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SEVEN ELEMENTS OF JURISDICTION

Author johnbsims3
Admin 

#1 - Posted: 23 Oct 2006 16:11 - Edited by: johnbsims3 
SEVEN ELEMENTS OF JURISDICTION

1. Accused must be properly identified; identified in such
a fashion there is no room for mistaken identity. The individual
must be singled out from all others; otherwise, anyone could be
subject to arrest and trial without benefit of "wrong party"
defense. Almost always the means of identification is a person's
proper name, BUT, any means of identification is equally valid if
said means differentiates the accused without doubt. (There is
no constitutionally valid requirement you must identify yourself)
For stop and identify (4th Amendment) see Brown v. Texas, 443 US
47 and Kolender v Lawson, 461 US 352.

2. The statute of offense must be identified by its proper
or common name. A number is insufficient. Today, a citizen may
stand in jeopardy of criminal sanctions for alleged violation of
statutes, regulations, or even low-level bureaucratic orders
(example: Colorado National Monument Superintentdent's Orders
regarding an unleashed dog, or a dog defecating on a trail). If
a number were to be deemed sufficient, government could bring new
and different charges at any time by alleging clerical error.
For any act to be triable as an offense, it must be declared to
be a crime. Charges must negate any exception forming part of
the statutory definition of an offense, by affirmative non-
applicability. In other words, any charge must affirmatively
negate any exception found in the law. Indictment or information is
defective unless every fact which is an element in a prima facie
case of guilt is stated. Assumption of element is not lawful.
Otherwise, accused will not be thoroughly informed. How many citizens have been convicted on a fatally defective process?

3. The acts of alleged offense must be described in non-
prejudicial language and detail so as to enable a person of
average intelligence to understand nature of charge (to enable
preparation of defense); the actual act or acts constituting the
offense complained of. The charge must not be described by
parroting the statute; not by the language of same. The naming
of the acts of the offense describe a specific offense whereas
the verbiage of a statute describes only a general class of
offense. Facts must be stated. Conclusions cannot be considered
in the determination of probable cause.

4. The accuser must be named. He may be an officer or a
third party. Some positively identifiable person (human being)
must accuse. Some certain person must take responsibility for
the making of the accusation, not an agency or an institution.
This is the only valid means by which a citizen may begin to face
his accuser. Also, the injured party (corpus delicti) must make
the accusation. Hearsay evidence may not be provided. Anyone
else testifying that he heard that another party was injured does
not qualify as direct evidence.

5. The accusation must be made under penalty of perjury.
If perjury cannot reach the accuser, there is no accusation.
Otherwise, anyone may accuse another falsely without risk.

6. To comply with the five elements above, that is for the
accusation to be valid, the accused must be accorded due process.
Accuser must have complied with law, procedure and form in
bringing the charge. This includes court-determined probable
cause, summons and notice procedure. If lawful process may be
abrogated in placing a citizen in jeopardy, then any means may
be utilized to deprive a man of his freedom. All political
dissent may be stifled by utilization of defective process.

7. The court must be one of competent jurisdiction. To
have valid process, the tribunal must be a creature of its
constitution, in accord with the law of its creation, i.e.
(article III judge).

Without the limiting factor of a court of competent
jurisdiction, all citizens would be in jeopardy of loss of
liberty being imposed at any bureaucrat's whim. It is
conceivable that the procedure could devolve to one in which the
accuser, the trier of facts, and the executioner would all be one
and the same.

The first six elements above deal primarily with the
issue of personal jurisdiction. The seventh element (also
element #2) addresses subject matter and territorial
jurisdiction. Subject matter jurisdiction is conferred by acts
controlled by law; territorial jurisdiction attaches by venue of
the parties in relation to the court and to any trans-
jurisdictional acts and/or activities of the parties (extended
territorial jurisdiction is conferred by controversial long-arm
statutes).

SUMMING UP the LAW and the POLITICS

Lacking any of the seven elements or portions thereof,
(unless waived, intentionally or unintentionally) all designed to
ensure against further prosecution (double jeopardy); to inform
court of facts alleged for determination of sufficiency to
support conviction, should one be obtained. Otherwise, there is
no lawful notice, and charge must be dismissed for failure to
state an offense. Without lawful notice, there is no personal
jurisdiction and all proceedings prior to filing of a proper trial
document in compliance with the seven elements is void. A lawful
act is always legal but many legal acts by government are often
unlawful. Most bureaucrats lack elementary knowledge and
incentive to comply with the mandates of constitutional due
process. They will make mistakes. Numbers beyond count have
been convicted without benefit of governmental adherence to these
seven elements. Today, informations are being filed and
prosecuted by "accepted practice" rather than due process of law.

Corpus Juris Secundum assumes courts will operate in a
lawful manner. If the accused makes this assumption, he may
learn, to his detriment, through experience, that certain
questions of law, including the question of personal
jurisdiction, may never be raised and addressed, especially when
the accused is represented by the bar.

Jurisdiction, once challenged, is to be proven, not by the
court, but by the party attempting to assert jurisdiction. The
burden of proof of jurisdiction lies with the asserter. The
court is only to rule on the sufficiency of the proof tendered.
Se McNutt v. GMAC, 298 US 178. The origins of this doctrine of
law may be found in Maxfield's Lessee v Levy, 4 US 308.

To be truly effective in the courts in any challenge to
governmental power and authority, the challenger must possess a
good understanding of politics. This is especially so since
government and the courts are primarily concerned with a public
perception of the balancing of the scales of justice rather than
the attainment of true justice under the law.

Once it is realized that the court is primarily concerned
with politics, it then becomes necessary for any challenger to
become proficient in the political arena. By politics, we speak,
not of the electoral process, but of the politics of association.

Keeping this in mind, and truly understanding the concept, a
man accused of breaking a "rule" for which he may suffer
penalties of imprisonment, fine and costs without benefit of
trial or Constitutional safeguards, may very will consider
bringing a criminal charge against himself directly in court and
thereby blunt his adversaries' attack. To the uninitiated, this
may sound like madness, but to the political scholar destined to
appear before a "master" to answer to alleged rule violation of
the unauthorized practice of law, the self-accusatory route to
the courts may be the only hope of victory; both legal and
political.

Author wblakesx
Participant 

#2 - Posted: 26 Sep 2007 19:14 
One of the best things I've read on law. I've been facing code enforcement in Miami and the Administrative hearing process where a hearing officer could not tell me where the rules governing the hearings were. I'll probably have some questions as time goes by.

Author johnbsims3
Admin 

#3 - Posted: 27 Sep 2007 04:08 
I would demand his disqualification. How can he preside if he doesn't know the rules or cannot provide them! Sounds like typical Miami-Dade corruption to me...

Civil and Criminal Issues Florida Homestead Services -- Florida Homestead Exemption Act MiniBB / Civil and Criminal Issues /
SEVEN ELEMENTS OF JURISDICTION
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