The Two Faces of Jurisdiction

What You Need To Know To Assert Remedy

The concept of jurisdiction in law has two faces (or two elements that must be
met first) in terms of what a court must have in order to move forward with a
matter. Were you aware that a court must have obtained both jurisdiction over
an accused person (known as in personam jurisdiction) and jurisdiction over the
subject matter involved? Unless you understand what these terms refer to, you
could be waiving your rights to a remedy in a matter that does not actually
concern you. Which means you will be entering a no-win situation with regard to
the action that may be confronting you.

Jurisdiction in the matter of a victimless traffic ticket can be a tricky thing for an
administrative commercial government court to obtain, especially if the accused
(defendant) is actively asserting his choice of law in the matter as the common
law. The so-called “judge” or magistrate in the matter will be the main sticking
point which one needs confront. Because traffic courts are in general
administrative commercial courts and not judicial courts, it takes the mistaken
perception of the accused or the arrogant presumption of the court that a
contractual agreement is in place before such court is able to
gain personam jurisdiction over the accused in the matter. In other words, in an
administrative commercial court, a contract needs to be in place before that
court can compel performance on that contract. Are you aware of any contracts
that you recently signed consenting to such jurisdiction? No? Well, then, you
need to bring this matter up in an objection!

However, before we explain this very subtle matter of personam jurisdiction in

the matter of a victimless traffic violation, let’s back up and find out exactly what
constitutes the gaining of jurisdiction for a court in such a matter.

In order for any court to gain jurisdiction in a matter that is brought before it,
that court must have established on the record the two elements that constitute
jurisdiction. Those two elements are personam jurisdiction and what is known
as subject matter jurisdiction. When demanded (and it is always a good idea for
the accused to make this demand) these two elements of
jurisdiction must appear on the record of the court or the court is operating
without any authority. It is the duty of the party bringing the action (the so-
called plaintiff) to prove both personam and subject matter jurisdiction before a
matter can even be brought to a court. It is not the duty of the court (or the
judge) to prove these elements of jurisdiction. Yet, because most people are
ignorant of legal process, they do not understand that it is the plaintiff who
assumes the burden of proving these elements with hard evidence entered on
the record before the matter can proceed forward. A mere unsworn to accusation
or complaint is not hard evidence of anything! Only sworn testimony from a
competent injured party can stand as a verified complaint in order to provide
evidence of jurisdiction.

Often, an ignorant victim of the legal system will accept (consent to) the
assertion by a judge that he (the judge) has jurisdiction in the matter, without
objecting that it is the duty of the plaintiff to prove both elements of jurisdiction
and not the duty of a judge. Generally speaking, when a judge is asserting
jurisdiction in a matter, he is asserting that his court is statutorily authorized to
hear cases dealing with a specific subject matter because the statutes apply to
the subject matter at hand, and ignorant victims of this sophistry simply accept
the judge’s statement at face value without questioning the specifics with regard
to the required elements which entail the gaining of subject matter jurisdiction.

While a judge is within his authority to assert that he can hear a certain matter
within the parameters of a given subject matter such as a traffic violation, this is
not the same as having subject matter jurisdiction proven on the record. There is
a maxim of law which states: “What is like is not the same, for nothing similar is
the same.” In other words, a simple assertion that the court can hear any variety
of matters involving traffic violations does not reach the level of a specific matter
being brought before the court by a specific injured party. There has to be a
specific matter brought before a court before the matter can proceed in that
court. If no one has an actual claim of injury or property damage, then subject
matter jurisdiction has not been established! It is that simple.

So, what then constitutes the requirement for the establishing of subject matter
jurisdiction? Subject matter jurisdiction needs to have two elements proven on
the record in a court of law:

First, it is necessary that a competent witness (plaintiff or injured party) appear

with a verified (sworn) complaint or that a notarized (sworn under penalty of
perjury) affidavit demonstrating an injury sustained by a party be entered on the
record. What is referred to in legal circles as a “sufficient pleading.”

