|How one person successfully challenged jurisdiction of a Nevada Traffic Judge by proving he didn't have a required bond on file|
NOTE: Names have been removed of the submitter to protect his identity
Well I had an interesting day. I showed up with several witnesses to face off with a judge that I expected to be a hard guy. He was a former FBI and the chief judge for all Clark County (Las Vegas) Justices of the Peace. (Judge Bixler) I was surprised to watch him deal with others. He was respectful and even caring unlike so many judges in the area I have seen before. He treated people as accused and not convicted and seemed genuinely concerned about their rights. He let several people out of jail because of failures by the prosecution to have a verified complaint prepared.
Then it was my turn. He started out saying that the paperwork I filed with the court (I did not file it with the court clerk but instead gave only a single copy to the bailiff to give directly to the judge. This was not an issue that the District Attorney had to respond to) was basically a Motion concerning lack of jurisdiction. He was right but it was not a motion. It was a Warning and Notice of lack of bond and a demand for a De Jure not a De Facto judge. He said he had not reviewed the entire document but that he had looked up the statute and that I was correct in that a bond was indeed a statutory requirement. Then with a big laugh and a smile he said, "And I don't have one." The courtroom went silent and the DA sitting next to me got very uncomfortable. You could feel the tension from her.
Then the judge continued to say that he thought the County had got a bond to cover every one. I shook my head no and he was watching me and said something like maybe not. He said he did not mind because he needed a vacation anyway. He was very funny.
I piped in and said that if I was asked by an officer for an insurance policy for my car and I gave them a life insurance policy ... The judge interrupted me and finished my sentence "then that would be the wrong insurance." I agreed and said that the statutory requirement was that the bond be made payable to the State of Nevada and if it was not then it was not a lawful bond.
He then informed me that I deserved a written response and that he would give me one next week. He kept saying he could use the vacation. He was really very funny.
He then said that I was scheduled for trial on April 19th. I asked how that was possible since I had not yet been arraigned. He looked surprised. I said, "How could I have been arraigned when I had not yet seen a judge." He said something like "good point". He then canceled that trial date and said that nothing would be done until after the written answer to my Warning and Notice.
He could not understand how Department 7 (the judge that had recused herself because (I believe) she was too stupid to handle a case that was about anything more than a traffic ticket where the people are just begging for a lessor change) could schedule a court date for department 5.
Then the DA tried to speak about Motions I had filed (I realized only after I filed them before the last judge recused herself from the case that it was pretty stupid to ask a De Facto judge to rule on a motion ) I just said, "Those motions have been withdrawn." She could not understand and tried to start arguing against them but then realized that I had withdrawn them and stopped. She looked so flustered that I almost laughed right out loud.
We then left together, <<NAME REDACTED>>, <<NAME REDACTED>> and two other students of the law and started down the hall. We were all laughing and talking about the case when I realized that Lance was not with us any more. I looked back and saw him hurrying toward me and he said a lawyer had seen what had happened and wanted to talk to me. So we all went back and he was very excited. He was amazed with what had occurred and said he wanted to represent me for free. I asked him if he knew my brother, <<NAME REDACTED>>. He said Yes and that I obviously did not need him as I had the best representation in Las Vegas. He told me he had voted for my brother when he ran for Supreme Court. He was shocked when I said that we (the group) had written the case and that Joel was not representing me. He was even more impressed then. Brad told him that if he ever needed research done that we were good at it. He was sure of it. He said he wanted to know more about the issue and wanted to follow the case. I said "Well then we will see you on April 6th." He asked if he could look at the document I gave the court and I handed him an extra copy. He took it like it was the Holy Grail. He could not believe I was giving him a copy. Then we all parted ways.
I would like to say that it was amazing what occurred. I have been working on this issue for almost a decade now and I finally got the chance to bring it to a court that had a decent man as a judge. I could feel that God's hand had once again been directing this and I give all praise and glory unto Him and take none for myself. Without His continual direction I could not have had this experience today. and in the words of Peter Pan, "Life will be a wonderful adventure." God has indeed allowed me to have a wonderfully exciting life. For that and for today's small victory I thank Him.
Here is the document I gave to the judge.
COMES NOW, <<NAME REDACTED>>, Defendant, following my duty to keep the government from falling into error does hereby give Warning and Notice that if the justice of the peace that has received this Warning and Notice proceeds to do ANY of the duties of his of office that he is acting without any authority to act as no bond, meeting the statutory requirements for a bond (NRS 282.040) is, to the best of <<NAME REDACTED>>’s knowledge (as of February 2005 AD), on file at the County Clerk’s office as required, (NRS 4.030). To enter upon any duty, concerning this defendant, while no lawful bond is on file, is to act under color of law and is a possible violation of State Secured Liberty interest, Acting without authority and under color of law and may be stripped of any and all judicial immunity. Such an action would be actionable under 42 U.S.C 1983. Do not proceed without a bond. The de facto standing of the Justices of the Peace in Clark County have hereby been challenged.
