Your Right To A Counsel Of Your Choice

[Shuftin]

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
COUNTY OF DUPAGE, STATE OF ILLINOIS

Named Person,

Plaintiff, "at law"

vs.

, Inc.

Defendant(s). )
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) Case No. 2003 MR000436

MOTION FOR CONSTITUTIONAL COUNCIL

Comes now, Named Person, by and through her Constitutional Counsel, TJ Henderson, Herein after, Plaintiff. Plaintiff waives no rights known or unknown, stated or unstated. Plaintiff herein submits this answer in support of Plaintiff’s 7th Amendment Rights and that Plaintiff can show reason why this court should grant an order dismissing any and all Motions filed by Defendant and enter judgment in favor of Plaintiff. (This may change from time to time. Change to the case that best fits your case)

Judicial notice of Constitution and laws. Every court of this state shall take judicial notice of the Constitution, common law, civil law, and statutes of every state, territory and other jurisdiction of the United States. (Emphasis added)


(a) I, the Plaintiff or Defendant, , of Heaven, as such endowed by God with unalienable Rights, confirmed and guaranteed by the Constitution of the united States of America and claimed herein. We, Plaintiff or Defendant and Council hereby notice this court that under any law of Illinois which would perceive to be the Unauthorized practice of law@ would be administrative in nature; therefore this court is on notice that under such law and notice, the Judge is nothing more than an administrative hearings officer. As such, the Judge only has qualified immunity, which means, violate our right to contract and Plaintiff’s or Defendant’s right to council of choice as enumerated by our forefathers in the 1st, 6th, 7th and 9th Amendments to the Constitution for the united States of America, the Plaintiff and Council will take lawful action.
(b) Plaintiff or Defendant and Council are enforcing all Plaintiff’s or Defendant’s rights; among which is my right to counsel; counsel being my choice of a party to assist and counsel me in my defense, and to speak freely on my behalf, under my direction, and to act as my agent for the purposes of this action; appearing with me and speaking for me at my discretion, as a matter of my rights secured and protected by the Constitution for the united States of America. This counsel will be Timothy James, Henderson, who will speak for me in all matters.

GUARANTEED RIGHT
(c) This right to counsel of choice is protected by the Constitution for the united States of America; specifically the First Article of the Bill of Rights, in the matter of freedom of speech, the right to assemble peaceably, and the right to petition the Government for redress of grievance; also the Fifth Article of the Bill of Rights concerning due process of law; the Sixth Article of the Bill of Rights, and also the Ninth Article of the Bill of Rights, concerning the vast area of rights held by the people as the ultimate sovereigns;
(d) The meaning of the above words is that no man shall be deprived of his property (rights) without being heard in his own defense. Kinney v. Beverly 2 Hen. & M (VA) 318, 336.
I, Elizabeth Ann, Grady, in my exercise of the above freedoms and rights, will not waive my right to have counsel of choice, as a matter of due process.
(e) The right to defend and to be heard in my own defense shall not be limited in its exercise by statutes or by rules of the court; this by order of the supreme law of the land: The Constitution for the United States of America. Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.@ Miranda v. Arizona 384 US 436.
(f) A state can not, by evoking the power to regulate the professional conduct of attorneys, infringe in any way the right of individuals and the public to be fairly represented in lawsuits authorized by Congress to effectuate a basic public interest. Laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully adversaries@, cf. Gideon v. Wainright, 372 US 335, and for them to associate together to help one another to preserve and enforce rights granted them under federal laws cannot be condemned as a threat to legal ethics.@ Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 US 1, 7.
(g) I, the Plaintiff or Defendant, claim my right to be heard under the law of the land, and by the modes and procedures of the common law, as a matter of due process. Those statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of the common law, would not be the Law of the Land.@ Hoke v. Henderson 15 N.C. 15, 25 Am. Dec. 677.

