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Notes on Notice and Procedural Due Process

27 Jul

The one thing the courts of “this state” seem willing to enforce is “procedural due process”. As I understand it, procedural due process consists of two elements: 1) Notice and 2) Opportunity to be heard. With that understanding of “procedural due process” in mind, I asked myself Why has our government—and therefore our country—become bilingual or even multi-lingual?

Under a truly “public” law made and enforced under a State or U.S. constitution, government would have authority (“public consent”) and our obedience to the limited (“constitutional”) powers of government would be therefore mandatory. However, in a “state” where the law is non-constitutional and therefore private and consensual, Notice may be required for the purpose of securing our individual consent to the transaction in question. I believe that “this state”—the territorial and/or fictional “state” (TX, CA, NY, STATE OF TEXAS, STATE OF CALIFORNIA, etc.) that has supplanted “The State” (“The State of Texas,” “The State of California,” etc.)—may have great power, but no inherent authority. If that belief is correct, then “this state” must obtain the people’s consent before it acts against them.

The government’s need for our consent is not news.

In fact, government’s dependence on our consent is a fundamental premise on which this nation was founded. The third sentence of the “Declaration of Independence” of A.D. 1776 declared: “That to secure these rights, governments were instituted among men, deriving their just powers from the consent of the governed.” Without the people’s consent, all exercise of government (or governmental) powers is, by definition, unjust and arguably evidence of despotism and tyranny.

Historically, that “consent” was provided by our State or federal constitutions. We the People wrote the constitutions; We the People could amend the constitutions. The constitutions are the “people’s law” and the means by which the de jure government exercises limited power over the People. The constitutions provided the evidence of the People’s “consent” to be governed under the limited powers of our de jure governments.

However, Article 1 Section 10 Clause 1 of the federal Constitution declared that “No State shall . . . make any Thing but gold and silver Coin a Tender in Payment of Debts.” Therefore, when the federales removed the gold coin (A.D. 1933) and silver coin (A.D. 1964-1968) from circulation, they made it impossible for the States of the Union to continue to function in accord with the Constitution. Unable to transact business, collect taxes, impose fines or pay their help in constitutionally-mandated gold- or silver-backed currency, the States of the Union had to be abandoned or largely vacated.

I believe that to fill the “void,” the States of the Union were therefore supplanted with fictional or territorial “states” (TX, CA, NY, etc.) that may have great and perhaps unlimited power, but no authority. If I’m right, the lack of constitutional authority may be the de facto government’s Achilles heel.

I don’t doubt that somewhere in the President’s executive orders or the statutes of Congress (or perhaps more likely, “Joint Resolutions”) or the Supreme Court’s decisions, there are a number of “notices” that we are in a state of emergency wherein our States of the Union have been supplanted by territorial or fictional “states”. If such notices exist, they are probably written in a manner that not one man in 1,000 could read and understand. Nevertheless, I’ll bet the gov-co operates on the presumption that you and I have received such notices and, since we’ve offered no objection or questions, those notices may be presumed sufficient and perhaps binding.

Nevertheless, even if such notices exist, the people were never given overt notice that they were able to understand of the creation of these “alternative” states. As a result, the people (as an association) never granted their express consent to be governed by TX, CA, NY or STATE OF TEXAS, STATE OF CALIFORNIA, or STATE OF NEW YORK. There is no express “constitutional” consent whereby we’ve all agreed to be subject to “this state”. If “this state” proceeded against us without our consent, “this state” would be an open tyranny acting in absolute violation of any principle of freedom or liberty. I believe that “this state” must therefore extract our “consent” on a case-by-case, transaction-by-transaction basis.

I believe “this state” presumes to secure our consent (or more likely, assent) by means of NOTICE.

