WHEN YOU CHALLENGE SUBJECT JURISDICTION, IT IS TO BE SHOWN AND PROVED BEFORE COURT PROCEEDS. PERIOD, BUT NOT IF YOU DON'T MAKE IT AN ISSUE, YOU LOSE. YOU MUST MOVE YOUR COURT.
If you are arguing about the strawman, all capital letters, or anything else, citizenship, etc – you are missing they key to it all…Just make the accuser prove it exists.
- TABLE OF AUTHORITY ON SUBJECT MATTER JURISDICTION
In a court of limited jurisdiction, whenever a party denies that the court has subject-matter jurisdiction, it becomes the duty and the burden of the party claiming that the court has subject matter jurisdiction to provide evidence from the record of the case that the court holds subject-matter jurisdiction. Bindell v City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991) (“the burden of proving jurisdiction rests upon the party asserting it.”).
Until the plaintiff submits uncontroversial evidence of subject-matter jurisdiction to the court that the court has subject-matter jurisdiction, the court is proceeding without subject-matter jurisdiction. Loos v American Energy Savers, Inc., 168 Ill.App.3d 558, 522 N.E.2d 841(1988)(“Where jurisdiction is contested, the burden of establishing it rests upon the plaintiff.”).
The law places the duty and burden of subject-matter jurisdiction upon the plaintiff. Should the court attempt to place the burden upon the defendant, the court has acted against the law, violates the defendant's due process rights, and the judge under court decisions has immediately lost subject-matter jurisdiction. In a court of limited jurisdiction, the court must proceed exactly according to the law or statute under which it operates. Flake v Pretzel, 381 Ill. 498, 46 N.E.2d 375 (1943) (“the actions, being statutory proceedings, … were void for want of power to make them.”) (“The judgments were based on orders which were void because the court exceeded its jurisdiction in entering them. Where a court, after acquiring jurisdiction of a subject matter, as here, transcends the limits of the jurisdiction conferred, its judgment is void.”); Armstrong v Obucino, 300 Ill. 140, 143, 133 N.E. 58 (1921) (“The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree, however erroneous, cannot be collaterally assailed, is only correct when the court proceeds according to the established modes governing the class to which the case belongs and does not transcend in the extent and character of its judgment or decree the law or statute which is applicable to it.” In Interest of M.V., 288 Ill.App.3d 300, 681 N.E.2d 532 (1st Dist. 1997) (“Where a court's power to act is controlled by statute, the court is governed by the rules of limited jurisdiction, and courts exercising jurisdiction over such matters must proceed within the strictures of the statute.”); In re Marriage of Milliken, 199 Ill.App.3d 813, 557 N.E.2d 591 (1st Dist. 1990) (“The jurisdiction of a court in a dissolution proceeding is limited to that conferred by statute.”); Vulcan Materials Co. v. Bee Const. Co., Inc., 101 Ill.App.3d 30, 40, 427 N.E.2d 797 (1st Dist. 1981) (“Though a court be one of general jurisdiction, when its power to act on a particular matter is controlled by statute, the court is governed by the rules of limited jurisdiction.”).
“There is no discretion to ignore that lack of jurisdiction.” See Joyce v. US, 474 F2d 215. “A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullity and its judgment therein without effect either on person or property.” See Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.
“Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio.” See In Re Application of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846.
“Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term.” See Dillon v. Dillon, 187 P 27.
“A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance.” See Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409.
“A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction.” See Wuest v. Wuest, 127 P2d 934, 937.
“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” See Merritt v. Hunter, C.A. Kansas 170 F2d 739.
“the fact that the petitioner was released on a promise to appear before a magistrate for an arraignment, that fact is circumstance to be considered in determining whether in first instance there was a probable cause for the arrest.” See Monroe v. Papa, DC, Ill. 1963, 221 F Supp 685.
“Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter.” See McNutt v. GMAC, 298 US 178. The origins of this doctrine of law may be found in Maxfield's Lessee v. Levy, 4 US 308.
