Counter complaint against action, how would you proceed?

[jeagas68]

A scenario for discussion among you traffic gurus;

When you get summoned to a county court in NC for operating a motor vehicle without a license, then when you arrive you have a administrative defaulted claim that in a line on this writ there was NO private agreement(aka DL) to accept benefits of regulation on a public way from the Incorporated State of NC and you site the following statutes:

NCGS § 1‑45. No title by possession of public ways.

No person or corporation shall ever acquire any exclusive right to any part of a public road, street, lane, alley, square or public way of any kind by reason of any occupancy thereof or by encroaching upon or obstructing the same in any way, and in all actions, whether civil or criminal, against any person or corporation on account of an encroachment upon or obstruction or occupancy of any public way it shall not be competent for a court to hold that such action is barred by any statute of limitations. (1891, c. 224; Rev., s. 389; C.S., s. 435.)

NCGS § 1‑44. No title by possession of right‑of‑way.

No railroad, plank road, turnpike or canal company may be barred of, or presumed to have conveyed, any real estate, right‑of‑way, easement, leasehold, or other interest in the soil which has been condemned, or otherwise obtained for its use, as a right‑of‑way, depot, station house or place of landing, by any statute of limitation or by occupation of the same by any person whatever. (R.C., c. 65, s. 23; C.C.P., s. 29; Code, s. 150; Rev., s. 388; C.S., s. 434.)

Therefore no criminal act could have possibly occurred since there was no joinder of material fact (SMJ).
[[ See Attachment ]]

So now that you are there having taken time away from family or work so that you can feed that family, we should probably be compensated for labor, now being that you gave notice to the officer for the cost of your labor you bring in a counter-complaint specifying damages for your time on the side of the road and in court. {I know this is a state matter, but pertaining to the Fed criminal code the taking of your labor without consent is criminal .. 18 USC 1589 and since we have found that most STATES are Federal Corporations, wouldn't this have a presidence in court?}

What do you think the judge might have to say about all this?

'Silver Dollar

[David Merrill]

The end of your post is fatal. If there is no agreement and that is your stance; do not give a flip what the judge says. Refuse for Cause timely and document it - most likely with the US district court.

Otherwise, when you show up to find out what the judge thinks, you will cure jurisdiction by appearance and be in an agreement. Which may be the way to go.



Regards,

David Merrill.

[Soldier of Truth]

Another procedure, that I might try if I wasn't familiar with R4C, would be to challenge jurisdiction of the courts under "primary jurisdiction doctrine." And I would do it by "special appearance." Not physical. A "special" appearance on paper is still an appearance. And my conformed copy of the face page that I would have mailed back to me in the pre-paid self-addressed stamped envelop that I included with my filing would be proof of my appearance.

The motor vehicle agency is an administrative agency, and the courts are deprived of jurisdiction until an administrative decision has been made. The court's are only allowed to "review" administrative actions. Only if the agency has decided erroneously as a matter of law are they able to review de novo.

The STATE has failed to exhaust its administrative remedies. No determination would have been made by the agency charged by the legislature with the duty of enforcement and administration. The citation would assume facts not in evidence. The material facts and evidence that could only come from the agency delegated authority over the motor vehicle regulatory regs.

Of course this is California, but I believe similar provisions could be found in "sister" states.


"The director shall administer and enforce the provisions of this code relating to the department. Veh. Code § 1650."

“The exhaustion doctrine is principally ground on concerns favoring administrative autonomy (i.e. courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary). [Citations omitted]” Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377, 391 (See California Administrative Mandamus (Cont.Ed.Bar 3d ed. 2004) § 3.32)

“Generally, unless all available administrative remedies are exhausted and a final decision is rendered, a court will not act.” Palmer v. Regents of Univ. Of Cal. (2003) 107 Cal.App.4th 899; Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 469

“[i]t is not a matter of judicial discretion, the exhaustion doctrine is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts.” Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293. (See California Administrative Mandamus (Cont.Ed.Bar 3d ed. 2004) § 3.11, ¶3)

I might even do a state Public Records Act request (state equivalent to the federal Freedom of Information Act), and request copies of the motor vehicle agency's decisions, among other things, regarding the citation, if there had been a decision as to if the manner of use of my auto (solely for personal, family, or household purposes) qualified as "operating a motor vehicle," and use the response (or lack thereof) as evidence to deprive the court of jurisdiction.


