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.