William Jones 10000 Mount High Blvd. Nowhere, California SUPERIOR COURT OF CALIFORNIA COUNTY OF CALAMITY William Jones ) CASE NO. ________ ) Plaintiff, ) RULING ) RE MOTION FOR CONTEMPT v. ) ) (CONFIDENTIAL ROBERT SMITH, father of ) PERSONNEL MATTER) MARY SMITH, a minor ) and STATE OF CALIFORNIA ) DATE: October 12, 1999 ) TIME: 8:30 a.m. Defendants. ) DEPT: 666 ) ) ________________________________)_____________________________________________COMES NOW THE COURT to review the law, the facts, and the record, and to rule accordingly:
SUMMARY Oliver Wendell Holmes once wrote, "I long have said there is no such thing as a hard case. I am frightened weekly, but always when you walk up to the lion and lay hold, the hide comes off and the same old donkey of a question of law is underneath."1
Through unplanned circumstance, duty falls upon this court of record to lay hold of the lion, unhide the underlying question of law, and do what is necessary to preserve the rights of the parties to orderly due process and the good conduct of the business of this court, and to vindicate the authority and dignity of this court in the face of an apparent modern palace rebellion.
The question before this court is whether acts of the accused persons are contempts of the authority of this court:
According to the moving party's affidavit, the accused understood, or should have understood that the court expected that the plaintiff would file a first amended action. According to the moving party's affidavit, the day following the filing of the first amended action the accused conspired to remove the paper, and did remove the paper from the official court records.
The moving party requests that this court invoke its contempt powers to preserve the rights of the parties to orderly due process and the good conduct of the business of this court, and to vindicate the authority and dignity of this court.
No objection as to the sufficiency of the affidavit was presented to this court during the fact-finding phase of the trial.2 During the conclusionary phase3 the magistrate did opine his own personal view.4 However an objection was raised5, and the objection was not overruled6 but sustained by implication.
SEALING OF RECORDS
Although the contempt hearing is held in open court, the papers of this personnel matter are ordered sealed to protect the privacy of the subject persons. This ruling may be either verbally or in writing ordered unsealed any time in or out of court session by Roy LeGume, William Jones, or any court of record.
APPEARANCES
On October 14, 1999 the motion for contempt presented by William Jones came before the above-entitled court of record. Present were Roy LeGume as respondent, and William Jones as moving party. Roy LeGume also presided as magistrate. Iholda Fylings did not appear, though she had been served notice.
This following is organized into four sections:
I. Judicial cognizance
II. Findings of fact
III. Discussion and Conclusions of Law
IV. Impeachment and Penalty
I. JUDICIAL COGNIZANCE
This court takes judicial cognizance and decrees as follows:
JUDICIAL COGNIZANCE. Judicial notice, or knowledge upon which a judge is bound to act without having it proved in evidence. [Black's Law Dictionary, 5th Edition, page 760.]
"It is the public policy of this state that public agencies exist to aid in the conduct of the people's business....The people of this state do not yield their sovereignty to the agencies which serve them." [California Government Code, Section 11120.]
In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business....The people of this State do not yield their sovereignty to the agencies which serve them. [California Government Code Section 54950.]
Laws, whether organic or ordinary, are either written or unwritten. [California Code of Civil Procedure, Section 1895.]
A written law is that which is promulgated in writing, and of which a record is in existence. [California Code of Civil Procedure, Section 1896]
The organic law is the Constitution of Government, and is altogether written. Other written laws are denominated statutes. The written law of this State is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States. [California Code of Civil Procedure, Section 1897]
Any judicial record may be impeached by evidence of a want of jurisdiction in the Court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings. [California Code of Civil Procedure, Section 1916]
...at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects...with none to govern but themselves..... [CHISHOLM v. GEORGIA (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL (1793) pp471-472.]
The very meaning of 'sovereignty' is that the decree of the sovereign makes law. [American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas. 1047.]
The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative. [Lansing v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3, 7.]
