Court (Relation Back Doctrine

– Defeats Summary
Administrative Process) Part 1

07 SaturdayJUL 2012

POSTED BY EOWYNDBH IN UNCATEGORIZED

≈ 4 COMMENTS
Tags
Armstrong v. Manzo, Baldwin v. Hale, Bell v. Burson, Boddie v. Connecticut, Ex Parte Milligan, Fuentes v.
Shevin, Goldberg v. Kelly, Grannis v. Ordean, Hovey v. Elliott, In Re Ruffalo, Joint Anti-Fascist Refugee Committee
v. McGrath, Kilbourne v. Thompson, Londoner v. City and County of Denver, Lynch v. Household Finance
Corp, Miranda v. Arizona, Mitchell v. Grant, Mullane v. Central Hanover Bank & Trust, N. J. Land, North Georgia
Finishing v. D-Chem, Opp Cotton Mills v. Administrator of Wage and Hour, relation-back doctrine, Stanley v.
Illinois, United States v. Grundy & Thornburgh, United States v. Lee, United States v. Parcel of Rumson, United
States v. Stowell, Wayman v. Southard, Windsor v. McVeigh, Wisconsin v. Constrantineau

(For Frank ‘Austin’ England III)

(Blog Masters Note: This is the last document that was listed in Frank ‘Austin’ England III e-mail to
study including 1. “Refusing A Non-Substantive Offer (Nullify Commercial Law)” and 2. “Court
(Remedy by Non-Assumpsit)”. This may or may not be one of his documents, I don’t believe it is,
it’s a ‘teaching tool’, others believe it is Austin’s work. When truth is written it stands on its own
regardless of the author.) (See comment below, the author is Dan Meador.)
 Relation-Back Doctrine Condemns
Administrative Tax Lien & Levy

Fourth Revision, June 2002

The “relation-back doctrine” controls government interest in private property that

arises as the consequence of an obligation imposed by law. In sum, the principle is
this: While any given statute may give the government right, title and interest in
property at the time of whatever act or omission the statute specifies, the claim
isn’t perfected and transfer may not be executed until the matter is
adjudicated. Once a lien is perfected by way of a judgment from a court of
competent jurisdiction, it is retroactive to the date of the alleged act or omission
that gave rise to the claim (or offer crafted as a claim). This longstanding
common-law doctrine has variously been incorporated in statutes, but the
necessity of judicial procedure to perfect government interest isn’t dependent on
statutory language. Even when the relation-back doctrine isn’t written into a
statute that conveys interest in private property for noncompliance with
performance requirements, it still controls statute construction.

Addressing the Substantive Nature that is Necessary to Perfect a

Like Substantive Claim

(Which would have to encompass and thereby consider the necessary rules and
regulations promulgated by the agency in question from the intent of the statute
that would necessarily have to be a substantive rule or regulation to give access to
any like substantive property interest.)

The requirement for judicial due process is secured by the Fourth, Fifth, Sixth and
Seventh Amendments to the Constitution of the United States. The Fourth
Amendment controls pre-judgment searches and seizures (there must be a
complaint under oath and a probable cause hearing before a magistrate in a court
of competent jurisdiction; the exception is a criminal admiralty or maritime
warrant, which can be issued by a court clerk), and the Fifth controls conversion:
“No person shall be deprived of life, liberty or property without due process of
law.”

Relation-back doctrine is confirmed by U.S. Supreme Court decisions in 1806, 1890

and 1993, all cited in this memorandum, and is acknowledged in the Internal
Revenue Manual, which prescribes operating procedure for Internal Revenue
Service personnel. The doctrine governs how civil (non-criminal) claims of the
United States must be perfected and executed. Virtually all IRS seizures where
there is no lien or notice of lien are based on Code sections 7301 or 7302, or
money laundering statutes classified in Titles 18 and 31, and are predicated on
underlying presumptions that the property seized was involved in criminal activity.
In either event, even when the action is predicated on a maritime cause, there
must be judicial due process under one of two jurisdictional clauses in Article III §
2 of the U.S. Constitution.

strong> In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), former Chief Justice Earle Warren penned the following: “As courts have
been presented with the need to enforce constitutional rights, they have found
means of doing so. That was our responsibility when Escobedo was before us and
it is our responsibility today. Where rights secured by the Constitution are
involved, there can be no rule making or legislation which would abrogate them.”

