Vous êtes sur la page 1sur 15

1 Party without attorney

Rik W. Munson
2 218 Landana Street
3 American Canyon, CA 94503
Accused in Pro per
8 In the Superior Court of California
9 County of Contra Costa
10 Traffic Division
12 Rik W Munson )
Accused, in Pro per ) Docket Number W 956953-4 1
13 )
14 ) Special Plea in Bar
California Highway Patrol )
15 Complainant )
16 Jurisdiction Must Be Proven....................................................................................................3
SUFFICIENCY OF PRO SE PLEADINGS................................................................................3
18 NATURE OF ACTION....................................................................................................................4
20 1.1 Due Process Requires Notice and Opportunity to be heard...................................................4
II. CONFLICT OF LAWS RAISING A FEDERAL QUESTION...................................................5
22 2.1 Enforcement must be within statutory limitations of authority ............................................5
III. FEDERAL COMMERCE POWER VS STATE POLICE POWER .........................................6
24 3.1 Jurisdiction over interstate commerce is reserved to Congress, and must be delegated to the
26 QUESTIONS PRESENTED FOR REVIEW...................................................................................7
28 Comes now the People of the state of California by and through, Accused Rik Wayne

1 Munson a sovereign Citizen constituent one of the People of the state of California domiciled in
2 the republic guaranteed under Article IV Section IV of the United States Constitution and moves
3 this court for findings of fact, conclusions of law and ruling on this special plea in bar. Accused
4 Memorandum in Support of Special Plea in Bar is incorporated by this reference as if fully
5 restated herein.
6 This special plea in bar is to attack the prerequisite jurisdictional requirements necessary
7 for jurisdiction. This plea in bar addresses neither the elements, nor the sufficiency of the

8 plaintiffs cause, but is intended to raise jurisdictional matters that specially bar this court from

9 further action. This Special Plea in Bar is before this court as an offer of proof that the plaintiff in

10 the above referenced action is without or in want of standing, and without authorization to act as

11 prosecutor, a public office.

12 Accused herein named responds to the demands of this Court by Special not General

13 Appearance, In Propria Persona demanding

14 1. proof of jurisdiction,

15 2. authority, and legitimacy of the prosecution to proceed in this case,

16 3. proof of the existence of substantive law and

17 4. proof of jurisdiction, authority, and legitimacy of the judge, commissioner or

18 magistrate of this court to hear this case.

19 Accused is informed and believes and therefore avers the business at hand to be fully

20 without the personal and subject matter jurisdiction of this tribunal.

22 “It is now well settled by the weight of authority, and is undoubtedly the better

23 rule, that want of jurisdiction may be shown by the defendant even to the extent of

24 contradicting express recitals in the record” Carpenter v. Richie, 2 Wash. 512,

25 (JUL 01 1891) (Emphasis added)

27 When a court does not have subject matter jurisdiction to hear a case, then it
cannot have jurisdiction to decide issues of fact and law. In such cases, a motion
28 to dismiss for lack of jurisdiction or a Special Plea in Bar, is the proper

1 approach. Martorano v. Hertz Corp., 415 F. Supp. 295 (E.D. Pa. 1976; Cook v.
Children’s Medical Group, P.A., 756 So. 2d 734 (Miss. 1999)(Emphasis added)
3 A plea in bar is an appropriate means of challenging the trial courts
4 Subject matter jurisdiction. Fountain Parkway, Ltd. V. Tarrant Appraisal Dist., 920
5 S.W.2d 799 (Tex. App. Forth Worth 1996) reh’g overruled, (May 23, 1996) and
6 writ denied, (Sept. 12, 1996) (Emphasis added.
8 Jurisdiction Must Be Proven
9 "Once jurisdiction is challenged it must be proven1." “Sovereign immunity does not apply where
10 government is a lawbreaker or jurisdiction is the issue2.” When the jurisdiction of any tribunal is
11 challenged, that tribunal bears the burden of proving of jurisdictions over both person and
12 subject matter. "Once jurisdiction is challenged it must be proven.3"
13 It is well-established legal doctrine that assumptions and presumptuous conclusions are a
14 violation of Due Process. Accused does not accept, does not consent to, and does not authorize
15 the use of any form of intendments, nor presumptions, inferred or not, in this proceeding.
Pro-se litigants are entitled to be held to a less stringent standard than professional
attorneys. Accused is not an attorney, and therefore not subject to be held to the levels and
standards of an attorney regarding any responses, demands, motions or pleadings and Accused
pleadings may not be summarily dismissed.
This court is hereby put upon mandatory notice to observe the determinations of the
Supreme Court of the United States, in the case Puckett v. Cox 4 where it was held that a pro-se
(or in Propria Persona) complaint requires a less stringent reading than one drafted by an
attorney, said by Justice Black in Coneley v. Gibson.5:
26 1
Hagins vs Levine 415 US 533 note 3 (1974)
27 Arthur v. Fry, 300 F.Supp. 622 (1960).
Hagins vs Levine 415 US 533 note 3 (1974).
28 Puckett v. Cox 456 F2d 233 (1972 Sixth Circuit USCA)
Coneley v. Gibson. 355 U.S. 41 at 48 (1957) see also Haines v Kerner, 404 US 519-521 (1972)

