The Police Powers Are Subject to Qualified Immunity

11 Saturday Feb 2012

Tags

agents immunity, Anderson v. Creighton, Baptiste v. J.C.Penney Co, Beier v. City of Lewiston, Brecht v. Abrahamson, Carey v. Nevada Gaming Control Board, Ceballos v. Garcetti, Chein v. Shumsky, Chia v. Cambra, City of Canton v. Harris, Clark v. Murphy, Cummings v. City of Akron, Devereaux v. Abbey, Early v. Packer, federal agents immunity, Graham v. Connor, Gray v. Klauser, Harlow v. Fitzgerald, Harris v. Carter, Hecht Co. v. Bowles, Henry v. County of Shasta, Hope v. Pelzer, Lee v. Gregory, Little v. Windermere Relocation Inc., Lockyer v. Andrade, Malley v. Briggs, Monell v. New York City Dept. of Social Services, Packer v. Hill, police immunity, Police subject to qualified immunity, Porter v. Warner Holding Co, Powell v. Galaza, Price v. Vincent, Riley v. Payne, Robinson v. Solano County, Sanders v. Lamarque, Saucier v. Katz, Shaw v. Terhune, sheriff officers immunity, sovereign documents, Stevens v. Rose, Taylor v. Maddox, Torres v. Prunty, U.S. v. Oakland Cannabis Buyers' Cooperative, Van Lynn v. Farmon, Van Tran v. Lindsay, Weinberger v. Romera-Barcelo, Williams v. Taylor, Wilson v. Layne

(For Austin)

THE POLICE POWERS ARE SUBJECT TO QUALIFIED IMMUNITY

Clearly established. QUALIFIED IMMUNITY

Davis v. Scherer, No. 03-3259 (6th Cir. 07/22/2005) (In a civil rights action pursuant to 42 U.S.C. section 1983, the grant of summary judgment to defendant-police officers is reversed where their seizure of plaintiff’s person and entry into his home were unsupported by a warrant, consent or exigent circumstances.);Cf. Harlow v. Fitzgerald,
457 U.S. 800. Pp. 190-197 (1982); See also: Williams v. Taylor,
529 U.S. 362, 404 (2000); Early v. Packer, 537 U.S. 3, 8 (2002); 28 U.S.C. § 2254(d); Cf. Existence or nonexistence; Mandatory v. Discretional; Most favorable; Qualified immunity;

Cummings v. City of Akron, No. 03-3259 (6th Cir. 07/22/2005) (In a civil rights action pursuant to 42 U.S.C. section 1983, the grant of summary judgment to defendant-police officers is reversed where their seizure of plaintiff’s person and entry into his home were unsupported by a warrant, consent or exigent circumstances.);

Taylor v. Maddox, No. 02-55560 (9th Cir. 05/10/2004) (Principles of comity and federalism counsel against substituting our judgment for that of the state courts, a deference that is embodied in the requirements of the federal habeas statute, as amended by AEDPA. When it comes to state-court factual findings, AEDPA has two separate provisions. First, section 2254(d)(2) authorizes federal courts to grant habeas relief in cases where the state-court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Or, to put it conversely, a federal court may not second-guess a state court’s fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable. Cf. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“The ‘unreasonable application’ clause requires the state court decision to be more than incorrect or erroneous. The state court’s application of clearly established law must be objectively unreasonable.”); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000) (same standard of unreasonableness applies under subsections (d)(1) and (d)(2)). Second, section 2254(e)(1) provides that “a determination of a factual issue made by a State court shall be presumed to be correct,” and that this presumption of correctness may be rebutted only by “clear and convincing evidence.”);

Lee v. Gregory,No. 02-57132 (9th Cir. 04/07/2004) (Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The qualified immunity inquiry involves two sequential questions. First: “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second: “if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step, is to ask whether the right was clearly established . . . in light of the specific context of the case.” Id.);

Ceballos v. Garcetti,No. 02-55418 (9th Cir. 03/22/2004) (For purposes of summary judgment, qualified immunity was not available to the individual defendants because the law was clearly established that plaintiff’s speech, alleging wrongdoing by a deputy sheriff, addressed a matter of public concern and that his interest in the speech outweighed his employer’s interest in avoiding inefficiency and disruption.);

Sanders v. Lamarque,No. 02-56893 (9th Cir. 02/03/2004) (Under § 2254(d)(1)’s “unreasonable application” clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.’ Rather, that application must be objectively unreasonable.” Lockyer v. Andrade, ___ U.S. ___, 123 S. Ct. 1166, 1175 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)).

