‘We kicked ass’

August marks 25 years on a significant legal win by OOIDA that nailed the Tennessee Public Service Commission for its mistreatment of out-of-state truckers.

August-September 2019

Sandi Soendker

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Late on the afternoon of Aug. 9, 1994, OOIDA’s legal counsel in Tennessee, Gary Blackburn, called Grain Valley, Mo., to bring the OOIDA president up to date on a particularly critical court decision. This ruling would not only leave a significant imprint on trucking history but would rain legal napalm onto the “good ol’ boys” way of mistreating truckers traveling through the state of Tennessee.

“I’ve got some good news,” Blackburn told Jim Johnston, longtime president of OOIDA, “and, to put it in perspective, you can’t slap the smile off my face right now.”

After a short exchange, the two hung up. Jim pushed his chair away from his desk and in three words announced loudly to a group of gathering employees, “We kicked ass!”

Years later, Johnston would describe the Tennessee Public Service Commission case as one of the most satisfying legal victories the Association ever won.

It was a long battle, a big win and one still savored by truckers. In 1990, OOIDA went to court against corrupt public officials in Tennessee who were not only ordering warrantless cab searches but also using state employees and agencies for political gain and discriminating against out-of-state truckers in the process.

OOIDA’s current president, Todd Spencer, was editor-in-chief of Land Line Magazine during those years. As a driver in the 1970s, he said he was always wary of driving through Tennessee because of the notoriously heavy-handed truck inspections. However, in the 1980s the Association began hearing disturbing and downright jaw-dropping stories from out-of-state truckers being subjected to warrantless searches as they were hauling through Tennessee. The searches were conducted by inspectors for the Tennessee Public Service Commission. OOIDA began keeping detailed records of complaints of drivers who were forced to consent to a cab search as part of a scale or roadside inspection.

OOIDA life member and owner-operator Dave Sweetman of Tallahassee, Fla., recalls being inspected and ransacked by what he called “gestapo PSC inspectors” as early as 1982 or so. In one instance, his Kenworth Aerodyne was searched at a scale in Jackson, despite his objection, for “contraband, like weapons, alcohol, porn” and such. Sweetman, who also is a columnist for Land Line, said the entire truck was plundered top to bottom.

“Another driver there asked, ‘Didn’t the inspectors need a warrant?’ and we were told ‘You are a commercial driver. You have no rights in Tennessee,” Sweetman said. “Any problems, and we will find something wrong no matter how long it takes.”

“Our members and others were being pulled over and subjected to some really rude and more-than-often rough warrantless searches,” Spencer recalls. “Inspectors searched bunks and went through truckers’ lunch coolers, looking in between slices of bread and lunch meat. Later, in the courtroom, they would insist they were searching the bunks for ‘exhaust leaks.’”

Drivers who refused the search were arrested and charged with refusing an inspection and were hauled off to pay a fine, Spencer said. After the fine was paid, the driver was released to go back to the truck only to again be faced with a search.

“We had some really shocking complaints from our members,” Spencer said. “Complaints like the one from owner-operator John Ferguson of Kentucky, who said he was stopped, inspected and his cab was searched while he was handcuffed to the truck’s side mirror.”

PSC officers rummaged through Ferguson’s belongings and paperwork and tossed them on the grassy shoulder of the road. One of the PSC inspectors admitted in court that following such an inspection the side of the road looked “like a yard sale.”

Spencer said OOIDA was stunned and outraged by the details of such reports.

Johnston, who died in 2018, used to tell the story of one incident when a non-Tennessean husband-and-wife team was put through a so-called inspection.

“During the incident, the wife – who had been taking her break in the bunk and was sick with the flu – was forced to stand on the roadside in the rain for an extended period of time because officers wanted to conduct a warrantless search,” he said. “That search ultimately turned up nothing.”

As the reports were confirmed and became more and more contemptible, OOIDA’s Board of Directors decided to take legal action.

One important thing that the Tennessee PSC failed to consider, Johnston has said, is those truckers would fight back – that they would document the incidents, make copies of tickets and provide their professional association with overwhelming evidence of wrongdoing. The PSC’s head commissioner simply underestimated an organization of truckers based in Missouri and their team of attorneys.

