Anatomy of a Frivolous Argument

While I’ve spoken about this many times, it keeps coming up so I figured I would do a formal analysis.  I’m well-aware this will have no impact on those who use this tactic to avoid discussion, such as lawyers and bureaucrats; this is for those who may be victims of this pernicious method of shouting down a valid argument.  Ironically, as will be shown, it’s those screeching “frivolous” that are usually raising a truly frivolous argument.  Yelling frivolous is a distraction technique, don’t be fooled by it.

Anyone who has ever challenged the legitimacy of government and the application of their sacred writ, called “laws,” will be familiar with this tactic.  When the accuser admittedly has no evidence, they just start shouting “frivolous argument” as if that magically creates facts to support their claim.

What is a frivolous argument?  There are usually two constants, it’s not just an argument lacking in merit or arbitrarily denied by a traffic court judge: “An appeal [argument] is not frivolous just because it has no merit” Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc., 164 Cal. App. 4th 1108, it must also be brought in bad faith:

frivolous.  So clearly and palpably bad and insufficient as to require no argument or illustration to show the character as indicative of bad faith upon a bare inspection…Strong v Sproul, 53 NY 497, 499.”  Ballentine’s Law Dictionary, 3rd Ed., page 503.

Black’s Law Dictionary adds to this (also quoting Strong v Sproul):

“…where it does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent…”  4th Ed, page 796.

A frivolous argument has three elements:

  1. lacks merit;
  2.  doesn’t controvert the material points; and
  3.  is brought in bad faith.

Now let’s look at an argument I wrote that’s been labeled “frivolous” by an administrative law judge in California and see if it meets this criteria.

“…the legal claims made against me have no factual support, the FTB knows this, and is proceeding against me anyway.”  The legal claim referenced is the claim the laws apply because the target of the assessment is physically in California or has a California source of money.  The FTB argues their laws created an obligation, it’s a foundational claim.

We know this because several agents told us, this includes counsel for the FTB.  When asked for the facts they relied on, they admittedly had nothing, counsel admitted this was an assumption (video below).  Those are the facts my argument is based on, the argument follows directly from the facts.

1. Does the claim have merit?  Yes; the FTB and IRS operate under the same presumption, they admit it; they claim their laws apply, gives them jurisdiction and creates obligations.

My argument is based on their admissions they don’t have evidence and don’t need evidence to support their claim.  So with the FTB claim, where they admit they have no evidence and the foundation of their assessment is an assumption, there is solid factual support.  Therefore, the argument is valid, it has merit because the facts support it.

The FTB and IRS are required to have evidence to support their assessments; lacking a foundational basis is referred to as a “naked assessment” to wit:

The determination of tax due then may be one “without rational foundation and excessive,” and not properly subject to the usual rule with respect to the burden of proof in tax cases. Helvering v. Taylor, 293 US 507.” United States v. Janis, 428 U.S. 433.

The challenge is based on this principle, while my challenge is not spelled out in this or other cases I’m aware of, the legal principle is what’s relevant. The FTB’s assessment is “without rational foundation” by their own admissions.

The argument has merit because it is based on a sound legal principle, supported by the agents’ own admissions.

2.  Does it “controvert the material points” made by the FTB or IRS?  Yes; by their own admission they operate under the presumption the laws apply because you’re physically in California or have a California source of money; and by their own admission they have no evidence, it’s an assumption.  It’s logical and consistent with the facts.

3.  Is it brought in bad faith?  No; it’s based on facts, and a sound legal principle that “controverts the material points” raised by the FTB or IRS.  It’s a logically, legally, and factually consistent argument.

None of the three elements of a “frivolous argument” are present proving the argument is not frivolous; it may be wrong, but it’s not frivolous.  It’s possible the facts as alleged are not true, but that is what a hearing is for, to determine if the alleged facts are true.  In the above video you can hear the agent admit the assessment’s foundation, the applicability of the laws, is an assumption.  An assumption is not a “rational foundation.”

If it’s obvious it’s not a frivolous argument, then why do tax agents and their lawyers (with and without black robes) insist it is and threaten thousands in sanctions?   Because they have a vested interest in the system taking property by force (taxation).  They are the ones raising an argument that has no rational foundation and is brought in bad faith.  I’ve had tax agents claim they don’t need evidence.  That’s frivolous, not pointing out their claim lacks factual support.

What they are really saying is just challenging their foundational claim is somehow a frivolous argument or calling out their frivolous argument is itself frivolous.  That is proof of bad faith.

What they do is strawman the actual position claiming:

“Appellant’s inquiry is entirely nonsensical, and while we are unsure of the exact import of this statement, it appears to be based on the meritless contention that California does not have jurisdiction to impose a personal income tax on appellant.”

