The Cornell University Law School defines “procedural due process” as follows:
“Principle required by the Constitution that when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard.”
Thus, procedural due process consists of two elements:
1) Notice; and
2) Opportunity to be heard.
The “opportunity to be heard” is typically a hearing where you will be found guilty about 98% of the time. Therefore, most reasonable people don’t want the “opportunity to be heard” because it is typically an “opportunity to be sentenced”.
I believe that “opportunity” can be avoided by controlling the notice. I.e., unless you consent to receive only an incomplete notice, the gov-co can’t take you to the “opportunity to be heard [sentenced]” until they’ve give you full and complete notice.
Strangely, my research implies that the notice recipient, rather than the notice sender, controls the express content of every notice. Whenever you receive a notice, you control whether or not that notice is sufficient to allow the sender to take you to the “opportunity to be heard [sentenced]”.
As I’ve previously suggested on this blog (see my multitude of articles on “notice” listed at: https://adask.wordpress.com/?s=Notice ), the proper strategy for dealing with a notice from any government agency may be to ask questions. If I’m right, you shouldn’t ever respond to notices with statements. You shouldn’t respond with silence, either. Instead, you should ask questions.
Because our modern gov-co is so far removed from constitutional government, it seems possible to ask questions whose answers would reveal the gov-co’s divergence from constitutionality. If gov-co can be forced to admit that divergence on the record, gov-co would lose much or all of whatever remains of its appearance of legitimate, constitutional authority. Insofar as even the appearance of authority is compromised, the gov-co is pretty much screwed.
Therefore, the ultimate object in my Notice and Right of Inquiry theory is to put gov-co in a position where they must answer my questions but if they do, they admit being a gang of treasonous whores rather than public servants. My object is to pose questions that are: 1) relevant; 2) which could be easily answered by gov-co; but which 3) gov-co dare not answer in public or on the record for, if they do, they’ll expose their whole racket.
If my theory is valid and if my questions are sufficiently insightful, the gov-co may be unable or unwilling to answer them. If gov-co won’t answer my questions posed in response to one of their notices, I believe they thereby deprive me of my “right of inquiry” (created by their notice to me) and thereby deprive me of adequate notice. I contend that without adequate notice, I’m denied the first element in procedural due process and my adversary (the gov-co) should thereby prevented from taking me to the “opportunity to be heard” where most people are found guilty about 98% of the time.
I.e., I strongly suspect that if I can create and introduce evidence into the record that the gov-co has refused to perform its duty to answer my questions, the gov-co will be thereby shown to have denied me sufficient notice. Because sufficient notice is the first component of procedural due process, I believe that refusing to answer my questions constitutes a denial of procedural due process.
Once I’m denied procedural due process, the gov-co should be prevented from proceeding against me, and the court may even be stripped of jurisdiction to continue to hear the case.
• I suspect that most people would think that a government notice would not be subject to any significant questions. When gov-co sends you a notice, you “salute and execute”—that’s all.
However, my research indicates that any notice is facially sufficient provided that it merely puts the recipient “on inquiry”. In other words, by law, a notice can be technically incomplete in that it fails to provide a complete statement of all relevant facts and all relevant law. However, that notice is still facially “sufficient” and legally acceptable if it merely causes a prudent recipient to ask questions about the relevant (but unstated) facts and law.
For example, suppose I loaned you $100 last month at the local saloon and you promised to repay me by the following Monday. Suppose a month has passed and you haven’t repaid the loan. Suppose I see you across the room in another saloon, I hold my hand up and rub my too fingers together the way some people gesture to a waiter to bring them their check. My mere, wordless gesture is a notice that you owe me $100 and I’d like to receive it.
Suppose you see my gesture and realize I’m asking about the $100 I loaned you over a month ago. You might walk over and say, “Gee, I’m sorry—I forgot all about that loan. Here, lemme buy you a beer,” and hand me the $100.
Or, alternatively, you might see that I’m obviously trying to communicate something to you with my gesture (trying to give you a notice) but not understand what my notice means. So, you walk over and say, “What’s up? What’re you signaling about?” If you did, you’d be exercising your “right of inquiry” that was created by my initial gesture/notice.
