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Ignorance of the Law is No Excuse–EXCEPT When . . .

25 Mar

Cropped portion of stereograph

Dunce (Photo credit: Wikipedia)

Virtually everyone who’s studied the legal system has heard the maxim that “ignorance of the law is no excuse”.  In other words, you can’t claim to be exempt from liability under a law just because you didn’t know there was such a law.

For example, just because you didn’t know that the speed limit was 45 MPH at a particular stretch in the road will not excuse you from being ticketed for driving 60.  Similarly, you can’t claim to be exempt from being charged with someone’s murder by arguing that you had no idea that murder was a crime.

In fact, presuming that “ignorance of the law is no excuse” makes perfect sense—at least in a legal system that has only a relatively few laws.

For example, under the Ten Commandments, if you’re caught fornicating with your boss’s wife, you can’t argue that—“Gee, I’d never heard that ‘Thou Shalt Not Commit Adultery’—I had no idea that sleeping with my boss’s wife was wrong.”  No one will accept the argument that you were ignorant of one of the only ten laws you’re subject to.

Similarly, there are reportedly 613 “commandments” in the Torah.  It’s harder to know 613 laws, but it’s doable.  Therefore, every Jew is presumed to know those 613 laws and can’t duck liability for breaking any of them on a claim of “ignorance”.

Today, however, we live in a society that is probably generating 613 new laws, rule and regulations (local, state and federal) almost every day (surely, every month).  Our Congress passes laws every day that they don’t bother to read.  Thus, even Congress is truly ignorant of the very laws that it enacts.

Not one man or woman on the face of this earth knows all of the laws to which Americans are presumed to be subject.  I doubt that there’s one man in this country who even knows 5% of all the laws to which he is presumed subject.  In fact, it’s impossible that anyone could know all of our laws.

Every single American is not merely ignorant of some laws, he’s ignorant of the vast majority of the laws.  Thus, the maxim that “ignorance of the law is no excuse” is absurd.

Nevertheless, that maxim survives because, if ignorance could be an excuse, then the total number of laws would have to be reduced to perhaps one thousand general principles that controlled all human activity. It might be possible for the average man to remember 1,000 laws.  It’s not possible for the average man to know and remember 5,000 laws.   The problem with a legal system based on relatively few general principles is that such system would preclude all special interest legislation.  If our legislators couldn’t enact special interest legislation to allow one group to predate off another, there’d be virtually no need for Congress and no basis for collecting bribes (“political campaign contributions”) from special interests.

•  At bottom, the “ignorance of the law” maxim is probably based largely on the third sentence of the “Declaration of Independence”:

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

It’s debatable, but it’s hard to see how the “governed” could be presumed to have “consented” to a plethora of laws that are completely unknown to 99.9% of the American people.  The “ignorance is no excuse” maxim goes a long ways towards creating the presumption that the American people have “consented” to the laws enacted by our legislators.  If we are presumed to know all the laws, and we haven’t made any attempt to challenge or defeat any of those laws, it can be presumed that we must’ve consented to all those laws.

•  The “ignorance is no excuse” maxim is fundamental to our current legal system.  I doubt that there’s a single principle that’s more axiomatic.  Without the “ignorance is no excuse” maxim, every time government passed a new law they’d also have to provide means by which all of the people were educated to know and understand each new law before they could be subjected to it.  If knowledge of the law was not presumed, the education requirements would make the passage of new laws virtually impossible.

In fact, if the “ignorance is no excuse” maxim were ever defeated, 90% or more of what currently passes for government would probably disappear.

On the other hand, so long as “ignorance is no excuse” prevails, our legislators, administrators and judges can pass any fool law, regulation or ruling they like, no matter how stupid, irrational, unreasonable, unconstitutional or self-serving—and all the poor slobs out there in TV-land will be presumed to know the law, consent to the law, and be bound by every idiocy our Congress can imagine.

•  I just received an email from a friend who quotes a particular case (Safety Casualty Co. v. McGee, 127 S.W.2d 176, 133 Tex. 233, 121 A.L.R. 1263 (Tex.Com.App.)) that was decided on Texas back in A.D. 1939.  This case declares an exception to the legal maxim that “ignorance of the law is no excuse in the eyes of the law”.

I haven’t read the case.  I presume that the file sent to me is accurate.  If it is, the implications are huge.

Admittedly, this is only a Texas case that was decided 72 years ago.  Therefore, its application as an authority in other States is doubtful.  Its authority even here, on Texas, is also questionable.

But the fundamental principle is profound, probably timeless, and might be argued whenever the government relies on deception to ensnare us with contracts (two signatures) and perhaps even pledges (one signature).

According to the Texas courts,

“When once it is established that there has been any fraudulent misrepresentation, * * * by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell  him that he might have known the truth by proper inquiry.  He has a right to retort upon his objector: ‘You, at least, who have stated what is untrue, * * * for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty.”

Note the reference to “a contract”.  Contracts are usually litigated at law.

Trusts and fiduciary relationships are litigated in equity.  Fiduciary relationships can be found when one person “relies” on another person’s “fairness and honesty”.

