David Stevenson from Advocate and Associates.
Comments on Habeas Corpus
(With excerpts from other Right Way Members)
Right Way … l.a.w.  Washington Seminar, January30 & 31, and February 1, 1998.
One of our companies owned some cars that were licensed out of the country.  My wife got stopped in one of the company cars and they wanted to charge her with illegally registering a car out of the country to avoid the taxes.  They charged her with criminal misdemeanor.  We did a Refusal for Fraud and a Demand for Bill of Particulars which froze things up for about three days because the Clerk did not know what to do with those instruments.  We went on with the procedure and filed defaults when the documents were not responded to.  The Court  did not recognize or do anything about the Demand for Bill of Particulars.  
Someone told me that he was able to beat traffic tickets with the writ of Habeas.  My background says that the writ of Habeas was for while you were in jail.  I could not find the guy so I did some research and found that the writ of Habeas Corpus has absolutely nothing to do with incarceration.  There is a provision in Black’s Law for the Habeas, they call it the great writ of liberty.  That is a key phrase.  It has to do purely with liberty.  Incarceration could be a part of it, but the Habeas Corpus can be used for about five hundred issues, one of which is incarceration.  It is the main tool for collateral attack.  It is also the main tool for judicial review.  
It is a law suit.  It is not a three of four page document, it is a full scale civil law suit.  Once we realized what it was we did the petition, filed it, got it going and then found out we had one of two options to get it signed.  They are signed by the Clerk of the given Court, in this state the Superior Court, the Court of Appeals or the Supreme Court.   Mr.  Schramm said it best, he went to the Clerk of Courts and got it signed, that is who signs them always.  Or you can take it to the Judge getting an order to get the Clerk to sign it, your option. Preferably the Clerk. (In some states the statutes require an order from the Judge ordering the Clerk to issue the writ.) We first took ours to the Magistrate who sent us to see the Judge.  The Judge said no, the Magistrate signs it.  We went to a second Magistrate who told us they only issue those for domestic disputes for child custody issues.  We took it back to the Superior Court.  So we went back to the Commissioner at the Superior Court and he said he did not want to sign it that would discharge you from the proceedings.
The writ of Habeas Corpus does not discharge anything, it creates a hearing so you can prosecute the opponent to determine the nature and cause of the restraint of your liberty.  The exact verbiage in the state law is “Any person can prosecute a writ of Habeas Corpus if he feels his liberty is being restrained under any pretense whatsoever.  If it is found to be illegal he is to be discharged from the restraint.  That is pretty broad.  
We could not get is signed so we took it to the state Supreme Court on a writ of mandamus and they asked me to file on all the parties, so we did.  Each time we went to court my wife was nervous and could not get a handle.  Then, all of a sudden somebody turned on the light.  She is sitting in court on trial day and the Judge has in front of him a notice that we filed of the Habeas Corpus petition and writ of mandamus.  He is sitting there kind of nervous.  He said you have this writ of Habeas Corpus going.  I thought that was only for being in jail.  My wife all of a sudden pops up and says that is true, that is traditionally what it is for, but it is for when my liberty is being restrained and you restrained my liberty and I am going to find out why you are doing it.  
The Judge said, Mr. Prosecutor what do you want to do about this.  Well, we could continue it until they get done.  The Judge asked my wife, How long do you want it to go, and she said well it is your court and its your process, you know how long it usually takes how long do you think it will take? He turned to the prosecutor and says how about two or three months.  She said well why don’t we make it a nice Christmas present we will do it on December 1st.  
We have delayed this thing four weeks already.  We went that Friday to see a judge to sign it so we could get the hearing set.  All the writ does is force the opponent to come to court with the evidence and to show the nature and cause of the restraint of your liberties, whatever that might be.  The Judge said I don’t think I have to sign that because I have here in front of me an order from the court you came from that they dismissed your case with prejudice.  Can we see that?  He showed that to us and we said I think this is a moot issue and we thanked him very much and left.  Low and behold this state does know what the writ of Habeas Corpus is … what they are gambling on is that you do not know.
