Meanwhile, Back at the Ranch...
Or, The Militia is Alive and Well and Living in the Hill Country
By Ilse Bailey
Last Modified, August 9, 1996. This article was originally published in Texas Prosecutor, Volume 25, No.3, May/June 1995.
Author's Note [from original article]
I have been trying to write this article for more than two years, but two things have been holding me up. The first is the rather prosaic problem common to all gainfully employed people -- I have a job that gets in the way of spending time on writing. The other obstacle was more influential in keeping me from submitting an article. My impression was that the problems I had been grappling with were unique to Kerr County, or perhaps to a very few rural Hill Country counties, and that any other reader would, at best, find these issues laughable, and at worst, might feel compelled to have me transported to the nearest in-patient psychiatric hospital for evaluation and treatment.
With the horrifying event which recently took place in Oklahoma City, the latter concern has evaporated, and the former has been overcome. The explosion, reportedly the work of militant right-wing anti-government extremists, and its shocking aftermath of death and destruction, has made the rest of the country aware of a strong undercurrent of anger and unrest that has been growing in this country for some years.
Here in the Hill Country, we have been watching with growing concern for the past few years as we have seen this movement grow and divide, and then grow even faster, like a cancer. It has infiltrated all aspects of society, from the most fringe elements to the judiciary, and all groups in between. They call themselves different names, but they all have the same general motivation: eventual destruction of the federal and state government as they currently exist.
Some individuals who have been tied to the "Michigan Militia" made their attempt at destruction of part of our government by use of explosive force against the federal building in Oklahoma City. Other like-minded groups are attempting in Kerr County (and apparently other locales) to achieve the same end by using frivolous lawsuits, appeals, removal actions and other court proceedings to overburden and eventually paralyze our entire justice system.
In Kerr County, our court system has been plagued for years by individuals and groups which I refer to collectively as "Posse." You may know them better through the news media as "militias," but by any name they exhibit characteristics that should cause prosecutors around the state to take notice and be prepared to respond. They are organized, motivated, and they have figured out how to use the system against itself. They have discovered that one way to neutralize the government is to overload it with frivolous claims and ridiculous lawsuits.
My first contact with the ideas presented by this type of group was in justice court and county court at law cases against individuals who identified themselves as members of the "Posse Comitatus," a nationwide group of citizens united in their belief that the federal and state governments have unconstitutionally exceeded their proper spheres of influence or power, and need to be stopped, by force, if necessary. In 1980 a group of such citizens filed a document in the Gillespie County deed records purporting to be the "Charter of the Posse Comitatus of the State of Texas, County of Gillespie." The charter makes all members "sovereigns," declares all current laws null and void, and sets out the group's mission as protection of the United States and Texas Constitutions and the "Constitution of the Free and Independent State of Texas" (!) as interpreted by the members.
In more recent years and months I have come into contact with several other groups who take exception to being identified as "Posse," but their rhetoric is almost identical to the rhetoric used by the "Posse" members. My conclusion is that if it looks like a duck, sounds like a duck, and swims like a duck, it can't very well object to being called a duck.
The claims put forward by these individuals are usually meritless to the point of being ludicrous, but they have to be dealt with, which can a take huge chunk out of a prosecutor's workday and reserves of patience. For example, during one point in 1994 I kept track of how I was spending my workdays for a couple of months, and discovered that 40% of my workday, on the average, was being taken up by dealing with "Posse" cases. In a county as small as Kerr County (one elected county attorney and two assistants), this can make significant inroads into the county's ability to actually prosecute real crime.
The "Posse" have borrowed from the pro se prisoner "writ writer" methodology, and have improved on it. Logic, res judicata and threats of contempt are no impediment to them. They do not seek justice, they seek a public forum for their political views and an opportunity to clog the court system with their rhetoric. They request jury trials for every issue, appointed counsel, and will appeal (pro se) every adverse ruling, all the way to the Supreme Court or the International Court in the Hague3. The best way we have found to deal with them is to be prepared and prepare our judges, so that they are not so inclined to give these litigants much leeway. This, in turn, can sometimes reduce the number of times you have to litigate the same issue with the same individual over the same set of facts.