The Association was represented in the Tennessee case by its Washington, D.C., counsel, which included Paul Cullen Sr., K. Michael O’Connell and several other attorneys from Collier, Shannon, Rill and Scott. For Cullen – who remains OOIDA’s legal counsel – it was among the first of many cases he would take on for the Association. In addition, truckers were represented by W. Gary Blackburn, OOIDA’s local counsel in Nashville.

As the fact-finding unfurled, it became clear there was more going on than the terrorizing and warrantless cab searches. The PSC was shaking down trucking companies for donations to keep their commissioners elected to office – at the direction of the commissioners.

“We sued over the warrantless cab searches,” Spencer said. “At the time, we had no idea of the depth of the political corruption. All of that would unfold later.”

It became apparent that small-business truckers from out of state were considered the fairest game and bore the brunt of the inspections. For the most part, state-based trucking companies weren’t being searched or cited at all. The dark corruption at the root of it all was meeting the light of day.

Spencer recalled that during the summer of 1990 he and New Jersey Board Member Robert Driscoll and an OOIDA file clerk named Brenda Zinser spent a week in Tennessee going through records of tickets and making photocopies. Zinser, who is still employed at OOIDA, recalls a long grueling week at city hall in Nashville searching through a massive backlog of tickets in hopes of finding helpful evidence.

“We needed plaintiffs who were OOIDA members. The reason the Association sent me is that I was a file clerk, and I was familiar with many, many member names,” she said. “Jim was hoping I’d be most likely to spot tickets issued to members. It was overwhelming and like looking for the proverbial needle in the haystack. I couldn’t believe my eyes, there were so many tickets. They had been doing this for a very long time.”

Spencer recalled at the trial that one of the PSC inspectors said he was told “they will run out of money long before you run out of ink” for tickets.

“We went through stacks of banker boxes of tickets issued to truckers, looking for OOIDA members, patterns, tally sheets, PSC memos, orders and quota directives,” he said. “It was a daunting task but paid off big.”

Meanwhile, at OOIDA’s Missouri headquarters, documents and evidence of corruption continued to trickle in – reports of inspections and stories of quotas and how PSC officers were coerced to participate in the fundraising scheme.

“We got a lot of anonymous information by mail, and I remember I got one that was an official directive with quota requirements. The return address was the governor’s office,” Spencer said. “I was particularly amused that it was sent to me with a ‘Love’ postage stamp – remember those?”

“I think for me the case was so big because the officials’ conduct was so damned outrageous,” Johnston would later say. “By that, I mean everything from the cab searches and PSC truck enforcement officers shaking down out-of-state truckers to state employees being given undesirable assignments if they didn’t go along with it.”

Who was Keith Bissell?

The elected head of the PSC – a guy named Keith Bissell – was a particularly ambitious politician. The PSC and Bissell wrote a weekly newspaper column that was distributed to newspapers around the state. The column targeted truckers as its main topic and boasted on how effective the PSC was at stopping unsafe practices.

“The state’s PSC had long been used as a springboard to a higher political office,” Spencer said. “Old commissioners had gone on to be elected to Congress, governorships and the like. Bissell and his other two elected commissioners were blatantly amassing a campaign war chest, and they relied on the ‘donated’ money they collected from truckers to help keep them in office.

PSC inspectors were not part of the state patrol or any other police force. They often got their jobs because of political connections or contributions to political campaign funds of the commissioners.

“Keep in mind,” Spencer said, “they were just truck inspectors, but they were carrying guns.”

As the layers of corruption were peeled away, Spencer said the tales of “cronyism and good ol’ boy fundraising tactics” blew the top of his head off.

The in-state trucking companies who “paid their dues” were given immunity from tickets no matter how unsafe their trucks were. According to court documents, the PSC instructed inspectors to let them roll unless it looked like something was about to fall off the truck.

It was classic favoritism, and the court would later agree. If the Tennessee-based owner contributed to the PSC commissioners’ campaign fund, his company earned a spot on a special list, and his trucks were not supposed to get tickets.

The evidence was overwhelming. Officers testified that if a contributing motor carrier’s truck got a citation, it was “taken care of, case closed.” PSC officers testified they didn’t like doing what they were asked to do (“meet quotas”) and letting certain trucks go while citing others. Several testified that if they weren’t cool with putting the squeeze on truckers, they were reassigned to midnight shifts at a scale house in the boonies.