It is not what you think it is.  It is to challenge the opposing sides restraint of your liberty.  How it works is a full law suit, just like a civil suit.  What we do is a petition which is like a complaint, only for Habeas the law says to make it a valid complaint you have to state who the opposing party is, who is restraining your liberty; how they are restraining your liberty, why you believe it is illegal, and where they are restraining your liberties at.  You sign it and give it to the court.  Then you attach a writ of praecipe on top of the actual writ and serve it on the court telling the Clerk to sign it, they will generally sign it.  I attached the full body of the questions in my Demand for Bill of Particulars to the writ to have them sign it, that is what caused them to dismiss my case so fast.  They knew what the questions were.
Now you have taken your administrative Demand for Bill of Particulars and turned it into a judicial Demand for Bill of Particulars under a court order.  Since they would not sign it administratively I found out that I could use the writ of Habeas Corpus to compel submitting the Bill of Particulars and it has been working very nicely.  
The end result is they beat me to court by half an hour to keep that writ from being signed.  They knew it was going to be signed because I went to the trouble of going to the Supreme Court to possibly issue a writ of mandamus compelling the Judge to sign the order issuing the writ so I could prosecute the case.  
Member Clarity adds to this dissertation that most people think the writ is granted when the Judge hears the case and the prisoner is released or sent back to jail. That is not true, the writ is granted immediately. In England, the Chancellor granted the King’s prerogative when he sealed the writ so it could be heard in the King’s court. That is the same thing today. Today the writ is presented for immediate filing. To complete the process the Judge signs the writ, service is done, and the return of service is made. That is the writ. Upon granting the writ an action follows whereby the prisoner is brought before the court, and the respondent is required to show cause as to why he is holding the prisoner. 
The return of the writ is a written answer to the habeas filed by the Respondents, just like in every civil suit. In most cases you can get an immediate hearing, or a hearing within a couple of days. The Judges and attorneys will always try to convince you that is a habeas corpus hearing. It is not. It is only a hearing to see if the writ should issue. The only thing they can look at is if the habeas is sufficient on its face. If you participate on the merits of the habeas, you agree to the procedure and waive the writ. 
Member Mark explained that when the prisoner is brought to the court, the first thing out of his mouth should be, “Can I see the return on the writ of habeas corpus?” If there is no return, there is no writ, and the hearing is actually some other procedure. 
Clarity an avid researcher, helps to understand the history of the Writ of Habeas Corpus and why they work. In Black’s Law Dictionary 6th Edition prerogative means an exclusive or peculiar right or privilege. The special power, privilege, immunity, right or advantage vested in an official person, whether generally, or in respect to the things of his office, or in an official body, as a court or legislature. In England the King had the prerogative. In America it is the people’s prerogative. Under prerogative writ Black’s says that such writs have been abolished in the federal and most state courts with the adoption of the Rules of Civil Procedure.  One of the prerogative writs that have been abolished is the Writ of Habeas Corpus. Clarity found those definitions very interesting since the Missouri Constitution states the privilege of the Writ of Habeas Corpus shall never be suspended. Notice is does not say the writ shall not be suspended, it is saying the privilege shall not be suspended. Now it is important to understand what privilege they are talking about.
Clarity suggests that members read Blackstone’s Commentaries on original writs and habeas corpus. Don’t stop there though, he feels members need to go back even farther than that to some of the older books to get a full understanding of the situation. Clarity found a book at a sale called Cases on Common Law Pleadings by Charles Keigwin, 1934, Sixth Edition. This book goes back prior to the Battle of Hastings in 1066.  In the first fifteen pages is an excellent summary on how the powers and rights of the judiciary resided in the people at large and were usurped by the King. The prerogative became the King’s. Time to get this straitened around. If the original writ system never existed in America, why do we have to petition for the writ? If the prerogative is with the people why would we have to petition? If the people don’t understand the principles of the original writ way back in its earliest beginnings, pre Blackstone, they cannot understand the remedy. 
In England there were two phases, historically speaking, of what was known as original writs. An original writ in England was made by an application to the King’s Chancellor who was the keeper of the seal. He would create a writ in the King’s name. That Writ gave the King’s Judges authority to hear a suit upon the King’s privilege. That is where the privilege comes from. Remember, the Missouri Constitution says the privilege shall not be suspended.  
