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Implied Consent – N.B. Frost Trucking

In Defense of Humanity w/ AL Whitney – April 14, 2018 Hour 1

Hr. 1: https://media.blubrry.com/rbn/b/content.blubrry.com/rbn/stream_2018-04-14_185933.mp3

Hr. 2: https://media.blubrry.com/rbn/b/content.blubrry.com/rbn/stream_2018-04-14_195933.mp3   

Implied consent.

That manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption or inference that the consent has been given. An inference arising from a course of conduct or relationship between the parties, in which there is mutual acquiescence or a lack of objection under circumstances signifying assent. Allstate Ins. Co. v. State Farm Mutual Automobile Ins. Co., 260 S.C. 350, 195 S.E.2d 711, 713 (use of motor vehicle). For example, when a corporation does business in a state it impliedly consents to be subject to the jurisdiction of that state’s courts in the event of tortious conduct, even though it is not incorporated in that state.

Courts of equity have established the rule, that when the true owner of property stands by, and knowingly suffers a stranger to sell the same as his own, without objection, this will be such implied consent as to render the sale valid against the true owner. Story on Ag. § 91 Story on Eq. Jur. § 385 to 390. And courts of law, unless restrained by technical formalities, act upon the principles of justice; as, for example, when a man permitted, without objection, the sale of his goods under an execution against another person. 6 Adolph. & El 11. 469 9 Barn. & Cr. 586; 3 Barn. & Adolph. 318, note. 9. The consent which is implied in every agreement is excluded, 1. By error in the essentials of the contract; vis, if Paul, in the city of Philadelphia, buy the horse of Peter, which is in Boston, and promise to pay one hundred dollars for him, the horse at the time of the sale, unknown to either party, being dead. This decision is founded on the rule that he who consents through error does not consent at all; non consentiunt qui errant. Dig. 2, 1, 15; Dig. lib. 1, tit. ult. 1. 116, § 2. 2. Consent is excluded by duress of the party making the agreement. 3. Consent is never given so as to bind the parties, when it is obtained by fraud. 4. It cannot be given by a person who has no understanding, as an idiot, nor by one who, though possessed of understanding, is not in law capable of making a contract, as a feme covert. See, Bouv. Inst. Index, h. t.

Most every state has a statute implying the consent of one who drives upon its highways to submit to some type of scientific test or tests measuring the alcoholic content of the driver’s blood. In addition to implying consent, these statutes usually provide that if the result of the test shows that the alcohol content exceeds a specified percentage, then a rebuttable presumption of intoxication arises.

Implied contract.

A true implied contract is an agreement of the parties arrived at from their acts and conduct viewed in the light of surrounding circumstances, and not from their words either spoken or written. Like an express contract, it grows out of the intention of the parties to the transaction and there must be a meeting of the minds. McKevitt et al v. Golden Age Breweries, Inc., 126 P.2d 1077 (1942); Essence of the contract;

Brinson v. Linda Rose Joint Venture,

53 F.3d 1044 (9th Cir. 1995) (the role of the court in a contract action “is to ascertain the parties’ intentions and give effect to their intentions.”); http://laws.findlaw.com/9th/3/53/1044.html

Barrios & Co. v. Pettigrew (G. V.) Co. (1924), 68 C.A. 139, 228 P. 676 (The intention of one party does not make contract.);

Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147 P.607 (Party cannot be bound by contract that he has not made or authorized.);

N.B. Frost Trucking. Cf. Adhesion contract; Hobson’s choice; De bene esse. Conditionally; provisionally; in anticipation of further need. A phrase applied to proceedings which are taken ex parte or provisionally, and are allowed to stand as well done for the present, but which may be subject to future exception or challenge, and must then stand or fall according to their intrinsic merit and regularity. Cf. Appearance; Foster.Doc.; Propria persona; Special Appearance To Contest The Merits In Attachment Suits, 95 U.Pa. L.R. 403; Admiralty Rule E(8) (Restricted appearance);http://www.law.cornell.edu/rules/frcp/RuleE.htm