Prior to addressing particulars of relation-back doctrine, it will be useful to

dispose of the notion that Internal Revenue Service personnel have authority to
unilaterally seize bank accounts, wages, salaries and the like with notices of levy
that aren’t supported by judgments from courts of competent jurisdiction. The due
process clause is among the substantive rights the Supreme Court was referring to
in Miranda v. United States. In Fuentes v. Shevin, Attorney General of Florida, et
al, (1972) 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556, Supreme Court justices
addressed essentials of the due process clause as it appears in the Fifth and
Fourteenth Amendments:

For more than a century the central meaning of procedural due process has been
clear: “Parties whose rights are to be affected are entitled to be heard; and in
order that they may enjoy that right they must first be notified.” Baldwin v. Hale,
68 U.S. (1 Wall.) 223, 233. See Windsor v. McVeigh, 93 U.S. 274; Hovey v.
Elliott, 167 U.S. 409; Grannis v. Ordean, 234 U.S. 385. [***570] It is equally
fundamental that the right to notice and an opportunity to be heard “must be
granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo
380 U.S. 545, 552.

The constitutional right to be heard is a basic aspect of the duty of government to

follow a fair process of decision making when it acts to deprive a person of his
possessions. The purpose of this requirement is not only to ensure abstract fair
play to the individual. Its purpose, more particularly, is to protect his use and
possession of property from arbitrary encroachment — to minimize substantively
unfair or mistaken deprivations of property, a danger that is especially great when
the State seizes goods simply upon the application of and for the benefit of a
private party. So viewed, the prohibition against the deprivation of property
without due process of law reflects the high value, embedded in our constitutional
and political history, that we place on a person’s right to enjoy what is his, free of
governmental interference. See Lynch v. Household Finance Corp, 405 U.S.
538, 552.

The requirement of notice and an opportunity to be heard raises no impenetrable

barrier to the taking of a person’s possessions. But the fair process of decision-
making that it guarantees works, by itself, to protect against arbitrary deprivation
of property. For when a person has an opportunity to speak up in his own defense,
and when the State must listen to what he has to say, substantively unfair and
simply mistaken deprivations of property interests can be prevented. It has long
been recognized that “fairness can rarely be obtained by secret, one-sided
determination of facts decisive of rights. … [And no] better instrument has been
devised for arriving at truth than to give a person in jeopardy of serious loss
notice of the case against him and opportunity to meet it. ”Joint Anti Fascist
Committee v. McGrath 341 U.S. 123, 170-172 (Frankfurter, J., concurring).

If the right to notice and a hearing is to serve its full purpose, then, it is clear that
it must be granted at a time when the deprivation can still be prevented. At a later
hearing, an individual’s possessions can be returned to him if they were unfairly or
mistakenly taken in the first place. Damages may even be awarded to him for the
wrongful deprivation. But no later hearing and no damage award can undo the fact
that the arbitrary taking that was subject to the right of procedural due process
has already occurred. “This Court has not … embraced the general proposition that
a wrong may be done if it can be undone. ”Stanley v. Illinois, 405 U.S. 645,
647.

This is no new principle of constitutional law. The right to a prior hearing has long
been recognized by this Court under the Fourteenth and Fifth Amendments.
Although the Court has held that due process tolerates variances in the form of a
hearing “appropriate to the nature of the case, ”Mullane v. Central Hanover
Bank & Trust Co.,
339 U.S. 306, 313, and “depending upon the importance of the interests involved
and the nature of the subsequent proceedings [if any],” Boddie v.
Connecticut, 401 U.S. 371, 378, the Court has traditionally insisted that,
whatever its form, opportunity for that hearing must be provided before the
Bell v. Burson, 402 U.S. 535,
deprivation at issue takes effect. E. g.,
542; Wisconsin v. Constrantineau, 400 U.S. 433, 437; Goldberg v. Kelly,
397 U.S. 254; Armstrong v. Manzo, 380 U.S., at 551; Mullane v. Central
Hanover Bank & Trust Co., supra, at 313; Opp Cotton Mills v.
Administrator Of Wage And Hour Div., 312 U.S. 126, 152-153; United
States v. Illinois Cent. R. Co., 291 U.S. 457, 463; Londoner v. City and
County of Denver, 210 U.S. 373, 385-386. See In Re Ruffalo, 390 U.S. 544,
550-551. “That the hearing required by due process is subject to waiver, and is
not fixed in form does not affect its root requirement that an individual be given
an opportunity for a hearing before he is deprived of any significant property
interest, except for extraordinary situations where some valid governmental
interest is at stake that justifies postponing the hearing until after the event.”
Boddie v. Connecticut, supra, at 378-379 (emphasis in original).

