Date: Mon, 12 Dec
2005 20:42:38 -0500
From: "Ken Wiggins" <wiggins_k@hotmail.com>
Subject: Right to Contract
Time for issue number three: Right
to Contract.
Note that I keep referring to Void
Judgment. Its a powerful tool. It
is any judgment that was made where
the court lacked jurisdiction OR was
induced by fraud OR it violated due
process. It is not necessary to prove
all three components - any one of
the three creates a Void Judgment.
A void judgment which includes judgment
entered by a court which lacks jurisdiction
over the parties or the subject matter,
or lacks inherent power to enter the
particular judgment, or an order procured
by fraud, can be attacked at any time,
in any court, either directly or collaterally,
provided that the party is properly
before the court. See Long v. Shorebank
Development Corp., 182 F.3d 548 (C.A.
7 Ill. 1999) Void judgment is one
where court lacked personal or subject
matter jurisdiction or entry of order
violated due process, U.S.C.A. Const.
Amend. 5-Triad Energy Corp. v. McNell,
110 F.R.D. 382 (S.D.N.Y. 1986).
A Void Judgment may be "attacked
in any court at any time", and
thus may be used to overcome "timely
response" and/or "timely
filing. Thus it has no statute of
limitations, and may be asserted at
the local level ... on up.
=============================================
Right To Contract and Not Contract
/ Unconscionable Contract/ Void Judgment
15) Federal Constitutional law, Article
1 Section 10, is clear in stating
that the Petitioner has the "right
to contract", which includes
the right to "not contract."
Here, the State seems to claim that
it can both "create a contract"
and also bind the Petitioner to it,
without the permission or conscionable
agreement of the Petitioner. The State
openly impairs the Petitioner's right
to contract.
16) The State is mandating multiple
unconscionable contracts and violates
multiple contractual obligations secured
under "Obligations of Contracts"
under Article I, Section 10, of the
U.S. Constitution. For example: the
right of a fit parent to contract
with and for his child, Child Support
- a concept foreign to the Common
Law - is a 'Special Obligation' that
is void of any quid pro quo or reciprocal
arrangement, the State's agenda now
provides incentives to women to unilaterally
receive tax-free income in excess
of the amounts needed for the support
of the necessities of the child. This
socialist "Best Interest"
doctrine violates freedom to contract
by predetermining that an innocent
person will suffer punishment, contrary
to the rule of Common Law. The State
impairs the obligation of this right
to contract by inserting itself into
the proceedings by claiming superior
title to the children and provides
remedy to one gender only. The State
asserts that the innocent person suffers
such punishment, absent of some finding
of "fault", whereas, in
context, it is most normally the party
with the "unclean hands",
the mother, who filed for the divorce,
commonly kidnapping the children,
often filing false abuse charges or
promoting parental alienation.
17) The claim is fraudulent in Common
Law and fully in violation of Petitioner's
Natural Constitutional Rights. The
State creates a completely "unconscionable
contract", which no person in
their right mind would enter, and
which is totally void of "quid
pro quo" redemption. This fully
violates all mandates of Common Law.
Any judgment founded or "induced
by fraud" is the subject thereof
to Void Judgment.
(34) Hale v. Henkel 201 US 43 at 89
(1906. (35) [Rights and Remedies Under
U.C.C. Article 2, by Harold Greenberg,
©1987, Wiley Law Publications, John
Wiley & Sons, New York [ pp. 282-283])
Wiley - Webmaster for:
http://www.amatterofjustice.org
http://www.parentsforchildren.net
A court lacks jurisdiction anytime
it denies you the Bill of Rights or
amendments, particularly Due Process.
I.e. most M209A's are invalid by denial
of Due Process evidentiary hearings.
VOIDNESS is a
very powerful tool, and certainly
makes any judgment attackable when
Due Process is denied, property taken,
no cross exam of witnesses/accusers
permitted. etc.
As I noted before:
The
rational/explanation of "LACK
OF JURISDICTION " thus a VOID
judgment is further described
in a Supreme Court case referenced
in Bass:
Since the Sixth Amendment
constitutionally entitles one charged
with crime to the assistance of
counsel, compliance with this constitutional
mandate is an essential jurisdictional
prerequisite to a federal court's
authority to deprive an accused
of his life or liberty. When this
*468
right is properly waived, the
assistance of counsel is no longer
a necessary element of the court's
jurisdiction to proceed to conviction
and sentence. If the accused, however,
is not represented by counsel and
has not competently and intelligently
waived his constitutional right,
the Sixth Amendment stands as a
jurisdictional bar to a valid conviction
and sentence depriving him of his
life or his liberty.