Second, it requires a statutory or common law basis for a remedy of the injury.

At this point, it is interesting to note that any ruling made by a court in which
there was a lack of subject matter jurisdiction disqualifies the ruling. That ruling
is then called a “void judgment.” The reason it is deemed void (or disqualified) is
because the court that issued the ruling never obtained subject matter
jurisdiction in the first place! This is why subject matter jurisdiction can be
challenged at ANY time, either before, during, or after a matter has apparently
been settled. Having or obtaining subject matter jurisdiction is a big deal!
Because without it, the matter itself is simply a frivolous matter.

It is important to note that subject matter jurisdiction can never be

presumed, never be waived, and cannot be construed (inferred) even by mutual
consent of the parties. As mentioned above, subject matter jurisdiction is
composed of two principal parts: the statutory or common law authority for the
court to hear the case and the appearance and testimony of a competent fact
witness or what is known in legal jargon as “sufficiency of pleading.” In other
words, if there is a defect in the pleadings, a matter cannot (or rather should not)
go forward.

Defects in subject matter jurisdiction can include any of the following:

1. No valid petition in the record of the case; Brown v. VanKeuren, 340 Ill. 118,
122 (1930).
2. A defective petition was filed; Brown v. VanKeuren, 340 Ill. 118, 122 (1930).
3. Fraud was committed in the procurement of jurisdiction; Fredman Brothers
Furniture v. Dept. of Revenue, 109 Ill.2d 202, 486 N.E.2d 893 (1985).
4. A fraud was committed upon the court; in re: Villiage of Willowbrook, 37 Ill.
App.3d 393 (1962).
5. A judge does not follow statutory procedure; Armstrong v. Obucino, 300 Ill.
140, 143 (1921)
6. Unlawful activity of a judge; Code of Judicial Conduct.
7. A violation of due process; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019
(1938); Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E.2d 289
(1956).
8. If the court exceeded its statutory authority; Rosenstiel v. Rosenstiel, 278
F.Supp. 794 (S.D.N.Y. 1967).
9. Any acts in violation of Title 11 U.S.C. §362(a); in re: Garcia, 109 B.R. 335
(N.D. Illinois, 1989).
10. Where no justicable issue is presented to the court through proper
pleadings; Ligon v. Williams, 264 Ill. App.3d 701, 637 N.E.2d 633 (1st Dist.
1994).
11. Where a complaint states no cognizable cause of action against the alleged
party; Charles v. Gore, 248 Ill.App.3d 441, 618 N.E.2d 554 (1st Dist. 1993).
12. When the judge is involved in a scheme of bribery (conflict of interest); the
Alemann cases, Bracey v. Warden, U.S. Supreme Court No. 96-6133; June 9,
1997).
13. Where a summons was not properly issued.
14. Where service of process was not made pursuant to statute and Supreme
Court Rules; Janove v. Bacon, 6 Ill. 2d 254, 249, 218 N.E. 2d 706, 708 (1955).
15. When the Rules of Circuit Court are not complied with.

Additionally, any ruling which involves a violation of due process of law under
the Fifth, Sixth, or Seventh Amendments is also a void judgment. Void
judgments can be attacked or vacated at any time, there being no statute of
limitation. A void judgment is one which, from its inception, was a complete
nullity, that is, without legal force or effect, invalid.

If a court obtains subject matter jurisdiction but fails to obtain in

personam jurisdiction, then the matter, in theory at least, cannot go any further.
The complainant must then seek out a court agreeable to the accused if he
wishes to pursue the matter. In other words, the basis of law must first also be
agreed upon. If the accused does not agree with the law being waged (as in the
case of statutes that he deems do not apply to himself), then the complainant
must be able to prove jurisdiction based upon some commonly held principles in
law. This is because the court must first obtain jurisdiction over the person of
both parties in the matter before it is allowed to proceed any further in the
matter.

