The Two Faces of Jurisdiction
You Need To Know To Assert Remedy
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 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
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,
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
elements that constitute jurisdiction. Those two elements are
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
before the matter can proceed
forward. A mere unsworn to accusation or complaint is not hard evidence
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
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
. 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
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
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
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 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
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
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
If a court obtains subject matter jurisdiction but fails to obtain in
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
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
the parties must also have experienced due process
having had notice and
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
, 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
However, obtaining in
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,
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
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
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
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
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
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
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
special appearance entails, see our article What
Is A Special Appearance In Court
If you would like to learn more about concepts of law so you
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!
laws sometimes sleep,
but never die.