The previous excerpt from the Texas court at least implies that “fraudulent misrepresentation” may be an issue to be decided in equity rather than at law—even if the fundamental subject matter is a contract at law.

I.e., even though the contract would be litigated at law (where ignorance is no excuse), if the process of drawing up and agreeing to the contract involved one party’s “reliance” on the other party’s “fairness and honesty,” that “reliance” might open the door to challenging the rights and duties created by the contract in equity rather than strictly at law.

The court implies that a proper challenge brought in equity might defeat a contract negotiated at law.

Note that the maxim “ignorance is no excuse in the eyes of the law” certainly applies at law.  But does that maxim also apply in equity?

Apparently not.

•  Lemme illustrate:

Suppose the Articles of Confederation, The Constitution of the United States, and your State’s constitution established that your State was a State of the Union (such as, The State of Texas, The State of Illinois, etc.).  Let’s refer to each of the States of the Union as “The State”.

Suppose that the government of your State of the Union had been supplanted by an administrative division of a territory of the United States.  Let’s call that administrative division of a US territory “this state”.

It would be almost impossible for most people to distinguish the difference between the government of “The State” (of the Union) and the government of “this state” (of the US territory).  This impossibility would be largely based on the common presumption by the people that, surely, our government would never behave so deceptively as to change our “States of the Union” into territories.

But, if such deception took place, “The State” would be the de jure, constitutional State of the Union.  “The State” would have real authority over the people of that “State”.

On the other hand, “this state” might be a de facto, conglomerate of non-constitutional administrative agencies that had great power but no constitutional authority.

Suppose that “this state” was masquerading as if it were “The State” and expressly or implicitly claiming an authority that “this state” could not have.   Would that masquerade be evidence of deception?  I.e., would the agencies and employees of “this state” claim to exercise an authority that the people of The State did not delegate to them?  What if the people “relied” on the false or deceptive claims of “this state”. Could such false claims of authority (express or implied) be evidence of fraudulent misrepresentation?  Could reliance on such false claims by “this state” open the door to challenging those claims in equity?  Could fraudulent misrepresentation by “this state” open a door to a defense in equity that might shield a defendant from liability under the laws of “this state”?

I think so.

Thus, a defendant who could demonstrate that he had “relied” on claims by “this state” which turned out to be false or deceptive might be exempted from the maxim that “ignorance of the law is no excuse in the eyes of the law.”  Instead, he might still be able to defeat his alleged personal liability under the law of “this state” if he could show that he had “relied on” (trusted) the “fairness and honesty” of the legislators of “this state” who wrote the law and/or “relied on” of the administrative agencies (police, etc.) of “this state” that sought to enforce the law against him—and that these legislators and/or administrators had betrayed his trust.

I.e., as one of the People of The State of Texas, I rely on and trust the legislators and administrators of “Texas” to write laws that are subordinate to The Constitution of The State of Texas that apply within the venue of The State of Texas.  By my reliance, I have established an implied fiduciary relationship with those legislators and administrators.  If those legislators and administrators have taken an Oath of Office to support and defend The Constitution of The State of Texas, they have expressly validated my implied trust in and reliance on those legislators and apparent officers of the Executive branch of government.

So, if the legislators and administrators (apparent officers of the executive branch of the de jure government of “The State”) start writing or enforcing laws of “this state” that are not under the authority of The Constitution of The State of Texas, or which are intended to operate within the geographic borders of The State of Texas, then they have breached their fiduciary obligation to me.

In theory, if I were adept at making this argument, I might be able to use it to walk out from under laws of “this state”—regardless of whether I was ignorant of those laws, or not. By means of this argument, we might turn the issue from one of my “ignorance” (which I cannot win) to one of the government employees’ deception and betrayal of my reliance on their “fairness and honesty”—I can win.

•  Here’s the text of the case that appears to defeat the “conclusive presumption” that “everyone knows the law”.  The comments between bracket [  ] are my own insertions and not part of the original court determination.

 

Safety Casualty Co. v. McGee, 127 S.W.2d 176, 133 Tex. 233,

121 A.L.R. 1263 (Tex.Com.App.), 1939

The general rule, often repeated, is that fraud cannot be predicated upon misrepresentations as to matters of law.  The reason usually given for the rule is that everyone is presumed to know the law, and hence has no right to rely upon representations made to him by another, and that such representations are to be treated as mere statements of opinions and not of fact.  Black on Rescission and Cancellation (2d Ed.) Vol.1, pp. 186-188, Sec. 71; 12 R.C.L. pp. 295, 296, Sec. 59.

This rule, like most general rules, is subject to exceptions.  As early as 1857 Associate Justice Wheeler said of it: “The general rule, it has been truly said, is justified by the considerations of public policy; and yet so harsh a rule, founded upon a presumption so arbitrary, ought to be modified in its application by every exception which can be without defeating its policy.”  Moreland v. Atchison, 19 Tex. 303, 310.  He expressed the opinion that corruptly deceiving one as to matters of law amounts to fraud in the legal sense, where advantage is taken of the ignorance of the party.

One of the well established exceptions to the general rule is that relief may be granted on account of misrepresentation of law or of legal rights when there is a relation of trust and confidence between the parties.  12 R.C.L. pp. 296, 297, Sec. 60; Black on Rescission and Cancellation (2d Ed.) Vol. 1, pp. 188, 189, Sec. 71; 26 C.J. pp. 1207-1209, Sec. 106.