Frost Trucking Co. v. Railroad Comm’n., 271 U.S. 583, 593-594 (1926) aff’d. U.S. v. Butler, 297 U.S. 1, 71-72 (1936); 44 Liquormart, Inc., Et al. v. Rhode Island Et al., 517 U.S. 484, 513 (1996) (It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not

[271 U.S. 583, 594] unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.); http://laws.findlaw.com/us/271/583.html

Cf. Public Licenses and Private Rights, 33 OLR 8, 10, n. 32 (Barnett, 1953) (State’s power to grant privilege on its own conditions is limited, so that it may not thereby require relinquishment of constitutional rights.);

N.B. Miller, Et al. v. Mitchell, No. 09-2144 (3rd Cir. 03/17/2010) accord U.S. v. Troescher, No. 95-55609 (9th Cir. 11/07/1996) (In sum, absent an injunction, the Does would have to choose either to assert their constitutional rights and face a prosecution of Nancy Doe based not on probable cause but as punishment for exercising their constitutional rights, or forgo those rights and avoid prosecution. On the facts before us, this Hobson’s Choice is unconstitutional. While “the Government retains broad discretion as to whom to prosecute,” “the decision to prosecute may not be deliberately based on arbitrary classification, including the exercise of protected statutory and constitutional rights.” Wayte v. United States, 470 U.S. 598, 607–08, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (internal quotation marks and citations omitted); see also United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (“For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.”). http://caselaw.findlaw.com/us-3rd-circuit/1593595.html … http://online.wsj.com/public/resources/documents/031710sextingopinion.pdf  *

Norfolk Southern Railway Co. v. Kirby, Pty Ltd. et al., 543 U.S. 14, 125 S.Ct.
385 (2004) (It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.’ “ American Dredging Co. v. Miller, 510 U.S. 443, 451 (1994) (quoting The Lottawanna, 21 Wall. 558, 575 (1875)); http://laws.findlaw.com/us/000/02-1028.html

Taylor v. Maddox, No. 02-55560 (9th Cir. 05/10/2004) citing Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347, 1351 (2004) (“A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief . . . by citing in conjunction with the claim the federal source of law on which he relies . . . .”); http://caselaw.lp.findlaw.com/data2/circs/9th/0255560p.pdf

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5 Responses to Implied Consent – N.B. Frost Trucking

  1. Jill in AL says:

    Thank you GrayRider. This saves me a lot of research before my supposed “trial” in May. Now I have to get busy memorizing…

  2. GrayRider says:

    Waiver. The relinquishment or refusal to accept of a right. In practice it is required of every one to take advantage of his rights at a proper time and, neglecting to do so, will be considered as a waiver. If, for example, a defendant who has been misnamed in the writ and declaration, pleads over, he cannot afterwards take advantage of the error by pleading in abatement, for his plea amounts to a waiver. In seeking for a remedy the party injured may, in some instances, waive a part of his right, and sue for another; for example, when the defendant has committed a trespass on the property of the plaintiff, by taking it away, and afterwards he sells it, the injured party may waive the trespass, and bring an action of assumpsit for the recovery of the money thus received by the defendant. 1 Chit. Pl. 90. In contracts, if, after knowledge of a supposed fraud, surprise or mistake, a party performs the agreement in part, he will be considered as having waived the objection. 1 Bro. Parl. Cas. 289. It is a rule of the civil law, consonant with reason, that any one may renounce or waive that which has been established in his favor: Regula est juris antique omnes licentiam habere his quæ pro se introducta sunt, renunciare. Code 2, 3, 29. As to what will amount to a waiver of a forfeiture, see 1 Conn. R. 79; 7 Conn. R. 45; 1 Jo. Cas. 125; 8 Pick. 292; 2 N. H. Rep. 120 163; 14 Wend. 419; 1 Ham. R. 21.

