ABATEMENT at Common Law
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Abatement at Common Law Melvin Stamper, JD.
"We can have intellectual individualism and the rich, Cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State,... the price is not too great; But freedom to differ is not limited to those things that do not matter much. That would be a mere, shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Board of Education v. Barnette, 319 U.S. 624, (1943).
COMMENTS FROM THE PROFESSOR
ON TRAFFIC CITATIONS AND INTRODUCTION TO ABATEMENT
There are many who believe that special appearances (by paper work, motions, etc.) nullify a court’s jurisdiction. Under emergency powers this is false doctrine. There is no remedy in challenging a courts jurisdiction, except by abating its process, first. Abatements are not a challenge to a courts jurisdiction, merely a good faith attempt to correct errors in process, "correct the errors judge and I'll appear."
Special appearances fail when a judge knows what he's doing; under martial rule, judges do whatever they want, whenever they want so long as he/she does not alarm the public or disturb the peace. Jurisdiction is always granted to try jurisdictional questions, even if one goes to higher courts. Defendants grant jurisdiction without knowing it, because they never challenge the process that creates the jurisdiction in the first place. (See FRCP §2.4 (2)(4))
Process is perfected by appearance, special or otherwise. Also remember the court is not the building the judge or anyone else, it’s the paperwork. If the court paperwork is defective there is no court and it ceases to exist. The only way to overcome the War Powers court process is by Abatement.
Traffic
tickets are a pain for all of us. When using this abatement
strategy, first send in the Notice of Abatement, Memorandum
of Law and Denial of Corporate Existence to the Clerk of Court.That
generally takes care of the pesky ticket. If you do not hear
from him within 15 days, send in the Default Notice of the Notary
to the Clerk. If you receive a summons, which has the proper
signature of the judge and the court seal, send in the Subpoena
and Discovery Interrogatories to the Prosecuting Attorney and
the court. Your challenging jurisdiction and the opposing party
must traverse your challenge or the court cannot proceed. In
most cases they will never give you the documents you have requested
or answer your questions, if they do, you won. The people granted
authority to the state legislature to adjudicate only a few
matters: Actions at law, actions in equity, and actions under
the rule of necessity (military). Admiralty was remanded to
the federal government and the states (are supposed to) have
no authority to legislate in this jurisdiction. There was a
time when someone aggrieved of harm would file a tort at law.
And the nature of the action governed the rules of the procedure.
If there was a breach of contract, then this was an equity matter.
If the aggrieved party could allege a tortious breach of contract,
this matter was moved from the equity side of the court into
the law side.
This is because the people must have access to a remedy at law
if this type of action could give relief. If one were in the
military, or if one were under territory under martial law,
the court was a military court. If there was a breach of an
international contract, the matter was federal and heard under
admiralty.
The state legislature cannot vest a "court" with authority that
has not been delegated to it by the people via the constitution
of the state. They cannot create a new "nature of action" out
of thin air. Later on, when the Constitutions of the several
states were amended to recognize and administrate corporations,
a separate court was established, and the action was in the
nature of administrative.
Human beings could not be brought into administrative courts,
as the only matter at issue was a breach of corporate charter
by an artificial person. Somewhere along the line, the announcement
in the complaint of the nature of the action was lost.
The attorneys all got together and decided that it would be much "simpler" (for them) if there were only one form of action. So today, there is no disclosure of the nature of the action, unless one demands to know the nature and cause of the accusation by using a demand for a bill of particulars.
I have been quite successful with this procedure, even in states
that have decided that a demand for bill of particulars is a
discretionary motion before the court. For example, in Pennsylvania,
the demand for bill of particulars used to be prior to arraignment
so that one had an opportunity to raise a meaningful defense
against the elements of personal jurisdiction and "venue" (to
include territorial jurisdiction as well as the "nature of the
action" that used to be a part of subject matter jurisdiction).
Within the past couple decades, they moved it into "discovery",
which is after arraignment, so the ability of one to challenge
the jurisdiction and venue of the court was lost.
This is because entering a plea ACCEPTS the jurisdiction. In
this way, only subject matter jurisdiction was challengeable.
If they say this is a matter at law, my defense against this
jurisdiction is whether or not there is a damaged party. I do
not ask if this is an equity jurisdiction because equity is
not a criminal type of action.
If they say this is a matter in hustings (which is the true
nature of action of all administrative law), my defense against
this jurisdiction is that I am not an artificial person (unless
I am a federal citizen - but that is quite another matter entirely),
unless they can show from the records in the Secretary of State's
office that I have charted as such.
If they say this is an admiralty matter, my defense against
this jurisdiction is whether the offense was committed on federal
territory over which the state has retained concurrent jurisdiction
(although I still have-not found how the state exercises an
admiralty jurisdiction in light of 28 USC § 1333).
If they say this is a military matter, my defense against this
jurisdiction is that1) I am not a member of their military (I
am, however, a member of the militia of one of the several states
- but they do not operate as such anymore), 2) the nation is
not under martial law (or is it?).
Given the fact that there are currently 14 Notices from the
President’s of a Declaration of National Emergency published
in the Federal Register, we may very well be in a state of martial
law. The one from March 6, 1933 is still in effect today.
However, they are not going to admit the nature of the action,
as this will admit their want of jurisdiction on the record
for all to see, so THEY move to dismiss the charges. Every time.
While I will never succeed in bringing down the current regime
in this manner, at least other folks see what I am doing and
some decide along the way that they want to learn this procedure.
I contend that if only 10% of the people enforced their right
to know the "nature and cause" of the accusation, that we could
most certainly shut down the incessant stream of revenue being
fleeced from the people by these "administrative" courts. As
far as the "compelling government interest" doctrine, this is
clearly matter founded in law martial rule - the military authority
is in the process of returning control to the civil authorities,
but has not yet completed the process
I simply do not understand the nature and cause of the accusation
with regard to the elements of personal jurisdiction, venue,
and the nature of the action until the prosecution properly
alleges them. I am therefore unable to enter a plea to the charge
until I have had an opportunity to raise a meaningful defense
against these elements. I cannot rebut an unstated presumption.
The courts operate on silent judicial notice of presumption
all the time. It is time for this to end.
Generally, when you appear the Police Officer is not there because he has been instructed to stay home that day. You simply move for a dismissal for lack of prosecution, as the Prosecutor cannot testify to facts, which he has no first hand knowledge of. Be especially careful of the judge’s conduct, he is required by his Oath of Office to be an impartial trier of fact, not the assistant prosecutor.
Have fun but please do not abuse this procedure or it may become ineffective because of the abuse.
Melvin Stamper, JD.
Certified
Mail No.
Dated:
To:(Name
of Judge)
(Circuit Court)
(Address)
City, State, zip
From:(Your
Name)
(Address)
(City, State, Zip)
The Honorable
(Name of Judge),
When I specially visit your court on a forced response on (Date
of Hearing) to a Bill of Pains and Penalties issued by the (Officer
Name) employed by the (Police Agency), employed by the corporate
(YOUR STATE), I move this court and you, (Judge Name), to take
judicial notice that my special visitation was forced, that
my visitation is special, and not general, since this notice
is my timely and specific objection to the presumptions upon
which a false conclusion of law has been made administratively
with regard to my status before this court.
The plaintiff in this case is
an administrative officer representing the corporate and de
facto (YOUR STATE), which has legislative power to compel performance
upon the letter of its statutes upon all persons subject to
its jurisdiction. The only due process that its legislative
courts recognize is the right to be heard on the facts of the
case.
The corporate plaintiff in this
criminal action before this court has made an unproven conclusion
of law that (Your Name) is among those persons who have lost,
or otherwise abandoned, their status in the guaranteed "Republican
Form" of Government and who must perform under legislative power
upon the exact letter of every legislative statute with no due
process of law protection other than that outlined in paragraph
two of this letter.
It is from this false
conclusion of law that administrative officer (Officer Name)
issued the contested Bill of Pains and Penalties upon (Your
Name).
This court must take judicial Notice that (Your Name) an un-enfranchised individual has made a contrary conclusion of law to that of plaintiff. (Your Name) claims his guaranteed, fundamental and unalienable rights stemming from both the National and State constitutions to full due process of law in all criminal actions against him, means he is subject only to judicial power, not legislative power. Said judicial power when exercised over him requires a corpus delicti or a damaged party who has sworn out a verified complaint against him. This is lacking in the criminal complaint against (Your Name) brought on by plaintiff.
So, the unlawfully charged (Your
Name) declares that his un-enfranchised status as a preamble
American Citizen of the guaranteed "Republican form" of government
known as The United States of America and inhabitant of (Your
State), that without a corpus delicti, no court judicial or
legislative tribunal has a criminal jurisdiction over his person
or property.
Therefore, the accused specially
visits before the law side of this court seeking its protection
from the excess zeal of corporate government, trusting that
this court will assume a neutral stance at law and require the
corporate plaintiff in this criminal action to prove its in
rem and, or, in personam criminal jurisdiction over the accused
to be a fact of law before this court will take on the role
of judging the facts of this legislative charge brought before
you. Your Oath of Office compels nothing less from you.
Cordially yours,
_____________________________
(Your Name), sui juris
Clerk of the Court(Date)
AddressNOTICE
OF ABATEMENT
City, State, zipCertified
Mail #
To The Honorable (Name of
Judge)
Reference: (STATE NAME) UNIFORM
TRAFIC CITATION AND COMPLAINT # ??????
Honorable (Clerk Name),
I am noticing you to Abate
the above referenced (State Name) Uniform Traffic Citation and
Complaint # ????.
I (Your Name) am a natural
man, living on the land of the State of (Name). I am not exercising
my right to travel freely within this state to engage in commercial
activity. As my travel is not commercial, I am not subject to
being detained or summoned to the court by Officer (Name) exercising
the Police Power of the State to enforce its statutes in commerce.
Below are some of my reasons as to why I will not appear unless
defects in the service of process are corrected. NOTICE OF ABATEMENT OF IMPROPER SERVICE
I am in
receipt of a document titled in Capital Letters as (NAME OF
STATE) UNIFORM CITATION AND COMPLAINT dated
. I have received but
have not accepted the Uniform Traffic Citation and Complaint
and am hereby rejecting said document for cause without dishonor.
I am returning said document marked "Without Prejudice" thereby
retaining all of my Rights in Law and Equity as I challenge
the subject matter and in personam jurisdiction of the court
for the following causes:
Courts enforcing mere statutes
do not act judicially merely ministerial, having thus no judicial
immunity, and unlike courts of law do not obtain jurisdiction
by service of process nor even arrest and compelled appearance.
Boswell v. Otis, 9 Howard 336, 348.
Service of a traffic ticket
on a motorist does not give the court jurisdiction over his
person... Service of a traffic ticket imposes no compulsion
on him, and no penalty attached for failure to heed it... Purpose
of traffic ticket is to secure the motorist's voluntary appearance.
Colville v. Bennett, 293 NYS 2d 685.
If the (NAME
OF STATE) UNIFORM TRAFFIC CITATION AND COMPLAINT is a Summons
requiring my appearance, the following defects must be corrected
before I will submit to the courts’ jurisdiction.
The mandate contained within
Amendment V of the United States Constitution requiring “due
process,” i.e., meaning initiatives through judicial courts
with proper jurisdiction, precedes the imposition of administratively
issued summonses, except where licensing agreement obligate
assets.I have no knowledge
of (Your Name) having any licensing agreement(s) with the County
of (Name), State of (Name), or the United States, which obligates
assets and I demand strict proof to the contrary.