I demand that the court not uphold any mode or follow any procedure which would abrogate the Constitution for this State and the Constitution for the United States of America.
(h) The Fifth article of the Bill of Rights of the Constitution for the united States provides:
"No person shall be deprived of life, liberty, or property without due process of law." A similar provision exists in all the State constitutions; the phrases "due course of law," and the "law of the land" are sometimes used; but all three of these phrases have the same meaning and that implies conformity with the ancient and customary laws of the English people or laws indicated by Parliament.@ Davidson v. New Orleans, 96 US 97, 25 L.Ed. 616.
(i) I, the Plaintiff or Defendant, also demand that the court not uphold any unconstitutional applications of any statutes. All laws which are repugnant to the Constitution are null and void.@ Chief Justice Marshall, Marbury v. Madison 5 US (1 Cranch) 137, 174, 176. (1803) upheld nearly 400 times in the ensuing nearly 20 decades (and never overruled or reversed). The duty of the court is to insure the Constitution is construed in favor of the citizen.@ Byars vs U.S., 273 US 28. AThe Court is to protect constitutionally secured rights.@ Boyd v. U.S., 116 US 616
(j) I, the Plaintiff or Defendant , have an unlimited right to appoint a representative to act in my behalf, and such act cannot be made into a crime by this court or by the legislature. The claim and exercise of a Constitutional right cannot be converted into a crime.@ Miller v. U.S. 230 F. 486 at 489.
(k) I, the Plaintiff or Defendant, require that the court apply no laws that would abrogate my rights, and that the court answer to its duty to guarantee to me, my due process of law in all proceedings. I contend on good authority (the Constitution and Supreme Court standing case law) that the legislature cannot violate my right to counsel of choice, as such act would be unconstitutional. Furthermore, the Illinois State Bar association is nothing more than a private club and is not any form of state agency and does not speak for the state and does not act for the state and has no power to control the lives of private citizens. It was held that a state may not pass statutes prohibiting the unauthorized practice of law or interfere with the right to freedom of speech, secured in the first Amendment.@ United Mine Workers v. Illinois Bar Association, 389 US 217.
(l) As in the doctrine of the 9th Amendment, the fact that the 10th Amendment secures a right to counsel in all civil matters, cannot be construed to deny that right, to say nothing of the right to peaceably assemble, and to petition the Government, and to defend one's life, liberty, and property in the courts. Any rule of procedure, for the court, is there precisely to guarantee due process of law to the private Citizen as a matter of right.
(m) What is a counsel?@ What is a attorney?@ The terms "attorney" and "counsel" are Common Law terms. "It has been held, and is undoubtedly the law, that, where common law phrases are used in an indictment or information, such phrases must have common law interpretation." Chapman vs People, 39 Mich. 357-359; in re richter (D.C.) l00 Fed. 295-297


(n) The meaning of the Common Law terms is quite clear and the term "Assistance of Counsel" does not necessarily mean that "Counsel" will be a licensed attorney. Certainly a licensed attorney may be a counselor, but all counselors may not be licensed attorneys.
With Counsel being defined from Bouvier Dictionary, 3rd Ed.: COUNSELLOR AT LAW, offices,
1. An officer in the supreme court of the United States, and in some other courts, who is employed by a party in a cause, to conduct the same on its trial on his behalf. He differs from an attorney at law. (q. v.) (Emphasis added)
2. In the supreme court of the United States, the two degrees of attorney and counsel are kept separate, and no person is permitted to practice both. It is the duty of the counsel to draft or review and correct the special pleadings, to manage the cause on trial, and, during the whole course of the suit, to apply established principles of law to the exigencies of the case. 1 Kent, Com. 307. (Emphasis added)
"Attorneys are responsible to their clients for negligence or unskillfulness; but no action lies against the counsel for his acts, if done bona fide for his client. In this respect therefore, the counsel stands in a different position from the attorney." Swinfen v. Swinfen, 1 C. B. N. S. 364, 403
"English attorneys-at-law (called solicitors since the judicature act of 1873 took effect) were not members of the bar, and were not heard in the superior courts and the power of admitting them to practice and striking them off the roll had not been given to the inns of the court. That part of the profession which is carried on by attorneys is liberal and reputable, as well as useful to the public...and they ought to be protected where they act to the best of their skill and knowledge. But every man is liable to error...A counsel may mistake, as well as an attorney. Yet no one will say that a counsel who has been mistaken shall be charged with the debt. The counsel, indeed, is honorary in his advice, and does not demand a fee: The attorney may demand compensation, but neither of them ought to be charged with the debt for a mistake." Pitt v. Yalden, 4 Burr. 2,060, 2,061
"An attorney-at-law ...is one who is put in the place, stead, or turn of another, to manage his matters of law.
(o) The intent of the founding fathers was pretty clear and it is also axiomatic in Law that it is the intent of lawmakers that is law; not the interpretations of others.
"The intention of the lawmaker constitutes the law." Stewart v Kahn, 11 Wall, 78 U. S. 493, 504
"As the meaning of the lawmaker is the law, so the meaning of the contracting parties is the agreement." Whitney v Wyman, 11 Otto, 101 U.S.
(p) It has been repeatedly upheld in the courts that:
"The framers of the statute are presumed to know and understand the meaning of the words used, and where the language used is clear and free from ambiguity and not in conflict with other parts of the same act, the courts must assume the legislative intent to be what the plain meaning of the words used import." First National Bank vs United States, 38 F (2nd) 925 at 931 (March 3, 1930).