If you do not have any of these "Posse" people in your jurisdiction, perhaps the following will at least be amusing. If you do, perhaps it may be of some use to you in clearing your court docket so that you can spend your time prosecuting crimes and otherwise doing what the taxpayers intend that you do with their tax dollars. (It should be noted that Terry and James Nichols, who have been tied to the Oklahoma City bombing, have also used the courtroom tactics outlined in this article. In an article in the April 28, 1995 Austin American Statesman, it was reported that the brothers have tried "unusual" legal tactics to avoid debts, beat speeding tickets and negate child support payments. They have used the identical arguments that we have been seeing in Kerr County pleadings regarding jurisdiction over the person, and lack of citizenship. In addition, they have contended in court proceedings that they can not be required to obtain driver's licenses and that they have the right to issue their own currency.)
One of the favorite strategies of these people is to claim that the court in which you are trying to prosecute them does not have jurisdiction over them because they are not citizens of Texas or of the United States. They will proceed to offer affidavits and other documents purporting to prove to you that they have renounced their citizenship, are each "foreign sovereigns," and thus must be tried pursuant to all of the diversity jurisdiction rules applicable to suits by the United States against a foreign country.
Note that they do not claim citizenship of any particular other country, since that would make them subject to the laws of such other country -- they each individually claim to be a sovereign country with no fixed geographical situs. This "country" is made up of one corporeal and mobile human body, with a citizenry of one. Hence, we have various other sovereign countries roaming around within Kerr County, driving cars without licenses (countries apparently do not need licenses or insurance to drive cars), refusing to pay taxes, and committing various other conduct that, when committed by your average citizen, are considered to be criminal misdemeanors.
An important thing to remember in attacking these claims of sovereignty is that it is extremely difficult to effectively renounce your American citizenship. During a period of particular frustration with these litigants, I decided that they should be deported if they were truly not American citizens, so I attempted to get the Immigration and Naturalization Service involved. The INS was, of course, intrigued by the perplexing problem of where you deport a "country" to, but they did provide me with useful authority for the proposition that one does not easily divest oneself of United States citizenship.
Title 8 U.S.C. 1481 contains the basic statutory provisions regarding loss of nationality. In short, the law provides that mere renunciation of citizenship is not effective, unless done in conformance with the statutory scheme. The statute generally requires some action like taking an oath of allegiance to another foreign nation (as would be required in joining the military of a foreign nation, for instance), or making a formal renunciation before a diplomatic or consular officer of the United States in a foreign country, in such form as may be prescribed by the Secretary of State. The burden of proof is on the person claiming that citizenship has been revoked or abandoned, by a preponderance.
Regardless of the court in which you find yourself with a "Posse" litigant, immediately acquaint your judge with the necessary authority to refute their claims. If they lose, it is a foregone conclusion that they will appeal the case, and it is best to create a good record from the outset, rather than having to try to create the record as you go along in the appellate system.
We have dealt with dozens of criminal and civil cases against "Posse" litigants, and I can not remember a single case where the litigant has not claimed to be indigent, and thus entitled to a court appointed attorney, a free transcript and statement of facts on appeal, free service of process and free service of subpoenas. If you do not provide these things freely and rapidly, you are then in danger of having a lawsuit filed against you for violation of civil rights and conspiracy to violate same.
