PART II
Tactics in the Courtroom
This section contains tactics commonly used in the courtroom, during all types of proceedings. While most responses to any or all of these tactics fall squarely within judicial discretion (i.e., using the contempt power, facilitating agreement with the party), some responses to the tactics herein and in the following sections clearly implicate civil rights and must be taken with caution. These responses include any that deal with the party's speech, their rights to trial counsel and fair hearings, and the like. We should point out that courts generally have three avenues open to them: continuing the proceeding over objection, use of the contempt power to threaten or punish those who are disruptive, and accommodation or acquiescence to a party's request. As such, the universe of potential responses is not large. However, and in response to each individual tactic, creative and efficient solutions are urged.
Those responses which the court feels are soundly within its discretion might nonetheless have serious ramifications upon the court's ability to fulfill its mission -especially for those courts charged with implementing the Trial Court Performance Standards (TCPS) or some similar system for improving the court's performance. To that end, the court should become familiar with the TCPS, the text included herein, and consider alternatives that have a lesser impact on the court's ability to properly carry out its mission.
The sections on each tactic and response differ in that some are followed by a section titled "Additional Authority." This section exists where there is a rich body of law on point or closely related. In other sections, where the particular point is not as developed, additional authority is provided by way of annotation and gives reference to a starting point from which to search.

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." 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."
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."
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").

Subpart 2.2 - Challenging Personal Jurisdiction
A.    The "Sovereign" vs. the "Corporate" Citizen
Though the precise contours of their philosophy differ among the various groups, almost all antigovernment movements adhere to a theory of a "sovereign" citizen. Essentially, they believe that our nation is made up of two types of people: those who are sovereign citizens by virtue of Article IV of the Constitution, and those who are "corporate" or "14th Amendment" citizens by virtue of the ratification of the 14th Amendment. The arguments put forth by these groups are generally incoherent, legally, and vary greatly among different groups and different speakers within those groups. They all rely on snippets of 19th Century court opinions taken out of context, definitions from obsolete legal dictionaries and treatises, and misplaced interpretations of original intent. One of the more cogent - in the sense that it is readily followed - arguments is that there were no United States citizens prior to the ratification of the 14th Amendment. All Americans were merely citizens of their own state and owed no allegiance to the federal government. As a result of that amendment, however, Congress created a new type of citizen - one who now enjoyed privileges conferred by the federal government and in turn answered to that government.
One of the ramifications of this belief is the dependent belief that, unless one specifically renounces his federal citizenship, he is not the type of citizen originally contemplated by the Constitution. And, in their view, the Constitution requires all federal office holders to be the original or sovereign type of citizen, a state citizen rather than a United States citizen. As a result, all federal officers are holding office illegally and their laws and rules are thus constitutionally suspect. If the complaint, then, is that the federal government is suspect and thus so is its hold over these believers, it is unclear exactly why the state courts are correspondingly without authority. The explanations for that diverge widely. Essentially, members of these movements believe that they are able to renounce their federal citizenship by "quieting title" and by repudiating any possible "contractual" link to the government - such things as licenses, paying taxes, etc. They appear to just bootstrap their claims against the states onto the federal argument, and when they quiet title and become sovereign, all government's jurisdiction over them dissolves - except for the common law court to whose authority they have acquiesced.
Followers of these beliefs will typically attempt two types of argument in the state courts. Both go to the court's lack of jurisdiction, but for different reasons. The first is that they are sovereign and thus not answerable to state courts. They often support this contention by attempting to avail themselves of the "non resident alien" status described in Title 8 of the United States Code. This argument will be made in conjunction with some variation of the discussion above. The second tactic will be to proclaim that they simply are not a "person" for purposes of whatever statute they are being charged or sued under - almost always a losing argument that is nonetheless very popular with tax protest groups. 
B.    Typical Responses to the Personal Jurisdiction Issue
Courts' responses to both of the usual arguments have been swift and decisive. These arguments have repeatedly lost at the appellate level. At the trial level, the court may respond in one of several ways, much like the flag issue in the preceding section.
1.     Note the Objection and Move On - This appears to be the approach that most courts follow. As with any confrontation with members of these movements, arguments are interminable. Suffice to say that our system and its rules have established that: a) these people are not "sovereign" in any special sense, and b) they are certainly "persons" within the meaning of whatever statute is at issue - especially provisions of the United States Tax Code. Most courts that have dealt frequently with these movements have heard these arguments before and merely note an objection and move on over that objection. Note, however, that courts may wish to determine as a matter of policy how to handle these objections in light of the fact that an overruled objection will most likely lead to an appeal - frivolous or not. Certainly, courts do not wish to encourage frivolous appeals, and it is likely that the penal apparatus for filing such appeals can and does discourage them on this ground.