1 “… allegations such as those asserted by petitioner, however in-artfully pleaded,
are sufficient to call for the opportunity to offer supporting evidence. We cannot
2 say with assurance that under the allegations of the pro se complaint, which we
3 hold to less stringent standards than formal pleadings drafted by lawyers…”
see also Plaskey v. CIA,6 "Court errs if court dismisses pro se litigant
4 without instructions of how pleadings are deficient and how to repair pleadings."
6 "The Federal Rules rejects the approach that pleading is a game of skill in which
one misstep by counsel may be decisive to the outcome and accepts the principle
7 that the purpose of pleading is to facilitate a proper decision on the merits."
According to rule 8(f) FRCP7 all pleadings shall be construed to do substantial
8 justice."
1.1 Due Process Requires Notice and Opportunity to be heard.
The corner stone of Due Process of Law is fundamental fairness, which includes
amongst other things, both “notice” and “a meaningful opportunity to be heard”. Implicit
in the notion of notice is the right of an accused to know the substantive area of law
within which plaintiffs’ cause lies. The failure, of the agencies charged with the
preservation of public justice, to declare the substantive area of law within which traffic
infractions reside violates the notice requirement of due process and prevents any
meaningful opportunity to be heard thus raising a federal question.
The removal of 'traffic infractions' from criminal station without public notice of
their reconstituted status in law is a direct violation of the notice requirement of Due
Process in the face of which accused has no meaningful opportunity to meet the charges
by way of defense or explanation and thus no meaningful opportunity to be heard.
Further, if infractions can be said to be in the nature of any form of offense but not in the
nature of a public offense then it follows of necessity that the offense must be private as all
things not public are private.
28 Plaskey v. CIA, 953 F.2nd 25
Rule 8(f) FRCP

1 1. If infractions are private offenses then are they breach or tort?
2 2. The absence of proper identification of the principal(s),
3 3. absence of proper identification of the nature and extent of plaintiff injury or loss
4 4. and absence of a statement of how accused actions or inaction is the proximate
5 cause of said loss is fatal to the cause.
6 It further follows that the pleadings allowed in civil actions do not include “ticket” which
7 Blacks Law Dictionary 4th defines as a corporate instrument. Thus the matter is confined

8 to the domain of private law.


10 2.1 Enforcement must be within statutory limitations of authority

11 Accused charges that statutory parameters are controlling, and that the Plaintiff has

12 chosen to include under statutory application his act of private travel, while said provisions

13 actually apply only to those engaged in commerce. The judicial and executive branches have no

14 authority to read into the law that which is not manifest in its terms.

15 "It is elementary that the meaning of a statute must, in the first instance, be sought
in the language in which the act is framed, and if that is plain, and if the law is
16 within the constitutional authority of the law-making body which passed it, the
sole function of the court is to enforce it according to its terms.” Lake County v.
Rollins, 130 D.S, 662, 670, 671; Bate Refrigerating Co. v. Sulzberger, 157 D.S: 1,
18 33; United States v. Lexington Mill and Elevator Co., 232 U.S. 399, 409; United
States v. Bank, 234 U.S. 245, 258." Carminetti v. U.S., 242 U.S. 470, 485, 489-
19 493 (1916).
All agency action, therefore, must find itself within the confines of legislative mandate,
and those acts committed without statutory grace are unlawful. The STATE OF CALIFORNIA
and instrumentalities thereof, when engaged in indiscriminate application of laws the subject of
which is commerce, and which are shown to injure those not proper objects of said laws, raises a
federal question.
Where administration of the affairs of the STATE are accomplished at the expense of
individuals, the State must show an unavoidable and substantive 'compelling interest'. But where
whole classes of persons are made to suffer injury no mere 'compelling interest' can be viewed as
both necessary and sufficient justification for such practice.

