Judge ██████
Presiding Judge
██████ County
Superior Court
████████████
██████,
California ██████
Dear Mr. ██████,
Pardon my directness. I have
attached copies of 2 documents. The first is a “Notice to Appear”
#██████
from the California Highway Patrol, dated ██████.
The second is a copy of the “Declaration of Candidacy” for
████████████,
dated March 8th, 2010, a 2 sided form, filed with the
Registrar of Voters on that date. I will discuss the second form
first.
The “Declaration of
Candidacy” for ████████████
purports to comply with Elections Code section 200. The clerk, whose
name is obscured on the copy, signed that the form was “Examined
and certified by me this 8th day of March, 2010.” I
direct your attention to the “Oath of Office” on the reverse
side. The “so-called” Oath of Office is not the entire oath from
Article XX section III of the Constitution of State of California,
but merely the first paragraph of said oath. Unfortunately, the Oath
of Office in Article XX section III is a 2 paragraph oath, the second
paragraph begins with the words “And I do further swear” and ends
with the words “other unlawful means.”
Since the Declaration of
Candidacy purports to comply with Elections Code section 200, I
direct your attention to that code section, which says “. . . there
shall be set forth in full . . . the oath . . . set forth in Section
3 of Article XX of the Constitution.” I believe the words “in
full” are not surplus, they are integral to the meaning of
Elections Code section 200, and the Declaration of Candidacy and Oath
of Office on the reverse are not in compliance with Elections Code
section 200. Thus, the Oath of Office by ████████████
does not comply with Elections Code nor the Constitution of the State
of California.
I am sure you can draw the
same conclusion that I have drawn, that the ██████
County DA is merely a defacto officer, not dejure. This is not the
only conclusion I can draw, there may be criminal culpability
regarding “filing false documents”, but at best the DA is
defacto, not dejure. I would also suggest that you, and every other
elected judge in ██████
County has a “similar fact situation”.
Now I draw your attention to
the previously mentioned “Notice to Appear”. I attempted to
inform the CHP officer of the DA's defacto status, but he insisted on
having me sign the notice. That is why I am notifying you of the DA's
status, at least in my case, and I am empowering you to “take care
of the ticket” by whatever method you may choose.
I am providing you with
“constructive notice” that if you require any more action from
me, it will cost ██████
County a minimum of $1000 (one thousand dollars) in silver per hour.
If I am accosted or arrested on this matter I will also charge you
the same, remember, that if you are merely a defacto officer, you
have no “judicial immunity” and you will be individually
responsible for making me whole, at common law.
I have no beef with ██████
County, or the defacto officers thereof, but I would encourage you,
and the other judges of the county, to ascertain whether you filed
the same Declaration of Candidacy that ████████████
did. Please send me a letter telling me that this issue, and any
other issue before the courts in ██████
County which purports to apply to me, is moot, and that I can travel
about the county without having to worry that defacto officers of the
county might accost or arrest me.
Sincerely,
████████████
██████
██████,
California
P.S. I am quoting the
Constitution published by the California State Senate. You will note
that Article XX section 3 has no “asterisks” or other notations
which purport to “invalidate” the second paragraph of the oath.
You may think the second paragraph was overturned if you study the
“Annotated Constitution” but I believe that to be incorrect,
however that is why I base my argument on Elections Code section 200,
which was enacted after the Vogel v. County of LA decision, which
some claim “overturned” the second paragraph, I suggest it did no
such thing. Either way, the fact that the California State Senate
continues to publish a 2 paragraph oath suggests to me that the
second paragraph is still part of the Oath of Office, notwithstanding
Vogel.
You should also review
Smith
v. County Engineer, 266 Cal.App.2d 645 (1968) which was decided AFTER
Vogel and has several relevant quotes.
[1]
Did the County of San Diego Legally Employ Appellant on July 12,
1965?
No.
Appellant became a de facto employee of the county. (See Oakland
Paving Co. v. Donovan, 19 Cal.App. 488, 493-496 [126 P. 388]; People
v. Kempley, 205 Cal. 441, 445 [271 P. 478]; Lopez v. Payne, 51
Cal.App. 447 [196 P. 919]; gen. 41 Cal.Jur.2d, Public Officers, §
227 et seq.); he did not become a de jure employee of the county for
failure to execute the oath required by the state Constitution.
The
execution of the oath is essential to the status of de jure
employment the lack of which precludes the right to compensation for
services rendered (cf. [266
Cal.App.2d 654]
Lopez v. Payne, 51 Cal.App. 447, 449 [196 P. 919]; Norton v. Lewis,
34 Cal.App. 621, 624 [168 P. 388]).
Performance of the duties of the office, without being a holder of a valid commission of office, did not give a party the right to the salary of the office. Benwell v. Lowery (1946) 173 P.2d 690, 76 C.A.2d 614.
