11914Sample Notice and Demand challenging judicial officer's bond.
- Aug 7, 2006Below is an example of a Notice and Demand for production of the Judge's Bond. It is reproduced in its entirety except that I have modified the heading. This was found at : http://www.famguardian.org\Subjects\LawAndGovt\ChallJurisdiction\ChallBond-Nevada.htm
SAMPLE NOTICE AND DEMAND
COMES NOW, <<NAME REDACTED>>, Defendant, following my duty to keep the government from falling into error does hereby give Warning and Notice that if the justice of the peace that has received this Warning and Notice proceeds to do ANY of the duties of his of office that he is acting without any authority to act as no bond, meeting the statutory requirements for a bond (NRS 282.040) is, to the best of <<NAME REDACTED>>’s knowledge (as of February 2005 AD), on file at the County Clerk’s office as required, (NRS 4.030). To enter upon any duty, concerning this defendant, while no lawful bond is on file, is to act under color of law and is a possible violation of State Secured Liberty interest, Acting without authority and under color of law and may be stripped of any and all judicial immunity. Such an action would be actionable under 42 U.S.C 1983. Do not proceed without a bond. The de facto standing of the Justices of the Peace in Clark County have hereby been challenged.
NRS 282.040 Form. All official bonds required by law of officers shall be:
1. In form joint and several.
2. Made payable to the State of Nevada.
3. In such penal sum and with such conditions as may be required by law.
Can it be doubted?! If the judge in this courtroom acts upon the duties of the office without a bond then it not only can be doubted but the law will be a legislative farce.
NRS 4.030 Oath and bond of justice of the peace. Each justice of the peace elected or appointed in this state shall, before entering upon the duties of his office:
Take the oath prescribed by law.
Execute a bond to the State of Nevada, to be approved by the board of county commissioners, in the penal sum of not less than $1,000 nor more than $5,000, as may be designated by the board of county commissioners. The bond shall be conditioned for the faithful performance of the duties of his office, and shall be filed in the office of the county clerk.
SHALL VS. MAY
The courts have consistently held that the use of the word “shall” presumptively indicates mandatory, rather than directory statutory terms and, therefore, creates a duty. There is no discretion granted in the matter of properly and timely executing one’s bona fides required to hold public office. It is noted that when the word ‘shall’ is used in a command to a public official, it excludes the idea of discretion. See STATE ex rel. ATTORNEY GENERAL v. LAUGHTON, 19 Nev. 202, 8 P. 344 (1885).
The requirement that the Bond be made out to the State of Nevada is stated in NRS Chapter 282:
OFFICIAL BONDS: GENERAL PROVISIONS
NRS 282.040 Form. All official bonds required by law of officers shall be:
2. Made payable to the State of Nevada.
Note the specific word “ALL” in that statute. This means that it applies to a Blanket Bond as well as to bonds supplied by individual officers:
NRS 282.163 Blanket bonds. A blanket fidelity bond or blanket position bond may be furnished at county expense for all elected county officers except the county treasurer. This blanket bond must be in an amount not less than $10,000, and conditioned on the faithful performance of the respective duties of the several officers covered. The board of county commissioners may also authorize similar blanket bonds for such other county officers or employees as it may designate.
NRS 282.080 Approval, filing and recording of official bonds. The official bonds of officers shall be approved and filed as follows:
2. The official bonds of all county and township officers shall be approved by the board of county commissioners, and filed and recorded in the office of the county clerk of their respective counties,
The Nevada Supreme Court was very clear about the importance of such bonds that are conditioned upon the faithful performance of his duties that SHALL be filed “before entering upon the duties of his office.” Interestingly enough the seminal case was way back only 20 years after Defendant’s beloved Nevada became a Republic and a State. It was in STATE ex rel. ATTORNEY GENERAL v. LAUGHTON, 19 Nev. 202, 8 P. 344 (1885) that the Supreme Court of Nevada made it very clear how important a proper bond was if an officer wanted to hold an office that required such a bond. They made it perfectly clear that the Legislature did not make such laws to be filed according to an office holders “caprice or whim” but were, indeed, completely mandatory. The Court gave a rather lengthy explanation that the defendant feels is important. Defendant has includes his comments upon this case and how they relate to this question today interspersed with the courts ruling:
“On the first of March, 1883, an act was passed, to take effect immediately, which provides that "before entering upon the duties of the office (state librarian) the lieutenant governor, as ex officio state librarian, shall execute an official bond in the sum of one thousand dollars, with sureties to be approved by the governor, conditioned for the faithful discharge of his duties.”
