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1168Justice's habeas; declaratory & injunctive

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  • legalbear
    Feb 28, 2003
    • 0 Attachment
      State of Colorado )
      ) ss
      County of Gunnison )

      David Justice amends his complaint to include a petition for writ of habeas
      corpus, C.R.S. §13-45-101 et seq., Colorado R. Civ. Proc.106 (a)(4) in
      addition to the original petition for Prohibition; declaratory and
      injunctive relief pursuant to 13-51-101 et seq., C.R.C.P. Rules 57 and 65;
      and Replevin, C.R.C.P. Rule 104; and declares under oath that the facts
      contained herein are true and correct to the best of my knowledge and
      belief.

      1. Shawn Mess ("Mess") a resident of Gunnison County whose address is
      31321 Hwy 149, is being sued in his individual, personal capacity.

      2. H & H Towing is doing business at 901 W. New York Ave., Gunnison,
      Colorado.

      3. Fred Fisher ("Fisher") is the duly appointed, qualified and acting
      executive director of the department of revenue, ("Department") the
      administrative agency created and established by C.R.S. §§ 24-1-117 and §
      24-35-101, the function of which is, among other things, the collection of
      taxes levied and license fees imposed by the provisions of title 42, and the
      administration and enforcement of said provisions. See 24-35-101(c). Fisher
      is authorized by C.R.S. § 39-21-112 to administer the provisions of article
      3 of title 42, and by C.R.S. §§ 42-1-201 and 42-1-203 to administer,
      enforce, and co-ordinate the provisions of articles 1 to 4 of title 42
      C.R.S.

      4. Plaintiff is a sentient being; a racially white, anglo saxon man,
      born at Friona, Texas, who is a bond servant of the Messiah, Yeshua, to whom
      all power in heaven and earth belong, Matthew 28.18; and having pledged his
      allegiance thereto, is a citizen of the kingdom of God. See Justice v.
      Gunnison County Court, Gunnison District Court 96CV50. See also
      Plainitiff's Notice of Law and Foreign law incorporated herein by reference.


      5. Plaintiff is not the property or chattel of either the United States
      or the State of Colorado, nor is he a U.S. citizen as defined pursuant to
      the 14th Amendment to the United States Constitution, and denies being
      entitled to, or having knowingly, intelligently and voluntarily procured or
      partaken of any government privilege or benefit sanctioned thereunder.
      Plaintiff has no secured debt, no bank loans or accounts, no stocks or
      bonds, no credit cards.

      6. Plaintiff has been convicted and sentenced on charges brought in the
      Gunnison County Court, case number 2001T300 People v. David Justice, ("Trial
      Court") initiated by Defendant Mess via CSP Form 4, UNIFORM SUMMONS AND
      COMPLAINT OR PENALTY ASSESSMENT NO. 1682960 C.R.S. §§ 42-4-1409, 42-2-138
      and 42-3-133(1)(b), and is presently incarcerated and serving 180 days in
      the Gunnison county jail, with a release date of June 13, 2003, A.D.
      (Mittimus is attached as Plaintiff's exhibit one).

      7. The res of concern in the trial court was a 1976 Toyota Corolla,
      ("Corolla") the property of which was held by both the Plaintiff and the
      Embassy of Heaven Church ("Church"). The certificate of title previously
      vesting ownership in the Corolla to the doner, was cancelled by the Church
      and returned to the state of Colorado Department of Revenue. No certificate
      of title was subsequently procured by the Church for the Corolla from any
      state.

      8. The Corolla is currently in the possession of Defendant H & H
      Towing.

      9. Neither the Church nor the Plaintiff are using the Corolla for the
      occupation of a public or common carrier, nor that of a private or contract
      carrier for hire, and neither has the Corolla ever been used by the Church
      or the Plaintiff on the public highway in or for traffic or commerce, in
      connection with the business of transporting, carrying or conveying persons
      or property for hire or gain, nor for private business, nor for the
      production of income at any time.

