Pro Se? Nothing to it!
By
John Tassone
What is a Pro Se Complaint? This is, quite simply, a lawsuit that
a person files without a lawyer. The ADA Pro Se must be filed in Federal
District Court., because the ADA is a Federal law. To find out which US District
Court you will be filing your complaint in, look in the phone book blue (or
green) pages, under United States Government Offices, "U.S. Courts".
Why file a Pro Se complaint? As the chair of an advocacy group
called the Disability Action Crew (DAC), I have lots of information to help
others advocate for access. With every question I get asked about advocacy, it
seems I often end up with more questions that go unanswered. It's like a coach
trying to beat a team that makes all the rules as the game goes along. He's out
there, he's trying to win, but every time he goes for the goal there's a
different set of rules. Advocacy's like that‹we don't know the rule of winning
access until we break them. And we look to authorities for the answers: the
DOJ, the EEOC, the HRC, the DOT.
How about us? We are the real authority, because we live with the
discrimination day in and day out. The Pro Se is our tool. Many businesses and
other public accommodations are not making their places accessible. Their
attorneys told them to ignore the ADA until someone makes an issue out of the
lack of access.
I've spent a lot of time sending accessibility complaints to the
DOJ for the "mediation process", which is supposed to be a faster way
to get better compliance. No response. I waited and got no response. I'm still
waiting for, at the very least, a letter confirming that they received the
things, let alone tell me what action, if any, they would be taking. Nothing.
How does it work? I attended a meeting with a group of advocates
from across Pennsylvania, and Steve Gold, the attorney who designed this Pro
Se, told us about filing our own lawsuits. Once I learned how to use it, I was
ready for action, I couldn't wait to do my first case. My success rate since I
began to use the Pro Se form has been 100%: all public accommodations served
with papers under the Pro Se method have made their places accessible.
The form needs to be filled out, and copies made. The number of
copies will depend upon your Federal District Court, so call and talk to them
about this. Depending on your income, you may be able to file your complaint
free of charge, so ask about this as well. Here's one success story:
A fellow advocate member of DAC, our advocacy group, filed her Pro
Se in Federal District Court, after waiting and waiting for DOJ to respond. She
lives on a low fixed income, and was able to waive the filing fee. Within a
week, she received her notification of receipt that her case is now pending in
federal court. At the same time she received notification that the inaccessible
business was being served the complaint by a federal marshal. Shortly after
that, she received a letter from the attorney for the inaccessible business
stating that they wanted to settle out of court. Of course!! We settled for full
compliance with the ADA.
I highly recommend using the Pro Se. We use it only after we've
attempted to deal with the business either through a letter, phone call, or
face-to-face meeting, discussing our access issues, and the business still
won't budge.
I still have a pile of 14 complaints sent to DOJ last year. I've
heard absolutely nothing from DOJ. That's why we've taken advantage of the Pro
Se, and we're finding it works.
When a federal marshal serves an inaccessible business with a
summons to federal court, that inaccessible businesses starts to take you
seriously!!
Pro Se Instructions
Don't
let the Pro Se form scare you. It's easy! All you have to do is just put it in
the computer and fill in the bold parts that are in parentheses. If you do not
have a computer, then use the "blank" pro se. We have an example copy
included for your convenience. Keep the example copy with you at your side as a
guideline. Once you have the disk copy in your computer and the example copy in
front of you, just follow these suggestions and you're on your way:
1. Fill in the [brackets] with your information. Remember, you are
the plaintiff, and the business is the defendant.
2. Each Paragraph is numbered on the left hand side. When you get
to paragraph 15, you'll see that it reads, "a failure to remove
architectural barriers." This will be different if the barriers are
against people who are deaf or hard of hearing. For example, the barrier may be
a phone bank without a TTY.
3. Paragraph 16 may also be different, depending on what the
barrier is. It's a good idea to attach photos of the barrier, as well as any
letters of correspondence.
4. If you or your group made any effort to inform business owners
in your area about the ADA, you might want to make a Paragraph 18 that will read
like this: "On April 22, 1993, the Louisville CIL conducted a free seminar
on the ADA, and sent out fliers to all downtown businesses, to educate them
about the ADA. The business in question still refused to become accessible. If
this is not relevant, just ignore it, and number paragraphs accordingly.
5. If you or your group did anything to inform that particular
business owner of his violation, then you might want to make that paragraph 19.
It might read like this, "During the summer of 1997, the Louisville CIL
visited the business in question, and spoke to the owner. The owner could
easily make his business accessible but has chosen not to comply with the
Americans with Disabilities Act."
6. If you have a paragraph 18 and 19, then you might want to add a
paragraph 20 that might read something like this, "Other commercial
facilities similar to the defendant's have made similar modifications, like
what we ask here. Defendant could easily make his business accessible but has
chosen not to comply with the Americans with Disabilities Act." You might
also want to add a 20a that reads, "to assist businesses with complying
with the ADA, Congress has enacted a tax credit for small businesses, and a tax
deduction available to all businesses."
7. Your next paragraph must read like this, "plaintiffs want
to (eat, do business, use the phone, buy, etc.) in the defendant's (restaurant,
store, etc.)" This is very important; it's the whole point of your
lawsuit.
8. Don't forget to fill out the Pro Se Motion to Commence an Action
Without Payment. Each court has a different standard of who can afford to pay,
and who can't. People on SSI typically do not have to pay any fees. People who
work may be asked to pay as much as $150. It's important to keep this in mind
when your group is deciding who will be the plaintiff. The plaintiff should
outline exactly why he thinks he should not have to pay fees. Look at the
enclosed copy for an example of a person's form who did not have to pay fees.
You are now ready to take your completed form down to the federal
district court that represents your area.
Filing your Pro Se lawsuit
1.
If you don't know where your federal court is, look under "U.S. Government
Offices ‹ U.S. Courts" in the blue or green pages of your phone book. When
you find out which district court is yours, add it at the top of your pro se
where it reads, "in the United States District Court for the [ ] district
of [your state]." Don't worry yet about the Civil Action No. The clerk
will give that to you at your district court office.
2. Most district courts require you to have an original copy, a
copy for each defendant, and an extra. Ask your clerk if they require more
copies, and don't forget to keep a copy for yourself. 3. When you go to the
district court's office, follow the clerk's instruction. They tend to be very
helpful, and will usually lead you through the rest of the process. The clerk
will give you a civil cover sheet to fill out while you are there. That cover
sheet will be attached to your Pro Se. The clerk will help you, if you need
assistance.
4. If you make mistakes, don't panic. The clerk will tell you how
to correct any mistakes, and justice will still be served.
Now, you're done with the Pro Se.
Next, the summons comes back to you in the mail, as well as instructions
for how to deliver the summons.
Make sure you follow those instructions! At that point, you will
be given so many days to serve the defendant with the court summons. In some
districts, the plaintiff has the choice of either delivering the summons
himself, a friend deliver it, or having a federal Marshal deliver it. It is
most effective to have either a federal Marshal deliver the summons, or a
really big guy in a suit. Whoever delivers the summons must make a note of who
the summons is delivered to, what the date is, and what time it was delivered.
Record this information on the appropriate form that is sent to you with the
summons, and take it back to the district court.
Congratulations! You have just filed your first Pro Se complaint.
Feel free to share your new knowledge with as many people as you can, including
any materials in this packet. Nothing is copyrighted, and duplication is
encouraged. If you need any further assistance, please call the Pa. Coalition
of Citizens with Disabilities at (717) 238-0172 voice or (717) 238-3433 TTY.
These instructions written and tested in the field by Linda
Riegel.
Pro Se Form
Copy or download this
fill-in-the-bracket form.
Wording inside brackets is
instructions for you. Most of the time
it is to be replaced by your own
information.
----------------------------------------------
IN
THE UNITED STATES DISTRICT COURT
FOR
THE [EASTERN, WESTERN OR WHATEVER] DISTRICT OF [YOUR STATE]
COMPLAINT
COMES NOW the plaintiff(s),
[Your Name(s)], appearing pro se, and for a complaint against the
defendant[s] above named, states, alleges, and avers as follows:
JURISDICTION
1. This Court has subject
matter jurisdiction under 28 U.S.C. sections 1331 and 1343.
2. This action is commenced
pursuant to 2201 and 2202 and 42 U.S.C., section 1983.
GENERAL
ALLEGATIONS
3. The plaintiffs, [Your
Name(s)] are citizens of the State of [Your State], United States of America.
4. Defendants, [name] , own and
at all times pertinent to the complaint have owned a commercial business
[insert e.g., movie house, shopping market, etc.] at [ street, city and state
address].
5. Plaintiffs are individuals
with disabilities that cause a mobility impairment. [Your Name(s)] use(s) a
motorized wheelchair [insert other, if relevant] for mobility. All Plaintiffs
want to [eat, do business in, etc.] defendants' [restaurant, retail store,
etc.] but the establishment is inaccessible to persons using wheelchairs.
6. On July 26, 1990, Congress
enacted the Americans with Disabilities Act, 42 U.S.C. section 12101, et
seq., establishing the most important civil rights law for persons with
disabilities in our country's history.
7. The Congressional statutory
findings include:
a. "some 43,000,000
Americans have one of more physical or mental disabilities . . .;
b. "historically, society
has tended to isolate and segregate individuals with disabilities and despite
some improvements, such forms of discrimination against individuals with
disabilities continue to be a serious and pervasive social problem;
c. "discrimination against
individuals with disabilities ties persists in such critical areas as . .
