Sovereign Citizen Defense: “Not guilty because my name is in all caps”

Pity this poor probation officer. Probationer James Earl Davis (as distinguished from JAMES EARL DAVIS) insisted that if his probation officer sent him another letter, that he would charge the officer $500,000 for each time he used his copyrighted name. Thus, the probation officer should just leave him alone, and not worry about whether he was violating his probation. United States v. Davis, (11th Cir. 2013).

Likewise, it can’t be proper for an unrecognized sovereign, like a county,  to impose taxes on allodial land (absolute ownership of land not subject to any superior). State ex rel. Williamson Cnty. v. Jesus Christ's Church, (Tenn. App. 2011).

As illogical as these arguments may seem, they have been tried and tried, to no avail. The philosophy behind these arguments comes from the “sovereign citizen” movement.

A “sovereign citizen” is sovereign over herself, and subject to no one.

At bottom, a defendant pursuing a sovereign-citizen strategy claims that a federal court has no jurisdiction to try him for the federal crimes with which he is charged. The defendant purports to rely heavily on the Uniform Commercial Code ("UCC"), admiralty laws, and other commercial statutes to argue that, because he has made no contract with the Court or the prosecutor, neither entity can foist any agreement upon him. The criminal code is apparently not one of the groups of statutes whose validity the defendant will acknowledge. Accordingly, the defendant contends that he cannot be found guilty of any violation of federal criminal laws.

The sovereign-citizen defendant typically files lots of rambling, verbose motions and, in court proceedings, will often refuse to respond coherently to even the simplest question posed by the Court. Each question by the judge is volleyed back with a question as to what is the judge's claim and by what authority is the judge even asking a question. When referred to as the defendant or by his name, the defendant will frequently indicate that there is no proof that he is the defendant, but that instead he is a third-party intervenor.

United  States  v.  Perkins, (N.D. Ga. 2013).

A sovereign citizen typically believes that most people have been tricked into becoming “citizens by entering into ‘contracts’ embodied in such documents as birth certificates and social security cards.” Cooper v. United States, (C.C. 2012). The contract creates a legal fiction, an ens legis (a creationof law, like a corporation), which is the person’s name in all capital letters. This “citizen” and her property is then responsible for the national debt and subject to US tax law, etc.

How to Free Oneself from this Oppression

One method of overcoming this ens legis is to file a UCC financing statement naming herself in all caps as the debtor, and her real name (first letter in caps) as the secured party. This doesn’t actually work, of course.

Several regional cases illustrate the frustrating and futile nature of this strategy:

In United States v.  Degaule, 797 F.Supp.2d 1332 (N.D. Ga. 2011), the defendant required officers to fill out questionnaires and sign an oath before speaking with her. The questionnaire sought personal information of the officer, and then affirmations that any information from the defendant would be protected and not used against her, including a promise that the officer would “uphold the U.S. Constitution.”

In Cooper v. United States, (C.C. 2012), the court had great difficulty in determining what a Texas federal inmate was asking for but denied his petition for governmental release of a ship and a $30 billion debt.

In State v. Williams, (Tenn. App. 2012), a criminal defendant argued he had fundamental freedom to travel without license. He argued he couldn’t be convicted of driving on a suspended license as he never had a Tennessee license and didn’t want one. Further, he was “not traveling in commerce” and therefore no state could impose any driving regulations on him. The defendant referred to himself as the "Attorney in Fact" for the "legal fiction" of "Anthony Troy Williams."

In Ralph v. State, (Tenn. Crim. App. 2012), a defendant was appointed counsel but, just before trial, asked the trial court to allow him to proceed pro se. He was allowed to represent himself but appointed counsel was instructed to sit with him during trial (“hybrid representation”). He was then convicted of drug charges and sought to appeal based on ineffective assistance of counsel. The defendant was upset that trial counsel wouldn’t do the things he wanted done. He complained that counsel wouldn’t ask deputies certain questions at trial, even though he could ask them himself. He also complained counsel wouldn’t sign a contract with him. That contract would have required trial counsel to pay the Petitioner $1,000,000 "in silver coins" for every violation of the Petitioner's "civil rights" that the Petitioner felt occurred during the prosecution of this case.

