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Reference Material - For Information Only!


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Defense Against Summary Judgment Or Motion To Dismiss
Subject Matter Jurisdiction. Motor Vehicles
Final Judgment And Relief Granted
IRS Alleged Penalties
Intimidation Of Judges
Interpreting Tax Statutes
Pro-Se Litigants
The Right Of Not Being Compelled To Testify Against Yourself
Effective Assistance Of Counsel
The Definition Of "Income"
Willfully Violating A Law
Pocket Commissions From IRS Agent's Handbook
Necessity Of Criminal Charges Being Without Ambiguity
Written Laws
Void Judgment
County's Authority
The Term "LAW"
Liability Of County Or Municipality
Serving A Defendant With Subpoena
Rules Being Used Against The Defendant
Jurisdiction Of Courts


***** Defense against Summary Judgment or Motion to Dismiss.

"Since personal involvement is a question of fact we are governed by the general rule that summary judgment may be granted only if no issues of material fact exist and the defendant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Hayden Pub. Co., Inc. v. Cox; Broadcasting Corp., 730 F.2d 64, 67 (2d Cir. 1984).


"The party seeking summary judgment bears the burden of establishing that no such dispute exists." Gutwein v. Roche Laboratories, 739 F.2d 93, 95 (2d Cir.l984).


"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda, 384 US 436, at 491 . *


"If discovery could uncover one or more substantial factual issues, plaintiff was entitled to reasonable discovery to do so prior to district court's granting of motion for summary judgment. Fed. Rules Civ. Proc. Rule 56(e), 28 U.S.C.A." Williamson v. U.S. Dept. Of Agriculture, 815 F.2d 368 (5th Cir. 1987). * 


SWIERKIEWICZ v. SOREMA N. A., certiorari to the united states court of appeals for the second circuit No. 00-1853. Argued January 15, 2002 --Decided February 26, 2002 :

Complaint "must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed. Rule Civ. Proc. 8(a)(2). The McDonnell Douglas framework--which requires the plaintiff to show (1) membership in a protected group, (2) qualification for the job in question, (3) an adverse employment action, and (4) circumstances supporting an inference of discrimination--is an evidentiary standard, not a pleading requirement. See, e.g., 411 U. S., at 800. The Court has never indicated that the requirements for establishing a prima facie case apply to pleading."


"It seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered. Moreover, the precise requirements of the prima facie case can vary with the context and were "never intended to be rigid, mechanized, or ritualistic." Furnco Constr. Corp. v. Waters, 438 U. S. 567, 577. It may be difficult to define the precise formulation of the required prima facie case in a particular case before discovery has unearthed relevant facts and evidence."


"A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 45 -46 (1957)."  Hishon v. King & Spalding, 467 U. S. 69, 73 (1984) *


"Statements of counsel in their briefs or arguments are not sufficient for the purposes of granting a motion to dismiss or for summary judgment ." TRINSEY v PAGLIARO, D.C. Pa. 1964, 229 F. Supp. 647.


"Unsupported contentions of material fact are not sufficient on motion for summary judgment, but rather, material facts must be supported by affidavits and other testimony and documents that would be admissible in evidence at trial." CINCO ENTERPRISES, INS. v BENSO, Okla., 890 P.2d 866 (1994).


"In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief ." Conley v. Gibson, 355 U.S. 41 (1957). *


"Failure of the complaint to set forth specific facts to support its general allegations of discrimination was not a sufficient [355 U.S. 41, 42] ground for dismissal of the suit, since the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. Pp. 47-48." Conley v. Gibson, 355 U.S. 41 (1957). *


"Following the simple guide of Rule 8(f) that all pleadings shall be so construed as to do substantial justice, we have no doubt that petitioners' complaint adequately set forth a claim and gave the respondents fair notice of its basis.   The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.   Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197." Citation referring to Maty v. Grasselli.


"Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. The original complaint in this cause and the amended complaint were not based upon different causes of action. They referred to the same kind of employment, the same general place of employ- [303 U.S. 197, 201]   ment, the same injury and the same negligence. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment." MATY v. GRASSELLI CHEMICAL CO., 303 U.S. 197 (1938) *





***** Subject Matter Jurisdiction. Motor vehicles.

"An action by Department of Motor Vehicles, whether directly or through a court sitting administratively as the hearing officer, must be clearly defined in the statute before it has subject matter jurisdiction, without such jurisdiction of the licensee, all acts of the agency, by its employees, agents, hearing officers, are null and void ." Doolan v. Carr, 125 US 618; City v Pearson, 181 Cal .  640.


"As the majority states, failure to verify the signature of the arresting officer on the Uniform Violations Complaint precluded the district court from being vested with subject matter jurisdiction and from being empowered to act. Therefore, all proceedings in the trial court are rendered void." Buis v. State, 792 P.2d 427 (Okl. Cr. 1990).





***** Final Judgment and Relief Granted.

"Every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleading."   U.S. v. White County Bridge Commission, 2 Fr Serv 2d 107, 275 F2d 529, 535.





***** IRS alleged Penalties.

"… penalties for failure to pay tax shown on return weren't upheld since there were no returns, and thus no reported tax on which to base penalties." (Alex B. Rhodes, Jr. v. Commissioner, (2003) TC Memo 2003-133 , 2003 RIA TC Memo ¶2003-133 )


IRC section 6751 (b) states: "No penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination or such higher level official as the Secretary may designate." On any claimed penalty by the IRS, demand to see the written approval by the supervisor.





***** Intimidation of Judges.

"When this court found that the Internal Revenue agents had violated the law and that the improperly seized records were to be returned, the agents were, to say the least, not happy.   More than once have judges of a court been indirectly reminded that they too are taxpayers.


"No sophisticated person is unaware that the Internal Revenue Service has been in possession of facts with respect to public officials which it has presented or shelved in order to serve what can only be called political ends, be they high or low.  And a judge who knows the score is aware that every time his decisions offend the Internal Revenue Service, he is inviting a close inspection of his records." Lord v. Kelley, 240 F.Supp. 167 (1965).





***** Interpreting Tax Statutes.

"In the interpretation of statutes levying taxes, it is the established rule not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government and in favor of the citizen. United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690; American Net & Twine Co. v. Worthington , 141 U.S. 468, 474 , 12 S. Sup. Ct. 55; Benziger v. United States, 192 U.S. 38, 55 , 24 S. Sup. Ct. 189." GOULD v. GOULD , 245 U.S. 151 at 153 (1917) *


"There must be certainty as to the meaning and scope of the language imposing any tax, and doubt in respect to its meaning is to be resolved in favor of the taxpayer."   Treat v. White, 181 U.S. 264 (1901).


"The citizen is exempt from taxation unless the same is imposed by clear and unequivocal language, and that where construction of a tax law is doubtful, the doubt is to be resolved in favor of those upon whom the tax is sought to be laid."   Spreckels Sugar Refining Co. v. McClain, 192 U.S. 397 (1904).


"We have stated time and again that courts must presume that a [503 U.S. 249, 254]   legislature says in a statute what it means and means in a statute what it says there. See, e.g., United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 -242 (1989); United States v. Goldenberg, 168 U.S. 95, 102 -103 (1897); Oneale v. Thornton, 6 Cranch 53, 68. When the words of a statute are unambiguous, then this first canon is also the last: 'judicial inquiry is complete.' Rubin v. United States, 449 U.S. 424, 430 (1981); see also Ron Pair Enterprises, supra, at 241." Conn. National Bank v. Germain, 503 U.S. 249 (1992). *




***** Pro-se Litigants.

"… allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers…" Haines v. Kerner, 404 US 519 (1972). *





***** The Right of Not Being Compelled To Testify Against Yourself .

"(a) That the client in any ensuing criminal action could move to suppress the subpoenaed material after it had been produced does not afford adequate protection, because without something more "he would be compelled to surrender the very protection which the privilege is designed to guarantee," Hoffman v. United States, 341 U.S. 479, 486 . United States v. Blue, 384 U.S. 251 , distinguished." Pp. 461-463.