OOIDA et al v. Keith Bissell and the Tennessee PSC

 OOIDA’s local counsel in Nashville, Blackburn, described the victory over the politically corrupt PSC and the phone call to Jim Johnston on Aug. 9, 1994, as “one of the most gratifying moments of my 46 years at the bar.”

Based on verified complaints from members regarding abusive practices by Tennessee truck inspectors, OOIDA and one member – Mark P. Nye – filed a lawsuit in 1990 against the Tennessee Public Service Commission and its chairman, Bissell.

OOIDA members continued to report warrantless cab/sleeper searches, and in 1991 OOIDA expanded its lawsuit, adding Kenneth McFadden as a plaintiff.

In the initial complaint filed in U.S. District Court for the Middle District of Tennessee, OOIDA attorneys presented 54 pages of outrageous stories that could be described as “scorched earth.”

“We took over 70 depositions in the case,” Blackburn recalled.

In March 1992, U.S. District Court Judge Thomas Wiseman dealt truckers a setback and unexpectedly dismissed the cab search issue before it got to trial. OOIDA vowed to take warrantless searches of cabs and sleepers looking for “exhaust leaks” to a higher court – claiming those “inspections” were unreasonable and in violation of the Fourth Amendment. The case was appealed to the Sixth Circuit.

However, the strong case of discriminatory abuse of out-of-state truckers was not before Judge Wiseman, Blackburn said. The favoritism matter was still before Judge Robert Echols.

It wasn’t until March 1993 that OOIDA v. Commissioner Bissell and the Tennessee PSC finally faced the favoritism music as the historic case went to trial in Nashville.

“I remember when we arrived at the courthouse in Nashville I knew it would be a trial I’d never forget,” said OOIDA attorney Cullen. “The place was heavily guarded by U.S. marshals, as our first day in court took place during a big criminal trial. When our team of attorneys entered the courtroom, the tables were full of guns, many bags of illegal substances and more guns. We had to clear the drugs and guns off so we could sit down.”

But the OOIDA team of lawyers were soon ready and once they flipped open their snap-locked brief cases, it was apparent that the case dealt in more than allegations by truckers.

“We had proof of specific favoritism,” Blackburn said, “even of them letting trucks go in the face of out-of-service orders.”

In one example, the head of the Motor Carrier Division of the PSC admitted that he had been ordered to “take care of a ticket” issued to a Tennessee-based company. Because he had to “obey the orders of the commissioner,” the ticket was dismissed even though the officer insisted the truck had 12 violations, including eight out-of-service violations.

One inspector testified he had issued a citation for an inoperative emergency flow control valve on a gasoline tanker but was immediately phoned by a superior who told him “it was OK.”

Another inspector testified he was told to dismiss a ticket he wrote in which three of 10 brakes were out of service, despite the fact the truck was destined to cross Monteagle Mountain.

From his office in Nashville, Blackburn recalled details of the trial with relish.

“The East Tennessee captain was called as a witness by the PSC,” he said. “He gave a rehearsed version denying favoritism. We broke after his direct, and Commissioner Bissell strode up to Tom Humphreys, a veteran reporter for a Knoxville newspaper, and arrogantly asked, ‘What did you think of that?’  Tom replied: ‘Pretty good, Commissioner, but we haven’t heard the cross yet.’”

That the captain then was forced to admit that a truck on the Pellissippi Parkway (between I-40 and the Alcoa Highway) was pulled over while operating despite having been placed out of service, Blackburn said.

“The driver called his boss, who had given money to Bissell.  He ‘called Nashville’ and a representative of the commissioner got the officer at the scene on the phone. The officer was ordered to escort the truck and its heavy steel cargo to its destination so the cargo could be delivered. No citation was issued.”

Blackburn recalls that Bissell had a fundraising event at the posh Club LeConte in Knoxville. It was said that people threw cash into a bushel basket at the event, which is a campaign finance violation.

“I asked the captain if it were not true,” Blackburn said. “He denied it at first, but then was forced to admit that cash had been thrown into a fruit basket, a distinction without a difference. When he left the stand, Humphreys stopped Bissell and asked, ‘What did you think of that?’”

