NOTICE: CHALLENGE TO LITIGATION TAX/FILING FEE AS UNCONSTITUTIONAL
Appellant, Arthur Jay Hirsch, without counsel, hereby gives NOTICE of his challenge to the unconstitutional demand for payment of a $550.00 litigation tax/filing fee (“tax/fee”), invoiced
by this Court upon its receipt of his notice of appeal. Appellant alleges that said required tax/fee
payment amounts to an unlawful “Justice-for-Sale/Pay-to-Play” scheme contrary to and in direct
violation of his constitutionally secured rights to freely appeal his case, to equal protection of the
law, and to due process. Grounds and support for appellant’s constitutional challenge to aforesaid
tax/fee are addressed in the following affidavit, to wit:
STATE OF TENNESSEE, LAWRENCE COUNTY
AFFIDAVIT OF IMMUNITY
I, Arthur Hirsch, (hereinafter, “Affiant”), states as follows:
- That Affiant is an adult man and competent to declare and affirm the facts set forth herein;
- That Affiant hereby solemnly affirms under penalty of perjury, before God as his witness,
that the declarations set forth below are true and correct to the best of his personal
knowledge, unless based upon best information and belief, which he will so state if
applicable, and will testify to their veracity if called upon as a witness;
- That Affiant declares he is a domiciliary of Lawrence County, Tennessee;
- That Affiant hereby declares, asserts, and contends, that he is immune from the collection
or payment of any type of assessed fee or specie of tax levied against his liberty to readily
access the courts of Tennessee in exercise of his inviolable right to apply to, petition,
address, or secure an audience before the same in pursuit of: remedy, redress of grievances,
instructing his duly elected or appointed officers and representatives within the judicial
branch of government, or in assembling together with others before the same in petition for
the common good, pursuant to Tennessee Constitution, Aricle I, § 23;
- That Affiant has learned from constitutional research, the right of petition and the right of
audience are inviolate rights secured by the First Amendment, and/or reserved under the
Ninth Amendment of the U.S. Constitution, and are made applicable to the several States
pursuant to the Fourteenth Amendment;
- That Affiant has researched and learned from the Tennessee Constitution, Article 1 “Declaration of Rights,”that JUSTICE IS TO BE ADMINISTERED WITHOUT SALE, DENIAL OR DELAY.
Tennessee Constitution, Article 1, §17 (in pertinent part) That all courts shall be open. . . and right and justice administered without sale, denial, or delay.
- That Affiant declares his belief from reading and understanding of the clear, unambiguous
languge of Art. 1, Sec. 17, makes the required $550.00 litigation tax/filing fee (“tax/fee”)
equivalent to an unconstitutional “JUSTICE FOR SALE/PAY-TO-PLAY” coersion
scheme. The tax/fee imposition causes unequal justice for those who cannot afford to pay
the tax/fee, i.e., there is no equal access to the appeals court; justice is only for those who can
afford to pay the tax/fee on short notice. Appellant believes he should not have to file an in
pauperis affidavit in an effort to avoid the financially prohibitive and burdensome tax/fee inorder to have an opportunity to exercise his right to appeal. Further, Appellant’s non-payment of the demanded tax/fee within seven (7) days from date of invoice received, threatens an unconstitutional DISMISSAL/DENIAL of his case in violation of his constitutionally protected rights to freely appeal, to equal protection, and due process.
- That Affiant declares from his legal research that the following relevant authorties cited
below support his allegation;
➤ Form: AF-001 rev. 1.0 Page 2 of 2.
Tenn. Const., Art. 1, §23 declares, “That the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address or remonstrance.”
➤ Tenn. Const., Art. XI §16 declares, “The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate.”
➤ T.C.A. § 16-3-403 Rules promulgated by The Tennessee Supreme Court shall not “abridge, enlarge, or modify any substantive right, and shall be consistent with the constitutions of the United States and Tennessee.”
➤ The U. S. Supreme Court has previously held that, “A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution.” “No state may convert a secured liberty into a privilege. . . ” Murdock v. Pennsylvania, 319 U.S. 105 (1943).
- Affiant believes the $550.00 tax/fee in issue is evidence that his right to freely appeal his case has been unlawfully converted into a regulable, taxable privilege. (It should be noted that lawyers pay a privilege tax and obtain a license to use the public courts for private gain, similar to motor freight carriers having to pay a privilege tax in order to use the public highways for profit transporting people or goods for hire. Where constitutionally secured rights are involved, there is NO PRIVILEGE TAX imposed.
➤ “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda v. Arizona, 384 U.S. 436, 491 (1966).
➤ Tenn. Const., Art. II §28.
Affiant’s personal exercise of his right in freely petitioning this Criminal Court of Appeals to hear his case (“without sale, denial and delay”) is NOT the type of commercial activity or privilege in view upon which a tax may be levied pursuant to delegated authorities. Section 28 of Article 2 of the Constitution definitely indicates two objects and two modes of taxation. The object of the first class (ad valorem tax) is property taxed equally and uniformly upon its value, and the object of the
second (privilege tax) is privileges classified and taxed according to the sound discretion of the Legislature. Privilege tax is defined as a” tax on the privilege of carrying on a business or occupation for which a license or franchise is required.” Gulf & Ship Island R. Co., v. Hewes, 183 U.S. 66. Black’s Law Dictionary, 6th Ed., p. 1198. Taxation of the privilege is upon the occupation or activity carried on amid the social, economic, and industrial environment, under protection of the state. Phillips v. Lewis, 3 Tenn. Cas. 230..
➤ “When the privilege ends, the power of regulation ceases.” Munn v. Illinois, 94 U.S. 113, 147 (1876).
➤“The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.” Marbury v. Madison, 5 U.S. 137.➤ “We must not be understood by what has been said as conceding that the question of a denial of the equal protection of the laws can never arise under the taxing statutes of a state. On the contrary, the power to tax is so far limited that it cannot be used to impair or destroy rights that are given or secured by the supreme law of the land.” Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (1902).
- That Affiant declares clearly established law and controlling decisions have been
disregarded by the Supreme Court with respect to the imposed litigation tax/filing fee rule,
thereby abrogating Affiant/appellant’s right to freely appeal his case (“without sale, denial
or delay”), and which coerces him to pay a privilege tax (upon threat of denial if not paid)
in order to have his case heard. State granted privileges are taxed. God given rights are free,
are NOT taxed, and are clearly excepted from the general high powers of government. (See
Art. XI, Sec. 16 above.).
- Affiant/appellant hereby declares he is IMMUNE from the unconstitutional $550.00
litigation tax/filing fee and asserts his constitutionally secured right to have his case reviewed
Affiant hereby declares upon penalty of perjury, and with God as his witness, that the foregoing
AFFIDAVIT OF IMMUNITY is true upon personal knowledge, best information and belief.
Date: July___, 2023
Arthur Jay Hirsch, Affiant
End of Affidavit of Immunity
THEREFORE, Appellant, Arthur Jay HIRSCH, hereby requests the following of this Court:
- That a stay of further proceedings in the matter of this filed case number M2023-00575-CCA-
R3-CD in the Criminal Court of Appeals until such time as the constitutionality of the aforesaid tax/fee has been decided by the Tennessee Supreme Court or the U.S. Supreme Court;
- That this Court certify this NOTICE: CHALLENGE TO LITIGATION TAX/FILING FEE
AS UNCONSTITUTIONAL to the Tennessee Supreme Court for consideration as may be required;
- That any ruling on this notice of challenge shall be in writing, signed by a judge, and stating the
finding of facts and conclusions of law upon which the Court relied on for its decision.