***** Effective Assistance of Counsel .

''[T]he right to counsel is the right to the effective assistance of counsel.'' 233 From the beginning of the cases holding that counsel must be appointed for defendants unable to afford to retain a lawyer, the Court has indicated that appointment must be made in a manner that affords ''effective aid in the preparation and trial of the case.'' 234

233 McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970).

234 Powell v. Alabama , 287 U.S. 45, 71–72 (1932); Glasser v. United States , 315 U.S. 60, 70 (1942)





***** The Definition of "Income".

Eisner vs. Macomber, "In order, therefore, that the clauses cited from article 1 of the Constitution may have proper force and effect, save only as modified by the amendment, and that the latter also may have proper effect, it becomes essential to distinguish between what is and what is not 'income,' as the term is there used, and to apply the distinction, as cases arise, according to truth and substance, without regard to form. Congress cannot by any definition it may adopt conclude the matter, since it cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised ."

In addition, Ballard v. US states that the IRC does not define the word "income".


UNITED STATES of America v. Jack BALLARD, 535 FEDERAL REPORTER, 2d SERIES, 400 at 404.

"The general term "income' is not defined in the Internal Revenue Code" *


"The use of the word itself in the definition of 'income' causes some obscurity, but we are unable to assert that alimony paid to a divorced wife under a decree of court falls fairly within any of the terms employed." GOULD v. GOULD , 245 U.S. 151 (1917). *


"Income is necessarily the product of the joint efforts of the state and the recipient of the income, the state furnishing the protection necessary to enable the recipient to produce, receive, and enjoy it, and a tax thereon in the last analysis is simply a portion cut from the income and appropriated by the state as its share…" Sims v. Ahrens et al., 271 SW Reporter at 730. *




***** Willfully Violating a Law.

United States v. Bishop , 412 U.S. 346,  361:: "This longstanding interpretation of the purpose of the recurring word "willfully" promotes coherence in the group of tax crimes. In our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law. The Court has said, 'It is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the [412 U.S. 346, 361] exercise of reasonable care.' Spies, 317 U.S., at 496 . Degrees of negligence give rise in the tax system to civil penalties. The requirement of an offense committed "willfully" is not met, therefore, if a taxpayer has relied in good faith on a prior decision of this Court. James v. United States , 366 U.S., at 221 -222. Cf. Lambert v. California, 355 U.S. 255 (1957). The Court's consistent interpretation of the word "willfully" to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers." *





***** Pocket Commissions from IRS agent's handbook ; [1.16.4] 3.1 (02-19-1999 )

Authorized Use

1. Pocket commissions will be issued only to those employees who are required to present proof of their authority in the performance of their official duties. With the exception of their use by Inspection, pocket commissions are primarily intended to identify Service personnel to the public when dealing with tax matters. They will not be issued to employees merely to identify themselves for transaction of routine business. Pocket commissions will only be displayed as prescribed in 3.2 of this Chapter. Misuse of pocket commissions is a violation of the Rules of Conduct and may be a violation of Federal Law (18 U.S.C. 499).


2. Pocket commissions are categorized as either "enforcement" or "nonenforcement." Enforcement commissions conform to the format prescribed by the Department of Treasury for Treasury Law Enforcement Officers and may be issued only to individuals in the 1811 series, Special Agents (Criminal Investigation) and Inspectors (Internal Security). Nonenforcement pocket commissions are those issued to all other authorized employees.


3. In the upper right hand corner of each commission is a line for the office code. This should be the geographic code of the issuing office (the same code used on ID cards). Each commission will have a serial number with the prefix IR and the suffix "E" on enforcement commissions and "A" on nonenforcement commissions.


Title 28 – Habeas Corpus

Sec. 2255. Federal custody; remedies on motion attacking sentence


 A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.  If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.





