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admin — Thu, 30 May 2013 17:06:03 +0000

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Below is an article about your constitutional right to travel. Enjoy!

U.S. COURT DECISIONS CONFIRM “DRIVING A MOTOR VEHICLE” IS A
CITIZENS RIGHT AND NOT A GOVERNMENT GRANTED PRIVILEGE.
By Jack McLamb (from Aid & Abet Newsletter)

For many years Professionals within the criminal justice System have acted upon the belief that traveling by motor vehicle upon the roadway was a privilege that was gained by a citizen only after approval by their respective state government in the form of the issuance of a permit or license to that Particular individual. Legislators, police officers and court officials are becoming aware that there are now court decisions that prove the fallacy of the legal opinion that” driving is a privilege and therefore requires government approval, i.e. a license”. Some of these cases are:

Case # 1 – “Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience. - Chicago Motor Coach v Chicago 169 NE 22
(“Regulated” here means traffic safety enforcement, stop lights, signs, etc. NOT a privilege that requires permission i.e.- licensing, mandatory insurance, vehicle registration, etc.)

Case # 2 – “The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common right which he has under the right to life, liberty, and the pursuit of happiness.”- Thompson v Smith 154 SE 579.

It could not be stated more conclusively that Citizens of the states have a right to travel, without approval or restriction (license), and that this right is protected under the U.S. Constitution. Here are other court decisions that expound the same facts:

Case # 3 – “The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the 5th Amendment.” - Kent v Dulles, 357 U.S. 116, 125.

Case # 4 – “Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal Iiberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the l4th Amendment and by other provisions of the Constitution.” – Schactman v Dulles, 96 App D.C. 287, 293.

FUNDAMENTAL RIGHT

As hard as it is for those of us in Law enforcement to believe, there is no room for speculation in these court decisions. The American citizen does indeed have the inalienable right to use the roadways unrestricted in any manner as long as they are not damaging or violating property or rights of another.

Government, in requiring the people to file for “drivers licenses, vehicle registrations, mandatory insurance, and demanding they stop for vehicle inspections, DUI/DWI roadblocks etc. without question, are “restricting”, and therefore violating, the Peoples common law right to travel.

Is this a new legal interpretation on this subject of the right to travel? Apparently not. The American Citizens and Lawmen Association in conjunction with The U.S. Federal Law Research Center are presently involved in studies in several areas involving questions on constitutional law. One of the many areas under review is the area of “Citizens right to travel.” In an interview a spokesmen stated: “Upon researching this subject over many months, substantial case law has presented itself that completely substantiates the position that the “right to travel unrestricted upon the nations highways” is and has always been a fundamental right of every Citizen.”

This means that the “beliefs and opinions” our state legislators, the courts, and those of as involved in the law enforcement profession have acted upon for years have been in error. Researchers armed with actual facts state that U.S. case law is overwhelming in determining that – to restrict, in any fashion, the movement of the individual American in the free exercise of their right to travel upon the roadways, (excluding “commerce” which the state Legislatures are correct in regulating), is a serious breach of those freedoms secured by the U.S. Constitution, and most state Constitutions, i.e – it is Unlawful.

THE REVELATION THAT THE AMERICAN CITIZEN HAS ALWAYS HAD THE INALIENABLE RIGHT TO TRAVEL RAISES PROFOUND QUESTIONS TO THOSE WHO ARE INVOLVED IN MAKING AND ENFORCING STATE LAWS.

The first of such questions may very well be – If the States have been enforcing laws that are unconstitutional on their face, it would seem that there must be some way that a state can legally put restrictions, such as – licensing requirements, mandatory insurance, vehicle registration, vehicle inspections, D.W.I. roadblocks, to name just a few, on a Citizens constitutionally protected right. Is that not so?

For the answer to this question let us Iook, once again, to the U.S. courts for a determination on this very issue.

The case of Hertado v. California, 110 U.S. 516. states very plainly: “The State cannot diminish rights of the people.”

“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 U.S. 22, 24.

Would we not say that these judicial decisions are straight to the point – that there is no lawful method for government to put restrictions or Iimitations on rights belonging to the people?

Other cases are even more straight forward:

“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
- Miranda v. Arizona, 384 U.S. 436, 491.