The Police Officer (Name), (State
Name) Uniform Traffic Citation and Complaint, in issue does
not meet the legal definition of a judicial “summons” as follows:
“Summons.Instrument
used to commence a civil action or special proceeding and is
a means of acquiring jurisdiction over a party.Writ
or process directed to the sheriff or other proper officer,
requiring him to notify the person named that an action has
been commenced against him in the court from where the process
issues, and that he is required to appear, on a day named, and
answer the complaint in such action.Upon
the filing of the complaint the clerk is required to issue a
summons and deliver it for service to the marshal or to a person
specially appointed to serve it.Fed.R.Civil
P. 4(a).”Blacks Law Dictionary,
6th Edition, p. 1436.
Note:There
are no definitions for the terms “administrative summons” in
Black’s Law Dictionary, 6th Edition.
The (State Name) Uniform Traffic
Citation and Complaint in issue neither indicates on its face
that a lawsuit is pending, nor does it comply with the rules
for“form and content”
of civil summonses and is defective in the following ways:
(a)
The
(State Name) Uniform Traffic Citation and Complaint does not
bear the signature of the clerk of the court.
(b)
The
(State Name) Uniform Traffic Citation and Complaint does not
have the seal of the court placed upon it.
(c)
The
(State Name) Uniform Traffic Citation and Complaint does not
contain the name of the court upon it.
(d)
The
(State Name) Uniform Traffic Citation and Complaint does not
contain the names of the parties to the cause of action with
their respective designations as plaintiff and defendant.
(e)
The
(State Name) Uniform Traffic Citation and Complaint does not
contain the name and address of the plaintiff’s attorney or
plaintiff’s address per se.
(f)
The
(State Name) Uniform Traffic Citation and Complaint does not
contain the mandatory notice to the defendant of the time and
place in which the defendant is to appear and defend.
(g)
The
(State Name) Uniform Traffic Citation and Complaint does not
contain the proper default warning language to defendant. (h) The (State Name) Uniform Traffic Citation and Complaint does not have a copy of the plaintiff’s complaint and probable cause affidavit attached.
(i)
Without an attached complaint and probable
cause affidavit or Bill of Particulars, petitioners have no
way of knowing what the nature and cause of the underlying complaint
is about and what relief the plaintiff demands.
(j)
Officer
(Name), himself, “served” said (State Name) Uniform Traffic
Citation and Complaint and is the party who has an “adversarial
interest” in the instant matter.
Note:
“A ‘Summons’ may be served by any person who is at least
18 years of age and not a party to the action.”Caldwell
v. Coppola, 219 Cal.App.3rd, 859.
The prohibition of personal service of process by parties is
to discourage “fraudulent service by persons with an adversarial
interest in a legal action.”
It appears from the returned document, that your organization
is requesting my voluntary appearance, but threatening me with
conviction and judgment for an undisclosed amount exceeding
the base fine if I do not voluntarily comply.
In light of the case law cited
above and by voluntarily subjecting myself to your organization's
jurisdiction I would put my personal property at a substantial
risk of loss.
Your organization's coercive
threats of retaliation for the exercise of stewardship over
my personal property seem inappropriate and unconstitutional
in denying me due process of law. Especially inappropriate,
in light of the fact that I am advised by a decision of the
United States Supreme court to pause, reflect and accurately
ascertain your organization's official capacity and authority.
Since "…whatever the form
in which the government functions, anyone entering into an arrangement
with the government takes the risk of having accurately ascertained
that he who purports to act for the government stays within
the bounds of his authority..."Federal Crop Insurance
Corp. v. Merrill, 332 U.S. 380 at 384 (1947).
I have included an attachment
to this Notice of Abatement; a Memorandum of Law on the subject
of my Right to travel upon the public highway. I think that
it will enlighten you as to my position and give you ample evidence
and reason to abate the Traffic Citation.
I expect your response to my
Notice of Abatement and correction of the errors, by the issuance
of a proper Summons or an Affidavit in rebuttal to the stated
legal position. Signed by the appropriate judicial officer in
black ink with the court seal of your organization and service
of the Summons by the County Sheriff.
Demand is made for a Bill of
Particulars identifying the jurisdiction, venue, nature
and cause of the accusation
so that I may mount an aggressive defense.
Demand is made of the plaintiff,
if this is a common law action, to bring forward an Affidavit
of damaged party, and a verified complaint.
In addition, a clarification
of any error you claim I have made in this Abatement along with
all the documents you offer in support of your position, within
the reasonable time period of 15 days of your receipt of this
Notice of Abatement. If you need additional time please make
your request in writing and it will be granted.
If I do not hear from you in
15 days, your lack of response will establish the presumption
that the returned document was improperly served, that there
exist no un-resolved material facts in issue or that a controversy
between the parties exist. A Notice of Default will be issued
to you. By your acquiescence in the matter your organization
will have accepted my position as being applicable in this instance,
thus closing the matter. Time is of the Essence.
GOVERN YOURSELF ACCORDINGLY
Respectfully,
______________________
(Your Name, Sui Juris
Address
City, State, Zip
Phone Number Registered Mail # Affidavit
of (Your Name) - Page One of Two
Affidavit
of Denial of Corporation Existence of (Your Name)
One, (Your
Name), a living, breathing man, declare and state that the following
facts are true to the best of my knowledge and belief and of
which One has first hand knowledge of the matters stated herein.
One, (Your Name), is of the age of majority and competent to
testify on the matters stated herein. If any man or woman desires
to answer this Affidavit, please do so in the manner of this
instrument; by Notarized Affidavit, using your Christian or
family name for signature and mail to the below named Notary
address provided, within five (5) days or default will be obtained.
You’re written signature only do not type it out.
1.
One, (Your Name)
hereby denies that the following corporations exist and their
capacity to sue or be sued, challenge by negative averment pursuant
to FRCP 9(a):
THE UNITED STATES,
a.k.a. THE UNITED STATES OF AMERICA
THE STATE OF (NAME)
THE COUNTY OF
(NAME),
(NAME) CITY,
ALL BAR ASSOCIATIONS,
THE UNITED STATES
DISTRICT COURT,
(YOUR NAME ALL
CAPS) of (Address, CITY (NAME), (STATE NAME) and
All other Corporate
Members who are, or may be associated with any complaints against
my natural body.
2.
One (Your Name)
has no Contract with the State or Federal governments, which
give Equity Jurisdiction to the Courts. One has no bank account,
no credit cards.
3.
One has rescinded
the governments Social Security Number and any present or future
benefits, of that socialist system for religious conviction.
4.
One (Your Name),
has signed no International Maritime Agreement with the State
of (Name) or Federal governments, either intentionally, willingly
or knowingly, which would give Admiralty or Vice Admiralty jurisdiction
to the Courts of either the state or federal governments and
does not voluntarily submit to any of those jurisdictions.
5.
One (Your Name)
is subject only to the common law of the Republic State of (Name)
and United States of America and is not subject to a Corporation
or its system of Administrative Law.
6.
One (Your Name),
is not a Corporation or Member of a Corporation, a Trustee or
Beneficiary of any Trust created by government; is not a legal
fiction or a juristic personality and refutes any unknown nexus,
which might attach him to any such entity or jurisdiction.
7.
One (Your Name)
cannot be held in involuntary servitude pursuant to Amendment
13 of the Constitution for the United States of America. One
cannot be held as surety or collateral for Affidavit of (Your Name), - Page Two of Two
any Bankruptcy
of the Federal or State governments without my permission, which
has never been given.
8.
One (Your Name)
has never applied for Bankruptcy and never given his permission
to the State of Federal governments for his participation in
any bankruptcy scheme of the Federal or State governments or
the Federal Reserve Bank, Inc.
9.
One (Your Name)
is a Natural Human Soul, living upon the land of the Sovereign
Republic of (Name).
10.
One (Your Name)
is not subject to federal law legislated by Congress under its
authority of Article IV of the Constitution for the United States
or state or federal Admiralty/Equity judicial jurisdiction.
11.
One
(Your Name) is subject only to law legislated by Congress under
its authority of Article I of the Constitution for the United
States, if the law has complied with the Paperwork Reduction
Act, the Administrative Procedures Act and the Federal Register
Act, which would specifically identify the law as being applicable
to the general population of the 50 Union States.
12.
One
(Your Name) is subject only to a Republican Form of government,
pursuant to the federal Constitution and the Constitution of
the State of (Name) under the equal footing doctrine of the
Constitution for the United States of America, not a Corporate
form or Military form of government known as a Democracy or
Martial Rule.
13.
Savings
statutes have been in place since the beginning, but generally
not understood by the general population or the legal profession.
Citing "including trial by jury" preserves the full slate of
due process rights included in the Fourth, Fifth, Sixth, and
Seventh Amendments to the Constitution for the United States
and corresponding provisions in constitutions of the several
Union States. As "existing law" is constitutional and common
law is indigenous only to the several States, in the absence
of legitimate federal common law, which extends to the several
States, those government employees who operate under color of
law are subject to the foundation law of the Union States. In
the absence of legitimate federal common law, which extends
to the several States, in order to retain all common law rights
in the instant matter and to secure proper jurisdiction and
venue in a Article III Common Law Court of the State of (Name),
(Your Name) invoke the Savings to Suitors clause pursuant to
28 U.S.C.A. 1331(1).Shannon
v. City of Anchorage, Alaska, 478 P.2d 815, 818. (Your Name)
demand the full slate of due process rights including trial
by jury pursuant to FRCP 38(b).
Further Affiant
sayeth not.
____________________________________
(Your Name)
Sui juris
NOTORIAL
On the
day of
2002, a man who identified
him as (Your Name) appeared before me, a notary, and attested
to the truth of this affidavit with his signature.
___________________________
Name of Notary
and his Address
Information only:
Don’t replace the One with I, as I, is not you it is merely
a signifier of a Number or entity.
Use the Notary address for their response to you not your own.
If within five days or their receiving the Affidavit they do
not answer, type up a Notice of Default and send it to them,
the Notary is the one who signs the default notice.
·
Three copies of this affidavit should be (preferably) handwritten;
one copy forwarded to the U.S. Attorney in time to give them
five days to respond and send it Registered Mail so that she
has to sign for it.
·
One copy should be kept
on you when you go to court and thirty minutes before you enter
the court, file one in their court record
·
Have the clerk stamp the other and keep with you in court in
case the prosecutor and judge have not received their copies.
IN THE DISTRICT
COURT OF THE (NUMBER)
Judicial CIRCUIT
(CITY) DIVISION
In the “State
of (NAME)”
State of (NAME), inc.,)
Case No: )notice and demand for And All Other Persons Known and Unknown;)abatement And All whom may be Concerned,) ) Accuser(s)) v.) ) Spell your name Up and Lc, Sui Juris) ) Accused.) _______________________________________ )
notice and demand
for abatement AND MEMORANDUM OF LAW IN SUPPORT Now, comes the Accused (Your Name), sui juris, by his own authority, appearing specially and not generally or voluntarily so as not to confuse the court and challenges the jurisdiction of this court. But being under threat of arrest if he failed to appear, at no time does the Accused submit to the Jurisdiction and Venue of the above-entitled court and at no time waving any Rights whatsoever knowingly or unknowingly. Accused asks the Court to take judicial notice of the fact that he is without counsel, is not schooled in the law and legal procedures, and is not licensed to practice law. Therefore his pleadings must be read and construed liberally. See Haines v. Kerner, 404 US at 520 (1980); Birl v. Estelle, 660 F.2d 592 (1981). Further accused believes that this court has a responsibility and legal duty to protect any and all of the accused constitutional and statutory rights. See United States v. Lee, 106 US 196,220 [1882]
The Accused gives notice that this proceeding be abated or dismissed
immediately or show cause why the Accused should not take all
lawful recourse against the accuser(s).
