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Amish appeal buggy ruling

A loss on orange safety triangle issue might send them packing

Sunday, October 20, 2002

By Tom Gibb, Post-Gazette Staff Writer

Prosecutors talked of an especially Spartan group of Amish creating a highway peril by eschewing state-mandated orange markers for their horse-drawn buggies.

For all the talk, though, prosecutors offered no proof, attorneys for the Amish say in a recent appeal to state Superior Court.

So the Amish should be let off the hook when it comes to the orange triangles that they deem a slur to God, their attorneys say.

This is a state vehicle code dispute cast by defense lawyers as a religious freedoms case -- "forcing the ... Amish to choose between worshipping God according to the dictates of their consciences and living in Pennsylvania," the lawyers say in their appeal.

"Where, as here, fundamental constitutional rights are at stake, the commonwealth must do more than offer conjecture, speculation and hypotheses, no matter how 'scientific' they may sound."

Lawyers from Reed Smith and the American Civil Liberties Union, working for free, are handling the Amish defense. Their foray to Superior Court is the latest round in a two-year impasse between the law and a fledgling community of about 80 Swartzentruber Amish, an austere fringe that spawned a settlement in northern Cambria County three years ago.

The law's rub with the Swartzentrubers is their refusal to use reflective orange triangles the commonwealth requires for slow-moving vehicles -- symbols meant to increase visibility and which, over three decades, have become a mainstay on the buggies of mainstream Amish.

Instead, Swartzentrubers -- about 5 percent of the nation's Amish population, most of them in Ohio -- outline the backs of their buggies with less garish gray tape that casts a silvery reflection toward car headlights. At night, the buggies carry an outside light.

That hasn't placated police. Twenty-seven traffic citations, each carrying $93 fines, have been handed to Swartzentruber members who refused to use the orange triangles, spawning the appeal to Superior Court.

The Swartzentrubers find the orange triangles intolerably "splashy and suggestive of vanity," a breach of beliefs that eschew symbols and dictate that "salvation and safety and trust should be in God alone," the appeal says.

If the state forces their hand, members of the Swartzentruber settlement say they'll pack off for somewhere else, probably to one of the nine states that don't require the orange triangle.

After hearing two days of testimony, Cambria County Common Pleas Judge Timothy Creany ruled in June that the gray tape "is not as effective as the [orange] emblem over the spectrum of situations" and didn't serve the safety of both Amish and non-Amish travelers.

Assistant District Attorney Heath Long agreed, saying the Swartzentruber community was "asking the judge to disregard the law," which the state Legislature refused in June to change.

Long had not seen the Superior Court appeal but said he stuck by his contention that the reflective tape isn't a safe substitute for orange triangles.

In their appeal, though, Reed Smith attorney Donna Doblick and ACLU lawyer Witold Walczak say Creany erred, that Long never demonstrated that the gray tape wasn't a workable alternative -- a key element he had to prove before the state vehicle code could trump Swartzentruber religious rights.

Long also showed no evidence of local accidents involving Swartzentruber buggies "and no evidence that more lives would be saved if the Swartzentruber Amish displayed the [triangles] on their buggies," according to the appeal.

Indeed, Levi Zook, a defacto spokesman for the Cambria County Swartzentruber settlement, opted for reflective tape over orange triangles 37 years ago and "has never been in an accident with a motor vehicle," the appeal says.

The appeal also says that a witness called as a prosecution expert should never have been allowed to try to debunk testimony from an expert who testified for the Swartzentrubers that the gray tape was indeed effective as an alternative.

The prosecution expert, a highway safety consultant, "had no more than approximately three or four days of training in visibility-related issues" and never examined the reflective tape the Swartzentrubers use, the appeal says.

Walczak and Doblick also show judges in Michigan, Minnesota, Wisconsin and Kentucky in harmony with them on the issue.

The Michigan Court of Appeals opined that statistics didn't show that the orange triangle cut down on accidents, and a Kentucky court said the Amish had a constitutional right not to display it.

According to the Kentucky ruling, in 1985, "A horse and buggy is universally recognized as a slow-moving vehicle, and no further warning is needed."

Tom Gibb can be reached at tgibb@post-gazette.com or 412-263-1601.

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