Subpart 2.1 - Challenging Subject Matter Jurisdiction
A. The Gold-Fringed Flag Issue
The members of antigovernment groups and common law courts frequently challenge the state courts' jurisdiction over the subject matter of the cases they are involved in by declaring that the gold fringe typically found on decorative flags transforms the court into a court of Admiralty jurisdiction. The bases underlying this belief are not entirely coherent, and adherents of different movements cite disparate, though related, reasons for this. A common theory is that in 1933, as the United States abandoned the gold standard, our country became "bankrupt." As a result, elected leaders have hidden this information from the public and worked to conceal it since. In 1938 there was allegedly a secret meeting of the nation's top attorneys, judges and United States Attorneys, in which they were told that the courts were operating in Admiralty jurisdiction - and they have been ever since.
Another variation on this theme is that ships traditionally fly the flag of their native country. Because of that, it is supposedly well known that whenever an individual is confronted with a proceeding before a particular flag, he or she is on notice that the laws of the country the flag represents are to govern that particular proceeding. In 1925, the United States Attorney General issued an Opinion in which he offered: "The placing of a fringe on the national flag, the dimensions of the flag and the arrangement of the stars in the union are matters of detail not controlled by statute, but are within the discretion of the President as Commander in Chief of the Army and Navy."[1] In 1959, President Eisenhower issued Executive Order No. 10834, in which he stated that, "A military flag is a flag that resembles the regular flag of the United States, except that it has a yellow fringe border on three sides." Consistent with the common conspiratorial angle from which the antigovernment groups often approach matters, those words have been interpreted to mean that whenever a court is displaying the gold-fringed flag that court has suspended "constitutional" law and is operating under military court martial authority - wherein individual rights are supposedly suspended.
With these beliefs, or some variation thereon, firmly in mind, members of antigovernment groups frequently refuse to acknowledge the jurisdiction of whatever court they happen to be in when this flag is present. Because they also believe that to object without caveat may subject them to the court's jurisdiction, they will file documents such as "notices of special appearance" and the like, in order to proffer an objection without submitting to the court's jurisdiction. Like many other tactics, this is one that can potentially use much of the court's valuable time and, if the court refuses to acknowledge the objection, to costly and time consuming appeals.
B. Typical Responses to the Flag Objection
Courts are generally left with three avenues when faced with this objection: 1) to note the objection and move on; 2) to become combative - even to the extreme of using the court's contempt power to sanction the participant; and 3) to understand that it may be faced with this problem repeatedly and take precautionary measures to alleviate it -namely, to replace their flag.
1. Noting the Objection - There is little controversy surrounding the option of noting the participant's objection and moving forward. In 1997, a United States Federal District Court spoke at length about this issue. There, a "freeman" brought a federal civil rights claim against a state court judge, claiming that the judge acted without jurisdiction because of the fringe on its flag. The federal court responded:
"The plaintiffs claims against the [defendants] must be dismissed because his factual predicate is incorrect as a matter of law... in flag manufacture, a fringe is not considered to be a part of the flag, and is without heraldic significance... even if the plaintiff could prove that [a yellow fringe] converted the state court's United States flag to a maritime flag of war, the Court cannot fathom how the display of a maritime war flag could limit the state court's jurisdiction."[2]
Pursuant to the reasoning of this case, it appears well settled that there is no actual claim relating to the fringe on a flag and a court's jurisdiction. Be advised, however, that simply because there is no cognizable claim, courts cannot expect that litigants will not pursue an appeal or a federal civil rights claim against the judge whose court utilizes the gold-fringed flag.
2. The Contempt Power - a court may, of course, use its traditional contempt power to bring litigants in line with the expected norms of courtroom behavior. As with option 1, above, be forewarned that the likely result of the use of that power will be publicity, appellate review and further lack of cooperation from litigants.
3. Acquiescence - Another, and becoming
more frequent, response is to acquiesce to the objection posed by the
participant. This typically happens in one of two ways. First, the court has
dealt with and is aware of the tactics of antigovernment groups, and takes
proactive measures by simply replacing its flags with less ornate United States
flags. This may be a permanent measure, or merely one that is taken before
these individuals appear in the courtroom. Second, and where the court is
unaware of this tactic but suddenly faced with the objection, the court simply
acquiesces and replaces the flag. A suggestion from Judge Bonnie Sudderth of
Texas: "flags are relatively inexpensive items. Replace the fringed flag
with a less fancy version and this argument disappears with it."[3]
C. Additional Authority
The following cases present additional discussion pertaining to the flag issue:
Federal
Courts
Vella v. McCammon, 671 F.Supp. 1128, 1129 (S.D. Tex. 1987)(holding that the flag argument has no arguable basis in law or fact).
Schneider v. Schlaefer, 975 F. Supp. 1160,1162 (E. D. Wis. 1997)(calling the difference between flags "purely cosmetic").
Sadlier v. Payne, 974 F. Supp. 1411 (D. Utah 1997)(noting that any
arguments made under the "flag code," 36 U.S.C. § 176(g) fail because the code does not proscribe conduct and is merely advisory in nature).
State
Courts
Commonwealth v. Appel, 652 A.2d 341, 343 (Pa.Super. 1994)(calling the flag argument a "preposterous claim").
State v. Whelan, 961 P.2d 1051 (Ariz.App.Div.2 1997)(not a holding on point, but exemplary of the tactics members use in court). City ofBelton v. Horton, 947 S.W.2d 104 (Mo.App.W.D. 1997) (calling argument "mere abstract statements").