The Two Faces of Jurisdiction

What You Need To Know To Assert Remedy

The concept of jurisdiction in law has two faces (or two elements that must be met first) in terms of what a court must have in order to move forward with a matter. Were you aware that a court must have obtained both jurisdiction over an accused person (known as in personam jurisdiction) and jurisdiction over the subject matter involved? Unless you understand what these terms refer to, you could be waiving your rights to a remedy in a matter that does not actually concern you. Which means you will be entering a no-win situation with regard to the action that may be confronting you.

Jurisdiction in the matter of a victimless traffic ticket can be a tricky thing for an administrative commercial government court to obtain, especially if the accused (defendant) is actively asserting his choice of law in the matter as the common law. The so-called “judge” or magistrate in the matter will be the main sticking point which one needs confront. Because traffic courts are in general administrative commercial courts and not judicial courts, it takes the mistaken perception of the accused or the arrogant presumption of the court that a contractual agreement is in place before such court is able to gain personam jurisdiction over the accused in the matter. In other words, in an administrative commercial court, a contract needs to be in place before that court can compel performance on that contract. Are you aware of any contracts that you recently signed consenting to such jurisdiction? No? Well, then, you need to bring this matter up in an objection! 

However, before we explain this very subtle matter of personam jurisdiction in the matter of a victimless traffic violation, let’s back up and find out exactly what constitutes the gaining of jurisdiction for a court in such a matter.

In order for any court to gain jurisdiction in a matter that is brought before it, that court must have established on the record the two elements that constitute jurisdiction.  Those two elements are personam jurisdiction and what is known as subject matter jurisdiction. When demanded (and it is always a good idea for the accused to make this demand) these two elements of jurisdiction must appear on the record of the court or the court is operating without any authority. It is the duty of the party bringing the action (the so-called plaintiff) to prove both personam and subject matter jurisdiction before a matter can even be brought to a court. It is not the duty of the court (or the judge) to prove these elements of jurisdiction. Yet, because most people are ignorant of legal process, they do not understand that it is the plaintiff who assumes the burden of proving these elements with hard evidence entered on the record before the matter can proceed forward. A mere unsworn to accusation or complaint is not hard evidence of anything! Only sworn testimony from a competent injured party can stand as a verified complaint in order to provide evidence of jurisdiction.

Often, an ignorant victim of the legal system will accept (consent to) the assertion by a judge that he (the judge) has jurisdiction in the matter, without objecting that it is the duty of the plaintiff to prove both elements of jurisdiction and not the duty of a judge. Generally speaking, when a judge is asserting jurisdiction in a matter, he is asserting that his court is statutorily authorized to hear cases dealing with a specific subject matter because the statutes apply to the subject matter at hand, and ignorant victims of this sophistry simply accept the judge’s statement at face value without questioning the specifics with regard to the required elements which entail the gaining of subject matter jurisdiction.

While a judge is within his authority to assert that he can hear a certain matter within the parameters of a given subject matter such as a traffic violation, this is not the same as having subject matter jurisdiction proven on the record. There is a maxim of law which states: “What is like is not the same, for nothing similar is the same.” In other words, a simple assertion that the court can hear any variety of matters involving traffic violations does not reach the level of a specific matter being brought before the court by a specific injured party. There has to be a specific matter brought before a court before the matter can proceed in that court. If no one has an actual claim of injury or property damage, then subject matter jurisdiction has not been established! It is that simple.

So, what then constitutes the requirement for the establishing of subject matter jurisdiction? Subject matter jurisdiction needs to have two elements proven on the record in a court of law:

First, it is necessary that a competent witness (plaintiff or injured party) appear with a verified (sworn) complaint or that a notarized (sworn under penalty of perjury) affidavit demonstrating an injury sustained by a party be entered on the record. What is referred to in legal circles as a “sufficient pleading.”

Second, it requires a statutory or common law basis for a remedy of the injury.

At this point, it is interesting to note that any ruling made by a court in which there was a lack of subject matter jurisdiction disqualifies the ruling. That ruling is then called a “void judgment.” The reason it is deemed void (or disqualified) is because the court that issued the ruling never obtained subject matter jurisdiction in the first place! This is why subject matter jurisdiction can be challenged at ANY time, either before, during, or after a matter has apparently been settled. Having or obtaining subject matter jurisdiction is a big deal! Because without it, the matter itself is simply a frivolous matter.

It is important to note that subject matter jurisdiction can never be presumed, never be waived, and cannot be construed (inferred) even by mutual consent of the parties. As mentioned above, subject matter jurisdiction is composed of two principal parts: the statutory or common law authority for the court to hear the case and the appearance and testimony of a competent fact witness or what is known in legal jargon as “sufficiency of pleading.” In other words, if there is a defect in the pleadings, a matter cannot (or rather should not) go forward.