Beier v. City of Lewiston,No. 02-35516 (9th Cir. 01/14/2004) (” ‘[C]learly established’ for purposes of qualified immunity means that ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Wilson v. Layne, 526 U.S. 603, 614-15 (1999) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson, 483 U.S. at 640) (internal quotation marks and citations omitted). The “salient question” is whether the state of the law in June of 1997 gave the officers fair warning that their actions were unconstitutional. See Hope, 536 U.S. at 741; see also Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001) (en banc) (“[W]hat is required is that government officials have ‘fair and clear warning’ that their conduct is unlawful.”) (citation omitted).);

Riley v. Payne,No. 03-35054 (9th Cir. 12/23/2003) (Riley’s petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA’s constrained review permits a federal court to grant habeas relief affecting a state prisoner only when a state court’s ruling: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A state court’s decision is “contrary to” federal law if it: (1) “applies a rule that contradicts the governing law” set forth in Supreme Court case authority, or (2) applies controlling law to a set of facts that is “materially indistinguishable” from a Supreme Court decision but nevertheless reaches a different result. Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003). A state court’s decision is an “unreasonable application” of federal law only if it is “objectively unreasonable,” which “requires the state court decision to be more than incorrect or erroneous.” Id. at 1174.);

Shaw v. Terhune, No. 02-16829 (9th Cir. 12/22/2003) (Shaw’s petition for habeas corpus is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). Under AEDPA, we may only grant Shaw’s petition if the state court’s rejection of his due process claim was (1) “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court;” or (2) an unreasonable interpretation of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1); Van Tran v. Lindsay, 212 F.3d 1143, 1154 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003) (“[W]e may not, of course, reverse a state court’s decision simply because it is inconsistent with a rule established by a Ninth Circuit case.”). The phrase “clearly established federal law” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000);

Van Lynn v. Farmon, No. 03-15221 (9th Cir. 10/17/2003) (We review de novo the district court’s decision to grant or deny a petition for writ of habeas corpus. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Sept. 8, 2003) (No. 03-372). Pursuant to 28 U.S.C. § 2254(d), we review the state court’s decision to determine whether the state court’s adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established” Supreme Court case law or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Here, there is no contention that the state-court decision resulted in an unreasonable determination of the facts. Thus, we consider whether the state-court decision resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court case law. “Contrary to” and “unreasonable application of” have “distinct meanings” as used in § 2254(d)(1). Clark, 331 F.3d at 1067; see also Williams v. Taylor, 529 U.S. 362, 404 (2000). A decision is “contrary to” clearly established Supreme Court case law “if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result.” Clark, 331 F.3d at 1067. A state-court decision is also “contrary to” Supreme Court case law if the state court ” ‘applies a rule that contradicts the governing law set forth in’ ” Supreme Court cases. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (quoting Williams, 529 U.S. at 405). In contrast, “[a] state court’s decision involves an unreasonable application of federal law if ‘the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner’s case.’ ” Clark, 331 F.3d at 1067 (quoting Williams, 529 U.S. at 413).

Powell v. Galaza, No. 01-15195 (9th Cir. 05/06/2003) (First, a state court decision is “contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Williams v. Taylor, supra, at 405-406; see also Bell v. Cone, supra, at 694. Lockyer v. Andrade, ___ U.S. ___, 123 S. Ct. 1166, 1173 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000));

U.S. v. Oakland Cannabis Buyers’ Cooperative, No. 00-151 (U.S.S.C. 05/14/2001) (As an initial matter, the Cooperative is correct that, when district courts are properly acting as courts of equity, they have discretion unless a statute clearly provides otherwise. For “several hundred years,” courts of equity have enjoyed “sound discretion” to consider the “necessities of the public interest” when fashioning injunctive relief. Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944). See also id., at 329 (“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it”); Weinberger v. Romera-Barcelo, 456 U.S. 305, 312 (1982) (“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction”). Such discretion is displaced only by a “clear and valid legislative command.” Porter v. Warner Holding Co, 328 U.S. 395, 398 (1946). See also Romero-Barcelo, supra, at 313 (“Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles”).