But if so, could a notice written in English to someone who only speaks Spanish be construed as sufficient? I don’t think so. If not, that may explain why our “government” has become bi-lingual and even multilingual. If our “state” governments (or their agencies) are private entities and no longer acting under a de jure State constitution, those governments and/or agencies are acting without authority. Without authority, they’d require our consent to be subject to their purported or de facto “authority”. That consent (or assent) might be achieved by means of notice. But if the de facto “officer” provided a notice that the intended “recipient” could not understand, it seems to me that the recipient would’ve been denied “sufficient notice” and the requirements of procedural due process could not have been provided.

Without procedural due process (Notice and Opportunity to be heard), the case should be dismissed.

Substantive vs. procedural; The State vs. this state

I know that the persons of “this state” are entitled to “procedural due process,” whereby they receive 1) Notice and 2) Opportunity to be heard. I’m betting that the object of the Notice (and perhaps the “opportunity to be heard”) is to establish the recipient’s consent (or, more likely, presumed assent) to subject himself to the power and private law of “this state”—but not to its constitutional “authority” since none exists. I believe that individual consent must be required where constitutional (public) authority does not exist.

If “this state” operates under private law or otherwise has no constitutional authority it must therefore depend on our consent to proceed against us. If so, then “this state’s” “procedure” may exist for the primary purpose of obtaining our consent (or presumed assent) to be subject to their private, non-constitutional law and/or implied charitable trust (see the “Senator Harkins letter” at http://adask.wordpress.com).

I can’t prove it, but I’ll bet that “substantive due process” is a function of the rights that are due to each man within The State. I suspect that “substantive due process” is an attribute of The (de jure) State while “procedural due process” may be virtually exclusive to “this (de facto) state”.

Searching for Procedural, Substantive and Due “Process”

My hypothesis (that notice is intended and required to create the presumption of our individual assent to the gov-co’s power) is tentatively supported by a Findlaw.com search of US Supreme Court cases for the term “procedural due process”. Such search produces 249 cases where the Supremes referred to the term “procedural due process”. The earliest reference was to in an A.D. 1959 case; the most recent reference was in A.D. 2004. Thus, the concept of “procedural due process” is relatively new and has only been recognized by the Supremes during the 49 years since A.D. 1959.

A similar Findlaw search for “substantive due process” revealed that the Supremes have referenced that concept in 195 cases—the earliest in A.D. 1948. So, “substantive due process” is also a relatively new concept that has only been recognized by the Supremes for the past 61 years.

At first glance, these searches weren’t much help. I’d hoped that “procedural due process” was of fairly recent origin and could be an attribute of the relatively recent “this state” (de facto), while “substantive due process” would be dated back to the origins of this country and must therefore apply to The State (de jure). I was mistaken. Finding that “procedural” and “substantive” due process are both of nearly identical vintage (A.D. 1948 to 1959), compromised my hope that “substantive” is found within The State while “procedural” is found in “this state”.

But I made another Findlaw search for the term “due process”. Findlaw produced 250 Supreme Court cases. The earliest is A.D. 1808—about 130 years before the Supremes’ first references to either “substantive” or “procedural” due process.

And guess what? 209 of those 250 cases referring to “due process” occurred since A.D. 1999 (in the last ten years) while the other 41 occurred between A.D. 1808 and A.D. 1878.

I have no proof. I haven’t read the relevant cases. But this curious 70 year silence (between A.D. 1878 and A.D. 1948) on the issue of any kind of “due process” suggests that “due process” was a settled concept until “something big” happened in the 1930s or 1940s. More, this suggests to me that both “substantive due process” and “procedural due process” may have slowly emerged after the New Deal to recognize the existence of a new territorial or fictional “state” (often referred to as “this state”) to supplant the original States of the Union (often referred to as “the State” or “The State”).

Therefore, my “new-and-improved” suspicion is that the Supremes’ creation of “substantive” and “procedural” due process may have divided the historic “due process” into two sub-components: 1) “substantive due process”—which might be roughly synonymous to the original “due process” for The State; and 2) the procedural due process”—which may apply almost exclusively to the territorial/fictional “states” like TX, NY CA and FL (frequently referenced as “this state”).

Executed in Bankruptcy?

