Rebuttal To Def Mot To Dismiss

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

IN THE 7TH JUDICIAL CIRCUIT COURT OF MISSOURI COUNTY OF CLAY - DIVISION 2 William Duff, Plaintiff, v. OFFICER WILLIAM FRAZIER, (SERIAL 3092) AND OFFICER ALAN ROTH (SERIAL # 4090) Defendants.

) CASE NO. 07CY-CV06125 ) ) ACTION ) FOR TRESPASS, AND ) TRESPASS ON THE CASE ) ) ) VERIFIED )

SUGGESTIONS FOR MOTION TO DENY DEFENDANT MOTIONS FOR DISMISSAL Filed after 8-16-07 BACKGROUND Plaintiff, not waiving his right to default judgment in this case, if any is forthcoming, recognizes the

20

need for the premises of this controversy to be clear and understandable and that it is long overdue for

21

the Missouri Attorney Generals office to provide a substantive and complete and competent opinion

22

regarding the nature of the freedom of the people and specifically Plaintiff, within Missouri, takes up

23

the issues presented by the learned Assistant Attorney General and her motions to dismiss and invites

24

same to show by what authority the City and State profess to act respecting the controversy now before

25

this court respecting Plaintiff’s Right of Action emanating from his own private domain vs. The

26

City/State’s Right to enforce regulations emanating from it’s public domain.

27 28

Plaintiff contends and has adequately represented in the documents filed in this case; identifying the

29

Law, the Principals of Freedom and Self Governance and the attending Rights of Action associated

30

with his Life, his Liberty and his Property, all being solely within his own private domain, and that

31

same are superior to statutory rights of governments respecting the attending premise and are at the

32

heart of this controversy, to wit;

33 34

Plaintiff’s Affidavit of Citizenship Status (exhibit D filed in this action and entered here as if written in

35

full) fairly describes, and supports with Law and Principles of this society, the bright line boundary

36

existing around his own private domain, within which he possesses sole Dominion, and across which

37

the public domain of the State, city, and county or their agents may not intrude upon without Plaintiff’s

william duff

Page 1

12/30/2008

Create PDF with GO2PDF for free, if you wish to remove this line, click here to buy Virtual PDF Printer

38

CONSENT or evidence of his injury to another's person or property (bad act). To do so would be an

39

injury to plaintiff. As such, there exists no Lawful authority for the State/City or its agents to trespass

40

into plaintiff’s own private domain against his will or without his bad act that could activate a public

41

domain interest, even if it appears to some that such trespass might well be a “GOOD IDEA”.

42 43

ANALOGY; The one Law of this Society no one is excused not to know is; “We have agreed

44

not to harm (injure) one another”. In comprehension of that law, Plaintiff’s neighbor has no

45

lawful authority to trespass upon plaintiff’s own private domain without injuring plaintiff. Nor

46

does plaintiff’s neighbor enhance his lawful authority or lawful capacity to act in this regard by

47

combining his lawful authority with others in this society through the democratic process, in

48

that all those other neighbors also don’t possess the lawful authority to injure Plaintiff. If an

49

individual could not compel plaintiff to comply with his will without injuring plaintiff, under

50

no circumstances could a collection of his equals (peers) do so without injuring Plaintiff. And

51

further, that collective could not lawfully hire an agent to take that action on their behalf

52

without injuring Plaintiff. Since the state/city acquire all of its power and public domain from

53

the collective people themselves (as hired agents), through the democratic elements of our

54

society, The State/City also could not possibly have lawful authority to trespass upon Plaintiff’s

55

own private domain without injuring Plaintiff, in that the collective people did not have that

56

power to grant to its agent as a lawful form of action where the action injures one of the people

57

the State was instituted to secure the Rights to Life, Liberty and Property of the people

58

themselves, not even if the collective believed that grant to be a “GOOD IDEA”. This

59

principle operates in the same way and for the very same reasons respecting a state/city’s

60

attempted trespass upon the public Domain of the Federal Government. Federal Supreme

61

Court decisions are replete with cases denying the state such trespass. (see in-depth reasoning

62

of “private vs. public domain” at www.williamduff.com ) The State cannot claim it doesn’t’

63

understand this principle and at the same time expect to be taken seriously.

