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JUDICIAL or MINISTERIAL

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  • Patrick M
    Given the FACT that the superior courts in California are operating under RULES OF COURT, the EVIDENCE CODE, SENTANCING GUIDELINES & the DECISIONS of the
    Message 1 of 3 , Jun 8, 2008

      Given the FACT that the “superior courts” in California are operating under RULES OF COURT, the EVIDENCE CODE, SENTANCING GUIDELINES & the DECISIONS of the California & U.S. SUPREME COURTS, would NOT that mean that those “superior courts” ARE ACTUALLY INFERIOR COURTS of LIMITED JURISDICTION & thereby operating in a MINISTERIAL CAPACITY & NOT a JUDICIAL capacity?

       

      MAXIM OF LAW:  The power which is derived cannot be greater than that from which it is derived.

      INFERI0R. One who in relation to another has less power and is below him; one who is bound to obey another. He who makes the law is the superior; he who is bound to obey it, the inferior. 1 Bouv. Inst. n. 8.

      INFERIOR COURTS. By this term are understood all courts except the supreme courts. An inferior court is a court of limited jurisdiction, and it must appear on the face of its proceedings tliat it has jurisdiction, or its proceedings. will be void. 3 Bouv. Inst. n. 2529

      MINISTERIAL. That which is done under the authority of a superior; opposed to judicial; as, the sheriff is a ministerial officer bound to obey the judicial commands of the court.
       
      2. When an officer acts in both a judicial and ministerial capacity, he may be compelled to perform ministerial acts in a particular way; but when he acts in a judicial capacity, he can only be required to proceed; the manner of doing so is left entirely to his judgment. See 2 Fairf. 377; Bac. Ab. Justices of the Peace, E; 1 Conn. 295; 3 Conn. 107; 9 Conn. 275; 12 Conn. 464; also Judicial; Mandamus; Sheriff.  Bouvier's 1856 Edition.
       
      Ministerial act. That which is done under the authority of a superior; opposed to judicial.  That which involves obedience to instructions, but demands no special discretion, judgment, or skill.  Arrow Exp. Forwarding Co. v. Iowa State Commerce Commission, 256 Iowa 1088, 130 N.W. 2d 451, 453.  An act is 'ministerial' when its performance is positively commanded and so plainly prescribed as to be free from doubt.  Brenneman Co. v. Schramm , D.C. Pa. , 473 F. Supp. 1316, 1319.  Official's duty is 'ministerial' when it is absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.  Long v. Seabrook, 260 S.C. 562, 197 S.E., 2d 659, 662. One which a person or board performs under a given state of facts in a prescribed manner in obedience to the mandate of legal authority without regard to or the exercise of his or their own judgment upon the propriety of the act being done. State Dept. of Mental Health v. Allen. ,  Ind.   App., 427 N.E. 2d 2, 4;  Gibson v. Winterset Community School Dist., 258 Iowa 440, 138 N.W. 2d 112, 115. Black's Law Dictionary, 6th Ed., p. 996.
       
      Ministerial duty.  One regarding which nothing is left to discretion -- a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist.  Black's Law Dictionary, 6th Ed., p. 996.

       

      Ministerial office.  One which gives the officer little or no discretion as to the matter to be done, and requires him to obey mandates or a superior. It is a general rule that a judicial office cannot be exercised by a deputy, while a ministerial office may.  Black's Law, 6th Ed., p. 1083.
       
      Ministerial function. A function as to which there is no occasion to use judgment or discretion. Hood Motor Co., v. Lawrence , La. , 320 So. 2d 111, 115. Black's Law Dictionary, 6th Ed., p. 996.

       

      Patrick in California

       

      "It ain't what ya don't know that hurts ya. What really puts a hurtin' on ya is what ya knows for sure, that just ain't so." -- Uncle Remus

       

    • Frog Farmer
      ... I disagree that you stated a fact. Please provide proper names and offices of three people you believe exercise that power. If they have no oath on file,
      Message 2 of 3 , Jun 8, 2008
        Patrick M wrote:

        > Given the FACT that the "superior courts" in California are operating
        > under RULES OF COURT, the EVIDENCE CODE, SENTANCING GUIDELINES & the
        > DECISIONS of the California & U.S. SUPREME COURTS,

        I disagree that you stated a fact. Please provide proper names and
        offices of three people you believe exercise that power. If they have
        no oath on file, you would automatically be incorrect. Will you agree
        to pay the certification fee if your contestants prove to be
        unqualified?

        > would NOT that mean
        > that those "superior courts" ARE ACTUALLY INFERIOR COURTS of LIMITED
        > JURISDICTION & thereby operating in a MINISTERIAL CAPACITY & NOT a
        > JUDICIAL capacity?

        California used to have "Municipal courts" for the inferior court, and
        Superior Courts for the court of original jurisdiction. Then they
        "merged" the two into one Superior Court. It is up to us to know which
        jurisdiction they now are attempting to enforce and whether or not they
        have the power to do it. Our rights could not be changed by merely
        merging two courts for economic reasons. But they can look like they
        were. The same goes for the New York lawyers' merging of courts of law
        and courts of equity and expecting users to know which one's rights
        applied to their cases.