.public accommodations;
d. "individuals with
disabilities continually encounter various forms of discrimination, including
. . .the discriminatory effects of architectural . . .
e. "the continuing existence
of unfair and unnecessary discrimination and prejudice denies people with
disabilities the opportunity . . . to pursue those opportunities for which
our free society is justifiably famous . . ."42 U.S.C. section l2101(a).
8. Congress went on to state
explicitly the purpose of the Americans with Disabilities Act to be:
a. "to provide a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities;
b. "to provide clear,
strong, consistent, enforceable standards addressing discrimination against
individuals with disabilities; and
c. "to invoke the sweep of
Congressional authority . . . to regulate commerce, in order to address the
major areas of discrimination faced day-to-day by people with disabilities.''
42 U.S.C. section 12101(b).
9. Congress gave commercial
businesses one and a half years to implement the Act. The effective date was
January 26, 1992.
10. Nevertheless, [defendant's
name] at [address] has not eliminated [name of barrier] barrier that prevents
persons using [wheelchairs, canes, etc.] from [entering, using] this
commercial establishment.[If you have a photo of the barrier, xerox it and
write "A photo of the barrier is attached as Exhibit "A".]
11. One of the most important
parts of the Americans with Disabilities Act is Title III, known as the
"Public Accommodations and Services Operated by Private Entities."
42 U.S.C. section 12181.
12. Congress included a
"[type of establishment]" as a public accommodation covered by the
Act. 42 U.S.C. section 12181.
13. Defendant's business at
address] is a [type of establishment].
14. As relevant to the present
action, discrimination includes, "a failure to remove architectural
barriers . . . that are structural in nature, in existing facilities . . .
where such is readily achievable.'' 42 U.S.C.. section 12182(b)(2)(A)(iv).
15. The U.S.. Department of
Justice, in promulgating the federal regulations to implement this Act,
defines "readily achievable" to mean "easily accomplishable
and able to be carried out without much difficulty or expense,"
including ["installing an entrance ramp or whatever is needed]."28
C.F.R.. section 36.304(a) - (c).
16. Other commercial facilities
similar to the defendant's have made similar modifications, like what [we, I]
ask here. Defendant could easily make its business accessible but has chosen
not to comply with The Americans with Disabilities Act.
17. To assist businesses with
complying with the ADA, Congress has enacted a tax credit for small
businesses and a tax deduction for all businesses. See Section 44 and 190 of
the IRS Code. An eligible small business is allowed a tax credit equal to 50%
of the amount of the eligible access expenditures between $250 and $10,500
for any tax year. A business that removes architectural barriers e.g., by
modifying ramps, grading, entrances, doors and doorways, may receive an
annual tax deduction of up to $15,000 each year.
18. Plaintiffs want to [eat, do
business, shop, etc.] in the defendant's [restaurant, store, etc.].
FIRST
CLAIM OF RELIEF
19. Pursuant to the Americans
with Disabilities Act, 42 U.S.C. section 12101, et seq., and the federal
regulations promulgated pursuant to this Act, 28 C.F.R. §36.304, defendant
was to make the commercial facillty at [address] accessible by January 26,
1992. To date, defendant has not.
20. By failing to remove the
architectural barrier where such removal is readily achievable, defendant
discriminates against plaintiffs and violates the Americans with Disabilities
Act.
WHEREFORE, the plaintiffs,
[Your Name(s)], pray that the Court issue an injunction enjoining the
defendant from continuing its discrimination and that the Court award plaintiffs
such additional or alternative relief as may be just, proper, and equitable,
including costs.
Respectfully
submitted,
Dated: -----------------------------------------end of form ---------------------------------------------- See link - Click on link |
CASE LAW for the PRO SE
LITIGANT
A Reference for those who wish to be Pro Se litigants
Compiled in January of 2007
A judge is required to show a little lenience
toward a Pro Se litigant: Hayes vs Kerner and children
OUTLINE
· CASE LAW PARTIICULARLY RELEVANT TO THE PRO
SE LITIGANT
============================================================================
TOPIC: PRO SE LITIGANT CASE LAW
============================================================================
Non-Lawyer pro se litigants
not to be held to same standards as a practicing lawyer
Many pro se litigants will use this in their pleadings; "Pleadings in this
case are being filed by Plaintiff In Propria Persona, wherein pleadings are
to be considered without regard to technicalities. Propria, pleadings are
not to be held to the same high standards of perfection as practicing
lawyers. See Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th
Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In
Re: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991)."
In Puckett v. Cox, it was held that a pro-se pleading requires less
stringent reading than one drafted by a lawyer (456 F2d 233 (1972 Sixth
Circuit USCA). Justice Black in Conley v. Gibson, 355 U.S. 41 at 48 (1957)
"The Federal Rules rejects the approach that pleading is a game of skill in
which one misstep by counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a proper decision on
the merits." According to Rule 8(f) FRCP and the State Court rule which
holds that all pleadings shall be construed to do substantial justice."
Many pro se litigants will use this in their pleadings; "Pleadings in this
case are being filed by Plaintiff In Propria Persona, wherein pleadings are
to be considered without regard to technicalities. Propria, pleadings are
not to be held to the same high standards of perfection as practicing
lawyers. See Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th
Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In
Re: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991)."
In Puckett v. Cox, it was held that a pro-se pleading requires less
stringent reading than one drafted by a lawyer (456 F2d 233 (1972 Sixth
Circuit USCA). Justice Black in Conley v. Gibson, 355 U.S. 41 at 48 (1957)
"The Federal Rules rejects the approach that pleading is a game of skill in
which one misstep by counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a proper decision on
the merits." According to Rule 8(f) FRCP and the State Court rule which
holds that all pleadings shall be construed to do substantial justice."
Defense against dismissal of
complaint under Rule 12-B
There is legal sufficiency to show Plaintiff is entitled to relief under his
Complaint. A Complaint should not be dismissed for failure to state a claim
unless it appears beyond a doubt that the Plaintiff can prove no set of
facts in support of his claim which would entitle him to relief. See Conley
v. Gibson, 355 U.S. 41, 45-46 (1957) also Neitzke v. Williams, 109 S. Ct.
1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on a
judge's disbelief of a complaint's factual allegations. In applying the
Conley standard, the Court will "accept the truth of the well-pleaded
factual allegations of the Complaint."
There is legal sufficiency to show Plaintiff is entitled to relief under his
Complaint. A Complaint should not be dismissed for failure to state a claim
unless it appears beyond a doubt that the Plaintiff can prove no set of
facts in support of his claim which would entitle him to relief. See Conley
v. Gibson, 355 U.S. 41, 45-46 (1957) also Neitzke v. Williams, 109 S. Ct.
1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on a
judge's disbelief of a complaint's factual allegations. In applying the
Conley standard, the Court will "accept the truth of the well-pleaded
factual allegations of the Complaint."
On Judicial Immunity
Civil Rights Vol 4, US Supreme Court Digest
Page 555 Judges not totally Immune
87 SCT 1213 Pierson v. Ray
94 SCT 1683 Scheur v. Rhodes
96 SCT 984 Imbler v. Pathtman
98 SCT 2018 Monell v. Social SVS
98 SCT 2894 Butz v. Economov
Page 555 Judges not totally Immune
87 SCT 1213 Pierson v. Ray
94 SCT 1683 Scheur v. Rhodes
96 SCT 984 Imbler v. Pathtman
98 SCT 2018 Monell v. Social SVS
98 SCT 2894 Butz v. Economov
On Absolute Immunity for Judges
A complaint is actionable against Judges under Title 42 U.S.C.
1985 (3),
whose immunity does not extend to conspiracy under color of law. Section
1985(3) reaches both conspiracies under color of law and conspiracies
effectuated through purely private conduct.
whose immunity does not extend to conspiracy under color of law. Section
1985(3) reaches both conspiracies under color of law and conspiracies
effectuated through purely private conduct.
On Judges violation of oath of
office
Many judges have a total disregard for their oath of office under
Title 28
Section 453, All judges take this oath of office swearing to uphold the U.S.
Constitution.
Section 453, All judges take this oath of office swearing to uphold the U.S.
Constitution.
Arbitrary
Exercise of Government Powers
Missouri v. Mackey, 127 US 205, 8 S Ct 1161
Minneapolis v. Herrick, 127 US 210, 8 S Ct 1176
Lepper v. Texas 139 US 462, 11 S Ct 577
Giozza v Tiernan, 148 US 657, 13 S Ct 721
Duncan v Missouri, 152 US 377, 14 S Ct 570
Minneapolis v. Herrick, 127 US 210, 8 S Ct 1176
Lepper v. Texas 139 US 462, 11 S Ct 577
Giozza v Tiernan, 148 US 657, 13 S Ct 721
Duncan v Missouri, 152 US 377, 14 S Ct 570
Pro Se litigants entitled to
Fees:
Pro se litigants may be entitled to Attorney fees and costs under the Civil
Rights Attorney's Fee Award Act of 1976, 90 Stat. 2641, as amended 42 USC 1988
Pro se litigants may be entitled to Attorney fees and costs under the Civil
Rights Attorney's Fee Award Act of 1976, 90 Stat. 2641, as amended 42 USC 1988
U.S. Constitutional
Issues:
The Fifth Amendment, provides in
pertinent part that "nor be deprived of
life, liberty, or property, without due process of law..." Due process is
denied when a meaningful hearing is denied as in this cause.
The Seventh Amendment, provides in pertinent part that "In suits at common
law, where the value in controversy shall exceed twenty dollars, the right
to trial by jury shall be preserved..." This language does not include a
single reference to "manipulation" of a jury by the Court in a conspiracy
with lawyers to design a verdict suitable to the Court through the use of
lawyer rules, judicial rules, court rules, or otherwise trumped-up legal
technicalities and instructions which effectively "handcuffs" the jury. All
of these activities are no more or less than a denial of the right to a jury
of peers with the constitutional authority to judge both the facts and law
in a case.