Here in the United States when a common law term is used in a Constitution it is interpreted in the common law sense. The United States never had a remedy called an original writ. There is no system for it established here. Coming forward in time … about 1900, the courts started issuing a rule nisi. In those rules the court ordered a respondent in a prerogative writ proceeding to show cause why the writ should not be granted. Under the common law writ of Habeas Corpus, the writ was granted before any hearings could be had. Remember that it was permission to challenge the King’s suit. Now it is backwards.
The premise of the writ was to bring the respondent before the court to determine the legality of the imprisonment. Then the court could relieve the prisoner by way of a separate order or remand him back to the Sheriff. Now litigants are required to sue on a separate civil suit, which has to be won against heavily weighted odds before a substitute for the writ will issue. That is how both the privilege and the writ itself have been suspended, abolished, superceded. When the King's Chancellor fails to issue the writ prior to a show cause hearing by the respondent, he has suspended the privilege of the writ. That is what is protected!
In Mark’s court experience there is much to learn about the procedure of habeas corpus. When Mark does a habeas he puts the Petition, an order for allowance of the writ, and the writ itself all together. He takes this to any state court Judge and presents it to him to issue the writ. It is mandatory that the Judge issue the writ if your petition is in order. If he refuses, Mark files the instruments with the clerk. Mark explains that you can take it to the courthouse and find a Judge, or if that is not possible, go to his house, at the market place, or wherever you may find him. 
Mark recounts an experience he had with his friend Jim. They took a Petition to the county courthouse at approximately 1:00p.m., and as luck would have it, met the Chief Circuit Judge in the hallway as they arrived. Jim proffered the Petition to him and asked him to take a look at it, explaining what it was. The judge refused to even take it, and told Jim to file it with the Clerk. Jim did this, paid the filing fee leaving three copies with the clerk, then went into the hallway to wait. He checked with the Clerk from time to time with no results. At about 3:00 p.m., on regular lined notebook paper they made an affidavit that the writ was filed and did not issue. They made two copies and filed the original with the Clerk. Jim told the Clerk he was going to go file the writ in another county and left. 
When he got home Jim realized that he did not get a copy for himself so he quickly went back to the court. He arrived at approximately 4:30 p.m. and lo-and-behold there was the writ! It was signed, sealed and ready for delivery. Jim and Mark took the writ to the Sheriff to do service. The Sheriff was gone so they left it with the Deputy. Mark warns that it is critical to read the details in your statutes concerning service of the writ, and to follow these to the “t”. In Wisconsin statutes read sections: 782.13 Return to writ, 782.14 Return, what to state, 782.16 Obedience to writ compelled (which states that if any person refuses to obey the writ without sufficient excuse the sheriff shall be commanded to apprehend such person and bring him before the court. That person shall be committed to the county jail until making the return), and 782.17 Attachment of Sheriff, (If a sheriff neglects to make return the coroner or other delegated person may be committed tot he jail). I am sure that most states will have similar provisions. If you do not find them in the state statutes then look to the state constitution or rules of court. Now the fun begins! 
The prisoner must understand that he is the prosecutor. You can bet the district attorney will be there when you get your hearing even though he is not a party to the action and has no business being there. He will be seated at your table to boot. This is where you can have some real fun. Though you’ll be in handcuffs and full restraints, walk over to the district attorney and tell him, “excuse me, but you are sitting at my table. I don’t believe you are a party to this case. Why are you here?” Should be lots of fun. 
When Jim and Mark first did the procedure, it was for Jim’s wife. She knew the least about the procedure and because she was in jail they had little time to brief her. She did quite well, especially against the district attorney who was doing his best to turn the proceedings into a bail hearing. Every time she would try to talk, he would cut her off. Between badgering her and taking time out to warn (threaten) Jim and myself who were trying to coach and prompt her from outside the bar, the hearing lasted about 25 to 30 minutes. Finally Jim’s wife asked to see the return to the writ. The Judge about choked, spitting and sputtering he declared he was going to postpone the proceedings. As Jim’s wife tried to object he banged his wooden gavel and was gone! The deputy whisked her away and back to jail, and Jim and Mark stood there wondering what happened. 
In less than an hour she was out of jail and they knew they hit the bulls-eye. That was a year ago, and there has been no attempt to prosecute her since. 
