will not entertain it
further.
111. Miranda Warning
Skurdal asserts that his constitutional rights were also
violated because he was not given a Miranda warning after he was
stopped. Skurdal is wrong, as we pointed out in his last case in
this Court. That issue was squarely decided by us in Skurdal I,
where we stated:
The United States Supreme Court has held that
there must be a custodial interrogation before
the Miranda warning need be given. Custodial
interrogation does not occur at a traffic
stop. ..
730 P.2d at 374.
We need not discuss this argument further.
IV. Right to Counsel
Skurdal claims that his constitutional right to counsel was
violated when he was not granted court-appointed counsel and was
not appointed the counsel of his choice. We disagree. Skurdal
wished to have an advisor, a personal acquaintance who was not a
lawyer, help contest the State in his trial on these two traffic
tickets and have the government tax dollars pay for it.
In his argument, Skurdal misconstrues this right as being
absolute and pertaining to any counsel, not necessarily legal
counsel. Skurdal is wrong on both counts.
Section 46-8-101(3) , MCA (1985), provides that appointment of
counsel for misdemeanor charges such as these is discretionary with
the trial judge. This statute provides for such appointment "in
the interests of justice.fg The Attorney General for the State of
Montana has taken the position that appointment of counsel in
misdemeanor cases is mandatory, assuming indigency, "unless the
judge has weighed the seriousness and gravity of the offense and
precludes imprisonment upon conviction, and informs the defendant
of this before trial.n A.G. Op. No. 36. This opinion is based on
the United States Supreme Court case of Arsinger v. Hamlin (1972),
407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.
Thus, the crux of the issue is whether, after a determination
of indigency, Judge Speare determined that these charges merited
incarceration if convicted. Obviously, from the record and from
the sentence he imposed, he did not entertain seriously
incarceration as an appropriate sentence. His denial of court-
appointed counsel was therefore proper.
Lastly, on this subject, no one has the constitutional right
to counsel of choice. State v. Hartford (1982), 133 Ariz. 328, 651
P.2d 856. Those who require counsel are guaranteed the effective
assistance of counsel, thus nullifying any need or right to choose
among those qualified lawyers. ~ppointmentof counsel is clearly
a choice for the trial court.
CONCLUSION
We commend Skurdal on his efforts and participation in his
government. We defend his right to hold a differing political and
legal opinion. However, we repeat that the issues herein raised
are now settled, and any further appeal of them in this Court will
be deemed frivolous.
We decline to impose sanctions for frivolous appeals as per
the request of the Big Horn County Attorney based on Skurdal I,
supra. We do not reach the issue of what sanctions are appropriate
for frivolous appeals as made by pro se litigants.
Finally, we do not reach Skurdal's question of whether Federal
Reserve Notes are lldollars.ll quarrel with the federal monetary
His
system has no relevant bearing on any of the contested issues in
this case regarding Skurdalls criminal liability. We hold that
Skurdal may promptly pay his $350 traffic fine to Big Horn County
in any form of lawful United States money.
Judgment affirmed.
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We concur:
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