“The claim and exercise of a constitutional right cannot be converted into a crime.· – Miller v. U.S., 230 F 2d 486, 489.

“There can be no sanction or penalty imposed upon one because of this exercise of Constitutional rights.”- Sherar v. Cullen, 481 F. 945. ( There is no question that a citation/ticket issued by a police officer, for no drivers license, no current vehicle registration, no vehicle insurance etc. which carries a fine or jail time, is a penalty or sanction, and is indeed “converting a Right into a crime”.)

We could go on, quoting court decision after court decision, however, In addition, the Constitution itself answers our question- “Can a government legally put restrictions on the rights of the American people at anytime, for any reason”? (Such as in this particular case – when the government believes it to be for the safety and welfare of the people).

The answer is found in ARTICLE SIX of the U.S. Constitution:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;..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 not withstanding”. (This tells us that the U.S. Constitution is to be upheld over any state, county, or city Iaws that are in opposition to it.)

In the same Article it goes on to say just who it is within our governments that is bound by this Supreme Law:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;”. – ART. 6 U.S. CONST.

We know that Police officers, are a part of the Executive branch. We are “Executive Officers”.

Article 6 above, is called the SUPREMACY CLAUSE, and it clearly states that, under every circumstance, the above listed officials in these United States must hold this documents tenets supreme over any other laws, regulations, or orders. Every U.S. Police officer knows that they have sworn a oath to the people of our nation that we will not only protect their lives and property, but, that we will uphold, and protect their freedoms and rights under the Supreme laws of this nation, – the U. S. Constitution.

In this regard then, we must agree that those within government that restrict a Citizens rights, (such as restricting the peoples right to travel,) are acting in violation of his or her oath of office and are actually committing a crime against such Citizens. Here’s an interesting question. Is ignorance of these laws an excuse for such acts by officials?

If we are to follow the “letter of the law (as we are sworn to do), this places officials that involve themselves in such unlawful acts in a unfavorable legal situation. For it is a felony and federal crime to violate, or deprive citizens of their Constitutionally protected rights.

Our system of law dictates the fact that there are only two ways to legally remove a right belonging to the people. These are – #1 – by lawfully amending the constitution, or #2 – by a person knowingly waiving a particular right.

Some of the confusion in our present system has arisen because many millions of people have waived their right to travel “unrestricted” upon the roadways of the states and opted into the jurisdiction of the state for various reasons. Those who have knowingly given up these rights are now legally regulated by state law, the proper courts, and “sworn, constitutionally empowered officers-of-the-law,” and must acquire proper permits, registrations, insurance, etc.

There are basically two groups of people in this category:

#1 – Any citizen that involves themselves in “commerce,” (business for private gain), upon the highways of the state.

Here is what the courts have said about this:

“…For while a citizen has the right to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways, either in whole or in part, as a place for private gain. For the latter purpose no person has a vested right to use the highways of the state, but is a privilege or license which the legislature may grant or withhold at its discretion…” – State v Johnson, 243 P. 1073, 1078.

Other U.S. court cases that confirm and point out the difference between the “right” of the citizen to travel and a government “privilege” are – Barney v Board of Railroad Commissioners; State v City of Spokane, 186 P. 864.; Ex Parte Dickey (Dickey v Davis), 85 S.E. 781.; Teche Lines v Danforth, 12 So.2d 784.

There are numerous other court decisions that spell out the JURISDICTION issue In these two distinctly different activities. However, because of space restrictions we will leave it up to officers to research it further for themselves. (See last page for additional references).

#2 – The second group of citizens that are legally under the jurisdiction of the state is the individual citizen who has voluntarily and knowingly waived their right to travel “unregulated and unrestricted” by requesting placement under such jurisdiction through the acquisition of a state – drivers license, vehicle registration, mandatory insurance, etc. (In other words “by contract only”.)

We should remember what makes this “legal,” and not a violation of the individuals common law right to travel “unrestricted” is that they knowingly volunteer, freely, by contract, to waive their right. If they were forced, coerced or unknowingly placed under the states powers, the courts have said it is a clear violation of their rights.

This in itself raises a very interesting question. What percentage of the people in each state have filed, and received, licenses, registrations, insurance etc. after erroneously being advised by their government that it was mandatory?