    Berghuis v. Thompkins, No. 08-1470 (USSC 06/01/2010) (Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously.” Davis v. United States, 512 U.S. 452, 459. If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent, id., at 461-462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that “avoid[s] difficulties of proof and … provide[s] guidance to officers” on how to proceed in the face of ambiguity. Davis, supra, at 458-459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither. Pp. 8-10. (b) Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police. A waiver must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421.); http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf

    We do not presume acquiescence in the loss of fundamental rights. Ohio Bell Telephone Co. v. Public Utility Comm., 301 U.S. 292, 307 (1937); aff’d. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Roell v. Withrow, 538 U.S. 580, 595 (2003); Cf. Abandonment; Abjuration; Desertion; Renunciation; Waiver;

    United States v. Gamba, No. 06-35021 (9th Cir. 04/11/2007) (Where the decision is one of trial tactics or legal strategy, defense counsel may waive a criminal defendant’s right to have an Article III judge preside over closing argument without the defendant’s personal, informed consent.); http://caselaw.lp.findlaw.com/data2/circs/9th/0635021p.pdf

    Clark v. Capital Credit & Collection Servs., Inc., No. 04-35563, 04-35795, 04-35842 (9th Cir. 08/24/2006) (Of course, “[n]ot all rights are waivable.” United States v. Perez, 116 F.3d 840, 845 n.7 (1997) (citing United States v. Olano, 507 U.S. 725, 733 (1993)). For instance, “waiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured,” New York v. Hill, 528 U.S. 110, 116 (2000), and “a right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy.” Id. (quoting Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 704 (1945)). http://caselaw.lp.findlaw.com/data2/circs/9th/0435563p.pdf

    Clark v. Capital Credit & Collection Servs., Inc., No. 04-35563, 04-35795, 04-35842 (9th Cir. 08/24/2006) (We further note that, as a general rule, “a party may waive a benefit of a provision of a statute . . . enacted . . . for his protection.” Globe Grain & Milling Co. v. De Tweede Northwestern & Pacific Hypotheekbank, 69 F.2d 418, 422 (9th Cir. 1934). With respect to rights secured by federal statute, “absent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties.” United States v. Mezzanatto, 513 U.S. 196, 201 (1995). There is no such indication in the FDCPA. Of course, “[n]ot all rights are waivable.” United States v. Perez, 116 F.3d 840, 845 n.7 (1997) (citing United States v. Olano, 507 U.S. 725, 733 (1993)). For instance, “waiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured,” New York v. Hill, 528 U.S. 110, 116 (2000), and “a right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy.” Id. (quoting Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 704 (1945)). … Under the generally accepted definition, a waiver is “the voluntary relinquishment . . . —express or implied—of a legal right or advantage.” Black’s Law Dictionary 1574 (7th ed. 2004); see also Olano, 507 U.S. at 733; Johnson v. Zerbst, 304 U.S. 458, 464 (1938). What constitutes a waiver depends, in the first instance, on the nature of the right at issue. See Hill, 528 U.S. at 114. Where waivers are permissible, they are often enforced only if the waiver was “knowing” or “intelligent,” which means the individual has “sufficient awareness of the relevant circumstances and likely consequences” of his decision, Brady v. United States, 397 U.S. 742, 748 (1970). See generally United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990) (“A knowing and voluntary waiver of a statutory right is enforceable.”) (emphasis added); United States v. Michlin, 34 F.3d 896, 898 (9th Cir. 1994) (“A knowing and voluntary waiver is a prerequisite to our enforcement of a plea agreement waiving appellate rights.”); Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (“First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary and intelligent.”). http://caselaw.lp.findlaw.com/data2/circs/9th/0435563p.pdf

    Nike v. Kasky, 539 U.S. 654 (06/29/2003) (3. The Arizona Supreme Court also remanded the case for the trial court to determine what further relief might be appropriate. See id., at 611. Thus, while leaving open the question of remedy on remand, the state-court judgment in ASARCO finally decided the federal issue. See id., at 612 (holding that the federal issues had been adjudicated by the state court and that the remaining issues would not give rise to any further federal question). http://supreme.justia.com/us/539/654/case.html