Did the office of state librarian become vacant in law, by reason of a failure on the part of respondent to file a new or additional bond within the time prescribed after the filing by D. L. Bliss, in the office of the governor or secretary of state, of a legal statement, and after personal service of a legal notice? There is nothing in the constitution of this state prohibiting respondent from holding the office of lieutenant governor and the office of state librarian.
There is a difference today in that there is nothing in the law that calls for the ouster of a Justice of the Peace for not filing a proper bond. The law only restrains the Justice from “entering upon the duties of his office.” He is still holds the office he just cannot enter into its duties.
“Such being the case, the legislature had power to create the last-named office, and make the lieutenant governor ex officio state librarian. If the legislature had the powers mentioned, it must follow that it had authority also to impose reasonable conditions precedent to the holding of the legislative office.
Once again the Nevada’s Supreme Court’s reasoning is flawless.
“It had power to require the giving of a bond to secure a faithful discharge of the duties of that office.”
And that is just what the Legislature did concerning Justices of the Peace.
“It could provide that such bond should be kept good, and in case of failure to do so, that the office should become vacant. When the statute of February 17, 1883, making the lieutenant governor ex officio state librarian, and the statute of March 1, 1883, requiring the lieutenant governor, as ex officio state librarian, to give a bond, were passed, there were general statutes declaring under what circumstances all offices should become vacant, providing for the release from liability of any surety, and prescribing the result of a failure to file a new or additional bond within the time stated, after the filing by a surety of a legal statement in the office of the governor or secretary of state, and the service of a legal notice upon the officer.
“These different statutes must be construed together, and in such a manner, if possible, as to carry out the legislative intent. When the statute requiring the lieutenant governor, as ex officio state librarian, to give a bond was passed, it was the law of this state that any or all of respondent's sureties might be relieved from liability by doing certain things, and that a failure of respondent to file a new or additional bond would render the office of state librarian vacant. The legislature knew the law, and with such knowledge required the bond. In view of the then existing law, can it be said that the legislature intended to say respondent might give a bond or not, according to his caprice or whim? Were they acting a legislative farce when they provided that he should secure the state in the faithful discharge of the duties of this most important office? We have no right to think so, and in our opinion the natural construction of the different statutes referred to will not only relieve the legislature of a farcical intent, but it will also render operative and beneficial all the statutes touching the subject in hand.”
The question must now be asked: Was the legislature acting a legislative farce when they wrote the law saying that a Justice of the Peace SHALL, before entering upon the duties of his office execute a bond payable to the State of Nevada? Was it allowing for Clark County’s “caprice or whim” when they required that the blanket bond be, “Made payable to the State of Nevada?” Are government officers required to follow the law or can they also act with “caprice and whim” with impunity?
“Sections 2633, 2929, 2930, and 2931 are not repugnant to section 5 the act of March 1, 1883. It is said to be so because the last-named law declares that the lieutenant governor shall be ex officio state librarian at all events, and permits no other person to fill the office or perform its duties; and consequently it is claimed that the requirement of a bond is a mere directory provision, which may be disregarded with impunity by respondent, except so far as he might be amenable to the criminal laws of the state.”
Will this “the requirement of a bond is a mere directory provision” be the position of Clark County concerning the Blanket Bond? Will the judge claim he did not know the law required him to get a bond if the County failed to do so? Will the blanket bond requirement that it must be made payable to the State of Nevada be disregarded with impunity?
“It is true, the legislature declared that the lieutenant governor should be ex officio state librarian; but it was also declared that, before entering upon the duties of the office, the lieutenant governor, as ex officio state librarian, should execute a bond. The first provision was intended to be dependent upon the last. It was not intended that the lieutenant governor should hold the ex officio office without giving and keeping good his bond.
The same is as true today as it was in 1885 AD. Before entering upon the duties of the office the Judge or the County SHALL execute a bond made payable to the State of Nevada. Not payable to Clark County and not payable to whomever or no one specifically but specifically to the State of Nevada and NO ONE ELSE if he did not then obviously he could not enter upon the duties of the office. If the judge were to enter into the duties of his office without such a bond then the legislature would have been “acting a legislative farce” or the judge would be acting under color of law.
“Suppose the legislature had created the office of state librarian, and declared that a certain person named in the statute should hold the office until the next general election, but had provided that he should execute an official bond, with sureties, before entering upon the duties of the office:”
Amazing is it not how history is nearly repeating itself? This is almost exactly what has occurred with the office of Justice of the Peace and Sheriff here in Clark County.“ Can it be doubted that in such case the person named would have been obliged to file his bond and keep it good, and that in case of failure to do so there would have been a vacancy, which, under section 8 of article 5 of the constitution, it would have been the governor's duty to fill?”
