Jurisdiction

[gregtu]

"Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action." Melo v. US, 505 F2d 1026. "There is no discretion to ignore that lack of jurisdiction." Joyce v. US, 474 F2d 215. "The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F2d 416. "Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F2d 188; Chicago v. New York, 37 F Supp 150. "A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullity and its judgment therein without effect either on person or property." Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732. "Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio." In Re Application of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846. "Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term." Dillon v. Dillon, 187 P 27. "A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance." Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409. "A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934, 937. "Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris." Merritt v. Hunter, C.A. Kansas 170 F2d 739. "the fact that the petitioner was released on a promise to appear before a magistrate for an arraignment, that fact is circumstance to be considered in determining whether in first instance there was a probable cause for the arrest." Monroe v. Papa, DC, Ill. 1963, 221 F Supp 685.

And, you may find this interesting as well:

"An action by Department of Motor Vehicles, whether directly or through a court sitting administratively as the hearing officer, must be clearly defined in the statute before it has subject matter jurisdiction, without such jurisdiction of the licensee, all acts of the agency, by its employees, agents, hearing officers, are null and void." Doolan v. Carr, 125 US 618; City v Pearson, 181 Cal. 640. "Agency, or party sitting for the agency, (which would be the magistrate of a municipal court) has no authority to enforce as to any licensee unless he is acting for compensation. Such an act is highly penal in nature, and should not be construed to include anything which is not embraced within its terms. (Where) there is no charge within a complaint that the accused was employed for compensation to do the act complained of, or that the act constituted part of a contract." Schomig v. Kaiser, 189 Cal 596. "When acting to enforce a statute and its subsequent amendments to the present date, the judge of the municipal court is acting as an administrative officer and not in a judicial capacity; courts in administering or enforcing statutes do not act judicially, but merely ministerially". Thompson v. Smith, 154 SE 583. "A judge ceases to sit as a judicial officer because the governing principle of administrative law provides that courts are prohibited from substituting their evidence, testimony, record, arguments, and rationale for that of the agency. Additionally, courts are prohibited from substituting their judgment for that of the agency. Courts in administrative issues are prohibited from even listening to or hearing arguments, presentation, or rational." ASIS v. US, 568 F2d 284. "Ministerial officers are incompetent to receive grants of judicial power from the legislature, their acts in attempting to exercise such powers are necessarily nullities." Burns v. Sup. Ct., SF, 140 Cal. 1. "The elementary doctrine that the constitutionality of a legislative act is open to attack only by persons whose rights are affected thereby, applies to statute relating to administrative agencies, the validity of which may not be called into question in the absence of a showing of substantial harm, actual or impending, to a legally protected interest directly resulting from the enforcement of the statute." Board of Trade v. Olson, 262 US 1; 29 ALR 2d 1051.

An excellent site is: http://www.constitution.org
Click on: "Jurisdiction and Due Process"
Then: "Federal Jurisdiction"

Lots of good info and referral sites here also.

hermit

[EdgarW]

From an Order of a U.S. District Judge in the Middle District of Georgia dated February 7, 2005, regarding jurisdiction in a pro se case:

This Court conducts an initial review of each case. The initial review ensures that each case has a proper jurisdictional basis. Proper jurisdiction is important because federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am. 511 U.S. 375, 377 (1994); Save the Bay, Inc. v. United States Army, 639 F.2d 110, 1102 (5th Cir. 1981).Fn.1 Specifically, they possess only that power authorized by the United States Constitution and by federal statutes. Kokkonen, 511 U.S. at 377; Save the Bay, 639 F.2d at 1102. Therefore, a federal court should constantly examine a case’s jurisdictional basis -- even on its own initiative if necessary. Save the Bay, Inc. v. United States Army, 639 F.2d at 1102 (citing Fed. R. Civ. P. 12(h)(3); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908)).

Fn.1 The United States Court of Appeals for the Eleventh Circuit has adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, as its governing body of precedent. Conner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981). This body of precedent is binding unless and until overruled by the Eleventh Circuit en banc. Id.

(Emphasis mine.)

Best regards,

EdgarW

[Ice]

The question of jurisdiction can be raised at any time, and since neither consent nor waiver can give jurisdiction, the court will not proceed where it appears from the record that it has no authority.