A consequence of this prerogative is the legal ubiquity of the king. His majesty in the eye of the law is always present in all his courts, though he cannot personally distribute justice. (Fortesc.c.8. 2Inst.186) His judges are the mirror by which the king's image is reflected. 1 Blackstone's Commentaries, 270, Chapter 7, Section 379.
....This declaration of rights may not be construed to impair or deny others retained by the people." [California Constitution, Article 1, Declaration Of Rights Sec. 24.]
The state cannot diminish rights of the people. [Hurtado v. People of the State of California, 110 U.S. 516.]
The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice. [Davis v. Wechsler, 263 US 22, 24.]
Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. [Miranda v. Arizona, 384 US 436, 491.]
There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights. [Sherer v. Cullen, 481 F 946.]
Whereas, the people of California have presented a constitution....and which, on due examination, is found to be republican in its form of government.... [Act [of Congress] for the Admission of California Into the Union, Volume 9, Statutes at Large, Page 452.]
Republican government. One in which the powers of sovereignty are vested in the people and are exercised by the people, either directly, or through representatives chosen by the people, to whom those powers are specially delegated. [In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219; Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627." Black's Law Dictionary, Fifth Edition, p. 626.]
The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land. [California Constitution, Article 3, Sec. 1.]
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [Constitution for the United States of America, Article VI, Clause 2.]
COURT. The person and suit of the sovereign; the place where the sovereign sojourns with his regal retinue, wherever that may be. [Black's Law Dictionary, 5th Edition, page 318.]
COURT. An agency of the sovereign created by it directly or indirectly under its authority, consisting of one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of the law, authorized to exercise its powers in the course of law at times and places previously determined by lawful authority. [Isbill v. Stovall, Tex.Civ.App., 92 S.W.2d 1067, 1070; Black's Law Dictionary, 4th Edition, page 425]
COURT OF RECORD. To be a court of record a court must have four characteristics, and may have a fifth. They are:
A. A judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it [Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689][Black's Law Dictionary, 4th Ed., 425, 426]The following persons are magistrates: ...The judges of the superior courts.... [California Penal Code, Sec. 808.]
B. Proceeding according to the course of common law [Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689][Black's Law Dictionary, 4th Ed., 425, 426]
C. Its acts and judicial proceedings are enrolled, or recorded, for a perpetual memory and testimony. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231]
D. Has power to fine or imprison for contempt. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231.][Black's Law Dictionary, 4th Ed., 425, 426]
E. Generally possesses a seal. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231.][Black's Law Dictionary, 4th Ed., 425, 426]
...our justices, sheriffs, mayors, and other ministers, which under us have the laws of our land to guide, shall allow the said charters pleaded before them in judgement in all their points, that is to wit, the Great Charter as the common law.... [Confirmatio Cartarum, November 5, 1297" "Sources of Our Liberties" Edited by Richard L. Perry, American Bar Foundation.]
"Henceforth the writ which is called Praecipe shall not be served on any one for any holding so as to cause a free man to lose his court." Magna Carta, Article 34.
CCP 1209. (a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:
. . .CCP 1211.
3. Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service;
4. Abuse of the process or proceedings of the court, or falsely pretending to act under authority of an order or process of the court;
5. Disobedience of any lawful judgment, order, or process of the court;
. . .
8. Any other unlawful interference with the process or proceedings of a court;
. . .
11. Disobedience by an inferior tribunal, magistrate, or officer, of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is removed from the jurisdiction of such inferior tribunal, magistrate, or officer.
. . .
(c) Notwithstanding Section 1211 or any other provision of law, if an order of contempt is made affecting an attorney, his agent, investigator, or any person acting under the attorney's direction, in the preparation and conduct of any action or proceeding, the execution of any sentence shall be stayed pending the filing within three judicial days of a petition for extraordinary relief testing the lawfulness of the court's order, the violation of which is the basis of the contempt. . . [California Code of Civil Procedure]
(a) When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.CCP 1211.5. At all stages of all proceedings, the affidavit or statement of facts, as the case may be, required by Section 1211 shall be construed, amended, and reviewed according to the followings rules:
When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.
