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  1. #21
    Join Date
    Apr 2018
    Location
    Long Beach, CA
    Posts
    236

    Default Re: Cited for a Construction Zone. That Isn't a Construction Zone in West Virginia

    Quote Quoting Taxing Matters
    View Post
    I answered that question earlier — there is no contract involved. The federal and state governments did not bargain over terms and enter into a contract. The federal government simply enacted a provision that conditions certain federal funds to the states on compliance with the MUTCD standard. Either states comply so as to be eligible for those funds or they don’t. Nothing about contract law is implicated here.
    In that 'provision" no details of the agreement/provision are in writing? Nobody signed any documents as to this agreement? The 10% funding that is jeopardized if they don't follow the MUTCD is just understood but not written anywhere and is not agreed to by a signature anywhere?

    How would any of you know this?

    Maybe what you are saying is this "provision" is a verbal contract or agreement. Or, it was written on a napkin or whispered very softly?

  2. #22
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: Cited for a Construction Zone. That Isn't a Construction Zone in West Virginia

    The semantic game is that the executive branch ENFORCES law. The courts merely interpret the law in that enforcement.
    It's still kind of off-topic to the general discussion.

    Understand that just because the FEDS threaten to pull funding if a state doesn't do anything, doesn't make the state's behavior illegal and certainly anything that's done under the point of a gun (coercion) isn't a contract either.

  3. #23
    Join Date
    Oct 2014
    Posts
    8,238

    Default Re: Cited for a Construction Zone. That Isn't a Construction Zone in West Virginia

    Quote Quoting Brian57
    View Post
    In that 'provision" no details of the agreement/provision are in writing? Nobody signed any documents as to this agreement? The 10% funding that is jeopardized if they don't follow the MUTCD is just understood but not written anywhere and is not agreed to by a signature anywhere?

    How would any of you know this?

    Maybe what you are saying is this "provision" is a verbal contract or agreement. Or, it was written on a napkin or whispered very softly?
    Perhaps you are not aware of it, but statutes are not contracts. The Congress enacts laws that conditions federal funding on the states meeting some condition. That statute is in writing, but it is in no way a contract with the state. The state either complies with the statute (and any federal regulations issued pursuant to that statute) to be eligible to get those funds or they don’t. The federal government and the state do not enter into a contract regarding this.

    It is no different than the Congress enacting a tax credit. If you want the tax credit, you do what the statute says is needed for the credit. There is no contract there, either. If you think that tax credits involve a contract between you and the federal government, you truly have no clue how the law works. Well, the Congress conditioning federal funds to the states based on compliance with some federal standard is analogous to that credit — there is no contract. The state either meets the requirements set out in the statute or regs or it doesn't. There is no negotiation over it. There is no contract. Just like you don't negotiate with the federal government and enter into a contract to get a tax credit. You just either meet the requirements the law sets out or you don’t.

    Is it now clear to you?

  4. #24
    Join Date
    Apr 2014
    Posts
    193

    Default Re: Cited for a Construction Zone. That Isn't a Construction Zone in West Virginia

    Quote Quoting Brian57
    View Post
    How would any of you know this?
    I will make it clear and explicit for you. Visit -
    https://mutcd.fhwa.dot.gov/knowledge...eral.htm#genq2

    General question 2 is -
    Q: What is the legal status of the MUTCD?
    A: The MUTCD is adopted by reference in accordance with Title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.603, and is approved as the national standard for designing, applying, and planning traffic control devices.

    The referenced is law is 23 U.S. Code ß 109 - Standards,
    https://www.law.cornell.edu/uscode/text/23/109
    and section (d) reads -
    (d) On any highway project in which Federal funds hereafter participate, or on any such project constructed since December 20, 1944, the location, form and character of informational, regulatory and warning signs, curb and pavement or other markings, and traffic signals installed or placed by any public authority or other agency, shall be subject to the approval of the State transportation department with the concurrence of the Secretary, who is directed to concur only in such installations as will promote the safe and efficient utilization of the highways.

    This law says if you want federal highway funds, you need to follow standards agreed to by the Secretary of Transportation. The detailed implementional of this law is found in the Consolidated Federal Records which is referenced here -
    https://mutcd.fhwa.dot.gov/res-23cfr655.htm
    The summary of which is -
    23 Code of Federal Regulations 655
    The MUTCD is adopted by reference in accordance with title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.603, and is approved as the national standard for designing, applying, and planning traffic control devices. View the Electronic Code of Federal Regulations Title 23: Highways, Part 655.603.

    This how the feds coerce the states to enact laws which adopt regulations desired by the feds, Congress passes a law that if a state does A it gets B. No discussion, no written agreements, nothing whispered, either the state adopts the desired regulations or something bad happens. Right now the big issue is RealID standards for driverís licenses, which is a consequence of the security laws passed after 9/11. This time no money is at stake, just that if a state does not follow the federally desired regulations for confirming the identity of someone with a driverís license, the federal government will not accept that driverís license as proof of the holderís identity. For WA, which will not comply, you cannot use a standard WA driverís license to enter Federal Facilities which require ID to enter, like National Laboratories, military bases and other secure federal buildings and installations. In 2020, a standard WA driverís license will not get you through TSA to get on a plane. That is the real hammer the feds are using to get most states to adopt RealID, comply or your citizens will have trouble getting through airport security. Like MUTCD, no discussion, just a federal law that says if a state follows the desired path, the feds will reward the state, if not, no reward. It is up to the states to decide if they will play along and adopt laws to enforce the desired regulations and get the reward or not.

    Quote Quoting EJay
    View Post
    As has been shown in this thread, depending on the state, non compliance to MUTCD can be exculpatory. In other states proving non-compliance may not be exculpatory but it certainly could be persuasive. Rarely will proving non-compliance be adverse. Therefore, it is often beneficial to advise the defendant to look into it.

    At minimum, can we all agree that if the defendant had trouble with a traffic control device and if compliance with MUTCD could have prevented such troubles, advising the defendant to look in to said non-compliance and use it to persuade their defense may be beneficial and should not instantly be discredited?
    As I point out above, adoption of MUTCD is voluntary by the states. Since each state is adopting it independently via different laws and with different case law interpreting those laws, the outcomes will vary by state. In Ohio, the case law makes non-compliance with MUTDC exculpatory. I expect that there are states where non-compliance is likely irrelevant if the meaning is clear. In the latter states, raising non-compliance in and of itself will get you little beyond perhaps some sympathy from the court. If non-compliance actually was instrumental in creating the infraction and not being used as a technicality, by all means raise the issue, it may be persuasive enough for an acquittal, but don’t expect it to be a get out of jail free card in every state and every case.

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