How To Win

[weishaupt1776]

http://www.lawyerdude.netfirms.com/7260.html

[Livefire]

I especially like the summons to hand out to the cop when stopped!

[weishaupt1776]

From Utopian News -(clip)

The jurisdiction of Traffic Courts is based entirely on an unlawful process that is used to generate revenue for the county and state treasuries. The judicial system is fully aware of the conflict of interest that arises within that administrative tribunal called traffic court. The judges, referees, and attorneys know full well that this judicial process is unlawful under both the civil and criminal codes which prohibit the mixing of the two procedures. However, if the parties do not challenge the alleged jurisdiction at the beginning of the proceedings, the courts will assume your tacit agreement permits the traffic court to hear the infraction brought by a County District Attorney, if any? Many times the D.A. is never involved because the defendant waives his/her right to challenge the validity of the fallacious complaint submitted by the police officer and agrees to pay the penalty out of ignorance of your legal rights and of judicial procedure that is required to bring forth a lawful complaint. Most of us are completely ignorant of what constitutes a "sufficient civil complaint."

*The real "jurisdiction" of the civil code are the statutory laws for settling contract disputes and tort claims. A tort is defined as a private or civil wrong or injury, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages. Three elements of every tort action are: (1) the existence of a legal duty from defendant to plaintiff, (2) a breach of that duty, and a damage that resulted from the breach of a duty that arises by operation of law. By "operation of law" we mean that a duty arises [exists] by statute to protect or respect the personal and property rights of another individual.

*The legal wrong committed upon a person or his property is not based upon a contract, but upon an invasion of some legal right of the individual. For example, a careless driver of an automobile backs into another car while she is talking on her cellular telephone to her mother who is reprimanding her daughter for not leaving the garbage cans on the curb before leaving for school. The collision causes $1,200 in damages to the trunk of a 1995 ford sedan due to her negligence. She had a duty to be careful in the use of her automobile which she breached resulting in damage to property of another. The damaged party has a cause of action to recover the cost of repairs to restore his car to its original whole condition. This "property tort" is distinguished from a "personal tort" which involves an injury to the person or to his reputation or feelings (self-esteem).

*Another type of legal wrong can arise from a breach of a civil right, privilege, or immunity secured by the Constitution or State laws. This would be a Constitutional tort. The jurisdiction for a cause of action would arise under federal law at Title 42, U.S.C. Annotated, section 1983.

*A damaged party must present relevant evidence of the injury to his property or person to the tort-feasor and make a demand for compensation. The evidence can be photographs, a written estimate of repairs by competent repair shop, and a bill of claim of damages if repairs would exceed the value of the damaged property. If the tort-feasor is covered by insurance, the claim is submitted to the insurance claims adjuster representing the insurance company that was hired to protect the tort-feasor from actual financial liability. If the claim is settled in full to the satisfaction of the damaged party, the action is nullified. But, if no settlement can be reached to fulfill the compensation for the injury, then the dispute can be taking to a competent court of law for remedy and have it settle the claim between the parties. The claim is filed with the proper court by filing a (1) complaint for damages, (2) an affidavit of truth attesting to injury and damage, and (3) submitting substantiating evidence supported by witnesses to prove the relevant facts. Many claims fail the evidence test because the witness(es) is/are either not competent to testify to the facts (because of collusion or hearsay circumstances), or the material facts do not align with the circumstances. Without the three elements, the court would lack jurisdiction to hear the case and the action would be dismissed. A clever tort-feasor would file a demurrer to challenge the jurisdictional of the court if it lacked one of the three elements to prove jurisdiction. This is also known as a demand for "offer of proof" procedure.

*A damaged party has a limited amount of time for submitting a claim to the court for damages. If a claim is filed beyond the time limit specified by law in your venue, the claim fails because the statute of limitations [clock] has run down. Due process requires that the County D.A. in California bring you to trial within 45 days if you aren't incarcerated, unless you have waived time. Never, never waive time unless it is to your advantage. The burden of time is on the prosecutor because they are usually overworked with a large felony [criminal] caseload, and would rather not be bothered with a minor infraction. A favorite trick, that the D.A. might pull on you, is to serve you in open court at the arraignment with a written complaint if you have requested one previously. Always refuse service "for time" because they were required to serve you 14 days prior to your appearance and request the case be dismissed. Without a proper written complaint on the record, the court lacks jurisdiction [unless you mistakenly enter a plea, such as "guilty", "not-guilty", or "no contest" which is the same as a guilty plea]. Recuse the judge from hearing the case if he tries to enter a plea for you. If the judge acts as your attorney and tries to enter a plea, "Fire" the judge immediately who's acting as your legal representative and ask for a continuance to find your own competent counsel. The alternative to entering a plea is to file a demurrer challenging the court's jurisdiction which I will discuss below.