Graham v. Connor,490 U.S. 386 (1989) (All claims that law enforcement officials have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard. Pp. 392-399. [490 U.S. 386, 387]);

Harlow v. Fitzgerald ,457 U.S. 800. Pp. 190-197 (1982) (Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily [457 U.S. 800, 819] should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.);

Wilson v. Layne, 526 U.S. 603 (05/24/1999) aff’d. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001) (Petitioners’ Fourth Amendment right was not clearly established at the time of the search. “Clearly established” for qualified immunity purposes means that the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. His very action need not previously have been held unlawful, but in the light of pre-existing law its unlawfulness must be apparent. E.g., Anderson v. Creighton, 483 U.S. 635, 640 (1987);

Henry v. County of Shasta, No. 95-16704, D.C. No. CV-93-02038-GEB (9th Cir. 03/02/1998) (A municipal defendant may only be held liable under S 1983 if the unlawful actions of its employees or agents were taken pursuant to that defendant’s policies or customs, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978), including a policy of being deliberately indifferent to the rights of its inhabitants, City of Canton v. Harris, 489 U.S. 378, 389 (1989).);

Baptiste v. J.C.Penney Co.,147 F.3d 1252, 1255 (10th Cir. 1998) (“Qualified immunity shields government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Cf. Smith v. Oklahoma Department of Human Services, No. 00-6046 (D.C. No. 99-CV-615) (W.D. Okla. 2000); Carey v. Nevada Gaming Control Board, No. 00-16649 (9th Cir. 02/04/2002)

Gray v. Klauser, No. 00-35732 (9th Cir. 02/27/2002) (Under 28 U.S.C. § 2254(d)(1), a federal court may grant an application for a writ of habeas corpus for a claim adjudicated in a adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The Supreme Court has held that the clauses “contrary to” and “unreasonable application of” have independent meaning. Penry v. Johnson , 121 S.Ct. 1910, 1918 (2001); Williams v. Taylor, 529 U.S. 362, 404 (2000); see Packer v. Hill, 291 F.3d 569, 1101 (9th Cir. 2002). The “contrary to” clause applies, inter alia, when a state “applies a rule that contradicts the governing law set forth” in the Supreme Court’s cases; the “unreasonable application of” clause applies when a state identifies the correct legal standard but applies it unreasonably. Penry, 121 S.Ct. at 1918 (quoting Williams, 529 U.S. at 404). Because the Idaho state courts did not apply the pertinent constitutional rules established by the Supreme Court, discussed below, they applied an incorrect legal standard. Thus, the “contrary to” clause governs in this case, and the only questions remaining are (1) whether there was constitutional error; and (2) “whether the error had a substantial or injurious effect on the verdict.” Packer, 277 F.3d at 1102 (citing Brecht v. Abrahamson , 507 U.S. 619, 637(1993).

Harris v. Carter, No. 02-3114 (6th Cir. 07/29/2003) (The parties do not dispute the reasonableness of the facts determined in the state court proceedings. Thus, to be entitled to relief under § 2254(d), this Court must find that the decision of the Ohio Court of Appeals was either contrary to, or an unreasonable application of, the Supreme Court’s clearly established precedents. Price v. Vincent,123 S.Ct. 1848, 1852-53 (2003). A state court decision is contrary to clearly established federal law “if the state court arrives at a conclusion opposite that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision is an unreasonable application of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The Supreme Court has cautioned that a “federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.);

Robinson v. Solano County, No. 99-15225 (9th Cir. 02/04/2002) (A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? . . . In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question of whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case. Katz, 121 S.Ct. at 2156.);

Stevens v. Rose, No. 00-15840 (9th Cir. 08/02/2002) (This appeal relates solely to Hanson’s qualified immunity defense with respect to the alleged Fourth Amendment violation. Establishing qualified immunity requires that the official’s conduct be objectively reasonable “as measured by reference to clearly established law.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court recently encapsulated this objective approach into a two-step test. The threshold question that the court must answer is whether the facts, taken in the light most favorable to the plaintiff, “show the officer’s conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001). If this initial question is answered affirmatively, the court must address whether “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987));