Your right of inquiry would create my correlative duty to answer your question. So in response to your question “What’re you signaling about?,” I might answer “The money.”
Just two words. In order to accommodate your right of inquiry, I’ve expanded my notice from one gesture to two words. If the two words (“The money.”) are sufficient to trigger your recollection of the loan, you would have sufficient notice and need ask no more questions and you might say, “Gee, I’m sorry—I forgot all about that loan. Here, lemme buy you a beer,” and hand me the $100.
On the other hand, you might still be mystified by my gesture and two word notice and ask “What money are you talkin’ about?”
In response to your question trigger by my previous notices, I would be compelled to answer: “I’m talking about the $100 bill with serial number 123456789 that I loaned you on Friday, July 5th at the Million Dollar Saloon in front of the witnesses Bob and Ted and Carol and Alice and which you expressly promised to repay no later than Monday, July 8th, A.D. 2013.”
Now, I could reasonably expect you to stop asking questions and say, “Gee, I’m sorry—I forgot all about that loan. Here, lemme buy you a beer,” and hand me the $100.
The points to my little story are:
1) My notice creates your right of inquiry.
2) Your right of inquiry creates my duty to answer your questions—if you ask any. But if you don’t ask, I have no correlative duty to voluntarily provide any unsolicited “answers” or to volunteer any additional information to you.
3) My initial notice need be no more extensive than is sufficient to trigger your recollection and appropriate response. If a mere gesture is sufficient to make you repay the $100, then a mere gesture is legally sufficient. If the gesture fails, and if you ask more questions, then I am obligated to expand my notice to two words “The money.” If those two words are sufficient to trigger your recollection of your debt, then the two words are sufficient notice. But if those two words don’t provide sufficient notice, then you are entitled to ask more questions and cause me to provide a much longer and detailed notice about the night when you borrowed the $100.
4) If the theory is true, then it follows that at every instance you (as notice recipient) control how extensive my notice(s) must be. As long as you have legitimate, relevant questions about my previous notice(s), I must either: a) expand or clarify my notice(s) until you comprehend whatever it is I’m trying to communicate; or b) cease my “collection” activities.
• I believe a very similar process takes place when we deal with the gov-co.
Gov-co sends me a notice that makes no express mention of the venue in which they presume I am acting. They make no mention of whether the currency they’re requesting is constitutional money or some privatized legal tender. They make no mention of the whether the basis for their authority is the Constitution or some private policy. They don’t say if they presume me to be an animal or a man made in God’s image and endowed by my Creator with certain unalienable Rights.
Gov-co might justify its laconic style of notice by saying that if they had to explain every relevant fact, law and authority that underlies their notice, the result might be document over one foot thick. There’s no point in giving people notice of how to build a clock if all they need to know is the time.
There’s a justifiable economy in allowing notices to be sent that are the smallest possible and need only be sufficient to trigger the recipient’s “right of inquiry”. The gov-co is no more interested in printing a phonebook-sized notice than I am in receiving and reading a document of that size. Thus, if I can understand a brief notice, there’s no need send a phonebook-sized document.
But, if I can’t proceed until I fully understand the abbreviated notice and I’ve been advised of every relevant fact and law, then I have the right to ask questions that will expand and clarify my understanding—and the gov-co will seemingly have the obligation to ultimately produce a phonebook-sized notice if that’s what I need to fully “understand” their notice.
• My analysis doesn’t mean that those who receive Notices must ask questions. It merely means that they have a right to ask questions which they would exercise if they had a lick of common sense. However, if they prefer to make statements in response to a notice they’re free to do so. Similarly, if they choose to remain silent in response to a notice, they’re free to do that, too.
My reading of relevant law suggests that if you make statements in response to a Notice, or go completely silent, in either case, you’ll have created the presumption that you’ve receive sufficient notice and you can now proceed to the “opportunity to be heard [sentenced]”. Once you’ve received sufficient Notice, government can proceed to the “opportunity to be heard” where you’ll be found guilty about 98% of the time—which is exactly where government wants to take you.
