The Anti-Government Movement Guidebook

This section contains tactics commonly used in the courtroom, during all types of proceedings. While most responses to any or all of these tactics fall squarely within judicial discretion (i.e., using the contempt power, facilitating agreement with the party), some responses to the tactics herein and in the following sections clearly implicate civil rights and must be taken with caution. These responses include any that deal with the party's speech, their rights to trial counsel and fair hearings, and the like. We should point out that courts generally have three avenues open to them: continuing the proceeding over objection, use of the contempt power to threaten or punish those who are disruptive, and accommodation or acquiescence to a party's request. As such, the universe of potential responses is not large. However, and in response to each individual tactic, creative and efficient solutions are urged.

Those responses which the court feels are soundly within its discretion might nonetheless have serious ramifications upon the court's ability to fulfill its mission -especially for those courts charged with implementing the Trial Court Performance Standards (TCPS) or some similar system for improving the court's performance. To that end, the court should become familiar with the TCPS, the text included herein, and consider alternatives that have a lesser impact on the court's ability to properly carry out its mission.

The sections on each tactic and response differ in that some are followed by a section titled "Additional Authority." This section exists where there is a rich body of law on point or closely related. In other sections, where the particular point is not as developed, additional authority is provided by way of annotation and gives reference to a starting point from which to search.

A. The Gold-Fringed Flag Issue

The members of antigovernment groups and common law courts frequently challenge the state courts' jurisdiction over the subject matter of the cases they are involved in by declaring that the gold fringe typically found on decorative flags transforms the court into a court of Admiralty jurisdiction. The bases underlying this belief are not entirely coherent, and adherents of different movements cite disparate, though related, reasons for this. A common theory is that in 1933, as the United States abandoned the gold standard, our country became "bankrupt." As a result, elected leaders have hidden this information from the public and worked to conceal it since. In 1938 there was allegedly a secret meeting of the nation's top attorneys, judges and United States Attorneys, in which they were told that the courts were operating in Admiralty jurisdiction - and they have been ever since.

Another variation on this theme is that ships traditionally fly the flag of their native country. Because of that, it is supposedly well known that whenever an individual is confronted with a proceeding before a particular flag, he or she is on notice that the laws of the country the flag represents are to govern that particular proceeding. In 1925, the United States Attorney General issued an Opinion in which he offered: "The placing of a fringe on the national flag, the dimensions of the flag and the arrangement of the stars in the union are matters of detail not controlled by statute, but are within the discretion of the President as Commander in Chief of the Army and Navy."²⁴ In 1959, President Eisenhower issued Executive Order No. 10834, in which he stated that, "A military flag is a flag that resembles the regular flag of the United States, except that it has a yellow fringe border on three sides." Consistent with the common conspiratorial angle from which the antigovernment groups often approach matters, those words have been interpreted to mean that whenever a court is displaying the gold-fringed flag that court has suspended "constitutional" law and is operating under military court martial authority - wherein individual rights are supposedly suspended.

With these beliefs, or some variation thereon, firmly in mind, members of antigovernment groups frequently refuse to acknowledge the jurisdiction of whatever court they happen to be in when this flag is present. Because they also believe that to object without caveat may subject them to the court's jurisdiction, they will file documents such as "notices of special appearance" and the like, in order to proffer an objection without submitting to the court's jurisdiction. Like many other tactics, this is one that can potentially use much of the court's valuable time and, if the court refuses to acknowledge the objection, to costly and time consuming appeals.

B. Typical Responses to the Flag Objection

Courts are generally left with three avenues when faced with this objection: 1) to note the objection and move on; 2) to become combative - even to the extreme of using the court's contempt power to sanction the participant; and 3) to understand that it may be faced with this problem repeatedly and take precautionary measures to alleviate it -namely, to replace their flag.

"The plaintiffs claims against the [defendants] must be dismissed because his factual predicate is incorrect as a matter of law... in flag manufacture, a fringe is not considered to be a part of the flag, and is without heraldic significance... even if the plaintiff could prove that [a yellow fringe] converted the state court's United States flag to a maritime flag of war, the Court cannot fathom how the display of a maritime war flag could limit the state court's jurisdiction."²⁵

Pursuant to the reasoning of this case, it appears well settled that there is no actual claim relating to the fringe on a flag and a court's jurisdiction. Be advised, however, that simply because there is no cognizable claim, courts cannot expect that litigants will not pursue an appeal or a federal civil rights claim against the judge whose court utilizes the gold-fringed flag.

