This judge gets it right, for a welcomed change | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    A judge in Orange County, incidentally, one with whom we seldom agreed, has handed down a superb decision that should be an example to other judges across the state.

    Here's the nutshell version. The Town of Chapel Hill, as is typical of those Elitists, recently passed two municipal ordinances that were severe encroachments on individual liberties. One imposed restrictions on businesses in the town who tow cars. The other, and more interesting one, was a total ban on using cell phones while driving.

    The judge ruled that both were unconstitutional under the North Carolina Constitution. You can read more of the details by clicking here to read the News & Observer report.

    We would want to read the specific provision of the towing ordinance before commenting on that. Clearly the judge felt it went overboard in regulating the way the companies were doing business. We suspect the City Fathers will get their act together and adopt a new ordinance that will solve the actual problems that may exist rather than using a hammer to swat a fly.

    But the cell phone ban is a much more significant issue. It has implications across the state.

    Improper use of cell phones (and devices such as iPods, iPads, etc.) is a bad thing. But the issue is what is improper use. Certainly it is improper if whatever and however it is being used causes an accident which damages or hurts another. But so is drinking hot coffee a problem if one spills it and that causes them to run into someone else. Ditto eating a Whopper, while driving. But it is also sometimes a problem having a baby in the back seat. And for that matter, having a backseat driver and ....well you get the point. Many things cause accidents. The government simply cannot ban the all such things to "prevent" the occasional accident.

    It's the same thing with motorcycle helmets, and even seatbelts. It matters not whether the government regulation is prescriptive or proscriptive. The issue is whether the law is necessary to prevent a real problem or whether it is just a perceived problem. And if it is a real problem that needs to be dealt with, is the government's action a reasonable way to solve the problem in the least intrusive manner possible?

    Millions of people, literally, use cell phones (and other devices) every day and they do not cause harm or injury to anyone. Every American should understand and seriously appreciate that the government has no business depriving any American the right to do as they please so long as they don't actually harm another. It does not matter if some busybodies without enough to worry about decide that something could cause an accident. That is a despotic pit we should always resist. The absurdity of the approach Chapel Hill took can be illustrated by saying that "it was not the cell phone that caused the accident, it was the fact that the driver inserted a key into the ignition and started the car. Had they not cranked the car the accident would never have happened." Abusrd. Yes indeed. Just like banning the cell phone is absurd.

    It's like gun control. Sure, improper use of a gun can cause serious harm. But it is not the gun that does it, it is the improper use of the weapon. So you don't ban guns, you deal with the consequences of the improper use and let those who use a gun properly alone. Don't tread on me. Don't restrict the rights of everyone because a few do something stupid.

    But back to the cell phones.

    Wouldn't it make more sense for the City Fathers in Chapel Hill to seek legislation that would provide strict liability for anyone who causes an accident with the proximate cause of the accident being the use of any kind of device or action which distracts them from driving? Strict liability is the legal principle that you are liable simply because of the act, and the victim of your actions does not have to prove negligence.

    And on seat belts and helmets, mandate that one cannot collect insurance for injuries suffered by not wearing protective gear. Likewise, if someone harms another via the improper use of a weapon (of any kind) then stick it to them.

    There is also another interesting tidbit in this story. The Chapel Hill City Attorney advised the council when it was considering the ordinance that the legality of the ordinances "... was ultimately a matter for a judge to decide."

    The really alarming thing about that statement is that the lawyer is absolutely correct. In most cases such as this the judge just substitutes his/her judgment for that of the legislative body. In this case Judge Hudson applied the Constitution. He is to be commended and his approach is to be commended to other judges, particularly some right here in Beaufort County.