But—if you ask questions, those questions become evidence that you do not agree that you have as yet received sufficient notice. So long as you exercise your “right of inquiry” (created by the government’s notice), the government has to answer your questions before they can proceed to your “opportunity to be heard [sentenced]”.
If gov-co refuses to answer all of your relevant questions in response to one of their Notices, it’s my understanding that they will have thereby deprived you of “sufficient Notice” and thereby deprived you of the first element of “procedural due process” (which consists of 1) notice & 2) opportunity to be heard/sentenced).
More, if the government still tries to force you into the “opportunity to be heard (sentenced),” but you can prove you’ve been denied procedural due process (answers to all of your questions), then it’s my understanding that the court must dismiss the case for lack of jurisdiction. I can’t say it’s God’s truth, but it appears that if government doesn’t answer all of your relevant questions in response to their notices, they can’t legally take you to court (the opportunity to be heard/sentenced).
If the previous chain of conjecture is correct, you can see that an understanding of how a notice from gov-co creates your “right of inquiry”; how your “right of inquiry” creates gov-co’s correlative duty to answer your questions; and knowing what questions to ask—just might save you a few trips to the “opportunity to be heard [sentenced]”.
• A lady, Cecelia, has apparently read some of the articles I’d previous written on Notice and the Right of Inquiry. She’s bumping heads with the IRS and decided to pose just four questions. According to her emails (below), the IRS has so far failed or refused to answer her questions. Her emails reveal what may be a fundamental ploy by government to avoid answering questions in response to governmental notices.
I received the following email (the first of three) from “Cecelia” on the subject of “IRS audit”:
“I followed your advise on asking the 4 questions about income tax liability and sent it certified to the Abilene Tx office and they sent me a large pamphlet on The Truth About Frivolous Tax Arguments. He [the IRS employee/agent] sent a letter that said we are returning your protest so you can complete it. He checked a box that says Identify items you take exception to, the facts relating to them, and the law, regulations, or cases the protest is based on. What will be a good comeback? How do I get out of this? I am a nurse. I am not working at the present time. I live in Cross Plains, Tx. They didn’t like my deductions-mileage etc. Please help me!”
“I don’t know anything about your deductions or which of the IRS’s ‘facts’ you might object to.
“But if they sent you a ‘frivolous argument’ form letter, my question to you is this: Do you (and the IRS) understand the difference between an ‘argument’ and a ‘question’?
“If you only sent questions to the IRS, then you didn’t make any arguments (which are statements). If you didn’t make any arguments, then the IRS’s “frivolous argument” letter would seem to be irrelevant and improper—and perhaps evidence of mail fraud.
“If I were in a position similar to yours, and if I were sure that I had only posed questions to the IRS, then if the IRS complained about my “frivolous arguments,” I might write back to the IRS to ask if they understood the difference between questions and arguments; I’d ask if they could identify the arguments that I’d made in my first letter; and I’d ask them if they understood that their first response based on my allegedly “frivolous arguments” was not only wrong, but possibly fraudulent and therefore evidence of mail fraud.”
Cecilia sent me a second email:
“I also said—I regognize the fact that I don’t know the law. The 1040 includes jurat whereby I am suppose to swear that everything I write is true. Well how can I take such an oath if I don’t understand all of the revelant law? And given that virtually no living man truly understands Title 26, I cannot be presumed to know the relevant law. However I am getting old and easily confused, so I don’t like to answer questions over the phone. I like to pose my questions in writing so I won’t be misunderstood. It says in your letter to ask the IRS if we have any questions. Is the IRS obligated to answer my questions? I’ve been reading your posts, I guess you can tell. I hope I haven’t been too much trouble. Thank you again.”
“If you’ve received any notice or document from the IRS, look at the bottom to see if it has a line that says something like ‘If you have any questions, please call 1-800-555-1212.’
“If a statement similar to that is present in any of your documents, the IRS has apparently agreed to answer any of your questions in relation to that document [notice]. The fact that they’ve offered to answer those questions by phone may be merely a matter of convenience. It’s easier to call than to write.