2.     Use of the Contempt Power - It is not entirely clear whether courts are using the contempt power in response to these personal jurisdiction arguments. It is quite evident that contempt is frequently used in accordance with the tactics these groups present, for they are often disagreeable, disruptive and disorderly. When stuck on this point in court, the court may feel compelled to use contempt to bring the party in line with acceptable behavior and decorum. However, a few caveats. First, it is not entirely clear that the court can censure an individual merely for uttering the objection based upon their view of the court's jurisdiction. The remedy for that failing is simply that they lose the argument as a matter of law. To censure them for the content of their speech, without more, is provocative and likely to lead to further argument and even retaliatory civil rights suits. There are a few ways in which the contempt power can be used in response to this tactic, however. First, where the argument over jurisdiction involves the party becoming disruptive or disorderly, as does happen, it is clear that contempt after warning is an acceptable response. Second, where the party lodges an objection that is noted by the court and asked to move on, but continues to argue the point, contempt is likely an acceptable response. In this instance, the censure is a result of the party's unacceptable behavior, rather than the content of his or her speech.
3.	Engaging the Party in Argument - Judge Sudderth tells of a Texas judge who apparently bought the party's sovereignty argument and granted sovereign status to several litigants. The judge was rebuked by a conduct commission and subsequently resigned. That is perhaps the extreme example of the danger of engaging in this argument with the litigants who come into your courtroom. Some judges, however, apparently cannot resist the urge to either "put these people in their place" or to emerge victorious in debate. Be forewarned that engaging them on these dogmatic issues may lead to several negative consequences. First, there exists the possibility that engagement will lead to the appearance of personal animus or prejudice, particularly any engagement beyond noting an objection and moving forward. Second, engaging in rhetorical debate with members of these groups amounts to granting to them the affirmation they seek and affirming that their points merit debate in a court of law. Third, engagement takes time and resources, and to spend these on debate plays right into one of the purposes behind the tactic to begin with. 
C.    Additional Authority
The following cases present additional discussion pertaining to "sovereignty":
Federal Courts
•	Young v. Internal Revenue Service, 596 F.Supp. 141 (N.D.Ind. 1984) (tax protester - district court calls sovereignty claim "preposterous").
•	United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986) (tax protester case - calling argument "frivolous"),
•	United States v. Sloan, 939 F.2d 499, 500-501 (7th Cir. 1991) (tax protester case - noting that "strange" argument had repeatedly been rejected in the courts).
•	United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993) (tax protester case - rejecting contention that defendants are "Free Citizens of the Republic of Minnesota" and thus not subject to federal income taxation).
•	Valldejuli v. Social Security Administration, 75 A.F.T.R2d 95-607
•	(N.D.Fla. 1994)(social security number protester - district court finds sovereign argument "meritless").
State Courts
•	Uphoff v. Wisconsin Dept. of Revenue, 411 N.W.2d 428 (Wis. App.1987) (noting that appellant's "sovereign status" provides her no immunity from tax laws). This is an unpublished opinion. The fact that the court uses the term "appellant's sovereign status" is dangerous, for it is just the type of language these groups grasp and spin in order to legitimize their beliefs. The statement might have been better phrased "appellant's, claim of sovereign status.
•	State v. French, 883 P.2d 644, 653 (Haw. App. 1994) (using Black's Law Dictionary to define "person" as "a human being," and denying petitioner's challenge to traffic law).

Subpart 2.3 - Demanding Use of "The Common Law"
A.    Demanding a Strict Interpretation of "Common Law"
Central to much, but not all, antigovernment doctrine is the belief that the "common law" is all that rightfully governs sovereign individuals. That much is quite clear. What is not so easy to discern is precisely what "common law" means to members of these groups. Typically, arguments contain an imprecise mixture of principles embodied in the Magna Carta, the English common law (as reported in Blackstone's Commentaries), the Declaration of Independence, the United States Constitution and the Bill of Rights. One of the tactics, or typical demands, of the antigovernment groups is to require that the court only apply this "common law." Where the court fails to do so, the members often effectively terminate the proceeding - becoming disruptive, entirely uncooperative, and usually either filibustering or refusing to speak at all.