We had 41 Supreme Court cases dealing with “due process” in the first 89 years after the U.S. Constitution was adopted. Then we had we didn’t have a single case dealing with simple “due process” from A.D. 1879 through A.D. 1998. That’s 119 years of Supreme silence on “due process”. And then, we had 209 case dealing with “due process” in the last nine years.

This suggests that something big happened back about A.D.1997 that radically changed our relationships to “due process”. What happened to end the 119 silence on “due process” is unclear. I published a possible explanation a few years ago (“Connecting the Dots” in the AntiShyster) which speculated that the singular “United States” may have been executed in bankruptcy and ceased to exist. That explanation will seem ridiculous to most people, but if you read Black’s 4th through 6th, you’ll see that the term “United States” was defined under the Hooven & Allison v Evatt case and the term “United States of America” was not defined. But starting in Black’s 7th (A.D. 1999) and continuing in Black’s 8th, (A.D. 2004), the term “United States” is undefined and missing, and the term “United States of America” has appeared with a definition completely different from the earlier definitions of “United States”. I conclude that “United States” is no longer defined because “United States” may no longer exist.

Suffice to say that much may be learned from a thorough study of “due process”—especially the gap between A.D. 1878 and A.D. 1998.

Again, while I can’t prove it but I suspect that procedural due process is an attribute of “this state” (de facto) while “substantive due process” may be an attribute of The State (de jure).

Let’s get back to the idea of Notice . . .

Beginnings

There’s a maxim of law that declares “The principal part of everything is the beginning.

The “beginning” of virtually every civil suit is a first Notice. Everything that follows, right up to a trial, judgment and even appeal ultimately depend on that very first Notice. If that Notice is valid and sufficient, all else may follow. If that Notice is invalid and insufficient, all else might be precluded.

So, let’s weigh the importance of “beginnings” against my theory that the very first document received from “this state”—the very first Notice—may a device to secure the recipient’s CONSENT (actually, presumed assent) to be subject to what may be “this state’s” private, proprietary and/or commercial law. If it’s true that the very first document/Notice is the most critical document in the entire series of documents comprising any case or action, then it would follow that if you can find a way to blunt or defeat that very first document, the gov-co might be unable to proceed against you.

If that first notice can be immediately challenged or attacked as private law, proprietary law, or perhaps commercial law under an implied charitable trust (again, see the Senator Harkins letter posted on this blog), and the recipient can expressly refuse to consent to be subject to the purported “authority” of the Notice, the whole process might be ended.

Timing is everything?

One big question is timing. Must the notice be rejected within 72 hours? Ten days? 30 Days? I don’t know.

More importantly, can a Notice be challenged months or even years after its receipt? I don’t know. JURISDICTION can be challenged at any time. Therefore, under the guise of a challenge to JURISDICTION, I suspect that a notice might be challenged even years after the fact. Nevertheless, the quicker you challenge a notice, the better. It may not be necessary to respond to a notice with 72 hours, but that quick response were certainly be preferable to 72 days or 72 weeks.

And must you expressly challenge the Notice by expressly denying your consent? Or could you merely respond with QUESTIONS concerning the Notice?

What Constitutes Notice?

As I’ve suggested previously, I suspect that a Notice is not sufficient until the recipient agrees that it’s sufficient.

For example, suppose I loaned $50 to friend at last week’s legal reform meeting. If I see him at this week’s meeting, I might merely gesture by rubbing my thumb and forefinger together with an inquisitive look on my face to suggest (but not actually say) “Where’s my money?” My friend my see my wordless gesture, instantly remember his debt, and repay my $50 without another word. My friend would’ve deemed my notice-by-gesture to have been deemed sufficient.

But my friend might also see me rubbing my fingers, observe the quizzical look on my face and ask, “What’s up?” In other words, my friend might not have understood my first notice by gesture and therefore asked for more notice.

I might therefore respond with my second and express notice by asking: “You got my money?”

My friend might instantly understand that I’m talking about the $50 he borrowed and repay me. My friend would’ve deemed my second notice (asking merely, “You got my money?”) to be sufficient.