1 In purporting to reach to objects not within the purview of laws treating of motor vehicles
2 engaged for purposes of commercial conduct, agents and officers (not civil officers, but
3 employee’s and members of paramilitary contractor organizations) acting under color of public
4 authority engage in behavior defined in the RICO statutes, and therein perpetrate a fraud upon
5 their victims. The fact that the courts in league with officers of various municipal corporations,
6 and their contractors, cooperate to affect a routine designed to deprive people of their property
7 and restrain their liberty, is clear evidence of conspiracy as it is defined in the RICO statutes.
8 Real law is not ambiguous, and cannot be suffered to tolerate the obfuscations of those
9 interested in extracting its benefits by engaging in subterfuge. The legal principles and terms
10 applicable to commercial conduct, as it applies to motor vehicles is defined in 49 USC and
11 exemplified in 49 CFR, and nowhere do those statutes or substantive regulations express any
12 intention in contemplation of the kind of 'business' practiced by private and public officials as a
13 matter of routine in “traffic” courts throughout the state.
16 3.1 Jurisdiction over interstate commerce is reserved to Congress, and must be

17 delegated to the State.

18 While it is clear that the Accused 's enjoyment of the highways for private travel is held

19 by the Supreme Court to be a fundamental right, secured under the Constitution for the United

20 States as an incident of Accused national citizenship, the State of California construes the same

21 to be a privilege granted by the State, an activity that is within the licensing authority of the

22 State, but attaches such authority only to the operation of "motor vehicles."

23 It is also quite clear that what the legislative body with the exclusive authority to legislate

24 for the use of the highways (Congress) has delegated to the State licensing authority is pertinent

25 and applicable only to one's commercial use of the highways, for the "transportation" of goods

26 and persons.

27 When one considers the terminology used in definitions enacted by Congress, a strong

28 indication that only commercial activities are the object of this legislation is starkly apparent. If

1 the Court cannot provide and cite to other and contrary authorities to those relied upon herein,
2 can the State be said to be within its authority when enforcing upon the Accused. State law said
3 to apply only to "motor vehicles"?
4 Where Congress or a State enjoys jurisdiction, said enjoyment is exclusive8,. and it is
5 Congress that enjoys original jurisdiction over the use of the highways and instrumentalities of
6 interstate commerce, and this includes all public easements the use of such property being a right
7 vested in the Public. US. v. Guest, Id.; U.S. v. Lopez, Id., at 1629, syllabus also. See Black's, 6th
8 Edition, "Easements" and "Private or public easements," infra
9 "It is in the 8th section of the second article, we are to look for cessions of territory and of
10 exclusive jurisdiction." US. v. Bevans, supra, at 388.
13 It seems to the Accused that, if the Plaintiff's authority over the highways is original State

14 police power, Congress was wasting its time by enacting 49 USC Subtitle VI. If Congress can

15 legislate for the use of the highways in such a fashion, where is its cession of authority to the

16 state of California? If Congress can legislate in such a way, does the State of California have

17 original jurisdiction? The issue in question is clear. Accused contends that the safe private travel

18 upon the highways is an activity not within the scope of "Motor Vehicles," and therefore the

19 Plaintiff has failed to state a claim by' citing the Accused there under.

20 To arrange one's own affairs, naturally, one must know all about applicable provisions.

21 Enough evidence exists to support the Accused 's conclusions, and if he is, mistaken, a contrary

22 explanation of the law is property to which he is entitled, and it is the only remedy that will cure

23 this controversy, thereby permitting Accused to stay within the good graces of his servants on the

24 State level.

25 Question:

26 4.1 Accused hereby questions the State of California's jurisdiction under statute (49 USC;

