Who Is Your Co-pilot?

Or is he?
Or is he?

by Gene Howington, Guest Blogger

While touring about America’s roadways, it’s not unusual to see a vanity plate or bumper sticker that says “God Is My Co-Pilot”. It’s not unusual to see someone with a dog as a co-pilot. Can a corporation be your co-pilot?

We’ll soon find out thanks to Citizens United and Jonathan Frieman of San Rafael, California.  Mr. Frieman was pulled over for driving alone in the carpool lane.  He argued to the officer that he did actually have a passenger. In the form of articles of incorporation.  Upset (and reasonably so) over the Citizens United ruling, Frieman says he had been trying for years to get pulled over, ticketed and get a chance to take his argument to court that corporations and people are not the same.  His mission was accomplished in October when he was pulled over for driving alone in an HOV lane, ticketed and slapped with a $481 minimum fine.

It’s a common sense argument based in the reality that corporations are a legal fiction and not a real person. We’ve seen this argument in play here and in other media since the controversial – many if not most might say ridiculously bad – decision of Citizens United was rendered in 2010. But will it work in traffic court?

University of San Francisco law professor Robert Talbot says “A court might say, ‘Well, it says person, and a corporation is a person, so that’ll work for the carpool lane. It’s possible, but I doubt it.’” A statement I must agree with because under California law Vehicle Code § 470, a person is defined as “a natural person, firm, copartnership, association, limited liability company, or corporation.” Mr. Frieman has broken down his argument in an opinion piece posted to the San Rafael Patch site dated May 14, 2011. Will it work? It’s possible but not likely as the judge may find the the argument  steers too far from the intent of carpool lane laws. Considering how specific the language of the California Vehicle Code is though in defining corporations as people though, the argument is not without merit. We’ll find out when Mr. Frieman goes to traffic court tomorrow, Monday, January 7, 2013. Or we might not if the officer doesn’t show up for court and the ticket is dismissed. As an argument, it is an interesting play nonetheless.

Do you think the argument could work? Do you think the argument should work?

Source(s): NBC, Ca. VC § 470, San Rafael Patch

~submitted by Gene Howington, Guest Blogger

43 thoughts on “Who Is Your Co-pilot?

  1. I’d bet he loses & the court will have to tie itself into a knot to justify it. But thats a hallmark of the Roberts Court, decisions that are not useable by normal reasoning.

    I’ll believe corporations are people just as soon as Texas executes one for a capital crime.

  2. One way of looking at it…. The problem with most folks is that they are sluts for the system…. And the beat goes on….

  3. The history of corporations in the U.S. militates against the notion of them having the civil rights that humans have.

    The notion of incorporation is historically a concept of state law, so under states rights concepts, the states should be the ones to define what a corporation is.

    The federal judiciary defining what a corporation is goes beyond the historical legal foundation.

    Gene H used state law, California in this instance, as a reference to what a corporation is defined as, in terms of “person-hood.”

    That is as it should be, as the Montana Supreme Court also thought, but the Supreme Court shot that down:

    The Supreme Court has struck down a century-old Montana law banning corporate campaign spending. Montana was sued when it invoked the ban to prevent corporate money from flooding state and local political races. A right-wing nonprofit argued the state’s ban violates the 2010 Citizens United ruling that allowed corporations to spend unlimited amounts in federal elections. On Monday, the Supreme Court agreed, blocking Montana’s law in a divided five-to-four ruling.

    (Citizens United, Part 2). The right wing talks about how bad it is for courts to become filled with “activists judges,” until they are those judges.

    State law is being rewritten or obliterated by the Supreme Court’s right wing.

    For example, what if a state defines a corporation to not be allowed to vote in elections, or give money to political candidates, as it also defines the right of felons, including whether or not they are to be allowed to vote.

    The latter, preventing a human from voting is cool with the right supremes, but preventing a corporation from voting would be unconstitutional?

    It gets blurry when the state right to define a corporation is subverted by glossing over that historical reality to further the incursions of plutocrat-owned and plutocrat-controlled corporations.