Of course, this may be one method that I may use.

[jeagas68]

Originally Posted by David Merrill

The end of your post is fatal. If there is no agreement and that is your stance; do not give a flip what the judge says. Refuse for Cause timely and document it - most likely with the US district court.
Otherwise, when you show up to find out what the judge thinks, you will cure jurisdiction by appearance and be in an agreement. Which may be the way to go.

What about coming in under Special appearance and not General .. aka agent or administrator of the account in the matter?

[jeagas68]

Originally Posted by Soldier of Truth

The motor vehicle agency is an administrative agency, and the courts are deprived of jurisdiction until an administrative decision has been made. The court's are only allowed to "review" administrative actions. Only if the agency has decided erroneously as a matter of law are they able to review de novo.

The STATE has failed to exhaust its administrative remedies. No determination would have been made by the agency charged by the legislature with the duty of enforcement and administration. The citation would assume facts not in evidence. The material facts and evidence that could only come from the agency delegated authority over the motor vehicle regulatory regs.

Of course this is California, but I believe similar provisions could be found in "sister" states.

In North Carolina they consider the court hearing before trial the administrative action, a normal administrative hearing is usually denied.

I did get a ticket thrown out one time when they denied me a trial by jury, judge tried to say the local state constitution stated that denied for infractions, but I quickly pointed out to them it said for Mideameanors only not infractions, Told him no jury, no venue.

[David Merrill]

Originally Posted by jeagas68

What about coming in under Special appearance and not General .. aka agent or administrator of the account in the matter?

There may be something to that. The Libel of Review - formally how to establish an evidence repository for your Refusals for Cause - is done by Restricted Appearance.

Rule E(8) Restricted Appearance.An appearance to defend against an admiralty and maritime claim with respect to which there has issued process in rem, or process of attachment and garnishment, may be expressly restricted to the defense of such claim, and in that event is not an appearance for the purposes of any other claim with respect to which such process is not available or has not been served.

The jurisdiction is diversity of citizenship between you, a man on the land and the artificial corporation of government - what you used to be when you thought your name was the legal or full name you were conditioned to proceed in - what you thought was your name. Ergo Removal Jurisdiction.

http://en.wikipedia.org/wiki/Removal_jurisdiction

Therefore you would not even be dealing with the county (state) court.




Regards

David Merrill.

[Soldier of Truth]

Originally Posted by jeagas68

In North Carolina they consider the court hearing before trial the administrative action, a normal administrative hearing is usually denied.

I did get a ticket thrown out one time when they denied me a trial by jury, judge tried to say the local state constitution stated that denied for infractions, but I quickly pointed out to them it said for Mideameanors only not infractions, Told him no jury, no venue.

I would look at the "powers and duties" of the administrative agencies. I find it hard to believe that the court first acts as an administrative agency on traffic matters (not that I don't believe you--I just suspect this was told to you by someone trying to pull a fast one).

Reason being, it would be a gross violation of the separation of powers doctrine. The motor vehicle agency is a part of the Executive Branch and the court, of course, is a part of the Judicial Branch.

Additionally, it sounds as if N.C. has similar traffic schemes set up, having infractions that doesn't allow trial by jury. That (if criminal) would be prohibited by the constitution. As such, it necessarily militates against a factual assertion of infractions being "criminal." That being the case I would, for clarification, see what the "powers and duties" are of the states peace officers." As I suspect, as here, they are restricted to enforcement of "criminal" activity. If you are not entitled to trial by jury, the waiver of which at your discretion, then it would be a legal/constitutional impossibility that infractions could be classified as crimes.

Of course "real" time is different. Especially with a monetary factor being the key issue. However, if I weren't concerned with holding firm on receiving answers to questions posed around those issues, i.e. "how does an arraignment proceed against noncriminal conduct?" I think it would make for an interesting and enlightening record. If those questions can't be answered, then how are you able to know the nature of the proceeding that you are being required to answer for?