Many of our courts, attorneys and police officials are just becoming informed about this important issue and the difference between “Privileges vs. Rights”. We can assume that the majority of those Americans carrying state licenses, vehicle registrations etc., have no knowledge of the rights they waived in obeying laws such as these that the U.S. Constitution clearly states are unlawful, i.e. “laws of no effect”. In other words – “LAWS THAT ARE NOT LAWS AT ALL.“

OUR SWORN DUTY

An area of serious consideration for every police officer, is to understand that the most important law in our land he has taken an oath to protect, defend, AND ENFORCE, is not state laws, nor city or county ordinances, but, that law that supersede all other laws in our nation, – the U.S. Constitution. If laws in a particular police officer’s state, or local community are in conflict with the SUPREME LAW of our nation, there Is no question that the officer’s duty is to “uphold the U.S. Constitution.”

What does this mean to the “patrol officer” who will be the only sworn “Executive Officer” on the scene, when knowledgeable Citizens raise serious objections over possession of insurance, drivers licenses and other restrictions? It definitely means these officers will be faced with a hard decision. (Most certainly if that decision effects state, city or county revenues, such as the issuing of citations do.)

Example: If a state legislator, judge or a superior tells a police officer to proceed and enforce a contradictory, (illegal), state law rather than the Supreme Law of this country, what is that “sworn officer” to do? Although we may not want to hear it, there is but one right answer, – “the officer is duty bound to uphold his oath of office” and obey the highest laws of the nation. THIS IS OUR SWORN DUTY AND IT’S THE LAW!

Such a strong honest stand taken by a police officer, upholding his or her oath of office, takes moral strength of character. It will, without question, “SEPARATE THE MEN FROM THE BOYS.” Such honest and straight forward decisions on behalf of a government official have often caused pressure to be applied to force such officers to set aside, or compromise their morals or convictions.

As a solace for those brave souls in uniform that will stand up for law and justice, even when it’s unpopular, or uncomfortable to do so…let me say this. In any legal stand-off over a sworn official “violating” or “upholding” their oath of office, those that would side with the “violation” should inevitable lose.

Our Founding Fathers assured us, on many occasions, the following: Defending our freedoms in the face of people that would for “expedients sake,” or behind the guise, “for the safety and welfare of the masses,” ignore peoples rights, would forever demand sacrifice and vigilance from those that desired to remain free. That sounds a little like – “Freedom is not free!”

Every police officer should keep the following court ruling, that was covered earlier, in mind before issuing citations in regard to “mandatory licensing, registration and insurance” – verses – “the right of the people to travel unencumbered”:

“THE CLAlM AND EXERCISE OF A CONSTITUTIONAL RlGHT CANNOT BE CONVERTED INTO A CRIME.” – Miller v U.S., 230 F 2d 486. 489.

And as we have seen, “traveling freely,” going about ones daily activities, is the exercise of a most basic right.

Challenge the Validity of the Law by Demanding Certification.

admin — Wed, 29 May 2013 20:37:40 +0000

Intervention

According to Legal Research, “Every state probably has somewhere in its codes the process to have state law certified as constitutional”. See references below for Federal, Florida, California and Oregon laws on the subject of Intervention and such challenges.

There is a mechanism in the law that allows you to make a constitutional challenge through the back door when involved in the courts. I don’t believe you can ever successfully argue in the administrative process, as it is a traverse into a (private law) trap by fraud in the inducement. The powers that be made a very big mistake when they allowed, even encouraged the belief that the constitution is alive and well. The attorney general of every state can be subpoenaed into a courtroom to testify to the constitutionality any act or omission you are charged with violating. Every codified law must also be certified as constitutional by the supreme court of the state before it can be implemented. (Implementing regulations displayed within [pairs of brackets] make it clear the said regulations have been omitted and thereby, the act or statute cannot be unilaterally imposed.) Employing this understanding defeats every act or statute presented for acceptance. Generally all cases will be dismissed (or abandoned) rather than have the fraud exposed. This is particularly true when addressing bonds being issued in the defendants name by the clerk of the court that go to extortion of the defendants credit for the purpose to monetize the said bonds.