***** Necessity of Criminal Charges Being Without Ambiguity.

EVANS v. U S, 153 U.S. 584 (1894):

"A rule of criminal pleading which at one time obtained in some of the circuits, and perhaps received a qualified sanction from this court in U. S. v. Mills, 7 Pet. 138, that an indictment for a statutory misdemeanor is sufficient if the offense be charged in the words of the statute, must, under more recent decisions, be limited to cases where the words of the statute themselves, as was said by this court in U. S. v. Carll, 105 U.S. 611 , 'fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.' The crime must be charged with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged. U. S. v. Cook, 17 Wall. 174; U. S. v. Cruikshank, 92 U.S. 542 , 558. 'The fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.' U. S. v. Carll, 105 U.S. 611 ."





***** Written Laws.

In Boyd v US , 116 US 616 (1886), the court observed the succinct statement by Lord Camden: "If it is law, it will be found in the books; if it is not to be found there, it is not law." id 627. "






***** Void Judgment.

A judgment rendered in violation of due process is void. "A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U.S. 714, 732 -733 (1878). Due process requires that the defendant be given adequate notice of the suit, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 -314 (1950), and be subject to the personal jurisdiction of the court, International Shoe Co. v. Washington, 326 U.S. 310 (1945)." World Wide Volkswagen v Woodsen, 444 US 286, 291 (1980); National Bank v Wiley, 195 US 257 (1904); Pennoyer v Neff, 95 US 714 (1878).


"As this court has often said: 'Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and, whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court: but, if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void.' Elliott v. Peirsol, 1 Pet. 328, 340; Wilcox v. Jackson, 13 Pet. 498, 511; Hickey v. Stewart, 3 How. 750, 762; Thompson v. Whitman, 18 Wall. 457, 467." IN RE SAWYER, 124 U.S. 200 (1888)





***** County's authority.

Tulsa Exposition and Fair Corp. v. Board of County Commissioners , 468 P.2d 501 (Ok. 1970): "Counties have only such authority as is granted by statute [cites omitted]. The Board of County Commissioners in exercising corporate powers is limited to those fields expressly assigned to such subdivisions of the state by the legislature [cites omitted]. Public officers possess only such authority as is conferred upon them by law and such authority must be exercised in the manner provided by law," 468 P.2d, at 508.




***** The Term "LAW".

Fennell v Common Council of Bay City, 36 Mich 186, 190 (1877) and Delta County v City of Gladstone , 305 Mich 50, 8 NW2d 908 (1943). "The term law, as defined by the elementary writers, emanates from the sovereignty and not from its creatures. The legislative power of the state is vested in the state legislature, and their enactments are the only instruments that can in any proper sense be called laws."





***** Liability of County or Municipality.

OWEN v. CITY OF INDEPENDENCE , 445 U.S. 622 (1980):

"Held: A municipality has no immunity from liability under 1983 flowing from its constitutional violations and may not assert the good faith of its officers as a defense to such liability. Pp. 635-658." *


1. In Monroe v. Pape, supra, after examining the legislative history of the Civil Rights Act of 1871, now codified as 42 U.S.C. 1983, and particularly the rejection of the so-called Sherman amendment, the Court held that Congress in 1871 doubted its constitutional authority to impose civil liability on municipalities and therefore could not have intended to include municipal bodies within the class of "persons" subject to the Act. Re-examination of this legislative history compels the conclusion that Congress in 1871 would not have thought 1983 constitutionally infirm if it applied to local governments. In addition, that history confirms that local governments were intended to be included [436 U.S. 658, 659] among the "persons" to which 1983 applies. Accordingly, Monroe v. Pape is overruled insofar as it holds that local governments are wholly immune from suit under 1983. Pp. 664-689. *


2. Local governing bodies (and local officials sued in their official capacities) can, therefore, be sued directly under 1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. In addition, local governments, like every other 1983 "person," may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such custom has not received formal approval through the government's official decision-making channels. Pp. 690-691. *


PEMBAUR v. CINCINNATI, 475 U.S. 469 (1986):

