Plea In Bar Traffic

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Party without attorney Rik W. Munson 218 Landana Street American Canyon, CA 94503 Accused in Pro per

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In the Superior Court of California

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County of Contra Costa

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Traffic Division

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Rik W Munson Accused, in Pro per

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Docket Number W 956953-4 1 )

Special Plea in Bar

California Highway Patrol Complainant

) ) ) Jurisdiction Must Be Proven....................................................................................................3

SUFFICIENCY OF PRO SE PLEADINGS................................................................................3 NATURE OF ACTION....................................................................................................................4 I. DUE PROCESS AND ABSENCE OF LAW RAISING A FEDERAL QUESTION:..................4 1.1 Due Process Requires Notice and Opportunity to be heard...................................................4 II. CONFLICT OF LAWS RAISING A FEDERAL QUESTION...................................................5 2.1 Enforcement must be within statutory limitations of authority ............................................5 III. FEDERAL COMMERCE POWER VS STATE POLICE POWER .........................................6 3.1 Jurisdiction over interstate commerce is reserved to Congress, and must be delegated to the State..............................................................................................................................................6 QUESTIONS PRESENTED FOR REVIEW...................................................................................7

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Comes now the People of the state of California by and through, Accused Rik Wayne -1-

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Munson a sovereign Citizen constituent one of the People of the state of California domiciled in

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the republic guaranteed under Article IV Section IV of the United States Constitution and moves

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this court for findings of fact, conclusions of law and ruling on this special plea in bar. Accused

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Memorandum in Support of Special Plea in Bar is incorporated by this reference as if fully

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restated herein.

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This special plea in bar is to attack the prerequisite jurisdictional requirements necessary

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for jurisdiction. This plea in bar addresses neither the elements, nor the sufficiency of the

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

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

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

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prosecutor, a public office.

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Accused herein named responds to the demands of this Court by Special not General Appearance, In Propria Persona demanding

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1.

proof of jurisdiction,

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2.

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

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3.

proof of the existence of substantive law and

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4.

proof of jurisdiction, authority, and legitimacy of the judge, commissioner or

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magistrate of this court to hear this case. Accused is informed and believes and therefore avers the business at hand to be fully without the personal and subject matter jurisdiction of this tribunal.

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

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

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

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(JUL 01 1891) (Emphasis added)

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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 to dismiss for lack of jurisdiction or a Special Plea in Bar, is the proper

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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)

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A plea in bar is an appropriate means of challenging the trial courts

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Subject matter jurisdiction. Fountain Parkway, Ltd. V. Tarrant Appraisal Dist., 920

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S.W.2d 799 (Tex. App. Forth Worth 1996) reh’g overruled, (May 23, 1996) and

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writ denied, (Sept. 12, 1996) (Emphasis added.

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Jurisdiction Must Be Proven

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"Once jurisdiction is challenged it must be proven1." “Sovereign immunity does not apply where

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government is a lawbreaker or jurisdiction is the issue2.” When the jurisdiction of any tribunal is

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challenged, that tribunal bears the burden of proving of jurisdictions over both person and

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subject matter. "Once jurisdiction is challenged it must be proven.3"

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It is well-established legal doctrine that assumptions and presumptuous conclusions are a

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violation of Due Process. Accused does not accept, does not consent to, and does not authorize

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the use of any form of intendments, nor presumptions, inferred or not, in this proceeding.

16 SUFFICIENCY OF PRO SE PLEADINGS.

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Pro-se litigants are entitled to be held to a less stringent standard than professional

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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

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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: 1

Hagins vs Levine 415 US 533 note 3 (1974) Arthur v. Fry, 300 F.Supp. 622 (1960). 3 Hagins vs Levine 415 US 533 note 3 (1974). 4 Puckett v. Cox 456 F2d 233 (1972 Sixth Circuit USCA) 5 Coneley v. Gibson. 355 U.S. 41 at 48 (1957) see also Haines v Kerner, 404 US 519-521 (1972) 2

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“… allegations such as those asserted by petitioner, however in-artfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we 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 without instructions of how pleadings are deficient and how to repair pleadings."