THE REMEDY:

‘But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are:

(1) that its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and

(2) that while it exists it must necessarily be [229 U.S.416, 429] obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered, also, by civil authority, supported more or less directly by military force.’

– Thorington v. Smith, 8 Wall. 1, 9, 19 L. ed. 361, 363.

I spent all day yesterday researching the above case. I have come to the conclusion that we are indeed under the jurisdiction of a military authority, administered by civil authority, and the courts run America. It goes all the way back to before the Revolution. International treaties, codified into law, are superior to domestic law, (as stated by the Supreme Court) starting at the time of the Revolution. (No transfer of American soil from the Crown) The colonies were British (Crown) corporations. Washington D.C. became the Mother Corp. and the colonies became her Inc’s. Peace was never declared after the civil war, and we are still functioning under the war powers. This explains why we don’t win in the courts. The national Constitution has been suspended. The states, as Inc’s, also had their Constitutions suspended. We lost our law, which is supposed to be certified as constitutional before it can be implemented. NO REMEDY. This explains the Rule of Necessity. You cannot claim to be a citizen of a State or the U.S. because neither exist as de jure governments, they are governments de facto.

However, since our de facto governments won’t tell us this, and we are still functioning under the belief that the constitutions are de jure, I still think we can challenge under the “absence of law is the remedy” theory.Just exactly what is this theory? As I said before, all law has to be certified as constitutional by the state supreme court before it can be implemented.. When charged with violating a law, one should subpoena the certification of the act by the state supreme court. One should also subpoena the Attorney General of the state to testify to the constitutionality of the act.

Because the law will not be certified as constitutional, and the state Attorney will not testify to the constitutionality of the act, nothing remains but for the court to dismiss your case. I’ve used this technique in a firearms violation case in which the defendant, if found guilty, would have been given 40 years in jail. Instead, on the day of his trial, he was called to the bench and told his case has been dismissed.

I believe that all judges, once they reach the appellate level are aware of the above facts. The more arrogant the judge, the more he knows about the government being de facto. The law schools are private, so the lawyers are educated to work for the de facto system, by making sure that the will of the state is imposed upon us. There was a deal struck that, if any person who doesn’t have a lawyer to bring a case before the courts, and if this person proves the fraud, and speaks the truth about the fraud, the courts are compelled to not allow the case to be cited or published anywhere. The courts cannot afford to have the case freely available in the public archives. This would be evidence of the fraud. That is why you can’t hire an attorney. An attorney is compelled to uphold the fraud.

As I said before, all law has to be certified as constitutional by the state supreme court before it can be implemented. What is the source of this proposition? I think the war powers condition is cumulative since the civil war. I don’t think WWII ever ended in the States. The judiciary act of 1948 was a wartime act. Peace did not come with Germany and Japan until after Korea was started which is still going on. UN was founded and entered into during WWII. The NC statutes read as if WWII war powers are still in effect. In a civil case, would this not also apply to subpoena the certification of constitutionality?

All your questions and statements are irrelevant. I can see that it is difficult for you to accept so simple a truth. If you know the Constitution for the United States and the Constitutions for all the several states have been suspended, you should know you have no constitutional protection in any court in any district in this country. If we are supposed to have constitutional protections and they ceased to exist, we can only use the fact they ceased to exist to defend ourselves. It doesn’t matter if the court is using admiralty, law merchant, equity, or administrative. The government has never come out and made it a statement of fact that we are a de facto nation, with de facto courts, with judges sitting under the rule of necessity, and that we have no remedy in the courts, have they?Three things are needed to be classified as a nation under international law:

1. de jure money

2. de jure law

3. a de jure army

We have none of these. We are a nation de facto, functioning under martial law with a de facto civil system enforced through police power. Is this too simple for you to understand? Your only hope for remedy is to bring this fact into the courtroom and have the court either confirm your claim or dismiss. They will not confirm the facts, for to do so would cause the de facto system to fall apart. Their only option is to dismiss…

Ladies and Gentlemen: ABSENCE OF LAW IS THE REMEDY.

