http://www.austlii.edu.au/au/legis/nsw/num_act/ca1824n1147.pdf
Tuesday, May 20, 2014
Thursday, May 15, 2014
STATUTORY INTERPRETATION - INTRINSIC AND EXTRINSIC AIDS
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Intrinsic - Internal Aids – within the statute itself
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Other enacting words
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An
examination of the whole of a statute, or at least those Parts which
deal with the subject matter of the provision to be interpreted, should
give some indication of the overall purpose of the legislation. It may
show that a particular interpretation of that provision will lead to
absurdity when taken with another section.
Explanatory notes as an aid to interpretation
The use of explanatory notes in statutory interpretation is new; the notes were first
used by Parliament alongside bills in 1999.
The
first judicial reference to them by the House of Lords appears to be by Lord
Hope in
R v A [2001] HL a rape case, when he made the following
comment:
"But I think that it is legitimate to refer for the purposes of clarification to the notes to this section in the explanatory notes to the Act prepared by the Home Office. I would use it in the same way as I would use the explanatory note attached to a statutory instrument:..."
However
the authority for their use is the
ruling on
R (Westminster City Council) v National Asylum Support Service
[2002] HL, Lord Steyn made it clear that he considered Explanatory Notes
admissible, even when the statute was unambiguous:
"… Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible as aids to construction."and later..."What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted."
Again Lord Steyn referred to explanatory notes in
R v Chief Constable of South Yorkshire Police ex parte LS and
Marper [2004] HL
"Explanatory Notes are not endorsed by Parliament. On the other hand, in so far as they cast light on the setting of a statute, and the mischief at which it is aimed, they are admissible in aid of construction of the statute. After all, they may potentially contain much more immediate and valuable material than other aids regularly used by the courts, such as Law Commission Reports, Government Committee reports, Green Papers, and so forth."
Some Acts have their own interpretation sections
Administration of Estates Act 1925
"Personal chattels" mean carriages, horses, stable furniture and effects...
Theft Act 1968
Provides a definition of theft and subsequent sections interpret the definition. E.g. ‘property’ includes money.
Aids found in all Acts
Long title
It
became established in the nineteenth century that the long title could
be considered as an aid to interpretation. The long title should be read
as part of the context, "as the plainest of all the guides to the
general objectives of a statute" (Lord Simon in The Black-Clawson Case [1975]).
Preamble
When
there is a preamble it is generally in its recitals that the mischief
to be remedied and the scope of the Act are described. It is therefore
clearly permissible to have recourse to it as an aid to construing the
enacting provisions.
Preambles ceased to be used in the nineteenth century, except in private Acts.
Preambles ceased to be used in the nineteenth century, except in private Acts.
Short title
There is some question whether the short title should be used to resolve doubt.
Headings, side-notes
Headings, side-notes may be considered as part of the context.
Punctuation
Not used in older statutes.
See the story of Sir Roger Casement, hanged because of a comma,
here.
Punctuation could be used as aids in cases of ambiguity as could
the long title of the Act, headings and side note.
Lord Lowry;
"To ignore punctuation disregards the reality that literate people, such as parliamentary draftsmen, do punctuate what they write."
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External aids
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Interpretation Act 1978
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(This consolidated the 1889 Act and other Acts)
He=she;
Singular=plural;
Person=corporations;
Writing=any other way of producing visible form.
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Textbooks and eminent writers on law
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Can
be cited as authoritative statements of the law of their time, and
therefore of the present law if it is shown not to have changed.
The reputation of the author and the date of the book are important.
The Institutes of the Laws of England
by Sir Edward Coke and Commentaries on the Laws of England by William Blackstone. Importantly, these legal authorities are not law and, as such, their opinions are merely persuasive.
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R v Shivpuri (1987)
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A case on criminal attempts, the courts acknowledged academic argument as an aid to interpretation.
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Other cases
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Cases
from any branch of law and from any jurisdiction are used by the courts to
assist interpretation. So, in criminal manslaughter the courts used the
civil case of Donoghue v Stevenson [1932] to assist in deciding
the scope of negligence, and in
Re: A Children, they court used a Rabbinic judgment from New York.
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Dictionaries
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Notably dictionaries of the time will be used to find out the meaning of a word in an Act.
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Treaties
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Reports of law reform bodies, such
as the Law Commission, and advisory committees
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Which
lead to the passing of the Act can be used to discover the reform,
which the statute intended to make. These have become acceptable since
the
Black Clawson Case (1975).
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White Papers
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Occasionally reference will be made to discussion documents produced by the
government even before a Bill has been drafted.
Such reference is found in W v MPC [2006] on whether the word 'remove' meant a police officer or CSO could use force to take an under 16 year-old home from a 'dispersal area', they a said that it did.
In
paragraph 31 the Court of Appeal (Civil Division) referred to White Paper to
assist them decide the scope of the Act.
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Historical setting
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A judge may consider the historical setting of the provision that is being interpreted.