    It takes genius not to see the motive behind it.

  4. A thought experiment [I am sure the lawyers will tell me the faults] concerning the first amendment:

    We all agree the Constitution allows for freedom of religion to the extent I am free to start a church with a group of friends in order to pray and practice my religion with like-minded people.

    Now lets say the government decides to shut down my church because they deem it dangerous to civil morality. They argue that they are only shutting down the church but that I and my friends still have the right to pray at home. The government says it can do this because a church has no soul, a church cannot pray, it has no rights, it is an artificial legal entity and as such has no rights.

    I say you do not lose your Constitutional rights by joining with other people to exercise them; whether it be religion or speech.

  5. Well, I’ve got my highly intelligent Android Phone, with VZ Navigator, on the seat right next to me. Does that qualify me for the HOV lanes in Florida?

  6. “Now lets say the government decides to shut down my church because they deem it dangerous to civil morality.”

    Not possible under Lemon and by the terms of the Establishment and Free Exercise Clauses. The RFRA (Religious Freedom Restoration Act) reapplies the Sherbert Test which applies the standard of strict scrutiny to governmental actions restricting religion. I was found unconstitutional as applied to the states, but it is applied to the Federal government and several states enacted analogous legislation. “Dangerous to civil morality” wouldn’t hold up to strict scrutiny.

    It’s not the grouping that is the salient feature, Bron. It’s the fact that corporations are legal fictions that have advantages natural people do not like limited liability and perpetuity. A corporation exists only as an operation of state charter. We can limit them any way we deem appropriate. Citizens United erred in expanding corporate personality way beyond the functional necessities the legal fiction requires from legal personality, i.e. the ability to contract and avail the courts.

  7. rc,

    Citizens United applies to both corporations and unions. The true nature of the problem relates to both expanding corporate personality beyond the scope of necessary functionality for the legal fiction combined with the horrendous decision of Buckley v. Valeo which held that money is the equivalent of free speech when it is nothing of the sort. Our path to corporate domination begins with the bad reasoning of Buckley.

  8. The post does not provide the specific law alleged to be violated, so it is hard to form an informed opinion. Nevertheless, I don’t think the driver had a corporation in the car.

  9. mahtso,

    If you wish to look up the California HOV law, be my guest. The relevant code to the defense argument set forth was cited.

  10. I was going to say here’s hoping everyone in the jurisdiction picks up on this and starts driving with the corporate books.

    However, there’s a metaphysical problem here.

    Where exactly does the corporation exist in ‘corporeal’ form?

    The articles of incorporation? The certificate of incorporation? The corporate address? The Secretary of State wherein incorporated?

  11. Personally, I love the argument for its internal logic:

    Carpool lanes are for two or more people.
    The Supreme Court says corporations are people.
    Frieman plus the corporation are two or more people.
    Frieman is properly in the carpool lane.

    Will it win? No. Should it win? I think so.

  12. I can think of one case or example where an unrelated law was used, and used successfully. And it’s not a recent one.

    In 1875, there were laws in the US protecting animals from abuse, but there were no laws protecting children from the same abuse. A lawyer successfully argued (probably thanks to Charles Darwin) that since humans are animals, an abused girl was entitled to at least the same protection from abuse as a dog.

    “An important legal precedent was established: ‘If a child has no rights as a human being under the law, he is at least entitled to the justice of a cur on the streets.’”
    – Robert Geiser, author of “The Illusion of Caring”


    Whether the carpool case can debunk the stupidity of “corporate personhood” remains to be seen.

  13. [To the music of the Hallelujah Chorus, Handel’s Messiah]:

    Corr–poration, Corr–poration,

    Corr–poration, Corr–poration,

    For the Lord God, Omnipotent, started,
    Oh he started,
    oh he started to create,
    he started,
    he started to create
    (He made Adam,
    He made Adam and then he made Eve,
    He made Adam, made A-ha-ha-ha-dom)
    so he started, he star-har-har-harted.