How many times have we been told by a Judge that the Constitution does not exist in his courtroom? He was telling us something very important but we weren’t listening… You have to empty your mind and look at “no law = no remedy.” If there is no remedy there can be no charges of omission or violating a law crafted by a de facto legislature. It is well settled that there MUST be a remedy for every violation of law. YOU CAN’T find one! The reason is, because no remedy exists. BUT…..how often have you challenged the law you are accused of violating as being certified as constitutional by the supreme court of your state? I bet you have never done this. How many times have you subpoenaed the Attorney General of your state to testify to the constitutionality of the act you are charged with violating? NEVER?

ABSENCE OF REMEDY:

As a researcher for many years, it becomes apparent “absence of law is the remedy.” No law, no violation or crime. The case below says “without the remedy the contract may, indeed, in the sense of the law, be said not to exist.” I think this is important. In tort law, a contract can’t necessarily stipulate to a remedy other than jurisdiction and who will pay attorney fees.

Where is the law?

Fifty years ago this Court pointed out the essential relationship between rights and remedies.

“Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution against invasion. The obligation of a contract ‘is the law which binds the parties to perform their agreement.’”

Von Hoffman v. City of Quincy, 4 Wall. 535, 552.

RED CROSS LINE vs. ATLANTIC FRUIT COMPANY. No. 112. SUPREME COURT OF THE UNITED STATES 264 U.S. 109, 68 L. Ed. 582, 44 S. Ct. 274 February 18, 1924 Decided

—————————- REFERENCES —————————

28 USC> PART VI > CHAPTER 161 > § 2403. Intervention by United States or a State; constitutional question

(a) In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

(b) In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

Federal Rules of Civil Procedure

IV. PARTIES > Rule 24. Intervention

(a) Intervention of Right.

Upon timely application anyone shall be pemitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

(b) Permissive Intervention.

Upon timely application anyone may be permitted to intervene in an action:

(1) when a statute of the United States confers a conditional right to intervene; or

(2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

(c) Procedure.

A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefore and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C.,§ 2403. When the constitutionality of any statute of a State affecting the public interest is drawn in question in any action in which that State or any agency, officer, or employee thereof is not a party, the court shall notify the attorney general of the State as provided in Title 28, U.S.C. § 2403. A party challenging the constitutionality of legislation should call the attention of the court to its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise timely asserted.

California Rules of Civil Procedure- Ca.R.C.P.

Rule 29.5. Questions of state law certified by federal appellate courts and other courts

(a) [Requirements for certified questions] The California Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth, provided that:

(1) the certifying court requests the answer

(2) the questions may be determinative of a cause pending in the certifying court, and

(3) the decisions of the California appellate courts provide no controlling precedent concerning the certified question.

(b) [Contents of certification request] Only a court specified in subdivision (a) may certify question. The request shall be by an order that sets forth:

(1) the caption of the case, including names and addresses of counsel and of parties appearing pro se and a designation of he party to be deemed the petitioner on the certified question if the request to answer is granted;

(2) the questions of law to be answered;

(3) a statement (by stipulation of the parties subject to approval by the certifying court, or by the court itself) ofÂ all facts relevant to the certified question, and showing fully the nature of the controversy and the circumstances in which the question arose;

(4) statements

(i) demonstrating that the question certified is contested and that there is no controlling precedent in the case law of the California appellate courts,

(ii) explaining how an authoritative answer to the certified question may be determinative of a cause pending in the certifying court; and

(iii) indicating that the answer provided by the California Supreme Court will be followed by the certifying court; and

(5) such additional information as the certifying court may deem relevant and useful.

(c) [Briefs and other materials] The certifying court shall furnish legible copies of all relevant briefs to the California Supreme Court with the request for an answer to the certified question. The California Supreme Court may request that the certifying court furnish additional material, such as exhibits or all or a portion of the record that, in the opinion of the court, may be useful in answering the certified question.

(d) [Request procedure] The judge or justice presiding at the certification hearing (if any) or the presiding judge or justice of the court or panel certifying the question shall sign the request for an answer to the certified question, and the clerk of the certifying court shall forward it under its official seal to the California Supreme Court.

(e) [Factors that may be considered] The California Supreme Court shall have discretion to accept or deny the request for an answer to the certified question of law. In exercising its discretion the court may consider:

(1) factors that it ordinarily considers in deciding whether to grant review of a decision of a California Court of Appeal or to issue an alternative writ or other order in an original matter;

(2) comity, and whether answering the question will facilitate the certifying court’s functioning or help terminate existing litigation;

(3) the extent to which an answer would turn on questions of fact; and

(4) any other factors the court may deem appropriate.