Is this just a trick/ foolish belief, or is there a genuine argument that citizenship and its attendant responsibilities shouldn’t be imposed on us?

Citizen?

In an old Tennessee case, Ford v. Ford, 26 Tenn. 92 (1846), a farmer had bequeathed to his slaves their freedom. The farmer named his two sons as executors. The farmer’s children wanted none of this and even tried to destroy the will. That failing, the executors refused to probate the will. The slaves themselves presented the will to the local court (Washington County, around Johnson City) for probate. In fact, the slaves couldn’t present the will themselves but did it through a “next friend” (a legal way for someone to bring an action for someone who cannot legally do so, like a child or an incapacitated person). The children contested the probate on many grounds including forgery, incapacity on the part of the testator (the maker of the will), and that the slaves as non-citizens had no rights to bring the court action. Nonetheless, a jury found for the slaves that the will was valid. On appeal, the Tennessee Supreme Court found that the slaves had the right to propound the will as “the laws under which he is held as a slave have not and cannot extinguish his high-born nature nor deprive him of many rights which are inherent in man. Thus while he is a slave, he can make a contract for his freedom, which our laws recognize, and he can take a bequest of his freedom, and by the same will he can take personal or real estate.”

            This was kind of amazing at the time, in most situations the slaves would have been screwed – think “12 Years a Slave" or the Scotsboro Boys. After all, the slaves had to find a “next friend” willing to confront local biases, post a bond, and find people in authority willing to listen. All of this in the deep south.

Twelve years later, the Supreme Court of the United States held very differently. In Dred Scott v. Sandford, 60 U.S. 393 (1857), Mr. Scott, a slave, went to court and made a compelling case for his freedom based on his “owner” having lived with him in free states. He was denied in state court based on a technicality and then again based on a politically motivated decision. He appealed his case to the United States Supreme Court. In a 7-2 decision, the Court held that Mr. Scott could not sue in federal court as a negro did not have the “rights, and privileges, and immunities” granted to citizens” including the right to bring suit.

In a recent case, Lucas v. Jerusalem Cafe, LLC, (8th Cir. 2013), a restaurant owner was sued by some of its employees, unauthorized aliens, for their pay. The restaurant argued that that the plaintiffs lacked standing as they were illegally in the country and unauthorized to work. Considering this history, should people in the US illegally be limited in their ability to bring lawsuits in court?

If you just appeared in America, what would you need to know about our legal system?

We give a monthly "intro to law" talk at Bridge Refugee Services here in Chattanooga to brand spanking new arrivals. For about 40 minutes we go over the following topics:

- Local courts and what they hear;

- Where to get help and not being too embarrassed to ask;

- How to avoid scams;

- Very basic rules of the road, using car seats (as most can't drive yet but will);

- Dealing with the police;

- Domestic violence;

- Divorce;

- Children: truancy, corporal punishment;

- Animals (taking care of pets, not butchering own meat, etc.);

- Religious freedom to one's way of dressing (head scarves);

- Understanding contracts (if you don't speak English well);

- Housing - dealing with landlords.

What else might someone need to know who is brand new to the US and its culture/legal system?

Great Reference for Lease Drafting

Here's a great resource for use when drafting leases. It was prepared by Nashville attorney, C. Dewees Berry, IV:
http://tnrelaw.blogspot.com/p/avoiding-lease-drafting-pitfalls.html

Service on a party while in court - Georgia law

Sometimes, it's tempting to serve someone when she is known to be coming to court for another matter. This is usually not permitted, but there are exceptions.
 

Generally,

a suitor or a witness in attendance upon the trial of any case in court, is privileged from arrest under any civil process, and is exempted from the service of any writ or summons upon him or them while in attendance upon such court, or in going to or returning therefrom.

Steelman v. Fowler, 234 Ga. 706, 217 S.E.2d 285 (1975).

