Aurora  Bautista Quicho
207 Albatross Lane
Fountain Valley, California
Attornatus Privatus

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

Aurora Bautista Quicho,            ) CASE NO.  BC324176
              Counterclaimant,     ) 
                                   ) WRIT OF ERROR QUAE CORAM
             v.                    ) NOBIS RESIDANT RE JOHN WILEY
                                   ) MARK ARNOLD, LAURA ELLISON, 
THE PEOPLE OF THE STATE OF         ) AND THOMAS SOKOLOV;
CALIFORNIA, et al.                 ) ORDER TO SHOW CAUSE
                                   ) 
              Counterdefendants.   ) 
                                   ) 
                                   ) 
                                   ) 
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1.  THE COURT COMES NOW, ON ITS OWN MOTION, TO review the facts, record, and process resulting in the order entitled ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND AND DISMISSING DEFENDANTS JOHN WILEY, MARK ARNOLD, LAURA ELLISON AND THOMAS SOKOLOV and filed February 4, 2005.

SUMMARY

2.  On January 10, 2005, at 8:30am, in Department 30, the above-entitled court of record convened to consider a demurrer by counterdefendants John Shepard Wiley Jr., Mark S. Arnold, Laura C. Ellison, and Thomas R. Sokolov.  Contrary to the requirements of the court of record, the magistrate assumed the mantel of a tribunal and proceeded independently.  The purpose of this writ is to restore the orderly decorum of the court and to correct defective impromptu process and usurpation of legislative and court powers taken by the magistrate without leave of court.

3.  As we have stated before, this court has great admiration for the magistrates.  Their training, experience, and wisdom are of great value in guiding this court toward a just resolution of issues.  

4.   But, we are mindful of the wisdom of Thomas Jefferson when he commented, "We all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side.” 

5.  It is, in part, with that inspiration that this court is established as a court of record.

DETAIL

6.  The following is organized into three sections:

	  I.  Judicial cognizance
	 II.  Findings of fact, Discussion and Conclusions of Law
III.  Impeachment and Writ

I.
Judicial Cognizance

7.  As in prior hearings, this court takes judicial cognizance of and decrees the following:

8.  JUDICIAL COGNIZANCE.  Judicial notice, or knowledge upon which a judge is bound to act without having it proved in evidence.  [Black's Law Dictionary, 5th Edition, page 760.]

9.  The sovereignty of the state resides in the people thereof... [California Government Code, Section 100(a)]

10.  The people of this state do not yield their sovereignty to the agencies which serve them.  [California Government Code, Sections 11120 and 54950.]

11.  Laws, whether organic or ordinary, are either written or unwritten.  [California Code of Civil Procedure, Section 1895.]

12.  A written law is that which is promulgated in writing, and of which a record is in existence.  [California Code of Civil Procedure, Section 1896]

13.  The organic law is the Constitution of Government, and is altogether written.  Other written laws are denominated statutes.  The written law of this State is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States.  [California Code of Civil Procedure, Section 1897]

14.  Any judicial record may be impeached by evidence of a want of jurisdiction in the Court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings.  [California Code of Civil Procedure, Section 1916]

15.  ...at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects...with none to govern but themselves.....  [CHISHOLM v. GEORGIA (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL (1793) pp471-472.]

16.  The very meaning of 'sovereignty' is that the decree of the sovereign makes law. [American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas. 1047.]

17.  The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative.  [Lansing v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3, 7.]

18.  A consequence of this prerogative is the legal ubiquity of the king. His majesty in the eye of the law is always present in all his courts, though he cannot personally distribute justice. (Fortesc.c.8. 2Inst.186)  His judges are the mirror by which the king's image is reflected.  1 Blackstone's Commentaries, 270, Chapter 7, Section 379.

19.  ....This declaration of rights may not be construed to impair or deny others retained by the people.  [California Constitution, Article 1, Declaration Of Rights Sec. 24.]

20.  The state cannot diminish rights of the people.  [Hertado v. California, 100 US 516.]

21.  The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.  [Davis v. Wechsler, 263 US 22, 24.]

22.  Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.  [Miranda v. Arizona, 384 US 436, 491.]

23.  There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights.  [Sherer v. Cullen, 481 F 946.]

24.  Whereas, the people of California have presented a constitution....and which, on due examination, is found to be republican in its form of government....  [Act [of Congress] for the Admission of California Into the Union, Volume 9, Statutes at Large, Page 452.]

25.  Republican government.  One in which the powers of sovereignty are vested in the people and are exercised by the people, either directly, or through representatives chosen by the people, to whom those powers are specially delegated.  [In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219; Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627." Black's Law Dictionary, Fifth Edition, p. 626.]

26.  The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.  [California Constitution, Article 3, Sec. 1.]

27.  This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  [Constitution for the United States of America, Article VI, Clause 2.]

