New Article on What Is A Demurrer?

Original publication date: July 21, 2015

Hello Friends,

Learning how to use law can sometimes be tricky and frustrating. You have to be able to pay attention to detail, and to know what is happening (or what has happened) in order to get your point across in a matter. The slightest little misstep can spoil a winning process if you aren’t paying attention.

If you find yourself in the unenviable position of being in court, you must also be able to perceive things as they are happening, and to think on your feet so that you will instantly know what options are yours to use when the opportunity presents itself. And it is up to you, the claimant or disputant, to know enough about what you are doing in order to counter anything coming at you from your opponent.

Quite often, your best defense can be an agressive offense in the form of asking questions the anwers to which you already know will vindicate your position. This is the principle behind what a demurrer is intended to bring out. Although in today’s administrative courts demurrers have become abolished in many jurisditions, the concept that it brings out (seeking to find if there is a legal cause of action in an issue) can still be used effectively in any matter.

As was brought out in our article “What Does That Phrase (The laws sometimes sleep...) Mean?” sometimes you can use law (or even a principle of law) that has not been used in decades or centuries in the present day. It all depends on your being able to recognize what kind of court you are in as well as knowing and understanding the use of the law that you are contemplating using. Some people can hold their position and prevail in their efforts, while others become tricked out of their position by crafty attorneys or judges, and end up compromising the position they were attempting to maintain. 

In our most recent article, "What Is A Demurrer?", your attention is drawn to an archaic process of pleading known as a demurrer. It used to be that when one was being faced with a frivolous matter that one could enter what is known as “a demurrer in pleading” into the matter to force the claimant to show proof of a legal cause of action in a matter. If no legal cause could be shown, the matter could be immediately dismissed.

In criminal cases, a demurrer was considered a common law due process right, to be heard and decided before the defendant was required to plead “not guilty”, or make any other pleading in response, without having to admit or deny any of the facts alleged. In lay terms, if a judge sustains a demurrer, he or she is saying that the law does not recognize a legal claim for the facts stated by the complaining party.

It needs to be taken into consideration that when a demurrer is used in a matter, all the facts of the matter are automatically accepted as true. In other words, any of the merits of the matter (for instance the fact of exceeding the posted speed limit in the matter of a speeding ticket) are not being objected to, and are thus considered as being agreed upon. Yes, you agree that you were driving over the speed limit, but no one was injured or caused any damage by your doing so. Therefore no valid cause of action. So, before you decide to do a demurrer, make sure that you have no objection to any of the facts in the matter, but only to the lack of a valid claim or cause of action.

The demurrer asks the judge to rule on the face of the pleadings that the plaintiff has not come forward with a valid cause of action, and therefore the matter should not be adjudicated. This is referred to as challenging the “legal sufficiency” of a claim or cause of action defense. If no valid cause of action was brought up within the pleadings, then the demurrer was to be granted, and the matter before the court dismissed.

The required response to a demurrer was all taken care of at the very beginning of a controversy before a plea to the matter could be asked by the court or entered by the accused; and in this way the demurrer is similar to a “refusal for cause” which also must be accomplished at the beginning of a matter before the matter can go forward. A demurrer, much like a “refusal for cause,” is used to seek remedy to an insufficient pleading.

Keep in mind that a complaint (as in a traffic complaint) is not the same thing as a claim. A claim needs a credible fact witness, an injured party, and sworn testimony to an injury to rise to the level of a claim. If any or all of these elements are absent (as they most probably are in the matter of a victimless traffic violation), then there is no claim which can be put forth for relief. Also be aware that a legal fiction (i.e. the State) cannot put forth a valid claim against a flesh-and-blood man (or woman) because the state is a creation of the mind and therefore is legally non-existent. Meaning it has no standing as long as you decline to consent to its jurisdiction and stay out of its courts.

