A writ of quo warranto is not a petition, but a notice of demand, issued by a demandant, to a respondant claiming some delegated power, and filed with a court of competent jurisdiction, to hold a hearing within 3 to 20 days, depending on the distance of the respondant to the court, to present proof of his authority to execute his claimed powers. If the court finds the proof insufficient, or if the court fails to hold the hearing, the respondant must cease to exercise the power. If the power is to hold an office, he must vacate the office.
The writ is unlike a petition or motion to show cause, because the burden of proof is on the respondant, not on the demandant.
By itself, the writ does not seek the support of the court to order the respondant to cease the exercise or vacate the office. That would be an accompanying writ of prohibito or a writ of mandamus. All such writs contemplate enforcement by the people as militia, although that could include the sheriff or constable as commander of militia. The right involved is that of the respondant to present his evidence.
These writs are called prerogative writs because they are supposed to be docketed ahead of all other cases except other prerogative writs. The demandant represents the sovereign, the people, and anyone may appear in that capacity, even without a personal stake in the decision.
A writ of habeas corpus may be regarded as a subset of quo warranto, for cases where the claimed power is to hold a prisoner, but with the addition of a requirement to produce the prisoner in court, not just appear to present evidence of authority.
The prerogative writ of quo warranto has been suppressed at the federal level in the United States, and deprecated at the state level, but remains a right under the Ninth Amendment, which was understood and presumed by the Founders, and which affords the only judicial remedy for violations of the Constitution by public officials and agents. Here are a few writings on the subject. Revival of the writs must be combined with reviving standing for private prosecution of public rights, subverted by the “cases and controversies” doctrine and the decision in Frothingham v. Mellon, 262 U.S. 447 (1923), which is discussed in an article by Steve Winter, The Metaphor of Standing and the Problem of Self-Governance.
Although some of these writings are copyrighted, we are assured that all the chapters of all the ones still copyrighted have been attached to pleadings in various cases, and thus made part of the public record, thereby putting them into the public domain.
A critical key to achieving federal constitutional compliance is to resurrect quo warranto and other common law writs. This involves reasserting and strengthening the original All-Writs Act and repealing or declaring unconstitutional legislation, such as the Tax Anti-Injunction Act, and those Rules of Judicial Procedure, that have restricted the jurisdiction of federal courts to accept these writs and grant a fair hearing (“oyer”) and a decision on the merits (“terminer”) on such demands.
For further reading:
- The Practice of Extraordinary Remedies, Chester James Antieau, 1987, Chapter on Quo Warranto.
- A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto and Prohibition, James L. High, 1896, Section on Quo Warranto.
- A Treatise on the Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari, and Quo Warranto, Horace G. Wood, 1896, Section on Quo Warranto.
- “Jurisdiction can be challenged at any time.” Basso v. Utah Power & Light Co., 495 F 2nd 906 at 910.
- “It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefore.” U.S. v. Benson, 495 F.2d, at 481 (5th Cir., 1974).
- “The law provides that once State and Federal Jurisdiction has been challenged, it must be proven.” Main v. Thiboutot, 100 S. Ct. 2502 (1980).
- “Where there is absence of proof of jurisdiction, all administrative and judicial proceedings are a nullity, and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack.” Thompson v Tolmie, 2 Pet. 157, 7 L. Ed. 381; and Griffith v. Frazier, 8 Cr. 9, 3 L. Ed. 471.
- “the burden of proving jurisdiction rests upon the party asserting it.” Bindell v. City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991).