“But the implication remains that if you have a right to ask questions, and you present your questions in writing and send them to the office from which the IRS notice/document originated, then they should have a correlative duty and obligation to answer your questions. If you send your questions in writing, they have an obligation to answer in writing. Writings (especially if sent by Registered Mail) can be introduced as evidence; phone calls generally cannot.”
Cecelia sent me a third email:
“I also told them that I was ignorant and confused. After I ask the 4 questions I went on to say that I didn’t understand Title 26. I also asked—How many taxpayers can afford to hire an attorney to answer questions before a 1040 is filed? Thank you I appreciate your help. He sent that letter saying—We are returning your protest.”
My third reply:
“You may be involved in a word game. If you sent them ‘questions’ and they claimed to return your ‘protest,’ they may be taking advantage of you. They may be falsely characterizing your questions as a ‘protest’ in order to avoid answering your questions.
“While the law might require them to answer your ‘questions,’ it appears that the law also allows them to return a ‘protest’ to the alleged ‘taxpayer’.
“I doubt that the law allows them to ignore your questions. If it were true that they were using the pretext of a ‘protest’ to avoid answering your questions, it may be that they could be charged with mail fraud for sending a false or misleading document through the mail.
“However, this is complex stuff. If part of your letter to the IRS could be fairly characterized as a protest and part was clearly questions, you might have to forget the ‘protest’ and send them another letter that included only questions. No statements, no arguments, no ‘protests’. Questions only. That might be helpful.”
As you can tell from Cecelia’s emails, she is relatively new to “tax resistance” and not too sophisticated in the use of law or language. But she has some common sense. I’m sure that anyone at the IRS office who read any of Cecelia’s letters would reach a similar conclusion.
Nevertheless, instead of offering some sort of sage advice to someone of Cecelia’s level of understanding, or even simply answer Cecelia’s “4 questions,” the IRS chose to:
1) falsely describe her questions as “frivolous arguments” (which consist one or more statements); and,
2) falsely describe her questions (letter of inquiry) as a “protest” (one or more statements).
I don’t know which “4 questions” were asked by Cecelia, but how hard could they be to answer? Why wouldn’t the IRS simply answer Cecelia’s questions—even if the IRS answered with lies or half-truths? Why falsely describe her questions as “frivolous arguments” or “protests”?
Are the IRS descriptions merely innocent mistakes made by IRS employees who are only marginally more sophisticated than Cecelia? Or, are those false descriptions made intentionally for the purposes of:
1) avoiding their duty to answer Cecelia’s questions; and/or
2), to create the false impression that Cecelia had made “statements” rather than questions in response to the IRS notice(s) so that Cecelia could therefore be presumed to have received sufficient notice and could therefore be taken to the “opportunity to be heard” where the odds were 49 to 1 that she’d be found guilty of something?
• I read Cecelia’s emails as evidence (not proof) that:
1) The IRS does not want to answer questions in writing;
2) The IRS will intentionally mischaracterize your questions as “frivolous arguments” or “protests” to avoid answering them; and,
3) The hypothesis I’ve advanced about Notice and Right of Inquiry may be largely correct.
All of which suggests that if you chose to implement a “Right of Inquiry” strategy in response to a Notice from the IRS or some other governmental agency, you shouldn’t be surprised if they respond by mischaracterizing your questions as “frivolous arguments,” “protests” and/or some other kind of text that we’ve yet to hear about.
If such mischaracterization takes place, after reading about Cecelia’s experiences, you might be better prepared to respond by writing yet another series of questions to the IRS (or whoever) asking if they know the difference between questions and arguments and/or protests. After all, a document from the IRS that mischaracterizes your first response as a “frivolous argument” and/or “protest” is just another notice. In this case, it’s a notice that they deem your questions to be arguments and/or protests. This second notice creates your second “right of inquiry”. It would probably be unwise to respond to their second notice with your own statements or your own silence. If they send one notice or twenty, I believe the proper response is to each and every time respond with questions sent by Registered Mail so as to be admissible if they try to drag you into court.