”In 1869 "an act to create the county of White Pine, and provide for its organization," was passed by the legislature. It provided, among other things, that certain named persons should be the officers of the county until the next general election. M. W. Kales was made county treasurer. By the act itself no bonds were required. St. 1869, 108. But by the general law relating to county treasurers, each county treasurer, before entering upon the duties of his office, was required to take an official oath and give a bond. The same was true of other officers. Unquestionably their tenure of office depended upon a compliance with the general law governing qualification, and yet the act creating the county declared that they should be the county officers until the next general election. If the treasurer had said, "I will hold my office without taking any oath or filing any bond, because the latest statute upon the subject declares that I shall be treasurer at all events, and permits no other person to fill the office or perform its duties," he would have found out his error.
Unquestionably depended upon a compliance with the general law governing qualification?! Will “he have found his error” in this day and age?” If Defendant’s 40 years of experience with the government holds true defendant must doubt that any justice of the peace in Clark County “will find his error.” But since hope flames eternal in the human breast Defendant shall once again attempt to get the government to actually follow the law instead of making up some excuse or caveat to allow themselves to act with “caprice and whim” while subjecting accused Nevada Citizens, without the benefit of office, to a higher standard. I pray for the day when the State of Nevada returns to the time, like 1885 AD, when the Supreme Court held government official to a higher standard instead of trampling the Constitution like they did in GUINN v. The LEGISLATURE 119 Nev. 460, 76 P.3d 22. The Court of 1885 AD set a standard for government officials and what a bond requirement really means that Defendant has not found in this modern era, when it ruled:
“It follows from the foregoing that respondent is not entitled to hold and enjoy the office of state librarian of the state of Nevada, and, as to that office, a judgment of ouster must be entered against him, with costs. It is so ordered.” STATE ex rel. ATTORNEY GENERAL v. LAUGHTON, 19 Nev. 202, 8 P. 344 (1885)Does the County Insurance Meet the Standards set by the State?
Naturally for any Blanket Bond to be legitimate it would have to meet the requirements of an OFFICIAL BOND as established by the Nevada Legislature. Both of these statutes are found in chapter 282. The Blanket Bond is an official bond so the general provisions apply. These two statutes should be considered as a whole. See Supreme Court of Nevada, UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA v. NEVADANS FOR SOUND GOVERNMENT, 100 P.3d 179, (2004) Key Notes: “In construing a statute, a court should consider multiple legislative provisions as a whole.” Also find in the Key Notes: “The language of a statute should be given its plain meaning unless doing so violates the spirit of the act.”
Please note that the alleged blanket bond is not a bond but an insurance policy and states that the insured is Clark County and is not “made payable” to the State of Nevada. It is therefore obviously defective. This is important when we note that the Official Bonds are required by law to be, “Made payable to the State of Nevada.” (See Exhibit 1) The insurance policy is not made payable to anyone specific and is not a bond at all.
We must also note the difference between the requirement for the Bond for a Justice of the Peace and one for the District Attorney of Clark County where the Legislature made it clear that the District Attorney’s bond was to be made out to the “county” and not the State. No such exception to the official bond rule is found in that of Justices of the Peace.
NRS 252.030 Bond. Unless a blanket fidelity bond is furnished by the county, before entering upon the duties of his office, the district attorney shall execute and file with the county clerk a bond to the county, conditioned for the faithful performance of his duties, the penalty of the bond to be fixed by the board of county commissioners.
Whereas the marked difference in the bond of the Justice of the Peace:
NRS §4.030 Oath and bond of justice of the peace. Each justice of the peace elected or appointed in this state shall, before entering upon the duties of his office: . . . Execute a bond to the State of Nevada,
The question must be asked: Are Sovereign Citizens of Nevada to be held to a higher standard than public servants? Are people working as contractors in Nevada allowed to enter upon their duties without a bond or license to be considered de facto contractors? Are vehicle driver’s allowed to enter upon their duties without a license just de facto drivers? Are attorneys allowed to enter upon their duties that have not passed the bar just de facto attorneys? Would a street corner drug dealer actually be a de facto pharmacist if held to same standard as so many government officials today. How can a judge be allowed to have de facto standing even after it has been pointed out that he is not de jure and just a de facto judge? How can man claiming to be a justice sit in judgment on others until after he becomes a de jure judge? How can the servant be held to a lower standard than the Sovereign Citizen? To enter upon the gutis of the office without a bond is to violate the Equal Protections clauses of our constitutions.