"A legislative act is to be interpreted according to the intention of the legislature, apparent upon its face. Every technical rule, as to the construction or force of particular terms, must yield to the clear expression of the paramount will of the legislature." 2 Pet. 662
"The intention of the legislature, when discovered, must prevail, any rule of construction declared by previous acts to the contrary notwithstanding." 4 Dall 144 "The intention of the law maker constitutes the law." U.S. v Freeman, 3 HOW 565; U.S. v Babbit, 1 Black 61; Slater v Cave, 3 Ohio State 80.
(q) Then, what was the intent of the founding fathers? The founding fathers wrote the Constitution in plain simple language and used words that every one of that day could understand. The Constitution was written that way to insure all the people could understand its meaning, otherwise, there was no way the people would submit themselves to it. Hadn't they just rid themselves of a tyrant King? Therefore, each word was chosen very carefully and we need only understand the meaning of the words used in those days. In referring to the American Dictionary of the English Language, First Edition, Noah Webster, 1825, we find the following Definitions:
"COUNSEL, n...which is probably from the Hebrew...Those who give counsel in law; any counselor or advocate, or any number of counselors, barristers, or servants; as the plaintiff's counsel, or the defendant's counsel..."
We all need to remember that many of the authors of the Constitution were members of the legal profession, and isn't it interesting that Webster's definition clearly omits any reference to "lawyer" or "attorney" as being counsel? Whatever "COUNSEL" is, counsel can represent both a plaintiff and a defendant.
The word advocate was defined as:
"ADVOCATE n...To call for, to plead for...In English and American courts, advocates are the same as counsel, or counselors..."
The word Barrister was defined as:
"BARRISTER, n. (from bar) A counselor, learned in the laws, qualified and admitted to plead at the bar, and to take upon him the defense of clients;..."
In neither definition are there any references to "lawyers" or "attorneys," nor is anything specifically mentioned about qualifications other than "learned in the laws," and "qualified." Nothing is mentioned about being approved by the Supreme Court nor any other agency or entity. The word attorney was defined as:
"ATTORNEY, n. One who takes the turn or place of another...One who is appointed or admitted in the place of another, to manage his matters in law. The word formerly signified any person who did business for another; ...The word answers to the procurator, (proctor) of the civilians..."
"Attorneys are not admitted to practice in courts, until examined, approved, licensed and sworn by direction of some court; after which they are proper officers of the court."

(r) It is important to notice that an attorney could act "FOR" or "IN PLACE OF" an individual, whereas counselors were restricted to "PLEADING FOR" and "GIVING" of "ADVICE AND COUNSEL" in the presence of the Plaintiff or client. Counselors had no authority to "ACT FOR" or "IN PLACE OF" any client.
(s) In those days it was commonplace to handle one's own case, thereby, acting in Proper Party on one's own behalf in court. However the court room is an awesome and lonely place when everyone else in the room is a member of the court. Whenever desired, the Plaintiff or the plaintiff could have a friend in the court--A counselor. A friendly person who could and would "SPEAK FOR HIM" or "ADVISE HIM" in court proceedings and matters of law.
(t) Counselors were persons who took pride in their knowledge of the law and used it to the good of the people. They were advisers of the people and, as such, may or may not have been able to collect fee for their services. Under the Common Law, they could charge for their services but could not use the force of law to collect a fee.
(u) Attorneys, on the other hand, were agents of the court, an "officer of the court," who could be "appointed or admitted in place of another to manage his matters in law." Attorneys were schooled in the law, "examined, approved, licensed and sworn, by the direction of some court." As such, they could charge for their services and demand payment under force of law.
(v) Without doubt, the founding fathers knew well the meaning of the word "COUNSEL," and they used that word so the people would be "FREE" to choose counsel of their choice, who may or may not be an attorney. It has only been the rulings of the monopolistic American jurisprudence system that has continuously denied individuals the RIGHT of "ASSISTANCE OF COUNSEL" to the American public.
(w) It has long been recognized under the Common Law that attorneys were different from "counselors."
(x) The Supreme Court of the United States recognizes that there were separate functions and responsibilities for "attorneys" and "counselors" as the two different rolls were maintained by the court. "His name should be taken from the roll of attorneys, and placed on the list of counselors." Ex Parte Hallowell, 3 Dal 411, Feb. 1799.