I suspect that if you can keep asking intelligent questions, in writing, sent to the IRS (or whoever) by Registered Mail (which creates admissible evidence) in response to every notice you receive, it’s possible that the IRS (etc.) will grow tired of sending notices and perhaps leave you alone.
• Finally, don’t suppose that every governmental notice is delivered in writing. Some Notices may be oral.
For example, what is a “Miranda Warning” if not a notice to the effect that “anything you say can and will be used against you in a court of law”?
“Anything you say can and will be used against you”? Anything?
What if I make a statement like, “That’s sure a pretty moon out tonight”? Will even that be used against me? What if I say “Officer Johnson, you’re a moron!” Will that be used against me?
It’s a stretch, but could it be that “anything you say” might be synonymous with “any statement you make” can and will be used against you?
I.e., if you respond to the Miranda Warning (notice?) by making any statement, will that statement be presumed to be evidence that you’ve received sufficient notice and can now be taken to the “opportunity to be heard [sentenced]” where you’ll be found guilty 98% of the time?
If so, what if, when an officer reads you a Miranda Warning, instead of invoking your right to remain silent (which, under my hypothesis, may also create the presumption that you’ve had sufficient Notice and can therefore be taken to the “opportunity to be heard/sentenced”)—you asked some questions?
No statements. Just questions.
The “Miranda Warning” gives you notice that any statement you make may be dangerous and therefore you have the “right to remain silent”. However, the Miranda Warning does not tell arrestees if they do or do not have the “right to ask questions”.
If my theory on Notice and Right of Inquiry is valid, and if the Miranda Warning is, in fact, a notice, then the Miranda Warning may be incomplete in that it fails to advise arrestees of their right to ask questions. If so, the Miranda Warning might be challenged for being intentionally incomplete and designed to deceive and mislead rather than provide Notice and a correlative right of inquiry.
Creating a record of relevant questions that you asked at or before the moment of arrest that the officers were unable or unwilling to answer might go a long ways towards stopping any subsequent prosecution as evidence of a denial of procedural due process.
• For example, what if—before you were ticketed or even arrested—you asked the arresting officer if he understood and agreed on the record that the arrest was taking place within the border of a State of the Union such as The State of Texas?
What if you asked if the officer presumed that this event was taking place in a “territory of the United States” such as TX or STATE OF TEXAS?
What if you asked the officer if he were de facto or de jure? Paid in gold or silver as per Article 1.10.1 of the federal Constitution or paid with fiat currency under Article 4.3.2?
Is he really a peace officer of The State of Texas?
Is he merely an employee for a private corporation acting as if it were the constitutional government?
As an employee of a private corporation, does he have a fiduciary duty to serve and protect that corporation or is he obligated to serve and protect the People of The State of Texas?
Does he recognize you as a man made in God’s image as per Genesis 1:26-28?
Does he understand that you are one of the “People” of The State of Texas as seen in the Preamble and Article 1 of The Constitution of The State of Texas?
Does he presume you to be a “citizen of the United States” as seen in the 14th Amendment?
Does he have any evidence to prove that you are a “resident” of “this state”?
If this arrest is taking place within the borders of a State of the Union, does he have any authority in that venue?
We can think of scores of questions that we might like to ask the traffic cop. As a practical matter, you’ll only be able to ask one, maybe three, question(s) at most before the officer senses your strategy and stops answering your questions. Therefore, you’d better be prepared to first ask whichever question seems most relevant to you, because that might be your only chance to ask questions on the record and from outside of a cell.
Don’t plan on asking Twenty Questions, because you can bet the officer won’t play that game.
• It’s conceivable that, if my theory about Notice and Right of Inquiry is valid, the entire traffic ticket and most arrest scenarios may be a kind of “notice drama” wherein the officer gives you a notice and by means of your silence or statements, presumes that you’ve had enough notice to proceed to the “opportunity to be heard [sentenced]”. I’d bet that each initial contact with the police is truly a “notice drama”.
For example, in the matter of a traffic ticket, the officer’s notice to you might begin when the officer flashes his “emergency lights” and thereby gives notice that he’s presuming a “state of emergency” to exist. If that were true, then, when the officer approached your vehicle one of the most intelligent questions you could ask might be “What are the facts and cause of the emergency that you’re claiming to exist?”