The Thirteenth Amendment, provides in pertinent part that "Neither slavery
nor involuntary servitude, except as a punishment for crime....., shall
exist within the United States, or any place subject to their jurisdiction".
These judges through their private conduct in conspiracy with the lawyer
defendants, caused the Court to effectuate this Plaintiff to "Compulsory
Involuntary Servitude", an act punishable under Title 18 1584 as a criminal act.
The Fourteenth Amendment Due Process Clause and Equal Protection clause
(Section 1), expressly declares no state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property,
without due process of law..."
The Fourteenth Amendment, Section 3, provides in pertinent part that "No
person shall hold any office, civil or military, under the United States or
under any State.....who, having previously taken an oath,....as an executive
or judicial officer of any State to support the Constitution of the United
States, shall have engaged in insurrection or rebellion against the same...."
life, liberty, or property, without due process of law..." Due process is
denied when a meaningful hearing is denied as in this cause.
The Seventh Amendment, provides in pertinent part that "In suits at common
law, where the value in controversy shall exceed twenty dollars, the right
to trial by jury shall be preserved..." This language does not include a
single reference to "manipulation" of a jury by the Court in a conspiracy
with lawyers to design a verdict suitable to the Court through the use of
lawyer rules, judicial rules, court rules, or otherwise trumped-up legal
technicalities and instructions which effectively "handcuffs" the jury. All
of these activities are no more or less than a denial of the right to a jury
of peers with the constitutional authority to judge both the facts and law
in a case.
The Thirteenth Amendment, provides in pertinent part that "Neither slavery
nor involuntary servitude, except as a punishment for crime....., shall
exist within the United States, or any place subject to their jurisdiction".
These judges through their private conduct in conspiracy with the lawyer
defendants, caused the Court to effectuate this Plaintiff to "Compulsory
Involuntary Servitude", an act punishable under Title 18 1584 as a criminal act.
The Fourteenth Amendment Due Process Clause and Equal Protection clause
(Section 1), expressly declares no state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property,
without due process of law..."
The Fourteenth Amendment, Section 3, provides in pertinent part that "No
person shall hold any office, civil or military, under the United States or
under any State.....who, having previously taken an oath,....as an executive
or judicial officer of any State to support the Constitution of the United
States, shall have engaged in insurrection or rebellion against the same...."
USC 14th Ammendment (Deprived
of the use of property)
Tracy v. Ginzberg 205 US 170, 27 S Ct. 461
Wagner v Leser, 239 US 207, 36 S Ct 66
Fuentes v. Shevin 407 US 67, 92 S Ct 1983
Leis v Flynt, 439 US 438, 99 S Ct 698, 11 Ohio Ops 3rd 302
Kent.Dept. of Corrections v. Thompson, 490 US 454, 109 S Ct 1904
Wagner v Leser, 239 US 207, 36 S Ct 66
Fuentes v. Shevin 407 US 67, 92 S Ct 1983
Leis v Flynt, 439 US 438, 99 S Ct 698, 11 Ohio Ops 3rd 302
Kent.Dept. of Corrections v. Thompson, 490 US 454, 109 S Ct 1904
What constitutes property protected under constitution?
Slaughter-House Cases, 16 Wall 36
Buchanan v Warley, 245 US 60, 38 S Ct 16
Liggett Co. v Baldridge, 278 US 105, 49 S Ct 57
Board of Regents v Roth, 408 US 564, 92 S Ct 2701
Buchanan v Warley, 245 US 60, 38 S Ct 16
Liggett Co. v Baldridge, 278 US 105, 49 S Ct 57
Board of Regents v Roth, 408 US 564, 92 S Ct 2701
On Due Process Violation 5th and 14th
Butler v. Perry, 240 US 328, 36 S Ct 288
Brinkerhoff- Faris Trust v Hill, 281 US 673, 50 S Ct 451
Curry v. McCanless, 307 US 357, 59 S Ct 900
*Rochin v California, 342 US 165, 72 S Ct 25, Alr2d 1396
*Ivanho Irrig. Dist. v. McCracken, 357 US 275, 78 S CT 1174
*Bartkus v Illinois, 359 US 121, 79 S Ct 676
*Gault 387 US 1, 87 S Ct 1428
*Wolff v McDonnell, 418 US 539, 94 S Ct 2963
**Bordenkircher v. Hayes, 434 US 357, 98 S Ct 663
**Rostker v. Goldberg, 453 US 57, 101 S Ct 2646
**States v. Goodwin 457 US 368, 102 S Ct 2485
**Colorado v. Connelly, 479 US 157, 107 S Ct 515
**DeShaney v. Winnebago, 489 US 189, 109 S Ct 998
**Collins v Harker, 112 S Ct. 1061
Brinkerhoff- Faris Trust v Hill, 281 US 673, 50 S Ct 451
Curry v. McCanless, 307 US 357, 59 S Ct 900
*Rochin v California, 342 US 165, 72 S Ct 25, Alr2d 1396
*Ivanho Irrig. Dist. v. McCracken, 357 US 275, 78 S CT 1174
*Bartkus v Illinois, 359 US 121, 79 S Ct 676
*Gault 387 US 1, 87 S Ct 1428
*Wolff v McDonnell, 418 US 539, 94 S Ct 2963
**Bordenkircher v. Hayes, 434 US 357, 98 S Ct 663
**Rostker v. Goldberg, 453 US 57, 101 S Ct 2646
**States v. Goodwin 457 US 368, 102 S Ct 2485
**Colorado v. Connelly, 479 US 157, 107 S Ct 515
**DeShaney v. Winnebago, 489 US 189, 109 S Ct 998
**Collins v Harker, 112 S Ct. 1061
Jurisdiction of the case (Basic element
of due process)
Powell v. Alabama, 287 US 45, 53 S Ct 55, 84 ALR 527
Sense of fairplay shocked is not due process (Congress Barred)
Galvan v Press, 347 US 522, 74 S Ct 737
Groban 352 US 330, 77 S Ct 510
Kinsella v United States, 361 US 234, 80 S Ct 297
Bodie v Conneticut, 401 US 371, 91 S Ct 780
Ross v Moffitt, 417 US 600, 94 S Ct 2437
United States v. Salerno, 481 US 739, 107 S Ct 2095
Groban 352 US 330, 77 S Ct 510
Kinsella v United States, 361 US 234, 80 S Ct 297
Bodie v Conneticut, 401 US 371, 91 S Ct 780
Ross v Moffitt, 417 US 600, 94 S Ct 2437
United States v. Salerno, 481 US 739, 107 S Ct 2095
14th Ammendment is the due process denial right
Collins v. Harker 112 S Ct 1061
Hebert v Louisiana, 272 US 312, 47 S Ct 103
Georgia Power v Decatur, 281 US 505, 50 S Ct 369
Hebert v Louisiana, 272 US 312, 47 S Ct 103
Georgia Power v Decatur, 281 US 505, 50 S Ct 369
Discrimination as Violation of Due Process (5th Ammendment)
Bowling v Sharpe, 347 US 497, 74 S Ct 693
Schneider v Rusk, 377 US 163, 84 S Ct 1187
Shipiro v Thompson 394 US 618, 89 S ct 1322
United States v Moreno, 413 US 528, 93 S Ct 2821
Johnson v Robinson 415 US 361, 94 S Ct 1160
Buckley v Valeo, 424 US 1, 96 S Ct 612
Mathews v De Castro, 429 US 181, 97 S Ct 431
Fullilove v Klutznick, 448 US 448, 100 S Ct 2758
Lyng v Castillo, 477 US 635, 106 S Ct 2727
Schneider v Rusk, 377 US 163, 84 S Ct 1187
Shipiro v Thompson 394 US 618, 89 S ct 1322
United States v Moreno, 413 US 528, 93 S Ct 2821
Johnson v Robinson 415 US 361, 94 S Ct 1160
Buckley v Valeo, 424 US 1, 96 S Ct 612
Mathews v De Castro, 429 US 181, 97 S Ct 431
Fullilove v Klutznick, 448 US 448, 100 S Ct 2758
Lyng v Castillo, 477 US 635, 106 S Ct 2727
Fourteenth Ammendment and 42
USCS 1983
Statutory requirement under color of law: Lugar v Edmondson Oil,
457 US 922, 102 S Ct 2744
Civil Rights Issues:
A Continuance of Constitutional Issues
Title 42 USC 1983 provides in relevant part that: "every person who, under
color of any statute, ordinance, regulation, custom, or usage, of any
State....subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution. ..shall
be liable to the party injured...."
A Title 42 1985 action which seeks compensatory and punitive damages in
conjunction with equitable relief as in this case is considered a legal
claim, entititling Plaintiff to a jury trial. See An-Ti v. Michigan
Technological Univ., 493 F. Supp. 1137.
Plaintiff alleges a "class based", invidiously discriminatory animus is
behind the conspirators' action as the Court records reflect. That the
actions were clearly a product of bias and prejudice of the Court. See
Griffen v. Breckridge, 403 U.S. 88, 102 (1971)
The U.S. Supreme Court acknowledged in Bray v. Alexandria Women's Health
Clinic 113 S.Ct.753 (1993) that the standard announced in Griffen was not
restricted to "race" discrimination. It is therefore reasonable to assume
that 1985 (3) may be used for "class-based" claims other than race which is
alleged in this case.