        It is important for one to be able to differentiate a judicial duty from
        a ministerial duty, because only ministerial duties are enforceable by
        writs of mandate/prohibition.

        Regards,

        FF
      • Patrick M
        Every ALLEGED judge in my county that I know of (approximately 20) has FAILED to take the OATH OF OFFICE (and every LAW ENFORCEMENT agent EXCEPT the SHERRIF)
        Message 3 of 3 , Jun 9, 2008

          Every ALLEGED "judge" in my county that I know of (approximately 20) has FAILED to take the OATH OF OFFICE (and every LAW ENFORCEMENT agent EXCEPT the SHERRIF) that is MANDATED by the Constitution & has also FAILED to file it as REQUIRED by law.

           

          GOVERNMENT CODE 1360.  Unless otherwise provided, before any officer enters on the duties of his office, he shall take and subscribe the oath or affirmation set forth in Section 3 of Article XX of the Constitution of California .

          http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=01001-02000&file=1360-1369 

           

          GOVERNMENT CODE 1192.  When not otherwise provided for, within 10 days after receiving notice of their appointment, deputies and other subordinate officers shall take and file an oath in the manner required of their principals.

          http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=01001-02000&file=1190-1195 

           

          GOVERNMENT CODE 1363.  (a) Unless otherwise provided, every oath of office certified by the officer before whom it was taken shall be filed within the time required as follows:

             (1) The oath of all officers whose authority is not limited to any particular county, in the office of the Secretary of State.

             (2) The oath of all officers elected or appointed for any county, and, except as provided in paragraph (4), of all officers whose duties are local, or whose residence in any particular county is prescribed by law, in the office of the county clerk of their respective counties.

             (3) Each judge of a superior court, the county clerk, the executive officer or court administrator of the superior court, and the recorder shall file a copy of his or her official oath, signed with his or her own proper signature, in the office of the Secretary of State as soon as he or she has taken and subscribed his or her oath.

             (4) The oath of all officers for any independent special district, as defined in Section 56044, in the office of the clerk or secretary of that district.

             (b) Every oath of office filed pursuant to this section with the Secretary of State shall include the expiration date of the officer's term of office, if any.  In the case of an oath of office for an appointed officer, if there is no expiration date set forth in the oath, or the officer leaves office before the expiration date, the appointing authority shall report in writing to the Secretary of State the officer's date of departure from office.

          http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=01001-02000&file=1360-1369 

           

          And as such they are operating WITHOUT any LAWFUL authority and their ACTS are VOID.

           

          GOVERNMENT CODE 1770.  An office becomes vacant on the happening of any of the following events before the expiration of the term:

          (i) His or her refusal or neglect to file his or her required oath or bond within the time prescribed.

          http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=01001-02000&file=1770-1782

           

           

          "We are hard pressed, however, to hold that one with authority to preside over litigation and adjudicate the interests of the litigants in a court room in the State of Texas should, or can, be exempt from taking an oath to preserve, protect, and defend the Constitution and laws of the United States and of the State of Texas . . . . [8] Because Judge Woodard was required to take the constitutional oaths, but did not do so, all judicial actions taken by him in the case below were without authority. See Ater, 845 S.W.2d at 337 (actions taken by judge who failed to meet all requisites for qualification as retired judge subject to assignment held null and void). The Judgment Nisi therefore is without effect. . . . we feel bound to observe that the Court of Criminal Appeals has held in a similar situation, involving an "alternative" municipal judge who had never taken the oaths of office, that: "without the taking of the oath prescribed by the Constitution of this State, one cannot become either a dejure or de facto judge, and his acts as such are void." PRIETO BAIL BONDS v. STATE, 994 S.W.2d 316, 320, 321 (May 27, 1999).

          http://www.independentamericans.org/CLJRM_Oaths_Prieto.htm

           

           

          "[3] Under a constitutional government such as ours, there can be no such thing as an OFFICE DE FACTO, as distinguished from an OFFICER DE FACTO. Hence, the general rule that the acts of an officer de facto are valid has no application where the office itself does not exist. BOYER v. FOWLER, 1 Wash. Terr. 101 (1860); 3 E. McQuillin, THE LAW OF MUNICIPAL CORPORATIONS 12.104 (3d ed. rev. 1973); DE JURE OFFICE AS CONDITION OF A DE FACTO OFFICER, Annot., 99 A.L.R. 294 (1935)."  HIGGINS v. SALEWSKY, 17 Wn. App. 207, 210, 211, 212, 213, 562 P.2d 655 (March 28, 1977).

          http://www.mrsc.org/mc/courts/appellate/017wnapp/017wnapp0207.htm   

           

           

          “Judge Christian had not qualified for his new office. [6] Until an officer-elect or officer-designate takes the oath [238 Cal.App.2d 256] of office and gives whatever bonds are required, he is not authorized to discharge the duties of the office. He is not an incumbent. ( Hull v. Superior Court, 63 Cal. 174, 176.)