NRS 282.040 Form. All official bonds required by law of officers shall be:
1. In form joint and several.
2. Made payable to the State of Nevada.
3. In such penal sum and with such conditions as may be required by law.
SHALL VS. MAY
The courts have consistently held that the use of the word “shall” presumptively indicates mandatory, rather than directory statutory terms and, therefore, creates a duty. There is no discretion granted in the matter of properly and timely executing one’s bona fides required to hold public office. It is noted that when the word ‘shall’ is used in a command to a public official, it excludes the idea of discretion. See STATE ex rel. ATTORNEY GENERAL v. LAUGHTON, 19 Nev. 202, 8 P. 344 (1885).
The requirement that the Bond be made out to the State of Nevada is stated in NRS Chapter 282:
Note the specific word “ALL” in that statute. This means that it applies to a Blanket Bond as well as to bonds supplied by individual officers:
The Nevada Supreme Court was very clear about the importance of such bonds that are conditioned upon the faithful performance of his duties that SHALL be filed “before entering upon the duties of his office.” Interestingly enough the seminal case was way back only 20 years after Defendant’s beloved Nevada became a Republic and a State. It was in STATE ex rel. ATTORNEY GENERAL v. LAUGHTON, 19 Nev. 202, 8 P. 344 (1885) that the Supreme Court of Nevada made it very clear how important a proper bond was if an officer wanted to hold an office that required such a bond. They made it perfectly clear that the Legislature did not make such laws to be filed according to an office holders “caprice or whim” but were, indeed, completely mandatory. The Court gave a rather lengthy explanation that the defendant feels is important. Defendant has includes his comments upon this case and how they relate to this question today interspersed with the courts ruling:
There is a difference today in that there is nothing in the law that calls for the ouster of a Justice of the Peace for not filing a proper bond. The law only restrains the Justice from “entering upon the duties of his office.” He is still holds the office he just cannot enter into its duties.
Once again the Nevada’s Supreme Court’s reasoning is flawless.
And that is just what the Legislature did concerning Justices of the Peace.
The question must now be asked: Was the legislature acting a legislative farce when they wrote the law saying that a Justice of the Peace SHALL, before entering upon the duties of his office execute a bond payable to the State of Nevada? Was it allowing for Clark County’s “caprice or whim” when they required that the blanket bond be, “Made payable to the State of Nevada?” Are government officers required to follow the law or can they also act with “caprice and whim” with impunity?
Will this “the requirement of a bond is a mere directory provision” be the position of Clark County concerning the Blanket Bond? Will the judge claim he did not know the law required him to get a bond if the County failed to do so? Will the blanket bond requirement that it must be made payable to the State of Nevada be disregarded with impunity?
The same is as true today as it was in 1885 AD. Before entering upon the duties of the office the Judge or the County SHALL execute a bond made payable to the State of Nevada. Not payable to Clark County and not payable to whomever or no one specifically but specifically to the State of Nevada and NO ONE ELSE if he did not then obviously he could not enter upon the duties of the office. If the judge were to enter into the duties of his office without such a bond then the legislature would have been “acting a legislative farce” or the judge would be acting under color of law.
Amazing is it not how history is nearly repeating itself? This is almost exactly what has occurred with the office of Justice of the Peace and Sheriff here in Clark County.“ Can it be doubted that in such case the person named would have been obliged to file his bond and keep it good, and that in case of failure to do so there would have been a vacancy, which, under section 8 of article 5 of the constitution, it would have been the governor's duty to fill?”
Can it be doubted?! If the judge in this courtroom acts upon the duties of the office without a bond then it not only can be doubted but the law will be a legislative farce.
Unquestionably depended upon a compliance with the general law governing qualification?! Will “he have found his error” in this day and age?” If Defendant’s 40 years of experience with the government holds true defendant must doubt that any justice of the peace in Clark County “will find his error.” But since hope flames eternal in the human breast Defendant shall once again attempt to get the government to actually follow the law instead of making up some excuse or caveat to allow themselves to act with “caprice and whim” while subjecting accused Nevada Citizens, without the benefit of office, to a higher standard. I pray for the day when the State of Nevada returns to the time, like 1885 AD, when the Supreme Court held government official to a higher standard instead of trampling the Constitution like they did in GUINN v. The LEGISLATURE 119 Nev. 460, 76 P.3d 22. The Court of 1885 AD set a standard for government officials and what a bond requirement really means that Defendant has not found in this modern era, when it ruled:
Naturally for any Blanket Bond to be legitimate it would have to meet the requirements of an OFFICIAL BOND as established by the Nevada Legislature. Both of these statutes are found in chapter 282. The Blanket Bond is an official bond so the general provisions apply. These two statutes should be considered as a whole. See Supreme Court of Nevada, UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA v. NEVADANS FOR SOUND GOVERNMENT, 100 P.3d 179, (2004) Key Notes: “In construing a statute, a court should consider multiple legislative provisions as a whole.” Also find in the Key Notes: “The language of a statute should be given its plain meaning unless doing so violates the spirit of the act.”