But—my friend might also say “What money?”—indicating that my friend had determined that my second Notice was also insufficient.

So I’d respond with a third, improved Notice: “The 50 bucks. You got my 50 bucks?”

My friend could either instantly understand what I’m talking about and pay the $50, or he might respond “What 50 bucks?” (again, his question would signal that he still deemed my series of notices to have been insufficient).

Then I’d present my fourth, improved Notice: “Do you have the $50 that I loaned to you at last Tuesday’s meeting?”

Now, he might finally say, “Ohh, that $50—sure, I’ve got it right here.”

At last, I will have provided a notice that my friend deems to be sufficient.

This hypothetical illustrates the logic behind my suspicion that it’s up to the recipient to agree that he’s received sufficient notice. If so, a notice can’t be sufficient until the recipient says, or at least implies, that it’s sufficient. In fact, it’s common for a private borrower “playg dumb” and repeatedly ask his friend, “What money?” “What $50?” “What meeting?” just to stall on paying the debt—and tease the lender. Thus, it’s an implicit part of our culture to understand that a debt need not be paid until a debtor agrees that he’s received sufficient notice of his debt. Until he agrees to the notice, he doesn’t have to pay (unless he’s taken to court).

So, note well that my friend will not voluntarily give me the $50 until he agrees that he’s received sufficient notice of the debt. I suspect that the very same principle applies to any notice sent by gov-co, the courts, the credit card people, the IRS, etc.: The recipient of the notice controls whether that notice is deemed defective or sufficient.

Why daddy, why daddy?

Note that in my previous hypothetical example, the recipient demonstrated that each of my first three notices were insufficient by responding with questions. Every time he essentially asked “What $50?”, I had to come back with a new and more detailed notice.

But suppose he’d never asked a question in response to my notice. Then I could reasonably presume that he regarded my notice as sufficient. Then he either repays the $50 or he overtly refuses to repay and leaves it to me to either beat the crap out of him, slash his tires or sue him in small claims court.

These hypothetical examples suggest that our modern courts may presume that a notice is sufficient from the recipient’s failure to respond by at least asking questions.

It may be that recipients can also respond by more direct attack on the facts or law declared or implied on the notice. But I’d bet that no notice is complete so long as the recipient continues to ask relevant questions and/or his legitimate questions have not been answered.

I suspect that so long as a Notice (although sent and seemingly “received” by the intended recipient) can be shown by the recipient to be “insufficient,” then it might be argued that the first element (notice) of procedural due process is missing. Without procedural due process, I doubt that the case can lawfully proceed. This implies that you might be able to slow or even stop most procedures against you by simply asking the right questions from the very beginning.

Hablas Ingles?

Which brings me back to legal documents written in Spanish. If “this state” must send notices because it lacks any genuine, constitutional authority, then “then state” probably can’t provide “sufficient notice” written in English to Hispanics who don’t speak English.

How can I give notice to an Hispanic who owes me $50 by saying “Where’s my 50 bucks?” I’d bet that sufficient notice requires me to say something like, “Donde esta las cinquentas dollares?”

Notice in English to people born in the USA can probably be presumed to be sufficient if the recipient doesn’t respond to object or ask for clarification. But notice in English to an Hispanic-speaking person can probably be automatically challenged as insufficient.

This may explain why “this state”—rather than defending itself from invasions by illegal aliens—is implicitly encouraging that invasion by adopting legal process to accommodate those who don’t speak the “sovereign language”. If so, it might be that The State of the Union would defend itself against an invasion by illegal aliens, but “this state” will not and perhaps can not.

Opportunity to be Heard

If notice cannot be deemed sufficient until it is “accepted” without protest or question by the recipient, then we can wonder When does the court know that the recipient does not speak English? When the court sends a notice to a person named JOSE GUITERREZ, how can the court know if that recipient is a third generation American who is fluent in English or if that recipient is an illegal alien who can’t even count in English?