27 scope of California Motor Vehicle Code as it relates to Federal commerce power), and requests
28 US. v. Lopez, 115 S.Ct. 1624, 1633, 511 U.S. - (1995); US. v. Bevans, 3 Wheat. 336, 387 (1818); Edwards v.
California, 314 U.S. 160 (1941); U.S. v. Guest, 383 U.S. 745 (1966)

1 that this Court answer with interpretive Memorandum the definition of powers as shown herein
2 to be at odds with one another, those being Federal commerce power and State police power.
3 4.2 For Accused to arrange his own affairs according to law, he must receive curative
4 instruction in the form of a Memorandum that duly disposes of the questions below.
5 4.3 Having relied strictly upon statute and decisions of high authority, the Accused perceives
6 no cause for apprehension when asking for a definition of powers as requested herein.
7 Accused perceives any decision stating that the State is exercising original police power
8 when licensing the private use of the highways to be one that renders 49 USC moot, a
9 mere nullity, and he therefore propounds the following inquiries:
10 Jurisdiction:
11 4.4 When Congress enjoys jurisdiction over a certain activity or territory, is its jurisdiction
12 exclusive and retained in full until waived or ceded to another authority?
13 4.5 By which provision of the state Constitution is the state legislature granted the authority
14 to regulate the individual's private travel upon the highways?
15 4.6 Does Congress enjoy exclusive jurisdiction over the highways and instrumentalities of
16 interstate commerce, or are said highways and instrumentalities under State jurisdiction?
17 4.7 Is the public's use of the highways for private travel an activity that substantially affects
18 interstate commerce?
19 4.8 Does the State have original jurisdiction over activities that substantially affect interstate
20 commerce, or must such authority be obtained by cession of such from Congress?
21 Conflict of powers:
22 4.9 Is Accused 's private travel upon the highways the enjoyment of a federally protected
23 right, or is it the exercise of a privilege granted by the State?
24 4.10 Can an activity be a federally protected right while at the same time being a privilege
25 granted by the State?
26 4.11 Is the State's authority and jurisdiction to regulate the highways that being originally
27 inherent and under exclusive jurisdiction of the State, or is it a cession of Federal

1 commerce power reserved to Congress? If the latter, what are the limitations of this
2 cession? (See 49 USC Subtitle VI)
3 Authorities and terms:
4 4.12 In this Court's opinion, is the "transportation of persons" the same as "use of the public,"
5 or "travel between localities or communities' as said terms apply to Accused? If so, please
6 explain.
7 4.13 Which California state Constitutional provision provides the authority for the legislature
8 to regulate an individual's private non-commercial travel upon the highways?
9 4.14 If the state sees 49 USC Subtitle VI as being moot, upon what Congressional legislative
10 session of regulatory authority over interstate commerce does the state rely?
11 4.15 If Congress indeed has no original jurisdiction over private travel upon the highways of
12 the State. What is the source of the State's authority to license the private travel of the
13 Accused?
14 4.16 Is the term "motor vehicle" defined in 18 USC 31 the same "motor vehicle" to which
15 “California Motor Vehicle Codes" applies? If not, why not?
16 4.17 The only Federal definitions of "driver's license" and "motor vehicle" are tied to
17 commercial activities, under 18 USC 31, 49 USC 31301 and 49 CFR 382.107, 390.5 and
18 398.1 (d).
19 4.17.1 Can the State redefine terms used by Congress applied to activities over which Congress
20 enjoys regulatory and legislative authority?
21 4.17.2 Can the State redefine Federal terms after receiving a cession of authority from
22 Congress?
23 4.18 Is the states use of the term "motor vehicle" other than one that implies commercial use of
24 the highways?
25 4.19 Is the "driver's license" required of the Accused by the State the same "driver's license"
26 defined under 49 USC 31301(6)? If not, is there another place in Federal statute where
27 Accused might find a definition that does define the license required of the Accused by
28 the State?