Yours sincerely,

Thomas Eliot
Common Law Remedy
BeatTrafficTickets.Org

Victimless Crimes, Genies, and Accountability

Original publication date: July 28, 2015

Hello Friends,

Did you happen to catch this post over at Sui Juris Forums in the “Legal Theory Analysis” forum?

http://www.suijurisforum.com/post50636.html#p50636

If you did, you probably noticed something familiar. And that something familiar was the concept of the demurrer being mentioned. While the concept may, in some jurisdictions (states), no longer be used in pleading, the principle it is based upon is still a valid defense in today’s courts, no matter whether the court uses the common law (not very likely unless it is invoked by one of the parties) or statute law (much more likely to be the case as most people are ignorant that they have a choice of law when there is no contract in play).

What I’d like to point out to readers in the post is the idea that even in a court of legal fictions, there needs to be an actual injured party, not just some fictitious party calling itself “the State” that was supposedly “injured” by the violation of some traffic code or ordinance. These are points or elements of actual law, not just color of law statute. This point is brought home in the OP (Operating Premise) of the thread where Phosphene states:


What he is referring to is brought out in the post by Jethro who stated: “In a ‘victimless crime’ case, no man will or can stand up and testify under oath that you caused him harm, injury or loss. The man acting as prosecutor cannot, the man acting as judge cannot; not even the man acting as ‘officer’ can testify you caused him harm, injury or loss. If the plaintiff is ‘State of XYZ’, XYZ cannot talk or be cross examined. Not a single man from XYZ will [put forth a] claim [which] caused him harm, injury or loss. Therefore the plaintiff is a phantom and cannot appear. If the plaintiff cannot appear, there is no case.”

One of the other things being referred to, for example in the matter of a victimless traffic citation, the matter being adjudicated in an administrative court where only legal fictions may enter and plead, is that when no one stands up and admits to being the legal fiction named in the caption of the case, then the court is in a real bind as to find any one entity culpable to whatever complaint lies before it.

In order for the court to find “someone” guilty, someone must agree to be a fictitious party answering to the NAME in the caption, thus identifying and creating a nexus with the NAME, in order for this fictitious court to pronounce a verdict against that fictitious person. Not only is the accused party agreeing to be fictional, but the judge, the prosecutor, and the law enforcement officer are all agreeing to be fictional too. They are all part of a fictitious political entity calling itself “State of California” (or whatever state is mentioned) in the caption of the matter.

If you have been reading the suggested information pieces on our website, you will have come across a piece entitled “Political Jurisdiction,” published by the Sovereignty Education and Defense Ministry (SEDM).

Political Jurisdiction
http://sedm.org/forms/05-MemLaw/PoliticalJurisdiction.pdf

In this piece, you should have discovered that “courts may not involve themselves in any strictly political question; they may not involve themselves in the affairs of a political party or its members; they may not compel participation in political parties or interfere with membership in them.” Do you realize the importance of that last statement? Let me say it again: “Courts may not compel participation in political parties or interfere with membership in them.” This means that any government court, employee, or officer who quotes rulings from state or federal courts against a person domiciled within a state of the Union is:


If you, as the accused, do not agree to represent yourself as a legal fiction state or national citizen (which is a political question), then the court is in a real dilemma when it comes to finding anyone willing to play its fictional game and agree to be punished for committing a fictional violation of a rule in which no one was actually harmed nor their property damaged. The plaintiff, at this point, would need to introduce evidence proving a nexus with the NAME if they were going to pin this fictitious charge on the accused. This is why Pumpkin makes the statement at the end of his second post saying: “Was the answer back in the day with the demurrer. It worked in civil and criminal matters. Today the demurrer has changed to ‘failure to state a claim’, and for that little reason it is overlooked.”

In addition, there are other overlooked aspects that one can pick up on about law embedded in these posts. You just have to know what you’re looking for. Or at least be paying close enough attention to ask the right questions in order to uncover something you didn’t know about law that may help you in a current or future matter.