Spath Holme (2000) spent considerable time doing precisely this.
Practice
The practice followed in the past may be a guide to interpretation. For example, the practice of eminent
conveyancers where the technical meaning of a word or phrase used in conveyancing is in issue.
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Hansard
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The
official daily reports and debates in Parliament proceedings (named
after the compiler for a long period) can be used as an external aid in
statutory interpretation.
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Lord Denning;
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Hansard used to establish why the Equal Pay Act had been passed.
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| div style="margin-bottom: 0; margin-top: 0;"> Pepper v Hart concerned the construction of words in a Finance Act. | |
The House of Lords relaxed the old rule that excluded reference to Hansard for
the purposes of statutory interpretation; so as to ensure that taxation was not
imposed in a way that the Treasury had "assured" the House of Commons was not
intended.
Hansard
may be considered but only where the words of the Act are ambiguous or obscure
or lead to an absurdity.
Even then, Hansard should only be
used if there was a clear statement by the Minister introducing the legislation,
which would resolve the ambiguity or absurdity.
Until Pepper v Hart
using Hansard in that way would have been regarded as a breach of Parliamentary
privilege.
[Pepper v Hart merely provides a limited exception to the general rule that resort to Hansard is inadmissible]
The Rent Acts (Maximum Fair Rent) Order 1999 was made under
section 31 of the Landlord and Tenant Act 1985.
One question was
whether section 31 gave the ministers power to make the Order and in what
circumstances. The Act may have been past to control inflation which was not now
such a pressing problem.
The Order restricted the ability of landlords to increase their tenants’ rent.
Spath Holme was a landlord and challenged the legality of the Order, because the statute was not clear.
Other aids
Travaux Preparatoires
Original International Conventions and preparatory material can be used, following the case of
Fothergill v Monarch Airlines (1980)
Sunday, May 4, 2014
Thursday, May 1, 2014
SUPREME COURT OF VICTORIA - COURT OF APPEAL – A L v THE QUEEN [2014] VSCA 81 (1 MAY 2014)
Supreme Court of Victoria - Court of Appeal
A L v The Queen [2014] VSCA 81 (1 May 2014)
Last Updated: 1 May 2014COURT OF APPEAL
S APCR 2013 0256
AL
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Applicant
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v
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THE QUEEN
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Respondent
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---
JUDGES
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MAXWELL P, WEINBERG and COGHLAN JJA
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WHERE HELD
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MELBOURNE
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DATE OF HEARING
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13 March 2014
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DATE OF JUDGMENT
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1 May 2014
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MEDIUM NEUTRAL CITATION
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[2014] VSCA 81
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JUDGMENT APPEALED FROM
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Not applicable
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CRIMINAL LAW – Appeal – Interlocutory appeal – Application for leave to appeal – Applicant on bail – Breach of bail – Breach continuing at date of hearing – Whether grant of leave to appeal ‘in the interests of justice’ – Serious breach of undertaking of bail – Application refused without determination of merits – Criminal Procedure Act 2009 (Vic) ss 295(2), 297(1).
APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Mr D Gurvich with
Mr R Edney
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Doogue O’Brien George
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For the Respondent
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Mr O P Holdenson QC with
Mr D J Lane and Ms K Breckweg |
Commonwealth Director of Public Prosecutions
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WEINBERG JA
COGHLAN JA:
1 The applicant is facing trial on serious drug offences under the Commonwealth Criminal Code Act 1995 (Cth). On 11 December 2013, in a pre-trial ruling, the trial judge rejected a defence argument concerning the mental element of the relevant offences. On 8 January 2014, the applicant’s solicitors filed an application for leave to appeal against that interlocutory decision, pursuant to s 295 of the Criminal Procedure Act 2009 (Vic) (‘CPA’).
2 The hearing of the application for leave was fixed for hearing on 13 March 2014. Shortly before the hearing, however, the Court was informed that the applicant had failed to answer his bail and was still at large. When the application for leave came on for hearing, the Court invited submissions from the parties as to whether the application should proceed, given that the applicant had absconded while on bail.
3 After hearing submissions, we announced that the application for leave would be refused, without a determination on the merits. We said that we would give our reasons in due course. These are those reasons.
The discretion to grant leave to appeal
4 An appeal against an interlocutory decision is by leave only.[1] The granting of leave is circumscribed by s 297(1) of the CPA, which provides as follows:
5 In the present case, we were not satisfied that it was in the interests of justice to grant leave to appeal. That being so, the discretion to grant leave was not enlivened, and the application for leave had to be refused.297 When leave to appeal may be given (1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may—
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.[2]
6 In our view, the applicant’s breach of bail — which we were told had occurred in January 2014 and was continuing — was a serious breach of the undertaking which he had given to the County Court, that being the basis upon which he was granted bail. To have permitted him to invoke the interlocutory jurisdiction of this Court while that breach continued would, in our view, have been tantamount to condoning the breach.