The text of Ruling Case Law, immediately following the statement that relief may be granted because of representation of law where there is a relation of confidence, contains the following; “The same is true where one who himself knows the law deceives another by misrepresenting the law  to him, or knowing him to be ignorant of it, takes advantage of him through such ignorance, or where the person to whom the representations are made relies upon the supposed superior knowledge and experience of the other party and on his statement  that it is unnecessary or inadvisable for him to consult a lawyer.”  R.C.L., p. 296, Sec. 60.

[Suppose the police stopped me to give me a traffic ticket.  Suppose they wanted me to sign that traffic ticket.  Suppose I asked if it were necessary or advisable for me to consult consul before I could sign. Suppose the officer assured me that there was no liability incurred by signing the ticket.  I would be clearly “relying” on the traffic cop’s “fairness and honesty”.  Could I later use my reliance to challenge the legal effect of the traffic ticket?

Suppose I expressly referred to the previous quoted text from Ruling Case Law and this Texas case, and I therefore refused to sign a traffic ticket (or perform any other act creating possible rights or duties) without first consulting an attorney.   Such refusal might get me thrown in the slammer and cause me to pay a substantial sum to retrieve my car out of the city vehicle pound.  But it would also gum up the traffic ticket process considerably.   The cop might have to spend an hour or more hauling me to jail, processing paperwork, etc. That’s an hour of more that he couldn’t be issuing tickets to meet his “quota”.  That kind of resistance, if practiced widely, might ruin the profitability of the traffic ticket racket.

It occurs to me that whenever the police are interrogating a subject without an attorney, there may be a presumption that the suspect is relying on the police officer’s “fairness and honesty”. Once the suspect “lawyer’s up,” he may be implicitly saying “I don’t trust you cops”.  If so, once the suspect therefore expresses his distrust for cops, the cops may have to stop talking to him.

This raises the possibility that the “de facto officer” doctrine may be ultimately based on the private individual’s expression of trust and reliance on the police officer.  If you trust him, he’s your fiduciary.  If you trust him and he’s your fiduciary, you are his beneficiary and you may be obligated to answer your fiduciary’s questions.

This is pure conjecture, but if we assume that the de facto officer doctrine is ultimately based on our trust in and reliance upon those individuals who appear to be peace officers (but are not)—then what would happen if a police officer approached you and your first remark was “I don’t trust you”?  Could the police officer (or even a judge) proceed against you without you first “relying upon” or trusting in his “fairness and honesty”?

What is the authority or power of a de facto officer over an individual, once that individual has declared that he does not trust the de facto officer?

The text of the Texas case continues:]

Similarly, Mr. Black says: “And again, aside from such relationship (that of trust or confidence), if one of the parties is ignorant of the law or of his legal position or rights, and the other is aware of this fact, and is also perfectly informed of the legal principles, rules, or statutes applicable to the existing state of affairs, and takes advantage of his superior knowledge and of the other’s ignorance, and so misrepresents and misstates the law as to induce him to enter into an inequitable bargain, or to part with rights or property which he might have retained, it is considered such fraud as to justify a court of equity in giving relief.”  Black on rescission and Cancellation (2d Ed.) Vol. 1, pp. 188, 189, Sec. 71.

[OK—if the other party (the traffic cop) is “perfectly informed of the legal principles, rules, or statutes,” and takes advantage of his “superior knowledge” to deceive an unwitting driver into entering into an “inequitable bargain” or parting with “rights and property he might have retained,” the driver might be able to file a complaint in equity against the traffic cop.

But what if the traffic cop is no “perfectly informed” concerning the law?  What if the traffic cop is almost as ignorant of the law as the driver he’s trying to ticket?  The “perfectly informed” text quoted by the court would seem to exempt the traffic cop from liability for misquoting the law.  I.e., there can be no deception or misrepresentation unless the party making the false claims knows those claims are false.

But, if the traffic cop denied that he was “perfectly informed” concerning the relevant law, how is it that he, too, couldn’t be charged with “ignorance of the law is no excuse in the eyes of the law”?

When false statements are made, I see only two possible explanations:  1) ignorance (mistake); and 2) fraud (intent to deceive).  Therefore, once it’s established that a police officer has made a false statement concerning the relevant law, the officer must either admit that he was ignorant of the law (which is inexcusable in the eyes of the law) or that he acted intentionally and therefore fraudulently (which is an offense in equity).

If ignorance of the law is no excuse for me, it’s no excuse for the police officer either.

Nevertheless, police officers are routinely exonerated by the courts for their various little “mistakes” as to law.  Why?

I’m not sure.

But I’m beginning to suspect that the courts allow these “mistakes” in the context of a fiduciary relationship wherein the individual being tried for an offense is presumed to have begun his “transaction” with the police officer by trusting and relying on that officer.  It would be the individual’s initial trust/reliance on the “officer” that would create the fiduciary relationship.  If the individual trusted the de facto officer, any bad result that flows from that trust might be on the individual’s head rather than the cops.

