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The Cur­rent Year is 6263

I am not this hair or this skin. I’m the soul that lives within!

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Good advice from Ken­neth Wayn

Law schools teach their stu­dents that they should never ask a ques­tion in trial that they do not already know the answer to. This is good advice for any­one involved in lit­i­ga­tion even at the admin­is­tra­tive level.


Know the Law”. This knowl­edge is not for the pro­pose of telling your adver­sary the law. They are already pre­sumed to know the law. Knowl­edge of the law will allow you to for­mu­late ques­tions of your adver­sary that will lead to your oppo­nent hav­ing to assert the very posi­tion you want the record to reflect. Since your adver­sary has now asserted your posi­tion you now sim­ply agree with your adver­sary and win. Scrip­ture teaches “Agree
with thine adver­sary quickly”, so does law.

A few sim­ple exam­ples:
A per­son that your rea­son­ably cer­tain is rep­re­sen­ta­tive of one of these munic­i­pal cor­po­ra­tions con­tacts you and asserts that you need to con­tact them to obtain a license or per­mit. We respond and agree that if we have an oblig­a­tion to get such a license and per­mit we should cer­tainly do so. Then we ask that per­son to iden­tify them­selves and spe­cially iden­tify their prin­ci­ple. Is it the repub­lic or the munic­i­pal cor­po­ra­tion? If the repub­lic we want to see the con­sti­tu­tional del­e­ga­tion of author­ity to com­pel invol­un­tary asso­ci­a­tion and servi­tude. If the munic­i­pal cor­po­ra­tion we need to know if they are act­ing in a gov­ern­men­tal capac­ity, a pro­pri­etary capac­ity or as a cor­po­rate ser­vices ven­dor. If in a gov­ern­men­tal capac­ity, we need to be informed of the con­sti­tu­tional del­e­ga­tion of author­ity to com­pel invol­un­tary asso­ci­a­tion and servi­tude. If in a pro­pri­etary or com­mer­cial ven­dor capac­ity we need to see the under­ly­ing con­tract upon which the oblig­a­tion lies.


Another exam­ple:
A per­son that we can be cer­tain is a rep­re­sen­ta­tive of one of these munic­i­pal cor­po­ra­tions con­tacts us and asserts that we have an oblig­a­tion to col­lect from oth­ers and return to the gov­ern­men­tal or munic­i­pal orga­ni­za­tion sales or income taxes from other peo­ple. We respond and agree that if we have an oblig­a­tion to col­lect and return such a tax we should cer­tainly do so. Then, we ask that per­son to iden­tify them­selves and spe­cially iden­tify their prin­ci­ple. Again, is it the repub­lic or the munic­i­pal cor­po­ra­tion? If it is the repub­lic, we want to see the con­sti­tu­tional del­e­ga­tion of author­ity to sub­ject us to invol­un­tary and uncom­pen­sated servi­tude as a tax col­lec­tor. If it is the munic­i­pal cor­po­ra­tion we again need to know if they are act­ing in the gov­ern­men­tal capac­ity, pro­pri­etary or as a munic­i­pal ser­vices ven­dor. If in a gov­ern­men­tal capac­ity, we again need to know the con­sti­tu­tional author­ity to sub­ject any­one to invol­un­tary and uncom­pen­sated asso­ci­a­tion and servi­tude. If in a pro­pri­etary or com­mer­cial ven­dor capac­ity we again need to see the under­ly­ing con­tract upon which the oblig­a­tion lies. When the agency rep­re­sen­ta­tive asserts that they can­not pro­duce proof of the under­lin­ing oblig­a­tion we may sim­ply agree with them that no evi­dence of an under­ly­ing oblig­a­tion exists and that their orig­i­nal process fails to state a claim upon which relief may be granted. We must also, in addi­tion to know­ing the law, be well dis­posed to use it.
If we are forced to lit­i­gate to cor­rect records cre­ated when the rep­re­sen­ta­tive pre­sumed a claim, we can eas­ily get sum­mary judge­ment base upon the fact that the agency through its rep­re­sen­ta­tive has asserted that they can pro­duce no evi­dence of a law­ful claim. We agree that there is no law­ful claim, there is no con­tro­versy there­fore sum­mary judge­ment is the cor­rect rem­edy. Once the fact of no oblig­a­tion is estab­lished by sum­mary judge­ment then appro­pri­ate orders can be given to cor­rect records, reviv­ing seized prop­erty, or oth­er­wise cor­rect the wrongs result­ing from the rep­re­sen­ta­tives erro­neous pre­sump­tion of an oblig­a­tion. To accom­plish this we must study and under­stand the rules of the court in which we will lit­i­gate. The rules are bind­ing upon the court and its offi­cers and pro­vide if prop­erly admin­is­tered most func­tions of the court are min­is­te­r­ial and not dis­cre­tionary. If the action is sig­nif­i­cantly adverse to the sta­tus quo the trial court is likely to make errors. These errors can be addressed on appeal or col­lat­eral attack and if sub­stan­tive may pro­vide grounds for hold­ing the offi­cers of the court respon­si­ble for the dam­ages based on the breach of their oath or affir­ma­tion con­tract required by Arti­cle 6 of the fed­eral con­sti­tu­tion.
(Pre­sented by Ken­neth Wayn, Insti­tute of National Sem­i­nars, Novem­ber 141516, 2003, Salt Lake City, Utah)


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Chess club today! will be home late!

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