I.ARGUMENT Can the state legislature with the power to make all laws and needful rules, abrogate by that power the Citizens constitutional guarantees? Accused (Name) believes that they may not. 1. The Accused is possessed of all rights pursuant to the Constitution for the United States of America, the Constitution of the (Name of State) State, common law and the rules applicable to criminal procedure. 2. The Accused makes this special appearance in order to determine what rights will be afforded him by this court and which rights will be denied. 3. Due process requirements of the federal and state constitutions require among other procedures that the Accused be furnished by the plaintiff with a verified complaint of injury, so that the Accused may consider a plea other than guilty. 4. By the Plaintiff not being afforded this fundamental right, he cannot determine the nature of the offense he is being charged with that has caused damage to the plaintiff; or what plea other than guilty is available to him. 5. By denying the Accused the accusatory instrument, the court is denied subject matter jurisdiction, as there is no valid charging document before the criminal court at the time of the arraignment. 6. Absence of a verified complaint or information denies the court of subject matter jurisdiction and even if the accused appears in court the judge cannot arraign him unless the accusatory instrument has been filed. 7. In order for the court to have subject matter jurisdiction, the police officer who has issued and served the appearance/traffic ticket must, at or before the return date, file with the criminal court a misdemeanor complaint, a simplified information or an information charging the person named in the appearance ticket with the offence specified therein. 8. It may be that the court has a misunderstanding of what the law requires and that the signed appearance ticket is a sufficient document upon which to arraign (Your Name) 9. The “appearance/traffic ticket” utterly fails to meet the requirements of an accusatory pleading in that it fails to state the title of the action, the name of the plaintiff, or contain a statement of the public offense which it allegedly charges; it fails to constitute a accusatory pleading since it is not sworn to before some officer entitled to administer oaths. 10.In addition the appearance/traffic ticket is not subscribed by any prosecutor, it is signed by the police officer, but he is only a witness and is not identified as one who is authorized by law who may be a prosecuting attorney representing the people. 11.As the prosecuting attorney does not subscribe the “appearance/traffic ticket” the people, of this great state of (Name of State), have not charged the accused with any crime whatsoever. 12.Without an accusatory instrument subscribed by the prosecuting attorney, charging the accused with a crime, there is no charge for (Your Name) to plea to or to defend against. 13.The Accused (Your Name) has met the plaintiff (whoever that may be) step by step, by this special appearance as he agreed to and promised in the “appearance/traffic ticket”; it would be the plaintiff who has chosen not to prosecute, by not filing a verified complaint, therefore depriving this court of any jurisdiction. Therefore, (Your Name) notices this Honorable court to abate the “appearance/traffic ticket” numbered (Number of the ticket) for lack of jurisdiction.
Respectfully submitted,
____________________________ (Your Name) Address City, State, zip Phone Number
ACCUSED MEMORANDUM OF LAW IN SUPORT OF NOTICE TO ABATE
This memorandum will be construed to comply with provisions necessary to establish presumed fact, Rule 301, Federal Rules of Evidence, and attending State rules. Should interested parties fail to rebut any given allegation of fact or matter of law addressed herein with specificity, the position will be construed as adequate to meet requirements of judicial notice, thus preserving fundamental law. Matters addressed herein, if not rebutted, will be construed to have general application. This memorandum addresses the issue of state statutes, regulation and licensing of a constitutional right to free travel upon the public roads of the Citizen.
PRESPECTIVE If ever a judge understood the public’s right to use the public roads, it was Justice Tolman of the Supreme Court of the State of Washington. Justice Tolman stated:
“Complete
freedom of the highways is so old and well established a blessing
that we have forgotten the days of the Robber Barons and toll
roads, and yet, under an act like this, arbitrarily administered,
the highways may be completely monopolized, if, through lack
of interest, the people submit, then they may look to see the
most sacred of their liberties taken from them one by one, by
more or less rapid encroachment.”
Robertson vs. Department of Public
Works180 Wash 133, 147. The words of Justice Tolman ring most prophetically in the ears of Citizens throughout the country today as the use of the public roads has been monopolized by the very entity which has been empowered to stand guard over our freedoms, that of state government. II.RIGHTS The “most sacred of liberties” of which, Justice Tolman spoke was personal liberty which have been placed in conflict by the plaintiff. The definition of personal liberty is: “Personal
liberty, or the Right to enjoyment of life and liberty, is one
of the fundamental or natural Rights, which has been protected
by its inclusion as a guarantee in the various constitutions,
which is not derived from, or dependent on, the U.S. Constitution,
which may not be submitted to a vote and may not depend on the
outcome of an election. It is one of the most sacred and
valuable Rights,as sacred as the Right to private
property...and is regarded as inalienable”
16 C.J.S., Constitutional Law, Sect.
202, p.987. This concept is further amplified by the definition of personal liberty:
“Personal liberty largely consists
of the Right of locomotion --to go where and when one pleases--
only so far restrained as the Rights of others may make it necessary
for the welfare of all other citizens.The
Right of the Citizen to travel upon the public highways and
to transport his property thereon, by horse drawn carriage,
wagon, or automobile,is not a mere privilege
which maybe permitted or prohibited at will, but the common
Right which he has under his Right to life, liberty, and the
pursuit of happiness.
Under this Constitutional guarantee one may, therefore, under
normal conditions, travel at his inclination along the public
highways or in public places, and while conducting himself in
an orderly and decent manner, neither interfering with nor disturbing
another's Rights, he will be protected, not only in his person,
but in his safe conduct.” [Emphasis added] II Am. Jur.(1st)
Constitutional Law, Sect. 329. p.ll35. and further...
“Personal liberty--consists
of the power of locomotion, of changing situations, of removing
one's person to whatever place one’s inclination may direct,
without imprisonment or restraint unless by due process of law.”
1 Blackstone’s Commentary 134; Hare, Constitution__.777; Bouvier’s
Law Dictionary, 1914 ed., Black’s Law Dictionary, 5th ed.
Justice Tolman was concerned about the State prohibiting the Citizen from the “most sacred of his liberties,” the Right of movement, the Right of moving one’s self from place to place without threat of imprisonment; the Right to use the public roads in the ordinary course of life.
When the State allows the formation of a corporation it may control its creation by establishing guidelines (statutes) for its operation (charters).Corporations who use the roads in the course of business do not use the roads in the ordinary course of life.There is a difference between a corporation and an individual. The United States Supreme Court has stated:
“...We
are of the opinion that there is a clear distinction in this
particular between an individual and a corporation,and
that the latter has no right to refuse to submit its
books and papers for examination on the suit of the State.The
individual may stand upon his Constitutional Rights as a
Citizen.He is entitled
to carry on his private business in his own way.His
power to contract is unlimited.
He owes no duty to the
State or to his neighbors to divulge his business, or to open
his doors to investigation, so far as it may tend to incriminate
him.He owes no such
duty to the State since he receives nothing there from, beyond
the protection of his life, liberty, and property.
His Rights are such as the law of the land long antecedent to
the organization of the state, and can only be taken from him
by due process of law, and in accordance with the Constitution.Among
his Rights are the refusals to incriminate himself, and the
immunity of himself and his property from arrest or seizure
except under warrant of law.
He owes nothing to
the public so long as he does not trespass upon their rights.” “Upon
the other hand, the corporation is a creature of the state.
It is presumed
to be incorporated for the benefit of the public.It
receives certain special privileges and franchises, and holds
them subject to the laws of the state and the limitations of
its charter. Its rights to act as a corporation are only preserved
to it solong as it obeys the laws of its creation.
There is a reserved
right in the legislature to investigate its contracts and find
out whether it has exceeded its powers.It
would be a strange anomaly to hold that the State, having chartered
a corporation to make use of certain franchises, could not in
exercise of its sovereignty inquire how those franchises had
been employed, and whether they had been abused, and demand
the production of corporate books and papers for that purpose.”
[Emphasis added] Hale vs. Hinkel, 201 U.S. 43,
74-75, (1906). Corporations engaged in mercantile equity fall under the purview of the State’s admiralty jurisdiction, and the public at large must be protected from their activities, as they (the corporations) are engaged in business for profit. “...Based
upon the fundamental ground that the sovereign state has the
plenary control of the streets and highways in the exercise
of its police power (see police power, infra.), may absolutely
prohibit the use of the streets as a place for the prosecution
of a private business for gain.They
all recognize the fundamental distinction between the ordinary
Right of the Citizen to use the streets in the usual way and
the use of the streets as a place of business or a main instrumentality
of business for private gain.The
former is a common Right; the latter is an extraordinary use.As
to the former the legislative power is confined to regulation,
as to the tatter it is plenary and extends even to absolute
prohibition.Since the
use of the streets by a common carrier in the prosecution of
its business as such is not a right but a mere license of privilege.”
Hadfield vs. Lundin, 98 Wash. 6571, 168, p. 516. It will be necessary to review early cases and legal authority in order to reach a lawfully correct theory dealing with this Right or “privilege”. Defendant will attempt to reach a sound conclusion as to what is a “Right to use the road” and what is a “privilege to use the road”.Once reaching this determination, we shall then apply those positions to modem case decision. “Where
rights secured by the Constitution are involved, there can be
no rule making or legislation which would abrogate them.”
Miranda vs. Arizona,384 U.S. 436, 491, (1966).
and... “The
claim and exercise of a constitutional Right cannot be converted
into a crime.” Miller vs. United States,230 V.
486,489, (1956).
and... “There
can be no sanction or penalty imposed upon one because of this
exercise of constitutional Rights.” Sherar vs. Cullen,481
F. 2d 946, (1973). Streets and highways are established and maintained for the purpose of travel and transportation by the public.Such travel may be for business or pleasure.
“The use of the highways for
the purpose of travel and transportation is not a mere privilege,but
a common and fundamental Right of which the public and the individual
cannot be rightfully deprived.’ [Emphasis added]Chicago
Motor Coach vs. Chicago, 169 N. E. 22 (1929);
Ligare vs. Chicago,28 N. E. 934 (1891); Boon vs.
Clark,214 S. W. 607 (1919);
25 Am. Jur. (1st) Highways Sect. 163. and... “The
Right of the Citizen to travel upon the public highways and
to transport his property thereon, either by horse drawn carriage
or by automobile, is not a mere privilege which a city
can prohibit or permit at will, but a common Right which he
has under the right to life, liberty, and the pursuit of happiness.”
[Emphasis added]Thompson
vs. Smith,154 S.E. 579 (1930). A Citizen has a Right to travel upon the public highways by automobile and the Citizen cannot be rightfully deprived of his Liberty.So where does the misconception that the use of the public road is always and only a privilege come from? “...For
while a Citizen has the Right to travel upon the public highways
and to transport his property thereon, that Right does not extend
to the use of the highways, either in whole or in part, as a
place for private gain.For
the latter purpose no person has a vested right to use the highways
of the state, but is a privilege or a license which the legislature
may grant or withhold at its discretion.”State
vs. Johnson,243 P. 1073 (1926); Hadfield,supra;
Cummins vs. Homes,155
P. 171; Packard vs. Banton,44 S. Ct. 256 (1924); Here the courts held that a Citizen has the Right to travel upon the public highways, but that he did not have the right to conduct business upon the highways.On this point of law all authorities are unanimous. “Heretofore
the court has held, and we think correctly, that while a Citizen
has the Right to travel upon the public highways and to transport
his property thereon, that Right does not extend to the use
of the highways, either in whole or in part, as a place of business
for private gain.”Barney
vs. Board of Railroad Commissioners,17 P.2d 82 (1932);
Willis vs. Buck, 263 P. 982 (1928).
and... “The
right of the citizen to travel upon the highway and to transport
his property thereon, in the ordinary course of life and business,
differs radically and obviously from that of one who makes the
highway his place of business for private gain in the running
of a stagecoach or omnibus.” State vs. City of Spokane,186
P. 864 (1920).
What is this Right of the Citizen which differs so “radically and obviously” from one who uses the highway as a place of business?Who better to enlighten us than Justice Tolman of the Supreme Court of Washington State?In State vs. City of Spokane,supra, the Court also noted a very “radical and obvious” difference, but went on to explain just what the difference is:
“The former is the usual and
ordinary right of the Citizen, a common right to all, while
the latter is special, unusual, and extraordinary.” “This distinction,
elementary and fundamental in character, is recognized by all
the authorities.” State vs. City of Spokane, supra. This position does not hang precariously upon only a few cases, but has been proclaimed by an impressive array of cases ranging from the state courts to the federal courts. “…the
right of the Citizen to travel upon the highway and to transport
his property thereon in the ordinary course of life and business,
differs radically and obviously from that of one who makes the
highway his place of business and uses it for private gain in
the running of a stagecoach or omnibus.The
former is the usual and ordinary right of the Citizen, a right
common to all, while the latter is special, unusual, and extraordinary.”