“A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance.” See Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409. “Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.” See Melo v. US, 505 F2d 1026. “The law provides that once State and Federal jurisdiction has been challenged, it must be proven.” See Main v. Thiboutot, 100 S. Ct. 2502 (1980). “Once jurisdiction is challenged, it must be proven.” See Hagens v. Lavine, 415 U.S. 533. “Where there is absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack.” See Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471. “No sanctions can be imposed absent proof of jurisdiction.” See Standard v. Olsen, 74 S. Ct. 768; Title 5 U.S.C., Sec. 556 and 558 (b). “The proponent of the rule has the burden of proof.” Title 5 U.S.C., Sec. 556 (d). “Jurisdiction can be challenged at any time, even on final determination.” See Basso v. Utah Power & Light Co., 495 2nd 906 at 910. “Mere good faith assertions of power and authority (jurisdiction) have been abolished.” See Owens v. The City of Independence, 445 US 622 (1980). “A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction.” See Wuest v. Wuest, 127 P2d 934, 937. “In a court of limited jurisdiction, whenever a party denies that the court has subject-matter jurisdiction, it becomes the duty and the burden of the party claiming that the court has subject matter jurisdiction to provide evidence from the record of the case that the court holds subject-matter jurisdiction.” Bindell v City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991) (“the burden of proving jurisdiction rests upon the party asserting it.”). “Until the plaintiff submits uncontroversial evidence of subject-matter jurisdiction to the court that the court has subject-matter jurisdiction, the court is proceeding without subject-matter jurisdiction.” Loos v American Energy Savers, Inc., 168 Ill.App.3d 558, 522 N.E.2d 841(1988)(“Where jurisdiction is contested, the burden of establishing it rests upon the plaintiff.”).
The law places the duty and burden of subject-matter jurisdiction upon the plaintiff. Should the court attempt to place the burden upon the defendant, the court has acted against the law, violates the defendant's due process rights, and the judge under court decisions has immediately lost subject-matter jurisdiction. In a court of limited jurisdiction, the court must proceed exactly according to the law or statute under which it operates. Flake v Pretzel, 381 Ill. 498, 46 N.E.2d 375 (1943) (“the actions, being statutory proceedings, … were void for want of power to make them.”) (“The judgments were based on orders which were void because the court exceeded its jurisdiction in entering them. Where a court, after acquiring jurisdiction of a subject matter, as here, transcends the limits of the jurisdiction conferred, its judgment is void.”); Armstrong v Obucino, 300 Ill. 140, 143, 133 N.E. 58 (1921) “The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree, however erroneous, cannot be collaterally assailed, is only correct when the court proceeds according to the established modes governing the class to which the case belongs and does not transcend in the extent and character of its judgment or decree the law or statute which is applicable to it.” In Interest of M.V., 288 Ill.App.3d 300, 681 N.E.2d 532 (1st Dist. 1997) (“Where a court's power to act is controlled by statute, the court is governed by the rules of limited jurisdiction, and courts exercising jurisdiction over such matters must proceed within the strictures of the statute.”); In re Marriage of Milliken, 199 Ill.App.3d 813, 557 N.E.2d 591 (1st Dist. 1990) (“The jurisdiction of a court in a dissolution proceeding is limited to that conferred by statute.”); Vulcan Materials Co. v. Bee Const. Co., Inc., 101 Ill.App.3d 30, 40, 427 N.E.2d 797 (1st Dist. 1981) (“Though a court be one of general jurisdiction, when its power to act on a particular matter is controlled by statute, the court is governed by the rules of limited jurisdiction.”);
2. TABLE OF AUTHORITIES – LACK OF JUDICIAL IMMUNITY
Thus, neither Judges nor Government attorneys are above the law. See United States v. Isaacs, 493 F. 2d 1124, 1143 (7th Cir. 1974). In our judicial system, few more serious threats to individual liberty can be imagined than a corrupt judge or judges acting in collusion outside of their judicial authority with the Executive Branch to deprive a citizen of his rights.