To illustrate the principle, suppose you’re coming home from a saloon at night and you’re too drunk to drive.  Suppose you trust someone who is less drunk than you to drive your car, and he wrecks it, causing you to suffer serious injury.  If the second drunk didn’t ask to drive your car, but you trusted him to do so, I wonder if the second drunk is responsible for the wreck, or if you are.

I don’t know the answer to this hypothetical illustration.  But I’m beginning to suspect that if you’re dumb enough to trust someone who shouldn’t be trusted, the courts might be inclined to presume you are responsible for any subsequent damaged based on your imprudent placement of trust or reliance on a person who was unworthy of your trust.

I’m reminded of a businessman’s duty of “due diligence” as part of entering into agreements.  Due diligence requires that you fully investigate another party or the relevant facts and law of a transaction before you enter into it.  If your diligence is insufficient, you may be held liable for whatever adverse consequences you subsequently suffer.

On the other hand, if you perform your due diligence and you suffer subsequent injury, your case against the responsible party may be much stronger.

What, essentially is “due diligence”?  I’d say it’s an expression of distrust.  The reason I’m checkin’ you out before I sign any contract with you is ultimately because I don’t trust you.

If I perform my due diligence before we enter into an agreement, that agreement might be a contract to be decided at law.  If I fail to perform my due diligence, that would be evidence that I trust you and therefore our agreement is of a fiduciary nature.  If our initial agreement is of a fiduciary nature, it would follow that any subsequent claims of injury would be decided by a court of equity.

Again, this is pure speculation that’s offered as a possibility and a “though exercise” rather than a statement of fact.

The text of the Texas case continues:]

The opinion by Associate Justice O’Quinn in Garsee v. Indemnity Insurance Company of North America, Tex.Civ.App., 47 S.W.2d 654, 656, 657, contains the following: “The general rule is that misrepresentations or concealment as to a matter of law cannot constitute remedial fraud, because everyone is presumed to know the law, and therefore cannot in legal contemplation be deceived by the erroneous statements of law, and such representations are ordinarily regarded as mere expressions of opinion, on which the hearer has no legal right to rely.  12 R.C.L. p. 295, Sec. 59; 26 C.J. p. 1207, Sec. 106(E).  But it is equally well settled that misrepresentations involving a point of law will be held actionable misrepresentations of fact if it appears that they were so intended and understood. Likewise, redress may be had if one party possessed superior knowledge and took advantage of the other party’s ignorance of the law to mislead him by studied concealment or by misrepresentation, and this is especially true when confidential relations are obtained.”

[So far as I know, all fiduciary relationships are confidential.

Note that the court distinguishes between a misrepresentation of law and a misrepresentation of fact.

It is appears possible for a police officer to get away with a misrepresentation of law—but not of fact.

It also appears that a “misrepresentation of law” will be deemed an actionable misrepresentation of fact—if the misrepresentation was intended by the police officer (government employee) and “understood” (agreed to) by the ignorant suspect/defendant who relied on the officer.  The law apparently becomes a “fact” whenever it is intentionally misrepresented.

The court implies that the easiest way to prove fraud in equity is to prove misrepresentation by the police officer of fact.  Maybe, we can prove misrepresentation of law, maybe not.  But we can prove misrepresentation of facts.

For example, suppose the police officer sought to issue a traffic ticket wherein the location of the alleged offence was alleged to be in “this state” (say, TX or OK or NY) rather than within the borders of a State of the Union such as “The State of Texas”.  Suppose the traffic cop alleged the venue was within Dallas County” (of “this state”) rather than within “The County of Dallas” of The State.  Suppose the police officer alleged himself to be a “peace officer” of The State rather than an employee of “this state”.  If the “The State vs this state” hypothesis were valid, and “The State” and “this state” really do represent two different venues, then any police officer who claimed that you committed and offense in the fictional venue of “this state” rather than within the de jure venue of “The State” would appear to be guilty misrepresenting facts relevant to his claims.

According to the last text from the Texas court, misrepresentation of such facts may be evidence of fraud and grounds to attack the police officer’s allegations.

The Texas court case continues:]

But where one party, who possesses superior knowledge as to the law, takes advantage of the other party’s ignorance in that respect and intentionally makes a misrepresentation concerning the law for the purpose of deceiving the other party and actually succeeds in that respect, he may be held responsible for his conduct.”  Other authorities support the principle announced in the foregoing quotations. Schaeffer v. Blanc, Tex.Civ.App., 87 S.W. 745; Barber v. Keeling, Tex.Civ.App., 204 S.W. 139; Banker’s Life & Loan Association v. Pitman, Tex.Civ.App., 115 S.W.2d 1008; Madison Trust Company v. Helleckson, 2126 Wis. 443, 257 N.W. 691, 96 A.L.R. 992, and note, page 1001 and following; 15 Texas Law Review pp. 133, 134.

[The police can be held personally liable for misrepresentation (fraud).]