What about the gold-fringed flag on the officer’s uniform? Is that merely a decorative statement of national patriotism? Or is it a notice that this officer is only authorized to enforce the law within a federal territory—but not within the borders of a State of the Union?
What about the rest of the paraphernalia that constitutes the officer’s uniform or the verbiage on the vehicle he drives? Does any of that paraphernalia or verbiage constitute a notice? If so, do we have a correlative right of inquiry to ask questions about the uniform, the vehicle, the venue the officer presumes to apply in this matter, and the authority under which the officer presumes to act?
• Back in the 1990s, I saw a section of the California traffic code that expressly described a traffic ticket as a “notice”. If all traffic tickets are notices (and if my Notice/Right of Inquiry hypothesis is valid), then the traffic ticket opens the door to asking some interesting questions—certainly, before—and perhaps even after—you sign that Notice.
Maybe the emergency lights and the gold-fringed flags constitute a kind of notice that creates your right of inquiry. Maybe not.
But if the traffic ticket is a notice, I’ll bet that your signature on that notice may be presumed to constitute a kind of “statement” that’s deemed to be evidence that all your questions have been answered, that you agree that you’ve received sufficient notice, and that you’ve consented to now pay the fine and/or go to the “opportunity to be heard” (municipal court) where (as I’ve said repeatedly) you’ll be found guilty about 98% of the time.
If this conjecture were true, what would happen if sometime before the officer hands you a ticket and asks for your signature (“statement”?), you managed to ask, say, three to five very pertinent questions about the venue, his authority, his presumptions, and your nature, etc.?
What if the officer couldn’t or wouldn’t answer all of your questions? Would the officer’s apparent refusal to provide you with sufficient notice be enough to prove a denial of procedural due process? Could that denial of procedural due process be sufficient to nullify the validity of your subsequent signature on the traffic ticket?
Inquiring minds wanna know.
• I have no way of knowing what an officer’s reaction to a series of questions in the context of a traffic stop might be. But, as seen in Cecelia’s story (above), the IRS is telling lies in order to avoid answering questions. So it seems that the “right of inquiry” concept may have some teeth.
Therefore, if you were being recorded on video or audio when you were stopped by a traffic cop and you posed such questions, I suspect that your questions might later be introduced into the record as evidence that you were denied procedural due process and the court therefore had no jurisdiction.
• I do not recommend that anyone automatically believe the conjecture I’ve presented in this article or apply this conjecture in your next traffic stop. Still, you might want to consider this conjecture and roll it around in the back of your mind to see if it makes any sense to you. Then—what th’ hey?—next time you have a traffic ticket, ask a few questions and see what happens. Let us know if your questions seemed to have any effect or if they were ignored as meaningless.
The nice thing about questions is that they don’t create additional liability. So far as I can see, no matter what kind of mess you’re in, you might make the mess worse by making statements or even going completely silent, but you can’t make things worse by asking questions—and you might make things a lot better.
• Now, it’s your turn, reader (if you care to take a “turn”).
Now, you can post whatever relevant comments you like on this blog as to whether the Notice and Right of Inquiry theory is valid or flawed.
More, you can even share and speculate on some fundamental questions that you think that you should ask each time you’re faced with a traffic ticket/notice. By working together in the “comments” section, we might find five fundamental questions. We might find three. We might find ten. Your questions wouldn’t have to be identical to my own, but they might be similar. I’m sure that if you saw my questions, and I saw yours, both of our question “arsenals” would be improved.
We might even refine our questions and print them on a pair note cards that we could keep in our automobile. If you were stopped for a traffic ticket, you might hand one copy of the note-card questions to the officer and keep the other for yourself as a kind of script so you remembered and expressly asked (on the video record) whichever questions you thought might be most relevant and insightful.
So, if you have any thoughts or comments on this article, let’s hear ‘em; let’s share ‘em; let’s see if we can discover and refine a handful of questions that might be sufficient to nullify the force of a traffic-ticket/notice.