28.  COURT.  The person and suit of the sovereign; the place where the sovereign sojourns with his regal retinue, wherever that may be.  [Black's Law Dictionary, 5th Edition, page 318.]

29.  COURT.  An agency of the sovereign created by it directly or indirectly under its authority, consisting of one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of the law, authorized to exercise its powers in the course of law at times and places previously determined by lawful authority.  [Isbill v. Stovall, Tex.Civ.App., 92 S.W.2d 1067, 1070; Black's Law Dictionary, 4th Edition, page 425]

30.  COURT OF RECORD.  To be a court of record a court must have four characteristics, and may have a fifth.  They are:

A.  A judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it [Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J.  See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689][Black's Law Dictionary, 4th Ed., 425, 426]

B.  Proceeding according to the course of common law [Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J.  See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689][Black's Law Dictionary, 4th Ed., 425, 426]

C.  Its acts and judicial proceedings are enrolled, or recorded, for a perpetual memory and testimony.  [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231]

D.  Has power to fine or imprison for contempt.  [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231.][Black's Law Dictionary, 4th Ed., 425, 426]

E.  Generally possesses a seal.  [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231.][Black's Law Dictionary, 4th Ed., 425, 426]

31.  The following persons are magistrates:  ...The judges of the superior courts....  [California Penal Code, Sec. 808.]

32.  ...our justices, sheriffs, mayors, and other ministers, which under us have the laws of our land to guide, shall allow the said charters pleaded before them in judgement in all their points, that is to wit, the Great Charter as the common law....  [Confirmatio Cartarum, November 5, 1297" "Sources of Our Liberties" Edited by Richard L. Perry, American Bar Foundation.]

33.  Henceforth the writ which is called Praecipe shall not be served on any one for any holding so as to cause a free man to lose his court.  Magna Carta, Article 34.

34.  CCP 1209.  (a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:
		. . .
		3. Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person [e.g. a judge or magistrate], appointed or elected to perform a judicial or ministerial service;
		4. Abuse of the process or proceedings of the court, or falsely pretending to act under authority of an order or process of the court;
		5. Disobedience of any lawful judgment, order, or process of the court; 
		. . .
		8. Any other unlawful interference with the process or proceedings of a court;
		. . .
		11. Disobedience by an inferior tribunal, magistrate, or officer, of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is removed from the jurisdiction of such inferior tribunal, magistrate, or officer.

35.  CCP 1211.  (a) When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.
   When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers. ...

II.  
Findings of Fact, Discussion, and 
Conclusions of Law

36.  The record shows that the above-entitled court of record, located at 111 North Hill Street, Los Angeles, California, the Honorable Joseph R. Kalin presided over a hearing on January 10, 2005, in Department 30, for the purpose of considering the demurrer of counterdefendants John Wiley, Mark Arnold, Laura Ellison and Thomas Sokolov.

37.  Counterplaintiff Aurora Bautista Quicho was not present but appeared by pleading; Deputy Attorney General Kenneth G. Lake appeared on behalf of counterdefendants John Shepard Wiley Jr., Mark S. Arnold, Laura C. Ellison, and Thomas R. Sokolov.

38.  The record shows (Reporter’s Transcript (hereinafter “RT”), Page 1) that the magistrate did not conduct the hearing in accordance with the foundation rules of a court of record.  Instead, the magistrate conducted himself as a tribunal in his own court on his own authority (RT Page 1, Lines 19, 22 and 23), without concurrence of all parties and without any supporting authorization from the court.  He became a loose cannon acting as a tribunal and imposing his own rules.  Without proper authority, the magistrate stepped out of his function as a magistrate and assumed a de facto cloak of a tribunal while sitting as a magistrate.

39.  The genius of a court of record is not to be undermined.  It is the birthright of every American to settle issues in a court of record, if he so chooses.  That choice has been made in this matter, and has been so stated in the first paragraph of the action.  Further, Article 6, Section 1 of the Constitution for the State of California mandates that all courts of California are courts of record.

40.  The magistrate is a person appointed or elected to perform ministerial service in a court of record because all judicial functions in a court of record are reserved to the tribunal, which must be independent of the magistrate.

41.  The magistrate of this court has usurped the independent powers of the tribunal of this court of record by making, under color of law, discretionary judgments which are reserved to and should have been made by the tribunal independently of the person of the magistrate designated generally to hold it.

42.  On November 5, 2004, Aurora Bautista Quicho filed a counterclaim consisting of an Action of Trespass and Trespass on the Case for Damages.  The opening sentence decreed, "Aurora Bautista Quicho is one of the people of California and in this court of record..."  In counterdefendant's demurrer there is no objection to counterplaintiff as one of the people of California.  Nor is there any objection to the court being a court of record.  Nowhere in the record is there any objection from magistrate or counterdefendants regarding this court being a court of record.  Further, all parties were properly apprised of counterplaintiff’s status and the nature of the court in the counterclaim.  