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"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 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 justice."

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NATURE OF ACTION

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I.

DUE PROCESS AND ABSENCE OF LAW RAISING A FEDERAL

QUESTION: 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. 6 7

Plaskey v. CIA, 953 F.2nd 25 Rule 8(f) FRCP

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1.

If infractions are private offenses then are they breach or tort?

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2.

The absence of proper identification of the principal(s),

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3.

absence of proper identification of the nature and extent of plaintiff injury or loss

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4.

and absence of a statement of how accused actions or inaction is the proximate cause of said loss is fatal to the cause.

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It further follows that the pleadings allowed in civil actions do not include “ticket” which

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Blacks Law Dictionary 4th defines as a corporate instrument. Thus the matter is confined

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to the domain of private law.

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II.

CONFLICT OF LAWS RAISING A FEDERAL QUESTION

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2.1

Enforcement must be within statutory limitations of authority

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

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

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

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

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"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 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, 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, 489493 (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. -5-

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In purporting to reach to objects not within the purview of laws treating of motor vehicles

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engaged for purposes of commercial conduct, agents and officers (not civil officers, but

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employee’s and members of paramilitary contractor organizations) acting under color of public

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authority engage in behavior defined in the RICO statutes, and therein perpetrate a fraud upon

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their victims. The fact that the courts in league with officers of various municipal corporations,

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and their contractors, cooperate to affect a routine designed to deprive people of their property

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and restrain their liberty, is clear evidence of conspiracy as it is defined in the RICO statutes.

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Real law is not ambiguous, and cannot be suffered to tolerate the obfuscations of those interested in extracting its benefits by engaging in subterfuge. The legal principles and terms

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applicable to commercial conduct, as it applies to motor vehicles is defined in 49 USC and

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exemplified in 49 CFR, and nowhere do those statutes or substantive regulations express any

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intention in contemplation of the kind of 'business' practiced by private and public officials as a

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matter of routine in “traffic” courts throughout the state.

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III.

FEDERAL COMMERCE POWER VS STATE POLICE POWER

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3.1

Jurisdiction over interstate commerce is reserved to Congress, and must be

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delegated to the State.

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

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

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

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

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

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

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

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

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and persons.

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When one considers the terminology used in definitions enacted by Congress, a strong indication that only commercial activities are the object of this legislation is starkly apparent. If

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the Court cannot provide and cite to other and contrary authorities to those relied upon herein,

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can the State be said to be within its authority when enforcing upon the Accused. State law said

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to apply only to "motor vehicles"? Where Congress or a State enjoys jurisdiction, said enjoyment is exclusive8,. and it is

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Congress that enjoys original jurisdiction over the use of the highways and instrumentalities of

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interstate commerce, and this includes all public easements the use of such property being a right

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vested in the Public. US. v. Guest, Id.; U.S. v. Lopez, Id., at 1629, syllabus also. See Black's, 6th

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Edition, "Easements" and "Private or public easements," infra

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"It is in the 8th section of the second article, we are to look for cessions of territory and of

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exclusive jurisdiction." US. v. Bevans, supra, at 388.

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QUESTIONS PRESENTED FOR REVIEW. It seems to the Accused that, if the Plaintiff's authority over the highways is original State

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

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

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

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

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

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Plaintiff has failed to state a claim by' citing the Accused there under. To arrange one's own affairs, naturally, one must know all about applicable provisions.

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

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

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

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State level.

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Question:

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4.1

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scope of California Motor Vehicle Code as it relates to Federal commerce power), and requests

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

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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)

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that this Court answer with interpretive Memorandum the definition of powers as shown herein

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to be at odds with one another, those being Federal commerce power and State police power.

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4.2

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instruction in the form of a Memorandum that duly disposes of the questions below.

