PREVAILING IN LEGAL AFFAIRS (as a trustee) HERE IS WHERE we shall get into legal action, the rare instance of public legal affairs, such as determining tax liability, defending a court action instituted against the trust (or trustee), and prosecuting a legal action on behalf of the trust (or trustee) as well as the possible necessity of commencing a private action pursuant to the Commercial Process. The reader must keep in mind that the chances of an action being taken against the trust or trustee who has properly limited his liability are slim to none. And if an action is taken against them anyway, generally, such cases don’t make it past the crucial phase of determining jurisdiction. When one examines the definition of jurisdiction, the fog begins to clear: Jurisdiction, n. 1. A government’s general power to exercise authority over all persons and things within its territory . 2. A court’s power to decide a case or issue a decree . 3. A geographic area within which political or judicial authority may be exercised . 4. A political or judicial subdivision within such an area . [Bold emphasis added.] There are two territorial jurisdictions created by the Constitution: the first is “the Territory,”162 i.e., that designated portion of the earth’s surface which is deemed the imperially extensive real estate holdings of the nation over which all power must be exercised within the strict letter of the Constitution; the second is the “other Property,”163 i.e., a territory unincorporated (not included) into the Union of states, over which all power may be exercised strictly according to the mere “spirit” of the Bill of Rights as interpreted by Congress. The latter is subject to Congress outside the strict letter of guarantees of the Constitution and Bill of Rights. In the former, the federal government can have no direct control over the people but by way of contract because it is entering onto every scene equally subject to the same laws as all persons; as opposed to the latter wherein the federal government can have full and direct control over people who are beneficiaries of this jurisdiction. As noted earlier, they may act “as they see fit [i.e., as trustees], for the benefit of public policy regulations (known as codes & statutes) of this jurisdiction.”164 Understanding that most courts currently in business in America are in fact, by the 1938 change in the operation of law, courts of limited jurisdiction,165 limited to cases involving subject-matter of the 14th Amendment public trust, it becomes clear that whether they are distinguished as federal or state courts, such is a distinction without a fundamental difference— all are inherently federal. In order to get at how such courts may obtain jurisdiction over an Express Trust or its trustee(s) in a legal action, the nature of jurisdiction should be briefly, but sufficiently examined. First, a court must have three essentials: jurisdiction to determine jurisdiction, jurisdiction over the subject-matter of the case (i.e., it must have the power/competence to decide the kind of controversy involved), and jurisdiction over the parties to the case (i.e., in personam or personal jurisdiction to compel the parties’ performance). If either one is lacking in any way, the court is without power to decide the case;166 and any order, decree or judgment, other than a dismissal, by such a court is void ab initio,167 having only the semblance or appearance of validity,168 and may be attacked directly or collaterally and vacated at any time.169 It is settled law that “a tribunal has jurisdiction to determine its own jurisdiction,”170 which brings us to the remaining two elements. Subject-matter jurisdiction is like the hub around which the wheel turns: without the hub, the wheel cannot turn credibly. It is comprised of two parts: the statutory or common-law authority of the court to hear the case and the appearance and testimony of a competent fact-witness (i.e., sufficiency of pleadings). It can never be waived; and it cannot be obtained by lapse of time, consent of the parties, or any event other than the sufficiency of pleadings of the party bringing the suit (i.e., the plaintiff). However, although it may have been established by the pleadings, it can still be lost due to, inter alia— Fraud upon the court;171 The judge’s failure to follow proper procedure;172 The unlawful activity or undisclosed conflict of interest of the judge (e.g., involvement in a scheme of bribery);173 The court exceeding its statutory authority;174 y Violation of due process;175 Improper representation of a party before the court, improper issuance of a summons, or defective service of process; Proper notice not being given to all parties by the movant; The court basing its order or judgment upon a void order or judgment; and y Violation of public policy.
Posted on: Sat, 29 Nov 2014 00:15:47 +0000
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