The Supreme Court of Florida wrote one of the better analytical summaries of U.S.
Supreme Court decisions concerning procedural due process secured by the Fifth
and Fourteenth Amendment clauses in Ray Lien Construction, Inc. v. Jack M.
Wainwrite, (1977) 346 S.2d 1029:

Garnishment is but one form of summary remedy historically available to the

creditor. It is a method whereby a person’s property, money, or credits in the
possession, under the control, or owing by another are applied to payment of the
former’s debt to a third person by proper statutory process against the debtor and
garnishee. Because this remedy works a deprivation of debtor’s property, it must
comply with the requirements of procedural due process.
For more than a century the central meaning of procedural due process has been
clear: “Parties whose rights are to be affected are entitled to be heard, and in
order that they may enjoy that right, they must first be notified.” Baldwin v. Hale,
68 U.S. (1 Wall.) 223, 233, 17 L. Ed. 531. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.
Ct. 1983, 32 L. Ed. 2d 556 (1972).
The United States District Court for the Middle District of Florida recently reviewed
the statutes in question and held the procedure, as outlined in Chapter 77, Florida
Statutes, unconstitutional. See Bunton v. First National Bank of Tampa, 394 F.
Supp. 793 (M.D.Fla.1975). In arriving at its decision, the District Court relied upon
the Supreme Court’s decision in North Georgia Finishing Inc. v. D-Chem
Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975), wherein a similar
Georgia prejudgment garnishment statute was declared unconstitutional. In North
Georgia Finishing, the Court referred to its earlier decision in Fuentes v. Shevin,
supra, wherein the Florida and Pennsylvania replevin statutes were held invalid.
Those statutes permitted a secured installment seller to repossess goods sold
without prior notice and without opportunity for a hearing or other safeguard
against mistaken repossession. A writ was issuable by a clerk of the court upon ex
parte application and posting of bond. It was not necessary to show that the
goods were wrongfully detained. Nor was provision made for prompt post-seizure
hearing. Thus, the debtor was deprived of his property until final outcome of the
repossession suit. The Georgia statute was condemned on similar grounds. A writ
of garnishment was issuable at the behest of the seller, without notice or
opportunity for early hearing and without participation by a judicial officer. As in
Fuentes, debtor’s only remedy was to post a security bond.
We read North Georgia Finishing, supra, and Mitchell, supra, to require a
hearing either before the alleged taking or promptly thereafter. In Unique Caterers
v. Rudy’s Farm Co., supra, we found Chapter 76 constitutionally deficient because
it did not require an immediate post-seizure hearing. Rather, it simply kept the
court open at any time to hear motions for dissolution…
We also state:
It is constitutionally imperative that a writ issue only after an impartial factual
determination is made concerning the existence of the essential elements
necessary for issuance of the writ. Consequently, a writ must be issued by a
judicial officer based upon a prima facie showing rather than pro forma by the
clerk of court, unless the initial pleading is made under oath to a clerk who makes
an independent factual determination that the requirements of the statute have
been complied with. Only then can the individual have his use and enjoyment
of property protected from arbitrary encroachment. (footnote omitted)

Circumstances where the executive branch can seize property without judicial due
process are extremely limited, and the notion that seized property can be
administratively converted without judicial due process even in the event of
exigent circumstances that require immediate action is absurd. One of the more
comprehensive and expansive statements on the requirement for judicial due
process of law was written in United States v. Lee; Kaufman v. Lee, 106 U.S.
196; 1 S. Ct. 240; 27 L. Ed. 171 (1882). In this case, the son of Robert E. Lee, who
commanded the Confederate army, recovered the family estate he inherited from
his maternal grandfather. The grandfather had given his daughter, Robert E. Lee’s
wife, a lifetime estate in the property, but ownership as heir passed to the
grandson. The estate was absconded through a trumped-up tax sale rigged to
gratify personal hostility of the President. Supreme Court justices who joined in
the decision weren’t overly accommodating.