According to Maier v. Byrnes, 121 Wis.2d 258, Judges can be sued in a small claims action for $1,000 for refusing to grant the writ of habeas corpus. As you heard from Clarity and Mark granting the writ does not mean adjudicating the case, it means signing the application or petition, and making return thereon. This is ministerial and must be done. 
It is Mark’s opinion that the courts will not suspend the privilege of the writ by refusing to issue the writ and do service. Mark says that if the court does not issue the writ and do service the petitioner has waived it! The only time that there is truly an issue as to suspension of the privilege of the writ is if the court refuses to file the writ without a fee, then they have suspended it, otherwise it is waived. Mark believes that if you are persistent you will get the writ issued. The problem is when there is no return of the writ.
Clarity and others in this article mentioned Crandall v. Nevada. Nevada was trying to put a tax on passengers who were traveling the Railroads. The U.S. Supreme court said that Nevada could not tax passengers because everybody has a right to travel to the seat of their government to petition the government for redress of grievances. That is the spirit of the case. 	
Once you understand that case and the nature of the true writ of habeas corpus, you will understand there can be no fee required up front for the writ. 
David warns that some courts have written a special rule in their rules of appellate procedure that if you initiate an action in the appellate court or the Supreme Court it is converted to a personal restraint petition.  The prosecuting attorney will then attempt to say we changed that to a PRP and you have a different procedure.  If you go to RAP Rule 16.3(b) second paragraph last sentence, The RAP rules regarding PRP do not apply to writs of Habeas Corpus initiated in the Superior Court of Washington, it is a full writ.  It is a full law suit.  Treat it like a law suit, pay your fees, if you cannot pay the fee use a forma pauperis form.  
You are entitled to prosecute it unless, as the constitution says, this country is in the state of insurrection and rebellion.  It is absolute and if the Clerk does not sign within 48 hours I recommend sending it to the Supreme Court.  
The writ of Habeas Corpus, bring forth the corpus delecti, the dead body, the victim.  Who did I victimize, who is the complaining party.  That is who they are supposed to bring to court.  Not you, but your accuser.  You are supposed to be able to face your accuser under the writ of Habeas Corpus to determine the nature and cause of the restraint of your liberties.  
If you do not have the damaged party before the court then you don’t have the cause.  The nature is going to determine venue, jurisdiction, etc.  Restriction on your liberty includes forcing you to go to court, forcing you to post bond, etc.  Show me the damaged party.   
The Habeas challenges the assertion that everything they did was correct.  It is the command tool for initiating a collateral attack on any proceeding administrative or judicial.  In Washington law you will find the instructions for initiating a collateral attack on judicial or administrative action and the first thing in there is a writ of Habeas Corpus.  So obviously it has nothing to do with incarceration.  You will also see Habeas as one of the statutory tools for judicial review.  It is a judicial action to initiate the demand for the nature and cause of the restraint of your personal liberties whatever they may be.  
Most of us don’t know what their liberties are so if you go to Black’s you will see about a page and a half listing your liberties.  That way you  will know when you are being compromised and when the writ should be imposed.  
Under U.S.  law you do not impose a writ of Habeas Corpus until you have exhausted administrative remedies.  Do the Refusal for Fraud, the Demand for Bill of Particulars, the Fault and Default.  Then if you do not get any action go ahead and proceed with the Habeas Corpus.  
When you are incarcerated it seems to pop you out like magic because they do not want to go to court to answer your questions.  But when you ask them to produce proof that they have the nature and cause, the legal right to restrain your liberties, make sure you are the one asking the questions and make them detailed so they do not come up with any old thing to answer that writ.  I have 140 questions I ask them on the writ that they must answer and it is mandatory.  
They try to ship you out of the state before the writ is moving if you are acting on it.  That is illegal, they can arrest the Sheriff for failing to keep you under control and get you into court.  You don’t have to personally file your own writ.  Anybody in the state can file a petition for writ of Habeas Corpus for anyone else.  You can get everything moving, you cannot prosecute it in court for the petitioner, but the individual can initiate it for anyone else.  You do not have to have it signed by the prisoner.  
