THE JUDICIAL COUNCIL OF CALIFORNIA

(an administrative agency)

doing business as

SUPERIOR COURT OF CALIFORNIA, COUNTY OF NEVADA

(a fictitious business)

THE STATE BAR OF CALIFORNIA	|	Notice of California Law
AND DOE(S) 1-100	|	concerning de facto government.
	|
versus	|
	|	Case number [?]
Thomas Murrell Thornhill III	|
(a natural born, adult man)	|	at: 201 Church Street
	|	Nevada City, California
_______________________________	/	Date: []

Declarant is a competent witness over the age of 18 years of age, has personal knowledge of these facts, and does Solemnly state that:

1.a. I am a natural born, adult white Man, one of the People of the United States of America and one of the People of California.

1.b. I am not a trained or licensed Attorney; of necessity, I am acting at all times within my right to defend my life, liberty, property, and privacy as explicitly set out in CALIFORNIA CONSTITUTION (2001), Art. 1, Sec. 1 (http://www.leginfo.ca.gov./.const/.article_1 [as of May 9, 2001]):

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

3.a. Black's Law Dictionary, 7th Ed. (1999), p. 427, defines "de facto" thus (angle brackets replaced by square brackets):

de facto ... [Law Latin "in point of fact"] 1. Actual; existing in fact; having effect even though not formally or legally recognized [a de facto contract] 2. Illigitimate but in effect [a de facto government] Cf. DE JURE.

DE FACTO GOVERNMENT. One that maintains itself by a display of force against the will of the rightful legal government and is successful, at least temporarily, in overturning the institutions of the rightful legal government by setting up its own in lieu thereof. Worthham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1145.

DE FACTO JUDGE. One who holds and exercises the office of a judge under color of lawful authority and by a title valid on its face, though he has not full right to the office, as where he was appointed under an unconstitutional statute, or by an usurper of the appointing power, or has not taken the oath of office. State v. Miller, 111 Mo. 542, 20 S.W. 243; Walcott v. Wells, 21 Nev. 47, 24 P. 367, 9 L.R.A. 59, 37 Am.St.Rep. 478; Dredla v. Baache, 60 Neb. 655, 83 N.W. 916; Caldwell v. Barrett, 71 Ark. 310, 74 S.W. 748.

What was the precise character of this government [nt: The Confederate States of America] in contemplation of law?
[8] It is difficult to define it with exactness. Any definition that may be given may not improbably be found to require limitation and qualification. But the general principles of law relating to de facto government will, we think, conduct us to a conclusion sufficiently accurate.
There are several degrees of what is called de facto government.
Such a government, in its highest degree, assumes a character very closely resembling that of a lawful government. This is when the usurping government expels the regular authorities from their customary seats and functions, and establishes itself in their place, and so becomes the actual government of a country. The distinguishing characteristic of such a government is, that adherents to it in war against the government de jure do not incur the penalties of treason; and under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will, in general, be respected by the government de jure when restored.
Examples of this description of government de facto are found in English history. The Statute 11 Henry VII, ch. 1, British Stat. at L. 82, relieves from penalties for treason all persons who, in defense of the King, for the time being, wage war against those who endeavor to subvert his authority by force of arms, although warranted in so doing by the lawful monarch. 4 Bl. Com. 77.
But this is where the ursurper obtains actual possession of the royal authority of the kingdom; not when he has succeeded only in establishing his power over particular localities. Being in possession, allegiance is due him as King de facto.
Another example may be found in the Government of England under the Commonwealth, first by Parliament, and afterwards by Cromwell, as Protector. It was not, in the contemplation of law, a government de jure, but it was a government de facto in the most absolute sense. It incurred obligations and made conquests which remained the obligations and conquests of England after the Restoration. [9] The better opinion doubtless is, that acts done in obedience to this government could not be justly regarded as treasonable, though in hostility to the King de jure. Such acts were protected from criminal prosecution by the spirit, if not the letter, of the Statute of Henry VII. It was held otherwise by the judges by whom Sir Henry Vane was tried for treason (6 St. Tr. 119), in the year following the Restoration. But such a judgment, in such a time, has little authority.
...
But there is another description of government, called also by publicists [nt: "Publicist. One versed in, or writing upon, public law, the science and principles of government, or international law." Black's Law Dictionary, 4 Ed. Rev. (13th Reprint, 1975), p. 1397] a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military power within the Territories, and against the rightful authority of an established and lawful government; and (2), that while it exists, it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience, rendered in submission to such force, do not become responsible, as wrong-doers, for those acts, although not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered, also, by civil authority, supported more or less directly by military force.
One example of this sort of government is found in the case of Castine, in Maine, reduced to British possession during [10] the war of 1812. From the 1st of September, 1814, to the ratification of the Treaty of Peace in 1815, according to the judgment of this court in U.S. v. Rice, 4 Wheat. 253, "The British Government exercised all civil and military authority over the place." "The authority of the United States over the territory was suspended, and the laws of the United States could no longer be lawfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conqueror. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose." It is not to be inferred from this that the obligations of the people of Castine as citizens of the United States were abrogated. They were suspended merely by the presence, and only during the presence, of the paramount force. A like example is found in the case of Tampico, occupied during the war with Mexico by the troops of the United States. ... These were cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory was part.
(emphasis added and notes in brackets added) Thorington v. Smith (1869), 8 Wall. (75 U.S.) 1, 19 L.Ed. 361, 363-364.

