Where does state get standing to prosecute you in criminal case?

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Tennessee highway patrol officers enforce the commercial transportation law on the state's highways. (Photo THP)

Tennessee highway patrol officers enforce the commercial transportation law on the state’s highways. (Photo THP)

Tennessee and other state governments have a paternalistic view of citizens and no longer serve them representatively to protect their rights. Rather, they seek to lord it over the people for their own good by holding them in commercial subjection.

To keep up the high-minded game out of Nashville, the entity known as State of Tennessee necessarily has to violate an important and universal law that defense attorneys in Chattanooga and elsewhere routinely ignore in their workaday rush of generating cashflow from conflict and causes of action at law.

By David Tulis / NoogaRadio 92.7

But first of all, the doctrine in which this messianic protector turns you into a ward or child. It is called parens patriae, when the state is the legal protector of citizens unable to protect themselves. This concept resembles that of in loco parentis in which a school, say, acts in the place of a parent in the interest of a child.

In practice, the state assumes that role not just in specific instances of neglect or abuse, but in the case of every citizen and resident, presumptively.

Both doctrines as practiced violate common law standards derived from Christian legal origins of liberty and the rights of person and property.

Gaining standing to sue

We can see the presumptive parens patrie authority in what is effectively a fictitious basis upon which the state prosecutes criminal matters, as through the office of Neal Pinkston, the state’s district attorney in Hamilton County.

Neal Pinkston (Photo WDEF.com)

Neal Pinkston, state district attorney (Photo WDEF.com)

When Mr. Pinkston files a criminal charge by indictment or acts upon a criminal complaint from a police officer or sheriff’s deputy, he is operating as if the state of Tennessee were an existing and factual party who has sustained an injury by the actions of the accused.

However, no existing authority or custom requires him to account for the legal requirements for standing — that he show that the state has sustained an injury and that the prosecution of the individual with the punishment in view is a remedy.

Standing is an entry concept before any claim can be made, whether civil or criminal. Tennessee state government and its divisions, namely cities and counties, operate in rejection of the requirement to show an injury; the requirement remains in effect in civil cases, however.

The doctrine of standing permeates the Tennessee code. “A person standing in loco parentis may make health care decisions for a person who is an unemancipated minor,” TCA 34-6-403. When a state trooper plays the role of highwayman and steals your property under civil asset forfeiture, “[a]ny party who claims an interest in the property subject to forfeiture must first establish by a preponderance of the evidence that the party is an owner or interest holder in the property seized before other evidence is taken. The claimant has the burden of establishing standing to assert the claim” (TCA 39-11-708. Procedure for judicial forfeiture of property). One who is a victim of theft of services “shall have legal standing to report such violations to law enforcement and testify in support of corresponding criminal charges” (TCA 39-14-104.  Theft of services).

An issue in an appellate case

A piercing gaze of the standing problem is from a brief asking the supreme court of Tennessee for the hearing of the case State of Tennessee vs. Arthur J. Hirsch under a Nov. 27 filing deadline (Case no. M2016-00321-CCA-R3-CD).

A jury of his peers convicted Mr. Hirsch of four criminal counts in Lawrence County circuit court in December 2015 under the whimsical rule of one Judge Stella Hargrove. Jurors convicted him on one count of violating the vague “intent to go armed” statute and of three transportation counts (no license, no registration, no insurance). On the travel conflict, Mr. Hirsch argues he is exercising the right to travel the public right-of-way in a private conveyance. The gun law is unconstitutionally vague, he insists, because the statute is lawlessly beyond the constitution’s permission that the legislature may regulate “the wearing” of arms.

Mr. Hirsch is the “Fiddle Man of Lawrenceburg,” 65, known in nursing homes, the local hospital and in the county jail for his ministry of music and gospel teaching. The private businessman bachelor has devoted much of his life to reading law, largely in defense of his own free, private and innocent activities. Courts and authorities have treated him with considerable fear and consternation, as if he were an insurrectionist or militant, though Mr. Hirsch views his painful labors representatively, as though on behalf of Tennesseans who don’t know how to resist the claims of state against them. He made oral arguments in Nashville on July 18. 

Mr. Hirsch insists that “standing is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party’s claims.” Bochese v. Town, of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005).

Without standing, he avers, state government has no jurisdiction to prosecute him, particularly since he was exercising God-given, constitutionally guaranteed, inalienable and inherent rights.

He offers a rare insight as to the nature of the religious corporation which is the modern welfare, warfare and surveillance state, all of the 50 American states included in that definition shared by the U.S. government. Mr. Hirsch says the entity styled STATE OF TENNESSEE is a “fictitious plaintiff.”

