Memorandum of Points and Authorities

Thomas Murrell Thornhill III
c/o Box 1755, U.S.P.S.
Nevada City, California, United States of America
In my own right, without the assistance of counsel.
No telephone service maintained
[Date]

THE JUDICIAL COUNCIL OF CALIFORNIA

(an administrative agency)

doing business as

THE NEVADA COUNTY SUPERIOR COURT

(a fictitious business)

Official Notice Requested (West's Ann.Cal.Gov. Code (2002), з 11515)
JUDICIAL NOTICE REQUIRED (West's Ann.Cal.Evid. Code (2002), зз 451, 453, 459).

I. One of the fundamental and essential basics of a valid court proceeding sufficient to comply with the Due Process requirements of the Fifth Amendment to the Constitution for the United States of America is that of a court of competent jurisdiction.

The appearance of the parties ... and their proceeding to trial without objection at the time can make no difference. For consent cannot create a Court, or give jurisdiction to a tribunal otherwise possessing none. (Germond v. The People, 1 Hill, 343.) ..."it was absolutely essential to the validity of a judgment that it be rendered by a Court of competent jurisdiction, at the time and the place, and in the form prescribed by law." (Wicks v. Ludwig, 9 Cal. 175; Smith v. Chichester, 1 Cal. 409.) The tribunal before which the trial was had was, in no legal sense, a Court. It had no authority whatever in the premises. The whole proceeding is a nullity,..
(emphasis added) Norwood v. Kenfield (1867), 34 Cal. 329, 333.

II. Specifications of the civilian display of flags of the United States of America and of California are covered by statutes published in 4 U.S.C.A. з 1, and West's Ann.Cal.Gov. Code з 420, respectively. Photocopies thereof are attached and incorporated herein as Exhibit 1.

2.a. 36 U.S.C.A. (2001), з 173 reads (emphasis added):

The following codification of existing rules and customs pertaining to the display and use of the flag of the United States of America is established for the use of such civilians or civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments of the Government of the United States. The flag of the United States for the purpose of this chapter shall be defined according to sections 1 and 2 of Title 4 and Executive Order 10834 issued pursuant thereto.

2.b. 4 U.S.C.A. (2001), з 1 reads:

The flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty-eight stars, white in a blue field.

2.c. West's 4 U.S.C.A. (2001), з 2 reads:

On the admission of a new State into the Union one star shall be added to the union of the flag; and such admission shall take effect on the fourth day of July then next succeeding such admission.

2.d. Executive Order 10834, [set out as a note under 4 U.S.C.A., з 1] reads (in part):

...WHEREAS, the Federal Property and Administrative Services Act of 1949 (63 Stat. 377), as amended ... authorizes the President to prescribe policies and directives governing the procurement and utilization of property by executive agencies; and...
NOW , THEREFORE, by virtue of the authority vested in me as President of the United States and as Commander in Chief of the armed forces of the United States, and the Federal Property and Administrative Services Act of 1949, ... it is hereby ordered as follows:
...Sec. 2. The positions of the stars in the union of the flag and in the union jack shall be as indicated on the attachment to this order, which is hereby made a part of this order.
Sec. 3. The dimensions of the constituent parts of the flag shall conform to the proportions set forth in the attachment referred to in section 2 of this order.
...Sec. 32. As used in this order, the term "executive agencies" means the executive departments and independent establishments in the executive branch of the Government, including wholly-owned Government corporations.
DWIGHT D. EISENHOWER

2.e. West's Ann.Cal.Gov. Code (2001), з 420 reads (in part):

The Bear Flag is the State Flag of California. As viewed with the hoist end of the flag to the left of the observer there appears in the upper left-hand corner of a white field a five-pointed red star with one point vertically upward and in the middle of the white field a brown grizzly bear walking toward the left with all four paws on a green plot, with all four paws on a green grass plot, with head and eye turned slightly toward the observer; a red stripe forms the length of the flag at the bottom, and between the grass plot and the red stripe appear the words CALIFORNIA REPUBLIC....
The general design and the details of the Bear Flag, excluding colors, shall correspond substantially with the following representation:
This shall be the official State Flag of all state, county, city and town agencies.

2.f. The United States Supeme Court has held:

...the flag is the symbol of the nation's power, --the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.
Halter v. Nebraska (1907), 205 U.S. 34, 43, 51 L. Ed. 696, 27 S. Ct. 419.

2.g. I can reasonably infer that the flags displayed in venues intended to apply to civilians in California should conform to these specifications.

III. The flags displayed in Nevada County courtrooms are clearly seen not to be the civilian flags of the United States or of California described above.

3.a. After a diligent search, the only published regulation I have found from any branch of the United States armed forces which authorizes the placing of fringe on the United States flag is Army Regulation AR 840-10. Heraldic Activities: Flags, Guidons, Tabards, and Automobile and Aircraft Plates, (1 June 1998). Photocopies of pp. Certification, Front, i, 1, 4-6, 54-56, are attached and incorporated herein as Exhibit 2.