(a) When [parties] were elected by a plurality of the qualified electors, received their certificates of election, and qualified and participated in the actions of the board, they were there under color of office and presumptively entitled to the office. They were de facto officers in the discharge of the duties of a de jure office, and as such their acts while they remained such were as valid and binding as those of de jure officers. There must be a de jure office to be filled before there can be a de facto officer.
If the former exists, and the latter holds it under and pursuant to a regular commission purporting to empower him to act, his acts in such office, until his right thereto is judicially determined, the law holds upon principles of policy and justice to be valid so far as they involve the public and third parties, notwithstanding the personal liability of the incumbent for intruding into such office. A leading case upon the subject of officers de facto is that of State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409, in which Butler, C. J., after an exhaustive discussion of the doctrine, and a review of the English and American cases, uses the following language: "A definition sufficiently accurate and comprehensive to cover the whole ground must, I think, be substantially as follows: An officer de facto is one whose acts, though not those of a lawful officer, the law, upon the principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons where the duties of the office were exercised: 1. . . . . 2. . . . . 3. Under color of a known election or appointment, void because the officer was not eligible, . . . such ineligibility . . . . being unknown to the public."
(emphasis added) People v. Hecht (1895), 105 Cal. 621, 629-630.

(b) The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it. The law provides machinery for trying the title to an office in an action [nt: quo warranto] in which the officer is a party, and the right to the office is the question involved. To allow every person prosecuted for the violation of an ordinance, in the proceedings in which he is prosecuted, to question the legality of the formation of the municipal corporation, or the title to office of its various officers would lead to endless confusion, and embarrass the government of such municipal corporation. The taxpayer could refuse to pay taxes and defend a suit brought for their collection on the ground that the assessor was not the de jure assessor, or that the tax-collector was not the de jure tax-collector. A person charged with resisting an officer could defend upon the ground that the officer had not been legally elected or appointed, and so on through the various departments of the municipal government in its various business transactions with its citizens. It is hardly deemed necessary to cite authorities in support of the principles herein stated, but the following are in point: 1 Dillon on Municipal Corporations, 4th ed., p. 305; Mechem on Public Offices and Officers, sec. 330; McQuillin on Municipal Ordinances, sec. 96; 8 Am. & Eng. Ency. of Law, 2d ed., p. 823, and note; People v. Sassovich, 29 Cal. 485 [nt: 29 Cal. 480, 485 (1866), depub. 1996 as part of People v. Denmon, 46 Cal.App.4th 355-366.]; Hull v. Superior Court, 63 Cal. 176. [nt: 63 Cal. 174, 176 (1883).].
(notes in brackets added) Town of Susanville v. Long (1904), 144 Cal. 362, 365.