1. The "official policy" requirement of Monell was intended to distinguish acts of the municipality from acts of the municipality's employees, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible. Monell held that recovery from a municipality is limited to acts that are, properly speaking, "of the municipality," i. e., acts that the municipality has officially sanctioned or ordered. With this understanding, it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances. If the decision to adopt a particular course of action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly . Pp. 477-481. *


2. It was error to dismiss petitioner's claim against the county. Ohio law authorizes the County Sheriff to obtain instructions from the County Prosecutor. The Sheriff followed the practice of delegating certain decisions to the Prosecutor where appropriate. In this case, the Deputy Sheriffs received instructions from the Sheriff's Office to follow the orders of the County Prosecutor , who made a considered decision based on his understanding of the law and commanded the Deputy Sheriffs to enter petitioner's clinic. That decision directly caused a violation of petitioner's Fourth Amendment rights . In ordering the Deputy Sheriffs to enter petitioner's clinic to serve the capiases on the employees, the County Prosecutor was acting as the final decisionmaker for the county, and the county may therefore be held liable under 1983 . Pp. 484-485. *


Mack v City of Detroit , Docket No. 118468. Argued January 23, 2002 (Calendar No. 2). Decided July 31, 2002; This latest ruling applies to ordinary policies within the police department regarding employees.

"… we overrule McCummings to this extent and return to the longstanding principle extant before McCummings that, governmental immunity being a characteristic of government, a party suing a unit of government must plead in avoidance of governmental immunity."

"2. Plaintiff's Complaint"

"A plaintiff pleads in avoidance of governmental immunity by stating a claim that fits within a statutory exception or by pleading facts that demonstrate that the alleged tort occurred during the exercise or discharge of a nongovernmental or proprietary function. McCann, supra at 77. Plaintiff did neither in this case."

" Governmental immunity protects the conduct of governmental agencies, which include two types of actors: the state and political subdivisions. MCL 691.1401(d). The Detroit Police Department, as a political subdivision, MCL 691.1401(b), is a "governmental agency" for purposes of governmental immunity. MCL 691.1401(d). As such, absent the applicability of a statutory exception, it is immune from tort liability if the tort claims arise from the department's exercise or discharge of a governmental function. MCL 691.1407(1). "'Governmental function' is an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." MCL 691.1401(f). It is well established in
Michigan that the management, operation, and control of a police department is a governmental function. Moore v Detroit , 128 Mich App 491, 496-497; 340 NW2d 640 (1983); Graves v Wayne Co, 124 Mich App 36, 40-41; 333 NW2d 740 (1983)."

" Plaintiff's claims regarding the police department all involve decisions that are part and parcel of the department's discharge of governmental functions. The decisions at issue in this case are job reassignment, distribution of vacation time, and determining the extent to which department officers are involved in investigations. These are ordinary day-to-day decisions that the police department makes in the course of discharging its governmental function. As such, the police department's conduct is within the scope of § 7. Thus, plaintiff's claim is barred unless it falls within one of the statutory exceptions. As discussed above, plaintiff's sexual orientation discrimination claim falls under no immunity exception."





***** Serving a Defendant with Subpoena.

PENNOYER v. NEFF, 95 U.S. 714 (1877):

"Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability."





***** Arraignments.


CRAIN v. U S, 162 U.S. 625 (1896):

According to Sir Mattew Hale, the arraignment consists of three parts, one of which, after the prisoner has been called to the bar, and informed of the charge against him, is the* [162 U.S. 625, 638]   'demanding of him whether he is guilty or not guilty; and, if he pleads not guilty, the clerk joins issue with him cul. prist, and enters the prisoner's plea. Then he demands how he will be tried. The common answer is, 'By God and the country,' and thereupon the clerk enters pro. se, and prays to God to send him a good deliverance.' 2 Hale, P. C. 219. So, in Blackstone:

'To arraign is nothing else but to call the person to the bar of the court to answer the matter charged upon him in the indictment.' 'After which [after the indictment is read to the accused] it is to be demanded of him whether he is guilty of the crime whereof he stands indicted, or not guilty.' 4 Bl. Comm. pp. 322-341. Chitty says: 'The proper mode of stating the arraignment on the record is in this form: 'And being brought to the bar here in his own proper person, he is committed to the marshal,' etc. And being asked how he will acquit himself of the premises (in case of felony, an of high treason in case of treason) above laid to his charge, saith, etc. If this statement be omitted, it seems the record will be erroneous.' 1 Chit. Cr. Law, 419.