64 65

Obviously, Plaintiff does not consent respecting defendants charges and actions, nor have defendants

66

asserted that plaintiff has injured anyone or thing. Those facts are material to this controversy and

67

made unassailable by defendants own admissions. The offices held by defendants possessed of no

68

lawful authority to exceed its Lawful bounds, and no capacity to do so, save the choices of action made

william duff

Page 2

12/30/2008

Create PDF with GO2PDF for free, if you wish to remove this line, click here to buy Virtual PDF Printer

69

by the holder of that office; the defendants. It is manifest to plaintiff that defendants had to have

70

vacated their offices in order to perform the acts complained of here.

71 72

Plaintiff claims to possess Sovereign Immunity from the charges by defendants respecting the actions

73

defendants complain of, and plaintiff so stated and noticed these facts to defendants prior to defendants

74

bad acts (see Exhibit A of Plaintiff’s action) and to the muni court in which defendants sought remedy

75

for the charges they made (see plaintiff’s answer to the charges) and in plaintiff’s Notice and Demand,

76

also filed as exhibit in this action. As such, defendants acts must clearly be willful and wanton if in

77

fact the actions complained of by defendants are actually rights of action belonging to plaintiff as

78

plaintiff contends.

79 80

Plaintiff’s action sits to determine that very question. A mere claim of a statutory authority by the

81

State is not sufficient evidence that the State actually possesses the authority claimed. When a

82

reasonable challenge by one of the people is made to the States/Cities authority that challenge

83

necessarily implicates an action in the nature of a Writ of Quo Warranto; Show by what authority

84

does the State/City acts. A statutory claim, would not meet that duty. A statute is a claim by the State

85

of authority. It is not proof of the authority itself.

86 87

Should defendants wish to claim they were compelled in their bad acts by other office holders, this

88

Plaintiff will accept affidavits from each defendant naming those office holders and plaintiff will

89

gladly add them as defendants in this action seeking trespass on the case or vicarious liability.

90 91

REBUTTAL

92 93

Plaintiff invites this court to take cognizance of the facts and law applicable to this case as contained

94

herein and in all the documents heretofore filed in this action by plaintiff and that filed as Answer to

95

charges brought by defendants in the Muni Court of Kansas City, Mo. and all are entered here as if

96

written in full.

97 98

Defendant’s Motion to dismiss (1) fails to comprehend the nature of this action and (2) wrongly

99

“presumes” the muni court to have jurisdiction of the person of this Plaintiff and the subject matter,

william duff

Page 3

12/30/2008

Create PDF with GO2PDF for free, if you wish to remove this line, click here to buy Virtual PDF Printer

100

excepting, of course, by unlawful usurpation attended by force of arms. As such, the sufficiency of

101

defendants pleading is wanting, to wit;

102 103

(1) This action seeks damages for injuries done by defendants in that the injurious acts exceeded

104

the authority of the office of trust they held and were therefore a colorable assertion of

105

authority. This action also seeks, in the nature of Quo Warranto, a clear statement of; By what

106

Lawful Authority defendants claim to have acted? That element alone would stay the muni

107

proceedings until that question is explored and adjudicated.

108

(2) This action seeks to assert Plaintiff’s Right of Action as is referenced above and in the

109

documents filed in this case. This action makes no attempt to diminish the Municipal Courts

110

lawful jurisdiction but only to determine the Rights of Plaintiff. The Municipal Court does not

111

have the will, means, or authority to do so in its limited and inferior nature. The Rights of

112

action being adjudicated in this court of record must first be decided before it can be assumed

113

that the city possesses lawful authority to proceed in said Municipal Action. The State of

114

Missouri’s Judiciary has never adequately explored the premise presented here, though the

115

judiciary claims to have settled the issue. If plaintiff is wrong I invite proof to the contrary.

116

Defendants’ motion for dismissal fails to comprehend these unassailable facts.