The defendant lawyers acting in conspiracy with state actors under color of
law have become state actors in this case. The U.S. Supreme Court has ruled
that "private parties", lawyers in this case, may be held to the same
standard of "state actors" where the final and decisive act was carried out
in conspiracy with a state actor or state official. See Dennis v. Sparks,
449 U.S. 24, 101 S.Ct., 183 also See Adickes v. S.H. Kress & Co., 398 U.S.
144, 90 S.Ct. 1598.
Plaintiff's Complaint is based in part on discrimination and political
affiliations by lawyers and lawyer-judges, under 42 USCA 1983 & 1985. See
reversal case Acevedo-Diaz v Aponte (1993, CA1 Puerto Rico) 1 F3d 62,
summary op at (CA1 Puerto Rico) 21 M.L.W. 3212, 14 R.I.L.W. 389.
Section 1985(3) under Title 42 reaches both conspiracies under color of law
and conspiracies effectuated through purely private conduct. In this case
Plaintiff has alleged a class-based, invidiously discriminatory animus is
behind the conspirators' action as the court records reflect. That
actionable cause is the treatment of a non-lawyer pro se litigant as a
distinct "class-based subject" of the Court, wherein denial of equal
protection of the laws and denial of due process was clearly the product of
bias and prejudice of the Court. See Griffen v. Breckenridge, 403 U.S. 88,
102 (1971).
The U.S. Supreme Court acknowledged in Bray v. Alexandria Women's Health
Clinic 113 S.Ct. 753 (1993) that the standard announced in Griffen was not
restricted to "race" discrimination. It is therefore reasonable to assume
that 1985(3) may be used for "class-based" claims other than race as alleged
in this case. It is also important to note in Bray the U.S. Supreme Court's
interpretation of the requirement under 1985(3) that a private conspiracy be
one "for the purpose of depriving... any person or "class" of persons of the
equal protection of the laws, or of equal privileges and immunities under
the laws, which the Court said mandates "an intent to deprive persons of a
right guaranteed against private impairment.
The U.S. Supreme Court in Griffen emphasized 1985(3)
legislative history was directed to the prevention of deprivations which
shall attack the equality of rights of American citizens; that any violation
of the right, the animus and effect of which is to strike down the citizen,
to the end that he may not enjoy equality of rights as contrasted with his
and other citizens' rights, shall be within the scope of remedies... Id. at 100.
Supreme Court has ruled that "private parties" may be held to the same
standard of "state actors" in cases such as the instant cause where the
final and decisive act was carried out in conspiracy with a state official.
See Dennis v. Sparks, 449 U.S. 24, 101 S. Ct., 183 and Adickes v. S.H. Kress
& Co., 398 U.S. 144, 90 S. Ct. 1598.
Jurisdictional Issues:
It is proper for this District Court to take Jurisdiction of any civil
action authorized by law to be commenced by any person. See Title 28 Section
1343 (1)(2)(3)(4) .
Jurisdiction is proper under Title 28 Sections 1332, 1335, 1357, 1441 and 1603.
The First issue is "Convenience" and second issue is the "interest-of-
justice" standard under 28 USCA 1406.
Dismissal Issues:
The Complaint should not be dismissed unless it appears to a certainty that
Plaintiffs would be entitled to no relief under any state of facts that
could be proved in support of the claims. See Gomez v Toledo (1980, US) 64 L
Ed 2d 572, 100 S Ct 1920.
The allegations of a Complaint prepared by a state prisoner acting pro se
are generally taken as true for purposes of motion to dismiss. See Hughes v
Rowe (1980, US) 66 L Ed 2d 163, 101 S Ct 173.
RULE 60
The final judgement of this Court should be vacated under Rule 60(B). The
Court is requested to weigh the interest in substantial justice against the
simple need for preserving finality of the judgement. See Expenditures
Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 1974, 500 F.2d.
808, 163 U.S. App.D.C.140. See also Brown v. Clark Equipment Co., D.C. Mc.
1982, 961 F.R.D. 166.
Court -a judgement to dismiss because of some trumped up technicality giving
excuse to dismiss a non-lawyer pro se litigant's complaint with merit in a
lawyer dominated Court hearing. In support of Plaintiffs Motion to vacate
Judgement, the following cases are offered; Picking v. Pennsylvania Railway,
(151 F2d.240) Third Circuit Court of Appeals.
The ruling of the court in this case held; "Where a plaintiff pleads pro se
in a suit for protection of civil rights, the court should endeavor to
construe the Plaintiff's pleading without regard to technicalities." In
Walter Process Equipment v. Food Machinery 382 U.S. 172 (1965) it was held
that in a "motion to dismiss", the material allegations of the complaint are
taken as admitted."
It is proper for this District Court to take Jurisdiction of any civil
action authorized by law to be commenced by any person. See Title 28 Section
1343 (1)(2)(3)(4) .
Jurisdiction is proper under Title 28 Sections 1332, 1335, 1357, 1441 and 1603.
The First issue is "Convenience" and second issue is the "interest-of-
justice" standard under 28 USCA 1406.
Dismissal Issues:
The Complaint should not be dismissed unless it appears to a certainty that
Plaintiffs would be entitled to no relief under any state of facts that
could be proved in support of the claims. See Gomez v Toledo (1980, US) 64 L
Ed 2d 572, 100 S Ct 1920.
The allegations of a Complaint prepared by a state prisoner acting pro se
are generally taken as true for purposes of motion to dismiss. See Hughes v
Rowe (1980, US) 66 L Ed 2d 163, 101 S Ct 173.
RULE 60
The final judgement of this Court should be vacated under Rule 60(B). The
Court is requested to weigh the interest in substantial justice against the
simple need for preserving finality of the judgement. See Expenditures
Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 1974, 500 F.2d.
808, 163 U.S. App.D.C.140. See also Brown v. Clark Equipment Co., D.C. Mc.
1982, 961 F.R.D. 166.
Court -a judgement to dismiss because of some trumped up technicality giving
excuse to dismiss a non-lawyer pro se litigant's complaint with merit in a
lawyer dominated Court hearing. In support of Plaintiffs Motion to vacate
Judgement, the following cases are offered; Picking v. Pennsylvania Railway,
(151 F2d.240) Third Circuit Court of Appeals.
The ruling of the court in this case held; "Where a plaintiff pleads pro se
in a suit for protection of civil rights, the court should endeavor to
construe the Plaintiff's pleading without regard to technicalities." In
Walter Process Equipment v. Food Machinery 382 U.S. 172 (1965) it was held
that in a "motion to dismiss", the material allegations of the complaint are
taken as admitted."
Rico Case Law:
The defendants constitute an illegal enterprise in acts or threat of acts in
violation of Civil Rico Federal Racketeering Act USC 18, 1961-1963 et seq.
The following are particular violations:
The defendants constitute an illegal enterprise in acts or threat of acts in
violation of Civil Rico Federal Racketeering Act USC 18, 1961-1963 et seq.
The following are particular violations:
18 USC 241: Conspiracy against Rights of Citizens:
18 USC 3: Accessory after the fact, knowing that an offense has been
committed against the United States, relieves, receives, comforts or assists
the offender in order to hinder or prevent his apprehension, trial or punishment.
18 USC 242: Deprivation of Rights color of law of rights protected under the
Constitution of the U.S.
18 USC 512: Tampering with a witness
18 USC 1341: Mail fraud
18 USC 1343: Wire fraud
18 USC 1503: Obstruction of justice
18 USC 1510: Obstructing of criminal investigation
18 USC 1513: Retaliating against a witness, victim or informant
18 USC 1951: Interference with interstate commerce
18 USC 1621: Perjury
18 USC 1001: Fraud
Continued statute of limitation in ongoing activity (conspiracy) (bankruptcy fraud)
18 USC 3: Accessory after the fact, knowing that an offense has been
committed against the United States, relieves, receives, comforts or assists
the offender in order to hinder or prevent his apprehension, trial or punishment.
18 USC 242: Deprivation of Rights color of law of rights protected under the
Constitution of the U.S.
18 USC 512: Tampering with a witness
18 USC 1341: Mail fraud
18 USC 1343: Wire fraud
18 USC 1503: Obstruction of justice
18 USC 1510: Obstructing of criminal investigation
18 USC 1513: Retaliating against a witness, victim or informant
18 USC 1951: Interference with interstate commerce
18 USC 1621: Perjury
18 USC 1001: Fraud
Continued statute of limitation in ongoing activity (conspiracy) (bankruptcy fraud)
============================================================================
TOPIC: Judicial Notice: definition
==============================================================================
Judicial Notice is discretionary. With Judicial Cognizance, the judge is BOUND
to act:
See Black's Law, 6th Ed, pg 847
Judicial cognizance. Judicial notice or knowledge upon which a judge is
bound to act without having it proved in evidence.
Judicial notice. (pg. 849) The act by which a court, in conducting a trial,
or framing its decision, will, of its own motion or on request of a party,
and without the production of evidence, recognize the existence and truth of
certain facts, having a bearing on the controversy at bar, ....
See Black's Law, 6th Ed, pg 847
Judicial cognizance. Judicial notice or knowledge upon which a judge is
bound to act without having it proved in evidence.
Judicial notice. (pg. 849) The act by which a court, in conducting a trial,
or framing its decision, will, of its own motion or on request of a party,
and without the production of evidence, recognize the existence and truth of
certain facts, having a bearing on the controversy at bar, ....
============================================================================
TOPIC: Reasons to Vacate Void Judgments - Lack of Jurisdiction
=============================================================================
Reasons to Vacate Void Judgments -
Lack of Jurisdiction
(http://www.amatterofjustice.org/amoj/ library/0008reas ons.htm)
(http://www.amattero fjustice. org/amoj/ cases/d046469. pdf)
January 2, 2004 Void Judgments Understanding Void Judgments
Definition of Void Judgment: any judgment which a court renders while lacking jurisdiction, either of the subject matter or the parties.