(c) Of course, election alone did not constitute [him] the incumbent of the office. The law required him, after receiving his certificate of election, to take the oath of office, and give bonds within the time required by law. If he failed to do these things according to law, and within the time required by law, the office was vacant. (Sections 907, 947, 996 Pol. Code; Payne v. San Francisco, 3 Cal. 125; People v. Taylor, 57 Cal. 620.) Until an officer-elect takes the oath of office and gives bonds according to law, he is not authorized to discharge the duties of the ofice. He is not an incumbent.
...
In the case of The People v. Clingan 5 Cal. 389, which was a proceeding by quo warranto against one who claimed to exercise the duties of sheriff of Marin County, the fact that the claimant acted as sheriff was, in connection with his certificate of election, held sufficient to raise the presumption that he had executed his bond and taken the oath of office....
Being the actual incumbent of the office, he was in possession under color of right; he was at least a de facto officer, and had a vested right to act as such until his right was questioned by some one in a proper proceeding for that purpose. Such a contest could not be originated by certiorari. It can be made only by an original proceeding by information in the nature of a quo warranto against him as incumbent of the office. (People v. Olds, 3 Cal. 176; People v. Scannell, 7 Cal. 432; Satterlee v. San Francisco, 23 Cal. 320; People v. Sassovich, 29 Cal. 480.)
(emphasis added) Hull v. Superior Court (1883), 63 Cal. 174, 175-177.

(d) Prohibition is not available as a remedy to prevent the acts of a de facto officer (People v. Board of Election, 54 Cal. 404; Le Comte v. Berkeley, 57 Cal. 269); nor to prevent judicial acts already done. The right ... can only be questioned in a proper proceeding by information in the nature of a quo warranto.
Hull v. Superior Court (1883), 63 Cal. 174, 179.

(e) The trial court ... expressed the view that: "Were this a direct attack by quo warranto as to his position as an Agency member or a challenge to him as a voter, considerable doubt would exist as to his status as an 'elector' of the City of Los Angeles."...
The de facto doctrine in sustaining official acts is well established. Present a de jure office, "Persons claiming to be public officers while in possession of an office, ostensibly exercising their functions lawfully and with the acquiescence of the public, are de facto officers. . . . The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of an office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it." (Town of Susanville v. Long (1904) 144 Cal. 362, 365 [77 P. 987]); see also Oakland Paving Co. v. Donovan (1912) 18 Cal.App. 488, 494-496 [126 P. 388]; Clark v. City of Manhattan Beach (1917) 175 Cal. 637, 639 [166 P. 806, 1 A.L.R. 1532].) ...
It is likewise established that the right of a de facto officer to an office cannot be collaterally attacked. (Oakland Paving Co. v. Donovan (1912) supra, at p. 496; Town of Susanville v. Long (1904) supra, at p. 365.) A right to hold office may not be collaterally attacked by a challenge to the official acts performed by the person holding such office. (Matter of Danford (1910) 157 Cal. 425, 431 [108 P.322].) The objectors' challenge in this proceeding is to the acts performed by Mr. Sesnon and not to his office and hence such challenge is collateral.
In re Redevelopment Plan for Bunker Hill v. Goldman (1964), 61 Cal. 21, 42-43, 37 Cal.Rptr. 74, cert. den. 379 U.S. 28, 13 L.Ed.2d 173, 85 S.Ct. 190.

A person will be deemed to be a de facto judge only if he is in possession of the office of judge and is discharging its duties,[35. ...Assigned judge was, at the very least, a judge de facto of court to which he had been assigned on day before his designation authorized him to act. Leary v. U.S., C.A.Cal. 268 F.2d 623.] and there cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office.[36. Johnson v. Manhattan Ry. Co. D.C.N.Y., 1 F.Supp. 809, reversed on other grounds, C.C.A. 61 F.2d 934, affirmed in part 53 S.Ct. 721, 289 U.S. 479, 77 L.Ed. 1331....] Mere possession of the office is not sufficient to make the incumbent a de facto judge;[37] to constitute him a de facto judge his incumbency of the office must be illegal in some respect,[38] and he must have color of title[39. Glidden Co. v. Zdanok, N.Y., 82 S.Ct 1459, 370 U.S. 530, 8 L.Ed.2d 671, rehearing denied 83 S.Ct. 14, 371 U.S. 854, 9 L.Ed.2d 93. ... Ensher, Alexander & Barsoom, Inc. v. Ensher, 47 Cal.Rptr. 688, 238 C.A.2d 250...] or his possession must have been acquiesced in by the public generally.[40. Ensher, Alexander & Barsoom, Inc. v. Ensher, 47 Cal.Rptr. 688, 238 C.A.2d 250...]

I certify within the laws of California, that the foregoing is true, correct, and complete.

Signed: _______________________________________

At: ___________________________________________

Dated: ________________________________________

END

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