    Edwards v. Arizona, 451 U.S. 477 (1981) (The Arizona Supreme Court held that during the January 20 meeting he waived his right to remain silent and his right to counsel when he voluntarily gave his statement after again being informed of his rights.); http://laws.findlaw.com/us/451/477.html

    Waterway Terminals v. P.S. Lord, 242 Or 1, 26, 406 P2d 556 (1965) aff’d. Growers Refrigeration v. Pacific Electrical, 165 Or App 274, 996 P2d 521 (2000) (A “waiver” is the “intentional relinquishment of a known right.”); http://www.publications.ojd.state.or.us/A104720.htm

    It is not theft where the commencement of the detention arises through the owner of the thing {Furtum non est ubi initium habet detentionis per dominum rei; 3 Co. Inst. 107};

    Waiver of constitutional rights. Cf. Abandonment; Abjuration; Deferment; Desertion; Renunciation; Repudiation; Surrender; Waiver;

    United States v. Forrester, Et al., No. 0550410p (9th Cir. 07/06/2007) (Faretta v. California, 422 U.S. 806 (1975), held that a defendant has a constitutional right to represent himself but that “the accused must knowingly and intelligently forgo those relinquished benefits. . . . [H]e should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Id. at 835 (internal quotations omitted). This court has gleaned a three-factor test from Faretta, under which “[i]n order to deem a defendant’s Faretta waiver knowing and intelligent, the district court must insure that he understands 1) the nature of the charges against him, 2) the possible penalties, and 3) the ‘dangers and disadvantages of self-representation.’ ” Erskine, 355 F.3d at 1167 (quoting United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987)). On appeal, the burden of establishing the legality of the waiver is on the government, id., and “courts indulge in every reasonable presumption against waiver,” United States v. Arlt, 41 F.3d 516, 520-21 (9th Cir. 1994) (quoting Brewer v. Williams, 430 U.S. 387, 404 (1977)). See also United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994) (describing the government’s burden as “a heavy one”). Ordinarily, only the defendant’s colloquy with the court at the Faretta hearing is relevant to the waiver analysis. Id. However, a “limited exception” exists whereby “a district court’s failure to discuss each of the elements in open court will not necessitate automatic reversal when the record as a whole reveals a knowing and intelligent waiver.” Balough, 820 F.2d at 1488.); http://caselaw.lp.findlaw.com/data2/circs/9th/0550410p.pdf … Appeals Court Clarifies: Government Spyware Not Protected in Ruling (Wired Mag: By Kevin Poulsen, 07/25/2007) http://blog.wired.com/27bstroke6/2007/07/appeals-court-c.html

    United States v. Gamba, No. 06-35021 (9th Cir. 04/11/2007) (Where the decision is one of trial tactics or legal strategy, defense counsel may waive a criminal defendant’s right to have an Article III judge preside over closing argument without the defendant’s personal, informed consent.); http://caselaw.lp.findlaw.com/data2/circs/9th/0635021p.pdf