(b) Filing of the Judicial Council form entitled "Order to Show Cause and Affidavit for Contempt (Family Law)" shall constitute compliance with this section. [California Code of Civil Procedure]
(a) If no objection is made to the sufficiency of such affidavit or statement during the hearing on the charges contained therein, jurisdiction of the subject matter shall not depend on the averments of such affidavit or statement, but may be established by the facts found by the trial court to have been proved at such hearing, and the court shall cause the affidavit or statement to be amended to conform to proof.Any question as to the adequacy of an order to show cause [see Code Civ. Proc. § 1212[Deering's] ] and of the adequacy of the affidavit or declaration on which the order to show cause is based should be raised by an opposing affidavit or declaration [Morelli v. Superior Court (1968) 262 Cal. App. 2d 262, 266, 68 Cal. Rptr. 572 ] having the effect of a demurrer [see Taylor v. Superior Court (1942) 20 Cal. 2d 244, 246, 125 P.2d 1].
(b) The court may order or permit amendment of such affidavit or statement for any defect or insufficiency at any stage of the proceedings, and the trial of the person accused of contempt shall continue as if the affidavit or statement had been originally filed as amended, unless substantial rights of such person accused would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.
(c) No such affidavit or statement is insufficient, nor can the trial, order, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the person accused on the merits. No order or judgment of conviction of contempt shall be set aside, nor new trial granted, for any error as to any matter of pleading in such affidavit or statement, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.
1218. (a) Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), or he or she may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney's fees and costs incurred by this party in connection with the contempt proceeding.
II. FINDINGS OF FACT
THIS COURT FINDS the following facts to be certain:
Plaintiff had leave of court to file a first amended action.7 Failure to file a first amended action by a date certain would result in forfeiture of plaintiff's right of recovery with prejudice .8
The magistrate and parties were duly notified of Plaintiff's leave of court and were given 33 days in which to show cause why the order should not take effect or should be modified.9 The magistrate and parties remained silent--by their lack of action and lack of objection they tacitly agreed with the order.
A first amended action was filed in this court on June 7, 1999.10
The deputy clerk of this court, by her own certified admission, did not collude with the magistrate. However, she did accept, via undue influence, the magistrate's unauthorized redirection of her duties which resulted in the vacating of the plaintiff's first amended action.11 That is to say, her will was overpowered and she was induced to do an act which she would not do if left to act freely: she was deprived of free agency so that her will was replaced by the will of the magistrate. Specifically, she says that, "The Court directed said Clerk to reject the above document..." and because of that, "...the said Clerk petitions this Court that a [sic] order be made vacating...", which in turn leads to the "ORDER" that, "Pursuant to the Certificate of the Clerk and good cause appearing, it is hereby ordered that the 1ST AMENDED ACTION OF TRESPASS, AND TRESPASS ON THE CASE is hereby vacated." Removing the clerk from this anomaly of logic, we are asked to believe that because the court directed the rejecting of the document, the court then ordered the document vacated. Because this court did not direct the clerk to reject the document, and because there was no notice and no hearing on the matter, this is an attempt to commit a fraud upon the court under color of law.
The magistrate of this court, by his own admission12, directed13 the clerk to reject the first amended complaint. Then, when the clerk submitted her certificate, the magistrate, by his own admission, without the benefit of notice to the parties or open court or hearing, signed the order, under color of law14, vacating a first amended action previously authorized15 by order of this court, though, also by his own admission, he has no claim against the plaintiff and knows of no-one who does have a relevant claim against the plaintiff.16
The magistrate is a person appointed or elected to perform ministerial service in a court of record17 because all judicial functions in a court of record are reserved to the tribunal which must be independent of the magistrate.
The magistrate of this court has usurped the independent powers of the tribunal of this court of record by making discretionary judgements which are reserved to and should have been made by the tribunal independently of the person of the magistrate designated generally to hold it.18
The magistrate of this court, by his own admission19, antecedent to any hearing by the court or notice to any of the parties, under color of law usurped the authority of the court and directed the clerk of the court to reject the first amended action.