          Cases involving de facto judges are to be distinguished from those cited by appellant, such as Cadenasso v. Bank of Italy, 214 Cal. 562 [6 P.2d 944], in which the judge's title to office is not challenged, but a judgment by a judge disqualified by reason of his ownership of stock in a corporate litigant has been held completely void because of the absolute prohibition of section 170 of the Code of Civil Procedure.”  ENSHER, ALEXANDER & BARSOOM, INC., v. MARTHA ENSHER (1965), 238 Cal.App.2d 250

          http://login.findlaw.com/scripts/callaw?dest=ca/calapp2d/238/250.html

           

           

          "Given the basic purpose of the oath it follows in reason that the requirement of execution of the oath "before" entering upon the duties to be undertaken establishes the execution of the oath as a condition precedent to a lawful undertaking of those duties. It becomes, in a sense, a matter of eligibility, for one who cannot take the oath, in effect, is rendered ineligible for public employment. (Cf. Reed v. Hammond, 18 Cal.App. 442 [123 P. 346]; Searcy v. Grow, 15 Cal. 117.) While the employment which is the subject of this appeal is undoubtedly not a "public office" as contemplated by Government Code, section 1303 (Hirschman v. County of Los Angeles, 39 Cal.2d 698 [249 P.2d 287, 250 P.2d 145]), nevertheless the importance of the oath of office as a prerequisite in the eyes of the Legislature is indicated by its action in declaring the exercise of the function of a public office before taking the oath of office to be a misdemeanor.

          ...

          When called upon to construe laws requiring execution of the oath and filing of a bond within a certain period of time the California courts have held them to be mandatory (see Norton v. Lewis, supra, 34 Cal.App. 621; People v. Perkins, 85 Cal. 509, 511 [26 P. 245]; Hill v. New Amsterdam Casualty Co., 105 Cal.App. 156, 158-159 [286 P. 1103, 158 A.L.R. 639])."  Smith v. County Engineer , 266 Cal.App.2d 645 (1968)

          http://login.findlaw.com/scripts/callaw?dest=ca/calapp2d/266/645.html  

           

          And they are ACTING under COLOR OF OFFICE & COLOR OF LAW to WILLFULLY DEPRIEVE us of our RIGHTS & their ACTS are CRIMINAL and a PERVERSION of justice.

           

          Title 18, U.S.C., Section 242
          Deprivation of Rights Under Color of Law

          This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

          This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

          Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

          Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

          http://www.fbi.gov/hq/cid/civilrights/statutes.htm#section242

           

          18 USC 242. Deprivation of rights under color of law

          Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

          http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000242----000-.html 

           

           

          42 USC 1983. Civil action for deprivation of rights

          Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia .

          http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001983----000-.html

           

           

          PENAL CODE 96.5.  (a) Every judicial officer, court commissioner, or referee who commits any act that he or she knows perverts or obstructs justice, is guilty of a public offense punishable by imprisonment in a county jail for not more than one year.
             (b) Nothing in this section prohibits prosecution under paragraph (5) of subdivision (a) of Section 182 of the Penal Code or any other law.

          http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=92-100

           

          And in many cases they are engaged in a CONSPIRACY since they are TWO or THREE parties involved (the ALLEGED “judge”, the POLICE and/or the DISTRICT ATTORNEY’S office).

          Title 18, U.S.C., Section 241
          Conspiracy Against Rights

          This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).

          It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.

          Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.

          http://www.fbi.gov/hq/cid/civilrights/statutes.htm#section242

           

           

          18 USC 241. Conspiracy against rights

          If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

           

          If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

           

          They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

          http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000241----000-.html 

           

           

           

          42 USC 1985. Conspiracy to interfere with civil rights

          (3) Depriving persons of rights or privileges

          If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

          http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001985----000-.html

           

          And having KNOWLEDGE of all of this makes their FAILURE to take ACTION also makes them CIVILLY LIABLE.

           

          42 USC 1986. Action for neglect to prevent

          Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.

          http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001986----000-.html

           

          Patrick in California

           

          "Oh Lucy! - You Gotta Lotta'Splainin To Do" Ricky Richardo

           

          --- In tips_and_tricks@yahoogroups.com , "Frog Farmer" <frogfrmr@...> wrote:

          >  

          > Patrick M wrote:

          >

          > > Given the FACT that the "superior courts" in California are operating

          > > under RULES OF COURT, the EVIDENCE CODE, SENTANCING GUIDELINES & the

          > > DECISIONS of the California & U.S. SUPREME COURTS,

          >

          > I disagree that you stated a fact.  Please provide proper names and

          > offices of three people you believe exercise that power.  If they have

          > no oath on file, you would automatically be incorrect.  Will you agree

          > to pay the certification fee if your contestants prove to be

          > unqualified?

          >

          > >

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