Pay the Fee.  File the Cover sheet.  It is just like a formal civil law suit because that is what it is.  The only difference is that it does not start with the complaint it starts with the filing of the writ by the clerk.  A writ of praecipe instructs the clerk to issue the writ.  It is not discretionary for the clerk to issue it, she has no choice.  Once you initiate the petition the clerk has to issue it and you take it to the sheriff who serves it for you.  Once it goes out it is up and running.  The prosecutors do not want to answer the questions so they will do everything they can to get it dismissed.  
In some states you must go to the Judge for him to sign an order, ordering the Clerk to issue the Writ.  Whether you go to a Judge or a Clerk they must issue the writ if you have all the required criteria. Your state statutes will give you a set of criteria: the writ must be verified, must contain the name of the Petitioner, the respondent, their mailing locations, etc. If all the criteria is met, there is no discretion in issuing the writ.
It is for three purposes, to get determination, to get disclosure of the nature and cause of the restraint of your liberty, for collateral attack on an administrative or judicial action, and filing for judicial review.  
List everyone who is involved in restraining your liberty.  They are all defendants and they are all required to answer, they all have to make a return on the writ once they have service.  The only thing they can do to get out of the suit is to free you from the restraint of your liberty prior to the Habeas.  Then the issue is moot and the Habeas will be dropped. Otherwise they have to come to court and you get to prosecute.  You get to call witnesses or do anything you have to do to forcibly extract the nature and cause of your liberties.  
The ultimate conclusion of the writ of Habeas Corpus is to be discharged from the proceedings.  That would be evidence that you were injured and you would take up damages in another law suit.  The only issue is the unlawful restraint of liberties.  Do not incorporate damages.  Once the writ has been fulfilled and you have gone to court and you prevail, the order is going to come down as a directive from the judge to the restraining party to discharge the petitioner from the restraint.
If the state suspends the writ by the clerk refusing to sign the writ or the judge refusing to order her to do so, then it has been suspended.  Personally serve an affidavit on that Clerk or Judge. Attach the affidavit to the Petition and take it to the next highest court. When you have exhausted the Appeals Court, the State Supreme Court, and the Federal District Court send the writ of Habeas Corpus petition and the writ itself to Judge Rehnquist for issuance.  If you do it right he should not send them back to you.  
It is in the wording.  Judge Rehnquist and all the Judges of the Supreme Court are required to issue the order for the Clerk to issue the Habeas.  Judges are not the signing party the Clerks are and if you asked the Judge to sign it you have erred.  You may want to send it to the Clerk of the Court rather than Rehnquist.  
The forms from American Jurisprudence show a section for the Judge to sign and the Clerk to sign.  Just like them to send us astray.  That form may be perfectly legal, but it implies you need the Judge’s signature and the Clerks.  You only need the Clerks.  
The writ of Habeas Corpus can also be used as evidence as Rick was leading to.  Once you have determined that the restraint of your liberty was not lawful, the official who restrained you steps out of his immunity.  He has failed to prevent an illegal act and now you have him.  This is the best tool I have ever seen to get the evidence you need to commence a civil action for damages.  It formally presents a situation, is the public servant acting within or without the delegation of authority.  If he is without he will not prevail.  Since they all run for cover, it is a good guess they are not acting within the scope of their authority.  
You can use it if you are thrown out of your house and have lost the liberty to use your house.  If you are restrained from doing something to your property without a zoning permit, that is restraint of your liberty.  Use the Habeas.  You don’t have to go to jail.  You still have to exhaust your administrative remedy.  The Habeas is merely a judicial form of your Demand for Bill of Particulars.  On a garnishment you would be denied your liberty to contract without impairment.  
When the Clerk issues the writ she will set a hearing where you will prosecute the case.  You are the prosecutor.  If there is a prosecutor involved he becomes the defendant and you are the prosecutor.  
If you go to American Jurisprudence you will find a check sheet for the elements that have to be in there.  Use that to make sure your petition is sufficient.  The clerk does not have to take it if it is fatally flawed.  The State laws fixed that by stating that even if the writ is flawed it must issue as long as it is clear to whom it is to be directed.  
Many times the Judges will try to trip you up by holding a hearing to see if the writ should issue.  You better know this before you file.  If there is a hearing, the only issue could be, “Is the Petition sufficient?” If you argue any of the merits of the case your Petition is being heard. Are all the parties there? Have you served subpoena duces tacems? How can you hold a show cause hearing by yourself?
