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Re: Purported

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  • Patrick M
    People might want to research the “de facto doctrine” because it explains how a lot of seeming UNLAWFUL ACTS are UPHELD. “4] One who claims to be a
    Message 1 of 7 , Nov 9, 2009

      People might want to research the “de facto doctrine” because it explains how a lot of seeming UNLAWFUL ACTS are UPHELD.

       

      “4] One who claims to be a public officer while in possession of an office, ostensibly exercising its functions lawfully and with the acquiescence of the public, is a de facto officer. [5] His lawful acts, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it. (In re Redevelopment Plan for Bunker Hill , 61 Cal.2d 21, 42 [37 Cal.Rptr. 74, 389 P.2d 533].) The reason for the doctrine is that it is necessary to the supremacy and execution of the laws and that private challenge of the authority of officers in fact would produce inconsistency, confusion and insecurity of rights and of titles to property. (Jarrett, De Facto Public Officers: The Validity of Their Acts and Their Rights to Compensation, 9 So.Cal.L.Rev. 189, 218.) In respect of judges, the de facto doctrine operates for the soundness of judgments, orders and decrees.

       

      “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

       

      Notice how in United States vs. Ryder the U.S. SUPREME COURT held that “the judges' actions were not valid “de facto” because the defendant made a TIMELY CHALLENGE (and thus there was NO “acquiescence”) and REVERSED the JUDGMENT.

       

      “Petitioner, an enlisted member of the United States Coast Guard, challenges his conviction by a court martial. His conviction was affirmed first by the Coast Guard Court of Military Review, and then by the United States Court of Military Appeals. http://www.law.cornell.edu/supct/html/94-431.ZO.html" \l "FN1#FN1[n.1] The latter court agreed with petitioner that the two civilian judges who served on the Court of Military Review had not been appointed in accordance with the dictates of the Appointments Clause, U. S. Const., Art. II, §2, cl. 2, but nonetheless held that the actions of those judges were valid de facto. We hold that the judges' actions were not valid de facto.

      In the case before us, petitioner challenged the composition of the Coast Guard Court of Military Review while his case was pending before that court on direct review. Unlike the defendants in Ball, McDowell, and Ward, petitioner raised his objection to the judges' titles before those very judges and prior to their action on his case.”  Ryder v. United States (94-431), 515 U.S. 177 (1995)

      http://www.law.cornell.edu/supct/html/94-431.ZO.html

       

        ACQUIESCENCE. Acquiescence is where a person who knows that he is entitled to impeach a transaction or enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right. Scott v. Jackson, 89 Cal. 258, 26 Pac. 898; Lowncles v. Wicks, 69 Conn. 15, 36 Atl. 1072 ; Norfolk & W. R. Co. v. Perdue, 40 W. Va. 442, 21 S. B. 755 ; Pence v. Langdon, 99 U. S. 578, 25 L. Ed. 420.

        Acquiescence and laches are cognate but not equivalent terms. The former is a submission to, or resting satisfied with, an existing state of things, while laches implies a neglect to do that which the party ought to do for his own benefit or protection. Hence laches may be evidence of acquiescence. Laches imports a merely passive assent, while acquiescence implies active assent. Lux v. Haggin, 69 Cal. 255, 10 Pac. 678; Kenyon v. National Life Ass'n, 39 App. Div. 276. 57 N. Y. Supp. GO; Johnson-Brinkman Commission Co. v. Missouri Pac. R. Co., 126 Mo. 345, 28 S. W. 870, 26 L. R. A. 840, 47 Am. St. Rep. 675.  BLACK’S LAW DICTIONARY, 2ND EDITION, page 20.

       

      And notice that in the OTHER cases cited in Ryder when the defendants “made no objection at that time” they held the OPPOSITE?

      “In Ball v. United States, 140 U.S. 118 (1891), a Circuit Judge assigned a District Judge from the Western District of Louisiana to sit in the Eastern District of Texas as a replacement for the resident judge who had fallen ill and who later died. The assigned judge continued to sit until the successor to the deceased judge was duly appointed. The assigned judge had sentenced Ball after the resident judge had died, and Ball made no objection at that time. Ball later moved in arrest of judgment challenging the sentence imposed upon him by the assigned judge after the death of the resident judge, but this Court held that the assigned judge "was judge de facto if not de jure, and his acts as such are not open to collateral attack." Id. , at 128-129.