In The Case of the Marshalsea, 77 Eng. Rep. 1027 (K.B. 1613), Sir Edward Coke found that Article 39 of the Magna Carta restricted the power of judges to act outside of their jurisdiction such proceedings would be void, and actionable.
[W]hen a Court has (a) jurisdiction of the cause, and proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has not jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process . . . Id. 77 Eng. Rep. at 1038-41.
A majority of states including Michigan have followed the English rule to find that a judge had no immunity from suit for acts outside of his judicial capacity or jurisdiction. Robert Craig Waters, ‘Liability of Judicial Officers under Section 1983' 79 Yale L. J. (December 1969), pp. 326-27 and 29-30). Also as early as 1806, in the United States there were recognized restrictions on the power judges, as well as the placing of liability on judges for acts outside of their jurisdiction. In Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806), the Supreme Court confirmed the right to sue a judge for exercising authority beyond the jurisdiction authorized by statute. In Stump v. Sparkman, 435 U.S. 349 at 360 (1978), the Supreme Court confirmed that a judge would be immune from suit only if he did not act outside of his judicial capacity and/or was not performing any act expressly prohibited by statute. See Block, Stump v Sparkman and the History of Judicial Immunity, 4980 Duke L.J. 879 (l980). It is clear that a judge who acts in the absence of subject matter jurisdiction may be held liable for his judicial act. Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) and Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1872).
Judicial immunity may only extend to all judicial acts within the courts jurisdiction and judicial capacity, but it does not extend to either criminal acts, or acts outside of official capacity or in the ‘clear absence of all jurisdiction.' see Stump v. Sparkman 435 U.S. 349 (1978). When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid Constitutional provisions or valid statutes expressly depriving him of jurisdiction or judicial capacity, judicial immunity is lost.” Rankin v. Howard 633 F.2d 844 (1980), Den Zeller v. Rankin, 101 S.Ct. 2020 (1981).
As stated by the United States Supreme Court in Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), ‘[w]here there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.'
The constitutional requirement of due process of the law is indispensable:
“A judgment can be void . . . where the court acts in a manner contrary to due process.” Am Jur 2d, §29 Void Judgments, p. 404.
“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” —Merritt v. Hunter, C.A. Kansas 170 F2d 739.
“Moreover, all proceedings founded on the void judgment are themselves regarded as invalid.” Olson v. Leith 71 Wyo. 316, 257 P.2d 342.).
- THE NATURE OF SUBJECT-MATTER JURISDICTION:
The jurisdiction over the subject-matter is the right of the court to exercise judicial power over that class of cases, and is said to be essential, necessary, indispensable and an elementary prerequisite to the exercise of judicial power. US v Cotton, 535 US 625 (2002); Joy v Two-Bit Corp., 287 Mich 244; 283 NW2d 45 (1938); Prosecuting Attorney for Ingham County v American Amusement Co. Inc., 71 Mich App 130; 246 NW2d 684 (1976), cf, 21 CJS “Courts” § 18, p, 25. Without such jurisdiction existing, an order entered by the court is absolutely void. In re Matter of Hague, 412 Mich 532, 544; 315 NW2d 524 (1982). Therefore, a defense based upon the lack of jurisdiction cannot be waived and may be asserted at any time. Menna v New York, 423 US 61, 62-63 (1975)(citing People v Carpentier, 446 Mich 19; 521 NW2d 195 (1994) cf, Fox v Board of Regent of Michigan University, 375 Mich 238, 242; 134 NW2d 146 (1965).
SUMMARY: Jurisdiction is not just important it is everything and is rarely properly challenged when one has an attorney, who tends to want to argue by the hour until there is a settlement, vs attack the main issue…jurisdiction (*and the court rarely has it in No Harmed Party Cases).