Ex Parte Dickey, (Dickey vs. Davis), 85 So. 782 (1915).
and... “The
right of the Citizen to travel upon the public highways and
to transport his property thereon, in the ordinary course of
life and business, is a common right which he has under the
right to enjoy life and liberty, to acquire and possess property,
and to pursue happiness and safety. It includes the right, in
so doing, to use the ordinary and usual conveyances of the day,
and under the existing modes of travel, includes the right to
drive a horse drawn carriage or wagon thereon or to operate
an automobile thereon, for the usual and ordinary purpose of
life and business.”Teche
Lines vs. Danforth.,12 So. 2d 784 (1943);Thompson
vs. Smith,supra. There is no dissent among various authorities as to this position. (See Am. Jur. [1st] Const. Law, 329 and corresponding Am. Jur. [2nd].)
“Personal liberty -- or the
right to enjoyment of life and liberty -- is one of the fundamental
or natural rights, which has been protected by its inclusion
as a guarantee in the various constitutions, which is not derived
from nor dependent on the U.S. Constitution... It is one of
the most sacred and valuable rights [remember the words of Justice
Tolman, supra.] as sacred as the right to Private property...and
is regarded as inalienable.” 16 C.J.S. Const. Law, Sect. 202,
p.987. As we can see, the distinction between a “Right” to use the public roads and a “privilege” to use the public roads is drawn upon the line of “using the road as a place of business” and the various state courts have held so. But what have the U.S. courts held on this point? “First,
it is well established law that the highways of the state are
public property, and their primary and preferred use is for
private purposes, and that their use for purposes of gain is
special and extraordinary which, generally at least, the legislature
may prohibit or condition as it sees fit.”Stephenson
vs. Binford,287 U. S. 251 (1932); Packard vs.
Banton,264 U. S. 140 (1924), and cases cited;
Frost Trucking Co. vs. Railroad Commission,271 U.
S. 582 (1926); Railroad commission
vs. Jater-City Forwarding Co.,57
S.W.2d 290; Parlett Cooperative
vs. Tidewater Lines,164
A. 313. So what is a privilege to use the roads?By now it should be apparent even to the “learned” that an attempt to use the road use as a place of business is a privilege.The distinction must be drawn between... Traveling upon and transporting one's property upon the public roads, which is our Right; Using the public roads as a place of business or a main instrumentality of business, which is a privilege. “[The
roads]...are constructed and maintained at public expense, and
no person therefore, can insist that he has, or may acquire,
a vested right to their use in carrying on a commercial business.”Ex
Parte Sterling,53S.W. 2d 294;Barney
vs. Railroad Commissioners,17 P. 2d 82 (1932);Stephenson
vs. Binford,supra. “When
the public highways are made the place of business the state
has a right to regulate their use in the interest of safety
and convenience of the public as well as the preservation of
the highways.” Barney vs. Railroad Commissioners,supra. “[The
state’s] right to regulate such use is based upon the nature
of the business and the use of the highways in connection therewith.”
Ibid. “We know
of no inherent right in one to use the highways for commercial
purposes. The highways are primarily for the use of the public,
and in the interest of the public, the state may prohibit or
regulate. The use of the highways for gain.” Robertson vs.
Dept. of Public Works,supra. There should be considerable authority on a subject considering the importance of this deprivation on the liberty of the individual “using the roads in the ordinary course of life and business.”However, it should be noted that extensive research has not turned up one case or authority acknowledging the state’s power to convert the individual’s right to travel upon the public roads into a “privilege”. Therefore, it must be concluded that the Citizen does have a “Right” to travel and transport his property upon the public highways and roads and the exercise of this Right and it is not a “privilege”. III.DEFINITIONS In order to understand the correct application of the statute in question, we must first define the terms used in connection with this point of law.As will be shown, many terms used today do not, in their legal context, mean what we assume they mean, thus resulting in the misapplication of statutes in the instant case. AUTOMOBILE AND MOTOR VEHICLE There is a clear distinction between an automobile and a motor vehicle. An automobile has been defined as: “The
word ‘automobile’ connotes a pleasure vehicle designed for the
transportation of persons on highways.”American
Mutual Liability Ins. Co., vs. Chaput,60 A.
2d 118, 120; 95 NH 200. While the distinction is made clear between the two as the courts have stated: “A motor
vehicle or automobile for hire is a motor vehicle, other than
an automobile stage, used for the transportation of persons
for which remuneration is received.”International
Motor Transit Co. vs. Seattle'251 P. 120. The term
‘motor vehicle’ is different and broader than the word ‘automobile’.”City
of Dayton vs. DeBrosse, 23 N.E. 2d 647, 650; 62 Ohio
App. 232. The distinction is made very clear in United State Code, Title 18, §31: “Motor
vehicle” means every description or other contrivance propelled
or drawn by mechanical power and used for commercial purposes
onthe highways in the transportation of passengers, or
passengers and property. “Used
for commercial purposes”means the carriage of persons
or property for any fare, fee, rate, charge or other considerations,
or directly or indirectly in connection with any business, or
other undertaking intended for profit. Clearly, an automobile is private property in use for private purposes, while a motor vehicle is a machine, which may be used upon the highways for trade, commerce, or hire. TRAVEL The term “travel” is a significant term and is defined as: “The
term ‘travel’ and ‘traveler’ are usually construed in their
broad and general sense...so as to include all those who rightfully
use the highways viatically (when being reimbursed for expenses)
and who have occasion to pass over them for the purpose
of business, convenience, or pleasure.” [Emphasis added]
25 Am. Jur. (1st) Highways, Sect. 427,
p.717. “Traveler--
One who passes from place to place, whether for pleasure, instruction,
business, or health.”Locket
vs. State, 47 Ala. 45; Bouvier’s Law Dictionary,
1914 ed., p. 3309. “Travel
-- To journey or to pass through or over; as a country district,
road, etc.To go from
one place to another, whether on foot, or horseback, or in any
conveyance as a train, an automobile, carriage, ship, or aircraft;
make a journey.” Century Dictionary,
p. 2034. Therefore, the term “travel” or “traveler” refers to one who uses a conveyance to go from one place to another and included all those who use the highways as a matter of Right. Notice that in all these definitions the phrase “for hire” never occurs.This term “travel” or “traveler” implies by definition one who uses the road as a means to move from one place to another. Therefore, one who uses the road in the ordinary course of life and business for the purpose of travel and transportation is a traveler. DRIVER The term “driver” in contradistinction to “traveler” is defined as: “Driver
-- One employed in conducting a coach, carriage, wagon, or other
vehicle...”Bouvier’s
Law Dictionary, 1914 ed., p. 940. Notice that this definition includes one who is “employed” in conducting a vehicle.It should be self-evident that this person could not be “traveling” on a journey, but is using the road as a place in the conduct of business. OPERATOR Today we assume that a “traveler” is a “driver,” and a “driver” is an “operator.”However, this is not the case. “It will
be observed from the language of the ordinance that a distinction
is to be drawn between the terms ‘operator’ and ‘driver’; the
‘operator’ of the service car being the person who is licensed
to have the car on the streets in the business of carrying passengers
for hire; while the 'driver' is the one who actually drives
the car. However, in the actual prosecution of business, it
was possible for the same person to be both ‘operator’ and ‘driver’.”Newbill
vs. Union Indemnity Co.,60 S.E. 2d 658. To further clarify the definition of an “operator” the court observed that this was a vehicle “for hire” and that it was in the business of carrying passengers. This definition would seem to describe a person who is using the road as a place of business, or in other words, a person engaged in the “privilege” of using the road for gain. This definition then is a further clarification of the distinction mentioned earlier and therefore: 1. Traveling upon and transporting one's property upon the public roads as a matter of Right meets the definition of a traveler. 2. Using the road as a place of business as a matter of privilege meets the definition of a driver or an operator or both. TRAFFIC Having defined the terms “automobile,” “motor vehicle,” “traveler,” “driver,” and “operator,” the next term to define is “traffic”: “...traffic
thereon is to some extent destructive, therefore, the prevention
of unnecessary duplication of auto transportation service will
lengthen the life of the highways or reduce the cost of maintenance,
the revenue derived by the state...will also tend toward the
public welfare by producing at the expense of those operating
for private gain, some small part of the cost of repairing the
wear Northern Pacific R.R. Co. vs.
Schoenfeldt,213
P. 26. Note: In the above, Justice Tolman expounded upon the key of raising revenue by taxing the “privilege” to use the public roads “at the expense of those operating for gain.” In this case, the word “traffic” is used in conjunction with the unnecessary Auto Transportation Service, or in other words, “vehicles for hire.”The word “traffic” is another word, which is to be strictly construed to the conducting of business. “Traffic--
Commerce, trade, sale or exchange of merchandise, bills, money,
or the like. The passing of goods and commodities from one person
to another for an equivalent in goods or money...” Bouvier’s
Law Dictionary, 1914 ed., p. 3307. Here again, notice that this definition refers to one “conducting business.”No mention is made of one who is traveling in his automobile.This definition is of one who is engaged in the passing of a commodity or goods in exchange for money, i.e. vehicles for hire. Furthermore, the word “traffic” and “travel” must have different meanings, which the counts recognize.The difference is recognized in Ex Parte Dickey,supra: “...In
addition to this, cabs, hackney coaches, omnibuses, taxicabs,
and hacks, when unnecessarily numerous, interfere with the ordinary
traffic and travel and obstruct them.” The court, by using both terms, signified its recognition of a distinction between the two.But, what was the distinction?We have already defined both terms, now to nail the matter down: “The
word ‘traffic’ is manifestly used here in secondary sense, and
has reference to the business of transportation rather than
to its primary meaning of interchange of commodities.” Allen
vs. City of Bellingham,163 P. 18 (1917). Here the Supreme Court of the State of Washington has defined the word “traffic” (in either its primary or secondary sense) in reference to business, and not to mere travel!So it is clear that the term “traffic” is business related and therefore, it is a “privilege.”The net result being that “traffic” is brought under the (police) power of the legislature.The term has no application to one who is not using the roads as source of income or a place of business. LICENSE It seems only proper to define the word license,” as the definition of this word will be extremely important in understanding the statutes as they are properly applied: “The
permission, by competent authority to do an act which without
permission, would be illegal, a trespass, or a tort.”People
vs. Henderson,2l8 N.W. 2d 2, 4. “Leave
to do a thing which licensor could prevent.”Western
Electric Co. vs. Pacent Reproducer Corp., 42F.
2d 116,118. In order for these two definitions to apply in this case, the state would have to prove the position that the exercise of a Constitutional Right to use the public roads in the ordinary course of life and business is illegal, a trespass, or a tort, which the state could then regulate or prevent. This position, however, would raise constitutional questions, as this position would be diametrically opposed to fundamental constitutional law. (See “Conversion of a Right to a Crime,” infra.) In the instant case, the proper definition of a “license” is: “a permit,
granted by an appropriate governmental body, generally for consideration,
to a person, firm, or corporation, to pursue some occupation
or to carry on some business which is subject to regulation
under the police power.” [emphasis added]
Rosenblatt vs. California State Board
of Pharmacy,158 P. 2d 199, 203.