The Knoxville news reporter got no answer from Bissell.

Tennessee has 95 counties, Blackburn said. There are three so-called “grand divisions” in the state and three captains supervised them.

Then there was a fourth captain, with responsibility over three or four small rural counties on the Kentucky border.

“This fellow was a bag man, pure and simple,” Blackburn said, recalling his favorite trial anecdotes. “Trucking companies were allowed to get a ‘terminal inspection.’ This allowed them to prepare for the inspection in advance and for the trucks to be stationary between the prep work and the inspection. Of course, drivers and sleeper bunks were not at risk in this arrangement.  The passing companies were then given Commercial Vehicle Safety Alliance windshield stickers and were exempt from inspections for 90 days.

“This advantage was not available for out of state companies and independent drivers, of course,” Blackburn said. “Captain Bagman would visit the terminals and sell tickets to a political event while the inspections were underway.”

The trial lasted 11 days, but it would be more than a year before U.S. District Judge Robert Echols ruled. When he did, he found ample evidence that truckers’ rights were violated under the orders of Tennessee’s PSC Commissioner Bissell. Almost 18 months after the trial, U.S. District Court Judge Robert Echols ruled that PSC officials illegally discriminated against truck drivers who refused to pay a political contribution to the PSC’s campaign war chest. An injunction was ordered. The victory was hailed by hundreds of thousands of truckers and trucking companies. That was August 1994.

OOIDA spent more than five years and $1.5 million battling the most powerful political regulatory agency in the state – an agency that had almost unlimited financial and legal resources at its disposal. As OOIDA exposed the injustice, the Tennessee Bureau of Investigation stepped in to uncover more abuse. Headlines exploded with the news and state government was in an uproar.

In the end, the state public service commission was stripped of its authority to enforce trucking regulations. The scandal led the administration of Gov. Don Sundquist to push to abolish the office in 1995. The Tennessee General Assembly acted that year to abolish the Public Service Commission, replacing it with the Tennessee Regulatory Authority, consisting of three members, with one member each appointed by the governor, the lieutenant governor, and the speaker of the Tennessee House of Representatives.

OOIDA’s case was cited as a principle reason for that happening.

The Public Service Commission ceased operation on June 30, 1996, and the Regulatory Authority began operation the following day.

In 1997, the Court of Appeals for the Sixth Circuit voided the injunction won by OOIDA, stating that it was “too vague” and that the PSC no longer existed. However, it did not void U.S. District Court Judge Echols’ declaration that the truckers’ rights had been violated. The case was then returned to Echols for reconsideration.

Echols, in a new ruling announced the first week in July 1997, agreed with the Sixth Circuit that the injunction was “pointless” but declared that OOIDA was still the “prevailing party” or winner in the case and deserved to be awarded the payment of reasonable attorney fees plus court costs.

In 1998, former PSC chief Bissell was ordered to pay OOIDA court costs, and on July 17, 2000, the state of Tennessee issued a check to OOIDA in the amount of $583,700. The money went to the OOIDA litigation fund.

It would be 10 years after the initial filing of the case that OOIDA would recover a part of those costs. Then-President Johnston said getting some of that money back was important – “that’s a helluva lot of money – but the fight was all about halting the abuse.”

It’s an important thing for OOIDA members to understand why we have pursued these legal actions, he often said.

“These cases are not just about enforcement. They are about legal interpretation and precedent and how truckers are treated now and how they will be in the future. Like others, Tennessee was about building a foundation in the law, and we did it because nobody else ever would.” LL

Sources: OOIDA President 1975-2018 Jim Johnston; OOIDA President Todd Spencer; Paul Cullen Sr. of The Cullen Law Firm, Washington, D.C.; W. Gary Blackburn, Blackburn Law Office, Nashville, Tenn.; owner-operator and OOIDA life member David Sweetman, Tallahassee, Fla.; OOIDA staffer Brenda Zinser, Odessa, Mo.; Land Line Magazine; Nashville Banner; The Tennessean; Court documents from the U.S. District Court for the Middle District of Tennessee and from the U.S. Court of Appeals for the Sixth Circuit.