117

(3) In rebuttal of defendant’s “factual background”, defendant’s assertions, and all of them are in

118

error and obviously only serves as an attempt to obscure Plaintiff’s bright line boundary

119

guarding his domain so that persons holding an office of trust have a plausible but wholly

120

unlawful cover story for entering into Plaintiff’s domain for the purpose of diminishing his

121

dominion thereof, to wit: plaintiff denies that he “resides” in Kansas City when that term is

122

legalese for him being a United States citizen “residing” anywhere. He is not and therefore

123

does not, He exists within his own private property at all times relevant to this action as has

124

been carefully described throughout the documents filed in this case. Defendants and their

125

superiors have never provided any competent evidence to the contrary. Cities, counties and

126

State office holders merely make the claim of authority, as defendants have done here, without

127

any competent proof whatsoever that the claim is actually within their grant of power, and

128

typically whatever court is hearing the matter accepts the claim on its face as evidence without

129

proof. This act alone injures plaintiff especially when he provides unassailable, competent

130

evidence of the facts he provides. Defendants facts are merely claims with nothing to support

william duff

Page 4

12/30/2008

Create PDF with GO2PDF for free, if you wish to remove this line, click here to buy Virtual PDF Printer

131

them beyond the testimony of government office holders who are completely incompetent to

132

testify before this court on any related issue without there being two non government witnesses

133

in support. Defendant’s Facts are in error for the following reasons; Plaintiff’s 1996 Buick is

134

not a “motor vehicle” as such term is comprehended by Missouri Statute. The car is private

135

property (chattel) belonging solely to William Duff and if it is anybody’s business, he uses it to

136

travel upon the “public right of way” for his own personal enjoyment and enterprise. (see City

137

of Chicago v. Collins et al., 175 Ill. 445, 51 N.E. 907 (Oct. 24, 1898) copy of the full decision

138

attached and accented on point. ) ; Respecting the license plate issue, defendants characterize it

139

thusly: “2). Plaintiff also admits that the vehicle was not registered in Missouri and bore a

140

license plate that Plaintiff fashioned himself” while the simple fact is that plaintiff has

141

attached his private tag to his car as an inducement for people like defendants to ignore him

142

and said tag represents no license as comprehended by the statute. It is merely camouflage

143

being used for good cause in a world full of predators. Irrespective of that fact, the tag is

144

the property of Plaintiff, and defendants taking of it can only be characterized as theft.

145 146

ARGUMENT

147 148

The action filed by defendants in the muni court is one of “presumed authority” to compel Mr. Duff to

149

use his property only in a way that is authorized by the State/city but with willful and wanton disregard

150

of plaintiff’s unwillingness to consent thereto upon subject matter that exists solely within Plaintiff’s

151

own private domain and without defendants alleging competent facts supporting an injury done by

152

plaintiff to another, while this action is one that seeks to explore that presumption and agree or

153

disagree therewith. Between the two jurisdictions, this jurisdiction is the only one that can fairly

154

negotiate and accomplish that exploration and render a dispositive judgment as to its validity. As such

155

this court is not robbing the muni court of its jurisdiction, it is simply staying the muni adjudication

156

while this court decides the greater issue; That being; if Plaintiff does have a right of action that covers

157

the acts complained of by defendants and has not ceded that right of action to the State/city the

158

presumption of authority would be unfounded. It must be irrelevant that a decision on the greater issue

159

in favor of plaintiff would void the muni action. The greater issue must first be decided before the

160

lesser issue can lawfully continue.

161

william duff

Page 5

12/30/2008

Create PDF with GO2PDF for free, if you wish to remove this line, click here to buy Virtual PDF Printer

162 163 164 165 166 167

As an anecdote, Plaintiff recognizes defendant’s demur and is grateful for the admissions to all facts alleged herein.

168

all the facts alleged by Plaintiff in this action. Further, it appears that the law is the only remaining

169

issue. Plaintiff also invites this court to take cognizance of the fact that defendants have provided no

170

law in this case that would or even could assail the law provided by Plaintiff in that, all cases cited by

171

defendants emanate from a democratic process supporting a statutory jurisdiction that fails to

172

comprehend, let alone, rebut the subject matter at issue.

COGNIZANCE REQUESTED: Defendants, by and through their attorney and their first motion to dismiss have provided admission to

173 174

Defendants, by and through their attorney and their motion to dismiss replevin, have again asserted

175

authorities applicable only to people operating according to State license and all the cases cited reflect

176

that fact. Plaintiff has demonstrated he does not operate his domain according to State license.