“Although defendant in error was not uneducated, not illiterate, and not without business experience, he was, when the representation was made to him, ignorant as to the terms and provisions of the Workmen’s Compensation Law and without experience in calculating the amount of compensation payable under it.  Dr. Mann, on the other hand, was an experienced adjuster of claims under that law, understood its provisions and knew how to determine the compensation payable to an injured employee either for total disability or for partial disability.  The parties in their negotiations for settlement were not on equal footing.  There was great disparity between the knowledge of the expert adjuster and that of defendant in error with respect to the particular subject about which the representation was made.  According to the jury’s findings, Dr. Mann used his superior knowledge of the subject in which he was an expert to take advantage of the ignorance of defendant in error as to that subject and misled him.”

[Contracts differ from trusts in several regards.  One such difference is that contracts at law always presume the two parties to have roughly equal in terms of bargaining power, rights and duties.  In a contract, make and equal exchange of their relative rights and duties.

Trusts, on the other hand, are based on inequality.  In broad strokes, the beneficiary has almost all of the rights; the fiduciary has almost all of the duties and control.

When the court wrote, “The parties in their negotiations for settlement were not on equal footing.  There was great disparity between the knowledge of the expert adjuster and that of defendant . . . ,” the implies that their relationship was based on trust, reliance and a fiduciary relationship subject to equity rather than law.]

When once it is established that there has been any fraudulent misrepresentation, * * * by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell  him that he might have known the truth by proper inquiry.  He has a right to retort upon his objector: ‘You, at least, who have stated what is untrue, * * * for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty.”  D’Labbe v. Corbett, 69 Tex. 503, 509, 6 S.W. 808, 811, Buchannan v. Burnett, 102 Tex. 492 495, 119 S.W. 1141, 132 Am.St.Rep. 900.

[That’s as much as I have on this case.  I suspect that my text on this case is incomplete.  I haven’t seen the actual case, and if any of you locate it, please forward a copy to me.

But note that the court is saying:

1) You must first establish there has been a “fraudulent misrepresentation” committed by your adversary.  This “fraudulent misrepresentation” might be of law, but is easily to prove as a misrepresentation of fact. More, you’ll have to prove that this false statement of fact or law was made intentionally—not by accident.  You must be able to show that your adversary “knew or had reason to know” that his statements were false.

2) Then, you have a right to say to your adversary, “'You, at least, who have stated what is untrue, * * * for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty.” 

It appears this statement may be sufficient to establish that you relied on your adversary’s “fairness and honesty” and therefore the entire proceeding can be attacked in equity and presumably estopped based on your adversary’s deceit, misrepresentation and fraud.

The previous article is the story of two competing maxims of law:  1) Ignorance is no excuse in the eyes of the law; and 2) fraud vitiates all agreements.

Ignorance is bad.

Fraud is worse.

Fraud trumps ignorance.]

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17 responses to “Ignorance of the Law is No Excuse–EXCEPT When . . .

  1. palani

    March 26, 2012 at 8:53 PM

    1) Ignorantia legis neminem excusat. Ignorance of fact may excuse, but not ignorance of law.

    2) Ignorance of law, consists in the want of knowledge of those laws which it is our duty to understand, and which every man is presumed to know.

    3) Ignorance of fact, is the want of knowledge as to the fact in question.

    4) Ignorance of the laws of a foreign government, or of another state; is ignorance of a fact.

    All of the above are courtesy of Bouviers 1856 Law Dictionary. 1) is under MAXIMS while 2), 3) and 4) are covered by the topic IGNORANCE. Reason and logic guide one in which laws one is responsible for (those of a domestic state, those which we have an established duty to understand and those which every man is presumed to know).

    I claim no need to understand the laws of Panama or other foreign entities. Neither do I claim to understand the laws of the United States (except for those DOMESTIC laws established by the U.S. constitution). Those laws which every man is presumed to know include (but are not limited to): not stealing, not killing, offering hospitality to strangers, not messing with strange women (eccentric women are ok though), not criticizing others leaders or governments, ….

     
  2. palani

    March 26, 2012 at 8:56 PM

    What is odd is that Bouvier does not include in his list of MAXIMS “Ignorance of the Law is No Excuse” so I would like to actually see a source that says this pseudo-MAXIM comes to us from Roman Civil law.

     
  3. manawainui

    October 15, 2012 at 2:25 PM

    Al,

    I am referring to your comment above about “trusts” in another (2nd party). You have mentioned that you feel that if one person puts all of his trust in another (2nd party) then the 2nd party screws up in the trust relationship then the 1st party might not have any relief granted to him if he knew that he shouldn’t have trusted the 2nd party in the first place.

    I agree to a certain point on this but not when it comes to trust law.

    Since all Public Servants (Public Trustees) are to be “trusted” by its Citizens (beneficiaries) and then those Public Servants injure or do not look out for the best interest of the beneficiaries, then the Public Servant has breached the Trust and his fiduciary relationship and should be held liable. Right?

    Also, when it comes to Debt Collectors who are trying to collect an alleged debt that they say you owe, it should then be best to tell them that you don’t trust them and then ask them that if all the information that they are alleging is true and correct without any false misrepresentation and with full disclosure.

    Do you think that this raises the issue that if they say “yes” and then I prove that they have acted in dishonor then they have committed fraud and misrepresentation (unfair and dishonest)?