(f) [Clarification of question] At any time, the California Supreme Court may restate the certified question or may ask the certifying court to restate or clarify the certified question.

(g) [Order denying or accepting request] The California Supreme Court shall issue an order accepting or denying the request for an answer to the certified question. If the court accepts the request, it shall announce that determination in the manner that it announces the acceptance of cases for review, and thereafter:

(1) the California Rules of Court for briefing, argument, and conduct of appeals shall govern further proceedings on any certified question unless the court or the Judicial Council otherwise provides;

(2) fees and costs shall be the same as in appeals docketed before the California Supreme Court and in civil matters, shall be equally divided between or among the parties unless theÂ certifying court in its request for an answer to the certified question provides for a different allocation, or the California Supreme Court provides otherwise; and

(3) the California Supreme Court may in its discretion assign a certified question such priority on its docket as considerations of fairness, exigency, and comity may require.

(h) [Notice to California Attorney General] If the certified question concerns the proper interpretation of a California statute, in litigation in which the State of California or an officer, agency, or employee of the state is not a party, the clerk of the California Supreme Court shall notify the California Attorney General and the California Supreme Court may permit him or her to file briefs on the issue.

(i) [Transmission of opinion] The clerk shall forward the California Supreme Court’s written opinion stating the law governing the certified question to the certifying court, under the seal of the Supreme Court, and also shall forward copies of the opinion to counsel of record.

(j) [Publication and precedential effect] The California Supreme Court’s answer to a certified question shall have the same authoritative and precedential force as any other decision of the court, and shall be published in the official Reports.

(k) [Procedural rules] The California Supreme Court or the Judicial Council may adopt procedures governing practice under this rule.

(Adopted, eff. Jan. 1, 1998.) [Amended December 27, 1946, effective March 19, 1948; December 29, 1948, effective October 20, 1949; January 21, 1963, effective July 1, 1963; February 28, 1966, effective July 1, 1966; March 2, 1987, effective August 1, 1987; April 30, 1991, effective December 1, 1991.]

California Codes

California Code of Civil Procedure

CODE OF CIVIL PROCEDURE SECTION 387-388

INTERVENTION 387.

(a) Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared in the same manner as upon the commencement of an original action, and upon the attorneys of the parties who have appeared, or upon

the party if he has appeared without an attorney, in the manner provided for service of summons or in the manner provided by Chapter 5 (commencing with Section 1010) Title 14 of Part2. A party served with a complaint in intervention may within 30 days after service move, demur, or otherwise plead to the complaint in the same manner as to an original complaint.

(b) If any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property to transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.

388.

In an action brought by a party for relief of any nature other than solely for money damages where a pleading alleges facts or issues concerning alleged pollution or adverse environmental effects which could affect the public generally, the party filing the pleading shall furnish a copy to the Attorney General of the State of California. The copy shall be furnished by the party filing the pleading within 10 days after filing.

Oregon Certification of Questions of Law

ORS Chapter 28 – Oregon State Legislature

28.160 Short title. This chapter may be cited as the “Uniform Declaratory Judgments Act.” CERTIFICATION OF QUESTIONS OF LAW. 28.200Supreme Court authorized …