*Another type of civil claim for damages is based upon a breach of contract, the damaged party would file a complaint with the court and submit a copy of the disputed contract as evidence, stating which duty of the contract was not performed by the other party involved. Sometimes the courts will refer these types of settlements to arbitration instead of taking up the courts time.

*A traffic court is an administrative civil proceeding designed to fleece the public by imposing a secret jurisdiction devoid of constitutional protections. But, nevertheless, they must at least maintain the facade of due process. By using the facade to your advantage, you may be able to get your case dismissed prior to entering any plea to the charges. You must challenge this colorable jurisdiction at the beginning if you ever hope to achieve your remedy by getting the charges dismissed. If your traffic ticket does not involve actual damage to property or personal injury, the charges remain at the infraction level, whether its related to speeding, running a red light, or not wearing a seatbelt. All infractions are civil in nature and must therefore, follow civil procedure and the rules of evidence. The fastest way to obtain a dismissal is to challenge the court's jurisdiction by demurrer.

*The basis of the demurrer is the "insufficiency" of the face of the ticket. The traffic ticket is neither an affidavit claiming a damage or injury, and does not cite a specific statute that was breached causing a damage or injury to another party. A fictitious claimant has no standing to bring a claim before the court, and the prosecutor knows it. They just don't want you to know that. The State of California is a corporation, a fictitious entity and is not the real party in interest. The cop who signed the ticket has no valid claim for injury or damage and therefore is not a competent witness to a tort. The cop is not a party to a contract prior to the incident he is claiming party to. The material facts point to a complete lack of jurisdiction due to insufficiency of any alleged claim. No tort exists because no injured party has submitted any claim for damages. You must request a hearing date on the Law and Motion Calendar and file a demurrer and order with the court clerk. The D.A. must also be served with your papers 14 days before the court date. If you fail to serve the D.A. the court might just deny your submission for demurrer for lack of proper service unless the D.A. waives time and accepts your service in open court. Remember to file your proof of service with the court clerk and have your copy endorsed with a time stamp as well.

*At the Law and Motion Hearing, restate your demurrer in open court and demand that the judge sign the order to sustain or deny the demurrer giving the legal reason for the signed order, or in the alternative dismiss the charges for lack of jurisdiction for insufficiency of the face of the ticket on the record

[weishaupt1776]

The procedure is to learn the rules, procedures and laws and then use them to your advantage. This includes the rules of evidence.


*


A traffic ticket only has your signature agreeing to appear and some other "facts" on it. It does not match the summons or complaint requirement in the rules. The only duty you have is the one you create for yourself by signing the ticket agreeing to appear.


*


Therefore, your duty is to appear, which can be done by filing a "Special Appearance" Motion to Quash/Demurrer which complains that the defendant has not been properly served with a summons and complaint in accordance with the rules. Often, they won't bother with somebody who knows the rules well enough to make this filing.

[weishaupt1776]

Deny that jurisdiction exists but give the reason why. Was there improper service? Get the point? Get this into the record before you move on any other point of jurisdiction

Oh, and if you are right and the judge doesn't dismiss, have a Notice of Appeal ready with a request to stay the proceedings pending an appellate court review of the jurisdiction issue, in the interests of judicial economy, of course.

Now, if you really don't have a special appearance issue, then don't be filing it because you don't want to look stupid before the appeals court. But, if you do have one, then by all means go after it and make this as costly as you can for the other side.