Chein v. Shumsky, No. 01-56320 (9th Cir. 03/14/2003) (We have recently interpreted Bronston to preclude a perjury conviction if the allegedly perjurious answer is in response to a question that is “excessively vague or fundamentally ambiguous.” United States v. Culliton , 300 F.3d 1139, 1141 (9th Cir. 2002) (citations and internal quotation marks omitted); see Chia v. Cambra , 281 F.3d 1032, 1037 (9th Cir. 2002) (stating that Ninth Circuit case law may be persuasive authority for determining what Supreme Court precedent is clearly established). In contrast, “[i]f we determine that the questions were only arguably ambiguous or not ambiguous at all,” the perjury determination must be made by the jury. Culliton, 300 F.3d at 1141 (internal quotation marks omitted).);

Cf. ORCP 47(C); [Or Laws 1995, ch. 618, § 5]; Jones v. General Motors Corp., 325 Or 404, 420,939 P2d 608 (1997); Turnbow v. K.E. Enterprises, Inc., 155 Or App 59, 65, 962 P2d 764 (1998); McCulloch v. Price Waterhouse LLP, 157 Or App 237, 252, 971 P2d 414 (1998), rev den 328 Or 365 (1999); Kraemer v. Harding, Et alii, 329 Or 47, 985 P2d 788 (1999); Vandermay v. Paul D. Clayton, CC 92-2104; CA A91235; SC S44717 (Or. 06/11/1999); Richardson v. Guardian Life Ins. Co., 161 Or App 615, 984 P2d 917, rev den 329 Or 553 (1999); Glen Slate v. Saxon, Marquoit, Bertoni & Todd, 9609-06865; CA A99631 (Or. 03/08/2000); Nike v. Northwestern Pacific Indemnity Co., C96-0209CV; CA A97847 (Or. 03/22/2000); Swenson v. Legacy Health System, 169 Or App 546, 9 P3d 145 (2000); Kluge v. Oregon State Bar, 172 Or App 452, 19 P3d 938 (2001); Glenn K. Jackson, Inc. v. Roe, No 00-15614 (9th Cir. 12/11/2001); Moore v. California Inst. of Tech. Jet Propulsion Lab, No. 00-55958 (9th Cir. 01/04/2002); Little v. Windermere Relocation Inc., No. 99-35668 (9th Cir. 01/23/2002)

Court (Certification – Intervention By Cert. Of The Statute By Supreme Court

01 Wednesday Feb 2012

Posted by eowyndbh in Uncategorized

≈ 1 Comment

Tags

28 USC section 2403, absence of law is remedy, Ca.R.C.P. Rule 29.5, California Codes 387, California Rules of Civil Procedure, certification of statute, challenge the validity of law, declaritory judgments, intervention, law certification, Oregon Chapter 28, Questions of law, Red Cross Line v. Atlantic Fruit Company, Rule 24, Rules of Civil Procedure Rule 24, sovereign documents, Thorington v. Smith, Voon Hoffman v. City of Quincy

(For Austin)

Intervention – Challenge the Validity of the
Law by Demanding Certification.

According to Legal Research, “Every state probably has somewhere in its codes the process to have state law certified as constitutional”. See references below for Federal, Florida, California and Oregon laws on the subject of Intervention and such challenges.

There is a mechanism in the law that allows you to make a constitutional challenge through the back door when involved in the courts. I don’t believe you can ever successfully argue in the administrative process, as it is a traverse into a (private law) trap by fraud in the inducement. The powers that be made a very big mistake when they allowed, even encouraged the belief that the constitution is alive and well. The attorney general of every state can be subpoenaed into a courtroom to testify to the constitutionality any act or omission you are charged with violating. Every codified law must also be certified as constitutional by the supreme court of the state before it can be implemented. (Implementing regulations displayed within [pairs of brackets] make it clear the said regulations have been omitted and thereby, the act or statute cannot be unilaterally imposed.) Employing this understanding defeats every act or statute presented for acceptance. Generally all cases will be dismissed (or abandoned) rather than have the fraud exposed. This is particularly true when addressing bonds being issued in the defendants name by the clerk of the court that go to extortion of the defendants credit for the purpose to monetize the said bonds.