3.b. AR 840-10, з 2-3, p. 5. reads:

National flags listed below are for indoor display and for use in ceremonies and parades. For these purposes, the flag of the United States will be of rayon banner cloth or heavyweight nylon, trimmed on three sides with golden yellow fringe, 2 1/2 inches wide....

3.c. AR 840-10, з 2-3, p. 5, reads:

Authorization for indoor display. The flag of the United States is authorized for indoor display for each--
"...(4) Military courtroom."

3.d. AR 840-10, з 2-8, p. 6, specifies that when the "National Color" of the United States is displayed upon a flagstaff, the flagstaff shall bear cords and tassels of intertwined Red, White, and Blue.

3.e. 34 Op. Atty. Gen. 483 (John G. Sargent, May 15, 1925) [1925 U.S. AG LEXIS 29] reads (in part):

There is no statute which fixes the proportionate dimensions of the hoist and fly, the size of the union, or the size and arrangement of the stars in the union. These matters appear to have been regulated originally by custom. They are now controlled by Executive orders and by Army and Navy regulations....
The presence, therefore, of a fringe on military colors and standards does not violate any existing Act of Congress. Its use or disuse is a matter of practical policy, to be determined, in the absence of statute, by the Commander in Chief. ...
(1) I am therefore of opinion that the question of a fringe may be determined by the President as Commander in Chief. The same authority may determine the dimensions of the flag and the arrangement of the stars in the union. These details are not controlled by the statute to which I have referred. Upon the propriety of such decisions, as contrasted with their legality, I do not believe it necessary to express a formal opinion. ...

4.a. I reasonably infer that a California flag bearing golden yellow fringe and displayed upon a flagstaff surmounted by a spear point and bearing golden yellow cords and tassles has an analogous significance to a United States flag so displayed. Id., з 8-2(2), p. 54, Figure 8-2, p. 55.

4.b. West's Ann.Cal.Mil. & Vet. Code (2001), з 611 authorizes a non-civilian use of United States and California flags: (emphasis added):

(a) "Flag," as used in this division means the State Flag of California and the Flag of the United States, as defined in this section.
(b) "State Flag of California" includes any flag, standard, color, or ensign authorized by the laws of this state,...
(c) "Flag of the United States" includes any flag, standard, colors, or ensign authorized by the laws of the United States ..., made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America, ..., by which the average person seeing the same without deliberation may believe the same to represent the flag, standards, colors, or ensign of the United States of America.

4.c. West's Ann.Cal.Gov. Code (2001), з 439 reads:

The Adjutant General shall, by regulation, prescribe rules regarding the times, places, and manner in which the State Flag may be displayed. He shall, periodically, compile the laws and regulations regarding the State Flag. Copies of the compilation shall be printed and made available to the public at cost by the Department of General Services.

4.d. After a diligent search of BARCLAYS CALIFORNIA CODE OF REGULATIONS, I have been unable to find any properly adopted regulation(s) authorizing any "standard, color, or ensign authorized by the laws of this state".

4.e. After a diligent search in the Stateute to Regulation Index of BARCLAYS, I have been unable to locate any regulations referenced to Government Code з 439.

4.f. I reasonably infer that there is no California-"authorized" standard, color, or ensign of California.

IV. The display of demonstrably non-civilian flags in Nevada County courtrooms strongly suggests the court is unilaterally purporting to be a non-civilian forum.

5.a. West's Ann.Cal.Mil. & Vet. Code (2001), з 450 authorizes the existence of courts-martial in California. and reads:

The military courts of this State are: (a) general courts-martial; (b) special courts-martial: (c) summary courts-martial; and (d) courts of inquiry.

5.b. West's Ann.Cal.Mil. & Vet. Code (2001) зз 455-458 define the legal jurisdiction of said courts-martial:

1. West's Ann.Cal.Mil. & Vet. Code (2001), з 456 reads (in part, emphasis added):
General courts-martial have power:
(a) To try:
(1) Commissioned officers, warrant officers, and enlisted men and women of the National Guard.
(2) Commissioned officers, warrant officers, and enlisted men and women of the unorganized militia whenever they are called out for service of the state....
2. West's Ann.Cal.Mil. & Vet. Code (2001), з 457 reads (in part, emphasis added):
Special courts-martial have power:
(a) To try:
(1) Warrant officers and enlisted members of the National Guard.
(2) Warrant officers and enlisted members of the unorganized militia whenever they are called out for service with the state....
3. West's Ann.Cal.Mil. & Vet. Code (2001), з 458 reads (in part, emphasis added):
Summary courts-martial have power:
(a) To try enlisted members of the National Guard unless they object thereto....
4. West's Ann.Cal.Mil. & Vet. Code (2001), з 455 reads (in part, emphasis added):
Courts of inquiry shall consist of at least three members and may be ordered by the Governor to examine into the nature of any transaction of or accusation against any officer or enlisted man or woman. The courts shall not be ordered except upon the request of the officer concerned or whose conduct is to be inquired into or upon the request of the enlisted man or woman concerned.
The members of the court may be officers or qualified enlisted men or women, and the court may include both officers and qualified enlisted men or women.
The practice and procedure of the court of inquiry shall be in accordance with the Articles of War [1. Formerly 10 U.S.C.A. sec. 1471 et seq. Repealed May 5, 1950, c. 169, sec. 14(a), 64 Stat. 147, effective May 31, 1951. Now covered by Uniform Code of Military Justice, 10 U.S.C.A. sec. 801 et seq.] and like tribunals appointed for similar purposes in the United States Army, United States Air Force, and United States Navy....

V. To the extent that a California court purports to be sitting as a court-martial under the rationale of "organizing and disciplining the militia", said court-martial would have legal jurisdiction over the subject matter of "all able-bodied male citizens and all other able-bodied males who have declared their intention to become citizens of the United States, who are between the ages of 18 and 45, and who are residents of the State, and of other persons as may upon their own application be enlisted or commissioned therein..." (West's Ann.Cal.Mil. & Vet. Code (2001), з 122) and who are not specifically exempted:

The following persons shall be exempt from military service: (a) Persons exempt from military service by the laws of the United States....
(West's Ann.Cal.Mil. & Vet. Code (2001), з 125.)

VI. United States courts have consistently held that courts-martial do not have jursidiction over civilians:

7.a.

That on the facts stated in said petition and exhibits, the Military Commission mentioned therein had no jurisdiction legally to try and sentence said Lambdin P. Milligan in the manner and form as in said petition and exhibits are stated.
...Milligan is a citizen of the United States; has lived for twenty years in Indiana; and at the time of the grievances complained of, was not and never had been in the military service of the United States.
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the greatest effort to throw off its just authority. ...
If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of actual military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power.
(emphasis added) Ex Parte Milligan (1866), 71 U.S. 2, 18 L. Ed. 281, 291-297.
7.b. These opinions are largely based upon the recognition of the fact that a court martial under the laws of the United States is a court of special and limited jurisdiction. It has no jurisdiction beyond that given it by statute, and since there is no statute giving it jurisdiction over persons not in the military service, it may not assume such jurisdiction either as a matter of convenience or public policy. (emphasis added) Ex Parte Wilson (D.C.E.D. Va, 1929), 33 F.2d. 214, 215.

VII. From the Codes and cases cited herein, the legal subject matter of a court-martial is limited by statute to military personnel.

8.a.

The Constitution grants to Congress the power "[t]o make Rules for the Government and Regulation of the land and naval Forces." US Const, Art I, sec. 8, cl 14. ...
In an unbroken line of decisions from 1866 to 1960, this court interpreted the Constitution as conditioning the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused. Gosa v Mayden, 413 US 665, 673 (1973)(plurality opinion); see Kinsalla v United States ex rel. Singleton, 361 US 234, 240-241, 243 (1960); Reid v Covert, 354 US 1, 22-23(1957)(plurality decision); Grafton v United States, 206 US 333, 348 (1907); Johnson v Sayre, 158 US 109, 114 (1895); Smith v Whitney, 116 US 167, 183-185 (1886); Coleman v Tennessee, 97 US 509, 513-514 (1879); Ex parte Milligan, 4 Wall. 2, 123 (1866); cf. United States ex rel. Toth v Quarles, 350 US 11, 15 (1955); Kahn v Anderson, 255 US 1, 6-9 (1921). ... As explained in Kinsella v Singleton, supra:

"The test for jurisdiction ... is one of status, namely whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces.' ..." Id., at 240-241, 4 L Ed 2d 268, 80 S Ct 297 (emphasis in original).
"Without contradiction, the materials ... show that military jurisdiction has always been based on the 'status' of the accused, rather than on the nature of the offense. To say that military jurisdiction 'defines definition in terms of military "status"' is to defy the unambiguous language of Art. I, sec. 8, cl 14, as well as the historical background thereof and the precedents with reference thereto." Id., at 243, 4 L Ed 2d 268, 80 S Ct 297.
(emphasis added) Solorio v. United States (1987), 483 U.S. 435, 438-440; 97 L.Ed.2d. 364, 107 S.Ct. 2924.
8.b. Courts-martial in California are established or provided for by the Military and Veterans Code pursuant to the authority of article VIII, section 1, of the California Constitution which reads, "The Legislature shall provide, by law, for organizing and disciplining the militia, in such manner as it may deem expedient, not incompatible with the Constitution and laws of the United States." ... However section 451 of the code provides that "the provisions of the Uniform Code of Military Justice [50 U.S.C.A, з 551 et seq. (now 10 U.S.C.A., зз 801 et seq.)] ... shall govern and be applicable except as otherwise provided in this code to the active militia including the California National Guard."
(emphasis added, information in parentheses added) In Re Palacio (1965), 238 Cal.App.2d. 545, 546-547, 48 Cal.Rptr. 50.
8.c. 10 U.S.C.A. (2001), зз 817-820 define jurisdiction of various United States courts-martial.