Although this cite is a little longer than would normally be included in what is
intended to be a reasonably short memorandum, it is on point particularly where
an administrative agency such as the Internal Revenue Service has a half-century
history of encumbering and converting private property without judicial due
process of law:

What is that right, as established by the verdict of the jury in this case? It is the
right to the possession of the homestead of plaintiff. A right to recover that which
has been taken from him by force and violence, and detained by the strong hand.
This right being clearly established, we are told that the court can proceed no
further, because it appears that certain military officers, acting under the orders of
the President, have seized this estate, and converted one part of it into a military
fort and another into a cemetery.
It is not pretended, as the case now stands, that the President had any lawful
authority to do this, or that the legislative body could give him any such authority
except upon payment of just compensation. The defense stands here solely upon
the absolute immunity from judicial inquiry of every one who asserts authority
from the executive branch of the government, however clear it may be made that
the executive possessed no such power. Not only no such power is given, but it is
absolutely prohibited, both to the executive and the legislative, to deprive any one
of life, liberty, or property without due process of law, or to take private property
without just compensation.
These provisions for the security of the rights of the citizen stand in the
Constitution in the same connection and upon the same ground, as they regard his
liberty and his property. It cannot be denied that both were intended to be
enforced by the judiciary as one of the departments of the government established
by that Constitution. As we have already said, the writ of habeas corpus has been
often used to defend the liberty of the citizen, and even his life, against the
assertion of unlawful authority on the part of the executive and the legislative
branches of the government. See Ex Parte Milligan, 71 U.S. (4 Wall.)
2; Kilbourne v. Thompson, 103 U.S. 168.
No man in this country is so high that he is above No officer of the law may set
that law at defiance with impunity. All the officers of the government, from the
highest to the lowest, are creatures of the law, and are bound to obey it.
It is the only supreme power in our system of government, and every man who by
accepting office participates in its functions is only the more strongly bound to
submit to that supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives.
Courts of justice are established, not only to decide upon the controverted rights
of the citizens as against each other, but also upon rights in controversy between
them and the government; and the docket of this court is crowded with
controversies of the latter class.
Shall it be said, in the face of all this, and of the acknowledged right of the
judiciary to decide in proper cases, statutes which have been passed by both
branches of Congress and approved by the President to be unconstitutional, that
the courts cannot give a remedy when the citizen has been deprived of his
property by force, his estate seized and converted to the use of the government
without lawful authority, without process of law, and without compensation,
because the President has ordered it and his officers are in possession?
If such be the law of this country, it sanctions a tyranny which has no existence in
the monarchies of Europe, nor in any other government which has a just claim to
well-regulated liberty and the protection of personal rights.
It cannot be, then, that when, in a suit between two citizens for the ownership of
real estate, one of them has established his right to the possession of the property
according to all the forms of judicial procedure, and by the verdict of a jury and
the judgment of the court, the wrongful possessor can say successfully to the
court, Stop here, I hold by order of the President, and the progress of justice must
be stayed. That, though the nature of the controversy is one peculiarly appropriate
to the judicial function, though the United States is no party to the suit, though
one of the three great branches of the government to which by the Constitution
this duty has been assigned has declared its judgment after a fair trial, the
unsuccessful party can interpose an absolute veto upon that judgment by the
production of an order of the Secretary of War, which that officer had no more
authority to make than the humblest private citizen. [Underscore added for
emphasis]

If administrative agencies have the right to encumber, seize and/or dispose of

private property without judicial due process, there is no reason to have courts.
When King George III subjected British colonies in North America to that kind of
foolishness, American founders employed the word “despotism” to describe his
actions.1 In 1882, justices of the U.S. Supreme Court articulated the obvious: “If
such be the law of this country, it sanctions a tyranny which has no existence in
the monarchies of Europe, nor in any other government which has a just claim to
well-regulated liberty and the protection of personal rights.”

Fortunately, the law doesn’t authorize administrative encumbrance, levy, seizure,

garnishment or any other adverse action that compromises life, liberty or property
without judicial due process of law. Administrative notices of lien and notices of
levy issued by Internal Revenue Service personnel when claims have not been
adjudicated are bogus instruments – they are not backed by the force of law.
However, these administratively-issued instruments are routinely filed and/or
executed by county recorders, banks, employers and others who are either
ignorant of the law or are too intimidated to risk reprisal. While there may be no
cure for cowardice, the relation-back doctrine clarifies the law.

Where the American people are concerned, judicial due process characteristically
falls either under the “arising under” clause (law and equity) or the admiralty and
maritime jurisdiction clause, both of which are in Article III § 2 of the Constitution
of the United States. Actions at law (“arising under” clause; Fifth, Sixth and
Seventh Amendments) must proceed in the course of the common law; equity,
admiralty and maritime actions follow the course of the civil law. See Wayman
v. Southard, 23 U.S. 1, 6 L. Ed. 253, 10 Wheat 1, and the judiciary act of 1792.
The relevant portion of Article III § 2, paragraph 1 is as follows:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority; — to all Cases affecting Ambassadors, other public
Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction…

Foot Note 1

The relation-back doctrine is to understanding of administration and enforcement

of internal revenue laws as the missing link is to evolution theory. It explains why
administratively-issued notices of lien and levy are bogus instruments used for
fraudulent conversion.

