Utah Free Press

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Utah Attorney General Issues Statement on Booting

September 21st, 2008 by Richard Okelberry - Following some of the recent controversy surrounding Vehicle Booting on private property here in Logan, Utah, I decided to look a little closer at the law.  After researching applicable Utah State Statutes I concluded that this activity might not be completely legal and eventually ended up writing the State’s Attorney General for a clarification of the law.  Because the State Attorney General’s office is charged with issuing legal opinions to specific government authorities only, I truly didn’t expect a response on this issue.  To my surprise and delight the Attorney General’s office did look into the issue and replied with a well researched statement.  I should note that this is not an “official” opinion of the State Attorney General’s office but merely a statement.  Still, I must say that I am extremely grateful because this statement gives us a strong insight into how the issue might be treated by the courts.

 

For those not familiar with the issue; “Booting,” also known as a Denver Boot or Clamping, is the practice of immobilizing a vehicle for various violations by placing a device over one of a vehicle’s wheels.  While the Boot was invented back in 1953, it was not broadly used until more recently by law enforcement as an alternative to towing vehicles that are either illegally parked or in violation of other ordinances, like excessive overdue parking tickets.  What has changed is the fact that private property owners have begun using the device to immobilize vehicles parked on their property against owner posted parking restrictions.  Private parking areas that enforce parking restrictions by booting have widely become known as Boot Lots.

 

In two separate letters to the Logan City Council I urged the city council to use caution when regulating this practice.  While it was well within their right to do so as expressed by a Federal Appeals Court in Millet v. Logan, I feared the practice of booting might be in violation of State Statutes against Theft and Extortion.  It appeared to me that absent a clear exception for booting at the state level, the laws prohibiting unlawfully taking another person property and worse holding that property with the threat of further legal action against payment was in violation of state laws.  After some further research, I discovered that there was an allowance under state Towing laws that did allow a property owner to place a “possessory lien” against another’s property.  I theorized that booting companies must be treating booting as a form of towing and therefore felt justified in placing a possessory lien against the vehicle.

 

While this seemed logical, I also noticed that while the booting company was enjoying the rights allowed under the law to place a possessory lien, they were failing to comply with the rest of the state statutes concerning towing which require among other things, notification of law enforcement and State licensing of its agents.  Eventually, I contacted the State Attorney Generals office to help define how under the current state laws, booting on private property was legal.

 

In response, the Utah State Attorney General’s office issued the following statement (not to be confused with an official opinion):

 

RIGHT OF REAL PROPERTY OWNERS TO REGULATE TRAFFIC

 

Utah law allows the owner of real property used by the public for the purposes of motor vehicle travel, with the permission of the owner, to regulate the use of the property Utah Code Ann. 41-6a-215.  This would include the action of private owners, upon proper notice to the public, assuring compliance with its rules prohibiting unauthorized parking by “non residents” by vigorous use of traditional common law remedies Forest Hills Gardens Corp v. Baroth, 147 Misc. 2d 404.  The use of a “booting” program falls well within the self-help ambit of “rigorous use of traditional common law remedies” Id…

 

…A landowner is authorized/privileged to commit an act which would otherwise be a trespass to chattle or a conversion if the act is, or can be reasonably believed to be necessary to protect the owner’s land or chattles and the harm inflicted is not unreasonable as compared to the harm threatened Restatement (second) of Torts 260(1).  The application of a “boot” may be an “interference” with the property of the trespasser however, the owner of the property is privileged to protect their right to exclusive possession of the property (lot) by such application, Kirschbaum v. McLaurin Parking Co., 656 S.E. 2d 683 (North Carolina 2008).

 

-          SHEILA PAGE, Assistant Attorney General, State Agency Council. (excerpt above) (entire text)

 

 

Democrat Leaders Deceptive on Energy!

September 17th, 2008, by Richard Okelberry -Republicans know that one of the weakest issues for Barack Obama is his energy strategy.  This is why Congressional leaders staged a “sit-in” during the recent Congressional break in an attempt to force Democrats to come back into session and pass a comprehensive energy policy that includes increased drilling for oil.  Now that Congress has returned, Democrats are pushing through a late night energy bill designed to improve the image of the Democrat party on energy without actually allowing much of an increase in oil production. 

 

Last night at 9:45pm Democrats filed a bill that would approve drilling between 50 and 100 miles of the coast of the U.S while raising taxes on Oil Companies.  Nancy Pelosi then put the bill up for consideration first thing in the morning.  This is an underhanded tactic designed to keep lawmakers from being able to review the bill thoroughly before taking a vote.

 

House Majority Leader John Boehner told NPR ““When a bill gets filed at 9:45 the night before, and then it’s announced it’s going to come to the floor the next morning as first bill up — a bill that no one has read, written in the dark of night, that won’t do a damn thing about American energy. Enough is enough!”

 

To me the reasons for this energy bill are clear.  Democrats need to be able to say they have put forward an energy plan that allows for drilling so Sen. Obama can use the bill as a talking point on the campaign trail.  Unfortunately for the rest of us, this bill will not provide significant relief at the pump but will likely increase gas prices as oil companies pass on the increased taxes to the consumer.