7 It should be emphasised that what was in issue here was the exercise of a statutory discretion premised on a state of satisfaction being established. It follows that little assistance is to be derived from decisions in other jurisdictions, under different rules (both common law and statutory), about whether — and when — a criminal trial or appeal can proceed in the absence of the accused/convicted person.[3]
8 The closest analogy, in our view, is with the decision of the Full Federal Court in Schoenmakers v Director of Public Prosecutions.[4] In that case, Mr Schoenmakers was appealing against an extradition order and had been released on bail pending the hearing of the appeal. When the appeal came on for hearing, he purported to appear by counsel but was not present in person. The Full Court dismissed the appeal, holding that his failure to comply with the conditions of his bail was ‘a sufficiently serious breach of an interlocutory order’ to enliven the Court’s jurisdiction, as a matter of implied incidental power, to dismiss the appeal.[5]
9 There is no relevant distinction, in our view, between the breach of bail in that case and the breach in the present case. Both involve contumelious conduct of a most serious kind.
10 The applicant’s breach of his undertaking of bail is not merely reprehensible but is criminal conduct in itself.[6] Given that he is on bail with respect to the very charges the subject of the interlocutory application, his conduct in breaching bail was directly relevant to the Court’s consideration of whether to exercise its discretion in his favour.[7]
11 We should add, for completeness, that there may be cases where it would be in the interests of justice to grant leave to appeal notwithstanding the absence of the applicant. If, for example, there were some manifest defect in the proceedings, it might be necessary to deal with the point without delay.
12 It must not be forgotten that this was an application for leave to appeal from an interlocutory decision, not an appeal against conviction. The Court’s assessment of where the interests of justice lie will ordinarily be different where what is under challenge is a pre-trial ruling, not a conviction or a sentence.
The position of the Commonwealth Director
13 Senior counsel for the Commonwealth Director of Public Prosecutions submitted that the Court should proceed to hear the application for leave to appeal on its merits, notwithstanding the breach of bail. Counsel submitted that, as the point of law at issue was of general importance, it was in the public interest to have a ruling from this Court on the question.
14 This was a most surprising position for the Director to adopt. We would have expected the Director to resist, on public policy grounds, an attempt by a person who was in breach of his bail to seek a favourable exercise of the Court’s discretion. Pragmatism would appear to have triumphed over principle.
15 Even from a practical point of view, the Director’s position was puzzling. First, senior counsel for the Director maintained that the judge’s ruling was clearly correct. If that was so, there would have been no basis for a grant of leave in any event. Secondly, the Director did not need to support this particular application in order to have the point of law considered by this Court. It would always be open to the Director to ask this judge, or a judge in a different trial, to state a case under s 302 of the CPA.
Failure to notify the Registry
16 It is a matter of serious concern that, although both parties had been aware for some time that the applicant had failed to comply with his bail conditions, this fact was not notified to the Registry until shortly before the scheduled hearing. We accept that counsel for the applicant had formed the view that the application could proceed in his absence, and that the Court therefore did not need to be notified. For the reasons we have given, however, this view was mistaken.
17 In any case, we would have expected the fact of the applicant’s having absconded to be drawn promptly to the Court’s attention. As should be well known to practitioners, interlocutory applications are given priority because of their implications for trial listings. The applicant’s disappearance was — at a minimum — relevant to a consideration of whether he should receive the usual priority.
Moreover, the late notification meant that the members of the Court had already spent a good deal of time preparing for a hearing which, in the event, did not take place.
Failure to issue a warrant
18 Senior counsel for the Director advised, in response to a question from the Court, that no warrant had yet been issued for the arrest of the applicant. The explanation put forward was that his address was not known. This was, with respect, a quite unsatisfactory explanation. Once a breach of bail has been notified, especially in a case of serious offending like this, a warrant should be obtained without delay. The apparent lack of urgency shown in the present case seems inexplicable.
- - -
[1] CPA s 295(2).
[2] Emphasis added.
[3] See, eg, R v Hallocoglu (1992) 29 NSWLR 67, 72–73; R v Gooch [1998] EWCA Crim 132; [1998] 1 WLR 1100; R v Charles and Tucker [2005] EWCA Crim 651; [2001] 2 Cr App R 15; Benedetto v The Queen [2003] EWHC 174; [2003] 1 WLR 1545, 1563 [48].
[4] (1991) 30 FCR 488.
[5] Ibid 489. See also Wen Shao Zen v Minister [1993] FCA 67.
[6] Bail Act 1977 (Vic) s 30(1).
[7] See Jopar v The Queen (2013) 275 FLR 454, 461 [36].
http://www.austlii.edu.au/au/cases/vic/VSCA/2014/81.html
FEDERAL COURT STRIKES DOWN WI'S "DISCRIMINATORY" VOTER ID AS UNCONSTITUTIONAL
Posted by Brendan Fischer on April 30, 2014
In
a landmark decision, a federal judge in Milwaukee has struck down
Wisconsin's strict voter ID restrictions as both an unconstitutional
burden on the right to vote and, for the first time, a violation of
Section 2 of the Voting Rights Act based on the law's "disproportionate
racial impact and discriminatory result" of depriving "the right of
Black and Latino citizens to vote on account of race or color."
