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,      ) 
                                    ) RULING ON DEMURRER OF
             v.                     ) COUNTERDEFENDANTS
                                    ) Wiley, Arnold, Ellison, and
THE PEOPLE OF THE STATE OF          ) Sokolov;
CALIFORNIA, et al.                  ) ORDER TO SHOW CAUSE
                                    ) 
              Counterdefendants.    ) 
                                    ) 
------------------------------------)----------------------------

TO COUNTERDEFENDANTS WILEY, ARNOLD, ELLISON, AND SOKOLOV:

1.  PLEASE TAKE NOTICE that on January 10, 2005 the hearing on the demurrer of counterdefendants John Shepard Wiley Jr., Mark S. Arnold, Laura C. Ellison, and Thomas R. Sokolov (hereinafter “defendants”), to counterplaintiff's counterclaim, came on regularly for hearing in Department 30 of the above entitled court, located at 111 N. Hill Street, Room 400, Los Angeles, California, the Honorable Magistrate Joseph R. Kaplin, presiding.

2.  Counterplaintiff Aurora Bauatista Quicho (hereinafter “plaintiff”), who is in the custody of defendants Wiley and Ellison, did not appear.  A Deputy Attorney General appeared on behalf of defendants John Shepard Wiley Jr., Mark S. Arnold, Laura C. Ellison, and Thomas R. Sokolov.

I

JUDICIAL COGNIZANCE

3.  This court takes judicial cognizance and decrees as follows:

4.  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.]

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

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

7.  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]

8.  ...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.]

9.  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.]

10.  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.]

11.  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.

12.  ....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.]

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

14.  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.]

15.  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.]

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

17.  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.]

18.  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.]

19.  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.]

20.  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.]

21.  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.]

22.  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]

23.  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]

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

25.  ...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.]

26.  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.

27.  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.
28.  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

CONCLUSIONS OF LAW

29.  THIS COURT MAKES THE FOLLOWING CONCLUSIONS OF LAW:

30.  Plaintiff Aurora Bautista Quicho is a people of California.

35.  This above-entitled court is a court of record in name and function, namely proceeding according to the course of common law with a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it

III

DICTA

31.  The question before the court is not whether the acts were committed by the defendants (for they do not deny their actions), but whether they have judicial immunity from common law suits when their actions go beyond the constitutional limits or beyond the authority of their office.

32.  A review of the case law and ancient legal principles shows this court that, indeed, there is ample precedent for judicial immunity.  Tagliava states the concept well:  The rule is based on a “general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself.”

33.  But, it is also a well established principle that judicial immunity does not extend to a person not a judicial officer, nor to a person who is exercising judicial functions outside the umbra of a properly constituted court with a properly established jurisdiction.

34.  So, the question hinges on a single point:  Were the acts of the defendants within the umbra of a properly constituted court with a properly established jurisdiction?  If yes, then the demurrer must be granted.  If no, the demurrer must be denied.

35.  Because “The sovereignty of the state resides in the people thereof...” the State of California has no direct sovereignty of its own.  It has a clipped sovereignty delegated by the people through the Constitution to the State. 

36.  Who is the sovereign? It is the people either in plural or in singular capacity. In singular capacity, in this case, it is William Jones, 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.

37.  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.

38.   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.

39.  The people of this state do not yield their sovereignty to the agencies which serve them.  For that reason the magistrates of the State of California can only acquire jurisdiction over the people of California if said people voluntarily grant such jurisdiction to the state.  The record clearly shows, and the defendants admit, that Aurora Bautista Quicho never voluntarily yielded her sovereignty to the defendants and their private court.  It logically follows that defendants do not have lawful jurisdiction over the plaintiff.

40.  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.  Without a voluntary yielding of her sovereignty, defendants at no time acquired unimpeachable jurisdiction to act against the sovereignty of the state.  The record shows evidence of a want of jurisdiction in the defendants (aka judicial officers).   Because defendants are required to take an oath of office, and because of their acts, one could almost conclude that the defendants committed treason against the state and the sovereignty of the state.  However, treason is not an issue before this court, and this court does not so conclude.

41.  The sovereignty of the people orginates thus:  ...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.....

42.  Sovereignty is recognized thus:  The very meaning of 'sovereignty' is that the decree of the sovereign makes law.

43.  The natural rights of any sovereign are thusly recognized:  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.

44.  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.  His judges are the mirror by which the king's image is reflected.  That precedent alone prohibits any magistrate from dismissing a sovereign plaintiff’s case.  A magistrate who acts without the permission of the sovereign is not the mirror of the sovereign.

45.  The State of California recognizes its limitations.  Specifically, the California Constitution states, “....This declaration of rights may not be construed to impair or deny others retained by the people.”

46.  That is further recognized by the Federal courts:  “The state cannot diminish rights of the people.”  Denying the sovereignty of the plaintiff is a diminishment of the rights of /the people.

47.  The same principle applies to local practice:  “The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.”

48.  Further, “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”

49.  Further, There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights.

50.  The roots of the people’s sovereign immunity against the state lies in the organization of the State:  a Republic.  This is recognized by the Federal Congress which said, “Whereas, the people of California have presented a constitution....and which, on due examination, is found to be republican in its form of government....”

51.  A Republican form of government is, “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.”

52.  A court is, “The person and suit of the sovereign; the place where the sovereign sojourns with his regal retinue, wherever that may be.”  Further, it is, “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.”

53.  This court is a 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.

B.  Proceeding according to the course of common law 

C.  Its acts and judicial proceedings are enrolled, or recorded, for a perpetual memory and testimony.

D.  Has power to fine or imprison for contempt.

E.  Generally possesses a seal.

54.  The court of a people many not be denied to him.

55.  The following persons are magistrates:  ...The judges of the superior courts....  

56.  Any attempt to deprive the sovereign of his court may be a contempt of court.

57.  The 1879 Constitution for the State of California mandates that the Superior Courts of California are courts of record.

58.  To be a court of record requires more than a name.  The court must also act as a court of record.  The record shows that the defendants were not acting as a court of record on two counts.  First, they were not proceeding according to the common law.  Second, the tribunal was not independent of the magistrate who was conducting the proceeding.

59.  Further, the record shows and defendants admit they did not acquire the voluntary yielding of sovereignty from the plaintiff, a people of California.  Rather, they rode roughshod over the plaintiff’s objections to their jurisdiction without even bothering to acknowledge the objections or to come to any relevent conclusion.  Thus, any prosecution of a people of California by the public servants must necessarily be found to be without jurisdiction.

IV

DECISION

60.  FOR THE ABOVE STATED REASONS, THE COURT FINDS that the demurrer is without merit.  For purposes of determining defendants’ demurrer, this above-entitled court finds that the defendants do not have judicial immunity.  This finding applies only to this decision regarding defendants’ demurrer.  The court will revisit the issues before final judgment

61.  FURTHER, THE COURT ORDERS THAT the defendants need not file an answer to plaintiff’s counterclaim.  Their demurrer will serve as their answer.

62.  FURTHER, THE COURT ORDERS that the defendants may show cause within 15 days of the date of this order why this order is not valid, if that it may be.

		THE COURT

by_____________________________
Aurora Bautista Quicho
Attornatus Privatus