http://www.leg.state.or.us/ors/028.html – Cached -Similar

Chapter 28 — Declaratory Judgments; Certification of Questions of Law

2009 EDITION

DECLARATORY JUDGMENTS; QUESTIONS OF LAW

SPECIAL ACTIONS AND PROCEEDINGS

DECLARATORY JUDGMENTS

28.010　　　　　　 Power of courts; form of declaration

28.020　　　　　　 Declarations as to writings and laws

28.030　　　　　　 Construction of contract before or after breach

28.040　　　　　　 Declaratory judgments on trusts or estates

28.050　　　　　　 Enumeration not exclusive

28.060　　　　　　 Discretion of court to refuse judgment

28.070　　　　　　 Appeal or review

28.080　　　　　　 Supplemental relief

28.090　　　　　　 Trial of issues of fact

28.100　　　　　　 Costs

28.110　　　　　　 Parties; service on Attorney General when constitutional question involved

28.120　　　　　　 Construction and administration

28.130　　　　　　 “Person” defined

28.140　　　　　　 Provisions severable

28.150　　　　　　 Uniformity of interpretation

28.160　　　　　　 Short title

CERTIFICATION OF QUESTIONS OF LAW

28.200　　　　　　 Supreme Court authorized to answer questionsof law certified by other courts

28.205　　　　　　 Procedure to invoke ORS 28.200 to 28.255

28.210　　　　　　 Certification order

28.215　　　　　　 Form of certification order; submission of record

28.220　　　　　　 Fees; apportionment between parties

28.225　　　　　　 Procedure in certification matters

28.230　　　　　　 Opinion on certified question

28.235　　　　　　 Certification to another state

28.240　　　　　　 Procedure for certification to another state

28.245　　　　　　 Severability

28.250　　　　　　 Construction

28.255　　　　　　 Short title

DECLARATORY JUDGMENTS

28.010 Power of courts; form of declaration. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a judgment. [Amended by 2003 c.576 §302]

28.020 Declarations as to writings and laws. Any person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such instrument, constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.

28.030 Construction of contract before or after breach. A contract may be construed either before or after there has been a breach thereof.

28.040 Declaratory judgments on trusts or estates. Any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, ward or insolvent, may have a declaration of rights or legal relations in respect thereto:

　　　　　 (1) To ascertain any class of creditors, devisees, legatees,heirs, next of kin or other; or

　　　　　 (2) To direct the executors, administrators, trustees, guardians or conservators to do or abstain from doing any particular act in their fiduciary capacity; or

(3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings. [Amended by 1961 c.344 §101]

28.050 Enumeration not exclusive. The enumeration in ORS 28.010 to 28.040 does not limit or restrict the exercise of the general powers conferred in ORS 28.010, in any proceedings where declaratory relief is sought, in which a judgment will terminate the controversy or remove an uncertainty. [Amended by 2003 c.576 §303]

28.060 Discretion of court to refuse judgment. The court may refuse to render or enter a declaratory judgment where such judgment, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. [Amended by 2003 c.576 §304]

28.070 Appeal or review. All orders and judgments under this chapter may be appealed from or reviewed as other orders and judgments. [Amended by 2003 c.576 §305]

28.080 Supplemental relief.

Further relief based on a declaratory judgment may be granted whenever necessary or proper. The application thereof shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment to show cause why further relief should not be granted forthwith. [Amended by 2003 c.576 §306]

28.090 Trial of issues of fact. When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other actions at law or suits in equity in the court in which the proceeding is pending.

28.100 Costs. In any proceeding under this chapter the court may make such award of costs as may seem equitable and just.

28.110 Parties; service on Attorney General when constitutional question involved. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal charter, ordinance or franchise, the municipality affected shall be made a party, and shall be entitled to be heard, and if the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.

28.120 Construction and administration.This chapter is declared to be remedial. The purpose of this chapter is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered. [Amended by 2005 c.22 §18]

28.130 “Person” defined.The word “person,” wherever used in this chapter, shall be construed to mean any person, partnership, joint stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever.

28.140 Provisions severable. The several sections and provisions of this chapter, except ORS 28.010 and 28.020, are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the chapter invalid or inoperative.

28.150 Uniformity of interpretation. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments. [Amended by 2003 c.576 §307]

28.160 Short title. This chapter may be cited as the “Uniform Declaratory Judgments Act.”

CERTIFICATION OF QUESTIONS OF LAW

28.200 Supreme Court authorized to answer questions of law certified by other courts.

The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, a panel of the Bankruptcy Appellate Panel Service or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceedings before it questions of law of “this state“ which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court and the intermediate appellate courts of this state. [1983 c.103 §1; 1995 c.197 §1]

Note: 28.200 to 28.255 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 28 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

28.205 Procedure to invoke ORS 28.200 to 28.255.

ORS 28.200 to 28.255 may be invoked by an order of any of the courts referred to in ORS 28.200 upon the court’s own motion or upon the motion of any party to the cause. [1983 c.103 §2]