This definition would fall more in line with the “privilege” of carrying on business on the streets. Most people tend to think that “licensing” is imposed by the state for the purpose of raising revenue, yet there may well be more subtle reasons contemplated; for when one seeks permission from someone to do something he invokes the jurisdiction of the “licensor” which, in this case, is the state. In essence, the licensee may well be seeking to be regulated by the “licensor.” “A license
fee is a charge made primarily for regulation, with the fee
to cover costs and expenses of supervision or regulation.”State
vs. Jackson,60 Wisc. 2d 700;
211 N.W. 2d 480, 487.
The fee is the price; the regulation or control of the licensee,
which is the real aim of the legislation. Are these licenses really used to fund legitimate government or are they nothing more than a subtle introduction of police power into every facet of our lives?Have our “enforcement agencies” been diverted from crime prevention, perhaps through no fault of their own, now busying themselves as they “check” our papers to see that all are properly endorsed by the state? At which Legislative Session will it be before we are forced to get a license for Lawnmowers, Generators, Tillers, and Air Conditioners or before Women are required to have a license for their “blender” or “mixer?”All have motors on them and the state can always use the revenue. At what point does the steady encroachment into our Liberty cease? POLICE POWER The confusion of the police power with the power of taxation usually arises in cases where the police power has affixed a penalty to a certain act or omission to act, or where it requires licenses to be obtained and a certain sum be paid for certain occupations. The power used in the instant case cannot however, be the power of taxation since an attempt to levy a tax upon a Right would be open to constitutional objection. (See “taxing power,” infra.) Each law relating to the legitimate use of police power must ask three questions: 1. Is there threatened danger? 2. Does a regulation involve a constitutional Right? 3. Is the regulation reasonable?
People vs. Smith,108
Am. St. Rep. 715; Bouvier’s
Law Dictionary, 1914 ed., under “Police Power.” When applying these three questions to the statute in question, some very important issues are clarified. 1. First, “is there a threatened danger” in the individual using his automobile on the public highways, in the ordinary course of life and business? The answer is No! There is nothing inherently dangerous in the use of an automobile when it is carefully managed. Their guidance, speed, and noise are subject to a quick and easy control, under a competent and considerate manager, it is as harmless on the road as a horse and buggy, possibly more so. It is the manner of managing the automobile and that alone, which threatens the safety of the public.The ability to stop quickly and to respond quickly to guidance would seem to make the automobile one of the least dangerous conveyances. (See Yale Law Journal, December, 1905.) “The
automobile is not inherently dangerous.”
Cohens vs. Meadow,
89 SE 876;
Blair vs. Broadwater,93 SE 632 (1917). To deprive all persons of the Right to use the road in the ordinary course of life and business, because one might in the future, become dangerous, would be a deprivation not only of the Right to travel, but also the Right to due process. (See “Due Process,” infra.) 2. Next, does the regulation involve a constitutional Right? This question has already been addressed and answered in this brief, and need not be reinforced other than to remind this Court that this Citizen does have the Right to travel upon the public highway by automobile in the ordinary course of life and business.It can therefore be concluded that this regulation does involve a constitutional Right. 3. The third question is the most important in this case. “Is this regulation reasonable?” The answer is No!It will be shown later in “Regulation,” infra, that this licensing statute is oppressive and could be effectively administered by less oppressive means. Although the Fourteenth Amendment does not interfere with the proper exercise of the police power in accordance with the general principle that the power must be exercised so as not to invade unreasonably the rights guaranteed by the United States Constitution, it is established beyond question that every state power, including the police power, is limited by the Fourteenth Amendment (and others) and by the inhibitions there imposed. Moreover, the ultimate test of the propriety of police power regulations must be found in the Fourteenth Amendment, since it operates to limit the field of the police power to the extent of preventing the enforcement of statutes in denial of Rights that the Amendment protects. (See Parks vs. State,64 N.E. 682 (1902)).
“With regard particularly to
the U.S. Constitution, it is elementary that a Right secured
or protected by that document cannot be overthrown or impaired
by any state police authority.”Connolly
vs. Union Sewer Pipe Co., 184 U. S. 540 (1902);Lafarier
vs. Grand Trunk R.y. Co., 24 A. 848 (1892);O’Neil
vs. Providence Amusement Co.,103
A. 887. “The
police power of the state must be exercised in subordination
to the provisions of the U.S. Constitution.” [emphasis added]Panhandle
Eastern Pipeline Co. vs. State Highway Commission,294
U. S. 613 (1935);Buchanan
vs. Warley,245 U.S. 60 (1917). “It is
well settled that the Constitutional Rights protected from invasion
by the police power, include Rights safeguarded both by express
and implied prohibitions in the Constitutions.”Tighe
vs. Osborne,131 A. 60 (1925). “As a
rule, fundamental limitations of regulations under the police
power are found in the spirit of the Constitutions, not in the
letter, although they are just as efficient as if expressed
in the clearest language.”Mehlos
vs. City of Milwaukee,146 N. W. 882 (1914). As it applies in the instant case, the language of the Fifth Amendment is clear: No person shall be deprived of Life, Liberty, or Property without due process of law. As has been demonstrated the courts at all levels have firmly established an absolute Right to travel. In the instant case, the state, by applying commercial statutes to all entities, natural and artificial persons alike, the legislature has deprived this free and natural person of the Right of Liberty, without cause and without due process of law. DUE PROCESS
“The essential elements of due
process of law are.. Notice and The Opportunity to defend.”Simon
vs. Craft,182 U. S. 427 (1901). Yet, not one individual has ever been given notice of the loss of his/her Right, before signing the license (contract).Nor was the Citizen given any opportunity to defend against the loss of his/her right to travel by automobile on the highways, in the ordinary course of life and business.This amounts to an arbitrary government deprivation on Liberty. “There
should be no arbitrary deprivation of Life or Liberty...”Barbier
vs. Connolly,113 U.S. 27, 31 (1885);Yick
Wo vs. Hopkins,1l8 U.S. 356 (1886).
and... “The
right to travel is part of the Liberty of which a citizen cannot
deprived without due process of law under the Fifth Amendment.This
Right was emerging as early as the Magna Carta.”Kent
vs. Dulles,357 U.S. 116 (1958). The focal point of this question of police power and due process must balance upon the point of making the public highways a safe place for the public to travel.If a man travels in a manner that creates actual damage, an action in law would be the appropriate remedy (civilly) for recovery of damages.The state could then also proceed against the individual to deprive him of his Right to use the public highways, for cause.This process would fulfill the due process requirements of the Fifth Amendment while at the same time insuring that Rights guaranteed by the U.S. Constitution and the state constitutions would be protected for all. But unless or until harm or damage (a crime) is committed, there is no cause for interference in the private affairs or actions of a Citizen. One of the most famous and perhaps the most quoted definitions of due process of law is that of Daniel Webster in his Dartmouth College Case, 4 Wheat 518 (1819), in which he declared that due process means “a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.” (See also State vs. Strasburg,110 P. 1020 (1910);Dennis vs. Moses,52P. 333.) Somewhat similar is the statement that is a rule as old as the law that “no one shall be personally bound (restricted) until he has had his day in court,” until he has been duly summoned to appear and has been afforded an opportunity to be heard.Judgment without such summons and opportunity lacks all the attributes of a judicial determination; it is judicial usurpation and it is oppressive and can never be upheld where it is unfairly administered. (12 Am. Jur. [1st] Const. Law, Sect. 573, p.269.) Note:This
sounds tike the process used to deprive one of the “privilege”
of operating a motor vehicle “for hire.”It
should be kept in mind, however, that we are discussing the
arbitrary deprivation of the Right to use the road that all
citizens have “in common.”
The futility of the state’s position can be most easily observed in the 1959 Washington Attorney General's opinion on a similar issue: “The
distinction between the Right of the Citizen to use the
public highways for private, rather than commercial purposes
is recognized...”
and... “Under
its power to regulate private uses of our highways, our legislature
has required that motor vehicle operators be licensed (I.C.
49-307).Undoubtedly,
the primary purpose of this requirement is to insure, as far
as possible, that all motor vehicle operators will be competent
and qualified, thereby reducing the potential hazard or risk
of harm, to which other users of the highways might otherwise
be subject.But once having
complied with this regulatory provision, by obtaining the required
license, a motorist enjoys the privilege of traveling freely
upon the highways...”Washington
A.G.O. 59-60 No. 88, p. 11. This alarming opinion appears to be saying that every person using an automobile as a matter of right, must give up the Right and convert the Right into a privilege. This is accomplished under the guise of regulation. This statement is indicative of the insensitivity, even the ignorance, of the government to the restrictions placed upon government by and through the several constitutions. That legal proposition may have been able to stand in 1959; however, as of 1966, in the United States Supreme Court decision in Miranda, clearly demonstrated thateven this weak defense of the state’s actions must fail.
“Where rights secured by the
Constitution are involved, there can be no rule making or legislation
which would abrogate them.” Miranda vs. Arizona,384
U.S. 436,491 (1966). Thus the legislature does not have the power to abrogate the Citizen’s Right to travel upon the public roads, by passing legislation forcing the citizen to waive his Right and convert that Right into a privilege.Furthermore, we have previously established that this “privilege” has been defined as applying only to those who are “conducting business in the streets” or “operating for-hire vehicles.” The legislature has attempted, by legislative fiat, to deprive the Citizen of his Right to use the roads in the ordinary course of life and business, without affording the Citizen the safeguard of “due process of law.”This has been accomplished under supposed powers of regulation. REGULATION “In addition
to the requirement that regulations governing the use of the
highways must not be violative of constitutional guarantees,
the prime essentials of such regulation are reasonableness,
impartiality, and definiteness or certainty.”25
Am.Jur. (1st) Highways, Sect. 260.
and... “Moreover,
a distinction must he observed between the regulation of an
activity which may be engaged in as a matter of right and one
carried on by government sufferance of permission.”Davis
vs. Massachusetts, 167 U.S. 43; Pachard vs. Banton,supra. One can say for certain that these regulations are impartial since they are being applied to all, even though they are clearly beyond the limits of the legislative power.However, we must consider whether such regulations are reasonable and non-violative of constitutional guarantees. First, let us consider the reasonableness of this statute requiring all persons to be licensed (presuming that we are applying this statute to all persons using the public roads).In determining the reasonableness of the statute we need only ask two questions: Does the statute accomplish its stated goal? The answer is No! The attempted explanation for this regulation “to insure the safety of the public by insuring, as much as possible, that all are competent and qualified.” However, one can keep his license without resetting, from the time he/she is first licensed until the day he/she dies, without regard to the competency of the Person, by merely renewing said license before it expires.It is therefore possible to completely skirt the goal of this attempted regulation, thus proving that this regulation does not accomplish its goal. If an analysis were compiled of all accidents between those individuals having license and those who do not, it would reveal that the highest percentage of accidents were had by those who had licenses. A license does not in and of its self guarantee the safety of the general public. Much like the License to Practice Law or Medicine assure that only competent Lawyers and Doctors ply their trade. A review of the annual Malpractice lawsuits is the only proof necessary to establish that it does not. Furthermore, by testing and licensing, the state gives the appearance of underwriting the competence of the licensees, and could therefore be held liable for failures, accidents, etc. caused by licensees as the state has certified through the issuance of the license that the individual is competent. Is the statute reasonable? The answer is No! This statute cannot be determined to be reasonable since it requires to the Citizen to give up his or her natural Right to travel unrestricted in order to accept the privilege.The purported goal of this statute could be met by much less oppressive regulations, i.e., competency tests and certificates of competency before using an automobile upon the public roads.(This is exactly the situation in the aviation sector.) But isn't this what we have now? The answer is No! The real purpose of this license is much more insidious.When one signs the license, he/she gives up his/her Constitutional Right to travel in order to accept and exercise a privilege under Contract.After signing the license, a quasi-contract, the Citizen has given the state his/her consent to be prosecuted for constructive crimes and quasi-criminal actions where there is no harm done and no damaged property. These prosecutions take place without affording the Citizen their constitutional Rights and guarantees such a the Right to a trial by jury of twelve persons and the Right to counsel, as well as the normal safeguards such as proof of intent, a corpus dilecti and a grand jury indictment.These unconstitutional prosecutions take place because the Citizen is exercising a privilege and has given his/her “implied consent” to legislative enactments designed to control interstate commerce, a regulated enterprise under the police power of the state. We must now conclude that the Citizen is forced to give up constitutional guarantees of “Right” in order to exercise his state “privilege” to travel upon the public highways in the ordinary course of life and business. SURRENDER OF RIGHTS A Citizen cannot be forced to give up his/her Rights in the name of regulation.