1 4.20 In 49 USC 31301(2), Congress states unequivocally "'commerce' means trade, traffic, and
2 transportation." For the purposes of American jurisprudence, does the term
3 "transportation" apply to private use of the highways or is it a term that implies
4 specifically commercial use of the highways?
5 4.21 Accused sees controlling law to be that which limits the State's licensing authority to
6 commercial use of the highways, that Congress has not extended its cession of authority
7 to the States for the licensing of the use of the highways to subjects other than
8 commercial activities, thus excluding private travel of the Accused from said licensing
9 authority. If this is not the law please explain.
10 4.22 California Vehicle Code 15210 (P) 7 gives supremacy to federal definitions. Accused
11 perceives a contradiction of terms when State enforcement and congressional definitions
12 are placed side by side. Accused perceives a struggle between State police power and
13 Federal commerce power when he sees a fundamental and federally protected right
14 proclaimed by the State to be a privilege granted by the State, an activity that, without the
15 State's permission, would not be permitted. Within this point alone there can be found a
16 demand for clarification, one calling for a definition of these powers, as they relate to the
17 Accused.
18 4.23 Accused perceives the State's licensing of private travel to be, that which encroaches on
19 Federal commerce power, and as that not rightfully born of congressional cession of
20 authority.
21 4.24 The state of California has also held that traffic infractions are offenses but that they are
22 not public offenses. Are traffic offenses private offenses? Is there any other possibility?
23 4.25 If infraction offenses are private then are they a breach or a tort?
27 5.1 The proposed findings listed below will serve to clarify the Accused 's conclusions, as
28 derived from the language of the authorities cited herein and in the supporting

1 memorandum incorporated by this reference as if fully stated herein. Accused believes
2 that his conclusions are sound and reasonable, and acts upon them as lawful in arranging
3 his affairs according to written law.
4 5.2 If such conduct appears to be deemed locally as a violation of state law thus clarification
5 in the form of an interpretive memorandum is property to which Accused is rightfully
6 entitled.
7 5.3 Due to the consequences of this local misapplication of law Accused has suffered and
8 continues to suffer deprivation of Constitutionally protected rights, restraint of liberty and
9 other tangible economic and related harms. The answers herein articulated have thus
10 become by operation of law a property belonging to the accused.
11 5.4 Detailed below is the structure of the Accused 's perception of the definition of Federal
12 commerce power, as it relates to the State's involvement in regulating the use of the
13 highways for private travel. Also detailed is the Accused 's perception that certain
14 terminology further stipulates to his contention that, in certain statutory schemes, certain
15 terms signify only commercial enterprise or activity, and that they are controlling in the
16 application of said schemes.
17 (A): The public's use of the highway for private travel is an activity that substantially
18 affects interstate commerce, and therefore, it is an activity that falls within the exclusive and
19 original jurisdiction of Congress, as provided for under United State Constitution, Article I, § 2,
20 the Commerce clause.
21 (B): As it pertains to the movement of people, goods, or freight, Congress has original
22 and exclusive jurisdiction over city, county, and state streets, highways and freeways, retaining
23 any and all authority over interstate commerce which is not expressly ceded or delegated to the
24 State.
25 (C): Congress has delegated to the State regulatory authority over the highways within its
26 boundaries, to degrees, and has done so in Title 49 of the United States Code, in Subtitle VI
27 Motor Vehicle and Driver Programs, and in no other place.

1 (D): Outside 49 USC Subtitle VI, there exists no express grant from Congress to the State
2 of any degree of Federal commerce power to regulate the use of the highways within their
3 boundaries. Title 49 USC Subtitle VI is the structure of State authority over the use and
4 enjoyment of the highways within its boundaries.
5 (E): Within congressional cession of Federal commerce power to the State there is found
6 no authority to license any use of the highways other than for commercial activity. Obvious
7 congressional intent is that private travel not be included in its prescription for licensing those
8 using the highways. Because licensing the use of the highways is found only in 49 USC Chapter
9 313 COMMERCIAL MOTOR VEHICLE OPERATORS, and because such licensing is
10 mentioned in no other place, private travel is clearly not within the scope of the cession of
11 authority found in 49 USC Subtitle VI.
12 (F): When certain restrictions are placed upon the application of certain terms by
13 Congress, under cession of authority the State may not broaden or displace the meaning of said
14 terms as contemplated by Congress. Any attempt to broaden congressional intent and to misapply
15 such a mandate is unlawful.
16 (G): When found in legislation, the terms "motor vehicle" and "transportation" are
17 applicable only to commercial activities. The use of these terms is intended to exclude from
18 application any activity not commercial in its nature and intent.
19 (H): The State's authority to enact and enforce “California Motor Vehicle Codes" is 49
20 USC Chapter 313, and said California Motor Vehicle Codes applies only to commercial activity
21 conducted on the highways and within the boundaries of the State.
22 (I): The use of the highways for private travel is a fundamental right finding its
23 protections from invasion under U.S. Constitution, Article IV, § 2 as an equal privilege. This
24 right incident of every American's national citizenship not granted by the Federal government or
25 by any State.
26 (J): The State possesses no Constitutional authority to license those using the highways
27 for private travel. By declaring private travel a licensable activity, the State has assumed a
28 power, which it does not because it cannot have.