            There are two exceptions.  First, “it does not apply to criminal defendants or nonresidents, who are in this state temporarily ‘for some purpose other than to appear in court as a party or witness.’”  Loiten v. Loiten, 288 Ga. App. 638, 655 S.E.2d 265 (2007)citing Ausbon v. Ausbon, 131 Ga. App. 530, 531, 206 S.E.2d 546 (1974). 

            Second, it only protects “a party in attendance upon the trial of a case from service of process in a new action.” Blalock v. Blalock, 247 Ga. 548, 550, 277 S.E.2d 655 (1981).  For instance, a party suing for contempt could be served in court with a modification of custody matter which was actually a part of the same matter.  Id.

            In Loiten, the defendant appeared at trial to contest a restraining order entered against him ex parte for which he was not properly served (he received the order but not the petition).  At the hearing, the trial court asked him to waive service which he refused.  The court then instructed the sheriff to serve the defendant in the parking lot.  On appeal, the service was found to be ineffective.  Id. at 638.  The court held that although an ex parte hearing had been previously had, the matter was new to the defendant and therefore he was protected by the Steelman rule.

What happens when the signor of a guaranty adds a title e.g. "president" by her signature?

I once dealt with a situation where the guarantor for a corporate debtor signed the guaranty agreement with "president" by his name. He claimed he was signing not as an individual but as a corporate representative. This usually won't do since the guaranty clearly named the individual and it made little sense for the corporate guarantor to be the corporation (the principal).
 

Georgia case law:

A title such as “sec.” or “CEO” signed on a guaranty is a mere word of description and the signor remains personally liable.  See O.C.G.A. § 10-6-86; Upshaw v. Southern Wholesale Flooring Co., 197 Ga. App. 511, 398 S.E.2d 749 (1990); Keane v. Annice Heygood Trevitt Support Trust, 285 Ga. App. 155, 645 S.E.2d 641 (2007).  In Upshaw, the appellant placed the abbreviation “Sec.” immediately after her signature.  The court found this to be merely descriptive as the contract was unambiguous that she was signing in her personal capacity.  Likewise, in Keane, the appellant claims he signed “CEO” after his name although it was unreadable.  The court dismissed this argument as “there is nothing in the language of the guaranty to suggest that Keane was entering the obligation as a corporate officer.”  Id.

Secondly, in both Upshaw and Keane, the court found that removing the personal liability would render the obligation meaningless “as the corporation was already obligated on the debt” and summary judgment was thus proper.  Keane at 158; Upshaw at 513. 

Organized Pseudolegal Commercial Argument Litigants

Read a very interesting article in the Economist dealing with Canadians concocting very novel, very strange legal arguments in support of their otherwise, illegal acts. It begins with a tenant in default of his lease who said he was a "Freeman-on-the-Land," inter alia, and the landlord had no rights to the land in the first place based on some natural order. Evidently, these lines of reasoning have become so commonplace that an associate chief justice of Alberta's highest court, John Rooke, has written an extensive article detailing and rebutting these arguments. The opinion is here and a good summary is here.

I ran across something similar here in the US, the other day. Some have posited that a person's name is in all caps on her birth certificate as an alter ego to make one serve as collateral for all the government's debt. Happily, you can avoid this dehumanization by preparing a UCC financing statement with your name in all caps as the debtor, and your name with first letter capitalized as secured party. Please remember to renew your UCC every 5 years!

Default Judgments and Service by Mail.

Tennessee allows service of process by certified mail. This method may seem attractive, at first blush, due to its convenience and low cost. As a practical matter, however, a prescient defendant may well refuse to accept the mail in an attempt to thwart service, delaying the litigation. Also, a plaintiff who truly wishes to engage a defendant in a dispute may send a certified mail service only to get it returned as “undeliverable.” In such cases, will the plaintiff have anything to show for her attempts at service? As all good attorneys are trained to respond, it depends.