      Similarly, in McDowell v. United States, 159 U.S. 596 (1895), a Circuit Judge assigned a Judge from the Eastern District of North Carolina to sit as a District Judge in the District of South Carolina until a vacancy in the latter district was filled. McDowell was indicted and convicted during the term in which the assigned judge served, but made no objection at the time of his indictment or trial. He later challenged the validity of his conviction because of a claimed error in the assigned judge's designation. This Court decided that the assigned judge was a "judge de facto," and that "his actions as such, so far as they affect third persons, are not open to question." Id. , at 601. The Court further observed that McDowell's claim "presents a mere matter of statutory construction . . . . It involves no trespass upon the executive power of appointment." Id. , at 598. In a later case, Ex parte Ward, 173 U.S. 452 (1899), petitioner sought an original writ of habeas corpus to challenge the authority of the District Judge who had sentenced him on the grounds that the appointment of the judge during a Senate recess was improper. This Court held that "the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked." Id. , at 456.”   Ryder v. United States (94-431), 515 U.S. 177 (1995)

      http://www.law.cornell.edu/supct/html/94-431.ZO.html

       

      Patrick in California

       

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

       

       

      --- In tips_and_tricks@yahoogroups.com , B Burgess <fticeo@...> wrote:

      >  

      > The question might be, as in the case of North Carolina , Since the law says:

      >

      > If any officer shall enter on the duties of his office before he executes and delivers to the authority entitled to receive the same the bonds required by law, and qualifies by taking and subscribing and filing in the proper office the oath of office prescribed, he shall be guilty of a Class 1 misdemeanor and shall be ejected from his office. (Code, s. 79; Rev., s. 3565; C.S., s. 4383; 1999-408, s. 2.)

      >

      > So has the officer, after the appointed time for taking their oath automatically vacated the office by ejection as a function of law?

      >

      >  If that were that case are all acts conducted by said officer void as said officer had no authority to conduct the duties of the office?

      >

      > This issue might have a far broader reach than the courts, counties, States and even the federal government wants to deal with.

      > Even in States where their courts have ruled to protect what seems to be contrary to the laws that the legislature drafted and perhaps their own State constitutions.

      >

      > Perhaps another rabbit hole to climb through...

      >

      > Berkeley

      >  

       

    • Frog Farmer
      ... Is it every citizen s duty to initiate that procedure the day of the initial oath-taking ( all responsible adults please report... ), or can we all just
      Message 2 of 7 , Nov 11, 2009
        Jake wrote:

        > So has the officer, after the appointed time for taking their oath
        > automatically vacated the office by ejection as a function of law?
        >
        > No. A procedure against the officer would have to be instituted &
        > they'd have to be found guilty 1st.

        Is it every citizen's duty to initiate that procedure the day of the
        initial oath-taking ("all responsible adults please report..."), or can
        we all just wait until the "officer" comes against us in the course of
        life? I wait, and let impersonators impersonate for others like a lone
        patrolman has to let 99% of the speeders go by as, "we can't stop them
        all!"

        So, the question arises, what stops most people from instituting a
        procedure of disqualification in the Initial Moment Of Confrontation,
        before offering information or submitting to interrogation? Do any ever
        consider asking the impersonators to find themselves guilty and recuse
        themselves? Guess what can happen if that is done?!

        And again, even dejure officers may be disqualified if done timely. So
        you just have to notice that most people never try to do that, and they
        suffer the consequences later after it is too late to avoid what may
        have been avoided.

        Regards,

        FF
      • Frog Farmer
        ... It will make understanding fools easier. ... I mean really, who watches the watchers? Has anyone been checking this guy out, or is the turmoil of fear in
        Message 3 of 7 , Nov 12, 2009
          Patrick M wrote:

          > People might want to research the "de facto doctrine" because it
          > explains how a lot of seeming UNLAWFUL ACTS are UPHELD.

          It will make understanding fools easier.

          > "4] One who claims to be a public officer while in possession of an
          > office, ostensibly exercising its functions lawfully

          I mean really, who watches the watchers? Has anyone been checking this
          guy out, or is the turmoil of fear in control where nobody sees nuthin'?

          > and with the
          > acquiescence of the public, is a de facto officer.

          Well, there you go, couldn't be plainer than that. You know if the
          elites have their way, meeting another human speaking the language might
          be a rare event. It IS up to each and every one of us to do what we can
          to be self-governing at ALL moments. Most cases you read deal with
          corporate imaginary entities, and the rest deal with claimed
          incompetents, and where a real free American fights until death, many
          times those "constitutional" or "unalienable" or "inalienable" or
          "human" or "English" "rights" end up winning out over ignorance and
          tyranny. Don't ask me for specific ones right now, but there are many
          as many who read can attest.

          > [5] His lawful
          > acts, so far as the rights of third persons are concerned, are, if
          > done within the scope and by the apparent authority of office,

          But as soon as you point out the flaws, authority is NOT "apparent". So
          if I don't point out the truth, any third parties are absolved from
          liability. As I said before we can't take the time to check everyone's
          "bona fides". But if we do it at the VERY FIRST OPPORTUNITY THAT WE
          OURSELVES GET, then truth must prevail, the impersonator can be proven
          to be fraudulent, and if he really wants a trial he can have one, or, he
          can pick another fish to fry besides yours truly.

          > as
          > valid and binding as if he were the officer legally elected and
          > qualified for the office and in full possession of it. (In re
          > Redevelopment Plan for Bunker Hill, 61 Cal.2d 21, 42 [37 Cal.Rptr. 74,
          > 389 P.2d 533].) The reason for the doctrine is that it is necessary to
          > the supremacy and execution of the laws and that private challenge of
          > the authority of officers in fact would produce inconsistency,
          > confusion and insecurity of rights and of titles to property.
          > (Jarrett, De Facto Public Officers: The Validity of Their Acts and
          > Their Rights to Compensation, 9 So.Cal.L.Rev. 189, 218.) In respect of
          > judges, the de facto doctrine operates for the soundness of judgments,
          > orders and decrees.