Notice where Pumpkin makes the statement:


Pumpkin makes a very good point here. Do you see what it is? A complaint MUST CONTAIN a claim for it to be relevant at law. If the fact that the complaint does not contain a claim becomes part of the RECORD of the matter (either through oral testimony or a written interrogatory as may be found in an affidavit) then the plaintiff is charged with bringing forth evidence of, and entering in the record, a verified claim! If there is no claim, the complaint dies on the branch. Meaning “failure to state a cause of action.”

According to magistrate judge Thomas B. Smith in Sarsoun v. Bank of America Case No. 6:14-cv-2054-Orl-18TBS: “The complaint should also be dismissed because Plaintiff has failed to state a cause of action. To state a claim, a plaintiff must provide a short and plain statement of the basis of the Court’s jurisdiction, the plaintiff’s entitlement to relief, and a demand for relief.” Do you see such a statement in the complaint made against you on the citation?

Are you beginning to see that oftentimes, the best defense to a frivolous presentment can be to ask the right questions. Questions like the ones pointed out by Phosphene:


However, be aware that you would only be able to ask these questions after you had waived personam jurisdiction and entered the matter as a party. This would entail giving up the position established by your “refusal for cause.” Think long and hard before you contemplate taking such a step. In returning the presentment (citation) to its issuer “refused for cause” you are telling the presenter that he has not proven ON THE RECORD any obligation owed by the so-called “defendant” to abide by whatever code he is specifying has been broken or violated. He is presuming that the “defendant” is obligated without bringing any evidence of that obligation into the matter. What you are doing is asking him to bring in evidence that he generally knows he does not have! Hence, no claim, no case. Period!

Yours sincerely,

Thomas Eliot
Common Law Remedy
BeatTrafficTickets.Org 

Case Dismissed: An Example Of Asserting Due Process

Date: September 02, 2017

Hello Friends,

For those readers who think that taking the time to learn about how to assert law into a statutory matter is a fruitless endeavor, today’s newsletter documents a victory by one subscriber who prepared himself to do battle with a municipality on camera speeding  tickets. Observant readers will pay close attention to the clues offered in the details which point toward the success that he experienced in his account.

If you enter an administrative courtroom to do battle against a frivolous traffic ticket, you had better know what you are doing if you want to prevail in the matter. Evidence of victories using the common law over the state in defense of traffic citations usually comes in the form of anecdotal accounts. These accounts never make it into the record of the court action so that they can be used and cited by subsequent suitors. The reason for this is obvious: these courts do not want you knowing how to defeat their frivolous legal process. 

The subscriber involved came across the Common Law Remedy information AFTER he had already become involved in an issue. Therefore he was unable to execute the process as it was meant to be executed. However, he instinctively used the information he had learned from the report as well as several other sources which he had researched to help him design a winning defense. And that is exactly how he should have used that information, thinking and reasoning for himself rather than to rely upon it as a means to an end in itself.

If you think that putting up a fight against a frivolous speeding ticket is a waste of your time in attempting to put up a defense against the state, then perhaps you’re not as convinced (as some people are) of your conviction or ability to avoid becoming a victim of extortion. Today, we’ll look at an example of a man who was not content to stand by and allow the state, without a lawful cause, to extract money from him.

In the following example, a subscriber wrote to me describing some speeding tickets that were witnessed by a camera, and which a municipality was attempting to use as evidence to bring a lawsuit against the subscriber. Two years prior to the issuance of the lawsuit (which was based on a subsequent incident), the municipality had sent notice by mail concerning an infraction it’s camera had caught. At the time, the subscriber had sent a reply back stating that he “did not consent” and “no contract existed” to the frivolous complaint notice. He did not hear anymore about this complaint until two years later when he received a notice of another camera citation.

This second camera citation was for a day and time when the subscriber had not been present in the city at the time of the citation. Turns out his brother had been driving the car at the time it was cited, and since the car was registered in the subscriber’s name, not his brother’s, the citation was sent to the registered owner.