As with other areas of antigovernment or sovereign citizen doctrine, the specific arguments vary among the particular groups and among the speakers within those groups. A common theory is that the American Common Law is the "unwritten set of laws that get their binding force from age-old usage and acceptance." It is not clear that any particular groups share a common vision of what the "common law" is and exactly how it should be applied, for there does not seem to be a working hierarchy among documents or a general theory for reconciling apparent contradictions among the documents the movement relies on. It does appear clear that the notion of "common law" is as much about a belief in the inalienable sovereignty of the individual and a certain mindset as it is about a given set of usable rules by which to govern a society. In fact, one commentator has described the "common law" as "more than a system of rules to be observed or a set of formal institutions that demand recognition; it is a world in which people live."
Given this understanding of the "common law," it is easy to imagine the importance adherents to these groups attach to it, and thus makes clear why they make this demand when in the state courts. Essentially, this demand is not so much a tactic as it is a way of doing business. Typically, the member will be in state court for some purpose. If it is a civil matter, he or she cannot be liable, because the court is corrupt and refuses to recognize the binding law of the Magna Carta, for example (though members have appeared in court as plaintiffs and had no problem using the state's legal system to his or her own ends). If this is a criminal matter, the member will again demand use of the common law, citing – and often shouting – pieces of wisdom taken out of context from one of the great historical documents. Herein lies the "tactic": when the court refuses to recognize the member's objection or argument - as the court almost always will - the member will further object, completely disrupt the proceeding, will file an appeal based on the court's failure to adhere to the "proper law," and will sometimes bring a separate, outside suit against the judge for violating his or her civil rights.
In addition to the "common law" demand, members will often incorporate references to the Uniform Commercial code. Adherents rely on a belief that, after the case of Erie Railroad Co. v. Tompkins our courts abandoned the use of what we think of as the common law - that judge-made law that plays an integral role, along with the statutory and administrative law that makes up our system. Rather than the accepted reading of Erie, that is, that there is no federal common law (but that common law in the states is left intact and federal courts apply state substantive law and federal procedural law), these groups believe that the case abolished the use of all common law. To them, this both leaves a gap in our system of laws and is evidence that the Supreme Court declared that "commercial" law is now supreme. For this, they have adopted liberal readings of the Uniform Commercial Code, and demand that tortured readings of its provisions be used as statutory law in the proceedings of which they are a part.

B.   Typical Responses to the Common Law Demand
1.    Acquiescence - it has actually been suggested by some commentors that courts just acquiesce and agree to apply the laws as demanded by members of the movements. This is a dangerous, if not absurd, proposition. It may be that such commentors are actually suggesting that the courts sort of "play along" with these groups and their demands. Regardless of the way in which acquiescence is suggested, it is clear that no legitimate tribunal can either apply the "common law" as understood by these groups or "play along" with their demands. This is simply not an option.
2.     Continue over objection - this is the likely response to the "common law" argument. It is, in fact, the only route a court can legitimately take - if it wishes to retain its credibility and legitimacy. Like all responses, this is likely to trigger two things: resistance in the litigant demanding use of the "common law," and an appeal later on. While courts will have to deal with the resistance of the litigants, using traditional devices such as contempt, removal and the like, courts should not fear the results of an appeal - "common law courts" and their attendant jurisprudence have been long-held to be legally non-existent.

Subpart 2.4 - Significance of "The Bar"
A.    Refusing to Enter the Bar
There is a general theory among these groups that the term "esquire" following an attorney's name is a "title of nobility," in violation of the United States Constitution. In Article I, Sections 9 and 10, the Constitution states that no title of nobility shall be granted by the United States and, furthermore, that no state shall grant titles of nobility. Because of this, several things occur. First, the states lose legitimacy in the eyes of these groups because they confer licenses upon attorneys — thus magically turning them into "esquires" and illegally granting titles of nobility. Second, and most important for purposes of this text, courts which have a bar - the area in front of the gallery - have a space that is reserved for attorneys only (supposedly). Therefore, the thinking goes, a member of these groups cannot "enter the bar" lest they either become an "esquire" or acknowledge the validity of the "title" - which consequence is more feared is not quite clear.
A second, and related, reason is often used to support the "titles of nobility" theory. In 1810, Congress proposed what would have been the 13th Amendment to the U.S. Constitution. This amendment would have forbade any United States citizen from receiving a title of nobility and from holding public office if he or she did so. The proposed amendment was never ratified by the states, however. Twelve states did accept the proposed amendment - but thirteen of the then seventeen states were required for it to be adopted. The problem that arises is that, apparently, there were communications problems between the state and federal governments in 1810 and, as a result, the text of the "13th Amendment" made an appearance in a particular Virginia law book. Virginia was one of the states that did not accept the proposed amendment. A member of one of these groups made this "discovery" some time ago, and has subsequently argued (and taught to the masses) that this amendment was actually ratified. Because of this, all attorneys are violating the constitution - especially those who hold public office. This is just another way to validate the belief that attorneys — as we know them today - are, as a class, just bad, illegal and corrupt people. The members of these groups want nothing to do with that, and therefore refuse to "enter the bar" and choose not to "take the stand" to testify.