Federal Judge Lynn Adelman held that Wisconsin's 2011 Act 23 violated the U.S. Constitution since on balance, the burdens imposed on the voting rights of nearly 300,000 Wisconsin citizens who lack ID -- roughly 9 percent of Wisconsin voters -- are not outweighed by the state interest in stopping a statistically insignificant rate of "fraud." He said that the extensive evidence of the law's impact on eligible Wisconsin voters, and the lack of evidence of voter fraud in the state, led to a different result than the 2008 Crawford v. Marion case, in which the U.S. Supreme Court upheld Indiana's voter ID law.
The decision cut to the heart of the debate over voter ID, highlighting the absolute lack of fraud that might justify voter ID laws, and describing extensive testimony showing the very real impact that the laws would have on hundreds of thousands of otherwise eligible voters, many of whom are people of color.
The only type of fraud the voter ID law would prevent is voter impersonation, yet "virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future," Judge Adelman wrote. "A person would have to be insane to commit voter-impersonation fraud."
"[I]t is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes," he wrote.
In addition to violating the U.S. Constitution, Judge Adelman found that Wisconsin's voter ID law violates Section 2 of the Voting Rights Act, which still remains on the books after the U.S. Supreme Court last year struck down the pre-clearance provisions in Section 5. This is the first decision finding a voter ID law violates section 2, which prohibits states from imposing a voting restriction that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
Citing extensive evidence that African-American and Latino voters in Wisconsin were between 1.4 times and 2.6 times as likely as white voters to lack a driver's license or photo ID, Judge Adelman found that Act 23 creates a situation "in which a disproportionate share of the Black and Latino populations must shoulder an additional burden in order to exercise the right to vote."
When Republicans passed Wisconsin's restrictive American Legislative Exchange Council (ALEC)-inspired legislation in 2011, evidence of the legislation's disproportionate impact on people of color was apparent, and the lack of documented evidence of voter fraud in the state was equally apparent. Yet they pushed forward nonetheless -- and in the wake of court challenges to the legislation, Wisconsin Governor Scott Walker and Assembly Majority Leader Robin Vos (until recently the ALEC State Chair for Wisconsin) have vowed to call a special session to pass another version of the law.
Judge Adelman said he would review any changes to the law, yet noted in his decision that "it is difficult to see how an amendment to the photo ID requirement could remove its disproportionate racial impact and discriminatory result."
"[C]ases of potential voter-impersonation fraud occur so infrequently that no rational person familiar with the relevant facts could be concerned about them," Judge Adelman wrote. Given that the severe penalties for voter impersonation "are extremely high in comparison to the potential benefits" of one additional vote for a candidate, he wrote, "a person would have to be insane to commit voter-impersonation fraud."
Experts testified that voter ID restrictions do nothing to promote public confidence in the electoral process. In fact, Judge Adelman noted, the way that politicians and right-wing news outlets promote voter ID can actually have the opposite effect, by "creat[ing] the false perception that voter-impersonation fraud is widespread, thereby needlessly undermining the public’s confidence in the electoral process."
“Perhaps the reason why photo ID requirements have no effect on confidence or trust in the electoral process is that such laws undermine the public’s confidence in the electoral process as much as they promote it,” Judge Adelman wrote.
Judge Adelman held that "Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group," as long as "the disproportionate impact results from the interaction of the voting practice with the effects of past or present discrimination and is not merely a product of chance."
"[T]he reason Blacks and Latinos are disproportionately likely to lack an ID," Judge Adelman wrote, is because in Wisconsin "they are disproportionately likely to live in poverty, which in turn is traceable to the effects of discrimination in areas such as education, employment, and housing."
He noted that Milwaukee (where the greatest number of Wisconsin's people of color live) is one of the most highly segregated cities in the country, and referenced "one study of the Milwaukee labor market, conducted in the early 2000s, which showed that white job applicants received call-back interviews more than twice as frequently as Black applicants, and that even white applicants with criminal records received call-back interviews more frequently than Black applicants."
Wisconsinites who don't have the forms of ID required under the law faced a complicated, costly, and time-consuming process to obtain the necessary identification, burdens that are more substantial for those with lower incomes than middle- and upper-class citizens. For example, 90 of the 92 Department of Motor Vehicle offices in the state close before 5:00pm, so a person must take time off from work, often foregoing pay, in order to get an ID. Many eligible voters must visit multiple government offices to gather necessary documents like birth certificates, requiring even more time off work. Because those without ID don't drive, they often rely on public transport, which in many cases won't go to the necessary agencies.
Studies show that "even small increases in the costs of voting can deter a person from voting, since the benefits of voting are slight," so these burdens, which disproportionately affect people of color, can have the effect of suppressing the vote.