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4.3

For Accused to arrange his own affairs according to law, he must receive curative

Having relied strictly upon statute and decisions of high authority, the Accused perceives

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no cause for apprehension when asking for a definition of powers as requested herein.

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Accused perceives any decision stating that the State is exercising original police power

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when licensing the private use of the highways to be one that renders 49 USC moot, a

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mere nullity, and he therefore propounds the following inquiries:

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Jurisdiction:

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4.4

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exclusive and retained in full until waived or ceded to another authority? 4.5

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4.6

Does Congress enjoy exclusive jurisdiction over the highways and instrumentalities of interstate commerce, or are said highways and instrumentalities under State jurisdiction?

4.7

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By which provision of the state Constitution is the state legislature granted the authority to regulate the individual's private travel upon the highways?

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When Congress enjoys jurisdiction over a certain activity or territory, is its jurisdiction

Is the public's use of the highways for private travel an activity that substantially affects interstate commerce?

4.8

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Does the State have original jurisdiction over activities that substantially affect interstate commerce, or must such authority be obtained by cession of such from Congress?

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Conflict of powers:

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4.9

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right, or is it the exercise of a privilege granted by the State? 4.10

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Is Accused 's private travel upon the highways the enjoyment of a federally protected

Can an activity be a federally protected right while at the same time being a privilege granted by the State?

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Is the State's authority and jurisdiction to regulate the highways that being originally inherent and under exclusive jurisdiction of the State, or is it a cession of Federal

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commerce power reserved to Congress? If the latter, what are the limitations of this

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cession? (See 49 USC Subtitle VI)

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Authorities and terms:

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4.12

In this Court's opinion, is the "transportation of persons" the same as "use of the public,"

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or "travel between localities or communities' as said terms apply to Accused? If so, please

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explain.

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4.13

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to regulate an individual's private non-commercial travel upon the highways? 4.14

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Which California state Constitutional provision provides the authority for the legislature

If the state sees 49 USC Subtitle VI as being moot, upon what Congressional legislative session of regulatory authority over interstate commerce does the state rely?

4.15

If Congress indeed has no original jurisdiction over private travel upon the highways of

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the State. What is the source of the State's authority to license the private travel of the

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Accused?

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4.16

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Is the term "motor vehicle" defined in 18 USC 31 the same "motor vehicle" to which “California Motor Vehicle Codes" applies? If not, why not?

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The only Federal definitions of "driver's license" and "motor vehicle" are tied to

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commercial activities, under 18 USC 31, 49 USC 31301 and 49 CFR 382.107, 390.5 and

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398.1 (d).

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4.17.1 Can the State redefine terms used by Congress applied to activities over which Congress

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enjoys regulatory and legislative authority? 4.17.2 Can the State redefine Federal terms after receiving a cession of authority from

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Congress? 4.18

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Is the states use of the term "motor vehicle" other than one that implies commercial use of the highways?

4.19

Is the "driver's license" required of the Accused by the State the same "driver's license"

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defined under 49 USC 31301(6)? If not, is there another place in Federal statute where

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Accused might find a definition that does define the license required of the Accused by

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the State?

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4.20

In 49 USC 31301(2), Congress states unequivocally "'commerce' means trade, traffic, and

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transportation." For the purposes of American jurisprudence, does the term

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"transportation" apply to private use of the highways or is it a term that implies

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specifically commercial use of the highways?

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4.21

Accused sees controlling law to be that which limits the State's licensing authority to

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commercial use of the highways, that Congress has not extended its cession of authority

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to the States for the licensing of the use of the highways to subjects other than

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commercial activities, thus excluding private travel of the Accused from said licensing

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authority. If this is not the law please explain.

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4.22

California Vehicle Code 15210 (P) 7 gives supremacy to federal definitions. Accused

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perceives a contradiction of terms when State enforcement and congressional definitions

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are placed side by side. Accused perceives a struggle between State police power and

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Federal commerce power when he sees a fundamental and federally protected right

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proclaimed by the State to be a privilege granted by the State, an activity that, without the

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State's permission, would not be permitted. Within this point alone there can be found a

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demand for clarification, one calling for a definition of these powers, as they relate to the

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Accused.