You should file the special appearance and note in the document that this appearance satisfies your agreement to appear as signed on the ticket, if this is the case of a ticket of some sort. Then you sit back and wait to see if they are going to do it right and create a complaint and send somebody to serve you properly with the complaint and a summons.* ALWAYS SEND IT CERTIFIED MAIL RETURN RECEIPT REQUESTED SO THERE IS NO PLAUSIBLE DENIABILITY ON THEIR PART THAT THEY DIDN'T RECEIVE YOUR SPECIAL APPEARANCE AND YOU END UP ARRESTED ON A TRUMPED UP TRAFFIC CITATION.


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However, the judge may set a date for a hearing on the matter. If so, go prepared to hit them with Notice of Appeal and request for stay of the matter until jurisdiction is dealt with by the appellate court.


Your appeal is on the grounds that there is no in personam jurisdiction. Whether or not you are the "person" might be considered a fact issue. It might also be support for a motion to quash depending on your rules.


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Don't forget affidavits of fact where one is needed to bring facts not apparent from the document you file.

That is why you serve the appearance on the Court via certified mail, return receipt requested. If a clerk fails to file the document, that is actionable as a violation of your procedural due process of law which would be far more costly than the fine.


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Remember, you have the right to notice of a hearing. If the judge rules on the motion and then issues an arrest warrant in violation of the rules, his bias is exposed and judges don't do that unless they know they have an idiot before them.


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If one files the special appearance giving the law and facts in something resembling proper form, it is likely that they will hold a hearing or dismiss the ticket. If he holds the hearing, then we need to be prepared to appeal any decision that is not a dismissal.


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What the other side is supposed to do is to file a complaint, ask the clerk for a summons and then serve you to appear. They hate spending the money and will try to shortcut you. You can force them to do the right thing if you know the rules and it isn't likely that a warrant will issue because that exposes the judge to a suit for damages because he acted in the complete absence of jurisdiction.


*

[weishaupt1776]

This isn't complicated. You are issued a ticket on which you signed agreeing to appear. Appear is a legal term of art which CAN mean physically show up or it can mean appear by motion.


*


First, go get a copy of your state's criminal rules. In there you will find the requirements for a complaint/information. Take note of the fact that the ticket does not meet the form requirements for a complaint. Then also notice what constitutes proper service in those rules. If you don't find them there, look in the civil rules because civil rules cover what is not covered in criminal rules. You'll notice that being given a copy of a ticket doesn't match up to proper service.


*


Then, since you were not properly served with a copy of the complaint/information and a summons (order to court), you can file what is called a "Special Appearance." This Special Appearance has a few words of art that you need to include, i.e., alleged defendant appears specially, not generally, to challenge in personam jurisdiction of this court." Then you give the rules related to proper service, i.e., what must be served, how it must be styled, who must serve it, when it must be served, and a the lack of a summons, showing that rule that a ticket is a complaint to which a defendant MAY (but is not required) to plead.


*


Then, your conclusion is such that there has been no proper service as is required under the rules and therefore the judge must dismiss with prejudice. This doesn't mean that they can't refile after they fix the problem, only that this case is fatally flawed because they failed to perfect service as is required under the rules.


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If you want to take a shot at it and post it here for comment, I'd be glad to look it over. I won't research your law, only comment on the document's flow.


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If you have any other questions, feel free to ask.


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BTW, this is the demand for jurisdiction that others insist that you make. You show that there is no jurisdiction and then the plaintiff is required to prove it up. But, he can't since he didn't perfect service in accordance with the rules.


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Royce


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P.S.: this MUST be the first filing. If you've filed anything else, you missed your window.

[weishaupt1776]

The rules provide that a defendant may challenge in personam jurisdiction but that must be done by special appearance before any other matter is considered. The rules provide that a defendant MAY*accept the ticket/citation as a complaint but also that a defendant must be served with a summons and a copy of the complaint filed. If that service is not done, but only a ticket signed whereby a defendant agrees to appear, then the proper procedure is to file a Plea to the Jurisdiction Special Appearance Motion (which BTW satisfies the signed agreement to "appear" since one may appear by a filing). Once that is done showing the facts and laws applicable, the prosecutor has no defense to the Plea and has a choice. The judge has to dismiss because the law says so and a properly worded Plea will cause it to happen (or if the judge moves forward anyway one can move for mandamus). The prosecutor's choice is to either drop the matter or to file the (in Texas) Information based upon Complaint and then serve both it and a summons signed by the judge or his representative (the clerk) on the defendant. If you don't believe that's in the rules, that's OK by me. I'm just offering suggestions on how to deal with the problem.