(http://www.amatterofjustice.org/amoj/ library/0008reas ons.htm)
(http://www.amattero fjustice. org/amoj/ cases/d046469. pdf)
January 2, 2004 Void Judgments Understanding Void Judgments
Definition of Void Judgment: any judgment which a court renders while lacking jurisdiction, either of the subject matter or the parties.
* Wahl v. Round Valley Bank 38 Ariz , 411, 300 P. 955(1931),
* Tube City Mining & Millng Co. v. Otterson, 16 Ariz. 305, 146p 203(1914); and
* Millken v. Meyer, 311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d 278 (1940).
* Tube City Mining & Millng Co. v. Otterson, 16 Ariz. 305, 146p 203(1914); and
* Millken v. Meyer, 311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d 278 (1940).
Subject matter jurisdiction can never be presumed, waived, or
constructed,
even by mutual consent of the parties, and it has two parts:
even by mutual consent of the parties, and it has two parts:
(1) the statutory or common law authority for the court to hear
the case, and
(2) the appearance and testimony of a competent fact witness - in other
words, sufficiency of pleadings.
(2) the appearance and testimony of a competent fact witness - in other
words, sufficiency of pleadings.
When we examine a judgment, the following indices tell us whether a court
had subject matter jurisdiction. Successful litigants will know each and
every one of them by heart. Subject matter jurisdiction usually fails
because of one of these reasons:
(1) No petition in the record of the case, Brown v. VanKeuren,
340 Ill. 118,122 (1930).
(2) Defective petition filed, Same case as above.
(3) Fraud committed in the procurement of jurisdiction, Fredman
Brothers Furniture v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E. 2d
893(1985)
(4) Fraud upon the court, In re Village of Willowbrook, 37 Ill,
App. 3d 393(1962)
(5) Judge does not follow statutory procedure, Armstrong v.
Obucino, 300 Ill 140, 143 (1921)
(6) Unlawful activity of a judge, Code of Judicial Conduct.
(7) Violation of due process, Johnson v. Zerbst, 304 U.S. 458,
58 S.Ct. 1019(193 ; Pure Oil Co. v. City of Northlake , 10 Ill.2d 241, 245,
140 N.E. 2d 289 (1956); Hallberg v Goldblatt Bros., 363 Ill 25 (1936), ( If
the court exceeded it's statutory authority. Rosenstiel v. Rosenstiel, 278
F. Supp. 794 (S.D.N.Y. 1967)
(8) One or more actions violated 11 U.S.C. 362(a), in re
Garcia, 109 B.R. 335 (N.D> Illinois, 1989).
(9) No proper pleadings presented a justiciable issue to the
court, Ligon v. Williams, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist.
1994)
(10) A complaint states no cognizable cause of action against that
party, Charles v. Gore, 248 Ill App. 3d 441, 618 N.E. 2d 554 (1st. Dist.
1993)
(11) A person/law firm prohibited by law to practice law in that
jurisdiction represented a litigant before the court.
(12) The judge engaged in bribery (the Alemann cases, Bracey v
Warden , U.S. Supreme Court No. 96-6133(June 9, 1997)
(13) No one properly issued a summons.
(14) No one made service of process pursuant to statute and Supreme
Courth Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E. 2d 706, 708
(1953)
(15) Someone did not comply with the rules of the Circuit court.
(16) Someone did not comply with the local rules of the special
court (one where the judge does not act impartially, Bracey v. Warden, U.S.
Supreme Court No. 96-6133(June 9, 1997)
(17) The statute is vague, People v. Williams, 638 N.E. 2d 207 (1st
Dist. (1994)
(18) The movant did not give proper notice to all parties, Wilson v.
Moore, 13 Ill. App. 3d 632, 301 N.E. 2d 39 (1st Dist. (1973)
(19) A judge based an order/judgment on a void order/judgment,
Austin v. Smith, 312 F 2d 337, 343(1962);English v. English, 72 Ill. App. 3d
736, 393 N.E. 2d 18 (1st Dist. 1979) or
(20) Someone violated the public policy of the State of Illinois,
Martin-Tregona v Roderick, 29 Ill. App. 3d 553, 331 N.E. 2d 100 (1st Dist.
1975)
(21) A judge does not validly hold office because of the absence of
or a defect in one or more of the following:
340 Ill. 118,122 (1930).
(2) Defective petition filed, Same case as above.
(3) Fraud committed in the procurement of jurisdiction, Fredman
Brothers Furniture v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E. 2d
893(1985)
(4) Fraud upon the court, In re Village of Willowbrook, 37 Ill,
App. 3d 393(1962)
(5) Judge does not follow statutory procedure, Armstrong v.
Obucino, 300 Ill 140, 143 (1921)
(6) Unlawful activity of a judge, Code of Judicial Conduct.
(7) Violation of due process, Johnson v. Zerbst, 304 U.S. 458,
58 S.Ct. 1019(193 ; Pure Oil Co. v. City of Northlake , 10 Ill.2d 241, 245,
140 N.E. 2d 289 (1956); Hallberg v Goldblatt Bros., 363 Ill 25 (1936), ( If
the court exceeded it's statutory authority. Rosenstiel v. Rosenstiel, 278
F. Supp. 794 (S.D.N.Y. 1967)
(8) One or more actions violated 11 U.S.C. 362(a), in re
Garcia, 109 B.R. 335 (N.D> Illinois, 1989).
(9) No proper pleadings presented a justiciable issue to the
court, Ligon v. Williams, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist.
1994)
(10) A complaint states no cognizable cause of action against that
party, Charles v. Gore, 248 Ill App. 3d 441, 618 N.E. 2d 554 (1st. Dist.
1993)
(11) A person/law firm prohibited by law to practice law in that
jurisdiction represented a litigant before the court.
(12) The judge engaged in bribery (the Alemann cases, Bracey v
Warden , U.S. Supreme Court No. 96-6133(June 9, 1997)
(13) No one properly issued a summons.
(14) No one made service of process pursuant to statute and Supreme
Courth Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E. 2d 706, 708
(1953)
(15) Someone did not comply with the rules of the Circuit court.
(16) Someone did not comply with the local rules of the special
court (one where the judge does not act impartially, Bracey v. Warden, U.S.
Supreme Court No. 96-6133(June 9, 1997)
(17) The statute is vague, People v. Williams, 638 N.E. 2d 207 (1st
Dist. (1994)
(18) The movant did not give proper notice to all parties, Wilson v.
Moore, 13 Ill. App. 3d 632, 301 N.E. 2d 39 (1st Dist. (1973)
(19) A judge based an order/judgment on a void order/judgment,
Austin v. Smith, 312 F 2d 337, 343(1962);English v. English, 72 Ill. App. 3d
736, 393 N.E. 2d 18 (1st Dist. 1979) or
(20) Someone violated the public policy of the State of Illinois,
Martin-Tregona v Roderick, 29 Ill. App. 3d 553, 331 N.E. 2d 100 (1st Dist.
1975)
(21) A judge does not validly hold office because of the absence of
or a defect in one or more of the following:
a. qualification as a candidate (typically include American
citizenship, bar membership, registered voter status, a number of years of
service as an attorney, filing of a financial statement that shows
compliance with law, not serving in any other branch of government),
b. appointment or election to office (illegal campaign contributions or
other illegal financial entanglements can disqualify),
c. acceptance of appointment or elected position (some never bother to
accept the appointment or elected position),
d. one or more loyalty oaths associated with qualification and service
(a typical judge must swear the following loyalty oaths, evidenced by the
signature of a person duly authorized to take acknowledgements):
citizenship, bar membership, registered voter status, a number of years of
service as an attorney, filing of a financial statement that shows
compliance with law, not serving in any other branch of government),
b. appointment or election to office (illegal campaign contributions or
other illegal financial entanglements can disqualify),
c. acceptance of appointment or elected position (some never bother to
accept the appointment or elected position),
d. one or more loyalty oaths associated with qualification and service
(a typical judge must swear the following loyalty oaths, evidenced by the
signature of a person duly authorized to take acknowledgements):
i. Elector's (voter registration) loyalty
oath
ii. Bar member's oath
iii. Pre-appointment/election candidate's loyalty oath
iv. Candidate's oath
v. Public Officer's or Judge's loyalty oath
vi. Public employee's loyalty oath.
ii. Bar member's oath
iii. Pre-appointment/election candidate's loyalty oath
iv. Candidate's oath
v. Public Officer's or Judge's loyalty oath
vi. Public employee's loyalty oath.
About Loyalty Oaths and
Appointments
Many public employees have serious defects in their oath and
appointment
documents, and many do not have those documents on record as required by
law. The wise litigant will obtain certified copies of all such documents
for all officers of the court (judges, clerk, prosecutors or opposing
counsel, and bailiffs), and move for the disqualification of any and all for
whom valid oath and appointment documents do not exist.
The judge validly holds office if and only if a copy of the judge's oath of
office exists, and you can rightly demand that the proper final oath sworn
or affirmed upon taking office situates in the judge's chambers. You can go
to his office and demand to see a copy of his oath of office at any time.
The federal laws covering judges and other public officials are to be found
at 5 U.S.C. 3331, 28 U.S.C. 543, and 5 U.S.C. 1983. States typically have
similar laws. A judge trespasses upon the court unless he complies with all
of the provisions of relevant law. Once a proven trespasser upon the court
(upon the law) not one of his judgments, pronouncements or orders have
validity. All constitute nullities and have void status.