THE REMEDY:

‘But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are:

(1) that its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and

(2) that while it exists it must necessarily be [229 U.S.416, 429] obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered, also, by civil authority, supported more or less directly by military force.’
– Thorington v. Smith, 8 Wall. 1, 9, 19 L. ed. 361, 363.

I spent all day yesterday researching the above case. I have come to the conclusion that we are indeed under the jurisdiction of a military authority, administered by civil authority, and the courts run America. It goes all the way back to before the Revolution. International treaties, codified into law, are superior to domestic law, (as stated by the Supreme Court) starting at the time of the Revolution. (No transfer of American soil from the Crown) The colonies were British (Crown) corporations. Washington D.C. became the Mother Corp. and the colonies became her Inc’s. Peace was never declared after the civil war, and we are still functioning under the war powers. This explains why we don’t win in the courts. The national Constitution has been suspended. The states, as Inc’s, also had their Constitutions suspended. We lost our law, which is supposed to be certified as constitutional before it can be implemented. NO REMEDY. This explains the Rule of Necessity. You cannot claim to be a citizen of a State or the U.S. because neither exist as de jure governments, they are governments de facto.

However, since our de facto governments won’t tell us this, and we are still functioning under the belief that the constitutions are de jure, I still think we can challenge under the “absence of law is the remedy” theory. Just exactly what is this theory? As I said before, all law has to be certified as constitutional by the state supreme court before it can be implemented.. When charged with violating a law, one should subpoena the certification of the act by the state supreme court. One should also subpoena the Attorney General of the state to testify to the constitutionality of the act.

Because the law will not be certified as constitutional, and the state Attorney will not testify to the constitutionality of the act, nothing remains but for the court to dismiss your case. I’ve used this technique in a firearms violation case in which the defendant, if found guilty, would have been given 40 years in jail. Instead, on the day of his trial, he was called to the bench and told his case has been dismissed.

I believe that all judges, once they reach the appellate level are aware of the above facts. The more arrogant the judge, the more he knows about the government being de facto. The law schools are private, so the lawyers are educated to work for the de facto system, by making sure that the will of the state is imposed upon us. There was a deal struck that, if any person who doesn’t have a lawyer to bring a case before the courts, and if this person proves the fraud, and speaks the truth about the fraud, the courts are compelled to not allow the case to be cited or published anywhere. The courts cannot afford to have the case freely available in the public archives. This would be evidence of the fraud. That is why you can’t hire an attorney. An attorney is compelled to uphold the fraud.

As I said before, all law has to be certified as constitutional by the state supreme court before it can be implemented. What is the source of this proposition? I think the war powers condition is cumulative since the civil war. I don’t think WWII ever ended in the States. The judiciary act of 1948 was a wartime act. Peace did not come with Germany and Japan until after Korea was started which is still going on. UN was founded and entered into during WWII. The NC statutes read as if WWII war powers are still in effect. In a civil case, would this not also apply to subpoena the certification of constitutionality?

All your questions and statements are irrelevant. I can see that it is difficult for you to accept so simple a truth. If you know the Constitution for the United States and the Constitutions for all the several states have been suspended, you should know you have no constitutional protection in any court in any district in this country. If we are supposed to have constitutional protections and they ceased to exist, we can only use the fact they ceased to exist to defend ourselves. It doesn’t matter if the court is using admiralty, law merchant, equity, or administrative. The government has never come out and made it a statement of fact that we are a de facto nation, with de facto courts, with judges sitting under the rule of necessity, and that we have no remedy in the courts, have they? Three things are needed to be classified as a nation under international law:

1. de jure money
2. de jure law
3. a de jure army

We have none of these. We are a nation de facto, functioning under martial law with a de facto civil system enforced through police power. Is this too simple for you to understand? Your only hope for remedy is to bring this fact into the courtroom and have the court either confirm your claim or dismiss. They will not confirm the facts, for to do so would cause the de facto system to fall apart. Their only option is to dismiss…

Ladies and Gentlemen: ABSENCE OF LAW IS THE REMEDY.