Coffee v. Peterbilt of Nashville, Inc. (Tenn.) 705 SW2d 656.

Now, can anyone explain how "crossing the bar" "gives" jurisdiction to the court in light of the fact that jurisdiction cannot be given by consent or waiver?

Taking this fact into consideration... what are some of the ways that you can demonstrate that a court (such as traffic court) actually lacks jurisdiction? And how might you make use of an evidence file in order to demonstrate a courts lack of jurisdiction?

Just thought I'd give ya'll something to think on.

Ice

[The Man]

An important parenthetical to any jurisdictional discussion is what kind of jurisdictional argument or issue the parties are raising. There is, after all, more than one breed of cat, as they say. There is jurisdiction over the person, jurisdiction over the subject matter of the dispute, and jurisdiction over physical property. People also frequently mistake venue arguments and issues with jurisdictional ones. For example, your average state court has subject matter jurisdiction over divorces. Any party can always waive personal jurisdiction by answering the complaint, moving for dismissal, that sort of thing. But some states say that venue (which court within the state court system) is only proper if one of the parties lives in the county that the divorce proceeding is filed in. Either that or, if there are children involved, some state statutes will say the case must be filed in the county where the children live. The more general language you may see is that venue is only proper in the county where the cause of action or some part thereof arose.

In general, subject matter jurisdiction cannot be waived and may even be brought up by appellate courts on their own or sua sponte. Personal jurisdiction can be waived and sovereign immunity (personal jurisdiction over the state as a party) can be waived or abrogated by a clear act of congress under the fourteenth amendment only. Jurisdiction over property and the like is a more squishy subject that is fluid and is frequently analyzed not so much legalistically but practically or pragmatically.

But hey, that's just what I think.

[Ice]

The Man,

Long time no see... how ya doin'? Still trying to keep the little man down?

It is also true that the court cannot proceed where it lacks subject matter jurisdiction and lacking subject matter jurisdiction the court has no discretion because the two go hand in hand.

I consider it the duty of the Appellate court to consider the jurisdicitonal issues sua sponte before it proceeds. Remember, any judge acting outside of jurisdiction is not immune and cannot claim immunity. But the subject of judicial immunity is another topic for another time.

But tell me, what are your thoughts in regards to "personal" jurisdiction. On what grounds can the court claim jurisdiction over a person and IF those grounds are unfounded can the court proceed?

Come on now... don't be shy... lots of members would like to hear your opinion on some of these issues. This is the purpose of this forum... a great EDUCATIONAL TOOL.

Ice

[easynbwc1]

Study Trust Law you will find out some things
re their authority. Also, Study affdavits to
rebut presumption to the beginning of tr.
beginning.

[Ice]

easy,

Let's deal with some facts.

Please explain how the court has personal jurisdiction in regards a sui juris man based upon trust law.

The question I posed above was straight forward and asked for the benefit of the members. I am not looking for a "study this or that" response. A straight question deserves a straight answer. And please, none of that "strawman" stuff. The strawman dies when you kill him... so let's speak only of the sui juris man.

Ice

p.s. my signature will take you to my blog.

[The Man]

Again, this is all just my take on things.

As long as we assume that the Court has subject matter jurisdiction, then personal jurisdiction arguments must be made early and often. As I noted above, it can be painfully easy to waive your arguments as to the jurisdiction of the court over you. I have seen folks opine that the constitution is a contract that they did not assent to. I have also seen arguments that take issue with having someone's name in all capitols or trust theories. To date, I have not seen these arguments carry the day either in person or reflected in the decision of appellate courts.

As I have stated in the past, Court's routinely ignore those arguments. Why? Number of reason's I have observed over the years. Frequently those arguments are also interspersed with personal attacks against the judiciary, the other party, or the government in general. There may also be vast sweeping, uncited generalizations as well. I guess that's a way of saying that what legal merit those arguments may actually have is diluted by opinion and fomentation. You need to remember when addressing the Court, for better or for worse, if you write crazy, sound crazy, or act crazy, the Court will assume you are crazy. Also, you should not make uncited legal arguments or stretch the meaning of what you cite. I frequently see people take citations out of context or from cases that have been overruled. That doesn't help.