Upon discovering such a trespass, you will face serious difficulty getting
the trespasser removed from office, and the fact that so many litigants give
up in the process explains why so many criminal trespassers still function
in public office.
documents, and many do not have those documents on record as required by
law. The wise litigant will obtain certified copies of all such documents
for all officers of the court (judges, clerk, prosecutors or opposing
counsel, and bailiffs), and move for the disqualification of any and all for
whom valid oath and appointment documents do not exist.
The judge validly holds office if and only if a copy of the judge's oath of
office exists, and you can rightly demand that the proper final oath sworn
or affirmed upon taking office situates in the judge's chambers. You can go
to his office and demand to see a copy of his oath of office at any time.
The federal laws covering judges and other public officials are to be found
at 5 U.S.C. 3331, 28 U.S.C. 543, and 5 U.S.C. 1983. States typically have
similar laws. A judge trespasses upon the court unless he complies with all
of the provisions of relevant law. Once a proven trespasser upon the court
(upon the law) not one of his judgments, pronouncements or orders have
validity. All constitute nullities and have void status.
Upon discovering such a trespass, you will face serious difficulty getting
the trespasser removed from office, and the fact that so many litigants give
up in the process explains why so many criminal trespassers still function
in public office.
============================================================================
TOPIC: Powe v. US: what does "citizen" mean?
============================================================================
Powe v. United States, 5 Cir., 1940,
109 F.2d 147, certiorari denied, 309 U.S. 679, 60 S.Ct. 717
I finally found it. It's quoted a bit different than the opinion quoted:
I finally found it. It's quoted a bit different than the opinion quoted:
In Powe v.
U.S. 109 F2d 147, 149 (1940) the court determined the term
`citizen,' when used in federal laws, excludes State citizens.
The court was specifically speaking about 18 U.S.C.A §51 in its
deleiniation of citizens, however, that does not mean it does not apply to
other stautory areas.
Interesting note: Appeals from the District Court of the United States
Proper quotes below:
`citizen,' when used in federal laws, excludes State citizens.
The court was specifically speaking about 18 U.S.C.A §51 in its
deleiniation of citizens, however, that does not mean it does not apply to
other stautory areas.
Interesting note: Appeals from the District Court of the United States
Proper quotes below:
"In its construction [18 U.S.C.A. § 51] it is proper to apply
the rule that
criminal laws are to be construed strictly, and to bear in mind that other
rule that a construction is to be avoided, if possible, that would render
the law unconstitutional, or raise grave doubts thereabout. In view of these
rules it is held that "citizen" means "citizen of the United States", and
not person generally, nor citizen of a State; and that the "rights and
privileges secured by the Constitution or laws of the United States" means
those specially and validly secured thereby. Thus limited, this section has
been enforced as constitutional. " POWE v. UNITED STATES, 109 F.2d 147 (5th
Cir. 1940)
OR
"In its construction [18 U.S.C.A. &Sect; 51] it is proper to apply the rule that
criminal laws are to be construed strictly, .... In view of these rules it
is held that "citizen" means "citizen of the United States", and not person
generally, nor citizen of a State; and that the "rights and privileges
secured by the Constitution or laws of the United States" means those
specially and validly secured thereby. Thus limited, this section has been
enforced as constitutional. " POWE v. UNITED STATES, 109 F.2d 147 (5th Cir.
1940)
OR taken out of context (perhaps)
"... it is held that "citizen" means "citizen of the United States", and not
person generally, nor citizen of a State; ... POWE v. UNITED STATES, 109
F.2d 147 (5th Cir. 1940)
criminal laws are to be construed strictly, and to bear in mind that other
rule that a construction is to be avoided, if possible, that would render
the law unconstitutional, or raise grave doubts thereabout. In view of these
rules it is held that "citizen" means "citizen of the United States", and
not person generally, nor citizen of a State; and that the "rights and
privileges secured by the Constitution or laws of the United States" means
those specially and validly secured thereby. Thus limited, this section has
been enforced as constitutional. " POWE v. UNITED STATES, 109 F.2d 147 (5th
Cir. 1940)
OR
"In its construction [18 U.S.C.A. &Sect; 51] it is proper to apply the rule that
criminal laws are to be construed strictly, .... In view of these rules it
is held that "citizen" means "citizen of the United States", and not person
generally, nor citizen of a State; and that the "rights and privileges
secured by the Constitution or laws of the United States" means those
specially and validly secured thereby. Thus limited, this section has been
enforced as constitutional. " POWE v. UNITED STATES, 109 F.2d 147 (5th Cir.
1940)
OR taken out of context (perhaps)
"... it is held that "citizen" means "citizen of the United States", and not
person generally, nor citizen of a State; ... POWE v. UNITED STATES, 109
F.2d 147 (5th Cir. 1940)
United
States 5th Circuit Court of Appeals Reports
POWE v.
UNITED STATES, 109 F.2d 147 (5th Cir. 1940)
POWE et al. v. UNITED STATES.
No. 9130.
Circuit Court of Appeals, Fifth Circuit.
January 17, 1940.
Page 148 Appeals from the District Court of the United States for the
Southern District of Alabama; John McDuffie, Judge. Sam B. Powe and
others were convicted for conspiring to injure, oppress, threaten and
intimidate a named citizen of the United States in the free exercise of his
right and privilege as such
citizen to speak and publish his views in certain newspapers, and they
appeal. Reversed and remanded with direction. Harry T. Smith, D.R.
Coley, Jr., and George A. Sossaman, all of Mobile, Ala., for appellants.
Francis H. Inge, U.S. Atty., of Mobile, Ala., for appellee. Before
SIBLEY, HUTCHESON, and McCORD, Circuit Judges. SIBLEY, Circuit Judge.
The five appellants were indicted (with another who was acquitted) for
conspiring to injure, oppress, threaten and intimidate a named citizen of
the United States in the free exercise of his right and privilege as such
citizen to speak and publish his views in certain newspapers. Their several
demurrers were overruled and appellants Page 149 were convicted and
sentenced. Of the numerous rulings
asserted to be error on this appeal we need consider only the judgment
upon the demurrers. The grounds of demurrer to each count include
these: That no crime against the United States is charged; that the right
of free speech and free press is not secured by the Constitution and laws
of the United States against infraction by individuals, but only by federal
or State action; and that the counts are too vague. The eight counts are
varying statements of the same conspiracy. Some of them say the conspiracy
was to prevent future publications; others to oppress and injure because of
past publications. Some counts state the nature of the publications, and
the means to be used to oppress the writer; others fail so to state, baldly
alleging in the words of the statute a conspiracy to injure and oppress the
citizen of the United States in the exercise of or for having exercised his
privilege of free speech and free press. One of the fullest statements is the
second count, which charges that the conspiracy was to injure and oppress
the executive editor of the Mobile Register and the Mobile Press,
newspapers published in Mobile, Alabama, he being a citizen of the United
States, in his exercise of his right and privilege secured to him by the
Constitution and laws of the United States, to write and print in said
newspapers his editorials exposing and condemning various forms of illegal
gambling and illegal lotteries in Mobile County, Alabama, and calling upon
the officials of the City of Mobile and County of Mobile, charged with the
suppression thereof, to take action to suppress the same and to punish the
offenders; the plan being to procure a photograph of the editor in a lewd
or obscene act and to use the same in threatening to show the photograph,
and in threatening
to use it as evidence in prosecuting the editor, and thus to stop his
publications; numerous overt acts to carry out the plan being alleged. Do
these facts make an offense against the United States? The statute
relied on in support of the indictment originated as Section 6 of the Act
of May 31, 1870, 16 Stat. 141 , entitled "An Act of enforce the Right of
Citizens of the United States to vote in the several States of this Union,
and for other Purposes." It appeared in the Revised Statutes with some
alteration as Section 5508; was carried without change into the Criminal
Code as Section 19; and now appears as Section 51 of Title 18 of the United
States Code, 18 U.S.C.A. § 51. The applicable language is: "If two or more
persons conspire to injure, oppress, threaten, or intimidate any citizen in
the free exercise or enjoyment of any right or privilege secured to him by
the Constitution or laws of the United States, or because of his having so exercised
the same * * * they shall be fined not more than $5,000 and imprisoned not
more than ten years, and shall, moreover, be thereafter ineligible to any
office, or place of honor, profit, or trust created by the Constitution or
laws of the United States." Some of the Sections of the Enforcement Act of
1870 were repealed in 1909, but Section 6, as then reenacted, stands good
for whatever it properly covers. United States v. Moseley, 238 U.S. 383, 35
S.Ct. 904, 59 L.Ed. 1355. In its construction it is proper to apply the
rule that criminal laws are to be construed strictly, and to bear in mind
that other rule that a construction is to be avoided, if possible, that
would render the law unconstitutional, or raise grave doubts thereabout. In
view of these rules it is held that "citizen" means "citizen of the United
States", and not person generally, nor citizen of a
State; and that the "rights and privileges secured by the Constitution or
laws of the United States" means those specially and validly secured
thereby. Thus limited, this section has been enforced as constitutional. Ex
parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; United States v.
Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673; Logan v. United States, 144
U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; United States v. Moseley, supra. In
the Yarbrough case the right involved was that to vote in a Congressional
election, as it was in the Moseley case; in the Waddell case it was the
right to make a federal homestead entry; and in the Logan case it was the
right to be secure from
lawless violence while a prisoner in the hands of a United States Marshal.
