What Is A Special Appearance in Court?

If you ever find yourself attending court in order to defend against a traffic citation, there is only one way you can do so if you wish to prevail in the matter using the common law.  But before we disclose that way, let’s become clear about what it means to enter a court in response to a legal matter, and most especially a state or municipal court. Any time a person consents to entering a statutory court they are said to be making an “appearance” and thus “responding ” to a matter. A response to a matter is an indication of having consented to being recognized as a party to the action, thereby resulting in personam jurisdiction. However, if you know that you are not a party to the action, that the other party has demonstrated no authority over you with regard to the matter at hand and is attempting to lure you into a fraudulent matter, then you must take care in how you approach the court in order to seek remedy. 

What fraudulent matter are we speaking about? The fraudulent matter of a victimless traffic ticket. Unless there is an actual injured party, you would be well advised to avoid any matter that does not lawfully concern you by asserting your common law right of avoidance. Otherwise, your chances of prevailing in the matter in someone else’s private court have just slipped to ZERO!

Before we get into specifics about how to properly approach the court in the matter of a traffic citation, let’s look at how Black’s Law Dictionary, 4th Edition, defines the word “appearance.”

appearance - In practice. A coming into court as party to a suit, whether as plaintiff or defendant.  Stephens v. Ringling, 102 S.C. 333, 86 S.E. 683, 685.  The formal proceeding by which a defendant submits himself to the jurisdiction of the court.  Flint v. Comly, 95 Me. 251, 49 A. 1044. The voluntary submission to a court’s jurisdiction.  Pacilio v. Scarpati, 300 N.Y.S. 473, 478, 165 Misc. 586.

Do you notice anything distinctive in the latter two definitions and how that distinction may be a key element to a matter?  If not, don’t feel bad. If you are unfamiliar with the procedures of court, then it’s not something that you would necessarily be able to spot without some additional knowledge and background.  The two distinctive words that should have stood out to you are “submits” or “submission” and “jurisdiction.”

Do you realize what it means to submit oneself to the jurisdiction of a court? If not, then stop and pay close attention to what follows.  If a matter comes before a court in which you, as a defendant or accused, have no part in, and you submit yourself to that court’s jurisdiction before determining whether or not it has any authority over your person, you are waiving any rights you may have should you later determine that the court, in fact, did not have jurisdiction over you in the matter.

Why is this important? Because if jurisdiction of a court is never established over a person on the record, then anything it may do subsequent to that — like make a determination of innocence or guilt in a case — may be voided for lack of jurisdiction! In other words, if a plaintiff never proves proper authority for jurisdiction on the record and yet the court proceeds with the action, that court’s findings can be found to be invalidated on appeal to a higher court.

Let’s turn again to Black’s Law Dictionary, 4th Edition, for a further look at the types of appearances that can be made:

An appearance may be either general or special; the former is a simple and unqualified or unrestricted submission to the jurisdiction of the court, the latter a submission to the jurisdiction for some specific purpose only, not for all the purposes of the suit. Louisville & N. R. Co. v. Industrial Board of Illinois, 282 Ill. 136, 118 N.E. 483, 485. A special appearance is for the purpose of testing the sufficiency of service or the jurisdiction of the court; a general appearance is made where the defendant waives defects of service and submits to the jurisdiction. State v. Huller, 23 N.M. 306, 168 P. 528, 534, 1 A.L.R. 170.

Take particular notice of the second of the two definitions above outlining the difference between a general appearance and a special appearance. In a general appearance, the accused is waiving any defects of service while at the same time submitting unconditionally to the jurisdiction. Defects of service refers to the service of a warrant or indictment in the case of a criminal action or service of civil suit in the case of a civil action. What most people are not aware of is that the complaint (the traffic ticket) issued by the law enforcement officer in a victimless traffic violation does not qualify as proper service of process at law. A plaintiff, in this case the officer representing a state or municipality, cannot lawfully serve his own process. Legal process must be served by a disinterested third party. This breach of court protocol amounts to a defect of service, thus voiding jurisdiction.

Additionally, though, the complaint issued is not in itself a proper warrant or indictment, nor can it be classified as a civil action. It is not even a “charging instument,” which is a necessary element the court needs to have in any criminal indictment. If anything, the officer can be said only to be operating under “color of law” or outside of black letter law of the common law that might apply should an injury to property or person have occurred. And yet, if a party raises no objection to this defect of process, the case can move forward. So, raising a jurisdiction question is a serious matter when attempting to get to the bottom of things. It is most likely that the officer who brings a “color of law” matter before a state or municipal court is operating in an area of law call private law as opposed to public law. (See our article on What Is Public Law and Private Law for an explanation of this difference.)

In some jurisdictions, there are other designations that are accepted as analogous to the term special appearance. On the federal level, when a person wants to raise an objection to jurisdiction, he does so under what is called a “restricted appearance” according to Rule E (8) of the Federal Rules of Civil Procedure. To confuse matters even more, there are states that will recognize a difference between what is called a “limited” appearance as opposed to a “special” appearance. In this case, a limited appearance should not be confused or equated with a special appearance. They are two different types of appearances meant to address different legal questions.

These different designations are mentioned here in order to inform the reader not to confuse them. For reasons of our purposes here, it is recommended that you use the term special appearance when having to announce your attendance in a court to challenge the plaintiff’s jurisdiction or authority to bring an action. When you appear solely for the purpose of raising the jurisdictional question by special appearance, the use of this designation does not subject you to the consequences of a general appearance nor does it waive your right to seek a common law remedy to the current matter of a victimless traffic citation. It, in fact, is your remedy with regard to that matter in the traffic court.

Please Note:  This article is best utilized in conjunction with its sister article Special Appearance in Court And Your Right Of Avoidance.  You are encouraged to read both articles in order to obtain a more thorough understanding of these concepts and how you can successfully use them.

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.

The initial jurisdiction that you are challenging in traffic court is called personam jurisdiction. That means jurisdiction over you in the capacity of your person. It is one of two jurisdictions that can be challenged, the other of which is known as subject matter jurisdiction. A court must obtain both types of jurisdiction in order to hear a matter before it. And that jurisdiction must be provided by the agreement of both parties involved. In order to understand the overwhelming importance of this concept of jurisdiction and where your remedy lies, please feel free to read our article The Two Faces of Jurisdiction.

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.