The magistrate of this court unduly used his position and influence to redirect the deputy clerk's duties which resulted in the vacating of the plaintiff's first amended action.20
III. DISCUSSION AND CONCLUSIONS OF LAW
On October 7, 1998, William Jones filed an Action of Trespass for Damages. The opening sentence decreed, "This is a court of record." In defendant's demurrer, and later his answer, there was no objection to the court being a court of record. Nowhere in the record is there any objection from magistrate or defendants regarding this court being a court of record.
On May 5, 1999 this court determined that William Jones is one of the people as contemplated in the preambles of the constitutions, this court is a court of record, and all parties were properly so apprised.21 Building on that, the court issued a show-cause writ of error.22 Throughout the writ the concept of a court of record was asserted. The magistrate, plaintiff, and defendants were each invited to file and serve on all other interested parties a brief no later than June 7, 1999 to show cause why the order should not take effect or should be modified.23 No objections or briefs were served or filed--the magistrate and parties, by their lack of action and lack of objection, tacitly accepted the writ and its supporting papers.
It is the design of our systems of jurisprudence that courts have no jurisdiction until a party comes forth and declares a cause needing resolution. The particular jurisdiction depends upon how the cause is declared by the plaintiff. Jurisdiction may be administrative, at law, in equity, or in any of many other formats. In this case the jurisdiction is at law in a court of record under the sovereign authority of one of the people.
It is essential to understand what are a sovereign, a magistrate, a court, and a court of record.
A court is "The person and suit of the sovereign."24
Who is the sovereign? It is the people either in plural25 or in singular capacity.26 In singular capacity, in this case, it is William Jones, one of the people as contemplated in the preambles of the 1849 Constitution for California, the 1879 Constitution for the State of California, and the 1789 Constitution for the United States of America.
California, the State of California, and the United States of America have no general sovereignty. Theirs is a clipped sovereignty. Whatever sovereignty they have is limited to their respective constitutionally defined spheres of control. The general sovereignty is reserved to the people without diminishment.27 Lest that be forgotten, the California Government Code twice admonishes the public servants that, "The people of this state do not yield their sovereignty to the agencies which serve them."28 Further, when the State of California did attempt to diminish one's rights, it was determined that the state cannot diminish rights of the people.29
It is by the prerogative of the sovereign30 whether and how a court is authorized to proceed. In this case, the chosen form of the court is that of a court of record.
This court recognizes the good work of the legislative and judicial branches of the United States of America and has adopted the Federal Rules of Civil Procedure as its own rules.31 This is compatible with the choice of the California Legislature which expresses its will through the California Code of Civil Procedure, Section 1897 which states in part, "The written law of this State is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States." The State of California itself recognizes the validity of the laws of the United States of American and adopts those laws as it own.
A qualifying feature of a court of record is that the tribunal is independent of the magistrate appointed to conduct the proceedings.32
The magistrate is a person appointed or elected to perform ministerial service in a court of record33. His service is ministerial because all judicial functions in a court of record are reserved to the tribunal, and, by definition of a court of record, that tribunal must be independent of the magistrate. The non-judicial functions are "ministerial" because they are absolute, certain and imperative, involving merely execution of specific duties arising from fixed and designated facts.
In this instant question the magistrate unduly chose to personally bypass all procedure, direct the court deputy clerk to reject the first amended action, and then signed the accompanying preprinted order without proper hearing or notice to any of the affected parties. That exceeds the jurisdiction of a magistrate who only possesses ministerial authority separate from the authority of an independent tribunal of a court of record.
On more than one occasion the magistrate has indicated his preference for California rules.34 So be it for his cause. This court, for purposes of accommodating the accused's choice of law, adopts the California Code of Civil Procedure as it relates to contempt of court. Let there be no doubt as to the justness of this proceeding for the accused.
California Code of Civil Procedure, Section 1209 provides that acts in respect to a court's proceedings are contempts of the authority of the court if a person who is appointed or elected to perform a ministerial service misbehaves, neglects, or violates a duty; or if a person falsely pretends to act under authority of an order or process of the court; or if a person disobeys any lawful judgment, order or process of the court, engages in any other unlawful interference with the process or proceedings of a court; or if an inferior magistrate interferes with the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is removed from the jurisdiction of such inferior magistrate.
