From the January 2000 Idaho Observer:


Questioning Authority -- And How

Establishing the relationship of parties in dispute through Declaratory Judgment

by Hari Heath

Have you ever wanted to know how government can do the things it does to us? Or better yet, do you know how and why something government does to you is wrong, and feel you could prove it? Do you want to do something to put your country back on track? There is a way.

Both at the federal level and in state courts there is a judicial remedy called the Declaratory Judgment. Essentially, a declaratory judgment is a civil case asking the court to declare whether or not certain facts or matters of law are true. It is not an open door to ask a court any question, like “is the sky blue?” You have to be an involved party in an “actual and existing controversy” before you can bring a declaratory judgment lawsuit. Declaratory judgments can be filed against those in government. They can also be brought against another private party to resolve private issues.

The Idaho Uniform Declaratory Judgment Act states, “Courts...shall have the power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed...The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.” It also states that “This act is declared to be remedial; its purpose 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.”

Rights? Did they say rights?

If you have been paying any attention at all to things legal and the current acts of government, you may have noticed that our rights and the Constitution that secures them have largely vanished. Government does what government does because so far it has gotten away with it. Few people question government anymore.

Legal questions about our rights, status and legal relations, relative to some issue in controversy, is what declaratory judgments are all about. What are our rights? What truly is our status as Americans? Just what kind of legal relationship is government supposed to have with us? Who is the servant and who is the master here, and what legal duties does either one have to the other?

Declaratory judgments are intended to answer those kind of questions. If you do not question authority, then you will be submitting to it eventually. Once the wheel of authority begins rolling over you and your rights, those driving it just love to pour on the coal. If the use of this legal tool caught on, with more Americans questioning authority, we could collectively vent enough steam to slow down the engines of government. Then we might have a chance at putting the train back on the constitutional tracks.

Questions for Authority?

You have rights. The first Article of the Idaho Constitution and the federal Bill of Rights say so. Perhaps even more importantly, laws create the duties for government in its “legal relations” with you. Did government, or some one acting as an agent of government, adhere to all the requirements of law when it “related” with you?

There are no shortages of issues where government has usurped your rights or breached its legal duties to us. I'm sure we all could find a few things to straighten out in government. When you look into the legal requirements of a particular government action, it's amazing how many of their own rules they break, or rights they violate along the way.

A declaratory judgment can expose those errors and command certain performance from government. As a side benefit, if the courts are kept busy answering questions regarding how the government can do these unconstitutional things to us, they will have less time to plunder and destroy what's left of our nation.

Nearly everything we do has some form of license, permit or tax imposed on us before we are “allowed” to do it. Is there any constitutional authority for the license, permit or tax imposed? There might be. You will have to look before bringing a suit on that subject. If there appears to be no legal basis for what some government “authority” is doing, then it could be ripe for declaratory questioning.

Find the evidence. Government leaves a trail behind itself. How it does what it does is written down in court records, administrative records, executive orders, session laws and other documents ad nauseam. If they don't conform to all the requirements of law, and they are acting against you, they are creating a genuine controversy. You then have cause to sue them.

For example, how can a county pass an ordinance imposing your compliance with a building code when Article One, Section One, of the Idaho Constitution says “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety?” Where in the Constitution is a county or the state given the power to control how a man wishes to build his own house on his own property? If no such authority can be found, the ordinance may be nullified by your lawsuit. Through a declaratory judgment you could seek a legally binding declaration that you have the right to “enjoy the liberty” of “acquiring the property” of your home, where your “happiness and safety can be secured.”

And How

How to write and prosecute a lawsuit is usually learned in years of law school or years of hard knocks as a pro se litigant. You will need to know much more than this article can inform you of. If you wish to proceed and litigate your own suit, you must develop many skills. There's lots of paperwork to read, write and keep track of. Organization is key to your success. Learning to do effective legal research is a must. Law libraries are in almost every county and at law schools. Learn to use them. Librarians can be very helpful.

You can't play the game if you don't know the rules -- court rules. Declaratory judgments are a civil case so you will need to learn and understand the Rules of Civil Procedure. They will explain, in lawyers English, how the game is played from beginning to end. These rules will tell you what the procedural requirements are for the parties in the lawsuit and they will provide many remedies when “the other side” or the court doesn't play fair.

Some may prefer hiring a lawyer. You can. If you have lots of extra money and can find one you trust. This may be preferable to the costs of the “education” you will eventually receive if you litigate on your own. Lawyers, at least in theory, already know how to play the game. Getting them to play your game will be the challenge. They are all members of the same club and are not very likely to go out on a limb when their membership is at risk. Litigating without a lawyer is not for everyone, but it can be a valuable skill to develop.

Always try to see things from the other sides perspective and anticipate their moves. Try to discover what the argument against your case may be. Find a law student or professor who would be interested in your case. Have them take the other side and present a defense to your issue -- before you file your lawsuit.