“...The
only limitations found restricting the right of the state to
condition the use of the public highways as a means of vehicular
transportation for compensation are (1) that the state
must not exact of those it permits to use the highways for hauling
for gain that they surrender any of their inherent U.S. Constitutional
Rights as a condition precedent to obtaining permission for
such use...” [emphasis added]Riley
vs. Lawson,143 So. 619 (1932);Stephenson
vs. Binford, supra. If one cannot be placed in a position of being forced to surrender Rights in order to exercise a privilege, how much more must this maxim of law, then, apply when one is simply exercising (putting into use) a Right? “To be
that statute which would deprive a Citizen of the rights of
person or property, without a regular trial, according to the
course and usage of the common law, would not be the law of
the land.”Hoke vs.
Henderson,15 NC 15.
and... “We find
it intolerable that one Constitutional Right should have to
be surrendered in order to assert another.”
Simons vs. United States,390
U.S. 389. Since the state requires that one give up Rights in order to exercise the privilege of driving, the regulation cannot stand under the police power, due process, or regulation, but must be exposed as a statute which is oppressive and one which has been misapplied to deprive the Citizen of Rights guaranteed by the United States Constitution and the state constitution. TAXING POWER
“Any claim that this statute
is a taxing statute would be immediately open to severe Constitutional
objections. If it could be said that the state had the power
to tax a Right, this would enable the state to destroy Rights
guaranteed by the constitution through the use of oppressive
taxation.The question
herein, is one of the state taxing the Right to travel by the
ordinary modes of the day, and whether this is a legislative
object of the state taxation.
The views advanced herein
are neither novel nor supported by authority. The Supreme Court
has repeatedly considered the question of taxing power of the
states. The Right of the state to impede or embarrass the Constitutional
operation of the U.S. Government or the Rights which the Citizen
holds under it, has been uniformly denied.”McCulloch
vs. Maryland,17 U. S. (4 Wheat) 316 (1819). The power to tax is the power to destroy, and if the state is given the power to destroy Rights through taxation, the framers of the Constitution wrote that document in vain. “...It
maybe said that a tax of one dollar for passing through the
state cannot sensibly affect any function of government or deprive
a Citizen of any valuable Right.But
if a state can tax...a passenger of one dollar, it can tax him
a thousand dollars.”Crandall
vs. Nevada,75 U. S. (6 Wall) 35, 46, (1867).
and... “If the
Right of passing through a state by a Citizen of the United
States is one guaranteed by the Constitution, it must be sacred
from state taxation.” Ibid., p.47. Therefore, the Right of travel must be kept sacred from all forms of state taxation and if this argument is used by the state as a defense of the enforcement of this statute, then this argument also must fail. CONVERSION OF A RIGHT TO A CRIME As previously demonstrated, the Citizen has the Right to travel and to transport his property upon the public highways in the ordinary course of life and business. However, if one exercises this Right to travel (without first giving up the Right and converting that Right into a privilege) the Citizen is by statute, guilty of a crime. This amounts to converting the exercise of a Constitutional Right into a crime. Recall the Miller vs. United States and Sherar vs. Cullen quotesfrom p.5, and, “The
state cannot diminish Rights of the people.”Hurtado
vs. California,110 U. S. 516 (1883).
and... “Where
rights secured by the Constitution are involved, there can be
no rule making or legislation which would abrogate them.”
Miranda,supra. Indeed, the very purpose for creating the state under the limitations of the constitution was to protect the rights of the people from intrusion, particularly by the forces of government. So we can see that any attempt by the legislature to make the act of using the public highways as a matter of Right into a crime, is void upon its face. Any person who claimshis Right to travel upon the highways, and so exercises that Right, cannot be tried for a crime of doing so.And yet this Sui juris stands before this court today to answer charges for the “crime” of exercising his Right to Liberty. As we have already shown, the term “drive” can only apply to those who are employed in the business of transportation for hire. It has been shown that freedom includes the Citizen’s Right to use the public highways in the ordinary course of life and business without license or regulation by the police powers of the state. title of nobility The United States Constitution at Article I, Section 10, Clause 1 prohibits the granting of a Title of Nobility. “No state shall grant a Title of Nobility.” Since the granting of a title of nobility is absolutely prohibited this court lacks subject matter jurisdiction to enforce a title of nobility and its attendant rules and regulations. The Utah Supreme Court has stated that the “Ability to drive a motor vehicle on a public roadway is not a fundamental right, but a revocable privilege.”City of Salina v. Wisden, 737 P. 2d 981 - The distinctive appellation, designation or title “driver” is a title of privilege, a title of “Noble Privilege” a “Title of Nobility”. In the words of Thomas L. Willmore, City Attorney for the City of Tremonton, Utah (case no. 94-0336, Tremonton City Justice Court)
“A Title of Nobility is defined
as to nominate to an order of persons to whom privileges are
granted... objection to a Title of Nobility arises from the
special privileges that attach to the title rather than to the
title itself. Words and Phrases, volume 8A, page 40. A Driver's
license is... a privilege which is granted ... by the State
(a municipal corporation).” In other words to obtain a drivers license is to be nominated to an order of persons known as drivers and be granted the special privileges that attach to the title. The United States Constitution at Article 1 Section 10 Prohibits the States from granting a “Title of Nobility” (i.e. a drivers license and its attendant rules and regulations). Pursuant to City of Salina v. Wisden, the drivers’ license and its rules and regulations are by legal definition a Title of Nobility.Article 1 Section 10 of the United States Constitution prohibits the States from granting “Title of Nobility”.The Court lacks subject matter jurisdiction to enforce upon the defendant “Title of Nobility”.What is prohibited to the States is forbidden to the Court to enforce.California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 908 (1972). Therefore, the Accused requests the Court to make a legal determination as to what is a title of nobility. The following case law will define a title of nobility for the court to use to make its determination. The following quotes give the answer: “NOBILITY.
An order of man, in several countries, to whom special privileges
are granted at the expense of the rest of the people.”l870:
Bouvier's Law Dictionary
and “To confer
a title of nobility, is to nominate to an order of persons to
whom privileges are granted at the expense of the rest of the
people. It is not necessarily hereditary, and the objection
to it arises more from the privileges supposed to be attached,
than to the otherwise empty title or order.”HORST
vs. MOSES (1872), 48 Ala. 129, 142; 46 Corpus
Juris 598, Nobility, note 4; (1874)
Bouvier's Law Dictionary,
Nobility “These
component... terms ‘privilege’, ‘honor’, and ‘emolument... are
collectively in the term 'title of nobility’.”HORST
vs. MOSES(1872), 48 Ala. 129, at 142
and Government granted: entitlement-privileges, such as a Drivers license and its privileges, are obviously Noble entitlements and franchises as pointed out by Richard B. Stewart, left-wing politician, Rhodes Scholar and Harvard Law Professor:
“The third great innovation
in American administrative law, which has largely occurred during
the past 20 years, extended the procedural controls and principles
of judicial review developed in the context of regulatory decision-making
to the operations of the welfare state, including programs of
government insurance and assistance, government employment decisions,
and the administration of government grants and contracts.Under
traditional private law principles, these benefits were “privileges”
and not “rights” because their withholding did not constitute
the commission of a tort or other natural law wrong against
a disappointed applicant or terminated recipient. With the growth
of the post-World War II welfare state, the distinction between
rights and privileges gradually eroded.Statutes
conveying these various benefits and advantages were held by
courts to create entitlements...”The
Limits of Administrative Law, in the Courts: Separation of Powers,
Final Report on the 1983 Chief Justice Earl Warren Conference
on Advocacy; page 77 Library of Congress #83-061923.
and The Constitution for the united States of America at Article I, Section 10, Clause 1, mandate:
“No State shall ... grant
any Title of Nobility” and “The establishment of... the prohibition of... TITLES OF NOBILITY... are perhaps greater securities to liberty and republicanism than any it [the U.S. Constitution] contains. “Nothing
need be said to illustrate the importance of the prohibition
of titles of nobility.This
may truly be denominated the cornerstone of republican government;
for so long as they are excluded there can never be serious
danger that the government will be any other than that of the
people.” [danger = nobility government, that of the police state]The
Federalist Papers: 484: S&6 -Alexander Hamilton A title of nobility is privilege of license and license of privilege otherwise such title of nobility ceases to exist without such privilege of license and license of privilege. A license to drive is a title of nobility, in that it is a special grant of privilege to use vehicles upon the public highways and roads. So says the Utah Supreme Court cited in Salina v. Wisden, supra. The State of (Name) (falsely acting as a King) grants “title of nobility” when it takes away a natural existing public or private right, forbidding a natural activity or occupation to all, then turns around and specially grants it back to a few, or many, the special privilege to engage in that activity or occupation and requiring the obtaining of a title of noble privilege (drivers license/license plate) to drive vehicles, and obeying attending nobility rules, as applied to the Accused is contrary to the Constitution for the united States of America mandate at Article I, Section 10, Clause 1: “No State shall ... grant any Title of Nobility.” Hence, (State Name) Revised Statutes, Title (Number) et. seq., all attendant nobility traffic rules, regulations and penalties, made pursuant to such, is to the contrary of the (res judicata) mandate of the Constitution for the United States of America (lest we be slaves) and is notwithstanding and void, by mere operation of law upon this record, as applied to the Accused. Hence the Count lacks subject matter jurisdiction because of the prohibition of titles of nobility, attendant rules, regulations and penalties. CONCLUSION It is the duty of the court to recognize the substance of things and not the mere form. “The
courts are not bound by mere form, nor are they to be misled
by mere pretenses. They are at liberty --indeed they are under
a solemn duty--to look at the substance of things, whenever
they enter upon the inquiry whether the legislature has transcended
the limits of its authority.If,
therefore, a statute purported to have been enacted to protect...the
public safety, has no real or substantial relation to those
objects or is a palpable invasion of Rights secured by the fundamental
law, it is the duty of the courts to so adjudge, and thereby
give effect to the Constitution.”Mulger
vs. Kansas,123 U.S.
623, 661.
and... “It is
the duty of the courts to be watchful for the Constitutional
rights of the citizen and against any stealthy encroachments
thereon.”Boyd vs.
United States,116 U.S. 616 (1889). No higher duty of this court exists than to recognize and stop the “stealthy encroachments”, which have been made upon the Citizen’s Right to travel and to use the roads to transport his property in the “ordinary course of life and business.”(Hadfleld, supra.) Further, the court must recognize that the Right to travel is part of the Liberty of which a Citizen cannot be deprived without specific cause and without the “due process of law” guaranteed in the Fifth Amendment. (Kent,supra.) The history of this “invasion” of the Citizen’s Right to use the public highways shows clearly that the legislature simply found a heretofore untapped source of revenue, became greedy and attempted to enforce a statute in an unconstitutional manner upon those free and natural individuals who have a Right to travel upon the highways.This was not attempted in an outright action, but in a slow, meticulous, calculated encroachment upon the Citizen’s Right to travel. This position most be accepted unless the prosecutor can show his authority for the position that the “use of the road in the ordinary course of life and business” is a privilege. To rule in any other manner, without clear authority for an adverse ruling, will infringe upon fundamental and basic concepts of constitutional law. This position, that a Right cannot be regulated under any guise, must be accepted without concern for the monetary loss of the state. “Disobedience
or evasion of a Constitutional Mandate cannot be tolerated,
even though such disobedience may, at least temporarily, promote
in some respects the best interests of the public.”Slote
vs. Examination,112
ALR 660.
and... “Economic
necessity cannot justify a disregard of Constitutional guarantee.”