      10. The use of Corolla on the public highways is for the personal,
      casual, ordinary and common purpose of the liberty of travel. The use of the
      public highways has been and now is in all respects reasonable and not
      unusual, and is in no sense special or extraordinary.

      11. Plaintiff's personal use of property on the public highways in the
      state of Colorado has not been declared by the Colorado General Assembly to
      be affected with a public interest or subject to administrative regulation
      or the jurisdiction of the licensing and registration provisions of C.R.S.
      title 42.

      12. To the best of his knowledge and belief, the Plaintiff has not
      knowingly, intelligently and voluntarily waived his unalienable endowment of
      personal liberty or his inalienable right in the property of the Corolla,
      including the use thereof, in exchange for a government benefit or privilege
      of protection; neither did he knowingly, intelligently and voluntarily make
      application to, or knowingly, intelligently and voluntarily grant his
      consent to support either the Department to be governed by or subject to the
      licensing and registration provisions of article 3 of C.R.S. title 42, or
      the People of the State of Colorado acting by and through any of its
      administrative agencies, and particularly the Department of Revenue and
      Colorado State Patrol; nor is he now, nor has he ever knowingly, voluntarily
      and intentionally been a licensee or subject of the Department, neither is
      his personal liberty, nor has his property in the Corolla, or use thereof,
      ever been knowingly, voluntarily and intentionally subjected to the
      administrative jurisdiction thereof.

      13. The representations made by the Department to the Trial Court, that
      identifying numbers "92-117-7671" or "E661449" are valid license or
      identification numbers lawfully assigned to administrative driving records
      maintained by the Department on the Plaintiff are false or fraudulent,
      arbitrary and capricious, ultra vires acts in excess of statutory authority,
      and unlawful and void. The conviction and sentencing of the Plaintiff
      appear to rest on the presumption of regularity of these representations to
      the Trial court.

      First Claim for Relief: Injunction

      14. The foregoing paragraphs are included herein as though set forth
      fully.

      15. An axiom incorporated into and made part of the fundamental law of
      Colorado provides that all men, including the Plaintiff, are endowed by the
      Creator with certain, unalienable rights, among which are personal liberty
      and property, and the use thereof; that agents of government are duty bound
      under their oath of office to serve their principal, the People of
      Colorado, by honoring and securing these most fundamental of all rights to
      each man and woman individually. See Declaration of Independence (holding
      that governments are established to secure the unalienable rights endowed in
      all men by the Creator, and that governments are established to secure these
      rights, and derive their just power from the consent of the governed);
      Section 4 of the Colorado Enabling Act (requiring that the Colorado
      Constitution not be repugnant to both the principles of the Declaration of
      Independence and the Constitution of the United States of America); United
      States Constitution articles IX and X in amendment thereto (article IX
      providing that rights enumerated in the constitution shall not be construed
      to deny or disparage others retained by the people; article X reserving
      power not specifically delegated to either the United States or the States
      respectively, to the people); Colorado Constitution Art. II, Sections
      3(providing that property and its use is an "inalienable" right);
      15(prohibiting the taking of private property for public or private without
      just compensation); 26(prohibiting involuntary servitude); 28(providing that
      constitutionally enumerated rights shall not be construed to deny or
      disparage others retained by the people); and 4 (no person shall be required
      to attend or support any ministry or place of worship, religious sect or
      denomination against his consent.)

      16. Plaintiff's personal liberty, property and use of the public
      highways are certain, unalienable rights endowed upon him by the Creator
      which can be neither aliened nor taken from the Plaintiff by the government
      without Plaintiff's consent, just compensation or due process of law. These
      rights are secured from government encroachment by Article II sections 3,
      15, 25, and 28 of the Colorado Constitution, and articles 9 and 10 in
      amendment to the Constitution of the United States.

      17. Plaintiff's personal liberty and property in the Corolla and the
      personal use public highways, is not a privilege affected with a public
      interest subject to licensing and registration by the Department of Revenue
      under the police power; and that to whatever degree his property and liberty
      may be statutorily usurped, such provision(s) is/are constitutionally infirm
      in violation of Article II sections 3, 15, 25, and 28 of the Colorado
      Constitution, and articles 9 and 10 in amendment to the Constitution of the
      United States.