    State v. Domicz, (A-42-05) (N.J.Sup.Ct. 09/20/2006) (A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed.2d 854, 858 (1973); Carty, supra, 170 N.J. at 650. Indeed, consent searches are considered a “legitimate aspect of effective police activity.” Schneckloth, supra, 412 U.S. at 228, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863. The choices are not so stark for the person who, in the familiar surroundings of his home, can send the police away without fear of immediate repercussions. See Schneckloth, supra, 412 U.S. at 247, 93 S. Ct. at 2058, 36 L. Ed. 2d at 874 (suggesting that consent searches are not “inherently coercive” when they “occur on a person’s own familiar territory”); United States v. Carter, 378 F.3d 584, 589 (6th Cir. 2004) (stating that “a man’s home is his castle,” and that “police may be kept out or invited in as informally as any other guest”), cert. denied, 543 U.S. 1155, 125 S. Ct. 1298. 161 L. Ed.2d 121 (2005); cf. State v. Timmendequas, 161 N.J. 515, 615 (1999) (stating that, because questioning of defendant took place in his home, it “was not inherently intimidating”), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001); State v. P.Z., 152 N.J. 86, 103 (1997) (noting that, during interview of defendant in his home, he had “complete freedom to come and go as he pleased”). In limiting the reach of our holding in Carty, we recognized the distinct disadvantage of the motorist detained at the side of the road and the history of abuse of the consent search in the context of motor vehicle stops. Carty, supra, 170 N.J. at 641, 644, 646. Indeed, New Jersey is one of a small minority of jurisdictions in the country requiring the State to prove, as a precondition to the validity of a consent search, that a person have knowledge of his right to refuse to give consent. See State v. Brown, 156 S.W.3d 722, 724 (Ark. 2004) (holding that “a home dweller must be advised of his or her right to refuse consent in order to validate a consensual search under the Arkansas Constitution”); State v. Ferrier, 960 P.2d 927, 934 (Wash. 1998) (holding that police “must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search”). Detective Peacock did in this case what police officers routinely do throughout the State –- he advised defendant that he had a right to refuse to give consent to a search of his home. As articulated in our case law, to determine whether a person’s consent was voluntarily given or coerced, the proper analytical framework is whether a person has knowingly waived his right to refuse to consent to the search. See Johnson, supra, 68 N.J. at 353-54 (establishing standard of voluntariness of consent under Article I, Paragraph 7, as knowing and intelligent waiver, which includes knowledge of right to refuse consent); State v. King, 44 N.J. 346, 352-53 (1965) (setting forth various non-exhaustive factors supporting either voluntary or coerced nature of consent). Free choice remains an indispensable tenet of our law –- for example, the choice to submit to interrogation or to consent to a search. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed.2d 694, 707 (1966); Johnson, supra, 68 N.J. at 355 (Schreiber, J., concurring) (“Consent contemplates the exercise of a choice” and free choice is “effectively safeguarded if the occupant of the premises knows that the search may be refused.”); see also King, supra, 44 N.J. at 353 (noting that “many decisions have sustained a finding that consent was voluntarily given even though the consent was obtained under the authority of the badge or after the accused had been arrested”). The Constitution protects against unreasonable searches and seizures and against coerced waivers of constitutional rights. It does not disallow voluntary cooperation with the police.); http://lawlibrary.rutgers.edu/courts/supreme/a-42-05.doc.html

    Clark v. Capital Credit & Collection Servs., Inc., No. 04-35563, 04-35795, 04-35842 (9th Cir. 08/24/2006) (Of course, “[n]ot all rights are waivable.” United States v. Perez, 116 F.3d 840, 845 n.7 (1997) (citing United States v. Olano, 507 U.S. 725, 733 (1993)). For instance, “waiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured,” New York v. Hill, 528 U.S. 110, 116 (2000), and “a right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy.” Id. (quoting Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 704 (1945)). http://caselaw.lp.findlaw.com/data2/circs/9th/0435563p.pdf

    Clark v. Capital Credit & Collection Servs., Inc., No. 04-35563, 04-35795, 04-35842 (9th Cir. 08/24/2006) (We further note that, as a general rule, “a party may waive a benefit of a provision of a statute . . . enacted . . . for his protection.” Globe Grain & Milling Co. v. De Tweede Northwestern & Pacific Hypotheekbank, 69 F.2d 418, 422 (9th Cir. 1934). With respect to rights secured by federal statute, “absent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties.” United States v. Mezzanatto, 513 U.S. 196, 201 (1995). There is no such indication in the FDCPA. Of course, “[n]ot all rights are waivable.” United States v. Perez, 116 F.3d 840, 845 n.7 (1997) (citing United States v. Olano, 507 U.S. 725, 733 (1993)). For instance, “waiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured,” New York v. Hill, 528 U.S. 110, 116 (2000), and “a right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy.” Id. (quoting Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 704 (1945)). … Under the generally accepted definition, a waiver is “the voluntary relinquishment . . . —express or implied—of a legal right or advantage.” Black’s Law Dictionary 1574 (7th ed. 2004); see also Olano, 507 U.S. at 733; Johnson v. Zerbst, 304 U.S. 458, 464 (1938). What constitutes a waiver depends, in the first instance, on the nature of the right at issue. See Hill, 528 U.S. at 114. Where waivers are permissible, they are often enforced only if the waiver was “knowing” or “intelligent,” which means the individual has “sufficient awareness of the relevant circumstances and likely consequences” of his decision, Brady v. United States, 397 U.S. 742, 748 (1970). See generally United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990) (“A knowing and voluntary waiver of a statutory right is enforceable.”) (emphasis added); United States v. Michlin, 34 F.3d 896, 898 (9th Cir. 1994) (“A knowing and voluntary waiver is a prerequisite to our enforcement of a plea agreement waiving appellate rights.”); Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (“First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary and intelligent.”). http://caselaw.lp.findlaw.com/data2/circs/9th/0435563p.pdf

