by Randy L. Geiszler, email: behold@teleport.com

As many of you may already understand the government for the united States of America, as well as the governments for the several States in America, as intended by the founders thereof, are supposed to be tripartite in there design; that is, they are to be composed of three branches. If you study the subject you will find that the general purpose of this tripartite design is a system of checks and balances to assure that the functionaries of government are made available to the Citizen to hold government within its legitimate scope of authority. This is a very basic principle of our Republican form governments which is extensively discussed in a pamphlet by Robert W. Wangrud entitled Triune Republic.

The questions that will be discussed here are: (1) Which branch of government can take legitimate personal cognizance of the organic State Citizen? and, (2) What facts can expose illegal process, and its execution, when issued from a branch of government that has no right to exercise direct authority upon the organic State Citizen?

As many of you may already know the purpose of the judicial branch of government was to interpose its authority whenever the other two branches attempted to interact with the Citizen. The judiciary was intended to be made available to the Citizen to question the legitimacy of the actions of the other two branches of government.

For instance, the Sixth Article in Amendment of the Constitution for the united States of America requires an indictment to bring criminal charges. To obtain an indictment an executive officer, who is charged with the duty to enforce the laws and constitution, must bring his accusation before the judiciary. Only through the judiciary can the indictment issue, followed by judicial process, summons or warrant, to compel the appearance of
the party served. The enforcement officer has no right to issue his process, summons or warrant, directly upon the organic State Citizen.

The legislature is charged with the duty of passing legislation, the executive department is charge with the duty of enforcing legislation, and the judiciary is charge with the duty of settling controversies and case between Citizens or Citizens and their government. Since the judicial branch was intended to be a check between the Citizens and the government they created, the Citizen is only amenable to judicial process. If the legislative
or executive branches could issue process directly upon the Citizen, then the judicial branch would not be interposed for our protection. Only where the Citizen has become a part of government is he amenable to process directly issued from some branch of government other than the judiciary. For instance, a collector of the internal revenue, who has entered into an agreement or commission to collect the revenue and to hold and transmit the public money to the treasury, could be compelled, by process directly from the Secretary of the Treasury, to transmit the public money he holds. This is simply because the collector is doing a job for the government as one of its internal parts. If the judiciary were to interpose its authority, with reference to the collector, it would be a violation of separation of powers, since the executive, according to statute and the constitution, has the power to regulate its own officers and employees. Even if a court is authorized by the legislature (legislative power) to interpose its authority, in the instance of the collector of the revenue, the interposition is legislative in character and is an exercise of mere legislative (statutory) authority, wherein the court is a legislative tribunal and the judges thereof are merely legislative commissioners. (See BEHOLD!, July, 1989, Vol. 4, No. 7.)

By the same token, if any organic State Citizen takes upon himself to become a functionary of the government, by exercising its powers, assuming its franchises, or stipulating to statutory agreements with it, then he to would be treated like the collector of the revenue and be amenable to administrative process, to compel him to do the duties he has assumed. (e.g. the status of "Taxpayer", "licensee", "corporation" and etc.)

On the other hand, the organic State Citizen that has not assumed such duties, and who stands in his original relationship to government, as a Citizen, is not amenable to statutory process issued directly by the executive, or by legislative agencies or officers of the government.

How can we tell the differences between what type of process has issued against us, when the process purports to be judicial, while it is in actuality legislative process? As an example let us take a Uniform Traffic Citation (summons) and Complaint into view.

Traffic citations are issued by a city, county or state police officer. For purposes of issuing traffic citations state statutes define all police officers, whether city, county or state, under the same definition, whether the classification given them be "police officer", "law enforcement officer" or some other similar designation. So, for the purposes of traffic citations all these officers can, alike, be treated as state enforcement officers, executive in their character, exercising legislative power, according to legislative edict (statute). When these officers issue their own uniform citations they do so by virtue of a statute which authorizes them to do so. These officers issue own their citation directly, which constitutes both a "summons" (process) and complaint (accusation). They do not go before any judicial body, with a verified (upon oath or affirmation) complaint, nor do they request the issue of process from a judicial body. They merely make their own complaint and issue their own process directly upon the party to whom it is directed. This is our first indication that a Uniform Traffic Citation and Complaint is not judicial process, because directly issued from an executive officer by authority of legislative enactment.

Once the officer has issued his summons and complaint he returns service thereof to a so-called court, that is, he files the complaint and verifies service of the summons in the so-called court. The government would have you believe that the citation and complaint are some how converted, by being filed in the tribunal, and would have you further believe that the summons is judicial process. Nonetheless, there is no justification for claiming that legislative process can give rise to judicial venue or jurisdiction. As an example, when process is issued by Con gress, to compel attendance of one of its members, no courts jurisdiction is, or can be, interposed to enforce the legislative process; and, even if the legislative process where filed in a court, it would not give rise to judicial power since the process is within the exclusive cognizance of the legislature (statute). The fact is that the process is strictly legislative, issued and served by an executive officer, giving rise only to an administrative proceeding. It could be said that the Citation and Complaint are merely administrative process and that the so-called court, which it is filed in, is merely an administrative tribunal of exclusive legislative jurisdiction.