      18. By bringing Gunnison County Court case #01T300 against the
      Plaintiff, the People of the State of Colorado, acting by and through its
      administrative agencies, have acted arbitrarily and capriciously in excess
      of statutory authority, and have thereby perpetrated a fraud on the county
      court, by intentionally concealing, withholding, or falsely presenting and
      representing false and misleading evidence contained in records being
      unlawfully maintained by the Department on both the Plaintiff and the
      Corolla. The Gunnison County court relied on these false and misleading
      representations to obtain the conviction upon which the Plaintiff was
      sentenced and under which he is currently incarcerated.

      19. The People of the State of Colorado, acting under color of the
      Department by and through the District Attorney of the 7th judicial
      district, has perpretated a fraud on the Gunnison County Court, by falsely
      representing to the said Court that the Plaintiff, his property, and the use
      thereof, are subject to the licensing and registration provisions of article
      3 of title 42 C.R.S.

      20. Plaintiff is entitled to declaratory and injunctive relief against
      the enforcement of the licensing and registration provisions of C.R.S. title
      42 and all administrative provisions relating thereto and dependent thereon,
      and especially C.R.S. §42-3-103 §42-3-133 et seq., and §42-2-101 et seq.,
      for the following good and sufficient reasons:

      a. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), insofar as
      pertaining to my use of the Corolla on the public highways, are invalid,
      inapplicable, or unconstitutional, and the enforcement thereof constitutes
      an improper, negligent and unconstitutional exercise of the police power.

      b. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), insofar as
      pertaining to my use of the Corolla on the public highways are revenue
      measures and improper exercises of police power.

      c. The Department lacks the capacity to enforce the licensing and
      registration provisions of C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b),
      insofar as pertaining to my use of the Corolla on the public highways.

      d. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), insofar as
      pertaining to my property in and use of the Corolla, prohibit rather than
      regulate my property in and use of the Corolla, thereby constituting a
      taking of property in violation of section 3 of article II of the
      Constitution for the State of Colorado.

      e. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), insofar as
      pertaining to my property in and use of the Corolla, prohibit rather than
      regulate my property in and use of the Corolla, thereby constituting a
      taking of property without just compensation in violation of section 15 of
      article II of the Constitution for the State of Colorado.

      f. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), insofar as
      pertaining to my property in and use of the Corolla, prohibit rather than
      regulate my use of the Corolla, thereby constituting a taking of property
      without due process in violation of section 25 of article II of the
      Constitution for the State of Colorado.

      g. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), insofar as
      pertaining to my property in and use of the Corolla, prohibit rather than
      regulate my property in and use of the Corolla, thereby constituting a
      taking of property in violation of section 28 of article II of the
      Constitution for the State of Colorado.

      h. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), insofar as
      pertaining to my liberty and property in the use of the public highway,
      prohibit rather than regulate my liberty, self-government and property in
      the use of the public highway, thereby constituting a taking of my liberty,
      self-government and property without just compensation in violation of
      section 15 of article II of the Constitution for the State of Colorado.

      i. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), insofar as
      pertaining to my liberty, self-government and property in the use of the
      public highway, prohibit rather than regulate my use of the public highway,
      thereby constituting a taking of my liberty, self-government and property
      without due process of law in violation of article II section 25 of the
      Constitution for the State of Colorado.

      j. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), insofar as
      pertaining to my liberty, self-government and property in the use of the
      public highway, prohibit rather than regulate my liberty and property in the
      use of the public highway, thereby constituting a taking of my liberty,
      self-government, and property in violation of section 28 of article II of
      the Constitution for the State of Colorado.

      k. C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), are invalid or
      inapplicable insofar as pertaining to my use of the Corolla on the public
      highways, as they pre-suppose and assert a proprietary right in the public
      highways in the state contrary to Article II section 1 of the Constitution
      for the State of Colorado.