How many times have we been told by a Judge that the Constitution does not exist in his courtroom? He was telling us something very important but we weren’t listening… You have to empty your mind and look at “no law = no remedy.” If there is no remedy there can be no charges of omission or violating a law crafted by a de facto legislature. It is well settled that there MUST be a remedy for every violation of law. YOU CAN’T find one! The reason is, because no remedy exists. BUT…..how often have you challenged the law you are accused of violating as being certified as constitutional by the supreme court of your state? I bet you have never done this. How many times have you subpoenaed the Attorney General of your state to testify to the constitutionality of the act you are charged with violating? NEVER?

ABSENCE OF REMEDY:

As a researcher for many years, it becomes apparent “absence of law is the remedy.” No law, no violation or crime. The case below says “without the remedy the contract may, indeed, in the sense of the law, be said not to exist.” I think this is important. In tort law, a contract can’t necessarily stipulate to a remedy other than jurisdiction and who will pay attorney fees.

Where is the law?

Fifty years ago this Court pointed out the essential relationship between rights and remedies.

“Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution against invasion. The obligation of a contract ‘is the law which binds the parties to perform their agreement.'”
Von Hoffman v. City of Quincy, 4 Wall. 535, 552.

RED CROSS LINE vs. ATLANTIC FRUIT COMPANY. No. 112. SUPREME COURT OF THE UNITED STATES 264 U.S. 109, 68 L. Ed. 582, 44 S. Ct. 274 February 18, 1924 Decided

—————————- REFERENCES —————————

28 USC> PART VI > CHAPTER 161 > § 2403. Intervention by United States or a State; constitutional question

(a) In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

(b) In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

Federal Rules of Civil Procedure

IV. PARTIES > Rule 24. Intervention

(a) Intervention of Right.
Upon timely application anyone shall be pemitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

(b) Permissive Intervention.
Upon timely application anyone may be permitted to intervene in an action:
(1) when a statute of the United States confers a conditional right to intervene; or
(2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

(c) Procedure.
A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefore and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C.,§ 2403. When the constitutionality of any statute of a State affecting the public interest is drawn in question in any action in which that State or any agency, officer, or employee thereof is not a party, the court shall notify the attorney general of the State as provided in Title 28, U.S.C. § 2403. A party challenging the constitutionality of legislation should call the attention of the court to its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise timely asserted.

California Rules of Civil Procedure- Ca.R.C.P.

Rule 29.5. Questions of state law certified by federal appellate courts and other courts

(a) [Requirements for certified questions] The California Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth, provided that:

(1) the certifying court requests the answer

(2) the questions may be determinative of a cause pending in the certifying court, and

(3) the decisions of the California appellate courts provide no controlling precedent concerning the certified question.

(b) [Contents of certification request] Only a court specified in subdivision (a) may certify question. The request shall be by an order that sets forth:

(1) the caption of the case, including names and addresses of counsel and of parties appearing pro se and a designation of he party to be deemed the petitioner on the certified question if the request to answer is granted;
(2) the questions of law to be answered;
(3) a statement (by stipulation of the parties subject to approval by the certifying court, or by the court itself) ofÂ all facts relevant to the certified question, and showing fully the nature of the controversy and the circumstances in which the question arose;

(4) statements
(i) demonstrating that the question certified is contested and that there is no controlling precedent in the case law of the California appellate courts,

(ii) explaining how an authoritative answer to the certified question may be determinative of a cause pending in the certifying court; and
(iii) indicating that the answer provided by the California Supreme Court will be followed by the certifying court; and

(5) such additional information as the certifying court may deem relevant and useful.

(c) [Briefs and other materials] The certifying court shall furnish legible copies of all relevant briefs to the California Supreme Court with the request for an answer to the certified question. The California Supreme Court may request that the certifying court furnish additional material, such as exhibits or all or a portion of the record that, in the opinion of the court, may be useful in answering the certified question.

(d) [Request procedure] The judge or justice presiding at the certification hearing (if any) or the presiding judge or justice of the court or panel certifying the question shall sign the request for an answer to the certified question, and the clerk of the certifying court shall forward it under its official seal to the California Supreme Court.