The subscriber had been served the lawsuit two months prior, and was contacting me about a week or so before it was to go to trial. (A week before trial is not a favorable time to be contacting someone about fighting a lawsuit. There’s not much that can be said or done by that time. And yet you would not believe how many times I have been contacted by people in that exact situation. They wait until the very last moment to try putting together a viable defense.) Nevertheless, I did my best to answer his questions.

He wrote that he received the lawsuit from the city in January 2016. At the pretrial hearing, he stood up for himself, challenging the court, and wrote that: “I made a statement that I was making a special appearance to challenge jurisdiction only and reserved all rights and waived none. I also stated that the city of Toledo and the municipal court were one in the same so it was the improper venue. Judge stated he had jurisdiction for municipal ordinances, and I could make motions to the court, he would set the date for trial. I stated again that I do not consent. I did not answer to the name, only that I was here on that matter. Trial is set for Monday AM.”

It turns out that he had been studying and researching these matters before hand, and had come across some information which he thought might help. He was looking into the information on the Common Law Remedy website and publications to enhance his knowledge. He had found that the state law required an officer to be present to witness the infraction. He learned that the officer involved in the citation said he was not present. Therefore, no fact witness. The camera is an inanimate object; it cannot issue a complaint. Without a fact witness, the matter is dead in the water.

Nevertheless, the city had issued its lawsuit, likely in hope that the defendant wouldn’t be able to defend it properly. It turns out, they picked on the wrong defendant. Prior to the trial the subscriber had filed an objection statement that the court had no jurisdiction, and stated that the “municipal court and the plaintiff were one in the same making this an improper venue, supported by the affidavit attached.”

He had used the Declaration of Truth Notice and Affidavit of Identity document from a Common Law Remedy publication as support for his objection. In essence, he was stating that the state had no standing to be making the complaint in the common law venue, and that the statutory venue was compromised by a conflict of interest. Standing refers to the “capacity to be a party to an action; capacity or ability to sue. It is the ability of a party to bring a lawsuit in court based upon their stake in the outcome.” In the common law jurisdiction, the state, being a legal fiction, had no standing to bring a lawsuit against a man. But even within the statutory jurisdiction, the state had no fact witness to a damaged or injured party, and therefore no standing to be bring suit.

Generally I have not recommended that people use that Affidavit of Identity in conjunction with a refusal for cause (R4C) because it is my understanding that there is no need to explain the R4C. It is up to the plaintiff to find and correct the errors in his process. If personam jurisdiction isn’t proven on the record in the pleadings (complaint), that in itself is an error. If this fact is not objected to by the accused at the earliest convenience, then the error is waived, and the matter can proceed forward.

In the above matter, the affidavit was used as supporting evidence of the man that he was not “appearing” as a surety for the artificial person listed on the lawsuit. This paperwork must have struck a nerve with the prosecuting attorney, as the subscriber stated that:

“I used your affidavit and exhibits from your book. I gave a copy to the judge and the city attorney before the ‘case’ was called. The attorney read it. The judge never read the entire thing. When the case was called I went up to the bar staying in the gallery as I always do, and before I could say a word the city moved for a dismissal. [The city attorney] said he did not understand my paperwork or my statements about living breathing human being but thought it would be best to dismiss.”

Not all courts (or court officers) are alike, therefore it is impossible to predict with any certainty whether they will all react the same given the same circumstances. Although no doubt, as this subscriber mentioned in a post script, there is some truth to his comment: “I don’t think they want any part of a real trial. It’s much easier to get people to go along with paying. The ones that fight, they give up [on].” I prefer to think that the record of the matter that this subscriber presented in his objection to the action made quite a bit of difference, and I congratulated him on his use of reason and thinking for himself. The written record he documented (without a rebuttal by the city) made the city look unfair in its attempt at prosecution. Conflict of interest, in other words. Likely the prosecutor wanted no part of those facts being exposed on the record.

