Posted by Paul Andrew Mitchell, B.A., M.S. on July 16, 1998 at 18:12:52:
In Reply to: Re: Motion to dismiss Traffic Ticket on US Constitutional grounds posted by Dot on July 13, 1998 at 10:23:15:
: My husband appeared in court to debate whether the court had jurisdiction over him. The judge then stated that my husband was: "granted permission to file legal motion to dismiss on US Constitutional grounds." This is to be filed on 7/15 and according to the "Court Order:" the "State must/may reply by
: 7/29/98. Legal hearing set for time/date given above" which is 8/4.
: Perhaps his mandate sounds great on the surface, however what I have studied is that a plea will automatically bring you into their jurisdiction and also a "general" appearance (he made this in error of not knowing the legal term of appearance) as opposed to "special" appearance. -- Therefore, I have a suspicion that this motion to dismiss has some undercurrents. Therefore, instead of doing the motion to dismiss, we did a Notice to Withdraw Motion to Dismiss --- That the objection was that the court jumped forward without the matter of jurisdiction ever being determined -- Bypassed his right to counsel and due process.
A Motion to Dismiss for Lack of Jurisdiction
is normally considered a special appearance,
because it is a plea to the original jurisdiction
of the court. It is NOT a "general appearance."
If you are still in doubt about your position
at present, refile a clerical update, nunc pro
tunc, and put "In Propria Persona" in the
upper left-hand area of the first page,
right below your name. Confer at the
definition of "In Propria Persona" in Black's
Law Dictionary. Also, make it clear that
the one appearing is making a special
appearance, in the very first paragraph,
COMES NOW John Q. Doe, Citizen of Texas state,
expressly NOT a citizen of the United States,
appearing specially and NOT generally, to submit
certain clerical updates to this honorable Court,
and to provide formal Notice to all interested
party(s) of same.
The following clerical updates are made nunc pro
tunc, back to the date of original filing, of the
pleading(s) now modified as follows:
[enumerate changes here]
/s/ John Q. Doe, Sui Juris
All courts have enough power to determine,
on their own, or on motion, whether or not they
have original jurisdiction to proceed. You do
NOT grant jurisdiction by appearing to litigate
Notice also that federal court complaints MUST
specify the Act of Congress which grants
original jurisdiction to that court, because
federal court jurisdiction is presumed NOT to
exist unless positive, affirmative proof is
shown in the initial pleadings. The opposite
is generally the case in state courts, however.
Traffic courts are usually administrative
tribunals, with administrative law judges
presiding, who are there to enforce the
contract consummated between the State and
the "driver," when that "driver" applied for
a "driver's" license and was granted the
privilege(s) for which that driver applied.
What these traffic courts are generally NOT
geared to discuss, is the State's deliberate
failure to disclose the legal interests which
that State obtained, when the manufacturer's
statement of origin ("MSO") for your car/truck
was conveyed from the first seller (e.g. the
new car dealer) to that State's Department
of Transportation. The way to smoke out this
MSO is to bring a Quiet Title action in the
court of competent jurisdiction; this, however,
is generally NOT the traffic court. Confer
in your State's constitution to determine
which court(s) have original jurisdiction
over quiet title proceedings.
You can either move the traffic court to
transfer your case to the quiet title court,
or start the quiet title action in parallel,
with a request that the traffic court "stay"
its proceeding, pending the outcome of the
quiet title proceeding. If the traffic
court denies either motion, you are in a
great position to request leave to appeal
such an interlocutory order. You must carry
the burden of proving that the State committed
fraud upon you, by unlawfully conveying the
car's MSO to the DOT. This is done by
attacking the constitutionality of the statute(s)
which so direct the dealers in your State.
We submitted a NOTICE AND DEMAND to the Texas
Attorney General, for all lawful constitutional
and statutory authorities compelling dealers
to convey the MSO to the DOT; his silence has
allowed us to estop the State of Texas on this
point, namely, THERE IS NO LAWFUL AUTHORITY
TO CONVEY THE MSO FROM THE FIRST SELLER TO
THE DEPARTMENT OF TRANSPORTATION.
In any event, you MUST deal with the
contract which the driver entered when s/he
"applied" for the issuance of the license
(read "permission to exercise a privilege").
Be prepared to rescind that "license" in
writing and filed in the court record;
otherwise, the existence of an apparently
valid driver's license, will give the court
all it needs to establish jurisdiction over
the contract which it is convened to enforce.
The rule here is this: equity is brutal.
If there is a contract, either express or
implied in fact, the court has power to
enforce that contract's terms, whatever
those terms might be. But, a fraudulent
contract can be voided ab initio, and all
Citizens enjoy the Right of Avoidance,
namely, the Right to ignore a "contract"
which was consummated by fraud. See the major
affirmative defenses in your State Civil Code
(e.g. fraud, duress, undue influence, mistake,
etc.) for statutory authority supporting the
Right of Avoidance.
/s/ Paul Andrew Mitchell, B.A., M.S.
Counselor at Law, Federal Witness,
Private Attorney General, and Candidate
for the U.S. House of Representatives
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