Riley vs. Carter,79
ALR 1018; 16 Am. Jur. (2nd), Const. Law, Sect. 81.
and... “Constitutional
Rights cannot be denied simply because of hostility to their
assertions and exercise; vindication of conceded Constitutional
Rights cannot be made dependent upon any theory that it is less
expensive to deny them than to afford them.”
Watson vs. Memphis,
375 U.S. 526. Therefore, the Court’s decision in the instant case must be made without the issue of cost to the state being taken into consideration, as that issue is irrelevant. The state cannot lose money that it never had a right to demand from the “Sovereign People.” Finally, we come to the issue of “public policy.”It could be argued that the “licensing scheme” of all persons is a matter of “public policy.”However, if this argument is used, it too must fail, as: “No public
policy of a state can be allowed to override the positive guarantees
of the U.S. Constitution.”16
Am. Jur. (2nd), Const. Law, Sect. 70. So even “public policy” cannot abrogate this Citizen’s Right to travel and to use the public highways in the ordinary course of life and business. Therefore, it must be concluded that: “We have
repeatedly held that the legislature may regulate the use of
the highways for carrying on business for private gain and that
such regulation is a valid exercise of the police power.”Northern
Pacific R.R. Co.' supra.
and... “The
act in question is a valid regulation, and as such is binding
upon all who use the highway for the purpose of private gain.”
Ibid. Any other construction of this statute would render it unconstitutional as applied to this Citizen or any Citizen. The Accused therefore moves this court to Abate this Action or in the alternative to dismiss the charge against him, with prejudice. Pursuant to Federal Rule of Evidence 301 and attending state rules, the burden now rests with the Plaintiff to bring forward evidence in rebuttal of any facts stated herein by the defendant, with law and great specificity, not merely verbiage and personal convictions and beliefs of the agency’s biased legal counsel. Defendant believes that he has made a compelling case in support of his petition for Abatement with sound law and legal theory and requests that if the court rules adverse to that legal theory, that the Judge, submit a written opinion and conclusion of law, defining errors in the defendants legal reasoning and theory so that a clear and defined legal obligation of the defendant to comply with existing state statutes relative to his constitutional Right to travel is understood and established as a matter of law for the accused and the public at large.
Respectfully submitted,
_____________________ (Your name), Sui juris Address City, State Phone
DECLARATION
I declare under penalty of perjury, under the laws of the United States of America, that the foregoing is true and correct, to the best of my knowledge and belief.
Executed on this day of , in the year of our Lord, 2002.
_____________________ (Your Name),
NOTORIAL
COUNTY OF (NAME) STATE OF (NAME)
On thisday of, 2002, (Your Name) did personally appear before me, identified by (form of identification) and did take and Oath and stated that the above Motion to Abate is true and correct to the best of his knowledge and belief. Subscribed by me the below identified Notary Public in and for the State of (Name), on the date first above written.
__________________________________ (Name of Notary)Seal My Commission expires:
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above Memorandum of Law was mailed to the (State Name) State Attorney, by U.S. Mail on the day of (Month) , 2000 to the following address.
Name of Agent or Counsel: Address: City State of (Name)
_________________________ (Your Name), Defendant COMMENTS FROM THE PROFESSOR ON STATE REGULATION
Since no notice is given to
people applying for driver’s (or other) licenses that they have
a perfect right to use the roads without any permission, and
that they surrender valuable rights by taking on the regulation
system of licensure, the state has committed a massive constructive
fraud.This occurs when
any person is told that they must have a license in order to
use the public roads and highways. Much the same way we are
told that in order to work we must have a Social Security Card.
Both statements are not true.
The license, being a legal contract
under which the state is empowered with police powers is only
valid when the licensee takes on the burdens of the contract
and bargains away his or her rights knowingly, intentionally,
and voluntarily. All licenses are therefore Contracts, voiding
out your constitutional rights of due process and giving government
total control and taxing power over the activity they have licensed.
War Powers Act of 1933, explains
why government state and federal now license everything from
the kitchen sink to making rubber bands. They want total control
of us without the interference of the Constitution.
Few know that the driver's license
is a contract without which the police are powerless to regulate
the people’s actions or activities unless someone has damaged
another or their property while driving.
Few if any licensees intentionally
surrender valuable rights.They
are told that they must have the license.As
we have seen, this is not the case. No one in his or her right
mind voluntarily surrenders complete liberty and accepts in
its place a set of regulations.
Remember that early into our
History, no one needed a license, if you were not competent
in your work the market place avoided you, that is the way things
worked until the year 1933.
“The people never give up their
liberties but under some delusion.”Edmund
Burke, 1784.
In rem: Notice of default
Address City, State (Your Name) Petitioner,
Against
(Corporate Entity Name)PETITION FOR DEFAULT Address City, State, zip
Respondent.
_____________________________________/
NOTICE
OF DEFAULT
One, (John: Doe) petitions
for entry of default by the Notary against respondent (Example:
Dowe Cheatem and How, District Attorney). For respondents failure
to rebut petitioners “Notice of Abatement”, filed on (Date of
Filing) wherein petitioner demanded a rebuttal by Affidavit,
within 15 days of receipt of the “Notice of Abatement”. The
respondent has instituted no rebuttal by Affidavit therefore
the respondent has acquiesced and is in statutory default. This
Default Notice shall evidence that (Your Name) is correct in
his analysis of the law and other inquiries contained within
therein. By this Default Notice, the respondent is estopped
from any further action against the Natural Human Person of
the Petitioner and is without judicial standing, as no controversy
in law or material fact between the two parties exist.
___________________ Petitioner
DEFAULT
Default is entered in this action against the Respondent named in the foregoing petition for failure to serve or file any paper as required by law.
_____________________________ Notary Public Address City, State, zip ____________ Dated onSeal:
CERTIFICATE OF SERVICE
One, (Your Name) hereby certify that a true and correct copy of the Petition for default and Default was served by Registered Mail, by the United States Postal Service on (Date) to (Corporate Entity name) at (Address, City and State).
____________________________ (Your Name), Sui juris
Attn:
Clerk of Court
(Number) Judicial District(Date)
(Address)
City, State zipCertified
Mail #
RE: Case No. (Ticket Number)
Honorable Clerk of Court,
Please issue a Subpoena
Deuces Tecum, for (Name of Officer), as a witness and to produce
the following legal papers, documents, records under his control,
for the Trial (Date of Trial) as these documents are absolutely
essential for my defense.
1)
Any
legal papers, documents or records under his control, other
than documents obtained by fraud without full disclosure, that
create the presumption that (Your Name spelled i.e. John Don;
Jones is a resident of (Name of State) (i.e. STATE OF NEW YORK).
2)
Any
legal papers, documents or records under his control, other
than documents obtained by fraud without full disclosure, that
establish that (Your Name spelled i.e. John Don; Jones,) is
engaged in a revenue taxable activity and trafficking in commerce.
3)
Any
legal papers, documents or records under his control, other
than documents obtained by fraud without full disclosure that
establish this case as an Adversary Proceeding, pursuant to
Bankruptcy Rules Section VII, or is an in rem proceeding.
4)
Any
legal papers, documents or records under his control, signed
by me other than documents obtained by fraud without full disclosure,
that establish that (Your Name spelled i.e. John Don; Jones
is an artificial, fictitious person, juristic personality, or
entity, referred to by the state as (Your Name in all Caps.
i.e. JOHN DON JONES).
5)
Any
legal papers, documents or records under his control, other
than documents obtained by fraud without full disclosure, that
establish that (Your Name spelled i.e. John Don; Jones is a
vassal.
6)
Any
legal papers, documents or records under his control, other
than documents obtained by fraud without full disclosure, that
establish that (Your Name spelled i.e. John Don; Jones is Co-Bankrupt
debtor with the (State name in all Caps.)
7)
Any
legal papers, documents or records under his control, other
than documents obtained by fraud without full disclosure, that
establish this case and (Your Name spelled i.e. John Don; Jones)
as in rem and in personam has liability.
8)
Any
legal papers, documents or records under his control, other
than documents obtained by fraud without full disclosure, that
establish that (Your Name spelled i.e. John Don; Jones is a
co-obligator with the (Name of State and County) (i.e. STATE
OF NEW YORK and ALBANY COUNTY).
DISCOVERY / INTERROGATORIES TO (Name of Policeman and Prosecutor)
1)
Under what TRUST (S) are the CORPORATIONS chartered as the (NAME
OF STATE and COUNTY in all caps), operating under?
2)
Does the Constitution for the United States of America guarantee
a Republican Form of government?
3)
Where in the Constitution for the United States of America is
the authority been granted to the State or Federal Government
to incorporate and establish a democratic Corporation form of
government?
4)
Does this/these TRUST (S) issue permits and licenses?
5)
Does this TRUST (S) Articles place the REGISTERED OWNER or LICENSED
AGENT in a FIDUCIARY position? Or Both?
6)
If so, is the LICENSEE or PERMITTEE an employee under CONTRACT?
7)
What are the limitations imposed upon the licensed employee
as state in the CONTRACT issue under the authority of the TRUST
(S)?
8)
Is either Mr. (Name of Prosecutor) or (Name of Prosecutor in
charge of the case) a licensed agent under the Articles of the
TRUST (S)?
9)
If so, is this license for administrative enforcement of the
(Name of State) Revised Statutes of the state of (Name of State)?
10)
What
is the Public Community?
11)
Is
this contract a Commercial Contract?
12)
Is
(Name of Prosecutor and Prosecutor in charge) of the Municipal
Corporation known as the Prosecuting Attorney’s Office a Fiduciary
and/or Trustee under the Trust?
13)
Are
the aforementioned individuals under contract to the Municipal
corporation known as (NAME OF COUNTY IN CAPS).
14)
Are
the aforementioned individuals under contract within a Trust
chartered as a service corporation on behalf of a fictitious
entity called the State of (Name)?
15)
Is
the name of this fictitious entity called the (State of NAME)?
Yes___ No___
16)
What
other name does this entity function under? List all names of
fictitious entity and trust.
17)
Where
is this fictitious entity chartered?
18)
Is
this fictitious entity a municipal corporation?
19)
What
is the geographical location of this chartered fictitious entity?
20)
Is
said fictitious entity an alter ego of some other entity?
21)
Is
this fictitious entity a fictitious plaintiff?
22)
Can
a fiduciary bring a legal action on behalf of an alter ego?
23)
Can
an attorney at law litigate as an agent on behalf of a fictitious
plaintiff, or an alter ego?
24)
Are
the aforementioned individuals registered as an agent on behalf
of their alter ego principle with the Attorney General of the
United States?
25)
Is
the aforementioned individuals registered as an agent on behalf
of their alter ego principle with the Secretary of State of
the (Name of State)?
26)
Is
it contempt of court to litigate as an attorney at law for the
fictitious plaintiff?
27)
If
the aforementioned individuals are licensed under contract,
what agency is the contract program administered under?
28)
Is
the agency a trust for the State of (Name of State)?
29)
Who
is the beneficiary of above mentioned and referenced Trust(s)?
30)
If
so, what is the name of this trust?
31)
Who
are the trustee and co-trustee?
32)
What is the Prosecuting
Attorney’s Office?
33)
What
agency of the State of (Name) issued the contract, which is
serviced by the aforementioned office?
34)
Is
there a contractual relationship between (Name of County) and
the Prosecuting Attorney’s Office?