    Especially that usually they provide fraudulent documents as alleged evidence to show an agreement between you and the alleged creditor. Also, they usually claim that the alleged creditor (some CC or Bank) is the “ORIGINAL CREDITOR” and owns the debt. This is a false statement because their bona fide authentic bookkeeping records will show that I am the ORIGINAL CREDITOR and that extending of credit does not create a debt to me whatsoever.

    Your thoughts please.

    Thanx for the insight on the great article above.

     
    • Adask

      October 15, 2012 at 2:58 PM

      I suspect that whenever you stand up for an “honorable” judge (or any other variety of politician) you may be entering into a trust relationship wherein you entrust the “honorable” man to “do the right thing”. That means the judge is acting in equity where he has maximum discretion. It’s very difficult to sue a judge that YOU allowed to act in equity (and exercise his personal discretion) if you don’t like the “honorable” judge’s ultimate decision. More, if you try to sue or appeal the judge’s decision, the alternative courts and/or appellate courts (who are also “honorable”) will almost certainly back the trial court judge. If you deemed him “honorable,” I SUSPECT that it may be the basis for a trust relationship. After all, what do you do with an “honorable” man? You TRUST him.

      If any of this conjecture were valid, it might be preferable to expressly deny that you trust the judge. Maybe your denial of the judge’s “honorability” and denial of your trust in him, might help to cause the case to be heard at LAW rather than in EQUITY.

      Maybe.

       
      • manawainui

        October 15, 2012 at 6:56 PM

        Thanx Al for the reply…..

        Although I do see your point about denying that I Trust the judge; if I express that I am the Executor and Beneficiary of an express Trust between me an “this State” and “this State’s” Public Trustees (Public Servants) and appoint the “honorable judge as a Public Trustee” and then tell that Public Trustee it is my intent to have him discharge the complaint (an assumsit of money owed – alleged) does he now have a fiduciary obligation to look out for the best interest of me the Beneficiary in which he now has to discharge the complaint; and if he doesn’t then he will be in breach of trust where he now can be sued in his personal capacity?

        And….

        if your conjecture were valid then it would be valid to express that you not deny that you trust the judge but also that you do not “trust” any “person” which will void any fiduciary obligations whatsoever….

        its like claiming/expressing that I do not RECOGNIZE the “person”. without recognition then there is no liability right? (according to Black’s 6th ed. recognition is also synonymous with recognizance)

        your thoughts please….

        Mahalo

         
    • Adask

      October 15, 2012 at 11:22 PM

      The question is not simply WHO do you trust. The question is WHICH trust to you want administered, and within that trust, what is your status.

      I believe each of our State and federal constitutions is an express, charitable trust. Within the State constitutions, I believe that he People are the beneficiaries and the government officers (and probably employees) are the fiduciaries. Within the the context of the federal Constitution, We the People are almost certainly the intended beneficiaries, but it’s at least arguable that the States of the Union (which are composed of We the People) are the actual beneficiaries.

      I am eager to appear in court as a beneficiary of The Constitution of The State of Texas.

      But the system has used some devices (such as citizenship and venue) to apparently reverse the trust relationship so that we are now presumed to be “fiduciaries” and the governments are presumed to be the beneficiaries.

      In essence, the “The State vs this state” hypothesis presumes that there are two “trusts”. In one (The States of the Union), the People are the beneficiaries, in the other (this state; a territory), the citizens, inhabitants, occupants, persons, etc. may be fiduciaries.

      I believe you get to “choose this day” whether you will appear within The State of Texas or in TX. Based on your choice of venue, I strongly suspect that you are presumed to have chosen to act as beneficiary (within The State of Texas) or a fiduciary (in “this state”).

      I suspect that when you stand in front of a judge who has an oath of office, you have an opportunity to specify WHICH trust you want him to administer. As a mere employee of “this state,” he has a fiduciary obligation to his corporate employer–not to We the People of The State. But based on his oath of office (to support and defend the Constitution of The State), he also has an obligation to administer the de jure Constitution on behalf those who IDENTIFY themselves as BENEFICIARIES of that Constitution/trust of The State of Texas. I strongly suspect that, unless you self-identify as one of the “People” of The State of Texas or “The State of New York,” etc., the judge that you “trust” will administer an implied trust relationship (rather than a relationship based on the express charitable trust we call The Constitution of The State of Texas).

      I believe I may be able to “trust” the judge so long as he recognizes me as one of the People and a beneficiary of the Constitution of The State of Texas and has an oath of office that binds him to administer that particular trust on my behalf. On the other hand, I do not believe that I can trust that judge to act in my best interests if he is allowed to act as an employee/fiduciary of the private, implied “trust” referred to as “this state”.

      I will not not “automatically” trust any judge to administer any implied trust on my behalf. I might trust that same judge to administer the express charitable trust we call The Constitution of The State of Texas, provided that that judge has 1) and oath of office; and 2) recognizes me as one of the People of The State of Texas.

       
      • manawainui

        October 16, 2012 at 1:17 PM

        GM Al…… I continue to thank you for your great insight on the matter; I enjoy your view and your points of understanding.

        please comment on the following.