43.  It is the design of our systems of jurisprudence that courts have no jurisdiction until a party comes forth and declares a cause needing resolution.  The particular jurisdiction depends upon how the cause is declared by the plaintiff.  Jurisdiction may be administrative, at law, in equity, or in any of many other formats.  In this case the jurisdiction is at law in a court of record under the sovereign authority of one of the people.

44.  It is essential to understand what are a sovereign, a magistrate, a court, and a court of record.

45.  A court is "The person and suit of the sovereign."

46.  Who is the sovereign?  It is the people either in plural or in singular capacity.  In singular capacity, in this case, it is Aurora Bautista Quicho, one of the people as contemplated in the preambles of the 1849 Constitution for California, the 1879 Constitution for the State of California, and the 1789 Constitution for the United States of America.

47.  California, the State of California, and the United States of America have no general sovereignty.  Theirs is a clipped sovereignty.  Whatever sovereignty they have is limited to their respective constitutionally defined spheres of control.  The general sovereignty is reserved to the people without diminishment.  Lest that be forgotten, the California Government Code twice admonishes the public servants that, "The people of this state do not yield their sovereignty to the agencies which serve them."  Further, when the State of California did attempt to diminish one's rights, it was determined that the state cannot diminish rights of the people.

48.  It is by the prerogative of the sovereign whether and how a court is authorized to proceed.  In this case, the chosen form of the court is that of a court of record.  

49.  A qualifying feature of a court of record is that the tribunal is independent of the magistrate appointed to conduct the proceedings.

50.  The magistrate is a person appointed or elected to perform ministerial service in a court of record.  His service is ministerial because all judicial functions in a court of record are reserved to the tribunal, and, by definition of a court of record, that tribunal must be independent of the magistrate.  The non-judicial functions are "ministerial" because they are absolute, certain and imperative, involving merely execution of specific duties arising from fixed and designated facts. 

51.  California Code of Civil Procedure, Section 1209 provides that acts in respect to a court's proceedings are contempts of the authority of the court if a person who is appointed or elected to perform a ministerial service misbehaves, neglects, or violates a duty; or if a person falsely pretends to act under authority of an order or process of the court; or if a person disobeys any lawful judgment, order or process of the court, engages in any other unlawful interference with the process or proceedings of a court; or if an inferior magistrate interferes with the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is removed from the jurisdiction of such inferior magistrate.

52.  The magistrate holds only ministerial authority.  He holds no tribunal authority and cannot in any way substitute himself as the total equivalent of the court to thus exempt himself from jurisdiction.  CCP 1209 provides that contempt may be applied to "Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service;" The magistrate, is an "other person, appointed or elected to perform a ... ministerial service" as described in CCP Section 1209. 

53.  Depriving anyone of the right to have his day in court is very serious.  The magistrate has a duty to the plaintiff to minister the opportunity to argue the petition put forth to the court.  "He who decides a case with the other side unheard, though he decide justly, is himself unjust."  To summarily ignore an objection that has been presented to the court constitutes a direct challenge to the court's authority, especially when the magistrate's judicial jurisdiction is estopped and he tacitly declines a fair opportunity to show cause why he should not be subject to estoppel.

54.  Throughout the transcript, there shows that the rules of the court of record were not followed, that the magistrate attempted to function as a tribunal, and that the court was ineffective in furthering the goal of justice for all.  These failures to follow the prescribed procedures are sufficiently disruptive to the goal of providing fair justice that the court finds it necessary to issue a writ of error quae coram nobis residant as follows:

III
Impeachment and Writ

55.  THE COURT, HAVING REVIEWED THE FACTS, THE RECORD, AND THE PROCESS BY WHICH THE RULING WAS ISSUED, and finding that the magistrate rendered and wrote rulings without leave of court; and finding that the orderly decorum of the court was replaced by defective impromptu process and usurpation of legislative and court powers without leave of court,

56.  And, finding that the clerk of the court improperly accepted for filing an order from the magistrate without leave of court, 

57.  And, desiring that fair justice be served for all parties, counterdefendants as well as counterplaintiff,

58.  NOW THEREFORE, THE COURT issues this WRIT OF ERROR QUAE CORAM NOBIS RESIDANT, to wit:

59.  The court impeaches and rescinds the order entitled ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND AND DISMISSING DEFENDANTS JOHN WILEY, MARK ARNOLD, LAURA ELLISON AND THOMAS SOKOLOV and filed February 4, 2005., and a copy of the first page of which is attached to this writ.

60.  Further, the magistrate, counterplaintiff, and counter-defendants are each invited to file and serve on all other interested parties and magistrate a brief no later than April 24, 2005 to show cause to this court why this order should not take effect or should be modified.  Unless requested, there will be no oral argument.  The court, mindful of the rights of the parties and the importance of fair play, will liberally construe the written arguments presented.

THE COURT

WITNESS:  the SEAL of the COURT this 4th day of April, 2005

______________________________
Aurora Bautista Quicho
Attornatus Privatus