(e) [Factors that may be considered] The California Supreme Court shall have discretion to accept or deny the request for an answer to the certified question of law. In exercising its discretion the court may consider:
(1) factors that it ordinarily considers in deciding whether to grant review of a decision of a California Court of Appeal or to issue an alternative writ or other order in an original matter;
(2) comity, and whether answering the question will facilitate the certifying court’s functioning or help terminate existing litigation;
(3) the extent to which an answer would turn on questions of fact; and
(4) any other factors the court may deem appropriate.

(f) [Clarification of question] At any time, the California Supreme Court may restate the certified question or may ask the certifying court to restate or clarify the certified question.

(g) [Order denying or accepting request] The California Supreme Court shall issue an order accepting or denying the request for an answer to the certified question. If the court accepts the request, it shall announce that determination in the manner that it announces the acceptance of cases for review, and thereafter:
(1) the California Rules of Court for briefing, argument, and conduct of appeals shall govern further proceedings on any certified question unless the court or the Judicial Council otherwise provides;
(2) fees and costs shall be the same as in appeals docketed before the California Supreme Court and in civil matters, shall be equally divided between or among the parties unless theÂ certifying court in its request for an answer to the certified question provides for a different allocation, or the California Supreme Court provides otherwise; and
(3) the California Supreme Court may in its discretion assign a certified question such priority on its docket as considerations of fairness, exigency, and comity may require.

(h) [Notice to California Attorney General] If the certified question concerns the proper interpretation of a California statute, in litigation in which the State of California or an officer, agency, or employee of the state is not a party, the clerk of the California Supreme Court shall notify the California Attorney General and the California Supreme Court may permit him or her to file briefs on the issue.

(i) [Transmission of opinion] The clerk shall forward the California Supreme Court’s written opinion stating the law governing the certified question to the certifying court, under the seal of the Supreme Court, and also shall forward copies of the opinion to counsel of record.

(j) [Publication and precedential effect] The California Supreme Court’s answer to a certified question shall have the same authoritative and precedential force as any other decision of the court, and shall be published in the official Reports.

(k) [Procedural rules] The California Supreme Court or the Judicial Council may adopt procedures governing practice under this rule.

(Adopted, eff. Jan. 1, 1998.) [Amended December 27, 1946, effective March 19, 1948; December 29, 1948, effective October 20, 1949; January 21, 1963, effective July 1, 1963; February 28, 1966, effective July 1, 1966; March 2, 1987, effective August 1, 1987; April 30, 1991, effective December 1, 1991.]

California Codes
California Code of Civil Procedure
CODE OF CIVIL PROCEDURE SECTION 387-388

INTERVENTION 387.

(a) Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared in the same manner as upon the commencement of an original action, and upon the attorneys of the parties who have appeared, or upon
the party if he has appeared without an attorney, in the manner provided for service of summons or in the manner provided by Chapter 5 (commencing with Section 1010) Title 14 of Part2. A party served with a complaint in intervention may within 30 days after service move, demur, or otherwise plead to the complaint in the same manner as to an original complaint.

(b) If any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property to transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.

388.

In an action brought by a party for relief of any nature other than solely for money damages where a pleading alleges facts or issues concerning alleged pollution or adverse environmental effects which could affect the public generally, the party filing the pleading shall furnish a copy to the Attorney General of the State of California. The copy shall be furnished by the party filing the pleading within 10 days after filing.

Oregon Certification of Questions of Law

ORS Chapter 28 – Oregon State Legislature

28.160 Short title. This chapter may be cited as the “Uniform Declaratory Judgments Act.” CERTIFICATION OF QUESTIONS OF LAW. 28.200 Supreme Court authorized …
http://www.leg.state.or.us/ors/028.html – Cached –Similar

Chapter 28 — Declaratory Judgments; Certification of Questions of Law　

2009 EDITION

DECLARATORY JUDGMENTS; QUESTIONS OF LAW

SPECIAL ACTIONS AND PROCEEDINGS

DECLARATORY JUDGMENTS

28.010　　　　　　 Power of courts; form of declaration
28.020　　　　　　 Declarations as to writings and laws
28.030　　　　　　 Construction of contract before or after breach
28.040　　　　　　 Declaratory judgments on trusts or estates
28.050　　　　　　 Enumeration not exclusive
28.060　　　　　　 Discretion of court to refuse judgment
28.070　　　　　　 Appeal or review
28.080　　　　　　 Supplemental relief
28.090　　　　　　 Trial of issues of fact
28.100　　　　　　 Costs
28.110　　　　　　 Parties; service on Attorney General when constitutional question involved
28.120　　　　　　 Construction and administration
28.130　　　　　　 “Person” defined
28.140　　　　　　 Provisions severable
28.150　　　　　　 Uniformity of interpretation
28.160　　　　　　 Short title