No, the contention is: the FTB admitted their foundational claim is the constitution applies because there was California source of money.  When asked for evidence, they admittedly had none and agreed it was an assumption.  We have never made the above claim, this is done to justify ignoring the actual issue. They know what the actual issue is because the “entirely nonsensical” argument is cited just before the above quote:

“Moreover, in her briefs, appellant states that she had previously contacted FTB staff and [FTB counsel] regarding the proposed assessments at issue, and that these individuals failed to provide evidence that the “constitution” applied to her.”

First, the claim is not “entirely nonsensical” it’s based on the FTB’s own admissions and used as an insult, they also use “legalistic gibberish.”  What this administrative law judge really thinks is frivolous, is challenging the FTB’s claim the laws apply to appellant.  Questioning the FTB’s legal claim is the frivolous argument to him.  This cow is so sacred to this bureaucrat he’s threatening a five-thousand dollar sanction for just questioning it and pointing out it’s admittedly an assumption.  Like the pope admitting he just assumes the gods are real and anyone quoting him is raising a frivolous argument.  By the way, this is the same bureaucrat allowing the FTB to lie with impunity in their pleadings.  No bias there I guess.

Some claim the courts have already ruled the argument frivolous for decades as if that changes anything, it doesn’t.  Because just as this ALJ is wrong, so are the courts for the reasons above.

It must also be noted they are not addressing this actual argument in those cases, just like the ALJ does here.  If you look at the cases, the frivolous arguments are all arguments of legal interpretation, not issues of fact.  This ALJ cites Appeals of Dauberger (82- SBE-082) 1982, as support; the type of arguments included are: wages not income without meaning of statute, not a taxpayer within meaning of statute, federal reserve notes are not legal tender, and the Fifth Amendment prohibits the requirement to file a tax return.  Not a single issue of fact cited as a frivolous argument.

If it’s truly frivolous to challenge this legal claim, then that’s proof the system is rigged.  Irrefutable presumptions are unfair and violate due process because they cannot be challenged, there is no defense, even against an assumption, Vlandis v. Kline, 412 US 441. Yes, this is about legislative presumptions, but the principle of fairness is what is relevant because due process requires notice and opportunity to defend at a meaningful hearing, Goldberg v Kelly, 397 US 254 (1970).

It’s not a so-called “frivolous argument” to point out someone’s foundational claim is admittedly an assumption, it’s a statement of fact.

So when they start chanting frivolous, call them on it, ask them what makes an argument frivolous and not just wrong.  Ask them to point out what part of the argument is false; because the underlying facts are not and since the conclusion is drawn directly from the facts, the conclusion is accurate.

The argument the FTB or IRS has failed to support their claim the constitution applies, has merit because 1) it is based on their own admissions, 2) it controverts material points because they admit to not having evidence, and 3) because it’s based on a sound legal principle and the FTB’s own admissions, there is no bad faith.

Regardless of the chants from lawyers and bureaucrats, the argument is not frivolous.

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Another Criminal Traffic Dismissal – Prosecution Withdraws Complaint

Congrats to William for defending himself and getting a criminal complaint kicked out.  Instead of providing the evidence to support their claims, the prosecution dropped the charges. If they had evidence proving their claims of jurisdiction and the laws were violated, then they would have provided the evidence.

William filed the motion to dismiss I have available here; the basic argument is the prosecution has failed to meet even a prima facie burden of proof on personal and subject matter jurisdiction.  Not being able to provide any evidence proving their claim the laws apply, the prosecution withdrew.

 

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5 Tips to be Effective in Court

Getting traffic tickets sucks and defending yourself in court is a daunting task, but can be well worth the effort.  You can be held in contempt for asking a question and let’s face it, traffic courts are run by criminals who are not interested in being fair.  But, despite that, we still get tickets thrown out.  Below are five proven tips to help you be more effective in court.  Many of us have gotten tickets thrown out on four continents using these basic principles.

First, you have to adamantly challenge the prosecutor’s claims against you.  I know this seems obvious, but those who have experienced the legal system know this is often overlooked in an effort to get a deal or just from fear of the process.  Prosecutors are not our friends, be professional, but remember they are adversaries and they have no problem being unethical with us.

Second, do not extend the prosecution any sacred cows, none of their claims are exempt from challenge.  It doesn’t matter if you think it’s obvious and may already know the answer, make them meet their burden.  You may even feel uncomfortable challenging what you think is obvious, such as jurisdiction, but realize the prosecution needs you to give them a free pass as they will not be able to prove jurisdiction.  They may try to use intimidation tactics, such as gaslighting and threatening jail to get you to stop challenging them, call them out on their bully tactic and stick to your challenge.

This, with tip #3, can be all that’s needed to get enough leverage over the prosecutor for them to withdraw their complaint or make you an offer you can live with.

Third, just ask questions, leading questions.  You don’t have a burden of proof, that lies with the accuser, the cop or prosecutor.  If you’re making statements, then you take upon yourself a burden and that takes pressure off the prosecutor.  Never allow the focus to be taken off the prosecutor’s claims, we have to be unrelenting when holding the prosecution to their burden.  If you have to make a statement, make sure the burden stays on the prosecution e.g., the prosecution has no evidence proving jurisdiction.