Until I realized that it was imperative to aggressively attack all "Posse" indigency affidavits as quickly as possible, I was really in a bind. Every time that the State filed criminal charges against a "Posse" defendant, the defendant would immediately file an affidavit of indigency, a request for jury trial and for appointed counsel, a removal action to remove the case either to federal court (remember that pesky diversity jurisdiction!), or to the "Common Law Court for the Republic of Texas." (An "Alice in Wonderland" court of their own imagining, which I have been told is located in the A-Z Appliance Store between Kerrville and Ingram. The proprietor of the repair shop, Gary Fiscus, is apparently the clerk as well as the judge of the court. )
If all of these requests were not granted promptly, the defendant would then file a civil lawsuit in district court (and sometimes simultaneously in federal court) against all and sundry for violation of his or her rights. The usual defendants included every law enforcement officer whose name appeared anywhere on the offense report or booking sheets, the judge, the sheriff, and the prosecutor. This new suit would be filed along with another indigency affidavit, and away we would go.
It does not take a substantial mastery of mathematics to ascertain that in very short order just about every person in the county involved in law enforcement could become a defendant, and that hundreds, if not thousands, of dollars in court costs and filing fees are being incurred that will never be paid. Once your judge becomes a defendant in a civil suit by the criminal defendant, he generally will not want to preside in the underlying criminal case. This will then require going through the process to get another judge to hear the case. Given the foregoing, persuading another judge to take the case on can sometimes be difficult.
Meanwhile, back at the ranch, remember that there is still a pending Class B or even Class C misdemeanor underlying the whole mess. Of course, as a prosecutor, you do have the discretion to simply dismiss the criminal charges, on the theory that this conviction is not worth the trouble. If you dismiss the charges, all the ancillary cases will probably fade away, but we have resisted this course of action in Kerr County, since it would amount to a concession that these people are above the law.
As a prosecutor for most of the past nine years, I take seriously my oath to uphold and defend the constitution and laws of this state and of the United States. I interpret this oath to require that I take all necessary steps to make sure that all defendants are justly dealt with according to our laws, not just the ones who make it easy for us. To do otherwise would be to condone the anarchy that these groups are promoting.
We have discovered that much of the lawsuit proliferation described above can be avoided by requesting indigency hearings, early and often. In some cases, it may even be worth your while to have an investigator look into the financial arrangements of your defendant(s).
They are generally unemployed, and will not volunteer any information you can use to establish lack of indigent status, but you can often learn useful information with a little investigation. For instance, a "Posse" family, formerly residents of Kerr County, who regularly filed lawsuits against everyone in sight, and were frequently defendants in minor criminal actions, always claimed to be indigent. After some investigation, we discovered that the "indigent" patriarch of the family regularly appeared at the courthouse steps to bid on foreclosed property with bags the size of basketball literally full of silver coins. Needless to say, with this information in hand, it was not difficult for the prosecutor to convince the court that this defendant should be required to pay court costs and fees as a non-indigent person.
Another tactic which this family used, and I have seen it used elsewhere, is that they purport to have transferred all their assets to a "Trust." Since the assets belong to the trust, and not the litigant, the litigant will claim indigent status. Remember that the burden of proof for indigency is on the one seeking the status (e.g., Sifford v. State, 511 S.W.2d 526 (Tex. Crim. App. 1974)), so it will be their burden to establish the trust by sufficient evidence, and to prove that they do not have access to funds or other assets of the trust when they need such funds.
Attempting to remove cases to federal court or to their mythical "Common Law Court for the Republic of Texas," regardless of the appropriateness of such action is a popular move by these litigants. This tactic has its down side (remember that when an action is removed, even wrongly, to federal court, all proceedings in state court are stayed until the resolution of the removal action, e.g., Lowe v. Jacobs, 243 F.2d 432 (5th Cir. 1957), cert. den. 355 U.S. 842, 2 L.Ed.2d 52, 78 S.Ct. 65; Allman v. Hanley, 302 F.2d 559 (5th Cir. 1962)), but removal can also have its benefits. The federal courts seem to have a lot more experience with the types of claims made by these litigants, and as a general rule are not as hesitant to impose sanction against them for making frivolous claims and arguments and generally wasting the federal judge or magistrate's time.