35)
What
are the contractual relationships between the municipal corporations
known as the State of (Name), the county of (Name), and the
corporation known as the United States?
36)
Were
the above-mentioned contractual relationships formed as a result
of any type of bankruptcy action?
37)
If so, where was this
action litigated, and by whom?
If additional time is required to produce the requested documents,
records, legal papers and interrogatories, please consider this
a request for postponement of the trial to a latter date. This
is to assure that all requested material and questions are fully
complied with and with sufficient lead-time that will allow
my assistance of counsel and me to inspect the material in preparation
of my defense.
Respectfully submitted,
____________________________
(Your Name) Sui juris
All of the above is designed
to abate a traffic ticket. The following is used in abating
a federal charge, when prosecuted by a federal indictment.
IN THE UNITED STATES DISTRICT COURT OF THE
(NUMBER) JUDICIAL CIRCUIT
FOR THE (REGION) DISTRICT OF
(STATE)
DEFENDANT NOTICE TO ABATE AND MEMORANDUM OF LAW IN SUPPORT
Defendant, (Your Name), files this Notice to abate plaintiff’s suit for lack of subject matter jurisdiction, as authorized by Federal Rule of Civil Procedure 12(b)(1). Defendant asks the Court to take judicial notice of the fact that he appears without counsel, is not schooled in the law and legal procedures, and is not licensed to practice law. Therefore his pleadings must be read and construed liberally. See Haines v. Kerner, 404 US at 520 (1980); Birl v. Estelle, 660 F.2d 592 (1981). Further defendant believes that this court has a responsibility and legal duty to protect any and all of the accused constitutional and statutory rights. See United States v. Lee, 106 US 196,220 [1882]
A.
INTRODUCTION
1. The UNITED STATES OF AMERICA is the plaintiff. (Your Name) is the defendant.
2. Plaintiff sued defendant for (state basis for suit). 3. The court lacks subject matter jurisdiction over the plaintiff’s suit; therefore, the suit should be abated.
B.
ARGUMENT
4.
This
courts jurisdiction is restricted to cases wherein there has
been no deprivation of constitutional rights of the parties.
The plaintiff has deprived the defendant of his due process
rights; the administrative agency has proceeded without statutory
and regulatory authority, and the administrative agency has
deprived the defendant of substantive due process rights; the
court is deprived of subject matter jurisdiction.
Due process requirements relating to grand jury arrays and
indictment
5.
Defendant now summarizes
indispensable or "substantive" elements of Federal criminal
prosecution, which constitutes applicable due process rights
in the instant matter, which were not afforded the defendant.
(a)
The
criminal prosecution process may commence if and only if there
is an affidavit of criminal complaint submitted under oath in
a probable cause hearing. (Rule 3, F.R.Crim.P.)
(b)
A committing
magistrate judge must issue a warrant or summons after finding
probable cause. (Rule 4, F.R.Crim.P.)
(c)
The
defendant may be arrested and "returned" by the appropriate
Federal authority. (Rule 4, F.R.Crim.P.)
(d)
The
defendant then has an initial appearance at which he is asked
to enter a plea, and bond, if any, is set. If the offense is
a felony offense, a United States Magistrate Judge may not ask
for or enter a plea. The defendant is entitled to a preliminary
hearing unless an indictment or information (against a corporation)
is returned prior to a preliminary hearing. In the event that
the defendant is "joined" by a grand jury under Rule 8 and has
not previously been arrested, the Federal criminal prosecution
process begins here, and the defendant is entitled to a preliminary
hearing. (Rule 5, F.R.Crim.P.)
(e)
If
the defendant exercises his right to a preliminary hearing,
he has the opportunity to cross-examine adverse witnesses and
he may introduce his own evidence, whether the evidence is via
a witness or is documentary evidence. (Rule 5.1, F.R.Crim.P.)
The preliminary examination may be bypassed only in the event
that the defendant waives the right, or indictment issues subsequent
to the initial appearance. In the Federal system, corporations
may be prosecuted by information.
(f)
The
defendant, or his counsel, has the right to challenge array
of the grand jury pool and voir dire individual grand jury candidates
prior to the grand jury being sworn in. (Rule 6(b), F.R.Crim.P.
and 28 U.S.C. § 1867).
(g)
In
the course of its investigation, based on an affidavit of complaint
and the finding of probable cause, a grand jury may by "presentment"
issue additional indictments and/or join additional defendants
in compliance with provisions of Rule 8, F.R.Crim.P.
(h)
The
grand jury must return indictments in open court, and the grand
jury foreman must file a letter or certificate of concurrence
with the clerk of the court. (Rule 6(f), F.R.Crim.P.)
(i)
A warrant
or summons may issue against additional parties joined to an
original cause of action subsequent to grand jury deliberation
and return of indictment in accordance with Rule 6. (Rule 9,
F.R.Crim.P.)
(j)
After
all previous conditions are met, as applicable, a defendant
may be arraigned and called on to plead. (Rules 10 and 11, F.R.Crim.P.)
C.
Conclusion
6. Defendant now makes this timely notice to abate under authority of 28 U.S.C. § 1867(e). 7. Pursuant to Rule 6(b) of the Federal Rules of Criminal Procedure, defendant must be notified of a grand jury investigation. In the instant matter defendant was not notified of any grand jury being seated in which he was the target of the investigation. Therefore, defendant did not have the opportunity to challenge the jury pool and individual jurors seated on the grand jury as required by FRCP 6(b)(1) and (2); the court lacks subject matter jurisdiction and should abate the plaintiff’s claims.
_____________________________ (Your Name), Defendant
DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF NOTICE TO ABATE
FOR LACK OF SUBJECT MATTER JURISDICTION
"Warrants of arrest for violations of internal revenue laws
may be issued by United States magistrates upon the complaint
of a United States attorney, assistant United States attorney,
collector, or deputy collector of internal revenue or revenue
agent, or private citizen; but no such warrant of arrest shall
be issued upon the complaint of a private citizen unless first
approved in writing by a United States attorney."
"Rule 3. The Complaint
"The Complaint is a written
statement of the essential facts constituting the offense charged.
It shall be made upon oath before a magistrate judge."
Rules 3 through 9 of the Federal
Rules of Criminal Procedure preserve the proper procedural sequence
of the Fourth, Fifth and Sixth Amendments. If any portion of
any of these rules, i.e., of any of the three amendments, is
defective, Courts of the United States lose subject matter jurisdiction.
"Upon the request of the attorney for the government the court
shall issue a warrant for each defendant named in an information
supported by a showing of probable cause under oath as is required
by Rule 4(a), or in an indictment … More than one warrant or
summons may issue for the same defendant … When a defendant
is arrested with a warrant or given a summons appears initially
before a magistrate judge, the magistrate judge shall proceed
in accordance with the applicable divisions of Rule 5."
Rule 6(b)(1) to demonstrates
this:
"(1) Challenges. The attorney for the government or a defendant
who has been held to answer in the district court may challenge
the array of jurors on the ground that the grand jury was not
selected, drawn or summoned in accordance with law, and may
challenge an individual juror on the ground that the juror is
not legally qualified. Challenges shall be made before the administration
of the oath to the jurors and shall be tried by the court."
"(2)
Motion to Dismiss. A motion to dismiss the indictment may be
based on objections to array or on the lack of legal qualification
of an individual juror, if not previously determined upon challenge.
It shall be made in the manner prescribed in 28 USC § 1867(e)
and shall be granted under the conditions prescribed in that
statute. An indictment shall not be dismissed on the ground
that one or more members of the grand jury were not legally
qualified if it appears from the record kept pursuant to subdivision
(c) of this rule that 12 or more jurors, after deducting the
number not legally qualified, concurred in finding the indictment."
"(a) In criminal cases, before the voir dire examination begins,
or within seven days after the defendant discovered or could
have discovered, by the exercise of diligence, the grounds therefore,
whichever is earlier, the defendant may move to dismiss the
indictment or stay the proceedings against him on the ground
of substantial failure to comply with the provisions of this
title in selecting the grand or petit jury."
Now consider Rule 6(f), F.R.
Crim. P.
"(f) Finding and Return of Indictment. An indictment may be
found only upon concurrence of 12 or more jurors. The indictment
shall be returned by the grand jury to a federal magistrate
judge in open court. If a complaint or information is pending
against the defendant and 12 jurors do not concur in finding
an indictment, the foreperson shall so report to a federal magistrate
judge in writing forthwith."
"…are of the same or similar character or are based on the same
act or transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan."
(Rule 8(a)) Rule 8(b) specifies criteria for naming additional
defendants.
Here is where defendants’ reservation of rights in Rule 9(a) comes in:
"When a defendant arrested with a warrant or given a summons
appears initially before a magistrate judge, the magistrate
judge shall proceed in accordance with the applicable subdivisions
of Rule 5."
We will first consider Rule
5(b) and the first portion of Rule 5(c):
"(b) Misdemeanors and Other
Petty Offenses. If the charge against the defendant is a misdemeanor
or other petty offense triable by a United States magistrate
judge under 18 USC § 3401, the magistrate judge shall proceed
in accordance with Rule 58.
"(c) Offenses not triable by
the United States Magistrate Judge. If the charge against the
defendant is not triable by the United States magistrate judge,
the defendant shall not be called upon to plead…
Rule 5(c), second paragraph, also specifies that;
"A defendant is entitled
to a preliminary examination, unless waived, when charged with
any offense, other than a petty offense, which is to be tried
by a judge of the district court."
"(a) Probable Cause Finding. If from the evidence it appears
that there is probable cause to believe that an offense has
been committed and that the defendant committed it, the federal
magistrate judge shall forthwith hold the defendant to answer
in district court. The finding of probable cause may be based
upon hearsay evidence in whole or in part. The defendant may
cross-examine adverse witnesses and may introduce evidence…"
Now we go back to Rule 5(c) second paragraph:
"A defendant is entitled to a preliminary examination, unless
waived, when charged with any offense, other than a petty offense,
which is to be tried by a judge of the district court. If the
defendant waives preliminary examination, the magistrate judge
shall forthwith hold the defendant to answer in the district
court. If the defendant does not waive the preliminary examination,
the magistrate judge shall schedule a preliminary examination.
Such examination shall be held within a reasonable time but
in any event not later than 10 days following the initial appearance
if the defendant is in custody and no later than 20 days if
the defendant is not in custody, provided, however, that the
preliminary examination shall not be held if the defendant is
indicted or if an information against the defendant is filed
in district court before the date set for the preliminary examination…"
·
Mistake,
inadvertence, surprise, or excusable neglect;
·
Newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b);
·
Fraud
whether heretofore denominated intrinsic or extrinsic, misrepresentation,
or other misconduct of an adverse party;
·
The
judgment is void;
·
The
judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should
have prospective application; or
·
Any
other reason justifying relief from the operation of the judgment.
The rule then specifies;
"The motion that shall
be made within a reasonable time, and for reasons (1), (2),
and (3) not more than one year after the judgment, order, or
proceeding was entered or taken. A motion under this subdivision
(b) does not affect the finality of a judgment or suspend its
operation. This rule does not limit the power of the court to
entertain an independent action or relieve a party from a judgment,
order, or proceeding, or to grant relief to a defendant not
actually personally notified as provided in Title 28, USC §
1655 or to set aside a judgment, for fraud upon the court. Writs
of coram nobis, bills in the nature of a bill of review, are
abolished, and the procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules or
by an independent action."
Respectfully Submitted,
_______________________________ (Your Name), Defendant
CERTIFICATE OF SERVICE
I
, sent via the U.S. Postal
service, by 1st class mail, the foregoing Notice of Abatement
and Memorandum of Law in Support, to (Name), Assistant United
States Attorney for the Plaintiff United States, at (Address,
City, State, zip), on the
day of (Month)
2002.
_________________________________ (Your
Name)
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