    Roell v. Withrow, 538 U.S. 580 (2003) (“A critical limitation on [the] expanded jurisdiction [of magistrate judges] is consent.” Id., at 870. Reading §636(c)(1) to require express consent not only is more consistent with the text of the statute, but also ensures that the parties knowingly and voluntarily waive their right to an Article III judge. A party’s express consent is a clear and unambiguous indication that the party had sufficient notice it was freely waiving its right. Accordingly, I would choose this interpretation over the majority’s view that implied consent suffices to give a magistrate judge dispositive authority over a case. Cf. Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393 (1937) (holding that the parties, by their request for directed verdicts, did not waive their right to trial by jury, and observing that “courts indulge every reasonable presumption against waiver”); Ohio Bell Telephone Co. v. Public Util. Comm’n. of Ohio, 301 U.S. 292, 307 (1937) (holding that a telephone company did not waive its right to have the value of its property determined upon evidence presented in open proceedings by not opposing consolidation of two proceedings, and noting that “[w]e do not presume acquiescence in the loss of fundamental rights”). http://laws.findlaw.com/us/000/02-69.html

    Miller, Et al. v. Mitchell, No. 09-2144 (3rd Cir. 03/17/2010) accord U.S. v. Troescher, No. 95-55609 (9th Cir. 11/07/1996) (In sum, absent an injunction, the Does would have to choose either to assert their constitutional rights and face a prosecution of Nancy Doe based not on probable cause but as punishment for exercising their constitutional rights, or forgo those rights and avoid prosecution. On the facts before us, this Hobson’s Choice is unconstitutional. While “the Government retains broad discretion as to whom to prosecute,” “the decision to prosecute may not be deliberately based on arbitrary classification, including the exercise of protected statutory and constitutional rights.” Wayte v. United States, 470 U.S. 598, 607–08, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (internal quotation marks and citations omitted); see also United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (“For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.”). http://caselaw.findlaw.com/us-3rd-circuit/1593595.html * … http://online.wsj.com/public/resources/documents/031710sextingopinion.pdf *

    Waterway Terminals v. P.S. Lord, 242 Or 1, 26, 406 P2d 556 (1965) aff’d. Growers Refrigeration v. Pacific Electrical, 165 Or App 274, 996 P2d 521 (2000) (A “waiver” is the “intentional relinquishment of a known right.”); http://www.publications.ojd.state.or.us/A104720.htm

    Edwards v. Arizona, 451 U.S. 477, 482-484 (1981) (A waiver of the right to counsel, once invoked, not only must be voluntary, but also must constitute a knowing and intelligent relinquishment of a known right or privilege.); http://laws.findlaw.com/us/451/477.htmlhttp://www.justia.us/us/451/477/case.html

    Bordenkircher v. Hayes, 434 U.S. 357, 363 (1977) (To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, at 738 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” Chaffin v. Stynchcombe, supra, at 32-33, n. 20. See United States v. Jackson, 390 U.S. 570.); http://laws.findlaw.com/us/434/357.html

    U.S. v. Mason, 412 U.S. 391, 399-400, 93 S.Ct. 2202, 37 L.Ed.2d 22 (1973) (And if the doctrine of stare decisis has any meaning at all, it requires that people in their everyday affairs be [412 U.S. 391, 400] able to rely on our decisions and not be needlessly penalized for such reliance.); http://laws.findlaw.com/us/412/391.html