Generally speaking, jurisdiction over the parties (that is, in

personam jurisdiction) can originate from any one of the following four sources.
However, this doesn’t necessarily imply that the level of proof for any one of
these cannot also be challenged. Any party to a matter must either:

1. Live in the territorial jurisdiction of the court. Or,

2. Operate a business in the territorial jurisdiction. Or,
3. Own property inside the jurisdiction. Or,
4. Commit an injury to another party in the territorial jurisdiction.

In addition to the above four elements for in personam jurisdiction, the parties
must also have experienced due process of law through having had notice and
opportunity to be heard and to defend (that is, to be in receipt of personal
service, having received notice of a copy of the petition, claim, or complaint
while being able to answer or respond to the alleged pleading). In practice, this
means that an adverse party to a matter must be personally served with the
pleadings by a process server in order to allege that party is a party to the suit. If,
as an alleged party to a matter, you have not been accorded due process, then
that is a fatal error in legal process and the matter cannot (or should not) go
forward.

According to Black's Law Dictionary, Fourth edition:

Due process of law in each particular case means such an exercise of the powers
of the government as the settled maxims of law permit and sanction, and
under such safeguards for the protection of individual rights as those
maxims prescribe for the class of cases to which the one in question belongs.

The essential elements of “due process of law” are notice and opportunity to
be heard and to defend in orderly proceeding adapted to nature of case, and
the guarantee of due process requires that every man have protection of day in
court and benefit of general law.

However, obtaining in personam jurisdiction isn’t always as easily obtained by

being able to allege that a party lives in the territorial jurisdiction of a court since
local, state, and federal government courts are political entities and can only
exercise jurisdiction over its political members or associates. Since all
contemporary government is based upon the principle of a legal fiction, each
member of the political association must agree to be identified as a legal fiction
within the jurisdiction of the government for the government to maintain
jurisdiction over a matter where a party’s domicile is used in providing proof of
territorial jurisdiction. If the party is not a member of the political association
and claims to be the living breathing flesh-and-blood man, then the complainant
has the burden of proving such jurisdiction through other means (such as using
the jurisdiction of the common law).

What this means in a practical sense in terms of a victimless traffic violation is

that this burden of proof rests on the officer issuing the citation. Once
challenged, if he cannot prove that he has jurisdictional authority over a
presumed member of the political association to whom he has issued a citation,
then the court cannot verify that it has obtained in personam jurisdiction in the
matter. Such proof of jurisdiction must appear on the record of the court once it
is challenged. When the court has knowledge that in personam jurisdiction is
lacking, the court (meaning the judge or magistrate) has no discretion in the
matter but to dismiss the action for lack of jurisdiction.

Yet, in the case of a victimless traffic violation, it should be remembered that

even if the court manages by hook or crook to claim personam jurisdiction, that
subject matter jurisdiction can ALWAYS be challenged at ANY time. And when
there is an absence of a competent witness claiming a real injury to self or
property, there can be no subject matter jurisdiction and therefore the court fails
to gain such.

If you ever get dragged into court and you wish to successfully
challenge personam jurisdiction, it must be done at the very outset of the matter.
Meaning that no other fact of the matter can be discussed or challenged other
than personam jurisdiction. This can only be done, as mentioned, at the very
beginning of the court process, which means that you must attend the court
under a “special appearance” just for that challenge and not make a general
appearance.

If you hire an attorney, the attorney is an officer of the court whose first
responsibility is to the court and not his client, yourself. Hiring an attorney or
allowing the court to appoint one for you constitutes signing over your power of
attorney to the person representing you in the matter, and is an immediate
waiver of personam jurisdiction. When seeking remedy in such a matter, in
order to be heard in your own proper person as a flesh-and-blood man (or
woman) you must address the court as yourself. To learn more about what a
special appearance entails, see our article What Is A Special Appearance In
Court.
_________________

If you would like to learn more about concepts of law so you 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.

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.