These matters, all within the federal power, Congress could protect under
the general authority to pass "all necessary and proper laws", under
U.S.C.A. Constitution, Art. 1, Sect. 8, Par. 18. But Section 5519 of the
Revised Statutes, which undertook similarly to punish conspiracies against
any person to deprive him of the equal protection of the laws, or Page 150
to prevent State authorities from affording such protection, was held
unconstitutional, because neither the Fourteenth Amendment nor any other
part of the Constitution put the matter of conspiracies by individuals
touching such matters within the power of Congress, but only gave power to
correct wrong action by the State or its officers. It was so held in United
States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290, where the person
mobbed was in the custody of a State Sheriff; and in Baldwin v. Franks, 120
U.S. 678, 7 S.Ct. 656, 763, 30 L.Ed. 766, where the rights of a Chinese
under a treaty of the United States were involved. It was again held that
the power of Congress was not extended to protect against violations by
individuals of the general rights of persons and citizens by the mention of
such rights in the Fourteenth Amendment, U.S.C.A., in the Civil Rights
Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. The reasoning of these cases,
though opposed by some dissents, is full and convincing, and the conclusion
reached as to the effect upon federal power of the Fourteenth Amendment has
stood for more than two generations. Pursuing further the application
of the statute now
before us, in Baldwin v. Franks, supra, it was held the word "citizen"
means citizen of the United States in a political sense, and did not
include a resident Chinese. Again in Hodges v. United States, 203 U.S. 1,
27 S.Ct. 6, 51 L.Ed. 65, the section was invoked against conspirators who
were charged with interfering with citizens in their right or liberty of
contracting to work in a lawful occupation, but the court held that this
was a common right of all persons, and the Fourteenth Amendment did not put
it under federal protection except against State action; and the fact that
the persons there involved were negroes did not bring the matter within the
special ambit of the Thirteenth Amendment. Similarly in United States v.
Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270,
the right invaded by the conspirators was the citizen's right to remain in
the State of his choice, and to remove only at his own will. The Court
conceded the right to be fundamental and to belong to the citizens of each
State, and to be guarded in part against State interference by Art. 4,
Sect. 2 of the Constitution, but held that no federal offense was involved
in an abduction done by individual conspirators. The only case cited to us
in which a conspiracy against the right of freedom of speech was involved
is United States v. Hall, in the Circuit Court of Alabama, 26 Fed.Cas. 79,
No. 15,282. Justice Woods there upheld the indictment, but this was in
1871, before the decision of any of the above cited cases in the Supreme
Court, and it is not reconcilable with his own opinion in United States v.
Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290. We are
controlled by the above cited decisions of the Supreme Court. That the
right of free speech and a free press, understood with the limitations to
prevent abuses which the law has always annexed to these freedoms, is
fundamental to the continuance of free political institutions, and is the
right both of citizens and other persons in the United States and the
several States needs no reassertion. The ground has been covered recently
and the right vindicated as against State action by federal power by
virtue of the Fourteenth Amendment, in such cases as Grosjean v. American
Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; De Jonge v. Oregon,
299 U.S. 353, 57 S.Ct. 255, 81 L. Ed. 278; Herndon v. Lowry, 301 U.S. 242,
57 S.Ct. 732, 81
L.Ed. 1066; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949;
Schneider v. State of New Jersey (Town of Irvington), 60 S.Ct. 146, 84
L.Ed. ___; Frank Hague v. Committee for Industrial Organization, 307 U.S.
496, 59 S.Ct. 954, 83 L.Ed. 1423. But this effect of the Fourteenth
Amendment on State action, as has been shown, is not enough to bring
conspiracies of individuals within the punitive power of Congress under the
section we are discussing. Nor can the special mention of freedom of speech
and press in the First Amendment have that effect. The provision there is
"Congress shall make no law * * * abridging the freedom of speech, or of
the press." That the first ten amendments were intended as limitations on the
power of the federal government and are not grants of power to it has been
established from the beginning. A flat prohibition against the regulation
of a matter in one direction cannot result in endowing Congress with power
to regulate it in another direction. This amendment, while regarding
freedom in religion, in speaking and printing, and in assembling and
petitioning the government for redress of Page 151 grievances as
fundamental and precious to all, seeks only to forbid that Congress should
meddle therein. If Congress can make any law in behalf of these it is
because of some power elsewhere expressly granted, or because it is a law
necessary and proper to carry out such power. We are familiar with federal
laws touching on freedom of speech and press such as the Espionage Law of
1917, 40 Stats. 217 , which rested on the war power of Congress and the
general implied power to maintain the safety of
the Government. See Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249,
63 L.Ed. 561; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed.
470. And we do not doubt that Congress may directly protect its citizens in
their right to assemble peaceably and petition the federal government for
redress, just as it may protect persons from unlawful violence while in
federal custody, under what are called the implied powers of Congress.
Federal elections might probably be directly protected by Congress
although no question of race, color, or previous condition of servitude
under the Fifteenth Amendment be present. But in the cases supposed
Congress would interfere directly only because of the necessity to maintain
a federal right in its integrity. Because the federal
government is a republican one in which the will of the people ought to
prevail, and because that will ought to be expressive of an informed public
opinion, the freedom of speaking and printing on subjects relating to that
government, its elections, its laws, its operations and its officers is
vital to it. Assuming that for this reason Congress, if it finds it
necessary, can legislate to maintain such freedom in that field, it does
not follow that Congress can legislate generally to preserve such freedom
in discussing religious affairs, or social or artistic matters, or matters
of purely State concern. Again, by Art. 4, Sect. 4, of the Constitution the
United States shall guarantee to every State a republican form of
government. Should a tyranny be set up in a State accompanied by a
suppression of free speech and press, conceivably the Congress might be
called on, temporarily in the execution of this guaranty, to pass a law
securing against individual
violence free speech in such State; but the section before us is not such
a law. The dividing line between the powers of the State and federal
governments in preserving these great general rights of persons, and the
difference between the rights and privileges of a citizen of the State and
of the United States, was clearly recognized in United States v.
Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, when the section under
discussion first came before the Supreme Court. It was there stated that
the right of assembly to petition Congress would be "an attribute of
national citizenship, and, as such, under the protection of, and guaranteed
by, the United States", and "if it had been alleged * * * that the object
of the defendants was to prevent a meeting for such a purpose, the case
would have been within the statute, and within the scope of the sovereignty of the
United States." But since the indictment only alleged generally that the
meeting was "for a lawful purpose", no crime was charged, because the
protection of the right of assembly in general was in the power of the
State. The other counts alleged conspiracies generally to deprive of the
equal protection of the law, and of life and liberty without due process
of law, and the Fourteenth Amendment was held not to extend federal power
as to those matters beyond the controlling of State action. On the
authority of the Cruikshank case the counts in the present indictment,
which do not disclose what the speaking and printing conspired against
related to, charge no offense, because the right to freely speak and print
about matters in general is not "secured by the Constitution and laws of
the United States." The other counts which state the speaking and printing
related wholly to matters with which the City and County of Mobile were
concerned, and with which the
United States had no concern, expressly disclose the matter to have been
beyond the authority of Congress, and not a right or privilege protected
by the section. The demurrers to the indictment ought therefore to have
been sustained. The judgment is reversed, the conviction set aside, and the
cause remanded with direction to sustain the demurrers. Page 152 Page 178
POWE et al. v. UNITED STATES.
No. 9130.
Circuit Court of Appeals, Fifth Circuit.
January 17, 1940.
Page 148 Appeals from the District Court of the United States for the
Southern District of Alabama; John McDuffie, Judge. Sam B. Powe and
others were convicted for conspiring to injure, oppress, threaten and
intimidate a named citizen of the United States in the free exercise of his
right and privilege as such
citizen to speak and publish his views in certain newspapers, and they
appeal. Reversed and remanded with direction. Harry T. Smith, D.R.
Coley, Jr., and George A. Sossaman, all of Mobile, Ala., for appellants.
Francis H. Inge, U.S. Atty., of Mobile, Ala., for appellee. Before
SIBLEY, HUTCHESON, and McCORD, Circuit Judges. SIBLEY, Circuit Judge.