"… the power of the district court to act on those charges cannot be invoked unless the information complies with the statutory requirements of both endorsement by the district attorney and verification 'by the oath of the prosecuting attorney, complainant or some other person'. 22 O.S. 1981, sec. 303. Only by the filing of an information which complies with this mandatory statutory requirement can the district court obtain subject matter jurisdiction in the first instance which then empowers the court to adjudicate the matters presented to it." Buis v. State, 792 P.2d 427 at 431, (Okl. Cr. 1990).





***** Rules Being Used Against the Defendant.

"There is something specially repugnant to justice in using rules of practice in such a manner as to (prevent a defendant) from defending himself, especially when the professed object of the rules so used is to provide for his defense."   Faretta v. California, 422 U.S. 806, 822‑823 (1975).


"Petitioner, convicted and sentenced without the assistance of counsel, contends that he was ignorant of his right to counsel, and incapable of preserving his legal and constitutional rights during trial. Urging that- after conviction-he was unable to obtain a lawyer; was ignorant of the proceedings to obtain new trial or appeal and the time limits governing both; and that he did not possess the requisite skill or knowledge properly to conduct an appeal, he says that it was-as a practical matter- impossible for him to obtain relief by appeal. If these contentions be true in fact, it necesarily f ollows that no legal procedural remedy is available to grant relief for a violation of constitutional rights, unless the courts protect petitioner's rights by habeas corpus. Of the contention that the law provides no effective remedy for such a deprivation of rights affecting life and liberty it may well be said-as in Mooney v. Holohan, 294 U.S. 103, 113 , 55 S.Ct. 340, 342, 98 A.L.R. 406-that it 'falls with the premise.' To deprive a citizen of his only effective remedy would not only be contrary to the 'rudimentary demands of justice' 21 but destructive of a constitutional guaranty specifically designed to prevent injustice." JOHNSON v. ZERBST, 304 U.S. 458 (1938).





***** Jurisdiction of Courts .

"...jurisdiction of the Courts of the United States means a law providing in terms of revenue; that is to say, a law which is directly traceable to the power granted to Congress by '8, Article I, of the Constitution, 'to lay and collect taxes, duties, imposts, and excises.'"   US v Hill, 123 US 681, 686 (1887).


"Jurisdiction is essentially the authority conferred by Congress to decide a given type of case one way or the other. The Fair v. Kohler Die Co., 228 U.S. 22, 25 (1913). Here, 1343 (3) and 1983 unquestionably authorized federal courts to entertain suits to redress the deprivation, under color of state law, of constitutional rights. It is also plain that the complaint formally alleged such a deprivation." Hagen v. Lavine , 415 US 528, 39 L.ed. 577, 94 S Ct, 1372 (N.Y. March 28, 1974).


"It is true that the constitutional claim would warrant convening a three-judge court and that if a single judge rejects the statutory claim, a three-judge court must be called to consider the constitutional issue." Hagen v. Lavine , 415 US 528 at 545, 39 L.ed. 577, 94 S Ct, 1372 (N.Y. March 28, 1974).


"The question of Jurisdiction in the court either over the person, the subject matter or the place where the crime was committed can be raised at any stage of a criminal proceedings; it is never presumed but must be proved; and it is never waived by the defendant." United States v. Roger , 23 F. 658 (W.D. Ark. 1885).


"Jurisdiction once challenged cannot be assumed and must be decided." State of Maine v. Thiboutot , 448 US 1, 100 S. Ct. 2502 (1980).





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