A traffic court judge in Kentucky made a minor splash. She just threw out the state’s entire speed limit system. A driver was ticketed for 93 in a 55 zone. His lawyer found there was no record of any order setting a 55 mph speed limit. Instead of ignoring the speed limit signs in the one case the judge decided the whole speed limit system was unconstitutional.
The verdict will not stand if appealed. What we can hope for is a decision requiring better procedure and record keeping on the part of the government.
In the American legal tradition appeals courts are supposed to make the smallest decision required to resolve a case. If they do that they will probably follow precedent from elsewhere.
During the National Maximum Speed Limit era a driver in Pennsylvania got caught doing 60 in a 35. He argued that the engineering study justifying the speed limit was obsolete because the road had been widened. The appeals court didn’t decide whether he was right. State law prohibited driving faster than 55. There was no such thing as a 60 mile per hour speed limit. He was still guilty of speeding, even if it was only 60 in a 55 zone. There are similar decisions from other states.
Kentucky law says an Interstate speed limit is 65 unless changed by official order. The driver cast doubt on the 55 mph signs. The appeals court could say the speed limit should be considered 65. Or 70. There is no such thing as a 93 mile per hour speed limit. A ruling along those lines is a realistic outcome.
I can imagine a better outcome: the government must prove what the speed limit was. If the charge is speeding in a 55, the prosecution must prove speeding in a 55. If the limit is not 55, not guilty. That would create an incentive for government officials to do their jobs and obey the law. It would also be a minority rule. That’s kind of what the California speed trap law says, but California is weird.
In my state there are two distinct crimes of burglary: burglary in the daytime and burglary in the nighttime. There seems to be a loophole. You might break into a house at twilight thinking, “they can’t prove it’s daytime and they can’t prove it’s nighttime.” Judges are way ahead of you. You can be convicted of the less serious version of burglary, burglary in the daytime, even if you prove it was nighttime. If you are driving 56 and the judge doesn’t know whether the speed limit is 45 or 55, you might be convicted of 56 in a 55 zone. The judge won’t want to let a criminal (you) walk free.
Judge Kaelin said nothing in state law said drivers had to obey speed limit signs. There was no official document setting a speed limit. So she threw out the whole speed limit system. It violates due process to hold drivers to a rule without telling them how to obey it. That’s not going to hold up. Part of what we call “due process” is fair notice of what the law is. Usually that means the law has to be written down somewhere you could find it if you looked for it. Even speed limits hidden behind bushes are better than a sentence deep inside the Federal Register.
Appeals court judges will say speed limit signs can give drivers the notice they need to obey the law. There is an official standard describing what speed limit signs are and what they mean. Other states have rejected arguments like “the sign didn’t say 55 miles per hour.” Speed limit signs tell drivers they can go to the DPW building, rappel into the basement, find the abandoned storage room, unlock the filing cabinet (beware the leopard), and read the official document saying the speed limit exists and must be obeyed.
But what if there is no official document on file, as in this case? Is it absence of evidence or evidence of absence?
The worst outcome would be a policy like Virginia’s. Absence of evidence is not evidence of absence. Signs are still enforceable if there is no record in government files. The law, as interpreted by judges, creates an incentive for cities to destroy evidence of misconduct. And they do. If the engineer’s report says “post 45” they can post 25, throw away the report, and start ticketing.
We can hope for a favorable outcome, but this strikes me as another case of a driver reaching too far and possibly leaving us all worse off.
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