B.    Typical Responses to the Bar Argument
1.     Acquiescence - the result of this argument is that adherents will refuse to take the stand to testify. How to deal with this is a matter of judicial discretion, the answer to, which is guided by the court's values - i.e., whether the resulting fight is worth accommodating the litigant's demand. It is possible that a court could acquiesce and allow the litigant to be sworn outside of the bar and testify from his or her seat, for example. This is likely a matter of court procedure that can be changed to fit a given circumstance. While acquiescence relieves the initial burden of having to deal with the litigant's outburst, resistance, etc., it does hamper the appearance that the court treats litigants equally and that the court is committed to a consistent process. The authors hesitate to use a "slippery slope" argument, but must point out that, if courts are to begin         Mk. accommodating members of these groups in every tedious demand such as this, where does such accommodation stop? Further, what does the court do when members of another group demand the same concession? It is suggested that courts take the ramifications of a decision to accommodate seriously when deliberating over how to approach this problem. Finally, consider the circumstances and the end result of a person's refusal to enter the bar. Where that person is a witness is one thing - and clearly a contemptible offense. Where the person is a party, however, is another. When that person essentially refuses to testify, they are harming their own cause and will likely be seen to have waived any objection.
2.    Refuse to Accommodate/Contempt - It is clear that it is within the court's authority to use the contempt power when a litigant refuses to obey the court's lawful command. A few things bear noting, however. First, it is possible that the use of the contempt power against a person who refuses to enter the bar will be construed as a violation of the litigant's First Amendment right against the abridgment of his or her free speech. Though likely a claim without merit, it could give rise to a federal civil rights action against the judge. Such a case is a non-winner, from the plaintiff's point of view, but does result in the successful harassment of the judge and forces the judge and likely the state to defend a lawsuit.
3.     Creative Resolution - It appears that the chief concern for members of these groups is something that can often be alleviated through semantics. That is, the problem may not be that they enter the bar, but that they will be thought of as accepting a title of nobility and will be discredited before their peers for acquiescing and lending credence to a system they do not believe in. One way to alleviate this concern might be for the court to question the litigant as to why they do not wish to enter the bar, and then to "agree" to decree that, for the purposes of testifying, the litigant is not accepting a title of nobility. It is, to this author's point of view, a simple way of alleviating much of the problems attendant with dealing with these groups in your courts. It is not unlike being willing to remove the offending flag or otherwise accommodating these folks in an efficient and legally irrelevant way. It goes a long way toward gaining some measure of cooperation. 
C.    Additional Authority
1.     The First Amendment Problem - Trial judges have enormous power to control the conduct of affairs in their courtroom. Any challenge to a judge's use of the contempt power will likely be based upon the premise that a judge's use of that power comes in violation of the First Amendment. Learned commentators suggest that this possible problem be viewed in the following manner: First, if viewed as a restriction or other harm based on the content of the individual's speech, the individual is likely to lose because of the necessity of content-based regulations in the courtroom. Second, the courtroom is considered a "non-forum" in which reasonable regulations designed to "permit the orderly conduct of business of the court are both inevitable and permissible." Justice Stevens alluded to this problem and its solution in his concurrence in Consolidated Edison v. Public Service Commission, 447 U.S. 530, 545 (1980). There, he discussed the Supreme Court rules, which dictate the order in which parties may present their argument. He justified those content-based restrictions on just these grounds - that the court was a non-forum and that only certain types of expression relevant to the conduct of the judicial process are permitted. Inasmuch as a person might argue that their refusal to enter the bar is an expressive act, there is simply no room for that act in the efficient conduct of the judicial process.
2.     Titles of Nobility - several courts have passed on the validity of the claim that "esquire" and other terms are titles of nobility:
•	Woodson v. Davis, 887 F.2d 1082 (4th Cir. 1989) ("Officer of the Court" is not a title of nobility).
•	Hilgeford v. People's Bank, 113 F.R.D. 161 (N.D.Ind. 1986) (being a "lawyer" is not having a title of nobility).
•	Frederick v. dark, 587 F.Supp. 789 (W.D.Wis. 1984) (being a "lawyer" is not having a title of nobility).