One of the better contemporary Supreme Court cases on the relation-back doctrine
is United States v. Parcel of Rumson, N. J. Land, (1993), 507 U.S. 111;
113 S. Ct. 1126; 122 L. Ed. 2d 469.

The Buena Vista case was an in rem (admiralty/maritime) case involving proceeds
of illegal drug trafficking.2 The alleged drug dealer made a gift of money to a
woman for purchase of the house located on Buena Vista Avenue. Several years
later, the drug dealer was prosecuted and the government initiated a civil
forfeiture action against the property even though the woman owned it, the
government claiming that its interest dated to the time of the illegal transaction
that produced the money. Whether or not the woman was aware of the illegal
activity was irrelevant since the government’s interest dated to the time of the
original illegal transaction. Even though she might be innocent by virtue of what
she did or didn’t know, she could not enjoy fruits of the illegal enterprise.

Writing for four of the justices joining the plurality decision, Justice Stevens
traced the relation-back doctrine to an 1806 decision written by former Chief
Justice John Marshall:
Chief Justice Marshall explained that forfeiture does not automatically vest title to
property in the Government:
“It has been proved, that in all forfeitures accruing at common law, nothing vests
in the government until some legal step shall be taken for the assertion of its
right, after which, for many purposes, the doctrine of relation carries back the title
to the commission of the offence.” United States v. Grundy & Thornburgh,
7 U.S. (3 Cranch) 337, 350-351, 2 L. Ed. 459 (1806).
The same rule applied when a statute (a statute that contained no specific relation
back provision) authorized the forfeiture. In a passage to which the Government
has referred us, we stated our understanding of how the Government’s title to
forfeited property relates back to the moment of forfeiture:
“By the settled doctrine of this court, whenever a statute enacts that upon the
commission of a certain act specific property used in or connected with that act
shall be forfeited, the forfeiture takes effect immediately upon the commission of
the act; the right to the property then vests in the United States, although their
title is not perfected until judicial condemnation; the forfeiture constitutes a
statutory transfer of the right to the United States at the time the offence is
committed; and the condemnation, when obtained, relates back to that time, and
avoids all intermediate sales and alienations, even to purchasers in good faith”.
United States v. Stowell, 133 U.S. at 16-17 (emphases added).

Foot Note 2

If the Government wins a judgment of forfeiture under the common-law rule —

which applied to common-law forfeitures and to forfeitures under statutes without
specific relation back provisions — the vesting of its title in the property relates
back to the moment when the property became forfeitable. Until the Government
does win such a judgment, however, someone else owns the property. That person
may therefore invoke any defense available to the owner of the property before
the forfeiture is decreed. [Underscore added for emphasis; italics in original]

(Foot Note 1: “That whenever any Form of Government becomes destructive of

these ends, it is the Right of the People to alter or to abolish it, and to institute
new Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to effect their Safety and
Happiness. Prudence, indeed, will dictate that Governments long established
should not be changed for light and transient causes; and accordingly all
experience hath shown, that mankind are more disposed to suffer, while evils are
sufferable, than to right themselves by abolishing the forms to which they are
accustomed. But when a long train of abuses and usurpations, pursuing invariably
the same Object evinces a design to reduce them under absolute Despotism, it is
their right, it is their duty, to throw off such Government, and to provide new
Guards for their future security”. —Declaration of Independence (1776)

(Foot Note 2: Where the Buena Vista decision was based on Title 21 civil forfeiture
authority, the corresponding provision in the Internal Revenue Code is 26 U.S.C. §
7302, property used in violation of internal revenue laws, and the Internal
Revenue Service assumes authority under 26 CFR § 403, which is predicated on
the presumption that the property has been used in conjunction with a drug-
related commercial crime. Treasury delegation order #157 conveys underlying
authority.)

RELATED
Court (Relation-Back Doctrine - Defeats Summary Administrative Process) part 3 In
"Balzac v. Porto Rico"
Court (Relation Back Doctrine - Defeats Summary Administrative Process) Part 2 In
"choate lien"
Court (Administrative Jurisdiction Must Be Proven UCC 1-308) In "affidavit with seal"