2. The Contempt Power - a court may, of course, use its traditional contempt power to bring litigants in line with the expected norms of courtroom behavior. As with option 1, above, be forewarned that the likely result of the use of that power will be publicity, appellate review and further lack of cooperation from litigants.

3. Acquiescence - Another, and becoming more frequent, response is to acquiesce to the objection posed by the participant. This typically happens in one of two ways. First, the court has dealt with and is aware of the tactics of antigovernment groups, and takes proactive measures by simply replacing its flags with less ornate United States flags. This may be a permanent measure, or merely one that is taken before these individuals appear in the courtroom. Second, and where the court is unaware of this tactic but suddenly faced with the objection, the court simply acquiesces and replaces the flag. A suggestion from Judge Bonnie Sudderth of Texas: "flags are relatively inexpensive items. Replace the fringed flag with a less fancy version and this argument disappears with it."²⁶

C. Additional Authority

The following cases present additional discussion pertaining to the flag issue:

arguments made under the "flag code," 36 U.S.C. § 176(g) fail because the code does not proscribe conduct and is merely advisory in nature).

Though the precise contours of their philosophy differ among the various groups, almost all antigovernment movements adhere to a theory of a "sovereign" citizen. Essentially, they believe that our nation is made up of two types of people: those who are sovereign citizens by virtue of Article IV of the Constitution, and those who are "corporate" or "14^th Amendment" citizens by virtue of the ratification of the 14^th Amendment. The arguments put forth by these groups are generally incoherent, legally, and vary greatly among different groups and different speakers within those groups. They all rely on snippets of 19^th Century court opinions taken out of context, definitions from obsolete legal dictionaries and treatises, and misplaced interpretations of original intent. One of the more cogent - in the sense that it is readily followed - arguments is that there were no United States citizens prior to the ratification of the 14^th Amendment. All Americans were merely citizens of their own state and owed no allegiance to the federal government. As a result of that amendment, however, Congress created a new type of citizen - one who now enjoyed privileges conferred by the federal government and in turn answered to that government.

One of the ramifications of this belief is the dependent belief that, unless one specifically renounces his federal citizenship,²⁷ he is not the type of citizen originally contemplated by the Constitution. And, in their view, the Constitution requires all federal office holders to be the original or sovereign type of citizen, a state citizen rather than a United States citizen. As a result, all federal officers are holding office illegally and their laws and rules are thus constitutionally suspect. If the complaint, then, is that the federal government is suspect and thus so is its hold over these believers, it is unclear exactly why the state courts are correspondingly without authority. The explanations for that diverge widely. Essentially, members of these movements believe that they are able to renounce their federal citizenship by "quieting title" and by repudiating any possible "contractual" link to the government - such things as licenses, paying taxes, etc. They appear to just bootstrap their claims against the states onto the federal argument, and when they quiet title and become sovereign, all government's jurisdiction over them dissolves - except for the common law court to whose authority they have acquiesced.

Followers of these beliefs will typically attempt two types of argument in the state courts. Both go to the court's lack of jurisdiction, but for different reasons. The first is that they are sovereign and thus not answerable to state courts. They often support this contention by attempting to avail themselves of the "non resident alien" status described in Title 8 of the United States Code.²⁸ This argument will be made in conjunction with some variation of the discussion above. The second tactic will be to proclaim that they simply are not a "person" for purposes of whatever statute they are being charged or sued under - almost always a losing argument that is nonetheless very popular with tax protest groups.

Courts' responses to both of the usual arguments have been swift and decisive. These arguments have repeatedly lost at the appellate level. At the trial level, the court may respond in one of several ways, much like the flag issue in the preceding section.

The following cases present additional discussion pertaining to "sovereignty":

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  Young v. Internal Revenue Service, 596 F.Supp. 141 (N.D.Ind. 1984) (tax protester - district court calls sovereignty claim "preposterous").
  