        As you have mentioned about the opportunity to specify WHICH trust I want the judge to administer, then if I am a defendant in a complaint (although I presume that the defendant is a presumption of law of how this state views us – collective entity doctrine), I would want to clear up any presumption by explaining in my opening statement when the judge asks “state your name” it would be wise to say – “I am Manawainui, a Living-Sovereign, an Executor and Beneficiary, and one of the People of the State of Hawaii and this is a Court of Record”. Do you feel that just this statement alone will clear up the implied trust with the judge and have him see that I want him to administer the expressed charitable trust of the Constitution of the State of Hawaii?

        Should I also demand that he present his Oath of office which is required by the State of Hawaii Constitution Article 16 Sec. 4. And for the icing on the cake also present in to evidence my Certificate of Live Birth which is the proof of the Expressed Charitable Trust between the State of Hawaii and me as the Beneficiary?

        Do you feel that I can also do this in an Appellate Court as well?

        Mahalo for your time

         
      • Adask

        October 16, 2012 at 2:02 PM

        I’m not sure that you should “demand” any judge’s oath once you get into court. It might be too late to make that “demand”. The judge might not be obligated to accede to your demand.

        I don’t know what the correct or most effective procedure might be, but I suspect that it is up to YOU to do a pre-trial investigation of each officer or official you encounter in your case and independently acquire a verified copy of each officer/official’s oath of office. I suspect that once you have copies of each such officer’s oath of office, that you introduce those verified copies into the court record as evidence.

        More, the whole oath of office theory is based on YOU first expressly identifying yourself as one of the “people” of your State of the Union. This identification might be made known to everyone who handles the case: prosecutor/plaintiff, court clerk, magistrate, trial court judge, chief administrative judge BEFORE he even assigns the case to some trial court judge. I believe that the US Secretary of State (“SOS”) is responsible for all “political determinations”. I wonder if your State’s Secretary of State might also be responsible for all determinations of political status within your State of the Union. Maybe you should create an instrument that you file with your State SOS and/or the US SOS by means of registered mail that you might be able to introduce as evidence in your own case’s record that you are recognized as one of the “people”. Perhaps you could get two or three of your friends to sign simple affidavits declaring you to be “one of the People of The State of Hawaii” or some such.

        This theory is untested. The strategy is hypothetical. I don’t know what the proper strategy might be. However, I’m strongly confident that if you can: 1) identify yourself as one of the People and therefore a beneficiary of your State’s constitution; 2) produce evidence of the judge’s oath of office to support the state constitution; then 3) you may be able to demand that he (by virtue of his oath, but not employment) act as fiduciary for the express charitable trust called “The Constitution of The State of Hawaii” and administer that trust on your behalf because you’re one of the people/beneficiaries of that trust.

        All of this is an argument. I think it should work, but it might not. If this argument has any validity, it would be best to implement as soon as possible. Waiting until you get into court may be too late.

        But you should also have a “fall-back” position. I.e., what’ll you do if this strategy doesn’t work?

         
  4. manawainui

    October 16, 2012 at 1:38 PM

    Al,

    As I am thinking about this more…..

    I think then that the another way to handle this Trust situation is to also have the judge admit that we are in a court of equity law and because we are in a court of equity we are operating trust law; thus, I must now explain my status as: Living-Sovereign, Executor, Beneficiary, one of the people of the State of Hawaii. then, I must know their status in this trust relationship – public servant on the bench is appointed trustee, or should I appoint the prosecutor (attorney) the trustee.

    I guess the trick is to get the judge to be cornered to admit to the expressed charitable trust relationship and have him behave accordingly…. doing this by asking questions and having the judge make the record clear on what kind of trust is being implemented (so to speak).

    what is your feelings or experience about demanding the judge for his oath of office?

    Mahalo

     
  5. manawainui

    October 16, 2012 at 6:00 PM

    I guess that counterclaiming would be the “fall-back” position. At least I would be a counter plaintiff and thus I can still have my claims as one of the People and Beneficiary status solidified; and hold a power position to exercise my legal rights as a plaintiff, right?

    And again, I cant thank you enough for your energy on the matter.

    mahalo.

     
  6. Fernando Asante

    April 19, 2014 at 1:28 AM

    Alfred,
    Thanks for this very interesting piece. I happened upon it as I was searching information that I’ll be using to try and get a citation dismissed. If I may, I’d love to solicit your opinion/suggestion as well as your readers’ on this matter.

    I think I have a firm grasp of why the “ignorance of the law” principle exists. That said, I also like to believe that a reasonable judge would take into consideration the following argument that I will be making:

    1. In an informal survey with 20 San Francisco residents, NONE were aware of this particular ordinance
    2. The ordinance does not fall under what the average person would call “common sense” — i.e., it is a mystery why this particular ordinance even exists.
    3. Violation of this ordinance does not put anyone’s life in danger in any way.
    4. The officer mentioned that there is a sign and that I ignored this sign but on this busy downtown street, there are so many signs, buses, pedestrians, and bicyclists, it is highly improbable that an average driver would notice such a sign (related to the notion of “due process”)

    In addition to the above, shouldn’t the punishment fit the crime? If a person violates a city ordinance that (a) less than 5% of its residents are aware of, (b) one that falls outside of what most would consider common sense, and (c) one that does not put people’s lives in danger, is it really just and fair to slap a $200 fine on this person? Wouldn’t a warning be more appropriate?