    Sherar v. Cullen, 481 F.2d 946 (9th Cir. 1973) (The See and Reisman decisions, and the statutory procedures of Sec. 7402(b), reflect the obvious concern that there be no sanction or penalty imposed upon one because of his exercise of constitutional rights.); http://openjurist.org/481/f2d/945/sherar-v-m-cullen

    Brady v. U.S., 397 U.S. 742, 748, n. 6 (1969) (Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.); http://laws.findlaw.com/us/397/742.html

    Simmons v. U.S., 390 U.S. 377, 394, 88 S.Ct. 967 (1968) (We find it intolerable that one constitutional right should have to be surrendered in order to assert another); http://laws.findlaw.com/us/390/377.html

    Johnson v. Zerbst, 304 U.S. 458, 464 (1938) aff’d. Miranda v. State of Arizona, 384 U.S. 436, 475 (1966); Brady v. U.S., 397 U.S. 742, 748 Fn. 6 (1970) (It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights12 and that we ‘do not presume acquiescence in the loss of fundamental rights.’ 13 A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.); http://laws.findlaw.com/us/304/458.html

    Ohio Bell Telephone Co. v. Public Utility Comm., 301 U.S. 292, 307 (1937) aff’d. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Miranda v. State of Arizona, 384 U.S. 436, 475 (1966); Roell v. Withrow, 538 U.S. 580, 595 (2003) (We do not presume acquiescence in the loss of fundamental rights.); http://laws.findlaw.com/us/301/292.html

    Frost Trucking Co. v. Railroad Comm’n., 271 U.S. 583, 596-597 (1926) ([State] may not impose conditions which require the relinquishment of constitutional rights); http://laws.findlaw.com/us/271/583.html

    Bailey v. Alabama, 219 U.S. 219, 244, 31 S.Ct. 145 (1911) (What the state may not do directly it may not do indirectly.); http://laws.findlaw.com/us/219/219.html

    Dexter v. Houston, 20 F.2d 647 (knowledge is essential where rights are to be changed, and absent knowledge, rights do not change);

    Cf. Brookhart v. Janis, 384 U.S. 1 (1966); Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 240, 143 A.L.R. 435 (1942); Patton v. United States, 281 U.S. 276, 312, 263 (1930); This court has always set high standards of proof for the waiver of constitutional rights. Miranda v. State of Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed. 694 (1966); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938); Dimick v. Scheidt, 293 U.S. 474 (1935); Patton v. U.S., 281 U.S. 276, 312 (1930); Dexter v. Houston, 20 F.2d 647; Aff. Dickerson v. United States, USSC No. 99-5525 (06/26/2000); U.S. v. Orso, No 99-50328 (9th Cir. 12/08/2000); U.S. v. Akins, No 99-30241 (9th Cir. 03/27/2001); and that class of authority, reason, custom and usage ad infinitum;

    Accord Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (Unconstitutional conditions); Oppenheim, Unconstitutional Conditions and State Powers, 26 Mich. L. Rev. 176 (1928); Public Licenses and Private Rights: 33 Or. L. Rev. 8-10, Fn. 30 (Barnett, 1953);

    • Henry Shivley says:

      A simple mandamus for the removal of the case from the court without the jurisdictions and in violation of the procedural due process for the failure for the common law court guaranteed via the procedural due process, which by the way can’t exist, as the only courts for the common law are removed, would seem a lot simpler.

  3. Henry Shivley says:

    People, you don’t need anything but the Bill of Rights and the document creation procedure, as there is not one case being tried across this nation that is not in violation of the procedural due process, which is the supreme law of the united States. There is no argument or precedent that can remedy that defect.
    No disrespect to anyone, but it is a sin to complicate that which is simple. It is our absolute birthright to apply that Bill of Rights in every instance, right out the gate, and all violations are to stop when the right is invoked. If this is not the case then we are simply at war.

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