Wisconsin's Republican Attorney General J.B. Van Hollen has also vowed to appeal Judge Adelman's decision to the 7th Circuit. However, because the ruling has broken new ground, its fate on appeal is an open question -- although the appeal does become more interesting given that it could appear before 7th Circuit Judge Richard Posner, who last December expressed regret for an earlier decision upholding Indiana's voter ID law.
Judge Adelman's decision adds a federal layer to Wisconsin's contentious voter ID battles. A state court blocked the law in 2012 as a violation of the Wisconsin constitution (three other courts have done the same, most recently in Arkansas.) An appeal of that state court decision was argued before the Wisconsin Supreme Court earlier this year. However, even if the Wisconsin Supreme Court were to uphold the law, it would remain blocked thanks to Judge Adelman's ruling.
Given the timeline for an appeal of the federal decision, it appears unlikely that voter ID will be in effect for the 2014 elections.
http://www.prwatch.org/news/2014/04/12461/federal-court-strikes-down-wi-voter-id-unconstitutional
 |
| You gotta love political humour, ooops, i meant political propaganda |
Federal Judge Lynn Adelman held that Wisconsin's 2011 Act 23 violated the U.S. Constitution since on balance, the burdens imposed on the voting rights of nearly 300,000 Wisconsin citizens who lack ID -- roughly 9 percent of Wisconsin voters -- are not outweighed by the state interest in stopping a statistically insignificant rate of "fraud." He said that the extensive evidence of the law's impact on eligible Wisconsin voters, and the lack of evidence of voter fraud in the state, led to a different result than the 2008 Crawford v. Marion case, in which the U.S. Supreme Court upheld Indiana's voter ID law.
The decision cut to the heart of the debate over voter ID, highlighting the absolute lack of fraud that might justify voter ID laws, and describing extensive testimony showing the very real impact that the laws would have on hundreds of thousands of otherwise eligible voters, many of whom are people of color.
The only type of fraud the voter ID law would prevent is voter impersonation, yet "virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future," Judge Adelman wrote. "A person would have to be insane to commit voter-impersonation fraud."
"[I]t is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes," he wrote.
"A disproportionate share of the Black and Latino populations must shoulder an additional burden in order to exercise the right to vote"
Many of the legitimate votes potentially blocked by Act 23, had the law been upheld, would have been those of people of color.In addition to violating the U.S. Constitution, Judge Adelman found that Wisconsin's voter ID law violates Section 2 of the Voting Rights Act, which still remains on the books after the U.S. Supreme Court last year struck down the pre-clearance provisions in Section 5. This is the first decision finding a voter ID law violates section 2, which prohibits states from imposing a voting restriction that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
Citing extensive evidence that African-American and Latino voters in Wisconsin were between 1.4 times and 2.6 times as likely as white voters to lack a driver's license or photo ID, Judge Adelman found that Act 23 creates a situation "in which a disproportionate share of the Black and Latino populations must shoulder an additional burden in order to exercise the right to vote."
When Republicans passed Wisconsin's restrictive American Legislative Exchange Council (ALEC)-inspired legislation in 2011, evidence of the legislation's disproportionate impact on people of color was apparent, and the lack of documented evidence of voter fraud in the state was equally apparent. Yet they pushed forward nonetheless -- and in the wake of court challenges to the legislation, Wisconsin Governor Scott Walker and Assembly Majority Leader Robin Vos (until recently the ALEC State Chair for Wisconsin) have vowed to call a special session to pass another version of the law.
Judge Adelman said he would review any changes to the law, yet noted in his decision that "it is difficult to see how an amendment to the photo ID requirement could remove its disproportionate racial impact and discriminatory result."
"A person would have to be insane to commit voter-impersonation fraud"
Besides breaking new ground for voting rights, the decision contains powerful language countering claims from voter fraud hucksters like True the Vote and politicians like Governor Walker and Republican National Committee Chair Reince Priebus, who have claimed that voter fraud is rampant in Wisconsin and can account for one or two percentage points in Wisconsin elections. Based on extensive evidence and expert testimony, Judge Adelman repudiated those claims."[C]ases of potential voter-impersonation fraud occur so infrequently that no rational person familiar with the relevant facts could be concerned about them," Judge Adelman wrote. Given that the severe penalties for voter impersonation "are extremely high in comparison to the potential benefits" of one additional vote for a candidate, he wrote, "a person would have to be insane to commit voter-impersonation fraud."
Experts testified that voter ID restrictions do nothing to promote public confidence in the electoral process. In fact, Judge Adelman noted, the way that politicians and right-wing news outlets promote voter ID can actually have the opposite effect, by "creat[ing] the false perception that voter-impersonation fraud is widespread, thereby needlessly undermining the public’s confidence in the electoral process."
“Perhaps the reason why photo ID requirements have no effect on confidence or trust in the electoral process is that such laws undermine the public’s confidence in the electoral process as much as they promote it,” Judge Adelman wrote.