    I tend to believe in the American justice system and feel that this is something I should argue – just based on principle. I’m curious to hear your and your readers’ thoughts on this.

    Thanks in advance.
    Kind regards,

    Fernando from SF

     
    • Adask

      April 19, 2014 at 3:22 AM

      I haven’t previously thought much about the idea (if I recall correctly) that “ignorance is no excuse for a crime“. But it’s important to discover whether “ignorance is no excuse for a crime” or ignorance is no excuse “for violating the law” or “for committing a penal offense”. Ignorance of the law is no excuse . . . for what?

      If it were true that ignorance of the law is no excuse for committing a crime, that might make good sense since the essence of every crime is criminal/evil intent. There is no criminal intent in penal offenses (which are civil in nature with an attached criminal penalty). There’s no criminal intent in civil offenses. But if you committed almost any act with a “criminal/evil intent,” you’d be guilty of a “crime” without needing to know what the underlying law might be. Your criminal/evil intent alone might be sufficient to establish that you’d committed a “crime”.

      IF that line of conjecture were valid, then it MIGHT follow that if you were charged with a civil or penal offense, there wouldn’t be any criminal/evil intent and therefore ignorance of the law might be a credible defense. Is it possible that the system is trying to trick you into accepting the “ignorance is no excuse” prosecution when it might not apply to civil offenses?

      I don’t know, but the question crosses my mind. Ignorance is no excuse in the eyes of the law . . . for what? Crimes? Civil offenses? Both?

      This is more conjecture, but it crosses my mind that it’s remotely possible that government’s civil offenses might arguably depend on sufficient notice and an absence of “ignorance”. Why must “ignorance” of civil offenses be eliminated? Perhaps, civil offenses are laws that require the pubic’s consent before they can be enforced.

      I won’t argue that any of this conjecture is true, but it’s at least an interesting possibility.

       
      • Fernando

        April 19, 2014 at 9:40 AM

        Thank you for your quick response; I very much appreciate that.
        Not being an attorney, I’m not sure if I fully understand your note but it seems you’re making a distinction between criminal and civil offense? My interpretation of the remaining is a bit fuzzy but it appears that I may or may not have a chance of getting the ticket dismissed.

        I did read your blog post on “Notice, right of inquiry & traffic tickets” (https://adask.wordpress.com/2014/01/20/notice-right-of-inquiry-traffic-tickets/#more-22170) and plan to take your suggestion and submit a document with a list of questions.

        Any advice that ties the “ignorance” principle to the list of questions would be very much appreciated.
        Thank you again Alfred.

        F

         
      • Adask

        April 19, 2014 at 1:26 PM

        I hadn’t thought about it before, but I can see that if the “right of inquiry” theory is correct, then your right to ask questions about the traffic ticket does presume you are probably “ignorant” about the ticket (notice) itself. Does that presumption of ignorance also apply to the alleged offense? If it’s true that we live in a legalistic world based on notice, did you receive a proper notice of being in a zone where your particular offense applied?

        In other words, you are constantly going through traffic zones where some traffic laws apply and others do not. Traffic laws are not uniform across the state and vary quickly from place to place. For example, the speed limit laws are constantly changing from 15 MPH to 30 MPH to 65 MPH depending on whether you’re in a school zone, residential zone or a highway zone. Your liability for obeying the laws of each zone depends on your ability to receive proper notice of the speed in each zone–and on the government’s ability to post a readable and effective notice of your entry into each zone. There might be an argument here that if the government’s notice of a particular traffic zone wasn’t easily legible and understandable, ignorance of the location of that traffic zone might be an excuse in the eyes of the law. I’m not talking about ignorance of the law. I’m talking about ignorance of the zone.

        If such argument were viable,you’d still have to be very good at presenting that argument. More, you’d have to expect to lose at the trial court level, and only win (if at all) at an appellate court level.

         
      • EarlatOregon

        April 21, 2014 at 2:51 PM

        .
        .
        .
        .

        .

        If you Lose at Trial level,
        but Win at Appeal level,
        doesnt that mean,
        the Judge Violated the Law?

        .
        .
        .
        .
        .
        .

         
  7. Fernando

    April 19, 2014 at 5:19 PM

    Great question about “proper notice” Alfred. In my very first post (point 4), I mentioned the following (I modified it slightly here to further clarify):

    4. The officer mentioned that there is a sign a few blocks away from where the violation occurred. He claimed that it was my responsibility to have noticed that sign.

    So, my question then is, if a city, any city, decides that it will begin enforcing a 3mph speed limit zone on a 10-block stretch and in order to give notice, it posts a 2×2-inch sign somewhere prior to the beginning of that 10-block stretch, would that be considered “proper notice”?

    I know the above 2×2-inch sign seems extreme but think about a major downtown street where there is constant traffic, buses, pedestrians, and bicyclists that a driver must navigate through. In that particular environment, the average driver is supposed to notice one particular sign among possibly dozens that says you cannot go straight but must make a right turn? It seems highly debatable that that would constitute proper notice…

    I feel I’m in the right from a common sense fairness perspective; I just don’t know if the law can be used to make my case.
    F

     

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