The Tennessee Rules of Civil Procedure (“TRCP”) contain special provisions for Tennessee residents and out-of-state residents. TRCP 4.04(10) covers Tennessee residents. It grants that service by “registered return receipt or certified return receipt mail” is valid service so long as plaintiff can provide a “return receipt showing personal acceptance by the defendant” or another person allowed by the rules. Such service will support a default judgment if the defendant does not then respond. However, without the return receipt, a default is not proper.

The rule for an out of state defendant is very different. Service by mail is, again, allowable. However, there is no requirement that the defendant actually sign the receipt. Under TRCP 4.05(5), the letter can be returned “unclaimed” or refused delivery and the service is still valid. The return must be filed in the clerk’s file and if so, it can be proper service for purposes of default.

In Hines v Tilimon, (Tenn. Ct. App. 2001), an out-of-state father was on the losing end of a default judgment granting custody of his children to the mother. Service of process upon the father was based on TRCP 4.05(5). On appeal, the father challenged the constitutionality of the service which argument was rejected on procedural grounds. (The father would have had to notify the attorney general while in the trial court so that the attorney general could defend the constitutionality of the Rule). Nonetheless, the Appeals Court found that the Rule not “so obviously unconstitutional on its face" as to warrant consideration of the constitutional issue. Thus, the father lost custody of his children based on not responding to his mail. It could have been different had he only been a Tennessee resident.

Domesticating an Out of State Judgment in Tennessee

An out of state judgment is not enforceable in Tennessee, unless the out-of-state judgment is properly domesticated in a Tennessee court. Judgments obtained in other states are entitled to “full, faith and credit” in Tennessee pursuant to the U.S. Constitution.

Art. IV § 1 of the Constitution of the United States

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

How a creditor can enforce her judgment

1.  Traditional Means: File a new lawsuit and obtain a judgment in the current jurisdiction (need only prove validity of judgment, not underlying substance); or

2. Register the foreign judgment pursuant to the Uniform Enforcement of Foreign Judgments Act (“UEFJA” or the “Act”).

Forty-eight states that have adopted some form of the uniform Act (California and Vermont have not). Tennessee’s version of the Act provides that a final judgment entered by a court in one state may be enforced in Tennessee by obtaining an authenticated copy of the judgment and filing it with the appropriate Tennessee court. Tenn. Code Ann. § 26-6-104. 

(a) A copy of any foreign judgment authenticated in accordance with the acts of congress or the statutes of this state may be filed in the office of the clerk of any circuit or chancery court of this state.

(b) The clerk shall treat the foreign judgment in the same manner as a judgment of a court of record of this state.

(c) A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a court of record of this state and may be enforced or satisfied in like manner.

          Tenn. Code § 26-6-104.

An exemplified judgment is a copy of the judgment to which a certificate has been attached and signed in three places, once by the judge and twice by the clerk, attesting to the authenticity and validity of the judgment. It is frequently called a judgment that has been authenticated pursuant to an Act of Congress.

The Act also stipulates the technical procedures for filing the judgment and providing notice and service of process on the judgment debtor. Specifically, Tenn. Code § 26-6-105 requires that

(a)  At the time of the filing of the foreign judgment, the judgment creditor or the judgment creditor's lawyer shall make and file with the clerk of the court an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor.

The Act directs courts in Tennessee to treat the foreign judgment in the same manner as a judgment of a court of record in Tennessee.  Once a foreign judgment has been enrolled, it has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a court of record in Tennessee and may be enforced or satisfied in the same manner. No execution or any other collection process, however, may be initiated until 30 days after the summons is served on the defendant. Tenn. Code Ann. § 26-6-105(c).

Once the 30 days is up, the Tennessee Rules of Civil Procedure require filing a Request for Execution with the court. Most Tennessee courts will also require a hearing (although not called for in the statute or rules). If a judgment debtor does dispute the Notice of Filing Foreign Judgment, Tennessee’s Uniform Enforcement of Foreign Judgments Act entitles the debtor to a trial on the merits concerning the underlying validity of the judgment, and the Tennessee Rules of Civil Procedure govern the trial on the merits on that answer and response.