          Like I said before, there are many standard regular processes for
          disqualifying anyone. You should not be letting "judges" get so far
          with you as issuing "judgments, orders and decrees" until you really
          have exhausted all administrative remedies.

          > Notice how in United States vs. Ryder the U.S. SUPREME COURT held that
          > "the judges' actions were not valid "de facto" because the defendant
          > made a TIMELY CHALLENGE (and thus there was NO "acquiescence") and
          > REVERSED the JUDGMENT.

          There you go. I no longer feel the need to have any court decision
          agree that I have my rights. Put another way, I do not need a court
          case to feel confident that when it rains things get wet.

          > In the case before us, petitioner challenged the composition of the
          > Coast Guard Court of Military Review while his case was pending before
          > that court on direct review. Unlike the defendants in Ball, McDowell,
          > and Ward, petitioner raised his objection to the judges' titles before
          > those very judges and prior to their action on his case." Ryder v.
          > United States (94-431), 515 U.S. 177 (1995)

          What do you think I'm going to be doing when hauled before the
          magistrate "immediately"? Who else do you know that will or has done
          this?

          > ACQUIESCENCE. Acquiescence is where a person who knows that he is
          > entitled to impeach a transaction or enforce a right neglects to do so
          > for such a length of time that, under the circumstances of the case,
          > the other party may fairly infer that he has waived or abandoned his
          > right. Scott v. Jackson, 89 Cal. 258, 26 Pac. 898; Lowncles v. Wicks,
          > 69 Conn. 15, 36 Atl. 1072 ; Norfolk & W. R. Co. v. Perdue, 40 W. Va.
          > 442, 21 S. B. 755 ; Pence v. Langdon, 99 U. S. 578, 25 L. Ed. 420.
          >
          > Acquiescence and laches are cognate but not equivalent terms. The
          > former is a submission to, or resting satisfied with, an existing
          > state of things, while laches implies a neglect to do that which the
          > party ought to do for his own benefit or protection. Hence laches may
          > be evidence of acquiescence. Laches imports a merely passive assent,
          > while acquiescence implies active assent. Lux v. Haggin, 69 Cal. 255,
          > 10 Pac. 678; Kenyon v. National Life Ass'n, 39 App. Div. 276. 57 N. Y.
          > Supp. GO; Johnson-Brinkman Commission Co. v. Missouri Pac. R. Co., 126
          > Mo. 345, 28 S. W. 870, 26 L. R. A. 840, 47 Am. St. Rep. 675. BLACK'S
          > LAW DICTIONARY, 2ND EDITION, page 20.

          They tried to falsely accuse me of laches. F-rtunately for me the
          record showed their fraud and lie.

          > And notice that in the OTHER cases cited in Ryder when the defendants
          > "made no objection at that time" they held the OPPOSITE?

          It makes sense, doesn't it?

          Regards,

          FF
        • Frog Farmer
          ... Answer: Most people choose to subject themselves to any claim of authority. We do have the right to appoint our own arbitrators and submit to arbitration.
          Message 4 of 7 , Nov 18, 2009
            Frog Farmer axed:

            > So, the question arises, what stops most people from instituting a
            > procedure of disqualification in the Initial Moment Of Confrontation,
            > before offering information or submitting to interrogation?

            Answer: Most people choose to subject themselves to any claim of
            authority. We do have the right to appoint our own arbitrators and
            submit to arbitration. I sometimes wonder if Americans know that is
            what they are seeing on all of those "judge" shows on television.

            > Do any ever consider asking the impersonators to find
            > themselves guilty and recuse themselves? Guess what
            > can happen if that is done?!

            If that is done, they might just do it. THEIR pizza might be the one
            about to chill! But most people will decide to admit to an
            administrative action on the spot (sometimes referred to as "curbstone
            court")((or "scene of the crime") and admit that they do understand the
            alleged "charges". If witnesses are present this will be hard to refute
            later, and is definitely locked in with their signature on the "ticket".
            What a cute term (not found in the laws, but always used by the
            victim/enablers)!

            > And again, even dejure officers may be disqualified if done timely.

            I know!! And have you ever seen anyone DO it?! Not me...

            > So you just have to notice that most people never try to do that, and
            > they suffer the consequences later after it is too late to avoid what
            > may have been avoided.

            I know. I've given up letting it bother me. There's nothing one can do
            to instill the correct level of curiosity and will power to act in the
            course of self-survival. Most will follow the last instruction given
            ("Submit, resistance is futile"). Today's tip: get good at issuing
            military style orders and having them obeyed (i.e., if you really ARE a
            Jeffersonian American with rights). Otherwise await instructions in the
            proper line as indicated by your color-coded wrist bracelet.

            Regards,

            FF
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