Special Appearance in Court And
Your Right Of Avoidance
Breaking
the Choke Hold of the Code
As
explained in our article
What Is A Special Appearance In Court?, when
your “person” makes a general appearance in a
government administrative court without specifying
a condition for the
appearance, you automatically waive all defects in process and fall
under the
personam
jurisdiction of the court. Meaning the plaintiff
does not have to prove jurisdiction over your
“person[a]” on the record,
because you have just acquiesced to it. If you
know what you are
doing
and are able to articulate why you are there at all, this does not
necessarily have to be a negative or create a problem. Yet, for many
people, it
can
present an obstacle that they may not know how to
overcome. Handing over jurisdiction to a court in which
jurisdiction hasn't actually been proven on the record can be a scary
circumstance to confront.
But let's back up for a minute and be clear about what a
“special appearance” is all about. A party may make
a special appearance before a court for the sole purpose of objecting
to the court’s jurisdiction over that party, a juridisction
known as
personam
jurisdiction. Since the court presumes the party to
be representing a “legal fiction” who is a member
of the legal society over which the court maintains jurisdiction, the
party can object to that assumption by rebutting it and stating that he
is “a man” (or woman, as the case may be) and not a
legal fiction. If the party makes a
general appearance
to
respond to the complaint before the court, instead of a special
appearance, then Common Law dictates that the party thereby waives any
objection to the court’s jurisdiction over his
“person,” which is presumed to be an artificial
“legal person” and not a flesh-and-blood man or
woman. The problem for the administrative court in the case of the
latter is: it cannot hear a case between a man and a legal fiction.
Both parties have to be of the same class or status. The maxim of law
regarding “equality under the law” comes into play
here. If “a
man” shows up as the accused, then
only another
“man” with a verified claim may come at him with
the controversy. A legal fiction may not.
There can be any number of reasons why a party may wish to object to a
court’s presumption of jurisdiction, such as when
service of process was insufficient or defective, or when there is a
variance between the complaint and the summons, or when the complaint
or suit was brought in the wrong court. When a party wants to make a
jurisdictional objection, he has the right to appear for the
special
purpose of making that objection without acquiesing to
personam
jurisdiction, yet according to common law, the party must clearly and
specifically state to the court that he is specially appearing. At that
point once the objection has been entered on the record, the burden
switches, and it is up to the plaintiff to prove he has jurisdiction
over the person.
It is also at this point where the right of avoidance can come into
play. If you are not a member of the political or legal society over
which the court has jurisdiction, and you do not agree to be
characterized as a legal fiction, you can stand up and say so by
rebutting the court's presumption that you are. “I, John
Steven, am a man. Is there a man in this courtroom who has a claim
against me?” If no man stands up and enters a claim against
you, then by all rights you are free to go. In other words, unless you
are an employee of government or are under some other contractual
obligation to obey the traffic codes in your area through the
prima
facie evidence of having a driver license, in the instance
of a
victimless traffic voilation, you have a right to avoid that
jurisidiction since no one was injured or suffered property damage, and
your natural right to travel on the public thoroughfares cannot be
legislated against. But you see, you have to understand these concepts
well enough to be able to articulate them in court.
What is about to be explained in this article is not general knowledge
among the public. Yet, because of previous mental conditioning, many
readers may find the concept explained here difficult to grasp and to
accept simply because they haven't had enough experience in court to
see and confirm how it works. In some cases, the courts themselves may
not be honorable, thereby precluding any first hand evidence of the
efficacy of the information presented herein. In other words, the court
will overstep its legal and lawful authority and attempt to commit a
fraud and an injury on the accused person through coercion by refusing
to recognize his
process, thus dishonoring him. Suffice it to say, that if
you are in a country where the legal system is based on the common law,
you can safely assume that your process will eventually carry the day
(as long as you know what you are doing and do not make any mistakes
while executing your process).
The first shocking revelation of which you need to be made aware is
that the legal system in America (as well as Great Britain, Canada,
Australia, New Zealand and any other common law country) is applied on
a parallel track with two types of law allowed to be accessed
simultaneously in the court. In other words, as soon as you step into a
government administrative court, your “person” will
be subjected to a court in which there is a dual jurisdiction. As
incredible as it may seem, and contrary to most misinformation about
law floating around, both common law and statutory law are available to
the parties involved in the ordinary victimless traffic citation. Yet,
because this information is not generally known, most people will to
their detriment assume that they are in a common law court when in fact
the court is listening to both sides of the matter (i.e. the common law
side
and
the statutory side) simultaneously. Once the
“man” makes the mistake of
recognizing the
statutory side of the matter (through a “response”
that brings alive the artifical dimension or
“person” of the so-called
“defendant”), then it is all over and
personam
jurisdiction has been relinquished!
In actual practice what this means is that if you want a matter to be
adjudicated according to common law precepts and not “color
of law” statutes under private law, you have to take that
position from the very beginning and maintain that position all the way
through the action without giving any credence (recognition or consent)
whatsoever to the existence of the statute or code side of the matter.
That means you should not
address
or even
look at
the person accusing
your
persona
or recognize them in any manner whatsoever, other than to call them
as a witness for your side in order to testify that they have no valid
claim
against you. If you can do this to the satisfaction of the
magistrate (providing he or she is an honorable person), you can
prevail as long as there is no man (or woman) present in the matter to
make a
claim
against you. One way to look at this is that this all has
to do with maintaining
personam
jurisdiction on the common law side of
the matter, one of the two types of jurisdiction a court needs in order
to proceed with a matter that is before it. Without
personam
jurisdiction having been established on the record when it is demanded
to be established by the accused, the court can proceed no further with
the matter before it.
Another important concept to become clear about here is the concept
about
having a
claim
before the court. If you have placed your claim (in writing or orally)
before
the court in the common law as a “man,” then that
claim takes precedence over any unverified complaint that may be before
the court in the fictional statutory law realm. You need only say as
little as possible and then go silent. Once you have placed your claim
before the court and the court has indicated that it is cognizant of
that claim, and after having asked in open court “Who is here
to say that I have trespassed on their rights?” When no one
stands up to answer that question, then you have made your point. You
can even ask that question of the plaintiff in a
direct examination (
not a cross
examination) of
that witness on your common law side of the proceeding: “Do
you, sir, have a claim against
me?” When the plaintiff answers “No,”
(legal fictions cannot cross over into the common law because they are
legally non-existent; only another “man” can
truthfully answer such a question in the affirmative) you have just
stated your case,
with the plaintiff testifying that he has no claim. You can now sit
down and remain silent throughout the rest of the proceeding.
In other words, whatever case the plaintiff wishes to bring on the
statutory side against the legal fiction (your all caps NAME) makes no
difference to you. You must not even acknowledge that side of the
matter if you wish to maintain your position and status as “a
man.” Because the plaintiff is speaking to the legal fiction
and
not to
the man.
And the only person who can bring that legal fiction alive on the
statutory side of the matter in the courtroom is YOU! If you
acknowledge that you are a representative of the legal fiction by
responding
in any way
to the plaintiff who is coming after your legal fiction, then
you will lose your challenge to
personam
jurisdiction simply because you didn't learn to keep your mouth shut
when you were trying to maintain your position. It is
literally that simple!
If you would like to learn more about concepts of law so you
can avoid the whole mess without having to “appear”
in court, 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.