When a Tennessee court can deny domesticating a foreign judgment:

•              Void due to a lack of personal or subject-matter jurisdiction

•              Based upon fraud

•              Where enforcement of the judgment would violate the public policy of the forum state

Illustrative cases:

In BancorpSouth Bank v. Johnson, W2012-00452-COA-R3CV, 2013 WL 3770856 (Tenn. App. 2013)., an Arkansas debtor alleged improper in a foreclosure valuation. He asserted the public policy defense saying Tennessee had a strong public policy of requiring a proper showing of valuation of a foreclosure sale before allowing a deficiency. The Appeals Court agreed but nonetheless held that the public policy of enforcing sister state judgments trumped.

Hart v. Tourte, 10 S.W.3d 263 (Tenn. App. 1999) concerned a judgment first entered in California. Originally, the judgment was denied domestication in Tennessee because it did not have exemplified judgment attached. The creditor renewed the California judgment ten years later and then sought to domesticate in Tennessee. On appeal, the court said the ten year period of limitations had not passed since the renewed judgment was effectively the same as the original judgment. Also, the creditor’s failure to get the original judgment domesticated the first time (which failed due to the exemplification issue) was not res judicata as to renewed judgment. On the other hand, the debtor’s affidavit that he was not properly served in original California matter precluded summary judgment to creditor.

In Cadlerock, LLC v. Weber, E2010-02137-COA-R3-CV (Tenn. App. 2011), the court held that an assignee of a New Jersey judgment (Cadlerock bought judgment from original plaintiff) had just as much right to domesticate as the person first obtaining the judgment.

Federal District Court Judgments

Registration of a federal district court judgment is also very straightforward. A certified copy of the final judgment must be filed with the local court. Service upon the debtor is not mandatory.

Once registered in the local district, the judgment has "the same effect as a judgment of the district court of the district where registered and may be enforced in like manner." (28 USC 1963).

Judgments Entered in Foreign Countries

Tennessee does not apply the UEFJA to judgments of other nations. See Maberry v. Maberry, No. M1999-01322-COA-R3-CV, 1999 WL 1072568 (Tenn. App. Nov. 30, 1999). That opinion further laid out the requirements for enforcement in Tennessee:

Through comity, a valid judgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the United States so far as the immediate parties and the underlying claim are concerned. See Restatement (Second) of Conflict of Laws 98 (1989); Robert A. Leflar et al., American Conflicts of Law 84, at 169-171 (3d ed. 1977). While the subject matter and in personam jurisdiction of a foreign decree is generally presumed to exist, said decree is only entitled to such presumption upon an affirmative showing, by the party seeking enforcement, that said decree was so issued by a court of general jurisdiction. See generally 50 C.J.S. Judgment 1035 (1997) (citing Baio v. Mangano, 9 N.Y.S.2d 276, 277, 256 A.D. 831 (1939); Traders Trust Co. v. Davidson, 178 N.W. 735, 146 Minn. 224 (1920)). As our sister states have phrased the requirement best: "In order to be entitled to comity, the record must show the foreign judgment partook of the elements which would support it if it had been obtained in this state." Popper v. Popper, 595 So.2d 100, at 103 (Fla. App. 5th Dist., 1992). In short, common sense requires that for any court to recognize a foreign decree, the substance of that decree must be proven, or at least be open to such a plain and obvious interpretation as to be susceptible to judicial notice pursuant to the Rules of Evidence. See Tenn. R. Evid. 202.

Foreign Arbitration Awards

Because of the messiness of domesticating judgments of other nations, international players mostly prefer the international arbitration process as opposed to dealing with courts of individual nations. The United States is a signatory to the Convention on Recognition and Enforcement of Foreign Arbitral Award, which mandates enforcement of arbitration agreements between citizens and entities of different countries, as well as arbitration awards.

To enforce a foreign arbitration award, a petition to confirm the award must be filed in the appropriate federal district within three years from the date of the issuance of the arbitration award. If the award is not in English, a certified translation must be provided with the petition. Once confirmed, the award is entered as a federal district court judgment and is enforceable just like any other judgment.