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9/22/2010
FINAL DAY: OOIDA v. Minnesota State Patrol

While there are miles to go before truckers can be assured their rights are fully protected in Minnesota, OOIDA’s team of attorneys left St. Paul and headed back to Washington, DC, this morning, confident in the U.S. District Court’s ability and willingness to right some serious wrongs.

The trial – OOIDA v. Minnesota State Patrol – concluded Tuesday afternoon at the U.S. District Court House in St. Paul. Both sides will now have until Oct. 8 to give the court written summations, and after that District Court Judge Donovan W. Frank will rule on the issues.

OOIDA and member plaintiff Stephen K. House filed on May 13, 2009, with the U.S. District Court for the District of Minnesota on behalf of truck drivers placed out of service after members of the Minnesota State Patrol arrived at the conclusion the drivers were “fatigued.”

Included on OOIDA’s list of wrongs: that MSP inspectors and commercial vehicle enforcement troopers did not have the authority to inspect for fatigue; had no accurate method of doing so at the roadside; failed to document recognizable, articulable suspicion; failed to establish probable cause; and violated truckers’ rights under the U.S. Constitution.

And while the case is partially about wrongs done in the past, it’s more about what will be done in the future.

In closing arguments on Tuesday afternoon at the U.S. District Court House in Minnesota, state’s attorney Thomas Vasaly said the state patrol has recognized problems in the program and they were fixing it.

“In a nutshell, the patrol’s program of enforcement of the federal regulations for fatigue [has] some deficiencies in it and the deficiencies needed correction. And when it was brought to the patrol’s attention, the patrol acted appropriately and corrected and is correcting the deficiencies,” he told the court in his closing argument.

Vasaly restated the offer to settle that was made on Monday, Sept. 20.

In his closing, plaintiff counsel Paul Cullen Sr. addressed Vasaly’s “we’re fixing it” statement.

Cullen told the court that while “it is opposing counsel’s job to put the best face he can on some of this … with due respect, that General Order was May 5. Four months have gone by, there has been and will be no progress without the threat of court action pending. … The impending trial, which became known in late August, triggered another round of efforts. And we have training that is scheduled with teachers who are unappointed, yet curriculums which aren’t down on paper. It is just in a total state of flux.”

Cullen hammered the point – as OOIDA attorneys have done all during the trial – that the MSP’s actions had no authority.

“What we have here is well-intentioned and zealous freelancers with no authority,” he said.

A primary bullet point in the closing argument from Vasaly was that the state believes the patrol should continue fatigue enforcement.

The concerns in that goal were addressed fully in Cullen’s closing.

He said that in 1997, the Federal Highway Administration proposed that science had reached a point where fatigue could be determined. But in 2000, only 10 years ago, the agency rejected the regulatory option of addressing fatigue directly though an evaluation of performance and concluded that the only feasible way to do it is through hours of service, to put them off the road for the opportunity to get restorative sleep.

“The Federal Register announcement in May of 2000 … said four magic words. ‘More study is needed’ before we go to that direct approach.

“Minnesota is out there by itself,” said Cullen, “because there’s no real statute that authorizes it; there are no real standards established with the force and effect of law to bolster and support a performance-based fatigue evaluation.”

Cullen asked for a moratorium on the fatigue enforcement program until the end of October, extending the state patrol’s Sept. 2 internal memo that pulled the plug on it pending further training. State’s counsel was hesitant but after conferring with Maj. Kent O’Grady, acceded to the suggestion as long as training plans continued.

In his wrap-up, Cullen asked the court for clear-cut declaratory judgment on the rights of drivers.

“That declaratory judgment, even though it is past, is really important. … If we don’t know how we went wrong in the past, we are simply not going to be able to get the future right,” he said. “So a declaratory order as to past conduct is very, very critical here, and it is critical to guide the patrol as to the future.”

Attorneys Cullen and Vasaly were not the only ones to have their say during closing arguments.

On Tuesday afternoon, U.S. District Judge Donovan W. Frank added his opinion on the unprofessionalism of the state patrol – specifically some of their inspectors asking truckers questions and the state patrol’s use of a picture of a disheveled Saddam Hussein in training material as an example of what an unkempt trucker might look like.

“Because some of those questions really would offend most people’s sense of reasonableness. They are off the chart. I don’t know where they came from,” said Judge Frank. “I’m kind of curious about how anybody would think – ever, asking about sex partners, pornographic … With some of these questions, I’ve never actually heard of in 30 plus years of hearing hundreds of these cases at the state level. … There was something that went seriously wrong here.”

Judge Frank said if he had not seen it, he likely would not have believed it.

“It’s way out of bounds. … The fact that someone hasn’t been disciplined and reprimanded, the Saddam Hussein, if anybody in the highway patrol isn’t completely outraged that such a reference – at best it’s unprofessional, at worst it’s rank racism – it’s shocking to me when I saw that.”

The judge was referring to a PowerPoint presentation used by the state patrol that included a slide outlining points of the “driver interview” and focused on the driver’s appearance. The PowerPoint slide included a picture of Saddam Hussein shortly after his capture and a list of items to note on fatigue inspection reports, including bloodshot eyes, watery eyes, yawns and droopy eyelids.

Although he pointed out that this would “not send this case one way or another,” he was “truly shocked.”

 – By Sandi Soendker, managing editor

sandi_soendker@landlinemag.com

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