    The kingdom of this world
    Is become the corpora-yay-shun.
    Corporation, Corporation!
    And it shall reign for ever and ever,
    Corporation, Corporation, Cor-porrr-ayyy-shun!
    For ever and ever, forever and ever,
    Citizens (united, United!)
    The Lord of lords,
    And they shall reign,
    And they shall reign forever and ever,
    King of kings, corporation, corporation!
    And Lord of lords,
    Corporation, corporation!
    Corporation, corporation! Cor-por-ay-shun!
    Citizens (United, United, United United!)
    Corporation, corporation!
    Corporation, corporation!
    Corporation, corporation — Corporation, cor…por…a…tionnnnnn!

  14. “Where exactly does the corporation exist in ‘corporeal’ form?”

    Bob went to the essence of the conundrum and the Judges way out. Is it the State or Country where the corporation is incorporated in and the address used? Can it be the actual approved incorporation papers? Can a person use their passenger seats as corporate headquarters? There are far more perceptive legally trained minds here to be able to figure that out.

    However, Mr. Frieman is obviously a very smart man for figuring this protest out and I enjoy its deliciousness.

  15. @Gene: Yeah, I think it should work. Isn’t there a principle of law (at least I have been told so by other lawyers) that the law and contracts are to be interpreted by their plain meaning using the common definitions and grammar? This definition of “person” looks pretty plain, to me.

    Here is something I would rather see challenged under Citizen’s United: If a corporation is a person, why do they get to deduct as “business” expenses costs that the rest of us are denied? For example, their housing expenses, their various insurance payments, their utilities, their security, their cleaning expenses and transportation expenses?

    I can certainly claim that for my “business” of providing research to a university I also require shelter, transportation, insurances against loss, employees to clean, electricity and security at my home…

    If people could deduct from their gross revenue the expenses that corporations routinely deduct from theirs before computing “income,” most of us would pay no income taxes at all.

  16. tony c:

    all people should be incorporated in some business or another and be engaged in making a profit. Whether it be chickens, Amway or providing some other product or service. Pay part of your car payment, your trash pick up, your cell phone, your toilet paper as part of a business expense to the extent which is legal.

    Write off as much as the law allows. It is the American way.:)

  17. He should form a corporation, sub S, of Dogs United, Inc., and make the family dog the President of Dogs United, Inc. Then pull the same lane game ride with the dog as his co-pilot and have the dog in possession of the Articles of Incorporation around his neck. He should bring the dog to court with the Articles of Incorporation around his neck, attached to the collar. “Call your first witness.” “The defense calls Talking Dog.” The rest is history. By the time it makes it to the Supreme Court Scalia and Roberts will have a falling out over ScaliaCare health coverage for judges and Dogs United will usher in a new day in court. Dogs have rights too.

  18. I don’t see this as being a successful legal challenge. The state could argue the corporation existed, however according to its articles of incorporation it is situated at a fixed location and that would be whatever was on file with the state as to its address was its actual location. Since the plaintiff said the corporation was in the car due to the paperwork, it would not be held to be valid because corporations cannot move headquarers without at least notifying the state of a change of location. The licensing requirements of a corporation do not allow mobility as provided daily by a car.

  19. This does bring to my mind a discrepancy between natural persons and corporations with regard to due process.

    There is in our state a different legal process for issuing a criminal action or punishment against a corporation than one for a natural person. The corporation receives as a result more favorable enforcement. Here is why

    A natural person may be arrested and incarcerated prior to conviction, which effectively denies the person liberty and prohibits him / her from engaging in work or other forms of income. In the case of a corporation being charged wtih a crime, codified under RCW 10.01.070 The process is for either information or indictment to be signed by a judge and a summons along with a copy of the information is then delivered by the sheriff to the corporation’s address of record. There is no suspension of the corporation’s license or curtailment of its income or operations. Natural persons do not always have that right and are subject to summary arrest and incarceration.