Many of these removal cases are worth reading in their entirety, but in the interests of being succinct, I will just refer you to the ones I consider most noteworthy: United States v. Masat, 948 F.2d 923, 934 (5th Cir. 1991) (argument that district court lacked personal jurisdiction because of defendant's status as "non-citizen," "non-resident" and "freeman" was frivolous); United States v. Schmitt, 748 F.2d 880, 882 (8th Cir. 1986) (argument that district court lacked personal jurisdiction over defendants because they were "Natural Freemen" and not a "juristic identity" was entirely frivolous); Kimmell v. Burnet County Appraisal District, 835 S.W.2d at 109-15; Kimmell v. Leoffler, 791 S.W.2d 648, 650 n.1 (Tex. App.--San Antonio 1990 writ denied); Scotka v. State, 856 S.W.2d 790, 792 (Tex. App.--San Antonio 1993, no pet.) (Appellant held not able to unilaterally immunize herself from the laws of this state, and not able to pick and choose at will the forum for a criminal prosecution or appeal).
Another favorite argument used by every "Posse" litigant I have dealt with is that the American system of currency is illegal and unconstitutional. Thus, they argue, they can not be required to pay any debt or fine or tax imposed by the government, since it is all in illegal money. The argument has to do with their contention that federal reserve notes (what most of us think of as "money") are not legal tender, because they violate the United States Constitutional provision that a state may only tender gold and silver in payment of debts (U.S. Const. art. I, Section 10, cl. 1).
This argument has been made numerous times before in state and federal trial and appellate court, and has been rejected each time. See, e.g. Rothacker v. Rockwall County Central Appraisal District, 703 S.W.2d 235 (Tex. App.--Dallas 1985 writ ref'd n.r.e.), and cases cited therein; Chermack v. Bjornsen, 223 N.W.2d 659 (Minn. 1974); Dorgan v. Kouba, 274 S.W.2d 167 (N. Dak. 1978) (reh. den. 1979); Leitch v. Department of Revenue, 519 P.2d 1045 (Ct. App. Oregon 1974); Middlebrook v. Mississippi State Tax Commission, 387 So.2d 726 (Miss.1980); Radue v. Zanaty, 308 So.2d 242 (Ala. 1975); Allen v. Craig 564 P.2d 552 (Ct. App. Kan. 1977); Trohimovich v. Director of the Department of Labor and Industries, 584 P.2d 467 (Ct. App. Wash., Div. 2, 1978).
If you have a defendant making such a claim about the invalidity of money, having these cases in your trial notebook will allow you to shortcircuit much of your defendant's argument, and get down to the real issue(s) in the case.
Real Estate Litigation
This argument (that our money is not legal tender) is interesting, because it arises in many different contexts. We have seen it in criminal cases, as you might expect, but have also seen it in a number of real estate cases filed in our district courts by banks seeking to have clouds removed from the title of property they purchased at foreclosure sales. It seems that a "Posse" individual will attend foreclosure sales, bid twenty-one silver dollars on each piece of land that strikes his fancy, regardless of the listed value of the property. A financial institution will then bid the amount due on the note, usually in the $30,000.00 to $300,000.00 range, and will consider itself the successful bidder.
Subsequently, the "Posse" bidder will file some sort of cloud on the title, claiming to be the only successful bidder in "lawful money", and the financial institution winds up with a piece of real estate that it can not provide clear title to without a lawsuit. It does not require a great leap of imagination to envision that financial institutions might become reluctant to purchase these properties or to lend money using such properties as collateral, given the evident difficulties in establishing a marketable title. In an area with an economy which depends heavily on retirees and tourism, like the Hill Country, reluctance by financial institutions to provide real estate financing could be devastating to local economies.