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4.23

Accused perceives the State's licensing of private travel to be, that which encroaches on

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Federal commerce power, and as that not rightfully born of congressional cession of

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authority.

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4.24

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The state of California has also held that traffic infractions are offenses but that they are not public offenses. Are traffic offenses private offenses? Is there any other possibility?

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If infraction offenses are private then are they a breach or a tort?

V.

PROPOSED FINDINGS & RELIEF REQUESTED.

5.1

The proposed findings listed below will serve to clarify the Accused 's conclusions, as

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derived from the language of the authorities cited herein and in the supporting

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memorandum incorporated by this reference as if fully stated herein. Accused believes

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that his conclusions are sound and reasonable, and acts upon them as lawful in arranging

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his affairs according to written law.

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5.2

If such conduct appears to be deemed locally as a violation of state law thus clarification

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in the form of an interpretive memorandum is property to which Accused is rightfully

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entitled.

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5.3

Due to the consequences of this local misapplication of law Accused has suffered and

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continues to suffer deprivation of Constitutionally protected rights, restraint of liberty and

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other tangible economic and related harms. The answers herein articulated have thus

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become by operation of law a property belonging to the accused. 5.4

Detailed below is the structure of the Accused 's perception of the definition of Federal

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commerce power, as it relates to the State's involvement in regulating the use of the

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highways for private travel. Also detailed is the Accused 's perception that certain

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terminology further stipulates to his contention that, in certain statutory schemes, certain

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terms signify only commercial enterprise or activity, and that they are controlling in the

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application of said schemes.

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(A): The public's use of the highway for private travel is an activity that substantially

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affects interstate commerce, and therefore, it is an activity that falls within the exclusive and

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original jurisdiction of Congress, as provided for under United State Constitution, Article I, § 2,

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the Commerce clause.

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(B): As it pertains to the movement of people, goods, or freight, Congress has original

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and exclusive jurisdiction over city, county, and state streets, highways and freeways, retaining

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any and all authority over interstate commerce which is not expressly ceded or delegated to the

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State.

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(C): Congress has delegated to the State regulatory authority over the highways within its

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boundaries, to degrees, and has done so in Title 49 of the United States Code, in Subtitle VI

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Motor Vehicle and Driver Programs, and in no other place.

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(D): Outside 49 USC Subtitle VI, there exists no express grant from Congress to the State

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of any degree of Federal commerce power to regulate the use of the highways within their

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boundaries. Title 49 USC Subtitle VI is the structure of State authority over the use and

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enjoyment of the highways within its boundaries.

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(E): Within congressional cession of Federal commerce power to the State there is found

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no authority to license any use of the highways other than for commercial activity. Obvious

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congressional intent is that private travel not be included in its prescription for licensing those

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using the highways. Because licensing the use of the highways is found only in 49 USC Chapter

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313 COMMERCIAL MOTOR VEHICLE OPERATORS, and because such licensing is

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mentioned in no other place, private travel is clearly not within the scope of the cession of

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authority found in 49 USC Subtitle VI.

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(F): When certain restrictions are placed upon the application of certain terms by

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Congress, under cession of authority the State may not broaden or displace the meaning of said

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terms as contemplated by Congress. Any attempt to broaden congressional intent and to misapply

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such a mandate is unlawful.

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(G): When found in legislation, the terms "motor vehicle" and "transportation" are

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applicable only to commercial activities. The use of these terms is intended to exclude from

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application any activity not commercial in its nature and intent.

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(H): The State's authority to enact and enforce “California Motor Vehicle Codes" is 49

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USC Chapter 313, and said California Motor Vehicle Codes applies only to commercial activity

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conducted on the highways and within the boundaries of the State.