"The disproportionate impact of the photo ID requirement results from the interaction of the requirement with the effects of past or present discrimination"
"This is the first full ruling on how to adjudicate voter id vote denial cases under section 2" of the Voting Rights Act, says election law expert Rick Hasen, a Chancellor's Professor of Law and Political Science at the UC Irvine School of Law. The decision provides new hope that what remains of the Voting Rights Act can still halt new voter suppression measures, although Hasen notes “it is not clear whether the appellate courts will agree or not agree with [Adelman's] approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability."Judge Adelman held that "Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group," as long as "the disproportionate impact results from the interaction of the voting practice with the effects of past or present discrimination and is not merely a product of chance."
"[T]he reason Blacks and Latinos are disproportionately likely to lack an ID," Judge Adelman wrote, is because in Wisconsin "they are disproportionately likely to live in poverty, which in turn is traceable to the effects of discrimination in areas such as education, employment, and housing."
He noted that Milwaukee (where the greatest number of Wisconsin's people of color live) is one of the most highly segregated cities in the country, and referenced "one study of the Milwaukee labor market, conducted in the early 2000s, which showed that white job applicants received call-back interviews more than twice as frequently as Black applicants, and that even white applicants with criminal records received call-back interviews more frequently than Black applicants."
Wisconsinites who don't have the forms of ID required under the law faced a complicated, costly, and time-consuming process to obtain the necessary identification, burdens that are more substantial for those with lower incomes than middle- and upper-class citizens. For example, 90 of the 92 Department of Motor Vehicle offices in the state close before 5:00pm, so a person must take time off from work, often foregoing pay, in order to get an ID. Many eligible voters must visit multiple government offices to gather necessary documents like birth certificates, requiring even more time off work. Because those without ID don't drive, they often rely on public transport, which in many cases won't go to the necessary agencies.
Studies show that "even small increases in the costs of voting can deter a person from voting, since the benefits of voting are slight," so these burdens, which disproportionately affect people of color, can have the effect of suppressing the vote.
Voter ID Unlikely for 2014 Elections
"We are pleased the court ruled on the side of protecting every American's right to vote," said Mike Wilder, co-chair of the Wisconsin African-American Roundtable. "At a time when Big Money and other cheaters are trying to hijack our democracy, it's important we remove the barriers to voting. We need every voice heard for a real democracy."Wisconsin's Republican Attorney General J.B. Van Hollen has also vowed to appeal Judge Adelman's decision to the 7th Circuit. However, because the ruling has broken new ground, its fate on appeal is an open question -- although the appeal does become more interesting given that it could appear before 7th Circuit Judge Richard Posner, who last December expressed regret for an earlier decision upholding Indiana's voter ID law.
Judge Adelman's decision adds a federal layer to Wisconsin's contentious voter ID battles. A state court blocked the law in 2012 as a violation of the Wisconsin constitution (three other courts have done the same, most recently in Arkansas.) An appeal of that state court decision was argued before the Wisconsin Supreme Court earlier this year. However, even if the Wisconsin Supreme Court were to uphold the law, it would remain blocked thanks to Judge Adelman's ruling.
Given the timeline for an appeal of the federal decision, it appears unlikely that voter ID will be in effect for the 2014 elections.
http://www.prwatch.org/news/2014/04/12461/federal-court-strikes-down-wi-voter-id-unconstitutional
Saturday, April 26, 2014
PROPERTY TAX
Paying property tax is one of those things which most
Americans have accepted as if it was a way of life.
However, most people are unaware as to why they pay
property tax in the first place. If you knew why you pay
this tax, you could then choose whether or not to pay
it, because like all taxes in this country, the property
tax is not a mandatory tax. If you knew the truth, would
you continue to pay?
Some of you will say that property tax goes to support
education, and if you don't pay the property tax then
you don't care anything about educating our children.
This is the cry of all good socialists, the enemies of
Americanism and the principles of limited government and
natural rights.
Anyone who has researched the educational system even a
little, knows that the United States Department of
Education has based its system on the Soviet education
system. This was proven by former Senior member of
Ronald Reagan's Department of Education, a courageous
woman who surreptitiously removed documents, then
exposed the truth for all to know.
Let's get back to the argument made by socialists
concerning how property tax money is used for education,
and if you don't pay it then you are against education.
My response is that money is the fuels for
bureaucracies. When a system (like education) is failing
to properly educate our children, but rather is making
them into mindless, unthinking, docile, obedient
servants of government, effective slaves for the work
force, then by fueling the system you are simply
guaranteeing that it will continue to do what it is
doing. If the results of the current system are
undesirable, then stop giving it fuel and it will cease
to operate.
Now that we have dealt with the principal naysayers,
let's talk about the property tax itself.
There are only two kinds of taxes - direct and indirect.
Direct taxes are prohibited by the Constitution - not
once but twice. Direct taxes are taxes on that which you
already own, and there may be no direct taxes under any
circumstances short of a state of war, and then only if
the taxes are equally apportioned among the Union
states.