(y) The usage of these words clearly separates functions and responsibilities of attorneys from counselors. "Under both our Federal and State Constitutions, a defendant has the right to defend in person or by COUNSEL of his own choosing." People v Price, 262 N.Y. 410, 412, 187 N.E. 298, 299. "This fundamental right is denied to a defendant unless he gets reasonable time and a fair opportunity to secure counsel of his own choice and, with that counsel's assistance, to prepare for trial." People v McLaughlin, 53 N.E. 2d Series 356, 357. "Justice requires that a party should be permitted to conduct his cause in person (subject to reasonable requirements of propriety), or by any agent of good character, and that the test of the agent's character should not be so rigorously applied as to imperil the constitutional right to a fair trial." Concord Mfg. Co. v Robertson, ante, pp. 1, 6, 7. "It is the responsibility of the court to insure that the court indulge every reasonable presumption against the waiver of fundamental rights." Aetna Ins. Co. v Kennedy, 301 US 389. "Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the Plaintiff." Glasser v US, 315 US 68, 70. The trial court must protect the right of the defendant to have the assistance of counsel. "This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the Plaintiff. While an Plaintiff may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record." Johnson v Zerbst, 304 US 458, 465.
(z) The constitutional right of Assistance of Counsel is not qualified to only someone who has received a license from some supreme court or other alleged authority.
(aa) Since the United States Constitution was ordained and established by the people for their protection, not for the protection of a legal society, and since it may not be superseded or amended by any act of Congress or by any other "law" of this or any other state, this Defendant demands the right to exercise such right, and will choose either Counsel or Co-counsel, or both, to help me with my case. When the Constitution was written and ratified, the Bar Associations did not exist. Therefore, it is simply an absurdity to conclude that the Constitution ever contemplated that only Bar Licensed Attorneys could appear as counsel for an Plaintiff. AIn all criminal prosecutions, the Plaintiff shall enjoy the right...to have the Assistance of Counsel for his defense.@ 6th Amendment to the U.S. Constitution.
(bb) The language of the Sixth Amendment quoted above is quite clear, unambiguous, and is very precise, and the men who were responsible for its form, very learned and skilled in the Law, and in fact, many were attorneys. Therefore, the conspicuous lack of the words "attorney" or "attorney-at-law" is notable indeed! "While the Bill of Rights was being debated and argued, the same members of Congress were in the process of passing the First Judiciary Act of September 24, 1789. The very same day the President signed this bill, the House and Senate were finally coming to an agreement on the express and explicit language and form of the Bill of Rights. Therefore, their meanings are to be compatible." Williams v Florida, 399 US 78; 90 S. Ct. 1895, 1904.
(cc) Therefore, it is absolutely clear that the explicit language and form of the First Judiciary Act of 1789 were and are the meaning of the Sixth Amendment. The First Judiciary Act states in part: Sec. 35. AAnd be it further enacted, that in all the courts in the United States, the parties may plead and manage their own causes personally OR by the assistance of such counsel OR attorneys at law as by the rules of the said courts respectfully shall be permitted to manage and conduct causes therein." First Congress, Session I, Chapter 20, Page 20. 1 Stat. at L.(p.92). Also Section 30, page 89 also refers to counsel as: "...not being of counsel or attorney to either of the parties..."

(dd) It is notable that this statute does not mention only criminal matters, but simply states "all courts."
(ee) It is the individual who has the absolute Constitutional RIGHT to "ASSISTANCE OF COUNSEL" under the Sixth Amendment. It is the "Will of the private Citizen" who reign supreme---not the Bar Associations. Numerous court cases support the individual's right to counsel. Some are:

"The fundamental right of the Plaintiff to representation by counsel must not be denied or unreasonably restricted." Poindexter v. State, 191 S.W. 2d 445.
"While the Constitution guarantees to a defendant in a criminal case, the right to be heard by counsel, it also allows him to be heard 'by himself' and where he elects to appear for himself rather than by an attorney, he cannot be compelled to employ counsel, or to accept services assigned by the court." People v. Shapirio, 188 Misc 363.
"The right of counsel is not formal but substantial." Snell v. U.S., 174 F. 2d 580.
(ff) I, the Plaintiff or Defendant, claim and demand that the "RIGHT" to "Assistance of Counsel" is as imperative, necessary, and essential, as any other right to "Life, Liberty and the Pursuit of Happiness". It is a prerequisite to a proper defense of my life, liberty, and property that has been endangered by the unlawful, apprehension and restraint of myself. The "RIGHT" to "Assistance of Counsel" may not be limited to any condition because,”it is one of the fundamental rights of life and liberty." Robinson v. Johnson, (DC-CAL) 50 F. Supp 774. And finally, "The right to effective "Assistance of Counsel" in a criminal proceeding guaranteed by this amendment is a basic and fundamental right secured to every person by the Due Process Clause of the Fourteenth Amendment." Armine v. Times, (CCA 10), 131 F. 2d 827.
(gg) The Plaintiff or Defendant has the "RIGHT" to counsel and because of the above authorities he intends to have "Assistance of Counsel" of MY choice. Inasmuch as this right was once well known and understood to be the "RIGHT" of the people as defined in the "Will of the Sovereign People's" Constitution. I, the Plaintiff, here and now assert my "RIGHT" and take it back. No governmental entity was ever properly given power or authority, by the "Will of the Sovereign People," to take such a "RIGHT" away. "If the state should deprive a person the benefit of counsel, it would not be due process of law." Powell v. Alabama, 287 U. S. 45, 70.
(hh) By definition of the word "Code", one can see that statutes are regulatory law. Bouvier's Law Dictionary, (1914)
"A body of law established by the legislative authority of the state, and designed to regulate completely, so far as a statue may, the subject to which it relates."
I contend that, "attorneys and counselors at law", and those who follow the profession of "practicing law", and those who charge a fee for their services, as lawyers and attorneys are the only persons who are regulated by code. Also it should be noted that those persons defined in the Code come into the court as a matter of their own interests, for they receive a reward for this occupation.