The defendant and members of his family have been trying to get the County and the State of Nevada to take care of this OBVIOUS flaw in this bond for over eight years. (See Exhibits 2 and 3) Defendant has contacted State and County officials including the Sheriffs office, the District Attorney’s office, the Legislative Counsel Bureau, Senators Sandra Tiffany and Bob Beers and other Senators and Assemblymen. For years the County did not even have the alleged blanket bond on file at the County Clerks office and through Defendant’s persistence they finally placed the defective insurance policy in the County Clerk office even though it was not properly filed. Will the defendant be treated by the County and State with such leniency as they treat themselves?
It is obvious that Bonds can be executed by Clark County elected officials. (See Exhibit 4)
President Nixon was pardoned. Kathy Augustine was let off with a small penalty. It has been reported that Erin Kenny was allowed to keep at least part of the bribe money from a strip club owner. And these were government officials that actually got caught. Equality under the law has become a joke with two classes of people.
The De Facto Doctrine! Does It Apply?
The de facto officer doctrine dates back to 1431. The essence of the de facto officer doctrine is that one who claims to be a public officer while in possession of an office and ostensibly exercising its function lawfully and with the acquiescence of the public is a de facto officer whose lawful acts, so far as the rights of others are concerned, are, if done within the scope and by the apparent authority of the office, as valid and as binding as if the officer were legally qualified for the office and in full possession of it. Ancient though the doctrine may be, it nevertheless serves the needs of contemporary society. Because the statutes do not define de facto officers, the common law definition applies.
DE FACTO: An officer de facto is one who performs the duties of an office with apparent right, and under claim and color of an appointment, but without being actually qualified in law so to act. 37 Me. 423.
When a special judge is duly elected, qualifies, and takes possession of the office according to law, he becomes judge de facto, though his official oath is not filed as required by law; and the proceedings of the court, if unchallenged during his incumbency, cannot afterwards be questioned collaterally; 111 Mo. 542. See 65 Vt. 399; 49 Ark. 439; 96 Pa. 344; 86 Ill. 283.
Reference is pertinently made to the general rule that where the law creating a public office is declared void, the acts of an officer continuing to function thereunder will, until he is legally succeeded, be upheld as the acts of a de facto officer. There cannot be a de facto officer unless there is a de jure office. The law in this respect is rather succinctly stated in a supreme court of the United States opinion:
“The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until, in some regular mode prescribed by law, their title is investigated and determined.” Norton v. Shelby County, 118 US 425, 441, 442 (6 S Ct 1121, 30 L ed 178) (1886).
Where a public official is only acting under color of authority, his exercise of power is merely de facto rather than de jure. The Legislature’s intent, therefore, could not be more clearly stated. Any official who is required to execute a bond to the State of Nevada and does not is simply unqualified and unauthorized to act unless and until he does the same.
“The core purposes of the doctrine are served if a plaintiff challenging government action on the ground that the officials taking that action improperly hold office, meets two requirements. First, the plaintiff must bring his action at or around the time that the challenged action is taken. Second, the plaintiff must show that the agency or department involved has had reasonable notice under all the circumstances of the claimed defect in the official's title to office. Andrade v. Lauer, supra.
However the de facto doctrine has come under attack See SILVER, v. UNITED STATES POSTAL SERVICE, 951 F.2d 1033, Ninth Circuit (1991).
“In the face of circuit precedent, the District of Columbia Circuit has reluctantly adopted a narrow interpretation of the doctrine that allows collateral attacks in some circumstances. See Andrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984). The continued vitality of the de facto officer doctrine is in serious doubt, however; in both Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), and Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), the Supreme Court entertained collateral challenges based on the Appointments Clause without ever mentioning in either case the de facto officer doctrine.”
One thing is certain. The de facto officer doctrine ONLY applies, “if unchallenged during his incumbency.” And “First, the plaintiff must bring his action at or around the time that the challenged action is taken.” Andrade v. Lauer, supra. The de facto standing of the Justices of the Peace in Clark County have hereby been challenged.
The following statement by Justice Brandies is a statement that has great personal meaning to the defendant and is very applicable to this motion.
“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law, scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.” U.S. Supreme Court Justice Brandeis in Olmstead v. United States, 277 US 433, 485, 48 S.Ct. 575 (1928) (Emphasis added)
The only relief that can be granted is for the Justice of the Peace in this matter to admit that the County has failed to get a proper Blanket Bond and that he cannot, therefore, enter into the duties of his office until a proper bond is filed with the County Clerk’s office.
Dated: March 31st, in the year of our Lord, 2005 and in the year since our Independence of the United States of America 229.
Respectfully given and signed by,
<<NAME REDACTED>> without prejudice