1 (K): The language of “California Motor Vehicle Codes" does not dispose of the intent of
2 Congress as found in 49 USC Subtitle VI and has no lawful power to expand the definitions of
3 terms such as “motor vehicle”, a commercial term.
4 (L): “California Motor Vehicle Codes" embraces only commercial use of the highways, a
5 fortiori, “California Motor Vehicle Codes" embraces only commercial use of the highways, since
6 said titles are to be construed in para materia.
8 5.3 Accused feels that the validity of his conclusions will be well weighed by his Questions
9 Presented for Review, and sees the answering of such to be the cure for his situation, that of not
10 knowing the basis or source of authority presently in use against him.
14 6.1 In the absence of logical answers to questions arising out of this obvious conflict between
15 State police powers and exclusive Federal commerce power, to regulate the use of the
16 highways and instrumentalities of interstate commerce, absent the production of clear
17 legislative intent to broaden the Session Laws' definition of the term "motor-vehicle" to
18 include travel and communication, Accused has this Court's blessings and shall feel free
19 to proceed as follows:
20 1) As if “California Motor Vehicle Codes" is not applicable to "travel or communication
21 between different localities or communities" nor to "use of the public," and.
23 2) As if “California Motor Vehicle Codes" applies only to "transportation of persons or
24 freight" via "motor vehicles" as is stated in “California Motor Vehicle Codes" legislative history,
25 and,
26 3) As if the terms "motor vehicle" and "transportation" when found in State or Federal
27 statute always imply only commercial activity, always having that meaning and application

1 manifest in 18 USC 31, 49 USC 31301(2) "commerce," and Black's, 6th, "Transportation," and
2 as if said terms always expressly exclude private travel upon the highways, and,
3 4) As if Congress has limited the State's licensing authority for use of the highways to
4 commercial use, and that the State of California is bound by said limitation as it applies to
5 licensing the use of the highways outlined in 49 USC Chapter 313 "COMMERCIAL MOTOR
7 5) As if safe equipment, rules of the road, and speed limit statutes are still binding upon
8 private travelers using the highways.
9 6) As if “California Motor Vehicle Codes" imposes no requirements upon the private
10 travelers upon the highways to obtain a driver's license, registration, license plates, license tabs,
11 or auto insurance.
12 7) As if “California Motor Vehicle Codes" imposes absolutely no requirement to carry
13 identification (ID.) of any nature when using the highways for private travel.
15 6.2 A reasonable individual would tend to believe as the Accused believes, given the narrow
16 language and definite structure of legislation applicable to the use of the highways.
17 Accused sees his conclusions as logical ones, drawn from a responsible assembly of
18 pertinent authorities, and from an application of certain axioms.
19 6.3 Accused has relied upon prevailing Laws for his claim. If the Plaintiff cannot provide
20 logical answers to the questions presented herein, the Plaintiff cannot be held to have the
21 law in its favor. If the “California Motor Vehicle Codes", cannot be shown to be law
22 applicable to the Accused when he is not engaged in "transportation," the Plaintiff's
23 complaint must be dismissed with prejudice for lack of jurisdiction over the person and
24 activities of the Accused.
25 6.4 This court should properly consider the serious ramifications to proceed further without
26 lawful jurisdiction and should dismiss all alleged charges with prejudice.

1 6.5 Further, Accused moves this court to dismiss the “traffic” claim with prejudice for failure
2 to state a cause of action, lack of subject matter jurisdiction and failure to allege a factual
3 basis for the claim.
4 6.6 Accused so moves this court for said order dismissing the “traffic” “ticket” with
5 prejudice.
I affirm pursuant to the laws of the republic state of California, that the foregoing is true,
accurate and complete.
Respectfully submitted this Monday, January 19, 2009
Rik Munson
12 Accused in Pro per