“Appellant can find nowhere that the state is exempt from the three necessary elements of standing; and further, the elements apply to criminal as well as to civil cases. See City of Chattanooga v. Davis, 54 S.W.3d 248, 280 (Tenn. 2001)

“The state’s standing to invoke the trial court’s jurisdiction requires that the plaintiff allege in the indictment that a personal right has been violated, and that ‘tangible,’ ‘concrete,’ ‘particularized,’ ‘distinct and palpable’ injury-in-fact has been sustained therefrom, i.e., not presumed, conjectural or hypothetical injury. This the state failed to do in the charging instrument, i.e., the indictment.

“‘The requirement of standing, however, has a core component derived directly from the constitution. A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’ Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added) (see United for Separation of Church and State, Inc., 454 U.S. 464, 471-476).

‘Distinct, palpable’ injuries

Citing the Tennessee supreme court and the federal high courts, Mr. Hirsch describes the three elements required for the state to have standing to prosecute a criminal matter.

➤ “In order to establish standing, a party must demonstrate three essential elements. Metropolitan Air Research Testing Auth. Inc., v. Metropolitan Gov’t of Nashville and Durston County, 842 S.W.2d 611, 615… First, the party must demonstrate that it has suffered an injury which is ‘distinct and palpable,’ … and not conjectural or Second, the party must establish a causal connection between the injury and the conduct of which he complains… Third, it must be likely that a favorable decision will redress the injury…These elements are indispensable to the Plaintiff’s case, and must be supported by the same degree of evidence at each stage of litigation as other matters on which Plaintiff bears the burden of proof. Lujan 504 U.S. at 560,” Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765. (Emphasis added)

➤ “[CRIMINAL CASE] To establish one’s standing to bring an action, ‘a party must demonstrate (1) that it has sustained a distinct and palpable injury, (2) that the injury was caused by the challenged conduct, and (3) that the injury is apt to be redressed by a remedy the court is prepared to give.’ City of Chattanooga v. Davis, 54 S.W.3d 248, 280 (Tenn. 2001). (Emphasis added)

➤ “In determining whether the plaintiff has a personal stake sufficient to confer standing, the focus should be on whether the complaining party has alleged an injury in fact ***. ” Mayhew v. Wilder, 46 S.W.3rd 760, 767. (emphasis added)

➤ “The requirement of ‘standing’ is satisfied if it can be said that the plaintiff has alleged a legally protectible and tangible interest at stake in the litigation. Guidry v. Roberts, La.App. 331 So.2d 44, 50. . . . and [‘standing’] seeks to ensure that the Plaintiff has alleged such a personal stake in the outcome of the controversy as to assure concrete adverseness. Campaign Clean Water, Inc. v. Ruckleshaus, D.C. Va., 361 F.Supp. 689, 692.’ Black’s Law Dictionary, 6th Ed., p. 1405 (Emphasis added).”

Because Mr. Hirsch says that state government has not established itself as being a proper position in which to sue and allege a crime, his four convictions are void, the plaintiff-appellee “has no case, and the judgment order is void.”

His convictions should be overturned for a lack of jurisdiction and authority, and he offers four reasons

➤ A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render the judgment. Underwood v. Brown, 244 S.W. 2d 168 (Tenn. 1951). (Also see Richardson v. Mitchell, 237 S.W. 2d 577, (Tenn.Ct. App. 1950)

➤ “Where the court is without jurisdiction, it has no authority to do anything other than to dismiss the case.” Fontenot v. State, 932 S.W.2d 185. “Judicial action without jurisdiction is void.” Id (1996)

➤ “If the trial court is without subject matter jurisdiction of defendants case, conviction and sentence would be void ab initio.” State v. Swiger, 708 N.E.2d 1033, 125 Ohio.App.3d 456, dismissed, appeal not allowed, 694 N.E.2d 75, 82 Ohio St.3d 1411 (1998)

➤ “Without jurisdiction, criminal proceedings are a nullity.” State v. Inglin, 592 N.W.2d 666, 274 Wis.2d 764 (1999)

It is unlikely that Mr. Hirsch will get anywhere with these arguments, which were brushed aside in the appellate court opinion against him Sept. 28. They are of important substance legally and as a matter of principle. But the courts of Tennessee are high handed and injudicial, if Judge Hargroves’ stellar performance at trial is any indication.

The law, as R.J. Rushdoony says in his numerous works, is religion externalized. Mr. Hirsch’s challenge of parens patraie as a legal fraud touches very closely into the religious fabric of the modern welfare, warfare and progressive state of which Tennessee is typical among the 50 republics fenced into a corral by Washington. The state need not meet the test of standing because it is beyond such petty legal rules that bind others, but not this purported sovereign.

Sources:

R.J. Rushdoony, Christianity and the State (Vallecito, Calif., Ross House Books, 1986), see “Morality and the State,” pp. 136 ff.

Brief of Jay Hirsch before the court of appeals, the standing argument raised briefly on Page 37

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