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(I): The use of the highways for private travel is a fundamental right finding its

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protections from invasion under U.S. Constitution, Article IV, § 2 as an equal privilege. This

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right incident of every American's national citizenship not granted by the Federal government or

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by any State.

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(J): The State possesses no Constitutional authority to license those using the highways

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for private travel. By declaring private travel a licensable activity, the State has assumed a

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power, which it does not because it cannot have.

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(K): The language of “California Motor Vehicle Codes" does not dispose of the intent of

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Congress as found in 49 USC Subtitle VI and has no lawful power to expand the definitions of

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terms such as “motor vehicle”, a commercial term.

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(L): “California Motor Vehicle Codes" embraces only commercial use of the highways, a

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fortiori, “California Motor Vehicle Codes" embraces only commercial use of the highways, since

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said titles are to be construed in para materia.

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5.3

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Presented for Review, and sees the answering of such to be the cure for his situation, that of not

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Accused feels that the validity of his conclusions will be well weighed by his Questions

knowing the basis or source of authority presently in use against him.

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VI. CONCLUSION.

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6.1

In the absence of logical answers to questions arising out of this obvious conflict between

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State police powers and exclusive Federal commerce power, to regulate the use of the

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highways and instrumentalities of interstate commerce, absent the production of clear

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legislative intent to broaden the Session Laws' definition of the term "motor-vehicle" to

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include travel and communication, Accused has this Court's blessings and shall feel free

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to proceed as follows:

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1) As if “California Motor Vehicle Codes" is not applicable to "travel or communication

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between different localities or communities" nor to "use of the public," and.

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2) As if “California Motor Vehicle Codes" applies only to "transportation of persons or

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freight" via "motor vehicles" as is stated in “California Motor Vehicle Codes" legislative history,

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and,

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3) As if the terms "motor vehicle" and "transportation" when found in State or Federal statute always imply only commercial activity, always having that meaning and application

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manifest in 18 USC 31, 49 USC 31301(2) "commerce," and Black's, 6th, "Transportation," and

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as if said terms always expressly exclude private travel upon the highways, and,

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4) As if Congress has limited the State's licensing authority for use of the highways to

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commercial use, and that the State of California is bound by said limitation as it applies to

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licensing the use of the highways outlined in 49 USC Chapter 313 "COMMERCIAL MOTOR

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VEIDCLE OPERATORS," and,

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5) As if safe equipment, rules of the road, and speed limit statutes are still binding upon private travelers using the highways.

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6) As if “California Motor Vehicle Codes" imposes no requirements upon the private

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travelers upon the highways to obtain a driver's license, registration, license plates, license tabs,

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or auto insurance.

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7) As if “California Motor Vehicle Codes" imposes absolutely no requirement to carry identification (ID.) of any nature when using the highways for private travel.

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6.2

A reasonable individual would tend to believe as the Accused believes, given the narrow

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language and definite structure of legislation applicable to the use of the highways.

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Accused sees his conclusions as logical ones, drawn from a responsible assembly of

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pertinent authorities, and from an application of certain axioms.

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6.3

Accused has relied upon prevailing Laws for his claim. If the Plaintiff cannot provide

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logical answers to the questions presented herein, the Plaintiff cannot be held to have the

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law in its favor. If the “California Motor Vehicle Codes", cannot be shown to be law

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applicable to the Accused when he is not engaged in "transportation," the Plaintiff's

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complaint must be dismissed with prejudice for lack of jurisdiction over the person and

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activities of the Accused.

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6.4

This court should properly consider the serious ramifications to proceed further without lawful jurisdiction and should dismiss all alleged charges with prejudice.

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6.5

Further, Accused moves this court to dismiss the “traffic” claim with prejudice for failure

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to state a cause of action, lack of subject matter jurisdiction and failure to allege a factual

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basis for the claim.

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6.6

Accused so moves this court for said order dismissing the “traffic” “ticket” with prejudice.

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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

__________________________________________1/19/2009 Rik Munson Accused in Pro per

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