Defects in subject matter jurisdiction can include any of the following:

1.  No valid petition in the record of the case; Brown v. VanKeuren, 340 Ill. 118, 122 (1930).
2.  A defective petition was filed; Brown v. VanKeuren, 340 Ill. 118, 122 (1930).
3.  Fraud was committed in the procurement of jurisdiction; Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill.2d 202, 486 N.E.2d 893 (1985).
4.  A fraud was committed upon the court; in re: Villiage of Willowbrook, 37 Ill. App.3d 393 (1962).
5.  A judge does not follow statutory procedure; Armstrong v. Obucino, 300 Ill. 140, 143 (1921)
6.  Unlawful activity of a judge; Code of Judicial Conduct.
7.  A violation of due process; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938); Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E.2d 289 (1956).
8.  If the court exceeded its statutory authority; Rosenstiel v. Rosenstiel, 278 F.Supp. 794 (S.D.N.Y. 1967).
9.  Any acts in violation of Title 11 U.S.C. §362(a); in re: Garcia, 109 B.R. 335 (N.D. Illinois, 1989).
10.  Where no justicable issue is presented to the court through proper pleadings; Ligon v. Williams, 264 Ill. App.3d 701, 637 N.E.2d 633 (1st Dist. 1994).
11.  Where a complaint states no cognizable cause of action against the alleged party; Charles v. Gore, 248 Ill.App.3d 441, 618 N.E.2d 554 (1st Dist. 1993).
12.  When the judge is involved in a scheme of bribery (conflict of interest); the Alemann cases, Bracey v. Warden, U.S. Supreme Court No. 96-6133; June 9, 1997).
13.  Where a summons was not property issued.
14.  Where service of process was not made pursuant to statute and Supreme Court Rules; Janove v. Bacon, 6 Ill. 2d 254, 249, 218 N.E. 2d 706, 708 (1955).
15.  When the Rules of Circuit Court are not complied with.

Additionally, any ruling which involves a violation of due process of law under the Fifth, Sixth, or Seventh Amendments is also a void judgment. Void judgments can be attacked or vacated at any time, there being no statute of limitation. A void judgment is one which, from its inception, was a complete nullity, that is, without legal force or effect, invalid.

If a court obtains subject matter jurisdiction but fails to obtain in personam jurisdiction, then the matter, in theory at least, cannot go any further. The complainant must then seek out a court agreeable to the accused if he wishes to pursue the matter. In other words, the basis of law must first also be agreed upon. If the accused does not agree with the law being waged (as in the case of statutes that he deems do not apply to himself), then the complainant must be able to prove jurisdiction based upon some commonly held principles in law. This is because the court must first obtain jurisdiction over the person of both parties in the matter before it is allowed to proceed any further in the matter.

Generally speaking, jurisdiction over the parties (that is, in personam jurisdiction) can originate from any one of the following four sources. However, this doesn’t necessarily imply that the level of proof for any one of these cannot also be challenged. Any party to a matter must either:

1. Live in the territorial jurisdiction of the court. Or,
2. Operate a business in the territorial jurisdiction. Or,
3. Own property inside the jurisdiction. Or,
4. Commit an injury to another party in the territorial jurisdiction.

In addition to the above four elements for in personam jurisdiction, the parties must also have experienced due process of law through having had notice and opportunity to be heard and to defend (that is, to be in receipt of personal service, having received notice of a copy of the petition, claim, or complaint while being able to answer or respond to the alleged pleading).  In practice, this means that an adverse party to a matter must be personally served with the pleadings by a process server in order to allege that party is a party to the suit. If, as an alleged party to a matter, you have not been accorded due process, then that is a fatal error in legal process and the matter cannot (or should not) go forward.

According to Black's Law Dictionary, Fourth edition:

Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.

The essential elements of “due process of law” are notice and opportunity to be heard and to defend in orderly proceeding adapted to nature of case, and the guarantee of due process requires that every man have protection of day in court and benefit of general law.

However, obtaining in personam jurisdiction isn’t always as easily obtained by being able to allege that a party lives in the territorial jurisdiction of a court since local, state, and federal government courts are political entities and can only exercise jurisdiction over its political members or associates. Since all contemporary government is based upon the principle of a legal fiction, each member of the political association must agree to be identified as a legal fiction within the jurisdiction of the government for the government to maintain jurisdiction over a matter where a  party’s domicile is used in providing proof of territorial jurisdiction. If the party is not a member of the political association and claims to be the living breathing flesh-and-blood man, then the complainant has the burden of proving such jurisdiction through other means (such as using the jurisdiction of the common law).

What this means in a practical sense in terms of a victimless traffic violation is that this burden of proof rests on the officer issuing the citation. Once challenged, if he cannot prove that he has jurisdictional authority over a presumed member of the political association to whom he has issued a citation, then the court cannot verify that it has obtained in personam jurisdiction in the matter. Such proof of jurisdiction must appear on the record of the court once it is challenged. When the court has knowledge that in personam jurisdiction is lacking, the court (meaning the judge or magistrate) has no discretion in the matter but to dismiss the action for lack of jurisdiction.

Yet, in the case of a victimless traffic violation, it should be remembered that even if the court manages by hook or crook to claim personam jurisdiction, that subject matter jurisdiction can ALWAYS be challenged at ANY time. And when there is an absence of a competent witness claiming a real injury to self or property, there can be no subject matter jurisdiction and therefore the court fails to gain such.
 
If you ever get dragged into court and you wish to successfully challenge personam jurisdiction, it must be done at the very outset of the matter. Meaning that no other fact of the matter can be discussed or challenged other than personam jurisdiction. This can only be done, as mentioned, at the very beginning of the court process, which means that you must attend the court under a “special appearance” just for that challenge and not make a general appearance.

If you hire an attorney, the attorney is an officer of the court whose first responsibility is to the court and not his client, yourself. Hiring an attorney or allowing the court to appoint one for you constitutes signing over your power of attorney to the person representing you in the matter, and is an immediate waiver of personam jurisdiction. When seeking remedy in such a matter, in order to be heard in your own proper person as a flesh-and-blood man (or woman) you must address the court as yourself.  To learn more about what a special appearance entails, see our article What Is A Special Appearance In Court.

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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.