But I digress. As with any legal argument, the best you can do is clearly make your record when in court and in writing. Make sure your legal briefs are concise and to the point so what you are saying is not lost or overlooked. An average complaint that I see in state or federal court is 8 pages or so. 50 pages is probably too many. Same thing with most legal briefings.

To most directly answer your question, trust theories to date have not worked and probably won't be accepted anytime soon. Most jurisdictional arguments stem from the nature of the other parties filings not from as to date untested legal arguments regarding citizenship, international bankruptcy, or maritime law.

Again, that's just what I think.

[David Merrill]

Consider the jurisdiction of any court three-pronged.

1) subject matter jurisdiction
2) in personam jurisdiction
3) territorial jurisdiction.

Charles Weisman wrote a wonderful treatise The Authority of Law and it includes a motion to defeat subject matter jurisdiction. Imagine the question carefully, "Was there any law broken?" That is the primary question about subject matter jurisdiction. If a statute has no enacting clause according to Article V, Section 18 (Colorado constitution) http://www.sos.state.co.us/pubs/elec...2001_const.pdf ; then there is no law being cited on the citation or ticket. No subject matter jurisdiction because there is no law being broken.

There is an Omnibus enacting clause that is in full force and effect with the General Assembly due to "necessity" (War and Emergency Powers). This is covered by a Safety Clause* on all bills proposing criminal law. The safety clause depends on article necessity - the silent imposition of the Trading with the Enemy Act of 1917 (1933). The point is that if you are a citizen of the United States that grants the martial rule court jurisdiction, you being the enemy accused of hoarding (your own) gold in 1933.

You must properly challenge in personam jurisdiction for challenging the other two prongs to be effective. In personam jurisdiction is the question, "Is the character of the party under the jurisdiction of this court?"

For territorial jurisdiction you must examine the history of the State where you live. Colorado is rather unique. The land became a Territory on February 28, 1861 and Congress adjourned sine die for 90 days on March 28, 1861. Not quite 30 days required by law for the Act to cure properly.

Interestingly I found the story in a Western Romance Novel, I forget the name. The Congressional Records tell the timeline but the real story is allegedly so. President Buchannan had high hopes of being the President to prosecute the War Between the States. [Arrangements were made with High Freemason Weld (largest county still) for him to become the first Secretary of the Territory. Secretary Weld arranged for the Great Seal of Authority for the State of Colorado to have the Eye of God. Lobby of my clerk http://ecclesia.org/forum/images/suitors/DavidStar.jpg ] No surprise, he ran for reelection against Abraham Lincoln and lost. What he was doing however, with Colorado Territory, ran over into President Lincoln's administration. That was in a nutshell to claim the gold findings, without a proper territorial claim cured as a war chest (Auraria and Central City '59ers) for the prosecution of the War.

So the claims made on the approbation I signed to the Declaration of Independence are true:

http://friends-n-family-research.inf...probation1.jpg
http://friends-n-family-research.inf...probation2.jpg
http://friends-n-family-research.inf...probation3.jpg

They stand true claim suae potestate esse to the land upon which I walk.

Once I was getting true and correct copies from my clerk. The deputies said the document no longer existed. I suggested they call the county sheriff for an investigation, if they were having documents stolen or whatever. They shuffled around while I remembered to feed the meter. When I got back they had put the approbation on the counter for me to grab for free. Nobody at the counter and when I asked, they said sorry for the inconvenience, no charge. I think they thought I was going across the street to report the theft of documentation to the sheriff.

Anyway enjoy. If you understand interrelationships of character and identity, then you can easily challenge and defeat de facto jurisdiction.

But always remember, that if you do not know your true name:

From Manual for Courts-Martial United States 1984 and in the current edition http://www.jag.navy.mil/documents/mcm2000.pdf

Rule 201. Jurisdiction in general

(b) Requisites of court-martial jurisdiction. A court-martial always has jurisdiction to determine whether it has jurisdiction. Otherwise for a court-martial...

*

SECTION 12. Safety clause. The general assembly hereby finds,
determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, and safety.