What Is A Demurrer? 

How Does It Relate To A
Victimless Traffic Violation

In times past, a frivolous traffic ticket (or any other frivolous action before a court) could be handled with what is known as a demurrer. Before changes were made to the old common law Forms of Action procedures in American government courts, there used to be such a thing known as a “demurrer in pleading.” Using this legal device, a party to a frivolous lawsuit could challenge the sufficiency of pleadings made by the opposing party by filing a demurrer before any pleading to the complaint took place. In the case of a victimless traffic ticket, this would be a challenge to the complaint issued by a code enforcement officer.

Generally speaking, the “demurrer” is a legal pleading filed by a party defending against claims or defenses in a lawsuit. The demurrer challenges whether a legal cause of action exists for the facts as stated by the complaining party. This is referred to as challenging the "legal sufficiency" of a claim or a cause of action. A demurrer would typically be filed at the beginning of a case, before any answer to a complaint could be solicited. It therefore would take place before any arraignment proceeding could be held asking for a plea to a complaint, and would be asking the court for a ruling as to the sufficiency of the demurrer.

For example, if a party were alleged to have been traveling 50 mph in a posted 40 mph speed limit zone, the party being complained against may not challenge that fact. But he may wish to know, before pleading to the complaint, who, if anyone, was hurt or injured [the STATE is alleging that the party harmed or injured the STATE, which is a legal fiction and cannot be harmed] by the action, and if so, could he or she please stand before the court and make a claim that they were hurt by the party travelling 50 mph in a 40 mph zone. If no one was harmed or injured, then there is no valid claim being alleged! Being able to file a demurrer in pleading could have brought out this fault in the complainant’s  pleadings before the matter was allowed to proceed, and thus saved the court time and energy in having to sit through a frivolous complaint!

At common law, a demurrer was the most common pleading by which a defendant could challenge the legal validity of a claim or complaint in criminal or civil cases. However today this form of pleading has been abolished in many jurisdictions, including the federal court system (though many large jurisdictions, including California retain the demurrer). In criminal cases, a demurrer was considered a common law due process right to be heard and decided before an alleged 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.

A demurrer is not a challenge of the ultimate merits of a case or claim. It is merely asking the court to rule on the sufficiency of the plaintiff’s pleadings before the matter can go forward. When ruling on a demurrer, a judge is required by law to assume as true facts alleged in the complaint, even if those facts would later be challenged. Historically, however, a party filing a demurrer often had to admit the facts in the complaint and waive the right to later challenge those facts. Yet that would not be a problem in a matter where there was a fault found in subject matter jurisdiction, which can be challenged at any time, such as the example given above in a victimless traffic violation.

Technically a “demurrer” is not a motion before a court, but rather a challenge as of right. In other words, has the complaining party proven legal grounds therefore giving him a right upon which to enter a complaint for which relief may be granted. One does not file a motion for demurrer nor move the court to demur. Rather, a demurrer asks the court to dismiss an action for want of right. In lay terms, if a judge sustains a demurrer, he or she is saying that the law does not recognize a legal claim or right to make a claim based on the facts stated by the complaining party.

In the case of a frivolous traffic ticket, a demurrer would attack a complaint as missing one or more required elements of a claim. For instance, a negligence cause of action must allege one of four elements. It must allege that 1) the defendant owed a duty to the plaintiff; 2) the defendant breached the duty; 3) the breach caused plaintiff injury; and 4) the plaintiff suffered damage. A defendant could demur by saying that the complaint failed to plead one or more of these essential elements.

Using the above example of exceeding a speed limit and applying it to these four elements, who would the defendant owe a duty to which might be breached? The STATE? But the STATE is legally a fiction (it does not exist in point of fact) and therefore cannot be harmed or owed a duty which might be breached! If it cannot be harmed (by reason of its non-existence), that means it cannot be injured or suffer damage if someone exceeds the speed limit. Thus, all four of the elements for a negligent cause of action have been defeated, and the demurrer by all rights should be granted!

As far as we are concerned – in conjunction with the method of relief asserted in the Common Law Remedy To Beat Traffic Tickets ebook which is provided to subscribers on this website – a glaring error precluding the procedural use of a demurrer would be the fact that in order to use a demurrer (if it were even allowed in a traffic court) one would have to grant entrance to the complaint and submit (or consent) to being characterized as “a party” to the action. When you read the ebook, you will understand the weighty significance of this reference as it would defeat the main objection described in the ebook as remedy.

One would have to be very well versed in law in order successfully to use a demurrer in a traffic ticket matter as these courts are often disposed to ignoring points of law once a person has submitted himself to their jurisdiction. This is because, for the most part, these courts are adjudicating private law while posing as a public court.  For more information about the significance of the differences between public law and private law, please read our two articles on What Is Public Law and Private Law, Parts One and Two.

While in many states the demurrer has been abolished as a formal type of answer to a complaint, the same objection against the plaintiff’s cause of action can be made by “motion to dismiss” the plaintiff’s action on the ground that it has “failed to state a claim on which relief may be granted.” The only problem with this approach is, once again, in the instance of a judge acting on his own discretion, the judge could be acting in “conflict of interest” (as an employee of the State, which has a financial revenue interest in the outcome of the matter) rather than as an impartial arbiter. This is what quite often occurs when a party enters the foreign jurisdiction of the State (or municipality) thinking he has a winning objection to the cause of action only to learn that the judge fails to recuse himself while simultaneously railroading the case through on the government’s behalf and benefit.

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.

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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.