A well-designed suit is very important. Bad lawsuits set bad precedent by giving the judiciary the opportunity to give bad answers to poorly presented questions.

Control the Gun Controllers?

Many lawyers and cities across our nation are suing gun manufacturers -- using the courts as political process to implement gun control by putting the manufacturers out of business through the phenomenal expense of excessive litigation. What if gun owners across our country reversed the process by suing those lawyers and cities for infringing on their gun rights? If multitudes of suits were filed naming those lawyers and cities as defendants, would they suffer the “costs” of their litigious infringement on our Second Amendment freedoms?

Would an army of pro-gun, pro se litigants using the declaratory judgment as a tool for freedom make greedy law firms have second thoughts about suing gun manufacturers? Could the NRA and the GOA present seminars on how to write and prosecute winnable pro-gun, pro se lawsuits? The pen can be mightier than the bullet.

Administrative Treason?

Constitutional government is a wonderful thing. It is small and limited. There are a few and certain things which it can do and many things which it cannot do. And then there is the agency.

Agencies, typically, are those big government things that are constantly expanding their “authority” to take over and run every detail of everyone's life. They usually assume the powers of all three branches of government, legislative, executive and judicial. Can they? Not if their acts are properly questioned by citizen litigants who are able to use a declaratory judgment. If called to answer in a declaratory judgment, and controlled by injunctive and mandamus relief, their wings just might get clipped.

How? Article Four, Section 20 of the Idaho Constitution deems agencies to be part of the executive branch and Article Two declares “...no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others...” With this evidence as a legal fact, can an Idaho agency promulgate its own rules (a legislative act), or issue a “decision” (a judicial act)?

Is an agency coming after you or your stuff with an administrative decision for violating its' “rules?” Are you being compelled to perform or comply with the mandates of an agency that operates in violation of the separation of powers doctrine found in Article Two? Isn't about 90 percent of government these days some form of administrative agency? Are we witnessing the destruction of our constitutional government by suffocation with overlays of an administrative regime? Would the tide of this administrative treason be turned, if many Americans learned to litigate, legally expose the truth, and the law, and demand a remedy?

Costs and Benefits

What will it cost and what will I get if I win? It costs $150 to file a suit in Federal Court and about half that in state court. Add costs for paperwork, copies, postage and serving the summons and complaint. And time. And travel. Lawsuits can sometimes take years to win, or lose, especially if there is an appeal. Be prepared for a long battle if you choose to file a suit.

In the end you get a paper that says such and such is declared to be true. It may be “either affirmative or negative” to your cause and “shall have the force and effect of a final judgment or decree.” Declaratory judgments are intended to settle the whole controversy. You can also petition for other relief in your declaratory suit. That might be only injunctive relief -- to stop some act from happening; or mandamus -- to compel the performance of the other party; or you may wish to seek damages -- ie. money or some act of retribution.

Judges and prosecutors (members of the bar association's monopoly) have created certain “immunities” for themselves and others when they are being sued for damages. If your suit only seeks declaratory or injunctive relief, they have no immunity (according to their self made rules) and they can be sued.

It will be one hell of an education. You will get to see all kinds of hideous tricks that lawyers pull to hide and twist the truth. It won't be easy. You will be doing battle with trained opponents. However, you may find that lawyers are not all that smart. If you have done your research and know what your rights are and what the law is, they will squirm trying to get around the truth.

Even if you don't prevail, you will gain some keen insights into that corrupted world that the lawyers have carved for themselves by owning the judicial branch of government through the monopoly of the bar association.

There are many Americans who have developed an informal network of patriotic litigators. Numerous books, manuals, seminars and schools are available to educate and assist you if litigating for liberty is your calling. As you educate yourself on legal matters, and apply what have you have learned, you will find many Americans willing to help your efforts.

If more Americans learned how the court system operated and how to properly question authority, we could turn the tides that are currently sucking our nation down the drain. It's your country. Will you question authority or submit to it?

The Idaho Uniform Declaratory Judgment Act can be found in Idaho Code, beginning at Title 10, section 1201. Most, if not all states have passed their own version of the Uniform Declaratory Judgment Act. A Federal Declaratory Judgment is authorized in Title 28, section 2201. Civil Procedure Rule 57 also governs the use of the declaratory judgment remedy.

Find and study one of the many good civil procedure textbooks and the Rules of Civil Procedure for the state or federal court you may file your case in. Try West Publishing at 1-800-328-9352, www.westpub.com; or Civil Procedure: Examples and Explanations, by Joseph Glannon, from Aspen Publications 1-800-950-5259, www.aspenpub.com/lawsch/index.html

Many schools and organizations exist to educate and support American liberty litigators. Here's where to find a few of them:

teamlaw.com;

Citizens Justice Programs, POB 90, Hull, Mass., 02045, 617-925-5253;

Freedom Law School, 714-838-2896, www.freedomlaw.org

Right Way Law, c/o 3465 S. Arlington Rd. E312, Akron, Ohio, near 44132, 330-699-1605, rightwaylaw.org

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