177

Defendants also fail to show an ownership interest in Plaintiff’s 1996 Buick, by the State, that could

178

alter Plaintiff’s right to own all; right, title and interest, in said property nor that the person who

179

claimed to own all right title and interest therein and who passed same to Plaintiff either did not so

180

own. Defendants have failed to provide any competent evidence that Plaintiff operates or is compelled

181

to operate according to State license respecting his use of his Rights to Liberty and property or that

182

plaintiff has no right to contract with others respecting his property. Defendants make claims but

183

provide no substantial proof in support.

184 185

AND THERE IS THE ISSUE AT CONTROVERSY;

186

authority (statute, decisional law upon statutes). But By what authority does the state claim to

187

determine, compel or prohibit Plaintiff’s choice of use of Plaintiff’s private property that exists solely

188

within plaintiff’s domain within which only Plaintiff owns and possesses sole dominion, and where

189

plaintiff has caused injury to no other. When the Attorney Generals office provides competent

190

evidence that comprehends and answers this simple question in favor of the State, Plaintiff will cease

191

being a legal burden on this society and seek a society that actually comprehends and respects the

192

principles of freedom and protection of Rights to Life, Liberty and Property this society was founded

193

on.

By What authority. Not Claim of

194

william duff

Page 6

12/30/2008

Create PDF with GO2PDF for free, if you wish to remove this line, click here to buy Virtual PDF Printer

195

IN SUMMARY;

196 197

Defendant’s, twice now, have declared plaintiffs action “fails to state a claim upon which relief could

198

be granted”, and twice now, have supported their arguments with court decisions who’s subject matter

199

represents people acting in accordance with State License or permission to do something. Even though

200

the documents, evidence and assertions filed in this action scream; “BY WHAT AUTHORITY

201

SHOULD A FREE MAN (specifically plaintiff) BE COMPELLED TO GET STATE LICENSE FOR

202

ACTS PERFORMED WITHIN HIS OWN PRIVATE DOMAN THAT INJURE NO ONE?”.

203

Defendants continue to cite rules and rulings that comprehend only what one can do in accordance

204

with State License. Defendant makes no attempt to answer the central question posed in this action.

205

Further, defendants consistently use evidences this court could not take cognizance of ,even if it were

206

inclined to do so, in that all comprehend a statutory jurisdiction, foreign to the jurisdiction of this court

207

and which fail to comprehend protected common law rights of plaintiff.1 Defendant’s have failed or

208

refused to address this subject matter, from its outset. Defendants imply that a State interest exists in

209

the property and rights being adjudicated here but finish short of defining exactly what that interest is.

210

Conversely, plaintiff has carefully outlined and defined each interest in detail, which by their premise

211

fully support plaintiff’s claim of Dominion over his private domain. As such it is defendant who fails

212

to state a defense this court could provide remedy for, not plaintiff. If fraud is to be found in actions of

213

the parties, it is defendants who embrace it, not plaintiff.

214 215 216 217 218

WHEREFORE, Plaintiff moves this court to deny Defendant’s Motions to Dismiss for good cause shown and for all other consideration this court can and should provide.

219 •

1

Article 34 of the Magna Carta (Great Charter of freedom that was made the law of this land by the Framers of our Constitution and is therefore part of the birthright of every American) 34. Henceforth the writ which is called Praecipe shall not be served on any one for any holding so as to cause a free man to lose his court .( "Praecipe" = order to show cause against property. "Rights" are property. A free man (i.e. nobleman) has his own land and people (slaves). The king may not force a nobleman into the king’s court in such a way that the nobleman would be deprived of his own court.) As such, “failure to state a claim” is not available in a court of record proceeding according to the common law in this case because the entire subject matter is contained within plaintiffs domain.

william duff

Page 7

12/30/2008

Create PDF with GO2PDF for free, if you wish to remove this line, click here to buy Virtual PDF Printer

220 221 222 223 224 225 226 227 228 229

____________________ Date _______ William Duff Plaintiff Cc: William Duff to: [email protected], William Frazier and Alan Roth to: 1001 NW Barry Rd. Place Kansas City, Missouri C/O KCMO Police Department – North Division EMILY A. DODGE Assistant Attorney General at; [email protected] and [email protected]

william duff

Page 8

12/30/2008

Create PDF with GO2PDF for free, if you wish to remove this line, click here to buy Virtual PDF Printer