If a trust is formulated properly, the trust and the trustees are two separate players.  The constitution allows you the person a right to the Habeas, the state statute guarantees entities that right too.  Remember persons are defined as entities.  The entity can do this too.  
As fast as you move you will have your remedy.  Beat them to the punch.
Summonses – from the time it starts you have 30 days to act
Refusal for Fraud - Day two
Demand for Bill of Particulars - Day two or three
Fault - Day thirteen
Default – Day sixteen
Administrative filing – Day eighteen
Habeas and writ of praecipe to clerk to issue – Day eighteen
Writ signed and ready to serve - Day twenty 
(ten days to spare until they have you in court --  you have them in court)
You are now the prosecutor and they are the defendant and you have not yet seen the court room.  If they get that writ in their possession and they feel it is really coming down they will really hustle to get rid of the case.  They would have to be suicidal to answer the questions.  Corrupt people like their houses, cars and life, they are not going to commit suicide.  
Research your states particular procedures so that you do it exactly like it is supposed to be done.  You have to be able to say that the statute says they have to do it that way.  Then you can do a praecipe.  You can only praecipe, or order the clerk to do something she is required to do.  
You only give the clerk for filing the petition itself with all of your evidence attached.  It has to be in affidavit form, or be supported by an affidavit.  You fill out the cover sheet and pay your money, then a Judge is assigned.  Then you file your praecipe with the writ of Habeas Corpus that is about two pages long, and the demand for Bill of Particulars in there for the clerk to sign the writ to issue it.  The clerk is now required to sign it.  Rather than leaving her to her own discretion file the praecipe with her legal description being a part of it, or produce documented proof that writ has been suspended.  That means insurrection and rebellion.   Once the writ issues they will set up a hearing.  
Here is a procedural flow chart for the Habeas.
1.	Take the Petition, the Order for the Writ and the Motion for Immediate Hearing to the State court, either Common Pleas or Appeals for filing.
2.	Demand to see a Judge so that he can immediately sign the Writ, or if that is not required in your state go directly to the Clerk to have her issue the writ. If they will not issue the writ, they have suspended the privilege of the Writ. 
3.	If there is an immediate hearing the litigant must demand to see the Writ signed by the Judge, sealed by the Clerk, and the Return of the Writ. If any one of those things are missing the privilege of the Writ has been suspended.
4.	If at any stage of the proceedings the privilege of the Writ has been suspended make an affidavit stating: 1. The date, time and place that the person filing the Writ went to the court to do the filing. 2. The activity that evidences the suspension of the Writ. (Judge did not sign, Clerk did not file, Return of Service not made) That is all you say in that affidavit. You can include a Notice to the Judge that the privilege of the Writ has been suspended and that he should issue it immediately.
5.	Do not wait for a response to the Affidavit and Notice to the Judge. If at any stage of the proceedings the privilege of the Writ is suspended go to the State Supreme Court and exhaust steps 1-4 with that court.
6.	If both the State Court and the State Supreme Court suspend the privilege of the Writ then send the Petition for Writ of Habeas Corpus, and Order for the Writ, and a Motion for Immediate Hearing by registered return, receipt mail directly to a Judge of the United States Supreme Court with a cover letter that says:
a.	This is an emergency Petition for the Writ of Habeas Corpus.
b.	The State has suspended the privilege of the Writ of Habeas Corpus.
c.	See the Affidavits attached hereto and incorporated herein by reference. (The affidavits to the State Court and the State Supreme Court that shows the privilege of the Writ has been suspended.)
d.	That the Writ is filed in the spirit of the First Amendment to the Constitution and Crandall v. Nevada.
That is the procedure in its entirety. Notice that there are two issues in this filing. One is that the privilege of  the Writ cannot be suspended. The other is that there can be no filing fee. Do not make the filing fee a major issue. It is actually a sub-issue to the main issue – suspension of the privilege of the Writ. In one case, the cover sheet that went to the Supreme Court dealt more with Crandall v. Nevada, and payment of the filling fee, that it did with suspension of the privilege of the Writ. The Supreme Court rightly took that as an invitation to discuss that situation and sent the applicant an form for forma pauperus. The issue is the suspension of the privilege – period! Demand for filing fee is just one more way of suspending the privilege.