Now let us look at the face of the citation and complaint to see if we can show that it is not judicial process. Bona fide judicial process must have certain attributes on its face to disclose that it is truly judicial. Among these attributes are, the name or title of the court from whence it issued; the term of the court; the signature of the issuing clerk or judge of the court; and, the seal of the court. Traffic citations are generally deficient in all four attributes, having none of them on their face, which is proof that the process is not judicial.

The Citation might tell you what so-called court you are to appear in, but the citation is not captioned in the name or title of the court, indicating that it was not issued by the court, but is merely returned their by the executive officer pursuant to legislative edict (statute).

The citation does not bear the term of the court which is necessary to disclose that it was issued from a judicial court, while sitting as such, in term time, indicating that the court, even if a judicial body for certain purposes, is not acting as a judicial body for purposes of the citation.

The citation does not bear the signature of the judge or clerk of the court, but, instead bears the signature of the officer, indicating that he, not the court, issued the process (summons).

And finally, the citation does not bear the seal of the court, indicating that the process was not issued under the courts authority, and was issued without the judicial power.

These facts can be depended upon to show that the process is not judicial. In the mean time we can state affirmative facts, as in the example affidavit appearing in the August, 1989, issue of Behold!, to show that we are only amenable to judicial process. We can assert that the process issued, and was served, within a legislative venue, under exclusive legislative authority, by an executive (or legislative) officer, without judicial cognizance, and that the facts related to the status of the party served, show that process may only be served upon him in a judicial venue, from a purely judicial court, taking judicial cognizance, as a purely judicial function.

The facts could be related in a petition for writ of habeas corpus, where the party has been incarcerated on the legislative process, and it could be shown how the process, having issued outside its legitimate venue, on a party immune thereto, is not sufficient to make the restraint of his liberty legal or lawful. On the return to a writ of habeas corpus the state may depend upon the legislative process, treating of it as judicial process, while we can show that the process on its face is not judicial within the constitutional meaning. In addition we can make a showing of facts that prove we are immune to service of such internal administrative legislative process.

Should this fail, and our discharge be denied on the habeas corpus hearing, according to Hurd on Habeas Corpus, pages 264 - 267 (reprints available from BEHOLD!), we have a right to file suit for false return to the writ of habeas corpus. On the suit for false return the validity of the process, as well as the facts which purport to support it, can be brought into question before a jury. If the jury decides that the return to the writ of habeas corpus is false, an alias habeas corpus can be applied for, based on the verdict of the jury, and the process could not be introduced to evidence the validity of the incarceration on the subsequent habeas corpus.

The legal assertions set out above should not be confused with the facts that support them, that is, arguments and facts should not be intermixed in affidavits. Affidavits are strictly for the assertion of facts in a fashion that is not argumentative or conclusive, while legal arguments should be saved for such time as the facts have been established and it is necessary to show whether or not a principle of law or statute should apply according to the facts. Therefore in treating of the above subject you should separate facts from the legal arguments you intend the facts to support, reserving each for their proper time.

In the past we have mistakenly attacked the complaint rather than the summons or warrant. A complaint, information, or indictment are not process, but, instead, are the accusation. The summons, or writ of summons, as it used to be called, or the warrant, are process, and it is these instruments that institute the proceedings against you. While the process issues on the basis of the complaint, if we intend to challenge venue and personal jurisdiction, it is the service of process, not the complaint, which must be attacked in the first instance.

If you are immune to the service of legislative process, then, even if the summons or warrant were actually served upon you, the service is illegal and void and cannot attach the personal jurisdiction of the legislative tribunal. When we are immune to service of legislative process it is proper to demand that the service be quashed as illegal and void. If the service of process is quashed the cause cannot be continued because the party cannot legally be brought before the legislative tribunal.

If the legislative tribunal refuses to quash the service of process, extraordinary remedies, such as mandamus could be used to make the legislative tribunal and judge show cause why it should be allowed to treat the process as valid. When the legis lative tribunal refuses to quash process illegally served, it is an abuse of discretion, on the part of the judge responsible, which is cognizable on writ of mandamus. While the discretion of
a judge may not be coerced by mandamus, an abuse of discretion may be corrected by writ of mandamus.

Other remedies may also be available. No remedy should be used until you have done a full investigation of the legitimate purpose of the remedy to determine whether it can properly be used for the purposed you intend. Nonetheless, if you are immune to the service of legislative process, because you are outside the venue or scope of the exclusive legislative power, exercised in service of legislative process, then it is proper to challenge
the validity of the process and the service thereof. In other words, if it cannot be shown that you can be brought within the meaning of "person", as used in the statute under which your are charged and summoned, you are outside the venue of the process and immune to service of process pretended to be made under
statutory authority.