Please note that the alleged blanket bond is not a bond but an insurance policy and states that the insured is Clark County and is not “made payable” to the State of Nevada. It is therefore obviously defective. This is important when we note that the Official Bonds are required by law to be, “Made payable to the State of Nevada.” (See Exhibit 1) The insurance policy is not made payable to anyone specific and is not a bond at all.
We must also note the difference between the requirement for the Bond for a Justice of the Peace and one for the District Attorney of Clark County where the Legislature made it clear that the District Attorney’s bond was to be made out to the “county” and not the State. No such exception to the official bond rule is found in that of Justices of the Peace.
Whereas the marked difference in the bond of the Justice of the Peace:
The question must be asked: Are Sovereign Citizens of Nevada to be held to a higher standard than public servants? Are people working as contractors in Nevada allowed to enter upon their duties without a bond or license to be considered de facto contractors? Are vehicle driver’s allowed to enter upon their duties without a license just de facto drivers? Are attorneys allowed to enter upon their duties that have not passed the bar just de facto attorneys? Would a street corner drug dealer actually be a de facto pharmacist if held to same standard as so many government officials today. How can a judge be allowed to have de facto standing even after it has been pointed out that he is not de jure and just a de facto judge? How can man claiming to be a justice sit in judgment on others until after he becomes a de jure judge? How can the servant be held to a lower standard than the Sovereign Citizen? To enter upon the gutis of the office without a bond is to violate the Equal Protections clauses of our constitutions.
The defendant and members of his family have been trying to get the County and the State of Nevada to take care of this OBVIOUS flaw in this bond for over eight years. (See Exhibits 2 and 3) Defendant has contacted State and County officials including the Sheriffs office, the District Attorney’s office, the Legislative Counsel Bureau, Senators Sandra Tiffany and Bob Beers and other Senators and Assemblymen. For years the County did not even have the alleged blanket bond on file at the County Clerks office and through Defendant’s persistence they finally placed the defective insurance policy in the County Clerk office even though it was not properly filed. Will the defendant be treated by the County and State with such leniency as they treat themselves?
It is obvious that Bonds can be executed by Clark County elected officials. (See Exhibit 4)
President Nixon was pardoned. Kathy Augustine was let off with a small penalty. It has been reported that Erin Kenny was allowed to keep at least part of the bribe money from a strip club owner. And these were government officials that actually got caught. Equality under the law has become a joke with two classes of people.
The de facto officer doctrine dates back to 1431. The essence of the de facto officer doctrine is that one who claims to be a public officer while in possession of an office and ostensibly exercising its function lawfully and with the acquiescence of the public is a de facto officer whose lawful acts, so far as the rights of others are concerned, are, if done within the scope and by the apparent authority of the office, as valid and as binding as if the officer were legally qualified for the office and in full possession of it. Ancient though the doctrine may be, it nevertheless serves the needs of contemporary society. Because the statutes do not define de facto officers, the common law definition applies.
When a special judge is duly elected, qualifies, and takes possession of the office according to law, he becomes judge de facto, though his official oath is not filed as required by law; and the proceedings of the court, if unchallenged during his incumbency, cannot afterwards be questioned collaterally; 111 Mo. 542. See 65 Vt. 399; 49 Ark. 439; 96 Pa. 344; 86 Ill. 283.
Reference is pertinently made to the general rule that where the law creating a public office is declared void, the acts of an officer continuing to function thereunder will, until he is legally succeeded, be upheld as the acts of a de facto officer. There cannot be a de facto officer unless there is a de jure office. The law in this respect is rather succinctly stated in a supreme court of the United States opinion:
Where a public official is only acting under color of authority, his exercise of power is merely de facto rather than de jure. The Legislature’s intent, therefore, could not be more clearly stated. Any official who is required to execute a bond to the State of Nevada and does not is simply unqualified and unauthorized to act unless and until he does the same.
However the de facto doctrine has come under attack See SILVER, v. UNITED STATES POSTAL SERVICE, 951 F.2d 1033, Ninth Circuit (1991).
One thing is certain. The de facto officer doctrine ONLY applies, “if unchallenged during his incumbency.” And “First, the plaintiff must bring his action at or around the time that the challenged action is taken.” Andrade v. Lauer, supra. The de facto standing of the Justices of the Peace in Clark County have hereby been challenged.
The following statement by Justice Brandies is a statement that has great personal meaning to the defendant and is very applicable to this motion.
The only relief that can be granted is for the Justice of the Peace in this matter to admit that the County has failed to get a proper Blanket Bond and that he cannot, therefore, enter into the duties of his office until a proper bond is filed with the County Clerk’s office.
Dated: March 31st, in the year of our Lord, 2005 and in the year since our Independence of the United States of America 229.
Respectfully given and signed by,
<<NAME REDACTED>> without prejudice