CERTIFICATION OF QUESTIONS OF LAW

28.200　　　　　　 Supreme Court authorized to answer questionsof law certified by other courts
28.205　　　　　　 Procedure to invoke ORS 28.200 to 28.255
28.210　　　　　　 Certification order
28.215　　　　　　 Form of certification order; submission of record
28.220　　　　　　 Fees; apportionment between parties
28.225　　　　　　 Procedure in certification matters
28.230　　　　　　 Opinion on certified question
28.235　　　　　　 Certification to another state
28.240　　　　　　 Procedure for certification to another state
28.245　　　　　　 Severability
28.250　　　　　　 Construction
28.255　　　　　　 Short title

DECLARATORY JUDGMENTS

28.010 Power of courts; form of declaration. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a judgment. [Amended by 2003 c.576 §302]

28.020 Declarations as to writings and laws. Any person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such instrument, constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.

28.030 Construction of contract before or after breach. A contract may be construed either before or after there has been a breach thereof.

28.040 Declaratory judgments on trusts or estates. Any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, ward or insolvent, may have a declaration of rights or legal relations in respect thereto:

　　　　　 (1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or other; or

　　　　　 (2) To direct the executors, administrators, trustees, guardians or conservators to do or abstain from doing any particular act in their fiduciary capacity; or

　　　　　 (3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings. [Amended by 1961 c.344 §101]

28.050 Enumeration not exclusive. The enumeration in ORS 28.010 to 28.040 does not limit or restrict the exercise of the general powers conferred in ORS 28.010, in any proceedings where declaratory relief is sought, in which a judgment will terminate the controversy or remove an uncertainty. [Amended by 2003 c.576 §303]

28.060 Discretion of court to refuse judgment. The court may refuse to render or enter a declaratory judgment where such judgment, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. [Amended by 2003 c.576 §304]

28.070 Appeal or review. All orders and judgments under this chapter may be appealed from or reviewed as other orders and judgments. [Amended by 2003 c.576 §305]

28.080 Supplemental relief.

Further relief based on a declaratory judgment may be granted whenever necessary or proper. The application thereof shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment to show cause why further relief should not be granted forthwith. [Amended by 2003 c.576 §306]

28.090 Trial of issues of fact. When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other actions at law or suits in equity in the court in which the proceeding is pending.　

28.100 Costs. In any proceeding under this chapter the court may make such award of costs as may seem equitable and just.

28.110 Parties; service on Attorney General when constitutional question involved. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal charter, ordinance or franchise, the municipality affected shall be made a party, and shall be entitled to be heard, and if the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.

28.120 Construction and administration.This chapter is declared to be remedial. The purpose of this chapter is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered. [Amended by 2005 c.22 §18]

28.130 “Person” defined.The word “person,” wherever used in this chapter, shall be construed to mean any person, partnership, joint stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever.

28.140 Provisions severable. The several sections and provisions of this chapter, except ORS 28.010 and 28.020, are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the chapter invalid or inoperative.

28.150 Uniformity of interpretation. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments. [Amended by 2003 c.576 §307]

28.160 Short title. This chapter may be cited as the “Uniform Declaratory Judgments Act.”

CERTIFICATION OF QUESTIONS OF LAW

28.200 Supreme Court authorized to answer questions of law certified by other courts.

The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, a panel of the Bankruptcy Appellate Panel Service or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceedings before it questions of law of “this state“ which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court and the intermediate appellate courts of this state. [1983 c.103 §1; 1995 c.197 §1]

Note: 28.200 to 28.255 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 28 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

28.205 Procedure to invoke ORS 28.200 to 28.255.

ORS 28.200 to 28.255 may be invoked by an order of any of the courts referred to in ORS 28.200 upon the court’s own motion or upon the motion of any party to the cause. [1983 c.103 §2]