A court's jurisdiction at
the hearing of trial may be lost
'in the course of the proceedings'
due to failure to complete the court--as
the Sixth Amendment requires--by
providing counsel for an accused
who is unable to obtain counsel,
who has not intelligently waived
this constitutional guaranty, and
whose life or liberty is at stake.
[FN22] If this requirement of
the Sixth Amendment is not complied
with, the court no longer has jurisdiction
**1025
to proceed. The judgment of
conviction pronounced by a court
without jurisdiction is void, and
one imprisoned thereunder may obtain
release by habeas corpus.
Johnson v. Zerbst
58 S.Ct. 1019
U.S. 1938.
Let me
make a leap of faith then and suggest
the same principal applies to the
Fifth Amendment and Due Process.
I.e.
No 5'th Amendment DUE PROCESS
MEANS NO JURISDICTION
per the Supreme Court interpretation
of the Bill of RIghts. .
MORE:
A
judgement is void if it not consistent
with Due Process of law. Orner v.
Shalala, 30 F.3d 1307, 1308 ( C.A.10
(Colo.),1994); V.T.A., Inc. V. Airco,
Inc., 597 F.2d 220, 221 (1979).
A judgment reached without due process
of law is without jurisdiction and
thus void. Bass v. Hoagland, 172
F. 2d 205, 209 (1949)
Any motion
for relief from a void judgment
is timely regardless of when it
is filed. V.T.A., Inc. V. Airco,
Inc., supra @ 224 (footnote no.
9). If a judgment is void, it
is a nullity from the outset and
any Civ. R. 60(B) motion is therefore
filed within a reasonable time.
Orner v. Shalala, supra @ 1308.
If voidness of judgment is found
then relief from judgment is not
discretionary and any order based
upon that judgment is also void.
V.T.A., Inc. V. Airco, Inc.,supra
@ 221; Venable v. Haislip, 721
F.2d 297, 298 (1983).
Sure, you have
a couple of choices to attack these
orders, the appeals court, the federal
court, and the Superior Court.
Personally I am writing a complaint
for federal court at the moment. I
will file down here. (Its my
Christmas present for my EX!!.
LOL). I plan to have some federal
marshals serve it up. I think
that adds a touch of pizzazz to the
service.
File in federal
court or in Mass Superior Court as
a violation of state civil rights
and/or federal civil rights.
A Null judgment can be attacked in
any court at any time as I read it.
Note the Mass Civil rights laws are
supposed to be more liberal than the
federal laws - I believe no
state action is needed for a
starter and the interpretation is
also looser.
INSTRUCTION ON
FILING AGAINST A VOID ORDER:
File a motion
for an evidentiary hearing.
You can ask for a review anytime you
desire you know per part 3 of 209A.
Note your civil rights and due process
are being violated as well as the
right for an evidentiary for due process.
This sets you up well for appeal or
review by another court.
I do not believe
you need to file an appeal to attack
the judgment as a nullity, but I would
file one anyhow. Appeals are
free to file and preserve rights.
I have read cases where Appeals Judges
say, "he never filed an appeal
so it must have been ok with him."
The lack of evidentiary
hearings is a time saver and the courts
do not have enough hours in the year
to hear all the RO's they renew.
This is why VA only has perhaps 1500
RO's a year which are likely well
needed. The rest of the false
garbage never gets approved initially
or renewed later.
The trick in Federal
court is the Fed wants to throw these
family court issues out and avoid
them. You have to use Catz approach
on the Due Process attack. Don't
ask for a change in the judgment,
just a declaratory judgment the process
used was invalid. Then any order
resulting by from that process is
NULL by definition.
As soon as these
orders start getting trashed,
the courts will have to change their
approach. The legislature will
have to rethink its approach as will
the feministas. We note the
SJC has several times stated evidentiary
hearings should be permitted
and added to due process. The
lower courts ignore it because nothing
happens.
More
on Void and voidable orders
Twenty-two reasons to vacate void
judgment
Void judgments are those rendered by a
court which lacked jurisdiction, either
of the subject matter or the parties.
Wahl v. Round Valley Bank 38 Ariz, 411,
300 P. 955(1931), Tube City Mining &
Millng Co. v. Otterson, 16 Ariz. 305,
146p 203(1914); and Millken v. Meyer,
311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d
278 (1940).