As the magistrate pointed out,35 "[CCP] Section 1209, in no manner, allows for a Court to hold itself in contempt." That is true, but that is not the issue before this court. The issue is whether or not the accused persons are to be held in contempt. The magistrate holds only ministerial authority. He holds no tribunal authority and cannot in any way substitute himself as the total equivalent of the court to thus exempt himself from jurisdiction. CCP 1209 provides that contempt may be applied to "Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service;" The magistrate, is an "other person, appointed or elected to perform a ... ministerial service" as described in CCP Section 1209.36
Depriving anyone of the right to have his day in court is very serious. The magistrate has a duty to the plaintiff to minister the opportunity to argue the petition put forth by the deputy clerk. "He who decides a case with the other side unheard, though he decide justly, is himself unjust."37 To summarily remove a first amended action that has been previously sanctioned38 by the court constitutes a direct challenge to the court's authority, especially when the magistrate's judicial jurisdiction is estopped and he tacitly declines a fair opportunity to show cause why he is should not be subject to estoppel.39
California Code of Civil Procedure, Section 1211 provides that "When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt." In this instance an affidavit of the facts constituting the contempt was presented to this court and not to a judge.40
There was no opposing affidavit. California Code of Civil Procedure, Section 1211.5 (a) provides, "If no objection is made to the sufficiency of such affidavit or statement during the hearing on the charges contained therein, jurisdiction of the subject matter shall not depend on the averments of such affidavit or statement, but may be established by the facts found by the trial court to have been proved at such hearing, and the court shall cause the affidavit or statement to be amended to conform to proof." In this instance no such objection was made to the court, and this court finds that the unamended affidavits are sufficient to establish the jurisdiction.
IV. IMPEACHMENT AND PENALTY
THE COURT, HAVING REVIEWED THE FACTS AND THE RECORD, FINDS THAT
Iholda Fylings is adjudged not guilty of contempt of this court; and
Roy LeGume is adjudged guilty of contempt of this court; and
Roy LeGume shall pay a fine of one dollar ($1) within 60 days of entry of this ruling. If the fine is not timely paid, or if this court in the future should otherwise see the need, this court shall forward appropriate notice and a copy of all transcripts and papers in this matter to the California Council on Judicial Performance; and
Attorney's fees and costs awarded to William Jones: None asked and non awarded.
Execution of this order shall be stayed pending the filing within six judicial days of a petition for extraordinary relief testing the lawfulness of this court's order or a notice of intent to file within 30 days a motion for reconsideration.
WITNESS: the SEAL of the COURT this _____ day of January, 2000.
THE COURT
WILLIAM JONES
Private Attorney
=====================================================
NOTE-01 1 Holmes-Pottock Letters 156
NOTE-02 Transcript, October 14, 1999, page 2, lines 5 through page 3, line 15
NOTE-03 Ibid., page 3, line 16 through page 6, line 4
NOTE-04 Ibid., page 5, lines 3-14
NOTE-05 Ibid., page 5, lines 14-15
NOTE-06 Ibid., page 5, line 16
NOTE-07 Plaintiff's Exhibit 17, page 4, lines 5-12
NOTE-08 Ibid.
NOTE-09 Ibid., lines 17-20
NOTE-10 Plaintiff's Exhibit 13, Clerk's Certificate
NOTE-11 Ibid.
NOTE-12 Plaintiff's Exhibit 14, page 3, lines 12-25
NOTE-13 Plaintiff's Exhibit 13, body of order
NOTE-14 Plaintiff's Exhibit 13, ". . .good cause appearing. . ."