    Another discrepancy is that under state law, corporations cannot be jailed and if a jail sentence is imposed by statute to a natural person, state law RCW 10.01.100 fines in lieu of other punishments. (such as jail). The problem here is the fines that are codified are significantly lower than what natural persons can be fined. Corporations “shall be punished by a fine of not more than ten thousand dollars, if such offense is a felony; or, by a fine of not more than one thousand dollars if such offense is a gross misdemeanor; or, by a fine of not more than five hundred dollars if such offense is a misdemeanor.” whereas natural persons under RCW 9A.20.021 can be fined up to $50,000 for Class A Felonies, $20,000 for Class B Felonies, and $10,000 for Class C, $5,000 for Gross Misdemeanors and $1,000 for Misdemeanors. The only crimes for which the fine is equal between corporations and natural persons are Class C Felonies, the rest range from 2 to 5 times what a corporation pays.

    I wonder if it could be argued by a natural person that was sentenced to a $50,000 fine if they could claim the inequality with a corporation (now a person) being only fined $10,000 and have the sentence vacated. Any thoughts?

  20. Once I secured Mr. H’s permission to research the code, I did so (albeit in a cursory manner). Based on that, I assume the violation is of Section 216555.5(B). If I am correct, I find it hard to believe Mr. Frieman will prevail, because subsection F gives the legislative intent, which is, in essence to keep cars off the road.

    But seriously, how could someone believe that the relevant provision is the definition and not the actual section violated? Both relevant? Sure, but better to be snarky than to inform I guess.

  21. Darren,

    The registered agent for service of process need not be at the primary place of business. It can in fact be a true third party agency relationship. Consider the large number of business that incorporate in Delaware due to their favorable laws. Most of them have primary offices elsewhere and there is a tidy bit of business done in Delaware for those acting as agents for service of process.

  22. Give snark, get some mahtso. The article noted the challenge would likely be unsuccessful because of deviation from legislative intent vis a vis the HOV lanes.

  23. Under the UCC each corporation is required to have a registered agent in the state that they conduct business in…..

  24. That’s why I said conducts business…. Not place of business…. The lines are getting blurrier but they have to have had some presence in a state for it to be required to have a RO…..like Pete’s party store of moonshine, ky…. Would not need a RO in Texas unless it conducted busiess in Texas….. But it would if it systematically conducted some form of business…..

    I think the Internet tax collection for business that just sell on line will open the lines to more blur…..

  25. AY,

    I knew you knew the distinction. I was simply clarifying for those who might not. But “I think the Internet tax collection for business that just sell on line will open the lines to more blur.”? Yeah, that’s a can of worms for sure.

  26. I agree with the sentiments above. He probably won’t win, but ought to. That is, unless the judge in the case is morally and legally opposed to Citizens United. If that is the case, we may be treated to the delicious circus of the State appealing and having it argued up through the appellate process.

  27. Gene this is one of those “unjust circumstances” that you referred to in another thread that could use some good results.

  28. The article stated that the driver was unhappy with the Supreme Courts ruling providing corporations a status that allowed them a new wrinkle to affect government. It also stated he was trying to get arrested for a trial case to be resent to a wider jurisdiction. Here is hoping he loses in traffic court and is able and willing to appeal. I too feel the Supreme Court’s ruling is malarky in the extreme and needs to be challenged over and over again. Should the body of the court change by the time this case reaches the court then maybe a more sane conclusion can be reached.

  29. Perhaps the guy is barking up the wrong tree. If a corporation is a person then perhaps the corporation should be liable for some of the things that it does. Like where Blackwater kills someone in Pakistan with their drone. The Pakistani victim can sue Blackwater for its acts of killing. Sue them where they are incorporated. When Blackwater demurs and says no we didnt kill the guy the person flying the plane did. Plaintiff says: No, the plane is owned by Blackwater and you are Blackwater. A person is good for their actions. The drone plane did the bombing.

  30. The news report show the man was found guilty, relying on the legislative intent.

    I am a bit surprised that no one on this blog argued that the view of the legislative intent I expressed above was flawed. The statute expressly provides that the intent is to reduce traffic, but the law does not limit the carpool lanes to cars with more than one person of driving age (i.e., a driver and an infant qualify for a two-person carpool.) Consequently, to say a corporation does not qualify because it cannot drive (arguably) is not persuasive.

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