Apportionment works like this: say the United States
government want to raise 500 million dollars for the
"war effort." Say, too, that California has ten (10%)
percent of the population. California gets a bill for 50
million dollars. Now let's say that California has 25
million people at this time. Everybody pays two dollars.
That's apportionment. It does not take into account how
much or how little you earn, how much or how little you
have, etc. It is completely fair and equable. An
apportioned tax must be repealed within two years of its
enactment.
The other type of tax is an indirect tax. Indirect taxes
are taxes on a particular activity or taxes levied at
the point of purchase. If you do not want to pay the
tax, don't engage in the taxed activity or don't
purchase the taxed item. Lawfully avoiding indirect
taxes is easy.
America was established so that a Citizen need not ever
pay any tax, unless he wished to do so.
So what is the property tax?
It is an indirect tax, levied because you have
voluntarily used government services, and also because
your property has been classified as a commercial piece
of property.
There is no law requiring a real property owner to
record his property with the County Recorder. Don't
believe me. Go ask your Recorder or County Counsel.
Therefore, when you do record your property, you are
using government services which you are not required to
use. Your property tax goes to pay for those services.
When you record your property, you enter into a
Trustor/Trustee relationship, in which your real
property has been transferred into a government trust,
and you are given authorized permission to use their
property (warranty deed).
Further, your property tax is based on a commercial
classification which has been assigned to your real
property. I guarantee you that your property has been
classified as either agricultural, industrial, or
residential. Each of these is commercial in nature (the
legal definition of "resident" is a class of government
official; residential is a house in which a government
official lives).
There are three ways to lawfully opt out of property
taxes: obtain allodial title, un-record your property,
or have your real property re-classified as private.
Allodial title means supreme ownership. In the united
States of America, all property is allodial in nature.
This means that all property is subject to supreme
ownership by the people. This also means that federal
government activities which take private or public land
to use for environmental or biosphere purposes, are
illegally stolen from the people, who are their rightful
owners.
If you can obtain allodial title to your real property,
you will have effectively created an envelope in which
you reign supreme (e.g. the King has allodial title to
the castle and the kingdom). No zoning ordinances,
easements, bureaucratic regulations, state or federal
law have any effect on property held in allodium.
Literally, you have created a kingdom in the midst of
bureaucratic chaos, and you will never again receive any
property tax assessments.
Needless to say, the government does not want you to
obtain allodial title to your property, and they will
actively work to prevent you from doing so.
There are three main steps toward acquiring allodial
title. First, the property must be completely paid off.
No mortgage, lien. or other attachment can exist.*
Second, you must go to the County Recorder and do a
title search. Do it yourself; do not have an attorney
(vested interest) or title company representative do it
for you, because nobody has as much interest as you in
the results. Do the search yourself. You must search
back to the original land grants, ensuring that there
are no hidden clouds on the title. Once you have
completed a successful title search, file for a federal
land patent on the land on which the property is located
(if the property is in one of the original thirteen
states, you will need to go to the state for a land
patent - no federal land patents exist for these
states).
Now comes the third part, this is also the hardest part.
Every piece of recorded real property is used to
collateralize government loans, so your real property
has public debt attached to it. You need to find out the
amount of the public debt (approximately seven times the
annual property tax) and the holder of the debt, then
pay it off.*
The government doesn't want you to accomplish this, so
they will work against you. I suggest you burn the
research candle at both ends, so to speak. Contact the
County Recorder in the county where the property is
located. Contact the Department of the Interior in
Washington, D.C. Be prepared in both instances to meet
with clerks who do not know what you are talking about.
Ask for supervisors until you get someone who can help
you.
The process of un-recording your property is easier,
though not quite as solid. It is based on the fact that
you are assessed a tax based upon using government
services (County Recorder) to which you are not entitled
or mandated. The process involves transferring ownership
to another party, notifying the County Recorder that a
transfer has been completed, then having the property -
after a reasonable time period has passed - transferred
back into your name. If done correctly, the property is
not recorded anymore, and there will be no further tax
assessments.
A man in Massachusetts had 160 acres and wanted to give
two of them to his son. He called the Tax Assessor and
asked him to reduce his assessment to 158 acres. The
Assessor did so.
The son never recorded his two acres. twelve and a half
years passed. The son now wanted to borrow money on his
two acres. The bank said they would loan him the money,
but only if he recorded the property first. He wanted
the money, so he recorded the property. Two weeks later,
he received a property tax statement - for the current
year only! The past twelve years went un-assessed - no
tax!
The final method of opting out of property tax is one
which is little known and rarely used. It involves the
classification of property, on which the assessed tax is
based.
Property which is taxed is always identified by one of
three commercial classifications: residential,
industrial or agricultural. Private property cannot be
taxed!
Contact your Tax Assessor and ask for a written
explanation of the numbered codes appearing on your
property tax statement. Once you have deciphered the
statement, you will find your property classified by one
of the above commercial designations.