      21. Unless this court makes a declaratory order declaring the records of
      the Department maintained on Plaintiff void, and enjoining the Department
      from enforcing C.R.S. §42-3-103 et seq., §42-3-133 et seq., and §42-2-101 et
      seq., and §42-4-1409(1), as against the Corolla, the Plaintiff will continue
      to be deprived of his Liberty and personal use his property and public
      highways without suffering the continued imposition of fines and penalties
      and imprisonment provided for violation of the provisions.

      22. The Plaintiff has no other plain, speedy or adequate remedy at law
      to prevent the wrongs herein complained of, and unless this court shall
      intervene to prevent such wrongs, I will be without remedy.

      HABEAS CORPUS/PROHIBITION

      23. The foregoing paragraphs are included herein as though set forth
      fully.

      24. Colorado Revised Statutes § 13-45-101 states in part:

      If any person is committed or detained for any criminal or
      supposed criminal matter, it is lawful for him to apply to the supreme or
      district courts for a writ of habeas corpus, which application shall be in
      writing and signed by the prisoner or some person on his behalf setting
      forth the facts concerning his imprisonment and in whose custody he is
      detained, and shall be accompanied by a copy of the warrant of commitment,
      or an affidavit that the said copy has been demanded of the person in whose
      custody the prisoner is detained, and by him refused or neglected to be
      given. The court to which the application is made shall forthwith award the
      writ of habeas corpus, unless it appears from the petition itself, or from
      the documents annexed, that the party can neither be discharged nor admitted
      to bail nor in any other manner relieved. Said writ, if issued by the
      court, shall be under the seal of the court, and directed to the person in
      whose custody the prisoner is detained, and made returnable forthwith.

      25. Colorado R. Civ. Proc.106 states in the pertinent part:

      (a) Habeas Corpus, Mandamus, Quo Warranto, Certiorari,
      Prohibition, Scire Facias and Other Remedial Writs in the District Court.
      Special forms of pleadings and writs in habeas corpus, mandamus, quo
      warranto, certiorari, prohibition, scire facias, and proceedings for the
      issuance of other remedial writs, as heretofore known, are hereby abolished
      in the district court. Any relief provided hereunder shall not be available
      in the superior or county courts. In the following cases relief may be
      obtained in the district court by appropriate action under the practice
      prescribed in the Colorado Rules of Civil Procedure: (4) Where any
      governmental body or officer or any lower judicial body exercising judicial
      or quasi­judicial functions has exceeded its jurisdiction or abused its
      discretion, and there is no plain, speedy and adequate remedy otherwise
      provided by law[.]

      26. In the absence of Plaintiff's consent to be governed by the
      Department, the People lacked just power, standing and capacity to bring the
      action against the Plaintiff, and the trial court proceeded against
      Plaintiff without just power, i.e. jurisdiction, over either the subject
      matter of the complaint or the Plaintiff, thus making void and
      constitutionally infirm the proceedings of People v. Justice, 01T300, and
      the Plaintiff's incarceration in the county jail a serious deprivation of
      his personal liberty.

      27. The subjection of Plaintiff's liberty and his personal use of
      property and of the public highway to the administrative jurisdiction of the
      Department of Revenue via the summons and complaint issued to him by
      Defendant Mess initiating the proceedings of Gunnison County Court 01T300,
      is an arbitrary and capricious ultra vires act and void.

      28. The trial court rendering judgment against Plaintiff in the matter
      of People v. Justice 01T300, lacked jurisdiction over the Plaintiff or the
      subject matter of the case, thereby making void the judgments and orders of
      the sentencing court and the Plaintiff's present incarceration in the county
      jail constitutionally infirm.

      29. The issuance by Shawn Mess of CSP Form 4, UNIFORM SUMMONS AND
      COMPLAINT OR PENALTY ASSESSMENT NO. 1682960 charging me with violations of
      C.R.S. §§ 42-4-1409, 42-2-138 and 42-3-133(1)(b), is an ultra vires act
      beyond the administrative jurisdiction of either the Department of Revenue
      or the Colorado State Patrol.