The five appellants were indicted (with another who was acquitted) for
conspiring to injure, oppress, threaten and intimidate a named citizen of
the United States in the free exercise of his right and privilege as such
citizen to speak and publish his views in certain newspapers. Their several
demurrers were overruled and appellants Page 149 were convicted and
sentenced. Of the numerous rulings
asserted to be error on this appeal we need consider only the judgment
upon the demurrers. The grounds of demurrer to each count include
these: That no crime against the United States is charged; that the right
of free speech and free press is not secured by the Constitution and laws
of the United States against infraction by individuals, but only by federal
or State action; and that the counts are too vague. The eight counts are
varying statements of the same conspiracy. Some of them say the conspiracy
was to prevent future publications; others to oppress and injure because of
past publications. Some counts state the nature of the publications, and
the means to be used to oppress the writer; others fail so to state, baldly
alleging in the words of the statute a conspiracy to injure and oppress the
citizen of the United States in the exercise of or for having exercised his
privilege of free speech and free press. One of the fullest statements is the
second count, which charges that the conspiracy was to injure and oppress
the executive editor of the Mobile Register and the Mobile Press,
newspapers published in Mobile, Alabama, he being a citizen of the United
States, in his exercise of his right and privilege secured to him by the
Constitution and laws of the United States, to write and print in said
newspapers his editorials exposing and condemning various forms of illegal
gambling and illegal lotteries in Mobile County, Alabama, and calling upon
the officials of the City of Mobile and County of Mobile, charged with the
suppression thereof, to take action to suppress the same and to punish the
offenders; the plan being to procure a photograph of the editor in a lewd
or obscene act and to use the same in threatening to show the photograph,
and in threatening
to use it as evidence in prosecuting the editor, and thus to stop his
publications; numerous overt acts to carry out the plan being alleged. Do
these facts make an offense against the United States? The statute
relied on in support of the indictment originated as Section 6 of the Act
of May 31, 1870, 16 Stat. 141 , entitled "An Act of enforce the Right of
Citizens of the United States to vote in the several States of this Union,
and for other Purposes." It appeared in the Revised Statutes with some
alteration as Section 5508; was carried without change into the Criminal
Code as Section 19; and now appears as Section 51 of Title 18 of the United
States Code, 18 U.S.C.A. § 51. The applicable language is: "If two or more
persons conspire to injure, oppress, threaten, or intimidate any citizen in
the free exercise or enjoyment of any right or privilege secured to him by
the Constitution or laws of the United States, or because of his having so exercised
the same * * * they shall be fined not more than $5,000 and imprisoned not
more than ten years, and shall, moreover, be thereafter ineligible to any
office, or place of honor, profit, or trust created by the Constitution or
laws of the United States." Some of the Sections of the Enforcement Act of
1870 were repealed in 1909, but Section 6, as then reenacted, stands good
for whatever it properly covers. United States v. Moseley, 238 U.S. 383, 35
S.Ct. 904, 59 L.Ed. 1355. In its construction it is proper to apply the
rule that criminal laws are to be construed strictly, and to bear in mind
that other rule that a construction is to be avoided, if possible, that
would render the law unconstitutional, or raise grave doubts thereabout. In
view of these rules it is held that "citizen" means "citizen of the United
States", and not person generally, nor citizen of a
State; and that the "rights and privileges secured by the Constitution or
laws of the United States" means those specially and validly secured
thereby. Thus limited, this section has been enforced as constitutional. Ex
parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; United States v.
Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673; Logan v. United States, 144
U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; United States v. Moseley, supra. In
the Yarbrough case the right involved was that to vote in a Congressional
election, as it was in the Moseley case; in the Waddell case it was the
right to make a federal homestead entry; and in the Logan case it was the
right to be secure from
lawless violence while a prisoner in the hands of a United States Marshal.
These matters, all within the federal power, Congress could protect under
the general authority to pass "all necessary and proper laws", under
U.S.C.A. Constitution, Art. 1, Sect. 8, Par. 18. But Section 5519 of the
Revised Statutes, which undertook similarly to punish conspiracies against
any person to deprive him of the equal protection of the laws, or Page 150
to prevent State authorities from affording such protection, was held
unconstitutional, because neither the Fourteenth Amendment nor any other
part of the Constitution put the matter of conspiracies by individuals
touching such matters within the power of Congress, but only gave power to
correct wrong action by the State or its officers. It was so held in United
States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290, where the person
mobbed was in the custody of a State Sheriff; and in Baldwin v. Franks, 120
U.S. 678, 7 S.Ct. 656, 763, 30 L.Ed. 766, where the rights of a Chinese
under a treaty of the United States were involved. It was again held that
the power of Congress was not extended to protect against violations by
individuals of the general rights of persons and citizens by the mention of
such rights in the Fourteenth Amendment, U.S.C.A., in the Civil Rights
Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. The reasoning of these cases,
though opposed by some dissents, is full and convincing, and the conclusion
reached as to the effect upon federal power of the Fourteenth Amendment has
stood for more than two generations. Pursuing further the application
of the statute now
before us, in Baldwin v. Franks, supra, it was held the word "citizen"
means citizen of the United States in a political sense, and did not
include a resident Chinese. Again in Hodges v. United States, 203 U.S. 1,
27 S.Ct. 6, 51 L.Ed. 65, the section was invoked against conspirators who
were charged with interfering with citizens in their right or liberty of
contracting to work in a lawful occupation, but the court held that this
was a common right of all persons, and the Fourteenth Amendment did not put
it under federal protection except against State action; and the fact that
the persons there involved were negroes did not bring the matter within the
special ambit of the Thirteenth Amendment. Similarly in United States v.
Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270,
the right invaded by the conspirators was the citizen's right to remain in
the State of his choice, and to remove only at his own will. The Court
conceded the right to be fundamental and to belong to the citizens of each
State, and to be guarded in part against State interference by Art. 4,
Sect. 2 of the Constitution, but held that no federal offense was involved
in an abduction done by individual conspirators. The only case cited to us
in which a conspiracy against the right of freedom of speech was involved
is United States v. Hall, in the Circuit Court of Alabama, 26 Fed.Cas. 79,
No. 15,282. Justice Woods there upheld the indictment, but this was in
1871, before the decision of any of the above cited cases in the Supreme
Court, and it is not reconcilable with his own opinion in United States v.
Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290. We are
controlled by the above cited decisions of the Supreme Court. That the
right of free speech and a free press, understood with the limitations to
prevent abuses which the law has always annexed to these freedoms, is
fundamental to the continuance of free political institutions, and is the
right both of citizens and other persons in the United States and the
several States needs no reassertion. The ground has been covered recently
and the right vindicated as against State action by federal power by
virtue of the Fourteenth Amendment, in such cases as Grosjean v. American
Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; De Jonge v. Oregon,
299 U.S. 353, 57 S.Ct. 255, 81 L. Ed. 278; Herndon v. Lowry, 301 U.S. 242,
57 S.Ct. 732, 81
L.Ed. 1066; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949;
Schneider v. State of New Jersey (Town of Irvington), 60 S.Ct. 146, 84
L.Ed. ___; Frank Hague v. Committee for Industrial Organization, 307 U.S.
496, 59 S.Ct. 954, 83 L.Ed. 1423. But this effect of the Fourteenth
Amendment on State action, as has been shown, is not enough to bring
conspiracies of individuals within the punitive power of Congress under the
section we are discussing. Nor can the special mention of freedom of speech
and press in the First Amendment have that effect. The provision there is
"Congress shall make no law * * * abridging the freedom of speech, or of
the press." That the first ten amendments were intended as limitations on the
power of the federal government and are not grants of power to it has been
established from the beginning. A flat prohibition against the regulation
of a matter in one direction cannot result in endowing Congress with power
to regulate it in another direction. This amendment, while regarding
freedom in religion, in speaking and printing, and in assembling and
petitioning the government for redress of Page 151 grievances as
fundamental and precious to all, seeks only to forbid that Congress should
meddle therein. If Congress can make any law in behalf of these it is
because of some power elsewhere expressly granted, or because it is a law
necessary and proper to carry out such power. We are familiar with federal
laws touching on freedom of speech and press such as the Espionage Law of
1917, 40 Stats. 217 , which rested on the war power of Congress and the
general implied power to maintain the safety of
the Government. See Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249,
63 L.Ed. 561; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed.
470. And we do not doubt that Congress may directly protect its citizens in
their right to assemble peaceably and petition the federal government for
redress, just as it may protect persons from unlawful violence while in
federal custody, under what are called the implied powers of Congress.
Federal elections might probably be directly protected by Congress
although no question of race, color, or previous condition of servitude
under the Fifteenth Amendment be present. But in the cases supposed
Congress would interfere directly only because of the necessity to maintain
a federal right in its integrity. Because the federal
government is a republican one in which the will of the people ought to
prevail, and because that will ought to be expressive of an informed public
opinion, the freedom of speaking and printing on subjects relating to that
government, its elections, its laws, its operations and its officers is
vital to it. Assuming that for this reason Congress, if it finds it
necessary, can legislate to maintain such freedom in that field, it does
not follow that Congress can legislate generally to preserve such freedom
in discussing religious affairs, or social or artistic matters, or matters
of purely State concern. Again, by Art. 4, Sect. 4, of the Constitution the
United States shall guarantee to every State a republican form of
government. Should a tyranny be set up in a State accompanied by a
suppression of free speech and press, conceivably the Congress might be
called on, temporarily in the execution of this guaranty, to pass a law
securing against individual
violence free speech in such State; but the section before us is not such
a law. The dividing line between the powers of the State and federal
governments in preserving these great general rights of persons, and the
difference between the rights and privileges of a citizen of the State and
of the United States, was clearly recognized in United States v.
Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, when the section under
discussion first came before the Supreme Court. It was there stated that
the right of assembly to petition Congress would be "an attribute of
national citizenship, and, as such, under the protection of, and guaranteed
by, the United States", and "if it had been alleged * * * that the object
of the defendants was to prevent a meeting for such a purpose, the case
would have been within the statute, and within the scope of the sovereignty of the
United States." But since the indictment only alleged generally that the
meeting was "for a lawful purpose", no crime was charged, because the
protection of the right of assembly in general was in the power of the
State. The other counts alleged conspiracies generally to deprive of the
equal protection of the law, and of life and liberty without due process
of law, and the Fourteenth Amendment was held not to extend federal power
as to those matters beyond the controlling of State action. On the
authority of the Cruikshank case the counts in the present indictment,
which do not disclose what the speaking and printing conspired against
related to, charge no offense, because the right to freely speak and print
about matters in general is not "secured by the Constitution and laws of
the United States." The other counts which state the speaking and printing
related wholly to matters with which the City and County of Mobile were
concerned, and with which the
United States had no concern, expressly disclose the matter to have been
beyond the authority of Congress, and not a right or privilege protected
by the section. The demurrers to the indictment ought therefore to have
been sustained. The judgment is reversed, the conviction set aside, and the
cause remanded with direction to sustain the demurrers. Page 152 Page 178
Truly, sincerely, and without prejudice,
Bob Hurt, All Rights Reserved
2460 Persian Drive #70 * Clearwater, Florida 33763 * USA
+1 (727) 669-5511 * bob@bobhurt.com
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