8398RE: [tips_and_tricks] Re: Case law on tendering payment (gold)
- May 1, 2005
Note: Mr Bear sorry about attaching case law I will not send attachments to group when for speific members. Thanks for the heads up.
The enactment argument is a beautiful legal pricnipal. I defined it in my Winning Before you Plea packet along with misnomer argument, the procedure verified complaint argument, and the common law verified complaint argument (no victum no crime). The enactment argument does take some good legal research to pull off and I have always gave a procedure reason to dismiss the charge so as to give court a way out. Iin most states that I know of it would be a question that the court would most likely require to be address by state supreme court first if you where to challenge the constitutionality of statute being charge with, but if use argument as grounds to attach charge for defects in the prosecution for missing valid statement of violation then this is simply procedural question. Below is segment from packet of mine I hope you find this interesting.
(From Winning before you Plea)
Layman�s definition: The enactment argument is when the books that contain the law are missing an enactment clause on the face of the law or the law itself failed to be enacted properly. One may think that this is trivial, but for example in Illinois the enactment clause was on the face of the law books from 1850 to 1975 that in itself should show its importance not to mention it is a piece of evidence the court then have to take mandatory judicial notice of. So what is the enactment clause? It simply is a statement that is required to be including in all bills (laws) in order to show the public that the law has been enacted. Most states require it in their constitution (In Iowa it is found in Art 3 sec 1 of their constitution In Illinois it is Art. 4 section 8) some do not. The courts have ruled that if the law books (statutes) lack this simple requirement they are not valid laws since courts are to interupt statutes as a whole.
Legal Definition: I will use Iowa and Illinois as an example
General assembly. SECTION 1. The legislative authority of this state shall be vested in a general assembly, which shall consist of a senate and house of representatives: and the style of every law shall be. "Be it enacted by the General Assembly of the State of Iowa ."
Passage of Bills section 8 The enacting clause of the laws of this State shall be, �Be it enacted by the People of the State of Illinois , represented in the General Assembly.�
Application: In order to use this argument correctly one must apply their states case law in several areas of law. First, find when your state stopped placing the enactment clause in their law books. The reason for this is, when you can show that your state had the enactment clause in their books at one time, you can force the court to take judicial notice of that undisputable fact. Second, one must find case law on how the constitution of the state is supreme authority in your State court and all laws not pursuant to it are void. The reason for this is to force the court to abide by the constitutional requirements for statutes to have an enactment clause on the face of the law. Third, one must find case law on how the courts are required to read, construe, and apply statutes. The reason for this is that the court will not be able to say that the law has the enactment clause, but it is just not on the face of the law when they interpret the application of the enactment statute. Finally, give the court a way out by allowing them to dismiss your case on a procedural defect instead of trying to force the issue itself.
Sample format see motion to dismiss at end of this packet
>From: "Cyril Grosse" <cyril@...>>Reply-To: firstname.lastname@example.org>To: <email@example.com>>Subject: RE: [tips_and_tricks] Re: Case law on tendering payment (gold)>Date: Fri, 29 Apr 2005 19:56:04 -0700>>
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