*


BTW, if you know enough law to create such a motion, it is unlikely that the prosecutor will file his information based upon complaint unless he has nothing to do (hehehehehehe!).


*


Next, if the prosecutor SHOULD file and serve the defendant, the next step is our SMJ which a number of us have created and placed in the archives here. Once again, if the judge denies the law, one can immediately appeal and request a stay of the proceedings in the interest of judicial economy (of course!). If one's SMJ has the law and the facts properly sworn in a supporting affidavit, I know of no reason why an appeals court would not overturn the judge's decision with orders to dismiss.


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If one should screw up the MTD or Plea to the jurisdiction, then one is STILL left with trial on the merits where we all know that there is NO evidence that we are the persons intended to be regulated by the legislature (or empowered by the constitution to BE regulated) and NO evidence that our automobiles are the intended and targeted motor vehicles.


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This is my contribution as well as the contribution of other knowledgeable lawyers on this forum. The procedures outlined can be found in your state's rules. Should one run afoul of the feds in some way, these same types of procedures are found in the Federal Rules.


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One other thing I'd add is to study the Rules of Evidence in one's state, and if the need arises, the fed rules of evidence (they are not dramatically different). Knowing the rules will prevent presumptions being used against you because you will know how evidence is to come in.

[weishaupt1776]

Always remove the 1st judge & throw out the 1st jury pool, then ask for a change of venue, demand a full Natures & Cause hrg, then a full blown Probable Cause hrg, then raise every Omnibus hrgs, evidentary hrgs, Franks, James, Spreigle, Rasmussen, Frye, Kastigar, Jurisdiction, subject matter jurisdiction & always ask if this is a {Final Order} if the judge says YES, this opens the door to appeal & delay & if everybody did this, the machine would grind to a halt & We may be able to life in a Free Land once again, always do the opposite of what they want & never trust a public pretender & if You feel the pretender is stabbing You in the back & Your gut is screaming something is wrond-there is & DEMAND this be entered into the court's record there is a serious conflict with the lawyer & You have no faith nor confidence in his preserving your Constitutional Rights & ask for counsel outside of the pretenders office or ask for a continuance to hire your own but 1 of the first things to do when approached by the loizie is to lawyer up, take the 5th & demand the 6th but the most important factor is to hire a good private investigator, an ex-cop that hates the system, the reason for this is cops are pathological lairs & dirty judges. If you think You are safe in An American Court & the judge is going to do anything to preserve Your Rights under the Constitution he swore to uphold, you are in for a very sad & rude awakening

[mrg]

Originally Posted by weishaupt1776

Always remove the 1st judge & throw out the 1st jury pool, then ask for a change of venue,

demand a full Natures & Cause hearing,

then a full blown Probable Cause hearing,

then raise every:

Omnibus hearings,

evidentary hearings,

Franks, James, Spreigle, Rasmussen, Frye, Kastigar, Jurisdiction,

subject matter jurisdiction &

always ask if this is a {Final Order}

if the judge says YES, this opens the door to appeal & delay &

if everybody did this, the machine would grind to a halt &

We may be able to live in a Free Land once again,

always do the opposite of what they want &

never trust a public pretender &

if You feel the pretender is stabbing You in the back & Your gut is screaming something is wrong-there is &

DEMAND this be entered into the court's record there is a serious conflict with the lawyer & You have no faith nor confidence in his preserving your Constitutional Rights &

ask for counsel outside of the pretenders office or ask for a continuance to hire your own

but 1 of the first things to do when approached by the loizie is to lawyer up,

take the 5th &

demand the 6th

but the most important factor is to hire a good private investigator, an ex-cop that hates the system,

the reason for this is cops are pathological lairs & dirty judges.

If you think You are safe in An American Court & the judge is going to do anything to preserve Your Rights under the Constitution he swore to uphold, you are in for a very sad & rude awakening

Just wanted to look at it again this way. Thank you for this thread.

[ThomPaine]

weis,

do you have the original link to what you posted above.

Googled NDL and Law Discuss and had no luck. Found some of Royce' stuff in another thread on here, but pretty much the same stuff as above.

Thom