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  United States v. Studley, 783 F.2d 934, 937 (9^th Cir. 1986) (tax protester case - calling argument "frivolous"),
  
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  United States v. Sloan, 939 F.2d 499, 500-501 (7^th Cir. 1991) (tax protester case - noting that "strange" argument had repeatedly been rejected in the courts).
  
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  United States v. Gerads, 999 F.2d 1255, 1256 (8^th Cir. 1993) (tax protester case - rejecting contention that defendants are "Free Citizens of the Republic of Minnesota" and thus not subject to federal income taxation).
  
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  Valldejuli v. Social Security Administration, 75 A.F.T.R2d 95-607
  
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  (N.D.Fla. 1994)(social security number protester - district court finds sovereign argument "meritless").
  

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  Uphoff v. Wisconsin Dept. of Revenue, 411 N.W.2d 428 (Wis. App.1987) (noting that appellant's "sovereign status" provides her no immunity from tax laws). This is an unpublished opinion. The fact that the court uses the term "appellant's sovereign status" is dangerous, for it is just the type of language these groups grasp and spin in order to legitimize their beliefs. The statement might have been better phrased "appellant's, claim of sovereign status.
  
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  State v. French, 883 P.2d 644, 653 (Haw. App. 1994) (using Black's Law Dictionary to define "person" as "a human being," and denying petitioner's challenge to traffic law).
  

Central to much, but not all, antigovernment doctrine is the belief that the "common law" is all that rightfully governs sovereign individuals. That much is quite clear. What is not so easy to discern is precisely what "common law" means to members of these groups. Typically, arguments contain an imprecise mixture of principles embodied in the Magna Carta, the English common law (as reported in Blackstone's Commentaries), the Declaration of Independence, the United States Constitution and the Bill of Rights. One of the tactics, or typical demands, of the antigovernment groups is to require that the court only apply this "common law." Where the court fails to do so, the members often effectively terminate the proceeding - becoming disruptive, entirely uncooperative, and usually either filibustering or refusing to speak at all.

As with other areas of antigovernment or sovereign citizen doctrine, the specific arguments vary among the particular groups and among the speakers within those groups. A common theory is that the American Common Law is the "unwritten set of laws that get their binding force from age-old usage and acceptance."³¹ It is not clear that any particular groups share a common vision of what the "common law" is and exactly how it should be applied, for there does not seem to be a working hierarchy among documents or a general theory for reconciling apparent contradictions among the documents the movement relies on. It does appear clear that the notion of "common law" is as much about a belief in the inalienable sovereignty of the individual and a certain mindset as it is about a given set of usable rules by which to govern a society. In fact, one commentator has described the "common law" as "more than a system of rules to be observed or a set of formal institutions that demand recognition; it is a world in which people live."³²

Given this understanding of the "common law," it is easy to imagine the importance adherents to these groups attach to it, and thus makes clear why they make this demand when in the state courts. Essentially, this demand is not so much a tactic as it is a way of doing business. Typically, the member will be in state court for some purpose. If it is a civil matter, he or she cannot be liable, because the court is corrupt and refuses to recognize the binding law of the Magna Carta, for example (though members have appeared in court as plaintiffs and had no problem using the state's legal system to his or her own ends). If this is a criminal matter, the member will again demand use of the common law, citing – and often shouting – pieces of wisdom taken out of context from one of the great historical documents.³³ Herein lies the "tactic": when the court refuses to recognize the member's objection or argument - as the court almost always will - the member will further object, completely disrupt the proceeding, will file an appeal based on the court's failure to adhere to the "proper law," and will sometimes bring a separate, outside suit against the judge for violating his or her civil rights.

In addition to the "common law" demand, members will often incorporate references to the Uniform Commercial code.³⁴ Adherents rely on a belief that, after the case of Erie Railroad Co. v. Tompkins³⁵ our courts abandoned the use of what we think of as the common law - that judge-made law that plays an integral role, along with the statutory and administrative law that makes up our system. Rather than the accepted reading of Erie, that is, that there is no federal common law (but that common law in the states is left intact and federal courts apply state substantive law and federal procedural law), these groups believe that the case abolished the use of all common law. To them, this both leaves a gap in our system of laws and is evidence that the Supreme Court declared that "commercial" law is now supreme. For this, they have adopted liberal readings of the Uniform Commercial Code, and demand that tortured readings of its provisions be used as statutory law in the proceedings of which they are a part.