Write a letter to your Tax Assessor, explaining that you
have discovered an error in your tax statement. Do not
mention the tax itself, as the error in question relates
only to the classification. Explain that your property
has mistakenly been classified as ____________
(agricultural, industrial, residential), and to please
correct the classification to read "private." Ask the
Assessor to notify you by mail once the matter has been
handled. Be polite and sign the letter, using words like
"Sincerely", "Best wishes", etc. There is no reason be
belligerent at this point.
If the Assessor honors your wishes, you will never see a
property tax statement again. If, as is more likely, the
Assessor writes back, refusing to adjust his records,
you may now open up discussion as to why not. Ask
whether you have the right to own private property. He
will say yes, of course. Ask why he refuses to classify
it as private property. He will either explain to you
that he cannot tax property unless it is classified
pursuant to constitutional limitations (residential,
industrial, agricultural), or he will reveal to you that
you do not really own the property (in which case he has
admitted to fraud, nullifying the transfer of property
in the first place, since you were not aware of what you
were doing at the time).
In either case, once the Assessor brings up taxation,
you can now make the argument that your real property
has been re-classified, without your permission, for the
sole purpose of taxation. This is the firm basis for a
lawsuit.
There is a Tax Assessor (not a clerk, the actual
Assessor) in Tennessee who has admitted that he cannot
tax private property. He can, if necessary, be
subpoenaed to testify. There is a private Citizen in
Tennessee, who has not received a penny in property tax
assessments on his private land (160 acres or so) for
over fifteen years! If you need it for a court case, he
will sign an affidavit so stating. In other words, the
precedent exists and therefore, if you pursue it, you
cannot lose!
This method is rarely used so it has little track
record. However, it is based upon sound law and I invite
you to try it out on your real property. Let me know how
it goes!
Here is a detailed step-by-step tutorial on how to
obtain Allodial Title for your property.
1 Get 3 certified copies of the origional land patent
and 1 certified copy of record of government survey
(if available) for the legal description of your
property. Request "best copy available" from national
archives. Expect to pay $30 for a copy and get it in
1-3 weeks.
2 Record 1 of these certified copies of the origional
land patent with the county recorders office. The
recorder number will be the land patent number you
will refer to in your Declaration of Land Patent.
3 Determine the legal description of your property (from
tax statement, deed, real estate contract, or tax
assessor's office) to which you are an assign. Get
property description narrative (get range #, township
#, section #, get quarter section in metes and bounds)
4 Research the assigns (i.e. heirs, owners), on the
property back to the origional issue of patent.
Discover the chain of assigns pertinent to your
portion of the land patent and attach to your
Declaration of Land Patent.
5 Prepare a Declaration of Land Patent and update it in
one name. It cannot be updated in two names**. Other
equitable arrangements can be made to further
sub-divide the ownership or allodial title of the
property, or it could be put into a trust. Declaration
of Land Patents must be updated in the name of a real
individual, not a legal fiction. No legal "persons"
are allowed to hold title to property, you cannot
allodialize property in the name of a trust,
corporation, or non-profit.
6 Record the Declaration of Land Patent in either your
county recorder's office, register of deeds, or with
the bureau of records and conveyances of your common
law court. Notorize or witness all documents. Do not
send checks or federal reserve notes, use lawful
money, gold or silver; because conveying title with
negiotiable instruments voids the allodial title.
7 After filing, send a copy by certified mail return
reciept requested as a Notice of Declaration of Land
Patent to your bank or mortgage company, or to any
parties with equitable interest in your property
including the county tax assessor.
8 An alternate method to notice the other parties would
be to publish a Notice of Declaration of Land Patent
in a legal publication in your county (once a week for
3 weeks, or for the full 60 days.)
9 Post Notice of Declaration of Land Patent at the 4
corners of your property and leave them posted for 60
days (witnessed)
10 They have 60 days to challenge your claim to the
allodial title, or forever keep their silence. An
allodial title is the highest title to property.
*This step may be lawfully avoided due to the fact that
there is no lawful currency. Without a lawful currency
of Gold and Silver it is completely impossible to pay
debts, a debt cannot be “paid“ with a Federal Reserve
Note which doesn’t even meet the minimum requirements
for a promissory note and isn‘t redeemable. Therefore
since you have an absolute right to remedy and relief,
the law must absolve any debts, it cannot require that
which is impossible, especially when the problem is
their fault. So if you wish to peruse this avenue, just
start a prima-facie case by entering a simple affidavit
stating that due to congressional mischief and the
negligence of your state you are insolvent and unable to
lawfully pay debts. If you want a detailed affidavit on
this subject you can contact me and I will write one up
for you, for free!
**A husband and wife are one and they may act as one,
provided they were married under the anglo-saxon
common-law. Those “married” with a marriage license are
not recognized as one by common-law because they have
entered into a contract with three parties, the husband,
the wife, and the state; the state being the primary
party in the contract. Contact me for more information.
Source: http://fightingforliberty.org/content/view/49/26/
(C) 2006 FightingForLiberty.org
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