A leading question is a yes or no question where the information is given in the question, it suggests the answer.  An example is: You alone determined you had probable cause to stop me?

Fourth, only accept responsive answers to your questions.  This is really important as lawyers and cops tend to say anything to avoid answering a question that damages their case.  Judges may also try to intimidate you as they are very pro-prosecution, many being former prosecutors.  But that is bullying and could be a denial of effective cross-examination if done when you are questioning the police officer when he’s on the witness stand.  A denial of cross-examination is one of the worst errors a judge can commit, so if they rule against you, then you stand a very good chance at a reversal on appeal.

Role-playing is necessary to prep for court as you can sharpen your skills and better identify non-responsive answers.  I have a Skype chat room to help with that, most participating have experience in the courts defending against tickets.  Watching interviews with politicians will also help you recognize this.  One of the best things about leading questions is that it’s easy to know when you get a non-responsive answer as they should only be answering yes or no.  To watch a typical politician dodge questions, watch interviews with Kellyanne Conway.

Off point objections are included here.  Many times prosecutors will object to a question we ask the cop about his prior statements/testimony; below is a common example:

Marc: Did you alone determine you had jurisdiction over me?

Cop: Yes.

Marc: What facts did you rely to prove you had jurisdiction over me?

Prosecutor: Objection, calls for a legal conclusion!

This objection has nothing to do with the question that’s about the facts the witness relied on.  Being non-responsive is an effective way to derail an investigation/cross-examination and can also get you upset and off point.

Fifth, assume everything the cop, prosecutor and judge say is a lie.  This doesn’t mean everything is a lie, but you will more readily object and challenge their claims.  Since most of what they say is a lie, this serves us well.

A common tactic judges use against us is called cherry picking, where they will make a statement that may sound true but deliberately leave out key information.  This is usually necessary when giving non-responsive answers.  An example is how judges lie about about jurisdiction when we challenge the prosecution.  Judges typically lie claiming: “jurisdiction is a trial issue, it is not appropriate to challenge at arraignment.”  They will try to convince you by saying you can challenge at trial where the prosecution has to prove it beyond a reasonable doubt.  This is not true as the prosecution as a prima facie burden that must be met before the matter can be set for trial.

A comprehensive model to effectively defend yourself is in Government: Indicted.  I also have templates and scripts available.  The No State Project is also live twice a week to help you through the process.

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4 More Charges Dismissed in New York

Four charges, one that started as a felony, dismissed in New York.  A big congrats and thanks for letting me post this.  It is redacted because the defendant asked me, and the file is sealed.

As reported to me, while the defendant was in jail, an attorney was forced on him, he objected and insisted if there was an attorney involved, then is could only be as standby.  Good thing he was able to defend himself as all the attorney could offer was for him to pay what the prosecutor was asking.

Instead he filed the motion to dismiss and discovery/Brady request.  Instead of provided the evidence and witness with personal knowledge of the matters they were to testify on (the laws applied and the defendant violated them), the prosecution failed to file a certificate of readiness as required by state law.  The judge then dismissed all four charges.

While it is plausible that the failure to comply was due to the prosecutor’s office being so busy, it was not a priority, or it was an oversight.  Given how vigorously they were prosecuting the defendant, the more plausible explanation is the prosecution could not meet their burden of proof and simply ran the clock.

While both explanations are plausible, we have to ask: But for the defendant’s defense, would the prosecution have run the clock and just given up?  Possibly yes, but most likely, because we know without doubt the prosecution cannot meet their burden, it was because of the defendant’s defense.

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Another Ticket Dismissed on Appeal

A listener got a traffic ticket kicked out on appeal in Delaware.  Yes, it was a parking ticket, but we’re making the same challenges we do in more serious charges, such as personal jurisdiction.

Everything was just ignored at the trial, this is typical with parking tickets.  So an appeal was done and the motion to dismiss was again filed.  As you can see below, the ticket was voided.

So congrats for standing up to these predators and thanks for sending me the proof.

 

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Traffic Ticket Dismissed in Florida

Congrats to Lorenzo for defending himself against the predators in Florida and getting a dismissal.  While there is no direct evidence the failure of the judge and prosecutor to respond in eight months to the motion to dismiss and discovery request led to the dismissal, I don’t think we can totally discount that.

The direct evidence only proves the complaint was dismissed because there was no trial within the required 180 days.  But, there is still the question of why there was no trial.  The motion to dismiss is based on a lack of evidence proving personal and subject matter jurisdiction.  The discovery request only sought such evidence and witness with personal knowledge.

If the prosecution could meet their burden, they would just provide the evidence, even if to lie saying jurisdiction is a trial issue only.  Looks like they ran the clock to avoid the issue completely.

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