I can go into void
judgments at great length with enough
court case cites to make anybody's eyes
glaze over but I shall refrain. Let it
be said that the really big deal with
subject matter jurisdiction is that it
can never be presumed, never be waived,
and cannot be constructed even by mutual
consent of the parties. Subject matter
jurisdiction is two part ; the statutory
or common law authority for the court to
hear the case and the appearance and
testimony of a competent fact witness,
in other words, sufficiency of
pleadings.
Subject matter failings
are usually the following:
(1) No petition in the
record of the case, Brown v. VanKeuren,
340 Ill. 118,122 (1930).
(2) Defective petition filed, Same case
as above.
(3) Fraud committed in the procurement
of jurisdiction, Fredman Brothers
Furniture v. Dept. of Revenue, 109 Ill.
2d 202, 486 N.E. 2d 893(1985)
(4)Fraud upon the court, In re Village
of Willowbrook, 37 Ill, App. 3d
393(1962)
(5)a judge does not follow statutory
procedure, Armstrong v. Obucino, 300 Ill
140, 143 (1921)
(6)Unlawful activity of a judge, Code of
Judicial Conduct.
(7)Violation of due process, Johnson v.
Zerbst, 304 U.S. 458, 58 S.Ct. 1019(193
;Pure Oil Co. v. City of Northlake, 10
Ill.2d 241, 245, 140 N.E. 2d 289
(1956);Hallberg v Goldblatt Bros., 363
Ill 25 (1936), ( If the court exceeded
it's statutory authority. Rosenstiel v.
Rosenstiel, 278 F. Supp. 794 (S.D.N.Y.
1967)
(9) any acts in violation of 11 U.S.C.
362(a),IN re Garcia, 109 B.R. 335 (N.D>
Illinois, 1989).
(10) Where no justiciable issue is
presented to the court through proper
pleadings, Ligon v. Williams, 264 Ill.
App 3d 701, 637 N.E. 2d 633 (1st Dist.
1994)
(11)Where a complaint states no
cognizable cause of action against that
party, Charles v. Gore, 248 Ill App. 3d
441, 618 N.E. 2d 554 (1st. Dist. 1993)
(12) where any litigant was represented
before a court by a person/law firm that
is prohibited by law to practice law in
that jurisdiction.
(13) When the judge is involved in a
scheme of bribery (the Alemann cases,
Bracey v Warden, U.S. Supreme Court No.
96-6133(June 9, 1997)
(14) Where a summons was not properly
issued.
(15) Where service of process was not
made pursuant to statute and Supreme
Court Rules, Janove v. Bacon, 6 Ill. 2d
245, 249, 218 N.E. 2d 706, 708 (1953)
(16) when the rules of the Circuit court
are not complied with.
(17) when the local rules of the special
court are not complied with. (One Where
the judge does not act impartially,
Bracey v. Warden, U.S. Supreme Court No.
96-6133(June 9, 1997)
(19) where the statute is vague, People
v. Williams, 638 N.E. 2d 207 (1st Dist.
(1994)
(20) when proper notice is not given
toall parties by the movant, Wilson v.
Moore, 13 Ill. App. 3d 632, 301 N.E. 2d
39 (1st Dist. (1973)
(21) where an order/judgment is based on
a void order/judgment, Austin v. Smith,
312 F 2d 337, 343(1962);English v.
English, 72 Ill. App. 3d 736, 393 N.E.
2d 18 (1st Dist. 1979) or
(22) where the public policy of the
State of Illinois is violated, Martin-Tregona
v Roderick, 29 Ill. App. 3d 553, 331
N.E. 2d 100 (1st Dist. 1975)
And another that can and
should be checked on is does the judge
have a copy of his oath of office on
file in his chambers? If not, he is not
a judge and yes, you can go into his
office and demand to see a copy of his
oath of office at any time. The laws
covering judges and other public
officials are to be found at 5 U.S.C.
3331, 28 U.S.C. 543 and 5 U.S.C. 1983
and if the judge has not complied with
all of those provisions he is not a
judge but a trespasser upon the court.
If he is proven a trespasser upon the
court (upon the law) not one of his
judgments, pronouncements or orders are
valid. All are null and void.
In all, there are 22
indices which tell us whether or not a
court had subject matter jurisdiction
and when examining a judgment one has to
know each and every one of them by
heart. If he knows them by heart he can
go through a judgment like Sherman going
though Georgia and point out all of the
errors which might make the case a void
judgment, null and void upon it's face.
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