      30. The jail sentence imposed by the county court is unlawful and void
      on grounds that in the absence of just power, standing and capacity to bring
      the complaint, the filing of the complaint and the compelling of performance
      thereunder constitutes involuntary servitude by the People against the
      Plaintiff in violation of article II section 26 of the Colorado constitution
      and Article 13 in amendment to the United States Constitution.

      31. The jail sentence imposed by the county court is unlawful and void
      on grounds that in the absence of just power, standing and capacity to bring
      the complaint, by filing the complaint and obtaining a conviction against
      the Plaintiff, the People have deprived Plaintiff of his liberty in
      violation of Colo. Const. Article II section 28, and Article IX in amendment
      to the United States Constitution.

      32. The Plaintiff is entitled to immediate relief on grounds that he is
      not validly confined and because the sentencing court has performed serious
      constitutional infringements resulting in a significant loss of liberty to
      the Plaintiff.

      Second Claim for Relief: Replevin

      33. The foregoing paragraphs are included herein as though set forth
      fully.

      34. The taking of the Corolla and other personal effects by Shawn Mess
      and H & H Towing is an unconstitutional act outside the scope of
      administrative jurisdiction or authority of either the Department of Revenue
      and Colorado State Patrol. I am entitled to possession of the Corolla and
      other effects taken for the following reasons:

      a. The taking of the Corolla and other effects is unconstitutionally
      depriving me of property without due process of law in violation of Section
      25, Article 2 of the Colorado Constitution.

      b. The taking of the Corolla and other effects is unconstitutionally
      depriving me of the right of acquiring, possessing, protecting and using my
      property, in violation of Section 3 of Article 2 of the Constitution for the
      State of Colorado.

      c. The taking of the Corolla and other effects without just
      compensation constitutes an unconstitutional, inverse condemnation of
      property in violation of Article 2 Section 15 of the Constitution of the
      State of Colorado.

      d. The taking of the Corolla is an unlawful attempt to enforce revenue
      provisions by an unconstitutional exercise of the police power.

      e. The taking of the Corolla is an attempt under the police power to
      unconstitutionally force me by extortion to surrender my right of possession
      and use of the Corolla in exchange for a mere privilege to possess and use
      the same, in violation of Article II section 3 of the Colorado Constitution.

      f. H&H Towing's refusal to return the Corolla to me unless I pay the
      tow and impound fee is beyond the constitutional or statutory jurisdiction
      or authority of either, insofar that such condition unconstitutional compels
      me to waive my property in the Corolla in exchange for the privilege of
      ownership therein in violation of Article III sections 3 and 28 of the
      Colorado Constitution.

      g. To the extent that H&H Towing's conditional refusal to return the
      Corolla may constitute an exercise of a policy of the Colorado State Patrol,
      such policy is unconstitutional on grounds that it conditions my otherwise
      inalienable right of property in the Corolla on the privilege of ownership
      provided by the Certificate of Title in violation of Article II sections 3
      and 28 of the Colorado constitution. I reserve the right to amend this
      complaint to include the Colorado State Patrol as Respondent should such
      policy be revealed during the course of the proceedings as the basis for the
      refusal to release the Corolla.

      Wherefore, I respectfully request this court to issue orders:

      1. declaring the statutes of concern herein unconstitutionally infirm
      as against the Corolla;

      2. declaring the immediate and unconditional return of the Corolla and
      other effects taken to the Plaintiff;

      3. declaring the Corolla immune from the provisions of the licensing
      and registration provisions of C.R.S. title 42 sections 1-4;

      4. enjoining the Department of Revenue from enforcing C.R.S. §42-3-103
      et seq., §42-3-133 et seq., and §42-2-101 et seq., §42-4-1409 as against the
      Corolla.

      5. Awarding cost, damages and other relief as to this court may seem
      meet and proper.

      This ____________ , ________ , in the year of our Lord, two thousand three.

      __________________________
      David Justice
      c/o United States Post Office
      General delivery
      Gunnison, Colorado, 81230

      Subscribed and sworn to before me this _____________ , ________in the year
      of our Lord two thousand one.


      _________________________________
      ___________________________________________________
      Notary Public My Commission Expires


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