Also, getting back to "powers and duties," we have a statute that only gives authority for conviction on public offenses if upon verdict of a jury, the waiver of trial by jury, or an admission of guilt. There may be a similar statute in N.C. And if the stop was made by a "city" as opposed to "state" officer, that would raise additional questions as to if the officer is enforcing state law or city "ordinance." In order to enforce city ordinance, the city must "own" the city. If enforced by state officers, we also have a statute within the Vehicle Code regs. that "governs" all stops without a warrant for alleged motor vehicle violations (which goes without saying also governs the city officers).

I always challenge the stop if I decide to make a physical appearance, and if it ever gets to that point, with the clear understanding that all seizures require "warrants" and without a warrant, there has to be probable cause to believe that I was on my way to committing a crime, or I just committed a crime. And the burden of proof is on the prosecutor to establish probable cause for the stop.

Here in California, a prosecutor almost never shows up for traffic infractions, that poses the question as to "who's prosecuting?" The cop is a "witness" for the state, and doesn't possess a bar card. So if there's no prosecutor, how can probable cause be established, who's entering evidence for "the people?" The magic words "I'd like to enter into evidence" or the "request to" do so isn't being said.

Just some things I would consider. Again, this is just one way to address it.

[rottweiler]

Assuming one has reserved their rights during the stop, immediately file a counterclaim in a court of record challenging jurisdiction. It is impossible for the government to prove jurisdiction over one of the people, ask...no, order the magistrate to sign your order for damages

[Soldier of Truth]

Originally Posted by rottweiler

Assuming one has reserved their rights during the stop, immediately file a counterclaim in a court of record challenging jurisdiction. It is impossible for the government to prove jurisdiction over one of the people, ask...no, order the magistrate to sign your order for damages

FYI: Rottweiler, state courts are not bound by federal law unless they are entertaining federal questions. So if it were I, I would find a state equivalent citation, saying the same thing.

The way it works is, in federal court use federal law and constitution, in state court use state law and state constitution.

If state is entertaining federal law then it is bound by federal laws and decisions. If it is federal court entertaining state law, the federal court is bound by state laws and decisions.

The only way federal law is applicable in state court is via the 14th Amendment and the Interstate Commerce clause.

Though I would agree that the gubmint can't "prove" jurisdiction, (which MUST be established on the record) you show up and the challenge can be considered waived.

Which is the reason I stated the above issues, because if there's no prosecutor, the motor vehicle agency maintains primary jurisdiction (as the agency "delegated" the authority to "enforce and administrate" the vehicle code), then should one be compelled to participate, then those issues show by the record that no jurisdiction could have possibly been established.

Though I wish it were as simple as you've stated. That would be great!

[rottweiler]

I don't know what gave you the impression I was talking about federal statutes and codes. I don't believe there really is such a thing as state or federal "law".

The counterclaim is filed in a superior court of North Carolina which is a court of record. In the body of the complaint it must be stated that the counterplaintiff is one of the people, that this is a court of record, and the government can not possibly be sovereign over one of the people. Of course there is more to it than that but you get the general idea.

Also, in a court of record the sovereign(that's me) decrees the law so I can use the FRCP, North Carolina court rules, or I could create my own if I wanted to in a superior court of North Carolina.

P.S. I like the Voltaire quote, I used it today but I didn't realize where I saw it until now.

Originally Posted by Soldier of Truth

FYI: Rottweiler, state courts are not bound by federal law unless they are entertaining federal questions. So if it were I, I would find a state equivalent citation, saying the same thing.

The way it works is, in federal court use federal law and constitution, in state court use state law and state constitution.

If state is entertaining federal law then it is bound by federal laws and decisions. If it is federal court entertaining state law, the federal court is bound by state laws and decisions.

The only way federal law is applicable in state court is via the 14th Amendment and the Interstate Commerce clause.

Though I would agree that the gubmint can't "prove" jurisdiction, (which MUST be established on the record) you show up and the challenge can be considered waived.

Which is the reason I stated the above issues, because if there's no prosecutor, the motor vehicle agency maintains primary jurisdiction (as the agency "delegated" the authority to "enforce and administrate" the vehicle code), then should one be compelled to participate, then those issues show by the record that no jurisdiction could have possibly been established.

Though I wish it were as simple as you've stated. That would be great!