What was satisfying for me was the fact that the subscriber took the matter into his own hands and figured out a way to handle it, given the information he had available (some of which came from my publications, others of which were from other sources). While I make no claim for his success, I do credit him for having the courage to stand up for himself, and for understanding and asserting the concepts about which he learned. If you are armed with knowledge and you don’t use it, what good is it?

He said in a subsequent email: “I will tell you that before I went the first time to court, I had read the first free book [Common Law Remedy To Beat Traffic Tickets] and I stood  up for myself [at the pretrial hearing], but once I bought the other two [books] I totally got the concept. I had much more confidence. I felt like had they not dismissed it, I was prepared to do battle. That affidavit is well written and makes sense.”

As always I encourage your feedback, if you have a question or a comment, pro or con, as this helps me to assist you in correctly understanding your process at Law.

Yours sincerely,

Thomas Eliot
Common Law Remedy
BeatTrafficTickets.Org 

The Importance Of The Timeliness Of Your Objections

Date: October 07, 2017

Hello Friends,

Today I’d like to discuss something of supreme importance in relationship to walking into any courtroom and having to deal with any kind of legal matter. It relates to the timeliness in which you make your objections or rebuttals to an asserted fact by your opponent.

If you are ever forced to attend a legal hearing in a courtroom (such as Traffic Court) and you have little or no experience in conducting yourself before a court, today’s newsletter is one you will want to pay close attention to. Because if you do not learn this lesson, you could very well allow a winning point for your side of the matter to fall into fatal jeopardy. Perhaps you’ve heard of the term “sudden death” in reference to an overtime playoff period in American football. For those who are unfamiliar, sudden death refers to the rule that when both teams are tied at the end of regulation play, the first team which scores in an overtime period wins the match. Therefore, the defending team must put up a adequate defense in order to stop the offensive team from scoring so that it can get the ball and score.

How this relates to courtroom procedure is: if you don’t know how to stop your opponent at the earliest opportunity from asserting a fact into the matter that you know is false, then you have lost that opportunity for the remainder of the proceeding and cannot bring up that matter (objection) later on. In essence, your opponent scores a point of fact being used against you. In other words, if you decline or fail to object to a false statement as soon as it has been uttered (or asserted in writing), you lose the opportunity to bring that objection of fact up later on. It means, in essence, sudden death to your objection!

You have to strike when the iron is hot, and keep the pressure on your opponent. When faced with an assertion of fact from your opponent to which you want to object or rebut and therefore disqualify the assertion as a sustained objection, if you don’t make that objection timely enough, you will lose its force in proving your winning point. In the case of a refusal for cause (R4C), your winning position is that the plaintiff has not proven on the record that he has personal jurisdiction over you. You will lose that objection if you don’t do it timely. And timely means BEFORE any arraignment proceeding takes place.

You cannot go into court and plead “not guilty” (or enter any kind of plea) if you want to challenge personam jurisdiction. Why would you enter a plea to something that doesn't concern you? Once you enter a plea of any kind, you have effectively waived any defects in the legal process, which includes any objection you might make to personam jurisdiction. These commercial courts won’t allow it. This means that as soon as you voluntarily enter any plea to what you know to be a frivolous matter, you have acquiesced to personam jurisdiction in that matter and cannot bring up that objection later on.

When you are standing before a magistrate, no one but you yourself and your own foresight and preparation in knowledge will ever help you succeed in throwing the burden of proof back upon your opponent. If your objection or rebuttal is not done in a timely manner, the court will carry on as though an untrue assertion made by your opponent is a relevant fact in the matter, and will proceed despite your vociferous objections AFTER the fact has already been acquiesced to through your silence (or failure to take advantage of your opportunity to object).

The sequence of events that occurs in a courtroom is all important. This is what “timeliness” refers to in law. You must be prepared ahead of time to rebut opportunely (i.e. as soon as possible!) any presumption or assertion the plaintiff may be making if you want to prevail in your objection to an alleged fact. Otherwise you will be stuck having to figure out another defense. Because as soon as you let that opportunity pass, you cannot go back and correct the record. The court will say, “You had an opportunity to object to that assertion by the plaintiff when it was made, but you chose not to. Therefore you will have to live with that decision. That fact cannot be revisited because you let it go by without objection.” Period!