1. 10 U.S.C.A. (2001), з 818 reads (in part):
Subject to section 817..., general gourts-martail have jurisdcition to try persons subject to this chapter for any offense made punishable by this chapter... General courts-martial also have jurisdcition to try any person who by the law of war is subject to trial by a military tribunal...
2. 10 U.S.C.A. (2001), з 819 reads (in part):
Subject to section 817..., special courts-martial have jurisdiction to try persons subject to this chapter for any noncapital offense made punishable by this chapter and,under such regulations as the President may prescribe, for capital offenses....
3. 10 U.S.C.A. (2001), з 820 reads (in part):
Subject to section 817..., summary courts-martial have jurisdiction to try persons subject to this chapter... No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto....
4. 10 U.S.C.A. (2001), з 817 reads (in part):
Each armed force has court-martial jurisdiction over all persons subject to this chapter. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed by the President....
8.d. 10 U.S.C.A. (2001), з 802 (photocopies of which are attached and incorporated herein as Exhibit 3) defines the subject matter jurisdiction of United States courts-martial (in part):

(a) The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.
...(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.
...(10) In time of war, persons serving with or accompanying an armed force in the field. ...
(c) Not withstanding any other provision of law, a person serving with an armed force who--
(1) submitted voluntarily to military authority;
(2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;
(3) received military pay or allowances; and
(4) performed military duties;
is subject to this chapter until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. ...
8.e. From the facts and Exhibits in the accompanying Declaration, I have no reason to believe that I fit into any of the categories set out in 10 U.S.C.A., з 802.
8.f.
No judicial process, whatever form it may assume, can have any lawful authority outside the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.
(emphasis added) Ableman v. Booth (1858), 56 U.S. (21 How.) 506, 16 L.Ed. 169.
8.g.
Where there is no law authorizing the courtmartial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed, there is no tribunal authorized by law to render the judgment.
Keyes v. United States (1883), 109 U.S. 336; 27 L.Ed. 954, 956; 3 S.Ct. 202.
8.h.
Until inducted into military service, the rights of a party are to be determined, not according to military law or the law of courts-martial, but according to the standards of the civil law.
(emphasis added) Ex parte Goldstein, (D.C. Mass. 1920), 268 F. 431, 432.
8.i.
...it is also significant that the plaintiff was a civilian and not generally amenable to military jurisdiction and discipline. This separate status meant that he could not be automatically treated as if he were a soldier.
Saylor v. United States (1967), 374 F.2d 894, 900.
8.j. I reasonably infer from the foregoing information that, to the exact extent to which a court unilaterally purports to be a non-civilian forum (i.e., military tribunal, military commission, court-martial, or otherwise), said court lacks subject matter jurisdiction over non-military personnel.

VIII. Conclusion.
9. To the extent to which the instant court, of its own knowledge, purports to be sitting as a court-martial and is now cognizant of the fact that I am not a member of the unorganized militia, nor of the inactive-duty or active-duty armed forces of The United States or of California, I respectfully suggest that the court make all and every effort(s) available to it upon its own motion to end this proceeding in respect to me in a timely manner.
10. 18 U.S.C.A. (2001), з 912 reads:

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.
11. For the benefit of any potential reviewing court:

...We may, however, inquire into the jurisdiction of the military tribunal, and, if the appellee was never in the military service of the United States, that tribunal was without jurisdiction."
(emphasis added) United States v. McIntyre (C.C.A., 9th Cir. (Mont.) 1925) 4 F.2d. 823, 824.
I certify within the laws of the State of California, that the foregoing is true, correct, and complete.
Dated: _______________________________
At: __________________________________
Signed: __________________________________________________

END

Related documents:
[Appearance:] [Motion to Dismiss:] [Declaration:]
Memorandum of Points and Authorities (assuming Admiralty):
Memorandum of Points and Authorities (assuming Administrative Agency):
More case cites:
E-mail me here:

THE STATE BAR OF CALIFORNIA	\|	Memorandum of Points
AND DOE(S) 1 thru 100	\|	and Authorities concerning
	\|	Courts-martial in California.
versus	\|
	\|	Case number [?]
Thomas Murrell Thornhill III	\|
(a natural born, adult man)	\|	at: 201 Church Street
	\|	Nevada City, California
_______________________________	/	Date: [?]