NOTE-15 Plaintiff's Exhibit 17, page 4, lines 5-9
NOTE-16 Plaintiff's Exhibit 14, page 3, lines 1-10
NOTE-17 Official's duty is "ministerial" when it is absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts. [Long v. Seabrook, 260 S.C. 562, 197 S.E.2d 659, 662; Black's Law Dictionary, Fifth Edition, p 899
NOTE-18 One characteristic of a court of record: A judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it [Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689][Black's Law Dictionary, 4th Ed., 425, 426]
NOTE-19 Transcript, October 14, 1999, page 2, lines 7-26, page 3, lines 1-10:
MR. JONES: The only question I have at this point in time concerns Miss Fylings's certified document where she states that she was directed to do what she did. My question would be, who is the entity that ordered her to do so? I do not know who that would be at this time.NOTE-20 Ibid.
MAGISTRATE: Well, if you looked in the file, there's a certificate and order vacating documents which says -- filed June the 9th -- that I signed on June the 9th that bears my signature. And it's in the file too, okay.
MR. JONES: You're the entity who directed her to do what she did?
MAGISTRATE: I said, "Pursuant to the Certificate of the Clerk and good cause appearing, it is hereby ordered that the first-amended action of trespass on the case is hereby vacated."
MR. JONES: Okay. I understand that aspect of the certification, but she states she was directed to do so.
MAGISTRATE: Uh-huh.
MR. JONES: I wish to know the entity that directed her to do that.
MAGISTRATE: I did. I just said I did. The California Superior Court did, State of California.
MR. JONES: That's the only point I need to clarify at this point in time.
MAGISTRATE: In and for the County of Calamity -- the Superior Court, by myself, in and for the County of Calamity. It's right in the file.
NOTE-21 Plaintiff's Exhibit 16, page 1, lines 25-28
NOTE-22 Plaintiff's Exhibit 17
NOTE-23 Plaintiff's Exhibit 17, page 4, lines 17-22
NOTE-24 Black's Law Dictionary, 4th Ed., 425, 426
NOTE-25 PEOPLE, n. [L. populus.] The body of persons who compose a community, town, city or nation. We say, the people of a town; the people of London or Paris; the English people. In this sense, the word is not used in the plural, but it comprehends all classes of inhabitants, considered as a collective body,… Webster's 1828 Dictionary
NOTE-26 PEOPLE…considered as….any portion of the inhabitants of a city or country. Ibid.
NOTE-27 "...at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects...with none to govern but themselves" CHISHOLM v. GEORGIA (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL 1793 pp471-472
The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative. Through the medium of their Legislature they may exercise all the powers which previous to the Revolution could have been exercised either by the King alone, or by him in conjunction with his Parliament;…" Lansing v. Smith, 4 Wendell 9 (N.Y.) (1829), 21 American Decision 89; 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 1`67; 48 C Wharves Sec. 3, 7.
NOTE-28 California Government Code, Sections 11120 and 54950
NOTE-29 Hurtado v. People of the State of California, 110 U.S. 516
NOTE-30 "...at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects...with none to govern but themselves..... [CHISHOLM v. GEORGIA (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL (1793) pp471-472.]
The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative. [Lansing v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3, 7.]
NOTE-31 Action of Trespass filed October 7, 1998, page 1, lines 19-20
First Amended Action, filed June 7, 1999, page 11, lines 4-5.
NOTE-32 Court of Record: A judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it [Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689][Black's Law Dictionary, 4th Ed., 425, 426]
NOTE-33 Long v. Seabrook, 260 S.C. 562, 197 S.E.2d 659, 662; Black's Law Dictionary, Fifth Edition, p 899
NOTE-34 Plaintiff's Exhibit 15, page 4, lines 17-18; page 5, lines 17-19; and
Transcript, October 14, 1999, page 4, lines 23-25
NOTE-35 Transcript, October 14, 1999, page 5, lines 5-6
NOTE-36 CCP Section 1209 excerpt:
3. Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service;NOTE-37 SENECA, Medea.
...11. Disobedience by an inferior tribunal, magistrate, or officer, of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is removed from the jurisdiction of such inferior tribunal, magistrate, or officer.
NOTE-38 Plaintiff's Exhibit 17, page 4, lines 5-9
NOTE-39 Plaintiff's Exhibit17, page 4, lines 17-22
NOTE-40 Affidavit of William Jones, October 14, 1999, page 2, lines 1-2.
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