(ii) I, the Plaintiff or Defendant, am simply asserting my right to defend, and that this involves appointing an agent or agents to accompany me and, if necessary, to speak also at my direction. Therefore let the court note that this Citizen(s) acting as an agent(s) for the Plaintiff comes into the court at my request and at my direction, in my interest, and not of their own interests or hope of pecuniary gain. In this regard, they are counsel, in the fundamental constitutional sense, and lack those characteristics of attorneys or lawyers, and cannot be said in any language, to be "practicing law" or "holding themselves out for hire", or as "qualified to carry on the calling of a lawyer."
(jj) It is Plaintiff or Defendant who assess their qualifications; I who calls them into court; it is my interests they hold in regard and seek to assist in protecting. I will appeal any coercive or threatening attempts to hinder the effectiveness of my counsel, or their presence in these proceedings, which acts will violate due process of law as secured to me by the Constitution for the United States of America, the supreme law of the land.
(kk) The statutes also show what an attorney is by definition in that he collects a fee, or makes a charge, and he practices law. The intent of the law-makers is clear -- they are regulating the profession of the practice of law, which attorneys and lawyers carry on. Let the court note that the Accuses is not bringing a lawyer into court, to practice law, but someone whom he trusts to know the law, not practice it.
(ll) Further, this court cannot act in the Plaintiff’s or Defendant’s behalf and seek to exercise their conscience for me, or my choice, by directing me to bring only a certain class of persons into the court to counsel me. This in itself is a violation of my free exercise of my right to seek the assistance of counsel, and to enjoy counsel of choice. There may not be a lawyer in the land who can comprehend, act in, sympathize with, or research, this Plaintiff’s defense. No, the court cannot assume this responsibility, but must assume a role as impartial referee of the proceedings, in this regard, and allow me, the Plaintiff, to make my own defense; of, by, and for myself with counsel of my own choosing.
(mm) No statute or Code can work to violate the common law rights of the private Citizen. Statute: This word is used to designate the written law in contradistinction to the unwritten law.@ Bouvier's.
(nn) The unwritten law, of course, is the common law, which is that system of law guaranteed to the private Citizen by the due process clauses of the Constitution for the United States. "The adoption of the 14th Amendment completed the circle of protection against violations of the provisions of the Magna Carta, which guaranteed to the private Citizen their life, liberty, and property against interference except by the >Law of the Land,= which phrase was coupled in the petition of right with due process of law. The latter phrase was then used for the first time, but the two are generally treated as meaning the same. AThis security is provided as against the United States by the 4th and 5th Amendments and against the States by the 14th Amendment". Davidson v. New Orleans 96 US 97.
(oo) As cited above, the meaning of the due process clause is that the common law shall be the inalienable right of every private Citizen, nor can it be removed from them by mere statutes. No new systems of law can be forced upon him. I have the right to live under the protection of the Constitution; it is my birthright.

(pp) In spite of possible encroachments by the legislature, and in spite of private interests, which would restrict the exercise of a right, the fundamental law raises above all private concerns, such as that of the legal professions which are interested in protecting their monopoly with the aid of the authority of the bench. The Constitution is worthy of the court's full devotion, and the office of a judge should not be used to further the extensive conspiracy which received this denunciation from a private Citizen.
In Closing, AWoe to those who decree unjust statutes and to those who continually record unjust decisions, to deprive the needy of justice, and to rob the poor of their rights.

Respectfully submitted this day of , 2003.