That answer would have to be discovered at the second part of procedural due process: Opportunity to be heard. If the court arrests the recipient of the notice for failing to appear and then finds out that the recipient can’t speak English and thus couldn’t understand the original notice, then the court can make the necessary adjustments. This implies that there may still be opportunity to challenge the validity of a Notice at the first Hearing (“opportunity to be heard”).

Ignorance is Bliss?

But let’s suppose that, given the state of American public education, most Americans are no more able to read and understand a typical governmental notice than an illegal alien. Can an American high-school drop-out be reasonably presumed to have “understood” and therefore “received” a Notice? How ‘bout someone with an IQ of 80? How ‘bout a PhD in a society that’s running a second, secret set of territorial “states”? Insofar as government operates behind veils of secrecy, undeclared emergencies and/or intentionl deception, it’s arguable that no more than one man in 1,000 can truly read and understand a typical government notice.

I suspect that questions of what constitutes “Notice” (and especially “sufficient Notice”) may be a questions that the courts have not yet answered so much as presumed.

Therefore, the reason the territorial and/or fictional governments of “this state” have gone bilingual (and multi-lingual; they provide interpreters for almost everyone; in fact, even “lawyers” can be construed as “interpreters” of sorts) may be that “this state” has no authority, must therefore proceed based on each individual’s consent/assent on a case-by-case, transaction-by-transaction basis. I suspect that the recipient’s consent and/or assent is probably presumed when the recipient receives a Notice to which he does not object or at least ask questions.

Recognition or Consent?

Another clarification: A Notice may not be a simple device to merely obtain the recipient’s presumed consent to be bound by “this state’s” private law. Perhaps the object of Notice is to obtain the recipient’s recognition of “this state’s” purported authority. The concepts of consent and recognition are so similar as to be almost synonymous—but there may be an important distinction.

Perhaps notice is primarily intended to get us to recognize the power and/or purported “authority” of “this state”. That the objective may be recognition seems supported by the de facto officer doctrine which essentially declares that if I recognize a de facto, gov-co employee as if he were a de jure officer, then—by virtue of my mistaken recognition of his seeming authority—the court’s will allow him to proceed against me, even though he actually had no constitutional authority.

If I recognize and/or consent to their purported “authority,” then they have it. Under the de facto officer doctrine, I am presumed to have given the de facto officer the required authority to arrest me.

But “recognition” is more like “assent” than “consent”. Consent is express. Assent is silent and only implies consent.

I’ll bet that’s the real point of Notice: to obtain silent and apparent recognition of “this state’s” power and/or its purported but nonexistent “authority”. Your “recognition” (failure to object or question) may be presumed to constitute evidence of your silent assent to be bound by “this state’s,” non-constitutional, private law.

Emergency Lights?

What about a traffic stop? Where’s the “notice” in that?

Maybe it’s the “emergency flashing lights”. Maybe those flashing lights give “notice” of a purported “emergency” under which a private person (the law enforcement officer who is merely the employee of a private corporation) might have “authority” or at least power to stop me.

But what if, when a law enforcement officer approached my vehicle, instead of asking “What seems to be problem, officer?” I asked “What is the emergency?” (Note that I did not say “officer” and give him de facto recognition of his purported “authority”.)

If the driver expressly challenged and/or denied the existence of any “emergency,” could the law enforcement officer proceed?

Under the seemingly bizarre hypothesis advanced in this commentary, “this state” might not be able arrest you or jail you or even tax you until YOU give them authority to do so. Supreme Court nominee Justice Robert Bork reportedly admitted as much in his book “The Tempting of America”. This implies that if you could learn how to effectively reserve your “consent,” “assent” or implied “recognition,” “this state” might be unable to proceed against you.

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2 Comments

Posted by on July 27, 2008 in Due Process, Notice

 

2 responses to “Notes on Notice and Procedural Due Process

  1. Cedric

    May 29, 2013 at 6:05 AM

    Thanks in support of sharing such a nice idea, piece of writing
    is nice, thats why i have read it entirely

     

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