 

You see, Obama needs gas prices to stay high, at least through the election.  He knows that the price of everything is tied to fuel.  As fuel prices go up the economy gets worse and Obama can then blame it on Bush and McCain.  On the flip side, if a comprehensive energy bill were passed that allows us to drill where the oil is (within the 50 mile limit), speculators will begin selling oil futures like crazy, causing an even greater drop in oil prices.

 

For all of Obama’s rhetoric about helping out the little guy who is struggling, it seems that for the Democrats, winning elections come first.  Finally it should be noted that if passed this bill would only allow drilling between 50nm and 100nm if the adjoining state agrees to it.  This is something that states like California are not likely to seriously consider because they receive no revenue from the drilling but will incur much of the risks. 

 

Finally, it should be noted that Democrat Rep. Edward Markey has already given a glimpse into the new Democratic tagline on energy when he said, “They keep saying on the Republican side, ‘Drill, baby, drill.’ What we’re saying is ‘Change, baby, change,’ and they can’t change…  They’re still out here with the Big Oil agenda. They’re still out here saying no to wind, no to solar, no to efficiency, no to geothermal, no to the future. Innovate, baby, innovate; change, baby, change.”

 

In reality, Republicans have repeatedly called for greater investment in all renewable forms of power just like the Democrats but are also realistic in understanding that until these technologies can be fully implicated we need to take a hard look at how we can provide the fuel and energy which is the life blood of our economy in the mean time. 

Does Bipartisanship matter in a President?

September 16^th, 2008, by Richard Okelberry – It has been a regular part of Sen. Obama’s campaign to equate a McCain Presidency as being no more that another 4 years of Bush administration policies.  To make this point Sen. Biden, Obama’s running mate has regularly quoted during campaign speeches the fact that McCain has voted with Pres. Bush 95% of the time.

 

While the 95% number is accurate it certainly is not the whole story.  It is true that last year McCain sided with the president 95% of the time but in 2005 he only voted with the President 77% of the time and has voted against the president 10% of the time on average.

 

While this 10% may seem negligible to many it is also important to look at how often McCain sided with his own party in comparison to Obama and discover how McCain’s voting record compares to others in the U.S. Senate.  Lucky for us, there is a great resource run by the Congressional Quarterly that keeps a running total of all congressional votes.

 

While Obama was not in the Senate for many of the “Unified” votes following 9/11 the fact that he has only sided with the President, 40% of the time certainly indicates that he has no love for Pres. Bush’s policies.  That said, it is important to note that Obama did side with his own party a full 96% percent of the time.  Why is this important?  It illustrates that he is far less likely to act in a bipartisan fashion than McCain who only sided with his party 81% of the time.

 

This leads us into a discussion of whether or not voting in a bipartisan fashion is a good or bad thing.  I would argue that it is both good and bad.  First, if you consider yourself a Republic or Democrat you likely do so because of you political philosophies.  This means that you allow your guiding principals to play a major role in your decision making.  On the other hand, if you simply vote with your party on everything it seems to indicate that you are more inclined to tow the party line and not follow your best judgment about what is best for your constituents.   While following the party line may help in the Senate where alliances are necessary, it may not be the best course to follow as President. 

 

In the case of this election we have a choice to make between two candidates that are almost complete polar opposites as far as party allegiance goes.  On one hand McCain is 6^th from the bottom in supporting his party among Republicans and in the bottom 10% of Senators who vote with their party, while Obama is 10^th among Democrats who vote with their party and in the top 22% overall for party support among all Senators.

 

Certainly there are those that will argue that party unity and allegiance is more valuable than bipartisanship.  While I believe that is a strong argument may be made for those serving in the House and Senate, I would argue that the Presidency needs someone who is willing to listen to the concerns of both parties before making a decision.  While there is no such thing as a truly bipartisan President, McCain may end up being the most unifying candidate.  If this is true then Obama may end up being the candidate that causes an ever increasing divide in politics where presidents are regularly placed under investigation by Congress and threats of politically motivated impeachment is commonplace. 

 

McCain has built a sizable list of friends and allies from both Parties in the Senate over a long history of bipartisan legislative measures.  If elected, he will likely be able to call on these allies to produce legislation that better represents the concerns of all Americans.  While Obama certainly is motivated, his unwillingness to work with Republicans could cause major problems with moving his agendas forward.

 

Finally, I want note that since the beginning of 2008, McCain has voted with President Bush 100% and his party 93% of the time while Obama has only voted with Bush 19% of the time and is supporting his party 95% of the time.  I can’t help but wonder how much the campaigns have played a roll in the votes cast by these candidates since the beginning of the year.

Obama’s Muslim Faith?

 

Hmmm..  Should we start believing the conspiracy?  Who can’t get their own faith straight?  Boy, if the media wasn’t so busy going after Palin…  Notice how George corrects him, rather than seizing on it.  To be honest, I don’t care if he is Muslim or Christian.  I just think he needs to get it straight.