(Forest Fee case; date of
alleged offense: Nov. 6.
1999)
"TT" = Defendant
"JM" = Magistrate Judge
Muirhead (presiding).
"FF" = Forest Service
officer/witness who
ticketed TT.
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*
[At beginning of the
trial, JM advises TT of
his right to remain
silent: e.g., "You need not
say anything to anyone in
this matter," etc.]
FF [Describing process
of ticketing someone and
the form displayed at
trailheads and/or to be
left on cars, etc.]:
"That form says, 'Failure
to deposit correct
payment or to display a
forest-wide parking pass
violates 36 CFR 261.15
and may result in a fine
not to exceed $100.'"
JM: 'Where in 36 CFR
261.15 does it say that
failure to display a
parking pass is a
violation? I have been
unable to find it."
[They look up 36 CFR
261.15.]
JM: [referring to the
form referred to above
by FF]: "It says, 'failure
to deposit correct
payment or to display a
forest-wide parking pass
violates CFR 261.15' and
I asked, 'Where in CFR
261.15 it requires that
any parking pass be
displayed?'. FAILURE TO
PAY is what the offense
is."
[Having made this point,
JM tells them to proceed.
FF proceeds with his
testimony about process
of how cars are ticketed:
FF checks to find who the
car belongs to and then
issues "probable cause
statement", etc.]
[TT accepts offer to
testify, and condemns the
fees. Finally he is asked
directly by the
prosecutor if he was
there on that date, saw
the signs, and refused to
pay. TT admits this.]
JM: "Mr. [TT],
Unfortunately for the
Forest Service, Congress
has taken upon itself to
underfund their needs. I,
with you, think the
Forest Service does a
pretty outstanding job.
But it becomes hard to
provide the amenities and
do their job when
Congress provides
inadequate funds.
"Congress permitted the
adoption of this
particular provision
establishing fees for
various uses, and I
suppose you could argue
with what the forest
service has chosen is a
reasonable fee or isn't -
- $3 or not.
"But the fact of the
matter is that it IS the
law. I will tell you, had
you chosen not to testify,
I would have dismissed it.
I told you you didn't have
to; you did, and during
your testimony you
acknowledged to me that
in fact you didn't pay the
fee.
"But the difficulty here
is this: there is nothing
in that regulation that
requires anybody to post
anything on their
automobile. And if the
Forest Service wants to
prove that somebody
hasn't paid the fee,
they're going to have to
prove that there was no
daily payment made, that
there was no weekly
payment made, and there
was no season payment
made. And if they fail to
do that, they have not
proved their case. And
during the State's case
they really haven't done
that, so you sort of filled
in the gaps.
"And without that, it does
not establish probable
cause in any single
ticket. And I have been
dismissing these left and
right when people don't
show up [in court],
because they DON'T state
probable cause, on the
face of them, most of the
time.
"But I have no choice,
based on the evidence that
I have heard, but to find
you guilty under the
evidence."
[The Prosecutor asked
for a fine of $50 (and
there is an automatic
asssesment of $5).
TT said he would not
pay the $55. At some
point here the court
adjourned for a few
minutes. TT was led out
by the marshalls; JM
went out of the
courtroom. Court
reconvened about 10-15
minutes later. JM asked,
"Are we back on the
record?" JM then
outlined TT's various
options: pay the $55, or
else risk contempt-of-
court charges, arrest,
possible shipment to
Oklahoma, etc. TT began
to protest about his
having been invited to
tesify and express his
opinions. JM broke in:]
JM: "The piece of
evidence that was crucial
to the government YOU
supplied. They hadn't
established that you
hadn't paid the fee.
YOU'RE the one that told
me you didn't pay the fee.
So I had no choice but to
find you guilty. I told you
you didn't have to testify.
I can't tell you how to try
your case!"
[TT finally agreed to pay
the $55, and the trial
ended with a back-and-
forth exchange between
JM and TT, in which JM
noted that many people
object to the fees and that
he'd had alot of problems
with them, "but I am
neither the Congress, nor
am I the Forest Service. I
am just a judge ... I
certainly would
encourage you to write
your congressmen, write
the US Senators." He
concluded by noting that
the president had just
designated alot of federal
lands for protection, to
be overseen by the Forest
Service and the Park
Service, but speculated
that Congress wouldn't
give them adequate money
to do the job there,
either.]
Trial ended.
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********
These excerpts were
privately transcribed
from the official court
audiotape, which was
purchased from Federal
District Court in
Concord, NH.