Yes. I know this stinks. And it’s not fair if the object of the controversy is to get at the truth. But this is how these courts work, and you must pay close attention to everything — every word and idea that is expressed — in that courtroom during the oral proceedings if you want to prevail. It can take a tremendous amount of presence of mind to be able to successfully accomplish this while facing, in the heat of the moment, a judge and prosecutor in court, but this is what you must do if you do not want to allow the court to railroad you into a conviction using untrue facts.

In the matter of refusing for cause a victimless traffic citation, this is why you must NOTIFY the court with your documentation prior to the court date for a hearing on the “refused for cause” legal presentment (citation) coming at you from the law enforcement officer. That refusal for cause is rebutting the officer’s presumption that a valid contract or agreement exists with the state holding you obligated to perform (pay a fine or whatever) on the penalty for a traffic code violation. If you don’t NOTIFY the court (preferably before the arraignment hearing, but in reality at anytime leading up to and including the day of the hearing), of your rebuttal of the officer’s presumption, then the court will follow through with its arraignment of the “defendant” and set the matter for trial.   

When I state that the R4C is rebutting the officer’s presumption that a valid contract or agreement exists giving him the authority to issue the ticket, as far as the officer may know, his presumption is based upon the existence of a driver license, auto registration, license plates, and a certificate of title to the auto allowing it to be registered in the first place. But if you know how to present your objection that these are not evidence of a valid contract or agreement at law (meaning at the common law), then you should be able to win that point. The information you need to rebut the asserted false fact that these state issued documents are a valid contract at law is contained in the free report.

Now, just because you were timely in notifying the court of your refusal for cause of the citation, providing evidence of having returned it to the plaintiff, don’t expect that the court will automatically recognize this. Some courts may, while others may not. This harkens back to the commercial maxim (echoed in the free report) that “He who leaves the field of battle first loses by default.” The courts are relying on the fact that most people are ignorant of their right to travel unencumbered by statute, and that they will want to retain their driver license. Therefore if you abandon your position challenging the plaintiff’s jurisdiction, then you are abandoning a winning position and leaving the field of battle first!

Either way, you have to be prepared for the outcome. Some states are putting added pressure on people who have established a winning position using the R4C method to pay up or their license will be suspended. Well, if you know you don’t need a driver license to travel in your private capacity outside of commerce, then just give them back the license and be done with it. Or you might try the defense that Carl Miller used when faced with a similar matter for driving without license plates. A link to his video follows below. He stated in one of his videos that:


By the way, according to Carl, the judge dismissed that case. But don't try this unless you understand what you are doing in an oral exchange. If you look up the case cites you will see where he was within rights to make the assertion he made. I will leave it up to the reader to do the appropriate research to verify the case cites. Just put the full case title for each of the cites into your favorite search engine and look for the results. You may want to read more than one result for each case in your research in order to find the confirmation you are looking for.

Carl Miller - Right to travel without a license plates  Time: 6:25
https://www.youtube.com/watch?v=cV8gRA-JYeg

As always I encourage your feedback, if you have a question or a comment, pro or con. They are welcome as this helps me to assist you in correctly understanding your process at law.

Yours sincerely,

Thomas Eliot
Common Law Remedy
BeatTrafficTickets.Org




If you would like to learn more about these concepts so you can avoid the whole mess without having to “appear” in court at all, you can download our free ebook Common Law Remedy To Beat Traffic Tickets and learn about the secrets that the courts and legal profession don’t want you to know.

If you’d like to learn more about the law and how it can serve you, don’t hesitate to check out our Articles on Traffic Law section. Discover some of the secrets of law that you’ve never been taught!

The laws sometimes sleep, but never die.

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