This same tactic has been tried in other jurisdictions and has been rejected by the appellate courts (e.g., Elmore v. McCammon, 640 F.Supp. 905 (S.D. Tex. 1986) (under Texas law, bid at deed of trust foreclosure sale in silver coin did not override credit to mortgagee entered by substitute trustee in favor of mortgagee who was successful bidder despite deed of trust provision requiring "cash" sale).
Most courtrooms in Texas are decorated in much the same way: there is a bench for the judge, counsel table(s) for the parties and their attorneys, chairs for the observers, and flags, of both the Texas and the United States. The flags sometimes are adorned with golden fringe around the edges. Beware, those of you who must practice in a courtroom with a fringed flag! You will undoubtedly be assailed with the argument that the fringe on the flag denotes a court of admiralty. Your defendant will then point out with great glee that since the offense alleged did not occur on the high seas, ipso facto, the "admiralty court" in which you find yourself has not properly obtained jurisdiction over him!
I am sure that this argument can be refuted by reference to some line of cases or some statutory reference; however, I usually succeed in convincing my judges that decor is not a determinant for jurisdiction, so I have not taken the time to create a better analysis.
Sometimes doing the right thing does not necessarily make one particularly popular. Even with the Kerr County Attorney's vigilant fight against the ochlocracy advocated by "Posse" litigants, the county became a national laughing stock last summer when our very own lame duck county judge granted several petitions to "Posse" types, declaring them to be individual "sovereigns" and exempting them from all laws and license requirements. The Kerr County Attorney's Office initially received a substantial amount of negative response to our challenge to the judge's orders, but were eventually vindicated when the State Commission on Judicial Conduct issued a public reprimand holding that in issuing the orders the judge had displayed a "lack of competence in the most fundamental principles of law." This judge eventually resigned in disgrace.
I sincerely hope that there are no other members of our statewide judiciary who would follow in this judge's footsteps. However, if you should have a similar problem, remember the statewide network of state agencies that are there to assist you. We received a great deal of assistance (and moral support) from Assistant Attorney General Michelle Wakefield, who deals with these folks on a statewide basis, as well as aid and assistance from numerous others individuals and agencies around the state.
The "Posse" have come into the information age. Almost everyone is aware by now, as a result of the recent media coverage, that these folks use computer bulletin boards to spread their messages of paranoia and hatred. This has significant implications for those of us trying to fight them. I find that they use the computer networks and old fashioned mailing lists to distribute blueprints to their members and sympathizers on how to file their lawsuits, and how to avoid getting them summarily disposed of.
Remember when you are fighting with one of these litigants in court that it is likely that he has the support and aid of hundreds of like-minded extremists backing him up, and that you may not be able to fight him alone. If you have the ability to do so, it would be wise to do a little of your own "surfing on the Internet," to try to see what you might be coming up against. Forewarned, as they say, is forearmed. I was somehow lucky enough to get on one of their mailing lists for a time, and the information I received was very informative and potentially useful.
If you find yourself in federal court, do not hesitate to avail yourself of the federal courts' willingness to impose sanction in appropriate cases. As I have indicated, various federal courts have seen enough of these cases and litigants that their patience is limited (see judge's order at end of article). I have successfully prevented one troublesome litigant from being able to file any more cases at all in the United States Court for the Western District of Louisiana (Lafayette Division) by seeking and obtaining a sanction order which included a requirement that the litigants pay me and several other individuals/agencies a substantial amount in attorneys fees prior to attempting to file any other document in that court.
Anytime you can set up circumstances whereby these litigants are required to pay the appropriate court costs and fees, you will most likely succeed in silencing these nuisance suits. They do not seem willing to pay to harass the government.
If I can leave you with any one particular thought I would ask you to remember about these "domestic home-grown bigots," as they have been described by National Public Radio, it is this: Do not underestimate them! They are numerous, they are motivated, they know how to play the system, and they sincerely believe that the government (that's you and me, folks!) need to be overthrown--through violence, if necessary. Tread carefully, and use all resources at your disposal. Good Luck!